Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 943/15

 

 

CLAIMANT: Colin Watterson

 

RESPONDENT: Health and Safety Executive for Northern Ireland

 

 

DECISION

The unanimous decision of the tribunal is that:

 

(1) The claimant's claim of unfair dismissal was lodged outside the statutory three month limit and accordingly the tribunal does not have jurisdiction to hear his claim. The claim of unfair dismissal is dismissed.

 

(2) The respondent had sufficient knowledge to trigger its duty to make further enquiries as to whether the clamant had a disability (i.e. Asperger's Syndrome). The respondent's failure to make such enquiries led to a situation where it failed to make reasonable adjustments in account of the claimant's disability in dealing with a disciplinary matter. The respondent is ordered to pay to the claimant the sum of £6000 by way of compensation for injury to feelings.

 

Constitution of Tribunal:

Employment Judge: Employment Judge McCaffrey

Members: Mr J Law

Mr A Kerr

 

Appearances:

The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by Worthingtons Solicitors.

The respondent was represented by Mr Mark McEvoy, Barrister-at-Law, instructed by the Departmental Solicitor's Office.

 

ISSUES

 

1. Unfair Dismissal

 

(i) Was the claimant dismissed from his post on 19 June 2014 contrary to the Employment Rights (Northern Ireland) Order 1996?

 

(ii) If so, was the claimant automatically reinstated in his post by the finding of the Civil Service Appeal Board ("CSAB") dated 14 January 2015 and notified to the claimant and the respondent by letter of 15 January 2015?

 

(iii) If not, was the claimant's claim of unfair dismissal lodged within the statutory three month time limit?

 

(iv) If not, should that time limit be extended on the grounds that it was not reasonably practicable for the claimant to lodge his claim in time?

 

(v) If the claimant's claim is in time, or time is extended for lodging his claim, was the claimant unfairly dismissed, contrary to the Employment Rights (NI) Order 1996 ("the 1996 Order")?

 

2. Disability Discrimination

 

(i) Was the claimant at all or any relevant times disabled for the purpose of the Disability Discrimination Act 1995 (as amended) by reason of ("the 1995 Act") (a) depression and (b) Asperger's syndrome?

 

(ii) If the claimant was a disabled person by virtue of either suffering from depression and/or Asperger's syndrome, was the respondent in breach of its statutory duty to make reasonable adjustments for the claimant under the 1995 Act?

 

(iii) When was the respondent or any of its staff aware of the nature of the claimant's disability i.e. (a) depression and (b) Asperger's syndrome?

 

(iv) Could or should the respondent reasonably have been aware of the diagnosis of Asperger's syndrome sooner than it actually was?

 

(v) Did the respondent fail to make reasonable adjustments for the claimant's disability in relation to the claims of harassment against him and in particular in relation to their decision to proceed with disciplinary proceedings and ultimately to dismiss the claimant?

 

SOURCES OF EVIDENCE

 

3. The claimant was employed by the respondent ("HSENI") as an Administrative Officer. All the respondent's side witnesses were employees of HSENI. The tribunal heard evidence from the claimant and from his union representative, Mr Kieran Bannon. We also saw two medical reports, one from Dr Brian Mangan, Consultant Psychiatrist, and one from Dr Joanne Douglas, Consultant Psychologist, which were significant in the assessment of the claimant's mental health condition. For the respondent, we received witness statements and heard evidence from Mrs Pip Crook, the Head of Human Resources and Finance of HSENI, from David Beck who is involved in administrative functions within HSENI and Keith Morrison, who is Chief Executive of HSENI. We also received witness statements and heard oral evidence from Conaill Taggart, Kathryn Lorimer and Valerie Lyttle. In addition we considered a number of documents were opened to us in the course of the hearing.

 

4. We found both the claimant's evidence and that of Mrs Crook unsatisfactory in a number of respects. On a number of occasions when the respondent's counsel was putting points to the claimant, his answer was either that he didn't recall and that he had been very ill at the time or that he had handed over responsibility for dealing with certain matters to his union representative and/or his father. In essence the claimant was not keen to take responsibility for his actions at various points in this entire process. Mrs Crook referred to procedures but was unclear in a number of her responses. She was vague and on occasions did not answer the questions which were put to her. We deal further with her evidence below.

 

THE UNFAIR DISMISSAL CLAIM

 

5. The first issue which arises in relation to the unfair dismissal claim is the question of the time limit. The claimant was dismissed from his post with the respondent with effect from 19 June 2014. The time limit for his claim to be brought was three months from the date of dismissal and the claim should therefore have been lodged by 19 September 2014. The claim was in fact lodged on 11 May 2015, almost eight months outside the initial time limit.

 

Relevant Law

 

6. Under Article 145 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") complaints of unfair dismissal must be presented to an industrial tribunal within three months of the dismissal.

 

Article 145(2) provides as follows:

 

"145(2) Subject to paragraph (3), an industrial tribunal shall not consider a complaint under this Article unless it is presented to the tribunal—

(a) before the end of the period of three months beginning with the effective date of termination, or

 

(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months."

 

Sub paragraph (3) is not relevant for the purposes of this claim.

 

7. The claimant was advised on 19 May 2014 that he would be dismissed with effect from 19 June 2014. The time limit for presentation of his claim therefore expired on 19 September 2014. His claim to the industrial tribunal was not presented until 11 May 2015, almost eight months outside the original time limit.

 

8. The case put forward on behalf of the claimant was that his appeal to the Civil Service Appeal Board ("the CSAB"), which was heard in January 2015 and the outcome notified to the claimant and the respondent on 15 January 2015, had the effect of reinstating the claimant. He argued in effect that he was only dismissed when the respondent wrote to the CSAB on 23 February 2015 indicating that it did not intend to accept the recommendation of the CSAB to reinstate the claimant and inviting the Board to assess compensation for the claimant instead. The claimant's representative argued that the claim was in time because the dismissal did not occur until 23 February 2015.

 

9. The respondent disputes this position, stating that the claimant was dismissed with effect from 19 June 2014 and should have lodged his claim within the statutory three month time limit. Mr McEvoy noted that neither the claimant nor Mr Bannon gave any evidence about why it was "not reasonably practicable" for the claim of unfair to be lodged in time. Mr Grainger confirmed in his submissions that the claimant's case was that he had been reinstated by the recommendation of the CSAB. The claimant did not rely on the "not reasonably practicable" clause in Article 145(2)(b) to extend time.

 

10. The CSAB policy was opened to us in the course of the hearing. In the appeal outcome letter from Mr Morrison to the claimant dated 18 July 2014, he was reminded of his right to appeal to the Civil Service Appeal Board within three months of the date of dismissal. The policy consists of several pages, but the relevant extracts are as follows.

 

11. On the first page of the policy it is set out that:

 

"An appeal by a member of staff to the Civil Service Appeal Board Appeal Board does not prejudice an individual's right to appeal to an Industrial Tribunal."

 

12. Paragraph 1.1 of the policy notes that the Appeal Board is a lay body and does not follow legal procedures. Paragraph 3.1 provides:

 

"The entitlement to appeal to the Appeal Board does not prejudice your statutory rights, under the provisions of the Employment Rights (NI) Order 1996, to complain against unfair dismissal to an Industrial Tribunal."

 

13. After setting out the procedure for submission in consideration of an appeal, it provides as follows:

 

"5.4.5 The Appeal Board, having regard to all of the written and oral evidence provided, will decide whether the decision to retire early or to dismiss is fair. If the Board decides that the decision is unfair, it may recommend to the Head of the Department either that you should be reinstated or re-employed or specify what compensation (or additional compensation in a case of early retirement) you should be paid. If the Board considers that some other action is more appropriate, it will recommend accordingly ...".

[Paragraph 5.4.6 deals with the question of majority decisions and what happens if the decision is that the dismissal/early retirement was fair.]

 

"5.4.7 If the Board makes a recommendation to reinstate or re-employ you, the Head of the Department or an officer at a level determined by the Permanent Head of Department (see policy 6.01, Standards of Conduct) will decide whether to accept the Appeal Board's recommendation and this decision will be final ... . If a recommendation to reinstate or re-employ you is rejected by the Department, the Appeal Board will consider whether to award compensation, or additional compensation in the case of early retirement."

 

The issue therefore is the effect of these provisions of the CSAB Appeals Policy and whether or not this is effective to reinstate the claimant to his original position?

 

 

14. The leading authority in relation to this issue in this jurisdiction is McMaster -v- Antrim Borough Council (2010) NICA 45 which related to a claim of unfair dismissal brought by Mr McMaster against his former employers, Antrim Borough Council, and the effect of an appeal to an external body, in that case the Labour Relations Agency. Mr McMaster had been summarily dismissed for gross misconduct and had the right of appeal to the Labour Relations Agency as part of his contract of employment, which provided that the decision of the arbitration panel appointed by the LRA would be "final and binding on both parties". The LRA found in favour of the claimant but the employer refused to accept this and refused to reinstate him.

 

15. Giving the judgment of the Court, Coghlin LJ stated as follows at paragraphs 11, 12 and 13 of the judgment:

 

" [11] The fundamental purpose served by an agreed appeal disciplinary procedure is to ensure that both sides have a full and fair opportunity to put their respective cases and secure a just outcome to any dispute including putting right, where necessary, any errors or shortcomings apparent in the initial hearing. As a matter of principle, it is difficult to accept that the effective operation of an appeal could be simply prevented by an employer either refusing an employee the right to resort to such an agreed procedure or by rejecting an outcome considered to be adverse to his or her interest leaving the frustrated employee with compensation for breach of contract as his or her only remedy. While they were essentially delivered per curiam, we consider apposite the words of Lord Bridge who, when delivering the judgment in West Midlands Co-Operative Society Limited v Tipton [1986] AC 536 at 546 said:

"Adopting the analysis which found favour in J. Sainsbury Limited v Savage [1980] IRLR109, if the domestic appeal succeeds the employee is reinstated with retrospective effect; if it fails the summary dismissal takes effect from the original date. Thus, in so far as the original dismissal and the decision on the domestic appeal are governed by the same consideration, sc. the real reason for dismissal, there is no reason to treat the effective date of termination as a watershed which separates the one process from the other. Both the original and the appellate decision by the employer, in any case where the contract of employment provides for an appeal and the right of appeal is invoked by the employee, are necessary elements in the overall process of terminating the contract of employment."

 

...

 

"[12] In the course of delivering the judgment of the Court of Appeal in Roberts -v- West Coast Training [2004] IRLR 788 Mummery LJ noted at paragraph 24 that the appeal decision had been taken within the terms of the relevant contract and that it was not necessary to effect an express reinstatement to the position previously held by the employee nor is it necessary to make an offer for him to enter into a new contract in order to continue the contract of employment. At paragraph 29 he referred with approval to the general principles enunciated by Lord Bridge in Tipton. Arden LJ delivered a concurrent judgement in the course of which she said at paragraph 34:-

 

"The applicant's demotion was not a dismissal and the decision of the appeal process of the employer, made pursuant to the applicant's contract with the employer, to demote the applicant, resulted in the continuation of the original contract of employment. That is the normal result of an internal appeal procedure unless the contract otherwise expressly provides [emphasis added]: see per Lord Bridge in West Midlands Co-Operative Society v Tipton [1986] IRLR 112, 114.""

 

" [13] Finally, we refer to the useful review of the authorities by Silber J when giving judgment in the EAT in Ladbrooke Betting and Gaming Limited v Ally [2006] All ER(D) 77. After noting Tipton and Sainsbury Silber J then referred to Roberts and went on to say at paragraph 18:

 

"Pausing at that stage, that case is, to my mind, clear authority for the proposition that - unless there was a contractual provision to a contrary effect as a result of an appeal process - the decision to dismiss is replaced by the decision which means that the employee is not to be regarded as having been dismissed.""

 

 

16. The decision in McMaster and the authorities stated above was summarised by Langstaff J in Salmon -v- Castlebeck Care (Teesdale) Ltd (in administration) and Danshell Health Care Ltd (UKEAT/0304/14/DM) where he stated:-

 

"Where the effect at common law, contractually, is that a decision has been taken to allow the appeal, it seems to me that it is a decision which, on the law as I have set it out by reference to Roberts, GS4 and McMaster, has the effect of reviving the contract, subject only to there being some contractual term or provision which prevents it [emphasis added]."

 

There is a lack of reported decisions on the effect of a successful appeal to the CSAB, however in Adivihalli -v- Export Credits Guarantee Department (EAT/917/19), Morison J commented:

 

".... It is true that the [Civil Service] Appeals Board was entitled to allow an appeal or dismiss an appeal. If it allowed an appeal then it obviously had power to make recommendations. But it was an independent body and it was unlikely, therefore, that the various departments would wish to confer on such an independent body the right to compel it to take back employees in whom it had lost trust and confidence."

 

While this comment is not part of the decision as regards reinstatement in that case, it echoes the procedure set out in the NI CSAB appeals procedure.

 

17. What concerns us in this case is the wording of the policy on appeals of the NI CSAB and its power to deal with appeals from dismissal. First of all, the policy makes it very clear that an appeal to the CSAB does not take the place of a claim to an industrial tribunal. Perhaps significantly, a claim to the CSAB can be brought within three months of dismissal, the same time for bringing a claim before the industrial tribunal. The policy states on two occasions that it does not prejudice the statutory right to bring a claim for unfair dismissal. Secondly, the policy makes it clear that the Board dealing with the claim is a lay body and does not follow legal procedures (see para 1.1).

 

18. Thirdly, and most significantly of all, the policy provides at paragraph 5.4.7 that it is for the Head of Department which employed the appellant to decide whether or not to accept the Board's recommendation, " and this decision will be final". The same paragraph goes on to set out what happens if a recommendation to reinstate or re-employ an appellant is rejected by the Department i.e. that the Board will then consider whether to award compensation. The CSAB's policy is part of the NI Civil Service Handbook and is accordingly part of the claimant's terms and conditions of employment. Nowhere in that policy does it state that the recommendation of the CSAB is final and binding on the parties, which was the case in McMaster. Indeed, on the contrary, it is clearly set out that the Head of the relevant Department can decide whether or not to accept the CSAB's recommendation. If the recommendation is not accepted, the CSAB will consider whether to award compensation. There is therefore an express provision in the contract of employment that reinstatement is not the automatic result of a successful appeal to the CSAB. Any recommendation for reinstatement is subject to the agreement of the relevant Head of Department and their decision is final (see para 13 above). In the decision of Employment Judge Drennan in Brown v DRD (case ref no. 2844/10) and as per the certificate of correction issued in that case, he noted that if the claimant had chosen the remedy of reinstatement (rather than compensation, as he did) and it had been recommended by the CSAB and agreed to by DRD, he would have found that the dismissal had vanished and the tribunal did not have jurisdiction to hear and determine the claimant's claims. Significantly, he did not find that the CSAB's recommendation to reinstate automatically effected reinstatement, rather reinstatement could only take place with the agreement of DRD.

 

19. As we have noted above, it is the Department's decision, rather than that of the CSAB, which is final (see para 5.4.7 of the CSAB Policy). Accordingly, it is our finding that the claimant was not automatically reinstated to his post as a result of the recommendation of the Civil Service Appeal Board on 15 January 2015 which was rejected by the first-named respondent. The claimant's representative has stated he does not seek to rely on the "not reasonably practicable" rule to seek an extension of time. The unfair dismissal claim is therefore out of time, and accordingly, it is dismissed as the tribunal does not have jurisdiction to hear it.

 

THE DISABILITY DISCRIMINATION CLAIM

 

FACTS

 

20. The timeline of events was as follows. The claimant was employed by the Northern Ireland Civil Service (of which the respondent is an Agency) from August 1991 to 19 June 2014. Initially he was appointed as an Administrative Assistant and he was promoted to Administrative Officer from June 2004. He transferred to HSENI on 26 March 2012.

 

21. The claimant asserted that he had a telephone conversation with Mr Beck about the job with HSENI before he moved there, and that in the course of this conversation Mr Beck said he had spoken to the claimant's line management about his depression and that HSENI were "very accommodating and understanding of all such issues". Mr Beck denied that part of this conversation took place, saying that he had been on paternity leave from 5 March 2012 until 12 April 2012. There was however an email exchange between the two on 2 March when Mr Beck refers to their "constructive chat" and they set up a meeting for the following week, which Mr Beck did not attend due to paternity leave. Mr Beck agreed he had spoken to the claimant about the job, but said he had no recollection of speaking to anyone about the claimant's health issues. Ms Lorimer, Mr Taggart and Valerie Lyttle all agreed they had never been aware of the claimant having any mental health issues while he worked for HSENI. The claimant said in his evidence that he was reluctant to publicise his health problems, which we appreciate can be difficult to raise. We find as a fact that the claimant and Mr Beck did have a conversation about the job but we cannot say with any certainty that the claimant's mental health was discussed in the terms the claimant suggested.

 

22. The claimant had suffered from depression from around 2009/2010 and had been absent due to stress from late 2010, returning to work on a phased return in April 2011 with additional assistance and support from the Cedar Foundation under the Workable (Northern Ireland) Programme. Mrs Crook said in cross-examination that she had not been provided with a copy of the claimant's personal file when he moved to the first-named respondent in March 2012, although she had been made aware later that the claimant suffered from depression. The claimant continued on medication in relation to treatment for depression until December 2012 when he decided to discontinue his medication without medical advice because he wanted to be sure that the feelings he had developed for a colleague at work were not influenced by "those chemicals".

 

23. The claimant had formed an attachment to a female colleague, Ms A, who was rather younger than him. In or around December 2012 he started to send her messages and e-mails which (in his words) expressed his feelings for her and provided an insight into his hobbies and interests outside work. Parts of some of the messages were work-related, as the claimant was a trade union representative. These messages were sent, he said, between December 2012 and February 2013. According to a complaint which was subsequently lodged by Ms A, she did not receive some of these messages until February 2013.

 

24. While it is fair to say that the messages were not sexual in nature or aggressive, they dealt with a number of both work related and personal matters and are lengthy, persistent and in some cases rambling. One of the messages invited Ms A out for a meal and a few drinks but the message was verbose and over-familiar. The claimant subsequently repeated this invitation to a meal in a further extremely lengthy e-mail of over four type-written pages. He also asked Ms A if she fancied getting married and said that he could not waste any time at his age. The same e-mail had a postscript which read:-

 

"Note to self, do not bottle out of sending this e-mail, even if the result might end up being a P45 and my eternally ruined life.... Again, just sayin' like, ye eejit!: -) "Better to burn bright in a blaze of glory than just to fade away ...." pps only I could do this by e-mail .... I mean, I know writing is my thing and I am a bit shy, awkward, eccentric, introverted, extroverted that way but this is ridiculous, even by my standards ... proposing in a trade union linked e-mail ... Ah well I suppose it's a bit different, isn't it! A world first perhaps?!:-)"

 

25. On 1 February 2013, the claimant subsequently sent Ms A pictures of his boat, offering to take her out fishing on Lough Erne and suggesting that they might go out together fishing or that he would take her to the Glens of Antrim for a picnic. Again these e-mails were long, repetitive and could have been seen as overly familiar. Ms A replied by e-mail declining the offer of going out in the boat. She added, "I get the feeling you would like more than friendship. I prefer to be just friends and nothing more. Hope this doesn't make things awkward between us."

 

26. The claimant responded saying that he respected her wishes and indicated that he would stop writing to her regarding anything that wasn't work related. He then sent her a further message on 5 February 2013 at 9.30pm at night. Amongst other things he asked her not to write him off and tried to persuade her again to let him take her out. He added,

 

"What's so wrong with me? Is there more to it that you are not telling me? Give me a chance. Please don't be heartless towards me, like you were in that note and don't treat me with scorn for being totally genuine with you ..."

 

He added,

 

"You can take me down and ruin my entire life any time you want to with everything I have shared with you. I know that I have deliberately left myself totally open to you ...".

 

27. The following day Ms A spoke to her line manager and made a complaint in relation to the claimant's messages to her, claiming that she felt that she had been harassed. The claimant then texted her on her private mobile phone to ask if she was alright and sent her a lengthy e-mail. He had obtained her mobile phone number from a union membership application form and Ms A expressed concern that he might use other information on the form to call at her home address.

 

28. On the morning of 6 February, the claimant was called to a meeting by Mrs Crook and suspended from work pending an investigation into the complaint of harassment against him. He was sent a suspension letter which amongst other things told him that he should not have any contact with anyone within the Department in connection with the alleged events, other than his trade union representative or a work colleague who would accompany him to the interview. He was also told that he would be referred to the Occupational Health Service for a general fitness assessment and that he should make every effort to attend.

 

29. Notwithstanding that he was advised not to contact colleagues within the Department, the claimant sent Ms A a Valentine's Day card and a rose at work on 13 February 2013. On the card he had written a message saying that he was sorry (in French) and signed the card, "your friend". Ms A, already perturbed by the previous messages, was more perturbed by the message and rose received on 13 February and reported this immediately to the police. Later that day the police attended with the claimant, he was arrested and subsequently charged with harassment.

 

30. Ms Crook referred the claimant to Occupational Health for an assessment on 7 February 2013 and as part of that assessment, she cited details of the reason for referral. She indicated on the form,

 

"As a result of suspension, an assessment of this employee's general fitness and any possible underlying mental health issues should be determined."

 

31. Her evidence on cross-examination was that, having read the content of the emails and Facebook messages, she was concerned at their content. She considered that some of the emails were quite threatening in tone, while others were quite naive. She noted the postscript to the email (see para 24 above) and the messages sent after he told Ms A he would stop were "quite threatening". She also noted his comment in an email:

 

"You could take me down and ruin my life any time you want to."

 

which she considered raised concerns about his mental health.

 

32. When she made the initial reference to Occupational Health, Ms Crook did not ask for any assessment of whether the claimant was disabled within the meaning of the Disability Discrimination Act, but focused on the claimant's general health and underlying mental health problems. She commented that the claimant's comment in the postscript about how a possible result could be him "getting his P45" indicated an awareness by the claimant that his behaviour was inappropriate.

 

33. The claimant was subsequently advised by HR Connect, (who deal with investigation and disciplinary matters on behalf of the Civil Service) that he was to be investigated in relation to harassing a female member of staff and an abuse of his trade union position. This investigation was however put on hold pending resolution of the criminal proceedings.

 

34. The claimant went for an assessment at Occupational Health on 18 February 2013 but also submitted sick lines from his GP from 13 March 2013 onwards. HSENI however still treated him as suspended on full pay. The initial assessment by Occupational Health in February 2013 referred to the fact that the claimant had suffered from depression and chronic fatigue and that both these conditions "had been under satisfactory control until the events of 6 February 2013". The claimant had told the reporting doctor, Dr Colin Graham, that he was anxious and worried about the suspension and stated that there was no justification for him having been suspended. The claimant did not tell Dr Graham that he had come off his anti-depressant medication in December 2012. At that time Dr Graham considered the claimant fit for work. The claimant had also attended his GP on 19 February 2013 when the GP noted:

 

"Attending counselling and questioning if there "is something wrong" with him. Autistic features. Certainly can be mildly over familiar and appears to be misunderstood at times in past".

 

The GP notes also show that on a previous attendance on 9 January 2013 the claimant had told the GP he had come off his medication but had "signif withdrawal SE and restarted. Not keen to reduce". It is not therefore clear to us that the claimant was in fact off his medication at the time of the 6 February incidents.

35. At this time the claimant had nominated his NIPSA union representative, Noel Griffin, to represent him. The claimant had not been given a copy of any complaint by Ms A nor had he been advised of the exact detail of the complaint in relation to his trade union activities. It transpired that the concern was that Ms A had been contacted on her personal mobile phone by the claimant, using information she had completed on a union membership application form. Ms A was anxious that the claimant might have used this information or might indeed decide to call at her home on an evening or a weekend and she was understandably apprehensive about this.

 

36. Following the claimant going on sick leave on 13 March 2013, HSENI made a number of referrals regarding him to the Occupational Health Service (OHS). Ms Crook's evidence was that there were seven referrals in all. The claimant complained that HSENI had not in his view made proper or adequate inquiries into his mental health. Specifically, he complained that HSENI should have requested a specialist opinion in relation to his mental health and that it would have been aware sooner that he suffered from Asperger's syndrome, had it carried out proper inquiries. The claimant was referred to Dr Beattie at OHS and he saw him initially on 8 April 2013. Dr Beattie took a detailed history from the claimant in relation to his depression and indicated that he considered the claimant was unfit for work at that time. He also indicated that he thought it was likely the claimant would have difficulty coping with a face to face meeting but that resolution of the work situation may be of assistance to the claimant's health. The reference made to OHS by HSENI in May 2013 referred to concerns raised by NIPSA that the claimant was unfit to complete a written statement required to progress the disciplinary case. Advice was requested on the claimant's mental illness and general debility. Dr Beattie subsequently wrote to the claimant's GP on 27 June 2013, asking for more details of the claimant's underlying health condition. He specifically asked for any information in relation to the claimant's current mental state, details of any further specialist intervention information relating to this and copies of any relevant hospital reports. It had taken some time to obtain the claimant's consent to approaching his GP, hence the delay between April and June. Dr Finlay, the claimant's GP, replied on 15 July 2013 setting out the medication that the claimant was taking. He enclosed a relevant specialist report from Frances Turkington, a mental health practitioner with the Belfast Health & Social Care Trust and also a report from Ms Elaine Wright, Cognitive Behavioural Psychotherapist with the Police Rehabilitation and Re-training Trust. The claimant in his evidence referred to Ms Wright having flagged up the issue of the claimant having Asperger's disorder. In fact the relevant part of her report of 12 April 2013 reads:

 

" He (the claimant) is currently considering an assessment to explore the possibility of having Asperger's disorder".

 

Ms Wright makes no comment on this nor does she express any view on it. It is clear that the question of the claimant having Asperger's syndrome had been raised by him, not Ms Wright.

 

37. The claimant contested the charge of harassment which was brought against him and hearing of which had been delayed. Donna Giboney, a representative from HSENI, had gone to court to see what was happening and reported to Ms Crook that the claimant's barrister had requested a further adjournment because, having sought a psychiatric assessment on the claimant from a consultant at the Belfast City Hospital, they had to approach a further doctor. Ms Giboney stated in an e-mail dated 24 May 2013:

 

"The barrister mentioned that Colin is on the autism spectrum and after some discussion the case was adjourned until 21.6.13. It should be noted that HSENI was not made aware that Colin had autism and it certainly isn't noted in his personal file."

 

Mrs Crook did not raise this in any of her contacts with the claimant's union representative. When challenged on this, her response was that she assumed any psychiatric assessment the claimant received would be shared with the respondent. She did not clarify this with the union representative however nor did she raise the matter with OHS. Given that Dr Beattie was at the time waiting for consent to allow him to approach the claimant's GP for details of any specialist treatment the claimant was receiving, there may have been an opportunity to investigate the autism issue in advance of the matter moving to the disciplinary stage.

 

38. Dr Beattie sent a report to HSENI in September 2013, referring to his correspondence with the claimant's GP. His conclusion was that the claimant should be regarded as temporarily unfit for work. He added,

 

"On the information available it is not possible to say if or when he will be able to participate in any process to try to resolve the current allegations".

39. The criminal case was finally heard in August 2013 when the claimant was convicted of harassment, fined £500, ordered to pay Ms A £500 compensation and a restraining order was made against him. On appeal in January 2014, the conviction and the fines were affirmed and the restraining order was varied so that the claimant could have contact with Ms A in the course of his work and it would not restrict him from resuming work. On both occasions the claimant was able to attend court and gave evidence. We were advised that no issue had been raised regarding the claimant's fitness to plead in the harassment prosecution. The judge hearing the case commented that while she did not consider the claim of harassment to have been one of the worst she had seen, a line had been crossed and that she did not expect to see the claimant back in court. The claimant subsequently referred his case to the Criminal Cases Review Board, but at the date of this hearing there had been no outcome from that.

 

40. Throughout the period of his suspension the claimant was referred by his GP to the Community Mental Health Team and had continued with cognitive behavioural therapy. In April 2014 he was reviewed by Hugh Mulvenna, a Mental Health Social Worker. In his report to the claimant's GP he notes:

 

"Today he [the claimant] informed me that he is awaiting specialist assessment as regards possible autistic traits. Joy (Joy McCormick CPN) completed a standard screening tool as regards ASD (autism spectrum disorder) in which he scored a 5/10, well below the threshold that would suggest further assessment was required. I detect nothing in his manner or reported behaviours suggestive of autistic traits."

 

41. There is nothing in the report issued by the claimant's GP to the HSENI in February 2014 to suggest that the GP was referring the claimant for further assessment or investigation in relation to autism or Asperger's syndrome. It was not clear to us whether the GP shared this assessment by Mr Mulvenna with anyone else subsequently, as no later GP reports were opened to us at the hearing. It is unclear too whether Mr Mulvenna's report was shared with HSENI while the claimant was employed by it.

 

42. Following the outcome of the criminal appeal in February 2014, the claimant's GP, Dr Finlay, wrote a letter confirming that the claimant was undergoing his own and specialist care for psychiatric and psychological ill health since November 2010. He noted that this was ongoing and the claimant continued on medication. He also noted that the claimant had intermittent problems with stress since at least 1999.

 

43. On 28 February, Ciaran Bannon, the claimant's union representative, e-mailed Mrs Crook indicating that the claimant would unfortunately not be capable of coping with meetings at present. He indicated that the claimant's health had reverted to the position "Noel had previously contacted you about". He asked Mrs Crook to make a referral to OHS based on the possibility of a medical retirement and asked to meet her "for a chat".

 

44. On 11 March, Mrs Crook sent a letter to the claimant, care of Mr Bannon, inviting him to a disciplinary meeting. She set out in that letter that the claimant's alleged behaviour was considered to be in breach of rules of conduct as follows:-

 

·                 a breach of the NICS Dignity at Work Policy and in relation to the harassment of Ms A;

 

·                 a breach of the claimant's responsibilities under the NICS Code of Ethics particularly in relation to integrity where the claimant was required to "always act in a way which is professional and that deserves and retains the confidence of all those with whom you have dealings";

 

·                 thirdly, it was alleged that his criminal conviction and related behaviour had the potential to seriously damage the reputation of HSENI and the wider NICS.

 

The claimant was warned in this letter that this was considered to be a serious matter which could potentially constitute gross misconduct and could lead to disciplinary action, including dismissal. He was referred to the appropriate Civil Service policies and advised of his right to attend the meeting. It was noted in the letter that the claimant may not be able to attend a disciplinary meeting. He was advised that if this was the case, he was entitled to provide a written reply to the charges within 10 working days of the date of the letter.

 

45. There was some e-mail correspondence between Mrs Crook and Mr Bannon in relation to the provision of a medical report regarding the claimant's health. His GP produced a further handwritten letter on 4 April 2014 referring to the claimant having an ongoing depressive illness which meant he was unable to attend in relation to work matters. The doctor noted that this situation would continue for the foreseeable future. The letter was sent to Mr Bannon by Dermot Breen, Deputy Chief Inspector, on 17 April 2014, indicating that there was no intention of proceedings with the investigation in relation to the matter and that the respondent was happy to meet with Mr Bannon for a discussion before taking any decision, provided the meeting could take place within a reasonable period of time. He set out a further opportunity for the claimant, or Mr Bannon as his representative, to provide a written reply to the charges in the form of a statement. He noted that this statement was to be provided by Wednesday 30 April 2014. He also referred to a meeting arranged with Mr Bannon for Friday 2 May.

 

46. On 2 May 2014 Mr Bannon and Ms Kim Graham had a meeting with Mr Breen and Mrs Crook. This was an informal meeting and so there were no official minutes kept of it. Mr Bannon, however, had made some notes which were produced to the hearing. Effectively the thrust of this meeting was that the union side were offering to produce references to support the claimant's approach that he wanted to be able to return to work and that the motivation of getting back to work would give him purpose. Mr Bannon raised the issue of a potential medical retirement as an alternative, but Mr Breen made it clear that medical retirement was not an option. There was also an issue in relation to the location of any potential return to work. Mr Breen raised the issue as to whether the claimant's condition had impacted on how he behaved in February 2013 and Mr Bannon again raised the question of further medical input and asked whether Occupational Health would make contact with the claimant's therapist. Mr Breen indicated that this would be done if the claimant was due to return to work and it became necessary to look deeper at the therapist's opinion of the claimant's mental state. He noted however that the respondent was of the view that dismissal was an option. Mr Bannon emphasised that disciplinary procedures were not purely intended to be punitive and indicated that while the union did not condone harassment, he queried whether or not it was so serious that the claimant should lose his job. Mr Breen emphasised that all options would be taken into consideration before reaching a decision and noted "HSENI - conflict - employee with a criminal conviction". Mr Bannon asked if there was a further opportunity for medical information. Mr Breen indicated that this would come into play if the decision was that the claimant returned to work. He added that, "Don't see that any further medical evidence would give any further info regarding the offence behaviour".

 

47. Mr Bannon had previously (on 30 April 2014) sent a detailed letter to Mr Breen setting out the case for the claimant. He emphasised the claimant's history of depression, ME and psychiatric problems from which he was suffering at the time of the incidents and noted that his state of health had considerably worsened as a result of this case and the experience of the (criminal) court case. Mr Bannon included statements from the Cedar Foundation, Rehabilitation and Retraining Trust and the Cherry Valley Health Centre all of which set out the history of the claimant's illness. He noted:

 

"It would appear that despite the involvement of the Department in relation to the Cedar Foundation referral the HSENI was unaware, until recently, of Mr Watterson's psychiatric and depressive states".

 

At no point in this letter or at the meeting on 2 May did Mr Bannon refer to the claimant being assessed for autistic tendencies or Asperger's syndrome.

 

48. He set out the steps taken by the claimant in attending CBT sessions and the Judge's comments in relation to the claimant's appeal from his conviction for harassment. He suggested that the claimant had already experienced a penalty for his actions in relation to the criminal proceedings. He noted:

 

"While Mr Watterson may accept the potential for a disciplinary penalty in all the circumstances this should be measured, not excessive and reflect the approach and perspective applied by Judge Kennedy in terms of the lower end of the scale".

 

He noted an apology from the claimant for any stress caused to Ms A and noted that while the claimant's actions may have been misplaced or even misjudged, there was no malice or intent to harass Ms A.

 

49. Mrs Crook who was to be the disciplinary officer in the case then considered the various options and made herself a memo of the matters to consider. She noted the options which were available to the respondent were redeployment, a written warning or a final formal warning, disciplinary sanctions or dismissal.

 

50. She set out in her memo the breaches of Departmental Policies and Procedures concluding:

 

"His criminal conviction and his behaviour towards a member of staff and the misuse of personal information belonging to a member of staff demonstrates a standard of behaviour which falls far short of what is acceptable within the NICS and has the potential to destroy the trust between him and HSENI".

 

This was considered to be a serious disciplinary matter which could potentially constitute gross misconduct as set out in the NICS disciplinary policy 6.03 and Annex 2 (detailed below). She then set out in the document examples of behaviour which might lead to dismissal for gross misconduct, including criminal convictions, breach of NICS/ Departmental Policies and Procedures and unlawful discrimination including harassment or victimisation against colleagues or members of the public. Mrs Crook set out her consideration of action short of dismissal, such as a written warning or a final written warning and/or a possible demotion, which she indicated would be " a compassionate resolution given this is a first offence". She considered however that the claimant could not be accommodated in Ladas Drive as Ms A was working there or Longbridge House as Longbridge House would be locating to Ladas Drive within the next year. She then set out other options if it was considered that medical evidence has played mitigating role in Mr Watterson's behaviour, including a possible ban on promotion and downgrading. She also considered redeployment but noted that movement on the Management Moves list "is very slow as it is dependent on other Departments taking staff. Mr Watterson would have to stay here in the interim until a post elsewhere arises. Working relationships have broken down to such an extent this would not be ideal for all parties. It would be unfair to consider moving Ms A. HSENI cannot sustain suspension with pay indefinitely. This is not an option". She considered that the claimant had moved to the respondent from the parent Department DETI. She noted that DETI had not informed the respondent of the claimant's medical history when he moved. She considered the option of asking DETI to take the claimant back on demotion and place him on a management move list until another Department offered him a place. She said she considered it doubtful that DETI would agree to this, but there was no documentation to show if Mrs Crook had pursued this further with DETI.

 

51. When considering downgrading she noted that HSENI had one AA post on offer, but this would be in the same office where the claimant had previously worked with Ms A and was therefore not an option.

 

52. Mrs Crook also considered putting the claimant on the DDA priority pool and medical retirement but did not consider that these were viable options, particularly as medical retirement had recently been refused in another similar case of someone in the same age group. She took into account the medical evidence from OHS including the report in February 2013 and noted that immediately after the incident, it was considered that while the claimant was " a little anxious" and worried about the accusations against him, he was quite coherent. She also referred to the undated Cedar Foundation medical report.

 

53. On 19 May 2014, Mrs Crook wrote to the claimant setting out her decision to dismiss him. She stated:-

 

"I have given careful consideration to the witness statement and supporting medical evidence provided on your behalf by Mr Bannon. I have decided that your behaviour amounts to gross misconduct on the basis that the very serious charges against you were all proven, and collectively your actions fell well short of what is expected of a civil servant."

 

54. Within her account of the breaches of Departmental Procedures and Policies, Mrs Crook included a matter not strictly within the charges against the claimant of harassment and breach of Departmental Policies (namely, a previous caution for harassment). She referred to the claimant also having been convicted for harassment, fined and made the subject of a Restraining Order and referred to the NICS Disciplinary Policy which stated "a criminal conviction is an act of gross misconduct".

 

55. She referred to the claimant potentially bringing the organisation into disrepute and noted:

 

"Your criminal conviction and related behaviour has the potential to seriously damage the reputation of HSENI. In particular, given HSENI's Regulatory and Enforcement rule, your behaviour and subsequent criminal conviction is at odds with an organisation which must be seen to uphold and adhere to the law at all times. ..... HSENI views this as a serious act of gross misconduct in that you have destroyed the trust between yourself and the organisation."

 

56. The letter then goes on to consider the medical evidence, in particular a report from Occupational Health in February 2013 and a report from the Cedar Foundation. She notes:

 

"The report did not in any way suggest that you were experiencing mental health/depression during the time period in which the various incidents took place which led to the disciplinary action against you".

 

57. She continued by noting that HSENI was not disputing the fact that the claimant had a history of ME/depression/stress controlled by medication but went on to say:-

 

"I have considered lesser disciplinary sanctions, however in all cases the question of trust, integrity and confidence would remain and therefore, there is little mitigation in favouring a more lenient decision. I also considered our duty of care to you and to HSENI staff.

 

It is with regret that my decision is to dismiss you. ...."

 

58. The claimant was advised of his right of appeal and was advised that his date of dismissal would be Thursday 19 June 2014. The claimant sent a detailed appeal letter to Mrs Crook dated 28 May 2014. He noted that Mr Bannon was at a conference and he therefore wrote this appeal letter himself. In that letter he refers to his contact with Ms A, challenges whether or not his behaviour and the criminal conviction which he had received was an act of gross misconduct and went on to indicate that he had been off his medication when the incidents involving Ms A occurred. He indicated that NICS had been advised of his medical condition (depression) some time ago in 2011 and he noted that while he had not made a secret of his condition, he had not publicised it because of the stigma attached to mental illness.

 

59. Mr Morrison wrote to the claimant on 9 June 2014 to tell him that he would hear his appeal on 23 June 2014. At the appeal meeting the claimant was present and was represented by Mr Bannon. It was noted that Mr Bannon had made submissions on the claimant's behalf at the appeal and queried why a further reference to Occupational Health had not been arranged. The notes of the appeal indicate that Mr Bannon's case on behalf of the claimant was that the penalty of dismissal was excessive and that there was an absence of balance in the respondent's approach to the case as reflected in the letter of 19 May. He queried why one incident could lead to dismissal in this case. In particular, Mr Bannon took issue with the fact that Mrs Crook had continued to rely on the Occupational Health report of 18 February 2013 and suggested that a further Occupational Health assessment should have taken place at which all the details of the claimant's medical history would be available.

 

60. It is relevant to note that at no point in the appeal letter or during the appeal hearing was there any suggestion by the claimant that he had possible autistic traits or was being assessed for autism, although it is the case made by the claimant at this hearing that the respondent failed to carry out a further investigation of the claimant's medical condition which might have led to a diagnosis of Asperger's syndrome sooner.

 

61. Following the appeal Mr Morrison wrote to the claimant on 18 July 2014 indicating that his appeal was not upheld. In relation to the conviction, he indicated:

 

"I do not accept that it is the minor issue you suggest. Both the issue of unlawful discrimination (harassment) and a criminal conviction are mentioned in the NICS Disciplinary Policy as examples of behaviour that might lead to dismissal for gross misconduct and I am satisfied that these issues are serious enough to warrant dismissal".

 

62. He considered the misuse of personal information relating to Ms A and the content of the e-mails sent to her, in particular, discussion of confidential HSENI personnel issues. He indicated that he considered the sharing of sensitive HSENI information another serious breach of trust and integrity. He also noted that although the claimant had suggested he was unwell when the correspondence was written and that elements of the correspondence had been taken out of context, the claimant's PS on the e-mail " even if the result might end up being a P45 ....." suggested to Mr Morrison that the claimant did understand the potential impact of sharing such sensitive information.

 

63. Mr Morrison went on to consider the claimant's allegation that the respondent had not exercised a duty of care towards him. He noted:

 

"I recognised in the additional information provided that you have a medical history of depression, anxiety and ME. I have considered the additional information provided about your treatment and your view that HSENI has a duty of care to you because of your medical history.

 

Having considered the issue I cannot find any clear link between your medical history and the specific actions that have resulted in your dismissal. I cannot see how HSENI, even if it was aware of your medical history, could more fully exercise a duty of care towards a member of staff whose own actions had resulted in unlawful discrimination (harassment), a criminal conviction for doing so and whose actions betrayed the trust of an individual and the organisation in relation to personal and confidential information."

 

64. The claimant was advised of his right to appeal to the Civil Service Appeal Board and he chose to exercise that appeal. The appeal took place ultimately on 14 January 2015.

 

65. In the meantime, the claimant (through his union) had been examined by Dr Brian Mangan, Consultant Psychiatrist. Dr Mangan saw the claimant on 2 October 2014 and produced a medical report, the conclusions of which were as follows. He confirms the history of recurrent depressive disorder and gives this as his diagnosis of the claimant's illness. He went on to say:

 

"I note that even prior to the index offences Mr Watterson had a history of difficulties in social circumstances including social anxiety. Historically he reports difficulties in his adolescence with regard to peer relationships. He had longstanding problems in initiating and maintaining social relationships. It is clear at the time of the index offence that Mr Watterson had difficulties in interpreting Ms A's emotional response to him. In my opinion Mr Watterson has significant autistic traits. I advise that he is assessed by a clinical psychologist to assess whether he suffers from autistic spectrum disorder. In my opinion Mr Watterson's mental state at the time of the index offence is a significant mitigating factor in his actions. Whilst I am of the opinion that he remained capable of rational thoughts throughout this period I believe that his altered mental state was likely to have impaired his judgment."

 

 

66. At the Civil Service Appeal Board hearing in January 2015, Dr Mangan's report was offered to the Board. They refused to accept it on the basis that this report had not been available to the disciplinary panel or the appeal panel throughout the claimant's case. Dr Mangan's report was not shared with the respondent's representative at the CSAB meeting.

 

67. The Civil Service Appeal Board made a finding that the claimant had been unfairly dismissed. Their report is lengthy but is somewhat opaque in its language. They made recommendations in that the allegations and charges needed to be clearly and properly put to the accused and clearly and properly documented. They also indicated that in considering options for sanctions and penalties, the Department should clearly demonstrate and document their consideration of the range of relevant penalties or possible sanctions. They indicated, further, that care should be taken to ensure that there was no confusion or combination of considerations relating to discipline and performance in the determination of penalties and that prior to the determination of the case, the Department should take due care in maintaining a neutral stance in relation to all of the parties concerned. The report did not make it clear exactly what deficiencies in the HSENI disciplinary procedure had been identified. The comment regarding failing to maintain a "neutral stance" may refer to Mr Bannon's criticism of HSENI for allowing a colleague to accompany Ms A to court (at her request), on the day of the court hearing against the claimant when Ms A had to give evidence. The CSAB recommendation was that the claimant should be reinstated.

 

68. Mr Morrison as Chief Executive of the respondent received a copy of this report and decided not to accept the recommendation. In his response to the CSAB, he noted that the claimant had been convicted after a contested trial of a criminal offence of harassment, that the harassment took place at least partially on official premises and that evidence had been given by HSENI at the CSAB hearing of its consideration of the imposition of penalties less than dismissal and the consideration of possible redeployment. He also pointed to the claimant's role in these matters and argued that any compensation due to the claimant should be significantly reduced. The Civil Service Appeal Board, in making their decision regarding compensation, applied a reduction of 60% to the award of compensation to the claimant.

 

69. On 2 April 2015 the claimant was assessed by Dr Joanne Douglas. She made a number of recommendations. Her findings were that:

 

" Colin's behaviour profile meets the diagnostic criteria for an autistic spectrum disorder (DSM - V ICD 10). Colin's particular profile best fits that of Asperger's syndrome which is a sub group of the autistic spectrum".

 

Dr Douglas went on to describe some of the challenges posed by Asperger's syndrome and made comments in relation to how the claimant might be assisted. She noted that:

 

"He finds it difficult to see other people's perspective and to read others and their intent. He has difficulty making the correct connections between things and sometimes comes up with his inappropriate links. He feels persecuted and believes that others generally misunderstand him and dislike him, are against him and want to bring him down. This impacts greatly on his behaviour and is reflected in his day- to-day conversation."

 

70. Evidence was given by the respondent's witnesses that they had only seen Dr Douglas' report as part of the discovery of documents as part of this case. It was agreed that Dr Mangan's report had been furnished to the respondent in early 2015 but the exact date was unclear.

 

The Relevant Law and Submissions

 

71. The relevant law on disability discrimination is to be found in the Disability Discrimination Act 1995 (as amended). In this case the claimant has specifically claimed that the respondent discriminated against him in that it failed in its duty to make reasonable adjustments to take account of his disability. The HSENI conceded that it had been aware of the claimant's depressive illness which it agreed was a disability within the meaning of the legislation. They argued however that they were not aware and did not have notice of the claimant's condition of Asperger's syndrome which was not formally highlighted until October 2014, some three months after the claimant's dismissal and which was finally diagnosed by Dr Douglas in April 2015, some ten months after the claimant's dismissal.

 

72. The relevant legislative provisions are as follows. Section1 of the Disability Discrimination Act 1995 provides that:

 

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

 

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

 

73. Schedule 1 of the Act sets out provisions which supplement Section 1. In particular it specifies that an impairment is "long term" if its effects have lasted at least 12 months, it is likely to last for at least 12 months or it is likely to last for the rest of the life of the person affected.

 

74. Under paragraph 4 of Schedule 1 the impact of day-to-day activities is considered as follows:-

 

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

 

(a)       Mobility;

(b)       Manual Dexterity;

(c)        Physical Co-Ordination;

(d)       Continence;

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

(f)         Speech, hearing or eyesight;

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

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

 

75. Under the Autism Act 2011, the following paragraphs were added:-

 

"(i) Taking part in normal social interaction; or

(j) Forming social relationships."

 

76. The duty to make reasonable adjustments is set out in Article 4 which provides as follows:-

 

"4A(1) where -

 

(1)           A provision, criterion or practice applied by or on behalf of an employer or

 

(2)           Any physical feature of premises occupied by the employer,

 

places the disabled person concerned at a substantial disadvantage in comparison to 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 ...

 

(3)           Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know

 

(a)           In the case of an applicant or potential applicant, that the disabled person concerned is, or may be an applicant for the employment; or

 

(b)           In any case, that the person has a disability and is likely to be affected in the way mentioned in sub-section (1)."

 

Knowledge of disability

 

77. In this case the respondent relied on what is referred to as the "knowledge defence" and submitted that it could not reasonably have known about the diagnosis - much less the symptoms - of Asperger's syndrome which itself did not materialise until almost a year after the claimant's dismissal. Mr McEvoy referred us to Harvey on Industrial Relations and Employment Law ("Harvey") at Section L, paragraph 405 and following. Harvey notes that the wording of s.4A(3) and the question whether an employer could "reasonably be expected to know" means that an employer may be under a duty to make enquiries to establish whether a person is suffering from a qualifying disability. The Disability Discrimination Act Code of Practice: Employment and Occupation at paragraph 5.12 gives an example of an employee who has depression and cries at times at work. If she is disciplined for this without any attempt being made to discover whether the crying is disability related and whether a reasonable adjustment could be made to her working conditions to prevent or alleviate this and the consequent risk of being disciplined, then the employer may be in breach of his duty under Section 4A.

 

78. In Department for Work and Pensions v Alam the EAT had to consider the other test for actual or constructive knowledge of disability. In light of the earlier decision of the tribunal in Eastern and Coastal Kent PCT v Grey [2009] IRLR 429, Lady Smith restated the test for an exemption from the duty to make reasonable adjustments as follows:-

 

"(1) did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in Section 4A(1)?

 

If the answer to that question is: "no", then there is a second question, namely,

 

(2) ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in Section 4A(1)?

 

If the answer to that second question is "no" then the section does not impose any duty to make reasonable adjustments. Thus the employer will qualify for the exemption of any duty to make reasonable adjustments if both those questions are answered in the negative." (See paras 17 and 18 of the judgment).

 

79. Harvey refers to the decision of the Court of Appeal in England and Wales in Gallop v Newport City Council [2014] IRLR 211 where Lord Justice Longmore had to consider the appropriate legal test as to whether an employer had actual or constructive knowledge of its employee's disability. At paragraph 36 of his judgment he indicated that the correct legal test was that:

 

"(i) before an employer can be answerable for disability discrimination against an employee, the employer must have actual or constructive knowledge that the employee was a disabled person; and (ii) that for that purpose the required knowledge, whether actual or constructive, is of the facts constituting the employee's disability as identified in Section 1(1) of the DDA. Those facts can be regarded as having three elements to them, namely (a) a physical or mental impairment, which has (b) a substantial and long term adverse effect on (c) his ability to carry out normal day-to-day duties; and whether those elements are satisfied in any case depends also on the clarification as their sense provided by Schedule 1. Counsel were further agreed that, provided the employer has actual or constructive knowledge of the facts constituting the employee's disability, the employer does not also need to know that, as a matter of all, the consequence of such facts is that the employee is a "disabled person" as defined in Section 1(2). I agree with Counsel that this is the correct legal position."

 

80. The question then arose as to whether the employer was entitled to rely on the opinions expressed by the respondent's Occupational Health Consultants. Longmore LJ noted that as far as the Occupational Health opinions were concerned,

 

"as the opinions were those of doctors, not lawyers, one might expect them to have been focussed on whether, from the medical perspective, the three elements of Section 1 were or were not satisfied. Since, however, OH made no reference to such elements, neither Newport nor the ET could have had any idea whether OH considered (i) that Mr Gallop had no relevant physical or mental impairment at all; or (ii) that he did but its adverse effect on his disability to carry out normal day-to-day activities was neither substantial nor long term, or (iii) that he did, but it had no effect on his ability to carry out such duties. OH's opinion was, with respect, worthless for reasons indicated. Newport had to form its own judgment on whether Mr Gallop was or was not a disabled person; and OH's views on that topic was no assistance to them ...

 

"This may seem a hard result, but I consider it follows from the terms of the legislation. The problem with certain types of disability, or claimed disability, is that it is only when eventually the ET rules on the question that it is known whether the claimant was in fact a disabled person. In the meantime, however the responsible employer has to make his own judgment as to whether the employee is or is not disabled. In making that judgment, the employer will rightly want assistance and guidance from Occupational Health or other medical advisors.

 

"That assistance and guidance may be to the effect that the employee is a disabled person; and, unless the employer has good reason to disagree with the basis of such advice, he will ordinarily respect it in his dealings with the employee. In other cases, the guidance may be that the opinion of the advisor is that the employee is not a disabled person. In such cases, the employer must not forget that it is still he, the employer who has to make the factual judgment as to whether the employee is or is not disabled: he cannot simply rubber stamp the advisor's opinion that he is not." (See paras 40, 42 and 43 of the judgment).

 

81. In the most recent case involving Mr Gallop, Gallop v Newport City Council (UKEAT/0118/BM) (March 2016) his Honour Judge Hand QC (sitting alone) considered whether knowledge held by one individual within the employer organisation could be imputed to the person making the decision to dismiss. He noted,

 

"In my judgment there is no room for imputed knowledge in this context .... an Employment Tribunal when deciding whether or not there has been discrimination by a sole decision maker is not concerned with the motivation, intention and knowledge of others being imputed to the decision maker but with the actual motivation, intention and the knowledge of that decision maker." (See paragraph 59 of the judgment).

 

It is not yet known if this decision will be appealed.

 

82. It was the claimant's case that the respondent had not taken proper steps to investigate the claimant's disability. While it was conceded that the claimant was suffering from depression and the medical certificates which he produced from February 2013 through until the date of his dismissal in June 2014 referred to him having depression, the claimant argued that the respondent had been at fault in not taking reasonable steps to investigate the question of whether or not he suffered from autism or, as the final diagnosis was Asperger's syndrome, to investigate whether he had Asperger's. The claimant relied on the fact that Ms Wright had flagged up the issue of whether the claimant had Asperger's in her letter to the claimant's GP which was disclosed to Dr Beattie in July 2013. He also considered that the respondent was on notice from May 2013 that the claimant had autism from the comments made by his barrister at court and which were recorded by Ms Giboney to Mrs Crook (see para 37 above).

 

83. The respondent's response to this was that they had not formally been told that the claimant had a diagnosis of Asperger's syndrome. Indeed the claimant himself did not have any medical opinion he may have autism until he received Dr Mangan's report in October 2014 at the very earliest; a firm diagnosis of the claimant having Asperger's syndrome was not made until April 2015, after being assessed by Dr Douglas. The respondent effectively pointed to the fact that the claimant himself did not know for sure that he had autism at this time; how then could the respondent be expected to know this? Mrs Crook did not accept that she should have carried out investigations into whether or not the claimant had autism. She said that her understanding from Ms Giboney's email in May 2013 was that claimant was going to have an assessment done of whether or not he had autism and she expected that the union representative would pass a copy of this report to her if in fact the claimant was going to rely on this assessment. She did not however contact the union representative and ask for a copy of any assessment nor did she refer the issue to Occupational Health although Dr Beattie was due to carry out a further report on the claimant in May 2013.

 

The duty to make reasonable adjustments

 

84. The case law in relation to duty to make reasonable adjustments is now well established. The relevant test has been set out by the Employment Appeal Tribunal in the Environment Agency v Rowan [2008] ICR 218 where the tribunal said at paragraph 27 of its judgment:-

 

"In our opinion an Employment Tribunal considering a claim that an employer had discriminated against an employee pursuant to Section 3A(2) of the Act by failing to comply with the Section 4A duty must identify:

 

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

 

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

 

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

 

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

 

In our opinion an Employment Tribunal cannot properly make findings of the failure to make reasonable adjustments under Section 3A(2) and 4A(1) without going through that process. Unless the Employment Tribunal has identified the four matters we have set out above it cannot go on to judge if any of the proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage."

 

85. It is the claimant's case that the provision, criterion or practice applied in this case was that the respondent subjected the claimant to the disciplinary procedure in relation to the incidents of January and February 2013, that it failed to take account of his condition of Asperger's syndrome in the way that he was treated under the disciplinary procedure and that it failed to take account of the claimant's condition in imposing a penalty of dismissal rather than a lesser penalty. It was argued that the respondent should have redeployed the claimant rather than dismissal and that the employer did not make sufficient efforts to try to redeploy him.

 

86. Harvey refers to the decision of the EAT in Nottingham City Transport Ltd v Harvey [2013] EqLR4 where Lord Justice Langstaff noted that although a provision, criterion or practice may as a matter of factual analysis and approach be identified by considering the disadvantage from which an employee claims to suffer and tracing it back to its cause, it is essential at the end of the day that a tribunal analyses the material in the light of that which the statute requires. Harvey was a case where the claimant had been dismissed by reason of alleged misconduct (as it turned out unfairly) and part of his claim was that he should not have been disciplined for these matters due to him suffering from the disability of depression. It was argued that the employer had failed to make a reasonable adjustment to take account of the claimant's disability in the way that the disciplinary procedure was dealt with. This had been the finding of the Employment Tribunal at first instance. On appeal however the employer argued that a one-off flawed disciplinary process could not be said to be the application of "a provision, criterion or practice" as envisaged by the DDA. There was no evidence (they argued) to suggest that the procedure being flawed in the respects identified by the tribunal could have caused any disadvantage to the claimant through being disabled any more than it would to someone who was not disabled, but in respect of whose disciplinary case there had been a failure to make a reasonable investigation or failure to listen to anything that might be said in mitigation.

 

87. Having referred to the case law, Langstaff J continued at paragraph 18 as follows:-

 

"In this case it is common ground that there was no provision that the employer made nor criterion which the employer applied that could be called into question; the issue was the practice of the employer. Although the Act does not define "provision, criterion or practice" and the Disability Rights Commission's Code of Practice deals with the meaning or provisions, criteria and practices by saying not what they consist of but what they include (see paragraph 5.8) and although those words are to be construed liberally, bearing in mind that the purpose of the statute is to eliminate discrimination against those who suffer from a disability, absent provision or criterion there still has to be something that can qualify as a practice. "Practice" has something of the element of repetition about it. It is, if it relates to a procedure, something that is applicable to others than the person suffering the disability. Indeed, if that were not the case, it would be difficult to see where the disadvantage comes in, because disadvantage has to be by reference to a comparator and the comparator must be someone to whom either in reality or in theory the alleged practice would also apply. These points are to be emphasised by the wording of the 1995 Act itself in its original form where certain steps are being identified as falling within the scope to make reasonable adjustments, all of which, so far as practice might be concerned, would relate to matters of more general application than simply to the individual person concerned."

 

88. Looking at the reasoning of the Employment Tribunal in that case, he commented:

 

"a one-off application of the respondent's disciplinary process cannot in these circumstances reasonably be regarded as a practice; there would have to be evidence of some more general repetition, in most cases at least. However, making due allowance for the words used by a tribunal, whose judgments, we must remember, should not be analysed as if they were the finest products of elaborate and accurate legal draughtsmanship, what appears missing is a clear identification of what the practice was, which caused disadvantage that was substantial to the claimant in respect of which there might have been a reasonable adjustment; rather, the paragraph suggests that as a matter of desirability the employer might have behaved by taking into account mitigation and conducting a reasonable investigation.

 

"Given that and our acceptance of the submissions made by Mr Soor, it seems plain to us that the tribunal erred in law by identifying the particular flawed disciplinary process that the claimant underwent as being something that fell within the heading "provision, criterion or practice" and, as Mr Soor points out, as showing that because of his disability those aspects caused a disadvantage over others who were not disabled, when it might seem obvious that a failure to consider mitigating circumstances and the failure reasonably to investigate is likely to cause misery whoever is the victim." (see paras. 20 & 21 of the judgment).

 

89. A similar conclusion had been reached by the Employment Appeal Tribunal in Department for Work and Pensions v Alam UKEAT/0242/09/LA, where the claimant had been disciplined and received a 12 month written warning for leaving work early without permission and in fact, having been refused permission. That was a case where the claimant suffered from depression as a result of which he seemed to lose concentration, lost his temper and sometimes got severe headaches. Lady Smith, giving the judgment of the Court, noted at paragraph 12 that:

 

"The tribunal found that the respondent applied a PCP in relation to the claimant which was "that he should either ask for, and get permission from his line manager before leaving his workplace or receive a disciplinary sanction of a 12 month written warning."

 

"The tribunal's findings in fact would probably support the conclusion that there was a PCP of instituting disciplinary action if an employee failed to get permission to leave work early since that is something which was, without comment, done. We have real difficulty however in accepting that it was open to the tribunal to go on and conclude that there was a PCP that involved not only disciplinary action being instituted but involved the outcome being a written warning, which is the import of paragraph 23 of the judgment ... The issuing of a 12 month written warning was certainly an option but we are not persuaded that the availability of that option amounted to a practice for the purposes of Section 4A(1)(a). The options opened to the respondent were clearly wide ranging (no action, informal response such as advice as to how to behave in the future, a verbal warning, written warning with a stated time limit which could be of varying length, dismissal). It could not, on the findings of fact, be said that the practice of the respondent was to issue written warnings to all employees who therefore left work early without permission to do so."

 

90. She went on to consider the fact that the claimants had been able to articulate mitigatory factors on which he wished to rely at the disciplinary hearing as an indicator that the respondent's practice was to tailor the outcome to the facts of the individual case. She also noted that the decision maker (the claimant's line manager) had specifically said that her decision on the disciplinary matter had only been reached after considering all the facts including those put before her by the claimant at the disciplinary meeting.

 

91. That said, it should also be noted that in the most recent instalment of Mr Gallop's claims against Newport City Council (UKEAT/0118/15/DM), His Honour Judge Hand QC (sitting alone) expressed some reservations about accepting as a matter of principle that a PCP could not be confined to one single event. He noted that whilst he accepted that the word "practice" suggests repetition, he was wary of accepting that it must always be so and equally wary of applying the same approach to the two preceding words "provision" and "criterion". He noted at paragraph 65 of his judgment that "whether anything is either a "provision", a "criterion" or a "practice" seems to me to be less likely to be a statement of principle but rather a fact/context sensitive issue not susceptible to general statements of principle."

REASONS AND DECISION

 

92. It was conceded by the respondent that the condition of Asperger's syndrome and autism constitutes a disability under the Disability Discrimination Legislation given that it is a lifelong developmental condition. The issue in this case was not the nature of the disability; the question was whether the respondent knew or ought reasonably to have known that the claimant was disabled (i.e. insofar as his Asperger's syndrome is concerned) for the purposes of the DDA at all material times, based on the information that was available and on the basis of enquiries it could or should reasonably have made. It is the claimant's case that a reasonable employer would have made reasonable adjustments, for example by treating the incidents involving Ms A other than as an issue of misconduct under the disciplinary procedures and in any event, by imposing a sanction other than dismissal.

 

93. The question in this case is, what the employer knew or ought reasonably to have known? It was agreed that the claimant did not have a diagnosis of having Asperger's syndrome until April 2015. The earliest date when there was an assessment that he had "substantial autistic traits" was when Dr Mangan issued his report in October 2014, some months after the claimant's dismissal. The claimant however asserted that the respondent knew at an earlier stage that the question of him suffering from autism had been raised and asserted that the respondent should have made further enquiries with a view to establishing whether or not he did in fact suffer from autism. The respondent contended that this was unreasonable, that it was for the claimant to establish the nature of his disability and that Mrs Crook quite reasonably waited for the claimant to produce any information which he had in relation to this issue. The first mention of the claimant having possible autistic tendencies was in Elaine Wright's letter to his General Practitioner in April 2013. That letter referred to the claimant currently considering an assessment to explore the possibility of having Asperger's disorder, but no comment was made on the matter by Ms Wright. It is also relevant to note that she sent this letter to the claimant's GP, who in turn copied it to Dr Beattie of the respondent's Occupational Health Service. Dr Beattie however did not raise the issue of whether the claimant may have Asperger's Syndrome in his subsequent report to the respondent in September 2013 but simply referred to the claimant's fitness to return to work. He did not give any view - nor it appears was he asked to comment - on whether the claimant's illness constituted a disability under the DDA 1995.

 

94. The email sent by Donna Giboney to Mrs Crook in May 2013 after her attendance at Court (at a preliminary hearing on the harassment charge) referred to the claimant's barrister mentioning to the court that the claimant "is on the autism spectrum". The issue was therefore indirectly flagged up to the respondent at that time but as noted above, Mrs Crook did not raise the question of the claimant suffering from autism in any of her contacts with the claimant's union representative. Her attitude was that if the claimant was being assessed in relation to autism, she would expect the claimant to share any such assessment with the respondent. When no such medical report was provided, she assumed that it was no longer an issue.

 

95. When Mr Bannon made his submissions to the respondent on the claimant's behalf in advance of the disciplinary meeting, he referred to and included assessments from Cherryvalley Health Centre (the claimant's general practice) and from Cedar Health Foundation. It is not clear whether Mr Mulvenna's report of 11 April 2014 was also included. That report however (see para 40 above) refers to the claimant having been assessed on a scoring system for autistic tendencies and having come out well below the level where it was considered further assessment would be necessary.

 

96. It is also relevant to note that at no point during the disciplinary procedure or during the claimant's sick absence from February 2013 onwards did the claimant specifically raise with the respondent - either directly or through his union representative - the possibility that he had Asperger's syndrome or was on the autism spectrum. It was asserted by the claimant's representative that the respondent was aware of the claimant's behaviour and that he suffered from depression. It is clear that up to and including the time the decision was made to dismiss the claimant, there was no direct evidence of the claimant suffering from autism. Dr Mangan's report was only provided to the respondent after the Civil Service Appeal Board procedure was completed. Mr Morrison was unable to say in cross examination when the report from Dr Mangan had been received by management of the respondent. He confirmed however that at the Civil Service Appeal Board hearing while he knew a report was being referred to by the union, the Appeal Board refused to accept it and management were not aware of it. No copy of the report was provided to management at that time. As far as Dr Douglas' report is concerned, Mr Morrison confirmed that he had received this from the Civil Service Appeal Board with their compensation letter in May 2015. Mr Morrison also said that he first saw Dr Mangan's report on receipt of the claimant's witness statements in January 2016 in preparation for the hearing although he acknowledged that the claimant's father had sent a letter to the respondent (the Department of Finance and Personnel) on 28 August 2015 with a copy of that report.

 

97. The issue for us to decide is whether the respondent should have taken further steps to clarify the extent of the claimant's disability in terms of autism prior to dismissal. As stated above, the claimant had not raised the matter directly with the respondent or suggested directly to them that he was being assessed for autism. It is not clear to us whether Mr Mulvenna's report was ever disclosed either to Occupational Health or to the respondent, given that it was addressed in the first instance to the claimant's GP. The question in our view is whether the respondent, whose only information in relation to the claimant's possible autism was his behaviour towards Ms A (specifically the content of his emails to her) and his demeanour at suspension together with the email from Donna Giboney to Mrs Crook on 24 May 2013, was thereby put on notice of possible autism which it ought to have investigated? We take account of the most recent decision of the EAT in Gallop v Newport City Council in March 2016 where the court considered that the tribunal must concern itself not only with the motivation, intention and knowledge of others being imputed to the decision maker but with the actual motivation, intention and knowledge of that decision maker. The only evidence which we know for sure that Mrs Crook (who was the dismissing officer and therefore the decision maker) had at the date when she dismissed the claimant was her assessment that the claimant had not grasped the seriousness of the situation when suspended, his actions towards Ms A (see paras 29 - 31 and 37 - 39 above), the knowledge that the Magistrates Court had been told in May 2013 that the claimant was on the autism spectrum and that an assessment was being sought from a psychiatrist. She had not pursued this with the claimant's union representative and it had not been raised with her by the union representative either. Ms Giboney however obviously thought it was significant enough to tell Mrs Crook about it and to note that the respondent had nothing about this on the claimant's file.

 

98. Applying the decision of the Court of Appeal of England and Wales in an earlier decision in Gallop v Newport City Council [2013] EWCA Civ 1583 (see paragraphs 78 - 79 above), we note that the required knowledge, whether actual or constructive, is of the facts constituting the employee's disability, rather than an assessment of his condition. Those facts can be regarded as having three elements to them according to the Court of Appeal, namely; (1) a physical or mental impairment which has; (2) a substantial and long term adverse effect on; (3) the claimant's ability to carry out day-to-day activities.

 

99. We are conscious that in this case the claimant had throughout asserted that his behaviour in February 2013 was out of character and had been brought about by the fact that he had stopped taking his anti-depressant medication. We can appreciate that it is difficult for an employer on occasion to be clear as to what is the actual cause of certain behaviours. We also appreciate that Mrs Crook is not a doctor and could not have been expected to identify symptoms of Asperger's Syndrome in the claimant. However, taking account of the fact that the respondent is a part of large organisation with considerable resources and that the respondent would have been able to make enquiries as to how autism might impact on an individual's behaviour, we consider it would have been appropriate for Mrs Crook as Head of Human Resources and Finances at HSENI to have made further enquiries given that she clearly thought there was something unusual about the claimant's behaviour to Ms A in early 2013. It is not clear to us, for example, if the respondent's HR department ever made enquires with DETI (its parent department) or with its own Occupational Health Service as to whether they might obtain any specialist assessment of the claimant's condition. A consultant's report should have given clarity and would have been worth the outlay. Even for Mrs Crook to have clarified with the union if the claimant had indeed gone for psychiatric assessment or whether there had been any outcome to that would at least have clarified whether or not it was something she needed to take into account.

 

100. We appreciate that, as Longmore LJ set out in Gallop, this may seem a hard result. In this particular case it seems to us that the respondent never actually raised the question as to whether or not the claimant may be disabled even in the context of him suffering from depression, although his depression had caused a number of absences from work over the years. Mrs Crook was aware that the claimant had a criminal prosecution pending and she ultimately became aware of the outcome of that. The focus of all the occupational health reports was to clarify if and when the claimant would be fit to take part in the disciplinary process. The disciplinary process did not take place for some months after the outcome of the criminal appeal was known. In those circumstances, and given that the claimant continued to submit sick lines , we find it surprising that the possibility of the claimant being a disabled person had not occurred to the respondent's HR department, even if the basis for the claimant being disabled was initially seen as him suffering from depression rather than Asperger's syndrome. It does not appear that the question was ever asked whether the claimant's depression may have impacted on how he behaved, although the facts of his behaviour were known.

 

101. Having made a finding that the respondent ought reasonably to have made enquiries which could have provided clarity on the claimant's disability (i.e. Asperger's syndrome), the question then remains as to whether the respondent failed in its duty to make reasonable adjustments for the claimant under Article 4A of the DDA (as amended)? We must consider, in light of the Rowan decision, whether the respondent applied a provision, criterion or practice to the claimant which placed him at a substantial disadvantage in comparison to other persons who were not disabled. We are conscious of the case law and in particular the decision which we have referred to above of Nothingham City Transport Ltd v Harvey. It is the claimant's case that, in light of him suffering from Asperger's syndrome, the respondent should not have dealt with him under the disciplinary procedure but should instead have dealt with him in some other way and in any case, should not have dismissed him.

 

102. In this case the claimant asserts that subjecting him to the disciplinary procedure constitutes a provision, criterion or "practice". We are conscious of the view of Langstaff J in Harvey and the more recent comments of Judge Hand QC in the most recent Gallop decision. We are of the view that this case must be seen in the context of its facts. The respondent in this case decided to follow its disciplinary procedure, although it was aware that the claimant had a history of depression. While it is true to say that Mrs Crook did consider medical reports on the claimant's depression when deciding to dismiss him, she did so on the basis that he had not been suffering from mental health/depression problems at the time of the index events, so it was not considered a mitigating factor. Mr Morrison, dealing with the appeal, said he could see no clear link between the alleged misconduct and the claimant's health. Further, when the CSAB recommended reinstatement of the claimant, Mr Morrison decided against reinstatement, although no reference was made to the claimant's mental health. We consider that the way the respondent addressed the claimant's situation constituted a practice, in that they unthinkingly dealt with the matter as a disciplinary investigation, as they would have done in any similar situation where the employee was not disabled.

 

103. It was suggested that the disciplinary procedure was flawed and indeed the Civil Service Appeal Board pointed to some procedural defects in it. Had we found that the claimant's claim of unfair dismissal was in time, we also had concerns about the way the procedure was dealt with.

 

104. The claimant suggests that his disability should be such a powerful mitigating factor that it effectively wipes out the misconduct. This seems to us to go too far. The misconduct attributed to the claimant was serious. He had breached the civil service code on confidentiality and had been convicted of the criminal offence of harassment. If a non-disabled person had behaved in the way that the claimant did, there was no evidence adduced before us to suggest he would not have been treated in the same way as the claimant i.e. subjected to the disciplinary process. To suggest that the claimant should not have been disciplined or dismissed in these circumstances means that the claimant would effectively have been treated more favourably because of his disability. In this situation it seems to us that it is the duty of an employer to weigh up not just its responsibility and duty of care to the claimant but also its duty of care to other employees, in particular Ms A in this case. The respondent did consider the information which it had at the time in relation to the claimant's medical condition, but its crucial error was in considering that the claimant had not been unwell or disabled at the time of the harassment events.

 

105. Had the respondent made further enquiries about the claimant's condition and thus established that the claimant had Asperger's Syndrome, this may well have influenced how they conducted the disciplinary hearing and weight would surely have been to the claimant's disability as a mitigating factor. While Mrs Crook considered that the claimant could not return to work alongside Ms A and we accept her rationale for that, she did not in May 2014 make any concerted efforts to see if the claimant could be redeployed elsewhere. Such efforts as she made (and she produced rather scrappy notes of this) were made in February 2015, after the CSAB recommendation. She simply said in her memo she thought it unlikely that DETI would accept the claimant back, but did not show that she had sought to establish if there was any suitable vacancies available either in DETI or in another department. Mr Bannon noted the high number of AO posts throughout the NICS and queried whether the respondent could not have found a post somewhere for the claimant. Mrs Crook also dismissed the possibility of placing the claimant on a disability moves list, which could have been more realistic if it had been established in May 2014 that the claimant was disabled. We consider that the approach of the respondent therefore put the claimant at a substantial disadvantage compared to someone who did not suffer from Asperger's syndrome. We cannot say with certainty that the claimant would not have been dismissed, but it is possible that, had his condition been identified sooner and taken into account as a mitigating factor, a lesser disciplinary penalty would have been imposed if a suitable position for the claimant had been found elsewhere.

 

106. We make this finding with some caution: NICS is one of the largest employers in Northern Ireland and has considerable resources and scope for redeployment of staff. This is not the case for all employers and this decision should not be taken as applying to all cases. The duty to make reasonable adjustments applies to what is reasonable "in all the circumstances of the case" (s.4A(1)(2) of the DDA 1995 as amended).

 

107. While we consider it appropriate to make an award to the claimant for injury to feelings, we are also conscious that neither the claimant nor his union took any steps to notify the respondent directly of their suspicion that the claimant may have autistic traits, up to and including the date of the appeal. That said, and as we have set out above at paras 97-99, the employer did have knowledge of the facts of the claimant's condition although not its diagnosis and this should have prompted them to make further inquiries which would have established that the claimant had Asperger's syndrome and would have informed how they treated the claimant at the disciplinary stage. Their failure to make these enquires and adjust the disciplinary procedure in our view constitute a breach of the duty to make reasonable adjustments. We do not consider that this is a case for a large award for injury to feelings, and we are conscious that the respondent has already paid compensation to the claimant for loss of earnings. We consider that an award at the lower end of the Vento range would be appropriate and accordingly we order the respondent to pay to the claimant the sum of £6000 for injury to feelings.

 

108. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 21 - 24 March and 21 April 2016, Belfast.

 

 

Date decision recorded in register and issued to parties: