Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2557/06

CLAIMANT: Conor Michael John Browne

RESPONDENT: McGimpsey Brothers (Removals) Limited

DECISION

It is the unanimous decision of the tribunal that the claimant was discriminated against by the respondent on the grounds of the claimant's disability, and was not able to claim the right not to be unfairly dismissed as he did not have sufficient service. The respondent is ordered to pay the sum of £10,280.39 to the claimant.

Constitution of Tribunal:

Chairman: Ms Crooke

Appearances: Mrs Walker

Mr McAnoy

The claimant appeared in person and represented himself.

The respondent was represented by Ms L Sheridan of Peninsula Business Services Ltd.

SOURCES OF EVIDENCE

1. The tribunal heard evidence from the claimant himself and from Mr Stephen McGimpsey and Mr Paul McGimpsey of the respondent company. Additionally the tribunal had an agreed booklet of documentation before it.

THE CLAIM AND THE DEFENCE

2. The claimant contended that he was unfairly dismissed and discriminated against by the respondent in connection with his type 1 diabetes. The respondent denied this contention, arguing that the claimant had been fairly dismissed for his conduct.
3. In his claim to the tribunal the claimant had also indicated that he considered that he had not received a full week's notice pay on termination of employment. When it was explained in the hearing that holidays that were taken but not accrued had been deducted, the claimant did not pursue the matter further. Therefore the tribunal is making no determination in relation to this claim.

THE LAW

4. The claimant contended that the statutory basis for his claim was found in section 5(2)(a), section 6(1)(a) and section 6(3)(f) of the Disability Discrimination Act 1995. These state as follows:-

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

5(2) "he fails to comply with a section 6 duty imposed on him in relation to the disabled person; …"

"6(1) (a) where any arrangements made by or on behalf of an 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 and

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) …

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

5. The tribunal in reaching its decision also had regard to the case of Igen -v- Wong [2005] IRLR 258CA.
6. The tribunal offered an opportunity for submissions to be made in connection with the issue of the burden of proof, but this was not taken up by the parties.

FINDINGS OF FACT

7. In April 2006 the claimant accepted full-time work with the respondent as a removalist.
8. There was a note on his personnel file that on 25 July 2006 the claimant refused to go on a job to the United Kingdom mainland and failed to follow proper absence notification procedures.
9. On 31 July 2006 there was a company training session in which the leave absence request procedure was considered, and the claimant was present at this training session. He signed a document agreeing to put the new procedure into practice.
10. On 21 August 2006 there was a second training session which included the leave absence request procedure. Once again the claimant was present and signed the document agreeing to put the procedure into practice.
11. On 31 August 2006 together with two others, the claimant was found by Paul McGimpsey to have stopped in a garage on route for a job. Later the same day, the claimant was telephoned by John Hendry the foreman (who did not give evidence to the tribunal) who requested that the claimant go to the United Kingdom mainland on a job for a period covering from 4 – 10 September 2006. The claimant, who had already had one appointment to have his blood taken at a clinic in Bangor, refused to take up this job, indicating that he had previously told Mr Hendry that he was taking time off to attend a diabetic review assessment on 5 September 2006.
12. Later on the same day and while the claimant was on route with others to a job in the Republic of Ireland, the claimant was contacted by Mr Peter McGimpsey (who did not give evidence to the tribunal) in this connection, the tribunal wishes to make it clear that they did not consider the witness statement of Mr Peter McGimpsey in reaching their decision, and neither were they requested to do so by the respondent's representative. The claimant also refused the request to go to England made by Mr McGimpsey, indicating that he had a medical appointment. Mr McGimpsey contended that he had failed to follow absence notification procedures, and further made comments that led the claimant to wonder whether or not he had been dismissed. There was a delay in Newry while the claimant phoned Mr Stephen McGimpsey (who was out of the country on a removal job in Jersey) to find out what he was supposed to do. He was told that there would be a meeting called about this in the following week. The claimant continued on with the job.
13. On 4 September 2006 the claimant received a letter calling him to a probationary review of his employment.
14. This took place on 7 September 2006. The terms of the letter were such, that the tribunal found it to be of a disciplinary nature. For example it was made clear that certain results could take place such as having his employment terminated. Minutes were taken of this interview, but they were brief in nature. The claimant did not attack them as being an incorrect representation of what took place.
15. On 13 September 2006 the claimant received a written decision from the respondent confirming that he had been dismissed.
16. On 11 October 2006 the claimant raised a grievance in writing about this but did not formally appeal the decision.
17. The grievance was originally to be heard on 10 November 2006, but this was cancelled at the request of the claimant and eventually heard on 17 November 2006.
18. A decision was issued in writing by way of a letter dated 22 December 2006. It upheld the original decision of the probationary review/disciplinary hearing. The claimant was dismissed. It was accepted however by Campbell McGimpsey, who was the person who heard the grievance, that the claim that the claimant had called a stoppage of the lorry on route should be withdrawn on the grounds that he was not the person in control of the vehicle.
19. The claimant has insufficient service to claim the right not to be unfairly dismissed.

ANALYSIS OF EVIDENCE AND CONCLUSIONS

20. In reaching its decision, where there was a conflict in the evidence, the tribunal unanimously preferred the evidence given by the claimant. The tribunal found that the respondent witnesses did not answer the questions put on occasion and on other occasions failed to satisfactorily answer the questions put by the tribunal. The tribunal also noted that in the Case Management Discussion of 18 April 2007, the respondent's representative had indicated that the company would deny that it had been told that the claimant had type 1 diabetics. This contradicted the letter from Mr Campbell McGimpsey of 22 December 2006 in which he accepted that the claimant did tell Stephen McGimpsey and John Hendry that he had diabetes.
21. In reaching its conclusions the tribunal considered:-

(a) had the employer failed to comply with a section 6 duty in relation to the claimant (the duty to make reasonable adjustments) and

(b) did arrangements made by or on behalf of the employer place a disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled.

22. The tribunal also noted that the claimant's general practitioner had telephoned the respondent company to advise of the importance of the claimant being allowed to keep his diabetic clinic appointment. This telephone call took place on 31 August 2006.

A Was the section 6 duty triggered?

23. The tribunal considers that it was triggered and indeed it was eventually accepted by Campbell McGimpsey in his letter of 22 December 2006 that the claimant had indeed told the two persons who interviewed him – Mr John Hendry and Mr Stephen McGimpsey that he had diabetes. The respondent tried to argue that it was the responsibility of the claimant to inform the respondent what adjustments needed to be made to accommodate his condition and to avoid him being placed at a substantial disadvantage. The tribunal does not accept this contention as it is plainly set out in the legislation that 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". Both Mr Paul McGimpsey and Mr Stephen McGimpsey acknowledged that they had taken no steps whatsoever to inform themselves about the nature of the claimant's condition and what steps might have to be taken to avoid him being placed at a substantial disadvantage, or even in the area of health and safety as to whether he was placing himself, or indeed others at risk as a result of his disability.
24. The tribunal considered that due to the closeness in time of the events set out in the findings of fact, the claimant had established facts from which an inference of discrimination could be drawn. The tribunal does draw this inference. This being the case, the burden of proof shifts to the respondent to prove that the treatment ie the failure to comply with the duty to make a reasonable adjustment, was in no way related to discrimination.
25. The respondent contended that the claimant was subjected to a probationary review to deal with his conduct in four areas:

(1) the failure to follow a reasonable work request;

(2) failure to follow absence notification procedures;

(3) stopping on route to client in contravention of policy (later withdrawn); and

(4) unable to carry out Saturday work as required by the terms and conditions of employment.

THE FAILURE TO CARRY OUT A REASONABLE WORK REQUEST

26. It is certainly the case that without looking further at the nature of this offence, it is categorised in the respondent's contract of employment as being gross misconduct. The tribunal also noted that the same "offence" of failure to follow reasonable work instruction (ie refusing to go to the UK mainland) took place on 25 July 2006. No action was taken by the company according to the personnel summary in relation to this offence. Paul McGimpsey confirmed this by saying that he might have taken the claimant aside to speak to him, but he was by no means certain in his evidence that he had done so. The tribunal also queries whether a refusal to follow work instruction is in fact gross misconduct whenever the reason for the refusal ie to attend an important medical appointment (is considered). While the tribunal would not necessarily say that the reason for failure to comply with the work instruction (ie attending the medical appointment) will be sufficient to render the instruction itself unlawful and unreasonable, nonetheless the tribunal considers that it would have been a reasonable adjustment, notwithstanding the fact that the claimant had not filled in the appropriate form, to let the claimant attend this appointment.

THE FAILURE TO FOLLOW ABSENCE NOTIFICATION PROCEDURES

27. The contract of employment relating to this claimant was dated 26 June 2006. According to the contract, notice of absence was to be given to the foreman in advance and would have to be at least twice as long as the holiday being requested. This being the case, it was plain that the claimant had complied with this procedure. Certainly he had not followed the completion of the alleged staff annual leave card set out at page 60 and 61 of the bundle. The tribunal considers that the refusal to permit the claimant to attend his medical appointment without that form being filled in was an arrangement made by or on behalf of the employer which could have placed the claimant at a substantial disadvantage in comparison with persons who are not disabled. It has to be noted that persons who have diabetes require to have their condition monitored on a regular basis, whether or not the condition is in a settled state. This would have been apparent to the respondent if it had taken any steps to inform itself about the nature and requirements of the claimant's condition. It would have been a reasonable adjustment to have permitted the claimant to attend his appointment given that the procedure in the contract which at that point was only two months old or thereabouts, had been complied with, rather than the allegedly new procedure. The tribunal also took note of the fact that the claimant had arranged for his general practitioner to telephone his employer to explain how important it was for him to attend this review. In the view of the tribunal, this confirms the genuineness of the claimant's need to attend this appointment. No comparator was suggested by either party, but the tribunal constructed a hypothetical comparator who was a person without a disability of the nature of the claimants' (and by this we mean one that requires regular review) who was seeking a medical appointment without filling in the appropriate form. The tribunal considers that the refusal on failure to fill in that form would not have placed a person without this type of disability at a substantial disadvantage, but that it would place the claimant at a substantial disadvantage.

THE FAILURE TO CARRY OUT SATURDAY WORK AS REQUIRED AS STATED IN THE TERMS AND CONDITIONS OF EMPLOYMENT

28. The tribunal has considered paragraph 8 of the contract of employment and has noted that there is no reference to Saturday working explicitly on the face of the contract. The working week in this company is set out as being from Monday to Friday with various starts and finishing times. The tribunal considers that if Saturday working was an issue of the importance attached to it in the hearing by Mr Stephen McGimpsey and Mr Paul McGimpsey, it would have been stated as being a requirement on the face of the contract. Furthermore, the tribunal noted that the requirement for Saturday working was rare. It was undoubtedly the case that the claimant had a Saturday job and was unable to work for his employer on Saturdays as a result. Given that there was no explicit mention of the requirement to work on Saturdays in the contract of employment, and there was not a great deal of Saturday work required in fact, it is unsafe to rely on it as a ground for dismissing the claimant.

COMPENSATION

29. The claimant argued that he required compensation by way of payment of his net pay from the date of dismissal being 13 September 2006 to the date of the hearing which finished on 20 August 2007. He stated that but for his dismissal, he would have continued to work for the respondent. Ms Sheridan tried to argue that the claimant had failed to mitigate his loss as he had taken up full-time education in mid-October 2006. The tribunal accepted the explanation of the claimant that he had done so as it was apparent to him that he was not going to have much success in the job market without qualifications. The tribunal considers that there is a clear causal link between the act of dismissal on the grounds of his disability and the need to enter full-time education. As such the tribunal awards the claimant his net weekly wage of £216.80 for a period of 49 weeks from the date of dismissal which is the sum of £10,623.20.
30. From that the tribunal has deducted the sum of £1,429.60 which was the claimant's post dismissal receipt of the sum of £89.35 for the period of 16 weeks in his temporary employment with TK Maxx. For loss of earnings the claimant is awarded the sum of £9,193.60.
31. The claimant also claimed for injury to his feelings. The tribunal was not provided with any submissions based on the "Vento" guidance. However, the claimant did say that he was proud of the fact that as a person with diabetes he was able to do a physically demanding job and the dismissal by the respondent had made him feel less able to take on a physically demanding job and as such had in part if not in total fed into his decision to take on full-time education. The claimant had indicated that he felt £1,000 would have fairly recognised the injury to his feelings and the tribunal agrees. The tribunal has considered the length of his employment with the respondent and the nature of the discrimination complained of in reaching this decision.
32. The tribunal awards interest on the figure for injury to feelings at the statutory rate of 8% from 7 September 2006 to 7 October 2007.

£1,000 x 8% x 396 days = £86.79

365

33. No recoupment arises as the claimant stated in his claim that he had not claimed any form of benefit.
34. Summary

Loss of Earnings = £ 9,193.60

Injury to Feelings = £ 1,000.00

Interest = £_ 86.79

TOTAL £10,280.39

35. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 20 August 2007, Belfast.

Date decision recorded in register and issued to parties: