Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   1922/11

 

 

 

CLAIMANT:                      Margaret Mary O’Neill

 

 

RESPONDENT:                Department for Social Development

 

 

 

DECISION

 

The unanimous decision of the tribunal is as follows:

 

(A)     The respondent unlawfully discriminated against the claimant by failing to make a reasonable adjustment in respect of transfer.  It is ordered that the respondent shall pay to the claimant the sum of £7,500 in respect of that discrimination.

 

(B)     None of the other claims is well-founded.  Accordingly, all of those other claims are dismissed. 

 

 

Constitution of Tribunal:

Chairman:              Mr P Buggy

Members:              Ms E Gilmartin

                              Mr J Magennis

 

         

Appearances:

The claimant was represented by Mr S Mearns, Solicitor.

 

The respondent was represented by Mr A Sands, Barrister-at-Law, instructed by the Departmental Solicitors Office.

 

 

REASONS

 

1.       In her claim form, the claimant identified the respondent as the Child Support Agency.  However, the Agency is a constituent part of the Department for Social Development and the title of these proceedings has been altered accordingly.

Some key legislative provisions

 

2.       This claim is brought under the Disability Discrimination Act 1995 (“the Act”). 

 

3.       Section 4(2) of the Act makes it unlawful for an employer to discriminate against a disabled person whom it employs:

 

                  “(a)   in the terms of employment which [it] affords him;

 

                  (b)    in the opportunities which [it] affords [her] for … a transfer, … or receiving any other benefit;

 

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

 

                  (d)    … subjecting [her] to any other detriment”.

 

4.       Section 4A imposes a duty upon an employer to make adjustments.  Specifically, where “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 it to have to take in order to prevent the provision, criterion or practice from having that effect. 

 

5.       In the context of Section 4, the term “discriminate” refers to discrimination within the meaning of the Act.  For the purposes of the Act, there are four types of discrimination.  One of those types of discrimination (victimisation discrimination) is irrelevant in the context of this case.  The other three types of discrimination are relevant.  They are as follows:

 

(1)        Disability-related discrimination,

(2)        direct disability discrimination and

(3)        discrimination which consists of a failure to comply with the Section 4A duty to make reasonable adjustments.

 

Background facts

 

6.       The claimant lives in Knockloughrim, near Magherafelt.  At all material times, she has been employed in the Child Support Agency at Great Victoria Street, Belfast.  She is an administrative officer.  Her work mainly involves dealing with telephone enquiries.  She is a Northern Ireland civil servant.  The parties agree that, for the purposes of this litigation, she should be regarded as being an employee of the respondent Department.  She has been employed in the CSA since September 2004.  The parties agree that, since 2009, the claimant has been a disabled person,  because she suffers from rheumatoid arthritis. 

 

7.       She was absent from work because of sickness for a very lengthy period in 2006 and 2007.  (That absence was caused by ill-health which is unrelated to the disability which is relevant for the purposes of the present litigation).  Because of her rheumatoid arthritis, she again was absent from work from 7 September 2009 until 22 February 2011.  (That is “the relevant absence” in the present context).  At all material times, the relevant absence was covered by sick notes, from one or other of the GPs in the local health centre which she attends.  Throughout the relevant absence, the respondent’s own occupational health advisors were satisfied that the absence was appropriate, on account of her rheumatoid arthritis.  The respondent’s occupational health advisors advised that adjustments should be made for the claimant, to lessen the disadvantages arising from her disability.  The recommended adjustments consisted of the provision of a special chair, and a transfer (to a workplace nearer her home).

 

8.       In January 2011, the respondent began to consider the likelihood of the claimant remaining in her employment.  A meeting took place between the claimant and Mr Martin Keenan, of the respondent’s Attendance Management Unit, on 10 February 2011.  At that meeting, the claimant was, in essence, told that, if she did not soon return to work, she would be dismissed.  The claimant did return to work, on 22 February 2011.  She returned, even though her GP had not certified her as again being fit for work, and even though the respondent’s occupational health advisors had not advised that she was fit for work.  On 24 March 2011, the claimant was interviewed by the respondent’s Ms Rosemary Lynas.  Subsequently, on 11 May 2011, Ms Lynas issued the claimant with a written warning in respect of attendance.  The claimant appealed against that written warning, on 18 May 2011.  The appeal was decided by Mr Brian McAleenan of the respondent’s Attendance Management Unit.  He did not uphold the appeal.

 

9.       The claimant did not return to work on a full-time basis.  Instead, because of her disability, she returned on a reduced-hours basis.  For the same reason, she currently works on a reduced-hours basis, and has worked on such a basis ever since her return.

 

The acts complained of

 

10.     During the course of these proceedings, the list of acts complained of (the acts in respect of which remedies are sought) has been refined and modified.  Those acts now are as follows:

 

          (1)    The claimant asserts that no suitable chair was provided for her until 31 May 2011. 

 

          (2)    The claimant complains that the respondent did not promptly notify her of the availability of the “Access to Work Scheme”.  (See below).

 

          (3)    The claimant complains in respect of the failure of the respondent to transfer her to a workplace nearer her home.

 

          (4)    The claimant says that she ought not to have been issued with the warning in respect of attendance, in view of the failure of the respondent to draw her attention to the Access to Work Scheme at a much earlier stage, and in view of the respondent’s failure to provide her with a timely work-transfer.

 

The claims and the defences

 

11.     The claimant says that the chair non-provision was a failure to make a reasonable adjustment; that the scheme non-notification was also a failure to make a reasonable adjustment; and that the transfer failure was also a failure to make a reasonable adjustment.  She also says that the transfer failure constituted disability related discrimination.  Our understanding is that the claimant asserts that the respondent’s behaviour in relation to the warning constituted disability related discrimination and/or direct disability discrimination.

 

12.     The respondent’s defences can be summarised as follows:

 

          (1)    The respondent says that, from the time of the claimant’s return to work, a suitable chair was in fact available for her, on the floor on which she worked, and that she only had to ask, and that chair would then have been pointed out to her. 

 

          (2)    The respondent says that any failure to provide the claimant with information regarding the availability of the Access to Work Scheme does not constitute treatment which falls within the scope of Section 4(2) of the Act and that, in any event, it does not relate to a provision, criterion or practice, applied by or on behalf the respondent (in the sense in which those expressions are used in the context of Section 4A of the Act).  Accordingly, the position of the respondent is that any failure to provide timely information to the claimant regarding the availability of the Scheme is a failure which falls outside the scope of the provisions of the Act which deal with unlawful discrimination. 

 

          (3)    The respondent says that it has done all that it can reasonably be expected to do, with a view to facilitating a transfer of the claimant to a workplace closer to home.  Accordingly, the respondent says, it has not failed to make a reasonable adjustment in relation to transfer. 

 

          (4)    The respondent says that the claimant’s claims of disability-related discrimination and direct disability discrimination are both doomed to failure, because (according to the respondent), in each instance, the appropriate comparison is with the treatment which has been, or would be, accorded to a person without the claimant’s disability; according to the respondent, there is no evidence that a  person without the claimant’s disability, but whose circumstances were otherwise substantially the same as the circumstances of the claimants, would have been treated any better than the claimant was in fact treated.

 

The arguments

 

13.     Each of the parties set out their principal arguments in written submissions (“the Submissions”).  Mr Mearns provided brief written comments (“Comments”) in relation to the respondent’s Submission.  The respondent did not provide any written comments in relation to the claimant’s Submission. 

 

14.     During the course of the hearing, each party had the opportunity to comment orally upon the opposing party’s Submission.

 

15.     We are grateful to Mr Mearns and Mr Sands for the quality and clarity of their respective Submissions.  Because most of the arguments are set out in the Submissions or in the Comments, it is unnecessary to refer to all of those arguments in detail in the course of this Decision.  However, we have taken full account of all of those arguments. 

The chair

 

16.     Under this heading, we set out some findings of fact which are particularly relevant in deciding the issues relating to the chair.  However, in deciding those issues, we have taken account of all of our findings of fact. 

 

17.     Under this heading, we also set out some applicable legal principles, together with our conclusions on these issues.

 

18.     It is agreed between the parties that the respondent failed to make a reasonable adjustment if it failed to make a multi-function chair available to the claimant upon her return to work.   

 

19.     The parties are agreed that such a chair was available to the claimant from 31 May onwards.  The parties are in disagreement on the question of whether or not such a  chair was available to the claimant throughout the period from the date of her return to work until 31 May. 

 

20.     In deciding that factual issue, the oral testimony of the claimant, of Mr Stewart (her immediate line manager) and of Mr O’Hagan (Mr Stewart’s line manager) was particularly relevant. 

 

21.     Mr O’Hagan testified that he had made sure that a suitable chair was available, on the floor on which the claimant worked, prior to her return to work.  We believed that testimony.  During the relevant period (the period from the date of the claimant’s return to work until 31 May 2011), the claimant was working much reduced hours and was accordingly only at work on a couple of days each week.  In her oral testimony, the claimant told us that, during the relevant period, a suitable chair was situated at her workstation only on one occasion.  We also believe that testimony. 

 

22.     Mr Mearns invited us to doubt the credibility of Mr Stewart as a witness, on the basis (as Mr Mearns pointed out) that Mr Stewart’s evidence was in some respects vague and hesitant and internally inconsistent.   We did have reservations about the clarity and accuracy of some aspects of Mr Stewart’s evidence.  There was a conflict of evidence between Mr Stewart’s testimony on the one hand, and the claimant’s testimony on the other hand, on the question of whether or not the claimant had ever approached Mr Stewart, to warn him that the chair was not available, and on the question of Mr Stewart’s allegedly inadequate reaction to that approach.  On balance, we are satisfied that the claimant did not approach Mr Stewart to point out that the chair was not available to her. 

 

23.     We are satisfied that a chair was available, on the floor on which the clamant worked, at all material times, but that nobody ever took the trouble to say to the claimant that the chair was on the floor, or to point it out to her. 

 

24.     On balance, we have concluded that the respondent was not in breach of any relevant reasonable adjustment duty, in relation to the provision of a chair.  At all material times, a chair was, in reality, available for her.  During much of the relevant period (the period up to 31 May) the chair was not set out at her workstation.  However, we are satisfied that, if the claimant had drawn the matter to the attention of senior management in a timely fashion, a suitable chair would have been given to her, on every day on which she worked, throughout the relevant period. 

25.     Accordingly, the claim in respect of the non-availability of the chair fails because it is not factually well-founded. 

 

The Access to Work Scheme

 

26.     Under this heading, we set out some findings of fact which are particularly relevant in the context of the “Access to Work Scheme” (“the Scheme”) issues.  However, in deciding these issues, we have had regard to all of our findings of fact. 

 

27.     Under this heading, we also set out some legal principles which are relevant in the context of the Scheme issues.  Finally, under this heading, we also set out our conclusions on the Scheme issues. 

 

28.     The Scheme is operated by the Department for Employment and Learning.  It is potentially available to all disabled employees, regardless of whether they work in the public sector or in the private sector.  A wide variety of information, support and assistance is provided under the Scheme.  In the present context, the Travel to Work provisions of the Scheme is the relevant aspect of the Scheme.  Under that aspect of the Scheme, temporary support can be provided when a person with a disability incurs extra costs in travelling to and from work because of disability. 

 

29.     By the time the claimant returned to work in February 2011, she had become aware of the Travel to Work benefits, and had taken steps to avail of them.  All of that occurred due to the claimant’s own initiative.  She was not informed by the respondent, at any time, of the availability of the relevant support under the Scheme. 

 

30.     By availing of the Scheme, the claimant has been able to travel by taxi, at public expense, to and from work, from Magherafelt to Belfast, on every working day since she returned to work in February 2011.

 

31.     In his Submission, Mr Mearns has formulated the claimant’s complaint in relation to the Scheme in the following terms:

 

                  “[The respondent] failed to make a reasonable adjustment for the claimant by not informing her of the Access to Work Scheme and if need be assisting her in gaining access to the Scheme”.

 

32.     On the facts of this case, it is clear that the claimant never needed the assistance of her employer for the purpose of gaining access to the Scheme.  She was perfectly capable of accessing the Scheme without the assistance of her employer, and she did so.  So the need did not arise.  So that aspect of the Scheme claim fails, because it is not factually well-founded. 

 

33.     The remaining question is whether, as the claimant contends, the respondent failed to make a reasonable adjustment for her by not informing her, in a timely manner, of the existence of the relevant aspect of the Scheme. 

 

34.     We must make it clear that, in our view, the respondent was at fault in not promptly informing the claimant about the existence of the travel to work support aspects of the Scheme.  That ought to have been done relatively soon after the claimant became unfit for work.

35.     However, in our view, the provision of information in relation to the availability of the travel support was a task which is not within the scope of the reasonable adjustments duty which is imposed by the Act.  We have arrived at the latter conclusion against the following background, and for the following reasons. 

 

36.     We refer again to the provisions of section 4(2) of the Act, which have already been mentioned at paragraph 3 above.  First, in our view, a failure to provide timely information in relation to the existence of the relevant Scheme provisions cannot properly be regarded as discrimination “in the terms of employment” [our emphasis] which the respondent afforded to the claimant.  Secondly, the reference at Section 4(2)(b) to “opportunities” is a reference to opportunities which are provided by the employer itself.  Thirdly, the reference in Section 4(2)(c) to “any such opportunity” is a reference only to an opportunity which falls within the scope of Section 4(2)(b). Fourthly, in our view, an employer does not subject its employee to a “detriment” within the meaning of Section 4(2)(d) merely by failing to inform that employee of state-funded assistance. 

 

37.     We are also satisfied that the Section 4A duty does not encompass a failure on the part of an employer to inform an employee of the availability of publically-funded travel assistance, which is available to all individuals, regardless of whether they work in the private sector or in the public sector.  We are strengthened in that view by the comments of Morison J  in Kenny v Hampshire Constabulary [1999] IRLR 76.  In the course of his judgment in that case, at paragraph 40, he commented upon the scope of the duty to provide reasonable adjustments, in the Act as originally enacted.  In that context, he made the following comments:

 

                  “For example, the provision of transport for getting to and from the employer’s premises is outwith the section.  If a disabled person needs assistance from another to get to work, that is for him/her to provide and pay for, but not the employer’s responsibility.  The effect of a failure to provide this service may deprive the disabled person of an opportunity to be employed in an undertaking, without involving a breach of the Act.  Therefore the fact that the failure to make an arrangement will have this effect does not, of itself, bring the arrangements within the Act.  In other words, not every failure to make an arrangement which deprives an employee of a chance to be employed is unlawful.  …  Parliament had in mind what might be called “job-related” matters.  In other words, Parliament is directing employers to make adjustments to the way the job is structured and organised so as to accommodate those who cannot fit into existing arrangements”.

 

          We consider that those comments provide support for the proposition which we have set out at the beginning of this paragraph.  In arriving at that conclusion, we have taken account of the following.  First, the comments at paragraph 40 of Kenny were, we note, not strictly necessary for the determination of the issues which the Employment Appeal Tribunal actually had to decide in Kenny.  Secondly, we note that, in that case, the Tribunal was construing the provisions of section 6 of the Act as originally enacted, and there are some significant differences between the wording of section 6 (which dealt with the duty to make reasonable adjustments, in the Act as originally enacted) and the wording of section 4A. 

 

38.     Section 4A had been enacted by the time that the Fifth Edition of Brian Doyle’s “Disability Discrimination Law and Practice” had been published.  Nevertheless at Page 91 of that Edition, Mr Doyle stated that the reasonable adjustments duty:

                  “… is not intended to cover everything an employer could do (eg arranging transport to and from work ….”

 

          and cited Kenny in support of that proposition.

 

39.     Mr Mearns has argued that paragraphs 8.19 and 8.20 of the Equality Commission’s “Disability Code of Practice: Employment and Occupation” provide support for the argument that the provision of timely information in respect of the availability of Scheme assistance is something which is within the scope of the section 4A duty to provide reasonable adjustments.  However, those paragraphs do not contain any explicit assertion that the provision of such information is within the scope of the relevant duty.  Furthermore, we do not read those paragraphs as containing any implicit assertion to that affect.  Instead, in our view, the main thrust of the relevant paragraphs of the Code is as follows.  First, employers are informed that, in deciding on issues of costs and practicality, in the context of the provision of a potential adjustment, they should take account of the availability of funding from the Scheme.  Secondly, employers are warned not to abdicate their responsibilities for making their own reasonable adjustments, merely because of the existence of the Scheme. 

 

40.     In any event, even if we are wrong in our conclusions as to the implications of paragraphs 8.19 and 8.20 of the Code, we note that the Code cannot have the effect of expanding the scope of the provisions of the Act.  (Instead, the main purpose of the relevant provisions of the Code is to provide advice and guidance as to how those duties which are actually within the scope of the Act can be implemented). 

 

41.     If, contrary to the conclusions which we have set out above, the provision of timely information in relation to the travel to work provisions of the Scheme was within the scope of the section 4A duty, the respondent would have been guilty of a breach of that duty (because there was no good reason for the failure by the respondent to provide timely information in relation to the existence of the relevant aspect of the Scheme). 

 

The warning

 

42.     In relation to the warning, the claimant’s claim was formulated, by Mr Mearns, in the Submission, in the following terms:

 

                  “The decision to issue the claimant with a written warning is flawed and cannot stand if the Tribunal concludes that there has been a failure to make reasonable adjustments [in relation to the Scheme or in relation to the transfer]”.

 

43.     In effect, the claim in respect of the warning is a disability-related discrimination claim.  That claim is hopeless because we are satisfied that the appropriate statutory comparator (a person who had substantially the same record of absences as the claimant, for a reason which had nothing to do with disability) would have been treated, in the context of the warning, in exactly the same way as the claimant was treated.  For the same reason, any direct disability discrimination claim (in respect of the warning) also fails.

 

44.     As already noted above, we have concluded that the respondent discriminated against the claimant by failing to make a reasonable adjustment in the context of her transfer application.  Against that background, it is noteworthy that the effect of subsection (6) of section 3A of the Act is that a person who is under a duty to make a relevant reasonable adjustment in relation to a disabled person cannot justify disability-related discrimination if he fails to comply with that reasonable adjustment duty.  However, in the context of the disability-related discrimination claim in respect of the warning, the question of justification does not arise at all, because we are satisfied that the giving of the warning did not constitute less favourable treatment of the claimant (in comparison with the treatment which would have been accorded to an appropriate statutory comparator).    

 

The transfer and reasonable adjustments

 

45.     Under this heading, we have set out some findings of fact which are particularly relevant in the context of this particular issue.  However, in arriving at conclusions in relation to this issue, we have had regard to all of the findings of fact which are set out in this Decision. 

 

46.     Under this heading, we have also set out statements of some applicable legal principles.  Finally, we have also set out our conclusions of this issue.

 

47.     Section 4A has already been referred to above.  In effect, that section provides as follows.  Where “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 [it] to have to take in order to prevent the provision, criterion or practice … having that effect”.

 

48.     The claimant’s workplace is Belfast.  Her home is close to the town of Magherafelt.  Soon after she became ill with the condition which causes her disability, she applied for a transfer to Antrim, Ballymena or Magherafelt.  Soon after the relevant period of absence had begun, the respondent’s own occupational health advisors recommended that the claimant should be transferred, if practicable to a workplace nearer home.  Such a transfer was referred to by the OHA as a “reasonable adjustment”.

 

49.     The claimant was placed on the transfer list.  That transfer list is a list which covers all transfer-applicants, and all vacancies, throughout the Northern Ireland Civil Service, throughout Northern Ireland.

 

50.     The claimant has never subsequently been offered any transfer opportunity, in any of her three areas of choice. 

 

51.     According to the transfer list rules, people who are surplus to requirements in their existing work location are given priority over people with disabilities, while disabled persons are given priority over all other candidates for transfer.

 

52.     Our understanding is that for the purposes of the present proceedings, Mr Sands on behalf of the respondent, accepted the following: (1) the requirement that the claimant must work in Belfast was a provision, criterion or practice applied by the respondent.  (2) That requirement placed the claimant at a substantial disadvantage in comparison with persons who are not disabled.  (3) From the date on which the OHA first recommended a transfer, until the date of the commencement of the present proceedings, it was the duty of the respondent to take such steps as it was reasonable, in all the circumstances of this case, for it to have to take in order to prevent the relevant provision, criterion or practice having that effect. 

 

53.     Accordingly, in the context of the transfer issue, the central question for the tribunal is whether the respondent has taken all such steps as it was reasonable, in all the circumstances of this case, for the respondent to have to take in order to prevent the work location from placing the claimant under the relevant disadvantage.

 

54.     Section 18B of the Act amplifies the requirements which are imposed by section 4A.  Subsection (2) of section 18B provides a list of examples “of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustment”.  That list includes the following:

 

                  “….

 

(c)            transferring [her] to fill an existing vacancy;

 

…

 

(e)            assigning [her] to a different place of work …

 

…”

 

55.     So what steps did the respondent take in that connection?  They put the claimant on the transfer list.  Because of the transfer rules, she was second in priority to all of those staff who had been declared surplus to requirements within their respective workplaces.  At all material times, the respondent knew that, accordingly, she was unlikely to obtain a transfer within any relatively short time period (mainly because of the numbers of Northern Ireland civil servants who, in recent years, have been declared surplus to requirements within their respective workplaces).  What else did they do in connection with the transfer request?  We are not aware of any other steps which they took. 

 

56.     It should however be noted that the respondent has made other reasonable adjustments for the claimant, unrelated to the transfer issue.  For example, it has  altered her hours of working. 

 

57.     Subsection (1) of section 18B of the Act provides guidance for determining whether it is reasonable for an employer to have to take a particular step in order to comply with a duty to make reasonable adjustments.  According to that subsection, in so determining, regard must, in particular, be had a variety of factors, which are specified on that subsection, and which include the following:

 

          (1)    the extent to which it is practicable for the respondent to take the step;

 

          (2)    the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt any of the employer’s activities; and

 

          (3)    the extent of the employer’s financial and other resources. 

         

          In determining whether the respondent has taken such steps as it was reasonable for it to take, in order to prevent the workplace criterion placing the claimant at the relevant substantial disadvantage, we must take account of the factors specified at sub-paragraphs (1), (2) and (3) above.

 

58.     We can deal with factor (3) briefly.  Clearly, the respondent had substantial financial and other resources available to it. 

 

59.     Accordingly, we are left with the following issues.  First, to what extent was it practicable for the respondent to do more in relation to the transfer?  Secondly, what were the financial or other costs which would be incurred by the respondent in doing more?

 

60.     Mr Mearns, on behalf of the claimant, argued that the respondent should have given the claimant at least equal priority with staff who were being declared surplus in their respective workplaces.  On behalf of the respondent, Mr Sands argued that this would have been inappropriate, because surplus staff were at risk of losing their jobs.  We reject the latter contention.  As the respondent accepts, throughout the relevant period, no “surplus” Northern Ireland civil servant was at any real risk of being made compulsorily redundant (although that situation may, of course, be different at some point in the future).

 

61.     However, the respondent clearly has a vital interest in making sure that it is run effectively, efficiently and economically.  The question is whether that interest outweighs the interest in achieving a timely transfer for the claimant. 

 

62.     In Kent County Council v Mingo [2000] IRLR 90, the claimant was a disabled person.  When he returned to work after a period of injury-related absence, he was found work as a supernumerary helper.  A formal recommendation was made that he should be redeployed, and he was classified as a category B redeployee under the employer’s procedures.  Category B covered staff to be redeployed on grounds of “incapability/ill-health”.  Those at risk of, or under notice of, redundancy were classified by the employer as category A and were given priority consideration for suitable or alternative employment.  In September 1996, the claimant was turned down for an internal post for which he had applied and for which he had been graded appointable.  He was told that he would have been appointed if he had been a category A redeployee.  In early 1997, he expressed interest in several vacancies, but was told they were reserved for category A.  His supernumerary post came to an end in March 1997.  He was dismissed with effect from 6 July 1997, because no post had been found for him. 

 

63.     An employment tribunal decided that the claimant had been unlawfully discriminated against because the council had failed to take reasonable steps to prevent his dismissal, by considering whether adjustments could be made to the vacant post. 

 

64.     The Employment Appeal Tribunal upheld that decision.  In doing so, the EAT made the following comments in the context of that case, about the reasonable adjustment duty:

 

                  “[24] The structure of the Act is such as to require employers to take reasonable steps to accommodate disabled staff, or those who become disabled in the course of employment, as set out in [section] 6 of the Act …

 

                  [25] Whilst we have no doubt that the council endeavoured to act in accordance with its own procedures, we agree with [the claimant’s counsel’s] submission and with the tribunal’s conclusion that they did not give effect to the employer’s obligations under the Act. 

 

                  [26] Had the council’s policy permitted the applicant to be treated as a category A redeployee, on the facts found by the tribunal, he would have been redeployed and not dismissed.  On that basis the tribunal were quite entitled to conclude that the council had been guilty of unlawful discrimination”. 

 

65.     Mr Sands has sought to distinguish Mingo from the present case, pointing out the following.  First, unlike the claimant in the present case, Mr Mingo was actually dismissed.  Secondly, Mr Sands says that, in the Mingo case, various posts were actually ring-fenced for people who were on the category A list for redeployment, and Mr Mingo (and others in category B) could not apply for those ring-fenced posts.  Thirdly, in Mingo, the tribunal had found, as a matter of fact, that had Mr Mingo been awarded category A status he would have been redeployed and not dismissed.  Fourthly, according to Mr Sands, Mingo is not authority for the proposition that all systems which give any priority to surplus staff over disabled staff are unlawful.  (Instead, the reasonableness of adjustments must be assessed on the facts of the individual case). 

 

66.     We think it will be helpful to address each of the points separately, in the order in which they are listed above.

 

67.     First, Mr Mingo was actually dismissed, and the claimant has not actually been dismissed.  True enough.  However, during the relevant period, the respondent’s surplus staff were not, in reality, at risk of dismissal either. 

 

68.     Secondly, we can see nothing in the Mingo judgment which indicates that any post was made available exclusively for Category A staff.  Instead, it seems to us that the position was that posts were made available to Category A staff in preference to Category B staff.  In other words, it seems that Category A staff were merely given priority in relation to particular posts, over Category B staff. 

 

69.     Mr Sands’ third argument relates to the question of whether or not the tribunal has to be satisfied that any relevant additional measures (over and above the measures which the respondent in this case actually took in relation to transfer) would have resulted in the claimant being allocated a post nearer to her home.  We will deal with that argument later.   

 

70.     Fourthly, we agree with Mr Sands that Mingo is not authority for the proposition that all systems that give any priority to surplus staff over disabled staff are unlawful.  We agree with the proposition that the reasonableness of adjustments must be assessed on the facts of the individual case.  We are satisfied that all that was decided in Mingo was that the industrial tribunal was not legally incorrect in deciding, as it did, that the employer in that case had in fact made insufficient efforts, in the context of the duty to make a reasonable adjustment, to transfer Mr Mingo to another post. 

 

71.     According to paragraph 19 of the respondent’s submission:

 

                  “It is a matter of fact that no posts have become available for the claimant’s preferred location since the claimant went on to the transfer pools”. 

 

72.     We do not think that that proposition has in reality been established as a matter of fact (although we bear in mind that the onus of proof is upon the claimant, not the respondent).  It is clear that no posts were made available to the claimant pursuant to the transfer procedure.  However, it is not clear that no suitable posts became vacant, during the relevant period, within any of the claimant’s preferred locations.  (If that were true, it would be a very surprising situation, given the numbers of staff who work in the Northern Ireland Civil Service in the relevant locations).  In any event, in considering what the prospects were of the relevant measures preventing the relevant substantial disadvantage, we must make a prospective assessment.  We have to consider what were the prospects, on the date or dates (during the period from January 2011 onwards) when the alleged transfer failures occurred, of the relevant measures preventing the relevant substantial disadvantage.  (See paragraphs 82 and 83 below).  Accordingly, the question of what actually happened subsequently is not the central question in relation to this aspect of the matter. 

 

73.     At paragraph 15 of the respondent’s Submission, reference was made to Archibald v Fife [2004] IRLR 651.  In that case, as Mr Sands has pointed out, the claimant had been dismissed because she could not get a transfer, whereas in this case the claimant’s lack of success in obtaining a transfer did not put her at risk of dismissal.  However, in our view, the principles which were declared in Archibald are not limited to situations in which the lack of a reasonable adjustment leads to dismissal, or to vulnerability to dismissal. 

 

74.     In Archibald, Baroness Hale delivered the leading judgment.  In her speech in that case, at paragraph 70, she made it clear that, in some circumstances, the duty to make a reasonable adjustment, in the context of a transfer, might include transferring Mrs Archibald to fill an existing vacancy at a slightly higher grade without competitive interview.  (See also paragraph 65 of the judgment).  She also indicated that the duty might include transferring Mrs Archibald to a post at a lower grade.  (See paragraph 66 of the judgment). 

 

75.     In Aylott v Stockton-on-Tees Borough Council [2010] IRLR, Mummery LJ explained the role of the reasonable adjustment duty (in the context of disability discrimination law) in the following terms:

 

                  “[70] First, the significance of s4A in disability discrimination cases.  Mr Robin Allen QC explained that, after Malcolm and the difficulties in the way of success for a claim for disability related discrimination, claimants and their expert advisors shifted their target to the failure of duty to make reasonable adjustments.  Perhaps that is what they ought to have been doing all along, as that is the concept central to the scheme of the 1995 Act.  As Lady Hale said in Archibald v Fife Council … the 1995 Act entails a measure of “positive discrimination”, in the sense that employers are required to make such adjustments as are reasonable in all the circumstances to help disabled people, which they are not required to make for others.  In some cases no-one, including the claimant, is helped by a presentation to the ET of every possible permutation of the various forms of discrimination …

 

                  [71] The second point is that it is not sensible, or even legally correct, simply to carry across from the longer established fields of discrimination law (race and gender) their principles and precedents.  The disability-related form of disability discrimination and the duty to make reasonable adjustments do not even appear in the earlier discrimination law, which, if used in deciding disability discrimination claims, may prove to be an obstacle to a proper understanding of the new law.  As Lady Hale explained in Archibald at paragraph 47, the sex discrimination legislation and the race discrimination legislation are different from disability discrimination [legislation].  The earlier legislation is based on the irrelevance of the identified differences between human beings, who are accordingly entitled to receive equal treatment and to protection from less favourable treatment on the proscribed ground of sex or race. 

 

                  [72] The 1995 Act recognises a wide range of disabilities.  It therefore provides that relevant differences between a disabled person and a person who is not disabled entitles the disabled person, in the prescribed circumstances, to receive different treatment in order to achieve overall equality, so far as reasonable practicable” [Our emphasis].

 

76.     According to the respondent’s submission, the claim in relation to the transfer application must fail because there is no evidence that any posts would have become available for the claimant, regardless of what the respondent had tried to do, and regardless of what order of priority disabled persons had on the transfer list.  (See paragraph 69 above).  However, the answer to that point is to be found in the judgment of the Employment Appeal Tribunal in Leeds Teaching Hospital v Foster UKRAT/552/10.  As the “summary”, at the beginning of that judgment, makes clear, the principle which emerges from that case is the following:

 

               “If there is a real prospect of an adjustment removing a disabled employee’s disadvantage, that would be sufficient to make the adjustment a reasonable one, but that does not mean that a prospect less than a real prospect would not be sufficient to make the adjustment a reasonable one …”. 

 

        The point is made in detail at paragraph 17 of the judgment, in the following terms:

 

               “[17]  In fact, there was no need for the [employment tribunal] to go as far as to find that there would have been a good or real prospect of Mr Foster being redeployed if he had been on the redeployment register between January and June 2008.  It would have been sufficient for the Tribunal to find that there would have been just a prospect of that …”.

 

77.     What more could the respondent have done in this case?  That question has to be answered against the following background.  The respondent had a transfer policy, under which surplus staff were given priority over disabled staff, at a time when there was a considerable number of surplus staff to be redeployed.  Against that background, in our view, it would have been reasonable for the respondent to have carried out the following steps. 

 

78.     First, the question of whether or not all the relevant managers (the managers who had vacancies which should be made available for disabled persons) were fully  complying with their duties under the transfer scheme should have been proactively monitored, at least to some extent.  In this instance, no efforts were made to assess whether individual line managers were, or were not, actually making transfer vacancies available to disabled persons.  The need for some proactive monitoring is clear, because line managers are human beings, and we take judicial notice of the reality, which is that there is a natural temptation among some line managers to avoid employing staff who have had (as many disabled persons have had) a history of lengthy sickness absences. 

 

79.     Secondly, consideration should have been given to the possibility of redeploying the claimant to some post (within her transfer areas of choice), at a slightly lower grade, or at a slightly higher grade (provided of course that she was competent to carry out the duties of any such higher-graded post). 

 

80.     We express no definitive view on the question of whether or not the current priorities within the Civil Service transfer scheme are inappropriate, having regard to the reasonable adjustment duties which exist in relation to disabled civil servants.  What we do say, however, is that the measures specified at paragraphs 78 and 79 above ought to have been taken in view of the circumstance that the current transfer policy was providing relative redeployment advantages to surplus staff, in preference to disabled staff, at a time when a large number of surplus staff had to be redeployed.

 

81.     It would of course be open to the Civil Service to revise its system of priorities, by putting disabled staff who needed transfer because of their disability, on a par with surplus staff.  The respondent argues that it has a duty, in the interests of effectiveness, efficiency and economy, to speedily redeploy surplus staff.  So it has.  However, it is worth noting that, if the claimant had been redeployed from her post at the Child Support Agency in Victoria Street in Belfast, the post from which she then transferred would then have become available to a “surplus” redeployee.  (We note that redeployees who are on the surplus list, and who remain on that list beyond a specified period of time, have a very limited choice as to the location to which they are ultimately redeployed).

 

82.     We have already referred above to the judgment of the EAT in Leeds.  As the EAT made clear in that case, in considering whether there is a duty to make a reasonable adjustment, in the context of a transfer, a tribunal has to consider what the prospects were of the relevant measures preventing the relevant substantial disadvantage.  (See paragraph 76 above).  However, as the EAT also made clear in that case (at paragraph 20 of the judgment) in considering the “prospect” issue, any tribunal is making a prospective, not retrospective, assessment.  In that connection, we also note the comments made at paragraph 102 of Chief Constable of South Yorkshire Police v Jelic [2010] IRLR 744:

 

                  “It seems to me that determining what may have happened subsequently, if the adjustment had been made, is relevant only to remedy and not to whether the adjustment proposed was a reasonable one for the respondent to make at the relevant time”.

 

83.     According to the transfer policy to which the respondent was a party, vacancies were available throughout the Northern Ireland Civil Service, to redeployees from the entire Northern Ireland Civil Service, including the respondent Department.  The Northern Ireland Civil Service, like the Trust in the Foster case, is a very large employer.  In those circumstances, we are satisfied that,  throughout the period from January 2011 until August 2011, there must have been a significant prospect that the claimant would have obtained a suitable transfer, even if only temporarily, to a vacancy (which might, for example, have been caused by illness or maternity leave) at the Administrative Officer grade, or at whatever grade is immediately below that grade, or at whatever grade is immediately above that grade, if the additional measures, as specified at paragraphs 78 and 79 above, had been adopted.  In arriving at that conclusion, we have noted that the claimant’s job role to date has been a generalist role. 

 

84.     Against that background, and for those reasons, we have decided that the respondent unlawfully discriminated against the claimant, by failing to make a reasonable adjustment, in connection with the transfer.

 

Transfer: Direct disability discrimination and disability-related discrimination?

 

85.     We are satisfied that the failure to take adequate steps with a view to achieving a transfer for the claimant (a transfer to a workplace closer to her home) did not constitute direct disability discrimination or disability-related discrimination.  We are so satisfied, against the following background and for the following reasons. 

 

86.     Direct disability discrimination only occurs when a disabled employee is treated less favourably than the employer has treated, or would treat, an actual or hypothetical statutory comparator whose circumstances, apart from the disability, are broadly analogous to the circumstances of the claimant. 

 

87.     We are entirely satisfied that, if the claimant had not been disabled, and her circumstances were otherwise substantially the same as the circumstances in which her application for a transfer was in fact considered, she would have been treated in exactly the same way as she was in fact treated, in connection with her transfer application.    

 

88.     We are also satisfied that the relevant failures in relation to the transfer do not constitute disability-related discrimination.  This is because of the effect of the decision of the House of Lords in Lewisham Borough Council v Malcolm [2008] IRLR 700.  Malcolm established the principle that, in a disability-related discrimination case, the appropriate statutory comparator is practically identical to the appropriate statutory comparator in a direct disability discrimination case.  (See above, at paragraph 87). 

 

89.     In his Submission, Mr Mearns set out the following propositions.  First, he argued that the Malcolm definition of a statutory comparator (in the context of disability-related discrimination) was incompatible with the requirements imposed upon the United Kingdom by the United Nations Convention on the Rights of Persons with Disabilities of 2009.  Secondly, he suggested that because of that incompatibility, we should regard ourselves as not being bound to follow the principle established in Malcolm.  We admire the ingenuity which has prompted Mr Mearns to put forward those propositions.  We also admire the boldness of the propositions themselves.  Nevertheless, we have no hesitation in rejecting both of those propositions. 

 

90.     First, we see nothing in the provisions of the Convention (which have been quoted extensively in Mr Mearns’ Submission) which are clearly and obviously incompatible with the Malcolm definition of a disability-related discrimination comparator.  Secondly, we are far from clear that the terms of the Convention have direct effect upon the public authorities of Northern Ireland.  In that connection, we note that, in PF and JF’s application [2011] NIQB 20, Girvan LJ, at paragraph 34 of the judgment, merely commented that Northern Ireland legislation “falls so far as possible to be construed compatibly with the undertakings of the UK under the [2009] Convention” [Our emphasis].  In other words, the judge is there merely pointing to the fact that all UK legislation has to be construed, as far as possible, in a manner which is compatible with undertakings which the UK has accepted under international treaties.  Thirdly, in any event, the views of the House of Lords as to the appropriate statutory comparator in disability-related discrimination were not views which were in any way nuanced.  Instead, those views were clear, precise and unequivocal.

 

91.     In theory, of course, strictly speaking, Malcolm may possibly not be binding upon us.  First, Malcolm was not a case which was brought under the employment provisions of the Act.  Secondly, it was not an appeal from Northern Ireland.  Thirdly, the Malcolm principle does not seem to have been the subject of comment in any Northern Ireland Court of Appeal case.

 

92.     However, in Aylott v Stockton-on-Tees Borough Council [2010] EWCA Civ 1910, the England and Wales Court of Appeal explicitly endorsed the Malcolm principle as being applicable in the context of employment discrimination cases.  (See paragraph 68 of the judgment).  We have no doubt that the Northern Ireland Court of Appeal would do the same. 

 

The remedies issues

 

93.     Only one of the claimant’s claims has been successful.  We have decided that the respondent discriminated against her, by failing to make a reasonable adjustment, in relation to transfer.  Compensation is the remedy which the claimant seeks in respect of that discrimination.  In relation to remedies, there are two issues.  First, has the claimant sustained financial loss in respect of the discrimination?  Secondly, what compensation should be awarded to the claimant in respect of injury to feelings?

 

Financial loss

 

94.     Against the following background, and for the following reasons, we have decided that the claimant sustained no financial loss as a result of the relevant discrimination.  Accordingly, she is not entitled to any compensation in respect of financial loss. 

 

95.     The claimant’s claim for financial loss is based on the proposition that she was fit for work, at some location much closer to her home (much closer than Belfast) throughout much of the relevant period of absence, if only the respondent had provided her with a workplace much closer to home.  We are not satisfied as to the correctness of that proposition.  For that reason, the financial loss fails. 

 

96.     The evidence in favour of the proposition is contained in a letter dated 21 February 2012, from Dr J Diamond, a GP at the claimant’s local medical centre in Magherafelt (which is the medical centre at which the claimant has attended for many years), a letter dated 5 March 2012 from Dr A Walls (who is also a GP at the same centre), and a brief contemporaneous note provided by Dr Diamond, which accompanied the 5 March letter. 

 

97.     The Diamond letter of February 2012 mainly consists of an account of the claimant’s medical history.  The key paragraph is the last paragraph of that letter:

 

                  “Although Margaret still suffers from [symptoms of her disability], had the transfer to a local office, or an alternative such as the taxi service become available earlier, I believe there is every likelihood that Margaret would have been fit to attempt a very gradual return to work, beginning on small hours due to the length and nature of her illness, with close monitoring and management of her condition”.

 

98.     As was pointed out during the course of the hearing, the February Diamond letter does not contain any opinion as to the prospects of the claimant actually being fit to return to work in the event of a transfer to a local office having become available (as distinct from being fit merely to attempt a return to work).

 

99.     As a result of that comment, the claimant obtained the March 2012 letter from Dr Walls.  The Walls’ letter mainly contains descriptive material.  It seems to have been based on a perusal of her patient records, and upon a perusal of the written opinion provided by an OHS doctor in a report dated 25 March 2010.  The key paragraph in the March letter is as follows:

 

                  “In my medical opinion Margaret was fit to return to work with adjustments in place of either Access to Work or a transfer, but only on condition that at least one of these adjustments had been established, prearranged and made available for Margaret to use.  She was fit to return immediately upon their availability”.

 

          As already noted above, the Walls’ letter was accompanied by a note from Dr Diamond, which was to the following effect:

 

                  “Further to my letter dated 21 February 2012, I confirm as suggested in the letter that had appropriate transport been available earlier Margaret could have returned to work”.

 

100.   The March Diamond and Walls advice was supplemented by the claimant’s oral testimony during the hearing, when she was adamant that she would have been fit to return to work, at a much earlier stage during the relevant period of absence, if she had been transferred to a workplace nearer home.

 

101.   The 2012 medical advice and the 2012 testimony can usefully be compared and contrasted with the medical advice which was made available contemporaneously throughout with the relevant absence, and with the comments which the claimant was making to the employer during her absence and soon after her absence. 

 

102.   Throughout the relevant period of absence, the claimant provided medical certificates of unfitness from her GP.  Most of those certificates were provided by Dr B P Glancy (who is a GP at the Magherafelt surgery).  All of those medical certificates unequivocally advised the claimant that she should refrain from work.  Some of those certificates included (in their standard form) provision for advice to the effect that the patient would be fit for work only if adjustments were made available.  In no instance did Dr Glancy recommend that the claimant would be fit for work subject to any such adjustments being made.  Instead, on all occasions, he certified the claimant as being unconditionally unfit for work.  In a form which Dr Glancy completed on 23 June 2010, in connection with the claimant’s Employment and Support Allowance application, he stated that the claimant had “… genuinely active, progressive RA-unfit for work”.  We note that, during the course of the comments which he made in that form, Dr Glancy never stated or implied that the claimant’s unfitness was in some way limited to situations in which she was working far away from home.

 

103.   When the claimant was seen by Occupational Health Service doctors, during the course of relevant absence, those doctors regarded her as being unconditionally unfit for work.  (In other words, they regarded her as being unfit for work, regardless of the location of the workplace).

 

104.   On 16 September 2010, Mr Gareth McKeown, of the respondent’s Attendance Management Unit, carried out a home visit to the claimant.  On the following day, he completed a report of the outcome of that visit.  We are satisfied that that report is an accurate account of what occurred, and that it accurately reflects what the claimant told Mr McKeown on that occasion.  According to the report:

 

                  “At present Margaret is not in a position to return to work regardless of any adjustments we could make, she can’t return on a part-time basis and a change of work wouldn’t help.  Margaret is keen to return to work as soon as she can and is happy with the post she has within NHL”.

 

105.   In an email to Ingrid McKinley, dated 7 April 2011, the claimant made the following very tentative comments:

 

                  “… perhaps if I had actually been given transfer to an office closer to home perhaps I would have managed to return to work before February 2011”.

 

106.   When the claimant returned to work, in February 2011, she had the benefit of the travel provisions of the Access to Work Scheme.  Nevertheless, in a letter dated 7 June 2011, to David Carisle (of the respondent’s Attendance Management Unit), the claimant commented that her return to work had been “… against the advice of OHS and my GP “[Our emphasis].

 

107.   In summary, in relation to the question of whether or not the claimant would have been fit to return to work, at some point during the relevant absence, if she had been transferred to a workplace nearer home, the position is as follows.  There is a conflict between the contemporaneous medical advice and the claimant’s contemporaneous comments on the one hand, and the 2012 medical advice and the claimant’s 2012 comments on the other hand.  We have resolved that conflict, by preferring the earlier advice and the earlier comments, as being more likely to be indicative of the true position. 

 

108.   We consider that the contemporaneous views of Dr Glancy, who signed so many medical certificates, is likely to be a better guide to the true position than Dr Walls’ letter.  We note that the Walls’ letter was produced long after the occurrence of the situation which it addresses, and that it seems to be mainly based on his assessment of the implications of the contemporaneous medical paper-work.  In our view, despite the comments made in the Diamond note (which accompanied the Walls letter), the medical opinion set out in that note of March 2012 is significantly different from the medical opinion set out in Dr Diamond’s letter of February 2012. 

          Furthermore, on the basis of the contemporaneous comments which have been quoted and referred to above, we are satisfied that, during and soon after the relevant absence, the claimant was certain that she was unconditionally unfit for work.  (In other words she was not stating or implying that she was fit for work subject to the provision of a transfer). 

 

109.   Against that background, and for all those reasons, we are not satisfied that the claimant suffered any financial loss as a result of the reasonable adjustment failures in the context of the transfer. 

 

Compensation for injury to feelings

 

110.   The claimant was absent because of her disability from 7 December 2009 until 22 February 2011.  Since then, she has been back at work, but on reduced hours.  The reduction in working hours is also due to her disability.  The claimant presented her claim in these proceedings on 19 August 2011. 

 

111.   The claimant asserts that she has suffered injury to feelings as a result of the respondent’s reasonable adjustment failures in connection with transfer.  We accept that she has suffered such injury to feelings. 

 

112.   The claimant cannot seek remedies in the present proceedings (including damages for injury to feelings) in respect of any failure on the part of the respondent which occurred since the date of commencement of these proceedings.  Accordingly, in considering remedies in respect of the failure to promptly transfer her, we must regard the end-date as being August 2011. 

 

113.   However, in that context, what is the start-date?  In our view, the proper start-date cannot be much earlier than January 2011, when the claimant returned to work.  In our view, prior to that date, the claimant regarded herself as being entirely unfit for work (as distinct from being unfit only to travel to a distant workplace).  Furthermore, the focus of her attention, throughout most of the relevant period of absence, perfectly understandably, was upon her illness, and upon the possibility of losing her job.  Accordingly, at that time, the transfer issue was very much at the periphery of her concerns.  Therefore, for practical purposes, we consider that the start-date, in the context of the claimant’s injury to feelings, is January 2011, when issues relating to the claimant’s return to work came to the forefront. 

 

114.   Accordingly, in assessing the claimant’s entitlement to injury to feelings, we have focused upon the injury to feelings which the claimant felt, as a result of the relevant failures (the failures to make reasonable adjustments in respect of transfer which occurred during the period from January 2011 until August 2011). 

 

115.   No doubt, the injury to feelings which she has felt in respect of the relevant failures (the failures during the period from January 2011 to August 2011) have been exacerbated on account of what she sees as the post-August 2011 failures in respect of her transfer request.  We have taken account of that exacerbation in calculating the amount of compensation due to her, in this case, in respect of injury to feelings.  Nevertheless, we have reminded ourselves that we can only award compensation in respect of unlawful discrimination which occurred prior to the commencement of these proceedings.

 

116.   In our view, the claimant’s injury to feelings in relation to the transfer is the result of her perception that the respondent did nothing to facilitate her obtaining a transfer, beyond putting her name on the list.  Accordingly, in calculating the amount of compensation which ought to be awarded to her in respect to injury to feelings, there is no need to arrive at a considered view as to the extent of her prospects of obtaining suitable redeployment (in the event of the measures specified at paragraphs 78 and 79 above having been taken). 

 

117.   In calculating the amount of compensation which is due to the claimant, we have had regard to the guidelines which were set out in Vento v Chief Constable of West Yorkshire Police [2003] ICR 318.  The “Vento” bands were updated in a more recent Employment Appeal Tribunal judgment.  As so updated, the guidelines provide an appropriate framework for consideration of the amount of compensation for injury to feelings which should be awarded in this case.  As updated, the three Vento bands are as follows:

 

          (1)    £500 to £6,000

 

(2)        £6,000 to £18,000

 

(3)        £18,000 to £30,000.

 

          As was explained by the Court of Appeal in Vento (at paragraph 65 of the judgment), the position is as follows.  Sums in the Vento band (3) should be awarded only in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race; band (2) should be used for serious cases, which do not merit an award in the highest band; and band (1) is appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. 

 

118.   Adopting that guidance, we consider that the discrimination in this case falls within the middle band.  Having had regard to all of the circumstances and, in particular, having had regard to the claimant’s testimony about her feelings relating to the failures in respect of a transfer, we assess the principal amount of compensation due in this case at £7,000.

 

119.   We have noted the provisions of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases (Regulations) Northern Ireland) [1996/581].  We are not of the opinion that, in relation to the relevant award, there are circumstances which have the effect that serious injustice would be caused to the respondent by awarding interest in respect of the entire award, or in the respect of the entire period. 

 

120.   Applying the rules which are contained within the 1996 regulations, we award interest at 8% per annum on £7,000, from date of injury to date of calculation.  That amounts to approximately £500.

 

121.   Accordingly, the overall award is £7,500 (£7,000 plus interest, pursuant to the 1996 Regulations, of £500). 

 

Interest

 

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

 

 

 

 

 

Chairman:

 

 

Date and place of hearing:  20-22 February, 5 April and 11 May 2012, Belfast.                   

 

Date decision recorded in register and issued to parties: