THE INDUSTRIAL TRIBUNALS

CASE REF:	1928/07

CLAIMANT:			Gillian Holdsworth	

RESPONDENT:		Right Price Carpets & Furniture Ltd	

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed, that the respondent discriminated against the claimant for a reason relating to her disability contrary to the Disability Discrimination Act 1995, and the respondent discriminated against the claimant on the grounds of her disability by failure of the respondent to make reasonable adjustments contrary to the Disability Discrimination Act 1995.  The tribunal orders the respondent to pay to the claimant compensation in the sum of £17,480.60.

Constitution of tribunal:
Chairman:		Mr P Kinney
Members:		Dr Ackah
			Mr Hughes

Appearances:
The claimant was represented by Mr Mulqueen, Barrister-at-Law, instructed by Worthingtons, Solicitors.
The respondent was represented by Mr Randall, of Peninsula Business Services.

Issues

1.	The issues were agreed at the outset of the case between the parties as being those identified at the Case Management Discussion on 25 January 2008 as follows:-

Legal issues

i.	Whether the claimant was unfairly dismissed contrary to the Employment Rights (Northern Ireland) Order 1996. 

ii.	Whether the claimant was discriminated against for a reason relating to her disability contrary to the Disability Discrimination Act 1995 (as amended).

iii.	Whether the claimant was discriminated against on the grounds of her disability by failure of the respondent to make reasonable adjustments contrary to the Disability Discrimination Act 1995 (as amended).

iv.	Whether the respondent followed the statutory dispute resolution procedure in relation to the claimant’s grievance dated 23 August 2007.

v.	Whether or not the respondent made unlawful deductions from wages contrary to the Employment Rights (Northern Ireland) Order 1996.

vi.	Whether or not the respondent breached the claimant’s contract of employment contrary to the Employment Rights (Northern Ireland) Order 1996.

vii.	In relation to the claimant’s claim that she was discriminated against for a reason related to her disability, the respondent relies on the defence of justification.

Factual issues

i.	Whether or not the respondent discriminated against the claimant for a reason relating to her disability in its management and treatment of the claimant’s absence.

ii.	Whether or not the respondent discriminated against the claimant for a reason relating to her disability by conducting a capability meeting in her absence.

iii.	Whether or not the respondent’s failure to pay the claimant 90% of her wages as per the terms of the company’s health insurance scheme amounts to a breach of the claimant’s contract of employment contrary to the Employment Rights (Northern Ireland) Order 1996.

iv.	Whether or not the respondent discriminated against the claimant for a reason relating to her disability by failing to await up-to-date medical results prior to conducting a capacity hearing.   

At hearing iv, v and vi of the legal issues and iii of the factual issues were withdrawn by the claimant.  The claimant also confirmed that she did not seek reinstatement or reengagement by way of remedy.

Sources of evidence

2.	The tribunal heard evidence from the claimant and from Steven Holdsworth and Ryan Pollock.  The tribunal was also referred to a bundle of agreed documents.  The tribunal only considered those documents to which it was expressly referred in the course of the hearing.  

Facts found

3.	The claimant started working for the respondent on 17 October 1994.  She was initially employed as a receptionist and subsequently as a sales ledger controller.

4.	The respondent is a major furniture retailer in Northern Ireland with 36 employees and a turnover in excess of four million pounds per annum.

5.	The claimant suffers from multiple sclerosis, diabetes, hyper-tension and depression.  The respondent accepts that the claimant is disabled within the definition provided by the Disability Discrimination Act.

6.	The claimant sought reduced hours because of her MS in September 2004.  This was granted by the respondent through Ryan Pollock, Director of the company.

7.	In February 2007 the claimant had a relapse of her MS.  At this stage she was further diagnosed with depression.  Her GP prescribed anti-depressants and the claimant went off work on 22 February 2007 but continued to attend her doctor on a regular basis.  She provided appropriate sick lines to the respondent covering her absence.

8.	The respondent had retained the services of Peninsula Business Services in or around April 2005, and had fully implemented their recommendations by August 2005.  A staff handbook was prepared but copies were not provided to employees to retain.  A copy was provided to each employee on signing their contract to read and return.  There was a copy of the handbook kept in the office.

9.	After the claimant went on sick leave at the end of February 2007, Lisa Pollock, a manager in the company and sister of Ryan Pollock, contacted Peninsula Business Services by e-mail on 19 March 2007 in which she stated:

“We would like to get the ball rolling about changing her job position”.

10.	Further e-mails ensued. 

11.	On 23 March 2007, Lisa Pollock asked Peninsula Business Services whether the respondent could seek the claimant’s permission to contact her doctor or have her medically examined.

12.	On 29 May 2007 the respondent sent the claimant a letter referring to her illness and inviting her to attend a meeting on 5 June 2007 to consider the situation in more detail.  The letter also asked the claimant to provide consent for the company to contact her doctor.  

13.	The claimant responded by letter of 1 June 2007 saying she wished to co-operate but was not well enough to attend on 5 June 2007 and suggested 19 June 2007 for a meeting.  She also provided consent for the respondent to contact her doctor.

14.	The majority of the letters sent by the respondent to the claimant during this process were drafted by Peninsula Business Services, amended as necessary by Lisa Pollock, returned to Peninsula Business Services to ‘proof’ and then signed by Ryan Pollock and sent out.

15.	On 4 June 2007 Lisa Pollock sent a fax to Peninsula Business Services.  In this she confirmed that the claimant had provided consent to contact her GP and that the claimant intended to attend a meeting to discuss the situation.  Lisa Pollock wrote:-

“This would indicate to us that she is intending to come back.  For us the best scenario would be for her not to come back. However, if she were to come back, we would want her to come back to reception only and not her current job”.

16.	The claimant developed a persistent chest pain and attended her GP on 8 June 2007.  She was referred to the Coronary Care Unit of the Causeway Hospital.  There she was given medication and was asked to return for further tests.

17.	The respondent received a report from the claimant’s GP dated 14 June 2007.  It set out her medical condition and the steps being taken to assist the claimant.  It referred to awaiting a treadmill test.  The report concluded:-

“Overall, we could do with the result of her treadmill test, but there is no doubt that at the present time she is not fit for work, and a fit to return date is impossible to predict at the moment.”

18.	The respondent wrote to the claimant on 6 July 2007 to rearrange the meeting for 17 July 2007.  The letter, signed by Ryan Pollock, stated that the purpose of the meeting was to discuss:-

“– 	Your absence from work due to ill-health. 

–	The enclosed copy of the medical report from your GP/Consultant/the Occupational Health Practitioner;

–	The likelihood of you returning to your job/work in the near future.

–	Whether there are any reasonable adjustments that can be made to your job or in the workplace that would facilitate a return to work.

–	Whether there is any alternative employment available that would be suitable for you.”

19.	On 16 July 2007 the claimant e-mailed Ryan Pollock to advise him that she had to go to the hospital the following day and would not be able to attend the meeting.  She was to have her treadmill test on 23 July 2007 and suggested the meeting should await the results of her tests.  She anticipated the results within the following two weeks.  She also asked if she could bring a disabled employee advisor with her to the meeting.

20.	On receipt of this Lisa Pollock e-mailed Peninsula Business Services and stated:

“Once again she has stalled on our requested meeting”.  

21.	Lisa Pollock was also reluctant to allow the advisor to attend, stating:

“… do we have to agree to let him attend?  I’d rather not as (sic) do not want to be placed on the spot with regards to amendments I may have to make within the office”.

22.	On 19 July 2007, Ryan Pollock e-mailed the claimant to confirm that the meeting of 17 July 2007 had been cancelled and that the advisor could join the meeting “at an appropriate time”.  The meeting was rescheduled for 7 August 2007.  

23.	On 6 August 2007, Lisa Pollock e-mailed the claimant asking her for a “copy of the report from Dr Vargese” so that Ryan Pollock would have time to read it before the meeting.  The claimant responded by an e-mail sent at 3.00 am on 7 August 2007.  She said that it was impossible to get a written report from a consultant at such short notice.  She stated that she would not attend the meeting.  She felt that the respondent had already made its decision.  She invited the respondent to consult her GP.

24.	Ryan Pollock decided to continue with the meeting on 7 August 2007.  Mr Pollock stated in evidence that his role at the meeting was to consider the information before him and make a decision.  Lisa Pollock was also at the meeting. The content of the correspondence and the GP’s report were discussed by Ryan and Lisa Pollock.  Lisa Pollock had input to the decision making process. 

 25.	Ryan Pollock could not recall if any consideration was given to reasonable adjustments at the meeting on 7 August 2007. He gave evidence that they had considered other positions for the claimant in reception, stock control and purchase control. There were no job descriptions or duties identified for these roles. The receptionist role was discounted as the mornings from 9.00 to 11.00 were the busiest times and the claimant would not normally be at work during those hours. The roles in stock control and purchase control were discounted because there were full time employees already working there. He did not consider any new role for the claimant amalgamating any of these functions, nor whether any adjustment of working hours was appropriate.

26.	The meeting was conducted by Ryan Pollock and Lisa Pollock simply discussing matters across their desks in an open plan office area.  It took between                 10 – 15 minutes, including the preparation of a two-page typewritten minute which was e-mailed to Peninsula Business Services shortly thereafter.  

27.	Ryan Pollock confirmed that he was unaware that the claimant had previous experience in purchase control and stock control. He was aware she had worked in reception.

28.	The claimant then received a letter from the respondent dated 8 August 2007, advising her that the respondent had no alternative but to terminate her employment on the grounds of ill-health/capability.  She was informed of her right to appeal.

29.	The claimant wrote to the respondent on 13 August 2007 appealing against the decision to dismiss her.  The appeal hearing was held on 27 August 2007.  In attendance were the claimant, Lisa Pollock and Raymond Pollock.  Raymond Pollock was the Managing Director of the respondent and the father of Ryan and Lisa Pollock.  No mention was made of alternative roles, or any adjustments that could be made to allow the claimant to return to work.  Raymond Pollock read from a typewritten document.  The tribunal did not hear evidence from Raymond Pollock or Lisa Pollock.

30.	The respondent wrote again to the claimant on 29 August 2007 to confirm that the decision to dismiss was upheld.

31.	At no time in this process did the respondent discuss with or put to the claimant any alternative post they may have considered or any other possible adjustment.  

32.	The position of receptionist had been discussed the previous year, in June 2006, and suggested to the claimant as an alternative post with no reduction in hours or wages. 

33.	The receptionist post would be busy in the mornings from 9 - 11, a time when the claimant would not be in the office four days out of five.  There would also be other busy times in the day, such as early afternoon.  This issue was not discussed with the claimant when the respondents considered offering her a receptionist post in 2006.  At all times there was a team of receptionists sharing the role.  The claimant had experience in assisting with stock control and purchase control, the other areas identified by the respondent as being considered at the medical capability meeting on 7 August 2007.  

34.	Ryan Pollock in his evidence told the tribunal he was simply following the procedures introduced after the services of Peninsula Business Services were retained.  However he was unable to identify those procedures with reference to either the employee contracts or the staff handbook.  He accepted that he had not read any of the letters that he had signed and sent to the claimant and was unsure of the exact meaning of some of the terms within that correspondence.

35.	In his evidence, Ryan Pollock identified two other members of staff who had been off on sickness absence.  

36.	Mr Barbour commenced employment with the respondent on 2 October 2000 and went off on sickness absence from 28 February 2005.  He produced regular sick lines and kept the respondent informed of his condition.  He returned to work on 21 June 2005.  No medical capability procedures were put in place regarding Mr Barbour.  No medical report was sought during his absence.  On his return to work a medical certificate was requested on the advice of the respondent’s insurers.

37.	Mr Mitchell commenced work with the respondent on 1 March 1979 and went off on sickness absence on 20 November 2003.  Mr Mitchell returned to work for a short period and went off again in February 2004.  Mr Mitchell met with the respondent in March 2004 and eventually returned to work on 24 May 2004.  No medical capability procedures were put in place regarding Mr Mitchell, nor was a medical report sought during his absence.

38.	The claimant found this whole experience very traumatic.  She had considered herself a valued member of the team.  It was accepted by Ryan Pollock that she was a valuable member of staff.  The process had impacted on her personal life and on her relationships. 

39.	Since her dismissal the claimant has had continuing ill health and has been unable to seek other work.

The law

A.	Unfair dismissal

40.	In determining whether or not a dismissal is fair the employer must establish the principle reason for the dismissal.  Under Article 130 of the Employment Rights (Northern Ireland) Order 1996 one potentially fair reason relates to the capability of the employee.  By Article 130(4) the determination of whether the dismissal is fair or unfair having regard to the reason shown by the employer, depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and shall be determined in accordance with equity and the substantial merits of the case.  

41.	There is a considerable body of case law in relation to the issue of capability.  It is not for the tribunal to substitute its own views for those of the employer.  The tribunal must establish whether or not the dismissal was within the range of reasonable responses which a reasonable employer might make.  The tribunal was referred to the case of Lynock v Cereal Packaging Ltd [1988] IRLR 510 wherein it was stated:

“The approach of an employer in this situation is, in our view, one to be based on those three words which we used earlier in our judgement – sympathy, understanding and compassion.  There is no principle that the mere fact that an employee is fit at the time of the dismissal makes his dismissal unfair; one has to look at the whole history and the whole picture.  Secondly, every case must depend upon its own facts, and provided that the approach is right the factors that may prove important to an employer in reaching what must inevitably have been a difficult decision, include perhaps some of the following – the nature of the illness; the likelihood of it occurring or some other illness arising; the length of the various absences and the spaces of good health between them; the need of the employer for the work done by the particular employee, the impact of the absences on others who work with the employee; the adoption and exercise of the carrying out of the policy; important emphasis on the personal assessment in the ultimate decision and of course, the extent to which the difficulty of the situation and the position of the employer has been made clear to the employee so that the employee realises that the point of no return, the moment when the decision was ultimately being made, may be approaching.  These, we emphasise, are not cases for disciplinary approaches, these are for approaches of understanding.”

42.	The tribunal was also referred to the case of Crompton  v  Decorum Motors Ltd [1975] IRLR 168 where it was stated:-

“Before a decision is taken to dismiss a man over 50 from a responsible position on the basis of a diagnosis of a GP, we think the employer should invite the employee to submit to a further examination by a specialist, preferably, but not necessarily, selected by the employer.”

Conclusions of the tribunal on Issue 1

43.	The claimant was a long-standing employee with over 13 years service with the respondent.  She had a completely clear disciplinary record in her employment and prided herself on her ability to do her job and to do her job well.

44.	The reason given by the respondent for the dismissal of the claimant was a potentially fair reason, namely capability.  However, in determining whether the respondent acted reasonably in treating that reason as a sufficient reason for dismissing the claimant the tribunal took into account the following factors.

45.	The respondent placed considerable emphasis on the content of the GP report of 14 June 2007.  However the report did not in fact say that the claimant could not return to work in the foreseeable future.  Instead it clearly said the GP was unable to give such a prognosis and thought it preferable to wait for the outcome of the tests which the claimant was shortly to undertake.

46.	The respondent was aware of its entitlement to seek further medical evidence either from the claimant’s GP or independently.  It was aware of the complex medical history of the claimant but took no steps to seek such further medical evidence.

47.	Lisa Pollock wanted to get rid of the claimant.  She instigated the process with Peninsula Business Services advice less than four weeks from the initial date that the claimant went off on sick absence.  On her fax to Peninsula of 4 June 2007 she said:-

		“For us the best scenario would be for her not to come back.”

48.	Although Lisa Pollock had a pivotal role in the decision to terminate the claimant’s employment, she did not give evidence to the tribunal.  She was however in attendance throughout the hearing.  

49.	Neither Lisa Pollock nor Raymond Pollock gave evidence as to the appeal hearing.  The tribunal has determined that this was little more than window dressing of the decision taken on 7 August 2007.  

50.	Mr Ryan Pollock told the tribunal he was fully responsible for the decision to terminate the claimant’s employment.  However from his evidence it was clear Lisa played a pivotal role in the decision.  The tribunal considers that there was no meaningful meeting held on 7 August 2007.  At best there was a conversation across two desks in an open office area.  There was no consideration given to any possible adjustments that could be made to facilitate the claimant’s return nor was there any credible evidence of anything other than a superficial look at alternative employment.  There was no consideration of the need for the work done by the claimant to be done, the impact of the absence of the claimant on others, and whether sufficient medical evidence was available to form a view as to when the claimant was likely to return to work.

51.  	It is the tribunal’s finding that the medical capability procedure initiated and followed by the respondent was a sham and that the respondent’s intention from an early stage was simply to get rid of the claimant.

52.	For these reasons, the tribunal determines that the claimant was unfairly dismissed by the respondent.

Duty to make reasonable adjustments

53.	Under Section 3A(2) of the Disability Discrimination Act 1995 (‘DDA'), an employer discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

54.	Section 4A of the DDA set out the duty:-

		“(1)	Where –

(a)	a provision, criterion or practice applied by or on behalf of an employer; or

(b)	any physical feature of premises occupied by the 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 is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.”

55. 	The respondent conceded at hearing that the duty to make reasonable adjustments had arisen.
.
56.	Where such a duty has arisen the tribunal must decide whether it is reasonable for an employer to make any particular adjustment.  In doing so, the tribunal must consider the factors set out in Section 18B of the Disability Discrimination Act 1995.  Examples of steps which employers need to take include allocating some of the disabled persons duties to other persons; making adjustments to premises; transferring the disabled person to fill an existing vacancy; altering the disabled persons hours of working or training; acquiring or modifying equipment; providing supervision or other support. Ryan Pollock in his evidence could not recall if any consideration was given to reasonable adjustments at the meeting on 7 August 2007.

57.	It is the tribunal’s conclusion on the basis of the facts as found that the respondent gave no consideration to reasonable adjustments at any stage in the consultative process.  They did not obtain updated or appropriate medical information despite knowing that the claimant had undergone further tests and the results of those tests were outstanding.  They gave no serious consideration to alternative posts.  No regard was had to the possibility of the claimant working in reception, a post for which she was considered suitable in June 2006, and which was referred to by Lisa Pollock in her fax of 4 June 2007. No other adjustments were considered. The respondent has therefore failed in its duty to make reasonable adjustments.

Disability-related discrimination

58.	Disability-related discrimination occurs when an employer’s treatment is for a reason which relates to the employee’s disability, the treatment is less favourable than the way in which the employer treats (or would treat) others to whom that reason does not (or would not) apply; and the employer cannot show that the treatment is justified.  The House of Lords in the case of London Borough of Lewisham  v  Malcolm ruled that there is only disability related discrimination if a non-disabled person to whom the same reason for the treatment in question would apply would be accorded more favourable treatment.  Thus a disabled person dismissed for disability related absence is not discriminated against if a non-disabled person with the same amount of absence would also be dismissed.  

59.	Following the burden of proof regulations and the guidance given by the Court of Appeal in Igen  v  Wong and Madarassy  v  Nomura International, the tribunal determines that the claimant has discharged the burden of proof and the onus of proof therefore passes to the respondent to show that they have a reasonable explanation for their actions which was not tainted by discriminatory considerations.  

(a)	In this case the claimant points to two comparators, Mr Barbour and Mr Mitchell.  Both were absent for lengthy periods, neither were the subject of a medical capability process, and neither was dismissed. 

(b)	 The earlier request for medical information in the claimant’s case compared to the approach taken with both the comparators.

(c)	One comparator, Mr Barbour, was absent during the period when Peninsula Business Services were retained by the respondents and a similar process was not put in place for him.  

60.	The tribunal determines that the respondents have failed to discharge that burden of proof for the following reasons.  

61.	The only explanation given by Ryan Pollock for the difference in treatment of the comparators and the claimant was the involvement of Peninsula Business Services in the case of the claimant.  The tribunal was not satisfied that this was a credible explanation of the difference in treatment bearing in mind the following factors:-

(a)	The finding of the tribunal that the medical capability procedure was a sham.
(b)	The involvement of Lisa Pollock in the decision making process and the eventual decision to terminate the claimant’s employment in light of her comments and e-mails and faxes to Peninsula Business Services.

(c)	The absence of evidence received from Lisa Pollock who took part not only in the hearing of 7 August 2007 but also took part in the subsequent appeal hearing.

(d)	The absence of evidence from Raymond Pollock who conducted the appeal hearing.

(e)	No consideration of reasonable adjustments was made at the original capability hearing.

(f)	No account was taken of the claimant’s previous experience in the three roles that were apparently considered by way of alternative employment.

(g)	No explanation was given as to why the claimant was suitable for her role at reception in June 2006 but was not considered acceptable for a role in the same circumstances in August 2007.  In her fax of 4 June 2007, referred to at paragraph 15, Lisa Pollock mentioned the possible return of the claimant to work.  She envisaged then that the claimant, if she had to come back, would come back to reception.

62.	There was no credible evidence on which the respondent could base a defence of justification. The tribunal therefore finds that the respondent unlawfully discriminated against the claimant for a reason related to her disability.

Compensation

63.	The tribunal is conscious that there must not be an overlap in the compensation awarded on the basis of the various findings against the respondent the tribunal has made.

Basic Award

64.	The basic award is based on the gross weekly wage x years of service x the age multiplier.  In this case it is a figure of £242 x 14 x 1 giving a total basic award of £3,388.

Loss of statutory rights - £250

Compensatory Award

65.	The tribunal was invited to make a compensatory award on the claimant’s loss of earnings.  However the claimant informed the tribunal that she was not fit to work and did not envisage ever returning to work because of her conditions.  The claimant also attempted to attribute her inability to return to work to the actions of her employer.  However she called no medical evidence in support of this contention and although the tribunal indicated to the claimant the difficulty this posed no medical evidence or other evidence was provided.  The tribunal finds that the claimant has not persuaded it, on the balance of probabilities, that there is a causal link between her treatment and dismissal by the respondent and her medical condition.  The tribunal is mindful in reaching this conclusion that MS is a progressive condition and type 2 diabetes can also deteriorate.  She was receiving treatment for her depression and all of her conditions existed before the commencement of the capability procedure by the respondents.  There was no evidence of any effort to mitigate or evidence of any likelihood of the claimant returning to work.  The tribunal declines to make any award under this heading.

Injury to feelings

66.	Compensation for injury to feelings is recoverable and guidance is provided to the tribunal in the case of Vento  v  Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102.  The respondent submitted that if discrimination was found to exist it should be regarded as a one-off act and should fall within the lower band of Vento.  The claimant in her original schedule of loss sought a figure of £15,000 but in her submissions contended that the appropriate band was the upper band and should include an element for aggravated damages.  

67.	The tribunal considered the impact on the claimant’s health, confidence and well being.  It took into account the length of the claimant’s service, the fact that she was dismissed in a high-handed manner and the profound impact on the claimant’s sense of well being and on her confidence.  It also takes into account that this was a one-off act.

68.	The tribunal has carefully considered the evidence and has accepted the evidence of the claimant as to the effect it has had on her life.  The tribunal considers that the appropriate figure should be at the upper end of the middle band and awards the sum of £12,500 for injury to feelings.  The tribunal on the facts as found does not consider that an additional award for aggravated damages should be made.

69.	The tribunal determines that it is appropriate to award interest on the compensation payable for injury to feelings from 7 August 2007, the date of discrimination to the date of calculation:-

	Interest calculated on £12,500 x 8% = £2.74 per day x 490 days 	£1,342.60
	
	Total amount payable by the respondent to the claimant is £17,480.60.

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

Chairman:

Date and place of hearing:	15-19 September 2008, at Belfast.

Date decision recorded in register and issued to parties: