Harbinson vs Hovis Ltd
| Jurisdiction | Northern Ireland |
| Judgment Date | 01 June 2021 |
| Docket Number | 22996/19it |
| Court | Industrial Tribunal (NI) |
| Respondent | Hovis Ltd |
THE INDUSTRIAL TRIBUNALS
CASE REF: 22996/19
CLAIMANT: Robert Harbinson
RESPONDENT: Hovis Ltd
JUDGMENT
The unanimous decision of the tribunal is that the claimant’s claims that he was discriminated against
(i) on grounds of his disability (direct discrimination); and
(ii) by reason of the failure by the respondent to make a reasonable adjustment contrary to Section 4A of the Disability Discrimination Act 1995;
are not well founded and are dismissed.
The claimant’s claim of unauthorised deduction from wages is dismissed as it was not pursued at the hearing.
Constitution of Tribunal:
Employment Judge: Employment Judge Gamble
Members: Mr S Pyper
Mr I Foster
Appearances:
The claimant was represented by Mr R Cushley, Barrister-at-Law, instructed by John Boston and Company Solicitors.
The respondent was represented by Mr B Mitchell, Barrister-at-Law, instructed by Steeles Law Solicitors Ltd.
BACKGROUND
- The claimant presented a claim for disability discrimination and unlawful deduction of wages to the tribunal on 10 October 2019. The claim recounted the events which gave rise to his claim. The claimant was not legally represented when he presented his claim
- The respondent presented a response, resisting the claimant’s claims on 3 December 2019. The response asserted that it was “entirely unclear as to the nature of this claim as it is wholly unparticularised.”
- The respondent admitted in the ET3 response that
(i) the claimant’s condition of bilateral calcification bursitis of the shoulders amounts to a disability for the purposes of the Disability Discrimination Act 1995 (“the 1995 Act”) (see paragraph 6.2.32 of the response); and
(ii) it was under a duty to make reasonable adjustments to accommodate the claimant’s disability (see paragraph 6.2.35 of the response).
- The respondent denied in the ET3 response that the claimant had been subject to direct discrimination on grounds of the claimant’s disability, for a reason related to his disability and that the respondent had failed in its duty to make reasonable adjustments. The respondent also resisted the claimant’s claim for unauthorised deduction from wages
AGREED FACTS
- The claimant has a shoulder condition for which he had been receiving treatment for two years prior to the period in question. He has been diagnosed with Bilateral Calcific Bursitis. A series of adjustments were put in place in respect of the claimant’s substantive role prior to the events which gave rise to this claim.
- In January 2019, the claimant was referred to an Occupational Health Physician by the Company nurse. This appointment did not take place until 4 July 2019. The claimant was off work when this appointment with the Occupational health Physician, Dr Hamilton, took place, due to a flare up of his condition. There was a delay in the issue of Dr Hamilton’s report, which was not received by the respondent until the 22 August 2019, when the claimant’s Fit Note and expired and he had returned to his substantive role for a number of weeks. In his report, Dr Hamilton, raised concerns that whenever the claimant was able to return to work that the nature of the duties described in his role, even with restrictions and adjustments in place, was likely to cause aggravation of his shoulder condition and lead to recurrent episodes of sickness absence. Dr Hamilton suggested that the possibility of redeployment of the claimant to a job that did not involve repetitive movement of the shoulders should be explored. The claimant returned to work on 18 July 2019, and continued in work until 22 August 2019, when he was suspended from work on medical grounds by the respondent, following receipt of Dr Hamilton’s report by the respondent.
- There was a series of meetings between the respondent and the claimant, namely on 5 September 2019, 10 September 2019 and 4 October 2019. There was also an exchange of correspondence between the claimant and respondent. During these meetings and in this correspondence, the issue of the claimant’s pay was raised on a number of occasions:
(i) In a letter dated 29 August 2019 which stated “As the OHP report has stated that you are not fit in your current role, with the current amendments, and to date there is (sic) no suitable alternatives, then you will have no option but to report as sick from today’s date”;
(ii) at a meeting on 5 September 2019 when it was minuted that Mr Declan Lavery (the respondent’s Operations Manager at its site at Apollo Road, Belfast) told the claimant that he would “be paid until Tuesday but you need to get a sick line in.” and L.A. (from the respondent’s HR) was unable to confirm if the claimant would “get paid for this”;
(iii) in a letter dated 9 September 2019, confirming the outcome of the meeting on 5 September 2019, in which Mr Lavery stated: “Finally, I advised that until the meeting takes place with occupational health on the task-based assessments, the company would continue to pay your normal pay. I must point out however, should the tasks be assessed by Occupational Health and she does not deem any suitable (not to exacerbate your shoulder injury) and all other avenues of redeployment have been explored, then the business will may (sic) not be able to continue to pay you as normal. In this event, you will be invited, in writing to meet formally with us to discuss the outcome of the task assessment, and will have the opportunity to be supported by Laura. You will then be required to attend your GP practice in order to get a sick line, as you are not fit for the job you were employed to do or any other temporary alternative redeployment”;
(iv) in a letter dated 14 September 2019 from Mrs Fiona McKenzie (the respondent’s HR Manager responsible for the Belfast site) which stated “Finally, at present, your pay will remain unchanged. I must point out however, should we be unable to identify any suitable (not to exacerbate your shoulder injury) roles, then the business will not be able to continue to pay you as normal. You will then be required to attend your GP practice in order to get a sick line, as you are not fit for the job you are required to do or any other temporary alternative employment”; and
(v) at a meeting dated 4 October 2019, extracts from minutes “OK salary should have remained unchanged however, and why we are here, as a business we feel we have explored all jobs and unfortunately full pay will stop after today…”.
It is common case that a number of production roles were considered and assessed for the claimant to be redeployed to. However, no alternative production role which would have been suitable for the claimant was identified initially. During this period, there was ongoing consideration of the issue of the claimant’s pay leading up to a meeting on 4 October 2019, when his pay was discussed. The tribunal’s finding in respect of this meeting is set out at paragraph 91 below. Despite the outcome of the meeting on 4 October 2019, the claimant’s pay was not stopped and he continued to receive his full pay, without interruption. This was communicated to the claimant by letter dated 15 October 2019, emailed to the claimant on 17 October 2019. This letter set out the conditions on which the claimant would continue to receive full pay.
- Following a further assessment by the Occupational Health Physician on 31 October 2019, the claimant returned to his substantive role as a Production Operative on the pancake line on 21 November 2019.
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