A probationer police constable has won a disability discrimination case against the Metropolitan Police Service (MPS) after being dismissed in July 2021. He had been on probation for five years.
Shafi Karim who wore NHS hearing aids had applied to join the MPS in September 2014 and completed a medical history questionnaire the following March.
The Central London Employment Tribunal heard at a number of hearings in October and November 2022 that the claimant underwent an audiology test on 17 August 2015.
Eight days later the MPS’ consultant otolaryngologist wrote a letter that confirmed Karim’s ‘performance in a free field setting was acceptable in respect of hearing and that, with the aids in situ and functioning, he would be able to function satisfactorily as a police constable’.
Later that year, on 30 November, Karim started as a probationer police constable with the MPS. The tribunal heard that the purpose of the 24-month probation period is for the individual to ‘demonstrate that they are fit, physically and mentally, to perform duties of a fully operational officer and that they are likely to become an efficient and well-conducted constable’.
During the course of the probation, the probationer is expected to have successfully completed the entire core competencies as outlined in their Student Officer Record of Competence (SOROC).
As part of the SOROC, the probationer is required to deal with people on the street, ‘in confrontational scenarios’, as well as conduct ‘stop and searches’. The tribunal heard that in all confrontational scenarios, the trainee officer had to be ‘fully deployed’ and the scenarios could not be completed if the individual was only ‘carrying out adjusted duties in office-based roles’.
Regulation 13 Police Regulations 2003, however, gives the MPS the authority to dispense with the probationer’s services at any time if the ‘chief officer’ feels the individual is ‘not fitted, physically or mentally, to perform the duties of his [or her] office, or that he [or she] is not likely to become an efficient or well-conducted constable…’.
The tribunal heard that, on 25 February 2016, Karim was referred to the MPS’ occupational health because, ‘He struggled with… hearing while training outside. He… had problems with the background noise, all [that] he could hear on the radio was echoing.’
Although the probationer completed training school and joined the MPS’ Islington Borough Command Unit on 9 March 2016, he was assigned a non-operational role. The tribunal heard that this was because his operational Coach Patrol Model (CPM) had been put on ‘pause’ until he was assessed to be ‘street fit’. His training had highlighted risks related to his NHS hearing aids.
The tribunal was also told that, on 15 April 2016, an ENT specialist was asked to conduct a hearing assessment in a ‘live’ environment. The test’s purpose was to replicate the conditions Karim would face when he was on patrol. The specialist noted that the trainee officer had voiced difficulties hearing in a windy environment with traffic in the background.
On 6 September 2016, Dr Samantha Phillips, an occupational health doctor, provide a report that explained that Karim had undergone further audiology testing. The report noted that his hearing with his NHS hearing aids in the ‘speech frequency range was adequate in a quiet, rather than operational, environment’, the tribunal heard. Dr Phillips concluded that Karim was, ‘medially fit for full operational duties if you are satisfied that his hearing is safe in operational settings’.
That same day, Karim was posted to the Safer Neighbourhoods Team at Finsbury Park where he worked on patrol with another officer, which enabled him to maintain his operational status. This lasted until July 2017.
In February 2017, Karim was assigned PS Matt Stringer as his line manager and he posted the probationer to a ‘station officer role’ at Islington Police Station in July with ‘restricted duties’. Stringer noted that the trainee had ‘raised concerns about his hearing’ – he received ‘feedback’ if objects came too close to his hearing aids. In addition, the line manager noted that Karim did not always hear when spoken to by a number of officers.
Taking these points into consideration, Stringer referred Karim to occupational health and applied for his probationary period to be extended.
The tribunal heard that on 15 September 2017, Dr Phillips wrote to Stringer and proposed Karim take a ‘functional hearing test’ and recommended the MPS cover the cost. Funding for a test with Thames Valley Police was subsequently secured from the borough.
Karim had completed 24 SOROCs by 6 November 2017, but the tribunal was told that he still had 16 outstanding. Although his original two-year probation was due to end later that month, on 29 November, a Regulation 12 conference decided this should be extended to 29 November 2018.
On 17 January 2018, Dr Phillips provided another report advising two adjustments to help Karim in his role. The first was ‘to have in ear good quality hearing aids’ while the second was ‘to have a functional assessment to determine whether he is able to hear adequately to undertake the role’.
The occupational health doctor added that it was a business decision for the MPS ‘whether funding the adjustments was reasonable or not’, the tribunal heard, and that HR should advise on provision of hearing aids. She also said that the cost of the adjustments needed to be ‘weighed against’ the cost implication of the trainee completing his probation. Dr Phillips added that she had advised Karim about contacting Access to Work to see if they would assist with funding the hearing aids.
HR responded on 25 January 2018 and advised that there were two types of ‘superior’ hearing aids that could replace Karim’s ‘standard’ NHS specification and which would be suitable so he could ‘complete his probation’ and also ‘satisfy officer safety concerns’. One was an ‘in ear’ type and the other was an ‘implant’.
In February, Karim was assigned a new line manager, PS Ryan Davenport, who was given a handover note which included an outline of Dr Phillips’ recommendations.
On 3 March, Karim’s new line manager told him to get quotes on hearing aids and to make an ‘Access to Work’ application for financial support with a 19 March deadline. He was told he would have to pay a contribution towards the equipment.
The tribunal took into consideration that PS Davenport had made it clear to Karim that, if he did not pay 2/7 of the enhanced ‘in ear’ hearing aids, he would not be provided with them.
After contacting Access to Work, Karim was advised to purchase a ‘cheaper equipment option’, a Roger Pen bundle, which ‘would act as a microphone’ and ‘enhance the sound’ in his NHS hearing aids.
Following this communication, Karim said that the best option would be to wear his ‘current NHS hearing aids in combination with bolt-ons from the hearing aid companies’, the tribunal heard. He submitted his Access to Work application on 30 March and shortly afterwards agreed to pay 2/7 of the cost of the Roger Pen bundle.
However, on 16 May 2018, Karim attended a meeting with PS Davenport in which he raised concerns about the trainee’s performance and issued an action plan designed to improve it. The next day the line manager emailed the claimant and informed him his performance had deteriorated. The very next day, 18 May, Karim was signed off work sick by his GP for ‘stress at work’.
Karim was assigned another line manager (PS Dawson) on 18 July and briefly returned to work that same day, but then took a further period of sick leave, until 16 September 2018.
After being notified that he needed to attend a Regulation 13 case conference on 17 September 2018 to discuss his performance and attendance, Karim arrived on the date and was also informed about non-completion of his SOROCs and HYDRAS.
The tribunal heard that the claimant then submitted a grievance on 28 September 2018.
Three days later, PS Dawson wrote to Karim issuing a Regulation 13 Formal Warning Notice that said he needed to ‘achieve a substantial and consistent improvement’ in his performance and attendance. He was told his performance would be reviewed in a month’s time and his probation was extended to May 2019.
When his grievance outcome was provided on 7 March 2019, the Grievance Assessor recommended that his performance be assessed in isolation, rather than be compared to other officers, the tribunal heard. In addition, Karim’s ‘disability should be considered when decisions were made’.
The claimant’s probation period continued to be extended and he remained in a non-operational role undertaking office work. After an eleventh extension on 28 February 2021, Karim’s probation was extended for three months on 19 April for ‘simulated tests, in operational policing environments’ using his Roger pen.
Karim was subsequently asked to complete ‘at works tests’ to prove his ability to work at operational level using his new equipment. He had last been operational in July 2017.
However, PS Bushell, a police sergeant who assisted in the ‘at works tests’, voiced concern at how reliant Karim was on the Roger pen and that if he used it on the streets as an operational officer, it could be knocked out of his hands.
The tribunal heard that in another test, his hearing aid battery died and he was forced to stop and change it.
During another exercise using a radio, PS Bushell said he had to repeat his transmission multiple times before Karim understood him. Karim also complained that during a ‘blue light run’ exercise the lights produced feedback to his hearing aids and the sound was ‘torture’.
PS Bushell told the tribunal that, ‘based on what he observed, he did not feel that [Karim] was capable of becoming a fully operational and effective police officer, and he was concerned for his safety and the safety of others’.
Karim’s appointment as a probationary police constable was terminated under Regulation 13 of Police Regulations 2003 on 12 July 2021 with immediate effect.
Reviewing Karim’s claims, the tribunal said he had been subjected to indirect discrimination arising from disability by dismissing him.
The panel also concluded that the MPS had failed to make reasonable adjustments on account of his disability by not paying the full cost of the enhanced in-ear hearing aids as recommended by Dr Phillips among others and not paying the insurance on the enhanced in-ear hearing aids as well.
Karim had brought a further claim of direct discrimination – he accused the MPS of making a ‘stereotypical assumption’ that his hearing impairment ‘rendered him incapable’ of performing front-line duties despite him ‘meeting the medical standard of hearing set by the College of Policing’. However, the tribunal dismissed this claim.
Summing up, employment judge Jillian Brown said the requirement to undertake an ‘at works test’ put the disabled probationary officer at a ‘substantial/particular disadvantage’, compared to non-disabled officers.
‘The test was a “pass or fail” test and, because he failed it, he was dismissed,’ the judge said, adding that ‘making the reasonable adjustments would have been proportionate and objectively justified. There were less discriminatory ways of achieving those legitimate aims, without detracting from the need to ensure that the claimant was capable of performing the duties of a police officer.’
The judge said the MPS should never have required Karim to pay the cost of the in-ear enhanced hearing aids, adding that requiring him to ‘insure the hearing aids – which were work equipment – was completely unjustified’.
‘As work equipment, they should have been insured by [the MPS] in the same way as all [his] other equipment.’
A hearing to decide the claimant’s compensation will be held at a later date.
Commenting on the wider lessons, Charlotte Dowson, Associate in the Complex Injury team at Bolt Burdon Kemp, said: ‘This case serves as an important reminder that health and safety laws cannot be used to excuse discrimination against people with disabilities. There is absolutely no reason for an employee’s disability to be the reason for their redundancy, as long as there is a reasonable means of ensuring that they can still do their job.
‘In this case, reasonable adjustments could have been made to ensure that the trainee officer’s poor hearing didn’t make a difference to the quality and risk of his work. Senior staff refused to provide him with the enhanced hearing aids which would have helped him to do his job to a better standard. Even if there was no funding available for the new equipment, he could have been provided with a different role within the police force which didn’t require them.
‘Considering the excessive length of his probation, it’s likely that this employee’s dismissal wasn’t the first time he experienced disability-related discrimination in the police force.
‘If an individual’s disability is impacting their ability to do their job, it’s their employer’s responsibility to consider whether reasonable adjustment can be made to their role. In order for reasonable adjustments to actually be implemented, it’s vital that appropriate training is provided to senior staff to help them recognise other people’s disabilities, their own unconscious bias, and how to ensure this doesn’t impact the success of those individuals.’
