Colin Banham has, once more, successfully represented a Metropolitan Police Officer at the Police Appeals Tribunal following an original outcome of dismissal with notice under the Police (Performance) Regulations 2012. Notwithstanding that the officer admitted that his attendance was unsatisfactory at a Stage 3 meeting, it was argued that there had been a material breach in procedure as the Panel had failed to consider a referral to the Selected Medical Practitioner for ill-health retirement to be explored.

It was submitted that there was a duty under the 2012 Attendance Regulations to consider ill-health retirement before dismissing an officer for incapacity. It is clear from the case of R v Sussex Police Authority, ex.p. Stewart [2000] EWCA Civ. 101 that an officer who may be ‘permanently disabled’ (Reg. H1(2)(a) of the Police Pensions Regulations 1987) and therefore potentially qualify for ill-health retirement could nevertheless continue working if reasonable adjustments were made.

It was further submitted, analogous to the case of First Great Yorkshire Ltd. t/a First Leeds v Haigh (2008) IRLR 182, that fairness required the Stage 3 meeting to take reasonable steps to ascertain whether the employee is entitled to the benefit of a more generous ill-health retirement scheme, before dismissing for long-term sickness.

The key question in the circumstances is whether reasonable steps were taken to consider ill-health retirement. There were a number of fundamental duties that the panel had not adequately considered. The case of First Great Yorkshire Ltd. t/a First Leeds v Haigh (2008) IRLR 182 warned that, if the duties are not adhered to, substantial injustice might occur.

The Police Appeals Tribunal held that the panel had not adequately considered the evidence whether ill-health retirement had been fully explored in the past and furthermore there was a paucity of medical evidence, which could have been remedied.

The original decision was set aside and the case was remitted to be decided upon by a fresh panel. The Officer’s pay was reinstated from the date of his dismissal. In the circumstances of the case, the Police Appeals Tribunal recommended that further medical evidence should be obtained and any future panel actively consider the question of ill-health retirement.