Peters v South Eastern Health & Social ... [2017] NIIT 01108

THE INDUSTRIAL TRIBUNALS

CASE REFS: 2630/15

1108/16

CLAIMANT: Jo-Anne Peters

RESPONDENT: South Eastern Health & Social Care Trust

DECISION

The unanimous decision of the tribunal is that it dismisses all claims.

Constitution of Tribunal:

Employment Judge: Employment Judge Travers

Members: Mrs E Gilmartin

Mr A Carlin

Appearances:

The claimant was not legally represented, she appeared in person assisted by her husband, Mr G Peters, who spoke on her behalf.

The respondent was represented by Mr Hamill, Barrister-at-Law, instructed by Ms McClean of the Directorate of Legal Services.

REASONS

Issues

1. The tribunal is considering claims issued under two case numbers. Common to the claims is the allegation that the claimant has been discriminated against on the grounds of disability.

2. At a pre-hearing review on 17 May 2016 a number of claims raised by the claimant were dismissed because they had not been brought within the relevant statutory time limit. These were: the omission to transfer the claimant's role/post to a different department; the omission to allow the claimant to work from home; the claimant's claim in respect of the alleged failure to carry out a risk assessment; the claim in respect of the alleged failure to set realistic targets.

3. The record of the pre-hearing review on 17 May 2016 records the following as the acts which the claimant wishes to pursue in support of her claim that she has suffered disability discrimination:-

(i) The decision to implement the Capability Procedure.

(ii) The demotion.

(iii) The process which led up to the demotion.

(iv) The alleged mishandling of the October 2015 grievance.

(v) During the period after the claimant's demotion, the alleged failure to take proper account of the Occupational Health Advisor's advice and recommendations.

Sources of evidence

4. The tribunal was provided with four bundles containing respectively: pleadings; witness statements; medical evidence; and the parties' disclosure generally. During the course of the hearing the parties referred the tribunal to the contents of these bundles as they saw fit.

5. The tribunal heard oral evidence from: the claimant; the claimant's husband, Mr Graeme Peters; Linda Thompson; Noeleen McCreanor; Martin O'Toole; Deborah McNeill; Dr Kelly, psychiatrist; Dr Daly, psychiatrist.

6. At the conclusion of the evidence, the tribunal was provided by Mr Peters with a copy of written submissions on behalf of the claimant.

Background

7. The claimant commenced employment with the respondent as an administrator in November 2008. On 2 September 2013 she began working as a Band 5 Corporate Bank Training Project Co-ordinator.

8. Following Step 2 Capability meetings in a process conducted by the respondent, the claimant was informed by letter dated 25 August 2015 that it had been 'clearly demonstrated' that she was, 'incapable of carrying out the duties and responsibilities of your post as Band 5 Training Project Co-ordinator'.

9. The letter notified the claimant that she was to be, 'downgraded from your Band 5 post with immediate effect and moved to a suitable Band 3 position within the Trust.'

10. The allegations of disability discrimination at the heart of this case arise from and are against the background of the process which led to the claimant being downgraded.

Disability

Definition of Disability

11. Section 1(1) of the DDA states that: '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 normal day-to-day activities.'

Schedule 1 of the DDA at paragraph 2(1) provides that: 'The effect of an impairment is a long-term effect if -

(a) it has lasted at least 12 months;

(b) the period for which it lasts is likely to be at least 12 months; or

Paragraph 4(1) of Schedule 1 provides that: 'An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following -

(a) mobility;

(b) manual dexterity;

(d) continence;

(e) ability to lift, carry or otherwise move everyday objects;

(f) speech, hearing or eyesight;

(g) memory or ability to concentrate, learn or understand; or

(h) perception of the risk of physical danger.'

12. Paragraph 6(1) of Schedule 1 of the DDA provides that:

'An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.'

13. The burden of proving disability within the terms of the DDA rests with the claimant to be established on the balance of probabilities.

14. The claimant complains of two disabilities:-

a. cluster headaches resulting from migraine;

b. adjustment disorder.

Cluster headaches / Migraines

15. In submissions the respondent's counsel accepted that the claimant has suffered migraines for many years but submitted that there is no medical or other evidence about the effect on the claimant's day-to-day life. The respondent submits that the claimant's written closing submissions contain a large number of statements and assertions made without evidential foundation concerning the day-to-day effect of the headaches on the claimant's life.

16. The claimant has disclosed GP records commencing on 7 January 2008.

17. Following a consultation with the claimant on 19/06/09, Dr Christy GP recorded, 'Cluster headache - since Nov 08 frequent probable cluster migraines lasting 3-4/7. No diurnal variation. O/e no focal neuro signs. Trial B blocker - also under a good deal of stress with bereavement and a new job'. Thereafter the claimant has been prescribed medication to prevent the occurrence of migraines.

18. In view of the relatively small number of references in the medical records to consultations where the claimant has specifically complained of migraines, the ongoing repeat prescriptions of migraine prevention medication appear largely to have been a success.

19. No medical evidence has been produced by the claimant in respect of the impact of migraines on her day to day life save for a letter from Dr Christy dated 3 October 2016. It is agreed between the parties that by that date the claimant was suffering an adjustment disorder with anxiety and depressive symptoms. Dr Christy states:

"It is my medical opinion that were Mrs Peters not taking her current medication it would be very unlikely that she would be able to perform her day to day activities in any reliable and repeated manner.

In the absence of her taking her medication for migraine headaches, depression and adjustment disorder it is likely that she would have even more frequent severe migraines that would render her incapable of performing her activities of daily living whilst the migraine was present . It is also highly likely that her mood would deteriorate which would have a consequent affect upon her motivation and drive and her concentration.

The inevitable consequence of this would be that she would have increasing difficulty functioning on a day to day basis."

20. The GP's report is not entirely satisfactory in that it does not comment separately on impact of each of the conditions referred to and the effect of medication in respect of the individual conditions. Nonetheless, the tribunal accepts on the balance of probabilities that the words highlighted by the tribunal in bold at paragraph 19 above do support the submission that in the absence of medication the claimant's migraines would have a substantial adverse effect on the claimant's normal day to activities.

21. In all the circumstances the tribunal finds that the claimant's migraine condition does fulfil the definition of disability under the DDA. On the medical evidence she has suffered from this disability since 2009.

22. It is important to note that in so finding the tribunal does not thereby accept what has been said by the claimant about the actual impact of her disability on the events which the tribunal has to consider in this case. The tribunal will address that issue later in this decision.

Adjustment disorder

23. It is agreed between the parties that the claimant currently suffers from an adjustment disorder and that it is a disability within the terms of the DDA.

24. The parties disagree as to the date of the onset of the disorder. In a letter dated 13 March 2017, Dr Kelly, psychiatrist, instructed by the claimant, suggests that the 'adjustment disorder could be deemed to have started from June 2015'.

25. In his report dated 15 December 2016, Dr Daly, psychiatrist, instructed by the respondent, expresses the view that it is, 'unlikely her adjustment disorder was present much before the end of 2015'.

26. On 02/10/15 the claimant's GP referred her for psychiatric assessment. The mental health assessment team saw her on 4 November 2015 and referred her on for outpatient review with a psychiatrist. Ultimately that referral resulted in a diagnosis of an adjustment order.

27. Dr Kelly reasons that the onset of the condition which psychiatric services diagnosed as an adjustment disorder is unlikely to have occurred on the date that she was seen by them.

28. Dr Kelly suggests that the deemed date of onset should be 18/06/15 which is a date when the claimant attended her GP complaining of work stress. In cross-examination he accepted however that a reference in GP's notes to 'work stress' can 'cover a multitude of sins' and he accepted that it is hard to interpret it. He accepted that there was a degree of speculation in his interpretation.

29. The tribunal accepts that the onset of the adjustment order was prior to the date she was seen by the psychiatric services. On the evidence, the date of the onset of the condition is impossible to define with precision. The earliest date on which the tribunal can make a firm finding on the balance of probabilities that the adjustment order existed was 2 October 2015, the date when the claimant was referred to psychiatric services by her GP.

Facts

30. The findings set out below have been established on the balance of probabilities.

31. The claimant commenced employment with the respondent in 2008. In her witness statement the claimant describes a difficult period in her employment beginning in 2009. On the claimant's account it included a 12 month period of sick leave. The claimant says that she, 'experienced stress/anxiety/cluster headaches/migraine'. She describes how she suffered stress, 'due to aggressive targets which were detrimental to my health and in particular my cluster headaches'.

32. At one point in the claimant's employment in a Band 5 role she was put through, what she says in her witness statement, was a 'probation extension process'. The claimant, 'contested the treatment [she] received at that time through internal grievance processes'.

33. The claimant also discloses in her witness statement that she underwent a period of suspension from work lasting from 7 February 2011 until May 2012.

34. The claimant was offered a Band 4 post on her return to work in May 2012. She subsequently asked to be considered for the Band 5 role as Corporate Bank Training Project Co-ordinator. She commenced employment in that role on 2 September 2013.

35. The claimant's line manager in her new post was Linda Thompson. It was a fresh start for the claimant. Ms Thompson knew nothing of the previous unhappy history which the claimant had experienced. When Ms Thompson and the claimant met for the first time, the claimant shared something of her employment history with Ms Thompson and chose not to disclose anything about the difficulties she had encountered in the past.

36. The purpose of the claimant's new role was:

(a) to develop, co-ordinate and review mandatory training for all bank staff;

(b) effective induction of new people joining the pool of bank staff;

37. A core activity and first priority of the claimant's role was to review the mandatory training records of each member of bank staff to ensure that the records were correct. This required the claimant to make contact with the members of bank staff. Where a staff member did not have the appropriate training it was the claimant's responsibility to book the staff member onto a suitable course.

38. As a Band 5 position the expectation was that the claimant would be able to work without intensive supervision/monitoring by her line manager. Unfortunately this proved not to be the case.

39. Ms Thompson provided a two week induction plan for the claimant at the start of her employment, followed by weekly 1-1 meetings, monthly team meetings and occasional team workshops.

40. Between 2 September 2013 and 10 April 2014, the claimant undertook: a two week induction period; thirteen 1-1 meetings with Linda Thompson; systems training (including 1-1 and team training) on six dates; a systems shadowing session with another member of staff; and a further one hour meeting on another date.

41. Despite the extensive involvement of her line manager, problems emerged with the claimant's work right from the start. Ultimately Ms Thompson was to comment that in 18 years of managing staff she, 'invested more time in supporting the claimant than any other staff member at any band'.

42. During the induction period the claimant was familiarised with the working practices and bank office operation, including an introduction to her role. All the protocols and processes relating to the bank office were shared, including the respondent's mandatory training matrix and a document setting describing the process of sourcing and booking staff training.

43. The claimant was also provided with training in the 'Healthroster/Bankstaff' system. This is a system which is used successfully in bank offices in over 300 health trust UK wide. It is used to roster and pay nursing staff, book and pay for bank shifts, maintain professional registration records and record all mandatory training.

44. Following the induction period Ms Thompson asked the claimant to draw up a plan setting out how she would deliver and manager the mandatory training element of her role. The claimant failed to do so. She produced a document of a different nature to that requested by Ms Thompson. A plan was not forthcoming by 5 November 2013 in response to a second request by Ms Thompson, consequently Ms Thompson herself performed the task for the claimant and drew up a plan for her to use.

45. Difficulties with the claimant's understanding of her role and the quality of her work persisted. She set up a manual spreadsheet instead of using the respondent's system provided for the purpose and which she was required to use as part of her role. This was a serious failing.

46. Matters which Ms Thompson discussed with the claimant at the 1-1 meetings included:

• The claimant not referring to the respondent's mandatory training matrix, and the respondent's regular confusion over what courses were mandatory

• Action points being agreed at the weekly meetings yet not being actioned

• The claimant regularly confirming that she had completed tasks and recorded information which, when checked, had not been completed

• Complaints from bank staff about their calls not being returned

• Lack of progress with calling bank staff to review their training requirements

• Inability to understand and to use the basic system

• Incorrect input of training dates, and the input of training dates which had not taken place

• No relationships built with trainers or the organisation of training courses to meet the needs of the bank staff

• Lack of progress in ensuring that bank staff reached compliance with their mandatory training requirements which was a key function of her role: on 07/01/14 the respondent reported 48 staff reviewed and 20 compliant; on 20/01/14 she reported 85 staff reviewed and 0 compliant; on 12/02/14 she reported 90 staff reviewed and 0 compliant; on 10/03/14 she reported approximately 120 staff reviewed and 0 compliant. By 10/03/14 the claimant had been in post for 6 months.

47. Despite what the tribunal finds to have been a very high level of support offered to the claimant to help her perform her role, the lack of any adequate improvement in her performance ultimately led to an informal process capability procedure being commenced on 12 May 2014.

48. The areas of concern included:

• Failure to review mandatory training for bank only staff in line with the claimant's job role and expectation

• Failure to progress compliance of staff with the respondent's required mandatory training

• Failure to address the action points from the claimant's weekly 1-1 meetings with Ms Thompson

49. At the meeting on 12 May 2014 an action plan was set for the claimant for progress by 19 June 2014. A high level of support continued to be offered to her. Between 12 May 2014 and 19 June 2014 were scheduled: four 1-1 meetings with the claimant's line manager; a coaching session on the Healthroster system; and a meeting with the E-roster manager for further systems support.

50. None of these scheduled meetings took place. The claimant was off work sick from 13 May 2014 until 15 September 2014.

51. The GP records at that time include the following [sic. save that emphasis added]:-

'21/05/2014 Surgery Consultation Stress at work. In dispute with line manager as to functionality of new it system. discussed. Was going to take time off but not really unfit to work. Advised to put in writing what the issues are and give it to line manager and the next manager. Advised to ct to work unless she becomes unfit to do the job Dr R W D Ross

23/05/2014 Telephone call from a patient Dr M W D Christy

19/05/2014 MED3 - doctor's statement until: 06/06/2014 Diagnosis: [D] Work stress: [D] Work stress Dr M W D Christy

23/05/2014 Telephone encounter - has been off work re situation [above] since 13/05/14 and feels unable to return. Emphasised dangers of being off and that she must put her concerns in writing to her line manager. Ok to give short line Dr M W D Christy

02/06/2014 Telephone encounter - due to RTW today but migraine ++. Union now involved and hope to set up meeting in next 2/52 Dr M W D Christy

02/06/2014 MED3 - doctor's statement until: 16/06/2014 Diagnosis: [D] Work stress Reason: [D] Work stress and migraine Dr M W D Christy

14/07/2014 MED3 - doctor's statement for: 28 days Diagnosis [D] Work stress Reason: [D] Work stress and migraine Dr M W D Christy

08/08/2014 Failed encounter Pt requested MED3 has been advised to make appt. Left message on landline can't leave message on mobile Dr R W D Ross

13/08/2014 Surgery consultation Dr Aisling Donaghy

11/08/2014 MED3 - doctor's statement for 28 days Diagnosis: Stress at work Reason: Stress at work Dr Aisling Donagy

13/08/2014 Stress at work pt states OH at work deem fit for work, has put list of suggestions to line manager regarding her return to work, hopes to return within next month. Dr Aisling Donaghy

05/09/2014 Surgery consultation Dr M W D Christy

05/09/2014 MED3 - doctor's statement until 15/09/2014 Diagnosis: Stress at work Reason: Stress at work Dr Aisling Donaghy'

There are other entries in the GP notes covering the period above but they relate to repeat prescriptions or other unrelated matters.

52. It is of note that in the GP record for 21 May 2014, that the claimant told the doctor that she was, 'in dispute with line manager as to functionality of new IT system'. She went on to tell him that, 'she was going to take time off but not really unfit for work'. The doctor sensibly advised her that she should go to work unless she became unfit to do the job. It is highly significant that in this first consultation post-commencement of sick leave, in the privacy of the doctor's consultation room, no mention was made of any debilitating impact on the claimant's performance at work by reason of migraines or cluster headaches. The problem was an IT system.

53. The MED3 dated 19 May 2014 was on the ground of work stress. Mention of migraine did not appear until the MED3 obtained via a telephone consultation on 2 June 2014 which was the day she was due to return to work.

54. In cross-examination the claimant suggested that her work would be affected by headaches 70% of the time. In the written closing submissions prepared on behalf of the claimant it is said that: 'Chronic Cluster headache is a very painful neurological condition which for the claimant consisted of a constant headache which is interspersed with cluster bouts. Cluster bouts have occurred during the period 2013 - present at a frequency of 2 - 3 period per month lasting for 2 - 4 days. These bouts incapacitate the claimant from any normal day-to-day activity as she remains bed bound. Between bouts the headache has an adverse effect on normal day-to-day activities of work life as it impacts on memory, cognitive ability and thought processes'.

55. There is no support found in the medical records from September 2013 onwards to corroborate the assertions reported in paragraph 54 above. This is extraordinary. If indeed the regular repeat prescriptions for migraine medication were failing with such regularity it is inconceivable that a record of these failures would not be reported in the GP notes. The impact as described on behalf of the claimant is such that it is beyond belief that she should simply have accepted her repeat prescription without regularly complaining to the doctor that it was not working.

56. The evidence indicates that when actually suffering an episode of migraine the claimant would be unable to work, but no medical evidence has been produced in support of the assertion that, 'Between bouts the headache has an adverse effect on normal day-to-day activities of work life as it impacts on memory, cognitive ability and thought processes'.

57. The report of Dr Christy provided by the claimant as set out in paragraph 19 above states that, 'In the absence of her taking her medication for migraine headaches, depression and adjustment disorder it is likely that she would have even more frequent severe migraines that would render her incapable of performing her activities of daily living whilst the migraine was present'. There is no reference to any ongoing impact on 'memory, cognitive ability and thought processes' between episodes of migraine.

58. The impression given by Dr Christy's report is the same as that imparted by the largely incident free repeat prescribing of migraine medication, namely that the impact of the condition is controlled effectively by medication most of the time.

59. On 19 June 2014 while the claimant was on sick leave a meeting took place at the claimant's request with Ms Thompson, the claimant and the claimant's then union representative. The meeting was requested to discuss what was described as, 'unfairly invoking informal capability procedure'.

60. At the meeting on 19 June, as at the previous meeting on 12 May, no mention was made of any health condition impacting on the claimant's performance. Her concerns focussed on what she asserted was a lack of training and support for her.

61. An occupational health report was received dated 1 August 2014. The reporting doctor referred to the claimant being off work since May 2014 with work related stress. The doctor went on to state that, 'Essentially, [the claimant] describes some pressures in terms of a lack of support and a training deficiency. She indicates that she has made management aware of her concerns and has made some suggestions. She has an underlying condition of migraine and is receiving appropriate treatment.' It is of note that when describing the source of the difficulties at work to the occupational health doctor, the claimant did not attribute them to her migraines. The claimant's migraines were described as a chronic condition which can flare-up periodically.

62. A meeting was held on 27 August 2014 with Ms Thompson, the claimant's union representative and the claimant, after receipt of the occupational health report. The meeting focussed on the claimant's concerns about training and support and facilitating the claimant's return to work. Again no reference was made by the claimant to the impact of her migraine condition on her working performance.

63. Unfortunately after the claimant's return to work on 15 September 2014 her performance did not improve.

64. The informal capability procedure which had been interrupted by the claimant's period of sick leave was re-introduced on 16 September 2014. A period of review was set and the provision of support was outlined.

65. At the end of the informal review period matters had not improved adequately. A formal capability process step 1 meeting was held on 25 November 2014. Present were the claimant, Ms Thompson, and the claimant's husband who from that point on acted as the claimant's trade union representative in substitution for her previous trade union representative. The matters raised by the claimant included assertions about the adequacy of the systems and processes to enable her to perform her role. Neither the claimant nor her husband raised the impact of migraines as a possible explanation.

66. A workplace meeting took place on 2 December 2014 between the claimant and Ms Thompson to address concerns raised by the claimant about the IT system reporting of her activity. It was found that there was no fault with the system's reporting, the data had been entered incorrectly by the claimant.

67. The claimant raised a grievance dated 12 January 2015 alleging that an employee has no voice in an informal capability process. She complained that the decision to move to a formal process lay with the manager and that there was no appeal against this decision. The grievance was considered and by letter dated 6 May 2015 the claimant was notified that it had not been upheld.

68. Further support was offered to the claimant during the formal review period.

69. A capability review meeting took place on 23 March 2015. The meeting was attended by Ms Thompson, the claimant and the claimant's husband. The notes of the meeting demonstrate that both the claimant and her husband very actively and assertively engaged in the meeting.

70. On the morning of the meeting Ms Thompson was informed by the claimant by e-mail that the ICT training room had been booked so that the meeting could be recorded in order to ensure that if anything was contested concerning the minutes of the meeting that there would be a recording. Ms Thompson noted the concern but declined the suggestion that the meeting should be held other than in the pre-arranged meeting room.

71. At the outset of the meeting Mr Peters expressed the concern that the records of earlier meetings may not have been adequate so that he had booked the ICT training room that morning so that there would be a video recording of the meeting. Ms Thompson confirmed that the suggestion had been declined and invited the claimant and her husband to take notes.

72. At the outset of the meeting Mr Peters said that a grievance had been submitted and that the capability decision should be adjourned. He complained about the fact that a decision had been made not to adjourn the capability process. Mr Peters told Ms Thompson that they were likely to take a harassment case against her.

73. When the meeting got underway, Mr Peters advised his wife not to answer a number of questions about her progress in terms of the number of bank staff under review and the number of staff who were compliant with their training requirements. One reason he offered for his advice not to answer was that it was obvious that Ms Thompson would have checked the figures and that she was simply setting up the claimant to fail.

74. During the course of the meeting the claimant spoke extensively about the failures which she perceived in the systems, processes, support for her, and her workload.

75. The outcome of the meeting was that the capability concerns remained and the claimant was informed that she would be referred to a Step 2 capability meeting.

76. The meeting of 23 March 2015 is yet another example in the capability process where among all the concerns expressed by the claimant and her husband, there was no mention of any impact of migraines on the claimant's work performance.

77. The tribunal finds that this is significant. It is quite clear that the claimant and her husband were anxious at the March meeting to exonerate the claimant from any suggestion that she was not capable of performing the Band 5 role which she had sought. Given the history of the claimant's unhappy prior employment experience as described at paragraph 31 above, and its asserted association with cluster headaches, it is astonishing that there was no mention at the meeting of the devastating consequences of the headaches which the claimant says that she endured post September 2013.

78. Ms Thompson continued to provide intensive support for the claimant in her work. Between 15 September 2014 and 11 May 2015 the claimant had: seventeen 1-1 meetings; a systems training and two systems coaching sessions; a return to work orientation and a meeting to revisit role expectations (including the preparation of a 'how to' guide).

79. A step 2 capability meeting took place on 1 June 2015. In attendance were the claimant, Ms Thompson, and Mr Peters as the claimant's union representative. The panel consisted of Noeleen McCreanor, who is the respondent's Assistant Director of Human Resources, and Mr Stephen Powell, ICT programme manager. Ms Thompson prepared and presented a document outlining her concerns. The claimant and Mr Peters' comments in response again focussed on criticisms of the systems, process and support offered to the claimant in the post.

80. At the meeting on 1 June 2015, the claimant again did not associate the performance issues with her migraines. In fact she read out a short pre-prepared statement which focussed on her criticisms of the systems, process and support offered to her. The statement included the sentence, 'I have invested a huge amount of myself and my time into developing this post and my family life and home life have suffered due to the pressures and constraints this post has placed on me'. It is remarkable that if indeed the migraines had been impacting on the claimant's performance that no mention was made of them when the claimant was addressing the personal cost which she said that the role had inflicted on her.

81. The claimant and her husband understood the seriousness of the position in which she found herself at a formal stage 2 capability meeting. Now was not the time to withhold relevant information which might assist her and yet she did. In evidence the claimant sought to explain away the absence of any reference to migraines in her pre-prepared statement to the influence of her former trade union representative, Ms Walker.

82. It is unclear why Ms Walker was still involved given that the claimant's husband had for some time been attending meetings with her in a capacity as her trade union representative. In cross-examination the claimant alleged that she told Denise Walker about cluster headaches. She said that she was being directed by Ms Walker and that the reference to the headaches had been taken out of the pre-prepared statement, although she did not know if there was a reference to them in an earlier draft.

83. In cross-examination Mr Peters was unable to offer any cogent explanation as to why the issue of the migraines had not been mentioned at any of the meetings or to Linda Thompson in any one of the dozens of 1-1 meetings with the claimant. Mr Peters suggested at one point that his wife had not wanted to mention it to her line manager. No satisfactory reason was offered for this.

84. In respect of the meeting with Ms Thompson on 23 March 2015, Mr Peters sought to explain away the failure to mention the impact of migraines by stating that he thought that at that point he wrongly thought that there was absolutely no way that the capability process could proceed because of the difficulties which the role would have presented to an able bodied person. This implies that Mr Peters had given some thought to the issue of the potential impact of the migraines at that time and decided that it was unnecessary to mention it.

85. The tribunal has had the benefit of reviewing a large quantity of documentation and hearing lengthy cross-examination of both the claimant and her husband. The tribunal has no doubt that neither the claimant nor her husband would have been slow to mention the impact of migraines on her performance had they believed that to be the case at the time.

86. In fact, in her own evidence the claimant did suggest that she had mentioned cluster headaches to Ms Thompson but not in the context of it impacting her performance. In her witness statement the claimant sought to rely on the fact that in September/October 2013 Ms Thompson had vacated her own room to give the claimant a quieter place to work than the open plan office, as evidence 'reinforcing the understanding that she knew of my cluster headaches and that reasonable adjustments were appropriate'. The tribunal rejects this suggestion. Neither the e-mail from the claimant requesting the use of Ms Thompson's room, nor Ms Thompson's e-mail in reply, make any mention of migraines or cluster headaches as the reason for the request. If indeed the claimant had made Ms Thompson aware of her cluster headaches, it is surprising that the problem was not referred to in justification of the claimant's request to use Ms Thompson's room. The tribunal accepts the evidence of Ms Thompson that the problem of headaches was not mentioned to her by the claimant. Ms Thompson's evidence was balanced, coherent and compelling.

87. If the claimant believed that Ms Thompson was aware from an early stage about her background of problematic cluster headaches it would be all the more baffling that she and her husband chose not to mention them in meetings where her capability to perform the job specification was being challenged.

88. The stage 2 capability meeting on 1 June 2015 was adjourned to 16 June 2015 to permit the claimant to provide further documentation.

89. The adjourned meeting scheduled for 16 June did not take place. The claimant had gone off sick on 8 June 2015. She informed Ms Thompson by phone message that she was too unwell to work. On 9 June 2015 she texted Ms Thompson to say that she would not be in that day. Ms Thompson texted back ask the claimant to contact her to let her know the reason for her absence. On 10 June 2015 the claimant texted to say, 'still not much better, stress and cluster migraines'.

90. The GP records show that the claimant attended on 18 June 2015 and was diagnosed with work stress. It was noted, 'Long hours. Line manager is inflexible and has set her unachievable goals/targets. Fatigued. Stressed. Anxious. Difficulty sleeping as mind is racing. Occasional palpitations. On propanol for headaches. Works in LVH admin manger for bank nurses. PMH of work stress. Was off x 4 months in 2014. Is taking a grievance against line manager. Needs time out of work. Will be seen by Occup Health. Declined any further Rx at present'. An MED3 was issued from 15 June 2015 on the grounds of work stress.

91. On 9 July 2015 the claimant attended the GP again and was diagnosed with work stress. The notes record, 'Work stress - ongoing dispute with Trust. She feels she has been dealt with unfairly. Union rep involved. Has appeal hearing next week and also due to see Occ Health. No date set for final disciplinary hearing. Ok to stay off work whilst this is happening'. She received an MED3 on the grounds of work stress for a further 28 days.

92. It is again significant that in her meetings with the doctor in July, the claimant did not suggest that her migraines were substantially impacting her life and work. There is no mention of the cluster headaches which the claimant had told Ms Thompson were keeping her off work on 10 June 2015.

93. The claimant saw occupational health on 17 July 2015 and returned to work on 12 August 2015.

94. The step 2 capability meeting resumed on 19/08/15. Again the claimant and her husband focussed on their concerns about the job generally. It was not suggested that migraines had impacted on her performance of the role.

95. The outcome of the Step 2 meeting was notified to the claimant by letter dated 25 August 2015. On the grounds of capability detailed in the letter the claimant was downgraded from Band 5 to Band 3.

96. It is of note that in an attendance at the GP on 24 September 2015 when the claimant was diagnosed with work stress, it is recorded that, 'had disciplinary meeting at work and down graded. Upset as they didn't seem to listen to her evidence and Union not helping. Thinking of going down legal route. Stay off work in the meantime. Migraines worse so try increasing Propranolol to 160mg'. Again there is no reference to the claimant complaining that the migraines have impacted her work performance or that the migraines have had a role to play in her down grading.

97. Following careful consideration of all the evidence, both oral and written, the tribunal firmly concludes that the reason why the migraines are not so mentioned is because they did not impact on the claimant's work performance. The claimant's underlying condition of migraines played no part in the difficulties identified by the respondent during the capability process.

98. The claimant could not have been at work on days when the migraines were bad, and there is no corroborative independent evidence to support the claimant's contentions about the lingering impact of migraines between bouts.

99. The issue of the treatment of the claimant's grievance is not well dealt with or made out in the claimant's evidence and closing submission.

100. On 29 October 2015 the claimant attended Dr Poots of occupational health. He identified that she was not capable of attending work and considered adjustments that could be made to help her return to work. He was of the view that, 'While adjustments would help her return to work, this will only be possible when her health has improved'. In response to the question as to whether Mrs Peters can participate in investigations and meetings, Dr Poots replied that, 'In my opinion such participation would cause distress, which would exacerbate her underlying depression. I recommend that Mrs Peters is not directly involved in these processes'.

101. Following completion of the occupational health report the claimant lodged a 28 page grievance dated 31 October 2015. The grievance letter was detailed and referred to various items of legislation and case law. It did however bear the hallmarks of a scattergun approach, raising grievances of many different natures. These included whistle blowing, breach of the employer's duty in respect of health and welfare at work, disability discrimination, a complaint of negligence against the author of the 17 July 2015 occupational health report, personal injury, assertion of a statutory right, unlawful harassment by Noeleen McCreanor, and defamation by Noeleen McCreanor.

102. By replies to a notice for additional information in these proceedings, the claimant withdrew claims for defamation, whistle blowing, and breach of contract.

103. The respondent's position was that it was unable to deal with the grievance until the claimant was fit to engage with the process in view of the advice of occupational health. On 31 May 2016 the respondent's senior human resources manager, Mr O'Toole, wrote to the claimant to inform her that Dr Poots had recently advised that she was now fit to engage with the Trust and have her grievance responded to in writing. The claimant was invited to confirm that she would like her grievance to be dealt with and responded to in writing. She was told that if she provided that confirmation a panel would be set up to deal with her grievance which would also consider any further information which she wished to forward.

Relevant Law

104. Section 3A(5) of the Disability Discrimination Act 1995 as amended ("the 1995 Act") prohibits direct discrimination. It provides:-

"A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities are the same as, or not materially different from, those of the disabled person."

Direct Discrimination occurs where a person's disability is the reason for the less favourable treatment. It cannot be justified.

105. Section 4A of the 1995 Act imposes a duty to make reasonable adjustments:-

"(1) Where -

(a) a provision, criterion or practice applied by or on behalf of an 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 take in order to prevent the provision, criterion or practice, or feature, having that effect."

106. A non-exhaustive list of examples of reasonable adjustments are set out at Section 18B of the 1995 Act. It is for the tribunal to decide whether something is a reasonable adjustment, objectively, on the facts of the particular case.

107. Where facts are proven from which the tribunal could conclude that an act of unlawful discrimination has occurred in the absence of an adequate explanation from the respondent, then the burden of proof shifts to the respondent to demonstrate that he did not commit the act. The following principles emerge from the authorities:-

• It is a two stage process. First the claimant must prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent committed the unlawful act of discrimination. Once the tribunal has so concluded the respondent has to prove on the balance of probabilities the treatment was not on the grounds of disability.

• The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination.

• In most cases it would be sensible for a tribunal to formally analyse a case by reference to two stages but it is not obligatory for them formally to go through each step in each case [ Laing v Manchester City Council [2006] IRLR 748 at para 73].

108. The respondent did not refer the claimant to any authorities.

109. In her written closing submission the claimant referred the tribunal to eight authorities in a section headed, 'Relevant Case History'. The tribunal has considered the contents of this section, including the summaries relied on by the claimant of what is said to be the relevant point in each case.

Conclusion

110. The tribunal remained acutely aware throughout these proceedings that the claimant currently suffers an adjustment disorder with anxiety and depressive symptoms. It is difficult for anyone to undertake proceedings of this nature as a litigant in person, and that difficulty is liable to be more acute for a person with an adjustment disorder. The tribunal took care to allow regular breaks for the clamant and considerable latitude in the questioning on her behalf by Mr Peters. On occasions this latitude was given in the teeth of objection by the respondent's counsel. The tribunal was however anxious to ensure that the claimant's case was fully ventilated. The tribunal rejects entirely the suggestion made at one point by Mr Hamill that Mr Peters was making light of the proceedings. The tribunal found Mr Peters to be courteous and polite throughout in the most difficult of circumstances.

111. Having given careful consideration to all the evidence in the case, the tribunal has been driven to reach the conclusions of fact set out above. In the circumstances the tribunal rejects all claims of disability discrimination.

112. At times the claimant and Mr Peters gave the impression that he thought that a finding of disability would of itself somehow establish discrimination and failings on the respondent's part. This is not so. Disability of itself does not establish discrimination. The claimant has failed to satisfy the tribunal that there are facts from which in the absence of explanation the tribunal could conclude that the respondent had discriminated against her on the grounds of disability.

113. The evidence does not support the suggestion that cluster headaches/migraines either caused the difficulties which led to the capability process or were the source of differential treatment of the claimant. The source of the claimant's problems were capability issues which were unrelated to her migraine/cluster headache condition. The claimant was not placed at any disability related disadvantage in the capability process. No reasonable adjustments on the grounds of disability were required.

114. In view of the findings of fact the tribunal rejects the assertion that there was a failing on the part of the respondent to investigate the claimant's disability. Throughout a long process neither the claimant nor Mr Peters suggested that the migraines were impacting on the claimant's work performance. This failure is rendered more striking by reason of the demonstrated capacity of both the claimant and Mr Peters to articulate forcefully their objections and concerns to injustices which they perceived during the course of the process and the respondent's treatment of the claimant.

115. The claimant's case as to the impact of the migraines on her is not supported by the medical records as to the incidence and impact of migraines. No medical evidence has been provided to support the assertions made in respect of the alleged impact of migraines on memory, processing and cognition between bouts of migraine.

116. In the circumstances of the case advanced by the claimant the tribunal has not been satisfied that there has been any discrimination in respect of the treatment of her grievance. The process followed by the respondent was entirely appropriate. The tribunal rejects the suggestion that there was a failure to take proper account of the occupational health advisor's advice after her downgrading.

117. The tribunal knows that the decision to dismiss the claims will be deeply disappointing to the claimant and Mr Peters. It is however the only decision which the findings of fact allow.

Employment Judge

Date and place of hearing: 30 January 2017 - 3 February 2017; and

27 April 2017, 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 >> Peters v South Eastern Health & Social ... [2017] NIIT 01108_16IT (06 September 2017) URL: http://www.bailii.org/nie/cases/NIIT/2017/01108_16IT.html Cite as: [2017] NIIT 1108_16IT, [2017] NIIT 01108_16IT

Industrial Tribunals Northern Ireland Decisions