Fair Employment Tribunal Northern Ireland Decisions

 
FAIR EMPLOYMENT TRIBUNAL

CASE REF: 192/04FET

1396/04

CLAIMANT: Bernard McCorry

RESPONDENT: Department for Regional Development

DECISION

The unanimous decision of the Tribunal is that the Claimant was not discriminated against on the grounds of his religious or political belief.

The Tribunal also found that the Claimant had not succeeded in establishing that he was discriminated against on the grounds of his disability or that there had been a failure to make reasonable adjustments and accordingly both the claims for religious discrimination and disability discrimination are hereby dismissed.

Constitution of tribunal:

Chairman: Ms W A Crooke

Members: Mr R Margrain

Mrs G Savage

Appearances:

The claimant appeared in person and represented himself with assistance from his wife, Mrs McCorry.

The respondent was represented by Mr Peter Coll, Barrister-at-Law, instructed by the Office of the Departmental Solicitor.

SOURCES OF EVIDENCE

Mr Bernard McCorry, the claimant gave evidence on his own behalf and called Mr Daniel Mullan, Mr Robert McFarlane and Mr Robert James Wright to give evidence on his behalf. Mr A R Fletcher, Mr F Keatley, Mr P McClelland, Mr David Wright, Mr P Mulherne, Miss Angela Starky and Mr H Patterson gave evidence on behalf of the Respondent. The Witness Statement of Mr H Mulholland was read out during the Tribunal hearing as Mr Mulholland was unable through illness to attend the Tribunal. There was a bundle before the Tribunal. The claimant initially indicated some disagreement and the Tribunal accepted the bundle on the basis that any documents which were not agreed would be formally proved in evidence.

THE RELEVANT LAW

The relevant law is found in the Fair Employment and Treatment Order (NI) 1998 and in the Disability Discrimination Act 1995.

THE ISSUES IN DISPUTE BETWEEN THE PARTIES

1. Whether the claimant was less favourably treated on the grounds of his religious belief than the employees who were Protestants who were within the group of 18 workers considered for transfer when he was transferred from Belfast Sewerage to Customer Services.
2. Whether the claimant was less favourably treated by the Respondent for a reason which relates to the claimant's disability than the Respondent treats or would treat a person to whom that reason did not or would not apply in the way the claimant was treated by Mr Wright in a telephone conversation with regard to the claimant's request for a face to face meeting with regard to his appeal.
3. Whether the Respondent made reasonable adjustments to prevent the claimant being at a substantial disadvantage in comparison with persons who were not disabled in respect of:-

(a) His request for a face to face appeal meeting with Mr Wright and

(b) In his new role which required the completion of additional paperwork.

4. Whether the Respondent can show that any failure to make reasonable adjustments can be justified.
5. Whether the choice of persons to transfer was made by random selection.
6. Whether the respondent's officers deliberately selected Roman Catholics for transfer.
7. Whether the person described as non-determined was perceived as a Catholic for the purposes of his employment.
8. Whether Mr Wright treated the claimant in a degrading manor in relation to the request for an appeal.
9. Whether an increased volume of paperwork was required in the claimant's new

post.

FACTS FOUND

10. By a report of an educational psychologist which was before the Tribunal dated 7 June 2006 the claimant was diagnosed as having severe dyslexia. The Respondent accepted that the claimant had this disability and that he was a disabled person for the purposes of the Disability Discrimination Act 1995.
11. In or around the end of 2003 – 5 April 2004 the claimant worked for the Respondent as a craftsman bricklayer operating out of Bretland House, Duncrue Street, Belfast.
12. In or around 15 March 2004 the claimant received a letter indicating that he had been selected to transfer (with others) to the Customer Services Directorate with effect from 5 April 2004.
13. There were 23 industrial workers in Bretland House 10 of whom were members of the Protestant community and 13 of whom were members of the Catholic community. It appeared to the Tribunal that there was an informal working arrangement whereby Protestant workers worked in Protestant areas and Catholic workers worked in Catholic areas. There was some cross-over during the overtime.
14. The prospective transfer of 5 workers was part of the implementation of the privatisation of water within Northern Ireland. The plans for this had been drawn up some time before the actual selection.
15. Attempts had been made to agree the selection procedure with the relevant unions involved but no agreement was reached. The unions did not accept the suggested procedure and did not suggest any alternative procedure.
16. There were disputes in the evidence over the actual method of selection and how the mechanics thereof were carried out. Some evidence suggested that it was done by computer, some other evidence suggested that it was done by drawing names from a hat and the evidence of Mr Keatley and Mr Fletcher was that the strips of paper with the names on were folded up to obscure the names to be selected and put in a paper cup. The Tribunal accepts the evidence of Mr Fletcher and Mr Keatley that the method of selection was to draw names on rolled up pieces of paper from a paper cup. The Tribunal also accepts that Mr Fletcher was forced to do this 1 hour before closing time on 12 December 2003. The Tribunal accepts the evidence of Mr Fletcher and Mr Keatley because they each corroborated the other to a large extent and the evidence given by and on behalf of Mr McCorry consisted of pure speculation rather than hard evidence on this point. The Tribunal also accepts that Mr Fletcher and Mr Keatley did not have any knowledge of the religious affiliation of the persons who were in the selection pool. Mr McCorry did not bring any objective evidence to contest this point. The Tribunal has also recognised the fact that Mr Fletcher and Mr Keatley were not direct line managers for the persons in the selection pool.
17. Four of the persons selected were of the Roman Catholic community and 1 of the persons selected was non-determined, but Mr McCorry acknowledged that he did not consider him to be entirely of the "green" or Roman Catholic side of the workforce.
18. The Tribunal accepts that the selection process was that of random selection from a pool of 18 names. The Tribunal does not consider that Mr Keatley's not knowing precisely how many names were in the cup in any way detracted from the random nature of the selection.

ANALYSIS OF EVIDENCE IN THE FAIR EMPLOYMENT CASE

19. Generally where there was a dispute in the evidence the Tribunal preferred the evidence given on behalf of the Respondent as it was to a large extent clear and consistent, corroborating the account between witnesses. In contrast the evidence given by Mr McCorry and on his behalf was at times confused and appeared to be a matter largely of speculation and inference. Certainly no objective evidence was produced to counter the evidence given on behalf of the Respondent.

CONCLUSIONS ON THE FAIR EMPLOYMENT CASE

20. The Tribunal concludes that the claimant was not discriminated against on account of his religious or political beliefs. In so far as it is necessary for us to consider whether or not the burden of proof shifts in relation to this case, we find that it does not. Although there was a certain suggestion of sectarianism in how the particular yard was run, there was no evidence adduced on behalf of the claimant to suggest that the selection itself was on sectarian grounds. However, we have noted the manner in which the selection was required to be carried out by Mr Fletcher. Mr Fletcher himself very honestly indicated to the Tribunal that if he had had more time he would have carried out a more robust selection process. It is the opinion of the Tribunal that it is unsatisfactory to require a selection with such speed, given that the commencement date for the relocation of the operatives was in or around 1 April 2004. It is the opinion of the Tribunal that the manner in which Mr Fletcher was forced to carry out the selection by his line management, contributed to the concerns felt by the workforce.

FACTS FOUND IN RELATION TO THE DISABILITY CASE

21. Once the decision to transfer was made the persons that were affected had a "right to representation". This means that they had to give reasons why they were not able to transfer to the new location. This process could only be carried out in writing.
22. The claimant requested a face to face meeting with his Line Manager, Mr Peter McClelland and explained that he thought he had dyslexia. Mr McClelland wrote at the dictation of the claimant a letter of appeal. However, he did not write down (because the claimant would not permit him to do so) the personal and family details upon which Mr McCorry would base his appeal, although Mr McCorry did explain them to him.
23. The right to representation was rejected and Mr McCorry subsequently appealed to Mr David Wright. Mr Wright refused a face to face meeting and the claimant argued that that discriminated against him on the grounds of his disability. Alternatively, it was a failure to make reasonable adjustments to avoid a substantial disadvantage.
24. Mr Wright was not informed by Mr McClelland that the claimant had told him that he believed that he had dyslexia, nor was he informed about the family circumstances of the claimant. The Tribunal accepts that Mr McClelland was faced with something of a hard dilemma. On the one hand he was given information orally which he was told had to be treated in confidence. On the other hand that information could very well have been very relevant to the question of whether or not the claimant had to transfer. The claimant in his cross-examination of Mr McClelland and indeed of Mr Wright suggested that Mr Wright should have been told by Mr McClelland about his potential dyslexia at the very least. If this is really the case, we do not understand why the claimant did not himself tell Mr Wright in his telephone conversation with him. Instead, he chose to tell him simply that had difficulty with reading and writing. Mr Wright was left totally in the dark about the real extent of the difficulties experienced by the claimant. Of course the claimant tried to argue that by telling Mr Wright that he had difficulties with reading and writing that this was enough to trigger a duty to make reasonable adjustments. Without giving detail, the Tribunal does not see how Mr Wright could have been in any way on notice of the nature and extent of the adjustments needed by the claimant. However, Mr Wright did inform the claimant that if he required a face to face meeting there was provision for this in the grievance procedure. Although Mr McCorry tried to amalgamate the two procedures into one in his evidence to the Tribunal, he did not deny that he had been told about the grievance procedure.

ANALYSIS OF EVIDENCE

25. Generally, we preferred the evidence given on behalf of the Respondent, as we found the claimant's evidence both given by him and on his behalf to be confused. In so finding, we do not impute any bad faith on the part of the claimant, as we have taken note of the provisions of the report of the educational psychologist which provided that upon examination amongst other things the claimant displayed confusion about dates and times.
26. In dealing with the disability claim two factual issues arose:-

(a) Whether the refusal of a face to face meeting by Mr Wright was discriminatory and

(b) What was required when the claimant moved to his new job

27. The claim in respect of the meeting with Mr Wright is a direct discrimination point involving the claimant saying "if it were not for my disability I would not have been treated in that fashion". We accept Mr Wright's evidence that nobody would have been given a face to face meeting in the context of the right to representation scheme. It was streamlined to move matters along expeditiously, but importantly it did not replace the grievance procedure. The claimant still had the right to use this so we do not find that anybody else who did not have the disability would have been treated differently.
28. The construction of a hypothetical comparator was of some assistance to the Tribunal and that would have been a person in similar circumstances to the claimant without a disability. Mr Coll used the helpful analogy of a person who was unable to write because of his arm being in a plaster cast. Again there was no evidence to show that such a person would have been treated differently. The claimant did not show any discrimination for a reason connected to his disability. A major part of the claimant's complaint under this heading was that he alleged Mr Wright said words to the effect of "surely somebody can write a letter for you". Even if it is accepted that that was said, and Mr Wright denied that it was said because in the context of the right to representation no one would have received a face to face meeting, it is still not automatically connected to the claimant's disability. We accept the submission that it could go to anyone who was not able to write for any reason.

A further subsidiary issue was whether or not the refusal to have a face to face meeting was the refusal of a reasonable adjustment. We do not so find. Mr McClelland had already allowed a face to face meeting purely because that was a matter of his management style. If anybody needed a meeting with him he would grant it. He denied that he had been told of the dyslexia before the meeting and on the balance of probabilities the Tribunal accepts that this is more likely than not to be true. There is a world of difference between having difficulties with reading and writing across a spectrum to dyslexia, and dyslexia of a severity of that experienced by the claimant. The Tribunal has also noted that in his closing points Mr McCorry indicated that he did not want his work colleagues to know about his disability and indeed had largely hidden it for most of the time of his service with the Respondent. Therefore for the great majority of his service with the Respondent, the Respondent had been left in total ignorance of the real situation. Effectively, Mr McClelland took dictation from the claimant and this in itself is a reasonable adjustment to avoid the claimant being placed at a substantial disadvantage by the work arrangement of the right to representation. Whilst the Tribunal might have been concerned in an Industrial Tribunal case with the issue of whether or not Mr McClelland behaved reasonably in and around his failure to take account of the claimant's domestic situation, in a discrimination claim the issues are different, and we find that if the duty to make reasonable adjustments was triggered at all it was fulfilled by the Respondent. Mr McClelland took dictation. Mr Wright advised the claimant that the grievance procedure was open to him. Some time was taken by Mr Wright in explaining to the claimant what procedure should be followed, and also that the right to representation did not in any way replace the grievance procedure. The grievance procedure would have provided an oral hearing with the right to accompaniment and would have been in itself a reasonable adjustment, if the claimant had taken it up. It is not necessary for us to consider whether or not the failure to conduct a face to face meeting in the right to representation is an issue to be justified, but if it had been necessary for us to so find we would have found that it was a one off process to deal with issues in an expeditious manner and that the existence of a separate grievance procedure is a reasonable adjustment, and that reasonable steps had been taken in all the circumstances.

29. The second limb of the claim was whether or not the claimant had additional paperwork to complete in his new job. The claimant commenced employment in the transferred post on 5 April 2004 and lodged his claim with the Tribunal 4 days thereafter in or around 8 April 2004. Before transfer, the claimant did have some paperwork which he managed to avoid as frequently as possible. Again, from the evidence there was no reason to suggest that the Respondent had any knowledge to suggest that this was on the grounds of disability. Instead it was pitched at the level of "I don't like paperwork" rather than because of a disability "I am not able to carry out paperwork".
30. The claimant is required to fill in a pro forma form reporting on his visit to various properties. This consists of boxes to be ticked and brief comments to be made. There were examples before the Tribunal and the Tribunal accepts Mr Coll's submission that the relevant message was conveyed in the forms where required by the claimant. However, a practice had developed whereby the claimant was able to go to Mr Mulherne his new Line Manager to report orally to him in some areas and there was indeed evidence before the Tribunal that Mr Mulherne had augmented some of the comments of the claimant. The claimant argued that this made him feel humiliated. However, this in itself is a reasonable adjustment to help the claimant carryout his work, and if the claimant requires reasonable adjustments to be made, it is self defeating for him to turn round and say that these reasonable adjustments are in themselves unsatisfactory. The Educational Psychologist's report to which reference has already been made, made a number of recommendations and one of them was that the Respondent provide help to the claimant. This is what Mr Mulherne was doing. Furthermore as Mr Mulherne was and is an adult literacy tutor, we do not consider that he would have been insensitive to the claimant's feelings and acted in a way that would humiliate the claimant.
31. We have also noted that the report of the Educational Psychologist does not say that Mr McCorry is totally unable to write but says that his performance will suffer if put under time pressure. There was no evidence before the Tribunal to suggest that Mr McCorry necessarily had to complete his reports under time pressure. Furthermore there was nothing to suggest that Mr Mulherne was dissatisfied with the claimant's written work and that was in the context of him being unaware of an actual disability.
32. In summary and in relation to the 9 points of the Case Management Discussion on 5 October 2006, in so far as we have not already dealt with the issues set out therein the Tribunal finds as follows:-

1. Was the claimant less favourably treated on the grounds of his religious belief?

No we do not find the claimant was less favourably treated on the grounds of his religious belief.

2. Was the claimant less favourably treated by the Respondent for a reason relating to his disability?

No we do not find the claimant was less favourably treated for a reason relating to his disability.

3. Did the Respondent make reasonable adjustments to prevent the claimant being at a substantial disadvantage?

Yes we found that reasonable adjustments to assist the claimant were made both in the request for the face to face appeal meeting with Mr Wright, and by being directed to the grievance procedure.

4. Can the Respondent show that any failure to make reasonable adjustments can be justified?

We found that it was not necessary to make a decision on this issue but stated that if it had been necessary, we would have found that the failure to make reasonable adjustments was justified.

5. Whether the choice of persons to transfer was made by random selection?

We find that the choice of persons to transfer was made by random selection.

6. Whether the respondent's officers deliberately selected Roman Catholics for transfer?

We do not find any evidence to suggest that this was the case.

7. Whether the person described as non-determined was perceived as a Catholic for the purposes of his employment?

Mr McCorry admitted in the course of the hearing that he did not perceive Mr Hendrickson as a Roman Catholic.

8. Did Mr Wright treat the claimant in a degrading manor in relation to the request for an appeal?

No we do not find that Mr Wright did so treat the claimant. We find that Mr Wright gave the claimant an explanation of why a face to face meeting could not be allowed through the right to representation process but directed his attention to the grievance procedure which would provide for a face to face meeting.

9. Was there an increased volume of paperwork required in the claimant's new post?

While the increased requirement to file reports with comments thereon may have seemed substantial to a person with the difficulties of the claimant, we find that the claimant was given support by Mr Mulherne and indeed was able to ring the office when required to seek assistance. We also note that the claimant was only 3 days into his new role before he lodged papers with the Tribunal. However, there was no evidence before us to support any conclusion that the claimant would have been more comfortable with his role had he allowed more time to elapse. However as it is not necessary for us to make any finding on this issue we do not do so.

For all of the above reasons set out we find that the claimant's claim in respect of religious discrimination and his claim in respect of disability discrimination both fail and are hereby dismissed.

Chairman:

Date and place of hearing: 26 February 2007 – 2 March 2007

4 May 2007

7 - 8 June 2007

Date decision recorded in register and issued to parties: