Industrial Tribunals Northern Ireland Decisions

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Cite as: [2010] NIIT 7605_9IT, [2010] NIIT 7605_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 7605/09

CLAIMANT: Maurice McLaughlin

RESPONDENT: Northern Ireland Association for Mental Health

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed. The tribunal further finds that the respondent did not unlawfully discriminate against the claimant. The claimant’s claims are therefore dismissed.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Members: Mr P Killen

Mr P McKenna

Appearances:

The claimant was represented by Mrs Rosalind McLaughlin.

The respondent was represented by Mr P Hopkins, Barrister-at-Law instructed by Worthingtons Solicitors.

Claims

1.0 The claimant’s claims were as follows:-

(a) Unfair dismissal;

(b) Disability-related discrimination in relation to the disciplinary process and dismissal;

(c) Disability discrimination in the form of a failure to make reasonable adjustments in the course of the disciplinary procedure and dismissal.

Issues

2.0 The issues before the tribunal were, therefore, as follows:-

1. Was the claimant’s dismissal for misconduct unfair.

2. Was the claimant disabled for the purposes of the Disability Discrimination Act 1995, as amended, (DDA) at the relevant time namely during the disciplinary and dismissal procedures.

3. Was the claimant less favourably treated for a reason related to his disability in relation to the disciplinary procedure and the dismissal.

4. Did the duty to make reasonable adjustments arise and did the respondent fail to make reasonable adjustments in relation to the claimant’s disability during the disciplinary process and the dismissal.

Sources of Evidence

3.0 The tribunal heard evidence from the following witnesses for the respondent, Margaret Cavlan, Peter McDonald, Robert Poole and Moore Megahey. For the claimant the tribunal heard evidence from Victoria Young and Olivia Dalton and from the claimant himself. Two bundles of documentation were submitted to the tribunal and we had regard to all documentation to which we were referred. The parties also presented medical evidence in the form of extracts from GP notes and records and psychiatric reports from Doctor G Loughrey and Doctor F Brown in relation to the issue of disability.

Facts

4.0 The tribunal considered the evidence, both oral and documentary, and found the following relevant facts proved on the balance of probabilities.

4.1 The claimant was employed by the respondent on 29 April 2004 as a Services Manager until 15 September 2009 when he was dismissed for gross misconduct.

4.2 The gross misconduct alleged was two-fold namely, falsification of records and breach of the duty of trust and confidence. Specifically it was alleged that the claimant had completed mileage claim forms in April and May 2009 which led to him being paid mileage for journeys which he had not undertaken.

4.3 As Services Manager the claimant was responsible for managing day support and housing services and this involved him working in his office in University Street in Belfast and travelling to various residential schemes in Belfast and beyond. The claimant had a clear disciplinary record and an excellent performance record.

4.4 The claimant’s job involved a lot of travel and he appears to have had autonomy in relation to where he would be at any point in the day.

4.5 The respondent operated a system of monthly contact between managers and their line managers and these meetings were called ‘Supervisions’.

4.6 Prior to the period in question, the claimant had submitted mileage claim forms on a three-monthly basis. In April 2009 the claimant’s line manager Mrs Cavlan noticed some discrepancies and inaccuracies in the mileage claim forms for

January to March 2009.

4.7 There was a dispute at the hearing as to whether or not the issue of inaccuracies in the claim form was discussed formally or informally between Mrs Cavlan and the claimant and whether it was included as one of the issues in the supervision meeting on 21 April 2009. In accordance with usual practice, the claimant had

prepared the supervision meeting notes. Mrs Cavlan noticed that the issue of the mileage claim forms had been omitted from the typed up record of the meeting and she added handwritten amendments to the record to reflect the discussion.

4.8 The claimant’s case on this point was that inaccuracies in the claim forms were not discussed in the supervision meeting but that he had raised the issue in passing on another occasion. He also said that the handwritten additions to the notes were never brought to his attention until he received papers in preparation for the disciplinary hearing. However, at no point in his submission to the disciplinary panel, nor in his lengthy submission to the Appeal Panel, in the hearing for the Appeal Panel did the claimant make reference to his dispute about the inclusion of that issue in the discussion on 21 April 2009. We therefore accept Mrs Cavlan’s account and find that she discussed the issue with the claimant as part of her monthly contact. We find that the claimant apologised for making errors, stated that he would double check his claims in future and agreed to submit mileage forms on a monthly basis after that. The claimant was fully aware of the importance of accurately completed mileage forms from that point on.

4.9 Mrs Cavlan then had concerns about the April mileage claim form which was lodged at the beginning of May 2009.

4.10 On 26 May 2009 Mrs Cavlan and Mr McDonald (Finance Manager) had a meeting with the claimant to request details of the journeys claimed in the April mileage claim form. The claimant was given no details in advance about the reason for the meeting.

4.11 Specifically the claimant’s diary was requested at the meeting so it could be copied as the claimant had previously told Mrs Cavlan that he recorded all journeys in his diary. When this request was made the claimant then stated that he no longer used his diary to detail all journeys. He stated that the system he employed to ensure accuracy was that he kept the blank mileage form in a pocket behind his car seat and he filled in the claim for each journey immediately after the journey was completed. Nevertheless the claimant went through his diary in

order to get some information about the journeys made on the dates requested and the claimant stated that the mileage claimed was accurate because of his method of completing the claim form as soon as he had completed each journey.

4.12 Mrs Cavlan and Mr McDonald then proceeded with an investigation which involved meeting with, and obtaining statements from, LW, manager of a Supported Housing Scheme and EB, manager of another scheme. Both managers were asked whether the claimant had attended their schemes on specific dates when the claimant had claimed mileage for visiting their schemes.

4.13 The investigation also involved obtaining alarm company records; the staff register for University Street; night check lists records; and weekly schedules to check opening and closing times at relevant premises and to gather information to shed light on the time and purpose of each of the journeys claimed.

4.14 A further meeting was held on 8 June 2009 with the claimant to investigate concerns in relation to his mileage claim form for May 2009 which had been submitted on 1 June 2009.

4.15 In total sixteen entries for journeys claimed in April and May were investigated by the investigation team and of those, ten provided cause for concern and led to their report which recommended that a disciplinary meeting be convened.

4.16 As a result of the investigation report a letter was written to the claimant on

11 June 2009 inviting him to a disciplinary meeting and outlined that the charges to be considered at that meeting were as follows:-

“Gross Misconduct

1. Falsification of records in relation to mileage claim forms.

2. Breach of the duty of trust and confidence that exists between the employee and the employer”.

4.17 As a result of receiving the letter, the claimant went on sick leave on 15 June 2009 with stress and anxiety.

4.18 The disciplinary hearing arranged for 23 June 2009 was postponed to 1 July 2009 due the claimant’s ill-health. The meeting arranged for 1 July 2009 was postponed following receipt of the claimant’s GP letter which stated that he would be unfit to attend due to depression, anxiety and stress. The meeting arranged for 23 July 2009 was postponed due to the claimant’s continuing ill-health.

4.19 The respondent arranged on 26 June 2009 for the claimant to attend an Occupational Health examination which took place on 3 July 2009.

4.20 The referral letter from the respondent to Doctor Courtney of Occupational Health requested his opinion on (amongst other things) two key issues namely, firstly, the claimant’s fitness to attend the disciplinary meeting on 23 July 2009 and, secondly, the claimant’s fitness to return to work.

4.21 Doctor Courtney gave an opinion diagnosing anxiety depressive neurosis. He then gave his opinion on the claimant’s fitness to attend the disciplinary meeting, recommending that the meeting of 23 July 2009 be postponed for approximately six weeks to allow for medication to have a positive effect on his condition and symptoms. Doctor Courtney also gave his opinion that the claimant would be unlikely to be fit to return to work for a further eight weeks and that a review of the situation as regards to fitness to return to work should be considered for a review in two months. As a result of the report from Doctor Courtney the disciplinary meeting of 23 July 2009 was postponed and rearranged for 27 August 2009, that is, approximately eight weeks later.

4.22 The claimant advised the respondent that he would be unfit to attend the disciplinary meeting on 27 August 2009.

4.23 Human Resources (HR) were dealing with the medical aspect of the claimant’s situation and had before them the Occupational Health report and two letters from

the GP the most recent of which referred to the claimant’s history of illness and made no reference to fitness or otherwise to attend the meeting on 27 August 2009.

4.24 On 23 July 2009 a letter was sent by HR to the claimant advising that, as the

27 August 2009 was the fourth date which had been provided for the disciplinary hearing and due to the seriousness of the charges, the panel would proceed in the claimant’s absence if he did not attend. By letter of 17 August 2009 the claimant was advised by HR that if he could not attend the hearing, his written submission would be considered by the disciplinary panel if provided the day before the hearing.

4.25 The claimant had a meeting with HR managers on 30 July 2009 to discuss the Occupational Health report and the claimant was advised that a review appointment would be scheduled with Occupational Health at the end of August beginning of September 2009. There was no mention during that meeting of the forthcoming disciplinary hearing.

4.26 From the respondent’s point of view there were two processes operating in tandem namely the fitness and ill-health issue being dealt with by HR and the disciplinary process being dealt with by Mrs Cavlan and Mr McDonald. Medical information was not forwarded by HR to the Disciplinary Panel for reasons of confidentiality although the Disciplinary Panel were aware that the meetings had been postponed several times because of the claimant’s ill-health.

4.27 The claimant sent a written submission to the Disciplinary Panel (compiled with the aid of his wife) which ran to four pages and he enclosed a letter from his GP and the Occupational Health report.

4.28 The disciplinary hearing took place on 27 August 2009. The Disciplinary Panel considered the claimant’s submission, the letter from his GP, the investigatory report, the Occupational Health report, the statements of LW, EB and the claimant, alarm records and examined in detail the ten journeys in issue. The panel weighed up the competing evidence and took account of the medical evidence before them in relation to the effect, if any, on the claimant’s ability to complete his mileage claim forms accurately. Further information from Mrs Cavlan, as his line manager, was taken into account at a disciplinary level as was a statement from LQ which the claimant had not seen.

4.29 Following that process the Panel concluded that the claimant was guilty of the charges of gross misconduct and decided to dismiss him.

4.30 The decision to dismiss was reached following consideration of the lesser penalty of demotion. The Panel, however, decided that, due to the breach of trust involved, action short of dismissal would not be appropriate.

4.31 The Panel placed heavy reliance on the claimant’s repeated assertion that his mileage claim forms had to be accurate because they were completed at the time of the journey. In the Panel’s view therefore it was not a matter of recalling dates and times of journeys and the Panel therefore concluded that the claimant’s health difficulties did not impact upon his ability to complete the claim forms in the manner he had described to them.

4.32 By letter of 15 September 2009 the claimant was dismissed and was advised of his right to appeal. The claimant appealed by letter of 21 September 2009.

4.33 On 5 October 2009 an appeal hearing took place which was attended by the claimant, accompanied by a colleague, and was heard by Mr Poole and

Mr Megahey. This complied with Step 3 of the Statutory Dismissal Procedures.

4.34 The Appeal Panel considered the claimant’s lengthy written submission and attachments, the claimant’s oral evidence before them, gathered further statements, spoke again to key witnesses and spoke to the Disciplinary Panel. The Appeal Panel invited the claimant to give the names of witnesses and any other evidence and they would consider whether to follow it up.

4.35 The claimant agreed in evidence to the tribunal that, even if one of the allegations had been found against him, it would have amounted to gross misconduct and could have led to dismissal, such was the seriousness of the allegation of falsification of records.

4.36 Most of the statements gathered by the claimant in preparation for the appeal hearing gave general evidence (about his pattern of attendance at schemes for example) rather than specific evidence in relation to the actual dates in question. Several of the charges were overturned on appeal because of the new evidence brought forward by the claimant about specific dates.

4.37 The Appeal Panel took some time to consider carefully all the evidence which they had gathered and reached the conclusion that four out of the ten charges could not be upheld. Six of the ten charges were upheld and the finding of gross misconduct and the decision to dismiss were confirmed. The Appeal Panel considered penalties short of dismissal but considered the breach of trust incompatible with a continued employment relationship.

4.38 Throughout the process the claimant was told that he could not speak to witnesses or gather documents. This stipulation appears to have been a practice on the respondent’s part as it does appear in any written policy. We were referred to an individual’s rights on suspension in the Disciplinary Policy. If the claimant had been suspended he would have had more rights in relation to contacting staff through a designated manager than he had in the disciplinary process which actually took place.

4.39 The claimant gathered statements from potential witnesses in 2010 and referred to them at tribunal to show that if the disciplinary and appeal panels had conducted a more thorough investigation that he would have been exonerated. All but one of the statements from 2010 were general in nature and did not relate to the specific dates in question. One of the statements was from a contractor named Mr McC which confirmed that the claimant was in attendance on one of the specified dates.

Medical Evidence

4.40 The disciplinary process started with the letter of 11 June 2009 inviting the claimant to the disciplinary hearing. The claimant went off sick on 15 June 2009 with stress, anxiety and depression, which later reports showed to be severe. The two Consultant Psychiatrists agree that the claimant suffered an acute depressive episode from mid-June 2009 and that his depression was a fluctuating condition. We have very little evidence of the prognosis at that time but it certainly has transpired that the claimant has had symptoms of fluctuating severity for over a year since then. The respondent’s representative stated that it was not in dispute that the claimant suffered from a long-term mental impairment from in or around 15 June 2009.

The Law

5.0 The respondent referred the tribunal to the main principles derived from the following cases and the tribunal took these principles into account in reaching its decision.

Patrick Joseph Rogan v South Eastern Health and Social Care Trust [2009] EAT7.

Sainsbury’s Supermarkets Limited v Hitt [2003] IRLR 23 CA.

Ulsterbus Limited v Henderson [1989] IRLR 251 NICA.

Hussain v Elonex Plc. [1999] IRLR 42L CA.

Slater v Leicestershire Health Authority [1989] IRLR 16 CA.

Taylor v OCS Group Limited [2006] IRLR 613 CA.

Nothman v London Borough of Barnet (2) [1980] IRLR 65 CA.

Wood Group Heavy Industrial Turbines Limited v Crossan [1998] IRLR 680 EAT.

Andrews v Software 2000 Limited [2007] IRLR 568.

Goodwin v The Patent Office [1999] IRLR 4 EAT.

O’Hanlon v Commissioner’s for HM Revenue and Customs [2007] IRLR 404.

Environment Agency v Rowan [2008] IRLR 20.

London Borough of Lewisham v Malcolm and Equality and Human Rights Commission [2008] IRLR 700.

5.1 In the case of Slater, the Court of Appeal states that the mere fact that a disciplinary panel is involved in the investigation does not mean that it is necessarily unable to conduct a fair enquiry. What the tribunal must look at is whether the actions of the employer were fair in the circumstances.

5.2 In the case of Taylor v OCS the Court of Appeal it was made clear that it is not necessarily the case that an appeal must be by way of rehearing in order to cure any earlier defects involved in the disciplinary process. The tribunal should concentrate on whether the disciplinary process as a whole was fair.

Unfair Dismissal

5.3 The tribunal referred the parties to the case of Rogan in relation to the approach to be adopted by tribunals in misconduct dismissal cases.

5.4 The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (referred to as “the Order”). At Article 130 of the Order it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2). One of the potentially fair reasons for dismissal, listed at Article 130(2)(b), relates to the conduct of the employee. If the tribunal finds that the employer has dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).

5.5 The Order provides at A130A(2) that failure by the employer to follow a procedure does not, of itself, render the dismissal unfair if the employer would have dismissed the employee even if he had followed the procedure.

5.6 The task for the tribunal in a misconduct dismissal is set out as follows by the judge in British Home Stores Ltd v Burchell 1980 ICR 303:

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of misconduct in question … entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. Thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case”.

5.7 The “Burchell test” has been approved by the Northern Ireland Court of Appeal in the case of Rogan. This “range of reasonable responses” test is also applicable to procedural issues as confirmed by the Northern Ireland Court of Appeal in Ulsterbus Ltd v Henderson [1989] IRLR 251.

5.8 The employer does not have to prove beyond reasonable doubt that the employee was guilty of the misconduct, but merely that it acted reasonably in treating the misconduct as sufficient for dismissing the employee in the circumstances known to it at the time. The reasonableness of the employer’s decision is looked at at the time of the final decision to dismiss namely at the conclusion of any appeal hearing. The tribunal’s task, in essence, is not to conduct its own investigation and come to its own view of the offence but rather to assess whether the employer’s actions in relation to procedure and penalty fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances.

5.9 The statutory disciplinary and dismissal procedures, also known as line 3-step procedure, must also be followed in relation to any dismissal. In summary these provide, insofar as they relate to the circumstances in this case, that an employer contemplating disciplinary action must set out the grounds for the proposed disciplinary action in writing and invite the employee to a meeting. The meeting must take place at a reasonable time on reasonable notice and the outcome of the meeting must be communicated to the employee together with the right of appeal. If the employee appeals there must be a further meeting.

5.10 Duty to make reasonable adjustments

The employer’s duty to make adjustments is outlined in the DDA at Section 4A and states, insofar as is relevant to these proceedings, as follows:-

“4A – (1) Where –

(a) a provision, criterion or practice applied by or on behalf of an

employer, …

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.”

5.11 In the case of Rowan v The Environment Agency 2008 IRLR 20 the EAT outlined the steps that the tribunal must go through in order to determine whether the duty to make reasonable adjustments has arisen and whether it has been breached. The steps outlined in Rowan which are relevant to this case, are as follows:-

(1) identify the provision, criterion or practice applied that has put the claimant at a disadvantage compared to those who are not disabled;

(2) identify the non-disabled comparator (where appropriate);

(3) identify the nature and extent of the substantial disadvantage suffered by the claimant.

5.12 If the duty to make adjustments arises, the tribunal then goes on to determine whether any proposed adjustment is reasonable to prevent the provision, criterion or practice placing the claimant at that substantial disadvantage.

5.13 Section 18B(1) of the DDA sets out the factors that the tribunal must consider when deciding whether it is reasonable for an employer to make any particular

adjustment once the duty to make a reasonable adjustment has been triggered.

5.14 At section 18B(2) of the DDA examples are given of steps which employers may need to take to comply with the duty to make reasonable adjustments. The Disability Code of Practice on Employment and Occupation gives guidance on what those steps might mean in practice.

5.15 The burden of proof provisions as outlined in the case of Igen Limited v Wong [2005] IRLR 258 CA apply to these proceedings. On reasonable adjustments, the claimant must prove facts from which, in the absence of an adequate explanation, the tribunal could conclude that a duty to make a reasonable adjustment has arisen, and that it has been breached. If the claimant proves such facts the burden shifts to the employer to prove either, that no such duty arises or, that it has not been breached.

5.16 Disability-related discrimination. The law on disability-related discrimination is set out at Section 3A(1) to (4) of the DDA. Disability-related discrimination occurs when an employer’s treatment is for a reason which relates to the employee’s disability, the treatment is less favourable than the way in which the employer treats or would treat others to whom that reason does not, or would not, apply and the employer cannot show that the treatment was justified.

5.17 In the decision of London Borough of Lewisham –v- Malcolm 2008, the House of Lords held that the comparator should be a non-disabled person in the same position as the claimant. Malcolm also decided that it was necessary for the employer to have real or imputed knowledge of the claimant’s medical condition although it was not necessary for the employer to know that the employee suffered from a disability within the meaning of the DDA.

5.18 The burden of proof provisions apply to this aspect of discrimination as follows. The employee must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that, for a reason relating to his disability, he has been treated less favourably than a person without his disability but otherwise in his position, has been treated, or would be treated. If the employee does prove such facts the burden of proof shifts to the respondent to show that the employee has not suffered the less favourable treatment for a disability-related reason or, if he has, that the treatment was justified.

Conclusions

6.0 We considered the submissions of both sides and applied the law to the facts found to reach the following conclusions.

Unfair Dismissal

6.1 The claimant criticised the investigation stage of the procedures as he was not given notice of the precise concerns before the meeting of 26 May 2009 took place. We do not regard this as a flaw in procedures and indeed regard it as common practice for the initial investigatory meeting to be conducted without notice. From the record of the meeting it is clear that the claimant was able to deal with questions asked of him with the aid of his diary and he reinforced his assertion that his mileage claim was accurate because he completed the claim form as soon as he had completed the journey.

6.2 The claimant’s criticism of the charge letter of 11 June 2009 was that the letter did not specifically say that he was at risk of dismissal. We reject that argument by the claimant. The letter referred to “gross misconduct” and “falsification of records” and we regard those references to constitute a clear indication that the claimant’s job was in jeopardy. The letter enclosed the investigation report which made clear that the concerns involved journeys which the claimant said that he had made and which other people said he had not made. We therefore find that the letter of 11 June 2009 complied with Step 1 of the Statutory Dismissal Procedures in that the claimant was aware from its contents, and the context, that he was possibly facing dismissal.

6.3 The claimant’s criticism of the disciplinary process was that the Disciplinary Panel should not have been made up of people who did the investigatory report. We do not regard this as a flaw in procedures in the circumstances in this case. Whilst it might have been preferable for the same individuals not to have been involved at both stages, we accept the respondent’s evidence that there was a limited group of senior managers from whom the panel members could be drawn as it was important for more senior staff to be available for any appeal that might ensue. In addition one of the senior managers was away in Malawi at the relevant time. Due to the claimant’s level in the organisation it was of course important that managers of his level or above should be involved in investigatory and disciplinary stages.

6.4 At tribunal the claimant criticised the respondent for not postponing the disciplinary hearing until he was fit to attend. He claimed that this placed him at a disadvantage because he was not able to put his points verbally. We find that it was within the band of reasonable responses for the panel to have gone on with the hearing as it had been postponed three times previously and it was desirable for everyone involved for the process to move on. The claimant was able to put his case in his lengthy submission. The indication from Occupational Health was that the claimant would be fit to deal with such a meeting albeit that he was not fit to return to work.

6.5 We therefore do not regard as a flaw that the Panels did not seek out information from the individuals from whom the claimant obtained statements in 2010 for the purposes of the hearing before this tribunal. We are satisfied that the investigation carried out by both Panels was within the range of reasonable responses for a reasonable employer to have adopted in the circumstances.

6.6 At no stage during the process were either of the Panels alerted to any evidence that Mr McC might give nor did the claimant obtain a statement from this individual at that time. As a result that statement (obtained by the claimant in 2010) was not before either panel. Failure to obtain a statement from this individual did not render the dismissal unfair nor would it have made any difference to the outcome in our view given that it related to only one of the ten charges. As the claimant conceded in evidence, if even one of the charges had been found against him he could have been dismissed because even one charge of falsification of records was so serious.

6.7 The claimant also criticised the investigation and disciplinary procedure because at all stages he was told he was not allowed to discuss the matters at issue with any of the respondent’s employees, service users or volunteers. The claimant stated that this placed him at a disadvantage because he was unable to collate evidence from individuals which would either exonerate him or would cast doubt on the accuracy or reliability of the evidence gathered from LW and EB.

6.8 We regard this to have been a flaw in the disciplinary process. However, we find that it was cured by the procedure at appeal stage when the claimant was invited to put points that he wished to be put to witnesses and to identify witnesses that the Appeal Panel would contact if relevant. In the circumstances, therefore, we find that the flaw at disciplinary stage made no difference to the outcome and did not render the dismissal unfair.

6.9 The claimant in submissions alleged that the respondent did not follow its own procedures in four respects. Our findings follow each point.

(a) By not making evidence available to both parties, namely some of the supporting evidence used in the decision of the disciplinary panel.

We do not find this to have been a flaw in the process in the circumstances where all other evidence gathered was shown to the claimant and he had the opportunity to comment in detail in writing on it. The claimant also had the opportunity at appeal stage to comment on it.

(b) The claimant was not properly informed that an investigation was taking place in the first place when the investigation began.

We were not shown where this was set out as a requirement in the respondent’s procedures. As we have found, it does not constitute a flaw in procedures generally.

We find that the panel’s exploration of the matter was within the range of reasonable responses.

(d) During the claimant’s absence no one from work was assigned to enable him to have access to people or documentation to enable him to prepare his case. This would not have been the case if he had been suspended. The claimant was therefore prohibited from contacting staff and gathering evidence.

See our findings at paras 6.7 and 6.8 above.

6.10 The Appeal Panel carefully reassessed the evidence, gathered further evidence it considered relevant and reached a decision having looked at the matter afresh. We find that the appeal constituted a full and fair review of the matter.

6.11 We made clear at the outset of the hearing and at several points during it, that our task was not to re-run the disciplinary process. Our task, rather, was to determine the reason for the dismissal and to decide whether the employer acted within the band of reasonable responses as regards procedure and penalty.

6.12 The claimant was dismissed for gross misconduct. We find that the Disciplinary and Appeal Panels clearly genuinely believed that the claimant was guilty of the misconduct alleged, they had reasonable grounds upon which to base that belief and a reasonable investigation was carried out at all stages. The actions of the employer in relation to the procedures and the penalty were within the band of reasonable responses for a reasonable employer. The flaw in the disciplinary procedure identified by us was cured on appeal.

6.13 The Statutory Disciplinary and Dismissal Procedures were complied with.

6.14 Imposition of the penalty of dismissal was within the band of reasonable responses given the autonomous nature of the claimant’s job and the requirement for trust and given the serious nature of the allegations found against the claimant.

Disability Discrimination

6.15 The claimant’s claims for disability discrimination relate to the period of the disciplinary process and appeal process which culminated in his dismissal. This is the relevant period that we must look at to see if the claimant was disabled within the meaning of DDA.

6.16 The claimant made no claim that he suffered disability discrimination in the period before the disciplinary process. It is therefore not necessary for us to determine whether or not he was disabled at the time he filled in the mileage claim forms. The claimant during the hearing made some reference to the possible effect of his undiagnosed condition on his ability to be accurate about his mileage claim forms. We do not regard this as relevant to our deliberations on disability discrimination given that the discriminatory acts alleged were clearly stated to be in relation to the disciplinary and appeals process and dismissal only.

6.17 We find the claimant to have been disabled during the relevant period, that is, from 15 June 2009, when the claimant was diagnosed with stress, anxiety and depression and went off on sick-leave, to 23 November 2009, when the claimant was notified that his appeal was unsuccessful. The medical evidence is clear that the claimant had severe symptoms during that time and we find that they had the required substantial adverse effect on day-to-day activities to bring him within the definition in DDA.

6.18 Specifically the claimant claimed that the following amounted to disability-related discrimination and failure to make reasonable adjustments:-

(a) the respondent’s failure to consider approaches other than a disciplinary process;

(b) the failure to consider postponing the disciplinary hearing arranged for 27 August 2009;

(c) the failure by the respondent to obtain a further Occupational Health report to assess the claimant’s fitness to attend such hearings;

(d) the decision to dismiss rather than to consider lesser sanctions.

6.19 We find that the Provision Criterion or Practice (PCP) that placed the claimant at a disadvantage was the conduct of the disciplinary process which meant that the disciplinary hearing proceeded in his absence. However, we are not convinced that any disadvantage proved to be substantial in fact as the claimant submitted detailed submissions albeit with the aid of his wife.

6.20 If the duty had arisen we would have found that the respondent did comply with any duty to make reasonable adjustments when the disciplinary hearing was postponed three times and when the panel considered written submissions from the claimant when he did not attend the fourth meeting. It was reasonable of the employer to have relied on the OH report which indicated that the claimant would likely be fit to attend a disciplinary hearing within six weeks and it was reasonable for the employer to arrange that hearing eight weeks later. We do not regard it as a failure for the employer not to have requested a further Occupational Health report as Occupational Health had already made a clear distinction between fitness to attend a disciplinary hearing and fitness for work.

6.21 We do not regard it as a failure to make reasonable adjustments for the employer to have dismissed rather than to have considered a lesser penalty. There was no evidence before the employer that the claimant’s health problems affected his ability to complete mileage claim forms accurately and honestly particularly in circumstances where the claimant insisted repeatedly that his method of recording his journeys was accurate due to the fact that he recorded the journeys contemporaneously.

6.22 We do not accept that the respondent should have adopted a non-disciplinary approach to the allegations against the claimant. The respondent was not on notice of claimant’s medical difficulties before the disciplinary process started. There was no evidence that the disability, which then ensued, had had any effect on the actual acts which gave rise to the disciplinary process. The claimant has, on this point, therefore failed to show substantial disadvantage related to his disability. The duty to make such an adjustment does not, therefore, arise.

6.23 As regards the lack of access to individuals and documentation, there was no evidence that a non-disabled comparator absent on sick leave faced with the same allegations would have been treated any differently. The claimant has therefore failed to show detriment.

6.24 We do not find that the respondent’s treatment of the claimant amounted to disability-related discrimination. It is our view that a non-disabled comparator off work for a non-disabled reason and charged with the same offences would have been treated the same as the claimant. The Disciplinary and Appeal Panels had before them allegations of serious gross misconduct by a senior member of staff and our conclusion is that firstly, the way they dealt with the claimant was well within the band of reasonable responses and secondly, their treatment of him was not tainted by disability discrimination.

6.25 The claimant’s claims of discrimination and unfair dismissal are therefore dismissed.

Chairman:

Date and place of hearing: 6-15 September 2010 Belfast

Date decision recorded in register and issued to parties: