Background:

The claimant began working for the respondent, a voluntary organisation, in November 2011 as an Employment Advocacy Officer.   The claimant has muscular dystrophy, Type 1 diabetes and chronic respiratory failure and is a disabled person within the definition of the legislation.  The claimant worked through various roles being promoted up bands to the Erasmus Project Manager in 2019. The issues leading to the case relate to internal promotions within the workplace.

One of these acts related to the promotion of another colleague to the position of interim CEO.   The claimant suggested it was direct disability discrimination on the basis that the individual did not have a visible disability whereas the claimant did.  It is notable though that whilst there was no formal request for expressions of interest it was put to the management team at the Board with only the individual selected expressing an interest.  The claimant, who was on the Board, did not put himself forward.

There was a second interim promotion process for two temporary senior management positions.  The claimant applied for one of these. The claimant was unsuccessful with another employee, A, being successful.  A was in fact subordinate to the claimant at that time.  A was also disabled within the definition of the legislation.   The claimant was not regarded as meeting the requirement for having three years recent experience in a senior management level as his experience of same was some 13-14 years ago. A similar claim was made relating to the fact that the claimant had a physical disability whereas A did not.  There were other allegations made by the claimant relating to the relationship A had with those involved in the process but these were not entertained by the Tribunal as they had nothing to do with disabilities.  The claimant was informed of this in July 2020 yet he only brought his case in April 2021.

There were also issues with the funding being cut leading to the claimant’s Grade 6 job.  He was offered two Grade 5 roles or to redesign a Public Affairs role. The redesign did not take place and it was only after some time that the claimant decided to take up the Employability Advocacy Officer role again.  The claimant argued that it was disability discrimination that as part of this his role in Harkin Project and Leonard Cheshire work was taken off him.

A further issue in this case was some very unsavoury tweets received by the claimant anonymously.  They clearly went to his disabilities and it amounted to harassment within the meaning set out in the Disability Discrimination Act. Some of the tweets did relate to employment stating about ‘failed appeals’ and ‘failed employment opportunities’.  The respondent had suspicion that it may have been A but had no evidential basis. This continued with anonymous text messages to his phone citing his home address. Following a PSNI investigation they had revealed that A had sent the tweets, text message and an anonymous call. A accepted a Community Resolution Notice. A subsequently resigned from their role. The respondent had prepared draft letters to place A on precautionary suspension and to summarily dismiss A due to the conduct.  They were not required as a result of the resignation.

Outcome:

The first thing to point out is that the Tribunal examined the delay in bringing the proceedings on the part of the claimant.  They came to a conclusion that there was no reasonable excuse for the significant delay.  This meant the claims were dismissed.  However, very helpfully the Tribunal did outline its decisions on the substantive issues had they been in time.

In terms of the promotions and the claims of direct discrimination on the ground of disability it was found that the claimant did not shift the burden. There was no evidence that the fact the claimant was visibly disabled had any influence on the appointment of the interim CEO or A for the respective roles. Indeed, the respondent was able to present credible explanations as to why the claimant was not appointed.  The Tribunal also considered that the recruitment panel comprised of individuals who had disabilities.  Whilst it is possible to still have disability discrimination it was found that it does point away from the plausibility of a finding that the process was tainted by disability discrimination.

On the harassment point, the Tribunal found that there would be no vicarious liability on the basis that A had not carried out the acts in the course of their employment.  It was found that the fact there was an internal disciplinary procedure did not transform the conduct into one which was in the scope of A’s employment.  It was found, albeit academic, that even if it was in the course of employment the respondent could have relied upon the defence within Section 58(5) of the DDA that it had taken reasonably practicable steps to prevent A from acting as they did.   This was on the basis that there was regular Equality training. As a result the claims were dismissed.

Practical Guidance for Employers:

The time issue, whilst fatal to the claimants, case is not the key learning point here.  The key learning point arises with the harassment claim and how the respondent was able to avoid liability on two points.  The first was that tweets sent anonymously outside of work were regarded as not falling within the course of employment.  This meant the employer was not vicariously liable.  The Tribunal also demonstrated the importance of up-to-date equality training for staff as it demonstrates that the employer has taken the reasonably practicable steps to prevent the employee from acting as they did.  It is important for employers to ensure that there is regular Equality training to ensure that, should there be an issue, that the defence can be relied upon.

NI Tribunal decisions are available on the OITFET website: http://www.employmenttribunalsni.co.uk/