Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2009/1494_07IT.html
Cite as: [2009] NIIT 1494_7IT, [2009] NIIT 1494_07IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1494/07

CLAIMANT: Joseph John McIlwaine

RESPONDENTS: 1. Derek Patterson T/A The Plough, Hillsborough

2. Anton Campbell

DECISION

The decision of the tribunal is as follows:

The claimant’s claim of discriminatory dismissal is not well founded and is dismissed.
The claimant’s claim of unfair dismissal is not well founded and is dismissed.

Constitution of tribunal:

Chairman: Mr P Buggy

Members: Mr J Devlin

Mr D Walls

Appearances:

The claimant was represented by Ms J McIlwaine (his mother).

The respondent was represented by Mr T Sheridan of Peninsula Business Services Ltd

REASONS

Mr Derek Patterson is one of the owners of The Plough Inn in Hillsborough. The claimant was employed at The Plough from February 2002 until June 2007. The claimant was employed as a chef and was very good at his job.

In May 2007, the claimant was suspected of having stolen a wallet, at The Plough, belonging to a colleague of his. He was subsequently tried and acquitted in respect of that alleged theft. As Mr Sheridan recognised, he is now entitled to be treated by us, and by others, as a person who was innocent of that offence.

It is agreed between the parties that the claimant is a disabled person within the meaning of the Disability Discrimination Act 1995 (“the DDA”) for two reasons. First, he has dyslexia. Secondly, he suffers from Attention Deficit Hyperactivity Disorder (“ADHD”). It is also agreed between the parties that it is only the ADHD that is relevant in the circumstances of the present case.

The claimant was interviewed by two police officers on a date during May 2007. He was interviewed by them twice. First, he was interviewed by them informally. During that informal interview, he was not accompanied by his mother. During the second interview he was accompanied by his mother. At both interviews, the claimant told the police officers that he had stolen the wallet.

The formal interview was the sequel to the informal interview. The informal interview began in the following circumstances. A manager within The Plough, the second respondent, Mr Anton Campbell, asked the claimant to come to The Plough restaurant “for a word”. When the claimant got to the restaurant, Mr Campbell “handed him over” to two police officers, who then began the informal interview.

Before that interview began, Mr Campbell didn’t explain to the claimant why the police were there or warn him that the police were going to interview him. Furthermore, Mr Campbell didn’t tell the police that the claimant had ADHD. Nor did he tell the police that the claimant needed to have his mother present at any interview.

The claims and the defences

In this case, the claimant claimed that his dismissal was a discriminatory dismissal, within the meaning of the DDA, solely because of a failure to make reasonable adjustments.

According to Ms McIlwaine, the reasonable adjustments which ought to have been made, were as follows. First, either Mr Patterson or Mr Campbell should have told the claimant, prior to the start of the discussion with the police, that the police wished to interview him in connection with the theft (so that the claimant could arrange for his mother to be present at any interview). Secondly, Mr Patterson or Mr Campbell should have told the police of the claimant’s ADHD, so that the officers would be able to make sure that the claimant’s mother would be present prior to the commencement of any interview or discussion.

Ms McIlwaine says that, because of those failures, the claimant made his inaccurate admission of guilt to the police officers during the first interview and then repeated that admission in the second, formal, interview.

Ms McIlwaine says that, because of the claimant’s ADHD, he is more prone to follow suggestions and, having once decided on a particular course of action, he is less inclined to change his mind. She says that those were the two crucial factors which resulted in the claimant making the inaccurate admission of guilt during the course of his first, informal, interview with the police, and continuing to persist in that confession during the second, more formal, interview.

The defences of the respondent in relation to the reasonable adjustment issue are as follows:

First, the respondents assert that, in May 2007, they did not know, and could not reasonably be expected to know, that the claimant had ADHD and that he was likely to be affected (in the absence of any prior notifications) in the ways described above.

In any event, according to the respondents, the relevant omissions (the omissions to notify, as described above), do not fall within the scope of the reasonable adjustment duties which are imposed by Section 4A of the DDA.

In any event, they say, it would not have been reasonable, within the meaning of Section 18B of the DDA, for the respondents to have taken the steps mentioned at paragraph 8 above.

Because of our conclusions in respect of issue (1), we have not had to arrive at conclusions in respect of issue (2) or issue (3).

The claimant also makes a claim for unfair dismissal.

The claimant was dismissed because the employers believed that the claimant had carried out the theft of which he was accused. Ms McIlwaine accepted that this was dismissal for a reason relating to conduct and that dismissal for such a reason is a potentially fair reason for dismissal, within the context of the unfair dismissals legislation: See Article 130(2) of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).

The relevant legal principles, in the context of a “conduct” unfair dismissal claim, can be summarised as follows. The main task of an employment tribunal is to determine whether, in all the circumstances, the employer carried out a reasonable investigation and whether, at the time of dismissal, the employer genuinely believed on reasonable grounds that the claimant was guilty of misconduct (regardless of whether or not, in reality, the hypothetical claimant really was guilty of such misconduct). If satisfied of the employer’s fair conduct of the dismissal process in those respects, a tribunal then usually has to decide whether the dismissal of the claimant was a reasonable response to the misconduct.

If a reasonable investigation has not been carried out during the course of the disciplinary process, a dismissal may nevertheless still be fair if the employer shows that, even if he had followed fair procedures, he would have decided to dismiss the employee in any event: See Article 130A(2) of the 1996 Order, as amended.

Against that background, Ms McIlwaine did not argue that the dismissal was rendered unfair because of any shortcomings in the employer’s disciplinary investigatory process (although she was critical of that process in some respects). She also accepted that, at the time of the dismissal, the employer genuinely believed, on reasonable grounds, that the claimant was guilty of the relevant misconduct (because of the inaccurate admission that the claimant had made to the police). Furthermore, Ms McIlwaine did not argue that dismissal for the theft of a colleague’s wallet would be a disproportionate sanction.

However, Ms McIlwaine argued that the dismissal was nevertheless unfair, basing her argument solely on the contention that the respondents had been at fault in failing to take the actions referred to at paragraph 8 above. Therefore, in reality, the alleged shortcomings which were the focus of criticism in relation to the DDA discriminatory dismissal claim were also the focus of attention in relation to the unfair dismissal claim.

Reasonable adjustments: Some key statutory provisions

The DDA (as amended) provides as follows:

Section 4A provides that where a provision, criterion or practice, applied by or on behalf of an employer, places a relevant employee (an employee who is a disabled person) at a substantial disadvantage in comparison with others 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 relevant provision, criterion, or practice having that effect.

Section 18B of the DDA (as amended) provides that, in determining whether it is reasonable for a person to have to take a particular step in order to comply with the duty to make a reasonable adjustment, regard is to be had to a variety of matters, including the following:

the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

the extent to which it is practicable for the employer to take the step; and

the nature of the employer’s activities.

Section 4A(3) contains provisions which are of crucial importance in the present context. So far as material, Section 4A(3) is in the following terms:

“(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know –

…

(b) … that that person has a disability and is likely to be affected in the way mentioned in sub-section (1)”.

Reasonable adjustment: The claimant’s arguments

Ms McIlwaine asserted that, because of the claimant’s behaviours and difficulties (which, Ms McIlwaine contended, the respondents must have observed during the course of the claimant’s long period of employment at The Plough), they should, by May 2007, have known that he had ADHD (or that he had some similar condition) and they should, by that time, also have known that, during the course of any police interview, he would need to be accompanied by a responsible adult.

The sources of evidence and the facts

We received oral testimony from the claimant, who gave evidence on his own behalf. We also received oral testimony from each of the two respondents.

We also saw two agreed bundles of documents, along with a small number of miscellaneous documents. We told the parties that, in relation to any bundle, we would have regard only to documents to which our attention was specifically drawn.

We now set out findings of fact which are relevant to the issues which we have determined:

The symptoms of ADHD can include the following. First, there can be a greatly reduced ability to maintain attention without being distracted, there can be a greatly reduced ability to control what the person is doing or saying (because of impulsivity) and there can be a greatly reduced ability to control the amount of physical activity appropriate to any particular situation (because of being restless and fidgety). People with ADHD are more likely than other people to be obsessive.

Obviously, ADHD affects different people in different ways, and to different extents.

Common symptoms of ADHD include shifting from one incomplete activity to another, and interrupting others.

We are satisfied that, prior to the date of the police interviews, in May 2007, nobody in authority in The Plough was explicitly informed that the claimant had ADHD.

In particular, Mr Derek Patterson told us that he had never been informed to that effect. We considered Mr Patterson to be an honest witness.

In arriving at that assessment, we took full account of Mr Patterson’s demeanour and manner of giving evidence. We also took account of the fact that he initially inaccurately told us that the claimant had begun to work at The Plough as the result of a college placement (as distinct from coming to work with them as a result of a direct Plough recruitment process). However, we accept that this was an honest error on Mr Patterson’s part.

Mr Campbell knew that the claimant was in receipt of DLA, but assumed that the claimant was receiving this because of his dyslexia. We note that DLA is received by people because of a variety of ailments, many of which do not lead to the status of “disabled person” for the purpose of the DDA.

In his application form of February 2002, the claimant stated that he did not suffer from any “… condition which may affect your skills or safe working…”.

During the course of his employment, at any time prior to the date of the police interviews, it had never been suggested to the respondents, either by the claimant or by Ms McIlwaine, that she (or anyone else) would be a necessary communications channel, or a necessary source of support for the claimant, in any stressful or burdensome situation.

When the claimant was disciplined, in relation to an unrelated matter, in April 2007, he participated in a disciplinary hearing, without any appearance of disproportionate personal strain, and never suggested that his mother, or some other person, would need to be present during the disciplinary hearing.

Throughout the course of his employment at The Plough, the claimant showed no signs of exceptional behavioural shortcomings or difficulties. He was a well-liked and lively member of staff at The Plough. He was quick and responsive. He was witty and talkative.

In particular, Mr Patterson respected him.

Mr Campbell and Mr Patterson knew that the claimant was not a good reader or writer. They assumed that this was because of his dyslexia.

Like many workers in the catering trade, the claimant has very good practical and artistic skills, but is less gifted academically.

During the course of personal interactions at work, the claimant was typically in control and typically behaved appropriately.

You need to be quick and responsive if you are working in a restaurant kitchen and the claimant exhibited both of those qualities during his lengthy period of employment at The Plough.

The claimant gave evidence in the present proceedings. He was clear, concise and responsive, although (like many witnesses) he was relatively ill at ease in his capacity as a witness.

The claimant was a success in the job to which he was originally appointed. As a result, he was “promoted”, in that he was allocated a supervisory role.

The claimant sometimes gave the impression that he was a little slower on the uptake than most. However, he developed a reputation of knowing precisely what he was required to do, and for doing it well.

Ms McIlwaine considers that Mr Patterson and Mr Campbell should have realised that the claimant had ADHD or a disorder which was similar to ADHD, because of understanding and behavioural problems which, Ms McIlwaine asserts, the claimant must have exhibited during the course of his employment at The Plough. However, having considered the sworn testimonies of Mr Campbell, Mr Patterson and the claimant, we are satisfied that there were no obvious understanding or behavioural problems of kinds which would lead a reasonable person to suspect that a worker had an ADHD-type problem.

Until May 2007, nobody at The Plough ever believed, or had reason to believe, that the claimant would ever come under suspicion in respect of theft. Therefore, there was never a live issue as to whether the claimant would, or would not, require the attendance of a third party during the course of any police interviews. The situation which arose in May 2007 was a situation which was never contemplated prior to May 2007.

Conclusions (DDA)

We have decided that the section 4A(3) issues have to be resolved in favour of the respondents. In particular, we have arrived at the following conclusions:

We are satisfied that, by May 2007, nobody in a position of responsibility at The Plough knew, or could reasonably have been expected to know, that the claimant had ADHD.

By the same date, nobody in a position of authority at The Plough knew or ought to have known (by reason of the factors mentioned at paragraph 20 above, or because of any other factor) that the claimant was likely to admit to an offence which he did not commit, or that he was likely to be disinclined to subsequently withdraw any such admission, or that it would be necessary or appropriate for him to be accompanied at any police interview.

Accordingly, because of the effect of section 4A(3), no relevant reasonable adjustment duty was imposed upon this employer in relation to this claimant. Therefore, there was no failure to make a reasonable adjustment. Therefore, the claimant’s claim of discriminatory dismissal (based, as it is, on the alleged failure to make a reasonable adjustment) fails.

Conclusions (Unfair dismissal)

We have already explained why the discriminatory dismissal claim has failed. The unfair dismissal claim also fails for similar reasons. The latter claim is based on the proposition that the respondents were blameworthy in failing to warn the claimant and/or in failing to warn the police, prior to the carrying out of the relevant police interviews. However, we have concluded that the respondents did not know, and could not reasonably have been expected to know, that any harm would result from the claimant being interviewed without being accompanied. Accordingly, the relevant omissions cannot and do not provide a basis upon which there can properly be a finding of unfair dismissal against any respondent.

Chairman:

Date and place of hearing: 9 and 10 March 2009, at Belfast

Date decision recorded in register and issued to parties: