Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/1376_10IT.html
Cite as: [2012] NIIT 1376_10IT, [2012] NIIT 01376_10IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1376/10

CLAIMANT: David McAllister

RESPONDENTS: 1. Forest Service

2. Department of Agriculture & Rural Development

DECISION

The unanimous decision of the tribunal is that:-

(i) The claimant’s claim of direct disability discrimination was out of time; but the tribunal considered it just and equitable to consider the said claim.

(ii) The claimant, at the material time, was not a disabled person within the meaning of the Disability Discrimination Act 1995, as amended. The tribunal therefore does not have jurisdiction to hear the claimant’s claim.

Constitution of Tribunal:

Chairman: Mr Drennan QC

Members: Mr A Henry

Mrs D Kelly

Appearances:

The claimant appeared in person and was unrepresented; but was assisted by his daughter as a “McKenzie friend”

The respondent was represented by Mr M Potter, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.

Reasons

1.1 The claimant presented a claim of disability discrimination, pursuant to the Disability Discrimination Act 1995, as amended (DDA) on 17 May 2010; and the respondents presented a response to the said claim, denying liability, on 16 July 2010.

1.2 The tribunal, in a decision on a Pre Hearing Review, registered and issued to the parties on 9 May 2011 decided:-

“(i) the claimant complied with the requirements set out in Article 15 Schedule 1 Part II paragraph 6 of the Employment (Northern Ireland) Order 2003, by setting out a grievance in writing and sending a statement or a copy of it to the respondents; and the claimant is therefore entitled to present his claim of disability discrimination to the tribunal, pursuant to Article 19(2) of the Employment (Northern Ireland) Order 2003; and

(ii) the tribunal therefore does have jurisdiction to consider and determine the claimant’s claim of disability discrimination.

1.3 At a Case Management Discussion on 27 July 2011, as set out in the record of proceedings, dated 1 August 2011, the following legal and main factual issues were identified and agreed; and which were then confirmed by the parties at the outset of the hearing of this matter, namely:-

“Legal Issues

1. Whether the tribunal has jurisdiction to hear the complaint on the ground that the respondent alleges the claimant has failed to lodge the complaint within the applicable time limitation period, pursuant to Schedule 3 of the Disability Discrimination Act 1995?

2. Whether the claimant has a disability for the purposes of the Disability Discrimination Act 1995, Sections 1-2 and Schedule 1?

3. Did the respondent discriminate against the claimant contrary to the Disability Discrimination Act 1995, as amended, as follows:-

(a) by treating him less favourably on the grounds of disability contrary to Section 3A(5)?

4. Whether the respondent has failed to comply with the statutory grievance procedures, contrary to the Employment (Northern Ireland) Order 2003.

5. What remedy does the claimant seek and what is his injury, loss or damage?

Factual Issues

1. Why was the claimant suspended from work?

2. Does the claimant have a disability?

3. What injury, loss or damage did the claimant suffer as a result of any alleged discrimination?

1.3 At a Case Management Discussion on 22 November 2011, as set out in the record of proceedings dated 24 November 2011, the claimant withdrew his application to amend his claim to include a claim of a failure by the respondents to comply with their duty to make reasonable adjustments, pursuant to the DDA.

1.4 At the outset of the hearing, the respondents confirmed that the preliminary jurisdictional issues relating to time and/or whether the claimant was a disabled person for the purposes of the DDA still required to be determined by the tribunal, in the course of this hearing. The claimant further confirmed that the remedy he sought, if the respondents were liable in respect of his said claim, was compensation for injury to feelings relating to a period of suspension by the respondents of approximately one month, namely from 29 April 2008 to 23 May 2008.

2.1 The tribunal made the following findings of fact, as set out in the following sub paragraphs, in so far as relevant and material to the tribunal’s decision, as set out above. It did so, after hearing oral evidence, on behalf of the claimant from the claimant himself and Mr M Hamilton; and, on behalf of the respondents, Mrs J Taylor, Mr J Watson and Ms J Girvan, together with the various documents and reports, to which the tribunal was referred by the parties during the course of the evidence and after considering the written and/or oral submissions of the claimant and the respondents’ representative.

2.2 The claimant was employed by the respondents from in or about March 1985, as an industrial employee. The claimant was off sick for a lengthy period of approximately nine months from in or about February 2007, as a result of the claimant, in an accident at home, suffering a number of severe physical injuries to his wrist/ribs/vertebrae/leg. At the end of the period of sick absence, the claimant began a phased return to work from on or about 19 November 2007 requiring him to work three days per week (Monday to Wednesday 7.5 hours each day), which was to be reviewed by his line manager, Ms Taylor, on a weekly basis with the aim that the claimant would be able to return to a full-time working pattern within a phased return of 12 weeks. Subsequently, it was agreed by the claimant and Ms Taylor to change the previously agreed pattern of work to four hours each day for two days a week. Throughout the initial 12 week phased return, the claimant continued to complain of pain and discomfort and difficulty, arising from the said injuries, whilst carrying out the duties which were allotted to him during this period, after the respondents had made adjustments to his duties, on advice received by the respondents from their Occupational Health Service. As a consequence, the period of phased return was further extended in February 2008 for a further period of three months and was due to end in or about May 2008. Again, the claimant continued to complain of pain and discomfort and difficulty, arising from his injuries, whilst carrying out his duties. As a consequence, his line manager had serious concerns about his work performance and, in particular, whether he would be in a position to return to full-time work at the end of the extended period of phased return. At all times, Ms Taylor kept full and excellent records of the complaints by the claimant of the difficulties he appeared to be encountering in his duties and his apparent lack of improvement, despite the fact that his duties had been adjusted to make them lighter, in accordance with advice from Occupational Health Services (OHS). Indeed, the claimant, in the course of his evidence, tried to suggest that the records kept by Ms Taylor were inaccurate and that he was not having the difficulties and/or making the complaints due to his physical injuries, as suggested by her in her records. The tribunal accepted the accuracy of what Ms Taylor had recorded and were therefore forced to conclude that, for his own personal reasons, the claimant had sought to exaggerate his physical condition and the difficulties he had during this period.

2.3 On 11 March 2008, at a meeting with his line manager Ms Taylor, about his failure to report to Hillsborough Forest on 10 March 2008, when he had gone to Belvoir Forest, he explained to her that he had done so as he had to go to a hospital appointment in the afternoon and it was easier for him to go to the hospital from Belvoir Forest. During the course of this meeting the claimant, who had complained of fatigue in carrying out his duties at work, revealed to Ms Taylor that, during a routine CT scan, following his accident, scarring had been noted on his liver and that doctors had informed him that they wished to investigate this further. He further indicated to her during the course of this meeting his considerable, albeit understandable, worries about the seriousness of what had been revealed on the scan about the condition of his liver and the fact the doctors wished to investigate further with the concern that he might, following such an investigation, be required to have a liver transplant. He also told her that, as a result of the above development, he might require to attend further outpatient hospital appointments.

2.4 Ms Taylor was sufficiently worried by what the claimant had told her about his liver condition that she informed the District Manager, Mr J Wilson. In particular she was anxious to ascertain whether the claimant’s difficulties at work, as outlined above, were due to his original post accident problems or were influenced by his reported liver condition. Dr McCaughan of OHS expressed the view that he was doubtful that the claimant’s performance was due to the reported liver condition, on the limited information before him at that time, but significantly expressed the opinion that such a condition it could result in the claimant being easily fatigued. However, he also advised that, in the absence of detailed medical opinion from Occupational Health Services, this could not be stated with any certainty. In the circumstances, it was agreed that such an OHS appointment should be made as quickly as possible; but that, in the circumstances, the claimant should be suspended for medical reasons pending receipt of detailed medical opinion from OHS about this liver condition.

The claimant was informed of his said suspension, pending receipt of the medical opinion from OHS about his liver condition, at a hastily arranged meeting, due to the urgency to stop the claimant continuing to work in such circumstances, with Ms Taylor and Mr Watson at Hillsborough Forest later on 29 April 2008.

2.5 The claimant was subsequently examined by Dr McCaughan and, in his view, in a report dated 7 May 2008, he concluded that any problem, which had been previously disclosed on the scan in relation to the claimant’s liver, was not significant. He further noted that the claimant’s health problems had improved since February 2008, when the phased return had been extended and that, in his opinion, the claimant was at that time fit to return to work, which he subsequently did on or about 23 February 2008. The claimant’s General Practitioner, Dr McFerran, also confirmed that the claimant was fit to work in a medical certificate dated 5 May 2008 and received by the respondents on 23 May 2008.

2.6 In correspondence, which formed part of the claimant’s grievance, as set out in the decision in the Pre Hearing Review registered and issued to the parties on 9 May 2011, following the meeting on 29 April 2008, and his said suspension, the claimant made it clear he considered the respondents’ action in so suspending him for the said month was unlawful discrimination on the grounds of his disability.

2.7 Other than the medical reports of Dr McCaughan and the claimant’s General Practitioner’s certificate referred to above, the only other medical evidence produced by the claimant was a report from his General Practitioner Dr McFerran, dated 3 November 2010, which was written in order to obtain Incapacity Benefit for the claimant and, as the claimant acknowledged, in evidence, had no relevance to any disability he was relying upon at the time of his said suspension from 29 April 2008 until 23 May 2008. Indeed, the tribunal noted that the claimant, following his return to work on 23 May 2008, was able to resume work, without further difficulty. It was agreed that any further absence from work at the end of a further 12 month period, following his return to work, was not relevant to these proceedings. The fact that both Dr McCaughan and the claimant’s General Practitioner, during the period of the said suspension, concluded that the claimant was fit for work and he was able to return to work without further difficulty on 23 May 2008, confirmed to the tribunal that, in the period prior to the period of the said suspension, the claimant had exaggerated the difficulties he was encountering in carrying out his duties and/or his physical condition at that time. Indeed, his recovery, following the period of the said suspension, suggested, when it is compared with the complaints set out in the records of Ms Taylor prior to the period of medical suspension, a miraculous recovery on the part of the claimant.

2.8 The claimant did not dispute that, given his claim was not presented to the tribunal until 17 May 2010, it was out of time, having regard to the relevant provisions in the DDA. Further, it was not disputed that, following the claimant’s grievance which he had made in May 2008, a grievance hearing took place on 26 June 2008 and that an investigation report was prepared on 5 August 2008. By letter dated 21 November 2008, the claimant’s grievance was not upheld for the following reasons:-

“(a) Notwithstanding the fact that “medical suspension” was strictly inaccurate, it is my opinion that the decision to “suspend”, or send home, Mr McAllister, because of serious concerns about his health, was consistent with “duty of care” given the circumstances of his case.

(b) While he was not told in advance about the reason for the meeting, at which this decision was relayed, he was told why he was being suspended and to expect an OHS medical examination.

(c) The venue of the meeting with Mr McAllister was not ideal but I do not consider this, in itself, breached his contract of employment or management’s duty of care.

(d) It would have been appropriate for Mr McAllister to have been advised promptly in writing of his position, following the meeting on 29 April.

In my view, there are no grounds for upholding Mr McAllister’s grievance and my decision is, therefore, that it should not be upheld.

The tribunal considers the criticisms, as found above in relation to how the matter was handled had some merit and would hope that account will be taken of them when the respondents are dealing with a similar situation in the future.

2.9 By letter dated 28 November 2008, the claimant appealed the decision to reject his grievance and it was not disputed by the respondents that the appeal was still outstanding on 17 May 2010, when he presented his complaint to the tribunal. The respondents could provide no explanation why the appeal had not been resolved before that date and properly and fairly, in the tribunal’s opinion, did not dispute that, in the circumstances, there was therefore unreasonable delay by the respondents in dealing with the said appeal.

2.10 The claimant, at various times in the period from May 2008 until May 2010, discussed his grievance with Springfield Road Citizens’ Advice Bureau. He was somewhat vague about dates and times of such meetings and what was discussed but maintained it was primarily about the continuing failure of the respondents to deal with his grievance appeal. He contended, however, it was not until in or May 2010 that he was informed about bringing any claim to a tribunal and that, until that time, he was not aware of his ability to bring such a claim of disability discrimination to the tribunal. The tribunal found this hard to accept, given that the claimant, from the outset of his grievance in May 2008, was complaining of disability discrimination by Mr Watson in relation to his period of suspension; but the tribunal could understand, given the unreasonable delay by the respondents in concluding the internal process that his focus, in his discussions with the Citizens’ Advice Bureau, would have been how to achieve resolution/conclusion to the said internal appeal.

3. Relevant Legislation

3.1 DDA

Schedule 3

(1) An employment tribunal shall not consider a complaint made under Section 17A or 25(8) unless it is presented before the end of the period of three months beginning when the act complained of was done.

(2) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

Section 17A

(1) A complaint by any person that another person –

(a) has discriminated against him, in a way which is unlawful under this Part,

…. may be presented to an employment tribunal

(1C) where, on the hearing of a complaint under Sub-Section (1), the complainant proves facts from which the tribunal could, apart from this Sub-Section, conclude in the absence of 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.

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.

Section 4

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

(d) … by subjecting him to any other detriment.

3.2 The claimant’s claim, having been presented to the tribunal on 17 May 2010, meant the Statutory Grievance Procedure, contained in the Employment (Northern Ireland) Order 2003 (“the 2003 Order”) and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (2004 Regulations) applied to the claimant’s claim.

Regulation 15 of the 2004 Regulations

(1) Where a complaint is presented to a tribunal under a jurisdiction listed in Schedule 2 or 3 …. and –

(a) ….

(b) either of the grievance procedures is the applicable statutory procedure in the circumstances specified in paragraph (3) apply;

the normal time limit for presenting the complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired.

….

(3) The circumstances referred to in paragraph 1(b) are that the employee presents a complaint to the tribunal –

….

(b) after the expiry of the normal time limit for presenting the complaint, having complied with paragraphs 6 or 9 of Schedule 1 in relation to his grievance within that normal time limit.

There was no dispute that the claimant’s claim of disability discrimination under the DDA was a jurisdiction listed in Schedule 2 or 3 of the 2003 Order, and his grievance complied with the above paragraphs of Schedule 1 of 2003 Order (see further paragraph 1.2 of this decision).

4.1 As was recognised by the claimant, his claim, having been presented to the tribunal on 17 May 2010, was out of time, pursuant to the provisions of Schedule 3 paragraph 3 of the DDA and that for the tribunal to have jurisdiction to determine his complaint of disability discrimination, he required to persuade the tribunal that it was “just and equitable” for the tribunal to consider his claim.

4.2 However, before considering the exercise of the tribunal’s discretion on just and equitable grounds, it was necessary for the tribunal to consider further whether the claimant was entitled to rely upon any extension of time, pursuant to Regulation 15 of the 2004 Regulations.

The claimant raised his initial grievance, for the purposes of the 2003 Order, in or about May 2008 and therefore within the normal three month time limit for bringing a claim of disability discrimination. In the circumstances, the tribunal was therefore satisfied that the claimant was entitled to the benefit of an extension to time, pursuant to Regulation 15 of 2004 Regulations; but this was of utility only once and could only provide an extension of time to the claimant for a period from three to six months (see further Remploy Limited –v- Shaw (2009) UK EAT/0452/08 a claim relating to the statutory dismissal procedures but also relevant to this issue). Thus, the claimant was entitled to an extension of time from three to six months; but, as set out above, he did not bring his claim within the extended period of six months and the claim was still out of time. Therefore, the tribunal was still required to consider whether to further extend the time on the just and equitable grounds.

4.3 It has long been recognised that a tribunal has a very wide discretion in determining whether or not it is just and equitable to extend time. It was made clear in Robertson –v- Bexley Community Centre (2003) IRLR434, a tribunal is entitled to consider anything that it considers relevant, but time limits are exercised strictly in employment cases and when tribunals consider their discretion to consider a claim out of time, on just and equitable grounds, there is no presumption that they should do so, unless they can justify failure to exercise the discretion. Indeed, the Court of Appeal held that a tribunal cannot hear a complaint unless the claimant convinces it that it is just and equitable to extend time and the exercise of discretion is thus the exception rather than the rule. In the case of Apelogun-Gabriels –v- London Borough of Lambeth (2002) IRLR116, the Court of Appeal made clear that, if a claimant has deferred proceedings because the claimant is pursuing internal proceedings, this is only one factor to be taken into account.

4.4 Although the tribunal is satisfied that the claimant was at all times material to this claim fully aware of his ability to bring a claim of disability discrimination to a tribunal, it is satisfied that, having obtained the decision of the respondents in relation to his grievance in November 2008, and having brought an immediate appeal, that, in the period from November 2008 until May 2010, he was, at all times, seeking to have his appeal heard, but without any success, and that his consultations with the Citizens’ Advice Bureau were focused on this failure and not on bringing tribunal proceedings.

4.5 The tribunal does not ignore that the claimant was aware of his ability to go to a tribunal throughout this period but, equally, it cannot ignore that, at the relevant time, the provisions in relation to statutory grievance procedures were in force and that, under the general requirements contained in paragraph 12 of Schedule 1 of 2003 Order each step in the procedure would be taken without unreasonable delay. The appeal was not just delayed it was not concluded any time in the period between November 2008 and May 2010, when the claimant presented his complaint to the tribunal. Significantly, in the tribunal’s judgment, the respondents were not in a position to give any explanation either to the claimant or the tribunal for this failure; but yet were asking the tribunal, in exercising its discretion, to refuse the claimant’s application for an extension of time on just and equitable grounds. Noting that the claimant was at all times unrepresented, the tribunal, not without some hesitation, came to the conclusion that to refuse the claimant an extension of time on just and equitable grounds would be particularly harsh, in circumstances where the respondents themselves were at fault in failing to comply with the then statutory grievance procedures, by not concluding the appeal within a reasonable period of time. In this context, the tribunal was particularly mindful that the purpose of the then Statutory Grievance Procedures was to enable parties to resolve their disputes internally and, hopefully, avoid the necessity for tribunal proceedings.

Therefore the tribunal granted the claimant the extension of time on just and equitable grounds.

5.1 It has long been established that the time, under the DDA, at which the assessment must be made in relation to whether an individual is disabled is the day at which the alleged discriminatory act took place (see further Cruickshank –v- VAW Motorcast Limited (2002) IRLR24. Thus, it was for the claimant to show that, at the date of his suspension commencing on 29 April 2008 and ending on 23 May 2009, that he was a disabled person. The difficulty for the tribunal was that, although the onus to satisfy the tribunal was on the claimant, he produced little or no relevant evidence. Indeed, the claimant contended, in evidence, that, during the period of the extended phased return to work he was fit and that the records relating to his difficulties were inaccurate. This forced the tribunal to conclude that he had exaggerated the effect on his work of any physical impairment he was suffering from in relation to his wrist/leg/back arising from his accident in 2007. Indeed, at the relevant time of assessment, his own General Practitioner confirmed in a medical certificate that he was fit for work. This was also confirmed by Dr McCaughan in a report during the same period, who noted an improvement on his condition from February 2008. In addition, Dr McCaughan confirmed that, whatever had been detected on the CT scan in relation to his liver was not significant, and that fears that the claimant had expressed to Ms Taylor at his meeting in March 2008 had fortunately proved to be false, despite his understandable fears and anxieties that he expressed to her at the time. In light of the foregoing, and in the absence of any other relevant evidence, the tribunal was not satisfied that the claimant had shown, as set out in Goodwin –v- The Patent Office (1999) IRLR 4 the four conditions which require to be satisfied, namely that there was physical impairment, which was long term and had a substantial adverse effect on the claimant’s normal day to day activities. As the claimant was not a disabled person for the purposes of the DDA, the tribunal did not have any jurisdiction to determine the claimant’s claim of disability discrimination.

5.2 The tribunal is mindful that it was not possible for these preliminary issues, relating to time and whether the claimant was a disabled person, to be determined at a Pre Hearing Review (see SCA Packaging –v- Boyle (2009) IRLR 746); and all substantive issues were therefore required to be contested at this hearing. Taking this into account and having regard to the terms of the overriding objective, the tribunal considered it would be helpful to the parties, in the circumstances, to briefly set out its conclusions on the substantive issues, if the tribunal had found the claimant was a disabled person and the tribunal had jurisdiction to determine those issues.

5.3 In relation to those substantive issues, the tribunal would have concluded the claimant was not discriminated against pursuant to the DDA and his claim must be dismissed. In brief, the tribunal would have concluded he was not treated less favourably on the grounds of his disability. It would have held, in answering the “reason why” question, as set out in Lord Nicholl’s opinion, in the case of Shamoon – v – Chief Constable of the Royal Ulster Constabulary (2003)UKHL11, that the reason for the suspension was because of the respondent’s serious concerns not to compromise the claimant’s health, given its duty of care to all employees, by requiring him to continue to work in circumstances where he had informed his line manager of his liver condition, including the risk of the necessity for a transplant depending on further medical investigation; and, in circumstances were Dr McCaughan of OHS had informed the respondents he did not rule out the possibility, pending such investigation, of a link between this liver condition and the claimant’s complaint of fatigue when carrying out his duties at work. The tribunal was satisfied that any employer faced with the same circumstances with a non disabled person, would have taken the same action to suspend the employer from work, to ensure the safety and health of that employee until the medical position had been able to be further investigated and/or clarified (see further JP Morgan Europe Limited –v- Chweidan (2011) IRLR673. Further, the tribunal was not satisfied that the claimant had shown that his suspension, in such circumstances, amounted to a detriment, in light of the judgment in Shamoon, where it was held it was necessary to show that, by reason of the act complained of a reasonable worker would or might take the view that he had thereby been disadvantaged in the circumstances where he thereafter had to work. There was no evidence of any such disadvantage to the claimant.

Chairman:

Date and place of hearing: 28 November 2011 and 29 November 2011, Belfast

Date decision recorded in register and issued to parties: