Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 83/15

 

CLAIMANT: Marie-Claire McLaughlin

 

RESPONDENT: Charles Hurst Limited

 

 

CASE REF: 1356/15

 

CLAIMANT: Marie-Claire McLaughlin

 

RESPONDENTS: 1. Charles Hurst Limited

2. Rosemary Chapman

3. Andrew Gilmore

 

DECISION

(i) The unanimous decision of the tribunal is that the respondents failed in their duty to make reasonable adjustments for the claimant.

 

(ii) By a majority, the tribunal holds that the respondents did not discriminate against the claimant on the ground of her disability, or victimise her, in respect of her suspension from work, placing her on statutory sick pay, or removing her company car.

 

(iii) The tribunal unanimously decides that the respondents did not harass the claimant by holding meetings in the premises where she worked.

 

(iv) The tribunal also unanimously decides that the respondents did not discriminate against, victimise, or harass the claimant in any other respect.

 

Constitution of Tribunal:

Employment Judge: Employment Judge D Buchanan

Members: Mr R McKnight

Mr J Law

Appearances:

The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.

The respondents were represented by Mr P Bloch, Director, of Engineering Employers' Federation Northern Ireland.

 

1(i) The claimant, Ms McLaughlin, a customer service adviser employed by the first-named respondent, a company carrying on the business of car sales and car dealing, has brought two claims before the tribunal. These claims were consolidated by Order of 25 September 2015.

 

(ii) In her first claim, Case Reference No: 83/15, which was presented to the tribunal on 19 January 2015 and which is brought only against Charles Hurst Ltd, the principal allegation which she makes is that she was discriminated against on the ground of her disability when suspended from her work on 6 November 2014. This suspension, which lasted for four weeks was, on her account, imposed without any explanation.

 

(iii) In her second claim, Case Reference No: 1356/15, presented on 10 July 2015, and brought against Charles Hurst Limited and two of its employees, she alleged ongoing discrimination on the ground of disability, discrimination by way of failing to comply with the duty to make reasonable adjustments, harassment, and victimisation because she had complained of disability discrimination and brought a claim ( Case Reference No: 83/15) before a tribunal.

 

(iv) The respondents conceded, in correspondence of 22 May 2015, that the claimant was a person who, by virtue of the depression from which she suffered, had a disability within the meaning of Section 1 of the Disability Discrimination Act 1995.

 

(v) A full statement of the consolidated legal and factual issues in these claims, which was agreed at a Case Management Discussion held on 23 September 2015, is attached as an Annex to this decision. Of those issues, the main ones with which the evidence adduced before us was concerns which related to the claimant's suspension from work, an alleged failure to offer her reduced hours, the placing of the claimant on statutory sick pay during her suspension (which led immediately to a considerable loss of earnings), the withdrawal of her company courtesy car and her removal from the company's insurance policy as a named driver. There was also an allegation that Mr Gilmore, by holding meetings in the premises where she worked, had harassed her.

 

(vi) Before the issue of the final decision in this matter, one of the panel members, Mr Joe Law, died. The Employment Judge and the remaining panel member, Mr McKnight, would like to express their sadness at his death, and to pay tribute to his conscientious, thoughtful and diligent approach to the conduct of this case. Mr Law had heard all the evidence and had taken part in a panel meeting shortly after the hearing when all the evidence was discussed. He dissented, in part, from the decision of the tribunal. The Employment Judge and Mr McKnight have considered this matter fully, and are satisfied that this decision is an accurate reflexion of the views expressed by all members of the panel, save on the issue of compensation, which we had not discussed, and which we have now dealt with at Paragraph 33 below.

 

2(i) In order to determine this matter the tribunal heard evidence from the claimant, Ms McLaughlin, her partner, Mr Ian Redpath, Ms Norma Bolton, an Employment and Training Officer with Disability Action, and Dr Philip McGarry, a consultant psychiatrist.

 

For the respondents we heard evidence from Mrs Rosemary Chapman, the first-named respondent's HR Adviser, Mr Andrew Gilmore, its Group Aftersales Manager (previously the Renault Franchise Service Manager), Mr Jeff McCartney, its Dealer Principal, Mr Ryan Andrews, the Renault/Nissan Belfast Service Manager, and Mr Richard Hillis, Aftersales Manager.

 

We also had regard to the documentary evidence to which we were referred.

 

(ii) As far as the respondents were concerned, as will be apparent, they found the claimant someone who was difficult to manage and who exhibited challenging behaviour. Clearly, this was due in large part to her mental health issues. Much more concerning is the fact that the respondent company - which is a large company and substantial employer - through its managers who gave evidence - showed a distinct lack of awareness bordering on abysmal ignorance of the provisions of the Disability Discrimination Act 1995 and the obligations which an employer has under that legislation, and a lack of awareness of its practical applications.

 

(iii) We find the facts set out in the following paragraphs proved to our satisfaction on the balance of probabilities.

 

3(i) The claimant had been employed by the first-named respondent since 23 July 2012. She worked at its premises at Boucher Road, Belfast at the time the events giving rise to these proceedings arose. She had started there on 29 January 2013. When her employment had originally begun, she had worked in Portadown, and had then moved to Lisburn.

 

(ii) She described her job as involving dealing face-to-face with customers, their repair and servicing work, pricing and invoicing, keeping customers informed, providing technical expertise and ensuring manufacturers' processes were adhered to.

 

The claimant's hours of work averaged 47.8 hours per week (Monday - Thursday, 8.00 am - 6.00 pm; Fridays - 8.00 am - 5.00 pm; and Saturdays (on a rota, 9.00 am - 1.00 pm).

 

(iii) It is clear that she worked in a busy environment, and as one of a small team who had to work closely together.

 

(iv) The claimant unfortunately had a history of depression. She had an episode in 2011/2012, and in October 2013, before moving to Boucher Road, she had a period of sick leave caused by depression and anxiety. After starting in Boucher Road the depression, anxiety and low mood from which she suffered continued. There were difficulties with her medication, and she experienced little, if any, improvement in her condition.

 

(v) The early part of her move to Belfast was characterised by absences and lateness (there had been some issues about timekeeping and absence in her previous employment at Lisburn). In the period from 29 November 2013 to 24 February 2014 she had been absent on 45% of working days, and had been late on 25% of the days on which she had worked.

 

(vi) On 9 January 2014 she was invited to a performance review meeting with Andrew Gilmore. It took place the following day, 10 January 2014, and matters discussed included her timekeeping and attendances, along with areas in which Andrew Gilmore said he wanted to see a sustained and immediate improvement, such as the quality of customer data and meeting targets.

 

4 There is no doubt that Mr Gilmore, as a manager, was frustrated with the claimant's frequent absences from work, and the consequent pressure that those absences were having on the business and other members of staff.

 

The claimant, for her part, felt she was being pressurised to come to work and that the first-named respondent was looking for ways to end her employment, or, as she put it, was 'trying to performance manage her out of the job'.

 

The situation was not helped by the fact that she had to a degree got off on the wrong foot with Mr Gilmore, for when she started in Lisburn she had not made him aware of her previous absences from work. Presumably, this information would, however, have been available to him from the company's records.

 

5(i) On 13 January 2014 a letter was sent from the claimant's GP practice to the first-named respondent. It stated that she had been attending regularly with anxiety and depression from September 2013. It described her condition as moderate to severe. It stated that her treatment had involved several different antidepressants, but that it was proving hard to find one that worked well for her without side effects.

 

(ii) On 28 February 2014 the first-named respondent, through Rosemary Chapman, referred the claimant to Occupational Health Consultants. Some supplementary information was sent in a further communication of 4 March 2014. The request made reference to the claimant's absences and lateness, asked whether the Disability Discrimination Act 1995 applied to her, and sought the doctor's opinion as to what could be done to help the claimant to improve her attendance and timekeeping, and if there were any adjustments that the respondents needed to consider.

 

(iii) The claimant was seen by Dr Michael Morrin, an Occupational Health Specialist, on 14 March 2014, and he provided a report, dated that day, to the first-named respondent. At the time of his report, the claimant had by then been off work on sick leave for three weeks. He referred to her history of clinical depression which had been diagnosed in 2011. Initially she had responded well, but her condition worsened in 2013. Treatment with antidepressant drugs had been difficult in controlling her condition. He stated that she was not fit for work at that date. He stressed that she should only return when fit enough to be back in the workplace and to function well within it, and referred to the onus on an employer to ensure that stresses in the workplace did not affect an employee's health.

 

He expressed the opinion that she would not be fit to go back to work for one or two months.

 

The tribunal considers that the receipt of this report from Dr Morrin by the first-named respondent was an event of some significance as far as the claimant's health and well-being at work was concerned.

 

(iv) According to the claimant, Dr Morrin suggested she work reduced hours - 40 hours per week. However, this is not in his report, and she did not contact him to correct any omission.

 

6(i) On or around 19 March 2014 the claimant asked Rosemary Chapman how she could apply for reduced hours in the light of Dr Morrin's Occupational Health report.

 

(ii) On 20 March 2014, the latter sent her a flexible working application form. She ultimately returned this on 17 April 2014.

 

Essentially what the claimant was looking for was a working pattern to meet her needs, ie three or four days per week, no loss of pay and continued benefit of a company car.

 

(iii) In her flexible working application the claimant made specific reference to '[her] disability' and the severe impact it was having on her and her colleagues. She tailored the form as best she could to disability. Prior to submitting that application, she had met with Rosemary Chapman and Andrew Gilmore on 24 March 2014 to review the Occupational Health report, so the respondents clearly had before them an accurate description of the claimant's condition and they knew about its characteristics such as mood swings, panic attacks, etc and the fact that her medication was not really helping.

 

7(i) On 20 May 2014 - at this time the claimant was on sick leave- she met again with Andrew Gilmore and Rosemary Chapman to discuss her application for flexible working.

 

The claimant did, in the course of the meeting, reiterate that OH had recommended a reduction in her hours and that her GP had also advised that this would help. However, the whole focus of the discussion, from its outset, was what the impact of her request for reduced hours would be on the business. Indeed, this was one of the very first questions Mr Gilmore asked her at the meeting. There was no focus on her disability or the concept of reasonable adjustments, which is hardly surprising when Mr Gilmore accepted that he had received no training on the Disability Discrimination Act and that he was not aware of the concept of reasonable adjustments.

 

(ii) Notwithstanding this, the claimant did give a detailed response. She was seeking a reduction in her then current weekly hours of 47.8 hours, with some emphasis on her part on having Fridays off. At the meeting there was some discussion of a phased return to work.

 

(iii) The claimant agreed that the company could have more time to consider her proposals, and the parties met again on 4 June 201 for a further discussion. The claimant was still on sick leave at that time. The company offered her a job-share with another service adviser at Boucher Road working 25.5 hours per week on average. It wanted her to trial this arrangement before it would agree to a permanent alteration to her working pattern. She was given time to consider this, and in the interim period she was offered a receptionist's post at the Kia Garage, working 16 hours per week.

 

(iv) Both these options involved working less hours than the claimant had wished. In neither would she have access to a company car, though in relation to the job-share at Boucher Road, she would have the use of a company car for a three month period until she could make alternative arrangements for transport. From the claimant's point of view the Kia post was never really a runner because of the limited number of hours, but the job-share at Boucher Road also involved an unacceptable reduction in salary from her point of view, and the lack of a company car was also a major factor. Ultimately she rejected the latter post on 4 July 2014.

 

(v) In the interim, the respondents received a letter from the claimant's GP dated 12 June 2016. It referred to the Disability Discrimination Act 1995, and the duty of an employer to make reasonable adjustments. It suggested that she be offered a long phased return to work as part of her rehabilitation process, and the hours suggested by the doctor for a phased return were accepted.

 

(vi) On 14 August 2014, Mr Gilmore wrote to the claimant. In that letter he again made no reference to her condition, the Disability Discrimination Act or the concept of reasonable adjustments. He stated:-

 

"Having therefore considered your original request [for reduced hours], we are unable to accommodate your request to work three days a week on a permanent basis due to our inability to organise your work among existing staff and our concerns about the detrimental effect on quality and performance. As you know these concerns have been apparent during your current phased return to work after a period of sickness absence, with customers complaining about the standard of service we as a team are providing. While the company is able to accommodate your reduced hours on a short-term basis during your phased return, we do not consider that this is sustainable on a long term basis for the reasons given above."

 

The whole tenor of this letter emphasises the company's business needs (which is of course a highly relevant consideration for it), but it does this to the exclusion of the claimant's health and wellbeing.

 

(vii) More generally, it is clear from the respondent company's internal e-mails that the claimant's ongoing and frequent absences were a matter of concern and frustration. Mr Gilmore had certainly become frustrated with her - perhaps understandably - because he felt that he had devoted a lot of time and effort to trying to accommodate her, and to no avail. This feeling was not confined to him. This lack of sympathy led the claimant to believe that the respondent company's managers, in particular Mr Gilmore, wanted rid of her. We have no doubt they would not have been unhappy to see her go, but against that the long running nature of this saga belies any claim that there was an attempt to force her out.

 

8(i) The claimant was off work for a period of two weeks from 18 September 2014, returning to work on 1 October 2014. The reason for her absence, as stated on her sick line, was 'depression and anxiety'. On 1 October 2014 Andrew Gilmore wrote to her. Attached to this letter was a list of her absences since joining the company in July 2012. He again alluded to the difficulties her absences were causing for the business and her fellow employees. He concluded:-

 

"We need to understand whether or not you can return to work and provide a level of attendance which is acceptable to the Company, and will therefore be referring you to Occupational Health for an assessment of your health circumstances in relation to work."

 

(ii) The referral form to Occupational Health dated 24 October 2014 made no reference to the claimant's mental health issues (though an annex identical to one sent to her with Mr Gilmore's letter of 1 October 2014 did show absences due to anxiety and depression), a box on the form relating to 'known disabilities' was marked 'N/A' (not applicable), and the reason for the referral was stated as follows:-

 

"Marie-Claire has had a consistently poor level of attendance and timekeeping. Marie-Claire also has a history of sickness absence following annual and statutory leave."

 

(iii) On 30 October 2014, the Occupational Health consultants carried out a telephone assessment with the claimant. Their report, from Taffy Musungwa, a specialist practitioner in Occupational Health, was received on 3 November 2014. In the recommendations, management was advised to consider whether the claimant's weekly working hours could be reduced to 40 so that she could have a better work/life balance. The report continued:-

 

"Ms McLaughlin has an underlying condition, anxiety and depression which is likely to be covered under the Equality Act. Employers are expected to implement reasonable adjustments in the workplace in compliance with the Equality Act. What is 'reasonable' is for the employer to decide, based on the resources available to them."

 

(The references to the Equality Act 2010, rather than to the 1995 Act which still applies here, is explained by the fact that the Occupational Health consultants were based in Great Britain.)

 

(iv) In the period from 1 October 2014 to the beginning of November 2014 there was essentially no progress in relation to the claimant's application for reduced hours. From her point of view she had continued to struggle with depression for over a year against the background of an employer who did not give any consideration to her condition.

 

9(i) Things then took a distinct turn for the worse as far as the claimant was concerned.

 

On 5 November 2014 she went home early, with her manager's consent. She had had a bad day at work, characterised by tearfulness, low mood and anxiety.

 

On the same day it came to Andrew Gilmore's notice that another member of staff wanted to apply for a job in another business. Her stated reason for this was that she could no longer work with the claimant. Ryan Andrews told him he found the claimant difficult to manage, and that managing her was taking up a lot of his time, to the exclusion of other work. He, and other members of staff, found her unapproachable and confrontational, and there were concerns about her behaviour towards customers. At a so-called 'wrap-up' meeting on that day (these meetings appear to have been held on a frequent, if not daily basis) at which Andrew Gilmore was present, her colleagues in the team opened up about the pressure the claimant's absences put them under, and complained about her attitude to them and customers.

 

That evening he also received an e-mail from another service adviser, Sean McCormick, who made similar allegations against the claimant.

 

(ii) The following day Andrew Gilmore and Ryan Andrews met with the claimant. As stated above, she had gone home early the previous day and had been told she did not have to come in until 10.00 am. In the meantime, Andrew Gilmore had taken advice and he suspended the claimant, effective from that date. In a letter handed to her on the same date, she was told that the suspension would be until further notice, 'pending an investigation with a number of issues arising in the workplace'.

 

It was stressed that the suspension did not constitute a disciplinary sanction, and did not imply that she was guilty of any misconduct.

 

The suspension came out of the blue as far as the claimant was concerned. She was not given any substantial reason for her suspension. Although distressed by what had happened, she phoned Rosemary Chapman on the way home, but that conversation did not take the matter any further, as Rosemary Chapman could not, or would not, tell her anything.

 

(iii) On 12 November 2014, the claimant sent a letter, which a solicitor had drafted for her, asking for the reason for her suspension. She was eventually told - on 14 November 2014 - that there were complaints from colleagues and customers though not who had complained or the nature of the complaints. As far as we can see, there were no notes made about complaints from other staff members, and there is no evidence of written complaints by customers. Notwithstanding this, it is clear to us that management did have legitimate concerns and that there were matters which needed to be investigated.

 

10(i) Mr Jeff McCartney, the company's Dealer Principal, was appointed to carry out an investigation into the issues raised, and between 11 and 17 November 2014 he met with other staff in the course of his investigation. Andrew Gilmore and Ryan Andrews, who were two of the main players in this series of events, effectively said nothing in the course of their interviews with Mr McCartney which could have been taken into account to the claimant's benefit. Mr Andrews, like Mr Gilmore, had generally little knowledge of the provisions of the Disability Discrimination Act 1995 or the concept of reasonable adjustments.

 

(ii) On 8 December 2014 Mr McCartney met with the claimant. (The meeting had originally been scheduled to take place on 1 December 2014, but had been postponed at her request.) Ms Chapman, who was the company's HR Adviser, attended the meeting to take notes. In evidence she stated that she could not recall whether, in advance of the meeting, she had advised Mr McCartney of the claimant's disability, or mentioned the Disability Discrimination Act and its concept of reasonable adjustments.

 

Mr McCartney put to the claimant allegations from her colleagues that she was confrontational, that people did not know how she would react, that she was unapproachable and sharp and snappy with customers.

 

The claimant denied that she was confrontational and raised issues which she had with colleagues. She was told that these would be investigated. She said that she was clinically depressed and mentally ill, and had been referred for psychiatric health.

 

(iii) Subsequent to the meeting on 8 December 2014 the claimant e-mailed the company alleging that her suspension had been an act of discrimination and pointing out that the company was fully aware that she suffered from clinical depression and of the impact which it had on her health.

 

Ms Chapman replied to this e-mail on 9 December 2014 reiterating that her suspension had not been disciplinary, but rather was because legitimate concerns had been raised which the company had to look into. It acknowledged that she had raised issues which required investigation. It stated that it was clear there were relationship difficulties between her and work colleagues and that she had indicated at the meeting with Mr McCartney that these might be a result of the medical condition she had.

 

She was informed that the company was contacting Occupational Health.

 

11(i) Arrangements were made for a reference to the employer's Occupational Health advisers, Maitland Medical Services. The assessment, which was by way of a telephone consultation, took place with a Dr Brennan on 23 December 2014.

 

(ii) Dr Brennan provided a written report dated 29 December 2014. He recounted the claimant's medical history, as informed by her, and stated that her mental health problems had been ongoing for four years, prior to her starting work with the company. The doctor estimated that up to the preceding September (2014) she may have been absent from work for four or five of the previous 15 months. Her suspension had, in his view, 'perhaps inevitably' contributed to her low mood. He stated:-

 

" ... [W]hat emerges is a quite complicated case. Very high levels of absence historically seemingly linked to mental health have now merged into the current absence, linked by the employee to being suspended for another mix of reasons."

 

He continued:-

 

"I personally have little doubt that this lady's health problems are likely to fall under the umbrella of the Equality Act. [Dr Brennan was based in Kent and refers to the GB legislation.] Although it is not entirely clear speaking to her and reviewing the previous reports whether there are concerns about her coping in a stressful work environment and also (to account for the work life balance) the request for a reduction to 40 hours a week."

 

Again, we consider that this report was of some significance as far as the employer was concerned and should have been acted upon.

 

(iii) On 19 January 2015, the claimant was asked to attend a meeting to review the OH report. This was scheduled for 23 January 2015. However, the claimant submitted a letter from her GP, dated 22 January 2015, stating that she was suffering from severe anxiety and depression, and that she was not fit to attend any work-related meetings. When submitting the GP's note, she also asked if there was the option of transferring to another department.

 

(iv) On 30 January 2015, Rosemary Chapman responded to the claimant on the company's behalf. She informed the claimant transfer options would be discussed when they had had the opportunity of reviewing the OH reports with her. She also informed the claimant that in the interim, and in accordance with company practice in relation to employees who were suspended and also ill, she would be placed on statutory sick pay ('SSP').

 

(v) On 11 February 2015, the claimant lodged a second grievance. She alleged that being placed on SSP was a further act of discrimination and victimisation.

 

12(i) On 19 February 2015 the claimant had a meeting with Jeff McCartney and Rosemary Chapman to review the OH reports (principally the most recent one from Dr Brennan of 29 December 2014). This meeting had been delayed on account of the claimant's illness.

 

By this stage it was clear that the claimant was looking for a reduction in her working hours to 40 hours per week. It was also clear that she did not wish to return to the Renault garage. She was told that the company would look into options pending the outcome of the investigation.

 

(ii) At the meeting on 25 February 2015 effectively nothing was done to take forward the issue of reasonable adjustments in terms of reduced hours. The company had, however, asked Dr Brennan of Maitland Medical to prepare another report on the claimant based on previous reports and the e-mail from her of 11 February 2015 lodging a further grievance.

 

13(i) On 24 February 2015 the claimant again met with Jeff McCartney and Rosemary Chapman. She was accompanied by her partner, Ian Redpath. The purpose of the meeting was to go through the outcome of Mr McCartney's investigation following her suspension.

 

(ii) Mr McCartney started by stating the obvious, namely that there had been a breakdown in relations between the claimant and her colleagues at Boucher Road, to such an extent that they clearly could not work together. He very reasonably did not apportion blame for this unhappy state of affairs. He wanted to resolve the matter to everyone's satisfaction. The claimant was told that she would return to work at Toyota, Boucher Road, on a phased basis building up to a five day week. She would therefore be going back to full hours, not reduced hours. Mr McCartney told her that she could make a further application for reduced hours to her manager when she started work. He said the company did not normally allow another application within a twelve month period but would allow her to do so. Clearly Mr McCartney was talking here about a flexible working application (Article 112(F)(4) of the Employment Rights (Northern Ireland) Order 1996 provides that an employee may not make a further application to his employer for flexible working within 12 months of the date on which any previous application was made).

 

The claimant, in response, emphasised that she was not looking for flexible working. She wanted reasonable adjustments on the ground of disability and pointed out that OH reports had advised the company to reduce her hours. However, Mr McCartney told her that the alternative job was there for her on a 'like for like basis' and that 'if she wasn't prepared to accept it we couldn't go on like this indefinitely'.

 

14 On 27 February 2015 the claimant was told that her suspension had been lifted. Although told on that date, it appears it had been lifted on 19 February 2015, as her normal salary was to be paid from that latter date. Her period of suspension had been a protracted one, though clearly the fact that the claimant had been unable to attend meetings because of illness contributed to that situation. There is no evidence that her suspension was kept under review.

 

15 On 6 March 2015, Mr McCartney wrote to the claimant, setting out formally the outcome of his investigation. It did not add anything to what he had told her at the meeting of 24 February 2015. In the meantime, the claimant had accepted a transfer as a sales adviser to Toyota, Boucher Road, which had been offered and she started there on 9 March 2014. Mr McCartney again told the claimant that any request for reduced hours in her new post would be a matter for consideration by her new manager, Mr Richard Hillis of Toyota Aftersales.

 

16(i) Various meetings took place in March 2015 between the claimant, Rosemary Chapman and the claimant's new line manager in an effort to take this matter forward. A feature of these meetings was the presence at them of Norma Bolton, of Disability Action, with whom the claimant had got in touch, and who had been involved, without any objection from the respondent, who had worked with her before.

 

(ii) Discussion revolved around various matters, such as the claimant's phased return to work, how long it should take, how the respondent could accommodate it, and the claimant's ongoing request for reduced hours. In respect of the latter issue, the respondents were looking at it in terms of job-sharing, and the potential practical difficulty of getting someone else to job-share.

 

Again, the respondents were very much focused on the needs of the business.

 

Another issue which loomed large in these discussions was the potential non-availability of a company car to the claimant if she went on reduced hours. Norma Bolton suggested that a possible solution was for the claimant to apply for Disability Living Allowance where a car would be part of that package. Ultimately nothing came of this.

 

(iii) On 23 April 2015, the claimant was offered a job-share post. A colleague returning from maternity leave was looking for reduced hours. The claimant was offered 28.5 hours per week - working three full days and alternative Saturdays.

 

The claimant, however, could not financially afford such a reduction of hours, and from the respondents' point of view what she was looking for - an eight hour reduction - was not a possibility.

 

17(i) On 23 April 2015, Disability Awareness training was held at the company's premises on the Boucher Road. It dealt with stress, anxiety and depression and the purpose of the training was to raise the awareness of employees with these issues, and to familiarise them with issues which might arise when working with someone who suffered from these conditions.

 

(ii) The training was conducted by Norma Bolton of Disability Action. The claimant, who was present, with a selected group of colleagues, explained to them how depression affected her, and what could be done to help.

 

Over lunchtime Richard Hillis, who was at another meeting in a nearby building was called out of it and told that Norma Bolton wished to speak to him. Ms Bolton told Mr Hillis that in the course of the disability awareness meeting, it emerged that the claimant had been experiencing severe panic attacks. In the course of these she suffered from numbness in her legs and arms along with hyperventilation. During a more severe attack she could be left in a state of semi-paralysis with no feeling in her arms. The claimant had not suffered any such attacks at work, but had recently suffered two at home. The claimant, who was present, told Richard Hillis that these attacks could come on without warning.

 

(iii) Norma Bolton told Richard Hillis that an action plan/risk assessment would be needed in case the claimant experienced such an attack at work. Specifically, there was a risk of her falling off her current chair (which had no arms, and therefore a suitable replacement would be required) a 'Medevac' chair would be needed should the claimant become immobile; during any attack the claimant might be unable to self-medicate, so one of her colleagues should be able to access her medicine and assist her in taking it (as had happened at home with her partner).

 

(v) Later that afternoon, the claimant was asked to go to the boardroom to meet Richard Hillis and Rosemary Chapman. The claimant was told that the company car was being taken off her and that she was being removed from the company's vehicle insurance with immediate effect. The reason advanced for this course of action was the information about the claimant's panic attacks of which the company had just become aware. They had had no knowledge of these symptoms before the disability awareness meeting conduct by Norma Bolton.

 

(vi) Clearly the removal of her car had a serious impact on the claimant. It formed part of her work benefits. She used it to travel to work in Belfast from her home near Newcastle, dropping the children off at nursery on the way.

 

As far as she was concerned, in the light of all that had gone before, she saw this as another act of discrimination and victimisation; and on 28 April she lodged a further grievance in relation to the removal of her company car and the insurance cover, and an alleged continuing failure to make reasonable adjustments.

 

18(i) The removal of the claimant's car and insurance cover led to a chain of communications between the respondent company and her, letters and e-mails from the respondent company to its Head Office, and in turn to their insurance brokers and the insurance company, Allianz. Reports were also sought from the claimant's general practitioner and there was a further reference to Dr Brennan, the OH consultant with Maitland Medical. The claimant at the respondent company's request telephoned the Driver and Vehicle Agency in Coleraine. She did this on two occasions, in the presence of company managers. She was asked to do it on the second occasion because the respondents felt that she had not made complete disclosure to DVA.

 

(ii) The medical evidence provided by the claimant from her GP was favourable to her - it stated she was fit to drive - and Dr Brennan the OH consultant was also favourable, emphasising that the risk was comparatively small and warning against overreacting. However, her own medical witness, Dr McGarry, did accept in cross-examination that if someone's condition was such that she could potentially need a 'Medevac' chair, this could raise concerns about her driving.

 

(iii) During this time the claimant was effectively barred from using a company vehicle. No restriction was placed upon her driving by DVA. Indeed, during this period she was able to hire a car to get to work. The hire company was happy to insure her as she retained a full driving licence and there was a letter from her GP stating that she was fit to drive.

 

(iv) On 12 May 2015 when DVA, having been fully apprised of the situation, issued a letter which did not place any restrictions on her driving, the insurer (Allianz) confirmed that she was insured to driver under the company's group policy, and the claimant was informed that she could have her company car back.

 

19(i) We have stated, at Paragraph 17(vi) above, the impact which removal of her car had on the claimant. She said:-

 

"I felt the company were putting barriers up, making it difficult for me to do my job in the hope that I would leave the company."

 

She also felt that in their dealings with her over this issue, they kept moving the goalposts in terms of what they required of her and wanted her to do to satisfy them she should be allowed to drive. She complained that at the end of the day, it had taken one e-mail to sort it all out.

 

(ii) While the claimant's attitude is understandable in the light of everything that had gone before, contrary to what she complained, it had clearly taken more than one e-mail to resolve the matter. We have referred above to the extensive communications among the various parties who had an interest in, or who were involved in, this matter.

 

(iii) As far as the company is concerned, what had emerged from the meeting with Disability Action on 24 April 2015 about the claimant's panic attacks, and the potential for resulting paralysis was extremely concerning. It just could not be ignored, and something had to be done to address the problem which had arisen.

 

(iv) The initial measures taken by the employer were reasonable - contacting the insurers to inform them of the position, and not permitting the claimant to drive pending advice and guidance from them. We do not set out the content of the various e-mails, reports and letters relating to this matter, but it is clear from these documents that it was the company's insurers which was effectively calling the shots here once they were made aware of the claimant's health issue.

 

Aside from this, in the industrial experience of one of the panel members who has knowledge of dealing with insurance for vehicle fleets, a failure by the insured to notify and involve the insurer in a matter such as this could lead to a failure to indemnify in the event of a road traffic accident.

 

20(i) In the interim - on 28 April 2014 - the claimant had raised a further grievance alleging ongoing discrimination and victimisation arising out of the continuing failure to reduce her hours and the decision of 24 April 2014 to withdraw her company car.

 

(ii) This was acknowledged by the company on 30 April 2014. She was told that a meeting would be arranged to discuss that grievance, and that she could be accompanied by Norma Bolton, of Disability Action. She was also told that the company continued to consider her request for a reduction in working hours and that it was hoped to find a reasonable adjustment that suited both her and the business. The reasons for the removal of her car were also reiterated to her.

 

(iii) Around this time there were other communications between the claimant and the company. Medical and Occupational Health reports were exchanged, and in relation to her request for reduced hours, her GP provided a letter dated 28 April 2014 saying that she suffered from anxiety and depression, that a 50 hour working week would be detrimental to her health, and that the claimant had informed her GP that a 40 hour week would be more suitable for her to work at present.

 

(iv) More significantly, from the point of view of the claimant, she received a letter dated 28 April 2014 from Jeff McCartney, Dealer Principal, who had carried out the investigation into her suspension, in relation to being placed on SSP. He stated that, having reviewed the matter, he would be making arrangements for her to receive a payment representing her loss of earning during the period she had been placed on SSP, and any sales bonuses she would likely have received had she been at work. Such a payment was made into her account.

 

21(i) On 12 May 2014 - the same day as the driving issue was resolved - the claimant was offered a four day/forty hour week, together with a company car (notwithstanding that she was not working a full week).

 

This new working pattern, which the claimant accepted, was to take effect from 25 May 2014. The company had provided an additional service adviser who would work two days a week, though only one day was required.

 

(ii) The end result here was that the claimant got what she wanted, some 14 months after it had been requested. As against that her previous request to change her working hours had been considered by the company, and alternative arrangements had been offered which she had declined - on at least one of those occasions after a long period on her part.

 

The cost of the new arrangement was to be met by the company.

 

22(i) When the claimant moved to Toyota Boucher Road, she complained that Andrew Gilmore started holding meetings and conducting interviews there. Her evidence was that these would normally have been held at Head Office, a separate building where there was more space. She said that Andrew Gilmore's motive in doing this was to put pressure on her and unnerve her as a result of taking a tribunal claim. In effect, it was an act of harassment.

 

(ii) We are satisfied, however, from the evidence of the respondents that there were no hard and fast rules as to where meetings and interviews were held, and in any event, find it difficult to understand how such meetings put the claimant under the pressure she alleged.

 

23(i) Having stated the facts as found by us, we now proceed to set out the relevant law. It is to be found in the Disability Discrimination Act 1995, as amended by the Disability Discrimination (Amendment) Regulations (Northern Ireland) 2004.

 

(ii) Section 3A(5) of the Act prohibits direct discrimination. It provides:-

 

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

 

Direct Discrimination occurs where a person's disability is the reason for the less favourable treatment. It cannot be justified.

 

As far as the comparator in a direct disability case is concerned, that comparator may be actual or hypothetical and is someone who is not disabled, or who did not have the same disability as the claimant. See : London Borough of Lewisham v Malcolm [2006] IRLR 701 and the Disability Code of Practice (Employment and Occupation) Paragraphs 4.8 and 4.13.)

 

24(i) The duty to make reasonable adjustments arises by virtue of Section 4A of the 1995 Act. It provides:-

 

"(1) Where -

 

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

 

(b) any physical feature of premises occupied by the employer places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to take in order to prevent the provision, criterion or practice, or feature, having that effect."

 

(ii) The factors to be taken into account by a court or tribunal in determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make a reasonable adjustment and a non-exhaustive list of examples of reasonable adjustments are set out at Section 18B of the Act, and we do not repeat them here. Whether something is a reasonable adjustment is for tribunal to decide, objectively, on the facts of the particular case. ( See : Smith v Churchill Stairlifts PLC [2006] IRLR 41 CA.)

 

Also, the making of a reasonable adjustment does not lead to the situation where everything remains the same for a claimant. Taylor v Dumfries & Galloway CAS [2007] SLT 425.)

 

The duty to make reasonable adjustments is extremely wide in scope. This is clear from the judgment of Baroness Hale in Archibald v Fife Council [2004] IRLR 65.

Notwithstanding the width of this provision, it is clear that the duty to make a reasonable adjustment is not limitless. At p 659, Baroness Hale stated:-

 

"It is ... common ground that employers are only required to take those steps which in all the circumstances it is reasonable for them to have to take. Once triggered, the scope of the duty is determined by what is reasonable, considered in the light of the factors set out in Schedule 6(4) ...

 

(iii) Regard must also be had to the guidance given to tribunals in Environment Agency v Rowan [2008] IRLR (EAT) where His Honour Judge Serota stated, at paragraph 27, that a tribunal considering a claim that an employer has failed to make a reasonable adjustments must identify:-

 

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

 

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

 

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

 

(d) the nature and extent of the substantial disadvantage suffered by the claimant. It should be borne in mind that identification of the substantial disadvantage suffered by the claimant may involve a consideration of the cumulative effect of both the 'provision, criterion or practice applied by or on behalf of the employer and the physical feature of premises', so it would be necessary to look at the overall picture."

 

He continued:-

 

"In our opinion, an employment tribunal cannot properly make findings of a failure to make reasonable adjustments without going through that process. Unless the employment tribunal has identified the four matters we have set out above, it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, placing the disabled person concerned at a substantial disadvantage."

 

25(i) Section 55 of the Disability Discrimination Act 1995, as amended by Regulation 21 of the Disability Discrimination Act (Amendment) Regulations (Northern Ireland) 2004 contains the standard provision relating to victimisation which mirrors identical provisions found in other legislation outlawing discrimination on various grounds both in this jurisdiction and more widely throughout the United Kingdom.

 

(ii) Victimisation arises where a claimant has performed a 'protected act'. The claimant must identify an appropriate comparator and the doing of the protected acts must be the cause of the less favourable treatment. The appropriate comparison is between the claimant and someone who has not done a protected act. (See Chief Constable of West Yorkshire Police v Khan [2007] ICR 2065 HL.)

 

In Simpson v Castlereagh Borough Council [2014] NICA 1, Girvan LJ stated, at Paragraph 14 of his judgment that:-

 

"A tribunal determining the question of victimisation must address the issues, firstly, whether the claimant suffered a detriment, and, secondly, whether she was subjected to less favourable treatment as compared to an actual or hypothetical comparator by reason of the fact that she had done a protected act. "

 

(iii) More recently, in McCann v Extern Organisation Ltd [2014] NICA 65, Horner J at Paragraphs 14, 15 and 17 summarised the law on victimisation as follows:-

 

"(14) ... The IDS Handbook states at Paragraphs 9.41 and 9.42:-

 

'9.41 To succeed in a claim of victimisation, the claimant must show that he or she was subject to the detriment because he or she did a protected act or because the employer believed he or she had done or might do a protective act ...

 

9.42 ....  The essential question in determining the reason for the claimant's treatment is always the same: what consciously or sub-consciously motivated the employer to subject the claimant to the detriment? In the majority of cases, this will require an inquiry into the mental processes of the employer ...'

 

(15) As Harvey said at Paragraph [468] in respect of the test for victimisation -

 

'Analysing the elements of any potential victimisation claim requires somewhat different considerations as compared to the other discrimination legislation.

 

...

 

A claim of victimisation requires consideration of:-

 

The protected act being relied upon

 

The correct comparator

 

Less favourable treatment

 

The reason for the treatment

 

Any defence

 

Burden of proof'

 

(16) ...

 

(17) As Harvey says at Paragraph 488:-

 

'The key issue in such situations will be the tribunal's understanding of the motivation (conscious or unconscious) behind the act by the employer which was said to amount to victimisation.'."

 

(iv) The following points should also be noted about victimisation. In Nagarajan v London Regional Transport [1999] ICR 877, the House of Lords, reversing the Court of Appeal, held that in complaints of victimisation (in that case under similar provisions in the Race Relations Act) the motive of the alleged discriminator was irrelevant, and that the question to be asked was a simple causative one, namely whether the claimant would have been treated in that way but for the protected act. Therefore conscious motivation is not a necessary ingredient in victimisation. A subconscious motive is sufficient.

 

Additionally, whether the actions of the alleged discriminator constitute victimisation depends on the perception of the employee who alleges victimisation. However, the perception must be reasonable. ( See : Derbyshire v St Helen's Metropolitan BC [2007] UKHL 16; Northern Ireland Fire and Rescue Service v McNally [2012] Eq LR 821 NICA).

 

26 As far as harassment is concerned (Section 3B of the 1995 Act), Underhill J, as he then was, in Richmond Pharmacology v Dhaliwal [2009] IRLR 336 (a racial harassment case) emphasised at Page 336, Paragraphs 13 - 15, that where a claimant was unreasonably prone to take offence, then even if she did genuinely feel that her dignity had been violated, there would not be harassment. The issue was one for a tribunal, having regard to all the relevant circumstances, including the context of the conduct in question.

 

27(i) Before turning to the burden of proof we remind ourselves that direct evidence of discrimination (of any type) is rare and courts and tribunals will frequently have to infer discrimination from the facts which they have found. Furthermore, we have kept in mind in reaching our decision that discrimination in the particular context of disability can often take place where an employer makes assumptions, based on stereotypes, about a person's disability. ( See : Aylott v Stockton-on-Tees BC [2010] EWCA Cir 90 CA.

 

(ii) Section 17A(1C) sets out the burden of proof in disability discrimination cases. Following the now common formula set out in legislation outlawing other forms of discrimination, it provides as follows:-

 

"Where, on the hearing of a complaint, under sub-section (1), the complainant proves facts from which the tribunal could, apart from this sub-section, conclude in the absence of a adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves he did not so act."

 

(iii) In Igen Ltd (formerly Leeds Careers Guidance) and Others v Wong; Chamberlain Solicitors and Another v Emokpae; and Brunel University v Webster [2005] IRLR 258, the Court of Appeal in England and Wales has set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race, and disability discrimination. This guidance is now set out in full at an Annex to the judgment in the Igen case. We therefore do not set out again in full, but have taken it fully into account.

 

(iv) In short, the claimant must prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed an unlawful act of discrimination. The tribunal will also consider what inferences it is appropriate to draw from the primary facts which it has found. Such inferences can include inferences that it is just and equitable to draw from the provisions relating to statutory questionnaires, a failure to comply with any relevant Code of Practice, or from failure to discover documents or call an essential witness.

 

If the claimant does prove facts from which the tribunal could conclude in the absence of an adequate explanation from the respondent that the latter has committed an unlawful act of discrimination, then the burden of proof moves to the respondent. To discharge that burden the respondent must show, on the balance of probabilities, that the treatment afforded to the claimant was in no sense whatsoever on a proscribed ground (here disability). The tribunal must assess not merely whether the respondent has proved an explanation for the facts from which inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that disability was not a ground for the treatment in question. Since the facts necessary to prove an explanation will normally be in the possession of a respondent, a tribunal will normally expect cogent proof to discharge the burden of proof.

 

(v) Although the above logically establishes a two-stage process, it is not to be applied slavishly or mechanically, and in deciding whether the claimant has made out a prima facie case the tribunal must put to one side the employer's explanation for the treatment, but should take into account all other evidence, including evidence from the employer. ( See : Laing v Manchester City Council [2006] IRLR 748 EAT; Madarassy v Nomura International Ltd [2007] IRLR 246; and Arthur v Northern Ireland Housing Executive and Anor [20070] NICA 25.)

 

(vi) These cases were considered more recently by HM Court of Appeal in Northern Ireland in Curley v Chief Constable of the Police Service of Northern Ireland and Anor [2009] NICA 8 and Nelson v Newry & Mourne District Council [2009] NICA 24.

 

In the former, Coughlin LJ at paragraph 16 of his judgment emphasised the need for tribunals hearing cases of this nature to keep firmly in mind that such claims are grounded upon an allegation of discrimination (in that case religious discrimination). This was re-emphasised by Girvan LJ at paragraph 24 of the judgment in the latter case.

 

(vii) More specifically, in relation to the duty to make reasonable adjustments, the burden of proof was considered in Project Management Institute v Latif [2007] IRLR 579. In Harvey on Industrial Relations and Employment Law, the position is summarised as follows:-

 

"... [T]he EAT held that a claimant must prove both that the duty has arisen, and also that it has been breached, before the burden will shift, and require the respondent to prove that it complied with the duty. There is no requirement for claimants to suggest any specific reasonable adjustments at the time of the alleged failure to comply with the duty; in fact it is permissible ... for claimants to propose reasonable adjustments on which they wished to rely at any time up to and concluding the ... hearing itself."

 

28 Having set out the relevant law, we now proceed to apply it to the facts we have found:-

 

(i) We reiterate some of the points that we made earlier. The claimant was, in our view, a challenging person to manage. The respondents, however, had the duty to deal with the state of affairs which had arisen, in accordance with the legislation covering disability at work. In this task they started off at a disadvantage for, as indicated, the knowledge of senior managers of the provisions of the Disability Discrimination Act 1995 at times verged on the non-existent. Mrs Chapman, who was the HR Adviser gave very little relevant professional advice in relation to the legislation and its practical applications. Her main role was that of a note taker at the various meetings which took place.

 

(ii) The timeframe for dealing with the request for reduced hours - 14 months - was long drawn out. We have accepted that this was not all the fault of the respondents - and, it has to be said the fact that the respondents took so long is again not consistent with the claimant's allegation that they wanted rid of her.

 

Her request for reduced hours was not considered in an appropriate manner. It was consistently dealt with as an application for flexible working, with an emphasis on the needs of the business. There was little or no focus on the needs of the claimant. There was also a disproportionate emphasis on job-sharing, with pressure to accept that arrangement as the only alternative to full-time work.

 

Had the employer focused correctly on the concept of reasonable adjustments under the Disability Discrimination Act 1995 and taken a proactive approach to the matter, all members of the tribunal satisfied that the claimant would have had the benefit of the reduced hours she sought at an earlier stage. We are therefore satisfied that the first-named respondent failed in its duty to make a reasonable adjustment and that those adjustments should have been in place by January 2015. In this respect we have reservations that we are here erring on the side of generosity towards the employer.

 

29(i) As far as the claimant's suspension from work is concerned, a majority of the tribunal find that this did not constitute discrimination or victimisation. It was, from the claimant's point of view, more than coincidental, if not suspicious, that her suspension came shortly after an OH report which had been favourable to her. However, this ignores the fact that there were other factors present. There were ongoing issues with the claimant's lateness, attendance, and her relations with colleagues and her alleged attitude to customers. The majority would concede that the suspension was not handled well - there was a lack of any basic investigation, or of any consideration whether something as drastic as suspension was appropriate in the circumstances. Some of the comments being made about the claimant could have been little more than tittle-tattle or gossip. However, the majority find that this is indicative of bad practice within the company. While suspension was arguably inappropriate and became unnecessarily protracted, they are satisfied that a non-disabled person would have been treated in the same way in these circumstances.

 

(ii) A minority would find the claimant was victimised. In his view, the company knew of her mental health issues. It was causing them difficulty. They wanted rid of her and jumped on the complaints in their efforts to do so.

 

30(i) Again, in relation to the claimant being placed on statutory sick pay, a majority are satisfied that this was not an act of discrimination. It was done in purported compliance with company policy and there was no evidence before us from which we can infer that a non-disabled person would have been treated differently in the same or similar circumstances. Had the claimant not been suspended, but ill, she would only have received SSP. That is not to say that the majority consider that the matter was handled well, or that it had been clearly thought out.

 

We accept, however, that when the company ultimately paid the shortfall in the claimant's wages following Mr McCartney's investigation, it did so by way of a concession, and not to acknowledge that it had been in the wrong.

 

(ii) The dissenting member of the tribunal considered that the placing of the claimant on SSP was a vindictive act by management, which discriminated against her on the ground of her disability.

 

31(i) The majority are satisfied that the removal of the claimant's company car (and associated issues, such as the requirement for her to have a mandatory driving licence check) did not discriminate against the claimant on the ground of disability. We are satisfied that local management were not using this issue to make life difficult for the claimant, or that they responded to it in a way which was disproportionate. The insurers had been made aware of a potential health issue on the claimant's part. It was the insurers who were in control of this issue, and once they received the information they needed, the claimant was told she could drive. The majority consider that their finding in this regard is supported by the written communications between the first-named respondent and its insurers.

 

(ii) The minority member, on this issue, like the SSP issue, took the view that the company acted in a discriminatory manner, and that this was again part of an attempt to force the claimant out of her job.

 

32 All members of the tribunal are satisfied that the holding of meetings and interviews at Toyota Boucher Road did not constitute harassment. Equally, we were all satisfied on the basis of the evidence before us, that there is nothing from which we can infer discrimination, victimisation, or harassment in any other respect.

 

33 We shall now give the parties a reasonable opportunity to agree compensation between themselves. Failing such agreement, the matter will be re-listed for a hearing on remedy.

 

 

 

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 11 - 15 April 2016 inclusive; and

17 - 19 May 2016 inclusive, at Belfast

 

 

Date decision recorded in register and issued to parties:

 

 

 

 

 

 

A N N E X

 

 

 

 

 

 

 

Case Reference Nos: 83/15 and 1356/16 - Consolidated statement of issues