In Katrina Hibbert v The Chief Constable of Thames Valley Police, a Thames Valley Police Sergeant suffering from complex PTSD was prohibited from operating her business due to taking too much sick leave. This was despite the therapeutic effects of the company on her mental health. The tribunal found that this constituted disability discrimination and that her resignation constituted constructive dismissal.
In this article, we consider the facts of the case and the judgment of the Employment Tribunal. In particular, we focus on the discrimination suffered by the claimant and the respondent’s failure to make reasonable adjustments to its Business Interests Policy.
The Facts of the Case
Thames Valley Police Sergeant Wished to Set Up an Events Business
Katrina Hibbert (the claimant) worked as an officer in the Thames Valley Police Force (the respondent) from 9 May 2004. From 2017, she worked as a safeguarding sergeant, helping to protect children and young people from drug and sexual exploitation. In the tribunal’s words, the claimant was a “dedicated and highly regarded” Thames Valley police sergeant with “exemplary service”.
In 2015, the claimant began to suffer from depression and anxiety. She received support from the occupational health nurse for 18 months. In May 2018, the claimant began to experience symptoms of PTSD related to trauma in her past. She made a report to another police force as a victim of serious historical offences, and that force began an investigation.
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The occupational health nurse advised that external interests may help to manage the intensity of police work. In the summer of 2018, the claimant set up a small events business alongside her role as a Thames Valley police sergeant, providing decorated themed tents for hire.
In accordance with regulations, the claimant notified the respondent of her intention to start the business. Her application stated that she wanted to “be involved in something that provides happiness to people” and that it would “benefit [her] mental wellbeing”. The respondent’s Business Interests Policy stated that such requests would be approved “unless there is good reason not to.”
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Thames Valley Police Sergeant’s Authorisation to Operate Business was Withdrawn
The respondent confirmed that the claimant’s business application had been approved in October 2018. She was told that decisions were reviewed regularly based on good performance and sickness records. The claimant began work on the business, which benefitted her mental health. Seeing families in happier times helped to balance her darker work as a Thames Valley police sergeant.
In February 2019, the claimant was informed that her historic offence investigation had been closed. The claimant made a complaint against the police force handling the investigation, claiming it had been mismanaged. Then, in April 2019, a vulnerable young person with whom the claimant had been working died. The claimant was extremely upset and was signed off work with stress.
As the claimant was on sick leave for more than 28 days, a review of her authorisation to operate her events business was triggered. It was noted that the claimant’s business was active during her absence from work, which was understandable given that her stress was linked specifically to her police work, and the business helped with this.
Nevertheless, due to the claimant’s prolonged sick leave and continued operation of the business, the authorisation was withdrawn. The letter stated that the claimant’s health and wellbeing were the “number one priority” and that the continued operation of the business whilst off sick “could be impacting on [her] return”. There was no reference to the claimant’s history of PTSD, depression, and anxiety.
Thames Valley Police Sergeant Diagnosed with Complex PTSD
The claimant appealed the decision to withdraw the authorisation on 17 June 2019. She explained about her mental health issues and how her business helped with these. She requested that the respondent “support rather than punish” her. Her appeal was rejected on the same day. The claimant had no chance to make verbal representations.
The claimant’s husband contacted the respondent on her behalf to request a reconsideration. He was concerned that the authorisation withdrawal would negatively impact the claimant’s mental health. The respondent said that there would be no reconsideration without medical evidence. Both occupational health and the claimant’s GP said they could not provide such evidence.
In August 2019, the investigation into the claimant’s historic offence was reopened. She had to provide video evidence, which was highly distressing. On 14 August, the claimant met with a psychologist who diagnosed her with Complex PTSD, including “high levels of anxiety, moderate depression, burnout and high levels of primary, secondary and complex trauma”.
Shortly afterwards, the respondent commenced an investigation into the claimant’s continuance to operate her business following the withdrawal of authorisation. She was served with a notice to this effect on 7 October. This caused a relapse in her mental health. The investigation continued over the following months until the claimant resigned in January 2020, having “lost faith” in the police force.
The former Thames Valley police sergeant brought a claim of constructive dismissal against the respondent. She also brought multiple claims of disability discrimination and failure to make reasonable adjustments.
Employment Tribunal’s Judgment in the Thames Valley Police Sergeant’s Case
This case was heard at the Reading Employment Tribunal by Employment Judge Hawksworth. The hearing lasted for four days, and multiple witnesses gave evidence. It was found that the claimant’s Complex PTSD constituted a disability under the Equality Act 2010.
Withdrawal of authorisation for the claimant to operate her business was held to be discrimination arising from disability. Under section 15 of the Equality Act, this is defined as unfavourable treatment because of something arising out of a disability. In this case, withdrawal of authorisation constituted unfavourable treatment, and this was because of the claimant’s long-term sick leave, which arose from her disability.
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The tribunal found that the respondent’s Business Interests Policy constituted a “provision, criterion or practice” under section 19 of the Equality Act. Its application to the claimant put her at a substantial disadvantage compared with employees without her disability as she was more likely to take sick leave and thus have her authorisation reviewed. This, therefore, constituted indirect disability discrimination.
No steps were taken to reduce the substantial disadvantage referenced above. The tribunal suggested that the respondent could have authorised the claimant to be involved in the creative, non-public-facing side of the business but chose not to do so. This constituted a failure to make reasonable adjustments under section 20(3) of the Equality Act and unlawful discrimination under section 21.
The claim of constructive dismissal was also upheld. The respondent’s conduct in withdrawing the authorisation for the claimant to operate her business and failing to make reasonable adjustments to avoid a substantial disadvantage by the Business Interests Policy damaged the relationship of trust and confidence. This was a repudiatory breach of contract, and the claimant’s resignation was constructive dismissal, which was discriminatory in itself.
Katrina Hibbert was awarded compensation of £1,168,561.00.
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