THE INDUSTRIAL TRIBUNALS

CASE REFS:   2022/12
1294/13

CLAIMANT:			James Wilton

RESPONDENT:		Bombardier Aerospace Shorts Plc

DECISION
The unanimous decision of the tribunal is that all claims of unlawful discrimination contrary to the Disability Discrimination Act 1995 are dismissed.

Constitution of Tribunal:
Vice President:		Mr N Kelly
Members:			Mr F Murtagh
				Mr J Barbour 

Appearances:
The claimant was represented by Mr P Boyle, Barrister-at-Law, instructed by Millar McCall Wylie, Solicitors.
The respondent was represented by Mr P Bloch of the Engineering Employers Federation Northern Ireland. 

Background

1.	The claimant was first employed by the respondent in 1991 and remains in the respondent’s employment.

2.	It was not in dispute that the claimant was disabled for the purposes of the 1995 Act at all relevant times with back and ankle pain.  

3.	The claimant had been first employed in the security department of the respondent company.  That department was privatised and he transferred to the Stores Department in April 2010.  After one week he went on sick leave.  The claimant returned briefly to another post which he felt was not suitable.  He went back on long term sick leave.

4.	The claimant lodged a tribunal claim alleging breaches of the 1995 Act (not either of the present claims), Case Reference No:  887/11, on 3 April 2011.  At that point the claimant was still on long term sick leave.  While the claimant remained on long term sick leave, that claim was heard over two days on 21 and 22 November 2011 and was dismissed by the tribunal in a written unanimous decision on 14 February 2012.  

5.	Following that tribunal hearing, the claimant returned from sick leave to work on 13 February 2012.  He commenced in a ‘picking’ role in the Stores Department, fulfilling orders for parts requested by other sections of the respondent company.  Subsequently he acted up to a ‘helpdesk’ role from January 2013 to the end of March 2013.  He applied for two permanent posts including the helpdesk post and was not successful.  He then commenced work in a ‘kit auditing’ post on 11 April 2013.  

6.	The parties agreed that the two issues arising from the present two claims for determination by the tribunal were:-

(i)	Whether the respondent had been in breach of its obligation to provide reasonable adjustments under the 1995 Act?

(ii)	Whether the respondent had victimised the claimant contrary to the 1995 Act?

Relevant law

Victimisation

7.	As the Court of Appeal stated in Rice  v  McEvoy [2011] NICA 9 when it remitted a claim of unlawful victimisation for complete re-hearing:-

“In order to establish that discrimination by way of victimisation has occurred –

(a)	circumstances relevant for the purposes of the provision of the Order must apply; 

(b)	the alleged discriminator must have treated the person allegedly victimised less favourably than in those circumstances he treats or would treat other persons in similar circumstances (‘the less favourable treatment issue’); and

(c)	he must have done so by reason of the fact that the person victimised has done one of the protected acts (‘the reason why issue’).”

8.	In Paragraph 33 of its decision, the Court stated:-

“In determining the reason why issue, it is necessary for the tribunal to consider the employer’s mental processes, conscious and unconscious.  If on such consideration it appears that a protected act had a significant influence on the outcome, victimisation is established.  (See Lord Nicholls in Nagarajan  v  London Regional Transport [1999] IRLR 572 at 575, 576.)  The question is why did the alleged discriminator act as he did?  What consciously or unconsciously was his reason?  Unlike causation this is a subjective test.”

9.	The burden of proof provisions which apply to other areas of discrimination law also apply to claims of victimisation.  A claimant in a discrimination claim must prove facts upon which the tribunal could reasonably infer, in the absence of an adequate explanation, that the respondent had unlawfully discriminated against the claimant (in this case unlawfully victimised the claimant).  In other words, the claimant must establish a prima facie case before the burden of proof shifts to the respondent and the respondent then has to provide a satisfactory explanation.

10.	Reasonable adjustments duty

	Section 4A of the Act provides:-

			“(1)	Where –

(a)	any 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 have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

11.	Section 17A(1) of the Act provides that where a claimant proves facts from which the tribunal could, apart from that sub-section, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act.  The EAT in Tarbuck  v  Sainsbury’s Supermarkets Ltd [2006] IRLR 664 suggested that in a reasonable adjustments case, the burden of proof will shift to the respondent employer if an adjustment could reasonably have been made and it would then be up to the employer to show why it had not been made. 

12.	The Employment Appeal Tribunal in the case of Project Management Institute  v  Latif [2007] IRLR 579, when dealing with a reasonable adjustment case concluded that:-

		“The paragraph in the DRC’s Code is correct.  The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably have been inferred, absent an explanation, that it has been breached.  Demonstrating that there is an arrangement causing substantial disadvantage envisages the duty but it provides no basis on which it could properly be inferred that there is a breach of that duty.  There must be evidence of some apparently reasonable adjustment which could be made.  That is not to say that in every case the claimant would have to provide the detailed adjustment that would need to be made before the burden would shift.  It would, however, be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could be reasonably be achieved or not.”

13.	The Code of Practice issued by the Equality Commission provides at Paragraph 5.8 that the duty to make reasonable adjustment applies to contractual arrangements and working conditions.  Paragraph 5.11 states that substantial disadvantages are those which are not minor or trivial.  

Burden of proof

14.	The statutory changes, introduced to give effect to EC Council Directive 97/80 and Council Directive 2000/78/AC, were analysed by the I Court of Appeal in the case of Igen  v  Wong [2005] EWCA 142 and guidance for tribunals was set out in a series of 13 numbered paragraphs in that decision.  The Northern Ireland Court of Appeal in McDonagh and Others  v  Royal Hotel [2007] NICA 3, confirmed that that guidance can be applied to all forms of discrimination and stated:-

		“For the purposes of the present case the first question that the judge should have articulated was, ‘have the plaintiffs proved on the balance of probabilities, facts from which I could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against them?’”

	Those guidelines were revisited and affirmed by the I Court of Appeal in the case of Madarassy  v  Nomura International Plc [2007] EWCA CIB 33 on 26 January 2007.  At Paragraph 12 in that decision, the court stated:-

		“I do not underestimate the significance of the burden of proof in discrimination cases.  There is probably no other area of civil law in which the burden of proof plays a larger part than in discrimination cases.  Arguments on the burden of proof surface in almost every case.  The factual content of the cases does not simply involve testing the credibility of witnesses and contested issues of fact.  Most cases turn on the accumulation of multiple findings of primary fact, on which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts.  It is vital that, as far as possible, the law on the burden of proof applied by the fact-finding bodies is clear and certain.  The guidance in          Igen v Wong meets these criteria.  It does not need to be amended to make it work better.”

	The court went on to say at Paragraph 54 that:-

	“I am unable to agree with Mr Allen’s contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing the facts of the difference in status and the difference in the treatment of her.”

	At Paragraph 56, the court continued:-

	“The court in Igen  v  Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent “could have” committed an unlawful act of discrimination.  The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination.  They are not, without more, sufficient material from which the tribunal ‘could conclude’ that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination.”

	At Paragraph 57, the court continued:-

		“‘Could conclude’ in Section 63a(2) must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it.  This would include evidence adduced by the claimant in support of the allegation of sex discrimination such as evidence of the difference of status, a difference in treatment and the reason for the differential treatment.  It would also include evidence adduced by the respondent contesting the complaint.”

Procedure

15.	This was a case which had been case managed in advance of the substantive hearing.  At the Case Management Discussion on 5 November 2013, the parties were directed to exchange witness statements.  Those witness statements were to contain the entire evidence of the witnesses, including that of the claimant, in relation to both liability and remedy.  Each witness in turn was sworn or affirmed, identified their statement and adopted it as their evidence-in-chief.  They then moved immediately to cross-examination and re-examination.  The tribunal read a witness statement from the claimant.  No other witness was called on his behalf.  The respondent presented witness statements from Sharon Norman, Debbie Miskelly, Billy Montgomery, Philip Buchanan, Rory Galway and Paul Cunningham.  It was agreed between the parties that the statements of Sharon Norman and Philip Buchanan were entered into evidence by consent and those witnesses were not sworn or cross-examined.

16.	The case was listed for 19 May 2014 to 23 May 2014.  In the event concluded at lunchtime on 21 May 2014.  The tribunal panel then met in the afternoon of 21 May to review the evidence and to reach this decision.  

Credibility of the claimant

17.	After hearing the evidence of all parties and, in particular, after listening to the            cross-examination of the claimant, the tribunal has concluded that it has serious concerns about the claimant’s credibility.  It is therefore appropriate to set out these concerns at this point in the decision before moving to relevant findings of fact, which will necessarily involve addressing several conflicts of evidence.

18	The claimant in his sworn witness statement, which he had adopted as his evidence in chief, stated that he had withdrawn his earlier tribunal claim number 887/11 in response to an ‘undertaking’ that he would be returned to an ASN post.  This evidence was clear and did not allow for any reasonable misunderstanding or confusion on the part of the claimant.  The claimant’s witness statement stated:-

“8.	The case was heard on 21 and 22 November 2011.  On the first day of the hearing Rory Galway of the respondent indicated that the ‘ASN project’ was suitable employment and there would be sufficient work for me on my return from sick leave and the respondent would honour this undertaking.  It was my understanding given in open tribunal that the suitable employment would encompass the following:-

				(i)	sufficient workload;

				(ii)	would be suited;

				(iii)	it would not be manual;

				(iv)	convenient parking would be provided;

(v)	if the post ended I would be retrained and placed in another suitable position.  

9.	On the basis of this undertaking being provided I withdrew my claim.”

19.	Mr Boyle, in his arguments on behalf of the claimant urged strenuously that the respondent company had breached this undertaking and that this was a serious matter which the tribunal had to address.  

20.	The evidence given by the claimant in this respect is simply unbelievable.  The tribunal spent some time anxiously considering whether the claimant could possibly have been genuinely mistaken about the manner in which this earlier tribunal claim had ended and therefore whether his statement had been an honest attempt to put forward the facts.  After that consideration, the tribunal has concluded that there was no room for a genuine mistake on the part of the claimant.  The claimant’s evidence in respect of the termination of the claim, Case Reference No:  887/11, was deliberately false.

21.	The claim, Case Reference No:  887/11, was not withdrawn by the claimant.  It proceeded to a two day contested hearing.  The decision of the tribunal was reserved and the claim was dismissed by a unanimous written decision issued later.  That written decision issued to the claimant.  It contained no mention of a withdrawal.  When the claimant was asked in the present hearing why Mr Kinney, the Chairman at the earlier hearing, would have written a decision when he maintained that the claim had at that stage been withdrawn, the claimant stated: “You would have to ask him”.  Mr Galway’s notes at the earlier hearing have not been rebutted and we accept them as correct.  These notes record that at the end of the hearing, Mr Kinney (now His Honour Judge Kinney) stated ‘would provide written decision – number of weeks’.  The claimant had also applied to review the written decision in Case Reference No:  887/11 on the basis ‘that new evidence has become available which could not have been available at the time of the hearing’.  The application to review that decision did not ask why a decision was issued in a case that had already been withdrawn; it simply sought to overturn that decision.

22.	The claimant was referred in the course of cross-examination in the present hearing to his clear statement in paragraph 9 of his witness statement and to the tribunal’s decision in Case Reference No:  887/11.  The claimant was asked whether it was correct that he had not withdrawn the earlier claim.  His response to that line of questioning was evasive.  He stated “not according to this (the tribunal’s decision).  I believe I had withdrawn my case and accepted the undertakings given”.

	The claimant went on to state in the present hearing that it was “not fair to say I am confused about it” and that “I remember correctly what was said”.  When it was put to him that he had not withdrawn the earlier claim, his response was, “I did”.

	Although it was not an argument advanced by the claimant, the tribunal considered whether the claimant might have been confused by his decision in the earlier case to proceed only in relation to an alleged failure to make reasonable adjustments.  However, the claimant made it plain in cross-examination that this decision was made at the start of the proceedings.  The hearing of the contested claim continued for two days thereafter.  There is no way the claimant could have believed that he had withdrawn his claim.

	The tribunal concludes that this evidence from the claimant was deliberately false.  The claimant knew that he had not withdrawn the earlier claim, Case Reference No:  887/11.  He could not have been unaware of that fact.  The claimant’s witness statement did not say that part of the claim only had been withdrawn; ie the claim of direct or disability-related discrimination.  The statement alleged the claim had been withdrawn, and that could only have been withdrawn in its entirety, in response to an ‘undertaking’.  It was clear from the claimant’s responses to cross-examination that he was still trying to maintain that he had withdrawn the entire claim.

23.	It is clear that in the course of the earlier hearing a Mr John Ritchie, a manager of the respondent, had indicated in the course of his evidence that a new post in ASN was available.  It is equally clear that during that hearing Mr Bloch had indicated that the respondent would attempt to provide the claimant with suitable work.  The claimant was at that stage on long term sick leave and the respondent was attempting to arrange his return to work.  There was no promise of a particular ASN post as now alleged by the claimant in his statement and in the course of his cross-examination.  The decision of the earlier hearing does not refer to any such undertaking or promise, in relation to a specific post, or indeed at all.  The application for review of the decision in Case Reference No:  887/11 does not mention an undertaking in respect of the particular post in ASN, even though the review application was prepared by the claimant shortly after the tribunal’s written decision.  That review application referred only to a general undertaking to find the claimant suitable employment and not to an undertaking or promise in relation to a particular post.  

24.	The tribunal has again considered whether this could have been a genuine misunderstanding of the undertaking, promise or indication given by the respondent during the course of the earlier hearing.  The tribunal concludes that such a genuine misunderstanding was highly unlikely.  The ASN post was not raised by the claimant in a meeting on 6 February 2012 after the earlier tribunal hearing and it was not raised by the claimant on his return to work in the respondent company on 13 February 2012.  If there had indeed been an undertaking, promise or indication on behalf of the respondent in relation to a particular post, and if the respondent had failed to honour that undertaking, indication or promise, the tribunal concludes that the claimant would have raised that through internal grievances or in his application for a review of the tribunal decision in February 2012.  Mr Boyle in his final submission on behalf of the claimant argued that if the tribunal concluded that a specific undertaking had been given in the earlier hearing to provide the claimant with a particular post, then that undertaking had not been honoured and that it therefore ill behoved the respondent not to provide an explanation of why it was not honoured.  The claimant therefore maintained consistently from his witness statement, though to his cross-examination and ultimately to his final submission that there has been an undertaking in relation to a particular post in ASN.  

	The tribunal concludes that such an undertaking in those terms was not given in the course of that hearing and that no formal undertaking was given at all.  The claimant did not raise such an undertaking in his application for review.  That application for a review referred to a statement from the respondent that ‘my job was still there’ and then to an ‘undertaking to have me back to work within one or two weeks”.  There is no reference to a new ASN post or to any specific post other than ‘my job’.  He did not raise it on either 6 February 2012 or on 13 February 2012, and the claimant commenced different employment on 13 February 2012.  It is also notable that the claimant’s solicitor did not suggest in his grievance letter of 30 July 2012, compiled on the specific instructions of the claimant, that any undertaking had been given in relation to a particular post in the earlier hearing.  It is perhaps also notable that the claimant’s solicitors in that same letter of grievance did not raise the current allegation that he had withdrawn the earlier claim in response to an undertaking.  

25.	Another issue which raises specific concerns about the credibility of the claimant is his evidence in relation to the two meetings on 6 February 2012 and 13 February 2012.  He alleged that there had been a discussion in the earlier meeting about a helpdesk role in Aerofast (the Stores Department) and that crucially he had been promised that role by Ms Miskelly in the course of that meeting.  That evidence is simply not credible.  It is clear that this particular post was being newly considered as a result of internal re-organisation.  At that stage in February 2012 it had not been approved by either HR or by the trade union and that discussions about the appropriate banding and pay for that post, if it were to be approved, were still continuing.  It is therefore highly improbable that Ms Miskelly would have offered that post to the claimant in the course of their meeting on 6 February 2012 when, apart from the fact that there was no guarantee that the post would exist, the grading and pay of the post had not been determined and could well have been significantly above that of the claimant.  The claimant also alleged that on attending the respondent’s premises on 13 February 2012 to start work in what he allegedly believed was a promised role at the helpdesk, he was told that he could not undertake that role until he had specific IT training and that in the meantime he would have to return to a picking role in Stores.  It is highly unlikely that the claimant would have meekly accepted not only that an undertaking in respect of a particular ASN post had allegedly not been honoured but that an alternative post, the helpdesk post, which had allegedly been offered to him on 6 February 2012, was also not honoured.  His evidence in relation to these two meetings on 6 and 13 February 2012 is directly contradicted by the evidence of Ms Miskelly and Mr Cunningham.  That evidence is preferred by the tribunal.  It was clear and consistent.  While there may well have been some form of discussion at some point about a helpdesk role being possibly being in play at some point in the future, it is highly improbable that any such role would have been offered on 6 February 2012, or that it would have been reoffered on 13 February 2012 subject to re-training alone.  

26.	Another significant evidential issue which causes the tribunal to have real concerns about the claimant’s credibility is that the claimant alleged that, during his kit auditing role, Ms Miskelly had instructed him to favour orders for parts to Montreal and to neglect orders for parts to the local production lines.  That evidence was directly contradicted again by Ms Miskelly.  The evidence of the claimant in this respect is that Ms Miskelly, who was at that stage a probationary manager, issued an instruction to neglect the production lines in Belfast.  Such a course of action would have left herself open to substantial criticism and indeed to significantly more criticism than any that might have fallen to the claimant.  The claimant alleged that Ms Miskelly did this simply to victimise the claimant for his earlier claim and “to make him look bad” in relation to a subsequent competition for a permanent helpdesk post.  That evidence is simply not credible.  If this evidence were to be believed, it would require that there had been an elaborate conspiracy on the part of Ms Miskelly which would have exposed her, as the responsible manager and during her period of probation, to significant criticism.  Furthermore, Ms Miskelly at this stage did not know until shortly before Easter 2013 that the helpdesk post was going to be made permanent.  Therefore she would not have known that there would have been a competition for the post and she would not have known that the claimant would take part in that competition.  While she had at that stage asked for the temporary post to be made permanent, it was not a matter of which Ms Miskelly would have been certain.  It is highly improbable that in those circumstances, Ms Miskelly would have mounted such a conspiracy to victimise the claimant just in case the post was eventually made permanent and in case there was a competition in which the claimant took part.  It would have required a deep rooted antipathy on the part of   Ms Miskelly against the claimant.  That is inconsistent with his period of acting-up in this role on a temporary basis.  The tribunal prefers the clear and consistent evidence of Ms Miskelly in this respect.

27	For the reasons set out above the tribunal concludes that the claimant’s evidence lacks any credibility.  It is not simply the case, as counsel for the claimant has urged, that the claimant was a poor historian.  The claimant appears to have had scant regard to the truth throughout these proceedings.            

Relevant findings of fact 

28.	The claimant had originally been employed by the respondent company in an         in-house security department from 1991 to 2010.  That in-house security department was due to be outsourced and consequently the claimant was transferred in 2010 to stores job.  He went on sick leave, returning briefly to an ASN post which according to his witness statement he regarded as not suitable, and then returning to long term sick leave.  

29.	The claimant issued a tribunal claim, Case Reference No:  887/11, on 3 April 2011 alleging disability discrimination.  The tribunal recorded in its decision on that claim that there had been several Case Management Discussions at which the relevant issues had been refined to an allegation of a failure to make reasonable adjustments and an allegation of direct or disability related discrimination compared to other security employees who had been transferred under TUPE.  At the hearing of this earlier claim, the claimant had elected to proceed only in relation to the allegation of a failure to make reasonable adjustments contrary to the 1995 Act.  Those reasonable adjustments were recorded in the decision as the provision of a suitable chair and suitable car parking.  The claimant sought to argue in the course of the present tribunal that he had not been arguing for a suitable chair during the earlier tribunal claim but for a ‘suitable seating position’.  He asserted in                  cross-examination that the Chairman at the earlier claim had been ‘incorrect’ to refer to the provision of a chair.  It is unclear what point the claimant was trying to make in this respect.  However, the present tribunal accepts that the tribunal decision in Case Reference No:  887/11 was accurate.  It is highly unlikely that the tribunal had misconstrued the claimant’s arguments in this earlier case and that it had failed to note them properly in its reserved decision.  Furthermore, the claimant, in his application for review of that decision on 22 February 2012 did not allege, as he now alleges, that the decision was incorrect in this respect.  

30.	The tribunal hearing the earlier claim sat on 21 and 22 November 2011 and issued its written reserved decision on 14 February 2012.  This written decision was in clear terms.  The claim of disability discrimination was dismissed.  It was almost immediately followed by the claimant’s application for review on 22 February 2012.  That application for review was rejected by the tribunal on 2 May 2012 on the ground that there was no reasonable prospect of the decision being varied or revoked.

31.	This decision, ie the decision in Case Reference No:  887/11, dealing with allegations of discrimination up to 3 April 2011, cannot be re-opened even if there were any point or reason in doing so.  That matter is res judicata.  Its relevance to the present claim relates to the claimant’s credibility.  The claimant sought to maintain in his evidence, firstly, that he had withdrawn this claim, ie Case Reference No:  887/11, in response to an “undertaking” and, secondly, that this undertaking had been in relation to a particular post in ASN.  For the reasons set out above when this decision discussed the claimant’s credibility, the tribunal concludes that neither statement is correct.  

32.	The tribunal concludes on the basis of Mr Galway’s evidence and on the basis of his notes that one manager, ie Mr Ritchie, had indicated in the course of this earlier hearing that a new post in ASN was suitable and available.  It is also clear that Mr Bloch stated that the respondent would try to provide suitable employment to facilitate the claimant’s return from long term sick leave.  However, and for the reasons set out above, there is no evidence that the claimant had been offered a specific post apart from the claimant’s unsupported word.  The claimant also alleges, again without any evidence, that if that post ended that he was promised that he would then be placed in another suitable post, presumably to retirement.  It is highly improbable that any employer or manager would have given such an undertaking which amounts to an open ended commitment to not only provide the claimant with a particular post but then to maintain the claimant’s employment indefinitely.

33.	After the earlier tribunal hearing and before his return to work, the claimant was examined by the respondent’s occupational health physician, Dr Jenkinson, in accordance with normal practice where an individual proposes a return from long term sick leave.  In that report Dr Jenkinson stated:-

		“I saw Jim today for assessment.  He reports moderate to severe pain in his ankle and lower back.  Clinical assessment indicates a degree of arthritis and mechanical low back pain.  I have discussed with him his restriction and I have read your e-mail about the proposed work.  His work will need to avoid prolonged walking and standing.  Walking more than 50 metres increases the pain.  The ability to sit intermittently would be helpful.  He will have difficulty with manual handling other than very light weights.  Car parking near the site of work would be helpful and I would recommend that he restarts work on a phased basis.  In this respect it is usual to start back on half the normal hours and gradually these over a 12 week period towards normal.  Perhaps you would meet him to discuss these restrictions.  I note also in your e-mail that you talk about the provision of special seating.  I find it is more important that people can change their posture more frequently and that the provision of any particular type of seating in this respect is largely irrelevant.”

34.	This medical report clearly stated that work would need to avoid prolonged walking or standing.  It advised that he should be allowed to sit ‘intermittently’ and cautioned against walking more than 50 metres.  There is nothing in this report which suggested that he could not either walk or stand.  It does not say that the claimant had to sit all the time or even for substantial periods of time.  It does not state that he was suited only to a sedentary role.  It refers to car parking near the place of work being helpful.  It does not say anything further and it does not specify that the claimant should receive a designated parking space or indeed that a parking space should be reserved right outside the place of work or that it should be reserved at all.  It just suggests that it would be helpful if it were ‘near’.  Finally, it does not recommend particular seating.  It simply advises that the claimant should be able to change his posture regularly.  

35.	The claimant met Ms Miskelly and Mr Cunningham on 6 February 2013.  The claimant alleges that he was told at this meeting that he could start in a new post which was not the ASN post which he now alleges he had been promised in the earlier tribunal hearing, but a helpdesk post in Stores.  He alleges that he had been told that this helpdesk post had been offered to the existing workforce and that no one had been interested in that post.  There is no evidence from the claimant to support that allegation and it is directly contradicted by Ms Miskelly and Mr Cunningham.  The claimant alleges that when he started work on the following Monday, ie 13 February 2013, he was told that he could not start the helpdesk post which he had already been promised until he had received IT training.  He alleges he was told by Ms Miskelly that he would have to return in the meantime to a picking role and that he accepted this because ‘his medical condition had vastly improved’.  Again this allegation by the claimant was directly contradicted by the evidence of Ms Miskelly.  Both Ms Miskelly and Mr Cunningham pointed out that the helpdesk post was still under consideration at that point by HR and by the trade union.  Pay and grading had not been settled.  It could not have been offered to anyone in these circumstances and it could not have been offered to the claimant as he alleges.  Whether or not the possibility of eventually being suitable for a helpdesk role had been considered for the claimant and whether or not it had been discussed to some extent, there is absolutely no evidence apart from the claimant’s unsupported word that a promise was made on either of these two dates that he would be placed in this particular post.  Given the tribunal’s findings in relation to the credibility of the claimant, the tribunal concludes that the evidence of Ms Miskelly and Mr Cunningham was correct in this respect and that no such offer was made.

36.	The claimant also alleges that he had been excluded from consideration for an initial temporary acting-up role in relation to this helpdesk post.  The tribunal prefers the evidence of Ms Miskelly that she had asked all the Grade 10 staff in Stores at the daily morning meeting whether they would be interested in this acting-up post and that only Mr Dornan had volunteered for this temporary acting-up position.  If the claimant had been deliberately excluded, as he now alleges, from this post, even on an acting-up basis, the tribunal would have no doubt that this would have provoked a storm of protest with further grievances, if not further tribunal litigation.  It did not.  Counsel for the claimant argued that an e-mail from Ms Miskelly dated 8 March 2012 to Mr Montgomery in which she said that she had asked “Aerofast B10 team members with the correct systems knowledge” was necessarily inconsistent with her clear evidence that she had asked all Aerofast B10 (Band 10) staff at the daily morning meeting.  The tribunal does not agree with this submission.  The wording seems to the tribunal to be compatible with that evidence.  The e-mail of 8 March 2012 from Ms Miskelly was a response to an earlier e-mail from Mr Cunningham to Mr Montgomery and has to be read in that context.  It said:-

“You can proceed based on the following – only asking for volunteers from B10 (Band 10) in GW as they are only group with correct systems knowledge for a period of six months to assist with resource for C Series – not going to be a permanent role.”

	There was no evidence to suggest that the reference to GW in any way excluded the claimant.  The reference to suitable experience seems to be no more than a reference to people working in that area, ie the Band 10s, including necessarily the claimant.  No evidence has been produced from the claimant, other than that laboured interpretation of Ms Miskelly’s e-mail, to support his allegation in this respect.  

37.	The tribunal concludes that the claimant was offered a picking role and that he accepted the picking role on his return on 13 February 2012.   The job requirements were consistent with the medical report put forward by Dr Jenkinson.  The claimant was allowed to come into work early to facilitate him finding a suitable parking space ahead of the normal morning rush.  He was allowed to sit down as often as he wanted.  He was allowed to take whatever rests he wished, to take whatever breaks as he wished and to move about as he wished.  All reasonable adjustments were put in place by the respondent in respect of this picking post.  

	The claimant in cross-examination complained that he was humiliated ‘by these adjustments’.  That claim does not make any sense.  The claimant cannot have it both ways; he cannot ask for adjustments and then complain that he is ‘humiliated’ when they are put in place.  Furthermore, the allegation of humiliation seems somewhat overstated.  There is no evidence that he was criticised or that any of his colleagues thought anything adverse about the claimant when he availed of these adjustments.  

	While there was an administrative hiccup in relation to the pay arrangements for the 15 minutes early start, this was promptly remedied when it was raised by the claimant.  

38.	It is important for the tribunal to remember that an employer is not required by the 1995 Act to put in place the best possible adjustments conceivable in any set of circumstances.  It is only required to put in place ‘reasonable’ adjustments.  It is not required to seek or to achieve absolute perfection.  In these circumstances the tribunal is satisfied that the respondent did enough to provide reasonable adjustments in relation to the picking post.  

39.	Next, the claimant alleges that he was singled out for making mistakes in this picking post.  The clear and unrebutted evidence of the respondent was that this particular area of operations had a target of 92% accuracy.  Everyone made mistakes.  The claimant could not point to anyone having been treated differently.  The claimant did not know who had allegedly picked on him or had singled him out for criticism.  He alleged that on one particular occasion a part that had been picked by him was left back with the mistake highlighted in writing on the label ‘with scrolls’.  It is not clear what the reference to ‘scrolls’ meant.  It was however clear that mistakes were made and that they were pointed out to any relevant employee including to the claimant.  Ms Miskelly made it plain that the claimant did not make many mistakes.  It is equally clear from the evidence that the claimant was not subjected to any form of disciplinary or other procedure in this respect.  There is no evidence on which a tribunal could draw a reasonable inference of either a failure to make reasonable adjustments or a reasonable inference of victimisation as a result of his earlier claim or as a result of any other protected act.

40.	On 27 June 2012, an appraisal form was completed when the claimant had at that stage been operating in the picking role for some four months.  There was space for comments on ‘career perspectives’ and for ‘employee comments’.  These spaces were blank and there were no comments.  It seems inconceivable that someone who now alleges that an undertaking in open tribunal had been broken, and that a promise of the helpdesk role had been broken would have been so reticent.  The claimant’s failure to raise any form of complaint at this stage is also inconsistent with the demeanour which he displayed during this tribunal hearing; that demeanour was, to say the least, assertive.

41.	On 5 July 2012, the claimant was still performing the picking role in Stores/Aerofast.  He approached Ms Miskelly who was his line manager.  As always, there is a clear conflict of evidence between the claimant and Ms Miskelly.  The claimant alleges he said that he could not continue in the picking role and that he would have to move to the helpdesk role.  He alleges that Ms Miskelly told him that he wasn’t suitable and that Mr Dornan would fill the post.  He further alleges that he heard nothing more about this conversation.  In contrast, Ms Miskelly stated that the claimant had approached her and had indicated that he was unable to perform a particular audit function and that he had not stated he was unable to perform the picking role.  He had asked for a chair and Ms Miskelly had told him that he would have a chair if he needed one.  Ms Miskelly stated that that was the first occasion on which the claimant had indicated that there were any problems with his role and that he had indeed asked to be included in the van insurance.  That would have involved some long journeys within the Belfast and Newtownards area and not just within the production areas of the respondent company.  She stated that later that same day the claimant returned and stated that he was angry and distressed and that he was going home.  She asked him whether he wanted to go to occupational health and he declined.  It is noticeable that no disciplinary action was taken against the claimant on this occasion when he left the respondent’s premises.  Ms Miskelly telephoned Mr Cunningham on 16 July 2012 and on that day Mr Cunningham met the claimant and sent him to occupational health.  Ms Miskelly was clear that the claimant had demonstrated that he would rest on his picking trolley when required and that he told her that he did not need to go in to the nearby tea room where Ms Miskelly indicated that chairs were always available.  

42.	Given the tribunal’s conclusions about the credibility of the claimant, the tribunal prefers the clear and consistent evidence of Ms Miskelly.  It is satisfied that throughout the claimant’s picking role, the claimant was allowed to rest, stand, sit or move about as he required and that he could indeed rest whenever he needed to by sitting on his picking trolley or by going to a restroom.  The parking arrangements were also reasonable.  He was not picked on or singled out for criticism.

43.	The claimant issued an internal grievance through his solicitor on 30 July 2012.  The claimant then effectively brought this grievance process to an end by insisting that not only should his solicitors lodge a grievance on his behalf but that his solicitor should attend any grievance meeting.  The claimant knew that this was not permitted in the respondent organisation.  The tribunal notes that it is generally not permitted by any employer.  Employees and employers should be able to resolve their difficulties through the assistance of trade unions or colleagues and without the intervention of the legal profession at this stage.  Lawyers have no proper role in any internal grievance system.  The tribunal concludes that the claimant deliberately sabotaged his own grievance.  There is no evidence in any of this that could ground a reasonable inference on the part of the tribunal of a failure to make reasonable adjustments or of any unlawful victimisation.

44.	The claimant lodged the first of the two present claims, Case Reference No:  2022/12, on 2 October 2012 alleging discrimination, victimisation and harassment contrary to the 1995 Act.  He also alleged a breach of an undertaking to provide suitable employment.  He did not allege as he now alleges in these proceedings in his witness statement and in his cross-examination that there had been an undertaking in relation to a particular job, ie an ASN job.  That in itself is surprising if the claimant’s evidence in this respect were to be believed.  It is even more surprising that he thought that a statutory tribunal had any jurisdiction to adjudicate on and to presumably enforce a general undertaking to find suitable employment.  It is also unclear where the word ‘undertaking’ came from.  It was not a word, even on the claimant’s own evidence, that was used in the course of the earlier tribunal proceedings.  There had been, at most, a promise or an indication that the respondent would provide suitable employment to facilitate the claimant’s return from long term sick leave.  That in fact occurred.  There was no ‘undertaking’.  The word ‘undertaking’ had its own implications for a legal representative.

	Finally the claim, Case Reference No:  2022/12, contained a claim for breach of contract which was entirely outside the tribunal’s jurisdiction, since the claimant was then, and still is, employed by this respondent. 

45.	The tribunal was referred to another incident in which the claimant walked out of work on 22 November 2012.  In evidence he alleged that he had been ‘humiliated and embarrassed’ by Ms Miskelly’s decision to remove a particular computer option from him.  That option was either used to check on the specific workload of other ‘pickers’ or to check on the total workload for ‘pickers’.  Whichever version was correct it was not an option which the claimant required for his job.  It was also removed from the other two ‘pickers’ at the same time.  This seems to the tribunal to have been a rational decision on the part of Ms Miskelly.  There is no evidence that it was directed personally at the claimant or that it was based on some protected act.  There is also no evidence, apart from the claimant’s unsupported evidence, that he was ‘humiliated and embarrassed’.  No disciplinary action was taken against the claimant because he left the respondent’s premises.

46.	In her evidence, Ms Miskelly stated that, at the end of 2012, Mr Doran who had been acting-up to the helpdesk role indicated that he no longer wished to do so for personal reasons.  The claimant argued in evidence that he believed that Mr Doran had reached this decision because the role had not been made permanent at that stage.  It does not matter to this tribunal which version of this is correct.  Either way, the respondent decided to seek a further acting-up volunteer while the question of whether or not the post was to be made permanent was considered.  Volunteers were again sought at the daily morning meeting and the claimant applied on this occasion.  He was the only volunteer and he was given the acting-up position.  He acted up in that role for approximately three months.

47.	The claimant, despite being given this advantage, alleges that he continued to be discriminated against and victimised by the respondent contrary to the 1995 Act.  His duties in this post were to respond promptly to orders for parts from either individuals in Montreal or from individuals within the production area in Belfast.  The post was therefore the sort of post which required an actual presence and was not suitable for flexi time arrangements.  The claimant had previously enjoyed flexi time arrangements in his picking role.  The claimant knew that those arrangements would not be suitable to the acting-up role.  No one forced him to apply for or to accept the acting-up role.  It was common sense that individuals waiting for the immediate dispatch of parts should not be required to accommodate anyone else’s flexi time.  Despite this the claimant alleges that the failure to offer him flexi time was in some way unlawful.  There is nothing here in which a tribunal could draw a reasonable inference of a failure to make reasonable adjustment or a reasonable inference of unlawful victimisation.

48.	The claimant also alleges that he was given an instruction by Ms Miskelly to favour orders from Montreal and to neglect orders from the local production lines, including one production line for the flagship C series aeroplane.  For the reasons outlined earlier in relation to the claimant’s credibility, the tribunal concludes that this allegation is simply untruthful.  It contradicts the clear evidence of Ms Miskelly.  

49.	The claimant alleged that during the period in which he worked in the acting-up role, he received an instruction that he should use the main car park rather than a restricted area.  No further evidence was presented by the claimant on this point.  There was no medical evidence to suggest that the claimant should have been permitted to park in a restricted area.  There was no evidence of any sort that he was in any way prevented from obtaining a suitable car parking space.  Nothing in any of this could support a reasonable inference of unlawful discrimination or unlawful victimisation as alleged by the claimant.  

50.	At the end of the claimant’s acting-up period, in March 2013, the claimant applied for two permanent roles which had been advertised in an internal competition.  He was unsuccessful.  He did not challenge the decisions of the interview panel by way of an internal grievance.  He stated in evidence that he had been unaware he could do so.  The tribunal, given the claimant’s ability to raise complaints, grievances and litigation, does not accept that he had been unaware that he could raise a grievance in respect of these decisions.  

51.	The second claim presented before the tribunal, ie Case Reference No:  1294/13, was lodged more than three months after the results of the internal competition.  There was no claim of direct or disability-related discrimination in relation to this competition extant before the tribunal during this hearing.  It may be that there was a claim of unlawful victimisation in respect of the decisions of the interview panels.  However, there is absolutely no evidence that the interview panels were motivated or in any way influenced by the claimant’s previous claim of disability discrimination or by any other protected act.  The successful candidate for the helpdesk role was Mr Doran who had also acted up in the post in the same manner as the claimant.  There was no evidence that Mr Doran had more or less experience or more or less qualifications than the claimant and no evidence that he had performed worse at interview than the claimant.  If the claimant wishes to allege victimisation in relation to his failure to be appointed to either post (and it is by no means clear that this was the position) it is the claimant’s responsibility to establish at least a prima facie case of such victimisation.  It is not sufficient for the claimant to simply put forward a possibility of such victimisation, with no evidence at all to indicate that it had occurred, on the basis of any protected act, and no evidence at all to support the proposition that he was in any way treated unfairly.  

	The tribunal therefore concludes that it is unable to draw any reasonable inference of unlawful victimisation or indeed of any unlawful discrimination in this respect.  

52.	The claimant returned to his picking role after Easter 2013.  He immediately demanded a written description of the role.  He had already carried out this role for a substantial period of time.  The tribunal is satisfied that the claimant had no legitimate reason for this request and that the respondent was entitled to simply point out to the claimant that he had already done this job.  

53.	The tribunal has read the statement of Sharon Norman and that of Ms Miskelly.  It has also listened to the cross-examination of the witnesses, including the                   cross-examination in particular of Ms Miskelly.  The tribunal has also had the benefit of observing the demeanour of the claimant before the tribunal.  The tribunal is entirely satisfied that the claimant had been aggressive towards Ms Miskelly on 8 April 2013 in demanding unnecessary details of the picking job and that Ms Miskelly had been adversely affected by the claimant’s aggressive approach.  No disciplinary action was taken against the claimant.  

54.	Instead, the respondent found the claimant another job, ie a kit auditing job under the management of Mr Billy Montgomery.  It is a matter of some surprise to the tribunal that yet another adjustment was offered to the claimant at this point.  In any event, the claimant went on sick leave from 14 April 2013 to 22 July 2013 with a heart problem.

55.	The auditing post involved checking kits, for example, service kits, which were to contain different parts as described on a list attached to each kit.  It was a case of simply checking that the correct number of parts were included in the kit and that none were missing.  The claimant alleged that these kits could weigh up to 30 kilos.  He could produce no evidence that he had ever audited kits of such weight.  The tribunal prefers the clear evidence of Mr Montgomery that the claimant had checked only a sample of between three and five percent of such kits and that the staff who brought such kits to the claimant for checking, and who placed them on a rack four to five feet from the claimant’s table, were told to bring him only a selection of the lighter kits.  Mr Montgomery weighed these kits and concluded that these weighed between one and two kilos.  The tribunal concludes that this type of work had not been contraindicated by any medical evidence and that it was suitable for the claimant.  

56.	The claimant was required to notify the lead hand of any parts that were missing from kits.  It was not his job to go looking for any missing parts and he was instructed specifically not to do so.  He ignored this instruction and climbed two flights of stairs to look in another area for parts which were missing from service kits.  That was his choice in defiance of a clear instruction.  

It is clear that he had been given a primarily seated job (although he could stand or move around the table as required).  He still complained.  When he had earlier been given a picking job which involved more standing and walking (although he could again sit down when he wanted and take breaks when he wanted), he had still eventually complained.  When he had earlier yet been given an ASN job after the proposed outsourcing of the security function, he had complained.  The tribunal concludes that nothing by way of any reasonable adjustment, was ever going to satisfy the claimant or to avoid complaints.  

57.	There was nothing in the kit auditing job which could give rise to any reasonable inference of a failure to provide reasonable adjustments or to any reasonable inference of victimisation as a result of any protected act.  

58.	The claimant complained that he had been given a designated parking space within four hours of his return to work on 23 April 2013.  The substance of this complaint appears to be that the claimant argues that this should have been done at a much earlier stage.  The return of an employee with different health difficulties, ie with heart problems, is not necessarily comparable with the position of an employee with entirely different health difficulties.  However, in any event, it is not the tribunal’s job to require respondent employers to put in place the most generous adjustments available to it at any time.  As indicated earlier, all an employer is required to do under the 1995 Act is to put in place a reasonable adjustments.  The permitted early start and therefore preferential access to parking spaces was reasonable and sufficient.  There is absolutely no evidence that on any occasion the claimant was prevented from parking reasonably close to his place of work.  There was no evidence that on any occasion he was required to walk an excessive distance.  There is no evidence on which any tribunal could make a reasonable inference of an unlawful failure to make reasonable adjustments or indeed unlawful victimisation.

59.	The claimant further complained that he had not been given a computer in his kit auditing role.  A computer was not necessary for that role.  He was only asked to check parts in each kit against a list for each kit.  Mr Montgomery’s evidence was clear.

	Even if some use could have been found by the claimant for a computer in the kit auditing role, there is absolutely no basis for a reasonable inference of an unlawful failure to provide a reasonable adjustment or any reasonable inference of unlawful discrimination.  

60.	The claimant also complained about a comment by Mr Montgomery.  He stated that this had been a barbed remark aimed at him alone and that it was victimisation contrary to the 1995 Act.  A company survey had indicated that 10% of staff did not like working for the respondent.  That seems to suggests that 90% of employees did like working for the respondent or that they did not at least have any negative position.  That seems a remarkably high percentage.  In any event, Mr Montgomery stated that in a general meeting of staff that anyone who did not like working there ‘knew where the gate was’.  Some 15 – 20 staff were present at this meeting.  According to the claimant this remark was treated by everybody else as a joke.  He nonetheless believed that it was aimed at him alone.  There was no evidence to support this belief.  The tribunal accepts the evidence of Mr Montgomery that it had not been aimed at the claimant.  

61.	The claimant also complained that he had been criticised for retaining parts, including a part valued at between $500 and $1,000 which had been unnecessarily included in kits which he had checked.  When challenged in cross-examination he stated that he had put these parts to his lead hand but the lead hand did not know what to do with these parts.  He had put them in a box.  That explanation was not included in his witness statement and seems, on the balance of probabilities, to be unlikely.  In any event, these parts were not his property.  They had some value and on occasions some significant value.  This was particularly the case in the aircraft industry where traceability of individual parts is crucial.  The claimant had no valid reason to retain these parts.  He cannot reasonably complain of being challenged when he did in fact do so.  There is no evidence to suggest that any such challenge was unfair, unreasonable or in any way related to any protected act.  

62.	In summary, the tribunal concludes that the respondent had at all stages put in place reasonable adjustments as required by the 1995 Act and that there is no evidence supporting a prima facie case that at any stage it had failed to do so.  Furthermore, there was absolutely no evidence to support a prima facie case of any unlawful victimisation as a result of previously bringing a claim of disability discrimination or as a result any other protected act.  

63.	The respondent appears to have acted very generously towards the claimant.  The claimant on occasion had left the site without permission and on occasion had been aggressive and unreasonable.  No disciplinary action was ever taken by the respondent although the respondent could on occasion have done so.  The respondent has made extraordinary efforts to accommodate the claimant and to put in place reasonable adjustments.  Those efforts have not been recognised by the claimant.

64.	The claimant’s claims of a failure to make reasonable adjustments and of unlawful victimisation contrary to the 1995 Act are dismissed completely.

Vice President:

Date and place of hearing:	19 – 21 May 2014, Belfast 

Date decision recorded in register and issued to parties: