THE INDUSTRIAL TRIBUNALS

CASE REF:	208/09

CLAIMANT:			David Millar

RESPONDENT:		Zavvi Retail Ltd (in administration)

DECISION
The unanimous decision of the tribunal is that:-

(i)	the claimant’s claim that he was subjected to harassment on the ground of his age is dismissed; and

(ii)	the claimant was subjected to harassment on the ground of disability and we award him the sum of £5,400 by way of compensation.

Constitution of Tribunal:
Chairman:		Mr D Buchanan
Members:		Mr W Irwin
			Mr J Law

Appearances:
The claimant, Mr Millar, appeared in person.
The joint administrator of the respondent company had indicated that he would not be taking any part in the proceedings.  

1.	(i)	By a claim form presented to the Office of the Tribunals on 9 January 2009 the claimant, Mr Millar, brought claims of age discrimination and disability discrimination against the respondent company.  At the commencement of the hearing he indicated that both claims were based on allegations that he had been harassed by Mr John McNally, a manager of the respondent company’s store at Castle Court, Belfast, where the claimant worked.	
			
	(ii)	By a letter to the Office of the Tribunals dated 8 May 2009 the joint administrator of the respondent company stated that he was unable to comment on the case, or submit any response.  However, the joint administrator did confirm that he had no objection to the case proceeding.	
			
	(iii)	At a Case Management Discussion on 28 July 2009 and again before the tribunal, Mr Millar indicated that he had not suffered any financial loss by reason of the alleged discrimination, and that his claim was confined to compensation in respect of injury to feelings.	
			
	(iv)	We heard evidence from Mr Millar.  We found him to be an honest and credible witness.  Additionally we had regard to documentary evidence provided by him.

We find the facts set out in the following paragraphs.	
			
2.	(i)	The claimant commenced work with the respondent company in October 2005.  At that time it was called Virgin Megastore.  He worked part-time hours.  He did not do till work, but concentrated on work in relation to specialist music (eg jazz music, classical music, Irish music).  Initially he got on very well, both with customers and other staff and managers in the store.  At that time he also had another part-time job, taking up 20 hours or so per week, as caretaker of a church in Belfast.  	
			
	(ii)	In February 2007 he went off ill, and did not return to work until October of that year.  He had previously suffered from hypertension and blood pressure, which was largely controlled by medication, but in 2007 he became very seriously ill with multiple liver abscesses which unfortunately reached the stage of being life-threatening.  He never fully recovered from that illness, which exacerbated his pre-existing conditions and, significantly, he was unable to return to his job as a church caretaker because the work which it involved was so strenuous.	
			
	(iii)	We are satisfied from the evidence of Mr Millar and from the medical evidence which we have seen, that he is a disabled person within the meaning of Section 1 of the Disability Discrimination Act 1995 in that he has a physical impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.  In reaching this conclusion we have had regard to the Regulations made under the Act and to the guidance.	
			
	(iv)	When he returned to work in the store in October 2007, Mr Millar very fairly stated that everyone from the then managers to younger staff fully supported him and went out of their way to help him in the transition back to work.  Management and staff had also been supportive and concerned during his time in hospital.	
			
3.	(i)	Around February 2008 the managers at Castle Court went to a new store at the Victoria Centre.  Mr Millar had the opportunity to go, but chose to stay where he was.  A new manager, Mr John McNally, took over, and this appears to have marked the start of problems at work for Mr Millar.

His evidence was that Mr McNally directed ageist comments and comments relating to his disability towards him.	
			
	(ii)	We consider that on the evidence before us, Mr McNally was an insensitive manager, certainly insofar as his dealings with the claimant were concerned.  However, even taking Mr Millar’s evidence at its height, we see little evidence of him making remarks which could be construed as ageist.

The situation differs in relation to the claimant’s disability, of which Mr McNally was aware.  The cumulative effects of these remarks which included advising the claimant, who was on constant medication, to take a ‘chill pill’, singling Mr Millar out in the presence of another employee in a reference to his eyesight, and on a couple of occasions, referring to his breathlessness (the claimant has been easily fatigued since his operation) seem to us to be more than insensitive, and to raise an inference in the absence of an adequate explanation from which the tribunal could conclude that Mr Millar has suffered unwanted conduct for a reason which related to his disability and which had the effect of violating his dignity.  We think that it could reasonably be considered as having this effect, and in reaching this conclusion, we have considered all the circumstances of this case, including the claimant’s perception.

These incidents continued until approximately this time last year, when Mr Millar went off work with a stress-related illness.  He never returned to work as the company subsequently went into administration.	
			
	(iii)	We therefore consider that on the facts the burden of proof has shifted to the respondent, and in the absence of any explanation find that Mr Millar was harassed for a reason which related to his disability.	

4.	We now assess compensation for injury to feelings.  We are satisfied that the injury to the claimant’s feelings can be attributed to the unlawful acts of harassment.  We are further satisfied that this case is in the lower band, having crossed the line, as it were, from insensitivity.  As against this, it was cumulative and ongoing.  We therefore consider an award of £5,000 appropriate.  The tribunal considers it appropriate to award interest on the award from the date of the last incident of harassment to the date on which interest is calculated at the applicable rate of 8%, a period of approximately one year.  We calculate the interest at £400.  The total award is therefore £5,400.

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

Chairman:

Date and place of hearing:	5 October 2009, Belfast

Date decision recorded in register and issued to parties: