Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS: 1050/14

2443/14

 

 

 

CLAIMANT: Rebecca Downie

 

 

RESPONDENTS: 1. Department for Social Development

2. Jenny Mullan

3. Deborah Daly

4. Gary Craig

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant's claim for direct disability discrimination is dismissed; that the first respondent had failed to make reasonable adjustments for the claimant and that the first respondent has victimised the claimant pursuant to Section 55 of the Disability Discrimination Act as amended, and the tribunal awards the claimant compensation of £10,000.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Greene

 

Members: Mr B Hanna

Mr H Stevenson

 

Appearances:

 

The claimant was represented by Mr G Grainger, of counsel, instructed by Worthingtons Solicitors.

 

The respondents were represented by Mr J Kennedy, of counsel, instructed by the Departmental Solicitors Office.

 

 

SOURCES OF EVIDENCE

 

1.             For the claimant the tribunal heard from the claimant herself, Aidan Molyneaux and Pauline Scott. On behalf of the respondents the tribunal heard from Deborah Daly, Jenny Mullan, Trevor Patterson, Helen Campbell, Gary Craig and Barry Mulligan. The tribunal also received eight bundles of documents comprising 472 pages; written submissions; and a number of legal authorities.

 

 

THE CLAIM AND DEFENCE

 

2.             The claimant claimed that she had been discriminated against on the grounds of her disability; that the respondents had failed to make reasonable adjustments for her as a disabled person; and that she had suffered victimisation contrary to the Disability Discrimination Act 1996, as amended. The respondents disputed the claimant's claims in their entirety.

 

THE ISSUES

 

3. (1) The agreed issues for determination were as follows:-

 

Legal Issues

 

(i)            Whether or not the claimant was treated less favourably on the grounds of her disability contrary to Article 3A(5) of the Disability Discrimination Act 1995?

 

(a) And, was the comparator treated differently or would have been?

 

(ii) Whether or not the respondents failed to make reasonable adjustments contrary to Article 3A(2) of the Disability Discrimination Act 1995?

 

(a)           And, was the comparator treated differently or would he/she have been?

 

(b) And, can the respondents justify any failure?

 

(iii) Was the claimant discriminated against by away of victimisation contrary to the Disability Discrimination Act 1995 as amended?

 

Factual Issues




(iv) What is the first respondent's policy on inefficiency?

 

(v) What, if any, are the respondents' procedures when considering when to issue warnings where a bereavement has occurred when the decision to issue occurred before the bereavement?

 

(vi) What is the claimant's absence record?

 

(vii) What period(s) of absence were taken into account when considering inefficiency action?

 

(viii) What factors were taken into account when deciding whether or not to issue a written warning, including, if relevant, the claimant's anxiety?

 

 

(ix) Why was the claimant issued with a written warning?

 

(x) What factors were taken into account when deciding upon the outcome of the appeal, including, if relevant, the claimant's anxiety?

 

(xi) Why was the appeal not upheld?

 

(xii) What are the circumstances of the relevant comparator(s) for disability discrimination?

 

(xiii) What adjustments were made, if any?

 

(a) And, were these adjustments reasonable and sufficient?

 

(xiv) What were the reasons for the claimant's treatment so far as it relates to justifying matters which could otherwise constitute discrimination as applicable?

 

(xv) What loss or injury to feelings has the claimant sustained?

 

(xvi) What was the effect of any unlawful discrimination upon the outcome of the processes about which complaints have been made?

 

Remedy

 

(xvii) If the claimant has been discriminated against what award should be made for:-

 

(a)           Injury to feelings, and;

 

(b) Loss.

 

(xviii) Whether the exchanges between the claimant and the fourth respondent, Gary Craig, on 5 September 2014 constituted victimisation of the claimant by reason that she had done a protected act, namely by making a complaint of unlawful discrimination and by presenting a claim to the tribunal under the provisions of the Disability Discrimination Act 1995 as amended?

 

(xix) If this claim is upheld to what remedy is the claimant entitled?

 

(2) It is accepted by the respondents that the claimant is a disabled person for the purposes of the Disability Discrimination Act 1995 as amended.

 

FINDINGS OF FACT

 

4.             (1) The claimant began working for the Department of Social Development (DSD) (first respondent) on 7 July 2008 as an administrative officer. Apart from eight weeks from July to September 2014, within the Human Resources Directors' office, she has worked exclusively within the Equal Opportunities Unit in the Human Resources Division. The DSD (first respondent) is the single biggest department in the Northern Ireland Civil Service with almost 25% of the total civil service staff.

 

(2)           Jenny Mullan (second respondent) is an EO1 within DSD (first respondent). Since August 2013 she has managed sickness absences within the DSD's (first respondent) core departments and has made decisions on appeals from written warnings and final written warnings. From 27 August to 15 December 2013 she managed the claimant's sickness absence.

 

(3)           Deborah Daly (third respondent) is an EO2 within DSD (first respondent) and has worked in the Attendance Management Unit (AMU) since 2000. Her role is to apply the Inefficiency Sickness Absence Policy and, in circumstances where review trigger points have been reached under the policy as a result of sickness absence, to decide if inefficiency action is appropriate.

 

(4)           Gary Craig (fourth respondent) is a staff officer within the DSD's (first respondent) Human Resources Division. He was the claimant's line manager from 1 August to 5 September 2014.

 

(5)           It is common case that the claimant is an excellent worker and she has on a number of occasions acted up as EO2 and EO1.

 

(6)           From childhood the claimant has suffered from an active and severe form of Crohn's disease. The disease is incurable and the claimant suffers from periodic flare-ups. Some of the prescribed medication can leave the claimant susceptible to other infections. The DSD (first respondent) and the AMU are aware of her condition.

 

(7)           From May 2009 the DSD (first respondent) had put in place for the claimant the following three reasonable adjustments;-

 

(a)        that she is seated in close proximity to the toilets, and

 

(b)        that she have additional time off work to attend doctor's appointments when necessary, and

 

(c)        that she is restricted from lifting excessively heavy loads due to previous abdominal surgeries.

 

In November 2011 as a reasonable adjustment a written warning was not issued by the DSD (first respondent).

 

(8)           In 2009 the claimant was off work for gastrointestinal problems for 42 days on two occasions. She was off work for gastrointestinal problems for 20 days on two occasions in 2011 for which Deborah Daly (third respondent) decided that she would not issue to the claimant a written warning by way of a reasonable adjustment and no inefficiency action was taken. From 27 February to 1 March 2013 she was off work for gastrointestinal problems for three days but no inefficiency action was taken against her by way of a reasonable adjustment. This latter absence is not the subject of the inefficiency warning issued to her in 2014 and which gave rise to this claim.

 

(9)           From May 2013 the claimant was experiencing a flare-up in her Crohn's disease which was being treated. However in late August 2013 the claimant required emergency surgery following a serious infection, believed to have been an effect of her Crohn's disease. Subsequent to her surgery the claimant required to take strong painkilling medication and antibiotics. Her injections for the Crohn's disease flare-up were doubled.

 

(10)        The painkillers being taken by the claimant made her feel very sick and drowsy causing her upset and to experience panic attack like symptoms.

 

(11)        In September/October 2013 the claimant's GP, Dr McGirr, diagnosed her as suffering from anxiety. Dr McGirr prescribed medication and arranged for counselling. Anxiety can and did have an adverse effect on the claimant's Crohn's disease. The claimant was off work for gastrointestinal problems for 80 days following the surgery from 27 August to 16 December 2013.

 

(12)        The claimant kept her line manager, Aidan Molyneaux, up to date on her state of health on a regular basis and attended appointments with the Occupational Health Service (OHS) on 8 October and 2 December 2013. She informed OHS of her anxiety diagnosis which they characterised as a secondary condition. At the appointment on 2 December 2013 she also informed OHS of her father's deteriorating health from 31 October 2013.

 

(13)        Mr Molyneaux passed the details of the claimant's further medical diagnosis of anxiety to Jenny Mullan (second respondent) in AMU. On 14 November he contacted her again to advise her of the illness of the claimant's father and his belief that this was likely to set back the claimant's health.

 

(14)        On 31 October 2013 the claimant's father became seriously ill with acute pancreatitis. His prognosis was poor. The claimant had a very close relationship with her father and as his only child was effectively his next of kin following his divorce from the claimant's mother. The claimant became very anxious and distressed culminating in a worsening of her Crohn's disease.

 

(15)        By the time of the OHS appointment on 2 December 2013 the claimant's father's condition had stabilised, her own health had improved and she agreed to a phased return to work from 18 December 2013 with the support of her line manager.

 

(16)        Around this time the claimant was being considered for inefficiency action and Jenny Mullan (second respondent) had prepared an internal submission that dismissal needed to be considered.

 

(17)        The DSD (first respondent) has an Inefficiency Sickness Absence Policy with the objective of reducing sickness absence and managing efficiency and attendance. The policy provides for the administration of escalating steps from a written warning, to a final written warning and then to dismissal where an employee's attendance causes concern and does not improve in a way that is satisfactory to the DSD (first respondent).

 

(18)        The stated aim of the policy is;-

 

"... to promote regular attendance at work, minimise absence across the service and to provide a framework within which sickness absence can be effectively managed."

 

(19)        Among the other provisions of the policy relevant to this claim are;-

 

(a)        The role and responsibility of Departmental HR and Line Management in the management of sickness absence can vary with some Departments delegating much of the day-to-day management and decision making in sickness cases to line management, while others retain much of the responsibility within Departmental HR. While this policy has been designed to accommodate these different approaches, Departmental HR will retain a key management role. It is therefore important to ensure regular communication is maintained by Line Management and Departmental HR in the management of individual sickness absence cases (paragraph 2.2).

 

(b) Your line manager has a key role to play in managing sickness absence and early and positive intervention is very important. Your line manager will conduct a Return to Work Interview for each absence at which point your level and/or pattern of absence will be reviewed. Your line manager may, if necessary, advise you that your attendance levels are giving cause for concern and will make you aware of the implications of unsatisfactory attendance, including the possibility of formal inefficiency action which could lead to a Written Warning and ultimately dismissal. A record of each Return to Work Interview will be prepared by your line manager (paragraph 3.1).

 

(c) Every effort will be made to give you reasonable and appropriate support and assistance to improve your level of attendance. If it is thought that your sickness absence is due to underlying health reason, you will be referred to the Occupational Health Service (OHS). You may also wish to consult your GP. You must ensure that your line management is aware of any relevant factors, medical or non-medical, and whether these are likely to impact on your ability to attend work on a regular basis (paragraph 3.2).

 

(d) Review points are used to identify the level and pattern of sickness absence that require closer examination. The Review points are four occasions or 10 working days in a rolling 12 month period (paragraph 4.1).

 

(e) Should your level of a sickness reach a Review point, Departmental HR and/or your line management will assess what action, if any, might be required. In so doing, they will consider a range of factors such as those listed below:-

 

 

·          Frequency;

 

·          Pattern of absences;

 

·          Prior sickness absence record;

 

·          Relevant information contained in Return to Work records; and

 

·          Any relevant circumstances highlighted by you or your line management.

This is not an exhaustive list and there may be other factors that will influence whether formal inefficiency action is appropriate (paragraph 4.3).

 

(f) Departmental HR and/or line management, when reviewing your attendance record, may decide that formal inefficiency action is not required and you will be advised accordingly (paragraph 4.5).

 

(g) At the meeting [to consider efficiency action] you will be given an opportunity to explain any circumstances which might be contributing to your level of sickness absence, or any other relevant information which you feel should be taken into account. If, during the meeting, information about a medical condition is presented, or if you or your Departmental HR or line management believe that a referral to OHS may be necessary, a decision on inefficiency action may be deferred pending the outcome of the referral (paragraph 4.9).

 

(h) If following a meeting it is decided to proceed with formal inefficiency action, you will be issued with a Written Warning (paragraph 5.2).

 

(i) The Written Warning will remain valid for two years and your level of attendance will continue to be monitored. If at any time during this warning period your level of sickness absence does not improve to a level acceptable to your Department, a Final Written Warning will be considered (paragraph 5.4).

 

(j) Where you have a valid Written Warning and your level of sickness absence has not improved to an acceptable level, Departmental HR will consult with line management and consider if it is appropriate to move to the Final Written Warning stage and will invite you to a meeting in line with the procedures set out above at paragraph 4.6 to 4.11 (paragraph 5.6).

 

(k) The Final Written Warning will remain valid for two years and your level of attendance will continue to be monitored. If at any time during the warning period your level of sickness absence does not improve to a level acceptable to your Departmental HR, dismissal action will be considered (paragraph 5.9).

 

(l) Where the level of sickness absence has not shown a significant and sustained improvement, Departmental HR will consider dismissal. Departmental HR will write to you and invite you to a meeting, the purpose of which will be to consider dismissal (paragraph 5.12).

 

(m) If following the pre-dismissal meeting and following appropriate consultation it is decided that the level of sickness absence can no longer be sustained, Departmental HR will write to you and confirm the decision to dismiss you on the grounds of inefficiency (paragraph 5.13).

 

(n) Early intervention is key to the successful management of sickness absence cases. Referral to the OHS is an important intervention and can be made at any time where Departmental HR or line management considers it appropriate. All absences of 20 working days or more must be reviewed with a review to referral (paragraph 7.1).

 

(o) Departmental HR may decide to refer you to the OHS in order to obtain advice on the following:-

 

·          any medical condition affecting your performance or attendance at work;

 

·          whether a definitive return to work date can be given (and if not, an indication of likely timescale for recovery and return to work);

 

·          whether you are currently fit to carry out the duties of your grade;

 

·          whether there are any adjustments to the work tasks or environment that would help facilitate your rehabilitation or an early return to work, and the likely duration of any adjustments;

 

·          whether your health problem is likely to recur and/or affect future attendance;

 

·          other issues specific to your individual case;

 

·          where appropriate, whether the criteria for early retirement on medical grounds are satisfied (paragraph 7.2).

 

(p) Where a Written Warning or a Final Written Warning is issued, you will have the right to lodge an internal appeal against the decision. The appeal must be submitted within 10 working days from the date of the warning letter. Out of time appeals will not be accepted unless Departmental HR or line management are satisfied as to the reasons for the late appeal (paragraph 8.1).

 

(20)        Prior to introducing this policy in 2009 the former policy for managing sickness absence did not provide a formal right of appeal. It appears that a practice developed outside of the formal policy whereby decisions to issue warnings for bad attendance could be rescinded where there were mitigating factors. It further appears that with the introduction of the new policy, with its right of appeal, that this practice ceased.

 

(21)        The claimant met with her line manager, Aidan Molyneaux, on 13 January 2014, pursuant to the Inefficiency Sickness Absence Policy, as she had been absent from work for 80 working days. The purpose of the meeting was in part the consideration as to whether inefficiency action would be considered for the claimant arising from her absence from work. In the course of the meeting Mr Molyneaux drew up a detailed account of the claimant's family circumstances and health issues. Mr Molyneaux included the following comment in his report;-

 

"... In my opinion, Rebecca [the claimant] has worked throughout with tremendous courage, as mentioned above her immune system is extremely low, meaning she is susceptible to any type of infection, and I have marvelled on many occasions how Rebecca has performed her work duties during this period. As a result of her ongoing condition, I can fully understand how anxiety is a factor. With the current situation with her father in hospital (ICU) since 31 October 2013, this has added considerable 'fuel to the fire' and I would not like to consider the impact a written warning could have on Rebecca's health."

 

(22)        As part of the return to work documentary template Mr Molyneaux mentioned in his report; that he was concerned about the effect her absence was having on the office as other members of staff had to cover her work; that no matter how genuine or unavoidable her absence was that the DSD (first respondent) might have to consider inefficiency action which could ultimately lead to dismissal; and that he would pass the report, including his comments to Deborah Daly (third respondent) of AMU, for her consideration.

 

(23)        The report of Mr Molyneaux, following her return to work interview, was then considered by Deborah Daly (third respondent) EO2 within AMU. Deborah Daly considered the report in accordance with the Inefficiency Sickness Absence Policy, the HR Handbook and "Disability discrimination law in Northern Ireland - a short guide published by the Equality Commission of April 2011".

 

(24)        Deborah Daly (third respondent) accepted that it was part of her duty not to do anything that would make it more difficult for an officer to return to work. Before arriving at her conclusion she decided that it was not necessary to seek an OHS report and that there was not a need for any other reasonable adjustments to be put in place.

 

(25)        She concluded on 3 February 2014 that a written warning should be issued to the claimant for inefficiency despite being aware that Mr Molyneaux believed that a written warning would not improve her attendance but in fact have the opposite effect. She explained to the tribunal that the claimant's length of absence from work was the factor that probably resulted in the issuing of a written warning. She further explained that individual circumstances can be taken into account but the inefficiency policy did not permit the trigger points for causing a review to be varied as a reasonable adjustment. She maintained that Mr Molyneaux's comments had been taken into account.

 

(26)        In the first week in February 2014 the claimant's father's health deteriorated and she successfully applied for five days leave. On 8 February 2014 the claimant had to make the agonising decision of discontinuing life support to her father as his organs were shutting down. The claimant's father died the same day. The claimant found this very distressing.

 

(27)        In and about February 2014 Pauline Scott was the acting staff officer and the claimant was a member of her team. Pauline Scott was aware the claimant had been off work and that AMU was considering issuing the claimant with a written warning. She was advised that the claimant's father had died on
8 February 2014.

 

(28)        Deborah Daly (third respondent) (AMU) informed Aidan Molyneux on 10 February 2014 that a written warning would be issued to the claimant. Mr Molyneaux was not consulted at any time about the issuing of a written warning. However he advised Deborah Daly (third respondent) of the death of the claimant's father and his belief that to issue a warning was insensitive.

 

(29)        Mr Molyneaux also contacted Trevor Patterson, a staff officer in AMU. He informed him of the opinion that he had expressed to Deborah Daly (third respondent) and requested that the written warning would be rescinded as he believed the issuing of a written warning against the claimant would push her over the edge. Mr Patterson replied that the warning would remain in place and that the claimant had the opportunity to appeal the decision to issue the written warning.

 

(30)        The Inefficiency Sickness Absence Policy requires that an appeal be made within 10 working days from the date of issue of the warning, 10 February 2014. However AMU decided to accept an appeal from the claimant within 10 working days from receipt of the letter issuing the written warning.

 

(31)        Mr Molyneaux believed that given that the claimant was suffering from an incurable disease which had been exacerbated by the serious health problems of her father that the last thing the claimant needed was to receive a written warning. On 12 February 2014 Deborah Daly (third respondent) sent a copy to Pauline Scott of the written warning letter of 10 February 2014 that was to be issued to the claimant.

 

(32)        Pauline Scott then arranged to meet Deborah Daly (third respondent) on 18 February 2014 when she asked her if the written warning could be rescinded in light of the death of the claimant's father. Deborah Daly informed her that at the time of issuing the written warning she had not been aware of the death of the claimant's father and that if she had been aware of his death she would not have issued the written warning. Deborah Daly undertook to speak to her staff officer, Trevor Patterson or Eleanor Cusick, her deputy principal in AMU to see if the written warning could be rescinded.

 

(33)        Pauline Scott thought Deborah Daly (third respondent) was sympathetic to the claimant's circumstances and had a positive feeling that the written warning would be rescinded. When Pauline Scott had been working in AMU she had personally rescinded a small number of written warnings by reason of mitigating factors. She was also aware that others had done likewise.

 

(34)        Deborah Daly (third respondent) informed Pauline Scott on 19 February 2014 that she had spoken to Eleanor Cusick (AMU) and had been informed that the written warning was to stay in place.

 

(35)        On the same day Pauline Scott spoke to Terry McKeown, acting grade 7 Employee Relations Unit, and stated to him that in her opinion it was inappropriate to issue the written warning to the claimant given her circumstances. Terry McKeown undertook to raise the matter with Eleanor Cusick or Barry Mulligan, (grade 7 AMU)

 

(36)        The claimant's line manager, Aidan Molyneaux, was sympathetic to the claimant's situation. She was granted a week of special leave and this was followed by a week of self-certified leave. She attended with her GP on 24 February 2014 and although the GP wished to provide a sick certificate for six weeks by reason of her condition she only took one week on sick-certified leave as she was under scrutiny from work by reason of her attendance and in addition did not think being at home would benefit her mental state.

 

(37)        On 3 March 2014 the claimant returned to work. She had a return to work interview on 4 March 2014 conducted by Pauline Scott as her line manager was on leave. Mrs Scott, not having received any change to the instruction to issue a written warning despite her representations, informed the claimant that she had been instructed by AMU to issue her with a written warning, dated 10 February 2014, by reason of her absence from work for 80 working days up to 16 December 2013. The claimant became very upset and
Mrs Scott advised her that she could go home immediately. She met up with her fiancé and spent the time going home on the train in tears.

 

(38)        The decision to issue the claimant with a written warning had been taken by Deborah Daly (third respondent). In her decision she concluded;-

 

"Therefore, on taking all available information into account, I accept the officer has been through a very difficult time with the flare up of her medical condition and her father's illness and I in no way doubt the genuineness of her absences. However, while I have taken this into account I cannot ignore that this was a very lengthy absence which seriously breached a review point. I must also take into account that while the officer's condition would fall within the scope of the Disability Discrimination Act, adjustments have previously been put in place to help her manage her condition and as a reasonable adjustment a Written Warning was not issued when considered in 2011. Therefore, on taking all factors into account I feel that a Written Warning should now be issued."

 

Beyond listing factors to which she had regard Deborah Daly (third respondent) has not explained why length of absence, having had reasonable adjustments made in the past including non-issue of a written warning was crucial to the issue of a written warning to the claimant. Neither has Deborah Daly made any reference in her decision to having regard to any of the comments of the claimant's line manager, Aidan Molyneaux, particularly on the consequences of receiving a written warning.

 

(39)        The claimant had to request a half day's leave on 6 March 2014. On 20 March 2014 her GP increased her medication for anxiety and she was referred for counselling for stress by reason of her family situation, work and health issues.

 

(40)        The claimant was disgusted that the DSD (first respondent) thought it appropriate to issue her with a written warning as it knew she was suffering from Crohn's disease and anxiety which had been exacerbated by the death of her father. She believed the DSD (first respondent) knew the reasons for her absence and that she was vulnerable and that it had not given consideration or re-consideration to the reasonableness of issuing the written warning.

 

(41)        On 6 March 2014 the claimant appealed the decision to issue the written warning to her on the grounds that (a) given that her absence arose from a chronic medical condition the decision sheet did not mention that Deborah Daly (third respondent) had considered fully her disability of Crohn's disease under the Disability Discrimination Act, and (b) that she disputed that Deborah Daly (third respondent) had taken into account the detrimental effect anxiety and stress had on her health and medical condition as set out in the summary of her meeting with her line manager on 13 January 2013, and (c) that the timing of the written warning was insensitive given that it was issued on her second day back at work after her father's death. She subsequently advised Jenny Mullan (second respondent) from AMU, that a further face to face meeting would be too stressful and asked to submit her appeal points in writing, to which Mrs Mullan (second respondent) agreed.

 

(42)        On 26 March 2014 the claimant submitted her written appeal. She followed that up with a written submission of 8 April 2014 which included a memo from Aidan Molyneaux, her line manager, fully endorsing her appeal, and that due to the exceptional circumstances of the claimant's position he asked that the written warning should be rescinded immediately. In his memo he repeated, almost word for word a paragraph that was in his report of the meeting of 13 January 2014 and is set out above at paragraph 4(21). The claimant also included a letter of support from her GP.

 

(43)        Though Jenny Mullan (second respondent) told the tribunal that she took
Mr Molyneaux's comments and the report from the GP into account there is no reference to either in her decision under "Details of additional information to be taken into account" or in the "Appeal Decision" itself. Despite telling the tribunal that a reasonable adjustment could have been made not to issue the written warning or to rescind it on appeal and that she took all the information into account there is not anything in the decision to suggest that Mrs Mullan considered whether, as a reasonable adjustment, the written warning should not have been given at all or should have been rescinded on appeal.

 

(44)        Under the appeal procedure Mrs Mullan (second respondent) could confirm or set aside the written warning. Though the Inefficiency Sickness Absence Policy states that a decision will normally be issued within 15 working days (paragraph 8.5) the decision, taken on 29 April 2014, was not issued until 28 May 2014, some nine weeks after the appeal was lodged and over seven weeks after she lodged her written submission. In her decision Mrs Mullan rejected the claimant's appeal. Given that the claimant was suffering from anxiety and that awaiting the outcome of the appeal added to that anxiety the claimant thought it inconsiderate that Mrs Mullan did not offer any explanation for the delay.

 

(45)        In her decision letter Mrs Mullan (second respondent) stated,

 

"... due to the length of the absence I have decided to confirm the original decision to issue a written warning."

 

This caused extreme upset to the claimant as she had become aware of another member of staff within the DSD (first respondent) who was off for a longer time due to work related stress and who, she believed, had not been issued with a warning. By means of discovery the claimant has become aware of others with longer absence than her who have not received warnings.

 

(46)        The claimant believes that by reason of her disabilities and her personal family circumstances that the DSD (first respondent) should have made a reasonable adjustment either not to issue the warning in the first place or to have rescinded the warning.

 

(47)        By letter of 29 May 2014 Jenny Mullan (second respondent) informed the claimant that her further absence on one occasion for 10 days since the date she was issued with a written warning, 10 February 2014, had triggered a review of her absence under the Inefficiency Sickness Absence Policy. She stated that having considered the information available to her that formal inefficiency action would not be progressed against her on that occasion.

 

(48)        Linda Houston had management responsibility for the claimant from 16 December 2013. She met with the claimant in late May or early June 2014 following the claimant's unsuccessful appeal against the written warning for inefficiency. She found the claimant very distraught about the outcome of the appeal. She was concerned about the impact the written warning was having on her.

 

(49)        Shortly after meeting with the claimant Linda Houston spoke to Helen Campbell, who was Assistant Human Resources Director with responsibility, inter alia, for attendance management, to ask if the written warning could be removed as the claimant was in a terrible state. She further indicated to Mrs Campbell her view that she had been told that had Deborah Daly (third respondent) known that the claimant's father had died that she would not have given the written warning which suggested that there was discretion to remove the written warning. She also intimated that she found it difficult to reconcile how the claimant got a written warning and others within the DSD (first respondent) did not and that there appeared to be a lack of consistency in the awarding of written warnings for inefficiency. Mrs Campbell's response was that, although she was sympathetic about the claimant's case that she could not interfere with the running of AMU. Linda Houston asked Helen Campbell to speak to Barry Mulligan head of AMU and she agreed to do so.

 

(50)        Linda Houston also spoke to Terry McKeown, her line manager, about the claimant's situation. They both agreed to speak to Barry Mulligan about the matter. Linda Houston repeated her concerns to Barry Mulligan. Mr Mulligan's view was that the warning had been issued in line with civil service procedures.

 

(51)        The DSD's (first respondent) statistics for issuing written warnings for sick absences are;-

 

(a)        In 2012, 421 written warnings were issued to the DSD's (first respondent) staff, of whom 29 appealed and 5 written warnings were upheld.

 

(b)        In 2013, 470 written warnings were issued to the DSD's (first respondent) staff, of whom 131 appealed and 18 written warnings were upheld.

 

(c)        In 2014 up to 31 May, 244 written warnings were issued to the DSD's (first respondent) staff, of whom 37 appealed and 9 written warnings were upheld.

(52)        On 5 June 2014 the claimant lodged a claim (Case Ref: 1050/14) against respondents one to three claiming disability discrimination and failure to make reasonable adjustments. She lodged a second claim (Case Ref: 2443/14) on 16 October 2014 against the fourth respondent claiming disability discrimination by reason of victimisation.

 

(53)        In mid-July 2014 the claimant transferred to the Human Resources Directors' Office as personal secretary to the two assistant human resources directors.

 

(54)        In early August 2014 Gary Craig (fourth respondent) met with the claimant to chat informally with her about her new role in the HR Directors' office. In the course of the conversation he mentioned to the claimant that he was aware of her claim against the DSD (first respondent) and he chatted to her about the claim. He also mentioned that he had not any interest in dissuading her from making her claim.

 

(55)        Around the end of August 2014 Linda Houston and Gary Craig (fourth respondent) had one of a number of discussions about a Notice for Discovery in the claimant's claim in which she had named as a comparator an employee of the DSD (first respondent). The named individual had previously brought a number of complaints against the DSD (first respondent), including a claim before the industrial tribunal.

 

(56)        Barry Mulligan had earlier raised with Linda Houston whether the claimant's use of confidential information (information about the named comparator) was a breach of discipline.

 

(57)        Both Linda Houston and Gary Craig (fourth respondent) had concerns that the claimant had obtained information about the named comparator through work and could face a complaint from the individual. Linda Houston intimated to Mr Craig that a question had been raised as to whether the claimant had committed a breach of discipline. Linda Houston asked Gary Craig not to mention this to the claimant. Gary Craig (fourth respondent) had a concern that there was potential for disciplinary action on the basis of what Linda Houston had told him.

 

(58)        Terry McKeown told Linda Houston that Barry Mulligan was questioning what the claimant had done as though it were a disciplinary matter.

 

(59)        Following the information from Terry McKeown Linda Houston and Gary Craig (fourth respondent) had a further conversation about the named comparator in the claimant's claim, in confidence. During the conversation Linda Houston warned Gary Craig that he could not speak to the claimant about their conversation as it was in confidence and that they needed to be careful lest it be perceived as victimisation. Gary Craig told the tribunal that he was acutely aware of the risks of speaking with the claimant about her claim.

 

(60)        Gary Craig (fourth respondent), following a conversation with Helen Campbell about the claimant, approached the claimant on the morning of 5 September 2014 "for a chat". Initially Mr Craig inquired about her new job, her health and how she was getting on. She informed him, inter alia, that she had started bereavement counselling arranged by her doctor. The claimant alleges that Gary Craig commented, "I wonder why he recommended that? Is it anything to do with your case?" He then added, in relation to her claim, that she should consider what she wanted to get out of it and to be mindful of the effect on her health.

 

(61)        Gary Craig (fourth respondent) disputes part of the claimant's account and he alleges he sought her agreement in order to discuss her claim with her and in the course of that discussion he made it clear to the claimant that he had no interest in dissuading her from making her claim.

 

(62)        It is common case that he invited the claimant to speak to him if there were anything about which she needed to talk and he accepts that he did tell her to be mindful of the impact of the claim on her health.

 

(63)        The tribunal prefers the account of the claimant. In so concluding the tribunal had regard to the following matters;-

 

(a)       The claimant, in delivering her evidence, came across as an honest witness whereas Gary Craig (fourth respondent) was someone who was willing to breach confidential discussions.

 

(b)       The claimant made notes the following day of the two meetings of
5 September which reflected her evidence to the tribunal whereas Mr Craig did not have any notes of his meetings and discussions on 5 September 2015.

 

(64)        Following the meeting with the claimant on the morning of 5 September 2014 Gary Craig (fourth respondent) had a further discussion with his superior, Helen Campbell, during which they shared their concerns that the claimant's Notice for Discovery could leave her conduct open to question. Helen Campbell agreed that Gary Craig should again speak to the claimant and they discussed what he would say. Accordingly on the afternoon of the 5 September 2014 Mr Craig returned to the claimant for a further discussion. The two accounts diverge on significant aspects.

 

Meeting of 5 September 2014 - the claimant's account

 

(65)        According to the claimant's account, at the start of the conversation Mr Craig (fourth respondent) questioned the claimant about where she had obtained the name of the comparator that she was using in her discovery request. He explained to the claimant that at the earlier meeting he had lacked the courage to raise that issue but had since been speaking to Helen Campbell. The claimant explained to Mr Craig that while in the equal opportunities unit that she had become aware that her comparator was absent for a longer period than she and that she believed he had not received a warning.

 

(66)        Mr Craig (fourth respondent) then intimated that Mrs H Campbell and Mrs Maeve Walls (HR Director) were going to take formal disciplinary action against the claimant as they believed that she had broken the Official Secrets Act. He also told the claimant that he was concerned that her named comparator would complain about her.

 

(67)        The claimant replied that she had discussed it with the Equality Commission and had been informed that she was entitled to name a comparator even if she had become aware of that comparator through work. Mr Craig (fourth respondent) indicated that he did not think that was right.

 

(68)        Gary Craig (fourth respondent) further stated that both assistant directors were concerned about the sensitive material with which the claimant was dealing. They believed there was an issue of trust as the claimant had breached confidentiality.

 

(69)        He also stated that if reference to the claimant's colleague were removed the matter would not be taken any further. He volunteered that the DSD (first respondent) believed the claimant was naive in taking a claim against her employer.

 

(70)        At the end of the meeting Mr Craig (fourth respondent) asked the claimant if he could tell Helen Campbell and Maeve Walls that she was removing the reference to the named comparator. The claimant replied that he could tell her if he wanted to but that she would be speaking to the Equality Commission.

 

(71)        The claimant became extremely upset. The claimant considered that she was being put under pressure to withdraw her named comparator from her claim and to withdraw her claim in its entirety and that her integrity was being questioned. She found the meeting intimidating and distressing. The whole interview brought the claimant to tears. She asked Gary Craig (fourth respondent) to fetch Linda Houston.

 

Meeting of 5 September 2014 - the fourth respondent's account

 

(72)        According to Gary Craig's (fourth respondent) account he asked and obtained from the claimant her permission to speak about her case. He then asked her how she had come upon the named comparator and she had indicated through her work in the Equal Opportunities Unit. Mr Craig then stated that her use of the personal information about the named comparator could leave her conduct open to question because officers were expected to maintain confidentiality about personal information of which they became aware.

 

(73)        When the claimant replied that the Equality Commission had told her that it was alright to use this information Mr Craig (fourth respondent) stated that he did not agree with the Equality Commission's opinion. Mr Craig then repeated his concern that the claimant had used confidential personal information for her personal use without the consent of the other person. He added that Helen Campbell shared that concern.

 

(74)        Gary Craig (fourth respondent) then shared his belief that the named comparator would likely make a complaint and that HR would find it difficult to defend the claimant's actions. Mr Craig continued that he was not trying to dissuade the claimant from bringing her claim but only from using the personal information.

 

(75)        Gary Craig (fourth respondent) then shared an experience he had had when considered for an inefficiency warning, which was not issued following representations from him, and that the claimant was welcome to use his name and circumstances as a comparator.

 

(76)        Before terminating the conversation Gary Craig (fourth respondent) asked the claimant what were her intentions in light of the discussion. The claimant replied that it was her intention to remove the reference to the named comparator and that she would speak to the Equality Commission about the matter. Gary Craig then asked the claimant if he could inform Helen Campbell about her intention and that she had signalled her consent to do so.

 

(77)        The claimant denies that Gary Craig offered himself as a comparator.

 

(78)        Mr Craig (fourth respondent) after he arranged for Linda Houston's attendance with the claimant immediately reported to Helen Campbell about the meeting including his contention that the claimant had told him of her intention to remove the named comparator from her Notice for Discovery. Following a conversation with Linda Houston the claimant went home with her approval.

 

(79)        The tribunal prefers the account of the claimant. In so concluding the tribunal had regard to the following matters;-

 

(a)        The claimant came across as an honest witness whereas Gary Craig (fourth respondent) was less reliable as, on his own evidence, he was prepared to breach confidentiality in relation to information given to him in confidence.

 

(b)        The claimant made a written note of the conversation which reflects her account to the tribunal whereas Gary Craig did not make any notes of the conversation.

 

(c)        The claimant set out her concerns in an email to Gary Craig and in emails to the Departmental Solicitor's Office. The details of the claimant's account were never contradicted.

 

(d)        A number of the details of the claimant's account were confirmed by Linda Houston in her account of her conversation with the claimant immediately afterwards.

 

(80)        The claimant met with Linda Houston immediately after her meeting with Gary Craig (fourth respondent). She was crying and explained to Linda Houston that she was in trouble for having used a named comparator (officer 37). Ms Houston shared her concerns about using the named comparator, viz, that he could complain and that there might be issues about the claimant obtaining the information through work and she mentioned the Official Secrets Act, which she said was not relevant, and the Data Protection Act.

 

(81)        The claimant also mentioned that Gary Craig (fourth respondent) had raised the matter of lack of trust in her by Helen Campbell and Maeve Walls and that she was concerned that she might have breached the Data Protection Act.

 

(82)        Linda Houston raised with the claimant if she could use other evidence in support of her claim instead of the named comparator officer 37 e.g. statistics and if there were a possible resolution of the claimant's claim. At the meeting with Linda Houston the latter advised the claimant to leave work early which she did.

 

(83)        Linda Houston gave evidence that the claimant had not given her the impression that she would make any changes to her Notice for Discovery but asked how she would remove the comparator's name (officer 37) if that were the decision to which she came.

 

(84)        The claimant explained to Linda Houston that she had assumed officer 37 had not received a warning and that was why she had sought information about him in her Notice for Discovery.

 

(85)        Linda Houston asked the claimant what she saw as a resolution to the tribunal proceedings and if such were achieved would she still want to pursue her claim.

 

(86)        Linda Houston met with Gary Craig (fourth respondent) after meeting with the claimant. Gary Craig informed her that he had reported to Mrs Campbell that the claimant had told him she would be removing the named comparator from her discovery request. Linda Houston stated to Gary Craig that that was not the impression that the claimant had given her.

 

(87)        The claimant made a written note of both discussions of 5 September 2014 with Mr Craig (fourth respondent) on 6 September 2014. She was then off work for one week and returned on 15 September 2014. The claimant expressed a number of concerns about the 5 September meetings and conversation with Gary Craig to the DSD's (first respondent) legal adviser on 8 September 2014.

 

(88)        On 10 September the claimant sent an email to Gary Craig (fourth respondent) and copied it to Helen Campbell, among others. In the email she set out a number of matters including; that using the named comparator was being considered by Helen Campbell and Maeve Walls as a breach of the Official Secrets Act; about being threatened with disciplinary action; that she was entitled to seek information about her named comparator; her offer that for the purposes of the hearing the named comparator's identity could be anonymised; her allegation that the DSD (first respondent) had harassed and victimised her; her reluctance to return to work for Helen Campbell and Maeve Walls where her integrity was being questioned and where there was a lack of trust; and she asked for a response to her email.

 

(89)        In his evidence to the tribunal Mr Craig (fourth respondent) denied referring to Maeve Walls during the meeting or mentioning the Official Secrets Act or threatening or accusing the claimant of a disciplinary offence or suggesting there was a lack of trust between the claimant and Helen Campbell and Maeve Walls or that her integrity was being questioned. He also denied pressurising the claimant into dropping her case or victimising her for having brought a claim. Mr Craig asserts his motivation at all times was altruistic and because of his concern for the claimant.

 

(90)        For the reasons set out above the tribunal prefers the evidence of the claimant. .

 

(91)        On her return to work on 15 September 2014, in the Equal Opportunities Unit, Helen Campbell informed the claimant that disciplinary action was not being considered against her and that there was not an issue about a lack of trust. This upset the claimant as she wondered why Gary Craig (fourth respondent) had represented the situation differently. Helen Campbell told the tribunal that all actions, including, in her opinion, those of Gary Craig were taken with the intention of protecting the claimant.

 

(92)        The DSD (first respondent) replied by email of 19 September 2014 in relation to the queries raised by the claimant in her email of 9 September 2014. The tribunal assumes that it is the email of 10 September to which the first respondent is replying. In the email of 19 September 2014 the DSD's (first respondent) solicitor acknowledges that the discussion between the claimant and Gary Craig (fourth respondent) had caused the claimant distress. The email attached a letter which the DSD (first respondent) had sent to the Office of the Industrial Tribunals. It did not contradict the details of the claimant's complaints about Gary Craig's (fourth respondent) comments at the meeting of 5 September 2015. It went on to explain that:-

 

"there are certain sensitivities regarding the discovery request, in relation to the named comparator [Office 37] and it is therefore, attempting to balance the interests of both the claimant in her litigation and comparator's right to privacy, in order to provide information and discovery to the claimant which is relevant and necessary.

 

(93)        On 22 September 2014 the claimant sent an email to the Departmental Solicitor's Office which was acting on behalf of the DSD (first respondent). In that email the claimant raised a number of points regarding the meeting of 5 September 2015 with Gary Craig (fourth respondent). She disagreed that the meeting was "an informal chat between colleagues". She asserted that the tone of the meeting was sinister and intimidating and that Gary Craig had told her that disciplinary action would be taken against her by Mrs Maeve Walls (HR Director) and Mrs Helen Campbell (Assistant HR Director) because she had used information learnt through her employment. She also asserted that her trust was being questioned by the HR Directors. The disciplinary action was described as very serious in that it could lead to dismissal. The claimant also raised how Gary Craig had come to know about the information in relation to her claim as he was not a member of staff in the Equal Opportunities Unit which deals with tribunal cases against the DSD nor was he involved in the management of the claimant's tribunal case. She queried whether her confidentiality had been breached. She also reiterated her understanding of how the DSD's (first respondent) staff are to act in relation to a person who has brought legal proceedings against the DSD particularly in relation to the ramifications of the victimisation legislation.

 

(94)        She also asserted that Gary Craig (fourth respondent) had attempted to sabotage her tribunal claim during the meeting on 5 September 2014 by stating to her that if she dropped her comparator from the proceedings that no disciplinary action would be taken against her. Yet that allegation that disciplinary action would be taken against her was denied to the claimant by Mrs Campbell on 15 September 2014. The claimant also complained how these events were causing her suffering, anxiety and stress.

 

(95)        The Departmental Solicitor's Office, on behalf of the DSD (first respondent), replied to the claimant by email dated 30 September 2014. In that email the Departmental Solicitor stated that Gary Craig (fourth respondent) would not have continued with the conversation with the claimant on 5 September 2014 were she not content to do so. It further stated that Gary Craig had denied stating that disciplinary action was going to be taken. The email explained that Gary Craig had become aware of the claimant's claim as a result of his being part of the directors' secretariat and only spoke to the claimant in a spirit of concern for her well-being. The email also denied that Gary Craig was directed by management to speak to the claimant; that he had no interest in persuading her from pursuing her claim; and whilst accepting that the choice of comparator did feature in the conversation Mr Craig asserts that he did not try to dissuade the claimant from relying upon her chosen comparator but accepts that he expressed concern about the claimant possibly having obtained the information in relation to the comparator from her work in the Equal Opportunities Unit.

 

(96)        The DSD's (first respondent) officer 3 had a similar history to the claimant. His condition fell under the Disability Discrimination Act 1995, as amended. He was subject to a review under the Inefficiency Sickness Absence Policy. He had been off for 114 days on three occasions, between 6 September 2011 and 4 July 2012, longer than the claimant. However fearful for the impact, by way of stress, on him management recommended that further inefficiency measures should not be pursued against him. Officer 3 by reason of his condition of Chronic Fatigue Syndrome/Myalgic Encephalomyelitis for 13 years had in place a number of reasonable adjustments. In February 2011 he had been considered for a written warning but it was decided not to issue a written warning to him.

 

(97)        The reviewing officer in officer 3's case was Deborah Daly (third respondent) who was also the person who had decided to issue a written warning for inefficiency against the claimant on 18 September 2012. In officer 3's case she had concluded;

 

"Therefore, on taking all available information into account while I accept this was a very lengthy, I feel that in view of the officer's condition as a reasonable adjustment a Written Warning should not be issued on this occasion. However, any further absences may lead to a Written Warning being issued."

 

Among the relevant factors that Deborah Daly (third respondent) had taken into account were, management's advice that they did not want to put more stress on officer 3 or progress the inefficiency policy as this could jeopardise his return to work as the officer had advised he was returning to work. She also had regard to factors that post dated the period of absence in deciding not to issue a written warning.

(98)        The claimant relies, as a comparator, on the circumstances of officer 37, the person who had excited concern as a comparator. He had been off for 120 days by reason of work related stress which triggered a review under the Inefficiency Sickness Absence Policy. His was not treated as suffering from a disability for the purposes of the Disability Discrimination Act 1995. His last previous absence was for five days in 2010. Deborah Daly (third respondent) was again the reviewing officer. In her decision not to issue a written warning against him, she concluded:-

 

"Therefore, on taking all available information into account, I appreciate the difficulties the officer felt he had experienced in the workplace and I do not doubt the genuineness of his absence. However, while I have noted this I cannot ignore that this was a very lengthy absence which seriously breached a review point. Therefore, on taking all factors into account I feel that a Written Warning could now be issued as review points have been breached and the absence is not excluded. However, in view of the officer's previous attendance record along with the fact he has now been transferred to a new post, which should remove the stress he felt he was under, I feel that a Written Warning should not be issued on this occasion and the officer given an opportunity to improve his attendance."

 

(99)        The claimant also refers to the circumstances of officer 9 as an example of the DSD's (first respondent) inconsistency in issuing warnings for inefficiency. He had been off for 11 days in 2013 on two occasions by reason of chest and respiratory problems and vomiting which triggered a review under the Inefficiency Sickness Absence Policy. His absence was not treated as being related to a disability for the purposes of the Disability Discrimination Act 1995. A previous absence in 2013 breached a review point but he was not considered for a warning. Deborah Daly (third respondent) was again the reviewing officer. In her decision to award a written warning on 10 March 2014 she concluded;-

 

"Therefore, on taking all available information into account, I do not doubt the genuineness of the officer's absences and accept that he was unable to attend work on these two occasions due to illness. However, while I have noted this I must take into account that review points have been breached and the absences are not excluded. I have also noted that although a review point was breached in March 2013, inefficiency action does not appear to have been taken at that time. Therefore, on taking all factors into account I feel that a Written Warning should now be issued."

 

(100) The tribunal was also referred to the circumstances of officer 29 who was off on three occasions for 56 days in a rolling 12 months. The officer was not a disabled person for the purposes of the Disability Discrimination Act. The officer had been considered for inefficiency action in August 2011 and had received a written warning. Deborah Daly (third respondent) was the reviewing officer. In her decision she stated:-

 

"I have taken into account that the officer's absence from 20 May 2011 to 1 July 2011 was due to the death of her ex partner, who is also the father of her child. I have also taken into account the help the officer sought at that time and since in order to help her deal with the stress and pressure she is under. Following this absence a Written Warning was considered but due to the nature of the absence a Written Warning was not issued.

 

I have also taken into account the circumstances which led to the officer's latest absence and appreciate the difficulties she has encountered during the year. However, on doing so I cannot ignore the length of her latest absence which totalled 23 working days. The officer started in the NICS 2007 although she has not reached a review point until last year, she did have absences every year since she started.

 

Therefore, on taking all available information into account, I feel that a Written Warning should now be issued."

 

However on appeal the written warning was removed, in part, because the officer had between the original decision and appeal provided further information which could make it fall under the Disability Discrimination Act in that she suffers from re-active depression.

 

(101) The claimant believes that the issuing and upholding on appeal of a written warning and the failure to make a reasonable adjustment by not issuing or upholding on appeal the written warning, while aware of her circumstances, negatively impacted on her physical and mental health and that it amounted to discrimination on the grounds of her disability by respondents one, two and three and this was exacerbated by what she regards as victimisation by the fourth respondent.

 

(102) The claimant further believes that the DSD's (first respondent) issuing of inefficiency warnings was questionable and inconsistent and had failed to have sufficient regard to the disability legislation as part of the review process.

 

(103) It appears that the claimant's named comparator, officer 37, had brought a tribunal claim against the DSD (first respondent) and that the claim had attracted publicity and attention outside of the first respondent department.

 

THE LAW

 

5. (1) 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 that particular disability whose relevant circumstances, including his abilities, are the same as, or are not materially different from, those of the disabled person (Section 3A(5) Disability Discrimination Act 1995 as amended).

 

(2) A person 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. (Section 3A(2) Disability Discrimination Act 1995 as amended).

 

(3) Where a provision, criterion or practice applied by or on behalf of an employer places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature having that effect. For the purposes of this section the disabled person concerned means a disabled person who is an employee of the employer concerned (Section 4A(1) and (2) Disability Discrimination Act 1995 as amended).

 

(4) In Royal Bank of Scotland v Ashton [2011] ICR 632, Langstaff J held that 'an Employment Tribunal - in order to uphold a claim that there has been a breach of the duty to make reasonable adjustments and, thus, discrimination - must be satisfied that there is a provision, criterion or practice which has placed the disabled person concerned not simply at some disadvantage viewed generally, but at a disadvantage which is substantial and which is not to be viewed generally but to be viewed in comparison with persons who are not disabled'. On the facts of the case, where an employer's sickness policy was (eventually) applied to the employee, leading to her receiving a warning and the withholding of sick pay, the tribunal were found to have erred in concluding that there had been a failure to make a reasonable adjustment. The EAT warned that the examination must not be of the way in which an employer had treated an employee generally or their thought processes, but rather, the focus should be an objective analysis on the practical result of the measures which could be taken. (Harvey on Industrial Relations and Employment Law L at [397.01]).

 

(5) Judge David Richardson in giving the decision of the EAT in General Dynamics Information Technology Ltd v Carranza [2015] IRLR43 stated at paragraph 40:-

 

" It is, I think, important to appreciate that the PCPs which were defined by the Employment Tribunals in Ashton and Griffiths ... were rather different. In those cases the PCPs were defined by reference to sickness absence or attendance procedures and their application: see paragraph 37 in Ashton and paragraph 8 in Griffiths. The procedures were, however, already modified to cater for disability. This led to insuperable difficulty in those cases in establishing substantial disadvantage compared to persons who were not disabled: see paragraph 40 in Ashton and paragraph 33 in Griffiths. It is, I think, unsatisfactory to define a PCP in terms of a procedure which is intended at least in part to alleviate the disadvantages of disability. The PCP should identify the feature which actually causes the disadvantage and exclude that which is aimed at alleviating the disadvantage."

 

(6) As was noted by the House of Lords in its decision Archibold v Fife Council [2004] UKHL 32, [2004] IRLR 651 [2004] ICR 954 (per Baroness Hale at paragraph 47), the duty necessarily requires the disabled person to be treated more favourably in recognition of their special needs. It is thus not just a matter of introducing a 'level playing field' for disabled and non-disabled alike, because that approach ignores the fact that disabled persons will sometimes need special assistance if they are to be able to compete on equal terms with those who are not disabled ... [Harvey on Industrial Relations and Employment Law L at [398.01]).

 

(7) To determine whether it is reasonable to take the step to comply with the duty to make reasonable adjustments regard will be had to the following matters:

 

(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 to take the steps;

 

(c) the financial and other costs which would be incurred by the employer in taking the step to the extent to which taking it would destroy 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; and

 

(f) the nature of his activities and the size of his undertaking (Section 18B(1) Disability Discrimination Act 1995 as amended).

 

(8) Where on the hearing of a complaint under the Disability Discrimination Act 1995, as amended, of direct discrimination, failure to make reasonable adjustments or disability related discrimination the complainant proves facts from which a tribunal could conclude, in the absence of an adequate explanation, that a respondent has acted in a way unlawful under the Act a tribunal shall uphold the complaint unless the respondent proves that he did not so act. (Disability Discrimination Act 1995 as amended
Section 17A(1C)).

 

(9) The Northern Ireland Court of Appeal in MacDonagh and Others v Samuel John Hamilton Tom, t/a The Royal Hotel Dungannon [2007] NICA 3 stated that when considering claims of discrimination, tribunals must have regard to the burden of proof. The correct approach to the burden of proof in all discrimination claims is that as set out in the Annex to the decision of the English Court of Appeal in Igen v Wong [2005] 3 All ER 812.

 

(10) In the MacDonagh case the Northern Ireland Court of Appeal recommended tribunals adhere closely to the guidance in Igen.

 

(11) The guidance set out in the Annex to the Igen case is:-

 

(a) Pursuant to section 63 of the SDA it is for the claimant who complains of sex discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful by virtue of Part II or which by virtue of section 41 or 42 of the SDA is be treated as having been committed against the claimant. These are referred to as 'such facts'.

 

(b) If the claimant does not prove such facts he or she will fail.

 

(c) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on the assumption that 'he or she would not have fitted in'.

 

(d) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the Tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the Tribunal.

 

(e) It is important to note the word 'could' in section 63A(2). At this stage the Tribunal does have to reach a definitive conclusion that there was an act unlawful discrimination. At this stage a Tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them.

 

(f) In considering what inferences or conclusions can be drawn from the primary facts, the Tribunal must assume that there is no adequate explanation for those facts.

 

(g) These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw in accordance with section 74(2)(b) of the SDA from an evasive or equivocal reply to a questionnaire of any other questions that fall within section 74(2) of the SDA.

 

(h) Likewise, the Tribunal must decide whether any provision of any relevant Code of Practice is relevant and if so, take it into account in determining, such facts pursuant to section 56A(10) of the SDA. This means that inferences may also be drawn from any failure to comply with any relevant Code of Practice.

 

(i) Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the grounds of sex, then the burden of proof moves to the respondent.

 

(j) It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act.

 

(k) To discharge that burden it is necessary for the respondent to prove on the balance of probabilities that the treatment was in no sense whatsoever on the grounds of sex, since 'no discrimination whatsoever' is compatible with the Burden of Proof Directive.

 

(l) That requires a Tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

 

(m) Since the facts necessary to prove an explanation would normally be in possession of the respondent, a Tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the Tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice".

 

(12) In the MacDonagh case, Kerr LCJ, as he then was, stated that the first question to be addressed is: has the claimant proved, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed the act of discrimination. He went on to say:-

 

"In addressing this question, it would be necessary for the judge to bear a number of ancillary matters in mind. First, that it is unusual to find evidence of discrimination. Secondly, that the conclusion on the preliminary issue will usually be a matter of inference to be drawn from the primary facts. Thirdly it must be clearly understood that the plaintiffs do have to discharge a final burden, merely whether on the facts as found, it is possible to draw the inference of discrimination and finally it must be assumed at this stage that no adequate explanation for the discrimination exists."

 

(13) The application of the burden of proof was also considered in Madarassy v Nomura International PLC [2007] EWCA Civ 33. In that case Mummery LJ, stated in paragraph 56:-

 

"The Court in Igen v Wong expressly rejected the argument that it was sufficient for the complainants 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 has committed an unlawful act of discrimination".

 

(14) The learned Lord Justice elaborated on 'could conclude' at paragraphs 57 and 58:-

 

"'Could conclude' in section 63A(2) must mean that 'a reasonable Tribunal could properly conclude' from all the evidence before it. This will 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 comparison being made by the complainant were of like with like as required by section 5(3) of the 1975 Act; and the available evidence of the reasons for the differential treatment.

 

The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent".

 

Further clarification was given by Mummery LJ at 71:-

 

"Section 63A(2) does not expressly or impliedly prevent the Tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant's evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that even if there has been less favourable treatment of the complainant, it is not on the grounds of her sex or pregnancy."

 

In the decision of the Court of Appeal in Kevin Curley v The Chief Constable of the Police Service of Northern Ireland and Superintendent Middlemass [2009] NICA 8, Coghlin LJ commented further on shifting the burden of proof and discrimination claims and stated as follows:-

 

"However, this Court would wish to emphasise the need for a Tribunal engaged in determining this type of case to keep firmly in mind the fact that the claim is founded upon an allegation of religious discrimination. The need to retain such a focus is particularly important when considering the potential application of the provisions of Article 38 of the 1998 Order."

 

The Court of Appeal in Nelson v Newry and Mourne District Council [2009] NICA 24 cited with approval the comments of Elias J in Laing v Manchester City [2006] IRLR 748 when he stated:-

 

"74 The focus of the Tribunal analysis must at all times be the question of whether or not they can properly and fairly infer race discrimination. If they are satisfied that the reason given by the employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, that is the end of the matter. It is not improper for a Tribunal to say in effect "there is a nice question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he behaved as he did and it has nothing to do with race."

 

(15) A person "A" discriminates against another person "B" if he treats B less favourably than he treats or would treat other persons, whose circumstances are the same as B's and does so by reason that B has:-

 

(a) brought proceedings against A or any other person under the Disability Discrimination Act; or

 

(b) given evidence or information in connection with such proceedings brought by any person; or

 

 

(c) otherwise done anything under or by reference to the Disability Discrimination Act in relation to A or any other person; or

 

(d) alleged that A or any other person has contravened the Disability Discrimination Act; or

 

(e) by reason that A believes or suspects that B has done or intends to do any of these things (Disability Discrimination Act 1995, Section 55(1)(2) and (6) as amended.

 

Where B is a disabled person the disability shall be disregarded in comparing his circumstances with those of any other person. (Disability Discrimination Act 1995 Section 55(3) as amended).

 

(16) Lord Nicholls commented in Chief Constable of the West Yorkshire Police v Khan [2001] IRLR 830 , at paragraph 16:-

 

"The primary object of the victimisation provisions ... is to ensure that persons are not penalised or prejudiced because they have taken steps to exercise their statutory rights or intend to do so".

 

(17) Tolley's Employee Handbook in the 27 ^th Edition 2013 states at paragraph 10.38:-

 

" Victimisation

 

In the United States this form of discrimination is sometimes known as 'retaliation', a word which perhaps more accurately captures its essence than our own term 'victimisation'."

 

(18) A victimisation claim requires;

 

(a) the protected act being relied upon;

 

(b) the correct comparator;

 

(c) less favourable treatment;

 

(d) the reason for the treatment;

 

(e) any defence; and

 

(f) burden of proof.

 

(Harvey on Industrial Relations and Employment Law at [468]).

 

The Correct Comparator

 

(19) "There is no 'single' answer when it comes to defining the proper comparator, but it would appear that this should not be a difficult hurdle for the complainant to surmount. Where the complaint of victimisation is based on a dismissal, for example, the proper comparator is simply another employee in the same employment who has not been dismissed. Where the complaint is of victimisation by refusal of a reference, the proper comparator is another employee seeking a reference. It is not right to require the comparator to have specific characteristics which make his case and that of the complainant closely similar: see Chief Constable of West Yorkshire Police v Khan , in which Lord Nicholls stated (at paragraph [27]) 'The statute is to be regarded as calling for a simple comparison between the treatment afforded to the complainant who has done a protected act and the treatment which was or would be afforded to other employees who had not done the protected act'." (Harvey on Industrial Relations and Employment Law L at [475.01]).

 

Less Favourable Treatment

 

(20) "The question of what amounts to 'less favourable treatment' will frequently be a straightforward question. It is proper to draw an analogy with discrimination provisions which require a claimant to show a 'detriment', which must be examined from the point of view of the alleged victim - see MOD v Jermiah [1979] IRLR 436 [1980] ICR 13, CA, where it was said that a detriment exists 'if a reasonable worker would take the view that the treatment was to his detriment'. The need however to show that any alleged treatment must be capable of being objectively regarded as such was emphasised by the House of Lords in Saint Helen's Metropolitan Borough Council v Derbyshire [2007] UKHL 16, [2007] IRLR 540, [2000] ICR 841 applying Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11, [2003] IRLR 285, [2003] ICR 337, where it was held (paragraph 35) that 'an unjustified sense of grievance cannot amount to 'detriment'". (Harvey on Industrial Relations and Employment Law L at [476]).

 

The Reason for the Treatment

 

(21) The House of Lords, in two decisions ( Nagarajan and Khan), considering the elements of victimisation under the SDA 1975 and RRA 1976 ..., ruled that it must in all cases be shown that less favourable treatment of the person victimised was by reason of him having done a protected act, a simple 'but for' test was not appropriate. There is however no need to show that the doing of the protected act was the legal cause of the victimisation, nor that the alleged discriminator was consciously motivated by a wish to treat someone badly, either because of their sex or race, or because they had engaged in protected conduct. Of course, in most cases where victimisation is established this will be the case, but not in all. Where for example, a person is victimised because of the unconscious or subconscious sexual (or racial) prejudice, that person will be entitled to say that the action taken was on the ground of sex (or race). To put it another way, the respondent will not be able to escape liability by showing an absence of intention to discriminate provided that the necessary link in the mind of the discriminator between the doing of the acts and the less favourable treatment can be shown to exist.

 

Nagarajan v London Regional Transport [1999] IRLR 572 HL ... The majority view was that conscious motivation was no more needed in the establishing of victimisation - discrimination under RRA that it was in relation to ordinary direct discrimination under RRA ... Here it was enough that the employment tribunal had found victimisation to exist on the ground that 'consciously or sub-consciously' the interviewers of Mr Nagarajan for the job vacancy had been influenced by the fact that he had previously brought proceedings against the employer. If motivation is taken out of the picture, as it would appear it must be, establishing the presence of victimisation becomes very much a question of causation ...

 

Chief Constable of West Yorkshire Police v Khan [2001] IRLR 830 [2001] ICR 1065 HL a Police Officer complained of victimisation following his Chief Constable's refusal to provide a reference for him for a new job. The Chief Constable's position was that he was unable to comment as to the officer's suitability for fear of prejudicing his (the Chief Constable's) case in proceedings in which the officer was pursuing a racial discrimination claim against him in the tribunal. In other words the reference was refused because of pending proceedings. It was argued that there was not victimisation, because the same response would have been given in the case of anyone who had brought proceedings against the Chief Constable. The House of Lords, disagreeing with the approach taken in the courts below, accepted that there was no victimisation - on the grounds of how a comparator would have been treated. The proper comparator was another employee of the Police Service who had requested a reference, not another employee who had brought proceedings under a different type of claim. That approach was helpful to the claimant. But at the end of the day there was no victimisation because the reference had been refused, not because proceedings had been brought, but because proceedings were pending. The House of Lords indicated that if the same action had been taken when the proceedings had been concluded that might well have been victimisation - but that was not the situation that applied here." (Harvey on Industrial Relations and Employment Law L at [485]).

 

(22) In the Khan case, Lord Hoffman distinguishes between the doing of a protected act and the fact that a protected act had been done. He refers in his judgement at page 836 paragraph 57 to the decision of Cornelius v University Colleague of Swansea [1987] IRLR 141 and cites at paragraph 58 with approval, comments of Bingham LJ who rejected the complaint for the following reasons as set out at page 145, paragraph 33:-

 

'There is no reason whatsoever to suppose that the decisions of the registrar and his senior assistant on the applicant's request for a transfer and the hearing under the grievance procedure were influenced in any way by the facts that the appellant had brought proceedings or that those proceedings were under the Act. The existence of proceedings plainly did influence their decision. No doubt, like most experienced administrations, they recognised the risk of acting in a way which might embarrass the handling or be inconsistent with the outcome of current proceedings. They accordingly wished to defer action until the proceedings were over. But that had, so far as the evidence shows, nothing whatever to do with the appellant's conduct in bringing proceedings under the Act. There was no reason to think that their decision would have been different whoever had brought the proceedings or whatever their nature, if the subject matter was allied.' (my emphasis).

 

(23) Lord Hoffman added at paragraph 59:-

 

'... Under S.2, however, the commencement of proceedings must be a reason for the treatment and in Cornelius's case it was not'.

 

(24) "The importance of establishing a causative link can be seen in cases such as Khan itself, where it is accepted that 'a protected act' had occurred and there is no dispute over the 'less favourable treatment' but the dispute centres on the reason for the treatment ... The key issue ... will be the tribunal's understanding of the motivation (conscious or unconscious) behind the act by the employer which is said to amount to victimisation ...". (Harvey on Industrial Relations and Employment Law L at [488]).

 

(25) "... in HM Prison Service v Ibimidum [2008] IRLR 940 EAT ... the dismissal of the employee was found to have related not to his bringing of tribunal proceedings complaining of race discrimination but to the way in which he pursued those proceedings, including unreasonable allegations, with a view to harassing his employer to settlement. As the reason for the dismissal was the manner of performing the protected act rather than the protected act itself, this did not amount to victimisation. Such an approach is consistent with the 'reason why' test laid down by the House of Lords in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 HL ...". (Harvey on Industrial Relations and Employment Law L at [488.01]).

 

(26) In the decision of the Northern Ireland Court of Appeal in Jill Simpson v Castlereagh Borough Council Girvan LJ in discussing the reason for the treatment cited with approval comments of Lord Neuberger in the decision of Derbyshire & Others v St Helens where he stated:-

 

"The words `by reason that' require one to consider why the employer has done the particular act ... and to that extent one must assess the alleged act of victimisation from the employer's point of view. However, in considering whether the act has caused a detriment, one must view the issue from the point of view of the alleged victim."

 

Girvan LJ went on to state in finding that the claimant had been victimised contrary to the decision of the tribunal:-

 

"...It must logically follow that one of the effective causes of the delay was the fact that the appellant was pursuing a grievance alleging sexually discriminatory acts on the part of the respondent. The "why question" or the "but for" test lead to the conclusion that, contrary to its decision, the Tribunal should inevitably have found victimisation."

 

(27) There are three broad bands of compensation for injury to feelings which are:-

 

(a) The top band should normally be between £18,000.00 and £30,000.00. Sums in this range should be awarded in the most serious cases such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. Only in the most exceptional case should the award of compensation for injury to feelings exceed £30,000.00.

 

(b) The middle band between £6,000.00 to £18,000.00 should be used for serious cases, which do not merit an award in the highest band.

 

(c) Awards of between £500.00 and £6,000.00 are appropriate for less serious cases, such as where the act of discrimination is isolated or one off occurrence. In general, awards of less than £500.00 are to be avoided altogether as they risk being regarded as so low as not to be a proper recognition of injury to feelings. ( Vento v Chief Constable of West Yorkshire Police (No. 2) [2003] IRLR 102 CA as amended by Da'bell v NSPCC [2010] IRLR 19 EAT).

 

6. Application of the Law and the Findings of Fact to the Issues

 

Disability Discrimination

 

(1) The claimant is a disabled person for the purposes of the Disability Discrimination Act which the respondents accept.

 

(2) In her claim the claimant relies on an actual comparator designated officer 37. He is a non-disabled person who was subject to consideration for inefficiency action by reason of absence from work between 14 January and 5 July 2013. His circumstances are not materially different to those from the claimant. He is therefore a proper comparator.

 

(3) It is clear that the claimant was treated less favourably than officer 37. The latter was off work for 120 days. Though considered for inefficiency action a written warning was not issued against him by the third respondent on behalf of the first respondent. On the other hand the claimant who was off work for 80 days between 7 August and 16 December 2013 was considered for inefficiency action by the third respondent and received a written warning from the third respondent on behalf of the first respondent.

 

(4) The tribunal is not persuaded that the ground for the less favourable treatment was the claimant's disability. In so concluding the tribunal had regard to the following matters:-

 

(a) There is a complete conflict between both sides. The claimant alleges that the reason for receiving the written warning was her disability and the respondents deny that.

 

(b) While the DSD (first respondent) has a policy which sets out the factors to be considered when inefficiency action is being assessed (paragraph 4.3 of the Inefficiency Absence Policy) it is almost impossible to rationalise how the first respondent through its officers, and in particular the third respondent, operated the policy on the basis of the evidence opened to the tribunal.

 

(c) The decisions following consideration of inefficiency action provided to the tribunal do not reveal the outworking of the evaluation. They merely rehearse the factors to be taken into account, assert that was done and announce the answer.

 

(d) Officer 3 who is disabled and has reasonable adjustments in place was off for 114 days in a rolling 12 months for which a written warning was not issued. Officer 9 was off for 11 days in a rolling 12 month period. Officer 9 is not disabled and he received a written warning. Officer 29, a non-disabled person off for 56 days in a rolling 12 month period and with a previous non-issue of a written warning, following consideration of inefficiency action, received a written warning although it was withdrawn on appeal. Officer 37, a non-disabled officer off for 120 days in a rolling 12 month period was not awarded a written warning. The above reviews do not suggest that having a disability was a factor in receiving a written warning.

 

(5) The shift in the burden of proof in discrimination cases does not assist the claimant as she has failed to reach the prima facie level which is necessary to cause the burden to shift.

 

(6) Accordingly her claim for disability discrimination must fail and it is dismissed.

 

Failure to make reasonable adjustment

 

(7) The claimant essentially relies on three PCPs (provision, criterion or practice) to ground her claim for failure to make reasonable adjustments:-

 

(a) the provision that triggers a review of attendance and consideration of inefficiency action under paragraph 4.1 of the Inefficiency Sickness Absence Policy;

 

(b) the awarding of a written warning to the claimant following an inefficiency action consideration; and

 

(c) the failure to remove or rescind that written warning at the appeal stage.

 

(8) Following the guidance of Judge Richardson in the Carranza decision it is the feature which caused the disadvantage to the claimant on which the tribunal will concentrate (paragraph 5(7)(a) above).

 

(9) The claimant's chosen comparator is officer 37 who is a proper comparator as a non-disabled person subjected to the Inefficiency Sickness Absence Policy in relation to consideration as to whether he should receive a written warning for a period of absence greater than the claimant's.

 

(10) The nature and extent of the substantial disadvantage caused to the claimant is, that by reason of periodic flare-ups of her Crohn's Disease, that the claimant's disability exposes her more readily to the review provisions which can escalate quickly to dismissal. She has a history of absences by reason of her disability. She has been considered for inefficiency action on three occasions. For one such absence, the subject of these proceedings, she received a written warning. For the other two occasions when she was considered for inefficiency action she did not receive any warning as a reasonable adjustment was made for her benefit. The claimant therefore has to confront absence by reason of her disability plus the sickness absences arising from the vagaries of life that confront everyone. She is therefore substantially disadvantaged in comparison to a non-disabled person.

 

(11) The tribunal is satisfied that the duty to make a reasonable adjustment is engaged and that the first respondent is under duty to take such steps as are reasonable to prevent the PCP having that effect.

 

(12) The step that the DSD (first respondent) ought to have taken was to consider whether the trigger to the review sickness absence attendance policy ought to be modified for persons with a disability.

 

(13) The evidence from the respondents was that such a modification could not be contemplated and therefore the respondents did not apply their minds to determining the reasonableness of the step, thereby failing in their duty where reasonable adjustments consideration is engaged.

 

(14) There was not any evidence before the tribunal to suggest that the modification of the trigger to a review of sickness absence would not prevent the effect in relation to which the duty would be imposed; nor that such a step was impracticable; nor that financial or other costs would be prohibitive; nor that the first respondent lacked the financial resources; nor that the first respondent's size or resources would obviate the duty to make such a reasonable adjustment.

 

(15) The DSD (first respondent) has failed in its duty to make a reasonable adjustment.

 

Victimisation

 

(16) There was not any challenge that the making of a complaint of unlawful discrimination or the bringing of a claim by the claimant amounted to protected acts. This was a proper approach to be adopted by the respondents.

 

(17) The correct comparator is someone in the same employment who has been absent and was subject to a review of his attendance but has not brought a claim for disability discrimination.

 

(18) The tribunal is satisfied that the claimant suffered less favourable treatment than her chosen comparator, officer 37. In so concluding the tribunal had regard to the following matters:-

 

(a) The claimant was subjected to pressure by Gary Craig (fourth respondent) with the knowledge and support of his superiors to remove officer 37 as a comparator from her disability discrimination claim. The effect of that would probably have undermined her claim in its entirety.

 

(b) The claimant was caused considerable upset by reason of the attempts of Gary Craig (fourth respondent) despite his assertion that it was out of concern for her.

 

(c) On the account of Gary Craig (fourth respondent) he raised potential misconduct by the claimant through accessing confidential information on officer 37; potential disciplinary action against the claimant for so doing; lack of support to her by the HR Department; and the likelihood of complaints about her from officer 37.

 

(d) Gary Craig (fourth respondent) persisted with his negative view of the claimant's situation in relation to her disability discrimination claim even when she provided explanations to him, eg she had not accessed confidential information, or she was entitled to rely on information learned by her at work according to the Equality Commission. His persistence with his desire that the claimant should accept the correctness of his assessment and his refusal to accept the claimant's explanations even on legal matters does not appear to the tribunal to be merely the advice and concern of a friend or on behalf of friends.

 

(e) It is not credible that the intervention of Gary Craig (fourth respondent), with the support and encouragement of his superiors, was purely and simply out of his concern for the claimant's welfare when he did so with the knowledge, support and encouragement of his superiors propagating his superiors' views about misconduct and the potential consequences to the claimant if she persisted with her use of officer 37 as a comparator. .

 

(19) It is clear that the reason for the treatment arose from the claimant's claim of disability discrimination and the desire by DSD (first respondent) and Gary Craig (fourth respondent) that the claimant should remove officer 37 as her comparator. The effect of this would have been to weaken, probably fatally, the claimant's claim of disability discrimination.

 

(20) Applying the statement of Girvan LJ in the Court of Appeal's decision in Simpson, the effective cause of the pressure to remove officer 37 as a comparator was the fact that the claimant was pursuing a claim alleging disability discrimination by the respondent. The "why question" or the "but for" test leads to the conclusion that the tribunal should inevitably find victimisation which it so does.

 




Remedy

 

(21) The claimant's claim is for injury to feelings only. Having seen and heard from the claimant about the effect of the failure to make reasonable adjustments and victimisation the tribunal is of the view that the level of compensation lies within the middle band of Vento. The tribunal considers that the appropriate figure for compensation is £10,000 with interest @ 8% per annum.

 

7. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990 and the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination cases) Regulations (Northern Ireland) 1996 No 581.

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 19, 20, 21, 22, 23, 26, 27 January 2015;

20 and 27 February 2015;

31 March 2015;

and 30 April 2015 Belfast

 

 

Date decision recorded in register and issued to parties: