Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

CASE REFS: 76/15 FET

2517/15

 

 

CLAIMANT: Andrew Bell

 

RESPONDENTS: 1. Primark Stores Ltd

2. Brian McKeown

3. Rhonda Armstrong

4. Damien McCloskey

5. Brendan Wallace

 

 

DECISION

 

The unanimous decision of the Tribunal is that:-

 

(i) the claimant was not unfairly dismissed by the first respondent;

 

(ii) the claimant was not discriminated against on the grounds of his sex, pursuant to the Sex Discrimination (Northern Ireland) Order 1976, as amended, by the respondents or either of them;

 

(iii) the claimant was not discriminated against on the ground of religious belief, pursuant to the Fair Employment and Treatment (Northern Ireland) Order 1998, by the respondents or either of them;

 

(iv) the claimant was not directly discriminated by the respondents or either of them, pursuant to the Disability Discrimination Act 1995, as amended;

 

(v) the claimant was not discriminated against for a reason which related to his said disability, pursuant to the Disability Discrimination Act 1995, as amended, by the respondents or either of them; and

 

(vi) the first respondent did not fail in its duty to make reasonable adjustments, pursuant to the Disability Discrimination Act 1995, as amended.

 

Constitution of Tribunal:

Employment Judge Employment Judge Drennan QC

Members: Mrs F Cummins

Mr J Boyd

 

 

Appearances:

The claimant appeared in person and was not represented.

The respondents were represented by Mr J Kennedy, Barrister-at-Law, instructed by Ms L Armstrong, Solicitor, of Pinsent Mason LLP, Solicitors.

 

Reasons

 

1.1 The claimant presented a claim to the Tribunal on 22 October 2015, in which he made a claim for unfair dismissal and/or sex discrimination and/or religious belief/ political opinion discrimination and/or disability discrimination. The respondents presented a response to the Tribunal on 9 December 2015, in which they denied liability for each of the said claims.

 

1.2 In accordance with the Tribunal's own case-management procedures, pursuant to the Fair Employment Tribunal Rules of Procedure, an Employment Judge conducted a series of Case Management Discussions to identify the issues which required to be determined by the Tribunal on foot of these proceedings. At a Case Management Discussion on 20 January 2016, as set out in the Record of Proceedings dated 5 February 2016, the Employment Judge identified the following series of 'Acts', which were the subject-matter of the claimant's claim:-

 

"12. In the present context it is clear that the reasonable adjustment would have consisted of the transferring of [JS] to a location other than the Bank Buildings store.

 

14. The Acts consist of the following:-

 

(1) The claimant was dismissed soon after the 2011 incident. However that dismissal ('the first dismissal') was subsequently undone and the claimant was reinstated by Primark. In these proceedings, the claimant complains in respect of the process which culminated in the first dismissal.

 

(2) The claimant made various complaints to Primark in the wake of the 2011 assault. In these proceedings, he complains about the way in which those complaints were handled.

 

(3) The claimant says that [JS] should have been transferred; and one of the Acts is the allegedly unsatisfactory nature of Primark's reaction to the [JS] incident.

 

(4) The claimant complains in respect of the dismissal which occurred in July 2015 ('the second dismissal')."

 

19. The causes of action in respect of Act 4 (the second dismissal) are as follows:-

 

(1) the claimant makes a complaint of unfair dismissal;

 

(2) he says that the dismissal was a sexually discriminatory dismissal;

 

(3) he asserts that the dismissal constituted discrimination under the DDA, in that it was directly discriminatory and/or because it constituted unjustified disability-related discrimination; and

 

(4) he says that the second dismissal was also discriminatory contrary to the DDA because of the failure on the part of Primark to make the relevant adjustment (the reasonable adjustment mentioned at Paragraph 12 above)."

 

In the said Record of Proceedings, the Employment Judge further noted:-

 

"20 According to Primark some of the Acts specified cannot now be the subject of a successful claim by the claimant, either because of the doctrine of 'res judicata' and/or because the complaints in respect of those Acts constitute an 'abuse of process'.

 

21 As Primark has pointed out, the claimant took earlier proceedings, in 2013, against Primark. During the course of those proceedings, the claimant made various complaint of gender discrimination and religious discrimination. Those earlier complaints were the subject of a Fair Employment Tribunal decision in November 2013.

 

22 According to Primark, in light of that 2013 decision, and in light of the 2013 proceedings, some of the Acts cannot now be the subject of a successful Tribunal claim either because of the doctrine of 'res judicata' or because of the 'abuse of process' concept."

 

At a subsequent Case Management Discussion on 17 February 2016, as set out in the Record of Proceedings dated 23 February 2016, the Employment Judge decided that there should be a pre-hearing review to address the following issues (referring to the Acts as identified by him, as set out in Paragraph 14 of the Record of Proceedings dated 5 February 2016, as referred to above):-

 

"(1) Is the claimant precluded from pursuing any complaint in respect of any one or more of any Acts/omissions which were within the scope of Act (1), because of the doctrine of res judicata/because of cause of action estoppel?

 

(2) Is the claimant precluded from pursuing a complaint in respect of any one or more of any Acts/omissions which fall within the scope of Act (2), because of the doctrine of res judicata/because of cause of action estoppel?

 

(3) Is the claimant precluded from pursuing a complaint in respect of any one or more of the Acts/omissions which fall within the scope of Act (3), because of the doctrine of res judicata/because of cause of action estoppel?

 

(4) Is the Tribunal deprived of jurisdiction to entertain any one or more of the claims specified or referred in the last three preceding paragraphs (Paragraphs (1), (2) and (3) above), because of time-limit issues?"

 

The Employment Judge also noted:-

 

"(8) The respondent accepts that res judicata/cause of action estoppel does not apply in respect of any act/omission which falls within the scope of Act (2), if the relevant act/omission occurred after 30 April 2013 (which is the date of commencement of the earlier proceedings).

 

(9) The respondent contends that res judicata/cause of action estoppel does not apply in respect of any act/omission which falls within the scope of Act (3) if the relevant act/omission occurred after 30 April 2013 (which is the date of commencement of the earlier proceedings).

 

(10) The respondents accept that no time-limit issues arise in respect of Act (4)."

 

1.3 At a further Case Management Discussion on 24 March 2016, as set out in the Record of Proceedings dated 11 April 2016, the Employment Judge stated as follows:-

 

"(2) During the course of this (March) CMD, the claimant told me that he is now seeking remedies only in respect of the dismissal which occurred in July 2015 ('the second dismissal'). He told me that he is now not seeking remedies in respect of Acts (1), (2) or (3). (In the present context, I am referring to the lists of Acts which was set out at paragraph 14 of the Record of Proceedings of the January CMD).

 

(3) Because the claimant has made it clear that he does not wish to pursue claims in respect of Acts (1), (2) or (3), a formal dismissal order, in respect of all of those three Acts will be issued in due course.

 

(4) As was made clear by me during the course of this CMD, the withdrawal of claims in respect of Acts (1), (2) and (3) does not prevent the claimant from mentioning the events which were the subject-matter of those Acts, for contextual or evidential purposes, in the course of pursuing his claim in respect of the remaining Act (Act (4), which relates to the second dismissal).

 

(5) During the course of the record of the January CMD, I have set out, at some length, my understanding of the subject-matter of the four Acts which were specified at paragraph 14 of the record of that CMD. In the same record I have gone to considerable lengths to identify the causes of action in respect of each of those Acts.

 

(6) Acts (1), (2) and (3) are not being pursued as claims. Therefore, there is now no need for anybody to focus on the cause of action which are listed in the January record in respect of Acts (1), (2) or (3).

 

(7) Instead the focus of attention should shift to the subject-matter of Act (4), as specified at paragraph 19 of the Record of Proceedings of the January CMD.

 

...

 

(8) Because the claimant has now decided not to pursue claims in respect of Acts (1), (2) or (3), the pre-hearing review, which had been scheduled to take place on 24 March 2016, has become irrelevant. (The PHR would have address time-limit and other issues in respect of those Acts)."

 

As a consequence of the foregoing, a decision was issued by the Tribunal on 26 April 2016, in which it was stated:-

 

"The claimant is continuing to pursue all of the claims which he has made in respect of his dismissal, in July 2015, by Primark.

 

All the claimant's other claims, as set out in the claim form ('the other claims') have now been withdrawn by the claimant during the course of the hearing.

 

Accordingly all of those other claims are now dismissed."

 

1.4 In light of the foregoing, the following issues to be identified by this Tribunal were identified, as set out in Paragraph 19 of the Record of Proceedings, dated 5 February 2016, of the Case Management Discussion on 20 January 2016, being the causes of action in respect of Act 4 (the second dismissal), namely:-

 

"(1) the claimant makes a complaint of unfair dismissal;

 

(2) he says the dismissal was a sexually discriminatory dismissal;

 

(3) he says that it was a religiously discriminatory dismissal;

 

(4) he asserts that the dismissal constituted discrimination under the DDA, in that it was directly discriminatory and/or because of constituted unjustified disability-related discrimination; and

 

(5) he said the second dismissal was also discriminatory contrary to the DDA because of the failure on the part of Primark to make the relevant reasonable adjustment (the reasonable adjustment mentioned at Paragraph 12 above)."

 

(As referred to previously, the reasonable adjustment relied upon by the claimant, as set out in Paragraph 12 of the said record, was that it would have consisted of the transferring of [JS] to a location other than the Bank Buildings store of Primark.)

 

1.5 At the commencement of the substantive hearing, the claimant confirmed that if the Tribunal found his dismissal was unfair, that he wished to obtain by way of remedy an award of compensation and, in particular, he did not seek an Order of Reinstatement and/or Re-engagement, pursuant to provisions of Article 147 - 151 of the Employment Rights (Northern Ireland) Order 1996.

 

1.6 At the commencement of the substantive hearing, the respondents' representative confirmed that the respondents did not accept that the claimant was a disabled person, who had a disability for the purposes of the Disability Discrimination Act 1995. It was not disputed, by the respondents' representative, that the first respondent was vicariously liable for the acts of the second, third, fourth and fifth respondents and/or any other employees of the first respondent, in relation to any Acts or omissions of them, or each of them, for the purposes of these proceedings, pursuant to the Sex Discrimination (Northern Ireland) Order 1976 and/or the Fair Employment and Treatment (Northern Ireland) Order 1998 and/or the Disability Discrimination Act 1995, as amended (see later).

 

2.1 The Tribunal heard oral evidence, on behalf of the claimant, from the claimant himself and also, his general practitioner, Dr S McCallan; and on behalf of the respondents from Rhonda Armstrong, Damian McCloskey, Jackie Byers, Brendan Wallace, Malcolm Campbell, Brian McKeown. Having considered the evidence given to the Tribunal by the parties and their witnesses as referred to above, the documents contained in the trial bundle, as amended during the course of the hearing and to which the Tribunal was referred, together with the submissions of the claimant and the respondents' representative, the Tribunal made the following findings of fact set out in the following sub-paragraphs, insofar as relevant and necessary for the determination of the claims of the claimant. In this context it is important to note the issues to be determined by the Tribunal were as identified in Paragraph 1.4 of this decision and, in particular, the reference therein to the claimant's dismissal in July 2015, the subject-matter of these proceedings. In this context, the Tribunal had to remind the claimant of these issues, so identified, and that the other claims, referred to in Paragraph 1.3 of this decision, were now withdrawn and he could not use these proceedings to 're-open' those claims now withdrawn. On occasion, as a litigant-in-person, the claimant found it difficult to understand this and/or to accept this restriction in these proceedings.

 

2.2 It was not disputed the claimant was Protestant. It was common case, by way of background to this matter, that there was an incident on 5 September 2011 in the Belfast store on the 4 ^th Floor corridor involving the claimant and JS, concerning an alleged assault of the claimant by JS; and, following a disciplinary process it was concluded by the respondent, after viewing of CCTV footage, that JS behaved in an inappropriate and threatening manner towards the claimant and thereby breached the respondents' Dignity and Respect at Work Policy and was given a Final Written Warning to remain active on his personnel file for a period of 12 months; but if his conduct improved and was maintained over the next 12 months this warning would become inactive on the said file. The said warning was headed 'Gross Misconduct - Breach of Dignity and Respect at Work Policy'. It was not the function of this Tribunal, for the purposes of these proceedings, to re-investigate this incident or indeed to consider different conclusions to those reached by the respondents and the penalty imposed by the respondents in the circumstances. The Tribunal decided, given that JS did not give any evidence in this matter, that he should be identified by his initials, having regard to the terms of the overriding objective.

 

2.3 The claimant in his witness statements, for the purpose of these proceedings, provided little or no evidence to support his claim that he had a disability, within the terms of the Disability Discrimination Act 1995, as amended, and was therefore a disabled person for the purposes of the said Act. It became apparent, during the course of the hearing, the claimant had assumed the medical evidence contained in the trial bundle, and, in particular, the reports of his General Practitioner, Dr McCallan, could be admitted in evidence without formal proof; albeit his said report was objected to by the respondents. Following submissions by the claimant and the respondents' representative, it was agreed, and the Tribunal directed/ordered, the medical reports, contained in the trial bundle would be admitted without formal proof - subject to the adjournment of the hearing to allow the claimant to give such further oral evidence, as he wished to do in relation to the issue of disability and further to be allowed to call Dr McCallan to formally prove his said reports and to give evidence on the claimant's behalf, who would then be the subject of cross-examination by the respondents' representative. There was also contained in the bundle a number of letters/statements from persons known to the claimant relating to his medical symptoms and their alleged knowledge of same. The Tribunal, following discussion, agreed to admit these statements in evidence as hearsay evidence, on the application of the claimant, as none of the authors of the documents were present to give evidence; but subject to the warning as to the weight, if any, which could be attached to the said evidence, in circumstances where the respondents' representative was unable to cross-examine the said witnesses on the matters set out therein. In the event, the Tribunal did not attach any weight to such evidence in light of the oral evidence given by the claimant and Dr McCallan and its conclusions in relation to their evidence as set out later in this decision; and, in particular, because the evidence contained in the statements, which was strongly objected to by the respondents' representatives, was not able to be tested in cross-examination. There was no good reason given by the claimant for the non-attendance of these witnesses in circumstances where the claimant was fully aware the witness statement procedure, as set out in the Record of Proceedings of the Case Management Discussion, was to be followed in these proceedings.

 

2.4 The claimant was examined, on behalf of the respondents on 23 May 2014 by Dr A H Rehman, Occupational Physician of Medical and Occupational Health Services, in which he stated, inter alia:-

 

" ...

 

Mr Bell has been employed as a retail assistant for the Belfast store of Primark since April 2005. He has been referred to MOHS as he has been absent from work since the 17 October 2011 following an incident whereby he was assaulted at work.

 

I understand that he has stated that due to a mental health condition that has been triggered by the assault he cannot return to work.

 

I note that he has been offered relocation to another store or adjustments to help him avoid the person in question within the original store where he worked, but this did not help in getting him to come back to work. When you referred him to us for the first time in 2012 and we tried on a number of occasions to engage with him and his GP, to be able to give you advice regarding his state of health and what could be done to support his return to work.

 

Unfortunately we were not successful in obtaining information on his state of health, as he failed to attend his GP.

 

...

 

Advice regarding management

 

At this moment in time he has been absent from work in excess of 2 years, having previously worked at Primark for 6 years. We have on numerous occasions tried to obtain medical information regarding his state of health, which so far has been unsuccessful, as Mr Bell has not engaged in the process.

 

As such, I will advice you regarding his state of health based on the information that we have. ...

 

As such we know that he has continued to be signed off as unfit to work by his GP. We know that he had not felt capable of returning to the store where he was originally employed, and that he has not expressed a desire to return to work or felt able to discuss redeployment.

 

Conclusion

 

Taking all the above into consideration, I would advise that from the medical evidence available to us, we can conclude that Mr Bell is suffering from a long term medical problem that prevents him returning to work.

 

In view of the length of his illness and his constant inability to discuss adjustments/redeployment options, it is my conclusion that he is likely to be unfit to work for the foreseeable future and, as such, I would advise that it is my opinion that, it would not be unreasonable to make a definitive employment decision on the ground of ill health."

 

2.5 In a further follow-up report by Dr Rehman, dated 16 December 2014, following a 10 December 2014 report, recently received by him from the claimant's GP, he stated, in light of this report:-

 

"Clinical Information

 

The GP has confirmed the following points to me:-

 

•          Mr Bell first attended her surgery on the 5 ^th September 2011 complaining of stress that had been triggered by an alleged physical assault at work by a colleague.

 

•          He was prescribed medication from that date, and regularly attends his GP for reviews.

 

•          His symptoms had deteriorated and he has stated that he did not feel safe at work.

 

•          He also suffered from stress due to financial issues.

 

•          In 2012 he continued to suffer from similar symptoms and his medication was increased.

 

•          As well as anxiety, in December 2012, he was also suffering from low mood.

 

•          He was referred to have therapy.

 

•          In 2013 the GP states that as there was no resolution of the workplace situation to Mr Bell's satisfaction, that his symptoms failed to improve and Mr Bell as referred to the Community Mental Health Team (CMHT).

 

•          In 2014 his symptoms persisted and were apparently exacerbated by meeting with his solicitor, employer and letters from occupational health.

 

•          His solicitor had sent him to be reviewed by Dr Lyons who has diagnosed Mr Bell as suffering from an adjustment disorder. The GP has ended the report by stating that Mr Bell would like to put the incident behind him, but that he feels unable to do this as long as the person who allegedly assaulted him is still in the same building.

 

Advice

 

Taking all of the above into consideration, I would advice that my interpretation of the medical evidence provided by the GP, is that Mr Bell is suffering from an ongoing adjustment disorder that has persisted as a result of:

 

•          Mr Bell's perception that the investigation into the alleged incident has had an unsatisfactory conclusion.

 

•          Mr Bell not wanting to return to work in the same building as the alleged aggressor.

 

I would suggest that you explore what can be done to alleviate Mr Bell's sensation of threat to his personal safety when in the same building as the alleged aggressor. As it is my understanding that Mr Bell will not return to work if he is in the same building as the alleged aggressor. I would suggest that if you feel that it is either unfair or unreasonable to redeploy the alleged aggressor that Mr Bell is offered a transfer to another building. If Mr Bell declines to consider this option, you may need to make a definitive employment decision.

 

Conclusion

 

•          Mr Bell has been absent from work in excess of three years, as he is suffering from an adjustment disorder that has arisen following an allegation that he made against a colleague who he claims physically assaulted him.

 

•          Mr Bell's mental health will not improve until he feels vindicated.

 

...

 

•          My understanding from the GP is that Mr Bell will not return to work in the same building as his alleged aggressor.

 

•          If a reasonable and mutually agreeable solution cannot be reached regarding this point, you may need to make a definitive decision."

 

2.6 In his report dated 10 December 2014 to Dr Rehman, as referred to previously, also Dr McCallan stated, in particular:-

 

" ...

 

With regards his diagnosis and prognosis, I feel Mr Bell has been under extreme stress since this incident and displays some symptoms of anxiety and depression with irritability and insomnia.

 

...

 

He has had a psychiatric review, arranged by his solicitors, by Dr Lyons who felt he was suffering from a Adjustment Disorder.

 

Mr Bell is keen to put this incident behind him and return to work in the same building and he is, therefore, unwilling to return whilst he feels there is a threat to his safety He continues on Vensir XL 150 mg and I have recently suggested he speaks to New Life Counselling for support.

 

In summary, I feel Mr Bell continues to be suffering severe stress due to this incident and the financial stress it has produced. His life has resolved around this issue for 3 years and he often has thoughts of life not worth living as a result ... . I feel this will only be improved once a suitable resolution has been agreed by both parties."

 

2.7 As referred to previously, Dr A Lyons, Consultant Psychiatrist, in his report, dated 8 August 2013, concluded:-

 

" ...

 

The diagnosis is one of an adjustment disorder F43.2. It is difficult to see how this matter will be resolved and until there is some type of resolution I think this man will continue to have symptoms. Therefore, his adjustment disorder will be of the prolonged type and this could be coded under F43.23 in ICD Classification."

 

There was no up-to-date report obtained from Dr Lyons by the claimant and, in particular relevant to this condition at the time of dismissal.

 

This report was clearly obtained by his then solicitors, for the purposes of the civil claim brought by the claimant against the respondent, in which the County Court Judge made an award of £2,512.00 in relation to the incident on 5 September 2011; made up of an award of £1,000.00 general damages (ie pain and suffering) and £1,512.00 special damages (ie loss of earnings). In a report/letter by the claimant's solicitors, it was noted the Judge was " satisfied there was an incident on 5 September 2011 and that you had suffered a prolonged adjustment disorder as a result. She found the adjustment disorder was caused both by the incident and by the way in which the employer dealt with it. The Judge found that you were not entitled to any damages for loss beyond the initial adjustments to the incident".

 

2.8 In a further letter/report, dated 20 September 2016, Dr McCallan reported:-

 

" ...

 

Mr Bell has been off work for a prolonged period now due to an incident several years ago. As a result he has had limited income which has produced considerable stress and symptoms of depression. He is on antidepressants and suffers from anhedonia, low mood and poor concentration and often does not want to leave the house ... ."

 

In a further report/letter dated 14 October 2016, Dr McCallan reported:-

 

" ...

 

Further to my letter of the 20/9/16, I have been asked to clarify some information. Mr Bell suffers from depression and as a result of this often people who suffer from this condition struggle to leave the house due to fear and lack of motivation. Mr Bell suffers from this condition and as a result would struggle to leave the home periodically."

 

2.9 Dr McCallan gave oral evidence to the Tribunal and was the subject of cross-examination by the respondents' representative. In essence, he repeated what he had set out in his reports/letters, as referred to previously, but he accepted what was stated as the claimant's symptoms/ongoing difficulties, set out in his reports/letters, was on the basis of what he was told by the claimant and he would always act as an advocate for his patient. He further did not dispute that a fair summation of the claimant's situation would be the claimant would not return to work if JS was in the building. However, following detailed questioning by the respondents' representative and in answer to the Tribunal, Dr McCallan remained of the opinion the claimant had symptoms of depression and he also noted Dr Lyons, a consultant psychiatrist, and an expert in this field unlike him, had previously given a diagnosis of an adjustment disorder. He confirmed the claimant was on 150 mg level of antidepressants, which was in mid-range and had been at that level for 12 months. He put his depression at mild to moderate but indicated that, if the claimant had thoughts of not worth living, then his depression would be seen to be more severe. Dr McCallan did not dispute that the claimant was physically fit to go to work but he queried whether the claimant was medically fit to go back to work on the basis of his symptoms as relayed to him.

 

2.10 The claimant similarly, in his oral evidence, did not dispute he was physically able to go to work and, in terms, he repeated the symptoms, as recorded by Dr McCallan. He stated the antidepressants prescribed for him relieved his symptoms. Having observed the claimant closely throughout his evidence, the Tribunal had little doubt that the claimant, for the purposes of these proceedings, was prepared to exaggerate his symptoms and the extent of same. It noted, in particular, the claimant accepted, in evidence, if JS had been removed from working at the Belfast premises of the respondents, Bank Buildings, that he could have returned to work, without any other adjustment or change and indeed would have been immediately fit to do so.

 

2.11 For the purposes of these proceedings and the issues to be determined by the Tribunal, noting again the Tribunal is not concerned with matters the subject of the previous proceedings on 2 February 2014, the claimant wrote to the Head Office of the respondents in Reading raising a grievance against the Human Resources Manager, Ms C Archibald and Brian McKeown, the Belfast (Bank Buildings) Store Manager. In a reply, dated 20 February 2014, noting the claimant had been absent from work from 17 October 2012, Mr Damian McCloskey (Area Manager for Northern Ireland) sought to arrange a grievance hearing to discuss his complaints against the said managers. In the letter it was stated:-

 

"I can confirm that this meeting can be postponed until you are fit and able to participate in this meeting. However, if you would like to continue with these formal proceedings at this time, then I would like to facilitate this, if you feel that this will help resolve any issues and support your return to work. If and when you do wish to continue with these formal proceedings, I would ask you to contact me directly on ... to arrange a grievance hearing. This can take place at a mutually agreeable venue ... . Finally if I do not hear from you by 7 ^th March 2014 then I shall assume that you do not wish to continue with the grievance process until such time that you return to work. I can confirm that until such time that you contact me I shall not make any further contact with you in regard to your grievance."

 

The respondents wrote letters to the claimant, on 30 June 2014, 23 July 2014 and 28 July 2014, again setting out the options, similar to those previously stated in Mr McCloskey's letter, setting out the claimant's options for progressing his said grievance and explaining the relevant procedures for handling grievances set out in the 2014 Staff Handbook, a copy of which was provided to him, to progress his grievance. In the letter dated 28 July 2014, Mr S Reddin, Employee Relations Office, gave the claimant a further opportunity, after reviewing the previous correspondence and the failure by the claimant to properly respond as required under the procedures, with a further opportunity to do so:-

 

" ...

 

I am sorry to hear that you did not believe this provided you with sufficient opportunity to respond, to remedy this I now write to offer a revised deadline of 8 August 2014 for you to contact Mr McCloskey and advise him if you would like to:-

 

•          arrange a grievance meeting in person while you are certified sick and absent from work, or

 

•          conduct the grievance by postal correspondence or alternative methods, or

 

•          delay the grievance hearing until you return to work.

 

I have also noted your comment that no investigation has been started. As per the grievance procedure outlined above, it is standard practice to meet for a grievance hearing first and for the investigation to be then completed following the grievance hearing. I understand this is why Damian is keen to meet with you. If however you are advising us that you would prefer not to follow the standard grievance procedure and that you wish Damian to carry out the investigation without having met with you for a grievance hearing then this can be arranged.

 

Given that you have been absent from work since 17 October 2011 due to stress I am also keen to make certain that you are given these choices, allowing you to choose the option which is most appropriate for you at this time.

 

Any additional matters of concern that you wish to address, such as the delay in correspondence can be discussed at the grievance hearing. I will advise Mr McCloskey that you will make contact with him in the near future when you have decided how you would like to proceed, if you have any questions until then please do not hesitate to contact me directly ... ."

 

Again, despite the period of time being extended, the various options offered, which the Tribunal is satisfied on the evidence were genuine options offered to him, the claimant failed to engage with Mr McCloskey, as requested. Indeed his continuing and repeated failure to do so, save on his own terms and with the result he wanted, came to be seen by the Tribunal to be a feature of the claimant's conduct in this matter, at all times relevant to these proceedings..

 

2.12 On 8 September 2014, Ms J Byers, the store manager of the respondents' premises in Newtownabbey wrote to the claimant, having been asked to carry out a capability meeting on foot of the respondents' Sickness and Absence Policy, contained in the Staff Handbook 2014.

 

In the letter she stated:-

 

"I refer to previous correspondence concerning your continued absence from work. For the record, you have been continuously absence since 17 ^th October 2011, a total of 151 weeks.

 

Background

 

M/S Catherine Archibald, HR Manager, wrote to you on 27 December 2013 informing you of her intention to refer you to Medical and Occupational Health Services (MOHS) in order for Primark to understand how your health is affecting your ability to do you job and determine whether adjustments could be put in place to assist you in returning to work; you did not respond to M/S Archibald at this time. ... "

 

The letter then referred to the failure of the claimant repeatedly to engage with the process and, in particular, the Occupational Health process with the consequence advice was sought from Dr Rehman Occupational Physician with MOHS who sent a report dated 23 May 2014 - reference to which has been made previously in this decision. A copy was given to the claimant attached to this letter.

 

The letter then concluded:-

 

"As per the long term absence process, unless satisfactory evidence is presented that you will be in a position to resume regular and reliable employment in the near future, thereby fulfilling your contract of employment, I may consider a definitive employment decision on the grounds of ill health.

 

However, in accordance with the principles of natural justice, in view of the Occupational Health advice, and in an attempt to facilitate a return to work, we now offer you the opportunity to provide us with details as to the type of work you are currently fit to perform and a date on which you would be able to return to work under these adjusted conditions ... ."

 

A date, time and place, at the Hilton Hotel in Belfast, was fixed for the meeting but the claimant was told, if he was uncomfortable with the said hotel for the meeting, it could be held at his home or another location convenient to him. He was asked to contact Ms Byers if he wished to make alternative arrangements.

 

The letter finally concluded:-

 

"Should you fail to attend this meeting or make contact with me, a decision may be made in your absence and I may consider a definitive employment decision on the grounds of ill health unless I hear from you to the contrary, I expect to see you at the appointed time. You may wish to be represented by a work colleague or trade union representative at this meeting."

 

2.13 The claimant met with Ms Byers, as arranged, and she concluded he was keen to return to work. As a consequence of what was said at the meeting, Ms Byers wrote to the claimant on 8 October 2014, noting her concern he was still experiencing symptoms of stress and depression but expressing her hope to be able to work with him to facilitate a return to work in the near future.

 

In the letter, after referring to the background to this matter, as set out in previous correspondence, she noted the following, and which the Tribunal is satisfied is an accurate record/summary of what occurred at the meeting and, further, is confirmed by the notes taken at the meeting:-

 

" Capability Meeting

 

At our meeting we discussed the background of your case, our current circumstances and your wishes for the future. I have summarised the points we discussed and your responses to me below:-

 

•          at present you continue to suffer from stress, depression and diabetes;

 

•          you find it difficult to leave home unless it is for an event that has been pre-planned;

 

•          you are currently on medication to relieve the symptoms of your illness and have been so for the last 3 years;

 

•          you have been attending weekly support sessions with an organisation called 'Aware Mental Health' which you have found to be beneficial;

 

•          you are now willing to consent to a MOHS customised medical;

 

•          you are keen to return to work in Primark Bank Buildings;

 

•          you wish to return under your existing contract of 37.5 hours per week;

 

•          you would like to be allocated the first lunch break daily and work on the Menswear Department;

 

•          I asked you to advise me of any adjustments that we could make to support you in a successful return to work programme;

 

•          you declined any adjustments and you stated you wished to return to Primark, Bank Buildings under your existing terms and conditions;

 

•          your only request for a successful return to work was the reassurance of a 'safe environment';

 

•          part of your requirement for a 'safe environment' will consist of no verbal or non-verbal communication between yourself and JS (Stockroom Supervisor);

 

•          you confirmed that there are no other adjustments or support mechanisms required to assist you at work."

 

In light of the foregoing and to support the claimant's return to work and to put in place reasonable adjustments and safeguarding mechanisms to aid his return, Ms Byers also proposed the following 12 matters which the Tribunal found detailed and comprehensive:-

 

•          you discuss your intention to return to work with your GP;

 

•          if your GP agrees that you are ready to return to work, it would be helpful for them to provide us with their recommendations on any adjustments that they believe may support your return;

 

•          you would return to your role as Retail Assistant at Primark Bank Buildings on your existing contract (37.5 hours per week);

 

•          if you do find an immediate return to working full hours too much ... happy to discuss a phased return or a temporary amendment to working hours with you;

 

•          you would attend an induction to help to welcome you back to the store ...

 

•          you will be allocated the first lunch break each day;

 

•          GH (Assistant Manager) and BMcM (Senior Department Manager) will be a point of daily contact if you feel the need to talk to someone about issues in the store;

 

•          you will have weekly reviews with RA to discuss how your return to work is going and review any additional requirements or adjustments that may be necessary;

 

•          we agree a 'buddy' who you feel comfortable to accompany you on required visits to the stockroom;

 

•          you can use the 5 ^th floor men's toilets rather then the 4 ^th floor toilets, if preferred;

 

•          EMcC will meet with JS and advise him not to have any contact with you;

 

•          If there are concerns regarding your health in future, you will agree to a referral to Primark's Occupational Health provider for assessment."

 

She concluded by proposing a return to work date of 20 October 2014 but also emphasised she wished to be certain he was comfortable with these recommendations and that he had an opportunity to speak to his director and prepare himself for his return to work. It was apparent from the letter the return date of 20 October 2014 was not set in stone but in the absence of any response by 17 October 2014. Ms Byers assumed he would return on 20 October 2014, as proposed.

 

It became apparent during the evidence of Dr McCallan that he was never shown this letter and the proposed recommendations by the claimant. It appears at some time, but not clear when, there was some discussion with the claimant relating to some aspects of these recommendations as he recalled some mention of 'first lunch break'.

 

2.14 The claimant failed to return to work or to contact Ms Byers as set out in the said letter of 8 October 2014. Despite a reminder letter dated 21 October 2014, enclosing the letter of 8 October 2014 and two phone calls, Ms Byers still was unable to contact the claimant. In evidence to the Tribunal, he was unable to explain there failures, other than to suggest, unconvincingly, he had not been able to get in contact with his doctor and he was not communicating with anybody at that time.

 

2.15 Given the detailed discussion with Ms Byers, which appears to have been open and friendly, it is to be noted that the claimant, whilst he clearly made reference, as seen, to the incident involving JS and his continued employment in Bank Buildings, made no allegation of discrimination on the grounds of sex, disability or religious belief.

 

2.16 By letter dated 17 April 2015, Mr B Wallace, Store Manager, who had been asked to conduct a capability review in relation to the claimant wrote to the claimant in the following terms:-

 

"I understand you have been continuously absent from work since 17 ^th of October 2011, a total of 177 weeks; I have been appointed as an independent manager to conduct your capability meeting.

 

By way of background, you previously attended a capability meeting with Mrs Jacqui Byers, Store Manager, on 24 ^th of September 2014. Mrs Byers wrote to you on 8 ^th of October 2014 advising you that she was keen to support your wish to return to work and proposed a number of recommendations to support you in this process; you were expected to return to work on 20 ^th of October 2014.

 

You did not return to work as anticipated and both Mrs Byers and Mrs Rhonda Armstrong, HR Manager, made several attempts to contact you however they were unable to speak to you. I understand at this time your medical certificate had expired and you had not provided an update and certificate; as such Mrs Rhonda Armstrong, wrote to you on 30 ^th of October 2014 inviting you to an investigatory meeting regarding your absence with Mrs Rosemarie Stevenson, Assistant Manager; the meeting was scheduled to take place on 5 ^th of November 2014.

 

On or around the 3 ^rd of November 2014, Mrs Elizabeth McCalmont, Assistant Manager, received a telephone call at the Primark, Bank Buildings Store, from Councillor [BM]. Councillor [BM] advised Mrs McCalmont that you had contacted him as you found correspondence from Primark distressing. [Again the Tribunal has identified the Councillor by his initials, as he did not give evidence to the Tribunal.]

 

Since this time, as a reasonable adjustment for our standard processes we have attempted to find alternative ways to communicate with you. To date we have sought assistance from your GP; your chosen union, USDAW, and made enquiries with your previous instructed firm of solicitors, Thompsons; I understand neither of these parties were able to assist us by liaising with you regarding this process.

 

As we have been unable to find alternative appropriate ways to correspond with you, I have made the decision to write to you as I believe it is important that regular contact is maintained with you by Primark, as your employer.

 

Following correspondence with your GP, you gave consent for medical and Occupational Health Service to make arrangements for a customised medical assessment to be completed with you GP. The report was obtained in order for Primark to understand how your health is affecting your ability to do your job and also to determine whether we can put into place any adjustments or support to assist you in returning to work.

 

For your reference I am enclosing a copy of the medical report dated 16 ^th of December 2016 from Dr H. J. Rehman - Occupational Physician and Medical and Occupational Health Services.

 

The report conclusion/summary states the following:

 

•          Mr Bell has been absent from work in excess of three years, as he is suffering from an adjustment disorder that has arisen following an allegation that he made against a colleague who he claims physically assaulted him.

 

•          Mr Bell's mental health will not improve until he feels vindicated.

 

•          I understand he has instructed solicitors.

 

•          My understanding from the GP will not return to work in the same building as his alleged aggressor.

 

•          If a reasonable and mutually agreeable solution cannot be reached regarding this point, you may need to make a definitive decision.

 

Throughout our correspondence with you we have advised that unless satisfactory evidence is presented that you will be in a position to resume regular and reliable employment in the near future, thereby fulfilling your contract of employment, or we may have to consider a definitive employment decision on the grounds of ill health.

 

However, in accordance with the principles of natural justice, in view of the Occupational Health report, and in an attempt to facilitate return to work we now offer you the opportunity to provide us with details to the type of work you are currently fit to perform and a date on which you will be able to return to work under these adjusted conditions ... ."

 

The claimant was then invited to attend a capability meeting at the Hilton Hotel on 30 April 2015. The letter also stated that the claimant should contact Mr Wallace if he wished to make alternative arrangements for the meeting. However, the letter also warned the claimant that:-

 

"Should you fail to attend this meeting or make contact with the undersigned, then a decision will be made in your absence and we may have to consider a definitive employment decision on the grounds of ill health.

 

Unless we hear from you to the contrary we will expect to see you at the appointed time. You may wish to be represented by a work colleague or trade union representative at this meeting. If you require support or assistance as part of this process, Primark now has a Employee Assistance Programme provided by the Retail Trust who offer a wide range of service and information which may be of interest to you; I enclose a leaflet with their details for your reference."

 

2.17 The claimant did not attend the said meeting or contact Mr Wallace regarding his reasons for not attending. Mr Wallace therefore sent a letter, dated 6 May 2015, in similar terms to his letter dated 17 April 2015 inviting the claimant to attend a capability meeting with Mr Wallace on 18 May 2015 at the same venue. Again, the claimant did not attend the said meeting on 18 May 2015 but a phone call was received from a solicitor on 15 May 2015 requesting that the date of the meeting be postponed, to which Mr Wallace agreed. He therefore sent a further letter dated 23 May 2015, inviting the claimant to attend a re-scheduled capability meeting on 4 June 2015. Again, the claimant wrote to Mr Wallace on 31 May 2015, stating that he was unable to attend the said meeting, arranged as aforesaid, due to a long planned event and would not also be available on 11 June 2015. Once again, the claimant was written to by Mr Wallace, in a letter dated 16 June 2015, inviting him to attend a re-scheduled capability meeting on 2 July 2015. By letter dated 29 June 2015, the claimant wrote to Mr Wallace explaining that the person due to accompany him to the meeting on 2 July 2015 had been placed on jury duty and would not be available to attend the meeting and he asked for a further date for a re-scheduled meeting.

 

By letter dated 4 July 2015, Mr Wallace wrote to the claimant in which he referred to the various invitations for the meetings, as set out in the previous correspondence, concluding:-

 

"You wrote to me on 29 ^th of June 2015 advising me you would not attend the capability meeting scheduled for 2 ^nd of July 2015 as your chosen representative is no longer available.

 

In my letter dated 16 ^th of June 2015, I advised you that should you fail to attend the capability meeting scheduled for 2 ^nd of July 2015, then a decision will be made in your absence, and may have to consider a definitive employment decision on the grounds of ill health.

 

Notwithstanding this, I am keen to still afford you an opportunity to comment on the Occupational Health report dated 16 ^th of December 2014, and to understand your current circumstances. I therefore invite you to provide any written submissions [to the address above] you wish me to consider by 17 ^th of July 2015.

 

If you do not wish me to consider any written submissions may I suggest that you include an update regarding your health, your suggestions regarding reasonable adjustments that we may be able to consider either at the Bank Buildings Store or other stores you may be interested in working in to facilitate a return to work.

 

For the avoidance of doubt, I will be making a decision regarding your employment on 17 ^th of July 2015, depending on the evidence available this may be a definitive decision on the grounds of ill health."

 

2.18 By letter dated 17 July 2015, the claimant wrote to Mr Wallace, expressing his disappointment and suggesting he had been given a different and selective treatment by Primark management. He further disputed that Mr Wallace was an independent manager.

 

He also stated:-

 

"Mrs Jacqui Byers and I met for a 'capability meeting' on 24 ^th of September 2014. Where Mrs Byers asked repeatedly that I contact and let Primark contact my doctor for medical information on my current condition. I agreed to contact my doctor and to let Primark do the same. I also informed Mrs Byers that Primark and its representatives had all of my medical records already; and a letter from my doctor. At this meeting I asked Mrs Byers to guarantee my safety in the workplace free from intimidation, bullying, harassment and physical assault due to the fact that JS, Stockroom Supervisor, an employee, who had assaulted me was still gainfully employed in his supervisor position as stockroom supervisor. Mrs Byers would not do that nor would HR Belfast do that when asked to do so - and again refuse in letters to me.

 

In October Mrs Byers wanted me in work on 20 ^th of October. At no time at the meeting on 24 ^th of September 2014 was a start date discussed. But Mrs Byers chose to pick one out of the air - the 20 ^th of October [2014] and write to me! The capability meeting resulted in me to contact my doctor and Primark as well!! Primark's Occupational Health team contacted my doctor on 26 ^th of November 2014 so Mrs Byers wanted me in work along with Rhonda Armstrong on 20 ^th of October 2014. Not waiting for my doctor to say I was okay to return to work at any time - let alone their date of 20 ^th of October 2014 and not waiting for Primark's own review of my doctor's report to them. Again Primark Occupational Health team are only recorded by my surgery as contacting them on 26 ^th of November 2014. This is 50 days after Mrs Byers' letter telling me to return to work. Mrs Byers truly exceeded her manager role and qualifications. I write complaining of this I write complaining of many things that Primark manager did and didn't do, including Mr D McCloskey refused to begin formal proceedings of complaints which he had in writing. In all meetings that I was told to attend with Primark's staff at Hilton Hotel, it was stated decisions would be made if I was present or not. It is strange Mr Damian McCloskey never wrote telling me to go to a meeting at Hilton Hotel. I complained to head office about this actions - nothing was done.

 

As always stated I can do my job as long as I am free from intimidation, bullying, harassment and assault. Primark do not answer this in request to do so to keep me safe from JS. You have all medical information and I still suffer from stress as my doctor states.

 

He wrote to Occupational Health Primark on 10 ^th of December 2014 in [response] to their letter of 26 ^th of November 2014. (Remember Mrs Byers wanted me in work on 20 ^th of October 2014 without a return date being discussed! with me and with Rhonda Armstrong's approval and without waiting medical clearance for a return to work).

 

For the avoidance of doubt not only must you stand over your decisions and actions in reporting to Primark, but to other places as well."

 

2.19 By letter dated 23 July 2015, Mr Wallace wrote to the claimant, stating at the outset of his letter, that the claimant had been continuously absent from work since 17 October 2011, a total of 196 weeks due to stress and depression. By way of background information, he referred to the matters set out in the previous paragraphs, in particular, Mrs Byers' letter of 8 October 2014 and the various attempts, subsequently, to arrange meetings with the claimant and his decision, in light of the foregoing, and in the absence of being able to find alternative appropriate ways to correspond with the claimant, he had made the decision to write to the claimant and invite him to a capability meeting. He then set out, in detail, the various attempts to schedule capability meetings with the claimant, concluding with his invitation for the claimant to provide with him written submissions, which he did in his letter dated 17 July 2015.

 

Under the heading 'response', Mr Wallace, in his said letter stated:-

 

"In your letter you raise a number of issues, some of which relate to procedure and some which relate to your current fitness for work. I would like to deal with the procedural issues first and can confirm the following:

 

•          You are not being treated differently to any other employee following a period of long term sickness absence.

 

•          I confirm that I have been appointed as an independent manager to hold a capability meeting with you.

 

•          Prior to the capability meeting held with Jacqui Byers, we did not have access to any medical records.

 

•          Having reviewed Jacqui's response to you, I believe she did consider your safety and well-being and proposed appropriate and safeguarding recommendations.

 

•          Jacqui did propose a return to work date following your meeting, this was 20 ^th of October 2014, I note that she also advised you that 'I wished to make certain you are comfortable with these recommendations and that you have the opportunity to speak to your doctor and prepare yourself for a return to work. If agreeable I proposed a return to work date of Monday 20 ^th of October 2014. If you would like to return before this time or need more time to prepare to come back to me please contact me directly to discuss this. If I do not hear from you by 17 ^th of October 2014 I would presume that you are happy with the proposed return to work date and the store will look forward to welcoming you back'.

 

•          Jacqui suggested the return to work date to allow you an opportunity to speak to your doctor and prepare yourself for a return to work.

 

•          We have not received any complaint from you regarding Jacqui, the capability meeting or the outcome letter sent to you.

 

•          I understand you were written to by Damian McCloskey who has responded to you providing you with options to hear any grievances you wish to make.

 

•          In relation to your fitness for work you told me:

 

'As always stated I can do my job as long as I am free from intimidation, bullying, harassment and assault. Primark do not answer this and request to do so to keep me safe from JS. You have all the medical information and I still suffer from stress as my doctor states.'

 

•          In addition to your written submission I have also considered the medical information. For clarity, as the proposed return to work with adjustments was unsuccessful on 20 ^th of October 2014, and following receipt on information from Councillor [BM] that you found correspondence from Primark distressing; you were referred to Medical and Occupational Health Services (MOHS) for a customised medical assessment."

 

The letter then referred to the report, dated 16 ^th of December 2014, which has been referred to, in detail, previously in this decision.

 

Mr Wallace then set out his decision in the said letter:-

 

"You have now been continuously been absent from work since 17 ^th of October 2011, a total of 196 weeks. As you've not attended the capability meetings I have based my decision on the medical report, your written submission and by reviewing the history of your absence. Following the capability meeting you attended with Jacqui, you were offered a number of reasonable adjustments to support your return to work on 20 ^th of October 2014; I enclose a copy of Jacqui's letter for your reference. I note that during your meeting with Jacqui you stated that you wished to return to the Bank Buildings store on your existing contract and you wished to return to a safe working environment; to facilitate this Jacqui made a number of proposals. ... ."

 

Mr Wallace then set out the proposals set out in the letter dated 8 October 2014, which again has been referred to in detail previously in this decision.

 

Mr Wallace then stated:-

 

" ... Having reviewed the above I believe we have previously attempted all of the adjustments possible to support your return to work.

 

I acknowledge the advice given by Dr Rehman:

 

'I would suggest that you explore what can be done to alleviate Mr Bell's sensation of threat to his personal safety when in the same building as his alleged aggressor. As it is my understanding that Mr Bell will not return to work if he is in the same building as the alleged aggressor. I would suggest that if you feel that it is either unfair or reasonable to redeploy the alleged aggressor that Mr Bell is offered a transfer to another building'.

 

I am satisfied that appropriate action was taken at the time of the incident in October 2011, it would therefore I believe be unfair and unreasonable to move JS. I am also aware that you have previously declined transfer opportunities to work in other stores.

 

You've provided little additional medical evidence for me to consider, other than your comment that you 'still suffer from stress', furthermore you have not provided any details of when you believe you may return to work, or the type of duties you may be able to complete.

 

Having considered the length of your absence, the medical report provided by MOHS and the previous unsuccessful attempt at facilitating a return to work, I do not believe that you will not be well enough to return to work in a busy retail environment such as Primark in the foreseeable future.

 

I have therefore regrettably decided to terminate your employment, subject to 10 weeks' notice due to lack of capability to fulfil your job role as a result of your continuing ill health (Staff Handbook Page 17 to 24.C).

 

Due to your ill health and inability to work your notice period, your notice period will be paid in lieu and your termination of employment will be effective as from the date of this letter. As a significant amount of time had passed since you were last paid, I would be grateful if you would kindly confirm the bank account details you would like this payment sent to. If I do not hear from you payroll will process the payment to the last account details held on file.

 

Your P45 will be sent to you under separate cover.

 

The Staff Handbook states on Page 26 that you have right to appeal against this disciplinary action and may do so, in writing to Mr Damian McCloskey, Area Manager (at the above address) within two weeks of this letter being received by you."

 

2.20 By letter dated 3 August 2015 (albeit incorrectly stated as 3 July 2015), the claimant appealed the said decision to terminate his employment. In his letter to Mr McCloskey, he stated:-

 

"I have previously complained to Head Office about your actions and inactions re: letter asking for a formal grievance procedure to be started. You did start my request for this - because I was off work sick. How can you do the appeal process - you ignore proper procedure staff handbook Primark. Primark's actions have been amazing, shocking and selective in use of staff handbooks since 2011. Also the sections of interviews chosen also selective ref spec to capability meetings Brendan Wallace demanded. He chose to stop the process. 1. meeting was just before the court date with Primark settlement again in my favour. 1. meeting was just after court date with Primark. The last meeting I was attending was cancelled because person accompanying me was no longer available on jury duty. Reference to J Byers' capability meeting. No return date was discussed only that I would contact my doctor to prepare Occupational Health report and for Primark Occupational Health Department to also contact my doctor. They did not do this until November 26 ^th 2014 - 64 days after capability meeting with J Byers on 24 ^th of September 2014. So I appeal this decision to you Damian McCloskey."

 

2.21 By letter dated 27 August 2015, Mr M Campbell, Area Manager, wrote to the claimant as follows:-

 

"I refer to your letter addressed to Mr Damian McCloskey, Area Manager. I understand you wish to appeal the decision made by Mr Brendan Wallace, Store Manager, dismissing you to due to lack of capability to fulfil the job role of a retail assistant due to your continuing ill health.

 

I understand you objected to Damian being the appointed Appeal Hearing Manager, as such I (Malcolm Campbell, Area Manager) have been asked to hear your appeal.

 

Having read your letter I understand the points of your appeal are as follows:

 

•          You believe your condition was brought about from work and by Primark's actions.

 

•          You believe Primark's actions have been 'amazing, shocking and selective' in use of the staff handbook.

 

•          A return to work was not discussed with Jacqui Byers during the previous capability meeting.

 

•          You were not referred to Occupational Health until 26 ^th of November 2014.

 

•          You appeal the decision made to dismiss you.

 

•          The proposed date for your appeal hearing is as follows:

 

Thursday 3 ^rd of September 2015 (at the Hilton Hotel)

 

You may wish to be represented by a work colleague or trade union representative.

 

Unless I hear from the contrary I look forward to seeing you at the appointed time."

 

2.22 The claimant sent a letter, dated 31 August 2015 to the Primark Head Office in Reading stating that he could not attend, stating:-

 

"As previously explained to previous Primark staff, I need more notice for meetings, to arrange for them not five or six days that your letter dated 27 ^th of August gives me. Re-arrange meeting day.

 

In response to the points on your list. My condition and situation in and was brought about by Primark staff and actions.

 

As for Primark's actions being amazing, shocking and selective you Mr Campbell are proof of this. Previous complaints about Mr McCloskey's actions and refusal to begin formal grievance procedures were ignored and brushed aside. These complaints went to Head Office and passed back to Mr McCloskey. Primark's actions are selective, as they were when they dealt with my assault by JS. Primark make and made decisions whether they had medical reports requested after meetings or not or in report to my doctor in November 2014. At least two weeks' notice needed before meeting ... ."

 

This letter was received at the Head Office in Reading on the same day as the appeal was due to be heard. Regrettably, this was not known of or in the possession of Mr Campbell at the time of the appeal. Mr Campbell, having heard nothing from the claimant, telephoned him and, on the third occasion of trying, got speaking to the claimant. The claimant refused to engage and referred to the letter he had sent to the Head Office in Reading. Mr Campbell, in evidence to the Tribunal, which the Tribunal accepts, was told by the claimant, in this telephone call, the claimant would not discuss with Mr Campbell the reasons why he could not attend but simply referred him to the letter he had sent to the Head Office, which as stated previously, Mr Campbell had not been previously aware of at the time, as the Tribunal accepts. Following this telephone call, and having considered the papers and the appeal letter, Mr Campbell decided that the claimant would have had sufficient time to prepare for the meeting and he also formed the view that he had sufficient material to complete the appeal, without the necessity for any further hearing.

 

2.23 In a letter dated 29 September 2015, Mr Campbell, who was the area manager (Scotland and North East England) wrote to the claimant in relation to his decision in respect of the claimant's appeal stating:-

 

"I refer to the appeal scheduled at the Hilton Hotel, Belfast on 3 ^rd of September 2015 with myself, into the outcome of your dismissal.

 

By way of background I wrote to you on 27 ^th of August 2015 inviting you to attend an appeal hearing on 3 ^rd of September 2015; you failed to attend this meeting or contact me regarding your reasons for not attending. On the day of the meeting I contacted you by telephone, as I was concerned that you had failed to attend. You stated that you did not wish to enter into conversation with me over the phone and had sent a subsequent letter detailing why you could not attend. Having read your letter received on 3 ^rd of September 2015, I have taken time to consider and review all relevant information received in relation to the appeal and I am satisfied that I have sufficient information to respond to your appeal without a further meeting.

 

Please find my response to the points of your appeal as outlined on your invitation letter:

 

Appeal Point 1:

 

You believe your condition was brought about from work and by Primark's actions.

 

Response to Appeal Point 1:

 

In relation to this point, I think it might be useful if I were to clarify the purpose of the disciplinary appeal process for you. It is an opportunity for your to explain why you think the decision to terminate your employment on the grounds of ill health capability was not the right decision to make and for me to consider this, in light of what you say and decide whether there is relevant additional information to consider and then whether the decision should be upheld or changed.

 

You have provided no additional information in relation to this point to enable me to establish how this is relevant to you being able to return to work and therefore how it would change Brendan Wallace's decision to dismiss you on the grounds of ill health capability.

 

I know Brendan did address this issue as part of his response, when he advised that 'I am satisfied that appropriate action was taken at the time of the incident in October 2011, it would therefore be unfair and unreasonable to move JS. I am also aware that you have previously declined transfer opportunities to work in other stores'. You have not provided any additional information which would lead me to reach a different conclusion.

 

Appeal Point 2:

 

You believe Primark's actions have been 'amazing, shocking and selective' in use of the staff handbook.

 

Response to Appeal Point 2:

 

Having reviewed all meetings and investigations in detail held with yourself, I believe Primark considered all parties involved. There was no evidence that either Jacqui Byers or Brendan Wallace were being 'selective' in the use of the staff handbook.

 

Appeal Point 3:

 

A return to work was not discussed with Jacqui Byers during the previous capability meeting.

 

Response to Appeal Point 3:

 

Having read Jacqui's response to you following your capability meeting on 24 ^th of September 2014 I note the following:

 

Jacqui discussed the background to your case, your current circumstances at the time and also your wishes for the future. This gave you reassurance that reasonable adjustments will be made to aid your return to work if necessary. In addition, following your meeting Jacqui provided you with a proposed plan to return to work on 20 ^th of October 2014 and again reassured that only if agreeable by yourself.

 

Jacqui's response to you gave you the opportunity to return before this time or if not suitable, to contact her directly and I believe this was appropriate to ensure a proposed return to work date would then be considered by you, as your absence could not continue indefinitely.

 

Appeal Point 4:

 

You were not referred to Occupational Health until 26 ^th of November 2014.

 

Response to Appeal Point 4:

 

In your appeal letter you outlined that no return date was discussed with Jacqui Byers (at your meeting on 24 ^th of September 2014, only that you would contact your doctor to prepare an OC report and for Primark to contact the OC Department to also contact your doctor, which they did not do until 26 ^th of November 2014 - 64 days after the capability meeting.

 

Having reviewed the outcome letter from that meeting (dated 8 ^th of October 2014) it is clear that among a number of recommendations Jacqui had proposed:

 

•          You discussed your intention to return to work with your GP before making a final decision.

 

•          If your GP agrees that you are ready to return to work we look forward to welcoming you back and it would be helpful for them to provide us with their recommendations on any adjustments that believe may support your return.

 

•          If there were concerns regarding your health in the future you would agree to a referral to Primark's Occupational Health provider for assessment.

 

•          A return to work date of Monday 24 ^th of October 2014, to give you the opportunity to speak to your doctor and prepare yourself for a return to work, in order to make certain you were comfortable with the recommendations.

 

In essence there was no proposal to refer you to Occupational Health, as it was anticipated that you would be returning to work. However, despite Jacqui writing to you on 8 ^th of October 2014 and again on 21 ^st of October 2014, summarising the points of your recent meeting, you did not return to work as anticipated; nor did you contact Jacqui or provide anything from your doctor in regard to your return to work or your continued absence (your medical certificate having expired).

 

Given that your absence was uncertificated, the standard procedure to follow would not have been an Occupational Health referral, but to invite you to an investigatory meeting to discuss your absence, which Rhonda did on 30 ^th of October 2014.

 

As Brendan Wallace advised in his outcome letter (dated 23 ^rd of July 2015), Elizabeth McCalmont received a call from Councillor [BM] on 3 ^rd of November 2014 advising that you had contacted him as you found correspondence from Primark distressing.

 

As a reasonable adjustment to our standard process, we therefore attempted to find alternative ways to communicate with you, seeking assistance from your GP, USDAW and your previously instructed solicitors, Thompsons. In the interim, I also understand you submitted a medical certificate. It was therefore appropriate for the referral to Occupational Health to be made at this point and understandable that this was not done until 25 ^th of November 2014, given the difficulties encountered in communicating with you.

 

In any event given that you were still unable to provide a return to work date, I am unconvinced that an earlier referral to Occupational Health would have made any difference to Brendan Wallace's decision to dismiss on the grounds of ill health capability.

 

Appeal Point 5:

 

You appeal the decision made to dismiss you.

 

Response to Appeal Point 5:

 

I have read Brendan Wallace's letter of 23 ^rd of July 2015. Before reaching the decision to dismiss you, Brendan scheduled four capability meetings, in which you failed to attend any. In the letter scheduled for your final meeting on 2 ^nd of July 2015, Brendan advised you that should you fail to attend, then a decision will be made in your absence. As you were unable to attend this meeting Brendan therefore invited you to provide any written submissions for consideration.

 

The decision to dismiss you was based on your medical report, your written submission and by reviewing the history of your absence. Not only has every attempt been made to support your return to work, I am satisfied that all relevant information and evidence has been reviewed before deciding to terminate your contract of employment. Ultimately, you have been unable to provide any indication that you are able to return to work and therefore I see no reason to alter Brendan Wallace's decision.

 

Please be assured that I have carefully considered all your appeal points before reaching my conclusion.

 

This concludes your right to appeal with Primark."

 

3. The relevant law - unfair dismissal

 

3.1 Article 126 of the Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order') provides:-

 

"An employee has the right not to be unfairly dismissed by his employer."

 

Article 130 of the 1996 Order provides:-

 

"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair it is for the employer to show -

 

(a) the reason (if more than one the principle) for the dismissal; and

 

(b) that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

(2) The reason falls within this paragraph if it -

 

(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

 

(b) relates to the conduct of the employee,

 

...

 

...

 

(4) Where the employer has fulfilled the requirements of Paragraph (1) the determination of a question whether the dismissal is fair or unfair, (having regard to the reasons shown by the employer) -

 

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably as treating it as a sufficient reason for dismissing the employee; and

 

(c) shall be determined in accordance with equity and the substantive merits of the case.

...

 

(6) Paragraph (4) is subject to Article 130A ... ."

 

Article 130A of the 1996 Order provides:-

 

"(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if -

 

(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;

 

(b) the procedure has not been completed; and

 

(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with these requirements.

 

(2) Subject to Paragraph (1) failure by an employer to follow procedure in relation to the dismissal of an employee shall not be regarded for the purpose of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure."

 

3.2 Substantial changes to the law of unfair dismissal were introduced, following the commencement in April 2005 of the Employment (Northern Ireland) Order 2003 ('the 2003 Order'); and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 ('the 2004 Regulations'). The 2003 Order and the 2004 Regulations introduced, inter alia, statutory procedures to be complied with by an employer relating to matters of discipline and/or dismissal. These provisions came into operation on 3 April 2005. They were not repealed by the Employment Act (Northern Ireland) 2011 and were therefore applicable, insofar as relevant and material to this matter.

 

In essence, the statutory procedures introduced under the said legislation required employers, subject to certain exemptions which were not applicable to this case, to follow a specific procedure when subjecting employees to disciplinary action or dismissal. There are two alternatives, namely:-

 

(a) standard dismissal and disciplinary procedures (DDP);or

 

(b) a modified DDP.

 

There was no dispute that the latter procedure was never applicable in this matter.

 

As set out in the findings of fact by the Tribunal there was no finding that there had been any failing by the first respondent to comply with the said statutory disciplinary/dismissal procedures. In those circumstances, no issue of automatic unfair dismissal, pursuant to Article 130A of the 1996 Order, therefore arose to be determined by the Tribunal in this matter (see further Venniri v Autodex Ltd [UKEAT/0436/07]).]

 

3.3 Article 130A(2) made further changes in the law in relation to unfair dismissal and, in particular, provided in certain circumstances, the partial reversal of the principles set out in the well-known House of Lords decision in the case of Polkey v AE Dayton Services Ltd [1988] ICR 344 ( 'Polkey'). However, Article 130A(2) does not apply in a case where there has been a dismissal in breach of the statutory dismissal procedures, whereby the dismissal is automatically unfair under Article 130A(1). Article 130A(2) of the 1996 Order therefore is only of application where the statutory dismissal procedure has been complied with but there has been a breach of procedures, other than statutory dismissal procedures (see further letter).

 

3.4 In relation to the claimant's claim of 'ordinary' unfair dismissal, pursuant to Article 130(1)(a) of the 1996 Order, there was no dispute by the representatives that the burden was on the respondent to establish the reason relied upon by it. The question of whether it did in fact justify the dismissal requires the Tribunal to consider whether the respondent acted reasonably in all the circumstances in treating the reason as sufficient, pursuant to the provisions of Article 130(4) - (6) of the 1996 Order. (See further Harvey on Industrial Relations and Employment Law, Section D1, Paragraph 8 and Mental NHS Trust v Sarkar [UKEAT/0479/08], where it is established in relation to the issue of fairness, there is no burden of proof on any party.)

 

3.5 In relation to a case where the reason for the dismissal is found to relate to the capability of the employee for performing work of a kind which he was employed by the employer to do, which is a reason within the terms of Article 130(1) and (2) of the 1996 Order, the Tribunal, as set out above, then has to determine whether the dismissal is fair, having regard to the provisions of Article 130(4) - (6) of the 1996 Order, referred to previously. There has been considerable case law in relation to this issue, as set out below. However, much of that case law relates to proceedings where conduct was found to be the reason for the dismissal. Despite this, the principles and guidance set out in the said case law also apply to cases involving capability.

 

Subject to the foregoing and applying the dicta, which originated in the well-known case of British Home Stores Ltd v Burchell [1980] ICR 301, and other subsequent cases, it is necessary for a Tribunal to determine:-

 

"(i) whether the employer had a genuine belief in the guilt of the employee;

 

(ii) whether it had reached that belief on reasonable grounds;

 

(iii) whether this was following a reasonable investigation; and

 

(iv) whether the dismissal of the claimant fell within the range of reasonable responses in light of that misconduct."

 

As seen above, it has long been established that in relation to the matters set out in Article 130(4) there is a 'neutral' burden of proof (see further DSG Retail Ltd v Mackey [2013] UKEAT/0054/13 and Singh v DHL Services [2013] UKEAT/0462/12]).

 

In Sainsburys Supermarkets Ltd v Hitt [2003] IRLR 23, it was made clear the range of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason. Mummery LJ also pointed out in Hitt the reasonableness of the employer's investigation is to be considered by the objective standards of the reasonable employer, having regard to the particular circumstances of the case.

 

In Iceland Frozen Foods Ltd v Jones [1983] ICR 17 - Browne-Wilkinson J offered the following guidance:-

 

" ...

 

(1) the starting point should always be the words of [Section 57(3)] themselves;

 

(2) in applying the Section the industrial Tribunal must consider the reasonableness of the employer's conduct, not simply whether they [the members of the industrial Tribunal] consider the dismissal to be fair;

 

(3) in judging the reasonableness of the employer's conduct an industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

 

(4) in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

 

(5) the function of the industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair : if the dismissal falls outside the band it is unfair."

 

It has long been established in relation to a reasonable investigation the need for an employer to acquaint itself with all relevant facts before taking its decision. As Viscount Dilhourne said in W Devis & Sons Ltd v Atkins [1977] IRLR 314:-

 

"The employer cannot be said to have acted reasonably if he reached his conclusion 'in consequence of ignoring matters which he ought reasonably to have known and which would have shown that the reason was insufficient'."

 

In W Weddel & Company Ltd v Tepper [1989] IRLR 96, it was held that:-

 

" ... [employers] do not have regard to equity or the substantial merits of the case if they jump to conclusions which would have been reasonable to postpone in all the circumstances until they had, in the words of the [employment] Tribunal in this case 'gathered further evidence' or, in the words of Arnold J in the Burchell case, 'carried out as much investigation into the matter as was reasonable in all the circumstances of the case'. That means they must act reasonably in all the circumstances, and must make reasonable enquiries appropriate to the circumstances. If they formed their belief hastily and act hastily upon it, without making the appropriate enquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are certainly not acting reasonably ... ."

 

The above dicta was followed and adopted in this jurisdiction by the Court of Appeal in the cases of Dobbin v Citybus Ltd [2008] NICA 42 and Rogan v South Eastern Health & Social Care Trust [2009] NICA 47 and again, more recently, in the case of Antrim Borough Council v McCann [2013] NICA 7 and Gould v Regency Carpet Manufacturing Ltd [2013] NICA 26. In London Ambulance NHS Trust v Small [2009] IRLR 563, Mummery LJ re-stated the normal rule that a Tribunal is not entitled to substitute its own findings of fact for those of the employer or its investigating or dismissing officer. In the recent decision of McCann, Girvan LJ, in considering the issue of the band of reasonable responses which a reasonable employer must have adopted, expressly referred to the dicta of Longmore LJ in Bowater v Northwest London Hospitals NHS Trust [2011] EWCA Civ 63, when he stated:-

 

"The employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the Tribunal to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer."

 

As Underhill LJ emphasised in Stuart v London City Airport Ltd [2013] EWCA Civ 973 the employer must carry out a sufficient investigation - "that is, such an investigation as fairness required in the circumstances of the case" before reaching its conclusion it had reasonable grounds for its belief, as seen in the Burchell test. He acknowledged that different Tribunals could reach different conclusions about the minimum level of investigation by the employer which fairness required in the circumstances but also:-

 

 

" ... two Tribunals both conscientiously considering 'the range of reasonable responses' ... and trying to avoid illegitimate 'substitution', may nevertheless reach different conclusions as to where the limits of the range lie and thus substitution of its own view becomes legitimate ... ."

 

3.6 In a recent decision in the Court of Appeal in Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, when deciding whether the employer acted reasonably in dismissing the employee, held:-

 

"It is not for ET to conduct a primary fact-finding exercise. It is there to review the employer's decision. Still less is the ET there to conduct an investigation into the whole of the employee's employment history ... ." (Paragraph 33 of the judgment)

 

Further, in Turner v East Midlands Trains [2012] EWCA Civ 1470, Sir Stephen Sedley at Paragraph 71 of the judgement emphasised:-

 

"For a good many years it has been a source of distress to unfair dismissal claimants that, with rare exceptions, they cannot recanvass the merits of their case before an employment Tribunal. In spite of the requirement in Section 98(4)(b) that the fairness of a dismissal is to be determined in accordance with equity and the substantial merits of the case, a Tribunal which was once regarded as an industrial jury is today a forum of review, albeit not bound to the Wednesbury mast. Other claims - for example discrimination claims - based on the same or related facts, do attract a full merits hearing. But in relation to unfair dismissal the law is unequivocally what Lord Justice Elias has set out in Paragraphs 16 to 22 above. "

 

In those paragraphs of his judgment, referred to by Sir Stephen Sedley, Lord Justice Elias referred, with approval, to the summary of the relevant principles contained in the judgment of Aikens LJ in the case of Orr v Milton Keynes Council [2011] ICR 704, when he stated as regards to the fairness test in Section 98(4) [Article 130(4) of the 1996 Order] as follows ( Paragraph 78):-

 

" ...

 

(4) In applying that sub-section, the employment Tribunal must decide on the reasonableness of the employer's decision to dismiss for the 'real reason'. That involves a consideration, at least in misconduct cases, of three aspects of the employer's conduct. First, did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case; secondly, did the employer believe that the employee was guilty of the misconduct complained or; and thirdly, did the employer have reasonable grounds for that belief. If the answer to each of those questions is 'yes', the employment Tribunal must then decide on the reasonableness of the response by the employer.

 

(5) In doing the exercise set out at (4), the employment Tribunal must consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to its own subjective views, whether the employer has acted within a 'band or range of reasonable responses' to the particular misconduct found on the particular employee. If it has, then the employer's decision to dismiss will be reasonable. But that is not the same thing as saying that a decision of an employer to dismiss will only be regarded as reasonable if it is shown to be perverse.

 

(6) The employment Tribunal must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer. The Tribunal must determine whether the decision of the employer to dismiss the employee fell within the band of reasonable responses which 'a reasonable' employer might have adopted.

 

(7) The particular application of (5) and (6) is that an employment Tribunal may not substitute their own evaluation of a witness for that of the employer at the time of its investigation and dismissal, save in the exceptional circumstances.

 

(8) An employment Tribunal must focus their attention on the fairness of the conduct of the employer at the time of the investigation and dismissal (or any appeal process) and not on whether in fact the employee has suffered an injustice."

 

Further, Lord Justice Elias emphasised 'the band of reasonable responses test' is not a subjective test and it is erroneous so to describe it - "it provides an objective assessment of the employer's behaviour whilst reminding the employment Tribunal that the fact that it would have assessed the case before it differently from the employer does not necessarily mean that the employer has acted unfairly".

 

Elias LJ also at Paragraphs 20 - 22 of his judgment observed:-

 

"(20) When determining whether an employer has acted as the hypothetical reasonable employer would do, it would be relevant to have regard to the nature and consequences of the allegations. These are part of all the circumstances of the case. So if the impact of a dismissal for misconduct will damage the employee's opportunity to take up further employment in the same field, or if the dismissal involves an allegation of immoral or criminal conduct which will harm the reputation of the employee, then a reasonable employer should have regard to the gravity of those consequences when determining the nature and scope of the appropriate investigation.

 

(21) In A v B [2003] IRLR 405, Paragraph 60, when giving the judgment in the EAT in a case involving alleged criminal behaviour by the employee, I said this:-

 

'Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiries should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.'

 

This dictum was approved by the Court of Appeal in Salford Royal NHS Foundation Trust v Roldan [2010] ICR 1457, Paragraph 13.

 

(22) The test applied in A v B and Roldan is still whether a reasonable employer could have acted as the employer did. However more will be expected of a reasonable employer where the allegations of misconduct, and the consequences to the employee if they are proven, are particularly serious."

 

(See also Crawford v Suffolk Mental Health NHS Partnership Trust [2012] IRLR 402).

 

In a decision of the Employment Appeal Tribunal, in the case of Mitchell v St Joseph's School [2013] UKEAT/0506/12, after referring to the above dicta in Davies and Turner, HH Judge McMullan QC, at Paragraph 30 of his judgment, concluded that:-

 

"The point is that the duty of the employment Tribunal is to review the decision-making of the employer on the material that was available or ought to have been available following the completion, in a conduct case, of the stages in Burchell [1978] IRLR 379, then to stand back and decide if the dismissal fell within the band of responses of a reasonable employer."

 

3.7 Incapacity arising from ill-health can provide grounds for the dismissal of an employee either because of a single extended absence or because of persistent intermittent absences. In either case, depending on the circumstances there may come a point where the employer can dismiss fairly.

 

In determining whether a dismissal on grounds of ill health is fair, in the case of Spencer v Paragon Wallpapers Ltd [1976] IRLR 373, Philips J emphasised the importance of scrutinising all the relevant factors, stating 'every case depends on its own circumstances. The basic question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer?' He pointed out that the relevant circumstances can include 'the nature of the illness, the likely length of the continuing absence, the need of the employers to have done the work which the employee was engaged to do'. This guidance has been recently approved and followed by the Court of Appeal in O'Brien v Bolton St Catherine's Academy [2017] EWCA Civ 145.

 

In Spencer, it was held that, in cases of ill-health, although an employee ought not to be dismissed without some prior communication between him and the employer, a 'warning' is not appropriate. By its association with cases of misconduct, 'warning' carries with a suggestion that the employees is being required to change or improve its conduct. That is not the case where the absence is due to ill-health and in some cases, some damage can be done by a written warning unaccompanied by a more personal touch. Usually what is required is a discussion of the position between the employer and employee so the situation can be weighed up bearing in mind the employer's need for work to be done and the employee's need for time to recover his health. In the subsequent case in East Lindsey District Council v Daubney [1977] IRLR 181, the Employment Appeal Tribunal held that 'unless there are wholly exceptional circumstances, before a employee is dismissed on grounds of ill-health, it is necessary that he should be consulted and the matter discussed with him and that in one way or another, steps should be taken by the employer to discover the true medical position. Discussions in consultation will often bring to light facts and circumstances of which the employers were unaware and which will throw new light on the problem. Or the employee may wish to seek medical advice on its own account which, brought to the notice of the employer's medical adviser, will cause them to change their opinion. If the employee is not consulted or given an opportunity to state his case, then justice may be done. Although the steps the employer should take may vary, if in every case the employers take such steps as are sensible according to the circumstances, to consult the employee and to discuss the matter with him, and to inform themselves upon the true medical position, it will be found in practice that all is necessary has been done. Only in the rarest possible circumstances can a failure to consult be justified on the grounds of discussion and consultation would have been fruitless'.

 

3.8 In cases of uncertainty about the medical position, before any decision is taken, the employer should request the employee to submit to a medical examination before reaching its decision or sometimes that may be an examination by a specialist (see further Crampton v Dacorum Motors Ltd [1976] IRLR 168.

 

3.9 In deciding whether an employer acted fairly in dismissing an employee on grounds of ill-health, the Employment Tribunal must determine, as a matter of fact and judgment, what consultation, if any, was necessary or desirable in all the circumstances of particular case; what consultation, if any, in fact took place; and whether or not that consultation process was adequate in all the circumstances (see further A Links & Co Ltd v Rose [1991] IRLR 353.)

 

In the case of BS v Dundee City Council [2014] IRLR 131, it was held that there was a distinction to be made when taking into account long service for the purpose of an ill-health dismissal as compared with a dismissal for misconduct. While long service will often be relevant to a misconduct case as indicating that what the employee has done can be treated as a temporary aberration, the critical question in an ill-health case is whether the length of the employee's service, the manner in which he worked during that period, yields inferences that indicate that the employee is likely to return to work as soon as he can.

 

3.10 Procedural defects in the initial disciplinary hearing may be remedied on appeal, provided that in all the circumstances the later stages of the procedure are sufficient to cure any earlier unfairness. As the Court of Appeal held in Taylor v OCS Group Ltd [2006] EWCA Civ 702:-

 

"If an early stage of a disciplinary process is defective and unfair in some way then it does not matter whether or not an internal appeal is technically a re-hearing or review, only whether the disciplinary process as a whole is fair. After identifying a defect a Tribunal will want to examine any subsequent proceedings with particular care. Their purpose in so doing will be to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at an early stage."

 

In a recent decision, the Employment Appeal Tribunal, in the case of Holt v Res On Cite Ltd [2014] UKEAT/0410 emphasised that the Tribunal's role is to consider the fairness of the processes as a whole, and an appeal should not be seen separately but should be seen as part of the entire disciplinary process (see further First Hampshire & Dorset Ltd v Parhar [2012] UKEAT/0643]).

 

In McMaster v Antrim BC [2010] NICA 45, Coghlin LJ emphasised:-

 

The fundamental purpose served by an agreed appeal disciplinary procedure is to ensure that both sides have a full and fair opportunity to put their respective cases and secure a just outcome to any dispute, including putting right, where necessary, any errors or shortcomings apparent in the initial hearing. As a matter of principle it is difficult to accept that the effective operation of an appeal could be simply prevented by an employer either refusing the employee the right to such an appeal procedure or by rejecting an outcome considered to be advise to his or her interest leaving the frustrated employee with compensation for breach of contract as his or her only remedy."

 

See further West Midlands Co-Operative Society Ltd v Tipton [1986] AC 536) In London Probation Board v Kirkpatrick [2005] ICR 965, approved by Coghlin LJ, in McMaster, HH Judge McMullan QC made clear:-

 

... the whole point of internal appeals is to allow for bad or unfair decisions to be put right."

 

3.11 In determining whether or not dismissal is a fair sanction, it is not for the Tribunal to substitute its own view of the appropriate penalty for that of the employer. As stated by Philips J in Trust Houses Forte Leisure Ltd v Aquilar [1976] IRLR 251:-

 

"It has to be recognised that when the management is confronted with a decision to dismiss an employee in particular circumstances there may be cases where reasonable managements might take either of two decisions : to dismiss or not to dismiss. It does not necessarily mean if they decide to dismiss that they have acted unfairly because there are plenty of situations in which more than one view is possible."

 

3.12 In the well-known House of Lords decision in Polkey v AE Dayton Services Ltd [1988] ICR 344 it was held that, in essence, an employer who had acted unreasonably and in breach of procedures could not contend that, since the dismissal would have occurred anyway, even if proper procedures had been followed, the dismissal should be found to be a fair dismissal. Indeed, it is only in limited circumstances that an employer would be able to successfully argue that compliance with fair procedures would be futile.

 

However, although the Tribunal might find that dismissal was unfair, a Tribunal, following Polkey, was able to reduce the employee's compensation by a percentage to represent the chance the employee would have still been dismissed. A Polkey reduction therefore required an employer to satisfy the Tribunal it would have dismissed the employee, even if it had complied with fair procedures.

 

3.13 Article 130A(2), as set out previously, made a further change to the law of unfair dismissal and resulted, in certain circumstances, in a partial reversal of the principles set out in Polkey, as indicated above.

 

Article 130A(2) provides that a dismissal, following a failure to follow other procedural steps, will not affect the fairness of the dismissal, provided the employer can show the employee still would have been dismissed, if he had followed the steps correctly. The Polkey decision was partially reversed and the ' no difference rule', which had applied before Polkey, was reinstated for a failure to follow procedures, other than the new statutory dismissal and disciplinary procedures. The reference to procedures in Article 130A(2) was the subject of some conflicting decisions in the Employment Appeal Tribunal, but the generally accepted view would seem now to be that it applies to any procedure, written or otherwise, which the Tribunal considers a reasonable employer might follow (see Kelly-Madden v Manor Surgery [2007] IRLR 17).

 

3.14 However, what is clear, from the legal authorities, is that Article 130A(2) is only of assistance to an employer, whenever the DDP has been complied with. Automatic unfairness cannot be cured by invoking Article 130A(2) ( Butt v CAFCSS [UKEAT/0362/07]). As was made clear in the case of Goodin v Toshiba [UKEAT/0271/08], there can be a Polkey reduction of up to 100% in an automatic unfair dismissal case, where the breaches of procedure would have made no difference to the dismissal. If the employer has complied with the DDP (but the dismissal is nevertheless unfair for other reasons), but there is a greater than 50% chance that the employer would have dismissed the employee, pursuant to Article 130A(2), the dismissal will be fair. Thus, where the relevant DDP has been complied with but the dismissal is procedurally unfair for the ordinary purposes of Article 130(4) of the 1996 Order, any Polkey deduction cannot exceed 50%.

 

3.15 In Software 2000 Ltd v Andrews [2007] UKEAT/0533/06, Elias J, as he then was, emphasised that Tribunals must consider any reliable evidence, even if speculative, in carrying out the exercise to determine whether or not dismissal would have occurred if a fair procedure had been followed. Using its common sense experience and sense of justice in the normal case, the Tribunal would require to assess for how long the employee would have been employed but for the dismissal. However, it is for the employer who seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, to adduce any relevant evidence on which it wishes to rely; but in doing so, the Tribunal must have regard to all the evidence from making the assessment, including any evidence from the employee itself.

 

As Elias J stated in his judgment:-

 

"The mere fact an element of speculation was involved was not a reason for the Tribunal refusing to have regard to the evidence."

 

In considering issues relating to Polkey deductions in the case of Hill Ltd v Governing Body of Great Tey Primary School, Langstaff P said the correct test is 'predictive' - 'could the employer fairly have dismissed and what were the chances that the employer would have done so'. In a recent decision, in the case of Dev v Lloyds TSB Asset Finance Division Ltd [2014] UKEAT/0281, Langstaff P confirmed the above approach:-

 

"6. A Tribunal asked to consider a Polkey question must not ask what would have happened but rather what might have happened. To ask what would have happened asks for a decision, effectively, on the balance of probability, with a straight yes or no answer. The second looks at the matter as one of assessment of chances. It is well established that the latter is the correct approach ... (see further Ministry of Justice v Parry [2013] ICR 311 ...)."

 

In Brinks Ireland Ltd v Hines [2013] NICA 32, Girvan LJ followed, with approval, Software 2000 Ltd v Andrews and stated:-

 

" ... If an employer seeks to contend that the employee would or might have ceased to be employed in any event if a fair procedure had been followed or alternatively it would not have continued in employment indefinitely it is for the employer to adduce relevant evidence on which it wishes to rely. Where the nature of the evidence which the employer adduces or on which it seeks to rely is unreliable, the Tribunal may take the view that the whole exercise of seeking to re-construct what might have been is so riddled with uncertainty that no sensible prediction based on the evidence can be made ... ."

 

4. The relevant law - discrimination

 

4.1 The Sex Discrimination (Northern Ireland) Order 1976 ('the 1976 Order') provides:-

 

Article 3 of the 1976 Order:-

 

"(2) In any circumstances relevant for the purposes of any provision of this Order ... a person discriminates against a woman if -

 

(a) on the ground of her sex, he treats her less favourably than he treats or would treat a man."

 

Article 8 of the 1976 Order:-

 

" ...

 

(2) It is unlawful for a person, in the case of a woman employed by him at an establishment in Northern Ireland, to discrimination against her -

 

(a) in the way he affords her access to opportunities for promotion, transfer or training or to any other benefits, facilities or services, or by refusing or deliberately omitting to afford her access to them, or

 

(b) by dismissing her, or subjecting her to any other detriment."

 

Article 63A of the 1976 Order (Burden of proof):-

 

"(1) This Article applies to any complaint presented under Article 63 to an industrial Tribunal.

 

(2) Where, on the hearing of the complaint, the complainant proves facts from which the Tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent -

 

(a) has committed an act of discrimination ... against the complainant which is unlawful by virtue of Part III, or

 

(b) is by virtue of Article 42 or 43 is to be treated as having committed such an act of discrimination ... against the complainant,

 

the Tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed that act."

 

Article 42 of the 1976 Order:-

 

"(1) Anything done by a person in the course of his employment shall be treated for the purposes of this Order as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval.

 

(2) Anything done by a person as agent for another person with the authority (whether expressed or implied, and whether precedent or subsequent) of that person shall be treated for the purpose of this Order as done by that other person as well as by him.

 

(3) Proceedings brought under this Order against any person in respect of an act alleged to have been done by an employee of his it shall be a defence for that person to prove that he took such steps as were reasonably practicable to prevent the employee from doing that act, or from doing in the course of his employment Acts of that description."

 

Article 43 of the 1976 Order:-

 

"(1) A person who knowingly aids another person to do an act made unlawful by this Order shall be treated for the purpose of this Order as himself doing an unlawful act of the like description."

 

4.2 The Fair Employment and Treatment (Northern Ireland) Order 1998 ('the 1998 Order') provides:-

 

Article 3 of the 1998 Order:-

 

"(1) In this Order 'discrimination' means -

 

(a) discrimination on the ground of religious belief ... and 'discriminate' shall be construed according.

 

(2A) A person also discriminates against other person on the ground of religious belief ... in any circumstances relevant for the purpose of any provision referred to in paragraph (2B) if -

 

(a) on either of those grounds he treats that other less favourably than he treats or would treat other persons.

 

(2B) The provisions mentioned in paragraph (2A) are -

 

(a) Part III."

 

Article 19 of the 1998 Order:-

 

"(1) Unlawful for an employer to discriminate against a person in relation to employment in Northern Ireland -

 

(a) ...

 

(b) where that person is employment by him -

 

(i) in the terms of employment which he affords him; or

 

(ii) in the way he affords him access to benefits or by refusing or deliberately omitting to afford him access to them; or

 

(iii) by dismissing him or by subjecting him to any other detriment."

 

Article 38A, 35 and 36 of the 1998 Order are in similar terms to Articles 63A, 42 and 43 of the 1976 Order and it is not therefore necessary to set them out.

 

4.3 The Disability Discrimination Act 1995 ('the 1995 Act') provides:-

 

"(1) Subject to the provisions of Schedule 1, a person has a disability for the purpose of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

 

(2) In this Act 'disabled person' means a person who has a disability.

 

(3) Guidance

 

A1 The Secretary of State may issue guidance about matters to be taken into account in determining whether a person is a disabled person.

 

(1) Without prejudice to the generality of sub-section A(1) the Secretary of State may, in particular, issue guidance about the matters to be taken into account in determining -

 

(a) whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities; or

 

(b) whether such an impairment has a long-term effect."

 

Article 3A of the 1995 Act:-

 

"(1) For the purposes of this Part a person discriminates against a disabled person if -

 

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and

 

(b) he cannot show that the treatment in question is justified.

 

(2) For the purpose of this Part a person also discriminates against a disabled person if he fails to comply with the duty to make reasonable adjustments imposed on him in relation to the disabled person.

 

(3) Treatment is justified for the purposes of sub-section (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

 

(4) The treatment of a disabled person cannot be justified under sub-section (3) if it amounts to direct discrimination falling with sub-section (5).

 

(5) A person directly discriminates against a disabled person if, on the grounds of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances including his abilities are the same as, or not materially different from, those of the disabled person.

 

(6) If, in a case falling within sub-section (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that cannot be justified under sub-section (3) unless it would have been justified even if he had complied with that duty.

 

Section 4 of the 1995 Act:-

 

" ...

 

(2) It is unlawful for an employer to discriminate against a disabled person whom he employs -

 

(a) in the terms of employment which he affords him;

 

(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefits;

 

(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or

 

(d) by dismissing him or subjecting him to any other detriment.

 

... ."

 

Section 4A of the 1995 Act:-

 

"(1) Where -

 

(a) a provision, criterion or practice applied by or on behalf of an employer, or

 

(b) any physical feature or premises occupied by the employer,

 

 

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to provision, criterion or practice, or feature, having that effect.

 

(2) In sub-section (1) 'the disabled person concerned' means -

 

...

 

(b) in any other case, a disabled person who is -

 

...

 

(ii) an employee of the employer concerned;

 

(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know -

 

...

 

(b) in any case, that person has a disability and is likely to be affected in the way mentioned in sub-section (1)."

 

Section 18B of the 1995 Act:-

 

"(1) In determining whether it is reasonable for a person to take a particular step in order to comply with the duty to make reasonable adjustments, regard should be had, and in particular, to -

 

(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

 

(b) the extent to which it is practicable to take the step;

 

(c) the financial and other cost which will be incurred by him taking the step and the extent to which taking it would disrupt any of his activities;

 

(d) the extent of his financial and other resources;

 

(e) the availability to him of financial or other assistance with the respect of taking step;

 

(f) the nature of his activities and size of his undertaking;

 

(g) ...

 

(2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with duty to make reasonable adjustments -

 

(a) making adjustments to premises;

 

(b) allocating some of the disabled person's duties to another person;

 

(c) transferring him to fill an existing vacancy;

 

(d) ordering his hours of working or training;

 

(e) assigning him to a different place of work or training;

 

(f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;

 

(g) giving, arranging for, training or mentoring (whether for the disabled person or any other person);

 

(h) acquiring or modifying equipment;

 

(i) modifying instructions or reference manuals;

 

(j) modifying procedures for testing or assessment;

 

(k) providing a reader or interpreter;

 

(l) providing supervision or other support."

 

 

Section 1 of the 1995 Act:-

 

"2(1) The effect of an impairment is a long-term effect if -

 

(a) it has lasted at least 12 months;

 

(b) the period for which it lasts is likely to be at least 12 months; or

 

(c) it is likely to last for the rest of the life of the person affected.

 

2 Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

 

...

 

4(1) An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following -

 

(a) mobility;

 

(b) manual dexterity;

 

(c) physical co-ordination;

 

(d) continence;

 

(e) ability to lift, carry or otherwise move everyday objects;

 

(f) speech, hearing or eyesight;

 

(g) memory or ability to concentrate, learn to understand; or

 

(h) perception of the risk of physical danger.

 

6(1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact the measures have been taken to treat or correct it, is to be treated as having that effect.

 

(2) In sub-paragraph (1) 'measures' include, in particular, medical treatment ... ."

 

(In SCA Packaging Ltd v Boyle [2009] IRLR 746 the House of Lords held the word likely in Paragraph 6(i) is used in the sense of 'could well happen', rather than whether it is more probable then not. It further held that where it applies, the individual's actual situation with the benefit of the course of treatment and be ignored and she must be considered as if she was not having the treatment and the impairment was completely unchecked.)

 

Section 57 and 58 are in similar terms to Articles 42 and 43 of the 1976 Order.

 

Section 17A of the 1995 Act (Burden of proof):-

 

"1(C) Where, in the hearing of a complaint under sub-section (1), the complainant proves facts on which the Tribunal could, apart from this sub-section, conclude in the absence of an adequate explanation that the respondent is acting in a way which is unlawful under this Part, the Tribunal shall uphold the complaint unless the respondent proves that he did not so act."

 

4.4 In relation to the burden of proof provisions set out in the 1976 Order, the 1998 Order and the 1995 Act, referred to previously, the English Court of Appeal in the case of Igen v Wong [2005] IRLR 258, considered similar provisions, relating to sex discrimination, applicable under the legislation applying in Great Britain and, it approved, with minor amendment, the guidelines set out in the earlier decision of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. In a number of decisions, the Northern Ireland Court of Appeal has approved the decision of Igen v Wong [2005] IRLR 258 and the said two-stage process to be used in relation to the burden of proof (see further Brigid  McDonagh & Others v Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA 1 and other decisions referred to below.) The decision in Igen v Wong [2005] IRLR 258 has been the subject of a number of further decisions in Great Britain, including Madarassy v Nomura International PLc [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing v Manchester City Council [2006[ IRLR 748, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive & Another [2007] NICA 25. (See further the recent Supreme Court decision in the case of Hewage v Grampian Health Board [2012] UKSC 37, in which the Supreme Court approved the guidance in Igen and followed in subsequent case law, such as Madarassy [see below].), and where it did not consider any further guidance was necessary. It also emphasised it was not necessary to make too much of the role of the burden of proof provisions; they required careful attention where there was room for debate as to the facts necessary to establish discrimination but they had nothing to offer where the Tribunal was in a position to make positive findings on the evidence one way or the other.

 

In Madarassy v Nomura International PLC [2007] IRLR 246 the Court of Appeal held, inter alia, that:-

 

"The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more [Tribunal's emphasis], sufficient material from which a Tribunal could conclude that on the balance of probabilities the respondent had committed an unlawful act of discrimination - could conclude in Section 63A(2) must mean that 'a reasonable Tribunal could properly conclude from all the evidence before it. This would include evidence adduced by the claimant in support of the allegation of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject to the statutory absence of an adequate explanation at this stage the Tribunal needs to consider all the evidence relevant to the discrimination complaint, such as evidence to whether the act complained of occurred at all, evidence as to the actual comparators relied upon by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the claimant were of like with like as required by Section 5(3) and available evidence for the reasons for the differential treatment. The correct legal position was made plain by the guidance in Igen v Wong. Although Section 63A(2) involves a two-stage analysis of the evidence, it does not expressly or impliedly prevent the Tribunal at the first stage, from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing or rebutting the claimant's evidence of discrimination ... ."

 

In Igen the Court of Appeal cautioned Tribunals, at Paragraph 51 of the judgment, ' against too readily inferring unlawful discrimination on a prohibited ground merely from unreasonable conduct where there is no evidence of other discriminatory behaviour on such ground'.

 

Even if the Tribunal considers that the conduct of the employer requires some explanation before the burden of proof can shift there must be something to suggest that the treatment was less favourable and by reason of the protected characteristic (eg disability) (see B and C v A [2010] IRLR 400 and Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8 later in this decision).

 

4.5 In relation to what is to be included by the expression 'something more' - guidance is to be found in the judgment of Elias J in The Law Society v Bahl [2003] IRLR 640, which judgment was approved by the Court of Appeal (see [2004] IRLR 799).

 

In Paragraph 94 of his judgment, Elias J emphasised that unreasonable treatment is not of itself a reason for drawing an inference of unlawful discrimination when he stated:-

 

"94. It is however a wholly unacceptable leap to conclude that whenever the victim of such conduct is black or a woman that it is legitimate to infer that our unreasonable treatment was because the person was black or a woman. All unlawful discriminatory treatment is unreasonable, but not all unreasonable discriminatory treatment is discriminatory, and it is not shown to be so merely because the victim is either a woman or of a minority race or colour. In order to establish unlawful discrimination it is necessary to show that the particular employer's reason for acting was one of the proscribed grounds. Simply to say that the conduct was unreasonable tells us nothing about the grounds for acting in that way. The fact that the victim is black or a woman does no more than raise the possibility that the employer could have been influenced by unlawful discriminatory consideration. Absent some independent evidence supporting the conclusion that this was indeed the reason, no finding of discrimination can possibly be made.

 

96. ... Nor in our view can Sedley LJ (in Anya v University of Oxford) be taken to be saying that the employer can only establish a proper explanation if he shows that he in fact behaves equally badly to members of all minority groups. The fact that he does so will be one way of rebutting an inference of unlawful discrimination, even if there are pointers which would otherwise justify that inference. ... No doubt the mere assertion by an employer that he would treat others in the same manifestly unreasonable way, but with no evidence that he had in fact done so, would not carry any weight with a Tribunal which is minded to draw the inference on proper and sufficient grounds that the cause of the treatment has been an act of unlawful discrimination."

 

In particular, in Paragraph 101 of Elias J's judgment explained that unreasonable conduct is not necessarily irrelevant and may provide a basis for rejecting an explanation given by the alleged discriminator but then added these words of caution:-

 

"The significance of the fact that the treatment is unreasonable is that a Tribunal will more readily in practice reject the explanation, given that it would if the treatment were reasonable. In short, it goes to credibility. If the Tribunal does not accept the reason given by the alleged discriminator, it may be open to it to infer discrimination. But it will depend upon why it has rejected the reason he has given, and whether the primary facts it finds provide another and cogent explanation for the conduct. Persons who have not discriminated on the proscribed grounds may nonetheless give a false reason for the behaviour. They may rightly consider, for example, that the true reason costs then in a less favourable light, perhaps because it discloses incompetence or insensitivity. If the findings of the Tribunal suggest there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support finding of unlawful discrimination itself."

 

At Paragraph 113 of his judgment, he also stated:-

 

"There is an obligation on the Tribunal to ensure that it has taken into consideration all potentially relevant non-discriminatory factors which might realistically explain the conduct of the alleged discriminator ... ."

 

At Paragraph 220 he confirmed:-

 

"An inadequate or unjustified explanation does not of itself [Tribunal's emphasis] amount to a discriminatory one."

 

In the recent decision in the case of The Solicitors Regulation Authority v Mitchell [2014] UKEAT/0497/12, this guidance was summarised in the following way ( Paragraph 46):-

 

"(i) In appropriate circumstances the 'something more' can be an explanation proffered by the respondent for the less favourable treatment that is rejected by the Employment Tribunal.

 

(ii) If the respondent puts forward a false reason for the treatment but the Employment Tribunal is able on the facts to find another non-discriminatory reason, it cannot make a finding of discrimination."

 

Determining when the burden of proof is reversed can be difficult and controversial as illustrated in the following decisions. In Maksymiuk v Bar Roma Partnership [UKEATS/0017/12], when Langstaff P at Paragraph 28 said:-

 

"The guidance in Igen v Wong has been carefully refined. It is an important template for decision-making. As Laing and Madarassy have pointed out however, a Tribunal is not required to force the facts into a constrained cordon where in the circumstances of the particular case they do not fit it. That would not to be apply the words of the statute appropriately. Intelligent application of the guidance, rather than slavish obedience where it would require contorted logic, is what is required."

 

Further, in Birmingham City Council v Millwood [2012] UKEAT/0564, Langstaff P stated:-

 

"26 What is more problematic is the situation where there is an explanation that is not necessarily found to be a lie but which is rejected as opposed to one that is simply not regarded as sufficiently adequate.

 

Realistically, it seems to us that, in any case in which an employer justifies treatment that has a detrimental effect as between a person of one race and a person or persons of another by putting forward a number of inconsistent explanations which are disbelieved (as opposed to not being fully accepted) there is sufficient to justify a shift of the burden of proof. Exactly that evidential position would have arisen in the days in which King v Great Britain - China Centre [1992] ICR 516 was the leading authority in relation to the approach should take to claims of discrimination. Although a Tribunal must by statute ignore whether there is any adequate explanation in stage one of its logical analysis of the facts, that does not mean, in our view, to say that it can and should ignore an explanation that is frankly inadequate and in particular are that is disbelieved.

27 ... to prefer one conclusion rather than another is not, as it seems to us, the same as rejecting a reason put as being simply wrong. In essence, the Tribunal in the present case appeared not to believe at least two of the explanations that were being advanced to it, and there were, we accept from what Mr Swanson has said, some three inconsistent explanations put forward for the difference in treatment that constituted the alleged discriminatory conduct."

 

On the facts of the case, in the Solicitors Regulation Authority case, it was found that a false explanation for the treatment was given by the respondent's witness, which was found to lack credibility and could therefore constitute the 'something more'; and the Tribunal, having reversed the burden of proof, in the circumstances, was able to properly infer discrimination:-

 

"The Tribunal asked the reason why the claimant had been treated as she was. It was not simply a question of the respondent putting forward no explanation but having given a false explanation. This was clearly capable of being 'something more' ... ."

 

This issue again arose in a further recent decision by the Employment Appeal Tribunal in the case of Veolia Environmental Services UK v Gumbs [UKEAT/0487/12] where the EAT recognised Igen, Madarassy and Hewage:-

 

"all exhibit the same tension; how to recognise the difficulty of proving discrimination on the one hand, whilst at the same time not stigmatising as racially discriminatory conduct which is simply irrational or unreasonable, on the other ... ."

 

In Effa v Alexandra Health Care NHS Trust [1999] (Unreported) Mummery LJ held:-

 

"It is common ground that an error of law is made by a Tribunal if it finds less favourable treatment from which it can properly make such an inference ... . In the absence of direct evidence on an issue of less favourable treatment on racial grounds, the Tribunal may make inferences from other facts which are undisputed or are established by evidence. However, in the absence of adequate material from which inferences can be properly made, a Tribunal is not entitled to find a claim proved by making unsupported legal or factual assumptions about disputed questions of less favourable treatment on racial grounds. This is so whether the discrimination is alleged to rise from conscious or subconscious influences operating in the mind of the alleged discriminator."

 

Further, as seen in R (on the application of E) v Governing Body of JFS and Others [2010] IRLR 136, Lady Hale ( Paragraphs 62 - 64) emphasised that, in all but the most obvious cases involving direct discrimination, a Tribunal requires to consider the mental processes, whether conscious or subconscious, of the alleged discriminator.

 

It held, as set out in the head note of the judgment, it did not accept that Madarassy and Hewage supported the submission that an employer should not have the burden of proof reversed and be required to give a non-discriminatory explanation for its conduct in demoting an employee or denying the employee an opportunity to qualify to do different work where inconsistent explanations for the reason for the demotion had been given and an unacceptable account of knowledge of the ambition to qualify had been given. Whilst the substance of the explanation should be excluded from consideration when deciding whether the burden of proof should be reversed the fact that explanations had been given which were inconsistent could be taken into account. When an account of lack of knowledge as to the employee's ambition to qualify for different work had been contradicted by other evidence that was a factor to be considered in deciding whether the burden of proof had shifted.

 

4.6 In the case of Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8, the Northern Ireland Court of Appeal approved the judgement of Elias LJ in Laing, which was also referred to with approval by Campbell LJ in the Arthur case, that it was not obligatory for a Tribunal to go through the steps set out in Igen in each case; and also referred to the opinion of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] NI 147, where he observed at paragraph 8 of his opinion, as follows:-

 

"Sometimes a less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue".

 

Lord Nicholl's opinion in the Shamoon case made clear the normal two step approach of Tribunals in considering, firstly, whether the claimant received less favourable treatment than the appropriate comparator, which can include an actual or hypothetical comparator, and then, secondly whether the less favourable treatment was on the proscribed ground, can often be avoided by concentrating on why the claimant was treated as he/she was; and was it for the proscribed reason or for some other reason. If the latter, the application fails. If the former, there would normally be no difficulty in deciding whether the less favourable treatment, afforded to the claimant on the proscribed ground was less favourable than was or would have been afforded to others (see further Paragraph 11 of Lord Nicholls' opinion). Indeed, Lord Nicholls' opinion emphasised that the question whether there had been less favourable treatment and whether the treatment was on the grounds of [sex] are in fact two sides of the same coin.

 

4.7 In Nelson v Newry and Mourne District Council [2009] NICA 24, Girvan LJ referred approvingly to the decisions in Madarassy and Laing and also held that the words 'could conclude' are not to be read as equivalent to 'might possibly conclude'. He said " the facts must lead to the inference of discrimination". He also stated:-

 

"24. This approach makes clear that the complainants allegation of unlawful discrimination cannot be used in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could probably conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable the Police Service of Northern Ireland and Another [2009] NICA 8, Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that claim put forward is an allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The Tribunal's approach must be informed by the need to stand back and focus on the issue of discrimination."

 

4.8 Coghlin LJ, in the case of Curley, also referred to the well known dicta of Carswell LCJ, as he then was, in the Sergeant A case, which also emphasised the necessity for the Tribunal to look at the matter, in the light of all the facts as found:-

 

"3. Discrepancies in evidence, weaknesses and procedures, poor record keeping, failure to follow established administrative processes or a satisfactory explanation from an employer may all constitute material from which an influence of religious discrimination may legitimately be drawn. But Tribunals should be on their guard against the tendency to assume that every such matter points towards a conclusion of religious discrimination, especially where other evidence shows such a conclusion is improbable on the facts."

 

Although, both the Curley and Sergeant A cases were dealing with issues of religious discrimination, the dicta is also relevant, in the judgment of the Tribunal, to determination of claims of sex discrimination and/or religious discrimination and the interpretation of the relevant provisions relating to the burden of proof provisions, in the case law, referred to above, from the Employment Appeal Tribunal and the Court of Appeal of England and Wales .

 

4.9 The now classic test for discrimination was contained in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 and later summarised by Lord Hoffman in Watt (Carter) v Ahman [2008] 1AC at Paragraph 36, as follows:-

 

"(1) The test for discrimination involves a comparison between the treatment of the complainant and another person ('the statutory comparator') actual or hypothetical, who is not of the same sex or racial group as the case may be.

 

(2) The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in each case should be (or assumed to be) the same as, or not materially different from, those of the complainant.

 

(3) The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a Tribunal may infer how a hypothetical comparator would have been treated ... This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question ('the evidential comparator') to those of the complainant and all the other evidence in the case."

 

4.10 Having regard to a claim, pursuant to Section 3A(1) of the 1995 Act (disability-related discrimination) following the decision of the House of Lords in London Borough of Lewisham v Malcolm [2008] IRLR 700, it has become very difficult for a claimant to establish discrimination for disability-related less favourable treatment since it required a comparison between the claimant and an individual without the relevant disability. Indeed, in the case of J P Morgan Europe Ltd v Chweidon [2011] Eq LR 779 the Court of Appeal held the concept of disability-related discrimination as a self-standing ground of discrimination has been virtually eliminated, because, for all practical purposes, it added nothing to a claim of direct discrimination, pursuant to Section 3A(5) of the 1995 Act. In light of the foregoing, and the Tribunal's conclusion in relation to the claimant's claim of direct discrimination, as set out later in this decision, it was not necessary to consider this issue any further and, insofar as necessary and appropriate, for the avoidance of any doubt, to dismiss the said claim. (In Great Britain, the gap left by the decision in Malcolm has been filled, insofar as necessary, by Section 15 of the Equality Act 2010. This Act does not apply in Northern Ireland and there has been no relevant amendment to the 1995 Act, which still remains in force in Northern Ireland. See further Frank McCorry and Others as the Committee of the Ardoyne Association v McKeith [2016] NICA 47.)

 

4.11 It is a well-recognised law that, before a claimant can establish a claim, pursuant to the 1995 Act, he must establish that he is a disabled person, having a disability, as defined in the 1995 Act (see before). If he is unable to do so, any claims made, pursuant to the 1995 Act must fail (see J v DLA Piper UK LLP [2010] IRLR 936 and more recently Peninsula Business Services Ltd v Baker [UKEAT/0241/16].

 

4.12 In relation to the issue of disability and whether an employee is a described person for the purposes of the 1995 Act, the Equality Commission issued guidance in a Code of Practice in 2005, replacing the original Code issued in 1996. The Code does not impose legal obligations, nor is it an authoritative statement of the law, which remains a matter for the Tribunals. However the Code can be used in evidence in legal proceedings under the Act. Tribunals must take into account any part of the Code that appears to be relevant to any question arising in those proceedings. If employers follow the guidance in the Code, it is stated it may help to avoid an adverse decision by a Tribunal in such proceedings.

 

4.13 In Appendix B of the Code general reference to the meaning of disability is provided, to aid understanding about who is covered by the Act and mirrors the guidance, issued by the Office of the First Minister and Deputy First Minister (OFMDFM) 2008, to which further reference is made below. This Appendix confirms the definition of disability covers physical or mental impairments and states the term 'mental impairment' is intended to cover a wide range of impairments relating to mental functioning including what are known as learning disabilities. The Act says that a mental illness must be a clinically well-recognised illness in order to amount to a mental impairment. A clinically well-recognised illness is one that is recognised by a respected body of medical opinion. It further states that 'a substantial adverse effect is something which is more than a minor or trivial effect. The requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people' and 'the long-term effect of an impairment are:-

 

(1) which has lasted at least 12 months; or

 

(2) where the total period for which it lasts is likely to be at least 12 months; or

 

(3) which is likely to last for the rest of the life of the person affected.'

 

In relation to the issue of 'normal day-to-day activities' the Code states:-

 

"They are activities which are carried out by most people on a fairly regular and frequent basis."

 

The term is not intended to include activities which are normal only for a particular person or group of people such as playing a musical instrument or a sport, to a professional standard or performing a skilled or specialised task at work. However, someone who is affected in such a specialised way but also affected in normal day-to-day activities is whether it affects one of the broad categories of capacity listed in Schedule 1 to the Act (see earlier).

 

The Code refers to someone with an impairment may be receiving medical or other treatment which alleviates or removes the effects (though not the impairment). In such cases, the treatment is ignored and the impairment is taken to have the effect it would have had without such treatment. This does not apply if substantial adverse effects are not likely to recur even if the treatment stops (ie the impairment has been cured).

 

4.14 At the conclusion of the hearing, the respondents' representative referred to guidance issued by the relevant Secretary of State, pursuant to the Equality Act 2010, which does not apply in this jurisdiction, in relation to matters to be taken into account in determining questions in relation to the definition of disability. He subsequently provided guidance issued under the 1995 Act, in relation to such matters, for England and Wales which applied before the 1995 Act was replaced by the Equality Act 2010. The Tribunal is satisfied this is not, strictly, the correct guidance in this jurisdiction, which is contained in guidance issued by OFMDFM in 2008 and is in similar terms. The respondents' representative suggested the OFMDFM guidance has been withdrawn; but the Tribunal was not provided with any evidence to support this suggestion and thinks more correctly it may be described as 'out of print'. In any event, the Tribunal is satisfied, given the similarity in the terms of all the guidance referred to above, any distinction is of no significance or consequence.

 

In the OFMDFM Guidance, in particular, it is stated, insofar as relevant to these proceedings:-

 

"It is not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded. For example, liver disease as a result of alcohol dependency would count as an impairment, although alcoholism itself is expressly excluded from the scope of the definition of disability in the Act. What it is important to consider is the effect of an impairment not is cause - provided that it is not an excluded condition."

 

(See further Urso v Department for Work and Pensions [UKEAT/0045/16], where the Employment Appeal Tribunal confirmed the focus should be on the underlying facts which amounted to the disability and the effects of it, not on the condition itself.)

 

" Mental Illness

 

A9. The Act previously required that where an impairment arose from or consisted of, a mental illness, that illness had to be clinically well-recognised in order for it to be regarded as a mental impairment for the purposes of the Act. The Disability Discrimination (Northern Ireland) Order 2006 amended the original Act to remove this requirement. However, anyone who has an impairment including one resulting from a mental illness will still need to meet the requirements of the definition as set out in Paragraph A1, in order to demonstrate that they have a disability under the Act.

 

Section D : Normal day-to-day activities

 

List of 'capacities'

 

D1. The Act states that an impairment is to be taken to affect the ability of a person to carry out normal day-to-day activities only if it affects that person in respect of one or more of the following :

 

•          mobility;

 

•          manual dexterity;

 

•          physical co-ordination;

 

•          continence;

 

•          ability to lift, carry or otherwise move everyday objects;

 

•          speech, hearing or eyesight;

 

•          memory or ability to concentrate, learn or understand; or

 

•          perception of the risk of physical danger.

 

For the purposes of this guidance, the above list will be referred to as a list of 'capacities' .

 

D2. The list of capacities should be looked at in a broad sense, and applied equally to both physical and mental impairments. For example, it is often assumed that for people with a mental impairment the relevant capacity will be 'memory or ability to concentrate, learn or understand'. The capacities of mobility and physical co-ordination, for example, are often seen as relevant only where there is a physical impairment.

 

However, in many instances this will not be the case. A person with a mental impairment may also have difficulties carrying out activities that involve mobility or other 'physical' skills, and people with a physical impairment may also have effects that involve mental processes such as the ability to concentrate (for example, as a result of pain or fatigue).

 

D3. An impairment will only be treated as affecting a normal day-to-day activity if it involves at least one of the capacities set out at D1. The substantial effect is determined by looking at the effect on the particular day-to-day activity, not the relevant capacity. So, for example, an inability to go shopping because of restricted mobility is in itself a substantial effect on a normal day-to-day activity: it is not necessary to show that all or any other aspects of the capacity of mobility are substantially affected.

 

Meaning of 'normal day-to-day activities'

 

D4. It should be noted that the list of capacities set out in D1 is not a list of day-to-day activities. It is not possible to provide an exhaustive list of day-to-day activities, although guidance on this matter is given here. In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities.

 

D5. The term 'normal day-to-day activities' is not intended to include activities which are normal only for a particular person, or a small group of people. In deciding whether an activity is a normal day-to-day activity, account should be taken of how far it is normal for a large number of people, and carried out by people on a daily or frequent and fairly regular basis. In this context, 'normal' should be given its ordinary, everyday meaning.

 

D6. A normal day-to-day activity is not necessarily one that is carried out by a majority of people. For example, it is possible that some activities might be carried out only, or more predominantly, by people of a particular gender, such as applying make-up or using hair curling equipment, and cannot therefore be said to be normal for most people. They would nevertheless be considered to be normal day-to-day activities.

 

Work-related and other specialised activities

 

D7. Normal day-to-day activities do not include work of any particular form because no particular form of work is 'normal' for most people. In any individual case, the activities carried out might be highly specialised. For example, carrying out delicate work with specialised tools may be normal working activity for a watch repairer, whereas it would not be normal for a person who is employed as a semi-skilled worker. The Act only covers effects which go beyond the normal differences in skill or ability.

 

D8. The same is true of other specialised activities such as playing a musical instrument to a high standard of achievement; taking part in a particular game or hobby where very specific skills or level of ability are required; or playing a particular sport to a high level of ability, such as would be required for a professional footballer or athlete.

 

D9. However, many types of work or specialised hobby, sport or pastime may still involve normal day-to-day activities. For example, sitting down, standing up, walking, running, verbal interaction, writing, making a cup of tea, using everyday objects such as a keyboard, and lifting, moving or carrying everyday objects such as chairs."

 

4.15 In the recent decision of the Employment Appeal Tribunal, in the case of Herry v Dudley MBC [2016] UKEAT/0100/16, the Employment Appeal Tribunal reviewed the authorities in relation to how the Tribunal should determine whether conditions described as 'depression' will amount to a relevant impairment. In particular, it followed the well-known guidance of Underhill J, as he then was in the case J v DLA Piper UK [2010] ICR 1052 , Paragraph 42, when he stated:-

 

" The first point concerns the legitimacy in principle of the kind of distinction made by the Tribunal, as summarised at para. 33 (3) above, between two states of affairs which can produce broadly similar symptoms: those symptoms can be described in various ways, but we will be sufficiently understood if we refer to them as symptoms of low mood and anxiety. The first state of affairs is a mental illness - or, if you prefer, a mental condition - which is conveniently referred to as 'clinical depression' and is unquestionably an impairment within the meaning of the Act. The second is not characterised as a mental condition at all but simply as a reaction to adverse circumstances (such as problems at work) or - if the jargon may be forgiven - 'adverse life events'. We dare say that the value or validity of that distinction could be questioned at the level of deep theory; and even if it is accepted in principle the borderline between the two states of affairs is bound often to be very blurred in practice. But we are equally clear that it reflects a distinction which is routinely made by clinicians - it is implicit or explicit in the evidence of each of Dr Brener, Dr MacLeod and Dr Gill in this case - and which should in principle be recognised for the purposes of the Act. We accept that it may be a difficult distinction to apply in a particular case; and the difficulty can be exacerbated by the looseness with which some medical professionals, and most laypeople, use such terms as 'depression' ('clinical' or otherwise), 'anxiety' and 'stress'. Fortunately, however, we would not expect those difficulties often to cause a real problem in the context of a claim under the Act. This is because of the long-term effect requirement. If, as we recommend at para. 40(2) above, a Tribunal starts by considering the adverse effect issue and finds that the claimant's ability to carry out normal day-to-day activities has been substantially impaired by symptoms characteristic of depression for twelve months or more, it would in most cases be likely to conclude that he or she was indeed suffering 'clinical depression' rather than simply a reaction to adverse circumstances: it is a common-sense observation that such reactions are not normally long-lived."

 

Importantly, in the context of the present proceedings, the Employment Appeal Tribunal in Herry added the following comment:-

 

"56. Although reactions to adverse circumstances are indeed not normally long-lived, experience shows that there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day-to-day activities. A doctor may be more likely to refer to the presentation of such an entrenched position as stress than as anxiety or depression. An Employment Tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by an Employment Tribunal) are not of themselves mental impairments; they may simply reflect a person's character or personality. Any medical evidence in support of a diagnosis of mental impairment must of course be considered by an Employment Tribunal with great care; so must any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee's satisfaction; but in the end the question whether there is a mental impairment is one for the Employment Tribunal to assess."

 

It was held in Morgan v Staffordshire University [2002] IRLR 190 medical notes which refer to 'anxiety', 'stress', and 'depression' do not amount to proof of mental impairment within the meaning of the 1995 Act.

 

In Ekpe v Commissioner of Police of the Metropolis [2001] IRLR 605, it was held an Employment Tribunal is entitled to have regard to its own observation of the claimant in determining the extent of the claimant's disability. A decision as to whether a disability has an adverse impact on normal day-to-day activities and whether that impact is substantial may properly be influenced by the behaviour of the claimant as demonstrated before the Tribunal, although any Tribunal considering whether to draw an conclusion from such behaviour would be expected to raise that possibility at the hearing.

 

In Vicary v BT [1999] IRLR 680, it was held it is not for a doctor to express an opinion as to what is a normal day-to-day activity. Nor is it for the medical expert to tell the Tribunal whether the impairment which had been proved were or were not substantial. Those are for the Tribunal to arrive at its own assessment.

 

Further, in Ekpe, in commenting on the examples in the guidance, it was stated:-

 

"In answering the question whether the effect is substantial, regard may be had to the examples given in the guidance - but it needs to be emphasised that they are examples only. To focus upon the detail of an example may be to exclude the broader picture of which the detail is only part - yet it is that broader picture ... that has to be considered."

 

4.16 In relation to a failure to comply with the duty to make reasonable adjustments, in Project Management Institute v Latif [2007] IRLR 579, it was held that something more than simply establishing an arrangement resulting in a substantial disadvantage is required before the burden of proof shifts to the respondent. To simply establish an arrangement and substantial disadvantage establishes a duty to make adjustments has arisen. For the burden to shift a claimant must establish facts from which it could conclude a 'breach' has taken place.

 

In Environment Agency v Rowan [2008] IRLR 20, the EAT held it was necessary to identify:-

 

(a) the provision, criterion or practice applied by or on behalf of an employer ('PCP');

 

(b) the physical feature of premises occupied by or on behalf of an employer;

 

(c) the identity of the non-disabled comparators (where appropriate); and

 

(d) the nature and extent of the substantial disadvantage suffered by the claimant.

 

(See also Morse v Wiltshire CC [1999] IRLR 352.)

 

To identify a PCP is of importance to be established for the purposes of determining the other matters in the relevant section of the 1995 Act (eg substantial disadvantage by comparison with persons who are not disabled). In a recent decision in the case of Carreras v United First Partners Research [2016] UKEAT/0266/15/RN, the EAT stated:-

 

"The protective nature of the legislation meant a liberal rather than an overly technical approach should be adopted."

 

In Royal Bank of Scotland v Ashton [2011] ICR 632 Langstaff J held that a Tribunal had to be satisfied there was a PCP which had placed the disabled person concerned at some disadvantage viewed generally, but at a disadvantage which is substantial and which is not to be viewed generally but to be viewed in comparison with persons who are not disabled.

 

5.1 In the light of the facts as found by the Tribunal, and after applying the legislative provisions and the guidance, in particular, in relation to the issue of disability, as set out in the previous paragraphs of this decision, the Tribunal reached the following conclusions, as set out in the following sub-paragraphs.

 

5.2 The Tribunal, in Paragraph 2 of this decision, has set out in considerable detail, the correspondence between the parties, relevant to the issues in this matter, as it is satisfied the said correspondence from the respondents to the claimant accurately reflects and records the chain of relevant events, despite the claimant's contrary suggestions, both in correspondence by him to the respondents and in evidence to the Tribunal. The Tribunal is also satisfied that this correspondence accurately records the managerial decisions/actions taken by the respondents to resolve this matter, prior to the decision to terminate the claimant's employment. The Tribunal has no doubt that, regardless of what steps the respondents took or suggested to the claimant, the claimant would not agree or would seek to avoid consideration of any such steps proposed. This was because he would not accept the previous disciplinary decision of the first respondent to give JS a final written warning and not to remove JS as an employee working at the Belfast store. Indeed, the claimant acknowledged in evidence, if JS had been removed from the Belfast store, he could immediately return to work, without any adjustments or changes. Indeed, as the Tribunal has no doubt that this was central to every action taken by the claimant, relevant to these proceedings. At all times, the claimant sought, in essence, in the course of these proceedings relating to his own dismissal, to challenge the disciplinary decision taken by his employer in 2011, in relation to JS; despite the fact, as set out above, the correctness of that disciplinary decision was not a matter for this Tribunal. This disciplinary decision arose out of the incident between the claimant and JS, which decision, as confirmed in correspondence and evidence, he does not and will not accept. All actions by the claimant, relating to the matters the subject-matter of these proceedings, which as seen above related to his dismissal, has therefore to be considered in that context; and, as a result, the Tribunal found some of his evidence to the Tribunal was less than credible.

 

5.3 The claimant produced no evidence by which the Tribunal could conclude that the claimant was treated less favourably in relation to his said dismissal, on the grounds of sex and/or religious belief. Despite the absence of any such evidence, the claimant insisted on proceeding with these claims. In the circumstances, the Tribunal could not conclude the claimant had been so discriminated and, therefore it dismisses his claims of sex discrimination and/or religious discrimination against the respondents.

 

5.4 Before the claimant is able to establish any claim, pursuant to the Disability Discrimination Act 1995, as amended, he has to show he has a disability, as defined in the said Act and is therefore a disabled person. The Tribunal, on the facts of this case, as found by the Tribunal, as set out in the previous paragraphs of the decision, considered this a very difficult issue to determine in the circumstances. The Tribunal has no doubt that, for the purposes of these proceedings, the claimant exaggerated his symptoms of depression, as diagnosed by Dr McCallan, and, in particular, in relation to what he suggested he could not do in his everyday life. Indeed, if JS was removed from the Belfast store, he accepted there was, on his own evidence, clearly no everyday activity he could not enjoy and carry out. However, it had to be recognised by the Tribunal, a diagnosis of depression had been made by Dr McCallan and that it would appear it has continued for a considerable period of time and that any symptoms, in relation thereto, were apparently alleviated by medication, which is above the minimum level. As in Herry, the Tribunal had no doubt this was a case where the claimant had clearly reacted to circumstances with which he did not agree and this refusal to accept that the managerial decision of the first respondent, in relation to JS, had become entrenched. Although there were references, in the reports, to distress/anxiety/adjustment disorder, Dr McCallan's diagnosis was, in the final analysis, and confirmed at the Tribunal, a diagnosis of depression. However, as in Herry, the claimant was not prepared to alter his view of the situation or to compromise in any way and clearly continued to nurse a grievance over the events of 2011. In this context, it is again necessary to note that the claimant's previous proceedings were dismissed in November 2013, primarily on time-issues, and which had specific relevance to the events in 2011; but as agreed, at the Case Management Discussion on 24 March 2016, the claim, the subject-matter of these proceedings, only related to his claims arising out of his said dismissal.

 

Taking into account the Tribunal's conclusions that there was exaggeration of his day-to-day symptoms but also that, if the issue of JS was resolved on his terms to his satisfaction, he could return to work without any adjustment or change, the Tribunal, not without some hesitation, came to the conclusion that, although he had mental impairment, there was little or no evidence of adverse effect over and above his unwillingness to return to work unless and until JS was removed from the Belfast store. Therefore, following Herry, the Tribunal came to the conclusion that he did not satisfy the definition of disabled person in relation to the necessary effect on his normal day-to-day activities.

 

5.5.1 In light of the Tribunal's said decision in relation to the claimant's disability and whether he was a disabled person, within the terms of the 1995 Act, the claims of the claimant of direct disability discrimination and failure to comply with the duty to make reasonable adjustments, must therefore fail and be dismissed. However, even if the Tribunal was wrong, and the claimant was a disabled person, the Tribunal would still have dismissed the claimant's said claims, as set out below.

 

5.5.2 If the claimant was a disabled person, for the purposes of the 1995 Act, in relation to the claimant's claim for failure to comply with the duty to make reasonable adjustments, the Tribunal has no doubt that, at all times, the respondents sought to make reasonable adjustments to the claimant; but, no matter what was suggested, the claimant was not prepared to agree to or properly consider and/or engage with anything suggested by the respondents. The suggested adjustment of the transfer of JS was not, in the judgment of the Tribunal, a relevant provision, criterion or practice under the 1995 Act, even taking into account the liberal interpretation to be given to the term (see  Carreras). Further, even if it was a PCP, the Tribunal was not satisfied it gave rise to the necessary substantial disadvantage, when the relevant comparative exercise was carried out in relation to any non-disabled comparator, for which there was no evidence. Even if the Tribunal is wrong, as seen in Project Management Institute v Latif, even if a PCP was established together with the necessary substantial disadvantage, this does not cause the burden of proof to change to the respondents. A breach of the duty still requires to be established. The Tribunal is not satisfied this has been established and, again, subject to the foregoing, this claim must fail. Even if, as stated previously, the decision by the first respondent, arising out of the incident in 2011 to give JS a final warning and to keep him in work at the Belfast store was a relevant PCP, this was not a matter to be re-opened by this Tribunal in these proceedings. In any event, it was, by the time of the dismissal in July 2015, some four years later and the Tribunal accepts that to require JS to move so many years later, during a period when the claimant had remained off sick, would not have been a reasonable adjustment in the circumstances. Significantly and crucially, in the view of the Tribunal, the claimant, after initially showing interest to return to work in his meeting in October 2014 with Ms Byers, subsequently refused to respond and/or engage with, the 12 options suggested by Ms Byers following her meeting in October 2014. In the Tribunal's view, a more reasonable and comprehensive set of proposals could not have been made by the respondents. It also is not without significance the claimant refused, unreasonably in the circumstances, to even consider transfer to another store, a further option suggested, such as Lisburn, which was in fact closer to his home and had good transport links from his home. Indeed, it must also be noted that at no time did the claimant, in his evidence, address the comparator issue, relevant to his claim under the 1995 Act.

 

Given the claimant's absolute refusal to compromise in any way in the face of these suggested measures, or even to try them out for a trial period, the Tribunal was not satisfied it could conclude, on the evidence, there was any such failure of the first respondent to comply with its duty to make reasonable adjustments under the 1995 Act.

 

5.5.3 Similarly, in relation to his claim for direct disability discrimination, again the Tribunal did not, on the facts as found by the Tribunal, come to the conclusion, that on the grounds of his disability (see above) the claimant had shown that he had been treated less favourably than the first respondent would treat a person, not having the particular disability, whose circumstances, including his abilities were the same or not materially different from those of the disabled person. In the judgment of the Tribunal, the claimant's dismissal, in the circumstances, was not on the grounds of the claimant's disability. Having refused to accept the previous managerial decision of the respondents in relation to the said penalty imposed on JS and the continued employment of JS at the Belfast store, he had remained off work ever since, despite detailed and reasonable adjustments and measures to resolve this impasse, which the claimant refused to engage with or even try. As a consequence, the first respondent had no alternative but to consider dismissal on the grounds of the claimant's incapacity to do the work he was employed to do. The Tribunal has no doubt that the first respondent would have taken the same decision with either an actual comparator or indeed a hypothetical comparator, neither of which issue the claimant addressed. No employer could continue to employ an employee, in the Tribunal's judgment, in such circumstances. Again, the Tribunal could not conclude the claimant had been directly discriminated against, pursuant to the 1995 Act.

 

5.5.4 Therefore, even if the claimant was a disabled person, the claimant's claims of direct disability discrimination and/or failure to comply with the duty to make reasonable adjustments, would have had to be dismissed.

 

5.6 There was no doubt, in the Tribunal's judgment, that the reason for the claimant's dismissal by the first respondent related to the claimant's capability to perform his work, which he had been employed to do; and which he had ceased to do for almost four years. This is a potentially fair reason for dismissing the claimant, pursuant to Article 130(2) of the 1996 Order. In considering whether the decision was fair, the Tribunal has carefully considered, in some detail, the steps taken by the respondents, as set out in the said correspondence, before the first respondent concluded the claimant's employment required to be terminated. Indeed, the Tribunal, as seen in the correspondence which it has set out in extenso, for the reasons set out above, in previous paragraphs of this decision, noted the extreme patience of the respondents throughout the process; even though it is clear the claimant, at all times, was playing for time and had no real intention, whatever the respondents did, to seriously engage with the process itself or indeed the detailed measures which had been proposed by Ms Byers to allow him to return to work. He put up obstacles as to dates of discussion/meeting, methods of communication, none of which the Tribunal considers were genuine; but yet, to its credit, the respondents, in particular, Mr McCloskey and Mr Wallace, gave the claimant every opportunity to respond in a meaningful way. The respondents obtained all relevant medical evidence, before taking its decision both from Dr McCallan but also from Dr Rehman. As Dr McCallan accepted in evidence, and had been confirmed by Dr Rehman, the only solution, as far as the claimant was concerned, was the removal of JS from the Belfast store; and, if that was not to be given as an option, he was not prepared to return to work. The Tribunal is satisfied Mr Wallace, as part of the process for termination, took every issue into account before deciding the claimant's employment had to be terminated, as set out in his detailed letter to the claimant. The Tribunal has no doubt that the claimant's late e-mail to Mr Campbell was deliberate and a further stalling exercise on his part, given the history of such similar steps with Mr Wallace. His failure to engage on the phone with Mr Campbell was typical of his continuing desire not to co-operate with the process. Given his written submission to Mr Wallace, his grounds for appeal, the Tribunal was not satisfied, a face-to-face meeting between Mr Campbell and the claimant would have added to Mr Campbell's knowledge of the claimant's position and, in particular, would have changed the decision he ultimately took. Mr Campbell, like Mr Wallace before, was not altering the previous managerial decisions in relation to JS and given that this was the only solution acceptable to the claimant, nothing further, in the Tribunal's view, would have been gained by such a face-to-face meeting between the claimant and Mr Campbell. Further, it is clear from his decision, on appeal, in his detailed letter to the claimant, that Mr Campbell considered all relevant issues. Indeed, the claimant did not suggest in evidence, some new matter, which had not been raised previously by him and which he would have wished to raise with Mr Campbell at the appeal. Even if the Tribunal had considered it was necessary for Mr Campbell to have had a meeting with the claimant, taking into account the matters referred to above, and, in particular, the whole process, which resulted in the dismissal, the Tribunal is satisfied the overall process was fair, despite the absence of a meeting with Mr Campbell (see  Taylor  v  OCS Group Ltd).

 

However much care Mr Wallace and/or Mr Campbell took, in determining the issues in this matter, it was not of any use since the claimant would not return to work, unless his conditions in relation to JS were met by the first respondent. JS had been the subject of a managerial decision some four years previously, which was within the remit of management but which the claimant objected to and continued to object to and would not accept. It was his decision not to do so, despite the many, varied and reasonable measures suggested by the respondents to overcome any obstacle put forward by the claimant. As seen in Spencer and East Lindsey District Council, after all relevant consultation has taken place, there has to be a limit to how long an employer is required to continue to employ an employee when, in this case some nearly four years, he is unable and unwilling to return to work. In the circumstances, the Tribunal is satisfied the first respondent done everything possible to avoid termination of the claimant's employment; but with the claimant's refusal to engage in any meaningful and proper way, the Tribunal is satisfied the decision to dismiss the claimant at the end of this nearly four year period of absence on sick leave, came within the bounds of reasonable responses. The claimant, in the circumstances, could not expect the first respondent to wait any longer for the claimant to return to work. The claimant was therefore not unfairly dismissed by the first respondent.

 

6.1 All the claimant's claims, the subject-matter of these proceedings, are therefore dismissed.

 

 

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 17 - 19 October 2016, at Belfast

 

 

 

Date decision recorded in register and issued to parties: