THE INDUSTRIAL TRIBUNALS

CASE REF:	128/03

CLAIMANT:			Ruairi McFaul		

RESPONDENTS:		1.	The Social Security Agency
				2.	The Department for Social Development
				3.	The Northern Ireland Civil Service				

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and was discriminated against on the grounds of disability.  The respondents are ordered to pay the compensation set out in the body of this decision to the claimant.    

Constitution of Tribunal:

Chairman:		Ms Crooke	

Members:		Mr Kinnear
			Mr Heaney

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by McGuinness & Canavan Solicitors.

The respondents were all represented by Ms S Keegan, Barrister-at-Law, instructed by the Departmental Solicitors Office.

REASONS

1.	Sources of the evidence

The tribunal had evidence from the claimant on his own behalf, from his General Practitioner, Doctor Mullen, from his Consultant, Doctor Michael Curran, from Nurse McCurry (the Occupational Health Nurse) and from Doctor B McCarthy, the Occupational Health Doctor.  On behalf of the respondents the following persons gave evidence:-

Susan Johnston, Deirdre McVeigh, Carol Dougan, Bernie McCarron, Malcolm Beattie and Patrick Magee.  The tribunal also had a bundle of agreed documents.  

2.	The claim and the defence

	In his originating application, the claimant made a number of claims as follows:-

	(a)	Breach of contract.

	(b)	Unlawful deductions from wages.

(c)	Disability discrimination (including less favourable treatment and failure to make reasonable adjustments).

(d)	Wrongful dismissal.

(e)	Unfair dismissal for making protected disclosures.

(f)	Detriment for making protected disclosures.

(g)	Unfair dismissal.

Before the tribunal, the case proceeded as a claim for unfair dismissal and a claim for disability discrimination.  The respondents accepted that the claimant had been dismissed but claimed that he had been fairly dismissed on the grounds of inefficiency.  The respondents also denied the claim made by the claimant that he had been discriminated against on the grounds of disability.

3.	The Issues

	(i)	What was the reason for the claimant’s dismissal?

(ii)	Was the claimant discriminated against on the grounds of disability contrary to Section 4(2) of the Disability Discrimination Act 1995?

4.	Analysis of evidence

	In general, the tribunal preferred the evidence given by or on behalf of the claimant as being more consistent and in line with the written documentation provided.  The tribunal unanimously found the witnesses for the respondents to be evasive and in general lacking in credibility.  The tribunal excepts the evidence of Deirdre McVeigh from the generality of this comment.

5.	Findings of fact

(i)	The claimant was employed by the first named respondent as an Administrative Officer working in Disability Living Allowance Branch in Castlecourt in Belfast.

(ii)	The claimant had a history of difficulties with his Line Manager, Susan Johnstone.

(iii)	The difficulties culminated with a meeting with Mrs Johnstone and her Line Manager, Deirdre McVeigh.

(iv)	The claimant considered that he had been bullied and harassed and lodged a grievance.  There were various meetings in April 2001 involving the trade union to which the claimant belonged and the Line Management.

(v)	The structure of Line Management was as follows:-

	(a)	Mrs Susan Johnstone  	-	EO2

	(b)	Deirdre McVeigh		-	at the time in question EO1

	(c)	Carol Dougan		-	Staff Officer

	(d)	Bernie McCarron		-	Office Manager and DP.

(vi)	On 3 May 2001, the claimant telephoned Carol Dougan from the Staff Care Unit and said that he was feeling harassed.  At a later meeting he indicated that he felt that he was unable to work in Disability Living Allowance Branch because he considered he was being constantly harassed and put under pressure by his EO2, Mrs Susan Johnstone.  The claimant was told to report for work as normal on 4 May 2001 and arrange to meet Carol Dougan to go through his complaints.  

(vii)	On 4 May 2001, the claimant went directly to Staff Care Unit and required the Staff Care Officer to ring Mrs Dougan to indicate that the claimant wished to take leave on 4 and 8 May 2001.  An initial draft of the grievance was left with Mr Best and collected by hand by Mrs Dougan.  

(viii)	There then followed a series of meetings concerning the claimant and his grievance which culminated in a meeting between Carol Dougan and the claimant on 24 May 2001 to obtain his signature to his formal grievance.  In that grievance there was not overt mention of Deirdre McVeigh.  On 30 May 2001 Deirdre McVeigh contacted the claimant to agree a date to hear the grievance.  The claimant disputed that Deirdre McVeigh was the correct person to hear the grievance as he was also complaining about two sets of minutes (one of which had been authored by Deirdre McVeigh).  The management persisted in indicating that the grievance would be heard by Mrs McVeigh.  There was a failure on the part of management to properly examine the claimant’s concern about the level of management at which his grievance was raised and to identify properly the issue which the claimant was raising - that Mrs McVeigh could not be judging her own cause because of the allegation that the grievance contained a grievance also against herself.

(ix)	A meeting was to be arranged in relation to the hearing of the grievance.  Mrs McCarron made a mistake about the date of the meeting.  The claimant understood it to be on 18 June 2001, and Mrs McCarron went to his desk and told him that the meeting was to be held on 8 June 2001.  The claimant indicated that this was insufficient notice and Mrs McCarron insisted that the meeting was to go ahead.  The claimant was also concerned that he would not have enough time to prepare and obtain trade union representation.  The claimant sent a formal memorandum to Mrs McCarron on 8 June 2001 indicating that he could not meet them on that date.  

(x)	Mrs McCarron and Mrs Dougan decided to meet with the claimant on 8 June 2001.  There was a dispute in the evidence about the purpose of the meeting.  The claimant would not meet them without the benefit of trade union representation.  The tribunal prefers the claimant’s version of events as it was apparent from the evidence that there was at least a good possibility that this meeting to allegedly hand over a letter was not necessarily going to be restricted to that action.

(xi)	Mrs Dougan threatened the claimant with suspension if he did not attend the meeting.

(xii)	The claimant would not attend the meeting and was in fact suspended by Mr Malcolm Beattie of Personnel Branch.  The claimant was instructed to return to duty by Mr Beattie on 16 July 2001.  Mr Beattie also issued a reprimand to the claimant and indicated that the grievance would be dealt with as it stood (i.e., by Deirdre McVeigh).  The grievance was progressed without involvement of the claimant.  

(xiii)	Correspondence continued throughout August and September between the claimant and Personnel.  However, the Personnel Department did not clarify the appropriate steps to progress the grievance.  The claimant was unclear as to the next stage and believed that it was to go Bernie McCarron in whom he had no confidence considering her involvement in the events which led to his suspension.  

(xiv)	The claimant’s grievance was deemed to have been completed and he was required to return to Disability Living Allowance Branch by letter dated 12 October 2001.

(xv)	The claimant took sick leave in October 2001 as he simply could not face returning to Disability Living Allowance Branch.  

(xvi)	The first named respondent was aware that the grievance and controversy was related to the claimant going on sick leave.  Mr Malcolm Beattie of the Personnel Branch also accepted that the respondent knew the claimant was suffering from work related stress and this related to what had happened in Disability Living Allowance Branch and the grievance.  The next developments in the procedure were characterised by an intransigent attitude on the part of the respondent.  The respondent indicated that the claimant could only return to work in Disability Living Allowance Branch as ordered and the grievance could only be progressed once he had returned.

(xvii)	The respondent sent the claimant for a medical in March 2002.  He saw Nurse McCurry who stated in her report … the claimant (“has unresolved management issues that are being dealt with through the applicable channels.  These issues require addressing to enable Mr McFaul to return to work.  If unresolveable a transfer may be an option”.)  This medical was supported by a letter from the claimant’s General Practitioner, Doctor Mullen who wrote to the respondent indicating that the claimant would benefit from an internal transfer to resolve his stress symptoms.  

(xviii)	Personnel Branch ordered Mr McFaul back to work in Disability Living Allowance Branch and occupational sick pay was discontinued in or around April 2002.  The claimant was telephoned by Mr Maguire (another Manager in Disability Living Allowance Branch) inviting him to a back to work interview.  It should be noted that Deirdre McVeigh was going to be part of the Line Management Structure even though Mr Maguire had not previously had anything to do with the claimant.  The claimant’s advisers requested a meeting but the respondents indicated there would be no discussion until the claimant returned to work. 

(xix)	In July 2002, the Occupational Health Doctor, Doctor McCarthy provided a report on the claimant stating that he “is capable of work but not in current situation until issues are resolved - management issue”. 

(xx)	The next significant event in the chain of causation was a letter dated 23 August 2002 requiring the claimant to return to work in Disability Living Allowance Branch albeit the Appeals Section.  Furthermore, the same letter indicated that a failure to return to work would be regarded as an act of inefficiency and the inefficiency procedures would be initiated.  This meant that they would move to dismiss the claimant on the grounds of inefficiency due to unsatisfactory attendance.

(xxi)	The claimant was actually dismissed on this ground on 4 October 2002.  Recourse to the appeal mechanism resulted in the dismissal being upheld.

(xxii)	The claimant resumed part-time work with a new employer on 15 September 2003 and subsequently commenced full-time employment with the same employer on or about 11 January 2005.

6.	Short statement of the relevant applicable principle of law

	(a)	Unfair Dismissal  

	 The general law relating to unfair dismissal is found in Article 130 of the Employment Rights (Northern Ireland) Order 1996.

(b)	Disability Discrimination Claim

	The basic right for an employee not to be discriminated against on the grounds of disability is found in Section 4 of the Disability Discrimination Act 1995.

7.	The tribunal’s conclusions having applied the relevant principle of law to the facts found

	(a)	The unfair dismissal claim.

When dealing with a sick employee, the generally accepted industrial relations guidance is that there should be:-

	       	(i)	Consultation with the employee; and
	
		(ii)	Consultation with medical advisers.

The claimant was a vulnerable individual.  He had a history of difficulty with his mental health.  The claimant was reluctant to meet with any of his line management without the support of his trade union representative.  The claimant refused home visits but the tribunal will consider that this is not sufficient of itself to absolve the respondent from its consultation responsibility.  While the respondents denied ever receiving a copy of the claimant’s responses to the medical questionnaire, it is feasible that the management could have dealt with the issue of consultation in a more pragmatic way.  Given the claimant’s medical history (of which the management were aware) and given his stated concerns that his grievance was being dealt with at the wrong level of management it would surely have been feasible for a meeting to have been arranged between the claimant and his trade union representative and management.  The respondent’s Mr Malcolm Beattie acknowledged that this would have been feasible but said that he simply did not think of doing it.

However, it is on the issue of consultation with medical representatives that the respondents really behaved unreasonably.  There was medical evidence from the claimant’s General Practitioner, from Nurse McCurry, the Occupational Health Nurse and from Doctor McCarthy, the Occupational Health Doctor.  The common message in all these reports was that the claimant was fit to return to work provided that the issues he had raised were dealt with.  The management of the respondent selectively interpreted this report by saying that the claimant should return to work and failed to in any way address the issue of dealing with his grievance procedure appropriately.  It is a fundamental principle of law that a person cannot be judge in his or her own cause.  The respondent in this case was seeking to make Deirdre McVeigh the deciding authority in connection with a grievance which referred to her (albeit not by name).  The claimant was unable to accept this patent unfairness and there is no doubt that this contributed to the claimant’s mental health condition.  The respondent purported to dismiss the claimant on the grounds of inefficiency arising from his poor attendance, thus bringing the actions of the respondent within the potentially fair conduct category of dismissals contrary to Article 130(1)(b) the Employment Rights (Northern Ireland) Order 1996.  The tribunal does not accept this assessment of the situation by the respondent.  The tribunal finds that the respondent failed abjectly to consult properly concerning the condition of the claimant, both with the claimant and with medical opinion.  There was an unhesitating readiness on the part of the respondent to accept only the first part of the diagnosis.  This is not proper consultation.  This is nothing but a failure to look at the whole diagnosis, and a wilful disregard of the caveat that sorting out the claimant’s work issues would make him fit to return to work.  Once the respondent had fixed upon this course, then it was only a matter of time before the claimant would be dismissed.  The tribunal finds that this dismissal could more likely than not have been avoided on the balance of probabilities, had the respondent engaged properly in the basic duty of consulting with a sick employee.  The tribunal finds that it was unreasonable of the respondent to treat the claimant’s absence as a sufficient reason for dismissal and finds that the claimant was unfairly dismissed.       
  	
	(b)	The disability discrimination claim.

An employer is under a duty to make reasonable adjustments where any arrangements made by or on behalf of the employer, or any physical feature of premises occupied by the employer, places the disabled person concerned with a substantial disadvantage in a comparison with the person who is not disabled.  An employer is then required to take such steps that are reasonable in all the circumstances of a case to prevent the arrangements or physical features placing the person at a substantial disadvantage.  Was the duty triggered in this case?

The duty applies in relation to (a)  arrangements for determining to whom the employment should be offered;  or (b)  any trend, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.

This is not a case in which the respondent can claim to be unaware of the claimant’s condition.  His previous mental health condition was disclosed in the medical reports.  Additionally, the claimant provided a number of medical certificates which variously described his condition as stress, anxiety and depression, or stress or work related stress.  Mr Potter argued that once the respondent had its own occupational health diagnosis the respondent was fixed with knowledge of the claimant’s condition.  The tribunal accepts that this is the case.

Although the tribunal has set out the sequence of events in this case in some detail, because it was not possible to logically separate any shorter sequence, it is in fact the events of March - October 2002 that are relevant for the purposes of assessing the conduct of the respondent in relation to the claimant’s claim for discrimination on the grounds of his disability.

If the tribunal takes a notional snap shot of the position in this case in March 2002, it is presented with a claimant on stress leave from the previous October who has been ordered to return to work.  The tribunal has already found that at the very least the respondents had constructive knowledge of a possible disability situation and as such the relevant questions they should have been asking were what steps are to be taken to find out the situation? Can the person return?  How can the return be best managed?  If there is a lack of clarity, is further clarification needed from medical professionals?  Has consideration been given to a proper assessment of what is required to eliminate the disabled person’s disadvantage?  In this case the claimant was at a disadvantage because of his mental health difficulties.  There was absolutely nobody in the chain of management in whom he could place any confidence.  His points concerning grievance procedure being incorrectly operated were totally denied by his chain of management and Mr Beattie, the Personnel Manager.  In the hearing of this case, the tribunal noted that only Deirdre McVeigh (the person against whom the point was made) was honest enough to acknowledge with the benefit of hindsight, it was wrong of
the respondent to insist that she was the correct person to hear the claimant’s grievance.  This claimant had absolutely no confidence in his chain of management or Mr Beattie that his grievance would be correctly dealt with.  The tribunal finds that this was not an unreasonable view for the claimant.  He considered that he needed support and a person who would be on his side to help him in his dealings with the respondent.  This is why he refused to take even the most anodyne request of the respondent at face value i.e., the request to meet to hand over a letter, as he was concerned that he would be taken advantage of.  The tribunal has already found that this concern on the part of the claimant was well founded, and the respondent in general throughout the whole of the history of the grievance and the claimant’s subsequent illness, failed to take account of the fact that the claimant was a vulnerable, needy individual who did not have the mental stamina from March - October 2002 to be able to stand up to the chain of management in which he had lost all confidence.  Without support, the claimant considered that his grievance would be incorrectly handled.  

However, this is really a background consideration.  It is whenever we come to the issue of how the respondent dealt with the claimant’s request for a transfer, that the full level of the respondents intransigence is most clearly revealed.  The claimant did want to return to work in a job that would not cause him ill-health.  The claimant was so deeply concerned by this chain of management that he could not bear to be anywhere near the persons that comprised it.  He wished to transfer out of his job, but the offers of transfer were not to appropriate locations.  One was to a team in which Deirdre McVeigh was the Staff Officer.  That this move was considered shows the respondent’s failure to properly engage with the medical advice.  The advice was that the claimant was fit to return if his issues were resolved.  If the issues were not resolved, then the issue of a transfer of employment came into play.  The transfers considered were not realistic in the claimant’s particular circumstances.  The respondent is a large organisation, and the tribunal was not informed that it was impossible for the claimant to be moved to a situation where he would not come into contact with the persons in the chain of command with whom he had difficulties.  Effectively, therefore, the two offers of alternative employment were not reasonable adjustments.  We do not consider that the claimant was unreasonable in the adjustment for which he contended.  He simply asked for his issues to be resolved or to be transferred away from the chain of management who were failing to properly deal with his issues.  

In essence, the claimant was dismissed for being absent for one year (under the inefficiency policy) because of the wilful failure of the respondent to accept that adjustment should be made that would resolve his difficulties or allow him to transfer away from the source of the difficulty.

A subsidiary case was also made that the claimant had been indirectly discriminated against on the ground of this disability.  The tribunal did not see any evidence to suggest that the reason for the less favourable treatment was the disability of the claimant and rejects this.  

8.	(A.)  	Computation of compensation - Unfair Dismissal

As the claimant commenced employment with the respondent in May 1999 and was dismissed on 4 October 2002, he had three completed years of service with the respondent.  His gross weekly wage was £196.15 and his net weekly wage was £167.31 therefore, the basic award is computed as follows:-

Three years (1 is the appropriate multiplier) x £196.15		=	£    588.00

Compensatory Award

Immediate loss.  There was no loss between the periods of 15 October 2001 - 15 April 2002 as the claimant received full pay under the respondent’s occupational sick pay scheme.

Between 15 April 2002 and 4 October 2002 occupational sick pay was withheld.  This was also the period in which the respondent was failing to reasonably adjust to facilitate the claimant’s return.  Had the reasonable adjustments that have been discussed in the decision been made, the tribunal finds that the claimant could have returned to work and earned his full salary.  As such for his loss is computed as follows:-

49.57 weeks x £167.31 (net wage)				=	£8,293.56

From 11 September 2003 - 11 January 2005 the claimant obtained part-time employment with Galliagh Community Development Group being employed twenty eight hours per week as an administrator and receiving £140.00 net per week.  During this period (69.29 weeks) he earned £9,688.00.  Had the claimant not been dismissed from employment he would have earned £11,592.91 from the respondent and this makes his net loss for the period from 11 September 2003 - 11 January 2005   -	£1,904.91.

There is no continuing loss in this case as the claimant obtained full-time employment with the Galliagh Community Development Group on 11 January 2005 and is now paid £252.00 net per week.

The tribunal awards £200.00 for loss of statutory rights.

						£     588.00
						£  8,293.56
						£  1,904.91
						£     200.00
Total unfair dismissal compensation -	£10,986.47.

The tribunal has not dealt with the Breach of Contract and unlawful deductions claims as they have been subsumed in the unfair dismissal claim.

8.	(B.)	Discrimination compensation

The claimant has suffered an injury to his feelings which led to a serious psychiatric condition.  This was caused by repeated failure over a period of six months to properly address the claimant’s situation.  This culminated in the claimant being sacked for inefficiency.  We do not consider that the stress and anxiety to which this claimant has been subjected over a period of months is in any way trivial.  It is particularly offensive that the claimant was sacked for inefficiency when reasonable adjustments discussed in the decision i.e., properly engaging with the claimant and trying to come to grips with the points he was making and allowing him support from representatives throughout the process, or, if that was not possible transferring him away from the source of difficulty, were feasible adjustments.  The tribunal were certainly not told that they were unreasonable.  While it does accept that there is a waiting list for transfer, the tribunal does not accept that the legislature could have intended that this waiting list could be used to block the possibility of a transfer being a reasonable adjustment.  The claimant did try at a time when he was fitter to have meetings organised with representation through the offices of Mark Durkin.  Even this approach was rejected.  For all the reasons set out in the decision the tribunal award the sum of £10,000.00 as compensation for the injury to feelings suffered by the claimant.

The tribunal considers that it was particularly offensive of the respondent to have failed to pay occupational health pay from 15 April 2002 to the date of the claimant’s dismissal, when on the medical evidence it was plain that the claimant was only fit for work in certain circumstances.

Mr Potter also contended that the claimant had been caused actual psychiatric harm by the respondent.  The tribunal did not see anything in the medical evidence to support the contention and does not therefore award any compensation for this head of claim.

8.	(C.)  Interest

The tribunal concluded that interest should be awarded on the figure for injury to feelings and has taken the effective date of termination of employment being 4 October 2002 as the point from which interest should be calculated as being the conclusion of the course of discriminatory conduct to which the claimant was subjected.

Calculation

(a)	Injury to feelings			-	£10,000.00

(b)	Interest from 4 October 2002 to
8 September 2006 			-	£   3,077.26

(c)	Total award (a + b) 			-	£13,077.26

9.	Total Award including Unfair Dismissal 			-		£10,986.47
	Plus								-		£13,077.26
	TOTAL							-		£24,064.73

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

Chairman:

Date and place of hearing:	19-23 September 2005, 
					7-11 November 2005 and
					19-20 January 2006 all Belfast.		

Date decision recorded in register and issued to parties: