McGrath v Gerard Presley t/a GMK Contrac... [2012] NIIT 02980

THE INDUSTRIAL TRIBUNALS

CASE REF: 2980/11

CLAIMANT: Martin McGrath

RESPONDENT: Gerard Presley t/a GMK Contracts

DECISION

The unanimous decision of the tribunal is as follows:-

1. That the claimant was a disabled person within the meaning of the Disability Discrimination Act.

2. That the claimant was discriminated against by the respondent on the grounds of his disability and the respondent is hereby ordered to pay to the respondent the sum of £5,500 by way of compensation for injury to feelings together with the sum of £7,072 in respect of loss of earnings arising out of the respondent’s failure to comply with the duty to make reasonable adjustments.

3. That the claimant was automatically unfairly dismissed by the respondent and the respondent is hereby ordered to pay to the claimant the sum of £2,400 way of basic award for such unfair dismissal.

4. That the claimant is entitled to 4 weeks notice pay and the respondent is hereby ordered to pay to the claimant the sum of £1,360 net in respect of such notice pay.

5. That holiday pay for 19.5 days is due to the claimant and the respondent is hereby ordered to pay to the claimant the sum of £1,326 in respect of such holiday pay.

Constitution of Tribunal:

Chairman: Ms J Turkington

Members: Mr T Waite

Mr M McKeown

Appearances:

The claimant appeared and represented himself.

The respondent did not appear and was not represented.

The Claims

1. The claimant presented the following claims to the tribunal:-

(a) A claim of disability discrimination in relation to the claimant’s dismissal;

(b) A claim of unfair dismissal;

(d) A claim in respect of notice pay; and

(e) A claim for holiday pay.

The Issues

2. The issues which the tribunal had to determine were as follows:-

(a) The correct identity of the respondent. At the outset of the hearing, the Chairman sought to clarify the identity of the claimant’s former employer. The claimant understood that he was employed by Mr Gerard Presley who traded under the name of GMK Contracts. The title of the proceedings was therefore amended accordingly;

(b) Whether the claimant was a disabled person within the meaning of the Disability Discrimination Act;

(c) If so, whether the claimant had been discriminated against on grounds of his disability when his employment was terminated by the respondent;

(d) Whether the claimant had been unfairly dismissed by the respondent;

(e) Whether the claimant received notice of termination of his employment and, if not, the sum to which the claimant was entitled in respect of such failure to give notice; and

(f) Whether the claimant was entitled to holiday pay on termination of his employment and if so, the amount of holiday pay to which the claimant was entitled.

Disposal of the claim in the absence of the respondent

3. The respondent did not appear at the hearing. The tribunal was satisfied that the Notice of Hearing had been sent to the respondent at his last known address in good time before the hearing. The respondent had not entered a response form and therefore in accordance with Rule 9 of the Tribunal’s Rules of Procedure would not in any event have been entitled to take part in the hearing. The respondent had not contacted the Office either on the day of the hearing or before. Accordingly, the tribunal decided that it was appropriate to proceed to hear the claim in the absence of the respondent.

Sources of Evidence

4. The tribunal heard evidence from the claimant and was also referred by the claimant to a number of documents. The tribunal also considered the contents of the claim form. The respondent had not lodged a response form. The claimant did not produce any medical evidence to the tribunal.

Findings of Fact

5. HHHHaa

aving considered the evidence given by the claimant, the documents referred to by the claimant and the content of the claim form, the tribunal found the following relevant facts:-

(a) The claimant who was born on 14 November 1961 had worked for the respondent previously, but the relevant period of employment began in April 2007. The claimant was employed as a joiner and was based in the respondent’s yard at Carryduff. The respondent employed approximately 10 or 11 employees in total.

(b) The claimant normally worked 39 hours per week and his wages were £11.50 per hour gross (£448.50 per week gross), £340 per week net.

(c) For some years, the claimant had to be careful about lifting heavy weights due to a medical condition involving a hernia, although this had limited impact on his work.

(d) On the morning of Monday, 4 April 2011, the claimant was working in the yard when he noticed a problem with his hernia. He asked the respondent if he could go to the hospital. After being examined at the hospital, the claimant was admitted and operated upon immediately as an emergency case. The claimant woke up 2 or 3 days later in intensive care. He was later informed that he had suffered both strokes and heart attacks whilst in surgery.

(e) Initially, after his surgery, the claimant could not speak, but his speech has since been restored. His arm was just hanging by his side. Further, the claimant became depressed and is still taking anti-depressant medication.

(f) Since the surgery in April 2011, the claimant has had ongoing problems down his left side. The grip in his left hand is reduced. When eating, the claimant always used his knife in his left hand, but he is no longer able to do so. He therefore has difficulty in cutting up his food. He finds it difficult to put on his trousers and socks and he also finds it difficult to button up his trousers. The claimant is not able to peel potatoes. His balance is also affected and he has a tendency to fall. The claimant used to drive a car, but no longer does so.

(g) The claimant has been told that he suffered some brain damage as a result of the strokes he suffered during his surgery and he has received treatment at the Regional Acquired Brain Injury Unit at Musgrave Park Hospital. His condition is to be re-assessed this year.

(h) The claimant did not return to work after the surgery in April 2011 and remained off on sick leave. He submitted in-patient medical certificates to the respondent in respect of his time in hospital and GP’s certificates thereafter. The claimant received Statutory Sick Pay during this period. The claimant also phoned the respondent to stay in touch on a few occasions during his sickness absence. The claimant’s pay slips in respect of SSP were delivered to him by a colleague.

(i) The claimant went to the respondent’s yard in early October 2011. He wanted to pick up his tools so they could be used by someone else. He met the respondent. The claimant informed the respondent that he was due to attend the Brain Clinic in a couple of weeks and that “we’d go by what they say about whether I’m fit to work” and that he would speak to the respondent later.

(j) The claimant was aware that his entitlement to SSP was due to run out after 28 weeks around the middle of October 2011.

(k) On 14 October 2011, the claimant’s colleague delivered an envelope to him. When the claimant opened this envelope, it contained his P45. The claimant was extremely shocked by this. He understood that this meant that his employment was terminated immediately by the respondent. He had worked for the respondent for a long time and regarded him as a friend. This had come out of the blue as far as the claimant was concerned. He was very annoyed that the respondent had sent a colleague to deliver this envelope to him. The claimant phoned the respondent and asked him “what’s the crack with the P45?” The respondent replied that he believed the claimant would be better off “on the sick”.

(l) The claimant then sent a letter to the respondent setting out his position.

(m) At the time of the hearing, the claimant confirmed that his hand was improving. He considered that he could carry out some useful work for the respondent, for example measuring up jobs where his extensive experience as a joiner would have been useful. However, the claimant accepted that there would only have been enough work of that nature for 2 to 3 days per week. The claimant would have much preferred to work these hours only than not to be working at all.

(n) Since the termination of his employment, the claimant has been on benefits, namely Employment and Support Allowance.

(o) No other employees of the respondent were dismissed at the same time as the claimant.

(p) The respondent’s holiday year ran from January to December. The claimant was entitled to 5 weeks annual leave plus public holidays, including St Patrick’s Day and May Day. The claimant had only received 5 days paid holiday (at New Year) during 2011. The claimant had raised the issue of holiday pay with the respondent when he was in hospital at Easter.

Statement of Law

Disability Discrimination

6. Under the Disability Discrimination Act 1995 (as amended), a person is a disabled person where he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. “Long-term” is defined as lasting or being expected to last more than 12 months. “Substantial” is defined as being more than minor or trivial.

7. The Disability Discrimination Act makes unlawful a number of forms of disability discrimination. A tribunal should consider each of these where they are potentially relevant. Firstly, a person is directly discriminated against on the grounds of his disability if that person is treated less favourably than another person would be and the reason or grounds for that less favourable treatment is the disabled person’s disability.

8. Secondly, the Disability Discrimination Act also makes it unlawful to discriminate against a disabled employee for a disability-related reason. The Act states that an employer 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

(b) he cannot show that the treatment in question is justified.

9. The leading case in relation to discrimination for a reason related to disability is the House of Lords decision in London Borough of Lewisham v Malcolm [2008] UKHL 43, [2008] IRLR 700. Harvey on Industrial Relations and Employment law describes the impact of this judgment on claims of disability-related discrimination as follows:-

“the question now is how would the employer treat a non-disabled employee absent from work for the same length of time as the disabled employee also absent from work because of disability-related reasons. If the non-disabled person would have been dismissed, the disabled person has not been treated less favourably.”

10. Thirdly, an employer may come under a duty to make reasonable adjustments in order to accommodate a disabled employee. This duty arises where:-

(a) any arrangements made by or on behalf of an employer, or;

(b) any physical feature of premises occupied by the employer,

place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled. In such cases, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.

11. The extent of the duty to make reasonable adjustments was demonstrated in the case of Archibald v Fife Council [2004] UKHL 32, [2004] IRLR 651. In its judgment, the House of Lords stressed the positive nature of the duty to make reasonable adjustments and indicated that an employer may be obliged to discriminate positively in favour of disabled persons. On the facts, the claimant who was a disabled employee became liable to be dismissed because her disability meant that she was no longer able to carry out the duties she was employed to do. The House of Lords held that this amounted to an 'arrangement' which placed her at a substantial disadvantage compared to other employees. That triggered the duty to make reasonable adjustments, which might include transferring her to another position for which she was suited, without the need for competitive interview and selection.

Unfair Dismissal

12. The statutory dismissal procedure introduced by the Employment Rights (Northern Ireland) Order (“the 2003 Order”) applies in this case. In basic terms, the statutory procedure set out in Schedule 1 of the 2003 Order requires the following steps:-

Step 1 - written statement of grounds for action and invitation to meeting – the employer must set out in writing the grounds which lead the employer to contemplate dismissing the employee;

Step 2 – meeting – the meeting must take place before action is taken. The meeting must not take place unless:-

(a) the employer has informed the employee what the basis was for including in the statement the grounds given in it, and;

(b) the employee has had a reasonable opportunity to consider his response to that information. After the meeting, the employer must inform the employee of his decision and notify him/her of the right to appeal against the decision.

Step 3 - appeal – if the employee informs the employer of his/her wish to appeal, the employer must invite him/her to attend a further meeting. After the appeal meeting, the employer must inform the employee of his final decision. The employee must be afforded the right to be accompanied at any meetings under the statutory dismissal procedure.

13. By Article 130A (1) of the Employment Rights (Northern Ireland) Order 1996 (“the Order”), where the statutory dismissal procedure is applicable in any case and the employer is responsible for non-completion of that procedure, the dismissal is automatically unfair. A tribunal is required to consider whether the dismissal is automatically unfair under article 130A even where this issue has not been specifically raised by the claimant – see Venniri v Autodex Ltd [2007] UKEAT 0436/07).

Notice pay

14. By Article 118 of the 1996 Order, the notice required to be given by an employer to terminate the contract of employment of an employee is one week where the claimant was employed for a period between one month and two years and an additional week for each completed year of continuous employment thereafter.

Holiday pay

15. A worker’s entitlement to annual leave is set out in the Working Time Regulations (Northern Ireland) 1998. Regulation 13 provides that a worker is entitled in each leave year to a period of leave determined in accordance with that Regulation. A worker is entitled to 5.6 weeks paid holiday under the Regulations unless his entitlement to paid leave under this contract of employment is greater.

16. By regulation 14 of the Working Time Regulations 1998, where a worker’s employment is terminated during the course of his leave year and the proportion of leave taken by the worker is less than the leave accrued at the termination date, then the employer shall make him a payment in lieu of the leave which was accrued but not taken.

17. Regulation 16(1) provides:-

“(1)A worker is entitled to be paid in respect of any period of annual leave to which he is entitled under Regulation 13, at the rate of a week’s pay in respect of each week of leave.”

Conclusions

Conclusions – disability discrimination

18. The tribunal firstly considered whether the claimant was a disabled person within the meaning of the Disability Discrimination Act. The tribunal addressed each of the elements of the definition of disability in turn. It was clear on the basis of the facts found that the claimant suffered from both mental and physical impairments, namely depression and impairment in the use and functioning of his left arm and hand. By the date of hearing, these impairments, which had first affected the claimant in April 2011, had lasted for 12 months to a greater or lesser extent. The tribunal found as a fact that the claimant’s condition had impacted on a number of areas of day-to-day life such as eating, getting dressed, preparing food, balance and driving a car. The tribunal had no difficulty in concluding that there was an impact on the claimant’s ability to carry out day-to-day activities and that this impact was substantial, in the sense of being more than minor or trivial.

19. Accordingly, the tribunal had no hesitation in concluding that the claimant was a disabled person.

20. The tribunal then proceeded to reach conclusions in relation to each type of disability discrimination. In relation to direct discrimination on the grounds of disability, the tribunal reviewed the facts found by it. Direct discrimination on grounds of disability occurs where the employer treats the disabled person less favourably because of their particular disability. Nothing in the evidence present by the claimant suggested that the respondent had treated the claimant as he had because of his particular disability. The tribunal therefore concluded on the facts of the case that there was no direct discrimination against the claimant on the grounds of disability.

21. Consideration was then given to the issue of disability-related discrimination. In doing so, the tribunal applied the principles set out in the Malcolm case referred to above. In this case, the tribunal had to compare the respondent’s treatment of the claimant who had been off work sick for 6 months with how the tribunal believes the respondent would have treated a comparator who was also off sick for 6 months, but who was not disabled. In view of the respondent’s complete failure to follow any procedure in respect of the dismissal of the claimant, the tribunal believes it is likely that the relevant hypothetical comparator would have been treated in the same or similar way. The tribunal therefore concluded that the claimant was not subjected to disability-related discrimination.

22. Finally, the tribunal considered the duty to make reasonable adjustments. The tribunal is satisfied that the respondent was well aware of the claimant’s condition and difficulties following the surgery in April 2011. The respondent was aware that the claimant had needed to stay in hospital for some time and that he was continuing to attend the Regional Brain Injury Unit for assessment. As in the Archibald case, the claimant became liable to be dismissed because he was no longer able to carry out the duties he had previously been required to do under his contract of employment. The respondent then came under a duty to make such adjustments as were reasonable in the circumstances to accommodate the claimant by seeking to retain him in employment.

23. The claimant, whose evidence was of course unchallenged, suggested to the tribunal that he could have been redeployed or transferred to other work for which he had relevant experience, namely measuring up and pricing of jobs. The claimant believed that he had the skills and experience required for this type of work and the tribunal accepted his evidence on this point. The claimant readily and candidly accepted that there was insufficient work of this nature to keep him engaged full-time. However, the claimant was clear that he would have been willing to work 2 or 3 days a week only in order to keep himself in employment. The tribunal found the claimant’s evidence on this point to be reliable and credible. In applying the principles of the Archibald case, the tribunal considers that re-organising workloads so as to accommodate the claimant’s transfer to measuring up and pricing type duties would have been a reasonable adjustment which the respondent would be expected to make in order to retain the claimant in employment on a part-time basis and avoid dismissal of the claimant.

24. The tribunal is therefore satisfied that the respondent failed to comply with a duty to make reasonable adjustments in relation to the claimant’s employment and on this basis, the respondent has discriminated against the claimant on grounds of his disability.

Unfair dismissal

25. In light of the facts found, the tribunal was satisfied that the actions of the respondent in sending the claimant’s P45 out to him in an envelope delivered by a colleague amounted to an immediate dismissal. The claimant certainly understood that he had been dismissed and acted immediately on this understanding by telephoning the respondent. The respondent did not dispute that the claimant had been dismissed. He suggested that the claimant would be “better off on the sick”. The claimant then proceeded to apply for benefits. The tribunal therefore had no doubt that the claimant was dismissed by the respondent on 14 October 2011.

26. The claimant was dismissed by his P45 being sent to him. The respondent did not set out in writing the grounds on which he was contemplating dismissal of the claimant nor did he meet with the claimant nor was the claimant offered the right to be accompanied or any right of appeal. The tribunal had no hesitation in concluding that none of the requirements of the statutory dismissal procedure were complied with in this case. The tribunal was satisfied on the basis of the facts found that the non-completion of the statutory dismissal procedure was wholly attributable to the respondent. The tribunal therefore concluded that the dismissal of the claimant was automatically unfair. Furthermore, the respondent failed to show the reason for the dismissal of the claimant and that the reason was one of the statutory potentially fair reasons for dismissal. In the circumstances, it was not therefore necessary for the tribunal to consider whether the dismissal was fair in all the circumstances.

27. Accordingly, the unanimous decision of the tribunal is that the claimant was unfairly dismissed and that the claimant is entitled to compensation for such unfair dismissal. The tribunal concluded that there was no contributory fault on the part of the claimant.

Statutory redundancy payment

28. Since the tribunal has concluded that the claimant was unfairly dismissed, any entitlement of the claimant to a statutory redundancy payment will be effectively subsumed by the basic award for unfair dismissal.

Notice pay

29. In light of the facts set out above, the tribunal determined that the effective date of dismissal in this case was 14 October 2011. The dismissal of the claimant took effect immediately so that the claimant received no notice of termination. On the basis of his length of service, the claimant was entitled to 4 weeks notice of termination of his employment and therefore 4 weeks pay in lieu of notice.

Holiday pay

30. In relation to the claim for holiday pay, the tribunal was satisfied that the claimant was entitled to 5 weeks annual leave per holiday year together with public holidays. This was in line with the statutory minimum entitlement of 5.6 weeks. During 2011, the claimant had only taken 5 days leave at New Year. The claimant was therefore entitled to 4.6 weeks pay (pro rata) in respect of holiday accrued but not taken at the date of termination of his employment, namely 14 October 2011.

Compensation

Compensation for disability discrimination - Injury to feelings

31. The tribunal considered firstly whether it should make an award of compensation to the claimant in view of the discrimination against him that is the respondent’s failure to comply with the duty to make reasonable adjustments. The tribunal was satisfied that it was just and equitable to make an award of compensation in this case. The tribunal was further satisfied that the claimant was entitled to an award for injury to feelings. At the time of his dismissal, the claimant felt extremely shocked and annoyed by the manner in which he had been treated by the respondent. This annoyance continued and was evident at the hearing. The claimant was annoyed that the respondent had failed to consider how the claimant could be accommodated and retained in employment. The impact of the discrimination in this case was effectively that the claimant lost his job. The claimant had worked all his life and continues to find it difficult not to be in employment. The tribunal found the claimant to be entirely candid and straightforward in his account of how this treatment had impacted on him.

32. Given that the act of discrimination in this case, that is the failure to make reasonable adjustments, resulted in the claimant’s dismissal, the tribunal assessed the award for injury to feelings in this case towards the top end of the lowest of the bands in the Vento case. The tribunal then up-dated this figure in accordance with recent rulings both locally and by the EAT in order to take account of inflationary factors since the Vento bands were determined. Accordingly, the tribunal concluded that the appropriate award for injury to feelings in this case was £5,500.

Compensation for disability discrimination – Loss of earnings

33. Compensation in respect of discrimination is intended to put the claimant into the position he would have been in had the unlawful act of discrimination not occurred. The compensation must be “adequate and full” – see Marshall v Southampton and South West Hampshire Area Health Authority 1993 IRLR 445 ECJ. In this case, the unlawful act was the respondent’s failure to comply with the duty to make reasonable adjustments. The tribunal is of the view that, had the respondent complied with that duty, the claimant should have been transferred or redeployed to measuring up and pricing type duties for 2 days per week. The tribunal was mindful that, at the date of hearing, the claimant was still receiving benefits and had not returned to work. However, having heard the claimant’s evidence on this point, the tribunal believes that the claimant would have been fit to work carrying out measuring up and pricing type duties for 2 days per week. The tribunal was also satisfied that the claimant had the appropriate skills and experience for work of that kind.

34. The tribunal considered the period for which the claimant should be compensated for loss of earnings at the rate of 2 days pay per week. On the one hand, the tribunal factored in the claimant’s duty to seek to mitigate his loss by looking for alternative employment, but on the other hand, the tribunal took account of the difficult economic climate in Northern Ireland at the present time and the particular difficulties faced by disabled persons in obtaining employment. Balancing up all these factors and using its best judgment, the tribunal concluded that it was just and equitable to award the claimant loss of earnings at the rate of 2 days pay per week for a period of 12 months from the date of his dismissal, that is to 14 October 2012.

35. Compensation for loss of earnings is calculated as follows:-

£340 per week net x 0.4 (2 days per week) x 52 weeks = £7,072

Unfair dismissal

36. Having determined that the claimant was unfairly dismissed, the tribunal considered the appropriate remedy. The claimant did not seek reinstatement or re-engagement. The tribunal therefore considered that the appropriate remedy was compensation.

37. The claimant is entitled to a basic award for unfair dismissal calculated as follows. Loss of earnings is addressed under the heading of disability discrimination (see above).

(A) Basic award

Gross weekly wage is £448.50

Capped at £400 per week X 4 years service x 1.5 = £2,400

Notice pay

38. The claimant is also entitled to 4 weeks pay in respect of notice pay calculated as

follows:-

Award in respect of notice monies 4 x £340 = £1,360 (net)

Holiday pay

39. The claimant is also entitled to holiday pay calculated as follows:-

Holiday entitlement = 5.6 weeks per year. Claimant’s contract terminated on 14 October – 10 ½ months into the holiday year.

Pro rata holiday entitlement = 5.6 x (10.5 /12) = 5.6 x 0.875 = 4.9 weeks or

24.5 days.

Claimant had taken 5 days holiday.

Therefore outstanding holiday entitlement = 24.5 days – 5 days = 19.5 days.

Claimant’s daily net pay = £340 / 5 = £68.

Award in respect of outstanding holiday pay = 19.5 days x £68 = £1,326

Concluding remarks

40. The tribunal feels that it must put on record its dismay as to the treatment of the claimant by the respondent at the time of his dismissal. The tribunal was particularly dismayed at the manner in which the respondent chose to effect the dismissal of a loyal employee with no attempt by the respondent to follow any reasonable procedure, which ought to have included individual discussion with the claimant and consideration of alternatives to dismissal.

41. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (NI) 1990.

Chairman:

Date and place of hearing: 25 April 2012, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McGrath v Gerard Presley t/a GMK Contrac... [2012] NIIT 02980_11IT (25 June 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/2980_11IT.html Cite as: [2012] NIIT 2980_11IT, [2012] NIIT 02980_11IT

Industrial Tribunals Northern Ireland Decisions

Disposal of the claim in the absence of the respondent