Industrial Tribunals Northern Ireland Decisions

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Cite as: [2011] NIIT 5477_9IT, [2011] NIIT 05477_09IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 5477/09

CLAIMANT: Pearse Sharkey

RESPONDENT: Nacco Materials Handling Ltd

DECISION

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

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mr A Henry

Mr P McKenna

Appearances:

The claimant was represented by Mr G O’Neill, of the Citizens Advice Bureau.

The respondent was represented by Mr P Bloch, of Engineering Employers Federation.

Title

1. The correct name for the respondent appears to be:-

Nacco Materials Handling Ltd;

and the title of the action is amended accordingly.

Background

2. The claimant was employed for approximately 23 years by the respondent before being selected for redundancy on 16 March 2009. He had suffered from a medical condition which had been provisionally diagnosed as temporal arteritis. He alleged that he had been, at the relevant times, disabled for the purposes of the Disability Discrimination Act 1995 (‘the 1995 Act’) and that the respondent had unlawfully discriminated against him in the redundancy selection procedure. He also argued that the redundancy selection procedure had been, in any event, unfair and that he had been unfairly dismissed.

Issues

3. During a Case Management Discussion on 30 June 2011, the parties agreed the following issues which were to be determined by the tribunal:-

(i) Whether or not the claimant was disabled within the definition provided by the disability discrimination legislation?

(ii) If the claimant was disabled, was he directly discriminated against on the grounds of his disability? In particular, did the respondent deal appropriately with two periods of absence of the claimant when calculating the redundancy scores?

(iii) Did the respondent have a potentially fair reason for dismissing the claimant, namely redundancy? The claimant accepts that there was a redundancy situation in the respondent’s business; but asserts that the application of the redundancy procedure, as it was applied to him, was unfair in two respects:-

(a) there is an allegation of bias on behalf of the one of the selection panel whose son was not selected for redundancy; and

(b) there is an apparent miscalculation of the scores of the claimant within the redundancy process.

Relevant findings of fact

4. The claimant had been admitted to hospital in early February 2007 with a ‘febrile illness’ which was then provisionally diagnosed as temporal arteritis, which is an inflammatory condition related to arteries in the brain. That provisional diagnosis does not seem to have been positively confirmed at any stage. However, no alternative diagnosis appears to have been put forward at any point in the medical reports to which the tribunal was referred.

5. A consultant’s report completed in respect of 16 February 2007 recorded that the claimant stated that he ‘feels much better’ and that ‘aches and pains have almost completely settled’. The claimant was taking 60mg of Prednisone, a steroid, at that point. The next hospital report was in respect of 9 March 2007. It stated that a biopsy had revealed ‘no evidence of inflammatory changes with normal artery architecture’. It stated the claimant’s main complaint was of ‘proximal muscle wasting secondary to his steroid therapy’. It stated further that ‘he has no other symptoms to suggest an arteritic process’. His daily dosage of Prednisone was reduced to 30mg.

6. The next hospital report was in respect of 6 April 2007. It stated that ‘Pearse feels his muscles are rather weak. He had no headache until the last couple of days when he had some pain behind his right ear and in his neck. This was very quickly settled by Paracetamol’. His daily dosage of Prednisone was reduced to 20mg at this stage.

7. The next documents to which the tribunal was referred were two letters signed by Dr Philip McCrea, an occupational health specialist acting on behalf of the respondent, both dated 2 May 2007. The first letter was from Dr McCrea to the consultant who was treating the claimant. Dr McCrea stated ‘Pearse advises me that he notices little or no improvement and still continues to have daily neuralgia type pain above the left ear but denies any other symptoms’. In the second letter, which was a report by Dr McCrea to the respondent’s HR Department, Dr McCrea stated that the claimant ‘tries to keep exercising by walking around Craigavon Lakes on a daily basis, a total of around four miles and also partakes in housework and cooking. He describes his general health as good …’. Dr McCrea also recorded that the claimant was ‘keen to get back to work’.

8. The next hospital report was in relation to 18 May 2007. It records that the claimant ‘felt groggy last week’. The daily dosage of Prednisone was increased back up to 30mg. It also recorded that he was keen to get back to work. The consultant stated ‘I will be recommending that he is fit to go back to work provided that he is not required to stand continuously’.

9. The next document to which the tribunal was referred was a letter dated 23 May 2007 from the consultant, Dr Ritchie, to Dr McCrea, occupational health specialist in reply to Dr McCrea’s letter of 2 May 2007 (see Paragraph 7 above). It stated ‘you say in your letter that he has little or no improvement. That is not actually true. He had a very marked initial improvement with his first dose of steroids, in that his blurring vision cleared, his temperature and his aches and pains settled. I would have to admit, however, he has not gone into full remission. …’. Dr Ritchie further stated ‘at present he feels he could cope with all aspects of his job apart from the long periods of standing involved’.

10. The next hospital report related to 29 June 2007. It recorded ‘he currently feels well. He has been back to work and had an assessment as a forklift truck driver. He wants to get back to work full-time soon. I have advised him to reduce his Prednisone down to 25mg daily from start of July’.

11. The next hospital report related to 31 August 2007. It states that ‘Mr Sharkey is now back at work and is doing well. He feels much better and he has no ocular symptoms, no floaters … ‘. The claimant was advised to decrease his Prednisone to 20mg daily from October 2007.

12. The next hospital report related to 16 November 2007. It stated ‘he is doing very well. He is coping with work and is asymptomatic on Prednisone 20mg od’. He was advised to further reduce his Prednisone to 15mg daily from December 2007.

13. The next hospital report related to 8 February 2008 and stated ‘he is doing reasonably well. He has no symptoms to suggest of any recurrence of his arteritis’. His dose of Prednisone was reduced to 10mg daily.

14. The next hospital report related to 2 May 2008. It stated ‘headaches have largely settled, however they occasionally occur. They are usually short-lived and do not interfere with daily living. He has very minimal visual changes’.

15. The next hospital report related to 5 September 2008. It stated ‘he feels reasonable at present’.

16. The next hospital report related to 19 December 2008. It stated ‘symptomatically he appears well’.

17. The next hospital report related to 6 March 2009. It recorded no adverse symptoms.

18. The next hospital report related to 12 June 2009. It stated ‘he is feeling quite well. He is due to move a new job which involves shift work’. ‘He was doing so well that he thought he would reduce himself to 7mg at the beginning of June … .’

19. The next hospital report related to 4 September 2009. It recorded ‘he is doing well and has remained asymptomatic’.

20. The next hospital report related to 26 February 2010. It states ‘since decreasing his steroids there have been no headaches’. It recorded no adverse symptoms.

21. The next hospital report related to 11 June 2010. It stated ‘he has had no symptoms suggestive of any relapse’.

22. The final two reports related to 19 November 2010. They recorded that he was now off steroids and that he had had no further symptoms. They recorded that his diagnosis was ‘presumed temporal arteritis’. It stated that this diagnosis had never been totally confirmed.

23. It was common case that the respondent company was faced with a genuine redundancy situation in 2009 and that it had needed to reduce its workforce significantly.

24. There had been a previous redundancy exercise in 2008. Following consultations with the relevant trade union, Unite, the weighting to be applied to the selection criteria, previously agreed and applied in 2008, were modified for use in the 2009 exercise.

25. Three superintendents (middle managers) assessed the claimant under each criterion. The first criterion was ‘skills’. That criterion was weighted at 10%. One mark was awarded if the relevant employee had skills which were limited to two or less operations at the right quality and output, two marks where the employee’s skills were limited to three operations at the right quality and output, three marks where the employee’s skills could be used on four operations at the right quality and input and four marks where the employee’s skills were used regularly on five operations at the right quality and output, or defined jobs which required extended training or experience.

Under this criterion the employee received the highest mark which had been awarded to him by any assessor. It was ‘best out of three’.

The claimant was awarded three marks under this criterion, ie that his skills had been assessed as being capable of being used on four operations at the right quality and output. In cross-examination the claimant could not point to any error in this calculation. He was not able to say or even to suggest that his skills were such that they were ‘used regularly on five operations at the appropriate quality and output’.

26. The second criterion was ‘adaptability’ which was weighted at 10%. One mark was awarded where the employee adapts to change but needs coaxing or coaching, two marks where the employee adapts to most situations given but takes time to do so, three marks where the employee adapts easily to most situations and four marks where the employee adapts to any situation very quickly.

Under this criterion the employee received the average mark awarded by the assessors.

The claimant was awarded an average score of 1.3 under this heading. He had been awarded two points by one assessing superintendent and one mark by each of the two other assessing superintendents.

27. The third criterion was ‘teamwork initiative’ which was weighted at 15%. Under that heading the employee was awarded one mark if he needed ongoing monitoring and instruction, two marks if he seldom showed signs of using his own initiative to support team working, three marks if he used his own initiative regularly, but output needed to be monitored and four marks if the employee demonstrated good initiative regularly used to support efficient teamwork. Under this criterion the employee received an average score. The claimant was awarded an average score of 1.6. He had been awarded one mark by one of the assessing superintendent and two marks by each of the two other assessing superintendents.

28. The next criterion was ‘absence occasions’, ie numbers of overall absences from work, which was weighted at 25%. One mark was awarded for six or more occasions of absence, two marks for five occasions, 2.5 for four occasions, three for three occasions, 3.5 for two occasions and four for one occasion and five for no occasions of absence during the relevant period. The claimant was recorded as having five occasions of absence and was therefore given two marks under this heading.

29. The next criterion was ‘absence days’, ie the number of days absent, which was weighted at 10%. Under this heading, the employee received one mark for 20 or more days absence, two marks 13 – 19 days absence, three marks for 7 – 12 days absence, four marks for 1 – 6 days absence and five marks for 0 day absence during the relevant period. The claimant received one mark under this heading given his lengthy periods of absence due to his illness.

30. The next criterion was ‘misconduct’ which was weighted at 10% of the total. An employee received no marks for a Final Warning, one mark for a Written Warning, two marks for a Verbal Warning and five for ‘No Warnings in Place’. The claimant received the maximum mark of five under this heading.

31. The final criterion was ’length of service’ which was weighted at 20%. An employee received one mark for less than 1 year’s service, two marks for 1 – 3 years’ service, three marks for 4 years’ service and four marks for 5 or more years’ service.

The claimant received the maximum mark of four under this heading.

32. All the criteria, with the exception of the absence days and absence occasions, were assessed by reference to the 12 months between 27 January 2008 and 26 January 2009. The absence days and absence occasions were assessed over a 24 month period up to that final date.

33. The employees with the lowest scores were selected for redundancy.

34. Each employee in the redundancy pool was marked, in relation to ‘skills’, ‘adaptability’ and ‘teamwork initiative’ by either two or three superintendents who were judged by the respondent to be most familiar with that employee’s work.

35. The claimant was selected for redundancy.

36. Mr Mark Smylie was not selected for redundancy.

37. There was no issue regarding the application of the statutory dismissal procedure.

38. Mr Mark Smylie received a score of four under the skills criterion, four under the adaptability criterion, four under the teamwork initiative criterion, one under the length of service criterion, five under the absence occasions criterion, five under the absence days criterion and five under the discipline criterion.

39. On the uncontested evidence of the respondent, Mr Mark Smylie was assessed in respect of skills, adaptability and teamwork initiative by two superintendents, one of whom was his father, who were the superintendents with the best current knowledge of his work.

40. Each employee’s markings by the assessing superintendents in respect of ‘skills’, ‘adaptability’ and ‘teamwork initiative’ were then checked and moderated by a manager at a higher level.

41. The claimant queried the treatment of two particular days, ie 7 September 2007 and 14 November 2008 under the ‘absence days’ and ‘absence occasions’ criterion. In respect of the first day, he stated he had phoned in with head, neck and jaw pain. There was a record of the claimant telephoning the respondent on 7 September 2007 to that effect. The claimant argued that this should have been disregarded as a disability-related absence.

In relation to the latter date, the return to work record indicated that the claimant had stated that his child had been sick and he had been up all night with her. He does not appear to have claimed that this absence should have been treated as dependency leave rather than as unauthorised absence and he certainly did not appeal at the time in that respect. The return to work suggests that the claimant was going to treat this as a holiday day but this clearly did not happen. It is arguable whether that particular day should have been treated as dependency leave. It was the respondent’s case, unchallenged in cross-examination, that if only one of those two dates was wrongly included in the redundancy selection calculations, it would have made no difference to the claimant’s selection.

Relevant law

42. The question of whether the claimant was disabled for the purposes of the Act has to be determined by reference to the dates of the alleged acts of discrimination – Cruickshanks v VAW Motorcast Ltd [2002] IRLR 24.

43. Section 1(1) of the 1995 Act provides:-

“Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse affect on his ability to carry out day-to-day activities.”

Day-to-day activities are affected if the impairment affects mobility, manual dexterity, physical co-ordination, continence, the ability to lift, carry or otherwise move everyday objects, speech, hearing or eyesight, memory or ability to learn, concentrate or understand or perception of the risk of physical danger.

44. The fact that an individual may or may not have been disabled at a particular point of time does not necessarily mean that that individual is disabled for the purposes of the 1995 Act at a different point in time.

45. The onus is on the claimant in every case to prove that, in the relevant period, when the alleged acts of discrimination took place, he was in fact disabled for the purposes of the 1995 Act. In Ross v Precision Industrial Services Ltd and Du Pont [NICA 2005], Kerr LCJ stated at Paragraph 39:-

“The onus of establishing that he was substantially affected in manual dexterity and lifting ability rested squarely on the appellant.”

46. The 1995 Act provides at Paragraph 6 of Schedule 1 that an impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities but for the fact that measures (including, in particular, medical treatment and use of other aids) are being taken to treat or correct it, is to be treated as having that effect.

47. In Kapadia v LBC of Lambeth [2000] IRLR 699, it was stated that:-

“It was not enough for a claimant to maintain that he or she would be badly affected if treatment were to stop – proof, preferably of an expert medical nature is necessary.”

48. In Goodwin v Patent Office [1999] IRLR 4, the EAT directed tribunals to answer four questions in determining whether an individual is disabled for the purposes of the 1995 Act:-

(a) Does the claimant have an impairment which is either mental or physical?

(b) Does the impairment affect the claimant’s ability to carry out normal day-to-day activities in one of the respects set out in Schedule 1 and does it have an adverse affect?

(d) Is the adverse effect long-term?

49. Under Article 130(1) and (2) of the Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’), it is up to the respondent to prove that the reason for the dismissal was for a potentially fair reason; in this case, redundancy. Once a potentially fair reason has been established, the tribunal has to determine whether the dismissal was fair or unfair in all the circumstances of the case, for the purposes of Article 130(4) of the 1996 Order.

50. In Williams v Compair Maxim Ltd [1982] IRLR 83, the Employment Tribunal set out the standards which should guide tribunals in deciding whether a dismissal on the ground of redundancy was fair in all the circumstances of the case. It stated:-

“There is a generally accepted view in industrial relations that, in cases where the employees are represented by an independent union recognised by the employer, reasonable employers will seek to act in accordance with the following principles:-

(1) The employer will seek to give as much warning as possible of the impending redundancies so as to enable the union and employees who may be effected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.

(2) The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting employees to be made redundant. When that selection has been made, the employer will consider with the union whether the selection had been made in accordance with those criteria.

(3) Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as is possible do not depend solely upon the opinion of the person making selection but can be objectively checked against such things as attendance record, efficiency of the job, experience, or length of service.

(4) The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.

(5) The employer will seek to see whether instead of dismissing an employee he should offer him alternative employment.”

51. In British Aerospace v Green [1995] IRLR 437, the Court of Appeal stated in relation to scoring systems for redundancy selection:-

“The use of a marking system of the kind that which was adopted in this case has become a well recognised aid to any fair process for redundancy selection. By itself, of course, it does not render any selection system automatically fair; every system has to be examined for its own inherent fairness, judging the criteria employed and the methods of marking in conjunction with any factors relevant to its fair application, including the degree of consultation which accompanied it. One thing however is clear; if such a system is to function effectively, its workings are not to be scrutinised officiously – it must not be subject to an over minute analysis. That applies both at the stage when the system is actually being applied, and also at any later stage when its operation has been called into question before an industrial tribunal.

I would endorse the observations of the Employment Appeal Tribunal in Eaton Ltd v King & Others [1995] IRLR 75 that it is sufficient for the employer to show that he set up a good system of selection and that it was fairly administered, and that ordinarily there is no need for the employer to justify all the assessments on which the selection for redundancy was based.

The question for the tribunal is whether the tribunal was unfairly dismissed, not whether some other employee could have been fairly dismissed. The tribunal is not allowed to embark on a reassessment exercise.”

Decision

Disability claim

52. The onus of proof in on the claimant to establish that he had been, at the relevant time, disabled for the purposes of the 1995 Act. The claimant had clearly been ill in early February 2007 and had been admitted to hospital. He stated in evidence that during the period when he was worst affected, he had difficulty in going up or downstairs. However, this statement emerged only on re-examination and appeared nowhere in the claimant’s claim form, in his witness statement or in the medical evidence. The relevant period for assessing disability is the 24 months period during which the claimant’s absences, whether as absence periods or absence days, were taken into account by the respondent for the purposes of his marking in the redundancy selection exercise. That 24 month period encompasses the 12 month period relevant to other selection criterion. That was in the 24 month period leading up to 26 January 2009.

53. The claimant has not produced specific or clear evidence that his ability to perform in relation to day-to-day activities as defined by the 1995 Act was substantially affected during any particular period and certainly for any minimum 12 month period to satisfy the statutory definition of ‘disability’. The medical reports which are summarised above, do not either state that the claimant had difficulty in dealing with normal day-to-day activities or state that he would have had difficulty in dealing with those normal day-to-day activities but for the administration of Prednisone. It is not for the tribunal to speculate as to the limitations which his medical condition placed on his day-to-day activities, or would have placed on those activities but for the administration of Prednisone, over any particular period of time. It was for the claimant to establish this as a matter of evidence and he has failed to do so. It is noteworthy, in particular, that Dr McCrea recorded that, three months or less after being taken ill, the claimant was daily walking four miles around the Craigavon lakes and doing housework and cooking. That evidence was not challenged. It is also noteworthy that the medical evidence did not focus on or deal with mobility, manual dexterity or the other specified day-to-day activities, either with or without the administration of Prednisone.

54. While the claimant was clearly ill for a period and clearly was prescribed medication for a longer period during which his symptoms either were improving or did not exist, there is no evidence upon which the tribunal could properly conclude that the second, third or fourth questions posed in Goodwin should be answered in the affirmative, and therefore no evidence upon which the tribunal could properly conclude that the claimant was disabled for the purposes of the 1995 Act.

Unfair dismissal claim

55. Since the claimant has failed to establish that he was disabled during the relevant period for the purposes of the 1995 Act, much of his challenge to the redundancy selection process falls away. The tribunal is satisfied that the reason for the claimant’s dismissal was redundancy, a potentially fair reason for the purposes of the 1996 Order.

56. As indicated in the case law quoted above, it is not the tribunal’s function to try to re-run an overtly fair redundancy selection process. In the present case, the respondent, following proper consultations with Unite, set out a detailed redundancy selection process. The weighting to be applied to each individual criterion was not known to the superintendents who made the assessments under three criteria. The weighting was applied, after that marking had been completed, by the Human Resources Department. The number of absence days was accorded a lower weighting than the number of absence occasions. Although disability is no longer an issue in this case, that could arguably have served as a reasonable adjustment in respect of the treatment of disability absences in the context of a redundancy selection procedure.

57. The challenge to the treatment of the claimant’s absence on 7 September 2007 was that it should have been excluded as a disability-related absence. That challenge is no longer relevant. The challenge in relation to the treatment of the claimant’s absence on 14 November 2008 was on the basis that the absence should have been excluded as a day of dependency leave. There is no evidence that the claimant had applied for dependency leave on this occasion or that he pressed the matter in any way. It is, however, clear from the claimant’s evidence that in respect of the relevant working day, he had arranged a GP’s appointment for his daughter and accompanied his daughter to that GP’s appointment. Even if that one day had been dealt with as a day of dependency leave, the unchallenged evidence of the respondent was that it would have made no difference to the claimant’s selection for redundancy.

58. The claimant also challenged the way in which Mr Mark Smylie’s performance under the criteria of skills, teamwork initiative and adaptability had been assessed by two superintendents, including his father. The unchallenged evidence from Mr Kerr, who gave evidence on behalf of the respondent, was that Mr Smylie (Senior) had been the relevant superintendent best placed to assess his son’s performance. Mr Smylie’s performance under these criteria had also been assessed by the other superintendent and further moderated by a higher level manager. There was no evidence that the assessment had been in any way askew or inaccurate. The tribunal is therefore not in a position to say that the involvement of Mr Smylie (Senior) in the marking process in respect of Mr Smylie (Junior) was of itself a sufficient factor to render the selection of the claimant unfair.

Therefore the claims for unfair dismissal and disability discrimination are dismissed in their entirety.

Vice President:

Date and place of hearing: 14 – 15 November 2011, Belfast

Date decision recorded in register and issued to parties: