Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS: 448/16

496/16

 

 

 

CLAIMANT: Robert Fields

 

 

RESPONDENT: Belfast City Council

 

 

 

DECISION

The unanimous decision of the tribunal is that the claims of unfair dismissal and of unlawful disability discrimination are misconceived and are dismissed.

 

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mr R Hanna

Mrs E Gilmartin

 

Appearances:

The claimant appeared in person and was not represented.

The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Belfast City Council Legal Office.

 

Background

 

1. The claimant had been employed as a recycling operative in the Waste Management Division of the respondent Council from 30 March 2009.

 

2. A threat purporting to come from Loyalist paramilitaries was received in an office of the respondent in November 2013. That threat named the claimant and described him as a ' fat fenian bastard'.

 

3. The claimant and the respondent discussed redeployment of the claimant on several occasions. Those discussions were not successful.

 

4. The claimant had a significant record of sick absence both before and after the threat.

 

5. The claimant was eventually dismissed on the ground of poor attendance on 21 November 2015.

 

6. The claimant lodged a claim ( Case Reference No: 21/15 FET) on 10 April 2015. He alleged that the respondent had unlawfully discriminated against him on the ground of his religion because he had not been redeployed following the threat which had purported to be from Loyalist paramilitaries. The claimant withdrew that claim approximately six months later and the claim was dismissed on 23 October 2015.

 

7. The claimant then lodged two further industrial tribunal claims arising out of the claimant's dismissal and out of attempts before that dismissal to redeploy the claimant. In the first claim ( Case Reference No: 448/16) which had been lodged on 4 February 2016, the claimant alleged unfair dismissal. In the second claim ( Case Reference No: 496/16) which had been lodged on 19 February 2016, the claimant alleged disability discrimination.

 

8. These two claims alleging unfair dismissal and disability discrimination essentially resolve to claims that:-

 

"(i) the claimant had been disabled at the relevant times for the purposes of the Disability Discrimination Act 1995;

 

(ii) the respondent had failed to properly offer redeployment of the claimant as a reasonable adjustment under the 1995 Act; and

 

(iii) the claimant had been unfairly dismissed for the purposes of the 1995 Act and the Employment Rights (Northern Ireland) Order 1996 for poor attendance on 21 November 2015."

 

The hearing

 

9. This case had been subject to several Case Management Discussions and the witness statement procedure had been directed. Each witness, who gave evidence in accordance with that procedure, swore or affirmed to tell the truth, adopted their witness statement as their entire evidence-in-chief and moved immediately to cross-examination and then brief re-examination.

 

10. The claimant gave evidence on his own behalf and called two witnesses; they were Mr Noel Crothers, a former colleague, and Mr Martin Power, a former trade union representative. Those two individuals attended the tribunal on foot of Witness Attendance Orders which had been sought by the claimant. Mr Crothers provided a witness statement in accordance with the witness statement procedure. Mr Power did not, and gave oral evidence-in-chief.

 

11. The respondent called:-

 

(i) Mr Tim Walker, Head of Waste Management Services;

 

(ii) Ms Andrea Anderson, of the HR Department;

 

(iii) Mr Kieran Geddis, Waste Management Department; and

 

(iv) Ms Catherine Christy, of the HR Department

 

12. The respondent also provided a witness statement from Mr Alistair Joynes who had heard the claimant's appeal against his dismissal. The claim had, for some reason and apparently with the agreement of the parties, been first listed for seven days, and then for six days, including one full reading day. The witnesses, identified above, concluded their evidence shortly after lunch on the first hearing day. Mr Joynes was not available at that point. The claimant confirmed that he had no questions to ask Mr Joynes by way of cross-examination. He accepted that Mr Joynes had heard his appeal against dismissal and that he had dismissed that appeal for the reasons set out in his witness statement. The tribunal therefore accepted the witness statement as a non-sworn statement and accepted that the procedure and the conclusions set out therein were not in contention. The tribunal proceeded to hear final submissions from both parties in the afternoon of the first hearing day.

 

Relevant law

 

Disability Discrimination Act 1995

 

13. Reasonable adjustments duty

 

Section 4A of the Act provides:-

 

"(1) Where -

 

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

 

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

 

14. Section 17A(1) of the Act provides that where a claimant proves facts from which the tribunal could, apart from that sub-section, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act. The EAT in Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 suggested that in a reasonable adjustments case, the burden of proof will shift to the respondent employer if an adjustment could reasonably have been made and it would then be up to the employer to show why it had not been made.

 

15. The Employment Appeal Tribunal in the case of Project Management Institute v Latif [2007] IRLR 579, when dealing with a reasonable adjustment case concluded that:-

 

"The paragraph in the DRC's Code is correct. The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably have been inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing substantial disadvantage envisages the duty but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made. That is not to say that in every case the claimant would have to provide the detailed adjustment that would need to be made before the burden would shift. It would, however, be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could be reasonably be achieved or not."

 

16. The Code of Practice issued by the Equality Commission provides at Paragraph 5.8 that the duty to make reasonable adjustment applies to contractual arrangements and working conditions. Paragraph 5.11 states that substantial disadvantages are those which are not minor or trivial.

 

Burden of proof in relation to disability discrimination

 

17. The statutory changes, introduced to give effect to EC Council Directive 97/80 and Council Directive 2000/78/AC, were analysed by the GB Court of Appeal in the case of Igen  v Wong [2005] EWCA 142 and guidance for tribunals was set out in a series of 13 numbered paragraphs in that decision. The Northern Ireland Court of Appeal in McDonagh and Others  v Royal Hotel [2007] NICA 3, confirmed that that guidance can be applied to all forms of discrimination and stated:-

 

"For the purposes of the present case the first question that the judge should have articulated was, 'have the plaintiffs proved on the balance of probabilities, facts from which I could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against them?'"

 

Those guidelines were revisited and affirmed by the I Court of Appeal in the case of Madarassy  v Nomura International Plc [2007] EWCA CIB 33 on 26 January 2007. At Paragraph 12 in that decision, the court stated:-

 

"I do not underestimate the significance of the burden of proof in discrimination cases. There is probably no other area of civil law in which the burden of proof plays a larger part than in discrimination cases. Arguments on the burden of proof surface in almost every case. The factual content of the cases does not simply involve testing the credibility of witnesses and contested issues of fact. Most cases turn on the accumulation of multiple findings of primary fact, on which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts. It is vital that, as far as possible, the law on the burden of proof applied by the fact-finding bodies is clear and certain. The guidance in Igen v Wong meets these criteria. It does not need to be amended to make it work better."

 

The court went on to say at Paragraph 54 that:-

 

"I am unable to agree with Mr Allen's contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing the facts of the difference in status and the difference in the treatment of her."

 

At Paragraph 56, the court continued:-

 

"The court in Igen  v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent "could have" committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which the tribunal 'could conclude' that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination."

 

At Paragraph 57, the court continued:-

 

"'Could conclude' in Section 63a(2) must mean that 'a reasonable tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the claimant in support of the allegation of sex discrimination such as evidence of the difference of status, a difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint."

 

Unfair dismissal

18. Under the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed. Article 130 of that Order provides, firstly, that it for the employer to show the reason, or if more than one, the principal reason for the dismissal and that it is a reason falling within Article 130(2) or some other substantial reason of a kind such as to justify the dismissal of that employee. Article 130(2) provides that a reason falls within that paragraph if it either relates to the capability of the employee for performing work of a kind for which he was employed to do or relates to the conduct of the employee.

 

19. Article 130(4) provides that:-

 

"Where the employer has fulfilled the requirements of Paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

 

(a) depends on whether, in the circumstances, (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

 

(b) shall be determined in accordance with equity and the substantial merits of the case."

 

Relevant findings of fact

 

20. The claimant started work for the respondent on 30 March 2009. He was employed as a recycling operative within Waste Management Services. At all relevant times he had been based at a civic amenity site in Springfield Avenue.

 

21. The claimant alleged that his effective date of termination had been 20 November 2015. The respondent contended that the effective date of termination had been one day later on 21 November 2015. To the extent that it matters, and it does not, the tribunal concludes that the effective date of termination was the latter date.

 

22. The respondent operated four main recycling centres in Belfast. Alexandra Park Avenue catered for the north of the city. Ormeau catered for the south of the city. Palmerston Road catered for the east of the city and Blackstaff Way catered for the west of the city. It also ran three smaller civic amenities sites in Agnes Street, Cregagh and Springfield Avenue. The claimant had been employed at the latter civic amenity site.

 

23. In the context of the Flag Dispute, a tricolour had been placed by persons unknown on the roof of the Springfield Avenue civic amenity site in June 2013. When the tricolour had been taken down by or on behalf of the respondent, it had simply been put back up. The contractor engaged by the respondent to remove the flag felt that it would be unsafe for it to continue to remove the flag. It remained on the roof of the site for a considerable period. Following the ' engagement of the local community', the tricolour was eventually removed on 4 February 2016 and has not reappeared.

 

24. In or around October 2013 an envelope containing a sympathy card and a bullet was received at the Cecil Ward Building in Belfast. It had been addressed to the claimant. It referred to the claimant as a ' fat fenian bastard' and purported to come from the Orange Volunteers.

 

25. The claimant's attendance record had been poor. His absence details over his entire career were as follows:-

 

" 2009 - 20 days - one occurrence

 

2010 - 24 days - three occurrences

 

2011 - 30 days - one occurrence

 

2012 - 31 days - three occurrences

 

2013 - 50.5 days - three occurrences

 

2014 - 130 days - four occurrences

 

2015 - 81 days - one occurrence"

 

That comprised a total of 366.5 working days over 16 separate occurrences during the six years of the claimant's employment. Given that that total refers to working days and not to calendar days, it is clear that the claimant's absence record had been significant, both before and after the threat.

 

26. The claimant had received a Final Warning in relation to sick absence on 17 May 2013 before the threat had been received.

 

27. In the tribunal hearing, the claimant alleged that he had been disabled for the purposes of the Disability Discrimination Act 1995. He alleged that he had suffered from a range of physical ailments, including COPD, asthma, hypertension, gout, etc and also that he had suffered from a mental disability. When he was asked to explain that mental disability, he stated that it was because his life had been threatened. When further asked to clarify that mental disability, he stated that it related to the manner in which he had coped with that threat and the difficulties he had faced.

 

28. The crux of the claimant's case, both under the heading of disability discrimination and under the heading of unfair dismissal, was that the respondent had failed to put in place a reasonable adjustment or adjustments to cope with his ' disability' and that, as a result of that failure, he had been dismissed from his employment. In that context, it is clear that the only disability that the claimant was claiming should have been taken into account by the respondent Council was his alleged mental disability. The claim that he should have been moved to other locations would have nothing to do with any of his physical ailments. It had only been relevant to the threat received by the claimant and to the claimant's reaction to that threat.

 

29. Although the claimant had been assisted for a period by the Ulster Law Clinic, his case in relation to both disability discrimination and unfair dismissal was confused and incoherent. He repeatedly maintained that the respondent could have found him another post. He said he would have worked in Falls Park, in the City Cemetery, in Ormeau or in the City Centre. There was no evidence of any vacancies in those locations. In cross-examination, the claimant stated repeatedly that he felt the respondent should have moved him to a location where he ' felt safe'. He felt that the choice of location had been up to him. It was ' my life that was threatened'.

 

The claimant's approach to this matter is entirely incorrect. The test of whether a reasonable adjustment had been put in place for the purposes of the 1995 Act and the test of whether a dismissal had been fair or unfair for the purposes of the 1996 Order are objective rather than subjective tests. These tests are not to be determined simply by the claimant's own wishes. That is particularly the case where the claimant's own wishes to do not stand up to any scrutiny and appear illogical at best.

 

30. After receipt of the threat, the claimant was immediately offered a temporary redeployment to the same job role at a different site. That offer was made on both 2 and 3 October 2013. On 3 October 2013, the offer had been made in the context of a pre-arranged sickness absence review meeting. The claimant had been represented by a trade union representative, Mr O'Doherty. at that meeting. That representative complained that the claimant's sick absence had been caused by stress in his working environment and by social media postings which had led him to lodge a grievance. However he argued that a move to another site would be more stressful for the claimant because he had a support network in Springfield Avenue. The claimant refused those offers and stated that he wished to remain at Springfield Avenue.

 

31. A further sickness absence review meeting was held on 29 October 2013. The claimant was again accompanied by the same trade union representative, Mr O Doherty. Redeployment to Blackstaff Way recycling centre was offered. The claimant declined and stated that he would rather go back to Springfield Avenue. Blackstaff Way is within West Belfast and is situated behind Curleys Supermarket. It is approached off Kennedy Way. Given that the respondent was faced with a Catholic worker who stated that he was under threat from loyalist paramilitaries, the offer of a move to another location within West Belfast appears to have been an entirely appropriate step for an employer.

 

32. The claimant's trade union representative, at a later date, Mr Power, who had been called to give evidence on his behalf, had stated in cross-examination that he would have accepted such an offer if he had been in similar circumstances. In the course of the tribunal hearing the claimant stated, in cross-examination, that he had refused Blackstaff Way because Council workers had been shot at the Kennedy Way Cleansing Depot about a mile away. That incident in fact had occurred some 25 years previously. The claimant did not mention this incident in Kennedy Way as his reason for turning down Blackstaff Way, on either 3 October 2013 or 29 October 2013.

 

33. A further absence meeting was held on 22 November 2013. It was described as a ' Final Hearing Meeting'. The claimant was not dismissed at that point and was given a further opportunity to meet the appropriate attendance standards. At that point, the claimant had accumulated a total of 112.5 days of sickness absence on eight separate occasions during the previous three years.

 

34. The claimant was again represented by Mr O'Doherty, the trade union representative, during that meeting. He was advised that the PSNI regarded the threat the claimant had received as a ' low level' threat and that they advised there had been no paramilitary activity behind it. The claimant and his trade union representative alleged that the threat had been received because the claimant had raised a grievance against other members of staff. That grievance related to comments on a social media site about Springfield Avenue.

 

35. On 30 April 2014 a letter was received by the respondent from the claimant. In that letter he stated that he had been treated badly by senior members of staff regarding his sick absence. He complained about the threat he had received and about the flag issue. He asked to be transferred out of Waste Management Services.

 

36. On 6 May 2014 the claimant met Dr Selwyn Black as part of the counselling services operated by the respondent. Despite what the claimant had said in his letter, Dr Black stated that:-

 

"He reports that he was happy working at Springfield Avenue. He reports that he enjoys the nature of his work."

 

37. On 12 May 2014 the respondent wrote to the claimant stating that he had already been offered temporary redeployment on several occasions. Those offers had been refused by the claimant. It referred to Dr Black's report and stated that, should his wishes change, he should contact the respondent.

 

38. A further final sick absence hearing was heard on 2 September 2014. The claimant's sick absence was discussed, together with the offers of redeployment. In a letter of 23 September summarising the meeting, Mr Walker stated:-

 

"As discussed at the final hearing on 2 ^nd and 16 ^th of September, I believe that redeployment from the Springfield Road is in your best interest, given your perceived work-related stressors relating to the 'flag issue'. You were again offered the opportunity to move to Blackstaff, but you have declined to take this opportunity and have advised us that if you could not redeployed outside waste management, you were happy to continue working at Springfield. You have been offered the opportunity to move from Springfield Road on a number of occasions. The panel, however, accepts that it is your decision not to move from Springfield Road to Blackstaff, where there have been no 'flag issues'."

 

Mr Walker went onto state:-

 

"After examining the possibility of a move to another location with waste management, I can advise that there are no other possibilities at present, other than Blackstaff. Please note that should you change your mind in the next few months, we will facilitate your request to move to this site."

 

39. The claimant was given a further warning in relation to his sick absence and was told that his attendance would be monitored for a further period of three months.

 

40. The claimant went on sick absence, citing stress, from 15 October 2014. Mr Geddis met the claimant on 4 November 2014 some six weeks after the latest ' final' meeting. The claimant stated that he was stressed because of the flag situation at Springfield Avenue. The claimant was reminded that the Springfield Avenue site was the only site with a flag flying and that he had been offered a transfer to Blackstaff Way and that he had refused that transfer.

 

41. The claimant was examined by Dr Glasgow of the respondent's Occupational Health Department on 4 November 2014. Dr Glasgow stated that redeployment had been addressed by the respondent but that the claimant had been unhappy with the offer. Dr Glasgow encouraged him to consider redeployment. He stated that rehabilitation by way of redeployment, as offered already by the respondent, would be advantageous to the claimant.

 

42. A meeting to discuss redeployment options was held on 11 December 2015. It was conducted by Mr Geddis. The claimant attended, assisted by Mr Power, who was acting as his trade union representative. Scale 4 posts were discussed. He was advised that a particular post required either five GCSEs or a computer-based skills check. He stated that:-

 

"I wouldn't know how to do that."

 

The claimant was again asked whether he was refusing to redeploy to Blackstaff Way. The claimant at that point stated that the reason he refused Blackstaff Way was that there was ' a fellow in a Loyalist estate next to mine working up there'. That is an entirely different reason from the reason advanced by the claimant in the course of the present tribunal proceedings, ie that he felt unsafe because there had been a shooting in Kennedy Way Cleansing Depot some 25 years ago. It is also an entirely different reason from that advanced by the claimant on either 3 October 2013 or 29 October 2013.

 

43. The claimant was also offered a pool post which would have included working in Agnes Street. The claimant refused. In the course of this discussion, Mr Power acknowledged that the respondent had been ' extremely patient'. The claimant stated:-

 

"Take the flag down at Springfield and I'll go back to work."

 

He was again reminded that he had been offered a post in Blackstaff Way where there was no flag.

 

44. The claimant was given details of the job descriptions that were at that point available within the respondent organisation.

 

45. Yet another meeting to discuss redeployment opportunities was held on 22 December 2014. Again it was conducted by Mr Geddis. The claimant attended and was again represented by Mr Power. Two vacancies were then available. One was as a cleaner which would have involved a drop in wages. The claimant was not interested. The other redeployment opportunity was a cleaner/labourer post based in City Hall. At that point the claimant was given the impression that the post was based entirely in City Hall and that it did not involve any outside work. On checking further details it transpired that the post involved ad hoc placements in other locations. That was clarified at another redeployment meeting on 16 January 2015. The claimant refused to accept that redeployment because it would involve those infrequent ad hoc placements in locations such as Duncrue, Adelaide Exchange and Agnes Street.

 

46. At another redeployment meeting on 22 January 2015, the claimant attended and was unrepresented. He stressed that he was unwilling to accept the City Hall cleaner/labourer post.

 

47. The claimant returned to Springfield Avenue from sick leave on 25 January 2015 and continued to work at that location. He then went on absent on sick leave again on 29 May 2015. Three further sick absence reviews took place on 4 June 2015, 1 July 2015 and 29 September 2015.

 

48. The tribunal notes, in particular, that on 6 February 2015 the respondent wrote to the claimant in relation to the City Hall post. It suggested again that he should consider redeployment to the City Hall. The letter stated that he would not be required to work at locations other than City Hall until clarification had been received from the PSNI in respect of the threat assessment at those other sites. Despite that further clear offer of redeployment, the claimant refused to allow the PSNI to release their risk assessment to the respondent.

 

49. A final ' final' sickness absence hearing was heard on 9 October 2015. The claimant's lengthy history of sick absences was discussed again. The offers of redeployment were also discussed again.

 

50. The claimant was advised by letter dated 12 October 2015 that he was being dismissed on notice and that his dismissal would take effect on 21 November 2015. He was advised of his right to appeal.

 

51. The appeal was held by a Joint Appeals Board comprising Mr Alistair Joynes who acted as Chair, Mr George Wright, Head of Facilities Management, and Mr Martin O'Rourke, of SIPTU.

 

52. The Joint Appeals Board considered the history of sick absences, as set out above, and the history of the case. It concluded that the claimant had breached the Council's sick absence triggers in every year since he commenced employment and that he had accumulated 366.5 days absence during the six years of employment. It stated that he had been the subject of several Stage 4 final absence hearings. The Joint Appeals Board concluded that the Council made reasonable efforts to provide the claimant with alternative working arrangements and that all those offers of redeployment had been rejected by the claimant. The appeal was dismissed.

 

Decision

 

Abuse of Process

 

53. The respondent argued that the two claims currently before the tribunal ( Case Reference Nos: 448/16 and 496/16) were an abuse of process and that they should be struck-out.

 

54. The respondent argued that the Rule set out in Henderson v Henderson [1843] 3 HARE 100 was applicable. That rule applies in employment tribunals in the same way and to the same extent as it does in other civil courts and tribunals. It provides that a claimant may be barred from raising a different type of claim from that which has already been decided, if the subject-matter of the new claim is related to the original proceedings and is one which the claimant could have brought forward at the original hearing. It promotes finality in litigation and seeks to prevent respondents and the tribunals being troubled with successive actions.

 

55. In Johnson v Gore Wood [2002] 2 AC 1, the Court of Appeal determined that in applying this rule the crucial question is whether; ' in all the circumstances', a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before'.

 

56. The claimant in the present claims had previous brought a claim ( Case Reference No: 21/15 FET) on 10 April 2015 alleging discrimination on the grounds of religious belief. That claim was withdrawn and dismissed on 23 October 2015. That claim, and its withdrawal, preceded the dismissal of the claimant from his employment on 21 November 2015. It referred solely to alleged discrimination up to 10 April 2015 in relation to the claimant's confused and inconsistent efforts to seek redeployment. It could not refer to matters after 10 April 2105 and, in particular, to the claimant's dismissal on 21 November 2015.

 

57. This is a matter which might have been better dealt with as a pre-hearing review which might have served to narrow the issues properly before this tribunal. It raised a question which was severable from a trial of the merits, was a potential ' knockout' blow for at least part of the current claims, and did not require much evidence or argument.

 

58. The tribunal's conclusions is that part of the second of the two current claims, ie  Case Reference No: 496/16, may well fall to be struck-out under the rule in Henderson v Henderson. That part would be the part of the claim which raised claims of discrimination in relation to matters occurring before 10 April 2015.

 

59. However, the tribunal concludes that the claims before it are so manifestly hopeless that it need not trouble itself with this rule and its application to different parts of the claim in all the circumstances of this case.

 

Disability

 

60. It is for the claimant to bring forward evidence of his alleged disability for the purposes of the 1995 Act. No medical witness was called by the claimant on his behalf. He sought to rely on his extensive GP notes and records which covered a range of physical symptoms from COPD to hypertension and which also referred, at various points, to stress, anxiety and depression. In the course of his cross-examination and in his submissions to the tribunal he relied exclusively on his alleged mental health disability. He did not refer, at any point, to any physical ailments. He kept repeating that he had been under threat; that it was his life which had been threatened and that he had therefore been disabled.

 

61. The relevant period for assessing disability would appear to be from the date of the receipt of the threat in October 2013 up to his dismissal on 21 November 2015.

 

62. Dr Glasgow had examined him on 4 November 2014 and had concluded that he was not disabled for the purposes of the Act and that he had indeed been fit to return to work. He attended a further appointment with a Dr Winnie Maguire on 7 January 2015 who had also concluded that he had been fit to return to work. He had been further examined on behalf of the respondent by Dr Helen Harbinson a consultant psychiatrist on 29 July 2015. She concluded that the claimant had not been suffering from post traumatic disorder as he had been alleging at that point.

 

63. Therefore the tribunal cannot conclude, on the basis of the evidence before it, that the claimant had been during the relevant times disabled for the purposes of the 1995 Act. The claim of disability discrimination would therefore fail on that point alone.

 

64. Even if the tribunal had concluded that he had been disabled during all or part of the relevant period for the purposes of the 1995 Act, the tribunal would have concluded that there had been no unlawful disability discrimination and no unfair dismissal for the reasons set out below.

 

Reasonable adjustments

 

65. As indicated above, the claimant believed that because he had been threatened he was therefore ' disabled' for the purposes of the 1995 Act. He further believed that it was up to him to determine whether or not any adjustment by way of redeployment which had been offered to him by the respondent was reasonable or not. It had been entirely his choice.

 

66. The claimant had, immediately following the receipt of the threat, been offered temporary redeployment. He had refused that temporary redeployment. He continued to refuse that redeployment. He had been offered a post at the same grade, doing the same work in Blackstaff Way. This location was within West Belfast and, insofar as it is possible within Northern Ireland, a safe work location. His objections to that work location were, firstly, non-specific. He alleged that he would have difficulties adjusting to a transfer and that he had a support network in the place where he was currently engaged, Springfield Avenue, while he simultaneously objected to remaining in that location. He then alleged that he could not move to Blackstaff Way because a neighbour from a Loyalist estate was working there. He then alleged, in the course of the hearing and apparently for the first time, that the reason why he did not accept Blackstaff Way was because a shooting had occurred in Kennedy Way which is some distance away. That shooting had occurred 25 years previously.

 

The reasons put forward by the claimant for not accepting Blackstaff Way were not just inconsistent; they made no sense. Blackstaff Way had no flag issue. It was in a Catholic area. If it had been reasonable for the claimant to reject a location simply because someone had been shot within approximately a one mile radius at any point in the last quarter century, the scope for redeployment within Belfast would have been very limited indeed.

 

67. The respondent had arranged repeated and lengthy meetings to discuss redeployment with the claimant and his trade union representatives. It went to considerable efforts to locate vacancies and to put those vacancies to the claimant. It looked as if their efforts had finally been successful when the claimant indicated that he was interested in the cleaner/labourer post at City Hall. However, when it was clarified that that post included occasional ad hoc placements in other locations, he refused that offer. Even when the respondent Council took the extraordinary step of indicating that he could fill that post on the basis that he remained entirely within City Hall until PSNI had had a chance to assess risk at other locations, he refused to comply. He refused to allow PSNI to release details of the risk assessment to the respondent Council.

 

68. It is difficult to understand what the claimant believes the respondent Council should have done in these circumstances. Apart from the variation in the reasons he put forward for refusing Blackstaff Way, he asserted in the course of the tribunal hearing that he would have been prepared to work in Falls Park and in the City Cemetery. There was no evidence of vacancies in either location. When it was put to him that it was odd that he would be prepared to work in Falls Park but not in Blackstaff Way when both were in the same area, the claimant could not put forward a convincing explanation. When it was further put to him that it was odd that he would refuse a placement in Blackstaff Way which had no flags issue and which was in a Catholic area when he had apparently been willing to work in City Hall and also, he stated in Ormeau, both of which were in neutral or mixed areas, he could again not explain the reasoning behind his choices.

 

69. The 1995 Act simply requires that reasonable adjustments should be put in place if the claimant is disabled and if a relevant provision, criterion or practice is in place. Leaving aside the issues of disability and of the identification of a relevant provision, criterion or practice, it is absolutely clear that the employer has done everything that could be required by way of reasonable adjustments. Therefore, even if the claimant had been able to establish he had a disability for the purposes of the 1995 Act (and he has not been able to do so) and even if he had been able to establish a relevant provision, criterion or practice for the purposes of Section 4A, the claim would still have failed. It is difficult to imagine what more the respondent could have done in these circumstances to seek a solution to this problem. Despite a significant sick absence record which preceded and post-dated the threat to the claimant, and despite the claimant's repeated and illogical refusal of valid redeployments, the respondent persisted, long past any reasonable point, in seeking to assist the claimant.

 

70. Therefore the claim under the 1995 Act would have been dismissed even if the claimant had been able to establish a disability for the purposes of that Act.

 

Unfair dismissal

 

71. The respondent complied fully with the three-step statutory procedure set out in the Employment (Northern Ireland) Order 2003. A proper written notification was sent to the claimant in respect of each of the repeated meetings to do with sick absence and, in particular, in relation to the final sick absence meeting. A proper meeting had been held and the claimant had been represented. All issues had been considered. A decision had issued and an appeal had been offered and had been heard. Therefore the dismissal was in accordance with the statutory procedural requirements.

 

72. It is clear that the reason for this dismissal was the claimant's repeated absences on a range of ill-health reasons, and more recently alleged work-related stress. This was either conduct or capability and therefore a potentially fair reason falling within the 1996 Order.

 

73. The history of the matter is set out above and it would be pointless to set it out again in detail at this point. The claimant had received a threat in October 2013. That threat purported to come from Loyalist paramilitaries. The claimant and his then trade union representative argued that it had been issued because of grievance he had lodged against fellow employees. Whatever the reason and status of that threat was, it is clear that the employer took the threat seriously and that it had immediately offered the claimant temporary redeployment. It is also clear that that temporary redeployment had been refused and all subsequent offers of redeployment had been refused by the claimant.

 

74. The decision to dismiss the claimant, given his poor sick record and given his repeated failure to accept redeployment offers, was a decision which a reasonable employer had been entitled to make. It was a decision within the band of reasonable responses and therefore a decision that cannot be disturbed by this tribunal.

 

75. Therefore the claim of unfair dismissal under the 1996 Order is dismissed.

 

 

 

 

 

 

Vice President

 

 

Date and place of hearing: 14 and 17 October 2016 at Belfast

 

 

Date decision recorded in register and issued to parties: