Linda Penton v Northern Ireland Court Service Case Ref No 2166/02

DDA; downgrading is deemed a reasonable adjustment

The claimant is a civil servant, employed by the Northern Ireland Court Service and her claims of disability discrimination, unfair dismissal, and unlawful deductions from wages were unanimously dismissed by the Tribunal in a decision issued 22nd December 2009. A previous hearing before another tribunal was aborted and an award of costs was made against the Claimant in the amount of £4,300.

The case had been relisted for hearing and was due to be heard in November 2006. Settlement negotiations ensued between the parties and terms of settlement including an effective waiver by the Respondent of its right to enforce the order for costs were subsequently drafted by the respondent, signed on behalf of the respondent and forwarded to the claimant’s solicitor for signature by the claimant. The case was adjourned for six weeks pending implementation of terms of settlement, as is normal practice in the Industrial Tribunals. The terms of settlement were not ultimately signed by the claimant and the validity of the settlement was considered at a pre-hearing review which took place on 10th December 2007 and 29th January 2008. The Chairman at pre-hearing review determined that a valid compromise agreement has not been concluded within the requirements of section 9 of the Disability Discrimination Act 1995 as amended and accordingly the Industrial Tribunal had jurisdiction to deal with this claim. This was followed by a requisition for a case stated to HM Court of Appeal, which was not proceeded with.

The case was relisted for hearing and was heard over 6 days in June and July 2009. The claimant suffered from clinical depression and the respondent accepted that she is a disabled person within the meaning of the 1995 Act. The Claimant had been working as a court clerk in Belfast Petty Sessions when In December 2000 she was promoted from her then grade (Level 3) to a Level 2B post in Criminal Operations Branch. In January 2001 she took up her new post, as a policy analyst in Criminal Operations Branch at Northern Ireland Court Service Headquarters. The claimant was suffering from a depressive illness and was absent from work from 15th October 2001 until 16 September of the following year. The claimant alleged that she was subjected to unlawful discrimination for a reason related to her disability and because of a failure on the part of the respondent to comply with its duty to make reasonable adjustments following the decision of Court Service, when the claimant returned to work after long-term sick leave, not to place her in the former 2B post in Criminal Operations, but to transfer her to Lisburn court office in the lower grade Level 3. The claimant contended that this effective demotion also constituted unfair dismissal and further alleged that a transfer to Belfast was blocked, that she was harassed and bullied, principally by her former line manager.

The respondent contended that the claimant, by reason of her medical condition could not return to her Level 2B post, she was unable to meet the requirements of that post, and there were no adjustments which it would have been reasonable to make which would have enabled her to go back to it. The respondent’s approach to this matter was to return her to work at a lower grade, while making adjustments which enabled her to do that. The respondent’s submitted that this was also necessary to prevent the claimant from suffering any deterioration in her health, and that in these circumstances any allegation of unfair dismissal was unfounded. Allegations of bullying and harassment were denied.

The Tribunal were satisfied that the respondent’s decision to transfer the claimant to Lisburn at Level 3, together with the arrangements which were made to facilitate her return to work there, were objectively considered, a reasonable adjustment.

The arrangements made to facilitate the claimant’s return to work included that she would return to work on a part-time basis and gradually increase her hours to full-time, she would be paid on a full-time basis, and there would be a ‘mark-time’ arrangement to her salary, i.e. she would be paid her Level 2B salary, but would not enjoy any salary increase until Level 3 caught up with it.

In relation to the Claimant’s complaint of disability-related discrimination, the respondent, in submissions, accepted that it was “certainly arguable that the conclusion [it] reached … involved treating the [c]laimant less favourably for a reason which related to her disability”. It relied principally on the defence of justification set out in Section 3A(1)(b) of the Act of 1995, as amended. Section 3A(3) provides that:- “[t]reatment is justified for the purposes of sub-section (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.”

The respondent wanted to facilitate the claimant in a return to work, but considered that in order that this objective might be achieved, it was necessary to re-grade her and place her in a post where she would be able to continue working without suffering any further or greater injury to her health. Returning to the status quo was not an option as far as they were concerned. The Tribunal were satisfied that the conclusion reached by the employer was one which carries ‘real weight’ and is ‘of substance’. The Tribunal reached this conclusion for the same reasons that they found that the adjustments made were reasonable, namely the fact that the claimant, by reason of her medical conditions, was unable to fulfil the duties of the Level 2B post, that a return to that post would have had a detrimental effect on her health, and that it was impracticable to put in place any further support mechanisms which would have enabled her to return to that post.

The Tribunal accepted that a unilateral demotion will normally constitute a fundamental breach of the contract of employment in the absence of a contractual term allowing such a course, and will normally therefore amount to a dismissal. However, in this case where the Tribunal held that the downgrading constituted a reasonable adjustment, they were not satisfied that what took place amounted to a dismissal. The Tribunal further concluded that if they were wrong in this and there was a dismissal, they considered that it was fair for some other substantive reason within Article 13091) (6) of the Employment Rights (Northern Ireland) Order 1996. For the same reason, the claim in respect of unlawful deductions from wages failed.


Claire Francis Doherty v Belfast Tile Company Limited & Managing Director, Isidron Zarzoso Case Ref 1715/08

Discrimination in recruitment; disregard for accepted standards of practice

The Tribunal unanimously decided that that the claimant was discriminated against on the grounds of race by the first respondent in the failure to appoint her to the post of bilingual secretary on or about 10 September 2008 and further that the claimant was discriminated against on the grounds of race, sex and age by the first respondent in the arrangements made to determine who should be appointed to the post of bilingual secretary on or about 10 September 2008. The first respondent was ordered to pay to the claimant the sum of £5,500 in respect of injury to feelings together with the sum of £1423.38 in respect of loss of earnings (total compensation of £6923.38) and the claims against the second named respondent were dismissed in their entirety.

In early September 2008, the first respondent advertised a job vacancy for a bilingual secretary. The Job Card for the post stated “the ideal candidate should have a good enough level of Spanish to be able to communicate with Head Office over email and phone and follow instructions accordingly”. Under the heading of “Qualifications/experience”, the Job Card continued “must be fluent in English and Spanish, computer literate (Excel) and have excellent organisational skills, preferably the candidate should have office/admin experience, knowledge of sage accounts system”.

The claimant attended for interview at the first respondent’s premises on 10th September 2008. The claimant was interviewed by two representatives of the first respondent, namely Mr Fox, Manager, and Ms Goyal, who is Spanish. The Tribunal found as fact that the interview was very short, only 10 to 15 minutes. The claimant was not asked any questions in relation to the ICT, administrative or organisational skills referred to in the Job Card for the post. The claimant was asked in very general terms whether she had used computers. The claimant was not asked about her previous work experience. The interview was conducted in both Spanish and English.

There was a telephone in the interview room. In the course of the interview, Ms Goyal made a telephone call. This took the claimant by surprise. Ms Goyal spoke on the telephone to someone in Spain whom the claimant understood to be Ms Goyal’s manager. After this telephone conversation, Ms Goyal asked the claimant her age. She also asked the claimant, firstly, if she was married, secondly, if she had a boyfriend, thirdly, if she wanted to have a boyfriend and, fourthly, if she had children. After being asked these questions, the claimant felt very embarrassed. She was thrown by these questions and therefore felt that she was not able to properly demonstrate her abilities. The claimant wanted to leave the interview as quickly as possible. The interview ended very quickly after these questions were asked. The claimant felt awkward and was unable to ask questions of the interviewers at the end of the interview. The tribunal found as a fact that the manner of Ms Goyal during the interview was unfriendly and abrupt. The tribunal further found that Ms Goyal displayed a lack of enthusiasm and disdain towards the claimant as a potential candidate for the post.

In the course of these proceedings, it became clear that the candidate appointed to the post of bilingual secretary was a Spanish national and native Spanish speaker. In the Replies, the first respondent indicated that the decision as to who should be appointed to the post was taken according to the Spanish level of the candidates. The first respondent also stated that a perfect Spanish level was required. The first respondent also contended in the Replies that the claimant’s Spanish level was not fluent and that she made basic linguistic errors when she spoke in Spanish in the course of the interview. The tribunal found as a fact that the claimant was at least as well qualified and had comparable work experience and skills to that of the successful candidate Ms Beltran. The tribunal further found as a fact that the claimant did not make basic linguistic mistakes in Spanish during the course of the interview.

On 5 November 2008, the claimant served a statutory questionnaire in relation to alleged discrimination alleging that she had been asked inappropriate questions at interview in relation to her age, marital status, current relationship status and whether she had any dependants. The first respondent failed to serve replies to this questionnaire within the statutory time limit. Replies were eventually furnished to the claimant’s representative at a Case Management Discussion on 26 May 2009.

There were no pre-set questions for the interview. The first respondent did not have any Equal Opportunities Policy nor any Recruitment and Selection Policy and Procedure. The first respondent had not provided any relevant training in recruitment and selection or equal opportunities to the interviewers.

The tribunal assessed the award for injury to feelings in this case at the very top end of the lowest of the bands in the Vento case that is £5,000 and the tribunal up-dated this figure in accordance with recent rulings both locally and by the EAT in order to take account of inflationary factors since the Vento bands were determined. Accordingly, the tribunal concluded that the appropriate award for injury to feelings in this case was £5,500.

By way of concluding remarks, the tribunal wished to place on record its shock and dismay at the treatment afforded to the claimant in this case. Having heard the evidence, the tribunal was satisfied that the first respondent effectively set out to recruit a native Spanish speaker for this post with the likelihood being that the successful candidate would be a Spanish national. The tribunal was also left with the strong suspicion that the first respondent’s purpose in asking a series of inappropriate, irrelevant and potentially discriminatory questions was to assess whether the claimant was likely to require maternity leave in the near future. The Tribunal further wished to record that it was appalled at the first respondent’s complete disregard for accepted standards of practice in relation to recruitment and selection as set out in the Equality Commission’s Codes of Practice and guidance for employers.


Peter Cooley v OCS Security Services Case Ref 4125/09

Award of costs; misconceived claim in relation to length of continuous service

The Claimant’s claim was dismissed at pre hearing review on the basis that he did not have the minimum required continuous service of one year to claim unfair dismissal. The claimant commenced employment with the respondent in Aberdeen on 19 February 2007. The claimant left the respondent’s employment in April 2008. He then took up employment with another security business G4S Secure Solutions, where he worked from 17 April 2008 to 10 May 2008. This job did not work out for the claimant, so he contacted his previous manager in the respondent’s Aberdeen branch. A job was available which the claimant started in Aberdeen during the latter part of May 2008.

The claimant then sought a transfer to the Belfast branch of the respondent. His manager assisted him in this and the claimant left Aberdeen on 28 August 2008 to start work in Belfast. Work was not immediately available but the claimant did restart with the respondent on 17 November 2008. He was dismissed on 10 December 2008. The tribunal held that the break in service of three weeks from 17 April to 10 May 2008 was fatal to the claimant’s claim for unfair dismissal. His employment with the respondent restarted after the short term of employment with G4S Secure Solutions and he was dismissed on 10 December 2008 and thus did not have the minimum required continuous service of one year.

The Tribunal was satisfied that the claim was, from the outset, misconceived and held that the Claimant was unreasonable in pursuing it and on application by the Respondent and in accordance with the Rules, an award of £500 was made against the Claimant. The claimant told the tribunal that he had sought the advice of the Law Centre, who had told him that his claim was flawed by the break in employment. Despite this, he continued with his claim himself. The respondent wrote two letters to the claimant on 2 and 14 October 2009, pointing out the flaw in the claimant’s case and inviting him, even at that late stage, to withdraw the claim and thus save the costs of the hearing and the air fare from Aberdeen of the respondent’s witness, Mr Ward. These letters were ignored by the claimant.


Samuel Brush –v- The HIV Support Centre Case Ref 5741/09IT

Redundancy dismissal; failure to follow statutory procedures or consider alternatives, such as 'bumping'

The Tribunal unanimously found that the claimant was unfairly dismissed by the respondent and awarded compensation to the claimant of £27,857.93 (subject to recoupment of Jobseekers Allowance). The claim of unlawful age discrimination was dismissed. The Respondent did not enter a response to the claim either within the original time limit or at any stage during the three extensions of that original time limit. A response was submitted outside the extended time limit but was rejected as being out of time and no review was sought of that decision.

The claimant started unpaid work with the respondent in May 1986 as a volunteer and worked as a volunteer for the next ten years. He was instrumental in setting up most of the services that the respondent now provides and sat on the respondent’s management committee for three years as a volunteer. During his last two years working as a volunteer, he had responsibility for internal and external training and for educational services. On 6 May 1996, he became an employee of the respondent as the Volunteer and Training Manager. He remained in that position for nearly 13 years until his dismissal on 31 March 2009. During that period of paid employment, he was asked to cover other posts within the respondent’s organisation. This included acting as director for six months and sharing the role of finance officer for 18 months. At the time of his dismissal in 2009, he was the longest serving member of staff.

The claimant’s post was originally funded from the general or core funds of the respondent. From 2006 his post was three-fifths funded by funding received from the Community Volunteer Scheme. On 12 January 2009, Kieran Harris, the Chief Executive, wrote to the claimant stating that CVS funding was coming to an end on 31 March 2009 and that three-fifths of his salary funding would then cease. He suggested a meeting.

At that meeting on 13 January 2009, the claimant told Mr Harris that he had been promised that his post would revert to core funding at the end of CVS project funding and that there would be a level playing field for redundancies. The second meeting was held on 4 February 2009 attended by the claimant, Mr Brownlee, Mr Grain, the chairperson, and Mr Harris. The claimant was assured at that meeting by Mr Harris that “no-one was talking about redundancies. “ A third meeting was held on 27 February 2009 attended by the claimant, Mr Brownlee, Mr Grain, Mr Harris and Ms McCutcheon, a Board member. It was a very short meeting and Mr Grain simply told the claimant that he would be made redundant and that the respondent had sought legal advice. A fourth and final meeting was held on 29 March 2009 attended by the claimant, Mr Brownlee, Mr Grain, Mr Harris and Ms McCutcheon. The claimant was informed that he would be made redundant on 31 March 2009 (in two days’ time.) He was given no letter of termination at this stage.

On 20 March 2009, the respondent left a memorandum in the claimant’s pigeonhole which began; “Given that you will be leaving the centre on Tuesday 31 March 2009,” and asked for the return of work-related materials. There was no mention of the reason for the termination or of any appeal process. Mr Brownlee wrote to the respondent on the same day to appeal the decision to select the claimant for redundancy. He received a holding reply dated 3 April 2009 saying that the correspondence had been forwarded to the trustees. Mr Brownlee and the claimant heard nothing further in respect of an appeal.

The Tribunal found that the respondent clearly failed in this case to follow the three stage procedure set out in the 2003 Order. While it held a series of meetings with the claimant and his representative, it failed to comply with the first stage of the procedure in that no written statement of the reasons which led the respondent to contemplate dismissal was furnished to the claimant together with an invitation to an interview. Furthermore the claimant was not offered an appeal. His NIPSA representative had to take the initiative, and lodge a written appeal, which was then effectively ignored. The dismissal was therefore automatically unfair and the Tribunal increased the compensatory award by 25% given the failure to comply with the statutory procedure.

The Tribunal noted that even if this dismissal had not been automatically unfair under the terms of the 2003 Order, the tribunal would still have concluded that the dismissal was unfair in all the circumstances of this case as it could not be said, in the opinion of the tribunal, that there was either effective or genuine consultation and further the respondent did not appear to have given any consideration at all to the possibility of finding suitable alternative employment for a longstanding and experienced employee by considering making another employee redundant or by considering rearranging some or all of the duties then undertaken by other employees.

The Tribunal noted that the respondent seemed to focus automatically on the claimant as the only candidate for redundancy, even though a reasonable employer in these circumstances would have looked at the workforce as a whole and considered whether there were alternative solutions. The tribunal, on the evidence before it, could not conclude that the claimant would still have been selected for redundancy if the correct procedures had been applied by the respondent. Given the variety of alternative approaches that could have been adopted by the respondent in terms of “bumping” or reallocating duties, the tribunal concluded that it was not in a position to consider a Polkey deduction at any level.

The claimant’s evidence was that all the other members of staff, with the exception of the part-time finance officer, were younger than him and he stated that he felt that he had been singled out for redundancy because of his age. In Madarassay, it was held that a simple difference in status (whether that is a difference in age or a difference in gender) and a difference in treatment, is not in itself sufficient to move the burden of proof to the respondent. The Tribunal noted that the claimant’s allegation of unlawful age discrimination faced a difficulty in that the part time finance officer, Mr Lawther, was older than him and he was not made redundant. Furthermore there was no evidence on which the tribunal could reasonably conclude that the decision to select the claimant for redundancy was motivated by his age. The claim of unlawful age discrimination was therefore dismissed.a leading provider of employee support services.
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