Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/121_12IT.html
Cite as: [2012] NIIT 00121_12IT, [2012] NIIT 121_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 121/12

CLAIMANT: Shernelle Knox

RESPONDENT: Castlereagh Borough Council

DECISION

The decision of the tribunal is that the claims of unfair dismissal and disability discrimination are dismissed.

Constitution of Tribunal:

Chairman: Mrs Ó Murray

Members: Ms G Ferguson

Mrs K McCrudden

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Donnelly and Kinder Solicitors.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons Solicitors.

The Claim

1. The claimant claimed unfair dismissal in that the penalty of dismissal was too harsh and did not take sufficient account of her mitigating circumstances. The respondent’s case was that the claimant was fairly dismissed for misconduct.

2. The claimant claimed disability discrimination under two headings: firstly, failure to make reasonable adjustments in respect of the penalty applied to her for misconduct and secondly that the respondent was guilty of harassment. The harassment claim centred on the transforming of a performance management process relating to the taking of management minutes, into a disciplinary investigation into the claimant’s alleged refusal to take minutes on 23 December 2010.

The Issues

3. The issues for the tribunal therefore were as follows:

(1) Whether the penalty of dismissal applied in the claimant’s case was fair in all the circumstances and in particular whether it fell within the band of reasonable responses for a reasonable employer.

(2) Whether the duty to make reasonable adjustments arose and if so whether the respondent failed to make a reasonable adjustment. The adjustment in issue in this case was the imposition of a penalty short of dismissal.

(3) Whether the instigation of a disciplinary investigation into the claimant’s alleged refusal to take management minutes on 23 December 2010 amounted to harassment by the respondent and in particular by Mr Edward Patterson. The issue here is whether, for a reason which related to the claimant’s disability Mr Patterson engaged in unwanted conduct which had the requisite purpose or effect. The allegation against Mrs McCoy was that she influenced the performance management process to ensure that it became a disciplinary one and was thus engaged in the harassment perpetrated by the organisation in that regard.

Sources of Evidence

4. The tribunal had written and oral evidence from the claimant and her psychiatrist Dr Anderson. For the respondent the tribunal had written and oral evidence from the following witnesses: Heather Moore, George Doherty, Steve McCready, Edward Patterson, Edwin Campbell, Heather Currie, Stephen Reid, Ian Patterson, Tom Cousins, Ross Gillanders, Kieran Connolly and Joan McCoy. The tribunal also had regard to the documentation to which it was referred.

5. The medical evidence before the tribunal was the written and oral evidence of the claimant's psychiatrist, Dr J Anderson; the GP notes and records to which the tribunal was referred, and the six occupational health (OH) reports covering the period from 23 February 2010 to 4 October 2010. We were also referred to a GP report of 11 March 2010.

The Law

Unfair Dismissal

6. The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (referred to as “the Order”). At Article 130 of the Order it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2). One of the potentially fair reasons for dismissal, listed at Article 130(2)(b), relates to the conduct of the employee. If the tribunal finds that the employer has dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).

7. The task for the tribunal in a misconduct dismissal case is set out as follows by the judge in British Home Stores Ltd v Burchell [1980] ICR 303:

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of misconduct in question … entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. Thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case”.

8. The Northern Ireland Court of Appeal decision in the case of Rogan v South Eastern Health and Social Care Trust [2009] NICA 47 outlines the task for the tribunal in a misconduct dismissal case. The test to be applied is whether dismissal was within the band of reasonable responses for a reasonable employer. The tribunal must not substitute its own view for that of the employer but must assess whether the employer’s act in dismissing the employee fell outside the band of reasonable responses for a reasonable employer to adopt in the circumstances.

9. An employer should not adopt a rigid approach to penalty in misconduct cases but should look at all the circumstances. (Taylor v Parsons Peebles NEI Bruce Peebles Ltd [1981] IRLR 119).

Disability Discrimination Act 1996 (DDA): The duty to make reasonable adjustments.

10. The employer’s duty to make reasonable adjustments is outlined in the DDA at s4A and states, insofar as is relevant to these proceedings, as follows:

“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, or feature, having that effect.”

11. In the case of Rowan v The Environment Agency [2008] IRLR 20 the EAT outlined the steps that the tribunal must go through in order to determine whether the duty to make reasonable adjustments arises and whether it has been breached. The steps relevant to this case, are as follows:-

(i) identify the provision, criterion or practice (PCP) applied that has put the claimant at a disadvantage compared to those who are not disabled;

(ii) identify the non-disabled comparator (where appropriate);

(iii) identify the nature and extent of the substantial disadvantage suffered by the claimant.

12. If the duty arises the tribunal then goes on to determine whether the proposed adjustment is reasonable to prevent the PCP placing the claimant at that substantial disadvantage. This is an objective test.

13. Section 18B of the DDA sets out the factors that the tribunal must consider when deciding whether it is reasonable for an employer to make any particular adjustment once the duty to make a reasonable adjustment has been triggered.

14. At Section 18B(2) of the DDA examples are given of steps which employers may need to take to comply with the duty to make reasonable adjustments. This is a non-exhaustive list.

15. A dismissal can itself be an unlawful act of discrimination by reason of a failure to make reasonable adjustments. (Fareham College Corporation v Walters [2009] IRLR 991 EAT). In that case the claimant was dismissed for her poor sickness absence record rather than being given a phased return to work to take account of her medical difficulties.

16. The burden of proof provisions as outlined in the case of Igen Limited v Wong [2005] IRLR 258 CA apply to these proceedings. The claimant must prove facts from which, in the absence of an adequate explanation, the tribunal could conclude that a duty to make a reasonable adjustment has arisen and, that it has been breached. If the claimant proves such facts the burden shifts to the employer to prove either that no such duty arises or that it has not been breached.

DDA - Harassment.

17. Harassment is defined at section 3B of the DDA as follows:-

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

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

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

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

18. The burden is on the claimant to prove facts from which the tribunal could conclude that she suffered such unwanted conduct related to her disability, which had the required purpose or effect. If the claimant proves such facts the burden shifts to the respondent to prove that the treatment was not related to disability or that it did not have the alleged purpose or effect.

Findings of Fact and Conclusions

19. We considered all the evidence both oral and documentary which was placed before us to reach the following relevant findings of fact on a balance of probabilities. We considered the written and oral submissions and the relevant law and applied the legal principles to the facts found to reach the following conclusions.

Summary of Relevant Medical Evidence

20. It was conceded by the respondent for the purposes of these proceedings that the claimant was disabled for the purposes of DDA during the relevant period namely January 2010 to 11 October 2011. The relevant condition relied upon by the claimant was depression.

21. Following the birth of her daughter in 2007 the claimant suffered physical and mental health problems. In the psychiatrist, Dr Anderson’s opinion, the claimant suffered from significant clinical depression between the period 2007 and 2011. At the time of examination by Dr Anderson on 17 September 2012 the claimant continued to suffer from “symptoms consistent with the diagnosis of a mild depressive episode”.

22. It was common case that the claimant was under particular pressure in early 2010 in work due a combination of factors one of which was the rotation of the ACE post and the other of which was the huge influx of FOI enquiries following the Lock-keeper's Cottage matter.

23. The claimant was referred to Occupational Health in February 2010 due to her absence record and her physical and mental health issues were highlighted in the context of allowing latitude for her absence levels.

24. The next OH report is 10 June 2010 following an examination which was arranged to deal specifically with the claimant’s fitness to attend the disciplinary process and the harassment investigation. The OH doctor stated that she was fit to attend the disciplinary process and confirmed that any indefinite delay in that process would have a negative impact on her physiological well-being.

25. The OH report of 6 October 2010 is the key report referred to by the claimant in her case. In that report Dr Black states as follows:

“… I note that she has also been reported as having fits of crying and hysterical outbursts.

...

With regard to Shernelle’s outbursts of crying etc at work, as with any individual who is experiencing significant levels of anxiety, I believe Shernelle will be somewhat vulnerable to perceived pressure from whatever source either inside or outside of work. In this case whilst Shernelle herself attributes her difficulties principally to her employment, most probably her ongoing physical health further exacerbate her anxiety. I feel Shernelle is likely to continue to experience a degree of emotional lability and have further episodes of further outbursts as a result. With regard to ongoing investigations I believe that Shernelle’s long-term mental health is best promoted by these issues being concluded as speedily as possible. In my view Shernelle is fit to engage in this process “.

The process referred to was the disciplinary process and the harassment investigation.

26. The next OH report is by Dr Turner on 8 March 2011 and states that the claimant was fit for work and also states as follows:

“As before this lady continues to experience levels of anxiety and given the current circumstances she will continue to be vulnerable to perceive pressure both inside and outside of work. At the time of her assessment today Shernelle continues to demonstrate emotional lability and is likely to experience further anxiety and episodes of crying when she finds herself under perceived pressure. While Shernelle understands that employee relation meetings can be potentially confrontational and she is aware that a speedy resolution of the outstanding would be in her best long term interest, it might be helpful if the dates for any further meetings can be mutually agreed with Shernelle given the level of vulnerability and anxiety that she is currently displaying. I would however assess Shernelle as being fit to take part in the process and would hope that a satisfactory conclusion would help her long term mental health”.

27. In his report of 12 September 2012 Dr Anderson referred to the 'outbursts' issue as follows:

“Ms Knox was clear in her description of the circumstances that she was emotional and as her depression deepened was given to outbursts and that she had difficulty diverting herself from this when stressed. She found this particularly difficult when she was communicating with a number of named individuals. She was very reluctant to contact these individuals directly as she knew that she would have difficulty controlling her emotions such that she resorted to delegating report of her sickness absence to her father or notification using text message to avoid the personal contact that she found so distressing. This is quite a usual experience within the context of mental illness in the workplace”.

28. In oral evidence Dr Anderson expanded on his evidence on the outbursts issue. In summary his opinion was that the claimant’s depression impaired her ability to manage her emotions and could cause her to ruminate on relatively minor matters to the point where she could react disproportionately.

29. The strong thread running through the OH reports was that the claimant was fit to engage with the relevant processes and that it was in the interests of her health for matters to be concluded speedily.

30. None of the medical evidence dealt specifically with whether the concept of “outbursts” covered inappropriate emails sent after a period of reflection. On a balance of probabilities we find that such emails are not so covered as the claimant has failed to discharge the burden of proving that primary fact.

General

31. At the time relevant to these proceedings the claimant was PA to the Chief Executive of Castlereagh Borough Council. The claimant’s role was a very important one at the heart of the Senior Management Team.

32. The claimant worked for the Chief Executive Mr Donaldson from 1998 until he left the Council in February 2009. Between that date and January 2011, when the new Chief Executive Mr Reid was appointed, there was a period of almost two years when the post of Chief Executive was rotated around the directors in the Management Team. The four Acting Chief Executives (ACE) were Joan McCoy, Heather Moore, Edward Patterson and Edwin Campbell. In the main, each director held the post of ACE for a period of one month although Mrs McCoy and Mrs Moore removed themselves from the rotation in 2009 and Edwin Campbell took on the ACE role for most of that year.

33. The claimant's level of sickness absence breached triggers and led to 2 meetings with her in July and September 2010. On both occasions targets were adjusted to take account of the claimant's medical condition. Further adjustments of procedure occurred again in April/May 2011 when a verbal warning was not issued for absence issues.

34. The claimant had been admonished by the previous Chief Executive in May 2008 for an inappropriate email whose tone was regarded as insubordinate and this resulted in this verbal warning being recorded on her personnel file as the Chief Executive had previously had to speak to her about the tone of emails. It was not therefore the case Mrs McCoy was the first or only person to have a problem with the tone of the claimant’s emails.

The First Disciplinary Process

35. This disciplinary process began with a letter of 1 April 2010 and an investigation in November 2010. The key matter under investigation was the nature and content of emails sent to Mrs McCoy by the claimant. In evidence to us the claimant accepted that the content of the emails was inappropriate, that they merited disciplinary action against her and that she was liable to be penalised as a result. The claimant disputed, however, that she should have received a final written warning for the offences.

36. Mr Cousins dealt with the first disciplinary process. He had a meeting on 8 February 2011 and he recommended a final written warning for major misconduct having taken account of the claimant's illness as a mitigating factor.

37. Mr Gillanders dealt with the appeal and had a hearing on 17 May 2011. Mr Gillander’s report of 1 June 2011 considered and weighed up all the factors in the case including the 11 mitigating factors (which included reference to the claimant’s medical condition) and the OH information which was before him. He found the “most compelling” mitigating circumstance to be the inconsistency of approach by different directors during the period of rotation. Mr Gillanders found the sending of the emails over a protracted period of time to be gross misconduct warranting dismissal, but in view of the mitigating circumstances, he reduced the penalty to a final written warning. At the time of that decision we find that, on a fair reading of the medical evidence, there was nothing to suggest that the inappropriate tone and content of the emails was connected to the claimant’s medical condition.

38. The offences for which the claimant was found guilty in February 2011 were as follows:

(1) offensive behaviour through the medium of emails towards a fellow employee;

(2) personal insulting remarks towards a fellow employee;

(3) undermining the Director of Administration and Community Services/ACE (Mrs McCoy);

(4) contravention of the IT policy.

39. It was the claimant’s case that Mrs McCoy had a malign influence over the processes concerning her. In support of this, the claimant pointed to a document prepared by Mrs McCoy outlining her complaint about the emails in March 2010. It was contended that this document was an attempt to set terms of reference for the investigation and amounted to improper behaviour by Mrs McCoy.

40. We do not accept the claimant’s point on this. The document was titled “Confidential report to investigating officer” and essentially amounted to a letter of complaint by Mrs McCoy regarding the behaviour which ultimately led to the claimant receiving a final written warning. Even if Mrs Mc Coy had jumped the gun in setting out her complaint in detail before she was asked, we do not find that this supports the claimant’s case in circumstances where the claimant agreed that she was liable to be disciplined for the admitted inappropriate emails. In addition, the terms of reference referred to by Mrs McCoy were not the terms of reference actually used by the disciplinary team.

41. The specific allegation made by the claimant was that no account or insufficient account was taken, at the time, of her mitigating circumstances which related to her workload and her health problems. Further, the claimant's case was that this context could, and should, have been taken into account when the penalty was being decided upon in the second disciplinary process months later. (see below)

42. We do not accept the claimant’s case on this point for the following principal reasons:

(1) At no point did the claimant contest to us the categorisation of the offences during the first disciplinary process as repeated major misconduct or gross misconduct.

(2) The penalty was reduced from dismissal to final written warning as the claimant’s circumstances and health were amongst matters considered and led to the reduction in penalty. The context referred to by the claimant was therefore taken into account in deciding on penalty.

(3) We do not regard the imposition of the final written warning as unreasonable given the content of the emails.

(4) We accept that the respondent was entitled to take a serious view of the misconduct which the claimant admitted and we find that they took reasonable account of the mitigating circumstances and reduced the penalty as a consequence. We do not therefore find the penalty imposed to be evidence of some sort of campaign against the claimant by Mrs McCoy. The content of the emails to Mrs McCoy was clearly inappropriate. The tone of Mrs McCoy's replying emails was professional and appropriate. We saw no evidence in them of her bullying the claimant although this was the claimant's perception.

43. Specific examples explored in evidence before us, showed that Mrs McCoy was justified in picking the claimant up on things that she had done incorrectly or which exceeded her authority. Mrs McCoy in her emails with the claimant was therefore responding appropriately to things that the claimant did or did incorrectly. The disproportionate reaction displayed by the claimant, even if it was related to her condition could not be ignored by the respondent nor does the law necessarily require the respondent to ignore such behaviour whether or not it is connected to a medical condition: the circumstances and context are key.

The second disciplinary process

44. An investigation was carried out by Mr Connolly and his report of 21 September 2011 recommended that two of three possible charges move forward for a disciplinary hearing. The first potential charge investigated, which was related to the refusal to take management minutes on 23 December 2010, did not proceed to disciplinary hearing.

45. The second disciplinary hearing on 5 October 2011 therefore involved two charges as follows:

i. that the claimant was verbally abusive about the management team to one of that team, a director Heather Moore on 16 June 2011 and;

ii. that the claimant failed to abide by the absence notification procedure in that she was obliged to ring in or have someone ring in on her behalf to say when she would not be in work whether on annual leave, flexi-leave or sick leave, but the claimant persisted in sending texts instead even though she had been told repeatedly not to do so.

46. Mr Doherty dealt with the disciplinary hearing and recommended a written warning for each of the allegations. His report of 11 October 2011 weighed up the evidence on both allegations. He took account of the claimant’s circumstances and her GP letter indicating anxiety and lack of confidence and nevertheless found that the first charge warranted a written warning. Mr Doherty considered the claimant's circumstances and the fact that she had been upset on receiving two letters from HR and he reduced the penalty applicable to the abusive language charge from a final written warning to a written warning. He then exercised his discretion in deciding that the final written warning would be taken into account, given the similar nature of the offences, and that the outcome would be dismissal.

47. Mr Ian Patterson dealt with the appeal hearing on 10 January 2012 and upheld the decision to dismiss. The following paragraph in his report of 10 January 2012 was the subject of much discussion during the hearing:

“The verbal outburst on this occasion and the written communications of the previous charge are both examples of inappropriate behaviour. They are both inappropriate behaviour and therefore, in my opinion, cannot be separated. When inappropriate behaviour which has led to a final written warning is repeated, there is no disciplinary action other than dismissal”.

It was the claimant’s case that this paragraph showed that he fettered his discretion rendering the dismissal unfair.

48. In oral evidence to us it is clear that Mr Patterson regarded the behaviour as very serious indeed and that he took into account the claimant’s condition and that one of the signs was that she would be liable to outbursts. Essentially his view was that the behaviour was not excused by that mitigating circumstance because in the context of what was said, where it was said and about whom it was said, it constituted inappropriate behaviour of the worst kind.

Unfair Dismissal

49. The key point made by the claimant was that Mr Doherty, and Mr Patterson in particular, imported unlawfulness into the process by fettering their discretion when deciding on penalty. It was alleged that Mr Patterson fettered his discretion believing that the only option opened to him on appeal was dismissal because of the final written warning.

50. We are not convinced that Mr Patterson did fetter his discretion. His evidence to us emphasised the gravity of the behaviour in his opinion and that this, coupled with the existence of the final written warning, meant that dismissal was inevitable. This approach is within the band of reasonable responses for a reasonable employer in the circumstances. Account was taken of the claimant’s mitigating circumstances but, in his view, they did not outweigh the gravity of the situation where it was found that there was persistent refusal to follow the absence procedure and a repetition of inappropriate behaviour which essentially was insubordinate and undermined senior managers.

DDA - The Duty to Make Adjustments

51. Mr Potter submitted as follows using the elements of the Rowan test:

(1) The PCP in this case was the way in which the disciplinary procedure was applied to the claimant as regards the penalty imposed on her and in particular the consideration of, or weight given to, mitigation especially as regards the penalty to be imposed following a final written warning;

(2) The PCP placed the claimant at a substantial disadvantage because the reason for her misconduct was her medical condition;

(3) The relevant comparators are employees who in the same or similar workplace situations would be expected to handle themselves without having written/or oral outbursts. Mr Potter accepted that a non-disabled employee without such a proclivity to outbursts would conceivably have been lawfully dismissed in the same circumstances.

(4) The substantial disadvantage alleged to have been suffered was the imposition of an unadjusted disciplinary process as regards the penalty of dismissal and the weight given to the earlier final written warning: in other words the substantial disadvantage was that she was dismissed rather than not.

52. The Rowan case makes clear that a comparator is not always necessary as it will usually be clear as to whether or not the disabled person is placed at a substantial disadvantage because of their disability. In the current case however it is not clear that the application of the penalties or consideration of mitigating circumstances placed the claimant at a substantial disadvantage simply because the cause of her misconduct was said to be her medical condition.

53. We have therefore considered how those without the claimant's disability, but with a proclivity to outbursts, would have been treated when faced with such disciplinary charges and we find that they would have been treated no differently. We use the comparison as a tool to establish whether any disadvantage suffered because of the application of the PCP (ie the alleged failure to take account of mitigation and the imposition of the penalty of dismissal) was suffered because of the claimant's disability and we find that it was not. The claimant was dismissed because of misconduct. A non-disabled person in similar circumstances would likely have been dismissed too.

54. We do not accept that the claimant has shown that the duty to make reasonable adjustments was triggered as she has failed to show that the application of the disciplinary procedure in the way described, placed her at a substantial disadvantage because of her disability compared with those not suffering from her disability. The claimant's disability was also not sufficiently closely connected to the dismissal for the duty to be triggered.

55. The DDA requires the employer to take such steps as are reasonable to seek to 'level the playing field' for those who are disabled who are placed at a substantial disadvantage by a PCP because of their disability. It is not enough for the alleged adverse treatment to be connected to the claimant’s disability for the duty to make reasonable adjustments to be triggered. The disability must be the cause of the substantial disadvantage which is suffered due to the application of the PCP. The alleged connection between the disability and dismissal is insufficiently close in this case.

56. If Mr Potter were right in his submission, the logical conclusion would be that the claimant could continue to engage in written and oral outbursts with impunity, or at least without the possibility of ever being sacked, no matter how many times or how serious the infringements. This cannot be the case nor do we find it to be the legal position.

57. Another issue for us is whether imposing a lesser penalty, that is a penalty short of dismissal, would have alleviated the alleged substantial disadvantage. Again we do not find the requisite connection between the adjustment and the alleged disadvantage. The aim of the legislation is to level the playing field, insofar as is reasonable, to enable a claimant to engage in the workplace with positive allowances being made for the effects of the medical condition. We cannot see how a non-dismissal would enable the claimant to perform her job without displaying the inappropriate behaviour which made her liable to be dismissed.

58. If we are wrong on this point and the duty to make reasonable adjustments was triggered in this case, it is our view that the respondent did make reasonable adjustments in that they took account of the mitigating factors put forward (which included that claimant's medical condition) by reducing the penalty attached to the two charges, to written warnings. We regard it as reasonable for the respondent to have reduced the penalty and we do not regard it as unreasonable of them to have then taken account of the live final written warning.

59. The claimant was also dismissed for persistent refusal to follow the absence management procedure. There was no evidence that this failure was a product of her condition in the following circumstances: firstly, it would have been acceptable for her father to ring in for her and, secondly, her father had actually telephoned for the claimant on one occasion thus complying with the policy. Despite this the claimant persisted in contravening the policy.

DDA - Harassment

60. The claimant was told that there were issues with her performance in a meeting on 9 June 2010. The claimant agreed in evidence to us that she was performing under par from the beginning of 2010 and she accepts that she was liable to be performance managed.

61. The performance review began with an informal stage comprising a meeting in October 2010. This dealt with several aspects of the claimant’s performance most of which improved following meetings where actions and targets were agreed. However the taking of minutes and their standard remained an issue between management and the claimant. The claim of harassment centred on the development of that process into a disciplinary investigation into her refusal to take management minutes on 23 December 2010.

62. The claimant had been asked to take minutes of an emergency meeting on 23 December 2010 by Mrs McCoy (who was ACE at that time) and she had refused saying, firstly, that she did not want to under-perform any further as she was in the middle of performance management and secondly that her Trade Union had advised her not to take minutes any more pending the outcome of that process.

63. In the end the investigation found that it was reasonable of the claimant to have refused to take the minutes and that is why it did not go forward to disciplinary hearing.

64. The height of the claimant’s point on this therefore is that she was subjected to an investigation of a refusal to take minutes on 23 December and that this amounted to harassment by Mr Patterson in that it created a hostile degrading humiliating and offensive environment for her. It was further alleged that the change in approach to this issue was prompted by Mrs McCoy who had a malign influence on the matter. We were referred to Mrs McCoy's email of 5 January 2011 in support of this allegation.

65. Mr Potter in particular asked us to draw an adverse influence from the late production of an email from Mrs McCoy of 5 January 2011 which was sent to Personnel. In that email Mrs McCoy gives her account of the alleged refusal to take minutes on 23 December and also states as follows:

“I find this advice (if correct) to be most unusual and unwise, on the part of a union rep, as clearly the taking of minutes is her specific duty. I cannot fathom why anyone under disciplinary review, would refuse to do her job, when they know that by doing so, it could lead to even further issues in terms of performance. At one stage, I specifically said to her 'please don't do this' but Shernelle was adamant she was not taking minutes. I advised her that I would have to report this as part of the performance review. Please note on file. Thanks”

66. We draw no adverse inference from the late production of the email as it actually supports the respondent’s case and does not add anything further to the claimant’s case. The claimant was the subject of performance management for a period before the email and at all points was aware that the performance management process could become a conduct issue if she failed to improve. We therefore do not regard the reference in the email to: “anyone under disciplinary review” as supporting the claimant’s case that Mrs McCoy was trying to harass her by making the performance review transform into a disciplinary matter.

67. For the claim of disability harassment to succeed there needs to be a causal connection between the acts complained of and the disability. There was no evidence before us that the escalation of the performance issue into a disciplinary matter amounted to conduct related to the claimant’s disability. The question for us is whether it was reasonable for the refusal to take minutes to be referred for disciplinary investigation. We regard it as reasonable. The respondent did have reason to investigate the alleged refusal to see if it merited disciplinary action. The investigation decided that it did not but that decision does not mean that it was wrong or discriminatory for the point to be put to investigation. We find that the claimant has not discharged the burden of proving the requisite causal connection between the act and her disability.

68. The respondent could not ignore that the claimant had decided (albeit with Trade Union advice) not to take minutes. We do not regard the respondent's conduct over the minutes issue as unreasonable or discriminatory in the following circumstances:

(1) it was legitimate to ask claimant as PA to take them;

(2) it was legitimate to point out to claimant the problems with the minutes with a view to her improving;

(3) the claimant was offered a course which she repeatedly refused saying it was unnecessary;

(4) the claimant then accepted that this was part of her duties when the new Chief Executive took over and took minutes and agreed to go on a course.

69. Essentially the claimant dug her heels in about the taking of minutes and unreasonably maintained that her contract did not cover this activity. She accepted she was deficient in taking them yet refused to go on a course. Despite this, the claimant took minutes for the new Chief Executive Mr Reid from January 2011 (when he was appointed) until June when she went on sick leave. At a meeting with Mr Reid the claimant had agreed that minute-taking was part of her duties. It seems to us that the problem for the claimant was that it was Mrs McCoy who had asked her to do them in December 2010.

Summary

70. The unfair dismissal claim fails as the dismissal for misconduct was within the band of reasonable responses for a reasonable employer in the circumstances.

71. The claim of failure to make reasonable adjustments is dismissed as the duty did not arise or, in the alternative, if it did arise, the respondent complied with it.

72. The claim of disability harassment is dismissed as the acts complained of were not connected to the claimant's disability in the requisite way.

Chairman:

Date and place of hearing: 15-19 and 22-23 October 2012, Belfast.

Date decision recorded in register and issued to parties: