Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2011/1905_10IT.html
Cite as: [2011] NIIT 1905_10IT, [2011] NIIT 01905_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 1905/10

2293/10

CLAIMANT: David Moore

RESPONDENTS: 1. Ms Avis Beattie

2. Department of Justice

DECISION

The unanimous decision of the tribunal is that the claimant’s claims of unlawful disability discrimination are dismissed and that the claimant’s employment ended by mutual consent.

Constitution of Tribunal:

Chairman: Mr S A Crothers

Members: Mr E Millar

Mrs J McCormick

Appearances:

The claimant was represented by Mr F Spratt.

The respondents were represented by Miss N Murnaghan, Barrister-at-Law, instructed by the Departmental Solicitors Office.

The Claim

1. The claimant claimed that he had been unlawfully discriminated against on the ground of his disability by the first named respondent (“Avis Beattie”) and that he was forced to leave his employment by requesting medical retirement. Additional claims are reflected in the issues at paragraph 2 of this decision. The respondents denied the claimant’s claims in their entirety.

Issues before the Tribunal

2. The issues before the tribunal, as agreed by the representatives, were as follows:-

(1) Was the claimant’s employment ended by mutual consent or by the resignation of the claimant?

(2) If not, was the claimant unfairly/constructively dismissed and, if so, was any such dismissal also discriminatory under the provisions of the Disability Discrimination Act 1995 as amended (“the Act”)?

(3) Did the second-named respondent fail in its duty to make reasonable adjustments for the claimant?

(4) Was the claimant subjected to harassment within the meaning of the Act?

(5) Was the claimant subjected to direct discrimination on the ground of his disability?

Sources of Evidence

3. The tribunal heard evidence from the claimant and on his behalf, from a former Head of Employment Relations at the Northern Ireland Prison Service,
Alan Johnston, Mark Wilson formerly Head of Attendance Management Branch and Staff Recruitment and Employment Branch, Elizabeth McCarthy, Office Manager, Performance and Conduct Management Branch and Shirley Morrow, Employee Relations Manager. On the respondent’s behalf the tribunal heard evidence from Avis Beattie, Head of Personnel in the Northern Ireland Prison Service, Teresa Hewitt, Human Resources Head of Equality and Diversity and Occupational Support, Mark McGuckin, Deputy Director in the Department of Justice, Brian Millard, Deputy Principal, Northern Ireland Prison Service, Geraldine Pyper, Performance and Conduct Management Branch and Stephen Mills, Attendance Management Branch. The tribunal was also assisted by bundles of documentation and by an agreed chronology, a copy of which is appended to this decision.

Findings of Fact

4. The tribunal, having carefully considered the evidence before it in relation to the above issues made the following findings of fact on the balance of probabilities:-

(i) At all times material to this case the claimant held the post of Head of Performance and Conduct Management and Reward and Recognition Branches with the second named respondent (“the Prison Service”). The claimant had worked for the Prison Service for 28 years prior to the cessation

of his employment on 31 August 2010. The claimant signed documentation for the attention of the Attendance Management Branch Prison Service Headquarters on 4 August 2010 stating as follows:-

“I am writing to advise you that I wish to bring forward my last day of service and I do not intend to appeal the decision to proceed with my ill-Health Retirement.

I wish my last day of service to be 31 August 2010”.

The claimant presented a grievance to the Prison Service on 6 August 2010 which was still outstanding at the date of hearing. The claimant presented a claim to the tribunal office on 9 August 2010, which was partially rejected, and presented a further claim on 21 September 2010.

(ii) The claimant, who suffers from spina bifida, (and was therefore disabled within the meaning of the Act), gained temporary promotion to Grade B1 in August 2004 within Performance and Conduct Management Branch of the Prison Service. He assumed B1 duties managing disciplinary, grievance and harassment case work in order to release other substantive B1 members of staff in producing a number of policy documents. The claimant denied knowledge of any disability policies within the Prison Service and asserted that he was unaware that a disability liaison officer existed. The tribunal does not accept the claimant’s evidence on this point. Various minutes of meetings at which the claimant was in attendance together with a series of emails placed before the tribunal show that the claimant was indeed aware of the disability policy and specifically the reasonable adjustment policy.

(iii)            The claimant alleged that Avis Beattie failed to make reasonable adjustments for him and bullied, criticised and harassed him for a period of approximately 18 months. The claimant’s allegations range from a failure to carry out an appropriate assessment, to lighten his workload, transfer him to different duties, change his working hours, allow him to work from home, allow comfort breaks at meetings, allow him access to a disabled toilet and to his office from the car park, and failure to follow the Prison Service’s sickness absence procedures. The claimant also made allegations regarding his working pattern and flexi provisions, special leave, having his authority undermined, unreasonable demands and deadlines being placed upon him, criticisms, being ignored, and other allegations regarding a variety of performance and management issues. The claimant alleged that performance management reviews had not been carried out for the years 2007-2008, 2008-2009 and 2009-2010. The respondent acknowledged that no annual report had been done for the year 2009-2010 but did not accept that mid-year reviews and annual reports had not been done for the years 2007-2008 and 2008-2009. The tribunal accepts that computer records existed to show that the relevant assessments were completed for those years, although, for some reason, hard copies of these reports were not available. The tribunal also accepts that at a meeting held in September 2009, the claimant reported that all performance reports for all non-prison staff had been completed and this would have included himself. Furthermore, his claim form to the tribunal contradicts his assertions by stating:-

                    “Subsequently at my end-year performance review last year”.

This referred to 2009.   It was common case that the claimant would not be entitled to any pay increases had the relevant reviews not been carried out. He did not, however, make the case that any pay increases had been withheld from him. Moreover he had the opportunity at the end of year review to engage in further discussions regarding reasonable adjustments.

(iv) Avis Beattie became the claimant’s line manager on 31 October 2005 and remained his line manager until 31 August 2010. There was a marked deterioration in the claimant’s mobility in 2006. In his report to Doctor Mills, Occupational Physician, Occupational Health Service, dated 9 June 2010, Doctor J P McCann, Consultant in Rehabilitation Medicine, refers to surgical intervention in February 2005 and again in October 2007 and in his Summary and Opinion states as follows:-

“Summary and Opinion

Mr Moore has progressive neurologic dysfunction arising from spina bifida. This is probably a combination of tethering of the cord, hydro syrinx, and Chiari malformation. He has had 2 operations which have proved unsuccessful in ameliorating his symptoms or improving his mobility. Consideration has been given for referral onto a specialist Neurosurgical Pain Clinic.

At this stage he has permanent problems arising from his spina bifida and co-morbidities. He is unable to continue in his current employment. Even were his pain to be resolved I think that this would still remain the situation. Nonetheless pessimistic that there would be any major gain to be had from intervention that maybe considered at Neurosurgical Pain Clinic. I would be concerned that any further intervention may material[ly] [a]ffect motor function and also bowel and bladder function.

I would therefore confirm my view that this man is unable to continue in his current employment on the grounds of neurologic dysfunction arising from spina bifida and associated conditions. I do not anticipate any improvement in this situation in the future and indeed it is possible

that his mobility and functional capabilities will continue to decline. I would therefore support his application for retirement on grounds of ill health.

Yours sincerely

Dr J P McCann MD FRCP FRCPI

Consultant in Rehabilitation Medicine”

(v) Following an assessment by Avis Beattie and Mark McGuckin, the performance report form on the claimant for the year 2005-2006 illustrates that he performed well and contains very positive comments about him. The claimant was promoted to Grade B1 in June 2006 on a substantive basis and again the performance report for 2006/2007 following an assessment by Avis Beattie and Mark McGuckin is positive. In April 2007 the claimant was recommended for a non-consolidated performance bonus.

(vi) Following the second major surgical intervention in September 2007, the claimant was absent from work until 26 February 2008. Avis Beattie conducted a return to work interview with the claimant on 26 February 2008. The return to work interview form signed by Avis Beattie, states the following:-

“David and I met on 26 February. I welcomed him back and we talked about his recovery from surgery. While he wasn’t fully fit, he felt able to resume work but we agreed that he should try to take things easy initially.

We caught up on the main developments in his areas during his absence and talked about staffing issues. There were no major concerns and David was fairly up to speed having maintained contact with the Branches during his absence”.

The claimant was again absent from 31 March 2008 until 2 April 2008 and his return to work interview form, again signed by Avis Beattie, states as follows:-

“I spoke to David on his return and he explained the reason for his absence and his current health. He was still recovering but felt well enough to attend work”.

The reason for the claimant’s illness was “kidney/UTI”.

Following a further period of absence from 15 July 2009 until 22 July 2009 owing to “bladder infection and foot infection arising from difficulties associated with spina bifida”, the return to work interview form, signed by Avis Beattie on 24 July 2009 states as follows:

“David returned to work on Wednesday after a short absence. I spoke to him and he said that he had recovered reasonably well and felt sufficiently well to be in work.

We also discussed a few issues that had arisen in his absence and I updated him on those”.

The tribunal accepts that there was an increased deterioration in the claimant’s mobility and bladder problems and that he suffered concentration difficulties owing to an increase in his medication to counteract pain.

(vii) The tribunal found Avis Beattie to be a reliable and honest witness. It accepts her evidence that she frequently engaged with the claimant and discussed his needs and possible adjustments which could be made to accommodate him. It also accepts her evidence that the claimant never mentioned potential problems caused by long meetings, that she never sought to stop him raising or discussing with her any physical difficulty, and that she was unaware that he had fallen in Maghaberry Prison.

(viii) The relationship between the claimant and Avis Beattie became very strained in July 2009. The tribunal carefully considered the evidence surrounding a personal note of a meeting which Avis Beattie held with the claimant on
6 July 2009. She made it clear to him that she was approaching him on an informal basis and that no formal complaint was being raised. She also made it clear that her conversation with him was not part of the disciplinary process but was being carried out in her role as a line manager bringing certain matters to his attention. Avis Beattie then informed the claimant of certain remarks he had allegedly made to certain members of staff. The claimant was well aware of harassment cases given his employment role. The allegations were serious but a formal investigation was not carried out due mainly to a consideration of the claimant’s disability and associated problems. The tribunal also considered Avis Beattie’s personal note of a further meeting with the claimant on 8 July 2009 which was aimed at affording the claimant an opportunity to respond to the matters discussed with him on 6 July 2009. The tribunal accepts that, following these matters being brought to the claimant’s attention, he became concerned about the possible repercussions and was fearful about what might happen to him. He then actively sought a transfer out of the Prison Service. The tribunal also finds that the claimant expressed to Avis Beattie his concern that it may be difficult for him to remain in his post and that a move from the Prison Service might be appropriate. The claimant’s disability was not mentioned in this context, but Avis Beattie agreed to explore the possibility of a transfer. It is also clear that by this stage tensions had developed within the working environment as a result of the allegations made against the claimant. Members of staff directly involved in the allegations conducted themselves on a professional basis only with the claimant. Avis Beattie consulted with her Director within the Prison Service together with the Personnel Director from the Northern Ireland Office and other members of staff in an effort to find an alternative post for the claimant. However, it became clear that posts outside the Prison Service were not within Avis Beattie’s control and her Northern Ireland Office colleagues were unable to identify a suitable post although they agreed to maintain their efforts to do so.

(ix) The claimant had a further period of sick leave from 13 January 2010 until
15 January 2010. The reason for his illness given on the return to work interview form is “UTI”. This form signed by Avis Beattie on 18 January 2010 records the following:-

“I met with David on 18 January on his return after a brief absence. We discussed his illness and recovery and David confirmed that he was well enough to resume duties. We also covered some ongoing work issues”.

(x) The claimant went on sick leave again on 22 February 2010 citing a combination of both stress and mobility problems. In correspondence to the claimant dated 5 March 2010 Avis Beattie states as follows:-

“5 March 2010

Dear David

SICKNESS ABSENCE PROCEDURES – INVITATION TO LINE MANAGER’S MEETING

I’m sorry that you have been unwell and unable to attend work since 22 February 2010.

I would like to meet with you soon and I propose the following dates:

Wednesday 10 March at 2.00 pm or Friday 12 March at 11.00 am.

The purpose of this meeting will be to provide you with an opportunity to discuss any relevant factors regarding your absence and for you to raise any issues which concern you. I note that you[r] sick absence certificate records the reason for your absence as work related stress/mobility problems. At our meeting I will give you the opportunity to complete a Stress Questionnaire and make you aware of the various Occupational Support Services which are available to you.

You may, if you wish, be accompanied by a colleague or trade union representative at this meeting.

Please confirm your attendance by contacting me on the telephone number below.

Yours sincerely

Avis Beattie

Tel: 90 5 25225”

(xi) The claimant’s e-mail response to Avis Beattie dated 8 March 2010 states:-

“Thank you for your letter of 5 March. I am concerned that the meeting you propose would only serve to add to the stress which I am currently under and therefore I do not propose to attend”.

(xii) The tribunal is satisfied that the stress referred to by the claimant was as a result of the matters brought to his attention by Avis Beattie on 6 July 2009 combined with the tensions within the working environment and his desire to transfer out of the Prison Service which hitherto had been unsuccessful.

(xiii) The tribunal considered the record of the first formal review under the Sickness Absence Procedures dated 25 March 2010. One of the action points was that the claimant’s case be referred to the Occupational Health Adviser and that Attendance Management Branch should continue to monitor the case under the Sickness Absence Procedures. The claimant was subsequently referred to the Occupational Health Service on 12 April 2010. The report dated 27 April, under the heading of “Case Summary” states as follows:-

“Mr Moore attended the occupational health service 27/04/10 as requested for his current episode of Sickness Absence.

Mr Moore has been absent from his position as a B1 grade in the Performance and Conduct Department of HQ NIPS from 22/02/10. He informs me that he is experiencing work related stressors and increasing mobility difficulties due to his progressive medical condition.

Mr Moore is at present unfit for the full range of duties, due to the severity and nature of his medical condition.

Mr Moore has requested to be assessed and considered for Ill Health Retirement, an appointment will be arranged for Mr Moore to be assessed in OHS by one of our medical officers”.

(xiv) The report also deals with whether the claimant is currently fit to carry out the normal duties of the grade and states:-

“Due to the nature and severity of Mr Moore’s condition he is currently unfit to carry out the normal duties of his grade”.

Paragraph 2.3 of the report also states:-

“Whether there are any adjustments to the work tasks or environment that would help facilitate rehabilitation or an early return to work and the duration of any adjustments.

I discussed the possibility of relocating Mr Moore to a ground floor office [of] which would provide immediate access to disabled facilities, however at present Mr Moore is currently unfit for duty and adjustments to the work tasks and the environment would not be applicable”.

(xv) The claimant was seen by Doctor Mills of Occupational Health on 10 May 2010. He noted in his Case Summary that:-

“From the work perspective I understand there are issues in relation to the workload and support. Absence was triggered as he could no longer cope with the combination of physical health and workplace problems. There is clearly a degree of interaction between the two.

At this stage I would think it unlikely that Mr Moore would manage to return to his original post. Perhaps the Department could advise whether redeployment is possible as an adjustment to a post with more manageable workload either within or without the department”.

(xvi) Doctor Mills referred the claimant to Doctor McCann, Consultant in Rehabilitation Medicine. His report, dated 9 June 2010, is referred to above at paragraph 4 (iv).

(xvii) It is clear from the evidence that the claimant met with his Trade Union representative, Brian Milford of NIPSA, in advance of the second formal review meeting held on 27 May 2010. Mr Milford appeared on the claimant’s behalf at that meeting. He noted that the reason for the claimant’s absence was stress and mobility problems and confirmed that the application for Ill Health Retirement was based solely on mobility problems. He then asked
Mr Millard and Avis Beattie, who were present at the review together with a note taker, Lorraine McKeown, if the Sick Absence Procedures would be halted in view of the claimant’s Ill Health Retirement consideration.
Mr Millard explained that the claimant’s case would continue to be managed under the procedures pending a decision on Ill Health Retirement, and further pointed out, in the event of the Occupational Health Adviser confirming that there were grounds for the claimant’s Ill Health Retirement, that this would be accepted and the Sickness Absence Procedures would be halted. Mr Milford also confirmed that he would continue to represent the claimant and was available to discuss his case at any time. The tribunal considers it significant that no reference was made to the issues currently before the tribunal at this review meeting, as the claimant was clearly anxious to secure Ill Health Retirement.

(xviii) On 7 July 2010, having received Doctor McCann’s report, Doctor Mills of Occupational Health produced an updated report in which he refers to having received Doctor McCann’s report and that:-

“In my opinion it would be unlikely that further treatment would provide adequate improvement to allow him to return to his post and give regular and effective service”.

Doctor Mills proceeded to recommend Ill Health Retirement for the claimant. The claimant did not appeal this decision and on 4 August 2010 notified the Prison Service that his last day of service would be 31 August 2010.

(xix) The tribunal is satisfied in light of events following July 2009, and given the deterioration in his health, that the claimant decided in conjunction with advice from his Trade Union representative, to pursue Ill Health Retirement. Once this was achieved, the claimant decided to invoke a grievance on 6 August 2010 and pursue a tribunal claim.

(xx) The tribunal found the claimant to be an articulate but unconvincing witness in certain aspects of his evidence and, when weighed against the evidence given on behalf of the respondents, and in particular by Avis Beattie, it is satisfied that where conflicts of evidence arise, the respondents’ evidence is to be preferred. Avis Beattie did not consider the claimant to be inefficient nor was she managing his performance as under performance. The tribunal is satisfied that she enquired after the claimant’s health and well-being regularly and specifically at monthly meetings. She was unaware of any desire expressed by the claimant to work at home or that this would benefit him. No formal home working policy exists within the Prison Service.

(xxi) It was agreed by the parties that the requirement placed upon the claimant by the Prison Service to complete a full range of duties as a disabled person at Dundonald House, constituted a provision, criterion or practice. It was not disputed by the respondent that a duty to make reasonable adjustments arose in the circumstances of this case and that there was no onus on the claimant to suggest what adjustments should be made. The claimant never in fact suggested or discussed with Avis Beattie any reasonable adjustment that she might make even in the course of conversations held with him about his disability. The tribunal is satisfied that Avis Beattie did take account of the claimant’s disability and made or, in some cases, offered the following reasonable adjustments:-

· she decided after each sickness absence not to give the claimant a warning under the sick absence procedures, despite his having breached the set trigger points;

· she suggested changing his working pattern and reducing his hours;

· she offered to change his office location to an office more convenient to the front door;

· although at the time it was sensible to do so for operational reasons as well, she removed some of his duties, namely responsibility for managing bullying and harassment complaints, and assigned these to another B1;

· she scheduled the B1 meeting for 9.30 am each fortnight rather than 9.00 am in an effort to facilitate the claimant’s practice of starting work later;

· she scheduled the monthly Personnel Governor’s meeting for
10.00 am to facilitate the claimant and, areas located in Magilligan for 10.20 am, being the latest time at which she could reasonably accommodate him;

· she arranged meetings held outside Headquarters at locations with closer car parking arrangements rather than in the Boardrooms which would otherwise be used;

· she reassured the claimant that he should take off whatever time he needed for medical or physiotherapy appointments;

· she ignored his not infrequent failure to remember meetings and appointments;

· allocation of additional staff, when required, to assist the claimant in the performance of his duties;

· she re-wrote his work when it was not of an acceptable standard;

· she assumed the task of writing policy in areas for which he was responsible, when he had failed to do so himself;

· she ensured that the claimant was given the most convenient seat nearest the door when meetings were being held;

· she made allowance for the fact that the claimant did not start work until later in the morning and did not fully apply the flexi provisions which did not allow flexi time to be built up when an employee, such as the claimant, worked after 6.00 pm. She sought to be reasonable and allowed the claimant to build up around half an hour’s flexi-time per day;

· she did not place additional tasks on the claimant to the same extent as with other B1 grade of staff, such as deputising for her.

(xxii) Avis Beattie also ensured that the claimant did not miss out on promotion opportunities. She could have refused the claimant’s application for special leave but did not do so. Although the claimant’s work deteriorated, she did not have sufficient reason to apply the formal inefficiency procedures to him nor did she give him an adverse report when she identified areas for improvement in his work. Instead she tried to work with him to develop his skills.

(xxiii) The tribunal is satisfied that the claimant’s employment ended by mutual consent, and therefore he was not dismissed by the Department of Justice.

The Law

5.(1) Article 3A of the Act states as follows:-

“Meaning of “discrimination”

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 reason does not or would not apply, and

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

(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.

(3) Treatment is justified for the purposes of sub-section (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(4) But treatment of a disabled person cannot be justified under sub-section (3) if it amounts to direct discrimination falling within sub-section (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 a particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

(6) If, in a case falling within sub-section (1), a person is under a duty to make reasonable adjustment in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under sub-section (3) unless it would have been justified even if he had complied with that duty.

Meaning of “harassment”

3B.—(1) For the purposes of this Part, a person subjects a disabled person to harassment where, for a reason which relates to the disabled person’s disability, he engages in unwanted conduct which has a purpose or effect of —

(a) Violating the disabled person’s dignity, or

(b) Creating and intimidating, hostile, degrading, humiliating or offensive environment for him.

(2) Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of sub-section (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect”.

(2) The tribunal found the summary on disability discrimination given by Lord Justice Hooper in the case of O’Hanlon v Commissioners for HM Revenue and Customs [2007] EWCA Civ 283 (2007) IRLR 404, to be of assistance. In paragraphs 20-22 of his judgment he states as follows:-

“Section 3A identifies three kinds of disability discrimination. First, there is direct discrimination. This is the situation where someone is discriminated against because they are disabled. This particular form of discrimination mirrors that which has long been found in the area of race and sex discrimination. As with other forms of direct discrimination, such discrimination cannot be justified …

Second, there is disability-related discrimination …

Third, there is the failure to make reasonable adjustments form of discrimination in sub-section (2). Here, the employer can be liable for failing to take positive steps to help to overcome the disadvantages resulting from the disability. However, this is once he has a duty to make such adjustments. That duty arises where the employee is placed at a substantial disadvantage when compared with those who are not disabled”.

Disability-related discrimination is not alleged in this case.

(3) In the case of Tarbuck v Sainsburys Supermarkets Ltd [2006] IRLR 664, EAT, it was held that while it will always be good practice for the employer to consult, and it will potentially jeopardise the employer’s legal position if it does not do so, there is no separate and distinct duty on an employer to consult with a disabled worker. The only question is, objectively, whether or not the employer has complied with his obligations to make reasonable adjustments.

(4) The Tribunal also took into account relevant sections in the Disability Code of Practice Employment and Occupation (“the Code”), being careful not to use the Code to interpret the legislative provisions. It also considered Harvey on Industrial Relations and Employment Law (“Harvey”) at L 384ff in so far as relevant.

(5) Reasonable Adjustments

(i) The Tribunal considered carefully the provisions of Sections 4A and 18B of the Act. Paragraph 5.3 of the Code states:-

“The duty to make reasonable adjustments arises where a provision, criterion or practice applied by or on behalf of the employer, or any physical feature of premises occupied by the employer, places a disabled person at a substantial disadvantage compared with people who are not disabled. An employer has to take such steps as it is reasonable for it to have to take in all the circumstances to prevent that disadvantage – in other words the employer has to make a “reasonable adjustment”. Where the duty arises, an employer cannot justify a failure to make a reasonable adjustment……

…5.4 It does not matter if a disabled person cannot point to an actual non disabled person compared with she/he is at a substantial disadvantage. The fact that a non disabled person, or even another disabled person, would not be substantially disadvantaged by the provision, criterion or practice or by the physical feature in question is irrelevant. The duty is owed specifically to the individual disabled person.

…. 5.11 The Act states that only substantial disadvantages give rise to the duty. Substantial disadvantages are those of which are not minor or trivial. Whether or not such a disadvantage exists in a particular case is a question of fact.

… 5.24 Whether it is reasonable for an employer to make any particular adjustment will depend on a number of things, such as its costs and effectiveness. However, if an adjustment is one which it is reasonable to make, then the employer must do so. Where a disabled person is placed at a substantial disadvantage by a provision, criterion or practice of the employer, or by a physical feature of the premises it occupies, the employer must consider whether any reasonable adjustments can be made to overcome that disadvantage. There is no onus on the disabled person to suggest what adjustments should be made (although it is good practice for employers to ask) but, where the disabled person does so the employer must consider whether such adjustments would help overcome the disadvantage, and whether they are reasonable.”

(ii) The tribunal also considered the types of adjustments which an employer might have to make and the factors which may have a bearing on whether it would be reasonable for an employer to make a particular adjustment. These are set out in Section 18B of the Act as follows; (in so far as may be material and relevant)

“Reasonable adjustments: supplementary

18B.—(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to -

(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b) the extent to which it is practicable for him to take the step;

(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of his financial and other resources;

(e) the availability to him of financial or other assistance with respect to taking the step;

(f) the nature of his activities and the size of his undertaking;

(g) .…

(2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments –

(a) making adjustments to premises;

(b) allocating some of the disabled person’s duties to another person;

(d) altering his hours of working or training;

(e) assigning him to a different place of work or training;

(f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;

(g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person);

(h) acquiring or modifying equipment;

(i) modifying instructions or reference manuals;

(j) modifying procedures for testing or assessment;

(k) .…

(l) providing supervision or other support.

(3) ….

(4) ….

(5) ….

(6) A provision of this Part imposing a duty to make reasonable adjustments applies only for the purpose of determining whether a person has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.”

(iii) The tribunal also considered the guidance given to Tribunals in the Employment Appeal Tribunal case of Environment Agency v Rowan (2008) IRLR 20 where Judge Serota states at paragraph 27 of his judgment:-

“In our opinion an employment tribunal considering a claim that his employer has discriminated against an employee pursuant to Section 3A(2) of the Act by failing to comply with the
Section 4A duty must identify:-

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

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

(d) the nature and extent of the substantial disadvantage suffered by the claimant. It should be borne in mind that identification of the substantial disadvantage suffered by the claimant may involve a consideration of the cumulative effect of both the “provision, criterion or practice applied by or on behalf of the employer” and the “physical feature of premises”, so it would be necessary to look at the overall picture.

In our opinion, an employment tribunal cannot properly make findings of a failure to make reasonable adjustments without going through that process. Unless the employment tribunal has identified the four matters we have set out above, it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage”.

The tribunal also had regard to the Code at Section 8.15 relating to managing disability or ill health and retention of disabled employees. Paragraph 8.16 states, inter alia:-

“If there are no reasonable adjustments which would enable the disabled employee to continue in his or her present job, the employer must consider whether there are suitable alternative positions to which she could be redeployed”.

(6)(i) The tribunal also considered section 42(2) of the Act which states:-

“It is unlawful for an employer to discriminate against the disabled person — …

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

(ii) In this case, the claimant was alleging that he had been unfairly dismissed by the respondent or alternatively constructively dismissed under Articles 126-130 of the Employment Rights (Northern Ireland) Order 1996.

(iii)

(iv) 6. Burden of Proof

(1) Guidance on the burden of proof of in direct discrimination cases is contained in the Annex to the judgment in the case of Igen and Others v Wong [2005] IRLR 258. However, the reversal of the burden of proof also applies to cases involving failure to make reasonable adjustments as well as direct discrimination against a disabled person.

(2) In the case of J P Morgan Europe Ltd v Chweidan [2011] EWCA Civ 648, Lord Justice Elias states as follows:-

“5. Direct disability discrimination occurs where a person is treated less favourably than a similarly placed non-disabled person on grounds of disability. This means that a reason for the less favourable treatment – not necessarily the only reason but one which is significant in the sense of more than trivial – must be the claimant’s disability. In many cases it is not necessary for a tribunal to identify or construct a particular comparator (whether actual or hypothetical) and to ask whether the claimant would have been treated less favourably than that comparator. The tribunal can short circuit that step by focussing on the reason for the treatment. If it is a proscribed reason, such as in this case disability, then in practice it will be less favourable treatment than would have been meted out to someone without the proscribed characteristic: See the observations of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 paragraphs 8-12. This is how the tribunal approached the issue of direct discrimination in this case.

6. In practice a tribunal is unlikely to find unambiguous evidence of direct discrimination. It is often a matter of inference from the primary facts found. The burden of proof operates so that if the employee can establish a prima facie case, ie, if the employee raises evidence which, absent explanation, would be enough to justify a tribunal concluding that a reason for the treatment was the unlawfully protected reason, then the burden shifts to the employer to show that in fact the reason for the treatment is innocent, in the sense of being a non-discriminatory reason: See Peter Gibson LJ in Igen v Wong [2005] IRLR 258, paragraph 37”.

(3) Regarding the duty to make reasonable adjustments the Tribunal considered the case of Latif v Project Management Institute [2007] IRLR 579. In that case the EAT held that a claimant must prove both that the duty has arisen, and that there are facts from which it could reasonably be inferred, absent explanation, that it has been breached before the burden will shift and require the respondent to prove it complied with the duty. There is no requirement for claimants to suggest any specific reasonable adjustments at the time of the alleged failure to comply with the duty. It is permissible (subject to the tribunal exercising appropriate control to avoid injustice) for claimants to propose reasonable adjustments on which they wished to rely at any time up to and including the tribunal hearing itself.

Submissions

7. The tribunal considered the written and oral submissions made by both parties’ representatives. Copies of the written submissions are appended to this decision.

Conclusions

8. (1) The tribunal is satisfied that whilst the claimant has proved facts from which in the absence of an adequate explanation the tribunal could conclude that a duty to make reasonable adjustments has arisen, (which was not disputed), he has not proved that the duty has been breached and therefore the burden does not shift so as to require the second-named respondent to prove it complied with the duty.

(2) In relation to the claim of direct disability discrimination, the tribunal is satisfied that the claimant has not proved facts from which the tribunal could conclude in the absence of an adequate explanation that the claimant had been treated less favourably than a similarly placed non-disabled person on the ground of disability.

(3) The tribunal is also satisfied that the claimant has not proved facts from which the tribunal could conclude in the absence of an explanation that for a reason which relates to his disability, he was subjected to harassment.

(4) In the light of the tribunal’s findings of fact that the claimant’s employment ended by mutual consent, the tribunal does not consider it necessary to address further the issues referred to in paragraphs 2(1) and (2) above.

(5) The tribunal therefore dismisses the claimant’s claims.

Chairman:

Date and place of hearing: 16-20 May 2011, 21-23 June 2011 and

5 August 2011, Belfast.

Date decision recorded in register and issued to parties:

David Moore

Chronology

Mr Moore temporary promoted to B1 in August 2004 within Performance and Conduct Management Branch. He assumes B1 duties managing disciplinary, grievance and harassment case work in order to release the substantive B1 to produce a number of policy documents.

Mrs Beattie took over management of Mr Moore in 2005.

Mr Moore underwent 1^st Surgical Intervention for tethered cord- February
2005.

Marked deterioration in Mr Moore’s mobility in 2006;
According to Dr McCann he needed to use stick, hold onto things with hands, increased pain; increased deterioration of bladder function (see report from Dr McCann, p.374)

Mr Moore’s performance for the period 2005/2006 assessed by Ms Beattie and Mr Mc Guckin as effective with very positive comments made. (bundle 2 page 263)

Mr Moore substantively promoted to B1 in June 2006.

Mr Moore’s performance for the period 2006/2007 assessed by Ms Beattie and Mr McGuckin as effective with very positive comments made (bundle 2 page xx). ₂₆₈

Mr Moore recommended for Non Consolidated Performance Bonus April 2007 (bundle 2 pages 274 - 277).

2^nd major operation September 2007- absent from work until 26/2/08.
Ms Beattie conducted a return to work interview with Mr Moore 26
February 2008 — agreed he should take things easy.

There was an increased deterioration in Ms Moore’s mobility and bladder problems. Within months he began to suffer concentration difficulties when his pain medication was increased. From his return to work until February 2010 Mr Moore becomes less stable on his feet and suffers a number of falls in work.

Mr Moore begins to suffer regular bladder infections resulting from inability to empty bladder resulting from spina bifida.

Ms Beattie conducted a return to work interview with Mr Moore on 4 April 2008 after a short absence due to Urinary track infection.

Mrs Beattie confronts Mr Moore about inappropriate comments made to female staff— 6 July 2009 (see Mrs Beattie’s note of conversations regarding this, p494)

Mr Moore is absent with infection 15/7/09- 22/07/09.

Mr Moore went sick 22/2/10- citing combination of both stress and mobility problems.

At p. 437 Mrs Beattie wrote to Mr Moore on 5/3/10 asking for line manager’s meeting on 10 or 12 March2010 - Mr Moore replied that it would only add to his stress, and so wouldn’t attend, p.435.

1^st Meeting re sickness absence on 25/3/10, p.404.

On 12 April 2010 the Prison Service referred Mr Moore to the Occupational Health Service (bundle 2 page 430).

Mr Moore was seen by OHS on 27/4/10, discussed adjustments but Mr Moore advised he wanted Ill Health Retirement (IHR), p.386.

Mr Moore was seen by Dr Mills on 10/5/10, when he found that the “absence was triggered as he could no longer cope with the combination of physical health and workplace problems.” p.383 Dr Mills to seek further info from Dr McCann.

27th May 2010, 2nd Formal Review Meeting — Mr Moore did not attend, but his Union Representative confirmed he wanted Ill Health Retirement, no mention made of reasonable adjustments. p.395

On 9^th June 2010 report received from Dr McCann, p.374, in the summary and opinion he concludes that Mr Moore is - ‘unable to continue in his current employment. Even if his pain were to be resolved...’

Dr Mills 7/7/10, having received Dr McCann’s (consultant) report — held that it was unlikely that further treatment would permit return to work, and so made a recommendation for Medical Retirement p.371

Mr Moore confirmed he would not appeal against the decision to grant Ill Health Retirement on 4th August 2010, p.393

Mr Moore submitted internal grievance on 6/8/10; first formal articulation of any complaints before to the Respondent.

ITI — issued 9/8/10.

Ill Health Retirement— Mr Moore’s last day of employment 31/8/10.

At date of writing Mr Moore’s internal complaint remains ongoing.

Case ref numbers:

1905/10
2293/10

David Moore

Claimant

Avis Beattie
NIPS

Respondents

Closing Submission

The evidence presented to the Tribunal in the form of documentation and witness testimony amounted to a prima facie case in respect of all areas of Mr. Moore’s claim.

This statement is presented in 6 separate but related sections:

SECTION A REASONABLE ADJUSTMENTS
SECTION B INDIRECT DISCRIMINATION
SECTION C DIRECT DISCRIMINATION
SECTION D HARASSMENT
SECTION E CONSTRUCTIVE DISMISSAL
SECTION F VICTIMISATION

SECTION A - REASONABLE ADJUSTMENTS

Relevant Law

1. The claimant contends that the Respondents discriminated against him by failing to apply reasonable adjustments to remove the substantial disadvantage he suffered in accordance with Section 6 of the Disability Discrimination Act 1995.

2. The claimant further contends that the Respondents actions or omissions resulted in widespread breaches of the Equality Commission Disability Code of Practice, examples of which are highlighted in this submission.

The Facts

3. The Northern Ireland Prison Service (NIPS) Reasonable Adjustment Policy (Red bundle page 99) is in itself discriminatory in that it is predicated on the disabled employee firstly consulting with his or her line manager prior to any reasonable adjustment being considered (paragraph 12 of the Policy). Under the Policy, even where NIPS is aware that a disabled employee is suffering a substantial disadvantage, it need take no action unless the employee raises the matter with their line manager. This is in breach of the DDA which requires an employer to consider reasonable adjustments where it has knowledge that an employee is suffering a substantial disadvantage due to a disability, whether or not the employee raises the matter.

4. The NIPS Head of Equality and Diversity, Mrs. Hewitt, sought to rely on this policy to absolve NIPS of its statutory duties in terms of making reasonable adjustments in Mr. Moore’s case (black bundle paragraph 3 page 239). In her oral evidence she also strongly supported the statement made by the NIPS Disability Liaison Officer, Mrs Stewart, that it was up to the disabled employee to come to her before she took any action (black bundle page 258). In her evidence to the Tribunal Ms Beattie said that because Mr Moore had not in her view complied with paragraph 12 of the policy, she had not asked him to complete a disability evaluation form setting out the full extent arid impact of his disability (paragraph 13) or arranged for him to be referred to the Occupational Health Service (OHS) for professional advice (paragraph
14).

5. NIPS Knowledge of Claimant’s Substantial Disadvantage

5.1 NIPS introduced documents to the Tribunal to show Mr Moore had received e-mails on the subject of reasonable adjustment policy and was therefore aware of it. Given the impact of his medication and the pressure of work which existed it is not surprising that Mr Moore does not remember emails dating back to 2007 which were not about his area of work. It is one thing to be copied into emails referring to a policy but quite another to be aware of its provisions.

5.2 Mr Moore’s lapse in memory should in no way detract from the main issue; whether or not he knew about the Policy, he knew he needed help and he reached out to NIPS for that help. This does not obviate NIPS’s responsibility to apply the provisions of the policy to Mr Moore given that it was fully aware of the substantial disadvantages he faced after his return to work from the 2^nd major spinal operation in February 2008: -

i. Mobility

Mr. Wilson, Mrs. McCarthy and Miss Morrow all gave evidence that they were aware of Mr. Moore’s falls at work after February 2008; Ms. Beattie confirmed that she too was aware of his falls. Ms Beattie’s and Mrs. Hewitt’s witness statements (Black bundle paragraph 6, page 198, paragraph 108 page 228 and paragraph 3 page 239) and their evidence to the Tribunal on this mailer is direct evidence of their knowledge of Mr. Moore’s mobility difficulties.

ii. Morning Exercise Regime

Mrs. Hewitt’s witness statement (Black Bundle, paragraph 6 page 241) is direct evidence that Mr Moore reached out to the NIPS Head of Equality and Diversity to make her aware of his need of a morning exercise regime and the impact this had on his starting time.

iii. Concentration

Ms. Beattie acknowledged at the 1st Formal Review (Black Bundle page 363) that not only was she was aware from October 2009 of Mr. Moore’s concentration difficulties caused by his medication but that she knew his performance had deteriorated because of it. In her evidence to the Tribunal Ms Beattie acknowledged that Mr Moore’s difficulties in concentrating and tiredness etc. placed him at a substantial disadvantage compared to his able bodied colleagues.

Mr Wilson, the then Head of Staff Deployment, gave evidence to the Tribunal that Mr Moore sought a transfer mid to late 2008 due to his inability to cope with the pressure of work and that he was aware how disorientated he could become.

iv. Bladder and Bowel Difficulties

Ms. Beattie’s evidence to the Tribunal and her witness statement (Black bundle paragraph 82 page 220) show that she was relying on Mr Moore recommending a reasonable adjustment when she was aware of the disadvantages he faced. The recurring nature of the infections Mr Moore suffered after 2008 should have triggered MS Beattie consideration of what adjustments could be made: -

· The self-certified sick absence

return (Black bundle page 393) submitted through Ms Beattie refers to infections being due to spin bifida;

· The return to work interviews

from 4 April 2008, 24 July 2009 and 18 January 2010 (Black bundle pages 381, 377 and 374) confirm that Ms Beattie discussed with Mr. Moore the fact that his bladder infections were caused by his disability

In addition Mr Wilson gave evidence that he had agreed to Mr Moore’s request to extend a lunch break at a seminar in Magilligan to enable Mr Moore to deal with toileting issues.

5.3 Paragraph 5.15 of the Equality Commission’s Code of Practice (red bundle page 24) states that employers should put systems in place to ensure that information input about disabled employees from whatever source is properly collated. It is clear from paragraph 5.2 above that Mr Moore had shared important information about the deterioration of his condition and how this impacted on his work with the Head of Equality and Diversity (Ms Hewitt) and the Head of the branch responsible for transfers (Mr Wilson). Ms Beattie’s evidence that she was unaware of this additional information clearly shows that whatever system NIPS claims to have had in place to collate information about disabled staff was ineffectual.

5.4 Despite the fact that. NIPS was fully aware, through different sources, of the substantial disadvantages Mr Moore faced from 2008 Ms Beattie failed to conduct the proper assessment referred to at paragraph 5.20 of the Equality Commission Code of Practice (Red Bundle page 31). Ms Beattie’s evidence was that she conducted her own ongoing assessment which was clearly ineffectual given that the Tribunal will be fully aware of the numerous occasions NIPS and Ms. Beattie sought to rely on their lack of information as a reason Mr. Moore was not provided with reasonable adjustments. The following are examples of the assumptions Ms Beattie testified to in her evidence to the Tribunal (contrary to paragraph 25 of the Reasonable adjustment policy (Red bundle page 103):-

I. Mr Moore did not need assistance
to help him overcome his concentration problems as he was not underperforming.

II. Mr Moore did not need a transfer to a less pressurised post on grounds of his disability;

III. Mr Moore’s disability had no impact on his starting time

IV. There were no disability related grounds to show Mr Moore would benefit from working from home.

V. There was no disability related reason for Mr Moore to have access to a disabled toilet

VI. Someone else was responsible for ensuring Mr Moore had a Personal emergency Evacuation Plan. Ms Beattie subsequently admitted this was an oversight on her part.

6. Mr. Moore’s Request for Reasonable Adjustments

6.1 Irrespective of Mr Moore’s knowledge of the Reasonable Adjustment

Policy the evidence shows that not only did he make NIPS aware of the substantial disadvantages he faced, he also asked for help and made suggestions by way of reasonable adjustments. Ms. Beattie’s statement (Black bundle, paragraphs 83 and 107 pages 221 and 228) that Mr. Moore did not ask for reasonable adjustments is not supported by the following facts: -

I. Ms Beattie’s IT response (Back bundle paragraph 29 page 64) confirms Mr. Moore asked to work from home. Moreover when taken in the context of the next paragraph, paragraph 30, it is clear that the claimant’s request related to working at home rather than to remote working as initially suggested by Ms Murnaghan. Ms Beattie confirmed this in her evidence to the Tribunal

II. Ms Beattie acknowledged at the 1st formal review (Black Bundle page 363) that when she met Mr Moore in February 2010 he “indicated to her that he was under stress and considered he needed a move out of PersonneI” Ms Beattie’s subsequent efforts to set the context and timing of Mr Moore’s request for a transfer back to the informal complaint about him in July 2009 is not credible given Mr. Wilson’s evidence that Mr. Moore asked for a transfer from mid/late 2008 due to the pressure of work and Ms. Beattie’s relentless criticisms. Mrs McCarthy and Miss Morrow also gave evidence to the Tribunal that Mr Moore told them he was seeking a transfer around that time.

7. NIPS Failure to make
reasonable adjustments

7.1 The evidence shows that NIPs
assumptions outlined at paragraph 5.4 above resulted in its failure to make the following reasonable adjustments to remove the substantial disadvantages faced by Mr Moore due to the deterioration in his disability:

I. Transfer to a less pressurised post.

The sole reference to NIPS efforts to transfer Mr. Moore is in the context of alleged inappropriate behavior (Paragraph 53 page 212 black bundle). This is despite the fact that Ms Beattie’s own handwritten notes of her meeting with Mr Moore in July 2009 contain no reference to any such transfer, confirming Mr Moore’s evidence that the incident played no part whatsoever in his request for a transfer.

In her evidence to the Tribunal Ms. Beattie accepted Mr. Moore was not placed in the ‘disabled pool’ for transfers and that she was unaware of any efforts NIPS made to transfer him from mid to late 2008 on grounds of disability. Ms. Beattie’s actions to seek a transfer for Mr. Moore on the grounds of his alleged inappropriate behavior, when he

was not the subject of any ongoing complaint at the time, rather than his disability placed him at an even greater disadvantage. It made it much less likely that he would secure a transfer to a less challenging and lighter weighted post due to his disability.

NIPS refused Mr. Moore’s request for full discovery of the number of 81 transfers in the DoJ in the 24 months before his ill health retirement. Instead it sought to rely on the fact that the DoJ came into existence on 12 April2010 (Black bundle page 494) as a deliberate method of blocking his efforts to show how reasonable his request for a transfer was.

It was entirely practicable for NIPS to have complied with the Equality Commission’s Code of Practice (red bundle paragraphs 5.18 and 5.27, pages 27 and 35) by transferring Mr. Moore to a less pressurised post given the size of the NICS, the number of staff working within the Stormont and Bangor areas and the fact that it had 18 months to locate a position.

Whilst Ms. Beattie’s witness statement (black folder paragraphs 19 and 20 page 201) is not accepted in terms of Mr Moore’s performance deteriorating it does show it is highly likely that Mr. Moore would have performed efficiently in a less pressurized post. Had the transfer been actioned in 2008 this would have removed the substantial disadvantage which Mr Moore subsequently faced resulting from a combination of dealing with a highly challenging post whilst enduring relentless criticism because of the impact of his medication and at the same time trying to cope with a major disability. This involved serious psychological and emotional issues as well as physical issues and dealing with one would have helped to offset the other.

II. Working from Home

In her evidence to the Tribunal Ms Beattie sought to deflect from her own inaction by claiming Mr Moore did not ask to work from home as a reasonable adjustment. It is absolutely clear that Mr Moore expressed the wish to work from home to address the substantial disadvantage resulting from his disability both at the BI meeting where the pilot scheme was discussed and subsequently when he met with Ms Beattie in February 2010. The Respondent’s initial attempts to convince the Tribunal that the 81 meeting and the pilot scheme related to remote home working are not credible:

• Ms Hewitt’s statement (black
bundle paragraph 6 page 241) clearly shows Mr Moore shared personal information about his morning exercise regime when asking to work from home all of which would have been completely irrelevant to remote home working.

• Ms Beattie’s statement
(paragraph 29 an 30 (black bundle page 64) is a clear indication

that she was aware what Mr Moore had asked for was working from home
• Ms Beattie’s evidence to the Tribunal that the B1 meeting included discussion about working at home and that was the context in which she considered Mr Moore’s circumstances

Even if the contention is to be believed (which it’s not) that Mr Moore asked for remote home working and not working from home, the request should have triggered NIPS consideration of what adjustments could remove the substantial disadvantages he faced. In other words why didn’t NIPS consider offering Mr Moore working from home?

The direct evidence from Mr McGuckin (Black Bundle paragraph 11 page 251) and Ms. Beattie (black bundle paragraphs 29 and 77 pages 64 and 219) proves Mr. Moore’s case that all of NIPS efforts were by way of presenting obstacles as to why he could not work from home. In stark contrast the absence of any reference to the efforts made by NIPS to consider Mr. Moore’s request both in documentary form or evidence to the Tribunal confirms Mr. Moore’s case that NIPS failed to consider how working from home would have removed the substantial disadvantages which his disability presented.

Ms Beattie’s explanation to the Tribunal that she considered Mr Moore’s request solely in the context of his concentration difficulties is a direct contradiction of her acknowledgement to the Tribunal that Mr Moore’s mobility problems placed him at a substantial disadvantage compared to his able bodied colleagues in the workplace. Evidence given at Tribunal clearly showed that NIPS was aware of Mr Moore’s serious mobility issues, his bladder problems and his exercise regime.

NIPS and Ms. Beattie’s evidence to the Tribunal in which they seek to rely on the absence of a formal policy in this area is a retrospective attempt (there is no reference to this in the IT responses or witness statements) to deflect from their statutory breach as outlined above.

The evidence shows it was entirely reasonable for NIPS to have considered working from home as an adjustment for Mr. Moore:-

• Mr. Wilson said there are numerous civil servants working from home ahead of the introduction of a formal policy;

• Mr Wilson also said that whilst working away from the office in Magilligan he had none of the difficulties presented as obstacles to Mr Moore working at home such as attending meetings at short notice;

• Senior members of NIPS continue to use encrypted laptops to work from home and a disabled BI in NIPS has since been approved to work from home;

• NIC management confirmed at a
7

meeting in February 2010 that staff may request working from home through line management (one of the additional documents provided by the claimant (C2);

• The formal working from home policy had been agreed with Trade union Side (black bundle page 271 top);

• Ms. Beattie failed to provide any reason as to why Mr. Moore could not have worked from home in the mornings. This single action would have resolved Mr. Moore’s substantial disadvantages in terms of his mobility, bladder and bowel difficulties and exercise regime

• The NIO Director of Personnel confirmed through the question and answer notice board on the intranet that disabled staff could apply to work from home (the other additional document provided by the claimant (C2))

III. Lightening of the Workload

The only evidence presented by way of NIPS efforts to lighten Mr. Moore’s workload is Ms. Beattie’s claim to have transferred his responsibility for dealing with harassment cases to Mrs Hewitt (black bundle paragraph 31 page 206). This is a retrospective attempt by Ms. Beattie to deflect from her own inaction and is not supported by the evidence:

• Ms. Hewitt’s witness statement (paragraph 7 page 241 black bundle) confirms the work transferred because the new Dignity at Work Policy required the Head of Equality and Diversity Branch to manage harassment investigations;

• Even if it were accepted that this was a reasonable adjustment (which it’s not) Mrs. Hewitt’s evidence to the Tribunal confirmed that the work transferred earlier than planned to offset the considerable additional workload placed on Mr. Moore and his branch arising from the NCO disciplinary dismissals. She described the claimant’s branch as completely ‘inundated’.

The lightening of Mr. Moore’s workload was an entirely reasonable expectation as demonstrated by the fact it was done before in 2005 for a non-disabled member of staff. Miss Morrow’s evidence to the Tribunal discredited Ms. Beattie’s denial in her IT Response that this had not happened (black bundle paragraph 13 page 59).

The lightening of Mr. Moore’s workload would have removed the substantial disadvantage he faced and negated his need for a transfer to a less pressurized post. It would have eased the pressure he was under and avoided the relentless criticism which ensued thus alleviating his concentration difficulties and helping him to cope with

the psychological difficulties associated with his disability

IV. Office Accommodation and a Disabled Toilet

At Tribunal Ms. Beattie did not provide a satisfactory reason for the contradictions between her witness statement and IT Response. At paragraph 33 of her IT response (page 66 black bundle) she claimed that Mr Moore rejected an offer to relocate office to the ground floor (closer to a disabled toilet) because he preferred to be near his staff and she had no facility to move the whole Branch. At paragraph 87 of her witness statement (page 222 black bundle) she said she would have moved other staff to facilitate Mr. Moore if he was being disadvantaged.

Ms Beattie’s evidence to the Tribunal confirmed it was entirely reasonable for NIPS to have moved Mr Moore and his branch to: the ground floor thereby removing the disadvantages he faced in tents of access to the exit and a Disabled toilet. She had arranged for Equality & Diversity Branch to be moved for operational reasons which involved partitioning existing offices. In contrast Ms Beattie confirmed that she had not even considered the possibility of swapping Mr Moore’s Branch with SRPD which would also have placed both branches beside their respective B1s. Furthermore Ms Beattie also confirmed that she had no contact whatsoever with the Premises Officer either to consider this option or to ask to be kept informed of any future office moves which may have facilitated Mr Moore’s wish to move with his staff to the ground floor.

At Tribunal Ms Beattie sought to rely on a conversation she alleges she had with Mr Moore in 2005, 3 years before the deterioration in his condition, as the reason she did not comply with her statutory duties because he allegedly said that his staff did not want to move. Even if this was accepted (which it’s not) Ms Beattie not return to the issue in 2008 when Mr Moore’s condition deteriorated and he started having falls at work or indeed at any point in the 5 years she worked with Mr Moore.

8. Ms. Beattie’s Alleged Reasonable Adjustments

8.1 The evidence does not support Ms. Beattie’s claim to have conducted an appropriate assessment of Mr. Moore (black bundle paragraph 8 page 58) or indeed that she made any reasonable adjustments (black bundle paragraph 123 page 233) i.e.:

I.                                      Ms. Beattie’s failure to provide a satisfactory response as to why there is no record of the assessment is evidence that no such assessment was made;
II.                                     In her evidence to the Tribunal the NIPS Head of Equality and Diversity said she would expect some form of an audit trail to show a disability assessment had been conducted;
III.                                                                  Mr. McGuckin and Mrs Hewitt’s

evidence to Tribunal that they were surprised to hear of the full extent of Mr. Moore’s disadvantage is evidence that a proper assessment was not conducted inline with Paragraph 5.12 and 5.20 of the Equality commission Code of Practice (Red bundle pages 23 and
31);

IV. The absence of any reference to the reasonable adjustments which Ms Beattie claims to have made at the l Formal Review on 27 March 2010 (black bundle paragraph h page 428) is evidence that no reasonable adjustments were made. Clearly this is information which Attendance Management Branch would need to know in managing Mr Moore’s sick absence. Similarly Ms Beattie’s alleged adjustments were not mentioned in the OHS referral form dated 12 April 2010 (Black Bundle page 428) which again is information that would have been essential to OHS in considering Mr Moore’s absence.

V. Ms. Beattie acknowledged that she did not tell Mr Moore that his workload would have been reduced pro-rata to his working hours and confirmed that reduced hours would have meant reduced pay

VI. Ms. Beattie did not explain to the Tribunal why she did not repeat her 2005 offer to Mr. Moore to move office after the deterioration in his condition in2008;

VII.                                   The alleged lightening of the workload is dealt with at paragraph 7.1(iii) of this submission;
VIII.                                  Ms. Beattie’s claim that re-writing Mr. Moore’s work and writing his policy work by way of a reasonable adjustment is dealt with separately under harassment;
IX.                                    Ms. Beattie’s claim that she provided Mr Moore with a 1/2 hour flexi every day by way of a reasonable adjustment is dealt separately under direct discrimination and harassment;
X.                                     The evidence heard by the Tribunal did not support Ms. Beattie’s claim that by way of reasonable adjustment she received, and expected, a higher output from her other B1s than from Mr. Moore (black bundle paragraph 29g page204). Mr. Wilson’s told the Tribunal that when he was acting Head of Personnel Mr Moore’s post was more heavily weighted than the other two areas.
Xl.                                    Ms. Beattie’s statement that by way of reasonable adjustment she ignored Mr. Moore forgetting meetings and appointments (Black bundle page 233) is evidence that she ignored what should have been an indication that Mr Moore needed help.
XII.                                   Ms Beattie’s evidence that she delayed the start of the B1 meetings by half an hour especially to facilitate Mr Moore lacked credibility given that the timings remain unchanged more than a year after he left. Similarly her evidence that she set the timings and locations of Personnel Governors meetings to assist him also lacks credibility given that the meetings are still held at the same time in the same locations.

XIII. The reasonable adjustments
which Ms Beattie says she made, most of which are simple invention, would not in any case have removed the substantial disadvantages Mr Moore faced.

9. The Impact of NIPS Failure to make Adjustment

9.1 The full impact of NIPS failure to make reasonable adjustments is as follows

I. The impact of Mr. Moore’s medication in terms of exhaustion, lack of ability to concentrate and forgetfulness caused him considerable stress coping in a post which required considered analysis of complex issues, high levels of concentration and the ability to take in and remember detail. In addition the heavy workload meant that Mr. Moore often had to do additional work at home.

II. Miss Morrow’s confirmed to the Tribunal that Mr Moore told her NIPS criticism of the resulting deterioration in his performance left him humiliated and without any confidence in his own ability. He also told her that he feared for his job and had no option but to seek ill health retirement;

III. Mr. Moore’s serious mobility difficulties and the severe pains associated with that made even the simplest things a struggle such as lifting files out of cupboards, getting to meetings etc., carrying papers and even just getting into the office in the morning.

IV. Mr Moore faced the humiliation of looking for someone to help him leave the building during practice and real evacuations. His safety was thereby placed at risk.

V. Mr. Moore’s Personal care issues resulting from limited bladder function also presented huge practical and emotional difficulties in terms of taking up to 15 or 20 minutes trying to go to the toilet and changing soiled continence pads without the privacy and support rails offered by disabled toilets. Long meetings were a particular difficulty without the benefit of comfort breaks;

Case Law - damages

10. The substantial detriment incurred by Mr Moore over a prolonged period demonstrates that his case bears no resemblance to the facts that gave rise to the findings in Latif v Project Management Institute (PMI). Here the tribunal found that PMI’s failure was an isolated incident rather than a prolonged campaign, and that it resulted from a misunderstanding rather than from any malice or intention to prejudice or humiliate Ms Latif. In addition, Ms Latif passed the exam thereby suffering no permanent detriment.

11. As outlined above NIPS failure to make reasonable adjustments caused Mr Moore considerable distress over a 2-year period and for 18 months of that time he was. subjected to relentless criticism over his disability related drop in performance. In addition in Mr Moore’s case he was left with no choice but to leave his employment of 28 years for fear of losing his job. There was no misunderstanding, MS Beattie and NIPS had full knowledge of Mr Moore’s circumstances.

Section B: Indirect Discrimination

The relevant Law

To succeed with an indirect disability discrimination claim an employee must be disadvantaged by a “provision, criterion or practice” of the employer and he must also show that this measure puts or would put other persons sharing the claimant’s disability at a disadvantage.

12. The evidence supports Mr.. Moore’s case that there is prima fade evidence that Ms. Beattie and vicariously NIPS indirectly discriminated against him on grounds of his disability. Ms. Beattie’s and NIPS failure to apply the following NIPS and NICS policies and procedures denied Mr. Moore the protection that they offer in terms of ensuring the organisation’s compliance with its statutory duties under Section 4A of the DDA i.e.

Failure to Apply Reasonable Adjustment Policy

13. Even if Ms. Beattie’s case was accepted (which it’s not) her practice of assessing Mr. Moore’s disadvantages through the one to one meetings instead of following the NIPS Reasonable Adjustment Policy resulted in him being placed at a substantial disadvantage to his colleagues in terms of his difficulties as set out at section A 1 of this submission i.e.

I. Had Paragraph 13— 19 (red bundle page 102) of the policy been complied, a disability evaluation form would have been completed detailing the full extent and impact of his disability and he would have been referred to OHS. As a result the full and proper assessment outlined at paragraph 5.20 of the Disability Code of practice, which in addition to a professional medical input should also have included input from the welfare officer and the disability Liaison officer, would have been conducted. Consequently, reasonable
adjustments would been made to remove the substantial disadvantages he had in comparison to colleagues;

II. Had paragraph 20 (red bundle page 102) of the policy been complied with a Personal Emergency Evacuation Plan would have been completed thereby removing the substantial disadvantage he faced in evacuating the building compared to other staff

Failure to Apply NIC / NICS Performance Management Policies and Guidance.
Managing Underperformance

14. Ms. Beattie’s practice of not using
the informal inefficiency procedures to manage the deterioration in Mr. Moore’s performance placed him at a significant disadvantage to his colleagues in terms of the affect his disability had on his ability to perform efficiently.

I. At Tribunal Ms. Beattie was
unable to satisfactorily answer why she did not apply the NICS informal inefficiency Policy (red bundle paragraph 1.1 pages 266 to 267) when at the 1^st formal review (Black Bundle page 363) she said she was aware Mr. Moore’s performance had deteriorated due to his medication. The Tribunal heard evidence from Mrs. McCarthy that she noticed the drop in Mr. Moore’s performance from early 2008 and Mr Wilson said that he too was aware of the impact of Mr Moore’s medication.

II. In her evidence to the Tribunal the NIPS Head of Equality and Diversity said where someone’s performance had deteriorated due to disability she would expect the line manager to intervene quickly to agree a performance improvement plan with the individual that may include reasonable adjustments.

III. She also accepted this was partly why Performance Management was a key objective in the NIPS Diversity Strategy as it ensured NIPS compliance with their statutory duties under the DDA.

IV. The correct application of the policy would have ensured early intervention to assist Mr. Moore return to effectiveness and thus removed the need for him to seek ill health retirement. He would have been referred to OHS.

Completion of Mid-Year and Annual Reports

15. Ms. Beattie’s practice of not completing an annual report on Mr Moore from the date of his 2nd operation in 2007 placed him at a substantial disadvantage to his colleagues whose performance had not dropped due to

disability.

I. The Head of Equality and
Diversity gave evidence that a manager had a greater duty to follow the performance management procedures where an individual’s performance deteriorated due to a disability.

II. Ms Morrow informed the Tribunal that the monitoring and auditing of annual reports was part of the function of the claimant’s branch, Performance and Conduct Management Branch;

Ill. In her evidence to the Tribunal the Head of Equality and Diversity confirmed that this was the reason why monitoring of the completion of annual reports was included as an action point under the Diversity Strategy (black bundle pages 361 and 375 top). She added she was shocked to hear Mr. Moore’s reports had not been completed as the statistics presented to Senior Management showed all annual reports had been completed within Ms. Beattie’s area.

IV. One of the responsibilities for the Departmental Equal Opportunities Officer is to monitoring of the performance management system in terms of any inconsistencies relating to disability (black bundle 3^rd bullet page 54 top)

V. Ms. Beattie failed to provide a satisfactory answer to the Tribunal why the statistics showed all reports in her area had been completed when both she and the Director, Mr. McGuckin had direct knowledge that this was incorrect.

Instead Ms Beattie made a belated effort to rely on the computer system
— which merely records overall performance markings - to suggest that she had completed end year reports on Mr Moore. This is clearly not credible given that Ms Beattie’s own evidence to the Tribunal was that she did not complete a report on Mr Moore for 2009/2010 yet the computer shows an overall performance mark for that year.

In practice Pay Branch will not process a member of staffs pay award unless the computer shows a satisfactory report marking. Consequently Mr Moore’s Branch’s practice was to input satisfactory markings even where reports had not been returned to them so as to facilitate the pay process. If NIPS completed end year reports on Mr Moore why were they not disclosed with those for 2005/2006 and 2006/2007? Why indeed did Ms Murnaghan not say her instructions were that reports had been completed, instead of trying to challenge the fact that there were 3 full years of reports missing?

VI. In clarifying her responses to the Tribunal at the end of her evidence Ms Beattie referred to the claimant’s statement in his IT application (black bundle page 19 (15 lines down

from the top of the page)) that a performance review had been conducted. On reflection the claimant believes that this was in fact a discussion relating to Ms Beattie telling him that he was not being recommended for a non- consolidated bonus rather than a performance review. However, even if one performance review was carried out, this in no way detracts from his fundamental case that Ms Beattie did not correctly manage the disability related deterioration in his performance (black bundle paragraph 10 page 258). The fact is that Ms Beattie did not agree a performance improvement plan with him or seek in any way to help him return to efficiency. Furthermore until such time as Ms Beattie committed her assessment of his performance to paper by way of a mid-year and end year REPORT, there was no audit trail or any method for anyone else to ensure she was complying with her statutory duties under the DDA.

VII. Had Ms. Beattie completed mid and end year appraisal reports on Mr. Moore to reflect the drop in his performance she outlines extensively at paragraphs 37, 38, 53, 54,& 55 of her IT response (pages 66,67,71 & 72 bundle black) and paragraphs 15, 17 & 123 of her witness statement (pages 200,201 and 233 bundle black) his branch would have sought to ensure the correct procedures had been followed to help him return to effectiveness. As a result reasonable adjustments would been made to remove the substantial disadvantages he had in comparison to colleagues

SECTION C: DIRECT DISCRIMINATION

THE RELEVANT LAW

THE DDA PROVIDES

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

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

16. Ms. Beattie and vicariously NIPS directly discriminated against Mr. Moore by treating the following staff more favourably:

I. Mr. Moore was treated less favourably by Ms. Beattie’s practice of restricting his accumulation of time worked outside of the Flexi Scheme to 34 hour per day in comparison to Mr. McFeeters and Ms. Pyper.

· Mr. Wilson’s evidence to the
Tribunal that both he and Mr. McFeeters worked outside the Flexi

Scheme discredited Ms. Beattie’s statement at paragraphs 29 c & d and paragraph 43 of her witness statement (pages 204 and 209 black bundle).

• Mr. Wilson also confirmed Mr.
McFeeters accumulated flexi hours for work he did at weekends that would have resulted in more than 1/2 hour per day. Ms. Pyper confirmed that although she wasn’t in until later in the morning she would work into the evening thereby accumulating more than 1½ hour per day.

• Ms. Beattie’s efforts to present
Mr. Moore’s 15 days flexi during 2009 as unreasonable is not credible when set in the context of the Flexi scheme entitlement of accumulating 39 days per year. The Prison Service failed to respond to Mr Moore’s request to provide the same detailed analysis it conducted on him with respect to the number of days Mr. McFeeters had accumulated working outside the flexi scheme during the same period.

II. The claimant contends that Ms. Beattie had become frustrated with his deterioration in performance due to his disability and that influenced the way she managed him.

Ill. Mr. Moore was treated less
favourably compared to Mr. Wilson and Mrs. Hewitt who confirmed in their evidence to the Tribunal that they received Annual Reports. Ms. Beattie stopped completing Annual Reports on Mr. Moore when his performance deteriorated due to his disability.

IV. Mr. Moore was treated less
favourably than Mr. Wilson who confirmed that he was permitted by Ms. Beattie to work from 7.30 to 15.30 hours, outside the flexi scheme. In contrast Mr. Moore was criticized for working from 10.00 to 19.00 hours and sometimes later.

V. Ms. Beattie was unable to provide a satisfactory reason to the Tribunal as to why she would criticize Mr.
Moore for not being available to support senior managers but not Mr
Wilson. Mr Moore was available to support Senior Management for up to
3.5 hours more that Mr Wilson in the afternoon/evening when they often
engaged with him on work issues.

VI. Mr. Moore was treated less
favourably than Senior Management who were permitted to work from home using encrypted Iaptops. In contrast to Mr. Moore was not afforded the same opportunity. Mr. McGuckin’s evidence to Tribunal that his situation did not compare to Mr Moore’s request in not credible. If he was permitted to work from home on weekends then why was it not possible for Mr Moore to do so I or 2 days a week or in the mornings.

VII. Mr. Moore was treated less favourably than Ms. Beattie whose work and responsibilities were lightened for a period of 3 months after she returned from sick leave in 2008. This in comparison to Mr. Moore who had no adjustments despite the deterioration in his disability (black bundle page 381).

VIII. Ms. Beattie who was awarded a non-consolidated performance bonus during the year she was off sick whereas Mr. Moore was not even considered. Mr. Wilson’s evidence to the Tribunal forced Mr. McGuckin to retract his witness statement on this issue (black bundle paragraphs 5, 6 and 7 pages 248 and 249).

Ms Beattie was legally bound to help Mr Moore address the substantial disadvantages resulting from his disability but instead she treated him less favourably than his able bodied colleagues and in so doing exacerbated the disadvantage he faced rather than removing it. In the absence of any reasonable explanation or justification for the difference in treatment the Tribunal can only conclude Mr Moore was discriminated against on grounds of disability.

Section D: Harassment

Relevant Law

Meaning of “harassment”

3B. - (1) for the purposes of this Part, a person subjects a disabled person to harassment where, for a reason which relates to

the disabled person’s disability, he engages in unwanted conduct which has the purpose or effect of –

(a) violating the disabled person’s dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2) Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect.”

17. The evidence supports Mr. Moore’s case that he was the subject of an 18-month campaign of harassment from Ms. Beattie and that NIPS is vicariously liable.

Constant criticism over an 18 month period

18. Ms. Beattie’s statement that she re-wrote Mr. Moore’s work and provided ‘constructive criticism’ by way of reasonable adjustment (paragraphs 15 and 17 and 123 pages 200,201 and 233) is indirect evidence of her constant criticism.

I. Ms. Beattie failed to provide a satisfactory explanation to the Tribunal as to how her ‘constructive criticism’ over a sustained period of 18 months could help Mr. Moore to return to efficiency without any form of reasonable adjustment to overcome his concentration difficulties.

II. Ms Beattie failed to explain to the
Tribunal why she attributed her criticisms of Mr Moore to him being a
newly promoted B1 when her assessment of Mr Moore being in the top
15% of the Bi grade happened after his promotion in June 2006.

III. In her evidence to the Tribunal the Head of Equality and Diversity accepted that if it was proven that Ms. Beattie criticized Mr. Moore for 18 months without offering any form of reasonable adjustment to help him return to efficiency she would be guilty of harassment as defined at paragraph 2.2.1 of the NIPS Bullying and Harassment Statement (red bundle page 180).)

19. Ms. Beattie and Mr. McGuckin’s assertion that Mr. Moore’s working practice was for his own benefit (black bundle paragraph 40 page 208 and paragraph 7 page 249) is indicative of the criticism that Mr. Moore suffered due to difficulties associated with the mobility, personal care and exercise regime.

20. Ms. Beattie’s actions in seeking a
transfer for Mr Moore on grounds of inappropriate behavior was unreasonable and a deliberate act to malign his good standing in the organization (see comments from 2006/2007 annual reports black bundle pages 270 and 271).

Undermining Mr Moore

21. Ms. Beattie’s statement that she
wrote policy in Mr. Moore’s area when he failed to meet deadlines by way of reasonable adjustment (black bundle paragraph 123 page 233) is direct evidence of her undermining him due to his disability. Ms. Beattie failed to provide the Tribunal with an explanation as to why she did not lighten Mr. Moore’s workload by removing his responsibility for policy. Ms. Beattie also failed to acknowledge that her actions put Mr Moore under more stress in that he continued to feel under pressure to deliver the policy papers.

22. Mr Wilson confirmed to the
Tribunal that Attendance Management never received Ms Beattie’s input
18

as line manager in relation to Mr Moore’s special leave application in April 2008. The facts show that the request was finally approved without her recommendation 9 months later in January 2009 (Black bundle page 441).

23. Ms. Beattie failed to provide the
Tribunal with a reasonable explanation as to why the legitimate claim which Mr Moore made in relation to his damaged laptop was completely ignored by the Respondents (page 174 black bundle).

24. Once again Ms Beattie not only
failed to comply with her statutory obligations by helping him with the disadvantages posed by his disability but rather her actions exacerbated the impact of his disability and created a hostile and degrading working environment for him.

SECTION E: CONSTRUCTIVE DISMISSAL

Relevant Law

25. Under the 1995 Disability
Discrimination Act (DDA), it is discriminatory for employers not to make reasonable adjustments if a provision, criterion or practice disadvantages a disabled person. In Fareham College v Walters, the Employment Appeal Tribunal (EAT) said that if an employer fails to make reasonable adjustments, any subsequent dismissal could, in itself, be an unlawful act of disability discrimination.

26. Section 95(1 )(c) of the
Employment Rights Act 1966 states that an employee is dismissed where:
the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.
This is commonly referred to as ‘constructive dismissal’. In a seminal judgment in relation to constructive dismissal in the Court of Appeal in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27, Lord Denning ruled:

27. An employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. The employee in those circumstances is entitled to leave without notice or to give notice, but the conduct in either case must be sufficiently serious to entitle him to leave at once. Moreover, the employee must make up his mind soon after the conduct of which he complains. If he continues for any length of time

without leaving, he will be regarded as having elected to affirm the contract and will lose his right to treat himself as discharged.

28. As set out by the Court of Appeal in Western Excavating and developed by subsequent case law (see below), the contract test sets out four conditions that must be satisfied before a constructive dismissal is made out. To establish the existence of circumstances in which the employee is entitled to terminate the contract without notice, an employee must initially show that:

- the employer was in actual or anticipatory breach of the contract and
- that breach was sufficiently serious to justify the employee resigning, or
else it must be in the last of a series of incidents (the ‘last straw’) that,
taken together, justify his or her leaving.

29. Satisfying these two conditions gives rise to a ‘repudiatory’ or fundamental breach of contract by the employer. This entitles the employee to consider himself or herself discharged from further performance of the contract, which would, in effect, bring the contract to an end. However, the employee might continue to affirm the contract. So, in order to establish a constructive dismissal, two further conditions must be satisfied:

- the employee must resign in response to the breach and not for some other unconnected reason; and - the employee must not delay too long in terminating the contract in response to the employer’s breach, otherwise he or she may be deemed to have waived the breach and affirmed the contract. Where there is a ‘last straw’ (see below), this is taken to provide the determining date in relation to terminating the contract (Abbey National plc v Robinson 20.11.2000 EAT 743/99).

30. It is contended that the constructive dismissal claim brought by Mr Moore satisfies all four of these conditions. Contracts of employment have certain implied terms. The most generally recognised of these terms is: - the duty of mutual trust and confidence between employer and employee (see below).

31. Other implied terms recognised in case law which are pertinent to the present case include:

- The duty to render reasonable support to an employee to ensure that the employee can carry out the duties of his or her job without harassment and disruption by fellow workers ( Wigan Borough Council v Davies [1979] IRLR 127). This duty overlaps with the duty of trust and confidence.

- the Employment Appeals Tribunal stated in Courtaulds Northern Textiles Ltd v Andrew [1979] IRLR 84 that:

any conduct which is likely to destroy or seriously to damage [the relationship of trust and confidence] must be something which goes to the root of the contract, which is really fundamental in its effect upon the contractual relationship
20

32. The duty of mutual trust and confidence was recognised in the House of Lords in Malik and another v Bank of Credit and Commerce International SA (1997] IRLR 462, where the duty was described thus:

An employer shall not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.

33. Their lordships established inter alia that trust and confidence may be undermined even though the conduct in question is not directed specifically at the employee. This has relevance in the case under consideration here with respect to the intent of Ms Beattie in failing to apply the informal inefficiency procedures

34. Whether the implicit term of trust and confidence has been breached is a question of fact: the test is objective, the employer’s motive and intention being wholly irrelevant (Lord Steyn in Malik and another v Bank of Credit and Commerce International SA (1997] IRLR 462). This has particular relevance in the case under consideration here with respect to:
- Ms Beattie’s failure to conduct a ‘proper assessment’ of Mr Moore’s needs in line with the Paragraph 5.20 of the equality Commissions Code
- Ms Beattie’s actions in making a number of assumptions about Mr Moore’s deterioration in health and the substantial disadvantages this presented him with;
- Ms Beattie’s actions in criticizing Mr Moore for failing to provide concise submissions and meeting deadlines when this was due to the effect of his medication
- the behaviour of Ms Beattie in implying to Mr Moore that he may receive an adverse report if his performance did not improve
- the behavior of Ms Beattie by failing to contact Mr Moore once he was off sick to offer reasonable adjustments to help him return to effectiveness

35. It is not necessary that either the employee or the employer know that there has been a breach of contract. What matters is that there is an objective causal link between the conduct that in fact amounts to a breach, and the resignation (Hay v Glasgow City Council 24.3.1998 Scottish EAT 1301/97).

36. The Employment Appeals Tribunal confirmed in Hilton International Hotels (UK) Ltd v Protopapa [1990] IRLR 316) that an employer is bound by acts done by employees in the course of their employment — and made a finding of constructive dismissal accordingly.

37. The Employment Appeals Tribunal made a ruling in Whitbread plc t/a Thresher v Gullyes 1.7.94 EAT 478/92 regarding an employee who was promoted to a position for which she lacked experience and was promised

support and resources which were not forthcoming. The employer was found to be in fundamental breach of the implied term that the employer should not act so as to prevent the employee from being able to carry out her part of the contract. This has relevance in relation to Mr Moore seeking ill health retirement, as he was not provided with sufficient support to return to efficiency.

38. Last straw. A series of acts may cumulatively amount to a repudiatory breach of the implied duty of trust and confidence, notwithstanding the fact that some of the incidents making up the course of conduct are not sufficiently serious in themselves to establish a repudiatory breach in their own right (Lewis v Motorworld Garages Ltd [1085] IRLR 465). In these circumstances, the last incident, which need not in itself be a breach of contract is the ‘last straw’ (Irving v Thwaite Holmes Kitchens 18.12.1990 Court of Appeal, N. Ireland; Abbey National plc v Robinson 20.11.2000 EAT 743/99). The relevance of this to the case presented here is clear.

39. In ‘last straw.’ cases it is not relevant that the employee has waived an earlier incident that in itself constitutes a repudiatory breach (Abbey National plc v Robinson 2 11.2000 EAT 74 3/99). Ms Murnaghan suggested that since Mr Moore did not react to certain alleged breaches of contract by resigning at the time of the alleged breach (i.e. that he affirmed the contract), then they were not truly breaches. This argument is clearly specious. It is evident that at any time one party to a contract may break that contract but the other party seeks to repair the damage by some means or other. Nevertheless, a series of such breaches may prove to be so damaging that the other party is finally led to conclude that the contract has been repudiated to such an extent that it cannot be repaired. In such a case, the earlier breaches obviously come into the account and this is clearly recognised in constructive dismissal case law.

40. An employer’s conduct may also give rise to a continuing breach of contract, as in (WA Goold (Pearmak) Ltd v McConnell and another [1995] IRLR 516), where the breach consisted of a failure to provide or operate a proper grievance procedure. There are direct parallels between McConnell and the case under consideration here with reference to Mr Moore’s failure to secure a response from NIPS in terms of the reasonable adjustments he had requested (section A)

41. The Employment Rights Act makes clear at s.95(1 )(c) that an employee who resigns on notice may still claim to have been constructively dismissed. The Applicant in this case resigned on notice

42. In Sandhu v Jan do Rijk Transport the Court of Appeal has recently considered the circumstances in which a resignation may in reality be a dismissal. In this case, the employee was summoned to a meeting without being told why. The meeting began with his manager saying ‘Your contract, we are going to finish it’ and then allegations of misconduct were raised against him. It was proposed that his contract should terminate in three weeks but he successfully negotiated different terms - that he should

remain employed for a further three months and then leave. He then claimed unfair dismissal, arguing that he did not choose to resign but was dismissed. The Court of Appeal agreed. He was just ‘doing his best... to salvage what he could from the inevitable fact that he was going to be dismissed’.

The argument

43. The relevance to Mr Moore’s case is that the facts and timeline support Mr. Moore’s case that he had no choice but to seek ill health retirement as the NIPS fundamental breach of his contract left him fearful of being dismissed on grounds of inefficiency due to the disability related deterioration of his performance.

44. Before his 2nd operation in 2007
Mr. Moore was a highly respected and valued member of NIPS, assessed by Ms. Beattie as being in the top 15% of his grade (black folder pages 270, 271, 275 and 276).

45. On returning from his second
operation in 2008 NIPS subjected Mr. Moore to an 18 month period of constant criticism (Section D) for his disability related deterioration in performance whilst failing to make any reasonable adjustment to assist him return to efficiency (Section A and B).

46. The evidence supports Mr.
Moore’s claim that he went of sick in February 2010 after a meeting with Ms. Beattie when she informed him that he may receive an adverse report if he did not improve his performance whilst at the same time making no offer of reasonable adjustments to assist him in doing so. Ms Beattie acknowledge in her evidence to the tribunal that Mr Moore had asked her in February 2010 if he was going to get an adverse report though she said she didn’t think he used those exact words. Mr Moore is adamant that Ms Beattie replied that this was a possibility if his performance didn’t improve. The fact that he went off sick within a few days never to return supports Mr Moore’s contention that he was concerned that if he remained in work his state of mind alongside the impact of his medication would lead to his performance deteriorating further and provide Ms Beattie with yet more opportunities to criticize him leading to an adverse report and dismissal.

47. At the 151 formal review (Black
Bundle page 363) Ms. Beattie acknowledged that she informed Mr. Moore of the deterioration of his performance just before he went off sick. The same record makes no reference to any discussions Ms. Beattie had with Mr. Moore about making reasonable adjustments to assist him return to efficiency;

48. Miss Morrow informed the
Tribunal that Mr. Moore told her at the time that he was going off sick because he was fearful he would lose his job if he stayed without any

reasonable adjustments to help him return to efficiency.

49. The facts support Mr. Moore’s
case that he believed it was futile to make a formal complaint against Ms.
Beattie:

I. Ms Beattie confirmed that Mr McGuckin had never offered her any advice or indeed spoken to her at all with respect to the informal complaints which Mr Moore made to him

II. Mr. Moore knew that Ms. Beattie acted with impunity in terms of not completing his annual report

Ill. Mr. Moore’s evidence that Mr. McGuckin’s declined to deal with his special leave request until Ms. Beattie’s return from sick leave speaks to the fact that he deferred to her judgment in even straightforward issues

IV. Mr. Moore’s position as Head of
Performance Management gave him. a working knowledge of Mr. McGuckin and Mr. Masefield’s deliberate failure to provide Mr. Johnston with due process in terms of his dismissal.

50. The evidence shows Ms.
Beattie’s failed in her responsibility as Mr. Moore’s line manager to comply with the NIPS Sick Absence Policy (red bundle paragraph 3.2 page 132) and the LRA guidance (red bundle paragraph (e) and 7.1 on pages 292 and 293 bundle) in terms of contacting him to consider reasonable adjustments to help him return to effectiveness.

51. In his evidence to the tribunal Mr.
Millard, Head of Attendance Management Branch confirmed Ms. Beattie’s statement (black bundle paragraph 59 page 214) was untrue where she said she had asked his Branch to maintain contact with Mr. Moore. Mr. Millard’s evidence was that Ms. Beattie hadn’t mentioned this to him. He added that as far as he was concerned he had reminded Ms. Beattie at the Vt formal review that it was her responsibility to keep in contact with Mr. Moore and that he expected that she would do so.

52. Ms. Beattie’s claim (black bundle
paragraph 59 page 214) that she had also asked Mrs. Hewitt’s staff to maintain regular personal contact with Mr. Moore and ensure any possible assistance was offered was also confirmed as untrue. Ms Hewitt’s evidence to the Tribunal that her branch met their responsibility by contacting Mr Moore in the first couple of weeks of his absence to offer counseling and welfare support. Ms Hewitt was adamant in her evidence that it was not her responsibility to maintain contact or to offer Mr Moore reasonable adjustments.

Consequently no-one contacted Mr. Moore about a transfer to a less pressurized post despite Ms. Beattie saying at the l formal review that she thought he would benefit from a move out of Personnel. Nor did anyone contact him to discuss any other form of reasonable adjustment
24

such as lightening the workload and, most importantly of all there was absolutely no follow up to the discussion at the 81 meeting about working from home.

53. Ms. Beattie’s claim at paragraph 25 of her statement (black bundle page 203) that she didn’t consider reasonable adjustments to facilitate Mr. Moore’s return to work because Mr. Milford told her he wanted medical retirement does not fit the timeline. Ms. Beattie’s meeting with Mr. Milford took place on 27 May 2010 (black bundle page 328) 3 1/2 months after Mr. Moore went off sick and neither she, nor anyone acting on her behalf, had made any attempt to contact him about reasonable adjustments in the intervening period.

54. It is a fact that Mr Moore
continued working in the face of considerable medical difficulties through sheer will power and there is nothing to suggest that he would not have continued to do so with the assistance of reasonable adjustments. Dr Mill’s record of Mr Moore’s appointment on 10 May 2010 (black bundle page 315) reflects the fact that there were issues relating to Mr Moore’s workload and the support he received. Dr Mills continues by saying
“Absence was triggered as he could no longer cape with the combination of physical health and workplace problems. There is clearly an interaction between the two.”

55. The evidence supports Mr.
Moore’s case that by the end of March 2010 he was left with no hope that the reasonable adjustments he had previously requested would be made and in order to avoid dismissal on the grounds of the disability related deterioration in his performance he had to take ill health retirement. Ms Beattie confirmed in her evidence that Mr Moore had never mentioned medical retirement at any time either before going off sick in Feb 2010 or at any time previously.

SECTION F: VICTIMISATION

56. Ms. Beattie fulfilled Mr. Moore’s fears of taking any form of action against her whilst he was still at work by her deliberate and calculated campaign of victimizing Mr. Moore through both her and NIPS IT proceedings. Ms. Beattie and NIPS were successful to a degree in their efforts to detract from their own actions and to humiliate Mr. Moore in front of a considerable number of his former colleagues. The Tribunal’s attention was deflected to issues that NIPS knew were completely unrelated to Mr. Moore’s case as the following evidence shows:

I. NIPS and Ms. Beattie failed to provide any supporting evidence by way of witness statements or documents in support of the allegation (black bundle paragraph 64 page 104) that Mr. Moore sought medical

retirement because he had created a difficult working environment for himself because of his conduct towards women.

II. The fact that Ms. Beattie and NIPS did not refer to such a serious allegation in their witness statement is indicative that the intention was to discredit Mr. Moore and his claim to the Tribunal.

Ill. In any event the facts proved this spurious allegation untrue i.e.

• Mr. Wilson told this Tribunal that he had never heard Mr. Moore make inappropriate comments towards women

• Ms. Murnaghan and Ms Pyper confirmed that Mrs. McMaster (one of the supposed recipients of Mr. Moore’s alleged inappropriate behaviour) was a very good friend of Mr. Moore’s and remained so after he left the Service,

• Mrs. Hewitt informed the Tribunal that she and Mr. Moore had reestablished a professional working relationship

• Mrs Hewitt’s informal complaint was the only one raised against Mr. Moore and in Mrs Hewitt’s own words it had been ‘done and dusted’ 8 months before Mr. Moore sought ill health retirement

In contrast Mr. Moore’s case as to why he left the Service fits the timeline of events — see Section E above (paragraphs 39-52)

CONCLUSION

57. The claimant contends that the evidence in this case has shown that his health began to deteriorate and to impact on his work after his second operation in 2008. He further contends that the respondents failed to comply with their responsibilities under the DDA and that this failure was compounded by harassment of the claimant and the detrimental treatment he suffered compared to able bodied colleagues. In so doing the NIPS fundamentally breached its contract with the claimant with the result that after 28 years of loyal and effective service the claimant was left with no alternative but to leave the service through ill health retirement.

58. Put simply NIPS and MS Beattie did not make the reasonable adjustments needed to ensure the claimant remained an effective member of staff. Moreover in the certain knowledge that he was struggling with his duties because of the impact of his disability the NIPS and Ms Beattie in particular, rather than help the claimant, subjected him instead to constant and relentless criticism. Ms Beattie saw this as helping the claimant. The claimant rightly saw this as relentless criticism over a period of approximately 18 months from his return to duty in 2008, without any effort being made on the part of Ms Beattie to acknowledge why his performance had deteriorated and to properly manage the situation. This criticism and constant undermining of the claimant created an intimidating, hostile, degrading, humiliating and offensive environment for him.

59. ln February 2010 Ms Beattie intimated that he would need to show improvement or she may have cause to issue an adverse report. Ms Beattie and NIPS once again failed to comply with their statutory duties under the DDA by considering the impact the claimant’s disability was having on his performance and to consider reasonable adjustments to help him return to effectiveness.

60. The claimant felt trapped. By this stage he had lost all confidence in himself and was very fearful for his job and concerned that if he remained in work that his state of mind, including the effects of his medication which Ms Beattie had acknowledged, would only present Ms Beattie with further opportunities to criticise his performance and enable her to initiate the inefficiency process against him leading to his dismissal.

61 . The claimant was also very conscious of the manner in which his employers dealt with the dismissal of a senior colleague, Alan Johnston which Mr Moore’s Branch dealt with. In Mr Johnston’s case the Civil Service Appeal Board upheld his appeal against his unfair dismissal. The Appeal Board found that NIPS had disregarded due process by not applying the Performance Management Policy and commented that they didn’t understand how the internal board hadn’t realised that any appeal to the CSAB was bound to succeed. Ms Beattie’s comment that she didn’t care if we breached the procedures in Mr Johnston’s case and that she just wanted rid of him (which Mr Moore is adamant that she made even though she denies it) left him in no doubt that she would have no hesitation in adopting the same approach with him. Mr Moore felt that he had no option but to go off on sick leave.

62. However even at that stage the claimant did not seek ill health retirement as a way out. He hoped the Service would comply with its sick absence procedures and reasonable adjustment policy. He hoped they would discuss with him the potential of transferring to a less demanding post and or working from home as he had previously requested. Indeed he had cause to be hopeful after the 1st formal review in the procedures on 25 March 2010 (black bundle page 339) when Ms Beattie and Mr Millard commented on looking for a transfer for the claimant and that everything would be done to assist him in returning to work.

63. The last straw came when these proved to be empty words and it was clear nothing was being done to make reasonable adjustments for his return to work, the claimant decided to ask for ill health retirement and asked the NIPSA representative to write to his consultant to seek his assistance.

64. As indicated above Ms Beattie’s and NIPS contention that the claimant sought retirement as a result of unsubstantiated allegations against him do not stand up to scrutiny. However they are right to acknowledge that it was external factors which led the claimant to seek ill health retirement but it was their failure to make reasonable adjustments and Ms Beattie’s

relentless criticism and harassment which prompted the claimant to do so. He would never have been in that position had Ms Beattie and NIPS properly followed procedures and applied reasonable adjustments.

65. The net result of Ms Beattie and the Prison Service’s actions, or lack thereof was that the civil service lost a valued member of staff and a loyal and productive worker lost his job.

66. The terms of Mr Moore’s contract are referred to in his letter of appointment dated 24 June 1982. This states that the appointment will be governed by the terms of leaflet P8/11. The Respondents have not disclosed this along with the appointment letter but the claimant believes that it sets out the key elements of what is now called the NICS Staff Handbook.

67. The NICS Staff Handbook applies to all civil servants and is agreed between management and the unions. It sets out the parameters which all Departments must follow in establishing procedures covering any aspect of a civil servant’s terms and conditions of service. It includes procedures for performance management, sick absence and for dealing with staff with disabilities in the workplace. In addition to the NICS Staff Handbook civil servants are also bound by circulars and notices to staff which may be issued from time to time on specific issues and policies developed by Departments based on the Staff Handbook.

68. The NIPS reasonable Adjustments Policy, the NIPS Performance Management Policy and the NIPS Sick Absence Procedures all form part of the claimant’s contract of employment. The Respondents’ failure to apply any of these policies is a clear and fundamental breach of the claimant’s contract. As a result of that breach the claimant became so stressed that he was unable to cope with the demands of his job as well as coping with the substantial disadvantage resulting from his disability which rather than addressing the Respondents had exacerbated.

69. In all the circumstances the
claimant had no option but to resign through ill health retirement. He refutes absolutely that ha left by mutual consent because he certainly would not have resigned had the adjustments been put in place to allow him to continue working and he not been subjected to relentless criticism, detrimental treatment and harassment. The claimant firmly believes that had circumstances been different he would have continued to work with help and support until normal retirement age. He further contends that Ms employers are guilty of a repudiatory breach of contract and that he left the Prison Service because of that breach.

THE INDUSTRIAL AND EMPLOYMENT TRIBUNALS

Case No:

Between

DAVID MOORE

-V-

NORTHERN IRELAND PRISON SERVICE

The Respondent’s Submissions

I. Introduction

1. This case was predicated on two primary grounds. Firstly, that the Claimant had been constructively dismissed; and secondly that he had been
discriminated against on the grounds of his disability.

2. Accordingly the Tribunal will have to determine the following questions:

• Was there mutual agreement between the parties to terminate the Claimant’s employment?

• Was the Claimant dismissed, or did he resign?

• Was there direct discrimination against the Claimant on the grounds of his
disability?

• Was the Claimant harassed on the grounds of his disability?

• Did the Respondent fail to make reasonable adjustments for the Claimant’s disability during his employment?

II. Liability

The Claimant’s Credibility

3. It is contended that, absent complicated and complex issues of statutory
interpretation, at its heart this case concerns the simple matter of the
Claimant’s credibility. It is contended that the Claimant’s case is quite
simply not capable of belief: viz that he was discriminated against to the
point wherein he had no option but to seek Ill Health Retirement. The

Claimant’s evidence that he was unable to access any assistance in respect of his disability from his employer, short of retirement, through his ignorance of internal disability policies and officers, and the NICS policy on reasonable adjustments is blatantly incredible.

Ignorance of Disability Policies and Assistance

4. In response to questioning by Mr Miller, the Claimant asserted that

“through my work I wouldn’t have occasion to look at [the civil service handbook on disability] and through my work area or on a personal basis... I didn’t look [at it].”

The implausibility of this contention is emphasized by the documents contained in Bundle R2 (namely the minutes of the Personnel Governor’s meeting of 9 December 2008, paragraph 10; and the minutes of the Personnel Governor’s meeting of 17 November 2009, paragraph 2; the email of 2 November 2009; and the email of 6 April 2007) which demonstrate that the Claimant, in addition to his duty as a manger to keep himself informed of such developments in respect of disability assistance for his staff; was actively involved in advising on issues which touched on these policies in the course of his duties.

5. The Claimant’s assertion that he could not speak to a Disability Liaison Officer or other colleagues for fear of the ‘consequences being worse’ is somewhat inconsistent with his asserted state of ignorance, and is simply not plausible. The Claimant had a wealth of resources: from his trades union to internal routes available to him to actively seek reasonable adjustments.

The Allegation that Ms Beattie failed to Complete Annual Reports

6. Secondly in the Claimant’s oral evidence he expanded his case to claim that a further act of Ms Beattie’s (which constituted discrimination on the basis of his disability) was her failure to complete his annual performance reports for the years 2007-2008; 2008-2009; and 2009-2010. The Claimant’s evidence on this was, that as he had not received the annual reports, they had not been done. It is contended that this is a very serious allegation that the Claimant was prepared to opportunistically make against Ms Beattie. The fact that hard copies of the annual reports could not be located is not of itself proof that they were not done: indeed, Ms Beattie’s evidence revealed how the Claimant himself had confirmed at a Personnel Governor’s Meeting of September 2009 [see Bundle R2] that all performance reports were completed (presumably including his own). The Claimant was Head of Performance Management at the relevant time, and

so was responsible for ensuring that all annual reports were completed. To suggest that his own reports would not have been carried out, in an act of disability discrimination, or for any other reason, in those circumstances — is ludicrous. Further, Ms Beattie’s evidence that the annual reports had to have been completed or the pay system would not have permitted the payment of the Claimant’s wages in line with a record of satisfactory performance remains unchallenged.

7. Crucially, the assertion by the Claimant that hi annual performance reports for the years 2007-2010 had not been completed is contradicted by his own assertion at page 19 of the Black Bundle in his ITI wherein he stated
‘subsequently at my end of year performance review last year Ms Beattie ....‘. This assertion clearly accepts that there was a performance review in the year 2009-2009, and one would expect an annual report thereafter Additionally, one would have expected that someone in the Claimant’s position, if he had not received an annual report would have queried this with his manager: a fact which clearly did not occur. Moreover, one would also expect that a manager of the Claimant’s rank would have retained for his own records, his annual reports, rather than his assertion that he was reliant on the production of same from the Respondent.

8. The Claimant’s demonstrable lack of candour in these two key issues is fundamental his case. It is therefore submitted that the Tribunal should prefer, the evidence of the Respondent’s witnesses and dismiss this application.

Time Line of Relevant Events

9. To fully comprehend the reality of the factual matrix it is also instructive to consider the relevant time line. Ms Beattie took over management of the Claimant in 2005; and he underwent a serious operation September 2007. Their working relationship was apparently fine until Ms Beattie confronted the Claimant about the inappropriate comments he had made (inter cilia) to Ms Teresa Hewitt in June 2009, and the Claimant’s working relationship with Ms Beattie deteriorated thereafter.

10. The Claimant then had a meeting with Ms Beattie in February 2010, when she advised him that she had found that his performance had deteriorated, and that there had been issues since October 2009. Subsequent to this meeting the Claimant went on sick leave from 22 February 2010, citing a combination of stress and mobility problems

11. It is significant to note that during that period of sick leave the Claimant’s GP did not indicate that any workplace adjustments would assist the

Claimant to return to work. The Claimant was then seen by the Respondent’s OHS on 27 April 2010, and although reasonable adjustments were discussed, this was in the context wherein the Claimant asserted that he simply wanted Ill Health Retirement (IHR). It is submitted that his request for IHR at that stage is an unequivocal demonstration that the Claimant did not genuinely intend to enter into any constructive consideration of reasonable adjustments which may have assisted him in returning to the workplace.

12. On 10 May 2010, Dr Mills examined the Claimant and found that his asserted stress at work was ‘secondary’ to the issues arising from his spinal bifida. This finding is consonant with the view that it was the Claimant’s physical limitations, rather than any alleged discriminatory treatment that prevented him from being in the workplace.

13. On 27 May 2010, the Respondent held a second Formal Review Meeting in respect of his sickness absence, which the Claimant did not attend, but which was attended by his Union Representative on his behalf. At that meeting the Claimant’s representative indicated that Mr Moore simply wanted Ill Health Retirement, and emphasized that this was as a consequence of his physical disability rather than being connected with his stress.

14. On 7 July 2010 Dr Mills (having received the report from the Claimant’s consultant, Dr McCann) found that it was unlikely that further treatment would permit the Claimant to return to work, and recommended that the Claimant be granted Ill Health Retirement The Claimant’s last day of employment was 31 August 2010; however the Claimant only submitted his grievance on 6 August 2010. It is highly significant that the many complaints contained within the grievance had not been previously articulated to the Respondent Further this grievance was issued at a stage, when it was clear that the Respondent was not to be afforded an opportunity of addressing the complaints in any substantive way, given that the Claimant had effectively no way of returning to work because of the Ill Health Retirement recommendation of 7 July 2010.

15. The Claimant issued the instant proceedings on 9 August 2010, without waiting the requisite statutory 28 days after issuing his grievance. The originating application was accepted by the Tribunal, no doubt on the basis that the disability discrimination case was accompanied by the claim of constructive dismissal.

III. The Evidence

The Stress of the Claimant’s Post

16. The Respondent contends that the Claimant has not established that the particular demands of his post (as Head of Performance and Conduct) were so much more stressful than other comparable B1 posts. Indeed, the Claimant’s argument that the previous incumbent in the post resigned because of stress was not supported by any evidence adduced at the heating.

Lightening the Claimant’s Workload

17. The Claimant categorically was unable to point to any one occasion when he formally made Respondent aware of the need to reduce his workload, or when he complained about what he contends was his excessive home working. This is in contrast to the evidence that his peers, the others in the B1 grade, asked for help and had work re-prioritized. Additionally Mr McGuckin has corroborated Ms Beattie’s evidence that efforts were made on an ongoing basis to ensure that the Claimant’s workload was managed appropriately. Examples of assistance included making provision for the employment of more staff to provide additional support to the Claimant. The Claimant’s contention that providing additional staff only increased his work demonstrates either his intransigent attitude to any assistance, or a complete failure to comprehend his duties as a manager to delegate and quality assure work, rather than carrying it out personally.

18. Additionally the fact that the transfer of duties in respect of the bullying and harassment cases to Ms Hewitt’s department made good operational sense did not prevent it also being a lightening of the Claimant’s workload, for the reason of making a reasonable adjustment for him. Ms Beattie’s evidence was that the transfer of duties was not inevitable, and in any event it was brought forward in time to assist the Claimant

19. The Claimant has spectacularly failed to establish the particular aspect of his disability which prevented him from starting work before l0am, and/or why he felt the need to work on late in the evenings. It is accepted that it took the Claimant longer to get himself ready for work in the mornings, but other than that the Claimant has provided no evidence how the Respondent failed in this regard to make reasonable adjustments for his disability. The Claimant failed to advise the Respondent of his exercise regime, or any reason why the exercise regime had to be carried out before, rather than after work.

The Claimant’s Fall

20. The Respondent accepts that the Claimant had seriously mobility issues. The significance of this however, seems not to be that the Respondent failed to make reasonable adjustments to assist him in this regard. Rather the most significant aspect is that (on an unspecified date) the Claimant alleges that, on entering a meeting, he advised Ms Beattie of having had a ‘heavy fall’ — a fact which she ignored. The Claimant has failed to adduce any evidence whatsoever from any other attendee at that meeting to corroborate his complaint The Claimant made no contemporaneous complaint that Ms Beattie had ignored his advising her of his fall. It is contended that this assertion is quite incredible, it might be one thing for one person to have deliberately ignored the Claimant, however, to suggest that all the other people in attendance would have permitted this to happen beggars belief. The Respondent contends that this head of claim has all the hallmarks of a deliberate distortion of the truth to try to enhance a baseless complaint. Additionally the Claimant has been unable to refer to any record of his falls in the accident book.

Ms Beattie’s Alleged Failure to Carry out Mid Year Review

21. Ms Beattie’s evidence as to the purpose of the monthly one-to-one meetings that she had with all of the B1 grades, to include the Claimant, indicates that the substance of the requirements of the mid-year review were certainly met during those meetings, albeit that the meetings were recorded under a different title. It is contended that this allegation must be considered in a similar light, as the inherent implausibility of the Claimant’s evidence in relation to the unfounded allegations that he did not have end of year performance reports. The evidence of Mr Wilson, Ms Hewitt and Mr Millard was that Ms Beattie performed their mid-year reviews, under the auspices of the one-to-one meetings, is highly persuasive that the Claimant also benefitted from a similar approach. Mr Wilson’s evidence was unequivocal:
“it was very difficult to divide the work [1 had to do] and my performance” and so demonstrating that Ms Beattie’s one-to-one meetings met the substance required by the Performance Management procedures. Ms Hewitt opined that the monthly meetings actually exceeded the requirements of the Performance Management System.

22. The disadvantage that the Claimant alleges was occasioned to him by the failure to carry out the mid year review, is that, had he had such a review, he believes that Ms Beattie would have invoked the inefficiency procedures against him. This is categorically denied by Ms Beattie, who although she believed his work had deteriorated, she did not find it unsatisfactory, nor was it at the level which would have required the invocation of the

inefficiency procedures, as at February 2010, much less at October 2009. It is difficult to accept from a factual perspective that the Claimant’s contention could be correct, that a formal mid- year review would have led to his having the inefficiency procedures applied to him, and that this would have been to his benefit There was no indication that the Claimant was disadvantaged as alleged or at all.

The Home Working Scheme

23. The Claimant has adduced all types of evidence which purports to demonstrate that, to varying degrees, the Northern Ireland Civil Service operated an informal working from home scheme. All of the evidence in this vein is entirely irrelevant to the fact that the Claimant did not at any stage, formally or otherwise, request that he be permitted to work from home as a reasonable adjustment On a few isolated occasions the Claimant requested that he be permitted to finish a piece of work from home, on the basis that it would have been more efficient to be away from the demands of the office. Ms Beattie’s evidence was clear: every time the Claimant made that request, he was permitted to work from home. However, this is not the same as a request for a reasonable adjustment on the grounds of his disability.

24. The Claimant’s evidence in this regard (at its height) was that he indicated that he would be interested in participating in a pilot scheme, should it be introduced to the Prison Service, but that Ms Beattie ‘dampened’ that idea. The Claimant has failed to establish that there was any relevant scheme, much less that he was discriminated against by not being permitted to avail of it.

The Claimant’s Application for Special Leave

25. It is contended that the Tribunal should prefer Ms Beattie’s evidence on this point, that this was the first application of this nature that had come across her desk, and that she was unfamiliar with her responsibilities. It is submitted that Ms Beattie’s concern that if special leave were to be granted, it should be done properly, is not evidence that her actions in this regard were motivated by a desire to discriminate against the Claimant on the grounds of his disability. The Tribunal should recall that this application for special leave was made by the Claimant on 22 April 2008 and he made no complaint either contemporaneously or following the grant of the application (on 23 January 2009). As the application was granted, the Claimant suffered no detriment. The Claimant has re-visited this matter (as with other issues) and attempted, with the benefit of hindsight, to re-mould

the particular circumstances in an attempt to create a false impression that Ms Beattie discriminated against him on the grounds of his disability.

The Flexi Leave Arrangements

26. The Claimant was undoubtedly given much greater latitude in his working arrangements than others who were not disabled. This extended to the hours he worked and the fact that he was permitted to take time off in lieu. This reasonable adjustment is not undermined by either by its informality, or the fact that, from time to time, arrangements were made with other staff (such as Mr Wilson) which permitted derogations from the strict parameters of the flexi-time arrangements. The Claimant has failed to demonstrate that these arrangements amounted to discrimination on the grounds of his disability.

The Claimant’s Behaviour to Women in the Workplace

27. It is dear that in the words of the Claimant’s own witness, Mrs McCarthy, his behaviour ‘crossed the line sometimes’: It is also abundantly clear that the Claimant has not denied that he made the sexist, sexually harassing and derogatory comments to Ms Hewitt. The Claimant was extremely vague in response to the evidence put to him that he had a long history of making inappropriate comments to women. Rather than denying that the comments were made, the Claimant took the view that these sexist and harassing comments were mere ‘banter’. Indeed, the height of the Claimant’s case in regard to the comments he made to Ms Hewitt, is that he could not ‘recall’ what he had said. This is, in all the circumstances, a world away from a denial of having made the harassing comments. The fact that there was not a disciplinary procedure to prove his guilt, as has been suggested by Mr Spratt, is of little relevance. It is contended that when the Claimant was confronted by Ms Beattie by his actions, the Claimant realized the gravity of his actions. Following this, relations between the Claimant and Ms Hewitt and Ms Beattie were strained, not because of discriminatory actions on the grounds of his disability, but because of his own cognizance of his actions.

The Transfer Request

28. Mr Wilson’s evidence that the Claimant had approached him and asked him to keep him informed of possible openings at his grade is not the same as the Claimant requesting a transfer as a reasonable adjustment for his disability. Mr Wilson’s evidence was that his understanding of why the Claimant sought the transfer at that time was ‘because he wasn’t content in the job he was in’. There was no mention of discrimination at the hands of Ms

Beattie, nor was there mention that the transfer was for reasons connected with his disability. Further, Ms Beattie is crystal clear in her evidence that the Claimant’s discussions with her about his desire for a transfer were not for reasons connected with his disability, but rather arising from the difficulty of his relationships, given the incident with Ms Hewitt.

29. It is significant that the Claimant was not placed in the transfer pool for those who needed a transfer for reasons of their disability, as this was not the basis on which he advised Ms Beattie he sougth a transfer.

Mr Johnston’s Dismissal

30. Ms Morrow gave evidence that the Claimant contacted her at some unspecified time following his discussion with Ms Beattie in February 2010 about his deterioration in performance. Ms Morrow confirmed that the Claimant told her that he feared that he might be dismissed for inefficiency in a similar fashion to how he perceived that Mr Johnston was dismissed. The involvement of Mr Johnston in these proceedings was completely ill conceived, given that he accepted that Ms Beattie had no involvement in the decision to dismiss him. If anything the involvement of Mr Johnston and the allegations in respect of Ms Beattie serve to underline the fact that the Claimant has availed of any opportunity to ‘throw mud’ at Ms Beattie, in the hope that some of it will stick. The wholly inappropriate involvement of Mr Johnston’s dismissal in these proceedings is demonstrative of the Claimant’s willingness to exploit any circumstance to prop up his very weak evidential case.

Bladder Issue

31. It is contended that it is clear that Ms Beattie discussed his disability, to include his bladder issues with the Claimant. Evidence for that is that it is common case that they discussed the fact that Ms Beattie’s brother suffered from a similar condition, as far back as 2005. It is contended that this was entirely consonant with Ms Beattie’s evidence that she had a good relationship with the Claimant (up to the point of her discussion with him about his behaviour towards Ms Hewitt in July 2009) and that she had made him aware that she was comfortable discussing issues that might arise from his disability. Furthermore, there is objective evidence that Ms Beattie specifically questioned the Claimant about illness, especially after operations see [p. 136, para 5.1.5] wherein it is clear that they discussed ‘flu like symptoms from bladder infections, and this demonstrated that there was discussion between the Claimant and Ms Beattie.

32. The significant aspect of the Claimant’s bladder issue appears to be that he asserts that Ms Beattie discriminated against him by failing to arrange shorter meetings or scheduled breaks in meetings such as to permit him to access toilet facilities. This complaint must be viewed in the context wherein the Claimant himself does not assert that he specifically requested breaks or shorter meetings for that reason. Ms Beattie’s evidence is unequivocal: the Claimant could have excused himself whenever necessary. It is unreasonable to suggest that Ms Beattie was at fault in not anticipating that this was an issue, in the absence of an explicit notification of the disadvantage asserted by the Claimant.

33. The fact that the Claimant had been absent on three occasions over three years: April 2008;July 2009 and January 2010 with bladder infections does. not amount to constructive notice to the Respondent that the Claimant could not tolerate long meetings.

The Alleged Failings of the OHS

34. The Claimant relies on the fact that the OHS recommended redeployment on 10 May 2010. This is not strictly correct- the OHS enquired as to whether redeployment was possible. Indeed it is submitted that the Respondent had to seek information from the Claimant’s consultant and that this acted as a bar to the Respondent in implementing changes that might, in opinion of the Claimant’s consultant, have not been appropriate. In reality, the question of implementing reasonable adjustments was not appropriate, given that the Claimant had already indicated that there were no suitable adjustments and had asked for IHR [see Bundle I p176]

35. The Claimant’s complaints about the actions taken by the Respondent’s OHS are completely misconceived in the context wherein he had unequivocally stated he wished to pursue IHR. In those circumstances it would not have been acceptable for the 0HS to try to impose reasonable adjustments. Indeed, the OHS did discuss reasonable adjustments, but at that time none were found to be applicable because the Claimant was found unfit for the work and environment of his post.

Harassment

36. The Claimant has alleged that Ms Beattie harassed him on the grounds of his disability. It is contended that this is a completely threadbare allegation, added to the claim in a ‘make weight’ manner. There is nowhere in his witnesses statement nor during the Claimant’s evidence is one specific example given of when the Claimant felt that the criticism was unjustified by Ms Beattie.

The Onus on the Claimant

37. The Claimant’s stance that there was ‘no onus’ on him to make suggestions as to reasonable adjustments, does not equate to his having no obligation whatsoever to engage with the Respondent in respect of (a) the disadvantage he asserted arose from his disability; and (b) the reasonable adjustments that he sought to address that disadvantage. The Claimant merely decided not to take any action at all or make any complaint. The Claimant has offered no explanation as to why Ms Beattie, who had formerly been on very good terms with the Claimant, decided to discriminate against him on the grounds of his disability. The best explanation the Claimant offered was that

“Ms Beattie had to do my work for me, she maybe got fed up with that and didn’t want me there anymore’.

This was not put to Ms Beattie and so she had no opportunity to rebut same.

38. The Claimant’s contention that that as a matter of ‘record’ the Respondent knew that he wanted, as reasonable adjustments for his disability: a ‘transfer for reasons of stress; adjustments for the impact of his medication; to work at home; and a reduced workload’. This assertion is completely without any foundation in fact, much less being a matter of record.

39. It is clear that no formal request had been made by the Claimant to permit him to work at home, in consequence of his disability. In any event, the comparisons he draws with Ms Wilson’s arrangement to work one day a week from Magilligan, and Senior Management doing ad hoc additional work from home, do not assist in establishing that the Respondent failed to grant him this reasonable adjustment on the grounds of his disability.

40. It is clear that Ms Beattie offered the Claimant the opportunity to work reduced hours, although the Claimant would not countenance that, unreasonably asserting that the reduction in hours would not be accompanied by a reduction in duties. Rather the Claimant refers to operational grade prison officers who were permitted to carry out duties of a lesser grade, but receive the same salary. It is not accepted that this was ever actively raised by the Claimant as a consideration for the Respondent by way of reasonable adjustment. Further, the validity of the comparison is also denied.

41. It is also clear from the sworn evidence of Mr McGuckin, corroborated by Ms Beattie, that Ms Beattie made efforts to obtain a transfer for the Claimant. This transfer was not sought on the grounds of a reasonable adjustment for the Claimant’s disability, but because he found working in

his then position untenable as a result of the fact that Ms Beattie had been obliged to speak to him in relation to his actions towards Ms Hewitt.

The B1 Monday Meetings

42. The allegations that the Claimant made that Ms. Beattie discriminated against him on the grounds of his disability by scheduling a fortnightly meeting of the B1s on a Monday morning at 9.3Oam are quite simply not made out. Ms Beattie and Mr Guckin confirmed the operational benefit of having those meetings in sequence with another senior meeting, at that time. Given that the Claimant did not make the Respondent specifically aware that his attendance at these meetings caused difficulties for him, arising from his disability, and he did not articulate what those difficulties were (save for the fact that he would have to advance his morning routine by 30 minutes), it cannot be said that the Respondent failed to make reasonable adjustments for him in that regard. The fact that Mr Wilson did not have the same operational requirement to meet with Ms Hewitt and Mr Moore in a similar meeting when he deputized for Ms Beattie, is not sufficient to demonstrate
that by holding the meetings at all, Ms Beattie discriminated against the Claimant.

The Bonus

43. The allegation the Claimant makes that Ms McGuckin discriminated against him byway of making a remark that the Claimant’s sick absence would have prevented him from receiving a Non-Consolidated Performance Bonus (NCPB) is quite without foundation. This is inherently implausible, given that the Claimant himself was the person responsible for that policy, and could not have failed to know that any such suggestion was factually incorrect

Alterative Office Accommodation

44. Additionally the Respondent’s witnesses, Mr McGuckin, Ms Beattie and Ms Hewitt have all given evidence that the Claimant was offered more convenient accommodation on the ground floor of the building. The best retort that the Claimant has been able to make to this, in explanation for his unreasonable refusal to avail of this offer, is that he ‘needed’ to be close to his staff. This is not borne out by the evidence, and is entirely contradicted by the Claimant’s parallel contention that he should have been permitted to work from home- given that working from home would also have separated him physically (and by a much greater margin) from his staff. Rather, it is

contended that this refusal is demonstrative of the Claimant’s unhelpful approach to offers made by the Respondent to assist him.

Duty to Keep in Touch

45. On a similar factual basis it is denied that the Respondent failed in the employer’s duty to keep in touch with the Claimant during his last period of sick leave from February 2010, and that if it did, that it was on the grounds Of the Claimant’s disability. It is submitted that it was perfectly correct for Ms Beattie to delegate that duty to others, on the basis of the Claimant’s indication that meeting with her would be contrary to his best interests and likely to exacerbate his stress [see Bundle 1, p.435]. The Claimant’s complaint in this regard is misconceived.

The Medical Evidence

46. It is contended that the overarching evidential item, of the most persuasive nature, is the medical report provided by Dr McCann [Bundle l p.374]. Dr McCann sets out the Claimant’s history, and his conclusion at p.375, is that he had suffered a ‘gradual reduction in his overall physical mobility’ and that there was ‘Nothing further that we can offer in a curative sense’. He opined that the Claimant was ‘very easily fatigued... [and it takes all his effort just to get through the day’ and made no mention of reasonable adjustments. Indeed, Dr McCann’s summary and opinion found that the Claimant was ‘unable to continue in his current employment. Even if his pain were to be resolved...’. There is absolutely no mention of the Claimant having stress at work or its impact on his disability. Accordingly, it is very clear that, irrespective of any alleged disability discrimination, he would have had to retire in any event Dr McCann did not expect any improvement- rather that he would expect the Claimant’s health to continue to decline.

47. The Claimant could have appealed against the decision to grant IHR, which was reached on 4th August 2010, [Bundle I p.3931. If it was correct that he believed that he had been forced into retiring because of the disability discrimination (having had the chance to stand back from workplace and review situation) one would have thought that he could have appealed against that decision. However, the fact that the Claimant chose not to appeal against this decision reveals that it was his choice to avail of IHR.

Constructive Dismissal

48. In order to establish that he has been constructively dismissed, it is not enough for the Claimant to prove that he left merely because the Respondent has acted unseasonably. Rather he must prove that the

Respondent’s conduct amounted to a breach of his contract of employment It should also be emphasized that a constructive dismissal is not necessarily unfair and a tribunal that makes a finding of constructive dismissal will err in law if it assumes that the dismissal is unfair without making explicit findings on the reason for the dismissal and whether the employer has acted reasonably in all the circumstances (Stephenson & Co (Oxford) Ltd v Austin
[1990] ICR 609, EAT).

49. In order to establish liability for a constructive dismissal four conditions must be met:

(1) There must be a breach of contract by the employer.

(2) That breach must be sufficiently important to justify the employee resigning, or else it must be the last in a series of incidents which justify his leaving.

(3) He must leave in response to the breach and not for some other, unconnected reason.

(4) He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract

50. The EAT made clear in Courtaulds Northern Spinning Ltd v Sibson [1987] ICR
329 that reasonable behaviour on the part of the employer can point evidentially to an absence of a significant breach of a fundamental term of the contract. It is contended that there is nothing in the actions of the Respondent which would amount to a breach of the Claimant’s contract. Accordingly, the Claimant has failed to establish the first and second limbs of the test .Thirdly, it is submitted that the Claimant did not leave in response to the alleged breach of contract, but for a wholly unconnected reason, being his ill health. For these reasons it is contended that the Claimant has patently failed to establish a case of constructive dismissal.

51. Accordingly one can answer the initial questions thus: there was no dismissal, rather the Claimant elected to avail of IHR, and the contract of employment was thereby terminated by the mutual consent of the parties.

Reasonable Adjustments

52. The Respondent contends that it made a number of reasonable adjustments in an entirely appropriate manner, responding to the Claimant’s needs as they arose. The list of these adjustments is summarized and can be found at the end of Ms Beattie’s statement [p. 235, Bundle 1]. These included: not applying the sick absence procedures; suggesting changes to his working pattern and hours; offering a change of office; removing duties; the

scheduling of meetings; the location of meetings; permitting time off for medical or physiotherapy appointments; a more relaxed approach to his forgetting meetings or appointments; the assuming some of his duties; a more generous interpretation of flexi time provisions; and not asking him to assume additional tasks. The Claimant’s case appears to be that, because there was no formalized agreement that the Respondent’s voluntary actions in making these pragmatic and daily adjustments to address the disadvantages caused by his disability, then they did not qualify as being ‘reasonable adjustments’ for the purposes of the legislation.

53. In addition to these reasonable adjustments made by the Respondent, it was the very clear evidence of Ms Hewitt, as Head of Equality and Diversity that it would have been “very wrong ... to make assumptions as to [the Claimant’s] need?’ by approaching him to interrogate him as to any possible reasonable adjustments that could have been made, in circumstances wherein he had not flagged up any problem that needed consideration.

54. It is quite clear from a policy perspective that there is an onus on the disabled person to make their employer aware of the disadvantages that they perceive and, as a consequence of those disadvantages, the adjustments to address those needs. Once they have declared what problems they have, then and only then, the burden falls to the employer to consider what solutions it could propose. This is the fatal flaw in the Claimant’s case; namely- he did not flag up in a sufficiently coherent manner what his issues. were, such that the Respondent could have been expected to make additional reasonable adjustments. The Claimant has ‘cherry picked’ extracts from the policies, but has failed fundamentally and crucially to understand that the initial duty fell on him, as the disabled person to alert his line manager of the asserted need for additional reasonable adjustments [see Book2, pl02].

55. The Claimant has failed to understand that having a disability is not necessarily synonymous with his being put at a ‘disadvantage’. The Claimant failed to articulate the disadvantage that he said he was under in the workplace and so the procedures for assessing and assisting disabled employees was not commenced in a manner that he appears now to have wanted.

56. The relevant statutory provisions are contained in the Disability Discrimination Act 1995 section 6. Firstly, where a provision, criterion or practice of the Respondent’s puts the Claimant, as a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, the Respondent is required to take such steps as it is reasonable to have to take to avoid the disadvantage. Secondly, is the

requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

57 Consideration of whether the duty arises will in all likelihood require a modification of the test set out in Environment Agency v Rowan [2008] IRLR 20, and will require the Tribunal to enquire:

“Whether there is a provision, criterion or practice applied by or on behalf of an employer; or
Whether there was a physical feature of premises occupied by the employer; or Whether there was a need for an auxiliary aid;
The identify of the non-disabled comparators (where appropriate); and
The nature and extent of the substantial disadvantage in relation to a relevant matter suffered by the employee.”

58. This duty to make reasonable adjustments is expressed in wide terms under s 4A. It applies where the disabled person is placed at a substantial disadvantage, compared to persons who are not disabled, by a ‘provision, criterion or practice applied by or on behalf of an employer’ (s 4A(1)(a)).

59. In the case of Royal Bank of Scotland v Ashton UKEAT 0306/10, Langstaff J held that

“an Employment Tribunal—in order to uphold a claim that there has been a breach of the duty to make reasonable adjustments and, thus, discrimination— must be satisfied that there is a provision, criterion or practice which has placed the disabled person concerned not simply at some disadvantage viewed generally, but at a disadvantage which is substantial and which is not to be viewed generally but to be viewed in comparison with persons who are not disabled.”

On the facts of the case, where an employer’s sickness policy was (eventually) applied to the employee, leading to her receiving a warning and the withholding of sick pay, the tribunal was found to have erred in concluding that there had been a failure to make a reasonable adjustment. The EAT warned that the examination must not be of the way in which an employer has treated an employee generally or their thought processes, but rather, the focus should be an objective analysis of the practical result of the measures which could be taken.

60. Further, the DDA 1995 s 18BQ) gives guidance as to the kind of considerations which will be relevant in deciding whether it is reasonable for a person to have to take a particular step in order to comply with the duty to make reasonable adjustments. Examples are also given in s 18B(2) of particular steps which may have to be taken:

“18B Reasonable adjustments: supplementary
(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a day to make reasonable adjustments, regard shall be had, in particular, to—

(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b) the extent to which it is practicable for him to take the step;

(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;

(d)the extent of his financial and other resources;

(e) the availability to him of financial or other assistance with respect to taking the step;

(f) the nature of his activities and the size of his undertaking

(2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comp/y with a duty to make reasonable adjustments—
allocating some of the disabled person’s duties to another person; assigning him to a different place of work or training.”

61. It must be borne in mind that s 18B(2) merely gives examples of adjustments and is not exhaustive.

The Extent to which the Adjustment would Prevent the Disadvantage

62. The extent to which making the adjustment would prevent the disadvantage created, is subject to an objective test (per Royal Bank of Scotland v Ashton UKEAT 0306/10). There are certain parallels with the instant case and that of HM Prison Service v Johnson [200l] IRLR 951, EAT where the stage had been reached that the consequences of the disability were irretrievable and the duty to make adjustments was therefore said to have fallen away. In a case in which there is a long period of steadily worsening health, this may require a tribunal to take a view at precisely what point the situation becomes irretrievable. It is submitted that the Tribunal heard the unequivocal evidence of Ms Beattie, that not only did the Claimant not request the facility of working from home as a reasonable adjustment for his disability; but there was absolutely no evidence from him, either then, or at the hearing, as to how working from home would have prevented the asserted disadvantage. The Claimant referred his need to do exercises and his having access to sanitary facilities, but both of those were issues which apply, irrespective of the location of his work. There was no suggestion made by him that the travelling to work made a difference to him. Indeed it

was clear that the Claimant travelled frequently to his house in England and to visit friends and relations abroad, which is not in keeping with the concept that travelling from Bangor to Belfast caused a disadvantage which needed to be alleviated by way of a reasonable adjustment.

63. The EAT in Project Management Institute v Latif [2007] IRLR 579, EAT observed that while the nature of the adjustment that is lacking need not itself come from the claimant, it does seem that there must at least be before the tribunal facts from which, absent any innocent explanation, it could be inferred that a particular adjustment could have been made. Otherwise, the respondent would be placed in the ‘impossible position’ of having to prove the negative proposition that there was no reasonable adjustment that could have been made. It is submitted that the Claimant has failed to establish what disadvantage the asserted reasonable adjustment of a transfer or working from home would have addressed.

64. Agreeing with Latif in the context of an adjustment of an alternative post being sought, Underhill J in HM Prison Service v Johnson [2007] IRLR 951 went on:

“We are not to be taken as saying that it was incumbent on either the claimant, in advancing the case, or the tribunal, in deciding it, to identify a precise alternative posting with every detail worked out. The degree of specificity required would depend on the nature of the evidence and the issues. In some circumstances a finding that there were plenty of other jobs’ which a claimant could have been moved to might be sufficient (at least for liability purposes). But it is necessary that that finding be made.”

The Claimant has failed to establish that there were other suitable posts to which he could have transferred.

65. There are certain similarities between this instant case and that of Wilson v Secretary of State for Work and Pensions and others [20101 All ER (D) 96 (Apr), wherein the EAT considered that the employee’s proposal of an adjustment of home working was not ‘reasonable’ as there were no home working vacancies which existed, or could be created, and therefore no evidence that it was a feasible option.

66. The Respondent has provided unassailable evidence of the adjustments that were made for the Claimant These included the fact that he was allowed him to build up flexi time outside of normal core flexi hours; that he was permitted to use the flexi hours to take days off, which was to the detriment of the Respondent’s operational requirements as he was then not available to his staff on those days. It is clear that this accommodation wasn’t extended to other staff who were not disabled.

Disability Discrimination and the Duty to Consult

67 It is claimed that the Claimant has fallen into error in his reliance on the contention that the Respondent did not actively initiate a consultation with him in relation to his disability and suitable reasonable adjustments Ms Beattie’s evidence has been clear she made continuing and ongoing adjustments as issues were brought to her by the Claimant Further, Ms Beattie has contended that it would have been entirely inappropriate for her (or the Pension Service) to have insisted on forcing possible adjustments on the Claimant — in the context wherein he was attending work and had not alerted his employer to specific needs as a consequence of his disability.

68 In relation to the Respondent’s duty to initiate the consultation required for reasonable adjustments it is apposite to consider Harvey on Employment Law at Division L para [391], when the learned authors have suggested that the high water mark of the duty to consult was set out in the case of Mid- Staffordshire General Hospital NHS Trust v Cambridge [2003) IRLR 566 In that case the EAT held that a

“proper assessment of what is required to eliminate a disabled person’s disadvantage is a necessary part of the duty [to make a reasonable adjustment], since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done.”

The EAT therefore found that an omission to carry out an assessment had amounted to a failure to comply with the duty to make a reasonable adjustment.

69. Harvey has opined that the Mid-Staffordshire General Hospital J).NHS Trust v Cambridge decision came close to equating the duty to make reasonable adjustments to a duty on the employer to behave reasonably by requiring consultation; a view which finds support in the Code of Practice:
Employment and Occupation, which recommends consultation with disabled employees. However, an insuperable hurdle for the Claimant is the fact that this approach has long since been departed from by subsequent divisions of the EAT and can no longer be considered to be good law.

70. Indeed, in the case of Tarbuck v Sainsbury Supermarkets Ltd [2006) IRLR 664, EAT, it was found that the duty to consult is not of itself imposed by the duty to make reasonable adjustments. In that judgment Elias J specifically criticised the ratio of Mid-Staffordshire and held (at para 71)
“[t]he only question is, objectively, whether the employer has complied with his obligations or not’.

Rather it was held that the employer’s duty involved the taking of substantive steps, rather than consulting about what steps might be taken.

71. The EAT followed the Tar/nick approach in the case of Scottish & Southern Energy plc v Mackqy (2007) UKEATS/75/06, wherein it was confirmed that the failure to consult with a disabled employee is not of itself constitutive of a failure to make reasonable adjustments. Nor was it found that other procedural failures by the employer (such as a failure fully to investigate the possibility of the employee moving to another alternative job) gave a basis for a finding of failure to make reasonable adjustment The EAT in that case held that such failures may raise the question whether there was disability- related discrimination in breach of s 3A(1) of DDA 1995, but that is not the same as showing breach of s 4A. By application to this case the Respondent contends that the allegations made by the Claimant that the Respondent should have initiated an inquiry into possible reasonable adjustments (absent any particular complaint by the Claimant), such as home working or a transfer on the grounds of his disability are seen to be insufficient to establish a breach of the duty to make reasonable adjustments.

72. Furthermore, it is significant that in the case of HM Prison Service v Johnson [2007] IRLR 951, EAT, Underhill J stated that, although the EAT was free to choose between the contradictory decisions of Mid-Staffordshire and Tarbuck, the EAT was satisfied that Tarbuck was the correct statement of the law.

73. Accordingly it is submitted that the Claimant’s argument that there is a freestanding ‘reasonable adjustment’ to carry out a consultation is wholly unsustainable and his claim cannot succeed on that point. The Tribunal must consider what the ‘duty to consult’ in any event entails. If it is a duty to participate in consultation with the employee, then that is completely different to the Claimant’s contention that the duty in practice corresponds to an employer pro-actively seeking out disabled employees and interrogating them as to whether there are reasonable adjustments to be made. It is the Respondent’s contention that the duty to consult is not either as invasive or as presumptuous as that: rather it is a reactive duty, triggered once the employee indicates that there are particular difficulties. Indeed, this is entirely consonant with the correct reading of the Code of Conduct at paragraph 12 [p34, Bundle 2] which indicates the procedure to be followed after the Claimant has initiated the process of seeking reasonable adjustments. The Claimant’s reading of paragraph 13 of the Respondent’s Disability Reasonable Adjustments Policy [p.lO2, Bundle 2] in isolation from paragraph 12 is wholly unreasonable. It is clear at paragraph 12 that the initial onus rests on the disabled employee ‘who considers that they require reasonable adjustments under the Disability Discrimination Act should consult

with their Line Manage? and it is only after this trigger is set that the Respondent will ask the individual to complete a Disability Evaluation Form.

74. Additionally, Ms Beattie gave unchallenged evidence that the Claimant failed to avail of specific opportunities to draw his needs to the Respondent’s notice, such as his failure to complete the Disability Survey.

Quantum

75. The Respondent has agreed in principle with the Schedule of Loss provided by the Claimant. For the avoidance of doubt, if liability is established against the Respondent, it is contended that the Claimant has not adduced any evidence as to his injury to feelings, and so any award in that regard must be minimal. Additionally the Claimant’s claim for uplift for failure to adhere to the statutory grievance procedure has not been addressed in evidence and so also must fail for lack of proof.

76. The Claimant’s claim that he would have continued to work on for a further
16 years, is without doubt, entirely without foundation in light of the medical opinion expressed by his consultant This opinion remains unchallenged and is therefore an authoritive statement of the Claimant’s physical capabilities at that stage.

77. Nonetheless, one must still consider the potential of the Claimant’s complaint of discrimination, in addition to his complaint of unfair dismissal. If a dismissal is for a reason that amounts to unlawful discrimination then (absent special circumstances) it will also be unfair. The measure of compensation recoverable under the discrimination complaint will be all the loss that flows from the act of dismissal itself. That loss will not be restricted by reference to any financial limitation on the compensatory award in unfair dismissal, or by reference to any deduction made to that award under the ‘just and equitable’ heading.

78. The potential loss could be attributed to disability discrimination in the context of the actual work, and/or the dismissal. The Claimant may only recover in respect of the loss flowing from the subsequent dismissal, on the basis that ‘but for’ the discrimination he would not have lost his job. However, since the consequences of the dismissal are properly limited for a fair reason (the medical opinion he provided in support of his application for Ill Health Retirement) which serves to break the series of consequences for which the Respondent is to be held legally responsible.

79. In the case of Chagger v Abbey National and Hopkins [2009] EWCA Civ 1202, the Court of Appeal (upholding the decision of the EAT, reported at [20091 IRLR 86, on this point) confirmed that it was necessary to ask what would have occurred had there been no unlawful discrimination. If there was a chance that the dismissal would have occurred in any event (on medical grounds) even if there had been no discrimination, then in the normal way that must be factored into the calculation of loss.

80. Tribunals faced with an unfair dismissal that is also an act of unlawful discrimination should award compensation for loss on the principles applying to discrimination cases (assuming that liability for the discrimination has been established), ignoring the upper limits fixed for a compensatory award: per D’Souza v London Borougb of Lasmbeth [1997] IRLR 677.

81. HHJ McMullen QC in the case of Da’Bell v NSPCC [2010j IRLR 19 revisited the Vento guidelines and indicated that the levels needed to be increased to reflect inflation. The lower band would go up to £6,000; the middle to £18,000; and the upper band to £30,000. In deciding whether it is faced with a ‘lower’ or ‘higher’ category of discrimination, the tribunal should consider whether the discrimination formed part of a campaign of harassment over a long period, and also what actual loss was attributable to the discrimination suffered. It is contended that there was no discrimination, much less a long campaign of same, and that the Claimant’s retirement on the grounds of his ill health would have been inevitability in any event, even if there had not been any discrimination.

82. The Claimant has requested aggravated damages, but no evidence has been adduced in this regard. Neither has any malice or other bad intention on the part of the Respondent been proven so as to provide a reason for making an award of aggravated damages. In these circumstances it is contended that that application is misconceived.

Examples of Damages in Disability Discrimination

83. Harvey on Industrial Relations and Employment Law at Div L, paragraphs [1054] and post has considered the instances when damages should be awarded, on the basis of being in the Vento ‘Upper Band’ as claimed by the Claimant. It is contented that a brief consideration of those cases demonstrates, that if liability is established, the Claimant’s case does not fall into the Upper Band. In the case of Combarel v Boots the Opticians Ltd (Exeter) (Case No 1700397/2005) (11 October 2006, unreported), damages of £16,000 were awarded to a store manager who suffered work related stress following issues when the employer was found to have completely failed to

appreciate its responsibilities to an employee developing mental health problems caused by work. It was found that there was an abject, complete and catastrophic failure to comply with the duty to make reasonable adjustments for over four years.

84. Harvey also refers to the case of Sheppard v Brighton & Hove City Council (Brighton) (Case No 31041 50/04) (21 February 2007, unreported) when the Claimant was awarded f20,000, on the grounds that her employer was found to have failed to comply with its duty to make reasonable adjustments in refusing to return her to her original role as a bailiff (when the medical evidence was that she could) and in not having a more flexible, sympathetic and positive approach to the different roles including longer trial periods, extra support, proper training and a commitment to find work. Additionally the employer dismissed Ms Sheppard for a reason relating to her disability when it did so following the unsuccessful trial roles. The tribunal took into account the nature of the claimant’s disability, her vulnerable state over a lengthy period and the failure to make reasonable adjustments from the end of 2002 until her dismissal in September 2004. The claimant found her treatment humiliating and the impact on her feelings, home life and finances was unusually great. However, the respondent was not acting in bad faith and not trying deliberately to terminate her employment.

85. It is also contended that the Tribunal could consider the level of damages awarded in the case of Desousa v Barrow (Southampton) (Case No 3103029/08) (1 April 2009, unreported). In that case the claimant was awarded £20,000. Mr Desousa had been an MOT Assistant in a garage, and he had a mental impairment affecting his literacy, numeracy and ability to process information in his memory. The respondent was advised on a list of adjustments that were reasonable to make but failed to make them and the claimant saw two employees laughing at the list. The claimant was called a ‘cabbage’ and an ‘idiot’, he was ostracised from conversation and jobs were removed from him. On one occasion his manager told him that ‘one of these days I am going to smash your face in’. Complaints about this behaviour were ignored. Disability awareness training was arranged but no- one from the respondent attended. There was no system of supervision, guidance or monitoring in place and no risk assessment The respondent failed to appreciate the effect on the claimant over a prolonged period or that the needs of disabled people are different. This took place over two years and led to the claimant’s resignation. The claimant felt at different times horrible, anxious, really unhappy, tearful, like a piece of rubbish, exhausted, very frightened, invisible, fearful of panic attacks and as if the respondent had given up on him. This was a serious top band case. It is contended that the disability in the Desousa case far outstrips any allegations made by the Claimant in this case.

86. It is also submitted that the Tribunal should consider the case of Abbey National plc v Formoso [1999] IRER 222, EAT, wherein HH judge Peter Clark made the point that the approach for sex discrimination and unfair dismissal was essentially the same;- namely what were the chances that the Claimant would have kept his job, absent the alleged disability discrimination? It is this figure that has to be used in calculating the amount of any award made under this heading.

87. Indeed, the Tribunal must also consider the fact that if it accepts the Claimant’s contention that he could have continued working in this senior role for the further 16 years, then it must also consider the fact that by his own admission, he had done nothing in mitigation of his los. In the intervening year, the Claimant has taken no steps whatsoever to seek alternative employment.

88. Further, consideration must also be paid to the findings of the EAT in the case of Abbey National and Hopkins v Chagger [20091 IRLR 86, EAT, where it was held to be permissible for tribunals to take account of the size of the overall award, and the extent to which it relates to the procedural default, when deciding the level of any uplift under the statutory dismissal and disciplinary procedures. Indeed, when considering the issue of whether the Claimant could have continued to work on for the further 16 years that he claims, the tribunal must be cautious to avoid basing any award on an unrealistic view of the future, as it is likely to be seen as perverse (per Ministry of Defence v Nathan (1996) Times, 13 February). In the Ministry of Defence v Nathan case, an award based on an assumption that employment was 100% likely to continue in excess of 20 years was overturned on appeal.

Conclusion

89. The Respondent has denied all the Claimant’s allegations. The Respondent’s case is that the Claimant had been treated fairly, that the Claimant had decided to retire voluntarily on the grounds of ill health and to take his pension with effect from 31 August 2011, and that the Claimant had been placed under no pressure by the Respondent to make that decision. It is significant that the Claimant did not say during the process of applying for Ill Health Retirement that he was retiring under protest or that he had any complaint or grievance against Ms Beattie, in particular, or against the Respondent in general.

90. It is submitted for all of the reasons set out above, this is a case which can turn on its facts without any particularly complicated analysis of the legal principles. The combination of the disingenuous manner of the Claimant’s

oral evidence and the objective factual matrix is such as to entitle the Tribunal to conclude that the Claimant has failed to make out his claim of constructive dismissal or disability discrimination.

91. In conclusion it can be confidently stated that the Claimant’s employment was. terminated by mutual agreement between the parties. The Claimant was not dismissed, constructively or otherwise, as he chose to avail of the benefits that Ill Health Retirement offered. The Claimant has failed to adduce evidence of sufficient weight, from which the Tribunal could conclude that there was direct discrimination against him on the grounds of his disability. It is clear beyond peradventure that there is no evidence whatsoever that Claimant was harassed on the grounds of his disability. Equally the Tribunal will be impelled to the conclusion that. the reasonable adjustments, made by the Respondent for the Claimant’s disability during his employment, were sufficient, based on the circumstances, as communicated by the Claimant at all material times.

92. It is therefore contended that the appropriate order for the Tribunal to make is an order for dismiss, with costs against the Claimant.

Neasa Murnaghan

Bar Library
30^th June 2011

THE INDUSTRIAL AND EMPLOYMENT TRIBUNALS

DAVID MOORE

-V-

AVIS BEATTIE

NORTHERN IRELAND PRISON SERVICE

Claimant’s response to the Respondent’s submissions

The Claimant’s Credibility

1. It was not the claimant’s ignorance of internal policies which meant that the claimant was unable to access assistance but rather the respondent’s abject failure to apply its own policies and procedures to a member of staff who was disabled and who Ms Beattie acknowledged in her evidence was at a substantial disadvantage because of that disability. Ms Beattie also acknowledged that as Head of Personnel and lead policy holder she had a particular responsibility for ensuring that the policies were applied given that it was part of her role to ensure that managers across the service applied them.

2. In particular it is indefensible that having put in place the Reasonable Adjustments Policy, designed to ensure that NIPS met its responsibilities under the DDA, the respondents then blatantly and deliberately failed to apply its provisions to the claimant. Furthermore, the respondents failed extensively to comply with the Equality Commission’s Code of Practice on Disability and in so doing breached the requirements placed on them by the DDA.

Ignorance of Disability Policies and Assistance

3. The claimant told the absolute truth in response to Mr Millar’s question. The respondent’s acknowledge that these policies no more than touched on Mr Moore’s areas of responsibility. It is clear from the claimant’s case that he was already having to work late and at home to keep on top of his own work. This was a struggle in itself leaving aside the impact of his medication and trying to cope with a very challenging post in the face of relentless criticism whilst dealing with a major disability.

4. Consequently the claimant limited himself to the things he needed to know to do his own job rather than involve himself in other areas which had a peripheral impact on his job. In all the harassment cases which the claimant dealt with over the last 13 years there has never been one about disability that he can recall. Mr Millard confirmed that it was his Branch which administered the Reasonable Adjustments Policy and the claimant cannot recall any occasion on which he had to consider it with respect to is work. It is one thing to be copied into emails where the policy is referred to but it is quite another to be aware of its provisions. The claimant has absolutely no memory of the emails produced by the respondents.

5. Ideally it would be the case that one would expect a manager in the claimant’s position to be aware of the bigger picture but unfortunately the claimant was not always able to do that because of the circumstances detailed above. However Ms Beattie was clearly aware of the Reasonable Adjustments Policy it as it is her policy, and Mr McGuckin, Mrs Hewitt and Mrs Stewart would also have been aware of it, and the claimant’s ignorance of the policy does not detract from NIPS’s failure to apply its provisions, namely a proper disability assessment, referral to OHS and proper consideration of reasonable adjustments.

6. Consequently the claimant asserts that it is not his credibility which is at issue but rather that of the respondents:

i. Ms Beattie said that she conducted her own informal version of the disability assessment required by para 13 of the Reasonable Adjustments Policy but there is no record of such an important issue. The Tribunal is expected to believe that it took the form of informal discussions with the claimant at one to one meetings yet these weren’t recorded. It’s further expected to believe that such an important assessment could be conducted without full and proper consultation with him, professional

medical input from OHS, or input from Staff Welfare or the Disability Liaison Officer.

ii. Ms Beattie says that she didn’t apply the Managing Underperformance guidelines and the Informal Inefficiency procedures which advise managers what to do if there is a drop in performance. This is despite the widespread criticisms of his performance set out in her IT response and witness statement, her acknowledgement at the first formal review that Mr Moore’s performance had deteriorated and her indication in February 2010 that the claimant might receive an adverse report. Ms Beattie put these criticisms down to the claimant’s promotion in 2006 which is clearly not credible in light of her own glowing comments and Mr McGuckin’s in the claimant’s annual reports for 2005/6 2006/7 and his bonus recommendation in 2007.

iii. Ms Beattie claims that her one to one meetings in effect complied with the mandatory interim review. The interim review must be recorded but because Ms Beattie did not record the one to ones there is no evidence that she reviewed the claimant’s progress against his objectives and reduced them to reflect the impact of his medication.

iv. Ms Beattie said that she expected less of the claimant than her other Bis but this was contradicted by Mr. Wilson who said that Mr. Moore’s was the most challenging and heavily loaded of the three B1 posts when he was acting up to Head of Personnel.

v. Miss Murnaghan initially tried to diminish the claimant’s request to work from home by suggesting that the bi meeting which discussed the issue took place in 2008 thereby linking it to remote home working circular around the same time. She was then forced to retract this when it was realised that Mrs. Hewitt’s statement said that her conversation with the claimant on this issue also discussed offering him Mrs. Stewart’s office on the ground floor and Mrs. Stewart didn’t start Nips until 2009. Ms Beattie’s evidence then backtracked on the ridiculous suggestion that the claimant expressed an interest in remote home working which would have been of no benefit to him whatsoever.

vi. In his statement Mr. McGuckin spent a considerable amount of time and effort trying to destroy the claimant’s credibility by denying that he said that the claimant was not entitled to be considered for a bonus recommendation because of his disability related sick leave. He was forced to retract this when Mr. Wilson confirmed that he had indeed said this.

vii. There is no written record of any of the reasonable adjustments which Ms Beattie says she made. Neither are they referred to at all in the record of the first formal review with Attendance Management Branch (AMB) or in the OHS referral form which specifically asks for details of adjustments which have already been made. Clearly this would have been information

which would have been important for both Attendance Management Branch and OHS to be aware of in assessing Mr Moore’s absence.

viii. Many of the reasonable adjustments which Ms Beattie said she made are clearly retrospective inventions designed to convince the Tribunal that action had been taken when none had. Ms Beattie claimed, for example, that she had delayed the start of B1 meetings when they are still held at the same time more than a year after Mr Moore left and that she arranged the timing and location of Personnel Governors meetings as a reasonable adjustment to Mr Moore which are still held at the same times and in the same locations. She then tried to explain this by saying that the participant agreed to this but yet again there is no record of this either such as the minutes of the meetings for example.

The Allegation that Ms Beattie failed to Complete Annual Reports

7. The claimant contends that it is irrefutably the case that Ms Beattie did not complete the annual reports for the reasons stated at paragraph 15 of his closing submission. The claimant fully admits that he reported to Personnel Governors that annual reports for HQ staff had all been completed when he knew that they had not and indeed that he instructed his own staff to falsely record this in making returns of completed annual reports to senior management. He did so because Ms Beattie’s expressed the view that there was no point in being in control of the monitoring process and not using it to your advantage. To have done otherwise would have resulted in Ms Beattie being criticised by senior management leaving the claimant to incur her wrath.

8. The claimant would also have been fearful of appearing to criticise Ms Beattie by confronting her about her failure to complete his own annual reports. The claimant, in common with most colleagues, did keep copies of his annual reports and the fact that he doesn’t have a copy of his 2007/8 & 2008/9 reports is further proof that they were not done. The claimant refutes absolutely that he has been less than candid about this issue — the simple fact of the matter is that the reports were not completed otherwise they would have been on file along with all the claimant’s reports covering his 28 years’ service and either the claimant or Ms Beattie would have retained either a hard or electronic copy.

Time Line of Relevant Events

9. The claimant’s closing submission (paragraph 46) shows that the timeline leading to the his decision to seek ill health retirement relates to the deterioration in his health from 2008, the related deterioration in his performance which rather than resulting in support from his employers by way of reasonable adjustments instead attracted relentless criticism spanning a period of 18 months which culminated in the threat of an adverse report which left the claimant fearful for his job. Then when the claimant went off sick a matter of days later neither Ms Beattie, nor anyone else for that matter, contacted him to discuss the reasonable adjustments he had requested such

as a transfer to a less challenging post or working from home leaving him with no option but to seek ill health retirement.

10. The Respondents claim that the claimant did not enter into constructive consideration of reasonable adjustments as he went off sick on 22 February April and indicated that he intended to seek ill health retirement in late April 2010. The claimant would contend that the Respondents had given no proper consideration to reasonable adjustments over a period of the previous 2 years. Miss Beattie took no effective action to lighten the claimant’s workload despite fact that she was aware of the substantial disadvantage resulting from the increase in his medication to the maximum dosage in 2008. NIPS made no effort to secure a transfer for the claimant from mid 2008 an the basis that he was not able to cope with the stress of a challenging post and heavy workload alongside relentless criticism and they did absolutely nothing to address his request to work from home following the B1 meeting in mid 2009.

11. Thereafter there was no contact from anyone to address these issues in the 3 months from Mr Moore going off sick until he formally applied for medical retirement at the end of May 2010. In addition Ms Beattie had indicated that Mr Moore might receive an adverse report and given his knowledge of Mr Johnston’s case Mr Moore was extremely fearful that he would be dismissed on grounds of inefficiency because of the disability related deterioration in his performance. It was this fear which led the claimant to delay submitting his internal grievance until he was absolutely sure that his medical retirement was secured and he could not be victimised by his employers. The claimant’s fears were borne out by virtue of the victimisation outlined at section F of his closing statement which sought to humiliate a loyal and committed member of staff with some 28 years unblemished service.

The Stress of the Claimant’s Post

12. The claimant sought only to establish that his post was heavily loaded and challenging. It was Ms Beattie who suggested that she expected less of him than his 81 colleagues and Mrs Hewitt who suggested that her post was more challenging than the claimant’s. This was dearly contradicted by Mr Wilson when he told the Tribunal that the claimant’s post was more challenging and heavily loaded than the others when he acted up to Head of Personnel and indeed Mr McGuckin’s evidence when he pointed to the high profile nature of the claimant’s post.

13. The claimant established that he worked late in the office and that he had told Ms Beattie of the additional work he was doing at home, as confirmed by Mr Wilson’s oral and Mrs Hewitt’s written evidence. Ms Beattie also knew that the impact of the claimant’s medication was impacting on his performance. In any event, the claimant would contend that the his employer’s statutory duty to remove the substantial disadvantage resulting from his medication by taking effective steps to lighten his workload still applies whether or not his post is more challenging than his counterparts. The claimant has never contented as stated at paragraph 16 of the respondents’ closing submission that the

previous incumbent of the post resigned and has no idea why they have made such a suggestion.

Lightening the Claimant’s Workload

14. Paragraph 17 of the respondents submission is clearly contradictory. It says on the one hand that that the claimant never made the respondents aware of the need to reduce his workload but then points to the efforts made to employ more staff to provide him with additional support. To be clear, the additional staff were from other Branches and worked usually from their own offices on an ad hoc basis in assisting Mr Moore’s staff to progress issues.

15. The claimant did not fail to delegate to his staff but rather they provided advice and recommendations on all cases, with direction from the claimant if they required it. Their submissions (which included inputs from the additional staff) were then routed through the claimant for approval before being passed to Ms Beattie in line with her instructions. It is patently obvious that if the claimant’s staff were able to produce more work, with the assistance of others, and all of that work had to be routed through the claimant, then he got more work not less!

16. In light of the evidence given to the Tribunal by Mrs McCarthy and Mrs Hewitt the Respondents have now finally acknowledged that the transfer of harassment cases from Mr Moore was for operational reasons rather than solely as a reasonable adjustment to Mr Moore as suggested in Ms Beattie’s IT response. The Respondent’s position was further adapted by Mrs Hewitt’s subsequent witness statement which then suggested that the reasonable adjustment was actually that the transfer happened earlier than anticipated. Mrs Stewart confirmed to the tribunal that this was because the claimant’s branch was ‘inundated’ at that time not least because of the unprecedented level of dismissals arising from the Maghaberry NCO cases and the serious industrial relations issues arising from that which included the Branch being instructed to suspend all other work for a 2 week period to provide detailed background information to a team set up to review the dismissals. It is notable that the Respondents failed to respond to the claimant’s request for disclosure of statistics relating to branch workloads nor did they provide information requested by the Tribunal in this regard. Furthermore the claimant’s email of 22 September 2009 to Ms Beattie, which she didn’t challenge at the time, clearly shows that he was completely unaware that the transfer was intended to lighten his workload or else he would not have been looking towards fill the gap left by the transfer of harassment cases. As it turns out he was not able to progress this due to the excessive workloads confirmed by Mrs Hewitt.

17. In addition Mr Wilson’s and Mrs McCarthy’s evidence clearly discredited Mrs Beattie’s assertion in her witness statement that Mrs Hewitt had retained responsibility for the management of IT cases.

18. The claimant is shocked that despite the medical evidence presented to the Tribunal, the respondents still maintain the position that his disability did not

impact on his starting time. How can they not understand that not being able to stand up without support, severe pains which are worse first thing in the morning, serious bladder dysfunction which means that it takes as long as 15- 20 minutes to go to the toilet, bowel problems combined with the need to undertake a tiring and uncomfortable exercise regime did not impact on the claimant’s starting time. Mrs Hewitt clearly states at paragraph 20 of her witness statement that the claimant told her about his morning exercise regime which shows that the arrangements which Ms Beattie said that NIPS had to collate information about disabled staff in accordance with paragraph 5.15 of the Equality Commission Code of Practice were clearly ineffectual.

19. The claimant further contends that it is inconceivable, given that Ms Beattie personally approved his time off for physiotherapy appointments that he did not tell her as she claims about his exercise regime and that she would not have recognised that physiotherapy sessions usually complement exercises which the patient is expected to do at home and which are normally required several times per day. Alongside her knowledge of the claimant’s serious mobility problems, at the very least this should have encouraged Ms Beattie to ensure that she did all she could to establish if the claimant was suffering a substantial disadvantage in line with paragraph 5.12 of the Equality Commission Code of Practice.

The Claimant’s Fall

20. Mr Wilson, Miss Morrow and Mrs McCarthy all gave evidence that they were aware of Mr Moore’s falls and stumbles and indeed that these were the subject of conversation amongst his colleagues in Headquarters but incredibly the Respondents still seek to imply that they didn’t happen by saying that they are not in the accident book. The claimant raised the fall he suffered at Maghaberry as an example of Ms Beattie’s lack of concern and would point to the discussion he had with Mrs Sloan after the incident and the Notice which she subsequently issued to Maghaberry staff about improper use of disabled car parking facilities as evidence that it did happen.

21. Ms Beattie gave evidence that she too was aware of the claimant’s falls but his office was the furthest from the front door. Yet she says that she raised the issue of his office accommodation once in the 5 years the claimant worked for her, 3 years before the deterioration in his mobility when the falls first began to occur and he had to have splints fitted to both ankles. Ms Beattie claims that Mr Moore said that he needed to be near his staff but she acknowledged that she did not consider swapping his Branch with another of her Branches which was located on the ground floor and that she made no contact whatsoever with the Premises Officer to investigate that possibility at the time or to ensure that she was made aware of any subsequent opportunities to do so.

Ms Seattle’s Alleged Failure to Carry out Mid Year Review

22. It is important to set out the basis for the interim review. Firstly it is an integral part of the laid down performance management procedures agreed between the Unions and Management. It applies the principles detailed within the NICS Staff Handbook and as such forms part of the employee’s terms and conditions of service. That is why Ms Beanie issues Notices to all NIPS staff each year stressing the importance of ensuring that they are completed. Secondly they are mandatory and thirdly they must be recorded.

23. In this case Ms Beattie indicated at the first formal review in March 2010 that Mr Moore’s performance had deteriorated and linked this to new medication he had been prescribed 6 months previously ie October 2009. That is about the time when an interim review should have been held and it was clearly particularly important in the claimant’s case as it would have allowed Ms Beattie to explain her concerns to him. Consequently Mr Moore’s objectives would have been reviewed and amended to take account of the impact of his medication, perhaps by asking someone else to take on his policy work, as Miss Morrow had confirmed had happened with her, or by allowing him more time to complete particular pieces of work.

24. Furthermore given that Ms Beattie acknowledged that there had been a deterioration in the claimant’s performance because of his medication she should have been involving Staff Welfare and referring him to OHS to consider reasonable adjustments. Absolutely none of this happened at Mr Moore’s one to ones and there is no evidence that it did when there should be if Ms Beanie had followed the proper procedures given that the interim review must be recorded. In fact there is irrefutable evidence that instead of raising her concerns about his performance with the claimant in October 2009, Ms Beattie instead waited until there was only one month left of the reporting cycle given that the first formal review records that she raised this with him shortly before he went off sick in 2010.

The Home Working Scheme

25. This is considered in detail at paragraph 7(II) of the claimant’s closing submission.

The Claimant’s Application for Special Leave

26. Mr Moore told the Tribunal that the procedure for applying for special leave is that a member of staff submits his or her application to their line manager in the first instance. The line manager’s role is to add their comments either in support of or against the application and pass it on to Attendance Management Branch which decides whether or not to approve the application in line with the relevant procedures and precedent.

27. However when Mr Moore submitted an application for 3 days special leave following the sudden death of his sister in law in ? Ms Beattie set aside the procedure applied to every other civil servant by deciding herself that he was entitled to only 1 day and failed to submit Mr Moore’s application to Attendance Management Branch. In his oral evidence Mr Moore said that he was faced with the choice of either accepting Ms Beattie’s decision knowing that he was being disadvantaged or risk antagonizing her by submitting his application directly to Attendance Management Branch without his line manager’s input. He chose the latter and Mr Wilson confirmed in his evidence that he had subsequently approved Mr Moore’s application in accordance with the procedures. Mr Wilson added that the9 month delay in approving the application had resulted partly from Ms Beattie’s long term sick absence but mainly because Attendance Management Branch had also been unable to get an input from Ms Beattie.

28. In his evidence Mr Moore did not accept Ms Murnaghan’ s contention that he had suffered no detriment because Ms Beattie had denied him the same entitlement that any other member of the Service would expect as a matter of course and the only way he had been able to secure that entitlement was by antagonizing Ms Beattie by going over her head.

29. Please also refer to paragraph 22 of the claimant’s closing submission.

The Flexi Leave Arrangements

30. This -is dealt with at paragraph 16 (I) of the claimant’s closing submission. The Claimant’s behavior to women in the workplace

31. This is considered at paragraphs 46-49 below and at paragraph 56 of the claimant’s closing submission.

The Transfer Request

32. This is discussed in detail at paragraphs 6 (N) and 7 (I) of the claimant’s closing submission. The claimant’s recollection is that Mr Wilson did in fact say that Mr Moore had indicated that his relationship with Ms Beattie was a key factor in his wish to move and indeed given that Mr Wilson and Mr Moore were close colleagues it is absolutely the case that Mr Wilson was very much aware of the stress which Mr Moore felt he was under because of Ms Beattie’s constant criticisms. It is the claimant’s case that these criticisms related directly to the disability related deterioration in his performance. Mrs McCarthy also gave evidence that Mr Moore had been. seeking a move out since mid 2008 because he was stressed out as a result of Ms Beattie’s criticisms.

Mr Johnston’s Dismissal

The claimant accepts that Ms Beattie was not involved in the decision to dismiss Mr Johnston on grounds of performance related inefficiency but both she and the claimant were centrally involved in providing advice and recommendations to senior management in the case. Ms Beattie is the policy holder on performance management issues and it is inconceivable that senior management would not have sought to avail of her experience and expertise in considering the matter. Consequently, in the same way that all work going from his branch to Ms Beattie had to be approved by Mr Moore, all work had to be approved by Ms Beattie before it went to senior management. Therefore Ms Beattie was very well aware of the failure to follow proper procedure later identified by the Civil Service Appeal Board and that Mr Johnston was dismissed before his complaint of harassment & bullying which related to the issue around his dismissal had been concluded. The claimant suggests that this supports his contention that Ms Beattie did tell him that she wasn’t concerned if the procedures were breached and NIPS had to pay out money just as long as Mr Johnston was gone.

34. The claimant was subjected to relentless and sustained criticism over? period of 18 months due to his disability related deterioration in performance which culminated in the threat of an adverse report. Ms Beattie confirmed in her evidence that at their meeting in February 2010 that Mr Moore did ask her if he was going to get an adverse report, although she said he worded it differently. Ms Beattie denies that she indicated that this was an option if he didn’t improve but the sheer scale of the criticisms set out in Ms Beattie’s IT response and witness statements, Ms Morrow’s evidence that the claimant rang her about this afterwards and that he went off sick a few days later is evidence that on the balance of probabilities did respond in the manner the claimant alleges.

35. At this point what happened to Mr Johnston was central to the claimant’s concerns for his own position and the fear that he had that his employers would show little regard for any proper procedure which led him to go off sick. All of this was a result of the respondents’ failure to properly manage the disability related deterioration in Mr Moore’s performance but rather to engage in relentless criticism which meant that the claimant feared for his own job and was no longer able to cope with the pressures of his post alongside the impact of a major disability.

Bladder Issue

36. The claimant’s case is that he attempted to explain how his bladder dysfunction impacted on him in the workplace. Ms Seattle failed to apply the considerate approach he had the right to expect, especially given the emotional difficulties involved in raising such a sensitive issue in the first place, but rather she cut him off saying ‘too much information’. Nonetheless Ms Beattie knew that the claimant’s bladder infections resulted from his disability, unfortunately she knew from her own personal circumstances with her brother that bladder dysfunction is very often associated with spina bifida,

and she knew the claimant couldn’t stand up without support which in itself would have been a obvious indicator of the need for the privacy and support rails a disabled toilet offers. In light of all of this it was entirely reasonable to have expected her to comply with paragraph 5.12 of the Equality Commission Code of Practice which states that an employer must do all it can to find out if a disabled employee is suffering a substantial disadvantage; which was clearly the case in this instance.

The Alleged Failings of the OHS

37. The claimants complaint relates to actions of the respondents not the OHS. The simple fact of the matter is that OHS asked the respondents to consider redeployment. The fact that OHS said that this may be secondary to the outcome of their enquiries with Dr McCann about Mr Moore’s possible ill health retirement did not entitle the respondents to do nothing and make no effort to establish if the redeployment suggested by OHS and requested by the claimant since 2008 would impact on his decision to seek medical retirement. The Respondents simply did what they had done since he went off sick and made no effort whatsoever to contact him about reasonable adjustments to facilitate his return to work.

Harassment

38. This is considered in detail at Section D of the claimant’s closing submission.
The Onus on the Claimant’

39. The fact that there is no onus on the disabled employee to suggest reasonable adjustments is the guidance offered by the Equality Commission at paragraph 5.24 of its Code of Practice. The reasonable adjustments which the claimant requested is dealt with at paragraph 6 of his closing submission.

40. The fact of the matter is that it was the respondents’ position in all of its written evidence and supported by the testimony of Mr McGuckin, Ms Beattie and Mrs Hewitt that all of the onus was on the claimant and that they need do nothing unless the claimant came to them. This position would breach the guidance offered by paragraph 5.12 of the Equality Code of Practice even in circumstances where they were not aware that the disabled employee was at a substantial disadvantage because they must do all it can reasonably be expected to do to establish if that is the case. In this case the respondents clearly knew that the claimant was at a disadvantage compared to his able bodied colleagues as detailed at paragraph 5 of the claimant’s closing submission and acknowledged by Ms Beattie. Yet they took no effective steps to help the claimant because they allege that he didn’t raise issues with them. This is very clearly a breach of their responsibilities under the DDA.

The B1 Monday Meetings

41. The fact is that Ms Beattie organised the meetings for 9.30 in the full knowledge that the claimant came in at 10 which put him at a substantial disadvantage because he wasnt able to do very important exercises. The claimant genuinely does not understand the respondents continuing failure to recognise that his disability impacted on his starting time for the reasons outlined at paragraph 18 above. However given that Ms Beattie claims that she did think this, it is puzzling why then she would ask the claimant if holding the meetings at 9.30 presented any difficulties for him as she claims — the fact is that she did not. Also why would she delay the meetings until 9.30 when she would have preferred to start them at 9 to facilitate the claimant — the fact that the meetings continue to be held at 9.30 more than a year after Mr Moore left shows this up for what it is — a retrospective invention deliberately intended to mislead the tribunal into thinking that action had been taken when it had not.

The Bonus

42. Mr McGuckin went to great lengths in his witness statement to discredit the claimant by denying in the strongest possible terms that he said that Mr Moore was not entitled to be considered for a performance bonus because of his sick absence. He was forced to retract this after hearing Mr Wilson’s evidence. Mr McGuckin’s decision to award, not just recommend, the bonus to Ms Beattie notwithstanding her sick absence and despite the fact that Mr Wilson acted into her post for 6 months is a blatant act of discrimination against the claimant. This is despite the fact that Mr Moore’s absence was disability related unlike Ms Beattie’s and given the fact that modifying performance related pay arrangements is quoted as an example of a reasonable adjustment at paragraph 5.20 of the Equality Commission Code of Practice.

Alternative Office Accommodation

43. This is dealt with at paragraph 42 of the claimant’s closing submission and paragraph 21 above. Clearly it was important both for business reasons and to prevent him from being isolated that the claimant’s staff were located somewhere near him whilst he was in work but it is ludicrous to suggest that this should somehow prevent him from availing of the major benefits that working from home would have had for him had he been permitted to do so.

Duty to Keep in Touch

44. The NIPS Sick absence procedures place the duty to keep in touch on the member of staff’s line manager. Secondly, it is clear that Ms Beattie did not arrange for others to keep in contact with the claimant as set out at paragraphs 50-53 of his closing statement. Ms Beattie showed a complete and utter disregard for the impact of the claimant’s disability in making no attempt whatsoever to contact him to discuss reasonable adjustments such as the transfer he had requested from 2008 or working from home he requested

in mid 2009 and February 2010. The claimant contends that this inaction and complete disregard exacerbated the stress he was Under and left him with no option but to seek medical retirement which Ms Seattle was well aware would be the inevitable outcome of her inaction.

The Medical Evidence

45. This is discussed at paragraphs 49 & 50 below.

Constructive Dismissal

46. The Respondents emphasise that a constructive dismissal is not automatically unfair if it is the case that the employer has acted reasonably. The claimant would contend that that is not the case in this instance;

• The respondents were very much aware of the serious difficulties which the claimant had to face

• Ms Seattie acknowledged on two separate occasions during her evidence that the claimant’s disability placed him at a substantial disadvantage in the workplace,

• The respondents failed to make the reasonable adjustments as outlined at paragraph 7 of the claimant’s closing submission,

• they subjected the claimant to relentless criticism as a result of the disability related deterioration in his performance rather than help him cope with it culminating in the threat of an adverse report

• They subjected the claimant to discrimination and harassment as detailed at sections B,C & D of the claimant’s submission

• they failed to follow their own procedures which had serious consequences for the claimant

• they failed to comply with several of the provisions of the Equality Commission Code of Practice and consequently they breached their statutory duty under the DDA.

47. The claimant contends that the four conditions required to establish liability for a constructive dismissal were met in this case for the reasons set out at Section B of his closing submission. It is important to consider paragraph 64 of the NIPS IT response in light of the respondents’ statement in their closing submission that the claimant left his employment because of his health and not in response to any breach of his contract. The NIPS IT response acknowledges that the claimant would not have sought ill health retirement had it not been for external factors.
48. The claimant refutes absolutely that the external factor was that he had created for himself an environment where he could no longer work with women for the reasons detailed at Section F of his closing submission. The claimant had 28 years of unblemished service and has never had any form of disciplinary action against him but rather was considered to be a very committed member of staff who was highly regarded by his colleagues. This is

confirmed by Ms Beattie and Mr McGuckins comments in his annual report for 2006/7 (pages 270 & 271 black bundle).

49. It is ludicrous to suggest that one unsubstantiated allegation which in Mrs Hewitt’s own words had been done and dusted and was never raised again would have led Mr Moore to decide some 10 months later to seek medical retirement. Indeed Ms Beattie’s evidence to the tribunal was that the only tension which existed resulting from this matter was between the claimant and Mrs Hewitt and the claimant and herself which certainly does not constitute the ‘environment which the respondents’ claim Mr Moore had created for himself. The claimant would contend that the factors outlined at paragraphs 43-55 of his submission present a much more plausible explanation of the factors which led him to seek ill health retirement and that they fit the timeline of events.

50. Clearly it was the claimants application for ill health retirement, which he was forced into by the respondents’ actions, which initiated the chain of events which led to Dr McCann’s report and Dr Mills’ subsequent recommendation that his application should be approved. There is absolutely no evidence to suggest that if the claimant not been forced into applying for ill health retirement that his health would have led to the Department either to seek to initiate the ill health retirement process itself or to seek to dismiss the claimant on grounds that he was unfit to perform his duties. Indeed in her evidence Ms Beattie said that she had never considered referring Mr Moore to OHS before because he was turning up for work, had never had a sick warning and was performing effectively and therefore she would have had absolutely no reason to seek OHS advice. Furthermore she confirmed at paragraph 11 of her witness statement response that the question of Mr Moore’s ill health retirement had not been raised by her and in her oral evidence she confirmed that Mr Moore had never given any indication that he intended to seek medical retirement either before he went off sick in February 2010 or at any time previously.

51. Therefore the question of medical retirement would not have been raised had the claimant not been forced into requesting it. It was the respondents’ failure to make reasonable adjustments alongside relentless criticism of his disability related deterioration in performance and the fear that he might be dismissed because of that without the proper procedure being applied which led him to seek medical retirement. Had he been permitted to work from home in some format with adjustments to his workload and office accommodation the claimant has absolutely no doubt that he would have been able to continue working until he was 65. By the time Mr Moore had attended an appointment with Dr McCann immediately prior to his report to Dr Mills he had determined that medical retirement was the only option left open to him.

Reasonable Adjustments

52. The reasonable adjustments which the Respondents claim to have made were discussed in evidence given to the tribunal as detailed at paragraph 8 of the claimant’s closing submission and paragraphs 6 vii-viii above. The Respondents suggestion that there doesn’t need to be any formal agreement about reasonable adjustments again ignores the advice given by the Equality Commission at paragraph 5.18 of its Code of Practice which says that any reasonable adjustments should be agreed with the disabled member of staff before they are applied. In fact the adjustments referred to by the respondent were so informal that they were never even mentioned to the claimant let alone agreed with him neither were they ever mentioned to any of the other staff affected by them such as the other attendees at B1 or Personnel Governors meetings. The claimant’s case has more to do with the fact that the majority of these adjustments never happened and are merely retrospective inventions designed to persuade the tribunal that action had been taken when in fact it had not.

53. The respondents refer to the ‘very clear evidence’ given by Mrs Hewitt that it
would have been wrong to make assumptions about the claimant’s needs by approaching him to ‘interrogate’ him when he had not flagged up any problem that needed attention. Paragraph 5 of the claimant’s submission shows the very substantial knowledge which the respondents had about the impact of the claimant’s disability and the substantial disadvantage he faced because of that. Paragraph 6 of the claimant’s closing submission discusses the reasonable adjustments which he had suggested. In addition paragraph 25 of the Reasonable Adjustments Policy makes it clear that the best way to establish the disabled person’s needs is to ask them. Mrs Hewitt’s position (bearing in mind that she is the Head of Equality and Diversity Within NIPS and has lead responsibility for disability issues) is also at odds with paragraph 5.12 of the Equality Commission Code of Practice which states that employers must do all they can to establish if a disabled employee is suffering a substantial disadvantage.

54. The onus on the disabled person to consult with their line manager under the Reasonable Adjustments Policy is considered at paragraphs 3, 4 and 13 of the claimant’s closing submission. In short, firstly, the policy is in itself contrary to the provisions of the DDA, secondly, it is contrary to paragraph 5.24 of the Equality Commission Code of Practice which states that there is no onus on the disabled employee to suggest reasonable employers but it is good practice for the employer to ask, thirdly that the respondents were fully aware of the substantial disadvantage the claimant suffered as discussed at paragraphs 5.1-5.5.4 of the claimant’s closing submission and indeed Ms Beattie acknowledged on two separate occasions in her evidence to the tribunal that Mr Moore’s disability placed him at a substantial disadvantage in the workplace and fourthly that the claimant did in any event suggest reasonable adjustments as detailed at paragraphs 6.1 of his closing submission.

55. It is clearly not the case therefore as the respondents suggest that the claimant failed to understand that having disability is not necessarily synonymous with being put at a disadvantage, in fact the claimant is acutely

aware of the substantial disadvantage his disability causes on a daily basis. Neither is it the case that the claimant failed to articulate the disadvantage he said he was under and even if it was Ms Seattle’s acknowledgement referred to in the preceding paragraph meant that she was under a statutory duty to make reasonable adjustments to remove the substantial disadvantage the claimant faced.

56. All of the issues which the respondents state will require the Tribunal to enquire about at paragraph 57 of their submission have been covered in the claimant’s submission. Ms Beattie’s practice of not applying her own policies and procedures and the substantial disadvantage which resulted for the claimant compared to his able bodied colleagues is considered at paragraphs 12-15 of the claimant’s submission. The impact of the Respondents subsequent failure to make reasonable adjustments is set out a paragraph 9 of the claimant’s submission.

57. Had reasonable adjustments been made the substantial disadvantage which the claimant faced would have been removed. Paragraph 16.3 of the claimant’s witness statement sets out the major benefit which working from home would have brought him in terms of the substantial disadvantage he faced (page 154 black bundle). Paragraph 7.1 (i) and (iii) of his closing submission shows how a transfer to a less challenging post with a lighter workload and lightening of his workload would have addressed the substantial disadvantage he faced. Had the claimant’s office accommodation been relocated to the ground floor with access to a disabled toilet, alongside appropriate comfort breaks, this would have had the effect of removing the substantial disadvantage he faced resulting from his mobility and bladder/bowel problems in the workplace.

58. Whilst the claimant believes that being allowed to work from home working would in itself have been largely sufficient to address the substantial disadvantage he faced, it may be that more than one reasonable adjustments may have been required which is the subject of paragraph 5.19 of the Equality Commission Code of Practice.

59. The subject matter of paragraph 60 of the respondent’s submission is also considered at paragraph 5.24 of the Equality Commission Code of Practice.

The Extent to which the Adjustment would Prevent the Disadvantage

60. At paragraph 62 the respondent quotes the case of HM Prison Service v Johnston where the stage had been reached that the consequences of the disability were irretrievable and the duty to make adjustments was therefore laid to have fallen away. This is at not the case here for the reasons outlined at paragraphs 50-5l above. Rather than being asserted, Ms Beattie acknowledged in her evidence that the claimant was at substantial disadvantage compared to his able bodied colleagues. Working from home would have removed the disadvantage as discussed at paragraph 32 above.

61. Unlike the case of Project Management Institute v Latif quoted by the respondents at paragraph 63 of their closing submission, in this case the claimant very clearly requested reasonable adjustments as set out at paragraph 6 of his own closing submission. Paragraph 32 above covers the issue of how the reasonable adjustments which the claimant sought would have removed the substantial disadvantage acknowledged by Ms Beattie in her evidence to the Tribunal.

62. The claimant’s ability to identify other suitable posts to which he could have been transferred was deliberately obstructed by the respondents as indicated at paragraph 7.10) of his closing submission.

63. Contrary to the case of Wilson v The Secretary of State for Work and Pension and others quoted by the respondent, working from home clearly was a feasible option in Mr Moore’s case as discussed at paragraph 7.1(ii) of his closing submission.

64. The reasonable adjustments which Ms Beattie claims to have made for the claimant are considered at 8 of his closing submission and at paragraphs 6 vii-viii above.

Disability Discrimination and the Duty to Consult

65. The Respondent’s acknowledgement at paragraph 67 that they did not actively initiate a consultation is yet again at odds with the Equality Commission Code of Practice which says that an employer must do all that can reasonably be expected of it to establish if a disabled employee is suffering a substantial disadvantage. Furthermore the Reasonable Adjustments Policy states at paragraph 5.25 that the best way to find out about the disadvantage a disabled person might suffer is to ask them. It should also be said that in this case the respondents failed to take any effective steps comply with their obligations to remove the substantial disadvantage the claimant faced which they knew all about and which Ms Beattie acknowledged existed in her evidence. The claimant would contend that the reasonable adjustments which Ms Beattie said she made were mostly retrospective inventions than anything to do with continuing and ongoing adjustments as the respondents claim.

66. The Respondent quotes Harvey on Employment Law and the case of Tarbuck v Sainsbury Supermarkets in appearing to concede that they did not conduct the proper assessment which Ms Beattie told the Tribunal she conducted through informal discussion with the claimant. They add that the need to consult with the employee is no longer good case law and that all that matters is whether the employer complied with its obligations or not. The position outlined above is clearly at odds both with the NIPS Reasonable Adjustments Policy which requires a disability evaluation form to be completed and yet again with the Equality Commission’s Code of Practice which quotes a ‘proper assessment’ of one of the steps which it might be reasonable for an employer to take even

proceedings under the Act. Courts and industrial tribunals must take into account any part of the Code that appears to them relevant to any question arising in those proceedings.

67. In response to paragraph 73 of the respondents submission, paragraph 5.12 of the Equality Commission Code of Practice makes it clear that the employer must do all it can reasonably be expected to do to establish if a disabled employee is suffering a substantial disadvantage and paragraph 5.20 states that a proper assessment is one of the actions that an employer might reasonably be expected to take. This is clearly at odds with the respondents’ position that they need simply sit back and do nothing even though they know that an employee is disabled and suffering a substantial disadvantage, unless the employee’s requests for assistance are made specifically under paragraph 12 of the Reasonable Adjustments Policy. This is not only in breach of the Equality Commission Code of Practice but it also breaches the DDA which requires the employer to make reasonable adjustments where they know that an employee is disabled and is suffering a substantial disadvantage.

68. The fact is that the claimant clearly did consult with his line manager about reasonable adjustments (paragraph 6 of his closing submission) and in so doing effectively complied with paragraph 12 of the Reasonable Adjustments Policy which should have led his employers to implement the remaining provisions of the policy.

Quantum

69. The claimant absolutely rejects the respondents’ suggestion that any compensation with respect to loss of feelings should be minimal if liability is established. The respondents’ acts and omissions have caused him severe stress and anxiety as detailed at paragraph 9 of his closing statement.

70. The respondent’s suggestion that the claimant’s claim for uplift for failure to adhere to the statutory grievance procedure should fail for lack of proof is nonsensical. Ms Murnaghan herself confirmed as far back as January 2010 at a case management discussion that the internal grievance had not been completed and initially tried to lay the blame for the delay on the claimant. Mr Buggy told her then in quite blunt terms that there was no excuse for this and strongly advised the respondents to finalise the matter as a matter of urgency. More recently Ms Murnaghan again confirmed to Mr Corothers at the first session of the hearing at the end of May that the internal grievance had still not been completed. To date the claimant has still not received any confirmation of the outcome of the matter.

71. The claimant is absolutely certain that if he had been given the assistance and support he needed by way of reasonable adjustments he would have continued to serve until normal retirement age. It was the fact that not only did the respondents fail to provide reasonable adjustments to remove the

substantial disadvantage he faced, Ms Beattie in particular subjected him to a relentless and sustained campaign of criticism which led to him fearing for his job, alongside detrimental treatment and harassment. The claimant could no longer cope with the challenges of a heavily loaded high profile post in addition to the emotional and physical strains of a severe disability. This is why the claimant felt he had no other option but to seek medical retirement.

72. Consequently, it is absolutely the case that the claimant would not have lost his job had it not been for the discrimination he suffered at the hands of the respondents. Far from it being the case that the ill health retirement application serves to break the series of circumstances for which the Respondent is to be held legally responsible for as suggested at paragraph 78 of the respondents’ submission, the application is in fact the direct result of the respondents’ actions. This matter is further discussed at paragraph 29 above, In all the circumstances the claimant contends that the case of Chagger v Abbey National is an appropriate comparator

73. The claimant would strongly contest the respondents’ contention at paragraph
81 of their submission that there was no discrimination, much less a long campaign of same for reasons outlined in his closing submission. He would further contest that his retirement on grounds of ill health would have been inevitable for the reasons outlined at paragraphs 29, 49 & 50 herein.

74. Aggravated damages can relate to a failure to follow internal policies and procedures. NIPS very clearly failed to apply very important policies to the claimant namely the Performance Management system, the Reasonable Adjustments Policy and the Sick Absence procedures. Ms Beattie acknowledged in her evidence that as Head of Personnel she had a particular responsibility for ensuring that these policies were applied by managers right across the Service. Given that responsibility and the fact that she would be very well aware of their provisions there is no logical reason for her failure to apply the policies to the claimant. The complainant contends that Ms Beattie’s and NIPS’s failure to apply these policies and procedures discriminated against him as outlined at paragraphs 12-15 of his closing submission. The impact of the failure consequently to apply reasonable adjustments is considered at paragraph 9 of the claimant’s closing submission.

75. The claimant contends that if liability is established damages should reflect the Vento upper band. The claimant suffers from a very serious disability which has several elements, each very serious in its own right. Following his return to work in early 2008 after his second operation, the subsequent deterioration in the claimant’s health and the increase in his medication needed to help him cope with that began to significantly impact in the workplace. The claimant’s employers were very much aware of the substantial disadvantage this placed him at compared to his able bodied colleagues him at as outlined at paragraph 5 of the claimant’s submission yet they took no effective action to remove the disadvantage. Rather than help and support the claimant to enable him to return to full effectiveness, he was subjected to relentless criticism because of his disability related deterioration in performance, detrimental treatment and harassment over a period of 18

months which led him to fear for his job and go off sick. It was this fear and the failure to contact him at all to discuss any reasonable adjustments to facilitate his return to work which left the claimant with no option but to end his employment of 28 years by seeking medical retirement. For these reasons, the claimant would respectfully suggest that his case is much more serious than those detailed by the respondent at paragraphs 83-85 of their submission.

76. The claimant made it clear to the tribunal that he had been under great stress in taking forward a complex tribunal case without the benefit of legal advice and that on top of coping with the physical and psychological impact of a severe disability he had not yet felt able to take concrete steps to look for another job at this stage. He has made a number of tentative enquiries with respect to part time opportunities with an eye to the future once he has put behind him the emotional stress of being forced out of his job as he sees it. He also spoke to Bangor job market several months ago when it was agreed that he should visit them when he was ready and they would consider suitable opportunities and whether there is any work that he would be able to do from home.

77. The respondent’s statement at paragraph 89 of their submission that it is significant that the claimant did not say that he was retiring under protest or that he had any complaint or grievance against Ms Beattie, in particular, is factually incorrect. It is clear that the claimant did indicate that he was suffering from work related stress when he went off sick in February 2010 and indeed the report from his GP, Dr Simpson, confirms that he was put on and remains on medication for low mood because of this. In addition the reports completed by Nurse McClean and Dr Mills OHS make it clear that the claimant’s absence had been brought on by a combination of disability and work related stressors. Also, in his letter to Dr McCann of 11 May 2010 Dr Mills again points to the work related issues and in particular a bad working relationship with his line manager.

Conclusion

78. The claimant absolutely refutes the respondent’s statement that he was in any way disingenuous in his oral evidence. Rather it is the respondents who have been deliberately misleading by inventing reasonable adjustments after the fact to suggest that actions have been taken when they haven’t as evidence by the lack of evidence to support them. In fact it is very noticeable that in all the paperwork put before the tribunal that there is not one single document or email of any kind involving Ms Beattie, Mr McGuckin, Mrs Hewitt, Mrs Stewart, Staff Welfare or the Premises Officer discussing the action which was being taken to address the substantial disadvantage suffered by the claimant. This is despite the fact that several witnesses said they were personally aware of Mr Moore’s falls and concentration difficulties for example and that Ms Beattie acknowledged that his performance had deteriorated because of his medication and that his disability placed him at a substantial disadvantage compared to his able bodied colleagues.

THE INDUSTRIAL AND EMPLOYMENT TRIBUNALS

Between

DAVID MOORE

-V-

NORTHERN IRELAND PRISON SERVICE
The Respondent’s Rejoinder to the Claimant’s Submissions

1. The Respondent refutes the assertions contained within the Claimant’s closing submissions as if set out herein and traversed seriatim. In addition to this, particular consideration is to be paid to several of the assertions contained therein.

Legality of the NIPS Policy

2. Firstly, at paragraph 3 of the Claimant’s submissions, under the subtitle ‘The Facts’ the Claimant challenges the legality of the Respondent’s Reasonable Adjustment Policy (Bundle 2, pps 100-105). The Respondent contends that the Tribunal has no jurisdiction to consider this apparent challenge as it was not articulated in the Claimant’s originating application, (Bundle 1, pps 3-48); nor was it identified as an issue in the agreed Facts and Issues (Bundle 1, pps 117- 120). Indeed, in the Claimant’s witness statement (Bundle 1, p. 134) at paragraph 5, the Claimant asks: “did the Respondent have adequate regard to the internal policies and procedures …“ and at paragraph 5.1, specifically refers to the ‘NIPS Reasonable adjustment Policy. No-where in this or any other document is there any indication that the Claimant purported to challenge the legality of that policy. It is therefore submitted that the Claimant cannot raise this legal argument in his closing submissions, at a time when the Respondent has been precluded from advancing any evidence or argument to counter the head of claim.

3. Furthermore, and for the avoidance of doubt, the Respondent does not accept that the impugned policy is in breach of the DDA, as alleged or at all.

The Claimant’s Knowledge of the Policy

4. The Respondent also wishes to highlight the inadequacy of the Claimant’s
assertion that he could not be expected to ‘be aware of the provision’ of a policy when he was merely copied into an email pertaining to it in 2007 [paragraph 5.1 of the submissions]. At its height this assertion is disingenuous in the extreme. The Claimant’s evidence at the hearing was that he was ignorant of the fact that there were any internal disability policies in existence at all, which he might have then referred to and considered with reference to his particular issues. Moreover, upon being questioned by the Chairman, Mr Crothers, the Claimant asserted that he had only gone to investigate whether in fact the Respondent had any policies in respect of disability during the three month period after he left on sick leave in February 2010. The evidence as to his involvement in discussing the policy (by redirecting email queries in relation to same); being present when the policy was discussed at meetings; and advising on issues which touched on the policy, [see documents contained in Bundle R2] must therefore be viewed in the context of the Claimant’s assertion that he was unaware of the existence of any such policies at all until some point after he went on sick leave. Consequently, the Claimant’s assertion that he was not aware of the provisions of the policy is entirely at odds with the evidence given by him at the hearing.

Mr Wilson’s Evidence

5. Additionally, at paragraph 5.2iii the Claimant incorrectly misrepresents the evidence given by Mr Wilson. Mr Wilson’s evidence in response to the direct question posed by Mr Spratt: ‘Did he say why?’ (in relation to the Claimant seeking the transfer at that time) was succinctly put by Mr Wilson as being ‘because he wasn’t content in the job he was in’. There was no mention whatsoever of the Claimant’s ‘inability to cope with the pressure of work ‘ or disorientation being the reasons why he sought the transfer. This type of inaccurrate misrepresentation of the evidence is characteristic of the Claimant’s approach to the hearing and indeed, the events which he contends have given rise to these proceedings.

The Respondent’s Knowledge of the Disadvantages of the Claimant’s Disability

6. The Respondent accepts that it was aware of certain aspects of the Claimant’s disability which he brought to the attention of its servants or agents. However this piecemeal information, mentioned casually by the Claimant in the context of other issues, is far from being synonymous with the Respondent being
reasonably expected to know of all of the aspects of Claimant’s disability, and from that, the potential that those aspects were likely to have in respect of
placing him at a substantial disadvantage in comparison with persons who were

not disabled. For example: the fact that the Claimant mentioned to Mrs Hewitt that he carried out a morning exercise regime, is not the same as imputing to her the knowledge that that morning exercise regime would put him at a substantial disadvantage in that he could not start work at 9.3Qam, rather than 10am. This would not have been the case, had the Claimant contended that, for example, he had a daily physiotherapist appointment, the timing of which prevented his starting work by9.30a.m. There was nothing in the information imparted by the Claimant to the Respondent that indicated that the exercise regime could only be carried out at a certain time in the morning.

7. Furthermore, the Claimant at paragraph 5.3 makes another entirely novel argument which was not pleaded nor argued during the proceedings. The Respondent contends that the Tribunal should not consider the argument as to the alleged inadequate internal collation of information in respect of the Claimant’s disability.

Access to Disabled Toilets

8. The Claimant has misrepresented the evidence given by Ms Beattie as to the requirement for him to have access to a disabled toilet. It is important to note that the Claimant’s case as put in his witness statement, (Bundle 1, p. 160) is more subtle than this: he complains that his office was not sufficiently proximate to the disabled toilet on the 3^rd floor. Ms Beattie’s evidence was that on at least two occasions the Claimant was offered accommodation on the ground floor (which is closer to both disabled toilet facilities and the entrance to the building). The Claimant has conflated the issues of proximity to disabled toilets and the fact that he failed to advise Ms Beattie at any stage as to his requirement to avail of disabled toilet facilities- he merely assumed that she would have known that his disability caused him to need to use those facilities. It is to be understood that not every disabled person will need to use disabled toilets, and it would be wrong of the Respondent to have drawn that assumption.

The Claimant’s Evacuation Plan

9. Moreover, the Claimant’s complaints in relation to Ms Beattie failing to personally ensure that he had a personal emergency evacuation plan were not pleaded in his witness statement. The referral to this issue purely in cross examination of Ms Beattie, without any indication that this would be a live issue at the hearing, unfairly prevented the Respondent from advancing oral evidence as to the safety drills which were habitually carried out, and the Claimant’s lack of cooperation with same. In a similar vein the Claimant’s assertion at paragraph 9.1 IV of the submissions was not the subject of pleadings or indeed the Claimant’s oral evidence (viz, that he “faced the humiliation of looking for someone

to help him leave the building during practice and real evacuations”) and so should not considered by the Tribunal, given that the Respondent has not had the opportunity to rebut this in the normal way.

Working from Home

10. The Claimant repeatedly fails to grasp the fact that his requests made to Ms
Beattie to work from home (which were all granted) were not made in the
context of assisting him in relation to his disability; and so, cannot be
considered as constructive notice to the Respondent that working from home would have been a reasonable adjustment for it to propose in alleviating substantial disadvantages caused by his disability; Accordingly, and as the Claimant never made an informal or formal request to the Respondent for home working as a reasonable adjustment for his disability; (much less even indicating that home working would be an advantage for him) his subsequent criticism that the Respondent failed to actively consider this, or provide an
audit trail of reasons rejecting it as an option, is wholly misconceived.

Lightening the Workload

11. It is also contended that the Claimant’s assertion is factually incorrect that the ‘only evidence presented by the respondent’ as to efforts to lighten the Claimant’s
workload was the transfer of harassment cases to Mrs Hewitt. This assertion ignores the fact that Ms Beattie’s evidence was that there were various actions taken with a view ensuring that the Claimant’s workload was ‘lightened’. These included: the fact that she did not ask or expect him to assume additional work in the same manner as the other B1s; the fact that additional staff was provided; the fact that she re-wrote his work when it was inadequate, rather than referring it back to him, as ways of ‘lightening’ his workload.

Proposed Move to Ground Floor

12. It is not accepted that Ms Beattie’s assertions in relation to offering to move the Claimant’s office to the ground floor were contradictory It is correct that she offered the Claimant the facility to move to the ground floor which would have made access to the building and the disabled toilet easier for him. However, on re-reading Ms Beattie’s statement (paragraph 87, p. 224, Bundle 1) she states “I did want to make sure that in leaving things as they were I was not disadvantaging Mr Moore so I asked him whether or not the proposed moves included Mr Moore and if so would this have helped him.” (contrary to the Claimant’s assertion, there is no mention whatsoever in that paragraph that Ms Beattie would have moved the Claimant’s staff to facilitate him. Indeed, in the course of cross examination, Ms Beattie did not accept that it was imperative that the Claimant was physically close to his staff, and explained that many other managers were not located on the same

floor as their staff. Moreover, Ms Beattie’s and Mrs Hewitt both gave evidence that they (and indeed all staff) would come to the Claimant’s office in deference to his mobility issues. As a consequence of this, his being more remote from his staff was unlikely to pose any disadvantage for him.

13. It is also important to note that the Claimant rejected this offer of a transfer to the ground floor out of hand: he did not counter with a suggestion that Ms Beattie should move all of his staff to the ground floor. The inclusion of the phrase at paragraph 7 IV of the Claimant’s submissions to the effect that ‘Mr Moore’s wish to move with his staff to the ground floor” is the first ever assertion that that was in fact his wish. Rather the Respondent had been left to form the view that the reality of the situation was that the Claimant preferred his office for personal reasons, amongst which was the fact that its distance from the exit meant that a blind eye was turned to his smoking in his office. The Claimant did not adduce any evidence at any stage that what he really wanted was to move to the ground floor with his staff. He simply flatly refused when the offer was made by Ms Beattie and again, several years later when it was reoffered by Mrs Hewitt.

14. The Claimant refers to the fact that Mrs Hewitt and Mr Guckin were surprised to hear the full extent of his disadvantage (paragraph 8.1 III) as evidence that a ‘proper assessment’ had not been conducted. This assertion is fundamentally flawed. The Respondent did perform a ‘proper’ assessment within the context of the information made available to it by the Claimant. The fact that the Claimant failed to divulge aspects of additional disadvantage does not undermine the validity of the adjustments made in respect of those aspects that the Respondent did know about, or could have reasonably been expected to have known about. At the crux of the Claimant’s case is the criticism that the Respondent, knowing as it did about some of the Claimant’s disability related disadvantages, should have interrogated him to ensure that there weren’t other aspects which he had failed to advise it of.

15. The Claimant criticizes the fact that Ms Beattie did not repeat her offer of a move to the ground floor in 2008 after his second operation. However, this criticism must be viewed in the light of Ms Beattie’s evidence on that matter, which was that the Claimant had failed to highlight to her any issues or differences in his mobility at that stage.

16. The Respondent contends that the Claimant’s interpretation of case law and the legislation to the factual matrix which gave rise to these proceedings is incorrect. The appropriate application of the law to the facts of these proceedings is as has been set out in the Respondent’s closing submissions of 30th June 2011. The Claimant’s constant referral to the ‘inefficiency procedures is misguided in the context wherein Ms Beattie did not find as a matter of fact

that the Claimant’s performance (although it had deteriorated) was of a sufficiently low level to merit the initiation of the inefficiency procedures. There must be an appreciation that not every instance of a deterioration in performance will meet the test for inefficiency in the context of the Respondent’s internal procedures.

Annual Reports

17. Additionally, and as a matter of fact, the Claimant belatedly made the assertion in the course of the hearing that Ms Beattie had not completed his annual reports for the years 2007/2008; 2008/2009 and 2009/2010. Ms Beattie’s explanation as to why there was no report for 2009/20 10 was clear- the Claimant had left work in February 2010 and there was no opportunity for the annual performance review to occur thereafter. This therefore leaves the two years of 2008/2009 and 2007/2008 at issue. The assertion put in the Claimant’s closing submissions (at paragraph 15 ‘V) (viz, that the Claimant’s Branch falsified satisfactory markings to cover the tracks of management failing to complete annual reports) is too incredible to be worthy of comment. Moreover, as this hypothesis was not put to Ms Beattie or in any way advanced during the Claimant’s evidence, it is contended that the Tribunal must not afford any weight to this assertion.

18. Neither was any evidence of any nature put before the Tribunal to support the Claimant’s assertion that “the computer shows an overall performance mark for [2009/2010]” notwithstanding that a report had not been completed for him that year (paragraph 15 V). In any event, one would presume that any performance mark for the Claimant’s pay in 2009/20 10 would refer to the previously completed annual report, of 2008/2009, rather than the report that was due to be completed in April 2010 and so there is no apparent logic to this argument.

19. The Respondent denies, as a matter of fact, that the Claimant advanced any evidence that he suffered from direct disability discrimination on the basis that he was only permitted to accumulate time outside of the flexi scheme in the amount of 30 minutes per day. Neither was any evidence adduced to the fact that Mr McFeeters and/or Ms Pyper were permitted to accrue more flexi time than the Claimant.

20. The Claimant has further inaccurately misrepresented the evidence given by Mr Millard in support of his case (paragraph 51 of the Claimant’s Closing Submissions). The Claimant asserts that Mr Millard revealed Ms Beattie’s statement to be untrue. This is not the case. In response to the question from Mr Spratt “Did [Ms Beattie] indicate that she wished to pass the responsibility [for keeping in touch with Mr Moore] to Attendance Management or Equality and Diversity?” Mr

Millard’s response was “I have no recollection”. This is entirely different from the Claimant’s assertion in his submissions that Mr Millard denied that Ms Beattie had mentioned it to him.

21. Equality, the Claimant is also wrong in his assertion that Ms Hewitt denied that her branch kept in contact with the Claimant during his sick absence. Accordingly the Claimant’s assertion that Ms Hewitt’s evidence contradicted that of Ms Beattie is factually incorrect. Ms Hewitt’s evidence was that it was not her role to offer reasonable adjustments to the Claimant, but this does not mean that her Branch could not keep in touch with him during his absence.

22. Finally the Respondent denies that the reference to the Claimant’s very serious discriminatory comments to Mrs Hewitt was introduced into these proceedings in an effort to discredit or humiliate him. These comments were a matter of fact, which the Claimant has not denied, and not to mention them would have been to fail to address the reality of the circumstances wherein the events unfolded, prior to the Claimant seeking Ill Health Retirement. The Respondent does not accept or understand the assertion that Ms Beattie and NIPS did not refer to the allegations in their witness statements. Ms Beattie referred explicitly to the Claimant’s behaviour in this regard (at paragraphs 48- 56, pps 213, 215 and at paragraph 129. p.238 Bundle 1);and Mrs Hewitt also made explicit reference to the incident (paragraphs 10- 16, pps 261 -264, Bundle 1).

Conclusion

23. The inaccurracies and the misrepresentations highlighted above are characteristic of the manner in which the Claimant has presented this case. It is trite to observe that ‘in law, context is everything’: in this instance the context of the factual matrix must also be carefully considered when evaluating the Claimant’s evidence. It is contended that the Claimant’s assertions are not capable of belief and are based on the unstable foundation of half-truths and misinterpretations. The Respondent stands by its contention that this case should be dismissed with an order for costs in the Respondent’s favour.

Neasa Mumaghan
Bar Library
20^th July 2011