Industrial Tribunals Northern Ireland Decisions

 


Lewis v Maybin Property Support Services (NI) Ltd & Anor (Disability Discrimination/Constructive Dismissal) [2002] NIIT 02145_00 (7 May 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 02145/00

APPLICANT: James Lewis

RESPONDENTS: 1. Maybin Property Support Services (NI) Ltd

2. DHSS

DECISION

The unanimous decision of the tribunal is that the applicant's claim for disability discrimination cannot succeed, and he was not constructively dismissed.

Appearances:

The applicant appeared and was unrepresented.

The respondent was represented by Mr Cunningham of Peninsula Business Services Ltd.

1. At the outset of the hearing all parties applied to have the second respondent dismissed from the proceedings. The tribunal acceded to this application.
2. The tribunal accepts that the applicant was employed by the first respondent as a one-man security guard at the second respondent's premises. The applicant had been employed to work at this site by a number of former employers, and the first respondent had accepted the transfer of the applicant's contract by virtue of the Transfer of Employment Regulations (T.U.P.E) in or about August 1999.
3. In or about April/May 2000 the applicant, who is diabetic suffered two instances of collapse caused by a sudden drop in blood-sugar level, commonly known as "hypos". It was a matter of dispute between the parties whether there had been two or three such instances. In any event, due to concerns raised by the D.H.S.S, the first respondent carried out a "risk analysis" in respect of the applicant, and sought advice from his G.P. It was concluded that in the interests of health and safety, the applicant should be moved to premises which required the presence of two security guards rather than one.
4. The applicant was told that he would be offered such a job in a bank in Dundonald, but between 19 May when the applicant was moved from the DHSS premises and the end of June, no such position was in fact offered.
5. The applicant was offered several temporary positions for very short periods, but for a substantial period he was offered no work and received no income. Although the applicant had never been in receipt of a written contract of employment, his understanding on joining the first respondent's employment was that he would only be paid if work was available.
6. The last job which the applicant was offered was on a temporary basis in Newtownabbey which the tribunal accepts was very inconvenient in terms of location. The tribunal accepts that the applicant had been told when the job was offered that he would be collected and brought home by the first respondent's transport. However on the second day, no transport arrived, and when the applicant queried this, he was told in no uncertain terms that he could make his own way. This was unacceptable to the applicant, and he did not return to work. At the end of June, he acquired alternative employment.
7. The applicant's complaint is that he was treated as a disabled person by the first respondent and therefore moved from his position as a one-man security guard at the DHSS premises. He further complains that his treatment, after leaving the first respondent's premises was unacceptable.
8. In order to avail of the protection afforded by the Disability Discrimination Act 1995 (as modified by Schedule 8) an applicant must show 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".

On the applicant's own evidence he does not suffer such a physical or mental impairment as a result of his diabetes, since he is quite clear that his condition does not have any effect on his ability to carry out normal day-to-day activities. He points to the fact that in the three years he worked at the DHSS premises, the collapses which he suffered during April/May 2000 were the only such events and at least one was caused by him forgetting to have breakfast.

In the tribunal's view therefore the applicant can not avail of the protection of the Disability Discrimination Act 1995 as amended.

9. The tribunal accepts that the delay in securing the job at Dundonald which the applicant had initially been offered was due to special security clearance which takes 16 weeks. Although the applicant did have clearance to work at Government buildings, banks require their own security clearance. However, the tribunal is satisfied that the respondent failed to communicate to the applicant the reasons for the delay, and in particular to inform him that security clearance had been sought and would take some time to achieve. The applicant's frustration is thus understandable. The tribunal is also satisfied, that the Notice of Appearance lodged on behalf of the respondent contained incorrect assertions and was misleading to the tribunal.
10. The tribunal is not satisfied that the respondent's behaviour is such as would entitle the applicant to resign and claim constructive dismissal in all the circumstances.
11. Accordingly the application is dismissed.

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Date and place of hearing: 20 March 2002, Belfast

Date decision recorded in register and issued to parties: 7 May 2002