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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Boyle v Charles Sterrett, Katrina Ster... [2013] NIIT 01733_12IT (22 May 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1733_12IT.html
Cite as: [2013] NIIT 1733_12IT, [2013] NIIT 01733_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1733/12
CLAIMANT: Conor Boyle
RESPONDENT: Charles Sterrett, Katrina Sterrett and Gareth Sterrett
t/a Sterrett’s Autocentre
DECISION
The decision of the tribunal is as follows:-
1. The claimant was unfairly dismissed by the respondent and accordingly we order the respondent to pay to the claimant the sum of £5,574.28 as set out at paragraph 4.4 of this Decision.
2. The respondent failed to provide the claimant with written terms and conditions of employment and accordingly we order the respondent to pay to the claimant the sum of £1,280.00.
3. The claimant has produced insufficient evidence to establish that he is a disabled person within the meaning of Section 1 of the Disability Discrimination Act 1995 (as amended) and his claim of disability discrimination is therefore dismissed.
Constitution of Tribunal:
Chairman: Miss E McCaffrey
Members: Mr J Hughes
Mr A Kerr
Appearances:
The claimant was represented by his mother Mrs Pauline Boyle.
The respondent was represented by Mr Nick Karayiannis of Kappa Solicitors.
ISSUES
1. The issues for the tribunal to consider are as follows.
(1) Was the claimant unfairly dismissed by the respondent on 5 July 2012?
(2) Did the respondent fail to follow the statutory dismissal procedures when the claimant was dismissed?
(3) Did the respondent fail to pay the claimant notice pay?
(4) Did the respondent fail to provide the claimant with written terms and conditions of employment?
(5) Was the claimant a disabled person within the meaning of Section 1 of the Disability Discrimination Act 1995 (as amended)?
(6) If the claimant was a disabled person, did the claimant suffer unlawful discrimination by the respondent on grounds of his disability?
(7) If the claimant was a disabled person, did he suffer unlawful discrimination by the respondent’s failure to make reasonable adjustments for the claimant?
FACTS
2.1 We heard evidence in this matter from the claimant, from his parents and sister and from Mr Colin Grant on behalf of the claimant. We also heard evidence from both Mr and Mrs Sterrett of the respondent firm and from Mr Sam Sloan the respondent’s insurance broker. We had the benefit of reading their witness statements and also of considering various documents which were opened to us. A number of factual issues were in dispute between the parties. There were a number of matters introduced in evidence which we consider largely extraneous to the matters before us. Accordingly we set out below what we considered to be the findings of relevant facts in relation to the determination of the issues we have to address and we have deliberately excluded matters which we believe are irrelevant.
2.2 The claimant was employed by the respondent as a mechanic. He initially worked for a Mr Wright from September 2007 but Mr Wright then sold his business to the respondents and as a result the claimant started work for the respondents on 3 January 2008. He worked for them until his dismissal on 5 July 2012. It was emphasised by the respondents, and we accept, that the claimant was an able and talented mechanic and a good employee from their point of view. It was the respondent’s case that the claimant’s performance had deteriorated during the year and a half or so before his dismissal. However it was also agreed by the respondent that he had entrusted the claimant with the responsibility of overseeing renovations of his premises in early 2012 and that the claimant had carried this out competently. The respondent raised a number of issues which they said had occurred in relation to the claimant’s work performance and relationship with other employees from 2009 onwards. The respondent agreed however that he had not disciplined the claimant in relation to any of these matters and the claimant denied that a number of them had occurred. We do not set out any information in relation to those matters in 2009 and 2010 here as we consider that they are not relevant to the determination of the issues in this case.
2.3 There were some incidents in early 2012 which the respondent indicated showed the claimant was unreliable and had not attended work. This is not however reflected in the attendance records which we were shown. The respondent (Mr Charles Sterrett) said that on two occasions in May 2012, the claimant took an excessive period of time to carry out repairs, once on a Mazda car and once on a Hyundai. The claimant’s explanation, which was not disputed, was that he was not familiar with the Mazda and had not previously replaced a timing belt on that model of Hyundai. When the respondent spoke to the claimant about the delays, he accused the claimant of swearing at him and throwing tools around the garage. This was denied by the claimant and there was no record of any disciplinary action against him. The respondent also stated later in his statement that he was forced to downsize and often there was not enough work to fill an eight hour day for each mechanic. This is at odds with his complaint about the claimant’s productivity and we note that he does not appear to have added up the billable hours for his other employees. On 14 May, the claimant sent Mr Sterrett a text in the early hours saying that he could not come to work as he had to look after his sister’s children. After a further exchange of texts the claimant arrived at work late, but this was not noted on his attendance records and no disciplinary action was taken. Mr Sterrett said in his evidence that Pauline Boyle had subsequently told him that the claimant did not have to look after the children and so this was a lie on the claimant’s part. This was not put to Mrs Boyle in cross-examination. We do not consider it is a matter on which we need to make a finding.
2.4 In March 2012 the claimant’s mood and general well-being started to deteriorate. He set out in his statement a number of instances where he had attended his doctor on previous occasions and his doctor had invited him to complete a questionnaire regarding his mental health. The claimant deliberately evaded the issue and on one occasion, completed the form with incomplete and inaccurate answers because he believed that he was at risk of developing mental health difficulties, due to a wider family history of such issues. He says in his statement, “I was careful filling in the form as I did not want to be diagnosed with a mental condition and the score was within the normal criteria.” As matters turned out this was short-sighted on the claimant’s part as unfortunately the delay in recognising and treating his condition was clearly to his detriment. In June 2011 the claimant had suicidal feelings and as a result of this crisis was off work for 7-10 days. He was given a sick line by his doctor.
2.5 In
March 2012 the claimant attended his doctor in relation to a cough and had
a discussion with his doctor about his low mood and insomnia. In the early
hours of 21 May 2012 matters reached a head. From March to May, the
claimant’s unchallenged evidence of his situation was as follows,
“I felt that I just couldn’t take any more, I wasn’t sleeping at all for
quite some time at this stage, and was getting maybe four hours sleep in a week
and this led to me having to take time off work to deal with how I was
feeling. At this time I was again having suicidal thoughts and was scaring
myself that something might happen. I was not going out at all and was making
excuses up to avoid seeing friends. I kept to myself and had no confidence. I
struggled with dressing, washing and having breakfast and frequently skipped
breakfast entirely. I suffered loss of appetite. I found myself forgetful and
was unable to plan ahead with no interest in making plans. I did not
acknowledge phone calls or text messages from friends in relation to social
gatherings and outings and general conversation. I began not going out at
weekends, stopped attending the gym and became reclusive. When I did go out, I
tended to do so by myself and went for walks or drives”.
2.6 On the night of 21/22 May the claimant texted the respondent and both his parents saying:-
“I’ve had enough and can’t take much more. I’m not gonna be at work. Nite, nite”.
2.7 Despite his parents and the respondent attempting to contact him, the claimant did not reply to phone calls or text messages. The next day his sister came to see him and persuaded him to go to his parents’ house with her. His mother then persuaded him to go and see the doctor and at that visit, the claimant was diagnosed with depression. The doctor prescribed medication for the claimant, namely Fluoxetine, for which the dose was subsequently doubled to two 20mg tablets each day. The claimant remained on this medication up to the date of the tribunal.
2.8 The claimant’s mother had contacted the respondent on his behalf on 22 May to explain that he had been diagnosed with depression and would require some time off. The respondent Mr Sterrett subsequently asked to meet the claimant later that week about his sick leave. At this stage Mrs Boyle advised the respondent that it was too early for a meeting, the claimant was not well and it would be best to put it off. The claimant’s father delivered a sick line to the respondent on 28 May and during the conversation, the respondent was sympathetic in relation to the claimant’s illness, emphasised what a good mechanic he was and that he would be keen to have the claimant return to work as soon as possible.
2.9 On 8 June at 6.00 pm the claimant and his mother met Mr and Mrs Sterrett of the respondent firm. The claimant indicated that he was still in a low mood and so his mother conducted most of their side of the conversation. Mr Sterrett emphasised the claimant was a smashing mechanic and a good guy and they wanted him to return to work. The meeting on 8 June was extremely constructive. The respondent was sympathetic to the claimant’s illness and indeed indicated that he had been in touch with the Equality Commission, who had advised him that depression may constitute a disability in some cases. He suggested that the claimant might want to work on a part-time basis if this would allow him time to get any therapy that was needed. The claimant had asked about what days he might work, but his mother pointed out that the claimant was not yet well enough to go back to work and that they couldn’t deal with this matter just at that point. The evidence of both parties seems to indicate that this matter would be addressed later. The respondent also asked the claimant for a report on his current medical condition and this was agreed. However, the respondent says he asked for permission to access the claimant’s medical records, which the claimant is clear was not agreed. A few days later a letter was sent to the claimant by the respondents setting out their request for a medical report. Because there was a dispute about this issue later on, we set out the contents of the letter in full:-
“13 June 2012
Dear Conor Boyle
As agreed at our meeting on Friday 8 June 2012 I need to obtain certain information regarding your current medical condition.
In order to assess your current medical condition I need to seek information from your own doctor. In accordance with Part III of the Access to Personal Files and Medical Reports (Northern Ireland) Order 1991, I cannot ask your doctor to supply a report on your state of health without your written consent. I am also required to inform you of your rights under the Order before you give your consent. The statement of your rights under the Order is attached.
I will be grateful if you will give consent to me to approach your doctor for a medical report by completing the consent form attached.
Yours sincerely
Charles Sterrett”
2.10 Attached to this letter were a statement of the employee’s rights in this situation and a consent form for him to complete. The claimant did not immediately return this form to the respondent.
2.11 On 15 June the claimant had a car accident. The context of this was that in March 2012 the claimant had bought a car. It was off the road when he bought it and the respondent lent the claimant a set of trade plates so that he could take it to have it MOT’ed. There was a dispute between the parties about the insurance for the car. However, having heard all the evidence, it is our finding that the respondent, Mr Sterrett, loaned the claimant the certificate of insurance for his business car insurance policy, to take to the DVLA office to have the car taxed. The claimant said that when he called at the DVLA office, he was wearing his uniform shirt for work and that the clerk in the office was satisfied that the policy covered him. On examination of the insurance policy, however, it appears that the claimant was covered only while driving in his role as an employee for the respondent and was not covered for his own car or for social, domestic and pleasure use. Only named drivers on the policy (namely the respondent, his wife, his sons and the garage manager) were covered for social, domestic and pleasure use.
2.12 When the claimant had the road traffic accident in June, he was asked by the police to produce his driving licence and insurance as is usual practice. He telephoned the respondent to ask for a loan of the insurance policy to produce to the police and the respondent then replied that the claimant was not covered for social, domestic and pleasure use. There was a dispute between the parties as to what exactly had occurred, but it is clear that the respondent refused to produce the insurance on the basis that it did not cover the claimant first of all, because he was not covered for social, domestic and pleasure use and secondly, because he was off sick and therefore could not have been driving for the respondent’s business at the time. The claimant, already unwell, was concerned and distressed about this when he attended the police station with his mother. The police advised the claimant that he should ask his employer to produce the insurance to the police and that if the respondent did not do so, both the claimant and the respondent may be prosecuted. This again caused a breach between the claimant and the respondent. We accept the evidence of Mr Sloan that the policy did not cover the claimant for social, domestic and pleasure use, although we note that the language in the certificate of insurance is not particularly clear on this point. We find that the respondent did loan the claimant his insurance certificate in March to allow him to have his car taxed. Even if the claimant was unclear as to the extent of the insurance cover (and we believe he genuinely was), we do not believe that the respondent was under any illusion as to the nature and extent of his insurance cover. Accordingly, we believe that this incident in June led to a deterioration in the relationship between the claimant and the respondent.
2.13 The claimant’s last conversation with the respondent in relation to the insurance matter was on 25 June 2012. As part of that conversation, the claimant also advised the respondent that his doctor had told him that he needed only to produce a sick line and not a detailed medical report. He had been off work for approximately four weeks at this point. The respondent subsequently phoned the claimant back to say that he would require a medical report and that the claimant could not return to work until he had received it. The claimant provided the consent form to the respondent, to allow him to approach the claimant’s GP.
2.14 The respondent’s evidence was that he, in the interim, had sought some advice from his Health and Safety Advisors, Safe First. Coincidently, someone from Safe First was on his premises on one of the days that he had spoken to the claimant on the telephone. The respondent also says that he saw written advice from Safe First which he refers to twice in his witness statement. He specifically said, “Before any contact with the claimant, I sought advice from the LRA, my insurers and Health and Safety Advisors (pages 125, 126 of the trial bundle refer)”. Following questioning at the hearing, the claimant and his representative conceded that the undated written advice received from Safe First had actually been received a couple of months before the hearing and so had not been in the respondent’s possession at the time of his discussions with the claimant in June 2012.
2.15 The claimant had previously sent a detailed letter to his GP on 22 June 2012. In that letter the claimant had set out the background to his current illness, his employer’s request for a medical report and his previous medical history including the incident where the claimant had broken his hand in November 2010 and his suicide attempt in June 2011. The final paragraph of that letter reads:-
“My employer is pressing me to return on a part-time basis but as I am willing and feel able as a result of the medication and support of my family to return to work on a full-time basis. I would be grateful if you will include this in your letter to him”.
2.16 It was the undisputed evidence of the claimant’s sister Suzanne Boyle that on 25 June she had taken the claimant’s sick line down to the respondent’s premises. The respondent refused to acknowledge the sick line. Ms Boyle left the sick leave under the keyboard of his computer. She then left the garage and returned to her parents’ home. A bit later that evening, the respondent’s son Gareth called and returned the sick line. Attached to that was one of the respondent’s business cards with a handwritten note “Conor as per phone call, I need more information before you come back to work for your own good”.
2.17 Following that, the claimant received a letter from the respondent dated 26 June 2012.
This letter states as follows:-
“Dear Conor Boyle
As you have decided not to give us your written consent to approach your doctor for a medical report, to help us to assess your current medical condition, we would now like to request that you attend a consultation with a doctor of our choice, alternatively you could get a letter from your GP describing the reasons your absence, the medication you have been prescribed and for health and safety the possible side affects [sic] expected when taking medication, regarding your work duties which involve driving and operating machinery. Failure to comply with the above request may result in termination of your employment with us. We have been advised by our Health and Safety Inspector that we need more information before you can return to work with us. We don’t know if your GP has the full details of your workload and how your condition has been affecting your ability to work on a day-to-day basis, on which he can base his opinion on you being fit to return to work.
Please contact us as soon as possible to advise us as to what you intend to do.
Regards
Charles Sterrett”
2.18 On or about 28 June, the claimant obtained a letter from his GP, Doctor Herron, in relation to his ability to return to work. This letter states as follows:-
“Dear Sir
I
have been asked to provide this letter to confirm that the
above-named patient, Mr Conor Boyle has been attending this practice
in recent months suffering from throat infections and also depression for which
he is taking fluoxetine. He is managing very well at present and has no side
effects from his medication. He works as a car mechanic and following assessment
here this week has been provided with a statement of fitness for work, allowing
him to return to work on 2/7/12.
Yours sincerely
Doctor M Herron MB BCH BAO DFSSRH DRCOG MRCGP”
2.19 The claimant also telephoned the respondent to advise that his doctor was providing this letter. This was the first letter to confirm the medication being taken by the claimant.
2.20 It was the respondent’s evidence that when he received the GP’s letter of 28 June, he showed it both to his Health and Safety Advisor and his insurers, who advised him that the letter was not sufficient to meet the business’ Health and Safety obligations. There was no written evidence of this advice adduced to the tribunal. As previously noted, the Health and Safety Advisors advice was produced some time after the events and is undated. The respondent advised that there was written advice received from his insurers, but he declined to produce this on the basis that it was privileged. We therefore had no corroboration of the respondent’s account of these events, and observe that the respondent could have waived his privilege in this regard, but chose not to.
2.21 We also note that the respondent’s evidence in relation to the exact advice he was given was contradictory. First of all, he advised us that he was categorically told that the claimant could not return to work until there was clarification in relation to medication and any side effects from which the claimant was suffering. He subsequently said that he was advised by his insurers that the claimant could return to work but that he was to have an appropriately reduced role (such as cleaning) and that his pay should be reduced accordingly. The claimant was adamant that this was not discussed with him, and we accept his evidence on this point.
2.22 The respondent had tried to contact the claimant’s GP direct at the start of July, but had been unable to do so because the GP was on holiday. At the respondent’s request, the claimant had texted him to remind him to ring Dr McNally, the other doctor in the surgery that day, but when the respondent rang he was unable to speak to Dr McNally. A locum doctor at the practice refused to speak to the respondent because he did not have written authorisation from the claimant. It was Mr Sterrett’s evidence that on 5 July 2012, between those telephone calls to the doctor’s surgery and speaking to the claimant later that evening, he had spoken to his insurers who had suggested that the claimant be put on lighter alternative duties (as he would not currently be insured to work on vehicles). The respondent got home from work around 6.00 pm as usual. Around 8.00 pm that evening he had a telephone conversation with the claimant, as a result of which the claimant was told that he could return to work the next day, Friday, 6 July. Mr Sterrett’s statement says, “He was to do his usual job. I did not offer him office work due to the difficulties experienced when he was assigned office tasks in the past.” This is a further contradiction in the respondent’s evidence. While trying to persuade us that he was following insurance advice in delaying the claimant’s return to work, he in fact agreed (initially) to the claimant coming back to his normal duties. His statement was also misleading in that the respondent agreed that the main reason for the claimant not being assigned to office duties was because the claimant did not enjoy that work. The claimant advised the respondent that he was due to attend his cousin’s graduation ceremony at The Waterfront the next day and asked if he could start on the Monday. Initially the respondent was unhappy with this but agreed to it. He emphasised that he did not want to be let down. Following this telephone conversation, the claimant texted him as follows:-
“Thank you Charlie. Very much appreciated. I will be in 1st thing on Monday and I won’t let u down.”
2.23 The respondent’s evidence was that after this initial telephone conversation he felt angry at the claimant having said he could not return to work the next day, Mrs Sterrett’s evidence was that her husband “was very angry about the conversation he had had with the claimant. He swore and slammed a chair into the kitchen table and told me that the claimant wanted another day off and that he wanted to come back to work on the following Monday, 9 July 2012.” The respondent confirmed that he called the claimant back and told him that he had had enough and not to bother coming back to work. The respondent’s statement was:-
“I viewed his attitude to me and his refusal to return as instructed as very serious indeed - especially in light of events leading up to this point. I just did not trust him and did not believe he could work with us any longer.”
The claimant texted the respondent saying:-
“Charlie ring me back please.”
And approximately half an hour later he texted again to say:-
“I will be in work in the morning. I rang 2 say I can’t go to the graduation.”
The respondent texted him back at this point:-
“Don’t bother I’ll ring u tomorrow don’t ring me.”
There was then an exchange of texts as follows:-
The claimant to the respondent:-
“Charlie why not? You rang me and asked me back into work.”
The respondent to the claimant:-
“You refused the offer.”
Claimant to respondent:-
“I didn’t refuse, I asked could I start fresh on Monday morning. Now I will come in tomorrow.”
Respondent to claimant:-
“Don’t bother Conor that’s it from me.”
Claimant to respondent:-
“You had told me you want me back and I have been more than willing to get back into work I will be in for work tomorrow morning as you have asked.”
Respondent to claimant:-
“Conor u will be sent straight home now don’t text me anymore either I’ll ring tomorrow.”
The claimant arrived at work the following morning and was indeed sent home by the respondent.
2.24 The following week the claimant received a voicemail message and text message from the respondent asking him to bring his new uniforms and coat when he came down to collect his toolbox and P45. The claimant did go to the respondent’s garage to collect his tools. When the claimant called the respondent spoke to him outside, thanked him for his hard work and said that if he wanted a reference in the future he would give him a good one. He gave the claimant an envelope at that stage containing his P45 and two pay cheques, including any holiday pay to which the claimant was entitled.
2.25 Following this, the claimant contacted Social Security Agency on 10 July and was placed on Jobseeker’s Allowance of £71.00 per week. He obtained alternative employment with Glen Newell of Newell’s Auto Centre, starting on 3 September 2012. The claimant subsequently sought legal advice and a letter on his behalf was sent to the respondent on 20 July 2012.
2.26 The respondent had advised the claimant that he might wish to contact Glen Newell as he may have a job coming up. The claimant said he initially contacted Mr Newell in July and at that stage there was no vacancy but said he would contact the claimant if anything came up. There was a conflict between the parties as to Mr Newell’s exact role over the summer, whether the claimant had worked for him on a sporadic basis before starting full-time in September 2013 and whether the respondent had tried to persuade Mr Newell not to employ the claimant. Mr Newell refused to appear as a witness in relation to this matter even though he had been served with a Witness Order. In light of this, we make no finding in relation to the events to the exchanges which it was alleged occurred between Mr Newell and Mr Sterrett over the summer of 2013. We simply note as a matter of fact that the claimant has been working for Mr Newell from 3 September 2013 up until the date of the hearing and continues to be employed by him.
2.27 As a matter of fact, we find that the respondent texted the claimant on 10 August to say “Conor before I fill in this Jobseeker’s form for the bureau are you working full-time or part-time for Glen”. The claimant was upset by this. He called over to speak to Mr Newell and asked whether Mr Sterrett had been in touch asking whether or not he was working for him. Mr Newell confirmed to the claimant that the respondent had been in touch with him and Mr Newell’s response had been that he had told the respondent that the claimant had been in touch and that if a job came up Mr Newell would contact him. The claimant said that Mr Newell told him that Mr Sterrett told him that he had only sent a text message to the claimant “To mess with his head”. When it was put to the respondent in cross-examination that the form sent out to him by the Social Security Agency in relation to the claimant did not seek information in relation to any other employment the claimant had taken up, the respondent’s reply was that he had not read the form properly before he sent the text. His statement to the tribunal however indicated that it was necessary for him to make the enquiry about the claimant’s work, “In order to properly complete the form”. This is another contradiction in his evidence. Accordingly, we find that the respondent’s reason for contacting Mr Newell and the claimant in relation to the claimant’s employment with Mr Newell had nothing whatsoever to do with the Jobseeker’s Allowance form.
2.28 The claimant started employment with Mr Newell on 3 September 2012. His employment in that job is £1,326.00 gross per month, £1,112.96 net. This means that the claimant is now paid £14.00 per week gross and £11.02 net less than he was paid when working for the respondent.
2.29 Mrs Sterrett’s evidence was that she prepared written contracts for staff, including the claimant, and disciplinary and dismissal procedures. She agreed however that the documents were held on computer at the respondent’s premises and that only her husband had access to the computer. She conceded that the claimant had not received a copy of his written contract, but that all staff had now received contracts “to cover our backs as we didn’t cover them too well being first time employers”, which was a commendably frank admission.
2.30 It was the respondent’s evidence that he sacked the claimant because of his lies and unreliability. He denied that it was anything to do with the claimant’s disability or depressive illness but he said that he felt that he could not trust the claimant any longer because of his previous lies. There was limited evidence adduced in relation to the lies which the respondent alleged the claimant had told, apart from the incident when the claimant had broken his hand and had not told the respondent the exact circumstances as to how that happened. The claimant’s evidence was that he had smashed his hand into the wall but had been reluctant to tell the respondent this because it was associated with his low mood rate at the time and he was reluctant to speak about something so personal to the respondent, which we find understandable. The main other incident was on 14 May 2012, when the respondent alleged that the claimant had texted him late one Sunday night to say he could not come to work the next day because he was looking after his sister’s children, which was not actually correct. In the event, the claimant did go to work that day although he attended late. The respondent did not record this as an unauthorised absence on his pay sheets, so it appears to us that, at that time, the respondent did not treat this matter as being particularly serious.
3. The Relevant Law
3.1 (1) Unfair Dismissal
The law in relation to unfair dismissal is to be found in the Employment Rights (Northern Ireland) Order 1996 at Articles 126 and following, which provide as follows:-
3.2 Article 126
(1) An employee has the right not to be unfairly dismissed by his employer.
(2) Paragraph (1) has effect subject to the following provisions of this Part (in particular Articles 140 to 144).
3.3 Article 130
(1) In determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show:-
(a) the reason (or, if more than one, the principal reason for the dismissal; and
(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this paragraph if it:-
(a) relates to the capability or qualifications of the employee for performing work of a kind which he was employed by the employer to do;
(b) relates to the conduct of the employee;
(c) that the employee was redundant; or
(d) is that the employee could not continue to work in a position in which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision…
3.4 Procedural Fairness
“Article 130A
(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if:-
(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissal;
(b) the procedure has not been completed; and
(c) the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.
(2) Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) of by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.
(3) For the purposes of this article, any question as to the application of procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to Regulations under Article 17 of that Order.”
3.5 The Statutory Disciplinary and Dismissal Procedures set out in Schedule 1 of the Employment (Northern Ireland) Order 2003 (the 2003 Order) comprises three stages:-
(1) a letter from the employer to the employee setting out the alleged misconduct and inviting the employee to a disciplinary meeting in which he is entitled to be accompanied;
(2) the disciplinary meeting of which the employee is entitled to be heard and to reply to the allegations against him;
(3) written decision to the employee and if appropriate, a right to appeal the decision.
3.6 In this case, the respondents concede that the claimant was dismissed and that they did not comply with the statutory dismissal procedure. They assert however that due to the alleged misconduct engaged in by the claimant, the claimant was complicit in his own dismissal. They referred to the decision of the House of Lords in Polkey v Dayton Services Ltd [1987] 3 ALL ER 974. However, it has been noted that the wording of Article 130A of the Employment Rights (Northern Ireland) Order 1996 is not identical to the ruling of the House of Lords in Polkey. The respondent’s representative argued that the tribunal should reduce any compensatory award by any percentage up to 100% in accordance with the ruling in Polkey to reflect the chance that following procedures correctly or adequately would have affected the outcome.
3.7 Article 17(3) of the Employment (Northern Ireland) Order 2003 allows the tribunal to apply an uplift of between 10% and 50% on the compensatory award in an unfair dismissal case where dismissal is held to be procedurally unfair, where it is just and equitable to do so. The respondent relies on the decision in Wardle v Credit Agricole [2011] EWCA where it was stated that a 10% uplift ought to be applied where an employer has merely ignored procedures.
(2) Failure To Pay Notice Pay Under Article 118 Of The Employment Rights (Northern Ireland) Order 1996
3.8 An employee is entitled to one weeks’ notice for each year of service up to a maximum of 12 weeks. In this case the claimant had four complete years service and it was conceded by the employer that he had not been given any notice of the termination of his employment.
(3) Obligation of the employer to provide written Terms and Conditions of Employment under Article 33 and following of the Employment Rights (Northern Ireland) Order 1996
3.9 An employee is entitled to be provided with a written statement of particulars of employment within two months of the commencement of his employment. Article 27 of the Employment (NI) Order 2003 provides that where the tribunal finds that no contract has been provided, it shall award two weeks’ gross pay and may award up to four weeks’ gross pay if it considers it just and equitable to do so.
3.10 (4) Disability Discrimination
The law in relation to Disability Discrimination is set out in the Disability Discrimination Act 1995 (as amended) (“the 1995 Act”). The relevant provisions in respect of this case are as follows:-
“Section 1(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.
(2) In this Act “disabled person” means a person who has a disability.
The relevant provisions of Schedule 1 are as follows:
2(1) The effect of an impairment is a long term effect if –
(a) if it has lasted at lease twelve months;
(b) the period for which it lasts is likely to be at lease twelve months; or
(c) it is likely to last for the rest of the life of the person affected …
4(1) An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following –
(a) mobility;
(b) manual dexterity;
(c) physical co-ordination;
(d) continence;
(e) ability to lift, carry or otherwise move everyday objects;
(f) speech, hearing or eyesight;
(g) memory or ability to concentrate, learn or understand; or
(h) perception of the risk of physical danger …
6(1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is be treated as having that effect.
(2) In sub-paragraph (1) “measures” and includes, in particular medical treatment and the use of a prosthesis or other aid.
3.11 We have taken into account in particular the test as set out by the Employment Appeal Tribunal in Goodwin v The Patent Office [1999] IRLR 4 where the EAT set out the questions to be addressed by a tribunal in considering whether a person was disabled. These are as follows:
“(1) Does the applicant have an impairment which is either mental or physical?
(2) Does the impairment affect the applicant’s ability to carry out normal day-to-day activities in one of the respects set out in Schedule 1, para 4(1) and does it have an adverse effect. The Act is concerned with the person’s ability to carry out activities. The fact that a person can carry out such activities does not mean that his ability to carry them out has not been impaired. The focus of the Act is on the things that the applicant either cannot do or can only do with difficulty rather than on the things that the person can do.
(3) Is the adverse effect substantial? “Substantial” means “more than minor or trivial” rather than “very large”. The tribunal may take into account how the applicant appears to the tribunal to “manage” although it should be slow to regard a person’s capabilities in the relatively strange adversarial environment [of a tribunal] as an entirely reliable guide to the level of ability to perform normal day-to-day activities. The tribunal should examine how an applicant’s abilities have actually been affected whilst on medication and then consider the “deduced effects” – the effects which they think there would have been but for the medication – and whether the actual and deduced effects on ability to carry out normal day-to-day activities in clearly more than trivial.
(4) Is the adverse effect long-term? These provisions appear to be straight forward.”
3.12 In relation to consideration of a mental impairment in particular, we are mindful of the guidance given by the Employment Appeal Tribunal in J v DLA Piper UK LLP [2010] IRLR 936. The EAT held that at the correct approach for a tribunal to consider it is follows:-
“(i) It remains good practice for a tribunal to state conclusions separately on the question of impairment and of adverse effect (and, in the case of adverse effect, the questions of substantiality and long-term effect arising under it) as recommended in Goodwin.
(ii) However, in reaching those conclusions, the tribunal should not proceed by rigid consecutive stages. Specifically, in cases where there may be a dispute about the existence of an impairment it will make sense to start with by making findings about whether the claimant’s ability to carry out normal days activities is adversely affected (on a long-term basis) and to consider the question of impairment in the light of those findings.
(iii) These observations are not intended to, and we do not believe they do conflict with the terms of the guidance in existing case law. In particular, we do not regard the Rippon College and McNicholl cases as having been undermined by the repeal of paragraph 1(1) of Schedule 1 to the DDA, and they remain authoritative save insofar as they specially referred to the repealed provisions.” The Court also noted that the distinction between the mental illness known as clinical depression and depression as a reaction to adverse circumstances was routinely made by clinicians and should in principle be recognised for the purposes of the DDA. They noted that it may be a difficult distinction to apply in a particular case, and the difficulty can be exacerbated by the looseness with which some medical professionals and most laypeople use terms such as “depression” (clinical or otherwise) “anxiety” and “stress”.
3.13 In Spence v Intype Libra Ltd UKEAT/0617/06 Mr Justice Elias gave the judgment of the EAT to the effect that the tribunal should assess the “long term” issue without regard to events occurring after the relevant date (ie, the date of the alleged discrimination). They observed that as a matter of logic subsequent events could not be material, for example, if an employer dismissed someone who had a disability likely to last twelve months, the legal position could not be altered if the employee made an unexpected recovery shortly thereafter. Conversely, if an employee was not disabled when the alleged discriminatory act occurred, the claimant could not be found to be disabled because of his or her condition took an unforeseen turn for the worse thereafter. A different approach was taken in McDougall v Richmond Adult Community College UKEAT/0589/06 where His Honour Judge Mullen QC held that the approach in case of Greenwood was to be preferred, so that when considering the period the effect in question was likely to last, the employment tribunal should have regard to material developments between the date of the alleged discrimination and the date of the hearing. He commented that it was unattractive for the employment tribunal to speculate and to ignore reality.
4. Reasons
4.1 Unfair Dismissal
The respondent conceded that the claimant had been dismissed by him and that the statutory disciplinary procedures had not been followed. He argued however that the claimant had contributed towards his dismissal by his unreliability and his lies. Having considered the respondent’s evidence and taking into account the facts found, we do not believe that this was the principal reason for the claimant’s dismissal. The two incidents we have referred to above namely the claimant’s broken hand and his phone call on 14 May 2012 were not sufficient grounds for dismissal, nor do we accept that the respondent genuinely viewed them as lies when they occurred. We find that a number of the matters to which the respondent sought to refer as were so dated (having occurred in 2010 and even 2009), that we cannot take them into account as a real reason for the dismissal. If these matters had caused the respondent such concern as he now alleges, he should have disciplined the claimant at the time. The respondent alleged that the claimant had failed to attend work on a number of occasions in 2012. The respondent referred us to the attendance sheets which he kept for staff. Those for the claimant did not reveal any ongoing difficulties in relation to the claimant’s attendance at work. The days when he was absent are indicated by the letter “A” indicating that they were authorised absences. The respondent also indicated that the claimant had taken too long to do certain jobs and had not actually carried out a fully day’s work on a number of occasions. We were shown diary entries for some of those days, however, we were not actually shown diary entries for every day that the claimant worked nor were we shown the hours worked by other members of staff. The respondent stated in his statement to the tribunal that often there was a lack of work, that he had been forced to downsize by closing a second garage he owned and that in fact there was often not enough work to fill in an entire day for each mechanic. The respondent’s evidence in this matter was therefore contradictory, as it was on a number of issues which we have referred to in our findings of fact.
4.2. Having heard all the evidence and having had the opportunity to observe the demeanour of the respondent, during the hearing we are of the opinion that the respondent simply lost his temper on 5 July. We believe that he was frustrated by the claimant’s insistence on returning to work. The respondent had not properly explained to the claimant the concerns of his insurance company in relation to the claimant resuming work without the insurance company’s approval. The respondent had not properly explained to the claimant that he would not be able to work on vehicles until the insurance company gave him clearance to do so. We also believe that there was an element of annoyance on the respondent’s part over the “car insurance issue”. We believe that the respondent was concerned that the police would investigate this matter further and that it would, at the very least, put him into difficulties with his insurance company if that were the case. The respondent’s own statement makes reference to his volatility. His wife in her witness statement refers to events of 5 July. She said that when her husband came in from the garden, having spoken to the claimant for the first time, he was very angry. “He swore and slammed a chair into the kitchen table and told me that the claimant wanted another day off and that he wanted to come back to work the following Monday, 9 July 2012. “My husband then picked up his phone again and went outside. When he returned he told me he told me he had just sacked the claimant”.
4.3 We had an opportunity to observe the respondent’s volatility at first hand during the course of the hearing. We therefore believe that the dismissal of the claimant was not connected with the claimant’s behaviour, but was a result of the respondent’s volatile behaviour.
4.4 We note that the respondent failed to carry out the Statutory Disciplinary and Dismissal Procedures in relation to this matter even though there were Terms and Conditions of employment and a disciplinary policy prepared for his staff. We have considered whether the claimant would have been dismissed in any event, even if the correct procedures had been followed. It is our view that the respondent has not shown that there were grounds for dismissing the claimant on 5 July 2012. We have considered whether it will be just and equitable in all the circumstances to grant an uplift to the compensatory award to the claimant and we believe that it would be just and equitable in all the circumstances to award an uplift of 30%. We find therefore that the claimant was unfairly dismissed by the respondent and that he should be awarded compensation as follows:-
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Basic Award: |
4 years complete service 3 over the age of 22 1 below the age of 22, ie 3½ weeks @ £266.66 per week |
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£ 933.31
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Compensatory Award
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Loss of Earnings: |
From 5 July 2012 to 3 September 2012 £266.66 x 8 weeks |
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£2,133.28 |
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After 3 September 2012 the claimant found alternative work which was paid at the rate of £11.02 per week less than his employment with the respondent. He therefore has an ongoing loss between the date of his re-employment and the date of hearing. This loss can be quantified as follows:-
3 September 2012 to 18 April 2013 = 33 weeks x £11.02
Loss of statutory rights |
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£363.66
£500.00 |
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Ongoing/Future Loss: |
We believe it would be appropriate to award 52 weeks in respect of future loss as follows:-
52 weeks x £11.02 |
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£573.04 |
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Compensatory Award
Uplift on compensatory award 30%
Total award for unfair dismissal
The claimant was in receipt of Jobseeker’s Allowance between 10 July and 3 September 2012. The amount of the compensatory award which relates to this period is (£266.66 x 7 weeks) |
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£3,569.98
£1,070.99
£5,574.28
£1,866.62 |
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The protected period is 10 July 2012 to 3 September 2012. The amount by which the compensatory award exceeds the protected award is
This is a decision to which the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Supporting Regulations (NI) 1996 (as amended) apply.
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£1,703.36
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4.5 It was conceded that the claimant was dismissed without notice, the notice pay has however been included in the compensatory award set out as above and we therefore make no further award in relation to this matter.
5. Failure To Provide Written Terms And Conditions Of Employment
5.1. Mrs Sterrett’s evidence was that she carried out most of the administration in relation to the business and that she had prepared written terms and conditions of employment for the claimant when he started work, she advised that this had been put on the computer in the office at work and that employees had access to this. However, when questioned further in this matter she conceded that it was only Charlie (her husband) who had access to this information. Accordingly, we find that the claimant was not provided with written terms and conditions of employment in all the circumstances of the case we consider that it would be appropriate to make an award for four weeks’ gross pay in relation to the respondent’s failure to provide written terms and conditions of employment as follows:-
£320.00 x 4 = £1,280.00
DISABILITY DISCRIMINATION
5.2. The first issue which we have to address is whether or not the claimant is a disabled person within the meaning of the Disability Discrimination Act 1995 (as amended) see paragraph 3.10-3.12 above). The respondent said in his conversations with the claimant that he had sought advice from the Equality Commission and he was satisfied that in certain situations depression could constitute a disability within the meaning of the legislation. We find that depression is a mental impairment and that the claimant was diagnosed with depression on 21 May 2012. We then turned to the other three limbs of the test in relation to this matter.
While we have no difficulty in finding that the claimant was suffering from depression from May 2012 and continued to suffer from depression at the date of his dismissal, it is more problematic to make a finding in relation to whether he was suffering in depression in 2010 when no diagnosis had been made. We also noted that at that time, the claimant actively misled his doctor because he did not want to be diagnosed as suffering from depression. We believe however on the basis of the case law set out above at paragraph 3.12, that we should consider the factual situation in which the claimant finds himself currently. He was formally diagnosed with suffering from depression on 21 May 2012. At the date of the hearing in April 2013 he remained on medication for depression and did not give any indication to us that he was likely to come off that medication in the near future. Accordingly, we are satisfied that his condition was long-term in that it had lasted for almost 12 months and was therefore likely to last for at least 12 months.
(iv) In relation to the issue of whether his condition had a substantial adverse effect on his ability to carry out day-to-day activities, we find this a more difficult question to address. The claimant himself was not altogether clear about the way in which his condition impacted on his ability to carry out “normal day-to-day activities” within the meaning of the 1995 Act. We refer to paragraphs 3.10 and 3.11 above where we have set out the requirements of the legislation. The most detailed description of the effect of his condition was set out by the claimant in his witness statement in paragraph 14 and has been quoted at paragraph 2.4 above. He describes not sleeping, having suicidal thoughts and making excuses to avoid seeing friends. He said he struggled with dressing, washing and having breakfast and frequently skipped breakfast. He says he suffered loss of appetite, found himself forgetful and was unable to plan ahead. He became more and more reclusive. We had considered in detail the contents of paragraph 4 of Schedule 1 to the Disability Discrimination Act where the nature of the day-to-day activities to be considered is set out. The only category which we can see which might conceivably affect the claimant is “(g) memory or ability to concentrate, learn or understand”. However we have no clear evidence in relation to the effect of the claimant’s condition on him in relation to such activities. We note that the effect must be “adverse” and that it must be “substantial”, in other words it must be more than minor or trivial. While the respondent indicated that he felt that the claimant’s work performance was not as good as previously, the claimant himself denied this, although he did say he had “good days and bad”. We have taken account also of the fact that Dr Herron’s report of 23 November 2012, which was produced to us, refers to the diagnosis of depression. It is a short report and he states as follows:-
“I noted the diagnosis of depressive disorder was made on 21 May 2012, but that he had disclosed on previous consultations from November 2010 that he was suffering from certain symptoms of depression for several years prior to his formal diagnosis. At diagnosis this was considered a moderate to severe depression although I could not comment on future prognosis. With respect to the statutory definition of a disability, given the prolonged period of time and symptoms, I would state that Mr Boyle’s condition meets this.”
The doctor does not appear to given detailed consideration to the questions of what “day-to-day activities” within the meaning of the DDA 1995 the claimant could or could not carry out and whether the effect was substantial and/or adverse. The burden of proof rests on the claimant clearly to establish that he is disabled within the meaning of the Act. We fully accept that the claimant suffers from depression, and he has shown considerable character in addressing his illness, not least in coming to the tribunal and giving evidence about deeply personal matters in this regard. We also find it commendable that he has found alternative employment and has sustained this from September 2012 to date.
However, we are not persuaded that he meets the statutory definition of a disabled person within the meaning of Section 1 of the 1995 Act, in that we do not believe he has demonstrated to us that his illness has a “substantial and adverse” effect on his ability to carry out any of the day-to-day activities detailed in the 1995 Act. We reach this view with some hesitation, as we have considerable sympathy for the position in which the claimant found himself in the spring of 2012. However, there is not sufficient evidence before us to enable us to make a finding that the claimant meets the definition of a disabled person within the 1995 Act. Accordingly, we find that he was not disabled. There is therefore no need for us to continue to address the other questions in relation to disability discrimination, and his claim of disability discrimination will be dismissed.
5.3. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 15-18 April 2013, Belfast.
Date decision recorded in register and issued to parties: