THE INDUSTRIAL TRIBUNALS 

CASE REF:	2185/01

APPLICANT:	Daniel McAllister

RESPONDENTS:	1.	Precision Industrial Services Limited
			2.	Elevation Equipment Company Limited (In Liquidation)

DECISION 

The unanimous decision of the tribunal is that the applicant had not been discriminated against and his application is dismissed.

Appearances:
The applicant was represented by Ms K Purvis, North Belfast Advice Partnership.
The first named respondent was represented by Ms H Gibson, Barrister-at-Law, instructed by Messrs Babington & Croasdaile Solicitors.

1.	The Office of Industrial Tribunals and Fair Employment Tribunal had received a letter dated 27 August 2004 from PricewaterhouseCoopers, liquidators for the second named respondent to the effect that they would not be attending the hearing.  A copy of this letter was given to both representatives.  

2.	The issues as to whether the applicant was disabled under the provisions of the Disability Discrimination Act had been determined by a tribunal at a Preliminary Hearing.  The applicant was unable to read and write and that tribunal was satisfied that these impairments affected the applicant’s “memory or ability to concentrate, learn or understand”.

3.	The applicant’s complaint related to disability discrimination and he alleged that he had been discriminated against when asked to attend a training course on the operation and use of elevation equipment.  He further complained that he had been victimised in that a post of regional contract supervisor had been advertised in the Belfast Telegraph and the applicant considered that this was his post and he had been left feeling extremely vulnerable.  

4.	The applicant was employed as an area supervisor by the first named respondent.  He carried out industrial and domestic cleaning contracts.  The applicant was asked to attend a training course conducted by the second named respondent on 27 February 2001.  He attended early that day to ascertain whether the course involved any reading or writing.  Mr Ball, the instructor, told him that there was a test which would require reading and writing and if he could not read or write he was not likely to pass the test as he would not be able to use the equipment under the Health & Safety legislation.  The course related to the use of boom/electric scissors lifts.  The applicant said that the instructor read from a handbook for about two hours and at the conclusion each candidate was given sheets of paper with questions with multiple choice answers.  There appears to have been a general discussion amongst those who attended and the applicant was able to indicate the correct choice and therefore passed the test.  However, at the conclusion of the course he was issued with a card which indicated he had attended a Safety Awareness course whereas the others had received cards to the effect that they had been trained on how to operate “boom/electric scissors lifts”.

5.	The applicant said that he raised this issue with David Coburn and asked him to phone Mr Ball for an explanation.  His evidence was that some three months later he got his card and certificate.  However, the tribunal had before it the letter dated 14 March 2001, just two weeks after the course, from the second named respondent to David Coburn explaining that whilst initially they had reservations about the applicant’s ability to operate self propelled scissors and boom lifts they were prepared to issue the certification on the understanding that he should not operate the machine on his own and that he should be accompanied by another employee who was capable of reading written instructions or warning signs before carrying out work on aerial platforms.

6.	The applicant said that he disguised the fact that he could not read or write from his fellow workers but asserted that management knew.  Ms Gibson objected to this evidence as being contradictory to the evidence at the Preliminary Hearing and referred the tribunal to Professor Davidson’s report which stated “was able to hide his reading and writing problems by using a dictaphone and with significant help from his partner Cathy” and later in the same report “he had gone to all sorts of lengths to disguise his language problems, eg., as noted above, use of a dictaphone, getting his partner to read forms and travel with him in the car to new destinations as he cannot follow directions”.

7.	Mr John McFadden, Managing Director of the first named respondent company said that it was customary for them to use outside trainers in order for the company to get accreditation.  He said that he only became aware of the applicant’s disability after the Course.  He was concerned so he met with the applicant and asked him whether he had filled in an application form to the company on commencing employment, did he fill in time sheets on a weekly basis, and did he fill in security documents?  The applicant agreed that he had done all of those.  Mr McFadden said that there had been nothing in the applicant’s conduct which gave rise to a belief that he could not fill these forms out.  He was very concerned about the company’s position with regard to Health & Safety and to the liabilities of the company under its insurance policy.  

8.	The letter of 14 March 2001 from the second named respondent put the onus on the first named respondent, in that they would only give the applicant a qualified certification because of his disability in reading and writing.  

9.	As regards the applicant’s complaint that he had been victimised regarding the placing an advertisement in the Belfast Telegraph for the post of Regional Contract Supervisor he said that this proposed post bore no resemblance to the applicant’s position as an Area Supervisor.  The applicant had no reason to believe that it was his job that was being advertised and he was told that.  The applicant did not make application for the post and in any event the post was not filled.  

10.	The tribunal considered whether the applicant had established less favourable treatment at the conclusion of the training course, when the second named respondent had failed to issue him with a card and certificate.  The tribunal were satisfied that neither the first named respondent nor the second named respondent were aware of his disability prior to the course being held.  The second named respondent was made aware at the commencement of the course that the applicant had a reading and writing problem, the first named respondent only became aware after the conclusion of the course.

11.	Notwithstanding his disability the applicant passed the test and the tribunal are of the opinion that the second named respondent was justified in withholding full certification initially on Health & Safety grounds but were prepared when representations were made on his behalf to give a qualified certification, to the effect that he could operate the equipment provided he was accompanied by another employee who was capable of ensuring that written instructions or warning signs were clearly pointed out prior to carrying out work on an aerial platform.

12.	The tribunal were of the unanimous opinion that the applicant had not shown that he had been less favourably treated because of his disability.

13.	The tribunal were of the unanimous opinion that the applicant’s complaint that he had been victimised regarding the advertising of what he considered his post must fail.  The post advertised by the first named respondent was for a Regional Contract Supervisor at twice the salary that was paid to the applicant and it was clear from the evidence of Mr McFadden that the applicant had been made aware that it was not his post and in fact the applicant had not applied for the post.

14.	The tribunal were satisfied that the applicant had failed to show that he had been discriminated against or victimised on the grounds of his disability and his application is dismissed. 

Chairman:

Date and place of hearing:	7 September 2004, Belfast.

Date decision recorded in register and issued to parties: