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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Moffett v Northern Health and Social Car... [2013] NIIT 01889_12IT (12 September 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1889_12IT.html
Cite as: [2013] NIIT 01889_12IT, [2013] NIIT 1889_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1889/12
CLAIMANT: Colette Moffett
RESPONDENT: Northern Health and Social Care Trust
DECISION
The decision of the tribunal is that the claimant was not discriminated against on grounds of her disability by the respondent nor was she victimised by the respondent for the reasons set out in this decision.
Constitution of Tribunal:
Chairman: Miss E McCaffrey
Members: Mr P Killen
Mr J Patterson
Appearances:
The claimant appeared in person.
The respondent was represented by Mr Conor Hamill BL instructed by Ms C Tiffney of the Directorate of Legal Services, Regional Business Services Organisation.
1. Issues
1.1 The issues for the tribunal to consider were as follows:-
1.2 Whether the claimant had a disability as defined by Part 1 Article (1) of the Disability Discrimination Act 1995 (as amended) during the period to which this claim relates?
1.3 If the answer to (1.2) above is “no” then does the Industrial Tribunal have jurisdiction to hear the claimant’s claim of disability discrimination?
1.4 If the answer to (1.2) above is “yes”, then did the respondent subject the claimant to direct disability discrimination and/or victimisation (the protected act being the claimant’s previous claim of disability discrimination case reference number 443/10) over the period March 2010 to the claimant’s voluntary early retirement on 27 April 2012 in relation to:-
(1) The continued redeployment of the claimant to the role of Clerical Officer in Ballymoney MHRC which was confirmed as her substantive post in May 2011?
(2) Its handling of the claimant’s request to be considered for alternative employment?
(3) Its decision in September 2011 to subject the claimant to an investigation under its disciplinary procedure with regard to allegations relating to her conduct and to relocate the claimant from her place of work for the jurisdiction of the investigation?
1.5 From March 2010 onwards, was there any failure by the respondent to make reasonable adjustments in relation to its efforts to redeploy the claimant to a more suitable substantive post and specifically, was there any failure to make reasonable adjustments in relation to the claimant’s clerical role in Ballymoney MHRC?
1.6 What was the nature and extent of any detriment suffered by the claimant as a result of the alleged discriminatory conduct of the respondent?
1.7 Should the claimant succeed in all or any of her claims what are the appropriate remedies?
The factual issues to be considered were set out in the record of the Case Management Discussion on 10 May 2013 which also set out the timetable for the exchange of witness statements, exchange of additional information and discovery and the timetable in that case. At the outset of the hearing the claimant confirmed that she was not proceeding with the claim of age discrimination which had initially been pleaded.
It was also noted by the panel that although some of the claims brought by the claimant appeared to be out of time on face of the documentation, at a preliminary hearing on 22 March 2013 the tribunal considered it just and equitable to extend time to 26 September 2012 to enable the claimant to continue her claims for discrimination on the basis of disability and age.
At the start of the hearing, the respondent conceded that the claimant met the requirements of Article 1(1) and Schedule 1 of the Disability Discrimination Act 1995 (as amended) and that she was a disabled person for the purposes of the legislation.
2. The Facts
2.1 We had the benefit of receiving witness statements from the claimant, from Mrs Diane Spence, Business Service Development and Governance Manager of the Northern Health and Social Care Trust and Janet McCartney, Senior Human Resources Manager of the respondent. A statement provided by Dr Tony McGread, Consultant Occupational Health Physician was also tendered to the tribunal, and various other documents were put before us. On the basis of the evidence before us, we make the following findings of relevant facts.
2.2 At the outset it should be noted that the claimant made a number of allegations in the course of her cross-examination which did not form part of her claim to the Industrial Tribunal nor were they part of her statement of evidence to the tribunal. On a number of occasions when she was asked why she had not included these allegations, her answer was that she did not know what she was supposed to put into her statement. The record of proceedings for the Case Management Discussion held on 10 May 2013 clearly states that a witness statement must be a complete statement of the evidence relating to the issues in respect of both liability and remedy which the witness wishes to give to the tribunal. This is stated in bold type in the record of proceedings, and the claimant had ample time to prepare her statement and to submit it to the respondent.
2.3 The claimant was employed by the respondent as a Band 2 Clerical Officer. She worked for the respondent for over 22 years in total. She had worked at the Armour Day Centre in Ballymoney for approximately 10 years. From 1995 on, the claimant suffered with back pain, which was described as “muscular skeletal problems”. She also had difficulties with her right shoulder which ultimately required surgery in May 2010. Due to reorganisation within the Trust she was redeployed to the Ballymoney Mental Health Resource Centre (MHRC) in December 2009. At that time it was agreed that her locality manager (Claire Armour) would have the post risk assessed to ensure its suitability for the claimant as per recommendations from Occupational Health. It was also noted that although the Ballymoney post was identified as “temporary” (due to issues regarding funding of the post) efforts would be made to retain the claimant in that role subject to suitability/performance. This was a time of change within the respondent Trust as three Trusts had amalgamated into one and there were issues to be resolved in relation to the funding of various posts. In this regard the claimant was in the same position as a number of other staff who, under “legacy arrangements”, were in posts which straddled more than one directorate within the respondent Trust. They were all considered “displaced officers” and as such had priority in being redeployed to suitable posts at the same grade if and when they became vacant. In this context, it is relevant to note that a post would only be cleared to be filled when it was confirmed as a funded, permanent post.
2.4 Various issues relating to the initial work assessment and the claimant’s placement in post from the background to the initial claim she had brought against the respondent in 2010 and which was resolved by a confidential settlement in January 2011.
2.5 Early in 2010 the claimant suffered with problems in her back and shoulder. In May 2010 she was admitted to hospital for surgery on her shoulder and had a period of sick leave which lasted until November 2010. Prior to her return to work on 9 November 2010, she met Claire Armour, Craig Greene (the Health and Safety Officer) and the claimant’s Trade Union representative. It was agreed that the claimant could carry out all of the duties of her post except for any associated with filing and it was agreed that she should not have to undertake filing duties. The claimant could type (including audio typing) for 20 minutes at a time with a five minute break in between and she was provided with earphones which she would find easier to put on and take off when necessary. An assessment of her work station was carried out, including an adjustment of her screen and chair where necessary and a foot rest for her audio pedal had been ordered. It was also suggested that software would be provided which would time the claimant’s working sessions and advise her when to take a break. It was agreed that the claimant would have a phased return to work over a period of a month. There was also to be a wrist extension support for the claimant, to assist her in answering the telephone. This did not arrive and the claimant dealt with this by moving the telephone to a position where it was more accessible for her. All of the adjustments were put in place promptly apart from the software programme, which it transpired was not available.
2.6 The claimant believed that the respondent took too long to put these adjustments in place. Her main concern was over her desk which she said was too small and she indicated that she did not receive a bigger desk until June the following year. In fact the email sent by Claire Armour to Diane Spence following the assessment meeting makes no mention of the desk size. However following a discussion between the claimant and Claire Armour in early June 2011, Claire Armour noted that the desk the claimant was working at seemed to be small and ordered a new desk for her which arrived within a week.
2.7 The claimant on a number of occasions raised queries in relation to various posts to which she wished to be redeployed and which she believed were more suitable for her. At this stage (late 2010 and early 2011) the claimant was still categorised as a “displaced officer” and so eligible for redeployment. The clamant however did not like her work at MHRC. The respondent did investigate a number of vacancies, but some of these were unsuitable due to heavy filing duties. The claimant maintained that there were three posts to which she could have been redeployed and which she said the respondent had not checked for her. These were (1) a Clerical Officer in the Physiotherapy Department at Ballymoney Hospital, (2) a Clerical post at the Macmillan Nursing Team in Ballymoney and (3) a Clerical Officer post at Roddens Residential Home in Ballymoney. It should also be said that the claimant indicated that she preferred to work in Ballymoney and this restricted the number of vacancies which were available to her. She had a number of meetings with Diane Spence and her union representative at various points in 2010 and 2011 and emails were sent in between times.
2.8 In December 2010 the claimant notified Mrs Spence that she had been called for jury service during the week commencing 17 January 2011. She also requested annual leave on Thursday 13 and Friday 14 January. Subsequently on 11 January 2011, the claimant emailed Mrs Spence indicating that she had been having difficulties with her back and saying that that day (11 January 2011) “my back is so painful I can hardly walk about. When I sit down I cannot get up. When I walk about I can barely sit down. I am taking pain spasms that are unbearable. I am now back on my pain killers.” The claimant however was at work and did not ask to go home on that occasion which would have been normal practice. Within a short time Mrs Spence emailed her back, sympathising with the pain the claimant was suffering and indicating that she would pass this information to Dr Hamilton (the Occupational Health Doctor) as the claimant was due have a review appointment with him on 24 January. At this point the claimant was carrying out approximately 50% of the duties of her post and Miss Phyllis Kelly had been engaged to carry out filing as support for the claimant. The claimant objected to being referred back to Occupational Health at this point and at the hearing of this case indicated that she suffered from spasms on a regular basis. However this was not the impression that was left by her email on 11 January. On 12 January there was a telephone conversation between the claimant and Mrs Spence and Mrs Spence then confirmed by e-mail that Occupational Health would continue to seek an appointment with Dr Hamilton on 17 January, should there be a cancellation. She went on to say that Occupational Health would also facilitate an appointment in Ballymena if at all possible on 13 January. The claimant did not attend an OH appointment arranged in Ballymena on 13 January and missed a scheduled appointment on 17 January, due to jury service. Mrs Spence continued to try and arrange an Occupational Health appointment but the claimant contacted Occupational Health direct to reschedule the appointment. This caused some concern on the part of Mrs Spence who wanted to try and have the claimant assessed by Occupational Health as soon as possible. Ultimately the claimant attended Occupational Health on 21 February 2011, after a number of appointments had been arranged and subsequently rearranged.
2.9 The claimant expressed her annoyance in emails to Mrs Spence, saying that she could not see “the panic” about getting her an Occupational Health appointment until her jury service was over and indeed the claimant alleged this was an act of victimisation on the part of Mrs Spence. She made allegations that Mrs Spence had put her under pressure in relation to the Occupational Health appointments early in 2011. When she was asked whether she actually had not wanted Mrs Spence to do anything about her complaint of back pain her answer was that she wanted Mrs Spence to tell her to go home and rest by the way of a reasonable adjustment. We note that while the claimant was unable to attend an Occupational Health appointment at any point during the period of January and February, she was able to travel back and forth to Antrim Court to attend jury service. It does not appear to have occurred to her to consider the possibility of being excused jury service because of her back and shoulder difficulties.
2.10 Mrs Spence emailed the claimant on 15 February 2011 pointing out that she needed the Occupational Health report to enable her to consider the longer term position. She also pointed out that since November 2010 the claimant had been working on restricted duties while employed on a full-time basis and was being provided with full-time support (in the form of Miss Kelly to help with the filing) to ensure that the claimant was being helped while ensuring that work was not compromised. She pointed out that the report from Occupational Health was needed to enable Mrs Spence to consider the longer term position. She also pointed out that the current adjustment to the claimant’s working arrangements could not continue indefinitely. She emphasised that she believed it was a reasonable expectation for the claimant to make an effort to attend the planned appointment.
2.11 She also noted that where a case for redeployment needs to be considered due to health reasons, the Department has to consider reasonable adjustments first of all before considering redeployment to another Directorate. The claimant attended an Occupational Health appointment on 21 February 2011 with Dr Hamilton. That report indicates “Ms Moffett remains fit for work with the already implemented restrictions in place.”
2.12 In the interim Mrs Spence was investigating a number of possible posts, both those notified to her by the Human Resources Department and by the claimant. She explained that temporary posts within the Department might not be funded and therefore would not be released to be filled on a permanent basis, therefore they could not be considered as redeployment options for the claimant. Of the three posts which the claimant had identified as suitable for her, it was noted that the posts as a Clerical Officer at the Elder Care Team at Armour Day Centre, Ballymoney had been “removed due to integrated teams” and the post at the Roddens Residential Home was a Band 3 (not a Band 2) and in addition was not currently vacant. The post as a Clerical Officer within the Physiotherapy Department of the Robinson Hospital at Ballymoney was not within the responsibility of the officer who responded at that time.
2.13 Dr McGread carried out a further review of the claimant’s health situation on 19 April 2011. He noted that she was clearly fit for work as a Clerical Officer with some restrictions and that she was clearly managing tasks such as audio typing, photocopying, telephone duties and face-to-face duties at reception. He also noted that she had a part-time job with another employer as a receptionist and managed that effectively as well. He indicated that she should be able to undertake typewriting, photocopying, telephone duties and basic administration, she could lift and carry up to 2.5 kg in weight but that she could not undertake the forceful movements associated with the right shoulder which would be required for filing of clinical files. She could not reach above shoulder height with the right shoulder and could not reach for any items above that level. He confirmed that the situation would not change in the future and hence was permanent.
2.14 Based on this information Mrs Spence came to the conclusion that she could accommodate the claimant in Ballymoney MHRC with the necessary restrictions in place. She proposed that there would be a redistribution of filing duties to the Band 4 and Band 3 Clerical Officers in the MHRC and a review of their duties which Ms Moffett could complete to create the necessary capacity.
2.15 On 21 April Janet McCartney updated Mrs Spence in relation to the Physiotherapy Post at Robinson Hospital. She indicated that one full-time post had no clearance to fill permanently but there was a half-time permanent vacancy. The same day Mrs Spence emailed the Resourcing Department asking for some further information regarding the half-time post so that she could discuss this with the claimant. Later that afternoon she was advised by Resourcing Department that the half-time post was being held back for the Acute Directorate. Mrs Spence then asked the Resourcing Department to check if the post was available and to seek clarity if a redeployment should take priority. Due to sick leave in the Resourcing Team she was advised only on 9 May that the half-time Physiotherapy Post was released to the recruitment team to be processed urgently.
2.16 On 28 April Mrs Spence emailed the claimant to discuss the reports that had been received. The claimant continued to ask for redeployment. She did not accept the report received from Occupational Health and that there were no grounds to move her to another post on grounds of disability.
2.17 At the hearing the claimant objected to the fact Phyllis Kelly was being moved to a different unit and in her words “my reasonable adjustment was being removed from me”. Mrs Spence noted in her witness statement that a meeting was convened with the administration staff at MHRC on 19 May to try to agree how work would be allocated and specifically to agree that the other Clerical Officers at the centre would carry out the filing work, and the claimant would deal with typing duties to free her colleagues to deal with filing.
2.18 Unfortunately this meeting was not particularly productive. Again the claimant queried why the post at the Physiotherapy Department had not been checked out for her. On 23 May 2011 Mrs Spence emailed the claimant to confirm a meeting they had had on 12 May where she says
“I was in the process of checking the physio post for you, when I received confirmation from Occupational Health that you are fit for your substantial post, with no need to redeploy. Therefore there is not a requirement to look for suitable alternative employment.
I thought I had made this very clear to you at our meeting, along with you no longer being considered a displaced officer. I will confirm in writing a meeting with you as well as my comment regarding you now being in a post that would remain in the structure in the MHRC, your Trade Union has also confirmed this with me. Occupational Health confirmed they had no reason to review you.”
2.19 The claimant alleged in a grievance she lodged in August 2011 that Mrs Spence had treated her concerns in a flippant way. She subsequently withdrew this at the tribunal.
2.20 When it was put to her that the various efforts, via email, meetings and telephone conversations with Human Resources which Mrs Spence had made to try to facilitate her and to show that she was taking the claimant’s health seriously, the claimant’s answer was “Not on all occasions.” Later in August 2011, when Mrs Spence had tried to arrange a meeting to discuss the claimant’s Occupational Health report on 23 June, this meeting had to be postponed because of the unavailability of the claimant’s Trade Union representative. This letter set out the assessment by Dr McGread and set out that the claimant would be expected to carry out all of the duties of her role apart from “pulling clinics” ie listing down files for clients. It was also agreed that administration tasks such as copy typing and audio typing would be redistributed within the administration team including the claimant, to create capacity to allow other team members to pull the clinic files. The letter goes on to state that Dr McGread had not recommended redeployment therefore the claimant was not on the redeployment list. She was advised that if she saw any post advertised which she was interested in she should apply in the normal way. The claimant indicated that she did not know that she could apply for a transfer from her permanent post after 22 years in the Trust. She did not however challenge this.
2.21 The claimant also made an allegation that Claire Armour had victimised her in that when she returned to work after her shoulder surgery in November 2011, she had initially been reduced to half pay because her “return to work” paperwork had not been forwarded by Claire Armour to the Payroll Department. She also indicated that Ms Armour had victimised her in failing to process travel claims for the claimant. This had not however been included in her witness statement nor in her claim form. There was no other evidence that this was victimisation or that this actually happened.
2.22 On 14 September 2011 a patient called at the MHRC asking for the name of the person he had spoken to earlier on the telephone as he was unhappy with her telephone manner. On checking the telephone book, the patient was advised by the Band 4 member of staff Donna Tohill that he had spoken to the claimant. The claimant was very distressed by the fact that Ms Tohill had given her name to this patient who was upset, she was concerned that she might be in danger because of this. A meeting then took place in relation to this matter with the claimant, the Team Leader (Martin Hone) and Claire Armour on 16 September. It was noted that there was no breach of confidentiality as it is standard practice for someone answering the telephone to give their name. The claimant however indicated that she never gave her name when she answered the telephone. The upshot of this was that there was a bad atmosphere and a difference of opinion between the claimant and Donna Tohill. It was agreed that the door into the main office would be locked pending a keypad being installed, for better security. This meant that the staff actually in the office had to ensure that they let the other staff in and on a couple of occasions Donna Tohill had been locked out of the office as the claimant would not let her back in. The claimant refused to discuss these matters with Ms Armour or her Team Leader without her union representative being present. Donna Tohill indicated that she could not remain in this atmosphere as she found it too stressful. Mrs Spence arranged to move the claimant to an office at the Route Complex and provided her with tapes to transcribe. This was an alternative to a precautionary suspension. The claimant complained that she had been isolated and that this was an act of victimisation. She also objected to a preliminary investigation being carried out in relation to the events which had occurred as again, she believed that this was an act of victimisation. Mrs Spence’s evidence was that while the claimant was in an office on her own, it was in a shared corridor with other trust administration staff and with access to a staff room. Work was delivered for the claimant twice a day. The claimant maintained that these events were intended to remove her from office and the decision to have the investigation was victimisation because of her previous claim.
2.23 A couple of days after the initial incident, the claimant was annoyed that she had been told by Claire Armour to stop typing up a report of the meeting for her union representative. Ms Armour advised the claimant that this should be completed in her own time and not in working hours. The claimant objected to this because she said that she thought it was okay as it was work related. The claimant modified her evidence to indicate that she believed the investigation had been started as an act of disability discrimination. She later conceded in cross-examination that the reason the investigation had occurred was because of the incident when Donna Tohill gave her name to the patient, and that her fear of this patient had nothing to do with her disability. She also agreed that her move from the MHRC to the office at the Route Hospital was nothing to do with her disability. She subsequently varied this to say that she believed that the investigation and the move to another location was malicious, but not an act of discrimination, so her complaint of victimisation in this regard was withdrawn.
2.24 The claimant subsequently applied for voluntary early retirement in March 2012, and was successful. Following her retirement the claimant continued to work in her part-time post for Ballymoney Council. She had applied for a number of other jobs but advised that none of these was suitable for her and she had been unsuccessful in obtaining other employment.
The Relevant Law
3. The claimant in this case has made two claims, one of disability discrimination in relation to the alleged failure by the respondent to make reasonable adjustments for the claimant and secondly a claim of victimisation due to the claimant having previously brought a claim of disability discrimination. The relevant law in relation to each matter is as follows.
3.1 The duty to make reasonable adjustments
The relevant law is set out in the Disability Discrimination Act 1995 (as amended) at Section 4A which reads as follows:-
4A(1) Where –
(a) a provision, criterion or practice applied by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer,
places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.
(2) In sub-section (1), “the disabled person concerned” means –
(a) in the case of a provision criterion or practice for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, an applicant for that employment;
(b) in any other case, a disabled person who is -
(i) an applicant for the employment concerned, or
(ii) an employee of the employer concerned.
(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, or could not reasonably be expected to know -
(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for that employment; or
(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).
3.2 Further clarification is provided in Section 18B as follows:-
“18B-(1) 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 should 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 step;
(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 steps;
(f) the nature of his activities and the size of his undertaking;
(g) where the step would be taken in relation to a private household, the extent to which taking it would -
(i) disrupt that household; or
(ii) disturb any person residing there.
“(2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments -
(a) making adjustments to premises;
(b) allocating some of the disabled person’s duties to another person;
(c) transferring him to fill an existing vacancy;
(d) altering his hours of working or training;
(e) assigning him to a different place of work or training;
(f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;
(g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person);
(h) acquiring or modifying equipment;
(i) modifying instructions or reference manuals;
(j) modifying procedures for testing or assessment;
(k) providing a reader or interpreter;
(l) providing supervision or other support …”
Victimisation
3.3 The relevant legislation is contained in Section 55 of the Disability Discrimination Act 1995 (as amended) and reads as follows:-
“55 (1) For the purposes of Part II or Part 3, a person (“A”) discriminates against another person (“B”) if -
(a) he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B’s; and
(b) he
does so for a reason mentioned in
subsection (2).
(2) The reasons are that -
(a) B has -
(i) brought proceedings against A or any other person under this Act; or
(ii) given evidence or information in connection with any such proceedings brought by any person; or
(iii) otherwise done anything under this Act in relation to A or any other person; or
(iv) alleged that A or any other person has (whether or not the allegation so states) contravened this Act;
or
(b) A believes or suspects that B has done or intends to do any of those things…”
Reasons and Decision
4.1 It is our finding that the claimant was not discriminated against by the respondent in relation to a failure by the respondent to make reasonable adjustments for the claimant, nor was she victimised by the respondent. This decision is based largely on our findings of fact so we do not consider it necessary to set out a detailed analysis of the case law.
Failure to make reasonable adjustments
4.2 It was conceded by the respondent that the claimant met the statutory definition of a disabled person under Section 1(1) and Schedule 1 of the Disability Discrimination Act 1995 (as amended), and we have not considered that point further. It is clear to us that the claimant suffered from muscular skeletal difficulties and certainly at the time of the events which grounded this complaint, in 2010/2011, she was suffering from back problems and also difficulty with her shoulder which to a certain extent was resolved through surgery. However, she was left with continued immobility problems and could not lift, push or pull anything heavy with her right arm. She also had ongoing difficulties with her back. The respondent clearly undertook a detailed Risk Assessment of the claimant’s situation in November 2010, in the presence not only of the claimant but also of the Trust Health and Safety Officer and the claimant’s trade union representative.
4.3 This resulted in a number of steps being agreed, including that the claimant would take regular breaks from typing and be provided with a software program to prompt her as to when to take a break and her computer screen and chair were adjusted. Steps were taken to provide earphones which were easier for her to put on and she had a phased return to work after her surgery. The proposed wrist extension for her phone was not provided at that time, but the claimant did not appear to have raised this at any point either with her Line Manager or the Health and Safety Officer until some six months later. The problem in the meantime had been resolved by the claimant moving her telephone. The only matter which had been agreed in November 2010 and not put in place was the software package, which turned out to be unobtainable. The claimant had however dealt with this herself by taking regular breaks as agreed with management.
4.4 At the hearing the claimant also mentioned that she understood her desk was too small and another desk was to be provided. This was not however mentioned in the list of agreed items, included in Claire Armour’s e-mail to Diane Spence after the workplace assessment had taken place. We find that the respondent had undertaken all the agreed steps to make reasonable adjustments at the workplace for the claimant and when the size of the claimant’s desk was noted, Claire Armour promptly arranged a larger desk. These included the assignment of another Band 2 Clerical Officer to carry out the filing duties which the claimant could not carry out due to her shoulder difficulties. The claimant made the point at the hearing that the Band 2 Officer was being moved and in her words, “My reasonable adjustment was being taken away from me”. In e-mails from Diane Spence to the claimant, it was pointed out that this had been a temporary measure, but that the respondent could not justify having a full-time employee there to support the claimant on an ongoing basis to do part of her duties. The respondent proposed to resolve this by agreement between the claimant and her other work colleagues as to how duties would be distributed. The aim was that the claimant’s colleagues would take on her filing duties and she would take on some other typing duties which she could manage to ensure that the work was fairly distributed. This seems to us an entirely proper way to deal with matters and there did not appear to be any ground for objection.
4.4 The claimant apparently takes the view that the appropriate way for the respondent to have dealt with this matter would have been to move her to another Band 2 post of her choosing, which we do not accept was either necessary or appropriate.
4.5 The claimant had initially been identified as due for redeployment because of her being a displaced officer, but not due to any health or disability or related matters. A number of occupational health reports which were opened to us, and dating as far back as September 2010, all indicate that the claimant was fit for clerical work with some restrictions specifically in relation to filing duties. The steps which the respondent had taken ensured that the claimant did not have to carry out filing duties, but she did not accept the outcome of these reports nor did she accept that the respondent was not under any obligation to move her to another post. Dr McGread’s report of 19 April 2011 clarified for Mrs Spence that it was not necessary to consider redeployment of the claimant due to any health or disability-related reasons, and this information was given to the claimant. Mrs Spence pointed out to the claimant at a meeting in May and by her e-mail of 23 May, that she was not being considered for redeployment. The claimant persisted in pursuing the idea that she should be moved to a post in the Physiotherapy Department at the Robinson Hospital. The other two posts which she had identified at the Roddens Residential Home and Armour Daycare Centre were not available. The full-time post at the Physiotherapy Department had no clearance to be filled permanently and therefore was not available and secondly, there were no grounds to move the claimant to it. One of the claimant’s main issues with working at MHRC appears to have been that she simply did not like the environment. In particular she made reference to the letters which she had to type as being “traumatising” because of references by some patients to having suicidal thoughts.
Victimisation
4.6 During the hearing the claimant withdrew her allegation that Mrs Spence had been discriminating against her and victimising her and agreed that in fact Mrs Spence had been actively seeking alternative posts for her throughout 2010/2011. She also withdrew most of her other allegations regarding victimisation.
4.7 In relation to the respondent’s decision to investigate the incident in September 2011 and MHRC and to include the claimant within that investigation, the claimant conceded that the respondent’s decision in relation to this had nothing to do with her disability and that it had nothing to do with victimisation. She alleged that bringing the investigation was “malicious” but conceded that it was not on grounds of discrimination or victimisation. She further admitted that she agreed that Donna Tohill’s behaviour towards her at the workplace was not an act of victimisation otherwise.
4.8 The claimant had made allegations regarding Claire Armour suggesting that Claire Armour’s failure to put in her return to work forms meant that her pay was reduced to half pay for the first month after she returned to work in November 2010. She also suggested that Claire Armour’s failure to put through travel claims for her was also an act of victimisation, but she produced no further evidence of this. Neither of these items have been referred to in the claimant’s statement of evidence to the tribunal. Accordingly, it is our view that these matters were actually not a substantive part of the claimant’s case, and there was no other evidence of these matters produced, so we find this part of the claim is not proven.
4.9 There was no evidence to show that the respondent’s treatment of the claimant was in any way motivated by her having brought a claim of disability discrimination against the respondent in 2010. There is no evidence that the respondent failed in its duty to make reasonable adjustments for the claimant, indeed it appears that her managers went to considerable lengths to try and facilitate her condition. This included, when the claimant was fit only to do 50% of the duties of her post, employing another person on a full-time basis to carry out that part of the claimant’s duties which she could not do. When the respondent then sought to reorganise the work in such a way that the claimant could share duties with colleagues to release and to carry out the filing work she could not do, the claimant appears to have been discontent about this. The long and the short of it is that the claimant was not content to work in MHRC. She did not however apply for a voluntary transfer to another location, which she could have done. She maintained that she was not aware that she could do this, which seems to us disingenuous in light of the fact that she had been working for the respondent for over 22 years. We find that the claimant’s claims are not well-founded and accordingly both claims will be dismissed.
Chairman:
Date and place of hearing: 19 and 20 August 2013, Belfast.
Date decision recorded in register and issued to parties: