Penton v Northern Ireland Court Service [2009] NIIT 2166

THE INDUSTRIAL TRIBUNALS

CASE REF: 2166/02

CLAIMANT: Linda Penton

RESPONDENT: Northern Ireland Court Service

DECISION

The unanimous decision of the tribunal is that the claimant’s claims of disability discrimination, unfair dismissal, and unlawful deductions from wages be dismissed.

Constitution of Tribunal:

Chairman: Mr D Buchanan

Members: Mr J Boyd

Mrs T Kelly

Appearances:

The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Campbell Stafford, Solicitors.

The respondent was represented by Mr M Wolfe, Barrister-at-Law, instructed by Crown Solicitor’s Office.

1.	(i)	The claimant, Ms Penton, is a civil servant, employed by the Northern Ireland Court Service. She has brought claims against the respondent alleging unfair dismissal, unlawful deductions from wages, disability-related discrimination and failure to make reasonable adjustments under the Disability Discrimination Act 1995. At all relevant periods, the claimant suffered from clinical depression, and the respondent has accepted that she is a disabled person within the meaning of the 1995 Act.

	(ii)	At a Case Management Discussion, held on 25 November 2004, the parties agreed the issues for determination by the tribunal. These were subsequently amended, as set out in a letter from her solicitors dated 24 March 2009. Copies of the Record of Proceedings and the letter are set out at an annex to this decision.

	(iii)	This case has been much delayed. A previous hearing before another tribunal was aborted. A purported compromise agreement was entered into by the parties and its validity was subsequently successfully challenged by the claimant at a pre-hearing review. This was followed by a requisition for a case stated to HM Court of Appeal, which was not proceeded with. We have not looked at any documents relating to, or decisions arising out of, these previous matters. The issue of our own decision in this case was regrettably delayed by the serious illness of one of the panel members. The representatives and parties were kept aware of this situation, and we are grateful to them for their patience and understanding.

	(iv)	In order to determine this matter the tribunal heard evidence from the claimant, Ms Penton, and from Mr Paul Miller, a Consultant Psychiatrist on her behalf. It heard evidence from the following on behalf of the respondent:-

Dr Tony McGread, a specialist in occupational health;

Ms Karen Martin, Human Resources Services Manager in the Northern Ireland Court Service;

Ms Mandy Kilpatrick, Business Manager at Belfast Combined Courts at the relevant time;

Ms Mary O’Kane, Human Resources Manager, Northern Ireland Court Service;

Mr Gerry McLaughlin, formerly the claimant’s business manager in Criminal Operations Branch, Northern Ireland Court Service;

Ms Paula Stevenson, previously Personnel Officer in the Human Resources Unit, Northern Ireland Court Service; and

Mr George Russell, formerly the claimant’s line manager in Criminal Operations Branch.

		Additionally, the tribunal had regard to documentary evidence to which it was referred by the parties. It finds the facts set out in the following paragraphs.

2.	(i)	The claimant started work with the Northern Ireland Court Service on 17 November 1980. In December 2000, prior to the events giving rise to these proceedings, she had been working as a court clerk in Belfast Petty Sessions. She was working in a busy, operational court setting, and was clearly very good at her work. She was getting Box 1 markings and was able to perform to a very high standard, despite admitted stresses in her personal life. She saw herself, not without justification, as an expert in her line of work as a court clerk.

	(ii)	In December 2000 she was promoted from her then grade (Level 3) to a Level 2B post in Criminal Operations Branch. This promotion followed a board where she had competed against other candidates.

	(iii)	In January 2001 she took up her new post, as a policy analyst in Criminal Operations Branch at Northern Ireland Court Service Headquarters. It was a small unit, with three members of staff. Her business manager there was Mr Gerry McLaughlin, and her line manager was Mr George Russell, though the latter was on sick leave with work-related stress for the first five months of her appointment.

	(iv)	Mr McLaughlin, in his witness statement, described the role played by Criminal Operations Branch:-

“Its outputs reached the more senior levels in the Court Service and went beyond that into senior levels in the Criminal Justice Sector generally.

Included among the main activities of the branch were:-

· research and analysis of legislative and policy changes affecting the operation of the criminal courts;

· the transmission of findings to the Departmental Lawyers in Policy and Legislation Division;

· provision of reports and briefings to the Director of the Court Service, the Director of Operations, the Court Service Management Board and, on occasions, Ministers;

· supporting the Department’s role in the wider criminal justice system – more particularly, in its contribution to the work of the Northern Ireland Criminal Justice Board, the Criminal Justice Issues Group and allied bodies. As regards the [claimant’s] post, one of its key components was the production of properly researched, competently analysed and well written reports and advice. Attention to detail and accuracy were matters of considerable importance in such documents.”

	(v)	One of the key skills for the post was communication, and the job description made it clear that work often had to be conducted within demanding and conflicting timescales.

	(vi)	During her time in the post the claimant worked on projects relating to the Terrorism Act, and the closure of HMP Maze. She characterised the post as a quiet research-based post, and implied that she had time on her hands compared to her subsequent post in Lisburn which was ‘a busy office with tight daily deadlines[which] put [her] under considerable pressure’. The tribunal is conscious here that the comparison is not of like with like, but would take the view that the post of policy analyst in Criminal Operations, which was near to the centre of the Court Service’s activities, was more demanding than the lower graded post at Lisburn court. We think that this is apparent from the nature of the duties of the post which we have set out above.

3.	(i)	At a job appraisal review with Mr Russell on 24 September 2001 the claimant was told that she had done a good job on the Terrorism Act and Maze Prison projects, and that she had made valued contributions to work on the Youth Justice Bill and in relation to fixed penalty revenues. However, concerns were expressed about her written presentation, for example in relation to lack of detail in some respects and problems with structuring. Disappointment was expressed about her work on the Street Trading Act, and Mr Russell noted that her enthusiasm was waning, something which the claimant’s attributes to a deterioration in her mental health. She was, however, told that she had the necessary qualities and experience to perform the duties of the post to an acceptable standard. She was given a Box 3 marking with the proviso that there should be an improvement in her written presentations by the time of the next review in December of that year. (That review did not in fact take place because the claimant had gone off on sickness absence by then.)

	(ii)	The claimant accepts that at the meeting of 24 September 2001, Mr Russell had tried to give her support and reassurance. However, she did not fully accept management’s criticism of her work, particularly in the light of the fact that initially she appeared to have got on quite well and that her work had been commended. In fairness to the claimant, it should be noted that she had had no formal training for her newly promoted post, and there was obviously some lack of supervision because of Mr Russell’s own absence from work on sick leave to which we have already referred at Paragraph 2(iii) above.

	(iii)	Another meeting between the claimant and Mr Russell took place in October 2001. It is clear that the latter still had concerns about the claimant’s written work at that stage. However, he again reassured her that she had the necessary skills, experience and knowledge to succeed in criminal policy work. The claimant nonetheless expressed doubts about her suitability for the post, because of the way in which her written work was coming back to her. She also stated that when she applied for the post, she did not realise that so much emphasis would be placed on written communication.

	(iv)	Unfortunately, at this time the claimant’s health deteriorated – she was suffering from a depressive illness – and on 15 October 2001 her doctor certified her as unfit for work. She did not return to work until 16 September of the following year.

4.	(i)	On 12 November 2001, the claimant met with Dr Anthony McGread, the occupational health adviser to the Court Service. She told Dr McGread that she had had problems at Belfast Magistrates’ Court. She had been depressed for four years and had been taking alcohol to help her sleep. She also had difficulties with another employer, the Police Service of Northern Ireland (PSNI), with which she was a part-time reservist.

	(ii)	In a report dated 19 November 2001 to Court Service Personnel Branch, Dr McGread stated that the claimant’s underlying medical condition was ‘multi-functional’ and had been present for some time, possibly several years. While some aspects of her work with the Court Service may have added to her condition, it was not the primary cause of it. He accepted that the core of his medical opinion was that the claimant’s stress factors were due to external factors, ie her work with the PSNI. He went on to say that ‘given the nature of [the claimant’s] condition, I suspect dealing with these issues will be difficult and prolonged’. He noted an acceptance by the claimant that while she had managed well initially in the promoted post, her performance had deteriorated. While the matter would be kept under review, he was of the view that in the long term it was difficult to know what type of work would suit her best. He stated that ‘[t]he transfer from the Magistrates Court in my view was of no assistance to her wellbeing’ but did, however, go on to say that ‘[i]deally one would help that with continued treatment and adequate time that she could return to the post of Policy Analyst. Only time will tell’.

	(iii)	In view of Dr McGread’s statement that the transfer from Belfast Petty Sessions had not been of assistance to the claimant’s wellbeing, it is significant to note that in subsequent conversations with various other people (Mr Simpson, Staff Support Worker, Avril Brown, a counsellor, and Mandy Kilpatrick, Business Manager, Belfast Magistrates Court) the claimant herself talked in terms of a transfer back to court work. There seems to have been a recognition on her part that because of her health problems she was experiencing difficulties in her promoted post. She was also exploring other employment opportunities. In late January 2002, she considered applying for a Level 2A Information systems post in the Northern Ireland Office, but did not do so because she was ineligible, having spent less than 18 months in her promoted post with Court Service.

5.	(i)	Mr McLaughlin who was the claimant’s Business Manager, and against whom she makes, as part of her claim, allegations of bullying and harassment, appears to have received a briefing on, or at least become aware of, Dr McGread’s report. Although Mr McLaughlin had been on the panel which appointed the claimant, she came to the view that he wanted her out of his section. In support of this she relies on conversations which she had with Mr Russell, in which he allegedly made comments to her about Mr McLaughlin and his attitude to her, and to e-mail traffic within Court Service initiated by Mr McLaughlin when it became clear that she was going to be off work for some time.

	(ii)	As far as Mr Russell is concerned, we accept his evidence that Mr McLaughlin left him to manage the claimant and did not interfere, and that the claimant has misrepresented the content of conversations she had had with him.

	(iii)	The claimant alleges that the trail of e-mails from Mr McLaughlin appears to suggest that a view quickly formed at Court Service HQ that she would not, or should not, be coming back to her 2B post. On 20 November 2001, following on Dr McGread’s report, Mr McLaughlin sent an e-mail to a colleague in the Court Service. In it he stated:-

“I … believe that, on the ground that [Ms Penton] clearly cannot cope with the work in Criminals Ops [Dr McGread] has recommended that consideration needs to be given by the Department to what work may be suitable for her when she is eventually able to return. All things considered, it seems clear that she cannot come back to me. That being the case I should be grateful if we could speak about a replacement at your very earliest convenience.”

		In a subsequent e-mail of 5 December 2001 to Paula Stevenson of HR he enquired if certain matters arising out of Dr McGread’s report on the claimant had been clarified with him, ‘primarily in relation to [her] possible transfer out of Criminal Ops’. In a further e-mail to Paula Stevenson of 19 December 2001, he referred back to the one sent on 5 December 2001, and asked her to make Dr McGread aware of an expression of interest by the claimant to Mandy Kilpatrick of a transfer to a post in Belfast Magistrates’ Court. (We deal with this at Paragraph 6 below.) The claimant characterised Mr McLaughlin’s attitude as unsympathetic, and precipitate, in that he was looking to transfer her out of his branch to facilitate its smooth running. According to her, he gave no consideration to her wellbeing as a member of staff. Mr McLaughlin did not discuss the issue of a transfer with the claimant herself. She was on sick leave at that time.

	(iv)	As against this, the claimant conceded that around the same period of time – on 28 November 2001 – when Mr McLaughlin spoke with her and discussed her circumstances, he was reasonably sympathetic.

	(v)	We are satisfied that Mr McLaughlin did not see the claimant’s illness as an irritant and an inconvenience which could be resolved by getting rid of her. He regarded it as a matter of seriousness both from the point of the organisation, and something to be resolved by the Human Resources Unit. We reject any suggestion that he was not sympathetic to the claimant, but it was his experience that staff who went off for long periods with stress-related and similar problems tended not to come back to the same branch. It also had to be remembered that he was the head of a small unit, whose staff performed extremely demanding jobs, and it had recently been under pressure because of Mr Russell’s lengthy absence. At this time, notwithstanding any sympathy he had for the claimant’s situation, he clearly had genuine concerns about the proper and efficient functioning of the section for which he, as Business Manager, carried responsibility.

6.	(i)	In December 2001 the claimant attended various Court Service Christmas functions. She had received advice that attending such functions and meeting and interacting with friends and colleagues would help her recovery. She had spoken to the Welfare Officer about attending such functions and he did not think that it would be a problem.

	(ii)	This came to Mr McLaughlin’s notice and he sent the following e-mail to Paula Stevenson on 13 December 2001:-

“I understand that, notwithstanding her illness, Linda has been attending Christmas parties in Belfast Magistrates’ Court. My own view is that this is entirely inappropriate, but I would welcome the official HRU line … I also think that this should be brought to the attention of Dr McGread.”

		He subsequently reiterated these concerns, and his view that it should be brought to the attention of Dr McGread, in further e-mails to HRU on 2 January 2002, the day before a scheduled appointment for the claimant with Occupational Health.

	(iii)	Around the same time, the claimant attended a Belfast Courts‘ social function. At it she spoke to Mandy Kilpatrick, the Belfast Courts Business Manager, about the possibility of a return to Belfast Magistrates’ Court. Any such transfer would not, of course, have been within Mrs Kilpatrick’s gift, as there would have had to have been a vacancy, and the proper procedures would have to have been employed to fill any such vacancy. According to the claimant, Mandy Kilpatrick proceeded to launch a verbal attack on her, and told her that her behaviour was a disgrace, ie she was out drinking at social functions when on sick leave, and that she was setting a bad example to staff. Ms Kilpatrick also allegedly told the claimant that she would not have her back in Belfast. There is no doubt that some incident did take place between the claimant and Ms Kilpatrick. The latter, however, alleges that it was the claimant who was aggressive and abusive towards her. She did make a complaint about the claimant’s behaviour to Personnel at the time, but there was no disciplinary follow-up, because of the claimant’s absence on sick leave. At the time of the hearing, and looking back on this incident, Ms Kilpatrick placed it in the context of the claimant’s illness, and the fact that the claimant had taken too much to drink. The claimant had been drinking at this function. Indeed, on her own admission, she had been drinking excessively at that period of time. We find that Ms Kilpatrick’s account of what took place is the more credible one, and consequently we reject the claimant’s allegation that Ms Kilpatrick’s conduct amounted to harassment. The claimant did not in any event pursue the matter. Her reason for not doing so in December 2001 was because she felt unable to deal with the matter at that time. Although she was well enough to deal with it in October 2002, she said she did not do so at that stage, because she was wary of the consequences of doing so. However, she showed no similar reticence on such ground in making allegations of bullying and harassment against Mr McLaughlin.

	(iv)	On 17 December 2001 she had a conversation with Mr McLaughlin about her attendance at social functions. Although the claimant again stated that she found him unsympathetic, he did tell her that he had no objection to her attendance at social functions, that he would not question any medical advice given to her about attendance at such even events, and that it was entirely a matter for her whether or not she attended them. It is clear to us that Mr McLaughlin did have reservations about the claimant attending social functions while she was off ill. However, we do not attach great significance to this and we certainly do not see it as evidence of bullying or his part. It seems to us that this is a matter on which views can reasonably differ. The claimant cannot be faulted for attending functions when she had received advice that this could assist her recovery. Equally, it has to be recognised that some people do have very genuine misgivings, and feel uncomfortable, about indulging in social and recreational activity while on sick leave from work, not least because such conduct, even if beneficial to the person concerned, runs the risk of being misunderstood and attracting unfavourable comment from others who are not fully aware of the complete picture. We think that Mr McLaughlin’s view of the matter came to no more than this, and that it was a perfectly reasonable view for him to hold. We also note that later – on 15 January 2002 – the claimant spoke to Mr McLaughlin about going on a skiing holiday. The medical advice was that this would be good for her. On this occasion she found him very encouraging, and he thanked her for keeping him updated about her progress on a regular basis and told her that he did not expect her to do this. We therefore reject emphatically any suggestion that Mr McLaughlin bullied or harassed Ms Penton. In these circumstances it is not necessary for us to deal with the respondent’s contention that any such complaints are time-barred.

7.	(i)	On 2 January 2002, George Keatley, who was at that time the Director of Operations with the Court Service, and who had overall responsibility for Criminal Operations Branch, communicated to Mary O’Kane, the Head of Human Resources, alluding to suggestions from others that the claimant was not keen to return to her current post. He wrote:-

“ … [The claimant] was promoted and transferred to her present post as part of a job specific exercise. Gerry McLaughlin has serious reservations in relation to her performance since joining his branch. If Linda is to be transferred on a BMI recommendation or otherwise then I fear serious consideration must be given to her transferring as a Level 3 member of staff. I am simply flagging this up lest someone takes a simplistic view that a return to the courts at Level 2B in the only option.”

(ii)

On 3 January 2002 the claimant attended an appointment with Occupational Health. She saw Dr Fenwick. He found no specific cause for deterioration in her health specifically related to the Court Service, and overall noted an improvement. Her ability to attend social functions, which had been the source of some controversy, was consistent with that improvement. In his subsequent report of 14 January 2002 he noted:-

“[Ms Penton’s] own perception would be that it would be helpful if she could return to a post in the courts where she previously worked and felt that she was able to cope with the duties there, though she has anxieties about what implications this may have in terms of her promotion status and loss of seniority. From the medical viewpoint, generally speaking it would be helpful if she were able to return to a post where she perceived a reduce general level of pressure and tasks initially that she felt familiar with and felt comfortable conducting on a regular basis. As far as I can gather this was the main reason behind her request for a possible return back to the courts.”

		The claimant did, however, feel that some of these issues – her attendance at Christmas functions and the questions of her possible return back to the courts – were being driven by Gerry McLaughlin.

	(iii)	A Case Conference concerning the claimant also took place in January 2002. The key issue, according to Dr McGread, was the claimant’s part-time employment (as a PSNI reservist). Dr McGread also asked that a letter be forwarded to him by Gerry McLaughlin through HR outlining arguments in favour of the claimant transferring away from Criminal Operations Branch.

	(iv)	Dr McGread again saw the claimant on 19 March 2002, and provided a report on 26 March 2002. In that report he identified the claimant’s problems with the PSNI as the main reason for the deterioration in her mental health, which in turn impacted on her employment with Court Service. Her problems in the PSNI had been going on for four years and centred round allegations that she had been subjected to bullying. Dr McGread’s impression was that ‘this issue had had a major effect on her psychological well-being’, and that transferring to a new demanding post had added to her difficulties. Subsequently, on 12 April 2002, when the claimant met with Mr Simpson, a Welfare Support Officer, she accepted that her problems were multi-functional and that her problems with the police reserve were inextricably linked to those she was experiencing in the Court Service. Dr McGread identified ‘stressors’ in her work with Court Service. These revolved round training (which the claimant considered inadequate), deadlines (which she had difficulty meeting), long-term project work (where she thought the absence of short-term goals made it difficult to see when progress was being made), and a perception on her part of lack of support from management. Dr McGread’s view was that it was unlikely that the claimant would be fit to return to her 2B post in Criminal Operations because of her medical condition. Moving to that post had been responsible for a significant deterioration in her mental health and had led to performance problems. He thought that pulling her back in that post would have led to a further deterioration in her mental health as the problems with the police, family problems and her underlying medical condition were all still there. When he discussed with the claimant what the future held in relation to her employment with the Court Service she said it was to “go back to [the] old job”. However, before he expressed a final opinion, management were asked to consider the validity or otherwise of these stressors at work, and to see if any remedial action could be taken.

8.	(i)	On 17 April 2002, Paula Stevenson sent an e-mail to Gerry McLaughlin summarising Dr McGread’s report of 26 March 2002, and on 30 April 2002 a meeting was held following on that report. The claimant alleges that at that meeting the issue of reasonable adjustments was not considered in line with Dr McGread’s report. However, we are satisfied that the matter was properly considered. Karen Martin, of HRU, considered the stressors identified by Dr McGread and how such stressors had been addressed in the past. She concluded that the claimant had been provided with adequate training and management support in her Level 2B post up until the time she went off work. Deadlines, as raised by Dr McGread, were discussed, but these did not appear to have been a problem of any significance for the claimant. Another relevant factor for management was that Criminal Operations was a small unit, which made it difficult to make any adjustments which involved re-distributing work.

	(ii)	In early May, the claimant indicated to Mr McLaughlin that she hoped to return to work soon, and in view of what appeared to be her imminent return to work, Paula Stevenson of HRU subsequently made enquiries of Dr McGread if the claimant could return to her 2B post in Criminal Operations and, if so, what adjustments could be made to accommodate her. Advice was also sought from the Equality Commission. Court Service was informed that when adjustments could not be made which would enable an employee to return to her or her job, a transfer to other work, whether internal or through downgrading, would not breach the Code of Practice on disability discrimination.

	(iii)	Dr McGread saw the claimant on 27 May 2002, and produced a report on 29 May 2002. This report was of particular importance in the decision ultimately made about the claimant’s future, ie to downgrade her. At this stage the doctor’s advice was that the claimant’s condition was likely to remain for 12 months and should be considered a disability within the meaning of the Disability Discrimination Act 1995. At the time of preparing the report, Dr McGread had a letter from Mr McLaughlin and a note of the Case Conference of 30 April 2002 which he had attended. The claimant makes the criticism that he did not have her job description or detailed information relating to her duties. However, it has to be borne in mind that Dr McGread knew of the differences between Level 2B and Level 3 posts in the Court Service.

	(iv)	Dr McGread set out the following conclusions in his report:-

· the claimant was not fit to return to her post, or to undertake another post at that grade, given the demands of the post. This would remain the case until her other problems (external to the Court Service) were resolved;

· she should not return to her post in the short term;

· any attempt to alter or adjust the post would dramatically change the nature of the job itself. Adjustments and alterations to the post were ultimately a matter for management;

· she could return to a post similar to the one she was promoted from. This would have the advantage of having less of the demand inherent in the Level 2B post, and in addition would return her to a post she was familiar with;

· there should be a rehabilitation plan tailored to the post she left.

(v)

He also noted that the claimant was worried about returning to the 2B post. Her preference was for a return to court work. He commented:-

“I fully concurred with her view given that Level 2B required the mental aptitude and cognitive ability to work under pressure coping with the demands of higher profile post with greater responsibility and autonomy particularly related to strategic planning, problem-solving and managing change. It was my view it would be of detriment to Ms Penton’s health to attempt to undertake such work as the framework of the post of Level 2B compared to Level 3 is also underpinned by the ability to copy effectively and efficiently with conflicting demands and timescales.”

		The claimant’s own diary entries at that time reflect her conversations with Dr McGread and it appears that she accepted that view.

9.	(i)	Dr McGread’s report of 29 May 2002 was provided to Karen Martin in HRU. It was her responsibility to consider it and to take appropriate measures to implement it. The approach which she adopted was discussed with, and approved by, Mrs O’Kane, who was the Human Resources Manager with Court Service. Performance issues were not a factor in her decision, which was based on medical advice. Mrs Martin decided, in the light of that advice, that it was not appropriate for the claimant to return to Criminal Operations. She considered other Level 2B posts, both court-based and non-court based. However, she was aware of the inherent pressures and demands of 2B posts, which involved planning and prioritising work, problem-solving, reacting to frequently changing demands, and managing staff. Such post holders were required to fulfil these functions with limited supervision. She thought that the level of adjustment required to place the claimant in such a post ‘would fundamentally change the nature and possibly the grade of the job’, as well as being detrimental to her health. As far as the post in Criminal Operations was concerned, Mrs Martin was also conscious that it involved working in a very small team.

	(ii)	She also considered allowing the claimant to continue at Level 2B but to work in another post at a lower grade. However, she formed the view that this was not appropriate because of the medical prognosis in relation to the anticipated period of time for the claimant’s recovery. Any idea of allowing the claimant to return to her previous post in Belfast was discounted because it was felt that there would be difficulties in working relationships following the incident involving Mandy Kilpatrick at the Christmas party the previous December. There is also some evidence that prior to leaving Belfast on promotion, the claimant was experiencing problems at work. She spoke of ‘people turning against [her]’ and of their unfavourable attitude towards her. A vacancy had arisen in Lisburn for a court clerk. It was a Level 3 post and Mrs Martin decided that the claimant should go there. This was, of course, a demotion, and Mrs Martin realised the significance of this for the claimant. It is perhaps convenient to state at this stage that there is no evidence from which we can infer that any failure by the respondent to consider returning the claimant to Belfast was for a reason related to her disability.

	(iii)	On 5 June 2002, Paula Stevenson informed Gerry McLaughlin that the claimant would not be going back to Criminal Operations and that she would be returning to a post similar to the one she had been promoted from. Subsequently, on 18 June 2002 the claimant had a meeting with Karen Martin and Lisa Doyle. At the meeting she was given a copy of Dr McGread’s report and told of the decision to send her to a Level 3 post in Lisburn – an effective demotion – and the reasoning behind it.

	(iv)	The claimant is highly critical of the meeting of 18 June 2002. Her case is that the decision was presented to her as a fait accompli, and that Dr McGread’s reports which were based on information and assumptions supplied to him by the Court Service, were used to rubber-stamp what was effectively a pre-determined decision on the part of the managers. In general, there was a failure to consult, and more specifically a failure to consider any adjustments (in terms of returning for a trial period to her 2B post, shorter hours, or training) or what support could be offered, or to consider a lateral transfer. She had no chance to provide any input into the decision, to challenge any findings or recommendations, or to seek and provide an independent medical opinion. The contrary view, taken by the respondent’s managers, was that it was clear from the medical evidence that the claimant could not go back to the Level 2B post, and that no adjustments could be made which would help. Notwithstanding that the decision to downgrade and transfer the claimant was a unilateral one, and that the post in Lisburn had been identified as a suitable one, Mrs Martin accepted that the claimant needed time to consider the matter, and it was agreed that the claimant would consider the issues and some back to her.

	(v)	On 11 July 2002, Mrs Martin received a letter from the claimant’s trade union representative, Mrs Captain. This stated in part that Ms Penton’s “ … main concern is the downgrading and while she may not in principle object to the transfer, she does not wish this to be at her previous grading ie Level 3”. This is consistent with what the claimant herself had been saying (to her Staff Welfare Officer, to her counsellor, and to Mandy Kilpatrick) and with the view formed by Dr McGread and by management. The claimant’s primary concern was with her demotion. It was subsequently indicated on her behalf that she would return to work at Lisburn, but under protest.

	(vi)	On 31 July 2002 a medical report was provided from Dr Huda, a psychiatrist, who had been treating the claimant on a regular basis since January of that year and who had diagnosed her as suffering from clinical depression. Dr Huda stated:-

“I understand that in the new rehabilitation plan, you suggested that [the claimant] work in a previous job in which she was comfortable and entirely familiar. Mrs Penton’s description of her previous job does not appear to be one in which she would be comfortable. Indeed, this seemed to generate a lot of stress for her. This is apart from the fact that she would be re-graded to a lower position and also the subsequent financial implications she would have, would not, I feel, be beneficial to her current treatment and continued progress of her mood.”

		Dr Huda’s report was effectively an argument in favour of the status quo – the claimant should remain on a Level 2B post.

10.	(i)	Mrs Martin held a return to work interview with the claimant and Mrs Captain on 9 September 2002. The latter reiterated their objections to the claimant returning to work at Level 3. However, they did not suggest any other Level 3 post which might be suitable, or suggest any adjustments which could be made to a Level 2B post to enable Ms Penton to return to work at that grade. Arrangements to facilitate Ms Penton’s return to work at Lisburn were discussed and agreed. Ms Penton would return to work on a part-time basis and gradually increase her hours to full-time. She would be paid on a full-time basis, and there would be a ‘mark-time’ arrangement to her salary, ie she would be paid her Level 2B salary, but would not enjoy any salary increase until Level 3 caught up with it. There seems to be a dispute as to whose suggestion it was that the claimant be paid on a mark-time basis. However, irrespective of whose suggestion it was, the arrangement was one which the respondent permitted.

	(ii)	On 16 September 2002, the claimant returned to work at Lisburn, and her progress was monitored by Dr McGread on an ongoing basis. He saw her on 17 October 2002, shortly after her return to work, and provided a report on 25 October 2002. At that time she was performing mainly office-based duties and was doing work which she said she was both ‘familiar with and good at’. She appeared to be managing with and felt ‘lifted and upbeat’. She acknowledged that her medical condition had improved, but the focus of her discontent remained her demotion to Level 3, and what she saw as unfair treatment at the hands of her employer. Following an appointment with her own psychiatrist, Dr Miller, on 28 October 2002, he commented:-

“[The claimant] has now started back … on full hours and reports doing well in her current placement of work and is enjoying this greatly. Her case in regards to industrial tribunal is ongoing, but she appears to be coping well with this …

… [S]he has a very good prognosis and should return to full health and function.”

Subsequently, in February 2003 the claimant again sated, this time to her own GP, that she was enjoying work.

(iii)

From her return to work in 2002 until the date of the proceedings before the tribunal, the claimant has continued to work in Lisburn, performing her duties, albeit there have been intermittent absences, and some evidence of difficulties at work from time to time.

It is clear, however, that issues remained until comparatively recently in relation to her other employment with the police service, and these, together with the tribunal case, were matters of considerable concern for her.

She saw Dr Miller again on 28 April 2004 and on 12 June 2009. He provided an updated medical report to her solicitors for the purposes of her tribunal proceedings. Dr Miller referred to her history of ‘recognisable psychiatric illness in the form of depression, moderate severity’, and stated that at the time of assessment she was well. He had Dr McGread’s previous report before him but considered that the documentation from the former ‘appears to minimise the role of the pressure that she reports from her work in the Court Service’.

The claimant’s negative thoughts were centred on how her return to work within the Court Service was a ‘demotion’ rather than a helpful part of a rehabilitative process. Dr Miller stated:-

“It continues to be my opinion … that the events around her return to work and her move from a 2B post to a 3 has had a significant negative impact on Ms Penton’s mental health. At the time I saw her [in October 2002], I felt that she had a good prognosis for a full recovery. However, the statement of the risk of her going to a lower post made by Dr Huda has played out. It is therefore my opinion that had she been assisted with a supported return to her post of a 2B she would have continued to improve in her mental functioning. From a mental health point of view, as sated in my previous report … I see no medical reason why she could not have returned to her previous post.”

11.	(i)	Having set out the facts as found by the tribunal we now turn to consider the respective submissions of the parties in the light of the relevant law. In short, the claimant alleges that she was subjected to unlawful discrimination for a reason related to her disability and because of a failure on the part of the respondent to comply with its duty to make reasonable adjustments. These claims revolve around the decision of Court Service, when the claimant returned to work after long-term sick leave, not to place her in the former 2B post in Criminal Operations, but to transfer her to Lisburn court office in the lower grade Level 3. The claimant also contends that this effective demotion also constituted unfair dismissal. Related to these complaints are allegations that a transfer to Belfast was blocked, and that she was harassed and bullied, principally by her former line manager, Mr Gerry McLaughlin.

	(ii)	The respondent’s defence to these claims is that the claimant, by reason of her medical condition could not return to her Level 2B post. She was unable to meet the requirements of that post, and there were no adjustments which it would have been reasonable to make which would have enabled her to go back to it. The respondent’s approach to this matter was to return her to work at a lower grade, while making adjustments which enabled her to do that. The respondent’s case is that this was also necessary to prevent the claimant from suffering any deterioration in her health, and that in these circumstances any allegation of unfair dismissal is unfounded. Allegations of bullying and harassment are denied.

12.	(i)	The duty to make reasonable adjustments is now set out in Section 3A of the Disability Discrimination Act 1995, following its amendment by the Disability Discrimination Act 1995 (Amendment) Regulations (Northern Ireland) 2004. Sub-section (2) provides that:-

“ … a person … discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed upon him in relation to the disabled person.”

(ii)

Section 18B(2) of the 1995 Act provides the examples of steps which a person may need to take in relation to a disabled person in order to comply with the duty to make reasonable adjustments. These include:-

“(b) allocating some of the disabled person’s duties to another person;

(d) altering his hours of work or training;

(e) assigning him to a different place of work or training;

(f) allowing him to be absent during working or training hours for rehabilitation, assessment, or treatment;

(g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person) … .”

Whether something is a reasonable adjustment is for the tribunal to decide, objectively, on the facts of the particular case (see : Smith v Churchill Stairlifts PLC [2006] IRLR 41 CA).

The width of the concept is apparent from the words of the section, and in Archibald v Fife Council [2004] IRLR 651, which was a case concerning the position under the legislation of a disabled employee who had become incapable of doing the job for which she was employed but who could have done another job in the same organisation, the House of Lords considered the transfer provision set out at Section 18B(2)(c), Baroness Hale stated, at page 660:-

“Section 18B(2)(c) merely refers to ‘an existing vacancy’. It does not quality this by any words such as ‘at the same or a lower grade’. It does refer to ‘transferring’ rather than ‘promoting’ her, but as a matter of language a transfer can be upwards as well as sideways or downwards.”

Notwithstanding the width of this provision it is clear that the duty to make a reasonable adjustment is not limitless. At page 659, Baroness Hale stated:-

“It is … common ground that employers are only required to take those steps which in all the circumstances it is reasonable for them to have to take. Once triggered, the scope of the duty is determined by what is reasonable, considered in the light of the factors set out in Schedule 6(4) …

… There is no positive discrimination other than addressing the impact of the disability on her ability to do a job which she is otherwise well filled to do. This duty cannot arise when the disability means that she cannot do the job at all and there are no adjustments to the arrangement for that job which can make any difference.”

(iii)

The Disability Code of Practice (Employment and Occupation) states:-

“An employer should consider whether a suitable alternative post is available for an employee who becomes disabled (or whose condition worsens) and where no reasonable adjustment would enable the employee to continue doing the current job. Such a post might involve re-training or other suitable adjustments … for the new post.” (page 84)

It continues (at page 91):-

“ … [I]f an adjustment is one which it is reasonable to make, then the employer must do so.”

However:-

“{I]t is unlikely to be reasonable for an employer to have to make an adjustment involving little benefit to the disabled person.” (page 93)

The Code also provides that:-

“{i]f making a particular adjustment would increase the risks to the health and safety of any person (including the disabled person in question) then this is a relevant factor in deciding whether it is reasonable to make that adjustment. Suitable and sufficient risk assessments … should be used to help determine whether such risks are likely to arise.”

13. At paragraph 9 above, we have summarised the evidence of Karen Martin, of HRU, which sets out how the respondent dealt with the issue of reasonable adjustments in Ms Penton’s case.

It is the claimant’s case that she could have returned to Criminal Operations with adjustments such as management support or more training. This was to be seen against the background that she and management held conflicting views of both the nature of the post and its inherent demands.

While Mrs Martin conceded in her evidence that the claimant could have been sent on more training courses, we nonetheless consider that this would have provided little, if any, benefit to the claimant. We also consider that extra support from management was not practicable, because of the level of the post and because of the small number of people in the section.

It was also considered that the demands of the post involved further risk to her health. A return to the 2B post in Criminal Operations was also not in keeping with the claimant’s own expressed views at the time. In particular, she had expressed reservations about returning to the 2B post to Dr McGread, though significantly not to her own medical adviser, Dr Miller. She had been good at court work, was familiar and comfortable with it, and wanted to return to it.

14.	(i)	A further criticism made by the claimant is that there was no consultation with her before Mrs Martin’s decision, communicated on 18 June effectively to demote her. The decision, which was presented to her as a fait accompli, was based largely on the evidence of Dr McGread, who, it is suggested, was essentially little more than a cipher in the process, as Court Service had fed him the information on which he based his recommendations, and which in turn made those recommendations, particularly the decision to demote the claimant, almost inevitable.

	(ii)	We reject any such view of how Dr McGread reached his conclusions. He was an experienced Occupational Health physician and we do not accept that consciously or unconsciously he told Court Service what its managers wanted to hear. There was clearly a lot of interaction, involving the seeking, and exchange of, information between Dr McGread and Court Service, as one would expect in a difficult case of this nature. It must also be borne in mind that Dr McGread, by virtue of his experience, had knowledge of the organisational structure of Court Service, the various levels of post, and the duties associated with them. Ultimately, Dr McGread considered the information provided by management, and in the light of his own findings, gave advice and made recommendations. It was for Court Service management, in the light of that, to make a decision on Ms Penton’s future. There was nothing precipitate about Dr McGread’s advice. On the contrary, he acted with caution. He was present at the meeting on 30 April 2002. At that stage he was of the opinion that the claimant’s future lay in court work. However, at that stage he refrained from expressing a determinative view, and asked management to consider any stressors at work affecting the claimant. When he saw her subsequently on 27 May 2002, she again expressed the view that she wished to return to court-based, or similar work. His report of 29 May 2002, is dealt with at paragraph 8 above.

	(iii)	As far as Mrs Martin’s failure to consult with the claimant is concerned, the general position in this regard is set out in *Tarbuck v Sainsburys Supermarket Ltd [2006] IRLR 664*. One of the grounds on which the employment tribunal had found that the employer had failed in its duty to make a reasonable adjustment was that there had been a failure to consult with the claimant to agree particular measures to be taken to eliminate her disadvantage in applying for interviews for internal job vacancies. The Employment Appeal Tribunal (‘EAT’) held that there was no separate and distinct duty to consult. Elias J, President, stated, at page 673:-

“ … The only question is, objectively, whether the employer complied with his obligation or not … If he does what is required of him, then the fact that he failed to consult about it or did not know that the obligation existed is irrelevant. It may be an entirely fortuitous and unconsidered compliance; but that is enough. Conversely, if he fails to do what is reasonably required it avails him nothing that he has consulted the employee … .”

		The learned judge went on to state that it would be good practice for an employer to consult and that it would potentially jeopardise his position if he failed to do so. The EAT was reinforced of its view that there was no duty to consult by the fact that the examples of reasonable adjustment set out in the Act of 1995 did not include that duty. If there had been such an obligation then it would have expected it to have been stated in very clear terms.

	(iv)	In any event in this case, notwithstanding that Karen Martin did not consult with the claimant before meeting her on 18 June 2002 to tell her of the decision to transfer her to Lisburn at Level 3, it is clear that her decision was an informed one. She was aware of the views that the claimant had been expressing to others, she had the medical report from Dr McGread which in turn reflected these views as well as giving detailed accounts of the claimant’s medical condition and the prognosis, which was that her recovery was likely to be lengthy. She was also aware of the various posts in Court Service, the demands of work at the various levels, and the level of support given to the claimant before she went off on sick leave. As we have noted at paragraph 9(iv), Mrs Martin accepted that the claimant needed time to consider the transfer to Lisburn, and gave her the opportunity to come back to her. As we have recorded, the claimant and her union representative made no alternative proposals.

	(v)	We are therefore satisfied that the respondent’s decision to transfer the claimant to Lisburn at Level 3, together with the arrangements which were made to facilitate her return to work there, were objectively considered, a reasonable adjustment. Unfortunately, the making of a reasonable adjustment does not mean that everything stays the same for a claimant. For example, in *Taylor v Dumfries and Galloway CAS [2007] SLT 425*, it was held that where the making of a reasonable adjustment would have resulted in the employee being able to undertake a particular job, the compensation payable in respect of breach of that duty should be based on the likely earnings of that job, and not in the job from which the claimant had been dismissed.

15.	(i)	In relation to Ms Penton’s complaint of disability-related discrimination the respondent, in submissions, accepted that it was “certainly arguable that the conclusion [it] reached … involved treating the [c]laimant less favourably for a reason which related to her disability”. It relies principally on the defence of justification set out in Section 3A(1)(b) of the Act of 1995, as amended. Section 3A(3) provides that:-

“[t]reatment is justified for the purposes of sub-section (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.”

	(ii)	Here, the respondent wanted to facilitate the claimant in a return to work, but considered that in order that this objective might be achieved, it was necessary to re-grade her and place her in a post where she would be able to continue working without suffering any further or greater injury to her health. Returning to the status quo was not an option as far as they were concerned. In this regard the tribunal has had to consider conflicting medical evidence as to what was in the best interest of Ms Penton’s health, though it has to be said that her own medical evidence is somewhat undermined by the fact that she did not disclose to Dr Miller what she had told others, namely that her preference was to go back to court-based work.

	(iii)	In *Jones v Post Office [2001] IRLR 384*, at page 388 the Court of Appeal in England and Wales held that in considering whether an employer’s reasons were material and substantial an industrial tribunal’s function was “different but not very different from the task [they] have to perform in cases of unfair dismissal”. It continued to say that in unfair dismissal cases “the tribunal’s task is to consider the reasonableness of the employer’s response and, under the present section, it is to consider the materiality and substantiality of his reason. In both cases, the members of the tribunal might themselves have come to a different conclusion on the evidence, but they must respect the opinion of the employer, in the one case if it is within the band of reasonableness, and in the other of the reasons given is material and substantial”.

	(iv)	We are satisfied here that the conclusion reached by the employer is one which carries ‘real weight’ and is ‘of substance’. Essentially we reach this conclusion for the same reasons that we found that the adjustments made were reasonable, namely the fact that the claimant, by reason of her medical conditions, was unable to fulfil the duties of the Level 2B post, that a return to that post would have had a detrimental effect on her health, and that it was impracticable to put in place any further support mechanisms which would have enabled her to return to that post.

16. As far as Ms Penton’s claim for unfair dismissal is concerned, we accept that a unilateral demotion will normally constitute a fundamental breach of the contract of employment in the absence of a contractual term allowing such a course, and will normally therefore amount to a dismissal.

However, in this case where we have held that the downgrading constituted a reasonable adjustment, we are not satisfied that what took place amounted to a dismissal. If we are wrong in this and there was a dismissal, we consider that it was fair for some other substantive reason within Article 13091)(6) of the Employment Rights (Northern Ireland) Order 1996.

For the same reason, any claim in respect of unlawful deductions from wages fails.

17. The claimant’s claims are therefore dismissed.

Chairman:

Date and place of hearing: 22 – 25 and 30 June 2009; and

3 July 2009, Belfast

Date decision recorded in register and issued to parties:

ANNEX

1. Record of Proceedings dated 7 December 2004 relating to
Case Management Discussion on 25 November 2004

2. Letter from Campbell Stafford, Solicitors, to Crown Solicitor, dated 24 March 2009

‘1.’

THE INDUSTRIAL TRIBUNALS
CASE MANAGEMENT CONFERENCE

CASE REF: 2166/02

APPLICANT: Linda Penton

RESPONDENT: Northern Ireland Court Service

DATE OF HEARING: 25 November 2004

REPBRSENTATIVES OF PARTIES:

APPLICANT BY: Mr B McKee, Banister-at-Law, instructed by
- MacElhatton & Company, Solicitors.

RESPONDENT BY: Mr M Wolfe, Barrister-at-Law, instructed by
The Crown Solicitor’s Office.

_______________________________________________________________________________________
Proceedings

1. The parties agreed that the issues for determination by the tribunal are:

(i) was the applicant dismissed by the respondent The applicant contends that the imposition of radically different terms and conditions of employment constituted a dismissal from her position, as Staff Officer, and thereafter she was employed as an Executive Officer under a new contract;

(ii) in the alternative, if the tribunal finds that the applicant was not dismissed, did
she suffer unlawful deduction of wages;

(iii) was the applicant created less favourably for a reason related to her disability.

The alleged less favourable treatment comprised of:

(a) subjecting the applicant to a complaint that she had improperly
attended a Christmas function whilst on sick leave,

(b) subjecting the claimant to bullying behaviour by Mr McLaughlin before and after she went on sick leave;

(d) demoting the applicant on her return from sick leave.

(iv) did the respondent fail to make reasonable adjustments without justification which would have enabled the applicant to return to work at her original grade of Staff Officer.

2. The applicant requires financial information in order to calculate the applicant’s financial loss

including loss of pension.

By consent, I direct that the information be provided within 12 weeks.

3. I direct, by consent, that the applicant specifies within three weeks what information she requires relating to her claim for potential loss of opportunity.

4. I direct, by consent, that the respondent comply with that request within 12 weeks of today’s hearing.

5. Both parties requested that the case be conducted by way of witness statements. The case will be listed for eight days— 18-22 April and 25-27 April 2005.

6. The applicant shall provide her witness statements not later than 12 weeks prior to the hearing.

7. The respondent shall provide its witness statements not later than six weeks prior to the hearing.

8. If the applicant wishes to provide a supplemental statement she must do so three weeks prior to the hearing.

9. An agreed bundle of documents, including witness statements, must be lodged with Office of the tribunals not later than 14 days prior to the hearing.

10. I direct, by consent, that within 21 days the applicant review her replies to a Notice for Further Particulars regarding allegations against Mr McLaughlin and confirm that the replies are complete.

11. The applicant raised the issue of documents relating to commendations she had received during her employment as a Staff Officer.

The applicant had sought discovers’ of these documents.

Mr Wolfe confirmed that a search had been carried out for these documents but they had not been located. He pointed out however, that these documents had never been in the custody, possession or control of the respondent.

They had been in the applicant’s office or desk.

In those circumstances the matter was not pursued.

Chairman:

Date: 7 December 2004

- 49

‘2’

Our ref: KG/AK/Penton/Fo132
Your ref: CCC-000l58/PAW

24 March 2009

Crown Solicitors Office
Po Box 410
Royal Courts of Justice
Chichester Street
Belfast BT1 3JY

Dear Sirs

Re: Linda Penton v NICS
Case ref 02166/02

We refer to the above matter and to the List of Issues set out at the Case
Management Discussion on 25 November 2004.

We advise we require the issues to be amended to include the following:

1. Amendment at 1(iii)(c) — failing to properly consider the possibility of transferring the claimant to Belfast Magistrates Court.

2. Addition of i(iii)(e) - detrimental treatment amounting to
harassment.

3. Amendment at 1(iv) - did the respondent fail to make a reasonable adjustment or reasonable adjustments (without justification) which would have enabled the claimant to return to her work at her original grade.

4. Addition of 1(v) - Did the Respondent fail to make reasonable adjustment or reasonable adjustment (without justification) which would have enabled the claimant to return to work to a suitable position at a suitable location.

We enclose the list of issue including the above amendments for your agreement. We await hearing from you as soon as possible in order that an agreed list can be forwarded to the Tribunal by 3 April as directed at the recent case management discussion.

Yours faithfully

_______________
KATRINA GRAY

Enc
113

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Penton v Northern Ireland Court Service [2009] NIIT 2166_02IT (22 December 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/2166_02IT.html Cite as: [2009] NIIT 2166_2IT, [2009] NIIT 2166_02IT

Industrial Tribunals Northern Ireland Decisions