Winning v Belfast City Airport Ltd  (Disability Discrimination)  (9 January 2002) THE INDUSTRIAL TRIBUNALS

CASE REFS:	03202/97D, 03203/97BC, 03204/97WO
01987/98RP, 01305/00, 02704/00

APPLICANT:	David Winning

RESPONDENT:	Belfast City Airport Limited 

DECISION
The unanimous decision of the tribunal is that the applicant was unlawfully discriminated against on the grounds of his disability under the provisions of the Disability Discrimination Act 1995 and he is awarded the sum of £14,934 by way of compensation.  

Appearances:
The applicant was represented by Mr E McArdle, Barrister-at-Law, instructed by O & S Henry, Solicitors.
The respondent was represented by Mr R Murphy of Engineering Employers Federation.

1.	The facts that were common to the parties were that the applicant had worked at Belfast City Airport from 2nd May 1988 until he was dismissed on 6th October 2000.  He presented a number of claims to the tribunal which started in 1997 and related to failure to pay a discretionary sick pay entitlement for nine days, victimisation and finally unfair dismissal.  The claim for a redundancy payment and breach of contract were withdrawn.  A preliminary hearing was held in 2000 and a tribunal determined that the applicant’s condition amounted to a disability for the purposes of the Disability Discrimination Act 1995 namely that the applicant suffers from glaucoma, a progressive condition affecting both his eyes.  

Claim Number 1

	The applicant had an eye operation for a cataract in 1997.  He was on sick leave for four weeks.  It was common case that at the time the respondent had a sick pay scheme which allowed employees to take ten days on sickness at full pay.  They were then allowed to make application for a discretionary sick pay which resulted in them being paid full pay for the days they were off on sick after the “sick bank” was exhausted.  The tribunal accepted that when the applicant took a period of ten weeks absence in 1994 he made application to his manager and was paid the full amount of discretionary sick pay.  In 1997 the rules for entitlement had changed and the applicant had to appeal to a company director.  Mr Ambrose, was Operations Director and the tribunal accepted his evidence that on arrival at the airport in early 1997 he realised that the discretionary sick pay scheme was being abused.  He asked the Human Resources Department to advise him on the criteria for implementation of the discretionary scheme and he made a decision on each employee who appealed for payment.  The tribunal accepted his evidence that he considered the applicant’s history of previous absences and was aware that he had had eye operations in 1991, 1992 and 1994.  He considered whether discretionary payments had been made before and whether any disciplinary matters had been taken in respect of absence.  He did not consider whether the illness was genuine or not.  

2.	Counsel for the applicant submitted that the replies given to the applicant’s advisors shortly before the hearing commenced were at variance with the criteria set out in an answer to the Equality Commission.  The tribunal has heard the evidence of Mr Ambrose and Mrs Ferris in relation to this and is satisfied that Mrs Ferris’ answer in November 2001 included the length of service of the employee as well as the nature of the previous illnesses resulting in time off work and the gravity of the relevant illness.  The tribunal accept that Mr Ambrose did use his discretion in relation to a terminal illness and stated that the company would consider making a discretionary payment in that situation.  The tribunal considered a document which related to ten employees who had been assessed for discretionary payments in 1997.  From that document we accept that when Mr Ambrose started to consider these applications in mid 1997 he took a more robust approach than his predecessor and in two cases did not award any discretionary payment for absence and in the applicant’s case awarded three days discretion payment instead of twelve as claimed.  The applicant considered that he was being discriminated against on the grounds of his disability by having this payment withheld and he commenced proceedings to an industrial tribunal.  The tribunal has considered this case carefully and also the cases of Clarke –v- Novacold 1999 IRLR 318 and London Clubs Management –v- Hood 2001 IRLR 719.

3.	In the case of Hood the difference of facts was that the employer had decided as a matter of policy not to pay anyone sick pay.  In the present case the applicant was paid contractual sick pay entitlement and was complaining about the discretion element because he had always received full payment at any other time when he had been over the ten days sickness limit.  The tribunal accepts that Mr Ambrose came in as a new manager and had a number of issues to consider in relation to managing the new structure at the airport.  He was entitled in his role to exercise discretion in relation to discretionary sick pay and we do not find that he operated this system solely to the detriment of the applicant.  There were a number of persons who did not receive the full entitlement and it has to borne in mind that this was an additional payment – not an inherent contractual right to discretionary sick pay.  In the case of London Clubs Management Ltd –v- Hood the EAT held that the tribunal should have considered “whether the applicant was refused sick pay for a reason which related to his disability rather than whether he was not receiving pay ordinarily due for that reason”.  In the present case the tribunal, having asked that question, conclude that he was not paid a discretionary sick pay because of a number of factors which Mr Ambrose took into account for all employees who were off work at that time and not because of his disability.  He exercised his discretion, which he was entitled to do, and concluded that the applicant would get a part payment, as did other employees.  The applicant has not established that this decision was based on his disability and accordingly the claim fails.

	Case Number 2 - Victimisation 

4.	The tribunal accepted evidence from Mr Ambrose and Mrs Ferris and from the applicant himself that the company was restructuring the employment base at the airport.  The old jobs of supervisors, officers, senior officers and controllers were going.  The new structure consisted of operatives, senior operatives and team leaders.  The tribunal accepts the evidence that it was open to the applicant to apply for the post of team leader or the post of senior operative.  The tribunal accepts that the applicant decided not to apply for either of these posts and so was offered the job of operative grade 4.  The applicant stated to the tribunal that he did not wish to be interviewed or apply for a different job and it is apparent to the tribunal that he was adamant that he wished to keep his old job and not move with the changed structure.  It was common case that the applicant told the company because of his disability he should be given the job of team leader and he did not see why he had to apply for a new post.  The tribunal accept there were one to one meetings with the employees, there was consultation with the unions and all employees were given the opportunity to apply for a new post, however, some including the applicant did not wish to do so.  The case made by the applicant is that he should have been considered for a team leader’s post irrespective of whether applications were being taken or not.  In the circumstances of this case and in consideration of the fact that everyone was affected by this restructuring, the tribunal does not find that the applicant was discriminated against by not being given a post rather than applying for it, and he was not victimised.

5.	The tribunal find that the applicant was resistant to change and as a result did nothing in relation to new posts and then accepted a job as an operative at a considerably lower salary.  He continued to work in this position until his dismissal.  After the jobs had been restructured, the company embarked on tests for all its employees.  There was a total of some 200 people who were required to do tests.  The tribunal accepts these tests were designed to highlight training needs because the respondents were trying to build up a skill base at the airport and wanted to address training issues.  The applicant sat a test along with other employees and found that the concentration was too much for him so he did not finish the test.  The respondents were aware of his difficulties and they tried to accommodate the applicant with a number of variations and adjustments.  They increased the type size of the questions but that was not acceptable to the applicant.  They told the applicant that the questions could be read to him and the test could be split into sections and he could give his responses verbally.  The applicant refused to do the tests and he asked that the tests should await the outcome of the preliminary hearing to establish whether he was a disabled person.  Mrs Ferris stated that the company considered the preliminary hearing was not connected with the tests and if he was found to be disabled the company would be doing exactly the same as it had by way of adjustments and suggestions as they did after the hearing.  The applicant was suspended on full pay because he refused to do the tests.  After a period of four weeks he indicated his willingness to do the tests and adjustments were made to enable him to answer the questions.  The applicant did quite well in the tests and remained in his employment as a grade 4 operative.

6.	The applicant in his claim to the tribunal, which was presented in June 2000, stated that his suspension from employment on 28th March 2000 was victimisation and he makes reference to a pattern of discrimination, harassment and victimisation over the past number of years including an earlier suspension.  The tribunal note that counsel for the applicant in his submissions in relation to victimisation concentrated on the period after the preliminary hearing and decision given by the tribunal on 21st March 2000.  The tribunal has considered both incidents of suspension.  The first one took place in November 1999 when the applicant was the only person who refused to do the training needs test.  The company had asked every employee to do the test and they had done so, including the applicant.  Although he had given up during the test the company had made a number of practical suggestions to help the applicant overcome any difficulties.  He had steadfastly refused to consider these and said that as he had a disability he should not have to do the test and he should be returned to his old job.  The tribunal accepted this was an intransigent attitude and that it was necessary for the respondent to insist that the applicant did the test along with all the other employees.  There was a question raised by the applicant as to why the respondent could not wait until after the preliminary hearing.  The tribunal accepted Mrs Ferris’ evidence that even if the tribunal found in February 2000 that the applicant was a disabled person it would still result in the same adjustments being offered to the applicant to enable him to sit the test.  It did not mean that the applicant was going to be exempted from the test.  In these circumstances the tribunal does not find that the applicant was victimised by the respondent.  They were aware that there was a case pending and the tribunal accepts that they had offered reasonable adjustments to the applicant which he would not consider.  

7.	The second element of the claim for victimisation relates to the suspension of the applicant on full pay after the decision of the tribunal was promulgated on 21st March 2000.  The tribunal accepts that the evidence given by the applicant at the preliminary hearing came as something of a shock to the respondent.  The applicant gave evidence which gave grave cause for concern to the respondent.  Whilst they knew the applicant had some difficulty with his sight, his oral evidence at the tribunal gave rise to great concern because of the applicant’s safety and for the safety of the general public.  The applicant was working in an area with aircraft, and moving vehicles and the sight problems he described gave rise to a legitimate concern by the respondent as to the safety of all involved with the applicant working in this area.  They were so concerned that they suspended him on full pay while they looked for alternative employment for the applicant.  Again the question is posed was this victimisation as the respondent knew the applicant had presented a claim and knew that the applicant had been successful in establishing he had a disability.  They also had a duty to the applicant to protect his safety and the travelling public.  The tribunal does not find that the suspension at that stage was an act of victimisation because the applicant had brought a claim.  It was the action of management who had had a serious problem highlighted to them and were trying to resolve it in everyone’s interest, and was because of the evidence given at the preliminary hearing.

Claim 3 - Dismissal

8.	The applicant was dismissed on 6th October 2000.  He was suspended from 28th March 2000.  A meeting was held with the applicant, Mr Ambrose and Mrs Ferris on 29th March 2000 at which Mr Ambrose advised the applicant that the decision from the tribunal had highlighted the impact of the applicant’s disability working in a safety critical area.  Mr Ambrose advised the applicant of relocation options available to him while an independent assessment was made of the situation.  The applicant responded that he was not interested in relocation and he wished to remain in flight dispatch.  At the end of that meeting Mr Ambrose again stated to the applicant that if he was not interested in relocation he would be able to stay until the independent assessment was concluded.

9.	A further meeting was held with the applicant on 1st June 2000.  The applicant was advised that there were alternative employment vacancies and he was told to consider those vacancies for one week.  A further meeting was held on 20th July at which the company advised the applicant that they had created a position for him which was called an Engineering Co-ordinator.  Mr Ambrose stated that it would not require long periods of time on the computer and would be involved with the co-ordination of engineering activities both for the building of the new terminal, as well as the maintenance of the existing and new terminal.  The applicant was provided with written details of the position and asked to consider it.  The applicant still maintained he could do his job in flight dispatch.  He was advised to go home and consider the offer.  He subsequently refused the offer.  There was a meeting on 17th August 2000 at which the applicant stated he was rejecting the offer.  The company wrote to him on the 18th August asking him to reconsider his position as it was the only employment open to him.  The applicant wrote to the company explaining why he did not feel that he should be relocated to another area.  Discussions and correspondence continued and eventually the applicant’s contract of employment was terminated on 29th September 2000.  He appealed the decision and this was heard by Mr Gordon Milligan.  Having considered the appeal, it was dismissed and the applicant’s employment was terminated with effect from Friday 6th October 2000.  

10.	The tribunal found as a fact that the respondent was aware that the applicant was a disabled person.  They had indications before the tribunal hearing in February 2000 but were in no doubt from receiving the decision of the tribunal on 21st March 2000.  They were aware that there was a serious problem with having a man with limited eyesight working with aircraft vehicles and critical load-sheets which he had indicated in the tribunal could be completed by him on the basis of instinct.  The tribunal then looked at the employer’s response in relation to its duty under Section 6 of the Disability Discrimination Act 1995.  The employer seems to have considered this to some extent but the evidence of what happened between March and dismissal does not comply with the reasonable adjustments required by the Act.  Mr Ambrose told the applicant that they would carry out an independent assessment and that the applicant would be kept informed.  From the evidence given to the tribunal no such independent assessment was carried out.  Mr Ambrose stated that he had contacted the Civil Aviation Authority and the Health and Safety Executive.  No one was called from either of these organisations to give evidence and there was no written material produced to the respondent or to the tribunal.  It is obvious that if these people were contacted the exchanges were verbal.  They seemed to have alarmed Mr Ambrose even further and we consider that he acted in an arbitrary fashion in deciding to dismiss the applicant.  The company did not carry out an independent risk assessment and this is what the tribunal would have expected to happen at the very least.  There are people who can carry out this risk assessment and it would be normal to do so and then discuss the outcome of such an assessment with the applicant himself to see what accommodation could be made.  Similarly Mr Ambrose sought an opinion from Dr Jenkinson who was the company doctor, and reported as follows:  “Clearly I am concerned from a health and safety point of view that Mr Winning may be at a greater risk than a person with normal vision of making a mistake when it comes to completed the load sheet and balance chart.  It is not possible to quantify this risk but I would say that it is above that of someone with normal vision”.  This was the only evidence produced to the tribunal and quite clearly it is not strong enough evidence to result in a complete change of the applicant’s job.  Again it points to the necessity of having a risk assessment to establish what the applicant can and cannot do.  This was never done from March 2000 until his dismissal.  Quite simply the tribunal considers that the respondent over-reacted when it received the decision of the tribunal.  Similarly, it may well have been that the applicant exaggerated his condition at the preliminary hearing because he maintained after that hearing he was still able to do his original job, whereas the evidence given at the tribunal made the respondents aware that he could not continue to do his job.  The applicant stated to this tribunal that he would have discussed the limitations on his job if he had been consulted properly about the findings made by the respondent.  We consider in this case the respondent did not consider reasonable adjustments under the Section 6 duty imposed upon it and accordingly the dismissal was for a reason related to the applicant’s disability and rendered it unfair and discriminatory.

11.	The applicant did not consider the alternative position offered to him in any realistic sense whatsoever.  From the evidence presented to the tribunal the applicant appears to be a stubborn and obstinate man who tried to retain his old position in the full knowledge that the position no longer existed.  He did not want to consider change, he did not want to move from his job although he must have known that he had a progressive condition affecting his eyesight and he was in a safety critical area.  The company offered him an alternative position in the airport with the same salary, terms and conditions.  The applicant did not consider it at all.  The tribunal find that he has contributed to his own dismissal by his conduct.  We evaluate his contribution at 40%, and reduce basic and compensatory awards accordingly.  The applicant has been in receipt of incapacity benefit since his dismissal – a period of fourteen months and this is due to stress.  He is not in a position as of the date of this hearing, to return to work of any nature and the tribunal does not award a sum for future loss as the applicant is not able to work.  The applicant has been in receipt of incapacity benefit and this will be offset from the date of dismissal to date of hearing (on the basis of figures submitted by the applicant).

	The tribunal accepts that the applicant was distressed at losing his job because of his disability and he did not expect that this would happen.  We took into account his length of loyal service to the respondent, his age and personality and consider that an award of £6,000 is appropriate for injury to his feelings.

	Basic Award

	Employed from May 1988-October 2000
	17½ weeks entitlement at £299.5 – say £300 per week	=	£5,250.00
	less 40%		£3,150.00

	Compensatory Award

	Date of dismissal to date of hearing 14 months @
	£892.97 net	=	£12,501.58
	Minus incapacity benefit received		£3,322.59
			£9,178.99
	Less 40%		£5,508.00

	Total		£8,658.00
	Plus injury to feelings		£6,000.00
	With interest from 9 May 2001 until 5 December 2001
	210 days at 7%		£276.00

			£14,934.00

This decision is a relevant decision under the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

____________________________________
M P PRICE
Vice President

Date and place of hearing:  3, 4, 5 & 7 December 2001, Belfast

Date decision recorded in register and issued to parties: 9 January 2002