Patrik Galo v Bombardier Aerospace – read the full preliminary judgment here.

The tribunal examined whether the President, acting alone as the tribunal, has the power to determine whether the claimant has the capacity to litigate his case and if so the test to be applied in determining that capacity.

The preliminary issues before the tribunal were:

1. Does the President, acting alone as the tribunal, have the power to determine whether the claimant has the capacity to litigate his case?;
2.  If so, what is the test to be applied in determining whether the claimant has the capacity to litigate his case?; 
3.  Having applied that test, does the claimant have the capacity to litigate his case?

In relation to point 1, it was held that the President did have the power to act alone and that whenever there are good reasons to suspect that a party’s capacity to litigate is in doubt, the presumption of capacity should not be used to avoid taking responsibility for investigating, assessing and determining capacity. This is because it is deemed unfair to permit proceedings to continue until the litigant’s interests are properly represented. A litigant who lacks capacity, lacks the ability to participate fairly in legal proceedings.

In relation to point 2 it was held that: The legal test of capacity in NI is that set out by the CA in Masterman-Lister v Brutton [2003] 3 All ER 163 as summarised by Stott v Leadec Limited UKEAT/0263/19/A: 

“The test to be applied is whether a party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisors…the issues on which his consent or decision is likely to be necessary in the course of those proceedings….A final decision on capacity depends upon time and context… but, in almost every case, the Court will need medical evidence to guide it…The question of capacity to litigate is not something to be determined in the abstract. The focus must be on the particular piece of litigation in relation to which the issue arises. The question is always whether the litigant has the capacity to litigate in relation to the particular proceedings in which he is involved”

In relation to point 3, it was held that:  Although there was good reason to investigate capacity, the President had been unable to do so, due to the Claimant’s refusal to disclose the psychiatrist’s report or obtain an alternative report. This was balanced with the Equality Commission’s concerns regarding the Claimant.

The President considered that it was no longer possible to have a fair hearing and that the power to strike out the claim was provided for by Rule 32 (1) (e). However, given that Rule 32 (2) states that a claim should not be struck out unless the party has been given the opportunity to make representations it was decided that the Claimant must be given the opportunity to make such representations. A further hearing was therefore set for 9th March 2022 for oral representations to be made.

Mr Noel Kelly was appointed as the President of the Industrial Tribunal and Fair Employment Tribunal for Northern Ireland by the Lady Chief Justice, The Right Honourable Dame Siobhan Keegan on 4th April 2022. 

The Presidents of the Employment Tribunals in England and Wales and in Scotland have issued a Fifth Addendum to the Presidential Guidance on employment tribunal awards for injury to feelings. 
For claims presented on or after 6 April 2022, the bands will be as follows:
a lower band of £990 to £9,900 for less serious cases
a middle band of £9,900 to £29,600  for cases that do not merit an award in the upper band
an upper band of £29,600 to £49,300 for the most serious cases
with the most exceptional cases capable of exceeding £49,300

For the full Presidential Guidance click here.

Link to Lewis Silkin’s full report is available here.

This week saw the publication of the reserved judgment in the case of Abbey Gannapureddy, an ice cream shop worker who was demoted, made redundant, and was subject to hurtful comments as a result of her pregnancy.

The Claimant began working at the shop in 2018 and was made manager of the store shortly thereafter. She Claimed that treatment towards her changed after announcing her pregnancy on 3rd April 2019.
She began to struggle with the lifting of heavy stock delivered regularly to the shop, reaching to scoop out ice cream and retrieve cakes at the front of the display, and mopping the floor. The tribunal found that the employer had no maternity or antenatal policy and no risk assessment was carried out.

A male colleague observing her physical difficulties whilst pregnant would sneer at her and make comments that if she was his wife “he would not allow her to work” whilst pregnant. When the complainant raised this issue with her manager he reacted angrily and sent a long WhatsApp message expressing frustration that he was having to pay someone to do those parts of the job that she “can’t or won’t do” and that he “could not make any more changes” due to her pregnancy. He asked, “what am I paying you for?” and that if she couldn’t do the work she “would need to look for another job.” He also defended the male colleague by saying to the Claimant that he had to do her work. The respondent sent a threatening message to all staff, emphasising that managers were particularly included in the message, stating that if they were not fit for work he would be dismissing them. This was a pointed reference to the Claimant.
 
The Claimant raised a grievance on 14^th September 2019 noting the change in attitude towards her that coincided with the announcement that she was pregnant. The respondent’s reaction was to remove her from the staff WhatsApp group and ask her to speak directly with head office in the future. He failed to respond to further messages from her. She was omitted from the staff rota and accused by the manager of harassing him.
 
All staff were warned of redundancies in April 2020 by email following a switch to takeaway and delivery as a result of the pandemic. They were invited to one-to-one meetings to discuss redundancy. The Claimant claimed not to receive her invite although the tribunal found that it was sent and either not noticed by her or had fallen into her spam folder. As a result, she failed to attend a one-to-one meeting in relation to redundancy. The Claimant claimed that she had not been consulted with regards to her redundancy and that no details had been provided for the selection pool and the relevant criteria for selection.

The tribunal found that she was discriminated against by reason of her pregnancy, that she was victimised and was automatically unfairly dismissed, 

The Claimant was awarded £18,000 for injury to feelings. 

For the full judgment click here.

Tara Mellor v The MFG Academies Trust UKET 1802133/202
 

The claimant teacher had been allowed to breastfeed her first child (brought in for feeds by her husband) but was told this was ‘not an option’ when her second child was born during COVID. The claimant, therefore, requested a suitable space to express milk in private. She was told that no rooms were available and had to resort to using the toilets or her car. The claimant described the toilets as ‘unhygienic’ and ‘disgusting,’ particularly given that with only 25 minutes allocated for her lunch break she was forced to express milk and eat her own lunch there at the same time. Her only alternative was to express milk in her car which she stated was ‘cold’ and in ‘public view’ of other staff and students.

With nowhere suitable to express milk she suffered pain and the humiliation of leaking breasts in front of her classes on several occasions. She eventually contracted mastitis as a result.

The employment judge ruled that her treatment had the effect of creating a degrading and humiliating environment. Her claim for sexual harassment was successful. Compensation has yet to be decided.

For the reserved judgment click here.

In the above case, the tribunal panel members were unanimous in dismissing the claimant’s claim of disability discrimination. The case does however serve as a reminder to employers to carefully consider how disability-related absences are managed by absence management policies. 

In considering the law on reasonable adjustment in relation to disability the tribunal noted that “The question is not (tribunal’s own emphasis) whether the PCP is capable of causing a substantial disadvantage to the disabled person, but whether it actually has this effect on them. The tribunal cited the Disability Code of Practice on Employment and Occupation and stated that: Whether a disadvantage exists is a question of fact. It was also noted that if a non-disabled person was affected by the PCP in the same way as a disabled person then there is no comparative substantial disadvantage to the disabled person and no duty to make reasonable adjustments. In addition, the disadvantage suffered must be because of the disability.

The absence management policy was found to include consideration relating to the DDA 1995 and line managers were required to refer to the ‘Managing staff with disabilities guidance’ when implementing the absence policy. It was found that the line manager in question had not done this, nor had a mandatory form for reasonable adjustment been completed.

The tribunal concluded that it had no difficulty in finding that the absence management policy was a PCP. However, it stressed the causative link that must be present between the PCP and the disadvantage caused and found that a non-disabled person would have experienced the same upset and distress at the implementation of the policy as the claimant. The tribunal also concluded that the claimant had not demonstrated a substantial disadvantage compared with her non-disabled comparators given that she had been given a “no further action” decision for a much longer period of absence than the selected comparators. The tribunal noted that whilst the PSNI had not followed its own disability policy this in itself was not a failure to make a reasonable adjustment.

The tribunal did say that had they found that the duty to make reasonable adjustments had been triggered, the adjustments requested by the claimant would have been reasonable given that they were in line with those contained in Appendix D of the PSNI Attendance Management Policy relating to disability and absence.

The tribunal was shocked at the lack of management awareness of its own policy on disability and said that “serious consideration should be given, by the Respondent, to better educating and training its managers about its disability policies.”

It found that had the respondent properly considered its own policy the hurt and upset experienced by the claimant could have been avoided. 

For the full judgment click here.

[PLEASE NOTE THAT THIS DECISION IS CURRENTLY UNDER APPEAL]