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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Neeson v Department for Social Development [2005] NIIT 2787_02 (14 June 2005)
URL: http://www.bailii.org/nie/cases/NIIT/2005/2787_02.html
Cite as: [2005] NIIT 2787_2, [2005] NIIT 2787_02
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- The tribunal heard evidence from the claimant; Ms R McKay, the claimant's principal carer; Ms M Bowman, a staff care officer of the respondent and Ms O Nugent, a consultant clinical psychologist who has treated and assisted the claimant.
- The tribunal also heard evidence on behalf of the respondent from Mr O McHugh, who was the manager of the Falls Road Social Security Office; Mrs P Canning, Deputy District Manager for West Belfast and Lisburn, and Ms M Moreland, the claimant's line manager in 2002.
- The tribunal was provided with two agreed bundles of documents.
- The issues for determination in this case were:-
- The applicable law is contained in the Disability Discrimination Act 1995. Section 1 defines disability. Section 4 provides that it is unlawful for employers to discriminate against a disabled person. Section 5(1) and 5(2) define discrimination. Section 5(2) provides that an employer also discriminates against a disabled person if he fails to comply with a Section 6 duty. Section 6 refers to the duty on employers to make adjustments and in particular section 6(3) sets out examples of the type of adjustments which might be expected in order to comply with the duty to make reasonable adjustments. Paragraph 3 of Schedule 3 to the Act sets out the requirements with regard to time limits for presenting a complaint.
- The tribunal referred the parties to the Code of Practice for the Elimination of Discrimination in the Field of Employment Against Disabled Persons. Neither party availed themselves of the opportunity to address the tribunal on the Code of Practice. However, the tribunal took the Code of Practice into account when coming to its decision.
- The claimant had been employed by the respondent since 1984. She had worked in the Falls Road Social Security Office for some considerable time. The claimant has had a disability since 1994 which was a mental impairment which impacted substantially and adversely on her ability to carry out normal day-to-day activities and particularly her ability to cope with unexpected and unprepared-for change. The claimant's disability has been recognised by the respondent's Occupational Health Advisers and by the respondent as being a disability within the meaning of the Disability Discrimination Act 1995 since 1998.
- In 1998 the claimant returned to work after a lengthy period of absence due to post-traumatic stress disorder. This manifested itself and continues to manifest itself by way of anxiety and depression. An Occupational Health doctor's report obtained by the respondent in early 1998 recommended that the claimant should return to work to a post not involving face-to-face client contact and that her return to work might need to be phased. Despite this, on the claimant's return to work she was put in a post of Client Adviser, although on reduced hours. This post entailed face-to-face contact with the public each day. The claimant was also put under pressure at this time to increase her hours. These arrangements put the claimant under added stress and a meeting was arranged between the claimant, her primary carer and persons from the respondent's Personnel Department to deal with this in October 1998. Although it was accepted at that meeting that the claimant was disabled, little thought seems to have been given by the respondent to the Occupational Health Doctor's recommendations.
- The claimant continued in the Client Adviser post after that meeting. She was moved to a post involving decision-making which had considerably less face-to-face contact with the public in December 1998. The claimant performed well in this role, as demonstrated by her promotability assessment in April 2001, carried out by Ann Mooney, her line manager at the time and Pamela Diffin, the counter-signing officer, and its review in November 2001 when she was regarded as very competent or competent in the competencies assessed by her Staff Officer, Pamela Diffin.
- From 4 February 1999 until 14 February 2001 the claimant had a relatively small number of days off due to sick leave. From 14 February 2001 until end of December 2001 her sick leave record showed more absence. Her attendance was good in January/February 2002. She was off work for effectively the whole month of March, partly due to a change of medication. During April and May 2002 she was mainly at work. From June to September 2002 she had no days off due to sick leave but some time off for annual leave and term-time working. From November 2002 the claimant has not been at work at all and this state of affairs continues. When the claimant became concerned about events at work she would become very agitated to the extent of shouting and swearing at other staff and was calmed down on occasions by Mrs Canning.
- Between her return to work in 1998 and October 2002 the claimant had frequent changes in her line management structure. She had seven line managers and four Staff Officers. This caused the claimant considerable problems because of her difficulty in adapting to change. The claimant found this difficult because there was no systematic way for each new manager to be made aware of her particular difficulties and the adjustments she required on account of her disability, except by the claimant informing these managers herself. Some of her line managers and supervisors, and particularly Mrs Canning and Ms Tolan, her line manager from December 2001, were very supportive. No training with regard to mental health issues or awareness has been provided in the office where the claimant worked despite the claimant and her carer's suggestions, particularly at a meeting in March 2002, that this would be helpful.
- The claimant continually requested training from her return to work in 1998. With few exceptions this was not forthcoming. In February 2002 the claimant requested Social Fund training. This was a five day course which the claimant, who was still on part-time hours due to her disability, was unable to undertake. She spoke to Mr McHugh about adjustments being arranged to take account of her situation. He made several less than practical suggestions as to how she could obtain this training – such as attending mornings only or getting others to take notes for her. As a result of this unhelpful attitude, the claimant withdrew her request to attend this course. She was, however, facilitated in attending a mandatory two day course for staff who had face-to-face contact with the public. This was rearranged after Ms Tolan intervened and took place over four half-days in May 2002.
- Mr McHugh, who was the claimant's counter-signing officer, was appointed in March 2001. Part of his job was to oversee changes which were being required as a result of the Welfare Reforms. From the end of 2001 and well into 2002 a series of wholesale welfare reforms were being introduced by the Government. The implementation of these Welfare Reforms required the co-location of Social Security Agency services (ie benefit provision) with Training and Employment Agency (provision of training and employment opportunities) on single sites. In the Falls Road Office this required considerable renovation and refurbishment of the premises and necessitated staff being moved to different parts of the building as the work of refurbishment progressed.
- In December 2001 difficulties arose between the claimant and her line manager, Ann Mooney. Ann Mooney indicated to Mr McHugh that she did not feel equipped to deal with staff with the claimant's type of disability. Mr McHugh felt similarly and he discussed the problem with a representative from the Managing Attendance branch of the Department's Personnel branch.
- At the same time the claimant approached Meta Bowman of Staff Care Unit. It was agreed that the constant changes in the claimant's line management caused difficulty to the claimant and a decision was taken that a meeting would be arranged so that the claimant's needs would be put in writing and discussed with a view to having a formal document which could form the basis of a way forward and which could be provided to new line managers. The claimant had previously presented such a list to the respondent's Personnel Department but it did not appear to have been acted upon. In any event, a meeting took place on 6 March 2002 attended by Mrs P Canning, Mr O McHugh, Ms R McKay, Ms S Tolan, Ms M Bowman and the claimant.
- The meeting on 6 March 2002 was conducted informally by Mrs Canning and no notes or minutes were taken by the persons present on behalf of the respondent. It was a satisfactory meeting from the point of view that the claimant had the opportunity to raise her concerns about:
- It was considered by both sides that the meeting had clarified issues but nothing was put in writing until May, just prior to Ms Tolan leaving to go on honeymoon. In view of her departure, Ms Tolan, in conjunction with the claimant, drew up a list of measures intended to help the claimant and management with the claimant's disability in the workplace. It included, among other things, the need for communication with regard to ongoing changes in the office.
- Ms Tolan's leave created a temporary promotion opportunity. This subsequently became a temporary promotion which lasted 5½ months. The claimant was dissatisfied with the way the invitation for volunteers for this temporary promotion was handled. However, she accepted that she did not wish to put herself forward for the post. She considered, however, that she should have been invited as an individual to apply for it. In the event, there was only one volunteer, Ms Moreland, who was appointed to the post, which meant that she became the claimant's line manager. Ms Moreland was not given a copy of the guidelines drawn up by Ms Tolan. She was vaguely aware of the need to keep the claimant informed of changes which she thought she did at meetings, although she could not be sure that the claimant was actually present at the meetings and on balance the tribunal accepted that there were meetings at times when the claimant was not present.
- Over the summer there were two major changes to the locations of the workstations in the offices, one in August and one in September. The claimant asked Ms Moreland to let her know at home while she was on term-time working if there were to be any changes to the location of her workstation. Ms Moreland did not do so, with the result that the claimant arrived back at work to find that her desk had been moved, which caused her to feel agitated and very disorientated.
- The claimant was on annual leave in September. She again asked Ms Moreland before she left to let her know while she was off if there were any moves. Mr McHugh on this occasion instructed Ms Moreland to inform the claimant that her desk position was going to be moved again. Ms Moreland tried to telephone the claimant twice in the course of one afternoon, got no reply, did not leave a message on the answering machine or make any attempt to forewarn the claimant, even on the day of her return, that there had been a further change to her desk position. This caused the claimant further distress and she shouted at Ms Moreland and had an altercation with Mr McHugh.
- On 20 September 2002 Mr McHugh and Ms Moreland left the office for the day. A senior member of staff from another section enquired from the claimant as to who was in charge of the office. The claimant indicated that no one had been left in charge and then another member of staff who was temporarily promoted to the same rank as the claimant, but who had considerably less service than the claimant, declared that she had been left in charge. This was a further situation where the claimant's line management had not made her aware of a change which upset her greatly and caused her to leave the office. Both Mr McHugh and Ms Moreland claimed they had no recollection of this incident.
- The claimant went off sick on 9 October 2002. Prior to that, she had applied for a trawl for a Training Officer's position. An invitation to attend an interview for that post was sent to the claimant at her work address. It would have been normal practice for this to be forwarded to her at home because she was on sick leave. Instead, this letter from Personnel Department, marked "Personal" was left with other things under her keyboard. When the claimant did not appear for the interview she was subsequently told that she had been withdrawn from the competition. Mr McHugh was asked by the respondent's Personnel Department to investigate the failure to send the interview invitation to the claimant. He established it had been left under her keyboard. He did not take any steps to request the recruitment department to arrange another interview for the claimant.
- The representatives helpfully provided the tribunal with written submissions which are attached hereto and are intended to form part of this decision. It was agreed during the course of the hearing that the tribunal would deal with the matter of liability only at this hearing.
- The tribunal considered all of the evidence and submissions, the legislation as set out above, the Code of Practice and the Court of Appeal Decision in Hendricks -v- Commissioner of Police for the Metropolis [2003] IRLR 96.
- With regard to the allegation that the claimant was not afforded access to training and that this was a continuing state of affairs which brought the complaint within the ambit of paragraph 3(3)(b) of Schedule 3 of the Disability Discrimination Act, the tribunal was not satisfied that there was a continuous failure to provide such training. The tribunal accepted that the claimant clearly had training to undertake her job as a decision-maker which it was accepted by the respondent she did to a high standard. She also had training in the implementation of the New Deal, sufficient along with her own efforts to allow her to provide seminars to other staff on this topic. The tribunal accepted that the claimant had asked for training on several occasions in order to expand her role as a decision-maker and that this was not forthcoming. The tribunal did not accept the claimant's suggestion that she was deliberately deprived of a training opportunity when Mary Moreland spoke to TS after a meeting about a particular case. The tribunal considered that the respondent's failure to act on the claimant's requests for training were more in the nature of individual omissions between 1998 and 2001 and could not be regarded as evidence of a continuous discriminatory state of affairs such as was established in the Hendricks case.
- The tribunal accepted that the placing of the claimant in 1998 in a post which entailed face-to-face contact with the public in clear contravention of the respondent's Occupational Health Service's recommendation was an act of discrimination in its failure to make the reasonable adjustment recommended. The tribunal however considered that this was a one-off act which was remedied in December 1998 and as such is clearly out of time. The tribunal considered whether it would be just and equitable to extend the time in relation to this aspect of the claim but concluded it would not, because the claimant, with the benefit of assistance from her primary carer, had taken steps around that time to investigate her rights to complain to a tribunal about her treatment and had decided not to make such a complaint.
- The tribunal however found that the situation which arose from December 2001 did demonstrate an ongoing continuous state of affairs and should therefore be treated as an act extending over a period and so presented in time in accordance with paragraph 3(3)(b) of Schedule 3 of the Disability Discrimination Act 1995. The tribunal accepted that the treatment of the claimant over the period from December 2001 to October 2002 was less favourable treatment of the claimant for a reason related to her disability because it placed her at a substantial disadvantage in comparison to persons who were not disabled because the respondent failed to comply with its Section 6 duty to make reasonable adjustments and the respondent has not shown that this failure was justified. The tribunal therefore finds that the claimant was discriminated against by the respondent for a reason related to her disability.
- The tribunal found that the respondent's failure to make adjustments to allow the claimant to undertake the Social Fund training in February 2002 was discriminatory for a reason related to her disability in that she could not attend the training for full days and Mr McHugh did not make a proper effort to ensure that a reasonable adjustment was made to allow the claimant to participate in the training at that time. The tribunal also accepted, in the absence of any satisfactory explanation as to why it had occurred, that the failure to forward the invitation to the interview to the claimant while she was off on sick leave in October 2002 was for a reason connected with her disability.
- In relation to the physical refurbishment work being carried out in 2001/2002, the tribunal took into account that the respondent and the claimant's line management were well aware that there was about to be a very busy, disruptive and unsettling time in all Social Security Offices with the implementation of the Welfare Reforms and the co-location of the JobCentres and Benefit Agencies on the same sites. They knew that the claimant had a disability which required her to be given proper advance notice of intended change relating both to change of personnel and physical changes which affected her. Despite that knowledge, little was done to keep the claimant informed personally by her local management of the ongoing plans and actual implementation of the changes. This led to the claimant becoming agitated around the middle of December 2001 and seeking assistance from the Staff Care Unit which ultimately led to the meeting in March 2002 where the claimant again provided management with a list of commonsense adjustments which she felt were necessary to allow her to do her job without undue stress. Despite the sense of satisfaction felt by the persons who had attended that meeting, the events set out above from May through to November occurred, due almost entirely to the failure on the part of the management in the Falls Road Social Security Office to ensure that the reasonable adjustments, as put forward by the claimant at the meeting in March and as documented by Ms Tolan, were adhered to.
- The tribunal accepted that the leaving of an officer with less service in charge in September 2002 rather than the claimant was also due to the claimant's disability.
- The tribunal did not accept that the respondent's failure to issue an individual invitation to the claimant in relation to the acting up post was because of her disability. The invitation had been open to everyone including the claimant and she had not indicated an interest.
- The respondent, through its line managers, suggested that their failure to implement the reasonable adjustments, which had been agreed to, was because of the busyness of the office in that time of change. The tribunal did not accept that that reason was sufficient to justify the respondent's failure to carry out its obligation to make the reasonable adjustments it had agreed to. The tribunal therefore concluded that the respondent had unlawfully discriminated against the claimant for a reason related to her disability because of its failure to make reasonable adjustments and the claim in relation to this part of the complaint is therefore allowed.
- This matter will now be referred back to the tribunal to consider the matter of remedy.
CASE REF: 2787/02
CLAIMANT: Frances Neeson
RESPONDENT: Department for Social Development
The unanimous decision of the tribunal is that the respondent unlawfully discriminated against the claimant on the grounds of her disability contrary to sections 4(2) and 5(1) and (2) of the Disability Discrimination Act 1995.
Appearances:
The claimant was represented by Mr P Mackel of NIPSA.
The respondent was represented by Mr T Boyce, Barrister-at-Law, instructed by the Departmental Solicitor.
i. Whether the claimant was treated less favourably by the respondent for a reason relating to her disability than a person would have been treated who did not have a disability in relation to the respondent's failure to provide opportunities for training for the claimant since 1998 (Section 4(2) and 5 of the Disability Discrimination Act 1995).
ii. Whether the respondent made reasonable adjustments to prevent the claimant being placed at a substantial disadvantage in comparison to persons who were not disabled from her return to work in 1998 until 12 December 2002 (the date of her claim) (5.5(2) and 5.6 of the Disability Discrimination Act 1995).
iii. Whether the matters of which the claimant complains which occurred prior to 12 September 2002 are outside the time limits for bringing a claim and, if so, whether it would be just and equitable to extend the time for bringing the claim.
iv. Whether the matters of which the claimant complains are acts extending over a period which should be treated as done at the end of that period and therefore within the time limits laid down in Schedule 3 to the Disability Discrimination Act 1995.
v. Whether in particular the respondent's failure to act on the agreement reached in March 2002 to keep the claimant fully informed of proposed changes to the office environment was in contravention of a reasonable adjustment previously agreed to give adequate notice of change.
vi. Whether the respondent's leaving of a colleague officer with less service, although temporarily promoted to the same grade as the claimant, in charge of the section in which the claimant worked on a day in September 2002 was because of the claimant's disability and whether it was also a contravention of a reasonable adjustment previously agreed to give her notice of change.
vii. Whether the respondent failed to give the claimant the opportunity to apply for an acting up opportunity which was due to last for a period of 5½ months in May 2002.
viii. Whether the respondent's failure to forward notification to the claimant at home about an arranged interview for a post while she was on sick leave was less favourable treatment because of her disability in that she was off work for a reason related to her disability.
The Facts
(a) the need for procedures to be drawn up for when changes in management occurred to ensure new managers were aware of her needs;
(b) the need for the claimant to have notice in advance of such changes to give her time to adapt;
(c) that the claimant's work should be reviewed regularly;
(d) that training should be provided for the claimant, taking into account that she could only attend for half days; and
(e) that there should be proper consultation with the claimant in advance of the impending building and reorganisation plans, particularly with regard to physical changes to her work station and its proposed location in any moves.
Chairman:
Date and place of hearing: 6-10, 13 and 14 June 2005, Belfast
Date decision recorded in register and issued to parties: