Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 105/03 FET

498/03

CLAIMANT: Henry F McCarthy

RESPONDENT: Belfast City Council

DECISION

The unanimous decision of the Tribunal is that the claimant has not proved that he was unlawfully discriminated against on the grounds of his disability or religious belief and he was not unfairly dismissed. His claim to the Tribunal is dismissed.

Appearances:

The claimant appeared in person and gave evidence.

The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by the respondent.

Sources of evidence

1. The claimant gave evidence and produced documents. The respondent produced two bundles of documents and called Doctor Philip McGarry, Consultant Psychiatrist, and Mr Brian Morrison, retired Head of Community and Leisure Services, and Ms Karen Neill, who was Human Resources Manager for Community and Leisure Services.
2. The claimant referred the Tribunal to events leading up to his dismissal in February 2003. He claimed that he was disabled and that he should have been retained in employment by the respondent. He claimed that he was unfairly dismissed when his contract of employment was terminated on 14 February 2003. He claimed that he had been subjected to unlawful discrimination on the grounds of his religious belief. The respondent denied all these claims. The Tribunal accepted that in February 2005, at a Case Management Conference, the respondent conceded that the claimant was a disabled person for the purposes of Section 1 of the Disability Discrimination Act 1995. The issue for the Tribunal was the way in which the respondent treated the claimant knowing that he was disabled and because of his religious belief. The disability complained of was a mental impairment, namely stress and depression, and it was agreed that the claimant was dismissed having been absent from work for various periods of time since the beginning of 2001.
3. The Tribunal considered the evidence carefully and found that:-

(a) The claimant had been a Community Development Worker and employed with the respondent since 1984. He had a period of work at Finaghy Community Centre and although the Tribunal did not go into details of the incidents complained of by the claimant, it accepted that there had been some traumatic incidents during his period at Finaghy Community Centre which led to him being off work and extremely upset by events that had happened there.

(b) In 1997 he went to work for a period in Horn Drive at a community centre and he had another traumatic incident there during which his car was shot at and he gave evidence on a number of occasions about these events in his life. He blamed these events for causing the stress and depression which he continued to suffer during his period of employment. He accepted that the Council had transferred him to work in the Cecil Ward Building in the centre of Belfast and he had been there for between four and five years before his ultimate termination of contract.

(c) The Tribunal accepted that in compliance with the respondent's absence procedure, the claimant had been referred frequently to the Occupational Health Physician, Doctor O'Reilly. Doctor O'Reilly had been asked by Brian Morrison, Head of Community and Leisure Services, for a prognosis on the claimant's ability to continue to work for the Council. The Tribunal accepted that early retirement for ill-health was not Doctor O'Reilly's initial view on the matter. His first consultations with the claimant were in the hope that the claimant would be fit to return to work. However, Doctor O'Reilly became concerned about the claimant's mental fitness to return to work and as a result asked the claimant to have himself referred to a Consultant Psychiatrist for further reports. The claimant did not do this and so Doctor O'Reilly asked the respondent to refer him to a Consultant Psychiatrist.

(d) In May 2001, Brian Morrison, Head of Community and Leisure Services, became concerned as to whether the claimant would be able to return to work on a phased basis or whether a Specialist referral would improve his condition long-term. On 10 May 2001, Doctor O'Reilly considered that it would be beneficial to see a Consultant Psychiatrist and the claimant was referred to Doctor Philip McGarry.

(e) The Tribunal accepted that the claimant was examined by Doctor McGarry on 17 October 2002. Doctor McGarry had already seen the claimant at the Royal Victoria Hospital Clinic in 1995 and 1996 and the claimant had presented at that time with depressive and anxiety symptoms from his period of employment at Finaghy Community Centre. The Tribunal accepted that he was treated at that time with an antidepressant and was referred to a Community Psychiatrist Nurse. He made good progress and by June 1996, Doctor McGarry discharged him, hence he was familiar with some of the background problems relating to the claimant. Doctor McGarry took a personal history from the claimant and made clinical observations about him during the interview. He came to various conclusions which were forwarded to the City Council and what was of importance to the Tribunal was that he found the claimant's condition to have deteriorated significantly. He considered that the claimant should be offered medical retirement on grounds of ill-health and stated, "I see no prospect of him being able to provide an efficient service over the next five years to the Council". Doctor McGarry made some typographical errors in his report but the Tribunal accepted that they did not affect his conclusions about an ill-health retirement.

(f) The claimant did not deny that Doctor O'Reilly had made him aware of the possibility of ill-health retirement. Although he had been at work for periods in 2001, he had been alerted that he had 106 days' absence in the previous year. The Tribunal accepted that a considerable part of his absence related to a road traffic accident which he had whilst carrying out a work function, but the Tribunal accepted that the Council was entitled to look at his absence record over a period of at least three years and the Tribunal accepted that it was a very poor absence record.

(g) The Tribunal accepted that there was a meeting with the claimant and Philip Faulkner, Karen Neill and Jill Minn, who was the Corporate Human Resources Officer, and the claimant. He had received a letter from Brian Morrison stating that the meeting was going to take place and offering him the opportunity to have a trade union representative present. The claimant did not bring a representative and the Tribunal accepted that when he was asked by Philip Faulkner if he wished to have one, he declined. The claimant did not believe that Karen Neill had taken notes of the meeting in question and neither had he.

(h) The Tribunal heard Ms Neill's evidence and accepted that she did take notes as part of a developmental exercise for herself, because she was developing herself to work within the Human Resources field and to be confident to deal with ill-health retirement interviews. The Tribunal has no reason to find that her notes were not an actual summary of what happened. The salient point is that the claimant accepted the respondent's offer of ill-health retirement. Although the claimant stated at this hearing that he did not accept ill-health retirement, we do not believe this. We accept from Ms Neill's evidence that if the claimant had objected to ill-health retirement at any time during that interview they would have stopped the procedure and obtained further medical evidence either being given by the claimant himself, or they would have looked for another medical report. The Tribunal noted that the claimant did not question Ms Neill at all about this part of her evidence and this confirmed the Tribunal's belief that he did not raise it at that meeting.

(i) The claimant was put on formal notice that his employment would terminate on 14 February 2003. He was informed of this in a letter dated 20 November 2002. The claimant was most concerned about this letter because he said, in his words, it was 'a forgery'. In fact, the reality of his complaint was that the letter was signed by F Maguire and not T G Salmon, who was the Director of Corporate Services. The claimant stated that this invalidated the letter. The Tribunal accepted evidence that there was a delegation power given to Directors and that it was within the power of Mr Salmon to delegate his signatory powers for this letter. The Tribunal does not draw any inference of either disability discrimination or religious discrimination from the signing of the letter by another Director of the Council. The Tribunal noted that the claimant took no steps to appeal or to alert the Council to his dissatisfaction with an ill-health retirement. The first knowledge that the Council had of any dissatisfaction was when he lodged a claim to the Fair Employment Tribunal on 14 February 2003.

Religious discrimination claim

4. The claimant has not proved that he has been unlawfully discriminated against on the grounds of his religious belief. He has said that he was a Catholic child who was fostered by a Protestant widow and sent to a Protestant primary school. At a later stage he became a Roman Catholic and he was concerned that the Council had given him an incorrect categorisation for his religion. He could not compare himself with any other person in the same relevant circumstances who had been treated differently in terms of an ill-health retirement, either Protestant or Catholic. Quite simply, his claim of religious discrimination is not substantiated in any way whatsoever and it is dismissed.

Disability discrimination

5. As stated earlier, the respondent conceded for the first time at a Case Management Conference on 14 February 2005 that the claimant was a disabled person within the specific meaning of Section 1 of the Disability Discrimination Act 1995. It was apparent to the Tribunal that the claimant had been suffering from stress and depression for a considerably long time during his employment with the Council. The question therefore was what reasonable adjustments could have been made during the last two years of the claimant's employment to accommodate him. The claimant kept trying to make the case that he had a claim for personal injury due to traumatic events which happened to him whilst working for the Council during the 1980s and 1990s at Finaghy.
6. The Chairman of the Tribunal pointed out to the claimant that he was trying to make out a personal injury claim against the Council and the Tribunal was not the appropriate forum to present such a claim. The claimant referred the Tribunal to a case called Dunnachie v Kingston upon Hull City Council which was decided by the House of Lords in 2004. It found that there was not provision in the unfair dismissal legislation to compensate for financial loss as well as injury to feelings. The respondent had a sickness policy which the Tribunal accepted was triggered when an employee had a number of days off work. It did not matter whether the claimant had suffered a road accident or whether he had been off with stress or any other condition. The trigger for this absence was the number of days on which the employee had been off work. There is nothing to show that the respondent should have made any particular difference for the claimant in this case. Once the trigger point was reached the claimant was sent to the Occupational Health Physician and the Tribunal held this was a perfectly reasonable action by the respondent. The claimant was seen by the Occupational Health Physician over a considerable period of time. He became more concerned about the claimant's mental health state and his ability to ever return to work. Again, this was a situation which was handled sensitively by the respondent. At that time there was no reasonable adjustment to be made, quite simply the claimant was not fit to go to work. This situation continued throughout 2002 and at no time did the claimant make the case that he was fit to go to work. Hence, there was no reasonable adjustment that could be made other than to look at the potential of ill-health retirement. The Tribunal is quite satisfied that the claimant accepted ill-health retirement and he had time to consider this option both before and after he received a letter from the Council in November 2002. At no time did he appeal it or produce any medical evidence whatsoever to substantiate a claim that he was fit to go to work at any time. The Tribunal takes note that the claimant is still not able to go to work. He is an intelligent man who faced difficulties in the Tribunal when there was cross-examination and we could accept that he was still exhibiting signs of stress during the hearing.
7. The Tribunal considered the various judgements which were put forward by the claimant for consideration. Many of them were not relevant cases which would be of assistance to this Tribunal. The case centred round a number of factual points which we have determined, as stated above. The claimant's employment came to an end due to an ill-health retirement policy which enabled the claimant to leave and be paid an ill-health retirement pension. Although it was technically a termination of his employment, it was done with his agreement and as such was a fair procedure to be operated by the respondent. It does not give rise to a claim of unfair dismissal. The claimant's claim is dismissed.

Vice President:

Date and place of hearing: 13 – 15 June 2005, Belfast

Date decision recorded in register and issued to parties: