Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1043/08

CLAIMANT: James Hann

RESPONDENT: Royal Mail Group Ltd

DECISION

The unanimous decision of the tribunal is that the claimant's claim that he was discriminated against under the Disability Discrimination Act 1995 by reason of the respondent's failure to make a reasonable adjustment is dismissed.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Mr J Kinnear

Mrs K Cooley

Appearances:

The claimant was represented by Mr B Mulqueen, Barrister-at-Law, instructed by O'Hare, Solicitors.

The respondent was represented by Mr D Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

Reasons

1. At the outset of the hearing, it was agreed with the consent of the parties that Mr Tom O'Kane, who had been named as a second respondent, should be dismissed from the proceedings.

2.

(i) At a Case Management Discussion before the President of the Tribunals on 8 December 2008, it was indicated that the claimant's case was that the respondent had unlawfully discriminated against him on the ground of disability by failing to make reasonable adjustments.

The respondent for its part accepted that the claimant is a disabled person within the meaning of the Disability Discrimination Act 1995, and also accepted that the requirements of the claimant's original position put him at a substantial disadvantage because of his disability.

(ii) At the hearing before the tribunal, Mr Mulqueen BL, his counsel, indicated that of the issues formulated at the Case Management Discussion on 8 December 2008, the only one on which the claimant was proceeding was whether the respondent failed in its duty to make a reasonable adjustment for the claimant by refusal to pay travel and subsistence payments to the claimant in connection with his transfer from Antrim to the Northern Ireland Mail Centre (NIMC) at Mallusk in March 2008.

2. The following facts were agreed by the parties:-

(i) The claimant, Mr Hann, was born on 2 March 1965 and is 44 years old. He commenced his employment with Royal Mail on 5 June 1989. He was employed as an operational postal grade (postman).

(ii) The claimant was employed originally as a postman carrying out duties in Antrim sorting office. His address is 42 Springfarm Road, Antrim.

(iii) The claimant suffered a cardiac arrest on 15 August 2007. Following that cardiac arrest he was ill and remained on sick leave until 24 March 2008.

(iv) During the period of time that the claimant was ill he underwent medical assessment by the respondent's occupational advisers. Dr Andrew Colvin carried out an assessment of the claimant on 31 October 2007 and later re-examined the claimant on 21 January 2008. In his report of 21 January 2008, Dr Colvin agreed with the claimant that as a result of the effects of his heart condition he was unable to work alone as a delivery postman and furthermore was unable to discharge the walking delivery duty as a delivery postman for the foreseeable future. In addition, Dr Colvin and the claimant agreed that he would be unable to undertake professional driving duties on behalf of the respondent for a period of at least 12 months.

(v) The claimant was unable to continue as a delivery postman working from the Antrim sorting office in light of his condition. It was agreed that he would require an indoor duty which did not involve him working alone. On 27 February 2008 a post was identified at the Northern Ireland Mail Centre in Mallusk known as the Twilight shift. After consideration of the practicalities of this post, on 11 March 2008 the claimant agreed that he would be in a position to discharge the obligations of this particular role.

(vi) The claimant returned from sick leave and commenced working the Twilight shift at the Northern Ireland Mail Centre at Mallusk from 24 March 2008.

(vii) As a result of the claimant's transfer from working in the Antrim sorting office to the Northern Ireland Mail Centre in Mallusk he now drives an additional 96 miles per week.

(viii) The claimant suffers from a disability within the meaning of the Disability Discrimination Act 1995. The reason the claimant was unable to continue working as a delivery postman in the Antrim sorting office was as a result of his disability and specifically his inability to work alone or to carry out the walking duties of a delivery postman. The reason he was transferred to work in the Northern Ireland Mail Centre was because the post in the Twilight shift did not involve him working alone nor did it pose a problem in light of his disability.

(ix) There were no other posts which were available in the Antrim delivery office in light of the claimant's disability. The only alternative post which was available was the Twilight shift within the Northern Ireland Mail Centre and as a result of taking up this particular post the claimant has incurred the additional agreed travel expenses being the difference in travelling from his home to Antrim delivery office and from his home to the Northern Ireland Mail Centre.

(x) The respondent operates an excess travel expenses policy. This policy provides a payment for the excess travel expenses incurred by an employee in travelling to a new office if the employee is compulsorily permanently transferred to a new work location. (The period for which such expenses are payable is three years.)

(xi) At the hearing it was further agreed by the parties that in the event of a determination on liability, the compensation payable to the claimant would be £2,186.

3. In addition to the agreed facts, reference was also made at the hearing to a document relating to a rehabilitation programme for non-disabled workers. If the employee is placed on a rehabilitation programme in a different office, he will be reimbursed for any excess travel costs in line with business travel policy.
4. The claimant's case is that the reasonable adjustment required in this case is not only to re-locate the claimant at NIMC, but also to pay the travel expenses incurred. The respondent contends that only the former (re-location) was required.

(i) The duty to make reasonable adjustments arises by virtue of the Disability Discrimination Act 1995, as amended by the Disability Discrimination Act (Amendment) Regulations (Northern Ireland) 2004.

(ii) In O'Hanlon v Commissioners for HM Revenue & Customs [2007] IRLR 404, at paragraph 23 of the decision, Hooper LJ states:-

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

(iii) Section 4A of the 1995 Act puts a duty on the employer to make reasonable adjustments where a provision, criterion or practice (by Section 18D this includes 'arrangements') 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. An employer has to take such steps as it is reasonable for it to have to take in all the circumstances to prevent that disadvantage – in other words the employer has to make a 'reasonable adjustment'. Where the duty arises the employer cannot justify any failure on his part to make a reasonable adjustment. (See : Disability Code of Practice – Employment and Occupation Paragraph 5.3.)

(iv) Section 18B(2) of the 1995 Act sets out a number of steps which an employer might have to take to comply with the duty to make reasonable adjustments. Some of these relate to modification of premises, which are not relevant here, but the potential breach of the scope of this provision is apparent from the decision in Archibald v Fife Council [2004] ICR 954 where the reference in Section 18B(2)(c) to transferring someone to fill an existing vacancy was construed to mean appointing someone to such a vacancy in preference to a better qualified person.

Whether something is a reasonable adjustment is for the tribunal to decide, objectively, on the facts of the particular case. (See : Smith v Churchill Stairlifts PLC [2006] IRLR 41 CA.)

(v) Section 18B(1) provides that in determining whether it is reasonable for a person to have to take a particular step to comply with the duty to make reasonable adjustments regard shall be had to various factors, in particular effectiveness, and cost.

(vi) Regard must also be had to the guidance given to tribunals in the case of Environment Agency v Rowan [2008] IRLR 20 (EAT) where His Honour Judge Serota stated, at Paragraph 27, that a tribunal considering a claim that an employer has failed to make a reasonable adjustment must identify:-

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

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

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

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

He continued:-

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

(vii) In this case the provision, criterion or practice with which we are concerned is the employer's policy for dealing with workers who are at risk of losing their jobs by being retired through ill-health.

6. The burden of proof in cases concerning the duty to make reasonable adjustments was considered in Project Management Institute v Latif [2007] IRLR 579. In Harvey on Industrial Relations and Employment Law, the position is summarised as follows:-

" ... [T]he EAT held that a claimant must provide both that the duty has arisen, and also that it has been breached, before the burden will shift, and require the respondent to prove it complied with the duty. There is no requirement for claimants to suggest any specific reasonable adjustments at the time of the alleged failure to comply with the duty; in fact it is permissible ... for claimants to propose reasonable adjustments on which they wished to rely at any time up to and including the ... hearing itself."

7. In this case, as indicated at Paragraph 2(ii) above, the respondent accepts that the claimant had been placed at a substantial disadvantage because of his disability. His illness meant that he could not longer carry out duties, eg walking, lifting, which other postmen could perform.

The respondent identified an indoor post at Mallusk which he was capable of fulfilling, with the result that the disadvantage ceased and the claimant was no longer liable to lose his job through ill-health retirement.

In our view, the identification of the position at Mallusk and the claimant's placement there constituted a reasonable adjustment which stopped him being placed at a substantial disadvantage.

We do not consider that a reasonable adjustment goes beyond this, to require the payment of travelling expenses. The travelling expenses seem to us to have been a consequence of the reasonable adjustment. Making a reasonable adjustment does not lead to the situation where everything remains the same for a claimant. In Taylor v Dumfries and Galloway CAS [2007] SLT 425 it was held that where the making of a reasonable adjustment would have resulted in an employee being able to undertake a particular job, the compensation payable in respect of breach of that duty should be based on the likely earnings of that job, and not in the job from which the claimant had been dismissed.

We therefore dismiss the claimant's claim.

Chairman:

Date and place of hearing: 22 April 2009, Belfast

Date decision recorded in register and issued to parties: