Downie vs Department for Social,Jenny Mullan,Deborah Daly,Gary Craig
| Judgment Date | 08 December 2015 |
| Respondent | Jenny Mullan,Deborah Daly,Gary Craig,Department for Social |
| Docket Number | 01050/14IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REFS: 1050/14
2443/14
CLAIMANT: Rebecca Downie
RESPONDENTS: 1. Department for Social Development
2. Jenny Mullan
3. Deborah Daly
4. Gary Craig
DECISION
The unanimous decision of the tribunal is that the claimant’s claim for direct disability discrimination is dismissed; that the first respondent had failed to make reasonable adjustments for the claimant and that the first respondent has victimised the claimant pursuant to Section 55 of the Disability Discrimination Act as amended, and the tribunal awards the claimant compensation of £10,000.
Constitution of Tribunal:
Employment Judge: Employment Judge Greene
Members: Mr B Hanna
Mr H Stevenson
Appearances:
The claimant was represented by Mr G Grainger, of counsel, instructed by Worthingtons Solicitors.
The respondents were represented by Mr J Kennedy, of counsel, instructed by the Departmental Solicitors Office.
SOURCES OF EVIDENCE
- For the claimant the tribunal heard from the claimant herself, Aidan Molyneaux and Pauline Scott. On behalf of the respondents the tribunal heard from Deborah Daly, Jenny Mullan, Trevor Patterson, Helen Campbell, Gary Craig and Barry Mulligan. The tribunal also received eight bundles of documents comprising 472 pages; written submissions; and a number of legal authorities
THE CLAIM AND DEFENCE
- The claimant claimed that she had been discriminated against on the grounds of her disability; that the respondents had failed to make reasonable adjustments for her as a disabled person; and that she had suffered victimisation contrary to the Disability Discrimination Act 1996, as amended. The respondents disputed the claimant’s claims in their entirety
THE ISSUES
3. (1) The agreed issues for determination were as follows:-
Legal Issues
(i) Whether or not the claimant was treated less favourably on the grounds of her disability contrary to Article 3A(5) of the Disability Discrimination Act 1995?
(a) And, was the comparator treated differently or would have been?
(ii) Whether or not the respondents failed to make reasonable adjustments contrary to Article 3A(2) of the Disability Discrimination Act 1995?
(a) And, was the comparator treated differently or would he/she have been?
(b) And, can the respondents justify any failure?
(iii) Was the claimant discriminated against by away of victimisation contrary to the Disability Discrimination Act 1995 as amended?
Factual Issues
(iv) What is the first respondent’s policy on inefficiency?
(v) What, if any, are the respondents’ procedures when considering when to issue warnings where a bereavement has occurred when the decision to issue occurred before the bereavement?
(vi) What is the claimant’s absence record?
(vii) What period(s) of absence were taken into account when considering inefficiency action?
(viii) What factors were taken into account when deciding whether or not to issue a written warning, including, if relevant, the claimant’s anxiety?
(ix) Why was the claimant issued with a written warning?
(x) What factors were taken into account when deciding upon the outcome of the appeal, including, if relevant, the claimant’s anxiety?
(xi) Why was the appeal not upheld?
(xii) What are the circumstances of the relevant comparator(s) for disability discrimination?
(xiii) What adjustments were made, if any?
(a) And, were these adjustments reasonable and sufficient?
(xiv) What were the reasons for the claimant’s treatment so far as it relates to justifying matters which could otherwise constitute discrimination as applicable?
(xv) What loss or injury to feelings has the claimant sustained?
(xvi) What was the effect of any unlawful discrimination upon the outcome of the processes about which complaints have been made?
Remedy
(xvii) If the claimant has been discriminated against what award should be made for:-
(a) Injury to feelings, and;
(b) Loss.
(xviii) Whether the exchanges between the claimant and the fourth respondent, Gary Craig, on 5 September 2014 constituted victimisation of the claimant by reason that she had done a protected act, namely by making a complaint of unlawful discrimination and by presenting a claim to the tribunal under the provisions of the Disability Discrimination Act 1995 as amended?
(xix) If this claim is upheld to what remedy is the claimant entitled?
(2) It is accepted by the respondents that the claimant is a disabled person for the purposes of the Disability Discrimination Act 1995 as amended.
FINDINGS OF FACT
- (1) The claimant began working for the Department of Social Development (DSD) (first respondent) on 7 July 2008 as an administrative officer. Apart from eight weeks from July to September 2014, within the Human Resources Directors’ office, she has worked exclusively within the Equal Opportunities Unit in the Human Resources Division. The DSD (first respondent) is the single biggest department in the Northern Ireland Civil Service with almost 25% of the total civil service staff.
(2) Jenny Mullan (second respondent) is an EO1 within DSD (first respondent). Since August 2013 she has managed sickness absences within the DSD’s (first respondent) core departments and has made decisions on appeals from written warnings and final written warnings. From 27 August to 15 December 2013 she managed the claimant’s sickness absence.
(3) Deborah Daly (third respondent) is an EO2 within DSD (first respondent) and has worked in the Attendance Management Unit (AMU) since 2000. Her role is to apply the Inefficiency Sickness Absence Policy and, in circumstances where review trigger points have been reached under the policy as a result of sickness absence, to decide if inefficiency action is appropriate.
(4) Gary Craig (fourth respondent) is a staff officer within the DSD’s (first respondent) Human Resources Division. He was the claimant’s line manager from 1 August to 5 September 2014.
(5) It is common case that the claimant is an excellent worker and she has on a number of occasions acted up as EO2 and EO1.
(6) From childhood the claimant has suffered from an active and severe form of Crohn’s disease. The disease is incurable and the claimant suffers from periodic flare-ups. Some of the prescribed medication can leave the claimant susceptible to other infections. The DSD (first respondent) and the AMU are aware of her condition.
(7) From May 2009 the DSD (first respondent) had put in place for the claimant the following three reasonable adjustments;-
(a) that she is seated in close proximity to the toilets, and
(b) that she have additional time off work to attend doctor’s appointments when necessary, and
(c) that she is restricted from lifting excessively heavy loads due to previous abdominal surgeries.
In November 2011 as a reasonable adjustment a written warning was not issued by the DSD (first respondent).
(8) In 2009 the claimant was off work for gastrointestinal problems for 42 days on two occasions. She was off work for gastrointestinal problems for 20 days on two occasions in 2011 for which Deborah Daly (third respondent) decided that she would not issue to the claimant a written warning by way of a reasonable adjustment and no inefficiency action was taken. From 27 February to 1 March 2013 she was off work for gastrointestinal problems for three days but no inefficiency action was taken against her by way of a reasonable adjustment. This latter absence is not the subject of the inefficiency warning...
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