Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2010/07417_09IT.html
Cite as: [2010] NIIT 7417_9IT, [2010] NIIT 07417_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 7417/09

CLAIMANT: William Samuel McDowell

RESPONDENT: J D Wetherspoon Plc

DECISION

The unanimous decision of the tribunal is that the claimant’s claims for disability discrimination and unfair dismissal are dismissed.

Constitution of Tribunal:

Chairman: Mr P Kinney

Members: Ms T Kelly

Mr N Wilkinson

Appearances:

The claimant appeared and represented himself.

The respondent was represented by Mr Boyd, Barrister-at-Law.

Issues

1. The issues to be determined were set out and agreed in the record of proceedings of a Case Management Discussion on 10 March 2010.

Disability Discrimination

(1) Whether the claimant is disabled within the meaning of the Disability Discrimination Act, namely:-

(a) Whether the claimant has an impairment that is either physical or mental;

(b) if so, whether the impairment has adverse effects which are substantial;

(d) if so, whether the long term substantial adverse effects are effects on normal day to day activities.

(2) In the context of the claimant’s complaint of direct discrimination on the ground of disability, whether the two individuals referred to in the claim form made the comments attributed to them.

(3) If so, whether those comments amount to a breach of the Disability Discrimination Act 1995.

(4) If so, whether those allegations are out of time.

(5) If so, whether time should be extended.

(6) In the context of the claimant’s complaint of Disability Discrimination by way of victimisation whether the claimant was dismissed because he raised a grievance which in itself referred to alleged breaches of the Disability Discrimination Act 1995.

(7) In the context of the claimant’s complaint that the respondent breached its duty to make reasonable adjustments, whether the respondent put the claimant at a substantial disadvantage in relation to hours of work, workload and nature of work and, if so, whether the respondent breached its duty to make reasonable adjustments by failing to reduce the claimant’s hours of work, by failing to provide counselling, by failing to give the claimant breaks and by failing to carry out a risk assessment on the claimant.

(8) Whether the claimant’s claim in respect of reasonable adjustments is out of time.

(9) If so, whether time should be extended.

Unfair Dismissal

(10) Whether the reason for the dismissal was the claimant’s misconduct as alleged by the respondent or the fact that the claimant had raised a grievance under the Disability Discrimination Act as alleged by the claimant.

(11) Whether the Statutory Dismissal and Disciplinary Procedure was followed.

(12) If the reason for the dismissal was misconduct, whether the dismissal was fair in all the circumstances of the case.

(13) Whether the claimant’s dismissal was consistent with the treatment of other employees in similar situations.

(14) If the dismissal was unfair, whether the claimant would nevertheless have been dismissed even if a fair procedure had been followed having regard to Article 130A (2) and the Polkey decision.

(15) If the dismissal was unfair, whether the claimant’s conduct contributed to it and, if so, to what extent.

Facts found

2. The claimant worked for the respondent as a grade 4 shift manager at the respondent’s premises at the Bridge House Belfast. He had been employed by the respondent for eight and a half years and at the date of termination of his employment his gross pay was £1,500.00 per month – nett pay £1,300.00 per month. The claimant started working in the Bridge House in 2008. Mr Barry McKervey was the bar manager at the time.

3. The claimant had previously worked in the respondent’s premises in Carrickfergus. In or about May 2008 he spoke to his area manager, Darren Niven, to seek a transfer to Belfast. The claimant had no issues with his employment or his management in Carrickfergus. However in May 2008 a new manager was put in place. The claimant was not happy with the nature of the work shifts he was given. As a result he requested a transfer to Belfast from Mr Niven. Mr Niven agreed to transfer the claimant to the Bridge House.

4. The claimant has depression and anxiety which was first diagnosed in 2007. He takes regular medication in relation to his condition. His symptoms include sleeplessness at night and at times becoming very nervous about his general situation. He was prone to take panic attacks and could feel physically ill. When pressed on how these matters affected his day to day activities he gave the example of being on a bus or a train or being in a crowded bar, when he would be on edge and could at times feel physically sick. He had on occasions been forced to either leave the bus or train or to step outside the bar into a quiet area to compose himself. The claimant, despite some questioning from the tribunal, was unable to provide any further information or detail as to how his condition impacted on his day to day life.

5. In May 2008 the claimant had returned after being off for two weeks and he told Mr Niven that he was feeling better after that leave. The claimant told Mr Niven at that time about his health issues. In his evidence the claimant contended that this was the first occasion on which the employer should have considered making reasonable adjustments, such as:-

(a) a referral to the occupational health department;

(b) a reduction in his working hours;

(d) a reasonable adjustment to the duties he was asked to perform.

The claimant renewed his request for assistance in August 2008. This was in a conversation with Mr Niven when he was being spoken to with regard to performance issues. The claimant accepted that there were performance issues and that the respondent, through the area manager and pub manager, had genuine concerns about his performance.

6. The next occasion on which the claimant raised his health issues was in March 2009. He had been late for work and he approached Mr McKervey to apologise. He told him that he had slept in and that his medication had an effect on his sleep. The claimant alleged that Mr McKervey then told him that if it was making him feel tired he should stop taking the tablets. Mr McKervey in his evidence denied making any such comment.

7. On 27 March 2009 Mr Niven was going to the pub to perform a pub cleaning check. He received a call from the claimant to say that he was unwell and wanted to be relieved of his duties for the day. Mr Niven told the claimant that if he could arrange cover for the day he could then leave. The claimant alleged that Mr Niven said that the claimant was not a grade 4 manager. Mr Niven in his evidence said that he had commented that the claimant was not performing as a grade 4 manager. The claimant again referred to his general health issues. Mr Niven was also made aware that the claimant was staying in a flat above the pub premises and he instructed the claimant not to stay in the flat.

8. On 31 March 2009 the claimant raised a grievance in which he complained that the company had failed in its duty of care and had not made reasonable adjustments. He also referred to the two comments made by Mr McKervey and Mr Niven. He further stated that he had been in touch with the Equality Commission as he felt the company had not followed the requirements of the Disability Discrimination Act. His grievance was acknowledged by Claire Taylor, the Regional Personnel Manager.

9. The claimant sent a further email to Ms Taylor on 2 April 2009 complaining that he had just had an investigation done relating to his opening of the pub on 27 March. He stated this had been done after he raised his grievance. He further said to Ms Taylor that he would contact his trade union representative and would also seek advice from his solicitor. He intended to make an appointment to go and see about taking the company to court for constructive dismissal.

10. Ms Taylor responded to this email to confirm that the investigation had actually been carried out before the claimant had lodged his grievance.

11. Thereafter there was again a conflict of evidence between the parties. Mr Niven in his evidence said that some two weeks later at a recruitment forum Ms Taylor approached him to say that she had just spoken to the claimant and that he had said he was withdrawing his grievance as he was simply having a bad day when he sent it. The claimant said he did have a conversation with Claire Taylor on that day but his reference to having a bad day was a reference to the email of 2 April 2009 and not to his grievance. He said that Ms Taylor in that conversation told him that she would arrange a grievance meeting within the following two to three weeks. Whether there was a genuine confusion about what transpired, the grievance did not progress. The respondent took no further steps in relation to the grievance. However the claimant also took no further steps on foot of the grievance. He described his relationship with Ms Taylor as good. He did not make any attempts to contact her.

12. The claimant contended in his evidence at hearing that Mr Niven repeated comments about his suitability for grade 4 management in the period from April 2009 until his dismissal in November 2009. This matter had not been raised previously by the claimant in the course of the preparation of the hearing nor in the answer to the respondent’s request for additional information. Mr Niven in his evidence denied that he made such comments. However, it is clear that there were performance issues involving not just the claimant but also other members of staff in the Bridge House. Mr Niven accepted that at times he did address the claimant on general performance issues. He characterised these performance issues as minor and said that they were held in common with other members of staff.

Dismissal

13. On 20 October 2009 Mr McKervey was notified by the respondent’s Personnel Department that the alarm on the pub had been reset at 3.30 am on 5 October 2009. There are two different types of alarm call. The first is where there is essentially a false alarm in that the alarm goes off and is reset by the appropriate key holder. A second type of alarm is where the alarm has been switched off by a key holder and switched on again. In those circumstances the central monitoring office notifies the respondent’s personnel and audit department who in turn will notify the area manager and the manager of the premises concerned.

14. On being notified Mr McKervey checked the CCTV footage which showed that the claimant had reset the alarm. Perusal of the CCTV coverage also alerted Mr McKervey to possible breaches of the company’s drinking after work and cash control policies. The respondent allowed a limited drinking after work. It was confined to employees working until the bar was closed and they were permitted to stay for a drink only for two and a half hours after time was called. A maximum of two drinks could be consumed which had to be paid for during licensing hours. Money could not be left at the bar for additional purchases. The employee handbook specifically states that it is not acceptable for employees to return to the pub for a drink after closing time or at all and under no circumstances is anyone who is not an employee of the company permitted to stay in the pub for a drink. The handbook states that failure to comply with these requirements will be regarded as gross misconduct and may result in summary dismissal.

15. As a result of his initial observations Mr McKervey held investigation meetings with other members of staff. These investigations revealed that the claimant, on 4 October 2009, had closed the bar, left the premises and then returned to the bar, obtained alcohol and put money in the till. The claimant and his companion then let themselves in to the onsite flat accommodation and slept there overnight. Mr McKervey’s investigations also revealed two other occasions when the claimant had invited others to drink alcohol in the company accommodation. These included employees who had not been present in the pub at the closing and also one non-employee.

16. On 21 October 2009 Mr McKervey held an investigation meeting with the claimant in which the claimant accepted that he had broken the drinking after work policy and that he had allowed employees and a non employee to enter the company accommodation, drink alcohol and stay the night without authorisation. The claimant also acknowledged that he had been previously instructed by the area manager not to stay in the onsite accommodation. The following day Mr McKervey suspended the claimant on full pay pending further investigation.

17. The disciplinary proceedings were conducted by Mr Philip Annett, who was the manager of another of the respondent’s premises in Lisburn. The claimant was invited to a disciplinary hearing on 30 October 2009. The letter set out the allegations he faced and warned that he could face summary dismissal. The letter also informed the claimant that he could be accompanied at the meeting and enclosed evidence supporting the allegations including copies of all the investigation minutes. Mr Annett in conducting the meeting firstly reviewed all the evidence and information.

18. The claimant again confirmed that he had been instructed not to stay in the company accommodation but he did so in any event. He admitted inviting others back to the premises as set out previously. The claimant understood that what he did was wrong and that he had put the pub licence in jeopardy and accepted that the incidents occurred as alleged. The claimant then told Mr Annett that he suffered from anxiety and depression and took medication for these conditions. He also confirmed that he had a drinking problem. Mr Annett considered this information might be mitigating so he explored it further. The claimant also informed Mr Annett at this stage that he had raised a grievance on 31 March 2009. Mr Annett adjourned the disciplinary hearing to speak to Mr McKervey. Mr Annett himself spoke on an informal basis to members of the Bridge House staff to determine the general conduct of matters in the pub and also instructed Mr McKervey to make further investigations on the matters raised. Mr Annett contacted the personnel department in relation to the claimant’s grievance. He was informed that the grievance had been withdrawn.

19. Mr Annett reconvened the meeting and communicated his findings to the claimant. The claimant stated that other staff breached the drinking after work policy. Despite requests from Mr Annett the claimant did not offer names, dates or any other evidence. Mr Annett confirmed that he would have been prepared to look at CCTV or other records had he been given names or dates from which to work. Mr Annett adjourned the hearing again and asked Mr McKervey to reinvestigate the claimant’s allegation into the fact that others were drinking after work. Mr Annett received further witness statements from other managers and also confirmed the status of the claimant’s grievance again. Mr Annett reconvened a disciplinary hearing and informed the claimant that his information was that the grievance had been withdrawn. The claimant denied this. Mr Annett asked the claimant whether he would have raised the issue of the grievance if he had not been in a disciplinary hearing and the claimant said he would not have. Mr Annett showed the witness statements collated which confirmed that the drinking after work policy was adhered to and that only the claimant was known to breach it. The claimant said these statements were untrue but did not provide any further details in the form of names or dates to allow further investigation.

20. Mr Annett adjourned the disciplinary hearing once again and on reconvening it informed the claimant that it was his decision to summarily dismiss the claimant. The claimant was informed of his right of appeal. Mr Annett then separately spoke to the claimant to help him resolve the grievance if he believed it to be outstanding. Mr Annett offered to set up a grievance hearing. The claimant said he wished to leave that for another date.

The applicable law

Disability discrimination

21. A person has a disability for the purposes of the Disability Discrimination Act 1995 if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. (Section 1 of the Disability Discrimination Act 1995). The tribunal should concentrate on what the claimant cannot do or can only do with difficulty, rather than look at what the claimant can do.

22. An employer directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances are the same or not materially from, those of the disabled person. (Section 3A of the Disability Discrimination Act 1995)

23. An employer is under a duty to take such steps as are reasonable to prevent any provision, criterion or practice or on his behalf, or any physical feature of the employer’s premises from placing a disabled person at a substantial disadvantage in comparison to people who are not disabled. (Section 4A of the Disability Discrimination Act 1995)

24. A person ‘A’ discriminates against another person ‘B’ if he treats ‘B’ less favourably than he treats or would treat other persons, whose circumstances are the same as ‘B’s’, and does so by reason that ‘B’:-

(a) brought proceedings against ‘A’ or any other person under the Disability Discrimination Act;

(b) gives evidence or information in connection with such proceedings brought by any person;

(c) otherwise does anything under or by reference to the Disability Discrimination Act in relation to ‘A’ or any other person;

(d) alleged that ‘A’ or any other person has contravened the Disability Discrimination Act.

(Section 55 of the Disability Discrimination Act 1995)

25. A person may present a complaint to an industrial tribunal within three months from the time the act complained of was done. Any act extending over a period shall be treated as done at the end of that period. The tribunal will assess whether the individual allegations constitute an act extending over a period or are to be treated as a series of discrete events. The tribunal has a discretion to extend time if, in all the circumstances of the case, it considers it just and equitable to do so.

Dismissal

26. Where an employee has been dismissed, it is for the employer to show that the reason for the dismissal is a potentially fair reason. (Article 130 of the Employment Rights (Northern Ireland) Order 1996) One such reason is misconduct by the employee. If the employer establishes the reason, the tribunal will determine whether the dismissal is fair or unfair in the circumstances having regard to equity and the substantial merits of the case (including the size and administrative resources of the employer). The tribunal should consider if the employer’s decision to dismiss falls within the band of reasonable responses to the employee’s conduct which a reasonable employer could adopt. However, the tribunal should not substitute its own view for that of the employer.

27. A dismissal will be automatically unfair if a statutory dismissal procedure set out in the Employment (Northern Ireland) Order 2003 applies to the dismissal, the procedure has not been completed, and the non-completion is wholly or mainly attributable to failure by the employer to comply with its requirements.

The tribunal’s conclusions

Disability claims

28. The claimant makes two claims for disability discrimination. The first is based on a breach of the employer’s duty to make reasonable adjustments. This arose, on the claimant’s evidence, in May 2008 and continued into August 2008. The claimant also alleges that the comments made by Mr McKervey and Mr Niven constitute direct disability discrimination. These were made in March 2009.

29. The claimant also gave evidence that Mr Niven continued his comments from April 2009 through to the ending of his employment in November 2009. However, Mr McDowell first made this case in giving his evidence to the tribunal. He did not raise it at an earlier stage in the process of preparing for the hearing and in particular did not make these allegations when he was providing his answers to the respondent’s Notice for Additional Information. The allegations that the comments continued were diffuse and lacked any detail. Mr McDowell could not tell us the nature of the comments made, the context in which they were made or the time in which they were made. Any comments made that he could refer to appeared to be in the context of performance issues raised by Mr Niven. It is clear to the tribunal that there were considerable performance issues in the Bridge House involving not just the claimant but also his colleagues. These all appear to have been of a relatively minor nature and something being regularly monitored by the area manager. There is insufficient evidence for the tribunal to conclude that there were any comments which could form the basis of a continuing act of discrimination.

30. Both of the alleged discriminatory matters therefore fall outside their respective time limits. In dealing with the request to extend time the tribunal took into account the claimant’s explanation or lack of explanation for not bringing the case within time. The claimant made it clear that he had access to advice and information as he had contacted the Equality Commission, the Labour Relations Agency, and had referred to speaking to his trade union representative and to his solicitor about his employment rights. He also acknowledged that he had received paperwork and documentation from the Equality Commission and had read about time limits in that paperwork. When directly asked as to why he had not presented his claim for reasonable adjustments or direct discrimination within the applicable time limits, the claimant simply said that he could not give an answer to that. In those circumstances it is the unanimous conclusion of the tribunal that it is not just and equitable to extend the time for the making of these claims. In any event, the tribunal also considered the nature of the claimant’s illness and in particular whether or not the claimant’s illness constitutes a disability. In this regard the tribunal concentrated on whether or not there were long term substantial adverse effects on normal day to day activities. The tribunal, despite making a request of the claimant, was unable to gain any evidence from the claimant as to the substantial impact on normal day to day activities. He appeared in general to be able to conduct his work, gave no evidence of any other impact on day to day activities and confined his evidence to his adverse reaction to some trips on a bus or a train or indeed to his workplace when it was particularly crowded. In those circumstances the tribunal is not satisfied that the claimant has a disability within the meaning of Section 1 of the Disability Discrimination Act 1995.

Victimisation claim

31. The claimant’s claim for victimisation is that he was dismissed because he raised a grievance which in itself referred to alleged breaches of the Disability Discrimination Act 1995. To succeed in this claim the claimant must establish a causal connection between the protected act and the detriment. In this case the tribunal is not satisfied that the claimant has established any such causal link. The claimant lodged a grievance on 31 March 2009. The respondent, rightly or wrongly, considered that that grievance had been withdrawn some two weeks later. The claimant, despite clearly being aware of his statutory and employment rights, and having expressed himself in those terms previously, took no steps to follow up on his grievance whatsoever. He confirmed that he had a good relationship with the then regional personnel manager, Claire Taylor. He made no attempt to contact her formally or informally. Despite what he regarded as ongoing incidents after April, he made no attempts to establish whether or not his grievance was still active. The claimant’s evidence was inconsistent as to whether or not a meeting for the grievance had been arranged. In his evidence the claimant told the tribunal that Claire Taylor had a discussion with him in which she said she would arrange a meeting within the next two to three weeks. However, in his disciplinary meeting with Mr Annett the claimant said that no such grievance meeting had been agreed or was being arranged. As the claimant has not established a causal link between the protected act and the detriment his claim for victimisation fails.

Unfair dismissal claim

32. The respondent maintains that there was a potentially fair reason for his dismissal namely misconduct. The claimant has accepted the misconduct in question. The claimant has also accepted in his evidence the serious nature of the misconduct and the fact that the pub’s license was potentially endangered by his actions. He was aware of the consequences the loss of a licence could entail.

33. The tribunal find that the statutory dismissal and disciplinary procedure was followed.

34. The tribunal is satisfied that it was appropriate for Mr Annett to conduct the disciplinary process. We were impressed by the evidence given by Mr Annett and the care and attention he gave to the process. There was no evidence either before the tribunal or before Mr Annett when he conducted his disciplinary process that there were other employees who were treated in a manner inconsistent with the claimant. Indeed Mr Annett confirmed that should others have been before him facing the same charges in the same circumstances as the claimant, they would have been treated in the same way. Although the claimant made allegations that others behaved in a similar way to him, these assertions were not supported by any evidence either from the claimant or from others. The claimant did not provide any further information to Mr Annett at the time that he was conducting his disciplinary process and we consider that the investigations made by Mr Annett were reasonable in all the circumstances. The decision to dismiss the claimant was within the range of reasonable responses open to a reasonable employer and we find that there was no unfair dismissal. It is the unanimous decision therefore of the tribunal that the claimant was not unfairly dismissed.

Chairman:

Date and place of hearing: 5 – 7 July 2010, Belfast

Date decision recorded in register and issued to parties: