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THE
INDUSTRIAL TRIBUNALS
CASE REF: 1964/07
CLAIMANT: Kevin Anthony Campbell
RESPONDENTS: 1. Mr Laurence Martin
2. Brett Martin Ltd
DECISION
The
unanimous decision of the tribunal is that the claimant’s claim
of unlawful discrimination on the grounds of disability be dismissed.
Constitution
of tribunal:
Chairman: Mr
P Kinney
Members: Mr
O’Hea
Mr
Hannah
Appearances:
The
claimant appeared and represented himself.
The
respondents were represented by Mr Bloch of the Engineering Employers
Federation.
ISSUES
The issues the tribunal had to
determine were agreed at the outset of the case as follows.
Were
the respondents under a duty to make reasonable adjustments in
respect of the claimant’s request to alter his shift pattern?
If
so, did the respondents fail in their duty to make reasonable
adjustments in respect of the claimant’s shift pattern
thereby subjecting him to unlawful discrimination on the grounds of
his disability?
Did
the respondents unlawfully discriminate against the claimant on
grounds related to his disability when it counted two periods of
absence as ordinary sick leave and gave the claimant a verbal
warning?
Did
the claimant provide a written grievance to the respondents in
relation to his claim for disability related discrimination?
Are the claimant’s claims
within the time limits allowed by the Disability Discrimination Act
and if not should the time be extended on just and equitable
grounds?
Evidence
The
tribunal heard from Mr Campbell and from Doctor Hall Campbell and
also considered documents in the claimant’s bundle and the
respondents’ bundle which were specifically referred to the
tribunal.
Findings of fact
The tribunal found the following
findings of fact.
The claimant started employment with
the second-named respondent in or around March 1998. He initially
worked as a production operative and subsequently was promoted to a
technical operator. He was off work for approximately six months
from the summer of 2006 until almost Christmas 2006. At the time,
he was working on a rotation involving two weeks on night duty and
two weeks on day duty. This was the common rota employed by the
respondents in the workplace.
When
he returned to work the claimant completed a night-worker’s
health screening questionnaire on 27 January 2007. The
questionnaire asked if the claimant had any medical or health
condition likely to affect his ability to do night work or if it
could be made worse by night work and included a list of conditions.
The claimant ticked “yes” to heart or circulatory
problems, medical conditions affecting sleep, and other health
factors which may affect his fitness to do night work.
As a consequence of his replies to
the questionnaire, the respondents arranged for him to meet the
company Doctor, Doctor Hall Campbell, to discuss the matter.
The
claimant met Doctor Campbell on 24 May 2007 and Doctor Campbell
prepared a report dated 31 May 2007 which was provided to the
second-named respondents. The claimant did not have sight of this
medical report at the time.
In the report Doctor Campbell stated
of the claimant
“He
is on ongoing medication and Kevin is of the opinion shift work makes
it difficult for him to take his medication in a regular pattern
resulting in disturbed sleep and aggravation of his depression. It
would be my opinion at this stage that it would not be essential to
transfer Kevin but possibly advisable”.
Following his attendance with Doctor
Campbell the claimant took no further steps in relation to his
request to be transferred from the night shift. On 27 June
2007 the respondents recorded a verbal warning against the claimant
in respect of his poor attendance. The claimant had had absences
within the previous 12 months on 4 occasions. Only one of those
absences was recorded as relating to his depression and to his
disability. The other occasions were recorded as one period of flu
and two periods of sickness. The disciplinary process for absence
is triggered by three absences within a 12 month period.
The
claimant accepted that a non-disabled person who was off for three
periods of absence within a 12 month period would have been treated
in the same way and would have received a verbal warning.
The
claimant also pointed to a comparator, Mr Snoddy. Mr Snoddy also
saw Doctor Campbell on 16 January 2006. He also had requested a
transfer from shift work to day work. In his letter of the same
date to the first-named respondent’s Doctor Campbell records
“I have no doubt Stephen would come under the DDA and I feel
every effort should be made to transfer him to day work for a trial
period”.
The respondents accepted that the
claimant had a disability within the terms of the Disability
Discrimination Act 1995.
The claimant submitted a letter of
grievance dated 31 August 2007. This dealt with his grievance that
there was a failure to make reasonable adjustments by not
transferring him from night work. The claimant however accepted
that he had made no written grievance in relation to any claim
arising from the verbal warning for absence.
The tribunal also heard from Doctor
Campbell. He confirmed that he was very familiar with the claimant
and had seen him 18 times over the course of his employment. He
confirmed the claimant was undoubtedly suffering from anxiety and
stress which had been present for a considerable period of time.
Doctor
Campbell had seen both the claimant and Mr Snoddy. He told the
tribunal that Mr Snoddy’s condition was quite different to
that of the claimant. A diagnosis of depression can be made which
covers a wide spectrum of conditions. Both men however were, in
Doctor Campbell’s opinion, disabled for the purposes of the
DDA.
Doctor
Campbell said that when he saw the claimant he noted that the
claimant whilst off work still had a disturbed sleep pattern and had
studied the medication the claimant was on. There was nothing in
that medication to suggest that night work would interfere with the
taking of the medication or that day work was essential. Doctor
Campbell said that transferring the claimant to day shift was
“possibly advisable” in his report. He informed the
tribunal that he was frequently asked by workers to have them
transferred from night work. It was his practice if an individual
was unhappy with working on night shift to put such a phrase in his
report.
Doctor Campbell consulted the Faculty
of Occupational Medical guidance on conditions that may be
exacerbated by night work. He said that he saw no evidence of the
factors to be taken into consideration in the claimant’s
condition. Doctor Campbell contrasted this with Mr Snoddy who
would, in his opinion, meet some of the factors as set out.
Duty to make reasonable adjustments
Under Section 3(A2) 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.
Section 4 of the DDA sets out the
duty:
“(1) Where –
a provision, criterion or practice
applied by or on behalf of an employer; or
any physical feature or 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 from having that effect”.
The
respondents conceded at hearing that the duty to consider making
reasonable adjustments had arisen. They contended however that the
adjustment proposed by the claimant, namely removing him from night
work was not likely to be effective, on the basis of the medical
evidence presented by Doctor Campbell.
Disability related discrimination
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 [2008] IRLR 700 ruled
that there is only disability related discrimination if a
non-disabled person to whom the same reason for the treatment 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.
Time Limits
8. Under
the terms of the Disability Discrimination Act 1995, a claim for
disability discrimination must be made within three months of the act
complained of. In this case, the act complained of is the failure of
the respondents in their duty to make reasonable adjustments. The
tribunal has concluded that the claim arose when the respondents
considered the advice of Dr Campbell contained in his report of 31
May 2007. The claimant then made a written grievance on 31 August
2007. Under the provisions of Regulation 15 of the Employment
(Northern Ireland) Order 2003 (Dispute Resolution) Regulations
(Northern Ireland) 2004 as they apply to this case, where a written
grievance is made within the normal time limit, time for presenting a
claim is extended by three months. The claimant presented his claim
on 9 November 2007, within that further three month period. The
tribunal concludes that the claimant’s claim in relation to
reasonable adjustments is made within the statutory time limit.
The grievance requirement
9. Article
19 of the Employment (Northern Ireland) Order 2003 provides that a
claimant cannot make a complaint to an Industrial Tribunal under a
jurisdiction to which the Article applies if the claimant has not set
out the grievance in writing and sent the statement or a copy of it
to his employer. Under Schedule 3 of the same order disability
discrimination in the employment field is covered by Article 19.
10. In
this case the tribunal is satisfied that no written grievance was
made in relation to the claimant’s claim of discrimination on
grounds of disability in that the respondents issuing a verbal
warning for his absence. The tribunal has no jurisdiction to
consider that claim and it is therefore dismissed. In any event the
tribunal, on the basis of the facts found, would have concluded that
the claimant has failed to discharge the burden of proof. In his
evidence he accepted that a non-disabled person with similar absences
would have been treated in exactly the same way.
11. The
respondents have accepted that they had a duty to consider making a
reasonable adjustment. The provision, criterion or practice in this
case which has been identified by the claimant is that he should have
been transferred from night duty. The tribunal is not satisfied that
Mr Snoddy is a comparator as he himself is disabled within the terms
of the Act and the tribunal accepts Doctor Campbell’s evidence
that there were significant differences in their medical conditions
and in the recommendations that he made to the respondents.
12. In
determining whether the duty has been satisfied the tribunal should
consider what steps are reasonable in all the circumstances of the
case for the respondents to have to take in order to prevent the
provision, criterion or practice from having the effect of placing
the disabled person concerned at a substantial disadvantage in
comparison with persons who are not disabled.
13. In
this case, the tribunal has accepted Doctor Campbell’s evidence
that, in his professional medical opinion, there was no medical
reason to transfer the claimant from night work and that any such
transfer was not likely to remove any substantial disadvantage that
the claimant may have incurred – in this case a disrupted sleep
pattern and the ability to take his medication. The tribunal is
satisfied that the move from night work to day work would not have
had a substantial benefit to the claimant in terms of alleviating the
disadvantage he considered that he suffered. The tribunal therefore
concludes that the respondents have not discriminated against the
claimant and his claim is dismissed.
14. At
the conclusion of the hearing, Mr Bloch on behalf of the second-named
respondent sought costs confined to witness expenses. These expenses
were incurred by the respondents in the sum of £230. The
application for costs related to witnesses who were only concerned
with the claimant’s claims for disability discrimination and
unfair dismissal which were withdrawn on the first day of this
hearing.
15. The
claimant in response said that he withdrew those claims when he
arrived after advice from the Labour Relations Agency on the basis
that he did not want to waste anyone’s time. He advised that
he was on long-term incapacity benefit receiving approximately £93.00
per week, of that figure he assessed that after payment of rent,
electricity, food and other essentials, that he had approximately £10
per week to live on.
16. Mr
Bloch makes his application on the basis that the claimant’s
claims had no reasonable prospect of success and that the claimant
behaved unreasonably in continuing with these claims to the date of
hearing.
17. In
considering an application for costs the tribunal must first be
satisfied as to the grounds for making such an order and then whether
it is appropriate to exercise its discretion to award costs. In
deciding whether to exercise its discretion the tribunal is entitled
to take into account the means of the paying party. In this case the
tribunal has determined that a costs order is not appropriate. In
reaching this conclusion, the tribunal did not consider that the
claimant was behaving unreasonably. He did not have the benefit of
advice and was representing himself. He was however able to obtain
advice from the first day of hearing from the Labour Relations Agency
and immediately withdrew those elements of the case relating to his
dismissal. The tribunal is conscious of the caution it should
exercise in examining a case with the benefit of hindsight.
18. In
any event, even if the tribunal had considered that there were
grounds for such an order, the tribunal would have declined to make
an order for costs on the basis of the means of the claimant.
19. The
claimant’s claims of unlawful discrimination on the grounds of
disability are dismissed.
Chairman:
Date
and place of hearing: 2 February 2009 and 20 April 2009, Belfast
Date
decision recorded in register and issued to parties:
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