Mullan v Western Health & Social Care T... Western Health & Social Care T... [2012] NIIT 02451

THE INDUSTRIAL TRIBUNALS

CASE REFS: 2451/10

2690/10

CLAIMANT: Martin Mullen

RESPONDENT: Western Health & Social Care Trust

DECISION

The unanimous decision of the tribunal is as follows:-

The claimant’s claims of disability discrimination (direct discrimination, disability-related discrimination, failure to make reasonable adjustments), unfair dismissal, breach of contract and unlawful deductions from wages are dismissed.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Mr J Boyd

Mr R Hanna

Appearances:

The claimant was represented by Mr S Doherty, Barrister-at-Law, instructed by Copeland McCaffrey, Solicitors.

The respondent Trust was represented by Mr M Potter, Barrister-at-Law, instructed by Directorate of Legal Services, Business Services Organisation.

(i)

The claimant, Mr Martin Mullen, by claims presented to the tribunal on 12 October 2010 and 11 November 2010 alleged that he had been unlawfully discriminated against by the respondent on the ground of disability discrimination (direct disability discrimination, disability-related discrimination, failure to make reasonable adjustments), unfair dismissal (ordinary unfair dismissal and constructive dismissal being pleaded in the alternative), breach of contract and unlawful deductions from wages. The respondent took issue with whether the claimant had pleaded direct discrimination and disability-related discrimination. It also contended that some of the claimant’s claims had not been brought within the statutory time-limits.

A copy of the Record of Proceedings of a Case Management Discussion held on 29 March 2011 is attached in an annex to this decision.

(ii)

In order to determine this matter the tribunal heard evidence from the claimant, Mr Mullen. A statement of evidence from his wife, Mrs Ann Mullen, was agreed. The following gave evidence on behalf of the respondent Trust:-

Dr Rodney Gamble MB BCh MFOM, Consultant Occupational Health Physician, Western Health & Social Care Trust (‘WHSCT’);

Mr Aidan Gordon, Assistant Director, Adult Safeguarding, WHSCT, and formerly Head of Care and Accommodation (his post at the relevant time);

Mrs Marie Ward, Human Resources Manager, Directorate Support Team, WHSCT; and

Mrs Ruth Burns, Human Resources Manager (Recruitment and Selection), WHSCT.

		We were also referred to documentary evidence submitted by the parties.

	(iii)	We find the facts set out in the following paragraphs.

2.	(i)	The claimant, Mr Mullen’s, employment history with the Trust began in 1975. In that year he started work with its predecessor, the Western Health & Social Services Trust. He was employed as a Care Manager, but unfortunately had to retire on grounds of ill-health because of an ongoing depressive illness. When he took ill-health retirement, he received a pension.

	(ii)	By late 1998 his health had improved sufficiently to enable him to return to work. Initially he returned to a temporary position, but this became permanent in due course. Unfortunately, he became unwell again with depression and there was a recurrent pattern of absence from work because of it from 2003 to 2009. In each of these years he was off work for about two or three months because of his illness. Following his absence in 2009, which appears to have started on 21 March of that year, there was set in place a chain of events which ultimately ended in his retirement on ill-health on 18 July 2010.

	(iii)	In relation to his final retirement on ill-health some flavour of the claimant’s case can be had from his statement “that I have been treated in this way because of my depression and I believe that had I suffered from a short-term illness or had I not suffered from this type of disability I would not have been treated in this way”. He went on to speak of being “forced to apply for ill-health retirement” and alleged that he was “pushed into a corner and left with no other options”. The employer disputes that the claimant was forced into ill-health retirement or that it left him with no other options.

3.	(i)	When the claimant went off work in March 2009, he was employed as the Officer-in-Charge (Band 7) at Foyleville Care Home, Londonderry. In essence he was the manager of that home. From June 2009 until September 2009 there was a temporary manager in place at the home. That temporary manager worked there on a full-time basis. During the claimant’s absence a decision was taken to close the home, and from September 2009 until its eventual closure it was managed on a part-time basis by the manager of another Trust care home at William Street, which was a comparatively short distance away. The assignment of a full-time manager to Foyleville before the decision to close it had been made was clearly predicated on the assumption that the claimant would be returning to work, as he had done over the years following his other incidents of depression.

	(ii)	The claimant was seen on 9 June 2009 by Dr Gamble, the respondent’s Occupational Health Consultant. The latter wrote to Mr Gordon, who was the claimant’s line manager, on 16 June 2009. In that letter, Mr Gamble stated that the claimant was not yet fit to return to work. He referred to recent changes in the workplace and said that these were likely to have a negative effect on the claimant’s future rehabilitation. Dr Gamble said it would be worthwhile pursuing the option of ill-health retirement and recorded that the claimant was “open to this idea”. He said he would review the claimant in approximately six weeks’ time, ie late July 2009. However, this review appointment was delayed because of Dr Gamble’s responsibilities for the Swine ‘Flu’ Epidemic Immunisation programme in the province. Dr Gamble very fairly accepted that the delay was not ideal. However, the delay did not make any difference, in terms of the advice from Occupational Health, because when the claimant ultimately saw Dr Gamble he was not judged fit for work.

	(iii)	The claimant had been seeing his own GP, Dr O’Flaherty, on 5 July 2009. Dr O’Flaherty cleared him as being fit to return work. The claimant, who was eager to return to his post, in turn contacted Mr Gordon and told him of Dr O’Flaherty’s advice. Mr Gordon told him that he would have to put off coming back to work until he had seen Occupational Health. This was in accordance with the Trust’s requirement that any employee absent on sick leave for longer than four weeks had to be referred to Occupational Health. Consistent with that, the claimant had been told in April 2009 that he would have to be seen by Occupational Health before coming back to work.

	(iv)	Dr Gamble saw the claimant for review on 25 September 2009, and he sent a report of this meeting to Mr Gordon by letter of 28 September 2009. He noted that the claimant had made a significant improvement since he last saw him and that he was fit to return to work. According to the claimant, the recommendation was that he should return to work on a phased basis (as had, of course, happened following his previous absences). There is no mention of this in Dr Gamble’s letter, but at the end of the day we think nothing turns on this difference in recollection. Dr Gamble, however, went on to express concern about the claimant going back to his place of employment at Foyleville, and said that he had asked for a report from a colleague to consider what might be the impact on the claimant of returning to Foyleville. His concerns arose because he believed there was now a highly charged atmosphere surrounding Foyleville. It was now public knowledge that the home was earmarked for closure and this had led to protests from residents’ relatives and others. The claimant’s previous incidents of depressive illness had not been mild – typically they had led to him being off work for periods of two to three months – and Dr Gamble was very worried about his health if he returned to Foyleville. He had particularly in mind a medical report from Dr O’Flaherty of 8 October 2009 in which the latter had said:-

“When [the claimant] becomes unwell, he becomes very unwell, with a major impact on his life.”

Dr Gamble did consider the impact on the Disability Discrimination Act. He believed that the claimant’s case fell under it, and he flagged up the Trust’s duty to make reasonable adjustments. However, he went on to say that he was also concerned that under health & safety legislation the Trust must not put the claimant’s health at risk by placing him in an environment which might have a negative impact on his health.

He further recommended that he and Mr Gordon should have a meeting with someone from Human Resources to discuss the case further and plan for ‘rehabilitation’.

Thus, ‘reasonable adjustments’ and ‘rehabilitation’ were mentioned here. There was no overt discussion of the ill-health retirement, albeit that that option was probably never far from Mr Gamble’s mind.

(v)

Dr Gamble saw the claimant again on 28 October 2009, and he wrote to Mr Gordon, following that meeting, on 30 October 2009.

He continued to have concerns about him going back to his normal role, notwithstanding that he was ready to return to work.

With regard to the proposed meeting with Mr Gordon and someone from Human Resources, he recommended that the claimant joined the meeting at the end to discuss the findings of that meeting and any plan for his rehabilitation.

At the review on 28 October 2009, Mr Gamble had discussed options which included ill-health retirement. In his letter to Mr Gordon of 30 October 2009 he stated:-

“[T]his is not Martin’s preferred option at present and, if the Trust were to find something appropriate, I would be prepared to follow the rehabilitation route rather than ill-health retirement at this stage.”

4.	(i)	Around this time the claimant also ran into difficulties with his pay. (This is an element of his claim for constructive dismissal and also gives rise to his claims for unlawful deductions from wages and breach of contract). His salary was reduced to half-pay with effect from 25 November 2009. At this stage he had been off work for eight months. His contract of employment was for full pay for the first six months of sickness absence, then for half-pay for a further six months. The claimant had stopped submitting sick lines when he had been cleared for return to work by his own GP on 4 July 2009. Salary and Wages staff had been unaware that he had not come back to work on that date, and therefore did not reduce his pay to half-pay in September 2009 when he had exhausted his full pay entitlement. He was also told that he had to repay the consequent overpayments made to him from September – November 2009 within a period of four months (when half-pay would end). This was done peremptorily, without any consultation with the claimant, something which we regard as unfortunate, given all the circumstances. This was accepted by Mrs Burns. In fairness to her, she contacted Salaries and Wages in an attempt to have the repayment period extended, but was told that this was not possible.

	(ii)	The evidence of the claimant is that he had raised the issue of pay with Mr Gordon back in July, and that the latter had confirmed he would receive full pay, as his GP had certified him as fit for work. However, this is disputed by Mr Gordon, and we consider his evidence in this regard more probable. Mr Gordon knew, and informed the claimant, in July that he could not come back to work without first seeing Occupational Health. Additionally, pay was not within his gift – it was a matter for Salaries and Wages.

5.	(i)	On 3 December 2009 a meeting was held to discuss the claimant’s case. It was attended by Aidan Gordon, Dr Gamble and Mrs Burns of HR. It had been arranged that the claimant would join the meeting towards its end, so that there would be an opportunity to speak to him about the issues that had been raised and discussed.

	(ii)	Dr Gamble, as Occupational Health Consultant, obviously played a pivotal role in these discussions. We accept his evidence, set out at paragraph 12 of his witness statement, where he says:-

“My goal throughout has been to attempt to see an appropriate rehabilitation of this man to allow him to return to work in such a way that his mental health is not negatively affected. I have taken his undergoing medical condition into consideration at all times and advised the Trust regarding its likely inclusion under Disability Discrimination Legislation and, rather than discriminate against this man in terms of his disability, I have made every effort to advise the Trust regarding reasonable accommodation in order to protect his health and retain him in the workplace.”

		We also accept Dr Gamble’s evidence that the claimant’s previous absences from work were not a major issue in the discussions which took place on 3 December 2009.

	(iii)	Dr Gamble remained clear in his view that the claimant should not return to Foyleville. He was firmly of the view that the claimant’s medical condition, while it had not been caused by work, was likely to be made worse as a result of the additional stressors surrounding the proposed closure of Foyleville, particularly the high-profile campaign against its closure. While there was some suggestion that some persons involved in the protest against the closure were linked to, or were apologists or political front men for, a dissent terrorist group, and that there may have been some discussion of this, we accept the evidence of the respondent’s witnesses that an unfounded suggestion of a threat to the claimant was never put forward as a reason why the claimant should not go back to Foyleville.

	(iv)	No consideration was given to changes to, or a reduction in, the claimant’s duties in Foyleville. However, we consider that this was consistent with Dr Gamble’s overall advice.

	(v)	We do not accept that the claimant was told that because Foyleville was closing, there would be no position or role for him. The discussion which took place looked at other roles in the light of Dr Gamble’s advice. There were no residential roles available, and a post of Localities Manager was considered, but was considered inappropriate, because of concerns about deploying the claimant in an unfamiliar role with the consequent stressors. There was also a general discussion of Band 6 posts (ie a post at a grade lower than the claimant’s post). He had said that he would take a lower post and had indicated that he was prepared to travel.

	(vi)	More specifically, we deal with two posts which the claimant contends would have been suitable for him. In or around November 2009 there was a vacancy for the post of Officer-in-Charge at a Trust home in Seymour Gardens, in the Waterside area of Londonderry. The claimant was not advised of this position and by the time of the December meeting it had not been filled. However, the claimant did not meet one of the essential criteria for this post, which was a designated EMI post (ie working with the Elderly Mentally Infirm). It was a requirement that the manager should have two years experience in the previous five working with patients suffering with dementia, and the claimant did not possess such experience. Additionally, the appointment of a manager to such a home required the approval of the regulatory body, the RQIA.

	(vii)	There was also discussion of the claimant working temporarily in the William Street Residential Home to allow the manager of that home to continue looking after Foyleville as she had done during the claimant’s absence. At best this would only have provided a solution in the short term. However, the belief was that a posting to the William Street Home was too closely linked to the closure of Foyleville. Some of the Foyleville residents had moved to William Street and others were in the process of moving. This was as a direct result of the closure of Foyleville, and so the same considerations that militated against the claimant’s return to Foyleville also applied to the William Street Home. In essence there was a continuity between Foyleville and William Street.

6.	(i)	The end result of the meeting of 3 December 2009 was that no suitable employment option appeared to be available for the claimant. In these circumstances, the discussion moved on to the possibility of ill-health retirement. This was certainly the option which Dr Gamble, as the Occupational Health Specialist, considered to be most appropriate.

	(ii)	The claimant, as had been arranged, joined the meeting towards its end. It was explained to him that the employer was not prepared to let him go back to Foyleville because of concerns that such a placement would be detrimental to his health. The difficulties, as seen by management, of finding a suitable other post for him, either at Band 7 or Band 6 level, were also explained to him.

	(iii)	Ill-health retirement was then mentioned, and Mrs Burns suggested to the claimant that he might wish to explore his eligibility for that. It is, of course, the claimant’s case that he was effectively forced or pressurised into accepting ill-health retirement by the respondent Trust. However, we are satisfied that at the meeting on 3 December 2009 this was raised in good faith as a potential option by the respondent, and that it was something which the claimant at that stage was prepared to consider. There was no question of a definitive decision on ill-health retirement being made at the meeting. The decision was one which it was ultimately for the claimant to make when he saw estimates of what financial package would be available to him, and indeed Mrs Burns agreed to contact HSC Pensions on his behalf to get figures. The decision as to whether or not to grant any application for ill-health retirement was one for HSC Pensions, not the Trust. The claimant cannot have been taken by surprise when ill-health retirement was raised. He had been down that route before, and earlier in the year, in his discussions with Dr Gamble, he had certainly not been openly hostile to the idea, albeit that sometimes he was more receptive to it than at others. This is perfectly understandable in the circumstances. It is also, to our mind, significant that at this meeting the employer never raised the possibility of termination of the claimant’s employment by dismissing him on health grounds.

7.	(i)	Subsequently, on 4 January 2010 the claimant wrote to Mr Gordon. He referred to the meeting of 3 December 2009 and stated that he was at a loss to know how the decision was reached that he should not return to Foyleville. He said that he had understood that the purpose of the meeting was to discuss his phased return to Foyleville. If that were his understanding he certainly did not make that point at the meeting, for he appears to have acquiesced, at the very least, in the matters which were actually discussed. He made a request in the letter to be provided with all information that was available when the decision that he should not go back to Foyleville was made. He went on to express his strong desire to go back to Foyleville and said:-

“[M]y GP, mental health counsellor and psychiatrist all believe it would not be detrimental to my health to return to [Foyleville]. They indeed feel it would be of benefit to me.”

		The strong, contrary advice from Dr Gamble is not referred to in the letter.

	(ii)	As a consequence of this letter, Mr Gordon arranged to see the claimant again, along with Mrs Burns, on 1 February 2010. He told the claimant he could bring his trade union representative with him. On 25 January 2010, Dr Gamble sent a letter to Mr Gordon (copied to the claimant) confirming his view regarding the claimant’s fitness for work. He wrote:-

“I stated that I did not believe that his underlying medical condition was caused by work but that I had concerns that a return to work as Officer-in-Charge of Foyleville would be detrimental to his health and would likely cause an exacerbation of his underlying medical condition. Therefore, while I consider Martin fit to work, I do not consider him fit to return to his previous post as Officer-in-Charge of Foyleville.

…

Additionally there may be consequences to Martin to being relocated to roles with which he is not familiar and therefore I consider the best option in this case for the preservation of this man’s long-term health is ill-health retirement if an appropriate role cannot be found within the Trust.”

		It is clear that in his letter, Dr Gamble is also flagging up issues in relation to placing the claimant in roles with which he was not familiar. It is also clear that although ill-health retirement is very much to the forefront of his mind, he had not completely discounted the possibility that a role could be found for the claimant.

	(iii)	The claimant came to the meeting arranged for 1 February 2010 with Mr Gordon and Mrs Burns on his own. He wanted to know, firstly, if there was any chance that he could return to the post at Foyleville and, secondly, if there were currently any other opportunities within the Trust. It was made clear to him, in response to his first query, that he would not be allowed to go back to Foyleville in the light of the medical opinion expressed by Dr Gamble. Mrs Burns told him that no suitable post had been identified for him since the December meeting, but that the search for such a post would continue. She had arranged that a colleague in Recruitment Section would review all recruitment exercises before they went out to trawl with this objective in mind. There was also discussions about whether the claimant would be eligible for Voluntary Early Retirement (‘VER’), but this option was not open as his post was still available, and he was not fit to perform its duties. Mrs Burns advised the claimant that at that stage ill-health retirement looked like his best option. We are satisfied that this was her view, expressed in good faith. It was not an attempt to pressurise the claimant into taking that course. It was not the only option and it has to be seen in the overall context the difficulty of finding a suitable post for the claimant. The search for a suitable alternative post was not abandoned, but continued until July 2010 when his employment ended. Unfortunately the posts at Band 7 level brought to Mrs Burns’ attention were all unsuitable because the claimant did not fill the essential criterion.

	(iv)	We are satisfied that at this meeting the claimant did not put forward any objections to, or arguments against, ill-health retirement. Mrs Burns asked the claimant if he would like to meet someone from HR to commence the paperwork for an application for ill-health retirement. He had travelled from his home in Donegal to Londonderry for the meeting, and she made this suggestion to save him having to come back to the Trust’s offices on another day. We are satisfied she made this suggestion to be helpful to, and to accommodate, the claimant and we reject any suggestions that it was indicative of an attempt to pressurise him into taking ill-health retirement and getting him to sign up for it, as it were, there and then. In any event, he would have to deal with other staff and as we have already indicated the processing and granting of ill-health retirement applications was a matter for HSC Pensions Services, not officers of the Trust. The claimant saw someone from HR and it appears that he completed the form that same day.

8.	(i)	The claimant’s application for ill-health retirement was submitted on 14 April 2010. Although he had filled in his part of the form after the February meeting, the completed application was delayed because Mr Gordon had not submitted a required statement on behalf of the employer. This was unfortunate and not satisfactory from the claimant’s point of view. However, it is totally inconsistent with any desire on the part of the respondent to force the claimant down the ill-health retirement route, and if the claimant did feel that was what was happening, it gave him further time to reflect and to change his mind.

	(ii)	On 24 May 2010, HSC Pensions Service wrote to the claimant stating that he did not satisfy the requirements set down in the Pension Scheme Rules for ill-health retirement. The claimant met Mrs Ward at Foyleville on 28 May 2010 – it was an unscheduled meeting – and asked her what was likely to happen as a result of this. By this stage he was becoming anxious about his financial circumstances and his ability to meet his obligations, particularly his mortgage repayments.

	(iii)	Mrs Ward advised him of his right of appeal. She also said that arrangements could be made for a review of his health by Occupational Health to see if he was fit to work elsewhere. She also requested estimates for the VER option, but was informed, for the reasons given at paragraph 7(iii) above, that this was not available to the claimant.

	(iv)	Arrangements were made for Dr Gamble to see the claimant on 28 July 2010. In the intervening period another Social Work Manager post (Band 7 within the Women and Children Directorate in the Recruitment and Assessment Team for Foster Care) was considered. However, he did not meet the essential criterion for that post. Dr Gamble was specifically asked to consider the claimant’s suitability for a Senior Care Assistant post in Thackeray Place, a residential care home for the elderly in Limavady.

	(v)	However, in the meantime, the claimant had appealed against the refusal of ill-health retirement and on 20 July 2010 HSC Pensions Service informed the respondent that he had satisfied the requirements of its Scheme with effect from 16 July 2010. His appeal had been successful and his employment had therefore terminated on that date. The claimant consequently did not attend the Occupational Health appointment with Dr Gamble on 28 July 2010. Also, in the meantime, Foyleville had closed on 14 June 2010. Its closure had been brought forward from September 2010 because of the small number of residents remaining in it.

9. Having determined the facts, we now set out the relevant law.

(i)

In relation to disability discrimination the relevant law is found in the Disability Discrimination Act 1995, as amended by the Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004.

Section 3A(5) of the Act prohibits direct discrimination. It provides:-

“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.”

(ii)

Direct disability discrimination therefore occurs where the person’s disability is the reason for the alleged less favourable treatment. Unlike disability-related discrimination it cannot be justified.

As far as the comparator in a direct disability discrimination case is concerned the appropriate comparator is someone who is not disabled, or who did not have the same disability as a claimant (ie in this case someone who was not mentally ill). See : London Borough of Lewisham v Malcolm [2008] IRLR 701 and the Disability Code of Practice (Employment and Occupation) paragraphs 4.8 and 4.13.

We have also borne in mind that direct disability discrimination often takes place where the employer makes assumptions, based on stereotypes, about a person’s disability and that this is particularly prone to take place in cases concerning mental illness. (See : Aylott v Stockton-on-Tees Borough Council [2010] EWCA Civ 90, CA.)

10. Section 3A(1) of the Act concerns disability-related discrimination. It provides:-

“(1) … a person discriminates against a disabled person if –

(a) for a reason which relates to the disabled person’s disability, he treated 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.”

There, the test of less favourable treatment is based on the reason for the treatment of the disabled person and not on the fact of his disability.

11.

(i)

The employer’s duty to make reasonable adjustments arises by virtue of Section 3A(2) and 4A(1). The latter provides:-

“Where –

(a) a provision, criterion or practice applied by or on behalf of a firm …

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

A failure to make a reasonable adjustment is not capable of being justified.

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 a 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, which applies to dismissal, is extremely wide in scope. This is clear from the judgment of Baroness Hale in Archibald v Fife Council [2004] IRLR 65.

(ii)

Archibald was a case concerning the position under the legislation of a disabled employer who had become incapable of doing the job for which she had been employed, but who could have done another job in the same organisation. Baroness Hall, discussing the transfer provision set out at Section 18B(2)(c), stated at p 660:-

“Section 18B(2)(c) merely refers to ‘an existing vacancy’. It does not qualify this by words such as ‘at the same or a lower grade’. It does refer to ‘transferring’ rather than ‘promoting’ her, but as a matter of language a transfer can be upwards as well as sideways or downwards.”

Notwithstanding the width of this provision, it is clear that the duty to make a reasonable adjustment is not limitless. At p 659, Baroness Hale stated:-

“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) …

… There is no positive duty other than addressing the impact of the disability on her ability to do a job which she is otherwise well-fitted to do. This duty cannot arise where the disability means that she cannot do the job at all and there are no adjustments to the arrangements for that job which can make any difference.”

(iii)

Regard must also be had to the guidance given to tribunals in Environment Agency v Rowan [2008] IRLR 20 (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 adjustment 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 identity 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.”

He continued:-

“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.”

(iv)

In Tarbuck v Sainsburys Supermarkets Ltd [2006] IRLR 664 (EAT), Elias J, as he then was, held that there was no separate and distinct duty on an employer or other person to consult with a disabled person, while emphasising that it will always be good practice to do so, and that failure to do so may jeopardise a respondent’s legal position. The question for the tribunal is an objective one, namely has the employer complied with its obligations to make reasonable adjustments (Ibid p 673).

12.

(i)

Section 17A(1C) sets out the burden of proof in disability discrimination claims. Following the now common formula 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 a 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.”

	(ii)	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 it out again in full, but have taken it fully into account. 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 proved 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. 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*.)

	(iii)	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.

	(iv)	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.”

13. In relation to time-limits under the Disability Discrimination Act a claimant can rely on the ‘just and equitable’ Rule to extend time for bringing a complaint. That Rule gives the tribunal a wide and unfiltered discretion to extend time in appropriate circumstances. At against that, time-limits become meaningless if they are not generally observed.

14.	(i)	The claimant’s claim for unfair dismissal is based primarily on constructive dismissal, though both sides accepted in the course of hearing that if the claimant were effectively forced to take ill-health retirement, this would be a dismissal by the employer. In relation to a claim of constructive dismissal an employee must show that the employer has been guilty of conduct which amounts to a fundamental or significant breach of the contract of employment, evidencing that he no longer intends to be bound by one or more of its essential terms, that the employee accepted that breach and resigned because of it, and that the employee did not waive the breach, thus affirming the contract. See : *Western Excavating (ECC) Ltd v Sharp [1978] ICR 221. It is for the employee to prove these matters. There may, of course, be more than one reason for the resignation of an employee, and in such circumstances it will be for the tribunal to decide what was the effective cause of his or her resignation – Jones v F Sirl & Sons (Furnishers) Ltd [1997] IRLR 493*.

	(ii)	In relation to time-limits in unfair dismissal claims the stricter ‘reasonably practicable’ test applies. This also applies to claims for unlawful deductions from wages, though where there are a series of deductions, time runs from the making of the latest deduction. The respondent accepts that a claim for constructive dismissal (but not ‘ordinary’ dismissal) is in time because of the extended time for lodging a grievance. It is accepted that the claim for breach of contract is in time. As far as the claim for breach of contract is concerned, we have borne in mind that at common law, an employee who is ready and willing to work is entitled to be paid his wages or salary, even though no work is available for him, subject to any contractual provision to the contrary.

15.	(i)	We deal firstly with the claimant’s claims under the Disability Discrimination Act 1995. We reject the respondent’s contention that allegations of direct disability discrimination and disability-related discrimination have not been included in the claimant’s application to the tribunal. It is clear to us that these matters arise out of the facts as pleaded. We are also satisfied that the claims under the Disability Discrimination Act are in time, as essentially they relate to matters which were continuing up to the termination of the claimant’s employment on 18 July 2010.

	(ii)	We dismiss the claimant’s claim of direct disability discrimination and disability-related discrimination. It was suggested, in submission on behalf of the claimant, that this was a case where the respondent made stereotypical assumptions about the claimant because of his mental illness. We find this very hard to accept. The respondent’s managers relied, as they were entitled to do, on the evidence of their Occupational Health adviser, Dr Gamble. We found Dr Gamble to be a most impressive witness, who acted at all time with the best interests of the claimant (of whom he had considerable professional experience) in mind. He reached a considered medical judgment about the claimant’s medical conditions – namely that a return to work at Foyleville would increase his susceptibility to a recurrence of his depressive illness. Dr Gamble reached this view independently, and is clearly someone who would not let anyone else influence his medical judgment. We accept what he says in his witness statement, namely:-

“I have taken [Mr Mullen’s] underlying medical condition into consideration at all times and advised the Trust regarding its likely conclusion under Disability Discrimination Legislation and, rather than discriminate against him in terms of his disability, I have made every effort to advise the Trust regarding reasonable accommodation in order to protect his health and retain him in the workplace.”

		He discussed his medical view with the Trust’s managers, and his discussion with them confirmed his fears. There is no evidence before us from which we can infer direct, or disability-related, discrimination. In the past the employer had always treated the claimant with proper consideration and with due regard to the provisions of the Disability Discrimination Act. He had had previous frequent absences because of his depressive illness and on those occasions he had always been accommodated with a pattern of phased returns. There is nothing to suggest that this would not have happened in respect of his last period of illness had it not been overtaken by the closure of Foyleville. There is no evidence that his previous absences were held against him, or that the employer had become unsympathetic because of those absences. They played no significant part in the discussions about the claimant in late 2009/early 2010. It is also inconsistent with allegation of disability discrimination that reasonable adjustments, or new roles for the claimant were being considered right up to the end of his employment, as evidenced by Dr Gamble’s letter to Mr Gordon of 28 October 2009 and 30 October 2009, and the fact that an Occupational Health review had been arranged with him after the claimant’s application for ill-health retirement had initially been turned down.

16.	(i)	We turn specifically to the respondent’s alleged failure to make reasonable adjustments. The employer was aware of its duty in this respect. While Dr Gamble may always have suspected that the claimant’s employment would terminate on the ground of ill-health retirement, he nonetheless frequently reinforced the employer’s obligations to consider reasonable adjustments throughout the relevant period. The respondent did actually consider a range of alternative posts of the claimant, albeit that from its point of view, there was a parallel process of ill-health retirement going on at the same time. Notwithstanding this, it continued to consider reasonable adjustments until the point of termination of the claimant’s employment. In general terms, the claimant did not meet the essential criteria of the posts which became available.

	(ii)	One adjustment to which we have given particular consideration is whether the claimant could have returned to work in a temporary capacity at the William Street Home, while the manager of William Street continued to perform the claimant’s duties at Foyleville. The respondent characterised this as a ‘temporary fix’, but as Mr Doherty, counsel for the claimant, submitted, a temporary fix is still a fix. If the option had been pursued, the claimant could have worked there for several months before Foyleville closed, and it may have increased his chances of obtaining VER, though we have no evidence if this would have been more financially beneficial to him than ill-health retirement.

	(iii)	However, although initially attractive, we consider that looked at objectively, a temporary secondment to William Street would not have been a reasonable adjustment. The residents of Foyleville were being transferred to William Street, and it seems to us inevitable that some of the controversy and pressures surrounded with the closure of Foyleville would have also have been present at William Street. It would not have been an effective solution, and there must have been some risk to the claimant’s health if he were seconded to William Street.

17.	(i)	We dismiss the claimant’s claim of unfair dismissal. As far as ordinary unfair dismissal is concerned the claim is out of time, and there is no evidence before us which would provide any justification for extending time. In any event, such a claim must fail on the merits, for there is no evidence before us to show that the employer, in effect, forced him to take ill-health retirement in the sense that his will was overborne to the extent that he could not make an effective choice himself.

	(ii)	We are also satisfied that a claim for unfair dismissal based on constructive dismissal must fail. There was no breach of the implied duty of mutual trust and confidence on the part of the employer. Ill-health retirement was presented to the claimant as an option and nothing more. It was an option which had been discussed with him by Dr Gamble. We accept that it was far from the claimant’s preferred option, but the evidence before us shows that it was ultimately his decision, made of his own freewill without any pressure from the employer, as opposed to the pressures of the circumstances in which he found himself. The ill-health retirement process was unfortunately protracted, involving rejection of the application and an appeal, and the claimant had ample opportunity to draw back from it at any stage. Insofar as the constructive dismissal claim contains an allegation that the respondent was in breach of contract by failing to pay the claimant’s wages, we are unable to accept this. Although the claimant was himself prepared to return to work on 5 July 2009, following the advice of his own GP, the employer’s Managing Attendance at Work policy, which is part of his contract of employment, makes it clear that an employee who had been off work for a prolonged period could only return to work when given the go-ahead by Occupational Health. This contractual provision varies that the normal common law rule that an employee who is ready and willing to work is entitled to be paid wages or salary. For this reason also, the claimant’s claims of breach of contract and unlawful deduction from wages are also dismissed.

18. We therefore dismiss all the claimant’s claims.

Chairman:

Date and place of hearing: 19 – 23 September 2011, Belfast

Date decision recorded in register and issued to parties:

ANNEX

THE INDUSTRIAL TRIBUNALS
CASE MANAGEMENT DISCUSSION

CASE REF: 2451/10
2690/10

CLAIMANT: Martin Mullen

RESPONDENT: Western Health and Social Care Trust

DATE OF HEARING: 29 March 2011

REPRESENTATIVES OF PARTIES:

CLAIMANT BY: Ms R Best, Barrister-at-Law, instructed by Copeland McCaffrey Solicitors

RESPONDENT BY: Mrs E Ward, Solicitor, of the Directorate of Legal Services

_______________________________________________________________________
Case Management Discussion
Record of Proceedings

_______________________________________________________________________

The purpose of this Case Management Discussion was to:-

(a) identify the precise issues which the Tribunal has to consider;

(b) consider the use of witness statements and their exchange; and

A Issues

The legal and main factual issues have been identified and are set out in the document attached hereto marked “Draft legal and factual issues”. As can be seen at paragraph 3 of the legal issues there is a dispute as to whether the claimant’s claim form includes a complaint of direct disability discrimination. In the interests of the overriding objective and to save costs, by consent, I granted the respondent leave to lodge an amended response by 13 April 2011 and I direct, by consent, that any issue with regard to whether this is a valid complaint or whether the claim can be amended to include it can be dealt with at the actual hearing.

lTlOA-CMD

B Interlocutory Matters

Ms Ward and Ms Best confirmed that Discovery had been exchanged. Ms Ward undertook to respond to the claimant’s Notice for Additional Information by 1 April 2011. Ms Ward also undertook to serve a Notice for Additional Information on the claimant in relation to the alleged claim of direct disability discrimination by 13 April 2011 and Ms Best undertook to respond by 20 April 2011.

Ms Ward indicated that there were some outstanding issues with regard to the claimant’s replies to the respondent’s Notice for Additional Information but that she and Ms Best consider that they could be resolved without recourse to the tribunal.

C Orders

In accordance with Rule 10(1) of the Industrial Tribunals Rules of Procedure 2005, I make the following orders, by consent:

1 Witness Statements

(a) The claimant and any witness he wishes to call must provide a witness statement to the respondent’s representative by

3 May 2011.

(b) The respondent and any witness it wishes to call must provide a witness statement to the claimant’s representative by

31 May 2011.

(c) If the claimant or any of his witnesses wishes to respond to any evidence given in the respondent’s witness statements, he must provide a supplementary witness statement to the respondent’s representative by 14 June 2011.

(d) A witness statement must be a complete statement of the evidence, relating to the issues in the case, that the witness wishes to give to the Tribunal. A witness will not be permitted to add to his statement without the consent of the Tribunal. Consent will only be given where there is good reason for doing so.

(e) By consent the tribunal will read all the witness statements on the first day of the Hearing and the evidence will proceed by way of cross-examination on the second day of the Hearing. The parties do not therefore need to attend on the first day of the Hearing.

2. Schedule of Loss

The claimant must provide to the respondent’s representative a schedule of all financial loss claimed by the claimant, selling out in particular the nature and amount of any such loss claimed and how that sum is made up, by 3 May 2011.

lTlOA-CMD

3. Bundles

Three agreed bundles, paginated and with a proper index, of all relevant documents including the witness statements, with numbered paragraphs, must be lodged in the Office of the Tribunals by 12 September 2011. Any documents referred to in the witness statements must be identified by page number in the bundle. One further set of the bundle must be brought to the Office of the Tribunals not later than 9.30 am on the first day of the hearing.

4. Date of Hearing

By consent the Hearing will be listed from Monday 19 to Friday 23 September 2011 unless alternative dates during September 2011 are provided to the tribunal by 5 April 2011. As set out above the parties do not need to attend the tribunal until Tuesday
20 September 2011 as the tribunal will read all the witness statements on Monday 19 September.

______________________
E McBride CBE
President

Date: 30 March 2011

Notice

1. If any party fails and/or is unable to comply with any of the above Orders, any application arising out of such failure or inability to comply must be made promptly to the Tribunal and in accordance with the Industrial Tribunals Rules of Procedure 2005.

2. Failure to comply with any of these Orders may result in a Costs Order or a Preparation Time Order or a Wasted Costs Order or an Order that the whole or part of the claim, or as the case may be, the response may be struck out and, where appropriate, the respondent may be debarred from responding to the claim altogether.

3. Under Article 9(4) of the Industrial Tribunals (Northern Ireland) Order
1996, any person who, without reasonable excuse, fails to comply with a requirement to grant discovery and inspection of documents under Rule 10(2)(d) of the Industrial Tribunals Rules of Procedure 2005 shall be liable on summary conviction to a fine not exceeding Level 3 on the standard scale - £1,000 at 3 September 2007, but subject to alteration from time to time.

4. A party may apply to the Tribunal to vary or revoke any of the above Orders in accordance with the Industrial Tribunals Rules of Procedure
2005.

lTlOA-CMD

CASE REF NO. 2690/10IT,2451/10IT

INDUSTRIAL TRIBUNALS (CONSTITUTION AND RULES OF PROCUDURE) REGULATIONS (NORTHERN IRELAND) 2005

BETWEEN:

MARTIN MULLEN

Claimant

AND

WESTERN HEALTH AND SOCIAL CARE TRUST

Respondent

_______________________________________________________________________________

DRAFT LEGAL AND FACTUAL ISSUES

_______________________________________________________________________________

LEGAL ISSUES

1. Whether the Claimant meets the statutory definition of disabled as set out in the Disability Discrimination Act 1995
(as amended).

2. If so, whether the Respondent failed to make reasonable adjustments in relation to the Claimant’s disability contrary to the Disability Discrimination Act 1995 (as amended)?

Whether the claim form includes a complaint of dual disability discrimination & if so

3. Whether the Claimant was less favourably treated on the grounds of
his disability, than [comparator to be named], by the ~~1st~~ Respondent contrary to the Disability Discrimination Act 1995 (as amended)?

Whether the Claimant was less favourably treated by the
Respondent and if so whether the Claimant was treated less
favourably by the Respondents for a disability related reason
contrary to the Disability Discrimination Act 1995 (as amended)?

NB — the Respondent does not accent that the above two
paragraphs have been pleaded and are issues to be heard. Paragraph(3)

4. Whether the Claimant suffered unlawful deductions from wages/ breach of contract?

5. Whether the Claimant was unfairly (constructively) dismissed by the Respondent.

6. If so, was there a fundamental breach to the Claimant’s contract which led to his decision to resign and claim constructive dismissal?.

7. Whether the Claimant’s claim for disability discrimination has been issued within the statutory time limit. If not, whether it is just and equitable to extend this time.

8. Whether the Claimant’s claim for unlawful deductions has been issued within the statutory time limit.

9. Whether the Claimant’s claim for unfair (constructive) dismissal has been issued within the statutory time limit. If not, whether it was reasonably practicable for the Claimant to have done so.

FACTUAL ISSUES

1. Whether the Claimant was fit to return to work.

2. If so, whether he was fit to return to his previous position.

3. If not, whether there were any other posts available

4. Whether there were any posts available upon the Claimant’s return from sick leave?

5. If so, whether these posts were suitable posts?

6. Whether the Claimant was forced to resign/apply for ill-health retirement by the Respondent?

7. Whether the Respondent evaluated adequately or at all the Claimant’s position as Officer in charge of Foyleville Care Home and his alleged disability?

8. Whether the Respondent made reasonable adjustments to enable the Claimant to return to work?

9. Whether redeployment was considered to be an option by the Respondent?

10. If it was not considered to be an option why was redeployment not considered to be an option by the Respondent?

11.Whether the Claimant proposed a lower grade post and if so, whether the Respondent considered this as acceptable?

12.If the Respondent did not consider this as acceptable why was it not considered to be acceptable?

13.Whether the Claimant was told that the only option for him was “ill-health” retirement?

14.If so why was he told that the only option for him was “ill-health” retirement?

15.What steps, if any, did the Respondent take in searching for other posts for the Claimant?

16.What evaluations, if any, did the Respondent make about making any reasonable adjustments for the Claimant?

17.What independent/ expert advice did the Respondent take, if at all, in relation to any reasonable adjustments for the Claimant?

18.What independent/expert advice did the Respondent take relating to the Claimant’s mental health illness?

19. Whether the Claimant was consulted or kept informed by the Respondent, adequately or at all, of the process of his return to work or dismissal?

20. Whether the Claimant was given an indication by the Respondent, its servants or agents, that he would receive full pay as he had been certified by his GP as fit to return to work?

21. Whether the deductions from the Claimant’s wages beginning in November 2009 without his consent were unlawful and a breach of his contract?

22. Whether the Respondent failed to provide the Claimant with all the information it used to make the decision regarding ill-health
if so, why has the Respondent and/or Dr Gamble, its servant or agents failed to provide the Claimant with all the information they used in making the decision regarding ill-health?

23.Why was the Claimant not informed or offered the position of Officer in charge of Seymour Gardens Care Home, Nelson Drive?

24.Did the Claimant or could the Claimant have met the essential
criteria for this Position?

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Mullan v Western Health & Social Care T... Western Health & Social Care T... [2012] NIIT 02451_10IT (20 January 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/02451_10IT.html Cite as: [2012] NIIT 02451_10IT, [2012] NIIT 2451_10IT

Industrial Tribunals Northern Ireland Decisions