Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  1654/11

 

 

 

CLAIMANT:                      Mary McKittrick

 

 

RESPONDENT:                Department of Social Development

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant’s claim of disability discrimination is upheld in part and the respondent is ordered to pay the claimant £1,500 plus £180 interest totalling £1,680 by way of remedy for her injury to feelings.

 

Constitution of Tribunal:

President:              Ms E McBride

Panel Members:     Mr D Walls

                              Ms L Torrans

 

Appearances:

The claimant appeared in person.

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

 

Reasons

1.       On 19 July 2011 the claimant presented a claim to the industrial tribunal in which she made a complaint of disability discrimination against the respondent.  In her claim form, the claimant stated that she suffers from tinnitus and fibromyalgia which in summary causes her to have difficulties with hearing, low self-esteem, depression and difficulties with concentration and understanding.  On 24 August 2011 the respondent presented a response.  The respondent did not dispute that the claimant was a disabled person but denied that the claimant had been discriminated against on the ground of disability as alleged or at all. 

 

2.       On 19 December 2011 a Case Management Discussion was conducted to:-

 

(a)      identify the precise issues which the tribunal has to consider;

 

(b)      consider the use of witness statements and their exchange; and

 

(c)      agree dates for a Hearing.

 

3.       The parties agreed the legal and factual issues which were to be determined by the tribunal and they were attached to the Record of that Case Management Discussion, as follows.

 

“STATEMENT OF LEGAL ISSUES

 

1.       Did the respondent subject the claimant to unlawful discrimination contrary to Section 4(2) of the Disability Discrimination Act 1995?”

 

STATEMENT OF FACTUAL ISSUES

 

(a)     Unwelcome comments from her manager.

 

(b)      Her manager belittling her and shouting at her in particular an incident on 21 January 2011.

 

(c)      Her manager failing to convey critical information to her that had been announced over the Tannoy.

 

(d)      Her manager denying her the option of evacuation on foot rather than on an evacuation chair in the event of an evacuation and ordering her to get in to the chair in the event of an evacuation. 

 

          With respect to each of those:-

 

(i)       Upon what date did the incident complained of take place?

 

(ii)      Does the incident complained of represent a continuing act of discrimination?

 

(iii)     If not, was a written grievance lodged with the respondent within the appropriate time limits with respect to the alleged failure (within four months of the matter complained of)?

 

(iv)     If the answer to (iii) is “Yes”, was a claim made to the tribunal within the appropriate time limits (within six months of the incident complained of)?

 

(v)      If the answer to (iv) is “No”, should the Tribunal exercise its discretion to extend time on the grounds that it is just and equitable to do so?

 

(vi)     If the answer to (ii) or (v) is “Yes” what actually happened and was the claimant discriminated against on that date on grounds of her disability?

 

3.       What was the effect of the alleged treatment on the claimant?

 

4.       What loss has the claimant suffered?”

 

          It was ordered, by consent, that the direct evidence of all witnesses would be given by way of witness statements which would be read by the tribunal prior to the commencement of the Hearing and the case would proceed by way of cross-examination.

 

The relevant legal provisions

 

4.       Section 3A(5) of the Disability Discrimination Act 1995 defines direct discrimination as follows:-

 

                    “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 3B defines harassment as follows:-

 

“(1)    For the purposes of this Part, 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.

 

 (2)    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 should reasonably be considered as having that effect.”

 

Section 4(2) provides:-

 

          “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; 

 

(b)     in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;

 

(c)     by refusing to afford him, or deliberately not affording him, any such opportunity; or

 

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

 

          Article 4(3) - It is also unlawful for an employer, in relation to employment by him, to subject to harassment –

 

                    (a)      a disabled person whom he employs; or

 

                    (b)      a disabled person who has applied to him for employment.

 

          Section 17(1B) provides:-

 

“Where, on the hearing of a complaint under subsection (1), 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.”

 

5.       The respondent accepted that the claimant was a disabled person for the purpose of the Disability Discrimination Act 1995 and did not dispute her direct evidence (in her witness statement) that she had been diagnosed with rheumatoid arthritis, angina, mini strokes (TIAs), depression, poor communication, mobility problems, visual disturbances and that she was eventually diagnosed with fibromyalgia and suffered from fibrofogs.  Nor did the respondent dispute the claimant’s direct evidence that she suffered from tinnitus or her other direct evidence in relation to her medical conditions and the effects of them and the tribunal accepted the claimant’s evidence in those regards.  The claimant accepted that the respondent had made reasonable adjustments in light of her disabilities. 

 

6.       The respondent denied that the conduct alleged by the claimant in the first four factual issues had occurred, as alleged or at all, or that she had been unlawfully discriminated against contrary to Section 4(2) of the Disability Discrimination Act 1995.  Therefore before considering the agreed legal issue of whether the claimant was subjected to unlawful discrimination contrary to Section 4(2) of the Disability Discrimination Act 1995, the tribunal considered whether the claimant had proved the allegations made by her in respect of the first four factual issues on a balance of probabilities, as she is required to do.

 

Sources of Evidence

 

7.       The claimant gave evidence on her own behalf.  

 

The following persons gave evidence on behalf of the respondent:-

 

Mrs Hill, the claimant’s line manager at the relevant time;

Ms Conway, Deputy Principal;

Ms Quinn, Equal Opportunities Officer at the relevant time;

Ms Toal, Stress Enquiry Officer;

Mr McKeown, Departmental Equal Opportunities Officer;

Mr Hobson, the claimant’s line manager from the commencement of her employment in May 2006 to March 2007; and

Mr Stinson, Mrs Hill’s line manager. 

 

The tribunal was also referred to a number of documents by the parties, and received submissions from the parties which it took into account in so far as they related to the evidence adduced during the hearing in relation to the issues to be determined. 

 

8.       At the outset of the Hearing Mr McAteer pointed out that the claimant was objecting to the inclusion of a couple of documents in the Bundle on the ground that they were not relevant.  Mr McAteer indicated that the respondent considered that the documents were relevant.  He pointed out that, in particular, the claimant was alleging that the signature on the document entitled ‘Record of informal chat with Mary on the 28 October 2010’ was not her signature.  Mr McAteer stated that the respondent ‘strongly refuted’ the claimant’s allegation that the signature on the document was not hers and was ‘adamant’ that it was.  Mr McAteer stated that the respondent had only discovered shortly before the Hearing (after the claimant received the bundle of documents and had gone through it) that the claimant was disputing that she had signed the document and, if necessary, the respondent would be happy to have the claimant’s signature examined forensically to assist the tribunal to determine who ‘has and who hasn’t been correct in their evidence to the tribunal’; although this may not be necessary given the context of the document.   

 

9.       The claimant gave evidence, on affirmation, that she had never been shown a copy of the document, that she would never have signed it because she disputed its contents and that the signature on it was not her signature.  In support of her evidence the claimant referred the tribunal to a number of documents which she had signed.

 

10.     During Mr McAteer’s cross-examination of the claimant in relation to her signature, the President pointed out that it would be preferable to have the signature examined by a handwriting expert before the tribunal made any finding in relation to it because it could have a large bearing on the credibility of the claimant and Mrs Hill.  The parties agreed that the signature should be so examined and the respondent undertook to pay for the examination to be carried out. 

 

11.     Following the claimant’s evidence, and before the signature was forensically examined, Mrs Hill, the claimant’s line manager, gave evidence, on oath, on behalf of the respondent.  Her evidence in relation to the signature was that:-

 

(i)       she had an informal meeting with the claimant on 26 October 2010;

 

(ii)      she made a note of the meeting on 28 October 2010 because she felt that the issues that were discussed at the meeting were important enough to keep a note;

 

(iii)     she signed the document initially; and

 

(iv)     she then passed it across her desk to the claimant’s desk and she saw the claimant sign it.

 

12.     After the respondent’s witnesses had given their evidence, the Hearing was adjourned to enable the disputed signature to be forensically examined.  The disputed signature was examined by Mr Stephen Maxwell, a forensic scientist who holds a diploma in Forensic Document Examination and who has been working as a Forensic Handwriting Expert and Document Examiner since 1976.  Having examined the disputed signature and compared it with specimen signatures and handwriting attributed to the claimant, Mr Maxwell stated that there was no evidence to show that the claimant had written the disputed signature and that in his opinion it was a forgery.  Mr McAteer accepted that, in light of the forensic scientist’s expert opinion, where the only evidence before the tribunal on a factual issue was that of the claimant and Mrs Hill, the tribunal would undoubtedly prefer the claimant’s evidence.  Mr McAteer, as set out below, accepted that this was the situation in relation to the first factual issue.  However, in relation to the other three factual issues Mr McAteer submitted that in addition to Mrs Hill’s evidence there was evidence from other witnesses.  There was also, significantly, a number of undisputed documents together with the claimant’s witness statement and her replies under cross-examination.  Mr McAteer submitted that in light of that additional evidence the tribunal would not be satisfied that the claimant had proved the other three factual issues. 

 

The factual issues

 

Unwelcome comments from her manager

 

13.     The claimant alleged that Mrs Hill, said to another member of staff, Mr Neilly, in the claimant’s presence, that the claimant “hears what she wants to hear”. 

 

Mr McAteer informed the tribunal, during his closing submission, that in light of:-

 

(i)       the forensic expert’s report; and

 

(ii)      the fact that the respondent had upheld this complaint after an internal investigation;

 

he had formal instructions to concede that this comment had been made and he invited the tribunal to make a formal finding of unlawful discrimination against the respondent in relation to that complaint, without consideration of any jurisdictional issue. 

 

Her manager belittling her and shouting at her including in particular an incident on 21 January 2011. 

 

14.     The claimant gave evidence that while she was typing Mrs Hill leaned across the desk towards her, hammered her finger on the desk, shouted at her to look for a missing purple folder and to take a member of staff who was wearing a purple cardigan with her to remind her of the colour of the folder when looking for it.

 

          The respondent accepted that Mrs Hill had leaned towards the claimant and that she had asked the claimant firmly to go and look for a missing folder.  However, the respondent denied that Mrs Hill had leaned across the desk, hammered her finger on the desk or shouted at the claimant.  The respondent accepted that Mrs Hill had suggested to the claimant that she take the cardigan belonging to a member of staff with her when looking for the folder, as it was the same colour as the missing folder.  However, the respondent claimed that this was after Mrs Hill and the claimant had both jokingly referred to the purple cardigan when asking staff if they had seen the missing folder and that Mrs Hill had suggested the claimant take the cardigan to lighten the situation, as the claimant did not look pleased when Mrs Hill told her to go and look for the folder and not to belittle or humiliate the claimant. 

 

In his closing submission, Mr McAteer made it clear that the respondent was not relying solely on Mrs Hill’s evidence but also on Mr Stinson’s evidence which corroborated Mrs Hill’s evidence.  Mr McAteer also pointed out that although the claimant had accepted on cross-examination that a number of people were present during the incident none corroborated the claimant’s version of events. 

 

15.     In light of Mr Stinson’s supporting evidence and in the absence of evidence from any of the members of staff who were present to support the claimant’s evidence, the tribunal preferred the respondent’s evidence in relation to Mrs Hill’s conduct.  The tribunal is therefore satisfied that the folder in question had been mislaid in December 2010 and again in January 2011.  On 19 January 2011 the Head of Branch, Mr Harvey, asked Mrs Hill about the whereabouts of the folder.  On that same date Mrs Hill explained to the claimant that the Head of Branch was looking for the folder and as the claimant was responsible for it, asked her to look for it.  Mrs Hill spoke to the claimant on a number of occasions that day about looking for the folder.  Mrs Hill asked the claimant for an update on the following day, 20 January 2011 and again on 21 January 2011.  The tribunal is satisfied that after Mrs Hill had been asked again by Mr Harvey if the folder had been located, she again approached the claimant.  The tribunal is satisfied that Mrs Hill leaned towards the claimant so that the claimant could hear her but that she neither shouted at the claimant nor hammered her finger on the desk.  The tribunal is also satisfied that Mrs Hill asked the claimant firmly to go and look for the folder, not because of her disabilities, but because apart from sending e-mails to staff, the claimant did not appear to have done very much to locate the folder and did not appear to Mrs Hill to be particularly interested in finding it.  The tribunal is not therefore satisfied that the claimant was subjected to unlawful discrimination on the ground of her disabilities in respect of that part of the conversation which took place on 21 January 2011. 

 

16.     The tribunal is also satisfied that Mrs Hill did suggest to the claimant that she take the cardigan belonging to another member of staff with her when looking for the folder but that she did so to lighten the situation because the claimant did not look pleased when told to go and look for the folder and because the claimant and Mrs Hill had both earlier noticed that a member of staff’s cardigan was the same colour as the folder.  She also made the suggestion because the claimant and Mrs Hill had both jokingly referred to the purple cardigan when asking staff if they had seen the missing folder.  In those circumstances the tribunal is not satisfied that this comment could reasonably have been perceived by the claimant as amounting to unwanted conduct which had the effect of belittling or humiliating her within the meaning of Section 3B of the Disability Discrimination Act 1995.  The tribunal is not therefore satisfied that the claimant was unlawfully discriminated against in respect of that part of the conversation either.    

 

Her manager failing to convey critical information to her that had been announced over the tannoy.

 

17.     The claimant alleged that during a power cut staff were informed, by way of a tannoy announcement, that they were to use the toilet facilities at an adjacent hotel.  The claimant claimed that because of her hearing difficulties she did not hear the announcement and that Mrs Hill, who was aware of her hearing difficulties, did not convey the message to her.

 

18.     The respondent denied that any such tannoy announcement had been made.  In his closing submission, Mr McAteer made it clear that the respondent was not relying solely on Mrs Hill’s evidence in relation to this factual issue.  Mr McAteer submitted that the respondent was also relying on Mr Stinson’s evidence and on the claimant’s acceptance, on cross-examination, that she did not in fact know whether any such tannoy announcement had been made at all which destroyed the credibility of her complaint.

 

19.     Even without consideration of Mr Stinson’s evidence which did support Mrs Hill’s evidence, the tribunal is not satisfied that the claimant has proved, on a balance of probabilities, that the alleged tannoy announcement was made, for the following reasons:-

 

(1)     The claimant was not able to give direct evidence that she heard the alleged tannoy announcement being made because, as set out in her witness statement, she was unable to hear it because of her hearing difficulties.

 

(2)     During cross-examination, although the claimant accepted that some other members of staff had told her that they were going to the adjacent hotel to use the toilet facilities, she did not call any of them to substantiate her claim that the alleged tannoy announcement had been made.

 

(3)     During further cross-examination the claimant accepted that she made this claim even though she did not know if a tannoy announcement had been made.

 

(4)     During further cross-examination the claimant stated that after she had returned from the hotel to her place of work, a lady from another section who had also been over to the hotel came to the claimant’s section and asked why no one had told the claimant to go to the hotel.  During further cross-examination the claimant contradicted this evidence and stated that the woman asked Mrs Hill why she had not told the claimant about the tannoy announcement to which Mrs Hill replied that she had.  Leaving aside this contradiction in the claimant’s evidence, the tribunal is not satisfied in the absence of credible supporting evidence from this lady that she would assume the claimant had not heard the alleged tannoy announcement in light of the fact that they were both using the hotel toilet facilities at the same time.   

 

          As the tribunal is not satisfied that the claimant proved this allegation, the legal issue of whether or not it amounts to disability discrimination does not arise.

 

Her manager denying her the option of evacuating on foot rather than on an evacuation chair in the event of an evacuation and ordering her to get in the chair in the event of an evacuation.

 

20.     It is common case that one of the adjustments the respondent made for the claimant was to put a Personal Emergency Egress Plan (PEEP) in place which set out the procedure to be followed for the claimant’s evacuation from the building should that be necessary and to review and, if necessary, update it on a regular basis.

 

21.     The claimant alleged that after Mrs Hill became her line manager, which was in September 2009, she announced to the claimant that as the Department had paid a lot of money for the evacuation chair the claimant should be in it every time there was an evacuation.  The claimant also alleged that although she told Mrs Hill that the arrangements under her PEEP were that she could leave on foot if she felt able to do so, Mrs Hill insisted that the claimant would be in the chair and that if she did not get into it of her own free will, she should be made to as she would be putting people’s lives at risk.  The claimant also claimed that Mrs Hill continued to bring this up when she brought the claimant in for meetings. 

 

22.     The respondent denied this complaint.  In his closing submission, Mr McAteer submitted that in light of the inconsistencies in the claimant’s evidence, the tribunal could not be satisfied that she has established sufficient evidence to require Mrs Hill to rebut her allegation on behalf of the respondent.  In other words even if the tribunal attached no weight to Mrs Hill’s evidence, it could not be satisfied that the claimant had proved this complaint in light of inconsistencies in her own evidence.

 

23.     The tribunal is satisfied that there were inconsistencies in the claimant’s evidence, both oral and documentary, and in light of them, even though it attached no weight to Mrs Hill’s evidence, could not be satisfied that the claimant had proved this allegation.  One key example relates to the claimant’s PEEP.  Although the claimant could not remember the exact date of this incident, she confirmed in cross-examination (as during her grievance interview), that it happened between September 2009 and Christmas 2009, shortly after Mrs Hill became her line manager.  During cross-examination the claimant confirmed that it was the first thing Mrs Hill did when she became the claimant’s line manager that concerned her and that the incident occurred in December 2009.  The claimant’s evidence that the arrangements under the PEEP in force for her at that time provided for her to leave on foot was completely inconsistent with the PEEP which was in force from 7 July 2009 to 29 November 2009 and which had been drawn up with the agreement of the claimant and with the PEEP in force from 30 November 2009 to June 2010 which had also been drawn with the agreement of the claimant.  Both plans provided that in the event of an evacuation the claimant would leave the building in an evacuation chair.  The claimant’s evidence was also inconsistent with Mr Harvey, the Head of Branch’s instruction, dated 30 November 2009, to all relevant staff that in the event of an evacuation (real, false alarm or practice) the claimant would be evacuated using the evacuation chair provided.  The claimant accepted during cross-examination that she agreed with Mr Harvey’s instruction and that it was appropriate at the time i.e. between 30 November 2009 and June 2010, when the PEEP was reviewed again.  The claimant’s evidence was also inconsistent with the information the claimant had provided on 30 November 2009 in the PEEP questionnaire that she could not move quickly in the event of an emergency, that she found stairs difficult to use and that she did need assistance to reach her assembly point in an emergency evacuation,.

 

24.     Even if the alleged incident had occurred after June 2010 when the PEEP in place provided for the claimant to evacuate on foot, if she felt able to do so, her allegation is totally inconsistent with her acceptance during cross-examination that there had been a number of evacuations after that date and on no occasion did Mrs Hill deny her the option of evacuating on foot.

 

          As the tribunal is not satisfied that the claimant proved this allegation, the legal issue of whether or not it amounts to disability discrimination does not arise. 

 

Conclusion

 

25.     For the reasons set out above, the tribunal is satisfied that the respondent unlawfully discriminated against the claimant on the ground of her disability through Mrs Hill’s comment to another member of staff, in the claimant’s presence, that the claimant “hears what she wants to hear”.  The claimant’s claim in respect of the remaining factual issues is dismissed. 

 

Compensation

 

26.     The tribunal is satisfied that it would be just and equitable to order the respondent to pay compensation to the claimant for injury to feelings.  In determining the appropriate award, the tribunal considered and balanced the following matters.  On the one hand the tribunal is satisfied that:-

 

(i)       Mrs Hill’s comment about the claimant hearing what she wanted to hear made the claimant feel uncomfortable and embarrassed;

 

(ii)      the claimant’s injury to feelings was aggravated by:-

 

(a)      the claimant having to listen to the respondent’s indication at the outset of the Hearing, through counsel, that they were “strongly refuting” the claimant’s allegation that she had not signed the document entitled “Record of informal chat with Mary on 28 October 2010”, before it had been analysed; and that they were “adamant” that it was the claimant’s signature;

 

(b)      the fact that the claimant had to then listen to Mrs Hill’s sworn evidence that she had witnessed the claimant sign the record, when the claimant had not; and

 

(c)      the fact that the respondent did not apologise to the claimant at the resumed Hearing following receipt of the forensic scientist’s opinion that the claimant’s signature was a forgery. 

 

On the other hand the tribunal is satisfied that:-

 

(i)       this was an isolated one off incident;

 

(ii)      the respondent had policies in place, including the Dignity at Work policy, which the claimant was aware of and used;

 

(iii)     as soon as the claimant made a complaint, the respondent took very prompt action to deal with it by changing the claimant’s line manager, by changing her desk and by providing mediation which the claimant accepted had been successful;

 

(iv)     the respondent investigated the claimant’s grievance thoroughly notwithstanding the successful outcome of the mediation process and upheld the complaint which forms the first factual issue;

 

(v)      the respondent did indicate at the outset of the Hearing that it was prepared to have the claimant’s signature examined forensically to assist in the determination of whose evidence was correct in relation to the disputed signature and that as soon as the tribunal indicated that it would be preferable to have it examined the respondent did so;

 

(vi)     as soon as the respondent received the report it provided a copy to the claimant and at the resumed hearing accepted the effect it was likely to have on Mrs Hill’s credibility and conceded that the claimant had been subjected to unlawful discrimination on the ground of disability in relation to the first issue;

 

(vii)    the fact that the claimant and Mrs Hill enjoyed a good relationship after Mrs Hill’s comment about the claimant hearing what she wanted to hear as evidenced by:-

 

(a)      the claimant’s e-mail of 22 December 2010 to Mrs Hill enclosing a present for her which stated:-

 

“Sonia

 

Stephs out from her appointment with the midwife and they told her that they wouldn’t be surprised if she “went” within the week! I know they’re always saying this to her but I can’t help but get all excited when it does!!!! I could be a Granny for Christmas!!!!!

 

Your pressies in the tambour beside Paul.

 

Mary”

 

 

(b)      the card from the claimant to Mrs Hill in which she stated:-

 

“Sonia

 

He heard that prayer ….

God bless you wee love

 

from

Mary”

 

                                        (c)      the Christmas present which she sent to Mrs Hill’s son.

 

27.     Having considered and balanced those matters, the tribunal assessed the claimant’s injury to feelings as being at the lower end of the lower Vento band, as updated by the Da’Bell case and concluded that the appropriate award for injury to feelings is £1,500.  In the absence of any objection from the respondent, the tribunal is satisfied that the claimant is entitled interest on that award at the rate of 8% from 21 January 2011 (the date of the last incident as no date was provided in relation to the comment) to August 2012 at 8% per annum which comes to £180.  The respondent is therefore ordered to pay the claimant £1,680 by way of compensation for injury to feelings and interest. 

 

28.     The claimant is still employed by the respondent and no claim was made in respect of loss of earning. 

 

29.     This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990. 

 

30.     In relation to the claimant’s claim in her closing submission that Mr McAteer and the President shouted at her for being dramatic during her evidence and that Mr McAteer showed contempt and disrespect for her disability during his cross-examination, the tribunal has reviewed the recording of the hearing which was provided to the parties prior to making their submissions.  The tribunal is satisfied that neither Mr McAteer nor the President shouted at the claimant.  The tribunal is further satisfied that Mr McAteer behaved with propriety throughout the Hearing. 

 

 

 

 

 

 

______________________________________

E McBride CBE

President

 

 

Date and place of hearing:  21-23 May 2012 and 15 June 2012, Belfast

 

 

Date decision recorded in register and issued to parties: