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Industrial Tribunals Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Gallagher v BT Plc [2010] NIIT 01395_08IT (20 September 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/01395_08IT.html Cite as: [2010] NIIT 1395_8IT, [2010] NIIT 01395_08IT |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1395/08
CLAIMANT: Sharon Gallagher
RESPONDENT: 1. BT Plc
2. Majella Duggan
DECISION
The unanimous decision of the tribunal is that:-
(1) The claimant was unfairly dismissed by the first named respondent and compensation of £19,842.50 is awarded, calculated as set out in this decision.
(2) The claimant was not disabled, at any relevant time, for the purposes of the Disability Discrimination Act 1995, and all claims under that Act are dismissed.
(3) The second named respondent was not, at any time, the claimant’s employer and therefore all claims against that respondent are dismissed.
Constitution of Tribunal:
Chairman: Mr N Kelly
Members: Mr J Welsh
Mr P Killen
Appearances:
The claimant was represented by Mr Seymour Major, Solicitor.
The respondents were represented by Mr D Hopkins, Barrister-at-Law, instructed by Napier and Sons Solicitors.
Issues
(1) The issues were agreed in a CMD on 24 September 2009 and can be summarised as follows:-
(i) Was the claimant unfairly dismissed contrary to the Employment Rights (Northern Ireland) Order 1996?
(ii) At the relevant times, was the claimant a disabled person within the meaning of the Disability Discrimination Act 1995? If so;
(iii) Was the dismissal of the claimant for a reason related to her disability?
(iv) Did the respondent fail in it’s duty to make reasonable adjustments?
(v) Was the dismissal of the claimant unlawful victimisation contrary to the 1995 Act?
(vi) Were any or all of the claims in respect of alleged failures to make reasonable adjustments lodged within the statutory time limit provided for by the 1995 Act and, if not, was it just and equitable to extend that time limit in any instance?
(vii) Did the individual issues raised in relation to the reasonable adjustments claim constitute unlawful harassment for the purposes of the 1995 Act?
(viii) Did the respondent follow the statutory grievance procedures in relation to the claimant’s two grievances?
The Hearing
(2) The tribunal sat for four days from the 16 August 2010 to 19 August 2010. It heard evidence from the claimant and from Dr Pendleton, a Consultant Rheumatologist, called on her behalf. The respondent called four witnesses. They were Ms Majella Duggan, who took the initial decision to dismiss the claimant, Mr Mike Bell, who affirmed that decision to dismiss on appeal, Ms Angela Melville, who was involved in the determination of two grievances lodged by the claimant and Doctor Wallace, a Consultant Orthopaedic Surgeon.
(3) The tribunal was also referred to five bundles of documentation comprising over 1,200 pages, together with other documentation produced by both parties in the course of the hearing.
Relevant Findings of Fact
(4) The respondent is a telecommunications company. It operates a call centre in Enniskillen which deals with billing and other enquiries from customers. It refers to an employee’s immediate line manager as “the first line manager”, the next in line as “the second line manager” and the next in line as “the third line manager”. For ease of reference, this decision will use the same terminology.
(5) The claimant was employed in that call centre from 29 March 2005 to 5 August 2008. She worked largely as a Customer Sales Advisor answering queries from customers, although she worked for a period as a coach assisting other members of staff.
(6) Her performance at work was assessed as good. She received various awards in the course of her employment and the respondent was content with her performance while at work.
(7) During the claimant’s period of service, of approximately three years and four months, there were various sick leave absences. One absence of 62 days, following a surgical procedure, appears to have been disregarded by the respondent in the decision making process leading to her dismissal, and therefore is similarly disregarded by the tribunal.
(8) The claimant was absent for a period of 32 days and a period of one day in 2006 for back pain. She was also absent for six days in October 2007 for ear and neck pain. Finally, she was absent for a period of 166 days up to the 30 June 2008 following the death of her father on 4 January 2008 following a long illness. The reason for this latter absence was recorded as “stress/bereavement”.
(9) Mr Hopkins made it clear that the respondent did not seek to allege that the claimant had been malingering during this latter period and that the respondent accepted that she had been unwell throughout the 166 days.
(10) The claimant’s first episode of back pain affecting her work was in March 2006. The respondent arranged for her computer monitor to be raised. This action was taken promptly and was of some assistance to the claimant.
(11) The claimant’s first line manager at that time, Mr A Hamill, referred her to the respondent’s Occupational Health Service and a workplace assessment was carried out by an occupational therapist on 28 April 2006. That therapist recorded a history of back and neck pain which radiated into the claimant’s left leg. The therapist recommended provision of an orthopaedic chair of a type already provided by the respondent to other employees in the call centre.
(12) On 28 June 2006, the claimant was examined again. That report stated:-
“It would be important that the new chair recommended from her previous workstation assessment is supplied to her as a matter of urgency. At this stage, (the tribunal reads this as meaning the stage at which the chair was provided) it would be important that her workstation assessment is reviewed to assess any other ergonomic aspects of her work environment which might impact on her level of symptoms. At this stage, (the tribunal reads this as meaning 28 June 2006) a height adjustable desk is not recommended but this could be considered at her next workplace assessment.”
This report also recommended that the claimant be referred for physiotherapy.
(13) The orthopaedic chair was not provided and adjusted for the claimant until 8 September 2006, over four months after the original recommendation. No satisfactory explanation has been put forward for this delay.
(14) On or about 3 November 2006, the claimant’s orthopaedic chair was used by someone else and was put out of adjustment. The correct measurements to enable the chair to be readjusted were not held on the claimant’s file as they should have been, and there was a delay of approximately three weeks in readjusting the chair to the claimant’s specifications.
(15) The respondent operated an electronic system which enabled employees and their line managers to record information which was accessible by both to facilitate personnel management and other issues. This was known as “informe”. The claimant used this system to pursue the issue of the proposed review of the workplace assessment which should have been completed once the chair had been supplied and adjusted on 8 September 2006. The focus of that review would have been to determine whether an adjustable desk was also required by the claimant.
(16) The claimant was assessed again by the occupational therapist on 28 April 2007 and the therapist made the following recommendations:-
“Refer to Occupational Health for a medical opinion regarding the provision of an adjustable height desk.”
(17) It was not clear to this tribunal why the occupational therapist could not have made a decision or recommendation in relation to an adjustable desk in the same way as she had made a recommendation in relation to an orthopaedic chair. No explanation was provided by the respondent.
(18) The claimant sent an e-mail to her first line manager on 14 June 2007 which stated:-
“I feel that I have been extremely patient up to now with regards to my BT Physio and OHS referral. I have just learned that up-to-date my OHS referral still has not been completed and I need this done urgently as my initial OHS was completed on 28 June 2006 which referred me for BT Physio and a need for an OHS follow-up. As you can appreciate, I am very concerned with this situation to date.”
(19) The claimant did not receive any response to this e-mail of 14 June 2007.
(20) The claimant then pursued these issues with Ms Duggan, her second line manager. Ms Duggan agreed to pursue these issues and in particular, the question of delay with her first line manager.
(21) The claimant then had a telephone consultation on 9 July 2007 with an occupational health nurse employed by the respondent in Glasgow. While a tribunal should be careful not to trespass on matters of medical expertise, it seems a little odd, from a common sense point-of-view, that the respondent felt that a nurse sitting in Glasgow, and conducting a telephone conversation with the claimant, could assess whether an adjustable desk was appropriate as an ergonomic adjustment to her workstation.
(22) In any event, the nurse highlighted that the issue of physiotherapy was still outstanding. In her report, she also stated:-
“She also requires an adjustable workstation desk and it would be beneficial if one were ordered for her.”
“Should this be put in place, then she will be able to continue to provide an effective service to BT.”
(23) At this stage, some 10 months had elapsed from the delivery and adjustment of the orthopaedic chair and it had been recommended by OHS that it was at the point of that delivery that a further workplace assessment should have taken place.
(24) A course of physiotherapy was provided by the respondent in Belfast with special paid leave and paid travelling expenses to facilitate the claimant attending that course. Paid leave and travelling expenses for this purpose were withdrawn by the respondent with two sessions remaining in the planned course of physiotherapy.
(25) On 2 October 2007, the claimant sent an e-mail to Ms Duggan, copied to her first line manager, complaining about various issues and pointing out that an adjustable desk had still not been provided as recommended by the OHS.
(26) The claimant had taken on a coaching role in the respondent’s organisation but on 2 October 2007 she withdrew from that role. Having examined her e-mail of that date and having considered her evidence to the tribunal, the tribunal is satisfied that she did this because of a failure to agree the arrangements for a temporary pay increase in respect of this role and for no other reason.
(27) The claimant was off sick for five days in October 2007 with ear and neck pain.
(28) The claimant continued to log complaints on “informe” about her back pain and about the respondent’s failure to provide the adjustable desk as recommended by OHS. She also complained about the delay in resolving the first grievance.
(29) The adjustable desk was finally provided on 7 December 2007. This was some 15 months after the orthopaedic chair had been provided which was itself provided some four months after it had been recommended by OHS. The tribunal heard no satisfactory explanation for these delays.
(30) The claimant was at work from that point for some three to four weeks (excluding the Christmas period) before her father died and her stress/bereavement sick absence commenced on 14 January 2008. There was no evidence that the adjustments put in place by the respondent on medical advice were unsuccessful. The tribunal was referred to no evidence of any difficulty experienced by the claimant with back pain during this period or subsequently. The claimant’s unchallenged evidence was that the adjustments put in place, eventually and with some considerable delay, by the respondent, to cope with her back pain, i.e. the combination of the orthopaedic chair and the adjustable desk, were successful.
At a meeting on 25 June 2008, shortly before she was dismissed, the claimant’s comments in this respect were recorded as:-
“Majella (Duggan) expressed her concerns that Sharon may not be able to provide regular and effective service in the future and Sharon advised that she will be able to provide such a service as a lot of her issues have now been resolved. She stated that her family members are helping and that physio has helped. She explained that she is feeling good and cannot foresee any future absences.
Majella asked if Sharon has had any further treatment on her back and Sharon advised that she has had no treatment since she stopped physio in Belfast in October 2007. Majella asked if Sharon is still having problems with her back and Sharon stated that she has problems as stated in the x-ray report. Sharon went on to advise that she has to manage her back problems and have proper seating and desk.
Majella explained that the desk and chair are already in place and asked if Sharon knew of any further equipment that would help her condition and if her physiotherapist recommended anything further. Sharon stated that she will need an O/T assessment on her chair.”
The tribunal notes that the claimant, in response to a direct question from Ms Duggan, raised the issue of a further assessment of her orthopaedic chair. That request was not put forward by any of the respondent’s witnesses as a reason for their belief that absences would continue and, in fact, was not mentioned by the respondent’s witnesses at all. The information that the respondent had from the claimant at the time of dismissal, in relation to her back problems and the effectiveness of the adjustments, was overwhelmingly positive.
(31) The tribunal therefore concludes, on the balance of probabilities, that there was at least a significant possibility, from 7 December 2007 onwards, that any further absences in relation to back pain would be minimised. If it were otherwise, it is difficult to see why the respondent had, eventually, put those adjustments in place.
(32) On 28 December 2007, the claimant was given casual leave because she had been sitting up all night with her terminally ill father. Eight days special paid leave was then granted to the claimant on various dates in connection with her father’s illness and in connection with his subsequent death.
(33) The claimant’s final period of sick leave commenced on 14 January 2008 and lasted until 30 June 2008.
(34) The claimant completed a questionnaire in relation to this final period of absence. That questionnaire stated clearly that the reason for the absence was “bereavement related”. The reason was further described as “my father’s death”. The medical certificates provided by the occupational health nurses throughout the absence related solely to “bereavement related stress”. There was frequent contact between the claimant’s first line manager and the claimant and that contact was recorded. There is no reference in that record to any reason for the absence other than bereavement stress. In particular, there is no mention of back pain or work related stress.
(35) The respondent had a standard procedure for dealing with long-term sick absence. In summary, this provided for an initial home visit by the first line manager together with a possible OHS referral, a second line manager review, a second home visit by the first line manager, a second line manager’s “resolution meeting” and a decision at that point. It also provided for an appeal to be heard by the third line manager.
(36) An undated form completed by the claimant’s GP, early in her absence, described the reason for absence as:-
“Bereavement reaction and stress symptoms.”
It gave the exact cause as:-
“Sharon’s father died on 4 January 2008. Following the funeral period, Sharon remained distressed (++) and has found everyday things difficult to cope with. She is easily upset and stressed.”
There was no mention of back pain or work related stress in this document and it indicated a possible return to work in two to three months.
(37) An OHS nurse’s certificate dated 8 February 2008 confirmed bereavement stress and gave no return to work date.
(38) A sick note completed by the claimant’s GP on 3 March 2008 noted that mechanical back pain was “n/a” and referred only to bereavement reaction and stress symptoms.
(39) The notes of the telephone consultation between the claimant and an occupational health nurse on 31 March 2008 referred only to bereavement. Back and neck pain or workplace stress did not feature in this conversation.
(40) The report generated by that telephone consultation stated that it was a known fact that counselling in relation to bereavement should not normally take place until six months after the death but then went on at a later point to indicate that Sharon was going to contact CRUSE in connection with such counselling in the near future.
(41) A first home visit was conducted by the claimant’s line manager on 22 February 2008 on BT premises. The report of that meeting, compiled by the line manager on the basis of the claimant’s comments gave a likely return to work date of “less than three months” It stated that the claimant would avail of counselling when she felt up to it.
(42) Ms Duggan, the second line manager, invited the claimant to a review meeting. That letter inviting her to that meeting indicated that:-
“If your absence level is likely to last for much longer, I will need to reconsider the arrangements for covering your job and your own future with BT.”
This was not a meeting at which any final decisions about the claimant were to be made.
(43) That review meeting was to take place on 4 April 2008. However the claimant wanted trade union representation at the meeting and it was adjourned to allow for this to be arranged.
(44) The review meeting was reconvened on 15 April 2008. The report of that meeting recorded an anticipated return to work date of one month. Ms Duggan wanted to refer the claimant to OHS for a face-to-face medical appointment. At that point there was a sick certificate valid up to 24 April 2008. Ms Duggan took advice from Accenture, to whom some Human Resources functions have been outsourced, and was persuaded that a face-to-face medical examination or indeed any further medical report was unnecessary.
(45) Ms Duggan’s evidence to the tribunal was that she expected the claimant to return on the expiry of the current sick certificate, i.e., on 24 April 2008 and that she had been “personally disappointed” when a further sick note issued for a further four weeks. Since the record of the review meeting indicated a return to work date as “one month” and since it recorded:-
“24 April 2008 review with Doctor to obtain back to work date”,
and since it did not specifically indicate anywhere that a return date was expected precisely on 24 April, it is difficult to reconcile that record which had been completed by Ms Duggan with a settled expectation, on her part, of a return to work on that date. However, the tribunal concludes that Ms Duggan had expected the claimant’s return, if not on 24 April 2008, then “within weeks rather than months”.
(46) Ms Duggan again sought
advice from Accenture on the advisability of a
face-to-face medical examination. She was again persuaded that there was no
point in obtaining further medical advice.
(47) A second home visit was conducted by the first line manager on 4 June 2008. This was again on BT premises. The anticipated return to work date was given as one month and it was noted that the current certificate at that time would expire on 19 June 2008. The claimant had not contacted either BT counselling services or CRUSE at that stage.
(48) Ms Duggan issued a further letter to the claimant inviting her to the “resolution meeting”. That letter stated:-
“I am now giving serious consideration to the termination of your employment on grounds of capability due to ill health.”
The letter offered an interview.
(49) That interview, i.e. the “resolution meeting”, took place on 25 June 2008. The claimant attended with a trade union representative. The claimant’s absence history was discussed together with the various adjustments which had been put in place by the respondent together with delays which had been experienced in relation to those adjustments. The claimant was asked if there was anything further she needed in respect of back pain. She stated that she needed a further occupational therapist assessment in relation to her chair but did not anticipate any further absence.
(50) On the following day, 26 June 2008, Ms Duggan concluded that the claimant was unlikely to be able to provide further regular and effective service and decided to dismiss her on notice of the grounds of capability due to ill health.
(51) The reasons given in evidence by Ms Duggan were firstly that the claimant had not helped herself by starting counselling with CRUSE; she had stopped attending the physiotherapy provided by the respondent in Belfast once the special paid leave and travelling expenses were withdrawn; there was no evidence of her returning to work other than her stating that she would return and this had occurred on several occasions in the past; Ms Duggan could only conclude that her sick absences would continue into the future and reasonable adjustments were not an option because she needed to be present at work.
(52) Ms Duggan made this
decision on 26 June. On 19 June the claimant had e-mailed the
respondent to indicate that she would be returning to work on 30 June.
This
e-mail was not mentioned by Ms Duggan in her evidence in chief but when it
was raised in cross-examination, the receipt of that e-mail was not challenged.
The tribunal therefore concludes that Ms Duggan, at the time she made the decision to dismiss was aware that the claimant had indicated her intention to return to work four days later.
(53) The termination letter was handed personally to the claimant on 1 July on her second day back at work.
(54) Ms Duggan stated that she had considered updating the available medical evidence but on advice from Accenture, she concluded that it would not be worthwhile. On 4 July 2008, some three days after the date on which the dismissal notice was handed to the claimant and within the five week notice period, Doctor Lygo of OHS was asked to provide a medical report but only on the narrow issue of whether or not the claimant met the criteria for medical retirement within the terms of the respondent’s pension scheme. Doctor Lygo indicated that he did not believe this to be the case. In that report he stated in relation to the bereavement/stress absence:-
“This would be expected to be a temporary matter and a temporary influence on capacity for work, and I believe the normal expectation would be for this to take place without a heavy toll of associated absence as well.”
In relation to the claimant’s back problems he stated:-
“Indeed Ms Gallagher appears to have well preserved functionality for a range of personal and social activities including swimming, attendance at the gym and walking, and work of this sort (allowing as it does mixed posture and mobility without heavy physical demand) would appear to be highly suitable. There is no serious structural abnormality in the spine that would be incompatible with this sort of work and I believe that normal expectation would be of the structural state of her spine not objectively representing any major obstacle to successful continued employment.”
(55) On 17 July 2008, the claimant’s GP provided a medical opinion for the respondent. In relation to the bereavement/stress absence, the GP stated that he had been aware that the claimant did not avail herself of any counselling but that was not unusual, in his opinion, in relation to cases of bereavement. In relation to the claimant’s back problem he stated:-
“Sharon does suffer with a back complaint which affects her periodically but this can be controlled with simple analgesia and on occasion physiotherapy. Sharon’s back problem does not generally limit her functionality; she can do normal activities, walks regularly, goes to the gym on my advice, swims regularly.”
(56) Mr Bell, on advice from Accenture, took the view that the appeal should await the determination of the two outstanding grievances. On 9 September, some two months after the receipt of the dismissal letter, the claimant pressed him for a date for the appeal hearing. He replied to indicate simply that the latest advice he had received was to wait until the grievance cases had been concluded. On 18 December 2008, a further three months later, Mr Bell e-mailed the claimant indicating that he was, by that stage, “very concerned” about the length of time it
was taking to arrange an appeal hearing and, by letter, he suggested hearing the appeal on either the 22 or 23 December. The claimant pointed out that the two grievances were still not completed and stated in an e-mail of 19 December that:-
“I would therefore request we wait as agreed in our e-mails dated September 2008 until both grievance procedures have been completed before commencing on my appeal.”
The claimant suggested in her evidence to the tribunal that the phrase “agreed in our e-mails” meant simply that Mr Bell had agreed the delay with Accenture and that it should not be read as referring to an agreement between the claimant and Mr Bell to delay the hearing of the appeal. The tribunal concludes that that is not credible and that the position was that at this stage, at least, the claimant was content that the grievances should be completed before the appeal was heard.
(57) From Mr Bell’s point-of-view, his concern appears to have been that any appeal in relation to the grievances might well have to involve him and he wanted to avoid any conflict of interest which might emerge if he dealt with the dismissal appeal hearing in advance of the final conclusion of the grievances. When asked by the tribunal whether there was any reason why the respondent, as a large employer, could not simply have arranged for the dismissal appeal to be heard by a different line manager or why it could not have been arranged for any involvement in the determination of the grievances to be directed to a different manager to facilitate the early hearing of the appeal, no satisfactory explanation was given.
(58) The appeal was not heard until 18 June 2009. This was almost a full year from the date of the dismissal letter. The claimant handed in a lengthy document at the appeal hearing listing a range of complaints about her treatment and also handed in various medical reports.
(59) Mr Bell had obtained a further report from Doctor Lygo. Mr Bell had asked for a further opinion on the likelihood of regular and effective service in the future and had suggested a face-to-face medical examination. Doctor Lygo set out his views in lengthy and somewhat discursive opinion which included the following:-
“I must say that I would not
recognise a clear reason to progress to a further
face-to-face consultation at this stage and I cannot see how it would add value
to your considerations. I believe you will already be aware of my previous
occupational health advice that there was no basis within Ms Gallagher’s
medical history to regard her as having a problem that should prevent her from
giving regular and effective service into the future. Although her past
absences have come from a variety of causes, I focus mostly on the two most
recent prominent issues of mechanical back pain and her bereavement. Neither
of these would be expected to prevent her regular and effective service through
any medical illness and neither would be expected to run a permanent and
unremitting course, such that her experience of problems on occasion in the
past would be indicative of continuing problems on a constant basis into the
future. Indeed recovery and a return to normality would be expected in both
situations, and if Ms Gallagher is now indicating to you that this has
indeed now taken place then far from being unexpected this would of course be
fully aligned with our expectations - and fully in line with the
terms of my previous report.”
He continued:-
“In short, therefore, I believe that there is no medical reason to lead to an expectation of an undue absence pattern into the future, but there is also no specific medical reason to have done so in the past. The personal and discretionary factors that can influence an absence pattern are likely to continue unless altered, and if so are also likely to lead to repeated patterns into the future. It is, after all, Ms Gallagher’s absence pattern that you appear to be considering, alongside consideration of the risk of this repeating into the future - rather than the expression of medical conditions that should predictably prevent her from being able to achieve this (of which I believe there are none).”
He continued:-
“Personal factors are not amenable to medical prediction and so I certainly could not claim to say whether they will or will not be expressed in the same way into the future. It would not appear, however, that there is any clear new medical reason for believing that this would not be the case and it would be far from unusual to regard her past absence history under such circumstances as the best indication available to you as to what might well be expected to happen in the future - particularly in the face of similar physical experiences, life pressures or life events.”
(60) It appears to the tribunal that Doctor Lygo’s lengthy opinion could be summarised as indicating that there was no medical reason for a continued pattern of absences into the future. However the claimant’s past history of absences could well be a reliable indicator of a future absence pattern but this was an indicator rather than a medical prediction.
(61) Mr Bell affirmed the dismissal on the basis that he concluded that Ms Gallagher’s absence pattern was likely to continue into the future and that it was likely that she would be unable to give regular and effective service.
(62) A further paper exercise under the respondent’s internal procedure which was known as a “high level review” was concluded by a Mr Stephen Rodgers and this again affirmed the dismissal.
Internal Grievances
(63) The first grievance lodged by the claimant was lodged on 16 October 2007. It raised a single issue, i.e., a complaint that the claimant’s then first line manager, Mr Owen McCaffrey had refused further paid special leave in relation to the physiotherapy provided by BT in Belfast. That grievance was determined at first instance by a Mr Philip McKenna who determined that the claimant had not been treated unfairly. He pointed out that on four separate occasions, the claimant had been provided with special paid leave to attend physiotherapy and that the physiotherapist’s costs and the claimant’s travelling expenses had also been provided. In relation to the two further physiotherapy appointments, the claimant had been offered unpaid special leave, annual leave or a procedure whereby she could have made up the time in other ways. She had never actually been prevented from attending the physiotherapy appointments and the respondent had been prepared throughout to pay the physiotherapist’s fees.
(64) The claimant escalated this to the second stage of the grievance procedure and added, in addition to the original complaint, complaints about the procedure adopted in this case in relation to the grievance, principally about delay. The first stage of the first grievance above was not completed until 10 July 2008, some 15 months after the date of the grievance and after the claimant had received her dismissal letter. The claimant set out her complaints in some detail over five typed pages.
(65) As part of the second stage of the grievance procedure, the investigating manager, Ms Angela Melville met with the claimant and her trade union representative on 5 August 2008 and had four other meetings with various members of staff. On 3 October 2008, Ms Melville wrote to the claimant indicating that she had partially upheld the grievance on the basis that there had been a breach of the respondent’s grievance policy and procedure. Ms Melville also concluded that the respondent should have provided paid special leave for the final two physiotherapy appointments. However she concluded that there had not been any bullying, victimisation, harassment or disability discrimination shown to the claimant.
(66) The second grievance was lodged by the claimant shortly after receipt of the dismissal letter. In a seven page typed document, the claimant complained of bullying, harassment and victimisation from her line managers. She outlined the delays in the provision of reasonable adjustments which have been outlined earlier in this decision. She complained in particular about what she regarded as bullying from a particular first line manager Mr Love.
In relation to Mr McCaffrey, she complained that, on 1 January 2008, when her father had been ill, she had approached Mr McCaffrey during an overtime day to update him on the position and he had indicated that he was not working as her line manager on that day and that he could not arrange any special paid leave for her in that capacity. It was however accepted by the claimant that later that day Mr McCaffrey had arranged special paid leave for her on his own initiative and had then returned to her to inform her of this. She nevertheless complained of his “coldness”.
She also complained about an OHS Nurse who asked, after the death of her father, “well how did the funeral go?” She stated that she had been “very upset” at this remark.
(67) Ms Melville conducted the first stage of this grievance and conducted 12 fact-finding meetings with the claimant and with various members of staff. On 3 October 2008 Ms Melville advised the claimant that she partially upheld her grievance as, in her view, Mr Love had bullied and harassed the claimant. That is a matter which is outside the remit of the current tribunal proceedings. She also concluded that Mr Love and Ms Duggan should have sought the claimant’s consent before passing on the results of a health questionnaire to members of management. She did not uphold the other allegations in relation to bullying, harassment, disability discrimination or victimisation.
(68) The claimant escalated this matter to the second stage of the grievance procedure on 19 October 2008. That second stage was determined by a Miss Claire Stout and the decision issued on 4 February 2009. Ms Melville’s conclusions at the first stage were upheld. In her decision letter, Ms Stout stated:-
“However, I am of the view that your management could generally have been more proactive and acted sooner in ensuring that measures were in place to help you to address some of the concerns that you raised with them. With hindsight, I do believe situations could have been handled more appropriately and the increasingly stressful impact that this was having on you went unrecognised.”
(69) The claimant applied for a high level Review of the second grievance. On 24 March 2009, the respondent determined that her application did not meet the criteria in the respondent’s internal procedure for such a review and the second grievance was concluded at that point.
Relevant Law
Unfair Dismissal
(70) Article 130 of the Employment Rights (Northern Ireland) Order provides:-
130-(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show:-
(a) the reason (or, if more than one, the principal reason) for the dismissal, and:-
(b) that it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this paragraph if it:-
(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do:-
(3) In paragraph (2)(a):-
(a) “Capability”, in relation to an employee, means his capability assessed by reference to his - health or any other physical or mental quality:-
(4) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer):-
(a) Depends on whether in the circumstances (including the size and administrative resources of the employers undertaking), the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and:-
(b) Shall be determined in accordance with equity and the substantial merits of the case."
(71) The burden of proof is on the employer to establish the reason for the dismissal and, in the circumstances of the present case, to demonstrate that it was a reason relating to the capability, i.e., the health or other physical or mental quality, of the claimant.
(72) In Dobbin v City Bus Limited [2008] NICA42, the Court of Appeal stated:-
“49- The correct approach to [equivalent GB Legislation] was settled in two principal cases, British Home Stores v Burchell [1980] ICR303 and Iceland Frozen Foods Limited v Jones [ICR17] - and explained and refined principally in the judgements of Mummery LJ in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR1283 and J Sainsbury v Hitt [2003] ICR113.
50 In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-
“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the Industrial Tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-
(1) The starting point should always be the words of [equivalent GB legislation] themselves:-
(2) In applying this section an Industrial Tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair:-
(3) In judging the reasonableness of an employer’s conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer:-
(4) In many, but not all, cases there is a band of reasonable responses to the employees conduct within which one employer might reasonably take one view, and another quite reasonably take another:-
(5) The function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case 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.”
(73) The Court of Appeal reviewed these authorities and approved them in the case of Rogan v South Eastern Health and Social Care Trust NICA 2010.
(74) The Court of Appeal in Andrew James Taylor v OCS Group Limited [2006] EWCA CIV 702 stated:-
“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 [equivalent GB legislation] requires the Employment Tribunal to approach its task broadly as an industrial jury. That means that they should consider the procedural issues together with the reason for the dismissal as they have found it to be. The two impact on each other and the Employment Tribunal’s task is to determine 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.
(75) In Spencer v Paragon Wallpapers Limited [1976] IRLR373EAT, the EAT determined that in cases where an employee is dismissed on grounds of ill health, the basic question that has to be determined when looking at the fairness of the dismissal is whether, in all the circumstances, the employer could be expected to wait any longer and if so, how much longer. Matters to be taken into account are the nature of the illness, the likely length of the continuing absence, the need of the employer to have done the work which the employee was engaged to do in the circumstances of the case.
(76) In Selvarajan v Wilmot [2008] IRLR824, the Court of Appeal considered a case in which there had been substantial delay on the part of an employer in completing the statutory disciplinary and dismissal procedure. It stated at paragraph 26:-
“Completion of the procedure
is not made expressly or impliedly conditional on, or subject to, compliance
with the general requirements. All the prescribed steps in the applicable
procedure may be completed, even if there has been
non-compliance with other procedural requirements such as timetabling
standards. In other words, non-compliance with the stipulated requirements is
relevant to deciding, in a case where there is not been completion, who
is responsible for the
non-completion. Where there has been completion of the procedure as here, it
is futile to enquire to whom the non-completion is to be attributed.”
(77) Therefore the fact that the employer in the present case substantially delayed the hearing of the appeal does not, of itself, automatically render the dismissal unfair for the purposes of the Employment (Northern Ireland) Order 2003. The issue of whether such a delay makes the dismissal unfair (although not automatically unfair) or whether it is one of a number of factors which makes a dismissal unfair remains to be determined by the tribunal in the circumstances of each case.
Disability Discrimination
(78) 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.”
(79) 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 are mobility, physical co-ordination, and the ability to lift, carry or otherwise move everyday objects.
(80) The onus is on the claimant to prove that, in the relevant period, when the alleged acts of discrimination took place, she was disabled for the purposes of the 1995 Act. In Ross v Precision Industrial Services Limited and DuPont NICA2005, 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.”
(81) In Goodwin v Patent Office [1999] IRLR4 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?
(c) Is the adverse effect substantial?
(d) Is the adverse effect long-term?
Decision
Disability Discrimination
(82) The first issue to determine in this respect is whether or not the claimant was disabled for the purposes of the 1995 Act. The claimant opened her case by making it plain that she was alleging only that her back problem amounted to a disability for the purposes of the 1995 Act. She made no such claim in respect of mental health or any other health issue. As indicated above, the onus of proof in this respect rests squarely with the claimant. The only oral medical evidence produced in the course of tribunal hearing was the evidence given by Doctor Pendleton. He made it clear in the course of his evidence that when he was talking about the effects of mechanical back pain on an individual’s ability to carry out normal day-to-day activities, he was referring in general terms to the population at large and not specifically to the claimant. The only specific oral evidence produced by the claimant in this respect was a statement earlier in her evidence to the effect that she had been told by a GP at one time to shift her handbag from one shoulder to another and to avoid lifting heavy weights. There was no indication as to whether that latter instruction was a general instruction for a lengthy period of time or whether it related to a brief period following a particular bout of back pain. Furthermore there was no indication as to what was meant by the GP in relation to heavy weights or indeed what specific restrictions her back condition imposed on her ability to carry out any of the day-to-day activities mentioned in the Act. The GP was not called to give evidence. To the contrary, the evidence produced in the course of the internal dismissal and appeal procedure and in the course of the
tribunal hearing made it plain that the claimant, at the relevant times, was actively pursuing a programme of walking and swimming and going to the gym. It was equally clear that during the lengthy period (166 days) of stress bereavement absence, there was no complaint in relation to back pain. None of the medical certificates refer to it and the reports submitted by Doctor Pendleton and by the claimant’s GP do not provide any basis upon which the tribunal could determine that there had been a substantial effect or indeed any significant effect, on the claimant’s ability to carry out any of the specified day-to-day activities.
(83) The tribunal has to have regard to the fact that this case has been running for a considerable period of time. It was adjourned at the claimant’s request specifically to enable the claimant through her solicitor to obtain medical evidence on this precise point; i.e., whether or not she was disabled at the relevant times for the purposes of the 1995 Act. That medical evidence has not been forthcoming and the only conclusion the tribunal can draw is that that evidence does not exist.
(84) Since the onus of proof in this respect rests on the claimant, and the claimant has failed to discharge that burden of proof, the tribunal can only conclude that the claimant was not at the relevant times, disabled for the purposes of the Act.
(85) The tribunal therefore dismisses all the claims made under the Disability Discrimination Act 1995.
Unfair Dismissal
(86) Several factors, in combination, have led this tribunal, after considerable deliberation, to conclude that the dismissal was unfair within the meaning of the 1996 Order:-
(i) When an employer is contemplating the dismissal of an employee on the ground of capability (ill health), that employer should properly investigate the situation and obtain appropriate medical advice.
Ms Duggan relied on the report of the OHS nurse dated 31 March 2008. That report was the result of a telephone consultation rather than a medical examination. It was also three months old when Ms Duggan made the decision to dismiss the claimant. Ms Duggan requested that the medical opinion be updated by a face-to-face medical examination of the claimant. She was persuaded by Accenture that this was not necessary. Managers who are contemplating the dismissal of an employee on the ground of ill health cannot abrogate their responsibility, to ensure that they have appropriate medical evidence, to others and Ms Duggan should have followed her first instincts in this matter. Dr Lygo was tasked, about this time, to consider whether the claimant satisfied the criteria for medical retirement and it would have been possible for the respondent to have asked him to update the medical evidence and to have provided a proper report on whether the claimant was likely to render regular and effective service in the future. This was not done.
(ii) Similarly, Mr Bell, when determining the claimant’s appeal against dismissal relied on Dr Lygo’s final opinion. According to the claimant’s unchallenged evidence, Dr Lygo had never examined the claimant. He had never even
spoken to her on the telephone. His view that, in general, an individual’s past attendance record could be an indicator of their future attendance record was a relevant factor to be considered but its weight, for a reasonable employer, would have been diminished by the lack of an examination, and the apparent lack of any consideration of the effectiveness, or otherwise, of the reasonable adjustments put in place to deal with the claimant’s back problem, or the claimant’s individual reaction to her father’s death. Mr Bell also sought a face-to-face medical examination but was dissuaded.
(iii) Ms Duggan was influenced by the claimant’s failure to take up the offer of bereavement counselling earlier than she did. When it was pointed out to her, in cross examination, that the OHS report of 31 March 2008 indicated that a delay of 6 months was normal for bereavement counselling, Ms Duggan indicated that she disagreed. The basis of any such disagreement is unclear and the tribunal concludes that this was not the attitude of a reasonable employer.
(iv) The tribunal has to consider all the circumstances of the case. The respondent’s decision to dismiss was clearly based, in part, on the claimant’s absences for back and neck pain. The respondent’s approach to the reasonable adjustments recommended by OHS was dilatory at best. As a result of the respondent’s failure to put those adjustments in place promptly, there had been no opportunity to properly trial the effectiveness of those adjustments before the death of the claimant’s father occurred and her absence on the ground of stress/bereavement started on 14 January 2009. A reasonable employer, having eventually put adjustments in place, would have assessed their effectiveness before reaching an opinion on the likelihood of future absences on the ground of back pain.
(v) It is primarily the employer’s responsibility to ensure that an appeal against dismissal is conducted within a reasonable timeframe.
A large employer can be expected to use its resources to avoid conflicts of interest and to ensure that the appeal process, and indeed any parallel grievances, are resolved quickly. A delay of one year is remarkable, and given that the claimant had promptly secured alternative employment, calls into question the rationale of any such appeal procedure.
It is clear that the claimant was, at least at one point, similarly concerned that the grievances should be concluded before the appeal was heard but it was up to the respondent to ensure the speedy resolution of those grievances and, if that was not possible, to ensure that any potential conflicts of evidence were avoided.
(vi) In relation to the 166 day absence for stress/bereavement following the death of her father, Mr Bell relied on Dr Lygo’s opinion, that such an absence might be repeated. It is not entirely clear why Dr Lygo felt this would be the case. As indicated above, he had not examined or even spoken to the claimant. While other “life events” and indeed other bereavements might be anticipated, Mr Bell’s eventual conclusion that regular and effective service was unlikely does not seem to be grounded on any clear medical evidence.
(vii) The respondent did not seek, during the internal procedure or before this tribunal, to allege that the claimant was not genuinely ill during her absences.
(87) The tribunal is conscious of the danger of “substitution”, i.e., the danger of putting itself in the position of the respondent and in effect, re-making the decision. The tribunal can only hold that a dismissal is unfair if it is a decision which a reasonable employer could not have made. The tribunal is satisfied, after some anxious consideration, that this is the situation in the present case. The tribunal concludes that a reasonable employer could not have dismissed the claimant in all the circumstances of this case.
(88) This is not a case where a Polkey deduction or a contributory conduct deduction would be appropriate.
Compensation
(89) Schedule of Loss
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1. |
Details |
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Net monthly pay: |
£1,544.93 |
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Net weekly pay: |
£356.52 |
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Gross weekly pay: |
£419.71 |
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DOB of Claimant: |
22 March 1966 |
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Period of Service: |
29 March 2005 |
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Complete continuous service: |
3 Years |
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Effective date of termination: |
5 August 2008 |
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Date of new employment: |
7 September 2008 |
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Age at effective date of termination: |
42 |
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2. |
Basic Award |
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Running Total of Loss |
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2 x 1.5 x £330 |
+ |
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1 x 1 x £330 |
= |
£1,320.00 |
£1,320.00 |
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3. |
Loss of Statutory Rights |
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Compensation for loss of statutory rights |
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£250.00 |
£1,570.00 |
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4. |
Compensatory Award |
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4.1 |
Loss of earnings from |
1 month x £1,544.93 |
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£1,544.93 |
£3,114.93 |
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4.2 |
Benefits received: |
6 August 2008 |
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[£276.58] |
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4.3 |
a. |
Loss of earnings £1,544.93 |
1 month x £800.69 |
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£800.69 |
£18,359.30 |
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b. |
Loss of earnings from 7 October 2008 to date of hearing 16 August 2010:
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22 months |
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£14,443.68 |
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£1,544.93 - £896.95 |
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5. |
Pension Loss |
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5.1 |
Employer’s matched contribution: 4% net monthly pay = £61.80 |
24 x 61.80 |
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£1,483.20 |
£19,842.50 |
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Total Loss: |
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£19,842.50 |
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(90) The tribunal concludes on the balance of probabilities that the claimant could have obtained alternative and equally paid employment within two years and does not extend the compensatory award beyond the date of the hearing. The tribunal therefore awards unfair dismissal compensation of £19,842.50 against the first named respondent only.
(91) The claimant claimed Jobseekers Allowance for approximately one month from 6 August 2008 to 9 September 2008 before securing alternative employment and the parties attention is drawn to the recoupment notice attached to this decision.
(a) The monetary award is £19,842.50.
(b) The prescribed element is £1,544.93.
(c) The relevant period for that element is 6 August 2008 to 9 September 2008.
(d) The excess of (a) over (b) is £18,297.57.
(92) The respondent, after the close of evidence, raised for the first time a costs application in relation to an earlier application to adjourn the hearing of this case. This application had not been mentioned during the frequent discussions about timetabling and other “housekeeping” issues in the course of the hearing. The tribunal heard no evidence on which it could conclude that the claimant’s application to adjourn had caused any financial loss and the application for costs is refused.
(93) This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.
Chairman:
Date and place of hearing: 16-19 August 2010, Belfast.
Date decision recorded in register and issued to parties:
RECOUPMENT NOTICE
Case Ref No: 1395/08
CLAIMANT: Sharon Gallagher
RESPONDENT: 1. BT Plc
2. Majella Duggan
ANNEX TO THE DECISION OF THE TRIBUNAL
STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME SUPPORT
1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996.
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£ |
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(a) Monetary award |
19,842.50 |
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(b) Prescribed element |
1,544.93 |
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(c) Period to which (b) relates: |
6 August 2008 – 9 September 2008 |
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(d) Excess of (a) over (b) |
18,297.57 |
The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.
2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.
the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.
