A police constable has been awarded £43,000 after she was found to have been victimised by her boss over her inability to work in cold weather. Rob Moss takes an in-depth look at a case that includes reasonable adjustments, protected acts and detriments, and a claim for direct disability discrimination that was dismissed.
Glasgow employment tribunal found that Pc Gemmell was “ambushed” in a “return-to-work interview” at Police Scotland that lasted more than two hours.
Reasonable adjustments
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An accident in 2014 left Gemmell with neuralgia, a nerve condition which the tribunal heard was aggravated by cold weather.
She was removed from frontline policing in 2016 and given a role in the service delivery unit (SDU), a team that handles leave requests and organises resources for events such as football matches and protests.
Background
The SDU was originally based at Govan police station in Glasgow, but moved to Stewart Street in 2021. Gemmell remained at Govan because the effects of her disability were exacerbated by travelling distances by car.
The tribunal heard that SDU’s work was difficult. It involved juggling resources to meet competing demands and operated 24 hours a day.
Gemmell was line managed by various sergeants during her time at SDU. Sergeant McBlane and Sgt Mathers were managers during the events giving rise to the claim. Inspector Gow was appointed to run the unit in early 2022.
In April 2022, Gemmell felt she needed support managing her workload. She contacted McBlane to ask for help. His precise response was disputed: McBlane told the tribunal he asked her to put resource requests on a spreadsheet for reallocation; Gemmell said he told her to “just do her job”.
A witness said the conversation became heated, with both of them raising their voices and shouting at each other.
Morale was low. Gemmel sent Gow eight emails between April and June, setting out matters which caused her concern about how the department operated, making suggestions for improvement. A department meeting was held in June, but Gemmell “did not say much,” the tribunal heard.
Stress absence
From 7 September to 14 October 2022, Gemmell was absent from work due to stress. While on leave, she messaged managers about finding a new office at Govan because the department with which she shared a room was relocating, and she would be left alone in a large room.
McBlane replied that there was no problem with Gemmell remaining at Govan, but if having company was an issue, then would she consider moving to Stewart Street or consider a move to another department, such as crime management?
The claimant also suggested she needed an occupational health referral, so she could explain why she needed adjustments. McBlane explained that she would need an attendance support meeting (ASM) first and that she should arrange this with another sergeant, as he was going on annual leave.
The tribunal heard no evidence that Gemmell ever contacted another sergeant to arrange an ASM and no OH referral was made at this time.
It is difficult not to see a degree of vindictiveness in the comments made to the claimant” – Employment Judge O’Donnell
On the morning of 16 December 2022, Gemmell emailed about cold weather, describing herself as being in “high pain”. She made reference to adjustments on her HR record regarding attendance in inclement weather.
She was not due to start her shift until 2pm and stated that she was going to struggle, saying she was not sure what to do. She also stated that she needed another plan because she was forcing herself into work when she is in pain.
McBlane replied, informing her he had spoken to Gow and that they could have a discussion “next week” about how to move forward. He said he hoped she could make it in but if not, she should follow the normal absence reporting process.
The claimant replied saying she had no choice but to phone in sick. She also made reference to having been through this before with other sergeants and that the Scottish Police Federation had previously issued a “formal warning” to Police Scotland about her adjustments being mismanaged.
Gemmell reported in sick that day and, because of her rostered shifts, did not return to work until 21 December. During this time, she informed her Police Federation rep, Ian Florence, about issues with her supervisors in relation to her disability and adjustments.
Florence spoke to Gow to suggest arranging a “disability passport” for Gemmel to avoid her having to explain her adjustments each time she had a new manager.
‘Return-to-work interview’
On 21 December 2022, Gow and McBlane attended Govan to meet Gemmell. Neither she nor her rep had been informed. She asked if the meeting was about her disability passport. Gow replied that it was her return-to-work interview.
The tribunal noted that return-to-work interviews involved completing a pro forma document and did not tend to take very long.
According to notes made by Gemmell following the meeting, it began with Gow saying he was annoyed that she had approached the Police Federation without warning him. Gemmell replied that she had no choice.
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He said he hoped she was happy with the rep, Florence, as he was in “complete agreement” with Gow and not Gemmell.
Gow said she was taking up too much of his time, having spent two days in meetings and calls about her when he had a division to look after.
He asserted that he had never managed anyone like her and was “raging” that Florence had said she did not feel supported.
Gow said she would get her disability passport and that he agreed it needed doing, as well as an OH referral.
Gemmell explained she had been unable to attend the office on 16 December due to her disability and so had phoned in sick as instructed.
Inclement weather
Gow asked when something similar had last occurred. Gemmell said her adjustments were put in place in 2019. She explained that she takes a lot of the winter off because of the weather and that it had not happened again or she could not remember it happening.
He asked what was meant by “inclement weather” and she replied it meant snow or ice. He said it could mean wind too, and asked Gemmell if she just did not come in if she did not “fancy” the weather. She said she did not need an adjustment for wind.
Gow then stated that he wanted to move her to crime management. She asked if this was because she went to the Police Federation, and he replied that he could see how it might appear like that, but he had been planning this for some time because she was not happy in the department.
She responded that she was happy doing her job and that she loved it. She was not happy at not being fit and having to have an office job, but had to accept that.
Gow then stated that colleagues did not like her, and she had an adverse effect on them. He said supervisors found her a problem to manage, people could not work with her, and no one had a nice word to say about her.
The meeting, which lasted more than two hours, concluded with Gow stating that they were going round in circles and Gemmell saying she did not understand the purpose of the meeting. Gow said he was going to arrange a further meeting and get HR and the “supers” to attend.
She was asked whether she wanted to go home, and Gemmell replied that she was going off sick. After the meeting, the claimant went into the toilets in tears and contacted Florence. He described the claimant as being “extremely upset”.
Gemmell went off sick that day and did not return. She was on full pay until February 2024. The claimant’s pay was reinstated but, in total, she was without pay for nearly a year.
She raised a grievance about the events giving rise to this case. This was heard by Police Scotland but was not upheld.
Claims against Police Scotland
Gemmell claimed direct disability discrimination for Police Scotland’s intention to move her from Govan, and for being shouted at by McBlane in April 2022. She also claimed direct discrimination and victimisation for being denied an OH referral in October 2022; for being rostered off sick on 16 December; and for the conduct of the “return-to-work” meeting.
However, the judge dismissed her direct discrimination claims, saying there was “no evidence at all” that someone without Gemmell’s disability would have been treated any differently.
The judgment said: “There was also an element in the claimant’s case of ‘putting the cart before the horse’. She gave evidence that the way she had been treated had worsened or triggered the symptoms of her disability, but that is taking matters the wrong way round. The treatment in question has to be caused by the disability for there to be direct discrimination.”
However, for the victimisation claims, the employment tribunal had “no hesitation in accepting” that Gemmell’s contacting the Police Federation was a protected act.
It dismissed the claims relating to the OH referral and Gemmell being rostered off sick, because these detriments happened before that contact took place. However, the return to work meeting was different.
‘Ambush’
The tribunal concluded that the manner in which the meeting was conducted amounted to a detriment because there was no advance warning; because Gow had “always intended” for it to be more than just a return to work meeting; because it amounted to an “ambush” and Gemmell had no opportunity to prepare; and because she was deprived of an opportunity to have Police Federation representation.
The judgment said: “The picture that emerges of this meeting is that the claimant was subject to an attack by [Gow] without any prior warning or opportunity to prepare to defend herself. The claimant’s note of the meeting does not read like a return-to-work interview or a meeting to discuss and clarify the claimant’s adjustments. It reads like a disciplinary meeting where an employee is being told that their attitude and behaviour is unacceptable.”
The tribunal ruled that, “consciously or subconsciously, the manner in which [Gow] conducted the meeting was because of the protected acts”.
The judgment said that Gemmell remains employed by Police Scotland, and the panel were satisfied that the loss of wages caused by her absence from work was because of the victimisation.
It awarded £28,100 in lost wages, plus interest of £2,910. The tribunal also awarded £10,000 for injury to feelings, plus interest of £2,070. The total award was £43,100.
Employment Judge O’Donnell said: “It is difficult not to see a degree of vindictiveness in the comments made to the claimant by [Gow] about how others view her, and the tribunal does consider that there was an element of [Gow] seeking to put the claimant in her place by raising these issues in the very blunt way that he did.”
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