Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 01787/07

CLAIMANT: Stephen Fitzpatrick

RESPONDENT: Royal Mail Group Limited

DECISION

The unanimous decision of the Tribunal is that the respondent unlawfully discriminated against the claimant on the grounds of the claimant's disability in that the respondent failed in its duty to make adjustments. The Tribunal awards the sum of £3,000 in respect of injury to feelings together with interest in the sum of £300 making total compensation for unlawful discrimination in the sum of £3,300.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Members: Miss S Graham

Mr S Adair

Appearances:

The claimant was represented by Mr Cox BL instructed by McHugh Lynam Solicitors.

The respondent was represented by Miss Best BL instructed by Napier & Sons Solicitors.

1. The claimant's claim was for unlawful discrimination on the grounds of his disability in that the respondent failed to make reasonable adjustments for him.

The Issues

2. The respondent conceded that the duty to make reasonable adjustments arose in this case. It was agreed between the parties that the relevant period during which the alleged discrimination took place was a two-month period between 16 June 2007 and 15 August 2007.
3. Counsel for the claimant, at the outset of the hearing, withdrew the claim for harassment on the grounds of disability.
4. The issue before the tribunal was therefore as follows: in the period 16 June 2007 to 15 August 2007, did the respondent fail in its duty to make reasonable adjustments in respect of the claimant's attendance at the weekly Work Time Listening and Learning sessions (WTLLs) thereby subjecting the claimant to unlawful discrimination on the grounds of disability. The respondent contended that it had complied with the duty to make reasonable adjustments by taking specific action. The claimant's contention was that the action taken did not amount to a reasonable adjustment in the circumstances.

Sources of Evidence

5. The Tribunal heard evidence from the claimant and his witness Mr McConway. Mr McEnhill the claimant's manager gave evidence for the respondent. The Tribunal had a bundle of documents, including a map of the premises, together with witness statements from the claimant Mr McConway and Mr McEnhill. In addition, there were written statements from Mr Foster and Mr Martin who dealt with the grievance procedure and the appeal relating to the grievance procedure both of which procedures took place some 6 months after the period in question. In the event neither Mr Foster nor Mr Martin were called to give evidence and the Tribunal has therefore not had regard to their witness statements as they are not relevant to the issues before it.

Findings of Fact

6. The Tribunal found the following facts relevant to the issues before it. The claimant is a postman based in the respondent's depot in Enniskillen. The claimant suffers from chronic obstructive pulmonary disease (COPD) which is a chronic progressive disease having a serious effect on the claimant's breathing. The claimant's medical symptoms are exacerbated by warm and stuffy atmospheres and by stress.
7. It was conceded by the respondents that the claimant was disabled within the meaning of DDA. It was also conceded by the respondent that attending the WTLL in the kitchen area of the Enniskillen depot, caused a substantial disadvantage to the claimant within the meaning of the legislation as attendance at the meetings was liable to exacerbate the claimant's breathing problems. The respondent accepted that the duty to make reasonable adjustments arose in relation to the claimant during the relevant period. The tribunal therefore finds as a fact that the claimant was disabled at the relevant time (16 June 2007 to 15 August 2007) and that the duty to make reasonable adjustments arose at that time.
8. The Work Time Listening and Learning sessions (WTLLs) took place every week on a Tuesday at 8.30 am. The WTLL was a two-way information and interaction session between management and staff. It was a requirement that employees attend and a roll-call was taken at each meeting. If an employee did not attend, his manager would later chase up the matter with him to ascertain the reason for non-attendance.
9. On any given Tuesday there would be 34 staff in attendance out of approximately 64-67 staff who were liable to attend. The absent members of staff were people on sick leave, on rest days, on holidays or at dental or medical appointments. There was a group of staff who never had to attend the sessions and this group comprised approximately 5 nightshift staff and approximately 4 or 5 drivers of whom Mr McConway was one.
10. Mr McConway took sorted mail to outlying districts and had therefore usually left the Enniskillen depot by 8.30 am so he was not required to attend the WTLLs. In practice, however, Mr McConway would often be late in leaving the depot but he still did not have to go to the WTLL. It was therefore often the case that the WTLL would proceed whilst Mr McConway was in the building without him being required to attend.
11. Every member of staff received a paper brief after the WTLL which was a one-page summary of what occurred during the meeting. Paper briefs had started in early 2007.
12. On 12 June 2007 the claimant did not attend the WTLL. He decided on that morning not to attend because he had had breathing difficulties at previous meetings due to the fact that that room was crowded and there was very limited ventilation because the windows did not fully open.
13. On 13 June 2007 the claimant's manager Mr McEnhill approached the claimant to ask him why he had not attended the meeting the previous day. The claimant would not speak to Mr McEnhill unless he was accompanied by a colleague. Evidence was given by the claimant in relation to various alleged incidents between himself and Mr McEnhill prior to the period which concerns this Tribunal. The incidents referred to are not relevant to the proceedings before this Tribunal except in so far as the net result of the dealings between the two men led to a fraught relationship between them as evidenced by the fact that, in general, meetings between them had to be in the presence of another.
14. On 16 June 2007 Mr McEnhill met with the claimant who was accompanied by his colleague Mr McConway. As the claimant had had difficulties attending the WTLLs because of his medical condition, Mr McConway asked that, instead of the claimant attending, a paper brief be provided to the claimant as a reasonable adjustment given that that was the system in place for everyone whether or not they attended the weekly meetings.
15. In response Mr McEnhill raised the issue of accounting for the 30 minutes of the meeting if the claimant did not attend. This was a major concern for Mr McEnhill as, in his view, he had to account for those 30 minutes in two respects. Firstly, Mr McEnhill said that the claimant would have 30 minutes to spare if he did not attend the meeting and secondly, Mr McEnhill said that he would have to take other time out of the remainder of his day to have a 'one-to-one' meeting with the claimant to appraise him of what happened at the WTLL.
16. Mr McEnhill said that he would consider the request for a paper brief and would get back to the claimant. A few days later Mr McEnhill stopped Mr McConway in the delivery office to talk about the claimant and said that his proposal was that the claimant would sit outside the door of the kitchen area whilst the WTLL meeting took place. He asked Mr McConway to put that to the claimant and, as Mr McConway regarded the suggestion as very strange, he asked him to repeat it and then confirmed he would tell the claimant.
17. When the claimant was told by Mr McConway of the proposals he became very anxious and aggrieved. The claimant tried on several occasions to contact OHS, with whom he had previously had dealings, to talk to them about the proposal. On 22 June 2007 a meeting took place between Mr McEnhill, the claimant and Mr McConway to discuss the claimant's request for a reasonable adjustment. Mr McConway asked Mr McEnhill to tell the claimant directly of his proposal. After refusing twice to do so Mr McEnhill stated to the claimant that his proposal was that the claimant would sit outside the kitchen area but that he could go outside "for a breather" if he needed to. He refused the request for a written brief because of the issue of 'accounting' for the 30 minutes and Mr McEnhill said that he had spoken to the OHS advisor on 19 June about the claimant. The claimant decided that he had no choice but to do as he was told by his manager Mr McEnhill.
18. Mr McEnhill in evidence was very clear that he was not trying to single the claimant out by making his suggestion. In his mind, at the time, it was therefore very important not to single the claimant out. Mr McEnhill was at pains to say that he wanted to include the claimant in the meetings which he regarded as very important. Mr McEnhill confirmed that he had the highest regard for Mr McConway. Mr McConway had asked for the paper brief several times during his dealings with Mr McEnhill and tried in vain to find out what the problem was with providing the paper brief.
19. There was much debate at the hearing as to where exactly Mr McEnhill suggested that the claimant position himself in relation to the door of the kitchen area. Given that the claimant, when he attended the WTLL meetings prior to 12 June 2007, normally positioned himself either in the room beside the window or close to the open doorway of the room, and given that Mr McEnhill was suggesting something other than what normally happened, the tribunal does not accept Mr McEnhill's suggestion at hearing that what he actually told the claimant to do, was to stand in the doorway of the kitchen. The tribunal has considered carefully the evidence given by both sides and finds that the claimant was told to sit outside the door particularly as Mr McEnhill also confirms in his written statement that the claimant sat outside the door "as agreed".
20. On 26 June 2007 at the next WTLL, the claimant sat on a chair approximately 2½ feet outside the door believing this to be in accordance with the instruction of his manager. This meeting was taken by another manager Miss Beresford.
21. As the claimant sat outside the door and workers filed past, various hurtful comments were made by the claimant's colleagues and several of them laughed at him. The claimant was very upset, embarrassed and humiliated by this.
22. After contacting the Equality Commission and taking their advice, the claimant raised, with the manager Mrs Beresford, the issue of being taunted by his colleagues whilst he sat outside the meeting, and she informed the delivery sector manager Mr McKernan.
23. On 5 July 2007 Mr McKernan met with the claimant who was accompanied by Mr McConway and Mr Hannaway. Mr McKernan said that he would obtain a work-place counsellor report and, in the interim, the paper brief would be provided for two weeks instead of the claimant being required to attend the WTTL sessions.
24. After the meeting with Mr McKernan the claimant heard nothing about the work-place counsellor. After the two-week period elapsed the claimant heard nothing about whether he had to attend the WTTL. The claimant assumed, as his suggestion had been rejected before, that he would have to go back to the arrangement which Mr McEnhill had stipulated and that he would therefore have to sit outside the next meeting. The claimant missed the next few meetings because he was absent on sick leave from 28 July until 9 August 2007.
25. On 8 August the OHS examined the claimant. The report from Mr Johnston states as follows:

"It is my view that currently Mr Fitzpatrick would be covered under disability discrimination in relation to his underlying condition and ongoing treatment. It is therefore my suggestion that best practice in this instance is to make all reasonable adjustments if and when required".

This was a restatement of Mr Johnston's opinion when he had previously examined the claimant on 21 March 2007 and had provided a report to the respondent following that examination.

26. On 10 August 2007 the claimant had his "return to work" interview with Mrs Beresford. There was no mention of the WTLL issue. On 14 August Mr McEnhill handed the claimant a letter regarding sickness absence issues and, again, no mention was made of the WTLL issue.
27. On an unspecified date before 14 August 2007 Mr McKernan made the decision that the claimant no longer had to attend the WTLL meetings. This decision was not communicated to the claimant nor to his line manager Mr McEnhill.
28. On 14 August the claimant went to sit outside the WTLL. The claimant was sitting for one to two minutes at the beginning of the meeting when he was noticed by Mr McEnhill who immediately told him that he was not required to attend. The claimant was only sitting in that position for one to two minutes and he stated that one of his colleagues laughed at him on his way into the meeting and he felt singled out and upset again.
29. On 15 August 2007 Mr McEnhill called the claimant and Mr McConway to his office and handed the claimant a letter confirming that he no longer needed to attend the WTTL meetings.
30. The claimant later raised a written grievance which was dealt with by Mr Foster and the appeal hearing was dealt with by Mr Martin. As the parties confirmed that the grievance procedure was not relevant to the issue before this Tribunal, the Tribunal has not taken account of Mr Martin and Mr Foster's statements because they were not called as witnesses. The tribunal finds the statutory grievance procedures to have been complied with by both sides as agreed between the parties.

The Law

31. The law on disability discrimination is contained in the Disability Discrimination Act 1995 ("the DDA"), as amended.
32. The law on disability discrimination is outlined and commented upon in Harveys Industrial Relations and Employment Law at Division L Paragraphs 1346 – 1380.
33. The employer's duty to make adjustments is outlined in the DDA at Section 4A and states, insofar as is relevant to these proceedings, as follows:-

"4A – (1) Where –

(a) 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, or feature, having that effect."

34. In the case of Rowan v The Environment Agency 2008 IRLR 20 the EAT outlined the steps that the tribunal must go through in order to determine whether the duty to make reasonable adjustments has arisen and whether it has been breached. The steps relevant to this case are as follows:-

(1) identify the provision, criterion or practice applied that has put the claimant at a disadvantage compared to those who are not disabled;

(2) identify the non-disabled comparator (where appropriate);

(3) identify the nature and extent of the substantial disadvantage suffered by the claimant.

35. As it was agreed that the duty to make adjustments arose in this case, the tribunal must then go on to determine whether any proposed adjustment was reasonable in the circumstances, to prevent the provision, criterion or practice placing the claimant at that substantial disadvantage.
36. It is clear from the case law, that there is no onus on the claimant to suggest adjustments. It is good practice for the employer to ask the employee about any possible adjustments. There is no separate duty to consult or carry out a risk assessment (Tarbuck [2006] IRLR 664 EAT). However, failure to carry out an assessment or to consult, does not mean that the employer can rely on ignorance to excuse a failure to make a reasonable adjustment (Hay v Surrey County Council [2007] EWCA Civ 93 CA).
37. Section 18B(1) of the DDA sets out the factors that the tribunal must consider when deciding whether it is reasonable for an employer to make any particular adjustment once the duty to make a reasonable adjustment has been triggered. Such factors include the financial and other costs which would be incurred by the employer in making the adjustment and the extent to which making it would disrupt any of his activities.
38. At section 18B(2) of the DDA examples are given of steps which employers may need to take to comply with the duty to make reasonable adjustments. This is not an exhaustive list.
39. The Disability Code of Practice on Employment and Occupation ("the Code") gives guidance on what those steps might mean in practice. Neither party referred specifically to provisions of the Code. The Tribunal is bound to take into account the provisions of the Code as they are relevant to the proceedings and finds the following provisions relevant to this case.
40. The Code states at paragraph 5.18: "Any necessary adjustments should be implemented in a timely fashion, and it may also be necessary for an employer to make more than one adjustment. It is advisable to agree a proposed adjustment with the disabled person in question before they are made."
41. At paragraph 5.24 of the Code it states: "Whether it is reasonable for an employer to make any particular adjustment will depend on a number of things such as its cost and effectiveness. However, if an adjustment is one which it is reasonable to make, then the employer must do so. Where a disabled person is placed at a substantial disadvantage by a provision criterion or practice of the employer or by a physical feature of the premises it occupies the employer must consider whether any reasonable adjustments can be made to overcome that disadvantage. There is no onus on the disabled person to suggest what adjustments should be made (although it is good practice for the employer to ask), but, where the disabled person does so, the employer must consider whether such adjustments would help overcome the disadvantaged and whether they are reasonable."
42. The burden of proof provisions as outlined in the case of Igen Limited v Wong [2005] IRLR 258 CA apply to these proceedings. According to the Code, the burden of proof operates as follows. On reasonable adjustments, the claimant must prove facts from which, in the absence of an adequate explanation, the tribunal could conclude that a duty to make a reasonable adjustment has arisen; and that it has been breached. If the claimant proves such facts the burden shifts to the employer to prove either, that no such duty arose or, that it has not been breached.

Conclusions

43. Whilst Mr McEnhill clearly regarded the 30 minute issue as very important, the Tribunal does not accept that this was a valid problem. The Tribunal accepts the claimant's point that if he had followed what Mr McEnhill had suggested he could have stood outside to "take a breather" and would thereby not have been at the meeting and would not have had to account for the 30 minutes in that scenario. Additionally the tribunal does not accept Mr McEnhill's suggestion that he would have to have a one-to-one meeting with the claimant if he did not attend. Such one-to-one meetings did not occur with any of the staff who did not have to attend the meetings: they simply received a copy of the paper brief. In summary therefore the tribunal does not accept that these were valid reasons to turn down the claimant's request for a paper brief.
44. The Tribunal accepts that some adverse comments were made to the claimant on 26 June 2007 as he sat outside the meeting and that the claimant was upset, embarrassed and humiliated. At hearing the respondent cast doubt on whether any of the taunting took place at all. The claimant complained shortly after the incident and was consistent throughout his evidence that the taunting took place and the Tribunal accepts that some taunting took place.
45. The Tribunal finds that it was foreseeable that the claimant would be singled out by being told to sit outside the door whilst the meeting took place and that he was thereby liable to be subjected to adverse comments by colleagues. Mr McEnhill ought to have known that this was likely to happen. Whilst Mr McEnhill's motive appears to have been to include the claimant in the sessions, the Tribunal finds that, far from being inclusive, the stipulation that the claimant sit outside the door had the opposite affect in that it singled the claimant out in a detrimental way. Mr McEnhill was determined to try out his adjustment without having properly considered the claimant's adjustment.
46. The claimant's suggested adjustment was reasonable. The provision of the paper brief was cost effective, was not impractical and had no adverse impact on other employees. The paper brief was provided to a sizeable number of other employees who had not attended WTLLs without any discernible detriment to the organisation.
47. Mr McEnhill's evidence was that there was a valid business need for attendance to be as full as possible at the meetings because of imminent organisational changes which needed to be communicated to the staff. While this could amount to a valid business need in general, it weighed too heavily with Mr McEnhill in his decision to go forward with his proposal particularly in view of the fact that a sizeable number of staff on any given Tuesday would not be in attendance at the WTLL and therefore made do with the paper brief.
48. The tribunal accepts that it was reasonable for the claimant to believe that he had to sit outside the WTTL session on the 14 August following the expiry of the two weeks when the paper brief alone was provided, given that this was the instruction he had been given by management and given that his repeated requests for the paper brief had been refused. In the tribunal's view it was not for the claimant to chase up the matter of consideration of his suggestion for an adjustment: it was up to management to communicate to the claimant what their decision was. The onus was on the respondent to come back to the claimant particularly as the claimant was a stressed and ill employee. The lack of communication led to stress on the claimant and the claimant was also stressed because he knew that stress could exacerbate his condition. The Tribunal finds it relevant that the claimant was off with his illness from February - March 2007 and again in July and he was therefore in an active period of his illness. The tribunal therefore, accepts that the claimant was confused about what he should do and does not accept that the claimant was being perverse in going to sit in the position he had been instructed to.
49. Management were at fault for the delay in communicating their decision to the claimant and this led to him attending, albeit for two minutes, in the humiliating position again at the August meeting.
50. The Tribunal finds that the adjustment which was put in place was not reasonable in the circumstances. One of the relevant circumstances was that the claimant had made an eminently sensible suggestion which would have amounted to an adjustment. It was not reasonable for Mr McEnhill to choose his own adjustment in these circumstances. Mr McEnhill in evidence was at pains to state that he was well-intentioned in choosing his adjustment over the claimant's suggested adjustment. Whether Mr McEnhill was well-intentioned in going with his proposal first is not relevant, in our view, because the net effect of proceeding with that proposal was that it caused a foreseeable detriment to the claimant. The claimant therefore, suffered a detriment and was humiliated and singled out by his colleagues in a way which should have been foreseen by his manager.
51. The Tribunal finds that the respondent in this case breached the provisions of the Code in that the reasonable adjustment which was ultimately put in place was not put in place in a timely fashion and was not agreed in a timely way with the claimant. The claimant's representative asked for the paper briefs on 16 June and this was not confirmed until 14 August. Given that the adjustment requested was very straightforward to implement as there was an existing system in place, this delay was unreasonable.
52. In addition, the respondent breached the Code in that it did not secure the claimant's agreement to any adjustment. A major part of the respondent's case was the proposition that the claimant did not raise his concerns and as an adult he ought to have done so to contribute to the reasonable adjustment process. The Tribunal does not accept that it was for the claimant to be proactive in this situation where he had already suggested an adjustment. The duty is on the employer to act proactively and to seek agreement. Mr McEnhill in his statement states: "in the absence of any protest, I therefore naturally assumed that the claimant was happy to accept this solution". This, in the Tribunal's view, does not amount to seeking agreement and it was not reasonable for Mr McEnhill to assume that the claimant was content.
53. The provision at 5.24 of the Code is very strong and puts a very clear burden on the employer to consider the reasonableness of the adjustment suggested by the claimant. The employer failed to carry out this exercise preferring instead to try out its own adjustment first. The respondent's counsel submitted that, as the respondent's adjustment removed the disadvantage, (which was that the claimant's breathing difficulties were triggered by attending inside the kitchen), this was sufficient to discharge their duty to make reasonable adjustments. The Tribunal simply does not accept that submission. If that submission were correct, the respondent could have sent the claimant home without pay for the day and that would have been enough to discharge their obligations even though that would clearly be unreasonable by any standard.
54. The adjustment, therefore, must be reasonable in the circumstances and one of the key circumstances in this case is that the claimant had put forward a perfectly reasonable and simple adjustment which was effectively ignored by the employer in favour of an adjustment which would have foreseeable adverse consequences for the claimant.
55. Given the tribunal's findings of fact and conclusions outlined above the tribunal finds that the claimant has proved facts from which the tribunal could conclude that the duty to make reasonable adjustments was breached in this case. The adjustment put in place was not reasonable in circumstances where foreseeable adverse consequences would follow and another adjustment suggested by the claimant could easily have been put in place. The burden therefore shifts to the respondent to prove that no such breach occurred. The respondent has failed to satisfy the tribunal on this score for the reasons outlined above. The tribunal therefore finds in favour of the claimant.
56. During the hearing, the claimant was questioned on the fact that he continued to smoke during the relevant period, despite the fact that smoking was undesirable given his medical condition. Upon being asked the relevance of such questions during the hearing, counsel for the respondent submitted that the claimant's persistence in smoking was one of the factors to be taken into account by the tribunal. No further submissions were made on this point at the end of the hearing. For the avoidance of doubt, the tribunal has expressly discounted any evidence in relation to the claimant's smoking as such evidence is irrelevant to the question of whether the adjustment put in place was reasonable in the circumstances.

Compensation

57. The claimant has claimed compensation for injury to feelings alone. The claimant's counsel contended that the injury to feelings fell within the middle Vento band whilst the respondent contended that it fell in the lower band. There was no medical evidence before the Tribunal in relation to any medical effects due to the discrimination, nor in relation to any exacerbation of the COPD medical condition due to the acts of discrimination. The claimant stated in evidence that the feeling of humiliation because of the discrimination had 'ruined his life' and he continued to be upset about what had happened to him.
58. The tribunal does not find it to be reasonable to attribute all the claimant's problems to the failure to make reasonable adjustments. The purpose of compensation is to compensate the claimant and not to penalise the employer and the tribunal is mindful of the fact that the harassment complaint was withdrawn.
59. The detriment suffered by the claimant therefore, consisted of sitting outside the first meeting for the 30 minutes of the meeting, enduring comments from his colleagues and feeling singled out and humiliated. The claimant suffered further humiliation for approximately 2 minutes of the second meeting. He ought not to have suffered this humiliation because a decision had already been made that he did not need to attend the meeting but this had not been communicated to him. The respondent delayed making their decision and then delayed communicating that decision. The date of the first act of discrimination was 22 June 2007 when the claimant was definitively told that he had to comply with Mr McEnhill's suggested arrangements rather than the one he had suggested. The failure to make reasonable adjustments continued throughout the relevant period that is until the 15 August 2007. This was a relatively short period with a small number of detrimental incidents.
60. The claimant was clearly very distressed by the taunts and name-calling and at the laughing and pointing of his colleagues. However whilst the claimant brought this behaviour to the attention of management, he made no formal complaint of harassment and did not provide the names of alleged harassers to his managers despite repeated requests. There is no specific complaint of harassment before this tribunal and the respondent invited the tribunal to ignore the alleged behaviour as not proven and therefore irrelevant to its deliberations.
61. Whilst the complaint of harassment was not before this tribunal, the adverse consequences of the discrimination are relevant to this case as it was clearly foreseeable that the claimant would have felt singled out and would likely have endured some looks, comments and ridicule along the lines of those alleged. To that extent, in our view, that behaviour is relevant to the injury to feelings caused by the failure to make reasonable adjustments. The injury to feelings is however limited given that it relates to one 30-minute meeting, a two-minute meeting and the distress caused by the delay in setting up the reasonable adjustment and communicating it to the claimant.
62. The tribunal therefore finds that this falls within the lower band of Vento and awards the sum of £3,000 for injury to feelings.
63. The Tribunal accedes to the claimant's request that interest be awarded under the Industrial Tribunal (Interest on awards in Sex and Disability Cases) Regulations (NI) 1996. The calculation of interest is as follows: interest @ 8% per annum from 22 June 2007 to the date of calculation 22 September 2008 = £300.
64. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 8-10 September 2008, Belfast.

Date decision recorded in register and issued to parties: