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Cite as: [2008] NIIT 3972_03IT, [2008] NIIT 3972_3IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 3972/03IT

CLAIMANT: W Ivan Black

RESPONDENT: Ballyrobert Limited

DECISION

The unanimous decision of the tribunal is that:

The claimant was constructively dismissed and that dismissal was unfair. The tribunal therefore orders the respondent to pay the claimant the sum of £53,500 by way of compensation for unfair dismissal.

The claimant was unlawfully discriminated against contrary to the Disability Discrimination Act 1995 by the respondent, and the tribunal orders the respondent to pay the claimant the sum of £16,523 by way of compensation for injury to feelings including interest.

The total sum awarded is therefore £70,023.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Members: Ms M Mulligan

Mr J Law

Appearances:

The claimant was represented by Mr J Dunlop, Barrister-at-law instructed by King and Gowdy Solicitors.

The respondent was represented by Mr G Ridgeway, Barrister-at-law of Employment Law Advisory Services.

The Claim

1 . The claimant's claims were as follows:

(a) that the claimant was constructively dismissed on the 15 May 2003 contrary to Article 126 of the Employment Rights (NI) Order 1996 having been forced to resign because of the respondent's actions towards him;

(b) that the respondent was unlawfully discriminated against on the grounds of disability-related discrimination contrary to the Disability Discrimination Act 1995 ("the DDA");

(c) that the respondent failed to make reasonable adjustments contrary to the DDA.

The Issues

The issues for the tribunal to determine were as follows:

(i) was the claimant dismissed;

(ii) if the claimant was dismissed was that dismissal for a fair reason and was it fair in all the circumstances;

(iii) was the respondent guilty of disability-related discrimination and if it was, was that discrimination justified;

(iv) did a duty to make reasonable adjustments under the DDA apply to the respondent; did the respondent fail in any such duty and was any such failure justified.

Sources of Evidence

The tribunal heard evidence from the claimant, his wife Mrs Myrtle Black, his former colleague Mr Derek Woods, his Minister Reverend Ray Cotter and the claimant's former colleague Ms Michelle Hamilton. The tribunal heard evidence for the respondent from Mr Robert John Lyle who was responsible for overseeing the entire operation of the respondent company, Mr Desmond Marshall, Mr Noel Miller, Mr Terence Sandford and Mr Melvin Slaine. The tribunal also had an agreed bundle of documentation and witness statements from each of the witnesses. Both counsel provided written and oral submissions.

4 Findings of Fact

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

.1 The claimant was born on the 12 July 1941 and started work with Dencourt Motors on the 1 April 1997. Dencourt went into administrative receivership in July 2001 and in that month the claimant moved to the Mallusk site from the Ravenhill Road site. Ballyrobert Limited took over Dencourt's business from the administrative receivers in September 2001. It was agreed between the parties that the claimant's contract with Dencourt Motors was taken over by Ballyrobert Limited by virtue of the transfer of undertakings (TUPE) legislation.

.2 The claimant worked for the Ballyrobert car dealership until he resigned on the 15 May 2003. The claimant was well known to Mr Lyle and his father having previously worked with Mr Lyle's father. He had had years of exemplary service with the respondent with no issues in relation to his conduct or honesty. He had had an episode of stress-related illness from which he had recovered in the early 1990s and Mr Lyle knew about this. The claimant had several stressful events in his private life in December 2001, May 2002 and June 2002, but he was able to continue to work during this period. Mr Lyle was aware of at least one of these stressful events.

.3 The claimant's job at Ballyrobert was as Sales Manager and Financial and Insurance Consultant. This job involved setting up finance and insurance on car sales. The claimant dealt with customers in relation to finance and insurance and was also the supervisor of salesmen regarding the finance side of the business.

.4 The claimant had autonomy in determining which finance deals to recommend within the parameters set by the company. It was agreed between the parties that the claimant received a letter from Ian Davidson the General Manager at Bangor stipulating that finance business should be placed with the three preferred companies namely: NIIB, Bank of Scotland and Lombard and Ulster, in that order. Blackhorse Finance ("Blackhorse") was the preferred company for some deals in the period January to April 2002 because of a special deal with that company for that period.

.5 The claimant would try to place finance business with two other companies Vauxhall Finance and Blackhorse Finance if he could not place business with the three preferred companies. It was agreed by the respondent's witnesses that if one could not place finance business with the preferred companies a Finance Manager should place that business with any company including Blackhorse rather than lose business. The claimant gave several reasons as to why in some circumstances he could not place business with the preferred three companies.

.6 On the figures and documentation produced by the respondent there was no evidence that the claimant preferred Blackhorse over the other companies nor that the claimant sent business to Blackhorse at a more frequent rate than other companies, as alleged by the respondent in proceedings. Indeed the sample of documents showing a finance deal which the respondent did produce showed that the customer in question was turned down by the preferred companies before the claimant referred the customer to Blackhorse and this accorded with the claimant's evidence. The extract from the logs prepared by Mr Lyle did not show that the claimant was preferring Blackhorse. They show that the majority of work was going to the preferred companies apart from a period when a special deal was in operation with Blackhorse during January to April 2002.

.7 Bonus and incentive schemes were a feature of the car business and benefits could be of a sizable value including expensive holidays.

.8 The "Q point" system was a system operated by Blackhorse whereby an individual manager got points which he could use via Blackhorse to buy goods or holidays. The claimant and other managers received Q points when they were in Dencourt Motors.

.9 Fiona Hamilton of Blackhorse told the claimant in 2000 that the Q point system had been set up. That system could only have been set up with the knowledge of the company and the tribunal finds that the Q points system was set up between Blackhorse and Dencourt Management and finds that the operation of the Q point system was in no way a clandestine arrangement between the claimant and Blackhorse as alleged by the respondent. Mr Slaine from Blackhorse confirmed that it would be inconceivable that the company did not know that deals with his company attracted Q points. There was no obligation on the claimant to alert Ballyrobert when they took over the Dencourt business that Q points were in existence.

10 The respondent's case was that there was two rates of Blackhorse incentives: one attracting Q points and one which did not. The respondent also asserted that they lost £46.50 in every £50 of commission earned although no evidence was produced to show this other than Mr Lyle's assertion. There was no evidence that two rates, one with Q points and one without, were in operation and the tribunal accepts the claimant's evidence that he was unaware of two rates and simply believed that Blackhorse deals attracted Q points which were with the full knowledge of management. The Q points ceased at the end of June 2002.

.11 An undated anonymous letter was produced which stated that Mr Black was receiving remuneration from Blackhorse privately. The tribunal found the circumstances of the appearance of the anonymous letter most odd but in any event Mr Lyle asserted that he received the letter on the 28 August 2002 and met with Mr Slaine of Blackhorse to establish some information about the Q points system. Mr Slaine had only joined Blackhorse a few months previously.

.12 As a result of receiving the anonymous letter and the discussion with Mr Slaine, Mr Lyle and his sister held a meeting with the claimant on the 30 August 2002 to discuss the issue of Q points. The respondent characterised that meeting as an investigatory meeting although no minutes were taken and the claimant was not aware that it was an investigatory meeting. The claimant confirmed that he received Q points and expected the respondent to get back to him with more information on specific deals if any more information was required.

.13 There was no investigatory work done between that conversation with the claimant and the disciplinary meeting which was then proposed on the 4 September 2002.

14 On 4 September 2002 the claimant received a letter from the respondent giving him one day's notice of a disciplinary meeting to take place on the 5 September 2002. The respondent characterised the investigation and the disciplinary proceedings as urgent and suspended the claimant pending the outcome of the disciplinary process.

.15 The alleged disciplinary offences outlined in the letter were "conflict of interest" and breaching the contract terms relating to gifts and depriving the company of income. None of these offences fell within the categories of gross misconduct in the contract.

.16 The contract stipulated that an employee could be suspended from duty if suspected of gross misconduct or "if, because of some good and urgent cause the continued attendance of the employee at work could not be permitted". The tribunal finds that there was no such good and urgent cause in this case.

.17 The respondent contravened its own procedures in that the Managing Director took immediate control of the disciplinary process rather than the claimant's line manager.

.18 The claimant was disabled within the meaning of the DDA from the 4 September 2002 being the date on which he went off sick. The claimant remained on sick leave until his resignation.

.19 Throughout the period of the claimant's absence his doctor's line stipulated that he was suffering from stress and anxiety. The respondent characterised the claimant's assertion that he was not fit to deal with the disciplinary meeting, as "running away" from his responsibilities and found his sick leave to be a "convenient" way of not facing up to the accusations against him.

.20 Mr Lyle appeared, to the tribunal, to characterise the claimant as a fraudster from the moment he got the anonymous letter and had confirmation from Blackhorse that Mr Black was in receipt of Q points. Mr Lyle took the claimant's sick leave as confirmation of the fraud which he believed had been committed. It was only after the claimant submitted his sick lines that the allegations were characterised in correspondence as fraud whereas previously, in the initial letter inviting him to the disciplinary proceedings, it was characterised simply as breach of contract. The respondent's undated letter, sent to the claimant in early October, increased the pressure on the claimant by characterising the allegations as fraud and indicating that decisions could be made in his absence and that he could be dismissed.

.21 Further correspondence ensued between employer and employee with the respondent asking the claimant to respond to fraud allegations in writing and with the claimant asking for documents, for a full investigation to take place and essentially stating that he could not deal with the allegations due to his illness.

.22 The respondent wrote to the claimant's GP on the 4 February 2003 requesting his view on what the claimant's likely return to work date would be and also enquired as to whether or not he would be disabled. It is clear from that document that disability was in the respondent's mind as a possibility at this stage.

.23 The GP provided a report on the 11 February 2003 outlining the claimant's problems and indicating that due to family bereavements in December 2002 his progress was hampered.

.24 The respondent wrote to the claimant on the 28 April 2003 stating "we would seek to make you aware that we are deeply suspicious of the fact you went off sick when confronted with this disciplinary matter". It advised that the allegation that he would have to meet was that he: "fraudulently collected points in an effort to enrich yourself and defraud the company". Again the issue of the potential for dismissal due to the extremely serious nature of the allegations was repeated. The respondent also stated: "obviously if you are able to demonstrate that you have not committed any fraudulent acts then this will enable us to find out what has occurred".

.25 On the 1 May 2003 the claimant wrote to the respondent indicating that he would not be fit to attend the disciplinary hearing and asking the respondent to reconsider the invitation to attend. The claimant stated that, due to his ill-health and the cloud of suspicion which was over him and, because of the manner in which the respondent had acted, he would regard himself as dismissed if he was compelled to attend a disciplinary hearing.

.26 The disciplinary hearing went ahead in the claimant's absence on the 6 May 2003. The minutes of that meeting were sent to the claimant on the 9 May 2003 asking for answers to six questions. In the minutes of the meeting of the 6 May the respondent records some details of the un-minuted investigatory hearing which had taken place on 30 August 2002. It records that the claimant confirmed that the Blackhorse deal had been going on for two years and that the points had paid for his holiday the previous year. It also confirms that the claimant said at the time that he was not aware that there were two finance rates for the company. This accords with the claimant's evidence of what occurred in that initial un-minuted meeting.

.27 The minutes of the 6 May 2003 also record the statistics gathered by Mr Lyle on deals from October 2001 which do not show the majority of business going to Blackhorse except in the period of February to April 2002 and in the minutes this is related to Mr Black's holiday which took place sometime after that. The claimant's uncontradicted evidence at hearing was that this period covered a period when there was a special deal with Blackhorse on particular cars and that was the reason for the high percentage of work going to that company. The respondent could easily have checked before the disciplinary hearing if there was a reason for the jump in business to Blackhorse for that period.

.28 The last of the six questions itemised in the minutes which the respondent asked the claimant to respond to stated as follows: "Ivan Black has intimated that the Blackhorse voucher deal was set up is before Ballyrobert took over Dencourt Motors. If that is the case surely Ivan Black realised that the change of ownership would dictate new policies in place especially once he was informed in writing of changes i.e. memo sent by Ian Davidson? Would Ivan Black have any objection to Ballyrobert speaking to previous Management or Directors of Dencourt Motors to confirm any information we require?" The respondent could easily have checked this without reference to the claimant.

.29 On 15 May 2003 the claimant sent a letter to the respondent indicating his shock and distress following receipt of the letter of the 9 May with the minutes of the disciplinary meeting which had taken place in his absence and stated: "I am not prepared to be a party to such a charade given my present circumstances. You leave me with no alternative other than to resign from my employment and treat myself as constructively dismissed as by your conduct you have clearly repudiated the terms and conditions of my employment with the company".

.30 On the 22 May 2003 the respondent sent a letter to the claimant accepting his resignation and alluded to the claimant's "persistent non-attendance" at disciplinary meetings despite the fact that all but the last of the meetings were rearranged due to the claimant's ill-health. The tribunal finds this letter to show that the respondent had no regard to the claimant's illness. The respondent also stated: "We confirm we have involved the police in this matter given the seriousness of the allegations against you and confirm their involvement." The respondent also threatened to pursue the claimant for costs if he proceeded with any constructive dismissal claim.

5 The Law

.1 The claimant's representative referred the tribunal to the following cases in submissions:

- Lewis -v- Motorworld Garages 1985 IRLR 465

- Crampton –v- Dacorum Motors Limited 1975 IRLR 161

- Mitchell –v- Arkwood Plastics (Engineering) Limited 1993 ICR 471

- East Lyndsey DC –v- Daubney 1977 IRLR 187

- Post Office –v- Strange 1981 IRLR 515

- Polkey –v- The AE Dayton Services Limited 1987 3 WLR 1153

- Woods –v- W.M Car Services Limited 1982 IRLR 413

- Malik –v- BCCI 1997 IRLR 462

- Grange Furnishings Ltd 1977 IRLR 206

- British Telecommunications PLC –v- Pousson UK EAT/0347/04/SM

- Archibald –v- Fife Council 2004 IRLR 651

- Rothwell –v- Pelikan Hardcopy Scotland Limited 2006 IRLR 24

- Southampton City College –v- Randall 2006 IRLR 18

- Clarke –v- Novacold 1998 IRLR 420

- Jangra –v- Gate Gourmet London Ltd EAT 608/01

2 The respondent's representative referred the tribunal to the following cases

in submissions:

- Western Excavating (CCC) Ltd –v- Sharp 1978 IRLR 27

- Wilton –v- Cornwall and Isles of Scilly Health Authority 19/5/93 Court of Appeal (unreported)

- Bashir -v- Brillo Manufacturing 1979 IRL 295

- Tuck –v- Fish brothers EAT 0380/01

- Heinz –v- Kenrick [1999] EAT

- Tesco Stores Ltd –v- Pook and ors High Court (Chancery Division) [2004] IRLR 618

- Devine –v- Designer Flowers Wholesale Florist Sundries Ltd [1993] IRLR 517

Unfair dismissal

.3 The law on unfair dismissal is to be found in the Employment Rights (Northern Ireland) Order 1996. Under Article 126 it is stipulated that an employee has the right not to be unfairly dismissed. Under Article 127(1) (c) an employee can regard himself as dismissed if he resigns by reason of the employer's conduct. If dismissal is proved by the claimant the tribunal then must go on to consider the finding of dismissal under Article 130 and it is for the respondent to show that the dismissal fell within one of the fair reasons and, in this case, the relevant reason engaged would be Article 130(2)(b) relating to conduct. The tribunal then goes on to decide whether the dismissal was fair or unfair in the circumstances under Article 130(4) (a) and (b).

.4 The seminal case of Western Excavating – v- Sharp Limited 1978 IRLR 27 outlines the four key elements of constructive dismissal which the claimant must prove as follows: -

(i) there must be a breach of contract by the employer;

(ii) the breach must be sufficiently serious to justify the employee resigning;

(iii) the claimant must leave in response to the breach and not for some other unconnected reason; and

(iv) the employee must not delay too long in terminating the contract in response to the employer's breach.

.5 The case of Waltham Forest Borough Council –v- Omilaju [2005] IRLR 35 is the Court of Appeal decision on the "last straw" principle. Under this principle, an employee can be justified in resigning following a relatively minor difficulty with his employer if it is the last in a serious of acts, one or more of which, amounted to a breach of contract, and cumulatively the acts amounted to a sufficiently serious breach of contract to warrant resignation amounting to dismissal. The case of Malik confirms that there is an implied term in the employment contract that the employer will not conduct itself in a manner likely to damage the relationship of trust and confidence between the employer and the employee. If the employer breaches that term, it can amount to repudiation of the contract.

Disability Discrimination

.6 The events in this case occurred before the changes brought about by the The Disability Discrimination Act 1995 (Amendment) Regulations 2004 so the tribunal in this case must apply the law as it stood in 2002. The two relevant aspects of the Disability Discrimination Act 1995 engaged in this case relate firstly, to the duty to make reasonable adjustments and secondly, to direct discrimination which is now termed disability-related discrimination. Both aspects of discrimination are capable of justification in accordance with the position pre-2004.

.7 The duty to make reasonable adjustments is found at section 6 of the DDA which stated (so far as relevant to these proceedings) as follows:

"6. – (1) – Where –

(a) any arrangements made by or behalf of an employer…

place the disabled person considered 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 circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.

(2) Subsection (1a) applies only in relation to –

(a) arrangements for determining to whom employment should be offered ;

(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any either benefit is offered or afforded."

.8 At section 6(3) are examples of steps which an employer may have to take in relation to a disabled person. This list is not exhaustive.

.9 The employer only has a duty to make an adjustment if it knows or could reasonably be expected to know that the employee has a disability and is likely to be placed at a substantial disadvantage. There is no need for a specific comparator in the case of failure to make reasonable adjustments as the duty, if it arises, is owed to the individual disabled person. Failure to make reasonable adjustments at the relevant time in this case could be justified under the legislation. Justification can only be established if the reason for the failure to make reasonable adjustments was both material to the circumstances of the particular case and substantial and this is an objective test.

.10 Disability-related discrimination is outlined at section 5 of the DDA which stated as follows at the relevant time:

"5. - (1) For the purposes of this Part, an employer discriminates against a disabled person if-

(a) 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

(b) he cannot show that the treatment in question is justified.

(2) For the purposes of this Part an employer also discriminates against a disabled person if –

(a) he fails to comply with the section 6 duty imposed in him in relation to the

disabled person; and

(b) he cannot show that his failure to comply with that duty is justified

(3)Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(4)For the purpose of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.

(5)If, in a case falling in subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if it he had complied with the section 6 duty".

.11 In determining whether disability-related discrimination has occurred, the employer's treatment of the disabled person must be compared with that of a person to whom the disability-related reason does not, or would not, apply. This was the comparator identified by the Court of Appeal in the case of Clarke –v- TDG Limited trading as Novacold 1999 INRL318. It is not necessary for an employer to know that an employee is disabled in order to discriminate against him for a disability-related reason. It is for the tribunal to judge objectively the relationship between the disabled person's disability and their employer's treatment of him. The reason could relate to disability even if the employer does not know of the disability. This type of discrimination is capable of justification but only if the reason for the treatment is both material to the circumstances of the particular case and substantial.

Burden of Proof

.12 The burden of proof provisions apply to these proceedings and the cases of Igen –v- Wong [2005] AER 300 and Madarassay outline the way the burden of proof in discrimination cases should work.

.13 In relation to the duty to make reasonable adjustments, it is for the claimant to prove facts from which it could be inferred, in the absence of an adequate explanation, that a duty to make reasonable adjustments arose in his circumstances and that it was breached by his employer. If the employee does this, his claim will succeed unless the employer can show that it did not fail to comply with its duty or, in this case, if the employer can show justification for any such failure.

.14 In relation to disability-related discrimination the employee must prove facts from which it could be inferred, in the absence of an adequate explanation that, for a reason relating to his disability, he has been treated less favourably than a person to whom that reason does not apply, has been or would be treated. If the employee does this the burden of proof shifts and it is for the employer to show that the employee has not received less favourable treatment for a disability-related reason. Even if the employer cannot show this, however, the employee's claim will not succeed if the employer can show that the treatment was justified.

6 Conclusions

.1 The tribunal found Mr Lyle to be an unconvincing witness in several respects and in particular found him to be vague when giving evidence on key matters and he was not able to support his own assertions. For example, the sample of documents on a deal which was produced backed up the claimant's case rather than that of the respondent. Mr Lyle drafted statements for the witnesses so that they were practically duplicates of each other and the tribunal finds that this was done by Mr Lyle in an effort to control their evidence although, in the event, their oral evidence failed to support the respondent's case in several key respects.

2.1 In contrast, the claimant came across as an honest person who was not hiding anything regarding the Q point system. He was clear and consistent in his evidence which accorded with the documentary evidence; with Ms Hamilton's evidence and, indeed, with several key parts of the evidence given by the respondent's witnesses. He was also clearly very badly affected by the treatment he had had at the hands of the respondent. The claimant's correspondence after he went off sick, was very politely worded and he apologised on several occasions for not being able to deal with the disciplinary process. There was clear evidence of his willingness to participate though he made it clear that he needed information and was asking for a proper investigation to take place. In these circumstances it was even more galling for him to be accused of "conveniently" being off sick in order to avoid the allegations against him.

2.2 The tribunal did not have regard to the evidence of Mr Woods and Reverend Cotter about the claimant's character. The tribunal has absolutely no doubts as to their honesty and honour but found this evidence to be irrelevant to the issues before it. The tribunal did not accept the claimant's counsel's contention that the respondent's treatment of Mr Woods was the same as that of the claimant and that it tended to show that the claimant was unfairly treated. Both situations were wholly different, in the tribunal's view and the evidence in this regard was, therefore, expressly excluded from the tribunal's deliberations.

Unfair Dismissal

.3 Mr Lyle moved too quickly to speak to the claimant on the 30 August 2002 without checking when the Q points scheme started and with whom it had been agreed. He used the anonymous letter and an inadequate discussion with Mr Slaine as evidence with no proper investigation. At the meeting the claimant honestly said that he had received Q points and believed at that time that it was known to his employer that the system was in operation. If that meeting was an investigatory meeting the claimant should have been told it was and more information should have been given to him. The claimant was not covering anything up. There was nothing which led the claimant to believe that his receipt of Q points was a problem. The claimant came out of that meeting not knowing that he had anything to answer for.

.4 One day's notice of a disciplinary meeting was not long enough. It was not reasonable notice especially as the first meeting was not a proper investigation and it therefore was a bolt from the blue for the claimant to be suspended and asked to attend the disciplinary meeting. As the claimant was not charged with gross misconduct and there was no urgent reason to suspend him, the suspension was not in accordance with the claimant's contract and it was not reasonable to suspend the claimant as the first hearing was not a proper investigatory meeting.

.5 Mr Lyle should have checked the paperwork on some deals, as he did with one deal for the purposes of the tribunal hearing. The one sample deal that was produced at the tribunal hearing confirmed the claimant's evidence that he would go to Blackhorse if the preferred companies rejected the customer for some reason. The figures produced by Mr Lyle following a study of the logs did not point to fraud or irregularities and he should have looked at the paperwork for some actual deals before jumping to conclusions.

.6 It was unreasonable and oppressive for the respondent to maintain that the claimant was off work purely to avoid the disciplinary process. The tribunal finds that it was an unwarranted increasing of the pressure on the claimant for the respondent to indicate deep suspicion as to the reasons for his absence even though the GP had produced sick lines and a report.

.7 Mr Lyle appeared in the letter of the 28 April 2003 to have made his mind up and put the burden on the claimant to disprove fraud. This did not indicate to the tribunal an open disciplinary hearing in progress. There was no reason for the urgency and the tribunal finds this an attacking letter particularly when no documents had been provided to the claimant despite his requests.

.8 The respondent could easily have checked with Blackhorse if the Q points system operated during the time that Dencourt ran the business and they did not do so.

.9 The claimant resigned because of the correspondence from the respondent ending on 9 May 2003 confirming that his guilt was pre-judged. No evidence was put to him and he was asked to comment on information which had not been sent. The last straw was going on with the disciplinary process despite no evidence having been sent to the claimant for written comments. The respondent could have sent a synopsis of extracts from the logs at an earlier stage; no minutes were sent to the claimant to enable him to prepare; the investigation was not full enough, the respondent could have suggested a neutral venue for the disciplinary hearing. The respondent pre-judged and confirmed their belief in the claimant's guilt in correspondence. They categorised the allegations as fraud and put the onus on the claimant to disprove fraud. The claimant had no alternative but to resign as he was not capable of going into the workplace in these circumstances. This was not a proper disciplinary hearing, in the tribunal's view, as the claimant had already been told that he had to prove that he was innocent of fraud.

.10 Against the background of inadequate investigation, inadequate information having being given to the claimant, (just the anonymous letter and his contractual terms and conditions), and given that the statistics upon which Mr Lyle was relying were only given to the claimant after the disciplinary meeting when the respondent could easily have given the statistics to the claimant earlier when he might have been in a fit state to deal with them in writing, it was unreasonable for the respondent to push ahead with the disciplinary process.

.11 In summary the tribunal finds that the claimant was constructively dismissed. The breach of contract consisted firstly, of a breach of the respondent's own procedures in the disciplinary process and secondly, breach of the contractual obligation of mutual trust and confidence in the way the respondent dealt with the claimant during the process. The claimant's resignation was due to the last straw in a serious of incidents namely the contents of the letter of the 9 May 2003 notifying him of the outcome of the disciplinary hearing which took place in his absence and there was no delay in his resignation.

.12 The tribunal finds no evidence of contributory fault on the part of the claimant despite the respondent's counsel's invitation to find 70%-100% contributory fault by the claimant. No grounds were pointed to by counsel which could have led to dismissal as Mr Lyle confirmed in evidence simply that non-disclosure of points "could have resulted in discipline" and, as the tribunal has found, there was no evidence to warrant an allegation of fraud. The tribunal does not accept counsel's contention that there was a 90% chance of the claimant being dismissed.

.13 As the tribunal has found that the claimant was entitled to treat himself as dismissed, the effective date of termination of the contract ("the EDT") is the date of resignation of 15 May 2003.

Disability Discrimination

.14 Failure to make reasonable adjustments

The questions to be determined and the tribunal's conclusions in respect of each question are as follows:

.15 Were arrangements in place which placed the claimant at a disadvantage compared to those who were not disabled after the beginning of September 2002 which was the date upon which the claimant was determined to be disabled?

The arrangements comprised the way the disciplinary process was conducted after the claimant went off ill; the characterisation of the offences as fraud; the lack of investigation throughout the period before the disciplinary hearing; the lack of information made available to the claimant so that he was unable to answer the allegations; the sending of letters whose contents made it clear that the respondents presumed the claimant guilty and the letters whose contents showed that this presumption became stronger the longer the claimant was off ill and that that presumption was related to the fact that the claimant was off and "avoiding" the issue.

It was clear to the tribunal that someone who was not disabled would not have been treated in this way as the fact of the claimant's absence due to his disability strengthened the respondent's belief in his guilt.

.16 Was the disadvantage suffered by the claimant a substantial disadvantage?

As the illness suffered by the claimant was stress and anxiety, this meant that the deficiencies in the process identified above, had a bigger impact on him. The tone and content of the letters, the characterisation of the offences and the clear pre-judgement of the issues had a direct and substantial effect on him which rendered him unable to deal with the allegations. The tribunal therefore finds that a substantial disadvantage was suffered by the claimant due to the deficiencies in the disciplinary process.

.17 Knowledge is relevant to the issue of reasonable adjustments. It was well known to Mr Lyle that the claimant had previously been off sick with stress; he was in receipt of a doctor's line indicating anxiety and stress and he had the doctor's letter which showed clear evidence of a number of issues leading to the claimant's problems. It was, therefore, wholly unreasonable for Mr Lyle to continue to characterise the claimant as "avoiding the issues" and remaining off work simply to avoid dealing with the disciplinary process because he did not want to face the allegations. The respondent's counsel, at hearing, tried to use the claimant's previous illness against him in the case in some way. On the contrary, the tribunal finds that it should have put the respondent on notice at the time that the claimant was suffering from a condition which might amount to a disability and that it therefore was under a positive duty to make reasonable adjustments in order to deal with the substantial disadvantage from which he suffered.

.18 The tribunal therefore finds that the duties to make reasonable adjustments did arise in this case.

.19 Was there a failure to make reasonable adjustments?

The respondent's representative indicated that the respondent delayed the disciplinary process and was then entitled to move the disciplinary process on despite the inability of the claimant to attend. The claimant resigned approximately eight months after the initial meeting about the matters at issue. The tribunal accepts that there could be circumstances in which a respondent would be justified in seeking to push on with disciplinary proceedings after such a period. The tribunal's view is, however, that in this case, it was not reasonable to push ahead in the way the respondent did and that various modifications of the disciplinary process could have been made in the following respects. The respondent could have explored more fully how to proceed with the claimant but the tone and content of their letters of the 28 April 2003, 9 May 2003 and the minutes of the 6 May 2003 compounded the claimant's problems. It was not reasonable for the respondent to jump in the way that it did when the claimant was, according to his GP, reaching a point when he might be in sight of being able to attend work. Rather, it should have asked the GP for an update on whether the claimant was fit to attend the disciplinary hearing or it could have asked the claimant for suggestions as to how they could get the process moving along. It could also have sent information to the claimant for his written comments. It did ask for comments on the allegations in writing but had not given him the necessary information in order to enable him to do so. It could have asked the GP how much longer it would have to wait in view of the medical condition. It could have asked the claimant how the respondent could help him participate in the process for example by suggesting a neutral venue to which he could be accompanied or could even have suggested meeting at his home. It could also have proceeded in the claimant's absence to check when Q points had started and who else received them and could have checked the documents more thoroughly.

.20 The tribunal therefore finds that there is sufficient evidence before it whereby it could conclude that there was a failure to make reasonable adjustments. The burden of disproving such a failure or of proving that any such failure was justified now shifts to the respondent.

.21 Whilst the disciplinary process took eight months due to the absence of the claimant, the tribunal finds that this was not enough of an adjustment in the circumstances. The tribunal heard no other evidence from the respondent on adjustments. The adjustments that could have been considered, in the tribunal's view, are outlined at 6.20 above.

.22 The tribunal therefore finds sufficient facts to establish that the duty to make reasonable adjustments existed and that there was a failure to make such adjustments and finds no evidence that discharges the burden on the respondent to disprove that such a failure occurred.

.23 The tribunal now turns to whether or not the respondent could justify the failure to make reasonable adjustments. The respondent sought to explain their reason for pushing the disciplinary process ahead on the grounds of urgency and on the grounds of the seriousness of the allegation. The tribunal found no evidence as to the matter being urgent and further finds that the seriousness of the allegation put an even greater burden on the respondent to conduct a proper investigation and to explore more fully the options for enabling the claimant to answer the allegation by providing information or exploring ways in which he could attend the disciplinary hearing in the future. In contrast the respondent piled on more pressure by making it clear that the claimant had to rebut the respondent's presumption of fraud. The tribunal therefore does not find a material and substantial reason to justify the failure to make reasonable adjustments.

Disability-related Discrimination

.24 The tribunal finds that the respondent was deficient in its treatment of the claimant by: going on with the disciplinary process in the way that it did; not conducting an investigation by, for example, checking the claimant's initial response on the fact that the Q points system was in operation in his time in Dencourt; the way it worded its letters increasing the pressure on the claimant as it characterised the allegation as fraud once the claimant went off sick when it did not characterise it as fraud at the start; the claimant's continued absence strengthening Mr Lyle's belief in the fraud; ignoring the claimant's request for documentation; the accusation that the claimant was seeking to avoid answering the allegations.

.25 All of these failures by the respondent meant that the claimant was unable to deal with the disciplinary matter and this clearly constituted a detriment.

.26 The reason for such treatment of the claimant related to the claimant's absence because of his disability. The particular disability from which the claimant suffered meant that the effect was all the greater on him of the respondent's approach in their correspondence together with the unwarranted characterisation of the allegations as fraud, the attacking nature of the correspondence and the clear pre-judgement of the issues.

.27 The comparator is someone to whom the reason for the less favourable treatment did not apply namely someone not absent with a disability. As there was no evidence of an actual comparator the tribunal looked at how a hypothetical comparator would have been treated. The tribunal finds that such a comparator (ie someone not absent) would not have been dealt with in the same way as the claimant as it was clear that a major reason for the way the respondent conducted the disciplinary process during the claimant's absence was precisely because the claimant was off sick.

.28 Given these findings the burden of proof shifts to the respondent to disprove discrimination or prove justification.

.29 There was no evidence advanced by the respondent that a real or hypothetical comparator would have been treated in the same way as the claimant.

.30 The justification raised by the respondent related to their assertion that, having let the disciplinary process run for eight months following the absence of the claimant, there was then urgency in completing the process due to the seriousness of the allegations. The tribunal does not accept this as a substantial reason sufficient to establish justification. Contrary to the respondent's assertion that during this period the claimant was left to his own devices, the respondent increased the pressure on him despite the fact that there was no imperative on the respondent to complete the process.

.31 The tribunal therefore finds the respondent guilty of discrimination for a reason related to the claimant's disability and does not find that discrimination to have been justified.

7 Quantum of Damages

.1 The parties produced an agreed schedule of loss which contained figures which were agreed, subject to liability, as follows:

(a) Basic Award:

.5 (multiplier) by 6 (full years in employment) X £260 per week = £2,340.00.

(b) Compensatory Award:

loss of statutory industrial rights £300.

.2 The claimant had a heart attack on the 27 September 2005 which was approximately ten months before his retirement date of the 12 July 2006. It was agreed that the date of retirement was the "cut-off date" for any award of compensation for loss of earnings. Counsel for the respondent invited the tribunal not to award a figure for loss of earnings after the date that the claimant left because he was unfit for work and referred the tribunal to the case of Devine. In that case the employee's dismissal caused anxiety and depression and consequently incapacity for work. The EAT stated that it is for the tribunal to decide how far the illness was attributable to the employer's actions and confirmed that the tribunal has the power to award compensation for loss of earnings even though the claimant at the relevant time was incapable of working if that incapacity was due, wholly or in part, to the dismissal.

.3 The tribunal has no hesitation in finding that the claimant's incapacity for work was caused by the dismissal because he was forced to resign with the cloud of suspected dishonesty over him and he was unable to clear his name due to the respondent's persistent failure to provide him with access to documents following dismissal. The respondent's counsel sought to attribute at least part of the incapacity to domestic problems which the claimant had suffered. The tribunal finds that the previous domestic crises did not have a major impact on the claimant's illness following his dismissal as the claimant had been clearly coping with those crises in that he was able to continue working during the relevant periods in 2001 and 2002.

.4 The tribunal has looked carefully at the medical evidence in this case and notes the date of the claimant's heart attack and the serious effect this had on the claimant's abilities. The tribunal finds that the claimant was unlikely to be able to work after his heart attack even aside from the stress and anxiety related to the dismissal and therefore awards a sum for loss of earnings between the EDT of the 15 May 2003 and the 27 September 2005 being the date of his heart attack.

.5 The tribunal therefore, awards a sum for loss of earnings from the 16 May 2003 to 27 September 2005 being a period of 123 weeks. The benefits received during that period are deducted in order to show the net loss. The calculation for compensatory award is as follows using the agreed figures for net pay and benefits:

Compensatory Award:

123 weeks @ £443.75 net pay £54,581.25

Less Incapacity Benefit received

between the 22 March 2003 and

the 27 September 2005 - £1,723.83

____________

Net Loss of Income: £52,857.42

Basic Award: + £2,340.00

Statutory Industrial Rights award: + £300.00

____________

Total £55,497.42

Statutory cap in force at time of EDT = £53,500.00

Total compensation for unfair dismissal = £53,500.00

7.6 Compensation for Disability Discrimination

The claimant's claim is purely for injury to feelings under this heading as the claimant's counsel stated that there was no separate claim for personal injuries arising from the discrimination although there was a medical report which was presented in relation to the injury to feelings claim. The claimant's counsel contended that this case lay in the highest Vento band (£15,000 - £25,000) whereas the respondent's counsel contended that it lay in the lowest Vento band (£500 - £5,000).

.7 The tribunal considered carefully the demeanour of the claimant and it was clear that he continued to suffer serious injury to feelings due to the respondent's treatment of him. The tribunal has confined its assessment of the effect on him to the period following his initial absence from work which is the date upon which he was determined to be disabled.

.8 The tribunal finds that the respondent's treatment of him during the disciplinary process was humiliating and offensive, most notably in continuing with the allegation that he went off sick to avoid being disciplined and continuing with this allegation during the hearing and in the respondent's counsel's submissions,. The tribunal found it incredible that the respondent persisted with this attitude towards the claimant despite the medical report that had been produced during the initial absence and despite a tribunal's finding that the claimant was disabled at the relevant time. The respondent also failed to provide documentation until relatively close to the hearing. The respondent failed to pay the £414.81 which was owed to the claimant for pay for which was withheld from his last pay packet until the hearing had started, that is, some five years after the date on which the payment was withheld. The respondent also, in their letter accepting the claimant's resignation, stipulated that they had passed the matter to police and the tribunal finds this to have been a vindictive act which added to the claimant's injury to feelings. The allegations of fraud against the claimant were based on the flimsiest of evidence and effectively ruined the claimant's career and caused him deep distress as he has had an unwarranted allegation of dishonesty hanging over him for a very long time.

.9 The tribunal is aware that in assessing the injury to feelings aspect of the compensation it must seek to compensate the claimant rather than punish the respondent. The claimant was clearly a man of honesty and integrity with a long, unblemished, honourable career behind him and the allegations of fraud were both unwarranted and oppressive given the respondent's knowledge of his past history of illness. Both the claimant and his wife gave clear evidence of the deep, long-term distress suffered by him due to the respondent's actions.

.10 In these circumstances the tribunal finds that this case falls within the middle Vento band and awards the sum of £12,000 for injury to feelings.

.11 The tribunal wishes to record that it considered carefully whether aggravated damages would be suitable in this case particularly when the respondent did not pay the £414.81, which it did not appear to dispute was due and owing, for five years, and resisted numerous attempts for the claimant and his representative to obtain access to documents in order to prepare their case. The respondent also persisted in its allegation of fraud even during submissions despite its own witnesses' failure to support its case that the claimant had a nefarious arrangement to receive Q points without the respondent's knowledge. The tribunal is aware, however, that awards of aggravated damages are exceptional and it has therefore, narrowly decided not to award aggravated damages in this case.

.12 Interest is payable on the whole of the injury to feelings award from the date of the act of discrimination to the calculation date. As the acts occurred in this case over a period of time the tribunal has calculated compensation from the date of the claimant's resignation. The period for which interest is payable on the injury to feelings award is therefore 15 May 2003 to 25 January 2008 being the calculation date. The rate of interest applicable during this period is 8%. The calculation is as follows:

Injury to feelings award: £12,000

Interest @ 8% multiplied by

4 years and 37 weeks: + £4,523

________

Total compensation for discrimination: £16,523

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

Chairman:

Date and place of hearing: 1-3 October, 23 November 2007 and 11 January 2008, Belfast.

Date decision recorded in register and issued to parties: