THE INDUSTRIAL TRIBUNALS       

CASE REF:	115/12  

CLAIMANT:			Catherine Bradin

				1.	Child Maintenance and Enforcement Division
RESPONDENTS:		2.	Department for Social Development

DECISION
The unanimous decision of the tribunal is that the claimant’s claims are dismissed in their entirety.

Constitution of Tribunal:
Chairman:		Mr B Greene
Members:		Mr A Kerr
			Mr B Hanna

Appearances:
The claimant appeared in person.

The respondents were represented by Mr Aidan Sands, Barrister-at-Law, instructed by the Departmental Solicitors Office.

Sources of evidence

1.	The tribunal heard evidence from the claimant and for the respondent from Carol Curran, Phyllis Watson, Collette McNeill, Gar McAtamney, Susan Crothers and Brian McAleenan.  The tribunal also received six bundles of documents amounting to 582 pages, including an agreed chronology and closing submissions from both parties.

The claim and defence

2.	The claimant claimed disability discrimination, failure to make reasonable adjustments, harassment and victimisation by reason of her disability and breach of contract.  The respondents denied the claimant’s claims in their entirety.  

3.	The claimant withdrew her claim against the first respondent without objection from the respondents.  Accordingly the Child Maintenance and Enforcement Division are dismissed as a respondent and the claim continued against the Department for Social Development only.

The Issues

4.	Pursuant to a Case Management Discussion, held on 27 March 2012, the parties agreed the main legal and factual issues in dispute and these are set out below:-

Issues of Law

(1)	Do either of the claimant’s impairments namely;

		(a)	prolapsed disc causing lateral recess stenosis or,

(b)	anxiety/stress/depression

meet the statutory definition of disability as set out in the Disability Discrimination Act (as amended) (“the Act”)?

(2)	Did the imposition of a written warning on the claimant following her return to work constitute a breach of the respondent’s statutory duty to make reasonable adjustments contrary to Section 4A of the Act?

(3)	Who are the proper non-disabled comparators for the purpose of Section 4A(1)?

(4)	Did the comments of Gar McAtamney directly discriminate against the claimant on the ground of her disability (or disabilities) contrary to Section 3A(5) of the Act?

(5)	Did Gar McAtamney harass the claimant on the ground of her disability (or disabilities)?

(6)	Did Gar McAtamney harass the claimant for a reason related to her alleged disability contrary to Section 3B of the Act?

(7)	Do the conditions of the written warning (ie 2 years) constitute a breach of the respondent’s statutory duty to make reasonable adjustments contrary to the Act?

(8)	Do the alleged contraventions of the absence management procedures on behalf of the respondent constitute a breach/or breaches in accordance with the Act?

(9)	Does the failure of the respondent to uphold an appeal in view of the alleged contraventions in procedures constitute a breach in accordance with the Act?

Issues of Fact

(1)	Was the claimant’s absence related to either of her alleged disabilities?

(2)	What were the reasons why the claimant was treated as she was?

(3)	What was the nature and extent of the alleged disadvantage suffered by the claimant compared by comparison with the identified comparators?

(4)	What matters did the respondent take into account in making its decision to give a written warning?

(5)	What words did Gar McAtamney say?

(6)	What was meant by those words?

(7)	To whom did Gar McAtamney refer his comments and who had sight of them?

(8)	What investigation took place leading to Gar McAtamney’s comments?  (The respondent does not accept this matter as an issue of fact which the tribunal needs to determine and it does not form part of the case as pleaded).

(9)	Did the respondent follow their own internal guidance in dealing with the claimant’s impairments?

(10)	Has the respondent treated non-disabled comparators (those without a disability) more favourably?

(11)	Does the health impact of a formal written warning for 2 years differ to that of a non-disabled comparator?

(12)	Did the respondent contravene its own managing attendance procedure?

(13)	Did the respondent contravene its own managing attendance appeal procedure?

Findings of Fact

5.	(1)  	From 1996 to 1997 the claimant worked as an administrative assistant with the respondent on a casual basis.

(2)    	On 1 March 1999 the claimant rejoined the respondent in the Child Maintenance and Enforcement Division (CMED) as a permanent part-time administrative officer.

(3)   	With three young children the claimant took a career break from 6 June 2003 to 16 January 2009.

(4)   	From 2000 the claimant suffered from back problems and on 10 October 2008 she requested an adjustment under the Disability Discrimination Act (DDA) arising from a prolapsed disc problem.

(5)   	The claimant returned to work on 19 January 2009.  On 21 January 2009 she attended the Occupational Health Service (OHS) in relation to her back.  She also informed them of her susceptibility to low moods and poor concentration.  The OHS recommended adjustments to the claimant’s work station and work practice and the provision to her of a suitable chair by reason of her back condition.

(6)   	On 20 April 2010 the claimant applied to reduce her weekly hours at work to 32.2 to facilitate a work-life balance and this was put into effect from 1 May 2010.

(7)   	On 9 June 2010 the claimant attended with her GP.  He recorded that she had a history of depression which had been worsening over the previous four to six months.  He noted her complaints as anxiety, low libido, sleep upset and tearful.  He also noted that she wanted to continue in work.  He prescribed fluoxetine hydrochloride which, the tribunal was advised, is an                    anti-depressant.  He scheduled a review for four weeks later.

(8)   	The claimant visited her GP again on 22 July 2010.  Dr Johnston recorded that her mood was improving with the fluoxetine hydrochloride.  At her request he continued to prescribe the medication and decided to review her after four months.  

(9)  	From 29 November 2010 to 3 December 2010 (five working days) the claimant was off work with pleurisy.

(10) 	In January 2011 Colette McNeill, the claimant’s staff officer, decided to make some changes to the claimant’s work programme.  The claimant wrote to her, by email, on 27 January 2011, confirming the changes to her work programme.  She stated in the email that while she was happy to follow Colette McNeill’s instructions she had concerns that the changes would pose a risk to her productivity and development and that they would have a negative impact on both her current and future performance.

(11)  	Within 15 minutes of the claimant’s email to Colette McNeill the latter’s close friend, Alison Ireland, who had access to her emails, had made a verbal complaint about the claimant to Carol Curran, an EO1 in the CMED.

(12) 	A difficult work situation ensued in which the claimant felt she was not supported by Colette McNeill.  The claimant dreaded coming into work which made her feel vulnerable and increasingly anxious.

(13) 	On 1 February 2011 the claimant sent an email to Gar McAtamney, the deputy principal, seeking a meeting to discuss the work changes and working relationships.  He replied referring the claimant to her line manager, Phyllis Watson, in the first instance to give her the opportunity to address the claimant’s concerns and if resolution did not result to discuss it thereafter with Colette McNeill.  The claimant regarded Gar McAtamney’s reply as dismissive and unsupportive and it led her to feel even more stressed and isolated. 

(14)  	The claimant attended with her doctor on 2 March 2011.  He noted that the depression symptoms were much better and that she was very stressed at work.  A further prescription of fluoxetine hydrochloride was given and a review was scheduled for six months later.

(15) 	The claimant went off work on 17 June 2011 by reason of stress and continued off work until 19 August 2011, a total of 44 working days.

(16) 	Following a reference by Phyllis Watson, on 20 June 2011, the claimant saw the Stress Enquiry Team (SET) on 22 June 2011.  At the meeting with SET the claimant informed them that she was suffering from work related stress because of an ongoing issue with another member of staff who had taken things further by lodging a grievance against the claimant. 

(17)  	On 27 June 2011 the claimant again saw her GP.  He recorded a stress related problem at work arising from a complaint made against the claimant by a colleague.  He further recorded that the claimant was “not feeling depressed at the moment just feeling stressed and anxious”.  He scheduled a review for four to six weeks later.

(18)  	A report was prepared by SET on 28 June 2011, following an interview with the claimant.  It was sent to Gar McAtamney who, on 8 July 2011, raised a number of questions arising from the report, offered the claimant a ‘no blame move’ to another section under another staff officer and added, inter alia, the following comments:-

“When Cathy went off, all her work was up to date; she had yellow sticky notes on files.  I’m confused these are not the signs of stress.  She took 2 days leave then phoned in sick.”

(19)	The claimant declined the offer of a move from Gar McAtamney as she thought a move would further exacerbate the stress.  She also felt that Gar McAtamney just wanted to get rid of the problem and that he continued to be indifferent to her condition thus making her feel uneasy, isolated and unsupported.  The claimant regarded Gar McAtamney’s comments, set out at 5(18) above, as harassment.

(20)  	Gar McAtamney sent an email to Trevor Patterson, in the respondent’s HR department, on 8 July 2011.  In the email he set out the comments at paragraph 5(18) above and added:-

“In this instance cathy is off work sighting work related stress, I have investigated and on the evidence it is not work related stress it is a reaction to a colleague taking a grievance against her.  Can you advise of the MA position in this case; I take it this is not an excluded absence for MA triggers purposes.”  

Trevor Patterson confirmed that the claimant’s absence was not excluded from the respondent’s MA (management of absence) policy. 

Gar McAtamney repeated this comment on 22 July 2011 to Martin Keenan from the respondent’s HR department.  However he denies trying to influence the managing of the Inefficiency Sickness Absence process. 

(21) 	The respondent referred the claimant to the OHS on 27 July 2011, by reason of her absence on stress.  She was seen on 3 August 2011 by Geraldine McCusker who recorded the history of the claimant’s stress problem.  It was noted that she was temporarily unfit for work and that there was evidence of an underlying medical condition which adversely impacted on her performance or attendance.  The report further recorded that the claimant’s condition was unlikely to recur in the future.    

(22)	On 3 August 2011 the claimant also had a home visit from Carol Curran, on behalf of the respondent, in connection with her absence from work from 17 June 2011.  During the home visit the claimant informed Carol Curran that she was on anti-depressants for approximately two months.  This was the first time anything to do with depression was mentioned to the respondent.  She also stated that it was not work that had caused her to be off but the tension in the team and the grievance that had been taken against her.  Carol Curran met with the claimant again on 16 August 2011 to arrange her return to work.  Other issues were discussed.

(23) 	The claimant returned to work on 22 August 2011 on a phased basis.  On 26 August 2011 the claimant had a return to work interview with Carol Curran at which she was advised that she had triggered the review points by being off work in excess of 10 working days and that she would be referred to an inefficiency meeting.  At the meeting the problem was identified as, “Cathy has had a grievance taken out against her and this is causing ongoing stress”.  The record also noted, “… Cathy advised that the work related stress will probably continue until the grievance has been resolved …”.

(24) 	The respondent has an Inefficiency Sickness Absence policy which applies to short-term sickness absence and long-term sickness absence.  The policy defines long-term sickness absence as being 20 consecutive working days or more and short-term sickness absence as being four occasions or 10 days in a rolling 12 month period.  

(25) 	Once an employee has had sickness absence on four occasions or 10 days in a rolling 12 month period a review of the employee’s absence will be done and management will assess what action, if any, is to be taken (4.3).  In deciding what action, if any, is to be taken the respondent will have regard to a number of factors including (though according to the policy this list is not exhaustive):-

(a)	the nature of the illness or injury;

(b)	the circumstances falling within relevant legislation, including disability legislation;

(c)	the frequency/pattern of absences;

(d)	prior sickness absence record; 

(e)	relevant information contained in return to work records; and

(f)	any relevant circumstances highlighted by the employee or the employee’s line management. 

(26)	One of the options open to the respondent is to consider whether formal inefficiency action is appropriate (4.3).   If inefficiency action is taken an employee will be given a written warning valid for two years (5.2).  The policy does not permit the duration of the written warning to be varied.  The employee has the right of appeal against the written warning (5.5).  A failure to have a sustained improvement in attendance during the ensuing two years can lead to a final written warning and ultimately dismissal (5.3) 

Under 7.01 (Referrals and Intervention) of the respondent’s policy is set out the referral process for, inter alia, a disability assessment.  So far as relevant to this claim the procedure states:-

	“Step 1 Contact Line Management 

	Where you identify a need to discuss a health related issue with Line Management or request a Disability assessment, or you feel that a reasonable adjustment can be implemented, you should contact Line Management by email, telephone or meeting, or request a reasonable adjustment via employee self service.

	Where appropriate, Line Management may ask you to complete a Disability Assessment application form and may decide to refer your case for approval to DHR and then to the Occupational Health Service or other occupational health service provider or to initiate an assessment.”

(27) 	On 31 August 2011 Phyllis Watson required the claimant to attend an inefficiency meeting on 5 September 2011 so that she could put forward any information or facts that she wanted to be taken into account.  Phyllis Watson conducted the inefficiency meeting with the claimant.  At the meeting the claimant was able to present such information as she considered relevant.  During the meeting the claimant stated:-

“I have a previous history of depression and therefore I am vulnerable to excessively stressful situations.  I am currently taking medication and until there is resolution to the grievance there is likely to be ongoing stress at work which may result in a further deterioration in my health and may affect my ability to do my normal duties.  Therefore the DDA may be appropriate in considering my circumstances.”

She also said:-

“I feel that I have presented mitigating circumstances.  I took sick leave as a last resort and I actively kept this leave to a minimum.  I believe that given the medical history, ongoing grievance and the work situation which led to my absence a written warning would be inappropriate and would amount to harassment and or discrimination.  It may also exacerbate my condition and result in deterioration in my health.”

(28)	Following the meeting Phyllis Watson and the claimant agreed and signed a minute of the inefficiency meeting on 12 September 2011.  The agreed record had attached a copy of the claimant’s submission delivered at the inefficiency meeting.

(29)	The minute of the meeting was sent to the respondent’s HR department on 12 September 2011.

(30) 	Colette McNeill and Gar McAtamney were unhappy with the agreed minute of the inefficiency meeting as it appeared that the respondent had not done anything as the minute did not record anything from the respondent’s point of view.  They believed the agreed minute was all one-sided and did not have balance.  

(31)  	Following Colette McNeill’s instruction to her, Phyllis Watson requested, on 15 September 2011, that the claimant re-do the inefficiency interview but the claimant refused.

(32)  Phyllis Watson met with Gar McAtamney and Colette McNeill and Gar McAtamney ask her to add management’s response to the claimant’s submission to the minute of the inefficiency meeting.  Phyllis Watson prepared comments the same day and sent them to Gar McAtamney.  The comments of Phyllis Watson were a written response to each of the claimant’s comments.  The amendments were not shown to the claimant, nor was her agreement sought to them nor was she given an opportunity to respond to them which is in breach of the respondent’s policy (4.10).

(33)  	On 19 September 2011 Gar McAtamney sent Phyllis Watson’s additions to the agreed minute of the inefficiency meeting and his comments on the stress enquiry plan, including the comments set out above at paragraph 18, to Trevor Patterson at the respondent’s HR department and asked him to pass them on to Sue Crothers, the decision-maker in the inefficiency process.  

(34) 	Sue Crothers, on 28 September 2011, considered the agreed minute of the inefficiency meeting, the additions provided by Phyllis Watson, the SET plan with management’s response to it, the claimant’s attendance record, the content of the home and review meetings with the claimant, the OHS report and the length and duration of the claimant’s absences.  In coming to her decision Sue Crothers accepted the genuineness and validity of the claimant’s absences.  She also had regard to the sustainability of the claimant’s level of attendance at work.  She decided to administer a written warning to the claimant.  

(35)	By letter of 29 September 2011 Sue Crothers imposed a written warning on the claimant.  Under the written warning the claimant was required “to demonstrate an immediate and sustained improvement” in her attendance during the ensuing two years.  Failure to do so could lead to further inefficiency action and ultimately dismissal.  She was advised of her right of appeal.

(36)	The claimant appealed on 3 October 2011 and her appeal was heard by Brian McAleenan on 5 December 2011.  Under the appeal procedure he can follow one of two courses of action, either to confirm the original decision or set it aside.

(37)	The claimant attended with her GP on 8 November 2011.  The GP records state, “Stress related problem.  Under a lot of stress at work though had counselling which has helped a bit keen to c/w ssri for now.”  She was given fluoxetine hydrochloride capsules, with review in six months or sooner, at the claimant’s request.

(38)	The grounds of the claimant’s appeal were that:- 

(a)	the inefficiency meeting was conducted under the incorrect paragraph of 6.06 of the respondent’s policy, 

(b)	appropriate consideration was not given to the Disability Discrimination Act, 

(c)	consideration was not given to making reasonable adjustments under the Disability Discrimination Act such as not awarding a written warning,

(d)	Gar McAtamney did not believe that she suffered from work related stress and shared that view with, among others, Sue Crothers the 
decision-maker,

(e)	at the inefficiency meeting Phyllis Watson’s additions to the agreed minute - of which the claimant was ignorant, to which she had not agreed, nor to which was she given the opportunity to comment - were given to the decision-maker,

(f)	she was being discriminated against by reason of her grievance and disability,

	(g)	she had a history of post natal depression and depression.

(39)	Brian McAleenan, having reviewed the evidence and considered the claimant’s representatives, rejected the claimant’s appeal and affirmed the decision to award her a written warning as being a fair and reasonable decision.  

(40)	He told the tribunal that he did not see the previous adjustments and recommendations made for the benefit of the claimant in relation to her back.  

(41)	The claimant’s sickness absence history, he informed the tribunal, did not show any other absences attributed to depression and the OHS report of 3 August 2011 stated that the claimant’s condition was unlikely to recur in the future. 

(42)	In relation to the claimant’s comments at the inefficiency meeting, set out at paragraph 5(27) above, he did not consider them as a request for a DDA assessment.  Nor did he believe that the statement, once made by the claimant, should have been followed up as part of the inefficiency process.  

(43)	Brian McAleenan rejected any suggestion that Gar McAtamney had interfered in the process.

(44)	In his decision of 20 December 2011 Brian McAleenan set out his reasons.  It was received by the claimant on 23 December 2011.  Among his findings were that:-

(a)	the respondent had considered all the information under paragraph 4.3 of chapter 6.06 of its policy,

(b)	the minute of the inefficiency meeting of 5 September 2011 had been agreed in accordance with the procedures in chapter 6.06,

(c)	he rejected the claimant’s contention that due consideration was not given to the Disability Discrimination Act concerning reasonable adjustments as he was satisfied that the absences which breached triggers did not relate to her back condition,

(d)	he could not find any evidence that any reasonable adjustments for the claimant’s back condition would have been a consideration for the respondent at the time of considering these absences. 

(45)	The claimant considered the appeal decision flawed but it was the last appeal open to her.  She also asserted that Brian McAleenan, a grade EO1 officer, was influenced by the comments of Gar McAtamney who, as deputy principal, was senior to him.  

(46)	The claimant lodged proceedings with the industrial tribunal on 5 January 2012.

(47)	The respondent regarded the claimant as a very capable and competent officer who was very good at her work.

(48)	The claimant contends that it was with great effort that she was able to do her work despite the stress and depression from which she suffered but that when she went home the effects of the depression greatly compromised her ability to carry out the ordinary tasks of home-life associated with a young family.

(49)	The claimant had workplace adjustments in place from 2009 due to her back condition.  

(50)	Her work absence history from 2001 does not show any absences attributed to depression until her absence from 17 June 2011.  The OHS report of 3 August 2011 recorded that the claimant’s then absence from work was due to stress which had led to having feelings of anxiety, tension and emotional distress.  The report also noted that her medical condition was unlikely to recur. 

The Law

6.	(1)	A person discriminates against a disabled person if, for a reason which relates to the disabled person’s disability, he treats that person less favourably than he treats or would treat others to whom that reason does not or would not apply, and he cannot show that the treatment in question is justified.  (Section 3A(1) Disability Discrimination Act 1995 as (amended).)

	(2)	A person has a disability for the purposes of the Disability Discrimination Act if he has a physical or mental impairment which has a substantial and long term adverse effect on his ability to carry out normal day-to-day activities.  (Section 1(1) Disability Discrimination Act 1995 (as amended).)

	(3)	Certain provisions of Part 1 and 2 of the Disability Discrimination Act apply in relation to a person who has had a disability as they apply in relation to a person who has that disability.  (Section 2(1) Disability Discrimination Act 1995 (as amended).)

	(4)	‘Mental Impairment’ includes an impairment resulting from or consisting of a mental illness.  (Schedule 1, 1(1) the Disability Discrimination Act 1995 (as amended).)

	(5)	Where an impairment ceased to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.  (Schedule 1, 2(2) Disability Discrimination Act 1995 (as amended).)

	(6)	A person 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.  (Section 3A(2) Disability Discrimination Act 1995 (as amended).)

	(7)	Where a provision, criterion or practice applied by an employer places the disabled person 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 the provision, criterion or practice having that effect.  (Section 4(A)(1) Disability Discrimination Act 1995 (as amended).)

	(8)	A duty to make reasonable adjustments is not imposed on an employer if he does not know or could not be reasonably expected to know that the employee has a disability and is likely to be placed at a substantial disadvantage in comparison to persons who are not disabled.  (Section 6(6) Disability Discrimination Act 1995 (as amended).)

	(9)	To determine whether it is reasonable to have to take a particular step to comply with the duty to make reasonable adjustments regard will be had to the following matters:-

			(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 steps;

			(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.

			(Section 18B(1) Disability Discrimination Act 1995 (as amended)).

	(10)	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 (Section 3A(5) Disability Discrimination Act 1995 (as amended)).

	(11)	In a claim for disability discrimination for a reason which relates to the disabled person’s disability the claimant would have to choose as a comparator somebody who is in the same circumstances as the claimant but for the disability (Lewisham London Borough Council v Malcolm and Equality and Human Rights Commission (intervener) [2008] IRLR 700 HL).

	(12)	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 violating the disabled person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him.  (Section 3B(1) Disability Discrimination Act (as amended).)

	(13)	Conduct shall be regarded as having the effect referred to in paragraph 6(12) above 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.  (Section 3B(2) Disability Discrimination Act 1995 (as amended).)

	(14)	It is unlawful for an employer, in relation to employment by him, to subject to harassment a disabled person whom he employs.  (Section 4 Disability Discrimination Act 1995 (as amended).)

	(15)	A person “A” discriminates against another person “B” if he treats B less favourably than he treats or would treat other persons whose circumstances are the same as B’s and he does so for any of the following reasons:

			(a)	because B has brought proceedings against A or any other person under the Disability Discrimination Act; or

			(b)	has given evidence or information in connection with such proceedings brought by any person; or

			(c)	has otherwise done anything under or by reference to the Disability Discrimination Act in relation to A or any other person; or

			(d)	has alleged that A or any other person has (whether or not the allegation so states) contravened this Act; or

			(e)	A believes or suspects that B has done or intends to do any of those things.  (Section 55 Disability Discrimination Act 1995 (as amended).)

	(16)	Proceedings before an Industrial Tribunal for a breach of contract claim can only be brought once the contract of employment has ended.  (Article 2 Industrial Tribunals Extension of Jurisdiction Order (Northern Ireland) 1994.)

7.	Application of the Findings of Fact and the Law to the Issues

	(1)	The claimant’s absence from work in 2011 had nothing to do with her back condition.  Her absence from 17 June 2011 to 19 August 2011 was due to stress.  In so concluding the tribunal had regard to:-

			(a)	what is recorded in the return to work interview of 19 August 2011, 

			(b)	the stress enquiry report done by Phyllis Watson and dated 20 June 2011, 

	(c)	the records of the claimant’s medical difficulties contained in the GP records particularly those of 27 June 2011 and 8 November 2011, 

			(d)	the contents of the home visit of 3 August 2011, 

		(e)	and the OHS report of 3 August 2011.

	(2)	The reason for the treatment of the claimant by the respondent was because of the claimant’s sick absence from work.

	(3)	The claimant complained about the inefficiency process in particular that she believed Gar McAtamney had tried to influence its outcome to her disadvantage and that in awarding a written warning to her that the respondent had failed to have any regard for her having a disability by reason of depression.  

	(4)	The claimant was unable to identify any comparators who were in similar circumstances to the claimant and in comparison to whom she had been treated less favourably.  There was evidence to suggest that some persons who had had sickness absences received written warnings and some other persons did not.  There was not any evidence before the tribunal which enabled it to form a view that the difference in treatment of the comparators or with anyone of the comparators and the claimant was by reason of her disability through depression.

	(5)	It coming to its decision to award a written warning to the claimant the respondent had regard to the factors set out at 4.3 of its sickness absence management policy, ie:-

			(a)	the nature of the illness or injury;

			(b)	circumstances falling within relevant legislation including disability legislation;

			(c)	frequency/pattern of absences; 

			(d)	prior sickness absence records;

			(e)	relevant information containing return to work records; 

			(f)	any relevant circumstances highlighted by the employee or the employee’s line management; and the employee’s ability to sustain employment with the respondent; and the representations made by the claimant at the inefficiency meeting and the appeal meeting.  

	(6)	There is no dispute as to what Gar McAtamney said and which the claimant criticises.  His comments are set out at paragraphs 5(18) and 5(20) of the Findings of Fact above.  

	(7)	In the tribunal’s view those words were meant to question whether the claimant was suffering from stress or work-related stress.

	(8)	Gar McAtamney’s comments, set out at paragraphs 5(18) and 5(20) above were sent to the respondent’s human relations department.  They were also sent to the decision-maker of the inefficiency meeting, Susan Crothers, and the decision-maker at the appeal hearing, Brian McAleenan.

	(9)	In relation to the claimant’s disability by reason of her back condition the respondent, in the past, followed its procedures and had introduced reasonable adjustments to assist the claimant.

	(10)	In relation to the claimant’s allegation that she suffered from a disability by reason of depression the claimant has to show to the respondent that she suffers from a disability.  The process for doing that is set out at paragraph 7.01 (Referrals and Interventions) of its Inefficiency Sickness Absence policy.  

	(11)	In the present case the claimant did not activate any of the possible options in order to begin the process whereby any depression from which she suffered would be recognised by the respondent as a disability for the purpose of Disability Discrimination Act.  The policy requires a request by the employee to discuss a health issue or to seek a disability assessment or to seek a reasonable adjustment.  The claimant did not take any of those steps.  She merely mentioned, at the inefficiency meeting, that the Disability Discrimination Act may be appropriate.  The tribunal is fortified in its view because the claimant is experienced at having a disability recognised by the respondent and had done so successfully in the past in relation to her back.  She must therefore have been aware of how to make a request and that merely raising an issue does not satisfy the requirements of the policy.

	(12)	The tribunal is of the view that it was a defect in the inefficiency process that additions were made to the agreed minute of the meeting between the claimant and Phyllis Watson because the claimant was ignorant of those amendments and was not given an opportunity to comment on them or to agree them.  However the tribunal does not consider that this defect in the process invalidated the process as a whole, particularly as there has been no suggestion that the additions did not represent what had been discussed at the inefficiency meeting or that the claimant had an issue with any of the additions or that they influenced the outcome of the inefficiency process.

	(13)	The comments made by Gar McAtamney, set out at paragraphs 5(18) and 5(20) above were sent to the respondent’s HR department.  They referred to matters, considered, by the claimant’s line management as, relevant to the consideration of what action, if any, should be taken by the respondent in relation to the claimant.  

	(14)	Paragraph (4.3) of the respondent’s Inefficiency Sickness Absence policy permits line management to make those comments and HR to consider them.

	(15)	While Sue Crothers was not specifically asked if she had seen Gar McAtamney’s comments, set out at paragraph 5(20) above, it seems to the tribunal likely that she saw these comments.  They were comments line management was entitled to make and were a factor taken into account in deciding to initiate inefficiency action against the claimant.  The comments at paragraph 5(18) above were with the SET plan, as management’s comments thereon, which Sue Crothers specifically mentions as having been seen by her.

	(16)	Gar McAtamney’s comments were initially forwarded to HR before a decision to take inefficiency action against the claimant had been made.  It is hard to imagine that they did not have as an objective an attempt to influence the managing of the Inefficiency Sickness Absence policy.  But the policy permits such a submission.

	(17)	On 19 September Gar McAtamney asked the HR department to pass on to the decision-maker Phyllis Watson’s additions to the agreed minute of the meeting between the claimant and Phyllis Watson on 5 September 2011 including the comments at paragraph 5(18) above.  The tribunal can see no purpose in sending them other than to influence the decision-maker, Sue Crothers.

	(18)	Once the decision to consider inefficiency action is taken by the HR department the policy does not allow for further representations by management except to obtain an OHS Report.  Therefore Gar McAtamney’s intervention on 19 September 2011 is outside the respondent’s own procedure and is inappropriate.  However in the circumstances of this claim the comments are unlikely to have had a significant, if any, effect as the information Gar McAtamney sought to introduce was already part of the record and was considered by Sue Crothers.

	(19)	There was no evidence before the tribunal that non-disabled comparators were treated more favourably than the claimant or would have been in relation to sickness absence.

	(20)	There was no evidence before the tribunal that the impact of a formal written warning, for two years, on the health of the claimant differed or was greater than the impact it would have had on a non-disabled comparator. 

	(21)	The tribunal is satisfied that the respondent did not contravene its own Inefficiency Sickness Absence policy at the appeal stage.  The claimant was given the opportunity to make oral representations.  The appeal was heard by an officer, independent of the officer who made the decision, who reviewed the evidence relied on to reach the decision to administer a written warning.  He had been provided with all the documentation and policies and procedures.  The tribunal is satisfied that in relation to the claimant’s prolapsed disc she was a disabled person for the purposes of the Disability Discrimination Act.  The evidence before Mr McAleenan did not suggest the claimant had a disability by reason of depression and he was therefore entitled to ignore the claimant’s comment that the Disability Discrimination Act could apply.  

	(22)	The tribunal is not satisfied that the anxiety, stress or depression from which the claimant suffered meets the definition of disability for the purposes of the Disability Discrimination Act.

	(23)	The tribunal is satisfied that stress and depression are capable of being mental impairments.  It is not satisfied that the claimant had suffered stress which has lasted for or is likely to last for 12 months and therefore it does not satisfy the requirement of being long term.  The claimant has suffered from depression on several occasions over the years and therefore it satisfied the requirement of being long term.  

	(24)	The claimant said that the stress, anxiety and depression from which she suffered led to a lack of concentration, irritability, exhaustion and sleep disturbance.  The tribunal is not persuaded that they had a substantial effect on her ability to carry out her day-to-day activities.  The claimant did not demonstrate the substantial effects on any of her day-to-day activities.  In the absence of medical evidence the tribunal was unclear how the claimant’s concentration could be apparently excellent and focused at work whereas at home it seemed to disappear.  There was also an absence of specific details of how irritability and exhaustion affected her day-to-day activities substantially.  

	(25)	Although Dr Glasgow stated that in his view the claimant’s mental health complaint, signs and symptoms would indicate a substantial and long term effect on her ability to undertake normal day-to-day activities dating from March 2011, it is not clear, from his report, the basis for that conclusion apart from what the claimant told him.  Again there was an absence of details of how the day-to-day activities were substantially affected.    

	(26)	Accordingly the claimant’s anxiety, stress and depression do not satisfy the requirements of a disability for the purposes of the Disability Discrimination Act and therefore the respondent is not under a duty to make reasonable adjustments.  

	(27)	Even if the tribunal is wrong in that conclusion and the claimant is a disabled person under the Disability Discrimination Act the tribunal is satisfied that the respondent was unaware and did not have any information in its possession to enable it to conclude that the claimant suffered from a disability by reason of depression.  She did not tell the respondent she was suffering from depression nor request a disability assessment in relation to depression or stress, nor did her sickness absences from 2001 to 17 June 2011 relate to depression or stress.  Therefore, in the absence of knowledge of the disability, the respondent is not under a duty to make reasonable adjustments.

	(28)	Even in the respondent did know or was deemed to have known it appears to the tribunal, given that one of the purposes of the Inefficiency Sickness Absence policy is to ensure sustainability of employment, that the imposition of a written warning is not in itself a failure to make a reasonable adjustment as having a disability is one of a number of factors to be borne in mind and is not a factor which renders the imposition of a written warning not appropriate according to the respondent’s policy and procedures.  More importantly however there was no evidence before the respondent or the tribunal, to suggest that the claimant would be placed at a substantial disadvantage in comparison to persons who are not disabled by the awarding of a written warning. 

	(29)	The claimant did not rely on any specific named comparators but instead relied on the hypothetical comparator for her claim of disability discrimination.  The tribunal is satisfied that the comments made by Gar McAtamney did not amount to direct disability discrimination as the ground for making such comments was by reason of the claimant’s absence and in furtherance of the respondent’s desire to improve the attendance of the employees at work.  There was no evidence before the tribunal that the comments made by Gar McAtamney would not have been said about a non-disabled comparator in the same circumstances as the claimant and, therefore, that the respondent had treated the claimant less favourably than a hypothetical comparator.  As Gar McAtamney did not know that the claimant suffered from a disability by reason of depression that cannot have been a factor in making his comments.

	(30)	The tribunal is satisfied that Gar McAtamney did not harass the claimant by making those comments.  They are comments that it is possible to legitimately make based on the facts before him and do not fall within the definition of harassment.  But even if those comments could amount to harassment the tribunal is satisfied that they were made because she was absent from work.  

	(31)	As Gar McAtamney and the respondent were not aware or could not reasonably be aware that the claimant had a disability, by reason of depression, then the comments could not be made for a reason which relates to the disabled person’s disability and therefore it cannot be said that Gar McAtamney harassed the claimant for a reason related to her alleged disability.

	(32)	As the claimant does not have a disability then the respondent is not under a duty to make a reasonable adjustment.  Therefore the issue as to whether the imposition of the written warning or its duration constitute a breach of the respondent’s statutory duty to make reasonable adjustments does not arise.

	(33)	Nor do any of the deficiencies identified by the tribunal in relation to the application of the Inefficiency Sickness Absence policy amount to breaches of the Disability Discrimination Act for the reasons set out above.  

	(34)	In the light of what has been said above nor does the failure of the respondent to uphold the claimant’s appeal constitute a breach of the Disability Discrimination Act.  

Chairman:

Date and place of hearing:	14 - 15 June 2012;
18 - 20 June 2011; and
4 July 2012, Belfast

Date decision recorded in register and issued to parties: