Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 257/06

CLAIMANT: Joseph Stephen Blair

RESPONDENTS: 1. Clare Malone

2. Terry Martin

3. Frankie McDowell

4. Belfast Metropolitan College

DECISION

The tribunal finds that;-

1. none of the respondents discriminated against the claimant on the grounds of his disability by not providing him with a key for the tool cupboard, and
2. none of the respondents discriminated against the claimant for a reason related to his disability by not providing him with a key to the tool cupboard, and
3. the fourth respondent (Belfast Metropolitan College) discriminated against the claimant in that it failed to make a reasonable adjustment for him from 21 October 2005, and
4. none of the respondents discriminated against the claimant on the grounds of his disability by threatening him with disciplinary action if he made further complaints or grievances, and
5. none of the respondents discriminated against the claimant for a reason related to his disability by threatening him with disciplinary action if he made further complaints or grievances, and
6. the fourth respondent (Belfast Metropolitan College) is ordered, by way of compensation to pay to the claimant £1500 for injury to his feelings.

Constitution of the Tribunal

Chairman: Mr Greene

Panel Members: Mr J Hall

Mr H Lysk

Appearances:

The claimant appeared in person.

The respondents were represented by Miss A Finnegan, of counsel, instructed by J Blair Employment Law Solicitor.

Sources of Evidence

7. The tribunal heard evidence from the claimant.  Witnesses for the respondents were Clare Malone, Terry Martin, Frankie McDowell, Seanin Irwin, Albert McClure, Michael Moore, Colin Lillie, Thomas Tierney and Gerald Whittle.  The tribunal also had regard to the originating claim, the response and eight bundles of documents of 531 pages.

The Claim and Defence

8. The claimant claims that the respondents discriminated against him on the ground of disability and failed to make reasonable adjustments by reason of his disability.  The respondents deny the claimant's claims.

By consent the fourth respondent's title was changed from Belfast Institute of Further and Higher Education to Belfast Metropolitan College.

The Issues

9. At a Case Management Discussion on 6 December 2007 the issues for determination by the tribunal were agreed as follows;-

(1) Whether the claimant was discriminated against on grounds of his disability/for a reason related to his disability in that he was not given a key to the tool cupboard in comparison to the other members of his squad whom he alleges were given a key to the tool cupboard.  The respondent disputes that other members of the squad were given a key.

(2) Whether the respondent failed to make reasonable adjustments.  This issue relates to the requirement that the claimant signed the book at College Square East every morning before attending to his place of work.  The claimant alleges that a number of reasonable adjustments ought to have been made for him such as allowing him to use the College Square East car park and giving him a key for the said car park, allowing the claimant to telephone in at his actual place of work each morning or allowing him to log on the computer at his place of work each morning.

(3) Whether the claimant was discriminated against on grounds of disability/for a reason related to his disability in that he was threatened with disciplinary

action if he made further complaints or grievances.

Findings of Fact

4. (1) The claimant is a cabinet maker by occupation.  He was employed by the fourth respondent (Belfast Metropolitan College) as a maintenance joiner from June 1991 to date.  He worked at all of the fourth respondent's (Belfast Metropolitan College) sites but did a lot of work at their Whiterock and Tower Street sites.  The fourth respondent's (Belfast Metropolitan College) Maintenance Department was in the Lilac Room, College Square East.

In his originating claim the claimant stated that up until September 2005 his previous line manager allowed him to drive, in the morning, straight to whatever college he was working in.  His new line manager said he was to go every morning to College Square East to sign the book before his work started.

He had not been given a key to the College Square East car park as the rest of his squad had.  The claimant had to leave his car at Millfield College and walk to College Square East and then back to Millfield.

In 2001 he was diagnosed with neuropathy problems in his legs and walking unnecessary distances causes him a lot of discomfort.

He further stated that when he complained about this to his line manager and Personnel Department he was sent to the occupational health doctor (Dr Shields).  After two reports from Dr Shields recommending a reasonable adjustment should be made on his behalf his line manager and Personnel refused to comply with this.

His Grievance Procedure Stage 2 has been refused and he had received letters telling him that should he lodge any further complaints or grievances he would be dealt with under the disciplinary code.

The claimant also complained that he had not been given a key to a tool cupboard as the rest of the squad had been despite requests from him. 

By reason of the discrimination suffered by the claimant at the hands of the respondents the claimant claims that he suffered a considerable financial loss and injury to his feelings.

(2) The fourth respondent (Belfast Metropolitan College) provides secondary and tertiary education and training in centres throughout Belfast.

(3) The fourth respondent (Belfast Metropolitan College) employed the first respondent (Clare Malone) as a facilities management officer.

(4) The fourth respondent (Belfast Metropolitan College) employed the second respondent (Terry Martin) as an employee resources services manager.

(5) The fourth respondent (Belfast Metropolitan College) employed the third respondent (Frankie McDowell) as the head of its Personnel Department until her retirement in December 2006.

(6) The claimant has suffered from diabetes for over 40 years.  In or about 2001 he developed neuropathy, a complication from diabetes, which affects a diabetic's feet and legs.  It can cause pain after walking a distance of half a mile.

(7) The fourth respondent (Belfast Metropolitan College) did not, through the claimant's then line-manager Bertie McClure, enter into an agreement with the claimant on or about January 2002 to make a reasonable adjustment to the claimant's work whereby he was not required to sign-in daily at College Square East before going to the particular site at which he was working but rather could do so at the site at which he was working.  In so concluding the tribunal took into account the following matters;-

(a) In January 2002 signing-in was done at the Millfield site and not College Square East so there was not a need for the claimant to seek a reasonable adjustment to relieve him from the requirement to walk to sign-in at College Square East.

(b) The claimant accepted that Bertie McClure had permitted members of the Maintenance Department to report in, at the site where they were working during the summer, or to the site of an unfinished job where the maintenance person had to return to that site without having to sign-in at Millfield.

The claimant further accepted Bertie McClure's description of this arrangement as a "convenience".

(c) Bertie McClure denied that he had made an arrangement with the claimant to make a reasonable adjustment for him by reason of his disability.

(8) The first respondent (Clare Malone) became the claimant's line manager and took over responsibility for the Maintenance Department in August 2005.

(9) The first respondent (Clare Malone) wrote to all members of the Maintenance Department, including the claimant, on 11 August 2005 to notify them that signing-in would be required daily by all members of the Maintenance Department at College Square East.  This was implemented from 17 August 2005.

(10) Arising from the letter of the 11 August 2005 the claimant met with the first respondent (Clare Malone) on 16 August 2005.  Tommy Tierney, a union representative attended with the first respondent (Clare Malone) at her request.

At the meeting the claimant told the first respondent (Clare Malone) that by reason of his neuropathy he was having great discomfort walking from Millfield to College Square East to sign-in.  She advised him that he would need documentation to support his claim for an adjustment to be made by reason of his disability.

(11) The tribunal is persuaded that Tommy Tierney attended the meeting of the 16 August 2005 as the first respondent's (Clare Malone) union representative.  In so concluding the tribunal took into account the following matters:-

(a) The claimant maintains that Tommy Tierney advised him he was there as a union representative.

(b) The first (Clare Malone) and fourth (Belfast Metropolitan College) respondents deny that Tommy Tierney was there as a union representative and assert he was there as a witness.

(c) The second respondent (Terry Martin) has recorded in a minute of a meeting on 29 September 2005 that the first respondent (Clare Malone) had confirmed to him that Tommy Tierney had been asked to attend the meeting by her as her union representative. 

(d) In his evidence to the tribunal the second respondent (Terry Martin) stated that he could have made a mistake in his minute of the meeting of 29 September 2005.  The tribunal is not so persuaded.  The second respondent's (Terry Martin) handwritten contemporaneous note of the meeting was produced and it is in the same terms as the typed version.  Another of the fourth respondent's (Belfast Metropolitan College) witnesses in an unconnected matter described the second respondent (Terry Martin) as being meticulous.

(12) On 17 August 2005 the claimant met with the second respondent (Terry Martin) to discuss a number of matters including the claimant's request for a reasonable adjustment to be made to avoid unnecessary walking from Millfield to College Square East to sign-in.  The second respondent (Terry Martin) suggested advice be taken from the fourth respondent's (Belfast Metropolitan College) occupational health consultant to provide a basis for the claimant's request for a reasonable adjustment.  The claimant stated that he would not be willing to attend with the occupational health consultant. 

(13) On 23 August 2005 the claimant's union representative Anne Lunney wrote to the fourth respondent's (Belfast Metropolitan College) Head of Corporate Services, Mr G Whittle, about a number of issues including the claimant's mobility.

(14) The claimant's then solicitor wrote to the fourth respondent (Belfast Metropolitan College) seeking the making of a reasonable adjustment for the claimant to relieve him from the requirement to walk from Millfield to College Square East to sign-in daily.

By letter of 8 September Mr Whittle replied to the claimant's solicitor and encouraged using the fourth respondent's (Belfast Metropolitan College) grievance procedure.

Mr Whittle also wrote to Anne Lunney on 14 September 2008 and responded to each of the points she had raised with him in her letter.  In the letter he informed Anne Lunney that the claimant would need medical evidence to substantiate his claim of mobility problems.

(15) On the 22 September 2005 the claimant met with the second respondent (Terry Martin) and discussed holding a meeting with the first respondent (Clare Malone) to discuss a number of matters including his request for a reasonable adjustment.

(16) The claimant, the first respondent (Clare Malone) and the second respondent (Terry Martin) met on 29 September 2005.  During the meeting the second respondent (Terry Martin) proposed that in connection with his claim for a reasonable adjustment that he should attend at the fourth respondent's (Belfast Metropolitan College) occupational health consultant.  The claimant agreed to do so having initially been opposed to such a course.  

(17) On 12 October 2005 the claimant attended with the fourth respondent's occupational health consultant, Dr Shields for an examination and consultation.  Dr Shields furnished a report to the fourth respondent (Belfast Metropolitan College) dated 18 October 2005.

Dr Shields reported that the claimant had a chronic underlying medical condition and had developed recognised complications from this condition in relation to his walking.  She recorded the claimant's complaint that walking to and from College Square East caused him increased pain and adversely affected his underlying condition.  She concluded;-

"From the history provided by Mr Blair today and my own examination I feel that he has a genuine medical condition which is likely to be covered by the Disability Discrimination Act.  He has complications associated with his condition and it may be that there are reasonable adjustments to be made.  Mr Blair refused to provide written consent for me to obtain a report from his General Practitioner or Specialist so I feel unable to make any other comments at this time."

(18) The fourth respondent (Belfast Metropolitan College) apparently received Dr Shields' report of 18 October 2005 on 20 October 2005.

(19) The claimant ceased work on the 28 October 2005 and remained off work until 5 January 2006 with a problem with his toe which is unconnected to this claim.  He had worked on 21, 24, 25, 27 and 28 October 2005.

(20) The second respondent (Terry Martin) wrote to the claimant on the 8 November 2005 about his request for a reasonable adjustment to avoid unnecessary walking.

The second respondent (Terry Martin) stated;-

"… Furthermore, Dr Shields has informed me that you refused to provide written consent for her to obtain a report from your general practitioner or your specialist to allow her to make an adequate assessment of your condition."

(21) On 9 November 2005 the claimant signed a consent form to release his medical notes and records held by his general practitioner and sent it to Dr Shields.  Dr Shields wrote to the claimant enclosing a new consent form for him to sign on 15 November 2005.  The claimant signed the new consent form on 19 November 2005 and it was received by Dr Shields on 21 November 2005.  Neither the claimant nor Dr Shields advised any of the respondents that the claimant had signed a consent form to release his medical notes and records.

(22) By mid-November 2005 the first respondent (Clare Malone) had taken the operational decision to move the Maintenance Department from College Square East to Millfield.  This had the effect of moving the signing-in location to Millfield.  She neither advised the claimant nor anyone within the fourth respondent college (Belfast Metropolitan College) of this decision until 5 January 2006.

(23) On 10 November 2005 the claimant lodged a grievance against the first respondent (Clare Malone) and the Personnel Department for their failure to make a reasonable adjustment for him.  The claimant, by letter of 18 November 2005, clarified that the grievance against the Personnel Department referred to the second respondent (Terry Martin).  As a consequence the second respondent (Terry Martin) did not take any further part in the claimant's request for a reasonable adjustment.

(24) The third respondent (Frankie McDowell) wrote to the claimant on 13 December 2005 and among other things she advised the claimant;-

"… I note that you have refused to provide written consent for the Occupational Health Physician to obtain a report from your General Practitioner or Specialist.  I would ask you to consider your decision as, without your written consent, it is impossible for the Institute to make a decision on any "reasonable adjustment" through the lack of detailed medical advice."

The letter also advised the claimant of a hearing for his grievance scheduled for 10 January 2006.  The claimant replied by letter stating that he would be present at the meeting of the 10 January 2006.  He made no reference whatsoever to the fact that he had already given his consent to Dr Shields to obtain his medical notes and records.

(25) Dr Shields prepared a further report dated 14 December 2005 and sent it to the fourth respondent's (Belfast Metropolitan College) Personnel Department.  The third respondent (Frankie McDowell) advised the tribunal that this report was not received by the fourth respondent (Belfast Metropolitan College) until 12 January 2006.

In her report Dr Shields stated;-

"… This report [the claimant's Diabetic Specialist report] confirms his long history of an underlying medical condition with development of associated complications.  His doctor is of the opinion that walking a long distance to 'clock-in' as part of his work is detrimental to his health and should be avoided if at all possible.  In line with his opinion I would therefore ask that Mr Blair be accommodated with a restriction from unnecessary walking which would not be part of his normal duties."

(26) The claimant attended a return to work interview with the first respondent (Clare Malone) on 5 January 2006.  The claimant was made aware, for the first time, of the move of the maintenance team to Wilson Street, adjacent to Millfield, and that the signing-in would occur there also.  It was agreed that the claimant was not seeking a reasonable adjustment in relation to his absence from work from 28 October 2005 to 5 January 2006.

(27) A grievance hearing was held on 10 January 2006 to deal with the claimant's complaints against the first (Clare Malone) and second (Terry Martin) respondents for their failure to make the reasonable adjustment being sought by the claimant.

At the hearing the claimant advised the respondents, for the first time, that he had given Dr Shields written authorisation to obtain his medical notes and records.

The respondents were unaware that the claimant had given consent to Dr Shields to obtain his medical notes and records.

(28) It is common case that the report of Dr Shields of 14 December 2005 was not produced at the grievance meeting on the 10 January 2006.

The tribunal is not persuaded that Dr Shields' report of 14 December 2005 was offered by the claimant to the respondents and they refused to look at it.  In so concluding the tribunal had regard to the following matters;-

(a) If the claimant had Dr Shields' report of 14 December 2005 it is inconceivable that he would not have produced it at the meeting or made the meeting aware of its contents.

(b) It seems illogical that the respondents would not look at nor want to look at a report that they had commissioned.  Given the contents of the report such an approach would have been foolhardy in the extreme.

(c) An undisputed part of the minute of the grievance meeting of 10 January 2006 records that the respondents were awaiting a medical report from Dr Shields.

(d) The claimant's accounts of this issue at the meeting have changed.

(29) Following the grievance meeting of the 10 January 2006 the third respondent (Frankie McDowell) wrote the same day to Dr Shields for an up to date report. 

(30) On the 11 January 2006 the fourth respondent (Belfast Metropolitan College) wrote to the claimant dismissing his grievance against the first (Clare Malone) and second (Terry Martin) respondents.  The letter advised the claimant of his right to move to Stage 2 of the fourth respondent's (Belfast Metropolitan College) Grievance Procedure.  The letter also clearly indicated that the respondents were not in possession of Dr Shields' report of 14 December 2005.

(31) Dr Shields' report dated 14 December 2005 was received by the third respondent (Frankie McDowell) on 12 January 2006.  On receiving this report recommending that the reasonable adjustment sought by the claimant be made the respondents did not do anything as they believed that the moving of the signing-in to Millfield, where the claimant parked his car, obviated the need for the reasonable adjustment that the claimant was seeking.

(32) The respondents stated that the requirement to sign-in at Millfield was implemented from 16 January 2006.  The claimant contended that it was from 23 January 2006.  The tribunal prefers the evidence of the respondents on this point as it found their evidence more convincing.

(33) The claimant returned to work on 5 January 2006.  He was at work on January 5, 6, 9, 10, 12, 13, 16, 17, 23, 30, 31, February 1, 2 and 3.  From 3 February 2006 the claimant has been off work and remains off work.

(34) There was no evidence medical or otherwise to link the claimant's sick absence from work from 3 February 2006 to the alleged disability discrimination, disability related discrimination or failure to make reasonable adjustments.

(35) The claimant believed that his fellow employees in the Maintenance Department had each been provided with an individual key to the tool cupboard.  The respondents adduced evidence that there was only one key which was hung up in the Maintenance Department and which was used by all the members of the Maintenance Department.  The claimant did not challenge this evidence.

(36) In the course of his employment with the fourth respondent the claimant has lodged a number of grievances, complaints and two claims to the Fair Employment Tribunal.

(37) The Fair Employment claims were withdrawn.

At a grievance hearing on 27 October 2005 to consider a number of grievances raised by the claimant he confirmed to the panel that he was just going through the grievance procedure because his solicitor had advised him to do so although he did not expect a lot from the grievance hearing.

In two complaints by the claimant that a teacher referred to him as a "junkie" and that someone had interfered with his medication the fourth respondent (Belfast Metropolitan College) complained that having made the complaint he did not assist in the identification of the offending parties.  The claimant denied that he could provide any more assistance but the fourth respondent (Belfast Metropolitan College) asserted that he would not assist.

(38) The fourth respondent (Belfast Metropolitan College) wrote to the claimant's solicitor on 8 September 2005 and his union official on 14 September 2005 encouraging the claimant to use the fourth respondent's (Belfast Metropolitan College) Grievance Procedure.

(39) The fourth respondent (Belfast Metropolitan College) wrote to the claimant on 22 February 2006 warning him that disciplinary action would be considered if he brought a grievance which it considered to be vexatious, wasteful of management time and detrimental to other employees.

The letter set out the fourth respondent's (Belfast Metropolitan College) view that the grievance against the first (Clare Malone) and the second (Terry Martin) respondents was vexatious and that at an earlier grievance hearing on 27 October 2005 he was only going through the motions of the internal procedure with no real intention to consider resolution. 

The claimant stated in his letter of 10 November 2005 that the refusal by his line managers to listen to his concerns had met with threats of disciplinary action against him.

(40) The tribunal does not accept that the fourth respondent's (Belfast Metropolitan College) letter of 22 February 2006 amounts to a threat of disciplinary action if he made further complaints or grievances.  The threat of disciplinary action related to complaints or grievances that were vexatious or a waste of time.

(41) The claimant alleged that he handed a letter of 11 January 2006 to Michael Moore, the fourth respondent's head of Estates Department, asking to move to Stage 2 of the fourth respondent's (Belfast Metropolitan College) Grievance Procedure.  The fourth respondent (Belfast Metropolitan College) denied receiving that letter.  The tribunal is unable to determine where the truth lies on this point.

(42) The claimant stated that he suffered a financial loss and injury to feelings.

The fourth respondent (Belfast Metropolitan College) measured the loss of earnings to the claimant at £21,263.47.  It further adduced evidence that the claimant had not suffered a pension loss.  The claimant did not adduce any evidence to challenge this. 

The Law

5. (1) A person discriminates against a disabled person if, for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and he cannot show that the treatment in question is justified (Section 3A(1) Disability Discrimination Act 1995).

(2) Treatment is justified for the purpose of 5(1) above if, but only if, the reason for it is both material to the circumstances of the particular case and substantial (Section 3A(3) Disability Discrimination Act 1995).

(3) 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 (Section 3A(2) Disability Discrimination Act 1995).

(4) Where a provision, criterion or practice applied by an employer places the disabled person 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 4A(1) Disability Discrimination Act 1995).

(5) A duty to make reasonable adjustments is not imposed on an employer if he does not know or could not be reasonably expected to know that the employee has a disability and is likely to be placed at a substantial disadvantage in comparison to persons who are not disabled (Section 6(6) Disability Discrimination Act 1995).

(6) To determine whether it is reasonable to take the step to comply with the duty to make reasonable adjustments regard will be had to the following matters;-

(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 to take the step;

(c) the financial and other costs which would be incurred by the employer 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 (Section 18B(1) Disability Discrimination Act 1995).

(7) A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person (Section 3A(5) Disability Discrimination Act 1995).

(8) Where a person making a complaint under the Disability Discrimination Act 1995 of direct discrimination, failure to make reasonable adjustments or disability related discrimination proves facts from which a tribunal could conclude in the absence of an adequate explanation that a respondent had acted in a way unlawful under the Act the tribunal shall uphold that complaint unless the respondent proves that he did not so act. (Disability Discrimination Act 1995 s.17A(1B)).

(9) The Northern Ireland Court of Appeal in McDonagh and Others v Samuel John Hamilton Thom T/A The Royal Hotel Dungannon [2007] NICA 3 stated that when considering claims of discrimination, tribunals must have regard to the burden of proof.  The correct approach to the burden of proof in all discrimination claims is that set out in the Annex to the decision of the English Court of Appeal in Igen v Wong [2005] 3 All ER 812.

(10) In the McDonagh case Kerr LCJ stated that the first question to be addressed is has the claimant proved on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed the act of discrimination.  The Lord Chief Justice went on to say:-

"In addressing this question, it would be necessary for the judge to bear a number of ancillary issues in mind.  First, that it is unusual to find direct evidence of discrimination.  Secondly, that the conclusion on the preliminary issue will usually be a matter of inference to be drawn from the primary facts.  Thirdly, it must be clearly understood that the plaintiffs do not have to discharge a final burden, merely whether on the facts as found, it is possible to draw the inference of discrimination and finally it must be assumed at this stage that no adequate explanation for the discrimination exists."

(11) Where a person proves such facts the burden shifts to the employer to prove either that no such duty arises or that it has not been breached.

(12) Helpful guidance was given in assessing whether an employer has discharged his duty to make adjustments by Judge Serota QC in Environment Agency v Rowan [2008] 20 at paragraph 27 EAT;-

"In our opinion an employment tribunal considering a claim that an employer has discriminated against an employee pursuant to s.3A(2) of the Act by failing to comply with s.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,

(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 the 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 under ss. 3A(2) and 4A(1) 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 to prevent the provision, criterion or practice or feature, placing the disabled person concerned at a substantial disadvantage."

(13) A tribunal must take into account any relevant provision of the code of practice produced by the Equality Commission for Northern Ireland (Section 54A Disability Discrimination Act 1995).

(14) The relevant provisions of the code of practice are as follows;-

(a) It does not matter if a disabled person cannot point to an actual non-disabled person compared to whom 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 (Code of Practice 5.4)

(b) …. Whether or not such a disadvantage exists in a particular case is a question of fact.  What matters is not that a provision, criterion or practice or a physical feature is capable of causing a substantial disadvantage to the disabled person in question, but that it actually has this effect on him…(Code of Practice 5.11)

(c) … 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 any proposed adjustments with the disabled person in question before they are made… (Code of Practice 5.18)

(d) Whether it is reasonable for an employer to make any particular adjustment will depend on a number of things, such as 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 of a physical feature of the premises it occupies, the employer must consider whether any reasonable adjustment 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.

A disabled person has been absent from work as a result of depression.  Neither the employee nor his doctor is able to suggest any adjustments that could be made.  Nevertheless the employer should still consider whether any adjustments, such as working from home for a time or working less hours, would be reasonable (Code of Practice 5.24).

Application of the Law and Findings of Fact to the Issues

Reasonable Adjustments

6. (1) The claimant suffers from a disability for the purposes of the Disability Discrimination Act 1995.  From 2001 he began to suffer from neuropathy, a recognised complication flowing from diabetes.  In August 2005 he sought an adjustment to his work practice by reason of the neuropathy.   

(2) The provision, criterion or practice upon which the claimant relies to ground his claim for a reasonable adjustment is the requirement to walk from his car-parking space at Wilson Street, close to the Millfield site to College Square East to sign-in daily for work.       

(3) The tribunal is persuaded that the requirement to walk to College Square East and back each day from Millfield to sign-in placed him at a substantial disadvantage in comparison to his colleagues in the Maintenance Department.  In so concluding the tribunal was influenced by the following matters;- 

(a) The claimant suffered from neuropathy, a complication from his diabetes.

(b) The opinion of 18 October 2005 from Dr Shields, the occupational health consultant, that the claimant had; a genuine medical condition likely to be covered by the Disability Discrimination Act; complications associated with his condition; and that there might be reasonable adjustments to be made.

(c) The absence of any challenge from the respondents that the signing-in requirement at College Square East placed him at a substantial disadvantage in comparison to persons who are not disabled within the Maintenance Department.

(4) The presence of a provision, criterion or practice in the claimant's workplace that places him at a substantial disadvantage as compared to his non-disabled fellow employees in the Maintenance Department triggers the duty to make a reasonable adjustment.

(5) The tribunal is satisfied that the fourth respondent (Belfast Metropolitan College) knew or could reasonably have been expected to know that the claimant had a disability and was likely to be placed at a substantial disadvantage.       

(6) Applying the statutory matters to which an employer must have regard to determine if an adjustment being sought is reasonable (Disability Discrimination Act 1995 s.18B) i.e. the removal of the requirement to walk from Millfield to College Square East the following matters are clear;-

(a) it would prevent the effect in relation to which the duty is imposed;

(b) the step was practicable;

(c) there would not be any financial cost to the fourth respondent (Belfast Metropolitan College).  There was not any evidence adduced of other costs to the fourth respondent (Belfast Metropolitan College) were the adjustment made;

(d) the fourth respondent's (Belfast Metropolitan College) financial and other resources are significant;

(e) the fourth respondent (Belfast Metropolitan College) is an undertaking of considerable size.

(7) Therefore the claimant has proved facts from which, in the absence of an adequate explanation, the tribunal could conclude that a duty to make a reasonable adjustment had arisen from 19 October 2005 and that the duty had been breached.

(8) The burden then shifts to the fourth respondent (Belfast Metropolitan College) to prove that either no such duty arises or that it has not been breached.

(9) The respondents did not challenge that such a duty had arisen.  Effectively the respondents' contention was that the duty to make reasonable adjustments had not been breached.

(10) The respondents did not take any step whatsoever to address the issues once the report of Dr Shields of 18 October 2005 had been received on 20 October 2005. They did not consider what adjustments could be made as recommended at paragraph 5.24 of the code of practice.

They relied absolutely on their interpretation of Dr Shields' report that she was unable to make an adequate assessment of the claimant's condition and so informed the claimant in a letter of 8 November 2005 from the second respondent (Terry Martin).  This interpretation is clearly not warranted from the text of Dr Shields' report.

(11) Though the first respondent had decided in mid-November 2005 to move the Maintenance Department and the signing-in requirement from College Square East to Millfield campus the decision was not implemented until 16 January 2006 and the claimant was not so informed until 5 January 2006. 

(12) The respondents did not seek to challenge the recommendation of the occupational health consultant contained in her report, dated 14 December 2005.  Nor did the respondents seek to challenge that the adjustment sought by the claimant was reasonable.  The respondents' contention was that the adjustments sought by the claimant to remove his disadvantage were no longer necessary after the 16 January 2006 as the Maintenance Department and the signing-in requirement were moved to the Millfield site and consequently the claimant's particular disadvantage had been removed. 

(13) Therefore from 16 January 2006, by reason of the transfer of the signing-in requirement from College Square East to Millfield, the respondents had not breached the duty to make a reasonable adjustment.

(14) The respondents did not advance any reason why the adjustments that the claimant sought were not implemented on 13 January 2006, the day after they had received Dr Shields' report of 14 December 2005.  It would have been easy to disapply that practice to the claimant for one day or to allow him to log on at the computer in his place of work.

(15) The fourth respondent (Belfast Metropolitan College) failed to prove that it had not breached its duty to make a reasonable adjustment for the claimant to disapply the practice of requiring him to sign in at College Square East from 21 October 2005 the day after it received Dr Shields' report of 18 October 2005. The fourth respondent (Belfast Metropolitan College) was guilty of discrimination against the claimant by failing to make reasonable adjustments for him.  The second issue for determination is answered in the affirmative.

(16) There was no evidence before the tribunal that the fourth respondent's (Belfast Metropolitan College) failure to make a reasonable adjustment for the claimant caused or contributed to his subsequent absence from work from 3 February 2006 to date.

Direct Disability Discrimination

(17) As the claimant's comparators (his fellow members of the Maintenance Department) had not been provided with personal keys to the tool cupboard there is no less favourable treatment of the claimant in comparison to his comparators.  Therefore any claim of direct discrimination on the ground of disability cannot succeed.  The tribunal finds that this element of the first issue for consideration has not been made out and this element of the claimant's claim is dismissed. 

(18) As the claimant has not been threatened with disciplinary action if he made further complaints or grievances there is no basis for a comparison with his comparators (his fellow members of the Maintenance Department).  There is therefore no less favourable treatment of the claimant.  Therefore any claim of direct discrimination cannot succeed.  The tribunal finds that this element of the third issue for consideration has not been made out and this element of the claimant's claim is dismissed. 

Disability Related Discrimination

(19) As the claimant's comparators (his fellow employees to whom the requirement to sign-in did not apply) had not been provided with personal keys to the tool cupboard there is no less favourable treatment of the claimant in comparison to his comparators.  Therefore any claim of discrimination on the ground of a reason related to his disability cannot succeed.  The tribunal finds that this element of the first issue for consideration has not been made out and this element of the claimant's claim is dismissed. 

(20) The claimant has not been threatened with disciplinary action if he made further complaints or grievances.  There is no basis for a comparison with his comparators (his fellow employees who had not been threatened with disciplinary action if they made further complaints or grievances).  There is therefore no less favourable treatment of the claimant.  Therefore any claim of disability related discrimination cannot succeed.  The tribunal finds that this element of the third issue for consideration has not been made out and this element of the claimant's claim is dismissed. 

(21) The claimant did not suffer a financial loss by reason of the fourth respondent's (Belfast Metropolitan College) failure to make a reasonable adjustment.  Nor is the tribunal persuaded that any financial loss suffered thereafter by the claimant arose from the fourth respondent's failure to make a reasonable adjustment from 21 October 2005.

(22) The tribunal makes an award of injury to feelings which it measures at £1500.

(23) The tribunal finds that the first (Clare Malone), second (Terry Martin) and third (Frankie McDowell) respondents were not guilty of discrimination against the claimant and the claims against them are dismissed.

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

Chairman:

Date and place of hearing: 21, 22, 23, 24, 25, 28, 29, 30 April and 1-2 May 2008, Belfast.

Date decision recorded and issued to parties: