Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REFS:   2310/16

2311/16

2813/17

CLAIMANTS:                       Lynn Sheridan

                                                Thomas Dalzell Sheridan

 

 

RESPONDENTS:               1.         Peninsula Business Services Ltd

                                                2.         B Stern-Gillet

 

 

DECISION

 

The unanimous decision of the tribunal is that:-

 

(1)       The claims of the claimants and each of them for unlawful deduction of wages and/or breach of contract, in relation to holiday pay and/or cost of a pass are dismissed, having been withdrawn following settlement between the parties.

 

(2)       The claims of the claimants and each of them for age discrimination are dismissed, following withdrawal in the course of the substantive hearing.

 

(3)       The claim of the second claimant of sex discrimination is dismissed, following withdrawal, in the course of the substantive hearing.

 

(4)       The second claimant was not directly discriminated against by the respondents and each of them, pursuant to the Disability Discrimination Act 1995, as amended.

 

(5)       The first respondent failed in its duty to make reasonable adjustments for the second claimant, pursuant to the Disability Discrimination Act 1995, as amended. 

 

(6)       The first claimant was unfairly constructively dismissed by the first respondent. 

 

(7)       The second claimant was unfairly constructively dismissed by the first respondent.

 

(8)       The tribunal makes an award of compensation to be paid by the first respondent to the first claimant in the sum of £12,758.00.

 

(9)       The tribunal makes an award of compensation to be paid by the first respondent to the second claimant in the sum of £18,443.26.

 

 

 

Constitution of Tribunal:

 

Employment Judge:          Employment Judge Drennan QC

 

Members:                             Dr C Ackah

                                                Mr I Atcheson

 

Appearances:

 

The claimants were represented by Mr R L McCartney Queen’s Counsel (in a personal capacity).

 

The respondents were represented by Ms S Bradley, Barrister-at-Law, instructed by Mr Potts, Solicitor, of Peninsula Business Services Ltd.

 

Reasons

 

1.1       The first claimant presented a claim to the tribunal on 4 November 2016, to which the respondents presented a response to the tribunal on 15 December 2016, in which they denied liability for the said claims set out in the first claimant’s claim form.  The second claimant presented a claim to the tribunal on 4 November 2016.  The respondents presented a response to the tribunal on 15 December 2016, in which they denied liability for each of the said claims set out in the second claimant’s claim form.

 

            The second claimant presented a further claim to the tribunal on 5 May 2017, to which the respondents presented a response to the tribunal on 22 June 2017 in which they denied liability for the each of the said claims set out in the second claimant’s claim form.  The said claims were subsequently made the subject of an Order for Consolidation pursuant to the Rules of Procedure enabling all the said claims, referred to above, to be considered together and by the same tribunal.

 

            In a decision recorded in the Register and issued to the parties on 3 July 2017, the President, at a pre-hearing review, refused the second claimant’s application to amend his claim to add a claim of victimisation, pursuant to the Disability Discrimination Act 1995, as amended.  She also refused the second claimant’s application to include a claim of indirect disability discrimination, pursuant to the 1995 Act, since the disability discrimination legislation in Northern Ireland, unlike the position in Great Britain, does not give the industrial tribunal jurisdiction to hear and determine a complaint of indirect discrimination on the ground of disability.

 

1.2       At the commencement of the substantive hearing and during the course of the substantive hearing, the claims of the claimants and each of them for age discrimination and/or the claim of the second claimant for sex discrimination were withdrawn and are therefore dismissed.  Further, the claim of the claimants and each of them for unlawful deduction of wages and/or breach of contract in relation to holiday pay and/or cost of a pass were withdrawn following settlement between the parties and are therefore dismissed.

 

1.3       Subject to the foregoing, and in accordance with the tribunal’s normal                       case-management directions/orders, made at previous Case Management Discussions in this matter but also confirmed at the commencement of this hearing, it was agreed that the following claims by the claimants, and each of them, against the respondents, and each of them, remained to be determined by the tribunal, namely:-

 

                        “(i)       Whether the second claimant was a disabled person at the material time, pursuant to the Disability Discrimination Act 1995, as amended; and, if so, whether the second claimant was directly discriminated against by the respondents, and each of them, pursuant to the Disability Discrimination Act 1995, as amended and/or the first respondent failed in its duty to make reasonable adjustments for the second claimant, pursuant to the Disability Discrimination Act 1995, as amended.

 

                         (ii)       Whether the claimants, and each of them, were unfairly constructively dismissed by the first respondent.”

 

            It was agreed by the parties, which the Tribunal accepts, that, in relation to the claims of unfair constructive dismissal, no issues of time arose, which required to be determined by the tribunal given the date of resignation by the claimants and said date of presentation of their claims to the tribunal.  In relation to the second claimant’s of direct disability discrimination and/or failure by the first respondent to make reasonable adjustments, pursuant to the Disability Discrimination Act 1995, as amended by the parties, it was agreed, which the Tribunal accepts, that no time-issues relating to those claims, if any, were required to be determined in the course of this substantive hearing; as it was agreed that any act of discrimination and/or duty to make reasonable adjustments required to be determined by the tribunal, pursuant to the Disability Discrimination Act 1995, as amended, occurred on or about 5 August 2016 (date of meeting – see later), or in the period from the date of the said meeting to the date of the termination of the employment of the second claimant; and the said claims were therefore in time, given the date of presentation of their claims to the tribunal on 4 November 2016.

 

1.4       At the commencement of the substantive hearing, the claimants, and each of them, confirmed that, if the tribunal found their said dismissal was unfair, that each wished to obtain, by way of remedy, an award of compensation and, in particular, they did not seek an Order of Reinstatement and/or Re-engagement, pursuant to the provisions of Article 147 – 151 of the Employment Rights (Northern Ireland) Order 1996.

 

1.5       At the commencement of the substantive hearing, the respondents’ representative confirmed that the respondents did not accept that the second claimant was a disabled person, who had a disability for the purpose of the Disability Discrimination Act 1995 and that medical evidence by consultants would require to be heard by the tribunal in order for the tribunal to make a decision on this issue.  It was not disputed, by the respondents’ representative, that the first respondent was vicariously liable for the acts of the second respondent and/or any other employee of the first respondent, in relation to any acts or omissions of them, or each of them, for the purposes of these proceedings, pursuant to the Disability Discrimination Act 1995, as amended, and/or the Employment Rights (Northern Ireland) Order 1996.

 

1.6       During the course of the substantive hearing, it was agreed that any allegations which the first claimant had, in relation to her claim of unfair constructive dismissal relating to the alleged actions of Ms W were withdrawn and were not to be proceeded with; with the consequence that the witness statement of Ms W was withdrawn by the respondents and was not admitted in evidence before the tribunal.

 

2.1       The tribunal heard oral evidence, from both of the claimants, and also Dr C Kelly, Consultant Psychiatrist, and Mr I MacLean; and on behalf of the respondents from Dr G Loughrey, Consultant Psychiatrist, the second respondent, Mrs B Cameron and Mr R Cater.  Having considered the evidence given to the tribunal by the parties and their witnesses, as referred to above, the documents in the trial bundle, as amended during the course of the hearing, and to which the tribunal was referred, together with the oral submissions of the claimants’ representative, which primarily addressed the factual but not the legal issues, and the oral and written submissions of the respondents’ representative, the tribunal made the following findings of fact, as set out in the following sub-paragraphs, insofar as necessary for the determination of the claims of the claimants and each of them.

 

2.2       The first claimant (Mrs Sheridan), who at all material times lived and had her home in Donaghadee, Co Down, Northern Ireland, commenced employment with the first respondent (‘Peninsula’) on or about 18 June 2007, as an advocacy case worker within the advocacy department of Peninsula.  She was born on 8 July 2961 and at the date of the termination of her employment on 19 October 2016 was aged 55 years.  This appointment followed an interview with Ms Julie English, (a senior manager in the said department – see later) who explained in the course of the interview she would be home based, and not office based; but would be expected to work, if needed, in England/Wales and Scotland in addition to Northern Ireland.

 

            It was not disputed her contract of employment contained, in particular, for the purposes of these proceedings and the issues to be determined by the tribunal, the following terms which were contained in the Statement of Main Terms of Employment, signed by Mrs Sheridan.

 

                        “Job Title:- Advocacy Care Worker

 

                        Place of Work

 

                        “You will normally be required to work from your home.  You will also be required to visit head office in Manchester when requested.  You will not be required to work outside the United Kingdom ….” (Tribunal emphasis).

 

                        It was also not disputed the Employee Handbook formed part of her said contract of employment, which said handbook contained, in particular, the following terms:-

 

                        “(D) Job Flexibility

 

                        It is an express condition of employment that you are prepared, whenever necessary, to transfer to alternative departments and/or duties within our business.  For example, during holiday periods, etc, it may be necessary for you to take over some duties normally performed by colleagues.  This flexibility is essential as the type and volume of work is always subject to change, and it allows us to operate efficiently and gain maximum potential.”

 

                        “(E) Mobililty

 

                        Although you may usually be usually employed at one particular location, it is a condition of your employment that you are prepared, whenever applicable, to work at the other locations.  This particularly applies to consultants and sales staff.  This flexibility is essential to the smooth running our business and is not necessarily an indication that we would require you to live in a different of the UK.”  (Tribunal emphasis)

 

2.3       The second claimant, (Mr Sheridan), on 25 April 2005 commenced employment with Peninsula as Employment Tribunal Advocate.  He was born on 20 May 1956 and at the date of the termination of his employment on 19 October 2016 was aged 60 years.  In the letter of offer of employment, dated 22 February 2005, it was stated, inter alia:-         

 

                        “Whilst clearly you will be primarily required to work out of Northern Ireland, your acceptance is conditional upon your willingness to work out of any of the Employment Tribunal regions in the United Kingdom and undertaking client business as appropriate. 

 

                        His contract of employment contained, in particular, for the purposes of these proceedings and the issues to be determined by the tribunal the following terms in the Statement of Main Terms of Employment, signed by
Mr Sheridan.

 

                        A Job Title

 

                        Employment Tribunal Advocate

 

                        Place of Work

 

                        “You will normally be required to work from your home and visit clients’ premises and other locations within the United Kingdom.  You will also be required to visit Head Office in Manchester when requested.  You may be required to work outside the United Kingdom.”  (Tribunal emphasis)

 

            It was also not disputed the Employment Handbook formed part of the said contract for employment of Mr Sheridan and which also contained, in particular, the said terms in relation to Job Flexibility and Mobility, as set out above in relation to Mrs Sheridan. 

 

2.4       Prior to commencing employment with Peninsula, Mr Sheridan was a member of various parts/sections of the security forces in Northern Ireland, during the period of what has become known as “the troubles”, during which he did certain specialist work but also witnessed many incidents causing him subsequent flashbacks and periods of stress and anxiety and depression (see later); and, as a consequence, he was always conscious of the need to ensure his personal security wherever he was required to work.  Prior to working with Peninsula, Mr Sheridan worked for Mr R. L. McCartney QC, (the claimant’s representative in these proceedings) in connection with Mr McCartney’s role as a member of Parliament from in or about 1996 to 2005, who permitted Mr Sheridan to vary his work hours, to work from home, to see constituents, where possible, in their own homes and he also provided Mr Sheridan with a secretary to cover his constituency office in Bangor.  As part of this work, Mr Sheridan represented constituents of
Mr McCartney QC MP at Industrial Tribunals and, as a consequence, he was subsequently asked by Peninsula if he would be interested in doing similar work for Peninsula.  This led to an interview on or about 6 January 2005 with
Ms Julie English, the then advocacy and litigation manager, accompanied by
Ms Jo Hendrie, Human Resources Manager who subsequently wrote the letter of 22 February 2005 offering him engagement, as set out above.  Mr Sheridan was told by Ms English, during the course of the said interview, he would be a home based worker; and, to enable him to do this, he was fitted out by Peninsula with an office in his home from where he would be working, to include a computer, fax machine, printer, mobile phone, together with a direct dial landline phone.  In addition, he was provided with a company car to visit clients, attend tribunals, with a hands free mobile phone facility.  He was permitted to use the car for personal use outside work hours and it was also insured for Mrs Sheridan to drive. 

 

            During the course of the interview Ms English explained, in relation to flexibility and mobility clause referred to previously, although he would be home based, and therefore working from his home, that he would be required to travel from his home to carry out work at tribunals in Scotland and England, as well as Northern Ireland, and, on occasion, to visit the office of Peninsula in Manchester.  The tribunal accepts that to be a “home based worker” was a prime consideration in Mr Sheridan accepting employment with Peninsula, given his issues with his past security service and continuing concerns about his personal security.  Further, the tribunal accepts that, in the course of this interview, Mr Sheridan mentioned that he was ex-service and had problems with his personal security in Northern Ireland and that, as a consequence, like many other former members of the security forces, he had to be careful where he travelled to in Northern Ireland from his home.  However, it does not accept that Mr Sheridan went into any further detail at that time, as he was content this would not be an issue for him as a home based worker.  It was further confirmed at interview he would not be required to move to England.  At the interview, the claimant did not inform either Ms English or Ms Henry that he had a disability or indeed did he give any indication that he had any such disability.  The tribunal is also satisfied that it was at no time a term of his contract of employment that he was home based arising out of his personal security concerns.

 

2.5       Mr Sheridan carried out work as an employment tribunal advocate, both in Northern Ireland and in Great Britain, often at short notice but, at all material times, carried out this work from his home, travelling as required to the various Employment Tribunals in the United Kingdom.  Mr Sheridan was never a consultant or a member of the sales staff.  In Northern Ireland, such tribunals are known as Industrial Tribunals; whereas in Great Britain they are known as Employment Tribunals and resulted in Mr Sheridan’s job title of Employment Tribunal Advocate in parity with his colleagues in Great Britain.

 

2.6       In or about January 2011, Mr Sheridan became team leader in field development, which required him to supervise several home based advocates in Great Britain, until this role was made redundant in or about June 2014.  However Mr Sheridan continued to operate from his home, as before, despite taking on this additional role.  In or about the summer of 2014, after ceasing as team leader, there was some discussion/interview with his then line managers about Mr Sheridan having a more “senior” role as a legal service consultant (lead consultant – Northern Ireland); but the tribunal is satisfied this was never agreed and further, Mr Sheridan remained, at all material times, as an Employment Tribunal advocate and never became a consultant; albeit his remuneration as team leader remained.  It is correct to note that, in various documents, including emails/appraisal/review documents, produced in evidence, Mr Sheridan is referred to as senior litigation consultant/litigation consultant.  Not without some hesitation, the tribunal is prepared to accept, that at various periods during the course of Mr Sheridan’s employment, Peninsula have used various different job titles for employees of Peninsula, who were carrying out the work/role carried out by Mr Sheridan and other home based advocates; and, on occasion, this has resulted in him being so referred in Peninsula computer generated standard/template documents.  However, it remains satisfied that, at no material times, was there any formal contractual changes to Mr Sheridan’s job title, as Employment Tribunal Advocate, which remained the same, as per his original contract of employment, save during the limited period he was also a team leader.  However, the tribunal has no doubt Mr Sheridan always considered himself more senior than other home based Employment Tribunal advocates employed by Peninsula and was, at all times, anxious to have that seniority recognised in some way and, as a consequence, he did not pay much attention to this use of such other titles by Peninsula in the said documents.  However, if there had been such a formal contractual change, the tribunal would have expected to see produced in evidence by Peninsula, which there was not, relevant amended contractual documents, signed by the parties.

 

2.7       Mrs Sheridan, as a home based advocacy case worker from on or about 18 June 2017, worked from her home in Donaghadee, shared with Mr Sheridan, and not from an office away from her home.  She worked with Mr Sheridan, and with the other home based Employment Tribunal Advocate in Northern Ireland, at that time, Mr Moore completing client visits collecting and collating documents for tribunal, drafting witness statements, and attending Case Management Discussions and Pre-Hearing Review.  She also assisted, from time to time, other home based Employment Tribunal advocates in Great Britain with their work, due to issues of sickness, pressure of work and annual leave.  Mrs Sheridan’s employment was pursuant to a separate contract of employment and was not a joint employment with Mr Sheridan; albeit given the nature of their respective roles they worked closely together.  Following the termination of Mr Moore’s employment with Peninsula, Mr Sheridan was the only Employment Tribunal Advocate, who was based in Northern Ireland; and the tribunal is satisfied that both Mr and Mrs Sheridan, at all material times, worked from their home in Donaghadee in County Down in Northern Ireland, with Mrs Sheridan doing much of the preparatory “paperwork” necessary for claims/hearings in the Industrial Tribunal in Northern Ireland, with Mr Sheridan carrying out the advocacy work.  As indicated above, both Mr and Mrs Sheridan also, on occasion, separately and/or together, carried out the same roles that they were carrying out in Northern Ireland, in relation to claims/hearings brought in Employment Tribunals in Great Britain.  However, the tribunal is satisfied that in doing so, at all times, they were worked from their said home in Northern Ireland and went to Great Britain from their home to carry out any such work.  As part of their work, much of it required work away from home attending clients’ premises, attendance at tribunals.  Although they were home based their work took them away from home on a frequent and regular basis and they were not in their home at all times.

 

2.8       Mr Ian MacLean, who lives in Scotland, also became a Home Based Employment Tribunal Advocate in or about 2007 with Peninsula.  The tribunal is satisfied that he had a similar contract of employment to that of Mr Sheridan and that, until in or about August 2016, he carried out a similar role to Mr Sheridan in tribunals across the United Kingdom, although mainly in Scotland, and, at all times, like Mr Sheridan, he worked from his home.  The tribunal is also satisfied that this was similar to most, if not all, other Employment Tribunal Advocates employed by Peninsula during this period, prior to in or about August 2016.  Mr MacLean worked with Mr and Mrs Sheridan and, in particular, on occasion, they took over cases, for which he was originally responsible, including, in particular, when he was on sick leave on work related stress.  It will be necessary to refer again to the position of Mr MacLean from in or about August 2016, later in this decision. 

 

2.9       In or about 2010, Peninsula decided to set up a regional office in Northern Ireland.  It was made clear to Mr Sheridan by his line manager at that time, Ms English, that this was for advice and telesales staff and it did not affect home based advocacy staff such as himself.  There was some discussion by Ms English with Mr Sheridan at this time about a proposal by Peninsula that the office would be situated at the lower end of the Newtownards Road in Belfast.  Mr Sheridan pointed out it would be a potential flashpoint area in the Summer and, during the course of discussion, he suggested the office should be situated in the Gasworks in Belfast close to the present Offices of the Industrial Tribunals and Fair Employment Tribunal.  In the event, the said Belfast office was opened at the Citilink Business Park, close to the Grosvenor Road police station in or about Durham Street, Belfast.  Following the opening of this office at Citilink Business Park, the tribunal is satisfied Mr Sheridan told his then line managers Ms English and Mr Terry Clarke that he did not wish to work out of the Belfast office as he did not feel safe and that each of them, on a number of occasions, confirmed to him he would not be required to do so.  It was not surprising each gave him this assurance.  They did so, not because of any security concerns of Mr Sheridan, but because Peninsula, at that time, was employing him as a home based worker and there was no change contemplated, at that time, to the said location.  The tribunal is further satisfied that Mr Sheridan, during the course of these conversations, explained to them in general limited terms, his personal security concerns about the area the office was situated in, given his past service with the security services.  But it is not satisfied he set out in any detail his specific concerns at that time in relation to its closeness to the Grosvenor Road police station and how he had had to deal, during his service, with a particularly difficult task in that building, following a horrific incident relating to the murder of two soldiers.  The tribunal is further satisfied that, following the opening of this office, Mr Sheridan only visited it on a few occasions for short introductory meetings with Ms English and/or Mr Clarke before they adjourned to hotels/restaurants, where the main business of their meetings with Mr Sheridan was conducted.  In or about 2009, when Mr Sheridan was involved in a tribunal hearing brought by Mr Moore against Peninsula, Mr Sheridan, during the course of preparatory background discussions relating to the case with the second respondent, (Mr Stern-Gillet) who was present in Northern Ireland for the hearing of the case, mentioned his personal security concerns about working in certain areas in Northern Ireland, due to his past work as a member of the security forces; but again, the tribunal is satisfied he did not do so in any specific detail at that time. 

 

            At a performance review meeting held with Mr R. Cater, the then advocacy manager, and Mr Terry Clarke, a line manager of Mr Sheridan on 31 March 2016, the tribunal notes that it was recorded it Mr Cater’s notes that Mr Sheridan made it clear that he was not going to work in the Belfast office at Citilink Business Park and Mr Clarke confirmed to Mr Sheridan that Peninsula had no intention of making him do so, consistent with the previous assurances given to Mr Sheridan, as referred to above.

 

2.10    Mr Sheridan, for some time but, in particular from in or about early 2016 has increasingly suffered from stress, anxiety and depression and has required during this period to consult with his general practitioner on various occasions, who has prescribed, at various times medication, including sleeping tablets and anti-depressants.  On one earlier occasion, he attempted suicide.  The Tribunal is satisfied on occasion he sought to hide his health issues by use of alcohol.  Indeed, in early 2016, the claimant admitted to abusing alcohol and had to be prescribed appropriate treatment for same.  Dependency on alcohol is not a relevant impairment under the Disability Discrimination legislation.  The tribunal further accepts that Mr Sheridan suffered, on occasion, from flashbacks about his time in the security services during this period; but it is not persuaded that he even told his general practitioner prior to January 2016 full details of how he was suffering health wise.  In particular, the tribunal has no doubt that Mr Sheridan also hid from his employer during this period how he was suffering, including his difficulties in sleeping and concentration and restlessness and how, when necessary, he has taken holidays and sick leave in order to avoid having to let his employer know he was suffering from such mental health issues.  He did not want the stigma that he felt would be attached by his employer to such matters.  However, he continued to do his work during the week, without, at that time, any major discernible reduction in his ability to carry out his duties but often relied on alcohol at the weekends to obtain relief.  In essence, the tribunal concluded that Mr Sheridan was continuing to work during this period as best he could but from January 2016 increasingly, “covering up” and, in particular, from his employer, the true nature and extensive health issues he was suffering from as outlined above.  The tribunal has no doubt that Mrs Sheridan, at all material times, was fully aware of these health issues and, loyally and understandably, assisted him in covering up from his employer what was actually taking place.  However, it is a pity that the increasing difficulties that Mr Sheridan was facing during this period were not brought to the attention of his employer, as it has no doubt many of the issues which are the subject matter of these proceedings, might have been able to be avoided or treated differently.

 

            At the meeting with Mr Cater and Mr Clarke on 31 March 2016, following a period of sick leave by Mr Sheridan, the tribunal notes Mr Cater’s reference to Mr Sheridan having a viral infection, which it was stated was being monitored.  Mr Sheridan strongly denied, in evidence, he ever had such an infection.  However, the tribunal has concluded that Mr Sheridan, as part of his refusal to put his employer fully in the picture about his mental health issues, fearful of the stigma referred to above together with concerns for his employment, did refer to such an infection, to explain his sick leave, as “cover” for his health issues which by then were significantly increasing.  He was not prepared to give them full detail of his mental health issues and the medication which was being prescribed by his general practitioner.  Mr Sheridan properly accepted in evidence, if he did not tell his line managers at that time, they could not know that he was suffering from such mental health issues and, from their perspective given his failure to disclose the mental health issues to them, they had no reason to doubt he was able to carry out, and was in fact doing so, his work to the necessary standard required of him. 

 

            As indicated above, the tribunal has no doubt that Mr Sheridan was able to continue to work, despite his said health issues during this period, due to the assistance of Mrs Sheridan carrying out most of the relevant preparatory work, prior to any tribunal hearing, in which Mr Sheridan was to act as advocate, which previously he would have done himself, and this allowed him to give the impression to his employer, and their clients, that he was still able to do his work to the necessary standard. 

 

2.11    In or about April/May 2016, Mr Stern-Gillet, was appointed Head of Legal and Advisory Services and a director of Peninsula, following the resignation of Ms English, with immediate effect, as Director of Legal Services, for personal reasons.  As a consequence the advice and litigation sections of Peninsula were brought under a single control, where previously the said departments had been separate.

 

2.12    Indeed, following the meeting in March 2016, Mr and Mrs Sheridan had little contact from either Terry Clarke or Mr Cater or Julie English, prior to her said resignation.  Mr Stern-Gillet contacted Mr and Mrs Sheridan, prior to their going on annual leave in or about mid June 2016, asking, in general terms about their roles and workload.  The tribunal has no doubt that, following the appointment of Mr Stern-Gillet as Head of Legal and Advisory Services, he took the opportunity to consider how these services were operating for Peninsula, across the United Kingdom, and, in particular, in relation to whether employees, such as Mr and Mrs Sheridan, who were working from home, as home based workers, should continue to do so or whether, in the interests of the company, they should become office based workers rather than home based workers.

 

            In the period between 1 August 2016 and 5 August 2016, Mr Stern-Gillet arranged covert surveillance on Mr Sheridan at their home.  The Tribunal was never given a satisfactory explanation why such surveillance was carried out and, in the event, it was not necessary for the Tribunal’s determination of this matter to consider this further, save that Mr Sheridan became suspicious he was under surveillance.  Given his concerns about his personal security, this increased his anxiety and mental health issues at the time.  The report showed Mr Sheridan, alone, carrying out some household tasks in his car, such as various visits to local shops and a recycling centre in the week during the period of surveillance.  

 

            Mr Stern-Gillet arranged a meeting with Mr and Mrs Sheridan, following their return from annual leave in mid-June/July 2016, at the Belfast office at Citilink Business Park on 5 August 2016.  In an email, dated 2 August 2016, Mr Stern-Gillet referred to it as a “catch-up” meeting, having cancelled a general meeting which had been previously arranged for that day.

 

            Mrs B. Cameron, the employment advice team leader at the Belfast office, who was, in essence, the office manager within the advice department of Peninsula in Belfast, prior to the said meeting, confirmed to Mr and Mrs Sheridan the car parking/security arrangements for their attendance at the same meeting.  In the judgment of the tribunal, this confirmed that use of the office building in Belfast was not a normal/routine occurrence for either Mr and Mrs Sheridan and that, at all material times, prior to this meeting, they worked from their home and not from the Belfast office. 

 

2.13    Mr Stern-Gillet, in his witness statement, stated that in June 2016 it was agreed at board level of Peninsula that employees who worked within reasonable commuting distance of Peninsula’s regional offices would be required to work from the office.  He further stated the Directors had considered the benefits of working from within an office environment compared with the potential difficulties which colleagues might experience from an often isolated home based environment.  He further stated the purpose of the move, followed expansion of Peninsula, after acquisition of other companies, and this had led to consideration of home based workers across the company working from regional offices.  The rationale he stated, behind the decision, was there was to be a greater support network, an emphasis on team work and resource sharing from within an office location compared with the isolation and remoteness which might be associated with working from home.  Senior managers within the group were asked by the Directors to make contact with the home based employees who were centred close to the regional offices.  The tribunal accepted these were relevant considerations for an employer contemplating such a change.

 

            In light of the foregoing, the tribunal found it relevant but very concerning that the respondents, and in particular Mr Stern-Gillet, were unable to produce one shred of evidence, documentary or otherwise, in relation to the involvement and direction of the board of Peninsula or its directors in relation to what was clearly a major change of policy in relation to the employment of home based workers and, in particular,  how such change of policy was to be implemented by the senior management.  Indeed, as confirmed by Mr Stern-Gillet, in his witness statement, and shown by his actions during the course of the meeting on 5 August 2016 (see later), he did not consider his meeting was part of any consultation process or, in particular, that he was required to engage in any such process or reasonable notice of any such change or period of implementation.  The tribunal found it most surprising, given the role and nature of the work of Peninsula to give appropriate employment advice to employers, that, such a change, stated to have been agreed at board level, no proper process was devised for the change to be carried out by senior managers with affected home based employees, given the clear change of policy, to make them office based employees, whereas previously they had been home based employees.

 

2.14    On or about 3 August 2016, Mr Cater met Mr Ian MacLean, a home based Employment Tribunal Advocate in Scotland, who had similar terms of employment to Mr Sheridan and who was told he had to move to the Glasgow office.  In an email, dated 5 August 2016, he disputed the decision but was told by Mr Carter it was a “high level decision” and he had to report to the Glasgow office on 15 August 2016.  Mr MacLean raised a grievance on 12 August 2016 outlining his concerns and expressing the view that, after no discussion and no prior warnings, he considered the decision to be a breach of his contract of employment.  He made it clear to Mr Cater he was not happy with the decision and the tribunal is satisfied Mr Stern-Gillet would have been informed by Mr Cater of his unhappiness.  Indeed, as a result, Mr Stern-Gillet would have had no grounds for suggesting to Mr and Mrs Sheridan at his meeting with them on 5 August 2016 that not only had Mr MacLean already become office based he was happy with the change (see later).  Subsequently Mr MacLean’s grievance was heard by Mr Cater but not upheld.  He appealed to Mr Stern-Gillet and again the grievance was not upheld.  The tribunal was told by Mr MacLean, in evidence that he was now working “under protest”.

 

2.15    There was no agenda drawn up for the meeting on 5 August 2016, attended by Mr and Mrs Sheridan with Mr Stern-Gillet in the Belfast office.  The tribunal is satisfied that Mrs Cameron was aware, as she acknowledged in her witness statement, that before the commencement of the meeting that their meeting would involve some discussion about proposed changes which Mr Stern-Gillet intended to introduce, in relation to the work of Mr and Mrs Sheridan from their previous home based environment.  Mr and Mrs Sheridan were given no indication/warning, prior to the meeting by either Mr Stern-Gillet or Mrs Cameron, this issue was to be discussed nor were they provided with any documents, relating to such matters, which might have been expected following such a change of policy especially one that was stated to have been agreed at board level.

 

2.16    Mrs Cameron accompanied Mr Stern-Gillet to take notes.  The tribunal is satisfied that, at the start of the meeting, there was a general discussion about Peninsula’s competitors, about the tribunal system in Northern Ireland, recent case law and proceedings, and also the members of the employment judiciary.  The meeting then moved on to matters, which are more relevant to these proceedings.  Mr Stern‑Gillet stated, following the transfer of an employee from Peninsula to another company in the group, that he wanted Mrs Sheridan to complete response forms, which had previously been carried out by this employee.  Mrs Sheridan stated her willingness to do so; she indicated she had done so previously, as part of her work as a home based advocacy case worker.  At that stage, there had been no reference by Mr Stern-Gillet to any change from home based to office based.  There was considerable dispute between those at the meeting, and when giving their evidence, about what was said in relation to such matters.  The tribunal found Mrs Cameron’s notes of the meeting unsatisfactory in that, in particular, they were not only not a verbatim note of what was said but they also included matters which were not said in her presence, as part of the meeting, took place later, between Mr Sheridan and Mr Stern-Gillet.  The contents of that part of the minutes had to have been told to her, after the meeting by Mr Stern-Gillet.  Mrs Sheridan, after the meeting, scribbled in her diary, her recollection of what had taken place at the meeting and which the tribunal found a more accurate, albeit emotional, recollection of what took place in her presence and, in particular what was said by Mr Stern‑Gillet during the course of the meeting.

 

2.17    The tribunal is satisfied Mr Stern-Gillet, after the general discussion, and Mrs Sheridan’s agreement to take on the completion of the response form, suddenly, without warning, stood up leaned against the window with his arms folded and smiling and said to Mr and Mrs Sheridan he had decided all home based workers in the United Kingdom were moving into offices and Mr and Mrs Sheridan, as part of that decision, were required to move into the Belfast office in two weeks’ time (Mr and Mrs Sheridan assumed to be 10 working days).  He also stated he wanted Mr and Mrs Sheridan, as part of their duties, to take on an advice role assisting the advice staff in Belfast office with client office requests etc, on top of their own previous workload.  Both Mr and Mrs Sheridan were shocked and upset by this announcement and Mrs Sheridan became particularly alarmed as she could see Mr Sheridan was becoming particularly anxious and stressed, which heightened her own upset.  Mrs Sheridan referred to the difficulty for her of doing her work in the office due to the noise.  At this stage, apart from raising the issue of noise in the office, she did not expressly object to the move, which had taken her completely by surprise.  In any event, Mr Sheridan took the lead in the discussion which then followed.  Mr Sheridan strongly protested and said that, if he had been looking for an office based job he would never have applied for such a job in this Belfast office.  He referred to its situation but also emphasised the decision was in breach of his contract of employment, both as to the place of work and the nature of the work. 

 

            Mr Stern-Gillet responded, with a smile on his face – “you will find I can do what I like”.  He added, that if Mr Sheridan decided not to make the move, he would be sorry to lose him.  The tribunal is satisfied Mr Stern-Gillet was intending, at all times during this discussion, to make it clear to Mr and Mrs Sheridan the decision was not up for discussion; it was a case of “take or leave it”.  Mr Sheridan became more anxious and stressed as the discussion went on and he reminded Mr Stern-Gillet that Mr Stern-Gillet knew of his security issues; albeit he did not go into any detail at this point in the discussion. 

 

            During the course of discussion, when explaining the rationale about the change, Mr Stern-Gillet said it was a country-wide move and referred to changes that were already taking place in Great Britain.  He referred, in particular to Mr MacLean and how he had already moved and was in favour of it and could see the benefits, which, as set out previously, was not correct and was clearly stated to put additional pressure on Mr and Mrs Sheridan to agree to the change, without further discussion.

 

            Mr Sheridan was unaware of Mrs Cameron’s background and felt uneasy, in such circumstances, to discuss his personal security concerns about the move in her presence.  As a result, he then asked to speak with Mr Stern-Gillet face to face in private.  Mrs Sheridan did not attend this part of the meeting nor did Mrs Cameron. 

 

            In his private discussion with Mr Stern-Gillet, Mr Sheridan told him of his particular personal security concerns, which had been referred to previously, and he reminded him of his earlier general conversation in the margins of the tribunal proceedings involving the former Peninsula employee, Mr Moore, as set out previously in this decision.  Mr Sheridan, as he said in evidence, begged Mr Stern‑Gillet to reconsider his decision.  He reminded Mr Stern-Gillet he had been given assurances by senior management, as set out previously, that he would not be required to work in an office.

 

            The tribunal is satisfied Mr Stern-Gillet listened to Mr Sheridan but, in reality, had no intention of changing his mind.  He repeated to Mr Sheridan he would be sorry to see him go when Mr Sheridan again said to Mr Stern-Gillet that the change was in breach of his contract of employment.   Mr Stern-Gillet again stated “I think you will find I can do what I like”.

 

            The meeting broke up with Mr Sheridan becoming visibly distressed and upset.  As Mr Sheridan was leaving the face to face meeting with Mr Stern-Gillet, Mr Stern‑Gillet said to Mr Sheridan that Mrs Sheridan had already agreed to move.  Mr Sheridan then asked Mrs Sheridan, in Mr Stern-Gillet’s presence, whether this was correct.  She expressly denied that she had agreed to become office based.  The Tribunal is satisfied Mr Stern-Gillet had wrongly assumed that her willingness to do the response work, in the absence of express objection at the earlier part of the meeting, meant she was prepared to change to office based unlike Mr Sheridan.  It was a wrong assumption and heightened the emotion and tension at the conclusion of the meeting.  Asking Mr Stern-Gillet to put his decision in writing, Mr and Mrs Sheridan left the meeting, both very upset and stressed, and in particular in the case of Mr Sheridan, by what had happened and had been said by Mr Stern-Gillet at the meeting.

 

2.18    It has to be noted that at no time, during the course of the meeting, did Mr Sheridan raise any issue of disability and/or refer to his mental health issues he was suffering from in relation to his objection to the change to office based from home based.  His objection was centred at all times at this time on his personal security concerns about such a move from office based to home based.

 

2.19    Mr Stern-Gillet sent an email to Mrs Sheridan following the meeting on 8 August 2018.  It ignored, in essence, what had taken place in the meeting on 5 August and its unsatisfactory nature and outcome, as outlined in the previous sub-paragraph.  It referred to Mrs Sheridan’s noise objections but ignored her denial to Mr Sheridan, in Mr Stern-Gillet’s presence, that she had agreed to move to the Belfast office to carry out her role. 

 

            In any event, it was clear that, regardless of the meeting on 5 August 2018, Mr Stern-Gillet had decided there would be no further discussion and, in particular, he required Mrs Sheridan to work from the Belfast office, and not her home, as before when she was not in tribunal or visiting members’ premises; and that this was to take place from 15 August 2016, which he suggested was a reasonable notice of the change. 

 

            He also stated – “I consider this to be, for the avoidance of doubt, a reasonable management instruction”.

 

            Mr Stern-Gillet sent an email to Mr Sheridan on 8 August 2018, which was in similar terms to Mrs Sheridan, as referred to above.

 

            However, he also referred to Mr Sheridan’s unwillingness to accept the change due, principally, to Mr Sheridan’s concerns about the security of the Belfast office.  He stated, inter alia, “from my perspective, and having discussed the situation with Brooke Cameron, we have no concerns regarding the security of the office.  It is now part of the city centre due to the constant expansion of the centre.  It has a police station, a school and a train station within close proximity.  It is within a walled business park compound which has security on the gate and regular security patrols.  There have been no incidents during our time in the building.  I am confident that it would be a safe place for you to work, especially since I anticipate that, due to the amount time which I expect you to be spending in tribunal or members’ premises, you time in the office will not be full-time and will be on variable days …”

 

            He copied this email into Mr Cater but did not discuss with Mr Cater, before sending this email, the contents of the March 2016 appraisal when Mr Sheridan’s security concerns had been raised, albeit not in detail.  Indeed Mr Stern-Gillet was unaware of the document and the assurance given to Mr Sheridan about not requiring to work as an office based worker, during the course of that discussion. 

 

            The tribunal is not satisfied Mr Stern-Gillet properly understood, or indeed tried to understand, the personal security concerns of Mr Sheridan arising from his service in the security forces in Northern Ireland, about this change from home based to office based.  Mrs Cameron gave general advice on the security of the premises but would not have been in a position to advise on the particular concerns of Mr Sheridan relating to his previous service with the security forces and its consequences for how he conducted himself, as he travelled from his home, as outlined previously.  In fairness, the Tribunal accepts this was not the sort of issue Mr Stern-Gillet would normally have been required to consider, with his understandable lack of knowledge of Northern Ireland and how it has affected some members of the security forces following “the troubles”.  His response, as outlined in the email, might be considered a normal response from a manager about typical security concerns which might be raised frequently by an employee faced with such a change of place of employment; but not where there was other particular matters, unique to Mr Sheridan, as an employee of Peninsula.  These he clearly did not consider further or indeed want to further consider.  The Tribunal is satisfied, in any event, Mr Stern-Gillet was determined to proceed with these changes at all material times as he was satisfied, as he emphasised during the course of giving his evidence, that he was entitled to do so under the terms of the contract of employment of both Mr and Mrs Sheridan (see later) and, by giving such notice and investigating Mr Sheridan’s security concerns, as he saw them, he had a given a reasonable management instruction.  He could see no reason, in such circumstances, to change his decision.  In this context, it has to be remembered it was never a term of Mr Sheridan’s contract of employment he was office based because of his security concerns.

 

2.20    In the conversation at the meeting on 5 August 2016, about working in the office, it was stated by Mr Stern-Gillet that Mr and Mrs Sheridan were to start working in the office in two weeks’ time; but by the email of 8 August 2016 this had been reduced to starting on 15 August 2016, thereby reducing the period in effect to one working week.  Mr and Mrs Sheridan’s home, from where they had each worked as home based workers, was in Donaghadee.  This is approximately 20 miles and takes about an hour by car, depending on traffic.  There is a bus service but also a train service from Bangor to Belfast, which is some 10 miles from Donaghadee.  Such services would require a commute ‘down the road’ depending on the times of service, well in excess of an hour.  In the tribunal’s view, such a commute is a reasonable and normal commute for many people in Northern Ireland.

 

2.21    Following the meeting on 5 August 2016, both Mr and Mrs Sheridan were very stressed and upset and, in particular, Mr Sheridan, who was not sleeping, was tearful, and again suffering from flashbacks and night sweats as a consequence.  His general practitioner increased his medication and gave him a sick line.  He also gave a sick line to Mrs Sheridan for work related stress.

 

2.22    On or about 15 August 2016, Mrs Sheridan sent a detailed email, on behalf of herself and Mr Sheridan, in which she referred to the events of 5 August 2016, as set out previously, but also outlining, in more detail Mr Sheridan’s security issues.  She stated her general practitioner had advised she was suffering from stress and to take a period off work.

 

            She also stated, in relation to Mr Sheridan –

 

                        “…. Due to your email of 8 August and follow up August 2016 forcing us into a situation that would compromise Tom’s security it has caused him great stress so much that he had to visit his general practitioner and his general practitioner had put him on sick leave due to stress at work.  I have attached a copy of his sick leave.  We both believe you have breached our contracts of employment and in Lord Dennings words (shows that the employer intends not to bound by one or more of the essential terms of the contract” …

 

            This email was treated as a grievance by Mr Cater, the litigation manager.

 

            Mr Sheridan’s sick line stated he was “not fit for work” and referred to “stress at work”.  Mrs Sheridan’s self-certification referred to “stress at work due to stress on 5 August 2016”.

 

2.23    It is to be noted that, the email of 15 August 2016 did not refer in any detail to the symptoms of Mr Sheridan’s stress, as referred to previously, which the tribunal accepts he was suffering from after the meeting of 5 August 2016 and the email of 8 August 2016 from Mr Stern-Gillet.  Mr Sheridan’s sick line was for a period of two weeks.  The email again emphasised Mr Sheridan’s personal security concerns in relation to the change to office based employee. 

 

2.24    On or about 15 August 2016, Peninsula arranged an occupational assessment with Health Assured Limited, a company within the Peninsula group.  It was a short 5/10 minute telephone consultation and a copy of the report of the assessment was sent to Mr Cater, following the consultation.

 

            In the note of the assessment it stated, inter alia:-

 

                        “Tom (and his wife Lynn) have been asked to work from our Belfast office having previously been field based.  Tom (and Lynn) have been signed off with stress related issues and have lodged an ongoing grievance.

 

                        Both underwent telephone OH active care telephone conversation. 

 

                        Tom has requested a GP assessment as he believes he may have a disability – PTSD.”

 

            In her letter, Ms Nicholson, occupational health adviser, following the said assessment, which took place on 26 August 2017 wrote to Mr Cater.  That should have been in a covering letter, Ms Nicholson.

 

            Under current health status the letter stated:-

 

                        “As you are aware Mr Sheridan currently requires sick absence and he perceives that he has been affected by work related stress.  He is due to see his GP to receive the appropriate support to restore symptom control ….

 

                        …. I would like to emphasise that stress is not a medical diagnosis but his natural response to adverse circumstances.  However, if it is prolonged it can lead to psychological, emotional and behavioural symptoms which may require specific medical and psychological interventions.  The key in managing stress related symptoms is to address underlying factors leading to stress. 

 

                        In this case Mr Sheridan is affected by a low mood, emotional instability, fatigue and an altered sleep pattern that is having an adverse impact.

 

                        Early intervention is the key in facilitating recovery and sustaining a return to work.  The recovery is likely to take longer if the issues that he perceives he has or unaddressed and unresolved. 

 

                        In order to plan, support and sustain a return to work I recommend that a stress risk assessment is completed with a mutual/impartial manager as this can identify adjustments that can be made in the work place/environment that will reduce the potential of further sickness absences occurring.

 

                        ….

 

                        A management meeting is advised to discuss this in more detail.  If Mr Sheridan remains absent from work following a four week period, you may wish to consider further referral to occupational health.”

 

2.25    Following this report, Mr Cater filled out a management referral form. 

 

            In that he stated, inter alia:-

 

                        “The company has over the years opened regional offices.  It has been decided to ask field based employees who live within commuting distances of the regional offices to work from the office rather than home.  The reason for the decision was the considerable resources have been diverted to acquire and equip the offices and the Belfast office, where (Tom and his wife Lynn) have been asked to work from is currently undergoing an extensive refurbishment and modernisation.

 

                        It was felt there would be benefits both to employees and the company of consultants working with advice and sales colleagues, with whom historically there had been an overlap.  Employees would also benefit from having access to commercial office equipment rather than home office equipment with which they are supplied in the field.

 

                        Office work is combined with visits to clients and the tribunal.  Consultants are able to prioritise and set their own diaries within their ongoing workload.  Whilst there will be some daily commuting to and from the office the company has considered the pros and cons for employees and concluded that the benefits to both company and employees outweighed any negative side.  Tom and Lynn were asked to work from the office on 5 August.  The start date was meant to have been Monday 15 August.  However Tom and Lynn went on sick leave on Monday 12 August with stress related illnesses.  Subsequently they have lodged a grievance much of which relates to the move.

 

                        Tom had an OH Active Care telephone conversation and as a result of something Tom said was mentioned during this has requested a GP assessment as he believes he may have a disability – PTSD.

 

                        The initial grievance has been held and the grievance investigation is underway.”

 

           

            It is to be noted that, in the said referral, there was no reference to the security issues raised by Mr Sheridan in relation to the move.  It referred, as part of the referral, in a tick box exercise, to possible issue of adjustments.

 

2.26    Following the above referral by Mr Cater, the claimant was assessed for Peninsula in Belfast by Professor Ken Addley, consultant in occupational medicine, on 3 October 2016, on behalf of Health Assured Limited.

 

            In the history, Professor Addley recorded under background:-

 

                        “…. He has been absent from work from 12 August 2016 with the GP certifying the absence been due to stress at work ….

 

                        Mr Sheridan’s employment contract is based through an office in Manchester and he tells me that he has been employed to work from home for the past 11 years.  He further indicates that he was called to a meeting on 5 August 2016 when he was informed that he would from 15 August be working primarily from the office rather than home.  He indicates that he has a grievance case with the company and is awaiting the outcome.”

 

            Under medical history, Professor Addley recorded:-

 

                        “Mr Sheridan appears to have a history of anxiety and depression going back some years ….”

 

            Professor Addley then refers to Mr Sheridan’s service with the security forces and of Mr Sheridan’s involvement, in relation to, as part of the investigation into the murder of two soldiers, a particularly difficult task at the police station next to the office and states “he also experiences symptoms which could be consistent with post traumatic stress syndrome.  He has attended his general practitioner on a regular basis (every two weeks).  He had been on Mirtazapine for quite some time and the dose has been increased recently from 15mg to 30mg.  He indicates that he has had three bouts of sickness absence, the most previous one been at the beginning of this year due to stress.  He has not had any counselling and tells me that he has approached Combat Stress to seek their advice”.

 

            In his opinion and recommendations, Professor Addley stated, inter alia:-

 

                        “Mr Sheridan appears to have dealt with this underlying vulnerable position reasonably well.  He has also, as far as I know, had no particular performance issues.  Mediation is the only way forward in regard to promoting a return to work.

 

                        ….

 

                        (1)       Mr Sheridan is not currently fit for work.

 

                        (2)       In the absence of any mediation process which can broker a return to work plan, his absence will continue for the foreseeable future.

 

                        (3)       There is an underlying medical condition that of reactive anxiety and depression with features of post traumatic stress syndrome.  The condition causes the employee to feel distressed as outlined in the above report. 

 

                        (4)       He is receiving medication …. should he be able to return to work, I can see no reason why he would not be able to provide regular and effective service in the future.

 

                        (5)       As indicated above, the Disability Discrimination Act 1995/2006 is likely to cover the condition.  I have given advice on the reasonable adjustment required here which is a mediation process to explore how best to take the matter forward.”

 

2.27    There was a grievance meeting with Mr Cater attended by Mr and Mrs Sheridan on 12 September 2016.  There was some disagreement between Mr Cater and Mr and Mrs Sheridan, in evidence, as to what was discussed and the depth in which the grievance issues were discussed at this meeting.  The tribunal is satisfied, however, that Mr and Mrs Sheridan raised all the issues set out in the grievance letter referred to paragraph 2.22 above.  The tribunal is further satisfied it was agreed at the meeting a meeting would be recorded by Mr Cater and Mr and Mrs Sheridan would be provided with copy of the handwritten minutes, copy of the recording and a transcript.  Unfortunately this was not done at the time and then, as seen later, there was only the provision of largely illegible handwritten notes by Mr Cater.  If the above agreement had been kept to, some of the issues, the subject matter of these proceedings, might have been handled differently by the parties and in a more satisfactory manner. 

 

2.28    Following the meeting, Mr Cater drew up a list of 30 issues by heading, the subject matter of the grievance.  This included issues relating to the change from home base to office base, the move being a breach of contract, issues relating to Mr Sheridan’s security, whether the move was a reasonable management instruction, together with medical issues relating to Mr Sheridan needing to be assessed.  The tribunal is satisfied Mr Sheridan, in the course of the meeting, asked Mr Cater whether he had the authority to change the decision relating to the move to office based from home based.  Mr Sheridan was fully aware the decision had been made by Mr Stern-Gillet, who had that time was Mr Cater’s senior manager, being director of legal and advice services.  Both he and Mrs Sheridan were concerned whether this decision could be in fact overturned by Mr Cater, as part of the grievance process, regardless of what they said.  Mr Cater stated he had the necessary authority and the tribunal has no doubt Mr Sheridan stated in reply to Mr Cater “we will hold you to that”.  He did so, in the view of the Tribunal, not as a threat but rather as a symptom of his understandable concern in the circumstances relating to this change of work place Peninsula were seeking to impose.  In this context, the tribunal accepts that Mr MacLean, as part of his dispute about the move, had asked Mr Cater could the decision be revoked for him and was firmly told by Mr Carter it could not.

 

2.29    The tribunal has no doubt that, in the period following the meeting on 5 August 2016 and the subsequent termination of his employment (see later) Mr Sheridan became even more distressed, upset and depressed.  He continued not to sleep properly, to suffer from flashbacks and remained unfit for work and rarely ventured out of his home in Donaghadee and was no longer hiding his mental health issues, as he had done previously. 

 

2.30    Mr Cater concluded an investigation meeting with Mr Stern-Gillet on 21 September 2016.  The tribunal noted that the record of that meeting was not produced to Mr and Mrs Sheridan until discovery during the course of these proceedings.  But the tribunal is satisfied that, in the course of this meeting, Mr Stern‑Gillet made it clear he was not changing his decision to make Mr and Mrs Sheridan office based from their previous position as home based and, indeed, as he made clear to the tribunal, in evidence, he believed he was entitled to do so under the wording of the terms of their contract of employment and that, in such circumstances, they were not entitled to object.  (See later.)  He specifically denied saying during the course of the meeting of 5 August 2016 “I think you will find I can do what I like” or words to that effect.  As indicated previously, the tribunal is satisfied that he did say such words and it was also consistent with his views as the terms of the contract and the ability of Peninsula to make such a change.  In the minutes of the meeting on 21 September 2016, Mr Cater records Mr Stern-Gillet as saying such an expression was not his style of communication and that he tries to persuade and not order, although sometimes he has to make a decision.

 

            The tribunal, having observed closely Mr Stern-Gillet give his evidence to the tribunal, concluded, regretfully, this was in fact his style of communication, at least in relation to this matter, and that he did not try to persuade but rather ordered the carrying out of his decision without any warning or consultation and that the meeting with Mr and Mrs Sheridan on 5 August 2016, as he recognised in his witness statement, was not part of the consultation exercise but rather was a notification of a decision already made.

 

            In relation to the security concerns of Mr Sheridan, it is clear from the minute, in the judgment of the tribunal, that Mr Stern-Gillet had no appreciation of the personal security concerns of Mr Sheridan as expressed by him arising out of his work with the security forces and that Mr Stern-Gillet was only interested in considering “normal day to day” security concerns, which would be relevant to the use of any office wherever situated.  Mr Cater did not show this minute to Mr and Mrs Sheridan nor did he ask for their comments, which the tribunal would have expected as part of any such grievance process taking into account, in particular, that Mr Stern-Gillet was the decision maker.  As an office based worker, both Mr and Mrs Sheridan would not be there at all times, as they would continue to have to visit client’s premises, attend tribunals, as they had done as home based workers.

 

2.31    Mr and Mrs Sheridan were expecting to see a record, as referred to above, about their meeting with Mr Cater on 12 September 2016.  They therefore took no further immediate action on the issues identified by Mr Cater in his email of 15 September 2016 as they were awaiting the record so that they could respond appropriately in the circumstances. 

 

2.32    In an email dated 25 September 2016, Mr Cater wrote to Mr and Mrs Sheridan stating:-

 

                        “Further to my recent email which I set out what I believed to be the grievance issues identified I have not heard back from you so I have presumed that the issues were correctly identified as the ones you wanted me to consider and I am proceeding on this basis.  However, if there are additional matters, please do not hesitate to advise me.

 

                        I am writing to provide with you with an update on the progress of my investigation.  Due to the number of matters raised and the need to discuss these with the relevant people you have identified I am taking longer than anticipate to conclude these interviews, however, I hoped to do so within the coming week. 

 

                        I am also considering the issue that Tom raised regarding disability and whether this may have an effect on my deliberations.  I have referred the matter to Health Assured and understand they are in the process of organising an OH GP referral.  I would be grateful for your observations on this Tom, so that I can take these into account when deciding if it is necessary for me to await the outcome of this assessment before concluding my decision in respect of your grievance ….”

 

            The tribunal accepts that Mr Cater, in addition to Mr Stern-Gillet, did carry out interviews with other employees of Peninsula, as indicated in his email, as part of other grievances raised by Mr and Mrs Sheridan.  Having regard to the issues which ultimately required to be determined by this tribunal, these other matters are no longer relevant and therefore do not require to be referred to further in this decision.

 

2.33    In an email, dated 26 September 2016 from Mrs Sheridan to Mr Cater, she referred to waiting for a receipt of the promised draft minutes but also pointed out the further stress and anxiety suffered by Mr Sheridan by the OH assessment; but, significantly, in the tribunal’s judgment, she informed Mr Cater of the appointment that had been arranged with Professor Addley on 3 October 2016.

 

2.34    In an email, dated 18 October 2016, Mr Cater furnished to Mr and Mrs Sheridan his handwritten notes of the meeting, which were largely illegible and were not full minutes of the meeting, whether by transcript or otherwise, as previously agreed and, significantly, for the purposes of these proceedings, did not provide to Mr and Mrs Sheridan record of his investigation meeting, as referred to previously, with Mr Stern-Gillet.  In the email, Mr Cater indicated he was in the process of completing his conclusions on the 30 points already identified, and which would be received within 24 hours but asked if there was any else they wanted him to look at.  It has to be noted that this email was sent, subsequent to the receipt by Peninsula of Professor Addley’s report, which as seen later was received by Mr Cater on 18 October 2016. 

 

2.35    In an email, dated 19 October 2016 to Mr and Mrs Sheridan, Mr Cater sent to them his interim grievance report, stating it was interim in case there were other issues they wanted to raise.  In the email he advised them of the right to appeal to be heard by someone independent of himself. 

 

            In the email, he also stated:-

 

                        “I would add that my understanding of one of Tom’s main issues with moving to the office was one of security and not connected with symptoms of PTSD.  This is the basis upon which I had dealt with this particular aspect of the grievance.  I received yesterday a copy of the medical report relating to Tom and note that the recommendation is that there be mediation.  This is something the company is willing to undertake in an effort to resolve issues and if you agree with can make the necessary arrangements.”

 

2.36    Mr Cater’s interim grievance, which in essence, rejected the grievance of both Mr and Mrs Sheridan stated in relation to the decision to move to office based from home based, inter alia:-

 

                        “Bertrand intended the meeting to be part of a consultation process.  The matter had been determined by the board, in that employees who worked within reasonable commuting distance of the regional office would be required to work from the office and the matter had to be broached at some stage.  It was not a closed request as it may be some issues unknown to the company which would lead to reconsideration of the decision eg caring needs which may result in partial or complete revision of the decision. The ten day period before the requirement was implemented was to allow alternative arrangements be made by those affected or to bring up any reasons why the move should not take place.  This process confirms this.  I do not uphold this part of the process.”

 

            Elsewhere, he referred to his conclusion that the request to work from the office had not been referred to specifically in the invitation to the meeting was not significant. 

 

            Given the findings of fact of the tribunal, as referred to previously about what had taken place at the meeting of 5 August 2016 and indeed Mr Stern-Gillet’s own witness statement about such matters, the tribunal found these conclusions by Mr Cater in relation to the issue of consultation somewhat difficult to understand and accept in the circumstances.  In any event, he made it clear, in his report, he was not upholding, as part of the grievance, any amendment to the decision requiring Mr and Mrs Sheridan to move to office based from home based.  Prior to this, Mr and Mrs Sheridan had never been informed about any exceptions and in particular, for example care needs.  Indeed, this was never referred to by Mr Stern‑Gillet at the time of the meeting on 5 August 2016, in his subsequent email of 8 August 2016 or, indeed, in his response to the grievance at the investigation meeting with Mr Cater.  Further, there was no reference to this exception in Mr Stern-Gillet’s witness statement to the tribunal.  There was no evidence such an exception was ever adopted for any employee who was previously home based.  Indeed, in the circumstances, in light of the foregoing, the tribunal does not consider that this was a genuine exception which Mr Stern-Gillet was ever prepared to properly consider or take into account at any time relevant to these proceedings.

 

            In his interim report, Mr Cater rejected Mrs Sheridan’s objection to the move in relation to office noise. 

 

2.37    As part of the grievance, Mr Sheridan indicated that Mr Clarke and Ms English were aware of his security concerns, arising from his security force service and this had led to the assurance given to him in March 2016 that he would not have to move to in Belfast.  The tribunal found it significant that neither were interviewed by Mr Cater.  Ms English may have been unable to be contacted but the tribunal could find no good reason why Mr Clarke, albeit he had recently retired in or about August 2016, could not have been contacted and clarification sought as to the extent of his knowledge, as suggested by Mr Sheridan, of Mr Sheridan’s security concerns about working in an office rather than at home.  However, as stated previously, the tribunal does not accept the assurance was given because of the security concerns raised by Mr Sheridan.

 

2.38    In his interim report, Mr Cater confirmed that Mr Sheridan had queried whether he had the authority to overturn Mr Stern-Gillet’s decision on the move to office based employment.  He confirmed he had spoken to Mr Stern-Gillet and believed he had the authority to overturn the decision to which suggestion Mr Stern-Gillet had agreed.  In the event, given his said conclusion, this was never required to be tested. 

 

2.39    Under the heading – “outstanding OH report on whether Tom has a disability”, Mr Cater, in his interim report stated:-

 

                        “At Tom’s request, I have referred him to an OHGOP for an assessment on whether he has a disability (PTSD) and I am currently awaiting this report.  My conclusions are made without the benefit of having seen the report but once received I will consider it carefully and if there is any confusion or recommendation that impacts on any of my conclusions they will be considered in light of these.”

 

            This interim report was clearly written before he had received Professor Addley’s report, which he received on 18 October 2016.  Despite this, he still proceeded to send the interim report and the email of 19 October 2016 with its conclusions.  It is correct that in the covering letter he agreed to mediation, as recommended by Professor Addley – but yet the tribunal found it difficult to accept why such a recommendation and the findings set out in Professor Addley’s report did not cause, as a minimum, Mr Cater to further consider his conclusions in relation to the grievance, and in particular the decision of Mr Stern-Gillet that Mr Sheridan was to become office based, especially where he had acknowledged, in his interim report, there could be an exception to the decision eg caring responsibilities.

 

            As indicated previously, in the absence of any documentation relating to the board decision relating to the decision to change the policy so that home based employees became office based employees and how any such policy should be implemented, the tribunal would have expected, if this exception was in fact genuine, would have resulted in a halt to the grievance process and further consideration about the decision Mr Stern-Gillet in relation to Mr Sheridan,  in light of Professor Addley’s report and his recommendations.

 

2.40    In an email, dated 19 October 2016 Mrs Sheridan gave notice of her immediate resignation to Mr Stern-Gillet, stating, inter alia:-

 

                        “I believe I have been constructively dismissed as I believe your actions are a fundamental breach of my contract of employment, which has led to a fundamental breach of trust and confidence due to the following reasons

 

                        (a)       you made a change in employment duties which would lead to an excessive workload without consultation;

 

                        (b)       without consultation you changed my location, work and with no mobility clause in my contract;

 

                        (c)        when I raised my grievance some weeks ago I had anticipated they would have been taken seriously and dealt with in an efficient manner, I believe you have failed to deal with my grievances in a proper manner and in line with ACAS/LRA Code of Practice on Disciplinary and Grievance Procedures and our company Handbook.  [Check sent to Stern-Gillet not Cater.]

 

            Further, in an email dated 19 October 2016, to Mr Stern-Gillet, Mr Sheridan stated, inter alia, when giving notice of his immediate resignation:-

 

                        “I believe I have been constructively unfairly dismissed as you have created a fundamental breach of my terms and conditions of employment due to the following reasons

 

                        (a)       without consultation you have changed my location of work with no mobility clause in my contract;

 

                        (b)       you told me other home based consultants were already working out of Glasgow and Hinckley offices when this was untrue;

 

                        (c)        without consultation you increased my workload;

 

                        (d)       whilst I raised a number of grievances on 12 August 2016 which I had anticipated they would be taken seriously and dealt with in an efficient manner as yet this has not happened.  I believe I have been ignored over the past two years when I have been out with stress and anxiety and made the company aware I was on medication no one assisted me in any way or offered help or reasonable adjustments thus I believe I have suffered direct and indirect disability discrimination….”

 

2.41    Both Mr and Mrs Sheridan considered that the whole grievance process was a sham and that the decision to move them from home based to office based would not be changed and, in the circumstances they decided not to appeal the grievance outcome and resigned, as stated above.

 

2.42    Dr Kelly, consultant psychiatrist provided two reports, on behalf of the claimants, in relation to Mr Sheridan on 30 March 2017 and on 10 August 2017.  Dr Loughrey, consultant psychiatrist, provided, on behalf of the respondents, a report on Mr Sheridan, dated 19 July 2017.  Both Dr Kelly and Dr Loughrey gave evidence to the tribunal.  It has to be noted, all the said reports were prepared for the purposes of these proceedings, but, in particular, after the termination of Mr Sheridan’s employment.  As a result, these reports have an inevitable element of hindsight in relation to the relevant period and are based largely on the history given by Mr Sheridan to both doctors; both of whom had access to all relevant GP notes and records and Professor Addley’s report, as referred to previously. 

 

2.43    In his first report, Dr Kelly concluded, inter alia:-

 

                        “My clinical assessment is that Mr Sheridan is suffering from a moderate to severe depressive disorder.  In association with this he has developed a permanent increase in post traumatic stress disorder symptoms that had been present to a milder level for some years.  It is likely he has been coping less well but adequately with the support of his wife, for the last five years, but relying on alcohol some time ago.  The changes forced upon him through his work appear to have been the final straw which have culminated in him developing a severe mental illness, in association with other events noted above.”

 

            In a report, dated 22 June 2017, which provided by the Rehabilitation and Retraining Trust, by a psychologist to the claimant’s GP, and which was admitted in evidence without form of proof at this tribunal, it was stated Mr Sheridan presented with longstanding symptoms with PTSD and depression severe in nature, which had got far worse over the last 18 months.

 

            Dr Loughrey, in his report, diagnosed a series of adjustment disorders with some features of chronic PTSD. 

 

            He stated, in particular:-

 

                        “The diagnosis in this case is of a series of adjustment disorders, first a relatively prolonged adjustment disorder in the few years before 2016, and continuing up until that time, then a significant adjustment disorder with features of depression, anger and anxiety after the meeting … in August 2016.  I would view this man also having certain adjustment disorders symptoms in respect of the stress of the legal case, including the knowledge that he has been under surveillance.  I do not think this man has met the criteria for a depressive disorder, although this is certainly arguable … on balance an adjustment disorder is a more appropriate diagnosis than of a depressive disorder ….   I do not find this man meets the criteria for eligibility under the Disability Discrimination Act, even when the efficacy of his treatment such as Mirtazapine and Diazepam is taken into account …. It seems to me inconceivable that he met the criteria for impairment of concentration even allowing the treatment effect in view of what I understand to be his relatively high levels of productivity up until August 2016 …”

 

            In his addendum report, following sight of Dr Loughrey’s report, Dr Kelly confirmed his earlier conclusion of a depressive disorder and that he considered the criterion in the DDA, especially in relation to impairment of concentration and memory, had been established.

 

            In a report, dated 22 August 2017, Dr Kirk, Mr Sheridan’s general practitioner stated, inter alia that Mr Sheridan’s main symptoms, in the time from August 2016 to the time of his report, were over-arching symptoms of anxiety and depression.  He referred to a lack of energy, concentration and inability to focus on simple day to day tasks.  He also noted (that currently he has deteriorated to the extent that he struggles to look after his personal affairs, does not leave the house often and is tearful and upset on a daily basis.  He had short episodes of acute stress leading to time off work in the past but never any prolonged periods of inability to work prior to this – on this case he has been clinically unable to work since August 2016.”

 

2.44    Both Dr Kelly and Dr Loughrey were closely and properly cross-examined, as appropriate, by the representatives of the parties about the contents of their respective reports.  Dr Kelly accepted Mr Sheridan did not have the symptomology of PTSD but, if the depression lifted, this might become more active and show the full symptoms.  He also confirmed that, in his view, Mr Sheridan fell within the criteria relating to impairment under the DDA.  He also acknowledged that, like Dr Loughrey, he agreed Mr Sheridan’s symptoms had, in essence, been downhill since the meeting in August 2016.  Dr Loughrey confirmed that he accepted there were chronic features of PTSD but he was not prepared to make such a diagnosis.  However he also recommended, as part of any reasonable adjustments to take account of these features.  However he disputed these were a major feature of his condition as in, his view, the major concentration was a series of adjustment disorders.  Although Dr Loughrey confirmed his diagnosis, as set out in his report of a series of adjustment orders, he accepted in evidence, the diagnosis of depressive disorder, as found by Dr Kelly, was certainly an arguable diagnosis.

 

            In essence, both Dr Kelly and Dr Loughrey were not prepared to confirm a diagnosis of PTSD, albeit both accepted there were features of PTSD.  The major difference between them was between a series of adjustment disorders, as found by Dr Loughrey and depressive disorder (moderate to severe), as found by Dr Kelly.  However, both acknowledged that whatever “label” was put on Mr Sheridan’s symptoms, both were symptoms of a recognised mental impairment.

 

3.         Relevant Law

 

            Disability discrimination

 

3.1       The Disability Discrimination Act 1995, as amended (‘the 1995 Order’), provides:-

 

            (i)         Section 1 of the 1995 Act:-

 

                        “(1)      Subject to the provisions of Schedule 1, a person has a disability for the purpose of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.

 

                        (2)       In this Act ‘disabled person’ means a person who has a disability.

 

                        (3)       Guidance

 

                                    A1       The Secretary of State may issue guidance about matters to be taken into account in determining whether a person is a disabled person.

 

                                    (1)       Without prejudice to the generality of sub-section A(1) the Secretary of State may, in particular, issue guidance about the matters to be taken into account in determining –

 

                                                (a)       whether an impairment has a substantial adverse effect on a person’s ability to carry out normal day-to-day activities; or

 

                                                (b)       whether such an impairment has a long-term effect.”

 

            (ii)        Section 3A of the 1995 Act:-

 

                        “(1)      For the purposes of this Part a person discriminates against a disabled person if –

 

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

 

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

 

                        (2)       For the purpose of this Part a person also 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.

 

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

 

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

 

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

 

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

 

            (iii)       Section 4 of the 1995 Act:-

 

                        “ ...

 

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

 

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

 

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

 

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

 

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

 

                        ... .”

 

            (iv)       Section 4A of the 1995 Act:-

 

                        “(1)      Where –

 

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

 

                                    (b)       any physical feature or 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 provision, criterion or practice, or feature, having that effect.

 

                        (2)       In sub-section (1) ‘the disabled person concerned’ means –

 

                                    ...

 

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

 

                                                ...

 

                                                (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 –

 

                                    ...

 

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

 

            (v)        Section 18B of the 1995 Act:-

 

“(1)      In determining whether it is reasonable for a person to take a particular step in order to comply with the duty to make reasonable adjustments, regard should be had, and in particular, to –

 

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

 

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

 

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

 

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

 

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

 

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

 

                                    (g)       ...

 

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

 

                                    (a)       making adjustments to premises;

 

                                    (b)       allocating some of the disabled person’s duties to another person;

 

                                    (c)        transferring him to fill an existing vacancy;

 

                                    (d)       ordering his hours of working or training;

 

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

 

                                    (f)         allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;

 

                                    (g)       giving, arranging for, training or mentoring (whether for the disabled person or any other person);

 

                                    (h)       acquiring or modifying equipment;

 

                                    (i)         modifying instructions or reference manuals;

 

                                    (j)         modifying procedures for testing or assessment;

 

                                    (k)        providing a reader or interpreter;

 

                                    (l)         providing supervision or other support.”

 

 

            (vi)       Schedule 1 of the 1995 Act:-

 

                        “2(1)    The effect of an impairment is a long-term effect if –

 

                                    (a)       it has lasted at least 12 months;

 

                                    (b)       the period for which it lasts is likely to be at least 12 months; or

 

                                    (c)        it is likely to last for the rest of the life of the person affected.

 

2          Where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

 

...

 

4(1)     An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following –

 

                                    (a)       mobility;

 

                                    (b)       manual dexterity;

 

                                    (c)        physical co-ordination;

 

                                    (d)       continence;

 

                                    (e)       ability to lift, carry or otherwise move everyday objects;

 

                                    (f)         speech, hearing or eyesight;

 

                                    (g)       memory or ability to concentrate, learn to understand;

 

                                    (h)       perception of the risk of physical danger;

 

                                    (i)         taking part in normal social interaction; or

 

                                    (j)         forming social relationships.

 

                                    ((i) and (j) – pursuant to the Autism Act (Northern Ireland) 2011)

 

6(1)     An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal                     day-to-day activities, but for the fact the measures have been taken to treat or correct it, is to be treated as having that effect.

 

 (2)      In sub-paragraph (1) ‘measures’ include, in particular, medical treatment ... .”

 

(In SCA Packaging Ltd v Boyle [2009] IRLR 746 the House of Lords held the word likely in Paragraph 6(i) is used in the sense of ‘could well happen’, rather than whether it is more probable than not.  It further held that where it applies, the individual’s actual situation with the benefit of the course of treatment must be ignored and she must be considered as if she was not having the treatment and the impairment was completely unchecked.)

 

            (vii)      Section 17A of the 1995 Act (Burden of proof):-

 

“1(C)   Where, in the hearing of a complaint under sub-section (1), the complainant proves facts on which the Tribunal could, apart from this sub-section, conclude in the absence of an adequate explanation that the respondent is acting in a way which is unlawful under this Part, the Tribunal shall uphold the complaint unless the respondent proves that he did not so act.”

 

            (viii)     Schedule 3 Part I:-

 

                                    “3(1)    An industrial tribunal shall not consider a complaint under Section 17A … unless it is presented before the end of the period of three months beginning when the act complained of was done.

 

…

 

  (3)     For the purposes of sub-paragraph (1) –

 

                                    (a)       where an unlawful act … is attributable to a term in a contract, that act is to be treated as extending throughout the duration of the contract;

 

                                    (b)       any act extending over a period should be treated as done at the end of that period; and

 

                                    (c)        a deliberate omission shall be treated as done when the person in question decided upon it.

 

(4)     In the absence of evidence establishing the contrary, a person shall be taken for the purpose of this paragraph to decide upon an omission –

 

                                    (a)       when he does an act inconsistent with doing the omitted act; or

 

                                    (b)       if he has done no such inconsistent act, when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.

 

(viii)     The Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996:

 

                        3(1)     Where … a tribunal makes an award under the relevant legislation:-

 

                                    (a)       it may, subject to and in accordance with these Regulations, include interest on any sums so awarded; and

 

                                    (b)       it shall consider whether to do so, without the need for an application by a party in the proceedings.

 

                                    …

 

                        4(1)     Interest shall:-

 

(a)       subject to Paragraph (2) be applied at the same rate as in force, during the period for which it is to be calculated, in relation to decrees in the County Court;

 

(b)       be calculated as simple interest which accrues from day to day.

 

                                    …

 

5(1)     In this Regulation and Regulations 6 and 7 in relation to any award under the relevant legislation –

 

‘day of calculation’ means the day on which the amount of interest included on the sums so awarded is calculated by the tribunal;

 

‘midpoint date’ means the date halfway through the period mentioned in Paragraph (2) or, where the number of days in that period is even, the first day of the second half of that period.

 

(2)      The period referred to in Paragraph (1) is the period beginning on the date of the contravention or, as the case may be, the act of discrimination to which the award in question relates and ending on the day of calculation (both dates inclusive).

 

                        7(1)     Subject to Paragraphs (2) and (3):-

 

                                    (a)       In the case of any sum awarded under the relevant legislation for injury to feelings, any interest shall be for the period beginning on the date of the contravention or, as the case may be, the act of discrimination to which the award relates and ending on the day of calculation (both dates inclusive).

 

                                    (b)       In the case of all other sums for compensation … and all areas of remuneration awarded under the relevant legislation, interest shall be for the period beginning on the midpoint date and ending on the day of calculation (both dates inclusive)

 

                                    …

 

(3)      Where a tribunal is of the opinion that, in relation to any award under the relevant legislation there are circumstances whether relating to the case as a whole or to a particular sum in an award which have the effect that a serious injustice would be caused if interest were to be awarded in respect of the period or periods in Paragraph (1) … it may:-

 

                                    (a)       calculate interest, or as the case may be, interest on the particular sum for such different period; or

 

                                    (b)       calculate interest for such different periods in respect of various sums in the award,

 

as it considers appropriate in the circumstances, having regard to the provisions of these Regulations.”

 

 

3.2       In relation to the burden of proof provisions set out in the 1976 Order, the 1998 Order and the 1995 Act, referred to previously, the English Court of Appeal in the case of Igen v Wong [2005] IRLR 258, considered similar provisions, relating to sex discrimination, applicable under the legislation applying in Great Britain and, it approved, with minor amendment, the guidelines set out in the earlier decision of Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332.  In a number of decisions, the Northern Ireland Court of Appeal has approved the decision of Igen v Wong [2005] IRLR 258 and the said two-stage process to be used in relation to the burden of proof (see further Brigid McDonagh & Others v  Samuel Thom t/a The Royal Hotel Dungannon [2007] NICA 1 and other decisions referred to below.)  The decision in Igen v Wong [2005] IRLR 258 has been the subject of a number of further decisions in Great Britain, including Madarassy v Nomura International PLc [2007] IRLR 246, a decision of the Court of Appeal in England and Wales, and Laing v Manchester City Council [2006] IRLR 748, both of which decisions were expressly approved by the Northern Ireland Court of Appeal in the case of Arthur v Northern Ireland Housing Executive & Another [2007] NICA 25.  (See further the recent Supreme Court decision in the case of Hewage v Grampian Health Board [2012] UKSC 37, in which the Supreme Court approved the guidance in Igen and followed in subsequent case law, such as Madarassy [see below].), and where it did not consider any further guidance was necessary.  It also emphasised it was not necessary to make too much of the role of the burden of proof provisions; they required careful attention where there was room for debate as to the facts necessary to establish discrimination but they had nothing to offer where the Tribunal was in a position to make positive findings on the evidence one way or the other. 

 

In Madarassy v Nomura International PLC [2007] IRLR 246 the Court of Appeal held, inter alia, that:-

 

“The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment.  Those bare facts only indicate a possibility of discrimination.  They are not, without more [Tribunal’s emphasis], sufficient material from which a Tribunal could conclude that on the balance of probabilities the respondent had committed an unlawful act of discrimination – could conclude in Section 63A(2) must mean that ‘a reasonable Tribunal could properly conclude from all the evidence before it.  This would include evidence adduced by the claimant in support of the allegation of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting the complaint.  Subject to the statutory absence of an adequate explanation at this stage the Tribunal needs to consider all the evidence relevant to the discrimination complaint, such as evidence to whether the act complained of occurred at all, evidence as to the actual comparators relied upon by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the claimant were of like with like as required by Section 5(3) and available evidence for the reasons for the differential treatment.  The correct legal position was made plain by the guidance in Igen v Wong.  Although Section 63A(2) involves a two-stage analysis of the evidence, it does not expressly or impliedly prevent the Tribunal at the first stage, from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing or rebutting the claimant’s evidence of discrimination … .”

 

            In Igen the Court of Appeal cautioned Tribunals, at Paragraph 51 of the judgment, ‘against too readily inferring unlawful discrimination on a prohibited ground merely from unreasonable conduct where there is no evidence of other discriminatory behaviour on such ground’. 

 

            Even if the Tribunal considers that the conduct of the employer requires some explanation before the burden of proof can shift there must be something to suggest that the treatment was less favourable and by reason of the protected characteristic (eg disability) (see B and C v A [2010] IRLR 400 and Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8 later in this decision).

 

3.3       In relation to what is to be included by the expression ‘something more’ – guidance is to be found in the judgment of Elias J in The Law Society v Bahl [2003] IRLR 640, which judgment was approved by the Court of Appeal (see [2004] IRLR 799). 

 

In Paragraph 94 of his judgment, Elias J emphasised that unreasonable treatment is not of itself a reason for drawing an inference of unlawful discrimination when he stated:-

 

                        “94.     It is however a wholly unacceptable leap to conclude that whenever the victim of such conduct is black or a woman that it is legitimate to infer that our unreasonable treatment was because the person was black or a woman.  All unlawful discriminatory treatment is unreasonable, but not all unreasonable discriminatory treatment is discriminatory, and it is not shown to be so merely because the victim is either a woman or of a minority race or colour.  In order to establish unlawful discrimination it is necessary to show that the particular employer’s reason for acting was one of the proscribed grounds.  Simply to say that the conduct was unreasonable tells us nothing about the grounds for acting in that way.  The fact that the victim is black or a woman does no more than raise the possibility that the employer could have been influenced by unlawful discriminatory consideration.  Absent some independent evidence supporting the conclusion that this was indeed the reason, no finding of discrimination can possibly be made.

 

                        96.       ... Nor in our view can Sedley LJ (in Anya v University of Oxford) be taken to be saying that the employer can only establish a proper explanation if he shows that he in fact behaves equally badly to members of all minority groups.  The fact that he does so will be one way of rebutting an inference of unlawful discrimination, even if there are pointers which would otherwise justify that inference.  ...  No doubt the mere assertion by an employer that he would treat others in the same manifestly unreasonable way, but with no evidence that he had in fact done so, would not carry any weight with a Tribunal which is minded to draw the inference on proper and sufficient grounds that the cause of the treatment has been an act of unlawful discrimination.”

 

In particular, in Paragraph 101 of Elias J’s judgment explained that unreasonable conduct is not necessarily irrelevant and may provide a basis for rejecting an explanation given by the alleged discriminator but then added these words of caution:-

 

“The significance of the fact that the treatment is unreasonable is that a Tribunal will more readily in practice reject the explanation, given that it would if the treatment were reasonable.  In short, it goes to credibility.  If the Tribunal does not accept the reason given by the alleged discriminator, it may be open to it to infer discrimination.  But it will depend upon why it has rejected the reason he has given, and whether the primary facts it finds provide another and cogent explanation for the conduct.  Persons who have not discriminated on the proscribed grounds may nonetheless give a false reason for the behaviour.  They may rightly consider, for example, that the true reason costs then in a less favourable light, perhaps because it discloses incompetence or insensitivity.  If the findings of the Tribunal suggest there is such an explanation, then the fact that the alleged discriminator has been less than frank in the witness box when giving evidence will provide little, if any, evidence to support finding of unlawful discrimination itself.”

 

            At Paragraph 113 of his judgment, he also stated:-

 

“There is an obligation on the Tribunal to ensure that it has taken into consideration all potentially relevant non-discriminatory factors which might realistically explain the conduct of the alleged discriminator ... .”

 

            At Paragraph 220 he confirmed:-

 

“An inadequate or unjustified explanation does not of itself [Tribunal’s emphasis] amount to a discriminatory one.”

 

In the recent decision in the case of The Solicitors Regulation Authority v Mitchell [2014] UKEAT/0497/12, this guidance was summarised in the following way (Paragraph 46):-

 

                        “(i)       In appropriate circumstances the ‘something more’ can be an explanation proffered by the respondent for the less favourable treatment that is rejected by the Employment Tribunal.

 

                        (ii)        If the respondent puts forward a false reason for the treatment but the Employment Tribunal is able on the facts to find another                   non-discriminatory reason, it cannot make a finding of discrimination.”

 

Determining when the burden of proof is reversed can be difficult and controversial as illustrated in the following decisions.  In Maksymiuk v Bar Roma Partnership [UKEATS/0017/12], when Langstaff P at Paragraph 28 said:-

 

“The guidance in Igen v Wong has been carefully refined.  It is an important template for decision-making.  As Laing and Madarassy have pointed out however, a Tribunal is not required to force the facts into a constrained cordon where in the circumstances of the particular case they do not fit it.  That would not to be apply the words of the statute appropriately.  Intelligent application of the guidance, rather than slavish obedience where it would require contorted logic, is what is required.”

 

Further, in Birmingham City Council v Millwood [2012] UKEAT/0564, Langstaff P stated:-

 

                        “26      What is more problematic is the situation where there is an explanation that is not necessarily found to be a lie but which is rejected as opposed to one that is simply not regarded as sufficiently adequate.

 

                                    Realistically, it seems to us that, in any case in which an employer justifies treatment that has a detrimental effect as between a person of one race and a person or persons of another by putting forward a number of inconsistent explanations which are disbelieved (as opposed to not being fully accepted) there is sufficient to justify a shift of the burden of proof.  Exactly that evidential position would have arisen in the days in which King v Great Britain – China Centre [1992] ICR 516 was the leading authority in relation to the approach should take to claims of discrimination.  Although a Tribunal must by statute ignore whether there is any adequate explanation in stage one of its logical analysis of the facts, that does not mean, in our view, to say that it can and should ignore an explanation that is frankly inadequate and in particular are that is disbelieved.

                       

                        27        ... to prefer one conclusion rather than another is not, as it seems to us, the same as rejecting a reason put as being simply wrong.  In essence, the Tribunal in the present case appeared not to believe at least two of the explanations that were being advanced to it, and there were, we accept from what Mr Swanson has said, some three inconsistent explanations put forward for the difference in treatment that constituted the alleged discriminatory conduct.”

 

On the facts of the case, in the Solicitors Regulation Authority case, it was found that a false explanation for the treatment was given by the respondent’s witness, which was found to lack credibility and could therefore constitute the ‘something more’; and the Tribunal, having reversed the burden of proof, in the circumstances, was able to properly infer discrimination:-

 

“The Tribunal asked the reason why the claimant had been treated as she was.  It was not simply a question of the respondent putting forward no explanation but having given a false explanation.  This was clearly capable of being ‘something more’ ... .”

 

This issue again arose in a further recent decision by the Employment Appeal Tribunal in the case of Veolia Environmental Services UK v Gumbs [UKEAT/0487/12] where the EAT recognised Igen, Madarassy and Hewage:-

 

“all exhibit the same tension; how to recognise the difficulty of proving discrimination on the one hand, whilst at the same time not stigmatising as racially discriminatory conduct which is simply irrational or unreasonable, on the other ... .”

 

In Effa v Alexandra Health Care NHS Trust [1999] (Unreported) Mummery LJ held:-

 

“It is common ground that an error of law is made by a Tribunal if it finds less favourable treatment from which it can properly make such an inference ... .  In the absence of direct evidence on an issue of less favourable treatment on racial grounds, the Tribunal may make inferences from other facts which are undisputed or are established by evidence.  However, in the absence of adequate material from which inferences can be properly made, a Tribunal is not entitled to find a claim proved by making unsupported legal or factual assumptions about disputed questions of less favourable treatment on racial grounds.  This is so whether the discrimination is alleged to rise from conscious or subconscious influences operating in the mind of the alleged discriminator.”

 

Further, as seen in R (on the application of E) v Governing Body of JFS and Others [2010] IRLR 136, Lady Hale (Paragraphs 62 – 64) emphasised that, in all but the most obvious cases involving direct discrimination, a Tribunal requires to consider the mental processes, whether conscious or subconscious, of the alleged discriminator.

 

It held, as set out in the head note of the judgment, it did not accept that Madarassy and Hewage supported the submission that an employer should not have the burden of proof reversed and be required to give a non-discriminatory explanation for its conduct in demoting an employee or denying the employee an opportunity to qualify to do different work where inconsistent explanations for the reason for the demotion had been given and an unacceptable account of knowledge of the ambition to qualify had been given.  Whilst the substance of the explanation should be excluded from consideration when deciding whether the burden of proof should be reversed the fact that explanations had been given which were inconsistent could be taken into account.  When an account of lack of knowledge as to the employee’s ambition to qualify for different work had been contradicted by other evidence that was a factor to be considered in deciding whether the burden of proof had shifted.

 

3.4       In the case of Curley v Chief Constable of the Police Service of Northern Ireland and Another [2009] NICA 8, the Northern Ireland Court of Appeal approved the judgement of Elias LJ in Laing, which was also referred to with approval by Campbell LJ in the Arthur case, that it was not obligatory for a Tribunal to go through the steps set out in Igen in each case; and also referred to the opinion of Lord Nicholls in Shamoon v  Chief Constable of the Royal Ulster Constabulary [2003] NI 147, where he observed at paragraph 8 of his opinion, as follows:-

 

“Sometimes a less favourable treatment issue cannot be resolved without, at the same time, deciding the reason why issue”.

 

Lord Nicholl’s opinion in the Shamoon case made clear the normal two step approach of Tribunals in considering, firstly, whether the claimant received less favourable treatment than the appropriate comparator, which can include an actual or hypothetical comparator, and then, secondly whether the less favourable treatment was on the proscribed ground, can often be avoided by concentrating on why the claimant was treated as he/she was; and was it for the proscribed reason or for some other reason.  If the latter, the application fails.  If the former, there would normally be no difficulty in deciding whether the less favourable treatment, afforded to the claimant on the proscribed ground was less favourable than was or would have been afforded to others (see further Paragraph 11 of Lord Nicholls’ opinion).  Indeed, Lord Nicholls’ opinion emphasised that the question whether there had been less favourable treatment and whether the treatment was on the grounds of [sex] are in fact two sides of the same coin.

 

3.5       In Nelson v Newry and Mourne District Council [2009] NICA 24, Girvan LJ referred approvingly to the decisions in Madarassy and Laing and also held that the words ‘could conclude’ are not to be read as equivalent to ‘might possibly conclude’.  He said “the facts must lead to the inference of discrimination”.  He also stated:-

 

                        “24.     This approach makes clear that the complainant’s allegation of unlawful discrimination cannot be used in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could probably conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination.  In Curley v Chief Constable the Police Service of Northern Ireland and Another [2009] NICA 8, Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that claim put forward is an allegation of unlawful discrimination.  The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A.  The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

 

In Efobi v  Royal Mail Group Limited [UKEAT/0203/167] Laing J emphasised that the factual materials available to the tribunal at the first stage of the exercise include all the evidence called up to the end of the hearing (see further Mummery LJ in Madarassy, Paragraphs 47 and 70).

 

In Ayodele v Citylink and another [2017] EWCA Civ 1913, the Court of Appeal confirmed that, in relation to the burden of proof, it remains (albeit the Court was interpreting the burden of proof provisions under the Equality Act 2010, which does not apply in this jurisdiction) – “a claimant” is required to bear the burden of proof at the first stage.  If he or she can discharge that burden (which is only to show that there is a prima facia case that the reason for the respondents’ act was a discriminatory one) then the claim will succeed unless the respondents can discharge the burden placed on it at the second stage.  In this context the relevant provisions under the 2010 Act are to the same effect as the provisions in Northern Ireland.

 

3.6       Carswell LCJ, as he then was, in the Sergeant A case, which also emphasised the necessity for the Tribunal to look at the matter, in the light of all the facts as found:-

 

                        “3.        Discrepancies in evidence, weaknesses and procedures, poor record keeping, failure to follow established administrative processes or a satisfactory explanation from an employer may all constitute material from which an influence of religious discrimination may legitimately be drawn.  But Tribunals should be on their guard against the tendency to assume that every such matter points towards a conclusion of religious discrimination, especially where other evidence shows such a conclusion is improbable on the facts.”

 

Although, both the Curley and Sergeant A cases were dealing with issues of religious discrimination, the dicta is also relevant, in the judgment of the Tribunal, to determination of claims of sex discrimination and/or religious discrimination and the interpretation of the relevant provisions relating to the burden of proof provisions, in the case law, referred to above, from the Employment Appeal Tribunal and the Court of Appeal of England and Wales . 

 

3.7       The now classic test for discrimination was contained in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 and later summarised by Lord Hoffman in Watt (Carter) v Ahman [2008] 1AC at Paragraph 36, as follows:-

 

“(1)      The test for discrimination involves a comparison between the treatment of the complainant and another person (‘the statutory comparator’) actual or hypothetical, who is not of the same sex or racial group as the case may be.

 

 (2)      The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in each case should be (or assumed to be) the same as, or not materially different from, those of the complainant.

 

 (3)      The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a Tribunal may infer how a hypothetical comparator would have been treated  ...  This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (‘the evidential comparator’) to those of the complainant and all the other evidence in the case.”

 

In Islington BC v Ladele [2009] ICR 387 Elias J held, in light of Ashan and  Shamoon (see before):-

 

“Employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was.”

 

This was endorsed in Dr Kalu v Brighton & Sussex University Hospital NHS Trust [2014] Eq LR 488.

 

In Shamoon it was further held, in order for a disadvantage to qualify as a ‘detriment’ it must arise in the employment field in that the court or tribunal must find that by reasons of the act or acts complained of a reasonable worker would or might take the view that he had been thereby disadvantaged in the circumstances in which he thereafter had to work.  An unjustified sense of grievance cannot amount to detriment (see further Derbyshire and Others v St Helen’s Metropolitan BC and Others [2007] ICR 841).  As held in Bowler v Chief Constable of Kent Constabulary [2017] UKEAT/0241, following Shamoon and Derbyshire, the grievance must be objectively reasonable as well as perceived as such by the claimant.

 

In CLFIS (UK) Ltd v Reynolds [2015] IRLR 562 the Court of Appeal held a person may be less favourably treated on the grounds of a protected characteristic [ie disability] either if the act complained of is inherently discriminatory or if the characteristic in question influenced the mental processes of the putative discriminator, whether consciously or unconsciously, to any significant extent.

 

It further held that it is fundamental to the scheme of the legislation that liability can only attach to an employer where an individual employee or agent for whose act he is responsible has done an act which satisfies the definition of discrimination.  That means that the individual employee who did the act complained of must have been motivated by the protected characteristic [ie disability].  There is no basis on which his act can be said to be discriminatory on the basis of someone else’s motivation.

 

In a recent decision of the Employment Appeal Tribunal in the case of Commissioner of Police of the Metropolis v Denby [2017] UKEAT/0314/16 Kerr J emphasised the ratio of CLFIS is simple:-

 

“52.     …  where the case is not one of inherently discriminatory treatment or of joint decision-making by more than one person acting with discriminatory motivation is liable; an innocent agent acting without discriminatory motivation is not.  Thus where the innocent agent acts on ‘tainted information’ (per Underhill LJ at Paragraph 34), ie ‘information supplied, or views expressed, by another employee whose motivation is or is said to have been discriminatory’, the discrimination is the supplying of the tainted information, not the acting upon it by the innocent recipient.”

 

Kerr J said the CLFIS principle needs careful handling and, in particular, a tribunal should not allow an employer to hide behind its more junior officers taking responsibility for decisions dictated to them by invisible senior officers, such as where an employer operates a system of deliberately opaque decision-making, intended to mask the involvement of senior employers in decisions.  On the facts of the case, it was found the ‘innocent’ police officer was not innocent as defined in CLFIS as he was fully aware of the discriminatory context. 

 

3.8       It is a well-recognised law that, before a claimant can establish a claim, pursuant to the 1995 Act, he must establish that he is a disabled person, having a disability, as defined in the 1995 Act (see before).  If he is unable to do so, any claims made, pursuant to the 1995 Act must fail (see J v DLA Piper UK LLP [2010] IRLR 936 and more recently Peninsula Business Services Ltd  v  Baker [UKEAT/0241/16].

 

3.9       In relation to the issue of disability and whether an employee is a prescribed person for the purposes of the 1995 Act, the Equality Commission issued guidance in a Code of Practice in 2005, replacing the original Code issued in 1996.  The Code does not impose legal obligations, nor is it an authoritative statement of the law, which remains a matter for the Tribunals.  However the Code can be used in evidence in legal proceedings under the Act.  Tribunals must take into account any part of the Code that appears to be relevant to any question arising in those proceedings.  If employers follow the guidance in the Code, it is stated it may help to avoid an adverse decision by a Tribunal in such proceedings.

 

3.10    In Appendix B of the Code general reference to the meaning of disability is provided, to aid understanding about who is covered by the Act and mirrors the guidance, issued by the Office of the First Minister and Deputy First Minister (OFMDFM) 2008, to which further reference is made below.  This Appendix confirms the definition of disability covers physical or mental impairments and states the term ‘mental impairment’ is intended to cover a wide range of impairments relating to mental functioning including what are known as learning disabilities.  It further states that ‘a substantial adverse effect is something which is more than a minor or trivial effect.  The requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people’ and ‘the long-term effect of an impairment are:-

 

                        (1)       which has lasted at least 12 months; or

 

(2)       where the total period for which it lasts is likely to be at least 12 months; or

 

(3)       which is likely to last for the rest of the life of the person affected.’

 

            In relation to the issue of ‘normal day-to-day activities’ the Code states:-

 

“They are activities which are carried out by most people on a fairly regular and frequent basis.”

 

The term is not intended to include activities which are normal only for a particular person or group of people such as playing a musical instrument or a sport, to a professional standard or performing a skilled or specialised task at work.  However, someone who is affected in such a specialised way but also affected in normal             day-to-day activities is whether it affects one of the broad categories of capacity listed in Schedule 1 to the Act (see earlier).

 

The Code refers to someone with an impairment may be receiving medical or other treatment which alleviates or removes the effects (though not the impairment).  In such cases, the treatment is ignored and the impairment is taken to have the effect it would have had without such treatment.  This does not apply if substantial adverse effects are not likely to recur even if the treatment stops (ie the impairment has been cured).

 

3.11    The Tribunal is satisfied the correct guidance in this jurisdiction is contained in guidance issued by OFMDFM in 2008; albeit it is now ‘out of print’.  It is in similar terms to guidance issued in Great Britain, pursuant to the Equality Act 2010, which does not apply in this jurisdiction.

 

            In the OFMDFM Guidance, in particular, it is stated, insofar as relevant to these proceedings:-

 

“It is not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded.  For example, liver disease as a result of alcohol dependency would count as an impairment, although alcoholism itself is expressly excluded from the scope of the definition of disability in the Act.  What it is important to consider is the effect of an impairment not its cause – provided that it is not an excluded condition.”

 

(See further Urso v Department for Work and Pensions [UKEAT/0045/16], where the Employment Appeal Tribunal confirmed the focus should be on the underlying facts which amounted to the disability and the effects of it, not on the condition itself.)

 

“Mental Illness

 

A9.      The Act previously required that where an impairment arose from or consisted of, a mental illness, that illness had to be clinically well-recognised in order for it to be regarded as a mental impairment for the purposes of the Act.  The Disability Discrimination (Northern Ireland) Order 2006 amended the original Act to remove this requirement.  However, anyone who has an impairment including one resulting from a mental illness will still need to meet the requirements of the definition as set out in Paragraph A1, in order to demonstrate that they have a disability under the Act.

 

                        Section D : Normal day-to-day activities

 

                        List of ‘capacities’

 

D1.      The Act states that an impairment is to be taken to affect the ability of a person to carry out normal day-to-day activities only if it affects that person in respect of one or more of the following :

 

·         mobility;

 

·         manual dexterity;

 

·         physical co-ordination;

 

·         continence;

 

·         ability to lift, carry or otherwise move everyday objects;

 

·         speech, hearing or eyesight;

 

·         memory or ability to concentrate, learn or understand; or

 

·         perception of the risk of physical danger.

 

C         Since the Autism Act (Northern Ireland) 2011, as referred to above, the list in any such guidance should now also include:-

 

                        (a)       taking part in normal social interaction; and

 

                        (b)       forming social relationships.

 

For the purposes of this guidance, the above list will be referred to as a list of ‘capacities’.

 

D2.      The list of capacities should be looked at in a broad sense, and applied equally to both physical and mental impairments.  For example, it is often assumed that for people with a mental impairment the relevant capacity will be ‘memory or ability to concentrate, learn or understand’.  The capacities of mobility and physical co-ordination, for example, are often seen as relevant only where there is a physical impairment.

 

            However, in many instances this will not be the case.  A person with a mental impairment may also have difficulties carrying out activities that involve mobility or other ‘physical’ skills, and people with a physical impairment may also have effects that involve mental processes such as the ability to concentrate (for example, as a result of pain or fatigue).

 

D3.      An impairment will only be treated as affecting a normal       day-to-day activity if it involves at least one of the capacities set out at D1.  The substantial effect is determined by looking at the effect on the particular day-to-day activity, not the relevant capacity.  So, for example, an inability to go shopping because of restricted mobility is in itself a substantial effect on a normal day-to-day activity: it is not necessary to show that all or any other aspects of the capacity of mobility are substantially affected.

 

Meaning of ‘normal day-to-day activities’

 

D4.      It should be noted that the list of capacities set out in D1 is not a list of day-to-day activities.  It is not possible to provide an exhaustive list of day-to-day activities, although guidance on this matter is given here.  In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities.

 

D5.      The term ‘normal day-to-day activities’ is not intended to include activities which are normal only for a particular person, or a small group of people.  In deciding whether an activity is a normal day-to-day activity, account should be taken of how far it is normal for a large number of people, and carried out by people on a daily or frequent and fairly regular basis.  In this context, ‘normal’ should be given its ordinary, everyday meaning.

 

D6.      A normal day-to-day activity is not necessarily one that is carried out by a majority of people.  For example, it is possible that some activities might be carried out only, or more predominantly, by people of a particular gender, such as applying make-up or using hair curling equipment, and cannot therefore be said to be normal for most people.  They would nevertheless be considered to be normal day-to-day activities.

 

Work-related and other specialised activities

 

D7.      Normal day-to-day activities do not include work of any particular form because no particular form of work is ‘normal’ for most people.  In any individual case, the activities carried out might be highly specialised.  For example, carrying out delicate work with specialised tools may be normal working activity for a watch repairer, whereas it would not be normal for a person who is employed as a semi-skilled worker.  The Act only covers effects which go beyond the normal differences in skill or ability.

 

D8.      The same is true of other specialised activities such as playing a musical instrument to a high standard of achievement; taking part in a particular game or hobby where very specific skills or level of ability are required; or playing a particular sport to a high level of ability, such as would be required for a professional footballer or athlete.

 

D9.      However, many types of work or specialised hobby, sport or pastime may still involve normal day-to-day activities.  For example, sitting down, standing up, walking, running, verbal interaction, writing, making a cup of tea, using everyday objects such as a keyboard, and lifting, moving or carrying everyday objects such as chairs.”]

           

3.12    It has to be remembered that, before an impairment can be regarded as a disability for the purposes of the 1995 Act it has to have a substantial adverse effect on a person’s ability to carry out normal day to day activities, which it sees in the relevant case law has been the subject of much interpretation.  In the recent decision of the Employment Appeal Tribunal, in the case of Herry v Dudley MBC [2016] UKEAT/0100/16, the Employment Appeal Tribunal reviewed the authorities in relation to how the Tribunal should determine whether conditions described as ‘depression’ will amount to a relevant impairment.  In particular, it followed the well-known guidance of Underhill J, as he then was in the case J v DLA Piper UK [2010] ICR 1052, Paragraph 42, when he stated:-

 

 

“The first point concerns the legitimacy in principle of the kind of distinction made by the Tribunal, as summarised at para. 33 (3) above, between two states of affairs which can produce broadly similar symptoms: those symptoms can be described in various ways, but we will be sufficiently understood if we refer to them as symptoms of low mood and anxiety.  The first state of affairs is a mental illness – or, if you prefer, a mental condition – which is conveniently referred to as ‘clinical depression’ and is unquestionably an impairment within the meaning of the Act.  The second is not characterised as a mental condition at all but simply as a reaction to adverse circumstances (such as problems at work) or – if the jargon may be forgiven – ‘adverse life events’.  We dare say that the value or validity of that distinction could be questioned at the level of deep theory; and even if it is accepted in principle the borderline between the two states of affairs is bound often to be very blurred in practice. But we are equally clear that it reflects a distinction which is routinely made by clinicians – it is implicit or explicit in the evidence of each of Dr Brener, Dr MacLeod and Dr Gill in this case – and which should in principle be recognised for the purposes of the Act.  We accept that it may be a difficult distinction to apply in a particular case; and the difficulty can be exacerbated by the looseness with which some medical professionals, and most laypeople, use such terms as ‘depression’ (‘clinical’ or otherwise), ‘anxiety’ and ‘stress’.  Fortunately, however, we would not expect those difficulties often to cause a real problem in the context of a claim under the Act.  This is because of the long-term effect requirement. If, as we recommend at para. 40(2) above, a Tribunal starts by considering the adverse effect issue and finds that the claimant's ability to carry out normal day-to-day activities has been substantially impaired by symptoms characteristic of depression for twelve months or more, it would in most cases be likely to conclude that he or she was indeed suffering ‘clinical depression’ rather than simply a reaction to adverse circumstances: it is a common-sense observation that such reactions are not normally                 long-lived.”

 

Importantly, in the context of the present proceedings, the Employment Appeal Tribunal in Herry added the following comment:-

 

“56.     Although reactions to adverse circumstances are indeed not normally long-lived, experience shows that there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day-to-day activities.  A doctor may be more likely to refer to the presentation of such an entrenched position as stress than as anxiety or depression.  An Employment Tribunal is not bound to find that there is a mental impairment in such a case.  Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by an Employment Tribunal) are not of themselves mental impairments; they may simply reflect a person’s character or personality.  Any medical evidence in support of a diagnosis of mental impairment must of course be considered by an Employment Tribunal with great care; so must any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee’s satisfaction; but in the end the question whether there is a mental impairment is one for the Employment Tribunal to assess.”

 

It was held in Morgan v Staffordshire University [2002] IRLR 190 medical notes which refer to ‘anxiety’, ‘stress’, and ‘depression’ do not amount to proof of mental impairment within the meaning of the 1995 Act.

 

In Ekpe v Commissioner of Police of the Metropolis [2001] IRLR 605, the EAT held that what is ‘normal’ may me best understood by defining it as anything which is not abnormal or unusual (or in the words of the Guidance … ‘particular’ to the individual claimant).  What is normal cannot sensibly depend on whether the majority of people do it.  The antithesis for the purposes of the Act is between what is ‘normal’ and that which is ‘abnormal’ or ‘unusual’ as a regular activity, judged by an objective population standard.

 

In Richmond Adult Community College v McDougall [2008] IRLR 227, the Court of Appeal held the point in time for determining whether the effect of an impairment is likely to last for a least 12 months is the time of the decision complained of.  The tribunal should make this judgment on the basis of evidence as to the circumstances prevailing at the time of that decision.

 

In Patel v Oldham BC [2010] IRLR 280, it was held by the EAT, the effect of an illness or condition forms part of the assessment of whether the effect of the original impairment is likely to last or has lasted at least 12 months.  In the recent decision, in the case of The Guinness Partnership v Symoniak [2017] UKEAT/0065/17 applying RBS v Morris [2010] UKEAT/0244, HH Judge Eady QC emphasised that it is necessary for the tribunal to determine whether the effect of the impairment is long term, ‘noting it is not the impairment that has to be long term but the effect of that impairment’.  It is not enough that a medical condition has lasted 12 months, it is necessary to assess the effects of that condition.  She also confirmed that is for the tribunal rather than any medical expert to determine whether impairments suffered by a claimant were or were not substantial (see also Abadeh v BT [2001] IRLR 23).

 

In Ekpe v Commissioner of Police of the Metropolis [2001] IRLR 605, it was held an Employment Tribunal is entitled to have regard to its own observation of the claimant in determining the extent of the claimant’s disability.  A decision as to whether a disability has an adverse impact on normal day-to-day activities and whether that impact is substantial may properly be influenced by the behaviour of the claimant as demonstrated before the Tribunal, although any Tribunal considering whether to draw an conclusion from such behaviour would be expected to raise that possibility at the hearing. 

 

However, Ekpe must be read in light of the decision in McDougall referred to above and the case law below in Harvey on Industrial Relations and Employment Law, Volume 2, Section L, Paragraph 135), which all were reported after Ekpe:-

 

“In dealing with the identification of a disability it is important not to be influenced by preconceptions about what is and is not within the definition, and a robust ‘common-sense’ approach is no substitute for the detailed tests laid down by statute.  How the claimant appears to the tribunal when giving his or her evidence is only one part of the relevant considerations, and should not be accorded too much importance.  The relevant time to consider whether a person was disabled is at the date of the alleged discrimination (see MacDougall applied in Chief Constable of Sussex Police v Millard [2016] UKEAT/0341/14.  The EAT in Mahon v Accuread Ltd [2008] UKEAT/0081/08, citing MacDougall, criticised the tribunal for its comments about the appearance of the claimant at the hearing before them … remarking that the question for the tribunal was whether the claimant was disabled at the ‘relevant period’, not the date of the hearing.”

 

In Vicary v BT [1999] IRLR 680, it was held it is not for a doctor to express an opinion as to what is a normal day-to-day activity.  Nor is it for the medical expert to tell the Tribunal whether the impairment which had been proved were or were not substantial.  Those are for the Tribunal to arrive at its own assessment.

 

Further, in Ekpe, in commenting on the examples in the guidance, it was stated:-

 

“In answering the question whether the effect is substantial, regard may be had to the examples given in the guidance – but it needs to be emphasised that they are examples only.  To focus upon the detail of an example may be to exclude the broader picture of which the detail is only part – yet it is that broader picture ... that has to be considered.”

 

In Cordell v FCO [2011] Eq LR 1210, the EAT held direct discrimination requires the tribunal to consider two questions: ‘the less favourable treatment question’ and ‘the reason why question’.  These two questions are two sides of the same coin and the answer to one should give the answer to the other.  As between the two questions, however, it is ‘the reason why’ question that is in truth fundamental … but where there is [no comparator] it will usually be better to focus on the reason why question than to get bogged down in the often arid and confusing task of constructing a hypothetical comparator.

 

For the purposes of a direct disability discrimination claim, it is not necessary for the employer to know a person has a disability, within the meaning of the Act; but, knowledge may be very relevant to the question whether any less favourable treatment was on the ground of the disabled person’s disability (see later re duty to make reasonable adjustments).

 

            In view of the different medical opinions given in evidence by the consultant psychiatrists, the medical experts acting on behalf of the parties, it is relevant to have regard to the following in relation to psychiatric evidence.

 

            In Mark Noble v Martin Raymond Owens [2008] EWHC 359 (QB) Field J stated:-

 

                        In my judgment, the precise characterisation of Mr Noble’s psychiatric disorder does not signify what matters are the symptoms of Mr Noble’s condition and the prognosis.

 

                        In his review of ‘Expert Psychiatric Evidence by Keith Rex [2011], H H Judge J Cockcroft “colourfully” commented:-

 

                                    “There is too much emphasis on attaching a label to the claimant’s condition and it is the contents of the jar, not the label that matters”. 

 

            He also reported his experience of psychiatrists who agree about everything relevant to the claim but vehemently disagree only as to the diagnosis.

 

3.13    In relation to a failure to comply with the duty to make reasonable adjustments, in Project Management Institute v Latif [2007] IRLR 579, it was held that something more than simply establishing an arrangement resulting in a substantial disadvantage is required before the burden of proof shifts to the respondent.  To simply establish an arrangement and substantial disadvantage establishes a duty to make adjustments has arisen.  For the burden to shift a claimant must establish facts from which it could conclude a ‘breach’ has taken place.

 

            In Environment Agency v Rowan [2008] IRLR 20, the EAT held it was necessary to identify:-

 

            (a)       the provision, criterion or practice applied by or on behalf of an employer (‘PCP');

 

            (b)       the physical feature of premises occupied by or on behalf of an employer;

 

            (c)        the identity of the non-disabled comparators (where appropriate); and

 

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

 

            (See also    Wiltshire CC [1999] IRLR 352.)

 

To identify a PCP is of importance to be established for the purposes of determining the other matters in the relevant section of the 1995 Act (eg substantial disadvantage by comparison with persons who are not disabled).  In a recent decision in the case of Carreras v United First Partners Research [2016] UKEAT/0266/15/RN, the EAT stated:-

 

“The protective nature of the legislation meant a liberal rather than an overly technical approach should be adopted.”

 

In Royal Bank of Scotland v Ashton [2011] ICR 632 Langstaff J held that a Tribunal had to be satisfied there was a PCP which had placed the disabled person concerned 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.

 

Substantial disadvantage, under the Disability Discrimination Act 1995, means ‘more than minor or trivial’ (see Goodwin v Patent Office [1999] IRLR 4; and also further the Code of Practice).  The correct comparator in a reasonable adjustment case was held by the Court of Appeal in the case of Smith v Churchill Stairlifts PLC [2006] IRLR 41 to be readily identified by reference to the particular disadvantage caused by the relevant arrangements, and the comparison is not made with the entire non-disabled population.  Thus, the comparison is required to be made between the disabled person concerned and persons who are not disabled.  This case also made clear, as indicated above, the rest of reasonableness (for the purpose of the duty to make reasonable adjustments) is objective and not subjective.

 

The Court of Appeal in United Partners Research v Carreras [2018] EWCA Civ 323 confirmed a requirement to work long hours did not have to involve actual coercion the amount to a provision, criterion or practice, for the purposes of a claim for failing to comply with the duty to make reasonable adjustments.

 

In Griffiths v Secretary of State for Works and Pensions [2015] EWCA Civ 1265, Elias LJ confirmed that the appropriate comparative exercise was to ask whether the PCP puts the disabled person at a substantial disadvantage compared with a non-disabled person.  If the PCP “bites harder” on the disabled worker than it does on the non-disabled, then the duty arises (see paragraph 58).  When deciding whether a step is reasonable, it is necessary to consider the certainty or uncertainty of the adjustment succeeding in avoiding the disadvantage.  As Elias LJ stated in Griffiths

 

            “So far as efficiency is concerned, it may be that it is not clear whether the step proposed will be effective or not. It may still be reasonable to take the step not withstanding that success is not guaranteed; the uncertainty is all of the factors to weight up when assessing the question of reasonableness.

 

The test of reasonableness is an objective one for the Tribunal to determine and what is reasonable will depend on the circumstances of the case.

 

3.14    As stated previously, in relation to any failure in the duty to make reasonable adjustments, knowledge of the employer has to be considered (see Section 4A(3) of the 1995 Act).  It is clear from the above section the employer only comes under the said duty if it knows not only that the relevant person is disabled but also that the disability is likely to put him at a substantial disadvantage in comparison with                  non-disabled persons.  Knowledge is not directed to actual knowledge but extends to constructive knowledge (on what the employer ought reasonably to have known).

 

            The decision of the House of Lords in Lewisham BC v Malcolm [2008] IRLR 700, a case relating to disability-related discrimination (not relevant in present proceedings), emphasised the importance of knowledge of disability as a              pre-requisite to a claim and the comments, in the judgment, about necessity of knowledge (actual or imputed) are in such terms that they would seem also to apply to the necessity for knowledge in case of failure to comply with the duty to make reasonable adjustments (see further Paragraph F4.027 of Discrimination in Employment Law – Tucker and George). 

 

            Knowledge can be imputed to an employer where there has been evidence put before it which should have put the employer on notice of the disability (see Edworthy v YMCA South Devon Ltd [2003] UKEAT/0867).

 

            In British Gas Ltd v McCaull [2001] IRLR 60, it was held an employer does not have to consciously consider what steps it should take in the context of Section 4A: it is not automatically a breach of the duty to be unaware of the existence of the duty.

 

            In the Equality Commission Code of Practice, referred to previously, it is provided, inter alia:-

 

                        “5.12

 

Although … the employer only has a duty to make an adjustment if it knows, or could reasonably be expected to know, that the employee has a disability and is likely to be placed at a substantial disadvantage.  The employer must, however, do all it can reasonably be expected to do to find out whether this is the case.

 

An employee with depression sometimes gets upset at work, but the reason for this behaviour is not known to her employer. The employer makes no effort to find out if the employee is disabled and whether a reasonable adjustment could be made to the person's working arrangements.  …

 

5.15

 

If an employer's agent or employee (such as an occupational health adviser, a personnel officer or line manager …) knows, in that capacity, of an employee's disability, the employer will not usually be able to claim that it does not know of the disability, and that it therefore has no obligation to make a reasonable adjustment.  …  Employers therefore need to ensure that where information about disabled people may come through different channels, there is a means - suitably confidential - for bringing the information together, to make it easier for the employer to fulfil its duties under the Act.”

 

In relation to constructive knowledge in DWP v Hall [2005] UKEAT/0012/05/DA the EAT emphasised the question whether an employer had, or ought to have had, knowledge is a question of fact for the tribunal.

 

However, whether an employer must make reasonable enquiries based on the information given to them, it does not require them to make every possible enquiry, especially if there is little or no basis for doing so (Ridout v TC Group [1998] IRLR 628; Secretary of State for Work and Pensions v Alam [2010] ICR 665).

 

In Wilcox v Birmingham CAB Services Ltd [2010] UKEAT/0293, Underhill J made clear the knowledge defence was that an employer will not be liable for failure to make reasonable adjustments, unless it had actual or constructive knowledge of both (1)  the employee was disabled; and (2)  that he was not disadvantaged by the disability in the way set out in Section 4A (ie by a PCP).

 

In Tarbuck v Sainsburys Supermarkets Ltd [2006] IRLR 664, Elias J held:-

 

“It will always be good practice for the employer to consult and it will potentially jeopardise the employer’s legal position if he does not do so – because the employer cannot use the lack of knowledge that would have resulted from consultation as a shield to defend a complaint that he had not make reasonable adjustments – there is no separate and distinct duty of this kind.”

 

            In Doran v Department of Works and Pensions (UKEATS/0017/14), it was held   whether an employer has complied with their duty to make reasonable adjustments will be judged not only on what they knew but also on what should have been known to them had they made reasonable enquiries at the relevant time; and, on the basis of such evidence, the tribunal will decide whether if such enquiries had been made the duty to make reasonable adjustments had arisen (followed in Nottingham City Homes Ltd v Brittain (UKEAT/0038/18).  On the facts of the case, the claimant was seeking to rely on a retrospective opinion of a doctor given in evidence and since it was not before the employer when it took the relevant decisionthere was therefore not the relevant knowledge at the material time (ie known as properly known to it).  In London Underground v Vuoto (UKEAT/0123/09) it was held that there was no general proposition of law that an employer’s duty to make reasonable adjustments does not arise until an employee indicates when they will be able to return to work.  In Leeds Teaching Hospital Trust v Foster (UKEAT/0552/10) it was held if there is a real prospect of an adjustment removing a disabled employee’s disadvantage that would be sufficient to make the adjustment a reasonable one but that does not mean that a prospect less than a real prospect would not be sufficient to make the adjustment a reasonable one.

 

            The issue of constructive knowledge has recently been the subject of further consideration by the Court of Appeal in Donelien v Liberata UK Ltd [2018] EWCA Civ 219, confirming the issue for a tribunal is what the employer could reasonably have been expected to know and emphasising, in making such an assessment of reasonableness of that nature, the exercise is factual in character.  There the Court of Appeal upheld a tribunal’s decision that an employer did not have constructive knowledge of an employee’s disability and therefore had no duty to make reasonable adjustments.  The employer had not relied solely on an occupational health report stating the employee was not disabled; albeit later found to be wrong.  It had also taken into account ‘return to work’ meetings and letters from the employee’s GP.  It held an employee’s efforts need not be perfect and, in the circumstances, the tribunal was entitled to conclude the employer had taken reasonable steps to ascertain the nature of the employee’s illness and could not reasonably have been expected to do more.  In particular, unlike in Gallop v Newport CC [2013] EWCA Civ 1583, the employer had not simply “rubber stamped” the medical adviser’s report.  Further, making a change to someone’s working conditions does not in itself necessarily imply knowledge of disability.  The decision of the EAT in Toy v Chief Constable of Leistershire [2017] UKEAT/0124 provides a further illustration of the issues that can arise, when determining this issue of knowledge of disability. 

 

            Following Lewisham B. C. v Malcolm [2008] IRLR 700, it has become effectively impossible in this jurisdiction to bring a claim of disability related discrimination.  The 1995 Act has not been amended in this jurisdiction to reflect the position post Malcolm.  In GB, Section 15 of the Equality Act 2010 was introduced to include a claim where A treats B unfavourably because of something arising in consequence of B’s disability, subject to issues of justification (ie the claim arises from detrimental treatment by reference to something else which arises from the claimant’s disability not directly by reference to the claimant’s disability).  Therefore, in this jurisdiction, pursuant to the 1995 Act, unamended, the range of claims to be made is more limited than might be the case in Great Britain.

 

            In Toy, the claimant was a probationary Police Constable.  During the termination of his services during his probation under Police Regulations, he raised the possibility of dyslexia, which had not been raised primarily in work or academic training.  The tribunal, on the facts, correctly concluded the respondent did not and could not have been reasonably been expected to know that the claimant was disabled, at the relevant time (disability was later conceded) and so it could not be liable for complaints of failure to make reasonable adjustments.  At the time of dismissal the claimant’s contention was that it was possible he may be dyslexic but he was “not clear or certain he was dyslexic”.

 

            It is apparent from Toy and Donelien that, if the answer from an occupational health adviser on disability is positive, the employer will need good cause to disagree.  If it is negative then the employer cannot simply rubber stamp the opinion of the medical adviser, as it is the knowledge of the employer that is relevant.  If a detailed reasoned report is obtained by the employer, unlike in Gallop, the easier it is for the employer to form its own view.

 

4.         Unfair constructive dismissal

 

4.1       Employment Rights (Northern Ireland) Order 1996 (‘the 1996 Order’) provides:-

 

            Article 126 of the 1996 Order:-

 

“(1)      An employee has the right not to be unfairly dismissed by his employer.”

 

Article 127 of the 1996 Order:-

 

“(1)      For the purposes of this Part an employee is dismissed by his employer if ...

 

                                    (c)        The employee terminates a contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.”

 

4.2       As stated in Harvey on Industrial Relations and Employment Law, Volume 2, Section D1, at Paragraph 403, it has long been held that:-

 

“In order for an employee to be able to claim constructive dismissal four conditions must be met –

 

(1)          There must be a breach of contract by the employer.  This may be either an actual breach or an anticipatory breach.

 

(2)          That breach must be sufficiently important to justify the employee resigning or else it must be the last in a series of incidents which justify him leaving.  Possibly a genuine, albeit erroneous interpretation of the contract by the employer will not be capable of constituting a repudiation in law.

 

(3)          He must leave in response to the breach and not for some unconnected reason.

 

(4)          He must not delay too long in terminating the contract in response to the employer’s breach, otherwise he may be deemed to have waived the breach and agreed to vary the contract.”

 

(See further Western Excavating v Sharp [1978] QB 761.)

 

4.3       It should also be noted, in the above context, that a constructive dismissal is not necessarily unfair and it is normal for a tribunal, in order to make a finding of unfair constructive dismissal, to find the reason for the dismissal and whether the employer has acted reasonably in all the circumstances (Stevenson & Company (Oxford) Ltd v Austin [1990] ICR 609). 

 

4.4       Even if an employee cannot establish a breach of an express term of a contract, it has also been recognised that a contract of employment includes an implied obligation that an employer would not, without reasonable and proper cause, act in a manner calculated to or likely to destroy or seriously damage the relationship of trust and confidence between an employer and employee.  This is often referred to as the Malik term (see Malik v  Bank of Credit & Commerce International SA [1997] UKHL 23 and Baldwin v Brighton & Hove CC [2007] IRLR 232).

 

Baldwin confirmed that the original formulation of ‘calculated and likely’, as set out in some cases (including the leading case of Malik) was a slip.  The test is objective: an intention to damage the relationship is not required (see further Leeds Dental Team v Rose [2014] IRLR 8). 

 

4.5       However, as seen in Amnesty International v Ahmed [2009] ICR 1450 and Ministry of Justice v Sarfraz [UKEAT/0578/10] the phrases ‘without reasonable and proper cause’ and ‘destroy or seriously damage’ must be given their full weight.  As Lord Steyn stated in Malik, the term is there to protect ‘the employee’s interest in not being unfairly and improperly exploited’; the conduct must, objectively speaking, if not destroy then seriously damage trust and confidence – mere damage is not enough.

 

In Abbey National PLC v Fairbrother [2007] IRLR 320 the Employment Appeal Tribunal set out the following useful guidance:-

 

“(30)    ... conduct calculated to destroy or seriously damage the trust and confidence inherent in the employer/employee relationship may not amount to a breach of the implied term; it will not do so if the employer had reasonable and proper cause for the conduct in question.  Accordingly, the questions that require to be asked in a constructive dismissal case appear to us to be:-

 

                                    1.         What was the conduct of the employer that is complained of?

 

                                    2.         Did the employer have reasonable and proper cause for that conduct?

 

                                                If he did have such cause then that is an end of it.  The employee cannot claim that he has been constructively dismissed.

 

                                    3.         Was the conduct complained of calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?”

 

A failure, for example, adhere to a grievance procedure, or, in particular, to hold a proper appeal, in respect of a grievance may be a significant breach of the implied term of trust and confidence, entitling the claimant to claim constructive dismissal even if there is no issue as to the original grievance hearing.  (See Blackburn v Aldi Stores [2013] IRLR 846).

 

In Frankel v Topping [2015] UKEAT/01606/15, Langstaff P, in the EAT, held:-

 

“The test is a demanding test.  It has been held (see, for instance, the case of BG v O’Brien [2001] IRLR 496 at Paragraph 27) that simply acting in an unreasonable manner is not sufficient.  The word qualifying ‘damage’ is ‘seriously’.  This is a word of significant emphasis.  The purpose of such a term was identified by Lord Steyn in Malik ... as being ‘apt to cover the greater diversity of situations in which a balance has to be struck between an employer’s interest in managing his business as he sees fit and the employee’s interest in not being unfairly and improperly exploited.’  Those last few words are again strong words.  Too often we see in this tribunal a failure to recognise the stringency of this test.  The finding of such a breach is inevitably a finding of a breach which is repudiatory: see the analysis of the appeal tribunal in Morrow  v  Safeway Stores [2002] IRLR 9.”

 

4.6       The above authorities established it is an implied term, which is descriptive of conduct, viewed objectively, that is repudiatory in nature.  In assessing whether or not there has been a breach, what is significant is the impact of the employer’s conduct on the employee, objectively tested, rather than what, if anything, the employer intended (see further Woods  v  WM Car Services Peterborough [1981] IRLR 3) and the Malik decision.  In the more recent decision of Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, the Court of Appeal emphasised that a tribunal should determine the matter by reference to the law of contract and not by reference to the fairness and/or merits of the case:-

 

“the range of reasonable responses test is not appropriate to establish whether an employer has committed a repudiatory breach of contract entitling an employee to claim constructive dismissal”;

 

and thereby confirming the test for establishing constructive dismissal remains objective (see Western Excavating v Sharp [1978] ICR 221).  In the case of Tullett Prebon PLC v BGC Brokers LP [2011] IRLR 420, it was confirmed that the test for determining whether there was a repudiatory breach of the implied term of trust and confidence had to be determined objectively, ie from the perspective of the reasonable person in the position of the innocent party.  Applying the Malik test therefore does not import a range of reasonable responses (as applied when determining the fairness of any dismissal) (see further Sharfudee  v T J Morris Ltd T/a Home Bargains [2017] UKEAT/0272/16).

 

4.7       When considering the issue of ‘location’ in the context of a unfair constructive dismissal, there have been a number of helpful decisions, remembering that each case must be determined on its own facts.

 

            Firstly, the case of Bass Leisure Ltd v Thomas [1994] IRLR 104 established the principle that a breach of contract which consists of requiring an employee to work where she cannot be required to is obviously fundamental or repudiatory and entitles the employee to claim constructive dismissal. 

 

            In O’Brien and Associated Fire Alarms Ltd [1969] IRER 93, it was held there was no right automatically implied into the contract of employment, at least not beyond reasonable travelling distance from the employee’s home.

 

            It was held in Rank Xerox Ltd v Churchill and Others [1988] IRLR 280, in relation to where, under a contract of employment, an employee can be required to work, the correct approach to the analysis of the terms and conditions of employment is through contract and not through the overall superimposition of a test of reasonableness.  Therefore, where a contract included a clear and unambiguous express mobility clause providing that ‘the company may require you to transfer to another location’, it was an error law to construe that clause on the basis of reasonableness as being restricted to a reasonable daily travelling distance.  If there is an express term on mobility, this will bind the employee however unreasonable the term may be.

 

            In Aparau v Iceland Frozen Foods Plc [1996] IRLR 119 (EAT), it was held although there must necessarily be some term as to place of employment in a contract of employment, there is no necessity to have any implied clause about mobility where the nature of the work of the employee does not make such a claim necessary, nor is needed in order to give the contract efficacy.

 

            In White v Reflecting Roadstuds Ltd [1991] IRLR 331, the EAT confirmed that where an employer has a discretion under a flexibility/mobility clause, that there is not implied a term that an employer should act reasonably in exercising the discretion under a contractual mobility clause; to do so would be to introduce a reasonableness test into constructive dismissal cases by the backdoor, contrary to the dicta in Western Excavating v Sharp.  However, the EAT accepted that if there were no reasonable or sufficient grounds for requiring the employee to move, there would be a breach of the term that the contractual discretion will not be exercised capriciously.                                                                                                            [Tribunal’s emphasis]

            (See also United Bank Ltd v Akhtar [1989] IRLR 507).  In the case of F C Gardner Ltd v Beresford [1978] IRLR 63, in the matter, of remuneration, it was held an employer would not treat his employees arbitrarily, capriciously or inequitably.

 

4.8       In the decision of the Court of Appeal in the case of Nottingham County Council v Meikle [2005] ICR 1.

 

Keane LJ held:-

 

“It has long been held by the EAT in Jones v Sirl & Son (Furnishers) Ltd [1997] IRLR 493 that in constructive dismissal cases the repudiatory breach of the employer need not be the sole cause of the employee’s resignation.  The EAT there pointed out that there may well be concurrent causes operating on the mind of an employee whose employer has committed fundamental breaches of control and that the employee may leave because of both those breaches and another factor such as the availability of another job.  It suggested the test to be applied was whether the breach or breaches were the ‘effective cause’ of the resignation.  I see the attractions of that approach but there are dangers in getting drawn too far into questions about the employee’s motives.  It must be remembered that we are dealing here with a contractual relationship and constructive dismissal is a form of termination of contract by a repudiation by one party which is accepted by the other; see the Western Excavating case.  The proper approach therefore, once a repudiation of the contract by the employer has been established, is to ask whether the employee has accepted that repudiation by treating the contract as at an end.  It must be in response to the repudiation but the fact that the employee also objected to other actions or inactions of the employer not amounting to a breach of contract would not vitiate the acceptance of the repudiation …  Once it is clear the employer was in fundamental breach ... the only question is whether [the employee] resigned in response to the conduct which constituted that breach.”

 

This dicta was followed by Elias J, as he then was, in the case of Abbeycars (West Horndon) Ltd v Ford [UKEAT/0472/07], when he stated:-

 

“On that analysis it appears that the crucial question is whether the repudiatory breach played a part in the dismissal … ”

 

                        and

 

“It follows that once a repudiatory breach is established if the employee leaves and even if he may have done so for a whole host of reasons, he can claim that he has been constructively dismissed if the repudiatory breach is one of the factors relied upon.”

 

and also was followed in the case of Logan v Celyn Home Ltd [UKEAT/0069/12] where HHJ Shanks stated:-

 

“ … It should have asked itself whether the breach of contract involved in failing to pay the sick pay [the relevant breach] was a reason for the resignation not whether it was the principal reason.”

 

Elias J emphasised that there must be a causal connection between the breach of contract relied on and the resignation (see further Ishaq v Royal Mail Group Limited [2016] UKEAT/0156/16).

 

This approach was again recently confirmed and followed by Langstaff P in the case of Wright v North Ayrshire Council [EATS/0017/13] where he emphasised that it is an error of law for a tribunal, where there is more than one cause, to look for the effective cause in the sense of the predominant, principal, major or main cause and in doing so he raised concerns how the relevant law is expressed in Paragraph 521 of Harvey on Industrial Relations and Employment Law, Volume 1, Section D1. 

 

In the ‘summary head note’, Langstaff P stated:-

 

“In order to determine a claim for constructive dismissal, a tribunal had applied to a test, referred to in Harvey, whether the contractual breach by the employer was ‘the effective’ cause ‘of an employee’s resignation’.  It was now time to scotch any idea that this approach is correct if it implies ranking reasons which have all played a part in the resignation in a hierarchy so as to exclude all but the principal, main, predominant, cause from consideration.  The definite article ‘the’ is capable of being misleading.  The search is not for one cause which predominates over others, or which on its own would be sufficient but to ask (as Elias J put it in Abbey Cars v Ford) whether the repudiatory breach ‘played a part in the dismissal’.  This is required on first principles and by Court of Appeal authority (Meikle).  The tribunal here appeared to seek for ‘the’ cause rather than ‘a’ cause ... .”

 

In Buckland v Bournemouth University Higher Education Authority [2010] EWCA Civ 121, Sedley LJ in the Court of Appeal acknowledged that:-

 

                        “No decided case holds, in terms, that a repudiatory breach, once complete (that is not a merely anticipatory breach) is capable of being remedied so as to preclude acceptance ... absent waiver or affirmation, the wronged party has an unfettered choice of whether to treat the breach as terminal, regardless of his reasons or motive for so doing.  There is, in other words, no way back.

 

                        Albeit, with some reluctance, I accept that if we were to introduce into employment law the doctrine that a fundamental breach, if curable and if cured, takes away the innocent party’s option of acceptance, it could only be on grounds that are capable of extension to other contracts and for reasons I have given I do not consider that we would be justified in doing this.  This does not mean, however, that tribunals of fact cannot take a reasonably robust approach to affirmation: a wronged party, particularly if it fails to make its position entirely clear at the outset, cannot ordinarily expect to continue with the contract for very long without losing the option of termination, at least where the other party has offered to make suitable amends ... .”

 

Further, Jacob LJ, although not sharing Sedley LJ’s regret that a repudiatory breach of contract, once happened can be ‘cured’ by the contract breakdown held:-

 

“Once he has committed a breach of contract which is so serious that it entitles the innocent party to walk away from it, I see no reason for the law to take away the innocent party’s right to go.  He should have a clear choice: affirm or go.  Of course the wrongdoer can try to make amends – to persuade the wrong party to affirm the contract.  But the option ought to be entirely at the wronged party’s choice.

 

As held by Langstaff P, in Lochuack v London Borough of Sutton [2014] UKEAT/0197/14 said there may well be concurrent causes operating on the mind of an employee; that is not fatal to a claim of constructive dismissal (see further Carreras v United First Partners Research [2016] UKEAT/02655/15).

 

4.9       In relation to the implied term of trust and confidence, to which there has been previous reference, Lord Nicholls in Eastwood v Magnox Electric plc [2004] UKHL35 stated the trust and confidence term meant that an employer must act responsibly and in good faith in the conduct of the employer’s business and the employer’s treatment of his employees.

 

            In the case of Cantor Fitzgerald International v Bird [2002] IRLR 867, it was held by the High Court, over-aggressive promotion of proposed changes to terms and conditions by a particular manager, including threatening and intimidatory behaviour, can amount to conduct calculated or likely to seriously damage or destroy the relation of trust and confidence between employee and employer.  The case also held that the fact an employee has lost confidence in management is not the same as conduct by the employer calculated to destroy or seriously damage trust and confidence between employer and employee in the sense of the implied term.

 

4.10    As has long been recognised (see further Paragraphs 480 – 481.01 in Harvey on Industrial Relations and Employment Law, Section D1), many constructive dismissal cases which arise from the undermining of trust and confidence, can involve the employee contending that he left in response to a course of conduct carried on over a period of time, but the particular instance which caused the employee to leave may in itself be insufficient to justify his taking that action; but nevertheless, when viewed against a background of such incidents, it may be considered sufficient by the courts to warrant treating the resignation as a constructive dismissal (‘the last straw’ doctrine). 

 

As was made clear in the case of London Borough of Waltham Forest v Omilaju [2005] IRLR 35, in order to result in a breach of the implied term of trust and confidence, a ‘final straw’ which is not itself a breach of contract, must be an act in a series of earlier acts which taken together amount to a breach of the implied term.

 

            The Court of Appeal, at Paragraph 14 of the judgment, set out, in particular, the following in relation to the relevant principles to be adopted in relation to a claim of unfair constructive dismissal, namely:-

 

“(1)      The test for constructive dismissal is whether the employer’s actions or conduct amounted to a repudiatory breach of the contract of employment: Western Excavating (ECC) Ltd v Sharp [1978] ICR 221.

 

 (2)      It is an implied term of any contract of employment that the employer shall not without reasonable and proper cause conduct itself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee: see, for example, Malik v Bank of Credit & Commerce International SA [1997]ICR 606 , ... .  I shall refer to this as ‘the implied term of trust and confidence’. [The Malik term]

 

 (3)      Any breach of the implied term of trust and confidence will amount to a repudiation of the contract: see, for example, per                        Browne-Wilkinson J in Woods v WM Car Services (Peterborough) Ltd [1981] ICR 666 ... .  The very essence of the breach of the implied term is that it is calculated or likely to destroy or seriously damage the relationship [original emphasis].

 

 (4)      The test of whether there has been a breach of the implied term of trust and confidence is objective.  As Lord Nichol said in Mahmud at Page 610H the conduct relied on as constituting the breach must –

 

‘Impinge on the relationship in the sense that looked at objectively [emphasis added by Dyson LJ], it is likely to destroy or seriously damage the degree of trust and confidence the employee is reasonably entitled to have with his employer’.

 

(5)      A relatively minor act may be sufficient to entitle the employee to resign and leave his employment if it is the last straw in a series of incidents.  It is well put in Harvey on Industrial Relations and j Employment Law, Paragraph D1(or 80):

 

‘Many of the constructive dismissal cases which arise from the undermining of trust and confidence will involve the employee leaving in response to a course of conduct carried on over a period of time.  The particular incident which causes the employee to leave may in itself be insufficient to justify his taking that action, but when viewed against a background of such incidents it may be considered sufficient by the Courts to warrant their treating the resignation as a constructive dismissal.  It may be the ‘last straw’ which causes the employee to terminate a deteriorating relationship’.

 

Further, at Paragraph 16 of his judgment, Dyson LJ said this:

 

‘(16)    Although the final straw may be relatively insignificant, it must not be utterly trivial: the principle that the law is not concerned with very small things (more elegantly expressed in the maxim ‘de minimise non curate lex’) is of general application.’

 

Further, at Paragraph 19 Dyson LJ said:

 

‘(19)    ... the quality of that the final straw must have is that it should be an act in a series whose cumulative effect is to amount to a breach of the implied term.  I do not use the phrase ‘an act in a series’ in a precise or technical sense.  The act does not have to be of the same character as the earlier acts.  Its essential quality is that, when taken in conjunction with the earlier acts, on which the employee relies, it amounts to a breach of the implied term of trust and confidence.  It must contribute something to that breach, although what it adds may be relatively insignificant.’.”

 

The Court of Appeal held in particular:-

 

“The act does not have to be of the same character as the earlier acts.  Its essential quality is that, when taken in conjunction with the earlier acts upon which the employee relies, it amounts to a breach of the terms of trust and confidence.  It must contribute something to that breach, although what it adds may be relatively insignificant so long as it is not utterly trivial.  Thus, if an employer has committed a series of acts which amount to a breach of the implied term of trust and confidence but the employee does not resign and affirms the contract, he cannot rely on those acts to justify a constructive dismissal if the ‘final straw’ is entirely innocuous and not capable of contributing to that series of earlier acts.  The ‘final straw’, viewed in isolation, need not be unreasonable or blameworthy conduct.  …  Moreover an entirely innocuous act on the part of the employer cannot be a ‘final straw’, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of his trust and confidence in the employer.  The test of whether the employee’s trust and confidence has been undermined is objective.” 

(Tribunal emphasis – see later).

 

(See further Pan v Portigon AG London Branch [2013] UKEAT/0116 where the tribunal followed the said principles set out in Omilaju and found a return to work letter sent by the respondent to the claimant as ‘innocuous’, insofar as it was relied upon by the claimant, as the last straw entitling him to regard himself as discharged from further performance; and the said principles were again followed in Nicholson v Hazel House Nursing Home Ltd [2016] UKEAT/024/15.)

 

            The passage from the Court of Appeal in Omilaju, emphasised above, has given rise to some dispute in some recent cases eg Addenbrooke v Princess Alexandra Hospital NHS Trust [2014] ICR D9, Pets at Home Ltd v MacKanzie [2017] UKEAT/0146; and, in particular where there is subsequent conduct which, taken together with the employer’s earlier fundamental breach, causes the employee to resign or plays a part in the decision to resign, can the latter act effectively reactivate the earlier fundamental breach, which had been affirmed and not acted upon at the time.

 

            In the recent decision of the Court of Appeal in Kaur v Leeds Teaching Hospital NHS Trust [2018] EWCA Civ 978, Underhill LJ, followed Omilaju and held that an employee who is the victim of a continuing cumulative breach of contract is entitled to rely on the totality of the employer’s acts nothwithstanding a prior affirmation by the employee.  He held, following Omilaju, that, if the conduct in question is continued by a further act or acts, in response to which the employee does resign, he or she can still rely on the totality of the conduct in order to establish a breach of the Malik implied term.  To hold otherwise would mean that, by failing to object at the first moment that the conduct reached the threshold of breaching the Malik term of trust and confidence, the employee lost the right ever to rely on all conduit up to that point.  This would in his judgment be unfair and unworkable.  So, as long as the last straw forms part of the series, per Omilaju, it can “revive” earlier breaches.

 

            At paragraph 55, Underhill provided the following guidance, in a normal case where an employee claims to have been constructively dismissed, namely:-

 

            (1)       What was the most recent act (or omission) on the part of the employer which the employee says caused, or triggered, his or her resignation?

 

            (2)       Has he or she affirmed the contract since that act?

 

            (3)       If not, was that act (or omission) by itself a repudiatary breach of contract?

 

            (4)       If not, was it nevertheless a part (applying the approach explained in Omilaju) of a course of conduct comprising several acts and omissions which viewed cumulatively, amounted to a (repudiatory) breach of the Malik term [breach of the Malik term is of its nature repudiatory – see paragraph 14(3) of Omilaju].  (If it was, there is no need for any separate consideration of a possible previous affirmation ….)?

 

            (5)       Did the employee resign in response (or partly in response) to that breach?”

 

4.11    In the Western Excavating case, Lord Denning referred to the necessity for an employee to ‘make up his mind’ soon after the conduct of which he complains; for, if he continues for any length of time without leaving, he will lose his right to treat himself as discharged’.  Issues have arisen in this context in relation to whether an employee can be such to have ‘waived the breach’ or affirmed the contract and therefore lost the ability to claim constructive dismissal.  Indeed, in many cases/textbooks, the terms are often used interchangeably.  Indeed, in many claims, even where there is a breach, the employee may choose to give an employer an opportunity to remedy it (see further W E Cox Toner (International) Ltd v Crook [1981] IRLR 443, which was recently referred to with approval in the case of Colomar Mari v Reuters Ltd [2015] UKEAT/0539/13 and more recently in Novakovic v Tesco Stores Ltd [2016] UKEAT/0315/15.)

 

            In (Colomar) Mari, HH Judge Richardson also referred with approval to the more recent decision of the Employment Appeal Tribunal in Hadji v St Luke’s Plymouth [2013] UKEAT/0095/02 – where it stated:-

 

                        “The essential principles are that:-

 

                        (i)         the employee must make up his/her mind whether or not resign soon after the conduct of which he complains.  If he does not do so he may be regarded as having elected to affirm the contract or as having lost his right to treat himself as dismissed.  (Western Excavating v Sharp ... as modified by W E Cox Toner ... and Cantor Fitzgerald International v Bird [2002];

 

                        (ii)        mere delay of itself, unaccompanied by express or implied affirmation of the contract, is not enough to constitute affirmation; but it is open to the Employment Tribunal to infer implied affirmation from long delay – see Cox Turner;

 

                        (iii)       if the employee calls on the employer to perform its obligations under the contract or otherwise indicates an intention to continue the contract, the EAT may conclude there has been an affirmation – see Fereday v South Staffordshire NHS Primary Care Trust [2011] UKEAT/0513;

 

                        (iv)       there is no fixed time-limit in which the employee must make up his mind; the issue of affirmation is one which subject to these principles the Employment Tribunal must decide on the facts; affirmation cases are fact sensitive – see Fereday.”

 

As seen in the recent decision in the case of Adjei-Frempong v Howard Frank Ltd [2015] UKEAT/0044/15, after again referring with approval to Cox Toner, the Employment Appeal Tribunal made it clear, in determining this issue, ‘context is everything’.  Further, the EAT referred with approval to the guidance of Langstaff P in the case of Chindove v William Morrisons Supermarket PLC [2013] UKEAT/0201/13 when he stated, inter alia:-

 

“25.     ... the matter is not one of time in isolation. The principle is whether the employee has demonstrated that he has made the choice. He will do so by conduct; generally by continuing to work in the job from which he need not, if he accepted the employer's repudiation as discharging him from his obligations, have had to do.

 

26.       He may affirm a continuation of the contract in other ways: by what he says, by what he does, by communications which show that he intends the contract to continue. But the issue is essentially one of conduct and not of time.  ...  But there is no automatic time; all depends upon the context. Part of that context is the employee's position. As Jacob LJ observed in the case of Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121, deciding to resign is for many, if not most, employees a serious matter. It will require them to give up a job which may provide them with their income, their families with support, and be a source of status to him in his community. His mortgage, his regular expenses, may depend upon it and his economic opportunities for work elsewhere may be slim. There may, on the other hand, be employees who are far less constrained, people who can quite easily obtain employment elsewhere, to whom those considerations do not apply with the same force. It would be entirely unsurprising if the first took much longer to decide on such a dramatic life change as leaving employment which had been occupied for some eight or nine or ten years than it would be in the latter case, particularly if the employment were of much shorter duration. In other words, it all depends upon the context and not upon any strict time test. ...  ”

 

The cases of (Colmar) Mari, Fereday, Hadji and Chindove, on their own particular facts, did raise issues whether, if a period of delay arises where an employee is off sick and in receipt of sick pay, can this be a relevant fact in relation to the issue of affirmation.  As seen in Harvey on Industrial Relations and Employment Law, Volume 1 Section D (534 - 538):-

 

“ ... there may still be cases where there is no affirmation in spite of receipt of sick pay but that will be as a matter of fact (as in Chindove) with no particular rule of thumb as to the length of an acceptable period.  On the other hand, a finding of affirmation must be seen as a distinct danger for the employee in this difficult position, with the illness absence being in itself no reliable excuse for an ever-lengthening delay, especially where there are other acts or omissions of the employer relevant to the question, in addition to continuing receipt of sick pay.”

 

4.12    In the case of Morrison v Amalgamated Transport & General Workers Union [1989] IRLR 361, the Northern Ireland Court of Appeal held in relation to the issue of contributory fault:-

 

            “(i)       the tribunal must take a broad common sense view of the situation;

 

            (ii)        that broad approach should not necessary be confined to a particular moment, not even the moment when the employment is terminated;

 

            (iii)       what has to be looked for in such a broad approach over a period is conduct on the part of the employee which is culpable or blameworthy or otherwise unreasonable; and

 

            (iv)       the employee’s culpability or unreasonable conduct must have contributed to or played a part in the dismissal.”

 

In Allders International Ltd v Parkins [1982] IRLR 68, it was emphasised that it is the employee’s conduct alone, which is relevant to the issue of whether the loss resulting from the dismissal should be reduced on grounds of contributory fault.

 

In a recent decision of the Employment Appeal Tribunal in the case of Steen v ASP Packaging Ltd [2013] UKEAT/0023, Langstaff P, confirmed it would be a rare case where there would be a 100% deduction for contributory fault.  He also confirmed it was necessary for the tribunal to focus on what the employee did or failed to do and not rely the employer’s view of what he had done but the employer’s assessment of how wrongful that act was; and if any such conduct, as identified by it, which it considers blameworthy, caused or contributed to the dismissal to any extent and, if so, to what extent the award should be reduced and to what extent it is just and equitable to reduce it.  If the identified conduct which the tribunal considers blameworthy did not to any extent cause or contribute to the dismissal there can be no reduction, no matter how blameworthy in other respects the tribunal might think the conduct to have been. 

 

4.13    As stated in Harvey on Industrial Relations and Employment Law, Volume I, Section D1, Paragraph 2663:-

 

“A finding of constructive dismissal is not inconsistent with a finding that the employee has by his own conduct, contributed to that dismissal … .”

 

In Morrison, the NI Court of Appeal confirmed that there was no ‘exceptional circumstances’, presumption or rule of law.  However Langstaff P in Firth Accountants Ltd v Law [2014] IRLR 510 acknowledged such a finding would be unusual, particularly in a case concerning a breach of the implied term of trust and confidence as there must have been no reasonable or proper cause for the employer’s conduct for there to be a breach of the implied term.

 

Following the decision in Polkey v AE Dayton Services Ltd [1987] IRLR 50 (‘Polkey’), a Polkey deduction is the term used in unfair dismissal cases to describe the reduction in any award for future loss to reflect the chance that the individual would have been dismissed fairly in any event.  It can take the form of a percentage reduction, or it may take the form of a tribunal making a finding the individual would have been dismissed fairly after a further period of employment or a combination of both (but not in the same period of loss - Zebrowski v Concentric Birmingham [2017] UKEAT/0245). 

 

It is sometimes considered that a ‘Polkey’ deduction has no part to play in a finding of unfair constructive dismissal; but this was strongly challenged by the respondent’s representative in the course of her submissions to the tribunal.  This view may have arisen due to the fact the factual situation, especially in the context of procedural failings in a claim of unfair dismissal, following dismissal by an employer, may more easily give rise to proper application of the principles/guidance relating to a Polkey deduction.  However, in the judgment of the tribunal, a Polkey deduction can, in certain factual circumstances, be applied to a claim of unfair constructive dismissal and it is not restricted to only claims of unfair dismissal (ie not constructive); albeit the issue remains not without some uncertainty.  In the case of Zebrowski v Concentric Birmingham [2017] UKEAT/0245, Laing J reviewed the authorities on this issue, in some detail (Paragraphs 35 – 41) and concludes that a Polkey deduction can be made in a case of unfair constructive dismissal but also states:-

 

“I respectfully agree with the principle that the courts should not create a complex structure of subsidiary rules from the open language of the statutory provisions.”

 

In Firth Accountants v Law [2016] UKEAT/0108, Laing J, again in a case of unfair constructive dismissal, accepted a Polkey deduction was able to be made; albeit on the particular facts.  She held that where there is significant overlap between the factors taken into account in making a Polkey deduction and when making a deduction for contributory conduct, the tribunal should consider expressly, whether in light of that overlap, it is just and equitable to make a finding of contributory conduct and, if so, what amount it should be – thereby avoiding the risk of penalising the claimant twice for the same conduct.  The question for the tribunal relates to what the particular employer would have done (not a hypothetical reasonable employer [see later]).

 

These dangers of overlap and difference of approach between Polkey deduction and deductions for contributory fault were also referred to by Langstaff P in Steen v ASP Packaging Ltd [2013] UKEAT/0023 when he stated:-

 

“That is because the focus in a Polkey decision is predictive, it is not historical as is the focus when establishing past contributory fault as a matter of fact.  Second, Polkey focuses upon what the employer would do if acting fairly.  Contributory fault is not concerned with the action of the employer but with the past actions of the employee.  A finding in respect of Polkey thus may be of little assistance in augmenting reasons given by a tribunal in respect of contributory deduction.”

 

Turning to the issue of a Polkey deduction and how it may be properly assessed, Elias J in Software 2000 Ltd v Andrews [2007] UKEAT/0533/06 gave some guidance:-

 

            “(1)      In assessing compensation the task of the tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice.  In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.

 

            (2)       If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely.  However, the tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself.  (He might, for example, have given evidence that he had intended to retire in the near future).

 

            (3)       However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.

 

            (4)       Whether that is the position is a matter of impression and judgment for the tribunal.  …  it must appreciate that a degree of uncertainty is an inevitable feature of the exercise.  The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.”

 

In Brinks Ireland Ltd v Hines [2013] NICA 32, Girvan LJ followed, with approval, the guidance in Software 2000 Ltd.

 

4.15    In Hill v Governing Body of Great Tey Primary School [UKEAT/0237/12/SM, Langstaff P held:-

 

“24.     A ‘Polkey deduction’ has these particular features.  First, the assessment of it is predictive: could the employer fairly have dismissed and, if so, what were the chances that the employer would have done so?  The chances may be at the extreme (certainty that it would have dismissed, or certainty it would not) though more usually will fall somewhere on a spectrum between these two extremes.  This is to recognise the uncertainties.  A tribunal is not called upon to decide the question on balance.  It is not answering the question what it would have done if it were the employer: it is assessing the chances of what another person (the actual employer) would have done. … .”

 

In Dev v Lloyds Asset Finance Division Ltd [2014] UKEAT/0281 Langstaff P also stated, when confirming the approach in Hill:-

 

“6.        A tribunal asked to consider a Polkey question must not ask what would have happened but rather what might have happened.  To ask what would have happened asks for a decision, effectively on the balance of probability, with a straight yes or not answer.  The second looks at the matter as one of assessment of chances within a range of 0% - 100%.  It is well established the latter is the correct approach … (see further Ministry of Justice v Parry [2013] ICR 311 and Hill  v  Governing Body of Great Tey Primary School … ).”

 

In Contract Bottling Ltd v Cave [2014] UKEAT/0100/14/DM, Langstaff P emphasised that Software 2000 Ltd decision has to be placed in a broader context than is apparent from the decision itself and a Polkey decision is part, but part only, of a complex assessment of the losses which arise as a result of a dismissal and a part only of the overall decision on the compensation; but also the assessment of a Polkey deduction is a prediction exercise about which there can be no absolute and scientific certainty.  Evidence is needed to inform the prediction but it is more a matter of art then a matter of science. 

 

In V v Hertfordshire CC [2015] UKEAT/0427/14/LA, Langstaff at Paragraph 23, referred to a series of decisions in relation to Polkey deductions confirming that they are not about probability but all about chance.

 

            In a series of decisions, such as Lambe v 186K Ltd [2005] ICR 307 CA, Morrisons Supermarket PLC v Kessab (UKEAT/0034/13), and more recently Lancaster and Duke Ltd v Wileman (UKEAT/0256/17), it has been confirmed there is no requirement that a Polkey reduction is limited to cases that might be characterised as “procedurally” unfair; and it is no longer necessary to draw a distinction in relation to such a reduction between “procedurally” and “substantive” unfair dismissals.

 

4.16    Generally a Polkey deduction is only applicable to the compensatory award not the basic award (apart from the limited circumstance where such a fair dismissal might have taken place virtually contemporaneously with the actual dismissal) – see Granchester Construction (Eastern) Ltd v Attrill [2012] UKEAT/0327/12/LA.

 

            Following the decision in Digital Equipment Co Ltd v Clements [1997] EWCA Civ 2899, and subsequent case law, the order in which adjustment to any compensatory award should be made has now been clarified, noting, in particular,:-

 

            (1)       calculate total losses suffered by the claimant’

 

            (2)       deduct any amount received from the employer such as payment in lieu of notice or ex gratia payment made to the employee as compensation for the dismissal;

 

            (3)       deduct earnings which have mitigated the claimant’s loss or a sum which reflects any failure by the claimant to mitigate his or her loss;

 

            (4)       a Polkey deduction;

 

            (5)       percentage increase or reduction to reflect a failure by employer or employee to comply with the LRA Code;

 

            (6)       percentage reduction for any contributory conduct on the part of the employee;

 

            (7)       grossing up; and

 

            (8)       applying the statutory cap (if relevant).

 

4.17    Article 156(2) of the 1996 Order, provides, in relation to the issues of the amount of a basic award and contribution on the part of the claimant:-

 

                                    “Where the tribunal considers any conduct of the complainant before the dismissal .... was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly.” 

 

Article 157(6) of the 1996 Order provides in relation to the issues of the amount of a compensatory award and contribution on the part of the claimant:-

 

            “Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.”

 

In the Northern Ireland Court of Appeal, in the case of GM McFall & Company              Ltd v Curran (1981) IRLR455, which would be normally binding on this tribunal, it was held that the general rule is that both the basic and compensatory awards should be reduced by the same amounts.  It should be noted, however, that the relevant legislation in Northern Ireland at the time of that decision was differently worded to that now seen in the 1996 Order.  In particular, the provisions relating to both a basic award and a compensatory award were in similar terms to that now seen in Article 157(6) of the 1996 Order and both provisions, at that time, therefore had reference to causation/contribution.

 

Now, Article 156(2) and Article 157(6) of the 1996 Order, as set out above, are in similar terms to those set out in Sections 122(2) and 123(6) of the Employment Rights Act 1996, which applies in Great Britain.  As has been made clear in a recent decision of Langstaff P in the case of Steen v ASP Packaging Ltd (2013) UKEAT/0023/13:-

 

“The two sections are subtly different.  The latter calls for a finding of causation.  Did the action which was mentioned in Section 123(6) cause or contribute to the dismissal to any extent?  That question does not have to be addressed in dealing with any reduction in respect of the basic award.  The only question posed there is whether it is just and equitable to reduce or further reduce the amount of the basic award to any extent.  Both sections involve the consideration of what is just and equitable to do.”                                                                                                              [Tribunal’s emphasis]

 

He also points out that, in applying the provisions of Section 123(6) if the conduct which it has identified and which it considers blameworthy did not cause or contribute to the dismissal to any extent, then there can be no reduction, pursuant to Section 123(6), no matter how blameworthy in other respects the tribunal might consider the conduct to have been.  If it did cause or contribute to the dismissal, then issues arise to be determined in relation to what extent the award should be reduced and to what extent it is just and equitable to reduce it.

 

Langstaff P emphasises that:-

 

“A separate questions arises in respect of Section 122(2) (the basic award) where the tribunal has to ask whether it is just and equitable to reduce the amount of the award to any extent.  It is very likely, but not inevitable, that what a tribunal concludes is a just and equitable basis for the reduction of the compensatory award will also have the same or a similar effect in respect of the basic award but it does not have to do so.”       

 

            So, in light of the foregoing, it would appear that, despite the change in the wording of the legislative provisions in Northern Ireland since the decision of the Court of Appeal in Northern Ireland, in GM McFall & Company Ltd, was decided, in most cases the same result would still be achieved; albeit it must be remembered that, in relation to the compensatory award, issues of causation/contribution have to be considered before any issues of reduction arise.  This, for the reasons set out above, is unlike the position in relation to the basic award.  However, as seen above, in most cases, the same reduction will continue to be applied to the basic and compensatory awards.

 

4.18    In a recent decision in the case of British Gas Trading Ltd v Price [2016] UKEAT/03267/15, Mrs Justice Simler (P) has recently reviewed the authorities in relation to the issue of contributory fault and the statutory provisions relating to reduction of the basic and compensatory award in such circumstances, pursuant to Section 122(2) and 123(6) of the Employment Rights (Northern Ireland) Order 1996 (see before re: 156(2) and 157(6) of the 1996 Order).

 

            After emphasising the Sections, focus on the conduct of the employee and not on the conduct of the employer she relied on the guidance provided by                    HHJ Peter Clark in an old case of Optikinetics Ltd v Whooley [1999] ICR 984 when he stated:-

 

            “(1)      Before making any finding of contribution the employee must be found guilty of culpable or blameworthy conduct.  The inquiry is directed solely to his conduct and not that of the employer or others.

 

            (2)       For the purposes of Section 123(6) the employee’s conduct must be known to the employer at the time of the dismissal (cƒ: the just and equitable provision under Section 123(1) and have been a cause of the dismissal.

 

            (3)       Once blameworthy conduct causing, in whole or in part, the dismissal has been found, the tribunal must reduce the compensatory award by such proportion as it considers just and equitable.  It must make a reduction ...

 

            (4)       A finding of contribution under Section 122(2) does not require a finding that the conduct is causatively linked to the dismissal.  It may be first discovered after dismissal.  The wording of Section 122(2) grants to the tribunal a wide discretion as to whether to make any, and if so what, reduction in the basic award on the ground of the employee’s conduct.

 

            (5)       After some uncertainty ... it is now clear that different proportionate reductions are permissible in relation to the basic and compensatory awards ...

 

            (6)       The appellate courts will rarely interfere with the employment tribunal’s assessment of the percentage reduction for contribution.”

 

(Paragraph 5 of the guidance requires to be considered further in light of the judgment seen in Steen above.)

 

On the facts of the Price case, the EAT found the tribunal in determining these issues of contributory fault and reduction of basic and/or contributory award, had wrongly focused on the conduct of the employer rather than the employee and had confused causation of the dismissal with causation of the unfairness.

 

It held:-

 

“The question for a tribunal was the statutory question – did the culpable conduct cause or contribute to any extent to the claimant’s dismissal?  That question involves a mixed question of law and fact, as the parties agree.  In many cases, the answer will be obvious once the facts are found taking a broad common sense approach.  There may be cases however, where an evaluative judgment must be made as to whether the conduct was a legal contributing or an effective cause; or to put it another way, whether dismissal was a direct and natural consequence of the conduct.  Depending on the circumstances, it is open to a tribunal to determine that it was not.”

 

In relation to Paragraph 3 of the guidance in Optikinetics, where it states a tribunal must make a reduction once blameworthy conduct causing, in whole or in part, the dismissal has been found, Simler J concluded that, having found conduct did cause or contribute to the dismissal and that a tribunal is required to consider reducing the amount of the compensatory award by such proportion as it considered ‘just and equitable’, having regard to that finding, it would be difficult to envisage circumstances, although she did not altogether rule them out, where it would not be just and equitable to reduce the award at all, when there was a finding the claimant’s blameworthy conduct caused or contributed to the dismissal. 

 

4.19    The amount of any reduction of the basic and/or compensatory award (see before), by a percentage on just and equitable grounds, can be as much as 100%; but such a sizeable reduction, although legally possible, is rare/unusual/exceptional (see Lemonious v The Church Commissions (2013) UKEAT/0253/12); and, if such a reduction is made by a tribunal, it must be justified by facts and reasons set out in the decision.  In any event, the factors which help to establish a particular percentage should be, even if briefly, identified (see further Steen v ASP Packaging (2013) UKEAT/0023/13).

 

 

4.20    The Labour Relations Agency Code of Practice (3^rd April 2011) on Disciplinary and Grievance Procedure provided for the repeal of the existing statutory workplace grievance procedures under the Employment (Northern Ireland) Order 2003 and the requirements of this Code are similar to the previous statutory obligations.  A failure to follow the Code does not, in itself, made a person or organisation liable to proceedings but an Industrial Tribunal are required to take into the Code when considering relevant cases.  With reference to grievances on Industrial Tribunal can take into account any unreasonable failure to follow the grievance aspects of the Code and any financially penalise the employer or the employee.

 

            In particular, insofar as relevant and material to these proceedings the Code states:-

 

“74.     A failure to follow the grievance procedure in those cases which a tribunal can hear may mean that the tribunal adjusts any award by a percentage of up to, or down by, 50 per cent to reflect that the provisions of the Code have not been reasonably followed.  Examples … the employee does not invoke an appeal.

 

 78.      Employers should arrange for a formal meeting to be held without unreasonable delay after a grievance is received.

 

…

 

 80.      Employers, employees and their companions should take reasonable steps to attend the meeting.

 

 81.      Employees should be allowed to explain their grievance and how they think it should be resolved.  Consideration should be given to adjourning the meeting for any further investigation that may be necessary.

 

 82.      Following the meeting, the employer should decide on what action, if any, to take.  The decision, and a full explanation of how the decision was reached, should be communicated to the employee, in writing, without unreasonable delay.  Where appropriate, the decision should set out what action the employer intends to take to resolve the grievance.  The employee should be informed that they can appeal if they feel that their grievance has not been satisfactorily resolved.

 

…

           

It is important, and in the interests of both employer and employee, to keep written records during the grievance process for future reference.  Records should include:

 

•              a copy of the written grievance;

 

•              the employer’s response;

 

•              action(s) taken;

 

•              the reasons for action(s) taken;

 

•              whether an appeal was lodged; and

 

•              the outcome of any appeal.”

 

Under Section 4(2) of the Employment Act (Northern Ireland) 2011 if the employer has failed to comply with the Code and the failure was unreasonable the tribunal may if it considers it just and equitable in all the circumstances, increase any award it makes to the employee by no more than 50%.

 

Under Section 4(3) of the 2011 Act, if an employee has failed to comply with the Code and the failure was unreasonable, the tribunal may if it considers it just and equitable reduce any award it makes to the employee by no more than 50%.

 

In Phoenix House Ltd v Stockman [2016] IRLR 848 the EAT, applying similar ACAS Code, emphasised that since Parliament had laid down a sanction for failure to comply with the Code, therefore clear words in the Code are required to give effect to the sanction.

 

 

5.1       Issues arose in this matter, which required to be considered by the tribunal, in relation to the interpretation of the terms of the contracts of employment of the claimants, and each of them, whether express or implied, and any changes/variations thereto. 

 

5.2       In relation to general principles of construction of the terms of a contract of employment, this refers, in particular, to the process by which a court/tribunal determines the meaning and legal effect of a contract.

 

            As stated in Chitty on Contracts – General Principles, Volume 1, 32^nd Edition:-

 

                        “13.042           Object of construction

 

                        The objective of all construction on the terms of a written agreement is to discover therefrom and from the available factual background the meaning of the agreement.  The principles which govern the construction of contracts are at the same at law and in equity, for simple contracts and for specialities.

 

                        13.04              Intention of the parties

 

                        The task of construing a written agreement has been said to be that of ascertaining the ‘common intention of the parties’ to the agreement.  This may be misleading since it is clear that the agreement must be interpreted objectively.  The question is not one or other of the parties meant or understood by the words used but rather what a reasonable person in the position of the parties would have understood the words to mean.”

 

                        13.086           

 

                        “Another principle of construction is that a deed or other instrument shall be construed more strongly against the grantor or maker thereof.  This rule is often misinter preted.  It is only to be applied to remove (and not to create) a doubt or ambiguity and as a last resort where the issue cannot otherwise be resolved by the application of ordinary principles of construction ….”

 

5.3       In Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] UKHL 28, Lord Hoffman said:-

 

                        “Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. ……  The law excludes from the admissible background the previous negotiations of the parties and their declarations of subjective intent …”

 

            Lord Hoffman also stated:-

 

                        “The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using those words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meanings of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax.”

 

                        “The ‘rule’ that words should be given their ‘national and ordinary meaning’ reflects the common sense proposition that we do not accept that people have made linguistic mistakes, particularly in formal documents.  On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties or intention which they plainly could not have.”

 

 

            Lord Hoffman also referred to what Lord Diplock had said in Antaios Compania Naviera SA v Salen Redierna AB [1985] AC 191, at Page 201:-

 

                        “If detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business common sense, it must be made to yield to business common sense.”

 

            (followed in Anderson and Others, Phillips and Others v London Fire and Emergency Planning Authority [2013] EWCA Civ 321).

 

5.4       Subsequent case law, following the dicta of Lord Hoffman, as referred to above, allowed Courts to move away from the importance of “language” in interpretation of contracts and to be able to adopt an objective approach with background knowledge of the agreement.  Some recent decisions of the Supreme Court have further considered the dicta of Lord Hoffman in investors.

 

            In Arnold v Britton [2015] AC 1619, Lord Neuberger, when emphasising the relevant factors in interpreting a written contract, again gave importance to the “primacy of language” (17-23 of his opinion) – interpreting contracts in accordance with the ordinary and natural meaning of words.  “Reliance placed in some cases on commercial common sense and surrounding circumstances …. should not be invoked to under value the importance of the language of the provision which is to be construed.  The exercise of interpreting a provision involves identifying what the parties meant through the eyes of a reasonable a member, and save, perhaps in a very unusual case, that meaning is most obviously to be gleaned from the language of the provision ….” 

 

            (2)       … when it comes to considering the centrally relevant words to be interpreted, I accept the less than they are, or to put it another way, the worse their drafting, the more ready the Court can properly be to depart from their national meaning …..  However that does not justify the Court embarking on as an exercise of searching for, let alone constructing drafting infelicities in order to facilitate a departure from the natural meaning …..

 

                        The third point I should mention is that commercial common sense is not to be invoked retrospectively.  The mere fact that contractual arrangement, if interpreted according to its natural language has worked out badly or even disastrously, for one of the parties is not a reason for departing from the natural language.  Commercial common sense is only relevant to the extent of that matters would or could have been perceived by all parties, or by reasonable people in the position of the parties, as at the date when the contract was made ….. 

 

                        ….. a Court should be very slow to object the natural meaning of a provision as correct is only because it appears to be very on prudent term for one of the parties to have agreed, even ignoring the benefit of wisdom of hindsight ….

 

                        …. When interpreting a contractual provision, one can only take into account facts or circumstances which existed at the time the contract was made and which were known or reasonably available to all parties ……”

 

            But it is also apparent from recent case law that, although there still requires to be an emphasis on the primacy of language it may not in all cases provide the answer and, following Lord Hoffman’s dicta in Investors, the meaning of words used may yield to context, for example; but it may be difficult to know where the balance should be struck (See Savills (UK) v Blacker [2017] EWCA Civ 68). 

 

            In the recent decision of the Supreme Court, in the case of Wood v Capita Insurances Services Ltd [2017] UKSC 24 Lord Hodge recognised that ‘the recent history of the common law of contractual interpretation is one of continuity rather than change’ but also recognised some of the recent decisions of the Supreme Court, in relation to interpretation of commercial contracts, may have gone “further” than the Hoffman dicta in Investors Compensation Scheme Ltd.  However, again, it has to be remembered that these are decisions about complex commercial contracts not less complex employment contracts, as in the present proceedings; however the general principles to be derived from the recent case law should be the same whatever the nature of the contract, in the opinion of the tribunal, and provide appropriate and relevant guidance for the interpretation of such contracts.

 

            In Wood  v  Capita, Lord Hodge approved the approach to construction set out in Rainy Sky SA v Kookman Bank [2011] UKSC 50 at Paragraph 21, when Lord Clarke said:-

 

                        “The language used by the parties will often have more than one potential meaning.  I would accept … that the exercise is essentially one unitary exercise in which the court must consider the language used and ascertain what a reasonable person, that is a person who has all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract, would have understood the contract to have meant. In doing so, the court must have regard to all the relevant surrounding circumstances. If there are two possible constructions, the court is entitled to prefer the construction which is consistent with business common sense and to reject the other.”

 

            It should be noted in Arnold, the approach in Rainy Sky was followed and, in the opinion of Lord Hodge Rainy Sky and Arnold were saying the same thing on the approach to contractual interpretations.

 

            In Paragraph 12 Lord Hodge, approving Lord Mance’s judgment in In re Sigma Finance Corps [2010] 1 AER 571, concluded:-

 

                        ”12      To my mind once one has read the language in dispute and the relevant parts of the contract that provide its context, it does not matter whether the more detailed analysis commenced with the factual background and the implications of rival constructions or a close examination of the relevant language in the contract, so long as the court balances the indications given by each.”

 

            Lord Hodge at Paragraph 13 of his opinion also stated:-

 

                        “13      Textualism and contextualism are not conflicting paradigms in a battle for exclusive occupation of the field of contractual interpretation.  Rather the lawyer and the judge, when interpreting any contract, can use them as tools to ascertain the meaning of the language which the parties have chosen to express their agreement.  The extent to which each tool will assist the court in its task will vary according to the circumstances of the particular agreement or agreements.  Some agreements may be successfully interpreted principally by textual analysis, for example because of their sophistication and complexity and because they have been negotiated and prepared with the assistance of skilled professionals.  The correct interpretation of other contracts may be achieved by a greater emphasis on the factual matrix, for example, because of their informality, brevity or the absence of skilled professional assistance … .”

 

            Despite the differences of approach in light of the foregoing, it might be considered the current approach of the courts is to give more weight to the natural and advisory meaning of words “primacy of language”; at least where the parties are commercially experienced and have access to skilled legal advice.

 

            (See further recent discussions in the County Appeal in Northern Ireland in case of Car Park Services Ltd v Bywater Capital (Winetavern) Ltd [2018] NICA 22, with reference to the data of Lord Hoffman in Investors and how it has been interpreted in Rainey Sky by the Supreme Court, but without reference to the recent decisions in Arnold and Wood; it was also a case on very different facts to the present proceedings).

 

5.5       In the course of the hearing and submissions, the claimants’ representative contended that, if the tribunal did not interpret the express terms of the contract of employment, in favour of the claimants’ interpretation, the claimants, in the alternative, relied on the implication of terms into the contract of employment, in accordance with the interpretation of the claimants, by reference to ‘custom and practice’.

 

            In a recent decision, Underhill LJ in the case of Park Cakes Ltd v Shamba and Others [2013] EWCA Civ 974, has reviewed the authorities in relation to these matters, albeit it must be recognised however that the particular facts of the case, relating to issues about enhanced redundancy, were very different to the facts of the present proceedings (Park Cakes has been followed with approval by the Court of Session in Fisher v Applied Drilling Technology International Ltd [2016] Scot CS CSOH 108).

 

            In Park Cakes Underhill LJ stated:-

 

                        “34 …. But what Leverson LJ makes clear in Garrett is that the essential object is to ascertain what the parties must have, a must be taken to have understood from each other’s conduct and words, applying ordinary contractual principles: the terminology of “custom and practice” should not be allowed to obscure that enquiry.

 

35  Taking that approach, … the essential question in a case of the present kind must be whether, by his conduct in making available a particular benefit to employees over a period, in the context of all the surrounding circumstances, the employer has evinced to the relevant employees an intention that they should enjoy that benefit as of right. If so, the benefit forms part of the remuneration which is offered to the employee for his work (or, perhaps more accurately in most cases, his willingness to work), and the employee works on that basis. (The analysis by reference to offer and acceptance may seem rather artificial, as it sometimes does in this field; but it was not argued before us that if the employer had indeed sufficiently conveyed an intention to afford the benefits claimed as a matter of contract he would not thereby be bound.) It follows that the focus must be on what the employer has communicated to the employees. What he may have personally understood or intended is irrelevant except to the extent that the employees are, or should reasonably have been, aware of it.”

 

            Underhill LJ then listed some typically relevant factors, which would also appear to be relevant, adopted appropriately to the present proceedings; albeit he was concerned with issues of enhanced redundancy, such as:-

 

“(a)      On how many occasions, and over how long a period, the benefits in question have been paid.  …

 

(b)      Whether the benefits are always the same  …

 

(c)       The extent to which the enhanced benefits are publicised generally.  …

 

(d)      How the terms are described.  

 

(e)       What is said in the express contract. As a matter of ordinary contractual principles, no term should be implied, whether by custom or otherwise, which is inconsistent with the express terms of the contract, at least unless an intention to vary can be understood.

 

(f)        Equivocalness. The burden of establishing that a practice has become contractual is on the employee, and he will not be able to discharge it if the employer's practice is, viewed objectively, equally explicable on the basis that it is pursued as a matter of discretion rather than legal obligation. This is the point made by Elias J at para. 22 of his judgment in Solectron.”

 

In Solectron Scotland Ltd v Roper [2004] IRLR 4, Elias J also stated the practice mustbe “reasonable notorious and certain” and, at paragraph 21 in his judgment, albeit remembering this was also an enhanced redundancy case:-

 

“  …  A custom or established practice applied with sufficient regularity may eventually become the source of an implied contractual term.  That occurs where the point is reached when the courts are able to infer from the regular application of the practice that the parties must be taken to have accepted that the practice has crystallised into contractual rights.”

 

            In CSC Computer Sciences v McAlinden [2013] EWCA Civ 1435 Underhill LJ emphasised, again, a tribunal should focus less on the language of “custom and practice” and more on the essential question of what the employees reasonably will have understood from the employer’s conduct and words, applying ordinary contractual principles.

 

            In Fisher, Lord Malcolm, following the decision in the Court of Appeal in Marks & Spencer PLc  v  BNP Paribas Security Services Trust Co (Jersey) Ltd [2015] 3 WLR 1843, suggested at Paragraph 12 of his judgment on the facts of Fisher:-

 

“The pursuer needs to show that the proposed implied term was so obvious that it went without saying : in other words that it was clearly the presumed intention of both parties.”

 

5.6       In this matter, as confirmed in the course of submissions, both representatives sought to strongly rely on the ‘credibility’ of the witnesses, called by each of them.

 

            Gillen J in Thornton v NIHE [2010] NIQB 4 stated:-

 

“Credibility of a witness embraces not only the concept of his truthfulness, ie whether the evidence of the witness is to be believed but also the objective reliability of the witness [that is] his ability to observe or remember facts and events about which the witness is giving evidence.

 

In a recent decision in the case of ES (a minor) by Rachel Ann Savage, her mother and next friend  v  Emma Savage and Others [2017] NIQB 56 (a civil case) Stephens J in Thornton, namely:-

 

            “(a)      the inherent probability or improbability of representation of fact;

 

(b)      the presence of independent evidence tending to corroborate or undermine any given statement of fact;

 

(c)      the presence of contemporaneous records;

 

(d)      the demeanour of witnesses, for example, does he equivocate in cross-examination;

 

(e)      the frailty of the population at large in accurately recollecting and describing events in the distant past;

 

(f)       does the witness take refuge in wild speculation or uncorroborated allegations of fabrication;

 

(g)      does the witness have a motive for misleading the court; and

 

(h)      weighing up one witness against another.”

 

In R v G [1998] Crim LR 483, the Court of Appeal in England and Wales said that:-

 

“a person’s credibility is not a seamless robe, any more than in their reliability.”

 

A tribunal is entitled, if appropriate, to take a different view as to the credibility or the reliability of the evidence of a witness in relation to different issues (see further                 R v H [2016] NICA 41).

 

5.7       Awards of compensation, pursuant to the Disability Discrimination Act 1995, as amended, provide that awards may be made not just against employers, but also individual respondents, where named in the claim form, such as the second respondent in the present proceedings.  In light of the decision in the case of London Borough of Hackney v Sivanandan [2013] EWCA Civ 22, it was held, if a tribunal is making an award of compensation against such respondents, pursuant to the said Act, where the same indivisible damage is done to a discrimination claimant by two or more respondents, who are either jointly liable for the same act or have separately contributed to the same damage each is jointly and severally liable to the claimant for the same damage.  In such circumstances it is not possible for the tribunal to apportion an award between contributing respondents, pursuant to the Civil Liability (Contribution) Act 1978, which applies in Northern Ireland.  However, where the injury caused by different acts of discrimination is “divisible”, a tribunal can and should apportion to each discriminator responsible for the party the damage caused by him (see Underhill J in the EAT, approved and followed by the County Appeal).  In the course of submissions to the tribunal, it was agreed by the representatives that, if the tribunal was making any such award of compensation against the respondents, pursuant to the said Act, any such award should be made against the respondents, jointly and severally, and it was therefore not necessary for the tribunal to consider further any such issues relating to “divisible/indivisible”/joint and several/apportionment.

 

5.8       In this matter the second claimant, pursuant to his claim under the Disability Discrimination Act 1995, as amended, has also made a claim for personal injuries and injury to feelings and issues arose in relation to whether the personal injury (psychiatric illness) suffered by the second claimant arose from a number of causes and, if so, whether some constituted unlawful discrimination for which the respondents could be liable but some of which did not; and in such circumstances an apportionment exercise was relevant and required to be applied.

 

A recent decision in the Court of Appeal of England and Wales, in the case of BAE Systems (Operations) Ltd v Konczak [2017] EWCA Civ 1188 has reviewed the case law in this case. 

 

Underhill lJ approved the decision of the EAT in Thaine v LSE [2010] UKEAT0144/10, were Keith J stated:-

 

                        “Where an employee’s psychiatric ill health has been caused by a combination of factors, some of which amount to unlawful discrimination for which the employer is liable, its open to an Employment Tribunal to discount the employee’s compensation by such percentage as reflects its apportionment of that responsibility”.

 

            After reviewing the case law Underhill LJ concluded at paragraph 71 of his judgment:-

 

                        “What is therefore required in any case of this character is that the tribunal should try to identify a rational basis on which the harm suffered can be apportioned between a part carried by the employer’s wrong and a part which is not so caused.  I would emphasise, because the distinction is easily overlooked, that the exercise is concerned not with the durability of the causative contribution of the harm.  In other words, the question is whether the tribunal can identify, however broadly, a particular part of the suffering which is due to the wrong; not whether it can assess the degree to which the wrong caused the harm.

 

            In the circumstances, in light of the tribunal’s decision, it was not necessary to consider this issue further.

 

5.9       In relation to injury to feelings, in the case of De Souza v Vinci Construction Ltd [2017] EWCA Civ 879, the Court of Appeal has recently confirmed that the 10% uplift provided for in Simmons v Castle [2012] EWCA Civ 1288 should apply to an award for injury to feelings with the consequence the ‘Vento Bands’ are as follows:-

 

            (i)         upper band               £19,800 to £33,000;

 

            (ii)        middle band              £  6,600 to £19,800; and

 

            (iii)       lower band                £     600 to £  6,600

 

It was not disputed these Vento bands, as amended, should also apply in Northern Ireland.

 

In De Souza the Court of Appeal invited the Presidents of the Employment Tribunals in Great Britain to issue fresh guidance, adjusting the Vento figures for inflation and to incorporate the Simmons uplift.  No such guidance has been issued in Northern Ireland.

 

There was no dispute, if the tribunal was to award aggravated damages, as claimed by the second claimant, they are an aspect of injury to feelings, and are awarded only on the basis of the extent the aggravating features have increased the impact of the discriminatory action to the claimant and thus his injury to feelings, and are part of the award for injury to feelings.  (See McConnell v Police Authority for NI [1997] NI 244.)  They are compensatory and not punitive and can be awarded were the employer has acted in a ‘highhanded, malicious, insulting or oppressive manner in committing the act of discrimination’.  (Alexander v Home Office [1988] ICR 685).  The aggravating act does not have to be discriminatory.  Examples of conduct which have led to such an award have included attempting to cover up a trivialised wrong, failing to investigate complaints or take them seriously.  Post dismissal conduct, whether in the course of the proceedings or otherwise may give rise to aggravated changes.  (See Zaiwalla and Co v Walia ([2002] IRIR 697), Bungay and Another v Saini [2010] UKEAT/0331).  Tribunals have to be aware of the risk of double recovery and to ensure the overall award of injury to feelings and aggravated damages is proportionate to the totality of the suffering caused to the claimant.  In HM Land Registry v McGlue [2013] EQLR 701, the EAT reviewed the relevant case law and held, when considering such a claim, the tribunal has to look first as to whether, objectively viewed, the conduct is capable of being aggravating, that is aggravating in the sense of injustice which the individual feels and injuring their feelings further.  It further held such an award may be made where the distress caused by the act of discrimination has been made worse:-

           

            (a)       by having done in an exceptionally upsetting way eg in a high handed, malicious, insulting or oppressive way;

 

            (b)       by motive, conduct based on prejudice, animosity, spite or vindictiveness is likely to cause more distress provided the claimant is aware of the motive;

 

            (c)        by subsequent conduct: for example, where a case is conducted at trial in an unnecessary offensive manner, or a serious complaint is not taken seriously, or there has been a failure to apologise.

 

6.1       In light of the facts as found by the tribunal and after applying the legislative provisions and guidance set out in the legal authorities referred to in the previous paragraphs of this decision, together with the submissions of the representatives, the tribunal reached the following conclusions, as set out in the following paragraphs.

 

6.2       As part of the case management/interlocutory process, each of the claimants produced, in evidence, a schedule of loss for the purposes of these proceedings.  The figures set out therein were agreed, during the course of the hearing, subject to issues of liability and were relied upon by the tribunal, as necessary and appropriate, for the purposes of the tribunal’s decision.

 

6.3       Before determining Mr Sheridan’s claim of direct disability discrimination and/or failure of the duty to make reasonable adjustments, pursuant to the Disability Discrimination Act 1995, as amended, the tribunal had to be satisfied Mr Sheridan was a disabled person, within the terms of the said Act, at the relevant time and, in particular, had a mental impairment which had a substantial and long term adverse effect on his ability to carry out normal day to day activities.  On the facts of this case, this was a difficult and complex task for the tribunal, faced with the conflicting medical evidence but also the fact that Mr Sheridan, for the period prior to the meeting on 5 August 2016, the date relied upon by him for his claims pursuant to the said Act, was deliberately “hiding and/or covering up” his mental health issues to the outside world, and, in particular, his employer and even, to an extent, in the tribunal’s view, his general practitioner, for the reasons stated previously. 

 

            It was not necessary for the tribunal to consider the extent of Mr Sheridan’s mental health issues prior to the beginning of January 2016.  The tribunal was satisfied that, throughout 2016 up to the date of the meeting on 5 August 2016, the claimant’s mental health issues were deteriorating and that, increasingly during this time, he was suffering from anxiety and depression with symptoms of lack of energy, and concentration.  Although he was able to appear to properly work, with the assistance of Mrs Sheridan, this was, in essence, a front for the true situation.  Given Mr Sheridan’s apparent ability to be able to work in such circumstances, the tribunal could readily understand Dr Loughry’s opinion that Mr Sheridan did not satisfy the criteria for impairment of concentration, even after taking account of the medication which had been prescribed; but, in the view of the tribunal, due to Mr Sheridan's successful covering up of his condition from his employment and also, on occasion his general practitioner, the full picture was not seen or known at the relevant time when he in fact was unable to carry out his normal day to day activities at that time, despite appearances to the contrary.

 

6.4       Not without some considerable hesitation and after consideration of the relevant case law and the authorities previously referred to, the tribunal concluded Mr Sheridan, at the date of the meeting on 5 August 2016 was suffering from a mental impairment, namely depression, and which had a substantial and long term adverse effect on his ability to carry out normal day to day activities.  In doing so, the tribunal took account of the guidance in SCA Packaging Limited that it was likely (ie could well happen) the impairment would last at least 12 months (see also further paragraphs 6.7 of this decision.)

 

6.5       However, in the event, such a finding by the tribunal was not of any assistance to Mr Sheridan in his claim of direct disability discrimination in relation to the said decision made at the meeting on 5 August 2016, to change his location from home based to office based.  As Mr Sheridan accepted, neither Peninsula, nor Mr Stern‑Gillet had relevant knowledge of any such disability and/or that he was a disabled person at the relevant time.  Therefore the tribunal could make no finding of less favourable treatment on the grounds of the disability of Mr Sheridan.  In this context it also has to be noted that Mr Sheridan objected to the change from home based to office based because of security concerns and not because of any disability.  It also must be noted, in relation to  Mr Stern-Gillet’s decision, the said change business reasons, however badly implemented (see later) and he treated Mrs Sheridan, and indeed Mr MacLean both who were non-disabled, in exactly the same way. 

 

6.6       In light of the foregoing, in the circumstances, the tribunal does not accept that Mr Sheridan was directly discriminated against, pursuant to the Disability Discrimination Act 1995, as amended and the said claim is dismissed.

 

6.7       However, the tribunal is satisfied that, in the period from the meeting of 5 August 2016 until the date of resignation on 19 October 2016, even if Peninsula did not immediately have the relevant knowledge of Mr Sheridan’s disability, it did so, at least, from receipt of Professor Addley’s report which had been, properly arranged by Peninsula, when Mr Sheridan had raised a potential issue of disability for the first time in his consultation with Ms Nicholson, the occupational health adviser.  Professor Addley, who is a consultant in occupational medicine and a person who has particular experience in such matters, found, in his report, a history of anxiety and depression which it is noted he found went back some years.  In particular, Professor Addley found, inter alia, there was an underlying medical condition namely of reactive anxiety and depression with features of post traumatic stress disorder.  He also found that the Disability Discrimination Act was likely to cover these conditions.  In this context, the tribunal notes the similarity of that conclusion with that of Dr Kelly, albeit his report was for the purposes of this hearing and with an element of hindsight, where he found moderate to severe depressive disorder with features of PTSD.  It is also consistent with Dr Kirk’s report of 22 August 2017 of overarching symptoms of anxiety and depression from August 2016.  Dr Loughry did not dispute that the diagnosis, as found by Dr Kelly, was certainly an arguable diagnosis and he confirmed he agreed that Mr Sheridan’s symptoms had been downhill since August 2016.  Indeed, the differences between the medical experts illustrate the issues highlighted, as seen previously by the comments of Field J in the Mark Noble case and those of HH Judge Cockcroft.  In the tribunal’s view, this finding by Professor Addley in his report in October 2016, but also that of Dr Kelly and Dr Kirk made for the purposes of these proceedings, confirms the tribunal’s opinion, as set out previously, that the claimant was in fact a disabled person at the meeting in August 2016 albeit this was not known by either Peninsula or Mr Stern-Gillet at the relevant time.  However, following receipt of Professor Addley’s report, in the tribunal’s view, Mr Sheridan was a disabled person, Peninsula had the relevant knowledge; and therefore the duty of Peninsula to make reasonable adjustments in relation to this change of location from home based to office based was engaged. 

 

6.8       In his report Professor Addley recommended, as a reasonable adjustment to the change of location, a mediation process.  Despite having received this report from Professor Addley before he issued his interim decision, Mr Cater issued the interim decision confirming the decision to make Mr Sheridan office based rather than home based.  It is correct, in this interim report, Mr Cater offered mediation but, in the tribunal’s view, if the mediation process was to be a meaningful and proper reasonable adjustment, Mr Cater should not have issued the interim decision until the mediation process, the reasonable adjustment recommended by Professor Addley, had been implemented.  To have offered mediation, in such circumstances, having already confirmed the decision, was a meaningless gesture and a failure to comply with the duty to make reasonable adjustments.

 

6.9       Given the failure by Peninsula, in the circumstances, to comply with the duty to make reasonable adjustments, pursuant to the Disability Discrimination Act 1995, as amended, the tribunal is satisfied that Mr Sheridan, upon receipt of the interim report from Mr Cater was very upset and suffered injury to his feelings.  However, as he immediately resigned, there was not any continuing failure by Peninsula to comply with the said duty and for which Mr Sheridan could be properly compensated.  The injury to his feelings was therefore limited in the circumstances.  The tribunal makes an award of compensation for injury to his feelings in the sum of £2,000.00 together with interest, as appropriate to be paid by Peninsula to Mr Sheridan.  In the circumstances, no issue of aggravated damages arises.

 

6.10    In relation to the claims by Mr and Mrs Sheridan, and each of them, of unfair constructive dismissal, there was considerable dispute between the claimants and the respondents as to the proper interpretation of the contract of employment of both Mr and Mrs Sheridan including, in particular, the contention of Mr Stern-Gillet and Mr Cater, in evidence, that Peninsula were entitled, under the terms of the respective contracts of employment mobility clause, to require Mr and Mrs Sheridan to move from home based to office based and to do so was therefore not in breach of their contracts of employment.  In particular, neither Mr Stern-Gillet or Mr Cater saw any difference or significance, for the purpose of interpretation of the said contracts of employment between the use of the words “normally from your home” contained under place of work and “employed at one particular location …. prepared, whenever applicable, to work at the other locations” contained in the mobility clause in essence, both considered the words “from” and “at” were interchangeable in the circumstances and/or meant the same thing. 

 

            As seen in the authorities referred to in paragraph 5 of this decision issues of interpretation of contracts, in general and not only contracts of employment, continue to cause much dispute and in particular whether the Hoffman dicta as seen in the Investors case should be followed – namely that “the meaning of words as a matter of dictionaries and grammar but the meaning of a document is what the words “would reasonably been understood to mean” against the relevant background.  Such background could allow the Court to choose between possible meanings and has led courts frequently to search for commercial common sense.  As seen in the recent decisions of the Supreme Court in Arnold and Capita, there has been an apparent retreat from the Hoffman dicta although neither decision overruled or criticised Lord Hoffman’s dicta.  Lord Neuberger in Arnold suggested, save in a very unusual case, the meaning is to be gleaned from the language used and to identify what the parties agreed not what the courts thinks they should have agreed.  This does not make the task of the tribunal any easier and is not without difficulty, when the particular words at the centre of this dispute, as referred to above are considered. 

 

            The tribunal concluded, not without some hesitation, that there had to be some difference between the use of the word “from” and “at” in the relevant sections of the contract of employment; and, giving the words their normal dictionary meaning, the mobility clause, in the opinion of the tribunal, did not allow Peninsula to require Mr and Mrs Sheridan, pursuant to that clause, to move from home based to office based.  To require them to do so was therefore a breach of contract.  If one followed the Hoffman dicta, the tribunal was satisfied, if the relevant background was taken into account of a home based workforce in contrast to an office based workforce, it was even clearer that the mobility clause was not effective in the circumstances to achieve the desired change, pursuant to the terms of contract.  Where a person was home based, the mobility clause, as interpreted above, could give some flexibility in relation to where a home based employee (ie having worked from home) might be required to attend at different locations (ie different tribunals); but not to move from his/her home base.

 

            Even if the tribunal is wrong, the tribunal is satisfied that the interpretation of Mr and Mrs Sheridan is correct and that to require them to move from home based to office base was in breach of their contract on the basis of “custom and practice” (see further the decisions referred to in paragraph 5.5 of this decision).  The tribunal is satisfied that the longstanding custom and practice was that Mr and Mrs Sheridan, along with many other employees of Peninsula carrying out similar roles, were home based and not office based; and that under the terms of their contracts of employment could not be required to be office based.  Indeed, it was on this basis that Mr Sheridan received the assurances he would not become office based, whenever the new regional Belfast office was proposed and then subsequently opened. 

 

6.11    The tribunal, recognising that to require Mr and Mrs Sheridan to move from home based to office based, was in breach of contract also acknowledges that Peninsula had good business reasons, as explained by Mr Stern-Gillet and Mr Cater for wanting to change home based workers of Peninsula into office based workers.  Indeed, it accepts that the commuting distance from Donaghadee to the office in Belfast was a normal commuting distance for many employees in Northern Ireland.  However, to make that change without proper notice of the change, appropriate period of consultation and provide for its implementation was, in the opinion of the tribunal, a fundamental breach of contract.  This was a major change to the way of working for Mr and Mrs Sheridan and therefore required proper consultation and notice, period of time to implement the change.  None of which was provided by Peninsula.  Indeed, as far as Mr Stern-Gillet, at the meeting in August 2016, was concerned the decision was made and that was the end of the matter and it was required to take place in a very short period of time.  In the tribunal’s view it was these failures that made the breach of contract by Peninsula fundamental and/or sufficiently important to justify Mr and Mrs Sheridan in resigning.

 

6.12    Even if the tribunal is wrong that there was no such breach of contract, as set out in the previous sub-paragraphs, the tribunal would have been satisfied that Peninsula, by failing to give proper notice, and an appropriate period of consultation and time to implement the change, was in breach of the implied term of trust and confidence – the Malik term – their failures were calculated to or likely to destroy or seriously damage the relationship of trust and confidence between an employer and employee. 

 

6.13    The tribunal has no doubt that a breach of the express term and/or the implied term was one of the factors relied on by Mr and Mrs Sheridan when resigning their employment on 19 October 2016 with immediate effect, as was made clear in their letters of resignation (see further Wright v North Ayshire Council and other decisions set out at paragraph 4.8 of this decision).

 

            Mr Stern-Gillet informed Mr and Mrs Sheridan of his decision at the meeting on 5 August 2016.  It is apparent from subsequent correspondent and, indeed the grievance process insofar as it had gone prior to the resignation, that Mr and Mrs Sheridan were not affirming or waiving the breaches and there was therefore no issue of delay on their part.  Properly, in accordance with good employment practice, they had given Peninsula an opportunity to remedy the breaches before resigning; but, regretfully, it had not done so, with Mr Cater, in his interim decision, confirming the original decision made by Mr Stern-Gillet.  In the circumstances, in light of the foregoing, the tribunal also does not consider that any issue of “last straw” or the reactivation of an earlier fundamental breach, which had been affirmed and/or not acted upon, requires to be considered further in this decision (see further the decisions in paragraphs 4.10-11 of this decision).

 

6.14    In light of the foregoing, the tribunal is satisfied Mr and Mrs Sheridan were constructively dismissed and the said dismissal was unfair in the circumstances, having regard, in particular, to the failure of Peninsula to give appropriate notice of the change from home based to office based, an appropriate period of consultation and an appropriate period to implement the said change.  In this context, it has to be noted, as stated previously, that it was not a term of Mr Sheridan’s contract of employment that he was home based because of his security concerns. 

 

            The tribunal is not satisfied, on the facts as found by the tribunal, that any actions by Mr and Mrs Sheridan contributed to the said dismissals in the circumstances.  If the tribunal is wrong, in relation to this issue of contributory fault, the tribunal is satisfied it would not be appropriate to make any such deduction, in light of tribunal’s decision to apply a Polkey deduction, as set out later in this decision.  (See Firth Accountants v Law).

 

6.15    The tribunal having regard to the case law referred to in paragraph 4.13 of this decision, is satisfied, on the facts of the case as found by the tribunal, that, when assessing compensation arising out of the said unfair constructive dismissal, a Polkey deduction is able to be applied to a case of unfair constructive dismissal and it is appropriate in this matter.  The tribunal considers that, if the appropriate notice, appropriate period of consultation and appropriate period of implementation had been given by Peninsula, a fair dismissal might have been able to be established fair.  Doing the best that he can and recognising it is a predictive exercise and the tribunal requires to consider what might have happened, the tribunal is of the view, taking account of the above factors, that the change could have been fairly introduced early in the New Year of 2017, which would have given, in the circumstances, sufficient notice, time for consultation and implementation of the change.  In light of the foregoing, given that Mr and Mrs Sheridan were informed of the change at the meeting on 5 August 2016, the tribunal has concluded the appropriate loss of earnings should be from 11 October 2016 to 19 January 2017 (12 weeks) in the circumstances.

 

6.16    Although the tribunal had concerns about the grievance process, as referred to previously, it was not satisfied there should be any uplift for failure to comply with the Labour Relations Code of Practice, given the resignation of Mr and Mrs Sheridan before the said process was concluded and/or their failure to appeal the decision.

 

7.1       In light of the foregoing, the tribunal assessed compensation to be awarded to the claimant as follows:

 

            (a)       Mr Sheridan

 

                        (i)         Injury to Feelings -                                     £2,000.00

                                    Interest from 19 October 2016

                                    To 31 October 2018

                                    At 8% (742 days)                                          £   325.56

                                                                                                            £2,325.26

 

                        (ii)        Unfair Constructive Dismissal

 

                                    A.        Basic Award -                                  £8,250.00

                                                (1.5 x 11 years x £500.00)

 

                                    B.        Compensatory Award

 

                                                (i)         12 weeks at                          

                                                            £614.00 per week -              £7,368.00

                                                            From 19 October 2016 –

                                                            11 January 2017

 

                                                (ii)        Loss of Statutory Rights     £   500.00

 

                                                                                                            £7,868.00

 

                                    Total Compensation (A+B) -                    £16,118.00

 

            (b)       Mrs Sheridan

 

                        (i)         Unfair Constructive Dismissal

 

                                    A.        Basic Award -                                  £6,750.00

                                                (1.5 x 9 years x £500.00)

 

                                    B.        Compensatory Award

 

                                                (i)         12 weeks at                          

                                                            £459.00 per week -              £5,508.00

                                                            From 19 October 2016 –

                                                            11 January 2017

 

                                                (ii)        Loss of Statutory Rights     £   500.00

 

                                                                                                            £6,008.00

 

                                    Total Compensation (A+B) -                    £12,758.00

 

7.2       This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order 1990.

 

7.3       The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996, as amended by the Social Security (Miscellaneous Amendments No 6) Regulations (Northern Ireland) 2010 and your attention is drawn to the attached notice.

 

            Mr Sheridan

 

            (a)       Monetary Award                               £16,118.00

 

            (b)       Prescribed Element                         £  7,368.00

 

            (c)        Period to which (b) relates -

                        19 October 2016 to

                        11 January 2017

 

            (d)       Excess of (a) and (b) -                     £  8,750.00

 

            Mrs Sheridan

 

            (a)       Monetary Award                               £12,758.00

 

            (b)       Prescribed Element                         £  5,508.00

 

            (c)        Period to which (b) relates -

                        19 October 2016 to

                        11 January 2017

 

            (d)       Excess of (a) and (b) -                     £  7,250.00

 

           

 

 

 

Employment Judge

 

 

Date and place of hearing:          11 – 15 September 2017; and

28 – 29 September 2017, Belfast

 

 

Date decision recorded in register and issued to parties: