The Metropolitan Police Service indirectly discriminated against a trainee police constable with hearing loss when it failed to make reasonable adjustments, including paying for high-end hearing equipment.
By not paying for hearing aids that had been recommended by an audiologist, employment tribunal claimant Mr Karim was forced to use equipment that was not suitable for an operational policing role, which ultimately led to his dismissal from the police force in 2021.
The Central London Employment Tribunal heard that Karim was moved into a non-operational role in 2016, shortly after joining the Met, as risks relating to his hearing aids were raised during his training. He struggled with hearing while training outside and had difficulties hearing what was being said on the radio.
Medically fit
An occupational health assessment later that year found that he was medically fit for full operational duties, and he was allowed to return to patrolling duties alongside another officer. However, in order for him to pass his probation, he needed to undergo a full hearing test in an operational setting. In the meantime, he was posted to a role within a police station and his probation was extended.
Disability discrimination
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During the course of his employment, from 2015 to 2021, Karim’s probation was extended more than a dozen times.
In January 2018, the OH doctor recommended reasonable adjustments including good-quality in-ear hearing aids and a functional assessment to determine whether he could hear adequately in an operational role.
Karim was told he would need to pay two-sevenths of the cost of the in-ear hearing aids, with the Met Police picking up the remainder of the costs. As these were costly, Access to Work recommended a cheaper equipment option, which included a microphone called a “Phonak Roger Pen”, which would enhance the sound of his existing hearing aids.
An independent audiologist later recommended enhanced hearing aids that would be better suited to challenging environments, tailored to his role as a police constable. This option was not taken up by the police force.
Karim remained in office-based roles until an “at works test” to assess his hearing and reactions in operational scenarios was arranged. This involved a confrontational scenario, a chasing exercise, a high street patrolling scenario in a busy shopping centre, and a “blue light run”.
Issues arose during all four scenarios, including Karim having to hold his Phonak Roger Pen out in front of him during the confrontational exercise, which was deemed dangerous; his hearing aid battery running out during the middle of a chase; having to ask the assessing officer to repeat messages relayed over the radio; and the sirens creating feedback in his hearing aids, which Karim described as “torture”.
Disability awareness training
The tribunal heard that his hearing equipment had not been tested for compatibility with the police van’s equipment, while the assessing officers had not undergone any disability awareness training, despite Access to Work making provision for this.
The officers who conducted the tests told the tribunal that, from their observations, they considered that the claimant was not capable of becoming a fully operational and effective police officer. They felt the Phonak Roger Pen would have been dangerous in a confrontational setting, as it could get knocked out of his hand leaving him vulnerable to being unable to hear.
He was dismissed from the police force in July 2021.
The tribunal considered that Karim had been put at a disadvantage compared with non-disabled probationary officers because he had been given office duties, rather than a chance to carry out duties in a confrontational setting as required to pass his probation.
Substantial disadvantage
The judgment says: “The claimant was put at a substantial disadvantage because he was away from operational duties for at least four years, which would inevitably have meant that his operational skills and knowledge would be lost. This meant that the claimant was more likely to underperform in a test which used operational skills.
“The tribunal concluded that there would have been the same group disadvantage to employees sharing the claimant’s disability.”
The tribunal felt that the practice of not providing full financial cover for necessary equipment meant that he had been provided with equipment that was only suitable for an office-based role, rather than the operational role he needed to carry out to remain with the police service.
It considered that it was a reasonable adjustment for the Met to pay the full cost of the enhanced hearing aids, as recommended by occupational health and the audiologist.
It added that he should have been provided with refresher operational training before the test, and should have had another opportunity to undertake the test before he was dismissed.
Judgment
The judgment concludes that Karim was dismissed for something arising from his disability: “It was clear, on the evidence, that the purpose of the at works test was to test the adjustments provided by Access to Work, and whether they were viable in an operational policing environment. The officers who conducted the test were clear that they were testing the claimant’s ability to hear and communicate and to use his equipment in confrontational settings, rather than testing his general policing skills.
“The ‘at works test’ was therefore related to the claimant’s disability and not his general policing skills. His failure of the ‘at works test’ arose from the officers’ assessment that he could not carry out his role safely using the Access to Work equipment. That arose from his disability, and not from his skill as a police officer.”
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A hearing later this year will determine what compensation Karim should receive.
A spokesperson for the Metropolitan Police said it was considering the judgment.
