No5 Barrister successfully acts for Police Officers in the EAT

Thu, 26 Mar 2020

Counsel at No5 Barristers’ Chambers has successfully acted for two police officers in an appeal against an Employment Tribunal judgement made in their favour following a decision to cap their compensation lump sum under the Voluntary Exit Scheme.

Colin Banham represented two long-standing officers, in their 40s, from Gwent Police, in a claim brought under s.15 of the Equality Act 2010 (discrimination arising from disability). The two officers left the force on January 31, 2017 and brought a claim before the Employment Tribunal, on the basis that the compensation lump sum paid to them under the Force’s Voluntary Exit Scheme was capped at six months’ pay.

Counsel had successfully argued, at first instance, that the decision to reduce the compensation lump sum because they were in possession of H1 certificates was unlawful. H1 certificates are awarded to officers where they are deemed to be permanently disabled for the performance of duties pursuant to Regulation A12 of the Police Pensions Regulations 1987. The possession of H1 certificates allows officers to apply for immediate access to a deferred pension upon leaving the force.

The Employment Tribunal found that, in the specific circumstances of this case, the possession of H1 certificates was ‘something arising’ from their respective disabilities. The compensation should have amounted to 21 months’ pay for one officer and 18 months for the other. However, the Respondent had arbitrarily reduced the compensation lump sum for both officers. This amounted to unfavourable treatment, which the Respondent failed to justify as a proportionate means of achieving a legitimate aim.

The two officers were therefore successful in their claim against the Chief Constable of Gwent on the basis that capping the compensation lump sums was discriminatory under section 15 of the Equality Act 2010.

The Respondent sought to appeal this decision on the following grounds:

(i) That the H1 Certificate did not arise from their qualifying disabilities pursuant to s.6 of the Equality Act 2010, but from their inability to carry out the ordinary duties of a police officer pursuant to Regulation A12 of the Police Pensions Regulations 1987, which was a significantly higher standard of fitness;

(ii) That the tribunal’s approach to unfavourable treatment under s.15 of the Equality Act 2010 was wrong in law and/or perverse in finding that capping of the Voluntary Exit Scheme compensation paid to the Claimants was unfavourable and that the tribunal was wrong to distinguish the case of Swansea University Pension and Assurance Scheme Trustees v Williams [2018] ICR 233, recently affirmed by the Supreme Court.

(iii) The tribunal was wrong in law and/or perverse in finding that the Respondent failed to discharge the burden of proof in establishing justification.

After hearing legal argument, the Employment Appeal Tribunal upheld the decision of the Employment Tribunal. HHJ Shanks (sitting alone) found that the H1 certificates were clearly “something arising in consequence of [their] disability” since the certificates were based on exactly the same impairments as the Equality Act disabilities. The Employment Appeal Tribunal also found that capping the compensation lump sum was clearly “unfavourable treatment”, as there was no reason to bring into account the deferred pension which they also received on leaving the force. In doing so, it found that the Employment Tribunal was correct to distinguish the case of Swansea University Pension and Assurance Scheme Trustees v Williams [2018] ICR 233. Furthermore, it was held that the material placed before the Employment Tribunal by the Chief Constable had not established that the unfavourable treatment was a proportionate means of achieving a legitimate aim. The fact that the officers were able to apply for immediate access to their deferred pensions was not sufficient to establish that the compensation lump sum amounted to a windfall, and the Chief Constable had not advanced or provided the material necessary to support any other legitimate justification.

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