Sloan vs Ministry of Defence,Brian Millar,Ian Brain,Chris Ireland,Lynn Smith,Colonel Frankland,David Laight,Colonel Piggott
| Jurisdiction | Northern Ireland |
| Judgment Date | 23 October 2019 |
| Docket Number | 04153/17IT |
| Court | Industrial Tribunal (NI) |
| Respondent | Ministry of Defence,Brian Millar,Ian Brain,Chris Ireland,Lynn Smith,Colonel Frankland,David Laight,Colonel Piggott |
THE INDUSTRIAL TRIBUNALS
CASE REFS: 4153/17
8553/17
5321/18
5703/18
CLAIMANT: Thomas Sloan
RESPONDENTS: 1. Ministry of Defence
2. David Laight
3. Lynn Smith
4. Colonel Piggott
5. Colonel Frankland
6. Brian Millar
7. Ian Brain
8. Chris Ireland
DECISION
The unanimous decision of the tribunal is that:
(1) The claims against the third-eighth named respondents are dismissed following withdrawal during the course of the substantive hearing.
(2) The claims of harassment are dismissed as they were no longer pursued by the claimant at hearing.
(3) The claims of breach of the Working Time Regulations (NI) 2016 and Working Time Directive are dismissed following withdrawal after the hearing.
(4) The first-named respondent did not breach the duty to make reasonable adjustments pursuant to the Disability Discrimination Act 1995 (as amended).
(5) The claims of direct disability discrimination are dismissed.
(6) The claims of unlawful victimisation are dismissed.
(7) The claims of breach of contract/unauthorised deduction from wages are dismissed.
CONSTITUTION OF TRIBUNAL
Employment Judge: Employment Judge Orr
Members: Mr I O’Hea
Mr M McKeown
APPEARANCES:
The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Thompsons NI.
The respondents were represented by Mr J Kennedy, Barrister-at-Law, instructed by Crown Solicitor’s Office.
1. BACKGROUND
1.1 At all relevant times, the claimant was employed by the first-named respondent as a driver in its Transport Support Unit (“TSU”) until his resignation (with notice) on 25 January 2018. The TSU operates across two depots in Northern Ireland providing scheduled and non-scheduled transport to military personnel. The claimant’s duties included transporting clients to and from various appointments.
1.2 In January 2016 and April 2016 the claimant had brought Industrial Tribunal proceedings claiming disability discrimination against the first-named respondent, the second-named respondent and a Mr MC. These claims were conciliated by the Labour Relations Agency in a signed agreement dated August 2016. The agreement included payment of compensation and signed apologies from the second-named respondent and Mr MC. It also put in place a number of agreed adjustments including the adjustment that the claimant takes issue with in these proceedings (see 1.3 (1) below).
1.3 The claimant presented four separate claim forms to the tribunal in which he made a number of claims. His specific allegations were as follows:
(1) breach by the first-named respondent of the duty to make reasonable adjustments and harassment arising from an alleged failure to implement an agreed adjustment (contained in clause 7 of the LRA agreement) “to ensure that any contact between Mr MC and the claimant is avoided altogether or reasonable steps taken to minimise such contact”;
(2) victimisation and harassment by the first-named respondent in the conduct and outcome of the claimant’s grievances (dated 4 May 2017, 17 October 2018 and 2 March 2018); and by reason of the contents of an email dated 20th October 2017;
(3) victimisation and breach of the duty to make reasonable adjustments by the first-named respondent by failing and/or delaying providing information/documentation requested by the claimant during the grievance processes;
(4) breach of the duty to make reasonable adjustments, by the first-named respondent, direct discrimination, victimisation and harassment by both the first and second-respondents in relation to the treatment of the claimant whilst on sick leave – specifically the change of line management, the operation of the Keeping in touch procedures and the imposition of a “no contact” policy/practice during his sickness absence;
(5) constructive unfair dismissal by the first-named respondent arising from all of the above, the final straw being the contents of the email dated 20th October 2017;
(6) breach of the duty to make reasonable adjustments by the first-named respondent in relation to the decision not to extend full pay during sickness absence; and
(7) unlawful deductions from wages, breach of the Working Time Regulations 2016/Working Time Directive and victimisation by the first-named respondent in not permitting the claimant to carry over accrued annual leave.
1.4 The respondents denied liability in respect of each and all of the claimant’s claims.
1.5 At various stages during the course of the substantive hearing the claimant withdrew his claims against the 3rd, 4th, 5th, 6th, 7th and 8th named respondents and they were dismissed as respondents to these proceedings.
1.6 Mr Potter confirmed to the tribunal at the commencement of his oral submissions that the claimant was no longer pursuing claims of harassment, accordingly the claims of harassment are dismissed.
1.7 The claimant’s representatives wrote to the tribunal, after the substantive hearing withdrawing the claims of breach of Working Time Regulations (NI) 2016 and breach of the Working Time Directive. These claims are also dismissed.
2. SOURCES OF EVIDENCE
2.1 The claimant gave evidence on his own behalf and Ms Joanne McWilliams (Regional Officer for Unite the Union) gave evidence on behalf of the claimant. Mr Morton’s written statement was submitted on behalf of the claimant however he was not called to be cross-examined. Mr Potter, on behalf of the claimant, accepted that little weight could be attached to the statement – specifically he addressed the tribunal stating “it is nothing if we don’t call the witness”; accordingly the panel disregarded the statement of Mr Morton on the basis that it was untested evidence.
2.2 On behalf of the respondents the following witnesses gave evidence:
- Mr Ian Brain - Motor Transport Warrant Officer for Lisburn and Aldergrove Stations.
- Mr Brian Millar - Driver Supervisor – Skill Zone 2.
- Mr David Laight – (second-named respondent) Reporting Officer for Skill Zone 2 Drivers in NI (at the relevant time).
- Mr Chris Ireland - Deputy Manager Transport Support Unit NI (at the relevant time).
- Lieutenant Colonel Frankland - Commanding Officer of the Northern Ireland Garrison Support Unit.
- Ms Lynn Smith – Irish Brigade Secretariat, 38 Irish Brigade.
- Mr John McCullagh - Head of Policy and Legacy, 38 Irish Brigade.
- Colonel James Piggott - Deputy Commander 38 Irish Brigade (at the relevant time).
2.3 Colonel Piggott, who was outside the jurisdiction, was cross examined via Skype on foot of a tribunal order of Employment Judge Drennan QC, by consent of the parties.
2.4 Ms Smith, the claimant and the second-named respondent, were recalled for further cross examination on 3 May 2019 after the service of supplementary witness statements.
3. REASONABLE ADJUSTMENTS
3.1 The following reasonable adjustments were put in place to ensure the claimant could participate effectively in the hearing and to ensure fairness to all the parties:
(i) the claimant had 15 minutes rest every 30 minutes during cross-examination;
(ii) the claimant could alert the tribunal and/or the representatives throughout when he required additional breaks and the timing of same;
(iii) the claimant was afforded additional breaks during cross-examination and re-examination when appropriate and necessary; and
(iv) the claimant’s solicitor provided assistance to the claimant throughout cross-examination in locating documents in the bundles.
4. ISSUES
4.1 Issues had been agreed between the parties during the Case Management Process and prior to the hearing. Further agreed legal and factual issues were presented to the tribunal on 3 May 2019. Neither...
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