Smith v Wrightbus Limited [2009] NIIT 21

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 01668/07

01812/07

00021/08

CLAIMANT: Gavin Smith

RESPONDENT: Wrightbus Limited

DECISION

The tribunal’s unanimous decision is that the claimant was unfairly dismissed by the respondent and that the respondent failed to comply with Section 4A of the Disability Discrimination Act 1995 in that it failed to make a reasonable adjustment. In respect of disability discrimination, the tribunal awards £12,500 for injury to feelings plus £2,000 in respect of interest on that sum. In respect of unfair dismissal, the tribunal awards a total of £23,333.31, subject to the recoupment of jobseekers allowance and income support.

Appearances:

The claimant was unrepresented and appeared in person.

The respondent was represented by Mr A Ferguson of Personnel and Training Services.

(i) Does the tribunal have jurisdiction to hear a disability discrimination claim, and if so, to what extent?

(ii) If the tribunal does have jurisdiction, did the respondent unlawfully discriminate against the claimant by failing to make a reasonable adjustment in respect of the requests for a secure locker or by discriminating against the claimant for a disability related reason in relation to the dismissal?

(iii) Did the respondent unfairly dismiss the claimant in contravention of Part XI of the Employment Rights (Northern Ireland) Order 1996?

10. Section 3A of the Disability Discrimination Act 1995 (as amended) provides:-

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

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

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

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

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

(b) any physical feature of premises occupied by the employer places a disabled person concerned at a substantial disadvantage in comparison with the 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 that provision criterion or practice, or feature, having that effect.”

(1) 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 reasonable adjustments, regard shall be had, in particular, to -

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

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

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

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

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

13. In Environment Agency v Rowan [2008] IRLR 20, the EAT re-stated earlier guidance to the effect that an Employment Tribunal in considering a claim that a employer has discriminated against an employee pursuant to Section 3A(2) of the Act by failing to comply with Section 4A duty must identify:-

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

14. The EAT stated that in their opinion a tribunal cannot properly make findings of a failure to make reasonable adjustments without going through that process. Unless the tribunal had identified the four matters as set out above, it cannot go on to judge if any proposed adjustment is reasonable. It would be simply unable to state what adjustments were reasonable to prevent the provision criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage.

15. 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 Sainsburys Supermarkets Ltd [2006] IRLR 664 suggested that in a reasonable adjustment case, the burden of proof will shift if an adjustment could reasonably have been made and it would then be up to an employer to show why it had not been made.

16. The EAT in the case of Project Management Institute v Latif [2007] IRLR 579, in 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 for which it could properly be inferred that there is a breach of that duty. There must be some 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 with the question of whether it could reasonably be achieved or not.”

17. In Lewisham London Borough Council v Malcolm [2008] UK HL43, the House of Lords considered the case of a local authority housing tenant who suffered from schizophrenia and was therefore disabled for the purposes of the Act. He had sub-let his flat in breach of his tenancy agreement. The Council sought repossession as a result of that breach. The tenant’s defence to the repossession proceedings was that the breach of the tenancy conditions had been caused by his disability and that therefore the Court was precluded from making any order for possession against him. That defence failed.

The Lords held that the correct comparator in these circumstances was a tenant of the Council who had no mental illness and who had sub-let his flat, and not a tenant of the Council who had not sub-let his flat. The Lords held that Parliament would have meant the directed comparison to be a meaningful comparison in order to distinguish between treatment that was discriminatory and treatment that was not discriminatory. The defendant’s schizophrenia was not in the mind of the Council when it decided to serve notice to quit and to take possession proceedings against him. It was not enough for the claimant to show that, objectively viewed, there was a connection between schizophrenia and his sub-letting. He needed to show also, that his mental condition ie his disability, played some motivating part in the authorities’ decision to terminate his tenancy and to recover possession of the premises.

18. In British Home Stores Ltd v Burchell [1978] IRLR 389, the decision stated that in determining whether a dismissal is unfair, a tribunal has to decide whether an employer who dismisses on the grounds of misconduct has entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that conduct at that time. That in itself involves three elements. First, there must be established by the employer the fact of that belief; that the employer did believe it. Second, there must be shown that the employer had in mind reasonable grounds upon which to sustain that belief. Third, the employer at the stage at which he formed that belief for those grounds must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

19. The Court of Appeal in the case of Sainsburys Supermarkets Ltd v HITT [2003] IRLR 23, stated that a tribunal in this situation cannot substitute its own judgement as to what amounts to a reasonable investigation. It must apply an objective standard, ie the standard of a reasonable employer as to what constitutes a reasonable investigation.

20. The EAT determined in Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, that the function of an industrial tribunal is to determine in the particular circumstances of each case whether the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair. If the dismissal falls outside the band, it is unfair.

21. The Court of Appeal in Andrew James Taylor v OCS Group Ltd [2006] EWCA Civ 702 stated:-

“The use of the words “re-hearing” and “review” albeit only intended as an illustration, does create the risk that Employment Tribunals will fall into the trap of deciding whether the dismissal procedure was fair or unfair by reference to the review or whether an appeal was a re-hearing or a mere review. This error is avoided if Employment Tribunals realise their task is to apply the statutory test. In doing that it should consider the fairness of the whole disciplinary process.”

“In saying this, it may appear that we are suggesting that Employment Tribunals should consider procedural fairness separately from other issues arising. We are not; indeed it is trite law that [GB equivalent legislation] requires the Employment Tribunal to approach this task broadly as an industrial jury. That means it should consider the procedural issues together with the reasons for the dismissal as they find it to be. The two impact on each other and the Employment Tribunal’s task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss.”

22. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides that the determination of the question of whether the dismissal is fair or unfair depends on whether, in the circumstances, (including the size and the administrative resources of the employers undertaking) the employer acted reasonably in treating the basis for the dismissal as a sufficient reason for dismissing the employee and that question shall be determined in accordance with equity and the substantive merits of the case.

23. The claimant was called away from his workstation on 23 May 2007 and, on his return, looked for his bag so that he could administer an injection of insulin. His bag had been moved. After approximately 10 minutes searching, he found the bag. The syringe had been broken. The insulin was leaking.

24. The claimant was agitated and annoyed, firstly at having to search for his bag, and secondly at the damage caused to the syringe. He needed to inject himself with insulin to counteract what he recognised as the symptoms of a raised blood sugar level. He decided to go home where he had a spare syringe and insulin.

25. The claimant stated during the disciplinary process and during the tribunal hearing that he did not know that he required the permission of a manager or supervisor to leave the premises. The tribunal does not see how this could be the case. Any employee would know that it is normal practice to seek the permission of a manager before leaving the workplace to go home during working hours. No specific or formal notification of this fact would have been required. However the tribunal accepts the claimant’s evidence that he did in any event attempt to speak to Mr French before he left the premises, if only to express his annoyance at what had happened to his syringe. Mr French was not available. The room which Mr French shared with another manager was empty. The claimant gave evidence that there was a management meeting ongoing at that time. That evidence was not contradicted by the respondent and the tribunal concludes that at the relevant time, Mr French, the line manager who was familiar with the claimant’s medical condition, was in a management meeting elsewhere in the factory.

26. There were other line managers and supervisors in the factory who were outside the claimant’s direct line management. The respondent argued that it would have been possible for the claimant to have sought out one of these individuals and to have asked for permission to leave the premises. The respondent also took the position that the claimant could have spoken to the receptionist or to the security guard on the gate to leave a message or that he could have spoken to the factory nurse. Since the receptionist and the security guard would not have had the authority to give the claimant permission to leave the factory, it is not clear how leaving a message with either of those individuals would have altered the position. As far as the nurse was concerned, she worked in another building, saw employees by appointment only and had never met the claimant. In any event the claimant did not speak to any of these individuals. He clocked out in accordance with normal procedure and left the premises at approximately 2.30pm to cycle three miles to his home address.

27. It was not suggested at any stage by the respondent that permission to leave the premises would have been refused if the claimant had sought out another manager or supervisor and had taken the time to explain all the circumstances surrounding his medical condition and the damage to the syringe.

28. The claimant cycled home, administered the necessary injection and went to bed. He was off sick until 12 June 2007 with stress.

29. Mr French noted his absence approximately 15 minutes after he had left on 23 May and referred the matter to the respondent’s welfare officer who contacted the claimant by telephone the next day.

30. On his return to work, the claimant was invited to an initial investigation meeting on 12 June 2007. Mr Richard Cromie, the respondent’s Human Resources Manager conducted that meeting. The claimant was accompanied by Mr J Wright, trade union representative. The claimant stated that he had felt ill on 23 May and that his eyes were sore. He explained that this was a symptom of his need for an injection of insulin. He stated that practical jokes were frequently played in his work area. There was no argument to the contrary from Mr Cromie and it appears to have been accepted by management that practical jokes of this nature were a problem in the factory. Towards the end of the meeting, the claimant asked Mr Cromie about a secure locker to store his insulin and syringe. The response from Mr Cromie was “see your manager”.

31. Mr French was invited to a separate investigation meeting on 12 June 2007. The claimant was not present at this meeting. Mr Cromie and Mr French discussed the claimant. Mr French stated “he is paranoid and tells lies.” No examples, evidence or justification were recorded for this remark and the tribunal heard no evidence of any further investigation into the claimant’s credibility. Mr Cromie described the practical jokes as “school boyish pranks” with “no malice”. When the issue of a locker was discussed, Mr French said that the claimant knew he could use a cupboard in the workbench for his possessions.

Neither Mr Cromie or Mr French appeared to have considered whether practical jokes which included hiding a diabetic employee’s insulin were, in fact, dangerous and rather more than “school boyish pranks”.

32. The claimant was invited to a further investigation meeting on 14 June 2007. That meeting was conducted by Mr Joe Martin. The claimant was again accompanied by Mr Wright. Nothing of significance occurred during that meeting.

33. Mr French was called to a further investigation meeting on 18 June 2007. Mr French stated again that the claimant “tells lies” but again no examples or evidence to support this remark have been recorded and the issue was apparently not investigated further. It was not disputed during this meeting between Mr French and Mr Martin that practical jokes took place in the factory and there is no record of any investigation on the part of the respondent into the circumstances in which the claimant’s bag was moved. It is not recorded that management did not believe the claimant’s statement that his bag had been moved or the claimant’s statement that his syringe had been broken.

34. On 19 June 2007, a charge letter issued to the claimant. The charge was one of “gross misconduct – leaving the premises without permission.” There was no other charge.

A disciplinary hearing was on 21 June 2007. The claimant was represented by Mr Wright.

35. Mr Cromie and Mr Larmour conducted the hearing. Mr Larmour told the tribunal that the outcome of the hearing was a joint decision taken by a panel comprising Mr Cromie and himself. In contrast, Mr Cromie said that the decision was Mr Larmour’s decision “although a decision with which he agreed”. He maintained that he was present at the hearing solely in an advisory capacity. It is not entirely re-assuring to note that the respondent’s management were, and apparently still are, unable to agree whose responsibility it was to make a decision at first instance in relation to the disciplinary charge.

36. During the disciplinary hearing the claimant was referred to a previous incident in which he had used insulin belonging to another diabetic employee. The suggestion was made that this would have been a viable alternative to going home to administer an injection. The claimant distinguished the previous incident by saying that it had been his fault –he had forgotten his insulin and syringe. More importantly, the claimant made it plain on three occasions during the disciplinary hearing that the other employee’s insulin was different from the insulin which had been prescribed for him. It was therefore not advisable for the claimant to use the insulin prescribed for the other employee.

The claimant was also asked why he had not gone to Personnel to sort out his request for a locker. The claimant had made that request on two occasions to his manager and when he did make the request direct to Mr Cromie, the respondent’s Human Resources Manager, during the initial investigation meeting on 12 June 2007, the response from Personnel, was “see your manager”. Given that response, it is perhaps unsurprising that the claimant had not chosen to pursue the matter initially with Personnel. There was also a great deal of discussion about the way in which the claimant had certified his sick absence. However, that matter was not the subject of the disciplinary charge which had to be determined. The only disciplinary charge was “leaving the premises without permission”.

37. The claimant was also quizzed about why he decided to cycle home from the factory. It was suggested that this was a dangerous move. Mr Cromie went so far as to the telephone the respondent’s occupational health specialist to receive advice, presumably given on the basis of whatever version of events was presented to the doctor over the telephone, that the cycle home was indeed potentially dangerous. It is odd that the opportunity was not taken by Mr Cromie or by Mr Larmour, during this conversation with the doctor, to check the much more relevant issue; ie could the claimant have used the insulin held by another employee as an alternative to going home? This issue was raised by the respondent during the disciplinary hearing and was clearly a significant factor relied on by both Mr Larmour and Mr Cromie (whoever made the decision) when the decision was made to dismiss the claimant. Mr Cromie, in his witness statement to the tribunal, devoted an entire paragraph to the issue. He stated at paragraph 14 of his statement:-

“Mr Smith stated during the hearing that he did not borrow a friend’s insulin on this occasion despite borrowing it in the past. The reason he gave being that it was his fault last time that he had forgotten to bring his to work, however on this occasion it was allegedly the company’s fault so he chose not to borrow it. It was my belief that he could have taken another course of action rather than leave the premises without permission and without notification.”

Mr Cromie clarified in evidence that the other “course of action” was the use of the other employee’s insulin. He could not satisfactorily explain to the tribunal why he had, apparently, automatically dismissed the claimant’s statement that the insulin prescribed to the other employee was different from the insulin prescribed to him. Mr Cromie suggested at one point in his evidence that this was an issue of credibility. He had concluded that the claimant was not telling the truth about his reasons for leaving the premises without permission. However, it was not presented as an issue of credibility in Mr Cromie’s witness statement. It was put forward as a substantive basis for the decision to dismiss.

Mr Larmour in his witness statement also addressed the issue of the possibility of using another employee’s insulin. He stated at paragraph 2 of his statement:-

“He could not take his insulin so he went home in a hurry to get his injection, though previously he had used another persons on another occasion but on this occasion it was not his fault. So I asked him why he could not use it this time? He stated that his doctor had told him that this was not advisable and anyway it wasn’t his fault this time.”

Again there is no reference in the contemporaneous documentation or in the witness statements to any proper investigation of what had clearly been put forward by the claimant ie that he couldn’t safely use another individual’s insulin or indeed, one presumes, safely use another person’s syringe. It appears to this tribunal that both Mr Cromie and Mr Larmour, without any proper consideration, automatically dismissed the explanation put forward by the claimant, even though they had a perfect opportunity to seek advice on the issue when they sought advice in relation to the advisability of the claimant cycling, although it is not entirely clear what the relevance of that latter issue was to the disciplinary charge under consideration.

38. The claimant at one point in the disciplinary hearing became angry. He stated:-

“I know you are going to sack me; you don’t know what it is fucking like to have diabetes.”

He was taken outside by Mr Wright to calm down. He was very annoyed and irate. He said that if anything happened to him, he would “do them two”. The tribunal accepts Mr Wright’s evidence that the claimant also mentioned petrol bombing. It is important to note that this behaviour did not, as it could and should have done, provoke a further disciplinary charge. The decision to dismiss was, on the evidence of the respondent, grounded on only one disciplinary charge ie leaving the premises without permission.

39. Despite the limited focus of the disciplinary charge, the reason for the dismissal, as expressed in the record of the disciplinary hearing, went much further and included the alleged failure to seek a doctor’s appointment for eight days after leaving the premises and a delay in obtaining medical certification. These were issues not properly part of the disciplinary charge. Additional charges could have been laid by the respondent if the respondent had thought this was necessary. Additional charges were not laid.

40. A formal letter of the dismissal issued on 22 June 2007 confirming what had been verbally indicated on 21 June at the end of the hearing.

41. The claimant appealed the dismissal on 26 June 2007 and, after some initial difficulties, the appeal was heard on 8 August 2007 by Mr McGarry, the respondent’s Manufacturing Development Manager. The claimant was represented by Mr Wright. The claimant stated in relation to the possibility of using another employee’s insulin that he had been told by his diabetic nurse that this was not advisable. Again, there is no record of Mr McGarry ever investigating this issue and he confirmed in evidence that he had not done so. Mr McGarry concluded that the claimant had had ample opportunity to speak to other managers before leaving the premises on 23 May and dismissed the appeal.

“I believe that Mr Smith did not attempt to seek permission and also saw no need for special circumstances to be applied. My opinion was also reinforced by Mr Smith making no attempt to use a colleague’s insulin as he had done previously.”

It is clear to this tribunal that a substantial basis for the decision, at both the initial and the appeal stage, by the respondent to dismiss the claimant was that he could simply have used the insulin held by an another employee but chose not to do so. The claimant had stated in very clear terms on three occasions at the initial disciplinary hearing and again on one occasion at the appeal hearing that this was not advisable and that the insulin prescribed to the other employee was different to the insulin prescribed to him. He further explained at the tribunal hearing that there are six types of insulin generally prescribed and that it would be unsafe to use somebody elses insulin. He produced a written medical report to that effect on the first day of the hearing. The respondent had not seen that medical report. The tribunal made it plain to the respondent that if the respondent wished to call rebuttal evidence, having had a chance to discuss that report with their occupational health specialist, the tribunal would facilitate that rebuttal evidence at a later stage in the hearing. No such evidence was produced. The tribunal therefore concludes that the claimant was correct to say that it would not have been safe for him to use the other employee’s insulin. The tribunal also concludes that both at the initial disciplinary stage and at the appeal stage, the respondent signally failed to properly consider an explanation put forward by the claimant which completely rebutted a significant part of their decision to dismiss.

43. Article 19(2) of the Employment (Northern Ireland) Order 2003 provides that an employee shall not present a complaint to a tribunal if:

(a) he has failed to lodge a grievance about the subject matter of the complaint under the statutory grievance procedures

(b) he has lodged such a grievance but has done so without allowing 28 days to pass before presenting his complaint to the tribunal or

(c) he has lodged such a grievance, but he has done so more than one month after the end of the original time limit for making a complaint.

44. The time-limit for lodging a complaint in the tribunal in respect of all matters complained of in this case is three months from the act or acts complained of.

That time-limit includes the provision for an extension of time, where the tribunal considers it just and equitable to do so, in respect of a complaint of disability discrimination – BUPA Care Homes V Cann [2006] IRLR 248.

45. There is no obligation to lodge a grievance in respect of breach of contract – Article 19(1) and Schedule 3 to the 2003 Order.

46. Regulation 6(5) of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (NI) 2004 provides that the statutory grievance procedures do not apply where the complaint is that the employer has dismissed the employee.

47. Regulation 15 of the 2004 Regulations provides that the normal time limit for presenting a claim of disability discrimination to the tribunal shall be extended by three months where either of the circumstances in paragraph (3) of that regulation applies.

“(b) after the expiry of the normal time limit for presenting the complaint, having complied with paragraph 6 or 9 of Schedule 1 in relation to his grievance within that normal time limit.”

Paragraph 6 and 9 of Schedule 1 to the 2003 Order refer to the requirement to submit a written grievance under the standard or modified procedure.

48. A statutory grievance must be in writing but need not follow any particular form. The test as set out in Canary Wharf Management Ltd v EDEBI [2006] IRLR 416 was summarised as:-

“It seems to me that the objective of the statute can be fairly met if the employer, on a fair reading of the statement and having regard to the particular context in which it is made, can be expected to appreciate that the relevant complaint is being made.”

49. The complexity of the legislation which provides for the Statutory Grievance Procedure (SGP) has, in this case, served only to unnecessarily complicate matters for the claimant, the respondent and the tribunal.

50. There were three separate claim forms submitted to the tribunal in relation to this matter. There were also two separate documents submitted to the respondent which purported to be grievances under the SGP:-

(i) The first claim (1668/07) was expressed to be a complaint of unfair dismissal and breach of contract. Neither complaint required compliance with the SGP to give the tribunal jurisdiction. The claim was lodged on 12 September 2007. It was clearly within time.

It stated that a separate complaint of disability discrimination would follow once a grievance had been lodged under the SGP. The claim form set out the claimant’s disability and his requests for a secure locker within which to store his syringe and insulin. The claim included the following:-

“The claimant contends that he felt highly agitated. This was exacerbated by the fact that the claimant felt that the respondent had done nothing to assist in the management of his condition, by affording him the privilege of having a personal locker to store his insulin.”

The claim form specifically referred to a claim for relief under the Disability Discrimination Act.

(ii) The claimant’s solicitor sent the respondent a letter on 12 September 2007 which stated:-

“I refer you to the above and would ask you to note that I act on his behalf in relation to proceedings for unfair dismissal and discrimination on grounds of disability relating to events which occurred in and around 21 June 2007 and prior (tribunal’s emphasis).

I would be obliged if you would treat this correspondence as formal notification of Step 1 of the Statutory Grievance Procedure.”

(iii) The respondent replied on 18 September 2007 agreeing to the modified SGP and asking for the “full details and basis of your grievance”.

(iv) The claimant’s solicitor replied on 1 October 2007 with a full statement alleging discrimination “in the circumstances leading up to and including the decision to dismiss the claimant”.

(v) A second claim (1812/07) was lodged on 16 October 2007 alleging disability discrimination and repeating the claims of unfair dismissal and breach of contract. It was in largely similar terms to the first claim. It relied on the letter of 12 September 2007 as compliance with Step 1 of the modified SGP.

(vi) A third claim (21/08) was lodged by the claimant’s solicitor on 28 November 2007. It withdrew the second claim (1812/07) and, pursuant to Rule 25, those proceedings were brought to an end on 28 November 2007.

(vii) At a Case Management Discussion on 29 May 2008, it was agreed between the parties that the jurisdiction of the tribunal to hear any of the claims would be determined at the substantive hearing.

The tribunal concludes that the dismissal of the claimant was both procedurally and substantively unfair.

The respondent failed to adequately investigate the circumstances in which the claimant left the factory on 23 May 2007. It did not consider or investigate the claimant’s repeated comments about the inadvisability of using another person’s insulin or syringe. There was no evidence that it investigated the circumstances in which the claimant’s bag was moved and the syringe was broken. The consideration of the single disciplinary charge to which the claimant was asked to respond appears to have been overtaken by an entirely separate issue; his failure to comply with sick absence certification procedures. That failure was not the subject of any disciplinary charge. The respondent does not appear to have adequately considered the possibility that the claimant had become understandably agitated at the practical joke which had been played on him, and does not appear to have considered the possibility that, in all the circumstances of the case, the claimant did not act unreasonably in cycling the relatively short distance home, where he knew there was a supply of the correct type of insulin and a functioning syringe. The respondent appears to have approached this matter with a closed mind and a preconceived outcome. The Tribunal concludes that the failure to investigate the incident properly and the failure to conduct the disciplinary process fairly rendered the dismissal unfair. The tribunal further concludes that a decision to dismiss the claimant, either summarily or on notice, was not within the band of reasonable responses open to an employer in the circumstances of this case. The claimant had been unable to contact his line manager before leaving the premises. His blood sugar level was elevated. He needed an appropriate injection and that injection was available at his home, a relatively short distance away. The claimant’s request for a secure and hygienic place to store his insulin and syringe had not been granted by the respondent even though it had been aware of the practical jokes played on the factory floor. The steps taken by Mr French had not been effective. The threats uttered by the claimant in the hearing of Mr Wright did not, on the evidence presented to the tribunal, form part of the decision to dismiss. These threats were not made the subject of a disciplinary claim to which the claimant would have had an opportunity to respond. The only charge was “leaving the premises without permission”. The claimant had no formal disciplinary record. The Tribunal concludes that no reasonable employer would have dismissed the claimant, either summarily or on notice, on that charge in those circumstances. The Tribunal also concludes that the claimant did not contribute to his dismissal. His actions in leaving the premises, having attempted to speak to his line manager, could not reasonably be described as culpable.

53. The tribunal concludes that the respondent unlawfully discriminated against the claimant for a reason connected with disability in that it failed to comply with its duty to make a reasonable adjustment. The claimant suffered from a disability requiring ready access to his own syringe and insulin. He asked Mr French on two occasions and Mr Cromie on one occasion for a secure locker to store those items. The respondent was aware of the prevalence of practical jokes in the workplace. It was also aware that lockers were already available elsewhere in the factory. While Mr French made an attempt to deal with the practical jokes that attempt was not successful. He also offered the use of a cupboard underneath the workbench. The tribunal fails to see how that offer could have been considered an adequate solution. The cupboard had no lock; the claimant would have had to provide his own padlock. The claimant gave uncontradicted evidence that the cupboard door had external hinges which could easily be removed even if a padlock was fitted. The cupboard was also full of industrial materials and was in a particularly dusty environment.

Mr French was fully aware of the claimant’s disability and had facilitated his use of insulin at the workplace. As noted above, he had also made an effort to deal with the culture of practical jokes on the factory floor. However he failed to individually pursue or act on the claimant’s reasonable request for a secure (and hygienic) locker within which to store his insulin and his syringe.

The burden of proof shifts to the respondent. The relevant provision criterion or practice is the requirement for the claimant to remain on the premises during working hours and therefore to retain his personal supply of insulin and a syringe. The substantial disadvantage suffered by the claimant was the risk of having that insulin and syringe interfered with, or contaminated by dust. The reasonable adjustment which could have been made was the provision of a secure hygienic locker. It falls to the respondent to show why that was not done. The respondent has failed to discharge that burden of proof.

54. The tribunal also has to consider the complaint of disability related discrimination in relation to the disciplinary process and the dismissal.

55. The meaning of ‘disability related discrimination’ and the correct comparator in relation to such a claim altered radically following the decision of the House of Lords in Lewisham London Borough Council v Malcolm (see Paragraph 17 above). The correct comparator, in the circumstances of the present case, is now a non-disabled employee who left the respondents’ premises without permission. The respondent has failed to produce any evidence of a situation in which another employee was dismissed, summarily or otherwise, for leaving the premises without permission. However the respondent has argued that a hypothetical comparator would have been dismissed in the absence of special circumstances. Leaving the premises without permission is identified in the respondents’ handbook as gross misconduct which would result in summary dismissal. The tribunal accepts the respondent’s evidence that any such incident would, in the ordinary course of events, have been viewed as gross misconduct.

The House of Lords, in Lewisham, concluded that the tenant’s disability was not in the mind of the Council when it decided to serve a notice to quite. It was not enough, objectively viewed, that there was a connection between the disability and the act viewed as a breach of the tenancy. The disability had formed no part of the Council’s decision to serve the notice to quit.

In the present case, the respondent did not have the claimant’s disability in mind when it decided to dismiss him. He was dismissed (unfairly) for leaving the premises without permission in the same way as a non-disabled employee would have been dismissed in the circumstances. While there was a connection between the claimant’s disability and the claimant’s decision to leave the premises, that is not sufficient to ground a claim of disability related discrimination. The tribunal therefore concludes that the respondent did not discriminate against the claimant for a disability related reason in deciding to dismiss him for leaving the premises without permission.

56. The respondent’s failure to comply with its duty to make a reasonable adjustment by providing a locker for the claimants insulin and syringe did not occasion any economic loss.

The claimant first asked Mr French for a locker in December 2006. That request was refused on that occasion and on two further occasions. No effort was made by the respondent to provide a locker, although given the culture of practical jokes and the dusty working environment, it is difficult to imagine a more reasonable adjustment. Essentially the claimant was given the “run-around”. His manager referred him to Personnel and Personnel referred him to his manager. Neither addressed the issue.

Having carefully observed the claimant giving evidence the tribunal is satisfied that the respondent’s failure to respond to his request for a locker over the five months leading up to his dismissal caused significant injury to feelings. The tribunal concludes that an appropriate award would fall in the upper part of the middle band in the guidance set out in Chief Constable of West Yorkshire Police v Vento [2003] IRLR 102. The EAT in Miles v Gilbank ( transcript 14/9/05) held that the effects of inflation since the Vento decision should be taken into account:-

“We make the point, if we may, that actually Vento is now three years old and that is a point which is of relevance because, whilst we do not have the raging inflation which has been known in various stages of this country’s history, we nevertheless do have quiet inflation which devalues monetary values”

Since the retail price index has increased by approximately 9% over the five years since the Vento decision, the middle band for an injury to feelings award should now be from £5,500 to £16,000 approximately.

The tribunal is conscious that an injury to feelings award is not punitive in nature; it is meant to be compensatory and therefore, when considering the award in this case, the tribunal has considered only the injury to feelings suffered by the claimant in this case and has excluded from its consideration the concerns that it has about the way in which the respondent failed to fulfil its responsibilities under the Act.

57. Interest at the rate of 8% per annum from the date of the respondent’s contravention of the Act is potentially payable under Regulation 7(1)(a) of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996. The tribunal is obliged by Regulation 3(1) (b) to consider whether to include interest on an award. It may calculate the interest by reference to a period other than the period running from the date of the contravention to the date of calculation if it is of the opinion that serious injustice would be caused by calculating interest by reference to that period.

The claimant first requested a locker in December 2006. There is no reason why a locker could not have been provided as a reasonable adjustment by the end of January 2007. The tribunal has heard no evidence on which it could conclude that calculating interest by reference to the standard period would cause serious injustice to the respondent. It concludes that it would be appropriate to award interest in this case. The need for a locker was obvious in the circumstances of this case and the respondent failed to comply with its duty to make a reasonable adjustment over an extended period.

58. The claimant sought a reinstatement order. The tribunal has concluded that there has been a complete breakdown in trust and confidence between the claimant and the respondent, in particular because of the threats uttered by the claimant during the disciplinary process. While those threats were not the subject of a disciplinary charge and did not form part of the decision to dismiss, the tribunal cannot ignore the fact that they were made. The tribunal therefore concludes that that a Reinstatement or Re-engagement Order would not be practicable---Article 150(1)(b) and (3)(b) of the 1996 Order—and declines to make such an order.

59. The claimant started work with the respondent on 20 June 2005 and that employment ended on 21 June 2007. He was 32 years of age at the time of dismissal. His gross weekly wage was, on the evidence of the parties, £290. This does not seem consistent with the net figure supplied by the respondent but the tribunal can only proceed on the evidence presented to it.

The tribunal, after considering the evidence of the claimant concludes that he sought to mitigate his loss by seeking other employment and that no deduction falls to be made by reason of contributory misconduct. The tribunal concludes that it would be appropriate to award compensation in respect of the period between the date of the dismissal and the date of hearing and for a further period of 26 weeks in respect of future loss.

Housing benefits are not deductible from compensatory awards—Savage v Saxena [1998] IRLR 182 but incapacity benefit is deductible—Morgans v Alpha Plus Security Ltd [2005] IRLR 234.

The receipt of incapacity benefit does not automatically and necessarily mean that a person is incapable of work – Sheffield Forgemasters International v Fox [UKEAT/0143/08/MAA (Transcript)]. The tribunal has carefully considered the claimant’s evidence and concludes that he actively sought work during that period and that he was capable of work.

60. The claimant claimed jobseekers allowance and income support, to which the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 apply.

(i) The prescribed element (the loss of earnings less incapacity benefit up to the date of hearing) is £15,241.31.

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

Date and place of hearing: 1 - 2 December 2008 and 12 December 2008, Belfast

51.	(i)	The tribunal has jurisdiction to determine the complaint of unfair dismissal. It was made within time and there was full compliance with the statutory disciplinary and dismissal procedures.

	(ii)	The tribunal has jurisdiction to determine the breach of contract claim in respect of notice pay. Compliance with the SGP is not required for such a claim.

	(iii)	The letter of 12 September 2007, read together with the first claim form, lodged on the same date, has to be considered in the context of the Edebi decision above. The tribunal concludes that the letter, in its context , was sufficient to put the respondent on notice as to the full nature of the claims of disability discrimination.

	(iv)	The second claim, 1812/07, has been withdrawn.

	(v)	Compliance with SGP is not required under Regulation 6(5) of the 2004 Regulation where the complaint of unlawful discrimination relates to the dismissal of the claimant. The tribunal therefore had jurisdiction to hear the complaints of disability related discrimination in relation to the dismissal.

	(vi)	There remains the complaint of unlawful discrimination in relation to the respondents failure to provide a safe and hygienic locker for the claimant to store his insulin and syringe. That failure continued up to the date of the dismissal on 21 June 2007. The third claim was lodged on 28 November 2007, more than three months after 21 June 2007.

	(vii)	The first claim 1668/07 referred specifically and in detail to the claims of disability discrimination. It was lodged before there was compliance with the SGP. That compliance was effected on 12 September 2007 or, at the latest on 1 October 2007. The normal time limit for lodging a disability discrimination claim expired on 21 September 2007. Therefore the letter of 12 September 2007 which the tribunal has accepted as a sufficient compliance with Step 1 of the modified SGP, was within the normal time limit. That normal time limit is therefore automatically extended by a further three months under Regulation 15 of the 2004 Regulations. The third claim is therefore within time as automatically extended.

	(viii)	The tribunal therefore has jurisdiction to deal with the ‘reasonable adjustments’ complaint in relation to the non-provision of a locker to store the insulin and syringe.

	(ix)	There was no claim in respect of harassment.

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Smith v Wrightbus Limited [2009] NIIT 21_08IT (17 February 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/21_08IT.html Cite as: [2009] NIIT 21_8IT, [2009] NIIT 21_08IT

Industrial Tribunals Northern Ireland Decisions