Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS: 447/16

783/16

138/17

 

 

 

CLAIMANT: Kevin Barry O'Kane

 

RESPONDENT: Seagate Technology (Ireland)

 

 

 

DECISION

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

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Greene

 

Members: Mrs F Cummins

Mrs D Adams

 

 

Appearances:

 

The claimant appeared in person.

 

The respondent was represented by Ms K Moore of EEF Northern Ireland.

 

 

SOURCES OF EVIDENCE

 

1. The tribunal heard from the claimant and on behalf of the respondent from Paul McCorkell, Louise Coyle, Norman Mooney, Damian Boyle, Thomas Doherty,
Paul McLaughlin, Jennifer Connolly and Dr Crowther. The tribunal also received
10 bundles of documents amounting to 348 pages, witness statements and written submissions.

 

THE CLAIM AND THE DEFENCE

 

2. The claimant brought claims for disability discrimination and for an unauthorised deduction from wages. The respondent disputed the claimant's claims in their entirety.

 

THE ISSUES

 

3. Legal Issues

 

(1) Has the claimant been subjected to less favourable treatment on grounds of his disability contrary to Section 3A Disability Discrimination Act 1995?

 

(2) Has the claimant been subjected to harassment on grounds of disability contrary to Section 3B Disability Discrimination Act 1995 by the following people:-

 

- Norman Mooney

- Thomas Doherty

- Damian Boyle

- Paul McLaughlin.

 

The claimant says his allegations of harassment against Aidan McMenamin and David Hudson were not on grounds of a disability but were general acts of harassment, specifically the claimant does not believe the alleged actions were because of his disability, but because they didn't like him.

 

Factual Issues

 

(1) What medical information did the respondent receive about the claimant's medical condition and its possible effects on him at work?

 

(2) (a) Has the claimant's allegation that the respondent failed to consider the effects of his medication on his ability to operate machinery been raised with the tribunal within the three month time-limit? If not, does the tribunal have jurisdiction to consider this complaints?

 

(b) If yes, what machinery does the claimant say he was unable to operate due to medication?

 

(c) What information and/or medical evidence did the respondent have about the effects of the claimant's medication on his ability to operate this machinery? Specifically, what information and/or medical evidence did Norman Mooney and/or Dr Crowther and/or the Occupational Health nurse have about the effects of the claimant's medication on his ability to operate machinery at work?

 

(d) Did the respondent require the claimant to operate this machinery contrary to medical advice?

 

(3) What is the nature of each alleged act of harassment the claimant says was carried out by Aidan McMenamin?

 

(4) What is the nature of each alleged act of harassment the claimant says was carried out by David Hudson?

 

(5) (a) Did the claimant tell Norman Mooney he was being harassed by Aidan McMenamin and David Hudson?

 

(b) If so, when did the claimant tell Norman Mooney he was being harassed by Aidan McMenamin and David Hudson?

 

(c) What did the claimant tell Norman Mooney?

 

(d) What action, if any, did Norman Mooney take?

 

(e) If Norman Mooney did not take any suitable action, did this amount to harassment of the claimant by Norman Mooney on the grounds of the claimant's disability?

 

(6) When did the claimant first raise his allegation of harassment with the respondent? The claimant says he first made this allegation in February 2015. The respondent says the claimant first made this allegation on 3 October 2015. Once the allegation was raised, did the respondent follow its rules and procedures document "8008 - Harassment Free Workplace"?

 

(7) (a) In August 2015 did the claimant request a change of room to distance himself from the alleged harassers?

 

(b) If so, was this request granted?

 

(c) If this request was not granted, did it amount to harassment of the claimant on the grounds of his disability?

 

(d) If the claimant is found to have raised his complaints of harassment before August 2015, should he have been offered a different place to work and/or different duties rather than requesting these?

 

(8) Have each of the complaints of harassment been raised with the tribunal within the three month time-limit? If not, does the tribunal have jurisdiction to consider these complaints?

 

Allegation that Thomas Doherty and Damian Boyle were trying to dismiss the claimant from the Company

 

(9) Is the voicemail which was disclosed, the one which the claimant left for Damian Boyle on 8 November 2015 and which was subsequently forwarded to Paul McLaughlin on 4 December 2015 (the respondent's contention), or did the claimant leave his voicemail on 25 November 2015 (the claimant's contention)?

 

(10) Did the voicemail left by the claimant contain a request for holidays?

 

(11) Was there a genuine misunderstanding around the date the claimant was on holiday (the respondent's contention), or did the managers lie in an attempt to dismiss the claimant from the company (the claimant's contention)?

 

Allegation regarding the conduct of Paul McLaughlin towards the claimant

 

(12) Did Paul McLaughlin tell the claimant that suicide would be a bad idea as he would not be covered by company insurance whereas if he died by accident there would be cause for an insurance pay-out?

 

(13) If the respondent is found guilty of unlawful discrimination on the grounds of the claimant's disability (which is denied), can the respondent rely upon the defence that it took such steps as were reasonably practicable to prevent such act(s) of discrimination occurring?

 

(14) If any of the claimant's complaints of unlawful discrimination are upheld, has the claimant suffered injury to feelings? If the claimant has suffered injury to feelings, what is the extent of such injury and what compensation, if any, is appropriate in the circumstances?

 

The respondent accepts that the claimant suffers from a disability for the purposes of the Disability Discrimination Act 1995, as amended.

 

4. (1) At a Case Management Discussion on 3 May 2017 the claimant indicated that he was not seeking to make any claim for loss of earnings nor was he seeking to make a claim for any unlawful deduction from wages.

 

(2) In the course of the hearing the claimant told the tribunal that he was not seeking any compensation for economic loss but just for injury to feelings.

 

(3) The respondent accepts that the claimant's claims were brought within the requisite time limits.

 

(4) Pursuant to the decision of the Court of Appeal in Galo -v- Bombardier Aerospace the claimant did not seek any reasonable adjustments or specific arrangements though in the course of the hearing the claimant was ill and appropriate allowance was made for that.

 

THE FINDINGS OF FACT

 

5. (1) The claimant was born on 18 May 1965.

 

(2) He began working with the respondent on 4 December 2000 and continues to be an employee of the respondent.

 

(3) He works as a machine operator for 42 hours per week on a pattern of four day shifts of 12 hours then four days off and then four night shifts of
12 hours then four nights off and then he returns to the day shift.

 

(4) His rate of pay was £7.77 per hour gross and his net monthly pay was £1,290.00.

 

(5) The claimant has been suffering from depression for a long time but it was only in his third year of employment, in or about 2003, that he was diagnosed as suffering from depression. He was then put on medication to address the depression.

 

(6) Around 2006 the claimant had another bout of depression as a result of which he was again off work and alleges that he did not receive two pay rises as a consequence of being off work.

 

(7) The claimant in and around 2012 damaged his cruciate ligaments while playing football and was off work for two months. Again, as a consequence of being off work, he alleges that he did not get two pay rises.

 

(8) In or about 2014 the claimant suffered another bout of depression. However he carried on working. He says he spoke to his manager, Norman Mooney informing him of his depression and of his determination to stay at work.

 

(9) The claimant subsequently contracted shingles in or about August 2014 and he said his GP believed it was connected to his depression. He lost two stone in weight and was off work for around four weeks.

 

(10) The claimant's health issues and not getting pay rises affected adversely his family life. The claimant is not making any allegation that, not receiving pay rises are instances of disability discrimination suffered by him.

 

(11) The respondent accepts that the claimant did not get pay rises in 2007, 2008 and 2010, and one of the reasons was his performance rating which was affected by his time off work. In the years 2008/2009 and 2014/2015 no employees received pay increases due to business and economic conditions.

 

(12) At the start of 2016, on doctor's advice, the claimant alleges he approached Norman Mooney to see if he qualified for "DDA cover" and was told by Norman Mooney that he did not. Mr Norman Mooney denies making any such statement. The claimant further believes he was entitled to and should have received "DDA cover" immediately.

 

(13) The claimant alleged speaking to Norman Mooney informally about being harassed by Aidan McMenamin and David Hudson and that Norman Mooney's failure to take action amounted to harassment.

 

(14) Norman Mooney denied the allegation during the internal investigation. He added that he had asked the claimant to act up as lead operator from April to July 2014 which he would not have done had he been aware of any relationship issues with fellow employees.

 

(15) The claimant was unable to identify the dates when he spoke to Norman Mooney. Nor did he complain about any failure by Norman Mooney to do anything, to address his complaints following his representations, to him. The evidence given by the claimant was not consistent and there is not any record of the claimant making any official grievance. The claimant explained the absence of an official grievance as a failure on Norman Mooney's part to advise him to make an official grievance. He also contends that Norman Mooney should have construed his request "to have a word with him" as a complaint of harassment.

 

(16) The claimant alleges that on his return to work in August 2014 he requested a change of room to distance himself from the harassers and this was not done. Norman Mooney denied that any such request was made. There was not any evidence, apart from the claimant's assertion, to support his contention. Indeed, subsequently when this was investigated by the respondent, none of the claimant's colleagues supported his contention that he was the victim of harassment by the two alleged harassers.

 

(17) The claimant refers to an incident around the start of 2015 when he was unwell with depression. He was involved in an argument with one of the alleged harassers and his line manager. After the argument he says he spoke to Norman Mooney, during which he complained about the two harassers, Aidan McMenamin and David Hudson and asked Norman Mooney to speak to them. Mr Mooney denies this. The claimant was subsequently hospitalised in a psychiatric hospital.

 

(18) On his return to work around April 2015 the claimant says he spoke to Norman Mooney and told him about the medication he was taking and that he could not operate machinery. He also alleges that he informed him that he wanted to start grievance procedures against Aidan McMenamin and David Hudson and was considering action against him for not preventing the harassment of which he had notified him. He also alleges that he asked Norman Mooney if he was covered by the Disability Discrimination Act and was told that he was not covered.

 

(19) The basis for the claimant's contention that it was not safe for him to operate machinery was a direction on the label on the box containing his medication which said that the person taking the medication was not to operate machinery. The operational requirement to machinery that the claimant had to perform was similar to switching on a CD player.

 

(20) The claimant alleges he told Dr Crowther and the respondent's nurse that he could not operate machinery because of the medication he was taking.

 

(21) The claimant lodged a grievance about Norman Mooney on 3 October 2015 complaining that Norman Mooney did not do anything about the harassment, despite being informed about it by him and also about his medical condition. The claimant does not allege that Norman Mooney did not do anything because of the claimant's disability.

 

(22) The claimant was informed, in late October 2015, that he was afforded the cover provided by the Disability Discrimination Act.

 

(23) On 10 November 2015 the claimant sent an email to Paul McLaughlin, the shift manager on C. shift, via Anne O'Donnell from HR, complaining about Norman Mooney's failure to do anything about the harassment. The respondent replied on 13 November 2015 and proposed dealing with the claimant's grievance under the Seagate Harassment Free Workplace Policy.

 

(24) When the claimant returned to work on 29 August 2015 he had approached Norman Mooney, who was no longer his manager, as to where he would be working. Norman Mooney told the claimant to go to his usual area. When the claimant protested Norman Mooney told him to go to Thomas Doherty, his new manager. On approaching Mr Doherty the claimant was told to do his work in the usual place.

 

(25) The claimant went to his usual post, became unsettled, nervous, confused and agitated. The claimant had a short chat with Norman Mooney he alleges, and left work.

 

(26) The claimant alleged that when he returned to work he was placed on trolley duty to separate him from his alleged harassers. This arrangement lasted for a few weeks, he asserts.

 

(27) On 24 November 2015 the claimant attended a meeting in connection with the three grievances he had lodged on 3 October 2015 against
Aidan McMenamin, David Hudson and Norman Mooney. The grievances concerned his treatment and a denial of his rights. At the end of the day's hearing the grievance investigation had not concluded and was scheduled to resume. However, the claimant stated that he would not be attending. A further hearing was scheduled for 2 December 2015 to consider further complaints about Thomas Doherty and Damian Boyle, brought by the claimant, but this did not take place.

 

(28) Although the grievance meeting did not conclude the respondent began to investigate the complaints made by the claimant due to their seriousness. However, following conclusion of the investigation without the claimant's further participation, the respondent did not uphold the claimant's grievances. The claimant appealed on 8 April 2016. His grievances were not upheld on appeal.

 

(29) Dr Geoffrey Crowther is an occupational health consultant and he is engaged to provide occupational health advice services to the respondent.

 

(30) Dr Crowther assessed the claimant in June 2015, made recommendations in relation to him in July 2015 and reported to the respondent on the claimant in August 2015, September 2015 and October 2015.

 

(31) Dr Crowther made a report to the respondent via its occupational health nurse which contained a considerable amount of detail including a diagnosis section. The claimant was provided with a copy of the full report that was sent to the respondent. However the HR Department and the managers within the respondent only received a copy with the diagnosis section removed. They were unaware of any discussion or consideration as to whether the claimant qualified as disabled under the Disability Discrimination Act 1995, as amended. Nor did the respondent brief them about this aspect.

 

(32) In the course of his assessment of the claimant Dr Crowther was made aware of the medication that the claimant was taking. However, the claimant did not state to Dr Crowther that he could not operate machinery. Dr Crowther is also of the opinion that there are no grounds on which he could formally advise that the claimant could not operate machinery in 2015. The claimant did not make any report to Dr Crowther about drowsiness as an effect of the medication nor did he suggest anything to Dr Crowther that raised concerns with Dr Crowther about his ability to work in the clean room where he worked. The work that the claimant undertook in the clean room is similar to loading CDs into a CD multichanger and pressing play. There is no contact with chemicals, or sharp or dangerous objects. Nor is the claimant exposed to driving or working parts and there is no trap risk. In Dr Crowther's view the clean room is a safe working environment. Dr Crowther also commented that had the claimant said anything to him that caused him concern about the tasks that the claimant was undertaking or where the claimant worked or the tools he used that he would have made further investigations and could have made recommendations for alternative adjustments such as trolley duty.

 

(33) Following a referral to the occupational health doctor in October 2015, the respondent became aware in November 2015 that the claimant's medical condition might fall under the definition of disability under the Disability Discrimination Act 1995, as amended. The respondent made adjustments for the claimant, including; adjusting his working hours; not initiating disciplinary action because the occupational health doctor advised that a change in medication may have affected the claimant's behaviour; and adjustments to his role and shift pattern. The claimant did not suggest any other adjustments nor has he provided details to the respondent of what he meant by his statement that he was denied "DDA cover".

 

Allegation that Thomas Doherty and Damian Boyle were trying to dismiss the claimant from the company

 

(34) In November 2015 the two shift managers to whom the claimant was accountable on the different shifts he worked were Thomas Doherty on 'C shift' and Damian Boyle on 'D shift'.

 

(35) The claimant was scheduled to work on 'D shift' at 7.00 am on 9 November 2015. On 8 November 2015 he rang Damian Boyle and left a voicemail. In the voicemail he explained that he was suffering from a kidney infection and asked for that day and the next day off. He telephoned later in the morning and spoke to Damian Boyle who said that it was fine for the claimant to have the two days off, that he requested.

 

(36) On 12 November 2015 Thomas Doherty telephoned the claimant. He asked the claimant where he was on the previous two days because he had agreed with Damian Boyle that he would work them. The claimant denied making any such agreement with Damian Boyle. Thomas Doherty said that this could amount to gross misconduct and that he would see the claimant about it the following week. Mr Doherty said that he would speak to Damian Boyle. The claimant was upset by the contact and distraught at the way he was being treated. The tribunal accepts that Thomas Doherty had raised the issue of gross misconduct, despite his denial, on the basis of a note to that effect made by Damian Boyle shortly after the event.

 

(37) The claimant had a further conversation with Thomas Doherty when the matter was discussed again. The claimant alleges that Mr Doherty raised the arrangement with Damian Boyle that he would work days 3 and 4 of the shift, which the claimant strenuously denied. Mr Doherty said he had been at work the previous Wednesday which the claimant believed contradicted what he had previously told him. The claimant accused Mr Doherty of lying so that the claimant would get a warning, which he denied. The claimant believed Thomas Doherty and Damian Boyle had agreed that between them.

 

(38) Later that evening Paul McLaughlin rang the claimant to say he was not taking any further action on a number of potential disciplinary offences against him and that he was being given a clean slate. The claimant believed this was done to avoid him making a fuss about Thomas Doherty and Damian Boyle. However, Mr McLaughlin says that this was done following the report by
Dr Crowther where he stated that the claimant's change of medication could have contributed to the claimant's behaviour at work. The tribunal accepts that for a number of reasons, including that Mr McLaughlin was not challenged on his account, but also because that there was a contemporaneous record of Mr McLaughlin having decided this at the time.

 

 

Allegation regarding the conduct of Paul McLaughlin towards the claimant

 

(39) The claimant alleges that at a meeting with Paul McLaughlin that Paul McLaughlin had told him that suicide was a bad idea as he would not be covered by company insurance whereas if he died by accident there would be a cause for an insurance pay-out.

 

(40) The tribunal does not accept this allegation. In so concluding the tribunal was influenced by the fact that Mr McLaughlin denied making any such statement. In addition Mr McLaughlin was not challenged in his evidence about that. However, Mr McLaughlin sent an email to Anne O'Donnell to record his discussion with the claimant which omits any reference to the claimant's allegation. Whilst one might argue that the email from Mr McLaughlin would not include the comments that the claimant alleges that he made, however it seems to the tribunal unlikely that if the claimant was suicidal or talking about suicide that Mr McLaughlin would not have made some reference to that in his email, which he did not.

 

(41) The claimant's depression worsened and he alleges that he was subjected to harassment at his job by two work colleagues. This culminated in the claimant having a severe mental breakdown in or around 12 December 2015 requiring hospitalisation of him in a psychiatric ward due to suicidal thoughts and depression. While in hospital he developed a bleeding ulcer and had to be rushed to Altnagelvin Hospital where he remained for one week.

 

(42) On return to work in or about 5 January 2016 he alleges he was returned to the same place of work despite his request to be placed elsewhere to avoid going back to where he suffered harassment.

 

(43) The claimant alleges the harassment continued and when he approached the lead operator the latter took the side of the alleged perpetrators of the harassment.

 

(44) The respondent investigated the allegations of harassment and did not uphold them. They were unable to identify any fellow workers of the claimant who supported his contentions about harassment.

 

(45) Dr Crowther told the tribunal that medication affects different people in different ways. He further stated that it is often the case when someone starts a particular type of medication they get side-effects before the benefits of the treatment appear. This can also occur when there is a change of medication.

 

(46) The respondent, on receipt of Dr Crowther's report of 24 September 2015 was aware that:-

 

(a) on 11 June 2015 the occupational health report on the claimant had declared him unfit for work, and

 

(b) on 24 September 2015 Dr Crowther had given his opinion that he is likely to be considered a disabled person for the purposes of the Disability Discrimination Act 1995 as amended. He further gave a prognosis that he anticipated that the claimant would be ready for work from mid-October 2015 on a phased return.

 

(47) On 23 October 2015, following a relapse, the claimant was referred to Dr Crowther who recommended a return to work initially on the basis of two days a week and to full time work after three months.

 

(48) On 7 January 2016 Dr Crowther was of the opinion that the claimant was not fit for work and recorded that the claimant perceived his unfitness was due to his difficulties at work.

 

THE LAW

 

6. (1) 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 the particular disability whose relevant circumstances, including his abilities, are the same as, or are not materially different from, those of the disabled person (Section 3A(5) Disability Discrimination Act 1995 as amended).

 

(2) A tribunal shall not consider a complaint of discrimination on the ground of disability unless it is brought within a period of three months beginning with the day on which the act complained of was done (Schedule 3, 3(1) Disability Discrimination Act 1995 as amended).

 

(3) A tribunal may nevertheless consider any such complaint which is out of time if, in all the circumstances of the case, it considers it just and equitable to do so (Schedule 3(3) Disability Discrimination Act 1995 as amended).

 

(4) A person subjects a disabled person to harassment where for a reason which relates to the disabled person's disability he engages in unwanted conduct which has the purpose of effect of violating the disabled person's dignity or creating and intimidating, a hostile, degrading, humiliating or offensive environment for him.

 

(5) Conduct shall be regarded as having the effect referred to at 6 (4) above only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect.

 

APPLICATION OF THE LAW AND THE FINDINGS OF FACT TO THE ISSUES

 

7. (1) The respondent conceded before the hearing that the claimant is a disabled person for the purposes of the Disability Discrimination Act 1995 as amended.

 

(2) The claimant is not seeking compensation for any financial loss, or unlawful deduction from wages but rather is only seeking compensation for injury to feelings.

 

(3) The claimant had difficulty throughout the hearing with dates of events or happenings. Frequently he gave inconsistent dates and indeed some of the dates for events or happenings, proposed by the claimant, were demonstrated, by objective evidence, not to be correct.

 

(4) A number of reasonable adjustments and special arrangements were made for the claimant throughout the hearing of his claim by reason of his own disability and illness pursuant to the decision of the Court of Appeal in Galo v Bombardier Aerospace.

 

(5) The respondent's occupational health nurse receives the full report from the occupational health doctor. However, the Human Relations unit, within the respondent, and managers get a redacted version which omits any diagnosis. The respondent should consider whether its practice should be changed to make known to appropriate managers, where the occupational health doctor is of the opinion that the employee was likely to qualify as a disabled person for the purposes of the Disability Discrimination Act 1995, as amended.

 

(6) It is part of the claimant's claim that the respondent failed to consider the effects of his medication on his ability to operate machinery. This arises from a written direction that was on the label of some medication proscribed to the claimant which stated that the person taking the medication should not operate machinery. The claimant interpreted it literally and absolutely but there was no guidance given to the tribunal or indeed to the claimant as to what exactly that meant.

 

(7) Dr Crowther did not support the claimant's contention that he was not to, or that it was dangerous for him to, use the respondent's machinery due to his familiarity with the claimant's medical condition and because the claimant did not adduce any medical evidence to support his contention. Dr Crowther indicated to the tribunal that he did not consider that it was a risk to the claimant to operate his normal machinery within the respondent's workplace.

 

(8) The tribunal is not persuaded that it was not safe for the claimant to operate machinery as there was no particular specific medical advice to the effect that to operate his machinery would pose a risk to the claimant or others given that the operation to be performed by the claimant was nothing more than loading and switching on a button, similar to the action of loading and switching on a CD player.

 

(9) The claimant indicated to the tribunal that any acts of harassment perpetrated against him by Aidan McMenamin and David Hudson were, in his view, not related to his disability. While neither individual was called to deny the claimant's allegation of harassment the respondent had indicated that it had investigated the complaints of harassment by the two individuals and had not upheld them. In any event, they are not part of the claimant's claim for disability discrimination.

 

(10) The tribunal is not persuaded that the claimant informed Norman Mooney that he was being harassed by Aidan McMenamin and David Hudson. The tribunal accepted the denial of such a report by Norman Mooney, which it regarded as having been given in a very straight forward and honest way. In addition the claimant also gave evidence of having respect for Norman Mooney. Added to these considerations was the ongoing problem that the claimant did not present himself as an accurate historian when relating details of the alleged acts of harassment.

 

(11) In those circumstances Mr Mooney could not be expected to act on any details of harassment about which he was not informed.

 

(12) The tribunal accepts the respondent's contention that the allegation of harassment was made by the claimant on 3 October 2015. In arriving at that conclusion the tribunal was influenced by the letter from the claimant which had been produced by the respondent. In addition the claimant had given different dates in February and April of 2015 when he alleges he made his complaint of harassment, which was denied, and for which there was not any corroboration.

 

(13) The tribunal accepts that the respondent followed its normal procedure under the Harassment Free Workplace Policy and the claimant never challenged this.

 

(14) The tribunal is not persuaded that in or about August 2015 the claimant requested a change of room to distance himself from the alleged harassers, Aidan McMenamin and David Hudson. In so concluding the tribunal had regard to the fact that Mr Norman Mooney denied that this was the case and the claimant did not challenge his evidence.

 

Allegation that Thomas Doherty and Damian Boyle were trying to dismiss the claimant from the company

 

(15) The tribunal accepts that the voicemail, which was disclosed by the respondent, is the one the claimant left on 8 November 2015 and which was subsequently forwarded to Paul McLaughlin on 4 December 2015. The claimant alleges that there was a second voicemail but this was never produced either by the claimant or the respondent. However the respondent produced telephone call logs which showed only one telephone call on 8 November 2015. The claimant did not produce any evidence to support his contention that there was a second voicemail on 25 November 2015.

 

(16) The voicemail left by the claimant did not specifically make a request for holidays. However the wording of the voicemail is consistent with a request for holidays. It could also be construed as consistent with the arrangement made between the claimant and the respondent whereby he worked the first two days on each four day shift.

 

(17) On balance, the tribunal accepts that there was a misunderstanding between the claimant and Damian Boyle when the claimant requested time off work. Damian Boyle has given evidence that on reflection there had been a degree of misunderstanding. He believed the request for two days off was a request by the claimant to vary his two days off work to the second two days on the shift, whereas the claimant believed that he was requesting two days' holiday. The objective evidence contained in the voicemail permits both constructions. In the circumstances the tribunal does not accept that it was an attempt by Thomas Doherty and Damian Boyle to get the claimant dismissed.

 

(18) Indeed, were the respondent attempting or inclined to attempt to dismiss the claimant, there were other opportunities in relation to his conduct and attendance which they did not seek to exploit or use in order to dismiss him.

 

(19) The tribunal does not accept that Paul McLaughlin told the claimant that suicide would be a bad idea as he would not be covered by company insurance, whereas if he died by accident, there would be a cause for an insurance pay-out. In so concluding the tribunal had regard to the email, written shortly after the meeting by Mr McLaughlin on 5 December 2015 at 13.39, which does not make any mention about suicide. In addition, the claimant's evidence has not been reliable on many aspects of his evidence.

 

(20) The tribunal therefore is not persuaded that any of the incidents which occurred involving the claimant were connected to or on the grounds of his disability and therefore his claim for disability discrimination must necessarily fail. The tribunal therefore does not have to consider questions of comparators or the issue of less favourable treatment.

 

(21) Similarly the tribunal is not persuaded that the claimant suffered any harassment on the grounds of his disability.

 

(22) Accordingly the claimant's claims for disability discrimination are dismissed.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 19, 20, 21, 22 June 2017 and 13, 14, 15, 16, 17, 20, 21, 22 and 24 November 2017, Belfast.

 

Date decision recorded in register and issued to parties: