Industrial Tribunals Northern Ireland Decisions
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Cite as: [2014] NIIT 94_14IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 94/14
CLAIMANT: Neal Blaney
RESPONDENT: Coleraine Borough Council
DECISION
The unanimous decision of the tribunal is that the claimant’s claims of unfair dismissal and his further claims under the Disability Discrimination Act 1995, as amended, are dismissed.
Constitution of Tribunal:
Employment Judge: Employment Judge Crothers
Members: Mr J Smyth
Ms E McFarline
Appearances:
The claimant appeared in person and represented himself.
The respondent was represented by Mr T Warnock, Barrister-at-Law, instructed by Worthingtons Solicitors.
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 and that his dismissal was discriminatory. The respondent denied all of his claims.
Issues before the Tribunal
2. The issues before the tribunal, as agreed at a Case Management Discussion held on 25 March 2014, were as follows:-
(1) Was the claimant unfairly dismissed contrary to Articles 126 and 130 of the Employment Rights (NI) Order 1996 as amended (“the 1996 Order”)?
(2) Did the respondent’s decision to dismiss the claimant on the ground of his ill-health/capacity, discriminate against him on the ground of his disability contrary to Section 4(2)(d) of the Act?
(3) Did the respondent act reasonably in treating the claimant’s ill-health/ capability as a sufficient ground for dismissal?
(4) Did the respondent discriminate against the claimant on the ground of his disability by failing to make reasonable adjustments to facilitate his return to work, contrary to Section 6 of the Act?
(5) Was the claimant treated less favourably on the ground of his disability contrary to Section 4 of the Act?
Sources of Evidence
3. The tribunal heard evidence from the claimant. On the respondent’s behalf, the tribunal heard evidence from Aidan Mullan, the respondent’s Head of Operations from 1 August 2012, Roger Wilson, Town Clerk and Chief Executive of the respondent from October 2008 to March 2014, Kieran Doherty, Town Clerk and Chief Executive of the respondent, and previously Corporate Director of Environmental Services from 1 April 2011, Lucille McElholm, Human Resources Partner, Sharon McQuillan, Pay Roll Pensions Manager, and Dr David Hamilton, Occupational Health Physician. The tribunal was also presented with an agreed bundle of documentation. The tribunal was also assisted by an agreed chronology, forwarded by the Respondent’s solicitor on 5 September 2014, a copy of which is appended to this decision.
Findings of Fact
4. The tribunal, having carefully considered the evidence before it in relation to the above issues, made the following findings of fact on the balance of probabilities:-
(i) The claimant was employed by the respondent as a Building Control Officer from 16 August 1999 until the effective date of termination of his employment on 1 October 2013. The claimant was absent from work effectively from 1 May 2012. An appointment was arranged with Dr Hamilton of Occupational Health on 16 May 2012 in accordance with the respondent’s absence management policy. In his report of 16 May 2012 Dr Hamilton records that:-
“Neal is currently exhibiting symptoms and signs of an acute mental health illness. He has a previous history of a similar episode a few years ago and I remember meeting him at that time when he was on long term sick leave”.
(ii) Dr Hamilton also recorded that:-
“Neal has limited insight into his current illness” and that he was unfit for work.
(iii) The claimant was deemed by the respondent to be disabled in accordance with the definition in the Act, from 16 May 2012, until the termination of his employment. The time line however does not finish until his appeal against dismissal was dismissed by the respondent on 26 November 2013.
(iv) The tribunal considered the evidence before it in relation to subsequent appointments between the claimant and Dr Hamilton on 13 June 2012, 11 July 2012, 8 August 2012, 5 September 2012, 3 October 2012, 31 October 2012 and 28 November 2012, during which time the claimant remained unfit for work and was being encouraged by Dr Hamilton to engage the services of a private psychiatrist. The claimant eventually agreed with Dr Hamilton to make such an appointment and, by the time of the next review with Dr Hamilton on 23 January 2013, the claimant had attended the private psychiatrist and was awaiting a report. He agreed at that stage to allow Dr Hamilton to see the report when available. However at a further review on 13 February 2013 the claimant refused to disclose the report to Dr Hamilton stating that it was his private property. He also refused permission for Dr Hamilton to contact his GP, but made it clear that he intended to return to work the following week owing to financial concerns. At this stage the claimant was also exhibiting signs of paranoia. In his report to Anne Lennon, the Human Resources Manager, dated 13 February 2013, Dr Hamilton records:-
“I am very concerned about Neal’s fitness for work. He is exhibiting symptoms consistent with a mental health disorder and he has a lack of insight into the fact that he is unwell. Today Neal was irritable and exhibited a lot of paranoia concerns about work, eg. that people had been talking about him in a negative manner and that colleagues and work had access to his email account. I do not believe that Neal is currently fit to be at work, and that if he did return it could both worsen his medical condition and pose a risk to the council, given the nature of Neal’s job involving contact with the public”
(v) A further review with Dr Hamilton on 27 February 2013, during which the claimant expressed his keenness to return to work, was followed by another review on 13 March 2013. In his report, dated 13 March 2013 Dr Hamilton states:-
“Despite his health problems, I think Neal could potentially consider returning to work provided he can do so on a very restricted basis and is able to phase-in, starting by working half-time hours. His duty should also be restricted so that he does not encounter any potential stressful situations as far as possible, and in doing so then he should be office based initially and not carrying out his full range of duties”.
(vi) In his evidence before the tribunal Dr Hamilton was clearly of the view that the claimant would be unable to interact with the public and other professionals in a logical manner given the nature of his condition and his disorganised thought process. He was also concerned about the importance of the decisions he had to make in terms of impact upon the public health and safety. Dr Hamilton clearly had concerns about the claimant not taking prescribed medication and being reluctant to engage with mental health services. It was also his opinion before the tribunal that, had the claimant taken the prescribed medication, he could have returned to his substantive post.
(vii) In advance of receiving Dr Hamilton’s report, Lucille McElholm, the respondent’s Human Resources Business Partner, met with the claimant during which he discussed when he could return to work and raised issues regarding other colleagues. Lucille McElholm stated to the claimant that once she had further information regarding how a return to work could be facilitated, she would ring him and arrange a further meeting. The claimant agreed to this. On receipt of Dr Hamilton’s report of 13 March 2013, Lucille McElholm discussed its contents with Anne Lennon, the HR Manager. They agreed that Dr Hamilton needed to provide further advice regarding the adjustments required to the claimant’s role to ensure that he did not encounter stressful situations.
(viii) The main elements of the claimant’s role involved assessing applications, inspecting work on site, property certificates, postal numbering, and dangerous structure inspections.
(ix) The claimant appeared for work on 22 April 2013 without any liaison with Lucille McElholm or his line manager, David Robinson. However David Robinson and Anne Lennon met with him and explained that he could not return to work until there was agreement with regard to how the respondent could accommodate the restrictions outlined by Dr Hamilton in his report of 13 March 2013. Dr Hamilton had specifically stated in that report that the restrictions he outlined were on the basis that such adjustments could be facilitated.
(x) The claimant attended for another review with Dr Hamilton on 24 April 2013. His report of that date contains the following:-
“If he returns, because of the length of time he has been on sick leave and also due to the nature of his illness, his work will need to be monitored to ensure accuracy. Again, because of the nature of his illness, he should not perform his full range of duties, particularly those pertaining to public and professional contact. It is not clear when, or if indeed at all, these restrictions can be removed. I am aware that this will cause extra work pressures for his manager and colleagues, due to his reduced work output and the need for monitoring, but hopefully this can be facilitated as means of a reasonable adjustment under the terms of the DDA”.
(xi) The tribunal is satisfied that the respondent engaged in a full consultation process with the claimant and, in terms of the restrictions recommended by Dr Hamilton, that the persons best equipped to make an assessment were David Robinson, Principal Building Control Officer, and Jackie Barr, Head of Service, in conjunction with Lucille McElholm as the Human Resources Business Partner.
(xii) The claimant was clearly concerned that his contract of employment might be terminated. After his appointment with Dr Hamilton on 24 April 2013, he had met with Lucille McElholm and outlined that he had been off for nearly 12 months and was worried that his contract would be terminated after one year. Lucille McElholm confirmed to him this was not the case. She explained that his sick pay would be exhausted after that period of time. He requested that he should be paid for annual leave as he had no income. Lucille McElholm stated that she would seek approval for this request from David Robinson and contact the claimant in due course. Mr Robinson was not available as he was on leave. However, a meeting was arranged for 30 April 2013 with David Robinson, Lucille McElholm and the claimant to discuss the contents of Dr Hamilton’s report. This meeting was moved to 2 May 2013.
(xiii) The tribunal was referred to notes of the meeting held between the claimant, David Robinson, and Lucille McElholm on 2 May 2013. They record, inter alia:-
“Neal [Neal’s] role was discussed in detail, the plan checking the assessment that Building regulations side of things. Regarding the regulations Neal would have to communicate with architects and agents to do this and to decide what needs “tweaked” and also Neal would deal with the final plans and the agent and the applicant.
On site he would have to see the foundations and the subfloors, the roof structure, the drainage, the inspections when he would be out and about and to give advice to people.
The certification side of things [,] the construction certificate, structure wise, industrial engineers certificate/calculating thermals (SAP calculations at design and onsite stage), get all checks done, the buildings and the paperwork needs to be correct at the design and completion stage, collation of information in line with regulations. Neal would have looked through new legislative requirements and exemptions – add building project.”
Other aspects of his job were discussed including licensing for entertainment, post and numbering/street naming, and dangerous buildings.
The notes conclude by stating:-
“It was outlined that following this meeting that Jackie Barr (HoS) & David would meet to discuss if the reasonable adjustments requested by Dr Hamilton could apply to Neal’s job. It was outlined that Jackie was off for the rest of this week and that David was off next week so the soonest that Jackie and David would get to meet would be the week of 13 May 2013. It was explained to Neal that as soon as this meeting was held and a decision was made that Lucille would contact him and arrange a follow-up meeting to discuss the outcomes. Neal agreed to this.”
Earlier in the meeting the claimant has stated that he was fit for work and could do whatever the respondent asked him to do. He stated that he had never had any issues with applicants or engineers and had no problem with anyone in work.
(xiv) The managers further discussed adjustments under the Act and suitable alternative employment for the claimant on about 14 and 15 May 2013.
(xv) An email from David Robinson to Lucille McElholm and copied to Jackie Barr, dated 15 May 2013, encapsulates the managers’ assessment of the situation at that point in time. The tribunal considers it important to set out that correspondence as follows:-
“Following on from the meeting which we had with Neal on 2nd May to discuss Dr Hamilton’s report which was dated 24th April.
I was not able to meet up with Jackie Barr until Monday 13th May to discuss Dr Hamilton’s report due to Leave commitments.
The work of a Building Control officer is of a specialist nature and require a large degree of interaction with both the public and other professionals both outside and within the office environment.
Dr Hamilton has stated “If he returns, because of the length of time he has been on sick leave and due to the nature of his illness, his work will need to be monitored to ensure accuracy”.
Dr Hamilton also states that “because of the nature of his illness, he should not perform his full range of duties, particularly those pertaining to public and professional contact”.
The main functions of a Building Control officers are as follows
1. Assess applications submitted for compliance with Building Regulations
2. Inspection of work on site to ensure compliance with Building Regulations
3. Carry out property certificate replies
4. Issue postal number/street naming
5. Carry out Dangerous structure inspections and prepare report for issue of notice.
Points 1 & 2 would cover the core functions of the post and require a high level of communication and interaction with both public and professionals.
Points 2[3] & 3[4] to a lesser degree would not require this interaction. But the quantity of work involved with these duties would not contribute to a significant work load.
Point 5 would again have interaction with others but does not constitute a significant work load within the office.
Having discussed the above with Jackie Barr we cannot see how Neal can return to his current role as a Building Control officer, taking into account the recommendations as set out in Dr Hamilton’s report. There is a substantial amount of functions which are core to the job which Dr Hamilton has stated that Neal should be restricted from doing.
Having both discussed the report in detail we have concluded that there is not any other role within the Environmental Services section which Neal could be reallocated to.
Please contact me if you wish to discuss.
Regards
David Robinson”
(xvi) Lucille McElholm then wrote to the claimant on 11 June 2013 as follows:-
“Dear Neal
RE: LONG TERM ABSENCE
CONSIDERATION OF TERMINATION OF CONTRACT
I write to advise you that a meeting has been set up
with Mrs Jackie Barr, Head of Service and myself under the Sickness Absence
Policy (page 15, section 10.19). Please attend this meeting on Tuesday 2 July
2013 at
2.00 pm in the HR Interview Room, Cloonavin.
The purpose of this meeting is to discuss your level of absence and your continued employment with the Council, where consideration will be given to the termination of your contract. At this meeting all material evidence relevant to your case will be considered and you will be given the opportunity to present relevant facts in support of your case, this will include:
· Ascertaining the length and nature of the illness
· Considering occupational health opinions
· Discussing reasonable adjustments and/or different work arrangements
· Discussing alternative employment/if ill health is applicable
As laid down in the policy you have the right to be accompanied by a work colleague or trade union representative. Sharon McQuillan (TU Representative) will be in attendance at this meeting.
I hope this above date and time is convenient for you, however if you have any queries in relation to this please do not hesitate to contact me on 0 28 70347123.
Yours sincerely
Lucille McElholm
Human Resources Officer”
(xvii) The claimant did not attend the meeting arranged for 2 July 2013. It was then moved to 4 July 2013 and was attended by Aidan Mullan, the respondent’s Head of Operations, together with Lucille McElholm, Sharon McQuillan of NIPSA, and the claimant.
(xviii) During the meeting held on 4 July 2013, 15 Occupational Health Reports forwarded by Dr Hamilton were discussed. It is recorded in the minutes of the meeting that ill-health retirement was discussed with Dr Hamilton and the claimant on 15 May 2013. It is also recorded in the minutes that “Neal stated that Dr Hamilton thought this would not be successful”. The tribunal has no reason to question the accuracy of the minutes which record the following:-
“Redeployment was discussed. It was explained to Neal that there were a number of positions available within Council at present as potential suitable alternative employment options, namely LGV Driver, Semi Skilled Operative, Vehicle Maintenance Fitter, and Business Support Assistant. These were discussed in light of the current restrictions that Dr Hamilton has put in place until Neal avails of treatment. Neal stated that the conditions that Dr Hamilton is putting on his own job and also because of the restrictions placed that none of these jobs are options as they all involve dealing with the public.
Aidan stated that the fact that Neal has not given Dr Hamilton consent to contact his GP nor given him access to his psychiatrist report does not help the situation as Dr Hamilton cannot move forward or assist with treatment. Aidan asked if Neal was going to give this permission. This was discussed between Neal and Sharon and Neal stated that he would think about this. Aidan stated that the permission form would be sent out to Neal by Dr Hamilton and that he needed to sign this and get it back within 7 days.
It was explained that Aidan would compile a report based on all this information and forward this to Kieran Doherty for his decision regarding Neal’s continued employment. A copy would be sent to Neal also.
Meeting ended”.
(xix) The tribunal was also referred to a very detailed report entitled “REPORT RECOMMENDING TERMINATION DUE TO LONG-TERM ABSENCE” prepared by Aidan Mullan after the meeting held on 4 July 2013. It contains a general chronology from 2003 up to 1 May 2012 and reflects the claimant’s view relating to Dr Hamilton’s report of 16 May 2012 “which scared me and which was a complete change to the previous meeting”. A detailed chronology follows the entire process involving the claimant up to and including the meeting of 4 July 2013. It is also apparent from the report that, following the meeting on 4 July 2013, the claimant had not given consent to Dr Hamilton to contact his GP and specialist consultants and had not completed the consent form for access to his medical records.
(xx) Correspondence dated 9 August 2013 was sent to the claimant by Anne Lennon, Human Resources Manager, inviting the claimant to a meeting with Mr Doherty on Thursday 22 August 2013 “to discuss your level of absence so that consideration can be given regarding your continued employment with [the] council.” The letter continues:-
“I can advise you that whilst Mr Doherty will listen to any further views you may have the outcome may result in the termination of your contract of employment.
You may, if you wish, be accompanied at this meeting by an employee/ trade union representative.
Enclosed is a copy of Council’s Sickness Absence Policy that will explain the process at this stage under 10.20, page 15”.
(xxi) The meeting was ultimately held on 17 September 2013 involving Kieran Doherty, Alan Law of NIPSA, Sharon McQuillan of NIPSA, Anne Lennon, Lucille McElholm, and the claimant. The contents of the report prepared by Aidan Mullan were discussed and a termination letter, dated 1 October 2013 ensued. The tribunal considers it essential to set out this correspondence as follows:-
“Dear Neal
RE: HEARING DECISION – CONSIDERATION OF TERMINATION OF CONTRACT DUE TO LONG TERM SICKNESS
Thank you for attending the Absence Hearing held on 17 September 1013 (2013) in accordance with the Council’s Absence Procedure (page 18, section 10.12) to discuss your continued employment with the Council; as you have been off work on sick leave since 01 May 2012 with Stress.
At the hearing we had a lengthy discussion on the details of your sickness absence and the report from Mr Aidan Mullan (Head of Service) recommending termination of your contract of employment. You were able to put forward your own case and views regarding the report. I now write to confirm the outcome of the hearing:
· Following consideration of Mr Aidan Mullan’s report and your own views by way of mitigation a decision has been made that your contract will be terminated and you are dismissed from Council’s service on the grounds of capability. The reason for this decision is because you are unable to return to work in the near future and therefore Council is unable to sustain your level of sickness absence. This termination will take place with immediate effective.
You will have 17 days annual leave outstanding at your final date of employment which equates to £1,976.42 prior to any deductions. As per the Council’s Sickness Absence policy you are also entitled to one week’s paid notice for each year of continuous employment subject to an overall maximum of twelve weeks, therefore you will also be entitled to 12 weeks full pay. This will total £6,975.72 and combined with the above amount equates to £8,952.14 prior to deductions. As you have been paid £2,525,92 (prior to deductions) the remaining amount to be paid is £6,426.22 (prior to deductions) which will be paid in your final salary on 31 October 2013.
You have the right to appeal within 7 working days of receipt of this letter to the Head of Central Services against this decision. If you wish to exercise this right you should write to: Mr David Jackson, Head of Central Services, Cloonavin, 66 Portstewart Road, Coleraine, Co Londonderry, BT52 1EY. Please give full details under which the appeal is being brought.
Yours Sincerely
Mr Kieran Doherty
Corporate Director of Environmental Services”
(xxii) The claimant appealed the termination of his employment on 7 October 2013 in the following terms:-
“FAO Mr David Jackson
RE; RIGHT TO APPEAL DECISION MADE ON MEETING OF 17TH SEPTEMBER 2013 TO TERMINATE CONTRACT OF EMPLOYMENT DUE TO ILL HEALTH
I would like to appeal the decision received by letter of 5th October 2013 to terminate my contract of employment with Coleraine Borough Council due to stress related illness triggered by stress in the work place, a decision which has been made by Mr Kieran Doherty based only on Dr Hamilton employer’s doctor report(s). Last Dr Hamilton report received dated 12th June 2013, approximately 4 months ago.
Despite provision of;
· Fit note from my GP
· Independent medical report stating fit to return to work since February 2013
· In the absence of provision of any contact number for Dr Hamilton, I forwarded contact details to Dr D Hamilton of consultant doctor, to allow Dr Hamilton to explain why he or my employer is preventing my return to work, and to explain what further reports in addition to the above would he normally require, if the above is not satisfactory to an employer.
I would like to appeal the above, following consultant doctor’s professional medical and legal advice. And will take further legal guidance.
I have requested advice from NIPSA, and advised trade union representative to notify you I whish [wish] to appeal decision.
I do not have access to council absence procedure (page 18 section 10.12) referred to in termination of contract letter, please forward copy of document, for reference with regard the above.
Yours sincerely
Neal Blaney”
(xxiii) The tribunal was also referred to the Social Security Agency assessment of the claimant for employment and support allowance which is dated 25 February 2013, which refers to the claimant’s view that, at that stage, his return to work was being blocked by Occupational Health and he was not being told why. It also records, that at that stage, he was not taking any medication. He was assessed by Social Security Agency as being capable of work and was refused employment and support allowance.
(xxiv) At the meeting held on 17 September 2013 the claimant referred to the above ESA assessment. Kieran Doherty was also aware that the claimant had attended a private psychiatrist but had not forwarded a copy of his medical opinion. Kieran Doherty requested him to forward a copy of this report to enable him to make an informed decision. The claimant was reluctant to forward a copy of the report as he claimed it contained third party information and he did not want it shown to his employer. The claimant claimed that this consultant psychiatrist, Dr Anderson, had no issue with his return to work and that Dr Hamilton could speak to him about the adjustments outlined in the Occupational Health Reports. The claimant mentioned that Dr Anderson could not supply him with a report without speaking first with Dr Hamilton. In this respect the claimant stated that he had emailed Dr Hamilton with Dr Anderson’s details on 16 September 2013.
(xxv) The tribunal is satisfied that Kieran Doherty carefully considered the adjustments recommended by Dr Hamilton to the claimant’s substantive post and David Robinson’s email of 15 to Lucille McElholm in respect of same. He also considered alternative options elsewhere within the Council as referred to previously and concluded that he had no other option other than to terminate the claimant’s contract of employment on the ground of his capability. Kieran Doherty did wait until the end of September before finalising his decision to terminate the claimant’s employment owing to the claimant’s reference to Dr Anderson and his report. It is evident to the tribunal that during this period Dr Hamilton made exhaustive efforts to contact Dr Anderson, but without success.
(xxvi) Dr Anderson eventually wrote to Kieran Doherty on 12 November 2013 (received 18 November 2013) stating that:-
[he] “can see no reason why Mr Blaney should not be able to attempt to return to his original employment if necessary on a phased basis. He himself is keen to do so and does not report any current problems with work colleagues. He is aware as you will be, all reasonable efforts should be made to accommodate him back at work and that he should not be discriminated against on the basis of his mental health difficulties as concerned (contained) in the Disability Discrimination Act. If he is ultimately unable to perform his work because of his mental health problems I would have thought that consideration should be given to ill-health retirement”.
(xxvii) The tribunal was shown Dr Hamilton’s hand written notes of a conversation he held with Dr Anderson on 20 November 2013. It was clear to the tribunal that Dr Anderson was not aware of the full extent of the claimant’s job and especially his contact with members of the public and professionals and the seriousness of any errors being made in terms of building safety. He was also not aware of the claimant’s paranoia about work colleagues and access to emails etc. He agreed with Dr Hamilton that the claimant was still not fit for the building control job. Dr Hamilton then emailed Anne Lennon of Human Resources as follows:-
“Anne
Following my last email, I would like to update you further.
I have spoken to Dr Anderson and he confirmed that he was not fully aware of the nature of Neal’s job and could understand why Neal was deemed unfit for work in the full role as a Building Control Officer. He was also unaware of the attempts made to try to allow Neal to return to work in a restricted role and to redeploy him.
Dr Anderson also confirmed that Neal’s mental health problems were ongoing.
With regard to Dr Grant’s letter, the reference to the ATOS assessment for ESA (employment support allowance) relates to their “all work test”, which means that the individual is assessed for fitness for “any” employment. Neal is fit for some types of work, and that is why we looked at redeployment options for him.
I hope this helps to clarify things further.
Regards
David”
(xxviii) The claimant’s GP, Dr Grant, also wrote to the Council on 12 November 2013 referring to the claimant having been assessed by ATOS as fit for work. He recommended that the claimant should be able to return to work if he wishes. However Dr Hamilton, in his evidence, made clear that the ATOS assessment did not take into consideration the claimant’s mental health status and expressed the view that there were lots of problems with the ATOS test.
(xxix) The claimant’s appeal hearing took place on 20 November 2013 before Roger Wilson, the respondent’s Town Clerk and Chief Executive from October 2008 to March 2014. It was clear to the tribunal that Mr Wilson had considerable sympathy for the claimant who stated at the appeal hearing that he was not requesting any adjustments from Dr Hamilton. The tribunal was referred to the minutes of the appeal hearing and, by Roger Wilson, in his witness statement, to Dr Anderson’s correspondence to the respondent of 12 November 2013 which Roger Wilson discussed with Dr Hamilton following the appeal hearing. Roger Wilson became aware of Dr Hamilton having contacted Dr Anderson and of the email previously referred to dated 22 November 2013 stating that Dr Anderson was not fully aware of the claimant’s job and could understand why he was deemed unfit for work. Dr Hamilton had also referred to Dr Grant’s correspondence of 12 November 2013. The reason for the claimant’s unsuccessful appeal is summarised in the outcome letter from Roger Wilson dated 26 November 2013 which reads as follows:-
“Dear Neal
Appeal Hearing – 20 November, 2013
I refer to the above appeal hearing that was held following the decision of Mr Doherty on 1 October, 2013 to terminate your employment on the grounds of capability.
The appeal was held in accordance with Council’s Absence procedure at 10.21 of the policy. You were entitled to be accompanied at the appeal but chose to proceed unaccompanied.
At the appeal hearing you were given an opportunity to outline the reasons for appealing Mr Doherty’s decision. Prior to the hearing I was presented with a copy of a letter from Dr Anderson, Consultant Psychiatrist and at the hearing you presented me with copy correspondence from your GP.
I would advise that following the appeal hearing, I met with Dr Hamilton, Council’s Occupational Health Physician to discuss his reports and also to seek his comments with regard to the correspondence referred to above. I can confirm that Dr Hamilton has now spoken with Dr Anderson and as a consequence his advice to Council has not changed.
Following consideration of the facts of this case and in particular the recent information presented I have reached my decision. Furthermore I am satisfied that Council has adhered to the relevant policies and procedures regarding this matter and as such I have decided to uphold the decision taken by Mr Doherty.
I am conscious that this decision will come as a disappointment to you, however, taking into account medical information and advice and considering operational requirements (including possible, suitable alternative employment). I believe this decision is in both your interests and that of the organisation.
I would like to thank you for your time spent working at Coleraine Borough Council and hope that in due course you are able to find employment in the future and that your health will improve.
Yours sincerely
Town Clerk and Chief Executive”
(xxx) The tribunal is satisfied that in its decision to dismiss the claimant, the respondent had established the true medical position (which had remained unchanged since Dr Hamilton’s last review on 12 June 2013) and that, in the overall circumstances, it was reasonable for the respondent not to wait beyond the end of September before terminating the claimant’s employment on 1 October 2013. In any event, in the process of the claimant’s appeal, the medical position, as established by Dr Hamilton, was essentially confirmed by Dr Anderson pursuant to his conversation with Dr Hamilton. Moreover, the respondent had engaged the claimant in full and lengthy consultation and had seriously addressed the issues of adjustments under the Act and suitable alternative employment in the context of incapability before terminating the claimant’s employment.
(xxxi) In the context of his disability discrimination claim, the claimant sought to rely on various comparators. One comparator, Sam McMullan, also a Building Control officer, and not deemed disabled under the Act, was off work for a period of time in 2012 after losing his licence which was an essential part of his job. He died in the summer of 2013. By that time he had obtained a driving licence and was engaged in an informal counselling process which was still ongoing at the time of his death. Adjustments had been made upon his return to work in terms of someone else driving him to and from inspections.
(xxxii) Paul McGurgan, another comparator relied on by the claimant, was a Litter Warden Enforcement Officer who had type 2 diabetes and was deemed disabled under the Act. He was off work for a period of time in 2011-12 and adjustments were made in terms of providing him with shoes to avoid the possibility of foot ulcers. He had been off work not owing to his disability but due to stress following allegations made by him against another member of staff which led to an investigation. He had returned to work afterwards and no adjustments were made after his return.
(xxxiii) Donald Kenny, was named as another comparator. He is still working for the respondent as a Building Control officer. He is not deemed disabled under the Act and no adjustments have been made in relation to him apart from an alteration in the reporting structure following a personality clash between himself and another member of staff. He had apparently been off work for a period of time due to stress in 2006-2007.
(xxxiv) The claimant consistently claimed that he had not been given proper advice regarding ill health retirement and sought to compare himself with Johnny Vance, Claire Miller and Collette Ward, all of whom had received ill-health retirement. However, as distinct from the claimant, they had taken the initiative and made the relevant application and been successful. In the claimant’s case, Dr Hamilton had indicated that he was unlikely to be successful in any such application and the claimant was aware of this. In her evidence to the tribunal, Sharon McQuillan made it clear that the claimant had spoken to her on several occasions about ill-health retirement and that he was aware of the need to take the initiative in any such direction in accordance with paragraphs 10.15-10.17 of the Sickness Absence Policy, a copy of which he possessed at least during the process leading to the termination of his employment and throughout the appeal stage. The tribunal is satisfied that the claimant was aware of the fact that the procedure was voluntary and is further satisfied that he had discussed the matter with the respondent’s payroll pensions manager, Sharon McQuillan and Alan Law of NIPSA. During the consultation process, the claimant was anxious to return to work and in the course of the appeal hearing on 20 November 2013 stated that he was not looking for any adjustments in order to return to work. He had not therefore taken the initiative towards making any application for ill-health retirement.
(xxxv) The tribunal is satisfied that the dismissal and appeal processes were procedurally and substantively fair and that the claimant was allowed ample opportunity to articulate his case.
The Law
5. (1) In relation to unfair dismissal the tribunal is satisfied that the position is adequately set out in paragraphs 3-25 of the respondent’s submissions annexed to this decision.
(2) 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.
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.
(3) 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”.
Disability-related discrimination is not alleged in this case.
(4) In the case of Tarbuck v Sainsburys
Supermarkets Ltd [2006] IRLR 664, EAT, it was held that while it
will always be good practice for the employer to consult, and it will
potentially jeopardise the employer’s legal position if it does not do so,
there is no separate and distinct duty on an employer to consult with a
disabled worker. The only question is, objectively, whether or not the
employer has complied with his obligations to make reasonable adjustments.
(5) 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 384ff in so far as relevant.
(6) 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 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 of 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) .…
(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”.
(iv) The Court of Appeal in the case of Newham Sixth Form College v Sanders (2014) EWCA Civ 734, confirmed the decision in Rowan and in the later case of ABS v Ashton (2011) ICR 632, EAT (where the important rider was added that the test remains an objective one, not dependent on the employers thought processes). In his judgement Lord Justice Laws stated in paragraph 14 of his judgement as follows:-
“In my judgement these three aspects of the case – nature and extent of the disadvantage, the employer’s knowledge of it and the reasonableness of the proposed adjustments – necessarily run together. An employer cannot, as it seems to me, make an objective assessment of the reasonableness of proposed adjustments unless he appreciates the nature and the extent of the substantial disadvantage imposed upon the employee by the PCP. Thus an adjustment to a working practice can only be categorised as reasonable or unreasonable in the light of a clear understanding as to the nature and extent of the disadvantage. Implicit in this is the proposition, perhaps obvious, that an adjustment will only be reasonable if it is, so to speak, tailored to the disadvantage in question; and the extent of the disadvantage is important since an adjustment which is either excessive or inadequate will not be reasonable.”
(v) The tribunal also had regard to the Code at Section 8.15 relating to managing disability or ill health and retention of disabled employees.
Paragraph 8.16 states, inter alia:-
“If there are no reasonable adjustments which would enable the disabled employee to continue in his or her present job, the employer must consider whether there are suitable alternative positions to which she could be redeployed”.
(7) (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 also alleging that he had been unfairly dismissed by the respondent under Articles 126-130 of the 1996 Order.
Burden of Proof
6. (i) Section 17A of the Act deals with the burden of proof.
(ii) The tribunal also considered the following authorities, McDonagh and Others v Hamilton Thom Trading As The Royal Hotel, Dungannon [2007] NICA, Madarassy v Nomur International Plc [2007] IRLR 246 (“Madarassy”), Laing v Manchester City Council [2006] IRLR 748 and Mohmed v West Coast Trains Ltd [2006] UK EAT 0682053008. It is clear from these authorities that in deciding whether a claimant has proved facts from which the tribunal could conclude in the absence of an adequate explanation that discrimination had occurred, the tribunal must consider evidence adduced by both the claimant and the respondent, putting to the one side the employer’s explanation for the treatment. As Lord Justice Mummery stated in Madarassy at paragraphs 56 and 57:-
“The Court in Igen v Wong expressly rejected the argument that it was sufficient for the complainant 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 a Tribunal “could conclude” that on the balance of probabilities the respondent had committed an unlawful act of discrimination.
“Could conclude” in s.63A(2) must mean that “a reasonable Tribunal could properly conclude” from all the evidence before it. This would include evidence adduced by the complainant in support of the allegations of sex discrimination, such as evidence of a difference in status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint. Subject only to the statutory “absence of an adequate explanation” at this stage ., the Tribunal would need to consider all the evidence relevant to the discrimination complaint; for example evidence as to whether the act complained of occurred at all; evidence as to the actual comparators relied on by the complainant to prove less favourable treatment; evidence as to whether the comparisons being made by the complaint were of like with like as required by s5(3) of the 1975 Act; and available evidence of the reasons for the differential treatment.”
(iii) The tribunal received valuable assistance from Mr Justice Elias’ judgement in the case of London Borough of Islington v Ladele & Liberty (EAT) [2009] IRLR 154, at paragraphs 40 and 41. These paragraphs as set out in full to give the full context of this part of his judgment.
“Whilst the basic principles are not difficult to state, there has been extensive case law seeking to assist tribunals in determining whether direct discrimination has occurred. The following propositions with respect to the concept of direct discrimination, potentially relevant to this case, seem to us to be justified by the authorities:
(1) In every case the tribunal has to determine the reason why the claimant was treated as he was. As Lord Nicholls put it in Nagarajan v London Regional Transport [1999] IRLR 572, 575 – ‘this is the crucial question’. He also observed that in most cases this will call for some consideration of the mental processes (conscious or sub-conscious) of the alleged discriminator.
(2) If the tribunal is satisfied that the prohibited ground is one of the reasons for the treatment, that is sufficient to establish discrimination. It need not be the only or even the main reason. It is sufficient that it is significant in the sense of being more than trivial: see the observations of Lord Nicholls in Nagarajan (p.576) as explained by Peter Gibson LJ in Igen v Wong [2005] IRLR 258, paragraph 37.
(3) As the courts have regularly recognised, direct evidence of discrimination is rare and tribunals frequently have to infer discrimination from all the material facts. The courts have adopted the two-stage test which reflects the requirements of the Burden of Proof Directive (97/80/EEC). These are set out in Igen v Wong. That case sets out guidelines in considerable detail, touching on numerous peripheral issues. Whilst accurate, the formulation there adopted perhaps suggests that the exercise is more complex than it really is. The essential guidelines can be simply stated and in truth do no more than reflect the common sense way in which courts would naturally approach an issue of proof of this nature. The first stage places a burden on the claimant to establish a prima facie case of discrimination:-
‘Where the applicant has proved facts from which inferences could be drawn that the employer has treated the applicant less favourably [on the prohibited ground], then the burden of proof moves to the employer.’
If the claimant proves such facts then the second stage is engaged. At that stage the burden shifts to the employer who can only discharge the burden by proving on the balance of probabilities that the treatment was not on the prohibited ground. If he fails to establish that, the tribunal must find that there is discrimination. (The English law in existence prior to the Burden of Proof Directive reflected these principles save that it laid down that where the prima facie case of discrimination was established it was open to a tribunal to infer that there was discrimination if the employer did not provide a satisfactory non-discriminatory explanation, whereas the Directive requires that such an inference must be made in those circumstances: see the judgment of Neill LJ in the Court of Appeal in King v The Great Britain-China Centre [1991] IRLR 513.)
(4) The explanation for the less favourable treatment does not have to be a reasonable one; it may be that the employer has treated the claimant unreasonably. That is a frequent occurrence quite irrespective of the race, sex, religion or sexual orientation of the employee. So the mere fact that the claimant is treated unreasonably does not suffice to justify an inference of unlawful discrimination to satisfy stage one. As Lord Browne-Wilkinson pointed out in Zafar v Glasgow City Council [1997] IRLR 229:-
‘it cannot be inferred, let alone presumed, only from the fact that an employer has acted unreasonably towards one employee that he would have acted reasonably if he had been dealing with another in the same circumstances.’
Of course, in the circumstances of a particular case unreasonable treatment may be evidence of discrimination such as to engage stage two and call for an explanation: see the judgment of Peter Gibson LJ in Bahl v Law Society [2004] IRLR 799, paragraphs 100, 101 and if the employer fails to provide a non-discrimination explanation for the unreasonable treatment, then the inference of discrimination must be drawn. As Peter Gibson LJ pointed out, the inference is then drawn not from the unreasonable treatment itself – or at least not simply from that fact – but from the failure to provide a non-discriminatory explanation for it. But if the employer shows that the reason for the less favourable treatment has nothing to do with the prohibited ground, that discharges the burden at the second stage, however unreasonable the treatment.
(5) It is not necessary in every case for a tribunal to go through the two-stage procedure. In some cases it may be appropriate for the tribunal simply to focus on the reason given by the employer and if it is satisfied that this discloses no discrimination, then it need not go through the exercise of considering whether the other evidence, absent the explanation, would have been capable of amounting to a prima facie case under stage one of the Igen test: see the decision of the Court of Appeal in Brown v Croydon LBC [2007] IRLR 259 paragraphs 28-39. The employee is not prejudiced by that approach because in effect the tribunal is acting on the assumption that even if the first hurdle has been crossed by the employee, the case fails because the employer has provided a convincing non-discriminatory explanation for the less favourable treatment.
(6) It is incumbent on a tribunal which seeks to infer (or indeed to decline to infer) discrimination from the surrounding facts to set out in some detail what these relevant factors are: see the observations of Sedley LJ in Anya v University of Oxford [2001] IRLR 377 esp paragraph 10.
(7) As we have said, it is implicit in the concept of discrimination that the claimant is treated differently than the statutory comparator is or would be treated. The proper approach to the evidence of how comparators may be used was succinctly summarised by Lord Hoffmann in Watt (formerly Carter) v Ahsan [2008] IRLR 243, a case of direct race discrimination by the Labour Party. Lord Hoffmann summarised the position as follows (paragraphs 36-37):-
‘36. The discrimination … is defined … as treating someone on racial grounds “less favourably than he treats or would treat other persons”. The meaning of these apparently simple words was considered by the House in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285. Nothing has been said in this appeal to cast any doubt upon the principles there stated by the House, but the case produced five lengthy speeches and it may be useful to summarise:-
(1) The test for discrimination involves a comparison between the treatment of the complainant and another person (the “statutory comparator”) actual or hypothetical, who is not of the same sex or racial group, as the case may be.
(2) The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from, those of the complainant …
(3) The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a tribunal may infer how a hypothetical statutory comparator would have been treated: see Lord Scott of Foscote in Shamoon at paragraph 109 and Lord Rodger of Earlsferry at paragraph 143. This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the “evidential comparator”) to those of the complainant and all the other evidence in the case.
37. It is probably uncommon to find a real person who qualifies … as a statutory comparator. Lord Rodger’s example at paragraph 139 of Shamoon of the two employees with similar disciplinary records who are found drinking together in working time has a factual simplicity which may be rare in ordinary life. At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are “materially different” is often likely to be disputed. In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator. If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator.’
The logic of Lord Hoffmann’s analysis is that if the tribunal is able to conclude that the respondent would not have treated the comparator more favourably, then again it is unnecessary to determine what are the characteristics of the statutory comparator. This chimes with Lord Nicholls’ observations in Shamoon to the effect that the question whether the claimant has received less favourable treatment is often inextricably linked with the question why the claimant was treated as he was. Accordingly:-
“employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was’ (paragraph 10).
This approach is also consistent with the proposition in point (5) above. The construction of the statutory comparator has to be identified at the first stage of the Igen principles. But it may not be necessary to engage with the first stage at all”.
(iv) 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”.
Again, at paragraph 28 he states in the context of the facts of that particular case, as follows:-
“The question in the present case however is not one to be determined by reference to the principles of Wednesbury unreasonabless but by reference to the question of whether one could properly infer that the Council was motivated by a sexually discriminatory intention. Even if an employer could rationally reach the decision which it did in this case, it would nevertheless be liable for unlawful sex discrimination if it was truly motivated by a discriminatory intention. However, having regard to the Council’s margin of appreciation of the circumstances the fact that the decision-making could not be found to be irrational or perverse must be very relevant in deciding whether there was evidence from which it could properly be inferred that the decision making in this instance was motivated by an improper sexually discriminatory intent. The differences between the cases of Mr Nelson and Ms O’Donnell were such that the employer Council could rationally and sensibly have concluded that they were not in a comparable position demanding equality of disciplinary measures. That is a strong factor tending to point away from a sexually discriminatory intent. Once one recognises that there were sufficient differences between the two cases that could sensibly lead to a difference of treatment it is not possible to conclude in the absence of other evidence pointing to gender based decision-making that an inference or presumption of sexual discrimination should be drawn because of the disparate treatment of Ms O’Donnell and Mr Nelson”.
(v) 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”.
(vi) Regarding the duty to make reasonable adjustments the tribunal considered the case of Latif v Project Management Institute [2007] IRLR 579. In that case the EAT held that a claimant must prove both that the duty has arisen, and that there are facts from which it could reasonably be inferred, absent explanation, that it has been breached before the burden will shift and require the respondent to prove it complied with the duty. There is no requirement for claimants to suggest any specific reasonable adjustments at the time of the alleged failure to comply with the duty. It is permissible (subject to the tribunal exercising appropriate control to avoid injustice) for claimants to propose reasonable adjustments on which they wished to rely at any time up to and including the tribunal hearing itself.
Submissions
7. The tribunal carefully considered the written submissions submitted by both parties. The respondent’s submissions are annexed to this decision. For reasons explained at the hearing, the claimant’s written submissions are not annexed. However, these submissions together with the further brief oral submissions from the claimant and from the respondent’s counsel were carefully considered by the tribunal.
Conclusions
8. The tribunal, having carefully considered the evidence together with the submissions, and having applied the principles of law to the findings of fact, concludes as follows:-
(1) The tribunal is satisfied that the claimant has proved that a duty to make reasonable adjustments had arisen. However the tribunal is not satisfied that the claimant has proved facts from which it could reasonably be inferred, absent explanation, that the duty has been breached, and, therefore, the burden of proof does not shift to the respondent so as to require it to prove that it complied with the duty. Furthermore, in terms of the comparators, only Paul McGurgan was assessed as being covered by the Act. Adjustments were made to provide him with special shoes to avoid foot ulcers. A comparator must be in the same or not materially different circumstances to the claimant in order to be a valid comparator. The tribunal is satisfied that Paul McGurgan is not therefore a valid comparator.
(2) In relation to the claim of direct disability discrimination, the tribunal is not satisfied that the claimant has proved facts from which the tribunal could conclude in the absence of an adequate explanation that the claimant had been treated less favourably on the ground of disability, and therefore the burden does not shift to the respondent to prove on the balance of probabilities that the alleged detriment was not on the prohibited ground of disability. It is clear to the tribunal, that the comparators relied on by the claimant are not in the same or not materially different circumstances to the claimant and are therefore not valid comparators. This extends to the comparators relied on in the context of the claimant’s ill health retirement, referred to in paragraph 4 (xxxiv) of the findings of fact. The tribunal is also satisfied that the reason for the claimant’s treatment was because of his absence and incapability to do his job, and not on the ground of his disability.
(3) Paragraph 8.16 of the Code states:-
“If there are no reasonable adjustments which would enable the disabled employee to continue in his or her present job, the employer must consider whether there are suitable alternative positions to which she could be redeployed”.
In this case the claimant was also relying on the provisions of Articles 126 of the 1996 Order (his right not to be unfairly dismissed), 127, (circumstances in which an employee is dismissed) and 130, (fairness), to establish unfair dismissal. “Capability”, in Article 130(3), “in relation to an employee, means his capability assessed by reference to skill, aptitude, health or any other physical or mental quality”. The tribunal is satisfied that the reason for the claimant’s dismissal related to his capability for performing work of the kind which he was employed by the employer to do and that the dismissal was fair in all the circumstances of the case, as further set out in paragraph 4 (xxx) of the findings of fact.
(4) The tribunal has considerable sympathy for the claimant in his personal circumstances. Nevertheless, it finds itself unable to uphold his claims and, accordingly all claims are dismissed.
Employment Judge:
Date and place of hearing: 1, 2, 3, 4 September 2014, Belfast.
Date decision recorded in register and issued to parties:
