Doherty v Department of Health and Social Services  (Disability)  (19 June 2002)
THE INDUSTRIAL TRIBUNALS 

CASE REF:	03279/99D

APPLICANT:		Mr John C Doherty

RESPONDENT:		Department of Health and Social Services

DECISION

The unanimous decision of the tribunal is that the respondent’s treatment of the applicant was justified within the meaning of the Disability Discrimination Act and the application is accordingly dismissed.

Appearances:
The applicant was represented by Mr Campbell from NIPSA
The respondent was represented by Mr Coll instructed by Departmental Solicitors Office

1.	The applicant was employed by the respondent at all material times as a computer programmer.

2.	It is conceded by the respondent that the applicant is a disabled person for the purposes of the Disability Discrimination Act 1995 (as modified by Schedule 8 thereof).

3.	The complaint as set out in the Originating Application, arises out of the respondent’s failure to promote the applicant to the post of “programmer/analyst”.  The applicant was interviewed for the said post on 26 February 1999.  His name was not included on the list of successful candidates, and when he sought “feed-back” on his interview he was informed that he had been assessed as “qualified”, but that he would not be promoted until he was considered physically fit to carry out the duties of the post.  It is conceded that all other “qualified” candidates were promoted with effect from 3 May 1999.  The applicant complains that he has been treated less favourably by reason of his disability, and that the respondent failed to comply with its duty to make all reasonable adjustments to facilitate his career development.

4.	The respondent concedes that it has treated the applicant less favourably for a reason related to his disability, but it seeks to rely on the defence of justification.  Furthermore, the respondent denies that it has failed to comply with its duty to make reasonable adjustments, and in the alternative it argues that if it did fail to comply with its obligations, it was justified in so doing.

5.	The applicant suffers from a medical condition known as “chronic tenosynovitis”, which causes extreme pain and discomfort in his arms.  The tribunal accepts that this condition has caused the applicant to be unable to use the computer keyboard to the extent necessary to carry out his normal duties as a programmer.

6.	In January 1999 the applicant returned to work following a lengthy period of sick leave.  At that stage, the tribunal accepts that the medical advice provided to the respondent from the Occupational Health Service (OHS) was that due to his ongoing medical condition he should return to “light clerical duties” and “not carry out any keyboarding” activity.

7.	In or about February 1999 it was agreed that the applicant could undertake a limited degree of keyboarding.  It was agreed that the applicant would undertake a project to research and report on the feasibility of his using Voice Recognition Softwear to enable him to continue to work in the programming field.  It was hoped that the use of such equipment would sufficiently minimise the extent of keyboarding activity required to carry out the duties of programmer.

8.	A number of adjustments were also made to the applicant’s work station, following advice, however none of these adjustments were capable of solving the applicant’s difficulty with keyboarding activity.

9.	It was while the applicant was engaged in this project to ascertain the feasibility of Voice Recognition Softwear that he applied for promotion to the post of programmer/analyst, and was considered qualified for the position.  In the selection process no account was taken of the applicant’s disability.  The tribunal accepts that although this post did have an element of management, the level of keyboarding activity required was substantially the same as that required for the post of programmer.  Advice from the Occupational Health Service dated 25  May 1999 stated:

“…. I do not feel that he can be accepted as a programmer or programmer/analyst at this point unless a specialist report is obtained which states that he is capable of carrying out the significant keyboarding duties required of either of the 2 posts.”

10.	The respondent submitted that its decision not to promote the applicant in the present circumstances was justified.  It relies on the statutory defence of justification contained in section 5(3)  of the Act which states that:-

“…. Treatment is justified, if, but only if the reason for it is both material to the circumstances of the particular case and substantial”

The Statutory Code of Practice states at paragraph 4.6 that this means the reason has to relate to the individual circumstances in question and not just be trivial or minor.

The respondent submits that the applicant’s physical inability to carry out the keyboarding functions of either post did relate to the individual circumstances and was neither trivial nor minor.  The respondent had set in progress a project to try to identify appropriate reasonable adjustments which would enable the applicant to carry out the functions of the post, and until they could be identified the respondent alleges that its treatment of the applicant was justified.

11.	The applicant submitted that the respondent was not justified in refusing to promote him. He argued that he should have been promoted whilst attempts were being made to ascertain what reasonable adjustments could be made to enable him to perform the functions of the job.

12.	The tribunal has given this issue a great deal of consideration.  In reaching its conclusion that the respondent was justified in not promoting the applicant, the tribunal relied on the guidance of the English Court of Appeal in Jones v Post Office 2001 IRLR 384.  It states that the function of tribunals under Section 5(3) is not very different from the task which they have to perform in cases of unfair dismissal where they have to adopt the range of reasonable responses approach to considering the reasonableness of a dismissal.  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.

13.	Furthermore, the tribunal has gleaned some assistance from paragraphs 5.27 and 5.28 of the Code of Practice which considers the issue of terms and conditions of service which may be offered to a disabled person.  It is clear that an employer may offer a disabled person a less favourable contract where there is a material and substantial reason and there is no reasonable adjustment which can be made to remove that reason.

In our view therefore, given that the applicant could not physically perform the duties of either programmer or programmer/analyst and the respondent was attempting to identify reasonable adjustments but had so far been unsuccessful, the respondent was justified in delaying the promotion.

14.	The applicant complained that irrespective of whether the promotion should have taken effect on the same date as that of the other “qualified” candidates, he should have been informed that he had been successful, and his name should have been included on the list of successful candidates.  The tribunal accepts that this complaint is justified.  It is unacceptable that an employee who successfully completes a promotion board should only learn of his success by chance when he inquires about feedback from his interview.  The tribunal is not satisfied that the applicant suffered a detriment by virtue of his learning of his success in this manner.

15.	The applicant also submitted that he had been discriminated against in the respondent’s failure to make reasonable adjustments to enable him to carry out the duties of programmer/analyst.  He alleged that the efforts to identify appropriate Voice Activated Softwear were ineffective because he had prolonged periods of ill-health and the responsibility was left to him to see if such equipment could constitute a reasonable adjustment.  Furthermore, he submitted that changes could and should have been made to his job description to enable him to be promoted, and failing that, redeployment should have been considered.

16.	As regards the first of these complaints, the respondent submitted that it considered that the applicant was best placed to identify the most appropriate softwear package to suit his needs.  It therefore denied that it had failed to make a reasonable adjustment and in the alternative that it was justified in its failure by reason of its opinion as to who should identify the most suitable package.

17.	In our view, given the applicant’s serious ill-health which necessitated frequent absences from work it would have been better to have given the task of identifying appropriate softwear to another employee who could have completed the task and reached conclusions much quicker than the applicant.  Any qualified programmer in the department could easily have assessed which Voice Activated Package necessitated the least amount of keyboarding skill.

18.	However, the tribunal reminds itself that the test for justification as expounded in Jones v Post Office is similar to the band of reasonable responses test in unfair dismissal cases.  The tribunal’s task is to identify whether the reason for the treatment is material and substantial.  We accept that the respondent did consider the applicant to be the best person to examine available softwear packages.  Furthermore, the tribunal heard evidence which it accepts that on several occasions the applicant expressed his wish to remain in the programming field if at all possible rather than be redeployed.  In addition, it was recorded in a number of documents, and was not disputed that the applicant was pleased with the efforts which were being made to identify appropriate adjustments.  

Although the applicant alleged that his job description could have been altered to reduce the level of keyboarding required for his post, the tribunal is not satisfied that this was a realistic possibility.  The tribunal heard evidence from Sharon Vennard, a disabled programmer whose keyboarding activity had been reduced by 50% by providing her with additional responsibilities and altering her job description.  It is clear from the medical evidence that the applicant would have been unable to carry out even 50% of his keyboarding duties.

For all these reasons the tribunal accepts that the respondent is entitled to rely on the defence of justification.

19.	Although the Union had written to the respondent on the applicant’s behalf in 1998 requesting that the applicant be considered for redeployment to the post of project facilitator it appears that neither party followed this up.  In any event the post was the same grade as the post of programmer rather than the higher post of programmer/analyst and so the applicant did not suffer any detriment from the failure of the respondent to pursue this as a reasonable adjustment.  It appears to the tribunal that “mixed messages” were being communicated by the applicant as to what his preferences were.

20	The tribunal has not been informed as to whether reasonable adjustments have now been identified to enable the applicant to take up the position of programmer/analyst.  If no such adjustments have been identified, the tribunal recommends that the respondent should consult with the applicant with a view to identifying suitable redeployment at the same grade as programmer/analyst.  We would wish to add, that in our view, there is no requirement for the applicant to compete with other candidates in the usual way for such a suitable position, since Section 6 of the Act places a positive duty on an employer to take such steps as it is reasonable for him to have to take in order to prevent the disabled person being placed at a substantial disadvantage in comparison with persons who are not disabled.  

21.	For the above reasons the application is dismissed.

Chairman:

Date and place of hearing:  8 April 2002, Belfast

Date decision recorded in register and issued to parties: 19 June 2002