Industrial Tribunals Northern Ireland Decisions

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Cite as: [2010] NIIT 1288_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1288/10

CLAIMANT: Andrew Brown

RESPONDENT: Royal Mail Group Ltd

DECISION

The unanimous decision of the tribunal is that the claim is dismissed.

Constitution of Tribunal:

Vice President: Mr Noel Kelly

Members: Mr Norman Wilkinson

Mr James E Martin

Appearances:

The claimant appeared in person and was not represented.

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

Issue

1. The issue for the tribunal to determine is:-

“Whether the respondent had discriminated against the claimant by failing to make reasonable adjustments, on account of the claimant’s disability, in the operation of its managing attendance procedure, and in particular, by issuing warnings to the claimant under that procedure, contrary to the Disability Discrimination Act 1995.”

Relevant findings of fact

2. The claimant started work with the respondent in February 2001 and remains in that employment. At all relevant times he was employed as a delivery officer in the Newtownards Delivery Office engaged in general duties involving the sorting and delivery of post.

3. The respondent accepted that at all relevant times the claimant suffered from diabetes and properly conceded that the claimant’s medical condition was a disability for the purposes of the 1995 Act.

4. The respondent’s managing attendance procedure provided for the following:-

First Stage

At this stage you may be issued with a First Stage Warning should you incur 4 absences or 14 days in any 12 month period. If, during the next 12 months, you continue to meet the required standard of attendance, you will be removed from the procedure.

Second Stage

If, after you have been issued with a First Stage Warning, you incur a further two absences, or a single absence of 10 days or more, within any 6 month period during the 12 months following the date of interview, a Second Stage Warning may be issued. If, after you have been issued with a Second Stage Warning, you incur no more than 1 absence of 4 days or less, during the next 12 months, you will be removed from the procedure. If at the end of the next 12 months after you have been issued a Second Stage Warning, your absence record is such that you have incurred less than 2 absences, or a single absence of less than 10 days within any six month period, but you have incurred more than one absence of four days in the 12 months, you will be reverted to the First Stage of the procedure for a further 12 months. If, during the 12 months from the date that you have been reverted to the First Stage you incurred 2 absences or a single absence of 10 days or more, within any six month period, you may be issued with a further Second Stage Warning.

Dismissal

If, after you have been issued with the Second Stage Warning, you incur a further two absences, or a single absence of 10 days or more, within any six month period during the next 12 months, your dismissal will be considered.

5. The claimant underwent a surgical procedure in July 2008 and, as a consequence, was absent from work on sick leave for a period of 46 days from 23 July 2008 to 5 September 2008. This absence triggered Stage 1 of the procedure. The claimant stated in evidence that he was not saying that anything had been wrong with the application of Stage 1 in these circumstances. However, he stated that he had been told by a doctor, in the course of a telephone call, that the medical condition which had necessitated the surgical procedure may have been contributed to by his diabetes. However, this was not ‘definite’. The claimant produced no medical evidence to establish any link between that surgical procedure and diabetes and it would seem that no medical evidence to that effect has ever been produced by the claimant to the respondent.

6. The claimant received a Stage 1 Warning in accordance with the managing attendance procedure. He continued to work for the respondent.

7. The claimant was again on sick leave from 11 February 2009 to 14 February 2009 for a period of four days with a chest and throat infection.

8. The claimant alleged that he would have completed a separate self-certificate form, ie a form which was different from that produced by the respondent to the tribunal. The respondent’s witness, Mr Hutton, the delivery sector manager with the responsibility for Newtownards, gave clear evidence that a separate form was not necessary. In any event, the claimant accepted that he had completed and signed a Royal Mail Group form entitled ‘Employee Absence Declaration’ on 17 February 2009. That declaration stated, above the claimant’s signature, that the employee confirmed that the information given above was accurate and complete. That information included the reason for the absence which in this case was ‘chest and throat infection’. There was no indication that the claimant’s diabetes had been a contributory factor.

9. The claimant was then on sick leave again from 10 June 2009 to 20 June 2009 with chickenpox. That absence triggered Stage 2 of the attendance procedure. The claimant submitted a GP’s certificate dated 19 June 2009 in relation to that absence. That certificate gave the diagnosis as ‘chickenpox’. There was no mention of diabetes. Again the claimant completed and signed an Employee Absence Declaration on 22 June 2009 which gave the reason for the absence as chickenpox. There was no mention of diabetes in this declaration.

10. Those two absences automatically generated an e-mail which was sent to the claimant’s line manager, Mr Wilson. Mr Wilson, in accordance with normal practice, then wrote to the claimant on 24 July 2009 stating that he was:-

“Considering if it is appropriate to issue you with a Stage 2 Warning.”

Mr Wilson invited him to an interview on 23 July 2009 and stated:-

“The discussion will give you every opportunity to explain the reasons for your absence and any other circumstances which may be affecting your attendance.”

11. During the interview, the claimant argued that the absence for the chest and throat infection from 11 February 2009 to 14 February 2009 was related to his diabetes. He did not, in the course of his interview, suggest that diabetes had in any way caused or contributed to his absence from 10 June 2009 to 20 June 2009 for 10 days with chickenpox.

12. He was given a Stage 2 Warning on 24 July 2009. It stated that:-

“Since your First Stage Warning, you have incurred two sick absences, totalling 14 days during the period of 11 February 2009 to 20 June 2009, which is in excess of the Stage 2 standard of two absences or 10 days in any six month period in the 12 months after your Stage 1 Warning was issued. I have carefully considered what was said at the interview, but I have decided that a Second Stage Warning is appropriate in the circumstances. My reasons for taking this decision are the amount of absence over the agreed standards and to highlight the improvements required to avoid further action under the attendance procedure.”

13. The claimant was again on sick leave for four days from 22 January 2010 to 25 January 2010 after becoming ill with raised glucose levels at work. This absence did not, on its own, trigger Stage 3 (ie the dismissal stage) of the managing attendance procedure.

14. The claimant was again on sick leave for one day on 1 April 2010 with a bout of diarrhoea. The claimant accepted that this was a ‘bug’ which was ‘going round his house’ and he stated he was not arguing that it was caused by his diabetes. Later medical evidence (see Paragraph 17) suggested that his diabetes might make him more susceptible to a range of infections but the information was not available to the respondent until 24 April 2010.

15. This absence, together with the earlier absence in January, triggered Stage 3 (the dismissal stage) of the procedure and the respondent referred his case to Atos Healthcare for a medical report. The claimant was telephoned by a member of Mr Hutton’s staff when he was on annual leave in early April 2010. The claimant was asked to permit Atos to access his GP’s notes and he was told that he was ‘under consideration’ under Stage 3 of the managing attendance procedure.

16. The claimant gave evidence that he was extremely upset, ie ‘devastated’ by this telephone call. He stated that he felt that the respondent was ignoring its duties under the Disability Discrimination Act.

17. Atos reported on 24 April 2010 and stated:-

“He has had several absences due to his diabetes since 2005, 1^st to 5^th November 2005, 25^th of January to 2^nd of February 2008 and 22^nd to 25^th of January 2010. However, his diabetes would make him more susceptible to infection so any absence due to infections could be related to but not caused by his diabetes. These include his absences for chickenpox, chest infection and diarrhoea. His diabetes is likely to be covered by the DDA.”

18. The claimant was invited to an interview with Mr Hutton on 6 May 2010. That interview had to be re-scheduled twice; once because the claimant was on annual leave and once because Mr Hutton was called away on urgent business. The interview was eventually held on 25 June 2010. Mr Hutton advised the claimant that, having considered his submission and the medical evidence that had been supplied by Atos Healthcare, he was not going to proceed under Stage 3 to consider dismissal. In fact, he told the claimant that he was rescinding the existing Stage 2 Warning and reinstating the Stage 1 Warning. The claimant asked for a formal written decision and this was supplied on 17 August 2010.

Relevant law

19. Section 18B of the Disability Discrimination Act 1995 provides that:-

“(1) Where –

(a) a provision, criterion or practice applied by or on behalf of an employer, or - 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 or practice, - having that effect.”

20. In Royal Liverpool Children’s NHS Trust v Dunsby [2006] IRLR 351, the Employment Appeal Tribunal held that:-

“The Disability Discrimination Act does not impose an absolute obligation on an employer to refrain from dismissing an employee who is absent wholly or in part on grounds of ill-health due to disability. An employee may take into account disability-related absences in operating a sickness absence procedure. It is rare for a sickness absence procedure to require disability-related absences to be disregarded. Whether by taking disability-related absences into account, the employer acts lawfully will generally depend on whether the employer is justified.”

21. Section 17A(1) of the Act provides that where a claimant proves facts from which the tribunal could, apart from that sub-section, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act. The EAT in Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 suggested that in a reasonable adjustments case, the burden of proof will shift if an adjustment could reasonably have been made and it would then be up to the employer to show why it had not been made.

22. The Employment Appeal Tribunal in the case of Project Management Institute v Latif [2007] IRLR 579, when dealing with a reasonable adjustment case concluded that:-

“The paragraph in the DRC’s Code is correct. The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably have inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing substantial disadvantage envisages the duty but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made. That is not to say that in every case the claimant would have to provide the detailed adjustment that would need to be made before the burden would shift. It would, however, be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage that the question of whether it could be reasonably be achieved or not.”

23. The Code of Practice issued by the Equality Commission provides at paragraph 5.8 that the duty to make reasonable adjustment applies to contractual arrangements and working conditions. Paragraph 5.11 states that substantial disadvantages are those which are not minor or trivial.

24. In relation to the shifting burden of proof, the Code provides at paragraph 4.43 that:-

“To prove an allegation that there has been a failure to comply with the duty to make reasonable adjustments, an employee must prove facts from which it could be inferred in the absence of an adequate explanation that such a duty has arisen and that it has been breached .If the employee does that the claim will succeed unless the employer can show that it did not fail to comply with its duty in this regard.”

Decision

25. The claimant alleged in the course of his evidence that his line manager in Newtownards had on one occasion in January 2010, been dismissive of his disability and had stated something along the lines of “it means nothing to me – get back to work”. That allegation did not appear in the claim form and was not mentioned in the subsequent Case Management Discussion or in the agreed list of legal and factual issues. The tribunal therefore disregards this evidence since it would be unfair to expect the respondent at this late stage to deal with what could be, in effect, an allegation of harassment and therefore a substantial amendment to the claim.

26. The claimant did not produce any medical evidence to establish a link between the surgical procedure and the consequent sick leave absence which led to his Stage 1 Warning under the managing attendance procedure and his disability. The tribunal notes that he did not seek to challenge the fairness of this warning in any internal procedure or before the tribunal. The tribunal concludes that the actions taken by the respondent in this respect were justified and proportionate. Furthermore, since there was no evidence of a link between the relevant absence and the claimant’s disability, the respondent was not under any duty to make reasonable adjustments under the 1995 Act.

27. The substance of the claimant’s case appears to have been that the Stage 2 Warning should never have been issued and that the employer should have made its own enquiries into the extent of the claimant’s disability and into whether or not any particular absence might have been caused or exacerbated by his disability. It has to be remembered that the claimant, during the Stage 2 interview with his line manager, submitted only that the absence as a result of the chest and throat infection was disability-related. The claimant made no such suggestion in relation to the absence with chickenpox. It would, in the opinion of the tribunal, have been expecting far too much of any reasonable manager to have gone beyond what was brought to his attention by the claimant in these circumstances and to have undertaken further medical investigations at that stage. It also has to be noted that the 10 day absence with chickenpox would, on its own, have been sufficient to trigger Stage 2 of the managing attendance procedure and to result in the consideration of a warning. In any event, the line manager, on the information before him, was considering a history of three relevant absences, of which only one had been identified (the chest and throat infection) by the claimant as being possibly disability-related.

28. As the EAT stated in Dunsby (see above), an employer is not obliged to disregard disability-related absences when applying a managing attendance procedure and an employer can dismiss an employee for disability-related absences. The question is whether or not the employer’s actions in the circumstances of each case are justified. Mr Hutton gave evidence of the need for the respondent as a large employer to exercise control over the rate of sickness absence and to operate the managing attendance procedure with that objective in mind. In those circumstances, the tribunal is satisfied that the issue of the Stage 2 Warning was justified in the circumstances at that time and on the evidence reasonably available to the line manager at that time.

29. The Stage 3 process was triggered by two absences; one which the claimant accepted might not be related to the claimant’s disability and one which clearly was related to that disability. The respondent, quite properly, sought further medical evidence before deciding whether or not to proceed to dismissal or to take any other action. It cannot reasonably be argued that it was wrong for the employer to take that step and to seek the claimant’s permission for Atos Healthcare to access his GP’s notes as part of that process.

30. Mr Hutton, at the end of the interview with the claimant, considered both the Atos medical report and the claimant’s submissions. He chose to remove the absences in relation to the chest and throat infection and in relation to chickenpox from the equation and to revert the claimant to a Stage 1 Warning. To avoid further delay and uncertainty he told the claimant of his decision immediately.

31. The claimant’s complaint, apart from the issuing of the Stage 2 Warning, therefore appears to be that he was upset by the telephone call which he received seeking his permission for Atos to access his GP’s notes and advising him that he was being considered under Stage 3 of the managing attendance procedure.

32. There can be nothing unlawful in an employer applying a reasonable managing attendance procedure and in considering an employee, including a disabled employee, under that procedure. As indicated above, employees with a disability are not excluded from such procedures. The tribunal is satisfied that Mr Hutton considered all the relevant evidence and that his actions were justified in relation to the claimant.

33. The claims of unlawful discrimination on the ground of disability is therefore dismissed.

Vice President:

Date and place of hearing: 18 November 2010, Belfast

Date decision recorded in register and issued to parties: