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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McQuiston v G4S CIT (UK) Limited [2010] NIIT 01897_09IT (08 October 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/01897_09IT.html
Cite as: [2010] NIIT 01897_09IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1897/09
CLAIMANT: Jack McQuiston
RESPONDENT: G4S CIT (UK) Limited
DECISION
The unanimous decision of the tribunal is that the respondent did not fail in its duty to make reasonable adjustments, in respect of the claimant, under the Disability Discrimination Act 1995.
Constitution of Tribunal:
Chairman: Mr N Kelly
Members: Mr S Adair
Mrs E Kennedy
Appearances:
The claimant was represented by Mr G F Wilson.
The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Jones Cassidy Jones Solicitors.
The Issues
1. In his final submission on behalf of the claimant, Mr Wilson withdrew a claim of unauthorised deductions from earnings and a claim of victimisation contrary to Section 55 of the Disability Discrimination Act 1995 (the 1995 Act).
2. The issues remaining for determination were a claim that the respondent had failed to make reasonable adjustments in respect of the claimant, contrary to Section 3(a)(ii) of the 1995 Act, and had directly discriminated against the claimant on the ground of disability, contrary to the 1995 Act.
Relevant Findings of Fact
3. The respondent company is a security services company which is engaged in two activities which are relevant to this decision:-
Firstly, it delivers and collects cash to and from banks and retail premises. This is referred to as CIT (Cash In Transit) work. A typical CIT run would involve between 30 and 40 stops. Bags of coins weighing between 4 and 7.1 Kilos and boxes containing bank notes, weighing between 8 and 9 Kilos, would then be carried to and from the premises.
Secondly, the respondent company refills ATMs at various sites in Northern Ireland. Employees engaged in that work have to carry boxes, known as SQS boxes, which, when empty, weighed 9.1 Kilos and, when filled with a cassette of banknotes weighed 11 Kilos.
The correct title for the respondent is “G4S CIT (UK) Limited” and the claim is amended accordingly.
4. The claimant started work with the respondent on 13 March 2006. He was employed as a driver engaged mainly on CIT work but as a regular part of his duties, he was required to, and did, carry boxes of banknotes and bags of coins from his van to various premises.
5. The claimant was also occasionally called upon to undertake ATM work, on average about once a month. On the occasions when the claimant had been required to carry out such work, before 30 August 2008, that work had been performed by a three man team. His duties on those occasions involved collecting a filled SQS box from a shute at the back of the van and carrying it into the premises where the ATM was situated. He would then hand the SQS box to another individual who was trained specifically in loading the ATM machine. He would then return the empty SQS box and put it back in the shute at the rear of the van.
6. The claimant had not received the more detailed training required for loading an ATM machine but had received basic training in the manual handling of the SQS box and in the operation of the relevant vehicle. He was therefore sufficiently trained for the duties he was asked to undertake.
7. The claimant had a history of low back pain since at least 2004. During a grievance hearing, he stated to the respondent that he had had a back problem:-
“Probably for four years or so ago before I joined G4S.”
That would have put the start of his back pain at some point in 2002. However it is sufficient, for the purposes of this decision, to reach a finding that his history of low back pain commenced no later than 2004.
8. In his application form for his employment with the respondent, completed on 4 January 2006, the claimant was asked whether he suffered or had suffered in the past from “rheumatism, back pains, arthritis or mobility problems”. He indicated that he had not. He also indicated that he was not currently taking any medication. In a medical questionnaire completed by the claimant at the request of the respondent on 13 March 2006, he was asked whether he was suffering from, or ever had persistent illnesses connected with “internal injuries or disorders which could affect lifting ability” or “back pain/trouble”. He answered both questions in the negative. He again indicated that he was not taking any medication.
9. On 28 August 2008, the claimant was engaged on a normal CIT shift. He was told by his line manager, Mr Mark O’Gara, that he was rostered for ATM work on the next working day, 30 August 2008. The claimant told Mr O’Gara that he would “prefer not to” do the ATM work because he was having problems with his back.
10. The claimant did not say that he was unable to do the ATM work. He did not disclose the extent of his back problem. He did not say that he had been receiving medical treatment, including a MRI scan and physiotherapy. He did not say he was disabled.
11. The ATM work was, on this occasion, to have been performed by a two man crew. This would have required the claimant to get into and out of the back of the van to collect the SQS boxes, rather than simply collecting those boxes from a shute at the back of the van.
12. Mr O’Gara asked the claimant if he would be willing to be examined by the respondent’s Doctor. The claimant agreed. Mr O’Gara then tried to get a replacement driver for the ATM shift on 30 August, but, on his unchallenged evidence, was unable to do so in the time available. The claimant accepted in his evidence that this was the first occasion on which he had raised the issue of back pain with the respondent and that he had previously carried out his duties, including ATM work, without complaint. The claimant remained on the roster for the ATM shift.
13. The claimant performed that ATM shift on 30 August 2008. He did not refuse to do so and he did not indicate at that time that he was unable to do so, or that it would cause him any serious injury. He made no further complaint at that time.
14. Before he started the shift on 30 August 2008, another manager employed by the respondent, a Mr Clarkson, put a trolley up on the table in the Mallusk premises. He told the claimant that Mr O’Gara had said that the claimant could take that trolley out today and that it would help him.
15. In his evidence to the tribunal, the claimant described this trolley as heavy and of the type that would have been used in the respondent’s yard. The evidence from the respondent’s witnesses was that it was a small collapsible aluminium trolley which was “standard issue” for ATM runs. The tribunal has significant doubts about the claimant’s credibility. In any event his evidence in this respect was particularly unconvincing. He asserted first that the trolley which had been offered to him was not collapsible. He then accepted, almost in the same breath, that he had not checked to see if it was collapsible. It seems inherently unlikely that the claimant’s line manager would have offered him a trolley of the type described by the claimant and the tribunal prefers the evidence of the respondent in this respect. The tribunal therefore concludes that the trolley offered to the claimant was a small, aluminium collapsible trolley of a type suitable for this work.
16. In any event, the claimant did not take the trolley with him although he does not appear to have made any complaint in that respect at the time. In his initial evidence to the tribunal, the claimant stated that there was nowhere to put the trolley, that it was “something else to worry about” and “something else to carry”. He also stated that in relation to his first stop on that shift, there were two sets of stairs to be negotiated and that the trolley would not have been any use in respect of that stop. He did not indicate whether or not it would have been of any use in relation to the other stops to be made during that shift.
17. The claimant concluded the shift on 30 August 2008 and then went on sick leave with back pain for two days self-certified and 14 days certified by his GP. He returned to work on 16 September 2008.
18. At the end of September 2008, the claimant was examined by the respondent’s Occupational Health Service, Maitland Medical. In a report dated 2 October 2008, Maitland Medical summarised the report from the Occupational Health position as:-
“The examining Doctor confirms that he saw this man for the purpose of preparing this report. He states he is in post with G4S and finds some of the work heavy. He has been in physical work previously. He finds G4S duties increase his low back pain. He states that he finds that loading ATMs requires more bending and stooping and working in confined spaces and is heavier than his usual cash delivery work. He attended his GP and was referred to an Orthopaedic Clinic. He has had an MRI which he states has confirmed some disc problems in his lower back. Physical examination revealed this man to be stocky but not overweight. Lower spinal movements are considerably reduced. There is some evidence that the nerves in the lower back are compressed. His mental state was assessed as being normal. The view is that he has some lower back problems which lead to episodes of mechanical low back pain. The conclusion of the examining Doctor is that “I believe Mr McQuiston was struggling in the long-term to undertake work which is heavy and manual or may require frequent bending or stooping.” The belief is that his work should be adjusted accordingly. Mr McQuiston expressed a view that he wished to be maintained in work if at all possible. The view of the examining Doctor was that he may well be considered disabled under the DDA considering his walking is limited to 15 minutes or so on a flat surface.”
19. Maitland Medical then continued:-
“We do have a very worrying state of affairs. I have no doubt as to the genuiness of this man’s problems and clearly he links his symptoms one way or another to work (if not the cause but that it worsens them). He already has a limited ability to walk (which does beg the question as to how he discharges CIT or ATM duties at all in my opinion). Whilst I do not want to blight this man’s working life, I agree with the examining Doctor that ATM and I would suggest, CIT work, is not particularly suitable for him. Although he makes a distinction between CIT and ATM work I believe the difference is small considering the symptoms he describes to the examining Doctor and the abnormalities reported on the scan.”
20. That report was referred by Mr O’Gara to his line manager, Mr Richard Stubber on 7 October 2008. Mr Stubber was unable to remember exactly when he read the report but the tribunal concludes that it must have been shortly after 7 October.
21. On 14 October 2008, Mr Stubber wrote to the claimant inviting him to a meeting on 15 October to discuss his current medical status.
22. At that meeting, Mr Stubber read out the medical report and indicated that it:-
“Basically states that you won’t be able to work on CIT and ATM.”
The claimant disagreed “totally” with the content of the report. He stated that he had a problem with ATM work but not with CIT work. At the claimant’s request his GP was contacted to provide additional information.
23. A second opinion issued from Maitland Medical to the respondent on 12 November 2008. Maitland Medical had received a report from the GP and a report from the specialist physiotherapist employed by Belfast Health and Social Care Trust dated 12 April 2008. That latter report referred to a four year history of low back pain. It stated the claimant had described “pins and needles in his lumber spine and bilaterally down both legs”. It stated that the claimant “feels the symptoms are aggravated in prolonged sitting and on any prolonged static posture.” It also recorded that he was at that time, taking four Co-dydramol tablets per day. It described that he had a moderate degree of loss of movement in his lumber spine and decreased sensation on his left side. He had been referred for an MRI scan and subsequently for physiotherapy.
The general practitioner’s input was summarised as follows:-
“The GP confirmed that this man has been registered by the practice for a number of years. He forwarded us copies of his scans and other specialist reports. The GP confirmed two weeks certification on 14 September 2008 for low back pain. The GP states that he was unaware of any home, social or relationship issues that may be relevant. By way of prognosis the GP states the following:-
“Given the length of time he has experienced low back pain I would imagine that this would be a chronic problem. He manages his pain well and has adapted his life to cope. Hopefully time off work should be relatively infrequent.”
24. In this second report Maitland Medical continued:-
“I would have to say that the report from the GP and the copy correspondence is only marginally more reassuring. What we have available to us suggests a recurring low back problem which has been an issue over a four year period. The symptoms have been severe enough to require specialist referral earlier in the year and MRI scans which although not identifying any serious underlying disc problem does demonstrate the concern of both the GP and the specialist who saw him. It would seem that this man has no so-called surgical problem with his back but does have a significantly sufficient and recurring problem for the GP to pass the comments he has above and for the examining Doctor to call into question his suitability and fitness for his own mix of duties. What we have available to us would have led me to advise you, if this man had been a new applicant, that he is unfit for ATM or similar work. Obviously there is a balance to be achieved but considering the evidence we have and in the event of this man having recurring problems which he links to his duties at work, I think it may be considered that we have in some way “let him down” if he is allowed to continue. The conclusion is that this man requires a different mix of duties and I am not sure if this can be accommodated within ATM work. An alternative mix of duties perhaps cash centre work or similar would still be my preference, however disappointing this may be from the employee’s point-of-view but of course we must put his safety first.”
25. On 17 November 2008, Mr Stubber wrote to the claimant offering him four alternative jobs within the respondent’s organisation. The claimant, under protest, selected one of those options, i.e. as a full-time cash processor at £7.06 pence per hour. This was significantly less than his earlier hourly rate of £10.00 per hour and his shift pattern and overtime opportunities were also different. This resulted in an average monthly loss of £507.23 Nett. The claimant had been taken off CIT duties on 16 October, the day after his initial meeting with Mr Stubber, and had been placed, at the higher hourly rate, on a temporary job cleaning ATM sites. He accepted in evidence that this was only a temporary posting and could not have continued.
26. The claimant started work in his new post on 24 November 2008 and remains in that employment.
27. On 13 January 2009 the claimant submitted a grievance alleging that his treatment amounted to discrimination contrary to the 1995 Act and specifically alleging that there had been a failure to make reasonable adjustments. There was a significant delay in dealing with that grievance and the respondent accepts that it had no real explanation to put forward in this respect. A further complication emerged when the grievance hearing was finally arranged for 24 June and was heard by Mr John Wood who is based in England. Mr Wood normally deals with appeal hearings and assumed that this was another appeal hearing and that there had in fact been an earlier initial grievance hearing. He operated under this misapprehension and issued his decision upholding the decision to transfer the claimant to the cashier’s role on that rate of pay. The result was that the statutory grievance procedure had not been completed in that there had only been one hearing with no right of appeal offered to the claimant.
Relevant Law
28. Section 5 of the 1995 Act provides:-
“5-(1) For the purposes of this Part, an employer discriminates against a disabled person if:-
(a) for a reason which relates to the disabled person’s disability, he treats them less favourably than he treats or would treat others to whom that reason does not or would not apply; and
(b) he cannot show that the treatment in question is justified.
(2) For the purposes of this Part an employer also discriminates against a disabled person if:-
(a) he fails to comply with the Section 6 duty imposed on him in relation to the disabled person; and
(b) he cannot show that his failure to comply with that duty is justified.
29. Section 6 of the 1995 Act provides that:-
“6-(1) Where:-
(a) any arrangements made by or on behalf of an employer:-
place 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 arrangement or feature having that effect.
………………………………..
(3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1):-
(c) transferring him to fill an existing vacancy.
(d) altering his working hours.
(e) assigning him to a different place of work.
(4) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to:-
(a) the extent to which taking the step would prevent the effect in question;
(b) the extent to which it is practicable for the employer to take this step;
(c) the financial and other costs which would be incurred by the employer in taking this step and extent to which taking it would disrupt any of his activities;
(d) the extent of the employers financial and other resources;
(e) the availability to the employer of financial or other assistance with respect to taking this step.”
29. Paragraph 5.18 of the Disability Code of Practice, refers to the wording of the Act and in relation to the possibility of transferring a disabled person to fill an existing vacancy provides:-
“An employer should consider whether a suitable alternative post is available for an employee who becomes disabled (or whose disability worsens), and where no reasonable adjustment would enable the employee to continue doing the current job. Such a post might involve retraining or other reasonable adjustments such as equipment for the new post.”
Paragraph 5.20 of the code states:-
“As mentioned above, it might be reasonable for employers to have to take other steps, which are not given as examples in the Act. These steps could include:-
- conducting a proper assessment of what reasonable adjustments may be required;
- permitting flexible working;
- allowing a disabled employee to take a period of disability leave.”
30. The statutory changes introduced to give effect to EC Council Directive 97/80 and Council Directive 2000/78/AC, were analysed by the GB Court of Appeal in the case of Igen v Wong (2005) EWCA 142 and guidance for tribunals was set out in a series of 13 numbered paragraphs in that decision. The Northern Ireland Court of Appeal in McDonagh and Others v Royal Hotel [2007] NICA 3, confirmed that that guidance can be applied to all forms of discrimination and stated:-
“For the purposes of the present case the first question that the judge should have articulated was, “have the plantiffs proved on the balance of probabilities, facts from which I could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against them?”
Those guidelines were revisited and affirmed by the GB Court of Appeal in the case of Madarassy v Nomura International Plc [2007] EWCA CIB 33 on 26 January 2007. At paragraph 12 in that decision, the court stated:-
“I do not underestimate the significance of the burden of proof in discrimination cases. There is probably no other area of civil law in which the burden of proof plays a larger part than in discrimination cases. Arguments on the burden of proof surface in almost every case. The factual content of the cases does not simply involve testing the credibility of witnesses and contested issues of fact. Most cases turn on the accumulation of multiple findings of primary fact, on which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts. It is vital that, as far as possible, the law on the burden of proof applied by the fact-finding bodies is clear and certain. The guidance in Igen v Wong meets these criteria. It does not need to be amended to make it work better.”
The court went on to say at paragraph 54 that:-
“I am unable to agree with Mr Allen’s contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing the facts of the difference in status and the difference in the treatment of her.”
At paragraph 56, the court continued:-
“The court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which the tribunal “could conclude” that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”
At paragraph 57, the court continued:-
“Could conclude” in Section 63a(2) must mean that “a reasonable tribunal could properly conclude“ from all the evidence before it. This would include evidence adduced by the claimant in support of the allegation of sex discrimination such as evidence of the difference of status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint.
Decision
31. The claimant, when applying for employment with the respondent did not disclose that he had a chronic problem with low back pain which, by that stage, had been in existence for at least two years. He responded to direct questions in the application form and in the questionnaire, referred to above, denying the existence of any such problem. When this was put to him in cross-examination, his answer was that he knew that he could do the job and that it was not relevant. He also stated that he had been advised not to disclose the information or he would not get the job. In his grievance hearing, when this matter was put to him he stated:-
“No need to but if I had done so I would not have got the job.”
32. The tribunal concludes that the claimant deliberately concealed a condition, which he must have known would be relevant to his job application, for the purpose of obtaining that employment. This was a significant act of dishonesty on the part of the claimant and it is perhaps also significant that he appears to see nothing wrong in that dishonesty. The tribunal therefore, as indicated earlier, has significant doubts about the credibility of the claimant and, in relation to the trolley which was provided for his use on 30 August 2008, it prefers the evidence of the respondent.
33. The respondent accepts, and the tribunal accepts, that the claimant was disabled at all relevant times for the purposes of the act.
34. The claimant sought to argue that the respondent had been aware of this disability from 29 August 2008 when the claimant had indicated to Mr O’Gara, his line manager, that he would “prefer not to” do the ATM shift. The tribunal does not accept that argument. At that stage, Mr O’Gara knew nothing more than that the claimant had expressed a preference not to do a particular type of work because of a difficulty with his back. He had not been told and could not have been aware that the claimant had a long-standing chronic back problem for which he had received an MRI scan and physiotherapy. The claimant did not refuse to undertake the shift and carried out the shift without any further complaint. Mr O’Gara did ask the claimant whether he would be willing to have an examination by the respondent’s Occupational Health Physician but the tribunal concludes that was no more than the normal reaction of a manager in such a situation.
35. The tribunal accepts Mr O’Gara’s unchallenged evidence that he made efforts to find an alternative individual to perform the shift but that he was unsuccessful in doing so.
36. The tribunal concludes that the respondent first became aware of the claimant’s disability when it received the first medical report from Maitland Medical. A meeting with the claimant was held relatively promptly on 15 October and the claimant was immediately removed from CIT, and therefore ATM, duties on 16 October. He was placed on light duties at the same hourly rate until a further medical opinion was obtained with input from his GP and Physiotherapist.
37. When that second report was received, the claimant was offered other employment, albeit at a lower hourly rate.
38. While the claimant’s GP was more optimistic about the claimant’s prognosis than Maitland Medical, the respondent was, in the view of the tribunal, entitled to rely on the clear opinion expressed by Maitland Medical and was therefore entitled to conclude that the claimant was no longer fit to perform either CIT or ATM duties. What perhaps reinforced that view on the part of the respondent, was that the claimant launched separate civil proceedings alleging negligence on the part of the respondent in allowing the claimant to carry out the ATM shift on 30 August 2008. Those civil proceedings resulted in a payment to the claimant of £2,500.00. In those circumstances, and given the medical reports in the respondent’s possession, the respondent would have been extremely reckless if it had allowed the claimant to continue in CIT or ATM work. If there had been a further deterioration in the claimant’s medical condition, the respondent could rightly have anticipated further litigation. That litigation would have been extremely difficult to defend given the contents of the reports from Maitland Medical.
39. The duty to make a reasonable adjustment does include a duty to consider moving a disabled employee to another position. This is exactly what happened in the present case. The rate to be paid to an employee in those circumstances is the rate applicable for the new job. There is no statutory, or other, obligation on a respondent in those circumstances to continue paying an employee the salary applicable to the earlier post.
40. The tribunal therefore concludes that, in providing a lightweight, collapsible trolley on 30 August 2008, in transferring the claimant to temporary light duties pending the outcome of the second medical examination and finally in transferring the claimant to cashiers duties, the respondent had fulfilled its duty to make reasonable adjustments to assist the claimant to remain in employment.
41. It is not entirely clear on what other basis the claimant was pursuing a claim under the disability discrimination act. However the tribunal concludes that there are no grounds from which it could reasonably draw any inference of lawful discrimination against the respondent on the evidence before it.
42. The tribunal therefore dismisses the claim in its entirety.
Chairman:
Date and place of hearing: 31 August 2010, 1 September 2010, Belfast.
Date decision recorded in register and issued to parties: