Thompson v Western Health & Social Care T... Western Health & Social Care T... [2012] NIIT 00210

THE INDUSTRIAL TRIBUNALS

CASE REFS: 210/11

1497/11

CLAIMANT: Robert Thompson

RESPONDENT: Western Health & Social Care Trust

DECISION

The unanimous decision of the tribunal is that the claimant’s claim for discrimination based on disability is dismissed. The claimant is awarded £1,500.00 against the respondent for breach of Article 112 of the Employment Rights (Northern Ireland) Order 1996 relating to flexible working requests.

Constitution of Tribunal:

Chairman: Mr P Kinney

Members: Ms A Hamilton

Mr P McKenna

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr McArdle, Barrister-at-Law, instructed by Directorate of Legal Services.

Issues

1. The issues to be determined by the tribunal are as follows:-

(i) Did the respondent comply with the requirements of the Employment Rights (Northern Ireland) Order 1996 in the consideration of the claimant’s application for flexible working?

(ii) Was any alleged failure to comply with this direct disability discrimination by association (based on the disability of the claimant’s daughter)?

(iii) Did the claimant comply with the statutory grievance procedures. Was the claimant discriminated on the grounds of sex by the respondent’s decision to refuse the claimant’s application for flexible working?

Findings of fact

2. The claimant is employed by the respondent as a Nursing Assistant. He has worked both night shift and day shift as required by the respondent. From July 2006 until May 2011 he had been rostered on night shift in Clinic A at Gransha Hospital. He has an adult disabled daughter who requires care and support. This is not disputed by the respondent.

3. In May 2010, Mr Liam Dunne was appointed Ward Manager in Clinic A. He had previously been Ward Manager in Clinic A from 1997 to 2006. Mr Dunne, after consultation with his line manager, Miss McFadden, considered the staffing needs of the ward. At the time there were two teams of four staff on night duty, two Staff Nurses and two Nursing Assistants on each team. In addition there was a ‘twilight’ shift providing an extra member of staff from 8.00 pm to 2.00 am each night. This post was filled by a bank worker, ie staff employed on an as and when basis. The day shift comprised of five Staff Nurses and one Nursing Assistant.

4. In May to August 2010, two further events occurred. One was the removal from the ward of a patient with particularly complex needs and the second was a general reduction in inpatients. Mr Dunne reviewed the staffing arrangements. He concluded that the night shift should be reduced to two Staff Nurses and one Nursing Assistant. The positions would also be rotated from day shift to night shift. Mr Dunne’s experience was that rotation was the norm in a 24 hour care environment and allowed a fuller experience for staff in a multi-disciplinary team.

5. There were four Nursing Assistants who would be affected initially by the change from night shift to day shift, the claimant being one. Mr Dunne decided to implement the new rota at the beginning of September 2010. He arranged a meeting of Nursing Assistants for 21 September 2010 to discuss the new rota arrangements. In the meantime, on 6 September 2010, he put changes in place pending the meeting. Mr Dunne was aware of the caring responsibilities of the claimant but also of the caring responsibilities of two other Nursing Assistants, Mr McFarlane and Mr O’Sullivan. Mr O’Sullivan was on annual leave at the time and not due to return until 1 October 2010. Mr Dunne removed him from the night shift. Mr McFarlane agreed with Mr Dunne to come off night shift. The claimant was therefore not impacted by the immediate change.

6. On 7 September 2010 the claimant handed Mr Dunne a flexible working application seeking to retain his night shift. This application was on the BERR form used in England and Wales. Mr Dunne was not familiar with the form. He told the claimant that he was not familiar with the form and that he would refer it to his line manager, Mrs McFadden. Mrs McFadden similarly was not familiar with the form, although she recognised it as a request for flexible working. She sought advice, in turn, from her line manager, Mr McAnaney. Mr McAnaney said that whilst also recognising the request to be for flexible working, it was not on the correct form and that the request should be made in line with the Trust’s flexible working arrangements policy. This information was relayed back to Mr Dunne.

7. Mr Dunne held the meeting with the Nursing Assistants to discuss staff rotation on 21 September 2010. Only the claimant and one other Nursing Assistant attended. Before this meeting, Mr Dunne had agreed informal arrangements with Mr McFarlane and Mr O’Sullivan. Both would work on twilight shifts. This removed the need for bank workers and suited all parties. This change had no impact on the claimant who continued on night shift. At the meeting Mr Dunne confirmed the claimant would continue on night shift for the next six months. At the end of the meeting Mr Dunne discussed the claimant’s personal circumstances with him. He told the claimant that he should re-submit his request for flexible working under the Trust’s policy. He also told the claimant that he would discuss the situation again with him in more detail closer to the end of the rotation and try to make arrangements for his personal circumstances at that time.

8. The claimant largely agrees with that account but differs principally in saying that he was not told to re-submit the flexible working application. The tribunal prefers the account given by Mr Dunne for the following reasons:-

(a) The claimant’s evidence was not persuasive in this matter. He gave a number of differing accounts of the conversation.

(b) The claimant told the tribunal that he did not understand Mr Dunne’s comments, but also told Mr Dunne at the meeting that he had agreed with him.

(c) The claimant took no steps to clarify matters himself or ascertain what, on his own version, was going to happen. He told the tribunal he regarded his application as urgent and was having a daily effect on him. He apparently made no mention of a matter that he regarded as urgent and affecting his daily life.

9. Nothing further happened until the claimant lodged tribunal proceedings in January 2011 alleging disability discrimination in the handling of his flexible working request and a breach of the statutory time period allowed for considering a flexible working request.

10. The claimant’s application was subsequently dealt with in April 2011 when his request was refused. His appeal was hearing in June 2011 by a panel chaired by Mr McAnaney. As part of that appeal process the panel found that there had been significant delay in processing the claimant’s application for flexible working and expressly accepted that the request was not considered within the statutory time-limits. The appeal panel also took into account that the initial request was not made in accordance with the Trust’s policy in reaching this conclusion.

11. The claimant subsequently presented a further claim for sex discrimination to the tribunal but he withdrew this claim at hearing.

The law

Disability discrimination

12. Insofar as is relevant the Disability Discrimination Act 1995 provides:-

“3A(5) A person directly discriminates against a disabled person if, on the ground of the disabled person’s disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities are the same as, or not materially different from, those of the disabled person.”

Section 4 provides:-

“4(1) It is unlawful for an employer to discriminate against a disabled person –

(a) in the arrangements which he makes for the purpose of determining to whom he should offer employment;

(b) in the terms on which he offers that person employment; or

(c) by refusing to offer, or deliberately not offering him, employment.

(2) It is unlawful for an employer to discriminate against a disabled person, whom he employs –

(a) in the terms of employment which he affords him;

(b) in the opportunities which he affords him for promotion, a transfer, training or receiving any other benefit;

(c) by refusing to afford him, or deliberately not affording him, any such opportunity; or

(d) by dismissing him, or subjecting him to any other detriment.”

13. In the case of Coleman v EBR Attridge Law, the European Court of Justice held that the prohibition of direct discrimination and of harassment laid down in the EC Equal Treatment Framework Directive (No 2000/78) is not limited to people who are themselves disabled. The Court held that where the person who is subject to discrimination on the ground of disability is not herself disabled, the fact remains that it is the disability which is the ground for the less favourable treatment which she claims to have suffered.

14. Under the terms of Article 112F of the Employment Rights (Northern Ireland) Order 1996 an employee may seek flexible working arrangements on certain specified grounds, including caring responsibilities for described persons. The employer must deal with the application within given time-limits. Failure allows the tribunal to award compensation up to a maximum of 12 weeks’ pay, such award to be the amount the tribunal considers just and equitable in all the circumstances.

15. The claimant’s claims for discrimination require that the claimant has lodged a statutory grievance. The requirements are governed by the Employment (Northern Ireland) Order 2003 and the Regulations made in 2004 pursuant to that Order. Whilst the grievance need not be in any particular form, it must be in writing and the complaint made must be essentially the same complaint as is subsequently advanced before the tribunal (see Canary Wharf Management v Edebi [2006] IRLR 416).

Conclusions

16. To succeed in his claims for disability discrimination the claimant must show that he made a written grievance. The claimant contended that his request for flexible working constituted such a written grievance. The tribunal cannot accept this submission. The claimant’s claim of disability discrimination relates to the manner in which his request for flexible was subsequently handled. The flexible working request cannot constitute a written grievance of the complaint in such circumstances. The claimant’s claim for disability discrimination must therefore fail. In any event, the tribunal is satisfied that the claimant has not met the burden of proof placed on him sufficient to transfer the burden of proof to the respondent. The claimant complains that the failure to consider the flexible working request he had made was an act of discrimination based on his daughter’s disability. The tribunal has found no evidence to substantiate that claim. Mr Dunne impressed the tribunal as a Ward Manager seeking to work with staff and find suitable arrangements, formal or informal, to meet individual needs whilst addressing the needs of the wards he managed. There is no evidence that the claimant’s daughter’s disability played any part in the decisions he made. He erroneously relied on a conversation with the claimant on 21 September 2010 not to take any further steps with the claimant’s flexible working request. However, the tribunal find that this was not tainted with discrimination.

17. The respondent acknowledged that a request was made for flexible working and recognised as such, not just at the time by Mr Dunne, that Miss McFadden and Mr McAnaney, but also by the appeal panel findings in June 2011. The tribunal find that the respondent failed to deal with the flexible working request within the statutory time-limits. In exercising its discretion as to the appropriate award for compensation, the tribunal took into account the actions or inactions of the claimant. The claimant told the tribunal he regarded his application as urgent and that it was having a daily affect on him. He did not know what would happen in six months time when he lodged his flexible working request. He was unsure what plans or arrangements to make relating to his daughter. Yet he handed in his flexible working request on 7 September 2010, had a meeting on 21 September 2010 at which he did not proceed with the advice to re-submit his flexible working application, made no further contact with anyone and raised no questions until issuing tribunal proceedings in January 2011 for failure to process the flexible working request.

18. It is impossible to say what might have happened had the claimant either made his request on the correct form, or reminded his line manager that he regarded his application as live. In these circumstances, the tribunal have determined that the appropriate amount of compensation is £1,500.00.

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

Chairman:

Date and place of hearing: 30.1.2012 – 1.2.2012, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Thompson v Western Health & Social Care T... Western Health & Social Care T... [2012] NIIT 00210_11IT (30 May 2012) URL: http://www.bailii.org/nie/cases/NIIT/2012/210_11IT.html Cite as: [2012] NIIT 00210_11IT, [2012] NIIT 210_11IT

Industrial Tribunals Northern Ireland Decisions