Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/00213.html
Cite as: [2009] NIIT 213_5IT, [2009] NIIT 213_05IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 213/05

CLAIMANT: Rory Brannigan

RESPONDENT: Blinds Direct Ltd

DECISION

The unanimous decision of the tribunal is that:-

The respondent failed to make reasonable adjustments.

The claimant was harassed for a reason which related to his disability.

The claimant was not discriminated against for a reason which related to his disability.

The claimant was constructively dismissed.

The tribunal awards the claimant compensation of £14,278 plus interest of £4,423.

Constitution of Tribunal:

Vice President: Mrs Smyth

Members: Mr Killen

Mr Lowden

Appearances:

The claimant was represented by Mr N Richards, Barrister-at-Law, instructed by Donnelly & Kinder, Solicitors.

The respondent was represented by Mr T Sheridan, of Peninsula Business Services Limited.

Reasons

The issues for the tribunal are:-

(1) Whether the respondent failed to make reasonable adjustments.

(2) Whether the claimant was harassed for a reason which related to his disability.

(3) Whether the claimant was discriminated against for a reason relating to his disability.

(4) Whether the claimant was constructively dismissed.

The tribunal heard evidence from the claimant, and from Mr Hogg the respondent’s Managing Director, Mrs McGreevy, Mr Mageean and Mrs Ogle on behalf of the respondent. All of the respondent’s witness statements contained a number of paragraphs in identical terms. Mr Hogg stated that the first two paragraphs of his statement had been agreed with his legal adviser. Mr Mageean also stated that the identical paragraphs had come about through agreement with his legal adviser. Mrs McGreevy could offer no explanation for the identical paragraphs and Mrs Ogle insisted that the paragraphs contained her own words. The tribunal wishes to express its concern at the manner in which these witness statements were prepared, and in particular its concern that the statements did not accurately reflect the evidence of each witness.

The claimant is a disabled person for the purposes of the Disability Discrimination Act 1995 as amended. At a pre-hearing review to determine whether the claimant has a disability, it was established that he suffers from rotator cuff impingement syndrome possibly as a result of degeneration in the right acromioclavicular joint or as a result of a partial injury to the right sided rotator cuff tendon (or a combination of both). An MRI scan revealed degenerative arthritis in the acromioclavicular joint of the right shoulder with subsequent impingement upon the supraspinatus muscle tendon and a possible tear of the supraspinatus muscle tendon. In short, the claimant suffers from a substantial long term neck and shoulder impairment which adversely affects his ability to lift items above shoulder height.

The claimant commenced employment with the respondent in 1999 as a Warehouse Supervisor. He had previously been employed as a Fitter for a period in 1995 but left due to ill-health which was unrelated to his disability. The tribunal accepts that when the claimant commenced employment as a Supervisor he made it clear that he did not wish to work as a Fitter because he found driving to customers’ homes stressful and the work affected symptoms of his previous ill-health. The respondent employed two to three fitters specifically for that purpose but salesmen and indeed also Mr Hogg fitted blinds when necessary.

The claimant was happy in his role as Supervisor for almost three years. However, after that time he was frequently asked to fit blinds which he did not wish to do. In or about early 2003, the claimant developed pain in his right shoulder and neck which were symptoms of his disability. He had difficulty keeping his arm above shoulder height when he was fitting blinds, and the pain became more intensive as time went on. The claimant’s ability to fit blinds was severely affected.

The claimant attended his GP on 15 April 2003 who diagnosed him as suffering from adhesive capsulitis of the right shoulder, and prescribed medication. He attended an Osteopath, Mr Ivan Bell, on the following dates in 2003:-

4 June 2003

11 June 2003

18 June 2003

2 July 2003

12 September 2003

19 September 2003

24 September 2003

Although the claimant’s line manager, Mrs McGreevy, denied having any knowledge of the claimant’s disability she conceded that she was aware that the claimant was attending an Osteopath because of pain in his right shoulder and neck from mid-2003. Mrs McGreevy also conceded that she was aware that the claimant’s condition adversely affected his ability to fit blinds.

The tribunal does not accept the evidence of the Managing Director Mr Hogg that he had no knowledge of the extent of the claimant’s neck and shoulder problems, or the difficulties which fitting blinds posed for him until he received a note from the claimant’s GP on 19 March 2004. The respondent company is a small firm and the tribunal is entirely satisfied on a balance of probabilities that Mr Hogg would have been fully aware that the reason the claimant frequently required time off during working hours was to attend an Osteopath for his neck and shoulder problems. The tribunal also accepts the claimant’s evidence that Mr Hogg observed the claimant’s discomfort when he was fitting blinds. The tribunal accepts that on 4 June 2003, the claimant provided Mr Hogg with a note from the Osteopath, Mr Bell, confirming that he was attending for treatment for pain in the area of the right shoulder and right arm. Mr Hogg denied ever seeing the note although Mr Mageean who was the most senior employee accepted that he had seen it. The tribunal considers it highly improbable that the claimant would not have shown the note to Mr Hogg since it supported his case that he was unable to fit blinds and the reason he had obtained it was because he did not believe that Mr Hogg accepted his impairment was genuine. The tribunal accepts the claimant’s evidence that Mr Hogg was dismissive of the note from the Osteopath and said that the claimant would have to attend a doctor. No arrangements were made for the claimant to attend any medical adviser.

The tribunal is satisfied that Mr Hogg refused to accept that the claimant’s problems with his neck and shoulder were genuine, and dismissed the claimant’s assertions that he was unable to fit blinds. Frequently, the claimant would return from an appointment with the Osteopath and immediately he would be sent out on fitting duties. The claimant alleged that Mr Hogg complained “if its not you its your wife and children”. This was a reference to the fact that one of the claimant’s sons had had a hip operation and was in a cast and a wheelchair for two years, another of his sons had an anaphylactic shock reaction and nearly died and his wife had three operations followed by a hysterectomy. Mr Hogg denied ever making such a remark. However, counsel for the claimant referred Mr Hogg to a document which he had attached to his response to the claim in which he stated “Rory was always complaining about some ailment, sore feet, sore sides, flu’s, colds etc, if it wasn’t him it was his family …”. The tribunal therefore accepts the claimant’s evidence that the remark was made.

In February 2004 the claimant was referred to Maura Fisher a Physiotherapist. He was told that more physiotherapy would be required. On the second occasion, on 24 February 2004, Ms Fisher advised the claimant to stop fitting blinds. On 26 February 2004, the claimant informed Mr Hogg that he was unable to continue fitting blinds. Mr Hogg’s response was that the claimant “wasn’t much good to him” and requested that he attend the respondent’s doctor. The claimant indicated he was happy to attend a doctor. However, no arrangements were made to have the claimant examined.

On 8 March 2004, the claimant was tasked to repair venetian blinds. This job required the claimant to raise his right arm above shoulder height and caused him considerable discomfort.

On 19 March 2004, the claimant obtained a letter from his GP in the following terms:-

“To whom it may concern

Rory is currently attending physiotherapy for right shoulder and neck pain. This is felt to be a repetitive stress injury made worse by his job. I would be grateful if his work could be modified to help reduce his pain … .”

The tribunal accepts the claimant’s evidence that Mr Hogg’s response was that the claimant could have obtained the doctor’s letter heading and written the letter himself.

13. Thereafter, the relationship between the claimant and Mr Hogg deteriorated to the point where they barely spoke to each other. Although the claimant no longer fitted blinds, he was required to do other duties which required him to lift his arm above shoulder height. For example, in or about March 2004, the claimant was required to lift heavy rolls of fabric up on racks which he managed to do using his left arm.

14. On 9 September 2004, the claimant was informed that a meeting was to take place with Mr Hogg the following evening. The claimant was not told the purpose of the meeting but was informed that he was entitled to have a witness present. The claimant asked his line manager, Mrs McGreevy, to attend. The following morning, the claimant was told the meeting related to his health and other issues.

15. At the meeting, Mr Hogg asked the claimant a series of questions regarding his capability to carry out his duties. The claimant asked if he would receive a copy of the minutes of the meeting, the respondent stated that he would not. The tribunal does not accept Mr Hogg’s evidence that subsequently the claimant was given a copy of the minutes.

16. The tribunal accepts that the claimant felt very stressed during this meeting. Mr Hogg raised issues regarding the claimant’s responsibility for ordering stock from suppliers and matters relating to other members of staff. Mr Hogg alleged that the claimant’s communication with staff was poor and that his conduct amounted to gross misconduct. He queried the claimant’s problems with his neck and shoulder and questioned the claimant’s ability to carry out farm work in his free time.

17. Mr Hogg stated that the claimant would have to attend a doctor to verify his claims about his shoulder injury. The claimant stated that he could not understand why it was taking so long to have a medical appointment arranged. Mr Hogg then stated “I hope you are prepared to take the consequences”. At this point the claimant asked for Mrs McGreevy to attend the meeting. Mr Hogg denied in Mrs McGreevy’s presence having told the claimant “I hope you are prepared to take the consequences”.

18. On Thursday 16 September 2004, Mr Hogg again asked to see the claimant. The claimant asked Mrs McGreevy to attend. At the meeting, Mr Hogg stated that he had clarified a few points with his solicitor, but he gave no explanation to the claimant about the clarification he had received. Mr Hogg referred to the previous meeting and the issue discussed relating to another member of staff. Mr Hogg told the claimant that his behaviour amounted to gross misconduct but that on this occasion he would take no action. He stated that he would not hesitate to take action in the future. Mr Hogg again queried the genuineness of the claimant’s shoulder and neck problem, and criticised the claimant’s attitude to work and other members of staff.

19. Following the meeting, Mr Hogg wrote to the claimant on 24 September 2004 taking issue with some of the comments the claimant had made in the course of the meeting, and warning him that such conduct would be treated as gross misconduct.

20. On 10 October 2004, the claimant responded to Mr Hogg’s letter, pointing out that no fault had been found with his work until he was unable to fit blinds. The claimant also explained the context in which he had made the comments referred to in Mr Hogg’s letter.

21. On 1 November 2004, Mr Hogg replied to the claimant’s letter, refuting his assertions and insisting on the claimant’s retraction of statements contained in the letter of 10 October 2004 and informing the claimant if he did not retract the statements the letter would be treated as an act of gross misconduct leading to instant dismissal.

22. On 2 November 2004, the claimant wrote to the respondent and agreed to retract the letter of 10 October 2004, stating that he did not want to lose his job. However, he expressed his concern regarding the respondent’s attitude and confirmed he would continue to work in harmony with others but he physically could not fit blinds to the extent he had done in the past.

23. On 3 November 2004, Mr Hogg replied confirming that he was pleased the claimant had retracted his earlier letter, but confirming that “any further acts of insubordination or creating disharmony with others will be clarifid [sic] as gross misconduct and will lead to instant dismissal”.

24. On 20 November 2004, the claimant confirmed in writing his consent to his medical records being disclosed to a doctor nominated by the respondent. On 29 November 2004, the claimant was informed that a medical examination had been arranged with Dr Deeny on 14 December 2004.

25. On 13 December 2004, the claimant was informed that the medical examination was cancelled due to the ill-health of Dr Deeny , and re-arranged for 4 January 2005. The claimant went off on sick leave and did not return to work.

26. On 21 December 2004, the claimant resigned from his employment. His letter of resignation stated:-

“As a result of the way the company over the past number of weeks has treated me, I feel that my position within the company is no longer sustainable. The treatment that I have received from you has caused extreme stress and I have therefore concluded I have been constructively dismissed by Blinds Direct as a result of a fundamental breach in the duty of trust and confidence that should exist between Blinds Direct and an employee … .”

The law

27. The duty to make reasonable adjustments

(27.1) Section 4A(1) of the Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004 states that the duty to make a reasonable adjustment arises where a provision, criterion or a practice applied by or on behalf of the employer, or any physical feature of premises occupied by the employer, places a disabled person at a substantial disadvantage compared with people who are not disabled or who do not have that particular disability. In such circumstances, 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.

(27.2) Section 4A(3) states that no duty is imposed on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know “ … that that person has a disability and is likely to be affected in the way mentioned in sub-section (1)”. In Dolan v Chief Constable of Avon & Somerset [2008] the EAT confirmed that knowledge may be actual or constructive.

(27.3) Paragraph 5.12 of the Disability Code of Practice Employment and Occupation makes it clear that:-

“Although … less favourable treatment can occur even if the employer does not know that an employee is disabled, 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. The employer must however, do all it can reasonably be expected to do to find out whether this is the case.” [Emphasis added]

(27.4) In Environmental Agency v Rowan [2008] IRLR 20, the EAT provided guidance to tribunals in relation to the facts which must be identified in order to decide whether the respondent has failed to make a reasonable adjustment. The tribunal must identify:-

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

(b) the physical feature of premises occupied by the employer;

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

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

(27.5) In Project Management Institute v Latif [2007] IRLR 579, Elias J explained the Burden of Proof Regulations in the context of a claim for breach of the duty to make reasonable adjustments. If the claimant proves facts from which the tribunal could conclude that a duty to make reasonable adjustments has arisen, and a potentially reasonable adjustment has been identified, the burden of proof shifts to the employer to prove that the adjustment was not reasonable.

28. Disability-related discrimination

(28.1) Section 5 of the Disability Discrimination Act 1995 states that 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.

(28.2) In Mayor and Burgesses of the London Borough of Lewisham v Malcolmson [2008] UKHL 43, the House of Lords explained that disability-related discrimination occurs if a non-disabled person to whom the same reason for the treatment in question would apply is or would be accorded more favourable treatment. For the purposes of this case, the appropriate comparator is a person without the claimant’s disability who was also unable to fit blinds.

29. Harassment for a reason which relates to the claimant’s disability

(29.1) Section 3B of the Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004 states that “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.”

(29.2) Section 2B(2) states that conduct shall be regarded as having the effect referred to in Paragraph (a) or (b) of Sub-section (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect.

30. Constructive dismissal

In order to be able to claim constructive dismissal, four conditions must be met:-

There must be a breach of contract by the employer. This may be either an actual breach or an anticipated breach. Such breaches include conduct calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.

That breach must be sufficiently important to justify the employee resigning or else it must be the last in a series of incidents which justify his leaving.

He must leave in response to the breach and not for some other, unconnected reason.

He must not delay too long in terminating the contract in response to the employer’ breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.

The tribunal’s conclusions

Breach of the duty to make reasonable adjustments

The tribunal is satisfied that the respondent could reasonably be expected to have known that the claimant had a disability from in or about mid-2003 if it had made reasonable enquiries about the claimant’s medical condition. Our reasons are as follows:-

(1) Mrs McGreevy conceded that she knew the reason for the claimant’s frequent attendances at the Osteopath from June 2003 and the difficulties that his impairment posed for the fitting of blinds.

Mr Mageean conceded that he saw the note from the Osteopath dated 4 June 2003 confirming that the reason for the claimant’s attendance was treatment in the area of the right shoulder and right arm.

The tribunal is satisfied that Mr Hogg witnessed the claimant’s difficulties fitting blinds, and that he could not fail to have been aware of his attendance at the Osteopath during working hours, and the reason for those attendances.

Despite suggestions that the respondent would seek expert medical opinion, no arrangements whatever were made until late 2004.

The tribunal is also satisfied that the requirement to fit blinds placed the claimant, as a disabled person, at a substantial disadvantage compared with people who are not disabled or who do not have that particular disability because the task involved him lifting his arm above shoulder height. The duty to make reasonable adjustments therefore arose from mid-2003. The reasonable adjustment identified is the removal of the requirement to fit blinds.

The burden of proof therefore shifts to the respondent to prove that the adjustment was not reasonable. (Project Management Institute v Latif [2007] IRLR 579.) In this case, the respondent’s case is simply that it did not have knowledge of the disability until March 2004 when the claimant provided a GP report requesting that the claimant’s work be modified and that thereafter he did not fit blinds. It has not been suggested that removing the requirement to fit blinds was unreasonably costly, nor that it would be ineffective.

The tribunal is satisfied that since the claimant was employed as a warehouse supervisor – not a fitter – and since other employees were employed specifically for the task of fitting, it was a reasonable adjustment to remove any requirement to fit blinds. The claimant had no difficulty carrying out any of his responsibilities as supervisor, his only difficulty was lifting his right arm above shoulder height which he was required to do when fitting blinds. The respondent has therefore failed to discharge the burden of proof and the tribunal finds that the respondent was in breach of its duty to make reasonable adjustments from mid-2003.

Harassment for a reason which related to the claimant’s disability

The tribunal is satisfied that the respondent engaged in unwarranted conduct which had the purpose or effect of:-

(a) violating the claimant’s dignity; or

(b) creating an intimidatory, hostile, degrading, humiliating or offensive environment.

The conduct is as follows:-

(1) Refusing to accept that the disability was genuine and insisting that the claimant fit blinds in circumstances where the respondent knew or ought to have known that his disability caused him pain and suffering when doing so.

Making derogatory remarks regarding the claimant and his family as set out in Paragraph 9 above.

(3) Subjecting the claimant to unwarranted threats during meetings and in correspondence as set out in Paragraphs 15 – 23 above.

Disability-related discrimination

The tribunal is not satisfied that the respondent discriminated against the claimant for a reason which related to his disability. There is no evidence whatsoever that a non-disabled person who was unable to fit blinds would have been treated more favourably then the claimant in similar circumstances. This claim is therefore dismissed.

Constructive dismissal

The tribunal is satisfied that the conduct of the respondent breached the implied term of trust and confidence in the employment contract, and the claimant was therefore constructively dismissed. The reasons are as follows:-

Failing to make arrangements to have the claimant medically examined from mid-2003 until late 2004, and insisting that the claimant continue to fit blinds despite his assertion that he was unfit to do so.

Failing to make reasonable adjustments.

Making derogatory comments about the claimant and his family as set out in Paragraph 9 above.

Subjecting the claimant to unwarranted threats during meetings and in correspondence as set out in Paragraphs 15 – 23

The tribunal is satisfied that the claimant left his employment in response to the treatment he received and in particular in response to the respondent’s conduct in the weeks leading up to his resignation.

Remedy

The parties agreed the financial loss as follows:-

Basic award £1,400.00

Loss of statutory employment rights £ 250.00

Financial loss to date of hearing £1,248.00

Expenses reasonably incurred as result

of dismissal – skills development course £1,380.00

Total £4,278.00

(32.2) Injury to feelings for disability discrimination

The tribunal considers that this case falls within the middle band of the guidelines set out in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102. The tribunal takes into account the period of time over which the failure to make reasonable adjustments and harassment occurred. The tribunal also takes into account the claimant’s evidence that the respondent was dismissive of his disability, and in particular the comment made by Mr Hogg when the claimant gave him the letter from his GP in March 2004 – that the claimant could have written the letter himself. The tribunal accepts that the claimant was very embarrassed and distressed by the respondent’s behaviour and that it affected his confidence and his family life. Taking all of those matters into account the tribunal awards the claimant £10,000 for injury to feelings.

(32.3) The tribunal considers it appropriate to award interest on the award for injury to feelings.

The appropriate period for calculation is from 30 June 2003 (date from which discrimination occurred) – 9 January 2008 (date of calculation).

Interest calculated on £10,000 x 8% = £2.19 per day

5 years and 193 days £4,423

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

Vice President:

Date and place of hearing: 10 – 11 November 2008, Belfast

Date decision recorded in register and issued to parties:

11.