Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/00448_11IT.html
Cite as: [2012] NIIT 448_11IT, [2012] NIIT 00448_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 448/11

1141/11

CLAIMANT: John Winchester

RESPONDENT: Irish Waste Services Limited

DECISION

The unanimous decision of the tribunal is as follows:-

1. The claimant was disabled as defined by the Disability Discrimination Act 1995, as amended.

2. The respondent did not fail to comply with the duty to make reasonable adjustments.

3. The dismissal of the claimant by the respondent was not discriminatory on the grounds of disability.

4. The claimant was not unfairly dismissed by the respondent.

5. Accordingly, the claimant’s claims are dismissed, without further Order.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Mr J McAuley

Mrs A Gribben

Appearances:

The claimant attended the hearing and represented himself.

The respondent was represented by Mr Sheridan of Peninsula Business Services Ltd, assisted by Mrs Sheridan.

REASONS

1. The claimant’s claims in this matter were of unfair dismissal and disability discrimination. These claims were set forth in a claim form dated 1 February 2011, received by the Office of Tribunals on 2 February 2011. By response dated 10 March 2011 and received by the Office of Tribunals on that date, the respondent denied unfair dismissal and disability discrimination. At a case management discussion held on 24 August 2011, the legal and main factual issues in the case were identified to be as follows: -

1.1 Was the claimant disabled as defined by the Disability Discrimination Act 1995, as amended?

1.2 If so, did the respondent fail to comply with the duty to make reasonable adjustments?

1.3 Was the dismissal of the claimant discriminatory on the grounds of disability?

1.4 Was the claimant unfairly dismissed?

1.5 What remedy was the claimant entitled to?

The tribunal accepted, with consent of the parties, that these issues were the specific issues requiring to be determined by the tribunal.

2. The tribunal received in evidence an agreed bundle of documents. This bundle included the witness statements of the claimant and of the respondent’s witnesses, Finbarr Gallagher and Jason McPoland. In the course of the hearing an issue emerged concerning a risk assessment and a copy of a document relating to this was introduced in evidence by the respondent, without objection from the claimant. Also in the course of the hearing it was agreed between the respective parties that the tribunal’s determination would be confined to liability only; it was agreed that the matter of remedy, if it arose after determination of liability, was to be addressed at a further hearing.

THE TRIBUNALS FINDINGS OF FACT

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

3.1 The respondent company is engaged in the waste management services industry. The respondent conducts operations from business premises located at Hillsborough Road, Carryduff, County Down and also from premises situated at Duncrue Industrial Estate, Belfast. The claimant’s employment with the respondent commenced on 7 April 2008. The claimant was employed as a technical operative. The claimant’s job functions included operating what is known as “jet vac” equipment and assisting with the removal and transportation of waste products and the operation and maintenance of associated equipment to carry out these functions. The job functions required a moderate degree of physical fitness and capacity.

3.2 On 29 May 2008, the claimant was unfortunate to sustain an injury at work. It appears that he fell from the back of a jet vac lorry, trapping his foot and sustaining a twisting injury. This was reported to have resulted in a compound fracture of his left tibia and also a chipped fracture to the heel of his left foot. The claimant was conveyed to hospital and attempts were made to stabilise the fracture. There were particular complications with the healing process and the claimant was transferred from Craigavon Area Hospital to Musgrave Park Hospital in Belfast for the further treatment. Such treatment included the fitting of a device to permit the fracture successfully to be treated. The fracture appears to have healed to a reasonably satisfactory extent after a further period of time. The claimant required the aid of crutches as a result of the forgoing. He apparently ceased to require crutches to aid mobility by September 2009.

3.3 In regard to the assessment of the claimant’s recovery from these injuries and the progress in respect of this, the respondent arranged for the claimant to be medically examined and this medical examination was conducted in September 2010 by Dr David Mills. The tribunal had sight of a report from Dr Mills which was included within the bundle of agreed documents and that will be referred to further below. Whilst absent from work, notwithstanding the fact that the claimant’s contractual terms provided for statutory sick pay only, the respondent paid the claimant full wages for the first twelve weeks of the claimant's period of sickness absence from work; thereafter matters reverted to statutory sick pay. The claimant remained on long-term sick leave after the occurrence of the injury.

3.4 In April 2010, the claimant initiated contact with the respondent. He telephoned Finbarr Gallagher, who was the respondent’s service manager, in order to discuss the possibility of a return to work. During the initial telephone conversation between the claimant and Finbarr Gallagher, the latter made clear to the claimant that the respondent needed to identify what work the claimant was capable of carrying out, if there were to be explored the possibility of a suitable return to work. A meeting was then arranged to discuss possible return to work.

3.5 The claimant attended what the respondent described at the time as being an “informal welfare meeting” on 22 April 2010. The tribunal was provided in evidence with and inspected a copy of the written note of a meeting with the claimant completed by Finbarr Gallagher and dated 22 April 2010. The written record of that meeting, which was not generally challenged by the claimant as to accuracy or content (save to the extent mentioned below), records that the claimant explained to Finbarr Gallagher that he had been walking without aids for several months and that his physiotherapy had finished some 8 to 9 months before that time. The claimant stated to Finbarr Gallagher that he did still walk with a slight limp but that he walked regularly anything up to 4 miles, only taking a couple of breaks in doing so. Finbarr Gallagher expressed concern that any return to work might jeopardise the claimant’s proper recovery from the injury. He also expressed concern that the claimant might work in any high-risk areas, including the respondent’s waste treatment plant, that plant being located at Duncrue Industrial Estate, Belfast (“Duncrue”). Finbarr Gallagher suggested that light duties at the respondent’s Carryduff premises (“Carryduff”) might be best suited to the claimant’s initial return. He identified various duties that he suggested might require to be undertaken at Carryduff.

3.6 Although the claimant endeavoured to challenge the accuracy of a part of the content of the note of the meeting of 22 April 2010, the tribunal, examining the cogency and the weight of the evidence, determines that Finbarr Gallagher’s evidence generally, and specifically his evidence in respect of what he stated to be a contemporaneous note taken at the time of the meeting, is credible and consistent with the facts. For this reason, the tribunal accepts that the said note constitutes an accurate record of the meeting which took place on 22 April 2010. Also on that day the claimant provided his written consent to a medical report being obtained by the respondent. On 26 April 2010 the respondent wrote to the claimant’s General Practitioner, Dr McClean, setting forth specific questions requiring to be addressed by the Doctor. In doing so, the respondent specifically identified certain duties which it was anticipated the claimant might be able to perform at the Carryduff premises, subject to medical confirmation. In respect of such duties, the respondent had devised a job description in respect of a particular job function, identified as being a “yard operator”. The functions of such post were, in the documentation supplied to the Doctor, contrasted with those of a “jet vac” operator, that being the post which the claimant had held at the time that he sustained the injuries, and both job descriptions were provided.

3.7 Dr McClean replied to the respondent indicating that he was insufficiently qualified to provide the detailed opinion that had been requested. In September 2010, the respondent retained the services of Dr David Mills, an Accredited Specialist in Occupational Medicine. Dr Mills proceeded to examine the claimant on 24 September 2010 and the Doctor produced a written report on that date. It appears that, for some reason which is not quite apparent to the tribunal, Dr Mills was not briefed with the same detail and documentation that had been earlier provided to Dr McClean.

3.8 In his report produced after examination of the claimant, Dr Mills recorded that there were no specific referral papers which had been sent to him, nor were any specific questions asked. It was evidently unclear to Dr Mills what length of time the claimant had been absent from work, as this was not indicated in the instruction. The claimant himself was stated by Dr Mills to perhaps have had an imprecise memory of dates. However the Doctor estimated that the claimant had been absent from work since April 2008 (the injury indeed had occurred on 29 May 2008). Dr Mills noted that the claimant reported that he had been off crutches for approximately one year at the time of the examination. The claimant reported to Dr Mills that he still got pain in his lower back and pain around the fracture site of his left lower leg. The claimant further reported to Dr Mills that he had contacted his manager to try and return to work and initially he had thought that he might get redeployed to perform light duties within the Belfast yard (ie, Duncrue) but unfortunately it seemed that the respondent was unable to accommodate this.

3.9 The claimant reported to the Doctor that he had difficulty in travel at present; if he were to be based in Carryduff he would have had to take two buses and to walk a considerable distance before he got to the respondent’s premises. The claimant stated that in regard to the Belfast premises (Duncrue) the bus stop was quite close and the walk involved was quite short. Upon physical examination, the Doctor recorded that the claimant had a slight limitation of his back movement but that there was no evidence of nerve root entrapment. The report records that the claimant’s right heel had a fairly normal range of movement. It states that on the right leg the scars of the claimant’s injury were clearly present but that the fracture was well healed. (Here, the tribunal indeed had some difficulty in understanding these references in the Doctor’s report. This is so for the reason that it is understood that the most serious and principal injury the claimant suffered was to the left tibia, not to the right leg; this is presumably an error on the Doctor’s part). The Doctor’s report continues that the claimant had some discomfort in pressure around the lower leg, especially around the fracture site. The left leg had an almost full range of movement, being just short of full flexion upwards of the ankle about 10 degrees.

3.10 Looking at all of this, the only plausible interpretation that the tribunal can place upon this aspect of the Doctor’s report is that the Doctor meant to record all of these observations in respect of the left leg, not the right leg. The tribunal is unaware from any of the evidence in the case that there were any injuries of significance sustained to the claimant’s right leg. Thus the report can only be properly read with this latter interpretation placed upon it. In respect of the Doctor’s opinion and prognosis, Dr Mills was of the opinion that the claimant remained unfit for the full duties of his (previous) post. This was so primarily because of the claimant’s residual difficulty with steps and ladders and climbing, which function the Doctor understood would be required in that post. The Doctor did however express the opinion that the claimant would be fit to return to work with adjusted duties. He did not think the claimant could manage heavy manual handling, but certainly light or moderately heavy work would be manageable, he felt. Dr Mills expressed the view that the claimant would have difficulty with frequent use of ladders, stairs or steps. The Doctor also recorded in his report that there was a travel to work issue. He expressed the opinion that on a practical basis it seemed unlikely that the claimant could manage to attend Carryduff due to the longer walking distance. In terms of the prognosis, it appeared to Doctor Mills, from the claimant’s history, that the claimant was now more than two years post-injury and the Doctor thought that his level of disability was fairly stable at present, although he might yet gain some further mobility in the left leg when he became more active. The Doctor expressed the view that, in terms of the Disability Discrimination Act, he would expect that the claimant would come under this legislation as he now had a chronic recognised medical condition and that there did remain impairment of the claimant's mobility.

3.11 By letter of 26 October 2010, the respondent’s personnel officer, Rachel Mulgrew, wrote to the claimant requesting his attendance at a medical capability meeting. This meeting was arranged for 3 November 2010. A copy of the report from Dr Mills was enclosed with the letter of invitation issued to the claimant to attend the meeting. It was indicated in the letter that it was to be explored whether any reasonable adjustments could be made to the claimant’s job that would facilitate a return to work and if there was any alternative employment available that would be suitable to the claimant. It was stated expressly in the letter that if there was little likelihood of a return to work within a reasonable timescale and if there were no reasonable adjustments that could be made or alternative employment available, then the outcome might be the termination of the claimant’s employment on the grounds of ill health. The claimant was invited to present any information which he wished and to make that available to the meeting. The claimant was advised of his entitlement, if he wished, to be accompanied by a fellow employee or a trade union representative.

3.12 The meeting duly took place on Wednesday 3 November 2010, and was attended by the claimant, by Finbarr Gallagher and by Rachel Mulgrew. At the outset of the meeting, the claimant was invited by Finbarr Gallagher to comment upon the occupational health report from Dr Mills. The claimant confirmed that he agreed the content of the report. Finbarr Gallagher made clear that due to the nature of the heavy work of a jet vac operator, the previous post would not be suitable for the claimant. The claimant stated that he thought that he could return to light duties. There then followed a discussion about any work that might be available at the Duncrue premises. Finbarr Gallagher stated that he was concerned that the leg injury might put the claimant at a higher risk of slipping and hurting himself. In the course of the meeting Rachel Mulgrew referred to a risk assessment that had been carried out and to specific scoring in respect of the claimant and any assessed risk arising emerging from that risk assessment which had been conducted by the respondent. A copy of this risk assessment report was introduced into evidence and was inspected by the tribunal. The tribunal noted the references in that report to the risk scoring emerging from the assessment and to the manner in which this was set forth in the report documentation in regard to various risk-assessed categories of activity.

3.13 When, at the meeting of 3 November 2010, the discussion turned to the possibility of the claimant working at the Carryduff premises, the claimant stated that he was not happy to walk up the hill to the Carryduff premises, as there was no footpath. Finbarr Gallagher pointed out to the claimant that the main activities at Carryduff consisted of administration and garage work. Finbarr Gallagher invited the claimant to comment upon what the claimant might have seen as being a suitable role for him at Carryduff. The claimant’s response was that he did not know. The claimant confirmed that he had no skills in computers and that he had never been employed in garage work. In summarising the meeting, Finbarr Gallagher stated that it was agreed that the jet vac work was not an option due to the heavy nature of the job function. The claimant agreed with that suggestion.

3.14 Finbarr Gallagher then stated that any work available at the Duncrue premises was not suitable. When the conversation at this part of the meeting then turned to Carryduff, Finbarr Gallagher accepted that there were certain difficulties in the claimant walking to the premises. However, he also stated that there were currently no job options at Carryduff. When asked to explain that latter remark in the course of his evidence to the tribunal, the explanation provided to the tribunal (both by Finbarr Gallagher and also indeed by Jason McPoland, the latter being the respondent's managing director) was that whilst there had been a job description prepared in April 2010 concerning a possible post at the Carryduff premises, the financial situation of the respondent did not permit the creation of a specific post at that point in time (late 2010) in Carryduff. This was accordingly not a viable option. It is clear from the written minutes of the meeting that the claimant was quite determined to press the respondent for a specific post to be arranged for him at Duncrue. However, Finbarr Gallagher explained in his evidence and indeed in some detail, the difficulties as far as the respondent was concerned both in terms of the health and safety concerns and also in regard to other issues in the creation of such a post at Duncrue. The meeting was adjourned at that point. The meeting then reconvened a little while later and Finbarr Gallagher indicated to the claimant that he required some more time to make a decision in the matter.

3.15 By letter dated 8 November 2010, Finbarr Gallagher wrote to the claimant, referring to the meeting which had been held on 3 November 2010 and to the discussions concerning the medical report of Dr Mills. Finbarr Gallagher recorded in his letter that there had been discussions concerning the possibility of reasonable adjustments to facilitate a return to work on the claimant’s part, but that none were found. He also stated that the respondent company had considered the possibility of suitable alternative employment but that there was no work available which would be acceptable to both parties. He continued that, under these circumstances and as the respondent now needed to find a permanent replacement for the claimant, the employment was to be terminated forthwith and the claimant would be paid two weeks’ pay in lieu of notice. The claimant was advised of his right to appeal against the decision to the respondent’s managing director, Jason McPoland, within 7 days. This letter was given to the claimant at a meeting which took place on 11 November 2010. The tribunal inspected the written minute of the meeting whereby the foregoing decision was conveyed to the claimant and the reasons for that decision were provided. The claimant, in response to the information that his employment was to be terminated, stated that he understood and the meeting, at the time, appears to have concluded on what seems to have been a reasonably amicable basis.

3.16 By letter dated 30 November 2010 the claimant wrote to the respondent and he indicated a wish to appeal in relation to the termination of his employment as he believed that the decision was unfair. He was invited to attend an appeal meeting by letter dated 8 December 2010. The appeal took place on 13 December 2010 and was attended by the claimant, by Jason McPoland and by Rachel Mulgrew. The tribunal inspected the written record of that appeal meeting. Notwithstanding the claimant taking issue with the record of that meeting, in part, the tribunal accepts the record to be an accurate written minute of the meeting. To summarise the content of the meeting from the record, Jason McPoland specifically explored with the claimant the unsuitability, as far as the claimant was concerned, of working at Carryduff. Jason McPoland took the view that, as he put it, the claimant had “ruled himself out” of Carryduff because of the distance from the bus stop. The claimant agreed and he stated that working from Carryduff was not practical. There then followed a further discussion concerning working at Duncrue and working with the jet vac equipment. The claimant confirmed that he did not wish to take the risk of getting an injury from this work. The clamant continued to press for light duties work at Duncrue. There then followed some discussions concerning a forklift truck licence (which might have been required for some specific job functions discussed) and also about brushing up the yard and power-washing and in addition concerning functions relating to the operation of the weighbridge. It was discussed that the weighbridge operation required computer skills, which the claimant did not possess. It was also clear that the claimant did not possess a suitable current forklift truck licence of the correct type. At one point in the course of the meeting the claimant stated to Jason McPoland that, in order to facilitate him working at Duncrue, the claimant could himself get a private taxi to work or a bus. In summary, the minutes of the meeting reveal a relatively amicable and quite positive and detailed discussion taking place between Jason McPoland and the claimant concerning what seems to the tribunal to be some quite convincing and active endeavours to explore the various options which might have been available, possibly, to facilitate the claimant’s return to work with the respondent.

3.17 By letter dated 17 December 2010, Jason McPoland wrote to the claimant confirming that his appeal against the outcome of the original decision taken by Finbarr Gallagher had been denied. The original decision to terminate the employment was thus confirmed. Jason McPoland provided reasons for his decision. These reasons included that the claimant had ruled out jet vac operations due to the risks involved and the possibility of hurting his leg again. The claimant had ruled out working at the Carryduff site, due to the longer walking distance. In addition, there were no vacancies or opportunities available at that time at Carryduff. The claimant had stated that he would be available to drive a counter balance forklift but he did not have an appropriate licence and, further, there were no forklift driver positions within the company. The claimant had stated that he would be prepared to operate the weighbridge computer but there were no vacancies or opportunities at that time. There were no other opportunities or vacancies at Duncrue. Jason McPoland further mentioned that the existing staff at Duncrue were on short-time working. On that basis the appeal was confirmed as denied.

THE APPLICABLE LAW

4. The claimant’s claim in this case relates to unlawful discrimination concerning the claimant’s disability and to unfair dismissal. In regard to the disability discrimination claim, the relevant law is contained within the Disability Discrimination Act 1995, as amended (“DDA”). As disability related discrimination was not submitted in the matter, the tribunal is concerned with contentions both of direct disability discrimination and also of failure to make reasonable adjustments. The material provisions of DDA are as follows in relation to the claimant’s claims:-

Direct disability discrimination

DDA Section 3A:-

…

(5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

DDA Section 4:-

…

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

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

…

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

Failure to make reasonable adjustments

DDA Section 3A:-

…

(2) For the purposes of this Part, a person…..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.

DDA Section 4A:-

(1) Where –

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

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice … having that effect.

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

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

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

(b) the identity of non-disabled comparators (where appropriate); and

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

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

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

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

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

In respect of the claimant’s claim for unfair dismissal, The Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer. Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer. It is for the employer under the provisions of Article 130 (1) (a) to show the reason (or, if more than one, the principal reason) for the dismissal. Article 130 (1) (b) states that in addition to the specified (potentially fair) reasons for dismissal that are set out in Article 130 (2), (for example capability, conduct or redundancy) reasons may include some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. The application of the test as to whether the employer acted reasonably or unreasonably in treating the reason as sufficient reason to dismiss the employee is determined in accordance with equity and the substantial merits of the case (see Article 130 (4). The tribunal has therefore to be satisfied both that the reason is substantial and also that the employer has acted reasonably in treating any such substantial reason as sufficient to justify the dismissal. This requires the tribunal to bring to bear an objective assessment of matters and prohibits the tribunal from determining the matter in any way subjectively, by the application of the so-called “band (or range) of reasonable responses” test to the matter (see the judgement of the Court of Appeal in Northern Ireland in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47).

THE TRIBUNAL’S DETERMINATION

5. It has been agreed that the first issue requiring determination is whether or not the claimant was disabled as defined by the Disability Discrimination Act 1995, as amended (“DDA”). The respondent has indeed readily conceded that at the material time this was the case. Therefore that issue may easily be determined by the tribunal to that effect, and the tribunal's finding is that the claimant had a qualifying disability for the statutory purpose. Furthermore, the tribunal has little difficulty in determining that under the circumstances of this case a duty arises to make reasonable adjustments under Section 4A of the DDA. Again, that much has been conceded by the respondent’s representative. The second and the third issues may accordingly be stated as, respectively, whether the respondent failed to comply with the duty to make reasonable adjustments and, in addition, whether the dismissal of the claimant was directly discriminatory on the grounds of the claimant’s disability. The tribunal will, after addressing the discrimination matters, then address the fourth issue, that being the matter of the alleged unfair dismissal.

6. In this case the tribunal has carefully noted the evidence and has fully taken into account the submissions on the part of the claimant and the respondent’s representative. The second issue thus to be determined by the tribunal, in light of the respondent’s concession, is whether there has been a failure on the part of the respondent to make reasonable adjustments upon the basis mentioned above (see Morse v Wiltshire County Council and Environment Agency v Rowan). Given that such a duty is conceded, the tribunal’s focus must be upon the identification of the relevant provision, criterion or practice applied by on behalf of the employer in the matter. The tribunal must also seek to identify the appropriate statutory comparator. Further, the tribunal must identify the nature and extent of any substantial disadvantage stated to have been suffered by the claimant.

7. In the presentation of this case, the tribunal regrettably did not have the benefit of specific and detailed submissions and fully developed arguments in regard to the foregoing matters. Notwithstanding this, the “arrangements” in this matter are relatively easy to define. These arrangements are that the respondent shall provide to the claimant suitable employment, commensurate with the claimant's physical capacity and ability to undertake any such employment. Having identified these arrangements, the tribunal must then move to examine the issue, in the particular circumstances of this case, of whether the claimant was placed at a substantial disadvantage in comparison with any comparator. Again, in the presentation of this case, the tribunal did not have the benefit of any specific comparator being identified for the statutory purpose. In the absence of the expressly stated identification of any named or identified individual, the tribunal is required to identify a comparator. For the required purpose, any such comparator must be a hypothetical person who did not have the claimant’s disability and that is expressly stated in regard to direct disability discrimination in DDA Section 3A (5). The tribunal is then obliged to identify the nature and extent of the substantial disadvantage, if any, that might have been suffered by the claimant in comparison to such a hypothetical person, as comparator.

8. Looking at the nature and extent of the claimant’s disability and the potential for reasonable adjustments by the respondent, here the tribunal sees an employer which took steps to arrange for discussions with the employee in April 2010. At that time, the employer has already conducted a professionally-prepared risk assessment and the employer is in a position, at the meeting, to discuss a risk scoring assessment regarding risks associated with the claimant taking up a post in Duncrue. The employer further, at this time, explores with the claimant the possibility of work being found at Carryduff. The respondent then proceeds in an endeavour to engage the claimant’s own Doctor to provide specified information concerning the possible job duties and requests a medical assessment with a view to assisting in determining whether reasonable adjustments might be made and, if so, what adjustments were appropriate. Regrettably, the General Practitioner is not in a position to assist the respondent and then the services of a specialist consultant, Dr Mills, are engaged by the respondent. However, at this latter time Dr Mills is not provided with the same amount of detail and documentation as earlier had been provided to the General Practitioner. The reason for that is not entirely clear. Nonetheless Dr Mills, as an occupational health physician, is afforded the opportunity to take a full history from the claimant and to conduct a medical examination and assessment. This process also includes conducting an assessment of the claimant’s own views concerning the matter of his possible return to work.

9. Upon receipt of the report from Dr Mills the respondent then arranges for a meeting with the claimant in order to discuss the content of the Doctor’s report. A copy of that report is provided in advance of the meeting to the claimant. It is made clear that the claimant is entitled to be accompanied, but he declines that invitation. Finbarr Gallagher at the meeting which then follows engages in some detailed discussions with the claimant in order to explore the possibility of suitable work being identified. However, it appears from the minutes of the meeting that the claimant desires to work only at Duncrue. The claimant thus suggests that the respondent might be able to arrange light duties work at Duncrue. However, the respondent’s risk assessment and other material factors suggest that that is not feasible and practicable. After further considering the matter and after taking account of the particular difficulties involved in the creation of a specific post at Carryduff (and indeed taking account of the claimant's clearly indicated opposition to working at Carryduff), Finbarr Gallagher then determines that there is no reasonable adjustment that can be made by the respondent under these circumstances. As the claimant cannot be facilitated in a return to work by the application of any reasonable adjustment, as the respondent sees it, there is no alternative available to the respondent but that the employment must properly be terminated. Whilst it is not for the employee to suggest reasonable adjustments, it is clearly the case that both Finbarr Gallagher and the claimant, together it appears both actively and conscientiously applying their minds to the matter, cannot identify and determine that there might be a suitably adjusted post created, consisting of light duties, at Duncrue.

10. When the respondent takes the step of terminating the employment, a proper and fair facility to appeal is provided to the claimant. The time for any appeal is indeed extended to facilitate the claimant in that regard. Jason McPoland then conducts the appeal meeting, affording to the claimant a proper opportunity to present his arguments and to make any suggestions regarding reasonable adjustments that might be contemplated. Again, the claimant is unable to make any suggestions regarding reasonable adjustments, save to refer again to Duncrue. Whilst, again, it is not the claimant’s duty to suggest reasonable adjustments, nonetheless the respondent itself cannot identify anything appropriate, and looks to the claimant to assist. Then Jason McPoland, in summarising the reasons for his refusal to uphold the appeal, indicates that there is no feasible post that can be created at Carryduff, that the claimant himself has difficulties in attendance at the Carryduff site and that the jet vac operation at Duncrue Street is clearly not a possibility for health and safety reasons.

11. The tribunal notes the specific issue of the claimant’s stated difficulty in attending Carryduff and transport. However, the evidence is that the claimant himself did indicate that he had no apparent difficulty in walking up to four miles, some months before (it will be recalled that in the course of the April 2010 meeting, the claimant stated to Finbarr Gallagher that he did still walk with a slight limp but that he walked regularly anything up to four miles, only taking a couple of breaks in doing so). The claimant also made the suggestion that, if he were able to work at Duncrue, he could attend at Duncrue by means of a private taxi. The tribunal heard further evidence that a taxi from the centre of Carryduff town to the respondent’s Carryduff site could cost perhaps only £1.00 per day. Therefore the tribunal had difficulty in seeing how this was a specific obstacle of itself. Examining these matters, the tribunal determines that the respondent reasonably took the view that the claimant effectively had his mind made up to require the respondent to create for him a specific post at Duncrue. The clamant did not wish to attend Carryduff, and reasons other than the claimant’s disability and mobility appear to bear upon that. On balance and examining all of the evidence, it seems to the tribunal that this desire to work at Duncrue related principally to reasons which are unconnected to the disability issue. That being so, the tribunal determines that the “transport issue” as it were, in regard to the potential for suitable work at Carryduff is not a significant or material issue in terms of fulfilment of the reasonable adjustment duty, under all of the circumstances of the matter. Looking at all of the material factors, the tribunal’s determination is that the respondent has not failed in its duty to make reasonable adjustments in this case.

12. In respect of the matter of direct disability discrimination, to determine that in favour of the claimant, the tribunal would require to find that the respondent, on the ground of the claimant’s disability, treated the claimant less favourably than it treated or would treat a person (the necessary hypothetical comparator in the case) not having that particular disability whose relevant circumstances, including his abilities, were the same as, or not materially different from, those of the claimant. The claimant regrettably did not present any specific submission or argument to assist the tribunal in this respect. However, in carrying out the comparison exercise necessary to determine the matter, the tribunal noted the requirement specified that the relevant circumstances, including abilities, must be the same or not materially different from those of the disabled person (see Shamoon v Chief Constable of the Royal Ulster Constabulary mentioned above).

13. Here the hypothetical comparison was, as stated, not made out expressly. It will be recalled that the tribunal must consider whether the less favourable treatment was on the proscribed ground. However, as was observed by Lord Nicholls in Shamoon, “fruitless over analysis” can be avoided by concentrating on the reason why the claimant was treated as he was. The appropriate question regarding treatment accorded is whether it was for the proscribed reason or for some other reason. If the latter, the application fails. Thus in this, as in many cases, the “less favourable treatment” issue cannot be resolved without deciding the “reason why” issue at the same time. The tribunal, under these circumstances, looked to the “reason why” issue in regard to the treatment of the claimant by the respondent. The reason for the dismissal is clearly that the respondent was unable to identify any reasonably adjusted duties which the claimant could carry out at an appropriate work location. In that respect any (non-disabled) hypothetical comparator, whose relevant circumstances were the same or not materially different from those of the claimant for whom appropriate work could not have been found would, in the tribunal’s determination, have been treated in a similar manner and would have been likewise dismissed. The burden of proof under these circumstances is addressed by the determination of the reason why issue in accordance with Shamoon. Accordingly, there was no less favourable treatment by way of direct discrimination on the basis of the comparison. Further, for the purposes of Section 4 (2) of DDA, the respondent would have behaved unlawfully if it had discriminated against the claimant as a disabled person whom it employed by dismissing him. For the same reasons as are stated above, the tribunal’s determination is that the respondent’s conduct was not unlawful in dismissing the claimant under these circumstances. Accordingly, the claimant’s claims of disability discrimination do not succeed and these claims are thus dismissed.

14. Regarding the claimant’s claim for unfair dismissal, the procedure employed by the respondent has been at all times thorough, fair and reasonable. At all stages, the claimant has been properly and fairly invited to meetings. He has been provided with material information and documentation. He has been afforded a fair and reasonable opportunity to state his case. The respondent has identified the reason for dismissal and that is a permissibly fair reason, that being some other substantial reason such as to justify dismissal; the decision to dismiss was taken by the respondent, as was made clear by the respondent’s representative in submissions, not on grounds of capability (as might have potentially been argued) but rather for some other substantial reason. That was for the reason that, having fully and carefully explored work possibilities and options with the claimant, no suitable work could be identified to suit the claimant’s requests and the respondent’s business needs. That remained so after the respondent had endeavoured to address the reasonable adjustments issue and had taken into account heath and safety concerns and other material issues. The so-called “band of reasonable responses” test applies in that regard. Having thus encountered a situation where, very regrettably, an employee who was injured at work was thereafter afforded a lengthy period of time, more than two years, to recover and to recuperate, it became impossible to engage the employee in work which was suitable and which did not expose the employee (or indeed other employees and third parties) to risk, as the respondent saw it. A proper risk assessment was conducted in that regard. That was a reasonable and a proper step for the respondent to take. The decision to dismiss for that reason and under these particular circumstances fell, in the determination of the tribunal, within the band of reasonable responses of a reasonable employer. Under all of the material circumstances of this case, a fair and reasonable decision on the part of the respondent was to terminate the contract of employment. Accordingly, the claim for unfair dismissal is not upheld and this claim is dismissed by the tribunal, without further order.

Chairman:

Date and place of hearing: 5 and 6 December, 2011, Belfast

Date decision recorded in register and issued to parties: