Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    1731/14

 

 

CLAIMANT:                      Andrew Munn

 

 

RESPONDENT:                Chemtest Ireland Ltd

                                       

 

DECISION

 

The decision of the tribunal is that:-

 

1.       The claimant was automatically unfairly dismissed by the respondent on grounds of having made a protected disclosure under Article 134 of the Employment Rights (Northern Ireland) Order 1996 and we order the respondent to pay to the claimant the sum of £28,722.30, as set out at paragraphs 82-84 below.  

 

2.       The claimant suffered detriment as a result of having made a protected disclosure under Article 67 of the Employment Rights (NI) 1996.                      .

 

3.       The respondent failed in its duty to make reasonable adjustments for the claimant on grounds of his disability (namely that he suffers from bipolar disorder) as a result of which the claimant suffered detriment and injury to feelings. 

 

4.       We order the respondent to pay to the claimant the sum of £9.375.00 in respect of injury to feelings in respect of our findings at paragraphs 2 and 3 above, as calculated at paragraph 87 below, together with interest of £584.01.

 

5.       The claimant’s claim of direct discrimination on grounds of his disability has not been made out and accordingly, that claim is dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge:         Employment Judge McCaffrey

 

Member:                          Mr I Atcheson

 

 

Appearances:

 

The claimant was represented by Mr T Warnock, Barrister-at-Law instructed by Worthingtons Solicitors.

 

The respondent was represented by Mr R Fee, Barrister-at-Law instructed by O’Reilly Stewart Solicitors.

 

ISSUES

 

1.       This claim arose in context of the claimant’s dismissal by the respondent on 28 July 2014 when the claimant had been working for the respondent for some seven months.  The claimant alleged that he was dismissed because he  had made a number of protected disclosures under the public interest disclosure legislation and also that he had suffered a detriment contrary to Article 70B of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).  The respondent disputed this, asserting that the claimant had been dismissed because of his failure to follow company policies in relation to notification of sickness and absence, and denying that he had suffered any detriment under Article 70B of the 1996 Order. 

 

2.       The claimant further asserted that he suffers from a disability namely bipolar disorder.  This was not disputed by the respondent and it was conceded that the claimant is a disabled person under the meaning of the Disability Discrimination Act 1995 (as amended) (“the DDA 1995”).  We have not gone behind this concession on the part of the respondent and for the purposes of this case, we do not need to investigate that issue further.

 

3.       The claimant’s claims under the 1995 Act were first, that the respondent should have put in place a reasonable adjustment to deal with his difficulties due to his disability.  Specifically, the claimant asserted that he should not have been dismissed, but that the respondent should have halted his appeal meeting when it was told of his bipolar disorder and an Occupational Health Report should have been sought to see whether the disciplinary charge related to his disability and to decide how best to deal with the claimant going forward.  In the alternative, the claimant argued that he had suffered direct discrimination on grounds of his disability when he was dismissed.

 

4.       The hearing commenced with a panel comprising of three members.  Unfortunately on the second day of hearing one of the panel had to withdraw due to unforeseen personal circumstances.  The parties were given the option of commencing the hearing afresh with a different panel, but opted to continue with a two member panel instead.

 

THE FACTS

 

5.       We heard evidence in this matter from the claimant, and on behalf of the respondent from Ms Ashleigh Greeves (who was the claimant’s line manager) and from Mr Kevin Hempson, Finance Director of Chemtest Holdings Ltd.  We received witness statements from each of the witnesses and they were also cross-examined before the tribunal.  A substantial number of documents were also opened to us in the course of the hearing.  On the basis of the evidence heard and the documents perused we make the following relevant findings of fact.  We have confined ourselves to the matters which we consider relevant to the determination of the issues in this case, although both parties introduced comments regarding matters which we do not consider wholly relevant.

 

6.       The claimant began his employment with the respondent on 6 January 2014.  He had applied for a post as a laboratory assistant but shortly after interview in December 2013, he was offered the post of Deputy Technical and Quality Manager and accepted.  The claimant confirmed that he held a foundation diploma in science and technology which was effectively a foundation course for a degree.  He had worked for seven years in the Microbiology Department of Northern Ireland Water as a scientific officer and had deputised for the Quality Manager from time to time.  He had also worked as an assistant scientist in the Forensic Science Laboratory for Northern Ireland for some five years.

 

7.       The respondent provides analytical services to external customers, such as hospitals and health boards.  A substantial part of the respondent’s business involves carrying out tests on samples from hospital premises to check on the risk of any infection and in particular the level of legionella.  It was confirmed to us in the course of the hearing that legionella can lead to Legionnaire’s disease and therefore a high level of legionella would be a matter for considerable concern.  The claimant made the point that samples were received from high dependency units and special care baby units where patients were particularly susceptible to infection.

 

8.       The respondent company is a subsidiary of Chemtest Holdings Ltd which is a company based in England.  The operation in Belfast had opened in April 2013 with Ms Greeves in charge as manager, managing a team of approximately 12 employees.  It was therefore a relatively recently opened business at the time when the claimant joined.

 

9.       In late February and early March 2014, the claimant started to notice some mould contamination appearing on samples for analysis.  In discussion with his manager it was agreed that an action plan needed to be put in place to remedy the situation.  The claimant’s concern about this was that he believed that it was increasingly difficult to provide accurate results from tests due to mould.  Each sample was checked three times over a ten day period.  By the time the sample was 10 days old he asserted that the mould was so bad that it was often covering 70%-80% of the petrie dish containing the sample.  The claimant also asserted that the presence of mould contamination affected the accuracy of the results.  The higher the level of mould contamination, the more difficult it was to provide an accurate result in relation to the levels of legionella in the customer’s water or plumbing system.  The claimant said that he approached Ms Greeves with a view to telling some of the customers of the problem, but she was reluctant to do this.  His evidence was that he had concerns “that we could miss something or that a member of the public could get ill or worse”.  He also said that some staff had started to complain that it was hurting their chests whilst breathing when they were inspecting samples.  Ms Greeves completely refuted the claimant’s comments and indicated that no staff had ever spoken to her in relation to chest pains.  The claimant also said he had suggested that there should be some changes and improvements made to the laboratory, namely changes to access and air conditioning which he considered would help reduce the risk of mould contamination.

 

10.     Some weeks later, probably in April 2014 the claimant then raised the issue of mould contamination with the managing director Peter Noone on his next visit to the premises.  The claimant advised Mr Noone that he felt there was a major problem in relation to contamination, it didn’t seem to be going away and he felt they needed to improve the laboratory conditions, namely with air conditioning or modifications to the layout of the laboratory to improve or reduce air flow.  The claimant had noticed that air was simply being vented into a void in the ceiling and internally through a business enterprise development, open to the public.  He advised Mr Noone that a Government laboratory had been fined £22,000.00 by the Health and Safety Executive for doing something similar when no risk was apparent.  The claimant was concerned that if something wasn’t done about this, it would continue to cast doubt over the suitability and integrity of the work being done.  The claimant believed that the work being done at the respondent’s laboratory was not up to the accredited standards the respondent had agreed to adhere to.  The claimant’s evidence was that he felt this news was not well received and that he was being viewed as “difficult”.  The claimant was told by Ashleigh Greeves that there was no money for improvements.  The claimant believed that this was when his relationship with Ms Greeves began to deteriorate particularly, as she was aware that he had gone over her head and raised this issue with Mr Noone. 

 

11.     The claimant was due to cover for Ms Greeves in May when she went on holiday due to her marriage and subsequent honeymoon.  The claimant and other staff continued to work on the mould problem.  The claimant believed that his relationship with Ms Greeves had deteriorated significantly at this stage to the extent that he said that she did not do a proper handover with him before she went on leave.  Ms Greeves disputed this, saying that they had had a meeting to discuss matters.  The claimant asserted he had not been told about a new contract due to start on the day that Ms Greeves went on leave, which again she disputed.  Regarding the new work coming in on her first day’s leave, she was unable to point to any evidence that she had mentioned this to the claimant but asserted that she certainly did not leave it out intentionally.  She also said that the number of samples being sent in by this particular customer was relatively small and would not have impacted significantly on the day’s work.  We accept the claimant’s evidence that he had not been aware of the new contract and that he had to make arrangements to cover the work.

 

12.     During Ms Greeves’ annual leave, the claimant also indicated that he had to replace some essential consumables which he found strange as Ms Greeves had carried out a stock take before leaving to ensure sufficient supplies were in place.   His evidence was that he began to form the opinion that Ms Greeves had effectively “set him up” to fail.  Ms Greeves disputed this, indicating that there was a standing order in relation to various consumables which would arrive as a matter of course.  She indicated that she had actually ordered some items which ran low but they simply had not arrived by the time she went on leave.  There was no evidence from the claimant to contradict this, and we accept Ms Greeves’ evidence on this point. 

 

13.     In June, an audit was carried out which addressed the issue of mould.  Ms Greeves indicated that the mould problem was not as severe as the claimant had asserted and that it would not have any impact on the analysis of the samples.  It was put to her that the external audit report carried out in June 2014 indicated that some contaminated plates had been covered in mould by Day 10.  Her comment was that a lot of colonies of mould were very small and did not obscure the legionella.   She indicated however that she was not present for the duration of the audit.  She pointed to the conclusion of the audit report and the fact that it did not say at any point that customer samples were compromised.  Ms Greeves was the manager of the laboratory.  She holds an honours degree in microbiology, so her academic qualifications are superior to the claimant’s.  She also had 3 years’ experience working for Scottish Water before she took up her current post.  There was a clear conflict of evidence on this point between the claimant and Ms Greeves.  There was however an ongoing effort to eradicate the problem of mould.  Ms Greeves denied that this was a serious issue at the time.  In her words it was “an annoyance”.  The premises were being rigorously cleaned three times a week so that the source of the infection could be discovered and eradicated.  It was asserted by Ms Greeves that the reason that the rigorous cleaning schedule could not continue was that it was time consuming, laborious and did not appear to be tackling the root problem of mould.  She conceded in cross-examination that the mould problem “had potential” to affect samples but that the samples examined covered a lot more than legionella.  Ms Greeves indicated that she had previously worked in a lab where mould was specifically analysed and no general health and safety requirements came into play when reading samples.  We accept that Ms Greeves was in a more senior position than the claimant and given her superior qualifications, she was the person who had to decide if the mould issue was a serious concern or not.  However we also accept that the claimant’s concern as regards mould was a reasonable and genuine one, as acknowledged by Ms Greeves’ concession that the mould problem had potential to affect samples.

 

14.     The claimant also asserted that he had some concerns about the idea of trainee lab assistants being left to cover weekends on their own, as he felt their training was not yet complete and was not sufficiently detailed.  Ms Greeves disputed this, indicating that she believed their training was sufficient and that the claimant himself had been dealing with legionella samples unsupervised after eight weeks.  She disputed that the claimant had specifically referred this to her.  When it was put to her that the claimant kept raising concerns regarding the mould issue and that this caused Miss Greeves to be frustrated and annoyed, she disputed this, saying that there was a good working relationship between them.  For the reasons we have set out in the following paragraphs, we prefer the claimant’s evidence that the relationship had deteriorated. 

 

15.     The mould problem continued in June.  The claimant’s evidence was that he had been concerned about this because the environmental monitoring reports showed on some occasions that the mould problem appeared to be diminishing, but on other occasions they were “back to square one”.  The claimant asserted that this was causing him stress.  Added to this he had raised the issue of keeping windows closed in the laboratory as it was established practice in other labs, to lessen the risk of any contamination.  However the weather was warm and a number of staff wanted to have windows open because they were feeling too hot.  There was a dispute between the claimant and Ms Greeves about an incident in late June when there was an argument about keeping the windows open.  The claimant’s stance was that it was standard practice in all laboratories to keep windows closed in order to minimise the risk of contamination and he had therefore told staff to keep windows closed.  An incident at the end of June was sparked off by a trainee laboratory assistant opening a window with Ms Greeves’ agreement and then telling the claimant that “he was not the boss, Ashleigh was”.  The claimant was annoyed about this because of what he saw as a breach of standard procedure.  Ms Greeves intervened and took him into the office where there was a further heated conversation between them.  The claimant believed that this had led to a further deterioration in the relationship between him and Ms Greeves, which she denied.  It is our finding however that these events did lead to a deterioration in the relationship between the claimant and Ms Greeves.

 

16.     Ms Greeves disputed this, saying simply that there had been an altercation between the claimant and a lab assistant, but not agreeing that there had been any difficulty between her and the claimant.  We had the opportunity to observe both Ms Greeves and the claimant during the hearing.  While the claimant would present as being perhaps a little intense and certainly earnest, he came across as being open and genuine.  Ms Greeves on the other hand appeared quite cool in her manner and almost detached from the process going on.  On balance, we accept the claimant’s evidence that the relationship with Ms Greeves had deteriorated from April 2014 until the end of June.

 

17.     The claimant had not made the respondent aware that he suffered from bipolar disorder when he applied for employment.  Indeed, in his medical declaration prior to taking up the post he had not given any information in relation to his condition, as he had not had any problems with it for about seven years.  He said that this was as a result of advice given to him by his doctor.  He also said that on previous occasions when he had to declare the condition, he had then had offers of employment withdrawn, and he was concerned that it was because of his bipolar disorder.  The claimant explained the condition in his statement.  He stated:

 

                    “I suffered periods of high energy mania and if left untreated it is normally followed by a period of deep depression.  In periods of mania almost any task can seem possible.  The corresponding low however is very opposite and can make even the simplest tasks seem impossible.  If this is treated most patients can live normally and have long periods of uninterrupted good health.  Occasionally people can slip into poorer health but with changes in medication and self-awareness, more serious symptoms can be avoided.  It is known that periods of extreme stress and anxiety can cause the condition to flare up and sufferers of the disease and their families are educated to ensure they are self-aware especially during times of greater risk.  Unfortunately the condition is genetic and life-long”. 

 

18.     In the month of June 2014 the claimant felt his health deteriorate but he was still conscious of difficulties in his relationship with Ms Greeves.  He stated:

“In the last few weeks I was being asked by Ashleigh Greeves why tasks haven’t been carried out, tasks I have never been made aware, something I had not previously experienced.  The quality of my work which never before had been in question was now being heavily scrutinised and criticised and it felt like goal posts were constantly being moved to try and unnerve me”. 

 

19.     The claimant was due to take a period of leave at the end of June and at this stage he believed his health had deteriorated quite considerably.  He made an appointment with his GP but the earliest he could be seen was 8 July. 

 

20.     The claimant was due to return to work on 7 July but did not attend work and did not phone in because he was anxious and depressed due to his disability.  The claimant advised that making phone calls while in this state of health was very difficult for him.  He did not therefore answer phone calls from Ms Greeves and from another colleague.  Ms Greeves did manage to phone the claimant’s emergency contact number and spoke to the claimant’s father, who told her that the claimant was unwell and was to contact her that morning.

 

21.     On 8 July the claimant contacted Ms Greeves by telephone.  The claimant explained that he was unwell, saying that “he had a fever”.  Ms Greeves told him that it was not acceptable that he had not informed her that he would not be able to attend work.  The claimant said that he would speak to her in person when he was better, that he couldn’t speak her at this stage because he was unwell.  The next day he received a letter inviting him to a disciplinary meeting to discuss his unauthorised absence and his failure to follow the appropriate absence reporting procedures.  He was also charged with failing to respond to calls from the business, leaving the line manager no alternative but to contact his emergency contact.  The claimant was advised that he could be subject to disciplinary action; but the letter did not indicate whether the alleged misconduct, (if proven), would be considered as minor, major or gross misconduct.

 

22.     On 8 July 2014 the claimant attended his GP who gave him a letter for his employer which said that the claimant had attended for “some health problems” and may need 3-4 days off work.  Ms Greeves had made a number of notes of the claimant’s sickness absence.  The claimant had telephoned her on 9 July to advise that he had been to the doctor and would not be returning to work until the Friday of that week.  The doctor’s note arrived on 10 July.  On 11 July (the Friday), the claimant did not arrive for work and he did not make a telephone call to work within 30 minutes of his start time as required by the absence procedure.  The following Monday (14^th) the claimant did not arrive for work and called to advise that he would be off until Friday.  At that stage he had made a further appointment to see his GP on 17 July.  The disciplinary meeting was scheduled for 16 July and the claimant asked Ms Greeves if he would “get into trouble” if he was off over 16 July.  She replied that the disciplinary meeting could be rescheduled.  A medical certificate was produced covering the period from 7-19 July 2014.

 

23.     The claimant subsequently went to see a locum GP on 18 July.  The locum advised him not to mention his bipolar disorder as she felt this might be detrimental to his employment.  She provided a sick note giving his condition as “depression” which covered a one-week period from 19 July 2014, and which was received by the respondent on 25 July. 

 

24.     The claimant did not go to work on 21 July.  He called at 10.30 am to speak to Ms Greeves and indicated that he would not be in.  He made the comment that he did not think he was coming back and advised Ms Greeves that he was “not in a good place” at the moment.  Ms Greeves attempted to telephone the claimant on 22 July but could get no reply.  She then sent him an email asking him to contact her at the office by 12.00 pm on 24 July.  On 24 July shortly after 11.00 am the claimant telephoned Ms Greeves to advise of his intention to return to work.  He indicated that he had been told by the doctor not to make any quick decisions about his return.  On the following Monday (28 July), the claimant telephoned Ms Greeves shortly after 9.00 am to say that he would not be in for the rest of the week.  The same day Ms Greeves posted a letter to the claimant by recorded delivery advising him of the termination of his employment.  The claimant received this letter on
29 July and on the same day his doctor issued him with a “fit note” to say that he was not fit for work for four weeks from 26 July due to bipolar disorder.  There is a sentence on the statement of fitness for work which reads:

 

                    “I will/will not need to assess your fitness for work again at the end of this               period.  (Please delete as appropriate)”. 

 

None of the medical certificates given to the claimant had this line deleted to suggest the claimant did not need to be reassessed before returning to work.

                    The certificate was received by the respondent on 30 July 2014. 

 

25.     There had been no disciplinary meeting with the claimant.  The letter of termination of employment was sent to the claimant by Ms Greeves although the company’s disciplinary code specifically states that a decision to dismiss can only be taken by someone at director level.  Ms Greeves indicated that she had discussed the claimant’s situation with Mr Noone the Managing Director and with Human Resources and that, because of Mr Noone’s pending departure on holiday, he had delegated to her the responsibility of sending the dismissal letter.  The claimant was dismissed with effect from 28 July with one month’s notice which he was not required to work.  The reason for dismissal was given as “unacceptable absence” and the letter set out the detail of this as follows:-

 

“•          Failing to follow the company’s absence recording procedures to report your absence in the timeframes expected;

 

·       this is the second instance where you neglected to report a period of absence and have failed to follow the company’s absence reporting procedure, a procedure that has been clearly stipulated in company documentation and re-iterated by your line manager;

 

·       failing to provide appropriate medical certification within the expected timeframes to validate your absence from the business resulting in the period of unauthorised absence on three occasions;

 

·       repeatedly failing to respond to calls from the business during periods of unauthorised absence”.

 

          The letter further set out the claimant’s right to appeal to Mr Kevin Hempson.

 

26.     The claimant decided to appeal the decision to dismiss him.  On 29 July he received a telephone call from Ms Greeves asking if he had received the dismissal letter.  The claimant said that Ms Greeves used a “gloating tone”.  Ms Greeves denied this and indicated that she simply wanted to enquire that the claimant had received the termination letter.  Ms Greeves’ reason for not rescheduling the disciplinary meeting was that the claimant was too unwell to attend and she “did not feel that he would have been able to attend the hearing.”  She said that she had not been made aware of the extent of the claimant’s depression.  She also asserted that during the claimant’s final weeks of employment there was not one doctor’s note that stated the claimant would need further time off after visiting the doctor but stated that “they all felt he was fit to return to work.”  This is in fact is not correct: the doctors provided “fit notes” for a set period of time, which is usual practice.  Nowhere in any of those notes does it say the claimant will be fit to return to work at the end of the certificate.

 

27.     The claimant’s appeal was dealt with by Mr Hempson, who was the Finance Director of Chemtest Holdings Ltd.  The appeal was conducted by telephone on 13 August 2014.  It does not appear that the claimant was offered the option of a face-to-face meeting and he was still certified as being unfit for work at the time of the appeal hearing. 

 

28.     The claimant’s letter of appeal had been sent on 29 July 2014 and set out the following matters in bullet point form:-

 

“•  I had not been able to adhere to the company’s absence reporting procedure due to suffering from a serious lifelong medical condition which is recognised under the Disability Discrimination Act.

 

·       I do not accept that I have not provided appropriate medical certification.  I have provided appropriate medical certificates to cover the entirety of my absences.  I have seen three medical professionals over a period of three weeks and have been referred back to specialist.  On each occasion I have sent these certificates by first class post on the day that I have attended the earliest available appointment.

 

·       I do not accept that I have had any period of unauthorised absence whatsoever as all of my absences have been covered by a valid medical certificate.  I also do not appreciate being sent emails to tell me that my absence is unauthorised when it clearly has been authorised.

 

·       I do not consider missing two telephone calls to a personal mobile whilst on certificated medical leave to be repeatedly failing to respond to telephone calls from the business.  Furthermore due to the nature of this disorder it is not always physically possible to take these telephone calls.

 

·       I am incredibly disappointed that you have jumped to this decision in such hast and I feel that at no point I have had any support from my line manager.

 

·       I have had serious concerns regarding some quality issues at the laboratory with contamination samples being analysed outside their accredited timeframes which I feel has had a negative impact on my health and only added to an already difficult situation.

 

·       If I do not feel that I have had an appropriate or fair hearing I feel that I have no other option but to inform the accreditation body concerned of these issues and any other concerned parties.”

 

          The accreditation body concerned for laboratories is UKAS. 

 

29.     The appeal hearing took place by telephone over a period of 20 minutes. 
Mr Hempson introduced himself to the claimant.  He also advised him at the outset of the meeting that the claimant did not have the right to bring a claim of unfair dismissal, as he had less than one year’s service.  Mr Hempson indicated however that he was allowing this appeal hearing to take place because “as a company we give all employees the chance to state their case irrespective of their length of service.”  The claimant was asked to explain the points set out in his appeal letter.

 

30.     The claimant explained to Mr Hempson that because of his condition and because of the anxiety associated with it, this often made making or taking a telephone call difficult.  Mr Hempson also raised with the claimant that the medical declaration that he had made at the time he joined the company did not declare his condition on his form.  The claimant advised that he had experienced no health issues related to bipolar disorder for approximately seven years from 2007-2008 but that he also felt to declare his condition would strongly jeopardise his application.  The claimant explained his illness, the medication he was on and the fact that he could suffer from extreme anxiety, which made it difficult to make or take telephone calls.  He was aware of the stigma attached to the illness and was concerned that this would count against him.  It was put to him in the course of the meeting that if he had declared the illness on his claim form, his line manager might have reacted differently.  The claimant’s response at that point was that this was unlikely because even when depression was identified in the fit note, her approach was no different. 

 

31.     The appeal discussion then moved on to the concern raised by the claimant regarding quality issues with contamination and samples being analysed outside of their accredited timeframes.  The claimant was asked to enlarge on this to Mr Hempson, which he did and he also outlined the impact of these issues on his health. 

 

32.     Mr Hempson sent the claimant a report of the appeal on 18 August 2014.  The appeal was not upheld.  In relation to the concerns the claimant had raised regarding quality issues, Mr Hempson commented that he was assured by the quality team that the claimant had followed correct procedure, that he had raised concern with his line manager and senior line manager and subsequently with Phil Hellier who had completed the audit.  Mr Hempson commented that Mr Hellier “advised me that UKAS are aware of the situation which is being dealt with, therefore there are no problems that are not being addressed.”   This was in response to the claimant’s appeal letter which had indicated his concern that this matter needed to be referred to UKAS which was the regulatory authority.  In fact on cross examination Mr Hempson conceded that this was not the case and that UKAS had not been advised on the situation.  His comments to the claimant on that matter at the appeal and the outcome letter were therefore misleading. 

 

33.     Mr Hempson said in his evidence to the tribunal that on reaching his decision on the appeal he relied on three points.  The first of these was that the claimant had “effectively lied” when completing the company’s medical declaration form.  He went on to say, “this deliberate lie in not disclosing a serious medical condition (e.g. experiencing blackouts in the past) could have had potential serious consequences to his health and safety and impacted the health and safety of other staff who worked with him”.  Mr Hempson also noted that the claimant had asked for adjustments to be made in relation to his disability but Mr Hempson considered also the claimant’s “ability to communicate well at times to suit him and in particular to write his appeal letter so quickly following receipt of his letter of termination.”  He indicated that this meant the claimant was able to communicate and could have phoned Ms Greeves without any difficulty.  He concluded that this was a deliberate act by the claimant and that he could have contacted Ashley Greeves at a number of points during July.  He also suggested that the claimant should have been “leading by example” given that he was employed in a managerial capacity.  Mr Hempson completed his statement by saying “I believe that Mr Munn has therefore raised false allegations in order to attack the company and attempt to substantiate claims for disability discrimination or public information disclosures in order to give him the right to claim that he was unfairly dismissed.  I believe Mr Munn was fairly dismissed; his dismissal was purely due to his deliberate inability or unwillingness to follow the company’s absence management procedures”.

 

34.     Following the termination of his employment the claimant was unfit for work for a period of time and then applied for a number of jobs in November 2014.  He explained that he had written to all the local laboratories of which he was aware sending a copy of his CV but to date had not obtained any alternative employment. 

 

THE RELEVANT LAW

 

(1)      The Protected Disclosure Claim

 

35.     The law in relation to protected disclosures is set out in the Employment Rights (Northern Ireland) 1996 (as amended).  More popularly known as “whistleblowing”,  protection against public interest disclosures is provided in certain circumstances where a disclosure is made by an employee on a matter within one of the public interest categories set out in Article 67B of the Order. 

 

36.     The legislation provides as follows:

 

                    “The meaning of a protected disclosure is set out in Article 67A which provides as follows:-

 

                    In this order a “protected disclosure” means a qualifying disclosure (as defined by Article 67B) which is made by a worker in accordance with any of Article 67C to 67H.”

 

          Disclosures Qualifying for Protection

         

                    “67B(1) In this Part, a “qualifying disclosure” means any disclosure of information which in the reasonable belief of the worker making the disclosure tends to show one or more of the following –

 

(a)            That a criminal offence has been committed, is being committed or is likely to be committed.

 

(b)            That a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject.

 

(c)            That a miscarriage of justice has occurred, is occurring or is likely to occur.

 

(d)            That the health or safety of any individual has been, is being or is likely to be endangered.

 

(e)             That the environment has been, is being or is likely to be damaged, or

 

(f)             That information tending to show any matter falling within any one of the preceding sub-paragraphs has been, is being or is likely to be deliberately concealed ...”

 

          Disclosure to Employer or Other Responsible Person

 

                    “67C(1) A qualifying disclosure is made in accordance with this Article if the worker makes a disclosure in good faith –

 

(a)             To his employer, or

 

(b)            Where the worker reasonably believes that the relevant failure relates solely or mainly to

 

(i)               the conduct of a person other than his employer or

 

(ii)            any other matter for which a person other than his employer has legal responsibility, to that person”.

 

37.     In this case the claimant claims that the disclosures he made tended to show either that his employer had failed, was failing or was likely to fail to comply with the legal obligations, namely their obligations to comply with accredited standards, and secondly, their obligations under their contracts with their customers to provide accurate information in relation to the levels of mould contamination in the samples. 

 

38.     He also alleged that the health and safety of individuals had been, was being or was likely to be endangered in a number of respects.  First of all he alleged that the failure to disclose the information in relation to mould could put the health and safety of patients in hospitals at risk in the event that the readings were not accurate.  Secondly, he believed that the health and safety of some of his colleagues was at risk as they had complained he said of chest pains from breathing in contaminated spores.  Thirdly, he considered that there was a breach of legal obligation in relation to the air venting at the premises in that it was not in compliance with the respondent’s legal obligations and windows were left opened which increased the risk of contamination. 

 

39.     The claimant alleged that he suffered a detriment as a result of having made a protected disclosure and also that he was dismissed as a result of having made a protected disclosure.  In relation to detriment, Article 70B(1) of the 1996 Order provides as follows:-

 

                    “A worker has a right not to be subjected to any detriment or any act or deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure.”

 

40.       In relation to the right not to be dismissed for having made a protected disclosure, Article 134A of the 1996 Order provides that:-

 

                    “Article 134A – An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure.”

 

41.     A claim of unfair dismissal on grounds of having made a protected disclosure is not subject to the usual qualifying period of one year for bringing a claim of unfair dismissal.

 

42.     The first issue to consider is whether or not the disclosures made by the claimant qualify for protection under Article 67B and then whether or not there was a detriment to the claimant on the ground that the claimant had made the qualifying disclosure.  The issue of whether the claimant was dismissed on grounds of having made a protected disclosure is considered below.

 

43.     The legal test in relation to what amounts to a protected disclosure is set out in Easwaran v St Georges University of London [2010] UKEAT/0167/10 where Mr Justice Underhill set out a three step test for considering whether a qualifying disclosure had been made.  This was as follows:-

 

                    “1.    Did the worker disclose information?

 

                    2.     If so, did the worker believe that the information tended to show at least one of the relevant failures.

 

                    3.     If so, was the belief reasonable”.

 

44.     In Cavendish Monroe v Professional Risks Management Ltd v Geduld [2010] IRLR 38 EAT Mrs Justice Slade confirmed that “the ordinary meaning of giving “information” is conveying facts.  In the course of the hearing before us, a hypothetic was advanced regarding communicating information about the state of the hospital.  Communicating “information” would be “The wards have not been cleaned for the last two weeks.  Yesterday sharps were left lying around.”   Contrasted with that would be a statement that, “You are not complying with health and safety requirements.”  In our view this would be an allegation not information.”

 

45.     As regards the requirement of “reasonable belief” on the part of the worker concerned, Lord Justice Wall confirmed in Babula v Waltham Forest College [2007] EWCA Civ 174 that the employee must subjectively hold the relevant belief, but the question of reasonableness is to be determined objectively in the context of the facts known to the worker at the relevant time.  The burden is on the employee to establish a reasonable belief.  The principles in relation to assessing reasonable belief were summarised in Babula and in Darnton v University of Surrey [2003] ICR 615.

 

          They can be summarised as follows:-

 

(1)            The tests involve both a subjective test of the worker’s belief and an objective test of whether the belief could reasonably have been held.

 

(2)            The worker can be wrong yet still hold a reasonable belief (Darnton).

 

(3)            The test of reasonable belief applies to all elements of the test of whether the information disclosed tends to show a relevant failure, including whether the relevant criminal offence or legal obligation in fact exists. 

 

(4)            Reasonableness of the belief is to be tested having regard not to only what was set out in the disclosure but also to the basis for that information and any allegation made (Darnton and Babula).

 

(5)            What is reasonable depends on all the circumstances assessed from the perspective of the worker at the time of making the disclosure and it is for the tribunal to assess this.  This may include consideration of the circumstances in which the disclosure was made, to whom the disclosure was made, the context and extent to which the worker claims to have direct knowledge of the matters disclosed and comparison with how the worker would be expected to behave if he genuinely and reasonably believed in the truth of the matters disclosed and that they tended to show a relevant failure.

 

(6)            The truth or falsity of the information disclosed and whether or not the relevant failure in fact occurred may be relevant when assessing reasonable belief.  In other words, it can be used as a tool to assess the reasonableness of the belief of the claimant at the relevant time.

 

(7)            The tribunal must exercise judgment consistent with the evidence and resources available, including the expertise and seniority of the worker, the ability to investigate further and whether it is appropriate in all the circumstances instead to refer the matter to someone else to investigate. 

 

(8)            The standard to be applied has to take into account that it is only necessary to have a reasonable belief that the information “tends to show” the relevant failure rather than that it positively establishes that failure (Babula). 

 

(9)            The burden is on the worker making the disclosure to establish the requisite reasonable belief (Babula).

 

(10)        There must be more than unsubstantiated rumours in order for there to be a qualifying disclosure (Darnton).

It is also relevant to look at the individual characteristics of the worker in deciding whether or not the belief has been reasonable.  In the case of Korashi (which involved a surgeon) the late Judge McMullan stated:-

 

        “There may be things that might be reasonable for a lay person to have believed (however mistakenly) that certainly would not be reasonable for a trained professional to have believed.”

 

46.     The obverse is presumably also true: a person with greater expertise in a particular field may be safely considered to have more knowledge as to whether or not there has been a breach of, for example, health or safety requirements or legal obligations in the employee’s particular field.  In this case the claimant made the disclosures concerned to his employer within Article 67(C) of the 1996 Order and it was not disputed that the disclosure had been made in good faith.

 

(2)      The test for detriment

 

47.     The claimant alleged that the working relationship between him and his manager deteriorated as a result of his raising concerns.  He believed that the working relationship had deteriorated to such an extent he was marginalised, not given information by Ms Greeves before she went on leave, that she “set him up to fail” and that she shouted at him and humiliated him in front of other staff in relation to the issue of the windows in the laboratory being opened or closed. 

 

48.     In relation to the claim of detriment there is no qualifying period of service for bringing a claim of detriment and no upper age limit.  As set out in Article 70B of the 1996 Order (see above) a worker has the right not to be subjected to any detriment by any act or deliberate failure to act by an employer done on the ground that the worker has made a protected disclosure.  The question of whether detriment has occurred is determined using the test in Shamoon v Chief Constable of the RUC [2003]  UKHL 11, namely whether a reasonable worker would, or might come to take the view in all the circumstances that the treatment was to the claimant’s detriment in the sense of disadvantaged.  The Shamoon guidance has been used for whistleblowing detriment claims in the same way it is used for victimisation claims in relation to discrimination law: see Woodward v Abbey National [2006] Court of Appeal. 

 

49.     One of the leading cases in relation to the matter of detriment is NHS Manchester v Fecitt and Others [2011] EWCA Civ 1190 where it was held that the protected disclosure must materially influence (in the sense of being more than a trivial influence) the employer’s treatment of the employee.  However the claimant need only show that he has made a protected disclosure and suffered detriment by the way of satisfying the burden of proof.  If he proves those two elements, the burden will then shift to the employer to provide an explanation innocent of the fact of the claimant having made a protected disclosure (see Article 75 of the 1996 Order).  Once the burden shifts to the employer, it is for him to prove that (where there has been a detriment) the claimant has not been victimised on grounds of having made a protected disclosure.  In Nagarajan v London Regional Transport [1999] ICR 877 the House of Lords set out the correct approach for considering whether detriment suffered was “on grounds of” having made a protected disclosure.  Their Lordships indicated that the tribunal was required to consider the mental processes of the respondent and the reason why detrimental acts or omissions occurred.  The key question is whether the detrimental acts or omissions were materially influenced by the fact that the claimant made protected disclosures.  The employer may have been motivated by both conscious or unconscious factors.

 

(3)      Dismissal for making a protected disclosure

 

50.     As set out above the right not to be unfairly dismissed for making a protected disclosure is set out at Article 134A of the 1996 Order.  The question for the tribunal to consider is: why did the employer dismiss the claimant?  The five elements of a protected disclosure dismissal claim were set out by Underhill J in MOD v Sarfarz [2011] IRLR 562.  The five elements are:-

 

(1)            That the claimant had made a disclosure to his employer;

 

(2)            That he believed that that disclosure tended to show one or more of the matters itemised at (a) to (f) under Article 67B(1);

 

(3)            That that belief was reasonable;

 

(4)            That the disclosure was made in good faith;

 

(5)            That the disclosure was the principal reason for dismissal. 

 

51.     It is an important distinction between dismissal and detriment cases but in dismissal cases the protected disclosure must be the principal reason for the dismissal if there is more than one reason.  In detriment cases, by contrast, the detriment will be on grounds of the protected disclosure if that disclosure was more than a trivial influence on the employer’s treatment of the whistleblower.  When looking at the reason or principal reason for dismissal the tribunal should focus on the mental process of the employer to determine the reason.

 

52.     The test to be applied in considering the burden of proof in public interest disclosure dismissal cases was set out in the case of Kuzel v Roche Products Ltd [2008] EWCA Civ 380.  The Court of Appeal specifically approved the approach previously taken by the Employment Appeal tribunal when it had identified the following four questions for consideration:-

 

                    “1.    Had the claimant shown that there is a real issue as to whether the reason put forward by the respondent was not the true reason?

 

                    2.     If so, has the employer proved his reason for dismissal?

 

                    3.     If not, has the employer disproved the Article 134A reason advanced by the claimant?

 

                    4.     If not, dismissal is for the Article 134A reason”.

 

53.     Bowers notes that the decision of the Court of Appeal in Kuzel did not directly address any issue as to the burden of proof in the case where the employee does not have sufficient qualifying service for a claim of unfair dismissal (see Bowers and Others, “Whistleblowing Law and Practice”, 2^nd edition OUP 2012).  Bowers notes that there are authorities suggesting that where the employee does not have the one year’s qualifying service to bring a claim of “ordinary” unfair dismissal, the burden of proof is on the employee to show that the reason for dismissal was the protected ground.  However the authorities in support of this argument preceded the decision in Kuzel.  Bowers notes that,

 

          “In concluding that the burden of proof lay on the employer (at least in the case where there was sufficient qualifying service), the Court emphasised that the reason or principal reason for dismissal consists of a set of facts operating on the mind of the employer and as such are within the employer’s knowledge (per Mummery LJ at para 54).  The same of course remains true in the case where the employee lacks sufficient qualifying service.  It strongly  indicates that, even if there is a legal burden of proof on the employee who lacks qualifying service to establish that the tribunal has jurisdiction, in practice there will be an evidential burden on the employer, since it is the employer who is able directly to put forward the set of facts operating upon its mind which are said to constitute the reason for dismissal.”

 

          We also note that in Marshall v Game Retail Ltd (UKEAT/0276/13/DA) (Judgment February 2015) Judge Burke QC quoted the judgment of Mummery LJ in Kuzel where he said” ...  The burden of proof must be kept in proper perspective.  As was observed in Maund v Penwith District Council [1984] IRLR 24, when laying down the general approach to the burden of proof in the case of rival reasons for unfair dismissal, only a small number of cases will in practice turn on the burden of proof”.  (Paragraph 55, Kuzel).

 

(4)      The claimant’s claim of disability discrimination

 

54.     It was accepted by the parties that the claimant was disabled as defined in the Disability Discrimination Act 1995 (“the 1995 Act”).  The claimant claimed that there had been failure to make reasonable adjustments by the respondent failing to take account of the effect of the claimant’s disability (adequately or at all) in dealing with the disciplinary charges brought against the claimant and in particular, in the way that it dealt with his appeal.  The claimant argued that once the respondent was aware of his disability, it should have obtained further medical evidence in relation to the claimant’s condition, how it affected his conduct and ability to comply with the absence procedure before completing the appeal. 

 

55.     The duty to make reasonable adjustments is found at Section 4A of the 1995 Act (as amended).  The duty to make reasonable adjustments applies where a disabled person is placed at a substantial disadvantage, compared to people who are not disabled, by a “provision, criterion or practice” (PCP) applied by or on behalf of an employer or by any physical feature of premises occupied by the employer (see Section 4A(1)(a) and (b)).

 

56.     The employer must take such steps as are reasonable in all the circumstances of the case for him to take to prevent the provision, criterion or practice disadvantaging the disabled person.  In Environment Agency v Rowan [2008] IRLR 20 the EAT set out guidance on how an Employment Tribunal should act when considering a claim for failure to make adjustments.  The tribunal must identify

 

(a)            the provision, criterion or practice applied by or on behalf of the employer, or

 

(b)            the physical feature of premises occupied by the employer;

 

(c)            the identify of a non-disabled comparators (where appropriate) and

 

(d)            the nature and extent of the substantial disadvantage suffered by the claimant.

 

57.     A comparator is not always required in a reasonable adjustments case, as Rowan makes clear.  To identify the appropriate comparator and taking the authorities of the House of Lords in Archibald v Fife Council [2004] UKHL 32 and Smyth v Churchill Stairlifts BLC [2006] IRLR 41, the proper comparator can be identified only by reference to the disadvantage caused by the arrangements that are questioned.  The comparison is then made firstly, with persons who are not disabled and secondly, with persons who are not disadvantaged by the provision, criterion or practice at issue. 

 

58.     Article 18B of the 1995 Act provides that the tribunal shall take account of a number of factors in considering the duty to make reasonable adjustments.  These include the extent to which taking the step(s) to make the adjustments would prevent the effect in relation to which the duty is imposed, the extent to which it is practicable for the employers to take the step: the financial and other costs which had been incurred by him in taking the step and the extent to which taking it would disrupt any of his activities; the extent of his financial and other resources, the availability to him of financial or other assistance with respect to taking the step and the nature of his activities and the size of the undertaking.

 

(5)      Dismissal on grounds of disability

 

59.     As an alternative to the claim of dismissal on the grounds of having a protected disclosure, the claimant claimed that he was subjected to direct disability discrimination by reason of his dismissal contrary to Section 4(2)(d) of the 1995 Act.  In order to succeed in this ground, the tribunal must be satisfied that the claimant was less favourably treated on grounds of his disability.  Again the claimant must identify a comparator or a hypothetical comparator.  In this case the relevant comparator in a case of direct disability discrimination is someone who does not have a particular disability of a disabled person but his relevant circumstances are the same as or not materially different from those of the disabled person (High Quality Lifestyles Ltd v Watts [2006] IRLR 850).  The case law on the burden of proof in discrimination cases is well settled, and has been set out by the Court of Appeal in England and Wales in Igen v Wong [2005] IRLR 258 and by the Court of Appeal in this jurisdiction in Nelson v Newry and Mourne District Council [2009] NICA 3.  The initial burden of proof is on the claimant to prove facts from which a tribunal could reasonably conclude that there has been unlawful discrimination.  The burden then shifts to the employer to give an explanation (innocent of discrimination) for the acts complained of.  In recent years there has been a tendency to move away from a requirement of a strict comparator to the test set out by Lord Nicholls in Nagarajan v London Transport [1999] IRLR 572 where he identified the “crucial question” as being the question why the claimant was treated as he was.

 

REASONS AND DECISION

 

1.       Public Interest Disclosure Claim

 

60.     In this case we are satisfied that the claimant made qualifying disclosures under the Public Interest Disclosure legislation as now set out in Articles 67A and following all of the 1996 Order.  Mr Warnock set out six headings under which he alleged that the claimant had made protected disclosures.  We are not satisfied that all these disclosures qualified as disclosures or indeed that they were made in that context.  However, we are satisfied that the claimant raised three specific issues which qualify as protected disclosures.  First, the concern in relation to the presence of mould contamination in the laboratory and in relation specifically to samples being checked for the presence of legionella; secondly, concern that air was being vented into a void in the ceiling and internally through a business enterprise development open to the public and thirdly, complaints about lack of air modification and windows being open, thereby increasing the risk of contamination.  We accept that all of these issues were factually correct and constituted information rather than being merely allegations.  The respondent did not suggest at any time that the disclosures were incorrect or inaccurate. 

 

61.     There were three other issues which Mr Warnock had raised and were raised in the claimant’s evidence either directly or indirectly.  These were, first, concern that staff were breathing in mould spores; secondly, that the claimant was being asked to sign off on test results where he had raised concerns about contamination and thirdly, a complaint about allowing trainees with limited experience and training to work unsupervised.  In relation to the first of these the claimant said that the staff concerned had told him of the chest pains directly, but because of their reluctance to come and give evidence he had not wished to name them.  Ms Greeves was adamant that no such concern had been raised with her.  In the circumstances, we do not consider that we have sufficient evidence to make a finding in relation to this matter.  On the second issue of the claimant being asked to sign off on test results in circumstances where he had concerns about the contamination, his evidence was that he had raised this in the context of a trainee who had wanted to keep the windows open on a warm day.  The claimant’s evidence was that he had informed her (the trainee) that he had to sign sample certificates with accredited results conforming to ISO standards, which included keeping the windows closed.  There was no direct evidence that the claimant had specifically raised this with Ms Greeves or with anyone else in management.  While we can appreciate that this may have been a concern to the claimant, there is no direct evidence that it was raised as a protected disclosure to his employer, or anyone else in authority.  Regarding the complaint which the claimant made about allowing trainees with limited experience and training to work unsupervised, while we can understand the claimant having concerns about trainees being properly trained, he did not produce any specific evidence in relation to this, apart from saying that one of the trainees had previously been working in a retail shop.  He did not however suggest that she had no other previous experience or relevant training in relation to these matters.  Again we consider that there is not sufficient information before us to allow us to make a finding in this regard.

 

62.     As set out above we are satisfied that the claimant raised three specified protected disclosures which we have considered in light of the case law set out at paragraphs 42-46 above.  The first was in relation to the issue of mould contamination in the laboratory and in particular in relation to samples being checked for the presence of legionella.  After this issue had been raised by the claimant, (and Ms Greeves conceded that there was a concern in relation to mould contamination, although she did not take it as seriously as the claimant), a regime of particularly rigorous cleaning was applied in the laboratory.  It took some six months for the problem to be eradicated.  We accept Ms Greeves’ evidence that there was a scheduled audit of the laboratory in June 2014, and that the audit did not specifically take place as a result of the claimant having raised the issues of mould contamination.  The outcome of the audit was that there was a problem in existence and that the problem was being addressed.  The audit overview states:

 

“The anomaly 2014-064-1 (the mould issue) is well documented and illustrates that although there are a high number of failures this had not compromised any work ...  .  To add to the current investigation it appears that the moulds grow well on the Legionella plates and could be seen on some on day three, however, they do not bear spores at this stage, when day 10 plates are examined however some are covered in moulds and the spores are easily liberated into the environment. ... 

 

The laboratory is kept extremely clean and tidy presenting a pleasant and safe working environment for the staff and preventing contamination of samples from test plates.  The mould issue is of concern and proving difficult to eradicate some additional protocols are being devised, in addition to the use of Pre-sept along with Virkon”. 

 

63.     The recommendation of the report was however that the anomaly investigation should be continued to eradicate the mould contamination.  There was a difference of evidence between the claimant and Ms Greeves as to the significance of the mould.  The claimant was clear that in his opinion the amount of the mould could compromise the result of the test samples, whereas Ms Greeves was dismissive of this although she conceded in cross-examination that mould had “potential” to be a problem.  The audit report seems to bear out Ms Greeves’ evidence in that it suggests that sample results were not compromised as a result of the mould problem.  However, we are also aware that while Ms Greeves was an honours graduate with three years lab experience, the claimant had been educated only to foundation level for university, but had considerably longer practical experience.  We accept that the claimant’s belief in relation to the impact of the mould was an honest, genuine and reasonable belief based on his experience of over 11 years in the laboratory setting.  We are not in a position to make a finding or whether or not the mould contaminated the sample dishes; the outcome of the audit report suggests that it would not have compromised the results of the legionella tests.  However, we accept that the claimant, who had considerable practical experience in testing water samples in his previous job for Northern Ireland Water, had properly raised concerns which he reasonably believed may have impacted on the outcome of the tests.  If he had been correct the respondent would have been in breach of its legal obligations, both in failing to adhere to accredited standards and being in breach of its contractual obligations to customers.  It is not necessary for the claimant to show that his disclosures were true, just that he had a reasonable belief that the disclosure “tended to show" a protected breach.  We are satisfied in this case that the claimant had such a reasonable belief.

 

64.     In relation to the second matter, which the claimant raised both with Ms Greeves and with Mr Noone, that air was being vented into a void in the ceiling and internally through a business enterprise development open to the public, we find that this was a genuine and reasonable concern which the claimant raised.  The context in which the claimant raised his concern with Mr Noone was that he was aware that another government laboratory had been fined £22,000 for a similar offence by the Health and Safety Executive when no risk was apparent.  The claimant was also concerned that if something wasn’t done about the air venting, it would continue to cast doubt over the integrity of the work being carried out at the laboratory.  He stated (and it was not disputed) that this was simply not up to the accredited standards which had been agreed with their customers and it was serious.  None of the claimant’s evidence in relation to this was disputed.  The claimant said he felt that this conversation with Mr Noone was not successful, he felt his comments were not well received and that he was viewed as “difficult”.  He also felt (and we accept) that Ms Greeves was unhappy that he had gone “over her head” by raising the matter with Mr Noone.  We accept that the claimant’s concerns in relation to this matter were genuine, that he had a reasonable belief, based on his knowledge of the fine imposed on another government laboratory, that there was a breach of health and safety standards and that there was also a breach of the accredited standards which the laboratory was due to comply with to fulfil its legal and contractual obligations to its customers.  We are therefore content that this disclosure constitutes a protected disclosure.

 

65.     The third issue is a connected one, namely the complaints about the lack of air modification (air conditioning) and the windows being open, could increase the risk of contamination.  The claimant stated that it was a requirement under accredited standards that laboratory windows were kept closed to minimise the risk of contamination, and this was not seriously disputed by Ms Greeves.  Her argument was that the staff were too hot in warm weather and therefore that they were allowed to keep the windows open.  Again the claimant had raised the issue of air conditioning with both Ms Greeves and Mr Noone.  He was told by Ms Greeves that there was no money for air conditioning but that they might consider it in the future.  We accept that, based on the claimant’s experience in other labs regarding the requirement for windows to be kept closed, his concern was a reasonable one; he was concerned about breach of the company’s legal obligations both to its customers and under accredited, regulatory standards.  We accept that this was a protected disclosure which tended to show a breach of accredited standards and thus a breach of a legal obligation in terms of the respondent’s contractual responsibilities to its customers. 

 

2.       Detriment on grounds of having made protected disclosures

 

66.     We are satisfied in this case that there was a deterioration of the relationship between the claimant and Ms Greeves on grounds that he had made protected disclosures.  We believe that this stemmed from the claimant’s conversation with
Mr Noone in April 2014 in relation to some of the concerns which he had already raised with Ms Greeves.  We accept the claimant’s evidence that Ms Greeves was not happy with this, although she denied this in her evidence to the tribunal.  We did not find her denials convincing.  Ms Greeves asserted that the relationship was good.  As evidence of this she said that the fact that the claimant had attended the evening reception following her wedding.  The claimant’s explanation for this was that he felt that if he hadn’t gone, it would have been commented on as everyone else from the laboratory had been invited too, and he felt he had to go to “show his face”.  We accept this evidence from the claimant.  We found Ms Greeves’ attitude towards the claimant was dismissive in some respects, that she failed to take on board his comments in relation to the air conditioning in particular and concerns about contamination.  While her academic qualifications were certainly superior to the claimant’s, and she was the manager in charge of the laboratory, it does not appear from her evidence that she actually sat down and discussed with the claimant why in her opinion there was no risk of contamination of the samples from mould, which would seem a reasonable step for a manager to take with her deputy.

 

67.     Furthermore, the claimant gave evidence in relation to a new contract starting on the day after Ms Greeves went on leave.  While there was evidence of e-mail communication in relation to this, it seems to us a matter of simple courtesy to make sure that the claimant was up to date with any planned work.  We are not so concerned about the issue of ordering supplies while Ms Greeves was on holiday, as we accept that consumables would have had to be reordered at various times and we accept Ms Greeves’ evidence that she had ensured that matters were up to date before she left.  Over a period of three to four weeks, we can entirely appreciate that a laboratory may run low on certain goods which have to be reordered, and this would have been part of the claimant’s work in deputising for her.

 

68.     The other incident which the claimant refers to was the way that Ms Greeves “shouted at him” in front of other laboratory staff on 24 June 2014.  We are satisfied that this incident occurred and although it was primarily an incident with another member of staff, not Ms Greeves, we are satisfied that the way in which Ms Greeves dealt with it, by bringing the claimant into her office and effectively telling him off in relation to this matter (which we are satisfied happened) undermined him in the eyes of other staff.  We are also satisfied that there were occasions when the claimant gave an instruction to staff which was then countermanded by Ms Greeves.  Ms Greeves’ explanation was that the claimant had not been doing things properly or had given staff the wrong instructions and that they found it difficult to deal with him.  No evidence from any other staff wad adduced in relation to this.  There was no evidence whatsoever that Ms Greeves had ever spoken to the claimant in relation to the way that he did his work or failures on his part.  We do not therefore accept that this was occurring or that it was occurring to a level where it was causing concern on the part of the employer.  Had this been the case we would have expected that there would have been some disciplinary action taken against the claimant which did not occur. 

 

69.     The way the claimant’s absence was dealt with also in our view, detrimental to the claimant.  There appears to have been a rather impatient response from the employer to the claimant’s ill health, no effort to establish the exact details in relation to the claimant’s illness and in fact, if anything, an apparent perception that the claimant was not genuinely ill at all.  When the claimant spoke to Ms Greeves in relation to him suffering from depression, he said that her response was, “I take it that this isn’t a new problem?”  In our view all of these matters contributed to the detriment suffered by the claimant.  If the employer had had concerns as to the nature of the claimant’s illness or how genuine it was, they could quite easily have asked him to undergo further medical examination but they failed to do so.  Ms Greeves had agreed to re-arrange the disciplinary hearing but made no effort whatsoever to do so. 

 

70.     We also consider that there was detriment caused to the claimant in the way that the whole issue of his breach of the absence notification procedure was handled by Ms Greeves.  Although this forms part of the claim of dismissal, we are conscious that events leading up to the dismissal may form part of the claimant’s detriment claim.  We find it surprising that rather than waiting for the claimant to return after sick leave, an employer would send out a letter requiring him to attend a disciplinary meeting.  When the claimant’s sick leave was prolonged, he was told by Ms Greeves (and this was not disputed) that the disciplinary meeting would be rearranged.  However, it was never rearranged.  Instead the claimant was summarily dismissed without any disciplinary hearing by letter dated 28 July.  Given the fact that the claimant’s health was also deteriorating as a result of having made protected disclosures from June 2014 onwards, we are satisfied that the injury to his feelings was substantial.  We deal below with the appropriate award in relation to injury to feelings. 

 

3.       Dismissal due to having made a Protected Disclosure

 

71.     As set out above if an employee is dismissed and the reason (or, if more than one, the principal reason) for the dismissal is that the employee made a protected disclosure then it is an automatically unfair dismissal under Article 134A of the 1996 Order.

 

72.     Given the comments in Bowers which we cited above and given the guidance set out by the Court of Appeal in Kuzel (see para 54 above) we consider that the correct approach in relation to this matter would be to consider the four questions set out in the Kuzel decision as to whether the reason or the principal reason for the dismissal was the fact that the claimant had made a protected disclosure. 

 

73.     The first question to consider is whether the claimant has shown that there is a real issue as to whether the reason put forward by the respondent was not the true reason.  We are of the view that the claimant has shown there is a real issue as to whether the reason put forward by the respondent was not the true reason.  The claimant argued (and we have accepted) that the relationship between him and Ms Greeves deteriorated significantly after he had made the protected disclosures and in particular after he had spoke to Mr Noone in relation to the issue about the mould contamination and also the air vent.  We are also satisfied that the relationship deteriorated from April to June over the issues of the audit, in relation to mould contamination, the air vent/air conditioning and the issue of opening the windows.  It is clear that after this, the deterioration in the relationship seemed to become more profound.  It is also significant that it was Ms Greeves, the claimant’s line manager, who took the decision to discipline him regarding a failure to follow the absence policy and ultimately to dismiss him.  Ms Greeves was the person in charge of the Belfast Lab.  She had to contact Mr Noone to get further advice and also the Human Resources Department which was based in England to get further direction on how to proceed.  The initiative in taking disciplinary proceedings lay with her.  We are also satisfied that Mr Noone (who gave no evidence to the tribunal) was not receptive to the claimant’s disclosures in relation to the ventilation system when the claimant spoke to him in April and we accept the claimant’s evidence that Mr Noone perceived him as being “difficult”.  We therefore infer that Mr Noone had no difficulty in delegating the decision to dismiss the claimant to Ms Greeves. 

 

74.     The next question to consider is whether the employer has proved his reason for dismissal.  We are not satisfied that the respondent has done so.  A copy of the respondent’s disciplinary procedure was provided to us and we note that in the “General Principles”, the respondent states that no disciplinary action will be taken until the matter has been fully investigated; and that at every stage the employee will be advised of the nature of the complaint and be given an opportunity to state their case in a disciplinary hearing of which a minimum of five working days notice would be given.  The general principles also state that:

 

“No employee will be dismissed for a first breach of discipline, except in the case of gross misconduct in which the case the penalty will normally be summary dismissal (i.e. dismissal without notice or pay in lieu of notice)”. 

 

          The general principles also provide that dismissals may only be issued by a director which did not happen in this case.

 

75.     The disciplinary procedure sets out a list of examples of misconduct, one of which is unacceptable attendance or timekeeping.  The procedure is set out as to Stage 1 formal or verbal warning, Stage 2 written warning, Stage 3 final written warning and Stage 4 dismissal or action short of dismissal.  Provision is also made for an appeal.

 

76.     In this case the respondent did not comply with its own procedures in that the claimant was dismissed for a first breach of discipline.  Although reference is made in a letter inviting him to the disciplinary of a previous breach of the absence notification procedure, the claimant was not disciplined for the earlier breach and so the events in July 2014 were presumably considered “as a first offence”.  The initial disciplinary hearing was postponed because of the claimant’s illness and he had been assured that it would be rescheduled but this did not happen, he was simply dismissed by letter.  Furthermore that letter was not issued by a director of the company namely Mr Noone who was the sole director of Chemtest Ireland Ltd, but by Ashleigh Greeves who was his line manager.  We were told that she had been authorised to dismiss the claimant, but we were not shown any formal written documents authorising the dismissal. 

 

77.     We also take into account the reason given by the employer for the dismissal, which was failure to follow the absence management policy correctly.  It is correct that the first day of the claimant’s sick leave was, technically, an unauthorised absence because he had not notified his employer of the absence on the day.  He was also disciplined for allegedly failing to pick up work calls but these were not calls which actually related to work, but rather were calls from Ms Greeves trying to find out what was the reason for the claimant’s non-attendance. 

 

78.     The next day the claimant did contact his work and thereafter produced medical certificates, although some of these were partially retrospective.  However, even after the claimant had produced doctor’s certificates indicating that the claimant was unfit for work due to depression, the respondent still pursued the matter as a disciplinary matter rather than a question of sickness absence.  M Greeves’ statement set out the contact she had had with the claimant from 9 July until 28 July.  In particular she refers to a telephone conversation with the claimant on 21 July when he said he did not think he was coming back and advised that he was not “in a good place” at the moment.  Ms Greeves indicated that she asked whether it was for medical reasons or personal and the claimant replied that he was not in a good place and was completely “scundered” at present.  The claimant however called on 28 July to advise of his intention to return, but that he had been told by his doctor not to make any quick decisions.  He indicated he would return the following Monday but did not do so and telephoned to say that he would not be in for the rest of that week.  Nevertheless, on 28 July a letter was posted to the claimant advising of the termination of his contract.  It is astounding to us that an employer would dismiss someone after less than three weeks of sickness absence when the employee had not had the opportunity to attend a disciplinary hearing or to state their side of the story.  It may well have been the fact that there was some uncertainty as to the nature of the claimant’s illness at that point, but it does seem to us premature to have dismissed the claimant at that point.  We are not satisfied, either, that failure to follow an absence notification procedure or failure to take phone calls from the business while off sick is usually a matter of gross misconduct.   On the contrary, we would have thought that in the absence of conclusive information as to the nature of the illness, no reasonable employer would have dismissed an employee summarily.  We are not therefore satisfied that the employer has proven its reason for dismissal.

 

79.     The third question to consider is whether, if the employer has not proven his reason for dismissal, the employer has disproved the Article 134A reason advanced by the claimant?  We are of the view that the respondent has not disproved the reasons put forward by the claimant for his dismissal.  We are satisfied, having observed the demeanour of Ms Greeves, Mr Hempson and the claimant that the main reason why the claimant was dismissed was because he had shown himself to be “difficult” in raising a number of protected disclosures.  We have already set out above that we are satisfied that the claimant made these disclosures on the basis of a reasonable belief that he was raising issues which were important for the correct functioning of the respondent’s business and which were genuine concerns.

 

80.     The appeal was an even more extreme example of how the respondent mismanaged this situation, because by this stage the respondent was aware that the claimant suffered from bipolar disorder.  This does not appear to have been taken into account at all in terms of how the appeal was conducted.  We also note that right at the start of the appeal, Mr Hempson told the claimant that he could not claim unfair dismissal because he did not have a year’s service, but that they were having the appeal so that all employees could be dealt with “fairly”.  The dismissal procedure and the appeal were, frankly, a shambles.  It is questionable as to whether the claimant’s conduct even merited disciplinary action, but we are persuaded that the way this entire matter was dealt with is confirmation that the respondent seized on the first available “blip” in the claimant’s conduct to get rid of someone they perceived as a difficult employee.  We believe that the real reason the claimant was dismissed was because he had made protected disclosures.  Accordingly we find that the claimant was automatically unfairly dismissed and we order the respondent to pay the following compensation:

 

          Basic award

 

          Gross pay     -         £346.15 gross x 4 weeks =                    £ 1,384.60

 

Compensatory Award

 

Loss of statutory rights                                     =        £   500.00

 

Loss of salary (net pay) from 28/08/2014 to

the date of the hearing (23/02/2015)

          =        £291.92 per week x 25 weeks                =        £ 7,298.00

 

Future Loss

 

Given the nature of the claimant’s disability and given his evidence to us that in the past he has found it difficult to find work when he has made employers aware of the nature of his disability, we consider that it would be appropriate to make award of future loss of 52 weeks net pay as follows:-

 

£291.92 x 52                                                   =        £15,179.84

 

TOTAL                                                           =        £22,977.84

 

81.     In addition we need to consider whether to apply a statutory uplift of between 10% and 50% on the compensatory award for failure to follow the statutory disciplinary procedures under Article 17(3) of the Employment Rights (Northern Ireland)         Order 2003.

 

82.     In this case the respondent completely failed to hold a disciplinary meeting with the claimant although they had initially indicated they would do so.  He was dismissed summarily without the opportunity to be heard and without the opportunity to be accompanied.  The appeal which was conducted over the telephone was in our view a “tick box exercise” in that the respondent had no real intention of reviewing its decision, but simply went ahead with the appeal so they could show that an appeal had actually been heard.  What is more, we are not satisfied that
Mr Hempson showed any real intentions to take the claimant’s concerns on appeal into account.  In the circumstances we believe that the appropriate uplift to be applied would be 25%, and we therefore order the respondent to pay £5,744.46 by the way of uplift on the basic award.  We order the respondent to pay the claimant a total award for unfair dismissal of £28,722.30.

 

4.       Failure to make reasonable adjustments 

 

83.     The claimant’s claim in relation to failure to make reasonable adjustments related to the respondent’s fail to take any account on appeal of his medical certificate dated 29 July 2014 which stated that the claimant was suffering from bipolar disorder, in the way that it dealt with his appeal.  The claimant had previous lodged medical certificates showing his illness as “depression”.  In our view the way that the respondent dealt with this is simply breathtaking.  Not only did Mr Hempson ignore the diagnosis of bipolar disorder and fail to clarify any steps which might be taken to take of this in dealing with the appeal, but the diagnosis appears to have reinforced his decision to uphold the appeal.  Mr Hempson’s evidence was that the claimant had “effectively lied” when he failed to disclose that he suffered from bipolar disorder in his initial medical declaration at the start of his employment.  We can appreciate that an employer will be better equipped to cope with an employee’s disability if they have full knowledge and that they cannot be held liable for disability discrimination if they did not know of the disability.  While we understand why the claimant was reluctant to disclose his condition, we also accept it should have been disclosed.  This is however a totally different issue from allowing the disability to influence the outcome of an appeal which related to a different matter.  Instead Mr Hempson said in the appeal outcome letter to the claimant that the medical declaration form:

 

 

“has been falsely completed with the significant lack of important information being disclosed.  In itself it would be grounds for employment termination not least in this situation we were unable to provide reasonable adjustment to a condition that we were not aware of”. 

 

We are also aware that the appeal was conducted by telephone.  The claimant’s evidence to the tribunal was that he found it difficult to cope with telephone conversations when dealing ill with bipolar disorder.  At the date of the appeal he was still certified as sick with the same condition.  It would seem to us that the minimum a reasonable employer could do in this situation would be to ask the claimant for a further medical report, asking how his condition affects him when he is ill, and in particular asking whether there are any steps which can be taken in relation to the conduct of appeal which would make it easier for the claimant to participate.  An employer should also take account of the fact that a claimant who is ill with this condition may not be able to function as well as they would under normal circumstances.  The respondent totally failed in this regard.  We can understand from the claimant’s point of view that this would reinforce his view that disclosure of this particular medical condition would only make it more difficult for him to find other work or to be accommodated in relation to this condition.  Unfortunately the claimant’s perception that there is a stigma attached to mental illness has some substance.  The respondent in this situation has done nothing to facilitate the claimant or to negate his perception. 

 

84.     Given that the employer is an organisation with staff based in England as well as Northern Ireland and has a dedicated Human Resources Department, we would have considered it entirely reasonable for the employer in this case to have postponed the appeal until they had the opportunity to obtain a medical report on the claimant’s condition.  They could have sought advice on how that condition would impact on his ability to comply with the absence reporting procedure and secondly, how it would affect the claimant’s ability to put forward his point of view at an appeal and the best method of dealing with the appeal.  Mr Hempson appears to have taken the view that because the claimant was able to write a letter of appeal there was no reason why he could not have made telephone calls to Ms Greeves.  While that may be a reasonable point of view if the claimant had been well, is not clear it was reasonable when the claimant was suffering from bipolar disorder.  This was the clear evidence of the claimant and is borne out by the medical evidence given by his General Practitioner. 

 

85.     In our view these failures on the respondent’s part had a considerable impact on the claimant’s health at the time in that it would appear that his confidence was affected to the extent that he was unable to start looking for other work until November 2014.  We accept that given the nature of the claimant’s illness, the events of July and August 2014 had a major impact on his health and as he said, a detrimental effect on his confidence and even overall health.  He explained to us that he had previously been working for roughly 11 years in other similar laboratory settings but for the first time in his career he had been sacked from a post.  This is bound to have a detrimental effect on anyone’s confidence, but particular so given the claimant’s health issues.  He states in his witness statement:

 

“I have a black mark on my CV which I feel is wholly undeserved”

and he quite fairly makes the point that it is difficult to address this issue with future employers. 

 

He continues

 

                    “I am still shocked that a company could be so disregarding to mental health and it has bolstered my opinion that to mention anything to do with having a mental health problem is in fact a death sentence with regards to employment.” 

 

          We commend the attitude shown by the claimant, that his best course of action could be to find employment and to put the whole matter behind him and we trust that he will be successful in this. 

 

86.     We have considered an appropriate award for injury to feelings both for the question of detriment on grounds of having made a protected disclosure and also the issue for failure to make a reasonable adjustment.  In all the circumstances, and given the clear impact which these events have had on the claimant’s health and self-confidence, as set out in his evidence to the tribunal, that the appropriate award would be in the mid range of Vento.  We consider the appropriate award in this case would be £7,500 and this also is subject to the statutory uplift in relation to under Article 17(3) of The Employment Rights (Northern Ireland) Order 2003, making the total award £9,375. 

 

87.     This is a relevant decision under Regulation 3 of the Industrial Tribunals (Interest on Awards and Sex Discrimination and Disability Discrimination Cases) Regulations (Northern Ireland) 1996.  We order the respondent to pay to the claimant interest on the award for injury to feelings at the rate of 8% from the date of discrimination i.e. 29 July 2014 until the decision date, namely 40.5 weeks @ £14.42 per week = £584.01.

 

(5)      Dismissal of business law on grounds of disability

 

88.     The claimant has argued in the alternative, that he was dismissed on grounds of his disability namely bipolar disorder.  Given our finding in relation to the fact that the principal reason for his dismissal was that he had made a protected disclosure, we do not feel that it is necessary to deal with this in any detail.  We are not satisfied that the claimant was initially dismissed on grounds of his disability, given that the respondent was not aware of the exact nature of his disability when he was dismissed on 28 July 2014.  We note that Mr Hempson affirmed on the appeal outcome letter that the claimant was dismissed for failing to follow the absence notification procedure and also referred to the claimant’s failure to disclose his medical condition at the outset of his service with the respondent.  While we consider that the claimant’s failure to disclosure his condition was a factor in the appeal being dismissed, we remain persuaded that the principal reason for the dismissal itself was that the claimant made protected disclosures.  Accordingly the claim of direct disability discrimination in our view has not been made out.  In our view the claimant was treated as he was, it was because he had made protected disclosures and was then perceived as a “difficult” employee.  Further, the claimant has failed to adduce evidence in relation to any actual or hypothetical comparators and this claim is dismissed.

 

89.     In summary we find that the claimant’s claims of having made protected interest disclosures on grounds of which he suffered detriment and was dismissed are established.  We also believe that the respondent failed in its obligation to make a reasonable adjustment to take account of the claimant’s disability, namely bipolar disorder.  We can appreciate that it can be difficult for an employer to deal with unfamiliar medical conditions, in particular mental illnesses, where different conditions can affect individuals in different ways.  It would however have been reasonably straightforward and relatively cheap for the respondent to have obtained a medical report on the claimant’s condition before embarking on a course of action which led to this industrial tribunal hearing, with all the time and expense involved.

 

90.     We order the respondent to pay the claimant the compensation set out at paragraphs 80, 82 and 86.  This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

Employment Judge:      

 

 

Date and place of hearing:         23, 24, and 25 February 2015, Belfast.

 

 

Date decision recorded in register and issued to parties: