Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

                                                                                       CASE REF: 6112/09

CLAIMANT:                             Steven McNeill  

RESPONDENT:                       Ian McMaster T/A Chipmaster                                                                                                                      

 

 

DECISION

The decision of the Tribunal is that the claimant is awarded  notice pay in the sum of £190.00.

 

The Tribunal also finds that the claimant is disabled and by reason of the fact that the respondent failed in his duty to make reasonable adjustments in accordance with his statutory obligations awards the claimant the sum of £1,250 in respect of injury to feelings together with interest thereon at the rate of 8% from 17 June 2008 until the date of this decision.

 

The claim in so far as it related to unlawful sex discrimination and disability related discrimination is dismissed.

Constitution of Tribunal:

Chairman:                              Mrs A Wilson

Panel Members:                      Mr W Irwin

                                               Mr R J Hanna

Appearances:

The claimant appeared in person and was unrepresented.

Mr Ian McMaster appeared and was unrepresented.

At the outset of the hearing the respondent confirmed that the correct title  for  the respondent is Ian McMaster T/A Chipmaster and the Tribunal direct that the title to these proceedings is amended accordingly.

THE ISSUES

1.     Is  the claimant disabled within the meaning of the Disability Discrimination Act 1995 and if so was he disabled at all  times relevant to these proceedings?

2.     If the claimant was so disabled did the respondent:-

 

(a)        fail in his duty to make reasonable adjustments  contrary to  the Disability Discrimination Act 1995?

 

(b)        unlawfully discriminate against the claimant for a disability related reason in dismissing him or in the manner in which he  was dismissed.

 

3.     Was the claimant dismissed for gross misconduct in circumstances where the respondent was entitled to dismiss him without notice? If not what amount is due to him in respect of notice pay?

 

4.     Did the respondent unlawfully discriminate against the claimant on the grounds of his sex contrary to the Sex Discrimination (Northern Ireland) Order 1976?

Sources of Evidence

5.     The Tribunal considered the claim form, the response, documents handed in and referred to by the parties including transcripts of recorded conversations between the parties, the oral testimony of the claimant, of Mr Ian McMaster and of Mrs Laura McMaster  and the submissions of both parties.

Findings of relevant fact:-

6.     The respondent is a small family business engaged in the preparation and packaging of vegetables for sale, including the preparation and packaging of potato chips and batoned carrots.

 

7.     The respondent set up in business in or around 2000 and received help and support from a mentor through Invest Northern Ireland. This mentor helped in the preparation of employment contracts and the respondent relied upon him in relation to employment matters generally.

 

8.     The respondent employed 11 employees at all times relevant to these proceedings. The workforce was balanced in terms of gender comprising 6 women and 5 men.

 

9.     The claimant was employed by the respondent as a production operative from 22 May 2008 until his dismissal on 31 March 2009 following which his position was filled by a male.

 

10.   When applying for employment with the respondent the claimant completed an application form giving details of his work history and identifying referees. In giving these details  the claimant specified that he had worked for a firm called Camden Frames for a period of some ten months and that he left because he was moving house. The respondent did not take up references prior to the commencement of employment and it came to his attention shortly before the claimant was dismissed that, in fact, the claimant had worked with Camden Frames as an agency worker rather than an employee, for a period of just three months and left due to sick absence.

. 

11.   The application form completed by the claimant contained a warning in the following terms:-

        "Any candidate found to have knowingly given false information, or to have willingly suppressed any material fact will be liable to disqualification, or if appointed, to dismissal".

 

12.   The application form also included a health declaration. The claimant did not disclose any health related difficulties in his application and in particular answered “no” to the question "Do you have any difficulties which need to be assessed in accordance with your application?"

 

13.   In the course of his employment the claimant was required to carry out a number of duties including the peeling and preparation of potatoes and vegetables, opening bags of potatoes and vegetables, packing chips and vegetables, washing equipment and cleaning floors by hosing them down. These duties were required of all production operatives. The claimant had also, on one occasion, been asked to operate a forklift  despite the fact that he had no licence or training and he did so resulting in damage to the respondent’s property. The claimant received a warning in respect of this incident and it is the respondent’s case that given the damage caused, there was no point in training the claimant in the proper and legal use of the forklift.

14.   The claimant was paid an hourly rate of £5.73 amounting to £190.00 net per

week. It is his case that he received his pay on a weekly basis in a plain brown envelope in circumstances where all other employees received their pay in envelopes recording pay details. In contrast it is the respondent’s case that all employees, including the claimant, had at all times their pay details noted on their envelopes. The claimant produced samples of the envelopes he received. In circumstances where the respondent is adamant that pay was never given in a plain envelope and the claimant has produced a number of such envelopes the Tribunal cannot accept the respondent’s later explanation that this related specifically to a time when his daughter was responsible for pay and the claimant was on sick leave.

 

15.   The claimant at all material times suffered from soreness in his right elbow to the extent that he was unable to extend it. This caused him pain and discomfort particularly when peeling potatoes because this involved working with his arm bent over a period of some 3 to 4, and on occasion 5 hours. It is the claimant's case that it did not affect any of the other duties required of him such as lifting bags of chips and tying them or preparing carrots. However when peeling potatoes he admits that his output was poor in comparison with other workers including Mrs McMaster who suffers from carpal tunnel syndrome and arthritis. The claimant also suffered from pain in his left leg but there is no evidence before the Tribunal that this affected his work in any way or that it is an issue in these proceedings.

 

16.   It is the respondent's case that the claimant was slow in carrying out all his duties and on the balance of probabilities the Tribunal find this to be the case. The Tribunal accept the respondent’s evidence (which is corroborated by a transcript of a recorded conversation between the parties on 2 February 2009) that on one occasion he watched the claimant hosing down the floor and noticed him to be slow to the extent that the work would not have been completed had his colleagues not come to his assistance.

 

17.   Furthermore the respondent had noticed that the claimant worked at a slower pace than the other employees and in particular had noticed that when bagging chips the claimant worked using one hand only whereas all other workers used both hands. 

 

18.   The respondent spoke to the claimant regularly about his poor performance and  it is his case that he had  given him verbal warnings about the "lack of speed at his work" on 17 June 2008 and  about his “poor work rate” on

        30 October 2008. The claimant denies receiving a warning on 30 October 2008. The Tribunal make no finding as to whether such a warning was given because the written evidence produced is not compelling. It is recorded on plain paper, bears no acknowledgement of the claimant having received it and is undated. However the Tribunal is satisfied  that the respondent was generally unhappy with the volume of work produced by the claimant .

 

19.   The respondent made no effort to either extend the claimant’s probationary period  as he was entitled to do in accordance with the employment contract or to terminate the contract at the end of the probationary period as he was similarly entitled to do.

 

20.   When speaking to the claimant about his work, the respondent regularly commented that women were faster workers than men. This upset the claimant and as a consequence he began to record his conversations (as referred to at paragraph 16 above) with the respondent in circumstances where the respondent was unaware that he was being recorded.

 

21.   The first such recorded conversation took place in or around 2 February 2009. It is clear from the transcript of the conversation that on this occasion the parties discussed the claimant's medical condition, that the claimant disclosed to the respondent the fact that when peeling potatoes he could not straighten his arm, that he had been to hospital and had been told that he had swollen tendons the cause of which was not certain but may be related to weight training, that he had to go back to the doctor and  that he had been advised that the swelling should go down and that there shouldn't be a problem with work. The Tribunal find that this was the first occasion that the parties discussed the claimant’s medical condition and the first time that the respondent became aware with certainty of it.

 

22.   It is also clear from the transcript  that the respondent, having noticed the claimant's condition and the effect it was having on his work  was concerned that  the claimant's reduced output was adversely affecting his profit margin which was already tight. The respondent suggested to the claimant that he may be better suited to other work such as work in a security firm and expressed concern that the claimant as a young man "did not want to be disabling himself."

        The respondent also remarked that “…women are probably faster than men at that job down there...probably do more with their hands to start with…your arm is not doing us any favours now.”

 

23.   At the end of the conversation the respondent suggested that the claimant take the following two days off to enable him get an appointment with his doctor to see what the doctor had to say commenting as follows:-

        “stay off Tuesday and Wednesday, we wouldn’t want you to be disabling yourself.”

 

24.   Following that conversation the claimant was absent from work on medically certified sick leave until the date of his dismissal. His medical certificates recorded "tennis elbow" as the reason for the absence.

 

25.   The claimant did not receive any sick pay during his absence and  contacted the respondent by telephone in or around mid March to enquire as to the position regarding his pay. The telephone conversation was recorded  by the claimant and a transcript admitted in evidence. It is clear from the typed transcript that the respondent asked the claimant to call back later in the week indicating that there was a problem with the claimant's job application form.

 

26.   The claimant contacted the respondent again by telephone the following week and was dismissed in the following terms "I would only be wasting your time getting you to come over tomorrow, I won't have a job for you anymore”. The respondent indicated that the reason for the dismissal was the fact that the claimant had lied in his job application form and the respondent was particularly concerned with the fact that the claimant had not declared that he had been working with Camden Frames as an agency worker rather than as an employee. There was no mention of the allegation that the claimant had worked for a lesser period than that declared or that he had lied in relation to the reason for leaving. An undated confirmation of dismissal was subsequently issued to the claimant in the following terms:-

        “As you have given us false information on your application form regarding your career history we have no alternative but to dismiss you with effect from 19 March 2009.”  It is unclear to the Tribunal as to why the 19 March was cited in this letter. However having evaluated all the evidence including the claim form and the oral testimony of the parties the Tribunal find that the effective date of dismissal was 31 March 2009.

 

27.   The claimant was dismissed without notice and it is the respondent’s case that the claimant was not entitled to notice because his dismissal was on the grounds of gross misconduct. In saying this the respondent relies upon the employment contract which lists "Falsification of records” as gross misconduct and also upon the warning contained in the application form and referred to at paragraph 11 above. It is the claimant’s case that he was dismissed for a reason related to his disability and furthermore that the respondent dismissed him at that time to prevent him acquiring the right not to be unfairly dismissed under the Employment Rights (Northern Ireland) Order 1996.

 

28.   The Tribunal find that the claimant was dismissed because of the fact that he was slow at his work, his output was poor in comparison to other workers and in circumstances where the respondent was operating to a very tight profit margin, he could not afford to retain the claimant. The Tribunal base this finding on the transcript of the conversation between the parties on 2 February 2009 which makes it abundantly clear that this was the case.

 

29.   The Tribunal have considered the respondent’s case that the claimant was dismissed for inaccurately recording his work history on his application form which under his contract potentially amounts to gross misconduct. Whereas it is the case that the application form was inaccurate in a number of respects the Tribunal find on the balance of probabilities, that had the claimant been a good worker these inaccuracies would not have resulted in his dismissal. In making this finding the Tribunal are persuaded by the fact the  respondent appears to have paid little attention to the application form prior to  the commencement of employment or indeed at any time prior to 2 February 2009. In particular the respondent did not take up  references. His reasoning is that he was aware that one of the referees was related to the claimant.  However the respondent did not seek an alternative referee. Furthermore despite the fact that the application form was inaccurate in three respects, the respondent’s evidence concentrates on the fact that the claimant worked as an agency worker with Camden Frames rather than as an employee. It appears to the Tribunal that the fact that the claimant had less experience than he claimed or the fact that there was a lack of clarity as to his reason for leaving previous employment would on the balance of probabilities have been of greater concern to the respondent. For all of these reasons and  in reliance on the respondent’s evidence and in  particular on the transcript of the conversation on 2 February the Tribunal find that the inaccuracies in the application form were used as an excuse to dismiss an employee who was slow at his work and as a consequence was adversely affecting the respondent’s profit margins.

 

30.   On 23 July 2009 the claimant was diagnosed with arthritis following an ultrasound scan. This is the first definite diagnosis the claimant received regarding his condition which was symptomatic during his employment.

 

31.   At all times material to these proceedings the Tribunal finds that the claimant’s medical condition affected his day to day activities and in particular his manual dexterity. By way of example the claimant is right-handed  and the Tribunal accept his evidence that he was unable to shave himself because he was unable to lift his right hand to his face. He relied upon his mother to shave him. The Tribunal find this to amount to a substantial adverse effect on his manual dexterity. The Tribunal have no evidence to suggest that the pain in the claimant’s leg had any effect upon his day to day activities or that it is an issue in these proceedings.

 

32.   In reliance upon a letter from Dr M McHenry, Consultant Rheumatologist at Antrim Hospital to Dr G Field of the Health Centre, Station Road, Antrim dated  27 July 2009, the Tribunal find that the claimant suffers from psoriatic arthritis affecting his left knee and his right elbow. The Tribunal are mindful that this letter post dates the claimant's employment with the respondent. However in his letter Dr McHenry records as follows:-"He [the claimant] has a longstanding history of psoriasis and approximately 4 years ago developed swelling of the right elbow. Since then he has been unable to fully extend it and indeed has had minimal flexion". This corroborates the claimant's own evidence regarding his medical condition which has not been challenged by the respondent. Based upon this and previous findings  the Tribunal  is satisfied that the claimant  suffered from a physical impairment which has  a substantial and  long term adverse  standing effect on his ability to carry out  normal day to day activities.

Relevant Law and Findings Based Upon The Law

 

33.   Section 1 of the Disability Discrimination Act 1995 (as amended) [the Act] provides

1 Meaning of “disability”

(1)      Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act 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.

Schedule 1 provides: - The effect of an impairment is a long-term effect if—

(a)      It has lasted at least 12 months;

(b)      the period for which it lasts is likely to be at least 12 months; or

(c)      it is likely to last for the rest of the life of the person affected.

Schedule 1 also provides that manual dexterity is a day to day activity.

34.   The Tribunal finds that the Claimant suffers from a physical impairment, i.e.  pain in his right elbow caused by psoriatic arthritis and based upon Dr McHenry’s report (paragraph 32) and the claimant’s own evidence (paragraph 31) that this has a long term adverse effect on his ability to carry out day to day activities namely his manual dexterity.  The Tribunal therefore find that the claimant is a disabled person within the meaning of the Act.

 

35.   Section 3A of the Act in so far as is relevant to these proceedings provides:-

 

     “3A - Meaning of discrimination –

 

                            (1)        For the purposes of this Part, a person discriminates against a disabled person if -

 

                                                   (a)    for a reason which relates to the disabled person’s disability, he treats him 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, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

                           

The requirement to make reasonable adjustments

36.     Section 4A of the Act provides as follows:-

“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 a disabled person concerned at a substantial disadvantage in comparison with the 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 that provision criterion or practice, or feature, having that effect.”

              State of the employer’s knowledge -

Section 4A(3) states that no duty is imposed on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know “ … that that person has a disability and is likely to be affected in the way mentioned in sub-section (1)”.

In Dolan v Chief Constable of Avon & Somerset [2008] the EAT confirmed that knowledge may be actual or constructive. 

 

37.                   Paragraph 5.12 of the Disability Code of Practice Employment and Occupation makes it clear that:-

 

“Although … less favourable treatment can occur even if the employer does not know that an employee is disabled, the employer only has a duty to make an adjustment if it knows or could reasonably be expected to know that the employee has a disability and is likely to be placed at a substantial disadvantage.  The employer must however, do all it can reasonably be expected to do to find out whether this is the case.”                                                  [Emphasis added]

38.     Section 18B of the Act provides :-

                              “18B   Reasonable adjustments; supplementary -

(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 a 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 the respect to taking the step;

 

(f)                      the nature of his activities and size of his undertaking.

 

(2)        The following is an example of a step a person may need to take in relation to a disabled person in order to comply with the duty to make a reasonable adjustment:-

 

(a)     allocating some of your work to someone else

 

39.     In Environment Agency  v  Rowan [2008] IRLR 20, the EAT re-stated earlier guidance to the effect that an Employment Tribunal in considering a claim that an employer has discriminated against an employee pursuant to Section 3A(2) of the Act by failing to comply with Section 4A duty must identify:-

 

“(a)     the provision criterion or practice applied by or on behalf of the employer, or

 

(b)     the physical feature of the premises occupied by the employer,

 

(c)    the identity of non-disabled comparators (where appropriate), and the nature and extent of a substantial disadvantage suffered by the claimant”. 

 

40.     The EAT stated that in their opinion a tribunal cannot properly make findings of a failure to make reasonable adjustments without going through that process.  Unless the tribunal had identified the three matters as set out above, it cannot go on to judge if any proposed adjustment is reasonable.  It would be simply unable to state what adjustments were reasonable to prevent the provision criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage. 

 

41.     The Tribunal find that the requirement to peel potatoes over long periods amounted to a provision applied by the respondent which placed the claimant at a substantial disadvantage in that he could not fully extend his right arm and working with it bent over a period of hours caused him pain and discomfort as a result of which his output was lower compared with his non disabled fellow workers. 

 

42.     Pursuant to section 4A(3) and relevant case law cited above at paragraph 36 the Tribunal is satisfied that the respondent could reasonably be expected to have known that the claimant had a disability  if it had made reasonable enquiries about the claimant’s medical condition.  Our reasons are as follows:-

 

(i)       The respondent had noticed that the claimant was slow in carrying out his duties and had issued warnings in relation to his slowness  without making any enquiry as to the reason for the slowness.

 

(ii)                 The respondent spoke with the claimant on 2 February 2009 acknowledging that he had noticed the claimant to be slow in carrying out his duties and that he required the assistance of colleagues in completing hosing duties. The respondent   was made aware at this time that the claimant suffered from a medical condition albeit that he was not aware of the actual condition or of the fact that it was a disability within the meaning of the Disability Discrimination Act 1995. He made no enquiries as to whether the condition may have amounted to a disability within the meaning of the act although he did encourage the claimant to consult his doctor.

 

(iii)        Having suggested on 2 February 2009 that the claimant consult his doctor the respondent made no efforts to contact the claimant at any time prior to dismissal to find out whether he had done so or what the outcome of any such consultation was.

 

43.     As a consequence of the findings above the Tribunal find that a duty to make reasonable adjustments arose within the meaning of Section 4A of the Act.

 

44.     The EAT in the case of Project Management Institute  v  Latif [2007] IRLR 579, in dealing with a reasonable adjustment case concluded that:-

 

“The key point identified …. 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.

 

45.     The respondent made no effort whatsoever to consider reasonable adjustments applying section 18B or otherwise. The Tribunal find that  allocating the peeling of potatoes to other employees or reducing the time spent peeling would have amounted to a reasonable adjustment. Such adjustment could readily have been made without any financial burden on the respondent. Having failed to even consider a reasonable adjustment let, alone implement one, the Tribunal find that the respondent is in breach of his statutory duty to make reasonable adjustments.

Disability Related Discrimination.

46.     Returning to the Act, a person discriminates against a disabled person if -

 

                    (a)      for a reason which relates to the disabled person’s disability, he treats him 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.

 

47.     For the purposes of this provision - The Tribunal is required to identify  the correct comparator.

         

48.     In Lewisham London Borough Council  v  Malcolm [2008] UK HL43, the House of Lords considered the case of a local authority housing tenant who suffered from schizophrenia and was therefore disabled for the purposes of the Act.  He had sub-let his flat in breach of his tenancy agreement.  The Council sought repossession as a result of that breach.  The tenant’s defence to the repossession proceedings was that the breach of the tenancy conditions had been caused by his disability and that therefore the Court was precluded from making any order for possession against him.  That defence failed.

 

49.     The Lords held that the correct comparator in these circumstances was a tenant of the Council who had no mental illness and who had sub-let his flat, and not a tenant of the Council who had not sub-let his flat.  The Lords held that Parliament would have meant the directed comparison to be a meaningful comparison in order to distinguish between treatment that was discriminatory and treatment that was not discriminatory.  The defendant’s schizophrenia was not in the mind of the Council when it decided to serve notice to quit and to take possession proceedings against him.  It was not enough for the claimant to show that, objectively viewed, there was a connection between schizophrenia and his sub-letting.  He needed to show also, that his mental condition i.e. his disability, played some motivating part in the authorities’ decision to terminate his tenancy and to recover possession of the premises.

 

50.     Applying the law as recited in Malcolm the correct comparator for the purpose of this case is an employee who was slow in carrying out his/her duties. The Tribunal find that on the balance of probabilities the claimant’s disability was not in the mind of the respondent in dismissing him. The respondent was focused solely on his poor work output and the financial implications of that for his business.

51.     The Tribunal is not satisfied that the respondent discriminated against the claimant for a reason which related to his disability.  There is no evidence whatsoever that a non-disabled person who was slow in carrying out their duties with the result that their output was poor would have been treated more favourably than  the claimant in similar circumstances. It is clear from the recorded conversation on 2 February that the respondent was concerned about the volume of work being produced by the claimant and the effect of that financially on his business. The Tribunal find that he was of the view that his continued employment could not be sustained for this reason. The Tribunal finds that any other slow worker would have been treated the same. In these circumstances the question of justification does not arise.

 

Sex Discrimination

 

52.     The claimant complains that he was subjected to sex discrimination by the respondent.

The Sex Discrimination (Northern Ireland) Order 1976 [the Order] provides at Articles 3 and 4:-

3.—(1) In any circumstances relevant for the purposes of any provision of this Order, other than a provision to which paragraph (2) applies, a person discriminates against a woman if—

(a)      on the ground of her sex, he treats her less favourably than he treats or would treat a man, or

(b)      he applies to her a requirement or condition which he applies or would apply equally to a man but—

(i)       which is such that the proportion of women who can comply with it is considerably smaller than the proportion of men who can comply with it?

(ii)      which he cannot show to be justifiable irrespective of the sex of the person to whom it is applied, and

(iii)      which is to her detriment because she cannot comply with it.

(1) In any circumstances relevant for the purposes of any provision of this Order, other than a provision to which paragraph (2) applies, a person discriminates against a woman if—

(a)      on the ground of her sex, he treats her less favourably than he treats or would treat a man, or…

Sex discrimination against men

4.—(1) Article 3 and the provisions of Parts III and IV relating to sex discrimination against women, are to be read as applying equally to the treatment of men, and for that purpose shall have effect with such modifications as are requisite.

 

53.     It is the claimant’s case that he suffered sex discrimination in that he was dismissed because as a man he was slower in carrying out his duties than women. He bases his complaint on comments made by the respondent to the effect that women were faster workers than men. This comment was made by the respondent during the course of the conversation on 2 February and previously.

 

54.     The Burden of Proof Regulations

 

The Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations amends the Sex Discrimination (Northern Ireland) Order 1976.  The relevant portion states:-

 

“63A(2)         where, on the hearing of a complaint, the complainant proves facts, from which the tribunal could, apart from this Article, conclude in the absence of an adequate explanation that the respondent:-

 

(a)      has committed an act of discrimination against the complainant which is unlawful by virtue of Part III; or

 

the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed that act.”

 

55.     Guidance on the application of these Regulations has since been given by the Court of Appeal in Barton  v  Investec Henderson Crosthwaite Securities Ltd and Igen Ltd  v  Wong [2005] IRLR 258.  In Igen Ltd  v  Wong [2005] IRLR 258 the Court of Appeal ruled that the guidance issued by the EAT in Barton  v  Investec Henderson Crosthwaite Securities Ltd would be applied in amended form as follows:-

 

(1)      Pursuant to Section 63A of the 1975 Act [the equivalent legislation in NI is the 1976 Order] it is incumbent on the claimant to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2.  These are referred to below as ‘such facts’.

 

(2)      If the claimant does not prove such facts he or she will fail.

 

56.     The Tribunal find that the claimant has proved that the respondent did comment that women were faster workers than men. However in circumstances where the respondent employed a balanced workforce and replaced the claimant with a man the Tribunal find that the claimant has failed on the balance of probabilities to prove primary facts from which the Tribunal could conclude in the absence of a reasonable explanation that sex discrimination has occurred. Accordingly the claimant’s claim that he was discriminated against contrary to the Sex Discrimination Legislation is dismissed.

 

Notice Pay

 

57.     The Tribunal having found that the claimant was not dismissed for gross misconduct [see paragraph 28]  awards notice pay in accordance with Article 118   of the Employment Rights (Northern Ireland) Order 1976 which provides as follows:-

118.—(1)  The notice required to be given by an employer to terminate the contract of employment of a person who has been continuously employed for one month or more -

 (a)     is not less than one week's notice if his period of continuous

employment is less than two years,

 

The Tribunal awards the sum of £190.00 representing one week’s pay under this heading.

Compensation for failure to make reasonable adjustments.

 

58.     The tribunal have no evidence of any financial loss suffered by the claimant as a result of his being dismissed. The claimant was employed as a low skilled low paid worker for a period of some 10 months in a family business that held no prospects of advancement.

 

59.     In considering injury to feelings and having considered and evaluated all the relevant evidence and observed the claimant himself during these proceedings the Tribunal considers that this case falls within the lower band of the guidelines set out in Vento  v  Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102 [as revised by Miles v Gilbank (Transcript 14/9/05].

The Tribunal accordingly awards the sum of £1,250.00 in respect of injury

to feelings.

60.           Interest at the rate of 8% per annum from the date of the respondent’s contravention of the Act is potentially payable under Regulation 7(1)(a) of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996. The tribunal is obliged by Regulation 3(1) (b) to consider whether to include interest on an award.   It may calculate the interest by reference to a period other than the period running from the date of the contravention to the date of calculation if it is of the opinion that serious injustice would be caused by calculating interest by reference to that period.

61.           The claimant received a verbal warning from the respondent on 17 June 2008 regarding “the lack of speed at his work”.  There is no evidence before the Tribunal as to why the respondent did not make enquiries of the claimant at this point regarding his lack of speed which would have  enabled him to consider reasonable adjustments at this time.

62.           The Tribunal have no evidence on which it could conclude that calculating interest by reference to the standard period would cause serious injustice to the respondent.  It concludes that it would be appropriate to award interest in this case and interest is awarded from 17 June 2008 to the calculation date which for the purposes of these proceedings is the date of this decision at the rate of 8%.

 

 

Chairman:

Date and place of hearing:         25, 26, 27 January 2010, Belfast.        

Date decision recorded in register and issued to parties: