Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF : 6492/17IT

 

 

CLAIMANT: David McCosh

 

 

RESPONDENTS: 1. DGS Service Solutions LTD

2. David Huxley

 

DECISION

1.             The unanimous decision of the tribunal is that the claimant was not at the relevant time a disabled person for the purposes of the Disability Discrimination Act 1995. His claim in that regard is therefore dismissed.

 

2.             The unanimous decision of the tribunal is that the respondents made unlawful deductions from the wages of the claimant in their calculation of his holiday pay. The respondents are therefore ordered to pay to the claimant the sum of £547.20.

 

3.             The unanimous decision of the tribunal is that the respondents did not make an unlawful deduction from the wages of the claimant by deducting the cost of his security operative's licence. That aspect of his claim is therefore dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Browne

 

Members: Dr C Ackah

Mr T Carlin

 

 

Appearances:

 

The claimant appeared and represented himself.

 

Both respondents were represented by Mr David Huxley.

 

 

ISSUES AND EVIDENCE

 

1.             The second named respondent is the owner of the first named respondent.

 

2.             The claimant was employed by the respondents as a security guard/control room operator from 1 September 2016 until his resignation on 19 September 2017. He worked an average of 42 hours per week, being 36 hours one week and 48 hours the next. His hourly rate was £7.60 per hour.

 

3.             The claimant raises two issues as the basis for his claim.

 

4.             The first is that the respondents failed to make reasonable adjustments for him in relation to his back condition, which he claims at the material time was a disability for the purposes of the Disability Discrimination Act 1995.

 

5.             On the claimant's case, the appropriate reasonable adjustment would have been to permit him to work permanently in the Control Room of its premises, rather than also having to patrol the grounds on foot.

 

6.             The second claim is that the respondents, in their calculations of the rate of holiday pay to which he was entitled, used the wrong formula.

 

7.             The claimant, being contractually entitled to twenty-eight days' holiday per year, argued that they ought to have calculated it on the basis of twenty-eight days' holiday at twelve hours per shift. Instead, as a result of the respondents' formula, the claimant's holiday pay was paid at 8.4 hours per day, thereby reducing his holiday pay entitlement by 3.6 hours per day taken, totaling 18 hours' less pay for the periods claimed.

 

8.             The respondents' case was that they had properly offered the claimant a choice between either 19.6 days' leave at twelve hours or 28 days' leave at 8.4 hours.

 

9.             The claimant also sought to claim a refund on £220.50 deducted from his pay by way of the balance of a "loan" from the respondents, to cover the cost of his security certificate, without which he could not have worked in the capacity for which he was employed.

 

10.          As regards the disability claim, the claimant gave oral evidence of his ongoing back pain, confirmed by two written medical reports, dating back to early 2017, namely, during his employment by the respondents one of those reports simply related the contents of the other as regards a lumbar scan. That scan showed that the claimant had disc protrusion "with potential irritation of the...nerve roots".

 

11.          The claimant's physiotherapist stated that he then discussed the possibility of a nerve root injection, but that the claimant at that time was able to manage his symptoms of lower back pain, with hip pain and intermittent pain down the back of his calf by using Cocodamol or Naproxen.

 

12.          There was also a letter from his GP, dated 12 December 2017, in effect conforming the contents of the two earlier medical reports. The letter referred to him being medically unfit for work due to stress. There was also reference to his ongoing back pain, which "markedly affects his mobility", but was unclear as to the source of this information, other than that reported to his doctor by the claimant himself.

 

THE DEFINITION OF DISABILITY AND CONCLUSIONS

 

13. The meaning of "disabled person" is set out in Section  1 of the Disability Discrimination Act 1995 ("the DDA") which provides that:-

 

"(1) Subject to the provisions of Schedule 1, a person has a disability for the purposes 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."

 

Section 2 of the DDA provides in relation to past disabilities:-

 

"(1) The provisions of this Part and Parts II and III apply in relation to a person who has had a disability as they apply in relation to a person who has that disability.

 

...

 

(4) In any proceedings under Part II or Part III of this Act, the question whether a person had a disability at a particular time ("the relevant time") shall be determined, for the purposes of this section, as if the provisions of, or made under, this Act in force when the act complained of was done had been in force at the relevant time.

 

...

 

(5) The relevant time may be a time before the passing of this Act".

 

14. Section  3 of the DDA enables the Secretary of State to issue guidance about the matters to be taken into account in determining a number of issues likely to arise in disability discrimination cases, including whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities; or whether such an impairment has a long-term effect.

 

15. Section 3(3) of the DDA provides that a tribunal or court determining, for any purpose of this Act, whether an impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities, shall take into account any guidance which appears to it to be relevant.

 

16. Paragraph 4(1) of Schedule 1 to the DDA provides that 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 or understand; or

 

(h) perception of the risk of physical danger.

 

17. The tribunal considered the following case law:- Morgan v Staffordshire University [2002] IRLR 190 EAT; Hospice of St Mary of Furness v Howard [2007] IRLR 944; Abadeh v British Telecommunications PLC [2001] IRLR 23 EAT; Goodwin v Patent Office [1999] ICR 302 1999 IRLR 4 EAT; ChacÓ n Navas v Eurest Colectividades SA [2006] IRLR (ECJ), C-13/05.

 

18. In deciding whether a person has a disability within the meaning of the Act, the tribunal must address the four questions set out in the case of Goodwin v The  Patent Office 1999 IRLR 4 , namely:-

 

Does the claimant have an impairment which is either mental of physical?

 

Does the impairment affect the claimant's ability to carry out normal day-to-day activities in one of the respects set out in Schedule 1 Paragraph 4(1) of the 1995 Act and does it have an adverse effect?

 

Is the adverse effect substantial?

 

Is the adverse effect long term?

 

19. The onus is on the claimant to prove that he has or had a disability within the meaning of the 1995 Act at the time of the alleged discriminatory act which gave rise to his complaint (the relevant time). The respondent disputed that the claimant had such a disability.

 

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."

 

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.)

 

20. 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) ...

 

(iii) 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."

 

21. 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).

 

22. 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."

 

23. 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.

 

24. 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.

 

25. 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.

 

26. 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.)

 

27. 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.

 

28. 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.

 

29. 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."

 

30. As Brian Doyle in his leading text book 'Disability Discrimination Law and Practice' stated at Paragraph 2.4.3:-

 

"Expert evidence of what the claimant can and cannot do (and the circumstances of that capacity) will be important. Often this will be in the form of a report or evidence from a medical specialist (such as a consultant or an occupational health professional). However, the tribunal must not delegate the decision as to what are normal day-to-day activities to the expert witness. That is a judicial decision, to be arrived at using basic common sense, in the light of the evidence, the statute and the revised guidance. But there is a Catch 22 for many claimants in arguing that they are sufficiently disabled to be covered by the DDA 1995, but not so disabled as to be prevented from carrying out, for example, the duties of employment. Yet, as a matter of principle, evidence of the nature of the claimant's duties of work and the way in which they are performed can be relevant to the assessment of whether the claimant is a disabled person. ( Law Hospital NHS Trust v Rush [2001] IRLR 611; Cruickshank v VAW Motorcast Ltd [2002] IRLR 24 duties while at work will often encompass normal day-to-day activities. At the very least, evidence of ability or inability to carry out normal day-to-day activities while at work goes to the credibility of any evidence that those activities cannot be carried on outside work (or can only be done so with difficulty)."

 

31. The Equality Commission for Northern Ireland Disability Code of Practice Employment and Occupation indicated day to day activities, which is not defined, are activities which are carried out by most people on a fairly regular and frequent basis and was not intended to include activities which are normal only for a particular person. In Patterson v Commissioner of Police of the Metropolis (2007) IRLR 76, it was held if the impairment is of the kind described in Paragraph 4 of schedule 1 that it is almost inevitable it will have an adverse effect on normal day to day activities. In the 2010 guidance, in GB, reference is made, in so far as may be of interest for these proceedings:-

 

"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."

 

32. Following Patterson it is apparent that evidence about what an individual could or could not do at work can be particularly relevant if some of his or her activities constitute what most would regard as 'normal day to day activities'. In Patterson, it was held that in order to give full effect to European law the term normal day to day activities had to be read so as to encompass the activities which are relevant to participation in professional life. Generally, therefore, normal day to day activities do not include work of any particular kind because no particular form of work is 'normal' for most people.

 

33. This issue of disability is for the tribunal to determine on the basis of the available evidence and experts cannot usurp the tribunal's role. The tribunal, in light of the foregoing, first requires to assess whether, as a general proposition, the activities in question are normal day to day activities and, if so, the tribunal should then assess whether, in the particular case, the claimant's ability to undertake these activities is substantially adversely affected by the relevant impairment.

 

34. Having determined and examined the relevant law, the tribunal proceeded to apply it to the facts found. The medical reports relied upon by the claimant did not contain any mention of whether or not the claimant was or might be disabled for the purposes of the Disability Discrimination Act 1995. Whilst the tribunal is mindful that its role cannot be usurped by a medical opinion, the distinct lack of any general medical practitioner or of a specialist was a significant obstacle to the claimant's case.

 

35. The lack of medical evidence also meant that there was no opinion as to whether or not the fact that the claimant's work involved walking round the grounds was a potentially aggravating factor in his medical condition. Nor was there any reference to what, if any, reasonable adjustments might have alleviated it.

 

36. The respondents challenged the claimant's assertion that he was in fact disabled at the relevant time, namely, during his employment with them.

 

37. They also denied that they had any idea that he was having any difficulties in performing his work due to back pain.

 

38. The respondents also refuted that the reasonable adjustment identified by the claimant, namely, not having to go out on foot patrol, was ever suggested to them by him.

 

39. The claimant called Mr David Agnew to give evidence as to the respondents' knowledge of the claimant's disability. The tribunal did not find Mr Agnew to be a satisfactory witness. He admitted that he had no direct knowledge of the claimant's condition; nor did he ever hear the claimant complain to the respondents, or any of their staff, about his condition. The tribunal also noted that Mr Agnew's evidence appeared to be motivated by substantial personal animosity towards Mr Huxley, which meant that even his limited evidence was approached with great reservation by the tribunal.

 

40. The tribunal concludes that the evidence in support of the claimant's claim of being disabled at the relevant time fell far short of that required to establish on the balance of probabilities that he was disabled at the relevant time. Even on the limited medical evidence produced by the claimant, he told his physiotherapist that he was able to manage it with common painkillers. His unfitness to work in August 2017 was recorded by the claimant's GP as being due to stress, with no mention of his physical condition, other than an unspecified allegation of discrimination.

 

41. In those circumstances, the tribunal concludes that the claimant has failed to establish that he was at the relevant time a disabled person for the purposes of the DDA. There consequently was no obligation upon the respondents to make any reasonable adjustments. His claims in that regard are therefore dismissed against both respondents.

 

42. As regards the claimant's claims of unlawful deduction of wages, the legislation is at Article 45 of the Employment Rights (Northern Ireland) Order 1996 ("the Order"):

 

" 45. - (1) An employer shall not make a deduction from wages of a worker employed by him unless-”

 

(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

 

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction.

 

(2)  In this Article " relevant provision ", in relation to a worker's contract, means a provision of the contract comprised-”

(a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

 

(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

 

(3) Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.

 

(4) Paragraph (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

 

(5) For the purposes of this Article a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

 

(6) For the purposes of this Article an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

 

(7) This Article does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting " wages " within the meaning of this Part is not to be subject to a deduction at the instance of the employer."

 

43. In the case brought by the claimant regarding his holiday pay entitlement, the tribunal agrees with the claimant that his rate of holiday pay was, in effect, paid at a lower rate than it ought to have been. The tribunal is satisfied that the appropriate rate of pay ought properly to have been for twelve-hour shifts, and not for the 8.4 hour shifts paid when calculating his holiday pay. In light of the Willetts case, it appeared to the tribunal that the respondents had incorrectly calculated the claimant's rate of pay. As such, it therefore was an unlawful deduction of wages. The respondents are therefore ordered to pay to the claimant the sum of £547.20.

 

44. An issue arose as to the timeliness of the claimant's claim, in that he did not lodge his claim form until 5 October 2018. One period of holiday pay for May was paid to the claimant in early June 2018; the second period of holiday pay for leave taken in August was paid to him in September 2018, which brought that second period within the statutory time limit of three months from the act complained of.

 

45. The relevant legislation appears at Article 55 (3) (a) of the Order:

 

"Complaints to industrial tribunals

 

55. - (1) A worker may present a complaint to an industrial tribunal-”

 

(a) that his employer has made a deduction from his wages in contravention of Article 45 (including a deduction made in contravention of that Article as it applies by virtue of Article 50(2)),

 

(b) that his employer has received from him a payment in contravention of Article 47 (including a payment received in contravention of that Article as it applies by virtue of Article 52(1)),

 

(c) that his employer has recovered from his wages by means of one or more deductions falling within Article 50(1) an amount or aggregate amount exceeding the limit applying to the deduction or deductions under that provision, or

 

(d) that his employer has received from him in pursuance of one or more demands for payment made (in accordance with Article 52) on a particular pay day, a payment or payments of an amount or aggregate amount exceeding the limit applying to the demand or demands under Article 53(1).

 

(2) Subject to paragraph (4), an industrial tribunal shall not consider a complaint under this Article unless it is presented before the end of the period of three months beginning with-”

 

(a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction was made, or

 

(b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received.

 

(3) Where a complaint is brought under this Article in respect of -”

 

(a) a series of deductions or payments, or

 

(b) a number of payments falling within paragraph (1)(d) and made in pursuance of demands for payment subject to the same limit under Article 53(1) but received by the employer on different dates, the references in paragraph (2) to the deduction or payment are to the last deduction or payment in the series or to the last of the payments so received.

 

(4) Where the industrial tribunal is satisfied that it was not reasonably practicable for a complaint under this Article to be presented before the end of the relevant period of three months, the tribunal may consider the complaint if it is presented within such further period as the tribunal considers reasonable."

 

46. The tribunal is satisfied that the payment in September was the second in a series of unlawful deductions, and therefore the payment in June is properly also within its jurisdiction.

 

47. The claimant also included in his claim what he considered to be another unlawful deduction of wages regarding the deduction from his final payment of the outstanding balance of £220 for his security licence. The tribunal has concluded that the claimant was well aware that this was a loan from the respondents upon taking up his employment with them, and clearly appears as such on his pay slips, and in his contract of employment, which the tribunal is satisfied was known to him when he signed it. The tribunal is further satisfied from the evidence that it falls within the ambit of Article 45 (1) (b) of the Order as a deduction to which he agreed in writing, and his claim in that regard is therefore dismissed.

 

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

 

Employment Judge:

 

 

Date and place of hearing: 30 and 31 July 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: