Industrial Tribunals Northern Ireland Decisions

 


Carson v Social Security Agency & Ors (Disability Discrimination) [2002] NIIT 3021_01 (13 December 2002)

CASE REF: 3021/01

APPLICANT: Eileen Carson

RESPONDENTS: 1. Social Security Agency

2. Kevin Fox

3. Pat Magee

DECISION

The unanimous decision of the tribunal is that the applicant was not unlawfully discriminated against on the grounds of disability under Section 4 of the Disability Discrimination Act 1995.

Appearances:

The applicant was represented by Mr D Hart and Mr C Campbell of NIPSA.

The respondents were represented by Mr Francis O'Reilly, Barrister-at-Law, instructed by the Departmental Solicitor's Office.

Requests for Amendments of written submissions

During the course of the hearing the applicant conceded that there was no case to answer on the part of the second and third named respondents Kevin Fox and Pat Magee. It was therefore agreed that the claims against the second and third named respondents would be struck out. The case proceeded against the first named respondent the Social Security Agency (hereinafter called "the respondent").

The respondent also applied to amend its Notice of Appearance.

The applicant suffered from congenital sensorineural deafness (bilateral). In the respondent's Notice of Appearance to the applicant's claim the respondent states "1. The respondent denies unlawful discrimination of the applicant contrary to the Disability Discrimination Act 1995 or at all. It is accepted that the applicant is disabled within the meaning of the Disability Discrimination Act 1995."

At the end of the hearing during his summing up Mr O'Reilly made an application to alter the sentence in 1.2.1 above so that the words "it is accepted" should be changed to "it is not accepted". He explained that a mistake had been made which had only been noticed towards the end of the Tribunal hearing.

The applicant's representative Mr Campbell objected to the change at the late stage of the proceedings. The Tribunal find that whether or not the respondents had intended to say that "it was not accepted" or "it was accepted", the practical situation was that arrangements had been made for some period of time prior to the events leading to this case, for the applicant to be specially treated in her workplace because of her deafness. The Tribunal thus hold that it is not necessary to alter the words in the Notice of Appearance.

The Facts and Evidence of the Parties

The applicant was employed in the Newtownards Social Security Office as an E02 Officer dealing with clients claims for Social Security benefits. Due to her deafness, the applicant wore a hearing aid at all times and this was well known in the office, she was given a special desk at the end of the room with a solid wall beside her and this reduced surrounding noise as much as was possible. The applicant stated in evidence that this proved to be a great help and was indeed essential to her being able to carry out her work.

In June 2000 the applicant was recommended for promotion to EO 1 status and her name appeared on the list of potential candidates to be upgraded. At that time the applicant contacted the Personnel Department to tell the Department that she would be available to go to full-time work, she having worked part-time for a number of years.

During September 2000 when the applicant was on leave she discussed a potential part-time post at the promoted level with her Line Manager Miss Leckey. This post was in Windsor House in Belfast. The applicant did not accept this post although she did telephone to the appropriate branch to explain that she wanted to go full-time and to ask if the post could be made full-time. She was informed that the particular job was a part-time job and not likely to become full-time. At the same time she had a brief conversation with a Mr Eddie McGeehan who had previously worked in the Newtownards Branch but was by that time working in Careers Planning in the Personnel Branch. In that conversation the applicant explained to Mr McGeehan that she wanted full-time and not part-time work.

A little later in the Autumn of 2000, by which time the applicant had started full-time working in Newtownards, there was a discussion about a possible full-time post in Castle Buildings but this was not formally offered to the applicant.

In January 2001 the applicant was offered a post at EO 1 level (the promoted level), with Invalid Care Allowance Department at Castle Court in the centre of Belfast. The applicant after some consideration said that she couldn't take the post because she said she had hearing problems and personal problems.

Some discussion ensued between Miss Margaret Leckey, the applicant's Line Manager and the applicant concerning the non-acceptance of this post and Miss Leckey told the applicant that she should give her reasons in writing. As a result of this the applicant wrote a letter to Miss Leckey and Ms Hayward of the Agency Personnel Department dated 23 January 2001. As much of this case turned on the contents of this letter it is set out in full

"1. Miss Margaret Leckey

2. Ms Tabitha Hayward Agency Personnel

I regret that I am unable to take up the recent offer of an EO1 post in Invalid Care Allowance Branch, Castle Court.

This is for a combination of reasons both personal and domestic.

I suffer from deafness in both ears and wear a hearing aid at all times. My consultant has advised me that my present job in a busy Social Security office environment is placing me under stress due to my efforts to listen effectively, this stress being demonstrated by the recurrent problems I have with otitis and ear infections.

My husband has been medically retired from his job some seven years early, suffering from a heart condition and psychological disorders. This means that domestically I am also coping with daily life in a stressful environment. His early retirement has meant that I have been obliged to return to full time work in order to compensate for his loss of income as our youngest daughter is still at university in Scotland.

In the circumstances the pressures of having to travel into central Belfast each day to work in another benefit office, copying with traffic problems and adding even more hours to my working day would result in an unacceptable level of stress with which I feel I could not cope.

I therefore request that you accept a restriction of my mobility, and that any EO1 post offer is made on these terms.

Thank you.

(Signed) Eileen Carson"

On 6 March 2001 the applicant received a response from the Personnel Branch signed by Mr Kevin Fox who was looking after the matter in the absence of Ms Hayward. This stated that "Unfortunately your reasons for refusing the offer of promotion cannot be regarded as acceptable. Regrettably therefore your name has been removed from the promotion list". The letter went on to refer to Paragraph 2229 of the NICS Conditions of Pay and Service Code which Section stated "Departments will give careful consideration to personal circumstances before enforcing the mobility obligation but staff should be made aware of what that obligation entails." This was reference to the Department's requirement that all personnel should be ready and willing to travel to different offices within Northern Ireland and were not entitled to always remain close to home.

The applicant then contacted her GP with a view to obtaining medical evidence to back-up her claim that the additional travel required to go to the centre of Belfast would aggravate her deafness disability. In the meantime, Kevin Fox spoke to Miss Leckey on the telephone to say that despite the letter removing the applicant's name from the promotion list, the Personnel Department were "letting Mrs Carson reconsider in light of the fact that her reasons for seeking to restrict mobility had not been accepted". Further discussions followed and Mr Fox contacted the applicant's GP and in a letter to the applicant dated 6 July 2001 Mr Fox stated "I can confirm that in keeping with your doctor's wishes we are asking the Occupational Health Service to obtain and consider any information your doctor may offer in support of your request to restrict your mobility".

Due to some difficulties that appeared to have risen between the Occupational Health Service of the Northern Ireland Civil Service and the applicant's GP and because of difficulties in complying with the Data Protection Rules, considerable delay occurred between May 2001, when Dr Steele the applicant's GP notified the Personnel Department that he would give a Report to the Occupational Health Service and the date 22 May 2002, when the Personnel Branch finally informed the applicant that her name would be reinstated on the EO1 Promotion List. In that letter of 22 May 2002 the Department confirmed "I can confirm that following clarification of your latest Medical Report, it has been accepted that you should be regarded as disabled under the terms of the Disability Discrimination Act".

"As a consequence of this your name will be reinstated on the EO1 Promotion List. You will therefore be permitted to restrict your mobility to a travelling distance no further than your present location."

The Tribunal was critical of the delay in the respondent informing the applicant of the reversal of the previous decision. Mrs Carson's GP wrote his report to the Occupational Health Service of the Civil Service on 28 September 2001. There were then further documents exchanged between Dr Steele and the Occupational Health Service during September and an Occupational Health Summary Report was issued to Mr Fox on 27 November 2001. In that Report the examining doctor at Occupational Health stated that the applicant's condition "Impacts on her ability to travel. Consideration should be given to this when transferring her work locations". There seems to be no real explanation of the delay from the end of November 2001 until 22 May 2002 when the applicant received her letter stating that her name would be reinstated. However although this delay was very frustrating for the applicant it does not seem to have resulted in any lost opportunity for promotion for her.

The only evidence that the Tribunal heard as to the vacancies at EO1 Level within the Social Security Agency in the North Down Area in that period, was that there was one vacancy in April 2001, which was filled in August 2001. Under an agreed procedure between the Personnel Department and the Unions involved, the posts that became vacant at this level were filled alternatively, by either personnel in the office seeking promotion and by incoming transferees from other offices. On this particular occasion it was the turn of a transferee from another office to fill the post.

The Tribunal also heard evidence that there were 14 other vacancies at EO1 Level within the Northern Ireland Civil Service in the North Down Area (not being in Social Security Offices) these were all filled from within the appropriate departments and not by persons transferring from other departments. Consequently the Tribunal have come to the conclusion that the delay in informing the applicant of the acceptance of the fact that her disability prevented her from travelling to possible postings in other areas, did not prejudice her in obtaining a job at the EO1 Level within her Area. Indeed Mr Fox in his evidence to the Tribunal stated that he had given an undertaking to the applicant that he would hold any possible position that did become available in the area until a decision had been made about her. As it happened no such position in her Department came up.

The Tribunal's decision and its reasons

The Tribunal considered that the key to this complaint lies in the applicant's letter to Ms Leckey and Ms Hayward which is set out in full in 2.6 above. The Tribunal asked itself whether a reasonable employer should have taken from that letter, that the applicant had a disability which precluded her from travelling to Belfast to carry out her employment. The Tribunal hold that this letter does not give such an indication to a reasonable employer. It is apparent that the applicant has a variety of problems including her husband's illness. Indeed most of the letter deals with her husband's problems and those of her daughter still at University.

When the Tribunal read that letter and considered that the applicant had sought to increase her work from part-time to full-time in the Social Security Office in Newtownards and when the Tribunal considered that the applicant in her evidence stated that the arrangements made for her in the Social Security Office in Newtownards had been extremely helpful in allowing her to carry out her duties successfully, the Tribunal is of the view that the applicant did not in that letter make a case to her employer, that it was for medical reasons that she was unable to travel to Belfast.

The Tribunal hold that this letter did not alert the respondent to a potential problem regarding the applicant's health which the respondent was not aware of already.

The Tribunal having reached that conclusion hold that the respondent was acting properly in reconsidering the matter in the light of further representations and conducted a proper enquiry into the applicant's state of health and her disability and ultimately reached a decision that indeed the applicant should not travel further a field.

The Tribunal are critical of the delay of the respondents in notifying the applicant of this decision but having said that the applicant was not prejudiced by this delay as no appropriate promotions were available to her during the period of the delay.

The respondents made some play of the fact that the applicant had telephoned to enquire if a post being offered at the promoted level at Windsor House, which was offered as a part-time job, could be made into a full-time job. This job was also in Belfast. The Tribunal do not accept the respondent's view that this was evidence that the applicant was prepared to accept that particular post. The Tribunal preferred the applicant's version that the applicant was making enquiries to see what exactly was on offer.

However the Tribunal hold that the letter referred to above from the applicant to Ms Leckey and Ms Hayward did not give to the recipients any true indication of the link between her deafness, which she was coping with and for which adjustments had been made by her employer, and the problems of a deaf person travelling some distance to her employment. The respondent, having received that letter acted reasonably in the way it handled the matter and in these circumstances the applicant's claim is dismissed.

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Date and place of hearing: 12-13 December 2002, Belfast

Date decision recorded in register and issued to parties:

3021/01-kw1451