THE INDUSTRIAL TRIBUNALS

CASE REF:   726/17

CLAIMANT:			David McCracken

RESPONDENT:		Hovis Ltd

DECISION
The unanimous decision of the tribunal is that the claimant was not disabled for the purposes of the Disability Discrimination Act 1995 at the relevant time and that the claim of unlawful disability discrimination is therefore dismissed.

The unanimous decision of the tribunal is also that the claimant was fairly dismissed for misconduct.  However the circumstances of the case were not sufficient to justify summary dismissal and to displace the claimant’s entitlement to notice pay.  The claimant is therefore entitled to 12 weeks’ net pay amounting to £4,567.08.

Constitution of Tribunal:
Vice President:	Mr N Kelly
Members:		Mrs V Walker
			Mr B McAnoy

Appearances:
The claimant was represented by Mr F Lavery, Barrister-at-Law, instructed by Joseph McCollum & Company, Solicitors.
The respondent was represented by Ms K Moore, of the Engineering Employers’ Federation Northern Ireland.

Background

1.	The claimant had been employed as a salesman/driver by the respondent.  His job entailed delivering and selling bread products, usually loaves of bread, to various shops on his assigned run.

2.	The respondent is a large bakery.

3.	The shops on the claimant’s assigned run included seven Spar shops owned by the Henderson Group.

4.	That Group introduced charity stickers which were to be placed on some of the loaves provided by the respondent.

5.	The respondent agreed to place those stickers on some of the loaves which were sold by the respondent to the Henderson Group and which were delivered to Spar shops.  The driver/salesmen employed by the respondent, including the claimant, were instructed to place the stickers as requested by the Henderson Group.

6.	The claimant refused to comply with this request.

7.	Following an investigatory and a disciplinary process, the claimant was summarily dismissed on grounds of gross misconduct.

8.	The claimant had a medical condition; namely Dupytrens disease.

9.	The claimant alleges that:-

(a)	he had been a disabled person at the relevant time for the purposes of the Disability Discrimination Act 1995;

(b)	his dismissal had been an act of unlawful disability discrimination contrary to Section 3 A of the 1995 Act;

(c)	he had been unfairly dismissed for the purposes of the Employment Rights (Northern Ireland) Order 1996; and

(d)	he had been entitled to statutory notice pay of 12 weeks’ net pay under the 1996 Order.

Relevant law

Disability

10.	Section (1) of the Disability Discrimination Act 1995 provides:-

	“Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out day-to-day activities.”

11.	Paragraph 4(1) of Schedule 1 to the Act provides that an impairment is only to be taken as affecting the ability of the person to carry out normal day-to-day activities if it affects one of certain specified activities.  

12.	 The onus is on the claimant to prove that, in the relevant period, when the alleged acts of discrimination took place, he had been disabled, in the manner alleged, for the purposes of the 1995 Act.  In Ross  v  Precision Industrial Services Limited and DuPont NICA 2005, Kerr LCJ stated at Paragraph 39:-

	“The onus of establishing that he was substantially affected in manual dexterity and lifting ability rested squarely on the appellant.”

13.	In Goodwin  v  Patent Office [1999] IRLR 4 the EAT directed tribunals to answer four questions in determining whether an individual is disabled for the purposes of the 1995 Act:-

		(a)	Does the claimant have an impairment which is either mental or physical?

		(b)	Does the impairment affect the claimant’s ability to carry out normal day-to-day activities in one of the respects set out in Schedule 1 and does it have an adverse effect?

		(c)	Is the adverse effect substantial?

		(d)	Is the adverse effect long-term?

Unfair dismissal 

14.	The proper approach for an Employment Tribunal to take when considering the fairness of a misconduct dismissal is well settled and was considered by the Court of Appeal in Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47.  

15.	Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

“130-(1)	In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a)	the reason (or if more than one, the principal reason) for the dismissal and

(b)	that is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

			    (2)		a reason falls within this paragraph if it – 

						(b)	relates to the conduct of the employee, 

(4)	where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – 

(a)	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

(b)	shall be determined in accordance with equity and the substantial merits of the case.”

16.	The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin  v  Citybus Ltd [2008] NICA 42 where the Court held:-

“(49)	The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores  v  Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd  v  Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley  v  Post Office and HSBC Bank PLc (formerly Midland Bank) –v- Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury  v  Hitt [2003] ICR 111.

(50)	In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

	“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law.  We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

(1)	the starting point should always be the words of [equivalent GB legislation] themselves;

(2)	in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3)	in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4)	in many, though not all, cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, and another quite reasonably take another; 

(5)	the function of an industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band it is unfair.”
			
(51)	To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.  First of all, it must be established by the employer the fact of that belief; that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.  And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.  It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances.  It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in a criminal context, or, to use the more old fashioned term such as to put the matter beyond reasonable doubt.  The test, and the test all the way through is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

17.	In Bowater  v  North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal.  The employment tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal.                               Lord Justice Longmore stated at Paragraph 18 of the decision that:-

“I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case.  The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come.  But the employer cannot be the final arbiter of its own conduct in dismissing an employee.  It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”

	He continued at Paragraph 19:-

“It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET.  It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes, difficult and borderline decisions in relation to the fairness of dismissal.”

18.	In Fuller  v  London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal again considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer.  Lord Justice Mummery stated at Paragraph 7 of the decision that:-

“In brief the council’s case on appeal is that the ET erred in law.  It did not apply to the circumstances existing at the time of Mrs Fuller’s dismissal the objective standard encapsulated in the concept of the ‘range or band of reasonable responses’.  That favourite form of words is not statutory or mandatory.  Its appearance in most ET judgments in unfair dismissal is a reassurance of objectivity.”

	At Paragraph 38 of the decision, he continued:-

“On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council’s dismissal was outside the band or range of reasonable responses and that it was unfair.  If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller’s claim.”

19.	In Salford Royal NHS Foundation Trust  v  Roldan [2010] IRLR 721, the Court of Appeal again considered a decision of an Employment Appeal Tribunal which set aside the decision of an employment tribunal on the ground that that tribunal had substituted their judgment of what was a fair dismissal for that of a reasonable employer.  At Paragraph 13 of the judgment, Lord Justice Elias stated:-

“Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances.  In A  v  B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee.  So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite”

“In A  v  B the EAT said this:- Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers.  Of course even in the most serious cases it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiry should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.”

20.	It is important therefore for the tribunal to remember that it has a limited jurisdiction in relation to claims of alleged unfair dismissal.  It may not rehear and re-determine the disciplinary decision originally made by the employer; it cannot substitute its own decision for the decision reached by that employer.  In the case of a misconduct dismissal, such as the present case, the tribunal must first determine the reason for the dismissal:  ie whether in this case the dismissal was on the basis of conduct and must determine whether the employer believed that the claimant had been guilty of that misconduct.  The tribunal must then consider whether the employer had conducted a reasonable investigation into the alleged misconduct and whether the employer had then acquired reasonable grounds for its belief in guilt; not whether the tribunal would have reached the same decision on the same evidence or even on different evidence.  The tribunal must then consider finally whether the decision to dismiss was proportionate in all the circumstances of the case.   

Relevant findings of fact

21.	The claimant was employed as a salesman/driver.  His job was to both deliver bakery products to the shops on his assigned run and to sell those products to those shops.  He received a basic salary and commission.  That commission was affected by the sales that he managed to achieve.

22.	The claimant arranged his deliveries at the start of each shift.  Before loading his vehicle, he placed non-charity stickers on various loaves as required by the different shops on his assigned run.  These stickers were placed individually on the loaves by the claimant.  The stickers were provided to the claimant on a roll and were peeled off individually by the claimant before they were placed on the loaves.  Those stickers referred to prices or to sales promotions.  The claimant stated that he spent a significant amount of time each day undertaking this task before loading his vehicle and then delivering the loaves.  Some stickers were also placed on loaves by the claimant in the shops to which they had been delivered.

23.	The claimant did not complain at any stage about the placement of these price or promotional stickers.  He regarded this as part of his job.  They assisted in achieving higher sales and therefore assisted in increasing his commission.  He had never claimed that he suffered from a medical condition or from a disability which interfered with this task.  He had never sought a reasonable adjustment in relation to his duties in respect of this task.

24.	Henderson Group, which operates Spar and Eurospar shops, was a major customer of the respondent.  There were seven such shops on the claimant’s assigned run.

25.	In the summer of 2016, the Henderson Group arranged with the respondent for the stickering of some of five particular types of loaves with charity stickers.  Those stickers indicated that a 10p donation would be given to Tearfund when the product was purchased.  The stickers came in the same form as the price or promotional stickers, ie on a roll and were to be placed on the loaves in the same way.

26.	The respondent placed a notice in the restroom used by the driver/salesmen.  The notice stated:-

“Henderson Group (all Spar and Eurospar stores) across both company owned and independent stores are supporting the Tearfund charity through 10p loaf donations.  We have been asked to sticker Hovis (various types of loaves specified).

Where possible please sticker all front facing loaves on shelf with this sticker.  Please commence to sticker in all stores from Monday 26 September.”

27.	The notice specified that the exercise was to last from 26 September 2016 to 31 December 2016.  It therefore involved placing a limited number of charity stickers on five particular products in certain shops for a three month period.  It only involved front facing loaves on each shelf in the relevant shops.  It did not involve all the loaves delivered to the seven shops operated by the Henderson Group.

28.	On 12 October 2016, the claimant’s immediate line manager, Mr Darren Sloss, spoke to the claimant.  The claimant had refused to place the charity stickers on the loaves which he had delivered to shops operated by the Henderson Group.  He stated that it had not been part of his job and that he “wouldn’t be doing it”.  He stated that he “would fight it all the way”.  Importantly, he did not, at this point, argue that any medical condition was relevant to this decision or that it had had in any way played a part in this decision.  He did not argue that he would have experienced difficulty placing the additional number of stickers on the loaves.

29.	On 27 October 2016, the claimant was invited to an investigation meeting in relation to an alleged ‘failure to obey a reasonable instruction when you refused to put charity stickers on loaves of bread’.

30.	On 1 November 2016, the meeting took place chaired by Mr Sloss.  The claimant was assisted during that meeting by a colleague.  It was made clear to the claimant during that meeting that not every loaf needed to be stickered; only approximately 24 loaves per shop needed to be stickered.  All of that had already been made plain to him in the notice placed in the restroom.

31.	The claimant stated:-

“The stickering was to be done for charity.  I consider charity is a personal thing.”

32.	The claimant further stated:-

“Charity begins at home.”

33.	The claimant stated that he was already working ‘nearly up to my hours’.  His contracted hours were nine hours and 30 minutes including a 30 minute break.  He did not suggest that he had already met or had already exceeded those contracted hours.

34.	Once the claimant had argued that charity had been a personal matter and had argued that the task was onerous, he then alleged that a medical condition, Dupytrens disease, was made worse by stickering.  This was not a complaint which had been made previously in relation to those charity stickers and, significantly, it had not been a complaint which had been made previously in relation to the more onerous task of placing price and promotional stickers on loaves.  It appears to  the tribunal to have been very much an afterthought on the part of the claimant.

35.	Mr Sloss, properly, referred the claimant to Occupational Health.  The referral made it plain that an opinion was sought on whether the claimant’s medical condition had affected his ability to place stickers on loaves.

36.	The claimant continued to work and continued to place price and promotional stickers on loaves, without complaint.  He continued to refuse to place the charity stickers on the limited number of loaves requested by the respondent in the seven shops on his assigned run which were operated by the Henderson Group.

37.	On 2 November 2016, a manager of one of the seven shops e-mailed Henderson Headquarters to state that the claimant had said that he would not put the charity stickers on the loaves that he had delivered to that shop.  The manager further stated that the claimant had said that he had had a meeting with his management about this issue.

38.	Given that the claimant had already told the shop manager that he had discussed this issue with his own management, it is hardly surprising that a Nigel Duggan of Henderson Group forwarded the e-mail to the commercial director of the respondent and said:-

“Not a great attitude from this deliveryman.”

The matter was not formally expressed as a complaint but it was clearly an expression of concern from a major customer of the respondent and it could not have been ignored by the respondent as suggested by the claimant.

39.	The Occupational Health report was completed by an in-house nurse.  That nurse did not examine the claimant.  She spoke to him on the telephone.  She did not apparently have access to GP notes and records or to consultant medical reports.  She did not answer the specific question which had been put to her.  She stated that the claimant could fulfil ‘his role as a driver’ and that towards the end of his route, the claimant ‘experiences cramp in both hands and that this could occur with repetitive movement’.

40.	In the absence of any physical examination by the nurse, and in the absence of any access to medical records, the report could only have been a summation of what the claimant had told the nurse over the telephone.  The report does not mention stickering.  In cross-examination, the claimant could not remember whether stickering had ever been discussed in the course of this telephone conversation.  If, as the claimant now argues, his medical condition had impacted on his ability to sticker the limited number of loaves requested by the respondent, it is very odd that the claimant could not remember if this issue had been discussed.  The impact of his medical condition on his ability to sticker loaves had been the whole point of this discussion between the claimant and the Occupational Health nurse.

41.	No one in the respondent’s management went back to the nurse to ask her to address the specific question which had been put to her.  They regarded the reference to the claimant’s role as a driver as a reference which covered stickering.

42.	On 8 November 2016, the claimant was invited to a disciplinary meeting to answer the charge:-

“The allegation is that you wilfully failed and are continuing to wilfully fail to obey a reasonable management instruction by repeatedly refusing to put charity stickers onto loaves of bread as requested by the customer.”

43.	The disciplinary meeting was held on 11 November 2016, chaired by Mr David McDowell, the logistics operations support manager.  The claimant was asked whether he was refusing to sticker the loaves.  He stated:-

“Stickering for charity is not part of my job.  They don’t generate sales. I’ll go to my solicitor about it.”

“It’s not my job.  Who do Henderson’s think they are asking us to sticker?  I work enough hours.”

44.	It is apparent that the meeting was becoming heated at this point.  The meeting was adjourned by Mr Sloss for a recess.  When the meeting resumed, the claimant again refused to sticker the loaves as requested.  At that point he was suspended on full pay.

45.	The decision to have a recess to allow tempers to cool was a wise decision on the part of Mr Sloss.  Unfortunately it did not work.  However the decision taken by Mr Sloss, once the meeting had resumed, to suspend the claimant with pay seems odd.  It is difficult to see any precautionary motive that would have been served by a suspension at this stage.  The claimant could have continued in employment pending the outcome of the disciplinary meeting and arrangements could have been made in the short term to sticker the relevant loaves, or for the claimant’s assigned run to have been altered.

46.	The claimant was advised that the disciplinary meeting would reconvene on Tuesday at 11.00 am.  That was Tuesday, 15 November 2016, some four days later.  The claimant responded in what appears to have been a belligerent manner that he would attend that resumed meeting with his solicitor and that he would never back down to bullying.

47.	The meeting reconvened on 15 November 2016.  It was stressed during that meeting that the claimant was not being asked to place stickers on all the loaves in the seven shops.  He was been asked to sticker only the front facing loaves in each shelf in those shops.  The claimant still refused to comply with this instruction.  He stated that he did not think that the instruction was reasonable.  He stated that he had suggested an alternative; advertising boards.  He did not mention his medical condition as a relevant issue at this point.  He did not mention the medical condition at all.

48.	The claimant was told at the end of the meeting that he was dismissed.  He was not told that point that he was to be dismissed summarily (without notice).

49.	On the same day, a letter issued to the claimant dismissing him summarily for a ‘continuing wilful failure to obey a reasonable management instruction’.

The claimant was advised that he could appeal in writing to Mr McCutcheon, the logistics operations manager, within seven days, setting out the grounds for his appeal.

50.	On 16 November 2016, the claimant wrote to the respondent stating:-

“I wish to appeal the decision to terminate my employment. I make this appeal after taking legal advice.”

The claimant did not set out any grounds for his appeal.

51.	The letter of 16 November 2016 from the claimant was not located in the Human Resources Department of the respondent until 13 December 2016.  The tribunal accepts that this was a simple mistake on the part of the respondent.  Most of their business was done by e-mail and letters were simply placed in general pigeonholes.  Those holes tended to contain advertisements, circulars and newspapers.  They were not checked regularly.  There would have been no advantage to the respondent in the circumstances of this case in deliberately delaying the consideration of the appeal.

52.	On 13 December 2016, the respondent wrote to the claimant arranging an appeal meeting to be held on 20 December 2016.  Although they could have done, they did not take any point with the claimant that he had not set out the grounds for this appeal in his letter as clearly requested in his dismissal letter.  The respondent apologised for the delay in locating his letter.

53.	On 17 December 2016, the claimant wrote to the respondent’s stating:-

“I have instructed a firm of solicitors on my behalf, and they have forwarded a letter to you on my behalf.  As a result of my treatment I am not in a position to return to work as the working relationship has broken down irretrievably.  My solicitors have asked you to contact them with your proposals for compensation.  Therefore I do not want to pursue the possibility of reinstatement and I will not be proceeding any further with my appeal.”

54.	In a letter dated 16 December 2016, the claimant solicitors wrote to the respondent setting out at some length what they purported to be a grievance and seeking compensation.

55.	On 21 December 2016, the respondent replied that the correct process in relation to the dismissal was the appeal process.  They again offered an appeal meeting; in this case, on 4 January 2017.

56.	On 3 January 2017, the claimant’s solicitor replied to the respondent stating:-

“As you are aware, our client will be lodging an application with the Office of the Industrial Tribunals.  Our client is under no obligation to attend an appeal and will not be attending the appeal and you should expect to receive the application in due course.”

57.	On 16 January 2017, Mr Michael McCutcheon determined the appeal in the claimant’s absence and upheld the dismissal.  The grounds for that decision were the same as the grounds for the original dismissal.

58.	Another driver/salesman had refused to place the charity stickers on the relevant loaves.  That other driver/salesman had significant health difficulties and had been recovering from a stroke in 2014.  His problem was that, because of his health difficulties, he had insufficient time in his working day to place those additional stickers on the loaves.  He had no issue about the stickers being charity stickers rather than being price or promotional stickers.  He had already experienced significant difficulties in completing his work in his allotted hours.  In fact, on some days he had been working for 13 hours to complete his assigned run which was supposed to have been completed in nine hours and 30 minutes, including a break.  His run had been reduced and his working days were reduced first to four days and then more recently to three days as a reasonable adjustment in relation to a disability.

59.	That other driver/salesman was subject to a disciplinary hearing in the same way as the claimant.  However in view of his particular health difficulties and in view of his difficulties in completing his work within the allotted time, the result was that he had been given a later starting time and that his hours were reduced.  Since he had not refused to comply with the instruction but had genuinely been unable to comply with that instruction for reasons associated with a disability, he was not subjected to any disciplinary penalty.  The respondent did not regard his case as being in any real sense comparable to that of the claimant.  The tribunal agrees with that assessment.

Procedure

60.	This case has been case-managed and the witness statement procedure had been directed.  A timetable had been set for the exchange of witness statements which were to take the place of oral evidence-in-chief.

61.	The claimant sought permission to add a further witness, Mr McCormick, after the claimant had received the statements from the respondent.  That permission was granted.

62.	The tribunal heard four witnesses in total.  The claimant give evidence on his own behalf and Mr McCormick gave evidence at his request.  The respondent did not regard Mr McCormick’s evidence as relevant and he was not cross-examined.

63.	The respondent called Mr McDowell and Mr McCutcheon to give evidence.

64.	The evidence was heard on 22 and 23 August 2016. The parties made oral submissions at the end of the evidence on 23 August 2016.

65.	The panel met on 24 August 2016, to consider the evidence and the submissions and to reach a decision. This document is that decision.

Decision

Disability

66.	The respondent can be criticised for not clarifying the answers given by the Occupational Health nurse on 3 November 2016.  The nurse clearly had not directly or in any way addressed the question which she had been asked.

67.	Nevertheless, it is for the claimant to establish that he had been disabled for the purposes of the 1995 Act at the relevant time; ie during the investigation and disciplinary process.

68.	The claimant has failed to do so. He clearly has a progressive medical condition. However, none of the medical reports produced established anything more than a minor or trivial impact on manual dexterity.

69.	Crucially, the claimant had not argued that stickering, other than placing the charity stickers, had created a medical problem.  He had always performed price or promotional stickering for significant amounts of time each day.  He continued to do so, without complaint, even while he refused to sticker approximately 25 loaves in each of the seven shops which had been operated by the Henderson Group on his assigned run.

70.	If the claimant had had a genuine disability, at the relevant time for the purposes of the 1995 Act, it would have impacted on all stickering and it would have been raised as an issue by the claimant before it was raised. Even then, it had clearly been raised as an afterthought after the claimant had first argued that charity was a personal choice and after he had then argued about the amount of time to be undertaken in this task.

71.	The 1995 Act does not extend protection to everybody who suffers from minor aches and pains. The fact that an individual suffers from a progressive medical condition does not automatically mean that person is disabled for the purposes of the Act. That position will obviously alter over time. However there can be no automatic presumption that such an individual will be considered to be disabled for the purposes of the Act. The claimant has not discharged the onus of proof placed upon him.

72.	Even if the claimant had established that he had been disabled at the relevant time, for the purposes of the 1995 Act, the claim of disability discrimination would still have been dismissed.  The decision to discipline and ultimately dismiss the claimant had been based entirely on his conduct and had not been influenced at all by his medical condition.  Furthermore, even though the claim had never been argued as a ‘reasonable adjustment’ claim, the tribunal would have determined that no reasonable adjustment had been requested by the claimant and that no reasonable adjustment should have been provided by the respondent.  The claimant had at all times been able to place price promotional stickers on loaves without complaint or apparent difficulty.  There had been no difference in relation to the small number of charity stickers other than that they related to charity.  They were applied in exactly the same way and to a considerably lesser extent.

73.	The claim of unlawful disability discrimination is therefore dismissed.

Dismissal

74.	The tribunal is satisfied that the reason for the dismissal had been conduct.

75.	The tribunal has to be careful to avoid ‘substitution’, ie putting itself in the role of the employer and then deciding what decision it would have reached in all the circumstances of the case.  Instead, a tribunal must determine whether a reasonable employer, acting reasonably, could have dismissed the claimant in all the circumstances of the case.  This is an objective rather than a subjective test.  

76.	The respondent had given the claimant several opportunities to agree to comply with the instruction.  The instruction had clearly always been to place stickers on a limited number of loaves, in a limited number of shops, for a limited period.  On any objective measure, it involved a few minutes extra work each day and was well within the claimant’s contractual hours.  Even on the claimant’s estimation of the time involved, which appears, in any event, to be exaggerated, the claimant would only have exceeded his contractual hours by five minutes daily.

77.	The claimant’s main objection appears to have been that the stickers had been for charity.  He objected to being asked to donate his time to charity.  However that time had been, in reality, within his contractual hours and had been paid for by the respondent.  It had been a reasonable management instruction.

78.	That said, the claimant had 34 years’ service.  This was not the sort of matter which would generally justify a dismissal for a first offence.  However, the claimant had repeatedly refused to comply, and he made it plain that he would continue to refuse to comply, with the instruction.  A warning would not have been effective.  A suspension without pay would not have been effective.  He would have continued to refuse to comply with the instruction.  That instruction was part of an arrangement that the respondent had reached with a major customer.  If the respondent did not deal effectively with this matter, it could only have impacted on its relationship with that customer.  

79.	In the opinion of the tribunal, a reasonable employer could have reasonably dismissed the claimant in these circumstances.  The claim of unfair dismissal is therefore dismissed.

80.	The 1996 Order provides for the payment of statutory notice on dismissal.  Under Article 118(6), that right can be set aside where the circumstances are such as to justify summary dismissal.  Setting aside the statutory right to notice, particularly in relation to an employee with 34 years’ service, is not something to be done lightly.  

81.	In this case, the reality is that a long-serving employee with an excellent record had allowed himself to adopt an intransigent and belligerent attitude.  He regarded this minor issue as an issue of principle and effectively talked himself out of a job.  It is a pity that the claimant was not a member of a trade union.  A trade union official might have been able to talk some sense into him.  He had clearly dug his heels in with management on this particular issue.  

82.	Another employer, on a different day, might have offered a compromise or might have arranged for someone else to have stickered the offending loaves.  It might have avoided all of this.  However a reasonable employer could reasonably, just about, have dismissed the claimant in all the circumstances of this case.  That is an end of the matter in relation to the claim of unfair dismissal.  However, the circumstances of the case were not sufficient to justify a summary dismissal and to set aside the statutory right to notice pay.  The claimant had still been performing the bulk of his duties and had a good record and long service.

83.	The tribunal therefore awards 12 weeks’ net pay as statutory notice:-

		£380.59 x 12 			=			£4,567.08

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

Vice President

Date and place of hearing:	22 – 23 August 2017, Belfast

Date decision recorded in register and issued to parties: