Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 396/06IT

CLAIMANT: Angela Suzanne Robertson

RESPONDENT: Northern Ireland Institute for the Disabled

DECISION

The unanimous decision of the tribunal is as follows:-

(a) The claimant was unfairly dismissed. The tribunal therefore orders that the sum of £1990.89 is payable to the claimant for unfair dismissal.

(b) The respondent was guilty of unlawful disability discrimination against the claimant in that it failed to make reasonable adjustments for her and discriminated against her for a reason related to her disability. The tribunal awards the sum of £11,000 for injury to feelings for unlawful discrimination together with interest in the sum of £2,347 making a total of £13,347

(c) The claimant's claim for discrimination by way of harassment on the grounds of her disability is dismissed.

(d) The claimant's claim for unpaid holiday pay was agreed by the parties to be payable and the sum of £220 is therefore ordered to be paid.

The total compensation payable is therefore £15,557.89.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Members: Ms G Ferguson

Mr O Fields

Appearances:

The claimant was represented by Mr B Mulqueen, BL, instructed by John Boston & Co Solicitors.

The respondent was represented by Mr Sheridan of Peninsula Business Services

The Claim

1. The claimant's claim was for unfair dismissal, unpaid holiday pay and for unlawful discrimination on the grounds of disability. The discrimination was alleged to comprise harassment, disability-related discrimination and a failure to make reasonable adjustments.

The Issues

2. The issues for the tribunal to determine were as follows:-

(a) What was the reason for the dismissal, was it one of the potentially fair reasons for dismissal outlined in the legislation and was dismissal fair in all the circumstances?

(b) Was the claimant unlawfully discriminated against on the grounds of disability in that she was harassed on 16 June 2005 by the respondent's workers?

(c) Was the claimant's dismissal on 19 January 2006 for a disability-related reason and was it justified?

(d) Did the respondent's initiation of the capability dismissal procedure constitute less favourable treatment for a reason related to the claimant's disability and if so was it justified?

(e) Did the respondent's dismissal of the claimant constitute less favourable treatment for a reason related to the claimant's disability and, if so, was it justified?

(f) Was there a failure by the respondent to make reasonable adjustments firstly, in deciding to dismiss the claimant and secondly, in the procedure adopted in the dismissal process?

(g) The respondent conceded that there was a failure to deal with the claimant's written grievance raised on 8 February 2006 in contravention of the statutory grievance procedures. That grievance related to the complaint of harassment. The issue for the tribunal was therefore whether, in the event of compensation for harassment being awarded, there should be an uplift of between 10% and 50% in the compensatory award.

Sources of Evidence

3. The tribunal heard evidence by way of witness statement and oral evidence from the claimant and her father. For the respondent, the tribunal heard evidence by witness statement and orally, from Tony Gregg, the head of Corporate Services; William John Miskimmon, the Executive Director and Vi Long, the claimant's line manager. The tribunal also had an agreed bundle of documentation which included medical reports from two consultant psychiatrists, a psychologist, the claimant's GP and the GP notes and records. Submissions were made by both parties on the 25 April 2008 and further submissions were made on the effect of the House of Lords decision in the Malcolm case on the 5 September 2008.

Findings of Fact

4. The tribunal found the following facts relevant to the issues before it:-

(a) The respondent is an organisation providing nursing facilities for severely disabled people at its nursing home in Bangor, where the claimant worked. The respondent employed approximately 100 employees at a number of sites. Forty of those employees worked at the nursing home with the claimant.

(b) The claimant was a cleaner who sometimes helped out in the kitchen by setting up meals for residents. She worked part-time for 24 hours per week and her duties involved cleaning, vacuuming, dusting, and shampooing carpets. The claimant worked for the respondent from September 2002 until 19 January 2006 when she received a letter from the respondent dismissing her. The effective date of termination (EDT) of the claimant's employment is therefore 19 January 2006.

(c) The claimant went off work on 16 June 2005 following an incident at work. She was off work with stress reaction from that date until the date of her dismissal.

(d) On the 16 June 2005, the claimant complained to Mr Gregg about the behaviour of her co-workers in the kitchen on that same day. The claimant's complaint at that time to Mr Gregg was that she had been ignored by her colleagues, that they were talking about her behind her back and enough detail was given at that time to Mr Gregg for him to believe that it was serious enough to merit investigation.

(e) The claimant's claim was that she was harassed on 16 June 2005 in that she was cold-shouldered, ignored, colleagues were talking about her behind her back and in her statement she states as follows about her colleague Phyllis :-

"She then got on her high horse and started to shout back exactly what I can't remember but it was along the lines of "what are you talking about? you're mad!"".

(f) The claimant also in her statement mentions that she "always got on great" with Phyllis and she used to have a "great relationship" with her and that this incident therefore was "bizarre".

(g) Dr Harbinson, consultant psychiatrist, in recording this incident in her report of 3 October 2006 states: "Angela then asked the cook if she had a problem with her. She said the cook mumbled something and gave her dirty looks".

(h) The investigation into the incident of 16 June 2006 consisted of Mr Gregg speaking to the three kitchen workers alleged to be involved and he produced a one-page report which he kept on file. No statements were taken from the claimant nor the alleged perpetrators of the behaviour and Mr Gregg did not go back to the claimant to seek clarification on the conflict in evidence between her account of events and the account of the three other women. The claimant was never informed of any outcome to the investigation.

(i) The Staff Handbook was available to staff and all staff had been asked to sign to confirm that they had seen a copy of it. There were copies in the kitchens and in the nursing stations and the Handbook was available for the claimant if she wanted to have sight of it.

(j) The Handbook outlines the respondent's grievance procedure and its personal harassment policy and procedure. The relevant paragraphs of those two parts of the Handbook state as follows:-

"Nothing in this procedure is intended to prevent you from informally raising any matter you may wish to mention. Informal discussion can frequently solve problems without the need for a written record. However if you wish to raise a formal grievance you should normally do so in writing from the outset. Whilst we will give the same consideration to any grievance that you raise verbally, provided you make it clear that you wish it to be treated formally, you should be aware that, in most circumstances, the law requires you to provide us with written details of your grievance before taking certain types of legal action.

(4) If you feel aggrieved at any matter relating to your work… you should first raise the matter with the person specified in your statement of main terms and conditions of employment, explaining fully the nature and extent of your grievance. You will then be invited to a meeting at a reasonable time and location at which your grievance will be investigated fully. … you will be notified of the decision in writing normally within 10 days of the meeting including your right of appeal".

(k) The Personal Harassment Policy and Procedure part of the Handbook gives examples of some behaviour which can constitute harassment at paragraph 3(4) which states:-

"Isolation or non-co-operation at work, exclusion from social activities".

It also states at paragraph 3(7):-

"You should note that it is the impact of the behaviour which is relevant and not the motive or intent behind it".

(l) In relation to complaints that policy sets out the complaints procedure and states at paragraph 2:-

"Where the informal approach fails or if the harassment is more serious you should bring the matter to senior management as a formal written complaint. This will not preclude the investigation of a complaint made verbally".

It also states at paragraph 4:-

"When the investigation has been concluded a draft report of the findings and of the investigator's proposed decision will be sent in writing to you and to the alleged harasser.

(m) Mr Gregg knew at that time (that is, 16 June 2006 when the claimant went off sick and he investigated her complaint) that the claimant had suffered from depression. The claimant had been off sick a number of times with stress or depression and there were a number of references to this on her sickness record. Mr Gregg would have seen the claimant's sick lines and knew, or ought to have known, that she had a history of stress and depression. In addition, the claimant had told Vi Long, a member of management, about her history and her difficulties with depression. The tribunal finds that management therefore knew, or ought to have known, that the claimant had suffered from depression and stress.

(n) After the claimant went off sick on 16 June 2005 the respondent did not contact her until a letter was sent on 9 November 2005 by Mr Gregg to ask for permission to get a GP report to determine when the claimant would feel able to return and warning the claimant that the report was likely to affect her continued employment. This was the initiation of the capability dismissal procedure, just under five months after the beginning of her absence.

(o) The Staff Handbook states in the section headed "Capability and Capability Dismissal Procedures" at paragraph C2 as follows:-

"There may also be personal circumstances which prevent you from attending work either for a prolonged period or for frequent short absences. Under these circumstances we will need to know when we can expect your attendance record to reach an acceptable level. This may again mean asking your own doctor for a medical report or by making whatever investigations are appropriate in the circumstances. When we have obtained as much information as possible regarding your condition and after consultation with you a decision will be made about your future employment with us or in your current role or where circumstances permit, in a more suitable role"

(p) The GP report dated 20 December 2005 was a very short report indicating that the claimant, whilst initially slightly worse, would eventually return to work after hospital treatment in approximately 3-6 months, that is, by June 2006 at the latest which would have been approximately one year after the beginning of her sickness absence.

(q) On 29 December 2005 the respondent wrote to the claimant to invite her to a meeting to discuss the GP report and the likelihood of a return to work in the near future.

(r) On 13 January 2006 a meeting took place between the claimant and Mr Gregg to discuss the medical report and the claimant's future with the respondent. The claimant was accompanied by her father. The meeting lasted seven minutes. The claimant ask if the respondent could get a temporary cleaner to enable her to be off work for her treatment and Mr Gregg said that that "wouldn't work".

(s) There were three "bank" staff who could be called upon as required. The respondent used temporary students but only during the Christmas, Easter and summer holidays. Agency employees were used on occasion. In general there were difficulties recruiting staff.

(t) On 18 January 2006 the respondent sent a letter to the claimant dismissing her, stating that there was "no prospect of you returning to work in your current capacity at any time within the foreseeable future".

(u) At the date of dismissal on the 19 January 2006, the claimant had been off work for seven months. The GP report had said in December 2005 that the claimant would be fit to return within 3-6 months following hospital treatment, that is, she would return by end of March or end of June 2006.

(v) On 8 February 2006 the claimant sent a letter to the respondent requesting investigation of her grievance related to the incident on the 16 June 2005 and requesting an appeal of the decision to dismiss. The tribunal finds this letter to have been a step 1 grievance letter in accordance with the statutory grievance procedures in relation to the complaint of harassment.

(w) On 6 March 2006 Mr Gregg wrote a letter to the claimant asking for details of the incident mentioned in the grievance letter.

(x) Under the capability/disciplinary appeal procedure the Staff Handbook states:-

"Paragraph 4 – the appeal procedure will normally be conducted by a member of staff not previously connected with the process so that an independent decision into the severity and appropriateness of the action taken can be made.

Paragraph 5 – if you are appealing on the grounds that you have not committed the offence, then your appeal may take the form of a complete rehearing and reappraisal of all matters so that the person who conducts the appeal can make an independent decision before deciding to grant or refuse the appeal".

5. The appeal hearing took place on 20 March 2006. The claimant attended with her father and the appeal was conducted by Mr Miskimmon.
6. On 31 March 2006 Mr Miskimmon wrote to the claimant dismissing the appeal. He also asked the claimant to raise a formal grievance under the company's procedure or under the statutory procedure in relation to her claim that her stress was due to bullying at work.
7. On two occasions previously, during the claimant's employment, the respondent had obtained specialists' reports on her for reasons unrelated to her disability or this claim.
8. The claimant was unfit to work in the period leading up to the date of her dismissal and there was no suggestion at any time, including during the hearing and submissions, that there was any job that she would have been fit to come back to. It was the respondent's evidence that there were no other jobs other than cleaning for the claimant to do. Any other posts, such as care assistant required training. The claimant remained unfit to do her job at the date of dismissal and the tribunal had no evidence that she would have been fit to carry out any other job.
9. The claimant made the case that she was treated differently to a previous employee, Mrs Bleakley. The claimant said that her job had been held open for a year for her. The evidence from Vi Long and from the documents indicated that Mrs Bleakley resigned after six to seven months of absence due to ill-health. Mrs Bleakley resigned before the respondent started the capability dismissal procedure.
10. The respondent's clear evidence was that, with an employee on long-term absence, at the six-month point they would seek medical evidence to establish when the employee would be fit to return to work. The respondent neither contacted Mrs Bleakley during her absence nor did they instigate the capability dismissal procedure at all. This contrasted with the treatment of the claimant.
11. The claimant has been in receipt of Incapacity Benefit since her dismissal and remains unemployed. Incapacity Benefit is not subject to recoupment.

Findings on medical evidence

12. The claimant has had a long history of depressive illness from childhood and she had been on medication long-term at the time of the act of discrimination. The tribunal has looked carefully at the medical evidence and notes the following:
13. In Dr Harbinson's psychiatric report the claimant reported that she was "more of a recluse" since she lost her job and reported that her sleep was erratic because she did not have the structure of a job to go to.
14. Dr Graham the psychologist's report dated 5 June 2007 states:

"It is difficult at this present time to envisage how she can make a successful full-time return to the workplace in the immediate or near future. However I do feel that her progress and motivation are valuable predictors of longer term success and improved wellbeing should she continue to work diligently on this aspect of her life and functioning".

15. Dr Loughrey's psychiatric report of 20 August 2007 states that the claimant indicated to him that the dismissal 'knocked her confidence' and 'knocked her back' and she felt that her depression had worsened. Dr Loughrey's opinion was that the claimant is depression prone and sensitive by nature. He also states:

"There is no clear evidence that the circumstances in work in 2005 and 2006 have had any profound effect on the nature and course of her depression. However it has had a significant effect on the quality of her life. Work would be therapeutic for this lady as for many other people with her problem, and therefore not having work does have a significant, albeit marginal, effect on her quality of life and the course of her depression. I feel that her sensitive nature and feelings of grievance about what has happened is a significant impediment to her getting back into work although I expect that these issues would be covered as part of her comprehensive treatment input from a clinical psychologist. She would not be permanently unfit for work".

The Law

16. The law on disability discrimination is contained in the Disability Discrimination Act 1995 ("the DDA"), as amended.
17. The law on disability discrimination is outlined and commented upon in Harveys Industrial Relations and Employment Law at Division L Paragraphs 1346 – 1380. The claimant's counsel referred the tribunal to D1 paragraph 1206- 1270 relating to capability dismissals and to paragraphs 1501 and 1529 in relation to fair procedure in unfair dismissal cases. He also referred the tribunal to Division L paragraph 524 regarding aggravated damages and to the Green Book, the guide to compensation in personal injury cases in relation to alleged psychiatric injury. The principles derived from the following cases are relevant to this case:-

O'Hanlon v Revenue and Customs Comrs [2007] IRLR 404 CA

Gibson v EA Staples Shipbrokers LTD [2007] All ER EAT

H J Heinz Co Ltd v Kenrick [1999] EAT

Environment Agency v Rowan [2008] EAT

Home Office v Collins [2005] CA

Rowan v The Environment Agency [2008] IRLR 20

Lewisham LBC v Malcolm [2008] HL

18. Duty to make reasonable adjustments. 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."

19. 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.

20. If the duty to make adjustments arises, the tribunal then goes on to determine whether any proposed adjustment is reasonable to prevent the provision, criterion or practice placing the claimant at that substantial disadvantage.
21. 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).
22. 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.
23. 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. These include modifying disciplinary or grievance procedures. The Disability Code of Practice on Employment and Occupation gives guidance on what those steps might mean in practice.
24. The burden of proof provisions as outlined in the case of Igen Limited v Wong [2005] IRLR 258 CA apply to these proceedings. 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 arises or, that it has not been breached.
25. Disability-related discrimination. The law on disability-related discrimination is set out at Section 3A (1) to (4) of the DDA. Disability-related discrimination occurs when an employer's treatment is for a reason which relates to the employee's disability, the treatment is less favourable than the way in which the employer treats or would treat others to whom that reason does not, or would not, apply and the employer cannot show that the treatment was justified.
26. Before the Malcolm decision, the comparator was someone, either real or hypothetical, to whom the reason for the treatment did not apply, that is, it was someone without the relevant disability who was not subjected to the disability-related treatment. Whether or not the employer had knowledge of the disability was irrelevant to the question of whether this type of discrimination had occurred. (Clarke v Novacold 1999 CA).
27. However, the House of Lords in Malcolm held, by a majority, that Clarke v Novacold was wrongly decided. It decided that the comparator should be a non-disabled person in the same position as the claimant. Mr Malcolm had sublet his council flat in breach of the terms of his tenancy but claimed that, as this act was related to his disability, the council's act in seeking possession of the flat was related to his disability, was discriminatory and had to be justified. The House of Lords held that the comparator should be a person who, for a reason other than disability, sublet his flat in breach of his tenancy. As such a comparator would have been treated the same as Mr Malcolm, there was no less favourable treatment and the claim failed. Malcolm also decided that it was necessary for the employer to have real or imputed knowledge of the claimant's medical condition although it was not necessary for the employer to know that the employee suffered from a disability within the meaning of the DDA.
28. In order to prove facts from which the tribunal could conclude that discrimination has occurred, the claimant must show detriment. The House of Lords decision in Shamoon v Chief Constable of the Royal Ulster Constabulary [2006] UKHL 11 is the authority on what constitutes a detriment for the purposes of discrimination proceedings. The concept of detriment is broad in scope but it is not without limit. The question for the tribunal in determining detriment is whether the treatment was of such a kind that a reasonable worker would, or might, take the view that, in all the circumstances, it was to his detriment. It is not necessary to demonstrate some physical or economic consequence and an unjustified sense of grievance cannot amount to a detriment. It is an objective test which must be applied.
29. The burden of proof provisions apply to this aspect of discrimination as follows. The employee 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 without his disability but otherwise in his position, 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 the employee has not suffered the less favourable treatment for a disability-related reason or, if he has, that the treatment was justified.
30. In order for the treatment to be justified the reason for the treatment must be both material to the circumstances of the particular case and substantial. This is an objective test which is akin to the "band of reasonable responses" test applicable in the unfair dismissal sphere. In order for the respondent to prove justification the reason for the treatment must be both material and substantial, that is, it must carry real weight. This is a less demanding test than the reasonableness of adjustments. The tribunal should not substitute its own view and it is a low threshold for the employer to surmount. These principles were made clear in Jones v Post Office 2001 CA.
31. Harassment. Harassment is defined at section 3B of the DDA as follows:-

"3B. – (1)… a person subjects a disabled person to harassment where, for a reason which relates to the disabled person's disability, he engages in unwanted conduct which has the purpose or effect of –

(a) violating the disabled person's dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2) Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it could reasonably be considered as having that effect."

32. The burden is on the claimant to prove facts from which the tribunal could conclude that she suffered such unwanted conduct related to her disability, which had the required purpose or effect. If the claimant proves such facts the burden shifts to the respondent to prove that the treatment was not related to disability or that it did not have the alleged purpose or effect.
33. Unfair dismissal. The right not to be unfairly dismissed is set out at Article 126 of the Employment Rights (Northern Ireland) Order 1996. Potentially fair reasons for dismissal are listed at Article 130 of the Order and one of the potentially fair reasons relates to the capability of the employee. The burden is on the employer to show that the dismissal was for one of the potentially fair reasons and the tribunal then considers whether the dismissal was fair in the circumstances.
34. The considerations relating to a capability dismissal for ill-health are outlined in Harvey. The question for the tribunal in looking at the dismissal of an employee absent for ill-health is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer. The relevant circumstances include the nature of the illness, the likely length of the continuing absence, the need of the employer to have done the work which the employee was engaged to do, and whether the employer was adequately informed.
35. The statutory disciplinary and dismissal procedures (DDP) are set out in the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations and Employment (Northern Ireland) Order 2003. Essentially there are three steps in the minimum disciplinary and dismissal procedure. Step 1 involves the employer writing to the employee setting out the grounds for the proposed action and inviting the employee to a disciplinary meeting to discuss the matter. Step 2 involves holding a meeting and notifying the employee of the decision and the right of appeal. Step 3 involves inviting the employee to an appeal meeting, if the employee avails of the appeal process, and notifying the employee of the appeal decision. All actions under the procedures must be conducted without unreasonable delay, the timing of and place of the meetings must be reasonable and the formal meetings must be carried out in a way which allows both employer and employee to explain their cases. Appeals should be decided by more senior managers than the original decision-maker as far as is reasonably practicable. The employee has the right to be accompanied by a colleague or a trade union official at all meetings if he so requests.
36. Statutory grievance procedure. The statutory grievance procedure (SGP) is set out in the Employment (NI) Order 2003 and Employment (NI) Order (Dispute Resolution Regulations. This procedure does not apply where an employer has dismissed or is contemplating dismissal of an employee. It therefore applies to this claimant's complaint of harassment and stipulates that if the non-completion of the SGP is the employer's fault that any compensation awarded must be uplifted by 10% and may be uplifted by up to 50%.
37. The law in relation to the loss of earnings issue in cases where the dismissed employee is unfit to work, is outlined in the EAT decision of Devine v Designer Flowers Wholesale Florists Sundries Ltd 1993 IRLR 517 and confirmed in the Court of Session decision in Dignity Funerals Ltd v Bruce 2005 IRLR 189. Both cases confirm that it is for the tribunal to decide how far the illness was attributable to the employer's action in dismissing the employee and confirm that the tribunal has the power to award compensation for loss of earnings even though the respondent at the relevant time was incapable of working if that incapacity was due wholly or in part to the dismissal.

Conclusions

38. Mr Gregg did not follow the company's own procedures in investigating the grievance relating to the incident on the 16 June 2005. Essentially he had a discussion with the alleged harassers, wrote a one-page report and did not tell the claimant the outcome. The tribunal finds it incredible that Mr Gregg did not connect the reference to an incident on 16 June 2005 in the grievance letter of 8 February 2006 to the incident which he had investigated in a cursory manner eight months previously. It was reprehensible for the respondent not to deal with the grievance in accordance with its procedures but this can only result in an uplift in damages in this case if the tribunal finds the harassment claim to be well founded.
39. The tribunal finds it incredible that the capability meeting of the 13 January 2006 lasted only seven minutes. The tribunal does not find this to have been a full discussion of the claimant's situation and the options. It was much too short a meeting, particularly in view of the type of condition suffered by the claimant. Whilst the brevity of the meeting contributed to the unfairness of the claimant's dismissal as it indicated that the respondent did not consider the options sufficiently, the dismissal process did, however, comply with the statutory minimum DDP.
40. The tribunal finds that the respondent should have obtained another report, possibly from a specialist, particularly as the claimant was undergoing treatment in hospital, so that the respondent could get a second, more detailed, opinion. The very short GP report was not enough for the respondent to make a decision to dismiss for incapability. The respondent had obtained specialist reports on the claimant twice previously for other unrelated matters so it was not an unknown procedure for them to have done so. In the circumstances, the termination of her contract was too hasty.
41. The hearing of the appeal against dismissal took place in March 2006. Any discussion between Mr Gregg and Mr Miskimmon did not, in the tribunal's view, undermine Mr Miskimmon's independence at the appeal. Mr Miskimmon should have looked at the whole matter afresh. This is one of the reasons why the person dealing with the appeal is different from the decision maker.
42. The problem with the appeal was that it should have been a rehearing of all issues, and this it was not. Mr Miskimmon's attitude was that it was for the claimant to prove that she had been unfairly dismissed and it was her chance to give more information. It was incumbent on Mr Miskimmon to have availed of the opportunity to obtain more information such as a further medical report. The appeal process should have been a rehearing of all the issues. It was the employer's chance to cure any problems that might have occurred with the procedure prior to that point. At the appeal stage the respondent could, and should, have got a second opinion from the psychologist mentioned by the claimant in her letter of appeal.
43. The minutes of the appeal hearing record that the claimant agreed with Mr Miskimmon's statement that she would not be fit for 6-12 months. The claimant vehemently denied this at hearing. The tribunal finds it unusual that the minutes of the meeting appear not to have been sent to the claimant for her comments or approval. This, in this tribunal's experience, is not the norm. Mr Miskimmon's evidence was that he only looked at any of the background information after the appeal hearing. His evidence was that he wanted to go into the appeal with a clear mind but he actually went in with no knowledge at all of the background and the tribunal finds this to have been a defect in the appeal procedure. If Mr Miskimmon went in with no knowledge of the background so that he would have a clear mind the tribunal finds it hard to understand how it is recorded that he stated to the claimant in the meeting that she would not be fit for 6-12 months. In these circumstances we accept the claimant's consistent denial that she agreed with this statement in the meeting. The only evidence therefore before the appeal hearing in March relating to the prognosis for a return to work, remained that of the GP and he had stated that the claimant could be fit to return to work by June.
44. Whilst the claimant's representative indicated that a copy of the Handbook should have been given to the claimant, the tribunal does not agree that this was a necessity to make the process fair. Whilst some employers might have referred to the Handbook in their letters during the process, the tribunal finds that it was within the band of reasonable responses for a reasonable employer not to make specific reference to specific paragraphs in the Handbook in the course of correspondence.
45. It was unreasonable of the respondent to ask the claimant to raise a formal grievance after the appeal, as she had already raised such a grievance on 8 February 2006 and it had not been dealt with. The tribunal does not accept this as evidence that the respondent's decision to dismiss was pre-determined and that, effectively, the process was a sham. The fact that the two managers from the respondent company did not follow their own procedures could be because of a lack of training. Lack of training of managers, of itself does not render this dismissal unfair. Rather the tribunal finds that the process of assessing the claimant's capability was dealt with unfairly, in that the respondent's own processes were not adhered to and the claimant was thereby treated unreasonably.

Unfair Dismissal

46. The tribunal finds that the reason for the dismissal was capability. The tribunal rejects the claimant's contention that the dismissal was pre-determined and rejects the contention that the respondent was obliged to seek alternative employment for the claimant. The fact was that the claimant was unfit to work and there was no evidence of any job to which she could have returned nor was there any available suitable work for her. Whilst the reason for the dismissal was for one of the potentially fair reasons outlined in the legislation, the tribunal finds that the dismissal was unfair in the circumstances. As found above, there was insufficient medical investigation, the respondent was too hasty to dismiss the claimant and the procedure was flawed. This is one of those cases where the employer should have 'gone the extra mile' in view of the short further period predicted by the GP and particularly in view of the claimant's allegation that her stress was caused by a bullying incident which had been dealt with unsatisfactorily and in breach of the respondent's procedures.

Harassment

47. It is for the claimant to prove facts from which the tribunal could conclude that any behaviour was related to her disability. The claimant's perception is only one of the factors for the tribunal to take into account when it applies the objective test of harassment referred to in the Act. The tribunal finds that there is no evidence to show that the behaviour on the 16 June 2005 was related to the claimant's disability. The only possible link to any disability could be the words "you're mad" but the tribunal finds that this is insufficient especially as the claimant paraphrased the words used and did not at any other stage, for example, when recounting the incident to her two doctors, mention words along those lines. Indeed in setting out the account of the incident which she gave to Dr Harbinson, the Dr's report states: "Angela then asked the cook if she had a problem with her. She said the cook mumbled something and gave her dirty looks". The words "you're mad" are general words heard commonly in the cut and thrust of interaction between workers and the tribunal does not find that those words of themselves, indicate a link with the claimant's stress and depression in the context of the incident as recounted by her namely that she always "got on great" with Phyllis and she used to have a "great relationship" with her.
48. In these circumstances the tribunal finds that the claim does not surmount the first hurdle which is to prove, on a balance of probabilities, facts from which we could conclude that she was harassed in relation to her disability or, to the fact that she is a disabled person. The tribunal therefore dismisses the claim of harassment. The incident as recounted by the claimant was, however, capable of amounting to bullying in the general sense and certainly warranted a proper investigation by the respondent.
49. The formal grievance that was raised was admitted by the respondent not to have been dealt with. The respondent invited the tribunal to limit the uplift on the compensatory award to 10% whilst the claimant's representative invited the maximum uplift of 50%. As the harassment claim has failed there is no compensation to be uplifted.

Duty to make Reasonable Adjustments

50. The tribunal went through the Rowan steps and firstly determined the provision criterion or practice alleged to have placed the claimant at a substantial disadvantage. The tribunal finds that the requirement that the claimant return to work in the circumstances of this case, placed her at a substantial disadvantage compared to someone without her disability because she was unable to do so due to her incapacity whilst receiving treatment for her condition. This placed her job in jeopardy which clearly constituted a disadvantage which was substantial.
51. In the Code of Practice at page 89, one of the examples of a potentially reasonable adjustment is the modifying of disciplinary/grievance procedures. Even if this example in the Code does not fit precisely with the situation in this case, the tribunal finds that extending the period to allow the claimant to return to work or to establish a medical prognosis with more clarity would have amounted to a reasonable adjustment in this case. Whilst cost was a factor for the respondent, the respondent could have used the pay that they saved, because the claimant was on reduced pay, to pay someone to do her duties on a temporary basis. The respondent had taken on temporary staff in the past and could have taken on temporary staff for a limited period to enable it to establish the clear medical prognosis or to see if she improved in a short period in line with the GP's expectations. The claimant has therefore proved facts from which the tribunal could conclude that the duty to make reasonable adjustments arose and was breached. The burden therefore shifts to the respondent to prove that the duty did not arise or was not breached. The respondent failed to satisfy the tribunal on that score and the claimant therefore succeeds on this aspect of the claim.
52. The second aspect of the claim for failure to make reasonable adjustments was in relation to the procedure adopted in the dismissal process. The tribunal finds that the duty does not arise in relation to this aspect of the claim as the claimant has not shown that the process adopted placed her at a substantial disadvantage compared to those who were not disabled. The tribunal has already found the process to have been unfair in relation to unfair dismissal but finds that there was no substantial disadvantage suffered by the claimant related to her depression in relation to the process itself. The claimant made no complaint about the way the meetings were set up or about the timing of meetings nor about their conduct other than that one was too short and did not explore the options properly. In those circumstances there was nothing for the respondent to do to accommodate the fact that she suffered from depression. Essentially her complaint was about the hastiness of the decision to dismiss.
53. Both aspects of this part of the discrimination claim centre on the capability dismissal process. The SGP therefore does not apply and no uplift is applicable on that ground. The tribunal has not found there to be a breach of the minimum standard required by the DDP and therefore no uplift is applicable.

Disability-Related Discrimination

54. The treatment was the dismissal of the claimant and the reason for the treatment which was related to disability, was firstly, the initiation of the capability dismissal process less than five months after the commencement of her absence and, secondly, her dismissal for absence from work.
55. Initiation of absence procedure. The comparator under Malcolm is someone in the claimant's position in respect of whom the capability dismissal procedure ought to have been commenced. The claimant's counsel relied on an actual comparator in the form of Mrs Bleakley who resigned following six to seven months of sickness absence. The respondent did not contact Mrs Bleakley during that absence and did not initiate the procedure despite the respondent's evidence that the procedure should be triggered after six months' absence. The claimant was made the subject of the procedure sooner than the procedure required and certainly there was a difference in treatment between the claimant and the comparator. Applying the Shamoon test, the tribunal finds that to have been less favourable treatment as, clearly, once the claimant had the procedure applied to her, she was on the road to possible dismissal. The reason for the treatment was the claimant's absence due to her disability and the tribunal therefore finds the treatment to have been related to her disability.
56. Dismissal related to disability. The comparator relied upon here is a hypothetical one so the question for the tribunal is how the respondent would have treated a hypothetical employee in the claimant's position without her disability but with the same level of absence and her prognosis for a return to work. The claimants counsel submitted that the treatment of Mrs Bleakley was evidence pointing to the way that such a comparator would have been treated. The tribunal finds that a hypothetical comparator would not have been dismissed as hastily as the claimant. Not only had Mrs Bleakley not been the subject of the procedure, no contact at all had been made to see how long she would be off. The tribunal therefore finds less favourable treatment compared to a hypothetical comparator because the claimant was dismissed hastily without further investigation of the prognosis when a hypothetical comparator would not have been so treated.
57. The claimant therefore suffered less favourable treatment than her comparators and this amounted to disability-related discrimination as the respondent has failed to satisfy us that no such discrimination occurred. No justification defence was raised by the respondent to the disability-related discrimination claim. The tribunal does not find the treatment to have been justified given its findings on unfair dismissal namely that the respondent dismissed too hastily without establishing the full medical prognosis and without following their own procedures.
58. As the disability-related discrimination claim centred on the period when the respondent was contemplating dismissing the claimant, the SGP did not apply and no percentage uplift is therefore, applicable as the tribunal has found that the minimum DDP was complied with.

Compensation

59. The dismissal was a contributory factor to her ongoing unfitness to work according to the medical evidence. She had been off work for 6-7 months by the time of dismissal with the prognosis of a possible return to work within 3-6 months. The tribunal has weighed up the fact that she was off work at the time of dismissal, the prognosis at the time of dismissal, the effect on her progress that the dismissal and associated distress had, and the tribunal has taken into account the decisions in the Devine case and the Bruce case. The tribunal estimates that a further period of 36 weeks from the date of the substantive hearing, would be reasonable for the claimant to be in a position to obtain part-time cleaning work. The fact that this case has now been finalised in her favour should help the claimant move on fairly quickly. The tribunal has decided that it would be just and equitable to reduce the figure for loss of earnings by 50% because of the numerous previous problems which the claimant suffered from which led to her being off work before the dismissal. The tribunal therefore has decided that this 50% reduction of the loss of earnings would be fair in the circumstances to take account of the fact that not all of her continuing incapacity is attributable to the dismissal.
60. Holiday pay was agreed by the parties to be due and owing in the sum of £220.00
61. Unfair dismissal (all figures are calculated to the nearest £):

(i) Basic Award –

£132.00 gross x 3 full years worked x Multiplier 1 = £396.00

(agreed by parties)

(ii) Compensatory award - EDT 19 January 2006

(a) Loss of statutory industrial rights £250.00

(agreed by parties)

(b) Loss of earnings between EDT and date of hearing 3 March 2008,

109 weeks @ £105 net = £11,445

Deduct benefits received = £10,130

Difference between loss of earnings and benefits received= £1,315

Deduct 50% = £657

(c) Loss of Earnings from date of hearing

The agreed figure for the diminution in earnings that is the difference between the benefits received now and the earnings she would have received if she had remained at out amounted to £27.55 per week. The calculation from the date of hearing of 3 March 2008 until 10 November 2008 ie the 36 weeks is as follows:-

£27.55 x 36 weeks x 50% = £496

Total compensatory award = £1403

Unfair dismissal compensation: Basic award: £ 396.00

Compensatory award: £1403.00

Interest on award from mid-point date (19 May 2007)

@ 8% per annum: £191.89

Total £1990.89

Compensation for Disability Discrimination

62. The tribunal finds that the claimant had a significant baseline of problems which had been going on from childhood and required long-term medication. However there clearly was extra distress on top of her existing problems because of the treatment she suffered at the hands of the respondent and that treatment hit her harder than an individual who did not have her existing problems. The respondent must take the victim as it finds her and in these circumstances, the tribunal finds this case to fall within the middle Vento range for injury to feelings and assesses compensation under that heading at £11,000. The tribunal has borne in mind that the middle band is £5,000 to £15,000 set in 2003 and that inflation has had an effect on values. There is no uplift on the award as there was no claim that the statutory dismissal procedure was breached and the tribunal has not found any such breach.
63. There is no indication in the medical evidence that her actual psychiatric condition worsened as a result of the treatment, nor is there any evidence of any other psychiatric injury flowing from the discriminatory treatment. The tribunal therefore awards no sum for psychiatric injury as there is no evidence that any such injury occurred as a result of the discriminatory treatment.
64. The tribunal rejects the claimant's request for aggravated damages as it finds no evidence of oppressive, high-handed or malicious or insulting treatment. In the tribunal's view the defects in the respondent's procedures and treatment of the claimant were borne of ignorance or incompetence rather than malice or high-handedness. The figure for injury to feelings adequately compensates the claimant for the discriminatory treatment.
65. The tribunal considered that it should award interest under the provisions of the Industrial Tribunal (Interest on awards in Sex and Disability Cases) Regulations (NI) 1996. Interest is, therefore, payable on compensation for injury to feelings from the date of dismissal 19 January 2006 to the date of calculation 19 September 2008 at the rate of 8% per annum. The calculation for interest is therefore:

2 years and 8 months x £880 pa = £2347

Total compensation for unlawful discrimination = £13,347

This is a relevant decision for the purposes of the Industrial Tribunal (Interest) Order (NI) 1990.

Chairman:

Date and place of hearing: 3-6 March 2008, 25 April 2008 and 5 September 2008 at Belfast

Date decision recorded in register and issued to parties: