Stephen Mearns of John Ross and Son recently represented the claimant in the case of Margaret O’Neill v DSD Case Ref: 1922/11 at industrial tribunal in Northern Ireland. Stephen believes that the decision could have major repercussions for disability discrimination laws in Northern Ireland (and a profound effect for disabled civil servants) and has written the following summary of the case:

The claimant in this case was a 29 year-old Civil Servant who developed an aggressive form of Rheumatoid Arthritis. Amongst other reasonable adjustments the claimant requested a transfer to a location closer to home.

The case primarily looked at two distinct allegations.

Firstly; that the Respondent should have made the claimant aware of the Access to Work Scheme and assisted her in accessing the scheme and secondly; that the Respondent failed to transfer her to a location closer to home. The Access to Work Scheme is a government funded scheme which assists disabled persons financially with the cost of travelling to and from work.

The Tribunal held that the Respondent was at fault in not promptly informing the claimant about the existence of the scheme but that this failure did not constitute a failure to make a reasonable adjustment. The reasoning of the Tribunal was formed due to references of Morison J in the case of Kenny v Hampshire Constabulary in which it was stated that the provision of transport for getting to and from work is outwith the scope of the section covering reasonable adjustments within the Disability Discrimination Act 1995.

The main focus of this case was however on the operation of the NICS transfer scheme. The Civil Service operates a transfer scheme for disabled employees, and indeed the claimant had made a request for a transfer. However, non-disabled Civil Service employees who were deemed ‘surplus’ were given priority on transfers over and above all disabled employees. In addition, the claimant who was an AO grade, was not considered for transfer to any positions which were either above or below her grade. The tribunal was referred to the analogous case of Mingo V Kent County Council in which the EAT found a similar transfer policy to be discriminatory. In addition, the House of Lords decision in Archibald v Fife County Council provided authority for the proposition that disabled employees can be given transfers to positions of higher or lower grade as a reasonable adjustment.

The Tribunal found that the practical effect of the Civil Service policy was to provide relative redeployment advantages to surplus staff, in preference to disabled staff at a time when a large number of surplus staff had to be redeployed. This system of unqualified prioritising of non-disabled staff over disabled staff failed to take account to the employer's duties to make reasonable adjustments and the tribunal suggested two course of action which the respondent could have taken:

a) monitoring the disability transfer list to ensure vacancies were being offered to disabled staff;
b) consideration should have been given to redeploying the claimant at a lower or higher grade (provided of course that the claimant was competent to carry out such duties).

This was also the first Employment Tribunal case in the UK to consider the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). As claimant's solicitor I argued that the UNCRPD bound state parties to outlaw discrimination through their legislation and that the UNCRPD is not hampered by any comparator difficulties - it simply imposes an obligation upon State Parties to ensure equality of treatment. The Tribunal found that there was nothing within the Convention which would rub against the Malcolm decision’s definition of a comparator; this was despite me as claimant’s solicitor making reference to this passage from Lord Justice Mummery in the Aylott case:

"It was, however, recognised that the construction of the 1995 Act by the majority in Malcolm weakened the statutory protection that the 1995 Act was intended by its framers to provide. The case made it more difficult to establish a case of disability related less favourable treatment and the situation has been redressed by legislation. Following the decision in Malcolm the Government produced a consultation paper on disability discrimination, noting that Malcolm weakened protection for disabled people and that the disability -related discrimination provisions were intended to cover a situation where there was both direct and indirect discrimination and that Malcolm shifted protection under the 1995 Act "away from the Government's policy intention", disturbed the balance between the rights of disabled people and made it "more difficult for a disabled person to establish a case of disability -related less favourable treatment."

The decision in respect of the UNCRPD is not binding on future tribunals and it clear that the present state of the Disability Discrimination Act in NI fails to meet the intention the legislator. One should say that since amendments have been made via the Equality Act in GB, disabled persons in NI are at a disadvantage in terms of the breadth and scope of legal protection in this jurisdiction. However, the Tribunal did not take up the opportunity to correct the position with the argument advanced for disability discrimination in this case. Nonetheless, this is an important decision, and one which should grab the attention of the Assembly.

Stephen Mearns
John Ross and Son

You will find the full case decision here:
www.legal-island2008.com/Margaret-O'Neill-v-DSD.pdf

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Legal-Island would like to thank Stephen Mearns of John Ross and Son for the main content of this email.

Contact:

Tel: 02891813173
Email: stephen.mearns@john-ross.co.uk

Stephen will be speaking at Legal-Island's annual reviews of employment law in November. Full programme to be released next week.

Legal-Island
8 August 2012

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