Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2191/15

 

 

 

CLAIMANT: Wayne Quigley

 

 

RESPONDENT: Department for Communities

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant's claim is not well-founded. Accordingly that claim is dismissed.

 

Constitution of Tribunal:

Employment Judge: Employment Judge Buggy

Members: Mr A Burnside

Mr A White

 

Appearances:

The claimant was represented by Mr S Doherty, Barrister-at-Law, instructed by Worthingtons Solicitors.

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

 

1. The claimant is a Northern Ireland civil servant. Since July 2005, he has been working in the Child Support Agency, in Great Northern Tower ("the Tower"), Great Victoria Street, Belfast.

 

2. The Child Support Agency was a constituent part of the Department for Social Development ("the DSD"). Accordingly, when these proceedings were commenced, the DSD was the respondent. The functions of the former DSD have recently been taken over by the Department for Communities ("the DfC"). Accordingly, the DfC has been substituted as the respondent to these proceedings. However, at all times which are material for the purposes of these proceedings, the claimant was working within the DSD. Accordingly, with a view to minimising avoidable complications, we refer, throughout this Decision, to the DSD rather than to the DfC. In this Decision, any reference to "the Department" is usually a reference to the DSD.

 

3. The claimant is an Administrative Officer, and has held that grade of post ever since he started working for the Child Support Agency.

 

4. In these proceedings, the claimant makes a claim under the Disability Discrimination Act ("the DDA"). He now makes only one claim, which is a claim in respect of an alleged failure on the part of the respondent to comply with a duty to make a reasonable adjustment. In that connection, the claimant invokes the protection of the DDA on the basis that he is a disabled person, within the meaning of the Act, because of degenerative disc disease ("DDD"); the DSD accepts that proposition.

 

5. The claimant has the following other conditions:

 

(1)           dyslexia.

 

(2)           attention deficit disorder.

 

(3)           vertigo and

 

(4)           substantial hearing impairment.

 

6. In the present context, a "disabled person" means a disabled person within the meaning of the DDA. Our understanding is that it is agreed between the parties (although only for the purposes of these proceedings) that:

 

(1) If the claimant had no other relevant impairments, he would still be a disabled person, because of his DDD.

 

(2) If the claimant had no other relevant impairments, he would still be a disabled person, because of his dyslexia.

 

(3) If the claimant had no other relevant impairments, he would still be a disabled person, because of attention deficit disorder.

 

(4) If the claimant had no other relevant impairments, he would still be a disabled person, because of vertigo.

 

(5) If the claimant had no other relevant impairments, he would still be a disabled person, because of the hearing impairment.

 

7. Until 8 February 2014, the claimant and his family were living at Jocelyn Street, Belfast, which is within approximately two miles of the Tower. At that time, they moved out to live at Culross Drive, Dundonald, which is about 10 miles from the Tower. They have lived at Culross Drive ever since.

 

8. At times other than rush-hour times, the journey-time between Culross Drive and the Tower is approximately 20 minutes. During rush-hour periods, the same journey frequently takes as long as one hour.

 

9. Continuously since the spring of 2014, the claimant has been troubled with DDD. Because of that problem, the claimant was absent from work from 15 May 2014 until November 2014. In June 2014, Dr Clive Beattie, of the Northern Ireland Civil Service's Occupational Health Service ("OHS") saw the claimant and, as a result, produced a report ("the Report") for DSD. According to the "Case Summary" section of the Report:

 

"[Mr Quigley] has been absent since 15/05/14 due to neck and back pain. Investigations show that he has degenerative disease of his spine. He has had a poor response to conservative management and has been referred for specialist assessment. ...

 

He remains unfit at present. His main problem is [the] time it takes to travel to and from work. The prolonged sitting exacerbates his symptoms. He is able to manage during the day at work as he can move about during the day. ...

 

If a transfer closer to home could be accommodated an earlier return to work is likely. It is difficult to predict his response to current treatment and when a return to his current post may be possible."

 

In the Report, the following question was posed:

 

"Any underlying medical condition affecting this employee's performance or attendance at work [?]".

 

In the Report, Dr Beattie answered that question in the following terms:

 

"There is significant evidence of an underlying medical condition which does adversely impact on his performance or attendance".

 

The Report also contained the following query:

 

"Whether there are any adjustments to the work tasks or environment that would help facilitate rehabilitation or an early return to work and the duration of any adjustments".

 

The Report's response to that query was: "See summary".

 

10. Soon after the Report was provided, the claimant asked the Department to transfer him to some post based at a location nearer to his new home, on the basis that (in view of the comments in the Report regarding the negative consequences of lengthy journeys to and from work) the Report supported the proposition that such a transfer would be required as a reasonable adjustment. No such transfer ever occurred.

 

11. The claimant continued to be on sick leave until November 2014. He returned to work during that month. He has not been absent from work for any lengthy period since then.

 

12. Throughout the period beginning in November 2014, and ending in August 2015, the claimant's taxi fares, to and from work, were reimbursed by the Department for Employment and Learning ("DELNI") pursuant to its "Access to Work Scheme". The monthly cost of those fares is between £400 and £500.

 

13. Because of the claimant's "other" disabilities (his disabilities other than DDD), the DSD made various modifications to the claimant's working conditions and environment. Those modifications included, and continue to include, the following:

 

(1)           sheltered office space,

 

(2)           no telephone work,

 

(3)           micro breaks and,

 

(4)           work that involves only one task at a time.

 

14. At all material times, the claimant worked on a part-time basis. He works five days per week, Monday to Friday, beginning at 1.30 pm and ending at 5.30 pm. The Department made it clear to the claimant that it would be willing to vary his starting and/or finishing times. For family care reasons, the claimant is unwilling to change the start time or the finishing time of his day's work.

 

15. The claimant made it clear to the Department that he would be willing to be downgraded to Administrative Assistant level if that would help him to get the transfer which he was seeking. (See paragraph 10 above).

 

The legislation

 

16. Section 4(2) of the DDA makes it unlawful for an employer to discriminate, within the meaning of the Act, against a disabled person whom it employs:

 

"(a) in the terms of employment which [it] affords him;

 

(b) in the opportunities which [it] affords him for ... a transfer, ... or receiving any other benefit;

 

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

 

(d) by ... subjecting him to any other detriment".

 

17. Section 4A of the Act imposes a duty upon an employer, in some circumstances, to make some adjustments. A breach of that duty constitutes "discrimination" within the meaning of Section 4(2) of the Act.

 

18. Section 4A of the DDA provides as follows:

 

"(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 subsection (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)."

 

19. The provisions of subsections (1) and (2) of section 18B of the Act are also relevant in the present context. Subsections (1) and (2) provide as follows:

 

"(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to—

 

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

 

(b) the extent to which it is practicable for him to take the step;

 

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

 

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

 

(e) the availability to him of financial or other assistance with respect to taking the step;

 

(f) the nature of his activities and the size of his undertaking;

 

(g) where the step would be taken in relation to a private household, the extent to which taking it would—

 

(i) disrupt that household, or

 

(ii) disturb any person residing there.

 

(2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments—

 

(a) making adjustments to premises;

 

(b) allocating some of the disabled person's duties to another person;

 

(c) transferring him to fill an existing vacancy;

 

(d) altering his hours of working or training;

 

(e) assigning him to a different place of work or training;

 

(f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;

 

(g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person);

 

(h) acquiring or modifying equipment;

 

(i) modifying instructions or reference manuals;

 

(j) modifying procedures for testing or assessment;

 

(k) providing a reader or interpreter;

 

(l) providing supervision or other support.

 

...

 

The claim

 

20. According to the claimant, throughout the period beginning in June 2014 and ending on 24 August 2015 (the date on which these proceedings were presented), the Department failed to make a reasonable adjustment in his case, by failing to transfer him, within a reasonable period after receiving the Beattie report of June 2014, to a post within one of the relevant areas of choice (as defined locations in the next paragraph below) and/or by failing to take adequate steps with a view to achieving such a transfer. That is now the sole claim in this case.

 

21. In the present context, the relevant areas of choice are the three Northern Ireland Civil Service geographical work areas respectively known as Stormont, Netherleigh and Rosepark. (Those are locations to which the claimant wished to be transferred).

 

The time-limit

 

22. It seems to us that there may well be an issue as to whether this claim has been brought within the relevant primary time-limit. (See Matuszowicz v Kingston Upon Hull City Council [2009] EWCA Civ 22). The Department has taken a pragmatic approach in relation to that matter and has not contended that this tribunal is deprived of jurisdiction because of time-limit issues. Even if this claim was not brought within the relevant primary time-limit, we are not deprived of jurisdiction to entertain it because, in our view, it is just and equitable to do so, having had regard, in particular, to the fact that the Department has suffered no prejudice as a result of any delay in bringing the claim (as distinct from suffering prejudice because the claim is brought at all).

 

The issues

 

23. From the summer of 2014 onwards, until the commencement of these proceedings, DSD, as a matter of policy, acted as though a transfer of the claimant, to one of the relevant areas of choice, would be a reasonable adjustment within the meaning of Section 4A of the DDA. However, since the commencement of these proceedings, the Department has not accepted that it was under any legal duty to make such an adjustment.

 

24. As already noted (at paragraph 4 above), the Department accepts that the claimant's DDD makes him a disabled person within the meaning of the Act.

 

25. In relation to the claimant's claim, other key actual or potential legal issues are
as follows:

 

(1)           Did the Department apply a relevant provision, criterion or practice ("a PCP")?

 

(2)           Did the application of that PCP place the claimant at a substantial disadvantage in comparison with persons who are not disabled?

 

(3)           If so, did the DSD come under a duty to take steps with a view to achieving a transfer of the claimant to a suitable post within one of the relevant areas of choice?

 

(4)           If the Department did indeed come under such a duty, did it comply with that duty?

 

(5)           At all or at any relevant times, did the DSD know that, because of his DDD, the claimant was likely to be placed at a substantial disadvantage because of the relevant PCP? If, at any such time, the Department did not actually know that, could it reasonably have been expected to have known that?

 

26. Issue (1), as set out in the paragraph 25 list, is not a disputed issue. Our understanding is that the parties are in agreement that the DSD did indeed apply a relevant PCP, and that that PCP consisted of the requirement that the claimant carry out his work duties at the Tower (instead of transferring him to a suitable post based at a work location much closer to his home).

 

27. Issue (5), as set out in the paragraph 25 list, arises from the terms of subsection (3) of section 4A. (See paragraph 18 above). The DSD does not seek to escape liability in respect of this claim on the basis of issue (5). Instead, the Department realistically accepts that, from June 2014 onwards, it had sufficient relevant knowledge, or it had the means to acquire sufficient relevant knowledge, to such an extent that it cannot rely upon the subsection (3) defence.

 

28. Accordingly, in these proceedings, we are left with only three of the issues which were listed at paragraph 25 above: Issues, (2), (3) and (4).

 

29. To that list of issues, we now add another two. Below, we refer to those additional issues as issues (6) and (7) respectively.

30. At this point, it is convenient to set out the provisions of section 17A(1B) of the
Act:

 

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

 

31. Issue (6) is the question of whether the provisions of section 17A(1B) have the effect of reversing the burden of proof in respect of issue (2). (It will be recalled that issue (2) is the issue as to whether the imposition of the relevant PCP placed the claimant at a substantial disadvantage in comparison with appropriate comparators).

 

32. In respect of issue (6), the positions of the parties are as follows:

 

(1) The claimant contends that section 17A(1B) has the effect of reversing the burden of proof in respect of issue (2).

 

(2) The DSD rejects that proposition.

 

33. Issue (7) is the question of whether the provisions of section 17A(1B) have the effect of reversing the burden of proof in respect of issue (3), as set out at paragraph 25 above.

 

34. Our understanding is that the Department does accept that the onus of proof is indeed reversed in respect of issue (3). Therefore, issue (7) is an undisputed issue.

 

35. Accordingly, we are left only with the following disputed issues:

 

(a) issue (2)

 

(b) issue (3)

 

(c) issue (4) and

 

(d) issue (6)

 

The facts

 

36. During the course of this hearing, we received evidence from many witnesses. We also saw a considerable number of documents. In arriving at our ultimate conclusions in this case, we took account of all of the relevant aspects of that evidence. In deciding the key issues in this case, we found the following evidence to be of considerable significance:

 

(1) The oral testimony of the claimant and of Dr Clive Beattie.

 

(2) Dr Beattie's June 2014 report and Dr Ian Ryans' report of June 2016.

 

37. At paragraphs 38 to 56 below, we set out various findings of fact which are relevant to the issues which we have determined. (In order to minimise avoidable duplication, and in the interests of readability, we have also set out various other findings of fact elsewhere in this Decision).

 

38. We had reservations about the reliability of some aspects of the testimony of the claimant relating to his symptoms. In arriving at that conclusion, we have had regard to the claimant's demeanour and manner of giving evidence and we have in particular had regard to the following:

 

(1) As already noted, for family reasons, the claimant is very keen to obtain a transfer to one of the relevant areas of choice.

 

(2) As Dr Beattie made clear, the relevant medical complaints (the complaints which provide the basis for the argument that the relevant transfer would be a reasonable adjustment) are subjective complaints in that their accuracy cannot be verified through tests.

 

(3) We have noted the matters referred to at paragraphs 50-53 below.

 

39. The parties were agreed that Dr Beattie was an expert witness. It seemed to us that he was a careful and conscientious witness.

 

40. We have no reason to doubt the professionalism or credibility of Dr Ryans.

 

41. The key contents of Dr Beattie's June 2014 report have been set out or referred to elsewhere in this decision. (See paragraph 9 above).

 

42. During the course of his oral testimony:

 

(1) Dr Beattie told us that, when he examined the claimant in June 2014, the relevant symptoms, as described by the claimant, were neck pain and stiffness in his neck. He told us that, in his opinion, sitting in a car or being stationary would exacerbate the claimant's relevant symptoms. He stated that moving would help resolve those symptoms; or there should at least be some improvement as a result of moving.

 

(2) Dr Beattie told us that he thought that the claimant would be able to carry out all necessary neck and shoulder exercises while being a passenger in a taxi. He thought that, if the claimant could do the relevant exercises, in the taxi, the journey time, in relation to the exacerbation of symptoms, was probably not relevant.

 

43. We note that the question of whether neck and shoulder exercises would help was a question which was not explored at all during Dr Beattie's examination of the claimant in June 2014, or in the report which he provided soon afterwards. (Incidentally, Dr Beattie could not justly be criticised for that situation, because the question of what would help, if lengthy journey times continued, seems to have been raised for the first time during the course of Dr Beattie's oral testimony in these proceedings).

 

44. Dr Ryans' Report was dated 6 June 2016. It consists of seven paragraphs.

 

45. The first two paragraphs are as follows:

 

"The above gentleman is a registered patient in my practice and I have access to his medical records including his hospital investigations.

 

Mr Quigley has a history of neck pain. In 2014 he was confirmed to have disc degeneration at C5/6 level. His pain at that time was causing him recurring headaches".

 

46. The third, fourth and fifth paragraphs of the Ryans Report refer to the claimant's general history of ill-health and do not appear to be particularly relevant to the issues which are of significance in the context of this claim.

 

47. The sixth and seventh paragraphs of the Ryans Report are as follows:

 

"With regards to travelling in the car, it is likely that Mr Quigley will have increase in his neck pain and headaches with prolonged sitting and in my opinion [it] is likely that carrying out simple exercises, by moving his neck, would assist with easing these symptoms. He also has difficulty with muscular weakness and fatigue and he has indicated to me that this is aggravated by prolonged car journeys.

 

On the balance of probabilities it is likely that travelling in excess of 20 minutes will increase the gentleman's level of neck pain and discomfort".

 

48. We see no real conflict between the views which are expressed in the Ryans Report and the views which were expressed to us by Dr Beattie in his oral testimony. However, to the extent, if any, that there is such a conflict, we consider that the views of Dr Beattie are more convincing, especially in light of the fact that those views were expressed during the course of lengthy sworn oral testimony.

 

49. The sixth and seventh paragraphs of the Ryans Report are the key paragraphs of that Report:

 

(1)           At paragraph 6, Dr Ryans expresses the view that it is likely that the claimant "will have increase in his neck pain and headaches with prolonged sitting".

 

(2)           At paragraph 6, Dr Ryans also expresses the opinion that it is "... likely that carrying out simple exercises, by moving his neck, would assist with easing the symptoms". We note that Dr Ryans does not there express any view as to the extent to which the neck exercises would so assist. He has not there expressed any opinion as to whether, for example, such neck exercises would only minimally assist, or whether they would assist by eliminating, or nearly eliminating, the neck pain.

 

(3)           At paragraph 7 of his Report, Dr Ryans also refers to the claimant's assertion that his muscular weakness and fatigue is aggravated by prolonged car journeys. However, Dr Ryans does not there indicate that, in his own opinion, prolonged journeys do indeed aggravate the claimant's muscular weakness and fatigue. (Instead, he merely repeats what the claimant has told him).

 

(4)           At paragraph 7 of the Report, Dr Ryans expresses the view that "it is likely" that travelling in excess of 20 minutes "... will increase [the claimant's] level of neck pain and discomfort". We note that Dr Ryans does not there express any view as to the extent to which the relevant level of neck pain and discomfort is likely to be thereby increased.

 

50. When the claimant was examined by Dr Beattie in June 2014, the symptoms upon which he was then focussing were "neck and back pain".

 

51. At sub-paragraph 6 of paragraph 7.4 of the claim form, the claimant's assertions in relation to the relevant symptoms were set out in the following terms:

 

"6. The Claimant has immense difficulty travelling to and from work and would suffer from pain, temporary paralysis and discomfort". [Our emphasis]

 

52. At paragraph 6 of his witness statement in these proceedings, the claimant discusses his relevant symptoms, in the context of the journey-time in travelling to and from work, in the following terms:

 

"Unfortunately as a result of my conditions, specifically to Degenerative Disc Disease (DDD), I find it extremely difficult and painful to sit for prolonged periods of time. I have been suffering from this disease from 2000, however was only diagnosed in 2014. It causes me great discomfort when sitting. I have a tendency to drag my right leg. I feel vibrations in my arms and legs and tightness down [the] back of my head into my neck and back. I suffer fatigue and have issues with loss of balance and involuntary Pseudoathetosis in arms and legs". [Our emphasis]

 

53. We consider that the assertions referred to at paragraphs 51 and 52 constitute exaggerated accounts of the effects, upon the claimant, of long journeys. In that context:

 

(1) We note that Dr Beattie was of the opinion that the only potential adverse consequences of a lengthy journey would be an increase in the claimant's symptoms of neck pain and discomfort.

 

(2) Neither Dr Beattie nor Dr Ryans has provided any support for the proposition that the relevant pain or discomfort was at the "extreme" ends of the difficulty or pain spectrums.

 

54. Since June 2014, the claimant and the DSD have engaged in a variety of lengthy internal processes and dialogues in respect of the claimant's contention that he should be transferred to one of the relevant areas of choice. However, none of those interactions, and none of those dialogues, has had any substantial effect upon the outcome of the claimant's transfer request. The only tangible outcome of that transfer request is as follows:

 

(1)           He was a top priority applicant in respect of any suitable transfer vacancy occurring, in respect of DSD posts, within the relevant areas of choice, during the relevant period.

 

(2)           In respect of any suitable transfer vacancy becoming available in any other (non-DSD) Northern Ireland Civil Service post within any of the relevant areas of choice, within the relevant period, he had priority immediately after disability transfer requests emanating from within the relevant Department (the Department in which the vacancy occurred).

 

55. Throughout the period from November 2014 until the present day, no suitable transfer vacancy for the claimant (at AO or AA level) has become available in any of the relevant areas of choice. In our view, for the foreseeable future, it is unlikely that a suitable transfer vacancy, within one of the relevant areas of choice, will be available for offer to the claimant.

 

56. Having such high priority on waiting lists makes no practical difference if, within the relevant period, no suitable transfer vacancies occur in respect of the relevant areas of choice.

 

Submissions

 

57. We wish to pay tribute to the high standard of the arguments which were made on behalf of the parties, on both sides of this case. (Details of some of those arguments are mentioned elsewhere in this Decision.)

 

58. During the course of those arguments, our attention was drawn to the following judgments:

 

Environment Agency v Rowan [2008] IRLR 20

 

Royal Bank of Scotland v Ashton [2011] ICR 632

 

Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265

 

Secretary of State for Work and Pensions (Job Centre Plus) and Others v Wilson UKEAT/0289/09/DA)

 

Chief Constable of South Yorkshire Police v Jelic [2010] IRLR 744

 

In arriving at our conclusions in this case, we have paid due regard to the principles which are set out in those judgments, and also in the other judgments to which we have referred elsewhere in this Decision.

 

Our conclusions

 

59. We now list the disputed issues again:

 

Issue (2) Did the requirement that the claimant was to work at the Tower place him at a substantial disadvantage in comparison with appropriate comparators?

 

Issue (3): If issue (2) is resolved in favour of the claimant, did the DSD come under a duty to take steps with a view to achieving a transfer of the claimant to a suitable post within one of the relevant areas of choice?

 

Issue (4): If the Department did come under such a duty, did it comply with that duty?

 

Issue (6): Do the burden of proof provisions of section 17A(1B) of the DDA apply in relation to issue (2)?

 

Issue (6)

 

60. For convenience, we deal with issue (6) first.

 

61. Our conclusions in relation to issue (6) are set out at paragraphs 62 - 70 below.

 

62. This section 4A claim will succeed only if the tribunal decides both issue (2) and issue (3) in favour of the claimant.

 

63. As already noted above, the parties are agreed that the effect of section 17A(1C) is that the burden of proof is reversed in respect of issue (3). However, according to Mr Doherty, the burden of proof provisions of subsection (1C) of section 17A also apply in the context of the resolution of issue (2).

 

64. Section 17A(1B) was enacted for the purpose of implementing the requirements of Article 10 of the Employment Framework Directive (Council Directive 2000/78/EC).

 

65. The concepts of direct and indirect discrimination are set out in Article 2 of the 2000 Directive. The requirement of "reasonable accommodation for disabled persons" (the rough equivalent of the reasonable adjustments duty) is separately set out in Article 5. The latter duty was clearly regarded, by the framers of the Directive, as being a separate and distinct concept from the concept of discrimination.

 

66. Paragraph 1 of Article 10 of the Directive provides as follows:

 

"Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment".

 

67. Accordingly, it is clear that the burden of proof provisions of Article 10 apply only in respect of direct and indirect discrimination.

 

68. Furthermore, paragraph (31) of the preamble to the Directive is in the following terms:

 

"(31) The rules on the burden of proof must be adapted when there is a prima facie case of discrimination and, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought ..."

 

We note that the focus in paragraph (31) is upon "discrimination" and that it makes no reference to any reversal of the burden of proof in the context of claims of any failure to make or provide "reasonable accommodation".

 

69. In Project Management Institute v Latif [2007] IRLR 591, Elias P made the following comments in respect of the GB equivalent of section 17A(1B):

 

"... [We] very much doubt whether the burden shifts at all in respect of establishing the provision, criterion or practice or demonstrating the substantial disadvantage. These are simply questions of fact for the tribunal to decide after hearing all the evidence, with the onus of proof resting throughout on the claimant".

 

We respectfully agree with that conclusion.

 

70. Against that background, and for those reasons, we conclude that, in establishing whether the relevant PCP placed the claimant at a substantial disadvantage in comparison with appropriate comparators, the onus of proof continues to be upon the claimant. Accordingly, issue (6) has been resolved in favour of the respondent.

 

Issue (2)

 

71. Next, we deal with issue (2). That is the issue as to whether the application of the relevant PCP placed the claimant at a substantial disadvantage in comparison with appropriate comparators.

 

72. It will be recalled (see paragraph 26) that the parties are agreed that the relevant PCP was the requirement that the claimant work at the Tower.

 

73. The next issue (2) sub-issue relates to the identification of the appropriate comparators. The parties were not in agreement on that sub-issue. In our view, the appropriate comparators are all those Northern Ireland civil servants, who were based in DSD during all or part of the relevant period, who were not disabled, and who:

 

(a) did not have to spend more than approximately 20 minutes travelling to work, and/or travelling from work, or

 

(b) who did have travel-to-work or travel-from-work journeys in excess of 20 minutes, but who either:

 

(i)         did not experience any pain or discomfort while doing so, or

 

(ii)        only had that experience quite rarely.

 

74. The next issue (2) sub-issue is as follows: In the context of section 4A(1), what does "substantial" disadvantage mean?

 

75. In our judgment, in subsection 1(1) of the Act, the word "substantial" has the same meaning as it has in section 4A(1). Subsection (1) of section 1 sets out part of the definition of "disability" for the purposes of the Act. According to that subsection:

 

" ... 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". [Our emphasis].

 

76. As is now very well known, in the context of section 1(1), the word "substantial" has been judicially defined, in case law, as being synonymous with anything which is more than minor or trivial.

 

77. In our view, it is very unlikely that the legislator intended the same word ("substantial"), to have different meanings in section 1(1) and in section 4A(1) respectively.

 

78. Against that background, and for those reasons, we have concluded that, in the context of subsection (1) of section 4A, a substantial disadvantage occurs if the disadvantage is more than minor or trivial.

 

79. On the basis of the claimant's testimony, we are satisfied that his trips to and from work often lasted for much longer than 20 minutes, and that, during each working month of the relevant period, several of those journeys lasted for approximately one hour.

 

80. On the basis of the claimant's oral testimony, in light of the oral testimony of Dr Beattie, and having had regard to the written reports of Dr Beattie and Dr Ryans, we are satisfied that, whenever the claimant's journey to or from work lasted for longer than about 20 minutes in duration, he experienced intermittent pain and/or discomfort which was more than mild or trivial in intensity.

 

81. In our view, because of the findings of fact which are set out at paragraphs 79 and 80 above, the substantiality aspect of the "substantial disadvantage" component of issue (2) is satisfied in this case.

 

82. The remaining issue (2) sub-issue is as follows. Was the DSD's imposition of the relevant PCP (the requirement that the claimant should work at the Tower, as distinct from being transferred to a post which was based at some work location which would nearly always be within approximately 20 minutes drive away from his home) a cause of the relevant pain and/or discomfort?

 

83. In our view, the answer to that question is "no". We have arrived at that conclusion against the following background and for the following reasons.

 

(1)           If the claimant had varied his working hours, to a relatively modest extent, the journey-time on the journey to work, and the journey-time on the journey from work, would both have been much reduced.

 

(2)           Dr Beattie's careful oral testimony has convinced us that the claimant's pain and/or discomfort, on the journeys to or from work, would have been eliminated or very much reduced if he had carried out neck exercises of the type referred to by Dr Beattie during his oral testimony in these proceedings.

 

(3)           On the basis, in particular, of Dr Beattie's testimony, it seems to us to be clear that, on long journeys to or from work, the claimant would have avoided nearly all pain and/or discomfort if he had got out of the taxi, every 20 minutes or so, and had then walked about for a couple of minutes. In relation to the latter matter:

 

(a) We consider that we are entitled to take judicial notice of the fact that the cost of paying for the few extra minutes of taxi waiting time would be relatively modest (and thus affordable by the claimant).

 

(b) It has not been proven that the costs of the few minutes of waiting time would not have been reimbursed (under the "Access to Work Scheme").

 

84. In summary, in relation to issue (2), our key conclusions are as follows:

 

(1) We have concluded that if the application of the relevant PCP had placed this claimant at a relevant disadvantage, any such disadvantage would have been a substantial disadvantage (and, as a consequence, the section 4A duty - to take such steps as were reasonable, in all the circumstances of the case, for it to have to take in order to prevent the PCP having that effect - would have been triggered).

 

(2) However, we have concluded that that duty was not in fact triggered, because although the relevant PCP was applied, the application of that PCP would not have placed the claimant at a substantial disadvantage if:

 

(a) the claimant had been willing to modify his working hours, or

 

(b) he had carried out the neck exercises which are referred to above, or

 

(c) he had briefly stepped out of the taxi every 20 minutes or so (during lengthy journeys).

 

Issue (3)

 

85. In case our conclusions in respect of issue (2) are incorrect, we have also decided issue (3).

 

86. Our conclusions in respect of issue (3) are set out at paragraphs 87 - 108 below.

 

87. It will be recalled that issue (3) is the following issue: Did the DSD come under a section 4A duty to take steps with a view to achieving a transfer of the claimant to a suitable post within one of the relevant areas of choice?

 

88. In arriving at our conclusions in respect of issue (3), we must of course have regard to the list of factors which are set out at paragraphs (a)-(g) of subsection (1) of section 18B of the Act. (See paragraph 19 above).

 

89. Paragraph (e), which refers to the availability to the employer of relevant financial or other assistance, seems to be of very limited relevance in the circumstances of this case.

 

90. Paragraph (g), which relates to a private household, is irrelevant in the context of this case.

 

91. Accordingly, we can focus our attention on factors (a)-(d) and factor (f) of the section 18B list.

 

92. Factors (d) and factors (f) relate respectively to the extent of the employer's financial and other resources, and to the nature of the employer's activities and to the size of the employer's undertaking.

 

93. It is appropriate to consider matters (d) and (f) together.

 

94. Obviously, the financial and other resources of the DSD, and the size of DSD's undertaking, are enormous, in comparison with most employers in Northern Ireland.

 

95. Accordingly, the extent of DSD's resources and the size of its undertaking are matters which favour the claimant's position, in any consideration of the issue (3) question.

 

96. Paragraph (a) of subsection (1) relates to "the extent to which taking the step would prevent the effect in relation to which the duty is imposed". We have no doubt that transferring the claimant to a location within one of the relevant areas of choice would have prevented the disadvantage which has been identified at paragraphs 79 and 80 above. Accordingly, factor (a) is a factor which favours the claimant's position in respect of issue (3).

 

97. Factors (b) and (c) can usefully be considered together.

 

98. Factor (b) is "the extent to which it is practicable for [the employer] to take the [relevant] step ...". Factor (c) refers to "... the extent to which taking [the relevant step] would disrupt any of [the employer's] activities". At paragraphs 99-101 below, we arrive at conclusions in respect of the implications of the factors (b) and (c), in the circumstances of this case.

 

99. Because of the claimant's other disabilities, various modifications to the claimant's working conditions and environment had already been made. (See paragraph 13 above). As a result of those modifications, the range of posts to which the claimant would potentially have been transferable, within the relevant areas of choice, was substantially diminished.

 

100. The claimant of course could not properly be criticised, in any way, or to any extent, for seeking and obtaining the relevant modifications. Nevertheless, unfortunately, and through no fault of the claimant, it is a fact that the result of the modifications was to narrow the range of posts to which the claimant would potentially be transferable.

 

101. The claimant was asked by the DSD to consider modifying his hours of service. He was unwilling to be flexible to any extent in that connection. The claimant has told us that concerns about being available for his young son is the reason for that lack of flexibility. (We have assumed that that is the true position). The claimant could not justly be criticised for being inflexible, in that respect, because of his perception of his family responsibilities. Nonetheless, that lack of flexibility did have the practical effect of further diminishing the number of posts, within the relevant areas of choice, to which he would potentially be transferable.

 

102. It seems to us that the conclusions set out above at paragraphs 100 and 101 above are important matters to be considered in considering the implications of factor (b).

 

103. As has been emphasised in reported cases on more than one occasion, the section 18B(1) list is a non-exhaustive list. In our view, in considering whether the relevant step would be "reasonable" (within the meaning of section 4A(1) of the Act), it is appropriate also to take account of some of the matters to which we have already referred (in the context of determining issue (2) of the disputed issues) at
paragraph 83 above. In our view, the matters there set out, at sub-paragraphs (1) and (2) of paragraph 83 and at sub-sub-paragraph (a) of sub-paragraph (3) of that paragraph, are important matters which also adversely affect the arguments in favour of the reasonableness of the proposed adjustment. (See the next paragraph below.)

 

104. In deciding the "reasonableness" question, it is appropriate to consider the proportionality of the proposed steps. In that regard, the following matters are relevant:

 

(1) If the claimant had varied his working hours, to a relatively modest extent, the journey-times, both on his journey to work and on his journey from work, would usually have been much reduced.

 

(2) We are satisfied that the claimant's pain and/or discomfort, on journeys to or from work, would have been eliminated or very much reduced if he had carried out neck exercises of the type which were mentioned by Dr Beattie during his oral testimony in these proceedings.

 

(3) On the basis, in particular, of Dr Beattie's testimony, it seems to us to be clear that, on long journeys to or from work, the claimant would have avoided nearly all pain and/or discomfort if he had have got out of the taxi, every 20 minutes or so, and had then walked about for a couple of minutes.

 

105. In relation to the subject-matter of paragraph (3) of paragraph 104 above:

 

(1) We consider that we are entitled to take judicial notice of the fact that the cost of a few extra minutes of waiting time would be relatively modest and would thus have been affordable by the claimant.

 

(2) We note again that the burden of proof is reversed in respect of issue (3). Against that background, we take no account of the possibility of the cost of relevant waiting time being borne by DELNI (in its capacity as the sponsor of the "Access to Work Scheme") because it has not been proven that DELNI would have been willing to pay those costs in that capacity.

 

106. For those reasons, and against that background, we have decided that the DSD did not come under a Section 4A duty to transfer the claimant (to one of the relevant areas of choice) or to take action with a view to achieving such a transfer. In arriving at that conclusion, we have taken account of all of the factors which are specified or referred to at paragraphs 88-105 above.

 

107. In arriving at our conclusions in respect of issue (3), we have not lost sight of the fact that section 17A(1B) has the effect of reversing the burden of proof in relation to that issue. However, as was pointed out by the Supreme Court in Hewage and Grampian Health Board [2012] UKSC 37, at paragraph 32, the burden of proof provisions, throughout the various employment discrimination statutes, have limited significance in evidential situations which are not relatively borderline. In this case, in respect of issue (3), we are not in a borderline situation. In this case, we are entirely clear that it would not have been reasonable for the DSD to have had to take the relevant steps (in relation to transfer).

 

108. During the course of the main hearing, Mr Doherty drew attention to alleged deficiencies in the way in which the DSD had dealt with the processes of consultation, assessment and dialogue which had occurred within the context of the claimant's relevant transfer request. In that connection, he acknowledged that, in Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664, the EAT had held that there is no separate and distinct reasonable adjustment duty on an employer to consult the disabled employee about what adjustment might be made. Instead, as was made clear in Tarbuck, the only question is whether, objectively, the employer has complied with its adjustment obligation, or not. As was pointed out in that case, by Elias J, at paragraphs 71 and 72:

 

"71. ... The only question is, objectively, whether the employer has complied with his obligations or not ... If he does what is required of him, then the fact that he failed to consult about it or did not know that the obligation existed is irrelevant. It may be an entirely fortuitous and unconsidered compliance: but that is enough. Conversely, if he fails to do what is reasonably required, it avails him nothing that he has consulted the employee ...

 

72. Accordingly, whilst as we have emphasised, it will always be good practice for the employer to consult and it will potentially jeopardise the employer's legal position if he does not do so - because the employer cannot use the lack of knowledge that would have resulted from consultation as a shield to defend a complaint that he has not made reasonable adjustments - there is no separate and distinct duty of this kind".

 

Mr Doherty argued that, in deciding upon the credibility, or otherwise, of the Department's evidence in respect of any issue (3) factual disputes, we should, because of the comments which were made at paragraph 72 of Tarbuck, have regard to what he alleged were gross deficiencies in the consultation, assessment and dialogue processes. We reject that legal argument. In our view, the comments at paragraph 72 of Tarbuck merely indicate that an employer cannot use a lack of the knowledge which would have resulted from proper consultation and dialogue as a section 4A(3) defence. (In that context, see issue (5) of the issues listed at paragraph 25 above, and see also paragraph 54 of Chief Constable of South Yorkshire Police v Jelic [2010] IRLR 744).

 

Issue (4)

 

109. Because of our conclusions in respect of issues (2) and (3), issue (4) has become irrelevant.

Outcome

 

110. In summary, we have concluded as follows. In the circumstances of this case, in light of all the factors and matters set out at paragraphs 88-105 above, imposition of the adjustment duty which was argued for in this case (in respect of a transfer to a post within one of the relevant areas of choice) was not "reasonable", within the meaning of Section 4A. Accordingly, issue (3) has been resolved in favour of the respondent. Therefore this claim is not well-founded and it must be dismissed.

 

General comments

 

111. The respondent should be aware of our view that, if the DSD had come under the relevant Section 4A duty, that duty would not have been discharged, and would not even nearly have been discharged, merely by giving the claimant priority on a transfer list, in light of all the circumstances of this case.

 

112. We realize, of course, that a step can be "reasonable" within the meaning of Section 4A, if there is merely a prospect of the relevant adjustment removing the relevant disadvantage; for that purpose, the relevant prospect does not even need to be a reasonable prospect. (In this context, see paragraph 76 of O'Neill v Department for Social Development [CRN 1922/11, decision issued on 7 August 2012].) Nevertheless, if a particular transfer constitutes a reasonable step within the meaning of Section 4A, there is an obligation on the employer to take proportionate measures with a view to achieving such an outcome.

 

113. The Section 4A duty is not about gestures; it is not about good intentions; and it is not solely about, or even mainly about, priorities. Instead, as was indicated in Archibald v Fife Council [2004] UKHL 32, the reasonable adjustment duty is about taking proportionate steps with a view to making things happen, not just hoping that they may happen. In that connection, we wish to draw attention to two particular aspects of the judgments in Archibald:

 

(1) At paragraph 15 of his judgment, Lord Hope made the following comments:

 

"The duty which rested on the council under [what is now Section 4A of the Act] is described in a side note to [the relevant section] as a duty to make adjustments. But it is not simply a duty to make adjustments. The making of adjustments is not an end in itself. The end is reached when the disabled person is no longer at a substantial disadvantage ..."

 

(2) At paragraph 43 of her judgment, Lady Hale reminded us of the essence of the reasonable adjustment duty, in the circumstances of that particular case:

 

"The employer is under a duty to take reasonable steps to prevent the terms of the disabled person's contract from placing her at this substantial disadvantage. As envisaged in [the relevant section], this may require the employer to transfer her to a vacant post where she will be able to carry out the essential functions of the job and so will not be at risk of being dismissed. That step would involve putting the disabled person in the new post, not merely giving her the opportunity to apply for the post and appointing her if her application was successful". [Our emphasis]

 

 

Employment Judge:

 

Date and place of hearing: 18 - 21 April, 24 & 27 June and 7 July 2016, Belfast.

 

Date decision recorded in register and issued to parties: