Industrial Tribunals Northern Ireland Decisions

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Cite as: [2014] NIIT 945_13IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 945/13

CLAIMANT: Henry Kennedy

RESPONDENT: Department for Social Development

DECISION

The unanimous decision of the tribunal is that the respondent had failed to properly fulfil its duty to make reasonable adjustments under Section 6 of the Disability Discrimination Act 1995 in respect of the claimant. Compensation in respect of injury to feelings of £600.00 is awarded.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mr B Irwin

Mr P McKenna

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr Michael Potter, Barrister-at-Law, instructed by the Departmental Solicitor’s Office.

Background

1. At all relevant times, the claimant was employed by the respondent. He had been a civil servant for some 32 years. He resided in Lisburn and worked in the Plaza Buildings in Central Belfast.

2. At the hearing, the respondent conceded that the claimant, at the relevant times, had been disabled with various conditions for the purposes of the 1995 Act. In particular he had chronic back pain and sciatica resulting in mobility problems. These problems meant that he was in receipt of financial assistance through the Access to Work Programme which was administered by the Department of Employment and Learning. The claimant was reimbursed for taxi fares each day between the Lisburn bus station to the Lisburn train station and, between the Belfast train station and Plaza Buildings. These payments were meant to assist the claimant to continue working given the difficulties experienced by the claimant as a result of his restricted mobility.

3. On 27 March 2013, the claimant was refused permission to put his name forward to be considered for transfer to a vacant post in Lisburn Social Security Office.

4. The claimant alleged that the respondent had unlawfully discriminated against him in this respect and had failed to fulfil its duties under the Disability Discrimination Act 1995.

5. The issues had been agreed at a Case Management Discussion on 21 August 2013 and were:-

“(1) Does the claimant have a disability for the purposes of the Disability Discrimination Act 1995 as amended?

(2) Was the claimant’s subjected to less favourable treatment:-

(a) for a reason relating to his disability contrary to Section 3A(1) of the Disability Discrimination Act 1995 or,

(b) on the grounds of his disability contrary to Section 3A(5) of the Disability Discrimination Act 1995.

(3) Did the respondent act unlawfully insofar as it failed to make a reasonable adjustment to prevent a provision, criterion or practice from placing the claimant at a substantial disadvantage in comparison with persons who are disabled, as required by the DDA and in particular Section 3A(2) and (6) and Section 4A?”

The hearing

6. The hearing took place on one day, ie Wednesday 18 December 2013.

7. The parties had exchanged witness statements in advance in accordance with case management directions which had been issued on 21 August 2013. The original intention had been for each witness to swear or affirm to their witness statement and then to proceed immediately to cross-examination. However, the claimant had been unrepresented throughout and his statement was incomplete. It did not address the issue of disability which was, at that point in the proceedings, a contested issue. The tribunal therefore allowed the possibility of brief additional oral evidence-in-chief from each witness, including the claimant.

8. The panel heard evidence from the claimant on his own behalf. The respondent called Ms Gabrielle O’Connor, who at the relevant time was Disability Liaison Manager and Mr Gerard Shields, who was at the relevant time the acting Line Manager for the claimant.

9. After the closure of evidence, the tribunal heard oral submissions first from the respondent and then from the claimant. It reserved its decision and this document is that decision.

Relevant Law

10. Section 4(2) of the 1995 Act provides that it is unlawful for an employer to discriminate against a disabled person whom he employs:-

“(a) in the terms of employment which he affords him;

(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;

(c) by reusing to afford him, or deliberately not affording him, any such opportunities … .”

Section 5 of the 1995 Act defines discrimination. It includes discrimination for a reason which relates to a person’s disability and a failure to comply with a Section 6 duty.

11. Section 6 provides that when any arrangements made by or on behalf of an employer place the disabled person at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as are reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements having that effect. Various examples are given of such steps; they include transferring him to fill an existing vacancy and assigning him to different place of work. The tribunal concludes another example of such a step would be allowing the employee to apply for a transfer to an existing vacancy at a different place of work which is closer to his home.

Section 6(4) of the 1995 Act provides that regard should be had in such a case to:-

“(a) the extent of which taking the step would prevent the effect in question;

(b) the extent to which it is practicable for the employer to take the step;

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

(d) the extent of the employer’s financial and other resources; and

(e) the availability to the employer of any financial or other assistance with respect to taking the step.”

12. Other relevant points of law can be usefully summarised by referring to the 2013 Code of Practice on ‘Employment and Occupation’ which is issued by the Equality Commission.

Paragraph 5.8 provides:-

“‘Provision, criterion or practice’ include arrangements, for example, for determining to whom employment should be offered, and terms, conditions or arrangements on which employment, promotion, a transfer [tribunal’s emphasis], training or any other benefit is offered or afforded.”

Paragraph 5.11 provides:-

“Substantial disadvantages are those which are not minor or trivial.”

Paragraph 5.14 provides:-

“An employer only has a duty to make an adjustment if it knows, or could reasonably be expected to know, that the actual or potential claimant is disabled.”

13. If facts are proven from which a tribunal could reasonably infer unlawful discrimination, the burden of proof passes from the claimant to the respondent.

Relevant Facts

14. The respondent operated a system in which employees who felt that they might be disabled for the purposes of the 1995 Act and who therefore might require an adjustment should complete a particular form which was then submitted to the Occupational Health Service (‘OHS’). This form was known as the OHS 5 Disability Assessment form. In that form, the employee would provide specific details of how their medical condition affected each of the relevant areas under the 1995 Act, eg mobility or physical co-ordination. The employee would also specify on that form the adjustments which would assist him at work.

15. The claimant stated in cross-examination that he had completed an OHS 5 form in November 2012 and had returned it. He stated specifically that he had first received this form in electronic format but had been unable to complete it in that format. He had contacted the Department and the form had then been sent out to him in hard copy. He stated he had completed that form in hard copy and had returned it. He said that he had heard nothing further and had then completed another copy of the same form on 16 May 2013. The evidence from Ms O’Connor was that the OHS 5 form had been sent to the claimant for completion in or about November 2012 but she was emphatic that it had not been returned by the claimant to the Department. The claimant also went on to allege that he had completed other copies of this form on ‘three or four occasions in recent years’. Ms O’Connor denied that this had been the case. She stated that only one OHS 5 form had been returned by the claimant, ie the form dated 16 May 2013.

16. The tribunal considers that it is highly unlikely that the claimant, as he alleges, completed ‘three or four’ such forms in recent years or that he had even completed one such form in November 2012. These forms were specifically related to a request by an employee for an adjustment under the terms of the 1995 Act. These forms required an answer. They were not the sort of forms that would have been completed repeatedly by the claimant to receive no response. If even one such form had already been completed by the claimant in November 2012, the tribunal considers it highly unlikely that the claimant would have meekly completed another such form in the same terms in May 2013 without any form of comment, objection or grievance. He would have been entitled to ask why he had not received a response to his earlier form and he would have done so. The tribunal therefore concludes on the balance of probabilities that only one OHS 5 form was completed by the claimant, ie the form that was completed on 16 May 2013. It therefore concludes that the claimant’s evidence in relation to the completion of ‘three or four’ earlier OHS 5 forms and his evidence in relation to the alleged completion of a form in November 2012 was not credible.

17. The OHS 5 form completed on 16 May 2013 by the claimant was completed after the relevant period for this case and indeed after the date on which the claim form commencing these proceedings was signed by the claimant on 13 May 2013. That claim form was submitted to the tribunal and was marked as having been received on 20 May 2013.

18. This case concerns the claimant’s request on 27 March 2013 to be allowed to make an application for an elective transfer to a vacant post at his level in the Lisburn Social Security Office. That request was first made verbally to Mr Gerard Shields who was the claimant’s acting Line Manager. The claimant was advised by Mr Shields that the application was unlikely to be successful because of the embargo then in place on elective transfer applications in the Plaza Buildings. The claimant was however asked to e-mail Mr Shields his request.

19. The claimant almost immediately e-mailed his request at 9.31 am on 27 March, Mr Shields replied promptly at 10.52 am on 27 March turning down the request.

20. The 9.31 am e-mail simply stated that the claimant wished to apply for the post in Lisburn. It did not specify or mention the claimant’s disability, the need for a reasonable adjustment or the 1995 Act. However, Mr Shields, as the claimant’s Line Manager, knew of the claimant’s mobility and other problems and he specifically knew of the application of the Access to Work programme to the claimant. Mr Shields had had to countersign the monthly forms from the claimant seeking reimbursement of the taxi fares on at least one occasion. Mr Shields knew enough to alert any manager of the potential application of the 1995 Act in such circumstances.

21. The 10.52 response referral solely to the business needs of the respondent and to the potential business impact of any transfers out of the Plaza Buildings. It made no mention at any point of the 1995 Act, of the claimant’s disability or of the need to consider reasonable adjustments. It certainly did not suggest that those matters had been considered or that they had formed part of the decision-making process.

22. The claimant objected to this decision in writing on 4 April 2013. He specifically raised his disability and mobility issues at that point and alleged that the decision could amount to unlawful discrimination. Mr Shields replied promptly again to this e-mail on the same day and stated firstly that “the full explanation of my decision was in my original e-mail to you of 27 March” and secondly “your disability and mobility issues were taken into account.”

23. Those two statements are contradictory. It cannot be that the full reasons for the decision were set out in the reply of 27 March if it were indeed the case that the claimant’s disability and mobility had been taken into account and had formed part of that decision. The claimant’s disability was not mentioned at any point in that reply at 10.52 on 27 March.

24. Mr Shields also stated on 4 April that he felt that the claimant’s immediate needs had been met by the financial assistance provided in the Access to Work Programme.

25. Mr Shields was clear in his evidence that since the claimant had not completed an OHS 5 form at that stage in March 2013, the claimant was clearly not in the priority transfer pool operated by the respondent. Employees were placed in that pool following completion and submission of an OHS 5 and a favourable decision from the OHS. Since he was not in that priority pool, he could not have been considered for transfer. That mindset is also clear in the way in which Mr Shields then countersigned the OHS 5 form which was eventually completed in May 2013. On that form, Mr Shields stated:-

“Unable to meet Harry’s request for a transfer closer to home due to Management Directive 18/4/13.”

26. That Directive of 18 April formalised an existing embargo on transfers from the Plaza Buildings for business reasons. However, it stated:-

“It goes without saying that DDA (transfers) will not be affected.”

27. It is clear to the tribunal that Mr Shields was attempting to work the system which had been provided by the Department and that he had taken the view that a DDA transfer would only be a possibility if the claimant was, at that stage, in the priority transfer pool. In other words, the exception which was eventually formalised in the Management Directive only applied to those who had already been placed in that pool. That was clearly an incorrect approach, although an understandable one. The 1995 Act does not state that the provisions of the Act only apply to civil servants if they have already returned an OHS 5 form and only if the return of that form resulted in them being placed in the priority transfer pool. The trigger for the 1995 Act is a relevant disability. It is not dependant on any internal process, even an internal NICS process. The respondent, and Mr Shields in particular, would have had clear knowledge of the claimant’s mobility difficulties and equally clear knowledge of the difficulties experienced by the claimant in commuting between Lisburn and Belfast. It was wrong for the respondent to exclude the claimant from consideration of a transfer simply because a particular OHS form had not been completed and simply because a place in the priority transfer pool had not been internally allocated to him at that point.

28. Following consideration of the OHS 5 form completed on 16 May 2013, the claimant has now been placed in the priority pool from 9 July 2013.

29. The claimant has since been asked to consider an office job in the Lisburn DRD office. He failed to take that offer any further. He stated that he knew the job was not suitable for him. He stated that it would involve too much moving about and that it would also involve taking part in a telephone rota up to 5.00 pm. However, he accepted that he had not tried to speak to any of the management in DRD about the details of the post and he had not tried to see if there could have been any reasonable adjustment in any relevant respect. He was also unable to point to any convincing reason why that post would have involved any more moving about or would have involved any more by way of mobility than his existing post or indeed any other similar post in the Lisburn Social Security Office. In particular, he was unable to point to any reason why the elective transfer in which he was allegedly interested in March 2013 would have been, to any significant extent, any different in terms of mobility or in terms of any relevant matter.

Decision

30. The tribunal concludes that the decision of the respondent on 27 March 2013 not to allow the claimant to apply for a transfer out of Plaza Buildings was because of the Management Directive which was already in place but had been formalised on 18 April 2013. It was not because of the claimant’s disability and it was not for a reason related to his disability. It was the application of an embargo against all transfers out of Plaza Buildings.

31. The tribunal concludes that the respondent has failed to comply with its statutory duty to make reasonable adjustments when it refused to allow the claimant to apply for a transfer to the vacant post in the Lisburn Social Security Office. The insistence on the claimant being placed in advance in the priority transfer pool and the insistence on compliance with internal procedures was mistaken. That insistence was the ‘practice’ for the purposes of Section 6. It placed the claimant at a substantial (ie more than trivial) disadvantage compared to non-disabled colleagues. He had clear difficulties in commuting which resulted from his back pain and sciatica. Those difficulties had already resulted in payments under the Access to Work Programme. Those difficulties were not experienced to that extent by non-disabled colleagues. The opportunity to transfer to the vacant post in Lisburn was a practical way for the respondent to have significantly reduced those difficulties with no apparent impact on the respondent’s financial resources. The claimant was placed relatively quickly on the priority pool once he had completed the OHS 5 form on 16 May 2013. That form contained nothing new of any importance. The claimant was offered a post in DRD in Lisburn. None of this suggests that there were any valid business reasons for failing to accede to the claimant’s request on 27 March 2013.

32. The respondent knew or ought to have known that the claimant had serious mobility issues and that he was, in all probability, disabled for the purposes of the 1995 Act. It seems highly unlikely that taxpayers’ money would have been spent on a regular basis on taxi fares to and from work if that had not been the case and the respondent and Mr Shields were aware of that ongoing financial support.

33. The respondent argued that a reasonable adjustment had already been made in respect of the claimant in that payments were being made under the Access to Work Programme. It is not necessary for the purposes of this case to determine whether the operation of a scheme by DEL was a reasonable adjustment by DSD. It is sufficient to state that one reasonable adjustment, even if it was such an adjustment by an employer, does not remove the Section 6 duty. There is nothing to prevent more than one reasonable adjustment being considered or being put into place.

34. The claimant was less than credible in his evidence relating to when and how often he had submitted OHS 5 forms. He was also unconvincing when he tried to explain why he had failed to take up the offer of a post in the DRD Office in Lisburn. Equally, Mr Shields’ assertion that he had considered the 1995 Act on 27 March 2013 is not consistent with the clear terms of his e-mail on that date. Furthermore, it is not consistent with the e-mail from Ms O’Connor to the claimant on 28 March in which she stated:-

“I also advised him (Mr Shields) that although you were not on the Disability Priority Pool, you would still be regarded as having both a disability and mobility issues and this should be taken into account when making any decisions on transfer requests etc.”

Why would it have been necessary for Ms O’Connor to advise Mr Shields in this way if he had already taken the 1995 Act into account?

35. There is no evidence that the claimant would have been successful in relation to any application for the vacant post in Lisburn Social Security Office on or about 27 March 2013. There is similarly no evidence that he would have taken up any such post even if he had been successful. The example of the DRD post suggests that he may not have taken up any post in the Lisburn Social Security Office. Furthermore, there is no evidence of any financial loss to the claimant.

36. The breach of the reasonable adjustments duty is therefore somewhat technical in this case. The appropriate award is solely in respect of injury to feelings. Having considered the evidence of the claimant and in particular his credibility, the tribunal has determined that the appropriate award is at the lower end of the lowest Vento scale. The tribunal therefore awards £600.00 by way of injury to feelings compensation. While the tribunal accepts that the claimant’s feelings were, on the balance of probabilities, injured by the respondent’s decision 27 March 2013, it concludes that any such injury to feelings was slight. If the claimant had been as desperate as he now suggests for a transfer closer to home, he would have taken the offer of a DRD post in Lisburn much more seriously than he did; in particular he would have spoken to the relevant management in DRD to obtain proper details of the post and of the scope for any necessary reasonable adjustments. He would also have submitted an OHS 5 form earlier than 16 May 2013.

37. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.

Vice President:

Date and place of hearing: 18 December 2013, Belfast

Date decision recorded in register and issued to parties: