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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Girvin v Carrickfergus Borough Council ... [2008] NIIT 1696_07IT (01 September 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/1696_07IT.html Cite as: [2008] NIIT 1696_7IT, [2008] NIIT 1696_07IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1696/07

CLAIMANT: Pauline Girvin

RESPONDENT: Carrickfergus Borough Council – Support Services

DECISION

The unanimous decision of the tribunal is that the respondent failed to comply with the duty under Section 4A of the Act to make reasonable adjustments in respect of the claimant. This failure did not occasion any financial loss. The tribunal awards £15,000 for injury to feelings and £3,550 in respect of interest, making a total award of £18,550. The claims in respect of constructive unfair dismissal, harassment, disability-related discrimination in relation to a training course and discrimination on the ground of disability are dismissed.

Constitution of Tribunal:

Chairman: Mr Kelly

Members: Mr Killen

Mrs McReynolds

Appearances:

The claimant was represented by Mr Brian McKee, Barrister-at-Law, instructed by Donnelly & Kinder, Solicitors.

The respondent was represented by Mr David McGaughey, Barrister-at-Law, instructed by the Legal Services Department, of Belfast City Council.

THE ISSUES

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

(i) Was the claimant constructively and unfairly dismissed by the respondent?

(ii) Did the respondent fail to fulfil its statutory duty to make reasonable adjustments in respect of the claimant?

(iii) Did the respondent directly discriminate against the claimant on grounds of her disability?

(iv) Did the respondent unlawfully discriminate against the claimant for disability-related reasons?

(v) Was the claim under the Disability Discrimination Act ('the Act') presented within time and, if not, should time be extended?

FINDINGS OF FACT

RELEVANT WORK HISTORY:

2. The claimant was initially employed by Carrickfergus Borough Council (the respondent) on 20 March 2000 as a Lifeguard/Recreation Assistant. Until the end of 2004, approximately 50% of her time was spent on Lifeguard duties at the swimming pool in the Leisure Centre and approximately 50% of her time was spent on either erecting and dismantling equipment or cleaning duties.
3. On 12 January 2005 the claimant was diagnosed with fibromyalgia, a musculoskeletal fatigue and pain disorder. She was absent from work on sick leave from January 2005 to April 2005. The respondent properly accepted that the claimant was at all relevant times disabled for the purposes of the Act.
4. The claimant's GP recommended a return to work on light duties in or around April 2005. She returned to work initially for a brief period at the Leisure Centre. She then performed administrative duties at the Marina for a period of approximately six weeks before returning, again very briefly to the Leisure Centre. In or around June 2005 the claimant had a meeting with Norman Houston, the respondent's Development Manager and Lynn Gordon, the respondent's Human Resources Manager. As a result of that meeting she was given a further temporary posting at Oakfield Community Development Centre (Oakfield) to cover annual leave booked by Caretaker/Receptionists employed at Oakfield. This temporary posting was also intended to involve administrative and light duties. The respondent did not give the claimant, either orally or in writing, a job description specifying which duties the claimant was to undertake and which duties she was not to undertake. This failure is particularly significant because a dispute later arose about whether the claimant was performing the full range of duties normally undertaken by an absent Caretaker/Receptionist. One of the Caretaker/ Receptionists, Linda Telfair later went on sick leave and maternity leave and the claimant remained at Oakfield, covering her absence, until October 2006.
5. In October 2006, once the annual leave, sick absence and maternity leave absences at Oakfield had concluded, the claimant was sent to work at the Ramparts Fitness Suite in the Leisure Centre, with what were described as light duties, as a Fitness Instructor. Those duties included some cleaning duties in the Fitness Suite. Again, no specific job description was provided. The claimant remained in that post until her resignation on 25 June 2007.

OCCUPATIONAL HEALTH REPORTS:

6. In August 2005, some eight months after fibromyalgia had been diagnosed, the claimant was sent by the respondent to their Occupational Health Specialists, Blackwell Associates. A report was compiled on 31 August 2005 and received by the respondents at the start of September 2005. That report described the claimant as currently unfit for her Lifeguard duties. In relation to the claimant's prognosis, there is no dispute between the parties over what was recorded in that report. There is however a substantial dispute about how the contents of that report should have been interpreted by the respondent in relation to the claimant's prognosis. That report recorded, in material part:-

"Fibromyalgia, along with the associated complaints of irritable bowel syndrome and chronic fatigue tend to be long term conditions. Recent research would suggest that the outlook for complete recovery of these conditions is relatively poor although the likelihood is that individual suffers (SIC) will improve to some extent. Certainly given the lack of progress to date, I can only advise that Ms Girvin's current health problems are likely to continue for the indefinite future. It is probable that her symptoms will improve over the next one to two years however."

7. The tribunal concludes that this report could only properly have been read as indicating that, in general;

(i) the condition giving rise to the claimant's disability was a long term condition;

(ii) in relation to this condition, complete recovery was unlikely; and

(iii) partial recovery was likely.

In relation to the prognosis for the claimant in particular, the tribunal concludes that the report could only properly have been read as indicating that:-

(i) the claimant's inability to work as a Lifeguard was likely to continue for the indefinite future;

(ii) there may have been some improvement in the claimant's condition over the next one or two years; and

(iii) it was not suggested that it was likely that the claimant would improve sufficiently to work as a Lifeguard either in the next one or two years or for the foreseeable future.

A further report was compiled on 29 November 2006. That report stated in material part:-

"I would accept that due to her musculo-skeletal problems and her fatigue, she is unlikely to be able to cope with any form of employment with a substantial manual handling component or where she would be required to stand for long periods. She would on the other hand be in my view immediately fit for sedentary/clerical/administrative work if such a position were available for her.

The critical adjustment in this case would be the provision of light or administrative duties. It must remain the employer's decision as to whether this adjustment can however be reasonably made or not. If no such adjustment can be reasonably made, then I believe Mrs Girvin is likely to remain unfit for her substantive duties as a Lifeguard for the indefinite future. In my view however, the likelihood is that Mrs Girvin's condition will ultimately improve at least from the functional perspective and I would not therefore advise that she is permanently unfit. This may have implications for her should she seek early payment of her pension under the NILGOSC pension scheme."

It is difficult to reconcile the two last sentences quoted with the rest of this report, other than perhaps as a reference to the eligibility test for early retirement under the NILGOSC scheme and therefore as an indication that she could not have been regarded as unfit for all work. However, the report, read as a whole, makes it plain that the claimant was unlikely to be able to work as a Lifeguard for the indefinite future. The appropriate adjustment was identified as a transfer to light or administrative duties. One of the issues to be considered in this case is whether the actions taken by the respondent in moving the claimant from temporary post to temporary post while continuing to regard her as a Lifeguard, was sufficient to satisfy its duty to make reasonable adjustments. That potentially raises two issues; firstly whether the absence of specific job descriptions, occupational health reports or risk assessments relating to each of the temporary positions was significant and secondly, whether in the light of the medical evidence available, the respondent should have considered a permanent transfer to a different post in which her disability would not have placed her at a disadvantage.

MEETINGS BETWEEN THE CLAIMANT AND MANAGEMENT:

8. The claimant alleged that she was harassed at meetings with Norman Houston (Development Manager) and Lynn Gordon (Human Resources Manager). She alleged that she had been reminded repeatedly that her position was not secure and that she had been told that she should be grateful that she had a position at all. She also alleged that at a one to one meeting with Mr Houston, he accused her of "manoeuvring her way into the Centre". That was a reference to Oakfield.
9. The way in which the respondent chose to deal with the claimant's disability was likely to, and did, induce feelings of job insecurity. The claimant was effectively moved from one post to another to cover various administrative staff shortages as and when those shortages arose. It would appear that no one in the respondent's management structure gave any long term or strategic thought to her situation in terms of a reasonable adjustment following receipt of either report from Blackwell Associates. Each of the respondent's witnesses stated that they took an optimistic view of the claimant's prospects for recovery and that they hoped that she would resume her duties as a Lifeguard. The evidential basis for this optimism is not readily discernible. This is a point to which the tribunal will return later.
10. The tribunal takes into account the general approach adopted by the respondent in relation to the claimant's disability (see paragraph 41) and also the credibility issues in relation to the claimant (see paragraph 42). The tribunal concludes that it is more likely than not that the respondent intimated to the claimant in the course of these meetings that each of the various postings were in fact temporary. Given the nature of these postings, it would be surprising if this were otherwise. However the tribunal is not satisfied that either Mr Houston or Ms Gordon expressed themselves in the precise terms attested to by the claimant. If the meetings had been conducted as alleged by the claimant, the tribunal would have expected a complaint to have been made about both Mr Houston and Ms Gordon. A complaint was only made about Ms Gordon and the claimant has not been able to provide a satisfactory explanation for her failure to lodge and pursue a complaint against Mr Houston. The tribunal therefore concludes that the claimant has misinterpreted or has put a gloss on otherwise more anodyne remarks which were not meant to humiliate the claimant and which could not reasonably have been interpreted as humiliating the claimant.

RATE OF PAY:

11. In November 2005 the claimant was still working at Oakfield and at that stage was filling in for Linda Telfair, a Caretaker/Receptionist who was then on maternity leave. The claimant e-mailed Ms Gordon on 28 November 2005 to ask for the same rate of pay as that received by Ms Telfair. The claimant alleged that she was undertaking the same duties as Ms Telfair. On the same day, Ms Gordon replied to ask the claimant to confirm that she was in fact carrying out the full range of Ms Telfair's duties "as per her official job description". The claimant was also, in a separate e-mail, referred to Mr Houston.
12. No real attempt was made by the respondent to investigate the claimant's complaints in this respect. In particular, no attempt was made by either Ms Gordon or Mr Houston to check what the claimant was actually doing in Oakfield, to supply her with a job description for the post she was then filling, or to supply her with a copy of Ms Telfair's job description. She did not receive a copy of that job description despite reminders from the claimant until the current proceedings were under way. The respondent had, as pointed out above, not taken the elementary step of listing the light duties which the claimant was expected to undertake and the heavier duties which she was not in fact, according to the respondent, permitted to undertake at Oakfield. That failure is perhaps typical of the respondent's approach to the duty under Article 4A of the Act. Ms Gordon accepted in evidence that she did not have any first hand knowledge of what the claimant was actually doing at Oakfield. She had received her information from Mr Houston, even though, for the bulk of the time during which the claimant was at Oakfield, he was not responsible for that centre. Mr Houston gave evidence that, during the period when he was actually responsible for Oakfield, he had visited the centre on a number of occasions. He had seen the claimant behind reception but he had not checked on her duties. He thought that she would have been asked to "undertake basic tasks". Ian Eagleson, the respondent's Director of Support Services, who had responsibility for human resources issues, similarly did not know what duties were performed by the claimant. The respondent did not take the opportunity to refer details of Ms Telfair's job description to Blackwell Associates to see whether the claimant could in fact do all or substantially all of the duties normally undertaken by Ms Telfair or whether any reasonable adjustments would have been appropriate.
13. The manner in which the respondent chose to respond to the claimant's queries was careless. The respondent's witnesses accepted that if the claimant had been undertaking the full range of duties normally undertaken by Ms Telfair, she should have been paid the appropriate rate for those duties. However, the respondent's witnesses maintained in evidence that the claimant had not been in fact carrying out all of Ms Telfair's duties. It is difficult to understand why Lynn Gordon or Norman Houston had not taken the simple step of going to Oakfield to meet the claimant to discuss the issue with her and to clarify precisely the nature of her duties and those normally undertaken by Ms Telfair. It is equally difficult to understand the delay on the respondent's part in furnishing Ms Telfair's job description.
14. Ms Gordon e-mailed the claimant on 28 February 2006 to confirm "previous conversations" during which she and Mr Houston had advised the claimant that if Ms Telfair's post was to be filled, even on a temporary basis, the post would have to be advertised by way of an internal trawl. Ms Gordon specifically stated in that e-mail that "this is for reason of equal opportunities and fair employment". Ms Gordon was the respondent's Human Resources manager. She maintained that the trade unions would insist on such a post being trawled. She did not, in the opinion of this tribunal, demonstrate any proper awareness of the possibility of a reasonable adjustment transfer in these circumstances, either on a permanent or a temporary basis. She maintained in evidence that the trade unions would have complained if such a move had taken place – as if anticipated trade union objections would have obviated the need to observe the requirements of the Act.
15. Ms Gordon claimed to have given serious consideration to the requirement for a reasonable adjustment and to have referred to the Code of Practice, when she considered the position of the claimant, but could not remember which parts of the Code she had considered. Given that Ms Gordon would have been aware for some time that she was due to give evidence at this tribunal hearing, it is perhaps surprising that she had not taken the opportunity to refresh her memory before this hearing commenced. Ms Gordon also claimed in response to cross-examination that she had considered moving the claimant to a substantive administrative post but the only example of such a move that she could think of over the two and a half years of post-disability employment was one advertised post for which the claimant had applied – not a reasonable adjustment transfer initiated by the respondent. The tribunal notes in particular the terms of an e-mail from Ms Gordon to the claimant's then line manager on 24 April 2006 which included the phrase "I think she thinks she can stay in the admin post for as long as she wants to." The tone of this e-mail does not appear to be consistent with a considered effort on the part of the respondent to secure the claimant's continued employment by way of a reasonable adjustment.

CORRESPONDENCE WITH GP:

16. In April 2006, the claimant, as part of continuing discussions about the post she occupied in Oakfield, obtained clarification from Dr Haggan, her GP, that she was capable of light lifting, eg chairs and tables. Dr Haggan wrote this confirmation on a compliment slip. Ms Gordon was not prepared to accept this and wrote to the GP for further details. Ms Gordon claimed in her evidence-in-chief that the compliment slip was hard to read. However, the GP's handwriting on the compliment slip is perfectly legible and furthermore the annotations made by Ms Gordon on the slip make it plain that she was capable of reading it. If there were genuine concerns about the claimant's ability to perform particular tasks, it is not clear why the respondent did not simply seek guidance from Blackwell Associates who had already examined the claimant.

STABILITY BALL INSTRUCTOR'S COURSE:

17. In March 2007, the claimant applied for a place on a stability ball instructors course. She was at that stage engaged on light duties as a Fitness Instructor in the Ramparts Fitness Suite and had not yet been selected for redundancy. She was refused a place on the course. Kenny Stewart, another employee working as a Fitness Instructor at Ramparts who did not suffer from a disability was given a place on the course. Evidence from Mr Houston to the tribunal was that the refusal was -

(i) because of a fear that attendance at the course would exacerbate her medical condition; and

(ii) because the claimant was working in the role of a Fitness Instructor as a reasonable adjustment and the training sought would not have any relevance to her substantive role as a Lifeguard.

18. A contemporaneous e-mail from Mr Houston to another manager stated that the course was refused because the claimant was "working to reasonable adjustment and suffers from Fibromyalgia (Duty of Care)". Mr Houston, in cross-examination, maintained that the training course was not required for a Lifeguard. However, he accepted that Kenny Stewart was also a Lifeguard, although he had worked as a Fitness Instructor for considerably longer than the claimant.

He accepted that his decision was, at least in part, based on the claimant's disability-related absences between 16 October 2006 and February 2007. Her "medical condition was a major factor in my decision making". He further accepted that he had no "direct knowledge" of the 2005 changes to the Act and had not taken advice on how to deal with a disability-related absence. He could not recall ever reading the report from Blackwell Associates of November 2006. He candidly accepted that this matter "probably was not attended to in the way it should have been".

19. The tribunal concludes that the respondent was still regarding the claimant as a Lifeguard at this late stage, despite clear medical evidence indicating that she was unlikely to be able to return to those duties for the foreseeable future and despite her inability to perform the duties of that post throughout the previous two years. Kenny Stewart was also a Lifeguard and did not have a disability. The tribunal concludes that the refusal of a place on this course was made without any proper consideration, eg a detailed consideration of the course content and its potential relevance to her continued employment with the respondent, and without obtaining a further medical report from Blackwell Associates.

REDUNDANCY EXERCISE:

20. The Leisure Centre was scheduled for closure for a period of several months for refurbishment. The respondent embarked on a redundancy programme and consultation with the recognised trade unions. Certain receptionist posts and certain cleaning posts were ring-fenced in that only the staff currently holding those particular posts could apply for the post-redundancy posts in that particular specialism. All other posts were trawled among the staff facing redundancy, including the claimant.
21. The claimant applied for two Fitness Instructor posts, one full-time and one part-time. She was unsuccessful. The claim form contains no complaint against the interview panel in either instance and there was no application to amend the claim form. The claimant had also applied for an administrative post but failed to attend for the interview. She stated in evidence that she was too discouraged by her failure to obtain either of the Fitness Instructor posts and by her treatment by the respondent to attend that interview. The respondent delayed the process for two weeks to enable the claimant to attend but she did not do so.
22. The claimant was told that her employment would be terminated on 20 July 2007 and that she would receive her redundancy payment on that date.

DISCIPLINARY INVESTIGATION:

23. On Friday 15 June 2007 the claimant telephoned the Council Offices but was unable to speak to Caroline Maghie, her then line manager or to Ms Maghie's line manager Bernie Tolan. She left a message with Carol Hall to explain that her son was unwell and she could not attend on that day. There was a dispute about whether she then went on to state definitely that she would also be unable to attend work on the following Monday and Tuesday or whether that issue had been left open. There was also a dispute as to whether the claimant had flagged this as unpaid leave. Carol Hall was not called to give evidence and it does not appear that the respondent interviewed Ms Hall or took a statement from her at that time. The only direct evidence before the tribunal of what was said during this telephone call was the evidence of the claimant. The tribunal is conscious of the difficulties relating to the claimant's credibility and it is therefore not in a position to reach firm conclusions over what was said during the telephone call between the claimant and Carol Hall.
24. The claimant was notified that a preliminary investigation would be commenced into her overall attendance at work. The claimant was at that point within one month of her redundancy date. It would appear that her sick absence record had been poor, due in large measure to her disability, and there were certain instances where she had been four or five minutes late on occasions. The tribunal was referred to no earlier informal or formal warnings about non-attendance or poor timekeeping. Given the timeframe and the proximity of her redundancy date, the tribunal concludes that it was perhaps unusual for a respondent to commence a preliminary disciplinary investigation against an employee who was to be made redundant within a month. It was unlikely that the preliminary investigation, any consequent disciplinary hearing and consequent appeal hearing could have been completed in time to have any practical effect. An informal warning was the normal first step identified in the respondent's disciplinary procedure for matters of minor misconduct (which was defined as including absence from work without sufficient cause and lateness). Given the wealth of detail readily available and given the imminent redundancy, the respondent could simply have chosen to deal with the matter informally, rather than conduct a preliminary investigation before deciding what to do. That said, the claimant accepted that the respondent, as an employer, was entitled to apply its disciplinary procedure to any employee and there was no evidence of other employees being treated differently.
25. The claimant resigned by e-mail dated 25 June. In that note she referred to two incidents -

(i) being refused unpaid leave to attend her son's last day at school. Her son suffered from dyslexia and she stated she needed to see the teacher;

(ii) being accused of taking time off without permission when she had phoned to say her other son was ill. In her evidence-in-chief she described the instigation of the disciplinary investigation as the final straw.

CLAIMANT'S COMPLAINT ABOUT MS GORDON:

26. On 4 May 2006, the claimant wrote to the respondent complaining of Ms Gordon's attitude to her at a meeting on 21 April 2006. She stated:-

"Every time we have a meeting to assess my situation, she tells me I will be paid off eventually and reminds me that my temporary position is very short term.

I suffer from Fibromyalgia which is made worse by the stress of these meetings and I feel I am not getting the support from your Duty to Care"

27. This was followed by a more detailed letter on 6 June 2006. She complained that at meetings with Ms Gordon and Mr Houston she was made to feel she could lose her job at any time and that Ms Gordon made her feel that her job was hanging by a thread. These were very serious allegations which would have prompted a serious and careful reaction from any responsible employer which understood its responsibilities under the Act.

Mr Eagleson accepted that if the allegations in those letters were true, the conduct of the managers had been disgraceful. Despite that, no investigators were appointed by the respondent until "the Autumn" of 2006. No more precise date could be provided. The respondent argued that, given Ms Gordon's relatively senior rank, it had been difficult to find suitable investigators to deal with the complaint. It had been necessary to approach other local government employers. The report still had not been completed when the claimant left her employment in June 2007, one year after the complaint.

RELEVANT LAW:

28. Section 3A of the Disability Discrimination Act 1995 (as amended) provides:-

"3A Meaning of "Discrimination"

(1) For the purposes of this Part, a person discriminates against a disabled person if -

(a) for a reason which relates to the disabled person's disability, he treats them less favourably than he treats or would treat others to whom that reason does not or would not apply, and

(b) he cannot show that the treatment in question is justified.

(2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with the duty to make reasonable adjustments imposed on him in relation to the disabled person.

(3) Treatment 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 .

(4) A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person."

29. Section 3B of the Act provides as follows:-

(1) "For the purposes of this Part, a person subjects a disabled person to harassment where, for a reason which relates to the disabled person's disability, he engages in unwanted conduct which has the purpose or effect of –

(a) violating the disabled person's dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2) Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of sub-section (1) only if, having regard to all the circumstances, including in particular the perception of the disabled person, it should reasonably be considered as having that effect."

30. Section 4A of the Act provides as follows:-

"4A Employers; Duty to make adjustments.

(1) Where -

(a) a provision criterion or practice applied by or on behalf of an employer, or

(b) any physical feature or premises occupied by the employer;

places the disabled person concerned at a substantial disadvantage in comparison with the persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent that provision criterion or practice, or feature, having that effect."

31. It is also necessary to refer to Section 18B:-

"18B Reasonable Adjustments; supplementary -

(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with the duty to make reasonable adjustments, regard shall be had, in particular, to -

(a) the extent to which taking a step would prevent the effect in relation to which the duty is imposed;

(b) the extent to which it is practicable for him to take the step;

(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of his financial and other resources;

(e) the availability to him of financial or other assistance with the respect to taking the step;

(f) the nature of his activities and the size of his undertaking.

(2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with the duty to make reasonable adjustments:-

(c) transferring him to fill an existing vacancy;

(d) altering his hours of working or training;

(e) assigning him to a different place of work or training".

32. In Environment Agency v Rowan [2008] IRLR 20, the EAT re-stated earlier guidance to the effect that an Employment Tribunal when considering a claim that an employer has discriminated against an employee pursuant to Section 3A(2) of the Act by failing to comply with Section 4A duty must identify:-

"(a) the provision criterion or practice applied by or on behalf of an employer, or

(b) the physical feature of premises occupied by the employer,

(c) the identity of non disabled comparators (where appropriate), and

(d) the nature and extent of the substantial disadvantage suffered by the claimant. It should be borne in mind that identification of a substantial disadvantage suffered by the claimant may involve the consideration of the culminative effect of both the provision criterion or practice applied by or on behalf of an employer and a physical feature of premises so it would be necessary to look at the overall picture."

33. The EAT stated that in their opinion a tribunal cannot properly make findings of a failure to make reasonable adjustments without going through that process. Unless the tribunal had identified the four matters as set out above it cannot go on to judge if any proposed adjustment is reasonable. It would be simply unable to state what adjustments were reasonable to prevent the provision criterion or practice, or feature, placing a disabled person concerned at a substantial disadvantage.
34. In Archibald v Fife Council [2004] IRLR 651, and the House of Lords considered the case of an employee who had been employed by the defendant as a road sweeper, a post-graded as a manual worker, who following surgery became unable to carry out the duties of that post. The employee could however do sedentary clerical work and was keen to do so. The Lords held that the duty of an employer was to take such steps as it was reasonable, in all the circumstances of the case, for him to have to take in order to prevent any arrangements made by or on his behalf placing a disabled person at a substantial disadvantage, was triggered where an employee became so disabled that she could no longer meet the requirements of her job description. Transferring an employee to fill an existing vacancy included an upwards transfer, as well as sideways or downwards transfers and clearly involved more than allowing an employee to apply for such posts. On the facts of that case, where there had been no equal or lower grade job to which the employee could be transferred, transferring her to a sedentary position which she was qualified to fill, even where that meant a move upwards in grade terms, was among the steps which it might have been reasonable in all the circumstances for the Council to take once she could no longer fulfil the requirements of her contracted post. To the extent that the duty to make reasonable adjustments required, an employer was not only permitted but was obliged to treat a disabled person more favourably than others; the part of Section 6(7) of the 1995 Act which provided nothing in that part of the 1995 Act was to be taken to require an employer to treat a disabled person more favourably than he treated others was prefaced by the words "subject to the provisions of this Section".
35. Section 17A(1) of the Act provides that where a claimant proves facts from which the tribunal could, apart from that sub-section, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act. The EAT in Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 suggested that in a reasonable adjustments case, the burden of proof will shift if an adjustment could reasonably have been made and it would then be up to the employer to show why it had not been made.
36. The Employment Appeal Tribunal in the case of Project Management Institute v Latif [2007] IRLR 579, when dealing with a reasonable adjustment case concluded that:-

"The paragraph in the DRC's Code is correct. The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably have inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing substantial disadvantage envisages the duty but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made. That is not to say that in every case the claimant would have to provide the detailed adjustment that would need to be made before the burden would shift. It would, however, be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage that the question of whether it could be reasonably be achieved or not."

37. The Code of Practice issued by the Equality Commission provides at paragraph 5.8 that the duty to make reasonable adjustment applies to contractual arrangements and working conditions. Paragraph 5.11 states that substantial disadvantages are those which are not minor or trivial. Paragraph 5.18 indicates that assigning a disabled person to a different place of work might be a reasonable adjustment.
38. In relation to the shifting burden of proof, the Code provides at paragraph 4.43 that:-

"To prove an allegation that there has been a failure to comply with the duty to make reasonable adjustments, an employee must prove facts from which it could be inferred in the absence of an adequate explanation that such a duty has arisen and that it has been breached .If the employee does that the claim will succeed unless the employer can show that it did not fail to comply with its duty in this regard."

39. In relation to time limits, Paragraph 3 of Schedule 3 to the Act provides that an industrial tribunal shall not consider a complaint unless it is presented within three months from when the act complained of was done. Acts extending over a period (continuing acts) shall be treated as done at the end of that period. Time may be extended if the tribunal considers it just and equitable to do so.

The Court of Appeal in Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96, stated that the burden of proof is on the claimant to prove, either by direct evidence or by inference from primary facts , that the alleged incidents of discrimination were linked to one another and were evidence of a continuing discriminatory state of affairs covered by the concept of "an act extending over a period".

40. In Lewisham London Borough Council v Malcolm [2008] UKHL 43, the House of Lords considered the case of a local authority housing tenant who suffered from schizophrenia and was therefore disabled for the purposes of the Act. He had sub-let his flat in breach of tenancy. The council sought repossession. The tenant's defence to the repossession proceedings was that the breach of the tenancy conditions had been caused by his disability and that therefore the court was precluded from making any order for possession against him. That defence failed.

The correct comparator was a tenant of the council who had no mental illness and who had sub-let his flat, and not a tenant of the council who had not sub-let his flat.

Parliament would have meant the directed comparison to be a meaningful comparison in order to distinguish between treatment that was discriminatory and treatment that was not.

The defendant's schizophrenia was not in the mind of the council when it decided to serve notice to quit and take possession proceedings against him. It was not enough for him to show that, objectively viewed, there was a connection between his schizophrenia and his sub-letting. He needed to show also, that his mental condition played some motivating part in the authority's decision to terminate his tenancy and recover possession of the premises.

DECISION

41. Respondent's attitude to disability

The tribunal was particularly concerned at the approach taken by the respondent to its obligations under the Disability Discrimination Act. In particular:-

(i) The respondent's disciplinary and grievance procedures referred to various types of discrimination as examples of serious misconduct. One glaring omission was the lack of any reference to disability discrimination.

(ii) When Ms Gordon, the respondent's Human Resources manager was asked in cross examination to indicate who in the respondent's organisation was responsible for supervising reasonable adjustments, she replied that she "didn't know" – "not in my job description – it might fall to me" – "the buck stops ultimately with the Chief Executive – but it might be me".

(iii) Ms Gordon appeared to have no knowledge that the claimant had, in the minds of some staff at least, been put forward as available on demand to provide cover in respect of annual leave, sick leave, etc.

(iv) No attempt had been made by the respondent to provide detailed job descriptions in relation to the claimant's temporary postings or to set out those duties which the claimant was expected to undertake as part of a reasonable adjustment and those duties which were excluded. No specific medical advice had been obtained in relation to these posts and no risk assessments appear to have been carried out, even though the posts in Oakfield and in Ramparts both had the potential to involve some manual work.

(v) It is apparent that nobody in the respondent's management structure had any detailed knowledge of what the claimant was actually doing when placed in either Oakfield or the Ramparts Fitness Suite. If these temporary postings had been regarded by the respondent primarily as a reasonable adjustment for the purposes of the Act, rather than as a measure of administrative convenience to the respondent in filling in for absent staff, the tribunal would have expected the respondent to have kept itself better informed.

(vi) Ms Gordon was asked in cross-examination whether the respondent, during the period when the claimant was in Oakfield, had considered placing the claimant in a substantive administrative post. Ms Gordon replied "not at this stage" – "we didn't have an admin post to my knowledge". There was in fact no evidence before the tribunal that a substantive transfer to administrative or light duties was ever considered by anyone within management as a reasonable adjustment in respect of the claimant. Mr Eagleson, the respondent's Director of Support Services, who was at all relevant times responsible for overseeing the personnel department, confirmed during cross-examination that he had not ever considered moving the claimant permanently to an administrative grade or to post with lighter duties. He had never come across such a transfer. Mr Houston accepted that the claimant, on the basis of the Blackwell Associates reports, was, at the relevant times, likely to remain incapable of carrying out the duties of a Lifeguard. He was asked what the responsibilities of an employer were in such circumstances. With commendable frankness, he replied that "I would think that we would have to find out what the individual was capable of, with a view to seeing if the individual could be redeployed". When asked when this was done, he replied "It was not done".

(vii) Ms Gordon claimed to have referred to the Code of Practice when considering what the respondent was required to do in relation to the claimant but could not remember which parts of the Code.

(viii) The respondent was not content to rely solely on the expert medical evidence contained in the reports compiled by Blackwell Associates in relation to the claimant's prognosis. Ms Gordon also relied on what a friend had told her about the medical condition suffered by the claimant and on her own internet research. Mr Eagleson also stated that he may have relied on discussions with colleagues.

(ix) Ms Gordon was taken out of the loop from 13 May 2006, ie from the date on which the claimant sent her initial letter of complaint about her. From that period onwards, there was no Human Resources manager overseeing the claimant's situation in relation to reasonable adjustments. Ms Gordon made it clear in evidence that when line managers asked her for advice in relation to the claimant after that date, she refused to give advice. Mr Houston accepted in cross-examination that there was no-one available to give HR advice in relation to the claimant's position after 13 May 2006. The tribunal can understand that Ms Gordon would not wish to be in the position of having to advise the respondent in relation to an employee who had a current complaint against her. The tribunal also accepts that it was the respondent's policy that an employee whose actions are currently under investigation should not deal with matters affecting the complainant. However, the investigation was significantly delayed and given the subject matter of the complaint, the need for continuing advice on reasonable adjustments should have been obvious to the respondent. It is difficult for this tribunal to understand why alternative arrangements were not put in place.

(x) The tribunal was not referred to any policy document or other settled strategy on the part of the respondent to deal with disability discrimination issues.

(xi) Mr Eagleson, during the redundancy exercise, and when he was fully aware of the claimant's disability, specifically drew two possible vacancies to her attention. One was a vacancy as a gravedigger. He "felt obliged" to do so.

(xii) It was obvious from the evidence of the respondent's witnesses that they were unwilling to regard the claimant as anything other than a Lifeguard and that they had excluded from consideration any reasonable adjustment outside that narrow job description unless it was purely temporary in nature.

41. The credibility of the claimant

The tribunal has concluded that the claimant's evidence in some respects was not credible. For example:-

(i) the claimant claimed in evidence and maintained in cross-examination that she had carried out inductions of new members at the Fitness Suite at Ramparts when she was working there as a Fitness Instructor. She described in detail in response to questions from the tribunal the process which she followed during inductions. However, it emerged in cross-examination that a fee was payable of £2.50 per induction. Others who worked as Fitness Instructors had claimed this fee. She had not claimed the fee on a single occasion. She stated that "money was not her life". The tribunal concludes that this evidence was not truthful. The claimant was a single parent with three children in a relatively low paying job and she had already raised the issue of a pay differential between her and Ms Telfair in Oakfield and had pursued that matter with some vigour. The tribunal does not accept that she was disinterested in money or indeed that she should have been disinterested in money. The tribunal concludes that she did not perform inductions at Ramparts.

(ii) The claimant stated in evidence that Mr Houston had backed up Ms Gordon during the meetings at which the claimant alleged she was treated badly. She also stated in evidence that Mr Houston had accused her separately of "manoeuvring her way into the Centre (Oakfield)". No complaint or grievance was raised against him under the internal procedure. The tribunal concludes that if her evidence to this tribunal had been accurate in this respect, such a complaint or grievance would have been raised at the same time as the complaint against Ms Gordon was raised. The tribunal therefore concludes that her evidence in this respect was not truthful.

(iii) The respondent temporarily moved the claimant to an administrative pay scale to facilitate internal accounting shortly after she went to Oakfield in June 2005. This resulted in an increase of gross pay of £162 per month. That would have resulted in a net increase of more than £25 per week. The claimant did not accept that happened. The tribunal prefers the evidence of the respondent on this point.

(iv) The claimant sought to expand considerably on the contents of her witness statement during cross-examination. For example, she said that Ms Gordon had said the claimant "would be paid off eventually" and that "I should be grateful they were making these reasonable adjustments for me". When it was put to the claimant that these specific allegations were not in her statement, her response was "I was trying to keep it brief". The tribunal does not accept that this was true.

43. TIME LIMITS

(i) The claim form was lodged in the tribunal office on 19 September 2007 the effective date of dismissal was the 25 June 2007, when the claimant resigned. The complaint of constructive unfair dismissal is therefore within time and within the jurisdiction of the tribunal.

(ii) The claim form raises an issue of breach of contract but this does not appear to be a claim separate from the constructive unfair dismissal claim referred to above.

(iii) The complaint of a breach of the Section 4A duty to make reasonable adjustments relates to an alleged ongoing failure to make such adjustments up to the effective date of termination. The tribunal has considered the relevant work history as set out in paragraph 2 above, together with the evidence given by the claimant and by the respondent's witnesses. For the reasons set out later in this decision the tribunal is satisfied that there was such an ongoing failure to comply with Section 4A and that this failure did in fact persist until the EDT. The complaint under Section 4A is therefore within time and within the jurisdiction of the tribunal.

(iv) The issue of time limits in relation to the complaints of direct disability discrimination under Section 3A(5) and in relation to the complaints of disability related discrimination under Section 3A(1) will be considered as necessary along with the substantive issues raised by those complaints.

44. CONSTRUCTIVE UNFAIR DISMISSAL

The Court of Appeal determined in Western Excavating (ECC) Ltd v Sharp 1978 [IRLR] 27 that an employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment; or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract.

The claimant had lodged a grievance against Ms Gordon on 4 May 2006, more than one year before her resignation. That grievance alleged that she had been repeatedly harassed and victimised and that at each meeting she was told by Ms Gordon that she would be paid off eventually and that her temporary positions were very short term. The claimant's resignation e-mail of 23 June 2007 does not refer to this long outstanding grievance or to the respondent's failure to make reasonable adjustments. It refers only to the stress and strain she had been under "in these past couple of weeks". The e-mail did not refer to, or make any allegations in respect of, the previous two years during which the claimant was, according to her grievance, being harassed and victimised. The letter refers only to two matters; the refusal of one day's unpaid leave to attend her dyslexic son's last day at school and the commencement of the disciplinary investigation into her attendance and timekeeping. It concluded "I feel I have been forced into leaving before my redundancy notice date".

The reasons for the claimant's resignation, as expressed in that resignation letter, are difficult to reconcile with the "final straws" described by the claimant in the final written submission to the tribunal. These were the "speed of the disciplinary proceedings initiated against her" and "the failure to afford her the same protection as other admin staff in the redundancy process".

The tribunal concludes that if the reasons put forward in the final written submission had indeed been the reasons which finally led the claimant to resign, they would have appeared in the resignation e-mail. The tribunal also notes that the claimant failed to attend an interview for an administrative post for which she had applied as part of the redundancy selection exercise. Given that failure, it is particularly difficult to give any credence to the assertion in the written submission that a "final straw" was the respondent's failure to protect her in that selection process. Furthermore, the tribunal did not hear detailed evidence from either party about the differential treatment afforded to groups of employees in the course of that exercise. However on the evidence before it, the tribunal concludes that only certain groups of employees had the advantage of participating in ring-fenced competitions for particular posts. There was no evidence that the claimant would have benefited in this respect if she had previously been given a permanent administrative post or a permanent post involving light duties.

The conduct of an employer cannot amount to a repudiation of the contract of employment sufficient to ground a constructive unfair dismissal claim, if that conduct does not involve a breach of contract. Discriminatory acts can, of course, amount to repudiatory conduct – Derby Specialist Fabrication Ltd v Burton [2001] IRLR 69. As indicated above the tribunal is puzzled at the respondent's decision to instigate a preliminary step in the disciplinary procedure at such a late stage of the claimant's employment when the redundancy notice had issued and where the claimant's previous and significant absences had not provoked such a reaction. Clearly, if the disciplinary action were either a breach of the respondent's own procedures or if it were an act of victimisation linked to her grievance or indeed if it were related to or based on her disability there would have been a sufficient repudiation of the contract to justify the claimant leaving. No allegation was made by or on behalf of the claimant that the preliminary disciplinary investigation was itself an act of victimisation.

The tribunal has carefully considered the evidence before it and concludes that the respondent's action in instigating the disciplinary investigation was an action it was entitled to take under it's procedures and that it was a reaction to the incident on 15 June 2007. An employer in such circumstances is entitled to at least investigate the pattern of attendance and timekeeping. There had been no determination of fault at this stage and no penalty had even been considered at the time of the claimant's resignation. The tribunal is satisfied that the decision to instigate the investigation had not been influenced by the grievance lodged over a year earlier. That grievance did not appear to be in anyone's mind in June 2007. The claimant was not actively pursuing it and had not even referred to it in her resignation e-mail. The respondent was not pursuing it with any particular vigour either and, if some form of retaliation had been contemplated by the respondent's managers, it is difficult to see why they would have waited this long.

The tribunal heard no evidence in relation to the refusal of leave to attend her son's last day at school. There was in particular no evidence that the claimant had been treated any differently than any other member of staff who was not disabled or had not committed a protected act would have been treated. The parties were afforded an opportunity to make an application in the light of the decision of the European Court in Coleman which issued after the end of the hearing but before the lodgement of final written arguments. Neither party wished to do so.

The tribunal concludes that the claimant resigned and therefore chose to forego her redundancy entitlement in response to the two matters to which she referred in her resignation e-mail and in response only to what she perceived as pressures in the last two weeks of her employment. These matters were not, in the opinion of the tribunal sufficient to amount to a repudiation by the employer of the contract of employment. While the tribunal has found that the respondent acted unlawfully in relation to Section 4A and therefore Section 3A(2) (see below), that unlawful behaviour was not, in the opinion of the tribunal, the reason for the claimant's resignation. The claim of constructive unfair dismissal and breach of contract therefore fails.

45. DIRECT DISABILITY DISCRIMINATION/VICTIMISATION

There were a number of disputes between the claimant and the respondent, some of which are summarised above. The final written submission lodged on behalf of the claimant quite properly sought to narrow the issues. That submission detailed a claim of harassment and direct discrimination arising out of the meetings between the claimant and Mr Houston and Ms Gordon.

The tribunal does not accept, for the reasons set out above in paragraph 10, that the conduct of Ms Gordon or Mr Houston in the course of those meetings amounted to harassment within the meaning of Section 3B (2) or direct discrimination.

46. DISABILITY RELATED DISCRIMINATION

The other matter raised in the submission, apart from constructive unfair dismissal and failure to make reasonable adjustments, was a claim of both direct and disability-related discrimination in connection with the claimant's application for a place on the stability ball instructor's course.

Both claims are out of time. The incident giving rise to the claims took place some six months before the date on which the claim was lodged in the tribunal office and in the opinion of the tribunal was not part of a pattern of continuous discrimination. The claimant would have known that Kenny Stewart had been given a place on the course, and would have been aware that he was not disabled. She also would have known that the decision was made by Mr Houston. The claimant has not been able to advance a satisfactory reason for her failure to pursue this matter promptly, even by way of an internal complaint, as she had done in relation to her dispute with Ms Gordon. Given the absence of any explanation for the delay, and given the length of the delay, the tribunal concludes that it would not be appropriate to extend the time limit for lodging a claim in relation to the refusal to give the claimant a place on the stability ball instructors training course

47. FAILURE TO MAKE REASONABLE ADJUSTMENTS

The tribunal concludes that the medical reports obtained by the respondent and considered above in Paragraph 6 made it plain that the claimant was both disabled and unlikely for the foreseeable future ever to be able to return to her contracted employment as a Lifeguard. That information was available to the respondent from the start of 2005 when the claimant had first been diagnosed with this condition and it is not clear why the respondent chose to wait for a further nine months before seeking an occupational health report in this case.

The decision of the House of Lords in Archibald v Fife Council [2004] IRLR 651, (see Paragraph 32 above) makes it clear that the Section 4A duty is triggered when an employee becomes so disabled that she could no longer meet the requirements of her job description. That was the position in the present case from January 2005, and to the extent that it needed to be confirmed by the specialist medical opinion obtained by the respondent, it was confirmed at the start of September 2005. The relevant provision, criterion or practice was the requirement for heavy lifting in the claimant's contracted job as a Lifeguard. Her continued employment as a Lifeguard albeit with temporary variations over a prolonged period of time caused her a substantial disadvantage, ie her inability to fulfil the requirements of that post with consequent job insecurity.

Having considered the provisions of the Code, the Act and the Archibald decision, the tribunal concludes that a reasonable employer, in the circumstances pertaining in this case from January 2005, when the claimant was first diagnosed with Fibromyalgia rendering her unfit for continued employment as a Lifeguard, and certainly no later than 1 September 2005, when the occupational health report was obtained, should have considered a substantive move to a different post involving lighter work or administrative work. This was not done. Instead the respondent slotted the claimant in as required to fill posts that were temporarily vacant. No thought appears to have been given to any strategy to retain the claimant in employment into the medium or long term. The complete absence of any proper consideration, on the part of anyone in the respondent's management structure, of how the claimant's continued employment could be secured by a reasonable adjustment is illustrated by the inability of the respondent's witnesses to confirm which, if any, vacancies had arisen within the respondent's workforce during the relevant two and one half years.

The claimant was clearly incapable, by reason of her disability, of performing the duties of a Lifeguard. It was equally clear that it was unlikely that she would be capable of performing those duties for the foreseeable future. The optimism about the claimant's prognosis, which the respondent's witnesses doggedly sought to maintain in evidence, is unsupported by the medical evidence and is frankly inexplicable. The appropriate reasonable adjustment, a move to an administrative post or a post with lighter duties, was clearly identified in the medical reports compiled by Blackwell Associates. The tipping point at which the burden of proof shifts has been established (Tarbuck) and the respondent has failed to discharge the burden that now falls to it. It has failed to show that no such reasonable adjustment was possible.

The tribunal therefore concludes that the respondent has failed to fulfil it Section 4A duty and that this failure was unlawful discrimination for the purposes of Section 3A(2).

48. REMEDY

The tribunal has heard no evidence on which it could conclude that the claimant suffered any financial loss as a result of the unlawful discrimination identified above. There is no evidence that her earnings were lower than they would have been if the unlawful discrimination had not occurred and there is no evidence that would support a finding that the claimant would, had she been treated differently, not have been selected for redundancy in 2007. Only a small number of employees were afforded the benefit of participation in ring-fenced competitions for certain posts. There was no evidence upon which the tribunal could conclude that the claimant, if she had been treated differently, would have been in a position to participate in one of these competitions or that she would have been successful. The tribunal notes in particular the claimant's failure to attend for interview for an administrative post as part of the redundancy selection exercise.

The tribunal regards the failures of the respondent as serious and takes into account the lengthy period of time during which the claimant was left in an uncertain position, when a reasonable employer would have moved to make a reasonable adjustment at an early stage. The tribunal carefully observed the claimant giving evidence, and while in certain significant respects the tribunal had concerns about the credibility of the claimant, the tribunal concludes that she was being entirely truthful when she stated that her continuing insecurity in relation to employment caused her distress over a prolonged period.

The tribunal considers that the injury to feelings caused to the claimant by the sustained failure on the part of the respondent to properly address the statutory duty under Section 4A was substantial and that it fell towards the upper end of the middle band in the guidance set out in Chief Constable of West Yorkshire Police v Vento [2003] 102. The EAT held in the case of Miles v Gilbank (Transcript 14/9/05) that the effects of inflation should be taken into account:-

"We make the point, if we may, that actually Vento is now three years old and that is a point which is of relevance because, whilst we do not have the raging inflation which has been known in various stages of this country's history, we nevertheless do have quiet inflation which devalues monetary values."

During the five years since the determination of Vento, the retail price index has increased by approximately 9%. On that basis, the middle band should now be from £5,500 to £16,000 approximately.

The tribunal is conscious that an injury to feelings award is not punitive in nature; it is meant to be compensatory and therefore, when considering the award in this case, the tribunal has considered only the injury to feelings suffered by the claimant and has excluded from consideration the concerns that it has about the way in which the respondent failed to fulfil it's responsibilities under the Act.

The tribunal awards £15,000 for injury to feelings.

42. Interest at the rate of 8% per annum from the date of the respondent's contravention of the Act is potentially payable under Regulation 7(1)(a) of the Industrial Tribunals (Interest on Awards in Sex and Disability Discrimination Cases) Regulations (Northern Ireland) 1996. The tribunal is obliged by Regulation 3(1)(b) to consider whether to include interest on an award. It may calculate the interest by reference to a period other than the period running from the date of the contravention to the date of the calculation if it is of the opinion that serious injustice would be caused by calculating interest by reference to that period. While there is no doubt that the respondent's failure to make a reasonable adjustment became more blameworthy with the passage of time, the failure to comply with Section 4A began, at the latest on 1 September 2005, on receipt of the first occupational health report. That report was not sought by the respondent until nine months after the initial diagnosis and some five months after the claimant returned to work on light duties. In Derby Specialist Fabrications Ltd v Burton [2001] IRLR 69, the EAT considered a case where interest of £1,267 had been awarded on an injury to feelings award of £5,000,and where interest had been calculated by reference to the standard period running from the date of contravention. The EAT stated:-

"The employment tribunal did not err in awarding interest on its award of £5,000 compensation for injury to feelings so as to cover the whole of the period during which injury to feelings had taken place, in accordance with (equivalent GB legislation). The tribunal did not arrive at a perverse conclusion in deciding not to exercise its powers under Regulation 6(3) to award interest from the midpoint of the date the discrimination began and the date of the award on the grounds that "serious injustice" would be caused if interest was to be awarded from the date of the act of discrimination.

The mere fact that an award for injury to feelings reflects injury occurring over a period of time cannot of itself justify a departure from the normal rule in Regulation 6(1) (a). It is clear that Parliament intended that, unlike interest on other awards where the midpoint was to be taken, interest on an award for injury to feelings should normally be from the date of the discriminatory act. That must be taken to allow for the fact that injury to feelings is not a one-off event but something that will often persist over a period of time."

In the present case, once the burden of proof had shifted, it was the respondent's task to prove that no reasonable adjustment could have been made throughout all or part of the relevant period. This could have been achieved by proving that no suitable vacancies had arisen during that period. No such proof was provided. The tribunal concludes that no serious injustice would be caused to the respondent if interest were calculated over the entire period commencing 1 September 2005.

The tribunal also considered whether, having adjusted the Vento figures to allow for inflation, an award of interest on top of that adjusted award would involve an element of double counting. The tribunal is satisfied that this is not the case. The EAT in Ministry of Defence v Cannock [1994] IRLR 509, stated that:-

"The Industrial Tribunals had not erred in awarding interest on awards for injury to feelings. The MoD's argument that interest on awards for injury to feelings was inappropriate because at the date of the unlawful act, the award for injury to feelings was very much lower than it is today, was misconceived in that it confused inflation and interest rates.

Delay between the date of the wrong and the date of the award of compensation may prejudice the injured party in two distinct ways. Because of the time-lag the injured party has lost the use of the money she would have received immediately after the wrong was done to her. Interest is awarded to compensate for that loss. In addition, since the courts award compensation in the currency of the day, the value of the pound may be less than it was when the injury occurred.

Although awards for injury to feelings have increased both due to inflation and due to greater appreciation of the distress and hurt which discrimination may cause, an industrial tribunal should always award at the going rate for compensation, even if it is more in real terms than it would have been at the date of the injury complained of."

Taking the relevant period as 1 September 2005 to 14 August 2008, the interest payable is £3,550.

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

Chairman:

Date and place of hearing: 16 June 2008, Belfast

Date decision recorded in register and issued to parties: