Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    1184/16

 

 

 

CLAIMANT:                             Hazel Scott

 

 

RESPONDENTS:                  1. Mace Express

                                                   2. Danielle

                                                   3. Robert George Symington

 

 

 

 

DECISION

 

The decision of the tribunal is that the title of the proceedings should be amended to name Robert George Symington trading as Mace Express Loughview as the respondent.  The claimant’s claim is dismissed against the respondent as the tribunal could not be satisfied on the balance of probabilities that the named respondent was the claimant’s employer.

 

 

Constitution of Tribunal:

 

Employment Judge (sitting alone):       Employment Judge Sheehan

 

 

Appearances:

 

The claimant appeared in person and represented herself.

 

The named respondents had not entered an appearance in response to service of the claim form submitted by the claimant.

                                                  

 

 

PRELIMINARY ISSUE

 

1.         The claimant on the first date of the hearing sought an adjournment to obtain relevant medical evidence concerning her health and the claim of disability discrimination in respect of the named respondents.  The lack of detail concerning the second named respondent and the person named as the claimant’s employer was raised with the claimant together with the benefit of obtaining further information which would enable the tribunal to record a decision against any of the named respondents.  At the outset of the second day of hearing, the second named respondent who had been a manager in the store trading as Mace Express Loughview was dismissed as a respondent due to the lack of a surname for the specific individual.  Mace Express Loughview was also formally dismissed as it is not a legally recognised entity.  The hearing proceeded against Robert George Symington trading as Mace Express Loughview and the title of the proceedings is amended accordingly.

 

SOURCES OF EVIDENCE

 

2.         The tribunal heard oral evidence from the claimant and from her mother, Clare Scott.  The claimant produced two bundles of relevant documents for the hearing; one bundle was designated “C1” and the other “A1”.

 

THE CLAIM AND THE RESPONSE

 

3.         The claimant brought claims for disability discrimination including direct discrimination in the termination of her employment and a failure by her employer to make reasonable adjustments.  At an early stage following the initial registration of the claimant’s claim with the Office of the Industrial Tribunal and Fair Employment Tribunal, the lack of specific detail as to the identity of the relevant employer was raised in correspondence with the claimant on more than one occasion.  The initial claim form detailed as respondents a Danielle with no known surname and Mace Express.  After repeated requests for the full name of the respondent identified as Danielle, an unless order was issued on the 5 September 2016 requiring the claimant to provide the full title of her employer as well as the full name of the second respondent before the 16 September 2016 as “The claim as currently worded does not identify any respondent on whom the claim can be served.  It is therefore defective”.  The claimant advised in writing that a Robert George Symington of a specific address should be named as owner of the Mace Express.  An order was made on 30 September 2016 joining Robert George Symington to these proceedings “without prejudice by the newly joined person to set aside the said joinder”.  The OITFET issued a further copy of the claimant’s claim to the named respondent at the address provided by the claimant.  A telephone call was recorded as received on 3 October 2016 from a male person at that address advising that he was “not Robert George Symington and knows nothing about him”.  The caller was requested to return the documents.  The documents were returned under cover of letter dated 4 October 2016 from a David J Bennett of David J Bennett & Co, an accountancy and registered auditor and Insolvency practitioner firm.  The letter indicated he had been an accountant for a Mr. Robert George Symington and provided the last address known to him for that person as well as a telephone number.  The claim form was sent out to that address and the form was not returned as undelivered nor was a response filed on behalf of that named respondent. 

 

THE FACTS

 

4.         The claimant was employed at Mace Express Loughview from 23 February 2016 to 7 March 2016.  The claimant was never provided with a main statement of terms and conditions of employment.

 

5.         The claimant applied for the post of sales assistant which was advertised online at www.jobcentreonline.com.  The job advert detailed the employer as Mace Express Loughview, located in Holywood.  Application for the post could not be made online but had to be collected from the store premises.  In the employer section on the advert there was provided an address for the retail premises, a telephone number and an email symingtonholywood1@maceni.co.uk.  The claimant collected an application form and returned later to the store with the handwritten form as well as a monitoring form.  The claimant did not retain or make a copy of her application form.

 

6.         The claimant was invited to and attended an interview with a person named Danielle, who introduced herself as the store manager.  The claimant never met her employer.  The claimant was offered employment on the basis of a contract for
12 hours per week, with shifts agreed to be usually 4 hours.

 

7.         The claimant has multiple medical conditions which have impacted on her day to day living activities since her early years.  She was the subject of hospital treatment from 4 years of age.  Her home and school had to facilitate physical adjustments to reduce pain due to her “joint hypermobility syndrome”.  Medical reports from her General practitioner, the most recent dated 14 February 2017, refer to additional conditions including chondromalacia patellae since the age of 4, Raynaud’s syndrome and fibromyalgia, the latter diagnosed in 2010.  The GP report describes these multiple conditions resulting in “a myriad of symptoms which include chronic pain, fatigue, muscle and joint stiffness, headache anxiety and insomnia.  The claimant is on medication long-term which at best has minimal impact on her condition”.

 

8.         The claimant’s day to day living activities such as cooking, travelling and moving physically from one location to another can be affected adversely depending on the joint pain in any one day.  Preparation of meals require assistance to be given to the claimant with turning taps, use of a can opener or knives as dexterity and grip of fingers are affected by the medical conditions.  The claimant is aware of the physical limitations her conditions can cause and has learned to listen to her body.  On past experience the claimant assessed that 4 hours per day, with rest days in between, as manageable employment conditions.

 

9.         The claimant agreed with Danielle to commence employment with three training days 23 to 25 February 2016 and then as rostered for the month of March 2016.  Unfortunately on the third training day, 25 February 2016, the claimant became ill at the workplace and terminated her shift about one hour early.  The claimant’s mother collected her from the workplace due to the level of nausea suffered at the time.  The illness was sufficiently severe that the claimant saw an out of hours Doctor who prescribed antibiotics and anti-nausea medication.  The claimant did not recover sufficiently from the illness to update her employer until 4 March 2016.  The claimant was not rostered for duty until 8 March 2016 but agreed at Danielle’s request to attend her workplace on 7 March 2016.  The March rota had included some shifts of 6 hours near the end of the month for the claimant.  Due to her illness the claimant had not queried those with Danielle before leaving work on
25 February 2016.   

 

10.       Between leaving work on the 25 February 2016 and the phone call the claimant made to her workplace on 4 March 2016, the claimant’s mother had a conversation with Danielle through an incoming phone call to the home telephone initiated by Danielle.  During that phone call there was a brief discussion about the six hour shifts allocated to the claimant.  The discussion concerned the claimant’s mother advising Danielle that due to the claimant’s disability she might require to be provided with a chair while sitting at the till for more than 4 hours.  The only medical condition mentioned on the telephone was fibromyalgia.  It was not indicated by Danielle that there was a problem regarding the provision of a chair or indeed the claimant’s current illness.

 

11.       The claimant attended the workplace for the meeting with Danielle on the afternoon of the 7 March 2016.  Danielle appeared to be holding the application form completed by the claimant when she advised that there was a problem with the form.  The issue was the claimant had indicated she was in good health on the form but her mother had advised Danielle of her disability.  The claimant referred Danielle to the monitoring form which she had also completed and advised she had declared her disability on that form.  Danielle insisted she had not seen that form.  Despite the claimant’s assertions that she was fit to discharge the duties required of this sales assistant post, Danielle advised they’d have “to leave you go”.  The claimant was handed an envelope with pay in cash for 7 hours that contained no indication of the employer or deductions for national insurance or income tax.

 

12.       The claimant was extremely distressed and upset over the termination of her employment and had increased difficulty sleeping for a couple of weeks immediately after her dismissal that required her to be prescribed medication for sleeping, a medication which she had not required since leaving school.  The claimant’s confidence was affected and it was not until the summer of 2016 that the claimant felt she began to pick up her confidence again particularly when attending job interviews.  She was out of employment until November 2016 when she obtained employment for the Christmas period which ended just before Christmas Day 2016 as the work and hours required were not proving compatible with the claimant’s self-management techniques for her medical conditions.  Since February 2017 the claimant has been working part time with Co-operation Ireland on a similar part time basis to that of the sales assistant post.

 

13.       The claimant issued a statutory questionnaire on 23 March 2016 addressed to Danielle and Mace Express at the address for the shop premises.  No response was ever received but the claimant received a proof of delivery from the Royal Mail signed for by a Danielle on 24 March 2016.  The claimant became aware sometime in May 2016 that the shop premises were closed.  The identification of the third named respondent and the initial address provided resulted from a telephone call the claimant’s mother made sometime post May 2016.  The claimant’s mother contacted Mace Headquarters staff indicating she was trying to trace the owner
R Symington linked to the shop at Hollywood.  While the staff member referred to Robert, it was indicated the shop was an independent franchise and that no information could be given out.

 

14.       The claimant made efforts to trace a Robert Symington by making a search in the Companies Office.  In conducting that search the claimant identified a company McAllister & Ross Ltd who had as director Robert George Symington and Barbara Marie Symington from 2012.  The nature of the business of the company was described as “retail sale of bread, cakes, flour confectionary and sugar confectionary in specialised stores”.  The registered office of the company was changed to 9 Londonderry Avenue Comber BT23 5ES on 26 October 2015 while on the same date there was a change of director registered in place of Barbara Marie Symington.  The company information held in Companies House and provided in booklet C1 also shows the company was the subject of a voluntary application to strike off the register in June 2016 and was dissolved on 27 September 2016.  The claimant had no direct evidence to connect the Robert George Symington named as a director of McAllister & Ross Ltd to the Robert Symington who she believes to be the owner of Mace Express Hollywood.  The claimant had no explanation for the fact that no contact was sought at any time once advised of the termination of her employment by Danielle on 7 March 2016 through the email address on the job advertisement of symingtonholywood1@maceni.co.uk.

 

THE LAW

 

15.      Disability Discrimination Act 1995 (as amended)

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

…

 

Employers: discrimination and harassment

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(a)    a disabled person whom he employs; or

 

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

 

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

 

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

 

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

 

(c)     the benefits relate to training.

 

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

 

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

 

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

 

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

 

Employers: duty to make adjustments

 

4A(1) Where -

 

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

 

(b)       any physical feature of premises occupied by the employer,

 

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

 

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

 

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

 

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

 

(i)         an applicant for the employment concerned, or

 

(ii)        an employee of the employer concerned.

 

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

 

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

 

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

 

Reasonable Adjustments; supplementary -

 

"18B(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with the duty to make reasonable adjustments, regard shall be had, in particular, to -

 

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

 

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

 

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

 

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

 

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

 

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

 

…

 

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

                  

                   …

 

(c)        transferring him to fill an existing vacancy;

 

(d)        altering his hours of working or training;

 

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

 

…”

 

CONCLUSIONS

 

16.       Generally a tribunal in determining whether the claimant’s claim is made out has no problem in being satisfied that the claimant has correctly named her employer.  There is usually evidence both oral and documentary provided by the claimant as to the correct identity of the employer.  This is an unusual case as the claimant clearly admitted she was not able to state with certainty that the person joined to these proceedings as a result of the order made on 5 September 2016 was her employer.  The history given of the various requests for fuller details as to the identity of the persons initially named in the claim form as well as the delay in providing the detail regarding Mr Symington, leads the tribunal to conclude that it is more likely that contact was made with Mace Headquarters in summer 2016 with a search being made in Companies register sometime later but before mid - September 2016.  The claimant gave evidence that Danielle the shop manager had advised her that Robert was the name of the owner of the Mace Express.  She was advised by Labour Relations Agency to make a search in Companies House when she indicated she was struggling to identify address details for Robert Symington.  It appears to the tribunal that as the only Robert George Symington who resulted from her search in Companies House was the person named as a director in the company McAllister & Ross Ltd, the claimant believed that person was likely to be the owner of the Mace shop within which she had commenced employment.  In the circumstances the tribunal had to consider whether the claimant had established, on a balance of probabilities, that the person named as the third named respondent was indeed the person trading as Mace Express and therefore the employer of the claimant during her brief period of employment.  

 

17.       There was no documentation available to the tribunal that could expressly resolve this matter.  There was no evidence produced from the Companies Office to link McAllister & Ross Ltd or any of the named Directors to the Mace Express based in Hollywood.  There was no evidence that there was only one Robert Symington living in Northern Ireland.  Although the job advert when placed on line had contained in the employer section the address of the retail premises, a telephone number and an email symingtonholywood1@maceni.co.uk, the claimant had not utilised that email address as a mode of communication nor did she have an explanation for the failure to utilise that email address when experiencing difficulty in obtaining a response to the statutory questionnaire.  There was no application made in writing by the claimant or on her behalf, in the pursuit of this legal action, to seek contact details or details of the franchise owner from the on line contact details for Mace NI or to the “headquarters” previously contacted by telephone by the claimant’s mother.  In the initial telephone contact from David Bennett of David J Bennett & Co, he is recorded as advising he knows nothing about him, referring to Robert George Symington.  In his letter he advises he “had been an accountant for a Mr. Robert George Symington” (emphasis added by me) and provided the last address known to him for that person.  However the tribunal found it telling that his letter makes no reference to whether or not the Mr. Symington he knew had any interest or involvement in the Mace Express based in Holywood.  While the copy of the claimant’s IT1 was issued to the address provided, it was not returned as undelivered nor was any response entered by any person.  It is difficult to make any assumption from that lack of response as the tribunal found nothing in the record of the information received from David Bennett that would enable the tribunal to conclude, on the balance of probabilities, that the Robert Symington mentioned in David Bennett’s correspondence was the owner of the Mace Express Loughview and consequently the claimant’s employer.  Accordingly the claimant’s claim is dismissed.

 

18.       In light of the conclusion regarding the named respondent it is not necessary to address whether the tribunal was satisfied as to whether the claimant had been discriminated against in being dismissed from her employment on 7 March 2016.  The tribunal noted the claimant’s medical evidence and its reference to pain and difficulties which the claimant had in multiple joints particularly her knees, the additional medical conditions including fibromyalgia and the day to day activities that the claimant cannot do independently as well as adjustments she makes to enable her to manage her condition.  The tribunal noted the detail in the medical evidence provided indicating the physical impairment suffered by the claimant was substantial and had a long-term adverse effect on her ability to perform normal day-to-day activities.  The tribunal considers it would be fair and just to the claimant to record that on the basis of the evidence received the tribunal was satisfied, on the balance of probabilities, that the claimant had a disability within the meaning of section 3A of the Disability Discrimination Act 1995 (DDA).

 

19.       Section 4 (2) (d) of the DDA 1995 provides that it is unlawful for an employer to discriminate against a disabled person whom he employs by dismissing him or subjecting him to any other detriment.  The burden of proof provisions provide that the claimant must prove facts from which the tribunal could conclude in the absence of an adequate explanation that for a reason relating to her disability she has been treated less favourably than a person without her disability or otherwise in her position has been treated or would be treated.  If the claimant does prove such facts the burden of proof shifts to the respondent to show that the claimant has not suffered the less favourable treatment for a disability related reason or if she has that the treatment was justified.  The tribunal considered whether the claimant has proved primary facts from which the tribunal could conclude that her employer discriminated against her in dismissing her on 7 March 2016 as if the claimant is able to prove such primary facts the burden of proof shifts to the employer to prove that the discrimination did not occur.

 

20.       The tribunal was satisfied the evidence of the claimant of the interview with the manager, Danielle, on 7 March 2016 and the evidence of the claimant’s mother regarding the telephone conversation with Danielle are primary facts from which the tribunal could conclude that discrimination occurred.  However the tribunal is aware that the claimant had been employed for a very short period when she unfortunately fell ill and had to absent herself from her employment.  There is no evidence available from the claimant as to how sickness absence was managed by her employer whether disabled or not.  The tribunal did not consider it fair or just to reach any conclusion on the facts established, in the absence of an explanation from the employer of the claimant given the doubt over the correct identity of that person, whether disability had been a factor or a reason for her dismissal or that her dismissal was in any way related to her disability.

 

 

Employment Judge:

 

Date and place of hearing:    11 January and 29 March 2017, Belfast.

 

Date decision recorded in register and issued to parties: