Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

   CASE REFS:          345/12

2461/12

485/13

 1621/13

 

 

 

CLAIMANT:                          Vivienne Elizabeth Costley

 

 

RESPONDENTS:               1.         Health and Safety Executive for Northern Ireland

                                                2.         Jim Keys

                                                3.         Dermot Breen

                                                4.         Pip Crook

                                                5.         Donna Giboney

                                               

 

 

DECISION

 

The unanimous decision of the tribunal is that all the claimant’s claims are dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge:          Employment Judge Greene

 

Members:                             Dr C Ackah

                                                Mrs A Gribben

 

 

Appearances:

 

The claimant appeared in person.

 

The respondents were represented by Ms N Murnaghan QC, instructed by DSO.

 

 

The Sources of Evidence

 

1.            The tribunal received evidence from the claimant and on her behalf from Frank Cammock, Dr Crowther and Pauline Hughes and for the respondents from
Anne Boylan, Nicola Monson, Cyril Anderson, Donna Giboney, Pip Crook, Adrian Harris, James King and Jim Keys.  With the consent of the parties the witness statement from Dr O’Kane was excluded from the tribunal’s consideration and disregarded in relation to its contents.  The tribunal also received eight bundles of documents amounting to 513 pages and written submissions and legal authorities from both parties. 

 

2.            Neither Dermot Breen nor Rosemary Fennell appeared to be cross-examined due to their respective illnesses.  Their witness statements were put in by the respondents under the Civil Evidence (Northern Ireland) Order 1997 despite objections from the claimant, with the tribunal to decide what weight, if any should be given to them. 

 

The Claim and Defence

 

3.            The claimant claimed that she suffered discrimination on the basis of her sex and disability; that she had been victimised and harassed; that the first respondent had failed to make reasonable adjustments arising from her disability; that she suffered a breach of contract; and that she suffered an unfair dismissal.  The respondents disputed the claimant’s claims in their entirety. 

 

The Issues

 

4.            (1)       Following some 12 case management discussions and other hearings the parties agreed the following issues for determination.   

 

ISSUES IN THE PROCEEDINGS

CAUSES OF ACTION

(1)          Suspension   (2)          Commencement of Disciplinary Procedure and Investigation   (3)          Alleged failure to make Reasonable Adjustments (as specified in recently provided list)       (4)          Alleged failure to follow Internal Grievance Procedures   (5)          Alleged failure to allow the claimant to complete one outstanding assignment in relation to her University Course   (6)          Termination of Employment   (7)          Initial refusal to pay what the claimant considered to be inadequate notice pay   (8)          Alleged breach of privacy in relation to the claimant’s documents   (9)          Initial withholding of the claimant’s notes and documents   (10)       Failure or omission to redeploy the claimant to some other post   (11)       Mrs Crook’s sending of letter dated 31 May 2013 to the claimant

DDD; DRD; DDADV; SDOVD   DRD; DDADV; SDOVD     RA         DDD; DRD; DDAVD     DDD; DRD; DDAVD         UD; DDD; DRD     DDAVD     DRD; DDAVD       DDAVD     RA     DDAVD

 

                        DDD:              Direct Disability Discrimination

                        DRA:              Disability Related Discrimination

                        DDAVD:         Disability Discrimination Act Victimisation Discrimination

                        SDOVD:         Sex Discrimination Order Victimisation Discrimination

                        RA:                 Reasonable Adjustment

                        UD:                 Unfair Dismissal

 

            (2)       In a document of 20 June 2013 entitled “A list of all the Acts (and Omissions) in respect of which compensation is claimed” the alleged failures to make reasonable adjustments are set out at section 3 in the following terms:-

 

                        “(A)     To support me on my return to work from 21st March 11 until Suspension 21st Nov 11.

 

                        (B)       to support me in the completing 3 remaining assignments to obtain a Post Grad Diploma in Regulatory Occupational Health and Safety with Warwick University.

 

                        MS Giboney and Pip Crook acknowledged at a meeting with me on 14/6/11 that they had overlooked advice from the Occ Health Consultant Dr Crowther that I was covered under DDR.  DHR notified by Dr Crowther in Dec 10. 

 

                        At this meeting, I spoke in confidence with DHR on how my return to work was poorly managed by my line manager, training co-ordinator in accordance with NICS harassment policy.

 

                        I did NOT put in a complaint against these individuals, I just explained how I felt.

 

                        MS Crooks and MS Giboney, after this meeting broke my confidence, and approached my line manager and Training co-ordinator re: my concerns without my consent on 28th and 30th June 11.  Also they informed my Grade 6 Brian Monson, Head of Workplace Health.

 

                        This I believe was detrimental in affecting my working relationship with my managers listed.

 

                        (3 months after I had returned to work) re: Reasonable Adjustments (OHS form).

 

                        My Consultant Psychiatrist Dr Meenagh, wrote in August 11 to my Line Manager Cyril Anderson.  A meeting with Donna Giboney on
20th Sept 11, is when these adjustments were discussed. 

 

                        (I had already been in work 6 months).  These ADJUSTMENTS WERE NOT IMPLEMENTED. 

 

                        I WENT ON LEAVE IN Oct 11-10^th Nov 11.  On 11^th Nov 11 first day back from leave I was summoned to a meeting with my Line Manager.  My request for a rescheduling of meeting - resulted in my SUSPENSION on 21st Nov 11.  I had been due to have a meeting with the DISABILITY ADVISORY SERVICE and my Line Manager Cyril Anderson and MS Giboney on
21st Nov 11.  I had approached them for help as I was experiencing communication problems with my managers and felt they didn’t understand my disability.  This did not take place as I was suspended.

 

                        DHR were advised by Dr Crowther and my Psychiatrist on my return to work in March 11, that a mixture of operational/work and written work would be beneficial for me. 

 

                        This was not implemented on my return to work from 21/3/11 to 21/11/11.  I was not given visits/inspections by my manager during this period.

 

                        HSENI demanded I do academic work alone (3 academic assignments).  Commenced on a phased 12 week return impacted on my mental health condition.

 

                        Warwick University; Advised Deferral until I felt ready to resume academic study.  My first assignment was given to me for submissions 5th Oct 11.  2^nd assignment was 21st Nov 11.  Last assignment was to commence on 5^th Dec 11 with submission date in middle of Jan 12.”

 

            (3)       Before beginning her examination in chief the claimant formally withdrew any claim for discrimination on the ground of sex.  She indicated the issues needed to be amended accordingly.  Ms Murnaghan, for the respondents, had no objection to this course of action.  Accordingly the claimant’s claims for victimisation discrimination on the ground of sex are dismissed.

 

            (4)       On 2 February 2015 the claimant applied to add a breach of privacy, in relation to an application she had made for an injury award, as a further incident of disability discrimination.  Having considered the application, following the claimant’s submissions and having heard the submissions on behalf of the respondents, the tribunal refused to make such an amendment.  Oral reasons were given at the time of the refusal. 

 

            (5)       The respondents accept that the claimant suffers from a disability for the purposes of the Disability Discrimination Act 1995, as amended.  The claimant’s disability is severe depression.

 

            (6)       The parties proposed and the tribunal agreed that the hearing would deal with liability only.

 

 

Findings of Fact

 

5.         (1)       The claimant was born on 2 October 1967.  She is an occupational health nurse and began working with the Health and Safety Executive for Northern Ireland (HSENI) (first respondent) on 5 June 2005 as a workplace health nurse.  Having successfully applied for the post of trainee health and safety  inspector in April 2007 she was re-graded as a health and safety inspector in December 2009.  She continued to work until 4 June 2013 when she was medically retired.

 

            (2)       The claimant earned £2,908.00 approximately per month gross and £2,164.00 net.

 

            (3)       The HSENI (first respondent) is the health and safety authority for Northern Ireland.  Jim Keys (second-respondent) was the chief executive for the HSENI from October 1999 until 31 August 2012 when he retired.

 

            (4)       Dermot Breen (third respondent) has been employed by the HSENI (first respondent) and its predecessors in title since 1985.  In 2000 he became deputy chief executive of the HSENI and in 2005 became head of Services Division.  By reason of the terminal illness and subsequent death of his wife and how that affected him thereafter Mr Breen was unable to attend before the tribunal to give evidence.  However he had previously prepared a witness statement.

 

            (5)       Pip Crook (fourth respondent) has been employed by the HSENI (first respondent) since June 2009.  She is head of Human Resources and Finance with the HSENI.

 

            (6)       Donna Giboney (fifth respondent) was the deputy principal in the HSENI’s (first respondent) Human Resources Department up until July 2013 when she transferred to the Department of Justice. 

 

            (7)       The claimant was diagnosed with severe reactive depression by Doctor C Meenagh, psychiatrist, in October 2010.  On 9 December 2010 the Occupational Health Service (OHS) advised the HSENI (first respondent) that the claimant was to be treated as disabled for the purposes of the Disability Discrimination Act 1995 as amended.

 

            (8)       The claimant took up the post of trainee health and safety inspector on 16 April 2007.  As part of her training she had to complete a four year diploma course through Warwick University.

 

            (9)       On 24 February 2009 the claimant became ill with anxiety and depression and was absent from work until 4 July 2009.  On her return to work she was given a phased return.

 

            (10)     The claimant passed her exam and completed all the necessary components to secure her position as health and safety inspector.  Her re-grading was carried out in November 2009 and to ensure that the claimant was not disadvantaged it was backdated to 16 April 2009.

 

            (11)     The claimant commenced a second period of sick absence on 30 June 2010 and she returned to work on 7 March 2011.

 

            (12)     On 28 February 2011 the claimant had a scheduled meeting with Pip Crook (fourth respondent), Richard Meredith and Bryan Monson to discuss the claimant’s phased return to work.

 

            (13)     On 7 March 2011 the claimant returned to work on a phased basis.

 

            (14)     On 10 May 2011 the claimant met with her line manager, Cyril Anderson, and the training co-ordinator, Nikki Monson to discuss and agree how she would complete her diploma.  It was agreed, allowing for the claimant’s disability, that she would be allowed 15 days for each assignment.  The claimant made the decision that she wanted to commence the first assignment from 10 May 2011.

 

            (15)     By reason of the voluminous amount of evidence given to the tribunal it will deal with its findings of fact under the heading of each of the issues for determination.

 

            Issue 1

 

            Suspension

 

            (16)     The applicable policy on suspension is set out at the NICS Disciplinary Policy and Procedures at section 6.03.  The section deals with suspension at section 5 of The Disciplinary Investigation, where it states:-

 

                                    “Suspension from work with pay. 

 

                        5.3      There may be instances where suspension with pay is necessary while the investigation is carried out.  This may be because, for example, working relationships have broken down or there is a risk to an employee’s or the organisation’s property or responsibilities to other parties.  Suspension may also be considered if necessary in the public interest pending the outcome of criminal investigations.  Suspension with pay will be imposed only after careful consideration and will be reviewed to ensure that it does not become unnecessarily protracted.  It is not an assumption of guilt or a disciplinary penalty in itself, does not imply any decisions about the case and this important distinction should be kept in mind whenever any record or report of the period of absence is necessary.  You will continue to receive full pay and are expected to remain available during normal working hours and to fully co-operate with the investigation.  During your suspension you can apply for annual leave in the normal way.  As an alternative to suspension consideration may be given to a temporary transfer.  Departmental HR will make this decision.”

 

            (17)     On 14 June 2011 the claimant met with Pip Crook (fourth respondent):-

 

                        (a)       to discuss the latest OHS report.

 

                        (b)       to talk through forms which the claimant might wish to complete, and

 

                        (c)       to discuss the claimant’s progression from a phased return to full-time after 23 June 2011.

 

                        Rosemary Fennell, a work colleague, and Donna Giboney (fifth respondent) were also in attendance.  At the meeting the claimant raised a number of concerns about the arrangements for her phased return to work, including the undertaking of her assignments for Warwick University, and the type of work she was to do.

 

            (18)     A meeting was arranged for 28 June 2011 to discuss the claimant’s concerns.  At the meeting were Donna Giboney (fifth respondent), Cyril Anderson (claimant’s line manager), Nicola Monson and Pip Crook (fourth respondent).  Among the topics discussed were; how the claimant’s phased return to work was managed; the claimant’s personal performance agreement/personal development plan (PPA/PDP); an allegation that Nicola Monson was harassing the claimant; and about operational work for the claimant.  At the meeting Cyril Anderson stated that the claimant’s attitude, tone and manner had left him feeling vulnerable and uneasy, especially during one-to-one meetings.  He also felt threatened professionally and stated that he had cause for concern when meeting with the claimant.

 

            (19)     Arising from Cyril Anderson’s comments at the meeting on 28 June 2011, a meeting was scheduled for 30 June 2011 with Cyril Anderson, his line manager Dr. Bryan Monson, and Donna Giboney (fifth respondent) to discuss the staffing issues being encountered by Cyril Anderson.  At the meeting Cyril Anderson complained that the claimant’s conduct and behaviour were causing him stress and that he felt threatened (not physically) by her volatility and his health was being affected.  He added that the claimant was aggressive; that she refused to take reasonable instructions; that her behaviour was disruptive and it affected other members of staff rendering them unhappy in work.  It was agreed that all the matters needed to be brought to the claimant’s attention.

 

            (20)     By email of 11 July 2011 Cryil Anderson asked the claimant to undertake some operational work, specifying what he required her to do.  The claimant reacted positively to this by text of 27 July 2011.  By email of 1 August 2011 the claimant reported on her work and timetable.  She added that she regarded as victimisation and harassment ongoing requests from Cyril Anderson and Departmental HR to meet with her.  On receipt of the email of 1 August 2011 Cyril Anderson asked his superiors by email of the same date to investigate his actions to determine if the claimant’s allegations of victimisation and harassment were correct.  He also commented that it was no longer appropriate for him to meet with the claimant on a one-to-one basis.

 

            (21)     On 1 August 2011, by email, Donna Giboney (fifth respondent) invited the claimant to an informal disciplinary meeting to discuss:-

 

                        (a)       carrying out work in a private capacity as an occupational health nurse;

 

                        (b)       defamatory comments and accusations regarding colleagues at HSENI (first respondent);

 

                        (c)       behaviour within the workplace;

 

                        (d)       contacting colleagues to assist with assignments; and

 

                        (e)       responding to requests and emails in a timely manner.

 

                        The HSENI’s disciplinary procedures permit informal action where a minor breach of NICS procedures has occurred.

 

            (22)     The meeting took place on 15 August 2011.  The claimant was accompanied by Frank Cammock, NIPSA.  Adrian Harris attended as a notetaker and Donna Giboney (fifth respondent) was the chairperson.  Cyril Anderson was not in attendance.  Donna Giboney went through all five issues.  The claimant and her representative; objected to the meeting taking place at all; denied that it was a proper meeting; and challenged all the allegations.

 

            (23)     Donna Giboney (fifth respondent), in a letter of 15 September 2011, issued the claimant with a written informal warning in which three of the complaints against her were upheld; i.e. that she carried out private work amounting to a conflict of interest with her employment; made defamatory comments and accusations against colleagues; and her behaviour in the workplace amounted to misconduct which could have an adverse effect on the work of the department.  The letter also outlined the conduct expected from the claimant in the future. 

 

            (24)     Cyril Anderson arranged meetings with the claimant for 11 November 2011 to agree her PPA/PDP and for 14 November 2011 to carry out her mid-year review.  On 11 November 2011, it is alleged that the claimant accused Cyril Anderson of entrapment and that she had previously accused him of harassing and victimising her.  It was also alleged that on the afternoon of 11 November 2015, while in the general office, the claimant was on the telephone and was quite loud and crying and laughing as she discussed work issues with others that resulted in other members of staff within the office being uncomfortable.  In addition it is alleged that the claimant refused to attend a meeting with her line manager and her conduct towards her line manager and others caused them distress.  Neither meeting took place.

 

            (25)     Arising from the events of 11 November 2011, Donna Giboney (fifth respondent) wrote to the claimant by letter of 18 November 2011 informing her of a possible breach of conduct by her; that an investigation would be carried out by Andrew Ross; and that pending the investigation she would be suspended from 21 November 2011 with pay.  There was a dispute as to whether Donna Giboney had authority to suspend the claimant.  However on considering the various policies it is not clear that she did not have authority to do so.

 

            (26)     The suspension continued until the termination of the claimant’s employment.

 

            Issue 2

 

            Commencement of disciplinary procedure and investigation

 

            (27)     The claimant faced two disciplinary procedures, an informal disciplinary procedure, commenced on 1 August 2011 as is referred to above, and a formal disciplinary procedure which began on 18 November 2011 and arose from the events of 11 November 2011. 

 

            (28)     The informal disciplinary procedure culminated in the administration of an informal written warning.  The formal disciplinary procedure began on 18 November 2011 and involved interviewing a number of witnesses.  The claimant was never interviewed for a number of reasons.  She lodged six grievances which were dealt with first, in keeping with what is regarded as good practice.  It was not possible to arrange an interview date which suited the claimant by reason of the non-availability of her trade union representative or her ill-health or dealing with the grievances lodged or requests from the claimant for information under the Data Protection Act or her annual leave.  The claimant never attended an interview as part of the investigation process.

 

            (29)     The investigation report was received by the HSENI (first respondent) on 17 July 2012 which decided, on 5 September 2012, to proceed with disciplinary action against the claimant.

 

            (30)     The claimant was invited to a disciplinary meeting on Friday 12 October 2012 to discuss allegations that on 11 November 2011;- 

 

                        (a)       she had accused her line manager, Cyril Anderson, of entrapment having previously claimed that she was being harassed and victimised which could be perceived as malicious;

 

                        (b)       in the workplace she had a telephone conversation in the presence of colleagues that was unacceptable; and

 

                        (c)       she refused to attend a meeting and her behaviour and conduct towards her line manager and others had caused distress to them.

 

            Issue 3

 

            Alleged failure to make reasonable adjustments (as specified in recently provided list of 20 June 2013)

 

            (31)     Following a direction of Employment Judge Buggy, at a Case Management Discussion, the claimant provided the alleged specific failures of the respondents to make reasonable adjustments.

 

            (32)     Those alleged failures are set out above at paragraph 4(2) above.  The claimant asserts that on her return to work on 21 March 2011 the HSENI (first respondent) did not support her.

 

            (33)     Nicola Monson arranged a meeting with the claimant on 28 March 2011.  Present at the meeting were the claimant, Nicola Monson, Richard Meredith and Cyril Anderson.  The meeting was scheduled to discuss the options available in relation to the claimant completing her diploma course.  The meeting discussed the work that the claimant was required to do as part of her course.  The claimant raised a number of other issues about which she was unhappy.  The issues were not related to her diploma course nor are they part of her claim.  The claimant told the meeting that these issues would have to be addressed before she would do the diploma work (assignments) or operational work.  Although the order of assignments was discussed, no agreement was reached. 

 

            (34)     Dr Crowther, from the OHS, stated on 29 March 2011 to the HSENI (first respondent) that the adjustments being considered for the claimant appeared to be reasonable.

 

            (35)     Over Easter 2011 Nicola Monson arranged for a contact from Warwick University to be available for the claimant in connection with her diploma work as both she and the claimant’s line manager were on leave over Easter.  She also met with the claimant on 14 April 2011 to explain the arrangements and to agree an agenda for her next meeting with Cyril Anderson, her line manager.

 

            (36)     On 10 May 2011 the claimant met with Cyril Anderson and Nicola Monson to agree; a timetable for submission of assignments to Warwick University; time off for the summer; and how to balance that with operational work.  Additional time was given to the claimant for her assignments as a reasonable adjustment.  The claimant revealed at the meeting that she was scheduled to have a consultation with Dr Meenagh, her psychiatrist, on 11 May 2011.

 

            (37)     Pip Crook (fourth respondent) and Cyril Anderson met with Dr Crowther on 13 May 2011.  Dr Crowther was the OHS doctor selected by the claimant.  They met with Dr Crowther to discuss their concerns about the claimant’s health particularly in relation to the doing of the university assignments.  Dr Crowther endorsed the HSENI’s (first respondent) approach.

 

            (38)     The claimant telephoned Nicola Monson on 18 May 2011.  The subject of a deferral of her assignments was raised.  The claimant and Nicola Monson subsequently spoke by telephone on 23 May 2011.  The discussion reviewed the process to date and ended with the claimant indicating she would begin one of the assignments and review the procedure after that.  Nicola Monson stated that deferral would be a team decision as it affected the HSENI (first respondent) as well as the claimant and Warwick University.  Nicola Monson set up a contact with Warwick University to support the claimant further with her assignments should she wish to discuss them with the contact.

 

            (39)     Having reviewed the claimant on 25 May 2011 Dr Crowther advised the HSENI (first respondent) that the claimant was of the belief that operational work did not cause problems as the stress arose by reason of her assignments. 

 

            (40)     The claimant raised a number of concerns at a meeting on 14 June 2011 and the HSENI (first respondent) followed up on her concerns at subsequent meetings.  There is nothing in the minutes of 14 June 2011, about which the claimant had the opportunity to comment, that she sought to have recorded that the concerns to which she referred were confidential or that she did not want them followed up.  The issue of a deferral of her course was raised but the claimant did not want to pursue it at that time as she thought it was too late.  On 23 June 2011 the claimant told Cyril Anderson that she had just had an appointment with Dr Meenagh who had advised getting the assignments finished and out of the way.

 

            (41)     Dr Meenagh, the claimant’s psychiatrist, wrote to Dr Crowther, Chief Medical Adviser on 29 June 2011 and emphasised that the claimant should be allowed to finish her course work assignments so that she could then return to her every day work.  The claimant was directed to concentrate on her assignments.  On 24 August 2011 Dr Meenagh wrote to Cyril Anderson repeating his opinion that the completion of the course work assignments was a priority.  He asked that reasonable adjustments be made for her to do that.  He suggested the claimant be allowed to do a four day week for 12 weeks and get three weeks uninterrupted time to do each assignment and if possible she should be permitted to do it from home.

 

            (42)     In July 2011 Cyril Anderson gave the claimant some operational work about which she was positive.

 

            (43)     On 20 September 2011 the claimant and her trade union representative, Frank Cammock, met with Cyril Anderson and Donna Giboney (fifth respondent) to discuss making adjustments to the work for the claimant.  At the meeting a four day week was agreed for her SRA2 assignment and that the claimant would work through her assignments in accordance with medical advice.  As regards the claimant’s workload a reasonable timetable would be developed.  Working from home, as Dr Meenagh had suggested was agreed.  Time off for medical appointments would be in late afternoon if the claimant could make such an arrangement. 

 

            (44)     A further meeting occurred on 28 September 2011 to discuss the OHS5 form because the claimant did not agree with some of its points.  The meeting was less productive but the claimant agreed to go back to the OHS. 

 

            (45)     The claimant was suspended from 21 November 2011 and no further adjustments were made. 

 

            Issue 4

 

            Alleged failure to follow internal grievance procedures

 

            (46)     Between 22 June 2012 and 9 August 2012 the claimant lodged six grievances.

 

            Grievance G/127787

 

            (47)     The claimant alleged that Pip Crook (fourth respondent) and Donna Giboney (fifth respondent) had breached her confidentiality on 13 May 2011, 23 June 2011 or 24 August 2011.  Andrew Ross was appointed by HR Connect to investigate that grievance.  He reported to Dermot Breen (third respondent) on 24 April 2012. 

 

            (48)     The claimant alleged that the meeting of 14 June 2011 was a managing attendance interview to discuss the OHS report and that what was said was to be kept private and confidential.  She raised a number of work related issues which she believed were exacerbating her medical condition.  She did not raise a complaint or seek that an investigation be conducted, she alleged.  She further alleged that subsequent to the meeting, without her authority and with disregard for her confidentiality, a further meeting was held on 28 June 2011 at which her comments were related to Cyril Anderson, her line manager, and at a further meeting on 30 June 2011 her comments were conveyed to Bryan Monson.  She alleges that emails to Dermot Breen (third respondent) indicate he was copied into the correspondence relating to the meeting on 28 June 2011. 

 

            (49)     The claimant also alleged that Pip Crook (fourth respondent) had provided personal information about the claimant to Pensions Branch on 24 August 2011.  She further alleged that her confidentiality was violated when Pip Crook (fourth respondent) and Cyril Anderson met with Dr Crowther in May 2011 to discuss her mental illness.  Donna Giboney (fifth respondent) denied breaching the claimant’s confidentiality. 

 

            (50)     A grievance meeting did not take place as the claimant declined to meet with the investigating officer.  The decision maker Dermot Breen (second respondent), by letter of 31 May 2012, did not uphold the claimant’s grievance on the ground that there was no or insufficient evidence to sustain her allegations of breach of confidentiality.  He noted the decision was made in the absence of a grievance meeting with the claimant and informed the claimant of her right of appeal which she did not exercise as she objected to an appeal going ahead before her grievance, in relation to Dermot Breen being appointed to hear the grievance, had been heard. 

 

            Grievance G/127928

 

            (51)     On 29 May 2012 the claimant lodged a grievance against Dermot Breen (third respondent) for hearing grievance G/127787 because, she said, he had a conflict of interest having been involved in other matters in the past involving the claimant.  Mr Breen was interviewed as part of the investigation into the grievance. 

 

            (52)     By email of 1 August 2012 Frank Cammock, the claimant’s trade union representative, objected to Adrian Harris investigating the grievance as he was a staff officer and Dermot Breen (third respondent) a deputy chief executive as this violated, NICS protocol and LRA guidelines. 

 

            (53)     Adrian Harris notified Dermot Breen (third respondent) on 20 March 2013 that the grievance against him was not proceeding.  The tribunal was not provided by any party with further information on this matter. 

 

            Grievance G/127963

 

            (54)     On 26 June 2012 the claimant lodged a grievance about Donna Giboney (fifth respondent) acting as a decision maker in the disciplinary meeting D/140266, the disciplinary process arising from the events of 11 November 2011.  In the email of 1 August 2012 Frank Cammock also contended that it was inappropriate for Adrian Harris to investigate a complaint against his line manager. 

 

            (55)     A letter of 2 July 2012 exhibited but with a different grievance number G/D/127923, appears to relate to this grievance.  Nuala Kelly was appointed to investigate.  The claimant met with Nuala Kelly on 13 August 2012, accompanied by Frank Cammock, but she became upset and the meeting ended.  As the claimant became ill in September 2012 it could not be concluded.  The tribunal is unaware if that changed. 

 

            Grievances G/128002 and G/128003

 

            (56)     The claimant made a grievance against Adrian Harris being decision maker in her grievance against Donna Giboney (fifth respondent) and Dermot Breen (third respondent) on 9 August 2012.  Donna Giboney wrote to the claimant on 15 August 2012 to say that HSENI (first respondent) had concluded that neither complaint should proceed to investigation because;-

 

(a)      The HSENI (first respondent) has been mindful of the need to preserve confidentiality in regard to its dealings with the claimant and therefore the decision officers were appointed from within departmental HR, and

 

(b)      given the multiple grievances lodged against all appointed decision officers that it had reached a point of being unreasonable given that the HSENI (first respondent) was an independent stand alone employer with a finite number of staff. 

 

            Nothing appears to have happened thereafter in connection with these grievances.

 

Grievance G/127990

 

(57)     The claimant lodged a further grievance.  While it is mentioned as existing in the witness statement of Dermot Breen neither the claimant or her witnesses nor the witnesses for the respondents give any details of the grievance in their witness statements.  However in the respondents’ response in claim case reference 2461/12 the respondents contend that this grievance was against Jim King apparently because he was appointed appeal officer in relation to grievance G/127787.  The HSENI (first respondent) did not accept this grievance as it was of the view that there was not any justifiable reason preventing Jim King from acting as appeal officer.  It also considered that the information within this grievance was already being considered in two other grievances.

 

Issue 5

 

Alleged failure to allow the claimant to complete one outstanding assignment in relation to her University Course

 

(58)     Following the claimant’s suspension on 21 November 2011 she was informed by Donna Giboney (fifth respondent) by letter of 30 November 2011, that during her period of suspension she would not have access to the NICS network.  She indicated that she was aware that the claimant was working on an assignment and therefore the de-activation of the network was delayed until
7 December 2011 to enable the claimant to copy documents or information on to a data stick.  The claimant did not become aware of this until after 7 December 2011 and Donna Giboney made arrangements to copy the contents of the claimant’s H drive on to a CD which was given to her on 15 December 2011.  Having ascertained from Warwick University on 21 February 2012 that the claimant had not completed her assignment because she needed access to the HSENI GB intranet Donna Giboney arranged for the username and password to be sent to the claimant.  By 30 June 2012 Warwick University had not received the claimant’s third and final assignment.

 

Issue 6

 

Termination of employment

 

(59)     The HSENI (first respondent) did not dismiss the claimant.  Her employment ended because she was medically retired, apparently by agreement. 

 

(60)     On 13 September 2012 Dr Crowther of OHS ruled out medical retirement for the claimant as she did not meet the age permanency issue and because it would be difficult to justify as her ill-health issues were specific to working for the HSENI (first respondent) rather than doing similar roles in the civil service. 

 

(61)     Arising from his concerns about the claimant’s deteriorating medical health in September and October 2012 the claimant’s trade union representative, Frank Cammock, raised in November/December 2012 with Alan Lamont DETI would its HR department consider approaching HSENI (first respondent) about the possibility of medical health retirement for the claimant.  He did not have the claimant’s authority to do so but did not make Alan Lamont aware of that.

 

(62)     On 14 November 2012 Cyril Anderson, the claimant’s line manager, referred the claimant to OHS for a medical assessment, at her request.  The OHS report was referred to the claimant’s psychiatrist for further medical opinion.  Dr Crowther wrote to Pip Crook (fourth respondent) on behalf of the HSENI (first respondent) on 25 January 2013.  In his report he stated:-

 

                                 “I now have had sight of both the psychiatrist’s report and her General Practitioner’s comments and would confirm that she is unlikely to give regular and effective service in her current post or a similar post before pension age.

 

                                 Ill-health retirement is recommended and form MR1 is enclosed.”

 

            (63)     There is a comment in paragraph 7.4 of the ET1 in claim 1621/13 that the claimant, on 20 February 2013, attended a meeting, arranged under the auspices of the LRA, when the possibility of ill-health retirement for her was raised.  Pip Crook (fourth respondent) wrote to the claimant on 26 February 2013 informing her that OHS had informed HSENI (first respondent) that the claimant satisfied the criteria for medical retirement.  She stated that HSENI had to decide whether to accept the recommendation.  She also mentioned that there were issues with regard to her sick leave which required to be considered in the context of the Inefficiency Sickness Absence Policy and the ongoing disciplinary process.  She further indicated that the departmental HR intended to make a decision on the recommendation in the near future and that if the claimant or her representative wished to make representations they should do so in writing by 5 March 2013.  

 

            (64)     Pip Crook (fourth respondent) wrote to the claimant on 13 March 2013 and informed her that she would retire from the department on the grounds of ill-health and that her last day of service would be 11 April 2013.  She was informed of her right of appeal against the decision.

 

            (65)     On 14 March 2013 the claimant spoke to Adrian Harris and stated that 11 April 2013 was not acceptable as her last day of service as it did not give her sufficient notice.  The claimant indicated to Adrian Harris that this was the first time that she had been made aware of ill-health retirement.  However she did not raise any objection to ill-health retirement being considered.  Pip Crook (fourth respondent) wrote to the claimant on 20 March 2013 and stated having reconsidered the matter she had decided that the last day of service would be 14 May 2013.  The claimant informed the HSENI (first respondent) that 14 May 2013 was unacceptable as it did not give her full credit for her years of service.  The last day of service was changed to 4 June 2013.  The claimant did not appeal against this and she was medically retired from 4 June 2013.  The claimant did not state to the HSENI (first respondent) that she did not want to be retired on medical grounds or ask if there were alternatives for her to medical retirement. 

 

            Issue 7

           

            Initial refusal to pay what the claimant considered to be adequate notice pay

 

            (66)     This relates to the notice given to the claimant for her ill-health retirement.  The HSENI (first respondent) initially decided to implement the ill-health retirement on 11 April 2013.  The date was subsequently changed to 4 June 2013 following representations by the claimant.  The HSENI asserts that the reason for the inadequate notice was because the HSENI did not have a record of the claimant’s total work history within the civil service.

 

            Issue 8

 

            Alleged breach of privacy in relation to the claimant’s documents

 

            (67)     Following the claimant’s medical retirement on 4 June 2013 Pip Crook (fourth respondent) instructed Adrian Harris to arrange for the removal of the claimant’s stored information and belongings to containers for ease of collection by her.    

 

            (68)     Pip Crook (fourth respondent) asked Cyril Anderson to go through the claimant’s documents to see what should or could be released.  Mr Anderson did that and removed from the container documents belonging to HSENI (first respondent) which were documents relating to work done by the HSENI with companies in discharge of its functions.  He did not remove personal items belonging to the claimant.  In a letter to the claimant of 31 May 2013 Pip Crook explained what had been removed and what she could collect. 

 

            (69)     The claimant called to collect her personal belongings on 4 June 2013 at Ladas Drive where she met Adrian Harris.  She went through each container and was very upset that her training log and the reference booklets had been removed.  Adrian Harris explained that the training log had not been deliberately removed and if it were not in the containers he would try to locate it.  Adrian Harris asked the claimant to make a thorough search, which she refused to do, and explained that the reference books were removed as they were the property of HSENI (first respondent).  The claimant asked for a list of all papers that had been removed which Adrian Harris was unable to  provide.  The claimant was unwilling to sign a copyright letter and her items were not released.  The claimant was unwilling to take her belongings and would not return HSENI items in her possession.

 

            (70)     On 5 June 2013 Nicola Monson and Cyril Anderson, observed by a member of departmental HR at the request of departmental HR, checked the containers for the training log which was located in one of the containers. 

 

            (71)     Noel Griffin, from NIPSA, wrote to Keith Morrison CEO of HSENI (first respondent) on 13 June 2013 complaining that the claimant’s personal belongings were examined and sorted prior to the claimant’s arrival and that some personal items were missing.  He requested an investigation be held into the matter and that someone would sit down with the claimant to ascertain whether any of the property is or is not HSENI property.  Keith Morrison, on behalf of HSENI, replied on 28 June 2013 to Noel Griffin who wrote further on
28 June 2013 to Keith Morrison stating that the claimant did not accept it was done to be helpful and reiterating her belief that there was no necessity to sort out her books and that some of her notebooks were missing. 

 

            (72)     Keith Morrison replied to Noel Griffin on 18 July 2013 apologising again and reiterating that it was not his intention to offend.  He said that when the claimant arrived to pick up her documents she could see all the documents the HSENI (first respondent) had so that she could see what had been retained and what was being released.

 

            (73)     The claimant subsequently attended at Ladas Drive to collect her belongings.  She believed some training materials were missing.  Both parties agreed to search for such documents.  The HSENI (first respondent) offered to replace missing materials but this was not taken up by the claimant. 

 

            (74)     Pip Crook (fourth respondent) accepted that management has no right to search personal belongings and that the claimant should have been consulted.    

 

            Issue 9

 

            Initial withholding of claimant’s notes and documents

 

            (75)     On 4 June 2013 the HSENI (first respondent) refused to hand over notes from Warwick University as it believed there were issues of copyright.  The claimant says a number of other students were able to keep their notes from Warwick University.  She states Warwick University stated that the notes were hers.  The notes were provided to the claimant in July 2013. 

 

           

 

 

 

            Issue 10

 

            Failure or omission to redeploy the claimant to some other post

 

            (76)     The claimant alleges that when the HSENI (first respondent) was considering ill-health retirement it failed to discuss with her or offer her alternative employment within the Northern Ireland Civil Service.  Previously the claimant had worked as a workplace nurse and there was a position of a nurse, not filled on a permanent basis, within the HSENI. 

 

            (77)     The HSENI (first respondent) stated that it had no other posts within the agency.  It also stated that to transfer the claimant to a workplace nurse post would be to downgrade her and that the continued existence of the workplace nurse post was then under review and could well disappear.  There were not any other nursing vacancies elsewhere in the NICS. 

 

            (78)     Dr Crowther had previously advised that the claimant was unlikely to give regular and effective service in her current post or a similar post before pension age. 

 

            Issue 11

 

            Mrs Crook’s sending of a letter dated 31 May 2013 to the claimant

 

            (79)     As referred to above the letter set out the HSENI’s (first respondent) view, as expressed by Pip Crook (fourth respondent); that some of the materials were for personal use only and should not be used for commercial exploitation; that notes made by the claimant, as a result of attending the diploma training or HSEGB courses, could be retained; that notes made in exercise of the HSENI’s regulatory function should remain in the possession of the HSENI; that general notes on wider aspects of the assignment could be retained by the claimant and that the HSENI had recovered materials belonging to it or HSEGB or Warwick University.

 

            (80)     The letter of 31 May 2013 concluded with a statement, which was to be signed and dated by the claimant and a witness, in the following terms;

 

                                    “I, Vivienne Costley, accept that the material passed to me from HSENI, HSEGB and Warwick University is for personal use only; and I agree not to use it in any way for commercial exploitation.”

 

            (81)     The claimant concluded that this meant that she was not to use any intellectual knowledge that she had gained as an inspector.  She further asserted that another person who was medically retired the same week as she was, did not have to sign such a letter and that other ex-inspectors confirmed they did not sign such a letter.  This evidence was not contradicted by the respondents.

 

            (82)     Pip Crook (fourth respondent) told the tribunal that the requirement for the claimant to sign and date the letter of 31 May 2013 from her was drafted after she had taken legal advice.

 

            (83)     The claimant did not sign the letter, as requested by Pip Crook (fourth respondent), but she was provided with her personal documents minus those other categories of documents set out in the letter of 31 May 2013.

 

The Law

 

Unfair Dismissal

 

6.         (1)       To establish that a dismissal is not unfair an employer must establish the reason for the dismissal and that it was one of the statutory reasons that can render a dismissal not unfair.  If an employer establishes both of these requirements then whether the dismissal was fair or not depends, in all the circumstances, on whether the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee (Article 130 The Employment Rights (Northern Ireland) Order 1996).

 

            (2)       The statutory reasons permit a dismissal to be made if it

 

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

 

(b)      relates to the conduct of the employee, or

 

(c)       is that the employee was redundant, or

 

(d)      related to some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held (Article 130(1) and (2) The Employment Rights (Northern Ireland) Order 1996). 

 

            Constructive Dismissal

 

            (3)       To establish a constructive dismissal that is unfair an employee must prove that:-

 

(a)      there was a breach of his contract of employment, and

 

(b)      the breach went to the core of the contract, and

 

(c)       the breach was the reason or principle reason for his resignation, and

 

(d)      he did not delay in resigning after the breach occurred, and

 

(e)      in all the circumstances the employer acted unreasonably. 

 

 

(4)       The breach of contract can be a breach of an express term of the contract or a breach of an implied term or both.

 

(5)       Implied terms of the contract include:-

 

(a)      a breach of the duty of trust and confidence;

 

(b)      a breach of the duty of co-operation and/or support;

 

(c)       a breach of the duty promptly to address grievances; and

 

(d)      a breach of the duty to provide a suitable working environment (Harvey on Industrial Relations and Employment Law D1 [429] to [479]).

 

(6)       A breach of the implied term of trust and confidence can be by a single act of the employer or a course of conduct by the employer over a period of time. 

 

(7)       Where a course of conduct is relied upon it is not necessary that any single act itself amounts to a breach of the implied term of trust and confidence but the course of conduct, cumulatively, must amount to a breach of the implied term. 

 

(8)       Where a constructive dismissal claim arises from an alleged breach of the implied term of trust and confidence where the employee leaves in response to conduct carried on over a period of time the particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against the background of such instances it may be considered sufficient by the courts to warrant their treating the resignation as a constructive dismissal.  It may be the “last straw” which causes the employee to terminate a deteriorating relationship.

 

(9)       However, in Omilaju v Waltham Forest London Borough Council [2005] IRLR 35 the Court of Appeal held that where the alleged breach of the implied term of trust and confidence constituted a series of acts the essential ingredient of the final act was that it was an act in a series the cumulative effect of which was to amount to the breach.  If followed that although the final act may not be blameworthy or unreasonable it had to contribute something to the breach even if relatively insignificant.  As a result if the final act did not contribute or add anything to the earlier series of acts it was not necessary to examine the earlier history (Harvey on Industrial Relations and Employment Law D1 [480] and [481.01]).

 

(10)     There is no fixed time within which the employee must make up his mind.  A reasonable period is allowed.  It depends upon all the circumstances including the employee’s length of service ..., the nature of the breach, and whether the employee has protested at the change.  Mere protest will not, however, prevent an inference that the employee has waived the breach, although a clear reservation of a right might do so ... (Harvey on Industrial Relations and Employment Law D1 [524]).

 

(11)       Even where there is a breach, the employee may chose to give the employer the opportunity to remedy it.  The employee will not then be prejudiced if he delays resigning until the employer’s response is known ... (WE Cox Toner (International) Ltd v Crook [1981] IRLR 433).  (Harvey on Industrial Relations and Employment Law D1 [523.01]).

 

(12)     The courts will be reluctant to find mutual agreement to part unless the evidence is clear because the employee’s statutory rights will be excluded: ...

 

                        (Harvey on Industrial Relations and Employment Law Q paragraph [719]).

 

            (13)     MUTUAL AGREEMENT TO PART

 

                        Where the employee and employer genuinely agree to terminate the contract of employment, there will be no dismissal, and where the employee requests that he be released from his contract as soon as possible, and the employer agrees to this, the contract is terminated by agreement.  No claim for constructive dismissal will arise where the initiative to terminate the employment in these circumstances comes from the employee.  The employee will not generally be able to prove that the employer’s conduct was such that it entitled him to terminate the contract without notice where he has made the first move.  There will need to be clear evidence of voluntary agreement to terminate the contract, such as that the employee seeks to terminate the contract in order to go to another job.  (Lipton Ltd v Marlborough [1979] IRLR 179).  Otherwise the tribunals are reluctant to find that there has been a termination by agreement because by doing so, they bar the employee from bringing a claim for unfair dismissal ... (Tolley’s Employment Law Service/Unfair Dismissal 1-Q Qualification from Fair Dismissal Rights/Termination of the Contract/Termination by Agreement [U4008]).

 

Disability Discrimination

 

            (14)     A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treated the disabled person less favourably than he treats or would treat a person not having a particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person (Section 3A(5) Disability Discrimination Act 1995 as amended). 

 

            Disability Related Discrimination

 

            (15)     A person discriminates against a disabled person if, for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and he cannot show that the treatment in question is justified (Section 3A(1) Disability Discrimination Act 1995 as amended). 

 

            (16)     Treatment is justified for the purposes of Section 3A of the Disability Discrimination Act 1995 as amended if, but only if the reason for it is both material to the circumstances of the particular case and substantial (Section 3A(3) Disability Discrimination Act 1995 as amended). 

 

            Failure to Make Reasonable Adjustments

 

            (17)     A person discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person (Section 3A(2) Disability Discrimination Act 1995 as amended).

 

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

 

(a)      the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

 

(b)  the extent to which it is practicable to take the steps;

 

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

 

(d)      the extent of his financial and other resources;

 

(e)      the availability to him of financial or other assistance with respect to taking the step; and the nature of his activities and the size of his undertaking (Section 18B(1) Disability Discrimination Act 1995 as amended). 

 

Burden of Proof

 

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

 

            Victimisation

 

            (20)     (a)     An employer (“A”) discriminates against another person (“B”) if he treats B less favourably than he treats or would treat other persons, whose circumstances are the same as B’s and does so by reason that B has:-

 

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

 

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

 

(iii)      alleged that A or any other person has contravened the Disability Discrimination Act,

 

(iv)      or by reason that A believes or suspects that B has done or intends to do any of these things.

 

                        (b)     Where B is a disabled person, or a person who has had a disability, the disability shall be disregarded in comparing his circumstances with those of any other person for the purposes of the Disability Discrimination Act 1995, Section 55(1)(2) and (6).            

 

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

 

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

 

(22)     Tolley’s Employment Handbook in the 27^th edition 2013 states at paragraph 10.38:-

 

                     “Victimisation

 

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

 

(23)     A victimisation claim requires:-

 

(a)          The protected act being relied upon;

 

(b)          The correct comparator;

 

(c)          Less favourable treatment;

 

(d)          The reason for the treatment;

 

(e)          Any defence;

 

(f)           Burden of proof.

 

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

 

            The correct comparator

 

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

 

(Harvey on Industrial Relations and Employment Law L [475.01]).

 

      

            Less favourable treatment

 

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

 

(Harvey on Industrial Relations and Employment Law L [476]).

 

            The reason for the treatment

 

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

 

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

 

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

 

            (Harvey on Industrial Relations and Employment Law L [485]).

 

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

 

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

 

            Lord Hoffman added at paragraph 59:-

 

                        “…Under s2, however, the commencement of proceedings must be a reason for the treatment and in Cornelius’ case it was not.”

 

(28)       “The importance of establishing a causative link can be seen in cases such as Khan itself, where it is accepted that ‘a protected act’ has occurred and there is no dispute over the ‘less favourable treatment’ but the dispute centres on the reason for that treatment …  The key issue … will be the tribunal’s understanding of the motivation (conscious or unconscious) behind the act by the employer which is said to amount to victimisation…”

 

(Harvey on Industrial Relations and Employment Law L [488]).

 

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

 

 

(30)       The Labour Relations Agency Code of Practice states at paragraph 11:-

 

          “In certain cases, for example in cases involving alleged gross misconduct, where relationships have broken down or there are risks to an employer’s property or responsibilities to other parties consideration should be given to a brief period of suspension with full pay whilst an unhindered investigation is conducted.  Such a suspension should be imposed only after careful consideration of the necessity for this.  Employers should also consider alternative actions which would be more acceptable to the employee yet serve the same purpose as a suspension.  An alternative to suspension might be the agreeing of a temporary transfer to other duties or another workstation without loss of pay.  Any action taken, including suspension on full pay, should be reviewed frequently to ensure it is not unnecessarily protracted.  It should be made clear that any action taken is neither considered as disciplinary action nor an indication of blame or guilt.”

 

(31)The Code of Practice states at paragraphs 6, 38:-

 

              “If an employer considers an employee guilty of gross misconduct and potentially liable for summary dismissal, it is still important to establish the facts before taking any action.  A short period of suspension with full pay may be helpful or necessary, although the suspension should be imposed only after careful consideration and should be kept under review.  It should be made clear to the employee that the suspension is not a disciplinary action and does not involve any pre judgement.”

 

Application of the Law and the Findings of Facts to the Issues

 

7.         Issue 1

 

            Suspension

 

                   (1)     The claimant was suspended on 11 November 2011 and that continued until 4 June 2013.

 

                   (2)     Suspension can occur where working relationships have broken down.  This is a judgment of the employer.  This led to an investigation and the initiation of disciplinary procedures against the claimant.  However the disciplinary procedures were never completed.  The tribunal cannot form a view that the suspension was not necessary as there has never been a decision on the merits of the misconduct charges.  In the circumstances it was open to the HSENI (first respondent) to suspend the claimant as the subsequent charge is capable of amounting to a breakdown in working relationships.

 

                   (3)     The Disciplinary Policy requires the HSENI (first respondent) to ensure that the suspension does not become unnecessarily protracted and in pursuit of that to review the suspension.  Clearly the suspension was protracted.

 

                   (4)     The reason for the protracted suspension was that the claimant; lodged six grievances which were dealt with first, which is considered good practice; a date for the interview of the claimant could not be agreed because of the non-availability of the claimant’s trade union representative, or her ill-health, or a request by the claimant for information under the Data Protection Act, or annual leave.  The Investigation Report was presented on 17 July 2012 and it took the HSENI until 5 September 2012 to decide whether to proceed with disciplinary action.  The claimant was invited to a disciplinary meeting on 12 October 2012.  However no disciplinary meeting occurred and the suspension continued until the termination of the claimant’s employment on 4 June 2013.

 

                   (5)     The suspension was unnecessarily protracted.  There does not appear to have been any review of the suspension.  The HSENI (first respondent) should not have permitted the suspension to last this length of time.  In the circumstances the investigation should have been concluded earlier with the claimant being asked to provide a written statement if she was unable to meet with the investigation team.  The decision whether to move to disciplinary action should have been taken within days not almost two months later.  Similarly the disciplinary meeting should have been held and not deferred so long.  If the claimant was unable to attend she could have been asked to provide a written submission in connection with the charges.

 

                   (6)     The claimant claims the suspension was an act of disability discrimination and disability related discrimination and victimisation under the Disability Discrimination Act 1995 as amended.

 

                   (7)     It is accepted that the claimant suffers from a disability for the purposes of the Disability Discrimination Act 1995 as amended.

 

                   (8)     For the claimant’s three claims she needs to show that she has suffered less favourable treatment.  As stated above the HSENI (first respondent) could legitimately have suspended the claimant in connection with the investigation and the alleged misconduct by her and such is in keeping with the HSENI’s Disciplinary Policy.  As there has not been an evaluation of the alleged misconduct the tribunal does not have any evidence to assess whether the suspension was necessary or not.  Therefore the act of suspension itself cannot amount to less favourable treatment.

 

                   (9)     As we have found above the suspension was unnecessarily protracted.  The tribunal then must ask itself if the protracted duration of the suspension amounts to less favourable treatment.  The protracted duration of the suspension was by reason of the claimant’s grievances, ill-health, annual leave, and the non-availability of her trade union representative during the investigation process and the disciplinary process.  Whilst the tribunal is of the view that the HSENI (first respondent) should have taken a more robust approach in bringing the investigatory and disciplinary processes to a conclusion, its failure to do so was by reason of accommodations made for the benefit of the claimant and not because it was treating her less favourably.    

 

                   (10)   In addition the charges that were being investigated, as found above, are capable of amounting to a breakdown in working relationships.  However the   tribunal could not say that a person who did not have the particular disability of the claimant would not have been suspended in circumstances similar to the circumstances that the claimant was involved in on 11 November 2011.  Therefore the tribunal cannot say that the claimant suffered or would have suffered less favourable treatment.  In relation to the claimant’s claim for disability related discrimination the tribunal could not say that a person without a disability would not have been suspended had he behaved in the way the claimant is alleged to have behaved on 11 November 2011.

 

                   (11)   In the absence of less favourable treatment the claimant cannot succeed in her claims of disability discrimination and disability related discrimination. 

 

                   (12)   In relation to the claim of victimisation it also fails in the absence of less favourable treatment.  However even if there were less favourable treatment the claimant has not identified the protected act.

 

                   (13)   The claimant queried whether she was suspended by the right person.  The various policies do not clearly establish that the person suspending her did not have authority to do so. 

 

                   (14)   Accordingly the claimant’s claims that the suspension was an act of discrimination or disability related discrimination or victimisation and the Disability Discrimination Act, as amended, fail and are dismissed.

 

                  

 

                   Issue 2

 

                   Commencement of disciplinary procedure and investigation

 

                   (15)   Arising from a number of incidents that occurred on 11 November 2011 the HSENI (first respondent) began a disciplinary process on 18 November 2011 when they suspended the claimant.

 

                   (16)   The investigation was to consider if disciplinary proceedings were appropriate arising from the three incidents that occurred on 11 November 2011 (see paragraphs 5(24) above).

 

                   (17)   The investigator was unable to meet with the claimant for the reasons set out above.  Eventually an investigation report was produced on 17 July 2012 without any statement from the claimant, it not having been possible to meet with her.  Arising from the report the HSENI (first respondent) decided on 5 September 2012 to proceed with disciplinary action and scheduled a disciplinary meeting from 12 October 2012 in order that the claimant would face charges arising from the three incidents of 11 November 2011.  (See paragraph 5(30) above).

 

                   (18)   The HSENI (first respondent) was entitled to investigate the incidents of 11 November 2011 and on foot of a report to initiate disciplinary action.  The absence of a statement from the claimant does not invalidate either the investigation nor the decision to institute disciplinary action.  The reason for the absence of a statement from the claimant is set out above.

 

                   (19)   The claimant alleged that it is an act of disability related discrimination and victimisation under the Disability Discrimination Act 1995 as amended.

 

                   (20)   The claimant must show less favourable treatment as one of the ingredients for disability related discrimination and victimisation under the Disability Discrimination Act, as amended.

 

                   (21)   When an employee’s conduct is alleged to amount to misconduct an employer must be able to investigate that and initiate disciplinary action if deemed necessary.  While such a process is not welcome by an employee it cannot amount to less favourable treatment unless there is not any basis for the investigation or the disciplinary action or because it was done for an unlawfully discriminatory reason.

 

                   (22)   Clearly, on the evidence before the tribunal, the HSENI (first respondent) had a belief that the events that had occurred on 11 November 2011 amounted to misconduct whereas the claimant denied that entirely.  In those circumstances the HSENI is entitled to investigate the alleged misconduct and if there is a sufficient basis for it to move to disciplinary action.  This cannot amount to less favourable treatment per se.  In the absence of any determination of the disciplinary charge the tribunal is not in a position to conclude that the HSENI’s belief that the claimant had committed acts of misconduct was not reasonable.

 

                   (23)   If the claimant were able to establish that the reason for commencing the disciplinary action was for a reason related to her disability or by reason of victimisation then the initiation of the disciplinary process could amount to less favourable treatment.

 

                   (24)   There was not any persuasive evidence before the tribunal that the commencement of the disciplinary procedure and investigation was for a reason other than that stated by the HSENI (first respondent), ie, to investigate the alleged misconduct committed by the claimant on 11 November 2011.

 

                   (25)   In the absence of less favourable treatment the claimant cannot succeed in her claim of disability related discrimination and victimisation and accordingly these claims are dismissed.

 

                   Issue 3

 

                   Alleged failure to make reasonable adjustments (as specified in recently provided list of 20 June 2013)

 

                   (26)   The claimant returned to work on 21 March 2011 and remained there until 11 October 2011 when she was off sick returning on 11 November 2011.  She was subsequently suspended on 21 November 2011.  This part of her claim relates to that period.

 

                   (27)   The tribunal is not persuaded that the HSENI (first respondent) did not support her on her return to work.  Meetings were arranged with her to discuss her work and study in March, May, June, July and September 2011.    During these meetings the claimant raised concerns about matters pertaining to her work which the HSENI, through its officers, followed up.  In addition Nicola Monson made arrangements for a contact in Warwick University to be available to the claimant in relation to her diploma course at Easter 2011 as a number of staff members were on annual leave at that time and she explained this to the claimant.  Dr Crowther, OHS, chosen by the claimant, was contacted in March and May 2011 about the claimant’s health and what adjustments were being made for her.  Advice was also received about the claimant’s health and potential adjustments from her psychiatrist Dr Meenagh. 

 

                   (28)   All the suggestions made for reasonable adjustments by Dr Meenagh and the claimant were implemented.  She was offered operational work along with her assignments.  The rate at which assignments were to be done was decided by the claimant, following advice from her psychiatrist, Dr Meenagh, that they be done as soon as possible to get them out of the way.  Dr Meenagh’s suggestion of allowing three weeks for each assignment and working from home were accepted and implemented.  The claimant did not pursue the issue of deferral of her assignments which was raised at a meeting.

 

                   (29)   The tribunal considers that the HSENI (first respondent) was correct in investigating concerns raised by the claimant which she alleged were adversely affecting her health whether she asked them to do so or not once they were informed of those concerns by the claimant.

 

                   (30)   The claimant has not identified any other adjustment which she alleges the HSENI (first respondent) ought to have made.

 

                   (31)   If the list of 20 June 2013 is intended to suggest that the HSENI (first respondent), through its officers, did not make the adjustments quickly enough the tribunal is not persuaded that there is any merit in such a complaint.

 

                   (32)   Accordingly the claimant’s claim that the HSENI (first respondent) or any of the other respondents failed to make reasonable adjustments pursuant to the Disability Discrimination Act 1995, as amended, is dismissed.

 

                   Issue 4

 

                   Alleged failure to follow internal grievance procedures

 

               (33)   The claimant brought six grievances between 22 June 2012 and 9 August 2012 none of which was upheld. 

 

                        (34)   The HSENI (first respondent) has a grievance policy which they followed or attempted to follow.  However by appointing Adrian Harris to investigate grievances against his superiors, Dermot Breen (third respondent) and Donna Giboney (fifth respondent) the HSENI was in breach of its own policy and good practice ie appointing someone to consider a grievance against his superiors.  The HSENI, through Donna Giboney, sought to justify this for reasons of confidentiality and the unreasonableness of the number of grievances by reason of the finite number of staff within the HSENI.  It is not clear that there was not anyone senior to the people against whom the grievances were made who could have carried out the grievance and the HSENI has never actually said that, although it is implied in Donna Giboney’s letter of 15 August 2012.  However if that were the problem the HSENI could have sought the claimant’s agreement for someone outside of the HSENI to deal with the grievances which they did not do. 

 

                        (35)   In relation to grievances G/12789 and G/127928 the claimant did not meet with the investigating officer.  Grievance G/127963 could not be completed as the claimant became distressed during the meeting and left.  Grievances G/128002 and G/128003 were not proceeded with due to the issue of confidentiality and the unreasonableness of the number of grievances by reason of the finite number of staff.  It is not clear what is the rationale for grievance G/127990.

 

                        (36)   The claimant alleges that failure to follow internal grievance procedures was an act of disability discrimination, disability related discrimination and victimisation under the Disability Discrimination Act.  The only procedural failure, identified to the tribunal, was appointing Adrian Harris to deal with a grievance against staff members at a higher grade than him.  This is in contravention of the HSENI’s own grievance procedure. 

 

                        (37)   For each of those claims under the Disability Discrimination Act 1995, as amended, the claimant must show less favourable treatment.  The tribunal is satisfied that the procedural failure identified above could amount to less favourable treatment. 

 

                        (38)   For the purposes of the disability discrimination claim and the disability related discrimination claim the claimant must show that the less favourable treatment was by reason of her disability or for a reason related to her disability.  The claimant believes that her disability was the reason for the less favourable treatment.  The explanation put forward by the respondents is that set out in the letter of Donna Giboney (fifth respondent) of 15 August 2012 where she seeks to justify the appointment of Adrian Harris on grounds of confidentiality and finite number of staff by reason of the unreasonable number of grievances that the claimant has made. 

 

                        (39)   The tribunal, on balance, accepts the HSENI’s (first respondent) explanation as it was not seriously challenged by the claimant in cross-examination.  It also seems implausible to the tribunal that the HSENI would appoint Adrian Harris to investigate grievances against his superiors because the claimant had a disability or for a reason relating to her disability. 

 

                        (40)   The tribunal is not satisfied that the claimant has shown that the failure in the grievance procedure was because the claimant had a disability or for a reason related to her disability and these claims are dismissed.

 

                        (41)   In relation to the victimisation claim the claimant has not identified what the protected act was and it seems implausible that if the HSENI (first respondent) was minded to victimise the claimant for doing a protected act that the form of that victimisation was to appoint Adrian Harris to consider a grievance against his superiors. 

 

                     Issue 5

 

                     Alleged failure to allow a claimant to complete one outstanding assignment in relation to her University course

 

                        (42)   This relates to the lack of access to the intranet of HSENI/GB until February 2012 following her suspension on 21 November 2011.

 

                        (43)   The HSENI (first respondent) had made available to the claimant the contents of her computer H drive after her suspension.  It seems not unreasonable that access would be prohibited to someone under suspension.  That apparently did not assist the claimant to obtain the information she needed for the assignment which was on the HSENI/GB intranet to which the claimant did not have access.

 

                        (44)   The claimant did not make any representations to the HSENI (first respondent) about this need.  It was Donna Giboney (fifth respondent) who discovered this from Warwick University.  Once she became aware of it she provided the claimant with the user name and password to the intranet.  The assignment had still not been completed by 30 June 2012.

 

                        (45)   The claimant alleges her lack of access to information is an act of discrimination or an act of disability related discrimination or victimisation under the Disability Discrimination Act 1995 as amended.

 

                        (46)   For each of these claims the claimant needs to show less favourable treatment.

 

                        (47)   Lack of access to the intranet for an employee who has been suspended is not less favourable treatment per se.  The HSENI (first respondent) delayed the implementation of the de-activation to enable the claimant to download her materials on to a data stick.  Later when the HSENI discovered, via Donna Giboney (fifth respondent), that the claimant needed access to the intranet this was made available to her immediately.

 

                        (48)   Lack of access to the HSENI’s intranet, in the circumstances of this claim, cannot amount to less favourable treatment as there was not any evidence before the tribunal that others under suspension had not been similarly deprived of access to the intranet of the HSENI or would not be so deprived.

 

                        (49)   It is therefore unnecessary to consider the reason for the disability discrimination or the disability related discrimination as there is no less favourable treatment and that is a pre-requisite for these claims which are therefore dismissed.

 

                        (50)   In relation to victimisation under the Disability Discrimination Act 1995, as amended, it is unnecessary to establish the protected act as there has not been any less favourable treatment and this claim must also fail and is also dismissed.

 

Issue 6

 

Termination of employment

 

(51)     The claimant’s employment ended on 4 June 2013, by apparent agreement, by reason of medical retirement.

 

(52)     In order that the termination amounted to an unfair dismissal the claimant has to show that the HSENI (first respondent) dismissed her or that the HSENI had committed a repudiatory breach of the contract of employment and the claimant  resigned in response to that breach. 

 

(53)     The HSENI (first respondent) did not dismiss the claimant nor does the claimant allege that.  To succeed in a claim for unfair dismissal she must argue that the apparent consent to medical retirement was not genuine and that she was forced to agree to it or did so under duress.

 

(54)     The tribunal is satisfied that the medical retirement was genuine.  In so concluding the tribunal had regard to the following matters:-

 

 

                        (a)     The initiative for ill-health retirement came from the claimant’s trade union representative, albeit, without the claimant’s authority. 

 

                        (b)     From the HSENI’s (first respondent) side the question of medical ill-health retirement was raised by Dr Crowther, from OHS, who is not an employee of the HSENI and indeed was the claimant’s chosen OHS doctor following her request to be referred back to OHS.  The background was where Dr Crowther on 13 September 2012 had ruled out ill-health retirement.

 

                        (c)     Although Pip Crook (fourth respondent), in her letter of 26 February 2013, had raised the ongoing disciplinary process and inefficiency action neither seemed to have figured in subsequent discussions.  The disciplinary process had been ongoing since October 2012 and the HSENI (first respondent) did not progress the possibility of inefficiency action.  In raising these matters the HSENI, through Pip Crook, was identifying risks to the claimant.  It did not amount to a choice to accept medical retirement or be dismissed.

 

(d)     A meeting, under the auspice of the LRA, discussed ill-health retirement with the claimant on 20 February 2013.  Nothing was agreed in relation to ill-health retirement but on the evidence before the tribunal the claimant did not state at that meeting that she was opposed to ill-health retirement.

 

(e)     Pip Crook (fourth respondent) in her letter of 26 February 2013 invited the claimant to make any representation she wished in writing to the departmental HR about the recommendation that she be considered for ill-health retirement as the department intended to make a decision on this matter.  The claimant did not make any representation.

 

(f)      Following formal notification from Pip Crook by letter of 13 March 2013 that she was to be retired on ill-health grounds the claimant, on 14 March 2013, contacted Adrian Harris to inform the respondents that the date of ill-health retirement on 11 April 2013 was not acceptable to her as it did not give her sufficient notice.  She did not challenge ill-health retirement being considered for her.

 

(g)     The claimant engaged with the HSENI through Pip Crook and Adrian Harris and negotiated, successfully, greater notice for her before the ill-health retirement would become effective.  During their negotiation the claimant did not argue against ill-health retirement being considered for her.

 

(h)     The claimant did not appeal the decision to retire her on grounds of ill-health.

 

(55)     For constructive dismissal the claimant must either have elected to resign in response to the HSENI’s (first respondent) conduct which amounted to a repudiatory breach of the contract of employment or if it purported to be by mutual consent that there was not in fact a genuine mutual consent to terminate.  The claimant alleges that she was forced to accept the medical retirement.  But she did not resign rather she negotiated the date of her retirement and had it extended to her advantage.  The claimant did not resign so the normal constructive dismissal circumstances of resignation by an employee following a repudiatory breach by the employer did not apply to her.  For the reasons set out at paragraph 7(54) above, the tribunal is persuaded that the claimant’s consent to medical retirement was genuine.

 

(56)     Though the tribunal has identified a number of failures by the respondents in relation to the suspension of the claimant and the handling of some of her grievances these do not amount to a repudiatory breach that went to the core of the contract and therefore cannot amount to a constructive dismissal.

 

(57)     Accordingly the claimant’s claim for unfair dismissal simpliciter or for unfair constructive dismissal is dismissed.

 

(58)     The claimant also argues that the dismissal is an act of disability discrimination or disability related discrimination.

 

(59)     As the termination was by agreement that cannot be less favourable treatment which is a necessary ingredient for her claim of disability discrimination or disability related discrimination.

 

(60)     Accordingly the claims of disability discrimination and disability related discrimination are dismissed.

 

            Issue 7

 

            Initial refusal to pay what the claimant considered to be inadequate notice pay

 

            (61)     The notice period for implementation of the agreed ill-health retirement was the subject of discussion and negotiation.  The initial notice period proposed by the HSENI (first respondent) was 11 April 2013.  Following representations by the claimant to the HSENI this was changed to 14 May 2013 and then to 4 June 2013, which last date the claimant accepted.

 

            (62)     The HSENI (first respondent) stated that in calculating a notice period it had been unaware of the claimant’s full work history within the civil service before moving to the HSENI.  The HSENI suggests that ignorance on its part explained the discrepancy in the initial calculation of notice to which the claimant was entitled.  That explanation was never challenged by the claimant.

 

            (63)     The claimant contends that the initial calculation of notice to which she was entitled is an act of victimisation pursuant to the Disability Discrimination Act 1995 as amended. 

 

            (64)     To establish victimisation the claimant must show that she suffered less favourable treatment.  That she has not done.  The notice period given was eventually agreed by the claimant following negotiation and until such time as that was agreed and ill- health retirement implemented the claimant was in receipt of full pay.  It is not necessary therefore to determine what the protected act was. 

 

            (65)     Accordingly the claimant’s claim for victimisation pursuant to the Disability Discrimination Act 1995 as amended is dismissed.

 

            Issue 8

 

            Alleged breach of privacy in relation to the claimant’s documents

 

            (66)     The HSENI (first respondent) through Pip Crooke (fourth respondent), accepts that the HSENI should have consulted with the claimant prior to going through her personal belongings.

 

            (67)     Clearly if an employee’s employment is terminated, having been suspended up to termination there will be a need to deal with the employee’s personal belongings.  The HSENI (first respondent) has accepted that it did not do that correctly initially by reason of its failure to consult with the claimant.  Further examination of the claimant’s belongings was done under the supervision of the departmental HR in accordance with its own procedures.

 

            (68)     The HSENI (first respondent); sorted out the documents in the claimant’s possession; retained what was its property; put all of the claimant’s documents into containers; showed to the claimant what it had retained and what it had given to her; and offered to replace some materials that the claimant stated were missing.  This was done so that the claimant’s belongings could be moved to Ladas Drive so that the claimant could collect them at a more convenient location.    

 

            (69)     The claimant has alleged that the alleged breach of privacy amounts to an act of discrimination in relation to her disability and an act of victimisation under the Disability Discrimination Act 1995 as amended.

 

            (70)     For both claims the claimant must show less favourable treatment.  The only treatment adverse to the claimant was the initial perusal of her belongings without having consulted with her.  The HSENI (first respondent) has explained what belongings of the claimant it says were there and what it did with all the documents and belongings. 

 

            (71)     The claimant has not established an actual comparator who in similar circumstances as those of the claimant was treated more favourably ie was consulted about the removal of belongings.  Given that the claimant was suspended and not at work from November 2011 to 4 June 2013 it is not clear that a hypothetical comparator, in similar circumstances, would have been treated in a different way to the claimant on this matter.  However even if the tribunal were to conclude that the lack of consultation amounted to less favourable treatment the claimant must show, for the purposes of a disability related claim that the reason for the less favourable treatment related to her disability.  There was not any persuasive evidence before the tribunal that would lead it to conclude that the lack of consultation was done for a reason related to the claimant’s disability.

 

            (72)     Similarly there was not any persuasive evidence before the tribunal to establish that the less favourable treatment was because the claimant had done a protected act, which itself had not been identified.  Accordingly the claim for victimisation under the Disability Discrimination Act 1995 as amended is also dismissed. 

 

            Issue 9

 

            Initial withholding of the claimant’s notes and documents

 

            (73)     The HSENI (first respondent) on 4 June 2013 refused to give to the claimant her notes but later gave them to her in July 2013. 

 

            (74)     The claimant claims this amounts to victimisation under the Disability Discrimination Act 1995 as amended.  The claimant has to show that she was less favourably treated by reason of having done a protected act.

 

            (75)     The less favourable treatment, at its height, is not receiving the notes for about six weeks as they were ultimately provided to her.  The claimant asserts that other students were able to get their notes and documents which was not challenged.  Therefore the initial withholding of the notes and documents could amount to less favourable treatment.

 

            (76)     The claimant has to show that the less favourable treatment was suffered by reason of having done a protected act.  The claimant has not identified what the protected act was.  There was not any evidence before the tribunal that the reason for the initial withholding of the claimant’s notes and documents was for any reason other than stated by the respondents.  Accordingly the tribunal does not accept the claimant’s contention that it was by reason that she had done a protected act.  Accordingly the claimant’s claim for victimisation under the Disability Discrimination Act, as amended, is dismissed.

 

            Issue 10

 

            Failure or omission to redeploy the claimant to some other post

 

            (77)     The factual evidence before the tribunal was that there was not any other permanent post as a workplace health nurse to which the claimant could be redeployed either within the HSENI (first respondent) or the civil service.

 

            (78)     But as the claimant’s employment terminated by agreement when she accepted ill-health retirement there is not any question of redeploying her.

 

            (79)     Accordingly her claim that failure to redeploy her to some other post as a reasonable adjustment is misconceived and therefore is dismissed.

 

            Issue 11

 

            Mrs Crook’s sending of a letter dated 31 May 2013 to the claimant

 

            (80)     The claimant asserts that the requirement that she should sign the letter of 29 May 2013 was an act of victimisation under the Disability Discrimination Act 1995, as amended.  As the claimant did not sign the letter the alleged victimisation could only be asking her to sign the letter.

 

            (81)     In order that the claimant succeed in her claim of victimisation she has to show she was less favourably treated than others in similar circumstances.  The claimant refers to others, presumably within the HSENI (first respondent) including one person who was medically retired, who were not required to sign such a document.  However the tribunal is unable to say if they are proper comparators because the tribunal was not told if issues of crown copyright or university materials connected with a university course were applicable to the comparators.

 

            (82)     But even if the individuals mentioned were proper comparators it is not clear how a request to sign a document, in the terms set out by Pip Crook (fourth respondent), which the claimant refused to sign and yet was provided with the documents the HSENI (first respondent) was going to provide her with if she had signed, could amount to less favourable treatment.

 

            (83)     Again the claimant has not identified the protected act for which she was allegedly victimised.

 

            (84)     Accordingly the tribunal is not persuaded that the claimant has established victimisation under the Disability Discrimination Act 1995 as amended and this claim is also dismissed.

 

                        Witness Statements of Rosemary Fennel and Dermot Breen

 

            (85)     The tribunal had the witness statements of Rosemary Fennel and Dermot Breen (third respondent) and had read both of them before the tribunal heard any evidence.  Neither attended to prove their witness statements nor to be cross-examined.  In these circumstances the tribunal did not attach any weight to the witness statement of Rosemary Fennel.  In relation to the witness statement of Dermot Breen the tribunal merely used it to check factual matters where the evidence given by the other parties did not address the issue of fact.

 

            (86)     The claimant’s claims are dismissed in their entirety.

 

 

 

 

 

Employment Judge:      

 

 

Dates and place of hearing:        4, 5, 8-10 and 22 December 2014, 2-6 February 2015, 19-20 March 2015, 16 April 2015, 9 June 2015 and

3 July 2015, Belfast.          

 

 

Date decision recorded in register and issued to parties: