THE INDUSTRIAL TRIBUNALS

CASE REF:  1910/13  

CLAIMANT:			Kieran Nolan

RESPONDENT:		Quinn Glass Ltd

Certificate of Correction

The decision issued in this matter was incorrectly dated 2 September 2014. The correct date of issue is 4 September 2014

Employment Judge:_____________________________________________ 		

Date:____________________________

This decision was registered and issued to the parties on:

____________________________
for Secretary

THE INDUSTRIAL TRIBUNALS 
 
CASE REF:	  1910/13 

CLAIMANT:	Kieran Nolan

RESPONDENT:	Quinn Glass Ltd

DECISION 

The unanimous decision of the Tribunal is that the claimant was not unfairly dismissed and his claim fails.

Constitution of Tribunal:

Employment Judge:	Employment Judge Sheils

Members:	Mr J Boyd
	Mr J Hughes

Appearances:

The claimant was represented by Mr M McGowan, Barrister-at-Law, instructed by Murnaghan Fee Solicitors.

The respondent was represented by Mr M McNally, Solicitor, of Hill Dickinson LLP, Liverpool.

CLAIM AND RESPONSE

THE CLAIM

1.	On 31 October 2013 the claimant submitted an ET1 claiming unfair dismissal, failure to pay notice pay and holiday pay.  The latter two claims were settled before hearing.  The claimant’s claim was that he had been unfairly dismissed on the grounds of ill-health capacity.

THE RESPONSE

Time-Limit Issue

2.	The respondent submitted a response on 6 December 2013.  The ET3 raised a time-limit issue but this matter was dealt with at a Case Management Discussion on 17 January 2014 and presented no further issue for this Tribunal.  The respondent’s ET3 accepted that they had terminated the claimant’s employment but for a fair reason namely ill-health, that they genuinely believed the claimant was unable to return to work in the foreseeable future due to his health and that the reason to dismiss him by reason of capability was within the range of reasonable responses in all the circumstances.

SOURCES OF EVIDENCE

Witnesses

3.	On the claimant’s behalf, the Tribunal heard from the claimant.

4.	On the respondent’s behalf, the Tribunal heard from Mr James McBarron, the respondent’s Warehouse and Logistics Manager, and from Ms Lorraine Leddy, the respondent’s HR business partner at its Derrylin site.

DOCUMENTS

5.	The Tribunal was furnished with an agreed hearing bundle containing relevant documentation.  Supplementary documents were submitted to the Tribunal during the course of the hearing. 

FINDINGS OF FACT

6.	The Tribunal found the following facts as agreed or as proven on the balance of probabilities:-

7.	The complainant was employed by Quinn Glass in June 2001 which was a wholly-owned subsidiary of the Quinn Group.  Throughout his employment the claimant was employed as a full-time HGV articulated lorry driver.  Prior to this employment the claimant had worked as a mechanic.  Quinn Glass was a glass production plant in Northern Ireland.  It operated its own transport and logistics and employs approximately 2,000 people. 

8.	The claimant’s work as an HGV driver involved delivering loads of glass bottles throughout the island of Ireland.  His rate of pay was based on the number of loads delivered and the distance of the individual loads.

9.	The claimant’s work delivering loads required him to couple and uncouple trailers to the tractor unit of the vehicles and ensure the loads were secure.  This aspect of his job involved an element of manual handling as various airlines and cables had to be connected between the units.  The fastenings that secured the loads needed to be checked and the side curtains had to be closed and secured.

10.	On 4 December 2012, the claimant was involved in a road traffic accident.  The claimant lost control of his lorry on a patch of black ice.  The trailer unit detached from the lorry and turned over.  However the tractor unit stayed upright and the claimant collided with an embankment.  He was quite badly injured in the accident suffering fractured ribs, fractured fingers and a dislocated thumb on his left hand.  He also sustained head and facial wounds that required stitching as well as general soft tissue injuries.

11.	The respondent regarded the claimant as an honest worker and accepted the claimant’s account of the accident.  The claimant was not prosecuted for any offence nor disciplined by the respondent.  The claimant was off work from the date of this accident until his dismissal on 31 July 2013. 
12.	The claimant received no pay until he contacted a Mr John McNally, the Group Transport Manager in late December 2012.  After this he received what he called “injury at work” pay until April 2013 when he received Statutory Sick Pay.  Mr McNally also advised the claimant about a voluntary redundancy scheme that was beginning in January 2013 that might be available to him.   

13.	The terms of the voluntary redundancy scheme were set out in a memo dated 23 January 2013 from the Chief Executive Officer, Paul O’Brien addressed to “ALL EMPLOYEES IN DERRYLIN/BALLYCONNELL.”  This memo set the details of a recent business overview which had highlighted an expansion in the Plastics and Glass departments, but a downturn in the market for Radiators, where some of that department’s work was being transferred to, creating the need to reduce the work force in Radiators in the Derrylin/Ballyconnell area by 13 workers.  

14.	The memo stated that while every effort would be made to redeploy the workers the company was prepared to make available, across the Derrylin/Ballyconnell businesses, a voluntary parting package on a limited basis and for a limited period.  The memo added that there was no guarantee that any individual request for a voluntary parting package would be successful as such the response to a request would be “driven by the prevailing circumstances in each specific case around the business needs.” The memo added that the closing date for expressions of interest for the scheme was the 7 February 2013.  The claimant did not make an application for voluntary redundancy under this scheme.

Meeting on 27 March 2013
          
15.	On 22 March 2013, at a time when the claimant had been absent from work for a period of 16 weeks, Mr McBarron invited the claimant to attend a meeting to discuss his health and working arrangements.  Mr Mc Barron arranged this meeting in line with the respondent’s absence policy and it took place on 27 March 2013.  It was agreed that this was a very short meeting during the course of which Mr McBarron asked the claimant how he was feeling and advised him that an appointment had been made for him with the company doctor the following week on 3 April 2013.

16.	At this meeting, the claimant told Mr McBarron that he was unable to bend the fingers on his left hand, that he had no grip.  He indicated that he had a wonky hip due to nerve damage, that he had been to physiotherapy but there was nothing more physiotherapy could do.  The claimant also stated that with his hand he would not be able to couple trailer/straps as at the minute as he was unable to move bed sheets or use a tube of toothpaste.

17.	At this meeting the claimant asked if he could get a voluntary redundancy package.  The notes of the meeting also recorded the claimant stating that if the package was good he would consider taking a parting package, and adding “I have never had a claim before and would not want to claim”.  There was no reply to the claimant’s query about a package at the time.  At hearing Mr McBarron stated that his focus was on getting the claimant back to work. 

Dr McGread’s Report April 2013
          
18.	The claimant attended Occupational Health on 3 April 2013.  He was examined by Dr McGread whose subsequent report noted that the claimant had been treated appropriately with ongoing physiotherapy and attendance at an orthopaedic consultant in relation to his left hand and the defective finger.  Dr McGread noted that the claimant’s symptoms had improved with ongoing physiotherapy and with general physical activity and noted that the claimant had recovered satisfactorily in that he was able to undertake normal day-to-day activities in a domestic environment including driving his own car without any undue difficulty.  

19.	In relation to the claimant’s fitness for work Dr McGread noted the following; that the claimant was capable of safely driving a heavy goods vehicle with limitations in relation to non-driving duties associated with this job, that the claimant would not be able safely to couple or uncouple a vehicle and that he would not be able repeatedly to open and close curtains or secure a load on a vehicle.

20.	Dr McGread noted that this position was likely to remain the case for the next three months and even beyond that he was not clear if the claimant would make an adequate recovery or not, to complete these functions of his job.

21.	Dr McGread added that the claimant could undertake a wide range of other activities, for example, he could sit, stand, walk supervised and even undertake a degree of manual handling using the left hand as long as that manual handling was not forceful or required a full grip.  Dr McGread gave one example of work the claimant could undertake in the factory, re-salting duties.

22.	Dr McGread’s report also added that he believed the claimant would be capable of a return to work as an HGV driver at some stage in the future even if the claimant did not have full function of the left middle finger.  He concluded that at some future date the claimant would have become accustomed to the loss of movement in his finger and should be able to accommodate for that.  Dr McGread stated that it was difficult to give a timeframe for this but he estimated that the claimant would be fit for such role in six months (from April 2013).  
 
Meeting on 7 June 2013
           
23.	On receipt of Dr McGread’s report Mr McBarron wrote again to the claimant and invited him to attend a meeting on 7 June 2013.  He advised the claimant that he could bring a representative with him.  The claimant declined this offer.  Ms Lorraine Leddy, HR was also present.  

24.	At the outset of the meeting Mr McBarron invited the claimant to comment on his present physical state.  The claimant stated that he still had no grip in his hand, that there was talk of surgery to cut the tendons but that he would thereafter still have no power.  He stated that physiotherapy was not doing anything for him.

25.	Mr McBarron advised the claimant that the purpose of the meeting was to discuss the company doctor’s report, the claimant’s return to work or, if the claimant was not fit to return his original job, to look at alternative roles or adjustments if required.

26.	The claimant was upset by the suggestion that the respondent wanted him to consider alternative roles and stated that he had come into the business as a truck driver and he would not go anywhere else.  Ms Leddy asked the claimant to reflect that if he was not fit for the driver role what other alternative roles would he consider, to which the claimant replied that he would not be shoved into any other role.

27.	Ms Leddy stated that it did not work like that and said she would pull together details of current vacancies that she would send to the claimant to review and they could discuss these at their next meeting, set for 14 June 2013.

28.	The claimant asked again if redundancy was open to him.  He told Mr McBarron that Mr McNally had advised him that if he had worked in Cement he could get redundancy.  Mr McBarron told the claimant that redundancy was not available to Glass employees and this was not an option for him.  The claimant asked about sick pay and Mr McBarron confirmed that he would look into this.

29.	It was common case that there was no discussion at this meeting about what if any reasonable adjustments could be made to the claimant’s job as an articulated truck driver to facilitate his return to that role. 

Meeting on 14 June 2013
         
30.	Mr McBarron confirmed that he had investigated the claimant’s sick pay position.  He noted that the respondent had not received a sick line from the claimant and once received it would be paid to him.  The claimant then asked about injury at work pay and he was told he would receive only sick pay.  At this the claimant stated that he would speak to Mr McNally himself on this.

31.	Ms Leddy advised the claimant that there were only four vacancies within the group.  The claimant stated that he would review them but reiterated that he was an articulated lorry driver.  Ms Leddy offered to review the roles with the claimant there and then but the claimant stated that he would review them himself over the weekend.  

32.	The claimant was invited to update Mr McBarron on his physical state.  He stated that he lacked the grip to couple a trailer.  He stated that he could not even grip toothpaste.  He stated that the physiotherapist had said that his grip would return but his GP had stated that it may never come back.  The claimant stated that his hand was pretty useless, that if he bent it, he was in pain.  He also stated that the more physiotherapy he got, the more pain his hand was in.

33.	Mr McBarron invited the claimant to comment on the doctor’s opinion that perhaps in six months he might be capable of returning to his driving role to which the claimant responded that his hand had not come on much in the past two months (since the date of the last doctor’s review).  The claimant stated that his physiotherapy treatment was complete, that it was painful, awkward and clumsy.

34.	Mr McBarron asked the claimant if there was any further treatment planned and the claimant stated that there was talk of surgery to cut the tendons but that he would thereafter still have no power.  He stated that the GP had told him to be prepared for the fact that the feeling might never return to his finger.

35.	In response to further prompting to consider a return to work to alternative roles or adjustments, the claimant stated that he had come into Quinn Glass as a truck driver and would not go anywhere else.

36.	Ms Leddy concluded the meeting by advising the claimant that if none of the roles was suitable and the claimant continued to advise that he was not fit for his current role, the respondent would have to review where to go next.

37.	Again it was common case that there was no discussion at this meeting about what, if any, reasonable adjustment could be made to the claimant’s job that would facilitate his return to work as and articulated truck driver.  

Meeting on 8 July 2013

38.	By letter dated 3 July 2013 Mr McBarron invited the claimant to attend a further meeting on 8 July 2013.  The letter advised the claimant that as that there were no reasonable adjustments that could be made to his role that would allow him to return to work and as the claimant had failed to advise if any alternative roles was suitable, the respondent now wished to take a decision about his continued employment.

39.	Mr McBarron advised the claimant that they would discuss what, if any, steps the respondent could take to assist the claimant’s return to work or if not, whether there were grounds for terminating his employment in light of his anticipated ongoing sick absence.  Mr McBarron advised the claimant that no decision regarding the termination of his employment had been made at that stage as the respondent wished to hear from him his representations in advance of making such a decision.

40.	At the meeting the claimant confirmed that none of the alternative positions offered to him was suitable.  This was on the basis that some were only temporary and all were in administration.  At this point, Ms Leddy advised the claimant that if he was interested in other alternative roles he could apply and go through the recruitment process in the usual way.

41.	Mr McBarron stated that the respondent had considered a number of adjustments that might assist the claimant return to his driving role.  He stated that they had considered whether having a second person with the claimant to assist complete coupling roles was viable, whether they could allocate the claimant only non-manual trips, or whether they could purchase a machine to assist the claimant with manual labour.  Mr McBarron stated that they had concluded that none of these was feasible.

42.	For his part the claimant stated that he could be fine in doing his job for 99% of the time but perhaps run into difficulties, for example, on a 4.00 am run with no one around to help him.

43.	At this, Mr McBarron concluded that the respondent was at a point where no suitable alternative roles were available and no suitable adjustments could be made to facilitate the claimant completing his original role.  Mr McBarron advised the claimant that the respondent was reviewing his continued employment within the company.

44.	The claimant again stated that if there was a package he would not put in a claim.  Mr McBarron advised the claimant that in line with his earlier request to be considered for a package that this matter had been put to the Board and it had been declined.

45.	The claimant went on to ask Mr McBarron what was on offer on termination of his employment and Ms Leddy advised the claimant that he would be entitled to 12 weeks’ notice and holidays accrued.  The claimant requested the details of these figures and the meeting was adjourned.  

Termination of Employment 31 July 2013
         
46.	At a further meeting with Mr McBarron and Ms Leddy on the 31 July 2013 the claimant was advised that a possible outcome of the meeting was the termination of his contract on grounds of ill health incapacity.  Mr McBarron summarised the position that on 8 July 2013 they had discussed adjustments and alternative roles but none was suitable to the claimant; that the claimant had confirmed that he continued to be unfit for his job and that the claimant asked for details of his leaving figures which the respondent had agreed they would send him.

47.	Mr McBarron proceeded to advise the claimant that the respondent had reached the decision to terminate his employment on the grounds of ill-health with immediate effect.  He advised the claimant that he was entitled to 12 weeks’ notice and holidays and gave the claimant full figures.  The claimant stated that he had a sick note that covered him until October but Mr McBarron advised him that this would cease on termination of his employment.  The claimant was advised of his right to appeal this decision.  The claimant did not appeal this decision. 

           The claimant subsequently started up a business as digital graphic designer.  He was self-employed and employed no workers. 

At Hearing

48.	In his witness statement and at this hearing the claimant made a number of submissions and contentions, some of which he stated that he had raised with the respondent during the termination process. 

49.	The first of these was the claimant’s submission that the respondent had acted precipitously, unreasonably and unfairly in terminating his contract.  He contended that this was demonstrated in a number of ways which he claimed supported his view that the respondent wanted to remove him from his job after the accident as he had been aware that other drivers had been treated in the same way.  

50.	The claimant submitted that the first instance of this was the fact that the respondent had dismissed him before the expiration of the periods for improvement Dr McGread had identified. 

51.	Dr McGread’s report stated that the limitations related to non-driving duties associated with the claimant’s job were likely to remain the case for the next three months and that the claimant would be capable of a return to work as a HGV driver at some stage in the future which he estimated could be within six months of that examination.  The claimant submitted that it was unfair and unreasonable for the respondent to have dismissed him before the end of these periods.

52.	The claimant also submitted that it was unreasonable of the respondent not to have re-referred the claimant to Occupational Health prior to his dismissal.  He cited that fact that he had been referred to Occupational Health as quickly as just one week from the date of his first meeting with Mr McBarron in March 2013 and this demonstrated that the respondent had easy access to Occupational Health and that a further referral prior to dismissal would not have been onerous for the company in terms of time or cost.  

53.	However Mr McBarron stated that he had reached the conclusion that the claimant was unfit to return to work on the combination of Dr McGread’s report and the claimant’s own statements of his ability to do his job. 

54.	It was not disputed that the claimant had stated at his third meeting with Mr McBarron on 14 June 2013, some six and a half months after the accident, that he was not fit to couple trailers, that he still had no grip and could not grip a tube of toothpaste and that his finger was pretty useless.  

55.	The Tribunal found that it was reasonable for Mr McBarron to have based his assessment of the claimant’s capacity to do his job on both Dr McGread’s prognoses and the claimant’s own descriptions of his capabilities, without the need for a further referral to Occupational Health.

56.	The claimant submitted that the respondent failed properly to assess what reasonable adjustments could have been made to his own job that would have facilitated his return to that job.  It was accepted that the only discussion in relation to possible reasonable adjustments to his carrying out his primary role occurred at the meeting on 8 July 2013 when Mr McBarron stated that they had looked at a number of possible adjustments and had decided that none of them was feasible.  

57.	The claimant submitted that this assessment was presented to him at the meeting on 8 July 2013 without discussion.  In his witness statement the claimant contended that the respondent had failed to consider the possibilities of the claimant being assigned to driving other vehicles as he was aware of other drivers had been allocated to different types of vehicles, including “tipper” and bulk tanker lorries, both of which he said would have been easier for him to have managed.  At hearing the claimant contended that the respondent failed properly and reasonably to have considered him as able to drive these other vehicles, especially “tipper” lorries with automatic dustcovers and automatic tailboards.

58.	However the claimant produced no evidence of any other drivers who had been given different lorries when they had been no longer able to drive articulated trucks.  When the claimant was asked why he had not sooner raised the possibility of him driving other types of vehicles, at his meetings with Mr McBarron, he said that it was not his position to beg for work. 

59.	Mr McBarron did not accept that the manual work relating to “tipper” or bulk tanker lorries was any less than the work involved for an articulated lorry driver.  While he accepted that there would be less work coupling and uncoupling the tractor/trailer unit on a “tipper” lorry, as that happened less regularly, there would still be a significant amount of opening the tailboard and pulling on and off the dustcovers.  He also stated that where there was an automated dustcover this still required manual ratcheting.  Mr McBarron stated that as far as he knew the respondents did not own a vehicle with an automatic tailboard.  It was put to Mr McBarron that the respondent did own such a vehicle and he was asked if he checked out the situation.  Mr McBarron stated that he had concluded from within his own knowledge that as far as he was aware there were no such vehicles in Quinn Glass.

60.	Mr McBarron also stated that there would be a significant degree of manual work entailed in driving bulk lorries as loading and unloading these required the driver to climb to the top to unscrew the bulk head prior to delivery.  

61.	The Tribunal noted that the claimant’s only comment in relation to what adjustments might be made to facilitate his doing his job was when he said that he could be able for his job 99% of the time but maybe get into difficulties at 4.00 am when there would be no one around to help him.  The Tribunal also noted that this comment was made less than a month after the claimant had told Mr McBarron that he still had no grip, could not couple a trailer and could not grip a tube of toothpaste and that his GP had said his grip might never come back. 

62.	The Tribunal accepted that Mr McBarron did not, at the relevant time, investigate whether the claimant was fit to carry out the manual work involved in other driving roles.  However the Tribunal accepted that it was reasonable for Mr McBarron not to have done so where he was faced by the claimant’s assertions of his limited manual abilities.

63.	The claimant also submitted that the respondent had unreasonably failed to investigate the availability of or offer him suitable alternative work.  He submitted that the respondent had further failed to act reasonably in offering him four alternative “positions” that could not be described as suitable.  He contended that the posts offered were so unsuitable that they were “a sham”.

64.	The claimant contended at hearing that he had at all times emphasised to the respondent his determination and drive to get back to work, “even if he had to sweep the streets”.

65.	The respondent’s position was that the claimant did not wish to return to another role and did not seriously consider the alternatives proffered.  Ms Leddy stated that the posts offered to the claimant on 14 June 2013 were the only ones available at that time.  She stated that she was unaware if other posts had become available between that date and the meetings in July as she had been under the impression that the issue she was considering was whether the claimant was fit to return to work at all.  

66.	The Tribunal noted that there was no evidence that the claimant had stressed his determination to return to work, even to sweep the streets, as he claimed.  The Tribunal noted that at the meetings the claimant’s focus was on whether he would be able to get a redundancy package and on emphasising to the respondent how unfit he was to return to work and his determination to return only to his former job.

67.	The Tribunal noted that the four posts in question required administrative skills which were not part of the claimant’s driving job.  However the Tribunal also noted that the claimant had refused to go into the details of these posts with Ms Leddy and had disregarded them as unsuitable, without any proper consideration.  

68.	The Tribunal found that in these circumstances, where the claimant presented with no real interest in returning to any job except the one he insisted he was unfit to do, the respondent had acted reasonably in terminating the claimant’s employment.

The Law

Unfair Dismissal

69.	Article 126 of the Employment Rights (Northern Ireland) Order 1996 provides an employee with the right not to be unfairly dismissed by his employer.  Article 130 of the same order indicates that any dismissal of an employee is fair if the employer shows that the reason for the dismissal is a reason falling within Article 130.

70.	Article 130 states at paragraph (2) a reason falls within this paragraph if it –

		“(a)	relates to the capability or qualifications of the employee performing work of the kind which he was employed by the employer to do, 

		(b)	relates to the conduct of the employee,

		(c)	is that the employee was redundant or,

		(d)	is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of the duty or restriction imposed by or under a statutory provision.”

71.	Article 130(4) states where the employer has fulfilled the requirements at paragraph 1, the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – 

		“(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and

		(b)	shall be determined in accordance with equity and the substantial merits of the case.”

THE TRIBUNAL’S CONCLUSIONS

72.	In light of the Tribunal’s findings of fact the Tribunal concludes that the respondent terminated the claimant’s employment for the fair reason that he was incapable of returning to work.

73.	In reaching this conclusion the Tribunal found that the respondent had formed a reasonable and genuine belief that the claimant was unfit to return to work based on medical evidence and the evidence of the claimant himself.

74.	The Tribunal also concluded that the process whereby the respondent had reached that conclusion and had dismissed the claimant had been reasonable and fair.

75.	Accordingly the claimant’s claim failed.

Employment Judge:       

Date and place of hearing:    5 March 2014 and 28 & 29 April 2014, Belfast.

Date decision recorded in register and issued to parties: