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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCann v Department for Employment and ... Bruce Robinson Beverley Harrison HR Connect Department for Employment and ... HR Connect Malcolm McKibbin Alan Shannon Jason Foy Capita PLC Fujitsu UK and Ireland Department for Employment and ... [2013] NIIT 00889_11IT (26 February 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/889_11IT.html
Cite as: [2013] NIIT 00889_11IT, [2013] NIIT 889_11IT
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 7485/09
889/11
920/12
CLAIMANT: Colin McCann
RESPONDENTS: 1. Department for Employment and Learning
2. Bruce Robinson
3. Beverley Harrison
4. HR Connect
5. Malcolm McKibbin
6. Alan Shannon
7. Jason Foy
8. Capita PLC
9. Fujitsu UK and Ireland
DECISION
The unanimous decision of the tribunal is that the claimant’s claims relating to disability discrimination, protected disclosures, and unfair dismissal are dismissed against all respondents.
Constitution of Tribunal:
Chairman: Mr S A Crothers
Members: Mrs E Gilmartin
Mr R Hanna
Appearances:
The claimant did not appear and was not represented.
The respondents (except for 8 and 9) were represented by Mr P Ferrity, Barrister-at-Law, instructed by Departmental Solicitors Office.
THE CLAIM
1. The claimant made a number of claims alleging unlawful discrimination under the Disability Discrimination Act (as amended), (“the Act”). He also claimed unfair dismissal, that his dismissal was discriminatory, and that he had been dismissed for making a protected disclosure. The respondents denied all of his claims. Claim reference 7485/09 was presented to the tribunal on 25 November 2009. Claim reference 889/11 was presented to the tribunal on 8 April 2011 (and was appropriately accepted by the tribunal), and claim reference 920/12 was presented to the tribunal on 30 May 2012.
Postponement Application
2. Notwithstanding the absence of the claimant and his representative, the latter sent a considerable volume of email correspondence to the tribunal office requesting, inter alia, a postponement of the hearing. The claimant’s representative had previously indicated that the claimant would not be present at the hearing to give evidence. On 7 January 2013 and 8 January 2013, the tribunal made the following Rulings:-
(1)
“The tribunal, having considered
the claimant’s representative’s further detailed application for a postponement
in the context of the tribunal’s overriding objective, the relevant tribunal rules,
and the respondent’s objection to a postponement, unanimously refuses the
application. The hearing will therefore proceed in accordance with Rule 27 of
the Rules of Procedure”.
(2) The Ruling of 8 January 2013, also communicated by email to the claimant’s representative, was as follows:-
“The
tribunal communicated the above ruling by email to the claimant’s
representative at 11.48 am on 7 January 2013. This crossed with an
email from the claimant’s representative requesting an update received by the tribunal
office at 12.03 pm. Later, at 15.06 pm a Notice of Appeal against
Mr Justice McCloskey’s judgement was received by the tribunal office. This
Notice had been copied to the respondent’s representative. Further
correspondence was subsequently received which the tribunal took into account
in so far as relevant.
Having carefully considered the matter further, including the manner in which
the claimant had conducted his case through his representative, and having also
taken into account the respondent’s submissions, both written and oral (which
included references to Mr Justice McCloskey’s judgement), the tribunal was
satisfied, in accordance with its overriding objective, that the hearing should
proceed in accordance with yesterday’s ruling, which, it stresses, preceded
receipt of the Notice of Appeal. Finally, and except for the direction given
in relation to further documentation, the tribunal will not consider further
correspondence from the claimant or his representative once the hearing of the
evidence has commenced”.
PROCEDURE
3. The tribunal therefore proceeded to dispose of the proceedings in accordance with Rule 27 of the Industrial Tribunals Rules of Procedure 2005, as amended, which provides as follows:-
“(5) If a party fails to attend or to be represented (for the purpose of conducting the party’s case at the hearing under Rule 26) at the time and place fixed for such hearing, the tribunal may dismiss or dispose of the proceedings in the absence of that party or may adjourn the hearing to a later date.
(6) If a tribunal wishes to dismiss or dispose of proceedings in the circumstances described in paragraph (5), it shall first consider any information in its possession which has been made available to it by the parties.
(7) At a hearing under Rule 26, a tribunal may exercise any powers which may be exercised by a chairman under these Rules”.
The tribunal was assisted in dealing with the matter by considering Harvey on Industrial Relations and Employment Law (‘Harvey’) at Division P1, paragraphs 827-830.01, under the heading of “Failure to Appear”.
ISSUES
4.
The relevant issues before the
tribunal were as follows:-
(i)
Did the Department for Employment
and Learning (“DEL”), or its servants and agents directly discriminate against
the claimant by treating him less favourably on the ground of disability
contrary to Section 3 A(5) of the Act?
(ii) Did DEL or its servants or agents victimise the claimant contrary to Section 55 of the Act as amended?
(iii) Did DEL or its servants or agents subject the claimant to harassment contrary to Section 3B of the Act?
(iv)
Did DEL or its servants and
agents discriminate against the claimant in failing to comply with a duty to
make reasonable adjustments imposed on it in relation to the claimant contrary
to Section 3A(2) of the Act?
(v) Did DEL or its servants and agents discriminate against the claimant for a reason which related to the claimant’s disability contrary to Section 3A(1) of the Act?
(vi) Was the claimant unfairly dismissed contrary to Articles 126-130 of the Employment Rights (Northern Ireland) Order 1996 as amended?
(vii) Was the claimant unlawfully discriminated against by being dismissed or subjected to any other detriment contrary to Section 4(2) of the Act?
(viii) Did the claimant make protected disclosures as defined by Part VA of the Employment Rights (Northern Ireland) Order 1996 as amended, and if so, was he dismissed for making a protected disclosure?
(ix) (In relation to Case Reference 7485/09) are any parts of the claimant’s discrimination claim out of time, and if so, should the tribunal extend time on a just and equitable basis?
(x) (In relation to Case Reference 889/11) does the tribunal have jurisdiction to consider any of the matters contained in the claimant’s claim form which occurred prior to 8 October 2010?
SOURCES OF EVIDENCE
5. The tribunal heard evidence from John McKeown, Head of Human Resources at the time at which the circumstances giving rise to Claim Reference 7485/09 occurred (currently Senior Human Resources Business Manager with DEL), and from Jason Foy, Senior Human Resources Business Partner with DEL. In addition, the tribunal considered a considerable volume of documentation referred to it by Counsel, Mr Ferrity, and by the claimant’s representative pursuant to a direction by the tribunal to furnish documentation, with the consent of DEL’s legal representative, by not later than 12 noon on 9 January 2012.
FINDINGS OF FACT
6. Having considered the evidence and information in accordance with Rule 27 of the Rules, insofar as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-
(i) On 21 January 2008 the claimant was promoted to the grade of Administrative Officer and transferred, on promotion, to the Disablement Advisory Service, (“DAS”). The tribunal is satisfied that events prior to that date are not relevant to these proceedings except as general background. From relevant information and documentation before the tribunal it appears that from in or about October 2008 until May 2009 performance issues arose involving the claimant. Documentation signed on behalf of his employer and by the claimant on 13 November 2009, indicates that drinking alcohol in the evenings was affecting his performance. Having sought advice from Human Resources, management sought to address the performance issues with the claimant who advised management that his severe pre-lingual hearing disability was not affecting his performance.
(ii)
Following the completion of the
inefficiency performance process, including the appropriate trial periods,
Human Resources within DEL decided to demote the claimant. The claimant was
told on 22 May 2009 that he was going to be demoted. This was confirmed to him
in writing on 28 May 2009 and the demotion came into effect on 1 June
2009. The claimant lodged a detailed written appeal against his demotion on
10 June 2009 and, on
8 September 2009, following an appeal hearing on 18 August 2009, his
demotion was rescinded by John McKeown, Head of Human Resources. The claimant
was then reinstated from the grade of Administrative Assistant to his former grade
of Administrative Officer.
(iii) Previously, in July-August 2009, the claimant and his representative had embarked upon a campaign of sustained correspondence to MLAs and DEL about the inefficiency action taken against the claimant. The tribunal is satisfied that the claimant’s reinstatement was a reasonable adjustment. He only subsequently asserted that factors relating to his disability affected his performance. Reinstatement also allowed him to complete a further trial period and, following discussions with Disability Action, Human Resources within DEL committed themselves to finding a suitable post for the claimant based on occupational psychology report recommendations in order to ensure that he had the best opportunity to succeed. The claimant however lodged a written grievance with HR Connect on 23 October 2009 and presented a claim to the tribunal on 25 November 2009 alleging disability discrimination. Following receipt of the Occupational Psychology Report the Vacancy Management Team within DEL actively sought a suitable post for the claimant, having also obtained advice from the Occupational Psychology Unit. The claimant was then provided with a post within the Finance Section of the Office of the Industrial Tribunals and the Fair Employment Tribunal (“OITFET”) and commenced employment on 15 March 2010. Colleagues received RNID Deaf Awareness Training.
(iv) In June 2010, management within OITFET received complaints regarding inappropriate behaviour by the claimant against female colleagues. These issues were dealt with locally and informally by management with input from Human Resources and Disability Action.
(v) In October 2010 the inappropriate behaviour was repeated by the claimant against a number of female members of staff, one of whom was very upset. A decision was taken to suspend the claimant on 8 October 2010 pending an investigation into an allegation of inappropriate behaviour. Following the suspension, DEL received correspondence from Deafworks dated 11 October 2010, suggesting that, in addition to his severe deafness disability, the claimant may also have Asperger’s Syndrome. This was the first time that the possibility of the claimant having such a syndrome was raised with DEL.
(vi) The claimant presented a further grievance on 1 November 2010. Beverley Harrison, an employee of DEL, met with the claimant to discuss his grievance on 5 November 2010. She had previously dealt with a grievance submitted by the claimant in October 2009. However, no allegations appear to have been raised against Beverley Harrison in the grievance submitted on 1 November 2010. In any event, the claimant chose not to pursue an appeal against her decision in relation to this grievance. Allegations concerning Beverley Harrison appear to relate to a series of correspondence between the claimant’s representative and the Departmental Solicitors Office. At the meeting with the claimant on 5 November 2010 he was advised by Beverley Harrison that the matters relating to the disciplinary process would be dealt with as part of that process rather than addressed as a separate grievance.
(vii) A detailed report confirming that the claimant had Asperger’s Syndrome prepared by Joanne Douglas, Consultant Psychologist at the Spectrum Diagnostic Assessment and Therapy Centre, was received by DEL in December 2010. A meeting was held by DEL on 13 December 2010, notes of which were considered by the tribunal. These notes, described as “action points”, reveal that DEL took the diagnosis of Asperger’s Syndrome very seriously. The issue of reasonable adjustments, the conduct of the investigation, training for HR/HR Connect, mitigation factors in the manner of which the disciplinary investigation was to be completed, and support for the claimant were all highlighted.
(viii) Bruce Robinson was, at the material time, Head of the Northern Ireland Civil Service and Permanent Secretary of OFMDFM and had no employment relationship with the claimant. He is therefore dismissed as a respondent from these proceedings.
(ix) HR Connect provides an administrative support service to Northern Ireland Civil Service Departments. It is a brand name for services provided by Fujitsu UK and Ireland and Capita plc arising out of a contractual relationship between the Department of Finance and Personnel and Fujitsu. These 3 respondents are also dismissed from these proceedings.
(x) Dr Malcolm McKibbin was, at the date of the third claim, (920/12) Head of the Northern Ireland Civil Service and is not the claimant’s employer. The only material involvement of Dr McKibbin arises from an email sent to him by the claimant’s representative on 19 December 2011 essentially inviting him to become involved in the claimant’s case. However Dr McKibbin responded on 10 January 2012 stating that this was a matter for DEL and that it would not be appropriate for him to intervene and further stated that any correspondence received on the subject would be forwarded to the Department for consideration. He is likewise dismissed as a respondent from these proceedings. Jason Foy and Alan Shannon are employees of DEL. Counsel for DEL however contended that the correct respondent in all of the proceedings should be DEL alone as the claimant’s employer and that all other respondents should be dismissed from the proceedings. He also conceded that if the claimant were to be successful, any remedy awarded would be against DEL.
(xi) For the avoidance of doubt the tribunal has no jurisdiction to consider issues arising under the Data Protection Legislation.
(xii) In the period between January and April 2011 relevant Human Resources staff and HR Connect staff received training in dealing with staff with a hearing impairment. This training was delivered by RNID. Further training for Human Resources and HR Connect staff on dealing with staff with Asperger’s Syndrome was delivered by the National Autistic Society.
(xiii) The claimant did not agree to attend meetings in relation to the disciplinary process. Human Resources, having taken into account the report from the Consultant Psychologist, Joanne Douglas, consulted with Dr Addley of NICS Occupational Health Service and received correspondence from him which the tribunal also considered. Human Resources also consulted with the Occupational Psychology Unit and Disability Action in order to adjust the disciplinary process to allow for the claimant’s disabilities. An adjusted process was agreed but the claimant still opted not to meet with HR Connect as part of the disciplinary investigation process. However, in light of the Asperger’s Syndrome diagnosis, Human Resources decided to bring the inefficiency process to an end in order to allow the claimant an opportunity to perform where adjustments for Asperger’s Syndrome had been made in recognition of his disability, and without the pressure of the inefficiency process.
(xiv) In May-June 2011 training was provided for the claimant supported by a Disability Action Support Worker. The investigation report from HR Connect was provided to DEL on 18 July 2011 and on 12 August 2011 the claimant was invited to a disciplinary meeting but advised DEL on 15 August that he would not attend. On 15 September 2011 the claimant made a request to furnish written responses to the disciplinary charges and a response was received on the same date. On 26 September 2011, Belinda Tunnah of DEL Human Resources wrote to the claimant giving him a formal written warning (expiring on 26 September 2012), arising out of his inappropriate behaviour towards female members of staff.
(xv) It is a characteristic of Asperger’s Syndrome that the individual will stare at other people. However, the report from Joanne Douglas, and the medical evidence from Dr Cullen and Dr Addley, do not indicate that such staring only at female members of staff in an inappropriate sexual manner, can be justified or explained by the individual having Asperger’s Syndrome. Furthermore, one of the charges leading to the formal written warning related to the claimant looking up a female member of staff’s skirt in the kitchen area of the office. Moreover, the document prepared by Belinda Tunnah entitled “Disciplinary case decision rationale” shows clearly that in arriving at her decision, she considered the claimant’s disabilities carefully and also took into account the Spectrum Diagnosis Assessment and Therapy Centre report from Joanne Douglas. She also took into account the interventions which had been made since the misconduct occurred which included one-to-one training delivered by Spectrum, “Social eyes” provided by the National Autistic Society, personal awareness training, and NIC/DEL Diversity on line training. She also notes that:-
“I have considered Mr McCann’s disabilities and the issues referred to in the SDAT report and I am mindful of the Department’s duty of care obligations to all staff including those who act in an inappropriate way”.
(xvi) The claimant returned to work on 1 October 2011 and appealed the disciplinary decision of Belinda Tunnah. It is also clear to the tribunal that DEL continued to consider the claimant’s disabilities in the context of ongoing reasonable adjustments. Belinda Tunnah also reduced the duration of the claimant’s formal written warning from the normal 24 months to 12 months to reflect mitigating factors contained in Joanne Douglas’ report and the separate medical report from Dr Cullen. Jason Foy dealt with the appeal on 1 November 2011 and upheld the decision to impose a formal written warning. This was confirmed in correspondence to the claimant dated 3 November 2011. It is significant that the claimant did not deny the allegations as part of his grounds of appeal.
(xvii) Beginning with an email dated 7 October 2011 to Belinda Tunnah, the claimant issued 35 pieces of correspondence over a three month period which Human Resources considered were provocative and aggressive in nature and contained a number of serious allegations against the Department and its officials. These included allegations of bullying, victimisation, harassment, corruption endemic from the most senior of levels downwards, gross inefficiency, misuse and waste of taxpayer’s money, lack of integrity, partiality and unlawful behaviour, and deliberately delaying the transfer of OITFET to the Department of Justice because DEL was a respondent in cases brought by the claimant, thereby inferring ulterior or other motives by DEL in dealing with the claimant.
(xviii) Following legal advice it was decided that the appropriate course of action required to deal with the claimant’s inappropriate correspondence was to consider disciplinary action. Disciplinary action was initiated on 6 January 2012, (Case Reference D/140302), and on 13 January 2012, the claimant was charged with misconduct in relation to the emails making allegations against DEL and a number of senior staff. It was decided that due to the nature of the evidence and the content of the emails, an investigation would not be required. The tribunal considers this to have been a reasonable approach in the circumstances.
(xix) On the previous day, (12 January 2012), further allegations were reported to management of inappropriate staring by the claimant at a female colleague. On 13 January 2012, DEL decided to suspend the claimant based on previous behaviour and its duty of care to all staff. A separate investigation into these allegations was initiated (Case Reference D/140306). The claimant regarded being asked by the investigating team to attend in person to answer questions as being harassment. He also alleged that it was harassment for the same complainant to complain against him again. The investigation report was redacted to anonymise the names of witnesses but the complainant was identified. On 10 November 2012, in relation to internal Case Reference D/140302, the claimant suggested that his emails were “protected disclosures”.
(xx) Following further emails from the claimant containing more allegations against DEL and a number of senior staff, he was charged with misconduct and issued with a final written warning on 17 February 2012 which would expire on 17 February 2013. Jason Foy, who the tribunal found to be an impressive and credible witness, issued the final written warning. He exhorted the claimant at the end of the correspondence of 17 February 2012 conveying the final written warning that:-
“You must not make further serious, inappropriate and unfounded allegations against the Department and its senior staff.”
The claimant appealed this decision. The appeal was heard on 20 March 2012
by Colm Boyle, Employment Service Director within DEL. He confirmed the final
written warning and stated that the reason for his decision was based on the
following:-
“(1) That the decision-maker in the Disciplinary Procedure gave full and careful consideration to all of the available evidence in this case before making his decision;
(2) That the decision to issue a final written warning was proportionate to the nature and severity of the misconduct which took place;
(3) That due consideration was given by the decision-maker to your disabilities, resulting in the application of disciplinary action for a period of one year”.
(xxi) On 8 March, and prior to the appeal hearing in Case Reference D/140302, the claimant issued further emails containing yet more allegations against the Department and a number of senior staff. Jason Foy’s correspondence to the claimant of 8 March 2012 alerts him to the fact that these latest emails were considered to be a serious disciplinary matter, which could potentially constitute gross misconduct and which could lead to disciplinary action including dismissal in accordance with the formal procedures set out in the disciplinary policy in the HR handbook (Case Reference D/140332). The claimant forwarded written responses to the charge in Case Reference D/1403206 on 9 March 2012, 24 March 2012 and 27 April 2012. HR Connect’s investigation report was received by DEL Human Resources in respect of the above matter on 23 March 2012. Correspondence from Jason Foy dated 29 March 2012 to the claimant outlined the charge involving a female member of staff. He was informed that this was considered to be a serious disciplinary matter which could potentially constitute gross misconduct leading to disciplinary action including dismissal. At all times during the various disciplinary processes, the claimant’s disabilities were taken into account and weighed against the seriousness of the charges and DEL’s responsibilities towards other members of staff. Furthermore, by this time, there was an extant formal written warning, a final written warning, and two charges of potential gross misconduct pending against the claimant.
(xxii) There is no evidence before the tribunal to satisfy it that any of the disciplinary actions were taken or progressed against the claimant on the ground of his disability, nor is there evidence to satisfy the tribunal that he was either harassed or victimised in accordance with any of the provisions of the Act or that any of the actions taken by DEL, its servants or agents, or by any of the other respondents constituted any form of unlawful discrimination, including disability related discrimination, under the Act. This also relates to the dismissal of the claimant on 23 May 2012, and any claim that he was victimised because he had presented a claim or claims to the tribunal.
(xxiii) The tribunal considers it appropriate to set out the terms of the correspondence, signed by Jason Foy and dated 23 May 2012 dismissing the claimant, as follows:-
“Dear Mr McCann
RE: DISCIPLINE CASES – D/140332 & D/140306
On 8 March 2012 and 29 March 2012 you were informed that the Department was considering taking disciplinary action against you in relation to two cases.
You previously made clear that, owing to your disability, you did not wish to attend a Disciplinary meeting or be interviewed. You made written responses to the charges on 9 March 2012, 24 March 2012 and 27 April 2012. As such I have given careful consideration to all the evidence available, including your responses to the charges, in coming to a decision.
D/140332
You made a series of serious, inappropriate and unfounded allegations against the Department and a number of its staff during February and March 2012. You were considered to have breached the official instruction given to you in my letter of 17 February 2012 which stated:
‘You must not make further serious, inappropriate and unfounded allegations against the Department and its senior staff.’
You were also considered to have breached an official instruction given to you in a letter from Mr Andrew Hamilton on 5 August where you were reminded that the Standards of Conduct section of the HR Handbook clearly prevents civil servants from attempting to bring outside influence to bear in internal matters. This was considered to be a breach of Section 9 of the Standards of Conduct.
Your emails in incidents 1 to 6 all contain serious, inappropriate and unfounded allegations against the Department and a number of individual members of staff. For your reference, I have listed the details again at Annex A. Your accusations included the misappropriation of public funds, squandering taxpayers’ money, ‘frightening’ Ms Colette Quinn and ‘stripping’ you of your ‘disability rights’.
You were charged with:
· Breach of Official Instructions
· Misconduct of any kind that may have an adverse effect on the working of Departments
· Breach of section 9 of the Standards of Conduct
I consider that your diagnosis of Asperger Syndrome offers some degree of mitigation for the tone and content of the emails. Nevertheless, these are unacceptable. I am satisfied that your conduct represents misconduct and a breach of official instructions. I consider that Asperger Syndrome does not constitute mitigation for your breach of official instructions.
I consider that, on balance, that charge of breaching Section 9 of the Standards of Conduct is not sustained.
D/140306
An investigation found that, on 11 January 2012, you stared inappropriately at Miss Walsh in the ‘breakout area’ of the third floor of Killymeal House on three separate occasions. The investigation also established that, a few weeks before this, Miss Walsh was standing at the lift area of the third floor of Killymeal House. It was alleged that, at this time, you walked behind Miss Walsh, stopped, and stared at her inappropriately.
The investigation has established that the evidence suggests that you had been staring at Miss Walsh in an inappropriate manner. You had disputed this in your response to the charge.
The investigation report concludes that the evidence
suggests that you had looked at Miss Walsh through a glass panel overlooking
the “breakout” area of the third floor on 11 January 2012. You were observed
doing this. The report states that the evidence suggests that you had been
staring at
Miss Walsh’s body on these occasions.
Miss Walsh was visibly upset by your behaviour and this has been borne out in the evidence of a number of witnesses.
The report concludes that, in light of all of the evidence presented, that your staring was of a sexual nature and that Miss Walsh had a reasonable belief of this.
I have considered the statements set out in the report as well as your submission of 27 April 2012 in great detail and conclude that, on the balance of probabilities, you had stared at Miss Walsh in an inappropriate manner on 11 January 2012 and at Miss Walsh a few weeks prior to this at the lift area of the third floor of Killymeal House.
Accordingly, I find that your behaviour amounts to Gross Misconduct.
In your written response to the charge in case D/140306, you detailed the training you have received which has been facilitated by the Department. You state that your staring is involuntary and is a consequence of your condition. You cite the evidence of Witness B who states that she has observed you trying to correct yourself and appear to count ‘in [your] head’ the number of seconds for which you would look at people. I accept this evidence in mitigation.
I consider that the reports from Ms Joanne Douglas and Dr Edna Cullen offer some degree of mitigation for your behaviour but do not excuse it. The complaints in this case and in a previous case have been made by exclusively female staff which cannot be ignored. Your diagnosis and past behaviour indicate a strong likelihood that incidents of this nature will occur again, even if you were transferred to another branch or Department. The right of female staff to work in an environment where they are not subject to such behaviour is important. The Department has a duty of care to its female staff which must be balanced with your rights.
Paragraph 1.5 of the NICS Dignity at Work Policy states:
‘At times the offensive conduct can be unintentional on the perpetrator’s part. However, it must be emphasised that it is the impact of the conduct on the recipient and not the intention of the perpetrator that is significant. Staff whose behaviour constitutes harassment, bullying, discrimination or victimisation can be liable for disciplinary action which could lead to their dismissal.’
This is a fundamental principle of the policy and does not diminish the impact of your behaviour on Miss Walsh.
Your Asperger Syndrome has been recognised by the Department and, as detailed above, additional training has been purchased to help you to correct your behaviour. A support worker has been provided through Disability Action to work with you to reinforce these messages. Despite this, you have continued to behave inappropriately.
I have decided that you should be dismissed. Your dismissal will take effect from 23 May 2012.
You should now contact Rene Murray (Rene.Murray@delni.gov.uk or 02890 250065) to arrange to return any equipment (including your Contego device and security pass), documents, books etc that have been issued to you or to collect any personal belongings. In accordance with the HR Handbook an overpayment may be raised against you if any leave has been taken in excess of your leave entitlement.
You have the right to appeal against this decision. If you wish to avail of this right please advise me in writing, setting out your reasons for appeal, within 10 working days from the date of this letter.
You also have the right of appeal against this decision to the NICS Appeal Board within 3 months from the date of your dismissal. If you wish to exercise this right you should state the reasons for your appeal in writing and send it to:
The Secretary
NICS Appeal Board
4th Floor
Royston House
Upper Queen Street
BELFAST
BT1 6FD
If you require any further explanation of the content
of this
letter, please contact Geraldine Rocks on 02890 257855 or Geraldine.Rocks@delni.gov.uk.
Finally I wish to remind you of the availability of Welfare services (02890 547427),
Carecall (02890 245821) and your support worker who can provide advice and
support.
Yours sincerely,
JASON FOY
SENIOR HR BUSINESS PARTNER”
(xxiv) The claimant appealed the decision to dismiss him in correspondence of 20 June 2012. The appeal hearing, which the claimant did not attend, was dealt with by Nuala Kerr, Deputy Secretary. The appeal outcome letter, dated 13 August 2012 states as follows:-
“Dear Mr McCann
RE: DISCIPLINARY - D/140306 and D/140332
I refer to your appeal against the outcome of the discipline decision made on 23 May 2012. It was noted that you had previously made clear that, owing to your disability, you did not wish to attend an appeal meeting or be interviewed.
I have given full consideration to all of the documentation available to me in relation to your case, including the reasons for your appeal set out in your letter of 20 June 2012.
I have decided that your appeal is not upheld and I am now writing to confirm that the decision to dismiss you stands. The reason for my decision is as follows:
In relation to the allegation that you were dismissed because of disability, I considered the evidence from the report and advice received. I conclude that you were dismissed on the grounds of gross misconduct. In making the decision to dismiss, mitigating factors relating to your disability were taken into account.
You allege that the disciplinary action was totally out of proportion. Having taken into account the nature of your actions, which led to the two disciplinary cases, and the fact that you were currently under warning for previous misconduct, I conclude that your actions were sufficiently serious. The disciplinary procedures allowed proper presentation of evidence in support of the disciplinary actions taken by the Department. The procedures also provided you the opportunity to respond in both cases. Mitigating factors in relation to your disability were taken into account. Each disciplinary case independently could have reasonably resulted in dismissal due to the previous warnings which were in place.
In relation to the quality of the investigation report, I conclude that the investigation report was adequate. I also conclude that the handling of the original complaint was appropriate in that it was treated seriously, and the allegations were subject to independent investigation and review. The outcome of this report was given proper consideration, and balanced by professional opinion and advice, before conclusions were reached on disciplinary action. You were provided with the opportunity to participate in the investigation process but chose not to. You also asserted that the elements of the report and investigation were ‘unlawful’ without providing a substantive basis for such assertions. I also noted that Hrconnect, as the contracted NICS HR service provider, are the appropriate party to carry out this investigation.
You also queried whether the redaction of the report was appropriate. Having reviewed the report, I conclude that it has been redacted appropriately. Ideally, the appendices to the HRConnect report ought to have been issued to you, subject to any necessary redactions, although I note that the appendices not released, which were relied on in reaching conclusion were referenced extensively in the main body of the report.
I also consider that the information provided by you did not constitute protected disclosures. The fact that the information instead consisted of serious, unfounded and inappropriate allegations against a number of individuals justified disciplinary action.
You have now exhausted your right of internal appeal in accordance with the Discipline Policy in the HR Handbook, and the decision is final.
Yours sincerely
NUALA KERR
THE DEPUTY SECRETARY”
(xxv) Again, as previously stated, the tribunal is satisfied that DEL took the claimant’s disabilities fully into account throughout the material events specified in the three claims before the tribunal and reflected this in the manner in which they dealt with the claimant before and throughout the disciplinary process leading to the termination of his employment.
THE LAW
7. (1) Article 3A of the Act states as follows:-
“Meaning of “discrimination”
3A.—(1) For the purposes of this Part, a person discriminates against a disabled person if —
(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and
(b) he cannot show that the treatment in question is justified.
(2)
For the purposes of this Part, a
person also discriminates against a disabled person if he fails to comply with
a duty to make reasonable adjustments imposed on him in relation to the
disabled person.
(3) Treatment is justified for the purposes of sub-section (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.
(4) But treatment of a disabled person cannot be justified under sub-section (3) if it amounts to direct discrimination falling within sub-section (5).
(5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having a particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.
(6) If, in a case falling within sub-section (1), a person is under a duty to make reasonable adjustment in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under sub-section (3) unless it would have been justified even if he had complied with that duty.
Meaning of “harassment”
3B.—(1) For the purposes of this Part, a person subjects a disabled person to harassment where, for a reason which relates to the disabled person’s disability, he engages in unwanted conduct which has a purpose or effect of —
(a) Violating the disabled person’s dignity, or
(b) Creating an intimidating, hostile, degrading, humiliating or offensive environment for him.
(2) Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of sub-section (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect”.
Victimisation
Section 55 of the Act provides as follows:-
“55. - (1) For the purposes of Part II or Part III, a person (“A”) discriminates against another person (“B”) if -
(a) he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B’s; and
(b) he does so for a reason mentioned in 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 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.
(3) Where B is a disabled person, or a person who has had a disability, the disability in question shall be disregarded in comparing his circumstances with those of any other person for the purposes of subsection (1)(a).
(4) Subsection (1) does not apply to treatment of a person because of an allegation made by him if the allegation was false and not made in good faith…..”
(2) The tribunal found the summary on disability discrimination given by Lord Justice Hooper in the case of O’Hanlon v Commissioners for HM Revenue and Customs [2007] EWCA Civ 283 (2007) IRLR 404, to be of assistance. In paragraphs 20-22 of his judgment he states as follows:-
“Section 3A identifies three kinds of disability discrimination. First, there is direct discrimination. This is the situation where someone is discriminated against because they are disabled. This particular form of discrimination mirrors that which has long been found in the area of race and sex discrimination. As with other forms of direct discrimination, such discrimination cannot be justified …
Second, there is disability-related discrimination …
Third, there is the failure to make reasonable adjustments form of discrimination in sub-section (2). Here, the employer can be liable for failing to take positive steps to help to overcome the disadvantages resulting from the disability. However, this is once he has a duty to make such adjustments. That duty arises where the employee is placed at a substantial disadvantage when compared with those who are not disabled”.
(3) The tribunal also took into account relevant sections in the Disability Code of Practice Employment and Occupation (“the Code”), being careful not to use the Code to interpret the legislative provisions. It also considered Harvey on Industrial Relations and Employment Law (“Harvey”) at L.368.01ff in so far as relevant.
(4) Reasonable Adjustments
(i) The tribunal considered carefully the provisions of Sections 4A and 18B of the Act. Paragraph 5.3 of the Code states:-
“The duty to make reasonable adjustments arises where a provision, criterion or practice applied by or on behalf of the employer, or any physical feature of premises occupied by the employer, places a disabled person at a substantial disadvantage compared with people who are not disabled. An employer has to take such steps as it is reasonable for it to have to take in all the circumstances to prevent that disadvantage – in other words the employer has to make a “reasonable adjustment”. Where the duty arises, an employer cannot justify a failure to make a reasonable adjustment……
…5.4 It does not matter if a disabled person cannot point to an actual non disabled person compared with whom she/he is at a substantial disadvantage. The fact that a non disabled person, or even another disabled person, would not be substantially disadvantaged by the provision, criterion or practice or by the physical feature in question is irrelevant. The duty is owed specifically to the individual disabled person.
…. 5.11 The Act states that only substantial disadvantages give rise to the duty. Substantial disadvantages are those which are not minor or trivial. Whether or not such a disadvantage exists in a particular case is a question of fact.
… 5.24 Whether it is reasonable for an employer to make any particular adjustment will depend on a number of things, such as its costs and effectiveness. However, if an adjustment is one which it is reasonable to make, then the employer must do so. Where a disabled person is placed at a substantial disadvantage by a provision, criterion or practice of the employer, or by a physical feature of the premises it occupies, the employer must consider whether any reasonable adjustments can be made to overcome that disadvantage. There is no onus on the disabled person to suggest what adjustments should be made (although it is good practice for employers to ask) but, where the disabled person does so the employer must consider whether such adjustments would help overcome the disadvantage, and whether they are reasonable.”
(ii) The tribunal also considered the types of adjustments which an employer might have to make and the factors which may have a bearing on whether it would be reasonable for an employer to make a particular adjustment. These are set out in Section 18B of the Act as follows; (in so far as may be material and relevant)
“Reasonable adjustments: supplementary
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 shall be had, in particular, to -
(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;
(b) the extent to which it is practicable for him to take the 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 step;
(f) the nature of his activities and the size of his undertaking;
(g) .…
(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.
(3) ….
(4) ….
(5) ….
(6) A provision of this Part imposing a duty to make reasonable adjustments applies only for the purpose of determining whether a person has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such.”
(iii) The tribunal also considered the guidance given to Tribunals in the Employment Appeal Tribunal case of Environment Agency v Rowan (2008) IRLR 20 where Judge Serota states at paragraph 27 of his judgment:-
“In
our opinion an employment tribunal considering a claim that his employer has
discriminated against an employee pursuant to Section 3A(2) of the Act by
failing to comply with the
Section 4A duty must identify:-
(a) the provision, criterion or practice applied by or on behalf of an employer, or
(b) the physical feature of premises occupied by the employer, or
(c) the identity of non-disabled comparators (where appropriate) and
(d) the nature and extent of the substantial disadvantage suffered by the claimant. It should be borne in mind that identification of the substantial disadvantage suffered by the claimant may involve a consideration of the cumulative effect of both the “provision, criterion or practice applied by or on behalf of the employer” and the “physical feature of premises”, so it would be necessary to look at the overall picture.
In our opinion, an employment tribunal cannot properly make findings of a failure to make reasonable adjustments without going through that process. Unless the employment tribunal has identified the four matters we have set out above, it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage”.
(5)(i) The tribunal also considered Section 42(2) of the Act which states:-
“It is unlawful for an employer to discriminate against the disabled person —
…
(d) By dismissing him or subjecting him to any other detriment”.
(ii) In this case, the claimant was alleging that he had been unfairly dismissed by the respondent or alternatively constructively dismissed under Articles 126-130 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).
8. (i) The law in relation to protected disclosures is set out in Part VA of the Order. In relation to disclosures qualifying for protection Article 67B states as follows:-
“(1) In this Part A “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following –
(a)
That a criminal offence is
being committed or is likely to be committed;
(b)
That a person has failed, is
failing or is likely to fail to comply with any legal obligation to which he
is subject;
(c) That a miscarriage of justice has occurred, or is occurring, or is likely to occur;
(d) That the health or safety of any individual has been, is being or is likely to be endangered;
(e) That the environment has been, is being or is likely to be damaged, or;
(f) That information tending to show any matter falling within any one of the preceding sub-paragraphs has been, is being or is likely to be deliberately concealed ……….
(5)
In this Part “the relevant
failure”, in relation to a qualifying disclosure, means the matter falling
within sub-paragraphs (a) to (f) of paragraph (1).
Disclosure to employer or other responsible person
67C. — (1) A qualifying disclosure is made in accordance with this
Article if the worker makes the disclosure in good faith —
(a) to his employer, or ……….
Protected disclosures
70B. — (1) A worker has the right
not to be subjected to any detriment by any act, or any deliberate failure to
act, by his employer done on the ground that the worker has made a protected
disclosure.
(2) …… this Article does not apply where —
(a) the worker is an employee, and
(b) the detriment in question amounts to dismissal (within the meaning of
[Part XI]).”
Article 134A of the Order states as follows:-
“An employee who is dismissed shall be regarded for the purposes of this Part
as unfairly dismissed if the reason (or, if more than one, the principle
reason) for the dismissal is that the employee made a protected disclosure”.
(ii) The law in relation to unfair dismissal is set out in the Northern Ireland Court of Appeal Decision in Patrick Joseph Rogan v South Eastern Health and Social Care Trust (“Rogan”) - judgement delivered on 13 October 2009, as follows:-
“… the statutory provisions governing the determination of the fairness of the dismissal were found in article 130 of the Employment Rights (Northern Ireland) Order 1996.
“130.― (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this paragraph if it—
….(b) relates to the conduct of the employee,
(4) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case."”
(iii) Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and in this case to demonstrate that it was a reason relating to the conduct of the employee. If the employer successfully does so the tribunal then applies its judgment to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal.
[16] The manner in which the tribunal should approach that task has been considered by this court in Dobbin v Citybus Ltd [2008] NICA 42. Since there was no dispute between the parties in relation to the relevant law I consider that it is only necessary to set out the relevant passage from the judgment of Higgins LJ.
“[48]… The equivalent provision in England and Wales to Article 130 is Section 98 of the Employment Rights Act 1996 which followed equivalent provisions contained in Section 57 of the Employment Protection (Consolidation) Act 1978.
[49] The correct approach to section 57 ( and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – and explained and refined principally in the judgments of Mummery LJ in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.
[50] In Iceland Frozen Foods Browne-Wilkinson J offered the following guidance –
‘Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by section 57(3) of the Employment Protection Consolidation) Act 1978] is as follows:-
(1) the starting point should always be the words of section 57(3) themselves;
(2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;
(3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;
(4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;
(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.’
[51] To that may be added the remarks of Arnold J in British Homes Stores where in the context of a misconduct case he stated -
‘What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure,” as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter “beyond reasonable doubt.” The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion’.”
(iv) At paragraph 26 of Rogan, Morgan LCJ states as follows:-
“The judgment as to the weight to be given to evidence was for the disciplinary panel and not for tribunal. In this instance at appears that the tribunal has strayed into the forbidden territory of making its own determination on the evidence”.
Again at paragraph 27 of his judgment, Morgan LCJ states:-
“In our view the conclusion by the tribunal that “the panel found as proven fact incidents of assault as having occurred against the clear weight of the evidence” is a firm indication that the tribunal engaged in the weighing of these matters when it was for the disciplinary panel to carry out that task”.
In paragraph 28 he continues:-
“The tribunal’s conclusion that the disciplinary panel had not approached this matter in a fully open and enquiring manner appears to have been reached because of its view about the weight of the evidence. None of this is an indicator of a lack of reasonable investigation”.
Girvan LJ in paragraph 7 of his judgement states as follows:-
“The investigation was one which was reasonable in the circumstances. It is clear from the authorities that the employer’s reasoning must not be subjected to the kind of scrutiny to which an appellate court would subject a tribunal decision.”
BURDEN OF PROOF
9. (1) Guidance on the burden of proof in direct discrimination cases is contained in the Annex to the judgment in the case of Igen and Others v Wong [2005] IRLR 258. However, the reversal of the burden of proof also applies to cases involving failure to make reasonable adjustments as well as disability related discrimination, harassment and victimisation against a disabled person.
(2) In the case of J P Morgan Europe Ltd v Chweidan [2011] EWCA Civ 648, Lord Justice Elias states as follows:-
“5. Direct disability discrimination occurs where a person is treated less favourably than a similarly placed non-disabled person on grounds of disability. This means that a reason for the less favourable treatment – not necessarily the only reason but one which is significant in the sense of more than trivial – must be the claimant’s disability. In many cases it is not necessary for a tribunal to identify or construct a particular comparator (whether actual or hypothetical) and to ask whether the claimant would have been treated less favourably than that comparator. The tribunal can short circuit that step by focussing on the reason for the treatment. If it is a proscribed reason, such as in this case disability, then in practice it will be less favourable treatment than would have been meted out to someone without the proscribed characteristic: See the observations of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 paragraphs 8-12. This is how the tribunal approached the issue of direct discrimination in this case.
6. In practice a tribunal is unlikely to find unambiguous evidence of direct discrimination. It is often a matter of inference from the primary facts found. The burden of proof operates so that if the employee can establish a prima facie case, ie, if the employee raises evidence which, absent explanation, would be enough to justify a tribunal concluding that a reason for the treatment was the unlawfully protected reason, then the burden shifts to the employer to show that in fact the reason for the treatment is innocent, in the sense of being a non-discriminatory reason: See Peter Gibson LJ in Igen v Wong [2005] IRLR 258, paragraph 37”.
Harvey at L376.03, comments as follows:-
“In J P Morgan Europe Limited v Chweidan (2011) EWCA Civ 648, (2011) IRLR 673, (2011) EqLR 779, the Court of Appeal held that both the disability related and direct discrimination claims must fail, (and, as set out above, expressed the view that there is in reality nothing added to a direct discrimination claim by a claim for disability related)”.
(3) The tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson v Newry and Mourne District Council [2009] NICA 24. Referring to the Madarassy decision (supra) he states at paragraph 24 of his judgment:-
“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of adequate explanation that the respondent has committed an act of discrimination. In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination”.
SUBMISSIONS
10. The tribunal considered the submissions made by the respondents’ Counsel.
CONCLUSIONS
11. (1) The tribunal is not satisfied, in the absence of the claimant, that he has proved facts from which in the absence of an adequate explanation the tribunal could conclude that a duty to make reasonable adjustments had arisen, and, if he had been able to do so, there is no evidence before the tribunal that any such duty has been breached. In any event the burden does not shift so as to require DEL to prove that it complied with the duty.
(2) In relation to the claims of direct disability discrimination, disability related discrimination, (including the allegation of a discriminatory dismissal), the tribunal is satisfied that the claimant has not proved facts from which the tribunal could conclude in the absence of an adequate explanation that unlawful discrimination has occurred. It is satisfied, as recorded in the findings of fact, that DEL, its servants and agents approached the issue of the claimant’s disability seriously and that any actions taken against him in relation to performance and misconduct were taken for those reasons and not on the ground of his disability, ie, his severe pre-lingual deafness and/or his Asperger’s syndrome, or that he was treated less favourably for a reason which related to his disability. The tribunal is also satisfied that the claimant has not proved facts from which the tribunal could conclude in the absence of an adequate explanation that he had been victimised or harassed within the meaning of the Act.
(3)
The tribunal is satisfied that DEL was correct in concluding that the emails relied on by the claimant did not constitute
protected disclosures and, in any event, there is clear evidence that the reason
for his dismissal was gross misconduct.
(4) (i) The tribunal finds it helpful to replicate the statement of issues in paragraph 15 of Rogan, duly adapted as follows:-
“(1) Was the dismissal of the claimant by the respondent fair in all the circumstances? In determining this primary issue the Tribunal should consider the following:
(a) Has the respondent shown that the reason relied upon by it in its decision to dismiss the claimant related to the claimant’s conduct?
(b) Had the respondent a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at the time of its decision?
(i) Had the respondent reasonable grounds at the time of its decision on which to sustain its belief in the misconduct of the claimant?
(ii) At the stage the respondent took the decision to dismiss, had the respondent carried out as much of an investigation/enquiry into the matter as was reasonable in all the circumstances?
(c) Was the dismissal a fair sanction in the circumstances?
(d) Was the claimant afforded an effective right of appeal in the circumstances?”
The tribunal answers all questions in the affirmative.
(ii) The claimant’s claims are therefore dismissed in their entirety against all respondents.
Chairman:
Date and place of hearing: 7-10 January 2013, Belfast.
Date decision recorded in register and issued to parties: