THE INDUSTRIAL TRIBUNALS

CASE REF:	9225/17

CLAIMANT:	Patrick Marks

RESPONDENTS:	1.	James Lynch t/a Aylesforte Interiors
	2.	Furniture Is Us Ltd

DECISION 

The tribunal is unanimously satisfied that:

1.	The first-named respondent is not properly included in the claimant’s claims for notice pay, sick pay and holiday pay.  Those claims against him are therefore dismissed.

2.	The claimant was not unfairly or otherwise dismissed.  His claim in that regard is dismissed.

3.	The respondents did not discriminate against the claimant on the grounds of disability.  His claim in that regard is dismissed.

4.	The claimant’s claim for notice pay is not made out, and his claim for that payment is dismissed.

5.	The second-named respondent made an unlawful deduction from wages in its failure to pay to the claimant the full appropriate amount of sick pay.  If the full amount has not already been paid by the date of this decision, the second-named respondent is therefore ordered to pay to the claimant the sum of £350.00.

6.	The second-named respondent made an unlawful deduction of wages in its failure to pay to the claimant the full appropriate amount of seven days’ holiday pay.  If that full amount has not been paid by the date of this decision, the second-named respondent is ordered to pay to the claimant the sum of £508.00.

Constitution of Tribunal:

Employment Judge:	Employment Judge Browne

Members:	Mr A Barron
	Mrs F Cummins

Appearances:

The claimant represented himself.

The respondents were represented by Ms N Horscroft, Barrister-at-Law, instructed by Donnelly, Neary & Donnelly, Solicitors.

ISSUES

The issues for the tribunal to determine were:

1.	Whether or not the respondents discriminated against the claimant on the grounds of disability by reason of failing to make reasonable adjustments. 

2.	Whether or not the respondents unfairly dismissed the claimant.

3.	Whether or not the respondents owed the claimant payment of:

(i)	Unpaid wages,

(ii)	Holiday pay;

(iii)	Sick pay. 

EVIDENCE AND FACTS FOUND

4.	The claimant worked for the first-named respondent as a sales executive from 7 October 2015 until an incident occurred on 9 July whereby the first-named respondent informed the claimant by telephone that he was dismissed.  The first-named respondent rang back the next day to say that he was only suspended.

5.	The specific facts of that incident do not require detailed examination.  They related to somewhat bizarre behaviour by the claimant while at work, including allegedly being under the influence of alcohol at the end of June 2017.  On the claimant’s version of events, his out-of-character conduct was due to what the claimant at that time believed to be a severe reaction to anti-histamines, which is not a disability.

6.	The respondents accepted at the tribunal that the claimant at the material time was a disabled person for the purposes of the Disability Discrimination Act 1995, due to his diagnosis at the end of September 2017 of being bi-polar.  They argued however that their lack of knowledge about his disability afforded them a defence by virtue of section 4A (3) of the Disability Discrimination Act 1995, which states: 

“4A	Employers: duty to make adjustments

(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 have to take in order to prevent the provision, criterion or practice, or feature, having that effect …

(3)	Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know –

(a)	in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or

(b)	in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).”

 7.	The claimant accepted in evidence to the tribunal that the respondents did not know at the material time that he was disabled, since he himself did not know his condition until that later diagnosis.  He additionally therefore did not make any request for reasonable adjustments.

8.	The claimant did not return to work after his dismissal and reinstatement, but submitted a series of sick lines from his doctor, citing “stress” as the reason for his absence.

9.	Part of the claimant’s case was that he had in fact been dismissed from the respondents’ employment on 9 July 2017, and that, as he was suffering from a disability which caused him to behave in the way which brought about his dismissal on the grounds of his conduct, the consequent detriment he suffered was his dismissal, on the grounds of that disability.

10.	The respondents argued that not only did they not know about the disability, but he had in fact been reinstated.  They pointed to the fact that he, from the time of his reinstatement until his resignation, continued to submit sick lines, which on their case was a clear indication that he in truth still considered himself to be employed by them.

11.	The claimant advanced the case that it was the respondents’ behaviour towards him which caused him to have no option but to resign in November 2017.

12.	The tribunal noted however that during the claimant’s absence, the first respondent and through him, his family and employees, were subjected to a torrent of abusive and threatening texts from the claimant.  This situation was so serious that the claimant was successfully prosecuted for harassment, as a result of which he was made subject to a two-year restraining order.

13.	The second-named respondent accepted that it withheld the full amount of the claimant’s sick pay, but produced banking documents to confirm that £1150 of it was paid in to the claimant’s account in December 2017, after he had left his employment.

14.	The second-named respondent subsequently informed the tribunal at a Case Management Discussion that it had withheld £350 of the total amount owed, as an allegation was made that this represented money owed by the claimant as a consequence of theft.

15.	The claimant was prosecuted for that alleged theft, but criminal proceedings appear to have been withdrawn at court by the prosecution, in return for the claimant paying the amount alleged to be owed by him.  

LAW AND CONCLUSIONS

 16.	The tribunal is satisfied, as accepted by the respondents, that the claimant at the material time was suffering from a disability within the meaning of the Disability Discrimination Act 1995, namely, bi-polar disorder.

17.	The tribunal is satisfied from the evidence however, that the respondents did not know, and could not reasonably have been expected to know that he was suffering from a disability.  That absence of knowledge was reinforced by the claimant’s own lack of knowledge.  The tribunal therefore concludes that the claim of disability discrimination should be dismissed in its entirety.

18.	The tribunal accepted that the claimant was in fact dismissed in the telephone call of 9 July 2017.  It also found however that the second-named respondent revoked that dismissal on 10 July 2017, and that the claimant accepted such revocation by submitting sick notes thereafter.  It also is of note that the claimant agreed in November 2017 not to return to work, which again is indicative of acceptance by him that he was still employed by the second-named respondent.

19.	The tribunal is therefore not satisfied that the claimant was dismissed.  It further is not satisfied from the evidence that there was any conduct by the second-named respondent which might properly be viewed as warranting a finding of constructive dismissal.

20.	The tribunal is satisfied from the evidence that the conduct of the claimant was such that there was genuine and well-founded fear on the part of James Lynch for his personal safety, and for that of his family, to the extent that he did not wish to have any dealings with the claimant.

21.	The tribunal is further of the opinion from the evidence that the claimant’s conduct towards Mr Lynch might readily have been viewed as gross misconduct, potentially warranting disciplinary proceedings and dismissal.

22.	The tribunal is therefore satisfied that the claimant was not unfairly constructively or otherwise dismissed, and his claim in that regard is dismissed in its entirety.

23.	The tribunal is therefore satisfied that the claimant is not owed any notice pay, and that claim is dismissed.

24.	The tribunal is satisfied from the second-named respondent’s acceptance that it withheld £350 of sick pay payable to the claimant.  Its explanation for doing so was that this constituted money owed by the claimant as a result of alleged theft by him.  The tribunal does not consider that such action is a permissible deduction under Articles 45 or 46 of the Employment Rights (Northern Ireland) Order 1996, which state:

“45. – (1) 	An employer shall not make a deduction from wages of a worker employed by him unless —

(a)	the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

(b)	the worker has previously signified in writing his agreement or consent to the making of the deduction.

(2) 	In this Article “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised –

(a)	in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b)	in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) 	Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion.

(4) 	Paragraph (3) does not apply in so far as the deficiency is attributable to an error of any description on the part of the employer affecting the computation by him of the gross amount of the wages properly payable by him to the worker on that occasion.

(5) 	For the purposes of this Article a relevant provision of a worker's contract having effect by virtue of a variation of the contract does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the variation took effect.

(6) 	For the purposes of this Article an agreement or consent signified by a worker does not operate to authorise the making of a deduction on account of any conduct of the worker, or any other event occurring, before the agreement or consent was signified.

(7) 	This Article does not affect any other statutory provision by virtue of which a sum payable to a worker by his employer but not constituting “wages” within the meaning of this Part is not to be subject to a deduction at the instance of the employer. 

46. – (1) 	Article 45 does not apply to a deduction from a worker's wages made by his employer where the purpose of the deduction is the reimbursement of the employer in respect of —

(a)	an overpayment of wages, or

(b)	an overpayment in respect of expenses incurred by the worker in carrying out his employment, made (for any reason) by the employer to the worker.

(2) 	Article 45 does not apply to a deduction from a worker's wages made by his employer in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision.

(3) 	Article 45 does not apply to a deduction from a worker's wages made by his employer in pursuance of a requirement imposed on the employer by a statutory provision to deduct and pay over to a public authority amounts determined by that authority as being due to it from the worker if the deduction is made in accordance with the relevant determination of that authority.

(4) 	Article 45 does not apply to a deduction from a worker's wages made by his employer in pursuance of any arrangements which have been established —

(a)	in accordance with a relevant provision of his contract to the inclusion of which in the contract the worker has signified his agreement or consent in writing, or

(b)	otherwise with the prior agreement or consent of the worker signified in writing, and under which the employer is to deduct and pay over to a third person amounts notified to the employer by that person as being due to him from the worker, if the deduction is made in accordance with the relevant notification by that person.

(5) 	Article 45 does not apply to a deduction from a worker's wages made by his employer where the worker has taken part in a strike or other industrial action and the deduction is made by the employer on account of the worker's having taken part in that strike or other action.

(6) 	Article 45 does not apply to a deduction from a worker's wages made by his employer with his prior agreement or consent signified in writing where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of an amount by the worker to the employer.”

 25.	The tribunal concludes that the payment of sick pay, as the equivalent of wages, can only be deducted on a ground permitted by Articles 45 and 46.  No such ground was advanced by the second-named respondent.  The tribunal therefore concludes that it was an unlawful deduction, and the second-named respondent is ordered to pay to the claimant £350.00.

26.	The second-named respondent accepted that seven days’ holiday pay was outstanding.  As such, the tribunal is satisfied that an unlawful deduction from wages was made by the second-named respondent.  The second-named respondent is therefore ordered to pay to the claimant the sum of £508.00.

27.	Any sums ordered to be paid to the claimant are only payable if they or any part of them remain outstanding at the date of this decision.

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

Employment Judge:

Date and place of hearing:	28 November 2018, Belfast.

Date decision recorded in register and issued to parties: