FAIR EMPLOYMENT TRIBUNAL

CASE REF:	417/99FET
04263/99D
04264/99UD
04265/99BC

APPLICANT:	William McCormick

RESPONDENT:	Boxmore Plastics Limited 

DECISION
The unanimous decision of the Tribunal is that:-
(i)	the applicant’s complaint of unlawful discrimination on the grounds of religious belief/political opinion is hereby dismissed it having been withdrawn by the applicant;
(ii)	the applicant’s complaints of unfair dismissal and breach of contract are dismissed; and 
(iii)	the applicant’s complaint of unlawful discrimination on the ground of his disability is allowed and the tribunal orders the respondent to pay to the applicant the sum of 
£ 5,441 compensation.

Appearances:
The applicant was represented by Mr D Fahy, Barrister-at-Law, instructed by Madden & Finucane, Solicitors.
The respondent was represented by Mr S Crothers, Solicitor of Brangam Bagnall & Company, Solicitors.

1.	The applicant was employed by the respondent as production operative from November 1996 until 13 August 1999 when he resigned.  He is deaf.  The respondent engaged the services of an interpreter at his initial interview and for his induction into the company.  Thereafter the respondent and its employees communicated with the applicant by way of speech, gesture and writing and the applicant communicated with them by way of some limited speech, lip-reading, gesture and writing.  The only arrangements made to facilitate the applicant at staff meetings or brainstorming sessions or at meetings of the whole workforce were that the trade union representative or occasionally Mr Doone, the respondent’s production manager, would sit beside the applicant and try to explain things to him.  Even when it was discovered that the applicant had difficulty lifting heavy objects and he was interviewed by Mr Whittaker, the respondent’s Human Resource Manager about this no additional facilities were arranged to ensure adequate communication despite the fact that Mr Whittaker had it in mind that the applicant’s failure to include this difficulty on his job application could lead to his dismissal.  

2.	The applicant claimed that a number of incidents occurred over the period of his employment which he considered were not properly investigated by the respondent and he maintained that the respondent’s failure to properly investigate and deal with these matters caused him to leave his employment in August 1999 by giving one week’s notice.  In addition the applicant alleged that the failure of the respondent to make reasonable adjustments to accommodate his deafness constituted unlawful discrimination against him on the grounds of his disability.  The respondent denied that the applicant’s deafness amounted to a disability within the meaning of the Disability Discrimination Act 1995 until after lunch on the second day of hearing.  At that point it was conceded by the respondent that the applicant had a disability.

3.	The incidents of which the applicant complained were:-

(1)	The stealing of a cap early in his employment which he maintained he reported to both James Moulden (the night supervisor) and Eamon Doone and nothing was done.  Both Mr Moulden and Mr Doone denied being made aware of the loss of the cap.

(2)	In July 1998 the applicant alleged he was physically assaulted by another member of staff by being hit in the back and that after the twelfth holiday Mr Doone told him that the person who had assaulted him had been dismissed.  Mr Doone maintained he knew nothing about the applicant being assaulted and that no one was dismissed or disciplined around that time.

(3)	In 1999 the applicant maintained he had been struck on the face by pieces of plastic and that he reported this to a union representative whose name he did not know.  Mr Doone maintained he knew nothing of this incident.

(4)	Some time in 1999 the applicant maintained water had been thrown over him in a toilet cubicle.  He immediately told Mr Doone.  Mr Doone accepted that the applicant had told him about this incident.  Mr Doone maintained however that the applicant did not appear to be wet nor was the floor in the toilet wet when he inspected it.  

(5)	In July 1999 the applicant told some fellow workers that his daughter’s car had been stolen.  He maintained that subsequently a notice about this was put up in the factory.  The applicant found this notice hurtful and removed it.  When the poster/notice reappeared again he took it down and tore it up.  He told Mr Doone about this incident.  Mr Doone did not do anything about this because the applicant was not able to produce either the notice or the torn-up bits of the notice.  

4.	Shortly after the incident with the notice the applicant decided to leave his employment and gave one week’s notice.  He told Mr Doone and Mr Whittaker that he was leaving to take a job in RFD which was closer to home and would pay him more money.  The applicant told the tribunal that he had made this up to cover his departure.  He has not worked again nor sought work again and has been in receipt of Incapacity Benefit since 1999.  

5.	In summing up Mr Crothers questioned the applicant’s credibility.  He pointed out that the applicant claimed in his Originating Application to the Tribunal that he was profoundly deaf whereas on his job application he indicated that he was partly deaf and could communicate with hearing and deaf people.  He also pointed out that the applicant had failed to indicate on his job application that he had had a serious previous accident.  He pointed out that the applicant’s General Practitioner’s notes indicated ongoing treatment for this accident, largely related to neck pain.  In this regard Mr Crothers also pointed to the different versions of the accident which the applicant had allegedly recounted to Mr Whittaker.  Mr Crothers also suggested that the respondent had bent over backwards to assist the applicant and had moved him to a lighter job despite the falsification on his application form.

6.	With regard to the incidents about which the applicant complains Mr Crothers pointed out that the respondent was to this day unaware of the assault or the person who was alleged to have committed it.  He also pointed out that no one was dismissed around that time.  Mr Crothers also pointed out the contradictory evidence about the lost cap where in the replies to further particulars the applicant indicated that he had told Mr Doone about this whereas in his evidence to the Tribunal he maintained that he had told Mr Moulden.  With regard to the water-throwing incident in the toilet Mr Doone investigated this but could see no evidence of water spillage.  Mr Crothers also pointed out that even when the applicant had given his notice and knew he was leaving he did not mention any of the complaints which he now raises before the Tribunal to either Mr Doone or Mr Whittaker.  

7.	Mr Crothers also maintained that the matter of the poster about the stolen car and any alleged failing with regard to investigating and dealing with that matter was not such as would lead anyone to leave their employment on the basis of a breakdown of trust and confidence.  

8.	With regard to the question of whether the respondent had made reasonable adjustments under Section 6 of the Disability Discrimination Act Mr Crothers suggested that the respondent had complied with this duty by having in an interpreter at the interview and for the applicant’s induction.  He pointed to the belief of Mr Whittaker and Mr Doone that they could communicate well with the applicant and that he could make himself understood by them.  He also pointed out that any staff meetings were supplemented by simple slide presentations.  Mr Crothers suggested that the applicant had never been subjected to a disadvantage because of his deafness and that any such disadvantage could not be regarded as substantial.  He pointed out that the applicant had not complained about any difficulties with regard to communication and he also pointed out that the applicant was prepared to challenge the respondent with regard to their failure to upgrade his money after the normal probationary period.  In all the circumstances Mr Crothers suggested it would not have been reasonable to have a signer present all the time to assist the applicant and he therefore suggested that no further reasonable adjustment needed to be made in all the circumstances of the case.  He maintained that it would be improper to consider that the applicant had left his employment because of his disability.

9.	Mr Fahy maintained that the applicant had been constructively dismissed because there had been a breach of contract which entitled the employee to terminate his employment forthwith because of the breach of an implied term of the contract that the respondent should behave reasonably.  In this regard Mr Fahy referred the tribunal to Harvey on Industrial Relations and Employment Law Division D at 429.  He suggested that the respondent’s refusal to investigate the complaints made by the applicant promptly and reasonably fell within this category.  With regard to the disability aspect of the case Mr Fahy suggested that there was a fundamental lack of understanding by the respondent of the applicant’s hearing disability and he suggested that given this disability the failure to properly investigate the incidents complained of gave rise to a breach.  Mr Fahy produced an agreed schedule of loss with regard to loss sustained by the applicant as a result of the unfair dismissal aspect of the case.

10.	With regard to the complaint of disadvantage on the grounds of disability Mr Fahy maintained that the respondent had a responsibility to make reasonable adjustments under Section 6 of the Disability Discrimination Act 1995.  He pointed out that the respondent’s evidence was that in fact no adjustments had been made to accommodate the applicant’s deafness.  He suggested that the applicant was at substantial disadvantage in not having adjustments such as the provision of a signer or interpreter at specific points in the applicant’s employment.  He suggested that the applicant was at a substantial disadvantage at meetings held by the employer and that this effectively excluded him from the internal workings of the employer.  He also pointed out that Mr Whittaker was aware that financial assistance was available to the employer to facilitate the use of a signer or interpreter from time to time.  

11.	Mr Fahy maintained that the applicant had suffered substantial injury to his feelings in the respondent’s failure to make reasonable adjustments and that this was aggravated by the respondent denial until lunchtime on the second day of hearing that the applicant had a disability.  He suggested that this demonstrated a marked lack of sensitivity on behalf of the respondent.  He suggested that it was obvious that the applicant’s ability to understand and communicate effectively required him to give his evidence to the Tribunal through an interpreter.  Mr Fahy also pointed out that the respondent had received copies of the applicant’s General Practitioner’s notes considerably in advance of the hearing which notes were clearly marked “patient is deaf”.  He suggested that in the circumstances the respondent’s querying of the applicant’s disability was totally unreasonable.  

12.	The Tribunal considers that the respondent’s witnesses underestimated the extent of the disadvantage which his deafness caused the applicant and overestimated their and his ability to communicate effectively.  The Tribunal considers that this is borne out by the differing versions given to the Tribunal of the car accident which the applicant recounted to Mr Whittaker which caused him to have difficulty in lifting heavy objects and also the diametrically different versions given to the tribunal by the applicant and Mr Doone of the alleged assault on the applicant in 1998.  The Tribunal also considers that the respondent totally failed to consult with the applicant in a meaningful way about the affect of his deafness on his ability to carry out his normal day to day activities.  The Tribunal was satisfied that the applicant’s deafness had a substantial and long term adverse effect on his ability to carry out the normal day to day activity of communication, not just at work but also at home and with such normal activities as consulting his General Practitioner.

13.	The Tribunal considered that the respondent’s lack of comprehension of the extent of the applicant’s disability led the respondent to fail to consider whether any adjustments needed to be made to ensure that the applicant was not placed at a substantial disadvantage.  The Tribunal accepted that basic communication on a one to one basis between the applicant and the respondent’s employees was reasonably satisfactory considering his disability and for the most part did not appear to cause the applicant to be at a particular disadvantage.  However, the applicant was clearly disadvantaged when it came to staff or departmental meetings where six to ten persons could be present and contributing to the discussions and also at the quarterly meetings of the whole workforce which were sometimes addressed by the Managing Director when no interpreter was present at either type of meeting to assist him and the only extra assistance which was not provided on account of the applicant was the use of an overhead projector.  The Tribunal also considered that the failure of the respondent to provide an interpreter when the applicant was interviewed by Mr Whittaker about his inability to lift at what could have been regarded as the start of a disciplinary process put him at a severe disadvantage.  

14.	The Tribunal did not accept the argument put forward on behalf of the respondent that a single visit from a disablement officer from the Training and Employment Agency not long after the applicant started his employment was sufficient to permit them to conclude that no adjustments were required.  Nor should such a visit have precluded the respondent’s witnesses from thinking proactively as to how best to accommodate the applicant’s disability and ensure he was not at a disadvantage.  The respondent’s witnesses clearly failed to do so in relation to the ongoing meetings held in the factory and in the circumstances set out above the Tribunal is satisfied that the respondent failed to both consider and make reasonable adjustments throughout the applicant’s employment to prevent him being under a substantial disadvantage.  

15.	With regard to the allegation of unfair dismissal and breach of contract the Tribunal did not accept that the applicant had proved that the respondent’s conduct in the alleged failure to investigate or take action over the incidents complained of was such a fundamental breach of trust and confidence as to entitle the applicant to leave his employment.  The Tribunal was satisfied that none of the incidents, either separately or cumulatively, were sufficient to entitle the applicant to regard himself as constructively dismissed.  

16.	The cap incident whether reported or not was trivial, the alleged assault was not reported to management, the throwing of plastic pieces was not reported to management and the water in the toilet incident was investigated and found unsubstantiated.  The final incident of the notice about the stolen car in the canteen while reported to Mr Doone was not taken any further by Mr Doone not unreasonably in the Tribunal’s view in the absence of the notice itself or even the production of the torn up bits of it, and certainly not a failure which justified the applicant leaving his employment.  

17.	The Tribunal concluded that the respondent had unlawfully discriminated against the applicant by not making the reasonable adjustment of providing an interpreter from time to time to prevent the applicant being under a substantial disadvantage during the course of departmental and company meetings and at a meeting which could have had disciplinary consequences.  The Tribunal accepts that the applicant felt isolated particularly at these departmental company meetings and that he felt he was not being afforded the opportunity to really understand the information being imparted.  He accepted however that for the most part he had enjoyed the time he worked with the respondent.

18.	The applicant became anxious and depressed after he left the respondent’s employment and was treated by his General Practitioner for this for six months.  The Tribunal concluded that the injury to feelings sustained by the applicant as a result of the failure of the respondent to make the adjustments referred to above came within the lower band and measure this at £3,000.  The Tribunal is satisfied that the respondent’s refusal to admit that the applicant’s deafness amounted to a disability was unreasonable in all the circumstances and the Tribunal increase the amount awarded for injury to feelings by £750 to reflect this.  

19.	As the applicant has not attempted to find other work and has been in receipt of Incapacity Benefit and other benefits since he left the respondent’s employment the tribunal did not consider it appropriate to make any award for loss of earnings.  For the purposes of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (NI) 1996 the Tribunal consider that the first act of discrimination occurred within the first month of the applicant’s employment when the applicant attended his first staff or departmental meeting and so the Tribunal places this at 5 January 1997.  The calculation date is 12 September 2002.

20.	The tribunal therefore calculates the amount of compensation to be awarded as follows:-

Injury to feelings							£3,750

Interest @ 8% from 5 January 1997 to 12 September 2002 		£1,691

Total Award								£5,441

21.	In addition this decision is subject to the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

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Date and place of hearing:  5, 6 and 7 August 2002, Belfast

Date decision recorded in register and issued to parties: