Galbraith v Bombardier [2015] NIIT 00057

THE INDUSTRIAL TRIBUNALS

CASE REF: 57/15

CLAIMANT: Jordan Galbraith

RESPONDENT: Bombardier

DECISION

The unanimous decision of the industrial tribunal is:

(1) The claimant was not discriminated against on grounds of his disability in that the respondent did not fail to make reasonable adjustments to cope with his dyslexia.

(2) The claimant was not victimised on grounds of having raised a complaint in relation to his disability when he raised a grievance in October 2014.

Constitution of Tribunal:

Employment Judge: Employment Judge McCaffrey

Members: Mr J Devlin

Mr M Grant

Appearances:

The claimant was represented by his father Mr J Galbraith.

The respondent was represented by Ms K Moore of the Engineering Employers Federation.

ISSUES

1. This was a case where the claimant claimed that he had been unlawfully discriminated against by the respondent on grounds of his disability. It was conceded by the respondent that the claimant was a disabled person within the meaning of the Disability Discrimination Act 1995 (as amended) (“the 1995 Act”) and we have therefore not considered the issue of whether or not the claimant is a disabled person.

2. The claims before the tribunal raise the following issues:-

(1) Did the respondent discriminate against the claimant in failing to make reasonable adjustments for him contrary to Section 4A of the 1995 Act

(a) ... in April 2014 when the claimant claimed he had raised his disability at a meeting with Colin Spence and Gary Bowden?

(b) in October 2014 when the claimant provided details of his dyslexia to the respondent?

(c) was the claimant victimised by virtue of having raised a grievance regarding his treatment by the respondent once he disclosed his dyslexia in October 2014?

(2) Was the respondent’s treatment of the claimant a continuing act of alleged discrimination from April 2014 onwards?

(3) Was the claimant’s claim of discrimination in relation to events in April, and June 2014 lodged within the appropriate three month time limit?

(4) If the claim was not lodged within the appropriate time limit, is it just and equitable in all the circumstances for the tribunal to extend time?

FACTS

3. The tribunal heard evidence and received witness statements from the claimant and heard oral evidence from Mr Jimmy Reid, a trade union official on his behalf. For the respondent we received witness statements and heard evidence from Gary Bowden (Training Instructor), Colin Spence (Human Resources Business Partner), Gillian Brown (Human Resources Business Partner), Paul Jordan (Senior Finance Analyst), Wendy Bailie (Human Resources Business Partner) and Michael Bingham (Human Resources Business Partner). In addition a considerable number of documents were opened to us in the course of the hearing. On the basis of the evidence received we make the following findings of relevant facts.

4. The claimant was employed under a three-year contract of apprenticeship by the respondent. In the second and third years of his apprenticeship he attended training at the Belfast Metropolitan College (“the Tech”) on a day release basis and in the third year of his apprenticeship he attended the Tech one day per week and worked at the respondent’s premises for the rest of the time. During the third year of his apprenticeship from September 2013-2014, the claimant had various assignments to complete to achieve a Level 3 in Aeronautical Engineering and a BTEC Level 3 Diploma in Aeronautical Engineering through the Tech. It was not disputed that these academic qualifications were necessary for the claimant to qualify as a fitter and he could not complete his apprenticeship without them. The apprenticeship was therefore a tri-partite arrangement, where “on the job” training was provided by the respondent while the study element of the apprenticeship was conducted and overseen by the Tech.

5. The claimant had been diagnosed as suffering from dyslexia at the age of eight while at school. Various coping mechanisms had been put in place for him, including allowing him extra time to complete work, using coloured paper and various extra facilities. With the benefit of this help, the claimant achieved a good set of GCSE’s. He was successful in his aptitude test and accepted to train as an apprentice fitter with the respondent. When he moved to work for the respondent, however the claimant did not make the firm or the Tech aware that he suffered from dyslexia. When he was asked in cross examination why he had not done this, his reply was that as he was moving into an adult working environment he did not think it would affect him. However in the final year of his apprenticeship the claimant had a number of assignments to complete for his studies at the Tech. The case which he made before the tribunal was that he found it difficult to keep up with the work as the pace of the classes had increased. Furthermore he said that the facility for the tutors to “red pencil” assignments had been withdrawn. When asked to explain this, he indicated that tutors would check over assignments for apprentices and give them guidance on corrections which needed to be made before the assignments were actually submitted. The claimant made the case that this had been withdrawn in 2014. In fact it later emerged (when the claimant’s grievance was being dealt with) that tutors at the Tech would do an initial assessment of apprentices’ assignments but only if they were handed in on time. This “red pencilling” allowed the apprentice to correct work and resubmit it without any penalty for late submissions. However if assignments were submitted late, red pencilling was not offered.

6. The claimant had had a number of assignments which needed to be submitted at various times throughout the year. There were two particular assignments which were handed in extremely late. One due on 5 November 2013 was actually handed in on 3 June 2014; another due on 12 November 2013 was handed in on 6 March 2014. A number of the claimant’s other assignments were not handed in on the due date, but were eventually handed in on a “referral date”. Indeed on the basis of the information before us, less than 50% of the claimant’s assignments were handed in at the correct time. The claimant however had not told Bill McEwan (his tutor at the Tech) of his dyslexia or asked for any allowance to be made because of it.

7. On 14 April 2014 the claimant was invited to a meeting with Colin Spence and Gary Bowden his Training Instructor to discuss the fact that his assignments were behind. Mr Bowden and Mr Spence confirmed they had held similar meetings with a number of apprentices. Mr Spence described this as a “pep talk” to try and make sure that apprentices caught up with any work which was overdue and that in particular those in their third year had completed their work by the due date.

8. The claimant was accompanied at that meeting by Mr Jimmy Reid, a union official. Mr Reid’s evidence was that he had a discussion with the claimant before going into the meeting and asked him to tell him if there was anything that needed to be raised at it so that in his words, there were no surprises at the meeting. At this point the claimant made Mr Reid aware of his dyslexia. Mr Reid told him clearly that the claimant would have to raise this and that it was for him to raise it rather than Mr Reid. The claimant’s evidence was that when Mr Spence asked him at the meeting why he was behind with his assignments, the claimant indicated that he suffered from dyslexia and he needed some extra time to complete his work. The claimant was upset at the response from Mr Spence, who told him that he would need to take this up with the Tech. The claimant expressed his upset about this matter in his evidence and said that he felt that Mr Spence had “brushed it off”. It should be noted that Mr Spence did not recollect if the claimant had raised the issue of his dyslexia at this meeting, and Mr Bowden was clear that he had not. Both of them also said that if the issue had been raised, they would immediately have referred the issue to Mr Rory Galway who was the Training Manager and Equality Manager with the respondent. Mr Reid however was clear that the claimant had explained he had dyslexia. Mr Reid also said he found Mr Spence’s comment inappropriate and said that he would have given a different answer. He also said that at the meeting, he had said that he found Mr Spence’s response strange. He added in his evidence to the tribunal that he thought the comment was not untoward and it was not said in any aggressive or dismissive way. We are satisfied that, as a matter of fact, the claimant told Mr Spence at this meeting he suffered from dyslexia and Mr Spence told him he needed to take the matter up with the Tech. We accept Mr Reid’s evidence that this was not said in any aggressive or dismissive way. We also accept that, given the meeting was held to discuss the claimant’s overdue assignments, that it was reasonable for Mr Spence to tell the claimant he needed to take the matter up with the Tech.

9. After the meeting Mr Reid emphasised to the claimant that he would need to obtain some evidence of his dyslexia and produce that to the respondent. The claimant agreed that he had not done this and he also agreed that he had not immediately gone and spoken to Bill McEwan at the Tech in relation to his dyslexia or the outstanding assignments. Mr Spence’s evidence, which was not contradicted, was that he told the claimant that he should go to the Tech to sort out what needed to be done in relation to his assignments and to come back to them if he needed any help or support.

10. The claimant eventually did speak to Bill McEwan on 3 June 2014 which was the last day of term. At that stage he told Mr McEwan that he had dyslexia. Mr McEwan told the claimant he should have raised this before, that he would need to complete a form to do with “extenuating circumstances” and he needed to get this from the staff at the Tech. In fact the necessary form was available on-line but the claimant could not find it. He did not go back to Mr McEwan or speak to anyone else about the form and it was not therefore submitted.

11. The upshot of this was that because of late submission of a number of assignments and also errors in his work, the claimant was deemed not to have passed three out of five modules in his course and failed the year. When the claimant’s grievance appeal was being dealt with by Wendy Bailie, she specifically asked whether, if the work had been handed in on time, he would have passed. Mr McEwan’s reply by email 27 January 2015 was that if the late dates were ignored, the claimant would have passed all but two assignments. This however meant that he would still have failed year 3, as students were only allowed to fail in one subject without being required to repeat the year by the Tech.

12. On 11 June 2014 Mr Bowden attended a meeting with his manager Rory Galway, Mark O’Reilly Skills Instructor and Bill McEwan from the Tech when they discussed the apprentices and their year end results. At that stage the respondent’s staff were advised by Mr McEwan that the claimant had failed to complete his Level 3 Diploma in Aeronautical Engineering. Mr McEwan advised them that the claimant had told him he had dyslexia at the very end of the academic year and after the deadlines had passed for all work to be submitted. However they were told at this meeting by Mr McEwan that the reason for the claimant’s failure was because he had not submitted his assignments on time.

13. There was then a further end of year review meeting on 19 August 2014 which the claimant attended with Mr Bowden and Gillian Brown from the Human Resources Department. The meeting was also attended by John McNeilly (Operations Team Manager), Noel Gibson and Jimmy Reid trade union representatives. Given that the claimant had failed three out of five modules, the Tech had confirmed that he would be required to repeat the year of study. From the respondent’s point of view this meant that the claimant could not complete his apprenticeship and he was advised that this was a serious situation and could result in termination of his employment. Repeating the year was also raised as a possibility. At this meeting Ms Brown asked the claimant if he thought he could pass if he was allowed to repeat and his reply was that he would have to. She asked if he had told anyone that he was struggling and he said, “No”. At no point during this meeting did the claimant mention that he had dyslexia, nor was it raised by his union representatives. The claimant agreed in cross examination that he had not raised the question of his dyslexia at this meeting. He also conceded on cross examination, that the Tech was responsible for teaching and examining the Level 3 assignments and that it was their policies in relation to his academic work which were important.

14. Following the end of year review the claimant was invited to the disciplinary hearing on 9 October 2014. Noel Gibson was in attendance to represent him as were Gary Bowden and John McNeilly along with Ms Brown. It was the claimant’s evidence that he had felt very stressed by the prospect of going to a disciplinary hearing and that he had in fact gone to his GP and reported in sick the night before the hearing. Ms Brown indicated (and we accept) that she, Mr Bowden and Mr McNeilly were not made aware of this prior to the hearing taking place. It was only at the outset of the hearing that Ms Brown was given for the first time a copy of the letter from the claimant’s GP. The claimant had also prepared a document (with assistance from his mother) which he handed in at the start of the hearing setting out that he had dyslexia and seeking “reasonable adjustments” in relation to his written work. The documents were read by Ms Brown and the others present. She was concerned that the claimant had not raised this sooner and asked him why he was only bringing up his dyslexia now. The claimant’s response was that he did not like talking about it. Ms Brown indicated that he needed to declare things like this. The claimant indicated (mistakenly) that he had already raised the matter at the August meeting, but all of those present who had been at the August meeting were clear that he had not. Ms Brown stopped the hearing because she believed that she needed to take advice from the Occupational Health Department and the Company’s Equal Opportunities Manger. The claimant said he felt that he had been put down by Ms Brown and that she had accused him of telling lies. Ms Brown’s evidence was that she had not accused him of telling lies but that she did dispute the claimant’s claim that he had told her previously about his dyslexia. She also said that she did not criticise the claimant but was concerned that he had not chosen to inform them of his disability up until this point. She noted in her witness statement,

“Jordan could have told us about his dyslexia earlier and about the modifications he needed, but he chose not to do so until matters had progressed to the stage when the termination of his employment was a possibility.”

15. Following this meeting the claimant lodged a grievance in relation to the way that he had been treated at the meeting on 9 October and alleged that the respondent had failed to make reasonable adjustments for him. In particular he alleged that he had been held back from his studies in that he had not been assisted at Tech. He said that the College representative was “unreceptive” to his declaration of dyslexia, that he was dismissive of the claimant’s condition and had given the distinct impression that he felt it was just an excuse. He also said that previous support demonstrated while at Tech was unfortunately withdrawn. As regards the disciplinary hearing on 9 October 2014, the claimant alleged that Ms Brown had adopted an aggressive attitude towards him, creating a hostile and intimidating environment. The claimant said he felt vulnerable because he was on sick leave at this time.

16. As and from 9 October 2014 the claimant was on sick leave suffering from anxiety and was on medication for some time. He lodged a formal grievance on 28 October 2014. This matter was assigned to another HR partner Mr Paul Cunningham (who subsequently left the business) and Paul Jordan. They held a grievance meeting with the claimant on 1 December 2014 with the claimant and Jim Reid. The outcome of the grievance was conveyed to the claimant on 18 December 2014, following meetings which Messrs Cunningham and Jordan had had with various individuals involved in the process including Ms Brown, Mr McEwan from the Tech, Mr Reid and the others present at the various meetings. The claimant submitted a statement to that meeting. The claimant’s grievance was not upheld. Specifically, Mr Cunningham and Mr Jordan did not accept that the claimant was a disabled person because the only specific medical information he had provided was the diagnosis of dyslexia from Dr John Eakin in September 2002 when the claimant was only eight years old. No more recent medical information had been provided. It was also noted that the claimant had not advised the respondent company of his condition when he first joined the company. It was not accepted that the claimant had told Colin Spence and Gary Bowden of his condition in April 2014 as both of them denied this had occurred. It was noted that the first time the claimant had raised the matter of his disability with the Tech was on the last day of term in his third year when he told Bill McEwan. It was found that the claimant had criticised Gillian Brown’s approach at the meeting on October 2014, but the panel concluded that the questions asked by Ms Brown were appropriate in the context of the situation.

17. In relation to the response given by McEwan to the claimant in June 2014, the panel noted that Mr McEwan’s comment was that as long as the students submitted an assignment by the due date then the tutor would review their work and indicate where improvements could be made (red pencilling). If an assignment was submitted late however it was classed as being on referral and no additional assistance would be provided. This was college policy and would apply equally to all students. Mr McEwan had also advised the claimant on 3 June of the College policy that claimants could not claim disability retrospectively and if he wanted the matter to be looked at, he would need to submit an extenuating circumstances form. The form however had not been submitted. The conclusion of the panel on this point therefore was that Mr McEwan had acted in accordance with the Tech’s policy and that he did not act in a dismissive or demeaning manner towards the claimant. In light of all of this the claimant’s grievance was not upheld. The claimant lodged an appeal in relation to his grievance on 6 January 2015. On 7 January 2015, he lodged his claim in the Industrial Tribunals, alleging disability discrimination, specifically the respondent’s failure to make reasonable adjustments and victimisation against him.

18. The claimant’s grievance appeal was heard on 26 January 2015 by Wendy Bailie another HR Business Partner of the respondent. She met with the claimant and considered the contents of his appeal letter. She also spoke to both Colin Spence and Jim Reid in relation to the meeting of 14 April 2014. She did not speak to Mr Bowden. On the basis that Colin Spence could not recall whether the claimant had said anything about dyslexia but Mr Reid had said clearly that it was mentioned, it was her finding that reference had been made to dyslexia at the meeting in April 2014. She also said at tribunal that she had had many dealings with Mr Reid over the years and had always found him to be a direct and reliable trade union representative.

19. Ms Bailie also noted that the claimant subsequently submitted emails from Mr McEwan Course Tutor in March 2015 indicating that the claimant had failed due to errors in his assignments rather than late submission. Ms Bailie however referred to her own email correspondence with Mr McEwan when he noted that, due to late submission, the claimant had failed in a number of assignments. She also was advised by Mr McEwan that, leaving the date of submission aside, the claimant would have still have failed two assignments which would have meant he would have failed the third year of his apprenticeship. Ms Bailie considered it was appropriate for her to rely on the information that she had available to her at the time of the appeal. Mrs Bailie wrote to the claimant, turning down his appeal on 26 January 2015.

20. Once the grievance process had been completed, the disciplinary process involving the claimant was then reconvened. Mr Michael Bingham met with the claimant on 27 February 2015 to explain that he would now be taking responsibility for this. He indicated to the claimant that he intended to seek a specialist medical opinion and that he was keen to resolve the matter as soon as possible. He encouraged the claimant to return to work to help restore a loss of confidence which the claimant had reported to him. The advice was given to Mr Bingham was to seek a report on the claimant’s dyslexia from Dr John Eakin but the earliest appointment was on 11 May. However Dr Jenkinson the respondent’s occupational health doctor found the claimant unfit for work at that time and the claimant remained off work until 1 June 2015. In the meantime, Mr Bingham had had a further meeting on 22 April 2015 with the claimant and Sheenagh McVeigh the Company’s Training Advisor and the claimant attended with his union representative Noel Gibson. Prior to that meeting on 25 March 2015, the claimant was sent a list of questions by Mr Bingham, so that he had time to prepare. At that meeting the claimant was told that no decision would be taken until they have had a chance to consider Dr Eakin’s report. Once that report dated 19 May 2015 was received, it made recommendations in relation to recommended supports, adjustments and access arrangements regarding study support from the Tech and reasonable adjustments at the workplace.

21. Prior to meeting the claimant again on 27 May 2015, Mr Bingham’s evidence was that he had made enquiries with the Tech to see whether it would be possible for the claimant to resubmit the failed assignments without being required to repeat the year. He indicated in his evidence, however, that the College advised that it was their policy that if a student failed two or more units, they were required to repeat the full year and attend classes. As a result Mr Bingham advised the claimant that the respondent would make the necessary arrangements for him to repeat his final year at Tech commencing September 2015. A number of arrangements were put in place including advance provision of all lecture notes, allowing more time for reading and writing during class; special exam arrangements; loan of equipment including a lap top with enabling, specialist software training; and sympathetic consideration over spelling and grammar (within the guidelines of the awarding body). The claimant said in his evidence that he was now being given 25% extra time to complete his assignments. Mr Bingham also confirmed that a member of Ms McVeigh’s staff had been nominated to liaise with the claimant and his manager regarding any practical problems in the workplace.

22. The claimant claimed that he had lost out, in that he had been unable to finish his apprenticeship when he was due to complete it in September 2014 due to lack of support from the respondent and the Tech. In the alternative he contended that he should have been able to complete his apprenticeship in September 2015, instead of which he had effectively lost a year allegedly due to the behaviour of the respondent in failing to make reasonable adjustments for him. Accordingly, he had lost out financially, as he was still paid at apprentice’s pay rate, rather than fitter’s rates. He also alleged he had been victimised because he had raised a grievance regarding his treatment by the respondent and the Tech in October 2014.

23. The claimant alleged that some of his fellow apprentices who had also failed subjects had been allowed to go back to Tech and redo assignments. He named in particular Christopher Mallon and Jason Boobyer. Ms Brown’s evidence (which we accept) was that Christopher Mallon had failed only one subject and was allowed to repeat this module from September 2014-June 2015. Jason Boobyer had in fact successfully completed the course. Ms Brown also noted that of five other apprentices who had been called to disciplinary hearings as a result of their end of year reviews, one resigned, one was dismissed for poor performance and non-attendance, and the other three were allowed to repeat the year. She said that in all likelihood repeating the year would have been the outcome for the claimant as well at that time (October 2014) but due to the claimant’s sick leave and his grievance, the disciplinary process had to be put on hold until the grievance was resolved.

THE RELEVANT LAW

24. There were a number of issues for us to consider in relation to this case. The first related to the period within which proceedings must be brought. Given that the claim was lodged on 7 January 2015 and the claim form clearly stated that the claimant was lodging his claim in order to be within the three month time-limit, it may be surmised that the claimant was primarily concerned with the events of 9 October 2014 and following that date, up to the date his claim was lodged. The claimant had not specifically referred in his claim form to the events of April-June 2014 (see paras 6-9 above) or indeed any other events which predated the October disciplinary meeting. At the hearing however the claimant maintained that he wished to include these events as part of his claim and there was therefore an issue for us to consider as to whether the claim had been lodged in time. The relevant law in relation to time-limits for bringing proceedings of disability discrimination is set out in Schedule 3 to the Disability Discrimination Act 1995 (as amended) (“the 1995 Act”) which provides as follows:-

“3(1) An industrial tribunal shall not consider a complaint under Section 8 unless it is presented before the end of the period of three months beginning when the act complained of was done.

(2) A tribunal may consider any such complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so.

(3) For the purposes of sub-paragraph (1)-

(a) where an unlawful act of discrimination is attributable to a term in a contract, that act is to be treated as extending throughout the duration of the contract;

(b) Any act extending over a period shall be treated as done at the end of that period; and

(c) A deliberate omission shall be treated as done when the person in question decided upon it.

(4) In the absence of evidence establishing the contrary, a person shall be taken for the purposes of this paragraph to decide upon an omission -

(a) Where he does an act in consistent with doing the omitted act; or

(b) If he has done no such inconsistent act, when the evidence expires within which he might reasonably be expect to do the omitted act if it was done.

25. In relation to the duty to make reasonable adjustments, this is set out in Section 4A of the 1995 Act which provides as follows:-

“4A(1) Where -

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

(2) In sub-section (1),

“the disabled person concerned” means

(a) In the case of a provision, criterion or practice for determining to whom employment should be offered, any disabled person who is, or has notified the employer that he may be, an applicant for that employment;

(b) In any other case, a disabled person who is -

(i) An applicant for the employment concerned, or

(ii) An employee of the employer concerned.

(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, or could not reasonably be expected to know -

(a) In the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or

(b) In any case, that the person has a disability and is likely to be affected in the way mentioned in sub-section (1).

26. The claimant also claimed that he had been victimised as a result of having raised the issue of his dyslexia and having raised a grievance in relation to the way he was treated at the disciplinary meeting on 9 October. The relevant legislation in relation to victimisation is to be found at Section 55 of the 1995 Act which provides as follows:-

“55(1) For the purpose of Part II or Part III a person (“A”) discriminates against another person (“B”) if

(a) he treats (B) less favourably than he treats or would treat other persons whose circumstances are the same as B’s; and

(b) he does so for a reason mentioned in sub-section (2).

(2) The reasons are that -

(a) B has -

(i) Brought proceedings against A or any other person under this Act; or

(ii) Given evidence or information in connection with such a proceedings brought by any person; or

(iii) Otherwise done anything under Act in relation to (A) or any other person; or

(iv) Alleged that (A) or any other person has (whether or not the allegation states) contravened this Act; or

(b) A believes or suspects that (b) has done or intends to any of those things.

(3) Where B is a disabled person, or had a person who has had a disability, the disability in question shall be disregarded comparing his circumstances with those of any other person for the purposes of sub-section (1)(a) ...”

27. Neither party introduced any case law to us in relation to the issues before us. Having considered this matter it is our view that this case very much turns on its facts and so we do not propose to set out a great deal of case law in relation to the issues. We do however consider it would be helpful to summarise briefly the case law in relation to the burden of proof in discrimination cases, and also as regards comparators in disability discrimination claims.

28. In considering whether or not a person has been discriminated against on grounds of their disability we must consider the issue of less favourable treatment and whether or not the less favourable treatment (if established) was on grounds of disability. The claimant must show that he has been less favourably treated than a comparator (whether actual or hypothetical) who has similar or the same characteristics apart from the disability from which he suffers.

29. The ruling of the House of Lords in London Borough of Lewisham v Malcolm [2008] UKHL 43 is still the leading case in Northern Ireland as regards identifying comparators in disability cases, although overtaken by the Equality Act 2010 in Great Britain. Lord Neuberger, in considering the issue of comparators, considered the wording of S.3A(1) (a) of the 1995 Act (see paragraph 25 above) and whether the words “that reason” in the phrase “others to whom that reason does not or would not apply” refers back to the reason which relates to the disabled person’s disability (a narrow construction) or whether “that reason” simply refers back to “the reason” (a wide construction). So the comparator involves stripping out the disability, but not the reason for the treatment, so there is only discrimination if a non-disabled person to whom the same reason would apply would be accorded more favourable treatment (see Harvey Division L paragraph 262). In Malcolm, the claimant, who was schizophrenic, was evicted from his flat (owned by the Borough of Lewisham) because he had sublet the flat contrary to the tenancy agreement. He argued his breach of tenancy had been caused by his schizophrenia, which had impacted on his judgment. The House of Lords held the question to consider was this: if a non-disabled secure tenant had sublet, would he have been evicted?

30. It is clear from the case law including Chief Constable of West Yorkshire v Vento [2001] IRLR 124 that comparing the treatment of those in non-identical but not wholly dissimilar cases is a permissible means of constructing a hypothetical comparator and judging how he or she would have been treated. It is for the claimant to show that the hypothetical comparator would have been treated more favourably. In doing so, the claimant may invite the tribunal to draw inferences from all relevant circumstances, but it is still a matter for the claimant to ensure that the tribunal is given the primary evidence from which the necessary inferences can be drawn. (See Harvey, Division L Paragraph 256).

31. It is also clear from the established case law that it is for the claimant to prove his case. The burden of proof in discrimination cases lies on the claimant to prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful under the 1995 Act. The guidance set out in Igen Ltd v Wong and Others [2005] EWCA Civ 142 has specifically been approved and enlarged on by the Court of Appeal in Madarassy v Nomura International plc [2007] EWCA Civ 33; [2007] IRLR 246. In that case Lord Justice Mummery confirmed that the words “could conclude” in the Burden of Proof Regulations must mean “a reasonable tribunal could properly conclude” from all the evidence before it that discrimination has occurred. Madarassy stressed that a difference in status and a difference of treatment was not sufficient to reverse the burden of proof automatically. In Laing v Manchester City Council [2006] IRLR 748, a claim of race discrimination, Elias P sounded a note of caution against taking from Igen a mechanistic approach to proof of discrimination. He stated as follows:-

“...What must be borne in mind by a tribunal faced with a race claim is that ultimately the issue is whether or not the employer has committed an act of race discrimination. The shifting in the burden of proof simply recognises that there are problems of proof facing an employee which it would be very difficult to overcome if the employee had at all stages to satisfy the tribunal on the balance of probabilities that certain treatment had been by reason of race (Paragraph 71 of the judgment) ...

“No doubt in most cases it will be sensible for a tribunal formally to analyse a case by reference to the two stages. But it is not obligatory on them formally to go through each step in each case. As I said in Network Rail Infrastructure v Griffiths-Henry [2006] IRLR 865 ... it may be legitimate to infer that a black person may have been discriminated on grounds of race if he is equally qualified for a post which is given to a white person and there are only two candidates, but not necessarily legitimate to do so if there are many candidates and a substantial number of other white persons are also rejected ...”

32. It is sometimes been suggested that it would be helpful to approach a situation where direct discrimination is said to exist by adopting a two stage test: first to ask whether there was less favourable treatment and secondly, to ask whether it was on grounds of disability (as in this case). In other words, the tribunal should ask the “reason why” question after less favourable treatment has been proven to exist. If an actual comparator can be identified this will often be a sensible approach but it may not always be correct. It has also been pointed out by Lord Nicholls in Shamoon v The Chief Constable of the RUC [2003] UKHL 11 that sometimes it will not be possible to decide whether there is less favourable treatment without deciding the “reason why”. As Lord Nicholls observed in Shamoon (see paragraph 8 of the judgment) the question of less favourable treatment than an appropriate comparator and the question of whether that treatment was on the relevant prohibited ground may be so intertwined that one cannot be resolved without at the same time deciding the other. As Lord Justice Mummery observed in Aylott v Stockton and Tees Borough Council [2010] EWCA Civ 910, there is essentially a single question: did the claimant on the proscribed ground receive less favourable treatment than others? He went on to say as follows:-

“Once it is found that the reason for the treatment was a proscribed one, there should be no difficulty in deciding whether the treatment on that ground was less favourable than the treatment that was or would have been afforded to others. If the evidence establishes that the reason for the treatment is the claimant’s disability, then it will usually follow that the hypothetical comparator would not have been treated in the same way and there will be discrimination.” (See paragraph 41 of the judgment).

REASONS AND DECISION

33. (1) Time Limit

There are two distinct issues which we wish to cover in relation to the issue of time-limit. We deal below with the question of the time-limit in which proceedings are brought and whether the alleged discrimination is a continuing act. We believe however it is relevant also to set out that at the hearing, Mr Galbraith on behalf of the claimant attempted to introduce evidence in relation to events which had occurred after 7 January 2015, the date when the claimant’s claim form was lodged. When the Employment Judge pointed out to him that the tribunal could not consider events which had occurred after the date when the proceedings were lodged, his response was that this was the reason the claimant was here: the main issue of his complaint was actually the way the respondent had allegedly behaved after the claimant had raised his grievance on 28 October 2014, and the way they had dealt with the claimant since that date. We made it clear to him at the time that we could not deal with events which had occurred after 7 January 2015, as the subject of the claimant’s claim was events up to that date but not beyond it. We have included the evidence given by Mr Bingham and the claimant about the steps taken in early and mid-2015 to make adjustments for the claimant both at the Tech and at the respondent’s premises to complete the picture of how the claimant was treated.

34. In relation to the time-limit for bringing claims, we have to consider whether the claimant should have an extension of time for lodging his claim in relation to the incidents in April and June 2014 and in particular whether it would have been just and equitable to extend the time. One of the factors we can take into account as far as this is concerned is the question of whether or not the alleged discrimination was a “continuing act” under para 3(b) to Schedule 3 of the 1995 Act and whether it should be treated as extending over a period of time.

35. The issue which the claimant really complains of is the alleged failure of the respondent and/or Belfast Metropolitan College (“the Tech”, which is not a party to this claim) to provide him with additional support in relation to his written work during his period of apprenticeship so that he could successfully complete it within the three year period originally envisaged. It was this which, the claimant alleges, meant that he failed his third year of study and gave rise to the end-of-year review meeting in August and the disciplinary meeting in October 2014. It is his case that he raised his dyslexia at a meeting in April 2014 with the respondent and in a discussion with Bill McEwan of the Tech on 3 June 2014. In light of all of this, and even though these incidents were not specifically flagged up in the claimant’s claim form, we take the view on balance that this is an alleged continuing act and should be treated as done at the end of the period of time namely 9 October 2014. The meeting on 9 October and events following it only make sense if seen in the context of the claimant’s future to complete his assignments and the meetings in April, June and August set out at paras7-13 above. We are satisfied that this matter was addressed by the claimant in his witness statement and that the respondent has had the opportunity to respond and address these issues in their witness statements so there is no prejudice to the respondent. We also take account of the guidance of the Court of Appeal in England and Wales in Anya v University of Oxford and Another [2001] EWCA Civ 405 where the Court of Appeal noted the importance of an Industrial Tribunal taking into account relevant background information in the context of discrimination claims. Accordingly, we take the view that the claimant’s claim was lodged within the three month time-limit. That said, we should add that the evidence given by the claimant on the time limit issue was not particularly convincing. He was accompanied at the meeting on 14 April by a trade union representative, Mr Reid, but he did not take the opportunity to ask Mr Reid whether there was any scope to raise the matter by way of a claim before the industrial tribunal. He did not take any steps to seek any legal advice in relation to the matter and indeed frankly said that he did not even know what a tribunal was. The first time he appears to have raised the issue with his parents was when he was called to a disciplinary meeting in October 2014 when his mother helped him to prepare a written submission for the disciplinary hearing. Given that the claimant says that he raised the issue of his dyslexia in April with the respondent and again in June with Mr McEwan, in the knowledge that passing his third year’s assignments was essential to completing his apprenticeship, it seems to us strange to say the least that the claimant did not pursue the matter with more urgency at an earlier stage.

(2) Failure to make reasonable adjustments

36. It seems to us that the crux issue in relation to the duty to make reasonable adjustments in this case is what the respondent knew and when they knew it. For obvious reasons, the duty to make reasonable adjustments cannot arise unless and until the employer either knew or ought reasonably to have known of the claimant’s disability. (See Section 4A(3) of the 1995 Act, para 25 above).

37. There was clearly a dispute about when the employer knew that the claimant suffered from dyslexia. He had not raised it when he started his apprenticeship in 2011, or at any other time during the first two and a half years of his apprenticeship. He had completed the first two years of his apprenticeship successfully, so there was no suggestion that the respondent ought to have known of his dyslexia. The first time the claimant says it was raised was at the meeting on 14 April 2014. That was disputed by Mr Boden saying clearly that the matter had not been raised and by Mr Spence saying he had no recollection of it. We note that when Ms Bailie carried out the appeal in relation to the claimant’s grievance she had not spoken to Mr Boden, but had spoken to Mr Reid who also gave evidence before the tribunal. She clearly said that she had dealt with Mr Reid over many years and had always found him to be a straight forward and honest union representative. We equally find his evidence before the tribunal to be clear and unequivocal. We accept that on Mr Reid’s advice the claimant raised the issue of his dyslexia at the meeting of 14 April. Mr Spence told the claimant directly that he would have to raise this with the Tech, and Mr Reid did not find anything dismissive or aggressive in the way that Mr Spence said this, although he observed that he would have dealt with it differently. Mr Reid also told the claimant that he would need to produce some proof of his dyslexia to the respondent. He obviously appreciated that the respondent would need more proof than just the claimant saying, “I am dyslexic” to decide on any further action. The claimant failed to do this and he also failed to go to Mr McEwan at the Tech directly and tell him of his difficulties.

38. It was made clear to us in the course of the evidence that the Tech has a policy that students suffering from dyslexia or any other disability must make the college authorities aware of this at the outset of their course. It seems obvious to us that this would be for two main reasons: first, so that students can be given proper support and secondly, to avoid any misunderstanding or difficulty later in their course. When the claimant came to Mr McEwan on the last day of term (namely
3 June 2014), handing in assignments one of which was up to eight months late and another four months late, he only then raised the issue of his dyslexia. Mr McEwan told him clearly that he should have raised this previously as it could not be taken into account retrospectively, and also told him to submit an extenuating circumstances form, which the claimant did not do. We can appreciate where a student has failed to raise such an important issue until the end of his course of study, and where he is in a position that his work is very substantially overdue, raising his disability belatedly could be seen as an excuse for poor performance. The way to avoid this was to make sure that the Tech knew of the claimant’s difficulties from the outset.

39. The first time when the respondent was given any substantial evidence of the claimant’s dyslexia was in October 2014 when the claimant produced a letter to the disciplinary hearing and included a copy of Dr Eakin’s assessment of him when he was aged eight. We are of the view that the duty to make reasonable adjustments only arose at this point, because it was only then that the respondent knew, or ought reasonably to have known, of the claimant’s dyslexia in that they then had firm evidence of the claimant’s condition. Prior to that, they had only the claimant’s assertion in April that he suffered from dyslexia, without any actual proof. From
9 October the employer put the disciplinary proceedings on hold to investigate further. It is not clear exactly what course of action would have followed next, because the claimant then lodged a grievance in relation to the way his disciplinary hearing had been dealt with, claiming that the employer had failed to make reasonable adjustments for him and that he had therefore lost out. We have no reason to doubt Ms Brown’s comment that in all likelihood the claimant would have been allowed to repeat the year.

40. As far as the obligation to make reasonable adjustments is concerned, it is clear that it was a criterion applied by the respondent that apprentices must complete their course of study at the Tech successfully in order to complete their apprenticeship. Indeed Mr Bowden said in his evidence that it was a government requirement that the claimant should complete his Level 3 Aeronautical Engineering and BTEC Level 3 Diploma in Aeronautical Engineering before he could work as a fitter. This was not in any way disputed. The management of that course of study and the policies applied by the Tech are not however matters for the respondent in this case and Belfast Metropolitan College is not a party to this claim. It was a clear policy of the Tech that students who failed in more than one subject would be required to retake the year. The claimant pointed to some of his contemporaries who he said had been treated more favourably than he was. However these comparators did not stand up to scrutiny. The respondent’s evidence as regards the comparators the claimant referred to was that two had only failed in one subject and were allowed to repeat that subject rather than having to repeat the year. Another one left and another in fact had completed all the subjects successfully. It is also clear that, had the claimant made Tech aware either when he started his studies or even at the beginning of his third year when (on his own evidence) the pace at classes speeded up and he found that he was lagging behind, he needed some extra support in terms of time at classes and for submitting his written work, that this probably could have been accommodated. The claimant noted that having resumed his studies in September 2015, he was being given an extra 25% time to lodge his written work. This meant that rather than four weeks to complete an assignment he was being given five weeks. It is relevant to note however that some of the written work the claimant had failed to complete in 2013/2014 was months, rather than weeks behind. It is our finding that the claimant has failed to prove facts from which the tribunal could reasonably conclude that the respondent had failed to make reasonable adjustments for him, and so his disability discrimination claim regarding reasonable adjustments must fail.

(3) Victimisation

41. The claimant’s main complaint as regards victimisation seems to be that he was unable to complete his apprenticeship on time, because of the respondent’s failure to make reasonable adjustments for him. We do not accept this in relation to the claimant’s completion of his course in September 2014. While the claimant had raised the issue of his dyslexia in April 2014, he had actually produced no firm evidence of his condition to the respondent before October 2014, some four months after the end of the academic year. There was no suggestion before us that any of his work at the respondent’s premises was deficient, the only issue was that he had failed to complete his course at the Tech. The claimant had failed to produce the medical evidence as advised by Mr Reid either to the company or to Mr McEwan in June 2014. There had then been a further meeting in August 2014 when he had again failed to raise the issue of his dyslexia or produce any evidence of it to the respondent. It was only when the claimant’s job appeared to be on the line that he actually made the effort to produce any evidence to the respondent. It is clear to us had the claimant raised this issue much earlier the outcome may well have been different, but we cannot see that there is any fault on the part of the respondent as far as this is concerned.

42. The next element of the claimant’s complaint is that he says that he should have been able to resume his studies at the Tech in September/October 2014, which would have allowed him to complete his studies in the summer of 2015 and he then would have qualified as a fitter much sooner that he will now do. The disciplinary meeting was on 9 October 2014 and following that Ms Brown sought advice from Occupational Health. In the meantime the claimant lodged his grievance on 28 October and, if the disciplinary proceedings had not already been put on hold, they certainly would have been put on hold to deal with the grievance and its subsequent appeal. The claimant also went on sick leave at this point suffering from anxiety and he remained on sick leave until June 2015. It is considered good practice for an employer to put any other pending proceedings such as disciplinary proceedings on hold until a grievance can be properly investigated and dealt with. Looking at the timescale in this case, we cannot say that there was any undue delay on the part of the employer. The grievance was received on 28 October and there was then a meeting with the claimant and other investigations carried out at the beginning of December 2014. It is important also to note that the claimant was still on sick leave at this stage and the employer had to take account of that. Following the grievance meeting the outcome of the grievance was provided to the claimant on 18 December which again we do not consider an unreasonable timescale. The claimant lodged his appeal as he was entitled to do and this was dealt with in January 2015. We also note that the employer (in this case Ms Bailie) took some time to carry out further investigation, to interview others who were involved and came to a conclusion which was partly in support of the claimant’s assertions, although overall she did not uphold the claimant’s appeal.

43. Following the resolution of the appeal, the claimant was then invited to meet with Mr Bingham who was responsible for progressing the disciplinary hearing. Mr Bingham checked that the claimant was fit to meet with him and told the claimant at the first meeting at the end of February 2015 that he would be seeking specialist medical advice in relation to his dyslexia. Mr Bingham also accompanied by Ms McVeigh who was a training adviser and therefore who might be assumed to have the type of specialist knowledge which would be helpful in resolving matters of this kind. As soon as Dr Eakin’s further assessment on the claimant was carried out in early May 2015 and the report received shortly after 19 May 2015, the respondent did not lose any time in telling the claimant that there would be no further disciplinary action and that he could resume work, which he did on 1 June 2015. Mr Bingham had already checked with the Tech as to whether the claimant could resume classes at the Tech through the year and resubmit his assignments, but it was the Tech’s policy that he would have to repeat the year. We cannot see that any responsibility attaches to the respondent for the policies and procedures of another body.

44. We have also considered the evidence given by Mr Bingham in relation to the steps taken by the respondent in communicating with the Tech and arranging for adjustments to be put in place to support the claimant, none of which were in any way criticised by the claimant himself in his evidence.

CONCLUSION

45. It is our finding that the claimant has not established that the employer failed to make reasonable adjustments to accommodate the claimant. Indeed we believe that the employer acted properly and responsibly once they have sufficient information before them to allow them to make appropriate adjustments to support the claimant. It is also our finding that the claimant has not established a case of victimisation for reasons set out at paragraphs 41-43 above). Accordingly all of the claimant’s claims are dismissed.

46. The claimant in this case is a young man who has received remarkable support from his parents, both in terms of his mother’s efforts to have his dyslexia diagnosed at the age of eight and then to have support put in place for him through his school career. She also gave him help and support in preparing a written submission to produce to his employers prior to the disciplinary hearing. The claimant’s father has also given him huge support in assisting before the industrial tribunal. Both are to be commended for the help and support they have given their son. It is also clear to us that, with help and support, the claimant can sustain academic achievement. He has shown this not only by producing a good set of GCSE results but also in successfully completing the first two years of his apprenticeship.

47. We appreciate that the claimant said he was bullied at school through being referred to as a “special boy” and we can appreciate that this may have left him reluctant to discuss his dyslexia. However the claimant himself said that he thought things would be different when he started with the respondent because he was entering an adult working environment. The claimant is now aged 21 and at the date when the events complained of occurred, he was aged 20 and therefore of full age and competence to make his own decisions. While we can understand the claimant’s embarrassment about his dyslexia, he must by now be aware that this is a condition with which he will have to cope on an ongoing basis. Other people, in particular employers, cannot be expected to make allowances for the claimant’s condition if they do not know it exists or have a proper understanding of how it impacts on the claimant. It is clear to us that once the respondent and the Tech had sufficient information regarding the claimant’s condition, they promptly made arrangements to facilitate and support him. It is perhaps a mark of maturity for an individual to learn when they need to ask for help. The claimant has, rather belatedly, sought help and been offered it. It is now for him to make best use of the opportunities afforded to him, apply himself to his work and his studies and to go on to achieve success in his career.

Employment Judge:

Date and place of hearing: 5, 6 and 7 October 2015, 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 >> Galbraith v Bombardier [2015] NIIT 00057_15IT (09 November 2015) URL: http://www.bailii.org/nie/cases/NIIT/2015/00057_15IT.html Cite as: [2015] NIIT 57_15IT, [2015] NIIT 00057_15IT

Industrial Tribunals Northern Ireland Decisions