O'Neill vs Department for Social
| Jurisdiction | Northern Ireland |
| Judgment Date | 07 August 2012 |
| Respondent | Department for Social |
| Docket Number | 01922/11IT |
| Court | Industrial Tribunal (NI) |
THE INDUSTRIAL TRIBUNALS
CASE REF: 1922/11
CLAIMANT: Margaret Mary O’Neill
RESPONDENT: Department for Social Development
DECISION
The unanimous decision of the tribunal is as follows:
(A) The respondent unlawfully discriminated against the claimant by failing to make a reasonable adjustment in respect of transfer. It is ordered that the respondent shall pay to the claimant the sum of £7,500 in respect of that discrimination.
(B) None of the other claims is well-founded. Accordingly, all of those other claims are dismissed.
Constitution of Tribunal:
Chairman: Mr P Buggy
Members: Ms E Gilmartin
Mr J Magennis
Appearances:
The claimant was represented by Mr S Mearns, Solicitor.
The respondent was represented by Mr A Sands, Barrister-at-Law, instructed by the Departmental Solicitors Office.
REASONS
1. In her claim form, the claimant identified the respondent as the Child Support Agency. However, the Agency is a constituent part of the Department for Social Development and the title of these proceedings has been altered accordingly.
Some key legislative provisions
2. This claim is brought under the Disability Discrimination Act 1995 (“the Act”).
3. Section 4(2) of the Act makes it unlawful for an employer to discriminate against a disabled person whom it employs:
“(a) in the terms of employment which [it] affords him;
(b) in the opportunities which [it] affords [her] for … a transfer, … or receiving any other benefit;
(c) by refusing to afford [her], or deliberately not affording [her], any such opportunity; or
(d) … subjecting [her] to any other detriment”.
4. Section 4A imposes a duty upon an employer to make adjustments. Specifically, where “a provision, criterion or practice applied by or on behalf of an employer” places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for it to have to take in order to prevent the provision, criterion or practice from having that effect.
5. In the context of Section 4, the term “discriminate” refers to discrimination within the meaning of the Act. For the purposes of the Act, there are four types of discrimination. One of those types of discrimination (victimisation discrimination) is irrelevant in the context of this case. The other three types of discrimination are relevant. They are as follows:
(1) Disability-related discrimination,
(2) direct disability discrimination and
(3) discrimination which consists of a failure to comply with the Section 4A duty to make reasonable adjustments.
Background facts
6. The claimant lives in Knockloughrim, near Magherafelt. At all material times, she has been employed in the Child Support Agency at Great Victoria Street, Belfast. She is an administrative officer. Her work mainly involves dealing with telephone enquiries. She is a Northern Ireland civil servant. The parties agree that, for the purposes of this litigation, she should be regarded as being an employee of the respondent Department. She has been employed in the CSA since September 2004. The parties agree that, since 2009, the claimant has been a disabled person, because she suffers from rheumatoid arthritis.
7. She was absent from work because of sickness for a very lengthy period in 2006 and 2007. (That absence was caused by ill-health which is unrelated to the disability which is relevant for the purposes of the present litigation). Because of her rheumatoid arthritis, she again was absent from work from 7 September 2009 until 22 February 2011. (That is “the relevant absence” in the present context). At all material times, the relevant absence was covered by sick notes, from one or other of the GPs in the local health centre which she attends. Throughout the relevant absence, the respondent’s own occupational health advisors were satisfied that the absence was appropriate, on account of her rheumatoid arthritis. The respondent’s occupational health advisors advised that adjustments should be made for the claimant, to lessen the disadvantages arising from her disability. The recommended adjustments consisted of the provision of a special chair, and a transfer (to a workplace nearer her home).
8. In January 2011, the respondent began to consider the likelihood of the claimant remaining in her employment. A meeting took place between the claimant and Mr Martin Keenan, of the respondent’s Attendance Management Unit, on 10 February 2011. At that meeting, the claimant was, in essence, told that, if she did not soon return to work, she would be dismissed. The claimant did return to work, on 22 February 2011. She returned, even though her GP had not certified her as again being fit for work, and even though the respondent’s occupational health advisors had not advised that she was fit for work. On 24 March 2011, the claimant was interviewed by the respondent’s Ms Rosemary Lynas. Subsequently, on 11 May 2011, Ms Lynas issued the claimant with a written warning in respect of attendance. The claimant appealed against that written warning, on 18 May 2011. The appeal was decided by Mr Brian McAleenan of the respondent’s Attendance Management Unit. He did not uphold the appeal.
9. The claimant did not return to work on a full-time basis. Instead, because of her disability, she returned on a reduced-hours basis. For the same reason, she currently works on a reduced-hours basis, and has worked on such a basis ever since her return.
The acts complained of
10. During the course of these proceedings, the list of acts complained of (the acts in respect of which remedies are sought) has been refined and modified. Those acts now are as follows:
(1) The claimant asserts that no suitable chair was provided for her until 31 May 2011.
(2) The claimant complains that the respondent did not promptly notify her of the availability of the “Access to Work Scheme”. (See below).
(3) The claimant complains in respect of the failure of the respondent to transfer her to a workplace nearer her home.
(4) The claimant says that she ought not to have been issued with the warning in respect of attendance, in view of the failure of the respondent to draw her attention to the Access to Work Scheme at a much earlier stage, and in view of the respondent’s failure to provide her with a timely work-transfer.
The claims and the defences
11. The claimant says that the chair non-provision was a failure to make a reasonable adjustment; that the scheme non-notification was also a failure to make a reasonable adjustment; and that the transfer failure was also a failure to make a reasonable adjustment. She also says that the transfer failure constituted disability related discrimination. Our understanding is that the claimant asserts that the respondent’s behaviour in relation to the warning constituted disability related discrimination and/or direct disability discrimination.
12. The respondent’s defences can be summarised as follows:
(1) The respondent says that, from the time of the claimant’s return to work, a suitable chair was in fact available for her, on the floor on which she worked, and that she only had to ask, and that chair would then have been pointed out to her.
(2) The respondent says that any failure to provide the claimant with information regarding the availability of the Access to Work Scheme does not constitute treatment which falls within the scope of Section 4(2) of the Act and that, in any event, it does not relate to a provision, criterion or practice, applied by or on behalf the respondent (in the sense in which those expressions are used in the context of Section 4A of the Act). Accordingly, the position of the respondent is that any failure to provide timely information to the claimant regarding the availability of the Scheme is a failure which falls outside the scope of the provisions of the Act which deal with unlawful discrimination.
(3) The respondent says that it has done all that it can reasonably be expected to do, with a view to facilitating a transfer of...
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