THE INDUSTRIAL TRIBUNALS

CASE REF:	1964/07

CLAIMANT:			Kevin Anthony Campbell	

RESPONDENTS:		1.	Mr Laurence Martin
				2.	Brett Martin Ltd	

DECISION
The unanimous decision of the tribunal is that the claimant’s claim of unlawful discrimination on the grounds of disability be dismissed.

Constitution of tribunal:
Chairman:		Mr P Kinney
Members:		Mr O’Hea
			Mr Hannah

Appearances:
The claimant appeared and represented himself.
The respondents were represented by Mr Bloch of the Engineering Employers Federation.

ISSUES

1.	The issues the tribunal had to determine were agreed at the outset of the case as follows.
(1)	Were the respondents under a duty to make reasonable adjustments in respect of the claimant’s request to alter his shift pattern?

(2)	If so, did the respondents fail in their duty to make reasonable adjustments in respect of the claimant’s shift pattern thereby subjecting him to unlawful discrimination on the grounds of his disability?
(3)	Did the respondents unlawfully discriminate against the claimant on grounds related to his disability when it counted two periods of absence as ordinary sick leave and gave the claimant a verbal warning?
(4)	Did the claimant provide a written grievance to the respondents in relation to his claim for disability related discrimination?
(5)	Are the claimant’s claims within the time limits allowed by the Disability Discrimination Act and if not should the time be extended on just and equitable grounds?

Evidence

2.	The tribunal heard from Mr Campbell and from Doctor Hall Campbell and also considered documents in the claimant’s bundle and the respondents’ bundle which were specifically referred to the tribunal.

Findings of fact

3.	The tribunal found the following findings of fact.

(1)	The claimant started employment with the second-named respondent in or around March 1998.  He initially worked as a production operative and subsequently was promoted to a technical operator.  He was off work for approximately six months from the summer of 2006 until almost Christmas 2006.  At the time, he was working on a rotation involving two weeks on night duty and two weeks on day duty.  This was the common rota employed by the respondents in the workplace. 
 
(2)	When he returned to work the claimant completed a night-worker’s health screening questionnaire on 27 January 2007.  The questionnaire asked if the claimant had any medical or health condition likely to affect his ability to do night work or if it could be made worse by night work and included a list of conditions.  The claimant ticked “yes” to heart or circulatory problems, medical conditions affecting sleep, and other health factors which may affect his fitness to do night work. 
 
(3)	As a consequence of his replies to the questionnaire, the respondents arranged for him to meet the company Doctor, Doctor Hall Campbell, to discuss the matter.

(4)	The claimant met Doctor Campbell on 24 May 2007 and Doctor Campbell prepared a report dated 31 May 2007 which was provided to the second-named respondents.  The claimant did not have sight of this medical report at the time.

(5)	In the report Doctor Campbell stated of the claimant
 
		“He is on ongoing medication and Kevin is of the opinion shift work makes it difficult for him to take his medication in a regular pattern resulting in disturbed sleep and aggravation of his depression.  It would be my opinion at this stage that it would not be essential to transfer Kevin but possibly advisable”.

(6)	Following his attendance with Doctor Campbell the claimant took no further steps in relation to his request to be transferred from the night shift.  On 27 June 2007 the respondents recorded a verbal warning against the claimant in respect of his poor attendance.  The claimant had had absences within the previous 12 months on 4 occasions.  Only one of those absences was recorded as relating to his depression and to his disability.  The other occasions were recorded as one period of flu and two periods of sickness.  The disciplinary process for absence is triggered by three absences within a 12 month period. 

(7)	The claimant accepted that a non-disabled person who was off for three periods of absence within a 12 month period would have been treated in the same way and would have received a verbal warning.

(8)	The claimant also pointed to a comparator, Mr Snoddy.  Mr Snoddy also saw Doctor Campbell on 16 January 2006.  He also had requested a transfer from shift work to day work.  In his letter of the same date to the first-named respondent’s Doctor Campbell records “I have no doubt Stephen would come under the DDA and I feel every effort should be made to transfer him to day work for a trial period”.

(9)	The respondents accepted that the claimant had a disability within the terms of the Disability Discrimination Act 1995.

(10)	The claimant submitted a letter of grievance dated 31 August 2007.  This dealt with his grievance that there was a failure to make reasonable adjustments by not transferring him from night work.  The claimant however accepted that he had made no written grievance in relation to any claim arising from the verbal warning for absence.

(11)	The tribunal also heard from Doctor Campbell.  He confirmed that he was very familiar with the claimant and had seen him 18 times over the course of his employment.  He confirmed the claimant was undoubtedly suffering from anxiety and stress which had been present for a considerable period of time.

(12)	Doctor Campbell had seen both the claimant and Mr Snoddy.  He told the tribunal that Mr Snoddy’s condition was quite different to that of the claimant.  A diagnosis of depression can be made which covers a wide spectrum of conditions.  Both men however were, in Doctor Campbell’s opinion, disabled for the purposes of the DDA.

(13)	Doctor Campbell said that when he saw the claimant he noted that the claimant whilst off work still had a disturbed sleep pattern and had studied the medication the claimant was on.  There was nothing in that medication to suggest that night work would interfere with the taking of the medication or that day work was essential.  Doctor Campbell said that transferring the claimant to day shift was “possibly advisable” in his report.  He informed the tribunal that he was frequently asked by workers to have them transferred from night work.  It was his practice if an individual was unhappy with working on night shift to put such a phrase in his report. 

(14)	Doctor Campbell consulted the Faculty of Occupational Medical guidance on conditions that may be exacerbated by night work.  He said that he saw no evidence of the factors to be taken into consideration in the claimant’s condition.  Doctor Campbell contrasted this with Mr Snoddy who would, in his opinion, meet some of the factors as set out.

Duty to make reasonable adjustments

4.	Under Section 3(A2) of the Disability Discrimination Act 1995 (DDA) an employer 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.

5.	Section 4 of the DDA sets out the duty:

“(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; 

(c)	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 is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements from having that effect”.

6.	The respondents conceded at hearing that the duty to consider making reasonable adjustments had arisen.  They contended however that the adjustment proposed by the claimant, namely removing him from night work was not likely to be effective, on the basis of the medical evidence presented by Doctor Campbell.

Disability related discrimination

7.	Disability related discrimination occurs when an employer’s treatment is for a reason which relates to the employee’s disability, the treatment is less favourable than the way in which the employer treats (or would treat) others to whom that reason does not (or would not) apply, and the employer cannot show that the treatment is justified.  The House of Lords in the case of London Borough of Lewisham v Malcolm [2008] IRLR 700 ruled that there is only disability related discrimination if a non-disabled person to whom the same reason for the treatment would apply would be accorded more favourable treatment.  Thus a disabled person dismissed for disability related absence is not discriminated against if a non-disabled person with the same amount of absence would also be dismissed.

Time Limits

8.	Under the terms of the Disability Discrimination Act 1995, a claim for disability discrimination must be made within three months of the act complained of.  In this case, the act complained of is the failure of the respondents in their duty to make reasonable adjustments.  The tribunal has concluded that the claim arose when the respondents considered the advice of Dr Campbell contained in his report of 31 May 2007.  The claimant then made a written grievance on 31 August 2007.  Under the provisions of Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 as they apply to this case, where a written grievance is made within the normal time limit, time for presenting a claim is extended by three months.  The claimant presented his claim on 9 November 2007, within that further three month period.  The tribunal concludes that the claimant’s claim in relation to reasonable adjustments is made within the statutory time limit. 

The grievance requirement

9.	Article 19 of the Employment (Northern Ireland) Order 2003 provides that a claimant cannot make a complaint to an Industrial Tribunal under a jurisdiction to which the Article applies if the claimant has not set out the grievance in writing and sent the statement or a copy of it to his employer.  Under Schedule 3 of the same order disability discrimination in the employment field is covered by Article 19.
  
10.	In this case the tribunal is satisfied that no written grievance was made in relation to the claimant’s claim of discrimination on grounds of disability in that the respondents issuing a verbal warning for his absence.  The tribunal has no jurisdiction to consider that claim and it is therefore dismissed.  In any event the tribunal, on the basis of the facts found, would have concluded that the claimant has failed to discharge the burden of proof.  In his evidence he accepted that a non-disabled person with similar absences would have been treated in exactly the same way.

11.	The respondents have accepted that they had a duty to consider making a reasonable adjustment.  The provision, criterion or practice in this case which has been identified by the claimant is that he should have been transferred from night duty.  The tribunal is not satisfied that Mr Snoddy is a comparator as he himself is disabled within the terms of the Act and the tribunal accepts Doctor Campbell’s evidence that there were significant differences in their medical conditions and in the recommendations that he made to the respondents.

12.	In determining whether the duty has been satisfied the tribunal should consider what steps are reasonable in all the circumstances of the case for the respondents to have to take in order to prevent the provision, criterion or practice from having the effect of placing the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled.

13.	In this case, the tribunal has accepted Doctor Campbell’s evidence that, in his professional medical opinion, there was no medical reason to transfer the claimant from night work and that any such transfer was not likely to remove any substantial disadvantage that the claimant may have incurred – in this case a disrupted sleep pattern and the ability to take his medication.  The tribunal is satisfied that the move from night work to day work would not have had a substantial benefit to the claimant in terms of alleviating the disadvantage he considered that he suffered.  The tribunal therefore concludes that the respondents have not discriminated against the claimant and his claim is dismissed.

14.	At the conclusion of the hearing, Mr Bloch on behalf of the second-named respondent sought costs confined to witness expenses.  These expenses were incurred by the respondents in the sum of £230.  The application for costs related to witnesses who were only concerned with the claimant’s claims for disability discrimination and unfair dismissal which were withdrawn on the first day of this hearing.  

15.	The claimant in response said that he withdrew those claims when he arrived after advice from the Labour Relations Agency on the basis that he did not want to waste anyone’s time.  He advised that he was on long-term incapacity benefit receiving approximately £93.00 per week, of that figure he assessed that after payment of rent, electricity, food and other essentials, that he had approximately £10 per week to live on.

16.	Mr Bloch makes his application on the basis that the claimant’s claims had no reasonable prospect of success and that the claimant behaved unreasonably in continuing with these claims to the date of hearing.

17.	In considering an application for costs the tribunal must first be satisfied as to the grounds for making such an order and then whether it is appropriate to exercise its discretion to award costs.  In deciding whether to exercise its discretion the tribunal is entitled to take into account the means of the paying party.  In this case the tribunal has determined that a costs order is not appropriate.  In reaching this conclusion, the tribunal did not consider that the claimant was behaving unreasonably.  He did not have the benefit of advice and was representing himself.  He was however able to obtain advice from the first day of hearing from the Labour Relations Agency and immediately withdrew those elements of the case relating to his dismissal.  The tribunal is conscious of the caution it should exercise in examining a case with the benefit of hindsight.

18.	In any event, even if the tribunal had considered that there were grounds for such an order, the tribunal would have declined to make an order for costs on the basis of the means of the claimant.

19.	The claimant’s claims of unlawful discrimination on the grounds of disability are dismissed.

Chairman:  

Date and place of hearing:  2 February 2009 and 20 April 2009, Belfast	

Date decision recorded in register and issued to parties: