THE INDUSTRIAL TRIBUNALS 
CASE REF:	878/03

	

CLAIMANT:		Charles Hegarty	

RESPONDENTS:	1.	Harold McGarrity & Sons Limited
			2.	Liam Cregan			 

DECISION 

The unanimous finding of the tribunal is that the claimant did not suffer discrimination on the basis of his disability.  It further finds that he was unfairly dismissed by the first named respondent. 

Appearances:
The claimant was represented by Mr M. Reid, Solicitor, Law Centre, Derry. 
The respondent was represented Mr E O’Loan, Solicitor, of Tughans Solicitors. 

Sources of Evidence

1.	The tribunal heard evidence from the claimant and for the respondents from Liam Cregan, General Manager and Philip McGarrity, Sales Director.  The tribunal also received 6 bundles of agreed documents amounting to 108 pages.

The Claim and Defence

2.	The claimant claimed unfair dismissal and disability discrimination.  The respondents denied the claimant suffered from a disability or from disability discrimination and stated that he had been dismissed for gross misconduct.

The Issues

3.	(a)	Did the claimant suffer from a disability?

(b)	If yes, did he suffer discrimination on the basis of his disability?

(c)	Was the claimant unfairly dismissed?

(d)	If yes to either (b) or (c)  or both what is the appropriate remedy?

Findings of Fact

4.	(a)	The first named respondent employed the claimant from 24 January 1998 to
16 January 2003.  Initially he was a mechanic and from October 2001 service manager.  The tribunal was so persuaded because:-

(i)	The respondents accept that the claimant was promoted albeit to senior technician and given an increase of salary.

(ii)	The claimant claims he became service manager.

(iii)	In correspondence to the respondents and in his originating application the claimant describes himself as service manager.  In the respondents’ Notice of Appearance and in reply correspondence this description was never challenged.

(iv)	A customer, Mr Black, centrally involved in a disciplinary matter concerning the claimant, also describes him as service manager.

(b)	The claimant was born on 16 July 1949.  He earned per week £240.38 gross £186.46 net.

(c)	During the claimant’s work he spent 50% of his time on administration and 50% on workshop duties.

(d)	The claimant had a disciplinary record.  On 1 October 2002 he received a written warning for using bad language and on 29 November 2002 he received a further written warning for careless administration i.e. that he had failed to respond to 3 phone-calls from Mr Black to arrange servicing of vehicles from Desmonds in Derry.

(e)	On 16 December 2002 Michael Curran, a technician, fractured his hand and the second respondent directed the claimant to work in the workshop and refused to get a replacement technician from Belfast.

(f)	On 22 December 2002 the claimant lodged a grievance alleging he would no longer be able to work in the workshop from 31 December 2002 by reason of gout and arthritis.  This was the first time the claimant brought to the respondents’ attention that he had health problems affecting his ability to do his work.

(g)	The first named respondent replied to the grievance by deferring a response until 6 January 2003.

(h)	On 24 December 2002 the claimant spoke to Philip McGarrity who deferred the matter until after Christmas.

(i)	On 3 January 2003 the claimant got a letter from his G.P. indicating that he suffered from chronic gout that affected his knees, ankles and toes.  He stated his condition was aggravated by standing and recommended the claimant return to a seated occupation and duties.

(j)	On 6 January 2003 the claimant returned to work and was asked by the second named respondent to work in the workshop.  The claimant refused and was suspended from work.  The claimant did not produce the letter from his doctor to the respondents.

(k)	On 7 January 2003 the claimant submitted a self certificate to the first named respondent for gout beginning 7 January 2003.  The following day he left with the first named respondent the G.P.’s letter of 3 January 2003.  The claimant offered to come back to work in the workshop to the second named respondent who refused.  In the circumstances it was reasonable for the second named respondent to refuse to permit the claimant to return to work on medical grounds.  The second named respondent set out the above position in writing on 10 January 2003.

(l)	The claimant wrote to the second named respondent offering to get a signing-off letter from his doctor and expressing his desire to return to work as service manager.

(m)	The claimant received a letter from the second named respondent dated 10 January 2003.  It required him to attend a disciplinary hearing to consider what disciplinary action, including dismissal, should be taken against him for contacting Mr Black on 10 December 2002 regarding the claimant’s disciplinary matter of 29 November 2002.  It further alleged that he had attempted to get Mr Black to write a letter to the first named respondent exonerating him from blame for the earlier disciplinary matter and for annoying Mr Black by contacting him.

(n)	By letter of 15 January 2003 the claimant replied to the second named respondent setting out his account of the matter that was the subject of the disciplinary hearing.

(o)	At the disciplinary hearing on 16 January 2003 the second named respondent indicated that Mr Black was very angry that the claimant had contacted him at his work on his mobile phone and had interrupted him  during two meetings and with the service that the first named respondent had failed to provide and that he would not be doing business with the first named respondent in the future.

The evidence from Mr Black was given by the second named respondent and was based on his recollection of a phone conversation.

Mr Philip McGarrity advised the claimant on 16 January 2003 that he was being dismissed.

(p)	By letter of 20 January 2003 the first named respondent formerly notified the claimant that he was being dismissed for gross misconduct.  It accepted the evidence of the second named respondent and found that the claimant:-

(i)	had lost the first named respondent future income, and

(ii)	had been extremely discourteous to Mr Black, and

(iii)	had involved Mr Black in internal company affairs, and

(iv)	had asked him to lie and intended to lie himself.

(q)	The first named respondent’s disciplinary code does not prohibit contacting customers or require general confidentiality.  It prohibits disclosing confidential business information.  Nor does the code classify as an offence loss of business to the first named respondent, though the tribunal accepts that this could constitute gross misconduct even if not specifically prohibited.

(r)	On 21 January 2003 the claimant appealed.  The appeal was scheduled for 7 February 2003.  The claimant indicated by letter that he would not be attending the appeal but asked that his letter of 21 January 2003 be considered at the appeal hearing.  The appeal hearing did not take place.

The Law

5.	(a)	To establish that a dismissal is not unfair an employer must establish the
reason for the dismissal and that it was one of the statutory reasons that can render a dismissal not unfair.  If an employer satisfies both of the above requirements then whether the dismissal was unfair or not depends on whether in the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee.

(b)	Where an employer dismisses an employee for misconduct he must have a reasonable belief that the employee has committed an act of misconduct after having carried out a reasonable investigation (to include a reasonable disciplinary hearing and appeal) and dismissal must be within the range of reasonable responses.

(c)	To establish disability discrimination an employee must establish:-

(i)	That he has a disability as defined by Section 1 of the Disability Discrimination Act 1995, and

(ii)	That the employer has discriminated against him in the terms of employment which he offers him or by dismissing him or subjecting him to any other detriment.

Discrimination is to treat the disabled person less favourably than he treats or would treat non-disabled persons for a reason which relates to the disabled person’s disability. 

Application of the Law and Findings of Fact to the Issues

6.	(a)	The claimant suffers from a disability.  He has a physical impairment that is
substantial and has long term effects.  His normal day to day duties are affected in that there is some restriction on his mobility.  His medical condition is clearly set out in the submitted medical reports.

(b)	The claimant first produced medical evidence to the respondents of his medical condition and possible disability on 8 January 2003.  At that stage the claimant was already suspended for refusal to work in the workshop and on 10 January 2003 the respondents initiated disciplinary proceedings.

(c)	As the respondents were only aware of the claimant’s medical condition on 8 January 2003 which disclosed a possible disability then his treatment prior to that date cannot be because of his disability.

(d)	Similarly the disciplinary proceedings, begun by the letter of 10 January 2003, are related to the matters between the claimant and Mr Black.  Because of the shortness of time between the respondents’ knowledge of a potential disability (8 January 2003) and the initiation of disciplinary proceedings that are related to a matter unconnected with the claimant’s disability the tribunal is not persuaded that there was unfavourable treatment of the claimant relating to his disability.  Accordingly the claimant’s claim of discrimination of the basis of his disability is dismissed.

(e)	The tribunal is satisfied that the first named respondent has shown the reason for the claimant’s dismissal (misconduct) and that the reason is one of the statutory reasons that can render a dismissal fair.

(f)	The tribunal is not persuaded that the first named respondent has acted fairly and reasonably in all the circumstances in dismissing the claimant for the reasons advanced in their letter of 20 January 2003.  In so concluding the tribunal was influenced by the following matters:-

(i)	The investigation was flawed in that there was no written statement from Mr Black setting out his complaints or concerns;  no record of his complaints was made by the second named respondent;  Mr Black did not attend the disciplinary meeting;  Mr Black was never asked to attend nor give a written statement.

These flaws are even more important when the claimant challenged their accuracy and no attempt was made to test the claimant’s assertions.

It is also noteworthy that the complaints attributed to Mr Black change from the letter initiating disciplinary proceedings to the minute of the disciplinary hearing to the letter of dismissal.

(ii)	There was not any evidence before the disciplinary hearing that the claimant had been extremely discourteous to Mr Black or that he had asked Mr Black to lie or that the claimant had intended to lie.  Yet all  of these findings were factors in the decision to dismiss the claimant.

(iii)	A third factor in the decision to dismiss i.e. that the claimant had involved Mr Black in internal  company affairs, is not prohibited by the first named respondent’s disciplinary code nor was such a prohibition notified to employees.

Interestingly a statement obtained from Mr Black does not support the respondents’ contentions.  However, this statement was not available to the disciplinary hearing.

(iv)	The first named respondent did not hold an appeal despite the claimant’s request for such an appeal.

(g)	In all the circumstances the dismissal was unfair.  

 (h)	 The matter can now be re-listed to determine compensation.

Chairman:

Date and place of hearing:	2 November2004, 22 December 2004 and
					28 February 2005, Limavady.

Date decision recorded in register and issued to parties: