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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Brannigan v Tesco Stores Ltd [2011] NIIT 06510_09IT (17 May 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/06510_09IT.html
Cite as: [2011] NIIT 06510_09IT, [2011] NIIT 6510_9IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 6510/09
CLAIMANT: Maya Brannigan
RESPONDENT: Tesco Stores Ltd
DECISION
The unanimous decision of the tribunal is that:-
(1) The claimant did not have a disability and was not a disabled person at the material time, within the meaning of the Disability Discrimination Act 1995, as amended. The tribunal therefore does not have jurisdiction to hear the claimant’s claims under the said Act and they are dismissed.
If the tribunal is wrong and the claimant at the material time was a disabled person, the claimant was not discriminated against on the grounds of her disability by the respondent and/or the respondent did not fail in its duty to make reasonable adjustments, pursuant to the Disability Discrimination Act 1995, as amended; and the said claims are dismissed.
(2) The claimant was not discriminated against on the grounds of her race pursuant the Race Relations (Northern Ireland) Order 1997 and the said claim is dismissed.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mr J Kinnear
Mr R Hanna
Appearances:
The claimant did not appear and was not represented.
The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Jones Cassidy Jones, Solicitors.
1.1 The claimant presented to the tribunal on 19 May 2009 a claim of discrimination pursuant to the Disability Discrimination Act 1995, as amended (‘the 1995 Act’). The respondent presented to the tribunal on 3 September 2009 a response in which it denied liability for the said claims pursuant to the 1995 Act. At a Case Management Discussion on 23 November 2009, as set out in the Record of Proceedings dated 26 November 2009, the claimant’s claim was amended, by consent, to include a claim of race discrimination, pursuant to the Race Relations (Northern Ireland) Order 1997. In an amended response, presented to the tribunal on 9 December 2009, the respondent denied liability for the claimant’s claim of racial discrimination. The subject-matter of the claimant’s said claims related to her employment with the respondent as a Customer Assistant-Check-out at the respondent’s store at the Dublin Road, Enniskillen, from 6 February 2009 to 11 March 2009.
1.2 At a Case Management Discussion on 26 February 2010, as set out in the Record of Proceedings dated 2 March 2010, it was agreed that the issues, the subject-matter of these claims of disability discrimination and/or race discrimination, as set out in the claimant’s letter of 4 November 2009, related to four allegations of disability discrimination and sixteen allegations of racial discrimination; and, further, it was agreed, subject to the foregoing, the tribunal required to determine the following issues, namely:-
(a) whether the claimant’s alleged hearing loss amounted to a disability;
(b) whether the claimant’s alleged back problems amounted to a disability; and
(c) if the claimant was a disabled person, whether the respondent knew or had reasonable grounds to know that the claimant was disabled when the alleged acts of discrimination occurred.
1.3 As set out above, the claimant did not appear at the hearing of this matter and was not represented. At a Case Management Discussion on 18 April 2011, which the claimant did not attend, as set out in a Record of Proceedings dated 20 April 2011, the tribunal, for the reasons set out in the said record, granted the claimant’s application for an adjournment of the hearing of this matter on 3 May 2011 but refused her application for an adjournment of the hearing of the matter from 4 – 6 May 2011 and 16 – 17 June 2011, which dates for hearing had been known to the claimant since the Case Management Discussion on 25 February 2011, as set out in the Record of Proceedings on 2 March 2011. Following the Case Management Discussion, the claimant did not make any further application and did not appeal the decision of the tribunal refusing the said application for adjournment. In the claimant’s e-mail dated 14 April 2011, in which she made her application for the adjournment, she stated that, if the application was refused, she would not be in a position to take part.
1.4 In the Record of Proceedings dated 20 April 2011, the claimant was reminded that, if she did not attend the substantive hearing commencing on 4 May 2011, as set out above, then the tribunal would consider her claim in her absence in accordance with the relevant Rules of Procedure and, in particular, Rule 27(5) and 6 of the Industrial Tribunals Rules of Procedure (Northern Ireland) 2005 (‘the Rules of Procedure’).
In the said Record of Proceedings, Rules 27(5) and (6) of the Rules of Procedure were expressly set out, which said Rules state as follows:-
“Rule 27
(5) If a party fails to attend or be represented … at the time and place fixed for such hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn to a later date.
(6) If a tribunal wishes to dismiss or dispose of the proceedings in the circumstances described in Paragraph (5) it shall first consider any information in its possession which has been made available to it by the parties.
The tribunal, in the said record, also expressly set out the provisions of Rule 14(5) and (6) of the Rules of Procedure which allows a party to submit written representations for consideration at a hearing. No such written representations were submitted by the claimant to the tribunal.
1.5 In light of the foregoing, the tribunal was satisfied the claimant was fully aware of the dates for hearing and, her application having been refused by the tribunal, as set out above, the tribunal concluded she had decided not to attend the hearing. The claimant, having been warned that if she did not attend then the tribunal would consider her claims in accordance with Rule 27(5) and (6) of the Rules of Procedure, the tribunal did not consider, in the above circumstances and, having regard to the terms of the overriding objective, that it was appropriate to adjourn the hearing to a later date. The tribunal decided to proceed with the hearing in accordance with Rules 27(5) and (6) of the Rules of Procedure.
1.6 Rule 27(5) gives the tribunal a wide discretion, how it conducts the hearing. Although, the tribunal has to have regard to the information referred to in Rule 27(6) but the tribunal is not required to hold a full hearing, in the absence of the party.
In Roberts v Skelmersdale College [2003] EWCA 954, Mummery LJ said at Paragraphs 15 – 16, the rules do not impose on the tribunal a duty to investigate the case, nor to be satisfied that, on the merits, the respondent to a case has established a good defence to the claim of the absent claimant. The tribunal is entitled to require a respondent to produce evidence, if it considers it appropriate to do so but it is not under any duty to do so.
2.1 In light of the foregoing the tribunal, pursuant to Rules 27(5) and (6) of the Rules of Procedure, considered, in particular, the claimant’s claim form and the responses of the respondent to the claimant’s claims, the Records of Proceedings in this matter, including, in particular, those referred to above; the allegations of discrimination, both of disability and race, set out in the claimant’s letter of 4 November 2009, which were agreed to be the subject-matter of her claim, the claimant’s application for employment and the assessment form/interview records, the claimant’s offer of employment and information sheet dated 6 February 2009, the claimant’s grievance letter dated 13 March 2009, the notes of the grievance meeting on 5 May 2009 and outcome letter of that meeting rejecting the claimant’s grievances, dated 6 May 2009, the notes relating to the claimant’s welcome back meeting on 4 March 2009 following the claimant’s one day of sick absence , and the letter dated 3 March 2009 giving the claimant one week’s notice that her temporary contract with the respondent would be ending, with her last day of employment on 11 March 2009. The tribunal also considered the claimant’s Pre-Placement Health Questionnaire, in which she confirmed, inter alia, she did not have any ‘other disability health problem or illness’. It further considered the medical reports relating to the claimant’s hearing loss dated 6 May 2008 from Dr Ramash Gurknathan, Trust Assistant Surgeon (ENT) to Mr Shah and 10 March 2009 from Mr C Shah, Consultant ENT Surgeon, which disclosed the claimant has a bilateral severe high frequency sensorineural hearing loss; and the discharge letter dated 17 April 2009 and GP’s letter dated 13 May 2010, which disclosed the claimant had sustained soft tissue injuries of her back and neck following a road traffic accident in January 2009 and had a pre-existing back problem as a result of a road traffic accident in 2006. The tribunal also heard oral evidence from the respondent’s personnel manager at the Enniskillen Store, Ms Fiona White (née Clarke), who confirmed the respondent’s denial of the claimant’s allegations as set out in the respondent’s response forms, the terms of the claimant’s temporary employment with the respondent and the contents of the notes relating to the claimant’s grievance and that the said grievance had not been upheld.
2.2 Section 1 of the 1995 Act provides as follows:-
(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he had a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
(2) In this Act ‘disabled person’ means a person who has a disability.
2.3 Having considered the documents referred to in the preceding sub-paragraph, including the said medical reports and the oral evidence given to the tribunal by the respondent’s witnesses which was unchallenged; and in the absence of any evidence from the claimant:-
(i) The tribunal was satisfied that the claimant, at the material time, was suffering from bilateral severe high frequency sensorineural hearing loss which amounted to a physical impairment. The respondent did not dispute the claimant’s said hearing loss had a long-term effect. However, on the information before it, the tribunal was not satisfied the said impairment had a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities. The tribunal was further satisfied that the claimant, following her traffic accident in January 2009 had an injury to her back amounting to a physical impairment; but it was not satisfied on the evidence before it, as contained in the said reports, and in the absence of any evidence from the claimant, the claimant’s back condition had been exacerbated by the earlier accident in 2006. Further, the tribunal was not satisfied her back condition was an impairment which had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. The tribunal also noted the claimant, when interviewed for the position of customer assistant checkout in her health assessment form made no reference to her hearing loss and/or back condition and confirmed in writing she had ‘no disability health problem or illness’ that the respondent required to consider when placing her in her job.
In the circumstances the tribunal was not satisfied by reason of her said hearing loss and/or her back condition or both the claimant, at the material time, had any disability and was a disabled person within the meaning of the 1995 Act. The tribunal therefore does not have jurisdiction to hear the claimant’s claims pursuant to the 1995 Act.
If the tribunal is wrong and the claimant had a disability and was therefore a disabled person by reason of her hearing loss and/or back condition or both, the tribunal, on the information before it, is not satisfied that, at any material time, the respondent had knowledge of any such impairment or that the claimant, upon whom the burden of proof lay, had shown facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent unlawfully discriminated against the claimant on the grounds of her disability and/or it failed in its duty to make reasonable adjustments (see Igen Ltd v Wong [2005] IRLR 258).
(ii) The tribunal was further not satisfied, on the information before it, the claimant, upon whom the burden of proof lay, had shown facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent had unlawfully discriminated against the claimant on the grounds of her race.
2.2 In the circumstances, the claimant having failed to shift the burden of proof in relation to any of her claims, the claimant’s claims must be dismissed.
Chairman:
Date and place of hearing: 4 May 2011, Belfast
Date decision recorded in register and issued to parties: