THE INDUSTRIAL TRIBUNALS 

CASE REF:	131/07

CLAIMANT:	Irvine Sean Palmer		

RESPONDENT:	The Social Security Agency		

DECISION

The unanimous decision of the tribunal is that the claimant was subjected to discrimination by his employer, the respondent, as a result of his disability. This discrimination related to the sickness absences of the claimant and the fact that the respondent failed to make adequate reasonable adjustments to its procedures in dealing with that part of the absence from work which was as a result of disability. Compensation of £2960.16 is awarded as set out below.

Constitution of Tribunal:

Chairman:			Mr Cross		

Panel Members:		Mr Devlin
				Mr Gray

Appearances:

The claimant was represented by Mr Michael Potter Barrister-at-law instructed by the Equality Commission. 

The respondent was represented by Mr Peter Coll Barrister-at-Law instructed by the Departmental Solicitor’s Office.

Evidence  
	     
The tribunal was furnished with witness statements and heard the evidence of the claimant and for the respondent, Ms Scott, Ms McKinley, Ms Graham, Ms Ternan and Ms McDougall

Findings of Fact

1.	The claimant is employed by the Northern Ireland Civil Service and was, at the time of the events the subject of this claim, and is currently, working in the Enniskillen office of the respondent. He was at all times subject to the employment conditions set out in the Staff Handbook of the Northern Ireland Civil Service (hereinafter “NICS”).

2.	The claimant unfortunately suffers from a disability, namely Depression, which was diagnosed in May 2000. The respondent realises that the claimant has a disability as defined in the Disability Discrimination Act 1995 (hereinafter “the DDA”). 

3.	The claimant, as a result of his disability, was absent from his work for a number of weeks in September/October 2004. As a result of this absence, his managers in the office in which he was then working, the Department for Employment and Learning (hereinafter “DEL”), issued him with a written warning on 23 February 2005 in respect of his sickness absence. This was because his absence from work had been for a period of days, which, under the employer’s Disciplinary Code, triggered an automatic written warning. The claimant appealed against that warning and explained to Patricia McAuley, the officer hearing the appeal, that he did indeed suffer from clinical depression. As a result of this and supporting medical evidence the written warning was withdrawn. In the e-mail, dated 5 September 2005,  which was sent by Patricia McAuley of DEL to the claimant’s line manager at the time, Mr O’Neill, Ms McAuley said that she was allowing the appeal, she further advised as follows:-

“Mr Palmer’s condition means that he is considered to be disabled within the meaning of the Disability Discrimination Act 1995. Under the DDA an employer is not required to exclude or ignore absences (for monitoring purposes) that are related to a disability, however, the employer is required to make appropriate, reasonable adjustments to assist an employee who is considered to be disabled within the meaning of the DDA. It is my opinion that the Department has taken account of Mr Palmer’s condition through a less rigorous application of the absence triggers specified in CSC 7/04”
“Mr Palmer’s attendance will continue to be monitored in line with CSC 7/04 and consideration will be given to the issue of a warning in future if necessary.”

On 18 August 2005, a report of a disability evaluation, which had been carried out on the claimant, was sent to Mr O’Neill by Ms Geraldine Rocks of the DEL Personnel Branch. Ms Rocks stated “Please note that OHS have not recommended any specific adjustments to be made. However, OHS did comment “at times attendance at work may be affected.””  

4.	Between 23 January 2006 and 12 May 2006 the claimant was absent from his work, by that time with the respondent Agency to whom he had transferred prior to January 2006. This lengthy absence was as a consequence of the claimant’s disability. On his return to work the claimant had a work resumption interview and on the same day a cause for concern interview. Each interview conducted by his line manager Ms Tracey.

5.	These interviews were conducted in accordance with the NICS Personnel Branch guidelines PBC 05/04 entitled “Managing Attendance”, (hereinafter called “PBC 05/04”). This document lays down that a work resumption interview must be held immediately on the employee’s return to work, no matter how long or short the absence. The line manager is also directed by the same guidelines to consider conducting a cause for concern interview if the line manager considers that a trigger point for a written warning is approaching. A written warning is automatic under the code (save for some specific exceptions listed and referred to below), if an employee is absent on 4 occasions or for 10 working days in any rolling 12 month period. The claimant was away from his work for nearly five months and was thus the subject of a cause for concern interview.

6.	The claimant was then off work for another 10 working days from 5 October 2006 to 20 October 2006. This absence had nothing to do with his disability but was as a result of Sinusitis. On his return he had a work resumption interview with Ms Tracey.

7.	Ms Tracey was aware that the claimant was the subject of the earlier cause for concern interview and after a further absence she would have to pass the matter up to the department of the respondent that managed attendance of officers for consideration of a written warning. This she did with a note stating :-

“Sean was off earlier this year as he was going through a period of depression. He returned to work in May but is still taking medication and attending counselling for his condition.
Sean’s recent illness was sinusitis.
He was given antibiotics to treat this but he had a reaction to these resulting in symptoms including mouth ulcers.
Sean’s doctor gave him a certificate for 2 weeks from 12.10.06, but Sean returned to work as soon as he was able, which was 23.10.06.
As this recent illness is in no way related to his earlier one, I would recommend that a written warning should not be given.”

8.	In the PBC 05/04 guidelines, before the line manager seeks to enforce a written warning, he or she must take certain matters into account. These form a list in the guidelines and include consideration of “any DDA implications.”

9.	The PBC 05/04 guidelines go on to state that any written warning must be given by an officer of at least EO1 grade who should read the interview notes and the decision of the Personnel branch as to whether a written warning is appropriate. Ms Tracey sent her interview notes, together with her note of advice, to Miss McKinley of Managing Attendance section. She made contact with the claimant’s EO1 Ms Graham and the two officers discussed the situation. Ms Graham also discussed the matter with Ms Ternan, the manager of the Enniskillen branch of the respondent. Ms Graham and Ms Ternan considered the list of guidelines to be taken into account before issuing the written warning and specifically that there were not, in their opinion, any recommendations from the Occupational Health Service about the DDA aspect of the claim.

10.	 As a result of these discussions and consideration of the documentation, Ms Graham decided not to take the advice of Ms Tracey, and recommended the issuing of a written warning from Ms McKinley, Managing Attendance Section, to the claimant and copied this to Ms Ternan, who issued the warning to the claimant on 3 November 2006. This warning  dated  2 November 2006 is quite lengthy but the important first paragraph read as follows:-

“I am writing to advise you that the Agency is very concerned to note that during the period 23 January 2006 to 20 October 2006 you were absent due to sickness on 2 occasions totalling 104 working days (this includes 16 days part time medical). I have to inform you that this is considered to be wholly unacceptable.”
The letter went on to set out various consequences of the warning. For instance exclusion from consideration for promotion for the warning period of six months.  The claimant would be subject to further disciplinary measures if his attendance record did not improve during the six month period, mention was made of possible dismissal from the Service.

11.	The interviews that were carried out by the claimant’s line manager Ms Tracey, were carried out under the guidance of the PBC 05/04 guidelines and the interview notes were made on forms which were appendices to that document. Ms Tracey was not called as a witness in the case. However the witnesses for the respondent, namely Ms McKinley, Ms Graham and Ms Ternan, in their evidence frequently referred to the “Social Security Managing Attendance Guide”, which was dated 2003, (which we will refer to as “the 2003 Guide”). This earlier guide is slightly different to the PBC 05/04 guidelines, however the tone of both documents is similar. The tribunal formed a view that the later document PBC 05/04 was designed to allow line managers at a lower level to deal with interviews such as took place in this case. The fuller document is for the Personnel departments and covers all eventualities. 

12.	PBC 05/04 guidelines do not state that DDA considerations should be taken into account when considering the necessity of a cause for concern interview. However Paragraph 7.6 of the 2003 Guide sets out a list of absences, which, if any are the reason for the absence, will exclude the need for a cause for concern interview. This list includes such matters as the first absence after an injury at work or first absence after a sporting injury and other similar absences.  As in PBC 05/04 guidelines DDA considerations are not included in this list.

13.	However both documents remind the interviewer to bear in mind any DDA implications when, following the Cause for Concern interview, the interviewer is considering a written warning. (4.1 of PBC 05/04 guidelines and 14.2 of the 2003 Guide).

14.	Ms McKinley stated in her evidence that she based the written warning given to the claimant only on his absence for sinusitis as “his last absence alone breached the triggers and was not connected to his disability”.
 
15.	The Law

a.	The meaning of discrimination is set out in Section 3A  of the Act as amended . 
“(1)	For the purposes of this Part, a person discriminates against a                      disabled person if-

(a)	for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and
 
(b)  he cannot show that the treatment in question is justified 

                        (2) For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.”

	 Section 4(2) of the Act  states that it is “ unlawful for an employer to discriminate against a disabled person whom he employs” by inter alia, “(d) by dismissing him, or subjecting him to any other detriment”.

	 Section 4A of the Act states “(1) Where (a) 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 is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice,……….having that effect.”

Section 4A subsection (3), goes on to state that “nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know-

(a) ……………………………

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).

Reasons for the Decision

16.	The tribunal hold that the respondent should have taken the claimant’s disability into account when the respondent was processing the return to work of the claimant after his lengthy absence for depression and his subsequent shorter absence for sinusitis. The respondent should, at the most, have given the claimant a further cause for concern interview after the return from sinusitis. This would have been within the ambit of the 2003 Guide and PBC05/04. The tribunal has much sympathy for the respondent’s officers who were endeavouring to implement the two sets of rules on managing attendance, especially in the political climate of public concern about sickness absence in the Northern Ireland Civil Service. The tribunal is also mindful of the decision of the English Employment Appeal Tribunal in Royal Liverpool Children’s NHS Trust v Dunsby [2006] IRLR 351. In that case, quoting from the head note in the report on page351, “The employment tribunal also erred in finding that the claimant’s dismissal was unfair on grounds that the employers acted unreasonably in including absences which related to disability in the “totting- up” process. There is no absolute rule that an employer operating a sickness absence procedure acts unreasonably in taking into account disability related absences as part of a totting- up review process ……”

17.	This tribunal sees a difference between the present case and Dunsby. In this case the claimant had a disability which was recorded by his employer and had been the subject of debate a few years previously when the earlier written warning had been withdrawn. A note had been recorded that trigger points should be carefully considered in the light of the disability suffered by the claimant. This was clearly appreciated by MsTracey at the interviews that she carried out with him. 

18.	The tribunal, taking account of the guidance in Dunsby, appreciates that the respondent is not precluded from taking DDA absences into account in its absence calculations, does consider that in the light of the note from Ms Tracey and the previous documentation concerning the withdrawn warning, an adjustment of the managing attendance policy was called for in this case.

19.	The respondent had already made one adjustment to its employment procedures in respect of the claimant’s disability, in that he was permitted to avail of a phased return to work. The tribunal hold that the respondent should have allowed a further adjustment of a relaxation of the trigger point for the written warning after a DDA absence. A second cause for concern interview would have been better as it would have kept the DDA absence separate from the other absence. This is in the light of the respondent’s clear knowledge of the claimant’s disability, unlike the employer in Dunsby, which had no prior knowledge of any disability. This tribunal sees a wide difference between Ms Dunsby and the present claimant, who, from the evidence of the respondent’s documents was frank and courageous about his disability, and who came back to work before his sickness line had expired after the sinusitis absence.
 
20.	The tribunal cannot hold that the respondent is in breach of Section 3A (1) of the DDA, as after the decision in London Borough of Lewisham v Malcolm and Equality and Human Rights Commission [2008] IRLR 700, the comparator for a disabled person, who is disciplined for being absent from his work as a result of his disability, is a non disabled person who is absent for the same period. In such a case both employees would be treated in the same manner.

21.	The tribunal thus turns to the question of whether the respondent made sufficient reasonable adjustments in this case. As mentioned above the tribunal hold that the respondent should have differentiated between the DDA absence and the sinusitis absence in the disciplinary process upon which it embarked.

22.	The next question considered by the tribunal was as follows:-  bearing in mind the tribunal’s decision that the respondent had failed to make a reasonable adjustment with regard to the trigger point for the written warning, was the conduct of the respondent, in not making the additional adjustment to the process of managing the absences of the claimant, justified for the purpose of Section 3A (6) of the DDA.? The tribunal heard evidence of the problems of excessive sick leave in the Northern Ireland Civil Service and saw documents which set out the methods being used to tackle the problem, which included the interviews and written warning procedures adopted in this case. The reason for the processing of the absence policy of the respondent in this case, the tribunal hold, was to endeavour to cut down on the problem of excessive sick leave in the Civil Service.  The introduction to both the managing absence guidelines documents refers to this problem. Indeed the claimant on being questioned as to his knowledge of this problem of sickness absence stated that he was well aware of it. 

23.	The reason for the respondent’s treatment of the claimant was a substantial reason, to address a serious problem in the service and the reason was material to this case of the claimant, in that he was, on a preliminary view of the matter, a person who had taken two sickness absences within a rolling twelve months. The first  a  period of some 78 working days and the second 10 working days ( the extra 16 days to make up the 104 days referred to in the written warning were “part time medical days”). Consequently this tribunal holds that the reason for the treatment of the claimant was, for the purposes of Section 3A (3) of the DDA, “both material to the circumstances of the particular case and substantial”. However despite the seriousness and relevance to the respondent’s conduct; in applying to the claimant the full rigour of the managing absence policy in the way that it did, the respondent failed to apply to the claimant’s case the restraints on automatic disciplinary action which had been “flagged up” to the respondent. These restraints on the automatic processes of the respondent’s policy were flagged up by the disability evaluation report of 18 August 2005, which warned that the claimant’s disability might affect attendance at work, the email of 5 September 2005 from Patricia McAuley, which spoke of “a less rigorous application of the absence triggers” and the note sent to Ms McKinley by Ms Tracey the claimant’s line manager. For these reasons the tribunal hold that treatment of the claimant by the respondent was not justified. 

24.	The tribunal then considered Section 3A (6) of the DDA which can be paraphrased as follows. If an employer is under a duty to make reasonable adjustments in relation to a disabled person, but fails to comply with this duty, as is the case in this present case, the employer’s treatment of the disabled employee cannot be justified; unless the employer’s treatment would have been justified, had it made the reasonable adjustments. As referred to above this tribunal holds that reasonable adjustments should have been made. If they had been made, then the treatment of the claimant in being given a written warning which referred to 104 days absence and took no account of a DDA absence would have been discriminatory. The respondent’s witnesses were adamant that the written warning was only in respect of the sinusitis absence and they did not consider the disability absence in determining to issue the written warning. However the tribunal hold that the terms of the written warning of 2 November 2006 made no distinction between the two absences and left the claimant no option but to conclude that he was being sanctioned for his disability absence.  

25.	The respondent breached Section 4(2) of the DDA in that the managing attendance policy, which the tribunal hold is “a provision criteria or practice”, for the purpose of Section 4A, placed the claimant at “a substantial disadvantage in comparison with persons who are not disabled”. This substantial disadvantage was manifest in the fact that the claimant was precluded from applying for promotion for the time that his written warning remained on his record and the serious matter of the written warning in effect preventing the claimant being able to take any future sick leave during that period without jeopardising his job, no matter how ill he was or what problems he was experiencing with his disability.  
    
26.	For these reasons the tribunal hold that the respondent has discriminated against the claimant, a disabled person, in that it failed in its duty to make reasonable adjustments to its procedures for managing sickness absence to take account of the claimant’s disability.

Award of Compensation

Loss is the difference in pay between EO2 and AO scale for the period the claimant could have been promoted, but for the disciplinary warning. 

Period of loss 13.02.07—01.10.07 (24 weeks)
Date of annual pay rise: 01.08.07  
Loss of Pay
13.02.07 – 31.07.07= 19 weeks 
EO2, point 5     £18247
AO, max point  £16435
                          ---------------
                          £1812 / 52 x 19 =                        £662.07

01.08.07 – 01.10.07 = 5 weeks 
EO2, point 4     £18450
AO, max point  £16764
                         -------------
                          £1686 / 52 x 5 =                           £162.11
                                                                               -------------------
                                                                              £824.18

Loss of Employer Pension contributions
of 16.5%
£824.18 x 16.5%=                                                 £135.98
                                                                              -------------------------
                                                            Total          £960.16

The tribunal also award a sum of £2000.00 for injury to feelings. The tribunal consider that the claimant was, as a result of the failure of the respondent to make a reasonable adjustment to its sickness absence procedure, put in a position where he was wrongly the subject of a written warning, which precluded him from making application for promotion during the time that the warning was in place. Furthermore he was left in a situation where if he became ill or was subject to further incidents relating to his disability he would be at risk of losing his job. The tribunal hold that that worry was very stressful for the claimant. The tribunal took account of the guidance laid down by the English Court of Appeal in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102 and determine that the claimant’s injury to feelings falls within the lowest band indicated by the Court of Appeal in that case.

The tribunal does not consider that it is appropriate to award payment of interest on the compensation awarded above.

The total compensation so awarded is £2960.16

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

        

Date and place of hearing: 	29 – 30 September 2008;
1 October 2008, Belfast

Date decision recorded in register and issued to parties: