Conn vs Department for Social
| Jurisdiction | Northern Ireland |
| Judgment Date | 19 November 2012 |
| Respondent | Department for Social |
| Docket Number | 00154/11IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REFS: 154/11
564/11
CLAIMANT: Bernice Conn
RESPONDENT: Department for Social Development
DECISION
The unanimous decision of the tribunal is that:-
(1) The claimant was unfairly dismissed by the respondent. As agreed, the claim of the claimant will be re-listed for a hearing to consider the amount of any compensation, by way of remedy, which the claimant is entitled to on foot of the said decision on liability.
(2) The claimant was not unlawfully discriminated against and/or harassed and/or victimised, contrary to the Disability Discrimination Act 1995, as amended.
(3) The respondent did not make any unauthorised deductions from the claimant’s wages in relation to any failure to pay notice pay to the claimant.
(4) The claimant’s claim that the respondent made an unauthorised deduction from the claimant’s wages in relation to any failure to pay holiday pay to the claimant was dismissed following oral withdrawal by the claimant during the hearing.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Mr J Smyth
Mr J Hughes
Appearances:
The claimant appeared in person and was not represented.
The respondent was represented by Mr M Potter, Barrister-at-Law, instructed by The Departmental Solicitor’s Office.
Reasons
1.1 The claimant, by her then solicitors, presented a claim to the tribunal on 22 December 2010 (Case Reference No: 154/11) in which, inter alia, she claimed she had been unfairly dismissed; and that she had also been unlawfully discriminated against and/or harassed and/or victimised by the respondent and/or the respondent had failed in its duty to make reasonable adjustments, contrary to the Disability Discrimination Act 1995, as amended. The respondent entered a response on 23 February 2011, in which it denied liability for the said claims of the claimant. The claimant, by her then solicitors, presented a further claim to the tribunal on 14 February 2011 (Case Reference No: 564/11), in which she repeated the claims, previously set out in Case Reference No: 154/11; but also included further claims of breach of contract and/or unauthorised deductions of wages and/or discrimination and victimisation, contrary to the Disability Discrimination Act 1995, as amended, arising from the withholding of pay, including notice pay and/or holiday pay, on the termination of her employment with the respondent on or about 22 December 2010. The respondent presented a response on 28 March 2011, denying liability for the said further claims of the claimant. The said claims were subsequently made the subject of a ‘Consolidation Order’, to enable the said claims to be heard together by the tribunal.
1.2 It is important to note, at the outset of this decision, that the claimant’s claims of direct disability discrimination and/or harassment pursuant to the Disability Discrimination Act 1995, as amended (‘the 1995 Act’), were based not on the grounds that the claimant herself was a disabled person, but on the grounds of her association with a disabled person, namely her disabled father, arising out of her caring responsibilities for him. She did so following the decision of the European Court of Justice in the case of Coleman v Attridge Law [2008] IRLR 722, which held that the EC Framework Employment Directive outlawed associative direct discrimination and harassment on grounds of disability, and the decision in the case of Attridge Law LLP v Coleman (No 2) [2010] IRLR 11 where the Employment Appeal Tribunal held that the 1995 Act should be read so as to permit associative discrimination. Indeed, it was not disputed by the respondent’s representative that the above claims could be made by the claimant, subject to liability, following the Coleman litigation, referred to above.
1.3 At a Case Management Discussion on 29 June 2011, as set out in the Record of Proceedings dated 5 July 2011, the parties, who were both represented by solicitors and counsel, identified legal and factual issues which included a claim of disability-related discrimination and also a claim of failure by the respondent to comply with its duty to make reasonable adjustments, pursuant to the 1995 Act. Following a Case Management Discussion on 20 October 2011, as set out in the Record of Proceedings dated 25 October 2011, where again both parties were represented by solicitors and counsel, the claimant’s representatives confirmed, in writing, that the claimant’s claim of disability-related discrimination was no longer claimed by the claimant, following the decision in the case of Malcolm v Lewisham LBC [2008] UKHL 43.
1.4 At a Case Management Discussion on 16 February 2012, as set out in the Record of Proceedings dated 17 February 2012, the parties, who were both represented by solicitors and counsel, agreed an amended statement of legal and main factual issues, for the purposes of these proceedings. In this amended statement, the claimant no longer made a claim that the respondent had failed in its duty to make reasonable adjustments. At the commencement of this hearing, when the claimant was no longer represented by a solicitor and counsel it became clear to the tribunal, in the course of opening submissions, the claimant was not aware that this claim was not contained in the agreed amended statement of issues prepared by her then representatives. The tribunal gave the claimant time to consider her position, including an opportunity to seek assistance from the Labour Relations Agency; and, if she considered it appropriate, to make such further application to allow her to amend the statement of issues to include such a claim. Having done so, the claimant informed the tribunal she had no such application to make. In any event, in the absence of such an application, the tribunal was satisfied, having considered the judgment of the European Court of Justice in Coleman, that the Court had accepted that the Directive does not require a duty of adjustment to carers of disabled people, because such measures are ‘designed specifically to facilitate and promote the integration of disabled people into the working environment and, for that reason, can only relate to disabled people’. (See further Harvey on Industrial Relations and Employment Law, Section L, Paragraph 34.) In these circumstances, the tribunal therefore did not consider and determine any claim of any failure by the respondent to comply with any duty to make reasonable adjustments. Although the claimant accepted she had not made any application to amend the said issues and acknowledged the terms of the judgment of the European Court of Justice by the tribunal, as set out above, she had difficulty in accepting, throughout the hearing, the absence of such a claim in relation to the matters the subject-matter of her complaint; and that her claim of disability discrimination was thereby limited and many of her allegations which, in essence, amounted to failures by the respondent to make reasonable adjustment could not therefore be the subject of any findings by the tribunal, in light of the Colman litigation, as set out above.
1.5 As a consequence of the foregoing, the following agreed issues, as set out in the agreed amended statement of issues were identified and confirmed, at the commencement of the hearing, namely:-
(1) Whether the respondent directly discriminated against the claimant on grounds of her association with a disabled person, namely her caring responsibilities for her disabled father, in the manner in which it treated the claimant, including dismissing her, having regard to the provisions of Section 3A(5), Section 4(2)(b) and Section 4(2)(d) of the Disability Discrimination Act 1995, as amended, and/or European Law, namely Article 2 of Council Directive 2000/78/EC?
(2) Whether the treatment complained of by the claimant, including her dismissal, amounted to harassment of the claimant on grounds of her association with a disabled person, namely her caring responsibilities for her disabled father, having regard to the provisions of Section 3B and Section 4(3)(a) of the Disability Discrimination Act 1995, as amended and/or European Law, namely Article 2(3) of Council Directive 2000/78/EC?
(3) Whether the treatment complained of by the claimant, including her dismissal, amounted to victimisation of the claimant, by reason that the claimant had done a protected act, having regards to the provisions of Section 55 of the Disability Discrimination Act 1995, as amended, and/or European Law?
(4) Has the respondent a relevant statutory defence, pursuant to the Disability...
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