ZH v Commissioner of Police for the Metropolis [2012] EqLR 425

C is severely autistic and epileptic. He cannot communicate by speech and suffers from learning disabilities. He
claimed damages for assault, battery, false imprisonment and unlawful disability discrimination. D denied the
claims. This summary deals with the disability discrimination provisions only.

Facts

On 23 September 2008 C visited Acton swimming baths with four other pupils from his school. They had not
intended to go swimming but C became fixated with the water. C had an aversion to being touched and so they
did not attempt to touch him. The lifeguards became concerned that C had been standing fully clothed beside
the pool for 20 minutes. They were concerned in case a member of the public fell in the pool fully clothed. C's
carer told the pool staff that they must not touch him as he was autistic and he would jump in. They tried to
entice C away from the pool with a packet of crisps and offers of food. The manager of the pool arrived and told
C's carer that he needed to remove C from the poolside or he would call the police. C would not move away
from the poolside and the manager, having lost patience, called the police. On the telephone the manager
described C as being aggressive, even though he was not. His evidence was that he did this because he had
panicked and did not know what to do.

The Judge held that it would have been clear to those observing C on that day that he was disabled by his
behaviour. He was variously described as making high pitched squeals, jumping up and down and rocking back
and forth.

The police arrived in full uniform. They spoke to the carer and expressed the view that they need to move C as
he was in danger of falling in. One officer touched C gently on the back to gauge what his reaction might be. C
moved closer to the water and the officers then tried to grab his arms to stop him going in. C jumped into the
water. The officers accepted in evidence that C may have been reacting to their presence. The lifeguards formed
a cordon around him to try and persuade him to move to the shallow end and out of the pool. C was enjoying
being in the water and splashing around. The lifeguards then decided to grab him and remove him from the
pool. It took about 5 minutes to move him to the shallow end. The police during this time took no advice from
the carers about how to deal with C and did not attempt to formulate a plan with them for the safe removal of C
from the pool. No advice was proffered by the carers.

Three more officers arrived. There was no communication with the carers. He was lifted out of the pool,
struggling, and handed to police officers. Five officers restrained C. The carers asked the police not to restrain
him in that way as he was autistic and epileptic. They tried to calm him down with a lollipop and a banana but
the police told them to move away. One officer conceded that there may have been other ways to get him out of
the pool voluntarily but that they did not think of them at the time or ask about them and that they might have
done so if they had consulted the carers. The officers ceased their use of force only when two pairs of handcuffs
and leg restraints were used. One of the swimming instructors said that C had become very distressed by the
restraint and that it would have been better to have let him go even if it meant injuring himself. C was taken into
the carpark and placed in a cage at the rear of a police van. His carers were permitted to see him through the
cage but not to enter it.

The agreed medical evidence was that C had suffered from an acute level of psychological trauma as a result of
the experience and that his epileptic seizures were exacerbated.

Held

D accepted that the practice of using physical restraint on C put him at a substantial disadvantage. The main
question in this case was whether the adjustments contended for by C were reasonable. The Judge held that it
would have been a reasonable adjustment to consult with C's carers. The Judge held that had C's carers been
consulted the police would have realized that physical restraint was inappropriate and counter productive.
Although C's carers could have been more pro-active the duty was on the police to carry out the reasonable
adjustment. The Judge also held that C should have been given the opportunity to move away from the poolside
under his own volition, that force should only have been used as a last resort, and that a calm, controlled and
patient approach should have been used. The Judge stated that “it was not possible to say what would have
happened had these reasonable adjustments been made however I am satisfied that each of the adjustments
would have led to a better outcome than the course of action which the police in fact took.”

Comment

This is an interesting case concerned with applying the law of disability discrimination in the context of services.
The Judge, and it appears the parties, mistakenly thought that there was a duty to ”consider” making
adjustments (see Tarbuck v Sainsburys Supermarkets [2006] IRLR 664). There is of course no duty to make
adjustments which will not do something to alleviate the disadvantage (see 2011/Q3/Newsletter) and such an
adjustment must be identified. However the Judge also held that other adjustments, which were legitimately
required, had not been made, such as waiting for C to leave under his own steam. Another adjustment which
was suggested was “a calm controlled and patient approach”. This is a creative and sensible adjustment to
suggest. Too often lawyers (and judges!) underestimate the importance of modifying mannerisms and other
behavioural traits in order to accommodate the needs of disabled persons with some forms of mental
impairments.