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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Klimaite v Moy Park Maria Santos Raymond McCrory Gillian Graham [2011] NIIT 00700_11IT (12 October 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/00700_11IT.html
Cite as: [2011] NIIT 00700_11IT, [2011] NIIT 700_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 700/11
CLAIMANT: Nijole Klimaite
RESPONDENTS: 1. Moy Park
2. Maria Santos
3. Raymond McCrory
4. Gillian Graham
DECISION
The unanimous decision of the tribunal is that the claimant’s claims for disability discrimination and unlawful deductions from wages are dismissed.
Constitution of Tribunal:
Chairman: Mr P Kinney
Members: Mr A Kerr
Mr A Crawford
Appearances:
The claimant was represented by Mr M Hric.
The first-named respondent was represented by Ms R Best, Barrister-at-Law, instructed by Mr C Burns, Company Solicitor.
The second, third and fourth-named respondents were also represented by Ms R Best, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.
The tribunal was also assisted by Ms Paspekina and Ms Devlin, Interpreters.
Issues
1. The issues the tribunal had to consider were identified at the Case Management Discussion on 29 July 2011, namely:-
(1) Whether the claimant has presented her complaints in respect of disability discrimination within the statutory time limit.
(2) If not, whether it would be just and equitable for the tribunal to extend the statutory time-limit.
(3) Direct discrimination
Whether the claimant was treated less favourably:-
(i) by not being given the chance to protect herself against complaints about her;
(ii) by being required to work on the line on her own thereby giving the second respondent the chance to make complaints if something went wrong;
(iii) by not taking the claimant’s complaint seriously;
(iv) by ignoring GP/OHN guidelines that were provided which allegedly caused the claimant serious health problems;
(v) by allegedly causing the claimant money loss;
than other employees who were not disabled or who did not have epilepsy were or would have been treated.
(4) Failure to make reasonable adjustments
(i) whether the first respondent applied a provision, criterion or practice which placed the claimant at a substantial disadvantage compared with persons who were not disabled or who did not have epilepsy in relation to the departments the first respondent required the claimant to work in and the jobs she was required to do in those departments;
(ii) the first respondent accepts that it was aware that the claimant had epilepsy. The issue for the tribunal to determine is whether the second, third and fourth respondents knew or could reasonably have been expected to know that the claimant had epilepsy;
(iii) whether the respondent made reasonable adjustments for the claimant.
(5) Harassment
Whether for a reason related to the claimant’s disability:-
(i) the first respondent always gave the claimant too much to do so that she regularly failed in her work;
(ii) the second respondent:-
(a) constantly picked on the claimant as she became an easy target and whether the second respondent regarded the claimant as a ‘problem’ for non-disabled colleagues;
(b) falsely accused the claimant of ‘errors’ not actually made;
(c) harshly and constantly criticised having a different standard for the target;
(iii) whether the Occupational Health Nurse doubted the claimant’s disability and accused her of faking it;
(iv) if so, whether the first respondent is legally responsible for the conduct of the second respondent and the Occupational Health Nurse.
(6) Unlawful deduction from wages
(i) whether the claimant has presented her complaint in respect of unlawful deductions from wages within the statutory time-limit;
(ii) if not, whether it was reasonably practicable for the complaint to have been presented within the time-limit;
(iii) whether the claimant’s claim for unlawful deductions from wages should be struck-out on the ground that the claimant has received all monies owed to her.
2. At the outset of the hearing, Mr Hric, on behalf of the claimant, confirmed that the complaints of reasonable adjustments were in relation to the allegation that the claimant was moved in June 2010 to the Preparation Department without any risk assessment being completed. The claimant also alleged that the refusal of a shift change in 2008 was a failure to make a reasonable adjustment.
Findings of fact
3. The claimant commenced work for the first respondent on 22 August 2005. She had no health issues at that time. She has epilepsy which was first diagnosed in June/July 2008 after a seizure at work. The claimant was off work and returned in January 2009.
4. The first respondent arranged for the claimant to see the Occupational Health Nurse after her seizure. A series of reviews were carried out. On 7 January 2009 Occupational Health recommended a phased return to work on light duties. The claimant then returned to work.
5. The claimant gave evidence of numerous requests from her GP for easier shifts and shorter hours in the period from 2005 to 2008. The respondents and their witnesses all denied receiving any such letters. The correspondence produced by the claimant at hearing did not support her assertions; nor did the information from the GP notes and records available to the tribunal. The tribunal find that the respondents did not receive any such letters from the claimant’s GP in the period from 2005 to 2008.
6. In June 2009 an incident involving the claimant occurred whilst she was working on Line 8. When her managers became aware, they asked for a further review of the claimant by Occupational Health. This was carried out and there was no repeat of the incident in question.
7. In early 2009, the second respondent was appointed as the claimant’s immediate line manager. There was friction between the two individuals from an early stage. The claimant accused the second respondent of shouting and bullying her. She accused the second respondent, who is Portuguese, of being angry with Polish, Lithuanian and Latvian workers. She said the second respondent spoke Portuguese to the Portuguese women and sometimes left her Department to talk to Portuguese women in other Departments. The claimant told the tribunal that because the second respondent shouted, she put noise protectors in her ears. She said her purpose was both to protect her ears but also to avoid hearing the second respondent.
8. On 15 May 2010 the claimant was suspended from work by Mr McVeigh, the Area Manager for the first respondent. She was suspended after a complaint by the second respondent. The claimant was suspended on full pay pending an investigation.
9. On 17 May 2010 the claimant lodged a grievance against the second respondent. This alleged that the claimant had no problems at Moy Park until the second respondent became her charge hand in 2009. The claimant accused the second respondent of lying about the events on 15 May 2010. Mr McVeigh carried out an investigation into both the grievance and the suspension incident. He spoke to a number of workers in the claimant’s Department, including those identified by the claimant. The investigation was reviewed by the third respondent, the first respondent’s Production Manager. He concluded from the information gathered that the second respondent had asked the claimant to move from one production line to another line in the claimant’s Department. The claimant refused. After repeating the request, the second respondent asked another employee to witness a further request. That employee confirmed at interview that the claimant refused to move. This version of events was also supported by at least one other witness. From the interview minutes the third respondent also concluded that a majority to those questioned found the claimant to be a disruptive influence on the Department.
10. The third respondent arranged a grievance meeting with the claimant on 3 June 2010 to discuss the outcome of the investigation. At this meeting the third respondent told the claimant that he had some concerns about her. It was clear that she and the second respondent did not get on. He told the claimant of what others had said in the interviews. He concluded that he wanted to be fair to the claimant, to the second respondent; and also to the other members of the team. He decided to move the claimant to the Preparation Department. He said that because of the claimant’s health and medication she would be kept on light duties until a full risk assessment was carried out (which was subsequently done on 23 June 2010 and assessed by the Occupational Health Nurse as appropriate for the claimant). He invited the claimant to think of this as a fresh start. He did not impose any disciplinary sanctions on the claimant relating to the events on 15 May 2010; although he felt she had refused a reasonable work instruction.
11. The claimant commenced work in the Preparation Department on 5 June 2010. On 17 June 2010 she wrote thanking the third respondent for his support and help on the incident investigation. She also told him she appreciated the offer to work in the Preparation Department. She then asked to be transferred back to her old job. She said she had frequent nose bleeds and heavy headaches. She wanted to return to her colleagues and ‘enjoy my work as I used to’.
12. In the early hours of 18 June 2010 the claimant had a seizure which required her hospitalisation for four days. She has been off work since then, although still employed by the first respondent.
13. On 21 June 2010 the third respondent wrote to the claimant responding to her letter of 17 June 2010. He invited her to a meeting on 23 June 2010. The third respondent received a call to say the claimant could not attend on 23 June 2010 because of bruises sustained during an epileptic fit. The third respondent wrote again on 29 June 2010 arranging a meeting on 2 July 2010. The claimant did not attend and subsequently telephoned to say she was sick and the meeting was re-scheduled for Monday 5 July 2010. The third respondent confirmed this in writing to the claimant on 2 July 2010.
14. The claimant maintained in her evidence that she told the third respondent of her nose bleeds before 17 June 2010. The third respondent denied this. At the meeting on 5 July 2010 the minutes record the claimant as saying that she did not speak to anyone about her headaches or nose bleeds. The tribunal find that the claimant did not make complaints of headaches or nose bleeds to the respondents before her letter of 17 June 2010.
15. Following the meeting with the claimant, the first respondent considered the claimant’s request and the availability of other posts. Further workplace assessments were carried out by the Occupational Health Nurse. On 31 August 2010 the claimant was offered a job which was identical to her previous role but in the Coated Department rather in the Cooked Department. By this stage the claimant had retained solicitors and this letter was sent to her solicitor. The claimant in evidence denied being aware of this letter. She also denied being aware of the offer made of an alternative post in subsequent correspondence from the first respondent. However, on the basis of the evidence before it and, in particular, the claimant’s replies to correspondence the tribunal is satisfied that the claimant was aware of the alternative job offers.
16. On 17 September 2010, Mr Hric, the claimant’s partner, attended at the first respondent’s premises to complain of discrepancies in the claimant’s sick pay for 6 – 12 September 2010. The third respondent met Mr Hric and told him that he could not discuss the claimant’s details. The discrepancy was corrected in the claimant’s next pay-slip.
17. The claimant raised a further grievance on 20 September 2010. It was agreed that this be dealt under the first respondent’s Code of Ethnic Procedures rather than the grievance procedure. In this letter reference was made to underpayment of a shift allowance in June 2010. This was investigated by the first respondent and payment was made of the shortfall (£6.03) in October 2010.
18. The claimant raised a further grievance regarding the delay in making this payment. The grievance was investigated and the claimant told that the reason for the delay was human error.
The law
Direct Disability Discrimination
19. Under Section 3A(5) of the Disability Discrimination Act 1995, a person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including disabilities, are the same as, or not materially different from, those of the disabled person. Direct disability therefore occurs where the person’s disability is the reason for the alleged less favourable treatment.
Reasonable Adjustments
20. An employer is under a duty to take such steps as are reasonable to prevent any provision, criterion or practice applied for or on his behalf, or any physical feature of the employer’s premises from placing a disabled person at a substantial disadvantage in comparison to people who are not disabled (Section 4A of the Disability Discrimination Act 1995). Where such a duty has arisen the tribunal must decide whether it is reasonable for an employer to make any particular adjustment. In doing so, the tribunal must consider the factors set out in Section 18B of the 1995 Act. Examples of steps which employers should take include allocating some of the disabled person’s duties to other persons, making adjustments to premises, transferring the disabled person to fill an existing vacancy, altering the disabled person’s hours of working or training or acquiring or modifying equipment. In the case of Environment Agency v Rowan [2008] IRLR20 the EAT said that a tribunal in considering a claim of failure to make a reasonable adjustment must identify the provision, criterion or practice applied by or on behalf of an employer, the identity of non-disabled comparators where appropriate and the nature and extent of the substantial disadvantage suffered by the claimant. The question for the tribunal is an objective one namely has the employer complied with his obligations to make reasonable adjustments where the duty has arisen.
21. Section 17A(1C) sets out the burden of proof in disability discrimination claims. It provides:-
“Where, on the hearing of a complaint, under sub section (1), the complainant proves the facts from which the tribunal could, apart from this sub section, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this part, the tribunal shall uphold the complaint unless the respondent proves he did not so act.”
22. Guidance on how to apply the burden of proof was provided by the Court of Appeal in the case of Igen Ltd v Wong [2005] EWCA Civ142. The court pointed to a two-stage test. The claimant must firstly show facts from which the tribunal could, in the absence of an adequate explanation, conclude that the respondent had committed an unlawful act of discrimination. Once the tribunal has so concluded the burden then shifts to the respondent to prove that he did not commit an unlawful act of discrimination.
23. In the subsequent Court of Appeal decision of Madarassy v Nomura International PLC [2007] IRLR 246, Lord Justice Mummery said:–
“The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal ‘could conclude’ that on the balance of probabilities the respondent had committed an unlawful act of discrimination.
‘Could conclude’ in Section 63A(2) must mean that "a reasonable tribunal could properly conclude" from all the evidence before it.”
24. Lord Justice Mummery went on to say:-
“Section 63(A) does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant’s evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situation with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.
Such evidence from the respondent could, if accepted by the tribunal, be relevant as showing that, contrary to the complainant’s allegations of discrimination, there is nothing in the evidence from which the Tribunal could properly infer a prima facie case of discrimination on the proscribed ground.”
25. In the case of Laing v Manchester City Council [2006] IRLR 748, Mr Justice Elias said:–
“The focus of the tribunal’s analysis must at all times be the question whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is the end of the matter. It is not improper for a tribunal to say, in effect, “there is a nice question as to whether or not the burden has shifted, but we are satisfied here that, even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race”.”
26. The English authorities have been endorsed by the Northern Ireland Court of Appeal. In the case of Nelson v Newry and Mourne District Council [2009] NICA 24, Lord Justice Girvan referred to Madarassy. He then said:–
“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of adequate explanation, that the respondent has committed an act of discrimination.
In Curley v Chief Constable [2009] NICA 8, Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”
27. Harassment occurs where an employer, for a reason which relates to a person’s disability, subjects that person to unwanted conduct which has the purposes or effect of:-
(a) violating the disabled person’s dignity; or
(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for her.
The tribunal’s conclusions
Direct disability discrimination
28. The tribunal has considered the issues identified by the claimant and the law, as briefly set out in this decision. The tribunal is satisfied that the claimant did have a full opportunity to deal with any complaints made against her. There was no evidence to satisfy the tribunal that the claimant was required to work on a line on her own and, in particular, there was no evidence of the second respondent making complaints based on any such assertion. Similarly, the tribunal finds that the first respondent took the claimant’s complaints seriously and, indeed, dealt very reasonably with all the issues that they had to contend with. They attempted to facilitate the claimant and found alternative job positions for her and took no disciplinary action against her, despite the fact that they had made a finding that she had refused to obey a reasonable work instruction. Similarly, there was no credible evidence that the respondents ignored GP/OHN guidelines. Again, to the contrary, there were regular reviews carried out by Occupational Health and appropriate work assessments carried out. Lastly, the claimant complained that she lost money. The tribunal has found and the claimant, in her own evidence, conceded that she was owed no money by the first respondent. The claimant’s suspension and subsequent move to the Preparation Department was clearly made on the basis of the investigation and decision-making process conducted by the first respondent. The tribunal were not satisfied that the claimant had proved facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondents had committed an unlawful act of disability discrimination against the claimant.
Failure to make reasonable adjustments
29. The tribunal does not consider the fact that a Health & Safety assessment was not carried out before the claimant was transferred to the Preparation Department is in and of itself a reasonable adjustment. The risk assessment was subsequently carried out and the role was confirmed as suitable. However, that risk assessment does not constitute a reasonable adjustment in its own right, it is merely a tool to establish what reasonable adjustments may be required. Even if the risk assessment were seen to be a reasonable adjustment, the tribunal does not see what substantial disadvantage this placed the claimant at. The assessment was carried out shortly after the claimant commenced light duties. It confirmed that the job role was appropriate and set out the appropriate adjustments to the role. Furthermore, when the claimant did write to seek a move from the Preparation Department the respondents carried out further assessments and offered her a different role.
30. The second matter for which the claimant sought reasonable adjustment was in relation to a shift change in 2008. Ms Best, in submissions, pointed out that this had never formed part of the claimant’s case and no evidence was given by the claimant how she had suffered a substantial disadvantage in this regard. Ms Best also contended that the refusal of a shift change could constitute a failure to make a reasonable adjustment. The tribunal found that there was no evidence as to how she had suffered a substantial disadvantage in this regard. Indeed, the evidence of the claimant was that she was content in her workplace between 2005 to 2008 and also that her problems only commenced when the second respondent became her charge hand. The tribunal finds that there were no evidence before it for a failure to make a reasonable adjustment.
Harassment
31. The claimant set out various claims in relation to harassment. Firstly, she claimed the first respondent always gave her too much to do, so she regularly failed in her work. There was no evidence before the tribunal to substantiate this claim and indeed the evidence of the respondents’ witnesses was that the claimant was a good worker. Secondly, the claimant claims that the second respondent constantly picked on her, accused her of errors not made and criticised her, having a different standard for the target. Again, the tribunal does not feel that there was any coherent evidence placed before it of any of these matters. Similarly, there was no evidence that the Occupational Health Nurse doubted the claimant’s disability and accused her of faking it and the fourth issue then does not arise. The tribunal is satisfied that there was no evidence before it and no facts have been found which could justify a finding of harassment.
Unlawful deductions from wages
32. It is clear from the claimant’s own evidence and the facts, that the first respondent does not owe any money to the claimant. Indeed, the evidence before us was that the claimant was overpaid by the first respondent, who has not sought repayment as a gesture of goodwill.
The time-issue
33. The first respondent have accepted that the claimant’s claims are in time against it. However, it was contended that the claims against the second, third and fourth respondents are out of time. The last alleged act of discrimination was 17 September 2010. The claimant’s claim was presented to the tribunal on 2 March 2011. The claimant had presented an earlier claim in December 2010 but this had been rejected by the tribunal. Whilst the statutory time-limit of three months was extended in relation to the first respondent; the three month period cannot be extended by virtue of the grievance procedure as there is no requirement for a grievance to be lodged against a fellow employee. The tribunal finds that the claims against the second, third and fourth respondents are out of time and that it is not just and equitable to extend the time. No reasons were advanced by the claimant for the delay in making the claim other than the fact that a claim had been made but rejected in December 2010.
34. The tribunal therefore dismissed the claimant’s claims for disability discrimination and unlawful deductions from wages.
Chairman:
Date and place of hearing: 19 – 23 September 2011, Belfast
Date decision recorded in register and issued to parties: