Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/01720_10IT.html
Cite as: [2011] NIIT 1720_10IT, [2011] NIIT 01720_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1720/10

CLAIMANT: Stephen Fitzpatrick

RESPONDENT: Royal Mail Group Ltd

DECISION

The unanimous decision of the tribunal is as follows:-

(a) The respondent did not unlawfully discriminate against the claimant on grounds of the claimant’s disability.

(b) The respondent did not unlawfully discriminate against the claimant for a reason related to the claimant’s disability.

(c) The respondent did not fail to make reasonable adjustments in respect of the claimant, for the reason that the tribunal does not find that the respondent imposed a provision, criterion or practice which placed the claimant, as a person with a disability, at a substantial disadvantage in comparison with persons who were not disabled.

(d) The respondent is not guilty of victimisation of the claimant for the reason that the tribunal does not find that the respondent is guilty of victimisation in connection with the claimant having brought an earlier claim for disability discrimination against the respondent.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Mr I Savage

Mr P McKenna

Appearances:

The claimant was represented by Mr B Mulqueen, Barrister-at-Law, instructed by O’Hare and Company, Solicitors.

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

REASONS

1. The claimant’s claim in this matter was, firstly, that of unlawful direct discrimination on grounds of the claimant’s disability, secondly, discrimination for a reason related to the claimant’s disability, thirdly, failure to make reasonable adjustments in respect of the claimant, as the person with a disability and, fourthly, victimisation in connection with the claimant having previously brought legal proceedings against the respondent claiming unlawful discrimination. These claims were set forth in a claim form dated 4 July 2010 and were elaborated upon further in the course of the hearing and in submissions made upon conclusion. By response dated 5 August 2010, the respondent did not concede any of the foregoing claims and set forth reasons in respect of this. These reasons and issues raised were further elaborated upon in the course of the hearing and in submissions made on behalf of the respondent upon conclusion. It was not in issue that the claimant was a person with a disability and the respondent, in these proceedings, also conceded that the respondent had a duty to make reasonable adjustments under the statutory provisions in that regard these latter being referred to further in this decision.

THE ISSUES TO BE DETERMINED AND THE EVIDENCE

2. In view of the content of the claim on the claimant’s part and of the response thereto (and the foregoing concessions made by the respondent) the tribunal’s task was to determine the following issues:-

(a) Did the respondent directly discriminate against the claimant unlawfully on grounds of the claimant’s disability?

(b) Did the respondent discriminate against the claimant for a reason related to the claimant’s disability?

(c) Did the respondent fail to make reasonable adjustments in respect of the claimant, in that the respondent imposed a provision, criterion or practice which placed the claimant, as a person with a disability, at a substantial disadvantage in comparison with persons who were not disabled?

(d) Was the respondent guilty of harassment of the claimant in connection with the claimant’s disability under the circumstances of this case?

If the tribunal were to find in favour of the claimant in respect of one or more of the foregoing, the tribunal then was required to determine the matter of appropriate remedy.

3. The tribunal heard oral evidence from the claimant and, on behalf of the respondent, from Mr Cahal McEnhill. Upon conclusion of the hearing the tribunal had the benefit of written submissions and responses thereto and further replying submissions and responses from the respective representatives. The tribunal is grateful to the representatives for the assistance in reaching a determination gained from these submissions. The evidence given in the case was clear and forthright for the most part and the tribunal found there to be relatively few significant issues pertaining to credibility and consistency of evidence as regards either party to the matter.

THE TRIBUNAL’S FINDINGS OF FACT

4. On the balance of probability, the tribunal determined the following findings of fact material to the issues:-

(a) The claimant has a medical condition known as “chronic obstructive pulmonary disease” (hereinafter abbreviated to “COPD”). The existence of this condition and the effect of the condition upon the claimant was not in contention. As a result of COPD, the claimant suffers from difficulty and impairment in breathing on account of pulmonary obstruction. The symptoms of this condition are exacerbated by the claimant being present in a warm or stuffy atmosphere or by his being confined to a room with inadequate ventilation and supply of fresh air. Stress also exacerbates the symptoms of COPD in the claimant’s case.

(b) It was clarified, for the purposes of this case, that the respondent fully conceded that the foregoing symptoms and the existence of the condition of COPD as it affected the claimant, rendered the claimant a person with a disability for the purposes of the Disability Discrimination Act 1995, as amended, (hereinafter referred to as “DDA”).

(c) The claimant was employed as a Post Office worker at the respondent’s Enniskillen depot. There was little evidence in this case regarding the claimant’s precise duties. However, the work duties of the claimant, in broad terms, gave rise to no material issues. What, however, was very much in contention was a specific issue in regard to what were known as “Work Time Listening and Learning sessions” (hereinafter abbreviated to “WTLL” sessions).

(d) It is perhaps appropriate at this point to refer to some earlier difficulties experienced by the claimant at work. These particular work difficulties resulted in a claim by the claimant being pursued to an Industrial Tribunal in Northern Ireland. In a tribunal decision promulgated on 21 October 2008 (hereinafter referred to as “the earlier decision”) the tribunal on that occasion unanimously determined that the respondent had unlawfully discriminated against the claimant on grounds of the claimant’s disability in that the respondent had failed in the respondent's duty to make reasonable adjustments under DDA. The tribunal in the earlier decision made an award of compensation to the claimant in respect of injury to feelings resulting from a finding of unlawful discrimination and the treatment accorded to the claimant by the respondent. The subject matter of that finding of unlawful discrimination related to determined facts whereby the claimant was required by the respondent to attend a WTLL session in June of 2007. On that occasion the claimant was required to sit immediately outside the door of the room in the work premises where a WTLL session was taking place. Members of the respondent’s workforce made comments. Such comments caused the claimant upset, embarrassment and humiliation. The point at issue determined in the earlier decision was whether the respondent had made a reasonable adjustment in respect of the subject matter of these WTLL sessions. An adjustment to working practices was ultimately implemented as far as this affected the claimant. From August 2007 onwards the respondent put into place a provision, that being found to constitute an adjustment, whereby the claimant would not be required to attend WTLL sessions but, in place of these, the claimant was to receive a paper briefing.

(e) After this change in working practices had been implemented from August 2007 onwards, the claimant’s employment with the respondent appears to have been unremarkable. However then particular events occurred and the present matter now comes before this tribunal. The background to the more recent events was that these WTLL sessions continued to be held in the respondent's Enniskillen premises. The venue for the WTLL sessions was normally the kitchen or canteen where there was located a television and a DVD player, which equipment was used for imparting information in the course of the WTLL sessions. These sessions, it appears, lasted for about thirty minutes each. The WTLL sessions were required to be attended by all of the respondent’s staff who were available and present on the work premises, the exception being the claimant who, as mentioned, from August 2007 was not required by management to attend the sessions.

(f) In May of 2010 the respondent's management had particular concerns regarding an issue referred to in the evidence by the description or designation of, “panellists briefing”. This “panellists briefing” issue related to a system devised by the respondent for checking and quality assuring postal deliveries. The system engaged a number of persons, known as “panellists”, whose function, exercised with anonymity, was to report back to the respondent concerning the quality of the service conducted by the respondent’s operatives. Management made a decision to address what were regarded as significant issues affecting the workforce at this time by means of a series of briefing sessions.

(g) From an inspection of certain e-mails circulated amongst members of the respondent’s management at the material time (that is to say in or about mid-May 2010) the tribunal notes that senior managerial briefings were communicated to Operational Managers. These briefings conveyed what the respondent’s senior management regarded as being an important message about maintaining the anonymity of panellists. When seen in proper context (as was explained in the course of the respondent’s evidence) the importance of the matter related to issues of considerable significance concerning adherence to the licensing conditions which enabled the respondent to carry on its activities. It was made clear by senior management in these briefings that it was essential that the respondent’s middle managers were to read and understand the briefings and then to “cascade” the key messages contained in the briefings to their respective working teams. It was also specified as being important that the managers must “capture” (in other words record) the names of employees briefed. The respondent’s middle management, including Mr McEnhill who was the claimant’s manager, understandably regarded this as being a serious and significant issue. In that context, Mr McEnhill put into place arrangements for the claimant to attend a meeting in late May 2010. The meeting in question took place on 24 May 2010.

(h) The claimant’s evidence was that he attended this 24 May 2010 meeting with great reluctance, believing it to be an attempt on the part of Mr McEnhill to reintroduce WTLL session attendance, from which the claimant had been excused from August 2007. For his part, Mr McEnhill regarded the meeting as constituting an essential briefing session required to be undertaken as part of the managerial function insofar as this affected all employees, without exception, including the claimant. In arranging the meeting, Mr McEnhill did not regard the meeting as constituting in any way a WTLL session.

(i) The meeting of 24 May 2010 was held in the training room at the respondent’s Enniskillen premises. It was by all accounts a very warm day. The door at the end of the training room was left open. The claimant attended the meeting together with a fellow employee, Mr Jamison. Mr McEnhill was the only other person present. The claimant was not expressly required by Mr McEnhill to position himself at any particular location within the room. The claimant, it seems, was free if he wished to sit adjacent to the open door in order to avail of any ventilation from outside the room by that means. Regarding the reason for Mr Jamison’s attendance, that is not entirely clear to the tribunal. There was no specific evidence adduced at hearing concerning Mr Jamison having a disability, either a disability of the same nature as the claimant, or indeed any disability at all. The exact duration of the meeting was not made fully clear from the evidence but the tribunal believes that the meeting in all probability subsisted for something between fifteen and twenty minutes and no longer.

(j) The claimant did not voice any objection to attending the meeting. The reason stated by him in evidence was that he was afraid of losing his job if he did not attend. He stated that he was concerned that he could be medically retired on account of illness. The topics covered by Mr McEnhill in the course of the meeting did not relate purely to the “panellists” issue; the meeting also addressed other matters. The evidence was that discussions also took place in relation to, for example, procedures concerning road traffic accidents, work route assignments and some other work-related matters. When questioned in the course of the tribunal hearing about this, Mr McEnhill confirmed that the subject matter of the discussions did relate to more than just the “panellists” issue.

(k) There was no evidence that the claimant might have been prevented or impeded in any manner in getting up and leaving the meeting if he were to be experiencing any distress or if he was having any difficulty in breathing at any time throughout the course of the meeting. The claimant's evidence to the tribunal was that he felt that he could not leave the meeting. However, the claimant did not make any such request. In assessing the material evidence, the tribunal had some difficulty in understanding and in accepting that there was any objective basis for the claimant’s subjective understanding or concern in that regard as expressed by him to the tribunal.

(l) Mr McEnhill was required to obtain the signatures of all persons who had been briefed. He apparently did so in the case of the claimant. However, the document consisting of the list with the claimant’s signature placed upon this could not be located for the tribunal hearing.

(h) There was a paper briefing prepared in respect of at least part of the subject matter of the 24 May meeting with the claimant. Mr McEnhill, in his evidence to the tribunal was uncertain whether or not the 24 May meeting covered all or only part of the issues contained in that paper briefing. There was no evidence as to the proportion of the time taken up by the meeting that was spent discussing the “panellists” issue as a discrete matter and the proportion of time devoted to other issues addressed at the meeting. The claimant confirmed in his evidence that the meeting addressed the “panellists” issue together with issues such as road traffic accident procedures, postal collections and the filling of a particular postal delivery route vacancy. Mr McEnhill claimed that he did provide a copy of the paper briefing to the claimant on the Thursday of that week; however, the claimant was adamant that he did not receive this. From the evidence it was not possible to reach a definite determination the facts in that respect. However, that is not central tothe determination in this matter.

(i) The claimant stated in his oral evidence that during the course of the meeting he was observed through the open door of the meeting room by other members of the respondent’s workforce and that the claimant believed that these persons were making fun of him. The tribunal had regard to the nature and quality of the claimant’s evidence and the other evidence in this regard. The tribunal noted the improbability that any of the respondent’s workforce passing the location would have had any idea as to the nature and purpose of the meeting unless they had been otherwise specifically informed as to the reason for the meeting. Indeed the tribunal was uncertain if any persons passing could have clearly observed the identity of anyone present in the room. Assessing all of this, the tribunal is of the view that there is no substance to the claimant’s suggestion. Because of that assessment, the tribunal does not find that there is any objective evidence that the claimant was subjected to ridicule, embarrassment, or other difficulty on account of the circumstances surrounding the meeting connected in any manner with the claimant being observed by other members of the respondent’s workforce. This finding by the tribunal is therefore at odds with what the claimant had endeavoured to suggest had transpired in the course of the hearing of the matter by the tribunal.

(j) The claimant’s further evidence to the tribunal was that his attendance at the 24 May 2010 meeting caused him considerable distress and difficulty in connection with his COPD condition. Examining the facts of this contention, there is a little doubt that the claimant was positioned in proximity to an open doorway. There is also little doubt that the claimant, if he had wished to do so, could have made a request to leave the meeting room and there is no evidence suggesting that such a request, if properly made on the claimant's part, would have been refused by Mr McEnhill. Whilst it was certainly a warm day, any distress or difficulty that might have been experienced by the claimant in connection with his attendance at the meeting was not so much caused by the physical nature of, or circumstances pertaining to, the premises where the meeting was held, nor by the claimant’s location or positioning within those premises. If there was any difficulty experienced in connection with the claimant's COPD, which the claimant has stated there was, any such could only have arisen not from the physical arrangements made for the meeting but rather on account of the suggested personal anxiety and concern on the claimant’s part at a meeting taking place with Mr McEnhill under these particular circumstances.

(k) As the meeting was quite brief in duration and as from the evidence the claimant had not been informed in advance that the meeting would be dealing with matters other than the “panellists” issue, if one of then assumes that the discussion of the “panellists” issue, due to the importance of that particular issue, assumed a significant or substantial proportion of the meeting, if one then further assumes that this topic was addressed from the outset and for a substantial part of the meeting, it follows that the claimant’s stated concern at the meeting being or turning into a WTLL session could not have arisen until the meeting was at least partially concluded. Scrutinising all of this objectively, the claimant’s subjective impression that the meeting was what he would have categorised as being a WTLL session could not have arisen until some stage either at mid-point or more probably towards the conclusion of the meeting. Any stated anxiety on the claimant's part must therefore have arisen or emerged towards the conclusion or indeed possibly even at or after the end of the meeting.

(m) Under cross-examination by the respondent’s representative, it was put to the claimant that the difficulties earlier experienced in 2007 in regard to his attendance at the WTLL sessions in the canteen were caused by the stuffy and overheated atmosphere, with some 30-35 persons present in a somewhat confined space. It was further suggested to the claimant that, in contrast, any training sessions attended by the claimant in the training room were conducted in a very different atmosphere. The respondent’s evidence, which was not contradicted by the claimant, was that the claimant in fairly recent times had attended a number of training sessions in the training room, for example certain training sessions arranged with a workplace coach, Mr Beattie. These training sessions had subsisted for periods of up to 30 minutes at a time. The claimant had been readily able to attend these training sessions, which were normally conducted on a one-to-one or one-to-two basis, without undue difficulty. The claimant under cross-examination did readily concede that the source of the earlier problems experienced concerning the WTLL sessions did not exist as far as these training sessions were concerned.

(n) After the events of 24 May 2010, the claimant was aggrieved. By letter dated 28 May 2010 the claimant wrote directly to Mr Michael Kennedy, the Respondent’s Regional Operations Director. In this letter the claimant complained that on 24 May 2010 he had been called to a WTLL session by his manager, Mr McEnhill. He complained that Mr McEnhill had told him to go to the WTLL session about something that Mr McEnhill said was vitally important and that he had gone because Mr McEnhill had made it sound so serious and the claimant was afraid of him. He stated that the meeting turned out to be just about ordinary things and that there had been nothing said that could not have been put on a bit of paper for him. He had contacted the Equality Commission and was attempting to resolve things before taking legal action. He stated that he believed this treatment was victimisation and unlawful discrimination on grounds of disability. Mr Kennedy provided to the claimant a holding response to the effect that he had received a response from Mr McEnhill and that Mr Kennedy would be in touch further with the claimant. However, the claimant then proceeded to institute his tribunal claim in this matter on 4 July 2010, with that claim being received by the Office of Tribunals on 6 July 2010.

(o) The tribunal did not need to determine any other findings of fact for the purposes of reaching its determination in this case.

THE APPLICABLE LAW

5. The claimant’s claim in this case relates to unlawful discrimination concerning the claimant’s disability. The relevant law is contained within the Disability Discrimination Act 1995, as amended (“DDA”). The material provisions are as follows in relation to each of the claimant’s claims:-

(i) Disability-related discrimination

Section 3A

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

(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that does not or would not apply; and

(b) he cannot show that the treatment in question is justified;

…

(3) Treatment is justified for the purpose of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the case and substantial.

(ii) Direct disability discrimination

Section 3A:-

…

(4) But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).

(5) 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 his abilities are the same as, or not materially different from, those of the disabled person.

Section 4:-

…

(2) It is unlawful for an employer to discriminate against a disabled person whom he employs –

(a) in the terms of employment which he affords him;

…

(d) by dismissing him or subjecting him to any other detriment.

(iii) Failure to make reasonable adjustments

Section 3A:-

…

(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

Section 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 … having that effect.

In relation to direct discrimination under DDA the less favourable treatment requires to be on the ground of the disabled person’s disability. “Less favourable” requires a comparison to be made. The comparator may be either actual or hypothetical, that being a person who does not have any disability or a person who does not have that kind of disability. The relevant circumstances must be the same or not materially different from those of the disabled person (see Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 per Lord Nicholls).

In regard to disability-related discrimination under DDA, the decision of the House of Lords in the case of London Borough of Lewisham v Malcolm [2008] IRLR 700 has provided clarification of the law which has been followed in England in decisions of the Employment Appeal Tribunal. In Malcolm the majority in the House of Lords held that the relevant comparison in a claim of disability-related discrimination is between the claimant and an individual without the relevant disability. The practical effect of the accepted proper application of Malcolm appears to be that, if any claimant fails in a claim for direct disability discrimination, any such claimant is unlikely to also succeed in a claim for disability-related discrimination.

In regard to the duty to make reasonable adjustments under DDA Section 4A in the case of Environment Agency v Rowan [2008] IRLR 20, the Employment Appeal Tribunal in England provided guidance as to how the tribunal might determine whether the duty to make reasonable adjustments had arisen and whether it had been breached. The tribunal must identify:-

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

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

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

In regard to the matter of burden of proof, Section 17A of DDA provides:-

(1C) Where, on the hearing of a complaint…. the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act.

The English Court of Appeal, in the case of Igen v Wong [2005] IRLR 258 considered statutory provisions similar to the foregoing provisions of DDA (regarding the burden of proof in sex discrimination) and generally approved guidelines set out in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332. The Northern Ireland Court of Appeal has approved the guidance in Igen in the cases of McDonagh v Royal Hotel Dungannon [2007] NICA 3 and Nelson v Newry & Mourne District Council [2009] NICA 24. In summary, the tribunal is required to conduct a two-stage decision-making process. The first stage requires the complainant to prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent had committed the unlawful act of discrimination complained of. Once the tribunal has so concluded, the respondent has to prove that the respondent did not commit the unlawful act of discrimination. Lord Nicholls, in Shamoon, clarified this two-stage approach required of tribunals in considering, firstly, whether the claimant received less favourable treatment and the appropriate comparator (an actual or a hypothetical comparator). Secondly, the tribunal must consider whether the less favourable treatment was on the proscribed ground. However, it was observed that fruitless over analysis can be avoided by concentrating on the reason why the claimant was treated as he or she was. The appropriate question regarding treatment accorded is whether it was for the proscribed reason or for some other reason. If the latter, the application fails; if the former, there would normally be no difficulty in deciding whether the less favourable treatment was on the proscribed ground and accordingly constituted less favourable treatment than the treatment accorded to others. Thus in many cases the “less favourable treatment” issue cannot be resolved without deciding the “reason why” issue at the same time.

In Madarassy v Nomura International PLC [2007] IRLR 246 the Court of Appeal in England clarified that the burden of proof does not shift to the employer simply on the claimant establishing a difference in status and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal could conclude that on balance of probabilities the respondent had committed an unlawful act of discrimination. Thus the tribunal needs to consider all of the evidence relevant to the discrimination complaint, such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment and evidence as to whether the comparison being made by the complainant is of like with like.

In regard to the matter of discrimination by way of victimisation the relevant provisions of DDA are contained in Section 55 of DDA. Victimisation occurs when, in the relevant circumstances under DDA, a person is treated less favourably than others because that person has done one of the ‘protected acts’. The burden of proof provisions mentioned above also apply to victimisation claims. In conducting any necessary comparison, one compares the treatment accorded to the claimant who has engaged in the ‘protected act’ and the treatment accorded (or that might be accorded in a hypothetical comparison) to other employees who have not engaged in the ‘protected act’ (see Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830). The question ought to be explored as to why the alleged discriminator acted as he or she did. Lord Nicholls in Nagarajan v London Regional Transport [1999] IRLR 572 said that the victimisation could be made out if the “protected ground” had a significant influence on the outcome. In Igen v Wong the word “significant” was interpreted as an influence which is more than trivial.

As the House of Lords in Archibald v Fife Council [2004] IRLR 651 made clear, DDA has a different type of regard to the differences between persons with a disability and others when contrasted with other statutory provisions in respect of unlawful discrimination. Unlike other statutory provisions (for example race discrimination which requires persons of different racial or ethnic origins to be treated in the same manner) DDA requires reasonable adjustments to be made to address the particular needs of disabled persons. This essentially entails elements of more favourable treatment on grounds of a person’s particular disability. In Morse v Wiltshire County Council [1998] IRLR 352 the Employment Appeal Tribunal in England identified that the tribunal must first decide whether the provisions impose a statutory duty upon the employer in the circumstances of any particular case. If such a duty is found to be imposed, the tribunal must then determine whether the employer has taken such steps as are reasonable in the circumstances of the case for the employer to take in order to prevent the provision, criterion or practice, or physical feature of premises identified, placing the person at a substantial disadvantage in comparison to other persons. This exercise includes consideration of whether the employer could reasonably have taken any steps, including any set out in the relevant provisions. Further clarification is provided in Environment Agency v Rowan [2008] IRLR 20 with sequential steps being therein identified (as mentioned above).

THE TRIBUNAL’S DETERMINATION

6. In this case the tribunal has noted and has fully taken account of the helpful submissions furnished in writing on the part of the respective representatives and of the replying submissions thereto. The tribunal notes that it is conceded by the respondent both that the claimant is a person with a disability (in this case COPD) and furthermore, that a duty to make reasonable adjustments under Section 4A of DDA arises. The subject matter of this case arises against the backdrop of earlier difficulties encountered by the claimant at work which culminated in a successful claim for unlawful discrimination being pursued by the claimant to a tribunal. This claim resulted in a finding of discrimination by the tribunal connected with the respondent's determined failure to make reasonable adjustments; there was an award of compensation. A significant feature in the earlier decision was the issue of WTLL sessions and specific difficulties encountered by the claimant in his being required to attend WTLL sessions for a period of time. Then a management decision was taken to discontinue that requirement with effect from August 2007 that the claimant had to attend these WTLL sessions. Thereafter the claimant received a paper briefing instead of attending these sessions.

7. Nothing of significance to this tribunal was encountered by the claimant after this until 24 May of 2010 when the claimant was required to attend a meeting with Mr McEnhill. In submissions on behalf of the respondent it is strenuously argued that this meeting cannot in any manner be properly classified as being a WTLL session. The respondent’s further submission is that, even if the meeting were to be so accurately described as a WTLL session, that is neither here nor there, for the reason that this description or classification is not relevant to the essential focus of the tribunal. The submission is that the focus must be directed to the nature of and the circumstances surrounding the meeting of 24 May 2010 and whether or not any evidence of failure on the part of the respondent to make reasonable adjustments in accordance with the statutory provisions emerges from such circumstances. Further, the focus of the tribunal must be directed to a determination of whether there was direct discrimination on grounds of disability, or disability related discrimination, or victimisation in connection with the claimant's earlier discrimination claim having been pursued.

8. As mentioned above (see Morse v Wiltshire County Council and Environment Agency v Rowan), taking account of that latter submission and given that such a duty arises in this case, the tribunal’s initial focus in connection with the duty to make reasonable adjustments must be upon the identification of the provision, criterion or practice applied by or on behalf of the employer (or the physical feature of the premises). The tribunal must also identify the statutory comparator. Further, the tribunal must identify the nature and extent of the substantial disadvantage claimed to have been suffered by the claimant.

9. In the respondent's submissions, it is contended that the “arrangements” in this matter are quite easy to define. Such arrangements are simply the requirement that the claimant was to attend a one to two meeting in the training room. It is submitted that the importance of defining the “arrangements” can be observed from the case of Smith v Churchills Stairlifts Plc [2005] EWCA Civ.1220, [2006] IRLR 41 where Lord Justice Maurice Kay in the Court of Appeal in England held that the relevant arrangements must be first defined before one then moves on to the comparative exercise. For the claimant, it is not disputed in submissions that the “relevant arrangements” are the requirement that the claimant was to attend the meeting of 24 May 2010.

10. The tribunal accepts the agreed submission in that regard. Thus the tribunal may properly proceed to conduct an examination of whether those arrangements (the requirement to attend a meeting) in the circumstances of this case, placed the claimant at a substantial disadvantage in comparison with persons who are not disabled (or who did not have the same disability at the claimant). For the respondent, it is thus submitted the perfect statutory comparator is Mr Jamison, the third person present at the meeting. There is no evidence that Mr Jamison at the time was a person with a disability (or a disability of the same nature as the claimant). For the claimant, it is contended that the claimant believed that the reason that Mr Jamison attended the meeting was that Mr Jamison too had a disability. In the alternative, it is submitted that the claimant was not so limited in his choice of comparator.

11. The respondent’s representative further invites the tribunal to note the stark contrast between the routine WTLL meetings and the 24 May 2010 meeting attended by the claimant. The routine WTLL meetings were held in the canteen with a seeming lack of good ventilation, with the presence of heat-generating electrical equipment, and with the presence of a large number of work personnel. In contrast, the meeting of 24 May took place in the training room. The door was left open in order to permit good ventilation. There was no heat-generating electrical equipment. There was only one other member of staff present together with the claimant and Mr McEnhill. The claimant has conceded that he has had no difficulty in attending routine training sessions on a one-to-one or a one-to-two basis in the training room. Thus the respondent submits that it is, as it was put in the submissions, “ludicrous” for the claimant to contend that these specific circumstances placed him at a substantial disadvantage, taking account of the statutory considerations. The respondent contends that whatever descriptive badge or label one might put on the meeting (“WTLL meeting” or otherwise) the tribunal must have regard to the reality of the circumstances and the arrangements. The tribunal must have regard to any comparative disadvantage at which the claimant was placed in comparison to any comparator for the statutory purpose. One final contention on the respondent's part is worthy of mention; this is that the claimant's case, so it is argued, relates to the earlier agreement that the claimant would not be required to attend WTLL sessions. The claimant argues that his being required to attend a further WTLL session on 24 May, breaches the earlier agreement. However, the respondent highlights that this is not a breach of contract case but rather the case which has been pursued by the claimant is one grounded upon allegations of unlawful discrimination.

12. Examining all of the facts and circumstances of the matter, the tribunal must have regard to the alleged substantial disadvantage and to the issues of material fact in respect of this. The claimant has contended in his evidence that he was anxious and distressed as a result of the circumstances of the meeting. The tribunal has above expressed the tribunal's difficulty in understanding how and why that could properly have been the case. This is so for the reason that the claimant was apparently not aware of the full content of the topics to be covered in the meeting nor aware of the course the meeting was to take until the meeting was at least partly concluded. It is noted that the meeting was relatively brief in duration. Whilst the claimant might perhaps have felt aggrieved from the point when he first comprehended that the topics covered by Mr McEnhill were extending beyond the “panellists briefing” issue into other work-related matters, which might otherwise have been properly included in a paper briefing, as the tribunal sees it the claimant would have had no reason to categorise the meeting as being a WTLL session prior to that point. The tribunal fully accepts the respondent’s submission that, regardless of the classification or description of the meeting, the core issue is whether or not the claimant was placed at a substantial disadvantage on account of the material circumstances under which the meeting was conducted. The question is whether or not the respondent failed in its duty, freely accepted as being imposed upon it, to make reasonable adjustments to account for the claimant’s disability. In regard to the issue of substantial disadvantage in regard to a comparator, the only actual comparator to which the tribunal's attention has been drawn is Mr Jamison. There was no evidence that Mr Jamison had COPD or any disability. In respect of the appropriate statutory comparator, in submissions the claimant's submission is that such a comparator is any person who does not have the claimant's disability, that is to say COPD. For the respondent, it is argued that for a comparison to be meaningful, the appropriate comparator (following Lord Justice Maurice Kay in Smith v Churchills Stairlifts Plc) must be taken from a limited class of persons who are not disabled, which, on the facts of this case, means a person who was required to attend a meeting in the training room who was not disabled, and such a person would be Mr Jamison, so it is submitted. On the facts as determined, the tribunal cannot find that the claimant was placed at a substantial disadvantage under these particular circumstances in respect of either an actual or a hypothetical comparator.

13. Considering the claimant’s other claims, these being claims of direct discrimination on grounds of disability and disability related discrimination and, furthermore, the claim of victimisation arising from the claimant having pursued the earlier tribunal claim, the tribunal does not need to go into substantial detail for the reason that similar observations may properly be made upon the material facts. In applying the two-step approach required of tribunals (as identified for example in Shamoon) the tribunal considered, firstly, whether the claimant had received any less favourable treatment in comparison to either an identified or a hypothetical comparator. In this regard the tribunal had particular regard to an examination of the essential reason of why (per Shamoon) the claimant was treated as he had been by the respondent. It is entirely clear to the tribunal that the claimant was properly required by managerial direction to attend an important meeting to discuss essential areas of concern which had to be addressed directly and personally with all members of the respondent’s workforce. Management was quite entitled fairly and properly to exercise managerial prerogative and discretion in that regard to require the attendance of the claimant at a meeting regarded as being of significance and importance.

14. In the foregoing material respect the claimant was treated in a manner no different to the other members of the respondent's workforce who were also required to attend managerial briefings. Any difference between the majority of the workforce and the claimant in the precise manner in which the claimant's briefing was conducted and the surrounding circumstances of the meeting, as between the claimant's case and the circumstances of other employees who likewise were required to attend meetings concerning the “panellists briefing” issue, arose in pursuance of the perfectly legitimate aim of ensuring that the meeting was arranged in circumstances which were designed properly to address the claimant's disability and in particular the claimant's breathing difficulties arising from COPD. Special arrangements were thus made for the claimant to attend the May 2010 meeting in an environment which had quite evidently caused no difficulty to the claimant in regard to the various training sessions which the claimant had attended in the training room. In contrast, the other members of the workforce attended the briefing session or sessions in circumstances which were quite different to those provided to the claimant and to Mr Jamison. Applying thus the burden of proof provisions which are contained within section 17A of DDA, the tribunal's determination is that the claimant has failed to prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has acted in a way which is unlawful. Thus the burden of proof does not shift to the respondent under these circumstances.

15. Examining all of this, the tribunal finds that there is no basis or substance in the claimant's claims of unlawful discrimination alternatively set forth in the claim, in connection with the material facts of the matter. Under these circumstances, the claimant’s claims in their entirety are dismissed by the tribunal, without further order.

Chairman:

Date and place of hearing: 3 and 4 February 2011, Belfast.

Date decision recorded in register and issued to parties: