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Cite as: [2008] NIIT 1403_07IT, [2008] NIIT 1403_7IT

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Shaw v Queen's University Belfast [2008] NIIT 1403_07IT (28 February 2008)

THE INDUSTRIAL TRIBUNALS

CASE REF: 1403/07

CLAIMANT: Johnston Shaw

RESPONDENT: Queen's University Belfast

DECISION

The unanimous decision of the tribunal is that:-

(1) the respondent did not victimise the claimant contrary to Section 55 of the Disability Discrimination Act 1995 (the Act); and

(2) the respondent did fail to comply with its duty under Section 4A of the Act to make reasonable adjustments.

The tribunal awards £4,000.00 in respect of injury to feelings, plus interest of £240.

Constitution of Tribunal:

Chairman: Mr N Kelly

Members: Mr A Burnside

Ms M Galloway

Appearances:

The claimant was represented by Mr B McKee, Barrister-at-Law, instructed by Donnelly & Kinder, Solicitors.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by L'Estrange & Brett, Solicitors.

THE ISSUES

There were two issues to be determined:-

(a) whether the respondent had failed in its duty under Section 4A of the Act in moving the claimant from his post at the Vice Chancellor's Lodge to the main site at Queen's University in May 2007 and retaining the claimant in employment at that location thereafter; and

(b) whether the respondent had victimised the claimant contrary to Section 55 of the Act in moving the claimant to the main site and in retaining him at the location thereafter, or in the manner in which overtime arrangements were handled in and around Easter 2007.

The case for the claimant could be summarised as follows:-

The claimant was a longstanding employee with a disability (urinary incontinence) and an unrelated health problem (ischaemic heart disease). He raised a grievance about a work instruction and in the course of that grievance relied on what he then thought was a disability (his heart condition).He told management that he was going to the Equality Commission. Following that statement, he was moved to the main site and overtime arrangements were altered as an act of victimisation. The claimant also alleged that his move to and his retention at the main site was in breach of the employer's duty to make a reasonable adjustment.

The case for the respondent could be summarised as follows:-

The claimant in the course of his grievance about a work instruction asked what would happen if he collapsed while working alone at the Vice Chancellor's Lodge. His trade union representative, in the context of that grievance, asked the University to review the question of the claimant working alone. On that basis, the respondent felt that it had no option but to move the claimant to the main site where it could better manage his condition. The respondent had made sufficient adjustments to cater for the claimant's disability and had fulfilled the requirements of Section 4A. The move to the main site and the operation of overtime arrangements were not in any sense victimisation contrary to the Act.

RELEVANT FACTS

The claimant is, and was at all relevant times, a gardener employed by the respondent. He started work in 1990 and worked at the Vice Chancellor's Lodge, at the end of Lennoxvale, from 1992 until his move to the main site on 14 May 2007. He is 64 years of age.

The claimant suffers from urinary incontinence. The respondent properly concedes that he is disabled for the purposes of the Act. At the Vice Chancellor's Lodge ('the Lodge'), the claimant had the almost exclusive use of a toilet. He also had the use of a shed in which he could store his incontinence pads and spare clothing and in which he could change his clothing as the occasion demanded. He also had minimal contact with the public, students and colleagues. While working at the Lodge, he worked alone for most of the time.

The claimant suffered from a mild cardiac infarction in September 2004.

The respondent sought medical advice from its In-house Occupational Health Physician, Doctor Denis Todd, in relation to the claimant's ability to work alone and unsupervised. Following the cardiac incident, Doctor Todd initially placed a restriction on the claimant's ability to work alone. He then sought advice from the claimant's Consultant Cardiologist in June 2005. The advice received from the Cardiologist was that the claimant should be able to return to his normal occupation but that he should 'avoid extreme physical activity'. Doctor Todd passed this advice onto Mr Ray McEvoy, the Personnel Officer of the respondent, on 3 November 2005 and added that the claimant was at "little significant risk of further coronary artery problems and so I would now lift the restriction on him working alone. It also seems that he is fit for all but the most extreme forms of physical activity".

The claimant returned to work at the Lodge on 14 November 2005 and remained there until his move to the main site on 14 May 2007.

Doctor Todd further examined the claimant on 27 April 2006 and concluded, in relation to his heart condition, that he was undertaking a full range of duties, had no chest pain or shortness of breath and he recommended that the claimant was fit to continue in his current employment.

Mr Paul Wallace was the head gardener employed by the respondent and was the claimant's line manager while he worked at the Lodge. In October 2006, the claimant was instructed to move 600 small plants from greenhouses located beside Riddel Hall to the Lodge. There was direct access through a garden gate from the grounds of Riddel Hall to the grounds of the Lodge. The claimant moved these plants over a period of three days with the use of a small handcart which he pushed between the two buildings along gravel paths. The tribunal heard conflicting accounts of whether the claimant could or should have asked for the use of a van and conflicting estimates of the distance between the greenhouses and the delivery point at the Lodge. As far as the present case is concerned, it is not necessary for the tribunal to resolve these disputes; the only point of relevance to the present case is that the claimant lodged a formal grievance in relation to this work instruction.

In that grievance the claimant alleged that Mr Wallace was aware of his medical condition (ischaemic heart disease) and further alleged that the respondent should have made reasonable adjustments by providing a van to move the plants. Mr Adrian Davis, the environmental manager of the respondent, interviewed both the claimant and Mr Wallace as part of Stage 1 of the grievance procedure. The claimant asked, in the course of the interview with Mr Davis, what would have happened if he had collapsed while moving the plants from the greenhouses in Riddel Hall to the Lodge. He told Mr Davis that the instruction had amounted to harassment and that a reasonable adjustment would have been to provide a van. The claimant further stated that he would take the matter up with the Equality Commission. The grievance was not upheld at Stage 1. Mr Davis concluded that the work instruction, bearing in mind that the task was completed over a period of three days, was a reasonable instruction.

The tribunal is satisfied that this grievance was a protected act. It does not matter that the complaint alleging a failure to make reasonable adjustments in relation to the work instruction was misconceived, in that it was not based on a valid disability for the purposes of the Act but was based on a medical condition which, in all probability, would not have amounted to a disability. The fact remains that a complaint was made alleging a breach of the Act and that complaint is a protected act for the purposes of Section 55(2)(iv) of the Act. There is no evidence that the complaint made by the claimant through the grievance procedure was made otherwise than in good faith; and it therefore cannot be disregarded under sub-section (4) of Section 55.

The grievance moved to Stage 2 of the procedure and a grievance hearing was held on 3 April 2007. Mr Davis, Mr Wallace, the claimant and Hugh Lewsley, his trade union representative, were present. Mr Davis raised the question of the claimant's comments about his health made during Stage 1 and in response to Mr Davis raising this issue, Mr Lewsley asked that lone working be reviewed. At no time did either Mr Lewsley or the claimant request a move to the main site or positively request that lone working be stopped. The grievance was not upheld at Stage 2 and the respondent again concluded that the work instruction was reasonable.

In terms of chronology, it is convenient at this point to deal with the issue of overtime arrangements. The overtime arrangements in relation to Sunday working for the gardening team, consisted of a rota by which Sunday overtime alternated between two teams each consisting of two gardeners. No overtime was offered on Easter Sunday, 8 April 2007. The claimant had worked on the Sunday, 1 April 2007 and was originally scheduled for Sunday overtime on 15 April 2007. In the event, because Sunday 8 April 2007 had been missed, the rota simply skipped that date and resumed on 15 April 2007 with the two gardeners who would originally have been scheduled for 8 April 2007. The claimant and his partner were then scheduled for overtime for Sunday 22 April 2007 and the rota resumed. No financial loss overall was occasioned to the claimant. The tribunal is satisfied that the alteration of the rota was a reasonable action on the part of the employer and that there is no evidence at all to suggest that it was in any way motivated by his grievance or indeed by any other matter particular to the claimant.

The respondent arranged a meeting on 10 May 2007 at which the claimant, Mr Drew McCabe, his new trade union representative, Mr McEvoy and Mr Davis attended. This meeting was not part of the formal grievance procedure and at this stage the claimant's grievance was still proceeding through Stage 2. The meeting on 10 May 2007 focused on a proposal to re-locate the claimant to the main site. Mr McEvoy stated that the respondent was concerned about the claimant's health and the dangers posed by him working alone. He said that management was also concerned that it was no longer sustainable to continue sending additional support to the Lodge to assist the claimant in heavy tasks and that it was, at that stage in 2007, necessary to deploy a gardener at the Lodge who was able to complete a full range of duties. Furthermore, the claimant would be better supported and his medical condition better managed on the main site.

The claimant commenced work on the main site on 14 May 2007. He was reluctant to do so but agreed to 'give it a go'. He was given a map of the University showing the location of all the toilets and was also given a list of those toilets. His duties on the main site were exactly the same as the duties required of him at the Lodge.

On Tuesday 15 May 2007, the claimant wet himself while working on the main site. He was provided with a long length 'shop coat' which he was advised to wear over his clothes to minimise embarrassment. He was also advised to carry a bag or a backpack containing his incontinence pads and spare clothing. He was also advised to take frequent toilet breaks.

Having heard the claimant's evidence and observed his demeanour, the tribunal is satisfied that he found difficulty with the increased contact with members of the public and with students which resulted from working on the main site on weekdays. He contrasted this with working in the more secluded grounds of the Lodge with what were, to all intents and purposes, his own toilet facilities and with access to his own shed for changing, storage of pads and spare clothing, etc. The claimant was, in the opinion of the tribunal, genuinely embarrassed at the increased chance of being observed by members of the public or by students with wet clothing and of being observed by colleagues when changing pads and changing out of wet clothing. He was, in the opinion of the tribunal, genuinely embarrassed at having to carry a bag around with him which his colleagues would know contained incontinence pads and spare clothing. Wearing the shop coat also caused him particular embarrassment in that his colleagues during the summer months would be wearing tee-shirts and he would be noticeably different and would stand out when wearing the shop coat.

The tribunal accepts that a certain amount of embarrassment would have been occasioned anyway by the nature of the claimant's condition. However, the tribunal is satisfied that the level of embarrassment was increased by having to work at the main site during the working week when the site was at its busiest both in terms of access by the public and students and in terms of access by colleagues.

The Stage 3 appeal in relation to his original grievance concerning the work instruction was concluded in December 2007 and his grievance was again not upheld. The claimant remained at the main site and continued there to the date of hearing. The claimant is due to retire in approximately 18 months, ie in September of the year in which he attains the age of 65.

RELEVANT LAW

In relation to victimisation, the Act provides at Section 55 that a person ('A') discriminates against another person ('B') if 'A' treats 'B' less favourably than he treats or would treat other persons whose circumstances are the same as 'B's' and he does so for certain specified reasons, including that 'B' has alleged that 'A' has contravened the Act.

In relation to the duty to make adjustments, Section 4A provides that where a provision, criterion or practice applied by or on behalf of an employer places 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 provision, criterion or practice having that effect.

Section 3A(2) provides that a person discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

The term 'provision, criterion or practice' is defined in Section 18D to include any arrangements.

In Northern Ireland, at least, Section 17A (1B) provides that where a claimant in an industrial tribunal complaint proves facts from which the tribunal could, apart from that sub-section, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act.

The position relating to the shifting burden of proof was analysed by the GB Court of Appeal in the case of Igen v Wong [2005] EWCA 142 and guidance for tribunals was set out in a series of 13 numbered paragraphs in that decision. The Northern Ireland Court of Appeal in McDonagh & Others v Royal Hotel [2007] NICA 3, confirmed that that guidance can be applied to all forms of discrimination and stated:-

"For the purposes of the present case the first question that the judge should have articulated was, 'have the plaintiffs proved on the balance of probabilities facts from which I could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against them?'."

Those guidelines were re-visited and affirmed by the GB Court of Appeal in the case of Madarassy v Nomura International PLC [2007] EWCA Civ 33 on 26 January 2007. At Paragraph 12 of that decision, the court stated:-

"I do not underestimate the significance of the burden of proof in discrimination cases. There is probably no other area of civil law in which the burden of proof plays a larger part than in discrimination cases. Arguments on the burden of proof surface in almost every case. The factual content of the cases does not simply involve testing the credibility of witnesses and contested issues of fact. Most cases turn on the accumulation of multiple findings of primary fact, on which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts. It is vital that, as far as possible, the law on the burden of proof applied by the fact-finding body is clear and certain. The guidance in Igen v Wong meets these criteria. It does not need to be amended to make it work better."

At Paragraph 52, the court stated:-

"Much of what Mr Allen said about the effect of reversing the burden of proof is correct. Mr Allen is obviously right in saying that the sub-section does not require Ms Madarassy to prove a conclusive case of unlawful discrimination. She only has to prove facts from which the tribunal could conclude that there had been unlawful discrimination by Nomura; in other words she has to set up a prima facie case."

At Paragraph 54, the court stated:-

"I am unable to agree with Mr Allen's contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing the facts of a difference in status and a difference in the treatment of her."

At Paragraph 56, the court stated:-

"The court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent 'could have' committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which the tribunal 'could conclude' that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination."

At Paragraph 57, the court continued:-

"'Could conclude' in Section 63A(2) must mean that 'a reasonable tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination such as evidence of a difference in status, and difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint."

At Paragraph 58, the court continued:-

"The absence of an adequate explanation for the differential treatment of the claimant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the claimant. The consideration of a tribunal then moves onto the second stage. The burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate and non-discriminatory explanation of the treatment of the claimant. If he does not the tribunal must uphold the discrimination claim."

Again in relation to the shifting of the burden of proof, the Employment Appeal Tribunal in the case of Project Management Institute v Latif [2007] IRLR 579, when dealing with a reasonable adjustment case concluded that "the paragraph in the DRC's Code is correct. The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably have inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing substantial disadvantage envisages the duty, but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made. That is not to say that in every case the claimant would have to provide the detailed adjustment that would need to be made before the burden would shift. It would, however, be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not".

In Dresdner Kleinwort Wasserstein Ltd v Adebayo [2005] IRLR 514, the Employment Appeal Tribunal stated at Paragraph 34:-

"That pursuant to [an equivalent provision relating to race discrimination] the first stage of the process is for the tribunal, having heard all the evidence, to determine the primary facts proved by the applicant in order to see what inferences, or secondary facts, could be drawn from them, from which they could conclude that an unlawful act of racial discrimination had been committed, absent any explanation from the employers. Such inferences could include, for example, inferences which can legitimately be drawn from an employer's evasive or equivocal replies to a questionnaire, pursuant to Section 65(2)(b) of the Act."

The EAT continued at Paragraph 35:-

"This does not mean, in our view, that in a case involving alleged race discrimination, it will be sufficient at this first stage for an applicant who is black simply to show, for example, that a white comparator was promoted to a post for which he had applied. In view of the 'like for like' requirement in Section 3(4) and the need for the relevant circumstances in the applicant's to be same or not materially different in the case of the comparator, the applicant in such a case would have to show not only that he met the stated qualifications for promotion to the post, but that he was at least as well qualified as the successful candidate. The relevant information as to the successful candidate's qualifications could be obtained in the usual way through correspondence or using the questionnaire procedure.

36. On such facts assuming that the applicant could show this to be the case, an employment tribunal could conclude that an act of racial discrimination had been committed, absent any explanation from the employers, as to why they had promoted the white candidate. The important word in this section is 'could'. At this first stage the tribunal has only to conclude that the facts could lead them to the conclusion that there had been unlawful discrimination.

37. If the tribunal has made this determination they proceed to the second stage, when the burden of proof will move the respondent employer to prove on the balance of probabilities that he did not commit or, as the case may be is not to be treated as having committed the act of unlawful discrimination. If the tribunal find that this burden is not discharged, they shall, i.e. must find that the respondent has unlawfully discriminated against the applicant. This, in our judgment, represents a significant change from the previous approach established in the cases of King and Zafar. The discretion afforded to a tribunal to draw an inference that an employer had unlawfully discriminated on grounds of sex or race only if they considered it legitimate in all the circumstances to do so having regard to the primary facts, has now gone."

Finally, on the shifting burden of proof, the Code of Practice issued by the Equality Commission provides at Paragraph 4.43 that:-

"To prove an allegation that there has been a failure to comply with a duty to make reasonable adjustments, an employee must prove facts from which it could be inferred in the absence of an adequate explanation that such a duty has arisen and that it has been breached. If the employee does this, the claim will succeed unless the employer can show that it did not fail to comply with its duty in this regard."

The EAT in the case of Environment Agency v Rowan [2008] IRLR 20 held that an employment tribunal considering a claim that an employer has discriminated against an employee pursuant to Section 3A(2) of the Act by failing to comply with the Section 4A duty must identify the provision, criterion or practice applied by or on behalf of the employer and the nature and extent of the substantial disadvantage suffered by the claimant.

The Code at Paragraph 5.8 – provides that duty to make reasonable adjustments applies, for example, to … contractual arrangements and working conditions. At Paragraph 5.11 it states that substantial disadvantages are those which are not minor or trivial. At Paragraph 5.18 the Code indicates that assigning a disabled person to a different place of work might be a reasonable adjustment.

DECISION

VICTIMISATION

The claimant had been working at the Lodge for a period of 18 months after his cardiac infarction and before his move to the main site. Mr Wallace accepted in evidence that with the exception of one or two minor incidents there had been no complaint about the claimant's standard of work. Neither had there been any actual incidents which could have given rise to any concern about the claimant's working largely alone while at the Lodge. The medical evidence from Doctor Todd was that there was no risk to the claimant in working alone. The specific restriction on working alone had been lifted by Doctor Todd to permit the claimant to return to his duties at the Lodge on 14 November 2005. The claimant raised the issue of working alone in the course of his grievance, at Stage 1, when he was challenging the instruction to move 600 small plants with a handcart. The claimant's trade union representative did ask for the question of working alone to be reviewed and did commend the respondent for having moved the claimant back to the main site.

The move was not a move supported by medical evidence. When the claimant posed the hypothetical question:-

"where would the University have been if I had collapsed when pushing the handcart?"

the respondent could reasonably have concluded that the claimant was simply trying to bolster his grievance as part of what was clearly an ongoing dispute between the claimant and Mr Wallace and could also have concluded that the claimant was simply getting carried away in the process. However, the intervention of the trade union representative to ask for a review of the practice of the claimant working alone is, in the view of the tribunal, significant.

Employing the two stage test, the claimant has proved facts on which the tribunal could, absent an adequate explanation, find that there had been victimisation. He has established a prima facie case. There was a protected act, ie the formal grievance. This was followed by the move to the main site against the claimant's wishes. The burden of proof shifts then to the respondent to establish on the balance of probabilities that the decision to move the claimant was not related to the protected act. After considering carefully the evidence of the respondent's witnesses and after considerable deliberation, the tribunal concludes the respondent has established that the move was based on the claimant's own expressed concerns and in particular on the trade union intervention. The tribunal therefore concludes that the move to the main site was not an act of unlawful victimisation.

REASONABLE ADJUSTMENTS

The provision, criterion or practice, or arrangement, which placed the claimant at a disadvantage was the move from the Lodge to the main site. The substantial (ie more than minor or trivial) disadvantage which that caused the claimant was the additional embarrassment and anxiety caused to him by the more public working environment and by the need to:-

(a) carry round with him a bag containing incontinence pads and spare clothing; and

(b) wear a shop coat which drew additional attention to him.

The reasonable adjustment which the claimant proposed was a move back to the Lodge.

While the concerns of the respondent which led to the initial return of the claimant to the main site may have been understandable, the incident on 15 May 2007 when the claimant was clearly embarrassed at having wet his trousers and the letter of 19 May 2007 in which the claimant complained of the situation being 'humiliating, degrading, embarrassing and very stressful' should have alerted the respondent to the need to consider a reasonable adjustment and in particular a move back to the Lodge. The medical evidence did not, as contended by Mr McEvoy, indicate that a move to the main site was in the claimant's best interests. The medical evidence was in fact clear in that there was no danger to the claimant working alone. Furthermore, the medical report on 15 May 2007 placed particular emphasis on the need to address "the embarrassment Johnston is suffering as a consequence of his incontinence in a much more public environment than he has previously been working in".

The tribunal concludes that the additional embarrassment and anxiety caused to the claimant was more than minor and trivial.

The tribunal concludes that the claimant has discharged the onus placed upon him in the first part of the two stage burden of proof set out in Section 17A and that the onus of proof therefore passes to the respondent.

The tribunal has carefully considered the respondent's argument that the arrangement of the claimant working alone at the lodge, while being assisted with heavy work, was no longer sustainable. We have seen or heard no evidence which backs this up. Furthermore this arrangement had been in place for 18 months without apparently any difficulty being raised within management. If this had been, as suggested by management, unsustainable, the tribunal would have expected to have seen some contemporaneous documentary evidence which indicated that concerns had been expressed about its sustainability. Furthermore the lodge and the main site are no great distance apart and having regard to the practicality of the proposed adjustment and the financial resources of the respondent, the tribunal concludes that the respondent has not discharged its burden of proof. The tribunal therefore concludes that the respondent has failed in its statutory duty to provide a reasonable adjustment.

REMEDY

There is no financial loss in this case. In relation to the injury to feelings, the tribunal is conscious that an injury to feelings award is compensatory and not punitive. The additional embarrassment and anxiety caused by the failure to provide a reasonable adjustment appears to the tribunal to fall towards the upper end of the lower Vento category and the tribunal therefore fixes the award at £4,000.00.

Interest at the rate of 8% per annum from 15 May 2007 is payable under Regulation 7 (1) (a) of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996. This amounts to a sum of £240.

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

Chairman:

Date and place of hearing: 30 January 2008 – 1 February 2008, Belfast.

Date decision recorded in register and issued to parties: