Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS: 1170/15

2197/15

 

 

 

CLAIMANT: Cheryl Suzanne Campbell

 

 

RESPONDENTS: 1. Department of Justice

2. Derek Kennedy

3. Dermott Fullerton

4. Wendy Long

 

 

 

DECISION

 

The unanimous decision of the tribunal is that the claims against each of the four respondents are dismissed.

 

 

Constitution of Tribunal:

Vice President: Mr N Kelly

 

Members: Mr J Law

Mr F Murtagh

 

Appearances:

The claimant was represented by Mr P Girvan MLA.

The respondents were represented by Mr M Potter, Barrister-at-Law, instructed by The Departmental Solicitor's Office.

 

Background

 

1. The claimant is employed in the Northern Ireland Civil Service. At the relevant times she was employed as an EOI in the Forensic Science Department of the Department of Justice ('FSNI').

 

2. At the relevant times the claimant had been diagnosed as suffering from fibromyalgia and peripheral neuropathy. There was no dispute that these two conditions constituted disabilities for the purposes of the Disability Discrimination Act 1995 ('the 1995 Act').

 

3. In the first tribunal claim ( Case Reference No: 1170/15) the claimant alleged unlawful harassment and discrimination on the grounds of disability contrary to the 1995 Act.

 

4. In the second tribunal claim ( Case Reference No: 2197/15) the claimant referred to English legislation which does not apply in this jurisdiction. However, it appears to have been properly a claim under the 1995 Act. She alleged unlawful victimisation as a result of her earlier tribunal claim. The alleged unlawful victimisation was not particularised but may have referred to her treatment in relation to sick absence.

 

5. The respondents deny that they at any stage had unlawfully harassed, victimised or otherwise discriminated against the claimant contrary to the 1995 Act.

 

Relevant law

 

6. Meaning of 'discrimination'

3A(1) For the purposes of this Part, a person discriminates against a disabled person if —

 

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and

 

(b) he cannot show that the treatment in question is justified.

 

(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

 

(3) Treatment is justified for the purposes of sub-section (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

 

(4) But treatment of a disabled person cannot be justified under sub-section (3) if it amounts to direct discrimination falling within sub-section (5).

 

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

 

(6) If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty.

Meaning of 'harassment'

 

3B(1) For the purposes of this Part, a person subjects a disabled person to harassment where, for a reason which relates to the disabled person's disability, he engages in unwanted conduct which has the purpose or effect of —

 

(a) violating the disabled person's dignity, or

 

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

 

(2) Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect.

 

  Employers: discrimination and harassment

 

4(1) It is unlawful for an employer to discriminate against a disabled person —

 

(a) in the arrangements which he makes for the purpose of determining to whom he should offer employment;

 

(b) in the terms on which he offers that person employment; or

 

(c) by refusing to offer, or deliberately not offering, him employment.

 

(2) It is unlawful for an employer to discriminate against a disabled person whom he employs —

 

(a) in the terms of employment which he affords him;

 

(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;

 

(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or

 

(d) by dismissing him, or subjecting him to any other detriment.

 

(3) It is also unlawful for an employer, in relation to employment by him, to subject to harassment —

 

(a) a disabled person whom he employs; or

 

(b) a disabled person who has applied to him for employment.

 

(4) Sub-section (2) does not apply to benefits of any description if the employer is concerned with the provision (whether or not for payment) of benefits of that description to the public, or to a section of the public which includes the employee in question, unless —

 

(a) that provision differs in a material respect from the provision of the benefits by the employer to his employees;

 

(b) the provision of the benefits to the employee in question is regulated by his contract of employment; or

 

(c) the benefits relate to training.

 

(5) The reference in sub-section (2)(d) to the dismissal of a person includes a reference —

 

(a) to the termination of that person's employment by the expiration of any period (including a period expiring by reference to an event or circumstance), not being a termination immediately after which the employment is renewed on the same terms; and

 

(b) to the termination of that person's employment by any act of his (including the giving of notice) in circumstances such that he is entitled to terminate it without notice by reason of the conduct of the employer.

 

(6) This section applies only in relation to employment at an establishment in Northern Ireland.

 

Employers: duty to make adjustments

4A(1) Where -

 

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

 

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

 

(2) In sub-section (1), ' the disabled person concerned' means -

 

(a) in the case of a provision, criterion or practice for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, an applicant for that employment;

 

(b) in any other case, a disabled person who is -

 

(i) an applicant for the employment concerned, or

 

(ii) an employee of the employer concerned.

 

(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 that person has a disability and is likely to be affected in the way mentioned in subsection (1).

 

Unlawful discrimination

 

7. The proper approach for a tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof in relation to discrimination has been discussed several times in case law. The Court of Appeal re-visited the issue in the case of Nelson v Newry & Mourne District Council [2009] NICA -3 April 2009. The court held:-

 

"22 This provision and its English analogue have been considered in a number of authorities. The difficulties which tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been. The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a tribunal to go through a two-stage decision-making process. The first stage requires the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination. Once the tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof. In McDonagh v Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

 

23 In the post- Igen decision in Madarassy v Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the tribunal's task in deciding whether the tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen. The court stated:-

 

'The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient matter from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; 'could conclude' in Section 63A(2) must mean that 'a reasonable tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent in contesting the complaint. Subject only to the statutory 'absence of an adequate explanation' at this stage, the tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.'

 

That decision makes clear that the words 'could conclude' is not be read as equivalent to 'might possibly conclude'. The facts must lead to an inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be 'presumed'.

 

24 This approach makes clear that the complainant's allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal's approach must be informed by the need to stand back and focus on the issue of discrimination."

 

8. In S Deman v Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal considered the shifting burden of proof in a discrimination case. It referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment 'without more' was not sufficient to shift the burden of proof. At Paragraph 19, Lord Justice Sedley stated:-

 

"We agree with both counsel that the 'more' which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be forwarded by a non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred."

 

9. In Laing v Manchester City Council [2006] IRLR 748, the EAT stated at Paragraphs 71 - 76:-

 

"(71) There still seems to be much confusion created by the decision in Igen v Wong. What must be borne in mind by a tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting in the burden of proof simply recognises the fact that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the tribunal on the balance of probabilities that certain treatment had been by reason of race.

 

...

 

(73) No doubt in most cases it would be sensible for a tribunal to formally analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case. As I said in Network Road Infrastructure v Griffiths-Henry, it may be legitimate to infer he may have been discriminated against on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected. But at what stage does the inference of possible discrimination become justifiable? There is no single answer and tribunals can waste much time and become embroiled in highly artificial distinctions if they always feel obliged to go through these two stages.

 

...

 

(75) The focus of the tribunal's analysis must at all times be the question whether they can properly and fairly infer race discrimination. If they are satisfied that the reason given by an employer is a genuine one and does not disclose either conscious or unconscious racial discrimination, then that is an end of the matter. It is not improper for a tribunal to say, in effect, 'there is a real question as to whether or not the burden has shifted, but we are satisfied here that even if it has, the employer has given a fully adequate explanation as to why he believed or he did and it has nothing to do with race'.

 

(76) Whilst, as we have emphasised, it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so. There is no purpose in compelling tribunals in every case to go through each stage."

 

Procedure

 

10. These claims were case managed. Detailed directions were originally given at a Case Management Discussion on 13 January 2016. Those directions provided for the interlocutory procedure, for the exchange of witness statements and for a hearing, originally fixed for 24 - 27 May 2016.

 

11. Shortly before that hearing, on 27 April 2016, the claimant disclosed to the respondents and to the tribunal that she had just been diagnosed as being on the autism spectrum. The Clinical Psychologist who, according to the claimant, had diagnosed that condition, had not yet prepared her written report and that report was therefore not available to either the respondents or the tribunal. The claimant sought what she described as reasonable adjustments in relation to the forthcoming hearing.

 

12. The claimant's requests in that respect were unrealistic. She asked firstly for an intermediary to rephrase questions put to her in cross-examination in a way that she could understand, a live video link (the purpose of that was not explained), to have the public gallery cleared, including cleared of the individual named respondents, and to have a private hearing. Those requests were considered at a Case Management Discussion on 11 May 2016 which could be classified as a ' ground rules' hearing which appears to be the current terminology for such a hearing.

 

13. The tribunal considered the provisions of the most recent copy of the Equal Treatment Bench Book which had been issued by the Judicial College in 2013. No one in that Judicial College or in the wider judiciary had sent this tribunal a copy of the updated 2013 edition or had alerted the tribunal to its existence. It is not clear how the tribunal was expected to know of its existence or to apply it. However, in this case the tribunal was alerted to its existence by the recent appeal to the Court of Appeal in Galo v Bombardier Aerospace NICA 2016.

 

14. In this case, the claimant had worked since 1992 in the Northern Ireland Civil Service. She had been promoted to EO1 and, at the time of the tribunal proceedings, was still working at EO1 level in the Civil Service, apparently successfully. She was also represented by Mr Girvan MLA. There was no apparent need for an interpreter/intermediary in addition to Mr Girvan MLA, or for a live video link, or for a private hearing. The claimant was capable of functioning at management level in a demanding job and appeared capable in most cases of understanding questions and answers and capable of communicating with others. The tribunal must recognise that the respondents were entitled to hear the evidence against them and to participate fully in the hearing. Their counsel was entitled to cross-examine the claimant and to put the respondents' case properly. As an experienced counsel, he could be trusted to do so as sensitively as the occasion demanded, without unnecessary restriction. If any particular difficulty emerged in relation to a question, or in relation to anything else in the course of the hearing, that could be dealt with as it arose.

 

15. At the Case Management Discussion on 11 May 2016 the respondents sought a postponement. At the suggestion of a postponement, the claimant displayed a degree of distress and her representative argued strongly that the matter should proceed. The Vice President directed that the hearing then still fixed for 24 - 27 May 2016, should not be postponed. However, the claimant was directed to exchange the written report on autism as soon as it was available. For the purposes of the Case Management Discussion, the tribunal made the assumption that the written report, when it emerged, would indicate that there had been a diagnosis of autism.

 

16. At that stage (the Case Management Discussion on 11 May 2016) the Galo decision was not yet available. Mr Girvan MLA was given a copy of the Bench Book and of the EAT decision in Rachman v NHS Professionals. A further ground rules hearing was directed to take place at the start of the substantive hearing on 24 May but no further directions were required at that point.

 

17. Subject to that further ground rules hearing, the following directions were made during the Case Management Discussion on 11 May 2016:-

 

(i) There was some criticism of the claimant's witness statement. It was not a normal statement containing the claimant's evidence-in-,chief in relation to the issues which had been agreed. I directed that if it was necessary the claimant could give additional oral evidence-in-chief before being cross-examined. That was something that would apply to all other witnesses.

 

(ii) The claimant was reminded that if she did not understand any question she could advise the tribunal and the question would be reframed by the Employment Judge.

 

(iii) Mr Potter would provide the claimant and her representative with a list of written cross-examination questions by 23 May 2016. Additional questions in cross-examination would inevitably be required as evidence progressed and as the hearing progressed. Those additional questions would be dealt with in the course of the hearing. The Employment Judge would ensure that the claimant understood those questions.

 

(iv) The claimant could if she wished bring a representative from Autism NI or from PEAT. If that representative felt that something needed further explanation, they could raise a hand and the Employment Judge would then intervene.

 

(v) There would not be a private hearing and the individual respondents would not be excluded from the hearing.

 

(vi) There were separate waiting rooms available in any event for the periods before the hearing commenced and after the hearing.

 

(vii) Given the distress shown by the claimant at the prospect of seeing the individual respondents in person while giving evidence, some screens would be erected to obstruct her view of the individual respondents (and theirs of her) but those screens would not obstruct the view between the respondents' counsel and the claimant.

 

(viii) Rather than prolong an apparently fruitless discussion about resolving the size of the bundles, the DSO helpfully agreed to provide four copies of the entire documentation. That comprised of two lever arch folders for each tribunal member. Attempts to agree the bundle were discontinued.

 

18. The claimant produced a written report from a clinical psychologist dated 24 May 2016. It stated, inter alia, that the claimant disclosed symptoms consistent with a diagnosis of Autistic Spectrum Disorder. The report did not state how severe that autism was or in what percentage of the general population the claimant was placed as a result of that autism.

 

In particular, the report indicated that she had difficulties understanding humour and that she had difficulties empathising with others. It stated she had limited understanding of typical social situations and relationships.

 

These difficulties and limitations were not quantified and there was no indication of the claimant's position on the autistic spectrum. There was no specific indication that the claimant suffered from either mild, moderate or severe autism.

 

19. The written medical report on the claimant's autism was not available before the start of the scheduled hearing on 24 May. Furthermore, Mr Girvan MLA would be unavailable on the second day of the three day hearing. He had been summoned unexpectedly to attend the Assembly in relation to the appointment of the new Executive. In the circumstances, the hearing was postponed to 22, 23 and 24 June 2016.

 

20. The Court of Appeal had issued its decision in Galo by the time of the postponed hearing. The tribunal has carefully considered that Court of Appeal decision and has followed it. However, the tribunal must also bear in mind the overriding objective set out in Regulation 3 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 and the need to ensure fairness to both parties, while maintaining the flexibility and speed appropriate for a tribunal system.

 

21. At that postponed hearing, the tribunal heard evidence from the claimant who was cross-examined and re-examined. On her behalf a Mrs Joan Berry gave evidence. She was a friend of the claimant and had not at any stage been a work colleague. She had no direct knowledge of her working conditions or of any of the claims of unlawful discrimination. She was not cross-examined. Two other witnesses had provided witness statements on behalf of the claimant, ie the claimant's husband and a Ms Karen McMullan. These two witnesses did not attend, did not swear their statements and were not cross-examined. Their statements, to the extent that either of them were relevant to the matters under consideration, could therefore carry very little weight.

 

22. On behalf of the respondents the following witnesses gave evidence, swore their statements and were cross-examined:-

 

(i) Wendy Long, the claimant's line manager;

 

(ii) Derek Kennedy, the Assistant Director (Grade 6);

 

(iii) Dermott Fullerton, the claimant's countersigning officer (Deputy Principal); and

 

(iv) Olwen McCormick.

 

Relevant findings of fact

 

23. The claimant had started work in the Civil Service on 5 October 1992 and since that date had been promoted from Administrative Assistant (lowest grade) to EO1 (middle management grade).

 

24. She was posted to the FSNI within the Department of Justice on 5 January 2014.

 

25. At that stage and until shortly before the hearing of this case, she had been diagnosed as suffering from fibromyalgia and peripheral neuropathy. Those matters were accepted as disabilities by the first-named respondent. There had been no diagnosis at that stage of autism. The claimant, although she had an autistic child, was not aware that she had been suffering from autism. Her doctors had not diagnosed autism and it would, in the opinion of the tribunal, have been unreasonable to expect her line managers to have diagnosed that condition. Furthermore, it has to be remembered that autism is a lifelong condition and that the claimant at this stage had already worked in the Civil Service for a significant period of time and had progressed from Administrative Assistant to Executive Officer 1. The only disabilities notified to her employer and known to the claimant were those of fibromyalgia and peripheral neuropathy.

 

26. In the course of the hearing the claimant raised several matters which had not formed part of either claim before the tribunal. They were therefore not properly before this tribunal as claims of unlawful discrimination. For example, she claimed that she had not been given a car parking space quickly enough in her new location following her transfer to FSNI. She had had to wait a few weeks. She also complained that she had not been given her own personal computer immediately on transfer and that for a few weeks she had to use a computer which had previously been used by someone else. She also complained that she had not been given a permanent work station for some weeks. She complained that she had not immediately been given her own computer password. She complained that she had not been given adequately clear objectives.

 

27. While these complaints were not within the jurisdiction of the tribunal, the tribunal concludes that they are in any event completely unfounded. There is nothing unusual in a brief delay in allocating parking spaces, personal computers, computer passwords or permanent desks when transferring into an organisation, particularly an organisation which is undergoing a process of change. There was no suggestion that the claimant at any stage had been left without either a computer or a desk at any point or that there had in any way been a detriment of any significance. There was, for example, no evidence that a perceived lack of adequately clear objectives had in any way impinged upon the claimant. The claimant for example knew at all stages what the relevant time limit was for the particular project which caused her difficulty, ie the capacity project. In any event there was absolutely no evidence that any of these matters had been in any way caused by, or related to the disabilities known to the respondents. In short, even if these matters had been within the jurisdiction of the tribunal, there is no prima facie evidence of unlawful discrimination which would be sufficient to shift the burden of proof on to any of the respondents.

 

28. The claimant's claims in her evidence to this tribunal were confused. That may well have been due to her recently diagnosed autism or to pressures in her own life or even simply to the normal pressures of litigation. It is difficult to set out relevant incidents or to deal with her allegations in any logical sequence. In any event, her complaints appear to relate in particular to certain specific matters.

 

29. Firstly, the complainant complains about a meeting which took place on 24 July 2014. That concerned the capacity project. The claimant took a leading role in that project and reported to Mrs Long and ultimately to Mr Fullerton and Mr Kennedy. It is clear that Mr Kennedy had chaired this particular meeting about the project. This occurred at a time when the first deadline for completion of the project had been missed. Several staff were present. Those other staff took an active role in the course of the meeting, speaking and contributing to the discussion. The claimant did not do so. She kept her head down throughout the meeting, writing. It appears that she was writing notes. Mr Kennedy and Mr Fullerton, and indeed the claimant in cross-examination, were all clear that the claimant had not been actively engaging in the course of the meeting.

 

30. Mr Kennedy asked her at one point in the meeting ' Are you listening to me?'. Given the evidence, the tribunal concludes that this had been a reasonable reaction on the part of Mr Kennedy who had been concerned at the claimant's general lack of engagement. At this point, the claimant had a leading role in the project. The tribunal further concludes, on the balance of probabilities, that this had not been done either abruptly or aggressively. Mr Kennedy had simply been concerned that the claimant had not been taking part in the meeting. Given her leading role in the project, his concern was unsurprising.

 

There is no evidence of any detriment in this matter. This had been a reasonable intervention by Mr Kennedy and had not been either an insult or an act of aggression. It could not reasonably have been taken as such. Furthermore, while it well may be that the claimant's apparent detachment during this meeting was caused to some extent by her autism, the claimant did not know that autism was a factor. Her doctors at that stage did not know that autism was a factor and it would have been entirely unreasonable for Mr Kennedy in the course of this meeting to have diagnosed this particular condition and to have put in place some adjustment to deal with it. Mr Kennedy was only aware of two disabilities. There was no evidence from the claimant, or indeed from anyone else, that the two known disabilities, fibromyalgia or peripheral neuropathy, would have been relevant in any way to what had happened in the course of this meeting.

 

31. The second allegation was that Mr Kennedy had ' coerced' the claimant into taking a particular personality test known as the Myers Briggs test. That is a test which grades personality types. It appears not to be in dispute that this allegation emerged when in 2014 the claimant approached Mr Kennedy to tell him that she was considering doing a MSc in business improvement. Mr Kennedy was in some way involved in that course. As part of that discussion, Mr Kennedy discussed the Myers Briggs test as a management tool. He had stated that this test would be touched on as part of the course. It is also clear, after listening to the claimant's cross-examination and to Mr Kennedy's cross-examination, that the claimant had not been directed or in any way instructed to take this test. It had simply been mentioned as a part of the general discussion between the claimant and Mr Kennedy about the MSc and what the relevant course would cover. It is also clear that the claimant then decided of her own volition to undertake that test in her own time. She had achieved a particular score described as ENT J which indicated a high intuitive score. The tribunal has no idea what that means but it is also clear that it was the same type of score as that achieved by Mr Kennedy.

 

32. The claimant appears to react badly to ordinary events and ordinary discussions and to read into those events or discussions the worst possible interpretations. Those interpretations appear to become fixed ideas in her own mind. That may well be part of her autism condition but again the discussion between Mr Kennedy and the claimant appears to have been a perfectly ordinary discussion and no detriment whatsoever is apparent. Again, it would in any event have been unreasonable to expect Mr Kennedy to have diagnosed autism, particularly since the result of the Myers Briggs test, which he did not request, showed that he and the claimant had the same type of score.

 

33. Another allegation which appears to have emerged from this discussion between Mr Kennedy and the claimant indicates again the claimant's unusual reaction to perfectly ordinary incidents. It appears in the course of this discussion that Mr Kennedy, when describing the implications of a ' high intuitive score', described the ability to ' conceptualise and solve problems quickly'. He had used an analogy of people swimming across shark infested water from a desert island to a ' club med' resort. After listening to the claimant and Mr Kennedy the tribunal concludes that it was clear that Mr Kennedy had simply been trying to illustrate that certain individuals, including the claimant, could instinctively navigate a safe way from one island to another through the metaphorically shark infested waters. The claimant appears to have taken this use of the metaphor as some form of insult. At that stage, the claimant had notified a Welfare Officer that she was undergoing tests for autism but she had asked for those tests to be kept confidential and Mr Kennedy simply did not know that autism was even a possibility. Even if he had known, while the use of metaphors might then have been unwise, there had been no detriment at all and certainly no intention to impose any detriment because of disability or for any disability-related reason. The tribunal does not understand how the claimant could elevate all of this, in her own mind, to an allegation of unlawful discrimination.

 

34. Another allegation raised by the claimant was that she had in some way been excluded from a workplace social event where there had been a birthday cake. She appears to allege that she only found out about the event on Facebook later at home. She stated that she had not been invited to the event and that she felt alienated by this. She stated that Mrs Long had told her that since the claimant was on a diet she didn't bring her a bit of cake, and that she hadn't been asked around for that reason. Mrs Long's evidence was that the claimant had been invited to the social event and that she had attended. She denied telling her that she didn't bring her a slice of cake because she was on a diet. Mr Kennedy's evidence was clear that he did not organise or invite anyone to any social event and had not been involved.

 

35. The claimant's allegation in this respect seems improbable. She alleged that Mr Kennedy, a Grade 6 and a senior civil servant, had actively excluded her from a minor social event amongst the administrative staff within the office. That seems highly unlikely. It seems much more likely than not that Mr Kennedy was correct to state that he had no involvement in such matters. Mrs Long was clear and convincing where she stated that the claimant had both been invited and had attended the social event. The tribunal on the balance of probabilities concludes that the claimant's allegation in this respect was entirely incorrect and that it was perhaps another illustration of how her perception of reality and her reaction to ordinary everyday matters has become distorted.

 

36. The claimant alleged that an inquiry into her use of flexi time was an act of unlawful discrimination. That enquiry would have been made on or about 29 July 2014 and concerned work that she was claiming for under flexi-time before 8.00 am and in the evenings. The tribunal concludes that such inquiries would have been a routine and ordinary event where flexi-time had consistently been claimed before 8.00 am and in the evenings. There had been no detriment. The enquiry had been unrelated to any disability. There is nothing at all in any of this which could amount to a prima facie case of unlawful discrimination.

 

37. Another allegation concerned a ' workshop'; in other words, a meeting, in August 2014. The claimant alleged that Mr Fullerton had attended that meeting and that she had not been told in advance that he would be attending. Again the tribunal can see nothing wrong in Mr Fullerton attending this meeting and nothing unusual in the claimant being not informed in advance of his attendance. Mr Fullerton was after all the claimant's countersigning officer and his attendance would have been a normal part of his duties. He would not have required the permission of the claimant to take part in the meeting. Again there is nothing in any of this which could establish a prima facie case of unlawful discrimination. It is yet again another example of the claimant's inability to see ordinary events as they are.

 

38. The claimant also alleged that in or about September 2014, Mrs Long had suggested that it would not be a good time for her to embark on a further education course. It is clear from the claimant's own evidence, particularly her evidence in cross-examination, that at that time she had been undergoing significant difficulties in her personal life and that any such intervention by Mrs Long would not have been unusual in any way. It certainly would not have been an act of unlawful discrimination or in any way badly intended. The tribunal is satisfied that Mrs Long was simply acting as a caring manager. Again there is nothing in any of this that could amount to a prima facie case of unlawful discrimination.

 

39. The claimant alleges that there was a discussion periodically of her moods in the latter part of 2014. Again it is clear that the claimant had been undergoing significant personal stress at this stage and there can be nothing unusual or remarkable in any discussion by management of her moods. Her management were simply taking into account her difficulties and seeking to assist where possible.

 

40. The claimant also alleges that Mrs Long made an inappropriate reference to disabled persons. She alleged that in or about October 2014, Mrs Long had stated ' if it was up to me I wouldn't take a disabled person and I have interviewed and refused disabled interviewees'. At that stage, Mrs Long would have known that the claimant was disabled and that she suffered from fibromyalgia and peripheral neuropathy. Mrs Long had been an experienced manager. It is highly improbable that Mrs Long would have made any such remark at all, much less to someone whom she knew was disabled and to someone who she knew had an autistic child. Mrs Long, in her evidence, indicated that this may have emerged from a conversation in which she discussed making reasonable adjustments for a member of staff who had been looking after a sick child. That individual had moved, as a reasonable adjustment, to a more suitable post. The claimant also alleged that Mrs Long had described working with autistics as ' weird'. Mrs Long stated that she had never worked with anyone who had been diagnosed as autistic and that she did not make any such remark.

 

41. Having listened carefully to Mrs Long give evidence and indeed to the claimant the tribunal unanimously concludes, on the balance of probabilities, that these remarks were not made by Mrs Long and that the allegations made by the claimant are entirely without foundation.

 

42. Another allegation made by the claimant was that she had in some way been restricted from attending medical appointments. At one point, she appeared to allege that she had been refused permission to attend an appointment with a psychiatrist because that appointment would clash with an internal meeting. There appears to be no corroborative evidence of any such allegation. It appears to the tribunal to be in any event highly improbable that any such action would have been taken and it was completely denied by the respondents. The claimant also alleged that she had been restricted to a two hour period in taking medical appointments. This again seems to be a situation where her management had attempted to assist her and where that attempt to assist her had been misinterpreted by the claimant and had been regarded by the claimant as an attack upon her. After listening to the claimant, Mrs Long, Mr Fullerton and Mr Kennedy, the tribunal unanimously concludes that what had happened was that the claimant had been advised that she did not need to take annual leave to attend medical appointments. All she had to do was to ' clock in' to work and that she could take a reasonable period of time during her working day to attend medical appointments as required. That reasonable time would not be deducted from annual leave. It would not require her to ' clock out' and would therefore not have resulted in any adverse impact on her flexi-time. It had been a generous adjustment in relation to the claimant. The claimant chose to regard this for some reason as a restriction upon her ability to attend medical appointments. She appears still not to be able to understand the significant efforts that management had made to assist her.

 

43. The claimant made a range of complaints about, principally, Mrs Long in relation to the capacity project in which she had been primarily engaged. She alleged, for example, that she had been told at one point that the work had to be ' 100% correct'. That does not seem to be in dispute and equally does not seem to be a legitimate cause of complaint. As the claimant herself indicated, this had been important work. It affected others. Accuracy had been required. The tribunal cannot see how the claimant has chosen to regard such a remark as in any way either a detriment or as unlawful discrimination in relation to or on the grounds of disability.

 

44. The claimant also alleged that she had been placed under undue pressure to complete this project. However, it appears that the project had its time-limit extended on two occasions and that on each occasion the claimant had indicated that she had been happy with that extension of time. She did not at any stage indicate that she had required assistance or that she had needed further staff to complete that project. It also seems plain that Mrs Long had assisted her in doing that work while at the same time maintaining her own work. Again the claimant seemed to regard the fact that Mrs Long attended to her own work as well as assisting the claimant with hers, as an additional cause for complaint. She alleged that Mrs Long, in her role as the officer responsible for communications, had devoted part of her time to the preparation of the in-house magazine. Since that work on the in-house magazine had been subject to deadlines, and since Mrs Long had been directly responsible for the completion of that work, the tribunal again cannot see how the claimant, in her own mind, regards that as a proper cause for complaint on her part. The claimant also alleged that Mrs Long had indicated to her that she may not get leave during Christmas in 2015. That was at a point where the time-limit for the capacity contract had been extended twice and where the project had still not been completed. Mrs Long had merely indicated that if the project were not completed, it was unlikely that either the claimant or Mrs Long would get leave during the Christmas break. That reference was to additional leave over and above the ordinary public holidays over Christmas and the New Year. There had been no suggestion, at any stage, that the claimant would have been required to work on Christmas Day and equally no suggestion from the claimant that she had thought that this might have been the case. There was nothing in any of this which amounts to a prima facie case of unlawful discrimination or even to a detriment.

 

45. The claimant alleged that Mrs Long had spoken to her in a loud condescending and threatening manner during a telephone conversation on 16 January 2015 when she was off on sick leave. Mrs Long denies that allegation. The only person who might have overheard that conversation, ie the claimant's husband, did not attend to give evidence. There is a consistent pattern in this case of the claimant misunderstanding and misinterpreting ordinary exchanges and ordinary incidents. On the balance of probabilities, this seems to be another example.

 

46. A further ground of complaint from the claimant was that after it had been used by someone else, Mr Fullerton had used an abbreviation of her name, ie ' Chryl', in ordinary office use. She accepted that she had used an abbreviation of his name, ie Dermie. She had looked up that abbreviation of her name and had formed the conclusion that this was in reality a medieval word ' Churl' and she regarded it as an insult. That is denied by Mr Fullerton. It seems to the tribunal highly improbable that anyone would stumbled on a medieval word and would have chosen to use it as an insult. It seems much more probable that this was part of ordinary office life and no more than the casual use of an abbreviation. The claimant for whatever reason chose, sometime after the event, to regard it a way she now clearly regards it. Again, there is nothing in any of this approaching a prima facie case of unlawful discrimination.

 

 

Decision

 

47. It is clear that the claimant, in addition to her known disabilities of fibromyalgia and peripheral neuropathy, was at the relevant times on some undetermined point on the autistic spectrum. That said, the claimant had been able to operate successfully for much of her career in the Civil Service, laterally at EO1 level. She had experienced difficulties in her post in FSNI. However she had experienced significant personal difficulties at this time. She made frequent reference in her evidence to the fact that she is performing well in her current post, following her transfer from FSNI, and that does not sit easily with her concurrent statement that she is significantly disabled and that she needed an interpreter to answer questions in the tribunal.

 

48. The 1995 Act provides for claims where the employer knew or reasonably could have known of a particular disability. While the claimant might have disclosed to the Welfare Officer that she was being tested at one point for autism, she did so on the basis that the Welfare Officer would not disclose it further. She did not disclose to any of her line managers that she was or might be autistic at the relevant times. This only emerged shortly before the tribunal hearing and appears to have been a complete surprise to everyone, not least to the claimant.

 

49. It is employing an artificially high standard to expect line managers to diagnose a medical condition where the claimant is not aware of that condition and where the claimant's own doctors are not aware of that condition, particularly where the claimant's doctors are conducting investigations including MRI scans and MS tests. It is also clear that the claimant at the relevant times was suffering serious personal stress because of issues in her own personal life.

 

50. Having heard the evidence and having carefully considered what has been said by the claimant and by the respondents' witnesses, the tribunal unanimous conclusion is that the claimant's line managers were not and could not have been aware of the claimant's autistic condition. Where they were aware of the claimant acting oddly at times, they had reasonably and properly put that behaviour down to the claimant's own personal difficulties which she had talked about at length with Mrs Long. She had assured Mrs Long that she felt better coming into work because it had provided a relief from her difficulties in her personal life. There had been no reason for anyone in the line management chain to go behind what she was saying and to spontaneously and in amateurish fashion to have diagnosed autism. The two conditions of which line management were aware would not have raised any issue in relation to her cognitive ability or her work performance. Certainly there was no medical evidence to that effect before the tribunal.

 

51. The only reasonable adjustment which the claimant had sought on her transfer to FSNI was a car parking space near work. That was granted fairly shortly after she transferred to FSNI and it had in any event been agreed immediately on request. The issue is whether the adjustment was ' reasonable'; not whether it was implemented absolutely immediately on request. These issues have to be judged against a background of reality.

 

52. In short, the claimant had been treated sympathetically and properly by her line managers in FSNI. She did not appreciate any of this. However, the tribunal concludes that her perception of reality has become somewhat distorted and that it is entirely unreasonable. The capacity contract for which she had been primarily responsible had been extended twice and had still not been finally completed when she went on sick leave in January 2015. She did not return to FSNI. She had been offered every assistance from Mrs Long to complete that work.

 

53. She had not been subjected to anything that could properly be regarded as a detriment. Furthermore, the treatment of which she complained was not related to any disability known to the respondents or to any disability which could reasonably have been known to the respondents.

 

54. The claimant's claim of victimisation (1170/16) has not been adequately explained. It may refer to an offer of a temporary post in the Courts and Tribunals Service while on sick leave. That offer was withdrawn when it appeared that the claimant was unfit to take the temporary post. It may refer to her pay during sick leave. However, it appears from the papers that the contractual pay provisions had been applied. There was no prima facie case of any unlawful discrimination in this regard or in relation to her treatment during sick leave.

 

55. The claimant's claims of unlawful discrimination, harassment and victimisation contrary to the 1995 Act are all dismissed.

 

 

 

 

 

 

 

Vice President

 

 

Date and Place of Hearing: 22 - 24 June 2016, Belfast

 

 

Date decision recorded in register and issued to parties: