THE INDUSTRIAL TRIBUNALS

CASE REF:	 92/14 

CLAIMANT:			Neil Bickerstaff

RESPONDENT:		Gerard Butcher

DECISION 

The unanimous decision of the tribunal is that the claimant is disabled within the meaning of the Disability Discrimination Act 1995 (as amended), and that his claim of harassment against the respondent is upheld.

Constitution of Tribunal:

Employment Judge:	Employment Judge Crothers

Members:	Mrs E Gilmartin
	Mr I Foster

Appearances:

The claimant was represented by Mr B McKee, Barrister-at-Law instructed by Donnelly and Kinder Solicitors. 

The respondent did not present a response to the tribunal.

THE CLAIM

1.	The claimant made a number of claims against Randox Laboratories Ltd, John Ross, Linda Magee, Alan Hammond and the respondent.  As appears from the Case Management record of proceedings appended to this decision, the claimant reached a settlement with Randox Laboratories, Linda Magee and Alan Hammond.  The claim against John Ross was conciliated in the course of the substantive hearing.  The settlement excluded Gerard Butcher and the proceedings continued against him.

2.	ISSUES

	The relevant issues before the tribunal were as follows:-

(1)	At the time of the alleged discriminatory acts, was the claimant a disabled person, within the meaning of Section 1 of the Disability Discrimination Act 1995 as amended, (“DDA”), by virtue of the following conditions or a combination thereof:

•	Gout? – Obesity?

	(2)	Has the claimant been subjected to harassment for a reason that relates to his disability, as defined by Section 3B and contrary to Section 4(3) of the DDA as amended, in respect of the alleged conduct and comments of Gerard Butcher as set out in the claimant’s ET1 and at factual issue No. 1 below?

		Factual Issue

		Did Gerard Butcher make comments about the claimant’s mobility and obesity including the following;

•	Comments directed at the claimant from April 2011 until 7 October 2013, and from January 2013 almost on a daily basis.

•	Comment made to the claimant in and around July 2013 that the claimant was “so fat he could hardly walk” and that he was “a fat bastard”.

•	Comment made to the claimant in and around 1 October 2013 that he was “so fat he would hardly feel a knife being stuck into him”.

3.	SOURCES OF EVIDENCE

	The tribunal heard evidence from the claimant, and from his wife Nicola Bickerstaff, Eugene McGlone, an official of Unite the Union, and John Ross on his behalf.  The tribunal also heard evidence from the claimant’s General Practitioner, Dr John Byrne in relation to the issue of disability.  The tribunal had also heard evidence from Alan Hammond, Deputy IT Manager of Randox Laboratories Ltd; John Lamont, Chief Scientist; Ivan McConnell, Research and Development Manager; Pauline Armstrong, Global Quality Assurance and Regulatory Affairs Manager; and Jolene Jamison, Human Resources Officer, all of Randox Laboratories Ltd (“Randox”).  Mr McKee, on behalf of the claimant, relied on the evidence prior to the settlement with the other respondents in case reference numbers 92/14, 522/14 and 1232/14, in relation to the case being continued against Gerard Butcher.  

4.	FINDINGS OF FACT

	The tribunal, having carefully considered the evidence before it in relation to the above issues, made the following findings of fact on the balance of probabilities:-

	(i)	The claimant was employed by Randox from 20 August 1997 until his resignation effective on 23 June 2014.  He presented his claim to the tribunal on 23 December 2013.

	(ii)	During the substantive hearing the respondents who settled their cases with the claimant accepted that the claimant was disabled as defined by the DDA by virtue of his gout.  The tribunal is satisfied that he was disabled owing to this condition.  The claimant contended that his morbid obesity was also a disability.  In this regard, the tribunal was mindful of the Advocate General’s written opinion in the Danish case of Kaltoft which is the subject of a decision from the European Court of Justice issued on 18 December 2014.  The Advocate General’s opinion was that although EU law does not prohibit discrimination on the ground of obesity per se, it does prohibit discrimination on the ground of disability and the effects of morbid obesity would probably result in a worker being defined as disabled provided the effects of his obesity are so severe in relation to, for example, mobility, endurance, or mood that he falls within the definition of disability.  

	(iii)	Paragraphs 58 and 59 of the judgment in the European Court of Justice decision in the case of Karsten Kaltolf v the Municipality of Billund (Case – 354/13) state as follows:  

			“It should be noted that obesity does not in itself constitute a ‘disability’ within the meaning of Directive 2000/78, on the ground that, by its nature, it does not necessarily entail the existence of a limitation as referred to in paragraph 53 of this judgment.

		However, in the event that, under given circumstances, the obesity of the worker concerned entails a limitation which results in particular from physical, mental or psychological impairments that interaction with various barriers may hinder the full and effective participation of that person in professional life on an equal basis with other workers, and the limitation is a long-term one, obesity can be covered by the concept of ‘disability’ within the meaning of Directive 2000/78 (see, to that effect, judgment in HK Danmark, EU:C:2013:222, paragraph 41).”

		The Court therefore ruled that:

		“1.	EU law must be interpreted as not laying down a general principle of non-discrimination on grounds of obesity as such as regards employment and occupation.

		2.	Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the obesity of a worker constitutes a ‘disability’ within the meaning of that directive where it entails limitation resulting in particular long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers.  It is for the national court to determine whether, in the main proceedings, those conditions are met.”

	(iv)	The medical evidence before the tribunal indicated that a person having a body mass index of 48.5 (as is the claimant’s case) may not necessarily have gout, although the claimant actually suffered from the condition.  	Dr Byrne pointed out that the stereotype for someone with such a BMI was of an overweight person with gout.  His opinion was that the claimant’s gout would very likely improve should he lose weight.  The tribunal is satisfied that the claimant’s sleep apnoea is directly linked to his weight and morbid obesity and that his consequent tiredness and loss of concentration are also linked to his weight.  Dr Byrne also observed the claimant walking from his car and described how he was out of breath and perspiring owing to his weight.  The tribunal accepts that although the knee, joint and back pains experienced by the claimant are gout related, his mobility is also substantially affected by his morbid obesity and the stress on his weight bearing joints is profound.  In his report of 8 September 2014, Dr Byrne comments on the claimant’s shortness of breath on minimal exertion and his need to use crutches on occasions to help with mobility.  His opinion was that his morbid obesity condition could end after around 6 months provided he lost weight at the rate of one to two pounds per week.  The tribunal had no evidence before it to conclude that this was likely to be the case.

	(v)	In his report of 8 September 2014 Dr Byrne includes the following:-

			“He has also had to use strong analgesics to try and help the pain of the gout including arcoxia which is a very strong non-steroidal anti-inflammatory drug, which unfortunately due to the detrimental effects it has on the heart and kidneys he has no longer been able to use in the long-term without it debilitating him and reducing his exercise tolerance.

	Mr Bickerstaff saw me regarding his current exacerbation of his mental health problems and anxiety state in December 2013 when he had been off for eight weeks due to stress, depression and anxiety.  I clearly stated he had a history of same but it has been [exacerbation] by work related stress which the patient at that time had described as two member(s) of staff commentating negatively about his weight.  This led us to restarting his antidepressants for anxiety using prn Diazepam and referring him to Tina Cooke, our in-house counsellor.  Unfortunately his mental health has deteriorated since these events and they have had a very profound and negative effect on him which the patient clearly at the time attributed to these work related stressors.

		It is clear on his history that his debility due to his weight, gout, knee and back pain were pre-existing for a long duration but particularly the mental health problems have been exacerbated by the work related stress.

		Given the physical and persistent effects Mr Bickerstaff’s medical complaints have on him and the substantial limitations this places on his physical abilities on a day to day [basis] I would state that he is disabled as per the Disability Discrimination Act 1995.”

	(vi)	The tribunal also had the benefit of Dr Laxminarayan, Consultant Rheumatologist’s report dated 14 March 2014 which diagnoses his condition as “gout, chronic back pain, anxiety”, and comments that since being on regular medication he has not had a gout episode.  It was acknowledged by Dr Byrne that historically the claimant was “not good” at taking medication.  His diet and alcohol consumption has also affected his gout condition.

	(vii)	The medical report of The Occupational Health Doctor, Dr Jenkinson which followed an examination of the claimant on 4 August 2014, (which also refers to his gout), includes the following:

		“1 ... From the history and General Practitioner’s records Mr Bickerstaff has suggested impairment ... he has suffered impairment as a result of his psychological ill health, sleep apnoea syndrome and his excessive body mass index ...

		2 ... His mobility remains impaired secondary to his morbid obesity.

		...

		6 ... His mobility also remains impaired secondary to his morbid obesity ... You will see from the history obtained that Mr Bickerstaff reports difficulty walking more than one hundred metres at a time, difficulty with climbing stairs although he is able to climb infrequently but does so with some symptoms.  He cannot however access particularly steep stairs such as a loft.

		He reports longstanding alteration in mood, low self-esteem and poor motivation which have impaired his ability to interact socially.  He also reports reduced concentration which impacts negatively on normally daily activities, noticeable when trying to read or follow television programmes”.

		The prognosis at paragraph 12 states:

		“It is hoped that the frequency of attacks of acute gout will be reduced with compliance with Allopurinol.  However acute attacks can still occur. It is unlikely that there will be much long term improvement in terms of his mobility given his residual weakness and loss of muscle mass and in addition as a result of his morbid obesity”.

Conclusion on Definition Issues
			 
	(viii)	Having considered the evidence before it on the definition issue together with the law as set out in paragraph 6 of this decision and as analysed in Mr McKee’s submissions annexed to this decision, the tribunal is satisfied that the claimant is disabled by a combination of his morbid obesity and gout conditions and by each condition separately.

5.	LIABILITY ISSUES

	(1)	On 19 March 2013 the claimant forwarded a text to his Line Manager, Alan Hammond, Randox’s Deputy IT Manager, stating as follows:-

		“Alan Gerard has bullied me for years calling me fat or useless on a day to day basis you know you have heard him the only way I can get him to stop is not to talk to him.  Sorry for the txt but need you to know how I feel”. 

	(2)	The tribunal accepts that the claimant was talkative and open in the working environment and that he reacted to rather than instigate the comments made about him by Gerard Butcher, the respondent.

	(3)	The respondent was dismissed following a disciplinary hearing held on 22 November 2013.  In the disciplinary outcome letter signed by Linda Magee, Human Resources Manager, she includes the following:-
                       
		“The Hearing had been arranged to discuss alleged breaches of the Company’s Positive Work Environment Policy after a grievance was raised against you citing Harassment and Bullying in the workplace.

		You were given every opportunity to explain and account for your actions.

		After the hearing and subsequent adjournment, I give my decision which is as follows:

-		You have admitted to the use of excessive foul language in the workplace and engaging in name calling against Neil Bickerstaff as well as threats against Stephen Sheridan.

-		In mitigation, you have stated that you thought this was Banter and that it was not intentional on your part but borne out of frustration.  However you also agree that in the case of Neil, previous meetings had been held in an attempt to address this issue.

		I have decided that under the circumstances I have no option but to Summarily Dismiss you from the company without Notice or payment in lieu of notice.

                            	Further information on how I reached this decision is included in my Conclusion Document which will follow in a couple of days.
                           
		You have the right to appeal this decision.  This should be made in writing and addressed to myself within 5 working days from the receipt of this letter, stating your reasons for the appeal”.

	(4)	The tribunal is not satisfied that the disciplinary outcome letter adequately reflects the background of sustained harassment and bullying against the claimant.  Alan Hammond, who was generally an unconvincing witness, described a meeting held some time in 2011 with the IT Support Team including the claimant, Lee Kennedy, the respondent, and himself, which included a discussion on foul language being used within the IT department.  The tribunal is satisfied that foul and abusive language was used by Gerard Butcher against the claimant in relation to his weight.  This commenced after Mr Foy left the Department in April 2011.  Moreover, the tribunal is satisfied that this harassment and bullying intensified considerably after January 2013 precipitating the claimant’s text to Alan Hammond referred to above, and further intensified in the 6 month period preceding October 2013.  The tribunal is also satisfied, at least from January 2013 onwards, that expressions such as “fat bastard” and “fat cunt” were used by the respondent against the claimant.  The tribunal accepts the claimant’s evidence that such incidents were accompanied by remarks about how he was useless at his job.  The tribunal is also satisfied that the harassment and bullying related to the claimant’s morbid obesity and that in April 2013 the claimant went to the new IT Manager Richard Reeves, about the bullying and harassment.  The tribunal is further satisfied, on the evidence, that other terms were used by Gerard Butcher on a frequent basis from January 2013 and, in particular in July 2013 that the claimant was “so fat” he could hardly walk and that he was a “fat bastard”.  Furthermore, on 1 October 2013 Alan Hammond, Tony Magee, Stephen Sheridan, Alyson Kerr, Niall O’Hagan, and the respondent together with the claimant, were discussing how a member of staff had been held at knifepoint in Johannesburg.  The claimant joked that if he were held at knifepoint he would take the knife from the attacker.  The tribunal accepts that at this point Gerard Butcher stated that the claimant was “so fat” that he “wouldn’t feel a knife being stuck into him”.

	(5)	The claimant sent a grievance letter to Linda Magee, Human Resources Manager on 18 October 2013 as follows:-
                 
				“Dear Linda

				Re: Formal Grievance re Bullying and Harassment at Work

		I refer to yours of 10 October last and must advise that for quite a considerable period of time I have been subjected to derogatory comments and remarks from a number of staff particularly from Gerard Butcher.  I have also been subjected to derogatory comments from my manager, most of these comments; in fact all of these comments are disparaging remarks relating to my weight and body image which are causing me stress and anxiety and I understand make my general health deteriorate to an extent that I appear to have more frequent absences.  I understand this is a common symptom of work-related stress.

	I have attempted to resolve this informally: I have spoken directly to Gerard and asked him to desist; he just laughs in my face and is inclined to repeat his comments to any audience.  Several months ago I brought this to the attention of my direct line manager to no effect and on the day immediately preceding my current absence Gerard Butcher made a disparaging comment which left me in such a distressed state that I needed to get out of work.  I am currently consulting with my GP and am following his advice.

		I have brought this matter to the attention of my union (primarily due to the failure of my line manager to deal with the issue when I first raised it with him and my manager joining in on the bullying and making derisory comments himself), who will support and represent me at all hearings or meetings relating to this grievance.  I look forward to you creating a work atmosphere that is free from bullying and harassment, which will speed up my recovery and allow me to return to work.  I would also be grateful for an indication of any other assistance that you might provide to assist in my recovery

	Yours sincerely

	Neil Bickerstaff”

	(6)	The tribunal had the opportunity of considering the correspondence including the statements obtained in the course of John Lamont’s subsequent investigation into the claimant’s grievance.  In his grievance report dated 28 November 2013, John Lamont recounts that the claimant went off on sick leave on 2 October 2013, and that on 10 October 2013 Human Resources was informed that his sick leave was as a result of work-related stress due to bullying.  He also refers to the grievance letter of 18 October 2013, and recounts how the claimant was obviously genuinely distressed during his meeting with him as he recalled the alleged four years of bullying he had sustained from the respondent.  The report goes on to state:-
                   		
		“Neil said that this all coincided with the departure of the then IT Manager, Billy Foy and at first Neil thought the remarks by Gerard about his weight were just a bit of banter however he felt the nature of it became more aggressive and Gerard questioned him any time he was doing work and told him how useless he was and that he could do it better.  Neil, Gerard and Alan all confirm there were meetings held regarding the problems between Gerard and Neil in 2011 and 2012 and Neil and Alan confirm Alan instructed Gerard that he had to stop the foul and abusive language, however Neil claims things got even worse in 2013 at the same time they got a new Manager Richard Reeves.

		I asked Neil to provide me with specific examples of Gerard’s behaviour towards him which he gave in detail to include quite a list of derogatory comments e.g. fat cunt, wanker, fat bastard, lazy fucking bastard, useless twat.  Neil provided several examples of events that had occurred and these were corroborated by one or more of the IT staff as detailed in their witness statements.  After speaking to every member of IT the general consensus was that there is a very negative atmosphere in the department and this is created by Gerard who is viewed as being intimidating and unapproachable in addition to the continuous foul and offensive language used by him.

		Gerard did not deny using foul language or making derogatory remarks to Neil but said these were either done in jest or out of frustration with Neil and his work.  I do not accept this as plausible nor justifiable for what I believe is the sustained bullying and harassment Gerard has inflicted on Neil.  Not only is Gerard’s behaviour completely immoral and unacceptable it is a clear breach of the Company’s policy on a Positive Work Environment which details:

		“This Company is committed to creating a harmonious working environment, which is free from harassment and bullying and in which every employee is treated with respect and dignity”.

		“Harassment is unwanted conduct that violates a person’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for them”.

		“The following, though not an exhaustive list, may constitute harassment:

•	Verbal and written harassment through jokes, offensive language, gossip and slander, sectarian songs, letters”.

“Workplace bullying is repeated inappropriate, offensive behaviour, which is often an abuse of power or position.  It can be direct or indirect, either verbal, physical or otherwise, conducted by one or more persons against another or others, at the place of work and/or in the course of employment, which could reasonably be regarded as undermining the individual’s right to dignity at work.

The following examples may constitute bullying:

•	Threats, abuse, teasing, gossip and practical jokes.

•	Humiliation and ridicule either in private, at meetings or in front of customers/clients.

•	Name calling, insults, devaluing with reference to age, physical appearance”.

(7)	Reference is also made in the report to the role of John Ross as the claimant’s Manager.  It continues by stating:-
          	
		“I understand this bullying has been going on over a longer period of time than John Ross was present or in charge ... however it seems that the situation had escalated within the last 6 months to an unbearable level which has resulted in Neil going off work sick and as such John failed in his managerial responsibility.

In conclusion I uphold Neil’s grievance in its entirety and have initiated appropriate formal actions against those cited for this Gross Misconduct”.

	(8)	John Ross was also dismissed on 25 November 2013.

(9)	Mr McKee indicated that he wished the tribunal to decide on the liability issue only and that a remedy would not be pursued against the respondent.

6.	THE LAW

(i)	Section 1 of the DDA provides that:-

		(1)	“Subject to the provisions of Schedule 1, a person has a disability for the purposes of this 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.

		(2)	In this Act “disabled person” means a person who has a disability”.

	(ii)	Paragraph 4(1) of Schedule 1 to the Act provides that an impairment is only to be taken as affecting the ability of a person to carry out normal day to day activities if it affects one of certain specified activities, namely:

		(a)	mobility;
		(b)	manual dexterity;
		(c)	physical co-ordination;
		(d)	continence;
		(e)	ability to lift, carry or otherwise move everyday objects;
		(f)	speech, hearing or eyesight;
		(g)	memory or ability to concentrate, learn or understand;
		(h)	perception of the risk of physical danger”.

	(iii)	The Guidance at D20 (Mobility) together with Appendix B of the Code are relevant in this case in relation to the definition issue.

	(iv)	The law on the definition issue is otherwise adequately set out in counsel’s written submissions annexed to this decision.

	(v)	In relation to the meaning of harassment, Section 3B of the DDA as amended provides as follows:-
			
“Meaning of “harassment”

3B.—(1)	For the purposes of this Part, 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 a purpose or effect of —

(a)	Violating the disabled person’s dignity, or

(b)	Creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2)	Conduct shall be regarded as having the effect referred to in paragraph (a) or (b) of sub-section (1) 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”.

BURDEN OF PROOF

7.	(1)	Guidance on the burden of proof in direct discrimination cases is contained in the Annex to the judgment in the case of Igen and Others v Wong [2005] IRLR 258.  However, the reversal of the burden of proof also applies to cases involving failure to make reasonable adjustments as well as disability related discrimination, harassment and victimisation against a disabled person.

	(2)	In the case of J P Morgan Europe Ltd v Chweidan [2011] EWCA Civ 648, (although dealing with direct discrimination) Lord Justice Elias states as follows:-

“5. Direct disability discrimination occurs where a person is treated less favourably than a similarly placed non-disabled person on grounds of disability.  This means that a reason for the less favourable treatment – not necessarily the only reason but one which is significant in the sense of more than trivial – must be the claimant’s disability.  In many cases it is not necessary for a tribunal to identify or construct a particular comparator (whether actual or hypothetical) and to ask whether the claimant would have been treated less favourably than that comparator.  The tribunal can short circuit that step by focussing on the reason for the treatment.  If it is a proscribed reason, such as in this case disability, then in practice it will be less favourable treatment than would have been meted out to someone without the proscribed characteristic: See the observations of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 paragraphs 8-12.  This is how the tribunal approached the issue of direct discrimination in this case.

	6.	In practice a tribunal is unlikely to find unambiguous evidence of direct discrimination.  It is often a matter of inference from the primary facts found.  The burden of proof operates so that if the employee can establish a prima facie case, ie, if the employee raises evidence which, absent explanation, would be enough to justify a tribunal concluding that a reason for the treatment was the unlawfully protected reason, then the burden shifts to the employer to show that in fact the reason for the treatment is innocent, in the sense of being a non-discriminatory reason: See Peter Gibson LJ in Igen v Wong [2005] IRLR 258, paragraph 37”.

	(3)	The tribunal also received considerable assistance from the judgment of Lord Justice Girvan in the Northern Ireland Court of Appeal decision in Stephen William Nelson v Newry and Mourne District Council [2009] NICA 24.  Referring to the decision in Madarassy v Nomara International plc [2007] IRLR 246 CA, he states at paragraph 24 of his judgment:-

		“This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination.  The whole context of the surrounding evidence must be considered in deciding whether the Tribunal could properly conclude in the absence of [an] adequate explanation that the respondent has committed an act of discrimination.  In Curley v Chief Constable [2009] NICA 8 Coghlin LJ emphasised the need for a Tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination.  The need for the Tribunal to retain such a focus is particularly important when applying the provisions of Article 63A.  The Tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination”.

SUBMISSIONS

8.	The tribunal carefully considered the helpful written submissions provided by the claimant’s counsel.

CONCLUSIONS

9.	(1)	In arriving at its conclusions, the tribunal also considered the definition of harassment and workplace bullying in Randox’s policy documentation.  It is satisfied that the claimant has proved facts from which the tribunal could conclude in the absence of an adequate explanation that the claimant had been harassed within the meaning of the Act and that he was harassed for a reason which related to his disability, namely his morbid obesity condition.  The respondent attempted to provide a form of explanation to John Lamont during his grievance investigation.  However this was not accepted and the respondent was subsequently dismissed by Randox.  It is also significant that the respondent did not present a response to the claimant’s claim and therefore did not offer any form of defence to the allegations made against him.

	(2)	The claimant’s claim of harassment for a reason relating to the claimant’s disability from April 2011 until (and including 1 October 2013) is therefore upheld.

Employment Judge:  

Date and place of hearing: 1-5, 8, 9 December 2014, Belfast     		

Date decision recorded in register and issued to parties: