THE INDUSTRIAL TRIBUNALS

CASE REF:	169/18

CLAIMANT:			Adrian Scullion

RESPONDENT:		Tesco Stores Ltd

DECISION 
The unanimous decision of the Tribunal is that the claimant’s claims of direct discrimination on the grounds of disability and discrimination by failure to make reasonable adjustments are dismissed.

Constitution of Tribunal:
Employment Judge:		Employment Judge Orr
Members:				Mr P Sidebottom
					Mr I Foster

Appearances:
The claimant was represented by Mr Oisin Toner, Barrister-at-Law, instructed by Donnelly and Kinder Solicitors. 
The respondent was represented by Mr Conor Hamill, Barrister-at-Law instructed by Jones Cassidy Brett Solicitors.

BACKGROUND

1.	The respondent is a limited company which operates two distribution centres in Northern Ireland - one in Antrim and one in Belfast.  

2.	The claimant was employed as a Warehouse Operative (Grade 2) from 2001 until he transferred to the role of Warehouse Clerk (Nights) in September 2017.  He was based throughout at the Belfast Distribution Centre on Apollo Road.

3.	During the relevant times, the claimant suffered back pain and this has been accepted by the respondent as a disability for the purposes of the Disability Discrimination Act 1995 (as amended).

ISSUES

4.	The Legal and Factual Issues were reduced and clarified by both Counsel at the Hearing.

5.	The claimant’s claim is that he was subjected to direct discrimination on the grounds of disability by reason of the less favourable terms and conditions of employment in the “new contract/GNNT” (“new contract”) in the Warehouse Clerk (Nights) role.  The respondent disputes this amounted to direct discrimination.

6.	The comparators relied on by the claimant in relation to his case of direct discrimination are as follows:
(i)	The individuals who worked in the Warehouse Clerk roles that the claimant moved to and who were employed on the “legacy” contract (“legacy contract”).
(ii)	hypothetical comparator

	The claimant’s representative had, throughout the hearing, identified Mr Dessie Campbell as a comparator, however in his final written submissions confirmed that the Mr Dessie Campbell was no longer a comparator. 

7.	The claimant also claims that the respondent failed in its duty to make reasonable adjustments by not permitting the claimant to retain the terms and conditions of his previous role (Warehouse Operative Grade 2) - the “legacy contract” when he transferred to the role of Warehouse Clerk (Nights) in September 2017.

8.	The respondent’s counsel confirmed that the provision, criterion or practice (PCP) which placed the claimant at a disadvantage as a result of his disability was the requirement to carry out physically demanding duties in his role as Warehouse Operative (Grade 2).  The claimant’s counsel confirmed that this was the PCP, relied upon, by the claimant.

9.	The respondent accepted that the above PCP placed the claimant at a substantial disadvantage as compared to a non-disabled person.

SOURCES OF EVIDENCE

10.	During the course of the hearing, the Tribunal considered all the evidence and information presented to it.  It also considered a number of documents and in arriving at its conclusions took account of all relevant aspects of that evidence. 

11.	On behalf of the claimant, the Tribunal heard evidence from the claimant himself and Mr Paul Noble (Warehouse Operative/Shift Trainer and Shop Steward for Unite on nightshift).

12.	On behalf of the respondent, the Tribunal heard evidence from Ms Laura Goodall (People Partner for Antrim and Belfast distribution centre), Mr Tony Moore (Distribution Centre Operations Manager), Ms Rachel Willby (Lead People Partner for the distribution centre in the north of England) and Mr Neil Harvey (Workplace Relations and Change Manager).

THE LAW

13.	Counsel on behalf of both parties very helpfully provided skeleton arguments in advance of the hearing as directed at a Case Management Discussion and final written submissions were provided at the conclusion of the case.

14.	Both Counsel referred the Tribunal to the following cases in their written submissions and skeleton arguments and these has been read and fully taken into account; 

	Smyth v Churchill Stairlifts PLC [2005] EWCA 1220

	O’Hanlon v Revenue and Customs Commissioners [2007] ICR 1359

	Lincolnshire Police v Weaver [2008] All ER (D) 291

	Cordell v Foreign and Commonwealth Office [2012] ICR 280 EAT

	GP4S Cash Solutions UK Ltd v Powell [2016] IRLR 820.

Disability Discrimination Act 1995 (as amended) 

	The duty to make reasonable adjustments  
	
	15.	The employer’s duty to make reasonable adjustments is outlined in the Disability Discrimination Act 1995 (as amended) at Section 4A and states, insofar as is relevant to these proceedings, as follows:

“4A – (1) Where –
                                  
(a)	a provision, criterion or practice applied by or on behalf of an         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 have to take in order to prevent the provision, criterion or practice, or feature, having that effect.”

16.	Section 18B (1) of the Disability Discrimination Act 1995 (as amended) sets out, in so far as is relevant to these proceedings, factors to be taken into account when determining whether an adjustment is reasonable:

(a)	the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

		(b)	the extent to which it is practicable for him to take the step;

(c)	the financial and other costs which would be incurred by the employer in taking the step to the extent to which taking it would disrupt any of his activities;

		(d)	the extent of his financial and other resources;

(e)	the availability to him of financial or other assistance with respect to taking the step; and

		(f)	the nature of his activities and the size of his undertaking 

17.	In the case of The Environment Agency v Rowan [2008] IRLR 20 the EAT outlined the steps that the Tribunal must go through in order to determine whether the duty to make reasonable adjustments arises and whether it has been breached.  The steps relevant to this case, are as follows:-   

(i) 	identify the provision, criterion or practice (PCP) applied that has put the claimant at a disadvantage compared to those who are not disabled;

(ii) 	identify the non-disabled comparator (where appropriate);

(iii) 	identify the nature and extent of the substantial disadvantage suffered by the claimant.

18.	If the duty arises the Tribunal then goes on to determine whether the proposed adjustment is reasonable to prevent the PCP placing the claimant at that substantial disadvantage.  In Smyth v Churchill Stairlifts PLC [2006] ICR 524, the Court of Appeal confirmed that the test of reasonableness is an objective one and it is ultimately the Employment Tribunal’s view of what is reasonable that matters.

19.	Reasonable adjustments are limited to those that prevent the provision, criterion or practice (PCP) or feature placing the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled.  Any proposed reasonable adjustments must be judged against the criteria that they must prevent the PCP from placing him at a substantial disadvantage.  Consultations and trials, exploratory investigations and the like do not qualify as reasonable adjustments Salford NHS Primary Care Trust v Smith UKEAT/0507/10 at paragraphs 47, 48 and 49

20.	A proper assessment of what is required to eliminate the disabled person’s disadvantage is a necessary part of the duty of reasonable adjustment Southampton City College v Randall [2006] IRLR 18. 

21.	It is irrelevant to consider the employer’s thought processes or other processes leading to the making or failure to make a reasonable adjustment.  “It is an adjustment which objectively is reasonable, not one for the making of which, or the failure to make which, the employer had (or did not have) good reasons” Royal Bank of Scotland v Ashton [2011] ICR 632 at para 24

22.	As was noted by the House of Lords in its decision Archibald v Fife Council [2004] UKHL 32, [2004] IRLR 651 [2004] ICR 954 (per Baroness Hale at paragraph 47), the duty necessarily requires the disabled person to be treated more favourably in recognition of their special needs.  It is thus not just a matter of introducing a ‘level playing field’ for disabled and non-disabled alike, because that approach ignores the fact that disabled persons will sometimes need special assistance if they are to be able to compete on equal terms with those who are not disabled ... (Harvey on Industrial Relations and Employment Law L at [398.01]).

23.	The purpose of the Disability Discrimination Act 1995 (as amended) was described in O’Hanlon –v- Revenue and Customs Commissioners [2007] ICR 1359.  The EAT stated:-

69.	Second, as the Tribunal pointed out, the purpose of this legislation is to assist the disabled to obtain employment and to integrate them into the workforce.  All the examples given in section 18B(3) are of this nature. True, they are stated to be examples of reasonable adjustments only and are not to be taken as exhaustive of what might be reasonable in any particular case, but none of them suggests that it will ever be necessary simply to put more money into the wage packet of the disabled.  The Act is designed to recognise the dignity of the disabled and to require modifications which will enable them to play a full part in the world of work, important and laudable aims.  It is not to treat them as objects of charity which, as the Tribunal pointed out, may in fact sometimes and for some people tend to act as a positive disincentive to return to work.  

24. 	In the case of G4S Cash Solutions (UK) Ltd –v Powell  2016 IRLR 820 – the EAT considered O’Hanlon –v- Revenue and Customs Commissioners [2007] ICR 1359 and HHJ Richardson stated in that judgement:

“47. I see no reason in principle why pay protection, which is no more than another potential form of cost for an employer, should be excluded as a "step". Suppose, for example, that there is a choice between keeping an employee in an existing role, paying for support and assistance, or transferring the employee to a new role where no support or assistance is required but the pay is lower, such that an Employment Tribunal considers it reasonable for the employer to have to protect the employee's pay. I see no reason in principle why the one should be a "step" within section 20(3) but the other should not be.”

“60. I do not expect that it will be an everyday event for an Employment Tribunal to conclude that an employer is required to make up an employee's pay long-term to any significant extent - but I can envisage cases where this may be a reasonable adjustment for an employer to have to make as part of a package of reasonable adjustments to get an employee back to work or keep an employee in work. They will be single claims turning on their own facts”.

Burden of Proof

25.	Section 17A(1B) of the Act provides that where a claimant proves facts from which the Tribunal could, apart from that sub-section, conclude in the absence of an 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 that he did not so act.  

26.	The Employment Appeal Tribunal in the case of Project Management Institute v Latif [2007] IRLR 579, Elias P concluded that:-

		“The paragraph in the DRC’s Code is correct.  The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably have been inferred, absent an explanation, that it has been breached.  Demonstrating that there is an arrangement causing substantial disadvantage engages the duty but it provides no basis on which it could properly be inferred that there is a breach of that duty.  There must be evidence of some apparently reasonable adjustment which could be made.  We do not suggest that in every case the claimant would have to provide the detailed adjustment that would need to be made before the burden would shift.  It would, however, be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could be reasonably be achieved or not.”

“[We] very much doubt whether the burden shifts at all in respect of establishing the provision, criterion or practice or demonstrating the substantial disadvantage.  These are simply questions of fact for the Tribunal to decide after hearing all the evidence, with the onus of proof resting throughout on the claimant”.

Direct discrimination on grounds of disability

27.	Section 3A (5) of the DDA states as follows:-

“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.”

28. 	It has been established that there are two elements in direct discrimination, firstly, the less favourable treatment and secondly, the reason for that treatment Glasgow City Council v Zafar 1998 IRLR 36.  However, in the leading case of Shamoon v Chief Constable of the RUC 2003 UKHL 11 at paras 7 & 8.  Lord Nicholls said that “sometimes the less favourable treatment issue cannot be resolved without, at the same time deciding the reason why issue”.  Further, in his judgment in the case of Nagarajan v London Regional Transport 1999 IRLR 572  Lord Nicholls observed that the reason why is the crucial question.

29. 	The case of High Quality Lifestyles Ltd v Watts 2006 IRLR 850, determined that the relevant comparator is a person who does not have the particular disability (Tribunal’s emphasis) of the claimant, but whose relevant circumstances are the same as, or not materially different from those of the claimant.

30.   The burden of proof provisions as outlined in the case of Igen Limited v Wong [2005] IRLR 258 CA and subsequent cases such as Madarassy, apply to these proceedings.      

31.	The burden is on the claimant to prove facts from which the Tribunal could conclude that an act of direct discrimination on grounds of disability occurred and if he does so the burden then shifts to the respondent to show that any adverse treatment was in no sense whatsoever influenced by the claimant’s disability. 

RELEVANT FINDINGS OF FACT

32.	The claimant commenced employment with the respondent in or around 30 April 2001; from 9 May 2002, he was employed in the role of Warehouse Operative (Grade 2).   The claimant had also applied for and was appointed to the role of Stand-In Warehouse Clerk from June 2016 on an “as required basis”.   

33.	The claimant suffers from a degenerative spine condition which affects his back and neck resulting in chronic back and neck pain and this has affected the claimant for a number of years.  The claimant is disabled as defined by the Disability Discrimination Act 1995 (as amended).  The claimant was on a support plan from in and around early 2015, provided by the respondent, which included no heavy lifting, less manual handling duties and the carrying out of clerical/administrative duties.	 

34.	A report from Occupational Health dated 21 February 2017 confirmed that the claimant was unable to return to his full duties as Warehouse Operative (Grade 2) either at that time or in the future without further risking his health and fitness.

35.	The claimant attended a meeting with Ms Laura Goodall on 27 April 2017 accompanied by his union representative Mr Paul Noble.  At the meeting the contents of the Occupational Health report were discussed and the claimant accepted that he was unable to return to his post of Warehouse Operative (Grade 2) as a result of his disability.  At the meeting Ms Goodall confirmed that she would “look at vacancies available”.  The claimant stated that he had previously worked in stores and “would not say no” but his first choice was the Belfast Distribution Centre.  The claimant was advised at this meeting that “the worst case scenario” was that the company could not accommodate him and at that stage they would have to “part company”.  Ms Goodall indicated that she was aware of a potential vacancy arising in the warehouse that may be available.  The claimant was also advised by Ms Goodall “if you transfer over it would be on a new contract, you need to think about that”.  The claimant confirmed that it would be something he would need to think about.  The claimant was offered a four week trial in the Warehouse Clerk (Nights) role and an offer of a trial in stores.

36.	A further meeting took place on 4 May 2017 at which the claimant confirmed he would be interested in the Warehouse Clerk (Nights) vacancy, however he indicated the only “stumbling block" would be the “new contract”.  At this meeting it was confirmed by Ms Goodall that the role of Warehouse Clerk (Nights) if advertised would be under the new terms and conditions – i.e. those of the “new contract”; she offered the claimant a trial for four weeks, in this role, with no alteration to his current terms and conditions during the trial period. 

37.	On 1 June 2017 a meeting was held at which the claimant’s trial in the role was discussed and he was again advised that the role of Warehouse Clerk (Nights) was on the “new contract”.  The claimant again stated he had concerns over the contract – the notes of the meeting record the claimant as having stated “monetary is the issue”.  The trial in the post was extended by four weeks and a further meeting was arranged for 30 June 2017.  

38.	At the meeting on Friday 30 June 2017 the claimant confirmed that the role of Warehouse Clerk (Nights) was suitable but the contract and the loss of earnings was the issue for him.  Ms Goodall stated that if he wished to accept the post of Warehouse Clerk (Nights) it would be on the “new contract” and she offered pay protection in relation to salary for a period of 12 months by way of a compromise due to the claimant’s concerns over pay.

39.	There was a further meeting on 26th July 2017, at which the claimant was informed by Ms Goodall of another alternative vacancy – namely a Delivery Service Co-Ordinator in the Antrim Distribution Centre.  This was a newly created role in Northern Ireland as part of a restructure that took place.  The advertisement for this role was due to close that week and the claimant was requested to confirm if he wished to be considered for this vacancy. 

40.  	The role of Delivery Service Co-Ordinator in Antrim Distribution Centre was a role under the “legacy contract” terms comparable to those which the claimant was employed under in his role of Warehouse Operative (Grade 2).   It was not disputed that had the claimant chosen this role the terms and conditions of employment would have reflected his contract terms (“legacy terms”) under the Warehouse Operative (Grade 2) role with a salary increment.  In an email dated 3 August 2017 Mr Dave Molloy (claimant’s line manager) confirmed to Ms Goodall that the claimant was not interested in the position of Delivery Service Co-ordinator in Antrim.

41. 	The claimant’s evidence was that he had spoken to his union representative Mr Paul Noble regarding the Delivery Service Co-ordinator vacancy and had decided against taking the role as he believed that it had more responsibility.  In his evidence, he stated that it “was a lot more responsibility for next to little wage increase.  When I took everything into consideration I felt it wasn’t for me”.  Neither the claimant nor his representative made enquires with the respondent’s staff or requested any further information about the Delivery Service Co-ordinator role at any meeting with the respondent or at any other time.   It was the claimant’s case at hearing that this role was a Team Manager’s role however this was not the respondent witnesses’ evidence and the Tribunal accepts that this role was a newly created role in Northern Ireland and that it was administrative/clerical and included administrative duties that had been previously carried out by a manager.  The Tribunal finds on the claimant’s evidence that he had limited interest in the role and his choice was to remain in the Belfast Distribution Centre in the Warehouse Clerk (Nights) as a personal preference.   

42.	A final meeting was held with the claimant on 22 September 2017, the claimant was issued with two copies of the new terms and conditions for the role of Warehouse Clerk (Nights) at Belfast Distribution Centre and he commenced that role, on that date, with one year’s pay protection on the terms of the “new contract”.   

43.	It was accepted by the parties that the other Warehouse Clerks in the Belfast Distribution Centre were employed on “legacy terms” as a result of having been employed prior to the introduction of the “new contract” in 2013/2015 as part of the collective negotiations and agreement with the relevant recognised Trade Unions.

44.	The claimant raised a grievance by letter dated 26 September 2017 “I feel that [the] decision to not allow me to retain my existing terms and conditions, following a move from the warehouse to goods-in because of my disability is discriminatory and that I am not being treated fairly in relation to other similar cases”.  A grievance meeting was held on 17 October 2017 at which the claimant asserted he worked alongside people who were on the “legacy contract”.  He identified Dessie Campbell, Andy Jordan and Martin Rose as employees who had transferred to roles and had been permitted to retain to legacy terms.  The grievance outcome letter dated 27 October 2017 did not uphold the claimant’s grievance, it stated:
 “I confirmed that a move from the Warehouse Operative role to Warehouse Clerical role should be on new contract terms and conditions and the list of colleagues that you provided were not in the same situation in terms of adjustment due to ability to complete core role.  You raised the new Warehouse Co-Ordinator in the distribution centres in GB and contracts they are on, I checked with the business and can confirm that this was a standalone decision agreed as part of the restructure”.  
	The claimant appealed this at a “Stage 2” appeal, which was conducted by Mrs Rachel Willby.  The outcome of the Stage 2 grievance was communicated by letter dated 28 February 2017 and upheld the outcome of the Stage 1 grievance.  It concluded that the claimant had not been treated differently, unfairly or discriminated against on the ground of his disability.
45.	The respondent has a final exceptional stage review of the grievance which is conducted on the papers.  This was undertaken by Mr Neil Harvey, who decided:

	“from the paperwork that I have reviewed … Rachel and the DC Team have, I believe, worked hard to help you in identifying four potential alternative roles, one of which matched your existing terms and conditions and also by offering a period of pay protection in respect of the role you ultimately chose.   The clerical role identified was the one you chose to accept and was one that attracted alternative terms and conditions to your current arrangements.  For this role it is the only contract that was available and is the most recently introduced across the entire distribution estate.  Anyone recruited to this role would have been employed on this contract and therefore, it was the only contract available to you”.

46.	It is common case between the parties that the “new contract” terms were less favourable than the legacy terms and differed in a number of respects including hours of work, hourly rate of pay, over-time payments, percentage shift premium, upper limit to sickness entitlement, absence days, Christmas bonus and bank holidays.

47.	There was no conflict in the evidence that a “new contract” had come into existence for parts of the respondent business in Northern Ireland in 2013 which had brought the Northern Ireland business into line with the business in the UK where the “new contract” had been in place from in and around 2011.  It was first introduced into the Belfast distribution centre in 2015 as part of the recruitment drive at that time and from that date was the only contract offered to both internal and external recruits. 

48. 	The “new contract” had been introduced as part of restructuring in agreement with the relevant recognised Trade Unions, namely Unite and USDAW as part of collective negotiations in 2011 in GB and 2013 in NI.  It was the respondent’s evidence that this was part of a Company wide restructure to ensure that the Company was robust for the future, had the ability to recruit more people and sustain employment of more staff.  The Tribunal accepts that this was the reason for the introduction of the “new contract” at the relevant time in GB and NI and it was unrelated to the claimant or his disability.   The claimant did not dispute this.

49.	The claimant accepts that from the introduction of the “new contract” those employed prior to the introduction of the “new contract” remained on their existing terms and conditions (“legacy contract”), however after its introduction new employees who were recruited were employed on the new terms and conditions – the “new contract”.   The claimant’s union representative in cross-examination accepted that existing staff had transferred to roles which from 2015 were under the “new contract” and they did not retain their “legacy terms”.  It was the undisputed evidence of the respondent that the “legacy contract” was in effect “closed”.

50.		It was common case between the parties that the claimant and/or his representative, Mr Paul Noble had maintained, at the various meetings referred to above and during the grievance process, that employees in GB who had moved to the newly created role of Warehouse Co-Ordinator were permitted to remain on their “legacy contracts”.        At the meeting on 26 July 2017 it was confirmed to the claimant that the role of Warehouse Co-Ordinator (in GB) had arisen out of a restructure and was not comparable as this role did not exist in Northern Ireland, this was not disputed at the hearing. 
 		The claimant and his union representative also identified staff in Northern Ireland that they maintained had retained “legacy” terms and conditions when transferring roles”:
(i)	Dessie Campbell – a Warehouse Operative.     
The evidence before the Tribunal was that Mr Campbell had, by reason of reasonable adjustments, arising from a disability, had changes made to his duties as Warehouse Operative.  Furthermore in in 2017, another adjustment was made resulting in 50% of his role being made clerical, and 50% remaining as those of Warehouse Operative, with some adjustments.  The Tribunal was referred to a letter dated 27 April 2017 which the respondent’s witnesses confirmed was sent to Dessie Campbell.
	“You will remain on your current warehouse contract and the adjustment to system clerical duties will be captured within your adjustment passport.  This is a hybrid arrangement and something we don’t usually do.  However given that you are spending equal time in both the warehouse and systems it’s something we have agreed to do at this time.
	Please be aware that if in the future you move role fully from warehouse to other areas in the DC, new contract terms and conditions will apply”.
	The claimant argued that if Mr Campbell was permitted to remain on the “legacy contact” he [the claimant] should also be permitted to retain the “legacy contact”.  The claimant in cross-examination accepted that his situation was not comparable to Mr Campbell’s as his was a 50/50 split role whereas the Claimant was transferring 100% to the Warehouse Clerk (Nights) role.
(ii)	Andy Jordan/Martin Rose – the evidence before the Tribunal was that these employees had transferred from warehouse roles to security roles.  The security role had only one contract in existence and this was the “legacy contract”.  This was not disputed by the claimant.  These employees were not comparable to the claimant as they were not transferring by reason of their inability to carry out the duties of their warehouse role.
(iii)	Andy Jago – the evidence before that tribunal was that this employee had moved from days to nights - changing his shift pattern and not transferring to a different role.

FINDINGS

Direct Discrimination

51.	In considering the statutory provisions relating to direct discrimination on the grounds of disability and the relevant case law, the requirement is for a comparator whose circumstances are not materially different from those of the claimant.  The comparators relied upon by the claimant were those employees in the warehouse who were on the “legacy contract” and a hypothetical comparator.

52.	The Tribunal does not accept that these comparators were appropriate comparators as their relevant circumstances were materially different from those of the claimant; 

	The only evidence the Tribunal was provided with in relation to the circumstances of the employees in the warehouse was that they were employed on the “legacy contract”.  The claimant’s representative accepted, on behalf of the claimant that these staff were employed on the “legacy contract” by virtue of a collective agreement which permitted staff on “legacy terms” pre-2015 to retain their terms and conditions.  Accordingly they were not in the same position as the claimant as they were not transferring from a “legacy contract” role due to their inability to carry out the duties of that role.   Their terms and conditions arose out of a collective agreement namely - that those employees employed pre-2013/2015 would retain the “legacy contract”.   

	There was insufficient evidence before the Tribunal in relation to hypothetical comparator(s) and therefore the Tribunal does not have sufficient evidence to determine a hypothetical comparator in the claimant’s case.    The claimant’s representative in his final written submissions suggests the Tribunal can draw parallels from the Respondent’s “Moving People Around the Business” policy – however the evidence of Ms Goodall was that this policy applied to restructuring and redundancy and the wording of the policy is clear that it applies to– “colleagues who are affected by a business change”.  The Tribunal finds that this is not comparable to the claimant’s circumstances.    

53.	The Tribunal finds that there is no prima facie evidence of direct discrimination, therefore the claimant has not discharged the burden of proof.   In so concluding the Tribunal have regard to the following matters:-

(a)	The claimant accepts that the introduction of the “new contract” in 2013/2015 in Belfast arose from a decision by the respondent to introduce the “new contract” in NI which had been in existence in GB from 2011.   The respondent’s witnesses’ evidence, which was not disputed by the claimant, was that the respondent had a business need to restructure with the intention to make the company more robust for the future, to introduce flexibility and increase its ability to recruit more people.  This arose from a business need which predated any consideration of the claimant and was the reason for the “new contract” in 2011 in GB and 2013/2015 in NI. 

(b)	The “new contract” was introduced after collective consultation and agreement with recognised trade unions and became the only contract available after 2013/2015 for those taking up the role of Warehouse Clerk in the Distribution Centre in NI.  Accordingly the Tribunal determines that the reason for the different contract was the introduction of the “new contract” in 2013/2015 to bring the NI business into line with the GB business and was unrelated to the claimant’s disability.

(c)	Four other (non-disabled) staff employed under the “legacy contact” transferred to roles in the Distribution Centre since the introduction of the “new contract” and upon appointment/transfer were employed under the terms of the “new contract” -   specifically three members of staff from stores and a Mr Terry Quinn who transferred from the role of Warehouse Operative to the role of Transport Clerk.   None of these employees were permitted to remain on the terms of the “legacy contract”.  These employees were not disabled and moved to these roles accepting that they would no longer remain on the “legacy contract”.   In cross-examination Mr Paul Noble accepted that the “new contract” applied not only to new recruits but also to existing staff.    The Tribunal finds that the claimant was not treated any differently to other employees who had transferred to new roles and therefore there was no less favourable treatment.

(d)	When the claimant was deemed unfit to carry out the role he was contracted to undertake, the respondent offered the claimant alternatives including part-time/full-time store roles, Delivery Service Co-Ordinator in Antrim Distribution Centre and Warehouse Clerk (Nights) at the Belfast Distribution Centre.  The Tribunal finds from the claimant’s evidence that he chose to accept the role of Warehouse Clerk (Nights) in full knowledge of the terms and conditions of the role.  The claimant’s position from the first meeting was “1st choice Belfast DC” (as stated at the meeting on 27 April 2017).  He had the option of the Delivery Service Co-ordinator role on the “legacy terms” but he declined to avail of this vacancy.  He was clear in his evidence that he understood that the role was on “legacy terms” and he was aware of the rate of pay.   

	(e)	The claimant was not treated any differently to anyone else who opted to transfer or apply for another role.   The claimant did not dispute that if the role of Warehouse Clerk (Nights) was advertised and an appointment was made, it would be on the terms and conditions of the “new contract”.

Reasonable Adjustments Claim

54.	The provision, criterion or practice (PCP) that the claimant relies on in this case is the requirement to carry out physically demanding duties in his role as Warehouse Operative (Grade 2)  (Tribunal’s emphasis) and therefore the Tribunal must consider the issue of the respondent’s obligation to make reasonable adjustments in relation to this PCP.     Specifically did the adjustments alleviate the disadvantage to the disabled person to the extent that it was reasonable to do so?   

55.	The claimant accepted that extensive support had already been provided to him prior to the Occupational Health report confirming that he was unfit to carry out the duties of the post of Warehouse Operative (Grade 2).  The respondent had a number of meetings with the claimant and the respondent made the following adjustments:-

	(1)	offered the claimant a number of options of alternative employment which ultimately came down to two available vacant positions - 

(a)	Delivery Service Co-Ordinator (Antrim Distribution Centre)
(b)	Warehouse Clerk (Nights) (Belfast Distribution Centre) 

	(2)	the claimant was permitted a four week trial period in the role of Warehouse Clerk (Nights) and this was extended during the consultation process with the claimant.

	(3)	the claimant’s pay was protected for a period of one year after he accepted the role of Warehouse Clerk (Nights) under the ‘new contract’.

56.	The question for the Tribunal is:  Did the respondent comply with the duty to make reasonable adjustments? A necessary part of the duty to make reasonable adjustments is an assessment of what was required to eliminate the claimant’s disadvantage.   The issue is whether the adjustment(s) made by the respondent were objectively reasonable in order to prevent the relevant PCP placing the claimant at a substantial disadvantage in comparison to those without a disability.    The Tribunal finds that the adjustment of transferring the claimant to the role of Warehouse Clerk (Nights) did, as a matter of fact, prevent the effect of the PCP.  Clearly carrying out the role of Warehouse Clerk (Nights) prevented the claimant from being at a substantial disadvantage in relation to the identified PCP  - namely the requirement to carry out physically demanding duties in his role as Warehouse Operative (Grade 2).    

57.	The argument on behalf of the claimant was that the duty to make reasonable adjustments, in the claimant’s circumstances required the respondent to “protect the claimant’s pay and other benefits permanently” and specifically to retain the claimant on his “legacy contract” when he transferred to the Warehouse Clerk (Nights) vacancy.    It was evident to the Tribunal that permitting the claimant to retain the terms of the “legacy contract” would not have alleviated the disadvantage in relation to the PCP identified and relied upon by the claimant in this case.  The claimant simply wanted to have the benefit of the terms and conditions he had under the “legacy contract”.  The law is clear that the steps which an employer is under a duty to take must depend on the particular PCP applied and on the basis of the claimant’s case as presented to the Tribunal, the transfer to Warehouse Clerk (Nights) did prevent the substantial disadvantage that arose from his disability.   On that basis the claimant’s case does not succeed.	 

58.	The claimant was unhappy with the terms of the “new contract” and it was not disputed that the terms and conditions of the “new contract” were less favourable than the “legacy” terms.     However the claimant did not make the case that the terms and conditions of the “new contract” constituted the PCP that caused him substantial disadvantage in comparison to persons who were not disabled - this is not the PCP relied upon by the claimant in this case and he did not seek to identify or rely on this alternative or any other PCP in his case before the Tribunal. 

59.	The Tribunal concludes that the respondent has complied with its duty to make reasonable adjustments, in so concluding the Tribunal had regard to the following:

(i)	Once the claimant was transferred, by choice, to the role of Warehouse Clerk (Nights) he was no longer at the substantial disadvantage identified by him, namely being required to carry out physically demanding duties.  In the role of Warehouse Clerk (Nights) he could no longer be said to be at a substantial disadvantage in comparison with person who are not disabled (Section 4A Disability Discrimination Act 1995 (as amended)) and therefore the duty no longer arose.    As set out in the EAT case of Secretary of State for Work and Pensions (Jobcentreplus) –v- Higgins UKEAT/0289/09/DA - “The purpose of identifying a PCP is to see if there is something about the employer’s operation which causes substantial disadvantage to a disabled person in comparison to persons who are not disabled” and the EAT in the case of Royal Bank of Scotland –v- Ashton UKEAT/0542/09/LA  confirmed - “A close focus upon the wording of 3A(2), 4A and 18B shows that an Employment Tribunal - in order to uphold a claim that there has been a breach of the duty to make reasonable adjustments and, thus, discrimination - must be satisfied that there is a provision, criterion or practice which has placed the disabled person concerned not simply at some disadvantage viewed generally, but at a disadvantage which is substantial and which is not to be viewed generally but to be viewed in comparison with persons who are not disabled”.

(ii)	In the respondent’s distribution centres in NI, any appointment/transfer from 2015 onwards was on the “new contract”.    The evidence was that non-disabled employees and disabled employees transferring from “legacy contract” roles to roles under the “new contract” did so on the basis they accepted the terms of the “new contract”. The reasons for the introduction of the “new contract” are set out fully in paragraphs 48 and 53 (a) – (c) above.     	

(iii)		The legislation requires a reasonable adjustment, the question is not what an employer ought reasonably to have done but what step(s) it was reasonable to have to take in order to avoid the disadvantage.       The reasonableness of an adjustment must be judged in all the circumstances of the case. It can be a reasonable adjustment to maintain an existing salary - (G4S Cash Solutions (UK) Ltd –v- Powell UKEAT 0243/15RN), however that is not a positive requirement under the legislation.    Furthermore as Judge Richardson stated in the abovementioned case “I do not expect that it will be an everyday event for an Employment Tribunal to conclude that an employer is required to make up an employee’s pay long-term to any significant extent but I can envisage cases where this may be a reasonable adjustment for an employer to have to make as part of a package of reasonable adjustments”.

(iv)	Furthermore, in relation to the reasonableness of any adjustment.  In determining reasonableness under Section 18B regard must be had to all (tribunal’s emphasis) the factors set out in Section 18B (a) – (f). The Tribunal notes that financial costs and extent of financial and other resources are part of the overall consideration (Section 18B subsection (1) (c) and (d)); however reasonableness must equally be considered in relation to the “extent to which taking the step would prevent the effect in relation to which the duty is owed” (Section 18B subsection (1) (a)), “the extent to which it is practicable for him to take the step” (Section 18B subsection (1) (b)) and “the extent to which taking it would disrupt any of his activities” (Section 18B subsection (1) (c)).    

(v)	The extent of this respondent’s financial and other resources; the nature of its activities and the size of the undertaking are substantial and this was accepted by the respondent.  However the Tribunal must give consideration to all the factors set out in Section 18B including “the extent to which taking it would disrupt any of his activities” and “the extent to which it is practicable for him to take the step”.   This includes any operational objectives of the employer – Lincolnshire Police –v- Weaver (2008) All ER D 291.  The respondent had undertaken collective negotiations and reached collective agreement with recognised trade unions in GB and NI on the introduction of a new contract for the business reasons set out in paragraphs 48 and 53 (a) – (c) above.   The Tribunal accepts these as the reasons for the introduction of the “new contract” and accept they were part of an overall operational objective for the respondent affecting employees across its operations in GB and NI. 

(vi)	It does not follow that merely because a respondent is a large operation with considerable resources that a particular level of pay must be maintained.    The purpose of the legislation is to enable disabled people to remain in employment.   As stated by the EAT in O’Hanlon –v- Revenue and Customs Commissioners (2007) ICR 1359, the purpose of the legislation is “to require modification which will enable them to play a full part in the world of work……………not to treat them as objects of charity”.        
(vii)	The claimant was offered the choice of another position and as Counsel submitted on his behalf, he “opted for the position of Warehouse Clerk (Nights)”.  If he had chosen the Delivery Service Co-ordinator vacancy this would have enabled him to retain the “legacy contract” terms that he clearly wanted.    The Tribunal finds that he chose not to accept this offer of alternative employment, the consequence of this choice was employment under the terms and conditions of the “new contract”.

60.	In summary, the Tribunal concludes that the respondent has complied with its duty to make reasonable adjustments in relation to the adjustments made.   In the circumstances of this case and for the reasons set out above the adjustment duty argued for by the claimant in this case was not a “reasonable adjustment” within the meaning of Section 4A of the Disability Discrimination Act 1995 (as amended).	

 

Employment Judge:

Date and place of hearing: 18 & 19 September 2018, Belfast.

Date decision recorded in register and issued to parties: