Shirlow v Translink [2008] NIIT 229

229_07IT Shirlow v Translink [2008] NIIT 229_07IT (13 June 2008)

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Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Shirlow v Translink [2008] NIIT 229_07IT (13 June 2008)
URL: http://www.bailii.org/nie/cases/NIIT/2008/229_07IT.html
Cite as: [2008] NIIT 229_07IT, [2008] NIIT 229_7IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 229/07

CLAIMANT: Denis Shirlow

RESPONDENT: Translink

DECISION ON A PRE-HEARING REVIEW

The unanimous decision of the tribunal is that the respondent did not fail in its duty under Section 4A of the Disability Discrimination Act 1995, as amended, in the arrangements it made for a recruitment exercise in November 2006 for the post of Signal Person. Accordingly the claimant's claim is dismissed.

Constitution of Tribunal:

Chairman: Ms M Sheehan

Members: Mr Copeland

Mr Irwin

Appearances:

The claimant appeared on his own behalf.

The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

The Issues

There were two issues to be determined:-

(a) whether the respondent had failed in its duty under Section 4A of the Disability Discrimination Act in the arrangements it made for a recruitment exercise in November 2006 for the post of Signal Person; and

(b) whether the respondent did not know and could not reasonably be expected to know that the claimant had a disability and was likely to be affected in the way mentioned in Section 4A(1) by the failure to make reasonable adjustments to the recruitment process referred to at (a) above.

Sources of Evidence

The tribunal heard evidence from the claimant, Mr Damien Agnew, a traffic manager employed by the respondent company, Deborah Sanderson and Mr Paul Donaldson. Submissions were made on behalf of the respondent company. In addition the tribunal was referred to an agreed bundle of documents, which was identified as 'B1'. The tribunal having heard the evidence and considering all the evidence including the documentation before it found the facts as detailed in the paragraphs below.

Relevant Facts

The claimant has been employed by the respondent for nineteen years and at the relevant time was employed as a trackwalker. He had previously been employed as a Signalman in two different locations, Castlerock (January 2000 – January 2001) and Coleraine (January 2001 – August 2002). He had applied for the Castlerock post and been successful at interview. Damian Agnew had been involved in the recruitment process for those two signalman posts. Mr Agnew had also interviewed the claimant for a similar post at Bann Bridge for which the claimant had been unsuccessful.

The claimant suffers from a speech impediment, namely a stammer. There had been a pre-hearing review on the issue as to:-

"Whether the claimant has a disability within the meaning of the Disability Discrimination Act 1995", hereinafter referred to as the DDA.

A decision of the tribunal issued in November 2007 determined that the claimant had a disability within the meaning of the DDA.

The respondent company is a substantial employer with a remit across Northern Ireland. Damian Agnew is manager for all Signalman and crossing keepers employed by the respondent. There was approximately 60 such staff under his control at the relevant time in November 2006. A decision was taken by the respondent company that as part of a recruitment exercise in November 2006 an initial assessment of candidates for suitability for the post would be delegated to an outside organisation. The post of Signal Person was advertised publicly; therefore open to external as well as internal candidates. The candidates for final interviews would be those who passed all the tests at the assessment centre. The assessment process included psychometric testing and a short listing oral interview.

Paul Donaldson carried out the testing at the assessment centre. Mr Donaldson is an independent consultant and worked on behalf of the outside organisation appointed by the respondent company to carry out the assessment process.

The application forms issued by the respondent to all applicants included a monitoring form to ascertain whether any candidate, internal or external, had any disability. The claimant in the form returned to the respondent indicated that he did not consider that he had a disability.

All candidates for the assessment centre received a letter inviting them to the centre and enclosing various documents relevant to the process that would be undertaken at the centre. The letter highlighted there would be a series of tests and that only those who pass each test would undergo "an interview to assess specific skills relevant to the role of Signaller". The claimant accepts he was on notice that he could be required to undergo an oral interview as part of the selection process.

The letter of invitation to the assessment centre also stated "if any special arrangements are required in relation to candidates with disabilities, please contact us as soon as possible on" and a contact number within the respondent company was provided. The claimant accepts that he made no contact with the respondent company to flag up any concern he had regarding his disability or relating to the proposed interview part of the recruitment process.

The claimant attended the assessment centre on 6 November 2006. He successfully passed all the written testing and two computerised tests. Accordingly he reached the final part of the assessment – a competence-based interview.

The competence-based interview was set up to test seven core competences set out at page 51 of the agreed bundle of documents. These included communication skills, interpersonal skills and calmness in a critical situation. The claimant was assessed as not passing four of the seven core competences – in effect failing to provide sufficient evidence or examples that he was competent in the area being tested. The oral interview tested the candidate's ability to communicate their abilities in the core competences by providing examples of the skill being tested. This was the final part of the process to assess fitness for appointment. There was to be a final interview process to be held on another date, which would assess the merit order of the candidates.

On the evidence of the claimant it was clear to the tribunal that the claimant did not prepare himself for such a competence-based interview. The claimant admitted at hearing that he "only glanced" at some of the booklets sent out to him with the invitation to the assessment centre. The claimant did not have previous experience of competence-based interviews. The claimant accepted in evidence that Mr Donaldson's notes of the interview were an accurate record. The claimant's explanation for his lack of examples was "with a speech impediment you try to keep it as short as you can". However in answer to the tribunal's questions the claimant stated he "just wanted to leave, didn't want to give any more examples – could have but didn't".

It was not in dispute between the parties that the Signal Person's post was a "safety critical" post. Clear communication particularly in a crisis situation was an important element of that post. The core competences and the assessment centre process had been adopted by the respondent company as "best practice". It was a Network Rail Process and used as a standard across the United Kingdom.

The claimant stated at hearing that he accepted there would need to be an oral element to the selection process. The tribunal having heard the claimant give evidence accept the claimant's contention that his stammer means it can take him longer than someone who does not have a stammer or other speech impediment to say something. The claimant found the use of a single interviewer unsettling because the lack of eye-to-eye contact affects his stammer. Lastly, the interviewer's failure to acknowledge his impediment and reassure the claimant that he could take his time made the claimant uncomfortable.

The claimant contended that the interviews were time bound. While the respondent company contended that the interviews were not time bound, the tribunal noted that the opening script prepared by Paul Johnson included an indication to candidates that the interview would take "approximately 30 minutes". There were seven core areas to be tested so that time allocation provided something between four to five minutes per competence area. However the tribunal is satisfied that the time allocation was not immutable or inflexible. It is clear from the notes of the interviewer, Mr Donaldson, that in the areas where the claimant did not meet the standard on his initial answer, Mr Donaldson tried to prompt additional examples from the claimant. In fact time was not an issue during this interview.

Having heard the claimant's evidence and observed his demeanour, the tribunal is satisfied that he found difficulty with the lack of eye-to-eye contact with the interviewer. Mr Donaldson in giving evidence confirmed the claimant's speech impediment was notable. However his notation regarding the candidate's speech impediment was noted only in the area of communication skills, as it was relevant to that area. The speech impediment in its own right did not bring an assessment of not competent. Mr Donaldson considered during the interview the claimant did not have more to say rather than he was not able to say more. Mr Donaldson explained that he made no reference to the claimant on his impediment, as he did not know whether such a reference would calm or stress the candidate. He made no adjustment as the same procedure was to be applied to all candidates, and he had not been made aware prior to commencing the assessment of any need for adjustment.

The claimant's line manager, Mr Agnew, knew the claimant had a speech impediment but the general staff in the respondent's human resources department did not. In 2004 when all employees were surveyed as to whether or not they had any disability, the claimant returned a negative response. The tribunal accepts the evidence of Deborah Sanderson, that had the claimant flagged up in the 2004 form or in the monitoring form submitted with his application that he had a disability, the respondent had in place a system to highlight that indication to those responsible for the overall recruitment exercise.

Mr Agnew was involved in settling the criteria to be used in the November 2006 recruitment exercise. He was not involved in settling the arrangements for the initial selection process. He had not flagged up to human resources the claimant's speech impediment. While Mr Agnew gave evidence that in past interviews with the claimant he had made ad hoc adjustments during the claimant's interviews – for example giving the claimant more time to get his answers across if the claimant needed it, it became clear to the tribunal as his evidence continued that in actual fact no such adjustment was made. Mr Agnew contradicted himself in evidence by stating that the interviews were normally half hour interviews and he did not believe or recollect that any of the claimant's interviews required extra time or had run over the allocated thirty minutes. Those interviews were not competence based interviews.

The claimant did not make any final submission to the tribunal other than to state that the provision criteria or practice in question, namely the oral element of the assessment – placed him at a disadvantage. He did not contend that he should not participate in the oral interview but that it should be organised to accommodate his impediment. The accommodation sought is that the interview not be under time constraints, there be more than one interviewer and that the claimant be permitted to write his answers. The claimant contended the respondent did know of his disability as he was employed with them for over 19 years. Once the interviewer had identified his disability adjustments should have been made such as reassuring the claimant to take his time. The claimant contended it would have made no difference had he completed the monitoring form as the company would not have made any adjustment, given that the process used in the assessment centre was the same as used for every railway service in Britain as "best practice".

In summary the respondent submitted that the burden rests on the claimant to show there is a provision, criteria or practice that placed him at a substantial disadvantage – and even if he discharges that burden, there will still be no duty on the employer if the employer did not have the requisite knowledge of the claimant's disability. In this case while Mr Agnew knew, those directly involved in setting up the assessment process and carrying it out had no such knowledge. On the question as to whether the employer could reasonably be expected to know, common sense would suggest that they can not be expected to know if the employee does not flag up the "impairment" or "disadvantage". It is true that Mr Donaldson knew the claimant had a speech impairment once the interview had commenced but the claimant had difficulty in identifying what adjustment could be made in those circumstances. His suggestion that credit be given for past experience is not realistic. The other proposed adjustment is that he be permitted to write his answers. Mr Donaldson's evidence is that the claimant failed to provide the requisite details of his experience in his answers, a lack of substance rather than a lack of eloquence. The respondent noted that in giving his evidence today the claimant did not give details of the other examples he alleged he could have provided at interview. The claimant today has not been "tongue tied"; he is not incapable of getting out what he wants to say. The respondent says either there was no need for "reasonable adjustment" or there was "no reasonable adjustment" that could be made.

Relevant Law

Section 3A defines discrimination:-

"3A. – Meaning of Discrimination –

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

(a) for a reason which relates to the disabled person's disability, he treats him 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 a 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) But treatment of a disabled person cannot be justified under sub-section (3) if it amounts to direct discrimination falling within sub-section (5).

(5) 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.

(6) If, in a case falling within subsection (1)(a) a person is under a duty to make adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty".

As can be seen, this consists of what can conveniently be divided into disability related discrimination (s3A(1)), discrimination by not making reasonable adjustments for a disabled person (s3A(2)), and direct discrimination (s3A(5)). Only the first type of disability discrimination is qualified by the justification defence. In this case, the arrangements made for the initial sift of candidates for the post of Signalman are all said to be discrimination by not making reasonable adjustments for a disabled person.

The reference in Section 3A(2) is to the separate right, explained in Section 4A, arising from an employer's duty to make what are now by statute called reasonable adjustments:-

"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 of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with 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 provision, criterion or practice, or feature, having that effect.

(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know –

(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; or

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1)."

In considering whether there has been a failure to comply with a duty to make reasonable adjustments, certain "steps" shall be considered: Examples of what steps it is reasonable to take are given in s18B(2):-

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 a duty to make reasonable adjustments, regard shall be had, in particular, to—

(a) the extent to which taking the 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 respect to taking the step;

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

(g) where the step would be taken in relation to a private household, the extent to which taking it would –

(i) disrupt that household, or

(ii) disturb any person residing there.

(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 a duty to make reasonable adjustments –

(a) making adjustments to premises;

(b) allocating some of the disabled person's duties to another person;

(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;

(f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;

(g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person);

(h) acquiring or modifying equipment;

(i) modifying instructions or reference manuals;

(j) modifying procedures for testing or assessment;

(k) providing a reader or interpreter;

(l) providing supervision or other support.

The term 'provision, criterion or practice' is defined in Section 18D to include any

arrangements.

In Northern Ireland, at least, Section 17A(1B) provides that where a claimant in an industrial tribunal complaint 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 position relating to the shifting burden of proof was analysed by the Great Britain Court of Appeal in the case of Igen v Wong [2005] EWCA 142 and guidance for tribunals was set out in a series of 13 numbered paragraphs in that decision. The Northern Ireland Court of Appeal in McDonagh & Others v Royal Hotel [2007] NICA 3, confirmed that that guidance can be applied to all forms of discrimination and stated:-

"For the purposes of the present case the first question that the judge should have articulated was, 'have the plaintiffs proved on the balance of probabilities facts from which I could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against them?."

Those guidelines were re-visited and affirmed by the GB Court of Appeal in the case of Madarassy v Nomura International PLC [2007] EWCA Civ 33 on 26 January 2007. At Paragraph 12 of that decision, the court stated:-

"I do not underestimate the significance of the burden of proof in discrimination cases. There is probably no other area of civil law in which the burden of proof plays a larger part than in discrimination cases. Arguments on the burden of proof surface in almost every case. The factual content of the cases does not simply involve testing the credibility of witnesses and contested issues of fact. Most cases turn on the accumulation of multiple findings of primary fact, on which the court or tribunal is invited to draw an inference of a discriminatory explanation of those facts. It is vital that, as far as possible, the law on the burden of proof applied by the fact-finding body is clear and certain. The guidance in Igen v Wong meets these criteria. It does not need to be amended to make it work better."

At Paragraph 52, the court stated:-

"Much of what Mr Allen said about the effect of reversing the burden of proof is correct. Mr Allen is obviously right in saying that the sub-section does not require Ms Madarassy to prove a conclusive case of unlawful discrimination. She only has to prove facts from which the tribunal could conclude that there had been unlawful discrimination by Nomura; in other words she has to set up a prima facie case."

At Paragraph 54, the court stated:-

"I am unable to agree with Mr Allen's contention that the burden of proof shifts to Nomura simply on Ms Madarassy establishing the facts of a difference in status and a difference in the treatment of her."

At Paragraph 56, the court stated:-

"The court in Igen v Wong expressly rejected the argument that it was sufficient for the claimant simply to prove facts from which the tribunal could conclude that the respondent 'could have' committed an unlawful act of discrimination. The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which the tribunal 'could conclude' that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination."

At Paragraph 57, the court continued:-

"'Could conclude' in Section 63A(2) must mean that 'a reasonable tribunal could properly conclude' from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination such as evidence of a difference in status, and difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent contesting the complaint."

At Paragraph 58, the court continued:-

"The absence of an adequate explanation for the differential treatment of the claimant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if the claimant proves a prima facie case. The consideration of a tribunal then moves onto the second stage. The burden is on the respondent to prove that he has not committed an act of unlawful discrimination. He may prove this by an adequate and non-discriminatory explanation of the treatment of the claimant. If he does not the tribunal must uphold the discrimination claim."

Again in relation to the shifting of the burden of proof, the Employment Appeal Tribunal (EAT) 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 Disability Rights Commission'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 with the question of whether it could reasonably be achieved or not".

Finally, on the shifting burden of proof, the Code of Practice issued by the Equality Commission provides at Paragraph 4.43 that:-

"To prove an allegation that there has been a failure to comply with a 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 this, the claim will succeed unless the employer can show that it did not fail to comply with its duty in this regard."

The EAT in the case of Environment Agency v Rowan [2008] IRLR 20 held that an employment tribunal considering a claim that an employer has discriminated against an employee pursuant to Section 3A(2) of the Act by failing to comply with the Section 4A duty must identify the provision, criterion or practice applied by or on behalf of the employer and the nature and extent of the substantial disadvantage suffered by the claimant.

In London Borough of Barnet v Ferguson UKEAT/0220/06/DA 18 September 2006 the EAT presided over by HHJ McMullen QC approved a passage of judgement of EAT in Smiths Detection Watford v Berriman UKEAT/0712/04 and UKEAT/0144/05. In that case there was set out a schematic approach to assist Employment Tribunals in determining cases where the failure of an employer to make reasonable adjustments is in issue. In Smiths Detection Watford they were concerned with the provisions of the Act prior to its amendment by the Disability Discrimination Act 1995 (Amendment) Regulations, which effected a number of amendments. In London Borough of Barnet v Ferguson HHJ McMullen QC held that the guidance applied equally to the Act as amended and was designed to "steer a Tribunal along the course along which it must walk if it is to make a finding that there has been a breach of the reasonable adjustments required of the DDA".

The EAT in Ferguson went on to restate that guidance to have regard to the amendments to the act:-

In our opinion an Employment Tribunal considering a claim that an employer has discriminated against an employee pursuant to Section 3A(2) of the Act by failing to comply with the 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 the substantial disadvantage suffered by the Claimant may involve a consideration of the cumulative effect of both the 'provision, criterion or practice applied by or on behalf of an employer' and the, 'physical feature of premises' so it would be necessary to look at the overall picture.

It was the opinion of the EAT in Ferguson that an Employment Tribunal cannot properly make findings of a failure to make reasonable adjustments under Sections 3A(2) and 4A(1) without going through that process:-

"Unless the Employment Tribunal has identified the four matters we have set out above it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage."

The Code of Practice issued by the Equality Commission at Paragraph 5.11 states that substantial disadvantages are those, which are not minor or trivial.

Conclusions

The first question for the tribunal to resolve is has the duty to make reasonable adjustments arisen, in effect has the claimant established an arrangement causing him a substantial disadvantage. The provision, criterion or practice, or arrangement, which placed the claimant at a disadvantage, was not solely the oral element to the selection process. Instead according to the claimant it was the arrangements made for the oral element – the use of a single interviewer, the time parameters set for the interview and the failure of the interviewer to acknowledge his speech impediment. The substantial (ie more than minor or trivial) disadvantage which that allegedly caused the claimant was the fact that as it would take him longer to answer questions orally than someone who did not have such a speech impediment, he restricted his answers to the questions to the most basic detail. The embarrassment and anxiety caused to him by the oral element restricted his ability to display the essential competences.

The claimant at hearing appeared to have difficulty in identifying the reasonable adjustment, which the claimant proposed should have been made. In essence it appeared to amount to either credit being given for past experience or that he be permitted to write his answers for that final part of the test, or the oral part of the test should not be time bound.

The tribunal noted that with seven competence areas to be covered in approximately a 30 minute time span, it allowed for approximately four minutes per competence area. The tribunal has seen and heard the claimant while in the pressurised situation of representing himself at hearing. The tribunal found the clarity of the claimant's evidence not impeded by his speech impediment most of the time. The tribunal are in no doubt while on most occasions he speaks with relative clarity, his impediment is noticeable and when present can affect the clarity of his answers. Accordingly the tribunal concluded that the cumulative effect of the disadvantage caused to the claimant by the pressure of an oral interview with the consequent embarrassment and anxiety was more than minor and trivial.

The duty to make reasonable adjustments arises only if the employer knew, or could not reasonably be expected to know, in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment. This was a difficult issue for the tribunal, as the claimant had never taken the opportunities provided to him by the respondent to flag up to them his disability. On the other hand he was a long-standing employee of the respondent company. The tribunal could find no case law on this issue in specific employment situations. In the wider civil law the tribunal noted the decision of Hartman v South Essex Mental Health and Community Care NHS Trust [2005] EWCA Civ 6. In that case when considering the liability of employers for mental health injury allegedly sustained as a result of the plaintiff's employment the court considered liability could only lie where the harm allegedly suffered was "reasonably foreseeable". This appeared to the tribunal a somewhat similar test as that applicable in the DDA.

There were sixteen propositions set out by the Court of Appeal but not all are relevant to this situation. However the third proposition reads:-

"Foreseeabilty depends on what the employer knows or ought to know about the individual employee. An employer is usually entitled to assume that the employee can withstand the normal pressures of the job unless he knows of some particular problem or vulnerability". The court also went on to state, "The employer is generally entitled to take what he is told by his employee at face value, unless he has good reason to think to the contrary. He does not generally have to make searching enquiries of the employee or seek permission to make further inquiries of his medical advisers".

Lord Walker, with whom the other members of the House agreed, referred to paragraph 29 of Hale LJ's judgment in Barber which led to her summary in the latter part of proposition (3) that an employer was usually entitled to assume the employee could withstand the normal pressures of the job unless he knew of some particular problem or vulnerability. Paragraph 29 is as follows:-

"But when considering what the reasonable employer should make of the information which is available to him, from whatever source, what assumptions is he entitled to make about his employee and to what extent is he bound to probe further into what he is told? Unless he knows of some particular problem or vulnerability, an employer is usually entitled to assume that his employee is up to the normal pressures of the job. It is only if there is something specific about the job or the employee or the combination of the two that he has to think harder. But thinking harder does not necessarily mean that he has to make searching or intrusive enquires. Generally he is entitled to take what he is told by or on behalf of the employee at face value. If he is concerned he may suggest that the employee consults his own doctor or an occupational health service. But he should not without a very good reason seek the employee's permission to obtain further information from his medical advisors. Otherwise he would risk unacceptable invasions of his employee's privacy."

42. Lord Walker said at paragraph 65:-

"This is, I think, useful practical guidance, but it must be read as that, and not as having anything like statutory force. Every case will depend on its own facts and the well known statement of Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, 1783 remains the best statement of general principle:"

"The overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light for what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent."

This respondent has a substantial number of employees throughout Northern Ireland. The post was not being advertised internally but was advertised publically so both internal and external candidates could be anticipated. The respondent would be rightly criticised if the same system or process for recruitment to that post were not utilised for all candidates. As the claimant's immediate line manager would be participating in the second part of the process, there can be no criticism of his exclusion from the initial selection sift. In posing the question to ourselves whether the claimant's particular problem or vulnerability is plain enough for any reasonable employer to realise they should do something about it in settling the arrangements for a selection process – we find ourselves compelled to answer that question in the negative. The claimant had attended three internal selection processes where formally no adjustment or disability had been recorded by the relevant department – Human Resources. Further there was a system operated by the respondent that permitted the claimant on more than one occasion to flag up his vulnerability. This practice – the use of monitoring forms – is a recognised and general practice, which has been followed for a substantial period in similar circumstances. It appears to this tribunal that there was no "good reason" for the respondent to question what he had been advised by the claimant on two occasions – that the claimant had no disability within the Disability Discrimination Act. Once the claimant was at interview it is clear from the evidence and the notes of Mr Donaldson that the claimant's speech impediment was notable. However the tribunal found credible Mr Donaldson's explanation for not commenting on it. He had no way of knowing whether the stammer was as a result of nerves or a "disability" – as no information had been provided to him with regard to that issue. Accordingly the tribunal concluded that the respondent could not reasonably be expected to know the claimant had a disability likely to put him at a substantial disadvantage in the assessment process for this signalman post. The tribunal concluded for that reason the duty to make reasonable adjustments did not arise in the circumstances of this case.

However in case we should be wrong in that conclusion the tribunal also went on to consider if the duty had arisen whether there was a basis on which it could properly be inferred that there had been a breach of that duty. The tribunal as recommended in Project Management Institute v Latif went on to consider what adjustments, if any, the respondent could have made in the circumstances of this case. There was no statutory questionnaire issued in this case for the tribunal to consider. The claimant proposed a number of adjustments that in the view of the tribunal "apparently" could be reasonable. Accordingly the tribunal concluded that the claimant discharged the onus placed upon him in the first part of the two-stage burden of proof set out in Section 17A and that the onus of proof therefore passes to the respondent.

The tribunal has carefully considered the respondent's argument that the arrangement for the initial sift of candidates for the Signal Person's post were arranged to comply with "best practice" in the Railway sector. It is clear that the post is a critical safety post and that ability to communicate clearly in an emergency was an important component of that particular post. While "modifying procedures for testing or assessment" is one of the examples provided in the statute as a potential "reasonable step to take", the reasonableness has to be viewed in the context of the "extent to which taking the step would prevent the effect in relation to which the duty is imposed and the extent to which it is practicable for him to take the step.

In evidence the claimant accepted there needed to be an oral element to the selection process so abandoning totally the oral element of the selection process does not appear to be practicable and therefore a "reasonable adjustment". This tribunal considered the other adjustments proposed. The tribunal considered first the proposal for the removal of any time parameters. The tribunal was not satisfied on the balance of probabilities that there was any definitive time barrier set by the respondent. There was an indicative time span provided at the outset of the interview but it is clear from the various prompts noted in the interviewer's notes that the claimant was given all the time he required to display the necessary competences. It appeared to the tribunal there was a certain lack of preparation by the claimant for a competence-based interview. It is notable at the outset of the interview the claimant advised Mr Donaldson that he had not read the booklet on "A day in the life of a Signaller" which had been forwarded in the candidate's pack with the invitation to the assessment centre. The tribunal accepted the evidence of Mr Donaldson that the lack of preparation had more of an adverse impact on the claimant than the indication of the approximate time span the interviewer considered the process would take to complete. Examples of the claimant's lack of preparation for interview is perhaps disclosed in responses such as "can't really think off hand to be honest" to a request to give an example of communicating with a number of different people; failing to provide an additional example of team working even when asked for another situation and when asked for specifics of example of dealing with difficult people - no example was provided even after two prompts.

The tribunal accepted as a fact that the claimant experienced difficulty with the lack of eye-to-eye contact given by the use of a sole interviewer. The use of a second interviewer once the claimant's impediment was recognised by the interviewer was hardly practicable in the circumstances where the respondent had no foreknowledge of the situation. It appeared to the tribunal, accepting the claimant's evidence on this point, an acknowledgement of the claimant's impediment might have been reassuring to the claimant. However the tribunal was also able to accept the fear expressed by the interviewer that any such comment might be misinterpreted. The essential issue however is what would be the extent of such "mention" in preventing the effect or impairment on the claimant's interview performance. Again the tribunal could not be satisfied on the balance of probabilities, having noted the responses provided to some of the prompts given by the interviewer that in the circumstances of this case taking that step would have the effect of enabling the claimant to provide examples in the competence areas he failed. It was not a step practicable to take with no foreknowledge of the claimant's situation. While there was no evidence placed before the tribunal as to the cost implications of using two interviewers, the tribunal is in no doubt that there would be a cost implication. The tribunal does not consider it necessary for such evidence to be placed before it in this case given the "practicality" of the adjustment sought in the circumstances of the timing presented in this case. It does not appear to the tribunal that a second interviewer could be found without causing delay to the assessment process. It was not practicable therefore for Mr Donaldson to find a second interviewer when he had no pre-knowledge of the claimant's difficulty.

The tribunal did not have sufficient evidence before it to reach a conclusion on the impact of postponing the interview once it had already commenced. That option appeared fraught with complications. It was the claimant's failure to bring his difficulty to the attention of those arranging this assessment process prior to attending the assessment centre and his lack of preparation, which essentially prevented him passing the assessment centre testing successfully.

The tribunal concludes the respondent has provided an adequate and non-discriminatory explanation for the treatment of the claimant. The respondent has discharged its burden of proof to prove they did not commit an act of unlawful discrimination. The tribunal therefore concludes that the claimant's claim is dismissed.

Chairman:

Date and place of hearing: 7 April 2008, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Shirlow v Translink [2008] NIIT 229_07IT (13 June 2008) URL: http://www.bailii.org/nie/cases/NIIT/2008/229_07IT.html Cite as: [2008] NIIT 229_07IT, [2008] NIIT 229_7IT