Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  468/10

 

 

 

CLAIMANT:                          George Perry

 

 

RESPONDENT:                  Royal Mail Group Limited

 

 

 

DECISION

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

 

Constitution of Tribunal:

Chairman:                            Mrs Ó Murray

Members:                             Ms G Ferguson

                                                Mr R Gunn

 

           

Appearances:

The claimant represented himself and was accompanied by his partner.

 

The respondent was represented by Mr M Wolfe, Barrister-at-Law, instructed by Napier and Sons, Solicitors.

 

 

The Claim

 

1.         The claimant’s claim was for unfair dismissal and for disability discrimination in relation to the events which led to his dismissal.

 

The Issues

 

2.         The issues for the tribunal were as follows.

 

(1)          Was the claimant unfairly dismissed for misconduct?

 

(2)          Did the claimant suffer disability discrimination in relation to being told on 27 October 2009 to change duties, and in being dismissed?

 

Sources of Evidence

 

3.         The tribunal heard evidence from the claimant and his GP, Dr Adams.  The tribunal also heard evidence from Mrs Avril Henry, the claimant’s line manager; Mr Barry Cullen, the manager who dealt with the disciplinary hearing; and Mr Jim McCreight, the manager who dealt with the appeal.  The tribunal also considered the documentation to which it was referred together with a GP report and GP notes and records.  The hearing was reconvened on 8 March 2011 to facilitate the attendance of Dr Adams.

 

The Law

 

Unfair Dismissal

 

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.         The task for the tribunal in a misconduct dismissal case 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”.

 

6.         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.  This approach has been endorsed by the Northern Ireland Court of Appeal in the case of Rogan v South Eastern & Social Care Trust [2009] NICA 47.

 

7.         The three-step statutory disciplinary and dismissal procedures 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.

 

Disability Discrimination

 

8.         The law on disability discrimination is contained in the Disability Discrimination Act 1995 (“the DDA”), as amended.

 

Disability-related discrimination 

 

9.         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. 

 

10.       In the decision of London Borough of Lewisham –v- Malcolm 2008, the House of Lords held that the comparator (whether real or hypothetical) should be a non-disabled person in the same position as the claimant.

 

11.       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. 

 

Disability Discrimination

 

12.       Section 4(2)(d) of the DDA provides that it is unlawful for an employer to discriminate against a disabled person whom he employs, by dismissing him or subjecting him to any other detriment.  The burden of proof applies to the discrimination claim as follows: the onus is on the claimant to prove primary facts from which the tribunal could conclude that discrimination occurred.  If the claimant proves such primary facts the burden shifts to the employer to prove that discrimination did not occur. 

 

13.       The task for the tribunal is to determine whether the claimant was less favourably treated compared to the treatment that would have been afforded to a person without his disability.  In this case the claimant did not rely on an actual comparator. 

 

14.       In the case of Shamoon against the Chief Constable of the Royal Ulster Constabulary 2003 UKHL 11 the relevant principle is outlined as follows:

 

            “ … Employment Tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was.  Was it on the proscribed ground which is the foundation of the application?  That will call for an examination of all the facts of the case.  Or was it for some other reason?  If the latter, the application fails.  If the former there will usually be no difficulty in deciding whether the treatment, afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others”.

 

15.       In the case of Anya v Oxford University, the Court of Appeal found that, in some cases of alleged discrimination, the tribunal can examine the history of dealings between the parties, in order to determine whether it is appropriate to draw an inference of a discriminatory motive in respect of the principal allegation in the case before the tribunal.

 

Reasonable Adjustments

 

16.       The employer’s duty to make adjustments is outlined in the DDA at Section 4A and states, insofar as it 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.”

 

17.      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 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.

 

18.      The tribunal must then go on to determine whether any proposed adjustment was reasonable in the circumstances, to prevent the provision, criterion or practice placing the claimant at that substantial disadvantage.

 

19.      It is clear from the case law that, once the duty to make adjustments is triggered, there is no onus on the claimant to suggest adjustments.  It is good practice for the employer to ask the employee about any possible adjustments.  There is no separate duty to consult or carry out a risk assessment.  However, failure to carry out an assessment or to consult, does not mean that the employer can rely on ignorance to excuse a failure to make a reasonable adjustment.

 

20.      The burden of proof provisions apply to this aspect of the case as follows.  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 arose or, that it has not been breached.  

 

Findings of Fact and Conclusions

 

21.      The tribunal considered the evidence and found the following facts on a balance of probabilities and reached the following conclusions.

 

General

 

22.      It is important to note that we have recorded our findings and conclusions on the evidence which was relevant to the issues before us.  For example we have not dealt with the claimant’s allegations in relation to an alleged breach of confidentiality as it became apparent as the case unfolded, that the evidence relating to that incident, which post-dated the claimant’s dismissal, was simply not relevant to the issues before us.

 

23.      We found the claimant’s evidence less than satisfactory on key matters examples of which are given below.  This tainted his credibility generally for us and led us to prefer the evidence of the respondent’s witnesses on several matters as set out below.

 

24.      We found the claimant’s evidence to be contradictory and unreliable in several respects and this tainted his creditability generally for us.  For example the claimant maintained that the reason his refused to stream the mail on Saturday 24 October 2009, was because there was a “clear frame policy” which meant that all mail had to be treated as first-class.  This meant that there would be no point in sorting out the mail because all mail was first-class according to that definition.  Originally, however, during the disciplinary investigation, the claimant stated that he had had a first class delivery for every address on his run.  He then resiled from that position when challenged on appeal and denied he had ever made this statement.  Before us, he repeated his original assertion that he had an item of mail for every single address on his run so streaming would not have helped him that day.

 

25.      The claimant also agreed in evidence to us that he had been able to complete the T14 run without having to do overtime.  He later alleged that the introduction of Pegasus (a work planning scheme) meant that he could not complete his run in time on a regular basis.  He then changed his evidence to state that he could not complete T14 in the time allocated. 

 

26.      The claimant was employed by the respondent as a Delivery Operational Postal Grade at the Antrim Delivery Office from 12 December 1988 until 22 January 2010 when he was dismissed for gross misconduct.

 

27.      The claimant’s job involved attending at the sorting office early in the morning to sort out and collect the mail for his delivery run.  The claimant would then carry out the deliveries on the run allocated to him.  During the time relevant to these proceedings the claimant at different times undertook the T14 and R8 delivery runs.  T14 was a town run involving making deliveries on foot with the aid of a trolley.  The R8 run was a rural delivery route which involved driving a van to make deliveries.

 

28.      The respondent conceded, and the tribunal so finds, that, during the period relevant to these proceedings, the claimant was a disabled person within the meaning of the DDA.  The claimant suffers from Chronic Obstructive Pulmonary Disease (“COPD”). 

 

29.      The claimant’s condition was diagnosed in 2006 and since that date the claimant has had to use different types of inhalers both preventatively and in order to ease symptoms during period of flare-up.  The claimant’s COPD was of mild to moderate severity and involved the risk of breathlessness and associated difficulties related to exertion.

 

Events leading to dismissal

 

30.      The events which ultimately led to the claimant’s dismissal began on Saturday

            24 October 2009.  That was the first day back to work following a national strike which meant, firstly, that tensions were high in the workplace between management and staff and, secondly, that there was a backlog of mail to be sorted and delivered.

 

31.      On 24 October 2009 the claimant (who at that time had been assigned to the R8 run since early September 2009) said to his line manager Mrs Henry that he would not work overtime that day.  As this was likely to lead to mail being left undelivered, Mrs Henry instructed the claimant to “stream” the mail.  Streaming the mail meant that the claimant should extract the first class post from the other mail so that it could be delivered first.  The claimant failed to carry out the instruction and this meant that there was 1.5 hours’ worth of undelivered mail left on his delivery frame that day.

 

32.      When leaving the manager’s office on Tuesday 24 October 2009, Mrs Henry alleged that the claimant had made the comment:  “This is what you get when you have a female manager” and Mrs Henry found this remark highly offensive.  Mrs Henry did not challenge the claimant at the time but she first raised this matter during the claimant’s disciplinary fact-finding process.

 

33.      On Monday 26 October 2009 and Tuesday 27 October 2009 Mrs Henry again instructed the claimant to stream the delivery.  On each occasion the claimant failed to obey the instruction given to him.  We do not accept the claimant’s assertion at hearing before us that he was given no such instruction on the two days in question.  We accept Mrs Henry’s evidence on this point primarily for the reason that it was clearly very important to her that first-class mail was delivered promptly and we do not accept that she would have left the claimant to his own devices on those two days to allow a further build-up of mail on each day without saying anything to him.

 

34.      One of the principal considerations for Mrs Henry in relation to prompt delivery of the mail was the Universal Service Obligation (USO).  The USO is a legal obligation imposed on the respondent to deliver certain classes of mail within certain time limits.  As part of the USO, first class mail should go out on the day it arrives in the depot.  Breach of the USO could lead to serious consequences for the respondent in relation to referral to a regulatory body, possible fines, adverse comment and possible loss of business.  For this reason the USO was of primary importance in the respondent’s business and there was an onerous obligation on Mrs Henry, as a manager, to ensure that it was complied with in her depot.

 

35.      Following the claimant’s further refusal to stream the mail on Tuesday 27 October 2009, Mrs Henry spoke to the claimant that day about his continuing refusal to obey her instruction to stream the delivery mail which had led to undelivered mail.  Mrs Henry was mindful of the fact that tensions were high following the industrial action and she wanted to defuse the situation rather than resort to any disciplinary action.  She therefore decided to move the claimant from the R8 duty to the T14 duty which the claimant had previously performed for two-and-a-half years without any problems.  The claimant stated that he would not change duties. 

 

36.      On 28 October 2009 the claimant signed on for the R8 duty despite his name being listed for the T14 duty.  He then proceeded to prepare the mail for the R8 deliveries.  Mrs Henry took him aside and instructed him that he must move to the T14 duty which he refused to do.  Mrs Henry warned the claimant that if he continued to refuse to move duty she would have no option but to suspend him for failure to obey a reasonable instruction.  Mrs Henry told the claimant to go to the canteen for ten minutes to think about the matter and when the claimant returned he confirmed that he would not do as he was instructed.  The claimant was then suspended.

 

37.      At no stage during the exchanges between the claimant and Mrs Henry did the claimant make reference to any difficulties he was experiencing due to his COPD.  The claimant made no reference to his COPD being his reason for not wanting to return to the T14 duty.  The claimant agreed in evidence to us that he did not mention difficulties due to his COPD in any of his encounters with his manager over the four days in question. 

 

38.      Mrs Henry was aware that the claimant suffered from COPD as she had been briefed on this when she took over the post of manager in the Antrim office in April 2008.  Mrs Henry was not aware of any difficulties experienced by the claimant on the T14 or R8 duties due to his COPD.

 

39.      The claimant’s  absence record was such that on several occasions he triggered the absence management procedures which could have led to warnings on four occasions.  On three of those occasions the claimant’s manager decided not to issue a warning and effectively discounted the claimant’s absence because it was related to his COPD.  Mrs Henry was responsible for the last of those occasions which occurred after she joined the Antrim depot.  Indeed Mrs Henry discounted a further  period of absence which was due to stress following an allegation of bullying and harassment by another employee against the claimant.  The reason she discounted that absence was that she was aware that stress could cause a flare-up of the claimant’s condition and she therefore exercised her discretion to ensure that he did not receive a warning for that absence. 

 

40.      On each occasion when the claimant returned to work following a period of absence, Mrs Henry, (and before her tenure, the claimant’s previous manager), met with him and went through a standard form which included a question as to whether there was any requirement to meet again to review progress or actions.  At no stage did the claimant respond by raising any issues or difficulties he was having due to his COPD and its effect on his work.

 

Disciplinary Process

 

41.      Following his suspension on 28 October 2009, the respondent’s disciplinary process began.  An error was made in that process in that a fact-finding interview was not carried out by the claimant’s line manager before the matter moved onto a disciplinary footing.  When this error was pointed out by the claimant’s trade union representative, the respondent started the process again and a manager other than the claimant’s line manager carried out the fact-finding process.  The disciplinary investigation was then carried out by Mr Cullen who had not been involved in the process before that.  Mr Cullen was instructed not to use any statements gathered in the original investigation but to start the investigation afresh. 

 

42.      A letter of invitation to the disciplinary hearing was sent to the claimant on 17 December 2009.  The letter outlined the charges against the claimant, told him that he was at risk of dismissal, and told him of his right to be accompanied.  The claimant was sent copies of the documentation to which Mr Cullen would refer.  The letter complied with step 1 of the SDP. 

 

43.      The two charges levelled against the claimant were as follows:

 

            “(1)    Gross misconduct on the basis that you deliberately disobeyed an instruction which put the USO at risk.

 

(2)          Making a derogatory comment, concerning a Royal Mail manager on the grounds of gender.”

 

44.      Mr Cullen’s investigation involved him perusing the statements gathered by the fact- finding process.  Mr Cullen interviewed the claimant and then re-interviewed Mrs Henry and her deputy Mr McCahon to gather more information from them in relation to further points put by the claimant during his interview.

 

45.      The disciplinary hearing took place on 21 December 2009.  We find that the hearing was in compliance with the SDP.

 

46.      It was during the disciplinary interview with Mr Cullen that the claimant and his representative first raised the issue of his COPD as a relevant issue.  The claimant’s case at that point was that he could not move back to the T14 duty because of his COPD and because he had previously had difficulties with his COPD on that duty.  The claimant said that this was the reason why he had originally moved to R8.

 

47.      Mr Cullen considered this point having gathered further evidence on it by interviewing Mrs Henry.  Mr Cullen’s conclusion was that he did not believe that the claimant’s COPD was the reason for his refusal to move back to the T14 duty as the claimant had never raised this with his manager at that time nor was there any evidence of the claimant having had difficulties in carrying out the T14 duties when he was previously assigned to that run.

 

48.      Mr Cullen considered and weighed up the evidence gathered and decided that the two charges were proven against the claimant. He decided that dismissal was the appropriate penalty given the seriousness of the offences.  He considered action short of dismissal but decided that dismissal was appropriate given that there was a current “Serious Warning” on the claimant’s record for a previous offence of bullying and harassment of a female colleague in 2008.  A Serious Warning was the most serious penalty short of dismissal in the respondent’s policies.

 

49.      The initial error in the disciplinary process was rectified by the respondent and did not taint the disciplinary process.

 

50.             The claimant pointed to the fact that the statements taken during the initial disciplinary investigation, which was abandoned, were later referred to in the conduct hearing before Mr Cullen.  We are satisfied that this did not amount to a defect in circumstances where it was the claimant and his representative who insisted that the previous statements be considered by Mr Cullen as they wished to point out inconsistencies between the statements in relation to the allegation of the derogatory comment.  It would have been remiss of Mr Cullen not to have acceded to their request in these circumstances.

 

51.      We are satisfied that Mr Cullen believed the claimant was guilty of misconduct and he conducted a reasonable investigation giving him reasonable grounds to sustain that belief.  We find that the penalty was within the band of reasonable responses in the circumstances.  The letter of dismissal dated 20 January 2010 complied with the SDP.

 

Appeal

 

52.      The claimant appealed and the appeal process was dealt with by Mr McCreight.  The appeal complied with step 3 of the SDP.  During the appeal the claimant resiled from his argument that streaming was pointless because he had first class post for each address, and denied that he had ever said that he had first-class post for each address.

 

53.      The claimant did not mention during the appeal process anything to do with his COPD as having a bearing on events.

 

54.      Mr McCreight re-interviewed the claimant; Mrs Henry; her deputy Mr McCahon; and Mr Jess.  He spoke to Mr S (who had finished the claimant’s run on the Saturday) and considered the papers in the case.  He also checked mail traffic volumes during the relevant period.  He did not seek out further potential witnesses to the derogatory comment as he felt he had gathered enough evidence and no further names of potential witnesses had been put forward by the claimant or anyone else.

 

55.      The claimant’s criticism of the appeal process was that there should have been a more in-depth investigation into the circumstances of the alleged derogatory comment; that Mr McCreight should have sought out other individuals who might have been in the area at the time to see if they had heard anything; and Mr McCreight should have investigated more thoroughly the alleged breach of confidentiality post-dismissal.

 

56.      Mr McCreight viewed the primary charge of failure to follow management instructions, as very serious indeed given its connection to the USO and it, of itself, warranted summary dismissal in his view.  In these circumstances, we regard it as within the band of reasonable responses for a reasonable employer for Mr McCreight not to have investigated the derogatory comment any further.

 

57.      We accept Mr McCreight’s evidence that the first charge was enough to warrant summary dismissal.  Mr McCreight’s conclusion on the derogatory comment was within the band of reasonable responses as he made clear to us that he believed the evidence of Mrs Henry and Mr McCahon in the circumstances.  We agree with Mr McCreight’s view that the confidentiality issue was not relevant to the charges before him.

 

58.      We are satisfied that Mr McCreight believed that the claimant was guilty of misconduct in refusing to follow reasonable instructions, and that he had reasonable grounds to sustain that belief following a reasonable investigation.  We find that it was within the band of reasonable responses for Mr McCreight to have confirmed the dismissal decision and to have taken account of the serious warning existing on the claimant’s record when making this decision.  The written appeal outcome was dated 14 May 2010.  The respondent complied with the SDP in the appeal process.

 

Change in duties

 

59.      Having considered the conflicting evidence from both sides in relation to the claimant’s reason for moving from T14 to R8 in early September 2009, we accept Mrs Henry’s account and reject the claimant’s account.  We find that the reason the claimant requested a move from T14 to R8 was that he wanted a change and “fancied a bit of driving”.  We do not accept that the change was prompted by the claimant experiencing difficulties due to his medical condition primarily because the claimant never made a complaint that he was experiencing difficulties; he completed his run on time; and there was no medical evidence from the GP records that he experienced problems following the introduction of the Pegasus work-planning scheme in Spring 2009. 

 

60.      The risk assessment carried out on 18 October 2007 observed that the claimant was able to perform the T14 route and recommended that adjustments be made to his delivery in the event of him experiencing chest problems.  As the claimant performed that route with no problem and no complaint we do not accept that the respondent was on notice that he had any difficulty with it. 

 

61.      We therefore do not accept that Mrs Henry had a sinister motive for asking the claimant to return to the T14 duty on Wednesday 28 October 2010 nor was she aware that moving him back to that duty would cause him difficulty due to his COPD.  We accept her evidence that the reason for asking him to change back to that duty was because she believed that he could perform it without difficulty and that this would solve the problem which was that the claimant would not complete the R8 duty.

 

62.             The claimant raised two issues in relation to the respondent’s knowledge of his condition.  Firstly, he alleged that a report compiled in 2007 by ATOS (an organisation which carried out health assessments following referrals from the respondent) was ignored and, secondly, he stated that he had had to organise the workplace risk assessment which took place on 18 October 2007.

 

63.             We are satisfied that the respondent knew of the claimant’s COPD following the 2006 report.  Following the 2007 report the risk assessment was carried out and essentially revealed no problems for the claimant in carrying out his duties at that time.  The recommendation in the 2007 report, that absence related to the claimant’s condition be absorbed, was carried out in practice during the absence management process.  The other recommendations related to adjustments to be made if the claimant actually manifested problems due to his condition.  As we have found above, we do not accept that the claimant manifested medical problems to a degree which led to any difficulty in performing his work.

 

64.             The claimant also alleged, firstly, that the respondent had never sat down to talk to him about his condition and how it might affect his work and, secondly, that a fan (which was mentioned in the 2007 ATOS report sent to his previous manager Mr M), was not provided.

 

65.             The points made by the claimant in relation to the fan and to him having to arrange the workplace risk assessment did not form part of the allegations of discrimination in his case before he gave evidence at hearing.  For this reason, the respondent was not in a position to deal fully with the matters.  The respondent produced some documentation on the second day of hearing which related to these allegations but was not able to call Mr M to give evidence as he left the respondent’s employ some time ago.

 

66.             In circumstances where the issues before us related to allegations of discrimination concerning the events from 24 October 2009 to the date of the outcome of the appeal, the issues raised in relation to the fan and the organising of the workplace assessment, at their height, could only constitute background information in the Anya sense.  We are not satisfied that these matters tend to show that the later acts amounted to discrimination given our findings on those acts as set out above. 

 

67.      In submissions, the claimant raised two further alleged failures to make reasonable adjustments which we have discounted entirely as they had never formed part of the claim nor were they dealt with in the evidence before us.

 

68.      The claimant’s case before us alleging failure to make reasonable adjustments, related to the instruction that he move back to T14 on 28 October 2009.

 

69.      It is for the claimant to show that this constituted a provision criterion or practice which placed him at a substantial disadvantage because of his medical condition.  In other words, would moving back to T14 have caused the claimant to suffer a substantial disadvantage due to his disability.  From the evidence before us, we do not accept that the T14 duty caused the claimant problems in practice nor do we accept that, at the time he was asked to move back to T14, he was having problems with his chest.  We therefore find that the claimant has failed to show that the move would cause him any problems related to his COPD and he has, therefore, failed to show the requisite substantial disadvantage.  The duty to make reasonable adjustments was therefore not triggered and the claimant’s claim for discrimination on this ground fails.

 

70.      The claimant seems to have believed that once the respondent knew he had COPD, there was no obligation for him to tell his managers if he was having any problems due to his medical condition.  Whilst it is correct that an employer must be proactive in relation to facilitating an employee who has a disability, there is also an onus on an employee with a chronic condition that can flare up, to tell his manager if he is having problems or is in a period of flare-up requiring some adjustments.

 

71.      However in this case we must make clear that we do not accept that the claimant actually did have the problems he alleged at hearing for the reasons set out above.

 

Summary

 

72.      We do not accept that the actions of Mrs Henry and the dismissal amounted to disability discrimination of any kind.  Mrs Henry gave the claimant numerous chances to comply with her reasonable instructions and thus she gave the claimant more latitude than other managers might have.  She had previously made adjustments to absence triggers taking account of the claimant’s condition.  She intervened to resolve a bullying and harassment complaint against the claimant through mediation thus sparing the claimant disciplinary charges in January 2009.  We accept that Mrs Henry’s instruction to move to T14 was not connected to the claimant’s disability in any way.

 

73.      Mr Cullen’s decision to dismiss was not connected to the claimant’s disability and Mr McCreight’s confirmation of the dismissal was not connected to the claimant’s disability.  There was no evidence before us that the claimant was treated less favourably than a non-disabled person facing the same disciplinary charges nor do we find that a hypothetical comparator would have been treated differently.  The claimant has failed to prove primary facts from which we could conclude that he suffered less favourable treatment due to his disability.  The claimant’s claim for disability discrimination and disability-related discrimination therefore fails.

 

74.      The claimant seems to have felt that it was open to him to disregard the instructions given by his manager as he knew better than her.  The claimant persisted in disregarding instructions from his manager over several days despite several chances to rethink and despite being given a cooling-off period.    We accept Mrs Henry’s evidence that the claimant told her he was ‘making a stand’ by leaving work on his frame each day irrespective of sizeable fluctuations in mail volume and despite him having dealt with similar volumes of mail in time in previous weeks.

 

75.      We do not accept the claimant’s assertion at tribunal that his manager was at fault for failing to involve the Trade Union on his behalf.  We find this assertion of the claimant to be completely unsustainable in circumstances where he previously was a Trade Union official and must have known well his right to involve his Trade Union at any stage in any dispute with his manager. 

 

76.      Essentially the claimant went into a stand-off with his manager and it was only when matters were on a disciplinary footing that he brought up the issue of his medical condition.  He then made no reference to his medical condition on appeal.

 

77.      In summary the claimant was fairly dismissed for gross misconduct as the actions of the respondent, in the form of its managers, were well within the band of reasonable responses for a reasonable employer as regards the process adopted, the outcome and the penalty imposed.  The employer complied with the SDP.

 

78.      The respondent did not unlawfully discriminate against the claimant

 

79.      The claimant’s claims are therefore dismissed in their entirety.

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:  21-25 February 2011 and 8 March 2011 at Belfast.                       

 

 

Date decision recorded in register and issued to parties: