Fair Employment Tribunal Northern Ireland Decisions

FAIR EMPLOYMENT TRIBUNAL

 

 

CASE REF: 26/17FET

2636/17

 

 

 

CLAIMANT: Angela Dolores Fitzgerald

 

 

RESPONDENTS: 1. Capita PLC

2. Gillian Clarke

 

 

DECISION

 

The unanimous decision of the Tribunal is that the claimant's claims are dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Knight

 

Members: Mr A Barron

Ms E McFarline

 

 

Appearances:

 

The claimant appeared and represented herself.

 

The respondent was represented by Mr Ryan Cushley, Barrister at Law, instructed by Irwin Mitchell LLP.

 

 

1. ISSUES

 

The issues to be determined by the Fair Employment Tribunal were contained in a list agreed between the parties. These were clarified at the beginning of the hearing to be as follows:

 

(1)        Did the respondent have actual or imputed knowledge of the claimant's disability and did the respondents do all that could reasonably be expected to find out about the claimant's disability?

 

(2)        Whether the respondent directly discriminated against the claimant on grounds of her disability, namely Addison's disease contrary to the provisions of the Disability Discrimination Act 1995 as amended (the "DDA").

 

(3)        Whether the respondent directly discriminated against the claimant on grounds of her religious belief contrary to the provisions of the Fair Employment and Treatment (Northern Ireland) Order 1998 as amended (the "FETO")'.

 

In relation to (2) and (3) above the Tribunal had to decide the following factual issues:

 

a.          Did the claimant receive less support than CK and GM from the clinical coach Christopher Dick?

 

b.          Was the claimant required to spend many hours driving and undertaking assessments in clients' homes whereas CK and GM were permitted to carry out assessments in morning clinics at Dungannon?

 

c.          Did the Second Respondent ignore the claimant when the claimant told the Second Respondent that she was becoming unwell due to her disability?

 

d.          If so did any of a-c amount to less favourable treatment of the claimant because of the claimant's disability and/or religion?

 

(4)        Whether the respondent failed to make reasonable adjustments for the claimant pursuant to the DDA:

 

a.          Did the claimant tell her team leader as she alleged that she was feeling tired, stressed and becoming unwell due to her Addison's disease?

 

b.          Did the respondent apply a provision, criterion or practice to the claimant?

 

c.          If so what was that PCP?

 

d.          Was the claimant placed at a substantial disadvantage due to her disability?

 

e.          If so would adjustments have alleviated that substantial disadvantage?

 

f.           Did the respondent unreasonably fail to make these adjustments?

 

(5)        Whether the claimant was subjected to sectarian harassment contrary to the provisions of FETO, namely whether the second named respondent wearing a poppy brooch amounted to unwanted conduct which had the purpose or effect of violating the claimant's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment to the claimant.

 

2. EVIDENCE

 

The Tribunal considered the witness statements and oral evidence of the claimant, Ms Fitzgerald and her witnesses, Ms Triona McCann and Ms Mairead Quinn; and for the respondent, Ms Gillian Clarke, Ms Angela Hall, Ms Eilish Fox, Mr Christopher Dick and Mr Jim Neill. The Tribunal took into consideration all documentary evidence in the agreed bundles to which it was referred by the parties and their witnesses.

 

Where there was a conflict of evidence the Tribunal preferred the evidence of the respondent's witnesses to that of the claimant and her witnesses, which in the view of the Tribunal lacked credibility and was unreliable and inconsistent. The Tribunal noted that the witness statements of Ms McCann and Ms Quinn were practically identical and had been drafted in collaboration with each other and the claimant.

 

The claimant told the Tribunal that she did not need any adjustments to be made for her disability during the hearing, apart from regular breaks. The claimant told the Tribunal that she was also suffering from depression. In order to assist the claimant, the Tribunal ensured that breaks were taken at regular intervals and additionally if required by the claimant.

 

3. FINDINGS OF FACT

 

The Tribunal found the following relevant facts to be proven on a balance of probabilities:

 

1.          The claimant was employed by the first named respondent from 3 October 2016 until her resignation which took effect on 12 February 2017.

 

2.          The first named respondent, Capita PLC, ("Capita") contracted with the Department for Communities in Northern Ireland ("DfC") and the Department for Work and Pensions in England and Wales ("DWP") to medically assess persons claiming Personal Independence Payments ("PIP"), a government benefit for people with a long term health condition or impairment replacing Disability Living Allowance. Capita employs Disability Assessors, medically qualified professionals to carry out these medical assessments and produce a detailed report to DfC/DWP to enable a decision to be made as to whether PIP is payable.

 

3.          The claimant is a registered nurse who qualified in 2007. She applied to the respondent through Donard Recruitment, an agency engaged by Capita. On 16 September 2016 was offered the permanent position of Disability Assessor ("DA") on a permanent basis subject to a 6 month probationary period. The claimant left her previous employment with a Health and Social Care Trust to take up this post and said that Donard Recruitment assured her that Capita would do everything possible to ensure that she passed the training process. They were aware of only one person at that time who had not passed the training and been confirmed in post.

 

4.          The claimant has Addison's disease diagnosed in 2010. This affects her ability to produce cortisol and the claimant told the Tribunal she was adversely affected by stress. She told the Tribunal that she always wears a medical alert necklace in case she had an Addisonian crisis. At a case management discussion held on 5 October 2017 it was indicated for the respondents that while they now accepted that the claimant was a disabled person at the material time for the purposes of the Disability Discrimination Act 1995 as amended, having regard to the claimant's Addison's disease, it was denied that they had knowledge of the claimant's disability during the course of her employment.

 

5.          The claimant had completed a health declaration form on 2 October 2016 which was issued to new recruits. In the section: "I wish my employer to be aware of the following medical history which may be relevant in an emergency which may affect me in the workplace", the claimant stated that she has Addison's disease, that she was taking prescription medicine and that she has intermittent back/neck pain for which takes paracetamol/cocodamol. She answered "No" to the following questions:

 

•                 Does your health stop you from fully participating in general day to day activities both at work and at home?

 

•                 Are you aware of any medical condition or inherited condition which may prevent you from fulfilling your contract of employment now or in the foreseeable future?

 

•                 Are there any workplace adjustments or adaptations which may need consideration to assist you in the workplace to do your work?

 

•                 Do you consider yourself to have a disability * (see below).

 

The explanatory note on the form stated "*Under the Equality Act 2010 a person is considered to have a disability and require reasonable adjustments if they have a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out normal day to day activities".

 

6.          The claimant told the Tribunal she had no problems with Addison's disease and did not consider herself to have a disability when she completed this form. The form was filed away and not passed to the claimant's line manager because the claimant had not identified any issues. The claimant's case was that Addison's disease did not impact upon her performance at work until around two weeks before she was suspended from work.

 

7.          The claimant, like other new recruits, was required by Capita to undergo a strict training process prescribed by the DWP/D fC [JK1]  in order to gain approval as a DA. This comprised an initial 5 week classroom based course followed by "on the job training". The "on the job" training involved completing an initial 20 practice assessments to gain further practical experience of report writing and then completing a further 40 assessments. Success was measured by the achievement of 5 consecutive pass (A) grades- an approval criterion specified by DWP/DfC and additionally maintenance of the standard of 10% or fewer fail (U) grades - an approval criterion specified by Capita.

 

8.          Capita put in place a number of support measures for trainee DAs during the on the job training. These included:

 

•                 A buddy system - during the initial 2 weeks after the five week training period, trainee DAs are paired with a buddy, usually an experienced DA who will provide support with assessments and report writing.

 

•                 Two telephone support lines for trainee DAs -a virtual buddy support line and a DA Support line open from 8am to 8pm Monday to Friday to provide support with report writing.

 

•                 The assignment of and access to clinical coaches by personal contact, telephone email and text to obtain assistance with report writing.

 

•                 A managed workload - the number of assessments started at two per day but increasing to three per day.

 

9.          The claimant along with the other newly recruited DAs in her cohort, attended her initial five week classroom based training course at the Hilton Hotel in Belfast which commenced on 3 October 2016. The training was delivered mainly by Clinical Trainers, Mr Jim Neill and his colleague Shona Hegarty. The purpose of the training was to induct the recruits into the role of DA and train them in how to carry out assessments with benefit claimants, the standards for report writing and the supports available to them. For example DAs were encouraged to contact their Clinical Coach as much as they need during the on the job training, to ask questions or request help with writing reports.

 

10.       The Tribunal rejected the claimant's assertion that she informed Mr Neill that she had Addison's disease. The claimant initially told the Tribunal that on the first day of training, Mr Neill had asked if anyone present had a disability and that when she told him she had Addison's Disease, he agreed that she was disabled and told her that she was going to find this "tough". Neither of the claimant's witnesses had any recollection of Mr Neill asking such a question. During cross examination the claimant changed her evidence. The Tribunal accepted Mr Neill's evidence that this exchange simply did not happen and was satisfied that the claimant did not inform him that she had Addison's disease. The Tribunal accepted Mr Neill's evidence that he did not see the claimant wearing a medical alert necklace at the classroom based training. Furthermore the claimant did not complete or submit the "Learner's Support Needs Form" which DAs are asked to complete to identify any health condition or disability which may give rise to the need for learning support, which could have alerted Mr Neill and his colleague to the claimant's disability. The claimant did not complete this online form because she did not consider that she needed any support for learning.

 

11.       The claimant was able to participate fully and successfully completed the initial 5 week course, which did not include "live" assessments. She did not find the training or exam to be particularly stressful and received the highest score. On a training feedback questionnaire she stated that she appreciated all the training she had been given and felt supported in her role. She told the Tribunal that it was only afterwards that she realised that the training "wasn't all that good". The Tribunal was satisfied that Mr Neill was not aware that the claimant had Addison's disease or any other health issues or that there were any factors that could have alerted him to that fact.

 

12.       The claimant's on the job training commenced on 7 November 2016. She was home based with normal working hours of 37.5 hours per week. Her actual hours of work were determined by an automated four weekly rota between the hours of 8am and 8pm, Monday to Saturday, although in practice the claimant's hours were worked between Monday to Friday. She was expected to complete 2-3 assessments per day. During the first two weeks the claimant was based at the Dungannon Clinic and her assigned buddy was Ms Eilish Fox, an experienced DA. The claimant shadowed Ms Fox while she carried out her assessments during which she talked the claimant through the assessment process. Ms Fox watched the claimant carry out her own assessments and gave her feedback and guidance on her report writing. She stressed to the claimant the importance of ensuring that the correct descriptors were selected for the individual claimant's health and ability to carry out daily activities and that these were supported by evidence. Ms Fox also sat with the claimant during tea breaks and the claimant did not mention that she had Addison's disease. Ms Fox did not notice on any occasion the claimant wearing a medical alert necklace.

 

13.       After these initial two weeks, the claimant and her colleagues were allocated their workload by an automated rota system which scheduled appointments with the PIP claimant either in their own home or at the Dungannon clinic, in either the morning or the afternoon so that the remainder of the time could be spent writing up the reports. The claimant was assigned an operational postcode (closest to her own home) for the purpose of calculating mileage and contractually was not required to complete more than the maximum total mileage of 70 miles per day. The records of the daily mileage completed by the claimant did not support her contention that she was regularly required to drive in excess of the distance specified in her terms and conditions of employment. Part of the claimant's case was that she was treated less favourably than her colleagues, GM (a Protestant) and CK (a Catholic) in that her appointments were scheduled either to take place at the home of the PIP claimants (field appointments) or in the Dungannon Clinic in the afternoon. This meant that she had to write her reports in the evening, outside her contractual hours, which caused her stress and tiredness. She contended that the appointments allocated to her colleagues took place in the mornings at the Dungannon Clinic, which meant they had less travel time and that they were able write up their reports in the afternoon. The record showed that the claimant did spend more time than her colleagues carrying out field assessments and less time in the clinic. However, the Tribunal concluded that the fact that the appointments were scheduled by an automated system undermined the claimant's contention that she had been treated less favourably on grounds of or that this was connected in any way to her disability or religious belief.

 

14.       The claimant's first line manager/team leader left two weeks after the claimant commenced her on the job training. Her replacement was the second named respondent, Ms Gillian Clarke, Field Disability Assessor Manager. Ms Clarke began to manage around 20 DAs including the claimant in mid-November 2016. Her role was to manage performance and wellbeing and to ensure that DAs had support. She was not medically trained and did not assist with report writing but arranged for clinical support if required. She communicated with DAs, including the claimant, by telephone, text and email and she attended at the Dungannon Clinic two or three times a week to provide face to face support. The claimant accepted that she often received telephone calls from Ms Clarke during the day which the claimant did not find to be helpful as if she was driving she would have to pull in to take her calls.

 

15.       The claimant's first face to face meeting with Ms Clarke did not occur until sometime in December 2016. Ms Clarke was wearing a small poppy brooch at this meeting. It was approximately 1cm in diameter. She thought that she must not have removed it from her dress the last time she wore it in November. The claimant's case was that Ms Clarke's actions at this meeting were deliberately designed to create an intimidating, hostile, degrading, humiliating or offensive environment for her and amounted to sectarian harassment. In her witness statement the claimant stated that she was "dismayed to see her dressed in a military coat with a poppy pin on the lapel. She saw me stare at the pin as she shook my hand. As I sat down she removed her coat and placed it on the back of a chair and I thought that at least I would not have to look at the poppy pin during the meeting. However I was dismayed when she removed the pin, sat down and then attached it to her dress. Triona McCann was also in the room packing up her equipment. I said to Ms Clarke 'okay, I understand that you like to dress in World War 2 attire and it is kind of quirky but why are you wearing a poppy in December? She replied that it was in keeping with the World War 2 theme to which I stated 'but they did not wear poppies in World War 2 except in November for remembrance'. As I said this she looked at the poppy and ensured that it was secure. This response shocked me and Triona McCann left the room. Ms Clarke then asked me why I was wearing a medical alert and I told her that I had Addison's disease."

 

16.       The Tribunal did not accept the claimant's account of this meeting. The Tribunal noted that the claimant changed her account at various times including during the investigation of her complaint made after her resignation and at the Hearing in cross examination. The Tribunal rejected her suggestion that Ms Clarke was wearing "fancy dress" and by wearing the poppy she was letting the claimant "know her colours". The Tribunal preferred the evidence of Ms Clarke who denied that she was wearing fancy dress or that she had worn the poppy as a political statement or with the intention to offend. The claimant did not express any objection to the poppy brooch at the time neither did she appear distressed in any way. Had she done so Ms Clarke stated that she would have removed the poppy. She did not consider the poppy to be a sectarian emblem but considered it to be a sign of recognition for all allied forces including those from the Republic of Ireland. She told the Tribunal that she thought it would be acceptable to wear a poppy at any time of the year. The Tribunal considered that the claimant grossly exaggerated the distress caused by seeing Ms Clarke wearing the poppy brooch. She confirmed that she had a problem with seeing the poppy being worn in January (as she could not recall specifically whether this meeting had occurred in December or January) as every time she saw a poppy it reminded her of a time when a British soldier had pointed his gun at her and kept her in his sights until she had crossed the road. On the other hand she told the Tribunal that she would not have been concerned if Ms Clarke had been wearing the poppy in November or at any other time if she had had a relative killed in the conflict. The Tribunal also accepted Ms Clarke's evidence that she did not observe the claimant wearing a medical alert and so there was no discussion on this occasion as was alleged by the claimant about her disability.

 

17.       Ms Clarke told the Tribunal while she is a Protestant, she was not aware of the religious beliefs of her team members and did not consider this relevant. She agreed that the claimant had been treated differently from her colleagues but that she was given more favourable treatment in that she was given additional support to address issues with the quality of her reports and meeting timescales.

 

18.       The claimant experienced difficulties in carrying out assessments and writing up her reports. She found that it was taking her a long time to complete her reports and felt stressed and tired. Ms Clarke spoke to the claimant about the quality of her report writing and her productivity. Ms Clarke received daily reports on the performance of her team which showed that the claimant was getting a high level of U grades and she was behind with the number of reports completed. The claimant informed Ms Clarke that she was having difficulty with the volume of information she had to take on board and told her that she was having to work late at night and in excess of her contractual hours to complete her reports. Ms Clarke denied that the claimant was expected or pressured to work in excess of her contractual hours as DAs were able to organise their own time to suit themselves. She pointed out that if the claimant had an afternoon appointment she would have been able to write up her report the next morning. Ms Clarke did not think it unusual that the claimant reported that she was feeling under stress as particularly during the initial training period, trainee DAs commonly report feelings of stress. At the Hearing the claimant appeared to agree with this as she also made the case that other DAs found the work stressful and that 75% of her cohort ultimately failed to attain approval. The claimant did not report or display to Ms Clarke in any way that her stress was in any way over and above the normal rigours of the training process. The claimant did not say she was unwell or take any sick leave.

 

19.       In response to the claimant's difficulties, Ms Clarke put in place further support measures for her. She permitted the claimant to take "admin days" on 23 November 2016, 20 and 21 December 2016 so that she could catch up on her report writing. In or about December 2016 Ms Clarke asked Ms Fox to provide additional coaching to the claimant with the content of her reports and to help her clear her backlog. Ms Fox completed a total of 18 reports where the claimant had completed the assessment and uploaded information on the benefit claimant but not submitted her report (known as ACORNS). Ms Fox coached the claimant on the contents and quality of her reports and the importance of not jumping to conclusions. The claimant complained on one occasion to Ms Fox that she was feeling tired but did not mention that she was suffering from Addison's disease.

 

20.       Ms Clarke also reminded the claimant to contact Mr Dick, her assigned clinical coach or the DA support helpline if she had any queries about the assessments and report writing. The claimant withdrew any complaint that Mr Dick had treated her less favourably on grounds of religious belief at the Hearing. However she maintained that he had treated her less favourably than GM and CK on grounds of her disability. Specifically the claimant alleged that Mr Dick gave more support to her non-disabled colleagues GM and CK to whom he was also assigned clinical coach. The claimant complained that she was unable to contact Mr Christopher Dick for the first two weeks of her on the job training as he was on annual leave from 7 until 22 November 2018. This was also true for the claimant's colleagues. Upon his return from annual leave he contacted the claimant and arranged to attend an assessment with the claimant on 30 November 2018. On this occasion his view was that although the claimant had asked the benefit claimant the right questions, when he discussed with her in detail afterwards about what she would include in the report she was struggling correctly to apply the descriptors prescribed by the DWP/DfC. He was concerned that she was making value judgments about the benefit claimant's medical conditions. He encouraged her to take a more open minded approach to the report writing process and to apply more factual evidence. The claimant told him during this meeting that she never used the DA Support Line and he encouraged her to do this and to contact him if she had any questions or wanted him to check over her reports. The claimant told the Tribunal that any time she rang the Support Line, which was staffed by health professionals, she found them to be "totally inept" and of very little use to her.

 

21.       In the period from 22 November 2016 until 19 January 2017, Mr Dick attended and observed one assessment each for Ms K and Ms M. Unlike the claimant both these individuals contacted Mr Dick regularly for support with Ms K ringing him several times a day to ask questions. Mr Dick noted in his diary that he initiated phone calls with the claimant on at least 4 occasions, namely 28 November 2016, 12, 20 and 21 December 2016 to discuss why the claimant was consistently receiving U grades. Mr Dick accepted that he probably did provide more support to Ms M and Ms K than the claimant but that this was because they had been more proactive than the claimant in seeking support from him. The claimant asserted that on one occasion when GM interrupted a prearranged meeting she had with Mr Dick at the Dungannon Clinic, standing in front of the claimant and asking him questions, Mr Dick did not tell her that he was in a meeting. The Tribunal considered that had this happened it would have been a discourtesy, it would not have been on grounds of the claimant's disability. The claimant did not at any stage mention to Mr Dick that she had Addisons disease or that she was unwell. The Tribunal was satisfied that Mr Dick did not have personal knowledge that the claimant had Addison's disease. He never saw her wearing a medical alert.

 

22.       Despite the measures put in place by Ms Clarke the claimant continued to struggle with meeting the required standards in report writing. In late December 2016 she had completed a total of 28 cases which received 7 U grades, so exceeding 10% U grades within her first 40 assessments (not including the first 20 learning cases). This meant that the claimant had failed the first set of assessments to receive approval and needed to complete 3 further sets of 10 assessments within which she had to achieve 5 consecutive A grades. On 29 December 2016, Ms Clarke wrote a Performance Improvement Plan for the claimant setting out actions that she needed to focus on, including engaging more with her clinical coaches. Ms Clarke warned the claimant that if at the end of 70 cases she had not attained the standards of approval that her contract of employment would be terminated within her probationary period. Ms Clarke communicated this to the claimant in early January 2017, who confirmed her understanding of the process and did not raise any issue about her medical condition.

 

23.       In early January 2017 the claimant informed Ms Clarke during a telephone call that she was working long hours and was feeling tired and stressed. She said she was thinking about reducing her hours to four days a week. The Tribunal did not accept the claimant's evidence that she mentioned to Ms Clarke that she has Addison's disease and said "that is a disability" or that she said she was unwell. Ms Clarke told the Tribunal that if Addison's disease had been mentioned she would have "jumped on it." She pointed to previous occasions on which the claimant agreed that Ms Clarke had promptly dealt with issues raised by the claimant concerning her vision and struggling to see her computer screen and that her laptop screen was not tilting properly. The Tribunal found Ms Clarke to be credible when she stated that had the claimant informed her about her disability on this or indeed any other occasion she would have made further enquiries with her about its impact upon her. In cross examination the claimant stated that she herself did not realise at this stage that she was unwell.

 

24.       Ms Clarke disputed that the claimant asked to reduce the number of assessments that she had to carry out. Nevertheless Ms Clarke consulted with her own line manager who advised that the flexible working policy required an employee to have 26 weeks' service before a request for flexible working could be considered and the claimant only had about 13 weeks' service and secondly it would not have been practicable for the claimant to reduce her days of work during the approval process as this would have resulted her in having to complete the same amount of work in less time which Ms Clarke believed would have been more stressful for the claimant. Nevertheless Ms Clarke informed the claimant that if she wished to put her request to Ms Clarke formally in writing she would consider it and respond formally, noting that the request was likely to be refused. The claimant did not make a formal request or raise any further issue about this until after her employment had ended.

 

25.       Mr Dick had scheduled a meeting with the claimant on 18 January 2017 to provide one to one coaching. The claimant carried out her next 2 batches of 10 assessments and failed to achieve 5 consecutive A grades in either batch. During this meeting the claimant disclosed that she had carried out her own research on Facebook because she had not believed what she was told by a benefit claimant during an assessment. In breach of Data Protection requirements, she had included this information and also mentioned the name of another benefit claimant in her report, which she had already submitted. Mr Dick advised the claimant that he was extremely concerned that this amounted to a breach of professional standards and told her he would have to contact Clinical Governance to escalate the matter. Before he could do so and during the meeting, he received a call from his own line manager to advise that the issue had already been picked up by the Quality and Learning Support team ("DA Quality Team") when auditing the claimant's report before it was sent to the DfC. The claimant told Mr Dick that she was aware she had made a mistake but did not know why she had done this.

 

26.       The matter was reported by the DA Quality Team to Nicola Hawley, Director of Clinical Governance. Ms Hawley considered that this was an extremely serious matter which could have been hugely damaging to the business of the first named respondent. Following a recommendation from Group HR, on 20 January 2017, Ms Clarke suspended the claimant on full pay pending an investigation into her alleged misconduct. The claimant was informed that she had the right to be accompanied at the meeting by a trade union representative or work colleague.

 

27.       An investigatory meeting took place on 24 January 2017 conducted by Ms Clarke. The claimant attended and opted not to be accompanied. The claimant accepted that it had not been right for her to use information about the customer from her own research on his Facebook page and confirmed that she had used the wrong name in the report. She had realised that it was wrong and she confirmed that she had spoken with Triona McCann who had advised her to report the matter to Mr Dick. She stated that she was deeply sorry and realised that Capita had placed trust in her and that she had let them down. She explained that she felt she was being clever. The claimant did not mention her Addison's disease or any other medical condition or stress as being the reason for her actions. She did not mention that she had acted in this way as a "cry for help" as she later suggested during the investigation of her complaint and at the Tribunal Hearing.

 

28.       Following the investigation meeting Ms Clarke consulted with Ms Hall and the rest of the Clinical Governance team. It was agreed that there was evidence of a serious breach of professional boundaries and that the claimant should be invited to a probationary review meeting to consider the termination of her employment within the probationary period by reason of gross misconduct.

 

29.       A letter was sent to the claimant on 2 February 2017 inviting her to a probationary review meeting to discuss her suitability for the post of DA and the concerns about her conduct. She was informed the possible outcomes were that she could either be confirmed in post, have her probationary period extended if improvement was considered applicable or that her employment could be terminated with appropriate notice. The claimant was notified of her right to be accompanied at the meeting by a trade union representative or work colleague.

 

30.       The probationary review meeting took place on 6 February 2017 and the claimant again confirmed that she did not wish to be accompanied. Ms Clarke reviewed the claimant's performance and high percentage of U grades and that she had not achieved 5 straight A grades as required. The claimant commented that Ms Fox had helped her and that the grades had still come back as U's. Ms Clarke explained that in relation to the breach of professional standards that it was considered that this was a significant data breach and that she had put the wrong person's name on the report and although she accepted that the claimant had not done this before, she intended to end the claimant's probation and terminate her contract of employment. The claimant did not mention any issue relating to her Addison's disease or any health related issue either in connection with her performance or the conduct issue. Although there was a divergence between the claimant and Ms Clarke about the precise details of the ensuing discussion, it was apparent that Ms Clarke gave the claimant the option to tender her resignation instead of being dismissed for gross misconduct. At the hearing the claimant accepted that she wrote out her resignation on a blank piece of paper which had been handed to her by Ms Clarke. Ms Clarke verbally accepted the claimant's resignation and confirmed in a letter to the claimant on 8 February 2017 advising that her that her last working day would be 12 February 2017. It was accepted by the respondents if she had not resigned the claimant would have been dismissed because of her gross misconduct. The Tribunal did not consider that the claimant's religious belief or disability played any part in the decision made not to extend her beyond the probationary period.

 

31.       The claimant subsequently sent a letter of complaint received by Capita on 6 March 2017 raising the following issues:

 

(1)        Donard Recruitment had lied to her when they told her that it was rare for anyone to fail the approval process and that they knew of only one person who had failed and on this basis she had left a permanent position and commenced training with Capita.

 

(2)        That there had been inconsistencies with scheduling and that other DAs had been given better schedules in that she carried out mainly home visits, involving long travel times while other DAs were based in the Dungannon clinic and carried out their assessments in the morning and therefore had more time to write up their reports. In the two weeks that she was based in the clinic her assessments had been scheduled for the afternoon, that she did not get home until 6 pm so that she had to write up her reports until late in the evening. The claimant did not allege in her complaint that this treatment was on grounds of her disability and/or her religion.

 

(3)        That the training provided by DA support line and Quality and Learning Support Team was "pointless" and essentially not fit for purpose. She complained that she did not receive the same support from Mr Dick as was demanded from and given by him to the two DAs in her cohort who were approved and who had carried out the majority of their assessments in the morning and were able to write up their reports in the afternoon. The claimant did not allege in her complaint that this treatment was on grounds of her disability and/or her religion.

 

(4)        That Ms Clarke had placed pressure on her to complete her assessments even though she had told her that she had Addison's disease and that she was stressed and tired and that when the claimant had asked to be permitted to do 2 assessments per day, Ms Clarke had told her that she had to do 4 assessments per day. The claimant alleged that the reports completed by an approved DA often failed and she had to correct these as well. The claimant alleged that Capita in failing to address her reasonable request had failed to adhere to its responsibilities under the DDA.

 

(5)        That Capita had had an "extreme reaction" to the claimant having "outed a fraudster" by using information from Facebook while she was overworked and suffering from stress and fatigue.

 

(6)        That Ms Clarke had dressed in attire from World War II and had worn an emblem on her coat at an inappropriate time of year which the claimant therefore viewed as sectarian.

 

(7)        That Capita's main interest was to achieve targets and increase profit and essentially that it had created a "capitalist pyramid scheme" in which those on the bottom do most of the work are regarded as being "dispensable and easily replaced".

 

32. The complaint was dealt with under the Modified Grievance procedure by Ms Hall. She dealt with the points 4-6 under the heading of "Treatment received whilst employed by Capita." Ms Hall met with the claimant and her representative, Marie McAteer from the Royal College of Nursing and obtained further details from the claimant about her complaint. Prior to the meeting Ms Hall discussed the allegations with Ms Clarke and asked her to forward copies of any relevant documentation for her consideration. Ms Clarke forwarded emails and copy texts between herself and the claimant.

 

33. After the meeting Ms Hall sent a copy of the notes to Ms Clarke and requested her comments. Ms Hall also requested a copy of the claimant's health declaration from the recruitment team, mileage claims and rota to review and compare bookings, information on the support given, notes, letters and emails from the disciplinary hearing, performance information and travel expenses payment information. Ms Hall spoke with Ms Clarke and Karen Garrett who had been at the investigation meeting to establish whether any of the issues in the claimant's complaint had been raised during that meeting.

 

34. Following consideration of the evidence Ms Hall wrote to the claimant on 13 April 2017 informing her that her complaints had not been upheld. Her findings are summarised as follow:

 

•                 Issue 1 Donard Recruitment. Ms Hall found no evidence to suggest that the claimant was misled. At the time that she was recruited only one DA had failed the approval process. After the date of that statement there had been more DAs who had failed the process.

 

•                 Issue 2 Inconsistency with scheduling. Ms Hall advised that the scheduler was an automated tool and appointments were booked based on DA availability four weeks in advance on a clinic/field basis. She did not consider that there was any evidence that her schedule was disadvantageous when compared with other field DAs.

 

•                 Issue 3 Issues with training and Management Support. Ms Hall strongly disagreed that the claimant had been provided with insufficient training and support. She had attended the initial 5 week programme which focused on the content and writing of reports as the role of DA involves report writing. No other DA had complained about the training. As standard support the claimant had access to a DA helpline, her team manager and a clinical coach. Capita recognised that the initial training period can be stressful for DAs and therefore ensures that plenty of support is on hand. Additionally Ms Clarke had offered the claimant additional coaching time with Ms Fox to support her with report writing and helping her clear her backlog of reports and offering her admin days to catch up with report writing. The claimant accepted that she had not often used the support provided for her by Capita as she felt that they did not take into account or value the clinical training and judgment of the DAs and that although she conceded that the QLS DAs are also clinical professionals she did not value their advice. Ms Hall doubted the claimant's assertion that she had not been able to contact the QLS team because there was 80 health professionals in the QLS team available 12 hours per day to provide written feedback or telephony coaching and guidance for DAs requiring help and support.

 

•                 Issue 4 Treatment received whilst employed by Capita. Ms Hall rejected the claimant's contention that she was not given support by her line manager. The claimant had stated that she had found regular calls and texts from Ms Clarke to be unhelpful and stressful but Ms Hall stated that it was essential for the team manager to keep in touch with staff to ensure that they are coping and to identify any support needs. Ms Hall also found evidence that Ms Clarke had offered additional support including coaching time with the clinical coach and Ms Fox, she was encouraged to go to the coach and/or DA helpline if she needed support for cases and received help to complete some of her reports and afforded admin days to catch up with her work.

 

Ms Hall rejected the claimant's allegation that she had had a conversation with Ms Clarke because she found her dress code was sectarian due to a poppy on her coat. Ms Hall accepted Ms Clarke's evidence that no such conversation had taken place. Ms Clarke confirmed that she had a poppy brooch on her dress, not her coat, probably from the last time she had worn it and that had this been mentioned she would have removed it as she would not wish to cause any offence. The claimant had confirmed that she had not asked Ms Clarke to remove the brooch and had not raised this as an issue until after she had left her employment. Ms Hall rejected the claimant's assertion that her workload was unachievable and an illness was not addressed. She accepted Ms Clarke's evidence was not aware that the claimant had Addison's disease. She took into account that on the health declaration form the claimant had stated that no special adjustments were necessary and further that during the investigation of her grievance she had confirmed that she had not discussed or request any reasonable adjustments with Ms Clarke. Accordingly Ms Hall considered that the support which had been offered was appropriate considering that her manager was unaware that she had Addison's disease. Ms Hall rejected the claimant's view that she had been treated unfairly and that there was an extreme reaction when she "outed a fraudster online". Ms Hall observed that the claimant had admitted that her actions had been inappropriate and unprofessional but that she maintained that she had been treated unfairly. Her opinion was that the claimant's language indicated that she had no reservations about the action that she had taken and the claimant had failed in her duty as a health care professional in attempting to identify fraudsters which was not the responsibility of a DA. Ms Hall believed that Ms Clarke's action had been completely appropriate in the circumstances.

 

•                 Issue 5 That Capita and DWP were "in cahoots to make money and that the claimant wished to expose this. Ms Hall rejected this as she stated that there was a highly regulated commercial contractual agreement in place to deliver PIP in line with government policy.

 

Ms Hall advised the claimant that her concerns had been heard under the modified grievance procedure and that she had no right to appeal against her decision which was final.

 

35. The claimant lodged her originating complaint with the Office of the Tribunals on 24 April 2017. In this she complained that she had been subjected to disability discrimination and the failure to make reasonable adjustments and discrimination and harassment on the grounds of religious belief/political opinion. She alleged that she was forced to resign after making a mistake. The claimant alleged that she had been treated less favourably than two other DAs namely GM, a Protestant and CM, a Catholic.

 

36. The respondent entered a response disputing the claimant's claims in their entirety. Ms Clarke added that the allegations of harassment and unlawful discrimination had not been raised by the claimant during the course of her employment.

 

4. THE LAW

 

Religious Discrimination

 

(i) Direct Religious Discrimination

 

Article 3 of the Fair Employment and Treatment (Northern Ireland) Order 1998 ("the 1998 Order") provides:

 

"3 . - (1) In this Order "discrimination" means - 

 

(a) discrimination on the ground of religious belief or political opinion; or

 

(b) discrimination by way of victimisation;

 

and "discriminate" shall be construed accordingly.

 

(2) A person discriminates against another person on the ground of religious belief or political opinion in any circumstances relevant for the purposes of this Order if -

 

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

 

Article 3(3) of the 1998 Order provides:

 

"A comparison of the cases of persons of different religious belief or political opinion under paragraph (2) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other."

 

Article 19 (1) (b) provides that :

 

"It is unlawful for an employer to discriminate against a person, in relation to employment in Northern Ireland, -

 

...

 

(b) where that person is employed 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.

 

(ii) " Harassment" and "unlawful harassment" is defined in Article 3A of the Order:

 

" 3A.-”(1) A person ("A") subjects another person ("B") to harassment in any circumstances relevant for the purposes of any provision referred to in Article 3(2B) where, on the ground of religious belief or political opinion, A engages in unwanted conduct which has the purpose or effect of-”

 

(a)        violating B's dignity, or

 

(b)        creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

 

(2) Conduct shall be regarded as having the effect specified in sub-paragraphs (a) and (b) of paragraph (1) only if, having regard to all the circumstances, including, in particular, the perception of B, it should reasonably be considered as having that effect.

 

(3) For the purposes of this Order a person subjects another to unlawful harassment if he engages in conduct in relation to that other which is unlawful by virtue of any provision mentioned in Article 3(2B)."

 

The EAT (Underhill P presiding) in the context of a race discrimination case,  Richmond Pharmacology v Dhaliwal  [2009] IRLR 336 , made it clear that the approach to be taken to harassment claims should be broadly the same, regardless of the particular form of discrimination in issue. The EAT observed that, in each context, 'harassment' is specifically defined in a way that focuses on three elements:

 

(1) unwanted conduct;

 

(2) having the purpose  or effect of either:

 

(i)     violating the claimant's dignity; or

 

(ii)     creating an adverse environment for her; or

 

(3) on the prohibited grounds (ie of sex, race and so on).

 

Although many cases will involve considerable overlap between these elements, the EAT held that it would normally be a 'healthy discipline' for Tribunals to address each factor separately and ensure that factual findings are made on each of them.

 

Where the claim simply relies on the 'effect' of the conduct in question, the perpetrator's motive or intention-”which could be entirely innocent - is irrelevant. The test in this regard has, however, both subjective and objective elements to it. The assessment requires the Tribunal to consider the effect of the conduct from the complainant's point of view; the subjective element. It must also ask, however, whether it was reasonable of the complainant to consider that conduct had that requisite effect; the objective element. The fact that the claimant is peculiarly sensitive to the treatment accorded him or her does not  necessarily mean that harassment will be shown to exist.

 

In this regard, see the guidance given by the EAT in  Driskel v Peninsula Business Services Ltd [2000] IRLR 151 , which concerned the approach to be taken by employment tribunals, in determining whether alleged harassment constituted discrimination on grounds of sex. In  Driskel the EAT held that although the ultimate judgment as to whether conduct amounts to unlawful harassment involves an objective assessment by the Tribunal of all the facts, the claimant's subjective perception of the conduct in question must also be considered.

 

The Tribunal also had regard to the Guidance issued by the Equality Commission for Northern Ireland to Employers and Employees on Promoting a Good and Harmonious Working Environment so that no worker feels under threat or intimidated because of his or her religious belief or political opinion. The guidance specifies that symbols which are not likely to disrupt a good and harmonious working environment include "marks of remembrance, celebration or commemoration eg poppies, shamrock" and suggests that when these and other marks of identity are displayed with decorum (and, if appropriate, during the designated time) and with a sense of due proportion then they are unlikely to create or sustain a hostile environment. It would be unacceptable however if an individual was made to feel uncomfortable for wearing or not wearing any of these particular emblems or if these emblems were being flaunted before or forced on someone for not wearing them".

 

Disability Discrimination

 

(i)         Direct Disability Discrimination

 

Section 3A(5) of the Disability Discrimination Act 1995 as amended provides that:

 

" (5) A person directly discriminates against a disabled person if, on the ground 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".

 

Direct discrimination occurs where a person's disability is the reason for the less favourable treatment. It cannot be justified.

 

(ii) Duty to Make Adjustments

 

Section 4A of the DDA the duty on employers to make reasonable adjustments arises:

 

"( 1) Where -

 

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

 

(b) any physical feature of 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 prevent the provision, criterion or practice, or feature, having that effect ."

 

In  Environment Agency v Rowan  [2008] IRLR 20 ,  [2008] ICR 218 , the EAT restated guidance (initially given in  Smiths Detection v Berriman  [2005] All ER (D) 56 (Sep) , EAT , and applied in  Ferguson v London Borough of Barnet  [2006] All ER (D) 192 (Dec) , EAT , on how an employment tribunal should act when considering a claim that an employer has discriminated against an employee pursuant to s 3A(2) of the  DDA 1995  by failing to comply with the section 4A duty. Accordingly the Tribunal must identify:

 

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

 

(b)     the physical feature of premises occupied by the employer;

 

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

 

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

 

This approach has subsequently been approved in numerous EAT cases, and also by the Court of Appeal in  Newham Sixth Form College v Sanders  [2014] EWCA Civ 734 . [Harvey Division L paragraph 385].

 

(iii) Knowledge

 

The duty is subject to the actual or imputed knowledge of the employer as specified by S4A(3) of the DDA which states:

 

"(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 that person has a disability and is likely to be affected in the way mentioned in subsection (1)."

 

In Eastern and Coastal Kent Primary Care Trust (Appellant) V. Grey (respondent) - [2009] IRLR 429 , the EAT held:

 

"In our view, subsection (3)(b) means that an employer is exempt from the duty to make adjustments if each of four matters can be satisfied and they are that the employer:

 

i. does not know that the disabled person has a disability;

 

ii. does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;

 

iii. could not reasonably be expected to know that the disabled person had a disability; and

 

iv. could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.

 

... these are cumulative and not alternative requirements..."

 

In Secretary Of State for the Department for Work and Pensions (Appellant) V. Alam (Respondent) - [2010] IRLR 283 the EAT held:

 

"Separately however, it seems to us clear, as a matter of statutory interpretation and giving the language of those provisions their ordinary meaning, that to ascertain whether the exemption from the obligation to make reasonable adjustments provided for by s.4A(3) and 4A(3)(b) applies, two questions arise. They are:

 

1. Did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in s.4A(1)? If the answer to that question is: 'no' then there is a second question, namely,

 

2. Ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in s.4A(1)?"

 

In the recently decided case of Donelien v Liberata UK Ltd [2018] EWCA Civ 129, the Court of Appeal in England and Wales considered the issue of "constructive knowledge" on the part of an employer and confirms that each case must be decided upon its own facts. Underhill LJ giving judgment stated:

 

"4. It is convenient at this stage to refer to the definition of disability in the 1995 Act. Section 1 (1) provided that:

 

"Subject to the provisions of Schedule 1, a person has a disability for the purposes 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."

 

As regards Schedule 1, I need only refer to paragraph 2 (1), which read:

 

"The effect of an impairment is a long-term effect if-”

 

(a) if 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."

 

5. Accordingly, the knowledge in question for the purpose of section 4A (3) is knowledge that the employee had an impairment with those characteristics. The position is summarised by Rimer LJ in  Gallop v Newport City Council  [2013] EWCA Civ 1583 ,  [2014] IRLR 211 . At para. 36 of his judgment (p. 217), he says:

 

" [Counsel] were agreed as to the law, namely that (i) before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person; and (ii) that for that purpose the required knowledge, whether actual or constructive, is of the facts constituting the employee's disability as identified in s 1(1) of the DDA. Those facts can be regarded as having three elements to them, namely (a) a physical or mental impairment, which has (b) a substantial and long-term adverse effect on (c) his ability to carry out normal day-to-day duties; and whether those elements are satisfied in any case depends also on the clarification as to their sense provided by Sch 1. Counsel were further agreed that, provided the employer has actual or constructive knowledge of the facts constituting the employee's disability, the employer does not also need to know that, as a matter of law, the consequence of such facts is that the employee is a "disabled person" as defined in s 1(2). I agree with counsel that this is the correct legal position.

 

[Counsel] submitted that that was a task that the ET did not perform. It started out correctly in para 45 of its judgment by saying that Mr Gallop had to show that "the employer had knowledge or ought to have had knowledge of [his] disability". It then, however, went astray by regarding Newport's knowledge of the disability as exclusively governed by OH's opinion as to whether Mr Gallop was a disabled person. That was wrong. The task for the ET was to inquire and making findings as to Newport's actual or constructive knowledge at the material times of the facts constituting the disability from which Mr Gallop suffered. It did not perform that task."

 

(iv) Burden of proof

 

Article 38A of the FETO and Section 17A(1C) of the DDA set out the burden of proof provisions using similar terms and provide that where, on the hearing of a complaint under the relevant statutory provision, the complainant proves facts from which the Tribunal could, apart from this Article/subsection, conclude in the absence of an adequate explanation that the respondent -

 

(a) has committed an act of unlawful discrimination or unlawful harassment against the complainant, or

 

(b) is by virtue of the relevant statutory provision is to be treated as having committed such an act of discrimination or harassment against the complainant,

 

(c) 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.

 

The Court of Appeal in the case of Nelson v Newry & Mourne District Council [2009] NICA -3 April 2009 dealt with the proper approach for a Tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof. The court stated:

 

"22 The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a tribunal to go through a two-stage decision-making process. The first stage requires the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination. Once the tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof. In McDonagh v Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

 

23 In the post- Igen decision in Madarassy v Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the tribunal's task in deciding whether the tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen. The court stated:-

 

'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, sufficient matter 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 allegations 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 in contesting the complaint. Subject only 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 as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.'

 

That decision makes clear that the words 'could conclude' is not be read as equivalent to 'might possibly conclude'. The facts must lead to an inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be 'presumed'.

 

24 This approach makes clear that the complainant's allegations of unlawful discrimination cannot be viewed 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 properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland [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 the 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."

 

In S Deman v Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal considered the shifting burden of proof in a discrimination case. It referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment 'without more' was not sufficient to shift the burden of proof. At Paragraph 19, Lord Justice Sedley stated:-

 

"We agree with both counsel that the 'more' which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be forwarded by a non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred."

In Laing v Manchester City Council [2006] IRLR 748, the EAT stated at Paragraphs 71 - 76:-

 

"(71) There still seems to be much confusion created by the decision in Igen v Wong. What must be borne in mind by a Tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the Tribunal on the balance of probabilities that certain treatment had been by reason of race.

 

...

 

(73) No doubt in most cases it would be sensible for a Tribunal to formally analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case. As I said in Network Road Infrastructure v Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected. But at what stage does the inference of possible discrimination become justifiable? There is no single answer and Tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.

 

...

 

(75) The focus of the Tribunal's analysis must at all times be the question whether they can properly and fairly infer race discrimination. If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter. It is not improper for a Tribunal to say, in effect, 'there is a real question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed or he did and it has nothing to do with race'.

 

(76) Whilst, as we have emphasised, it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so. There is no purpose in compelling tribunals in every case to go through each stage."

 

The Comparator

 

The comparator in cases of direct discrimination is someone whose circumstances are the same or not materially different from those of the claimant but who does not share the protected characteristic. The comparator may be actual or hypothetical and in direct disability discrimination cases is someone who is not disabled, or who did not have the same disability as the claimant. ( London Borough of Lewisham v Malcolm [2006] IRLR 701. Where there is no actual comparator the Tribunal must identify the characteristics of the hypothetical comparator. However it is open to the Tribunal to focus on the reason for the claimant's treatment; "...employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as (she) was. Was it on the proscribed ground which is the foundation of the application? Or was it for some other reason? If the latter the application fails. If the former, there will usually be no difficulty in deciding whether the treatment afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others." Per Lord Nicholls at Paragraph 11 Shamoon -v- Chief Constable of the RUC [ 2003] IRLR 285 .

 

5. CONCLUSIONS

 

1.                         Applying the law to the facts found, the tribunal reached the following conclusions in relation to the agreed issues as outlined at the beginning of this decision as follows:

 

Actual or imputed Knowledge and the Duty to make adjustments

 

2.                         An employer is not under a duty to make "reasonable adjustments" if it does not have actual or imputed knowledge of the claimant's disability. It is for the claimant to show, in relation to her claim that there had been a failure to make reasonable adjustments, that the respondents had knowledge or ought to have had knowledge of her disability. The information provided by the claimant on the Health Declaration form was not such as to put Capita on notice that the claimant had an impairment with the characteristics required by the definition of a disability in Section 1(1) and Paragraph 2(1) of Schedule 1 of the DDA. Although she stated she had Addison's disease she also claimant had stated that she did not require any adjustments to be made for her and that in her view she did not have a disability within statutory definition. The Tribunal did not accept the claimant's evidence that during her employment she had informed any of the respondent's witnesses that she had a disability and therefore they did not have actual knowledge.

 

3.                         The Tribunal went on to consider whether knowledge of the claimant's disability could be imputed to Capita. The Tribunal was mindful that an employer may be under a duty to make enquiries to establish whether a person is suffering from a qualifying disability. The Tribunal did not accept there had been a failure by Ms Clarke or indeed by any other of the first named respondent's witnesses in not carrying out further investigation. The tribunal did not consider in the particular circumstances of this case that Ms Clarke had sufficient knowledge of the facts constituting the claimant's disability. When the claimant raised the possibility of flexible working, she complained to Ms Clarke that she was feeling tired and stressed and was working long hours. It was not unreasonable for Ms Clarke to conclude from this that the claimant's stress and tiredness related to her difficulties in performing the role of DA, in circumstances where it was normal for DAs to feel stressed due to the demands of the role. The claimant did not relate her feelings of stress and tiredness to her disability. She did not tell Ms Clarke that she was unwell or that she had Addison's disease. She had not taken any sickness absence. The Tribunal did not consider that the claimant's reference to stress and feeling tired was capable of leading Ms Clarke to suspect that the claimant was disabled nor that this was sufficient to trigger an obligation to carry out further investigation. The Tribunal therefore did not accept that the respondents had actual or imputed knowledge of the claimant's disability.

 

4.                         Accordingly the Tribunal concluded that the duty to make reasonable adjustments did not arise in the present case and therefore the claimant's claim that there was a failure to make reasonable adjustments must fail.

 

Direct Disability and Religious Discrimination

 

5.          The Tribunal has found that Mr Dick had the same number of one to one meetings with the claimant as her colleagues CK and GM. He accepted that he may have given more support to CK and GM but this was because they requested assistance from him more frequently than the claimant. There was no evidence before the Tribunal that Mr Dick did not respond to the claimant when she asked him for assistance. The Tribunal has found as a fact that Mr Dick did not know about her disability during her employment. The Tribunal does not accept on the facts found that the claimant has established facts from which it could conclude that she has been treated less favourably on grounds of her disability by Mr Dick. The claimant withdrew her complaint of direct religious discrimination against Mr Dick at the Hearing.

 

6.          The Tribunal has found as a fact that the claimant was required to travel more to field assessments and whereas more of the appointments for GM and CK were scheduled to take place in Dungannon clinic. The Tribunal has found that the reason for this was not on grounds of the claimant's religious belief or disability because the schedules for the claimant and her colleagues were generated by an automated system.

 

7.          The Tribunal concludes from the facts found that the claimant was not ignored by Ms Clarke. The Tribunal has also found as a fact that the claimant did not inform Ms Clarke that she had a disability.

 

Sectarian Harassment

 

8.          The Tribunal considered that on the facts found that for the claimant, the wearing of the poppy brooch by Ms Clarke amounted to unwanted conduct. However the Tribunal was satisfied that Ms Clarke had no animus towards the claimant and did not intend to cause any offence therefore she did not wear the brooch with the purpose of violating the claimant's dignity or creating an adverse environment for her. The Tribunal did not consider that the wearing of the brooch had the effect of violating the claimant's dignity or creating an adverse environment for her. Mindful of the Guidance issued by the Equality Commission, the Tribunal took into account that although Ms Clarke had worn the poppy outside the traditional commemorative period, it had rejected the claimant's account that Ms Clarke had deliberately flaunted the poppy brooch at her or that she had been wearing military or fancy dress or that she had raised any objection to Ms Clarke at the time or before the termination of her employment and had formed the view that the claimant had greatly exaggerated her feelings of distress at seeing the poppy brooch. The Tribunal therefore concluded that the claimant's own view, in all the circumstances that the wearing of the poppy brooch had had the effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her, was not reasonable. The Tribunal therefore dismisses the claimant's claim of sectarian harassment.

 

9.          Accordingly the claimant's claims are dismissed in their entirety.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 12 - 15 March 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: