Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  1241/14

 

 

 

CLAIMANT:                          Aleksandra Goreczna      

 

 

RESPONDENTS:               David Currie and Pamela Currie, t/a Currie’s Spar               

 

 

 

DECISION

The unanimous decision of the tribunal is that

 

(1)       The claimant was automatically unfairly dismissed by the respondents on or about 5 May 2014;

 

(2)       The respondents are ordered to pay the claimant the sum of £4,809.25 as set out at paragraph 65 below by way of compensation for unfair dismissal;

 

(3)       The claimant was a disabled person within the meaning of Section 1 of the Disability Discrimination Act 1995 as at 28 April 2014; and

 

(4)       The respondents did not unlawfully discriminate against the claimant in dismissing her for incapacity in May 2014 and the claimant’s claim of disability discrimination is dismissed.

 

 

 

Constitution of Tribunal:

 

Employment Judge:          Employment Judge McCaffrey  

 

Members:                             Mr F Murtagh

                                                Mr I Foster

 

Interpreter:                           The interpreter to the tribunal was Mr Marck Mazur.

 

 

Appearances:         

 

The claimant was represented by Ms M C Campbell, Barrister-at-Law, instructed by Patrick Park Solicitors.

 

The respondents were represented by Mr K Smith, Consultant.

 

ISSUES

 

1.         This was a claim of unlawful disability discrimination and unfair dismissal.  The main issues for the tribunal to decide were as follows:-

 

(1)          Was the claimant dismissed from her employment with the respondents on or about 28 April 2014 (or some other date) or did she resign?

 

(2)          If the claimant was dismissed, did the respondents follow the Statutory Disciplinary and Dismissal Procedures?

 

(3)          If the respondents did not follow the Statutory Disciplinary and Dismissal Procedures, was the claimant automatically unfairly dismissed?

 

(4)          If the claimant was unfairly dismissed, is she entitled to compensation and if so how much?

 

(5)          Should any award of compensation be increased to take account of any failure by the respondents to follow the Statutory Disciplinary and Dismissal Procedure?

 

(6)          Should any award of compensation for unfair dismissal to the claimant be reduced in accordance with the Polkey decision to take account of the likelihood that the claimant would have been dismissed had the correct statutory dismissal procedures been followed?

 

(7)          Was the claimant a disabled person within the meaning of Section 1 and Schedule 2 of the Disability Discrimination Act 1995 (as amended) (“the 1995 Act”)?

 

 

(8)          Did the respondents discriminate against the claimant on grounds of her disability in dismissing her from her employment on 28 April 2014 (or on some other date)? 

 

(9)          If so, is the claimant entitled to compensation for injury to feelings and if so, how much?

 

FACTS

 

2.         We received witness statements and heard evidence from the claimant, from her husband Lukasz Goreczny and from Dr Bernadette Salisbury, Clinical Psychologist on behalf of the claimant.  We also received witness statements and heard evidence from Mrs Pamela Currie (one of the respondents), from Keith Smith, an HR representative who was also the respondents’ representative and from Peter Nedvelcev, a supervisor working for the respondents.

 

3.         At the outset of the hearing, the claimant’s representative also asked to have a written statement produced by the claimant’s GP, Dr Paul McGarvey and attached letters admitted under the Civil Evidence (Northern Ireland) Order 2003.  The claimant’s representative was asked why Dr McGarvey was not available to give evidence and her reply was that he was a busy GP.  It was pointed out to her that there was a witness order procedure.  She indicated that a witness order had not been sought and apparently no effort had been made to secure Dr McGarvey’s attendance.  Mr Smith indicated that the medical evidence was not agreed, but he wished to refer to Dr McGarvey’s report and some of the correspondence attached to it in his cross-examination of Dr Salisbury.  We were also conscious that, because the claimant’s representatives had failed to notify the Office of the Tribunals in advance that Dr McGarvey would not be attending, Dr McGarvey’s statement had been read by the panel along with all the others.  Accordingly it was the decision of the tribunal that we would admit
Dr McGarvey’s statement and the letters attached to it, but emphasised to Miss Campbell we could give very limited weight to Dr McGarvey’s statement as it was not evidence under oath.  We also made it clear that this approach was totally unacceptable as far as we were concerned and that in future, representatives should ensure that the tribunal was advised in advance of the reading time if a witness would not be available.  This would avoid a situation where the tribunal had already read a statement, believing that the witness concerned would be available to prove his or her statement and to be cross-examined. 

 

4.         We note that Dr McGarvey’s report specifically states that he is a General Practitioner working within the practice and is not a disability expert.  He also notes that the claimant was seen by his colleague Dr Clarke and by doctors in the surgery in May, July, September and December 2014.  He does not state the level of his involvement in the claimant’s care.  He states as his view that one definition of disability is “a physical or mental condition that limits a person’s movement, senses or activities”.  He states in his report, “Given this definition she definitely would have been disabled from the accident in December 2014 for at least one year”.  The doctor’s definition of disability however is not that set out in the Disability Discrimination Act 1995, he acknowledges he is not an expert in disability and he does not set out in detail the ways in which the claimant meets the statutory definition of disability in the 1995 Act.  Accordingly we consider that we must give little weight to Dr McGarvey’s report. 

 

5.         During the hearing, Ms Campbell referred us to a document headed “Agreed Statement of Factual Issues”, which she asserted was an agreed statement of facts in the case.  She sought to cross-examine Mr Smith on alleged inconsistencies between matters in his witness statement and in the “Factual Issues” document.  Mr Smith said that the document was a Statement of Factual Issues to be determined by the tribunal and the matters in it were not agreed as facts by the respondents.  Ms Campbell referred to an email from Mr Smith to her instructing Solicitor in which she said he indicated he was content with the “new draft”.  We did not see this email during the hearing.  It was pointed out to Ms Campbell that the content of the document and its heading were consistent with it being a statement of factual issues rather than an agreed statement of facts.  Secondly, the document had not been opened to us at the start of the hearing as an agreed statement of facts, and thirdly, we questioned why we were hearing evidence on all issues if the main facts of the case were agreed.

 

6.         Despite this, Ms Campbell attempted to introduce evidence of the content of Mr Smith’s email in her written submissions submitted after the end of the hearing.  She also “directed” the tribunal to the respondents’ replies to a request for additional information in the broadest terms in her submissions.  We record that we were referred to these replies only twice in the course of the hearing: once in relation to the identity of the staff present and who heard the conversation between the claimant and Mrs Currie referred to at paragraphs 11 and 12 below and secondly, in cross-examination of Mr Smith, in relation to the date the claimant’s employment ended.  We consider it quite inappropriate and unacceptable for a legal representative (who should know better) to try and introduce evidence not led during the hearing by the back door in her submissions.  On the basis of the evidence before the tribunal, and the documents opened to us, we make the following findings of relevant facts.

 

7.         The claimant worked for the respondents as a Sales Assistant from 29 July 2012 until the end of April or beginning of May 2014.  Her wages were £280.00 per week gross, £230.00 per week net.  We return to the date of termination of her employment later.  The claimant commenced maternity leave on 1 July 2013, so she was due to return to work following nine months’ maternity leave on 1 April 2014.  However while visiting relatives in Poland in December 2013, the claimant and her husband were involved in a serious road traffic accident on 21 December 2013 as a result of which they both sustained personal injuries.  The claimant suffered particularly serious injuries in that she was in intensive care for some time after the accident and sustained in particular a head and brain injury, fractured sternum, broken ribs and internal injuries.  She had a long stay in hospital and she and her husband were only able to return to Northern Ireland in March 2014.  The claimant’s husband, who had been less seriously injured in the crash was still on sick leave, and continued on sick leave until August 2014 partly so that he could care for the claimant.  It was his undisputed evidence that at that time his wife needed help to wash and dress and that she could not do anything about the house, so he did all of the housework, cooking, washing and ironing.  He also cared for their baby son, because the claimant was unable to lift him.  From March 2014 until August 2014 when the claimant’s husband was at home, he indicated that the claimant’s headaches, poor balance and dizziness meant that there were days when the claimant could not get out of bed at all, perhaps for two or three days a week.  She had difficulty in going up and down stairs and needed her husband to take her to medical appointments. Even after the claimant’s husband resumed work in August he continued to cook and do the laundry at home as well as household chores and shopping because the claimant was still unwell.  He stated in his witness statement that although the claimant’s health had improved in 2015, she still had sore headaches, dizziness and pain in her chest. 

 

8.         The claimant herself indicated that in the second half of 2014 her main problems were her balance, headaches and tiredness.  She still needed a lot of rest and had to use her son’s pushchair on occasion to help her keep her balance.  The claimant was referred by her GP in Portadown to the Acquired Brain Injury Rehabilitation Team (ABIRT) and attended that service from May 2014 to December 2014.  She was treated there by a team including Dr Bernadette Salisbury, Clinical Psychologist, physiotherapists and occupational therapists.  Dr Salisbury reported that when referred to the ABIRT team, the claimant’s main problems were reduced memory, reduced attention, poor balance, dizziness and headaches.  Dr Salisbury noted as well that the claimant’s mobility had been significantly affected by her car accident: the claimant suffered from dizziness and although independently mobile she had to walk slowly and carefully as she was at risk of falls.  The claimant was also found to have substantially reduced hand strength, grip and fine motor skills and she suffered from right sided weakness following her accident.  The details of this were set out in Dr Salisbury’s report.  The claimant was found to have deficits in regard to attention and immediate memory.  Dr Salisbury’s conclusion was as follows:-

 

                        “In my opinion Aleksandra was not able to cope with the full demands of her previous employment following her head injury because of the impact on her physical abilities, pain, headache, reduced fine motor skills and cognitive difficulties (especially attention and encoding of memory).  During her period of involvement with ABIRT (from May 2014 to December 2014) she would have met the eligibility criteria for disability (as defined by DDA) given that she was assessed and treated for substantial physical and mental impairment as a result of her accident that had a detrimental impact on her everyday functioning for at least 12 months.  However given the improvements in her physical balance, fine motor skills, physical stamina and reduction in headaches, as well as Aleksandra’s desire to return to employment she was likely to be able to return to light duties/phased return to employment before March 2015 barring any other adverse events.”

 

9.         Dr Salisbury also confirmed in evidence that she had not assessed the claimant when she was discharged from the ABIRT in December 2014 and had not assessed the claimant since, so she could not say for certain that the claimant would have been fit to return to employment in March 2015.

 

10.      It was the claimant’s evidence that from early 2015 her dizziness had improved and at the date of the hearing she now suffered from dizziness on average only once a week.  She said that she still suffers from headaches as at the date of the hearing and still cannot balance properly if she bends over for longer than a few seconds.  She had attended the Jobs and Benefits Agency earlier in the year to look for work and was due to start a part-time Leadership and Management course in October 2015.  When she was asked at what date she considered she would have been fit to return to work, she said that she would be fit she believed at present (September 2015) for light duties but could not lift anything heavy.  She said that she needed to take a seat from time to time for avoid dizziness and she was considering volunteering in a charity shop for a few hours a week to “see how it would go”.  We fully accept the claimant has had a lengthy recovery from severe injuries.  We also accept that she is keen to return to “normal life” as soon as possible and that for her, this involves a return to work, an attitude we found very commendable and genuine. 

 

11.      The claimant’s evidence to the tribunal was that when she returned to Northern Ireland at the end of March 2014 she had understood that she was still on maternity leave.  She had not applied to take a period of unpaid Additional Maternity Leave.  She was a regular customer in the respondents’ shop.  She attempted to contact Mrs Currie by telephone on a couple of occasions because she had been told that her employer would give her an SSP1 form. On cross-examination, she confirmed that she had sought advice regarding benefits and had been told that she should speak to her employer to see if it was better for her to remain on maternity leave or to go on sick pay.  The claimant was not familiar with the benefits system in Northern Ireland because she had always worked.  We accept that the claimant attempted to speak to Mrs Currie on a few occasions and then finally spoke to Mrs Currie on 23 April 2014 when she called at the shop.  There were other staff around at the time, but none of them was called to give evidence in relation to the conversation between the claimant and Mrs Currie.  Mrs Currie’s evidence was that two of the staff members concerned had since left the business. One was in America and the other had started nurse training.  The third was needed to remain at the business as other staff were on leave, and she could not close the business to bring that member of staff to the tribunal.  Accordingly, we have different accounts of the conversation from the claimant and Mrs Currie and no independent corroboration of the content of that conversation.  The claimant’s witness statement said that on the day she saw Mrs Currie at the shop, she told her that she (the claimant) wanted to take 12 months’ maternity leave and that it would be “some time” before she would be able to return to work.  Mrs Currie agreed that there was a conversation between the claimant and her on the shop floor.  The claimant’s evidence under cross examination was that she wanted either to extend her maternity leave or to claim sick pay, whichever was better.  When she was asked if she had discussed the SSP1 form with her employer, she indicated that she had only asked about this over the telephone, she thought with one of the supervisors.  This does not appear in the claimant’s witness statement, and it was not specifically put to any of the respondents’ witnesses. 

 

12.      Mrs Currie’s account of the meeting was that the claimant said that she had been seriously injured and her doctor said that she would be unavailable for work for at least two years.  Mrs Currie’s account was that the claimant said she was very sorry but she would have to leave because she could not come back to work.  The claimant completely denied she had said she was leaving and said that she had never wanted to quit, but that she asked Mrs Currie which would be easier or better to extend her maternity leave or to start a sick line.  Mrs Currie equally denied that the claimant had asked about extending her maternity leave or a sick line.  On balance we are satisfied that as a matter of fact the claimant told Mrs Currie at this time that she would not be fit for work for up to two years, on the advice of her doctor in Poland.  Given the claimant’s evidence on cross-examination that she had only spoken to a supervisor on the phone about the SSP1 form, we can make no finding that the claimant asked Mrs Currie about going on sick leave, given Mrs Currie’s clear evidence to the contrary.  It was Mrs Currie’s evidence that she told the claimant that she would have to have an interview with Keith Smith, who dealt with all the HR matters for the respondents.  We accept Mrs Currie’s evidence that she took nothing to do with HR matters, but relied on Mr Smith’s advice.  Mrs Currie also said that she was very sorry about the claimant’s accident and was sorry that she could not return.  The claimant accepted Mrs Currie had said all this to her. 

 

13.      A few days later the claimant received a text message from Keith Smith to arrange to meet her and Mr Smith met the claimant along with Peter Nedvelcev (one of the respondents’ supervisors) on the evening of 28 April 2014.  Mr Smith’s evidence was that Mrs Currie had told him the claimant was leaving because of her accident and he viewed this meeting as an “exit interview”. 

 

14.      Mr Smith and Mr Nedvelcev gave very similar accounts of that meeting. 
Mr Nedvelcev said that at the outset of the meeting, Mr Smith said to the claimant that he had been told that she had been involved in an accident and that she would not be returning to her job.  When he asked the claimant what had happened, the claimant explained she had been in a very bad car crash and would not be able to come back to work for at least two years as advised by her doctor.  The claimant was adamant that she had said that this was the advice of her doctor in Poland, but that her doctor in Northern Ireland had not yet made an assessment when she would be able to return to work.  She said in her witness statement that her doctor in Northern Ireland had not made any assessment and that he had referred her for “physiotherapy”.  On cross-examination, the claimant clarified that in fact she had been referring to her rehabilitation treatment, rather than physiotherapy.  Both
Mr Smith and Mr Nedvelcev were adamant that the claimant had only referred to the comments of her doctor (without specifying whether it was the Polish doctor or her doctor in Northern Ireland) that she would not be able to return to work for up to two years.  On balance, we accept that Mr Smith and Mr Nedvelcev were clearly told that the claimant’s doctor had said she would not be able to return to work for up to two years.  We do not consider it is essential for the purposes of this case to make a finding as to whether the claimant said her doctor in Northern Ireland had not yet given an assessment of when she would be fit for work.  What is also clear is that the claimant did not dispute that she was likely to be absent from work for a considerable period of time.  At no point did Mr Smith ask the claimant if she definitely wanted to resign her job, or clarify whether she understood that resigning would end her employment.

 

15.      It was Mr Smith’s evidence that the claimant also told him that her husband had left his employment to become her full-time carer.  This was not in fact correct and the claimant denied that she had said this either to Mr Smith or Mrs Currie.  We accept, however, that the claimant told them both that her husband was caring for her and that he was not working at that time.  It is also clear that by this stage the main reason the claimant’s husband was off work was in order to care for the claimant.  Some of this information about the claimant’s likely absence following her accident and her husband being off work is also reflected in the respondents’ letter to the claimant on 5 May (see below). 

 

16.      Mr Smith’s witness statement does not refer to whether or not he discussed with the claimant the difficulties in keeping her job open for a period of up to two years but the claimant’s witness statement confirms it was discussed and Mr Smith’s subsequent letter to the claimant also refers to this.  (See below para 18).  He said that it was his understanding that the claimant would not be able to return to work for two years and the claimant did not dispute this.  He then discussed a number of benefits (but not Statutory Sick Pay) with her and advised the claimant that when her employment ended, the Social Security Agency would contact her employer.  He assured her that she would be given support by the respondents to get whatever benefits were available to her and he discussed with her attendance allowance, disability living allowance, income support and housing benefit.

 

17.      The claimant said in her evidence that at the start of the meeting she had told Mr Smith and Mr Nedvelcev that her English was not back to normal.  Neither Mr Smith nor Mr Nedvelcev had any recollection of this.  They confirmed that the meeting was conducted throughout in English and both of them were clear that the claimant was as fluent in English at that meeting as she had ever been.  We found the claimant’s English at the hearing to be fluent although on occasions not quite entirely accurate as to grammar.  She was however well able to convey the majority of what she needed to say and required the assistance of the interpreter only sporadically.  We are also conscious from Dr Salisbury’s evidence however that at the time of this meeting the claimant was suffering from short-term memory loss as well as the other injuries she had suffered in her accident.  The panel clarified with the claimant that Mr Nedvelcev is Slovakian and that the meeting was conducted throughout in English.

 

18.      Following that meeting Mr Smith wrote to the claimant by email on 5 May 2014. Because of the significance of that letter we quote it in full:-

 

                        “Dear Alex

 

                        Further to our meeting in the office at Bridge Street Filling Station in Portadown I am now writing to you to confirm what was discussed and agreed during that meeting. 

 

(1)      You will recall the meeting was held in the presence of Peter who is a Senior Supervisor on site.

 

(2)      The meeting was conducted by Keith Smith who provides professional HR advice and guidance to Currie’s Spar.

 

(3)      The meeting was arranged to discuss with you the implications of your very serious road accident during a visit home to Poland during your period of maternity leave.

 

(4)      You took the opportunity to show both Peter and I the photographs of that accident, we all agreed you were very fortunate to survive and indeed your baby was lucky to escape without any injuries at all.  You commented at that stage you would recommend the child safety seat you had your child in at that time.

 

(5)      You also advised me that your husband had to leave work to look after you and that your recovery will be slow. 

 

(6)      You also advised me that your doctor had explained to you that it may be two years before you are able to return to work.

 

(7)      At this point I explained to you that the business could not keep your position open for that period of time, you accepted that this was the case.  I also advised you that there would be many opportunities for you to seek financial assistance of carers allowance, possible DLA and sickness benefit.  I also advised you that the business would co-operate with any of the Government Departments who may need confirmation in respect of your employment status.

 

(8)      You were also advised that when you do recover from your injuries that this business would consider an application for any new positions that may be available at that time. 

 

(9)      Finally I said I would write to you to confirm that unfortunately your employment contract with Currie’s Spar was now terminated as a result of you inability to attend work for up to two years.

 

 

On behalf of Derek and Pamela Currie and the rest of the staff within their business, can I wish you a very speedy and full recovery and wish you and your family every success for the future?

 

Yours sincerely

 

KEITH SMITH”

 

19.      Mr Smith’s evidence was that the letter was phrased in this way and in particular paragraph 9 of the letter was phased in such a way so that the claimant would not be disallowed benefit when she applied to the Social Security Agency, as it might be if it was simply said that she had resigned her job.  No independent evidence that the claimant would actually have been disallowed benefit if she resigned due to illness was adduced by the respondents. 

 

20.      The claimant agreed that at the meeting Mr Smith had told her that the business could not keep her job open for up to two years and he had also indicated that when she recovered from her injuries, the business would consider an application for any new position which may be available at that time. 

 

21.      The claimant’s evidence was that she was very distressed when she received the email of 5 May.  She and her husband did not entirely understand the language regarding termination of her employment and had to look it up in the dictionary.  She said she had been distressed to learn that her employment had ended.  The claimant said she was not able to sleep at night for the first few days after she received the letter and she had some severe headaches as a result.  When she came out of the meeting it had been her impression that the meeting had gone well, that she would get help with seeking benefits and she thought she was still employed.

 

22.      It was only when the claimant went to consult her solicitor in relation to a personal injury claim arising out of her road traffic incident and explained the position in relation to her work, that the solicitor advised her she should pursue the matter further.  On 19 June 2014 the claimant’s solicitor wrote to the respondents, setting out a claim of unfair dismissal and unlawful discrimination on grounds of disability.  Following that, Mr Smith sent the claimant a further email dated 24 June 2014 which read as follows:-

 

                        “Dear Alex

 

                        I previously wrote to you on 5 May 2014 following your casual encounter with Pamela Currie when you advised her you would be unlikely to be fit to return to work for some considerable time.  I recall in detail our conversation I know I still have to write to you to formalise your arrangements.

 

                        I would like to invite you to a meeting to discuss your position in a formal setting, the purpose of the meeting will be to discuss your availability to return to work, any changes in your circumstances from we last met and to ensure you receive all of your entitlements to avoid unlawful deductions from your wages. 

 

                        At this meeting you are entitled to be accompanied by a work colleague or TU representative.

 

                        Can you please advise me when you will be available to meet to take these matters forward?

 

                        Kind regards.

 

                        KEITH SMITH”

 

23.      A couple of follow up emails in relation to this matter were also sent, but the claimant did not reply.  It was the claimant’s evidence that she felt that the respondents were trying to play some sort of game.  She found it very confusing that the respondents appeared to have terminated her contract and were then writing to her about coming back to work.  The claimant did not have any further meeting with Mr Smith or any representative of the respondents on the advice of her solicitor.

 

24.      On 3 February 2015 Mrs Currie sent a letter to the claimant’s solicitors enclosing a cheque for a week’s pay in lieu of notice and payment for holiday pay due to the claimant.  It was confirmed by the claimant’s representatives that this cheque was for the correct amount and so there was no further claim being pursued in relation to holiday pay or notice pay. 

 

THE RELEVANT LAW

 

25.      We received written submissions from both parties, which we have attached to this decision for ease of reference.

 

Dismissed or resigned?

 

26.      The claimant alleged that she was dismissed by the respondents at the meeting of 28 April 2014 or by the emailed letter of 5 May 2014 sent to her by Mr Smith on behalf of the respondents.  The respondents alleged that the claimant resigned, and had given notice of her resignation when she spoke to Mrs Currie on 23 April 2014.  The position was confirmed, they said, at the meeting with Mr Smith on 28 April, and the claimant’s week’s notice expired on 30 April.

 

27.      The difficulty in this case is that, at the time of the two meetings on 23 and 28 April, neither party used the words “resign” or “dismiss”.  Where there is a dispute over whether the claimant resigned or was dismissed, the first question to consider is whether the words used are clear and umambiguous.  In Sothern v Franks Charlesly and Co [1981] IRLR 278 it was confirmed that the words, “I am resigning” were unambiguous and meant, “I am resigning now!”  However, where the words used are ambiguous, the court should ask how they would have been understood by a reasonable listener in the circumstances.  This approach was approved by the Court of Appeal for England and Wales in Willoughby v CF Capital PLC [2011] EWCA Civ 115 where Rimer LJ noted that:

 

                        “the principles of contract law ordinarily require that a person’s intentions are ascertained not by reference to subjective intentions but objectively, by reference to how a reasonable man would interpret them”.

 

28.      Generally speaking, once notice is given, it cannot be withdrawn without the consent of the employer.  In Sothern it was noted that there may be “special circumstances” which should make an employer satisfy himself that the employer really did intend to resign.  In Martin v Yeoman Aggregates Ltd [1983] IRLR 49 Kilner Brown J noted the difficulty of reconciling the “special circumstances” exception with the principle that such notice cannot be unilaterally be retracted or withdrawn.  He continued:

 

                        “In my judgment, the true nature of the exception is rather that it is one in which the giver of notice is afforded the opportunity to satisfy the recipient that he never intended to give it in the first place - that, in effect, his mind was not in tune with his words.”

 

29.      The sort of special circumstances identified in case law may include actions or words expressed in the heat of the moment, where someone is under extreme pressure or where the intellectual makeup of an employee is relevant.

 

Unfair dismissal

 

30.       The right not to be unfairly dismissed is set out in Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).  Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides as follows:

 

“130      (1)     In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

 

                                   (a)       the reason (or, if more than one, the principal reason) for the dismissal, and

 

                                   (b)       that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held;

 

                        (2)       A reason falls within this paragraph if it -

 

                                   (a)       relates to the capability or qualifications of the employee for performing work of a kind which he was employed by the employer to do,

 

                                               (b)       relates to the conduct of the employee,

 

                                               (c)       is that the employee was redundant, or

 

                                               (d)       is that the employee could not continue to work in the position which he held without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under a statutory provision …”

 

31.       In relation to the issue of procedural fairness, the appropriate provisions are to be found in Article 130A which provides as follows:-

 

“130A  (1)       An employee who is dismissed shall be regarded for the         purposes of this Part as unfairly dismissed if -

 

                                   (a)       one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (dismissal and disciplinary procedures) applies in relation to the dismissal,

 

                                   (b)        the procedure has not been completed, and

 

                                   (c)       the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements.

 

                        (2)       Subject to paragraph (1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.

 

                        (3)       For the purposes of this Article, any question as to the application of a procedure set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003, completion of such a procedure or failure to comply with the requirements of such a procedure shall be determined by reference to regulations under Article 17 of that Order.”

 

32.       The statutory disciplinary and dismissal procedures set out in Schedule 1 of the 2003 Order comprise three stages: a letter from the employer to the employee, setting out the alleged misconduct or reason for possible dismissal and inviting the employee to a disciplinary meeting at which he is entitled to be accompanied; the disciplinary meeting at which the employee is entitled to be heard and to reply to the allegations against him; a written decision to the employee and if appropriate, the right to appeal the decision.

 

33.      Article 17(3) of the Employment (Northern Ireland) Order 2003 makes provision for the uplift of awards in cases to which the statutory procedures apply, but they have not been followed due to the failure of the employer.  The tribunal should increase the award by 10% and may, in situations where it considers it just and equitable to do so, increase it by up to 50%.

 

34.      The legislation in relation to awards for unfair dismissal is set out at Article 152 and following of the 1996 Order which sets out provision for the calculation of the basic award and compensatory award.  Articles 154(1A) and (1B) provide that:-

 

                        “Where -

 

 

(a)     an employee is regarded as unfairly dismissed by virtue of Article 130ZG or 130A(1) (whether or not his dismissal is unfair or regarded as unfair for any other reason);

 

(b)     an award of compensation falls to be made under Article 146(4); and

 

(c)     the amount of the award under Article 152(1(A)) [the basic award] ... is less than the amount of four weeks’ pay,

 

            the industrial tribunal shall, subject to paragraph (1B), increase the award under Article 152(1)(a) to the amount of four weeks’ pay.

 

(1B).   An industrial tribunal shall not be required by paragraph (1A) to increase the amount of an award if it considers that the increase would result in injustice to the employer”.

 

35.      On the guidance given by the Northern Ireland Court of Appeal in Brinks Ireland Ltd v Hines [2013] NICA 32, if a tribunal decides it is appropriate to award a statutory uplift under Article 17(3) of the 2003 Order, it should spell out clearly its reasons for so deciding and for its decision on which percentage uplift should be applied.

 

36.      The other issue which the tribunal must consider, if it finds that the claimant was unfairly dismissed, is whether the tribunal should properly apply a Polkey reduction to the compensation payable for unfair dismissal.  The guidance in relation to these issues was set out in Software 2000 Ltd v Andrews [2007] IRLR 568 and has subsequently been affirmed in hearings before the Employment Appeal Tribunal in Hill v Governing Body of Great Tey Primary School (UKEAT/0237/12/SM and Dev v Lloyds TSB Asset Finance Division Ltd (UKEAT/0281/13/RM).  In the Brinks decision, Lord Justice Girvan (following the approach in the Andrews case) indicated that:-

 

            “if an employer seeks to contend that the employee would or might have ceased to be employed in any event if a fair procedure had been followed or alternatively would have not have continued in employment indefinitely it is for the employer to adduce relevant evidence on which it wishes to rely.  Where the nature of the evidence which the employer adduces or on which it seeks to rely is unreliable the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on the evidence can be made.” 

 

It was stressed in Hill at paragraph 24 of the judgment that:-

 

                        “A “Polkey reduction” has these particular features.  First, the assessment of it is predictive: could the employer fairly dismiss and, if so, what were the chances that the employer would have done so?  The chances may be at the extreme (certainty that it would have dismissed, or certainty it would not) though more usually will fall somewhere on the spectrum between these two extremes.  This is to recognise the uncertainties.  A tribunal is not called upon to decide the question on balance.  It is not answering the question what would have been done if it were the employer.  It is assessing the chances of what another person (the actual employer) would have done ... the tribunal has to consider not a hypothetical fair employer, but has to assess the actions of the employer who is before the tribunal, on the assumption that the employer would this time have acted fairly though it did not do so beforehand.”

 

37.      As regards dismissal for a capability-related reason (as in this case), the relevant guidance is set out in the decision of the Court of Session in BS v Dundee City Council [2014] IRLR 131CS, as follows:-

 

                        “27.  Three important themes emerge from the decisions in Spencer and Daubney.  First, in a case where an employee has been absent from work for some time owing to sickness, it is essential to consider the questions of whether the employer can be expected to wait longer.  Secondly, there is a need to consult the employee and take his views into account.  We would emphasise however that this is a factor that can operate both for and against dismissal.  If the employee states that he is anxious to return to work as soon as he can and hopes he will be able to do so in the near future, that operates in his favour; if, on the other hand he states that he is no better and does not know when he can return to work, that is a significant factor operating against him.  Thirdly, there is a need to take steps to discover the employee’s medical condition and his likely prognosis, but this merely requires the obtaining of proper medical advice; it does not require the employer to pursue detailed medical examination; all that the employer requires to do is to ensure that the correct question is asked and answered.”

 

38.      It is also relevant to note that the fact that the claimant’s incapacity arises from a disability under the 1995 Act does not mean that a dismissal for a reason related to this must be unfair (Royal Liverpool Children’s NHS Trust v Dunsby [2006] IRLR 351EAT).

 

Disability Discrimination

 

39.      The tribunal has to consider whether the claimant is “disabled” within the meaning of the Disability Discrimination Act 1995 (as amended) (“the 1995 Act”) and whether she was discriminated against on grounds of her disability.  In relation to the issue of disability the Disability Discrimination Act 1995 (as amended) provides at Section 1:-

 

“1.(1)   Subject to the provisions of Schedule 1, a person has a disability for the purpose of this Act if he has a physical or mental impairment which has substantial and long term adverse effect on his ability to carry out normal day-to-day activities.

 

            (2)        In this Act “disabled person” means a person who has a disability.

 

40.      Schedule 1 to the 1995 Act provides as follows:-

 

                        “Long-term effect

 

                        2(1)  The effect of an impairment is a long-term if -

 

(a)     It has lasted at least 12 months;

 

(b)     The period for which it lasts is likely to be at least 12 months; or

 

(c)     It is likely to last for the rest of the life of the person affected.

 

(2)     Where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur ...

 

            Normal day-to-day activities

 

4(1)   An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following -

 

(a)     Mobility;

(b)     Manual dexterity;

(c)     Physical co-ordination;

(d)     Continence;

(e)     Ability to lift, carry or otherwise move everyday objects;

(f)      Speech, hearing or eyesight;

(g)     Memory or ability to concentrate, learn or understand; or

(h)     Perception of the risk of physical danger ...”

 

41.      Discrimination is defined under Section 3A(1) of the 1995 Act as amended as follows:-

 

                        “3A(1) For the purposes of this Part a person discriminates against a disabled person if -

 

                     (a)     For a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and

 

                     (b)     He cannot show that the treatment in question is justified ...

 

(3)     Treatment is justified for the purposes of sub-section (1)(b) if, but only if the reason for it is both material to the circumstances of a particular case and substantial;

 

(4)     But treatment of a disabled person cannot be justified under sub-section (3) if it amounts to direct discrimination falling within sub-section (5).

 

(5)     A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person”.

 

“Employers: discrimination and harassment

 

4(2)     It is unlawful for an employer to discriminate against a disabled person whom he employs ...


(d)        by dismissing him, or subjecting him to any other detriment.”

42.      In considering whether a person falls within the definition of “disability” set out in the 1995 Act, the relevant test is set out in Goodwin v Patent Office [1999] IRLR 4 as endorsed in subsequent decisions of the Court of Appeal in England and Wales in Lewisham v Malcolm [2008] 2WLR 369 and Lalli v Spirita Housing Ltd [2012] EWCA Civ 497.  It is important to note that the adverse effect on a person’s ability to carry out day-to-day activities must be considered in the light of what they cannot do, or can only do with difficulty (Aderemi v London and SE Railway Limited (UKEAT/0316/12/KN) rather than what they can do.  Whether an adverse effect is “substantial” or not may vary according to the time at which the assessment is made and the period over which it is considered.  It is clear however that in order to considered as a “substantial” adverse effect, the effect must be more than minor or trivial (See Goodwin).

 

43.      Whether an adverse effect is substantial or not may vary according to the time at which the assessment is made and the period over which it is considered.  In McDougall v Richmond Adult Community College [2008] IRLR 227, the Court of Appeal in England and Wales clarified that “whether an employer has committed a wrong ... must be judged on the basis of the evidence available at the time of the decision complained of”.  It has also been confirmed by the EAT that the time at which it must be decided whether a claimant satisfies the statutory definition of being disabled is the date of the alleged discriminatory treatment.  This is of particular relevance if the disability alters over time.

 

44.      As to the severity of the impairment at issue, the tribunal has to exercise its judgment in deciding what is, essentially a question of fact and degree.  In Paterson v Metropolitan Police Commissioner [2007] IRLR 763, Elias J considered that the correct approach for deciding on the severity of the disability condition involved an inquiry as to “how the individual carries on the activity compared with how he would do it if not suffering the impairment.  If, a difference is more that the kind of difference one might expect taking a cross-section of the population, then the effects are substantial.”

 

45.      In Goodwin it was stated that:

 

“what is a day-to-day activity is best left unspecified: easily recognised, but defined with difficulty.  If it is not directed to a person’s own particular circumstances either at work or home ... equally the fact that a person had arranged their home to accommodate their disability would make enquires as to how they managed at their particular home not determinative of the issue.” 

 

46.      However the case law of the European Court of Justice under Directive 2000/78/EC (which is to be taken into account in dealing with issues of disability), takes a different approach.  In Chacón Navas v Eurest Colectividades SA C-1305 [2006] IRLR 706 ECJ, “disability” was held to cover those who have a “limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life.”  The Court of Justice of the European Union in HK Danmark, acting on behalf of Ring v Dansk almennyttigt Boligselskab C-355/11 [2013] IRLR 751 considered that in the light of the binding U.N. Convention on the Rights of Persons with Disabilities this definition was correct.  Although consideration of the impact of the ability to participate in professional life is not reflected in any of the definitions of disability found within domestic law, in Paterson v The Metropolitan Police Commissioner [2007] IRLR 763, the EAT considered that the correct reading of the 1995 Act was to consider the impact on professional life in accordance with Chacón Navas. 

 

47.      In Law Hospitals NHS Trust v Rush [2001] IRLR 611, the Court of Session accepted that it was right for a tribunal to have regard to how an applicant could carry out duties at work in deciding whether she was within the Disability Discrimination Act, but found, on the facts, that the decision in the instant case that the claimant was disabled should not be disturbed.  Harvey on Industrial Relations and Employment Law comments at Division L paragraph 151 as follows:-

 

                        “The Rush decision is, with respect, right as a matter of common sense as well as in law.  It is obvious that some (though not all) of the things done at work would be the same as the things done in home - depending on the job, tasks such as bending and cleaning and using utensils may be common to work and home.  It would be odd if, just because they were done in a work context, they could not be considered in deciding whether the definition of disability was met.  The significance of Paterson is the EAT’s acceptance that the disability (dyslexia) which affected the claimant’s ability to progress in his career was inevitably a condition which had a substantial effect on day-to- day activities.”

 

48.      In considering whether the effects of an impairment are “long-term”, the tribunal has to consider the information which was available at the time when the alleged discrimination occurred.  If the disability has not already lasted for at least 12 months under paragraph 2(b) of Schedule 1 of the 1995 Act, the relevant authority is SCA Packaging Ltd v Boyle [2009] UKHL 37 [2009] IRLR 746. Lady Hale in that case warned that the Guidance to the Disability Discrimination Act was of assistance, but could not replace the function of the courts in statutory interpretation.  The 2006 Guidance to the DDA at paragraph B7 had suggested that the relevant test was whether it is “more probable than not” that the substantial adverse effect was likely to last for more than 12 months.  Lady Hale suggested that the Guidance on this point “appeared to have got “likely” and “probable” the wrong way round.  It is probable that an event will happen if it is more likely than not that it will do so.  Probability denotes a degree of likelihood greater than 50%.  Likelihood on the other hand is a much more variable concept.”

 

49.      In considering whether or not a person has been discriminated against on grounds of their disability we must consider the issue of less favourable treatment and whether or not the less favourable treatment (if established) was on grounds of disability.  The claimant must show that she has been less favourably treated than a comparator (whether actual or hypothetical) who has similar or the same characteristics apart from the disability from which she suffers. 

 

50.      The ruling of the House of Lords in London Borough of Lewisham v Malcolm [2008] UKHL 43 is still the leading case in Northern Ireland as regards identifying comparators in disability cases, although overtaken by the Equality Act 2010 in Great Britain.  Lord Neuberger, in considering the issue of comparators, considered the wording of S.3A(1) (a) of the 1995 Act (see paragraph 41 above) and whether the words “that reason” in the phrase “others to whom that reason does not or would not apply” refers back to the reason which relates to the disabled person’s disability (a narrow construction) or whether “that reason” simply refers back to “the reason” (a wide construction).  So identifying the comparator involves stripping out the disability, but not the reason for the treatment, and there is only discrimination if a non-disabled person to whom the same reason would apply would be accorded more favourable treatment (see Harvey Division L paragraph 262).  In Malcolm, the claimant, who was schizophrenic, was evicted from his flat (owned by the Borough of Lewisham) because he had sublet the flat contrary to the tenancy agreement.  He argued his breach of tenancy had been caused by his schizophrenia, which had impacted on his judgment.  The House of Lords held the question to consider was this: if a non-disabled secure tenant had sublet, would he have been evicted?

 

51.      It is clear from the case law including Chief Constable of West Yorkshire v Vento [2001] IRLR 124 that comparing the treatment of those in non-identical but not wholly to dissimilar cases is a permissible means of constructing a hypothetical comparator and judging how he or she would have been treated.  It is for the claimant to show that the hypothetical comparator would have been treated more favourably.  In doing so, the claimant may invite the tribunal to draw inferences from all relevant circumstances, but it is still a matter for the claimant to ensure that the tribunal is given the primary evidence from which the necessary inferences can be drawn.  (See Harvey, Division L Paragraph 256).

 

52.      It is also clear from the established case law that it is for the claimant to prove her case.  The burden of proof in discrimination cases lies on the claimant to prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondents has committed an act of discrimination against the claimant which is unlawful under the 1995 Act.  The guidance set out in Igen Ltd v Wong and Others [2005] EWCA Civ 142 has specifically been approved and enlarged on by the Court of Appeal in Madarassy v Nomura International plc [2007] EWCA Civ 33; [2007] IRLR 246.  In that case Lord Justice Mummery confirmed that the words “could conclude” in the Burden of Proof Regulations must mean “a reasonable tribunal could properly conclude” from all the evidence before it that discrimination has occurred.  Madarassy stressed that a difference in status and a difference of treatment was not sufficient to reverse the burden of proof automatically.  In Laing v Manchester City Council [2006] IRLR 748, a claim of race discrimination, Elias P sounded a note of caution against taking from Igen a mechanistic approach to proof of discrimination.  He stated as follows:-

 

                        “...What must be borne in mind by a tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination.  The shifting in the burden of proof simply recognises that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the tribunal on the balance of probabilities that certain treatment had been by reason of race (Paragraph 71 of the judgment) ...

 

                        “No doubt in most cases it will be sensible for a tribunal formally to analyse a case by reference to the two stages.  But it is not obligatory on them formally to go through each step in each case.  As I said in Network Rail Infrastructure v Griffiths-Henry [2006] IRLR 865 ...  it may be legitimate to infer that a black person may have been discriminated on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected ...”

 

53.      It has sometimes been suggested that it would be helpful to approach a situation where direct discrimination is said to exist by adopting a two stage test: first to ask whether there was less favourable treatment and secondly, to ask whether it was on grounds of disability (as in this case).  In other words, the tribunal should ask the “reason why” question after less favourable treatment has been proven to exist.  If an actual comparator can be identified this will often be a sensible approach but it may not always be correct.  It has also been pointed out by Lord Nicholls in Shamoon v The Chief Constable of the RUC [2003] UKHL 11 that sometimes it will not be possible to decide whether there is less favourable treatment without deciding the “reason why”.  As Lord Nicholls observed in Shamoon (see paragraph 8 of the judgment) the question of less favourable treatment than an appropriate comparator and the question of whether that treatment was on the relevant prohibited ground may be so intertwined that one cannot be resolved without at the same time deciding the other.  As Lord Justice Mummery observed in Aylott v Stockton and Tees Borough Council [2010] EWCA Civ 910, there is essentially a single question: did the claimant on the proscribed ground receive less favourable treatment than others?  He went on to say as follows:-

 

                        “Once it is found that the reason for the treatment was a proscribed one, there should be no difficulty in deciding whether the treatment on that ground was less favourable than the treatment that was or would have been afforded to others.  If the evidence establishes that the reason for the treatment is the claimant’s disability, then it will usually follow that the hypothetical comparator would not have been treated in the same way and there will be discrimination.”  (See paragraph 41 of the judgment).

 

REASONS AND DECISION

 

 

Was the claimant dismissed or did she resign?

 

54.      We have considered carefully the evidence before us in relation to this matter and also the submissions of the parties.  We are satisfied on the balance of probabilities that the claimant had told both Mrs Currie and Mr Smith that she had been seriously injured in a car accident in December 2013 and that her doctor had told her that it may be up to two years before she was able to resume work.  At the time of these conversations, it was approximately four months after the accident, so the claimant was still in the relatively early stages of recovery from the accident.  It is not clear to us whether, as the claimant says, she made absolutely no reference at all to leaving but it is clear that she did say that she would not be able to return to work for up to two years.  Either way, it is clear that she did not use the word “resign” and so there is a certain degree of uncertainty about what she actually intended.  Mrs Currie certainly took it that she intended to resign, but the question we have to consider is what a reasonable person would have understood from the discussion? 

 

55.      It is our view that a reasonable person in these circumstances would have clarified with the claimant exactly what she intended and what she meant.  Given that the claimant’s first language was not English and that she had recently suffered a very severe accident, clarification would seem entirely reasonable to us, indeed necessary.  We believe that the respondents handled this matter poorly, in that Mr Smith, at his meeting with the claimant, seems to have assumed that she was leaving, rather than clarifying with her exactly what she intended to do.  The claimant’s comment in cross-examination was that when Mr Smith mentioned benefits to her and giving her help she felt that this was all good and she was content that she was getting this help.  She said she did not understand, until she received the email of 5 May, that her employment had ended.  In the circumstances of this particular case, where the claimant’s first language was not English and where she had suffered a very serious accident a few months before, we believe that there was a responsibility on the employer to be satisfied that the employee really did intend to resign. 

 

56.      While we appreciate that the respondents did not have exact details of the injuries sustained by the claimant, and their impact on her memory and capacity for understanding in particular, she had told them that her doctor said that it may be two years before she was able to resume work, which indicates the injuries were serious.  She had also shown them pictures of the car crash on the internet after which Mr Smith noted that they all agreed that she was lucky to be alive.  In such circumstances it seems to us it would be proper for an employer to proceed with caution.  The employer here seems to have assumed that not being able to return for up to two years equalled resignation, but that is not necessarily so.  Both Mr Smith and the claimant agreed he had told her that the respondents could not hold her job open for that period of time (two years), which in our view is more consistent with a dismissal than a resignation.  Given that Mr Smith took upon himself to discuss Social Security Benefits with her, it would in our view have been important that he at least give her accurate information, including explaining that certain benefits would only be paid if she was not working.  The final paragraph of Mr Smith’s email of 5 May also refers to termination of the claimant’s employment, not her resignation.  Mr Smith’s explanation for this - that he intended to word the letter so the claimant would not be disallowed benefits - is in our view, implausible and unconvincing.  In all the circumstances we are satisfied that the claimant was dismissed on 28 April 2014 on grounds of her inability to attend work for up to two years and that she did not resign.

 

57.      The respondents in their submissions suggested that the claimant had been provided with a further opportunity to meet the respondents’ representative to discuss changes in her circumstances and her ability to return to work following receipt of the letter from Mr Smith in June 2014.  This letter however was only sent after an initial letter of claim was sent by the claimant’s solicitor to the respondents, alleging unfair dismissal and disability discrimination.  The actual terms of Mr Smith’s letter to the claimant in June were also in our view unhelpful.  They did not, for example set out that there had been any sort of misunderstanding, or that the respondents had been under the impression that the claimant had resigned.  Had the letter set that out clearly, and then given an opportunity for the claimant to have a discussion with the respondents about possible resumption of work, we would have seen that in a different light.  However the wording of that letter appears to us to have been an attempt by the respondents to “cover their backs”, by inviting the claimant to come to a meeting to discuss her ability to return to work.  In light of all of that, it is not surprising that the claimant was reluctant to attend any such meeting.

 

 

 

 

Was the claimant unfairly dismissed?

 

58.      The respondents’ position throughout has been that the claimant was not dismissed but that she resigned.  The respondents did not make any submissions suggesting that the claimant had not been automatically unfairly dismissed contrary to Article 130(1) of the 1996 Order (see paragraph 30 above).  It is clear that there was a meeting with the claimant, but there was no formal letter referring to her resignation and/or dismissal, and equally there was no right of appeal following the letter of 5 May.  It is our finding therefore that on the basis of the facts found above, that the claimant was automatically unfairly dismissed in that the statutory disciplinary and dismissal procedures under Article 130A(1) of the 1996 Order were not followed.

 

59.      The respondents did not set out detailed submissions on the issue of unfair dismissal nor did they lead much evidence in relation to this matter.  In their submissions they simply suggested if the tribunal found the claimant was dismissed, the respondents submitted that the claimant would have been dismissed on the grounds of capability or under inefficiency absence due to the fact that she had advised the respondents that she was unavailable for at least two years.  They go on to say that any reasonable employer would have dismissed in these circumstances.  They have not however provided any evidence of what steps would have been taken by the employer in this case.

 

60.      The claimant’s representative set out in their submissions that, effectively, the dismissal was unfair because the respondents had failed to take into account the likelihood of the claimant being able to return to work, the needs and resources of the employer and the impact (if any) of the claimant’s illness on the employer’s business.  The claimant’s representative suggested had the respondents sought medical evidence, they could have obtained Dr. Salisbury’s assessment that the claimant would have been in a position to return to work for light duties/phased return in March 2015, only 10 months after the meeting between the claimant and Mr Smith and this may have had the effect of changing the employer’s decision.  They also suggested this was a case where the claimant was clearly going to recover and it was not a case where the respondents would have had to hold her position open indefinitely and recovery was at all uncertain. 

 

61.      This is not however as clear as the claimant’s representative suggests.  First of all, Dr. Salisbury indicated in her witness statement that given the improvements in the claimant’s health and her desire to return to employment “she was likely to able to return to light duties/phased return to employment before March 2015 barring any other adverse events.”  In her evidence to the tribunal however Dr. Salisbury confirmed that she had not carried out any assessment of the claimant when she was discharged from the ABIRT team in December 2014 and that she had not carried out any further assessment of the claimant prior to the hearing in September 2015.  Although Dr Salisbury’s statement was given in July 2015, it is not clear what her assessment would have been had she been asked for a report in April/May 2014 when the claimant’s employment ended.  The claimant’s GP, on her own evidence, was reluctant to give any prognosis in April 2014.  If therefore the respondents had sought a medical report regarding the claimant’s return to work in May 2014, it seems likely there would still have been a considerable degree of uncertainty about when she could have returned to work. 

 

62.      When the claimant was asked whether she had been able to return to work, it was her evidence that although she had improved considerably, she still occasionally had dizzy spells and had problems with her balance.  She said that she believed she would presently be fit for light duties but could not lift anything heavy and that she had some difficulties with balance.  It was clear that she had not resumed work in March 2015 and although she had attended the Jobs and Benefits Agency earlier in 2015 to look for work and was due to start a part-time Leadership and Management course in October 2015, she did not present any evidence of jobs she had actually applied for in the interim.  It is not clear to us therefore that the claimant would actually have been fit to resume work in March 2015, or that she had made attempts to find other work in the meantime.  This does not reflect in any way on the claimant as an individual.  As we stated above, we found her to be a genuine witness who clearly wanted to resume work as soon as possible after a very serious accident.  It is simply not clear to us that she would have been fit to resume work in March 2015 as her representative suggests. 

 

63.      At the time of the meeting on 28 April 2014, the information which the respondents had was that the claimant was still seriously incapacitated following a major accident and that she may not be able to resume work for up to two years.  Even taking account of the fact that the two years would run from the date of the accident, and not the meeting, this meant that the claimant would probably not be able to resume work for approximately a year and a half.  No evidence was adduced before us as to the resources of the employer and whether or not they would have found it possible to accommodate someone being off on long-term sick for such a lengthy period of time.  On the basis of Mrs Currie’s comments about staffing levels, it seems reasonable to assume that the employer is a small employer.  The only information we have is the reference in the notes of the meeting of 28 April to Mr Smith having told the claimant that the employer could not keep her job open for this period of time. 

 

64.      We cannot speculate in the absence of firm evidence as to what the employer might have done in terms of changing the outcome.  We believe it is relevant however for us to take account of the fact that the employer could (and indeed, should) have sought medical advice in relation to the prognosis for the claimant’s return to work.  Referring to the questions set out in BS v Dundee City Council set out above (see para 37), we consider that in this case the employer could have been expected to wait longer before dismissing the claimant.  At the end of April 2014, the claimant had finished her statutory maternity leave, and so had only been “sick” for just over one month.  One could argue that the meeting on 28 April was a consultation meeting with the claimant, at which she said she could not return to work for up to two years, which would not have been particularly helpful to the claimant.  However, the third issue in BS, that of obtaining medical evidence and a likely prognosis for the claimant’s recovery, was completely ignored by the respondents.  This failure by the respondents was, in our view, unreasonable in all the circumstances and thus we find the claimant’s dismissal was also substantively unfair.  If the claimant’s GP was reluctant to give any prognosis in April/May 2014 because he wanted to see how the rehabilitation would work out (as the claimant had asserted), then it may have been the case that the employer could reasonably have decided to dismiss the claimant for incapacity in the summer of 2014.  We are concerned that we should not embark on a speculative exercise where no sensible conclusion can be reached.  As Lord Justice Girvan noted in the Brinks Ireland Ltd v Hines (see paragraph 36 above), it is for the employer to seek to contend that the employee would or might have ceased to be employed in any event if a fair procedure had been followed.  The respondents have adduced no evidence at hearing which would lead us to that conclusion.  We do not therefore consider it appropriate to make any Polkey reduction.

 

65.      That said, in deciding the level of compensation which we should award the claimant in this case, we believe it would be just and equitable to take into account the claimant’s rate of recovery, whether or not she would have been fit to return to work after her entitlement to statutory sick pay expired and the efforts that she has made to resume work in mitigation of her loss.  For the reasons set out at paragraph 57 above, we are not satisfied that the claimant would have been able to resume work in March 2015, and accordingly we make no award of compensation for the period after her entitlement to Statutory Sick Pay expired.  We consider however that the employer’s failure to observe the statutory dismissal and disciplinary procedures was considerable.  While there may have been a lack of communication in this case, it would have been easily rectified by the respondents clarifying the claimant’s intentions at the meeting on 28 April 2014.  As it was, the meeting was not clearly identified as a meeting about possible dismissal/termination and there was a complete failure to provide any appeal.  These are a serious breach of the procedure and we consider than an uplift of 25% is appropriate in these circumstances.

 

Compensation for unfair dismissal

 

Basic award

 

Gross wage £280.00 per week     

 

Basic award uplifted under Article 154(1A) of the

1996 Order to 4 weeks                                                                                           

£280 x 4                                                                                                                     £1,120.00                                                                 

Compensatory award

 

Statutory sick pay £87.55 per week

 

28 weeks from 28 April 2014

 

28 April - 10 November 2014

 

28 x £87.55 =                                                                                                            £2,451.40

 

Loss of statutory rights                                                                                            £   500.00

 

Uplift of 25%                                                                                                             £   737.85

 

Total Award:                                                                                                              £4,809.25

 

 

 

 

 

Disability Discrimination

 

(1)       Was the claimant a disabled person?

 

66.      In this case the respondents have argued that the claimant was not a disabled person within the meaning of Section 1 of the Disability Discrimination Act 1995.  The claimant on the other hand contends that she was.  We have considered carefully the case law set out above and the evidence we have heard.  There is no doubt that the claimant suffered a dreadful accident in December 2013 and had very severe injuries which necessitated a lengthy hospital stay.  The physical injuries which she sustained (including a fractured sternum, broken ribs and internal injuries) were compounded by a head and brain injury which had a huge effect on her ability to look after herself, her young baby and her home for some time.  The claimant and her husband described in some detail the difficulties that she experienced and which are set out at paragraphs 7, 8, 9 and 10 above.

 

67.      For the purposes of the disability discrimination legislation, we have to consider whether the claimant had suffered a physical or mental impairment which had a substantial adverse and long-term effect on her ability to carry out normal day-to-day activities as defined in the legislation.  The respondents’ representative seemed to suggest in submissions that the claimant did not suffer a “long-term” impairment, in that her condition had not lasted for at least 12 months, the period for which it lasted was not likely to be at least 12 months or it was likely to last for the rest of the life of the person affected.

 

68.      We note that the respondents’ submissions focus only on whether the claimant had established a long-term effect and also suggest that the claimant did not satisfy the requirements of paragraph 2(2) of Schedule 1 of the 1995 Act which states:-

 

“where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur”.

 

69.      It is clear to us from the evidence given by Dr. Salisbury, the claimant and her husband that from December 2013, the claimant was severely incapacitated by injuries sustained in a road traffic accident.  We are satisfied that the claimant had suffered a substantial adverse effect on amongst other things, her mobility and her manual dexterity (her grip and her hand strength had been severely reduced).  Her ability to lift, carry and otherwise move everyday objects was also affected in that she could not lift her baby, and at the date of the hearing she indicated that she still could not lift heavy things.  Her ability to concentrate, learn or understand had been affected according to Dr. Salisbury in that she had reduced memory, reduced attention and reduced attention and she was still suffering from poor balance, dizziness and headaches at the date of the hearing which affected her memory and physical co-ordination.  We are satisfied, on the basis of Dr. Salisbury’s assessment the claimant would have been likely to be fit to return to light duties by approximately March 2015, that the claimant suffered a long-term physical impairment which had a substantial adverse effect on her ability to carry out day to day activities at least from the date of her accident in December 2013 until March 2015.  We are conscious that the claimant indicated that, while she had seen substantial improvements in her health, she still suffered from dizziness and headaches on occasion and had some difficulties with her balance.  We did not have any detailed evidence of how this presently impacts on her day-to-day life and so we cannot say that she suffered a “substantial” adverse effect on her ability to carry out day-to-day activities from March 2015 onwards.  We are however satisfied for the reasons set out above that the claimant was a disabled person at the date of the alleged discrimination in April 2014.

 

(2)       Did the respondents directly discriminate against the claimant on grounds of her disability?

 

70.      As we have set out above (see paragraphs 49 and following) it is for the claimant to show that she has been less favourably treated than a comparator who has the same or similar characteristics as her, apart from the disability from which she suffers.  Ms Campbell suggested in her submissions that the characteristics for a hypothetical comparator would be as follows:-

 

(a)       An employee in the same role as the claimant.

 

(b)        An employee with similar length of service as the claimant.

 

            (c)        An employee with similar abilities and experiences as the claimant.

 

(d)       All characteristics materially similar to the claimant, her contract of employment and ability to work except for the claimant’s disability.

 

71.      At the hearing, when Ms Campbell mentioned these characteristics, the tribunal invited her to consider the relevance of any comparator’s inability to work for a period of up to two years, but she did not refer to this in her submissions.  Ms Campbell went on to assert in her submissions:-

 

“if the tribunal is to find that the claimant was dismissed, it is submitted that the respondents convened the meeting as a result of the claimant telling the respondents that she was suffering from a disability and the claimant’s employment was terminated five days later.  The tribunal is invited to draw an inference from this, in the absence of an adequate explanation, that the claimant was dismissed only because she was disabled and for no other good reason.”

 

72.      She alleged that the respondents’ failure to request or consider medical evidence, and be properly informed of the situation, was an act of disability discrimination and evidence of less favourable treatment as the employer failed to properly consider or explore the reasons for the claimant’s absence from work and the circumstances which led to it.  The claimant’s representative asserted there was no attempt properly to explore the claimant’s ability to return to work, whether the employer could hold the job open for that time or what measures could be put in place.

 

73.      We are concerned that the claimant’s representative, in her submissions, has conflated the tests for unfair dismissal and disability discrimination (see Momouthshire County Council v Harris UKEAT/0332/14/DA).  We consider that the issues she raised are relevant in the context of an unfair dismissal claim, and we have addressed them above at paragraphs 60-64 in that context.

 

74.       The evidence before us on this issue is sparse.  The claimant had asserted to her             employer in April 2014 that she would not be able to return to work for a lengthy period of time and that her doctor had said it may be up to two years before she        could resume work.  On this basis, the employer indicated to the claimant that it          would not be possible to hold her job open for that period of time.  This was the only information which the respondents had at that time.  They had no detailed          information regarding the nature of the claimant’s injuries or how they impacted on her ability to work at the time, they simply had the assertion from the claimant that             she would not be able to return for up to two years.  The letter of 5 May 2014 sent            by Mr Smith to the claimant says at paragraph 9:-

 

                        “Finally I said I would write to you to confirm that unfortunately your employment contract with Currie Spar was now terminated as a result of your inability to attend work for up to two years.”

 

75.      The claimant has not, in our view, proven facts from which the tribunal could conclude that she has been less favourably treated than a hypothetical comparator on grounds of her disability.  The hypothetical comparator in this case in our view would be someone in a similar job to the claimant and with similar experience and service who is unable to attend work for up to two years, for a reason other than disability.  Thus it could be someone who was not available because of caring responsibilities or because of an illness which was not a disability.  There was no evidence adduced by the claimant to show that a hypothetical comparator would have been treated more favourably than her, and the claimant’s representative failed to cross-examine the respondents’ witnesses on the point in any detail.  Ms Campbell asserted in submissions that because the claimant told the respondents that she was disabled, her employment was terminated five days later.  In fact the claimant did not use the term disabled when she spoke to the respondents, either when she spoke to Mrs Currie on 23 April or when she spoke to Mr Smith on 28 April.  On both occasions she told them that she had had a bad car accident and that she would not be able to return to work for up to two years, but she did not go into any detail regarding the nature and extent of her injuries on the basis of the evidence before us.  So the employer had no firm evidence, apart from the claimant’s assertion, of the nature and extent of her incapacity, how long it was likely to last or indeed whether the claimant was “disabled” within the statutory definition.  On that basis the respondents terminated the claimant’s employment for incapacity, as set out in the email of 5 May.  We have already set out above our finding in relation to unfair dismissal above.

 

76.      Bearing in mind the test which we have to apply for disability discrimination as set out in London Borough of Lewisham v Malcolm (see paragraph 48 and following above), we believe that the question we have to ask in this case is this: if a non-disabled employee of the respondents had been unable to attend work for up to two years, would he or she have been dismissed?  We believe that the answer is yes. 

 

77.      The respondents is, on the basis of the information before us, a relatively small employer which had indicated to the claimant that it would not be possible for them to keep her job open for up to two years.  The claimant has not adduced any evidence to show that a non-disabled person who was unable to work for up to two years would have been treated more favourably than the claimant.  In our opinion the claimant has not proven facts from which a reasonable tribunal could properly conclude in the absence of an adequate explanation that the respondents has committed an act of discrimination against the claimant which is unlawful under the 1995 Act.  For these reasons the claim of unlawful disability discrimination is dismissed.  This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

           

 

 

Employment Judge:

 

 

Date and place of hearing:       21-23 September 2015, Belfast.

 

 

Date decision recorded in register and issued to parties: