Industrial Tribunals Northern Ireland Decisions

Scott v Brooks Group (UK) Ltd (t/a Brooks Cookstown) (Unfair Dismissal/Wrongful Dismissal/Breach of Contract/Disability Discrimination) [2003] NIIT 02505_01 (8 September 2003)

THE INDUSTRIAL TRIBUNALS

CASE REF: 02505/01

APPLICANT: Jonathan Scott

RESPONDENT: Brooks Group (UK) Limited, T/A Brooks Cookstown

DECISION

The unanimous decision of the tribunal is that the applicant was not unfairly dismissed, was not wrongfully dismissed, was not dismissed in breach of contract, nor dismissed or subjected to any other detriment, contrary to Section 4(2)(d) of the Disability Discrimination Act 1995 ('the 1995 Act'). Moreover, the tribunal unanimously determines that the respondent did not fail to make reasonable adjustments to accommodate the applicant's disability, pursuant to Section 6 of the 1995 Act. Pursuant to Section 5 of the 1995 Act, the respondent did not discriminate against the applicant.

Appearances:

The applicant was represented by Ms Adele O'Grady, of Counsel, instructed by Doris McMahon, Solicitors.

The respondent was represented by Mr Piers Grant, of Counsel, instructed by McKinty & Wright, Solicitors.

The tribunal found the following facts

1. The correct name of the respondent is Brooks Group (UK) Limited T/A Brooks Cookstown.
2. By his Originating Application, presented on 3 July 2001, the applicant asserted that he had been employed by the respondent as a Forklift operator/order man from 7 August 2000 to 27 April 2001. He complained that he had been subjected to disability discrimination, breach of contract, unfair dismissal and wrongful dismissal. In particular, at Section 13 of his Originating Application, he complained that he lived with "insulin dependent diabetes" and that he was thus disabled within the meaning of the Disability Discrimination Act 1995. Further, at Section 13 of the Originating Application, the applicant complained that:-

"…on 27 April 2001, [he] was working, lifting doors, at Brooks Cookstown when he was approached by the Branch Manager who enquired why he was sweating. The complainant explained it was due to the lifting of the doors. He was then called to the Manager's office and it was stated to him that because of his diabetes he was a liability to the company. The complainant was told to go home for the afternoon, which he did, however he returned later to find out that he had in fact been dismissed, without notice. It was later stated to him the reason for his dismissal was because of his diabetes.

The complainant believes that the respondent's treatment of him (including its failure to make reasonable adjustments for him) is unlawful discrimination against him, contrary to the Disability Discrimination Act 1995.

The respondent's treatment of the complainant is also a Breach of Contract and also amount to unfair dismissal and or wrongful dismissal".

3. In its Notice of Appearance, presented on 7 August 2001, the respondent indicated in Section 7 that:-

The respondent denies the applicant's allegation of discrimination by reason of his alleged disability as alleged or at all.

The respondent denies that it has discriminated against the applicant by reason of the alleged failure to make reasonable adjustments.

The respondent denies that the applicant's contract was terminated unfairly either as alleged or at all.

The respondent denies the applicant's allegation of breach of contract either as alleged or at all.

The respondent denies the applicant's allegation of wrongful dismissal either as alleged or at all.

In as much as the applicant appears to bring a claim of alleged unfair dismissal, which is denied by the respondent, the respondent would contend that the applicant does not have the requisite period of qualifying employment.

The applicant left the company on 27 April 2001 without notice.

The respondent denies each and every allegation made by the agreement at Paragraph 13 of the applicant's Originating Application.

4. On the first day of the hearing, 11 June 2003, the respondent conceded that the applicant had a disability within the meaning of the 1995 Act.
5. The applicant is a 29 year old man who lives in Cookstown. At the interview for his job with the respondent, he notified that he suffered from diabetes but that it was under control. He started his employment with the respondent on 7 August 2000. Prior to that, he had worked as a joiner/cabinet maker for Castle Homes in Antrim for ten years. In that employment he had worked as a forklift driver. He went to work for the respondent because it was closer to his home and involved less travel, since by August 2000 he had a young baby. He worked for the respondent from 7 August 2000 until 27 April 2001 on a 39 hour week. At his job interview, he disclosed to the respondent that he had diabetes. The applicant's diabetes is Type 1 Diabetes. This requires the applicant to take four injections of insulin each day; one in the morning, one in the afternoon, one in the evening and one at bedtime. The applicant has had Type 1 Diabetes for ten years.
6. The applicant suffered a diabetic episode at 9 pm on 12 December 1999. An ambulance was called, but when it arrived the applicant had recovered somewhat and refused to go with the ambulance crew. This incident was followed by a further blackout at 10.30 pm that same evening, and was admitted to the Mid-Ulster Hospital at 11.25 pm that evening. Despite the fact that the hospital notes for this occasion disclose that the applicant was "invited to Diabetic Clinic. He says it does not suit him – ever!!!!", the applicant denied that he had an irresponsible attitude to his disability on ground that he had been attending the Outpatient Clinic at Antrim Hospital. The applicant refuted the contention that he was in denial about the severity of his condition and that he did not take help from others. Moreover, the hospital notes indicate that on 12 December 1999, the applicant had contacted the Doctor-on-Call (advice only) in respect of his diabetes and sought counsel only. He accepted that he had not indicated to these advisors that his diabetes was as severe as it was at that time. In June 2000, his medication was changed. However, by his own account, the tribunal finds that this new medication did not suit the applicant. However, the applicant did not go back to those treating him and ask to be changed back to the original treatment. Thereafter, he had had a serious hypoglycaemic attack which required hospitalisation.
7. The tribunal had the benefit of hearing evidence from Professor Doctor Patrick Bell FRCP, who is a Consultant in Endocrinology & Diabetes at the Royal Victoria Hospital in Belfast, and Honorary Professor of Medicine at Queen's University. Professor Bell had studied the applicant's patient records and had examined him on 21 August 2002. On foot of this study of the data and patient examination, Professor Bell had concluded that the applicant's control of his diabetes was good. Professor Bell's medical report of 6 September 2001 states:-

"Another issue is whether the change of insulin regimen in June 2000 may have contributed to Mr Scott's three episodes of significant hypoglycaemia (two at Brooks and one subsequently). Both insulin treatments regimens would be conventional and considered appropriate. Broadly speaking the Humalog/Humulin I regimen, which he was on whilst at Brooks, would not be considered more likely to result in hypoglycaemia or in a failure to recognise the symptoms. Mr Scott did have a severe hypoglycaemic episode on the old regimen in December 1999. However, it would be accepted that any change sometimes takes a while to settle down. Given that Mr Scott has been well since changing back to his Actrapid/Insulatard regimen, the alternative insulin regimen may have been a factor in predisposing to his problems …"

8. When he has a serious hypoglycaemic attack, the applicant experiences complete black out, falls to the ground, has closed eyes and has little warning of the onset of the attack. The applicant's evidence was that his hypoglycaemia developed over four Stages, viz: first signs of such an episode are - (i) sweating, then (ii) trembling in his hands, then (iii) he becomes unaware of his environment, and then (iv) black out. Black out to the applicant means an inability to hear or communicate with those around him.
9. From Professor Bell's evidence, it is clear that hypoglycaemic episodes evolve over two Stages. In the first instance, the patient may (though not invariably) experience shaking, sweating, fearfulness and anxiety. These initial symptoms can be recognised by the patient who may elect to take appropriate action to minimise the severity of the attack. This first phase is considered as mild hypoglycaemia, and in an ideal situation should be speedily remedied by the patient. Mild hypoglycaemia is cause for concern, and if it occurs more than occasionally, the recurrence should be discussed with the patient's medical advisers. Where the patient takes appropriate responsive action, doctors and those around him/her need not be overly concerned. In the second phase (when they occur) or if the patient does not recognise or react to the first phase of symptoms, the blood sugar is lowered and this impairs brain function, causing confusion, abnormal behaviour and (in extreme instances) coma. This second phase of hypoglycaemia can last anything from a few minutes to a couple of hours. Usually recovery from a severe episode should occur within ten to twenty minutes. Where the patient goes into the second phase of hypoglycaemia, she/he may not appreciate the seriousness of the situation, or the need to take appropriate action. Moreover, where the patient has had a severe hypoglycaemic episode, the patient will usually be aware that something has occurred but will not usually remember everything that has happened. Symptoms such as staring, (partial) forgetfulness, aggression and lack of co-operation could all be indictors of Stage ii (severe) hypoglycaemia affecting brain function. Indeed, after a severe attack, the patient will forget the detail but would be in no doubt that something of significant had occurred. In a severe episode of hypoglycaemia impairing brain function, it is a common feature that the patient may be resistant of assistance from those around him/her. Where a patient is having more than one severe hypoglycaemic episode per year, that incidence should be cause for concern to the patient's medical advisors and efforts should be made to treat the diabetes to reduce the frequency of same. It is always in the patient's best interests to be frank and honest with those who are treating him/her. Around 2% of the population of Northern Ireland suffer from diabetes. Around 0.5% of the population of Northern Ireland treat their diabetes with insulin. Diabetes is a well-researched condition, and information is readily available to the concerned sufferer by means of patient-support organisations (such as Diabetes UK), and on the internet.
10. Professor Bell's medical report on the applicant, dated 6 September 2001, was compiled from the applicant's medical notes and from his examination of the applicant. The applicant had told Professor Bell on 21 August 2001 that he had never had severe episodes of hypoglycaemia.
11. The respondent is a timber and building materials supplier to both the trade and to the general public. It is a UK-wide business, and in the summer of 2000 had just opened a new branch in the Ballyreagh Industrial Estate in Cookstown. The respondent employs around ten or eleven people at its Cookstown store. The applicant's Manager was Mr Patrick Kelly (Branch Manager). Mr Kelly had not had training in the provisions of the Disability Discrimination Act 1995, but was aware of its existence. Mr Kelly was not aware of the Code of Practice that flows from the 1995 Act. The respondent does have health and safety documents in the workplace, but (somewhat oddly) does not have a personnel file for the applicant.
12. The respondent's new premises at Ballyreagh Industrial Estate consist of an outdoor yard and an enclosed shop/store. Members of the general public have access to all parts of the respondent's Cookstown premises, and can wander around inspecting the merchandise. In particular, on a Saturday morning, the respondent would have between 60 and 95 members of the public (on average) come in between 8.30 am - 12.30 pm. The same number of members of the public (including children accompanying adults) would come in between 8 am and 5 pm on any weekday. The respondent has two forklifts at the Cookstown premises. The first forklift can lift up to 3½ tonnes to a height of 10 feet, and the other forklift can lift 4½ tonnes to a height of 16 feet. 90-95% of the applicant's job as a forklift driver/order man involved the movement of stock, often with the aid of a forklift truck.
13. On his first day at work for the respondent, 7 August 2000, the applicant had a diabetic incident. On that morning, he had met Mr Kelly. The applicant had been shown around the respondent's new premises at Ballyreagh Industrial Estate. This tour took an hour. Thereafter, the applicant travelled in Mr Kelly's car with Max Wilson and Mr Shane Devlin (respondent Warehouse Operative) to the respondent's Northern Ireland head office in Belfast. Mr Anthony O'Kane travelled in his own car with other members of the Cookstown staff. The group left Cookstown at around 9.20 am. As the group approached Belfast, Mr Devlin and Mr Kelly both became aware that the applicant was not responding to Mr Kelly's questions. Mr Devlin thought that the applicant was silent because he had taken offence at something that had been said, and thought the atmosphere in the car was tense. The group arrived in Belfast around 10.15 am and the applicant was able to walk from Mr Kelly's car into the boardroom, where staff were introduced to one another. Mr Devlin stayed very close to the applicant at this instant, because he knew he was diabetic. The applicant sat to the left of Mr Devlin. The applicant suffered a hypoglycaemic attack because he had missed his 10 am tea break. The applicant recalls trembling and sweating and not responding quickly to people. He was given sugary tea and a biscuit by Mr Kelly, who spoke to the applicant repeatedly. The applicant did not respond to these enquiries. After about four minutes the applicant began to drink his tea and eat the biscuit. To Mr Devlin, the applicant appeared statue-like, sweating and generally unwell over a twenty minute period. To Mr Kelly, the applicant appeared to be pale and sweating, and so Mr Devlin stayed close to him. Throughout this twenty minute period, Mr Kelly was asking the applicant questions, but the applicant did not respond to any of them.
14. In the boardroom, Mr O'Kane noticed the applicant was unresponsive and in a trance-like state with very slight movement. His complexion was wan and sweating, as though he was about to go to sleep. At that moment, the applicant was not responding to questions. Five or six times Mr Kelly asked the applicant if he was OK but there was no reply. Mr O'Kane observed the applicant in this state for upwards of twenty minutes. The rest of the delegation toured the respondent's premises, but Mr Kelly stayed behind with the applicant.
15. Initially, the applicant rated this episode as Stage (ii) of a severe attack (on his own scale), but conceded in cross-examination that on 7 August 2000 he was statue-like and was unresponsive to those around him. He stated that he was "fuzzy in his head" and was shaking and trembling. He could not say how he was able to speak to Mr Kelly, and later conceded in cross-examination that he was in Stage (iii) of a hypoglycaemic episode. Later in cross-examination, the applicant varied this estimation of his condition downward to a Stage (ii) episode. The applicant alleged the others had been making up what had happened to him. No doctor was called on this occasion. The tribunal finds as a fact that, when the episode had abated, the applicant said to Mr Kelly that he did not know what was happening and that he could not remember coming from Mr Kelly's car into the boardroom. He attributed this loss of function to the fact that he had missed his 10 am tea break.
16. After this incident, Mr Kelly went out of his way to be helpful to and supportive of the applicant. He informed everyone in the Cookstown warehouse that the applicant was diabetic, and asked them to ensure that the applicant got his tea breaks whenever he needed them. The new staff in Cookstown were generally supportive of one another.
17. After this incident on 7 August 2000, in early-to-mid August 2000, Mr Devlin witnessed the applicant in another, similar episode as they were travelling to Belfast. On that occasion, the applicant and Mr Devlin stopped at a filling station in Cookstown, where the applicant bought orange juice, which he drank on the way to Belfast. When they arrived at their destination, the applicant took out his lunchbox and was physically sick into it. At that moment, he was pale and appeared to be in a cold sweat. Then the applicant left the room and came back after about fifteen minutes, and said that he had taken orange juice to compensate for not having had breakfast that morning.
18. After this incident there was another hypoglycaemic incident at work, probably around the end of August 2000. This occurred when the applicant was stacking timber in the respondent's premises in Cookstown, and was witnessed by Mr Norman McCutcheon (who started working for the respondent on 21 August 2000 as a security man whose duties took him all over the respondent's site at Cookstown). Mr McCutcheon would meet the applicant upwards of five times every day. In late August 2000, Mr McCutcheon saw the applicant "standing frozen and sweating". Mr McCutcheon asked the applicant what was wrong with him, but he did not respond. It seemed the applicant was ignoring the questions or that he had not heard them because there was no reaction to the questions at all. Another colleague, Max Wilson, took the applicant to the canteen, where the applicant remained catatonic for about four minutes. After this incident, Mr McCutcheon asked the applicant what had happened, and the applicant informed him that he was diabetic. Mr McCutcheon described in detail what had occurred, but the applicant said that it had not happened. The applicant felt that he recognised the onset of hypoglycaemia and went to the canteen for a sugary drink. He felt that resolved the symptoms within five minutes.
19. At this period of time, Mr Kelly was keeping a close eye on the applicant every day.
20. On 19 November 2000, the applicant was driving a forklift and was unloading a lorry. The applicant realised that he was having the onset of a hypoglycaemic episode because his hands were shaking and he was sweating. This occurred as he was on his way out to the yard. He stopped the forklift, but left the engine running. Therefore, he considered this to be Stage (ii) of a severe hypoglycaemic attack, which he accepted would give an employer cause for concern inasmuch as he could drop something and injure himself or a fellow worker. Moreover, the applicant accepted that a loss of consciousness would be a very serious situation. The applicant refused to accept that he was statue-like on this occasion. He could not say how responsive he was on that occasion, but estimated that he was between Stages (ii) and (iii) of a diabetic episode. He conceded that the fact that he could not say how responsive he was meant that he could not prove that he was in a responsive state. Mr Kelly was standing nearby and recognised the same symptoms as in the boardroom in Belfast on 7 August 2000. Mr Kelly instructed the applicant to get off the forklift and go to the canteen. In the canteen, Mr Kelly got the applicant a sugary drink and a biscuit. The applicant was unresponsive until the episode abated, when he self-injected insulin into his stomach. This episode lasted about ten minutes.
21. The applicant was never taken to the company doctor when he worked for the respondent. Mr Kelly, however, was concerned for the health and safety of (a) employees, and (b) customers. After this episode on 19 November 2000, Mr Kelly told the applicant that he would be taken off all forklift driving duties until he obtained written confirmation that it was safe for the applicant to drive this machinery. The applicant was happy with that and attended at his GP, Doctor Terry C Johnston. Doctor Johnston's practice has been the applicant's doctors since 30 December 1997. The applicant had not consulted his GP from 15 October 1998 (when he presented complaining of a sports injury) until 24 November 2000. On 24 November 2000, the applicant did not mention any significant symptoms to his GP. Doctor Johnston would have considered as 'significant' sudden loss of awareness and loss of capability. Doctor Johnston would have been concerned if the applicant had described to him that he experienced sweats, and turns, and would have been alarmed if the applicant had told him that his diabetic episodes onset suddenly. If the applicant had told Doctor Johnston that he had experienced three or more diabetic episodes within the past year, Doctor Johnston would have been "very concerned". Doctor Johnston prepared a report dated 24 November 2000 to advise:-

"The above patient attended today to discuss his working responsibilities with respect to suffering from diabetes. He has insulin dependent diabetes requiring injection. His condition is stable and he does not suffer any sudden hypoglycaemic episodes. He is well informed about his condition, manages it well and takes appropriate precautions. He appears to be fit to take up driving responsibilities including forklift truck type work. The DVLC is aware of Jonathan's condition. You may wish to inform them of his work duties and responsibilities".

22. The applicant accepted that he had not told Doctor Johnston that he had experienced (i) sweating, (ii) trembling and (iii) occasional loss of control when he consulted him in respect of obtaining a medical after the incident on 19 November 2000. Instead, the applicant had told Doctor Johnston that he experienced episodes but that they were under control. In fact, the applicant had not told his GP that he had experienced the incident at the respondent's Head Office in Belfast on 7 August 2000 and at the respondent's Cookstown premises on 19 November 2000. The applicant gave Doctor Johnston's medical to Mr Kelly on 27 November 2000 and Mr Kelly agreed the applicant was fit to drive the forklift again. However, Mr Kelly again reminded all staff they should ensure the applicant always got his tea breaks.
23. Although he would not admit to it, the applicant suffered a number of other hypoglycaemic incidents at work between 19 November 2000 and 27 April 2001. A work colleague of the applicant, Mr Anthony O'Kane (respondent Sales Representative), has a son aged 9 years who was diagnosed with Type 1 diabetes four and a half years ago. This home experience with his son gave Mr O'Kane a direct experience of managing Type 1 diabetes because his son's insulin is injected by pen cartridge into his tummy, backside or arm. Mr O'Kane witnessed five or six such episodes involving the applicant. Mr O'Kane was one of the delegates who travelled to the respondent's Head Office in Belfast on 7 August 2000, and saw him in an unresponsive diabetic state.
24. Mr O'Kane saw the applicant every other day in the respondent's premises in Cookstown, and got on well with him during this time. Mr O'Kane was a sale representative and was 'on the road' a lot of time as part of his duties. From August 2000 until 27 April 2001, he saw the applicant in three other hypoglycaemic episodes. These were similar in severity to what he had witnessed on 7 August 2000 in Belfast, and usually lasted for fifteen to twenty minutes. On these occasions, the applicant was statue-like and unresponsive. These episodes usually occurred around 10 am in the morning. On one occasion in February 2001, Mr O'Kane had entered the office he shared with Mr Kelly and said that the applicant was in a diabetic episode, adding "that man won't admit there is anything wrong with him and is very aggressive to those around him who are trying to help him".
25. On these occasions, Mr O'Kane applied sugar to the applicant, and imparted the advice that he should ensure that he got his breakfast in the mornings. Moreover, Mr O'Kane kept a bottle of Lucozade, a bar of chocolate and a tube of his son's Hypogeal (a quick-acting, toothpaste-like substance to be applied to a diabetic's gums in the case of a diabetic episode where the sufferer is unconscious) in the drawer of his desk. However, the applicant would not accept Lucozade or a sweet, and was quite unfriendly in the course of a diabetic episode. After these episodes, the applicant would not remember the details of what had occurred during the episode. Mr O'Kane was very worried about the applicant's welfare, and – in his own words – "lectured" the applicant on better self-management of his disability on five or six occasions. Since it seemed to Mr O'Kane that the applicant's episodes usually occurred around 10 am, he wondered if the applicant was skipping his breakfast on some occasions. Therefore, Mr O' Kane advised the applicant to check his blood-sugar level at 8.30 am each day, to ensure he had breakfast, and never to come to work on an empty stomach. Mr O'Kane felt there was no indication the applicant was properly monitoring his blood-sugar levels. In the course of his employment with the respondent, Mr O'Kane saw no evidence that the applicant was heeding any of his advice to him, and detected no improvement in the applicant's diabetes. Mr O'Kane was so worried about the applicant's welfare that he mentioned his concern to Mr Kelly, and told Mr Kelly where to find the sweets, Lucozade and Hypogeal in his desk. Mr O'Kane considered that Mr Kelly was concerned about the applicant's welfare. He is now self-employed, having left the respondent's employment in 2001. His evidence was that his testimony was given on Oath and that he had no reason to lie to the tribunal. The applicant would not accept the evidence of Mr O'Kane in this regard, and stated in evidence to us that he believed Mr O'Kane was lying because he was a friend of Mr Kelly.
26. The evidence before the tribunal is that in the last few months before 27 April 2001, the applicant was on his forklift and unloading a bale of plywood which consists of 100 sheets of woods weighing 1¼ tonnes. The forklift had raised this load to 16 feet above ground level. Mr Shane Devlin encountered the applicant in a statue-like trance, and asked him to apply the handbrake to the forklift truck and offered to take the wood down for the applicant. This was the second or third time Mr Devlin had seen the applicant slumped over the wheel of the forklift during the course of his employment with the respondent. The applicant would not get off the forklift truck, and was slumped over the wheel and continued to perspire, with heavy beads of sweat on his forehead. The applicant remained unresponsive in this state for ten to twenty minutes. Thereafter the applicant lowered the wood by himself, and Mr Devlin asked him if he had had his breakfast that morning. Mr Devlin then advised him to go into the staff room and get something to eat. Mr Norman McCutcheon also witnessed this incident. This incident occurred in an area of the respondent's premises that is open to all members of the public who are respondent customers (including children). Although Mr Devlin was concerned about public safety issues, he did not report these incidents to management because he had suggested that he would 'cover' for the applicant if he went off to have his breakfast, and he did not wish to get the applicant into trouble. Moreover, Mr Devlin had said to the applicant that he should take his breakfast every day – even if this were to make him ten to fifteen minutes late for work – and that he would cover for the applicant in such an eventuality. Although he worked alongside Mr Devlin and got on well with him, the applicant's evidence to the tribunal was that Mr Devlin's version of this event was "pure invention". The applicant conceded, though, that he could not recall each moment of every diabetic episode. The applicant denied that Mr Devlin, Mr McCutcheon and other work colleagues had protected him, watched out for his best interests and assisted him when he was not working to full capacity owing to his disability. After this incident, Mr McCutcheon asked the applicant if he had had his breakfast that morning. The applicant replied using an expletive, and appeared to resent the question.
27. In the course of his employment, Mr McCutcheon and Mr Devlin saw the applicant in a number of similar incidents, upwards of six in all. These episodes usually occurred from 8 – 10 am. These men got on well with the applicant, although when they queried his condition after a diabetic episode he would deny that there was anything wrong with him. Mr McCutcheon felt that the episodes were not so serious as to warrant him calling a doctor, and felt that calling in a doctor was not his place. The applicant's evidence was that Mr Devlin was also lying when he stated to the tribunal what he had seen.
28. On Friday 27 April 2001, at 9.30 –10 am, the applicant was asked to move about twelve doors from one rack to another to improve a display. These were heavy solid oak doors, but Mr Kelly and he did the work together. The lifting and moving was done by hand. Mr McCutcheon noticed the applicant stagger and fall. Mr McCutcheon spoke to the applicant, who did not reply. Mr McCutcheon asked the applicant if he was all right, and the applicant did not reply. He was sweating and was standing statue-like. Mr McCutcheon said, "I will take the door from you" and the applicant did not reply. Mr McCutcheon took the door from the applicant, who remained in a trance-like state. At 10.10 am, Mr Kelly was in and out of the main shop and came over to the applicant to ask how he was getting on. Mr McCutcheon left the scene and the applicant in the care of Mr Kelly. Mr Kelly noticed the applicant was pale, sweating and uncommunicative. Emphatically, Mr Kelly's evidence was that the applicant appeared exactly the same as he had done on 7 August 2000 and 19 November 2000. The applicant's evidence was that he had said to Mr Kelly that he was "fine". The applicant stated that Mr Kelly was concerned the applicant was sweating and asked again if he was "OK". The applicant said that this perspiration owed to the heavy manual work. Mr Kelly's evidence was that the applicant was statue-like on this occasion and unresponsive to his questions. Mr Kelly's evidence was that there was no conversation between the applicant and himself, because the applicant was unable to speak to him. The applicant's evidence was that he attributed the sweat to the manual work he was doing. Mr Kelly took the applicant to the dispatch room where he sat him down and got a spoon, some sugar and some Sprite. By this time, the applicant was still unresponsive. The applicant refused this source of glucose and pushed it away. Mr Kelly went to the applicant's locker and fetched his lunch bag, and gave it to the applicant. The applicant took out a sandwich from his lunch bag and ate it. After some time, around 10.45 am, Mr Kelly saw that the applicant had regained his responsiveness, and asked him if he had realised what had happened. The applicant became resistant and aggressive to this question and insisted that he had not taken a turn, saying "there's absolutely nothing wrong with me. There never has been anything wrong. I never took a turn". When Mr Kelly attempted to explain to the applicant that he had had a bad turn, the applicant became even more aggressive. Mr Kelly explained the serious health and safety implications to the applicant, other staff and to the general public and outlined to the applicant that if these provisions were ignored, then he could be sentenced to imprisonment. He explained to the applicant he could not allow this state of affairs to continue. He explained that that was why he had asked the applicant to go to his GP and get a medical after the incident on 19 November 2000. Although the applicant's evidence was that he agreed that Mr Kelly had outlined the possibly serious health and safety implications (which he accepted were important statutory provisions) of the applicant's diabetes going on unchecked in the workplace, the applicant stated before us that he believed that both Mr Kelly and Mr McCutcheon were lying to the tribunal to keep their jobs.
29. The applicant's evidence was that on 27 April 2001, Mr Kelly had insisted that he was taking a turn and it seemed to the applicant he was anxious to get him into the office. The applicant and Mr Kelly went into the office where Mervyn Gilmore was seated. Mr Kelly asked Mr Gilmore to leave the office. The applicant was placed in a seat by Mr Kelly. The applicant felt that he was not shaking. Mr Kelly said four or five times that he was of the view the applicant was taking a diabetic turn, and the applicant insisted he was not. Mr Kelly then went into the kitchen and returned with a bottle of Sprite and a bowl of sugar. Mr Kelly instructed the applicant to drink it because he felt the applicant was on the verge of a hypoglycaemic attack. The applicant told Mr Kelly the bottle did not contain Sprite, but merely water instead. The applicant took out a carton of orange juice from his lunch bag and drank it whilst eating some sandwiches, and sat for a few minutes. Then the applicant asserted that he was all right. Mr Kelly said that he had had a meeting with Maurice Brooks (NI Managing Director for the respondent) about a week beforehand, and that the respondent wanted to send the applicant to the company doctor at its own expense. The respondent intended to suspend the applicant until he was seen by a company physician. The respondent could not adduce to the tribunal any written proof of these concerns, since it holds no personnel file for the applicant. Moreover, there are no minutes available of any management meetings whereat the respondent discussed the applicant's condition.
30. The applicant was unhappy to see a company doctor, as he had already gone to his own GP. He said that he felt be was being harassed into something he did not want to do. Mr Kelly said that he was sending the applicant home until he felt better and until he saw the company doctor. The applicant said that he was not happy with that. Mr Kelly intended to ask someone to drive the applicant home. However, the applicant jumped up and said that "if you don't want me to drive the forklift and if you insist on me going to see the company doctor when there is nothing wrong with me, then I am leaving and going home". Mr Kelly said, "If you refuse to do what I am asking you to do, and insist on leaving, then there is nothing I can do to stop you". The applicant took his lunch bag and on the way out of the building met Mr Devlin. The applicant said to Mr Devlin "I'm leaving". Mr Devlin then went to Mr McCutcheon and said "I think Johnny has left". The applicant then mounted his push bike at 10.30 am and rode home. Mr Kelly went into the canteen and said to the people gathered there that the applicant had just left. The applicant's evidence was that this act of going home on 27 April 2001 could not be construed as an act of resignation, and that he had not had a diabetic episode on that occasion. However, he did concede that Mr Kelly had only asked him to leave the Cookstown premises on 27 April 2001 on the understanding that he would go to see the company doctor. Moreover, he conceded that he had made absolutely no intimation that he was prepared to go to see the company doctor. Mr Kelly did not ask the applicant to leave the premises or ask him to go home in a car. The applicant denied that Shane Devlin had been a helpful work colleague, who on occasion had helped to get sugar into him. The applicant asserted that Shane Devlin was also lying in his evidence that the applicant had said to him on his way out of the premises that he "was leaving".
31. The applicant had personal effects in his locker which he did not clear out before he left at 10.30 am. Therefore, he returned to the respondent's premises at 1.30 – 2 pm in order to get his wage slip, as it was pay day. The applicant spoke to Shane Devlin when he returned to collect his personal effects and said "I might have news of another job next week with a kitchen outfit. I have to make a call". The applicant shook hands in parting from Mr Devlin, who wished him well. The applicant conceded that he had eventually got a new job, but not the one he had spoken about to Shane Devlin. The applicant is normally given his pay slip by the respondent's secretary, and when he spoke to this lady she said, "I am sorry to hear you are gone". The secretary said this because she had heard that the applicant was about to start another job. The applicant did not ask to speak to Mr Kelly at around 2 pm on 27 April 2001. The applicant interpreted this to mean that he was dismissed. The applicant took his pay slip and drove home. When he returned home, his wife advised him to contact Mr Kelly to find out what was happening. The applicant's evidence was that he telephoned the respondent's premises at 2.30 pm, when Mr Kevin Cassidy (Counter Salesman) answered the phone. However, Mr Kelly's evidence was that the applicant had phoned him at 5.05 pm. When he was put through to Mr Kelly, the applicant asked for a meeting, and Mr Kelly asked what the meeting would be about. The applicant said that it was in respect of what had happened earlier that day. The applicant's evidence was that he asked Mr Kelly if he had been dismissed, and Mr Kelly said that he there was no job at the respondent's workplace for him. However, the tribunal finds as a fact that Mr Kelly said that on that day, and on previous occasions, he had gone out of his way to help the applicant, but each time the applicant had denied that any episode had occurred, and had been abusive. Mr Kelly said, "You got up and walked off and left your employment. As such, I have nothing more to say to you". The applicant said that he was very disappointed at the way the matter had been handled. His evidence was that he asked Mr Kelly if he had been dismissed because of his diabetes, and Mr Kelly replied in the affirmative. Mr Kelly's evidence was that this phone call came through at 5.30 pm, and the applicant conceded that he could not be sure of the time when he made the call. The applicant did not wish to go to the company doctor, because he felt continually harassed two or three times each week by Mr Kelly about his diabetes. He felt continually pressurised into a consultation with a company doctor. He felt that he had not been formally warned about the implications of his diabetes. Mr Kelly accepted that the applicant had not been warned verbally or in writing about the respondent's concerns regarding the disability. This was because the respondent did not wish to take the applicant out of his job.
32. The applicant's evidence was that, in the course of his employment, Mr Kelly had asked him about his diabetes about 90 - 100 times. Mr Kelly's evidence in this regard was that he had spoken to the applicant around 20 - 30 times. Moreover, the applicant's evidence was that the respondent had never proposed alternative duties for him, or written to him about the respondent's health and safety concerns. He had received no written or verbal warnings. The applicant's evidence was that he had not suggested to the respondent that he was prepared to do alternative duties, or that it should make specific alterations to accommodate his disability. One such alternative duty was operating the saw that cut timber to customers' requirements. The saw has a guard around it. However, this saw was used only once every two or three weeks. The applicant was not computer literate and therefore could not operate in the sales area of the respondent's Cookstown premises.
33. The applicant received written terms and conditions of employment which were signed off by Maurice J Brooks (respondent Regional Director) and by the applicant. By Section 8.5 of these written particulars, the applicant had a right to appeal against any disciplinary procedure imposed, and four separate steps for such an appeal are set out in Section 8.5 therein. The applicant's evidence was that he did not read these terms and conditions of employment. The applicant did not appeal what he perceived to be his dismissal. The applicant stated before us that he did not know of a right of appeal. He believed that he had been replaced by Monday 30 April 2001. However, Mr Shane Devlin was emphatic that this was not the case, and that the person who replaced the applicant did not start for 6 - 8 weeks after 27 April 2001.
34. On 1 May 2001, Mr Kelly wrote the applicant. However, Mr Kelly rejected the suggestion that the contents of this correspondence indicated the applicant was dismissed. Mr Kelly asserted that the applicant had resigned. The contents of the letter of 1 May 2001 are as follows:-

"Following the termination of your employment on Friday 27 April, I enclose herewith your P45 and pay slip for last week representing all monies due to you at your departure.

I wish you every success in the future".

35. Five days after this incident on 27 April 2001, on 2 May 2001, the applicant consulted his diabetic nurse to advise that he had experienced hypoglycaemic attacks without warning. The nurse, Valerie Stephenson, advised the applicant to be careful in the management of his insulin treatment. The applicant could not say why he had consulted the diabetic nurse and not his GP. The applicant conceded that the insulin treatment he had been put on in June 2000 was not working properly.
36. The applicant collapsed at work with his new employer on 9 June 2001. On that occasion, he had had no warning of the impending diabetic episode. The applicant's hospital notes from Mid-Ulster Hospital on that occasion were written by Doctor L E Walker MD FRCP and note that, "… he was unconscious on arrival at Casualty but came round after 50 mls of 50% Dextrose". Doctor Walker also notes:-

"…he has been advised that he should not drive because of his recent onset of hypoglycaemic awareness. I warned him that it was enough simply to attribute this to his change of insulin and to go on regardless and that he definitely should not be driving. This was reinforced and he has been advised to report this to the DVLA. He has been advised that if he drives he would not be insured".

37. The applicant consulted his GP, Doctor Johnston, again on 22 June 2001. Another consultation with his GP occurred on 14 August 2001, when Doctor Johnston noted in the patient file that the applicant was:-

"Entirely well and fit to drive. On return to his previous insulin. Attends well".

38. A further medical report written by the applicant's GP and dated 14 August 2001, notes:-

"The above patient suffers from IDD. His insulin preparation was changed by hospital outpatient doctor in the preceding months to 9 June 2001, when he was admitted with fainting turns to Mid-Ulster Hospital. He had not been happy on this new insulin, feeling generally out of sorts previously, although with no previous such turns.

In hospital on 9 June 2001 he was changed back to his previous insulin and has been entirely well since. He has never had any problems driving and on examination today is entirely satisfactory".

39. Doctor Johnston agreed that if the applicant had told him of any further incidents of Stage (ii) hypoglycaemia (on Professor Bell's scale) he would have recorded these remarks. Had he known that the practice nurse had recorded that the applicant had complained, on 2 May 2001, of hypoglycaemic episodes without warning, Doctor Johnston would not have accepted at face value what the applicant told him regarding his diabetes, and would have qualified his letter of 14 August 2001. Moreover, Doctor Johnston stated to the tribunal that, in the light of what he now knew of the applicant's condition, he would not have written the letter of 24 November 2000 in respect of the episode at work on 19 November 2000, and would not have recommended him as fit to drive without first obtaining an assessment from a specialist in diabetes.
40. An agreed letter from Doctor D Rooney (Consultant Physician & Endocrinologist at the Antrim Hospital) dated 9 November 2001 notes of the applicant:-

"Mr Scott again failed to keep an appointment at the Diabetes Clinic on 8 November 2001.

He has now not actually attended a Diabetes Clinic at Antrim since June 2000 and I have therefore not arranged a further appointment".

41. A further medical report from Doctor Johnston, dated 16 January 2002, was compiled for the applicant's Solicitors, and states;

"With regard to your request that I consider Mr Scott's condition over the 8-9 months prior to 27 April 2001, it appears to have been satisfactory with no adverse reports. His presentation on 9 June 2001 did give rise for concern. Doctor Walker states "he attributes the loss of warning (re: hypoglycaemic episode) to the fact that he had changed from Actrapid to Humalog insulin". Perhaps, hand written records of his admission to Mid-Ulster Hospital should be reviewed to ascertain history of any further relevant symptoms over the period in question…"

42. The report of Doctor Johnston does not mention the applicant had been admitted to the Mid-Ulster Hospital on 12 December 1999. Doctor Johnston's evidence was that the applicant's blood-sugar reading on 12 December 1999 was 2.2 which he regarded as "very low". Moreover, Doctor Johnston had not noticed the note on the applicant's medical notes, made by Nurse O'Neill on 2 May 2001, which stated that the applicant had been referred complaining of hypoglycaemic episodes without warning. Doctor Johnston felt this meant that the applicant had been referred to the diabetic nurse at Antrim Hospital for advice on treatment. From what the applicant told his GP, Doctor Johnston had formed the medical opinion that the applicant's diabetes was well controlled and well managed. However, Doctor Johnston told the tribunal that the view he had of the applicant's control and management of his diabetes was contradicted by the letter from Doctor D Rooney dated 9 November 2001. The applicant could not explain to the tribunal why, if he had informed Doctor Johnston of his turns on 19 November 2000 and on 14 August 2001, Doctor Johnston had not recorded these incidents.

The decision of the tribunal

43. The tribunal has considered all the evidence before it, and makes the following decision on foot of the findings of fact above. Moreover, the tribunal has considered very carefully the Originating Application, Notice of Appearance, all the parties' submissions, and all the citations, references and case law cited. Before it sets out its decision, the tribunal wishes to earnestly record its gratitude to the parties' representatives for their professionalism and courtesy throughout.
44. By a unanimous Decision, the tribunal makes the following decision:-

A.	The correct name of the respondent is Brooks Group (UK) Limited T/A Brooks Cookstown.
B.	The applicant had a disability within the meaning ascribed to that concept as provided by Section 1(1) of the 1995 Act. This disability was conceded by the respondent on the first day of the hearing before us. The applicant has suffered from Type 1 diabetes for ten years, and it is clear that this is a physical impairment which has a substantial and long-term adverse effect on his ability to carry out day-to-day activities.
C.	The tribunal had before it two categorisations of Type 1 diabetes – that of the applicant and that of Professor Bell. The tribunal prefers the description adumbrated by Professor Bell, who categorised Type 1 Diabetes as manifesting in two Stages. Stage (i) diabetes is characterised by shaking, sweating, fearfulness and anxiety. Stage (ii) is manifested by confusion, abnormal behaviour, staring, and forgetfulness (owing to impaired brain function), aggression and lack of co-operation. Stage (ii) episodes can last from around twenty minutes to a couple of hours in the extreme. After a Stage (ii) episode, the patient may forget the detail of what has just occurred, but would have no doubt that something of significance has happened. It is a common feature of such attacks that, during such events, the patient may not accept assistance.
D.	Doctor Johnston, the applicant's GP, accepted that he had not been made aware by the applicant of the severity of the diabetic episode at work on 19 November 2000. Had he been made aware of the degree to which the applicant was affected on that day, he should have preferred to have referred his patient to specialist treatment, and would not have written the letter to the respondent of 24 November 2000 to advise that the applicant was fit to resume his driving duties at work.
E.	The evidence before the tribunal, inescapably, leads us to the determination that the applicant experienced at least six to eight Stage (ii) episodes between 12 December 1999 and 9 June 2001. The first such attack merited the call out of an ambulance on 12 December 1999, and a second episode that same day occurred at 10.30 pm when the applicant blacked out and had to be admitted to the Mid-Ulster Hospital at 11.25 pm. Confirmation of the severity of this Stage (ii) attack was in the demeanour of the applicant, who later rejected the invitation to attend the Diabetic Clinic as it would not "ever" suit him to do so. Around June 2000, the applicant's medication was changed from his Actrapid/Insulatard regimen. This alteration did not agree with the applicant. The main part of the applicant's work at the respondent's Cookstown premises from 7 August 2000 onward was forklift driving. There is no doubt in our mind that the second episode, which occurred at 10.15 am on 7 August 2000 in the respondent's Belfast premises was a Stage (ii) hypoglycaemic attack, when the applicant's brain function was so impaired that he was unable to respond to Mr Kelly's repeated queries as to his well-being. At that moment, the weight of the evidence from Mr Kelly, Mr Devlin and Mr O'Kane was that the applicant was statue-like in the boardroom for around twenty minutes. Even the applicant conceded before us that – on that occasion – he was "fuzzy in his head". This description perfectly matches Professor Bell's description of a Stage (ii) episode, where the patient had a limited recollection and a reduced insight into what has happened to him. A third such incident occurred in early to mid-August 2000, and was witnessed by Mr Devlin, although that event probably was a Stage (i) attack, as described by Professor Bell. However, the incident that occurred towards the end of August 2000 in the Cookstown premises, when the applicant appeared statue-like to Mr McCutcheon appears to us to have been a Stage (ii) episode as described by Professor Bell. A fourth Stage (ii) episode occurred on 19 November 2000, when the applicant was driving the forklift in the Cookstown premises, when the applicant accepted that he was in a statue-like trance. This resulted in Mr Kelly requiring the applicant to obtain a medical report from his GP. The resulting medical report dated 24 November 2000 was, by Doctor Johnston's evidence, unreliable since the applicant accepted before us that he had not been fully candid with his GP as to the degree of severity of his condition on 19 November 2000. The fifth Stage (ii) diabetic episode occurred between 19 November 2000 and 27 April 2001, and Mr O'Kane witnessed "five or six" such episodes in all. One such episode occurred in or about February 2001, when Mr O'Kane noted to Mr Kelly how aggressive the applicant was towards those trying to assist him. The sixth such episode occurred whilst the applicant was using the forklift before 27 April 2001. On that occasion, he was on the forklift with 1¼ tonnes of timber 16 feet aloft. Mr McCutcheon and Mr Devlin all witnessed the applicant in a statue-like trance on that occasion; the applicant was slumped over the wheel of his forklift truck, was unresponsive, sweating and pale. The tribunal prefers the evidence of Mr McCutcheon and Mr Devlin to that of the applicant, who felt the attack was not as severe as it had been made out to be. However, the applicant conceded that he could not recall each and every moment of these episodes. The seventh Stage (ii) hypoglycaemic episode occurred around 10am on 27 April 2001. This was typical of the applicant's mid-morning hypoglycaemia, and was witnessed by Mr Kelly and Mr McCutcheon. The weight of the evidence leads the tribunal to the determination that the episode on 27 April 2000 was a Stage (ii) attack. When he recovered after twenty minutes of so, the applicant's limited self-insight into his condition adduced the response "there's absolutely nothing wrong with me. There never has been anything wrong. I never took a turn". The evidence also suggests that a further, eighth, diabetic Stage (ii) episode occurred on 9 June 2001 when the applicant collapsed whilst working for his new employer. When the tribunal considered that the applicant had at least six Stage (ii) episodes between 7 August 2000 and 9 June 2001, it contrasted this with the evidence of Professor Bell when he stated that even one such severe episode per year would give a medical advisor cause for concern. Therefore, it was entirely reasonable for the respondent to be sufficiently concerned after the incident on 19 November 2000 as to require a GP medical, and likewise to require the applicant to attend the company physician after the incident on 27 April 2001. Albeit that these events were exacerbated by the applicant's new medication, the tribunal determines that the applicant had not (and, before us, has not) displayed an appropriate self-insight into his condition and its severity at the time of his employment with the respondent. Such lack of insight is corroborated by the fact of Doctor Rooney's letter of 9 November 2001 which notes that Mr Scott had not attended the Diabetic Clinic from June 2000 and would, therefore, not be regularly reviewed thereafter.
F.	The Originating Application in this complaint asserts the respondent did not make reasonable adjustments to accommodate his disability, pursuant to Section 6 of the 1995 Act, which provides:-

6 (1) Where:-

(a) any arrangements made by or on behalf of an employer, or

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

place 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 arrangements or feature having that effect.

Section 6(3) of the 1995 Act provides examples of the steps an employer may take in respect of such adjustments, as follows:-

6 (3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with sub-section (1):-

(a) making adjustments to premises;

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

(c) transferring him to fill an existing vacancy;

(d) altering his working hours;

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

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

(g) giving him, or arranging for him to be given, training;

(h) acquiring or modifying treatment;

(i) modifying instruction or reference manuals;

(j) modifying procedures for testing or assessment;

(k) providing a reader or interpreter;

(l) providing supervision.

G.	In respect of the duty on the respondent to make reasonable adjustments, the tribunal is unanimously satisfied that the respondent met this requirement insofar as follows:-

(i)	By his own admission, the applicant did not request any such specific adjustments during the course of his employment;
(ii)	Pursuant to Section 6(3)(b) Mr Kelly was, in fact, sharing the applicant's duties in moving the doors on 27 April 2001, and was keeping an eye on him throughout, as he always did;
(iii)	The applicant was not computer-literate and could not have taken up counter-sales duties, and it is not reasonable to require the respondent to create a new job in order to satisfy the requirement of Section 6(3)(c) of the 1995 Act;
(iv)	In any event, in the course of his employment, the applicant had not identified any existing alternative duties he could fill, pursuant to Section 6(3)(c) of the 1995 Act;
(v)	Mr Devlin had indicated to the applicant that he would cover for him if he were late because of the importance of consuming his breakfast in the mornings, and likewise at break times. Albeit the applicant appears never to have availed of this offer, the tribunal determines the respondent and its workforce satisfies the requirements of Section 6(3)(d) of the 1995 Act in this regard;
(vi)	The respondent allowed the applicant to be absent from his forklift driving duties following the incident on 19 – 24 November 2001 pending assessment of his diabetes by his GP, pursuant to Section 6(3)(f) of the 1995 Act;
(vii)	The medical report from Doctor Johnston, dated 24 November 2001, did not identify any specific adjustments to be made by the respondent, pursuant to Section 6(3) of the 1995 Act;
(viii)	Mr O'Kane had ensured that there was Lucozade, sweets, chocolate and Hypogeal in his desk drawer. Moreover, both he and Mr Kelly had continually stressed to the applicant the importance of not missing breakfast and of the fact that he should always ensure he had adequate and regular tea breaks. The tribunal determines that this advice, albeit shunned, satisfied the reasonable response required off the respondent, pursuant to Section 6(3)(f) of the 1995 Act;
(ix)	Mr Kelly continually kept an eye on the applicant, and on two occasions reminded all staff to do likewise and ensure the applicant was given opportunity to take his tea breaks, pursuant to Section 6(3)(l) of the 1995 Act;

H.	The tribunal determines that the respondent's request that the applicant should obtain a GP medical after the incident on 19 November 2000 was justified treatment of the applicant, pursuant to Section 5(1) (b) of the 1995 Act. The applicant accepted before us that the incident on 19 November 2000 would give an employer cause for concern inasmuch as he could have dropped something off the forklift he was using when he succumbed to hypoglycaemia, and that that may have caused injury to himself or another worker. Likewise, the applicant accepted that this scenario on 19 November 2000 could have been a very serious situation, and we noted the applicant's concession that he could not say how responsive he was on that occasion. Therefore, the tribunal determines that the applicant has failed to satisfy it that there was less favourable treatment, contrary to the 1995 Act on that occasion.
I.	Likewise, the tribunal determines that the respondent's request that the applicant should attend its company physician, at the company's expense, after the incident on 27 April 2001 was utterly justified treatment of the applicant, pursuant to Section 5(1) (b) of the 1995 Act. This was the last in a series of Stage (ii) episodes within a year, one of which per annum would have given Professor Bell cause for concern. The respondent had to balance the applicant's rights and entitlements against that of its other employees and customers (including their children) all of whom had access to the areas over which the applicant operated a forklift truck. Mr Kelly, in requiring the applicant to attend the company physician, was mindful of Health & Safety duties to employees and members of the public. In this regard, the tribunal has had regard to Section 59(1)(a) of the 1995 Act which provides:-
	59(1) Nothing in this Act makes unlawful any act done- in pursuance of any enactment; or in pursuance of any instrument made by a Minister of the Crown under any enactment; or to comply with any condition or requirement imposed by a Minister of the Crown (whether before or after the passing of this Act) by virtue of any enhancement ...
	Paragraphs 913-921 of Butterworths Discrimination Law provide that:- [913-920] The rights created by the Disability Discrimination Act 1995 must be considered in the context of the employer's wider duties to employees generally and the general public. Employers will all have duties to ensure the health and safety of workers and others so far as its undertaking might expose them to risks and to carry out risk assessments to that end. The Court of Appeal rejected the contention that employment tribunals may decide whether an employer's risk assessment is correct[1]. … [921] A contention that an additional health and safety risk is posed by a disabled person must be genuine, must relate to the particular circumstances of the employee's disability and work (rather than be based on a general assumption) and must be of substance in order to provide justification. However, the judgement as to whether to take a health and safety risk or not is one which health and safety experts may not agree upon. In today's safety-conscious workplace, all health risks will be (or should be) very small indeed. The obligation on the employer is generally to reduce such risks to the lowest level that is reasonably practicable to achieve. In London Underground v Bragg[2] the EAT found that a tribunal had failed to consider that a safety risk may be substantial notwithstanding that the risk is small if the consequences of the risk occurring might be catastrophic. Referring to Paris v Stepney Borough Council [3] the EAT commented that a prudent employer may be influenced not only by the degree of possibility of an accident occurring but also by the gravity of the consequence if it does occur. The risk related to the disability might be thought to be very small but the consequences that may be caused if it did could be extremely serious… Construing Section 59 above, and balancing the applicant's rights against the respondent's duties to others, we are unanimously of the determination that Mr Kelly's response was measured, appropriate, reasonable and justified within the meaning of Section 5(1) (b) of the 1995 Act. In reaching this determination, the tribunal has had regard to Section 5(3) of the 1995 Act which provides that "treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial". We have been mindful of the dictum of the EAT in H J Heinz v Kendrick[4], wherein it was laid down that the test for justification was not one where tribunals can adopt a broad approach to justification based on their our own views as an industrial jury. This interpretation of the statute has been affirmed in the Court of Appeal in England by Pill LJ in Jones v Post Office[5]. The respondent's treatment of the applicant pertained to his individual circumstances, and there were very substantial grounds for requiring him to be certified fit for driving duties on both 19 November 2000 and 27 April 2001. The respondent was, thus, justified in its treatment of the applicant. Therefore, the tribunal determines that the applicant has failed to satisfy it that there was less favourable treatment, contrary to the 1995 Act on either 19 November 2000 or 27 April 2001, or – indeed – on any occasion during the course of his employment by the respondent.
J.	Whilst the tribunal would register concern that there was no personnel file kept in respect of the applicant, nor were there minutes of management meetings kept, nor any formal health and safety risk assessment carried out by the respondent as to the potential risk to himself and/ or others, it has also remembered that the applicant indicated at his job interview that his disability was controlled, and maintained this stance until the last day of his employment, 27 April 2001. On that latter occasion he had said to Mr Kelly that there was nothing wrong with him and that there never had been anything wrong with him.
K.	It is clear from our findings of fact [Paragraph 12. above] that the applicant operated forklift trucks that could lift 4½ tonnes of materials to a height of 16 feet. This machinery was operated in an area frequented by not only fellow employees, but also members of the public (and their children) throughout the week, particularly on Saturday mornings. The applicant suffered a hypoglycaemic incident on 19 November 2000 whilst operating one of these forklift trucks, which precipitated Mr Kelly to consider the health and safety risks to (a) other employees and (b) customers. On foot of this incident, Doctor Johnston had prepared a medical report dated 24 November 2000. The applicant accepted that, when he had consulted Doctor Johnston for the purposes of obtaining this medical report, he had not told Doctor Johnston that he had experienced (i) sweating, (ii) trembling and (iii) occasional loss of control. There was another hypoglycaemic episode involving the applicant when he was driving a forklift truck in the period running up to 27 April 2001[6], when the applicant appeared to Mr Devlin to be statue-like. Notwithstanding the other incidents found by the tribunal, we are of the view that these incidents prompted Mr Kelly to explain to the applicant the serious health and safety implications to himself, to other employees and to members of the public who were respondent customers. Mr Kelly was so concerned about these risks that he felt that, if ignored, he could be sentenced to a term of imprisonment. This in turn led Mr Kelly to request the applicant to attend a company physician. The determination of the tribunal is that this was a reasonable request by a prudent employer in the circumstances of the applicant's employment. To have continued without requesting such a medical would have been tantamount to the respondent failing to reduce the potential risk to a minimum. To continue to allow the applicant to operate such machinery without medical verification as to its health and safety risk may have resulted in a serious, possibly fatal, incident to either the applicant, a fellow employee or a member of the public. As such, the actions of the respondent on 27 April 2001, in requiring the medical from the company physician, were entirely justified pursuant to Article 5(1) (b) of the 1995 Act, and especially when taken in view of the overriding requirements provided by Section 59 of the 1995 Act.
L.	The tribunal prefers the evidence given it by Mr Kelly and Mr Devlin as to the sequence of events on 27 April 2001. The tribunal determines that the applicant walked off the premises on 27 April 2001 and said "I'm leaving" to Mr Devlin on the way out. By returning to clear out his locker at 1.30 – 2 pm on 27 April 2001, the applicant signalled that he was leaving the respondent's employment, and this conduct is confirmed by his statement to Shane Devlin when he said "I might have news of another job next week with a kitchen outfit. I have to make a call". The tribunal has determined at Paragraph G. above that the respondent went out of its way to make reasonable adjustments to accommodate the applicant's disability, pursuant to Section 6 of the 1995 Act. Moreover, the determination of the tribunal is that the applicant, by his own conduct on 27 April 2001, left his employment of his own volition when faced with the reasonable and prudent requirement to undergo a medical examination by a company physician at its own expense. The tribunal was left with the impression that, from 12 December 1999, and certainly throughout the course of his employment with the respondent, and up to 9 June 2001, the applicant was, perhaps, labouring under a much reduced self-insight into the severity of his diabetes[7]. Such impaired self-knowledge is, according to Professor Bell, symptomatic of those who suffer from Stage (ii) hypoglycaemic episodes, particularly in the phase immediately after such an episode.
M.	By reason of the foregoing, the unanimous determination of the tribunal is that the applicant was not dismissed from his employment. This determination is fortified by the fact that the applicant did not seek to appeal any perceived dismissal, even though he had received, and signed, written terms and conditions of employment that provided at Section 8.5 such a right of appeal. The tribunal did not prefer the evidence that the applicant was unaware of such a right of appeal.
N.	Thus, the tribunal determines that the applicant was not unfairly dismissed, dismissed in violation of Section 4(2) (d) of the 1995 Act, nor dismissed in breach of his contract of employment with the respondent. The tribunal has determined at Paragraph G. above that the respondent made reasonable adjustments to accommodate the applicant's disability, pursuant to Section 6 of the 1995 Act. The respondent's treatment of the applicant during the course of his employment was justified within the meaning of Section 5(1) (b) of the 1995 Act. Accordingly, the respondent did not discriminate against the applicant pursuant to Section 5 of the 1995 Act.
O.	Hence, the tribunal thus dismisses the applicant's complaint in its entirety.
P.	No further or other Order is made.

Chairman:

Date and place of hearing: 11, 12, & 13 and 16 June 2003 and 8 September 2003, Belfast

Date decision recorded in register and issued to parties:

Note 1   ibid.    [Back]

Note 2   (1999) IRLB 628 10, EAT    [Back]

Note 3   [1951] AC 367, HL    [Back]

Note 4   [2000] IRLR 144, EAT    [Back]

Note 5   [2001] IRLR 384, CA    [Back]

Note 6   see paragraph 26 of the Findings of Fact above    [Back]

Note 7   See, for example, the incident on 12 December 1999, as recorded in paragraph 6 above.    [Back]