Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1797/07

CLAIMANT: Thomas McClenahan

RESPONDENT: Antrim Borough Council

DECISION

The unanimous decision of the Tribunal is that the claimant's claims of disability discrimination and unfair dismissal are dismissed.

Constitution of Tribunal:

Chairman: Mr S A Crothers

Members: Mr D Hampton

Mrs T Kelly

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr Conor Hamill, Barrister-at-Law, instructed by Worthington Solicitors.

1. The claimant's claim was in respect of disability related discrimination and failure to make reasonable adjustments, under the Disability Discrimination Act 1995 (as amended), ("the Act"). He also claimed unfair dismissal. The respondent denied all of his claims.
2. The Tribunal heard evidence from the claimant himself and on behalf of the respondent from Elaine Magee, Assistant Director of Human Resources, Paul Holly, Assistant Director Operational Services and Ann Donaghy, Director of Environmental Services. The Tribunal was also presented with documentation.

Issues before Tribunal

3. The issues before the Tribunal were as follows:-

(i) Did the respondent discriminate against the claimant in failing to comply with a duty to make reasonable adjustments imposed on it in relation to the claimant?

(ii) Did the respondent discriminate against the claimant for a reason which related to the claimant's disability?

(iii) Was the claimant unfairly dismissed?

Findings of Fact

4. The Tribunal, having carefully considered the evidence before it in relation to the above issues made the following findings of fact on the balance of probabilities:-

(i) The claimant was employed by the respondent as a Waste Management Operative from 4 August 1997 until 16 July 2007, being the effective date of termination of his employment. The claimant's main duties involved being part of a three man team collecting bins from residential and commercial properties in or around the respondent's borough area. This job involved walking for a considerable time each day.

(ii) The Tribunal was shown the claimant's sickness absence record from April 2002 until 9 May 2007. It was not disputed that the claimant suffered from arthritic gout and that he was disabled within the meaning of the Act. The Tribunal was satisfied that the arthritis gout condition was not connected to his work. It is clear from his sickness record that from February 2006 until 9 May 2007 the claimant's absences were as follows:-

24/02/06–-03/03/06 – gout – 6 days

26/05/06 – unwell 1 day

08/06/06–14/06/06 – gout in left foot – 5 days

22/06/06-23/06/06 – swollen foot – 2 days

31/07/06-18/08/06 – gout in elbow – 15 days

27/09/06-28/09/06 – gout in foot – 2 days

04/12/06-06/12/06 – gout in foot – 3 days

02/04/07-04/04/07 – foot swollen – 3 days

19/04/07-09/05/07 – foot blister/gout – 15 days

(iii) The respondent had a policy and scheme for managing attendance which was introduced in November 2003 ("The Policy"). Despite certain references in the correspondence and records of meetings to disciplinary action, the Tribunal is satisfied, on the evidence, that at all material times for the purposes of this case, the respondent was operating that part of its policy under the heading described at paragraph 6.8.3 as "Related Intermittent Sickness/Absence Arising From A Single Related Underlying And Ongoing Medical Condition". The policy goes on to state that:-

"When the information available indicates that the employee's absence falls within the category of intermittent and persistent absence arising from an ongoing, underlying medical condition, the line manager should, during the absence review, examine any underlying reasons for the absence and indicate that the current level of absence is a cause for concern."

(iv) The policy provides for three Absence Review Meetings and, in paragraph 6.9, a Formal Case Review, the outcome of which may be appealed to an Appeals Committee. The decision of the Appeals Committee may be appealed to the Labour Relations Agency. The Tribunal is satisfied that the claimant did not pursue this latter option due specifically to the advice he received from his trade union official to lodge a claim with the Office of the Industrial Tribunals and not pursue a further appeal to the Labour Relations Agency.

(v) An informal meeting was held between the claimant and the Cleansing Manager, Mr Jones, who was also the claimant's line manager, on 27 January 2006. The respondent then moved to the formal stages within the procedure and the first Absence Review Meeting was held on 25 July 2006. The claimant was advised that he could have a trade union representative or work colleague present. This meeting was conducted by Mr Jones with Mrs Irwin, Human Resources Officer, also present. The record of this meeting and subsequent meetings was furnished to the claimant for approval and signature.

(vi) In advance of the second Absence Review Meeting held with Mr Jones and Mrs Irwin on 1 September 2006, Mr Jones wrote to Dr Noone of the Occupational Health Department in the following terms:-

"Mr McClenahan was last examined by Dr Black on 22 March 2002. As his absence is still giving the Council cause for concern, I would be grateful if you would carry out a further examination and provide the following information within your report:-

Whether the employee suffers from an underlying medical condition which would impact upon ability to carry out normal duties as detailed within the job description.

The prognosis for future fitness to carry out present duties in the short and long term.

Whether treatment could rectify any medical condition and whether this would impact upon ability to fulfil current job role.

Any recommended adjustments to consider in order to facilitate the employee's return to work where possible.

Please feel free to contact me if you require any further information to facilitate your assessment."

In the Occupational Health Medical Request Form, also forwarded to Dr Noone, Mr Jones includes the following at Section 5 under "Manager's Comments":-

"Mr McClenahan has been absent from work on a number of occasions due to gout. He is receiving treatment from his GP for his condition.

Would you please examine Mr McClenahan and provide advice to the Council on what effect if any, this condition will have on his ability to carry out his full range of duties in both the short and longer term."

The claimant's sickness record spanning the period from 12/02/1998 until 14/08/2006 was also sent to Dr Noone together with a copy of the claimant's job description incorporating his principal responsibilities. Dr Noone's consultation with the claimant was brief and his subsequent report dated 17/08/2006 was the only medical evidence the Tribunal had before it. The report is not lengthy and is reproduced below:-

"Dear Mrs Irwin

Re: Thomas McClenahan, 23 Kilbridge Gardens, Park Hall, Antrim

Date of Birth:- 13^th November 1961

Background

Thanks for referring the above named 44 yr old 'general labourer'. Mr McClenahan has an underlying medical condition of a relapsing, remitting nature. He has had 6 spells of absence totalling 25 days since the start of the year. All absences are attributed to this condition. He suffered onset of an acute attack 3 weeks ago. This has settled with treatment from his doctor. The underlying cause for these acute episodes needs to be addressed and I've asked him to consult his G.P re alteration of the prophylactic medication. The dose maybe too low to prevent these acute attacks. He appears to addressing all contributory lifestyle factors.

Diagnosis

Recurrent gout.

Progress

He is presently symptom free.

Current Fitness For Work

He proposes to return to work from 21.08.06. The condition is not work-related and I see no absolute medical contra-indication to this.

Outlook

Better control should be possible with preventative medication at therapeutic dose from GP.

Disability

The effect on normal activities of daily living is not longstanding. Attacks settle with medication.

Workplace Adjustments

Nil relevant.

Specific Response to Referral Queries

No precipitating, aggravating or maintaining factors at work. Medication and lifestyle factor control are the focus of treatment. Acute episodes are acutely painful and he requires short spells off work. Adequate prophylaxis should reduce frequency of acute attacks.

Other Comments / Recommendations

Please don't hesitate to contact us if you require clarification on any issues raised.

Yours sincerely,

_________________________

Dr Peter Noone

Consultant in Occupational Medicine"

(vii) A further review of absence meeting was held on 1 September 2006 involving Mr Jones, Mrs Irwin and the claimant. The record of that meeting which the Tribunal accepts as accurate, shows that the respondent accepted that the claimant had a genuine illness but also pointed out that "in the long-term it would be difficult to sustain this current level of absenteeism". Mr Jones wrote to the claimant again on 8 December 2006 regarding a final Absence Review Meeting on 15 December 2006 and pointed out that the claimant's attendance had still failed to reach acceptable levels and that he had been absent for 38 working days made up of six occasions. Mr Jones advised the claimant that if the absence level continued to increase he would be referred for a Formal Case Review Meeting with Mr Paul Holly and Mrs Elaine Magee. Mr Jones also pointed out at this stage (wrongly, according to the policy, in referring to disciplinary action) that any such Formal Case Review Meeting may lead to disciplinary action which may result in dismissal. His correspondence to the claimant of 8 December 2006 did however state that the claimant was again being reminded that his employment could be at risk if attendance levels did not improve.

(viii) The Tribunal examined the oral and documentary evidence surrounding the Formal Case Review Meeting held on 11 May 2007 involving Mr Paul Holly, Assistant Director of Operational Services, Mrs Elaine Magee, Assistant Director of Human Resources, the claimant, and his GMB representative Mr Sammy Tosh. Mr Holly's correspondence to the claimant convening this meeting, dated 20 April 2007, had again referred to the possibility of dismissal due to failure to provide regular and sustained attendance.

(ix) The section in the policy at paragraph 6.9 entitled "Formal Case Review" states as follows:-

"The appropriate Assistant Director and the Human Resources Section shall undertake a Formal Case Review:

• where all possible steps have been taken and have failed to secure regular and sustained attendance (in the case of intermittent sickness absence see Sections 6.8.1 and 6.8.2)

• where all possible steps have been taken and have failed to secure the employee's return to work

Before undertaking the Formal Case Review, the Human Resources representative will have considered if the employee falls within the definition of disabled as contained in the Disability Discrimination Act 1995. If so, the Human Resources representative will consider whether any reasonable adjustments could be made to enable the employee to return to work.

The Assistant Director and Human Resources representative will consider all material evidence of relevance to the individual case in conducting the Formal Case Review. This will include:

• ascertaining the nature of the illness

• considering medical evidence/prognosis and determining the likelihood of recurrence

• considering the length of absences and periods of good health between these

• assessing the level of disruption and appropriateness of action to date

• assessing the impact of the absence on the work of the Department

• considering all aspects of mitigation presented by the employee and his/her representative

The employee and his/her representative will be given the opportunity to present relevant facts in support of their case as part of the Formal Case Review. The Council reserves the right to conduct the meeting in the employee's absence, dependent upon the circumstances.

The Assistant Director and the Human Resources representative will carefully consider all the information before them prior to making a decision in relation to the action to be taken. The decision will be communicated to the employee in writing as soon as possible after the Formal Case Review and this should normally be within one working week.

In instances of ill health dismissal, the employee will have the right to appeal in writing against the decision to an Appeals Committee."

(x) The record of the Formal Case Review Meeting under the heading of "Duration of Absence and Expected Future Duration" states as follows:-

"Tom's most recent (and current) absence commenced on Thursday 19 April 2007. During the last 52 weeks therefore Tom has been absent for 47 days made up of nine occasions (trigger point is two occasions and nine working days). This extremely high level of absenteeism has been consistent over time and has resulted in several absence review meetings being arranged to seek to identify any actions to reduce absence levels.

(25% absence level = 1.25 days/week)."

Under the heading of "Employees Comments" the record of the meeting includes the following:-

"Tom was asked if he could suggest anything that the Council could do to help reduce the absence. Tom confirmed that there really is nothing else as it doesn't matter what type of work he would be asked to do, once the gout occurs he can be bedridden so even an office job would be impossible."

The Tribunal is satisfied that the claimant did make this comment which appears to be the only area of dispute in relation to the records of meetings placed before the Tribunal. In the course of his evidence before the Tribunal, the claimant also ruled out any type of office job. The decision of the Formal Case Review is reproduced below:-

"DECISION

In reaching a decision the panel have taken into account the information provided by Tom, his GP and Council's Occupational Health Consultant as well as considered Tom's absenteeism record. Whilst the panel accept that Tom is committed to his post within Council and is committed to trying to improve his attendance in the future, the panel believe improvement is unlikely because:

1. Tom's GP has confirmed that nothing else can be done to assist

2. Tom has confirmed that there is nothing the Council can do to improve Tom's attendance and that alternative work would have no effect

3. Tom has confirmed that he has already tried all the medical advice received to date and as there is no cure for gout the panel see no reason why attendance levels will change in the future.

In view of the above the panel have decided to terminate employment on the grounds of capability due to inability to provide regular and sustained attendance (section 6.8.3. of Council's attendance policy). Tom will be advised of his right to appeal in writing to the Chief Executive within one week of decision being communicated."

The Tribunal accepts that the record of the Formal Case Review Decision accurately reflects the circumstances and factors taken into account in arriving at that decision. Mr Holly then wrote to the claimant on 14 May 2007 confirming that the respondent was terminating his employment on the grounds of capability due to an inability to provide regular and sustained attendance. This letter also pointed out that he was entitled to nine weeks notice and that his employment would terminate on 16 July 2007. It also referred to his right of appeal which the claimant subsequently exercised. The Tribunal accepts that Mrs Elaine Magee, as the Human Resources representative did treat the claimant as being disabled within the definition of the Act in advance of the Formal Case Review.

(xi) An appeal hearing was subsequently held on 24 May 2007. The panel consisted of Mrs Ann Donaghy, Director of Environmental Services, Mr Suiter, Assistant Director Environmental Health, and Mr P Kelly, Assistant Director of Development. The claimant was represented by Mr Dawson, his trade union representative, and Mrs Magee presented the case on behalf of the respondent. The Tribunal carefully considered the appeal record form and the minutes of the appeal hearing. The Tribunal has no doubt that Mr Dawson, as part of his presentation of the claimant's appeal, did refer in general terms to redeployment, changes in duties, and reduction in hours, as options which ought to have been considered by the respondent before termination of the claimant's employment. The claimant also referred to driving duties in the course of his evidence, but there is no evidence that prior to the effective date of termination of his employment, this was raised as a possible option either by the respondent or the claimant or any representative on his behalf. In any event there was no evidence before the Tribunal that this was a viable option.

(xii) The outcome of the appeal was that the earlier decision to terminate the claimant's employment was confirmed. The Tribunal considers it important to set out the reasons given by the respondent for reaching their decision as contained in the relevant record:-

"1. The panel acknowledged that Tom does indeed have a genuine illness and it was agreed that at no time has this been disputed by Council.

2. The panel noted that Tom, his GP and Council's Occupational Health Consultant have each acknowledged that no other medication or controls are available for gout and that no cure is currently known for the illness.

3. Whilst the panel noted that redeployment was actually recorded during previous absence interviews, the panel was satisfied that redeployment was not relevant in this case as both the Occupational Health Consultant, and Tom himself, confirmed that work does not aggravate gout. As a consequence no workplace adjustments, including redeployment were deemed to be appropriate in this case.

4. No evidence was presented to the panel which would indicate that absenteeism levels would improve in the future. With reference to Council's current policy regarding absenteeism levels, the panel found the incidences of sickness absence recorded for Tom to be unacceptably high.

5. The panel noted that Tom had indicated he would be prepared to "try" other work but that this request was not raised by him during the disciplinary hearing. However, the panel acknowledge that medical opinion confirmed that any adjustments to Tom's working arrangements would not offer an alternative solution given his condition, in particular, the panel noted that during his formal case review, Tom accepted that there were no other actions the Council could take to assist him in improving his attendance."

The claimant did not contest the accuracy of this record or of the minutes except to state consistently that none of the records referred specifically to his disability. The Tribunal accepts the respondent's evidence that one option the respondent looked at, and ruled out, was collecting litter. This would have involved a considerable amount of walking.

The Law

5. (1) In relation to disability discrimination, the relevant law is found in the Act as amended. The Tribunal found the summary given by Lord Justice Hooper in the case of O'Hanlon –v- Commissioners for HM Revenue & Customs (2007) EWCA Civ283 [2007] IRLR 404, to be of assistance. In paragraph 23 of his judgment he states as follows:-

"….21. Second, there is disability-related discrimination: s.3A(1). This is in some respects similar to indirect discrimination found in other discriminatory legislation, but there is no requirement here that the discrimination should have a disparate impact on the disabled as a body. It is enough that the employee is treated less favourably for a reason related to his or her particular disability. This form of discrimination can be justified. However, justification can only be established if the employer shows that the reason for the treatment is both material to their circumstances of the particular case and substantial: s.3A(3)

22. Third, there is the failure to make reasonable adjustments form of discrimination in sub-section (2). Here, the employer can be liable for failing to take positive steps to help to overcome the disadvantages resulting from the disability. However, this is only once he has a duty to make such adjustments. That duty arises where the employee is placed at a substantial disadvantage when compared with those who were not disabled.

23. There is a close relationship between these two latter forms of discrimination. Section 3A(6) provides that treatment can only be justified under subsection (1) if it would have been justified even if the employer had complied with any duty to make reasonable adjustments. It follows that logically it make sense to consider the question of reasonable adjustment disability discrimination first. That was made clear by Lord Roger of Earlsferry in the case of Archibald –v- Fife Council [2004] IRLR 651 paragraph 32,."

(2) The Tribunal also took into account relevant sections in the Disability Code of Practice Employment and Occupation ("the Code"), being careful not to use the Code to interpret the legislative provisions. It also considered Harvey on Industrial Relations and Employment Law ("Harvey") at D1 [1193] and at L [1347]ff.

(3) Reasonable Adjustments

(i) The Tribunal considered carefully the provisions of Sections 4A and 18B of the Act. Paragraph 5.3 of the Code states:-

"The duty to make reasonable adjustments arises where a provision, criterion or practice applied by or on behalf of the employer, or any physical feature of premises occupied by the employer, places a disabled person at a substantial disadvantage compared with people who are not disabled. An employer has to take such steps as it is reasonable for it to have to take in all the circumstances to prevent that disadvantage – in other words the employer has to make a "reasonable adjustment". Where the duty arises, an employer cannot justify a failure to make a reasonable adjustment……

…5.4 It does not matter if a disabled person cannot point to an actual non disabled person compared with she/he is at a substantial disadvantage. The fact that a non disabled person, or even another disabled person, would not be substantially disadvantaged by the provision, criterion or practice or by the physical feature in question is irrelevant. The duty is owed specifically to the individual disabled person.

…. 5.11 The Act states that only substantial disadvantages give rise to the duty. Substantial disadvantages are those of which are not minor or trivial. Whether or not such a disadvantage exists in a particular case is a question of fact.

… 5.24 Whether it is reasonable for an employer to make any particular adjustment will depend on a number of things, such as its costs 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 employers to ask) but, where the disabled person does so the employer must consider whether such adjustments would help overcome the disadvantage, and whether they are reasonable."

(ii) The Tribunal also considered the types of adjustments which an employer might have to make and the factors which may have a bearing on whether it would be reasonable for an employer to make a particular adjustment. These are set out in Section 18B of the Act as follows; (in so far as may be material and relevant)

"Reasonable adjustments: supplementary

18B.—(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to -

(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b) the extent to which it is practicable for him to take the step;

(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of his financial and other resources;

(e) the availability to him of financial or other assistance with respect to taking the step;

(f) the nature of his activities and the size of his undertaking;

(g) .…

(2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments –

(a) making adjustments to premises;

(b) allocating some of the disabled person's duties to another person;

(c) transferring him to fill an existing vacancy;

(d) altering his hours of working or training;

(e) assigning him to a different place of work or training;

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

(g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person);

(h) acquiring or modifying equipment;

(i) modifying instructions or reference manuals;

(j) modifying procedures for testing or assessment;

(k) .…

(l) providing supervision or other support.

(3) ….

(4) ….

(5) ….

(6) A provision of this Part imposing a duty to make reasonable adjustments applies only for the purpose of determining whether a person has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such."

(iii) The Tribunal also considered the guidance given to Tribunals in the Employment Appeal Tribunal case of Environment Agency –v- Rowan (2008) IRLR 20 where Judge Serota states at paragraph 27 of his judgment:-

"In our opinion an employment Tribunal considering a claim that his 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:-

(a) the provision, criterion or practice applied by or on behalf of an employer or

(b) the physical feature of premises occupied by the employer, or

(c) the identity of non-disabled comparators (where appropriate) and

(d) the nature and extent of the substantial disadvantage suffered by the claimant. It should be borne in mind that identification of the substantial disadvantage suffered by the claimant may involve a consideration of the cumulative effect of both the "provision, criterion or practice applied by or on behalf of the employer" and the "physical feature of premises", so it would be necessary to look at the overall picture.

In our opinion, an employment Tribunal cannot properly make findings of a failure to make reasonable adjustments without going through that process. Unless the employment Tribunal has identified the four matters we have set out above, it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage."

The Tribunal also had regard to the Code at Section 8.15 relating to managing disability or ill health and retention of disabled employees. Paragraph 8.16 states, inter alia:-

"If there are no reasonable adjustments which would enable the disabled employee to continue in his or her present job, the employer must consider whether there are suitable alternative positions to which she could be redeployed".

Disability Related Discrimination

(4)(i) In addition to the relevant statutory provisions the Tribunal had regard to the relevant sections of the Code. Paragraph 4.30 provides an example of when disability related discrimination occurs:-

"A disabled man is dismissed for taking six months sick leave which is disability related. The employer's policy, which has been applied equally to all staff (whether disabled or not) is to dismiss all employees who have taken this amount of sick leave. The disability related reason for the less favourable treatment of the disabled person is the fact of having taken six months sick leave, and the correct comparator is a person to whom that reason does not apply – that is, someone who has not taken six months sick leave. Consequently, unless the employer can show that the treatment is justified (see paragraph 6.6), it will amount to disability related discrimination because the comparator would not have been dismissed. However, the reason for the treatment is not the disability itself, it is only a matter related thereto, (namely the amount of sick leave taken). So there is no direct discrimination."

This example however must be qualified in light of the recent House of Lords decision in the Mayor and Burgesses of the London Borough of Lewisham v Malcolm [2008] UK HL 43 ("the Lewisham case") referred to in sub-paragraph (iv) below.

(ii) In relation to the defence of justification, paragraph 6.3 of the Code states:- "Where less favourable treatment of the disabled person is capable of being justified (that is, where it is not direct discrimination), the Act says that it will, in fact, be justified if, but only if, the reason for the treatment is both material to the circumstances of the particular case and substantial. This is an objective test. "Material" means that there must be a reasonably strong connection between the reason given for the treatment and the circumstances of the particular case. "Substantial" means, in the context of justification, that the reason must carry real weight and be of "substance".

(iii) In relation to termination of employment, the Code states at paragraph 8.24:- "Where a disabled person is dismissed …. the employer must ensure that the disabled person is not being discriminated against. ..If the dismissal … is made for a reason related to disability, it will amount to disability related discrimination unless the employer can show that it is justified. The reason would also have to be one which could not be removed by any reasonable adjustment." An example is then given as follows:-

"It would be justifiable to terminate the employment of an employee whose disability makes it impossible for him to perform the main functions of his job, if an adjustment such as a move to a vacant post elsewhere in the business is not reasonable for the employer to have to make."

(iv) According to the case of Clark v Novacold Ltd [1999] IRLR 318, CA, the comparison in a disability related case is with a person to whom the disability related reason does not or could not apply. The Tribunal however considered the implications of the Lewisham case, in relation, particularly, to the comparator issue. As Harvey states at L 1347.01 concerning the Lewisham case:-

"They held that Clark v Novacold was wrong and is now overruled. On a "commonsense" interpretation, there had to be a meaningful comparison under the phrase "less favourable"; Clark produced a comparison that would always apply and so the correct approach is to compare the treatment with that of a non-disabled person otherwise in the same position, ie who had also broken the terms of the lease or (crucially in the employment sphere) who had also been off work for that length of time. Provided the respondent (and/or employer) can convince the Court/Tribunal that he would have been treated in just the same way there is no discrimination.

That ruling is of crucial importance, but the Lordships went on to consider two other points figuring in the previous case law – what "relate to" means and whether the respondent must have had knowledge of the disability. Although Lord Brown did not cover these points and Lord Bingham treated them separately (must be an adequate connection and knowledge is necessary), Lords Scott and Neuberger saw them as being intertwined – there is a causal connection but it goes further than this and has to comprehend a motivational element in the respondent's mind, so that a reason cannot relate to the disability if the respondent did not know of that disability".

Importantly, justification will not be possible even in the presence of a material and substantial reason for less favourable treatment if the circumstances show that the employer is under a duty to make reasonable adjustments in relation to the disabled person but has failed to comply with that duty. Thus, if the reasonable adjustment would have made a difference, the justification defence cannot be used by the respondent. The test for justification is an objective one. Moreover, where a dismissal occurs because of the absence caused by a disability rather than the disability itself justification is a possibility.

(v) A finding that there had been no breach of s4A(1)(b) on the ground that the employer had done all that was reasonable in dealing with long-term sickness absence was held to be determinative of the existence of justification for dismissal on a disability related ground of a disabled employee: (The Home Office v Collins [2005] EWCA Civ 598). The Tribunal also considered the case of Royal Liverpool Children's NHS Trust v Dunsby [2006] IRLR 351, EAT, where His Honour Judge Richardson states at paragraph 16 of this judgement:-

"The provisions of the Disability Discrimination Act 1995 do not impose an absolute obligation on an employer to refrain from dismissing an employee who is absent wholly or in part on grounds of ill health due to disability. The law requires such a dismissal to be justified so a Tribunal does not answer the question whether a dismissal is justified merely by saying that it was not in part, because the employee was absent on grounds of disability."

He continues at paragraph 21 to state:-

"…. the Tribunal state that it was not reasonable for the Trust to treat disability related absences as part of the totting up review process as though that proposition were self evident. But there is no absolute rule that an employer acts unreasonably and treating disability related absences as part of a totting up review process or as part of a reason for dismissal on grounds of repeated short-term absence".

In the case of Jones v Post Office [2001] EWCA Civ 558, [2001] IRLR 384, the Court of Appeal for England and Wales in dealing with justification, held that the Tribunal is confined to considering whether the reason given for less favourable treatment can properly be described as both material to the circumstances of the particular case and substantial. It is not for the Tribunal to take it upon itself to decide whether the employer's assessment of risk was correct. Referring to the test for unfair dismissal, Lord Justice Pill, in that case, at paragraph 28 of his judgement, states:-

"… the Tribunal's task is to consider the reasonableness of the employer's response and, under the present section, it is to consider the materiality and substantiality of its reason. In both cases, the members of the Tribunal might themselves have come to a different conclusion on the evidence but they must respect the opinion of the employer, in the one case if it is within the range of reasonable responses and in the other if the reason given is material and substantial." This means that the test for justification is very close to the application of the test of the "band of reasonable responses" in unfair dismissal law. Therefore, if justification is within the range of reasonable responses the justification argument is made out.

(5) (i) The Tribunal also considered Section 4(2) of the Act which states that:-

"It is unlawful for an employer to discriminate against a disabled person - …(d) by dismissing him or subjecting him to any other detriment."

(ii) In this case the claimant was also relying on the provisions of Articles 126, (his right not to be unfairly dismissed), 127, (circumstances in which an employee is dismissed) and 130, (fairness) of the Employment Rights (Northern Ireland) Order 1996 to establish unfair dismissal. "Capability", in Article 130(3), "In relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality."

As Harvey states at D1 [1193]:-

"It is also contended that the threshold for establishing justification under the DDA is not particularly high and in many cases will be lower than that applied under the ERtsA. Furthermore the added procedural protections built into the unfair dismissal regime are likely in practice to mean that it will be extremely rare for a dismissal to be contrary to the DDA but not the ERtsA whereas it is clearly possible for a dismissal to be within the DDA but nevertheless unfair under ERtsA by reason of an employer's procedural failings. However, it is important to note that the DDA may also have some impact on procedural issues because of the question of reasonable adjustments being made by the employer under the DDA which can include procedural obligations."

5. Burden of Proof

(1) Guidance on the burden of proof in direct discrimination cases is contained in the Annex to the judgement in the case of Igen & Others v Wong [2005] IRLR 258. However the reversal of the burden of proof also applies to cases involving failure to make reasonable adjustments and disability related discrimination.

(2) Regarding the duty to make reasonable adjustments the Tribunal considered the case of Project Management Institute v Latif [2007] IRLR 579. Harvey summaries the position as follows:-

"… the EAT held that a claimant must prove both that the duty has arisen, and also that it has been breached, before the burden will shift and require the respondent to prove it complied with the duty. There is no requirement for claimants to suggest any specific reasonable adjustments at the time of the alleged failure to comply with the duty: in fact it is permissible (subject to the Tribunal exercising appropriate control to avoid injustice) for claimants to propose reasonable adjustments on which they wished to rely at any time up to and including the Tribunal hearing itself".

(3) In disability related discrimination cases, the claimant must prove facts from which the Tribunal could conclude in the absence of an adequate explanation that for a reason relating to his disability, he has been treated less favourably than a person to whom that reason does not apply has been treated or would be treated. If the employee does prove such facts the burden of proof shifts to the respondent to show that:-

(a) the employee has not received the less favourable treatment for a disability – related reason or even if he has;

(b) that the treatment was justified.

Submissions

6. The Tribunal heard brief oral submissions from the respondent's counsel. Neither the respondent nor the claimant referred the Tribunal to any provisions of the Code. The respondent's counsel did however refer the Tribunal to relevant sections in Harvey and to relevant provisions of the Act together with the cases of Royal Liverpool Children's NHS Trust v Dunsby and Jones v The Post Office (Supra), to urge the Tribunal to dismiss the claimant's claims relating to disability discrimination and unfair dismissal. Given the complexity of the law in relation to the issues before the Tribunal, and in accordance with its overriding objective, the Tribunal afforded the claimant extra time to obtain any necessary advice and guidance. The claimant presented written submissions to the Tribunal on the day following the respondent's submissions and was allowed to supplement his submissions by further oral submissions.

The Tribunal heard further submissions by both parties on 8 July 2008 following the House of Lords decision in the Lewisham case. Counsel for the respondent submitted, inter alia, that the claimant had not named a comparator nor had he laid an evidential basis for a hypothetical comparator, a position which the claimant agreed with in the course of his further submissions.

Conclusions

8. (1) The respondent's policy and scheme for managing attendance constitutes a provision, criterion or practice applied by the respondent. It placed the claimant at a substantial disadvantage in comparison with persons who were not disabled, in that the provisions of the policy were triggered by absences due mainly to his arthritic gout and the situation did not improve throughout the process of handling the various stages in the policy as set out above.

(2) The Tribunal is satisfied that whilst the claimant has proved facts from which in the absence of an adequate explanation the Tribunal could conclude that a duty to make reasonable adjustments has arisen, he has not proved that the duty was breached and therefore the burden does not shift to the respondent to prove either that no such duty arises or that it has not been breached.

(3) In relation to the claim of disability related discrimination, the Tribunal is not satisfied that the claimant has proved facts from which the Tribunal could conclude in the absence of an adequate explanation that for a reason related to his disability, he has been treated less favourably than a person to whom that reason does not apply has been treated or would be treated. In coming to this conclusion the Tribunal also took into account the Lewisham case. The claimant did not furnish evidence of an actual comparator nor was sufficient evidence laid before the Tribunal to establish a hypothetical comparator. Therefore, the issue of justification does not arise.

(4) The Tribunal is also satisfied that on the facts as found that even if a disability related reason did apply the dismissal of the claimant was justified and, if considered separately in the context of the Employment Rights (Northern Ireland) Order 1996, the reason for dismissal related to the capability of the employee for performing work of the kind which he was employed by the employer to do and the dismissal was fair in all the circumstances of the case as being within the range of reasonable responses.

(5) The Tribunal has considerable sympathy for the claimant in his personal circumstances. Nevertheless, it finds itself unable to uphold his claims and, accordingly, all claims are dismissed.

Chairman:

Date and place of hearing: 2-4 June 2008 and 8 July 2008, Belfast.

Date decision recorded in register and issued to parties: