The claimant began work for the respondent in 2016 as an electronics assembly technician, following retirement from another role with the aim of ‘getting him out of the house’.  The duties included those of electronics assembly, but it was expected that there would be some other duties to fit into the needs of the business.  There was never any mention of any disability when he began working and there was no reason that the respondent would be aware of any disability for the purposes of the Disability Discrimination Act 1995.

The company was regarded by the Tribunal as being ‘small’ with an expectation that all employees, including the directors, would engage in maintenance, gardening or building work from time-to-time.  Most of the claimant’s time though was spent as an electronic assembly technician working on cables at a bench.  In 2018, the claimant moved to a four-day week and issues then started to arise around this time with regard to duties the Claimant was asked to perform.  The claimant complained that he had been asked to erect a water pipe as well erecting signs.  He also states that there was heavy lifting in relation to deliveries, but the Tribunal found that actually the products were lightweight and no more than 5kg in weight.   This was leading to back pain.

The claimant said that one of the directors had made a suggestion that ,had they known about his issues they would not have employed him.  The Tribunal made reference to the fact that the director was registered blind and was therefore himself disabled and they found it unlikely that has such a comment been made the Claimant would not have done something about this or challenged it.  There was also reference to Chief Constable v Sergeant A [2000] which stated that an allegation that an individual with a protected characteristic would discriminate against another with a similar protected characteristic must make it ‘extraordinary’ and ‘highly unlikely’.   The Tribunal stated that they did not find the allegation to be credible in observing the claimant’s evidence.

The claimant argued that as he had been off in June 2017 for steroid injections that the respondent should have been aware of his disability.  The Tribunal did not accept this. The meaning of disability within the 1995 Act must be taken into account and even if the claimant had complained of having back pain after some particular activity that would not suffice. The claimant did go for a hip replacement in September 2019.   The directors asked the claimant what his plans were after the surgery.  The claimant made an argument about this at the Tribunal but did not make any suggestion at the time.   The Tribunal found the conversation to be entirely innocent and in no way could be seen as the respondent wanting to get rid of the claimant.  A redundancy process took place as the respondent believed they were losing their biggest contract.   The claimant was on sick leave and during this process he was kept up to date by phone.

Following termination of his employment on the grounds of redundancy, the claimant brought claims relating to unfair dismissal, disability discrimination and age discrimination.  All claims were dismissed. As for unfair dismissal, the Tribunal noted that there had been a careful and fair redundancy process and it complied with the statutory procedure. In relation to age discrimination, the burden did not shift as the claimant could not show that there was prima facie evidence of age discrimination in the system used to select those for redundancy. For disability discrimination, while it was agreed that the claimant was disabled at the time of the dismissal, there was no evidence of a prima facia case of disability discrimination put forward by the Claimant to shift the burden of proof to the Respondent.

Practical Lessons

This case does demonstrate how dealing with a matter of disability and sick leave during redundancy can be handled.  There was a good process put in place which did allow for the procedure to be properly followed even though the claimant was not in work at that time.  This did lead to all claims being dismissed.  One matter does require careful thought though. The idea that an individual who has a protected characteristic (such as a different disability) meaning that it is ‘extraordinary’ or ‘highly unlikely’ that they would make a comment against another with a protected characteristic is a point in the law that should really be revisited. It works upon assumptions and does not give rise to the fact that the protected characteristic can be so wide to encompass a range of factors.  It should not be such that it leads to a higher threshold for a claimant in demonstrating prima facie evidence.

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