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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Clarke v The Co-operative Group Ltd [2009] NIIT 1734_08IT (19 August 2009)
URL: http://www.bailii.org/nie/cases/NIIT/2009/1734_08IT.html
Cite as: [2009] NIIT 1734_08IT, [2009] NIIT 1734_8IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 01734/08
CLAIMANT: Eugene Michael Clarke
RESPONDENT: The Co-operative Group Limited
DECISION
The unanimous decision of the tribunal is that the claimant’s claim of disability discrimination is dismissed.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Mr R Gunn
Mr E Grant
Appearances:
The claimant was represented by Mr A White of USDAW.
The respondent was represented by Ms Gillian Buxton, Solicitor.
The Claim
1. The claimant’s claim was in respect of failure to make reasonable adjustments, under the Disability Discrimination Act 1995 (as amended), (“the Act”). The respondent denied all of his claims. A Case Management Discussion was held on 23 April 2009 which referred, inter alia, to the issue of definition of disability. It was agreed by both parties, at the outset of the hearing, that the definition issue was no longer relevant.
Issues before the tribunal
2. The issue before the tribunal was as follows:-
Did the respondent discriminate against the claimant in failing to comply with a duty to make reasonable adjustments imposed on it in relation to the claimant?
Sources of Evidence
3. The tribunal heard evidence from the claimant and, on behalf of the respondent, from Sarah Thumann, Store Manager, Keith Thomlinson, Operations Manager, and Sonia Hamilton, Regional Human Resources Manager. The tribunal also received an agreed bundle of documentation and took into account only those documents referred to in the course of evidence.
Findings of Fact
4. Having considered the evidence as so far as same related to the issue before it, the tribunal made the following findings of fact on the balance of probabilities:-
(i) The respondent is a retail co-operative society, having a trading outlet at Larne, County Antrim, where the claimant was employed. In August 2003, the claimant who had been employed by the respondent since 1994, transferred from day duties to a night shift contract as a Customer Services Assistant. This was not a supervisory role but attracted a one third premium for unsociable hours.
(ii) In January 2006 the claimant was diagnosed as having depression. He was off work until June 2006 when he returned to night shift duties. He went off sick again with depression in February 2008 and, following a welfare/absence review meeting on 18 July 2008, telephoned Sonia Hamilton, the respondent’s Human Resources Manager, to state that on medical advice he was not to return to night shift duties. The tribunal is satisfied that during this telephone conversation the claimant did not request a supervisory role. Sonia Hamilton discussed a transfer to day shift duties as a Customer Services Assistant at a rate of £5.61 per hour. This is the rate the claimant was already on during night shift duties plus a one third premium for unsociable hours. The claimant was clearly upset by the news that he would be earning £5.61 per hour. He raised a formal grievance on 18 September 2008 in which he also referred to disability discrimination. His general practitioner, Dr A J McIlroy, forwarded a report to the respondent on 25 September 2008 which includes the following:-
“I am currently unable to indicate a potential date when Mr Clarke would be able to return to work, however I would be hopeful that this may possibly be within the next 8 weeks … I think therefore the main aspect in which the Co-Operative would be able to help Mr Clarke in the regard would be to facilitate a move away from permanent night shift. I understand that this option has been offered to him however, I was shocked to learn that by doing this the Co-Op was cutting his wage considerably, this has worsened his symptoms significantly.”
(iii) A grievance hearing was heard on 10 October 2008 by Sarah Thumann, Store Manager. An employee, Mrs McNeil, was scheduled to go on maternity leave. The claimant was offered a temporary supervisor’s role during her absence. At that stage the rate of pay was not determined and the meeting was adjourned until 20 October 2008. The claimant was then offered a temporary supervisor’s role as previously discussed at the rate of £6.76 per hour. It was also clear to the tribunal that there had been a restructuring within the respondent’s organisation preceding 1 September 2008 and Store Supervisors had a much broader role than the previous Sector Supervisors. There was also a salary range for store supervisory staff. The tribunal accepts the respondent’s evidence that, except in very rare circumstances, Store Supervisors would not start on a salary higher than £6.70 per hour. The claimant contended, because of his previous experience and qualifications, that he should have been started on a salary higher than £6.70 per hour.
(iv) The tribunal was referred to correspondence of 29 October 2008 signed by Sarah Thumann, relating to the outcome of the first stage grievance hearing. It outlined the three points made by the claimant in his grievance letter as follows:-
“1. You felt due to the nature of a previous grievance lodged in 2005, you are concerned at how your situation was being handled.
2. You felt that you were being discriminated against due to the very nature of your disability and the company not fulfilling their duty of care to yourself as an employee.
3. The offer of a day job position, which is a drastic reduction in your wages which you felt was not helping with your ongoing disability and stated that it would be detrimental to your mental health and selfworth.”
This same letter also summarises the position as follows:-
“During our hearing of 10 October 2008 you were also offered the option of taking up a full time store supervisor post to cover maternity leave which we were hoping to begin in November or December 2008, again with a phased return to work adjustment plan also being offered and the provision of training and support to undertake this role. I also advised that there may be permanent career opportunities within the store over the duration of the maternity leave.
We held the follow up meeting on 20 October 2008 to explore this option. In this hearing you have stated that in consultation with your GP, you had hoped to return to work in the beginning of December 2008. At our meeting, I informed you that the salary for this role is £6.76 per hour and duly issued you with a copy of the job definition to ensure that you understood the role requirements. This maternity cover supervisory post is 31 hours per week, however as you had indicated you were keen … not to suffer financially, in an attempt to assist your financial situation concerning your salary and also responding to a business need, the Group had offered you this position in a full-time capacity of 39 hours per week.
You had advised that you felt the role should be paid at higher rate as there were greater responsibilities and that the current post holder was being paid at a higher rate of pay. I would like to explain that in accordance with the Group’s recruitment practices, it is the norm for staff members who are being promoted or seconded to a higher post such as a Customer Services Assistant to Store Supervisor, to commence at the start of the salary band. In addition, you also advised you were declining this option as it was a temporary post with no guarantees of securing a permanent role.”
(v) The claimant appealed against the stage 1 grievance on 30 October 2008. On 14 November 2008 he presented his claim to the Tribunal Office and at the same time furnished a disability discrimination questionnaire to the respondent. On 21 November 2008 a stage 2 grievance hearing was held by Mr Thomlinson, Operations Manager. Mr Thomlinson offered the claimant a permanent supervisor’s position. The claimant requested an hourly rate of £7.40 and, in the outcome letter dated 28 November 2008 signed by Mr Thomlinson, he states as follows:-
“Point 1
During our meeting I confirmed that we can offer you a permanent Store Supervisor post. You then queried the rate of pay, as you were initially offered the rate of pay of £6.76 per hour, which is the rate at which the position would have been advertised. In order to resolve the grievance I have decided that we will pay you the rate of £7.40 per hour which you requested, which we believe goes over and above the fulfilment of our duty of care. This role is different to Section Supervisor position and I will forward to you in due course. This Store Supervisor role is pertaining to the new type employment contracts in place since 2004 for any employee appointed to a supervisory position, a copy of which I again will forward to you in due course. Acceptance of this offer is on the basis of agreeing to the contractual terms for this position.
You have stated you were now going to consult with your GP in relation to this offer and would advise us in due course of your decision. I advised that once you are well enough to return to work, we could offer a rehabilitation phase and any necessary training and support to assist you in the role should you wish.”
The claimant claimed that he could not return to work prior to the new year given the pressures of the new job leading up to Christmas. He therefore commenced in his new role on 8 January 2009.
(vi) The claimant’s claim is that there had been a failure to make reasonable adjustments from the beginning of September 2008 until the date of the presentation of his claim to the tribunal on 14 November 2008 and that he ought to have been offered a Supervisor’s post at the rate of £7.40 per hour in September 2008. The tribunal accepts the respondent’s evidence that no vacancies were available during this time period and that the only way of progressing the matter, short of creating a new post for the claimant, was to consider the maternity cover opportunity presented when Mrs McNeil went on maternity leave at the end of November 2008. The tribunal is satisfied that the respondent treated the claimant sympathetically in paying him at a rate of £7.40 per hour for day shifts, (when it was very rare to pay a Store Supervisor above £6.76 per hour for day shifts), and in offering him a permanent post. The tribunal is also satisfied that the respondent did not give the claimant any guarantee as to a Supervisor’s post after completion of Mrs McNeil’s maternity at the earlier meetings of 10 October and 20 October 2008.
The Law
5. (1) In relation to disability discrimination, the relevant law is found in the Act
as amended. The tribunal found the summary given by Lord Justice Hooper in the case of O’Hanlon –v- Commissioners for HM Revenue and Customs (2007) EWCA Civ283 (2007) IRLR404, to be of assistance. He states as follows:-
“22. third, there is the failure to make reasonable adjustments form of discrimination in sub-section (2). Here, 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.”
(2) Harvey on Industrial Relations and Employment Law (Harvey) states at
L (1371) as follows:-
“The identification of the ‘provision, criterion or practice’ that gives rise to the disadvantage triggering the duty is a matter which requires considerable care, since failure to identify this correctly risks invalidating, for the purposes of the duty to make reasonable adjustments, any finding of substantial disadvantage by comparison with persons who are not disabled (Smyth –v- Churchill Stairlifts plc [2005] EWCA Civ 1220, (2006) IRLR 41, (2005) ICR 524, per Maurice Kay LJ at para 34)”.
Harvey continues at paragraph (1371.01) as follows:-
“In simple terms, it is only when the ‘provision, criterion or practice’, has been identified that it is possible to define the ‘pool’ of comparators for the purpose of seeing whether there has been the requisite substantial disadvantage of the disabled person in comparison to the non-disabled. This can be seen in the following cases (and note, as set out at para (1370.02) above, old case law concerning ‘arrangements’ continues to be relevant as s68 provides that a ‘provision, criterion or practice’, will include any ‘arrangement’)”.
(3) The tribunal also took into account relevant sections in the Disability Code of Practice Employment and Occupation (“the Code”), being careful not to use the Code to interpret the legislative provisions.
(4) Reasonable Adjustments
(i) The Tribunal considered carefully the provisions of Sections 4A and 18B of the Act. Paragraph 5.3 of the Code states:-
“The duty to make reasonable adjustments arises where a provision, criterion or 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. 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, an employer cannot justify a failure to make a reasonable adjustment……
…5.4 It does not matter if a disabled person cannot point to an actual non disabled person compared with whom she/he is at a substantial disadvantage. The fact that a non disabled person, or even another disabled person, would not be substantially disadvantaged by the provision, criterion or practice or by the physical feature in question is irrelevant. The duty is owed specifically to the individual disabled person.
…. 5.11 The Act states that only substantial disadvantages give rise to the duty. Substantial disadvantages are those of which are not minor or trivial. Whether or not such a disadvantage exists in a particular case is a question of fact.
… 5.24 Whether it is reasonable for an employer to make any particular adjustment will depend on a number of things, such as its costs and effectiveness. However, if an adjustment is one which it is reasonable to make, then the employer must do so. Where a disabled person is placed at a substantial disadvantage by a provision, criterion or practice of the employer, or by a physical feature of the premises it occupies, the employer must consider whether any reasonable adjustments can be made to overcome that disadvantage. There is no onus on the disabled person to suggest what adjustments should be made (although it is good practice for employers to ask) but, where the disabled person does so, the employer must consider whether such adjustments would help overcome the disadvantage, and whether they are reasonable.”
(ii) The Tribunal also considered the types of adjustments which an employer might have to make and the factors which may have a bearing on whether it would be reasonable for an employer to make a particular adjustment. These are set out in Section 18B of the Act as follows; (in so far as may be material and relevant)
“Reasonable adjustments: supplementary
18B.—(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to -
(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;
(b) the extent to which it is practicable for him to take the step;
(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;
(d) the extent of his financial and other resources;
(e) the availability to him of financial or other assistance with respect to taking the step;
(f) the nature of his activities and the size of his undertaking; …
(2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments –
(a) making adjustments to premises;
(b) allocating some of the disabled person’s duties to another person;
(c) transferring him to fill an existing vacancy;
(d) altering his hours of working or training;
(e) assigning him to a different place of work or training;
(f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;
(g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person);
(h) acquiring or modifying equipment;
(i) modifying instructions or reference manuals;
(j) modifying procedures for testing or assessment;
(k) .…
(l) providing supervision or other support.
(3) ….
(4) ….
(5) ….
(6) A provision of this Part imposing a duty to make reasonable adjustments applies only for the purpose of determining whether a person has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.”
(iii) The Tribunal also considered the guidance given to Tribunals in the Employment Appeal Tribunal case of Environment Agency –v- Rowan (2008) IRLR 20 where Judge Serota states at paragraph 27 of his judgment:-
“In our opinion an employment Tribunal considering a claim that his employer has discriminated against an employee pursuant to Section 3A (2) of the Act by failing to comply with the Section 4A duty 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.
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.”
The tribunal also had regard to the Code at Section 8.15 relating to managing disability or ill health and retention of disabled employees. Paragraph 8.16 states, inter alia:-
“If there are no reasonable adjustments which would enable the disabled employee to continue in his or her present job, the employer must consider whether there are suitable alternative positions to which she could be redeployed”.
(iv) In the context of the events from 14 November 2008 until 8 January 2009, the tribunal considered the principles laid down in the EAT decision in Qureshi –v- Victoria University of Manchester (2001) ICR 863, which is cited with approval in Anya –v- University of Oxford and Another (2001) IRLR 377 CA (“Anya”).
6. Burden of Proof
(1) Guidance on the burden of proof in direct discrimination cases is contained in the Annex to the judgement in the case of Igen & Others v Wong [2005] IRLR 258. However the reversal of the burden of proof also applies to cases involving failure to make reasonable adjustments and disability related discrimination.
(2) Regarding the duty to make reasonable adjustments the Tribunal considered the case of Project Management Institute v Latif [2007] IRLR 579. Harvey summaries the position as follows:-
“… the EAT held that a claimant must prove 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 (subject to the Tribunal exercising appropriate control to avoid injustice) for claimants to propose reasonable adjustments on which they wished to rely at any time up to and including the Tribunal hearing itself”.
Submissions
7. Both parties’ representatives helpfully furnished the tribunal with written submissions at the end of the hearing and were given the opportunity of making further oral submissions on the second day of hearing. The claimant’s representative defined the provision, criterion or practice applied by or on behalf of the respondent as, in order to receive the rate of £7.40 per hour, the claimant had to work night shifts. This he contended, was an arrangement and constituted a provision. In relation to the issue of comparators, the claimant’s representative submitted that it was not unreasonable to expect better consideration to be given to persons who were not disabled in September 2008 taking into account their experience and the jobs which they had been doing. This aspect is further articulated in the written submissions appended to this decision.
Conclusions
8. Having considered the evidence carefully together with the findings of fact, the submissions from both parties, and the relevant law, the tribunal concludes as follows:-
(1) The tribunal is satisfied that the requirement placed upon the claimant to work unsociable hours on night duty constitutes a provision criterion or practice applied by the respondent. It is also satisfied that the claimant was therefore placed at a substantial disadvantage in comparison with persons who were not disabled.
(2) The tribunal is satisfied that whilst the claimant has proved facts from which in the absence of an adequate explanation the tribunal could conclude that a duty to make reasonable adjustments has arisen, he has not proved that the duty was breached and therefore the burden does not shift to the respondent to prove either that no such duty arises or that it has not been breached.
(3) The tribunal has sympathy for the claimant in the circumstances in which he found himself. Nevertheless, it finds itself unable to uphold his claim and, accordingly, his claim is dismissed.
Chairman:
Date and place of hearing: 29- 30 June 2009, Belfast.
Date decision recorded in register and issued to parties:
MR.
E. CLARKE -v- TILE CO-OPERATIVE GROUP LIMITED
CASE REF No 1
734/2008
It is the Claimant’s
case that the provision, criterion or practice that required him to work nights
to maintain his earnings put him, as a disabled person, at a disadvantage. This
was due to his inability to work nights because of the nature of his disability.
The extent of this disadvantage was substantial amounting to a reduction of l/3rd in his earnings.
A comparator would be a non-disabled employee with experience and knowledge of higher paid / more senior and responsible jobs who sought a move off nights without a substantial reduction in earnings.
The Respondent’s should have considered reasonable adjustments from the 1st September 2008 when they were aware the that the Claimant was disabled, as defined by the DDA, and that he was dissatisfied with the reduction in his earnings that he would suffer with the proposal of a Customer Services Assistant on days.
The reasonable adjustments the Respondents should have considered were
A)Transferring to an existing
vacancy without reducing his earnings by such a substantial amount.
B) Altering his hours of work without reducing his earnings by such a
substantial amount.
or C) If there were no reasonable adjustments to enable the Claimant to
continue in the job he had been doing, the Respondent’s should have considered
whether there was a suitable alternative position to which he could be
redeployed without the substantial reduction in earnings.
Disability complaints should
be dealt with promptly, seriously, and
sympathetically to achieve an effective resolution.
When the Claimant first
raised his complaint in the telephone call with Sonya Hamilton, Regional HR
Manager, there was no serious or
sympathetic consideration given to the Claimant’s complaint.
At the First Stage grievance meetings on the 10th and 20th of October the manager dealing with the Claimant’s grievance could not give full and proper consideration to all the options/reasonable adjustments open as she was not aware of the potential to increase the rate of pay for the Store Supervisor position. She was not advised that the National Agreement between the Respondent and the Union provides for a “band” of wage rates for the position of Store Supervisor which allows for rates of pay much higher than the “base” rate dependant upon the qualifications, experience and relevant status within the company.
It
was only at the Second Stage grievance meeting on 2Vt November 2008 that
reasonable adjustments were considered effectively. This resulted in the agreed
proposal of a position of fill-time permanent Store Supervisor at the rate of
£7.40 per hour.
The Claimant believes that had his complaint been considered seriously,
sympathetically and effectively on the l September 2008 a resolution along the
lines finally agreed could have been achieved. If this had been done the
Claimant would have been able to return to work soon after that date. However
the failure to deal with his complaint effectively at that time, and the suggested
solution of a Customer Services Assistant at the then rate of £5.61 had a detrimental affect on him according
to his General Practitioner, as stated in the GP’s letter dated 25th September 2008. Due to the worsening of his
condition it took longer for his health to improve sufficiently to enable him
to return to work.
Due to the Respondent’s failure to fulfil the duty to make reasonable adjustment promptly the Claimant believes he has been discriminated against on the basis of his disability.
IN THE BELFAST EMPLOYMENT CASE
NO. 1734/2008
BETWEEN
MR E CLARKE
CLAIMANT
and
TILE CO-OPERATIVE GROUP LTD
RESPONDENT
RESPONDENT’S SUBMISSIONS
A) The Law
I. The relevant law in this matter is found at Section 4A of the Disability Discrimination Act 1995 (as amended):
4A Employers: duty to make adjustments
(1) Where-
(a) a provision, criterion or practice applied by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer,
places the disabled person concerned at a substantial disadvantage in
comparison with persons who are not disabled, it is the duty of the employer to
take such steps as it is reasonable, in all the circumstances of the case, for
him to have to take in order to prevent the provision, criterion of practice, or
feature, having that effect.
2. Even at this stage of the claim, the Respondent is not
entirely sure what the provision, criterion or practice that the Claimant is
relying on is — that is, of course, for the Claimant to make out.
3. However, referring to point 9 on page 120 of the bundle, which is the record
of the proceedings from the CM]) in this case, the Respondent may deduce that that
the Claimant
if is perhaps referring to a
practice of allowing employees to return to work into different roles I without
consideration of their financial circumstances and whether or not they would be
on
less pay than they had previously been.
B) Substantial Disadvantage
4. If that is the alleged practice, the next step is to look at whether it
placed the employee at a substantial disadvantage. Only once that has been
ascertained, can it be argued that a duty to make reasonable adjustments
arises,
5. For that point, the Respondent relies on the Court of Appeal case of NTL Group Ltd v Djfolco [2006] EWCA Civ 1508. At paragraph S of that judgement it says:
“It is plain from the words of section 6 (1) [now section 4A] that a finding of “substantial disadvantage” flowing from “any arrangement made by the employer” is a necessary precondition of the duty to take reasonable steps. The duty does not arise at all unless such a “substantial disadvantage” is established;”
6. The Respondent submits that between the dates of 1 September 2008 and 8 January 2009, the Claimant was not placed at any disadvantage and my reason is this: the Respondent contends that the Claimant was not fit to return to work throughout this time, and believes that he did not intend to return to work throughout this time. Therefore he could not be disadvantaged with regard to his rate of pay.
7. The Act does not say “will place” or “may place” at a disadvantage: It says “places” at a disadvantage and despite what Mr Clarke said in evidence yesterday, the Respondent’s witnesses said that Mr Clarke said he wouldn’t be returning to work until the beginning of December. The notes reflect this at pages 48, 53 and 107 of the bundle. Mr Clarke didn’t actually return until 8 January 2O09.
8. Furthermore, the doctor’s report from 25 September 2008, on page 32 of the
bundle, states at paragraph a) that the doctor is hopeful that Ms Clarke will
possibly return to work within the next 8 weeks. This is not qualified by
adding the word, “subject to his rate of pay being agreed”.
9. The Respondent submits that Mr Clarke’s approach on 1 September 2008 by way of a brief telephone call was an exploratory one given that he had been advised not to return to night shift. He was not at that point ready to return to work, therefore he was not placed at a substantial disadvantage in relation to his pay. Consequently, no duty to make reasonable adjustments arose.
C) Reasonable adjustments does not extend to pay
10. In the alternative, the Respondent submits that the duty to make reasonable
adjustments does not extend to ensuring that the employee suffers no financial
loss.
11. Pay is not mentioned as an example of a reasonable adjustment in Section 18B(2)
of the Act, nor in paragraph 5.20 of the Disability Rights Commission
Code of Practice 2004.
12.I would also refer the tribunal to the case of O’Hanlon v Commissioners
for HM Revenue & Customs [2007] EWCA Civ 283. Although this case
relates to the payment of sick pay, numerous points are made which, I submit,
are helpful in this situation.
13. The judgement by the Court of Appeal repeats and approves the following
findings of the EAT in that case:
64. We accept of course that in the usual case the focus must be on the
particular disability and the steps taken to alleviate the disadvantages to the
individual. But that is because each ease is generally unique. The adjustments
depend on the particular way in which the disability manifests itself Here it
is plain that the case advanced before the employer was that the policy was unjust
to the disabled (or at least those who would have to take disability related
sickness absences). It was suggested that she would suffer hardship as a result
of the reduction in pay, but it was not alleged that she was in any essentially
different position to others who were absent because of disability related
sickness. In these circumstances, where the employers responded to the claim as
it was advanced, it would be quite unjust and unrealistic to say that the
employers should now be found to have failed to establish justification because
they did not have regard to other unstated factors relating to this Appellant. In
any event, it seems to us that it would be wholly invidious for an employer to
have to determine whether to increase sick payments by assessing the financial
hardship suffered by the employee, or the stress resulting from lack of money -
stress which no doubt
would be equally felt by a non-disabled person absent for a similar period.
67. In our view, it will be a very rare case indeed where the adjustment
said to be applicable here, that is merely giving higher sick pay than would be
payable to a non-disabled person who in general does not suffer the same
disability related absences, would be considered necessary as a reasonable adjustment.
We do not believe that the legislation has perceived this as an appropriate
adjustment although we do not rule out the possibility that it could be in
exceptional circumstances. We say this for two reasons in particular.
68. First, the implications of this argument are that Tribunals would have to
usurp the management function of the employer, deciding whether employers were
financially able to meet the costs of modifying their policies by making these
enhanced payments. Of course we recognise that Tribunals will often have to
have regard to financial factors and the financial standing of the employer,
and indeed section l8B(1) requires that they should. But there is a very
significant difference between doing that with regard to a single claim, turning
on its own facts, where the cost is perforce relatively limited, and a claim
which if successful will inevitably apply to many others and will have very
significant financial as well as policy implications for the employer. On
what basis can the Tribunal decide whether the claims of the disabled to
receive more
generous sick pay should override other demands on the business which are
difficult to compare and which perforce the Tribunal will know precious little
about? The
Tribunals would be entering into a form of wage fixing for the disabled sick.
69. Second, as the Tribunal pointed out, the purpose of this legislation is to
assist the disabled to obtain employment and to integrate them into the
workforce. All the examples given in section 18B(3) are of this nature.
True, they are stated to be examples of reasonable adjustments only and are not
to be taken as exhaustive of what might be reasonable in any particular case,
but none of them suggests that it will ever be necessary simply to put more money
into the wage packet of the disabled. The Act is designed to recognise the
dignity of the disabled and to require modifications which will enable them to
play a full part in the world of work, important and laudable aims.
It is not to treat them as objects of charity which, as the Tribunal pointed
out, may in fact sometimes and for some people tend to act as a positive
disincentive to return to work
14.I submit that these findings, specifically those I have underlined, apply in this instance to the issue of increasing an employee’s pay so as not to cause him any financial loss.
D) Respondent went above and beyond
15. Finally, I move to the adjustments that were made by the Respondent.
16. The Respondent submits that the issue brought to it on 1 September 2008 was
Mr Clarke’s inability to work nights on the advice of his OP. An immediate
adjustment was agreed by Mrs Hamilton, to move him onto days in the same role
he had been on on the night shift. Mr Clarke was unhappy about this and he referred
to the “unfair drastic cut in his wages”. Such wording implies that the
Respondent had arbitrarily reduced his rate of pay, when in fact, on days, Mr
Clarke was no longer entitled to the unsociable hours premium that he had
received on nights. No employee switching from nights to days would continue to
receive that premium payment.
17. In an effort to overcome this problem, an offer was subsequently made of a
supervisory role, albeit temporary to cover maternity leave, at the rate of
£6.76 per hour. Both Mrs Thumann and Mrs Hamilton have said that at no time did
Mr Clarke specifically ask for a supervisory role. I submit that this was the
Respondent’s attempt to try to get Mr Clarke back to work and minimise any
effect on his pay.
18. Unfortunately, Mr Clarke was still unhappy and wanted a permanent position
at a higher rate of pay, despite the fact that, had he remained as a section
supervisor from 2005, he would only have been earning £6.92 per hour.
19. Following a grievance process, this was actually given to him and was given
to him in advance of him being fit to return to work. He had got what he
wanted.
20. The Respondent submits that at the material time, i.e. when Mr Clarke was due
to return to work, the Respondent had made all reasonable adjustments and had
in fact gone above and beyond the duty required of them.
21. It seems that the Claimant’s representative was saying yesterday that
because the Respondent had eventually acquiesced to the Claimant’s request in
November 2008, this
meant that they could have and should have done s* in September p008. Not only does this make a mockery of any grievance procedure, but it seems to me absurd to suggest that where an employer goes above and beyond what is required of them, that that then becomes the minimum of what is required.
22. Most significantly, I would like to point out that at no time between 1
September 2008 and the end of December 2008 were there actually any vacancies
within the store for full time supervisors or customer service assistants.
23. Section ISB(2) of the DDA suggests examples of reasonable adjustments and
includes, “c) transferring him to 1 an existing vacancy”,
24. Note the word “existing”. There is no suggestion that a role should be
created, which is of course, what was done at every stage of this case.
25.1 submit that this is yet another indication of the Respondent going further
than the law required them to do.
E) Remedy
26. My only further submissions relate to remedy, upon which I will elaborate later
on if necessary. They are namely:
i) In relation to the Claimant’s claim for loss of earnings, I rely on the same
arguments as I did for substantial disadvantage i.e. The Claimant was not fit
to return to work
until January 2009 therefore he can have no loss of earnings. In the
alternative, I submit that if an acceptable offer had been made to the Claimant
at the beginning of September 2008, it would have been another 5-6 weeks before
he started in that role, as was the case after the offer was made in November.
Therefore that period should be excluded from any calculation.
ii) Any injury to feelings award, if allowed, should be limited to the lower
Vento band, especially given the extra steps taken by the Respondent