Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS:    602/11

                                                                                                                           1149/11                                                                               1833/11

 

CLAIMANT:               Martina O’Callaghan

 

RESPONDENT:         Western Health & Social Care Trust

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant’s claims for unfair dismissal, health and safety detriment, and disability discrimination are dismissed and that her claim for breach of contract (untaken holiday leave) is allowed and the tribunal awards her £1,822.10.

 

 

Constitution of Tribunal:

 

Chairman:                Mr B Greene

 

Members:                 Mrs C Lewis

                                 Mr A Kerr

 

 

Appearances:       

 

The claimant          The claimant was represented by Mr Adrian Melia of Human Resources Limited.

 

The respondent:    The respondent was represented by Mr Francis O’Reilly, of counsel, instructed by the Directorate of Legal Services.

 

 

1.       Sources of Evidence

 

          The tribunal heard evidence from the claimant, and on her behalf from Colin Patrick Lynch and for the respondent from Dr Burgess, Dr Gamble, Leona Santiago,

Ann Gamble, Shirley Young, Liam Hargan, John Doherty, Nuala Sheerin, Laura Clarke, John McGarvey, Alan Corry-Finn, Ursula Doherty, Sarah Groogan and Ann McConnell.  A witness statement was submitted by Monica McNicholl but she did not attend to give evidence as medical evidence showed that she was not fit to attend.  The tribunal also received 11 bundles of documents amounting to some 3,042 pages and closing submissions from the claimant. 

2.       The Claim and Defence

 

          The claimant claimed disability discrimination, unfair dismissal and health and safety detriment by claim 602/11 on 22 February 2011; breach of contract (holiday pay) by claim 1149/11 on 9 May 2011; and unauthorised deduction from wages by claim 1833/11 of 10 August 2011.  The respondent denies the claimant’s claims in their entirety. 

 

3.       The Issues

 

          Following a Case Management Discussion on the 5 July 2011 the parties agreed the main legal and factual issues in dispute.  They also set out a number of facts that were agreed.

 

          Agreed Facts

 

          The parties agreed:-

 

(1)        That the respondent dismissed the claimant.

 

(2)        That in 2004 the claimant brought a complaint against Mrs Joan Skeffington which was investigated.  An investigation report concluded that there had been bullying and harassment of the claimant by Mrs Skeffington.  Mrs Skeffington was dismissed from her employment. 

 

(3)        That the claimant went off on sick leave in August 2004 and never returned to work.  She has since attended the respondent’s Occupational Health Department many times and has been referred to an external occupational health consultant. 

 

(4)        That the respondent asked the claimant to return to work on 18 October 2010 and the claimant did not return. 

 

(5)        That in respect of the claimant’s refusal to return to work on 18 October 2010 that the respondent subsequently met with the claimant and considered termination of her contract.

(6)        That the claimant was afforded a right of appeal and exercised the same.

 

(7)        That the respondent dismissed the claimant for refusing to return to work on 18 October 2010.

 

(8)        That the claimant had not requested either verbally or in writing to take leave at any stage from 2004 to 2011 and has not taken leave during that period.

 

(9)        That the claimant has not requested either verbally or in writing to carry over the leave at any stage from 2004 to 2011.

 

(10)    That the respondent did not at any time make a payment to the claimant in lieu of any accrued entitlement to holiday pay.   

          Issues in Dispute

 

          Legal Issues

 

          A.       Unfair Dismissal:

         

(1)            Was the dismissal unfair?

 

(2)            Was the principle reason for dismissal conduct or some other substantial reason other than conduct, or was the claimant dismissed on the grounds of health and safety, or for a reason related to a disability?

 

(3)            If the dismissal was for conduct or some other substantial reason, was the dismissal within the band of reasonable responses? 

 

(a)     Article 130, 130A and 132(1)(d) of The Employment Rights (Northern Ireland) Order 1996.

 

          B.       Disability Discrimination

 

                    (1)      Has there been a breach in relation to the statutory procedures in terms of failing to raise the complaint of disability discrimination.

 

(a)            If not, when was the complaint put in writing?

 

(2)            Is the claimant disabled? 

 

(a)      Section 1 and Schedule 1 of the Disability Discrimination Act 1995 (as amended).

                   

(3)            Did the respondent fail to comply with its duty to make reasonable adjustments?

 

(a)      Section 3A(2) of the Disability Discrimination Act 1995 (as amended).

 

          C.       Detriment in a Health & Safety Case

 

                    (1)      Has the claimant been subjected to a detriment by refusing to return to work in circumstances of alleged danger which she believes to be serious and imminent?

 

(2)            If so, what was the detriment?

 

(3)            When was the act or omission (or if a series, the last in the series) by which the claimant was subjected to detriment? 

 

(a)     Article 68(1)(d) of The Employment Rights (Northern Ireland) Order 1996 (as amended).

          D.       Holiday Pay

 

                    (1)      Has the claimant been subjected to an unlawful deduction of wages?

 

                    (2)      Is the claim out of time? 

 

(a)            Article 45(1) of The Employment Rights (Northern Ireland) Order 1996.

 

(b)            Stringer and Others v HMRC [2009] UKHL31.

 

          Main Factual Issues   

 

          E Historical Background

 

          The claimant alleges that, in June 2005, she made a formal complaint under the bullying and harassment policy about Monica McNicholl and Liam Hargan, inter alia, and that this was never investigated.  The respondent alleges that a grievance hearing took place into the role of Mrs Groogan, Mrs Young, Mrs McNicholl and Mr Hargan on 7 July 2006.

 

          Main Issues

 

          (1)      Disability

 

                    (a)    Was the claimant disabled?

 

                            (i)     Did the claimant have a mental impairment?

 

                            (ii)    If so, did the claimant’s mental impairment have a long-term substantial adverse effect on her day to day activities?

 

          (2)      Ill Health Retirement

 

                    (a)    During the claimant’s absence, was ill health retirement or dismissal on grounds of capability ever considered and if so, what if any steps were taken by the parties in relation to these possibilities.

         

          (3)      Health & Safety/Reasonable Adjustments

 

                    (a)    Between February 2010 and February 2011, did the claimant have any grounds to believe that returning to work would expose her to serious and imminent danger that she could not reasonably be expected to avert?

 

                            (i)     If so, what were those grounds?

 

                            (ii)    What was the basis of her belief in those grounds?

 

                            (iii)    Was her belief reasonable?

 

                            (iv)    Did the claimant inform the respondent of actions which, if taken, would assure her that it was safe for her to return to work?

 

                            (v)    If so, and if the claimant was disabled, did this amount to a request for reasonable adjustments?

 

                            (vi)    If so, what actions did the respondent take to assure the claimant that it would be safe to return to work?  For example:

 

                                    (1)    Did the respondent take and act upon occupational health advice?

 

                                    (2)    Did the respondent meet the claimant and discuss her concerns?

 

                                    (3)    Did the respondent conduct a risk assessment?

 

                            (vii)   Did the respondent refuse to take any of the actions that the claimant had requested?

 

                                    (1)    If so, what were they and why did the respondent refuse?

 

                                    (2)    If so, and if the claimant was disabled, did this amount to a failure to make reasonable adjustments?

 

                            (viii)  In all the circumstances did the respondent act reasonably in preparing for the claimant’s anticipated return to work.

 

          (4)      Refusal to return work

 

                    (a)    By 18 October 2010 was the claimant aware of all actions the respondent had taken and proposed to take, and all actions it had not taken and did not propose to take, in connection with her return to work?

 

                    (b)    Taking into account any and all information available to the claimant in relation to the environment in which she would be required to work, did she have grounds on 18 October 2010 to maintain a belief that returning to work would expose her to serious and imminent danger and that she could not reasonably be expected to avert and, if so, was such a belief reasonable at the time.

 

          (5)      Detriment/Dismissal

         

(a)    Did the claimant have reasonable grounds to refuse to return to her place of work?

 

                    (b)    If the claimant was disabled, was her dismissal for a reason related to her disability?

 

                    (c)    If the claimant did not have reasonable grounds, and/or if the respondent did not fail to make reasonable adjustments, and if the claimant’s refusal was a conduct issue, were the hearing and appeal hearings conducted fairly and was the decision within the band of reasonable responses?

          (6)      Unauthorised Deduction from Wages (Holiday Pay)

 

(a)       Has the claimant received her full contractual entitlement?

 

                    (b)    Has the claimant received her full entitlement under the Working Time Regulations?

 

                    (c)    Has the claimant ever issued a grievance or complaint in relation to the taking of leave or carrying over of leave?

 

                    (d)    Has there been a breach of the statutory procedures in relation to this element of the claim in that the claimant has failed to raise a complaint prior to issuing proceedings?

 

4.       Findings of Fact

 

          (1)      The claimant was employed by the respondent as a speech language therapist from 2 August 1999 until 14 February 2011 when she was dismissed for failing to return to work.  She earned per month £1163.37 gross, £1039.07 net. 

 

          (2)      In 2004 the claimant brought a complaint against Mrs Joan Skeffington which was investigated.  An investigation concluded that there had been bullying and harassment of the claimant by Mrs Skeffington.  Mrs Skeffington was dismissed from her employment following a disciplinary process.

                   

          (3)      Arising from the bullying the claimant went off on sick leave in August 2004 and never returned to work.

 

          (4)      In June 2005 the claimant made a formal complaint under the bullying and harassment policy about Monica McNicholl and Liam Hargan.  The respondent did not follow its policy and conduct separate investigations into the claimant’s complaint about Monica McNicholl and Liam Hargan.  It relied on information that emerged in connection with the Joan Skeffington disciplinary process in relation to Monica McNicholl and Liam Hargan as constituting an investigation of these complaints.  Arising from the information that emerged from the Skeffington disciplinary process Monica McNicholl and Liam Hargan were counselled, for their conduct in relation to the claimant, in August 2005 by Sara Groogan.

 

          (5)      During 2008 and 2009 the claimant made an application for ill-health retirement.  Although the respondent provided the information the claimant sought, she did not proceed with her application for ill-health retirement. 

 

          (6)      By early 2010 the claimant believed that she was well enough to return to work.  He GP Dr Lalsingh supported her return to work.  In a letter of 9 February 2010  he stated;-

 

                            “I support Martina in her request to return to work.  In my opinion it is essential for her recovery that she start working again and so rebuild her self confidence and self esteem.”

 

                    He added;-

 

                            She does have a number of issues that she feels would need addressed to enable her to return to work and she is keen to discuss this with you.”

 

                    The claimant communicated her desire to return to work to the respondent.

 

          (7)      At the request of the respondent Dr Clive Burgess, Consultant Occupational Physician, saw the claimant on a number of occasions from 11 December 2002 to 17 June 2010.  By March 2003 Dr Burgess had concluded that the claimant had suffered a health breakdown which led to loss of confidence and clinical anxiety and depression.  Dr Burgess saw the claimant again and in April 2005 he determined that she was suffering from moderate to severe clinical depression and anxiety.  When Dr Burgess saw the claimant again in June 2008 he offered to be available to her in support of a claim for permanent injury benefit and ill-health retirement.

 

                    Dr Burgess saw the claimant again on 12 February 2010.  He concluded, at that time, that the claimant did not suffer from any mental health or physical diagnosis, incapacity, impediment or disability which would prevent work attendance.

 

                    In June 2010 Dr Burgess described the claimant as clinically well although she suffered from chronic embitterment, which is not a medical condition although it can lead to medical illness.  The chronic embitterment arose from a strong feeling of injustice and distrust arising from her treatment by the respondent.    

 

          (8)      Dr B Fleming, Consultant Psychiatrist, saw the claimant on 17 and 26 April 2007, for the purposes of preparing a medical report in connection with High Court proceedings being brought by the claimant against her employer, the present respondent.  He concluded that in 2002 the claimant was suffering from a mixed anxiety depressive adjustment reaction secondary to the stress she was experiencing in work.  In 2007 Dr Fleming concluded that the claimant suffered from an adjustment reaction and had developed severe and chronic depression and anxiety which persisted to 2007.

 

          (9)      Arising from the claimant’s dissatisfaction with Dr Burgess the respondent arranged for the claimant to be examined by Dr Alan Black, Consultant in Occupational Medicine, on 1 September 2010.  In his report Dr Black concluded that the claimant was currently well.  He noted her comment that she believed that she was fit to return to work.  In the body of his report he stated;-

 

                    (a)      That the claimant’s mental health would relapse if she were to return to a post in Great James St Health Centre due to her perception and negative views of how her case had been managed by the respondent.

 

                    (b)      That any risk of relapse must, at least in part, be determined by what role the claimant would be offered.  A role, where she had less contact with individuals previously known to her, would be bound to lessen the likelihood of a recurrence.  The identification of a suitable post for the claimant, thereby securing her employment, was likely to have a positive effect on her longer term mental health and might well play an important part on her road to recovery.  Therefore from the medical perspective a post with minimal contact with previous work colleagues might well be preferable.

         

(c)      Whilst the claimant was likely to remain psychologically vulnerable for some considerable time to come, the risk of a recurrence of clinical depression was likely to be significantly reduced if the claimant were to work outside the Trust.  Long term mental health and mental stability are strongly linked with being in secure employment whether this should be within or outside the Trust. 

 

Dr Black also added, “…it remains unclear whether her strongly held perceptions and views will allow her to return to work under any circumstances”. 

         

          (10)    On 23 September 2010 Mrs Ann McConnell, Assistant Director of Human Resources, wrote to the claimant to schedule a meeting for 11 October 2010 to arrange her return to work on 18 October 2010.  In the letter Mrs McConnell stated that it was the respondent’s view, on foot of the medical reports from Dr Black and Dr Burgess, that the claimant was fit to return to work.  The letter also indicated that if the claimant did not accept one of the three posts in different locations, at the claimant’s desired grade, offered to her, that the respondent would have no choice other than to terminate her employment contract.  The claimant replied by letter of 30 September 2010 indicating that she would not be able to return to work until the work place was safe. 

 

          (11)    The claimant met with Mrs McConnell and Mrs Gamble, from the respondent’s HR department, on 11 October 2010 to discuss her return to work.  The respondent was able to offer the claimant a post at the grade she wanted in the location that she preferred.  The claimant had concerns that she would meet people who had been involved in the bullying or knew of it in the past.  The respondent assured her that with the structural changes within the Speech & Language Therapy Department that those contacts would be kept at a minimum.  The claimant also wanted a statement which protected her reputation and professionalism and made clear that her absence from work arose from the actions of others and was not caused by her.  She also wanted something that would clear up her professional relationships and personal relationships with colleagues. 

 

                    The respondent was willing to make a statement to the staff about the claimant’s return and proposed a number of possibilities, none of which was acceptable to the claimant.  The respondent felt constrained by a confidentiality agreement which had resulted from a case taken by Mrs Joan Skeffington against the respondent in relation to her dismissal.  Although the claimant believed the form of words, for the statement to staff to be issued by the respondent, was inadequate and did not meet her concerns she did not propose any specific wording for any such statement, despite being invited to do so.

 

(12)    The respondent made other suggestions to the claimant that they would support her re-integration into the Speech and Therapy Department through supervised practice, formal study and private study.  The respondent also undertook to provide the HPC, the claimant’s professional body, with any information it requested as part of registration or other requirements.  The respondent did not carry out a formal risk assessment in relation to the claimant’s return to work.

 

          (13)    The meeting of 11 October 2010 concluded with the respondent indicating that it expected the claimant to return to work on 18 October 2010 and that were she not to do so that her employment might be at risk.

 

          (14)    On 18 October 2010 the claimant did not return to work because she considered it to be risky for her to do so.  The claimant was then invited to and attended a meeting on 24 November 2010 to consider the potential termination of her employment with the respondent.  The respondent did not seek to dismiss the claimant on the ground of capability.

 

            (15)     On 2 December 2010 Mr John McGarvey, the Chairman of the panel, convened to consider the termination of the claimant’s employment, wrote to the claimant and terminated her employment as the panel considered that there was no prospect of the claimant returning to work for the respondent in the position identified or to any other post now or in the foreseeable future.

 

          (16)    The claimant appealed this decision and the appeal hearing was heard on 20 December 2010 by Mr Corry-Finn and Ms Ursula Doherty and took the form of a re-hearing.  The claimant was unhappy with this, preferring instead to have a review rather than a re-hearing.

 

          (17)    The claimant was notified by letter of 14 February 2011, received by her on 23 February 2011, that the termination of her employment had been confirmed and was effective from the date of the letter.

 

(18)        During the time that the claimant was off work she did not take any holidays.

 

(19)        The claimant did not request either verbally or in writing to take any leave at any stage from 2004 to 2011 and has not taken leave during that period.

 

(20)    The claimant did not request either verbally or in writing that any leave should be carried over at any stage from 2004 to 2011.

 

          (21)    The respondent did not make any payment to the claimant in lieu of any accrued entitlement to paid holidays.

 

          (22)    The claimant is claiming payment for 202 days of leave that she did not take.  She values such leave at £9,685.90.  She has used the rate of pay applicable in January 2011 in calculating this figure, ie, a day’s wage being £47.95.

 

          (23)    As part of her claim for disability discrimination the claimant is claiming £2,509.27 being the difference between the temporary injury benefit which she received and normal salary (i.e. 15% of normal net salary for twelve months).

 

          (24)    In assessing the injury to feelings the claimant contends that the middle Vento band is the appropriate band.

 

          (25)    The claimant has not found other employment since her dismissal. 

 

          (26)    In relation to the claimant’s claim for unfair dismissal she is claiming a loss, from the date of dismissal to the date of hearing, which she quantifies at £8,164.31.  She further claims a future loss of salary and benefits, which she values at £93,278.16, and a loss of pension rights which she quantifies at £38,638.96.  Her future loss is calculated on the basis of the cost of her successfully graduating at university level in a new discipline and taking up a new career thereafter.

 

5.       The Law

 

(1)        To establish that the dismissal is not unfair the employer must establish the reason for the dismissal and that it is one of the statutory reasons that can render a dismissal not unfair or is for some other substantial reason of a kind such as would justify a dismissal.  If an employer satisfies these requirements then whether the dismissal was unfair or not depends on whether in the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee (Article 130 (1) and (4) The Employment Rights (NI) Order 1996).

 

(2)        Where an employer dismisses an employee for misconduct he must have a reasonable belief that the employee has committed an act of misconduct after having carried out a reasonable investigation (to include a reasonable disciplinary hearing and appeal) and dismissal must be within the range of reasonable responses.

 

(3)        Where an employer dismisses an employee for some other substantial reason he must show that the reason is not whimsical or capricious and if he does so it is capable of being substantial.  If, on the face of it, the reason could justify the dismissal then it will pass as a substantial reason.  The employer must also show that the substantial reason justifies dismissal.  (Harvey on Industrial Relations & Employment Law D1 [1851], [1894] and [1895]).

 

(4)        An employee who is dismissed shall be regarded as unfairly dismissed if the reason, or if more than one the principle reason, for the dismissal is that, in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert he left (or proposed to leave) or (while the danger persisted) refused to return to his place of work or any dangerous part of his place of work (Article 132 (1) (d) The Employment Rights (NI) Order 1996). 

 

(5)        In considering whether Article 132(1)(d) is engaged a tribunal should ask itself:-

 

(a)    were there circumstances of danger which the employee reasonably believed to be serious and imminent?, and

 

(b)    did he take or propose to take appropriate steps to protect himself or other persons from that danger?

 

If the criteria are made out the tribunal should then ask whether the employer’s sole or principle reason for dismissal was that the employee had taken or proposed to take such steps.  If it was, then the dismissal must be regarded as unfair.  (Oudahar v Esporta Group Limited [2011] IRLR731 EAT).

 

(6)        A person 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 (Section 3 A (2) Disability Discrimination Act 1995).

 

(7)        A person has a disability for the purposes of the Disability Discrimination Act if he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day-to-day activities (Section1(1) Disability Discrimination Act 1995 (as amended)).

 

(8)        Certain provisions of Parts I and II of the Disability Discrimination Act apply in relation to a person who has had a disability as they apply in relation to a person who has that disability (Section 2(1) Disability Discrimination Act 1995 (as amended)).

 

(9)        “Mental Impairment” includes an impairment resulting from or consisting of a mental illness (Schedule 1, 1(1) the Disability Discrimination Act 1995 (as amended)).

 

(10)    Where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur (Schedule 1, 2(2) Disability Discrimination Act 1995 (as amended)).

 

(11)    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 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.  (Section 4A(1) Disability Discrimination Act 1995 (as amended)).

 

(12)    In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments regard shall be had, in particular, to:-

 

(a)    the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

 

(b)    the extent to which it is practicable for him to take the steps;

 

(c)    the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;

 

(d)    the extent of his financial and other resources;

 

(e)    the availability to him of financial or other assistance with respect to taking the step;

 

(f)     the nature of his activities and the size of his undertaking;

(g)    …

 

(Section 18B(1) Disability Discrimination Act 1995 (as amended)).

 

(13)    Examples of the steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments and which are relevant to this particular claim are;-

 

(a) to (d) …

 

(e)    assigning him to a different place of work or training;

 

(f)     …

 

(g)    giving, or arranging for, training or mentoring;

 

(h) to (k) …

 

(l)     providing supervision or other support.

 

(Section 18B(2) Disability Discrimination Act 1995 (as amended)).

 

(14)  In a claim for disability discrimination for a reason which relates to the disabled person’s disability the claimant would have to chose as a comparator somebody who is in the same circumstances as the claimant but for the disability (Lewisham London Borough Council v Malcolm and Equality and Human Rights Commission (intervener) [2008] IRLR 700 HL).

                                             

(15)  An employee has the right not to be subjected to any detriment by any act, or other deliberate failure to act, by his employer, done on the grounds that in circumstances of danger which the employee reasonably believed to be serious and imminent and which he could not reasonably have been expected to avert, he left (or proposed to leave) or (while the danger persisted) refused to return to, his place of work or any dangerous part of his place of work.  (Article 68 (1) (d) The Employment Rights (NI) Order 1996).  This Article does not apply where the detriment in question amounts to dismissal (Article 68(4) The Employment Rights (NI) Order 1996).

 

(16)  An employer shall not make an unauthorised deduction from wages unless the deduction is required or authorised by statute on the employer’s contract or the worker has previously signified his consent in writing to the making of the deduction (Article 45 The Employment Rights (NI) Order 1996). 

 

(17)    An industrial tribunal shall not consider a complaint for unlawful deduction from wages unless it is presented within three months from the date when the deduction was made (Article 55 (2) (a) The Employment Rights (NI) Order 1996).

 

(18)  Where a complaint is brought in respect of a series of deductions the three months runs from the last deduction (Article 55 (3) (a) The Employment Rights (NI) Order 1996).

 

(19)  Where an industrial tribunal is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the three months the tribunal may consider the complaint if it was presented within such further period as the tribunal considers reasonable (Article 55 (4) of the Employment Rights  (NI) Order 1996).

 

(20)  An employee may bring a claim for the recovery of damages for any sum which is due or is outstanding on the termination of the employee’s employment (Article 3 Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994).

 

(21)  An Industrial Tribunal shall not entertain a complaint in respect of an employee’s contract claim unless it is presented within the period of three months beginning with the effective date of termination of the contract giving rise to the claim or, where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated or, where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable (Article 7 Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994).

 

(22)  Leave to which a worker is entitled may be replaced by a payment in lieu where the worker’s employment is terminated (Regulation 13A The Working Time Regulations (NI) 1998, as amended).

 

(23)  Leave to which a worker is entitled may only be taken in the leave year in respect of which it is due and may only be replaced by a payment in lieu when the worker’s employment is terminated (Regulation 13 (9) The Working Time Regulations (NI) 1998).

 

(24)  The issue of what happens to annual leave when an employee is on sick leave came before the European Court of Justice on a referral by the House of Lords in Stringer and Others  v  HM Revenue and Customs and
Schultz-Hoff v Deutsche Rentenversicherung Bund [2009] IRLR 214 ECJ.

 

                  Harvey on Industrial Relations and Employment Law at C1 [172] summarises the outcome as follows:-

 

                              “The principal conclusions reached by the Court are that:

 

·       the right to annual leave continues to accrue during sick leave

·       the Directive does not prohibit national legislation providing that annual leave cannot be taken during sick leave, but nor does it require that national legislation should permit this

·       any leave that a worker was unable to take because of being on sick leave can be taken on his or her return to work, not withstanding that this may be in a later leave year

·       leave entitlement may not be replaced by a payment in lieu unless the employment is terminated before the worker has the opportunity to take his or her leave

·       if payment in lieu is payable, it is to be paid at the rate in which the leave would have been remunerated if taken as leave.

 

(25)  Where an employee is entitled to paid annual leave in the leave year and is prevented from taking that annual leave because the employee was sick he is entitled to carry the untaken paid annual leave forward to the next leave year without making a prior request to do so.  Where that employment has been terminated before the leave carried forward could be taken the employee is entitled to payment on termination for the paid annual leave he had been prevented from taking (NHS Leeds v Larner [2012] EWCA Civ 1034 (25 July 2012).

 

          (26)  In Harvey on Industrial Relations and Employment Law at C1 [148.01] it was discussed how long leave could be carried forward where an employee was sick.  Harvey stated;-

 

                          “The question how long leave not taken because of sickness may be carried forward arose from determination by the CJEU in KHS AG v Schulte: C-214/10 [2012] IRLR 156 …  The Court drew on ILO Conventions 132 on paid holidays, which is specifically referred to in the recitals to the WTD, to support its reasoning that indefinite rolling forward untaken holiday during extended sick leave was not consistent with the purpose of annual leave.  Whilst in Schultz-Hoff, the Court had rejected a rule that untaken leave lapsed six months after the end of the leave year  in which it accrued, the period here, 15 months, was long enough, and leave not taken after such a period would no longer serve the purpose of promoting the health or safety of the worker.”

 

                  Harvey commented further at paragraph [184]

 

                          “… Thus it is suggested that the cases referred to … on Reg 13 (9), and by necessary extension the cases of Larner and List Design … are subject to the limitation that leave can only be carried forward into the next leave year and for a further three months, and if not then taken lapses, and having lapsed no longer provides a basis for a payment in lieu”.

 

(27)  An industrial tribunal shall not consider a complaint unless it is presented within three months from the date in which the exercise of the rights should have been permitted or payment made or within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of the three months (Regulation 30 (2) (a) The Working Time Regulations (NI) Order 1998).  

 

(28)  Failure to pay holiday pay under the Working Time Regulations can constitute an unauthorised deduction from wages under the 1996 Employment Rights (NI) Order Article 45 as holiday pay falls under the definition of wages (HM Revenue & Customs v Stringer [2009] IRLR 677).

 

(29)  Where an employee brings a breach of contract claim he is not required to make a grievance (the Employment (Northern Ireland) Order 2003 Article 19 (1)). 

 

(30)  The normal time for presenting a complaint is extended for a period of three months beginning with the day after the day on which it would otherwise have expired where the statutory grievance procedure is applicable, the claim has been presented outside of the normal time limit and the grievance has been presented within the normal time limited (Regulation 15 (1) and (3) The Employment (NI) Order 2003 (Dispute Resolution) Regulations (NI) 2004). 

 

(31)  In a disciplinary hearing at the appeal stage the important issue is the overall fairness of the procedure, in particular the “thoroughness and the open-mindedness of the decision maker” not whether the appeal takes the form of a re-hearing rather than a review.  (Taylor v OCS Group Ltd [2006] EWCA Civ 702 [2006] IRLR 13).

 

6.       The application of the findings of fact and the law to the issues

 

          Unfair Dismissal

 

          (1)    The tribunal is satisfied that the respondent has shown that the reason for the claimant’s dismissal was her unwillingness to return to work on 18 October 2010 because the respondent had not satisfied the conditions sought by the claimant.

 

          (2)    The tribunal is satisfied that this falls under “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held” and is one of the grounds that can render dismissal not unfair.

 

          (3)    The dismissal of the claimant did not relate to her conduct.

 

          (4)    The claimant’s dismissal is not related to her disability.  The reason for her dismissal was her unwillingness to return to work on 18 October 2010.  There was no evidence before the tribunal that suggested a person in the same circumstances as the claimant, but for the disability, would have been treated any differently to the claimant.

 

          (5)    The claimant was not satisfied that the respondent had properly investigated her complaints against Monica McNicholl and Liam Hargan as part of the bullying experienced by the claimant.

 

          (6)    The claimant was also unhappy that lies told about her, during the period of the bullying, had not been declared to be lies. 

 

          (7)    The claimant believed that her return to work would pose a risk to her and that the respondent had not done a risk assessment on her return to work and thus she did not attend for work on 18 October 2010.

 

          (8)    When the claimant did not attend for work on 18 October 2010 the respondent set in motion a process to consider terminating the claimant’s employment.  She was invited to a meeting on 24 November 2010 to consider whether her employment should be terminated.  She was permitted to make her case.  When the decision was made to terminate her employment she was told why and given a right of appeal.  The claimant was able to make her case at the appeal.  She was advised of the outcome of her appeal and the reasons for the appeal panel upholding the decision to dismiss. 

 

 

          (9)    Having considered whether the dismissal by the respondent was fair or unfair under Article 130(4) the Employment Rights (Northern Ireland) Order 1996 the tribunal is persuaded that the claimant’s dismissal for some other substantial reason was not unfair.  In so concluding the tribunal had regard to the following matters:-

 

                  (a)    The impetus to return to work in 2010 came from the claimant.

 

                  (b)    The claimant’s GP supported her return to work in 2010.

 

                  (c)    Both Dr Burgess and Dr Black concluded that the claimant was fit to return to work in 2010.

 

                  (d)    Whilst Dr Black and Dr Burgess concluded that there was not a medical impediment to the claimant returning to work they were somewhat cautious about the impact on the claimant of a return to work.  The claimant clearly did not consider their notes of caution as reasons for not returning. 

 

                  (e)    Dr Black suggested a role, where the claimant has less contact with individuals previously known to her, was bound to lessen the likelihood of a recurrence of the claimant’s problems.  He did not suggest that no contact with those individuals was a requirement.

 

                  (f)     By the time the claimant was scheduled to return to work Joan Skeffington had been dismissed, Liam Hargan had retired and Monica McNicholl was working elsewhere in the respondent Trust.  Therefore two persons identified by the claimant as associated with her bullying would not have been working with the claimant and the person guilty of the bullying had been dismissed.

 

                  (g)    The respondent acted on the claimant’s desire to return to work and met with her in 2010 to facilitate her return to work.

 

                  (h)    At the meetings the respondent listened to the claimant’s concerns and sought to address them.

 

                  (i)     The respondent allowed the claimant to chose one of three work locations with which she seemed satisfied.  In addition it indicated its willingness to prepare a statement to explain to staff about the claimant’s absence and return to work.  Whilst the claimant and the respondent failed to agree a form of words that was satisfactory to both the claimant was invited to propose a form of wording satisfactory to her and she did not do so.

 

                  (j)     The respondent also explained, that the staff and structure had changed in the Speech Therapy Department since 2004 when the claimant last worked there. 

 

(k)    The respondent made the offer of support, supervised practice, study formal and private and to liaise with the HPC, in support of the claimant, if necessary, regarding any issue that might arise concerning her registration with her professional body.

 

                  (l)     A number of the claimant’s fears were theoretically possible.  The respondent believed it had minimised these.  It also had proposed supervision, support and regular meetings.  The tribunal considers that the approach proposed by the respondent; of issuing an agreed statement; liaising with HPC in support of her if necessary; allowing her to chose her place of work; and by offering support, help, supervision and study when she returned to work, was a reasonable approach and the claimant should have attended at work.  Had the claimant’s fears been realised it would have become obvious and with the supervision and support it could have been dealt with quickly. 

 

          (10)  While the respondent did not follow its grievance procedure in investigating the complaints against Monica McNicholl and Liam Hargan in 2005 as specific complaints it believed it had gleaned sufficient information from what had emerged during the disciplinary process against Joan Skeffington to enable it to conclude that both warranted counselling.  There was no suggestion before the tribunal that had individual investigations being held involving Monica McNicholl and Liam Hargan that other information would have emerged or that the decision to counsel would not have been a reasonable outcome.  Given that the events and the flawed investigation occurred up to 2005 the tribunal is not persuaded that this either rendered the dismissal process of the claimant unfair or justified her refusal to return to work on 18 October 2010.

 

          (11)  Neither does the tribunal consider whether the appeal process was a review or a re-hearing is sufficient to render the decision to dismiss unfair.  The law is clear that the issue is not whether an appeal takes the form of a review of a re-hearing but whether it is fair.   The tribunal is satisfied that it was thorough, that the decision maker was open minded and therefore the appeal was fair.

 

          Health and Safety Dismissal

 

          (12)  In considering a health and safety dismissal claim the tribunal must address two issues;-

 

                  (a)    were there circumstances of danger which the employee reasonably believed to be serious and imminent, and

                 

                  (b)    did the employee take or propose to take appropriate steps to protect himself or other persons from the danger (Oudahar v Esport and Group Limited [2011] IRLR 730 EAT).

 

          (13)  The claimant believed, if she returned to work, she would be exposed to serious and imminent danger.  She believed Monica McNicholl and Liam Hargan had not been investigated in accordance with the respondent’s policy in relation to the bullying she had suffered at the hands of Joan Skeffington.  She further believed that other persons, with whom she had worked, might not appreciate that her absence was by reason of the bullying of her by others and that she was not at fault.

 

          (14)  It is not challenged that the claimant had a belief that she was in circumstances of danger which were serious and imminent. 

 

          (15)  The claimant’s subjective belief is not decisive of the matter.  That belief must be reasonable. 

          (16)  The Employment Rights (NI) Order 1996 does not define serious or imminent.  Nor was the tribunal referred to any authorities in which either of these words had been defined.  However it seems to the tribunal that serious means something that is significant and not minor.  It also seems to the tribunal that imminent means something that is likely to happen or is real and immediate. 

 

          (17)  The tribunal is not persuaded that there existed circumstances of danger that the claimant reasonably believed were serious and imminent.  In so concluding the tribunal had regarded the following matters:-

 

                  (a)    Although Dr Black recommended that the risk to the claimant’s health would be significantly reduced if she worked outside of the respondent Trust she sought and was the prime mover to return to work with the respondent Trust in 2010. 

 

                  (b)    The staffing and structure in the Speech and Therapy Department had changed.  Whilst it could not be said that the claimant would not come in contact with anyone associated with her bad treatment in the past the respondent was committed to minimising it.  However there was no evidence before the tribunal that had some contact occurred it would have posed a serious and imminent risk to the claimant.

 

                  (c)    The source of the bullying of the claimant was Joan Skeffington and she had been dismissed by the respondent.  Liam Hargan had retired and Monica McNicholl was working in another department within the Trust. 

 

                  (d)    At all times the respondent was willing to issue a statement about the claimant’s absence and return.  The claimant, though invited to do so, had failed to produce a form of wording satisfactory to her for consideration.

 

(e)        The respondent was willing to liaise with HPC, should issues arise.

 

(f)     The respondent proposed various supports, to the claimant in relation to her return to work.

 

(g)    The tribunal does not consider the absence of a risk assessment on the claimant’s return to work significant.  The respondent had reports from two occupational health consultants setting out the risks to the claimant should she return to work in the Trust and suggestions as to how to minimise these risks.  In addition the respondent had the benefit of correspondence and meetings with the claimant in which the difficulties she believed she faced were set out, her suggestions of how too deal with them and robust discussions with the claimant about the difficulties and what steps could be taken to minimise the risk to the claimant.

 

          (18)  Accordingly the tribunal is not persuaded that the claimant was unfairly dismissed by reason of a health and safety consideration. 

          Detriment Short of Dismissal

 

          (19)  The detriment alleged, arising from the risk to the claimant is her dismissal therefore Article 68 of the Employment Rights (NI) Order 1996 does not apply.   Accordingly any claim under this Article is dismissed.

 

          Disability Discrimination

 

          (20)  The tribunal concludes that for the purposes of the Disability Discrimination Act the claimant is a disabled person.  In so concluding the tribunal had regard to the following matters:-

 

                  (a)    In March 2003 Dr Burgess concluded that the claimant was suffering from, inter alia, clinical anxiety and depression.

 

                  (b)    Between April 2005 and October 2006 the claimant was attended by Dr Gamble, a colleague of Dr Burgess, who concluded that the claimant was suffering from severe clinical depression and anxiety.

 

                  (c)    By February 2010 Dr Burgess had concluded that the claimant currently was not suffering from any mental health or physical diagnosis, incapacity, impediment or disability which would prevent work attendance.

 

                  (d)    In June 2010 Dr Burgess had concluded that the claimant suffered from chronic embitterment.  He further told the tribunal that although some medical authorities have likened some of the features of this to the medical condition, post traumatic stress disorder, embitterment is not a medical condition.  He went on to say that medical opinion is that embitterment can lead to medical illness most obviously in the form of depression.  However embitterment acts as a risk factor for depression in the same way that bankruptcy acts as a risk factor.  Neither the bankruptcy nor embitterment are medical conditions. 

 

                  (e)    Following the amendment of the Disability Discrimination Act 1995 Schedule 1 by the Disability Discrimination Act 2005 Section 18 (2) it is no longer necessary to have a mental illness that is clinically well recognised to satisfy the definition of mental impairment.

 

                  (f)     In his unchallenged evidence Dr Black told the tribunal that exposure to a situation or behaviour which the claimant perceives to be stressful could result in clinically significant anxiety and depression and a relapse of previous psychological difficulties.  He stated his belief that the risk of a relapse in her psychological health was significant.

 

                  (g)    The tribunal is satisfied that, in the circumstances of this claim, that chronic embitterment results from a mental illness suffered for the claimant and therefore she is deemed to have a mental impairment.

 

                  (h)    By 2010 the impairment suffered by the claimant ceased to have a substantial effect on her ability to carry out normal day-to-day activities.  However the medical evidence suggested that the effect is likely to recur and therefore the claimant is to be treated as continuing to have a substantial effect on her ability to carry out her normal day-to-day activities.

 

          Reasonable Adjustments

 

          (21)  As the claimant has a disability for the purposes of the Disability Discrimination Act and she has returned to work the respondent has a duty to make reasonable adjustments so that the arrangements the respondent makes do not put the claimant at a substantial disadvantage in comparison with persons who are not disabled (Sections 4A(1) and 18d(2) Disability Discrimination Act 1995 (as amended)).

 

          (22)  The tribunal considers that there is not any issue about finance or resources or practicability that would prevent the respondent from making reasonable adjustments so that the claimant would not be at a substantial disadvantage in comparison with persons who are not disabled. 

 

          (23)  The key consideration, in the circumstances of this claim, was the extent to which taking the step would prevent the effect in relation to which the duty is imposed.

 

          (24)  The potential risk to the claimant’s health was a recurrence of her psychological difficulties.  It is clear from the medicals that the potential sources of re-occurrence were from the person who bullied her (Joan Skeffington); those associated with the bullying (Monica McNicholl and Liam Hargan); to a lesser extent the potential reaction to the claimant from those who were aware of the events and with whom the claimant would be working; and any questions arising from the HPC by reason of her absence from work for some six years.

 

          (25)  Joan Skeffington had been dismissed in 2005.  Liam Hargan had retired.  Monica McNicholl was working in another area of the respondent Trust.  The major actors in the claimant’s bullying were either gone from the respondent Trust or would not be working with the claimant.

 

          (26)  To address the other concerns of the claimant, with other staff members about her absence and return and any matters raised by or through the HPC, the respondent permitted the claimant to chose her working location and agreed to make a statement to staff.  That statement was never agreed because the claimant, having been asked to do so, did not propose a form of wording agreeable to her, following her disagreement with suggestions put forward by the respondent. 

 

          (27)  There were not any issues regarding the claimant’s registration with her professional body.  The respondent undertook to support her should any issue arise.  It also proposed support, study and regular meetings to assist the claimant to return to work.  The claimant articulated a concern that Joan Skeffington might lodge a complaint about her with the HPC.  Given that some five to six years had elapsed without such a complaint the tribunal considers it unlikely that a complaint would have been made. 

 

          (28)  The tribunal does not regard the failure by the respondent to properly apply its grievance procedure in relation to Liam Hargan and Monica McNicholl as having any bearing on the reasonable adjustment issue although it understands the claimant’s annoyance that the procedure was not followed correctly.

 

          (29)  The tribunal considers that the steps taken by the respondent or those which it proposed to take were such as to create the circumstances whereby the claimant would not be put at a substantial disadvantage in comparison with persons who are not disabled.

 

          (30)  According the tribunal dismisses the claimant’s claim for disability discrimination by reason of failure to make reasonable adjustments. 

 

          (31)  As the tribunal has dismissed the claimant’s claim for disability discrimination by reason of failure to make reasonable adjustments it is unnecessary to decide if the claimant has satisfied the statutory grievance procedure.  However the tribunal is sympathetic to the view that, with the volume of correspondence and meetings in 2010 concerning the adjustments the claimant sought, that the statutory grievance procedure has been met.

 

          Unlawful Deduction from Wages

 

          (32)  During the years from 2004 to 2011 the claimant was entitled to paid annual leave during each leave year. 

 

          (33)  From 2004 until her dismissal in 2011 the claimant was prevented from taking her paid annual leave because she was sick.  The claimant was entitled to carry her untaken paid annual leave forward to the next leave year in 2010/11 without making a prior request to do so.  As the claimant’s employment was terminated in that leave year, before she could take the carried forward leave, she was entitled to payment on termination for the paid annual leave she had been prevented from taking.            

 

          (34)  Following the decision in Schultz-Hoff 15 months seems the appropriate period for enabling an employee who has been off work through sickness and  unable to take annual leave to be able to carry forward that annual leave.  The tribunal accepts this approach and indeed the claimant’s legal representative supported that cut off period.

 

          (35)  Applying the 15 months period during which leave may be carried forward the tribunal assesses, in the absence of any specific information being provided to it, that during that 15 month period the claimant would have been entitled to one year’s leave which the tribunal assesses in keeping with what it understands to be normal public service leave to someone who has been in position for a number of years to be 30 days per year plus the pro-rata amount for the further three months which the tribunal assesses at 7½ days and rounds it up to 8.  The claimant therefore is entitled to carry forward 38 days leave.      

 

          (36)  In monetary terms the tribunal assesses the value of the 38 days carried forward at £1,822.10.         

 

          (37)  As the claim for unlawful deduction from wages may also be described as a breach of contract claim which does not attract the requirements of the statutory grievance procedure therefore the failure by the claimant to grieve about her non-payment for holiday leave is not fatal to her claim.                       

 

          (38)  As the claimant brought her claim for breach of contract within the requisite three months period for making such a claim there is no issue about the claim being late.   

 

          (39)  Accordingly the tribunal directs that the respondent pay to the claimant £1,822.10 for her untaken holiday leave. 

 

          (40)  As the claimant can recover her payment for untaken holiday leave under the breach of contract jurisdiction it is unnecessary to decide whether the claimant could recover the value of her untaken holiday leave as an unlawful deduction from wages or under the Working Time Regulations.

 

         

 

         

         

Chairman:

 

 

Date and place of hearing:  21, 22, 23, 24, 25, 28, 29 November; and 2 December 2011; 23 January; and 27 March 2012    

 

 

Date decision recorded in register and issued to parties: