A police marksman removed from his firearms position after failing a hearing test yesterday (Thursday) won his discrimination claim.
Bruce Shields had suffered high frequency hearing loss throughout his “distinguished” 12 years of firearms service.
A lawyer representing Surrey and Sussex police forces told an employment tribunal the police constable could have mis-heard the instructions “shoot” or “don’t shoot.”
However an employment judge found the 39-year-old was discriminated against when he was demoted from his specialised position.
The married father-of-two joined Surrey Police in 1998, and was diagnosed with an inner ear infection in his right ear a year later, which left him partially deaf.
Despite this, he completed his firearms officer training in 2001 and was able to work as an authorised firearms officer (AFO), working in many challenging situations including an armed robbery in a Barclay’s bank in Ashford, Surrey, in June 2010, for which he received a Chief Constable’s Commendation.
He failed hearing tests annually, but it was only when a new minimum permitted hearing level was introduced in 2013 under a new doctor that Mr Shields was immediately removed from firearms duties.
Mr Shields, from Petersfield, Hants., claimed the hearing test was flawed and unrealistic and sued Surrey and Sussex Police - which have a joint firearms command - claiming he was the victim of disability discrimination.
He told the employment tribunal in Reading in August that in 12 years he not had a situation that resulted in a mis-hearing.
The officer said, “I believe I can continue to do the job well and make a difference in armed policing and if there was an alternative hearing test I could demonstrate this. There are many other AFO who are hard of hearing and I hope my case can give them help.”
In 2013 the College of Policing and APCO issued new guidance regarding the medical condition affecting armed police officers and when Mr Shields took his annual test by the new force medical officer he failed it like the previous 12 years.
However instead of being allowed to continue his work as in previous years, on May 14 Mr Shields was told he could not continue as an AFO with immediate effect and was put on restricted duties.
The tribunal judgment said, “The claimant had many years’ distinguished service as a police constable who was authorised to carry firearms (known as AFO). Throughout his AFO service he had suffered from high frequency hearing loss. There was no evidence or indication that his hearing loss had ever caused any operational difficulty or issue.”
The tribunal heard how the Sussex and Surrey Tactical Firearms Unit failed to give Mr Shields a specialised practical hearing test which could have shown he was able to do the job. A practical test carried out by the London Fire Service was identified by the command but Mr Shields was not even offered the opportunity to take it.
Police denied discrimination or failing to make reasonable adjustments for Mr Shields, but in a unanimous judgment, the tribunal ruled, “The respondents discriminated against (Mr Shields) contrary to section 20 of the Equality Act 2010 ... by failing to make reasonable adjustments, in failing to arrange for him to undertake the London Fire Service functional test of his hearing ability.
“Save as above, all the claimants claims of disability discrimination, howsoever formulated, fail and are dismissed.”
Mr Shields, who is still working for Surrey Police in a temporary training capacity, thanked the court for the “balanced and considered” verdict.
He said, “I am very pleased with the result and hope, as a result of this action, future officers may benefit from the judgment.
“Although I cannot comment on the detail at present, I hope that a satisfactory remedy is implemented and that I can put this behind me and carry on with my professional career.”
His lawyer Simon Cuthbert, an employment law specialist at Slater and Gordon, said, “It’s extremely disappointing Mr Shields was discriminated against in this way.
“He was an exemplary firearms officer and should have been given the opportunity to take the test that could have proved he was capable of doing his job.
“Sussex and Surrey Constabularies need to take this tribunal ruling very seriously and ensure this does not happen again.”
A spokesman for Surrey Police said, “Surrey Police is aware of the results of the employment tribunal and will fully consider the findings before making any decisions.
“The force will consult with the College Of Policing and consider any legal advice as part of this ongoing process.” Don’t miss out on all the latest breaking news where you live.
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