Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1198/16

 

 

 

CLAIMANT: Nicola Loughran

 

 

RESPONDENT: Department for Communities

 

 

 

DECISION

The unanimous decision of the tribunal is that the respondent discriminated against the claimant by failing to make reasonable adjustments for her and it awards compensation of £8,000.00 for injury to feelings and £2,291.20 of interest on the award for injury to feelings.

 

Constitution of Tribunal:

Employment Judge: Employment Judge Greene

Members: Mr J Barbour

Mr P Sidebottom

 

Appearances:

The claimant was represented by Mr J Rafferty, Barrister-at-Law, instructed by Fergusons Solicitors.

The respondent was represented by Mr S Doherty, Barrister-at-Law, instructed by The Departmental Solicitor's Office.

 

SOURCES OF EVIDENCE

 

1. The tribunal heard evidence from the claimant and, on behalf of the respondent, from Gillian Burns, Pauline Forbes, Paul McGibbon, Theresa Toal and Paula McGarrity. The tribunal also received six bundles of documents comprising
441 pages, written submissions and a number of legal authorities.

 

THE CLAIM AND DEFENCE

 

2. The claimant claimed that she had been discriminated against on the grounds of her disability and that the respondent had failed to make reasonable adjustments for her, as a disabled person, contrary to the Disability Discrimination Act 1995, as amended. The respondent disputed the claimant's claims in their entirety.

 

THE ISSUES

 

3. The agreed issues for determination were as follows:-

 

" Legal issues:

 

(1) Is the claimant disabled within the provisions of the Disability Discrimination Act 1995?

 

(2) Was the respondent under a duty to make reasonable adjustments and, if so, did it discriminate against the claimant on the ground of her disability in the alleged failure to make reasonable adjustments contrary to Section 4A of the Disability Discrimination Act 1995?

 

(3) Does the tribunal have jurisdiction to determine any complaint by the claimant which occurred prior to 13 January 2016 by reason of Paragraph 3(1) of Schedule 3 to the Disability Discrimination Act 1995?

 

(4) Whether the treatment of the claimant amounts to an act extending over a period.

 

(5) Whether, if any part of the claim is out of time, it is just and equitable to extend time.

 

(6) What loss, if any, has the claimant suffered?

 

Factual Issues:

 

(1) Did the claimant suffer from an impairment lasting, or likely to last, longer than 12 months?

 

(2) What effect, if any, did any such impairment have on the claimant's normal day-to-day activities?

 

(3) If the claimant is disabled, did any PCP or physical feature of her workplace place the claimant at a substantial disadvantage as compared to a non-disabled person?

 

(4) What steps, if any, did the respondent take to alleviate any such disadvantage?

 

(5) What steps would have prevented any such disadvantage and would those steps have been reasonable for the respondent to have taken?

(6) Did the application of the respondent's Inefficiency Sickness Absence Policy to the claimant place the claimant at a substantial disadvantage as compared to a non-disabled person?

 

(7) Did the issue of a written warning to the claimant on 5 November 2013 under the Inefficiency Sickness Absence Policy amount to a failure to make a reasonable adjustment?

 

(8) Did the failure to place the claimant on the respondent's DDA Priority Pool List amount to a failure to make a reasonable adjustment by the respondent?

 

(9) Has the claimant been required to work duties below her capabilities?

 

(10) If so, does any failure of the respondent to alter the claimant's duties amount to a failure to make a reasonable adjustment?

 

(11) What loss has the claimant sustained as a consequence of any acts of discrimination?

 

(12) What injury to her feelings has the claimant as a consequence of any acts of discrimination?"

 

The claimant's claim is for injury to feelings only.

 

FINDINGS OF FACT

 

4. (1) The claimant was born on 30 December 1971.

 

Medical conditions

 

(2) The claimant suffers and has suffered from a number of medical conditions which are; type 1 diabetes, cancer around the year 2000 requiring an nephrectomy; trigger finger in two fingers and thumb on her right hand; arthritis and carpel tunnel syndrome in both hands; nerve problems in her right arm; surgery to both hands for trigger finger and carpel tunnel syndrome with limited success; and she will require further surgery after her surgery in 2013.

 

(3) The claimant started working with the respondent in July 2008 in the Child Maintenance Service (CMS) as an administrative officer with secretarial and administrative responsibilities. She had initially been employed full-time but reduced that to four days per week so that she could attend medical appointments on a Friday.

 

(4) From July 2008 to 2011 the claimant did not have any serious health problems requiring time off work. The claimant was off work from 10 to 12 October 2011 arising from her disability. From 18 October to 26 October 2012 the claimant was off work for five days due to sickness. It is not clear if this was related to her disability. Between 22 April 2013 and 6 May 2013 the claimant was off work for eight days with mumps. The claimant was off work for 45 days from 26 June 2013 until 16 September 2013 for surgery for trigger finger release and recuperation which were related to her disability. The claimant was off again for four days from 18 to 24 February 2015 to allow swelling in her hands to recede following a cortisone injection which was related to her disability. For six days from 17 to 25 February 2016 the claimant was again off work to allow swelling in her hands to recede following a cortisone injection which was related to her disability. The claimant has been off work from 23 August 2016 due to ongoing treatment on her hands and surgery to her right hand and thumb. It appears that she will require further surgery and that her prognosis is not clear.

 

(5) The respondent accepted, at the start of the hearing, that the claimant is a disabled person for the purposes of the Disability Discrimination Act 1995, as amended.

 

Inefficiency Sickness Absence Policy

 

(6) The respondent has an Inefficiency Sickness Absence Policy (ISAP). The aim of the policy is to promote regular attendance at work, minimise absence across the service and to provide a framework within which sickness absence can be effectively managed. The policy addresses short-term absence and long-term absence.

 

(7) Under the frequent short-term absence section there are a number of review points which are used to identify the level and pattern of sickness absence that require closer examination. The review points are being on sick absence on four occasions or 10 working days in a rolling 12-month period. (paragraph 4.1) Sick absence, due to pregnancy-related illness during the protected period, is excluded from the ISAP. (paragraph 4.4)

 

(8) Should an employee's level of sickness absence reach a review point the departmental HR and/or line management will assess what action, if any, might be required. In so doing, a number of factors will be considered, which are;

 

(a)   the nature of the illness or injury;

 

(b)        circumstances falling within relevant legislation, including disability legislation;

 

(c)         frequency/pattern of absence;

 

(d)        prior sickness absence records;

 

(e)        relevant information contained in return-to-work records; and

 

(f)         any relevant circumstances highlighted by the employee or his/her line management.

 

The list is not exhaustive and other factors may influence whether formal inefficiency action is appropriate or not. (paragraph 4.3)

 

(9) The ISAP sets out the procedure for the consideration of inefficiency action including the details of meetings; the right to representation; the right to an invitation to a meeting; the right to be accompanied by a trade union representative or work colleague; an opportunity to explain the circumstances relating to the level of sickness absence or other relevant information; consideration of a referral to OHS; and an opportunity to agree a summary of the meeting. Where no formal inefficiency action is to be taken, the employee will be advised in writing. (paragraphs 4.6-4.11)

 

(10) If, following a meeting, it is decided to proceed with inefficiency action the employee will be issued with a Written Warning. (paragraph 5.2)

 

(11) The Written Warning will remain valid for two years and the employee's level of attendance will continue to be monitored. If at any time during this warning period the employee's level of sickness absence does not improve to a level acceptable to his/her department, a Final Written Warning will be considered. (paragraph 5.4). The tribunal did not receive any evidence that defined or give guidance on what "improve" or "an acceptable level" mean at any stage of the ISAP policy,

 

(12) Where an employee has a valid Written Warning and his/her level of sickness absence has not improved to an acceptable level, departmental HR will consult with line management to consider if it is appropriate to move to the Final Written Warning stage and will invite the employee to a meeting in line with the procedures set out above at paragraph (9). (paragraph 5.6)

 

(13) The Final Written Warning will remain valid for two years and the employee's level of attendance will continue to be monitored. If at any time during the warning period the employee's level of sickness absence does not improve to a level acceptable to his/her departmental HR, dismissal action will be considered. (paragraph 5.9)

 

(14) Where the level of sickness absence has not shown a significant and sustained improvement, departmental HR will consider dismissal. The departmental HR will write to the employee and invite him/her to a meeting, the purpose of which will be to consider dismissal. (paragraph 5.12)

 

(15) If, following the pre-dismissal meeting and following appropriate consultation, it is decided that the level of sickness absence can no longer be sustained, departmental HR will write to the employee and confirm the decision to dismiss the employee on the grounds of inefficiency. (paragraph 5.13)

 

(16) Early intervention is key to the successful management of sickness absence cases. Referral to the OHS is an important intervention and can be made at any time where departmental HR, or line management, consider it appropriate. All absences of 20 working days or more must be reviewed with a view to referral. (paragraph 7.1)

 

(17) Departmental HR may decide to refer the employee to the OHS in order to obtain advice on the following:-

 

•                 any medical condition affecting the employee's performance or attendance at work;

 

•                 whether a definitive return to work date can be given (an if not, an indication of likely timescale for recovery and return to work);

 

•                 whether the employee is currently fit to carry out the duties of his/her grade;

 

•                 whether there are any adjustments to the work tasks or environment that would help to facilitate the employee's rehabilitation or an early return to work; and the likely duration of any adjustment;

 

•                 whether the employee's health problem is likely to recur and/or affect future attendance;

 

•                 other issues specific to the employee's individual case;

 

•                 where appropriate, whether the criteria for early retirement on medical grounds are satisfied. (paragraph 7.2)

 

Application of Inefficiency Sickness Absence Policy to the Claimant

 

(18) In May 2013 after a period of eight days off work for sickness unrelated to her disability the claimant was considered for action under the respondent's Inefficiency Sickness Absence Policy (ISAP). She had previously been off for five days from 18 to 26 October 2012. However the result, issued on
10 July 2013, was that the respondent did not proceed with a Written Warning. The letter, informing the claimant of the result, also stated that her attendance would continue to be monitored closely and that any further absences might result in a Written Warning. However in the absence of any definition or guidance as to the meaning of "improve" or "an acceptable level" only a further absence that triggered the ISAP could lead to a consideration of giving a written warning, not any further absence.

 

(19) In September 2013, after surgery related to her disability and being off work for 45 days, the claimant was again considered under the ISAP and on 26 November 2013 she was issued with a Written Warning valid for two years. The Written Warning also informed her that failure to demonstrate an immediate and sustained improvement in her attendance could lead to further, inefficiency action which could ultimately lead to her dismissal. She appealed the Written Warning unsuccessfully. Paula McGarrity, at the appeal stage, considered that it would not be reasonable to delay the imposition of a Written Warning because on a previous occasion no warning was given. Whilst the giving of a warning about future conduct to an employee after the employee has received a Written Warning is consistent with ISAP, the terms of the warning are not in keeping with that provided for under the ISAP.

 

(20) On 5 March 2015 the claimant was informed that she was being considered for action under the ISAP following a sickness absence of four days related to her disability. The claimant attended a meeting on 10 March 2015, and on 23 April 2015 the claimant was told that the respondent was not proceeding with a Final Written Warning. She was also informed that her attendance would continue to be monitored closely and that any further absences might result in a Final Written Warning being issued. Again to issue a warning to an employee who is currently under a Written Warning, about the risks to the employee of further absences, could be considered to be a fair thing to do. However, the terms of the warning are not in keeping with what the ISAP provides. The claimant was told that the respondent was not proceeding with a final Written Warning as a reasonable adjustment under the Disability Discrimination Act, as amended. The respondent believed the claimant's attendance had improved since the imposition of a Written Warning. What the respondent meant by "improved" was not explained to the tribunal.

(21) The claimant found consideration under the ISAP extremely upsetting, disturbing and unpleasant. At all times the claimant was keen to work and did not wish to take any time off work. She was afraid of taking any further time off work and worked at times despite the pain that she was suffering.

 

Reasonable adjustments

 

(22) The claimant was examined by the HR staff, independent occupational health therapists and other advisers appointed by the respondent.

 

(23) On 7 November 2013 the claimant requested that reasonable adjustments be made for her in the workplace.

 

(24) On 11 November 2013 Mark White conducted an ergonomic assessment. Following further interviews and correspondence, from 3 December 2013, with Jennifer Patterson from Access to Work and subsequently an interview on 18 March 2014 with Heather Mills, the occupational health therapist,
Grainne Armstrong (Armstrong Health Profession), did a further independent assessment on 28 May 2015.

 

(25) In early 2014 Mr Alex Maskey, MLA, spoke to Bernie Rooney, Director, CMS, about the claimant's circumstances. Subsequent to that contact, staff officer, Paul McGibbon, spoke to the claimant about her situation. He agreed with the claimant that voice-recognition software would be tried and if it were not compatible with the claimant's system he stated that Bernie Rooney had indicated that it would not be a problem for the claimant to go on to the DDA Priority Pool List.

 

(26) Because of the difficulties that the claimant had using the keyboard in July 2014 the respondent tried voice-recognition software to remove the need for her to use her hands when operating the software. By August 2014 it was clear that this was not successful as the claimant still had to use her hands in order to choose options offered for the various actions that she was required to do on computer on drop-down menus. Despite that the claimant did not meet with her Disability Liaison Officer until 21 April 2015 because the pre-determined trial period had not elapsed.

 

(27) Because of the necessity to use her hand with drop-down menus regularly the voice-recognition software did not resolve the claimant's difficulties. Theresa Toal, Disability Liaison Officer, had advised the claimant's staff officer, Paul McGibbon, on 21 August 2014 that the voice-recognition software performance improves with usage and time and she wanted the trial period to continue. While Ms Toal's comment was not disputed, the claimant's problem was not the inability of the system to recognise her voice or her familiarity with the software but the fact that the drop-down menus were a frequent part of her work on the computer and she could not do this task using the voice-recognition software. Carrying out this task manually adversely affected her hands. The claimant's particular difficulty operating a hand-operated mouse for the drop-down menus was not going to change or improve with usage and time. This was evident from August 2014.

 

(28) However on 14 January 2015 Clifford Doherty, CMS HR business partner, proposed to Theresa Toal, as a solution to the claimant's problems with manually operating drop-down menus, the use of a mouse that she could operate with her foot. The claimant was not asked about the use of a foot-operated mouse until around April 2015 and she indicated that she was willing to try it. Theresa Toal could not obtain a foot-operated mouse from her usual supplier so she asked departmental IT what support it could give to the claimant. Nothing was forthcoming from this enquiry and it is not clear what Ms Toal thought might emerge from this enquiry. It was never explained to the tribunal what would have been the respondent's difficulty in asking its supplier to requisition a foot-operated mouse or obtaining a foot-operated mouse from a different supplier.

 

(29) In addition, though not a doctor, Ms Toal believed that as the claimant was diabetic, using a foot-operated mouse could possibly damage the claimant's foot. Ms Toal did not make any reference to the OHS in relation to this matter nor seek advice from OHS in relation to this matter nor seek any professional opinion as she could have done under the ISAP.

 

(30) In January 2015 the claimant's doctor had advised her to cease working with a keyboard. Following an interview Paul McGibbon, the claimant's staff officer, advised her not to perform any further work that would cause damage to her hands.

 

(31) It appears that the practice within each government department is that where an employee of the department requires reasonable adjustments the department must firstly consider reasonable adjustments to the job the employee is doing to enable the employee to continue in the job. Where this is not possible then the department must look for a job at the same or similar grade that the employee can do or can do with reasonable adjustments within the department. When that exercise has been completed, and if no suitable job or reasonable adjustments is available the employee may be referred for consideration for inclusion in the DDA Priority Pool List which results in a trawl of suitable jobs with or without reasonable adjustments throughout all government departments. Being on the DDA Priority Pool List carries with it some preferential consideration for other jobs and priority for any suitable posts even within the employee's own department.

 

(32) From February 2014 the claimant had raised the possibility of being considered for the DDA Priority Pool List. The claimant applied to be considered for inclusion in the DDA Priority Pool List. At a meeting on
21 April 2015 Theresa Toal informed the claimant that a reference was not possible due to a civil service embargo on moves. This was not correct. At the meeting the claimant expressed a preference to stay within her own department which Ms Toal erroneously construed as a withdrawal of her request to be considered for reference to the DDA Priority Pool List.

 

(33) From January 2015 the claimant's work was confined to working within the typing pool, photocopying and running messages between various floors of her office building. These were menial roles in comparison to the task of data entry and use of computers that she was primarily expected to discharge.

 

(34) The claimant's solicitor wrote to Paul McGibbon on 25 August 2015 to express the claimant's upset at not being considered for a transfer to a different position.

 

(35) On 23 September 2015 the claimant lodged a formal grievance seeking a move to a more suitable role anywhere in the Northern Ireland Civil Service as all available adjustments at local level had been tried and had not resolved the issue. The claimant also complained that she should have been referred to the DDA Priority Pool List and about the excessive length of time taken to address her concerns. The claimant's grievance was not upheld by Pauline Forbes on 18 January 2016. In so concluding Pauline Forbes had regard, to the claimant's work history and the following matters:-

 

(1)          sufficient time had not been given to test the voice-recognition software equipment provided;

 

(2)          the claimant's preference to remain within the CMS was construed, as an expression of the claimant's non-interest in a reference to the DDA Priority Pool List; and

 

(3)          that as the Northern Ireland Civil Service guidance on identifying and implementing reasonable adjustments had changed on 28 November 2014 and there had not been any application under the new policy received from the claimant requesting relocation as an adjustment.

 

The rejection of the claimant's grievance was upheld on appeal on 18 April 2016.

 

(36) On 16 February 2016 the claimant submitted a reasonable adjustment application via Jim Madden. In it a request was made for a signposting role or a post where voice-recognition software was compatible with the departmental software system.

 

(37) Prior to 23 February 2016 the respondent had checked throughout the wider department for a suitable post which equated to the claimant's roles. However none had been identified to that date. Theresa Toal, at that time, authorised liaising with other departments to determine if a reception or a signposting role was available which was compatible with the voice recognition software, to see if any role could be identified.

 

(38) On 24 February 2016 the claimant's case was submitted to the DDA Central Review Panel for consideration for inclusion in the DDA Priority Pool List. They deferred making a decision until the result of the ill-health retirement consideration was known.

 

(39) The claimant's department agreed to provide background information, regarding the claimant's situation, to be circulated to see if there was any suitable post within the Northern Ireland Civil Service that could accommodate the reasonable adjustments required.

 

(40) The OHS examination on 10 October 2016 concluded that the claimant had significant problems with both hands which were persisting with little improvement following surgery. The claimant, it concluded, could return within 4-6 months to a post without excessive computer work or where suitable voice-recognition software could be used.

 

(41) The claimant has not been offered any such post and still has not been included on the DDA Priority Pool List.

 

(42) The claimant finds her lack of capacity to complete tasks depressing and demoralising. The refusal to be included on the DDA Priority Pool List is hurtful and frustrating, she stated. She feels humiliated and regards herself as a liability to the respondent. She feels that she is without purpose in work with no clear daily routine or assistance.

 

(43) The respondent maintains that being placed on the DDA Priority Pool List may not have actually led to a transfer to an alternative post.

 

(44) The claimant also believes that the respondent has not respected her disability and has given up on her. The delay before trying the voice recognition software and subsequently meeting with the Disability Liaison Officer about this adjustment was excessive. The claimant is depressed and attends her GP for treatment. The threat of disciplinary proceedings intensifies her depression.

 

(45) The claimant is not making a claim for loss of earnings and is seeking compensation for injury to feelings only.

 

THE LAW

 

5. (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 person discriminates against a disabled person if he fails to comply with the duty to make reasonable adjustments imposed on him in relation to the disabled person. (Section 3A(2) Disability Discrimination Act 1995, as amended.)

 

(3) Where 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 affect. For the purposes of this section the disabled person concerned means a disabled person who is an employee of the employer concerned (Section 4A(1) and (2) Disability Discrimination Act 1995, as amended.)

 

(4) In Royal Bank of Scotland v Ashton [2011] ICR 632, Langstaff J held that:-

 

" ... an Employment Tribunal - in order to uphold a claim that there has been a breach of the duty to make reasonable adjustments and, thus, discrimination - must be satisfied that there is a provision, criterion or practice which has placed the disabled person concerned not simply at some disadvantage viewed generally, but at a disadvantage which is substantial and which is not to be viewed generally but to be viewed in comparison with persons who are not disabled. "

 

On the facts of the case, where the employer's sickness policy was (eventually) applied to the employee, leading to her receiving a warning and the withholding of sick pay, the tribunal were found to have erred in concluding that there had been a failure to make reasonable adjustments. The EAT warned that the examination must not be of the way in which an employer had treated an employee generally or their thought processes, but rather, the focus should be an objective analysis on the practical result of the measures which could be taken. ( Harvey on Industrial Relations and Employment Law, at L [397.01].)

 

(5) Carranza v General Dynamics Information Technology Ltd [2015]
IRLR 43 [2015] ICR 169 concerned a claim that in applying a Sickness Absence Policy and dismissing the claimant, there had been a failure to make a reasonable adjustment of disregarding disability-related absence. The EAT were found to have correctly identified the PCP as 'a requirement for consistent attendance at work'. The EAT noted that in the earlier cases of Royal Bank of Scotland v Ashton [2011] ICR 632 and Griffiths v Secretary of State for Work and Pensions (before the EAT [2014] EQLR 543), the 'PCPs' had been defined by reference to sickness absence procedures of attendance procedures and their application, and where those procedures had already been modified to cater for disability, it was said to have led to 'insuperable difficulty in those cases in establishing substantial disadvantage compared to persons who were not disabled'. In Carranza the EAT held that 'the PCP should identify the feature which actually causes the disadvantage and exclude that which is aimed at alleviating that disadvantage'. The adjustment contended for to alleviate the disadvantage was to disregard an earlier warning, but the EAT did not consider 'the mere mental process of disregarding a warning' to be the kind of step contemplated by the EQA 2010. Elias L J, giving judgement of the Court of Appeal in Griffiths [2015] ECA Civ 1265, [2016] IRLR 216, overturned the judgement of the EAT; the correct PCP was indeed a requirement for consistent attendance at work, such that the claimant's disability-related absences was at a substantial disadvantage as compared to non-disabled employees by reason of the greater risk of being subjected to disciplinary sanctions ... What is 'reasonable' thereafter might or might not include disregarding some or all of the disability-related absences - that is a question of fact for the tribunal (Harvey on Industrial Relations and Employment Law L[389.03]).

 

(6) ... The Court of Appeal have now held, however, that the correct formulation of the PCP is a requirement for an employee to maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions: Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265, [2016] IRLR 216. In so formulating the PCP it was clear that a disabled employee whose disability increases the likelihood of absence from work is disadvantaged when compared to non-disabled employees as they are obviously at greater risk of being absent on grounds of ill-health. It may then be a reasonable adjustment to alter trigger points at which disciplinary action will be considered. (Harvey on Industrial Relations and Employment Law L[396.03]).

 

(7) As was noted in the House of Lords in its decision Archibald v Fyfe Council [2004] UKHL 32 [2004] IRLR 651 [2004] ICR 594 (per Baroness Hale at Paragraph 47), the duty necessarily requires the disabled person to be treated more favourably in recognition of their special needs. It is thus not just a matter of introducing a 'level playing field' for disabled and non-disabled alike, because that approach ignores the fact that disabled persons will sometimes need special assistance if they are to be able to compete on equal terms with those who are not disabled ... ( Harvey on Industrial Relations and Employment Law, L at [398.01]).

 

(8) To determine whether it is reasonable to take the step to comply with a duty to make reasonable adjustments regard will be had to the following matters:-

 

(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 to take the steps;

 

(c) the financial and other costs which would be incurred by him in taking the step to 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; and

 

(f) the nature of his activities and the size of his undertaking (Section 18B(1) Disability Discrimination Act 1995, as amended).

 

(9) Where on the hearing of a complaint under the Disability Discrimination Act 1995, as amended, of direct discrimination or failure to make reasonable adjustments the complainant proves facts from which a tribunal could conclude, in the absence of an adequate explanation, that a respondent has acted in a way unlawful under the Act a tribunal shall uphold the complaint unless the respondent proves that he did not so act (Disability Discrimination Act 1995, as amended, Section 17A(1C)).

 

(10) The Northern Ireland Court of Appeal in MacDonagh & Others v Samuel John Hamilton Tom, t/a The Royal Hotel Dungannon [2007] NICA 3 stated that when considering claims of discrimination, tribunals must have regard to the burden of proof. The correct approach to the burden of proof in all discrimination claims is that as set out in the annex to the decision to the English Court of Appeal in Igen  v  Wong [2005] 3 ALL ER 812.

 

(11) There are three broad bands of compensation of injury to feelings which are:-

 

(a) The top band should normally be between £18,000 and £30,000. Sums in this range should be awarded in the most serious cases such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. Only in the most exceptional case should the award of compensation for injury to feelings exceed £30,000.

 

(b) The middle band between £6,000 and £18,000 should be used for serious cases, which do not merit an award in the highest band.

 

(c) Awards of between £500 and £6,000 are appropriate for less serious cases, such as where the act of discrimination is isolated or a one-off occurrence. In general, awards of less than £500 are to be avoided altogether as they risk being regarded as so low as not to be a proper recognition of injury to feelings ( Vento v Chief Constable of West Yorkshire (No 2) [2003] IRLR 102 CA as amended by Da'Bell  v NSPCC [2010] IRLR 19 EAT ) De Souza v Vinci Construction (UK) Ltd EWCA Civ 879).

 

(12) 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 in which the act complained of was done. (Schedule 3(3) Disability Discrimination Act 1995, as amended).

 

(13) 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).

 

(14) In determining whether there was "an act extending over a period", as distinct from a succession of unconnected or isolated specific acts, for which time would begin to run from the date when each specific act was committed, the focus should be on the substance of the complaints that the employer was responsible for an ongoing situation or a continuing state of affairs. The concepts of policy, rule, practice, scheme or regime in the authorities were given as examples of when an act extends over a period. They should not be treated as a complete and constricting statement of the indicia of "an act extending over a period". ( Hendrick v Commissioner of Police for the Metropolis [2003] IRLR 96 CA).

 

(15) Where a tribunal makes an award under the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination cases) Regulations (Northern Ireland) 1996 it shall, whether an application has been made or not, consider whether to award interest in any sum awarded. (Regulation 3 Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination cases) Regulations (Northern Ireland) 1996).

 

(16) The interest shall be applied at the same rate as is in force, during the period for which is to be calculated, in relation to decrees in the County Court and shall be calculated as simple interest which accrues from day to day (Regulation 4 Industrial Tribunals (Interest on Awards and Sex and Disability Discrimination cases) Regulations (Northern Ireland) 1996).

 

(17) Where interest is being considered in relation to an injury for feelings award the date for beginning the calculation of the interest is the date of the first act of discrimination and ends on the day of calculation when the award is calculated by the tribunal. (Regulation 5 Industrial Tribunal (Interest on Awards and Sex and Disability Discrimination cases) Regulations (Northern Ireland) 1996).

 

(16) The power to award interest under the Regulations is discretionary, though if the tribunal decides not to make an award, it must give reasons for its decision not to do so ... but the discretion relates only to the decision whether or not to award interest at all; if it decides to make an award there is no discretion as to the manner on which it is to be calculated, nor (save in exceptional circumstances) the period for which it shall be awarded). The tribunal must, however, consider whether to make an award even in the absence of a formal application ... (Harvey on Industrial Relations and Employment Law, P1 [1130]).

 

Application of the law and findings of fact to the issues

 

6. (1) It is accepted that the claimant is a disabled person for the purposes of the Disability Discrimination Act 1995 as amended.

 

(2) By reason of the claimant's various disabilities, any use of a computer which involved the use of a manually-operated mouse or the requirement to choose options manually from drop-down menus or the use of a keyboard were difficult for the claimant.

 

(3) The requirement for a consistent attendance at work is a PCP which grounds the claimant's claim for discrimination by reason of a failure to make reasonable adjustments. The PCP was implemented by use of the respondent's ISAP.

 

(4) The claimant's comparators are those persons who, by reason of illness were subject to the ISAP but were not disabled.

 

(5) The claimant was at a substantial disadvantage as compared to non-disabled employees by reason of the greater risk to her of being subject to disciplinary sanctions.

 

(6) The tribunal is satisfied therefore that the duty to make reasonable adjustments is engaged and that the respondent is under a duty to take such steps as are reasonable to prevent the PCP causing a substantial disadvantage to the claimant.

 

(7) The respondent has made a number of reasonable adjustments to enable the claimant to continue in her employment. They include; giving her increased breaks; reducing her workload; and providing assistance to her to do some of her duties.

 

(8) However, these adjustments were not sufficient to enable the claimant to discharge the duties in accordance with her contract. Specifically her disabilities meant that the use of a manually-operated mouse to do her computer work, which was an integral and substantial part of her work, could not be done by her.

 

(9) To deal specifically with the problem, the respondent introduced voice- recognition software to reduce the manual use of the computer by the claimant. This only partially addressed the problem. As part of the claimant's computer work she was frequently required to choose options from drop-down menus. This had to be done by the manually-operated mouse. The voice recognition software did not address this particular aspect of the claimant's work.

 

(10) The voice-recognition software was introduced in July 2014. It was obvious by August 2014 that, for the reason stated above, the voice-recognition software alone would not address the problem yet the respondent refused to evaluate its effectiveness until 21 April 2015 because voice-recognition software needs time to become accustomed to the user's voice and for the user to become skilful in its use. This totally ignored the claimant's problem which was not going to be cured by the passage of time or the use of the voice-recognition software.

 

(11) In January 2015 a potential solution to the claimant's problem was proposed by Clifford Doherty, CMS HR business partner, ie, by accompanying the voice-recognition software with a foot-operated mouse. Though this was proposed by the respondent's HR business partner, Teresa Toal did not implement it because the supplier she used did not have a foot-operated mouse in supply. There was not any evidence before the tribunal of attempts to secure the foot-operated mouse through the respondent's existing supplier or from another supplier or any explanation as to why that could not be done.

 

(12) Ms Toal, although not a qualified medical person, relied on anecdotal comment, of which she was aware, to exclude a foot-operated mouse lest it cause injury to the claimant's foot as she suffered from diabetes. Ms Toal did not take medical advice on this matter or refer it to the OHS despite the fact that the claimant was willing to try it.

 

(13) There was not any evidence before the tribunal to suggest that the use of a foot-operated mouse in conjunction with voice-recognition software would not prevent the effect in relation to which the duty would be imposed; nor that such a step was impractical; nor that financial or other costs would be prohibitive; nor that the respondent lacked the financial resources; nor that the respondent's size or resources would obviate the duty to make such a reasonable adjustment.

 

(14) By not implementing the adjustment, which the tribunal considers would have prevented the substantial disadvantage to the claimant and was reasonable, the respondent was in breach of its duty to make reasonable adjustments. The respondent has therefore committed an act of disability discrimination.

 

(15) In the absence of any evidence to the contrary the tribunal consider this act of discrimination occurred in January 2015 when the foot-mouse was proposed even though the respondent was aware from August 2014 that the voice-recognition software alone did not address the claimant's substantial disadvantage.

 

Non-application of ISAP as a reasonable adjustment

 

(16) The claimant appears to be making two cases under this heading; -

(a) that the warning to the claimant that she would be monitored and the risk to her if her future absences were deemed unsatisfactory, should not have been applied to her; and

(b) that the formal warnings under the ISAP should not be applied to the claimant at all.

 

(17) The claimant submits that the issue of the warning about future attendance after the three occasions, relevant for the purposes of this claim, in which the claimant was considered under the ISAP for a warning, should have been removed as a reasonable adjustment.

 

(18) Merely to remove the warnings about future attendance, while otherwise leaving the ISAP intact and applicable, would not remove the risk of a sanction being imposed on the claimant but would only remove a reminder that she is at risk which arguably would put the claimant in a worse situation.

 

(19) Whilst the terms of the three warnings are wider than provided under the ISAP, as mentioned above, the suspicion is that they are standard formulae used although no evidence on this point was provided to the tribunal.

 

(20) It is submitted, on behalf of the claimant, that these warnings were given to her because she suffered from a disability. There was insufficient evidence before the tribunal to sustain that contention and therefore the tribunal does not accept it.

 

(21) The tribunal is not persuaded that the removal of the warnings would have a practical effect on the claimant's situation to enable her to overcome the substantial disadvantage to which she was subject and therefore does not accept that in the circumstances it amounts to a reasonable adjustment.

 

(22) The second aspect in relation to the non-application of the formal warnings to the claimant give rise to two considerations:-

 

(a) should the ISAP not be applied to disabled persons at all as an adjustment, or

 

(b) if it is to be applied should some step be taken to modify it to prevent it causing a substantial disadvantage to the claimant.

 

(23) Whether an adjustment is a reasonable adjustment is a matter for the tribunal and has to be determined objectively (see Griffiths v The Secretary of State for Work and Pensions [2016] IRLR 216).

 

(24) The non-application of the ISAP in its entirety does not meet the test of being a reasonable adjustment. It fails in a number of respects. The ISAP itself contains within it a discretion to modify the policy in the disabled worker's favour thereby preventing discrimination. It would therefore not in fact be sufficient to constitute a PCP that would cause substantial disadvantage to the claimant because it contains the provision whereby the requirements of the DDA can be taken into account (see paragraph 5(5) above). In addition it fails to satisfy the approach set out in the case of Ashton.

 

(25) Whilst to disapply the ISAP is capable, in principle, of ameliorating the disadvantage resulting from the operation of the ISAP to disapply the policy in its entirety would defeat an employer's attempt to manage the attendance of disabled persons and promote attendance at work. In those circumstances an employer could never promote the attendance at work of disabled employees who were off work by reason of disability and might therefore be forced to retain the disabled employees who could not render service which would be an economic disaster for any business.

 

(26) The second consideration is should the ISAP be modified by the taking of any step to prevent substantial disadvantage to the claimant.

 

(27) The only step identified to the tribunal was the non-administration of written warnings to the claimant. This in effect amounts to the non-application of the ISAP to the claimant. That seems to the tribunal to fail the PCP test and not to be a reasonable adjustment.

 

(28) It is difficult to imagine an alternative scenario when formal warnings are not administered sometimes that is rational and logical. Perhaps something that changed the review point for disabled persons or disregarded a number of warnings before the full rigors of the ISAP were applied might suffice but such an approach was not the subject of evidence before the tribunal, or part of the claimant's contentions.

 

(29) Any other non-application on a case by case basis is either arbitrary, which is an approach criticised by the Court of Appeal in Griffiths or is back to the way the respondent sought to operate the ISAP.

 

(30) The tribunal therefore concludes that the above types of modifications are not reasonable if they amount to a non-application of the ISAP for the reasons set out above, or are vague, uncertain and arbitrary.

 

Placement on the priority pool list (PPL)

 

(31) It is submitted, on behalf of the claimant, that the requirement for her to perform computer duties and duties involving the use of her wrists, hands and fingers amounts to a PCP which causes substantial disadvantage to the claimant. The tribunal accepts the claimant's submission. It is further submitted, on behalf of the claimant, that referring the claimant for consideration for placement on the PPL is a reasonable adjustment that the respondent should have made in order to give her the opportunity to apply for a post or to put her in a suitable post which would also be a reasonable adjustment.

 

(32) The respondent did not refer the claimant for consideration for inclusion on the PPL until 24 February 2016 and then paused the application pending resolution of an ill-health retirement consideration. The respondent had relied on a number of factors to not refer the claimant for consideration of placement on the PPL, viz, that a reference is not an adjustment as the act of reference does not change the claimant's position; that the search for an internal post must be exhausted first; that transfers could not be made at that time; and that the claimant had abandoned her request to move when she expressed a preference to remain within her own department.

 

(33) The respondent was wrong in saying a transfer could not be made. It was also wrong by concluding that the preference to stay within her own department amounted to an abandonment of her desire to be referred for consideration of being placed on the PPL.

 

(34) The tribunal is satisfied that the claimant had applied from 2014 for consideration of a reference to the PPL and the respondent was aware of this and should have considered it from August 2014.

 

(35) While the respondent did, on an ad hoc basis, make enquiries about positions in other departments for the claimant they did not amount to an application to be considered for the PPL and lacked the authority of the PPL list which gives priority to disabled persons for suitable vacancies even within the disabled employee's own department. The making of enquiries outside of the claimant's own department does not appear to be consistent with the respondent's position of exhausting reasonable adjustments within a disabled employee's own department before considering a reference outside of that department through the PPL.

 

(36) While the respondent cites its policy of exhausting potential vacancies within an employee's own department first, apart from a foot-operated mouse there was not any evidence before the tribunal of what else the respondent could do within its own department that had not already been done and that might produce a suitable result after January 2015. The respondent seemed to have exhausted any ideas it had of resolution within the claimant's own department as the claimant had not suggested any other reasonable adjustment save for her willingness to try a foot-operated mouse with voice- recognition software.

 

(37) The claimant challenges whether having a policy of exhausting reasonable adjustments within the claimant's own department is consistent with Section 18B(2) of the Disability Discrimination Act 1995.

 

(38) The tribunal does not have to adjudicate on this as the evidence before the tribunal is that apart from the foot-operated mouse, the respondent had exhausted all potential reasonable adjustments within the claimant's own department.

 

(39) The tribunal would need further evidence and argument on the point as to whether the respondent's practice of exhausting potential suitable posts within her own department must occur before reference is made for consideration for the PPL. However it seems to the tribunal that Section 18B(2) of the Disability Discrimination Act 1995 (as amended) and the respondent's policy of exhausting potential reasonable adjustments within the worker's own department may not be consistent.

 

(40) The legal authorities make it clear that any reasonable adjustment must prevent the PCP from placing the worker at a substantial disadvantage. It is further clear that consultations, trials and exploratory investigations do not qualify as reasonable adjustments.

 

(41) It seems to the tribunal that the consideration of referring the claimant to the PPL is of a different type. Accordingly, following the approach of the EAT in Leeds Teaching Hospital NHS Trust v Foster UKEAT/0552/10, paragraphs 16 and 17, all that is required is that there was a prospect of the employee returning to work.

 

(42) The tribunal was not provided with evidence of the potential other jobs that might be suitable to the claimant within the Northern Ireland Civil Service as a whole but outside her own department. However the Northern Ireland Civil Service is a huge employer within Northern Ireland and following the reasoning of the EAT in the Leeds case, where the employer was a significant employer within an area and the undertaking was of considerable size it is open to the tribunal to find, which we so find, that there was a good prospect let alone a prospect that a post at the claimant's level outside her own department would have become available and would have been suitable for her. (See paragraph 21 of decision in Leeds case).

 

(43) Accordingly the tribunal concludes that reference for consideration of inclusion on the PPL constitutes a reasonable adjustment that the respondent should have made by January 2015. The respondent is therefore in breach of its duty to make a reasonable adjustment.

 

Time issue

 

(44) The claimant brought her claim on 13 April 2016. The primary limitation period extends back to 13 January 2016. The tribunal has found that the respondent failed to make reasonable adjustments for not providing to the claimant a foot-operated mouse and referring her for consideration under the PPL. The two reasonable adjustments are linked as they were part of the claimant's attempts to persuade the respondent to make reasonable adjustments for her. The tribunal is satisfied, following the reasoning in the Hendricks case that this amounted to an act extending over a period of time and is evidence of a continuing discriminatory state of affairs.

 

(45) Doing the best that it can the tribunal concludes that the claimant has suffered disability discrimination by failure of the respondent to make reasonable adjustments.

 

(46) The tribunal considers that on the basis of the claimant's evidence her injury to feelings falls within the middle band of Vento and feels that an appropriate amount of compensation is £8,000.

 

(47) Where a tribunal makes an award for injury to feelings it is obliged to consider making an award of interest from the date of the first act of discrimination, August 2014, to the calculation date 23 March 2018.

 

(48) There was not any argument made to the tribunal as to why interest should not be awarded or the period for the interest varied. Nor did anything emerge in the course of the evidence which amounted to exceptional circumstances that would enable the tribunal to conclude that serious injustice would be caused if an award of interest were made. Accordingly the tribunal makes an award of interest on the £8,000.00 award which it calculates at £2,291.20.

 

7. This is a relevant decision for the purposes of the Industrial Tribunals Interest Order (Northern Ireland) 1990 and the Industrial Tribunals Interest in Awards in Sex and Disability Discrimination Cases (Regulations) (Northern Ireland) 1996.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 15-17 February 2017, 6, 9 and 10 March 2017 and

12 May 2017, at Belfast.

 

 

Date decision recorded in register and issued to parties: