Carney v Wood Effects Company Ltd  (561/02 Disability Discrimination)  (26 Sep 2002)
THE INDUSTRIAL TRIBUNALS 

CASE REF NOS:	2256/01; 561/02

APPLICANT:	John Carney

RESPONDENT:	Wood Effects Company Ltd

DECISION

The unanimous decision of the tribunal is that the applicant was dismissed for a reason connected with his disability and that he is entitled to the sum of £2,556.00 compensation for injury to feelings.

Appearances:

APPLICANT:		Mr N Jones.

RESPONDENT:	Mr M Power, Barrister-at-Law, instructed by Ferguson Solicitors.

1.	The applicant had been employed by the respondent company from October 1997 until 5 March 2001.  The agreed facts were that the applicant had suffered a various serious injury to his left hand at work in August 2000 and as a result lost his thumb and forefinger.  He had suffered considerable pain and injury from this and also associated depression which had meant that he was not able to return to work.  He gave evidence that he had a fear of this particular workplace but had returned to cut a piece of wood with a colleague simply to try and overcome his fear of the machinery.

2.	The overriding difficulty in this case is that the applicant and his wife were friendly with the owners of the company, Melanie and Martin McGovern.  This friendship extended outside the workplace and also was related to Mrs Carney being a childminder for the McGoverns’ child.  After the traumatic accident the McGoverns continued to see the applicant and his wife.  They tried to involve the applicant in social events which the company were having.  It was obvious to the tribunal that this was a most distressing state of affairs which had resulted in the applicant losing his job, his marriage and the friendship that he had enjoyed with Mr and Mrs McGovern.  We accept that the McGoverns asked the applicant, at social occasions, when he would be able to return to work and they genuinely made an offer of giving him any job that he felt he would be capable of doing but the applicant was not able to return to work up to and including March 2001 for the reasons outlined in his medical condition.

3.	Mrs McGovern was in charge of the payroll and after the applicant’s statutory sick pay had been exhausted she was still receiving documentation from the Social Security Agency and the Inland Revenue which related to the applicant being considered as an employee.  She decided to send out a P45 to the applicant to tidy up her records.  She stated very fairly to the tribunal that she now knew that this had been wrong and it had operated to terminate the applicant’s employment.  We accept that there was a discussion in the respondent’s office between Mrs McGovern and the applicant when she told him she was going to send the P45.  We also accept that he did not realise its significance until he talked to a Social Security officer who informed him that it had terminated his employment.

4.	The applicant presented a claim to the Tribunals on 1 June 2001.  Mr Jones applied to the Tribunal to have a claim of disability discrimination added later in the year and the respondents objected at the outset of the hearing to this claim as they said it was out of time.  All parties agreed that the applicant could be considered a disabled person within the meaning of Section 1 of the Disability Discrimination Act 1995.

5.	The Tribunal has considered the originating application and is unanimous in its opinion that it is capable of amendment to include a claim that the dismissal was due to the applicant’s disability.  The respondent was in the position to deal with the question of reasonable adjustments as set out in Section 6 of the above-mentioned Act and Counsel submitted that the respondents had offered any job to the applicant by way of a reasonable adjustment and he had not been able to take up the offer.

6.	This case is particularly distressing because it is obvious to the Tribunal that everyone has been telling the truth and that all parties are extremely upset about the accident in August 2000 and its subsequent traumatic effect on the applicant himself.  It would appear to the Tribunal that the action has come about because the respondents did not have procedures in place or have a knowledge of employment law.  This is not a small company now and we are pleased that they taken steps to get advice on employment matters but in March 2001 it was obvious to the Tribunal that Mrs McGovern did not have sufficient knowledge to deal with the termination of the applicant’s employment.  He had been valued a good employee up to the accident in August 2000.

7.	Counsel for the respondent pleaded frustration of contract in that the accident had brought the contract of employment to an end and therefore there could not be a dismissal and subsequently an unfair dismissal.  The Tribunal considered Harvey on Industrial Relations and Employment Law and in particular Vol I DI para 359.  Having considered the various aspects of frustration the Tribunal comes to the conclusion that this could have been properly pleaded if the employer had sufficient medical knowledge before it to make the decision that the applicant was never going to return to work with them again.  Although we have heard evidence in relation to the applicant’s conversation with the respondent in or about February/March 2001 where the respondent says that the applicant said he would never return and the applicant denied saying that the Tribunal are satisfied that that was the time for the respondent to get an informed medical opinion about the likely prospects of the applicant returning to work.  For a good employee, with an unblemished record, to be dismissed by means of a P45 through the post simply is not the actions of a reasonable employer albeit it was done by innocent mistake.

8.	The Tribunal is not satisfied that the contract was frustrated because there was simply not the knowledge before the respondent to know that the contract was impossible of performance in the future.  If they had had a medical report which stated that the applicant was unlikely to return to work in the future then they would have been perfectly entitled to dismiss him on that basis.  The only knowledge they had was that the applicant was disabled and they dismissed him knowing that and without taking further steps to ascertain the medical position.

9.	We therefore find that the dismissal of the applicant was related to his disability and in fact it was the reason he was dismissed.  He still is not able to work although he is performing some functions for a voluntary organisation and is hopeful that he may yet return to work in the future.  His representative is making no claim for a compensatory award.  We make a basic award for notice payment and an award of £1,500 for injury to his feelings.  This award is made because at the time of the dismissal the Tribunal is satisfied that the applicant was suffering from depression and he was still on very good terms with his employers and at that time his feelings were not particularly injured by the dismissal.  There are a number of other factors in his life which are giving rise to depression and we do not think that those can fairly be put onto the respondent.

	Basic Award

	3 weeks @ £192					=		£576
	3 weeks notice payment @ £160 net		=		£480

	Total									£1,056

	Injury to Feelings					=		£1,500

										£2,556

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

____________________________________
M P PRICE
Vice President

Date and place of hearing:	26 September 2002, Enniskillen

Date decision recorded in register and issued to parties: