Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

 

 

CASE REF: 4376/17

 

 

CLAIMANT: Thomas Hughes

 

 

RESPONDENTS: 1. Belfast Harbour Commissioners

2. Billy Finlay

3. Hubert Scott

4. Patricia Toolan

 

 

 

 

 

Certificate of Correction

 

 

 

 

 

The decision issued on 3 July 2018 at page 11 which reads;

 

"Date and place of hearing: 26 - 28 April 2018, Belfast"

 

is corrected to read;

 

"Date and place of hearing: 24 - 26 April 2018, Belfast"

 

 

 

 

 

 

 

Employment Judge:_____________________________

 

 

Date: ____________________________ ______________

 

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 4376/17

 

 

 

CLAIMANT: Thomas Hughes

 

 

RESPONDENTS: 1. Belfast Harbour Commissioners

2. Billy Finlay

3. Hubert Scott

4. Patricia Toolan

 

 

 

DECISION

1. The unanimous decision of the tribunal is that the claimant was a disabled person at the relevant time, but that he was not treated less favourably on the grounds of his disability by any of the respondents.

 

2. The unanimous decision of the tribunal is that the respondents did not fail to make reasonable adjustments for the claimant.

 

3. The unanimous decision of the tribunal is that none of the respondents unlawfully harassed the claimant for a reason related to his disability.

 

4. The claimant's claim is dismissed in its entirety against all of the respondents.

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Browne

Members: Mr R Hanna

Ms M Mulligan

 

Appearances:

The claimant was represented by his wife, Mrs A M Hughes.

The respondents were represented by Mr N Phillips, Barrister-at-Law, instructed by Carson McDowell LLP, Solicitors.

 

 

ISSUES AND EVIDENCE

 

1.             The claimant's case, broadly stated, was that the respondents discriminated against him and unlawfully harassed him because of his disability, namely, dyslexia, which the respondents accept is a disability for the purposes of the Disability Discrimination Act 1995 ("the DDA"), and they also accept that the claimant suffered from that disability at the relevant time.

 

2.             The claimant initially worked for the first respondent from 2006 until 2008. He then returned to work for the first respondent as a Maintenance Technician (Electrical) in August 2013, then regarding it as a good employer. He remains in that role with the first respondent.

 

3.             He throughout his life has always struggled with written work, and felt that his daily work routine in his new job caused him significant difficulties when written work was involved.

 

4.             His own research before he returned to work for the first respondent led him to be diagnosed by a psychologist as suffering from serious dyslexia, which is formally recognised as a disability. He did not disclose his diagnosis to any of the respondents either before or upon his return to employment with the first respondent, until early 2016, when he in May 2016 told Hubert Scott, the 3rd respondent, who was his line manager, but also told him that he did not need any adjustments.

 

5.             The claimant had put coping mechanisms in place, which he felt enabled him to conceal his disability and to cope with the demands of his job.

 

6.             A number of incidents occurred between August 2015 and May 2017, which convinced him that the respondents knew about his disability.

 

7.             The claimant also told the tribunal that he had not been working for the first respondent for long before he noticed Billy Finlay's approach and behaviour towards him. It was part of his case that Mr Finlay's conduct was because he knew about the claimant's disability from early in his employment, and was targeting him because of it.

 

8.             In addition to specific incidents, the claimant felt that Mr Finlay frequently seemed to seek him out when he was doing written work, belittling him for the amount of time he was taking. Mr Finlay denied this, stating that the first time he became aware of the claimant's dyslexia was when he received notice of these proceedings. It was also the respondents' case that the claimant had never mentioned Mr Finlay's conduct in that regard until after he went off on sick leave in May 2017.

 

9.             The conduct of Mr Finlay was identified by the claimant in a number of incidents, and consisted, in general terms, of shouting at the claimant and behaving aggressively towards him. During a later investigation by Lyn McBriar, an independent HR consultant, in to a grievance made by the claimant, she spoke to a number of witnesses who confirmed that Mr Finlay was often inappropriately abrupt and aggressive to them also. It was therefore the respondents' case that he was treating the claimant in just the same way as he treated other people.

 

10.          Despite not being able to produce any evidence that Mr Finlay knew about the claimant's dyslexia from an early stage, the claimant was convinced that he did know, and that he was targeting him because of it.

 

11.          After another confrontation in February 2016, the claimant had had enough of Mr Finlay's behaviour, and told him to "back off". A couple of days later, Hubert Scott, the claimant's line manager, informed him that Mr Finlay had made a complaint about the claimant, because he had spoken to Mr Finlay on a few occasions in a way which the latter found to be aggressive and intimidating.

 

12.          Both men were called in to Mr Scott's office for a talk, as Mr Scott felt that it was simply a communication issue. Neither appeared to Mr Scott to feel that they had been in the wrong, but they agreed to put it behind them and to remain professional.

 

13.          It was at this time that the claimant decided to inform Mr Scott about his dyslexia, which he informed Mr Scott had recently been diagnosed. The claimant said that he did so partly because he considered that Mr Finlay might also suffer from dyslexia. Mr Scott reassured the claimant that he need not fear anything by telling him, although he would have to inform the first respondent's HR department. Mr Scott felt that it was inappropriate to discuss the purported disclosure by the claimant of Mr Finlay's potential condition.

 

14.          The claimant told Mr Scott that he did not need any adjustments to be made for him, as he had devised his own "coping mechanisms". It is of note that there was no evidence that there had ever been any complaint during the claimant's two employments with the first respondent, or elsewhere, about the quality of his work arising from his dyslexia, even before he had been diagnosed with it.

 

15.          Mr Scott was firm in his evidence that, had the claimant indicated that he needed any adjustments, he immediately would have liaised with HR in order to assist him. He also was clear that, had the claimant indicated that his issues with Mr Finlay were rooted in the latter's attitude to him arising from the claimant's dyslexia, he would have addressed this with Mr Finlay.

 

16.          It was readily apparent to the tribunal from the evidence that the claimant is highly regarded personally and professionally within the organisation.

 

17.          After his meeting with the claimant, Mr Scott informed Patricia Toolan, the fourth respondent, of the first respondent's HR department, about the claimant's dyslexia. Ms Toolan was clear that the claimant had no reason for concern, and mentioned that her own daughter had recently been diagnosed.

 

18.          It was Mr Scott's impression that the claimant was only sharing his own diagnosis of dyslexia with him in order to show that he knew what he was talking about when raising the possibility of Mr Finlay also suffering from it. There was nothing from what the claimant said which caused Mr Scott to think that the claimant was seeking, or needed, any assistance or reasonable adjustments from the respondents.

 

19.          The claimant as part of his case complained that, after he disclosed his condition to Mr Finlay, he was discriminated against because of it.

 

20.          He stated that in March/April 2016, he had to work late until 4am the following morning. He had booked a half-day's leave for the afternoon of that day, but claimed that, unlike his colleagues, he did not in fact get the whole of that day off.

 

21.          Mr Scott was able to produce records which satisfied the tribunal, and were not materially challenged by the claimant, that this occurred in November 2016. Those records made it clear that the claimant had in fact been given the whole day off, namely, by excusing from attendance in the morning due to his late finish, immediately followed by his scheduled half day's leave.

 

22.          The claimant also complained that when his mother-in-law died in April 2016, he had not been given any bereavement leave, which meant that the time off was deducted from his annual leave allowance. Even in his application to the tribunal, he accepted that this had been rectified. The respondents additionally explained that the amount of bereavement leave is not granted immediately, its length being retrospectively assessed, as it is not always clear at the outset how long each employee will need, depending upon the circumstances and family nexus between the applicant and the deceased.

 

23.          The tribunal was satisfied that this was standard practice, and the claimant himself conceded that it had been sorted out. His concern appeared to arise from the fact that it had arisen at all, concluding that it had been done deliberately, to upset him.

 

24.          The claimant also raised an issue which had arisen over taking a week's annual leave in September 2016, subject to him finding someone to cover the shift, as per the first respondent's usual practice. There was no evidence uncovered in an investigation by Ms Lyn McBriar, an independent HR consultant, that Mr Finlay had applied one rule to the claimant and another to anyone else, and the claimant was unable to cite any other case where that practice had not been applied.

 

25.          From 22 May 2017, the claimant went off sick. On his case to the tribunal, this arose because he felt that he had been cancelled at the last minute from doing an overtime shift on 20 May 2017, despite making arrangements to cover it. He described this as being "the last straw", and left work after his shift, but did not specify how this had been an act of discrimination.

 

26.          He did not specify who was involved, and there was evidence that he had had a row with another employee which had prompted his departure. It is of note that, whatever happened on 19th May 2017, it did not form part of the grievance he later raised about his alleged treatment.

 

27.          On 22 May, the claimant's GP certified him as being unfit for work due to work-related stress, whereupon Ms Patricia Toolan, fourth respondent, on behalf of the first respondent, in accordance with its policy, rang the claimant about arranging a medical assessment by the first respondent's Occupational Health doctor. She recalled that the clamant was very reluctant, as he felt that his own GP's assessment should suffice. The claimant however agreed to attend the medical assessment, conducted by Dr Jenkinson on 26 May 2017. Dr Jenkinson reported that the claimant was suffering from "work related stress attributed to relationship difficulties within the workplace", for which he recommended counselling.

 

28.          Ms Toolan, in response to the claimant's concerns and the medical assessment, arranged a welfare meeting with the claimant and his wife for 31 May 2017 at a neutral venue.

 

29.          At the meeting, they discussed the claimant's issues, and agreed to meet again on 12 June 2017, this time with Mr Scott present. At the meeting on 31 May 2017, Mrs Toolan suggested that access while he was on sick leave to an online Read and Write programme might assist the claimant, but he and his wife were opposed on the ground that his GP stressed the need for total rest.

 

30.          At the meeting of 12 June 2017, Ms Toolan followed up on previous discussion of formal and informal grievance procedures, emphasising the first respondent's preference for informal resolutions, including the counselling suggested by Dr Jenkinson.

 

31.          On Ms Toolan's evidence, at another meeting between her and the claimant on 10 July 2017, he indicated a preference for informal resolution, and a counselling session with Mr Selwyn Black, an independent professional, was arranged by Ms Toolan over the phone, while the claimant was in the room. Mr Black readily agreed to explore mediation with the claimant as part of that session, which took place on 18 July 2017.

 

32.          It seemed clear from Ms Toolan's evidence that she and the first respondent were very much in favour of mediation generally as a way of resolving issues, particularly as in this case, Mr Finlay had also agreed to engage in mediation.

 

33.          On 20 July 2017, the claimant lodged his grievance, much to Ms Toolan's surprise and disappointment; when she telephoned the claimant, he denied that he had agreed to an informal resolution. He also informed Mr Black on 26 July 2017 that he no longer required his services, later claiming that, despite his apparent agreement on 10 July, he had never agreed to discuss informal resolution. The claimant also stated that he viewed Mr Black as having a conflict of interest, apparently due to the fact that he encouraged the claimant to engage in mediation. Ms Toolan then sought to identify suitable counselling for the claimant, which he accepted.

 

34.          The claimant's evidence was that around this time, he was so stressed and anxious that he had gone in to "brain freeze", and that he was unable to think straight.

 

35.          The claimant's attitude to mediation was stated by him to the tribunal to be that he viewed it as being a mechanism for people who were in dispute, rather than, in his view of his case, a situation where one party (the claimant) was being bullied and harassed. There was no evidence that he had expressed that view to Ms Toolan, whom the tribunal found to be clear that she genuinely believed from her conversations with the claimant that he was willing to engage in it, and that he did not raise the reservation he later claimed was a barrier to engagement.

 

36.          The claimant was informed at around this time by Ms Toolan that he was now on half pay because of his absence from work. The claimant felt that he ought to still be on full pay, as he considered that the respondents had caused him to be off work. Evidence was produced which satisfied the tribunal that the claimant's reduction in pay appeared to be consistent with the respondent's written policy.

 

37.          Upon receipt of Dr Jenkinson's report on 24 July 2017, which suggested that, whilst the claimant was then still unfit for work, he might benefit from working under a different line management, on 3 August 2017, the first respondent offered the claimant a post in Port Operations. That was the only part of the first respondent's structure which Ms Toolan could identify as being potentially suitable.

 

38.          The claimant rejected it because he considered it inappropriate because of his dyslexia, and because he stated that he considered his area of expertise to be as an electrician. The claimant did not state what aspect of the post was unsuitable; nor did he request any reasonable adjustments which might be explored which could assist him to overcome the difficulties he perceived.

 

39.          On 16 August 2017, the claimant lodged his complaint with the tribunals' office.

 

40.          The claimant in February 2018 was further offered three different jobs within the first respondent's operation, including the Port Operations post, to which he replied that he would consider them, if suitable reasonable adjustments were made.

 

41.          In the meantime, the claimant's grievance of 24 July was investigated by Lyn McBriar. His complaints were that he had been bullied and discriminated against by Mr Finlay because the latter had somehow discovered the claimant's disability. He also complained that Mr Scott had discriminated against him on the ground of his disability after the claimant had disclosed it to him.

 

42.          Ms McBriar's report found that there was no evidence to support the claimant's grievances, and further concluded that neither the first respondent nor Mr Scott knew anything of his disability until he disclosed it in May 2017. She further concluded that Mr Finlay did not know anything about it until he received a copy of the claimant's complaint to the tribunal in late August 2017.

 

43.          In the view of the tribunal, Ms McBriar's investigation was thorough and genuinely independent.

 

LAW AND CONCLUSIONS

 

44.          The respondents accepted that the claimant at the material time was disabled for the purposes of the Disability Discrimination Act 1995 ("the 1995 Act").

 

The meaning of " discrimination " and "harassment" are set out at Sections 3A and 3B of the 1995 Act:

 

"3A Meaning of "discrimination"

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

3B Meaning of "harassment"

 

(1) For the purposes of this Part, a person subjects a disabled person to harassment where, for a reason which relates to the disabled person's disability, he engages in unwanted conduct which has the purpose or effect of-

 

(a) violating the disabled person's dignity, or

 

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

 

(2) Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect.]"

 

45.          The duty to make reasonable adjustments arises by virtue of Section 4A of the 1995 Act. It provides:-

 

" (1) Where -

 

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

 

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

 

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

 

46. The factors to be taken into account by a court or tribunal in determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make a reasonable adjustment and a non-exhaustive list of examples of reasonable adjustments are set out at Section 18B of the Act, and we do not repeat them here. Whether something is a reasonable adjustment is for tribunal to decide, objectively, on the facts of the particular case. (See: Smith v Churchill Stairlifts PLC [2006] IRLR 41 CA.)

 

Also, the making of a reasonable adjustment does not lead to the situation where everything remains the same for a claimant ( Taylor v Dumfries & Galloway CAS [2007] SLT 425).

 

The duty to make reasonable adjustments is extremely wide in scope. This is clear from the judgment of Baroness Hale in Archibald v Fife Council [2004] IRLR 65.

 

"It is ... common ground that employers are only required to take those steps which in all the circumstances it is reasonable for them to have to take. Once triggered, the scope of the duty is determined by what is reasonable, considered in the light of the factors set out in Schedule 6(4) ..."

 

47. Regard must also be had to the guidance given to tribunals in Environment Agency v Rowan [2008] IRLR (EAT) where His Honour Judge Serota stated, at paragraph 27, that a tribunal considering a claim that an employer has failed to make a reasonable adjustments must identify:-

 

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

 

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

 

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

 

(d) the nature and extent of the substantial disadvantage suffered by the claimant. It should be borne in mind that identification of the substantial disadvantage suffered by the claimant may involve a consideration of the cumulative effect of both the 'provision, criterion or practice applied by or on behalf of the employer and the physical feature of premises', so it would be necessary to look at the overall picture.

 

...

 

In our opinion, an employment tribunal cannot properly make findings of a failure to make reasonable adjustments without going through that process. Unless the employment tribunal has identified the four matters we have set out above, it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, placing the disabled person concerned at a substantial disadvantage."

 

48. The tribunal reminded itself before considering the burden of proof that direct evidence of discrimination (of any type) is rare and courts and tribunals will frequently have to infer discrimination from the facts which they have found. Furthermore, we have kept in mind in reaching our decision that discrimination in the particular context of disability can often take place where an employer makes assumptions, based on stereotypes, about a person's disability. (See Aylott v Stockton-on-Tees BC [2010] EWCA Cir 90 CA.

 

49. Section 17A(1C) sets out the burden of proof in disability discrimination cases. Following the now common formula set out in legislation outlawing other forms of discrimination, it provides as follows:-

 

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

50. In Igen Ltd (formerly Leeds Careers Guidance) and Others v Wong; Chamberlain Solicitors and Another v Emokpae; and Brunel University v Webster [2005] IRLR 258, the Court of Appeal in England and Wales has set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race, and disability discrimination. This guidance is now set out in full at an Annex to the judgment in the Igen case. We therefore do not set out again in full, but have taken it fully into account.

 

51. In short, the claimant must prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed an unlawful act of discrimination. The tribunal will also consider what inferences it is appropriate to draw from the primary facts which it has found. Such inferences can include inferences that it is just and equitable to draw from the provisions relating to statutory questionnaires, a failure to comply with any relevant Code of Practice, or from failure to discover documents or call an essential witness.

 

If the claimant does prove facts from which the tribunal could conclude in the absence of an adequate explanation from the respondent that the latter has committed an unlawful act of discrimination, then the burden of proof moves to the respondent. To discharge that burden the respondent must show, on the balance of probabilities, that the treatment afforded to the claimant was in no sense whatsoever on a proscribed ground (here disability). The tribunal must assess not merely whether the respondent has provided an explanation for the facts from which inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that disability was not a ground for the treatment in question. Since the facts necessary to prove an explanation will normally be in the possession of a respondent, a tribunal will normally expect cogent proof to discharge the burden of proof.

 

52. Although the above logically establishes a two-stage process, it is not to be applied slavishly or mechanically, and in deciding whether the claimant has made out a prima facie case the tribunal must put to one side the employer's explanation for the treatment, but should take into account all other evidence, including evidence from the employer. (See: Laing v Manchester City Council [2006] IRLR 748 EAT; Madarassy v Nomura International Ltd [2007] IRLR 246; and Arthur v Northern Ireland Housing Executive and Anor [20070] NICA 25.)

 

53. These cases were considered more recently by HM Court of Appeal in Northern Ireland in Curley v Chief Constable of the Police Service of Northern Ireland and Anor [2009] NICA 8 and Nelson v Newry & Mourne District Council [2009] NICA 24.

 

In the former, Coughlin LJ at paragraph 16 of his judgment emphasised the need for tribunals hearing cases of this nature to keep firmly in mind that such claims are grounded upon an allegation of discrimination (in that case religious discrimination). This was re-emphasised by Girvan LJ at paragraph 24 of the judgment in the latter case.

 

54. More specifically, in relation to the duty to make reasonable adjustments, the burden of proof was considered in Project Management Institute v Latif [2007] IRLR 579. In Harvey on Industrial Relations and Employment Law, the position is summarised as follows:-

 

"... [T]he EAT held that a claimant must prove both that the duty has arisen, and also that it has been breached, before the burden will shift, and require the respondent to prove that it complied with the duty. There is no requirement for claimants to suggest any specific reasonable adjustments at the time of the alleged failure to comply with the duty; in fact it is permissible ... for claimants to propose reasonable adjustments on which they wished to rely at any time up to and concluding the ... hearing itself."

 

55 . The tribunal has concluded that the claimant has failed to prove facts on the balance of probabilities from which the tribunal could conclude in the absence of an adequate explanation that any of the respondents has committed an unlawful act of discrimination.

 

56. The tribunal is unanimously of the view that none of the respondents knew of his disability until he disclosed it to Mr Scott. There was no evidence that there had ever been any action taken arising from the quality of his work, even before he had sought the professional assessment which confirmed that he was dyslexic.

 

57. There was compelling evidence from the claimant that his coping mechanisms, devised only after his diagnosis, were wholly effective in enabling him to perform his work tasks without any issues as to timeliness or accuracy.

 

58. The tribunal is satisfied that, in accordance with Ms McBriar's thorough investigation, Mr Finlay's treatment of the claimant was abrupt, but that this was simply his personal manner. The tribunal accepted Mr Finlay's evidence that his first knowledge of the claimant's disability was when he received the claimant's tribunal complaint in August 2017.

 

59. The tribunal is satisfied from the evidence that the first knowledge of the claimant's condition was his disclosure to Mr Scott in late February 2016. The tribunal is further satisfied that the claimant made it clear that he did not need or want any reasonable adjustments, and that Ms Toolan and Mr Scott were genuinely anxious to assist him as best they could.

 

60. The tribunal is satisfied that the claimant's complaints regarding his bereavement leave and annual leave, and the issue regarding his overtime shift, are of no substance.

 

61. The bereavement leave was conducted in accordance with the first respondent's clear policy, applicable to all employees, and it was not in any way connected to the claimant's disability. There was no evidence that such policy, in its terms or application, put him at any disadvantage in connection with his disability.

 

62. Similarly, as regards the other leave issues, there was no evidence that they had any connection with his disability, nor that application of the first respondent's policies had any adverse impact upon the claimant, either as regards his disability or generally.

 

63. The tribunal was satisfied that the claimant was genuinely of the opinion that he was being singled out for adverse treatment due to his disability. Despite the tribunal's conclusion that there was no objective evidence to support his views, he suffered prolonged and genuine mental anguish. The tribunal is satisfied however that his belief was misplaced. The claimant has failed to establish any facts from which the tribunal could conclude that any act of discrimination or harassment was committed by any of the respondents.

 

64. The tribunal also similarly concludes that, from the time it first knew that the claimant suffered from a disability, neither the first respondent, nor any of the others, failed to provide reasonable adjustments for him.

 

65. The claimant's claims are therefore dismissed in their entirety against all of the respondents.

 

 

 

Employment Judge:

 

 

Date and place of hearing: 26 - 28 April 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: