Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REFS: 471/06

225/06

CLAIMANT: Regina Walker

RESPONDENT: HBOS PLC

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant's complaint of discrimination contrary to the Disability Discrimination Act 1995 is in time.

Constitution of Tribunal:

Chairman (sitting alone): Mrs A Wilson

Appearances:

The claimant was represented by Ms A Collins, Solicitor, of Alana Jones, Solicitors.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Wilson Nesbitt, Solicitors.

The issues

1. This is a pre-hearing review conducted by a Chairman sitting alone under Rule 18 of Schedule 1 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 to determine the following matters:-

1. Was the claimant's claim of discrimination contrary to the Disability Discrimination Act 1995 presented within the specified time limit?

2. If not, is it just and equitable, in all the circumstances of the case, for an industrial tribunal to consider this claim despite the fact that it is out of time?

Sources of evidence

2. The tribunal considered the claim to an industrial tribunal, the response, the oral evidence presented by the claimant and extracts from the bundle of documents produced by the claimant with the agreement of the respondent and referred to during the course of the hearing.

Findings of relevant fact

3. The claimant alleges that she suffers from dyslexia and depression and that these conditions amount to disabilities within the meaning of the Disability Discrimination Act 1995.
4. The claimant commenced employment with the respondent as a Customer Sales Assistant on 14 January 2002.
5. Her duties for the most part involved telephone calls with customers and working on-line dealing with day-to-day banking transactions in response to customer requirements.
6. This included work in relation to transactions known as CHAPS and TT.
7. The claimant alleges that she found the work relating to CHAPS and TT particularly difficult and that she was slow in executing it by reason of her alleged disability. This resulted in customers becoming irate on a lot of occasions.
8. The claimant alleges that she received inadequate training from the respondent in relation to CHAPS and TT and that no consideration was given to her specific training needs arising as a result of her alleged disability. It is her case that this amounted to a breach of Section 6 of the Disability Discrimination Act 1995, a failure by the respondent to make reasonable adjustments in accordance with their duty under the Act.
9. In or around September 2005, a system of managing customer calls known as Perfect Call was put in place and all employees were monitored in the use of this system by the respondent. It is the claimant's case that, given her alleged disability, she was given inadequate training in relation to this system and monitored in her use of this system prior to receiving any training. The failure to provide adequate training is alleged to amount to a failure to provide reasonable adjustments under Section 6 of the Act, and assessment of the claimant prior to receiving adequate training is alleged to amount to discrimination under Section 9 of the Act.
10. Following monitoring of the claimant's telephone calls a number of issues of concern to the respondent emerged.
11. As a result the claimant was invited to an investigative meeting on 21 October 2005.
12. At the conclusion of this meeting the claimant was informed that she was to be suspended on full pay pending further investigations. Suspension took effect from that date, ie 21 October 2005.
13. The claimant raised a grievance with the respondent on 9 November 2005 against her team leader, Lisa Lavery. The tribunal notes however that there is no reference in this grievance letter to the claimant's alleged disability. A formal grievance meeting and a disciplinary meeting followed on 18 November 2005. It is the claimant's case that this meeting and hearing were tainted by discrimination in that they proceeded without reasonable adjustments having been made for the claimant as required under Section 6 of the Disability Discrimination Act. This meeting and hearing resulted in the claimant's dismissal with effect from 3 December 2005.
14. The letter of dismissal which issued to the claimant, dated 29 November 2005, advised that she had been dismissed for a number of reasons, including:-

(a) You failed to provide any satisfactory reason with regard to blindly transferring calls to other departments or for transferring calls back into the bank account queue without attempting to deal with them. These are clearly breaches of procedure and have a detrimental impact on both your colleagues and customers.

(b) I have found that between 16 and 23 September 2005 there were 13 calls released and between 13 and 15 October 2005 there were 10 calls released when you clearly did not have any explanation. I conclude in these instances that you deliberately chose not to deal with our customers and this is gross misconduct.

15. It is the claimant's case that dismissal in these circumstances was related to the difficulty she had with CHAPS and TT which in turn was due to her alleged disability and that the date of dismissal was the date of the last act in a series of discriminatory acts.
16. It is the respondent's case, on the other hand, that the date of the relevant discriminatory act for the purpose of deciding time limits is 21 October 2005 being the date upon which the claimant was suspended from work. It is their case that this complaint is one of failure to make reasonable adjustments under Section 6 of the Disability Discrimination Act 1995 and that there was no requirement for reasonable adjustments after that date because the claimant was no longer at work. It was further contended by the respondent that during the course of the disciplinary procedures followed that there was no failure on the part of the respondent to comply with any Section 6 duty. However it is not within the jurisdiction of this tribunal to decide whether there was a breach of the Disability Discrimination Act 1995 in the manner in which the disciplinary procedures were conducted. It is simply a question of whether there was an act during this period which the claimant alleges amounts to discrimination contrary to the legislation so as to bring the complaint within the prescribed time limit.

The law

17. Section 4(2)(d) of the Disability Discrimination Act 1995 provides as follows:-

It is unlawful for an employer to discriminate against a disabled person whom he employs by dismissing him or subjecting him to any other detriment.

Section 5 of the Act defines the meaning of discrimination.

Section 5(1) provides as follows:-

For the purposes of this part, an employer discriminates against a disabled person if –

(a) for a reason related to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b) he cannot show that the treatment in question is justified.

Section 5(2) – For the purposes of this part, an employer also discriminates against a disabled person if –

(a) he fails to comply with a Section 6 duty imposed on him in relation to the disabled person; and

(b) he cannot show that his failure to comply with that duty is justified.

A Section 6 duty under the Act is a duty to make reasonable adjustments.

18. Having heard the evidence in this case and considered the complaint, the response and the documentation produced, the tribunal conclude that this complaint includes a complaint of discrimination contrary to Section 4(2) of the Act and a complaint of failure to comply with Section 6 of the Act.
19. In reaching this conclusion the tribunal were influenced by:-

(i) the claimant's allegation that the respondents failed in their duty to make reasonable adjustments under Section 6 of the Disability Discrimination Act 1995;

(ii) the claimant's allegation that her suspension on 21 October 2005 was as a result of her inability to adequately carry out her duties in relation to CHAPS and TT which in turn was a result of the respondent's failure to provide training in compliance with their duty under Section 6 of the Act;

(iii) the claimant's belief following consideration of the dismissal letter of 29 November 2005 and in particular of the paragraphs lettered a) and b) that her dismissal was for a reason related to her alleged disability as set out in the letter of dismissal, and her contention that this amounts to a breach of Section 4 of the Act.

20. The tribunal finds also that there is a link between the alleged failure to make reasonable adjustments in or around September and October 2005 and the dismissal in December 2005 so as to amount to an act extending over a period ending on the date of dismissal, eg a continuing act. In finding this the case the tribunal were influenced particularly by the case of Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96 and the explanation by Lord Justice Mummery for a continuing act:-

" … the burden is on [the applicant] to prove, either by direct evidence or by inference from primary facts, that the numerous alleged incidents of discrimination are linked to one another and that they are evidence of a continuing discriminatory state of affairs covered by the concept of an act extending over a period."

"I regard this as a legally more precise way of characterising her case than the use of expressions such as 'institutionalised racism', 'a prevailing way of life', 'a generalised policy of discrimination' or 'climate' or 'culture of unlawful discrimination'."

It also stated:-

"The question is whether that was 'an act extending over a period as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed."

The tribunal finds on balance (notwithstanding the fact that the letter of grievance dated 9 November 2005 makes no reference to the claimant's alleged disability, a fact that the tribunal would take into account had it to determine the time issue under the just and equitable test) that the correct date of the discriminatory act for the purposes of these proceedings is 3 December 2005 being the date upon which the claimant's employment was terminated.

The time limits

21. Section 8 of the Disability Discrimination Act 1995 provides that a complaint by any person that another person has discriminated against him in a way which is unlawful under Part II of the Act (discrimination by employers), may be presented to an industrial tribunal.

Schedule 3 at Paragraph 3(1) provides that a tribunal shall not consider a complaint under Section 8 unless it is presented before the end of the period of three months beginning when the act was complained of was done.

Paragraph 3(2) provides that a tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, that it is just and equitable to do so.

Paragraph 3(3)(b) provides that any act extending over a period shall be treated as done at the end of that period.

Regulation 6 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 apply the grievance procedures to these proceedings.

Regulation 15 provides that where a complaint is presented to a tribunal under a jurisdiction listed in Schedule 2 or 3 (this is a complaint listed in Schedules 2 and 3) and either of the grievance procedure is the applicable statutory procedure and the circumstances specified in Paragraph 3 apply, the normal time limit for presenting a complaint is extended for a period of three months beginning with the day after the day on which it otherwise would have expired.

22. The circumstances specified in Paragraph 3 are that that the employee presents a complaint to the tribunal:-

3(a) within the normal time limit for presenting the complaint but in circumstances in which Article 19(2) or (3) or Article 20(1) or (2) of the Order of 2003 does not permit him to do so;

3(b) after the expiry of the normal time limit for presenting the complaint, having complied with Paragraph 6 or 9 of Schedule 1 in relation to his grievance within that normal time limit;

Paragraph 3(b) applies to this case.

23. The claimant raised a grievance in accordance with Regulation 15 by letter dated 17 February 2006. This was within the normal time limit for presenting a complaint to an industrial tribunal based on 3 December 2005 as being the date of the relevant discriminatory act. The complaint to an industrial tribunal is dated and was received by the tribunal on 21 April 2006. This is within the extended time limit applicable under Article 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 and as a consequence the tribunal finds that this complaint is in time. In these circumstances the question as to whether time should be extended on just and equitable grounds does not arise.

Chairman:

Date and place of hearing: 15 September 2006, Belfast

Date decision recorded in register and issued to parties: