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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Kane v Newry & Kilkeel Institute of Further and Higher Education & Anor [2003] NIIT 3501_01 (7 March 2003)
URL: http://www.bailii.org/nie/cases/NIIT/2003/3501_01.html
Cite as: [2003] NIIT 3501_01, [2003] NIIT 3501_1
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- The applicant's complaint was in respect of unlawful discrimination under the provisions of the Disability Discrimination Act 1995 and for unfair dismissal.
- The tribunal raised the issue as to whether the application had been made within the various prescribed time limits, if not, the tribunal would not have jurisdiction to consider the complaint. Both Counsel expressed the opinion that it would be difficult to consider the question of time limits without hearing the evidence on the broader issues. The tribunal, not being aware of the issues to be raised, accepted that it would leave it's determination of the question of time limits until it had heard all the evidence.
- It was not disputed by the respondents that the applicant suffered from a vision impairment and therefore had a disability under the provisions of the 1995 Act.
- The applicant had been a student at the Institute where she obtained NVQ Level III in Business Administration. The applicant had done some of her placement with the respondents and when she graduated in June 2000 she was engaged as a clerical officer on a six month contract on a temporary basis. This contract was renewed in January 2001 and was extended for a further month meaning that her employment ceased on 31 July 2001.
- In June 2001 the respondents placed advertisements in the press for permanent clerical officers and one of the essential criteria listed for those posts was that applicants should have RSA Stage II in word processing. The applicant made an application but was not short-listed because she did not have one of the essential requirements i.e., RSA Stage II. The applicant was informed on 2 July that she had not been short-listed. The applicant contended that the requirement of RSA Stage II word processing as an essential requirement placed her at a substantial disadvantage under the provisions of Section 6 of the 1995 Act. It was her evidence she had asked for that requirement to be removed as far as she was concerned and considered that this would have been a reasonable adjustment under Section 6 of the 1995 Act.
- The tribunal heard all the evidence in relation to the complaints of unlawful discrimination and unfair dismissal. Counsel then made submissions to the tribunal in respect of both these complaints and on the question of time limits.
- TIME LIMITS
- JUST AND EQUITABLE PRINCIPLE
- The tribunal having reached the conclusion that the applications were out of time it did not have the jurisdiction therefore to determine the complaints of discrimination and unfair dismissal. If the tribunal had erred in any manner in determining the question of time limits, the tribunal considered that it would be appropriate in the circumstances of this case to indicate its decision on the other issues.
- UNFAIR DISMISSAL
- DISABILITY DISCRIMINATION
- The tribunal heard evidence as to the duties to be carried out by permanent staff on appointment. The tribunal were told that the work would require 80-90% of time at the keyboard as compared to the job previously carried out by the applicant which was principally telephone and reception duties. The new post required a high level of proficiency in word processing. The applicant did have some limited experience in keying duties as she typed short letters but by her own admission she had to get others to check her work.
- The applicant's evidence was that she was always discouraged by her teachers from doing her RSA exams. She admitted that she did not take any steps to obtain an RSA qualification in word processing. She considered she was fit to do the work she was doing and that it had been her own choice not to engage in any further development. She also agreed that no-one at the Institute had told her that the RSA course was not appropriate for her.
- The tribunal were referred to Sections 4, 5 and 6 of the Disability Discrimination Act 1995. The tribunal found that the arrangements made by the respondents placed the applicant at a substantial disadvantage in comparison with persons who are not disabled under Section 6(I) and, therefore, placed a duty upon the respondents to take such steps as is reasonable, in all the circumstances of the case, to prevent the arrangements having that effect. Section 6(3)(j) refers specifically to modifying procedures for testing and assessments.
CASE REF: 3501/01
APPLICANT: Joanna Kane
RESPONDENTS: 1. Newry & Kilkeel Institute of Further and Higher Education
2. R J Mullen
(a) The tribunal were of the unanimous opinion that the act complained of by the applicant was a single act and was not a continuous act and therefore the application had not been made within the prescribed time limits. The tribunal did not consider that this was an appropriate case in which it should exercise it's discretion under the provisions of Article 3(2), Schedule 3 of the Disability Discrimination Act 1995. The tribunal did not consider there were grounds for considering that it had not been reasonably practical for the applicant to have made the application for unfair dismissal within the prescribed time limits under Article 145(2)(a) and (b) of the Employment Rights (Northern Ireland) Order 1996.
(b) The tribunal were of the unanimous opinion that the applicant had not been unfairly dismissed.
(c( The tribunal were of the unanimous opinion that the applicant had not been discriminated against on account of her disability.
Appearances:
The applicant was represented by Mr J McGleenan, Barrister-at-Law, instructed by Rosemary Connolly, Solicitor
The respondents were represented by Mr Colmer, Barrister-at-Law, instructed by Education & Library Board Legal Service.
Mr McGleenan on behalf of the applicant submitted there was no issue regarding time limits and the application had been made within the prescribed time limits. He contended that there had been a potentially continuing act up to 31 July 2001 i.e., the day the applicant left. He referred the tribunal to Harvey on Industrial Relations and Employment Law Volume 5 paragraph T 115 to support his contention and submitted that the practice in retaining the short-listing criteria was a continuous act in this practice continued up to 31 July 2001.
Mr Colmer contended that the act of discrimination as alleged by the applicant occurred on 2 July 2001, the day she was told she was not short-listed. The applicant spent the next seven to ten days trying to have a meeting with Mr Mullen unsuccessfully, but did meet Mr McConville Deputy Director. The date of this meeting was not clear to either the applicant or Mr McConville, however, the applicant's evidence was that it was seven to ten days following the failure to short-list her that she spoke to Mr McConville, who advised her that the criteria could not been changed. Mr Colmer submitted that at that time, the applicant had all the facts relevant for a complaint under the Disability Discrimination Act 1995 and could have complained immediately. He contended the three month period ran from 12 and 13 July at the latest and as the application had not been presented until 25 October 2001 it was outside the statutory time limits.
The tribunal were of the unanimous opinion that the act complained of was a one single act and that it did not form a policy, rule or practice which could be deemed to be a continuous act. The tribunal were presented with copies of other advertisements for posts of clerical officer, all of which contained a requirement that RSA Stage II was essential, the criteria did not apply only to the post for which the applicant applied. The tribunal did not accept the fact that the applicant remained in post until the end of July meant the act continued to the end of the month.
The tribunal considered whether it should exercise it's discretion under the provisions of Article 3(2) Schedule 3 of the 1995 Act, and also, whether it had not been reasonably practical for the applicant to have presented her application within the time limits set out in Article 145(2)(a) and (b) The Employment Rights (Northern Ireland) Order 1996.
Mr McGleenan submitted that the death of the applicant's father in January, moving house in April, together with difficulties concerned with her vision impairment, it was clearly apparent that it would be just and equitable to exercise its discretion.
Mr Colmer submitted that the tribunal had to establish the reason why proceedings had not been presented within the time limits. He accepted that the death of her father had caused upset, however, he said two important matters weighed against the applicant. She had stated in evidence that she had been in receipt of guidance from the Equality Commission from early August and therefore had every opportunity to formulate her complaint. Secondly, the applicant had stated that she had applied for a job in 2001. She had been able to deal with an application for a job and there appeared to be no reason why proceedings could not have been issued within the time limits.
The tribunal noted that the bereavement of the applicant's father occurred in January 2001 and she had moved house in April 2001. Neither of these matters appeared to have impinged on the applicant's ability to carry out her job. The applicant did admit that she was in regular contact on the telephone with the Equality Commission during the month of August and when questioned as to why she had not lodged her application within the prescribed time limits she said that she had waited until she was ready and decided to do it in her own time.
The tribunal were of the unanimous opinion that there was no reason why the applicant's complaint could not have been presented within the time limits and there were no grounds upon which the tribunal should exercise its discretion under the just and equitable doctrine. The application was, therefore, out of time. The tribunal also found that there were no reasons why it had not been practical for the applicant to have presented her complaint for unfair dismissal within the prescribed time limits and, therefore, this application is also out of time.
The applicant accepted that she had been engaged on a temporary contract and she did not dispute that the contract came to an end on 31 July 2001. All temporary contracts came to an end at that time following re-organisation. Within the Institute, management had taken the decision to fill all temporary posts with permanent staff. Part of the re-organisation was the setting up the central switch-board and only one switch-board operator was required. This meant that the post occupied by the applicant ceased to exist. The tribunal noted that the expiry of the fixed term contract is deemed to be a dismissal, however, there was no evidence before the tribunal to substantiate that the dismissal in this case had been unfair. The tribunal, therefore, dismisses the application in respect of the unfair dismissal complaint.
It was accepted that the applicant's suffered from a disability i.e., a visual impairment. The applicant's case was that when the respondent advertised for the permanent post of clerical officer that the inclusion of RSA Stage II word processing as an essential criteria placed her at a substantial disadvantage which was demonstrated by the fact that she had not been short-listed because she did not have her RSA Stage II.
She spoke to Mr McConville, Deputy Director, about not being short-listed and she raised the question of her disability and asked him to think about making a special adjustment for her but that he replied there was nothing he could do.
Mr McConville's recollection of this conversation was rather vague. He recalled the question as to why she had not been short-listed and he had replied that she had not met the criteria relating to RSA Stage II. He said that this conversation was very brief. It was put to him in cross-examination that there had been a discussion regarding her disability but he could not recall such a conversation although he recalled that she had asked whether there was anything he could do. He had indicated there was nothing that he could do as the panel had agreed to the essential criteria and this could not be changed.
He was asked whether the applicant had made reference to a reasonable adjustment but he had no recollection of that being discussed but admitted he had only become aware of the concept of reasonable adjustment during the hearing of the case.
The tribunal noted that question of reasonable adjustment was not raised by the applicant in writing or presented formally to the respondents.
Mr McConville said that RSA Stage II was the benchmark in the recruitment of all clerical staff and he was of the opinion that the criteria could not be changed as RSA Stage II was an essential requirement for carrying out the work at that level.
The applicant was not the only candidate not short-listed, M Cully did not have RSA Stage II and was not short-listed and K Shorfall did not have BTech nor NVQ Level III in Business Administration and was not short-listed.
The tribunal accepted that the inclusion of RSA Stage II word processing was an essential criteria for clerical officer posts and that this was the normal practice within the Institute and it was a benchmark as to the competence required to carry out the specific tasks of a clerical officer.
The respondents Director, Mr Mullen, stated that the RSA Examination Board now replaced by the OCR, had special arrangements to facilitate persons with a disability. His evidence was supported by Ms Fitzpatrick who had thirty years teaching practice. The tribunal were referred to a document titled "Access to Vocational Assessment" which set out assessment arrangements for candidates with disability and learning difficulties. Candidates could get enlarged text papers and would be allowed 25% additional time for a person with a disability. The test now does not contain a speed test although candidates are required to complete the tasks in a certain time. In addition the Institute could seek further guidance from the OCR for further help and guidance in respect of a particular candidate.
The tribunal referred to the Code of Practice and noted that it dealt with the question, does the duty of reasonable adjustment apply to applicants?
The tribunal accept that those who set the criteria for the posts would possibly not become aware that the applicant would be applying and therefore would be placed at a disadvantage. It was clear that the applicant's line manager Miss Mullen would have been aware that the applicant was applying and if she had been aware that RSA Stage II was to be included as an essential criteria that it would have placed the applicant at a disadvantage. However, her evidence was that she had no input to the setting of the criteria and it did not come within her remit. Although she had made a request for permanent staff, she had not been involved in determining the requirements for the posts. She did feel disappointed for the applicant but considered that there was nothing she could do about it.
The code of practice also deals with the question, can an employer specify qualifications?
The answer is that an employer is entitled to specify that applicants for a job must have certain qualifications. However, if a disabled person is rejected for the job because he or she lacks a qualification the employer will have to justify that rejection if the reason why the person is rejected is connected with their disability.
Justification will involve showing that the qualification is relevant and significant in terms of the particular job and the particular applicant and that there is no reasonable adjustment which would change that.
An example is referred to where an administrative post specifically specifies candidates must have NVQ Level IV qualifications. It is pointed out that if Level IV fairly reflects the complex and varied nature and substantial personal responsibility of the work and these aspects cannot reasonably be altered the employer will be able to justify rejecting a disabled applicant who has only been able to reach Level III and who cannot show the relevant level of competence by other means.
The tribunal took these matters into consideration and were of the unanimous opinion that the respondents were justified in setting the level of qualification required (inter alia) RSA Stage II word processing.. The evidence before the tribunal was that it was only a person with the level of competence of RSA Stage II word processing that would fulfil the tasks which required 80-90% of their time on keyboard duties. The tribunal were satisfied that even if the requirement had been removed as far as the applicant was concerned as suggested by Mr McGleenan that if she had been successful at interview she would not have been able to perform the keying duties as required by the clerical officer posts.
The tribunal were satisfied that the reason why the applicant was rejected was not solely connected to her disability. On the applicant's own evidence she had decided not to further her development by doing the RSA examinations as she was content with her ability to carry out her reception and telephone duties. However, because of the re-organisation these duties were no longer required to be carried out. Her decision not to obtain the RSA qualifications meant that she did not fulfil the essential criteria which the tribunal were satisfied was an essential criteria for the post advertised. The tribunal were therefore of the unanimous opinion that the applicant's claim of disability discrimination must fail.
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Date and place of hearing: 4, 6 and 7 March 2003 in Belfast
Date decision recorded in register and issued to parties: