Goreczna vs David Currie and Pamela
| Jurisdiction | Northern Ireland |
| Judgment Date | 06 November 2015 |
| Respondent | David Currie and Pamela |
| Docket Number | 01241/14IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 1241/14
CLAIMANT: Aleksandra Goreczna
RESPONDENTS: David Currie and Pamela Currie, t/a Currie’s Spar
DECISION
The unanimous decision of the tribunal is that
(1) The claimant was automatically unfairly dismissed by the respondents on or about 5 May 2014;
(2) The respondents are ordered to pay the claimant the sum of £4,809.25 as set out at paragraph 65 below by way of compensation for unfair dismissal;
(3) The claimant was a disabled person within the meaning of Section 1 of the Disability Discrimination Act 1995 as at 28 April 2014; and
(4) The respondents did not unlawfully discriminate against the claimant in dismissing her for incapacity in May 2014 and the claimant’s claim of disability discrimination is dismissed.
Constitution of Tribunal:
Employment Judge: Employment Judge McCaffrey
Members: Mr F Murtagh
Mr I Foster
Interpreter: The interpreter to the tribunal was Mr Marck Mazur.
Appearances:
The claimant was represented by Ms M C Campbell, Barrister-at-Law, instructed by Patrick Park Solicitors.
The respondents were represented by Mr K Smith, Consultant.
ISSUES
1. This was a claim of unlawful disability discrimination and unfair dismissal. The main issues for the tribunal to decide were as follows:-
(1) Was the claimant dismissed from her employment with the respondents on or about 28 April 2014 (or some other date) or did she resign?
(2) If the claimant was dismissed, did the respondents follow the Statutory Disciplinary and Dismissal Procedures?
(3) If the respondents did not follow the Statutory Disciplinary and Dismissal Procedures, was the claimant automatically unfairly dismissed?
(4) If the claimant was unfairly dismissed, is she entitled to compensation and if so how much?
(5) Should any award of compensation be increased to take account of any failure by the respondents to follow the Statutory Disciplinary and Dismissal Procedure?
(6) Should any award of compensation for unfair dismissal to the claimant be reduced in accordance with the Polkey decision to take account of the likelihood that the claimant would have been dismissed had the correct statutory dismissal procedures been followed?
(7) Was the claimant a disabled person within the meaning of Section 1 and Schedule 2 of the Disability Discrimination Act 1995 (as amended) (“the 1995 Act”)?
(8) Did the respondents discriminate against the claimant on grounds of her disability in dismissing her from her employment on 28 April 2014 (or on some other date)?
(9) If so, is the claimant entitled to compensation for injury to feelings and if so, how much?
FACTS
2. We received witness statements and heard evidence from the claimant, from her husband Lukasz Goreczny and from Dr Bernadette Salisbury, Clinical Psychologist on behalf of the claimant. We also received witness statements and heard evidence from Mrs Pamela Currie (one of the respondents), from Keith Smith, an HR representative who was also the respondents’ representative and from Peter Nedvelcev, a supervisor working for the respondents.
3. At the outset of the hearing, the claimant’s representative also asked to have a written statement produced by the claimant’s GP, Dr Paul McGarvey and attached letters admitted under the Civil Evidence (Northern Ireland) Order 2003. The claimant’s representative was asked why Dr McGarvey was not available to give evidence and her reply was that he was a busy GP. It was pointed out to her that there was a witness order procedure. She indicated that a witness order had not been sought and apparently no effort had been made to secure Dr McGarvey’s attendance. Mr Smith indicated that the medical evidence was not agreed, but he wished to refer to Dr McGarvey’s report and some of the correspondence attached to it in his cross-examination of Dr Salisbury. We were also conscious that, because the claimant’s representatives had failed to notify the Office of the Tribunals in advance that Dr McGarvey would not be attending, Dr McGarvey’s statement had been read by the panel along with all the others. Accordingly it was the decision of the tribunal that we would admit
Dr McGarvey’s statement and the letters attached to it, but emphasised to Miss Campbell we could give very limited weight to Dr McGarvey’s statement as it was not evidence under oath. We also made it clear that this approach was totally unacceptable as far as we were concerned and that in future, representatives should ensure that the tribunal was advised in advance of the reading time if a witness would not be available. This would avoid a situation where the tribunal had already read a statement, believing that the witness concerned would be available to prove his or her statement and to be cross-examined.
4. We note that Dr McGarvey’s report specifically states that he is a General Practitioner working within the practice and is not a disability expert. He also notes that the claimant was seen by his colleague Dr Clarke and by doctors in the surgery in May, July, September and December 2014. He does not state the level of his involvement in the claimant’s care. He states as his view that one definition of disability is “a physical or mental condition that limits a person’s movement, senses or activities”. He states in his report, “Given this definition she definitely would have been disabled from the accident in December 2014 for at least one year”. The doctor’s definition of disability however is not that set out in the Disability Discrimination Act 1995, he acknowledges he is not an expert in disability and he does not set out in detail the ways in which the claimant meets the statutory definition of disability in the 1995 Act. Accordingly we consider that we must give little weight to Dr McGarvey’s report.
5. During the hearing, Ms Campbell referred us to a document headed “Agreed Statement of Factual Issues”, which she asserted was an agreed statement of facts in the case. She sought to cross-examine Mr Smith on alleged inconsistencies between matters in his witness statement and in the “Factual Issues” document. Mr Smith said that the document was a Statement of Factual Issues to be determined by the tribunal and the matters in it were not agreed as facts by the respondents. Ms Campbell referred to an email from Mr Smith to her instructing Solicitor in which she said he indicated he was content with the “new draft”. We did not see this email during the hearing. It was pointed out to Ms Campbell that the content of the document and its heading were consistent with it being a statement of factual issues rather than an agreed statement of facts. Secondly, the document had not been opened to us at the start of the hearing as an agreed statement of facts, and thirdly, we questioned why we were hearing evidence on all issues if the main facts of the case were agreed.
6. Despite this, Ms Campbell attempted to introduce evidence of the content of Mr Smith’s email in her written submissions submitted after the end of the hearing. She also “directed” the tribunal to the respondents’ replies to a request for additional information in the broadest terms in her submissions. We record that we were referred to these replies only twice in the course of the hearing: once in relation to the identity of the staff present and who heard the conversation between the claimant and Mrs Currie referred to at paragraphs 11 and 12 below and secondly, in cross-examination of Mr Smith, in relation to the date the claimant’s employment ended. We consider it quite inappropriate and unacceptable for a legal representative (who should know better) to try and introduce evidence not led during the hearing by the back door in her submissions. On the basis of the evidence before the tribunal, and the documents opened to us, we make the following findings of relevant facts.
7. The claimant worked for the respondents as a Sales Assistant from 29 July 2012 until the end of April or beginning of May 2014. Her wages were £280.00 per week gross, £230.00 per week net. We return to the date of termination of her employment later. The claimant...
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