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Treatment based on how behaviour ‘appeared’ was not discrimination

Constable Aitken (A) was found to have a tendency to binge drink and was also diagnosed as having anxiety and obsessive compulsive disorder (OCD). At a work Christmas party A, having drunk heavily, acted in a sexist, aggressive and threatening manner to his colleagues. The Force’s chief medical officer reported that A was fit only for restricted duties and an office-based role with little public contact. There were continuing concerns about his behavior. A consultant psychiatrist, advised that while A did not present a specific risk while working in an office-based role with women, A could pose a danger to himself and others. Following a management meeting, A was moved to a role that involved close supervision and no public contact. The force decided to proceed with medical retirement as medical opinion then showed that A’s OCD was likely to be indefinite and that he was incapable of performing ordinary duties as a police officer. However that decision was reversed on appeal, but a psychiatrist recommended that A remain absent from work and have further treatment for his OCD.

A alleged that the Force’s handling of the Christmas party incident, its reliance on that incident in deciding to medically retire him, and acting on assumptions about mental illness amounted to disability discrimination. The Court of Appeal agreed with the tribunal’s decision to reject A’s claim. There was, in reality, no reason for A’s colleagues to have feared him. However, the force acted not on the basis of stereotypical assumptions about mental illness, but on the basis of how A appeared to others, and would have treated a non-disabled person whose behavior also appeared to be threatening and aggressive in an identical way. The Court also declined to address A’s argument that the Force had acted on the basis of his perceived disability. The tribunal had expressly rejected that allegation, finding instead that the employer acted on the basis of how A appeared to others. That was fatal to the contention that A was treated less favourably because of a mistaken belief, based on his behaviour, that he was suffering from a disability that he did not in fact have.

Case: Aitken v Commissioner of Police of the Metropolis IDS Brief 930

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