Mimna v Department for Employment & Le... [2012] NIIT 02046

THE INDUSTRIAL TRIBUNALS

CASE REF: 201/12

CLAIMANT: Roisin O’Neill

RESPONDENTS: 1. Barnado’s

2. Diane Winters

3. Kerry-Ann Van Niekirk

4. Dean Taylor Pogue

DECISION

The unanimous decision of the tribunal is that the first-named respondent failed in its duty to make reasonable adjustments in relation to a meeting on 20 October 2011 and compensation of £5,000.00, being injury to feelings, is awarded to the claimant. All other claims, including the claims against the second, third and fourth-named respondents are dismissed.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Ms M Torrens

Ms M Trimble

Appearances:

The claimant was represented by Mr P Keogh.

The respondents were represented by Ms L Corey, Barrister-at-Law, instructed by Greenwoods Solicitors LLP.

Background

1. The claimant had an accepted cardiac disability within the meaning of the Disability Discrimination Act 1995 (‘the 1995 Act’) and alleged a further disability. That further disability was variously described as learning difficulties, difficulty with numeracy or literacy and/or dyslexia.

2. The claimant had been employed for two separate periods by the first-named respondent. Latterly she had been employed as a shop assistant by the first-named respondent for 28 hours per week. Following the covert installation of a CCTV camera in the shop premises, the claimant was called to a meeting on 20 October 2011 without any prior notice of the subject of that meeting and without prior notice of any concerns about her conduct. In the course of that meeting, her conduct was queried. At the end of that meeting she was suspended pending a disciplinary investigation.

3. The claimant subsequently lodged a grievance which was not upheld at first instance or on appeal.

4. The claimant alleges that the conduct of the first-named respondent in relation to the meeting on 20 October 2011, her suspension from duty and the treatment of her grievance, amounted to direct disability discrimination, disability-related discrimination or a failure to make a reasonable adjustment, contrary to the 1995 Act.

5. The respondents now accept that the claimant had a cardiac disability within the meaning of the 1995 Act at the relevant times; but allege that they had not been aware of any such disability at those times. They further dispute the existence of the second alleged disability, ie the alleged disability described as a learning disability. The respondents deny discriminating against the claimant on any prohibited ground and deny failing to make any required reasonable adjustment.

Issues

6. The issues before the tribunal to determine can be summarised in the following manner:-

(i) Whether the claimant had a disability, described as a learning disability, at the relevant times?

(ii) Whether the respondents’ actions in failing to commission an Occupational Health report on the claimant, in the installation of the CCTV cameras, in relation to the meeting on 20 October 2011, in relation to her suspension from duty or in relation to her grievance amounted to unlawful discrimination or a failure to make a reasonable adjustment contrary to the terms of the 1995 Act?

Relevant law

Disability Discrimination

7. Section (1) of the Disability Discrimination Act 1995 provides:-

“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 day-to-day activities.”

8. Paragraph 4(1) of Schedule 1 to the Act provides that an impairment is only to be taken as effecting the ability of the person to carry out normal day-to-day activities if it affects one of certain specified activities. The relevant activities for the purposes of the present case and the alleged learning disability are ‘memory or ability to concentrate, learn or understand’.

9. The onus is on the claimant to prove that, in the relevant period, when the alleged acts of discrimination took place, she was disabled, in the manner alleged, for the purposes of the 1995 Act. In Ross v Precision Industrial Services Limited and DuPont NICA 2005, Kerr LCJ stated at Paragraph 39:-

“The onus of establishing that he was substantially affected in manual dexterity and lifting ability rested squarely on the appellant.”

10. In Goodwin v Patent Office [1999] IRLR 4 the EAT directed tribunals to answer four questions in determining whether an individual is disabled for the purposes of the 1995 Act:-

(a) Does the claimant have an impairment which is either mental or physical?

(b) 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 and does it have an adverse effect?

(d) Is the adverse effect long-term?

11. Section 18B of the Act provides that:-

“(1) Where –

(a) a provision, criterion or practice applied by or on behalf of an employer, or - places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, - having that effect.”

12. Section 17A(1) of the Act provides that where a claimant proves facts from which the tribunal could, apart from that 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 that he did not so act. The EAT in Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 suggested that in a reasonable adjustments case, the burden of proof will shift if an adjustment could reasonably have been made and it would then be up to the employer to show why it had not been made.

13. The Employment Appeal Tribunal in the case of Project Management Institute v Latif [2007] IRLR 579, when dealing with a reasonable adjustment case concluded that:-

“The paragraph in the DRC’s Code is correct. The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably have inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing substantial disadvantage envisages the duty but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made. That is not to say that in every case the claimant would have to provide the detailed adjustment that would need to be made before the burden would shift. It would, however, be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage that the question of whether it could be reasonably be achieved or not.”

14. The Code of Practice issued by the Equality Commission provides at Paragraph 5.8 that the duty to make reasonable adjustment applies to contractual arrangements and working conditions. Paragraph 5.11 states that substantial disadvantages are those which are not minor or trivial.

15. In relation to the shifting burden of proof, the Code provides at Paragraph 4.43 that:-

“To prove an allegation that there has been a failure to comply with the duty to make reasonable adjustments, an employee must prove facts from which it could be inferred in the absence of an adequate explanation that such a duty has arisen and that it has been breached .If the employee does that, the claim will succeed unless the employer can show that it did not fail to comply with its duty in this regard.”

16. In the House of Lords decision in London Borough of Lewisham v Malcolm [2008] UKHL 43, Baroness Hale stated at Paragraph 86:-

“I agree with Lord Bingham that to establish liability for the statutory tort of discrimination against a disabled person, it is necessary to show that the alleged discriminator either knew or ought to have known of the disability (not, of course, that in law it amounted to disability within the meaning of the Act). This not only accords with principle. It also accords with the language of the Act in two says. First, the alleged discriminator is liable if he cannot show that the treatment in question is justified; Section 24(1)(b). Justification depends on his having formed an opinion that one of the specified justifications exists; Section 24(2). He could not do that without knowing of the disability. Secondly, although the DDA does not adopt the language of the sex and race discrimination legislation, which talks of less favourable treatment ‘on grounds of’ race and sex, it does require a relationship between the treatment and the disability. This suggests that the person doing the treatment must have at least the means of knowing about that relationship.”

The hearing

17. The hearing was over three days from 16 October 2012 – 18 October 2012. The parties had submitted and had exchanged witness statements in accordance with directions of the tribunal. Those directions had been given at an earlier Case Management Discussion.

18. The claimant’s representative, Mr Keogh, made it plain that he had had significant input into the preparation and into the wording of the claimant’s witness statement. This raises a serious issue. Witness statements, in this context, are meant to be the witness’ evidence-in-chief in written form. The witness statements must be the evidence of the witness concerned and must not be, generally, ‘edited’ or ‘altered’ by any other person. This is particularly the case when the other person is the representative of one side or the other.

19. The claimant alleges in this case that she suffers a learning disability within the meaning of the 1995 Act and argues that some ‘editing’ or ‘assistance’ was required in the preparation of her witness statement.

20. This is an issue which should have been raised by the claimant’s representative at the earlier Case Management Discussion in the context of a proposed reasonable adjustment by the tribunal in relation to an alleged disability. It may have been that specific further medical evidence would have been directed. Alternatively, it may have been that oral evidence-in-chief would have been directed for the claimant. That would have had implications for the length of the hearing. However, the issue was not raised at the appropriate time by the claimant’s representative and the tribunal is left with a witness statement for the claimant which must be scrutinised carefully and in the knowledge that it was prepared with the specific input of her representative.

21. The respondents did not raise any particular issue in this point and, in the circumstances of this case, the tribunal decided to proceed with the claimant’s witness statement as it was written.

22. The evidence on behalf of both the claimant and the respondents was given by way of written statements and then by cross-examination and re-examination. It was strictly timetabled by the tribunal. However, significant extensions to that timetable were given, primarily in favour of the claimant, as the case progressed.

23. The claimant gave evidence on her own behalf. The claimant’s representative, Mr Keogh, produced a detailed witness statement of his own evidence, that he had prepared. That statement was produced on the first day of the hearing. It had not been exchanged in accordance with the timetable laid down by the directions of the tribunal given at an earlier Case Management Discussion. The statement prepared by Mr Keogh contained very little actual evidence, which could have been of potential relevance to the claim. Following discussion, the panel declined to consider that statement on the grounds of non-compliance with the tribunal’s directions and on the ground of lack of relevance. Introducing that statement and allowing cross-examination of Mr Keogh, at the last minute, would have had the effect of lengthening the hearing and of therefore requiring the reconvening of that scheduled hearing. It would have also have involved the practical difficulties of a representative for one party being cross-examined by the other side. The marginal relevance of the statement was such and the non-compliance with directions was so clear, that the statement was not considered by the tribunal in reaching its substantive decision. It was not admitted into evidence and was not subject to cross-examination.

Four witnesses gave evidence on behalf of the respondents in compliance with directions:-

Ms Kerry-Ann Van Niekirk;

Ms Diane Winter;

Ms Lindsay Harris; and

Ms Marie Williams

24. The tribunal was provided with one Lever Arch folder of documents to which some documents were added, in the normal course of events, during the course of the hearing. There was also a separate folder of witness statements.

25. After the evidence from both parties, the parties were directed to exchange written submissions in sequence. Since Mr Keogh was not legally qualified, the respondents were to provide their written submissions first and the claimant would follow thereafter. If the respondents were to be caught unawares by any argument within the claimant’s written submission, the respondents were to notify the tribunal and the claimant accordingly. A final timetable was then to be fixed for final written submissions. In the event, the respondent claimed to have been caught unawares by some aspects of the claimant’s submission and final written submissions from each side were allowed by 5.00 pm on 9 November 2011. In the event, only the respondents submitted a further submission.

26. The panel met on 23 November 2012 to consider the evidence, the submissions and to listen to the audio recording of the hearing as necessary. The panel then reached an unanimous decision as set out in this decision.

Disability

27. As indicated earlier in this decision, the respondents have accepted that at the relevant times, the claimant suffered from a cardiac condition amounting to a disability within the terms of the 1995 Act. The relevant times in this case would appear to be from 20 October 2012 to the lodgement of the claim form.

28. As a general point, it is always preferable, that parties, who are seeking to allege or to deny the existence of a relevant medical condition which might amount to a disability for the purposes of the 1995 Act, should produce clear medical evidence to support their position. It is also clear that this is a particular requirement for a claimant when that claimant is alleging, unlike the present case, that there is a deduced effect that the tribunal should consider, ie where the claimant is alleging a particular adverse condition which might exist if a certain medical treatment were not to be followed. Nevertheless, however desirable, it is clear that it is not a specific and universal requirement that medical evidence must be provided in every case to substantiate or to deny the existence of a particular disability. It is, however, equally clear that the onus of proof rests initially on the claimant to establish that a particular disability exists. It is also equally clear that the tribunal must be able to expect a claimant to address this matter seriously and to furnish relevant medical evidence, if such evidence exists.

The tribunal makes its decision on this point, having had regard to the onus of proof and on the balance of probabilities.

29. Neither party to the present case produced any direct and current medical evidence on the issue of an alleged learning disability. No doctor or educational psychologist was produced by either the claimant or by the respondents for cross-examination after having submitted a witness statement. The claimant produced no relevant GP notes or hospital records, which could perhaps have included a relevant referral to an educational psychologist, a relevant course of treatment or a relevant consultant’s report. The closest that the claimant comes to this is a letter from a consultant paediatrician dated 16 January 1975 which describes her arithmetic as ‘long behind her chronological age’. She was 9 years old. There was no finding of dyslexia. The panel has not been referred to any educational psychologist report even though that letter from 1975 suggests a referral to an educational psychologist should have been made. We were not referred to a statement of special educational needs. If the claimant had a longstanding condition, described as a learning disability and if that had been sufficient to qualify as a disability under the 1995 Act, the very least that a tribunal would expect to see would be either an educational psychologist report or a statement of special educational needs.

30. The respondents’ Occupational Health report of 27 June 2012 simply does not mention any allegation of a learning disability. Since the Occupational Health doctor was not produced to give evidence, by way of an initial witness statement and by subsequent cross-examination and re-examination, the tribunal does not know why there was no such reference in her medical report.

31. The claimant produced an e-mail, which was not specifically rebutted by the respondents, dated 27 April 2012. That e-mail appears to have emanated from a lecturer in a further education college who had delivered an Essential Skills Course which had been attended by the claimant during 2005 and 2006. There was no specific indication of the qualifications held by that individual, ie Ms Fiona Terrins, in this area and again that witness was not produced by way of witness statement, cross-examination and re-examination to the tribunal. However, she states in her e-mail:-

“Roisin has profound learning difficulties with both literacy and numeracy, to her credit has applied to attend basic English lessons and Mathematics lessons to overcome these difficulties by seeking help and assistance with her mathematics. To that end she has achieved Level 2 in Communication Essential Skills in June 2006. There [sic] was a great achievement for this individual as Roisin is a dyslexic student. Later Roisin re-enrolled to do her Essential Skills Numeracy in 2007-8 and got a level 1 Certificate that year. Roisin has SEN special learning needs and struggles with her numeracy skills on a daily basis in life and in work.”

32. It is not sufficient, in terms of the 1995 Act, for an individual to establish simply that he/she suffers from a long-term medical condition which has an adverse impact on day-to-day activities, such as concentration, learning, understanding, etc. The requirement is that any such adverse impact must be substantial and must affect certain matters. It is therefore not the case that every individual who has a difficulty with mathematics or with reading or writing will have a relevant learning disability and will qualify for the specific protection afforded by the 1995 Act. It seems to be common case that the claimant had difficulty, particularly with numeracy. It is also common case that she had difficulty in reaching final totals when cashing-up at the end of working shifts. That, of itself, does not mean that she was ‘disabled’ for the purposes of the 1995 Act. Many people have difficulty with mathematics; they are not necessarily ‘disabled’. As against her obvious difficulties, the claimant had worked for approximately 10 years in the interval between the two periods of employment with the first-named respondent. She worked during those seven years as a filling station worker with cash-handling responsibilities. It is also clear that during two significant periods of employment with the first-named respondent the claimant was able to cope with her duties. It is also clear that she managed to acquire certain educational qualifications in communication essential skills at Level 2 and in numeracy essential skills at Level 1.

Bearing in mind the onus of proof which is placed on the claimant in this regard, the tribunal is not in a position where it can conclude on the evidence before it and on the balance of probabilities, that the claimant, in respect of an alleged learning disability, suffered a disability which is a relevant disability for the purposes of the 1995 Act.

Relevant findings of fact

33. The claimant has a congenital heart condition which amounts to a disability for the purposes of the 1995 Act.

34. The claimant worked in retail for the first-named respondent between 1995 and 1997 on the ACE Scheme. She was then employed in a similar capacity as a shop assistant in various filling stations for approximately 10 years. In February 2007, the claimant started work again for the first-named respondent as a shop assistant.

35. That post had been intended to be filled on a standard basis of 21 hours per week. On learning that the first-named respondent was in the practice of engaging full-time shop assistants on that basis, the claimant queried that position with her then local manager, now named as the second-named respondent. On the initiative of that local manager, the second-named respondent, the post to be filled by the claimant was exceptionally upgraded to 28 hours per week. She was also given additional shifts, where possible, in another branch.

36. The claimant alleges that she had been promised, at the start of her employment, that her post would be increased to 35 hours per week and that this promise had never been fulfilled. The tribunal has not been shown any documentary evidence of the alleged request or of the alleged promise. The allegation is rebutted by the first-named respondent and by the second-named respondent. If such a request had been made by the claimant, or if a promise, as alleged, had been made by the second-named respondent or if indeed it had been raised subsequently by the claimant on a repeated basis, the tribunal would have expected to see a consistent record of that issue leading to the specific use of the grievance procedure. The tribunal has seen no such evidence and therefore concludes, on the balance of probabilities, that whatever the hopes of the claimant had been in this regard, no such promise had been made to her by the second-named respondent, or by anyone else on behalf of the first-named respondent. It also concludes that there had been no repeated requests or pattern of requests from her to the second-named respondent or to anyone else within the organisation of the first-named respondent for a permanent position at 35 hours per week.

It is important, in any event, to remember that this tribunal is not a forum within which to ventilate generalised grievances. Even if there had been a broken promise in relation to working hours, there was no evidence upon which any inference of unlawful discrimination could properly be drawn in that respect. It is common case that the first-named respondent, through the second-named respondent, sought out the claimant to offer her a second period of employment. It is equally common case that the claimant’s hours were increased from the 21 hours on offer to 28 hours per week and that additional shifts in other branches were made available when possible. These are not the actions of a respondent employer or manager who is prepared to treat someone differently, or less well than they should have done, in relation to hours of work.

37. A disciplinary issue occurred in 2008. That issue resulted in the claimant receiving a full and final warning. The tribunal is unable to understand how this is relevant to the current issues. No request has been made by or on behalf of the claimant to extend time in this regard to permit a separate discrimination claim to be made in respect of what had occurred in 2008. No evidence has been produced by or on behalf of the claimant which is sufficient to establish a consistent pattern of behaviour leading from 2008 up to 2011. Furthermore, the disciplinary charge and the disciplinary penalty were not challenged by the claimant at the relevant time, ie in 2008. While this was an issue which was raised by the claimant in evidence, it was not an issue pursued by her in the final written submissions. No evidence has been produced on which a reasonable tribunal could, in any event, infer unlawful discrimination or unlawful activity for the purposes of the 1995 Act in this regard.

38. The second-named respondent was promoted from line manager to area business manager in 2009. Thereafter, any contact between her and the claimant was intermittent and fleeting. The claimant’s primary contact thereafter was with her new line manager, the third named respondent.

39. The second-named respondent was replaced as local line manager in 2009 by the third-named respondent. The claimant, in her evidence, queried aspects of her performance appraisal reports while praising or expressing satisfaction with other aspects of those reports. However, no appeals and no grievances were lodged at the relevant times in relation to any aspects of those reports. Again, although raised in evidence, the reports did not feature in the final written submissions and there is no evidence upon which an inference of unlawful discrimination can be drawn in this respect.

40. The claimant alleges that in 2010 and 2011, she tired easily. She further alleges that her cardiac condition was well-known within the respondent’s organisation and known to her line manager. The respondents dispute this. However, it is clear that the claimant attended hospital for tests in June 2011 in relation to her cardiac condition. Those tests resulted in her taking a week off work and in her avoiding lifting weights for a further period. Again the position of the respondent was that clear medical evidence had not been provided by the claimant to establish a cardiac condition. When her medical condition was raised in conversation in the workplace, she had given different explanations. The tribunal concludes, on the balance of probabilities, that the claimant may have given different descriptions of how her medical condition affected her. However, it is clear to the tribunal that her line manager, the third-named respondent, did not refer the claimant at that point to the respondents’ Occupational Health Adviser for an opinion. She further did not seek any formal or written confirmation from or on behalf of the claimant of her precise medical condition and of the precise risk that her presence in work posed to herself and to others. It is significant that the second-named respondent had indicated in a later grievance procedure that the third-named respondent had told her that she would do so.

41. It therefore seems to the tribunal clear, on the balance of probabilities, that the first-named respondent, through its line manager, knew or should have known of the claimant’s cardiac medical condition and knew or should have known that the medical condition would probably have amounted to a disability. That line management knew of the hospital tests and knew of the forthcoming surgery. The fact that the first-named respondent and her line manager did not make specific queries of the extent and nature of that condition, while being aware that it involved hospital tests and indeed subsequently a hospital operation, is disturbing. It indicates a lack of care on behalf of the first-named respondent as an employer.

42. In this respect, it is also clear that the claimant, on one occasion during the summer of 2011, was notified by telephone from her hospital that she was required to attend for surgery. She became so upset at this news that her line manager sent her home. Again, no further queries were made by her line manager or by her Area Branch Manager in relation to her precise medical condition and in relation to the medical risks posed to herself and to others.

43. The claimant attended work on 20 October 2011. There is a dispute about the precise wording used to the claimant and the precise circumstances in which it was used. However, it seems clear that, without prior warning, the claimant was taken into a meeting, attended by the second-named respondent, who was there as a note taker, and by the fourth-named respondent who was an employee of a private security company, Secondeye. At that meeting she was informed, again without any prior warning, of her right to ask for an accompanying individual. In the circumstances, the claimant initially declined that offer. The claimant’s conduct in relation to certain matters was queried in the course of this meeting. The claimant became upset and asked to be allowed the opportunity to take further advice from her brother-in-law, her current representative. She left the meeting. The matter was then referred to a disciplinary investigation. No consideration appears to have been given by the first-named respondent of the possibility of reconvening this meeting to facilitate representation for the claimant. The meeting appears to have been an investigatory meeting of some sort. The respondents attempted to resist that description of the meeting, but it is difficult to see what other purpose of this meeting might have had. The subject-matter of the meeting, the presence of the Area Business Manager as a note taker, and the offer of representation all point inexorably towards that conclusion. It was not an informal or a neutral meeting.

44. The meeting was arranged some six days in advance to ensure the fourth-named respondent’s availability and on a day on which the claimant was working. The tribunal are content that the police were mentioned during this meeting and that the context of the meeting was clear to all concerned. The possibility of theft was being considered. The fourth-named respondent did not give evidence. The second-named respondent’s evidence and the notes do not indicate that there had been a reference to ‘frogmarching’ or to the proximity of the police station. The claimant’s evidence differs on this point. On the balance of probabilities the tribunal concludes these remarks were not made. It seems highly unlikely that the meeting would have been conducted in this way. The tribunal notes that the claimant did appear to become confused in her evidence and, again on the balance of probabilities, prefers the documentary evidence and the evidence of the second-named respondent on this point.

45. The claimant lodged a grievance about her treatment. This was rejected.

46. That grievance was considered at a meeting on 16 November 2011 by a Ms Lindsay Harris who was assisted by a Mr Richard Browne. The first-named respondent had agreed to alter its existing policy to allow the claimant to be represented by her brother-in-law, Mr Keogh, who was not a fellow employee or a trade union representative.

47. The grievance was against the second-named respondent and the fourth-named respondent. It had been prepared with the assistance of Mr Keogh and was contained in a letter dated 20 October 2011. In essence, it queried the claimant’s treatment at the meeting on 20 October 2011.

48. That grievance meeting concluded and eventually minutes were agreed. Ms Harris interviewed the second-named respondent, third-named respondent and the fourth-named respondent by the telephone conference call.

49. On 5 January 2012, Ms Harris dismissed the 12 individual matters raised by the claimant.

50. The claimant lodged an appeal against that decision by a letter of 17 January 2012.

51. The appeal was heard by a Ms Marie Williams on 31 January 2012. Ms Williams was assisted by a Ms Valerie Lindsay who acted as a note taker. The claimant again attended and was represented by Mr Keogh.

52. Ms Williams decided that only three of 11 grounds of appeal were relevant and addressed only those grounds. Those grounds were:-

(i) only the claimant had not been informed in advance of the purpose of the interview;

(ii) whether the investigation procedure should have been adjusted as a result of the claimant’s disability; and

(iii) whether it was appropriate for the fourth-named respondent to interview the claimant.

53. It seems common case that the claimant’s representative disagreed with the conduct of the appeal hearing and that he left with the claimant at an early stage. The appeal was rejected.

Decision

54. The claimant has alleged, in evidence, that she had been bullied by the second-named respondent who had initially been her line manager. Any such behaviour, as alleged, by the second-named respondent must have ceased when the second-named respondent ceased to be her line manager and that occurred approximately in 2009. There is no evidence of any continuing pattern in discrimination or of harassment in the period from 2009 – 2011. Therefore, these allegations do not form a separate and distinct part of any claim before the tribunal. They do not feature in the final written submissions. Insufficient evidence has been adduced on which a reasonable tribunal could draw an inference of unlawful activity in this respect and in any event any alleged behaviour is substantially out of time. There are no grounds in which it would be just and equitable to extend the time-limit even if leave had been sought.

55. There is no evidence to support the claimant’s allegations against the third-named respondent. The job appraisal reports completed by the respondent were not queried at the appropriate time and were, in any event, broadly favourable. The third-named respondent’s doubts about an unsigned medical report were reasonable doubts and there is no evidence on which a reasonable tribunal could properly infer unlawful discrimination by her in that respect. This respondent took no active part in the arrangement or conduct of the meeting on 20 October 2011 which could have amounted to harassment or other unlawful activity.

56. The tribunal concludes that there are no grounds, upon which the tribunal could properly infer unlawful discrimination had taken place against the claimant in relation to the placing of CCTV cameras and in relation to the initial investigation undertaken by Secondeye. It seems clear that the first-named respondent’s practice in this regard was not to notify individuals of pending investigations to be conducted by Secondeye, the private firm contacted by the first-named respondent and equally clear that the placing of those CCTV cameras was conducted on a random basis. That evidence has not been rebutted. There is nothing upon which a reasonable tribunal could infer that the placing of those cameras or the decision to hold the interview on 20 October 2011 was linked in any way to her cardiac disability. There is no evidence of any reasonable adjustment which could or should have been made in these respects. For example, it would not have been reasonable to exempt any retail premises from CCTV coverage if a disabled employee worked there.

57. In relation to the actual conduct of the meeting on 20 October 2011, although it seems clear that the allegations were put in a very forthright form to the claimant, there is no evidence on which a tribunal could properly unlawful discrimination or a lack of a reasonable adjustment in this regard. The claimant alleged, inter alia, that the fourth-named respondent said “you know the police station is not too far from here”. The tribunal does not accept that this was said or that the claimant had been threatened or bullied in the course of the meeting.

As indicated above, the tribunal has concluded that the meeting was conducted in the manner indicated by the second-named respondent and dismisses those allegations of harassment.

58. In relation to the grievance and appeal procedures the tribunal can again find no evidence on which it can properly infer unlawful discrimination or a failure to make a reasonable adjustment contrary to the 1995 Act. The failure to address or to consider pending disciplinary issues in the course of a grievance procedure seems to the tribunal to be entirely reasonable. The claimant, in her final written submissions, argues that the procedure and decision making was not fair. As with other parts of this case, this argument misses the point. This is a statutory tribunal considering alleged breaches of the Disability Discrimination Act 1995. The tribunal has no interest in substituting its own approach for that of the respondents in relation to the grievance process. It has no interest in deciding whether we would have done things differently or in deciding whether the procedure was ‘fair’ per se, save to determine whether inferences can be drawn of actions or of inactions contrary to the 1995 Act. There has been no evidence on which such an inference can be drawn in this respect.

59. However, the tribunal is concerned that the first-named respondent and her line manager failed to take basic and normal steps in relation to an employee with a clear health condition. This was an employee of some long-standing who had indicated and in respect of whom it should have been obvious that there was a serious health issue involving a heart condition. This was not on any reading of events a matter which could be dismissed by the first-named respondent as trivial or as not life-threatening. The actions of a reasonable employer in this situation would have been to refer the individual to Occupational Health or, at the very least, to have sought formal and clear clarification, perhaps with the assistance of the claimant’s General Practitioner or the claimant’s hospital consultant, of the precise nature of the claimant’s medical condition. It was casual, to say the least, for the first-named respondent to allow the claimant to continue to work in these circumstances without having properly sought further details of her medical condition.

60. It is also clear that the first-named respondent, as the claimant’s employer, had, for the purposes of Malcolm, at least the means available to it to know fully and accurately the nature of the claimant’s cardiac condition. It certainly knew enough to alert it to the existence of a serious health condition. The hospital tests and the proposed surgery should have alerted anyone in the position of the first-named respondent.

61. On that basis, the tribunal considers that the first-named respondent was in breach of its requirement to provide a reasonable adjustment to the claimant in the circumstances pertaining to the meeting on 20 October 2011. The claimant clearly suffered from a serious cardiac condition. The claimant was ushered, without warning, and without any form of prior notice, into a meeting in respect of which, to all practical effects, she was denied the opportunity of securing adequate representation. No one was available who could have provided such representation and the first, second and third-named respondents knew no one was available. There was no real possibility of the meeting being re-listed to allow representation, of whatever type, to be obtained. Again without warning, she was presented with serious accusations which could, on a common sense reading of events, have resulted in the ending of her employment and in the institution of criminal proceedings.

62. For any employee this would have been a serious matter. For an employee with a cardiac disability, of which the respondents should have been aware, this was a potentially even more serious matter. The first-named respondent is indeed fortunate that nothing more adverse occurred in a situation where, without any good reason, the claimant was placed under a significant stress, a significant part of which could and should have been mitigated by a reasonable adjustment.

63. In considering the respondents’ approach to the meeting on 20 October 2011, it must also be remembered in all of this that there is no suggestion from the first-named respondent that the claimant was in a position, in any way, to have interfered with the CCTV recording, with the documentary records held by the first-named respondent or with the testimony to be offered by any other individual. There was, therefore, no good reason for the meeting on 20 October 2011, which had been arranged some days previously, to have been conducted without prior warning to the claimant and without any real opportunity for the claimant to secure representation.

64. The tribunal therefore concludes that a reasonable adjustment in these circumstances, given the nature of the claimant’s disability, of which the first-named respondent was or should have been aware, would have been to have provided full and proper notice of the meeting and its purpose, in a more considerate manner, to the claimant. A reasonable employer, acting properly, would have set up the meeting in an entirely different manner. Representation should have been offered and arranged beforehand. Clear details of the alleged misbehaviour should have been provided in advance to the claimant. Stress should have been minimised and the claimant’s ability to respond properly would have been maximised.

65. The claims against the second, third and fourth-named respondents are dismissed accordingly but the claim against the first-named respondent is upheld in relation to the failure to make a reasonable adjustment to its practice of ‘investigatory’ meetings which led to the meeting on 20 October 2011.

Compensation

66. The tribunal is aware that this would have been a stressful situation in any event even if there had been an appropriate reasonable adjustment. However, the failure to provide such a proper reasonable adjustment has undoubtedly increased the distress that the claimant would, in any event, have felt. No medical evidence has been produced by the claimant to support this ground of claim. No evidence has been produced of any financial loss. Applying the principles of Vento, as properly updated, this is a lower rate award i.e. between £500 and £6,000. This is an imprecise science at best. In Vento –v- Chief Constable of West Yorkshire Police [2003] IRLR102, the Court of Appeal stated:-

“Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in money terms. Translating hurt feels into hard currency is bound to be an artificial exercise”.

Allowing that a level of distress which would have occurred in any event, the tribunal concludes that the proper figure for compensation is £5,000.00.

There are no grounds on which aggravated damages can be awarded. Such damages may, in principle, be awarded where the respondent is guilty of conduct which was high-handed, malicious, insulting or oppressive. – Scott –v- Commissioners for Inland Revenue [2004] IRLR713 CA. The first named respondent’s failure to make the requisite reasonable adjustment is none of those things. Furthermore, the Northern Ireland Court of Appeal in McConnell –v- Police Authority [1997] IRLR625 held that aggravated damages should not be an extra sum over and above the sum which the tribunal in fact considered appropriate compensation for the injury to the claimant’s feelings.

Furthermore, the correct figure is, insofar as it can be judged, the measure of actual loss. It is not, as the claimant argues, a figure ‘which will send a message’. As the EAT said in HM Prison Service –v- Johnson [1997] IRLR162:

“Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the Tortfeasor.”

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

Vice President:

Date and place of hearing: 16 – 18 October 2012, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Mimna v Department for Employment & Le... [2012] NIIT 02046_12IT (18 October 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/2046_12IT.html Cite as: [2012] NIIT 02046_12IT, [2012] NIIT 2046_12IT

Industrial Tribunals Northern Ireland Decisions