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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCracken v Northern Health & Social Care ... Northern Health & Social Care ... [2013] NIIT 00806_12IT (15 February 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/806_12IT.html
Cite as: [2013] NIIT 00806_12IT, [2013] NIIT 806_12IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 806/12
1726/12
CLAIMANT: Angela McCracken
RESPONDENT: Northern Health & Social Care Trust
DECISION
The unanimous decision of the tribunal is that:-
(1) The respondent did not directly discriminate against the claimant on the ground of her disability.
(2) The respondent did fail in its duty to put a reasonable adjustment in place by delaying that process and the reasonable adjustment could and should have been in place by no later than 26 January 2012.
(3) The adjustment eventually put in place by the respondent on 10 December 2012 was a reasonable adjustment.
(4) The claimant has established no financial loss in relation to the period between 2 August 2012 and 10 December 2012.
(5) The financial loss incurred between 26 January 2012 and 2 August 2012, at an agreed rate of £300.00 net per week was – £300.00 x 28 = £8,400.00, together with interest calculated in accordance with this decision of £347.98, totalling £8,747.98.
(6) The injury to feelings incurred by the claimant as a result of the unwarranted delay in putting in place a reasonable adjustment was £6,000.00, together with interest calculated in accordance with this decision of £419.50, totalling £6,419.50.
(7) The respondent failed in its duty to comply with the LRA Code in relation to the grievance procedure and the compensatory award is increased by 10%, ie £1,516.74.
(8) The total amount payable by the respondent to the claimant is £16,684.22.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Mr E Hesketh
Ms A Gribben
Appearances:
The claimant was represented by Mr N Phillips, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.
The respondent was represented by Mr M Potter, Barrister-at-Law, instructed by Business Services Organisation.
Background summary
1. The claimant was a nursing auxiliary who had worked on the bank of nursing auxiliaries in Holywell Hospital. Following maternity leave in 2009, she developed a degenerative eye condition, retinitis pigmentosa.
2. There was no dispute that this condition, which progressively restricts peripheral vision and which causes difficulties in adjusting to changes in light, was a disability at all relevant times for the purposes of the Disability Discrimination Act 1995.
3. In August 2011, the claimant wanted to reactivate her bank arrangement with the respondent by notifying her availability for work. At that stage she also properly notified the respondent of her medical condition and that she had recently, and technically, been registered blind. A period of assessment and consideration then took place.
4. The process of considering a reasonable adjustment did not reach an initial conclusion until 2 August 2012. The claimant returned to work in September 2012 over a year after the matter was first considered. Her work was restricted to certain wards and certain hours. Those hours were adjusted slightly in relation to three wards with effect from 10 December 2012 under an appeal against a Stage 1 grievance decision. It was at that point that the claimant’s request for reasonable adjustments was finally resolved.
The hearing
5. The hearing took place over four days. Evidence was heard on Monday 28 January 2013, Tuesday 29 January 2013, Thursday 31 January 2013 and submissions were held on 1 February 2013.
The tribunal heard evidence from the claimant and for the respondent, Ms Denise Martin, Ms Karen McWatters, Mr Trevor Fleming and Ms Noelle Barton.
The witnesses exchanged witness statements in advance in accordance with case-management directions. These statements formed their evidence-in-chief. The witnesses moved immediately to cross-examination and re-examination.
The panel held a panel meeting immediately after the submissions on 1 February 2013 to reach a decision. This document represents that decision.
The issues
6. The issues for the tribunal to consider were:-
“(i) Did the respondent directly discriminate against the claimant on the ground of her disability in relation to the process undertaken to consider her request for a reasonable adjustment or in relation to the decision in relation to reasonable adjustments?
(ii) Did the respondent fail in its duty to put in place a reasonable adjustment in relation to the claimant’s working pattern on 2 August and 10 December 2012?
(iii) Was there a duty to act promptly in relation to the consideration of a reasonable adjustments and, if so, did the respondent fail in its duty? If so, from what point did it fail in its duty?
(iv) If the answer to any of the above is yes, what remedy in terms of financial loss and injury to feelings is appropriate?”
Relevant law
Direct disability discrimination
7. Section 3A of the Act provides:-
“(5) A person directly discriminates against a disabled person if, on the grounds of the person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability, where relevant circumstances, including his abilities, are the same as, or not materially different from, the disabled person.”
Reasonable adjustments duty
8. Section 4A of the Act provides:-
“(1) Where –
(a) any provision, criterion or practice applied by or on behalf of an employer …
places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.
9. Section 17A(1) of the Act provides that where a claimant proves facts from which the tribunal could, apart from that sub-section, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act. The EAT in Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 suggested that in a reasonable adjustments case, the burden of proof will shift to the respondent employer if an adjustment could reasonably have been made and it would then be up to the employer to show why it had not been made.
10. The Employment Appeal Tribunal in the case of Project Management Institute v Latif [2007] IRLR 579, when dealing with a reasonable adjustment case concluded that:-
“The paragraph in the DRC’s Code is correct. The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably have been inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing substantial disadvantage envisages the duty but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made. That is not to say that in every case the claimant would have to provide the detailed adjustment that would need to be made before the burden would shift. It would, however, be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could be reasonably be achieved or not.”
11. The Code of Practice issued by the Equality Commission provides at Paragraph 5.8 that the duty to make reasonable adjustment applies to contractual arrangements and working conditions. Paragraph 5.11 states that substantial disadvantages are those which are not minor or trivial.
12. Paragraph 5.18 of the Disability Code of Practice, refers to the wording of the Act and in relation to the possibility of transferring a disabled person to fill an existing vacancy provides:-
“An employer should consider whether a suitable alternative post is available for an employee who becomes disabled (or whose disability worsens), and where no reasonable adjustment would enable the employee to continue doing the current job. Such a post might involve retraining or other reasonable adjustments such as equipment for the new post.”
Paragraph 5.20 of the Code states:-
“As mentioned above, it might be reasonable for employers to have to take other steps, which are not given as examples in the Act. These steps could include:-
- conducting a proper assessment of what reasonable adjustments may be required;
- permitting flexible working;
- allowing a disabled employee to take a period of disability leave.”
Burden of proof
13. The statutory changes, introduced to give effect to EC Council Directive 97/80 and Council Directive 2000/78/AC, were analysed by the GB Court of Appeal in the case of Igen v Wong [2005] EWCA 142 and guidance for tribunals was set out in a series of 13 numbered paragraphs in that decision. The Northern Ireland Court of Appeal in McDonagh and Others v Royal Hotel [2007] NICA 3, confirmed that that guidance can be applied to all forms of discrimination and stated:-
“For the purposes of the present case the first question that the judge should have articulated was, ‘have the plaintiffs proved on the balance of probabilities, facts from which I could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against them?’”
Those guidelines were revisited and affirmed by the GB Court of Appeal in the case of Madarassy v Nomura International Plc [2007] EWCA CIB 33 on 26 January 2007. At Paragraph 12 in that decision, the court stated:-
“I do not underestimate the significance of the burden of proof in discrimination cases. There is probably no other area of civil law in which the burden of proof plays a larger part than in discrimination cases. Arguments on the burden of proof surface in almost every case. The factual content of the cases does not simply involve testing the credibility of witnesses and contested issues of fact. Most cases turn on the accumulation of multiple findings of primary fact, on which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts. It is vital that, as far as possible, the law on the burden of proof applied by the fact-finding bodies is clear and certain. The guidance in Igen v Wong meets these criteria. It does not need to be amended to make it work better.”
The court went on to say at Paragraph 54 that:-
“I am unable to agree with Mr Allen’s contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing the facts of the difference in status and the difference in the treatment of her.”
At Paragraph 56, the court continued:-
“The court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which the tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”
At Paragraph 57, the court continued:-
“’Could conclude’ in Section 63a(2) must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it. This would include evidence adduced by the claimant in support of the allegation of sex discrimination such as evidence of the difference of status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint.”
Injury to feelings compensation and aggravated damages
14. In Vento v Chief Constable of West Yorkshire Police [2003] IRLR102, the Court of Appeal stated:-
“Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in money terms. Translating hurt feels into hard currency is bound to be an artificial exercise”.
The claimant, at least in initial argument, sought aggravated damages. Such damages may, in principle, be awarded where the respondent is guilty of conduct which was high-handed, malicious, insulting or oppressive – Scott v Commissioners for Inland Revenue [2004] IRLR 713 CA. The respondent’s failure to make the requisite reasonable adjustment promptly appears to be none of those things. Furthermore, the Northern Ireland Court of Appeal in McConnell v Police Authority [1997] IRLR 625 held, in this jurisdiction, that aggravated damages should not be an extra sum over and above the sum which the tribunal in fact considered appropriate compensation for the injury to the claimant’s feelings.
The correct figure for injury to feelings compensation is, insofar as it can be judged, the measure of actual loss. As the EAT said in HM Prison Service v Johnson [1997] IRLR 162:-
“Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the Tortfeasor.”
Relevant findings of fact
15. The claimant is, and at all relevant times was, engaged by the respondent as a nursing auxiliary on the bank contract for Holywell Hospital. The respondent is a Health & Social Services Trust responsible for, inter alia, the mental health hospital at Holywell.
16. The claimant had worked in Holywell in different capacities and when she went on maternity leave on or about 2 July 2009, she had completed in excess of five years working in Holywell.
17. A few months after giving birth, and whilst still on maternity leave, the claimant noticed the onset of a medical condition which was diagnosed as retinitis pigmentosa.
18. It is common case that this condition, insofar as the claimant is concerned, represented at all relevant times a disability for the purposes of the 1995 Act. Her central vision is not affected but she has no peripheral vision. Apart from that, she experiences temporary difficulties in adjusting to changes in lighting, such as when electric lights are switched on or are dimmed, or where she moves from a darkened indoor setting to outside, or vice versa.
It the claimant moves her head or her eyes to follow where she wants to look, she can make the best use of her central vision and can therefore minimise the effects of the loss of peripheral vision.
19. The claimant has completed the respondent’s ‘Managing Aggression or Potential Aggression Training’ (‘MAPA Training’) and the respondent acknowledges that she is capable of implementing that training by dealing with and defusing difficult behaviour and aggression.
20. The claimant had initially intended to resume work after her maternity leave in or about May 2010. However, because of personal circumstances, the claimant did not contact the respondent to notify it of her resumed availability for the purposes of the bank contract until the end of August 2012. No precise date has been given in evidence in relation to this contact but, on the balance of probabilities, the tribunal concludes that this occurred on Monday 22 August 2011.
21. On that date, 22 August 2011, the respondent referred the claimant to the respondent’s In-house Occupational Health Department which was locally based in Antrim. That written referral identified the precise nature of the claimant’s condition; ie retinitis pigmentosa, and attached a copy of the relevant job description as a nursing auxiliary in Holywell. The referral also stated specifically that the claimant had been registered as technically blind. At that stage the respondent had a great deal of information, both about the nature of her condition and the nature of her work.
22. The claimant was first interviewed by an Occupational Health Nurse who was unable to give a report because of the nature of her condition and who wanted the claimant to be seen by an Occupational Health Doctor. It is difficult to understand why this initial, albeit brief delay occurred when the written referral made the nature of the medical condition quite clear and also made it quite clear that the matter to be determined was the question of reasonable adjustments to enable the claimant to resume work.
23. The claimant was then examined relatively promptly by Dr McGread of the respondent’s Occupational Health Department. He is a Consultant in Occupational Health medicine and is obviously a specialist in this field. He provided a report to the respondent on 14 September 2011. He stated that the claimant’s general field of vision was between 10 and 20% of normal but stated that the claimant could focus centrally. He stated:-
“So in essence here impairment relates to primarily the field of vision, but also central vision when affected by lighting conditions and limited contrast.”
He stated that the claimant was capable of appropriate work. He wrote for further information from the Consultant Ophthalmologist but crucially stated:-
“In the first instance you should convene a meeting between management, HR, myself and Mrs McCracken who in the meantime has been tasked to contact the local disabled employment adviser.”
There was no dispute that the reference to a ‘local disabled employment adviser’ meant the DEL adviser on disability and employment. In any event, the advice given by Dr McGread in this respect was not acted upon by the respondent although the papers disclose that the Nursing Services Manager, Mrs Martin, stated in an e-mail of 9 October 2011, some three weeks after receipt of the report from Dr McGread, that she would ask her secretary to set up the meeting ‘requested by Occupational Health’.
Dr McGread continued in his report to say:-
“Thereafter we will await the report from the Ophthalmologist before progressing this matter.”
The tribunal can only read ‘thereafter’ as meaning after the meeting which was expressed to be ‘in the first instance’ and which was not arranged and which did not take place.
24. On 11 October 2011, Dr McGread, still without having his ‘in the first instance’ meeting arranged, wrote to the respondent to update his earlier report after receipt of the Consultant Ophthalmologist report. He stated:-
“Since that time I have received a report from her Consultant Ophthalmologist. This report really confirmed my impression of Mrs McCracken’s visual condition. It confirmed her central vision is fairly normal but she has restricted peripheral field vision and the condition is slowly progressive. Her colour vision is normal. She should only be placed in work where it is brightly lit. As such with this information at hand and with my letter of 14th of September 2011, Mrs McCracken is fit for appropriate work within those parameters.”
He went on to state:-
“I believe the input of RNIB would be very useful in this case as well as the employment adviser at the Job Centre and I would thoroughly endorse Mrs McCracken’s contact with those individuals.”
It is therefore clear that the respondent’s own Occupational Health Consultant advised on 11 October 2011 that, subject to the advice of the RNIB and the DEL disabled employment adviser, and the identification of parameters, the claimant was fit to work within those parameters. The tribunal heard no explanation of why the report suggested that contact with the RNIB and with DEL was or should have been the responsibility of the claimant rather than the responsibility of the respondent where the duty to make reasonable adjustments lay on that respondent. However, the Occupational Health Consultant ended his report by stating:-
“I would advise that both the employment adviser and the liaison officer with RNIB meet with management and Mrs McCracken in the first instance to discuss how her job could be adjusted to accommodate her visual impairment. After that please contact me and I would be happy to meet those concerned to discuss the way forward.”
It is clear that the respondent’s consultant was setting out clear steps to be taken and equally clear that he had signalled his willingness to take part in detailed discussions.
25. On 9 November 2011, a meeting was arranged between the claimant, Mrs Martin, the Nursing Services Manager, and Mrs McWatters of Human Resources for 17 November 2011. This was one month and one week after the respondent had received the report from Dr McGread. The meeting did not include either Dr McGread, despite his suggestions, the RNIB or the disablement employment adviser from DEL. It is noteworthy that Mrs Martin made it clear to the tribunal that she had felt competent only to consider reasonable adjustments in those parts of Holywell where she had previously had responsibility and that she did not feel confident to consider or to recommend reasonable adjustments in other wards within Holywell, including the wards where the claimant was eventually employed. This was therefore an arranged meeting between, at best, a partial decision-maker, the claimant and a representative from HR. It is difficult, particularly given the consultant’s detailed suggestions, to understand what this meeting was meant to achieve.
26. A detailed note of the meeting on 17 November 2011 was retained by the respondent. It was clear that nothing of any real significance occurred other than a statement from Mrs Martin that the claimant could not work in the Psychiatry Intensive Care Units (‘PICU’) and that full and proper consideration would be given to reasonable adjustments.
Three months had now elapsed from the initial referral of the claimant’s request for reasonable adjustments to the Occupational Health Unit employed by the respondent.
27. On 25 November 2011, over a week later, a meeting took place between Mrs Martin, Mrs McWatters, the claimant and DEL disablement employment adviser, Mrs McCloskey. The respondent indicated at the meeting that it was still considering reasonable adjustments and the DEL adviser agreed to refer the claimant to the RNIB for an assessment. It is apparent that the RNIB had not been engaged to that point and equally apparent that the respondent had not yet acted on the advice it had received some six weeks earlier in that respect from its own Occupational Health Consultant.
28. That RNIB assessment was completed and a report was provided by RNIB on 21 December 2011. It added very little of significance to the ongoing consideration of reasonable adjustments. It was apparently addressed to the claimant and contained the following:-
“You can carry out the duties of the auxiliary nursing post to a high standard with your level of sight. You have worked in this position for five years prior to your career break in the same location with the client group and therefore you are very familiar with the job. You have also carried out the same role with sight loss and your sight has deteriorated slightly since you were working in this role. You have developed coping strategies that you use in this job to compensate for your sight loss. There may be extenuating circumstances that arise that affect your ability to control particular circumstances and you are aware of this. It is important that your co-workers are aware of your sight loss and if circumstances arise that you cannot handle adequately, they are able to support you.”
Four months had now elapsed from the initial referral of the claimant to the respondent’s In-house Occupational Health Department. Throughout this period, the claimant remained without work or income.
29. A further meeting took place on 26 January 2012 between the DEL disablement employment adviser, Mrs McCloskey, and Mrs Martin to discuss the RNIB report. No one else was present. Notably, Dr McGread, the claimant and indeed the RNIB Adviser, were not asked to attend. At that meeting, Mrs Martin advised Mrs McCloskey that she could no longer offer the claimant any shifts on this nursing auxiliary bank.
30. Mrs Martin gave evidence to the tribunal that she had meant to refer only to the wards in Holywell of which she had direct experience and that consideration of reasonable adjustments would then be passed to another manager, Mr Trevor Fleming, as part of a continuous process of consideration to see if he could identify reasonable adjustments, possibly elsewhere in Holywell.
It is clear that no such statement was made to Mrs McCloskey, either orally or in writing and it is equally clear that Mrs McCloskey would have been given the clear impression on 26 January 2012 that the claimant’s request for a reasonable adjustment to enable her to continue working in Holywell had been refused. This process was at an end. There was no mention, either orally or in writing, of only an interim stage in consideration having been reached; there was no mention of any continuing process and no mention of Mr Fleming further considering the matter.
31. A further meeting was arranged for 2 February 2012 between Mrs Martin, Mrs McWatters and the claimant. Much of the evidence before the tribunal centred on the conduct and the purpose of this meeting. However it is noteworthy that the meeting was described in the respondent’s file note which recorded the meeting on 26 January 2012 as a forthcoming meeting to advise the claimant of ‘the outcome’. The file note did not say and it did not in any way suggest that the meeting to be held on 2 February 2012 was simply to advise the claimant of an interim decision within the limited competence of Mrs Martin or to advise the claimant simply of a provisional decision which was subject to a further consideration by Mr Fleming.
More than five months had elapsed since the initial referral of the claimant to the respondent’s Occupational Health Department.
32. The claimant, Mrs Martin and Mrs McWatters attended the meeting on 2 February 2012. Again it is noteworthy that Dr McGread, despite his earlier offer and his obvious interest in this matter, and despite his obvious specialism, was not asked to attend to give his input.
A great deal of evidence before the tribunal concerned whether the claimant had been angry and aggressive during this meeting or whether she had simply been properly assertive. In essence, the respondent’s witnesses allege that the claimant had consistently interrupted Mrs Martin and Mrs McWatters and had consistently repeated questions. Mrs Martin and Mrs McWatters stated that they had (both) been overborne by the claimant’s attitude and that Mrs McWatters had told her that she had been terminated when in fact she had not been terminated. The two respondent’s witnesses maintained that they had intended to tell the claimant that only an interim stage had been reached at that point in time and that the matter would then go to Mr Fleming for further consideration. They stressed that it was all the claimant’s fault that they had not given this information to the claimant at or immediately after the meeting and that it was all the claimant’s fault that the claimant had then pursued the matter by way of a grievance. According to the respondent, any further delay was exclusively down to the claimant.
33. The respondent’s argument is, of course, nonsense. Two mature and experienced managers cannot convincingly assert that they were forced to describe the claimant as terminated when she had not been terminated. Two mature and experienced managers cannot convincingly argue that they had been in some way prevented from indicating, as they now claim, that they had at this point in time merely reached an interim stage. Given this was a meeting described, in their own document, as a meeting to advise her of the ‘outcome’, their argument is simply implausible. It does not sit well with the clear discussion that had occurred with Mrs McCloskey on 26 January 2012, with the file note of that meeting, with a follow-up letter from the respondent to the claimant on 2 February 2012 which did not either complain about her alleged behaviour or mention the interim, as opposed to final, nature of the decision, with the note of the meeting on 2 February 2012 which again mentions neither the claimant’s alleged behaviour or the alleged interim nature of the decision, with the subsequent description in the respondent’s correspondence of her as an ‘ex-employee’ or with a letter dated 11 April 2012, sent two months later, which said on behalf of the respondent:-
“Mrs McCracken was not considered suitable to work any [tribunal’s emphasis] bank shifts, she was removed from the bank register … .”
34. The tribunal concludes, and it is accepted by the respondent, that the claimant was told at that meeting on 2 February 2012 that she had been terminated. The tribunal concludes that no suggestion had ever been made to the claimant that Mrs Martin’s decision not to offer any shifts on the bank [tribunal’s emphasis] was in any way partial, limited or less than final. If the proposition now put forward on behalf of the respondent had any merit, the claimant would have been advised, either immediately or shortly after the meeting on 2 February 2012, that there had not been an ‘outcome’, that the matter was still under continued consideration and that she had not been terminated. None of this occurred.
Even if it had occurred the tribunal would have had to consider whether the respondent’s approach in this respect had been unnecessarily dilatory.
35. The claimant lodged a grievance on 6 February 2012. Again the argument was pressed strongly, on behalf of the respondent, that the claimant had been unreasonable to do so. The argument was made that everything could have been sorted out much earlier in terms of a reasonable adjustment if the claimant had not been so unreasonable. It was argued that all delay thereafter was her fault. The tribunal completely rejects this argument. This was a worker of some experience facing a significant medical condition with some courage and who wanted to continue to work. The respondent had been aware of all this from 22 August 2011. The claimant had been advised that Mrs Martin, after some considerable delay, had concluded that she was not able to continue to work and that no shifts would be offered to her. In these circumstances it is not surprising that she became assertive or even that she might have become cross or, depending on one’s perception, angry. It is simply not credible that she was able, through force of personality, to persuade two experienced managers to say something which they did not believe to be true and to persuade those managers to misrepresent what they claimed to be the actual position. It is even more incredible that the claimant managed to persuade them, not only to wrongly describe the claimant as ‘terminated’ but also persuaded them to compound such a misrepresentation by not immediately or relatively promptly correcting that misrepresentation. It is, in the view of the tribunal, entirely wrong to attach any blame to the claimant for her decision, having been told that she was terminated and that no more work was available, to lodge a grievance on 6 February 2012.
36. A Stage 1 grievance meeting was held on 11 April 2012, some two months after the lodgement of the grievance.
Almost eight months had elapsed since the initial referral of the claimant to the respondent’s in-house Occupational Health Department.
37. The respondent obtained a further RNIB report on 24 May 2012. Again this report did not add anything of major significance to the consideration, if there was to be a consideration, of reasonable adjustments.
Nine months had now elapsed since the initial referral of the claimant to the respondent’s in-house Occupational Health Department.
38. The claimant was again seen by the Occupational Health Consultant, Dr McGread, on 22 June 2012 when he said that her medical condition was ‘unaltered’. He said her fitness for work was ‘unaltered’. He referred the respondent, with some apparent exasperation, to his previous advice. He stated:-
“Can I once again refer you to my previous recommendations of 11 October 2011 as well as my letter of September 2011.”
He added nothing of any significance other than stating that the claimant was ‘best working within a work environment with which she is very familiar’. Hardly a startling proposition in all the circumstances.
39. Some 10 months had now elapsed since the referral of the claimant to the respondent’s in-house Occupational Health Department.
40. Following the Stage 1 grievance, the respondent issued a decision on 31 July 2012 which stated that the claimant could do day duty on four specific wards between 7.30 am and 5.50 pm.
Some 11 months had now elapsed since the initial referral of the claimant to the respondent’s in-house Occupational Health Department.
41. On receipt of that decision, claimant appealed against the Stage 1 grievance on 2 August 2012. At this stage, it is worthy of comment that the claimant appears to have acted promptly at all stages in the process and has never refused to co-operate with any medical or other investigation or with reports. The promptness with which the claimant pursued the matter is perhaps to be contrasted with the rather different approach adopted by the respondent.
42. The claimant resumed employment on the Stage 1 terms in September 2012. No specific date has been given to us for the date on which employment re-commenced but the tribunal concludes, on the balance of probabilities, that this occurred on 3 September 2012.
43. A year had elapsed since the initial referral of the claimant to the respondent’s in-house Occupational Health Department.
44. The Stage 2 grievance hearing was on 16 October 2012 and the decision eventually issued on 10 December 2012 some four months after the lodgement of the grievance. That decision allowed the claimant to work in three out of the four specific wards for a slightly lengthened time period, ie to 8.15 pm.
Some 16 months had elapsed since the initial referral of the claimant to the respondent’s in-house Occupational Health Department.
The decision
Did the respondent directly discriminate against the claimant on the ground of her disability?
45. The tribunal is satisfied, after considering all the documentation, and all the evidence and submissions from both parties, that there is no evidence upon which a reasonable tribunal could properly infer unlawful direct discrimination on the ground of disability in this case. The respondent, leaving aside for the moment the time within which it took to do so, genuinely tried to facilitate the claimant’s return to work and ultimately did arrive at an adjustment which allowed the claimant to resume work in her chosen field in four specified wards within specified times. There was no evidence that the respondent’s approach was, at any stage, less than genuine.
46. The tribunal therefore concludes there are no grounds on which the burden of proof could properly shift to the respondent. Even if it had, the tribunal would have concluded that the respondent had discharged any consequent burden of proof. The claim of unlawful direct discrimination on the ground of disability is therefore dismissed.
Did the respondent fail in its duty to put in place a reasonable adjustment in relation to the claimant’s working patterns in the decisions it made in August and December 2012?
47. Decisions in reasonable adjustments cases are obviously fact-sensitive. The tribunal must look at each case on its merits and must consider the question objectively and must determine what a reasonable employer could and should have done.
Again, leaving aside the length of time within which it took to do so, the tribunal concludes that a reasonable adjustment was put in place in respect of the claimant on 10 December 2012. This was a novel and important reasonable adjustments case. This was not the simple or straightforward type of case where an office worker with limited vision seeks a reasonable adjustment to administrative procedures or to administrative working practices within an office to enable him or her to remain in employment. The respondent faced a much more complex issue. The respondent had to consider, not just the interests of the claimant and her obvious interests in retaining her employment; the respondent also had to consider the safety of the claimant, the safety of her colleagues, the safety of patients who were often disturbed, the safety of visitors, its duties under mental health legislation and, finally, its duties under that legislation with particular reference to sectioned patients and patients held under specific powers of detention. The respondent had a difficult balancing exercise to undertake. The simple interests of the claimant and the respondent’s duties under the 1995 Act were in no way determinative of what was essentially a novel and unprecedented situation. The respondent, as an employer and as a provider of statutory mental services, had to move carefully and had to balance all competing interests to achieve a fair result and a reasonable adjustment.
48. There are two factors to be borne in mind here. First of all, an employer is not required to make a ‘perfect’ adjustment. It is required to make a ‘reasonable’ adjustment. The reasonableness or otherwise of an adjustment has to be determined objectively. Secondly, the tribunal cannot properly demand a perfect or elysian standard be achieved by any employer in this respect, particularly where that employer has competing statutory duties and where that employer is facing a complex and novel situation. Due allowance has to be made for the realities of a situation.
49. In a situation such as a mental health hospital, there is no such thing as a perfectly safe and a perfectly risk-free employment. It is entirely reasonable for an employer in these circumstances to decide to reduce risk to the maximum extent possible. In the present circumstances, the respondent recognised that, while there will always be a degree of risk, that risk could and should be minimised in the case of the claimant by creating circumstances where the claimant was more likely than not to deal with long-standing patients with whom she was familiar, or more familiar than normal, and where the claimant was less likely to come across unpredictable or recently admitted patients. On that basis the respondent selected the four specific wards within which the claimant was permitted to work.
50. It is equally clear that the lighting system within the mental health hospital involved a dimming of lights at or about 8.15 pm and that this reduction in general lighting would render the environment unsuitable for the claimant after that time of the evening. That was a reasonable decision. It could well be argued that that was the decision which should have been reached in August 2012 rather than having it delayed further until December 2012. However, the claimant re-started work in September 2012 and there is no evidence before the tribunal, and in fact it is probable that no evidence exists, to establish that the claimant has suffered any financial loss in respect of the period between September and December 2012 in respect of the final minor adjustment of shift times.
51. The tribunal is reluctant to contradict careful, and perhaps over-careful and too-long considered, deliberations of mental health professionals in this respect. While the tribunal has a duty to determine these matters objectively, it equally has a duty not to carelessly set aside professional mental health opinions which have not been rebutted in evidence.
52. The tribunal therefore concludes that the ultimate decision on 10 December 2012 to permit the claimant to work within four specified wards and within certain timeframes and which allowed work in three of those wards to extend to 8.15 pm was a reasonable adjustment in all the circumstances.
Was there a duty to act promptly in relation to reasonable adjustments and if so did the respondent fail in its duty and if so from when?
53. There was no real argument that a duty to put in place reasonable adjustments in respect of an employee must, of necessity, include a duty to act reasonably promptly in such circumstances. Unnecessary delay would render any advantage obtained by the legislation nugatory. The tribunal therefore concludes that from 22 August 2011, the respondent was under a duty to properly, ie promptly, consider the claimant’s request for a reasonable adjustment to enable her to resume work at Holywell.
54. The question of when that duty should have been fulfilled by the respondent is one which is not capable of a necessarily precise or scientific answer. As indicated above, these issues are fact-sensitive. There are a range of circumstances ranging at the one end from an unskilled employee in a straightforward job seeking a straightforward adjustment to processes and at the other end of the spectrum to an individual such as the claimant in a skilled job in a difficult environment raising issues of reasonable adjustments which were not immediately capable of precise definition and which themselves raised difficult issues and a difficult balancing exercise for the respondent.
55. As indicated above, the tribunal should be wary of imposing an unrealistic or elysian standard upon employers. That said, there is no excuse for unnecessary or unjustified delay on the part of an employer. An employer with significant HR and legal resources and an employer with its own in-house Occupational Health Consultant on site and particularly an Occupational Health Consultant who indicates an obvious interest in the matter, has a particular burden in this respect.
56. While some simpler reasonable adjustment situations are capable of resolution within a matter of weeks rather than months, this does not appear to the tribunal to be one of those situations. The respondent had competing responsibilities to consider and had a novel situation before it which required careful consideration. That said, it had considerable resources at its beck and call with which to reach a reasoned decision within a reasonable timeframe. In the unanimous opinion of the tribunal it did not do so.
57. Significant information was already contained within the Occupational Health referral on 22 August 2011. Even more detailed information emerged from the opinion of Dr McGread, the Consultant Occupational Health Specialist on 14 September 2011 and clear advice was contained in that report which was not acted upon. Dr McGread, in his further report on 11 October 2011, raised the matter of RNIB and DEL involvement. It was obvious that both RNIB and DEL, when contacted, would act promptly.
58. It is proper that a reasonable margin of error should be allowed to an employer in these circumstances. However, that said, the tribunal cannot see how a reasonable adjustment was not put in place at the very latest by 26 January 2012. At that date, all relevant information was readily to hand. All medical reports of any significance had been obtained. The respondent had committed a cardinal error in that the initial decision-maker to whom it entrusted the task of deciding on reasonable adjustments was, through no fault of her own, an individual with limited knowledge of Holywell. That individual, Mrs Martin, made it absolutely plain in her evidence that she did not feel confident to advise on reasonable adjustments in any other part of Holywell, including the part of Holywell in which the claimant was eventually employed. That error was an error which could and should have been avoided by the respondent. The initial decision-maker should have either been a person directly familiar with all potential reasonable adjustments, or more likely, should have been an individual tasked to investigate contemporaneously rather than sequentially the scope for reasonable adjustments .
59. It is absolutely crucial that any employer in these circumstances should move quickly. To enable that to be done and to enable that to be done properly, the initial decision-maker should have been an individual who is either capable of reaching his or her own decision on all relevant potential reasonable adjustments or who was tasked with gathering together, again promptly, all necessary views from other managers before reaching their initial decision. It is simply not acceptable for any employer, particularly an employer with substantial resources, to take several months to reach what it regards as no more than part of the answer when it could and should have reached a complete decision no later, again providing a generous margin of error, than 26 January 2012.
60. The tribunal therefore concludes that there was a duty to act promptly and that that duty was not fulfilled from 26 January 2012 to 2 August 2012 when the initial adjustment was made. In fact it was not ultimately fulfilled until 10 December 2012 when the Stage 2 grievance appeal revised the time-limits applicable to the claimant. However, for the purposes of compensation, there was no evidence of any loss between 2 August and 10 December 2012 and compensation relates to the former period.
What remedy in terms of financial loss and injury to feelings is appropriate?
61. The claimant suffered financial loss and an agreed net weekly of £300.00 per week from 26 January 2012 to 2 August 2012 amounting to £8,400.00 in total.
62. The claimant sought an award of aggravated damages. However as can be seen from the case law, including a decision of the Northern Ireland Court of Appeal, which is binding on this tribunal, there should be no separate award of that nature. All such matters are composite within the injury to feelings award.
63. The tribunal has considered carefully the witnesses’ demeanour when giving evidence and when being cross-examined. It is satisfied that the undue delay by the respondent caused the claimant some considerable distress and humiliation at a difficult time in her life. The tribunal is also cognisant of the fact that Mrs Noelle Barton, who conducted the Stage 2 grievance, acknowledged in evidence that the claimant had suffered considerable distress. While again it is difficult to apply a scientific process to the calculation of injury to feelings compensation, the tribunal regards this very much as at the lower end of the middle band of Vento compensation and after much anxious deliberation considers that the figure of £6,000.00 is appropriate. This was an injury which extended over a relatively lengthy period of time. No specific medical evidence was brought forward but it is clear that the claimant suffered significant distress. That said, the injury to feelings compensation must bear some relation to awards for physical injuries and sympathy for the claimant must not cloud the tribunal’s judgment. The amount of any such award should be compensatory and not punitive.
64. It is equally apparent that the respondent failed to comply with the statutory grievance procedure in respect of time-limits. No real dispute was produced to the contrary. The tribunal finds an absence of malice on the part of the respondent. Rather the respondent lacked any degree of focus or urgency in this matter, and allowed its own considerations and its own lack of organisation to far outweigh the personal impact its actions were having on the claimant. The tribunal therefore considers that an uplift of 10% would be appropriate in these circumstances.
65. The unanimous view of the tribunal is that it is concerned that the approach taken by the respondent to the request for reasonable adjustments, while genuine, was disorganised, slow, and that it lacked any sense of priority or urgency. It is not sufficient to say, as the respondent say, that its employees are busy with full diaries. If that were sufficient to provide an exemption from statutory or other obligations, litigation, for example, could never proceed to conclusion.
The tribunal therefore recommends that the respondent should consider its procedures in relation to reasonable adjustments with particular reference to time-limitation and prioritisation and, if necessary, to avail of the assistance of the Equality Commission. This is a non-statutory recommendation; that specific power relates under current legislation only to measures which will assist the claimant.
Interest on injury to feelings award
66. Interest at the rate of 8% is potentially payable from the date of the act of discrimination, ie from the date on which the respondent discriminated against the claimant by failing to put in place a reasonable adjustment – see the Industrial Tribunals (Interest on Awards in Sex Discrimination and Disability Discrimination Cases) Regulations (Northern Ireland) 1996.
The tribunal has determined, insofar as it can, that this act of discrimination started on 26 January 2012 and that financial loss continued to 2 August 2012. Leaving the financial, ie the pecuniary loss to one side, it is clear that the injury to feelings started on 26 January 2012 and continued to 10 December 2012.
67. The tribunal has considered whether to depart from the standard position of warding interest on the injury to feelings award from some other date by the midpoint of serious injustice could occur. As the EAT concluded in Derby Specialist Fabrications Ltd v Burton [2001] IRLR 69:-
“The mere fact that an award for injury to feelings reflects injury occurring over a period of time cannot of itself justify a departure from the normal rule in Regulation 6(1)(a). It is clear that Parliament intended that, unlike interest on other awards where the midpoint was to be taken, interest on an award for injury to feelings should normally be from the date of the discriminatory act. That must be taken to allow for the fact that injury to feelings is not a one-off event but something that will often persist over a period of time.”
68. The tribunal has already in its decision factored in, in terms of time, a substantial margin of error by fixing 26 January 2012 as the appropriate date.
The tribunal therefore awards 8% interest of £6,000.00 from 26 January 2012 to 10 December 2012.
That approximates to:-
365 days – 46 days = 319 days
319 x 8% x £6,000.00 = £419.50
365
Interest of £419.50 is therefore payable.
Interest on pecuniary loss
69. Interest on pecuniary awards in generally awarded at 8% from the midpoint between the date the discrimination began and the date of calculation. In this case the tribunal considers it entirely appropriate to make this standard award, given the substantial and continuing loss to the claimant.
The relevant dates are from 26 January 2012 to 10 February 2013.
The midpoint is therefore 2 August 2012
The calculation of 8% interest is therefore from 2 August 2012 to 10 February 2013. The calculation is:-
189 x 8% x £8,400.00 = 347.98
365
Interest of £347.98 is therefore payable.
Compliance with grievance procedures
70. The Employment Act (Northern Ireland) 2011 took effect on 23 April 2011 and therefore represented the law at all relevant times in this case. It replaced the previous statutory grievance procedures with voluntary compliance with the new LRA Code of Practice. The purpose of all of this was to continue an effort to persuade employers and employees to resolve their differences through the grievance procedure and outside the tribunal system.
71. If there is an unreasonable failure on the part of an employer respondent to comply with the Code, the tribunal will have discretion to increase an award by up, and including, 50%.
72. The respondent unreasonably failed to resolve the outstanding issue through the grievance procedure, principally through a dilatory approach to time.
73. Taking into account all the circumstances of this case, and referring in particular to the lack of malice on the part of the respondent, but to the excessive and consistent delay where all relevant information was readily to hand, the tribunal fixes the appropriate uplift at 10%.
74. In total the compensation is:-
(i) Loss of earnings including interest of £ 8,747.98
(ii) Injury to feelings including interest of £ 6,419.50
(iii) Uplift of 10% £ 1,516.74
Total due £16,684.22
75. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Vice President:
Date and place of hearing: 28 – 29 January 2013;
31 January 2013; and
1 February 2013, Belfast
Date decision recorded in register and issued to parties: