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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> O'Neill v Northern Ireland Electricity P... Northern Ireland Electricity P... [2012] NIIT 00312_11IT (31 May 2012)
URL: http://www.bailii.org/nie/cases/NIIT/2012/312_11IT.html
Cite as: [2012] NIIT 312_11IT, [2012] NIIT 00312_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 312/11

946/11

CLAIMANT: Lisa Judith Elisabeth O’Neill

RESPONDENT: Northern Ireland Electricity Plc

DECISION

It is the unanimous decision of the tribunal that the claimant was unfairly dismissed by the respondent by way of statutory procedural unfairness. The respondent is ordered to pay the sum of £1,120.00 to the claimant.

The claimant’s claims in respect of direct disability discrimination, disability-related discrimination, harassment, failure to make reasonable adjustments and victimisation were all dismissed.

Constitution of Tribunal:

Chairman: Ms W A Crooke

Members: Mrs V Walker

Mr P Archer

Appearances:

The claimant was represented by Mr Ben Wall, Barrister-at-Law, instructed by John McKee and Son Solicitors.

The respondent was represented by Mr Conor Hamill, Barrister-at-Law, instructed by Jones Cassidy Jones Solicitors.

SOURCES OF EVIDENCE

1. The claimant gave evidence on her own behalf. Mr David Keys, Customer Relations Manager of the respondent; Ms Paula Leathem, Senior HR Business Partner of the respondent; and Ms Ruth Drysdale, Distribution Service Centre Call Handling Team Leader of the respondent, all gave evidence on behalf of the respondent. A witness statement was accepted in respect of Mr Neil MacDougall, the Company Solicitor of the respondent without the necessity of him appearing to give evidence orally before the tribunal as the claimant’s representative did not take issue with the detail of what he said.

2. Additionally, there was a bundle of documents before the tribunal.

THE CLAIM AND THE DEFENCE

3. The claimant claimed that she had been unfairly dismissed and discriminated against under various headings of disability discrimination, ie, direct disability discrimination; discrimination by way of a failure to provide reasonable adjustments; harassment and victimisation.

4. The respondent denied all these claims saying that the claimant had been fairly dismissed on account of her lack of capability to do the job for which she was employed and denied discriminating against her under any of the headings above set out.

THE RELEVANT LAW

5. The relevant law in relation to unfair dismissal is found in the Employment Rights (Northern Ireland) Order 1996 at Article 126 and following.

6. The relevant law in relation to disability discrimination was found in the Disability Discrimination Act 1995 as amended by the Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004. The tribunal considered in particular, Section 3A(5) of the Disability Discrimination Act 1995 (hereinafter referred to as the DDA), and other parts of Section 3A, Section 3B, Section 55, Section 4A and Section 18B(1) and (2) of the DDA.

7. The tribunal also considered the following cases:-

Spencer v Paragon Wallpapers Ltd [1976] IRLR 373.

Lynock v Cereal Packaging Ltd [1988] IRLR 510.

Jones v Post Office [2001] EWCA Civ 558.

London Borough of Lewisham v Malcolm [2008] UKHL 43.

H J Heinz Co. Ltd v Kenrick [2000] ICR 491.

O’Hanlon v Commissioners for HM Revenue and Customs [2007] EWCA Civ 283.

Royal Liverpool Children’s NHS Trust v Dunsby [2006] IRLR 351.

Selkent Bus Co Ltd v Moore [1996] IRLR 661.

THE FACTS FOUND

8. (1) The claimant was employed by the respondent as a Call Agent from 1 October 2007 until 18 October 2010. Initially, the claimant was an agency worker and then she became directly employed by the respondent but no point was taken about the continuity of her employment by either party in the hearing. The claimant earned £1,333.17 gross per month.

(2) It was accepted by the respondent a short period of weeks before the hearing commenced that the claimant was a person who had a disability. However, at the time of the events which gave rise to this claim, the respondent did not accept that the claimant was a disabled person within the meaning of the DDA, although it did accept that it knew that she had depression.

(3) There was a psychiatric report, dated 21 October 2011, before the tribunal from Dr G Loughrey, but this was not referred to by the tribunal in reaching its decision on the actions taken by the respondent as it was retrospective. However, it was noted by the tribunal as the method by which agreement was reached between the parties that the claimant was disabled before the hearing.

(4) The respondent does not have a discrete Disability Policy. The document that was produced to the tribunal as constituting that policy was a one page Equality of Opportunity Policy.

(5) The respondent has a Sickness Absence Guidelines for Employees Scheme and this amongst other things sets out stages in the sickness absence monitoring process. These are as follows:-

· Counselling interview; first reminder (oral); second reminder (first written); final reminder (second written); termination.

· The claimant had a significant number of absences, some of which were for relatively short periods but others which would last in excess of 14 days. These were as follows:-

TABLE OF ABSENCE
Dates	Total of days for this particular absence	The reason
25 February 2008 - 26 February 2008	2	Upset stomach.
8 September 2008 - 12 September 2008	5	Gastroenteritis, etc.
11 November 2008	1	Abcess.
31 December 2008 - 2 January 2009	3	Vomiting and diarrhoea.
10 February 2009 - 27 February 2009	14	Depression/Stress.
18 March 2009	1	Urinary Tract Infection.
5 May 2009 - 12 May 2009	6	Vomiting and diarrhoea.
8 July 2009 - 17 July 2009	10	Viral infection, conjunctivitis, etc.
7 September 2009 - 13 November 2009	68	Depression.
14 January 2010	1	Feeling unwell. Vomiting. Dizzy.
12 January 2010	1	Special Leave Day. Domestic issue.
9 June 2010 - 11 June 2010	3	Vomiting and diarrhoea.
9 August 2010		Body Odour problem raised.
24 August 2010	Ongoing	Depression. Work-related stress.

· The claimant did not return to work from this date (24 August 2010) until her termination which was on 18 October 2010.

9. The Sickness Absence Procedure has a number of trigger points which result in a warning (of various sorts) being issued to the employee. The initial trigger point is following a period of absence of 11 days and/or three occasions in a 12 month period. This would result in the employee’s manager formally counselling the employee in relation to his/her sickness absence. Subsequent trigger points are as a result of two further occasions of absence in a 12 month period or 10 days from the date of the previous absence that triggered the warning. This results in a verbal warning, written warning, final written warning and then potentially termination. These stages are all categorised as formal and therefore Human Resources representatives attend and the employee has the right of accompaniment by a Trade Union representative or a colleague. At each stage during the formal interview the employee is given the opportunity to submit any information regarding their health which is held on file. They are also offered any additional assistance from the respondent’s Occupational Doctor and Welfare Officer during this interview. The employee then receives a letter confirming the warning that has been issued, and which also reminds him/her of the opportunity to submit further medical evidence and the opportunity of being referred to the Occupational Doctor and/or Welfare Officer.

10. Following every employee absence there is a return to work interview conducted with the employee and his/her manager. Also when meeting with any employee through this process the respondent always offers additional support to employees if appropriate through Welfare Services and Occupational Health. This return to work interview procedure gives the manager the opportunity to explore any other issues/factors affecting the employee’s attendance and gives the employee an opportunity to raise any issues/concerns with their Line Manager.

11. The tribunal was concerned to note that there was no provision for appeal against each stage of individual warnings. This was only possible at the final stage of the process.

12. The respondent met with the claimant on the dates set out in the left-hand column of the table of meetings, set out in this paragraph, for the reasons set out in the
right-hand column.

TABLE OF MEETINGS
Date of Meeting	Type of Meeting
7 January 2009	Return to work.
9 January 2009	Counselling interview, confirmation letter.
2 March 2009	Return to work.
19 March 2009	Return to work.
28 April 2009	Interview and oral reminder.
17 June 2009	Return to work.
20 July 2009	Return to work.
11 August 2009	Interview and written warning.
19 August 2009	Letter regarding written warning.
18 September 2009	Letter regarding current absence.
16 November 2009	Return to work.
17 December 2009	Interview and final written warning.
21 January 2010	Return to work.
14 June 2010	Return to work.
23 June 2010	Interview and final written warning.
28 June 2010	Letter re final written warning (the second final written warning).
3 September 2010	Letter regarding no sick line.
10 September 2010	Letter regarding meeting at Carne Industrial Estate on 16 September 2010.
21 September 2010	Missing Letter.
22 September 2010	Letter regarding home visit (on 27 September 2010).
10 October 2010	Letter for interview on 18 October 2010 at 10.30 am.
20 October 2010	Letter of termination advising right of appeal.

13. The claimant’s job as a Call Agent involved mainly answering calls from customers who were telephoning to enquire about their electricity. Typically, she would have answered approximately 60 calls per day, spending approximately two to three minutes per call. During times of low call volumes, Call Agents would also do some work which included amending addresses on the respondent’s database which were incorrect, inputting addresses to “mark-up” the database (where customers require a map before doing excavation work, to show the location of underground cables amongst other things). The claimant was also involved in the system of Multi Failure Report, which was a new system.

14. The claimant worked a set pattern of normal business hours working between 7.30 am and 17.00 hours, Monday to Friday. She also worked on the Standby Rota. This Rota included four members of staff who agreed to be “on call” to come into work and answer customer telephone calls outside normal working hours in response to emergency situations.

15. The claimant’s team leader was Ms Ruth Drysdale. At the end of 2008 and in the early part of 2009 another team leader called Ms Julie Smylie took over Ms Drysdale’s team to give her time to deal with a major telecom project in Craigavon. She was involved in monitoring the early part of the claimant’s sickness record. She carried out an interview with the claimant on 7 January 2008. The claimant’s next absences were from 8 September 2008 to 12 September 2008 for a viral infection; 11 November 2008 for an abcess; and from 31 December 2008 to 2 January 2009 with vomiting and diarrhoea. Ms Julie Smylie completed the various absence review forms at this time and pursuant to the Sickness Absence Policy carried out a counselling interview with the claimant on 7 January 2009.

16. Ms Drysdale confirmed that in the early part of the claimant’s employment she did notice her going into a dreamlike state for a few seconds after taking a call. She denied however, being told by the claimant that she had depression. On 9 February 2009 Ms Drysdale asked Ms Michaela Lyness, the Call Handling Shift Leader, to listen to a call. Ms Lyness, amongst other things, monitors calls for quality directly with staff and on a daily basis checks the work list to ensure calls are allocated correctly. If there are discrepancies, her job entails listening to the calls to find out the details and listening and transcribing calls for the four Customer Relations Managers in the depots, Mr David Keys, the Senior Customer Relations Manager and for the Tort Team members when investigating legal claims. On this day, a customer telephoned to report a hazardous situation. He said he was talking to someone and the line seemed to go dead. Ms Lyness passed this call to Dispatch and Ms Drysdale asked her to try to locate the first call to see if she could find out what happened. It transpired that it was the claimant who took the call and as he did not receive a response from her the caller hung up and redialled. Ms Drysdale explained to the claimant that it was important to let her superiors know if there are any issues.

17. On 10 February 2009, the claimant contacted Ms Lyness to say that she would not be in work due to being up all night with stomach pains. The claimant telephoned Ms Drysdale back after 10.00 am and said that she would “most likely” be off for the rest of the week. Upon enquiry, the claimant said that she was stressed; had problems with Ms Lyness listening to her calls; said it had happened before; reoccurs again after a while; and asked about speaking to a Harassment Adviser. Ms Drysdale arranged to meet the claimant together with Mr David Keys, her Line Manager, on 12 February 2009.

18. At this meeting, the claimant complained that Ms Lyness was singling her out. This included her listening to the claimant’s calls; live listening; speaking inappropriately to the claimant; (rolling her eyes when the claimant spoke using an inappropriate tone and mannerisms). The claimant was made to feel like “a naughty schoolchild”. There was a divergence in the evidence between Ms Drysdale and the claimant’s respective accounts of this sequence of events. Ms Drysdale did not have any memory of the claimant complaining that Ms Lyness had “screamed out” her name in front of the entire office or told her she should not ask colleagues for help. Nor did she have any memory of the claimant complaining about Ms Lyness’ alleged comments when the claimant attended work in new clothes. However, the claimant fully admitted to the tribunal that she had difficulties with her memory and the tribunal considers that it is more likely than not on the balance of probabilities that the claimant may have thought that she added these disputed complaints, but in fact was confused in her recollection of events due to her difficulties with her memory. The claimant also added that she felt that Ms Lyness and other members of the team were prying into her personal business. Ms Drysdale went on to explain the reasons why the respondent monitors calls. She also explained to her that all shift leaders carry out checks. The claimant considered that Ms Drysdale was a personal friend of Ms Lyness and was, as a result, reluctant to speak to her. Ms Drysdale reassured the claimant that while she interacted with Ms Lyness to disseminate information, she did not meet and socialise with her outside the workplace.

19. The claimant was given a list of the respondent’s Harassment Advisers, and this policy was discussed in the meeting. She was also given a copy of the grievance procedure and this was discussed. At this meeting, although the claimant denied it, the claimant was given the grievance procedure and harassment policy. This was confirmed by Mr Keys who was also at the meeting. On the balance of probabilities we prefer the respondent’s version of events as the claimant’s recollection appeared to be clouded due to memory “difficulties”. For the same reason, we also accept the version of events given by Ms Drysdale and Mr Keys in respect of how the matter was to proceed. At the tribunal hearing, the claimant insisted that she had wished the matter to be dealt with formally. However, both Mr Keys and Ms Drysdale said that the claimant required the matter to be dealt with informally and the claimant suggested that a meeting should be arranged with Ms Lyness for the purpose of “clearing the air”.

20. The tribunal also noted that at the meeting it came out that the claimant had another job in the local hospital involving her working four nights per week, four hours per shift, and in addition was having sleep difficulties. In essence, Ms Drysdale considered that the claimant had been working 12 hour days, not sleeping and as a result, possibly impairing her work performance in NIE. This was especially relevant and of concern as she had also done overtime on a couple of occasions and had been on the standby emergency call-out rota for the respondent.

21. The respondent has a policy regarding taking annual leave. Staff are asked to give as much notice as possible (a minimum of five working days in advance). There is also a short notice leave policy. This requires that a request for leave for the following week is made by Thursday, at 9.00 am of the previous week. This is because the respondent has an incident team and a call handling co-ordinator on standby “24/7” for one week out of six. By 11.00 am every Thursday morning, a list is drawn up of how many agents are going to be on shift each day for the following week starting the next day at 9.00 am. This allows the call handling co-ordinator to look at the rota and see if there are any days on which they would like additional resources placed into the call handling team.

22. During the first week of January 2009, the claimant requested short notice leave on 9 January 2009. She gave two days notice after the Duty Incident Risk Assessment had been published. This leave was granted. The claimant also worked overtime on Sunday 11 January 2009 from 4.00 pm to 7.00 pm. The claimant also asked for a day’s leave on Monday 12 January 2009. This leave was requested after the duty incident risk assessment had been published. The leave was granted. The claimant carried out overtime on Wednesday 14 January 2009, from 5.00 pm to 7.30 pm. The claimant had pre-booked leave in the third week of January 2009 and so was off work on 22 and 23 January 2009. The claimant asked for another half day’s leave on 27 January 2009, again after the rota was published. This leave was also granted.

23. An action plan to take matters forward was agreed at the end of the meeting of 12 February 2009 and this included:-

a. rearranging the early starts to give the claimant more time in bed for the next three to six weeks and then to be reviewed. This meant that the claimant would be starting work at 9.00 am instead of 7.30 am;

b. an appointment was to be arranged with Stafford Thompson at Clarity Care, a body which provides independent counselling services;

c. a meeting was to be arranged in the week commencing 23 February 2009 between the claimant and Ms Lyness; and

d. the company call recording procedure was reviewed. This was not something the claimant was aware of. No changes were made as a result of this review of procedure.

24. Ms Drysdale and Mr David Keys met with Ms Lyness on 17 February 2009 to discuss the claimant’s allegations. The notes of that meeting, such as they were, were grossly inadequate. Ms Lyness did not give evidence to the tribunal but Ms Drysdale in her evidence said that Ms Lyness was unaware of any difficulty with the claimant but was willing to try to work to adapt her approach. She also agreed that while she could be talkative, this could look like she was being nosey, so she would also bear this in mind. The following action list was agreed at the end of that meeting:-

a. the later start times for the claimant were confirmed with Ms Lyness;

b. the respondent would look at sharing early starts with other team members in future;

c. a meeting would take place the week commencing 23 February 2009 between Ms Lyness and the claimant;

d. the company call recording process would be reviewed (as discussed in the previous paragraph); and

e. Ms Lyness would participate in two 30 minute coaching sessions per month with Ms Lyness and Mr Keys.

25. The meeting to “clear the air” took place on 25 February 2009 and the claimant, Ms Lyness, Ms Drysdale and Mr Keys were all present. Various issues were discussed and the claimant and Ms Lyness put their respective points of view each to the other. At the end of the meeting, the claimant said she would like to come back to work that Friday 27 February 2009 and was intending to request a signing off line from her Doctor. The respondent’s perception was that matters had been resolved. The tribunal noted that the claimant did not raise any further issues about Ms Lyness again during her employment.

26. The claimant returned to work on Friday 27 February 2009 as arranged. Ms Drysdale conducted a return to work interview on 2 March 2009. The claimant confirmed that the reason for her absence had been stress/depression and that her illness had not completely resolved. The claimant was still on medication. No work issues were raised and the claimant was aware that the trigger had been reached in the Sickness Absence Policy where she would move to the next stage in the process which was an oral reminder. The claimant did not add any comments to the return to work form. The claimant was absent from work on 18 March 2009 by reason of a urinary tract infection. Ms Drysdale completed the claimant’s return to work interview on 19 March 2009. Ms Drysdale advised the claimant that despite her return to work it could still be useful to contact Clarity Care.

27. The claimant received the oral reminder for her attendance on 28 April 2009 in the presence of Ms Paula Leathem of Human Resources and Ms Drysdale. The claimant confirmed that she was sleeping better, her relationship with Ms Lyness was better, and she was waiting for a referral to her Doctor and she knew that support was available through Stafford Thompson at Clarity Care.

28. The claimant’s next absence on sick leave was from 5 to 12 May 2009 by reason of vomiting and diarrhoea. The claimant once more had a return to work interview with Ms Drysdale on 17 June 2009. She declined additional help or welfare and was aware that she stood at an oral reminder in the Sickness Absence Procedure. Ms Drysdale advised her how a written reminder would be triggered.

29. The claimant’s next period of sickness absence was from 8 to 17 July 2009 by reason of viral and bacterial infections, conjunctivitis in the eyes and a mouth infection. Ms Drysdale once more completed her return to work interview on 20 July 2009. No work related issues were raised and the claimant indicated to Ms Drysdale that she did not think it was a recurring illness. Ms Drysdale discussed the implications of this latest period of absence and at the end of the meeting the claimant was informed that Human Resources would arrange a
follow-up meeting.

30. The meeting that was arranged between the claimant and Ms Paula Leathem was cancelled initially as the claimant indicated that she would like to have her union representative present. In passing, the tribunal notes that there seemed to be some confusion in the mind of the claimant as to whether or not she was a union member. The tribunal does not understand how the union could have represented her if she had not been a member. The meeting was rescheduled for 11 August 2009 with her union representative present and at this meeting the claimant’s sickness history was reviewed. When analysed, it appeared that most of her absence was not in relation to depression and it was not raised as an issue by the claimant at this meeting. The claimant did not raise any work-related issues. She received a written reminder in relation to her sickness absence. The claimant did not involve her union representative any further.

31. The reason for the claimant’s next sickness absence from 7 September 2009 to 13 November 2009 was depression. Ms Drysdale talked to the claimant by telephone at 16.20 hours on 13 October 2009, but this conversation seemed to centre around issues in the claimant’s personal life rather than work-related issues. Various medical appointments and the availability of Stafford Thompson from Clarity Care were also discussed. The claimant indicated that she could come back to work.

32. Ms Drysdale was informed by way of e-mail from Ms Leathem on 26 October 2009 that the claimant had not contacted Stafford Thompson further.

33. On 12 November 2009, Ms Drysdale was informed by the claimant that she would return to work the following Monday, and she confirmed this in turn to Ms Leathem. The need for a phased return was noted and the faults skills calls had been taken out of the claimant’s job profile. Ms Drysdale confirmed that either Ms Leathem or she herself would confirm the times and dates of working arrangements.

34. Shortly thereafter, on the same day (12 November 2009) Ms Leathem provided a phased return to work pattern and confirmed that the faults skills calls could be removed for the first month.

35. Ms Drysdale completed the return to work interview with the claimant on 16 November 2009. At this meeting the arrangements for the claimant’s return to work were discussed and agreed with the claimant. After the beginning of December 2009 the faults skills calls were to be reintroduced into the claimant’s job but at a lower priority to that of her team members. The claimant was moved back to full participation in the fault skills calls after 17 December 2009 with her agreement. No work issues were reported to Ms Drysdale.

36. A final written reminder was issued to the claimant at the meeting of 17 December 2009 attended by the claimant, Ms Drysdale, and Ms Leathem. The next triggers in the Sickness Absence Procedures were discussed and the claimant was advised that she would receive a follow-up letter. She could forward any documentary evidence that could be kept on file and if her contract was ever terminated, this could be presented at an appeal.

37. On 12 January 2010, the claimant was off on a special leave day because of a domestic issue.

38. On 14 January 2010, the claimant was absent on sick leave by reason of “vomiting and being dizzy”. The return to work interview was completed by Ms Drysdale on 21 January 2010 and at that meeting she gave the claimant Clarity Care’s telephone number.

39. In or around the end of April 2010, the claimant was trained to work on the switchboard to act as cover if someone was off sick at short notice. On 24 May 2010, the normal switchboard operator was informed that she would have to have an emergency operation and it would be several months before she returned to work. The claimant agreed to take over her duty. Ms Drysdale’s perception of this was that the claimant enjoyed the work and that she was only a few steps from where she had previously sat. However, the claimant said to the tribunal that she perceived that this was a move to make her feel alone and singled out.

40. The claimant was once again absent on sick leave from 8 to 11 June 2010 by reason of “vomiting and diarrhoea and feeling unwell”.

41. The claimant’s return to work interview was conducted on 14 June 2010, at which time Ms Drysdale also conducted a personal performance review for the claimant for 2010/2011. Ms Drysdale’s perception was that the claimant was positive about work and interested in further development.

42. On 6 August 2010 Ms Drysdale received an e-mail from a member of staff called Mrs Rosemary Kingsberry who was complaining about personal odour coming from the claimant. Ms Drysdale investigated the situation with Mrs Rosemary Kingsberry and discovered that it was not an isolated incident and that other people were talking about it.

43. Ms Drysdale took up the matter with the claimant on 9 August 2010. She said she had been told that the claimant gave off an unpleasant odour at times and her personal hygiene appeared poor. She suggested that if there was an underlying issue the claimant should maybe see her Doctor. The claimant informed Ms Drysdale that she did not understand how it could happen as she showered or bathed daily. She did not believe there were any underlying health issues and wanted to know who had raised this. The claimant’s perception was that this was an example of further personal attacks by Ms Lyness and it added to her feelings of being victimised. Later that day, the claimant asked Ms Drysdale by way of e-mail to confirm what type of smell had been raised with her. Later that day, the claimant telephoned Ms Julie Smylie to say that she would not be in that afternoon and might not be back. The claimant indicated that she planned to see a Doctor on 6 October 2010 and would telephone Ms Drysdale to let her know the situation. The medical reason for the claimant’s absence on the sick-line was depression and work-related stress. Around mid-September Ms Leathem tried to organise a meeting with the claimant and after some difficulties in communication caused by the claimant’s partner not making her aware of the letter, arrangements were made for Ms Leathem and Ms Drysdale to meet with the claimant at her home.

44. This meeting eventually took place on 27 September 2010, and the whole emphasis of the discussion was around the claimant’s health issues. The claimant did not raise any ongoing issue about Ms Lyness and confirmed that she loved her job and doing the switchboard. There was a discussion how to facilitate the claimant’s return to work and Ms Leathem and Ms Drysdale indicated that previously the claimant’s working hours had been reduced and working hours and duties had been reduced for a period of time and that could assist her again in returning to work. Ms Leathem and Ms Drysdale also suggested that Ms Drysdale would meet every morning with the claimant before she came into work to ensure there were no odour issues. The claimant said that she wanted to return to work and would make contact again after her imminent Doctor’s appointment. The claimant acknowledged that her future employment was at risk due to her further period of sickness absence and Ms Leathem said that the outcome of the meeting was not predetermined.

45. By a letter dated 12 October 2010, the claimant was invited to a sickness absence meeting. Although the decision was not predetermined, the letter did state as before that the outcome of a further absence would be the termination of her employment. The claimant did not contact Ms Leathem as requested to confirm her attendance but the meeting went ahead anyway in her absence on 18 October 2010. Ms Leathem discussed the whole situation with Mr Keys, waited for 30 minutes and then took a recess.

46. It appeared that the panel of Mr Keys and Ms Leathem reconvened in or around 11.45 am. Mr Keys’ view was that the decision was taken to terminate the claimant’s employment some time thereafter. However, the tribunal was concerned to note that there had been an e-mail sent from Ms Leathem to the Payroll Department confirming that the claimant’s employment had been terminated. The timing of this e-mail was 11.43 am.

47. There was a dispute over whether or not the claimant’s grievance letter of March 2011 was actually received by the respondent. Certainly the grievance letter put before the tribunal was very detailed, was copied to the claimant’s solicitor at that time and it seemed unlikely that if such a detailed letter was produced, it would not be sent. On the balance of probabilities the tribunal considers it was sent to the respondent.

48. The tribunal noted that the final written warning was reissued and this step was not within the Sickness Absence Policy Procedures. The respondent contended that this was an example of how fair and supportive they had been to the claimant. The tribunal also noted however that the claimant was required to attend meetings under the Sickness Absence Procedure when she was off ill, which could potentially mean that someone would not be fully able to represent their situation.

49. It was the disability related absences that resulted in the claimant moving along the Sickness Absence Procedure spectrum.

CONCLUSIONS

The Unfair Dismissal Claim

50. We found that the claimant was dismissed on the grounds of her lack of capability to carry out her contract. It has long been settled law that “the basic question which has to be determined in every case is whether, in all the circumstances, the employer can be expected to wait any longer and, if so, how much longer” (Spencer v Paragon Wallpapers Ltd [1976] IRLR 373). The correct approach for an employer seeking to dismiss for misconduct is that laid down in the case of Lynock v Cereal Packaging Ltd [1988] IRLR 510 and is one of “sympathy, understanding and compassion.” A number of factors can be considered and these are as follows:-

(a) Nature of illness, likelihood of occurrence, length of absences, need for work to be done, impact on others of absence, adoption and exercise of policy, importance of personal assessment. Extent to which seriousness of the situation is made clear to the employee... “so that the employee realises that the point of no-return... was approaching”.

(b) There should be consultation both with the employee and his/her doctors.

(c) In this case, there were ample examples of consultation with the claimant over the two year period during which her attendance was being monitored. These have been set out in the Table of Meetings in paragraph 12 above. Two Occupational Health Reports were also carried out, the later one being in November 2009. As a result of this report, some short term amendments were made to the claimant’s work situation, which enabled her to get back to work. Given that the employer in this case dismissed the claimant approximately one year later, a valid question could be whether or not the respondent was adequately informed about the claimant’s medical situation. This is particularly so when the tribunal notes the comments of the OH doctor in his second report. At the time in question, the respondent did not explicitly accept that it was dealing with any underlying medical condition such as depression. It should also be noted that while the depression-related absences were more lengthy in terms of time taken on each individual absence, numerically speaking they were substantially in the minority. This claimant had a significant number of repeated short absences for symptoms such as those arising from her irritable bowel syndrome. It was not argued before the tribunal that the irritable bowel syndrome in itself constituted a disability. In the case of J Patterson v Messrs Bracketts [1977] IRLR 137 the EAT stated as follows:-

“What is required in a particular case will, of course, depend on the circumstances, but the principle is twofold; first, that there should be consultation or discussion with the employee; and secondly, that such other steps as are necessary should be taken to enable the employer to form a balanced view about the employee’s health. In some cases, that will require consultation with the doctors; in other cases it will not.”

(d) Two EAT decisions have said that where the employee has a poor attendance record then the time will come when he can be dismissed, and a failure to consult at the time of the dismissal will not render the dismissal unfair. In the case of International Sports Co Ltd v Thomson [1980] IRLR 340 the employee had an absence record of 25% in the year preceding dismissal. There was no investigation of the medical position at the point of dismissal (as is the case here). Waterhouse J indicated the duties imposed on an employer who dismisses in these circumstances:-

“in such a case, it would be placing too heavy a burden on an employer to require him to carry out a formal medical investigation and, even if he did, such an investigation would rarely be fruitful because of the transient nature of the employee’s symptoms and complaints. What is required, in our judgment, is, firstly, that there should be a fair review by the employer of the attendance record and the reasons for it; and, secondly, appropriate warnings, after the employee has been given an opportunity to make representations. If then there is no adequate improvement in the attendance record, it is likely that in most cases the employer will be justified in treating the persistent absences as a sufficient reason for dismissing the employee”.

All of the factors set out in the advice of Mr Justice Waterhouse were present in this case. The greater number of individual absences concerned the transient nature of the employee’s symptoms and complaints, (such as vomiting and diarrhoea) and not the issue of depression. There was ongoing review of the attendance record together with appropriate warnings and the chance to make representations.

The case of Rolls Royce Ltd v Walpole [1980] IRLR 343 was also quite similar in its factual matrix to the facts of this case. The employee’s absence record in that case was almost 50% for the last three years of his employment. He was given a number of warnings and counselled to discover the causes of his increasingly frequent absences. However, this was almost two years prior to his dismissal, and at the time of dismissal no further attempts were made to determine the medical position. On appeal by the employer the EAT upheld the employer’s appeal emphasising that:-

“frequently there is a range of responses to the conduct or capacity of the employee on the part of an employer, from and including summary dismissal downwards to a mere informal warning, which can be said to have been reasonable. Thus in the light of the clear warnings and full investigation of the employee’s case, the failure to consult the employee at the time of dismissal was not sufficient to render the dismissal unfair.”

Once again these factors were present in this case.

(e) It was also argued on behalf of the claimant that the respondent acted unfairly in including her disability-related absences in assessing her total percentage of absence. In the case of Royal Liverpool Children’s NHS Trust v Dunsby [2006] IRLR 351 the EAT held that:-

“the Disability Discrimination Act does not impose an absolute obligation on an employer to refrain from dismissing an employee who is absent wholly or in part on grounds of ill health due to disability. An employer may take into account disability-related absences in operating a Sickness Absence Procedure. It is rare for a Sickness Absence Procedure to require disability-related absences to be disregarded whether by taking disability-related absences into account, the employer acts unlawfully will depend on whether or not the employer is justified”.

Was the defence of justification made out in this case? The tribunal did not have the assistance of detailed submissions from counsel on this point. Mr Hamill said the scheme was justified and Mr Wall said justification was not open to the respondent. To be justified, treatment must be “material” and “substantial”. In the case of Jones v Post Office the Court of Appeal ruled that the role of a tribunal in considering justification is limited to assessing whether the employer’s decision was irrational or beyond the band of reasonable responses open to a reasonable decision-maker.

The tribunal in this case finds that the purpose of the Sickness Absence Scheme was to reduce sickness absence amongst the respondent’s workforce to a target of 3.5%. The claimant had been under scrutiny for two years. The numerical bulk of her individual absences was classifiable as persistent short-term absences but the tribunal considers that the operation of the policy was neither irrational or beyond the range of responses open to a reasonable decision-maker. It is a reasonable commercial objective and therefore justified to try to reduce sickness absence. Accordingly, we find the claimant was not unfairly dismissed on substantive grounds.

(f) Procedural Unfairness

It was clear to the tribunal from the evidence that the allegation that the decision to dismiss the claimant was taken before the meeting of Ms Leathem and Mr Keys, had some force. An e-mail was sent to the Payroll Department at 11.43 am on 18 October 2010 stating:-

“Lisa O’Neill is being terminated effective today in line with her terms and conditions of employment.”

Yet Mr Keys and indeed Ms Leathem’s evidence was that they took a recess and reconvened at 11.45 am at which point their decision was discussed.

Mr Wall submits this was a breach of Step 2 of the Statutory Procedure of Schedule 1 of the Employment (NI) Order 2003. Certainly no evidence was provided to explain this small but significant inconsistency.

Mr Hamill did not provide any submissions in response. Therefore we consider that the failure to complete the statutory procedure lies with the respondent and it is appropriate to mark this with an award of four weeks’ gross pay.

THE DISCRIMINATION CLAIMS

The cases of Igen v Wong [2005] 3 ALL ER 812 and Madarassy v Nomura International Plc [2007] IRLR 246 were considered by the tribunal in reaching its decision.

51. These authorities deal with the shifting of the burden of proof. In the case of Nelson v Newry and Mourne District Council [2009] NICA 24, the Court of Appeal said:-

“This provision and its English analogue have been considered in a number of authorities. The difficulties which tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been. The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a tribunal to go through a two stage
decision-making process. The first stage requires the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination. Once the tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatsoever on the grounds of sex. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof. In McDonagh v Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.”

52. In the case of Madarassy v Nomura International Plc [2007] IRLR 246 the Court of Appeal provided further clarification of the tribunal’s task in deciding whether the tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination. The Court stated:-

“The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; and “could conclude” in Section 63A(2) must mean that “a reasonable tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent in contesting the complaint. Subject only to the statutory “absence of an adequate explanation” at this stage, the tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the claimant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.”

53. That decision makes clear that the words “could conclude” are not to be read as equivalent to “might possibly conclude”. The facts must lead to an inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be “presumed”.

54. This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.

“The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude in the absence of an adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable for Police Service of Northern Ireland [2009] NICA 8, Coghlin L J emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

The Disability Discrimination Act 1995 as Amended

55. The meanings of discrimination and harassment are defined in Section 3A and Section 3B as follows:-

“3A - (1) For the purposes of this Part, a person discriminates against a disabled person if:-

(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b) he cannot show that the treatment in question is justified.

(2) For the purposes of this Part a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

(3) Treatment is justified for the purposes of
sub-section (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(4) But treatment of a disabled person cannot be justified under Section (3) if it amounts to direct discrimination falling within sub-section (5).

(5) A person directly discriminates against a disabled person, if, on the ground of a disabled person’s disability, he treats a 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 a disabled person.

(6) If, in a case falling within sub-section (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under
sub-section (3) unless it would have been justified even if he had complied with that duty.

3B - (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 sub-section (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.”

Has the Claimant proved such facts “from which the tribunal can properly draw an inference of discrimination?”

56. The primary facts found are as follows:-

a. The claimant worked for the respondent as a call handler.

b. The claimant told Ms Ruth Drysdale fairly early on in her employment that she had depression. The claimant also manifested a variety of symptoms at various stages in her employment from which it could be imputed that she had the medical condition of depression.

c. The claimant also told the respondent about pressures she was having in her personal life.

d. The respondent operates a sickness absence control system.

e. The claimant had a variety of sickness absences - some were for depression and work-related stress, but numerically (but not in length) the greater number related to other matters not related to the disability.

f. The claimant had ongoing difficulties with her immediate Supervisor, Ms Michaela Lyness. She considered that she harassed her and singled her out unfairly.

g. The claimant reported the situation with Ms Lyness to the respondent in February 2009.

h. This was investigated by the respondent.

i. There were no proper separate notes of the investigation meeting with Ms Lyness.

j. The situation was informally resolved by a number of actions which concluded in a meeting between the claimant and Ms Lyness at which Ms Drysdale and Mr Keys were present.

k. Ms Michaela Lyness was given some personal development coaching arising out of this complaint by Ms Drysdale and Mr Keys.

l. The claimant continued to have various sickness absences and these continued to accrue within the sickness absence control system.

m. The claimant claimed that her difficulties continued with Ms Lyness after the meeting, but she did not report them to anyone. There was no follow-up with Ms O’Neill to check if her problems with Ms Lyness had been resolved

n. The claimant was medically examined twice by the respondent’s Occupational Health Doctor (once on 15 October 2009 and once on 12 November 2009). The latter report by Dr Peter Currie pointed out that the claimant had an underlying psychological condition which “could become volatile following treatment.”

o. On the basis of this report some adjustments were negotiated to help the claimant reintegrate into the workforce.

DIRECT DISCRIMINATION - Section 3A(5) of the DDA

Has there been less favourable treatment?

57. The treatment at issue was applying the Sickness Absence Procedure to the claimant and eventually dismissing her under it. The only criticisms of the procedure by the claimant were that the claimant felt that she was being moved along through it, and that as her alleged harasser Ms Lyness knew that she had depression, she was harassing her so that the claimant would have to take time off, thus exposing her to the rigours of the procedure. The difficulty the tribunal found with this argument was that the claimant was not only absent for disability-related reasons. The whole spectrum of her reasons for absence has been set out in the Table of Absence, paragraph 12 above. Neither was there any cogent evidence to support the claimant’s allegation that her union representative had been told by Ms Drysdale that she wanted her out of her contract. If that really was the case, the tribunal does not see why the claimant could not have brought along her union representative to give direct evidence of this allegation to the tribunal. If it really was the case that Ms Lyness was even with the tacit approval of management in some way trying to provoke the claimant into absences for depression, the tribunal does not understand why the claimant did not continue to complain of her treatment by Ms Lyness. After all she had done so very fluently on one occasion (in February 2009) and while there was a dispute as to whether the claimant wanted an informal or formal method of resolution, undoubtedly the respondent did deal with the matter and did try to bring a resolution. No specific details of the training were given to the tribunal, but given the closeness in time to the claimant reporting her problems with Ms Lyness, the tribunal does not consider that the “training” given to Ms Lyness could be for any other reason(s) than those arising from the claimant’s complaint. In short, the respondent’s management did try to make an attempt to resolve the matter.

The application of the Sickness Procedure

Was it wrong for the disability-related absences to be included in the overall computation of the claimant’s absence? While fewer in number, the length of the individual absences was longer than for the non-disability related reasons, and undoubtedly, these absences did move the claimant along the procedure. In the case of Royal Liverpool Children’s NHS Trust v Dunsby [2006] IRLR 351 the Employment Appeal Tribunal stated as follows:-

“... It is common ground that the sickness absence procedure operated by the trust did not require the employer to disregard disability-related absences. In the experience of this Tribunal, it is rare for a sickness absence procedure to require disability-related absences to be disregarded. An employer may take into account disability-related absences in operating a sickness absence procedure. Whether by doing so he treats the employee less favourably and acts unlawfully will generally depend on whether he is justified or not.”

In the case before us, the respondent was not obliged by its sickness absence policy to disregard disability-related absences.

There was also a specific attack on the policy arising from the failure to update medical information and Mr Wall said a hypothetical comparator would not have been so treated. No evidence was provided to us to back up this submission.

COMPARATOR

58. Only hypothetical comparators were chosen in this case. Accordingly, this comparator is a non-disabled person with the same frequency and pattern of absences as the claimant but without a disability, in accordance with the House of Lord’s decision in the case of London Borough of Lewisham v Malcolm [2008] UK HL 43. However, there was no evidence before the tribunal that such a person would not have faced dismissal at the same point as the claimant. Therefore, it is difficult for the tribunal to avoid the conclusion that the application of the Sickness Absence Procedure by the respondent to the claimant as per any employee, means that she did not suffer less favourable treatment. Consequently, the direct discrimination claim is dismissed.

Disability Related Discrimination Section 3A(1)

59. Discrimination “for a reason which relates to his or her disability” is a wider definition of discrimination than the definition of direct discrimination. A comparison must be made between the treatment of the disabled employee and that of “others to whom that reason does not or would not apply”.

The case of Clark v TDG Ltd t/a Novacold [1999] IRLR 318 was not cited to the tribunal by either counsel in their submissions. A disabled employee was dismissed following a period of sickness absence in circumstances when any other employee absent for a similar length of time, for whatever reason, would also have been dismissed.

The EAT ruled that Mr Clark had been treated less favourably contrary to the DDA Section 5(1) because his dismissal was for a reason (his absence) which was related to his disability. Here the claimant was dismissed for absences, a substantial portion of which related to her disability as it was not necessary for Mr Clark to establish that his employer would not have dismissed a person who was not disabled and who was absent from work for a comparable period.

Having thus concluded, we turn to a consideration of justification.

The question of justification

60. In reaching a decision on whether discrimination is established, a claimant must show that the treatment was for a reason relating to the disabled person’s disability, that the treatment was less favourable than how the discriminator treats or would treat others to whom the reason does/would not apply and he cannot show that the treatment in question is justified. By Section 3A(3) treatment is justified for the purposes of sub-section (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial. The purpose of the respondent’s Sickness Absence Policy was to reduce to a target of 3.5% sickness absence throughout the respondent. We conclude that this is a reason that is both material to the circumstances of the particular case and substantial. The claimant was in excess of the target of 3.5% of absence. This was the substantial cause of the treatment, and not a desire to discriminate against the claimant for a reason related to her disability.

THE VICTIMISATION CLAIM

61. Section 55 of the Disability Discrimination Act 1995 states as follows:-

“(1) For the purposes of Part II or Part III. A person (“A”) discriminates against another person (“B”) if:-

(a) he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B’s; and

(b) he does so for a reason mentioned in sub-section (2).

(2) The reasons are that:-

(a) B has:-

(i) brought proceedings against A or any other person under this Act; or

(ii) given evidence or information in connection with such proceedings brought by any person; or

(iii) otherwise done anything under, or by reference to, this Act in relation to A or any other person; or

(iv) alleged that A or any other person has (whether or not the allegation so states) contravened this act; or

(b) A believes or suspects that B has done or intends to do any of those things.”

62. The preliminary issue we first have to consider is whether the claimant’s claims included a complaint of victimisation under the Disability Discrimination Act 1995. In connection with this preliminary point the tribunal considered the guidelines set down in the case of the Selkent Bus Company Ltd v Moore [1996] IRLR 661 in connection with whether the claimant’s claim required amendment. The Employment Appeal Tribunal held in that case:-

“In deciding whether to exercise its discretion to grant leave for amendment of an originating application, a tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. Relevant circumstances include:-

(a) The nature of the amendment, ie, whether the amendment sought is a minor matter such as the correction of clerical and typing errors, the addition of factual details to existing allegations or the addition or substitution of other labels for facts already pleaded to, or, on the other hand, whether it is a substantial alteration making entirely new factual allegations which change the basis of the existing claim.

(b) The applicability of statutory time limits

If a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the tribunal to consider whether that complaint is out-of-time and, if so, whether the time limit should be extended under the applicable statutory provisions.

(c) The timing and manner of the application

Although the tribunal rules do not lay down any time limit for the making of amendments, and an application should not be refused solely because there has been a delay in making it, it is relevant to consider why the application was not made earlier. An application for amendment made close to a hearing date usually calls for an explanation as to why it is being made then and not earlier, particularly where the new facts alleged must have been within the knowledge of the applicant at the time the originating application was presented.”

63. By a letter dated 27 January 2011 to the solicitor for the claimant, the claim for Unauthorised Deduction from Wages and the claims for Disability Discrimination were rejected as the claimant had not put the subject matter of her complaint in writing to the respondent and waited 28 days prior to presenting her claim to the Office of the Tribunals. Her reason for failing to do so was not one coming within the exceptions outlined in the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004.

64. By that same letter, the claimant’s legal representative was advised that in respect of the rejected part of the claimant’s claim she must send a written statement of his/her grievance to the respondent and the requisite time limit would be extended by three months. As the claimant’s original ET1 was stamped received by the tribunal on 7 January 2011, she had three months within which to take the necessary corrective steps. She allegedly filed her grievance on 11 March 2011. The tribunal has noted that there is almost a month between the date the claimant signed her original ET1 (16 December 2010) and the date upon which it was stamped as received by the tribunal. The tribunal does not draw any inference from this other than it was clear that any delay arose as a result of Christmas holidays in the tribunal office. As the claimant allegedly submitted her grievance in writing dated 11 March 2011 to the respondent, she has complied with the requirements of the dispute regulations of the Employment (Northern Ireland) Order 2003 (Dispute Regulations) Regulations (Northern Ireland) 2004. As the claimant’s second ET1 was received by the tribunal on 12 April 2011, we conclude that she has complied with the requirement to wait 28 days after her grievance has been served before presenting her second ET1.

65. In general in this case, there were various allegations made by the parties against each other that various letters at various times had not been delivered each to the other. The grievance letter of 11 March 2011 was one such letter. On the balance of probabilities, the tribunal considers it is more likely than not that it was delivered through the ordinary course of posting to the respondent. The tribunal was not presented with any letter from the respondent complaining, when the second ET1 was presented, that the grievance letter had not been received. If this had really been the case, the tribunal considers that it was more likely than not that the respondent would have sought a preliminary hearing to deal with the question of whether or not the tribunal had jurisdiction to hear the claims for Disability Discrimination and the Deduction from Wages claim, the tribunal considers that this would have happened a great deal earlier than it did in this case and we have jurisdiction to hear this part of the claimant’s claim.

66. Having reached our conclusion about this aspect of jurisdiction, we now turn to consider the issues raised by the Selkent Bus Company case. It was at the Case Management Discussion of 22 August 2011 that Mr Mulqueen first sought to bring forward the victimisation claim. We do consider that there was matter in the ET1 forms, sufficient, at the very least, to allow such a claim to be implied. The claimant made a complaint about Ms Lyness, that she was harassing her, and after that that Ms Drysdale treated her differently, culminating in the incident on 24 August 2010, in which Ms Ruth Drysdale advised the claimant that she had been told by another member of staff that they could smell a personal odour coming from the claimant, which remained throughout the day. The personal odour issue and the claim for deduction from wages were very specifically pleaded in the ET1.

67. We have considered the nature of the amendment and have categorised it as being largely the addition of a further label for facts already pleaded to in the ET1s. We do not consider the re-labelling to include a victimisation claim to be a substantial alteration making entirely new factual allegations which change the basis of the existing claim.

68. We have also considered the timing and manner of the application. Plainly, this was only made by Mr Mulqueen, BL (the claimant’s previous Barrister) at the Case Management Discussion of 22 August 2011. There was no real reason advanced for the “application” to be made at that time. The nature of the application was notified four months prior to the hearing date. So it could not be said that the respondent was taken by surprise. Indeed, when at the outset of the hearing Mr Hamill was invited to deal with the preliminary point in respect of the jurisdiction claim, he indicated that it would be preferable for it to be dealt with as part of the overall hearing to avoid repetition of facts.

69. For these reasons, we consider that it will be just and equitable to extend the time if such an extension is necessary (a point that was not properly argued before the tribunal). The balance of convenience on this point rests with the claimant. As already stated the contents of the ET1s are capable (at the appropriate points) of bearing the relabelling to include a victimisation claim, and the respondent was aware of this possibility from at least 22 August 2011. Any such extra work necessary to combat such a claim, would be minor compared to the inconvenience of the claimant not having an important head of her claim considered.

THE SUBSTANTIVE ASPECT OF THE VICTIMISATION CLAIM

70. We consider that the complaint by the claimant to the respondent’s management about Ms Michaela Lyness in February 2009 is capable of constituting the protected act for the purposes of Section 55(2)(a)(iv) of the Disability Discrimination Act 1995. Did Ms Drysdale, Ms Leathem and/or Mr Keys treat the claimant less favourably than they treat or would treat other persons in the same circumstances as the claimant for that reason?

The claimant seemed to detect some form of conspiracy between the respondent management in respect of how they dealt with the Michaela Lyness situation. Due to Ms Drydale’s alleged friendship with Ms Lyness, the claimant considered that Ms Drysdale treated her differently after the complaint. However, the claimant was not able to counter Ms Drysdale’s evidence that her “relationship” with Ms Lyness was one of workplace professional courtesy rather than personal friendship. Ms Drysdale pointed out that she did not see Ms Lyness outside working hours. Furthermore, the claimant did not really explain how Ms Drysdale changed towards her. The tribunal does not accept that there was some form of conspiracy between the three managers who gave evidence, to in some way downplay the Michaela Lyness problem. We have already set out our reservations about some of the aspects of the way this claim was dealt with, but we do not consider that it was “brushed under the carpet” or that the claimant was not taken seriously. We have set out above our findings about the steps taken by the respondent and we will not repeat them other than to say that the conclusion we draw from them is that the action taken by the respondent shows that the Michaela Lyness problem was treated seriously. The claimant contended at hearing that she wanted it to be formally dealt with. However, the thrust of the respondent’s witnesses’ evidence was that the claimant wished to deal with the matter informally. We add to this that the claimant did not make further complaint about Ms Lyness, although she contended in her evidence that the harassment continued. Surely if that was really the case, the claimant or her union representative, Mr Keery, would have taken further steps?

71. We accept that the claimant seems to have been somewhat confused about her relationship with her union Unite, to the extent that she did not really know if she was really a member, but we do not consider that Mr Keery would have attended a significant meeting with her as a union representative, if she had not been a member of his union. Therefore we do not understand the difficulty of the claimant.

72. In general, we found difficulty with the claimant’s credibility in this section of her claim. The logic of her case should be that because she complained about Michaela Lyness, thereafter as a result of that act she was treated less favourably by Ms Drysdale and/or others. However, the claimant also said that Ms Drysdale started to “act against her” before she complained about Ms Lyness. This seems to have been because Ms Drysdale spoke to the claimant in the Incident Room in December 2008 about a difficulty she had had with a call, and also allegedly said that “she was going to get rid of the claimant”. This evidence alone makes nonsense of the victimisation claim which the claimant said started with the “protected” act of the complaint about Michaela Lyness.

73. For the sake of completeness, we will record our conclusions about the personal odour incident in August 2010. The claimant considered that this was a further example of Ms Drysdale treating her less favourably because of the Michaela Lyness complaint, but in actual fact it was not Michaela Lyness that complained about the claimant’s odour. It was another member of staff who was completely uninvolved in any of the matters referred to in this case. Perhaps it was insensitive to suggest to the claimant that she should attend Ms Drysdale every morning so that she could check to see if there was any problem with her body odour before she went out among the general workforce. However the inadequacy of the claimant’s handling of a particular call and the issue of her body odour were both something that it was the responsibility of Ms Drysdale to deal with. The call handling issue is related to how the respondent gives its service to the general public. The body odour issue is related to workplace interrelationships. We do not consider that either of these incidents could be in any way related to the complaint against Ms Lyness, even if the call handling issue had happened after the complaint in February 2009 rather than in December 2008. We consider that the victimisation claim is without merit and is dismissed.

The Harassment Claim

74. A disabled person is subjected to harassment where for a reason which relates to the disabled person’s disability, the harasser 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.

The essence of the harassment was as follows:-

“I told them she was live listening constantly and nitpicking trivial issues about my work - the same issues she laughed off as a learning curve with my colleagues. I said that she would speak to me in a snide manner and would roll her eyes when I spoke. I said that she spoke to me in this manner and complained about my work in front of other colleagues.”

75. We have no doubt that the claimant did feel humiliated by this treatment, but we are not able to conclude that this treatment was on account of the claimant’s disability. This treatment is related to how the claimant carried out her work, in the same way that Ms Drysdale spoke to the claimant in December 2008 in the Incident Room about the mishandled call. The claimant also suggested that Ms Lyness and Ms Drysdale were picking on her because they knew she had depression and they wanted to provoke her into sickness absence. If the “harassment” was really ongoing on a daily basis, the tribunal does not understand why the claimant did not take steps to draw it to the attention of management. Even if the claimant felt uneasy about speaking to Ms Drysdale and Ms Leathem, there was no reason why she could not speak to her union representative. We accept that she felt a degree of confusion regarding what the union could and would be doing for her. However, there never seems to have been any attempt by the claimant to try to find out or even to instruct the union afresh regarding the alleged ongoing harassment.

We accept that it is intimidating and hostile for the claimant to allegedly have been told by Ms Drysdale that she wanted to get her out of her contract. However, given that in respect of the one meeting that Mr Keery attended with the claimant, from which he gleaned the view that Ms Leathem was also trying to get rid of the claimant, we do not understand why when the union was supporting her view, that the claimant did not go back to it about this potentially very serious matter. Furthermore, why was Mr Keery not called to give evidence to the tribunal? If the claimant really believed that she was the subject of some form of management conspiracy to provoke her into absence and thus move her along the sickness absence procedure towards dismissal, surely his views and evidence would have provided her with valuable corroboration? Her failure to do so affects the tribunal’s view of her credibility adversely.

76. For the sake of completeness, we confirm that it undoubtedly made the claimant feel humiliated and degraded to be spoken to about her body odour. However, we do not believe that the reason this was done was to play upon the claimant’s disability. It was a necessary intervention in a workplace situation. As the tribunal has concluded that the alleged harassment was not on the ground of the claimant’s disability, the harassment claim is dismissed.

THE REASONABLE ADJUSTMENTS CLAIM

Was the duty to make reasonable adjustments triggered? The question of imputed knowledge

77. By virtue of Section 4A(3) “Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know:-

(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in sub-section 1."

Sub-section 4A provides that “Where a provision, criterion or practice applied by on behalf of an employer... places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps, as it is reasonable, in all the circumstances of the case for him to have to take in order to prevent the provision, criterion or practice having that effect” (of the substantial disadvantage) [tribunal’s addition].

78. We have been assisted by consideration of a passage in the case of H J Heinz Co. Ltd v Kenrick, a decision of the Employment Appeal Tribunal [2000] ICR 499 (although this was not specifically cited to us but contained in an extract drawn to our attention).

“...There is no language in Section 5(1) of the Act of 1995 that requires that the relationship between the disability and the treatment should be adjudged subjectively, through the eyes of the employer, so that the applicable test should be the objective one...”

Additionally:-

“This, we think opens no floodgates but it does require employers to pause to consider whether the reason for some dismissal that they have in mind might relate to disability and, if it might, to reflect on the Act and the Code of Practice before dismissing there is, in our judgment, no need to imply into the statute a requirement not expressly present, namely, that the employer should know of the disability as such or as to whether its material features fell within/without schedule one to the Disability Discrimination Act 1995.”

79. In this case, the Employment Appeal Tribunal found that such knowledge as the tribunal held the employers to have (about the symptoms of the employee in that case) was sufficient in law to entitle the tribunal to conclude that the employee was dismissed for a reason which related to his disability. It was conceded during argument that on the facts as found the employers in the case by the time of the dismissal knew of the symptoms which a little later, were diagnosed as being chronic fatigue syndrome.

80. In the present case, Ms Drysdale and Ms Leathem were adamant that at the time they were applying the Sickness Absence Procedure to the claimant they were not dealing with a disabled person. Indeed, it was only a short number of weeks before the hearing that the fact of the claimant’s disability at the relevant time was conceded.

81. What did Ms Drysdale, Ms Leathem and Mr Keys know? The claimant could appear sleepy. She could appear withdrawn. Fairly typically she presented as dishevelled and in the Summer of 2010 she had an incidence of body odour. The claimant did when questioned suggest that her sleepiness was due to poor sleep partly as a result of a house move. We do not accept Mr Hamill’s contention that the allegation that she was “withdrawn” was only made at the hearing. The claimant’s witness statement makes it plain that from early on in her employment there were times when she would go quiet. The claimant had difficulties in her personal life. A dishevelled appearance was not untypical of the claimant and for the body odour, the claimant suggested that it arose because of her irritable bowel syndrome potentially. Mr Hamill says that for these reasons the respondent should not be fixed with knowledge that triggered a duty to make adjustments. We disagree. The test in Section 4A(3) is one of reasonableness. We consider it reasonable that this collection of symptoms added to the sickness certificates saying that the claimant was suffering from work-related stress and depression are sufficient to give this employer pause. The second occupational health report of Doctor Currie of Blackwell Associates makes it plain that the claimant had an underlying condition and the effects of therapy would take some months to play out. For all these reasons we consider that this employer could reasonably have been expected to know that the claimant was a disabled person and the duty to make adjustments was triggered.

82. What was the provision criterion or practice applied by or on behalf of the employer? Plainly, the provision criterion or practice was the operation of the Sickness Absence Policy in relation to the claimant. This placed the claimant at a substantial disadvantage because if her depression disability-related absences were subtracted, she would not have been dismissed. We are aware that there is no rule requiring an employer to ignore disability-related absences in the totting up of the overall score. Further guidance on the nature of reasonable adjustments is given in Section 18B(1) and (2) of the Disability Discrimination Act 1995. The tribunal was not given any detailed submissions by counsel on the types of adjustment that could be made. The tribunal has not gone through the full consideration of the Section 18 exercise.

83. Mr Hamill sought to attack the claimant’s credibility on this point by saying that neither she nor any medical practitioner on her behalf had suggested any reasonable adjustments, and in respect of the reasonable adjustment that she had suggested (ie, that she should be allowed to use her leave to set it against sickness absence and having to go home early if she was sick, that there was no medical evidence to suggest that this would make a difference). However, it is primarily the responsibility of the employer to suggest the adjustments, although an employee can be asked for his or her views.

Using annual leave to offset against sickness absence

84. The case of Rowan v The Environment Agency (2008) IRLR 20 set out the steps to go through to decide if the duty to make reasonable adjustments arose and whether it was been breached. These are:

(1) identify the provision, criterion or practice which puts the claimant at a disadvantage compared to people who are not disabled;

Plainly it is the operation of the Sickness Procedure which has caused the claimant to be dismissed but is it in its operation different for non-disabled people who are absent?

(2) identify the non-disabled comparator;

As stated earlier the comparator is a hypothetical non-disabled comparator with the same frequency and pattern of absences as the claimant.

In paragraph 58 of this decision we pointed out that there was no evidence before us to show such a person would not be dismissed.

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

85. By any reckoning losing her job is a substantial disadvantage but again there was no evidence to show that the claimant was at a substantial disadvantage when compared with a non-disabled person.

86. While it is the responsibility of the respondent to make the adjustment, nonetheless it is instructive to consider the adjustment suggested by the claimant which was to offset her holidays against her sickness absence.

87. The thrust of the concept of a reasonable adjustment is to remove disadvantages which prevent a disabled claimant from working. In reality what this claimant was doing is requiring the respondent to exempt her disability – related absences from being computed under the Sickness absence policy. There is settled law to show that an employer is not required to do this. Hence it is not a reasonable adjustment.

88. On the three-part test in Rowan we do not consider that the duty has been triggered but if the tribunal is wrong in that assessment we do not consider the adjustment of offsetting her holidays to be reasonable. It would only have delayed what could be argued to be inevitable – that the claimant with her many absences and reasons for absence would come to the end once more of the Sickness absence procedure.

89. The purpose of a reasonable adjustment is to remove obstacles to the employment of a disabled person. However what use is a reasonable adjustment when the greater amount of the claimant’s absences were for reasons not related to her disability? No argument was advanced to say that her “gastric” absences should be classified as disability absences and discounted.

90. A similar difficulty arises with the claimant’s proposal that she be allowed to go home early if she was sick. This would surely be in respect of her miscellaneous complaints which were largely gastric in nature and in respect of which there was no evidence, medical or otherwise, to show this would allow the claimant to overcome a substantial disadvantage. There was nothing to show how this would help the claimant back to work.

91. The claimant in this area also lacked some credibility. On the one hand she said she enjoyed the switchboard work, but on the other regarded it as an attempt to isolate her. This is something that the respondent could have used as a reasonable adjustment as coming within Section 18 but what use is it if the claimant will not work with it? It could validly be argued that the claimant is once more seeking exemption from the sickness absence scheme.

92. The respondent had tried to use an adjustment in her hours and responsibilities but there was no evidence that it worked. Within a short period of weeks (March to July 2009) the claimant was once more being absent for various reasons.

These are two examples of adjustments made, one of which did not stop the scattered miscellaneous absences while the other appeared to be resented by the claimant.

93. While the duty may have been triggered, the claimant has not shown that she was at a substantial disadvantage in comparison with a non-disabled person with the same absence pattern. Such a person would also have been dismissed. Furthermore there was no suggestion that her working hours caused or exacerbated her condition.

94. For all these reasons we dismiss the claim for discrimination by way of a failure to make reasonable adjustments.

95. In accordance with paragraph 50(f) the claimant is entitled to an award for procedural unfairness of four weeks’ gross pay, computed as follows:

£280 x 4 = £1,120.00.

The question of an increase in compensation due to the breach of the statutory procedure does not arise because no compensatory award has been made in the particular circumstances of this case. The tribunal noted that the claimant had been continuously on Employment Support Allowance since dismissal and was not fit for work. Although the claimant intends to take up the Condition Management Programme in due course and that is meritorious, the most recent letter from that programme dated 29 November 2011, has deferred this course pending cognitive behavioural therapy for the claimant.

Under Article 157 (1) of the Employment Rights (NI) Order 1996 the tribunal has to award a compensatory award which is just and equitable in all the circumstances. As the claimant is in receipt of Employment Support Allowance and unable to work due to her health problems, the tribunal does not consider it just and equitable to compensate her for a period in which she is not able to work.

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

Chairman:

Date and place of hearing: 12 – 16 and 20 December 2011, Belfast

Date decision recorded in register and issued to parties:

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