Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2717/15

 

 

 

CLAIMANT: Mandy Campbell

 

 

RESPONDENT: Belfast Health & Social Care Trust

 

 

DECISION

The tribunal unanimously finds that the claimant has failed to establish that associative
disability discrimination extends to the duty to make reasonable adjustments. Her claim is therefore dismissed.

 

Constitution of Tribunal:

Employment Judge: Employment Judge Browne

 

Members: Mr J Smyth

Mr M McKeown

 

Appearances:

The claimant appeared and represented herself.

 

The respondent was represented by Ms A Finnegan, Barrister-at-Law, instructed by the Directorate of Legal Services.

 

 

ISSUES

 

1.             There was only one legal and factual issue in this case, namely: does associative disability discrimination extend to the duty to make reasonable adjustments, and, if so, was the claimant subjected to unlawful disability discrimination on this ground?

 

FINDINGS OF FACT

 

2.             The parties produced a statement of agreed facts before the hearing of the case, set out below.

 

3.             The claimant was employed by the respondent Belfast Trust and its predecessors as a home care worker from in or about 1987, on an "as and when" contract.

 

4.             In the number of years leading up to August 2015, in practice, she had been working one hour per week with one particular client.

 

5.             Prior to January 2013, the respondent Trust had initiated a modernisation process in relation to the employment, inter alia, of home care workers and an agreement was reached with Unison Trade Union, of which the claimant was a member, in
January 2015.

 

6.             The outcome of the modernisation process resulted in "as and when" home care workers being offered two options, namely:

 

(i)             a guaranteed hours contract (four hours being the minimum number of hours that the Union had been prepared to accept); or

 

(ii)           a "bank' contract, under which the worker could work such hours as were
available and which suited them.

 

7.             In April 2014, a letter was sent to the claimant, setting out the two offers, and she was invited to choose which offer she preferred, and to return the pro-forma by
25 April 2014. The claimant replied on 8 October 2014, following contact from the respondent Trust, declining both options.

 

8.             A meeting between the Trust, the claimant and her Union representative took place on 12 December 2014, to discuss the situation, but the claimant and her Union
representative were insistent that she wished to retain her current one hour per week arrangement, as she had carer responsibilities for her ill brother, and for her son, who is severely affected by autism. Autism is a disability for the purposes of the Disability Discrimination Act 1995. No agreement was reached at the meeting, although it then was agreed that the matter would be reviewed in January 2015.

 

9.             On 6 January 2015, a letter was sent by the respondent Trust to the claimant, asking her to contact the Trust if she decided to accept either of the offered arrangements. The claimant did not respond to that letter.

 

10.          Having received no response from the claimant, the respondent wrote to her on
15 May 2015, indicating that, in light of her failure to indicate her preference as
requested, the Trust was terminating her employment from 7 August 2015.

 

11.          It is the claimant's case that the Trust should have tried harder to keep her as a worker. She only wanted to work for one hour at the same house with the same client, as she had been doing for so long. Each time she was asked by the Trust to work outside that pattern, she had to refuse because of her caring commitments to her disabled son.

 

LAW AND CONCLUSIONS

 

12.          It therefore was the claimant's case that the respondent was in breach of the terms of section 4A of the Disability Discrimination Act 1995, under which there is a duty on employers to make reasonable adjustments. The relevant section is set out below, with the portions applicable to this case highlighted in bold type:

 

"Employers: duty to make adjustments

 

(1) Where—

 

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

 

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

 

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

 

(2) In subsection (1), "the disabled person concerned" means—

 

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

 

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

 

(i) an applicant for the employment concerned, or

 

(ii) an employee of the employer concerned.

 

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

 

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

 

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

 

13.          The leading case on this topic is Hainsworth -v- Ministry of Defence [2014] EWCA Civ 763, which refers to principles later incorporated in to the 1995 Act, applicable to Northern Ireland.

 

14.          The Hainsworth case principally turned upon the proper interpretation of Article 5 of Council Directive 2000/78/EC "... establishing a general framework for equal treatment in employment and occupation" ("the Directive").

 

15.          The relevant part of Article 5 provides:

 

"In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer".

16.          Article 20(3) of the Equality Act 2010 ("the 2010 Act") provides:

 

"The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage".

 

"A" in this provision is the person upon whom the duty to make reasonable adjustment falls (see section 20(1)).

 

17.          By paragraph 5(1) of Schedule 8 to the 2010 Act "relevant matter" means "deciding to whom to offer employment" and in that case "disabled person" means "a person who is, or has notified A that the person may be an applicant for the employment"; or "relevant matter" may mean "employment by A" and in that case "disabled person" means "an applicant for employment by A" or "an employee of A's".

 

18.          The court in Hainsworth concluded that Article 5 is limited so as to require measures only for the assistance of disabled employees or prospective employees of the employer in question. The same interpretation is applicable to section 4A of the Disability Discrimination Act (as set out above).

 

19.          The claimant in this case must establish that there exists in law a duty upon the respondent to act effectively for the benefit of her disabled son.

 

20.          It is the unanimous view of the tribunal that she is unable to do so. The wording of the legislation cannot properly be read as meaning anything other than that the duty upon an employer to make reasonable adjustments is confined to an employee or prospective employee; the claimant's disabled son therefore does not fall in to either category.

 

21.          The tribunal has every sympathy with the claimant in the personal circumstances in which she finds herself, but the function of the tribunal is confined to the interpretation of the statutes and case law. In the present case, the claimant has failed to establish that her case of associative disability discrimination can properly be extended to her son, and accordingly it is dismissed.

 

 

Employment Judge:

 

 

Date and place of hearing: 7 June 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: