Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  578/16

 

 

 

CLAIMANT:                          Paul Smith

 

 

RESPONDENT:            The Simon Community Northern Ireland

 

DECISION

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

 

 

Constitution of Tribunal:

Employment Judge:          Employment Judge Murray        

Members:                             Mr I Atcheson

                                                Mr J Boyd

 

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by
Mr Upson of Thompsons Solicitors.

The respondent was represented by Ms R Best, Barrister-at-Law, instructed by
Ms Buchanan of Worthingtons Solicitors.

 

THE CLAIM

 

1.            The claimant’s case was that he was subjected to detrimental treatment and dismissed because of his disability and because he had made protected disclosures.  The claimant further claimed that there was a failure to make reasonable adjustments for his disability.

 

2.            The respondent’s case was that the claimant was fairly dismissed for failing his probationary period and that the dismissal was unrelated to any disclosures.  The respondent disputed that protected disclosures were made and denied knowledge of the claimant’s disability.

 

 

THE ISSUES

 

3.         The issues before the tribunal at hearing were as follows:

 

DDA Claim

 

            (1)       It was conceded by the respondent that the claimant was disabled for the purposes of DDA at the relevant time.  The impairment relied upon for the DDA claim was a mental impairment namely depression and anxiety. 

 

            (2)       For the reasonable adjustments claim the PCP relied upon was the requirement to reach a standard in his probationary period.  The issue for the tribunal was whether or not the application of that PCP placed the claimant at a substantial disadvantage due to his disability which meant that the duty to make reasonable adjustments was triggered.

 

            (3)        If the duty to make reasonable adjustments was triggered then the next issue was whether it was reasonable for the respondent to make the adjustments suggested in the hearing by the claimant’s side.

 

            (4)       Whether the claimant was subjected to direct discrimination on grounds of his disability in relation to the decisions to suspend him, to subject him to a disciplinary process and to dismiss him.

 

Protected Disclosure Claim

 

            (5)       The respondent did not allege a lack of good faith on the part of the claimant.

 

(6)       The first issue was whether the claimant made disclosures of information which tended to show that a relevant failure had occurred or was likely to occur.

 

            (7)        The next issue was whether the claimant held reasonable belief in the truth of that information and that the information disclosed tended to show the relevant failure.

 

            (8)       The categories of relevant failure in issue in this case were:  firstly, a criminal offence in relation to the drug use issue; secondly, failure to comply with a legal obligation in relation to risk assessments and breaches of health and safety;  thirdly, health and safety itself; and fourthly, concealment of any matter falling within the three categories.  The concealment point was not pursued in the evidence or submissions to any discernible degree.

 

            (9)       If the claimant raised protected disclosures with his managers, firstly, were any impugned decisions taken on grounds of him having made one or more of those disclosures and secondly was the principal reason for the dismissal the fact that he had made one or more of the disclosures.  The detrimental acts alleged to be on ground of protected disclosures are outlined below and are the same acts relied upon in the direct disability discrimination claim.

 

            (10)     If the claimant succeeds on one or more of the above matters what level of compensation should be awarded.

 

 

SOURCES OF EVIDENCE

 

4.         The tribunal heard evidence and had written statements from the claimant on his own behalf.  The tribunal also had regard to the documentation to which it was referred during the hearing.  The tribunal also had written and oral evidence from the following witnesses for the respondent:

 

(1)          Brian Clarke of HR who sat on the claimant’s interview panel.

 

(2)          Eoin Ryan, Head of Service, who dealt with the claimant’s induction in relation to the drug’s use policy.

 

(3)          Jim Dennison, Chief Executive, who dealt with the claimant’s induction on 16 November 2015 and who had an email exchange with the claimant after his dismissal.

 

(4)          Karen McAllister, Head of Service Young People, who was responsible for the respondent’s unit at Antrim Road.

 

(5)          Julie McCandless, Team Leader at the respondent’s unit at Cliftonville, who was the claimant’s line manager at the time of his dismissal.

 

(6)          Simon Jones, Head of Service, who decided not to let the claimant be a key worker for a client until his induction was done and took the decision, with others, to dismiss the claimant.

 

(7)          Kelan McClelland, Head of Service Homelessness Prevention, who investigated the issues the claimant raised and arranged for the claimant to transfer to Cliftonville from Antrim Road.

 

(8)          Siobhan Laverty who was Acting Director of HR from 28 November 2015 (and also Director of Finance) and had a key email exchange with the claimant in relation to a transfer application.

 

THE LAW

 

5.         The representatives provided written submissions supplemented by oral submissions on the date of the first submissions hearing.  A second submissions hearing was convened to deal specifically with the issue of knowledge in relation to the DDA claim and to deal with the relevance or otherwise of the Risk Assessment Regulations which were provided by the claimant. 

 

6.         The parties also referred the tribunal to the following list of decisions not all of which were specifically referred to:

 

Blackbay Ventures Ltd (t/a Chemistree) v Gahir [2014] IRLR 416

 

Cavendish Munro Professional Risks Management Ltd v Geduld

[2010] IRLR 38

 

High Quality Lifestyles Ltd v Watts [2006] IRLR 850

 

Hossack v Kettering Borough Council [2002] UKEAT 1113/01

 

Babula v Waltham Forest College [2007] EWCA Civ 174

 

Darnton v University of Surrey [2003] ICR EAT

 

Kilraine v London Borough of Wandsworth UKEAT/0260/15/JOJ

 

Dr M Easwaran v St George’s University of London UKEAT/0167/10/CEA

 

Gallop v Newport City Council [2013] EWCA Civ 1583

 

Martin v Devonshires Solicitors [2011] ICR352

 

Korashi [2012] IRLR 4 EAT

 

7.         Mr Potter referred to the Gahir case to the extent that at page 2 it sets out guidance for a tribunal in approaching protected disclosure cases.  This relates to the headnote under the heading “observed”. 

 

8.         Mr Potter referred to the Korashi case without going into it in detail stating that that relates to how to assess reasonableness.

 

9.         The IDS Employment Law Handbook on Whistleblowing at Work states as follows in relation to Korashi:

 

                        “However, the statutory test is not 100 per cent subjective.  If that were the case, the worker would only have to show that he or she genuinely believed that the disclosure was made in the public interest and that it tended to show that one of the relevant failures had occurred, is occurring, or is likely to occur.  But S.43B(1) requires a reasonable belief of the worker making the disclosure, not a genuine belief.  This introduces an objective standard into the test, suggesting that there has to be some substantiated basis for the worker’s belief.  As courts and tribunals will take a worker’s individual circumstances into account when determining whether he or she had a reasonable belief, those with professional or ‘insider’ knowledge will be held to a different standard than laypersons in respect of what it is ‘reasonable’ for them to believe - Korashi v Abertawe Bro Morgannwg University Local Health Board 2012 IRLR 4, EAT”.  (paragraph 3.19).

 

10.      Mr Potter referred to the Hossack case confirming that it states that someone can be dismissed by reason of the manner of a disclosure.  The Martin case relates to the same point.

 

11.      On the knowledge point in the DDA claim the parties referred us to the following authorities:

 

            1.         Ridout v TC Group [1998] IRLR 628

 

            2.         DWP v Hall UKEAT/0012/05

                                                             

            3.         Bowers v William Hill Organisation Ltd UKEAT/0046/09/DM

             

            4.         Wilcox v Birmingham CAB Services Ltd UKEAT/0293/10/DM

 

            5.         Gallop v Newport City Council [2013] EWCA 1583

 

            6.         CLFIS (UK) Ltd v Reynolds [2015] IRLR 562 (CA)

 

            7.         Gallop v Newport City Council [2016] IRLR 395 (EAT)

 

Public Interest Disclosure

 

12.       The Public Interest Disclosure (Northern Ireland) Order 1998 amended the Employment Rights (Northern Ireland) Order 1996 (‘ERO’) and introduced provisions protecting workers from unfair dismissal and detriment in the event of them having made protected disclosures.

 

13.       Disclosures qualifying for protection are referred to in Article 67B of ERO which outlines the categories of “relevant failure”.  The relevant parts of that provision state as follows:

 

                        “67B. - (1)   In this part a “qualifying disclosure” means any disclosure of  information which, in the reasonable belief of the worker making the disclosure, tends to show one or more of the following -

 

                                   (a)       that a criminal offence has been committed, is being committed or  is likely to be committed,

 

                        (b)       that a person has failed, is failing, or is likely to fail to comply with any legal obligation to which he is subject;

                                   

                                     …

 

                        (d)       that the health or safety of any individual has been, is being or is likely to be endangered;

 

                                    ...

                       

                        (f)         that information tending to show any matter falling within any one of the preceding sub-paragraphs has been, is being or is likely to be deliberately concealed”.

                

14.       The meaning of ‘information’ is encapsulated in the following dictum by Slade J in the Geduld case as follows:-

 

                        “Further, the ordinary meaning of giving “information” is conveying facts.  In the course of the hearing before us, a hypothetical was advanced regarding communicating information about the state of a hospital.  Communicating “information” would be “The wards have not been clean for the past two weeks.  Yesterday, sharps were left lying around”.  Contrasted with that would be a statement that “you are not complying with Health and Safety requirements”.  In our view this would be an allegation not information”.

 

15.       Mere allegations or expressions of opinion do not constitute information and are thus not protected.  Goode v Marks and Spencer plc UKEAT/0442/09. 

 

16.       A disclosure can comprise a combination of information and allegation.  This was made clear in the EAT decision of Kilraine by Mr Justice Langstaff in the  following dictum:

 

                        “The dichotomy between ‘information’ and ‘allegation’ is not one that is made by the statute itself.  It would be a pity if tribunals were too easily seduced into asking whether it was one or the other when reality and experience suggest that very often information and allegation are intertwined.  The decision is not decided by whether a given phrase or paragraph is one or rather the other, but is to be determined in the light of the statute itself.  The question is simply whether it is a disclosure of information.  If it is also an allegation, that is nothing to the point.” (Para 30).

                         

17.       The principles involved in assessing the reasonable belief element are outlined in the leading textbook Bowers and can be gleaned from the Darnton, Babula and Korashi cases.  They are as follows:-

 

            (1)       The test involves both a subjective test of the worker’s belief and an objective assessment of whether the belief could reasonably have been held (Babula).

 

(2)         The worker can be wrong yet still hold a reasonable belief (Darnton).

 

(3)         The test of reasonable belief applies to all elements of the test of whether the information disclosed tends to show a relevant failure including whether the relevant legal obligation in fact exists (Babula).

 

(4)         Reasonableness of the belief is to be tested having regard not only to what was set out in the disclosure but also to the basis for that information and any allegation made (Darnton para 29 and Babula para 82).  This is particularly key in this case.

 

(5)         What is reasonable depends on all the circumstances assessed from the perspective of the worker at the time of making the disclosure and it is for the tribunal to assess this.  This may include consideration of the circumstances in which the disclosure was made, to whom the disclosure was made, the context and extent to which the worker claims to have direct knowledge of the matters disclosed and a comparison with how the worker would be expected to have behaved if he genuinely and reasonably believed in the truth of the matters disclosed and that they tended to show a relevant failure (Darnton paras 28-32).

 

(6)         The truth or falsity of the information disclosed and whether or not the relevant failure in fact occurred may be relevant when assessing reasonable belief (Darnton).

 

(7)         The worker must exercise a judgement consistent with the evidence and resources available, including the expertise and seniority of the worker, their ability to investigate further, and whether it is appropriate in all the circumstances instead to refer the matter to someone else to investigate (Darnton).

 

(8)          The standard to be applied to whether a disclosure qualifies for        protection has to take into account that it is only necessary to have a     reasonable belief that the information ‘tends to show’ the relevant failure, rather than that it positively establishes that failure.

 

(9)          The burden is on the worker making the disclosure to establish the requisite reasonable belief (Babula).

 

(10)       There must be more than unsubstantiated rumours in order for there to be a qualifying disclosure (Darnton).

 

18.       The following extract from Bowers summarises the approach to be adopted by tribunals:

 

“In each case there must be some grounds for believing that information disclosed is true, such that in the circumstances it was reasonable to hold that belief.  But the standard required will depend on the circumstances.  As the EAT emphasized, the worker must exercise judgment consistent with the evidence and resources available.  This approach affords tribunals the flexibility to distinguish circumstances where the employer will be best able to investigate from, at the other extreme, allegations that the worker ought to have realized were untrue or where the employer has provided an adequate explanation which is unreasonably rejected by the worker”.  (Bowers para 3.34).

 

19.       The following extract from Korashi is of note:

 

“... many whistleblowers are insiders.  That means that they are so much informed about the goings-on of the organisation of which they make complaint than outsiders, and that that insight entitles their views to respect.  Since the test is their “reasonable” belief, that belief must be subject to what a person in their position would reasonably believe to be wrong-doing”.  (paragraph 62).

 

20.       The following extract from Darnton is relevant:

 

                        “... for there to be a qualifying disclosure, it must have been reasonable for the worker to believe that the factual basis of what was disclosed was true and that it tends to show a relevant failure, even if the worker was wrong, but reasonably mistaken”.

 

21.      The following extracts from Babula are relevant to this case as they outline the employee’s submissions which were accepted by the Court of Appeal (CA):

 

(i)        ... “the purpose of the legislation, which was to encourage employees to come forward and make disclosures in the public interest.  Such an interpretation would not licence the foolish or the vindictive, not least because the statute itself imported a number of safeguards against abuse”.  (paragraph 56)

 

                        (ii)       “The balance to be struck [is] between the need to protect workers who make disclosures in the public interest from dismissal, and the needs of an employer not to be subject to unreasonable or malicious disclosures ...”  (paragraph 63)

 

(iii)      “An employment tribunal hearing a claim for automatic unfair dismissal has to make three key findings.  The first is whether or not the employee believes that the information he is disclosing meets the criteria set out in one or more of the subsections in [ERO A 67B(a)-(f)].  The second is to decide, objectively, whether or not that belief is reasonable.  The third is to decide whether or not the disclosure is made in good faith”.  (Paragraph 81).

 

22.       Article 70B of the ERO provides:

 

                     “A worker has the right not to be subjected to any detriment by any act or deliberate failure to act by his employer done on the ground that the worker has made a protected disclosure”.

 

23.      Detriment is determined using the Shamoon test which is whether a reasonable worker would or might take the view in all the circumstances that the treatment was to the claimant’s detriment in the sense of being disadvantaged. 

 

24.      The detriment suffered must be on the ground of having made a protected disclosure.  In the Nagarajan case the House of Lords sets out the correct approach which requires the tribunal to consider the mental processes of the respondent and the reason why detrimental acts or omissions occurred.  The tribunal must consider the motivations of the respondent, whether conscious or unconscious.  The key question is whether the detrimental acts or omissions were materially influenced by the fact that the claimant made protected disclosures.

 

25.      The burden of proof in whistleblowing detriment cases operates in the same way as it operates in Trade Union detriment cases.  This is in contrast to discrimination cases generally where the initial burden is on the claimant to prove facts from which the tribunal could conclude that an act of discrimination occurred.  This means that, in effect, there is a lower threshold for a claimant to surmount in order for the burden to shift to the respondent to provide an untainted explanation for any detrimental acts.  Thus the initial burden is on the claimant to prove that he made protected disclosures and that he suffered detriment.  If he proves those two elements the burden shifts to the employer to provide an explanation which is not tainted by the fact of the claimant having made protected disclosures.

 

26.       Article 134A of ERO provides that an employee is automatically unfairly dismissed if the reason or the principal reason for the dismissal is that he has made a protected disclosure.  There is no requirement to have one year’s service in order to avail of this protection.

 

27.      In the case of Kuzel v Roche Products Limited [2008] IRLR 530 CA, the EAT set out the guidance in relation to the burden of proof in dismissal cases.

 

Disability Discrimination Act 1996 (DDA) 

 

The duty to make reasonable adjustments 

 

28.       The employer’s duty to make reasonable adjustments is outlined in the DDA at s4A and states, insofar as is relevant to these proceedings, as follows:

 

“4A - (1) Where -

                                 

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

 

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

 

Knowledge and reasonable adjustments  

 

29.       It was agreed by both sides that the scheme of the legislation in relation to reasonable adjustments provides at section 6(1) of DDA that if a claimant’s disability places him at a substantial disadvantage due to his disability then the duty to make reasonable adjustments arises unless the employer can avail of the exemption at Section 6(6).  That exemption provides, in essence, that the respondent will not be under such a duty if it did not know or could not reasonably be expected to know, firstly, of the claimant’s disability and secondly, that the disability placed him at the substantial disadvantage.

 

30.      In the case of Rowan v The Environment Agency [2008] IRLR 20 the EAT outlined the steps that the tribunal must go through in order to determine whether the duty to make reasonable adjustments arises and whether it has been breached.  The steps relevant to this case, are as follows:-   

 

(i)        identify the provision, criterion or practice (PCP) applied that has put the claimant at a disadvantage compared to those who are not disabled;

 

(ii)       identify the non-disabled comparator (where appropriate);

 

(iii)      identify the nature and extent of the substantial disadvantage suffered by the claimant.

 

31.      If the duty arises the tribunal then goes on to determine whether the proposed adjustment is reasonable to prevent the PCP placing the claimant at that substantial disadvantage.  This is an objective test.

 

32.      A dismissal can itself be an unlawful act of discrimination by reason of a failure to make reasonable adjustments.  (Fareham College Corporation v Walters [2009] IRLR 991 EAT).  

 

33.      The burden of proof provisions as outlined in the case of Igen Limited v Wong [2005] IRLR 258 CA and in subsequent authorities, apply to these proceedings.  The claimant must prove facts from which, in the absence of an adequate explanation, the tribunal could conclude that a duty to make a reasonable adjustment has arisen and that it has been breached.  If the claimant proves such facts the burden shifts to the employer to prove either, that no such duty arises or, that it has not been breached.

 

Direct discrimination     

                

34.      Under the DDA direct discrimination is defined at Article 4(2) which provides where relevant:

 

            “4.       Discrimination against applicants and employees

 

            (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”.

 

35.      It is for the claimant to prove facts from which a tribunal could conclude that an act of direct discrimination on grounds of disability occurred.  If he does so, the burden of proof shifts to the respondent to provide an explanation that is untainted by such discrimination.

 

FINDINGS OF FACT AND CONCLUSIONS

 

Introduction

 

36.      The respondent organisation is a charity with 22 accommodation sites across Northern Ireland, providing support to those who are homeless.  The respondent has a number of residential hostels providing temporary accommodation to vulnerable individuals with complex needs.  The role of an Accommodation and Community Support Worker is to provide support to clients to enable them to address their issues (which might include alcohol and substance misuse and mental health issues) and to move them out of homelessness.  The claimant was employed (initially on probation) as an Accommodation and Community Support Worker by the respondent from 9 November 2015 until 2 February 2016 when he was verbally dismissed in a meeting.

 

37.       Mr Jones’ evidence was unsatisfactory in several respects as was Ms McCandless’ evidence and we therefore viewed their evidence with caution.  We did not however discount it entirely as requested by Mr Potter.  The claimant’s evidence was also unreliable in several respects.  We found Mr Ryan, Mr McClelland and Ms Laverty to be particularly credible and convincing witnesses.

 

38.      In his statement for this tribunal the claimant made reference to “false allegations against a male member of staff” stating:

 

                                    “In my view this common room was an unnecessary hazard to both SCNI staff and service users.  A hazard which, in my view, could have been avoided.  I was particularly concerned as staff had made me aware that allegations had been made against a male member of staff previously by a service user who was still resident, and I was advised by several members of staff to be very careful with her. 
(Paragraph 50).

 

“As a result of this discussion with colleagues I decided to investigate the guidelines and recommendations from relevant governing agencies in order to ensure that I was justified in pursuing this point by raising it with the Head of Service responsible for the scheme (see document at bundle pages C91).  Once I investigated I believed that the situation may be contravening guidelines for caring for young and vulnerable adults laid down by the many bodies responsible for providing guidance to Social Care Providers.  The guidelines suggest that the creation of areas, within residential schemes responsible for the care of young and vulnerable people (including LAC status), where young people (and staff) could be isolated or cut off should be avoided”.  (Paragraph 51).

 

39.       Nothing of this allegation was in the email of 22 November nor in the discussions with Mr McClelland.  We reject the claimant’s account in his tribunal statement as there is no contemporaneous account of it and we therefore find that it was not a concern for him at the time.  We were also not referred to any of the guidelines referred to in the statement in tribunal and we find that this amounted to the claimant’s opinion, at its height.  There was no evidence to show that a category of relevant failure was engaged.  We find that it reflects adversely on the claimant that he made this point in tribunal yet, despite its seriousness, there was no reference to it at the relevant time in the 3 disclosure events relied upon.  This tainted his reliability and credibility for us.

 

Chronology

 

40.       The claimant started work for the respondent on 9 November 2015 and underwent two weeks’ training during which reference was made to how to deal with issues of drug use by residents.  He was initially based at the unit at Antrim Road.

 

41.       On 20 November 2015 (which on the claimant’s account was his fourth shift at work) managers, including Ms McAlister, visited Antrim Road.  The claimant raised issues verbally with Ms McAlister and relies on these verbal disclosures in the protected disclosure claim.  This is the first disclosure event relied upon.

 

42.       On 22 November 2015 the claimant sent an e-mail raising concerns which repeated and added to the concerns he had raised verbally on 20 November 2015.  This is the second disclosure event relied upon.  A detailed analysis of each alleged protected disclosure is set out below.

 

43.       On 24 November 2015 Mr McClelland was tasked to investigate the claimant’s concerns and he ultimately compiled a report for management dated
21 December 2015. 

 

44.       On 3 December 2015 the claimant met Mr McClelland who compiled a record of their discussions, sent it to the claimant and no issue was taken by the claimant as to its accuracy.  We therefore take its contents at face value, and accept Mr McClelland’s evidence that the claimant said that he did not want to go through the email of 22 November 2015.  The content of this meeting is relied upon as the third disclosure event. 

 

45.       On 18 December 2015 the claimant was told he was to be moved to Cliftonville and this was a decision taken by Mr McClelland on 17 December 2015.

 

46.       On 21 December 2015 the claimant started in Cliftonville.   Ms McCandless was the team leader in Cliftonville and (at Mr McClelland’s direction) she started the induction again.  Her unchallenged evidence was that there were certain “milestones” that someone had to pass before they would be allocated their own clients and that in her experience no-one else was allocated their own clients within the first four weeks.

 

47.      In mid-January 2016 Ms McCandless at her one-to-one meeting told Mr Jones about the claimant’s negative behaviour and Mr Jones told her to do a note.  On
11 February 2016 Ms McCandless later sent an e-mail to Mr Jones documenting the difficulties she had had with the claimant which, in summary, related to reports to her from colleagues about the claimant’s negativity and challenging of staff.

 

48.       Between the 12 and 29 January 2016 Ms McCandless noted the problems with the claimant without raising any issues with the claimant at the one-to-one meetings that took place during that period.

 

49.       Mr Jones’ e-mail of 18 January 2016 shows that the claimant was regarded adversely for raising issues which were termed “negative observations”.  The email states: 

 

            “Paddy & Siobhan

 

Time ticks on and Mr Smith remains indefatigable in his negative observations of everything Simon Community.  Has a decision been made about what to do with him and if we are seriously considering terminating his employment, how and when could this be done?

 

I eagerly await your responses.

 

Simon Jones

 

Head of Service: Offending Behaviour”

 

50.       On 22 January 2016 the claimant sent an email to Ms Laverty Head of HR in relation to his request to transfer location.  The email states:

 

            “Siobhan

 

With reference to your email.

 

I have not discussed any transfer application in any way with staff from another scheme.  My previous email to you states that I ‘spoke’ to staff; I did not discuss transfers during this conversation and I did not state this in my email to you.  In my email I stated that I was aware of their desire to have more mature staff working in Edward street; I am aware of this due to the staff involved stating this openly to everyone who was in attendance at the training session to which I made reference in my previous email.  I did not ask for or receive any information from the staff in Edward Street other than that which was offered openly to the entire group who were present, including the Simon Community member of staff delivering the training.  I take issue with your reference to any ‘inappropriate action’ on my part.

 

Additionally, I did submit my transfer request via the ess online transfer request and forwarded it to my team leader. 

 

I contacted HR to ask in the first instance if there were any vacancies in the Portadown area.  It was at this point that I was informed by Conor on the 26 week restriction.  My subsequent email was a request for clarification on the relevant policy, something I assumed would be the responsibility of the HR department.

 

I will be forwarding this email to my team leader and requesting that the reference to inappropriate behaviour, on my part, be further investigated as I am very offended by the suggestion that I have behaved in an appropriate manner.

 

Regards

 

Paul Smith”

 

51.       This was in response to the email of 22 January which states:

 

“Paul

 

There is a clear process to follow in relation to making a request to transfer or any work/life balance application and it is not e-mailing HR directly.  I would also ask you not to discuss any potential or current applications for transfers with staff from other sites; that is entirely inappropriate!

 

Please follow the process as it is outlined in the Procedures Handbook for future applications.

 

Regards

 

Siobhan Laverty

 

Director of Finance and Business Support”

 

52.      On 29 January 2016 an un-noted meeting took place between Ms McCandless, Mr Jones and Ms Laverty when they decided to terminate the claimant’s employment;

 

53.      In late January/early February 2016 Mr Jones told Ms McCandless that the claimant was to be dismissed;

 

54.      On 2 February 2016 Ms McCandless and Mr Jones met the claimant and terminated his employment with immediate effect. 

 

55.      In his email of 2 February 2016 to Mr McClelland and Mr Clarke, Mr Jones elaborated on his reasons for finding the claimant’s performance unsatisfactory due to negative behaviour: 

 

“Brian

 

(1)       He was told that his performance was unsatisfactory due to his negative behaviour (not attitude), most notably his conduct at 242 Antrim Road, towards and regarding Karen McAlister.  It was reiterated that the meeting was not a disciplinary meeting.  He was informed that termination of his employment was effective immediately.  He returned his ID card.

 

(2)       He asked for no more detail, but if he had he would have been told that his negative behaviour displayed itself as follows:

 

(i)        His determination to point out to managers and colleagues alike, his perception of the negative/potentially negative outcomes of any situation, e.g. this related to a core number of procedures and practices outlined in an email to Karen;

 

(ii)       His perception of events that have no basis in fact and are expressed in extravagant or excessive terms, e.g. the health and safety outcomes of procedures that have not been risk assessed;

 

(iii)      Undermining the authority of managers; e.g. constant referral and reference to the HR manual and legislation;

 

(iv)      Rousing discontent in colleagues and making a demoralising impact on teams, i.e. CVA colleagues were concerned about his moaning and negativity.

 

Hope this helps

 

          Simon”

 

56.      The reason given to the claimant for his dismissal in a letter of 3 February was that he had failed his probationary period.  That letter states as follows:

 

“Dear Paul

 

I am writing to you to confirm the decision that your contract of employment with the Simon Community has been terminated with immediate effect.

 

You have failed to meet the standards required during your probation period as detailed below:

 

·         Your negative and aggressive behaviour towards the Head of Service while you were located in 242 Antrim Road.

 

·         Your negative and demoralising impact on your current work colleagues in Cliftonville Avenue.

 

After you met with Kelan McClelland, Head of Service for Homelessness Services, it was agreed that you would be transferred to Cliftonville Avenue to provide you with additional Team Leader support.  However, since you have moved, there has been no improvement in your negative behaviours.  This is evident in the e-mail you sent to the Director of Finance [Ms Laverty] on 22 January, which clearly displays a continued negative and aggressive attitude.  In addition, your Team Leader has reported concerns which other staff members have brought to her in relation to your continued negative behaviours and attitude, and the detrimental impact it is having on them.  Such behaviours are incompatible with the values and standards of the Simon Community.

 

You will receive one week’s pay in lieu of notice.

 

Yours sincerely

 

Brian Clarke

 

HR Coordinator”

 

Whistleblowing claims

           

57.      There are 3 disclosure events relied upon:

 

(1)        The verbal encounter with Ms McAlister on 20 November 2015;

 

(2)          The email of 22 November 2015;

 

(3)          The meeting with Mr McClelland on 3 December 2015 which was arranged to address the claimant’s concerns raised in the verbal encounter with
Ms McAlister on 20 November 2015.

           

58.       We must assess whether the claimant conveyed information.  We must also assess the reasonableness of the claimant’s belief at the time of the disclosure by looking (inter alia) at the claimant, the circumstances, the context, the information available to the claimant, the basis for that information and any associated allegation.  We must examine the claimant’s subjective belief and whether it was objectively reasonable for him to hold that belief in, firstly, the truth of the information conveyed and, secondly, that the information tended to show a relevant failure.

 

59.       For the claimant, it was Mr Potter’s submission was that the disclosures engaged categories (b) and (d) of the relevant failures in the legislation namely, breach of a legal obligation and breach of health and safety and that the disclosure in relation to drugs also engaged category (a) which is the criminal category of relevant failure.  There was no reference in the submissions to the concealment category. 

 

60.       Mr Potter’s submission was that the claimant unwittingly “touched a raw nerve” when he raised risk assessment and training issues and the point appeared to be that this should lead us to conclude that other managers treated the claimant adversely because of the fact that he had raised those matters.

 

61.      For the respondent it was Ms Best’s submission in relation to all the disclosures relied upon, that they were vague general allegations, expressions of opinion, requests for clarification and did not convey facts.  At this point we pause to note that the legislation states that information must be conveyed.  The Kilraine case makes clear that information can be a mix of fact and allegation or, indeed, mere allegation or opinion depending on the claimant’s position and level of knowledge or expertise. 

 

62.      Ms Best submitted that the points raised by the claimant revealed his lack of knowledge of policies and procedures as he was just new to the respondent’s organisation.  The respondent’s position was that, at the time of the protected disclosures, there were no outstanding issues following the audit visits and that the fact that the claimant raised those issues tended to show that he did not understand policies and procedures.

 

63.      The respondent did not allege a lack of good faith on the part of the claimant but focussed rather on a lack of information conveyed, expression of opinion and allegation, together with a lack of reasonable belief.

 

Disclosure event 1: verbal encounter on 20 November 2015

 

64.      The conversation between the claimant and Ms McAlister on 20 November 2015 was confirmed by the claimant’s e-mail of 22 November 2015.  To some degree the claimant’s and Ms McAlister’s accounts of this conversation agree, ie that the claimant repeatedly raised issues, Ms McAlister gave an explanation, the claimant did not agree, Ms McAlister offered to meet the claimant to discuss matters further, and he continued to raise matters despite this offer of a meeting.

 

65.      Clearly there was a heated exchange, and each blamed the other for any hostility.  The claimant described Ms McAlister as aggressive.  The description by
Ms McAlister was that the claimant’s language was aggressive.  Having observed both witnesses and having analysed the documents we do not accept that Ms McAlister was aggressive as the claimant alleged.  Clearly each person perceived the other to be hostile because the claimant challenged Ms McAlister persistently and Ms McAlister provided explanations and was exasperated that the claimant did not accept them. 

 

66.      We find that the claimant was aggressive in that encounter and accept Ms McAlister’s evidence for the following principal reasons:

 

(i)            The tone and manner of the claimant’s verbal communication  described by Ms McAlister, is supported by the same tone which is apparent in the claimant’s email of 22 November;

 

(ii)          Ms Durham’s note of the encounter supports Ms McAlister’s description of the claimant;

 

(iii)         The tone of the claimant’s other emails to Ms Laverty are in the same vein.

 

67.      Mr Potter disputed that the claimant was the aggressor in the meeting on
20 November pointing to the calmness of his demeanour when he was actually sacked and the calmness of his demeanour in tribunal.  This is not definitive and is no more than a factor for us to weigh up in our assessment.  Ms McAlister came across in tribunal and in the documents as an unaggressive individual who was somewhat exasperated at the claimant’s attitude.

 

Disclosure event 2: email 22 November 2015

 

68.      The claimant raised concerns in an email of 22 November 2015 sent to
Ms McAlister.  It was agreed that the emailed concerns repeated, expanded on and added to those concerns that he had raised verbally on 20 November 2015.  In assessing whether the email contained protected disclosures we take account of Ms McAlister’s response in the verbal exchange at the previous meeting when she provided clarification and explanation to the claimant.

 

69.       Mr Jones stated in evidence that the content of the e-mail was impertinent in tone and amounted to a challenge to Ms McAlister.  We accept that assessment of the email.  Mr Jones specifically highlighted the following parts of the claimant’s email:

 

(1)    “... agitation (based on your body language and tone of voice), which I felt bordered on hostility towards me by the end of your visit”.

 

            (2)     “You took issue with me for suggesting putting a camera in the common room saying you felt it was an invasion of privacy and seemed to suggest that I was proposing to surveil the clients.  I found this offensive”.

 

                        (3)     “... I was aware by the body language that you were displaying, that you were becoming exasperated by my continued requests for clarification on these matters ...”.

 

                        (4)     “... however due to the hostility being directed towards me I did not pursue the point at this time”.

 

70.       The issue for us is whether the issues raised contained information amounting to protected disclosures, whether any detrimental treatment was on grounds of the claimant having raised them and, whether the principal reason for the dismissal was the fact that he had raised protected disclosures. 

 

Specialist knowledge

 

71.      One issue for us is whether or not this is a case of a person having specialist knowledge known to the employer so that any concerns raised by him should be taken seriously by managers even if they are expressions of opinion.  Someone with specialist knowledge can also be held to a higher standard as regards the reasonableness of his belief as occurred in the Korashi case.

 

72.      In this case there was some allusion to the fact that the claimant, having worked in the Ambulance Service, would apparently have had some special expertise in Health and Safety.  The only evidence of what the claimant did in the Ambulance Service was that he was a trained paramedic.  We had no specific evidence that he had any special qualifications or knowledge (which would, or should, have been apparent to the respondent’s managers) about Health and Safety or health risks relevant to the points in issue in this case.  We therefore find that this is not a case of a claimant with evident specialist knowledge whereby the employer in this case should have been particularly careful to act on his concerns even if the concerns did not include a lot of information in the form of facts but largely comprised allegations and opinion.  

 

73.      We also find that we had no evidence to hold the claimant to a higher standard as regards the reasonableness of his belief, due to any specialist knowledge.

 

Analysis of protected disclosures

 

74.       In line with the authorities we analyse below each disclosure relied upon to determine firstly if it amounts to a disclosure of information and secondly whether it tended to show a relevant failure.  As outlined in Darnton by the EAT and approved in Babula by the Court of Appeal, the test is as follows:

 

                        “For there to be a qualifying disclosure it must have been reasonable for the worker to believe that the factual basis of what was disclosed was true and that it tends to show a relevant failure even if the worker was wrong but reasonably mistaken” (para 32 Darnton).

 

75.       Mr Potter made the general point that the claimant’s account of the reaction of Ms McAlister on 20 November 2015 (alluded to in the claimant’s email of 22 November 2015) formed part of the information conveyed, raised a health and safety problem and therefore amounted to a protected disclosure.  We reject this point as it is not apparent that there is any link to any relevant failure, the burden is on the claimant to prove such a link and he has failed to do so. 

 

76.       The analysis of reasonable belief requires an assessment of what the claimant believed at the time and whether it was reasonable of him to believe in the truth of the information and that it tended to show a relevant failure.  Relevant to this enquiry in this case are the following facts:

 

(i)      That the claimant had no apparent relevant specialist knowledge;

 

(ii)     That he had a flawed understanding of the drugs policy;

 

(iii)    That he had just joined the organisation and therefore had a lack of familiarity with policies and procedures generally;

 

(iv)    The response of Ms McAlister and the fact that the claimant repeated his concerns and escalated them despite that response;

 

(v)     The level of seriousness of the matters raised and whether it was reasonable of him to believe that they connoted wrongdoing (in the sense of a relevant failure) or potential wrongdoing.

 

77.      The claimant’s language escalated unreasonably in his exchanges in that it was intemperate, inappropriate, and unnecessarily challenging in our estimation.  It was similar to the claimant’s behaviour about asking for a transfer leading to his inappropriate email exchanges with Ms Laverty of HR as outlined above.  Nothing in that exchange with Ms Laverty was relied upon as a protected disclosure.  It was however referred to by Ms Best as an example of the claimant’s attitude and behaviour, and it was one of the matters referred to in the dismissal letter.   

 

78.       The email of 2 February 2016 to Mr Dennison contains in our view similarly exaggerated and intemperate statements even allowing for understandable bitterness on the claimant’s part for having been dismissed.  For example:

 

(1)              “I can assure you that I will not be letting the matter rest here.  During my time with the Simon Community, due to my ability to communicate at every level and empathise with others, many staff members made me aware of poor working practices and the covering up of criminal activity which was allowed to take place within Simon Community schemes, with the full knowledge of senior management.  Along with the decision to terminate my contract for raising health and safety concerns and unsafe working practices, I believe this places a question mark over the Simon Community (as it is currently structured) in relation to its fitness to practice as a publically funded social enterprise”.

 

(2)              Mr Dennison’s response was courteous on 5 February asking for detail of the alleged criminal activity:

 

“I take allegations and accusations of criminal activity and management cover up very seriously.  I would like you to please outline clearly and specifically what knowledge you have of criminal activity in Simon Community NI.  Given the seriousness of these allegations I would ask that you respond to this as a matter of urgency”.

 

(3)              The claimant unreasonably interprets the Dennison email as bullying and intimidatory in an email of 5 February.

 

“It is easy to attempt bullying tactics such as I perceive your email to constitute”.

 

(4)              Mr Dennison’s response states:

 

“Dear Paul

 

Thank you for your reply.

 

I am in no way trying to employ bullying tactics, I merely want to provide factual accuracy.

 

I note that you haven’t provided any further information in relation to your allegation of criminal activity within Simon Community NI.  I would ask again that if you are privy to information on this type of activity then you inform us of it immediately.  Because of the seriousness of the allegation, I am content to contact the PSNI and ask them to speak to you directly.

 

Yours sincerely

 

Jim”

 

79.      The following are the protected disclosures relied upon as outlined in submissions by Mr Potter together with the parts of the email referred to. 

 

Disclosure 1

 

80.     The claimant raised failure to ensure safe practices were in place to enable personal boundaries between staff and clients to be respected and failure to ensure safe practices were in place to enable observation of the common room in the following part of his email:

 

                        “Personal Boundary Issues

 

                        I brought to your attention the lack of any method of observing the common room, ie, CCTV.  I believe this to be an issue because staff have a duty to maintain professional boundaries when working with young and vulnerable people (from this point on I will use the term ‘client’).  The common room is an issue of concern due to there being no method of observing this area if it is being used by a client with a member of staff present, unless both members of staff are present which leaves the office unattended.  It was pointed out to you that there were also two heavy fire doors separating the common room from the nearest observable common space outside of the common room itself.  This could dampen sound and cause a shout for help to go unattended.  You responded that you felt there was no need for a method of observation in the common room and you would look into whether or not the heavy fire doors could be jammed open in order that if a staff member or young or vulnerable people needed help, they could be heard if they were to shout out, although I did at the time point out that this would be a breach of health and safety regulations.

 

            You took issue with me for suggesting putting a camera in the common room saying you felt it was an invasion of privacy and seemed to suggest that I was proposing to surveil the clients.  I found this offensive but did not respond at the time to the remark.  During your visit you seemed concerned that more client contact was needed and you suggested one of the A&S workers taking a client out for a walk while leaving one member of staff on scheme.  It was pointed out to you that it was a requirement for two staff to remain on scheme at all times.  You stated that you thought this would be OK as long as “it wasn’t for hours at a time”.  This in insufficient clarification to me and I would need to have clear written guidance in order to maintain clarity of purpose and protect clients and staff from unwittingly causing professional boundaries to be breached.”

 

81.      Our principal findings on this relate to the claimant’s apparent lack of appreciation that the Unit was the clients’ home (rather than some sort of secure facility) and relate to the fact the claimant was new to the job:

 

(i)        The claimant said that there was no method of observing residents in the common room due to a lack of CCTV in the common room as he connected this to a health and safety risk if there was an attack by a resident.  We find that he has not shown that he reasonably believed that the lack of CCTV tended to show that health and safety was likely to be endangered when he raised this verbally on 20 November 2015.  We therefore do not find it was protected in the verbal encounter nor in the written repetition in the email. There was no evidence that it was reasonable for the claimant to believe this when he was new to organisation and had not yet been familiarised with clients or procedures.  This is not a protected disclosure in the email particularly given the Ms McAlister’s response to the claimant when he raised this verbally about this being inappropriate given that the residence was the clients’ home.  This was the claimant’s opinion.

 

(ii)       That there was a health and safety risk because of heavy doors to the common room and therefore a risk to staff and users if there was an incident and shouts for help could not be heard.  There was no evidence that it was reasonable for the claimant to believe this when he was new to organisation and had not yet been familiarised with clients or procedures.  At the time of the verbal disclosure, he had no reason to believe that this might actually happen in the absence of CCTV.  Ms McAlister’s explanation was clearly not accepted by the claimant.  His repetition in the email lacks reasonable belief given her explanation.  This was the claimant’s opinion.

 

 

(iii)      The claimant’s view that if one member of staff took a resident out for a walk that this would leave only one person on site.  We had no evidence that this would amount to a relevant failure and therefore find it is not a protected disclosure.  This was the claimant’s opinion.

 

(iv)         The breaching of professional boundaries point was an unspecified point and we find that it is insufficient to amount to information especially given our findings that there was not a “no-touch” policy in this organisation.  (see below).

 

Disclosure 2

 

82.      The claimant raised failure to ensure that a risk assessment had been carried out and safe practices were in place for staff to enable staff to perform enhanced observation in the following part of his email:

 

                        “Personal Boundaries/Enhanced Observation

 

            “I raised the issue of enhanced observation because during the course of my shadowing staff I was made aware of the requirement of staff to carry this out.  I asked staff if there had been any training in order to carry this out safely and whether this procedure had been ‘risk assessed’.  I was told that staff were unaware of any.  You stated that a risk assessment had been carried out but could not direct me to either a source where I could see the risk assessment or the procedures put in place in order to protect clients and staff members.

 

                        I pointed out to you that I felt that without a proper risk assessment followed by appropriate procedures being put in place that this was, in my view, an unsafe practice which could result in injury to staff and could cause serious issues with the safeguarding of personal boundaries within the scheme, for both staff and the residents.  It has since been brought to my attention that a member of staff at another scheme has recently been assaulted by a client whilst carrying out enhanced observation”.

 

83.      Our finding on this risk assessment issue is that this does not amount to protected disclosure as it is a mixture of a request for clarification and an expression of opinion.  In essence the claimant asked for sight of a risk assessment apparently to prove to him that one had been done.  The respondent’s response was that a risk assessment had indeed been carried out and thus provided clarification.  This is a reflection of the fact that the claimant was new to the organisation. 

 

84.      It was not reasonable for the claimant to insist on sight of the risk assessment and insisting on seeing it does not amount to a disclosure of information.  Mr Potter’s point was that this “touched a raw nerve” for Ms McAlister and explained her adverse reaction to him.  We reject the claimant’s case that Ms McAlister reacted in any inappropriate way to him.

 

85.      The claimant conveyed hearsay about someone on another scheme allegedly being assaulted.

 

86.      Stating that Ms McAlister was becoming “increasingly agitated” was the claimant’s opinion and/or did not amount to information that tended to show a breach of a legal obligation.

 

Disclosure 3

 

87.      The claimant raised failure to ensure safe practices were in place as regards the facilities for cooking with specific regard to ensuring respect for personal boundaries between staff and clients in the following part of his email:

           

                        “You raised the issue of cooking with residents, however when I attempted to explain that the existing facilities for doing this safely whilst maintaining personal boundaries were inadequate you were already becoming increasingly agitated so, the issue was not explored any further.

 

            My feeling is that the existing facilities within the scheme are unsuitable to be used by staff and clients at the same time due to the narrow galley style layout of the kitchen areas.  It would in my opinion be very difficult if not impossible to maintain the current guidelines on invading personal space (several source guidelines) which is to allow 2 to 2.5 feet between client and professional”.

 

88.       Our findings on this issue are that there is no protected disclosure as this was an expression of opinion and/or a request for clarification.  We so find for the following principal reasons:

 

(i)           The claimant expressed a “feeling” and “opinion” about personal boundaries because the kitchen was small.  There was a distinction made by him between personal boundaries and professional boundaries any significance of which was not explained to us by the claimant’s side.  Mr McClelland’s evidence in his report (which we accept) was that the claimant mistakenly conflated the two concepts and that this indicated that he needed more experience shadowing colleagues and learning good practice.  There was no challenge by the claimant to the respondent’s evidence that there did not exist in the respondent’s organisation a “no touch policy”.  It was not reasonable for the claimant to believe this at the time given that he was just in the organisation and he took no steps to find out what the policy was about being in close proximity with clients in what was effectively their home. 

 

(ii)          The burden is on the claimant to prove that expressing his feeling and opinion amounted to communication of information in which he had reasonable belief.  We find that expressing that opinion and feeling before he found out what the policy was did not amount to a disclosure of information.  It is our finding that he has failed to discharge the burden on him as, on the evidence before us, being in a position where you might touch residents was not necessarily a problem in this organisation.

 

(iii)         In submissions Mr Potter stated that reference to the layout of the kitchen was primarily a risk assessment issue but was also a workstation issue in relation to health and safety regulations.  No further specifics of the latter point were given, it was not explored in evidence and we are therefore not persuaded that the claimant has proved a protected disclosure on this point.

 

 

Disclosure 4

 

89.      The claimant raised the issue of failure to ensure staff are properly trained to carry out risk assessments on clients in the following part of his email:

 

                        “Risk Assessments

 

During my shadowing/induction I have become aware that A&S staff carry out risk assessments on young and vulnerable persons.  Although I attended a session on risk assessment as part of my induction as an A&S worker, I do not consider this to be adequate training for what I consider to be an important and complex process.  The person delivering the training stated they were saying not a qualified trainer and subsequently delivered a power point presentation saying the whole presentation could be emailed to us as a lot had been skipped through.

 

            I informed you that I did not feel that staff were adequately trained to carry out risk assessments on clients as there was no common assessment tool being used; in previous training with an NHS employer the need for a common tool to be  used when risk assessing was very much an important factor in order to maintain consistency and as much as possible maintain an objective approach to risk assessment, I was aware by the body language that you were displaying, that you were becoming exasperated by my continued requests for clarification on these matters; I am sorry to say that when you stated to me that you “didn’t even know what I had just said to you” I became seriously concerned about the position that I would be placed in when recording a risk assessment on a client whilst working for the Simon Community as an A&S worker in 242 Antrim Road”.

 

90.       Our finding on this is:

 

(i)            The claimant’s opinion that the training he had received on risk assessment on clients was inadequate as no common assessment tool was used and the trainer had (according to the claimant) said that he was not a qualified trainer.  This is not a protected disclosure relating to the risk assessment legislation - it is an expression of opinion based on his account of the practice in his previous job and a critique of training coupled with a request for clarification.  The claimant actually states that this was his “continued requests for clarification on these matters”.  Alternatively it is a complaint by the claimant that training was inadequate.

 

(ii)          The reference to Ms McAlister’s reaction is not a protected disclosure as there is no apparent link to relevant failure.

 

Disclosure 5

 

91.     The claimant raised failure to have an accident book in place constituting a breach of health and safety law.   Mr Potter agreed that it was common case that there was an incident book but the claimant’s point was that there should be a separate accident book.  The relevant part of his email set out below:

 

“General Health and Safety

 

“242 Antrim Road employs over five staff, therefore an accident book should be on site at all times, this is separate to recording of incidents and is a requirement by law.  When I brought this up you argued I was incorrect.  You specifically stated (witnessed) that, ‘there are no accidents here, only incidents”.

 

92.       Our finding on this is that this does not constitute a protected disclosure.  It simply repeats the discussion the claimant had with Ms McAlister and the claimant did not accept her response.  No evidence was presented to us that it was a requirement to have an accident book which should be separate to an incident book and thus that this disclosure related to a category of relevant failure.  

 

93.       Mr McClelland’s evidence in his report was that evidence of accident recording was presented to the claimant.  The respondent’s witnesses were not challenged on their assertion that the claimant was incorrect on this and that accident recording was encompassed in incident recording.  The claimant has therefore failed to prove a key fact which relates to the reasonableness of his belief.  It is up to the claimant to prove he reasonably held his belief based at the time on something more than his assumption.  We find that he has failed to do so and therefore his claim that this is a protected disclosure fails. 

 

Disclosure 6

 

94.      The claimant raised failure to ensure a safe system of work to deal with health hazards associated with forms of waste and this was later dealt with by a deep clean of a room following Mr McClelland’s investigation.  The relevant part of the email in that regard is as follows:

 

      “Other general issues were brought to your attention with regards to staff members being expected to clean after clients leave their accommodation in extremely poor condition in relation to cleanliness and human waste products. 

 

      I informed you that there were health and safety issues surrounding the safe disposal of any article that has been soiled with bodily material such as faecal materials and dangers to staffs health regarding contracting serious health conditions when handling things of this nature, you made reference to a pack of some sort that contained an apron, which I nor any staff I had been in contact with were aware of.  Again you were becoming exasperated with me for raising these issues, to the point where I perceived your attitude to be actually hostile toward myself.

 

      So that you are aware of the issues I would state the following;

 

      Offensive/hygiene waste (previously known as ‘sanpro’) while not classified as clinical waste still presents a residual health risk which should be assessed by a suitably qualified person, and after being assessed appropriate precautions should be implemented.  Hazards associated with offensive/human hygiene waste include:

 

      Skin/eye infections (conjunctivitis)

      Gastroenteritis (includes stomach cramps, diarrhoea and vomiting).

 

      There is currently no safe system of work in place to deal with the health hazards associated with this type of waste.

 

      This, obviously has implications for a client creating this type of hazard as regards their own health and well being”.

 

95.      Our finding on this that it does not contain a protected disclosure.  In relation to a hazard to health and safety related to handling items soiled with human waste, the claimant acknowledged that he was told about packs containing an apron but his response was that he had not heard of these.  This reflects the fact he was new to the organisation.  We find that it was not reasonable for the claimant to believe that the system in operation was inadequate and that it tended to show a breach of health and safety before he sought information from the employer about this.  The claimant then raises a point about no safe system of work and no proper risk assessment of this.  This is his opinion, a bare allegation and a request for clarification. 

 

96.      In both the verbal disclosure on 20 November and the email of 22 November, the claimant’s point was about risks to staff to staff in handling stained material/cleaning dirty rooms.  This was his general opinion in circumstances where there were protective products and a policy in place.  Whilst the claimant may have believed this, we find that it was not reasonable for him to believe that it tended to show a relevant failure as he was new to the organisation and had verbally been told what was available.

 

97.      We therefore find that the claimant did not make a protected disclosure that cleaning a room that might have been stained by human waste and/or disposing of stained products was likely to be a risk to Health and Safety. 

 

Disclosure 7

 

98.      The claimant raised an issue in relation to an alleged direction to “turn a blind eye” to the use by residents of drugs on the premises in the following part of his email.  This disclosure was characterised by Mr Potter as the claimant reasonably raising a concern because the policy and practice was unclear.  We emphasise at this point that raising a concern does not attract protection unless it involves a disclosure of information.  The email states:

 

                        “Another area that I was unable to clarify due to the now palpable hostility being directed toward me was that of the procedures and protocols that should be adopted when drug use on the premises was suspected.  During one session in Franklin Street Simon Community office, when the head of harm reduction was inducting us on the Simon Communities attitude towards this, we were told that if we suspected drug use by residents, we should not investigate our suspicions and make a definite effort not to catch residents out.  This being that “isn’t it safer for them to be using in a safe environment such as their own flat rather than on the street.”

 

                        I had intended to clarify the policy with regards to 242 in the light of the fact that children under the age of 18 are on the premises but I could not do so for reasons mentioned above”.

 

99.      We find that   this was the claimant requesting clarification and therefore did not amount to conveying information.

 

100.    We accept entirely Mr Ryan’s evidence on the drug policy and we find that it was the claimant’s flawed understanding which was the issue here.  There was a valid distinction drawn by Mr Ryan between those clients who were suspected of being under the influence of drugs on the one hand and on the other hand those who might be seen taking or dealing with drugs.  The latter group would be reported to the PSNI, whereas the former group would be dealt with in another way which might not involve the PSNI.

 

101.    Our finding on what really happened (ie whom we believe) relates to the accuracy or otherwise of the claimant’s account.  This is a tool for us to assess the reasonableness of his belief at the time he raised these issues.  Our findings on this point also undermine the claimant’s reliability as a witness generally.

 

102.    In raising this issue about the drug policy we therefore find that the claimant did not have objectively reasonable belief.  The claimant was requesting clarification of his own flawed understanding and thus did not hold the necessary reasonable belief in the truth of the facts underpinning his allegation especially as for this organisation to adopt such a position would be very surprising ie that workers should ignore illegal acts witnessed by them.  We stress that we accept Mr Ryan’s emphatic denial of the claimant’s evidence on this.  We do not accept that the claimant raised this with the trainer at the time or immediately afterwards.

 

103.    We find that this does not amount to the communication of information nor of an allegation sufficient to amount to a protected disclosure.  It amounted to the claimant’s opinion and his request for clarification following this erroneous understanding of the points put forward at the training.

 

Disclosure 8

 

104.    The next concern raised by the claimant was that the respondent was permitting or requiring staff to work too many hours causing health and safety concerns and this is raised in the following part of the email.

 

105.    Mr Potter’s point on this was that the claimant was raising observations of factual failings that he perceived and that they fell entirely within the concept of reasonableness which was both a subjective and objective concept.  He submitted that the tribunal in assessing reasonableness can take into account the context, that is, where the respondent was failing in relation to its practices and procedures as established by audits by the Housing Executive, Supporting People and RQIA.  We pause here to note that the claimant knew nothing about these audits at the time of the alleged protected disclosures.  Mr Potter did not point us to anywhere in the documents relating to those audits that referred to this issue of staff working inappropriate hours.    

 

106.    The email states:

 

                        “Staff in 242 are currently working for at least 12 hours at a time with a one hour period of ‘downtime’.  I have referred to this period as downtime rather than an unpaid rest period due to the requirement for staff to remain on site during this period as they are effectively on call due to the requirement for double staffing.

 

                        I have also been made aware of several instances of staff having to work for a full 24 hour period, during which time they are expected to remain alert and competent enough to discharge their duty of care to the vulnerable and young people who are resident in the scheme.  This seems to have been a result of there being a ‘non effective’ contingency plan in place for instances where planned staff cover fails; this should be a completely foreseeable occurrence for an organisation providing 24 hour cover, especially important when responsible for clients who can present with unpredictable and serious behaviours.

 

                        I believe that staff driving home after such a shift may have invalidated their insurance cover by working for this period of time without sleep.  They could be liable to prosecution in the event of an accident.  Now that you as an employer have been made formally aware of this having occurred, unless you take every measure in your power to ensure that it does not reoccur, you could also be liable to prosecution. 

 

                        As an employer it is your responsibility to ensure the physical and psychological well being of the staff you employ.  If you fail to do so you can be leaving yourself open to personal injury claims from staff and enforcement action by the HSE”.

 

107.    We find that the allegation about lack of planning has not been shown by the claimant to have a link with a relevant failure and is therefore not a protected disclosure.

 

108.    The claimant in his statement says he witnessed staff working long shifts but confirmed in cross-examination that he based this assertion on hearsay from colleagues.  It is our finding that the claimant was relaying hearsay and staff disgruntlement as we had no evidence that he took steps to find out if this in fact occurred.  Whilst it is not necessary for the claimant to prove the truth of the matter it is a factor in our deliberations as to whether or not he is simply repeating what he has heard from a third party without taking steps to verify it.  We had no evidence that he inquired as to whether or not it was true and we take account of the fact that the claimant had only recently started with the respondent, had worked only 4 shifts at that point and he was not alleging that he had experience of working such long hours himself.

 

The audits

 

109.    The breach of a legal obligation relates to criticism in three audits by the NIHE, its organisation Supporting People, and RQIA.  It was undisputed that the audits identified problems with risk assessment processes and training.  Mr Potter submitted that the respondent was therefore especially sensitive to the claimant raising such issues because they echoed criticism revealed by the audits.  It is clear from the documents to which we were referred that things were in hand and improvements were noted. 

 

110.    The NIHE Supporting People division conducted a performance visit on 28 July 2015 and on 29 September 2015 the NIHE did an unannounced inspection.  This resulted in a detailed report making various recommendations including training in several areas including risk assessment and management.  No adverse comment on the location of the common room was highlighted to us in that report.

 

111.    The result of the inspection of 28 July 2015 was that there was an embargo on new admissions to Antrim Road because areas for improvement were identified.  This was one of the reasons underpinning Mr McClelland’s decision to move the claimant from that unit.

 

112.    The RQIA report, following an inspection on 25 August 2015, identified the following matters which appear to be relevant to this case:

 

(1)       Issues with risk management assessments and processes in relation to residents’ risks (service users);

 

(2)       Training requirements relating to risk assessments;

 

(3)       Positive comment on the existence of the common room;

 

(4)       Some furniture and carpets needed replaced and decor was to be maintained regularly.

 

113.    The respondent’s report of improvements following the Supporting People inspection and an associated action plan were prepared by Ms McAlister dated 20 October 2015.  It identifies (amongst other things) several steps being implemented regarding practice and procedure, and planned training in several areas, including risk assessment.  It also notes that a flat was converted into a common room on an interim basis.

 

114.    We emphasise at this point that the claimant only started with the respondent on 9 November and started his shifts some weeks later.  The claimant had no knowledge of the audits and the respondent’s response at the time of the three disclosure events.

 

115.    We recognise that the fact that the issues uncovered by the audits were in hand does not counter the claimant’s argument that the concerns raised by the claimant amounted to protected disclosures.  We also recognise that the claimant can raise something that the respondent already knew.  The claimant did not know (ie the respondent did not allege otherwise in the tribunal) that the audit had picked up some of these things that he had raised.  As a consequence he did not know they were in hand and this would not therefore detract from the reasonableness of his belief.  However we find that the claimant fails on other grounds as set out in this decision.

 

Disclosure event 3: McClelland meeting 3 December 2015

 

116.    The third disclosure event relied upon is this meeting with Mr McClelland.  We accept that Mr McClelland’s note reflects the content of the meeting.

 

117.    The note by Mr McClelland relates to the issue of the claimant’s subjective belief ie did the claimant believe at the time in the truth of the factual basis of the issues raised and that he had subjective belief that they tended to connote wrongdoing or potential wrongdoing.  We note that the claimant does not have to have in mind a specific relevant failure nor does he even need to know that a relevant failure might be engaged.

 

118.    The note shows us the focus of his concerns at the time of McClelland’s meeting with the claimant on 3 December namely:

 

      (1)       That the common room was isolated and heavy doors would muffle sounds if someone shouted for assistance.

 

(2)       A CCTV issue ie lack of one in communal areas.

 

(3)       The lack of protective clothing for cleaning up.

 

      (4)        Training on enhanced observation.

 

      (5)        That Ms McAlister was defensive when the claimant raised matters with her. 

 

119.    We note that at that stage there was no mention of any risk assessment issue.  We find that those listed at (1)-(4) are not protected disclosures for the reasons set out above.  That set out at (5) does not relate to a relevant failure and is therefore not a protected disclosure and also relates to the claimant’s oversensitivity and misperception of Ms McAlister’s response to him.

 

120.    The claimant showed Mr McClelland a specific room that was dirty with human waste and had not been cleaned properly and a deep clean was conducted after
Mr Clelland’s report of 21 December 2015.  Showing a dirty room in circumstances where he had been told about cleaning packs which included protective clothing, did not amount to a protected disclosure principally because it was not reasonable for the claimant to believe that it tended to show a relevant failure.

     

Detriment

 

121.    The claimant relied on the following alleged detrimental acts for both the protected disclosure and DDA claims.  We find that the three detriments alleged do not amount to detriment for the principal reasons set out below.

 

Detriment 1

 

122.    The first detriment relied upon by the claimant was the move to Cliftonville.  It was conceded by Mr Potter in submissions that the move of itself was not necessarily a detriment because there had been problems in Antrim Road.

 

123.    The claimant accepted that he was better off in Cliftonville than in Antrim Road.  We accept the reasons given by Mr McClelland for the move and the claimant did not disagree with this reason in the tribunal.  We find that the decision to move him was not on grounds of his having made a protected disclosure nor on grounds of his disability.  The move was, at most, a consequence of any alleged disclosures and not on grounds of them as the concerns raised by the claimant revealed the extent of his lack of progress due to the set-up in Antrim Road and the need for more training and support.  The claimant has failed to prove detriment on this point.

 

Detriment 2

 

124.    The second detriment relied upon by the claimant was that the claimant was not given clients to manage.  The claimant’s witness statement was silent on this point.  In cross-examination the claimant raised for the first time the point that unnamed workers became key workers for clients within the first 3 weeks in other schemes.

 

125.    The late introduction of this point tainted the claimant’s reliability and credibility for us.  We therefore accept the evidence of Ms McCandless that no-one was given clients to manage within the first 4 weeks of their induction.

 

126.    This did not amount to a detriment because we find that employees did not get responsibility for their own clients within the first four weeks.  There was therefore no less favourable treatment as others would have been treated the same within their first 4 weeks.  Ms McCandless started the claimant’s induction again (having been directed to do so by Mr McClelland) given the problems that there were with the set-up in Antrim Road.  We accept her evidence that the claimant had not completed his induction and that she had not treated him any differently than others she had managed who had not finished their induction and were thus not given their own clients.

 

Detriment 3

 

127.    The third detrimental act relied upon was that there was failure to utilise informal counselling, a capability process and/or a disciplinary process as an alternative to proceeding to immediate dismissal.

 

128.    Mr Potter outlined the characteristics of the hypothetical comparator in this regard who was someone properly managed including having their probation taking seriously so that any issues raised with the person could be addressed or if not they would be escalated.

 

129.    The purpose of a probationary period is for the employer to assess the employee and whether they are suitable.  It involves the employer having the ability to sack someone (so long as the reason for dismissal is not unlawful) without going through a lengthy process.  We find no detriment because there was no evidence indicating that the comparator would have been treated better than the claimant in that he would have been put through capability and/or disciplinary process rather than being sacked.  We find that a comparator whose attitude and behaviour was similarly of concern to managers would have been sacked in the probationary period rather than subjected to a more lengthy process.  We so find because one of the points made in the dismissal letter was that the claimant’s behaviour and attitude were: “incompatible with the values and standards of the Simon Community”.  We find this to be a clear statement that such an attitude and behaviour were fundamentally at odds with the organisation.

 

130.    We also note the following extract from the respondent’s contract of employment:

 

“PROBATIONARY PERIOD

 

Your employment is subject to a probationary period of six months, during which time your performance and conduct will be monitored.  The Simon Community reserves the right to extend your probationary period should this be considered necessary by your Manager.

 

In the event of unsatisfactory progress, your employment will not be regarded as confirmed, and will be terminated either during or at the end of the probationary period in accordance with the provision on notice set out below.

 

 

NOTICE OF TERMINATION OF EMPLOYMENT

 

Simon Community will give (except in cases of summary dismissal) one week’s notice of termination if an employee has been employed for less than 2 calendar years”.

 

131.    The respondent was not therefore in breach of any of its procedures in monitoring the claimant’s progress and terminating his employment in the probationary period.

 

132.    In submissions Mr Potter raised for the first time the following as detrimental acts relied upon:

 

(1)       That the claimant was moved to Cliftonville as this was part of his being “managed out” because he was placed with a management team of Mr Jones and Ms McCandless and was managed out by them and Ms Laverty; and,

 

            (2)       That he was no longer being taken seriously as a probationer and he was not being properly managed in the one-to-one meetings as his issues were not dealt with.

 

133.    The latter two detrimental acts  were not included in the agreed issues document put before the tribunal, were not put to the respondent’s witnesses to any meaningful extent and they only appeared in detail as part of the case in submissions.  We reject the claimant’s points on relation to them given our assessment of the witnesses, our findings on the claimant’s attitude and behaviour, and given the fact that the claimant was a probationer.

 

Was the claimant moved on grounds of having made a protected disclosure?

 

134.  If we are wrong and one or more of the three acts relied upon did amount to a detriment, we record our findings on this point below.

 

135.    Mr Potter relied upon the following line in paragraph 4 of Ms Laverty’s statement to show that the claimant was being moved because he had raised issues: “As the claimant was being moved to a different site to see if the issues could be resolved”.  Ms Laverty’s evidence was that this referred to issues raised by McClelland in his report regarding the claimant’s need for further training and support.  We accept this given that we accept Mr McClelland’s evidence and the content of his report.

 

136.    Mr McClelland’s reasons for the move were also set out in his report to managers of 21 December 2015 and can be summarised as follows:

 

(i)        The claimant had an inadequate understanding of policies and procedures relating to risk assessment and risk management process;

 

            (ii)        CCTV was not appropriate for several reasons especially when it would amount to surveillance of clients in their home;

 

            (iii)       The claimant’s misunderstanding of professional boundaries (the claimant conflated this with personal boundaries) especially regarding physical proximity with clients;

 

            (iv)       The temporary absence of the full-time team leader in Antrim Road hindered the claimant’s development in his induction period;

 

            (v)        The claimant had limited experience of working with clients in Antrim Road because there were so few clients in residence, they had their own key-workers and the staff team was incomplete;

 

            (vi)       Cliftonville was more suitable because it was fully operational with a Team Leader in post and an experienced settled staff team; there were more clients with complex more diverse needs; and the claimant would therefore have the opportunity to be a key-worker for his own clients when he was ready.

 

137.    We find that these reasons are not connected in the requisite way to any concerns raised by the claimant as the move was as a consequence of those concerns being raised rather than on grounds of the claimant having raised them.  The concerns raised by the claimant exposed the extent of his lack of knowledge of the job, the organisation and relevant policies and procedures.  The move and the reasons for it connote to us a new employee who was being properly managed in that he was moved to further his induction and development and we reject any suggestion by the claimant’s side to the contrary.

 

Unfair dismissal claim

 

138.    The issue here is whether the necessary causal connection exists between any protected disclosure and the dismissal.  As we have not found any disclosure to constitute protected disclosures for the reasons set out above, the claimant’s claim fails.

 

139.    The claimant’s side pointed to the following matters of concern leading up to the dismissal:-

 

(1)          Evidence was gathered on the claimant’s behaviours but these negative behaviours were not put to him by Ms McCandless despite one-to-one meetings taking place during the period she was compiling this list.  The
one-to-one meetings with Ms McCandless were on 12 January 2016 and
25 January 2016.  The claimant’s first shift was on 4 January 2016 when he first met Ms McCandless.  This points to a decision to get rid of the claimant rather than to inform him that his behaviour should change. 

 

(2)       Unknown to the claimant, Ms McCandless made notes, at the behest of Mr Jones, from mid-January which was very soon after the claimant started at Antrim Road.

 

(3)       There was a meeting on 29 January 2016 attended by Mr Jones, Ms Laverty and Mr McClelland when the decision to dismiss because of behaviour was taken.  There was no note of this meeting.  The behaviour in issue was his behaviour at the meeting on 20 November 2015, the tone of his e-mail of 22 November 2015 and his negative attitude in respect of specific instances which were mentioned to McCandless by colleagues in confidence.

 

(4)       The meeting on 2 February 2016 was convened at the claimant’s request and he thought that his concerns were going to be discussed  In fact it transpired that he was told at the meeting that he was being dismissed for failing his probationary period.

 

(5)       He was not spoken to about his adverse behaviour at any point by Mr Jones or anyone else until the meeting when he was dismissed.

 

140.    As the claimant did not have sufficient service for an “ordinary” unfair dismissal claim the only relevance of these matters is in relation to the claim of dismissal and whether or not they support the claimant’s argument that the principal reason for his dismissal was the fact that he had made protected disclosures. 

 

141.    As no protected disclosures were found by us we find that the principal reason for the dismissal was not the raising of any disclosures.  We find that the respondent’s managers regarded the claimant’s attitude and behaviour as negative as he repeatedly questioned policies and procedures and persisted with that approach despite explanations being given.  A decision was therefore taken to dismiss him during his probationary period because he was not suitable to work for the organisation.  This was principally based on his challenging of managers with aggressive language and his exaggerated perception of risk even after explanation and clarification were provided.  He persisted with, and escalated, this behaviour despite his lack of knowledge and experience in the job and organisation.  As the claimant was a probationer managers were not bound to go through a remedial or disciplinary procedure. 

 

142.    We find that a telling example of the claimant’s behaviour was the way he dealt with Ms Laverty about how he would apply to move to another scheme location.  We find that it is clear from the emails and oral evidence that her courteous outline to him of the correct process led to repeated challenging emails, difficult telephone calls to her staff which meant that she dealt with it herself, and a demand by the claimant for investigation into whether the he had acted appropriately even though he had not been accused of that.  Her final email on this is dated 22 January 2016 and states: 

 

“Paul

 

Thank you for your e-mail and I am including Simon Jones the Head of Service responsible for Cliftonville Avenue so that this can be dealt with via your Team Leader and himself.

 

I am not going to get into discussion across e-mail about this as that is also entirely inappropriate!  If you read my e-mail again it states that “I would also ask you not to discuss any potential or current applications for transfers with staff from other sites; that is entirely inappropriate!”

 

This is not saying that you have acted inappropriately - as I have said above I will not get into this across e-mail - there is a process to follow for transfer applications and as I have said previously you need to follow the process as outlined in the Procedures Handbook.

 

Regards

 

Siobhan Laverty

 

Director of Finance and Business Support”

 

143.    The relevance of Ms Laverty’s evidence about the claimant repeatedly coming back to her about his transfer to Portadown was (on Mr Potter’s submission) that it showed that there was no patience for the claimant well before the transfer request.  However we find that it demonstrates the point that the respondent was making namely that the claimant had a tendency to challenge managers inappropriately even when he received explanations.  On this point he escalated things invoking an investigation. This in our view echoes the way he dealt with Ms McAlister.  

 

144.    We find that this email from Mr Laverty and the fact that she passed it not only to the claimant’s team leader but to Mr Jones too, shows that the respondent’s managers had serious misgivings about the claimant’s suitability.  We therefore find that there was nothing untoward in managers using the probationary period to end the claimant’s employment.

 

145.    The issue with Ms Laverty was one of the 3 reasons given for the dismissal in the letter of dismissal, was clearly a key point for the respondent’s managers and was unrelated to any alleged protected disclosures.  This supports our finding that the claimant’s attitude and behaviour were the problems for the respondent’s managers, ie repeated, unreasonable challenge and negativity in the face of explanations together with unreasonable escalation of issues.  This was the reason for the dismissal and was unrelated to any protected disclosures.

 

Disability discrimination

 

146.    The impairment in issue was the claimant’s mental health issues.  Mr Potter specifically disclaimed reliance on the back problems.  The medical evidence from Dr Bell the psychiatrist who compiled a report for the claimant’s side for these proceedings, outlines mental health issues in the form of anxiety and depression of a long-standing nature.

 

The duty to make reasonable adjustments

 

147.    The PCP relied upon in this case was the requirement to reach a standard in the probationary period.

 

148.    The first issue for us is whether or not the claimant suffered a substantial disadvantage because of his disability of depression due to the application of the PCP (the requirement to reach a standard in his probationary period) to him.

 

149.    The medical evidence points to a personality issue rather than an issue connected to his disability in relation to the issues that led to the claimant’s treatment namely repeated questioning and negative attitude and behaviours (see para 158 below).  There is therefore no medical evidence that the impairment relied upon caused the claimant to be at the requisite substantial disadvantage.  The reasonable adjustments claim therefore fails on this point.

 

150.    Even if the medical evidence had supported the claimant on this point the use of a comparator would have been necessary to see whether the duty to make reasonable adjustments arose at all.  The comparator would have been someone without the claimant’s mental health disability who displayed a negative attitude and behaviours and repeatedly raised concerns challenging managers despite being new to the organisation and being given explanations.  In addition, that person as a result of manifesting those behaviours would have been regarded by managers as not reaching the standard in the probationary period.  There was no evidence before us that they would have been treated better than the claimant.  It is for the claimant to prove the requisite substantial disadvantage and he would not have done so.           

 

151.    As we have found that the duty to make reasonable adjustments was not triggered at all there is no requirement to look at the suggested adjustments put forward by the claimant’s side.

 

Knowledge point

 

152.    The second submissions hearing took place on 5 January 2017 to address specifically the knowledge point in relation to the direct disability discrimination claim and the claim of failure to make reasonable adjustments under DDA.

 

Extent of knowledge

 

153.    The knowledge to be imputed to the managers extends only to what the claimant revealed in the health questionnaire, to the OH practitioner, and at the meetings with Ms Dunne and Ms Greer.  The claimant revealed that he had a back problem and had mental health issues relating to the back problems and the implication from all the evidence on this point is that the two were linked.  The claimant clearly revealed that he takes medication to control his moods.  There is no reference to other detail. 

 

154.    The extensive detail given to us in hearing does not therefore help us in assessing the knowledge the respondent had of the claimant’s disability and its effects on him at the relevant time.  None of that was revealed to the relevant officers of the respondent and the claimant candidly accepted, in cross-examination, that he purposely did not go into that level of detail because he thought that would render him unemployable.  It is not, therefore, the case that the full extent of the effect of the impairment and the disability is to be imputed to the employer as that was not revealed to its officers and agents.

 

155.    We accept that the managers who took the relevant decisions did not have actual knowledge of the claimant’s disability.

 

156.    However, we accept that the organisation had imputed knowledge of the claimant’s disability in the form of depression, given the extent of information provided at the time by the claimant to those individuals.  That information was that he had clinical depression of a longstanding nature which was controlled by tablets.  The issue of imputed knowledge is relevant to the claim of failure to make reasonable adjustments but it is not relevant to the claim of direct discrimination.

 

157.    We find there was nothing to alert the respondent to mental health issues that required further investigations (for example referral to OH) to see what reasonable adjustments might be required.

 

158.    The claimant stated that his pessimism and negativity was the reason for his dismissal.  There was no medical evidence before us to show that pessimism, a negative attitude, questioning managers and raising concerns as the claimant did, were features of the disability relied upon.  On the contrary, the references in the claimant’s medical evidence are to “personality issues” as stated by Dr Bell in his report: 

 

“This man has a personality which has some emotionally unstable traits.  This means that he has a Personality Type falling short of a Personality Disorder which means that he tends to be rather sensitive and can overreact to others but this is part of his personality make up rather that part of his mental illness.

 

During period of depression his impairment of concentration may adversely affect his interaction with other colleagues.  Mr Smith is not suffering from a Personality Disorder or a Psychosis which would substantially alter his perception of events.

 

Mr Smith’s Personality Traits may well have impacted upon how he went about raising issues with management but it is unlikely that his Anxiety and Depression would have interfered with this.”  (Emphasis added)

 

Knowledge and reasonable adjustments

 

159.    There are two limbs to the test for knowledge in relation to reasonable adjustments and it was agreed that the burden is on the employer to show that the exemption applies.  It is therefore for the employer to show firstly, that it did not know, and could not reasonably be expected to know, of the claimant’s disability; and, secondly, that it did not know or could not reasonably be expected to know that the disability caused him to be at a substantial disadvantage.

 

160.    As there were detailed submissions on the knowledge exemption we record our findings as follows.  The respondent is able to avail of that exemption, because the respondent proved the existence of the second limb of the knowledge point, namely that there was a lack of knowledge or constructive knowledge that the claimant’s disability placed him at a substantial disadvantage which was linked to the reasonable adjustments issue in this case.  Our reason for so finding relates to the absence of support for this in the claimant’s medical evidence.

 

Knowledge and direct discrimination

 

161.    We find that there was no direct disability discrimination as there was no knowledge on the part of the decision-makers of the claimant’s disability as set out below. 

 

162.    The knowledge issue is treated differently in relation to the direct discrimination claim compared to the reasonable adjustments claim.  Under the Reynolds case it is clear that knowledge in a direct discrimination case cannot be imputed to the decision-makers as the focus of enquiry in relation to the decision-maker’s actions is on their mental processes.  If decision-makers are unaware of any taint of discrimination on the information before them then they cannot be taken to have knowledge of that taint.  We specifically reject Ms Best’s submission that there is a read-across from the Reynolds decision to the examination of the knowledge issue in reasonable adjustments cases. 

 

163.    The first issue here is the knowledge or constructive knowledge to be attributed to the employer.  We find that there was no actual knowledge because the information was given to the HR manager who was then off sick when the claimant started.  Ms Laverty was not in post as HR head until December 2015 and first met the claimant in January 2016.  There was nothing in the claimant’s behaviour to alert the managers to the fact that the claimant suffered from any disability as his behaviour in issue related to his personality rather than any medical condition.  In line with Reynolds, knowledge of a disability gleaned by OH or Ms Dunne is not imputed to the decision-makers.  They were not therefore on notice (whether actual or constructive) of the claimant’s disability.  The claim of direct discrimination therefore fails.

 

Summary

 

164.    The rationale behind the whistleblowing protections is that an employee should in general feel free and safe to convey information about wrongdoing or potential wrongdoing to his employer without fear of reprisal.  In general an employer can normally expect an employee to wait until they are aware of relevant policies and procedures in the particular field before raising concerns of breaches of health and safety. 

 

165.    The concept of “responsible whistleblowing” alluded to in the authorities incorporates, our judgement, the idea that an employee should normally find out something about the way an organisation operates before accusing its managers of breaches of Health and Safety.  If however that employee has special knowledge and/or the concerns raised clearly point to health and safety breaches it may be reasonable for him to raise the concerns immediately without finding out what the relevant policies are in the organisation.  In our judgement it is a question of the degree of seriousness of the matters raised and the degree of any specialist knowledge.  As set out above, specialist knowledge was not a feature in this case given our findings.

 

166.    We find that there was negative attitude and behaviour by the claimant.  The claimant appeared fixated with the difficulties he perceived in Antrim Road and with the issues he had raised.  The respondent’s managers decided to dismiss the claimant whilst he was still in his probationary period as they reasonably formed the view that he was unsuitable to work for them.  Essentially the purpose of a probationary period is to see if the employee fits in the organisation and it was not unreasonable or untoward for the respondent in this case to conclude that the claimant was not suitable and to dismiss without going through a capability or disciplinary process.

 

167.    The claimant did not make protected disclosures and was neither treated detrimentally nor dismissed because of having made any protected disclosures.

 

168.    The duty to make reasonable adjustments did not arise and the claimant was not subjected to discrimination because of his disability.

 

169.    The claimant’s claims are therefore dismissed in their entirety.

 

 

Employment Judge:

 

 

Date and place of hearing: 5, 6, 7, 8 December 2016 and 5 January 2017 at Belfast.

 

 

Date decision recorded in register and issued to parties: