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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Workman v Belfast City Council [2012] NIIT 00371_11IT (18 January 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/00371_11IT.html
Cite as: [2012] NIIT 00371_11IT, [2012] NIIT 371_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 371/11
CLAIMANT: Alexandra Maree Workman
RESPONDENT: Belfast City Council
DECISION
The unanimous decision of the tribunal is that the claimant’s claims of disability discrimination (direct discrimination and failure to make reasonable adjustments), and of victimisation, be dismissed.
Constitution of Tribunal:
Chairman: Mr D Buchanan
Members: Mr J Boyd
Mr P McKenna
Appearances:
The claimant was represented by Mr B McKee, Barrister-at-Law, instructed by John Boston & Company, Solicitors.
The respondent Council was represented by Mr P Ferrity, Barrister-at-Law, instructed by Director of Legal Services, Belfast City Council.
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1. |
(i) |
The
claimant, Mrs Alexandra (Sandra) Maree Workman, by a claim presented to the
tribunal on 24 January 2011, alleged that the respondent Council, her
employer, had discriminated against her under the provisions of the
Disability Discrimination Act 1995, as amended by the Disability
Discrimination Act |
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(ii) |
The issues to be determined by the tribunal were agreed at a Case Management Discussion on 19 May 2011 and a copy of the Record of Proceedings (dated 23 May 2011) and a list of the issues are attached at Annex A.
This
list of issues had been somewhat refined by the commencement of the
It is accepted that the claimant is disabled. |
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(iii) |
In
order to determine these matters, we heard evidence from the claimant,
We heard evidence from the following on behalf of the respondent Council:- |
Ms Sharon Steele (Principal Human Resources Adviser);
Ms Gail Wright (Principal Human Resources Adviser,
Employee Relations); and
Ms Catherine Taggart (Community Development Manager).
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We also had regard to documentary evidence submitted by the parties. |
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(iv) |
We find the facts set out in the following paragraphs. |
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2. |
(i) |
The claimant started work with the respondent Council on 6 January 1986, and has given the respondent 25 years of loyal and devoted service. She is clearly a conscientious worker who enjoys her work, and who wants to continue to work and contribute in a positive way despite her disability. This disability (which as we have stated, is conceded, and of which managers were aware) arises out of a serious heart-condition, chronic ischemic heart disease, which developed in 2004. At that time she was acting-up. |
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(ii) |
When the claimant started work with the respondent in 1986 she was employed as a Community Development Assistant in the Development Department. She attended University and obtained the required qualifications in Community Youth Work, which was a prerequisite to appointment to the higher post of Community Development Worker, to which she aspired. |
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(iii) |
In 2001, she was offered the job of Community Development Worker with effect from 11 June 2001. The trade unions raised objection to this, so the offer was re-phrased to state that the claimant’s role was to consolidate training. She reverted back to her substantive Community Development Assistant post on 4 January 2002, but was paid a honorarium from then until May 2002 to recognise she was still performing the Community Development Worker role. |
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(iv) |
On 1 September 2002 she was re-appointed as a Community Development Worker, and from then until 31 December 2010 has acted up in that role under various descriptions or guises such as acting-up, temporary promotion, secondment, or training responsibilities. It is clear that during this prolonged period of acting-up the claimant has performed the duties of Community Development Worker satisfactorily. We record at this stage that the duties of that post are managerial and that the job is sedentary. Her substantive post of Community Development Assistant is one which requires physical activity and exertion, for example by interacting with children and young people. |
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(v) |
During her period of acting-up the claimant applied for numerous posts which had been advertised, both internally and externally, but was unsuccessful, on occasions following interview. |
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(vi) |
When the claimant was diagnosed with severe ischemic heart disease in 2004, this necessitated major surgery and a continuous drugs regime to control its effect and the consequent conditions. At that stage the respondent Council was aware of the need for reasonable adjustments for the claimant. There is recognition of, and reference to, reasonable adjustments in a return to work interview of 29 March 2006. It is clear that Belfast City Council accommodated the claimant with reasonable adjustments in her acting-up post. She does not dispute this. Her visits to Occupational Health in the period from 2005 – 2010 in relation to her medical condition assessed her ability to work in the acting-up post of Community Development Worker. |
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3. |
(i) |
In 2010 Belfast City Council carried out a review of the structure of its Community Service Department. This resulted in the Department undergoing a period of re-organisation in order to achieve efficiency savings. This review also triggered a re-categorisation of all existing posts. Posts were re-named and the designation ‘Community Development Officer’ replaced that of ‘Community Development Worker’, and ‘Community Development Assistant’ became ‘Assistant Community Development Officer’.
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the new structure there were to be 26 Community Development Officer posts, of
which 21 would be filled by existing Community Development Workers. The
remaining 5 Community Development Officer posts were |
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(ii) |
As a consequence of this, the respondent Council wrote to the claimant on 4 June 2010 informing her that following the “recent categorisation process”
she was to become an Assistant Community Development Officer (part-time), ie the post in the new structure which was broadly equivalent to her previous substantive post of Community Development Assistant. At this stage, nothing was done to assess whether the claimant could perform the duties of her substantive post. Indeed, nothing had been done in this respect since 2006. |
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(iii) |
On
8 July 2011 the claimant lodged a grievance with the respondent. In this
letter she complained that a decision had been taken not to recruit for her |
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(iv) |
The respondent did in fact proceed to fill the five vacant Community Development Officer posts, which were advertised externally. The claimant was not retained in her post and had to apply for it. The respondent had considered making the claimant permanent in her acting-up post, but decided against it. Reasons for not doing so included the following:- |
(a) it would have meant the claimant going from her substantive post to one which was five grades above it;
(b) it involved working 37 hours per week as opposed to 24, though it is clear from the evidence of the respondent’s witnesses that any change in the number of hours would not have been a significant factor in the equation;
(c) it did not conform to the merit principle, and linked to this was the view that such action did not conform to the Local Government Staff Commission Code of Procedures of Recruitment and Selection. Guidelines in Part B of the Code stated that in normal circumstances, all posts should be publicly advertised, though there was a recognition that there may be times when Councils needed to use alternative recruitment methods, eg secondments or acting-ups, to cover for maternity leave, development opportunities and temporary project work. However, although accepted by the respondent’s witnesses in cross-examination that the LGSC Code was drafted in the overall context of the legislative framework of anti-discrimination legislation, such as the Disability Discrimination Act 1995 and the Code of Practice issued under it, this does not seem to have been to the forefront of their minds when considering the claimant’s position;
(d) the new Community Development Officer post was not the same as the Community Development Worker post in which she had acted up. What evidence there was on this point would have tended to lead us to the opposite conclusion; and
(e) there were other more reasonable options.
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The claimant was not redundant. She had a post to go back to, namely her substantive post of Community Development Assistant/Assistant Community Development Officer. This was the appropriate time to consider reasonable adjustments, and the respondent had never found itself unable to find a suitable post for an employee where redeployment or medical grounds had become necessary. This was because of the number of Grade 4 posts in an organisation of its size. There was confidence among managers and Human Resources staff that something suitable could be found for the claimant.
The respondent did not consult with the claimant about these matters. |
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(v) |
The claimant therefore went forward to interview on 15 October 2010. She was unsuccessful at interview, though she was placed on a reserve list which was to last until 15 November 2011.
On the morning of the interview, 15 October 2010, a letter had arrived for the claimant from Occupational Health requesting her to attend a forthcoming appointment. The claimant initially made the case that the effect of receipt of this letter had impacted upon her performance at interview, in that she did not achieve her maximum potential because of the additional stress it placed her under. However, she somewhat resiled from this in evidence, and accepted that she had just not done a good interview on that occasion. |
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4. |
(i) |
On 19 November 2010, after the claimant had been told she had been unsuccessful at interview, her husband phoned Ms Taggart, the Community Development Manager. He did not complain about the fact that she had been rejected or the interview process or its results, but about the fact that no one from her Department had been in touch to see how she was feeling. He also commented on the fact that his wife had apparently been deemed suitable to act up over a 10 year period, but now after a 20 minute interview had apparently been deemed unsuitable, and what he perceived as the incongruity of this situation. He went on to say that he had the names of all the Councillors on the Development Committee and that he intended to let them all know how the Council had dealt with his wife, who he believed was a very valuable employee.
According to Mr Workman, Catherine Taggart commented:- |
“You know Sandra has already taken a grievance against us and she lobbied councillors for her job.”
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Mrs Taggart recollects that at that time Mr Workman accused her of alleging that his wife had lobbied for her post. Her evidence is that was not the case and she assured him of this. She did not recollect making any remark about a grievance. She was aware that the claimant had taken a grievance (indeed Mr Workman had sent her a copy of it) but she would not have discussed it as dealing with it was a matter for Human Resources, not for her. |
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(ii) |
It is this conversation which gives rise to the claimant’s allegation of direct discrimination and victimisation. However, as far as the former is concerned, the conversation did not relate to the disability, or the claimant’s disability, in
any way. More generally, it seems to us that Mr Workman made this call at a time when he was – understandably – very upset and that this may well have influenced his recollection, or his understanding of what Mrs Taggart was saying. We therefore prefer, and accept, her account of the conversation. |
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5. |
(i) |
On 1 January 2011, the claimant was due to return to her substantive post of Community Development Assistant (now termed Assistant Community Development Officer) after acting-up for the best part of 10 years. She is critical of Belfast City Council’s policy; or, from her view, lack of policy on acting-up. It does seem to us strange and somewhat unsatisfactory that someone can act up for almost 10 years. However, such an unsatisfactory policy does not inevitably lead to an inference of disability, or any other form of proscribed, discrimination, and we are satisfied in any event that it was at all times made clear to the claimant that she would have to return to her substantive post when her period of secondment was over.
On her return the claimant was also to move to another location, on reduced hours. It was only at that stage that advice was sought on her ability to perform her substantive post. The respondent accepted that reasonable adjustments were required. In December 2010, prior to returning to her post, the claimant had attended Occupational Health. As a result of the report from Occupational Health, extensive support was provided to the claimant when she went back to work, including an additional Assistant Community Development Officer for two weekly sessions, a tutor to supervise an evening session, and transport when required. However, the respondent was not in a position to sustain that level of support indefinitely and no adjustment was provided which would have meant that the claimant was able to carry out the duties of her substantive post. |
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(ii) |
Before the respondent could give further consideration to the matter, for example by looking at the possibility of medical redeployment for the claimant, she succeeded in obtaining another temporary promotion at Community Development Officer level (broadly equivalent to the Community Development Worker post in which she had acted up for 10 years).
She took up this post with effect from 23 May 2011, and remained in it at the time of hearing.
Significantly, in our view, she was appointed to it following a successful interview. |
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6. |
(i) |
The relevant law is found in the Disability Discrimination Act 1995, as amended by the Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004.
Section 3A(5) of the Act prohibits direct discrimination. It provides:- |
“A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances,
including his abilities, are the same as, or not materially different from, those of the disabled person.”
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(ii) |
Direct disability therefore occurs where the person’s disability is the reason for the alleged less favourable treatment. It cannot be justified.
As far as the comparator in a direct disability discrimination case is concerned, the appropriate comparator is someone who is not disabled, or who did not have the same disability as a claimant. See : London Borough of Lewisham v Malcolm [2008] IRLR 701 and the Disability Code of Practice (Employment and Occupation) paragraphs 4.8 and 4.13. |
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7. |
(i) |
Section 4A of the Act deals with the duty to make reasonable adjustments. |
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A failure to make a reasonable adjustment is not capable of being justified.
The factors to be taken into account by a court or tribunal 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 a reasonable adjustment and a non-exhaustive list of examples of reasonable adjustments are set out at Section 18B of the Act, and we do not repeat them here. Whether something is a reasonable adjustment is for tribunal to decide, objectively, on the facts of the particular case. (See : Smith v Churchill Stairlifts PLC [2006] IRLR 41 CA.)
Also, the making of a reasonable adjustment does not lead to the situation where everything remains the same for a claimant. Taylor v Dumfries & Galloway CAS [2007] SLT 425.)
The duty to make reasonable adjustments, which applies to dismissal, is extremely wide in scope. This is clear from the judgment of Baroness Hale in Archibald v Fife Council [2004] IRLR 65. |
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(ii) |
Archibald was a case concerning the position under the legislation of a disabled employer who had become incapable of doing the job for which she had been employed, but who could have done another job in the same organisation. Baroness Hall, discussing the transfer provision set out at Section 18B(2)(c), stated at p 660:- |
“Section 18B(2)(c) merely refers to ‘an existing vacancy’. It does not qualify this by words such as ‘at the same or a lower grade’. It does refer to ‘transferring’ rather than ‘promoting’ her, but as a matter of language a transfer can be upwards as well as sideways or downwards.”
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Notwithstanding the width of this provision, it is clear that the duty to make a reasonable adjustment is not limitless. At p 659, Baroness Hale stated:- |
“It is … common ground that employers are only required to take those steps which in all the circumstances it is reasonable for them to have to take. Once triggered, the scope of the duty is determined by
what is reasonable, considered in the light of the factors set out in Schedule 6(4) …
… There is no positive duty other than addressing the impact of the disability on her ability to do a job which she is otherwise well-fitted to do. This duty cannot arise where the disability means that she cannot do the job at all and there are no adjustments to the arrangements for that job which can make any difference.”
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The duty to make reasonable adjustments does not require the respondent to create a role that is not necessary for the business. See Tarbuck v Sainsburys Supermarkets Ltd [2006] IRLR 664 (EAT) and Chief Constable of South Yorkshire v Jelic [UKEAT/0491/04]. |
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(iii) |
Regard must also be had to the guidance given to tribunals in Environment Agency v Rowan [2008] IRLR 20 (EAT) where His Honour Judge Serota stated, at paragraph 27, that a tribunal considering a claim that an employer has failed to make a reasonable adjustment 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
(c) the identify of non-disabled comparators (where appropriate); and
(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.”
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He continued:- |
“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, placing the disabled person concerned at a substantial disadvantage.”
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In
Tarbuck v Sainsburys Supermarkets Ltd [2006] IRLR 664 (EAT),
Elias J, as he then was, held that there was no separate and distinct
duty on an employer or other person to consult with a disabled person, while
emphasising that it will always be good practice to do so, and that failure
to do so may jeopardise a respondent’s legal position. The question for the
tribunal is an objective one, namely has the employer complied with its |
8. Section 55 of the 1995 Act, in common with all other anti-discrimination legislation, outlaws victimisation where the employee has performed a protected act, in this case the bringing of proceedings before a tribunal. The claimant must identify an appropriate comparator, and the doing of the protected act must be the cause of the less favourable treatment. The appropriate comparison is between the claimant and someone who had not done a protected act. See : Chief Constable of West Yorkshire Police v Khan [2007] ICR 2065 HL.
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(i) |
Section 17A(1C) sets out the burden of proof in disability discrimination claims. Following the now common formula in legislation outlawing other forms of discrimination, it provides as follows:- |
“Where, on the hearing of a complaint, under sub-section (1), the complainant proves facts from which the tribunal could, apart from this sub-section, conclude in the absence of a adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves he did not so act.”
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In Igen Ltd (formerly Leeds Careers Guidance) and Others v Wong; Chamberlain Solicitors and Another v Emokpae; and Brunel University v Webster [2005] IRLR 258, the Court of Appeal in England and Wales has set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race, and disability discrimination. This guidance is now set out in full at an Annex to the judgment in the Igen case. We therefore do not set out again in full, but have taken it fully into account.
In short, the claimant must prove facts from which
the tribunal could conclude in the absence of an adequate explanation that
the respondent has
If the claimant does prove facts from which the
tribunal could conclude in the absence of an adequate explanation from the
respondent that the latter has committed an unlawful act of discrimination,
then the burden of proof moves
Although the above logically establishes a two-stage process, it is not to be applied slavishly or mechanically, and in deciding whether the claimant has made out a prima facie case the tribunal must put to one side the employer’s explanation for the treatment, but should take into account all other evidence, including evidence from the employer. (See : Laing v Manchester City Council [2006] IRLR 748 EAT; Madarassy v Nomura International Ltd [2007] IRLR 246; and Arthur v Northern Ireland Housing Executive and Anor [20070] NICA 25.) |
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These cases were considered more recently by HM Court of Appeal in Northern Ireland in Curley v Chief Constable of the Police Service of Northern Ireland and Anor [2009] NICA 8 and Nelson v Newry & Mourne District Council [2009] NICA 24.
In the former, Coughlin LJ at paragraph 16 of his judgment emphasised the need for tribunals hearing cases of this nature to keep firmly in mind that such claims are grounded upon an allegation of discrimination (in that case religious discrimination). This was re-emphasised by Girvan LJ at paragraph 24 of the judgment in the latter case. |
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More specifically, in relation to the duty to make reasonable adjustments, the burden of proof was considered in Project Management Institute v Latif [2007] IRLR 579. In Harvey on Industrial Relations and Employment Law, the position is summarised as follows:- |
“… [T]he EAT held that a claimant must prove both that the duty has
arisen, and also that it has been breached, before the burden will shift, and
require the respondent to prove that 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; in fact it is permissible … for claimants to propose reasonable
adjustments on which they wished to rely at any time up to and concluding the …
hearing itself.”
10. Having found the facts as set out above, and applying the relevant law to them, we reach the following conclusions:-
(i) As far as the claimant’s claims of direct disability discrimination and victimisation are concerned, we find that overall the evidence in respect of these is weak. The former relates principally to Ms Taggart’s telephone conversation with the claimant’s husband and as we have found at paragraph 4(ii) above, it did not relate to the claimant’s disability in any way. Equally, there was not anything in this conversation which seems to us indicative of victimisation of the claimant by the respondent. We also do not accept that the decision to put the claimant back in her substantive post with effect from January 2011 was in any way related to the grievance she had made. As stated, we are satisfied that it had always been made clear to her that she would return to her substantive post at the end of her period of secondment. The fact that she proceeded to act up again a short time later does not seem to us, in any event, to be consistent with victimisation by the respondent.
(ii) We therefore dismiss the claimant’s claims of direct discrimination and victimisation.
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(i) |
We now turn to the claimant’s claim of a failure to make reasonable adjustments.
The
reasonable adjustment which the claimant contends that the respondent should
have made was that it should have made her permanent in the new post of
Community Development Officer (broadly equivalent to the |
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(ii) |
It
is clear that the claimant was unable to carry out the duties of her
substantive post (Community Development Assistant/Assistant Community
Development Officer), and that at the time of the proposed restructuring and
re-organisation of the respondent’s Community Development Department, no
assessment was made of the claimant and there was no consultation with |
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(iii) |
As against this we bear in mind that the question for the tribunal is whether, objectively, the respondent has complied with its duty to make reasonable adjustments. In this case we are not satisfied that the claimant has proved to our satisfaction that her disability impinged on her ability to go through a recruitment process involving an interview and that she was placed at a substantial disadvantage by the interview. Her evidence in this respect is somewhat weak. She was someone with managerial experience, who had had training in interviews. She had taken part in other interviews, and her latest, current, acting-up post was attained after interview. It seems to us that there is an element of complaining after the event.
In this case there was no risk of the claimant losing her employment if she were not made permanent in her promoted post. She is now acting-up again, and if and when she ultimately goes back to her substantive Grade 4 post, that will be the appropriate time to consider reasonable adjustments in the context of that post. As we have indicated, the respondent, because of the size of its organisation, has always been able to redeploy staff at Grade 4 where the person concerned is unable to fulfil the duties of his or her post.
In these circumstances, we also dismiss the claimant’s claim in respect of the failure to make reasonable adjustments. |
12. In conclusion, we feel we must state that we do not consider it to be a satisfactory state of affairs that an employee in a public authority should act up almost continuously for a period just short of 10 years. It is hardly surprising that the claimant came to see herself as, in effect, permanently employed at the higher grade.
Chairman:
Date and place of hearing: 1 – 2 September 2011, Belfast
Date decision recorded in register and issued to parties:
ANNEX A
THE
INDUSTRIAL TRIBUNALS
CASE MANAGEMENT DISCUSSION
CASE REF: 371/11
CLAIMANT: Alexandra Maree Workman
RESPONDENT: Belfast City Council
DATE OF HEARING: 19 May 2011
REPRESENTATIVES OF PARTIES:
CLAIMANT BY: . Mr B Mckee, Barrister-at-Law, instructed by John Boston and Company Solicitors.
RESPONDENT BY: Mr M McEvoy, Barrister-at-Law, instructed by the Director of Legal Services, Belfast City Council.
Record of Proceedings
1. The purpose of the Case. Management Discussion was to:-
(1) identify the precise
issues which the tribunal has to consider;
(2) consider the use of
witness statements and their exchange; and
(3) agree dates for a hearing.
A Issues
The precise legal and main factual issues in the case were identified at the CMD and are attached to this record of proceedings.
B Interlocutory Matters
The parties agreed to serve
notices for additional information and documentation on
each other by 2 June 2011 and to respond to any such notices by 16 June 2011.
C Preliminary Issues
There were no preliminary issues identified.
D Orders
In accordance with Rule 10(1) of
the Industrial Tribunals Rules of Procedure 2005, I
make the following orders, by consent:-
1 Witness Statements
(a) The parties will agree a list of
the persons who are relevant to the claim(s) indicating, if necessary in chart
form, their job title and position in the
line management structure, together with an agreed chronology of events. Those
documents will be lodged by the claimant/respondent in the Office of
the Tribunals by 5.00 pm on 14 July 2011.
(b) The claimant and any witness he
wishes to call must provide a
witness statement to the respondent/respondent’s representative
by 5.00 pm on 16 June 2011.
(c) The respondent and any witness it
wishes to call must provide a
witness statement to the claimant/claimant’s representative by 14 July
2011.
(d) If the claimant or any of his
witnesses wishes to respond to any evidence
given in the respondent’s witness statements, he must provide a
supplementary witness statement to the
respondent/respondent’s representative by 5.00 pm on 21 July 2011.
(e) A witness statement must be a
complete statement of the evidence relating to the issues, in respect of both
liability and remedy, in the
case, that the witness wishes to give to the tribunal. A witness will
not be permitted to add to his statement without the consent of the tribunal.
Consent will only be given where there is good reason for
doing so.
Witness statements should
commence with an introductory paragraph which identifies the witness and
explains the relevance of the witness
to the claim, eg claimant, line manager, member of interview panel,
etc.
The statement should then use the
factual issues agreed at Paragraph
A above and set out the witnesses’ evidence in relation to each factual issue
chronogically. The witness statement should finish with a short summary
paragraph.
(f) Witness statements will be read
aloud to the tribunal, subject to the
discretion of the tribunal hearing the case. The parties agreed to this as a
course of action given the adverse experience of one of the representatives
in a case which ran with the witness statements taken as read.
(g) Witness statements will not be read by the
tribunal prior to the
commencement of the hearing.
2. Schedule of Loss
The claimant must provide to the respondent/respondent’s representative
a
schedule of all financial loss claimed by the claimant, setting out in
particular the nature and amount of any such loss claimed and how that sum is
made up,
by 5.00 pm on 14 July 2011.
3. Bundles
An agreed bundle of all relevant documents along with three copies of a
separate folder containing the witness statements, must be lodged in the Office
of the
Tribunals by 23 August 2011. Any documents referred to in the witness
statements must be identified by page number in the bundle. Three further sets
of
the bundle and of the witness statement folder must be brought to the Office of
the Tribunals not later than 9.30 am on the first day of the hearing:
(a)
the bundle must
contain only those documents which are necessary
for the tribunal to hear and determine the claim. The bundle is not
meant to contain all documentation which has been disclosed
between the parties, documents should appear only once in the
bundle;
(b)
the bundle must
contain a detailed index and each page in the
bundle must be clearly and consecutively numbered;
(c) each document must appear in chronological sequence.
4. Date of Hearing
The hearing will be from 30 August to 2
September 2011. Both counsel
indicated that the case will finish within that time period.
5. Other Matters
The claimant’s claim form was typed in a
font size which was so small that it made
it very difficult to read. I directed that the claimant provide a typed up copy
of
pages 11 and 12 of the claim form in a legible font size (le size 10 or 12) and
that
that should be lodged in the Office of the Tribunals by 2 June 2011.
Chairman:
Date: May 2011
Notice
1. If
any party fails and/or is unable to comply with any of the above Orders, any
application arising out of such failure or inability to comply must be made
promptly to the tribunal and in accordance with the Industrial Tribunals Rules
of Procedure 2005.
2. Failure to comply with any of these Orders may result in a Costs Order or a Preparation Time Order or a Wasted Costs Order or an Order that the whole or part of the claim, or as the case may be, the response may be struck out and, where appropriate, the respondent may be debarred from responding to the claim altogether.
3.
Under Article
9(4) of the Industrial Tribunals (Northern Ireland) Order 1996, any person who, without reasonable excuse,
fails to comply with a requirement to
grant discovery and inspection of documents under Rule 10(2)(d) of the
Industrial Tribunals Rules of Procedure 2005 shall be liable on summary
conviction to a fine not exceeding Level 3 on the standard scale - £1,000 at
3 September 2007, but subject to alteration from time to time.
4. A party may apply to the tribunal to vary or revoke any of the above Orders in accordance with the Industrial Tribunals Rules of Procedure 2005.
IN THE INDUSTRIAL TRIBUNALS
INDUSTRIAL TRIBUNAL RULES OF PROCEDURE 2005
Case number
Between
Alexandra Workman
CLAIMANT
and
Belfast City Council
RESPONDENT
Legal and Factual Issues
LEGAL ISSUES
1. Did the respondent impose a provision which placed the
complainant at a
substantial disadvantage in comparison with persons who are not disabled?
(a) Categorising the claimant’s current position as Community Development Worker (held for over g years) as “acting up”
(b) Removing the position of Community Development Worker held by the Claimant in or around June 2010
(c) Placing the claimant as a Community Development Assistant
when her
disability meant that she could not perform all the duties of that post
(d) Failing to consider or make any adjustment to the duties
of the post of
Community Development Assistant such that the claimant could carry
out the role
(e) Refusing the claimant’s request to be retained in her
position of
Community Development Worker
(f) Advertising for the post 9f Community Development Worker
when the
respondent should have placed the claimant in that post
2. Did the respondent know or ought the respondent to have known that the claimant was likely to be placed at a substantial disadvantage in comparison with others who were not disabled by the provisions set out at 3 above, as required by section 4A(3)(b)?
3. Did the respondent take such steps as it is reasonable in all the circumstances of the case for it to take in order to prevent the provision, criterion or practice having that effect?
(a) Making the claimant’s position as Community Development Worker permanent
(b) Excluding or ring-fencing the claimant’s position from the recruitment exercise
(c) Removing the duties of Community Development Assistant which the claimant was unable to perform for reasons related to her disability
(d) Re-allocating to another worker the duties of Community Development Assistant which the claimant was unable to perform for reasons related to her disability
4. Whether the respondent dismissed the claimant from the post of Community Development Worker unfairly.
5. Was the claimant’s written grievance dated 8th July 2010 a protected act?
6. Did the Catherine Taggart, an employee of the respondent discriminate against the claimant by subjecting the complainant to a detriment contrary to section 4(2)(d) of the Disability Discrimination Act 1995 and/or subject her to victimisation ?
7. What injury to feelings did the claimant suffer as a result of any act of alleged discrimination?
8. What loss of earnings, pension or other benefits did the claimant suffer as a result of any act of alleged discrimination?
FACTUAL ISSUES
Background
1 Did the claimant work in the role of Community Development Worker for approximately 8 years?
2 Did the respondent have any policy relating to the job status of employees who acted up into a position?
3 Did the respondent remove the duties and responsibilities of Community Development Worker form the claimant?
a. Did the respondent take into consideration the claimant disability when doing so?
b. What matters were taken into consideration?
4 Did the claimant request that the respondent retain her in the role of carrying out the duties of Community Development Worker?
5 Did the respondent refuse to retain the claimant in the role of carrying out the duties of Community Development Worker?
6 Did the respondent require the claimant to carry out the duties of a community development assistant?
a. Did the respondent consider the claimant’s disability affected her ability to carry out these duties?
b. Was a risk assessment carried out?
7. What step should the respondent have taken?
8. To what extent would that step have prevented the effect?
9. How practicable was it for the respondent to take the step?
10. Row much would it have cost the respondent to
a. Retain the claimant in her rote carrying out the duties of Community Development Worker?
b. Remove or reallocate the duties of Community Development Assistant which the claimant could not carry out
11. What arc the financial resources of the respondent?
12. Were the financial resources available to the respondent to take the steps set out above?
13. What is the nature of the respondent’s activities and the size of the respondent’s undertaking?
14. Did Catherine Taggart in a conversation with the claimant’s husband
a. accuse the claimant of acting improperly by allegedly lobbying a councillor?
b. Make reference to the claimant’s existing grievance which related to disability?
c. Was the councillor a disability champion?
d. Did the claimant speak to the councillor in her capacity as a disability champion?