Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/00887_11IT.html
Cite as: [2012] NIIT 887_11IT, [2012] NIIT 00887_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 887/11

CLAIMANT: James Wilton

RESPONDENT: Bombardier Aerospace

DECISION

The unanimous decision of the tribunal is that the claimant was not discriminated against on the grounds of his disability.

Constitution of Tribunal:

Chairman: Mr P Kinney

Members: Mr P McKenna

Mrs C Stewart

Appearances:

The claimant appeared in person and was not represented.

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

Issues

1. This case had been the focus of several Case Management Discussions at which issues had been refined. These issues were:-

(a) Did the respondent make reasonable adjustments for the claimant as required by the 1995 Act?

(b) Did the respondent unlawfully discriminate against the claimant on the ground of his disability or for a disability-related reason in comparison with those employees in the Security Department who were initially placed at the Castlereagh and Crossgar sites and then transferred under TUPE?

2. At the hearing the claimant decided he did not wish to proceed with his claim for direct or disability-related discrimination and was proceeding only on the claim for reasonable adjustments. The claimant was given an opportunity to consider and confirmed this was the course he wished to take. The claimant also identified the reasonable adjustments he required. These were:-

(a) a suitable chair; and

(b) the provision of a car parking space close to his place of work.

The claimant confirmed that there were no other adjustments which he sought or which he thought would be of assistance.

Findings of fact

3. The claimant has worked for the respondent for over 15 years and continues in employment at the time of this hearing. Until March 2010 he was employed as a security officer. He worked in the Communications Unit. His role was largely sedentary. He had no patrolling duties and spent most of his time watching computer screens. The claimant’s disability was accepted by the respondent. He had been the victim of two road traffic accidents, the later one in 2001. He had pain in his lower back and in his ankles. Whilst working in the Communications Unit the claimant had the benefit of car parking beside the office. This was what he described as ‘a perk of the job’ and was available for anyone working in the Communications Unit. There was also in the Communications Unit an operator’s chair. All the security officers working in the Unit had been invited by Mr Briars, the security manager to look at a catalogue to select a chair. The claimant looked at the catalogue and it was the chair he preferred which was chosen. It was a chair that could be adjusted to suit different people and had been chosen by Mr Briars to provide some comfort to the operatives who would spend a lot of time in the chair. It was not specifically for the claimant.

4. By March 2010 the respondent had decided to contract out its in-house security staff. In March 2010 the claimant was approached by Mr Colin Spence, the respondent’s Human Resources Business Partner. He was asked if he wished to try a different job in the factory. The claimant was told that there was a position in the Stores. The claimant accepted this offer. At that time he felt that his condition was under control and indeed he was able to do some DIY work around the house and felt able for the job in Stores. The claimant approached Mr Briars before he left the Security Department, asking about getting a vehicle pass so that he could get his car into the respondent’s site. Mr Briars told the claimant that he would have to make that request of his next manager (Mr John Ritchie) and the Company Doctor (Dr Jenkinson).

5. The claimant started working in the Stores Department as a warehouse operative on Monday 12 April 2010. He made no mention of his requirement for a chair or a car parking space at that time. On Wednesday of that week he did ask the lead hand whether or not there were any chairs and was told there were no chairs in the Stores area. The claimant did not feel, after the first week, that he could continue with his work and went on sick leave. He told the tribunal that this week of work had caused a severe degeneration of his condition.

The claimant had a meeting with Mr Ritchie and Mr Spence in June 2010. An alternative position for the claimant was identified. This involved working in the Advanced Supply Notification (‘ASN’) Project under the management of Mr Stephen Campbell. This was a new Project to create a database of various vendors to the respondent. The claimant’s task, essentially, was to collate information and create the database. He was in a seated position and confirmed in his evidence that physically it was very similar to the role he had played in the Communications Unit. It was not clear at that time how long this project would last. The claimant, however, left on sick leave in September 2010. He complained, at that stage, that the role was only a temporary role and that there was not enough work for him to do. He found that because there was little work to do he tended to dwell on his level of pain as there was no distraction from that pain. The claimant made no request of Mr Campbell for a car parking space or for a different chair. When he saw Dr Jenkinson, the Occupational Health Doctor, on 28 September 2010, Dr Jenkinson recorded that the claimant was off work and the certified reason for absence was stress at work. The claimant had told Dr Jenkinson there was insufficient work to keep him occupied. The claimant expressed doubt as to whether he could return to this work involving prolonged sitting. Dr Jenkinson concluded that the claimant was unfit for any work at that time. There is no mention of a car parking space or any alterations or improvements to a chair.

6. The claimant had a further meeting with Mr Spence and Mr Ritchie in October 2010. The claimant asked that he be returned to the Security Department. He was informed that this was not possible as that function had been outsourced. The claimant then asked for a medical exit. Mr Spence told the claimant that there were options available for him to consider, being early retirement on the grounds of ill-health, medical severance packages, or weeks in lieu of notice. These options were given to the claimant to consider. On 2 December 2010 the claimant had a further meeting with Mr Spence at which a medical severance package was offered. The claimant refused this. The claimant, at this stage, confirmed he was applying for early retirement on the grounds of ill-health and Mr Spence advised him that this was a request that needed to be put in writing to the pension trustees who would make the decision.

7. The claimant requested a return to work in January 2011 and again in February 2011 These requests were not dealt with by Mr Spence. In his evidence he told the tribunal that he did not act on these requests as he considered that the claimant was still pursuing an application for early retirement on the grounds of ill-health. This apparent failure to deal with the claimant’s request to return to work culminated in a grievance made by the claimant towards the end of February 2011. Mr Spence then passed all documentation to Mr Galway who is the Equal Opportunities Manager for the respondent and took no further part in the process. The claimant issued his tribunal proceedings in April 2011.

8. Very little has happened subsequent to this. The claimant again signed off SSP in September 2011 and requested placement in a suitable post. He remained unhappy at any suggestion of returning to either the warehouse or the ASN position. There followed some correspondence through September and October 2011 in which the respondent asked for further clarification from the claimant as to his proposals. These appear to have been essentially proposals that he would return to a position within the Security Unit. However, in his evidence the claimant told the tribunal that he was unsure whether he would be fit to work. He attributed his problems to his physical condition which he said had deteriorated in the week that he worked in the Stores in April 2010. He said that he could not stand, could not walk and he had difficulty sitting. He did not know if he would be able to return to any seated position. He did not believe that he could fulfil any full-time role and that he might be able to work one day in the week; but nothing more. He also confirmed that the provision of a suitable chair and car parking space would not be effective in alleviating his problems.

The law

9. The law relating to reasonable adjustments is contained in Section 4A of the Disability Discrimination Act 1995. An employer is under a duty to take such steps as are reasonable to prevent any provision, criterion or practice from placing a disabled person at a substantial disadvantage in comparison to other persons who are not disabled. Failure to comply with this duty would amount to discrimination against that person. In determining whether it is reasonable for an employer to take steps, regard shall be had to the extent to which taking the steps would prevent the effect in relation to which the duty is imposed (DDA Section 18B). The test under Section 4A is an objective one and requires the tribunal to consider whether the employer has taken such steps as it is reasonable for him to have taken. It is the steps taken or not taken that are to be tested and not the employer’s state of mind in taking or not taking such steps.

Tribunal’s conclusions

10. In considering whether or not the respondent has a duty to make reasonable adjustments, one factor is the state of knowledge of the employer. In this case there appears to have been no direct acknowledgement of the claimant’s disability in the workplace, nor has the claimant used the appropriate workplace channels and processes to request the adjustments that he sought. He did not make the appropriate request for adjustments through his line manager and Occupational Health until some stage late in 2010 or early 2011. However, the respondent in its evidence confirmed, through both Mr Spence and Mr Briars, that there was an awareness of the claimant’s condition and the tribunal finds that the respondent had sufficient notice and knowledge of the claimant’s physical condition and disability.

11. From the facts found, it would appear that the claimant voluntarily transferred to the Stores position in March 2010. When problems arose a suitable alternative role was sought for the claimant and was apparently found within the ASN Project. The physical requirements of this role were largely the same as the claimant’s previous role in the Security Communications Unit. However, the claimant left this role. The tribunal has concluded that he did not do so because of any lack of provision of either a chair or a car parking space. The reasons given by the claimant at the time and confirmed at the hearing were that the claimant found he was bored by the role and had too little to do. The tribunal has also concluded that the claimant was motivated by concerns that this Project was a temporary role and that it may be used to his disadvantage in his ongoing employment with the respondent in any future redundancy process. The claimant left the role in ASN and sought a return to the Security Communications Unit. This is where the impasse has arisen. However, in the circumstances of this case, the tribunal has concluded that the adjustments sought are not reasonable adjustments because, in the claimant’s own evidence, they would not be effective in allowing him to return to the workplace.

12. The unanimous decision of the tribunal is that the claimant was not discriminated against on the grounds of his disability and his claim is dismissed.

Chairman:

Date and place of hearing: 21 - 22 November 2011, Belfast

Date decision recorded in register and issued to parties:

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