Bonnar v Bond Search and Selection Ltd [2017] NIIT 01216

THE INDUSTRIAL TRIBUNALS

CASE REFS: 1216/16

1653/16

1794/16

CLAIMANT: Rory Bonnar

RESPONDENTS: 1. Bond Search and Selection Ltd

2. Bernard Rooney

3. Jonathan St. Clare

DECISION

The unanimous decision of the tribunal is that:

1. The claimant was not at the material time a disabled person within the meaning of the Disability Discrimination Act 1995. The claim of discrimination on the grounds of disability is therefore dismissed;

2. The claimant was not unfairly dismissed;

3. The claims of victimisation and harassment on the grounds of disability are dismissed;

4. The second-named respondent and the third-named respondent are dismissed from the proceedings regarding the claimant's claim for unpaid commission. The first-named respondent is ordered to pay to the claimant the sum of £510 by way of unpaid commission. The respondents' counterclaim for holiday pay paid in advance to the claimant is dismissed.

Constitution of Tribunal:

Employment Judge: Employment Judge Browne

Members: Mrs F Cummins

Mr E Grant

Appearances:

The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by Worthingtons Solicitors.

The respondent was represented by Ms A Finnegan, Barrister-at-Law, instructed by J Blair Employment Law Solicitors.

EVIDENCE AND FINDINGS OF FACT

In determining the findings of fact, the tribunal drew upon the oral evidence and the written materials adduced at the hearing.

1. The claimant was employed by respondents 2 and 3 at their recruitment business, respondent 1, as a senior recruitment consultant, from 9 November 2015 until his dismissal on 6 April 2016.

2. The claimant therefore did not meet the qualifying period of twelve months' continuous employment required by Article 140 of the Employment Rights (Northern Ireland) Order 1996. It was however accepted by the respondents that, if the dismissal was for a reason which was discriminatory (in this case, disability), and not for the reason advanced by the respondent, the dismissal gives rise to an actionable cause.

3. In short, the respondents' case was that the claimant was dismissed because he illicitly transferred material from the respondents' business database to his personal email account, in contravention of clause 14.2 of his contract of employment.

4. The claimant's case is that he was dismissed because, upon seeking reasonable adjustments in relation to his disability, following upon surgery during his period of employment by the respondents.

5. That surgery was to correct a disc prolapse arising from a pre-existing medical condition, of which he had advised the respondents before they offered him the post of senior recruitment consultant. He had also informed them of the likelihood of requiring surgery to attempt to rectify it, as previous medical interventions had failed to resolve it.

6. The tribunal considered and weighed a considerable amount of medical evidence, all adduced by the claimant.

7. The tribunal also had to consider and weigh the credibility of the claimant, in relation to the extent of his medical incapacity; and generally, regarding both his and the respondents' credibility, regarding his alleged disability and the other heads of claim in this case.

8. It was, in effect, the respondents' case that the claimant fabricated the degree of his incapacity in order, first, to bolster and enhance the value of his civil claim arising from the road traffic accident in June 2014; and later to ground a case of unfair dismissal on the grounds of his disability when he, in their view, in truth was dismissed because of his gross misconduct, and did not have the requisite period of service otherwise to ground an unfair dismissal claim.

9. The evidence from both sides in this case revealed what appeared to the tribunal to be a deep-seated animosity between both the claimant and the respondents.

10. It was the claimant's case that between starting work for the respondents on 9 November 2015 and the time of his surgery in March 2016, he had endured significant episodes at work of extreme pain and incapacity due to his back injury sustained in the road traffic accident in June 2014. He claimed that he on occasion had to stand and move around the office because the pain meant he could not sit at his desk for a long period. He also claimed that he on a number of occasions during that period the pain had been so acute that he had had to lie on a sofa in the reception area of the respondents' offices.

11. Mr Bernard Rooney and Mr Jonathan St Clare, respectively the second and third respondents, who between them own the first respondent, Bond Search and Selection Ltd, gave evidence that they had never witnessed him doing so, and had never been told of it by the claimant or anyone else. No evidence was called by any party to confirm or refute the claimant's assertions in that regard.

12. The principal source of evidence on the claimant's behalf as to the degree of his medical condition and its treatment was Mr E A Cooke, consultant orthopaedic surgeon.

13. Mr Cooke had first examined the claimant on 4 March 2015, for the purposes of a civil claim brought by the claimant as a plaintiff, arising from the claimant's injuries sustained as the injured party in a road traffic collision on 26 June 2014. In his subsequent report of 30 July 2015, Mr Cooke recorded that the claimant complained to him that "the pain is worse in the morning, when he is stiff and sore, and tends to be worse when sitting or standing for long periods. He states that his leg feels week and numb in the mornings, and he could have pain when driving long distances, and, if he is driving for a long period, he tends to stop and take a break. He is unable to train because of this pain."

14. The training referred to would appear to be training for the sport of hurling, which the claimant had greatly enjoyed playing competitively, but had given up because of his injuries.

15. The claimant however made no mention to Mr Cooke that, immediately prior to his consultation on 4 March 2015, had driven from his address in Belfast to play competitive golf at his home course in Ballycastle on 14 February, 21 February and 28 February 2015.

16. Mr Cooke conceded in his evidence to the tribunal that the claimant had made no mention to him about recently playing golf.

17. Mr Cooke next examined the claimant on 6 January 2016, again for the purposes of the claimant's injury claim. Mr Cooke then recorded in his report of 22 February 2016 that the claimant " ....describes a constant pain radiating from the lower back and down the right buttock, posterior aspect of the right leg to the heel. The pains are worse when standing or sitting, and he has difficulty in getting out of bed in the mornings. He finds that bending forward when he is sitting causes low back pain and right sciatica, and he is limited in walking and is unable to participate in exercise. His right anterior thigh is numb when he is carrying out exercises given to him by a physiotherapist..." .

18. The debilitating symptoms described by the claimant to Mr Cooke of sciatic pain and back pain were those which the claimant asserted to the tribunal to be the cause of such pain and discomfort that he was unable to carry out his day-to-day activities at work, such as sitting, bending and walking.

19. The claimant again did not mention to Mr Cooke that he had played competitive golf at Ballycastle on 2 January 2016, just four days before their consultation.

20. Mr Cooke again examined the claimant for the purposes of this tribunal claim on 21 November 2016, at which he recorded that the claimant "states that since his surgery in March 2016 and subsequent rehabilitation his symptoms are markedly improved. His leg pain has almost completely resolved, but he still complains of some low back pain. He has been able to reduce his [medication] to low doses. He is able to walk without hindrance, but still has difficulty bending and lifting and in sitting for long periods and has not yet returned to sporting activities."

21. It is of note again in this regard that the claimant made no mention to Mr Cooke on 21 November 2016 that he had played competitive golf at Ballycastle on
3 September, 10 September, 11 September, 17 September, 1 October, 8 October, 15 October, 22 October, 5 November, 12 November and 19 November 2016.

22. Mr Cooke, in his evidence to the tribunal considered that, whilst the claimant was unwise to play golf while suffering the symptoms he described to Mr Cooke, the claimant's failure to mention the fact that he was playing competitive golf, or even playing regularly, or at all, to Mr Cooke was not inconsistent with the narrative provided to him by the claimant.

23. Mr Cooke also gave evidence that, had the claimant told him he was playing any golf, he would have told him not to, as it was unwise. Mr Cooke also said that he would have preferred it had the claimant told him about playing golf.

24. Mr Cooke conceded that exaggeration of symptoms is always a possibility, but he conducted a number of tests on the claimant, designed to provide indicators of such exaggeration, which in his opinion did not reveal any fabrication by the claimant.

25. He also expressed the view that he could not understand why the claimant would have subjected himself to two intrusive surgical procedures, which carried no guarantee of success, and which in fact might have carried significant risk to the claimant's health, unless there had been a genuine need to do so.

26. Mr Cooke conceded, in response to questions on the point that the symptoms complained of by the claimant which he alleged gave significant pain and mobility problems during the week upon his return to work after his surgery might well have been caused or aggravated by playing golf at the weekend.

27. Mr Cooke also agreed that any such damage to or aggravation of the claimant's condition caused by playing golf which did not heal during the working week would further be aggravated by playing golf the following week. Medication taken by the claimant would only mask the symptoms, not resolve the underlying weakness, therefore continuing to play golf in such circumstances was described by Mr Cooke as an aggravating activity.

28. The claimant was asked in cross-examination about his golfing activities, which had come to light through the respondents' enquiries in preparation for this case. It was put to him that playing golf requires a significant amount of bending, twisting and swivelling of the very areas of his body most affected by the symptoms he described in his evidence to the tribunal as adversely affecting his ability to work, and which he used as the basis for claiming his inclusion within the statutory definition of disability.

29. He was also challenged in cross-examination as to why he did not reveal the fact, extent or frequency of his golfing activities to either his own GP or to Mr Cooke.

30. He was also challenged about his assertion that he regularly used a golf buggy at Ballycastle Golf Club, including during the winter months. Evidence was called on behalf of the respondents that the club's records showed no use by the claimant of a golf buggy at any time. There was also evidence that the Golf Club did not permit the use by anyone from November to February, on the grounds of health and safety. The claimant was afforded the opportunity to call evidence which he claimed would rebut both aspects of the respondents' evidence about use of the golf buggy, but he was unable to do so.

31. The claimant sought to explain not mentioning his golfing activities to Mr Cooke or to his GP by saying that he did not regard golf as being a strenuous activity. The claimant stated that he had discussed his golfing activities many times with his consultants, whose advice had been that it he could continue to play, as long as he did not stress himself physically when doing so. He did not state that one of the consultants with whom he discussed it was Mr Cooke, stating that he did not know why he had not mentioned it to him, conceding that, upon reflection, he ought to have mentioned it to Mr Cooke.

32. The credibility of the claimant was also challenged by the respondent arising from incorrect entries in his car insurance application form, in which he gave his address as being in Ballycastle; he stated that the car was there overnight; and he did not disclose in it that he had a disc prolapse.

33. The claimant sought to explain these issues by stating that he had consulted his GP about including reference to the disc prolapse. He stated that his GP said it was not necessary to do so, but could provide no explanation as to why there was no record of any such conversation in his GP's notes and records.

34. He stated that any other omissions or errors were due to the fact that his insurance broker had filled in the form, using information from his previous applications.

THE DEFINITION OF DISABILITY AND CONCLUSIONS

35. (i) The meaning of "disabled person" is set out in Section 1 of the Disability Discrimination Act 1995 (hereinafter called the DDA) which provides that:-

"(1) 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 normal day-to-day activities.

(2) In this Act "disabled person" means a person who has a disability."

Section 2 of the DDA provides in relation to past disabilities:-

"(1) The provisions of this Part and Parts II and III apply in relation to a person who has had a disability as they apply in relation to a person who has that disability. ...

(4) In any proceedings under Part II or Part III of this Act, the question whether a person had a disability at a particular time ("the relevant time") shall be determined, for the purposes of this section, as if the provisions of, or made under, this Act in force when the act complained of was done had been in force at the relevant time. ...

(5) The relevant time may be a time before the passing of this Act".

(ii) Section 3 of the DDA enables the Secretary of State to issue guidance about the matters to be taken into account in determining a number of issues likely to arise in disability discrimination cases, including whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities; or whether such an impairment has a long-term effect.

(iii) Section 3(3) of the DDA provides that a tribunal or court determining, for any purpose of this Act, whether an impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities, shall take into account any guidance which appears to it to be relevant.

(iv) Paragraph 4(1) of Schedule 1 to the DDA provides that an impairment is to be taken to affect the ability of the person concerned to carry out normal day- to-day activities only if it affects one of the following:-

(a) mobility;

(b) manual dexterity;

(d) continence;

(e) ability to lift, carry or otherwise move everyday objects;

(f) speech, hearing or eyesight;

(g) memory or ability to concentrate, learn or understand; or

(h) perception of the risk of physical danger.

(v) The tribunal considered the following case law:- Morgan v Staffordshire University [2002] IRLR 190 EAT; Hospice of St Mary of Furness v Howard [2007] IRLR 944; Abadeh v British Telecommunications PLC [2001] IRLR 23 EAT; Goodwin v Patent Office [1999] ICR 302 1999 IRLR 4 EAT; ChacÓ n Navas v Eurest Colectividades SA [2006] IRLR (ECJ), C13/05 .

In deciding whether a person has a disability within the meaning of the Act, the tribunal must address the four questions set out in the case of Goodwin v The Patent Office 1999 IRLR 4, namely:-

(a) Does the claimant have an impairment which is either mental of 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 Paragraph 4(1) of the 1995 Act and does it have an adverse effect?

(d) Is the adverse effect long term?

(vi) The onus is on the claimant to prove that he has or had a disability within the meaning of the 1995 Act at the time of the alleged discriminatory act which gave rise to his complaint (the relevant time). The respondent disputed that the claimant had such a disability.

The duty to make reasonable adjustments arises by virtue of Section 4A of the 1995 Act. It provides:-

"(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 it is reasonable, in all the circumstances of the case, for him to take in order to prevent the provision, criterion or practice, or feature, having that effect."

(vii) The factors to be taken into account by a court or tribunal in determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make a reasonable adjustment and a non-exhaustive list of examples of reasonable adjustments are set out at Section 18B of the Act, and we do not repeat them here. Whether something is a reasonable adjustment is for tribunal to decide, objectively, on the facts of the particular case. (See : Smith v Churchill Stairlifts PLC [2006] IRLR 41 CA).

Also, the making of a reasonable adjustment does not lead to the situation where everything remains the same for a claimant. Taylor v Dumfries & Galloway CAS [2007] SLT 425).

(viii) The duty to make reasonable adjustments is extremely wide in scope. This is clear from the judgment of Baroness Hale in Archibald v Fife Council [2004] IRLR 65.

"It is ... common ground that employers are only required to take those steps which in all the circumstances it is reasonable for them to have to take. Once triggered, the scope of the duty is determined by what is reasonable, considered in the light of the factors set out in Schedule 6(4) ..."

(ix) Regard must also be had to the guidance given to tribunals in Environment Agency v Rowan [2008] IRLR (EAT) where His Honour Judge Serota stated, at paragraph 27, that a tribunal considering a claim that an employer has failed to make a reasonable adjustments must identify:-

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

(b) the physical feature of premises occupied by the employer; or

(d) the nature and extent of the substantial disadvantage suffered by the claimant. It should be borne in mind that identification of the substantial disadvantage suffered by the claimant may involve a consideration of the cumulative effect of both the 'provision, criterion or practice applied by or on behalf of the employer and the physical feature of premises', so it would be necessary to look at the overall picture.

In our opinion, an employment tribunal cannot properly make findings of a failure to make reasonable adjustments without going through that process. Unless the employment tribunal has identified the four matters we have set out above, it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, placing the disabled person concerned at a substantial disadvantage."

(x) Before turning to the burden of proof we remind ourselves that direct evidence of discrimination (of any type) is rare and courts and tribunals will frequently have to infer discrimination from the facts which they have found. Furthermore, we have kept in mind in reaching our decision that discrimination in the particular context of disability can often take place where an employer makes assumptions, based on stereotypes, about a person's disability. (See: Aylott v Stockton-on-Tees BC [2010] EWCA Cir 90 CA).

(xi) Section 17A(1C) sets out the burden of proof in disability discrimination cases. Following the now common formula set out in legislation outlawing other forms of discrimination, it provides as follows:-

"Where, on the hearing of a complaint, under sub-section (1), the complainant proves facts from which the tribunal could, apart from this sub-section, conclude in the absence of a adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves he did not so act."

(xii) In Igen Ltd (formerly Leeds Careers Guidance) and Others v Wong; Chamberlain Solicitors and Another v Emokpae; and Brunel University v Webster [2005] IRLR 258, the Court of Appeal in England and Wales has set out guidance on the interpretation of the statutory provisions shifting the burden of proof in cases of sex, race, and disability discrimination. This guidance is now set out in full at an Annex to the judgment in the Igen case. We therefore do not set out again in full, but have taken it fully into account.

(xiii) In short, the claimant must prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed an unlawful act of discrimination. The tribunal will also consider what inferences it is appropriate to draw from the primary facts which it has found. Such inferences can include inferences that it is just and equitable to draw from the provisions relating to statutory questionnaires, a failure to comply with any relevant Code of Practice, or from failure to discover documents or call an essential witness.

(xiv) If the claimant does prove facts from which the tribunal could conclude in the absence of an adequate explanation from the respondent that the latter has committed an unlawful act of discrimination, then the burden of proof moves to the respondent. To discharge that burden the respondent must show, on the balance of probabilities, that the treatment afforded to the claimant was in no sense whatsoever on a proscribed ground (here disability). The tribunal must assess not merely whether the respondent has provided an explanation for the facts from which inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that disability was not a ground for the treatment in question. Since the facts necessary to prove an explanation will normally be in the possession of a respondent, a tribunal will normally expect cogent proof to discharge the burden of proof.

(xv) Although the above logically establishes a two-stage process, it is not to be applied slavishly or mechanically, and in deciding whether the claimant has made out a prima facie case the tribunal must put to one side the employer's explanation for the treatment, but should take into account all other evidence, including evidence from the employer. (See: Laing v Manchester City Council [2006] IRLR 748 EAT; Madarassy v Nomura International Ltd [2007] IRLR 246; and Arthur v Northern Ireland Housing Executive and Anor [20070] NICA 25).

These cases were considered more recently by HM Court of Appeal in Northern Ireland in Curley v Chief Constable of the Police Service of Northern Ireland and Anor [2009] NICA 8 and Nelson v Newry & Mourne District Council [2009] NICA 24.

In the former, Coughlin LJ at paragraph 16 of his judgment emphasised the need for tribunals hearing cases of this nature to keep firmly in mind that such claims are grounded upon an allegation of discrimination (in that case religious discrimination). This was re-emphasised by Girvan LJ at paragraph 24 of the judgment in the latter case.

(xvi) More specifically, in relation to the duty to make reasonable adjustments, the burden of proof was considered in Project Management Institute v Latif [2007] IRLR 579. In Harvey on Industrial Relations and Employment Law, the position is summarised as follows:-

"... [T]he EAT held that a claimant must prove both that the duty has arisen, and also that it has been breached, before the burden will shift, and require the respondent to prove that it complied with the duty. There is no requirement for claimants to suggest any specific reasonable adjustments at the time of the alleged failure to comply with the duty; in fact it is permissible ... for claimants to propose reasonable adjustments on which they wished to rely at any time up to and concluding the ... hearing itself."

(xvii) As Brian Doyle in his leading text book 'Disability Discrimination Law and Practice' stated at Paragraph 2.4.3:-

"Expert evidence of what the claimant can and cannot do (and the circumstances of that capacity) will be important. Often this will be in the form of a report or evidence from a medical specialist (such as a consultant or an occupational health professional). However, the tribunal must not delegate the decision as to what are normal day-to-day activities to the expert witness. That is a judicial decision, to be arrived at using basic common sense, in the light of the evidence, the statute and the revised guidance. But there is a Catch 22 for many claimants in arguing that they are sufficiently disabled to be covered by the DDA 1995, but not so disabled as to be prevented from carrying out, for example, the duties of employment. Yet, as a matter of principle, evidence of the nature of the claimant's duties of work and the way in which they are performed can be relevant to the assessment of whether the claimant is a disabled person. (Law Hospital NHS Trust v Rush [2001] IRLR 611; Cruickshank v VAW Motorcast Ltd [2002] IRLR 24 duties while at work will often encompass normal day-to-day activities. At the very least, evidence of ability or inability to carry out normal day-to-day activities while at work goes to the credibility of any evidence that those activities cannot be carried on outside work (or can only be done so with difficulty)."

36. The Equality Commission for Northern Ireland Disability Code of Practice Employment and Occupation indicated day to day activities, which is not defined, are activities which are carried out by most people on a fairly regular and frequent basis and was not intended to include activities which are normal only for a particular person. In Patterson v Commissioner of Police of the Metropolis (2007) IRLR 763, it was held if the impairment is of the kind described in Paragraph 4 of schedule 1 that it is almost inevitable it will have an adverse effect on normal day to day activities. In the 2010 guidance, in GB, reference is made, in so far as may be of interest for these proceedings:-

"In general, day to day activities are things people do on a regular or daily basis and examples, include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport and taking part in social activities."

37. Following Patterson it is apparent that evidence about what an individual could or could not do at work can be particularly relevant if some of his or her activities constitute what most would regard as 'normal day to day activities'. In Patterson, it was held that in order to give full effect to European law the term normal day to day activities had to be read so as to encompass the activities which are relevant to participation in professional life. Generally, therefore, normal day to day activities do not include work of any particular kind because no particular form of work is 'normal' for most people.

38. This issue of disability is for the tribunal to determine on the basis of the available evidence and experts cannot usurp the tribunal's role. The tribunal, in light of the foregoing, first requires to assess whether, as a general proposition, the activities in question are normal day to day activities and, if so, the tribunal should then assess whether, in the particular case, the claimant's ability to undertake these activities is substantially adversely affected by the relevant impairment.

39. Having determined and examined the relevant law, the tribunal proceeded to apply it to the facts found.

40. The tribunal is satisfied that the claimant during the time between starting work for the respondents and the time of his dismissal periodically suffered significant pain and discomfort as a result of his ongoing back problem.

41. The tribunal finds however that the claimant was an unreliable witness as to the extent of the adverse effect of any physical impairment arising from that pain and discomfort on his ability to carry out normal day to day activities.

42. The tribunal found that Mr Rooney demonstrated in his manner when giving evidence little but a visceral dislike of the claimant, and gave the clear impression of being contemptuous of being challenged in his evidence to the tribunal.

43. Mr St Clare appeared to the tribunal to be more measured in his attitude towards the claimant, but the tribunal formed the view that both men were less than candid in the evidence they provided. Their behaviour in the dismissal of the claimant and in their refusal to allow him to appeal against it rode roughshod over even the most rudimentary notions of due process or even basic fairness.

44. Their attempts to justify to the tribunal their conduct in that process were unconvincing in the face of a complete dearth of any attempt by them to follow or even to seek advice on how to manage the situation which erupted on 4 and 5 April 2016, culminating in the dismissal of the claimant.

45. As such, the tribunal approached the reliability of their evidence with great caution. The tribunal found from the objective evidence however, such as the text messages and emails between Mr St Clare and the claimant before and during his absence to have his operation, that Mr St Clare had been much more supportive before, during and after the claimant's operation than the claimant would have had the tribunal believe.

46. The tribunal found that the claimant had probably lied in his evidence as to the extent of the adverse effects of his back problems on his ability to carry out day to day activities. Whilst he was superficially plausible in giving his evidence, the tribunal had regard to the disparities between what he said and the plain inferences to be drawn from the records. The tribunal's assessment of his evidence did not include the respondents' assertion that he was lying to bolster his civil claim.

47. The most glaring disparity between the claimant's assertions and the objective evidence was his golfing activities. He regularly drove from Belfast to Ballycastle and played competitive golf at weekends, despite apparently struggling to manage even the most basic physical activities at work during the week. That fact of itself comprehensively undermined any notion that the claimant's ability to carry out any of the normal day to day activities listed in Schedule 1 to the Disability Discrimination Act 1995 was impaired.

48. His assertion that he regularly used a golf buggy was in the view of the tribunal not credible. The club records showed no evidence that he had ever used one; the club rules prohibited the use of buggies at a time of year when he said he used them; and the evidence in rebuttal of the respondents' independent evidence did not materialise.

49. In addition to this, the absence of any evidence of the claimant to even mention his golfing activities to Mr Cooke or to his own GP was in the view of the tribunal inexplicable. The claimant claimed on the one hand that he had previously discussed playing golf with his consultants, who had raised no objections.

50. Those alleged discussions sat uncomfortably with the lack of any mention of playing golf when speaking to Mr Cooke, not least because the claimant had in fact been playing competitive golf in the days before he met Mr Cooke. It appeared to the tribunal to be an issue which would have been an obvious topic to be mentioned by the claimant, either by way of seeking Mr Cooke's guidance, or to give Mr Cooke a clearer picture of the claimant's physical condition.

51. The tribunal concludes that the only credible explanation for the claimant's failure in that regard is that he was deliberately misleading Mr Cooke to suit his own ends.

52. The tribunal found the errors and omissions in the insurance policy application form to be another indicator of the claimant's lack of credibility. Whilst the contents of that form have no direct bearing upon the issues in this case, the claimant's reaction to the flaws in it was in the view of the tribunal consistent with his tactics when confronted with the questions arising from his golfing activities and his failure tell Mr Cooke about them.

53. As regards the insurance policy, the claimant blamed his insurance broker for supplying incorrect information as to where he lived and as to the garaging of the car. He also claimed that his GP had advised him he did not need to include reference to his prolapsed disc, despite the fact that he elsewhere claimed that his ability to drive long distances was adversely affected by it, and there was no note in his GP's records that any such conversation had taken place.

54. As regards his golf, the fact that he had been playing at all was only revealed by the endeavours of the respondents in preparation for the hearing of this case. When challenged in cross-examination about his proven ability to play golf despite his alleged disability, he responded by claiming that he regularly used a golf buggy, even in the winter months. When it was pointed out that there were no records of him having done so, and that the club rules prohibited it during the winter, the claimant alluded to a special arrangement with the club professional. When afforded the opportunity to produce evidence of this, none was provided to the tribunal.

55. From the above instances, the tribunal concluded that the claimant, when confronted with inconvenient facts which undermined his case, unhesitatingly fabricated another layer of untruth in an attempt to shore up the initial fabrication he could see disintegrating under the accumulated weight of objective fact.

56. The tribunal does not lightly disregard the evidence of Mr Cooke, whose credentials and credibility are not in doubt. The tribunal is of the opinion however that it is likely he was substantially misled by the claimant. The tribunal has concluded from its findings above that the claimant repeatedly exaggerated and in some instances fabricated his symptoms in his sworn evidence. It therefore appears likely to the tribunal that he did the same in his consultation with Mr Cooke. The claimant had probably at times since his road traffic accident suffered from symptoms consistent with those he later described and demonstrated to Mr Cooke, thereby enabling the claimant to evade any suspicion of fabrication. The tribunal considers in that context that the claimant's omission of any reference to playing golf was deliberate, as part of his deception of Mr Cooke.

57. The tribunal therefore concludes that the claimant has failed to discharge the burden of establishing on the balance of probabilities that he at the relevant time had a disability within the meaning of the Disability Discrimination Act 1995. His claim of discrimination on the grounds of disability is therefore dismissed.

58. As referred to at paragraph 2 above, the only ground upon which the claimant could have succeeded in his claim for unfair dismissal was to establish that his dismissal arose from his disability. In light of the tribunal's finding on that issue, his claim for unfair dismissal cannot succeed, and it is dismissed.

THE LAW OF VICTIMISATION AND HARASSMENT AND CONCLUSIONS

59. (i) Section 55 of the Disability Discrimination Act 1995, as amended by Regulation 21 of the Disability Discrimination Act (Amendment) Regulations (Northern Ireland) 2004 contains the standard provision relating to victimisation which mirrors identical provisions found in other legislation outlawing discrimination on various grounds both in this jurisdiction and more widely throughout the United Kingdom.

(ii) Victimisation arises where a claimant has performed a 'protected act'. The claimant must identify an appropriate comparator and the doing of the protected acts must be the cause of the less favourable treatment. The appropriate comparison is between the claimant and someone who has not done a protected act. (See Chief Constable of West Yorkshire Police v Khan [2007] ICR 2065 HL.)

In Simpson v Castlereagh Borough Council [2014] NICA 1, Girvan LJ stated, at Paragraph 14 of his judgment that:-

"A tribunal determining the question of victimisation must address the issues, firstly, whether the claimant suffered a detriment, and, secondly, whether she was subjected to less favourable treatment as compared to an actual or hypothetical comparator by reason of the fact that she had done a protected act."

(iii) More recently, in McCann v Extern Organisation Ltd [2014] NICA 65, Horner J at Paragraphs 14, 15 and 17 summarised the law on victimisation as follows:-

The IDS Handbook states at Paragraphs 9.41 and 9.42:-

'9.41 To succeed in a claim of victimisation, the claimant must show that he or she was subject to the detriment because he or she did a protected act or because the employer believed he or she had done or might do a protective act ...

9.42 .... The essential question in determining the reason for the claimant's treatment is always the same: what consciously or sub-consciously motivated the employer to subject the claimant to the detriment? In the majority of cases, this will require an inquiry into the mental processes of the employer ...'

(iv) As Harvey said at Paragraph [468] in respect of the test for victimisation -

'Analysing the elements of any potential victimisation claim requires somewhat different considerations as compared to the other discrimination legislation.

...

A claim of victimisation requires consideration of:-

The protected act being relied upon

The correct comparator

Less favourable treatment

The reason for the treatment

Any defence

Burden of proof'

(v) As Harvey says at Paragraph 488:-

'The key issue in such situations will be the tribunal's understanding of the motivation (conscious or unconscious) behind the act by the employer which was said to amount to victimisation.'."

(vi) The following points should also be noted about victimisation. In Nagarajan v London Regional Transport [1999] ICR 877, the House of Lords, reversing the Court of Appeal, held that in complaints of victimisation (in that case under similar provisions in the Race Relations Act) the motive of the alleged discriminator was irrelevant, and that the question to be asked was a simple causative one, namely whether the claimant would have been treated in that way but for the protected act. Therefore conscious motivation is not a necessary ingredient in victimisation. A subconscious motive is sufficient.

60. Additionally, whether the actions of the alleged discriminator constitute victimisation depends on the perception of the employee who alleges victimisation. However, the perception must be reasonable. (See : Derbyshire v St Helen's Metropolitan BC [2007] UKHL 16; Northern Ireland Fire and Rescue Service v McNally [2012] Eq LR 821 NICA).

61. As far as harassment is concerned, Underhill J, as he then was, in Richmond Pharmacology v Dhaliwal [2009] IRLR 336 (a racial harassment case) emphasised at Page 336, Paragraphs 13 - 15, that where a claimant was unreasonably prone to take offence, then even if she did genuinely feel that her dignity had been violated, there would not be harassment. The issue was one for a tribunal, having regard to all the relevant circumstances, including the context of the conduct in question.

62. In relation to alleged detriment for asserting a statutory right, the relevant provision is Article 68A of the Employment Rights (Northern Ireland) Order 1996.

63. As regards the dismissal from Allstate after they spoke to Mr St Clare, the tribunal finds that he had little option but to tell the truth when subsequently asked by Allstate as to the circumstances of the claimant's departure. The claimant had informed Allstate that he had left the respondents' employment of his own accord, whereas the plain truth was that he had been dismissed for gross misconduct.

64. The tribunal considers that Mr St Clare was measured in his response to the questions asked by Allstate, and it must be borne in mind that he was reacting to their contact. He did not instigate the contact, and in the view of the tribunal had little option but to answer truthfully, without embellishment.

65. As regards the Coca-Cola job offer, Mr St Clare was placed in an even more difficult situation. Coca-Cola was a major client of the respondents, whose business was won after a lengthy and difficult tendering process. They contacted Mr St Clare because they were alarmed by the claimant's assertion to them that he had left the respondents' employment because they had discriminated against him on the grounds of disability. Such a practice not only contravened their company ethos, but as a result place the respondents' continued contract with them in peril.

66. The tribunal considers that Mr St Clare in responding to their contact with him on this issue responded in a reasonable and measured way.

67. It should be borne in mind that the claimant could have called witnesses from Allstate and from Coca-Cola to rebut the respondents' assertions on this issue, but did not.

68. On foot of the tribunal's findings on both allegations, the claimant's claim of victimisation is dismissed.

69. As regards his assertion that the letter received by the General Medical Council claiming that the claimant and his wife, who is a practising doctor, had fabricated the claimant's application for a disabled parking badge, could only have been sent by or on behalf of the respondents, the tribunal considers that such a claim is unsupported by any evidence from which the tribunal could conclude on the balance of probabilities that such was the case. Such an allegation is regarded by the tribunal as merely speculative. It appears to the tribunal that a number of people within the respondent company, and outside it, could have had knowledge of the claimant and his circumstances sufficient to draft such a letter. Whilst there was great hostility towards the claimant by the respondents, the absence of any direct link to them, combined with the possibility that someone else might have been hostile to the claimant, renders it impossible to conclude that the letter could only have been sent by or at the instigation of the respondents. That claim is dismissed.

THE CLAIM OF COMMISSION OWED TO THE CLAIMANT AND THE RESPONDENTS' CLAIM FOR HOLIDAY PAY PAID IN ADVANCE

70. The second and third-named respondents are dismissed from the claim for unpaid commission. This claim ought properly to be regarded as arising from a sum owed by the first-named respondent, and not owed personally by the last two respondents as individuals.

71. The respondents accept that commission is owed to the claimant, but dispute the amount. On the claimant's version, this amounts to £510; the respondents assert that it is £222 when adjusted to take account of holiday pay paid to the claimant.

72. The tribunal has concluded that the claimant is owed £510; it is an amount payable to him for work done, in accordance with the terms of his contract. The tribunal considers that the informal arrangement reached between the claimant and the respondents about taking paid holiday time off was outside the terms of the claimant's contract. As such, the respondents cannot credibly claim a contractual entitlement to its recovery. The respondents' counterclaim in that regard is therefore dismissed. The first-named respondent is therefore ordered to pay the sum of £510 to the claimant.

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

Employment Judge:

Date and place of hearing: 29 & 30 November, 1 & 2 December 2016, 16 & 17 January and 24 February 2017, 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 >> Bonnar v Bond Search and Selection Ltd [2017] NIIT 01216_16IT (11 May 2017) URL: http://www.bailii.org/nie/cases/NIIT/2017/01216_16IT.html Cite as: [2017] NIIT 01216_16IT, [2017] NIIT 1216_16IT

Industrial Tribunals Northern Ireland Decisions