THE INDUSTRIAL TRIBUNALS

CASE REF:  1345/07

CLAIMANT:			Robert James Mitchell

RESPONDENT:		Seagate Technology Ireland

DECISION
The unanimous decision of the tribunal is that the claimant was not discriminated against on the grounds of disability and his claim is therefore dismissed.

Constitution of Tribunal:
Chairman:		Mrs Ó Murray
Members:		Mr H Lysk
			Mr A Huston

Appearances:
The claimant was represented by Mr A Sands, Barrister-at-Law, instructed by The Equality Commission for Northern Ireland.
The respondent was represented by Mr P Bloch, of Engineering Employers’ Federation.

The claim

1.	The claimant claimed unlawful discrimination under the Disability Discrimination Act 1995 (“the DDA”) in two respects, namely, firstly, that the respondent failed to comply with the duty to make reasonable adjustments for the claimant and secondly, that the claimant was less favourably treated for a reason related to his disability.

The issues

2.	The issues before the tribunal therefore were:

(a)	did the duty to make reasonable adjustments arise and, if so, did the respondent fail to comply with that duty?

(b)	was the respondent guilty of disability-related discrimination?

(c)	if the respondent was guilty of disability-related discrimination was any discriminatory treatment justified?

Sources of evidence

3.	The tribunal had witness statements from the claimant, the respondent’s witnesses, namely: Mr O’Donnell, the claimant’s line manager; Mr Harper of HR; Mrs King of HR; Ms Connolly of HR; Mr Taggart, the claimant’s former line manager; and Mr Patton Equipment Sustaining Manager.  The tribunal also heard evidence from Doctor A Glasgow, the Occupational Health Doctor retained by the respondent.  The tribunal also had an agreed bundle of documentation which included medical evidence.  The tribunal heard submissions immediately after the hearing and reconvened on the 3 September 2008 to hear further submissions from the parties on the effect on this case of the decision of the House of Lords in the decision in Mayor and Burgesses of the London Borough of Lewisham v Malcolm [2008] UKHL 43 (“the Malcolm decision”).

Findings of fact

4.	The tribunal found the following facts relevant to the issues before it:

(1)	The claimant worked in the respondent’s factory in the Equipment Support Group which had responsibility for maintaining and servicing the factory machinery.  The claimant was and continues to be, a conscientious, diligent worker. 

(2)	The claimant’s contract required that he work an “alternate shift pattern” which meant that he worked four nights followed by four days off work and then worked four days followed by four days off work. The respondent’s factory is a 24-hour operation relying on a substantial number of shift workers.  The shift flexibility afforded by the alternate shift pattern is an important feature of its operation.  There are only two types of employment contract namely the aforesaid alternate shift pattern contract and a day shift contract.

(3)	As the claimant was employed on a shift contract which required him to alternate night and day shifts he was paid a shift premium.  The payment of the shift premium was consequent on working that shift pattern.

(4)	At the end of June 2005 the claimant returned to work following an operation to remove his thyroid due to cancer.  The removal of his thyroid meant that the claimant would have to take medication in the form of Thyroxin to control his metabolism for the rest of his life.  It was agreed between the parties that the claimant thereby suffered from a disability within the meaning of the DDA.

(5)	On 27 June 2006, the claimant’s GP wrote a letter advising that it would be ‘advantageous’ to the claimant if he were exempted from shift variation and maintained on day shift only.  The respondent allowed the claimant to work day shifts only, from the date of his return to work following his operation.

(6)	On 7 July 2006, the claimant was examined by Doctor Glasgow and he agreed with the decision of the respondent to have the claimant on rehabilitation on day shift, but advised that from early August he could return to the alternate shift pattern.

(7)	The HR Department asked Doctor Glasgow for an up-to-date report. Doctor Glasgow examined the claimant on the 31 August 2006 for the purpose of providing further advice regarding shift working.

(8)	On 31 August 2006, Doctor Glasgow wrote to the claimant’s Consultant ENT Surgeon, Mr McBride, asking for a report to detail the results of any medical investigation, treatment and prognosis.  Doctor Glasgow wrote on the same day to the respondent’s HR Department advising that he wished to obtain further medical information from the surgeon.

(9)	Mr McBride provided a medical report dated 22 February 2007 to Doctor Glasgow.  In accordance with confidentiality policy this report was not sent to the respondent:  rather, Doctor Glasgow wrote on 19 March 2007 to HR to advise that the report had been received and advised:-

“His surgeon has indicated in this report that it would be preferable if he could work regular day shifts as opposed to changing shifts of day and night, although I know of no firm medical evidence to support such an opinion.  Should the company wish him to work on his B shift there would therefore be no firm medical reason why he should not do so.”

(10)	On 23 March 2007 the claimant was told by his manager, Mr Taggart, about Doctor Glasgow’s recommendation and the claimant requested an urgent meeting with HR because he had been given the date of 13 April 2007 to return to the alternate shifts.

(11)	On 29 March 2007, Doctor Glasgow sent another letter to HR confirming his advice that in his view the claimant would be fit to undertake the alternate shift pattern of working.

(12)	On 29 March 2007 the claimant had a meeting with Ms Connolly of HR and advised her that he could never return to night shifts due to his condition and medication.  He stated that he had an appointment with his Consultant on 5 April 2007 and would come back to HR following discussion with his surgeon.  

(13)	On 6 April 2007 the claimant had a meeting with Mrs King of HR and Mr Taggart, his manager.  The claimant advised that he understood that his Consultant said he should not be working night shifts and that this had been communicated to Doctor Glasgow.  HR put back the return date to 29 April 2007 to enable the claimant to talk to his Consultant and obtain a copy of his report and he would then come back to HR following the meeting with his Consultant.  

(14)	On 25 April 2007 the claimant wrote to HR advising that, following a meeting with his Consultant on 23 April 2007, he had been instructed that under no circumstances whatsoever should he return to the alternate shift pattern.  He also advised that he had contacted the Labour Relations Agency, The Equality Commission for Northern Ireland and believed his treatment might amount to unlawful discrimination under the DDA due to the failure of the company to make reasonable adjustments for his medical condition.  The claimant also advised that as there was a three month time-limit for bringing proceedings in the industrial tribunal, he wanted the respondent to deal with the matter urgently.

(15)	On 1 May 2007 the claimant requested and was advised by Mr Harper, of the grievance procedure.  The claimant said to Mr Harper that, he fell within the definition of disability under DDA.

(16)	On 25 May 2007 the claimant met with Mr Patton to discuss the report from Doctor Glasgow.  Mr Patton told the claimant that he expected to see him back at alternate shifts on 31 May 2007.  The claimant was most unhappy and said that returning to such a shift pattern would be adverse to his health.  He said that there was a report on its way from his Consultant and his Consultant was getting a report from an Endocrinologist.  He advised Mr Patton that he had been in contact with the Labour Relations Agency and The Equality Commission, had received literature from them and mentioned the DDA and the deadline for submitting a grievance.  Mr Patton advised the claimant to get the report from his Consultant in to the company as quickly as possible and also stated:

“…I reminded him that I expected to see him to return to night shift next week – May 31 – and failure to do so would be considered unauthorised absence, and result in disciplinary action.”

(17)	By letter dated 25 May 2007 the claimant lodged a formal grievance.  In that letter the claimant stated:

“I have been instructed to return to the normal alternate shift pattern effective from the next B shift night shift.  This instruction totally contradicts the medical advice that I am currently receiving from my Consultant Surgeon, Mr G McBride, his partners and my General Practitioner.  …  The advice of all the doctors who have been treating me since my surgery is that an alternate shift pattern will be ‘detrimental to my health’.  In an attempt to get Seagate Technology to fully appreciate the seriousness of my condition a report has been compiled by Mr G McBride and forwarded to the HR Director just this week.” 

The claimant also mentioned that he had had consultations with the LRA, The Equality Commission and had been informed that the company might have unlawfully discriminated against him due to failure to make reasonable adjustments for his condition.    

(18)	On 28 May 2007 the respondent’s HR Director received a letter from Mr McBride (dated 11 May 2007) in which he stated that it would be “preferable” for the claimant to work a regular day shift pattern as opposed to a changing day/night shift pattern.

(19)	On 1 June 2007, Doctor Glasgow wrote to HR to advise that having discussed this type of case anonymously with a Consultant Occupational Health Physician colleague, he and his colleague did not feel that they could support Mr McBride’s opinion and Doctor Glasgow confirmed his advice to the company that the claimant would be capable medically of returning to normal shift working should the company so require.

(20)	On 11 June 2007 the claimant had two meetings with Mr Patton.  At the first meeting, Mr Patton had Doctor Glasgow’s report which stated that he was fit to return to normal working hours.  Mr Patton told the claimant that he now wanted him to return to the normal shift work pattern.  Mr Patton gave the claimant three weeks so that he could sort out family commitments.  The claimant mentioned the advice he had received from the LRA, the Equality Commission and mentioned the DDA.  Mr Patton mentioned Mr McBride’s letter of 28 May 2007, which stated that it was preferable that the claimant work days but did not say that he was unfit on medical grounds to return to his shift working.  

(21)	The second meeting on that date took place when Mr Patton had obtained the letter of 11 May 2007 from Mr McBride which had been received in the company’s HR department on 28 May 2007.  HR had not forwarded this to Mr Patton in accordance with its confidentiality policy on medical matters.  Mr Patton said that that letter (which stated that it would be preferable for the claimant to work a regular day shift pattern) did not change his decision and he reiterated that the claimant should return to work and specified the date of 2 July 2007.

(22)	On 17 June 2007 a grievance meeting took place between the claimant and Connor O’Donnell.  Mr O’Donnell confirmed that he was expecting the claimant to return to the alternate shift pattern on 2 July 2007.  The claimant stated that a return to shifts would contradict the advice he had received from the Consultant, his partners and his GP.  Mr O’Donnell asked the claimant if he would consider trying the shift for a while to see how he got on and the claimant responded:

“No, as long as I am advised that alternating shifts would be detrimental to my health condition, I’m not prepared to take a chance.  Doctor Glasgow may be prepared to take a chance with my health but I’m not.”

When asked if there was any way at all he would consider going back on shifts the claimant responded:

“As long as my doctors, three of them, are advising me against alternating shifts, I won’t be working them.”

		The claimant stated that he would be seeing his GP that week and stated:

“If he still advises me that an alternating shift pattern will be detrimental to my health, I cannot comply with your instructions.  Three doctors are telling me that I cannot work alternating shift patterns.”

(23)	A GP letter of 22 June 2007 was provided by the claimant to the company on 24 June 2007.  In the letter the GP strongly states that the claimant should not be forced to do alternating night shifts and states that this is because of his medication which necessitated adherence to a regular 24 hour routine as much as possible.  The GP indicated that the issue should be explored further and stated:-

“Specifically that Doctor Glasgow might take the opportunity to avail of Mr McBride’s offer to provide literature for supporting this issue and his consultant colleague’s viewpoint.”

(24)	On 20 June 2007, Doctor Glasgow wrote to the claimant’s GP, Doctor McGinley, in response to his letter and indicated that he would be writing to Mr McBride to ask him to share with him the medical information and evidence with regard to thyroid replacement therapy whilst working on shift.  On that same date, Doctor Glasgow wrote to Mr McBride referring to Mr McBride’s previous letter and stating:-

“ … in that letter you also refer to the opinion of several Endocrinologists.  I would be grateful to receive details of this specific Endocrinological medical information from you so that I can advise the company regarding his health and fitness for work.”

(25)	On 25 June 2007 the claim form was lodged with the Office of the Industrial Tribunal.

(26)	On 27 June 2007, Mr O’Donnell was informed that Doctor Glasgow was seeking further information from the claimant’s doctors and that the company should not expect the claimant back on shifts until this was all cleared up.  Mr O’Donnell passed this message on to the claimant the same day.  Mr Patton gave evidence at hearing that Ms King had rung him to say that she had got, or was getting, information from the claimant’s health team so Mr Patton decided to suspend the return to shift work.

(27)	The claimant wrote a letter dated 29 June 2007 received by the company on 3 July 2007 indicating that he had initiated proceedings with the industrial tribunal and stating again his belief that the treatment afforded him by the company amounted to unlawful disability discrimination due to a failure to make reasonable adjustments.

(28)	On 4 July 2007, Mr Patton met with the claimant to tell him that he was to continue working day shift patterns indefinitely pending medical information that Doctor Glasgow had requested from his Consultant and GP.  It was agreed between the parties that 4 July 2007 was the end of the period relevant to these proceedings, that is, the end of the period during which the alleged acts of discrimination occurred.

(29)	On 11 July 2007 the respondent received, from the Office of the Industrial Tribunal, the claimant’s claim form.

Findings on medical evidence

5.	The claimant had had cancer.  The significance of the cancer, for these proceedings, was that this led to the removal of his thyroid which meant that he had to be on medication for life to control his metabolism.  As there were several mentions of the fact that the claimant had had cancer when counsel for the claimant was cross-examining the respondent’s witnesses, the tribunal sought clarification of the nature and scope of the disability from the claimant’s counsel.  The claimant’s counsel was very clear that the physical impairment in this case was the metabolism problem which requires thyroxin to remedy it, rather than the fact that he had had cancer.  At the relevant time for these proceedings the claimant was clear of cancer.  

6.	The claimant was obviously very anxious regarding his medical condition given the history of medical difficulties that he had had.  The claimant came across at hearing as someone who continued to be very anxious about his medical well-being to the extent that in evidence he indicated that he felt that the issue of going back to alternative shifts could be a “matter of life and death” for him.  The tribunal has no adverse comment on this, except to say that this fear on the claimant’s part was not borne out by the medical evidence before the tribunal, nor was this level of risk ever referred to in the course of the claimant’s dealings with the respondent nor in the documentation relating to these proceedings.

7.	Doctor Glasgow’s evidence at hearing was very clear that there was no medical reason why the claimant could not return to alternate day/night shifts.  Indeed, Doctor Glasgow gave evidence that he had had patients with thyroid problems who were taking Thyroxin and who had worked day and night shifts, in various configurations, without difficulty.  It was beyond dispute, according to Doctor Glasgow, that working night shifts has some adverse effect on individuals’ health generally in terms of sleeping patterns, digestive problems and other problems. However, Doctor Glasgow was clear that working shifts was not more of a problem for the claimant than for the general working population.  

8.	As a result of the removal of the claimant’s thyroid, he was on Thyroxin replacement therapy which meant that he had to take Thyroxin.  There can be one or two doses per day depending on the strength of the dose.  Thyroxin has a half-life of 36 hours so it can be taken any stage during the 24-hour cycle.  It need not be taken at a specific time of day nor repeatedly throughout the day to control the level of Thyroxin in the system.  In this way it was different to insulin.  Thyroxin has a slow half-life which means that it takes several days to detect the effect of a change in dose.  So, for example, if the dose were changed you would not check the Thyroxin level immediately, but would wait possibly for several weeks to see if a “plateau” had been achieved.  

9.	Doctor Glasgow confirmed that an ENT surgeon specialises in problems of the ear, nose and throat and, as a surgeon, is interested in diagnosing and removing diseased tissue.  An Endocrinologist is a physician who specialises in the endocrine system which comprises the hormonal glands including the thyroid.  The Endocrinologist deals with the ongoing management of conditions, managing dosage and analysis of lab results in relation to the metabolism.  

The law

10.	The law on disability discrimination is contained in the Disability Discrimination Act 1995, as amended.  

11.	The law on disability discrimination is outlined and commented upon in Harveys Industrial Relations and Employment Law at Division L Paragraphs 1346 – 1380.  The parties referred the tribunal to paragraphs 1347 – 1348.  The parties also referred the tribunal to the following cases:

O’Hanlon v Revenue and Customs Comrs [2007] IRLR 404 CA

Meikle v Nottinghamshire CC [2004] IRLR 703 CA

Gibson v EA Staples Shipbrokers LTD 2007 All ER EAT

Tarbuck v Sainsbury Supermarkets Ltd [2006] IRLR 664 EAT

Shamoon v Chief Const RUC [2003] All ER 26 HL

HM Prison v Johnston [1997] IRLR 162

High Quality Lifestyle v Watts [2006] 850

Jones v The Post Office [2001] ICR 805 CA

Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566 EAT

Project Management Institute v Latif [2007] IRLR 579 EAT

Clark v Novacold Ltd [1999] IRLR 318 CA

Rothwell v Pelikan Hardcopy Scotland Ltd 2006 IRLR 24 EAT

12.	The duty to make reasonable adjustments.  The employer’s duty to make reasonable adjustments is outlined in the DDA at Section 4A and states, insofar as is relevant to these proceedings, as follows:

“4A – (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 it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.”

13.	In the case of Rowan v The Environment Agency 2008 IRLR 20 the EAT outlined the steps that the tribunal must go through in order to determine whether the duty to make reasonable adjustments arises and whether it has been breached.  The steps relevant to this case, are as follows:-

(1)	identify the provision, criterion or practice applied that has put the claimant at a disadvantage compared to those who are not disabled;

(2)	identify the non-disabled comparator (where appropriate);

(3)	  identify the nature and extent of the substantial disadvantage        suffered by the claimant.

14.	If the duty arises the tribunal then goes on to determine whether any proposed adjustment is reasonable to prevent the provision, criterion or practice placing the claimant at that substantial disadvantage.

15.	It is clear from the case law, that there is no onus on the claimant to suggest adjustments.  It is good practice for the employer to ask the employee about any possible adjustments.  There is no separate duty to consult or carry out a risk assessment (Tarbuck 2006 EAT).  However, failure to carry out an assessment or to consult, does not mean that the employer can rely on ignorance to excuse a failure to make a reasonable adjustment (Hay v Surrey County Council 2007 CA).

16.	Section 18B of the DDA sets out the factors that the tribunal must consider when deciding whether it is reasonable for an employer to make any particular adjustment once the duty to make a reasonable adjustment has been triggered.

17.	At Section 18B(2) of the DDA examples are given of steps which employers may need to take to comply with the duty to make reasonable adjustments.  These include altering the employee’s hours of work.  The Disability Code of Practice on Employment and Occupation gives guidance on what those steps might mean in practice.  

18.	The burden of proof provisions as outlined in the case of Igen Limited v Wong [2005] IRLR 258 CA apply to these proceedings.  The claimant must prove facts from which, in the absence of an adequate explanation, the tribunal could conclude:-

(a)	that a duty to make a reasonable adjustment has arisen; and

(b)	that it has been breached.

If the claimant proves such facts the burden shifts to the employer to prove either that no such duty arises or that it has not been breached.  

19.	Disability-related discrimination.  The law on disability-related discrimination is set out at Section 3A(1) to (4) of the DDA.  Disability-related discrimination occurs when an employer’s treatment is for a reason which relates to the employee’s disability, the treatment is less favourable than the way in which the employer treats or would treat others to whom that reason does not, or would not, apply and the employer cannot show that the treatment was justified.  Before the Malcolm decision, the comparator was someone, either real or hypothetical, to whom the reason for the treatment did not apply ie it was someone without the relevant disability who was not subjected to the disability-related treatment.  Whether or not the employer had knowledge of the disability was irrelevant to the question of whether this type of discrimination had occurred.  (Clark v Novacold 1999 CA).  However, the House of Lords in Malcolm held, by a majority, that Clark v Novacold was wrongly decided.  It decided that the comparator should be a non-disabled person in the same position as the claimant.  Mr Malcolm had sublet his council flat in breach of the terms of his tenancy but claimed that, as this act was related to his disability, the council’s act in seeking possession of the flat was related to his disability, was therefore discriminatory and had to be justified.  The House of Lords held that the comparator should be a person who, for a reason other than disability, sublet his flat in breach of his tenancy.  As such a comparator would have been treated the same as Mr Malcolm, there was no less favourable treatment and the claim failed.  There were other issues aired in the Malcolm case which are not relevant to these proceedings. 

20.	In order to prove facts from which the tribunal could conclude that discrimination has occurred, the claimant must show detriment.  The House of Lords decision in Shamoon v Chief Constable of the Royal Ulster Constabulary [2006] UKHL 11 is the authority on what constitutes a detriment for the purposes of discrimination proceedings.  The concept of detriment is broad in scope but it is not without limit.  The question for the tribunal in determining detriment is whether the treatment was of such a kind that a reasonable worker would, or might, take the view that, in all the circumstances, it was to his detriment.  It is not necessary to demonstrate some physical or economic consequence and an unjustified sense of grievance cannot amount to a detriment.  It is an objective test which must be applied.

21.	The burden of proof provisions apply to this aspect of discrimination as follows.  The employee must prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that, for a reason relating to his disability, he has been treated less favourably than a non-disabled person in his position has been treated, or would be treated.  Such a comparator can, therefore, be real or hypothetical.  If the employee does prove such facts the burden of proof shifts to the respondent to show that the employee has not suffered the less favourable treatment for a disability-related reason or, if he has, that the treatment was justified.  

22.	In order for the treatment to be justified the reason for the treatment must be both material to the circumstances of the particular case and substantial.  This is an objective test which is akin to the “band of reasonable responses” test applicable in the unfair dismissal sphere. In order for the respondent to prove justification the reason for the treatment must be both material and substantial, that is, it must carry real weight.  This is a less demanding test than the reasonableness of adjustments.  The tribunal should not substitute its own view and it is a low threshold for the employer to surmount.  These principles were made clear in Jones v Post Office 2001 CA  where it was stated by Arden LJ at Paragraph 41:-

“If credible arguments exist to support the respondent’s decision, the employment tribunal may not hold that the reason for the discrimination was not substantial … In short … justification is shown provided the employer’s reason is supportable.”

Conclusions

23.	In this case so much depends on the tribunal’s conclusions in relation to the medical situation.  

24.	The claimant’s side produced no medical evidence other than the documentation and reports provided to the respondent.  The documents at their height advised that it was “preferable” or “advantageous” for the claimant to work day shifts rather than alternating night and day shifts.  There were no medical witnesses to give evidence on behalf of the claimant at hearing and there were no reports or evidence presented to the tribunal from any endocrinologist.  

25.	On the respondent’s side, the tribunal had Doctor Glasgow’s correspondence and report and Doctor Glasgow’s oral evidence in cross-examination.  

26.	The tribunal accepts the evidence of Doctor Glasgow and found it to be clear with a helpful level of detail.  It was wholly proper of Doctor Glasgow to seek further specific information from Mr McBride to support the points which Mr McBride was making which differed from Doctor Glasgow’s actual experience of employees who were taking Thyroxin and working night shifts without any problems related to their metabolic condition.  By the date of hearing the supportive medical evidence had still not been forthcoming to Doctor Glasgow from Mr McBride.  

Duty to make reasonable adjustments

27.	The claimant’s counsel submitted that the provision, criterion or practice which placed the claimant at a substantial disadvantage compared with a non-disabled person was the giving of the order to return to alternate shifts.  The question for the tribunal is:  did the claimant thereby suffer a substantial disadvantage?  

28.	Given that the tribunal has accepted Doctor Glasgow’s evidence that working alternate shifts has no adverse medical consequence relevant to the claimant’s condition, the claimant has therefore failed to show that he would be at any disadvantage, never mind a substantial disadvantage if he were to return to alternate night shifts compared to those without his disability.

29.	There was a lot of debate as to whether or not the respondent ordered the claimant to return to shifts or whether it was something less than an order.  The claimant had been given the date of 13 April 2007 to return to shifts and this was changed to 29 April 2007, 31 May 2007 and 2 July 2007.  The dates shifted because of the ongoing dispute on the medical evidence.  The respondent then suspended the date for return until the medical evidence was sorted out.  The tribunal finds that the respondent did order the claimant back to work on 29 April 2007, then 31 May 2007 and 2 July 2007.  However, in the tribunal’s view these orders were legitimate orders and well within the range of what a reasonable employer might do in the circumstances.  The company was trying to revert to the claimant’s contract, whereby he works shifts, having made a special arrangement for him following his return to work after his surgery.  

30.	The claimant’s counsel submitted that, being given orders to return to shifts was detrimental to the claimant’s health. Further, he submitted that, once the order to return was given, the claimant was at a disadvantage in that, when he would go to do the work his health was likely to suffer.  Counsel submitted that, just because the claimant would suffer in the future, it did not mean that he was not disadvantaged when the order was given.  The tribunal heard no medical evidence to support these contentions.  The claimant appeared essentially to be caught in a dispute between the company doctor and his own doctors.  As the claimant’s medical advisers did not give evidence to the tribunal, the tribunal could not ascertain whether the claimant’s understanding of the strength of the advice he was receiving from his doctors was because of what the doctors were saying or because of the claimant’s anxiety about his medical situation generally.  Certainly the medical advisers did not make their point at all as strongly to the respondent nor to Dr Glasgow as the claimant felt they were making it to him.  

31.	The tribunal finds that there was no substantial disadvantage suffered because there is no evidence, on the medical evidence before the tribunal, that there would be a difficulty for the claimant if he returned to shifts.  The claimant’s subjective feeling of disadvantage was not enough in the tribunal’s view, to trigger the duty to make adjustments.

32.	As a consequence there was no duty to make reasonable adjustments and therefore no requirement to refrain from ordering the claimant back to work or requiring him to work shifts. 

33.	In addition, there was no requirement for the respondent to consider paying shift premiums as a reasonable adjustment as the duty to consider whether such an adjustment was reasonable did not arise for the reasons outlined above.  The tribunal therefore does not need to decide whether such an adjustment would have been reasonable nor does the tribunal need to delve into the authorities of Meikle, O’Hanlon and Gibson v Staples which each counsel pointed to to support their opposing submissions.  The payment of the shift premium was related to the working of alternate shifts.  The fact that the respondent actually paid the premium for a time to the claimant whilst he was working day shifts only, did not mean that they were bound to do so on a permanent basis, without the claimant reverting to his normal contract.

Disability-related discrimination

34.	The key matters for the tribunal to identify under this head are: 

(1)  the reason for the treatment; 

(2)  whether it was related to the claimant’s disability; 

(3)  the correct comparator; 

(4)  whether there was less favourable treatment applying the Shamoon test; 

(5)   whether there was justification for the treatment.

35.	The claimant’s submissions.  The claimant’s counsel at the end of the hearing, submitted that the reason related to disability was that working alternate shifts would cause health difficulties.  The comparator was someone not disabled who was ordered to return to shifts.  He submitted that Shamoon meant that you do not look at the comparator but focus on the reason why and in this case if the claimant had not been disabled this treatment would not be happening to him.  The less favourable treatment was the respondent requiring him to go back to alternate shifts.  In further submissions on the effect of the Malcolm decision, the claimant’s counsel conceded that, as the Malcolm decision was directly applicable to this case the correct comparator was someone in the claimant’s position who was refusing to work alternate shifts for a reason other than disability.  He further submitted that, whilst the commentaries agreed that disability-related discrimination would be difficult ever to establish because of the narrow construction favoured by the House of Lords and, that the decision of Clark v Novacold appeared to be ‘dead in the water’, it was, nevertheless, open to the tribunal to find that the Malcolm decision does not apply in the employment context.  The reason for the latter point was that the House of Lords, he submitted, left the door open for the argument that a wider interpretation of the comparator issue was possible in the employment context.  Counsel cited the dissenting judgement of Baroness Hale and several comments made by Lords Bingham and Neuberger in support of this argument but conceded that Lords Brown and Scott were unequivocal in their overturning of Clark v Novacold across all areas covered by the Act.

36.	The respondent’s submissions.  The respondent’s counsel, at the end of the hearing, submitted that the reason related to disability was, that because of his health the claimant could not work alternate shifts (for which there was no supporting medical evidence) or that the claimant could not work shifts and his inability to do so was not related to his disability.  The comparator was someone who could not work shifts for a reason other than disability.  He submitted that being asked to work shifts was unrelated to disability.  In further submissions on the effect of the Malcolm decision, counsel submitted that the definition of disability-related discrimination is the same throughout the Act and, as Malcolm overturns Clark v Novacold, the comparator is someone refusing to work alternate shifts for a reason unrelated to disability.  He submitted that such a person would have been asked by the respondent to return to shifts and if they continued to refuse to do so, they would be compelled to return as the claimant had been so compelled.  As there would therefore have been no differential treatment, there was no detriment and therefore no discrimination.

37.	The tribunal has considered the claimant’s counsel’s submissions carefully and cannot agree with him that it is open to us to find that the Malcolm decision does not overturn Clark v Novacold in the employment sphere.  We are not minded to follow the dissenting judgement in relation to the comparator issue and we do not accept that the dicta of Lords Bingham and Neuberger point us away from the main thrust of their decisions nor away from following the clearly expressed views of Lords Brown and Scott.

38.	The claimant’s case was that the detriment under this type of discrimination comprised three elements all of which the claimant contended were related to his disability:-

(a)	that he was threatened with disciplinary action;

(b)	that he had to raise a grievance in an attempt to get his employer to take his condition seriously and 

(c)	that he was repeatedly ordered back to work alternate shifts.

39.	Threat of disciplinary action.  Despite the claimant’s repeated allegation that he was twice threatened with disciplinary action he admitted under questioning that he was only threatened once and it is borne out by the documentation that disciplinary action was mentioned only once.  

40.	The tribunal does not accept that the claimant was inappropriately threatened with disciplinary action.  On 25 May 2007, at the meeting between the claimant and Mr Patton, he was told of the possible consequence of failure to return on the date stipulated, namely 31 May 2007.  The tribunal’s view is that it would have been remiss of Mr Patton, the claimant’s manager, not to warn the claimant of the possible consequences of failing to return on the date stipulated.  The comparator would have been treated the same way and there is therefore no less favourable treatment.  Even applying the Clark v Novacold definition of a comparator, the tribunal would not have found this to have been a detriment.

41.	Raising a Grievance.  As regards the allegation that the claimant had to raise a grievance in an attempt to get his employer to take his condition seriously, the tribunal does not accept that this was, in fact, the case.

42.	Firstly, contrary to the allegation by the claimant, the chronology simply does not bear out that the respondent changed its view because of the lodgement of the claim form with the tribunal.  

43.	Secondly, the grievance was raised and formally submitted on 25 May 2007.  The tribunal does not accept the claimant’s contention that the respondent only took the claim seriously because he said he was going to raise a grievance or mentioned a grievance.  The claimant mentioned a grievance, the involvement of the LRA, The Equality Commission and the possibility of a claim from 1 May 2007.  The tribunal finds that the respondent’s suspension of the dates to return to work was not related to the raising of a grievance and the tribunal does not accept that the respondent was not taking him seriously.  The tribunal finds that the claimant’s managers were, in general, supportive of his position both in the manner in which they dealt with him and by postponing return dates until the medical position was clarified.

44.	Repeatedly ordered to work alternate shifts.  The third element in the disability-related discrimination claim was that the claimant was repeatedly ordered back to work alternate shifts.  As the tribunal has found, the claimant was indeed ordered to return to his shifts.  The tribunal then looked at the reason why the employee was treated that way and finds that the claimant was ordered to return to night shifts because he was not performing his normal contract.  The claimant was not performing his contract which required him to work alternate shifts, because of his belief that doing so would be detrimental to his health.  

45.	The claimant believed that working shifts would be detrimental to his health.  However the question for the tribunal is whether, on the medical evidence before this tribunal, that was, in fact, the case.  On the medical evidence before the tribunal there was no evidence that working shifts would be detrimental to the claimant’s health.

46.	The tribunal then looked at whether the fact that the claimant was not performing his contract was related to his disability and finds that it was related to his disability, whether this was because of the medical opinion being communicated to the claimant by his doctors or whether it was the claimant’s own belief that it was necessary for him to continue on day shifts. It also followed his surgery which had led to his metabolism problems. In a broad sense, therefore, the non-performance of his normal contract was related to his disability.

47.	As the non-performance of his normal contract was the reason related to his disability which caused the treatment, the comparator, as outlined in Malcolm, is someone refusing to work shifts for a reason other than disability (as opposed to the Clark v Novacold comparator who would be someone who could perform such a contract).  It was agreed that the comparator in this case was a hypothetical one.  The comparator therefore is an individual who refused to work alternate shifts.  The employer would have ordered that individual to return to alternate shifts in the same way as it ordered the claimant back to shifts. The claimant must show less favourable treatment compared to his comparator and as the claimant has not done so, his claim fails.

48.	The tribunal wishes to record that, even under the old test using the Clark v Novacold comparator, the claimant’s claim would have failed.  Different treatment does not necessarily amount to less favourable treatment.  The test for detriment outlined in the Shamoon case is whether the reasonable employee would regard the claimant as disadvantaged in the circumstances in which he had to work.  The disadvantage here, would have related to the adverse medical consequences if the claimant returned to night shifts.  The tribunal found no evidence of adverse medical consequences so the question for the tribunal would have been:  would a reasonable employee regard the claimant as being disadvantaged in being required to revert to his contractual pattern of alternate shifts there being no evidence of an adverse consequence if he did so?  The tribunal’s view is that a reasonable employee would not have regarded the claimant as disadvantaged by this requirement and the claimant, therefore, would have failed to show less favourable treatment.

49.	If the treatment had amounted to disability-related discrimination, the tribunal would have looked at the justification defence.

50.	On the justification defence, the tribunal’s view is that the giving of dates to return to alternate shifts by the employer was within the band of reasonable responses that a reasonable employer might make.  In this case, the dates were changed as the claimant indicated that his medical information was different to that being received from the respondent’s doctor.  The respondent suspended giving any dates when Doctor Glasgow said that he was waiting for more information from Mr McBride.  The tribunal’s view is that it was reasonable for the company to seek to have the claimant’s contract performed in its normal way because in general, working shifts was important to the management of their business, due to the 24-hour nature of the business and it was desirable for employees to work their contracted hours.

51.	In summary, therefore, the tribunal finds that the claimant has failed to prove detriment.  If the claimant had proved enough for disability-related discrimination the tribunal would have regarded such treatment as justified.

52.	The claimant’s claims are therefore dismissed in their entirety.

Chairman:

Date and place of hearing:	18 - 19 February 2008, 17 - 18 April 2008, 
3 September 2008 Belfast.

Date decision recorded in register and issued to parties: