McErlean vs Northern Health & Social Care
| Judgment Date | 17 June 2014 |
| Respondent | Northern Health & Social Care |
| Docket Number | 01268/13IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 1268/13
CLAIMANT: Anthony McErlean
RESPONDENT: Northern Health & Social Care Trust
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent; that the claimant was disabled for the purposes of the Disability Discrimination Act 1995 and that the respondent failed in its duty to put in place reasonable adjustments.
The tribunal orders the reinstatement of the claimant on the terms set out in this decision and orders that the respondent should pay the claimant £12,000.00 as injury to feelings compensation.
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Mr P Killen
Mr A White
Appearances:
The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by Worthingtons, Solicitors.
The respondent was represented by Ms S Bradley, Barrister-at-Law, instructed by Chief Legal Adviser of the Regional Business Services Organisation.
Background
1. The claimant had been a community mental health nurse employed by the respondent providing services in the community, including services delivered in patients’ homes, to those suffering from mental ill-health.
2. The claimant was detained in a PSNI Station on 14 April 2012 following a complaint from his wife that he had assaulted her and had threatened her with a legally held firearm. The claimant’s wife did not make a formal written complaint and did not make a formal written statement. The claimant was released without charge after a brief period. There was no prosecution.
3. The incident was investigated by the respondent. Following disciplinary proceedings, which were upheld on appeal, the claimant was dismissed summarily for misconduct on 16 April 2013.
4. The claimant lodged a claim of unfair dismissal on 3 July 2013. At that stage he was not legally represented.
5. At a Case Management Discussion on 21 August 2013, the claimant sought to amend that claim to include an additional claim of disability discrimination contrary to the Disability Discrimination Act 1995. He alleged that he had been, at all relevant times, disabled for the purposes of that Act. He alleged that he had had a depressive illness and had suffered a psychotic episode at the time of the incident in April 2012. At that stage, and indeed up to the submissions hearing on 2 June 2014, the respondent argued that this had not been the case. The claimant further alleged that the respondent had failed to make reasonable adjustments in relation to that disability as required by the 1995 Act. The claim was subsequently amended, by consent, to include a claim that the respondent had failed to make reasonable adjustments contrary to the 1995 Act. Disability was not accepted by the respondent and it argued, in any event, that it had not been in breach of any statutory duty.
6. The issues for determination were identified at a further Case Management Discussion on 24 October 2013. Basically, they were:-
“(i) Was the claimant disabled for the purposes of the 1995 Act during all or any of the relevant times?
(ii) Did the respondent fail to make reasonable adjustments as required by the 1995 Act?
(iii) Was the claimant unfairly dismissed for the purposes of the Employment Rights (Northern Ireland) Order 1996?
(iv) If appropriate, what was the remedy to be afforded to the claimant?”
7. In his claim form, the claimant sought an Order for Re-engagement, ie that he should be re-employed and receive compensation. It was however made plain by the claimant, in his additional oral evidence-in-chief, given at the start of the hearing, that he was seeking a return to his old job; ie a reinstatement order. The respondent was offered the chance to call additional evidence in this respect at the submissions hearing on 2 June 2014 or, if it wished on 6 June 2014 when the panel would be available. The respondent did not avail of this opportunity.
8. The respondent ultimately conceded unfair dismissal but argued that the claimant should not be reinstated or re-engaged; it continued to defend the disability discrimination claim.
Relevant law
Unfair dismissal
9. Tribunals must approach with particular care any claim that includes not just a claim of unfair dismissal but, in addition a claim of unlawful discrimination. Further problems can occur where there may be an issue of contributory conduct.
In London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220 the Court of Appeal stated at Paragraph 46:-
“Mr Marsh spoke of his experience that employment tribunals often structure their reasons by setting out all their findings of fact in one place and then drawing on the findings at the later stage of applying the law to the relevant facts. It is not the function of appeal courts to tell trial tribunals and courts how to write their judgments. As a general rule, however, it might be better practice in an unfair dismissal case for an employment tribunal to keep its findings on that particular issue separate from its findings of disputed facts that are only relevant to other issues, such as contributory fault, constructive dismissal and increasingly, discrimination and victimisation claims. Of course some facts would be relevant to more than one issue, but the legal elements of the different issues, the role of the employment tribunal and the relevant facts are not necessarily all the same. Separate and sequential findings of fact on discrete issues may help to avoid errors of law, such as substitution, even if it may lead to some duplication.”
The difficulty is of course lessened when unfair dismissal is conceded but it is important that the tribunal approaches the separate complaints of unfair dismissal and unlawful discrimination carefully.
10. The proper approach for an industrial tribunal to take when considering the fairness of a misconduct dismissal is well settled and was recently considered by the Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47.
11. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-
“130
(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –
(a) the reason (or if more than one, the principal reason) for the dismissal and
(b) that is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) a reason falls within this paragraph if it –
(b) relates to the conduct of the employee,
(4) where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and
(b) shall be determined in accordance with equity and the substantial merits of the case.”
12. The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin v Citybus Ltd [2008] NICA 42 where the Court held:-
“(49) The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley v Post Office and HSBC Bank Plc (formerly Midland Bank) –v- Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR111.
(50) In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-
“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to...
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