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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McIlwrath v Navigator Blue Ltd [2005] NIIT 2417_03 (15 June 2005) URL: http://www.bailii.org/nie/cases/NIIT/2005/2417_03.html Cite as: [2005] NIIT 2417_03, [2005] NIIT 2417_3

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2417/03

CLAIMANT: Anthony Charles McIlwrath

RESPONDENT: Navigator Blue Limited

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent. Due to the nature and complexity of the claimant's remuneration package from the respondent, it will be necessary for the tribunal to convene on a separate day to hear forensic evidence and therefore this decision deals only with liability.

The unanimous decision of the tribunal is that the claimant was not discriminated against on the grounds of his gender.

Appearances:

The claimant was represented by Mr Martin Wolfe, Barrister-at-Law, instructed by Stephen Begley & Co., Solicitors.

The respondent was represented by Mr Michael Humphries, Barrister-at-Law, instructed by McCartan Turkington Breen, Solicitors.

COMPLAINT

The claimant complained that he had been subjected to unlawful sex discrimination contrary to the Sex Discrimination (Northern Ireland) Order 1976. The claimant also complained that he had been unfairly dismissed. The respondent contended that the claimant had been fairly dismissed on the ground that he was not capable of performing his job due to ill health and also that he had not been subjected to any form of sex discrimination.

REASONS

1. The issues for the tribunal to determine are as follows:-

(i) Was the claimant unfairly dismissed?

(ii) Was he the victim of unlawful sex discrimination.

2. The tribunal found the following facts proved on a balance of probabilities:-
3. 1 The claimant was employed by the respondent as an account director.
4. 2 The claimant became unwell on 18 October 2002, attended his General Practitioner and subsequently was absent from his employment for a number of months on the general ground of ill health and in particular stress.
5. 3 In accordance with company procedure, the claimant was required to provide a medical report dealing with the issue of his fitness to work before he would be able to return to work. The claimant's medical practitioner was provided with the current job description of the claimant. The report of Doctor Sharkey dated 10 January 2003 indicated that:-

"It is essential however that his work and working practices are assessed to ensure that the prevailing circumstances would not render him susceptible to undue stress and the possibility of developing debilitating anxiety".

Doctor Sharkey's report concluded as follows:-

"In conclusion I have no doubt, having read through Tony's job description which you kindly appended, that he will be fit to discharge such duties, however to ensure that he remains so and will do so effectively over a long period of time, it is essential that consideration is given to the matter as outlined above".

6. 4 On 20 January 2003 Mandy Dalm and Terry Corr held a meeting with the claimant at the Ramada Hotel. This was a wide ranging meeting and initially the claimant was consulted about his health and the report of Doctor Sharkey was tabled for consideration. Ms Dalm, Mr Corr and the claimant also discussed the possibility of creating a role for the claimant which was for the sake of convenience labelled as a "Moskito".
7. 5 The directors of the company Ms Dalm and Mr Corr interpreted the report of Doctor Sharkey and indicated that the claimant could not continue in his current position.
8. 6 By a letter dated 28 January 2003 from Mandy Dalm to the claimant the respondent contended that it was clear from the medical evidence that the claimant could not be allowed to return in the same capacity as before and this is why they had to consider alternative working arrangements. The letter went on to set down terms and conditions of this job offer.
9. 7 The claimant responded to this letter by an e-mail of 29 January 2003 basically rejecting the "Moskito" proposal. The claimant also contended that he had been treated unfairly by the company in that when Ms Dalm returned after illness she did not have to provide the medical reports requested in respect of the claimant and arguing strongly that Doctor Sharkey's report indicated that the claimant was able to return to work in his original position.
10. 8 Ms Dalm replied by a letter dated 31 January 2003 re-stating the position of the company which was that the claimant's work and working practices must be assessed and as such on health and safety grounds the claimant would not be permitted to return to work in his original position.
11. 9 The claimant responded by letter dated 1 February 2003 continuing to refuse the "Moskito" project and accusing Ms Dalm and Mr Corr of creating the stress which caused his health problems.
12. 10 The claimant without any further notice returned to work on 3 February 2003 and was asked to leave the premises of the company by Mr Corr.
13. 11 The claimant was subjected to a disciplinary procedure on the ground of his failure to comply with a reasonable work instruction.
14. 12 The disciplinary hearing took place at the Ramada Hotel on 10 February 2003 and it resulted in the claimant receiving a final written warning. The claimant subsequently appealed this unsuccessfully. The company then dismissed the claimant on the basis of ill health.

THE LAW

15. Article 130 of the Employment Rights (Northern Ireland) Order 1996 sets out the circumstances in which an employee can be dismissed and the relevant one for the purposes of this case is the matter of capability. This concept is defined in Article 130(3) by saying that it is assessed by reference to skill, aptitude, health or any other physical or mental quality. In this case we found that the claimant was dismissed on the grounds of his capability to carry out the job for which he was employed.
16. The next legal question for the tribunal arises from Article 130(4) and it is, "whether in all the circumstances of the case including the size and administrative resources of the undertaking did the employer act reasonably or unreasonably in treating this reason as a sufficient reason for dismissing the claimant" and this question is to be determined in accordance with equity and the substantial merits of the case.
17. 1 The law in respect of sex discrimination is found at Article 3 of the Sex Discrimination (Northern Ireland) Order 1976 and this says that a person discriminates against another person if on the grounds of gender the person is treated less favourably than he/she would treat a person of the opposite gender.

CONCLUSIONS

18. The tribunal concludes that the claimant was unfairly dismissed for the following reasons:-

(i) Although the respondent directors did obtain medical information and did consult extensively with the claimant, it quickly became clear that they sought to selectively apply the use of Doctor Sharkey, i.e. it was clear that the respondent looked at the recommendation to review working practices and monitor the claimant to avoid future stress causing his condition to accelerate out of control and looked no further. Viewed in its totality the letter says with specific reference to the claimant's original job description as account director that he was considered fit at the date of the letter to do that job. As it is settled law that an employer who dismisses in accordance with medical evidence will usually act fairly, therefore the tribunal finds that in this case the employer did not act in accordance with the medical evidence. There was clearly a dispute between the parties as to the interpretation of the report of Doctor Sharkey. In such a case, the tribunal finds that a reasonable employer acting reasonably in the circumstances which pertained in this particular case, would have sought a further medical opinion, perhaps, but not necessarily from an independent consultant. The purpose of consultation both with medical doctors and with claimants in such cases is to ensure that employers are fully advised of all relevant circumstances. In this case the tribunal finds that the respondent directors did not act in accordance with the medial advice given and applied so selective an interpretation of the report as to be totally unreasonable. The tribunal does not consider it necessary to make any findings on why the respondent's behaved in this way other than to find that the respondent did not act reasonably and that equity and the substantial merits of the case lie in this instance with the claimant.

(ii) The tribunal finds that the claimant in his e-mail of 3 January 2003 entitled "home coming", was frank in assessing his own weaknesses in his work performance. However, the tribunal finds that this did not have any overt role in the claimant's dismissal as the letter of Mandy Dalm dated 11 March 2003 deals only with the issue of the claimant's health, and the "Moskito" project.

(iii) The tribunal was unable to find that the claimant was treated less favourably on the ground of his gender. The claimant cited Mandy Dalm as a direct comparator within the company. He said that she was not required to provide medical reports after her return to work for an illness/condition of a similar kind. At the time Ms Dalm returned after sickness absence, no procedure existed at that time. This procedure was subsequently put in place and operated in respect of both male and female employees. The tribunal did note that it appeared that external medical reports may have been obtained in respect of some of the female employees, and wondered why this procedure had not been operated in the case of the claimant. On behalf of the claimant Mr Wolfe indicated that he was specifically instructed not to make that case. Accordingly, the tribunal makes no finding on the issue of potential differential treatment between the claimant and two named

female employees in the company. As the tribunal could find no evidence of differential treatment and that Mandy Dalm was not an appropriate comparator, accordingly the claimant's claim that he was discriminated against on the grounds of his gender fails.

Chairman:

Date and place of hearing: 7-9 March and 10 and 15 June 2005, Belfast.

Date decision recorded in register and issued to parties: