Johnston vs Royal Group of Hospitals

CourtIndustrial Tribunal (NI)
Judgment Date19 June 2009
Docket Number00851/06IT
RespondentRoyal Group of Hospitals
FAIR EMPLOYMENT TRIBUNAL

THE INDUSTRIAL TRIBUNALS

CASE REF: 851/06

CLAIMANT: Jennifer Johnston

RESPONDENT: Royal Group of Hospitals and Dental Hospitals Health & Social Trust

DECISION

The unanimous decision of the tribunal is that:-

(1) The claimant was not discriminated against by the respondent on the ground of her disability, contrary to the Disability Discrimination Act 1995, as amended.

(2) The claimant was not discriminated against for a reason which related to the claimant’s disability, contrary to the Disability Discrimination Act 1995, as amended.

(3) The claimant was discriminated against by the respondent by the failure of the respondent to comply with its duty to make reasonable adjustments imposed on it in relation to the claimant, contrary to the Disability Discrimination Act 1995, as amended.

(4) The tribunal orders the respondent to pay to the claimant the sum of £3,133.00.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Members: Mr J Lyttle

Mr J Nicholl

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Equality Commission for Northern Ireland.

The respondent was represented by January J Dunlop, Barrister-at-Law, instructed by MSC Daly, Solicitors.

Reasons

1.1 The claimant presented a claim form to the tribunal on 4 July 2006, in which she made a claim against the respondent of unlawful discrimination, pursuant to the Disability Discrimination Act 1995, as amended (‘the 1995 Act’). The claimant also made a claim on the said claim form of unlawful discrimination pursuant to the 1995 Act against Queen’s University Belfast (‘the University’). The claim against the University was subsequently withdrawn by the claimant and, by a decision registered and issued to the parties on 23 January 2008, the claimant’s claim against the University was dismissed, following the said withdrawal.

1.2 By a decision on a pre-hearing review, registered and issued to the parties on 15 August 2007, the tribunal found that the claimant, who suffers from dyslexia, was a disabled person within the meaning of Section 1 of the 1995 Act.

1.3 The claimant’s claim, as set out in her claim form, related to her failure to be appointed by the respondent, following a recruitment and selection process, which took place in or about 2005/2006, for the post of a Paediatric Staff Nurse Grade D at the Royal Belfast Hospital for Sick Children, which hospital is part of the respondent. The respondent, in its response form, presented to the tribunal on 15 August 2006, denied liability and stated, inter alia, that the claimant’s dyslexia had no bearing on the decision not to appoint her to the said post; but related to the contents of a reference, which had been received by the respondent, in relation to her application for the said post.

1.4 In relation to her said claim, the claimant made a number of claims under the 1995 Act, which may be summarised as follows:-

(a) a claim of disability-related discrimination;

(b) a claim of direct disability discrimination; and

(c) a claim of a failure to make reasonable adjustments.

It will be necessary to consider the relevant statutory provisions under the 1995 Act, relating to each said claim, in more detail elsewhere in this decision.

1.5 At the conclusion of the hearing of this matter, the tribunal reserved its decision. Before the tribunal could issue its said decision, the House of Lords gave its judgment in the case of London Borough of Lewisham v Malcolm [2008] IRLR 700, which shall be referred to later in this decision. This decision has had considerable implications for the law relating to disability discrimination; and, in particular, in relation to a claim of disability related discrimination. It was agreed by the representatives, at a Case Management Discussion with the Chairman, following the said judgment of the House of Lords, and in light of the submissions already made by the representatives, that the tribunal should, in the circumstances, not issue its said decision; but rather it should allow the representatives to consider the said decision of the House of Lords and the implications thereof for the claimant’s claims against the respondent; and, before issuing its decision, the tribunal should give the representatives an opportunity to make further written and/or oral submissions to the tribunal in light of the said judgment – which opportunity both representatives subsequently exercised.

Following a further hearing in this matter to consider the judgment in London Borough of Lewisham v Malcolm, and before issuing its decision, the tribunal again became aware of the recent decision in the Employment Appeal Tribunal in the case of Eastern and Coastal Kent PCT v Grey [2009] IRLR 429 and also the recent decision of the Northern Ireland Court of Appeal in the case of SCA Packaging Ltd v Boyle [2009] IRLR 54. It was agreed by both representatives, at a Case Management Discussion with the Chairman, that these decisions were relevant to the tribunal’s decision in this matter in relation to the claimant’s claim of a failure to make reasonable adjustments and the issue of knowledge (to which further reference shall be made later in this decision); and that, having regard to the terms of the overriding objective, the tribunal should not issue its decision until both representatives had been given an opportunity to make further oral submissions, in light of the dicta set out in the said decisions – which opportunity both representatives subsequently exercised at a further hearing of the tribunal.

1.6 The tribunal heard oral evidence, on behalf of the claimant, from the claimant herself and Mr John Eakin, Chartered Educational Psychologist; and, on behalf of the respondent, from Alison Kearney, Barbara Carlisle, Brenda Creaney and Paula Forrest.

2.1 The tribunal having heard the said evidence and considered the written and oral submissions made to it by the representatives, made the following findings of fact, as set out in the following sub-paragraphs, insofar as relevant and material to the determination by the tribunal of the claimant’s said claims under the 1995 Act.

2.2 The claimant was born on 4 July 1980 and, as set out above, suffers from dyslexia, which had been found in a decision on a pre-hearing review registered and issued to the parties on 15 August 2007 to be a disability within the meaning of Section 1 of the 1995 Act. Thus, for the purposes of these proceedings, the claimant was, at all material times, a disabled person. After her ‘A’ Levels the claimant began a course in nursing at Canterbury University College; but, in September 2003, she transferred to Queen’s University Belfast (‘the University’) to study for a qualification in children’s nursing, joining the course in the second year. At that time, she was in contact with the disability services of the University and, after assessment by the said services, was given support with her studies in relation to her dyslexia. Her University tutors were made aware of her dyslexia and measures were put in place to help her meet her academic requirements. In addition, as part of her course, she was required to take part in practical placements, as part of her training, at various medical establishments in Northern Ireland. The claimant’s dyslexia did not cause her any particular difficulty on any such placement until her final placement, which took place at Altnagelvin Hospital, Londonderry, in or about May 2005. At that final placement, issues were raised by her mentor, a nurse at the said hospital, with regard to her handwriting under pressure. Having informed her mentor of her dyslexia, the claimant was given further time to carry out any writing that she was required to do in the course of her work on the said placement. A further issue was raised during her said placement, in or about June 2005, regarding the documentation of time on an observation chart by the claimant; and, as a consequence, Ms Orla McAlinden, the claimant’s link lecturer at the University, was so informed. The final clinical assessment of the claimant was postponed to allow the above issues, raised by the staff at Altnagelvin Hospital, to be addressed in conjunction with the University. As a consequence, the claimant, at her final clinical assessment, was required to exhibit her competencies in relation to spelling, drug chart reading, dose calculation and to demonstrate an ability to write clearly. The claimant was...

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