Assessing fitness for duty

There have been two recent employment tribunal cases involving police officers wanting to serve as an authorised firearms officer (AFO). One involved a ‘colour blind’ – more accurately referred to as colour vision deficiency (CVD) – officer who was applying to become an AFO. The other involved a serving AFO with high-frequency hearing loss.

The employment tribunals in both cases examined the draft national guidelines for eyesight and hearing introduced by the College of Policing in 2013, yet reached different conclusions about whether or not there had been discrimination. The guidelines have largely been adopted nationally but are yet to be ratified. This article looks at why apparently contradictory decisions have been reached, and how to reduce the risk that future application of the college guidelines may inadvertently breach the Equality Act 2010.

Mr Shields

Mr Shields had many years of distinguished service as an AFO, throughout which he had suffered from high-frequency hearing loss. There was no evidence that his hearing loss had ever caused any operational difficulty or issue. Mr Shields is not deaf, as was widely reported in the press.

During his time as an AFO, Mr Shield’s hearing had been tested on numerous occasions. From 2001 onwards he showed substantial loss over high frequencies in the right ear. In every test from April 2001, Mr Shields’ higher-frequency hearing loss had been above the threshold applied by the college guidelines in 2013. Following the introduction of the guidelines, in May 2014 Mr Shields took a hearing test, when it was found that his degree of high-frequency hearing loss in one ear exceeded the maximum permissible for an AFO. He was immediately removed from firearms duties. Subsequently his licence to carry firearms was revoked.

Mr Shields brought a claim in the employment tribunal, alleging that: (i) he had been indirectly discriminated against; (ii) he had been subjected to unfavourable treatment because of something arising in consequence of disability; and (iii) the respondent had failed in its duty to make reasonable adjustments. The force denied the claims.

Mr Ingledew

Mr Ingledew had been police officer since 2009. In 2014 he applied to be an AFO. Mr Ingledew has normal acuity but has severe red-green CVD, meaning that he cannot objectively distinguish between colours in the red-green spectrum. He passed all aspects of hearing and vision testing, apart from the test that dealt with colour. This eliminated him from the process.

It is common for those suffering with CVD to develop coping mechanisms, meaning that they may be able to identify, for example, a red car, by learning to identify a particular shade of grey as being red. Nevertheless, independent medical evidence suggested that despite such coping mechanisms, someone with Mr Ingledew’s type of CVD may well confuse red and green.

Mr Ingledew claimed that he had been indirectly discriminated against on the grounds of his sex because men are more likely to suffer from CVD than women and so men are more likely to fail the colour vision test. The force resisted the claim.

Indirect discrimination

While the claims differed in many respects, there was a large overlap in the legal issues they raised. Both officers claimed ‘indirect discrimination’. This may occur where an employer applies an apparently neutral provision, criterion or practice (PCP), such as a minimum height requirement, which disproportionately affects a particular group of people. A minimum height requirement is likely to disproportionately affect women, because they tend on average to be shorter than men.

Where the neutral PCP disproportionately affects a particular group, which includes the individual bringing the claim, the employer is required to justify the use of the PCP. In order to justify the PCP, it must be shown to be a proportionate means of achieving a legitimate aim. If the employer cannot justify the PCP – at least to the satisfaction of the tribunal – they will be found to have discr