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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Mitchell v Seagate Technology Ireland [2008] NIIT 1345_07IT (22 September 2008) URL: https://www.bailii.org/nie/cases/NIIT/2008/1345_07IT.html Cite as: [2008] NIIT 1345_07IT, [2008] NIIT 1345_7IT |
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CASE REF: 1345/07
CLAIMANT: Robert James Mitchell
RESPONDENT: Seagate Technology Ireland
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
The issues
(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
Findings of fact
(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
The law
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
"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."
(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.
(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.
"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
Duty to make reasonable adjustments
Disability-related discrimination
(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.
(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.
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: