Successful Defence of a recent Disability Discrimination Case

13 August 2015

Tribunal determines a Claimant not disabled within the meaning of the Disability Discrimination Act and therefore not treated less favourably in this respect

Galvin Duffy v. Firstsource Solutions Ltd, Case Reference 2256/14, Decision dated 9th August 2015

In the recent Decision of the Industrial Tribunal of Northern Ireland, our client Firstsource Solutions Ltd was successful in defending a Disability Discrimination case.The Tribunal dismissed the Claimant’s claims in their entirety.

The Tribunal was required to determine whether the Claimant was a disabled person within the meaning of the Disability Discrimination Act (a matter in dispute between the parties) and if so, had Firstsource Solutions Ltd treated him less favourably than they would have treated a person not having a disability by dismissing him on 29th August 2014.

The Claimant, who was employed by Firstsource Solutions Ltd as a Customer Services Advisor for in and around five months, received a written warning in May 2014 for being absent without leave in April 2014. The Claimant did not appeal this warning.

The Claimant received a letter of dismissal in September 2014 which stated his level of absence during his probation period, failure to improve subsequent to his written warning, extension of probation and his failure to follow the company’s Sick and AWOL policies, were the reasons for his dismissal. The Claimant did not appeal the decision to dismiss him.

In a condemning decision for the Claimant, the Tribunal Panel remarked that;

“…the reason for the Claimant’s dismissal was his failure to comply with Absence Without Official Leave Procedure (‘AWOL’). The Claimant in his evidence accepted that this was the reason for his dismissal although supplemented his evidence later by including his sickness as a reason. The tribunal accepts that the Respondent’s AWOL procedure is strict. However the Claimant was aware of at least another individual who had been similarly dismissed for failing to comply with the same procedure. He had not alleged that a disability was in any way relevant to that dismissal. There is no evidence before the tribunal that even if disabled within the meaning of the legislation, the claimant was treated in any way differently than a non-disabled person who failed to comply with the AWOL procedure would be in the same circumstances…”

The Tribunal stated;

“The Tribunal is satisfied, on the evidence before it, that the Claimant at the material time, had, on the balance of probabilities, a physical impairment which had a substantial adverse effect on his ability to carry out normal day-today activities. However on the evidence before it, the tribunal is not satisfied that the Claimant has established a long term effect under Paragraph 2(1) of Schedule 12 of the DDA…”

“The Tribunal therefore concludes that the claimant was not disabled within the meaning of the DDA.”

Given that the Tribunal did not determine the Claimant was a disabled person, this proved fatal to his disability discrimination claims as he was devoid of the protected characteristic he alleged he was badly treated for.

Firstsource Solutions Ltd was represented by Mr Niall McMullan of Worthingtons Solicitors.

Should you require advice in relation to Disability Discrimination or any employment dispute, please contact Niall at niall@worthingtonslaw.co.uk or 02890434015.

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