Coming And Going

Over the weekend I read about the case of the police officer was found to have been discriminated against when she resigned and was refused permission to withdraw her resignation at a later date. The general rule is that once an employee has resigned and that’s been accepted, there’s no duty to allow him to withdraw his resignation.

Sarah Jane Hinsley was appointed to the office of probationary police constable by West Mercia Police in February 2006. By December she had decided to hand in her notice. Her employer tried unsuccessfully, to persuade her to withdraw her resignation. However, as she had made up her mind to go her resignation took effect on 17th January 2007.

On 26th January Mrs Hinsley visited her GP who diagnosed her as suffering from depression. She contacted West Mercia Police on 31st January 2007, asking to withdraw her resignation and be reappointed to her previous position. She said that she had resigned in a distressed state of mind brought about by her depression. Her request was refused on the basis that there was no provision under the Police Regulations 2003 for reappointment and therefore there was no power to grant it.

Mrs Hinsley complained that she had been discriminated against under the Disability Discrimination Act. The case recently came before the Employment Appeal Tribunal (EAT),which noted that there is no express prohibition on reappointment under the Police Regulations. There are substantive criteria that an applicant for the role of probationary constable would be required to fulfil. Mrs Hinsley met these criteria when she was first appointed to this position.

There was no reason to interpret the Police Regulations in a way which prevented reappointment in the way she wanted. The Court considered the nature of the duty to make reasonable adjustments. It reiterated the positive nature of the duty and drew a comparison with the facts in Archibald v Fife Council, in which the House of Lords found that it would have been a reasonable adjustment to allow the disabled claimant to be transferred to a new position in the local authority without going through a statutory competitive interview process.

The EAT upheld Mrs Hinsley’s appeal, substituted its decision for the tribunal’s and remitted the claim back to the tribunal to decide the issue of quantum. The facts in this case apply to the duty to make reasonable adjustments where an employee is disabled, but it is likely to create problems for employers.

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