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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Duffy v Kennedy [2007] NIIT 823_05 (10 May 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/823_05.html Cite as: [2007] NIIT 823_5, [2007] NIIT 823_05

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THE INDUSTRIAL TRIBUNALS

CASE REF: 823/05

CLAIMANT: TERENCE DUFFY

RESPONDENTS: TONY KENNEDY

CO-OPERATION IRELAND

DES FEGAN

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant did not suffer a disability within the meaning of section 1 of the Disability Discrimination Act 1995 when he was employed by the second named respondent.

Constitution of Tribunal:

Chairman: Ms M Sheehan

Appearances:

The claimants: The claimant appeared in person.

The respondent Mr. C Hamill Barrister at Law instructed by Elliott Duffy and Garrett, Solicitors, appeared on behalf of the respondent.

The Issues

1. This pre-hearing review was arranged to determine the issue whether the claimant suffered a disability within the meaning of section 1 of the Disability Discrimination Act 1995.

Sources of Evidence

2. The tribunal heard oral evidence from the claimant, Ann Anderson Porter and Dr Peter Curran, Consultant Psychiatrist who had been consulted by the second named respondent. In addition the tribunal was referred to a bundle of documents numbering 76 pages, identified as "R1".

The Facts

3. The tribunal having heard the oral evidence and considering the documentation before it found the facts as detailed in the paragraphs below.

4. The claimant on the 20 May 2005 lodged with the Office of the Industrial Tribunals a complaint that he suffered discrimination in regard to disability in the way his employment with the second named respondent was not confirmed at the end of the probationary period. His employment as a research officer with the second named respondent commenced on 7 December 2004.

5. The respondent lodged a response to the claimant's complaint denying that the claimant had suffered any discrimination in regard to disability. The respondent contended that the claimant had been employed by the second named respondent with a term of his contract of employment stating that his employment was subject to a probation period of three months. The respondents did not accept that the claimant at all times material to his employment with the second named respondent was a disabled person within the statutory definition.

6. The claimant in replies to notice of further and better particulars contended that he had a mental impairment, namely clinical depression, which rendered him a disabled person within the meaning of the Disability Discrimination Act. The normal day-to-day activities the claimant claimed at hearing which were affected by his impairment were the ability to drive and ability to concentrate. No examples of the claimant's lack of or where concentration was affected were detailed to the tribunal. The claimant's ability to drive was affected particularly in the mornings, after taking his prescribed medication.

7. Prior to applying for employment with the second named respondent the claimant had been employed by the University of Ulster at Magee Campus. His employment with the University of Ulster was terminated mid 2004.

8. In 2003 the claimant had been experiencing difficulties at work while employed with the University of Ulster. The claimant had experience of seeking assistance from outside bodies working in the mental health field to address his needs as he perceived them arising from his medical condition.

9. This claimant by December 2004 had submitted an application to the Industrial Tribunal regarding the termination of his employment with the University of Ulster arising from an alleged failure to make "reasonable adjustments" as a result of his disability within the meaning of the Disability Discrimination Act 1995.

10. The claimant submitted an application for a research post with the second named respondent on the 20 October 2004. Many parts of the application form were left blank such as details of referees, whether the claimant had other paid employment and details of education. On that form the claimant indicated that he was a registered disabled person and that he considered himself disabled. The claimant in fact was not a registered disabled person.

11. At interview the claimant's immediate line manager, Ann Anderson Porter noted the comments re disability but made no enquiry as she felt it would leave the respondent vulnerable to an allegation of discrimination. The claimant was advised at the interview that it was a very busy post that he was coming into.

12. Prior to taking up his post with the second named respondent the claimant obtained agreement that he could continue working on a number of outside work interests. It was not in dispute that some of the hours worked during his employment related to work on these projects.

13. At the time of the claimant's employment the second named respondent employed approximately 50 people in various offices.

14. The tribunal heard conflicting evidence as to the number of hours worked by the claimant and the amount of work he was requested to do by the second named respondent's employees. The claimant detailed on the document submitted with his application to the Industrial Tribunal a substantial list of assignments, which he undertook in the three months of his employment with the second named respondent. No mention was made in this document that his disability impacted on his ability to complete that work or that it affected his concentration.

15. Ann Anderson Porter gave evidence in a clear and concise fashion that as the claimant's line manager she advised him on the first day that the organisation had a flexible approach to hours and that he could work from home on occasions if the claimant so desired. The tribunal accepted her evidence as it was not contested by the claimant that on 9 February 2005 the claimant described his disability as "minor" which affected his ability to drive a car early in the morning". In evidence the claimant contended he felt he was working satisfactorily and did not consider that there was a need for any "reasonable adjustment". While the claimant claimed to have also raised with Ann Anderson Porter an adverse impact on his ability to concentrate the tribunal accepted Ms Porter's evidence that no such complaint was made, particularly as no such complaint was contained in the claimant's lengthy appeal document dated 28 February 2005 and lodged with the second named respondent.

16. There was no issue about the quality of the work carried out by the claimant on behalf of the second named respondent. The second named respondent contended that the difficulty in confirming the claimant's employment was activated by the claimant's failure to attend a meeting at Cookstown on 2 February 2005, attending outside conferences on 8 and 10 February 2005, which had not been notified to his immediate line manager and his response to an email from the first named respondent in mid to late February 2005.

17. The claimant claimed he suffered from clinical depression, which varied at times in its severity. At the time of his employment with the second named respondent he was taking prescribed anti-depressants and a daily sleeping tablet, namely 20mg of Prozac and Temazepam. He claimed he had been doing so for some years. The claimant asserted he had periods of respite and periods when he was very low. There had been no in-patient admissions.

18. The main impact the claimant suffered from was that the medication left him drowsy especially in the morning immediately after taking his medication. At times when his depression was more severe, the claimant advised the tribunal he found it difficult to concentrate on his work and would struggle to keep conscious. No examples or evidence of such incidents were provided to the tribunal. The alleged physical impact of his condition was that he would have less energy than the average person which affected his ability to get round and because of tiredness he needed more sleep than the average person.

19. The claimant made limited medical evidence available to the tribunal. The claimant gave conflicting evidence as to the start of his medical condition and its progression. Initially he stated in evidence that since his early twenties he had a "lifelong problem of depression". Later in cross-examination he stated his "clinical depression" was first diagnosed five years ago, placing it in or about 2002. Dr Curran's report dated December 2005 records that the claimant had "a history of depression on and off over the years with a liability to bouts of depression that can last for weeks or months at a time".

20. The claimant claimed that the antidepressants prescribed for him had side effects of causing drowsiness thereby causing him to avoid driving. Dr Curran in evidence stated that theoretically this was possible but Prozac rarely interferes with driving ability. Dr Curran contended there were thousands of people on this level of medication who were driving vehicles.

21. The claimant when examined by Dr Curran on 6 December 2005 told Dr Curran a number of matters that were not factually correct. The claimant misrepresented the status of his employment relationship with the University of Ulster. The tribunal heard conflicting evidence from the claimant and Dr Curran as to what answer if any the claimant provided to an enquiry as to whether or not he had ever felt suicidal. In light of the handwritten notes of Dr Curran, his clear evidence on this matter as opposed to the evasive answers from the claimant and Dr Curran's experience in medic legal examinations the tribunal concluded that such an enquiry was made and the claimant answered in the negative. His negative response to Dr. Curran on this issue was inconsistent with an undated medical note produced to the tribunal from the claimant's General Practitioner Dr Hill relating to an attendance also in December 2005.

22. At the time of the claimant's employment with the second named respondent he was prescribed 20mg of Prozac and Temazepam. At the time of examination in December 2005 he was being prescribed 40mg Prozac. Dr. Curran gave evidence that on the date of examination the claimant exhibited no drowsiness at 2.30 pm nor any difficulty with concentration. The tribunal accepted Dr Curran's evidence that 20mg of Prozac is the lowest prescribed dose and Prozac is the least sedating of the 14 or 15 drugs in the relevant group of drugs. When the claimant put to Dr Curran, at hearing, that he had been feeling drowsy this morning, Dr Curran responded that "it had not been immediately obvious from 10 am this morning". Dr Curran's professional medical conclusion was that the claimant's condition was comparatively mild, that the dose of medication he was prescribed at the time of his employment with the second named respondent was the lowest level available and there was no indication of any serious medical condition or impairment.

The Contentions of the Parties

23. The respondent contended at hearing it was necessary for the claimant to establish that his impairment as a result of his medical condition was substantial. It was for the claimant to provide evidence to the tribunal to determine that issue or make that conclusion. The only two letters produced to the tribunal by the claimant were not created for the purpose of assisting the tribunal to determine that issue. This from a claimant who has chosen in his second application to the Industrial Tribunals under the Disability Discrimination Act to produce no General Practitioner notes or records. The tribunal has to contrast that position with the clear evidence of Dr Curran. The credibility of the claimant must also be at issue given the changes in his evidence as the hearing progressed. The conflict between him and Dr Curran on the matters discussed means the claimant chose to misrepresent his true feelings in December 2005 to Dr Curran or to his general practitioner. The claimant's 15-page letter submitted to his employer after notice of termination of his employment was given to him made no mention of any concentration issue. The complaint regarding the ability to drive appears not to be that he couldn't drive but that he feels his ability is impaired because of the combination of drugs taken. It is not even the claimant's case that this impairment lasts the whole day, but only the mornings. The tribunal should find it noteworthy that in February 2005 the claimant described his condition as "minor" to his line manager.

24. The claimant contended that his appeal letter set out the substance of his complaint. Dr Curran in his oral testimony he contended was more sympathetic to his disability. The claimant asserted he would expect the tribunal to conclude that he suffered from clinical depression, which made him disabled within the 1995 Act.

Applicable Law

25. Definition of disability

Section 1(1) of the Disability Discrimination Act provides as follows:

"Subject to the provisions of Schedule 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities." [emphasis added]

1. Long-term effects

Paragraph 2(1) of Schedule 1 of the Disability Discrimination Act provides that:

"The effect of an impairment is a long-term effect if –

a. it has lasted at least 12 months;

b. the period for which it lasts is likely to be at least 12 months; or

c. it is likely to last for the rest of the life of the person affected."

2. Normal day-to-day activities

Paragraph 4(1) of Schedule 1 of the Disability Discrimination Act provides that:

"An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following –

(a) mobility;

(b) manual dexterity;

(c) physical co-ordination;

(d) continence;

(e) ability to lift, carry or otherwise move everyday objects;

(f) speech, hearing or eyesight;

(g) memory or ability to concentrate, learn or understand; or

(h) perception of the risk of physical danger."

3. Effect of medical treatment

Paragraphs 6(1) and 6(2) of Schedule 1 of the Disability Discrimination Act provide as follows:

"6(1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.

6(2) In sub-paragraph (1) "measures" includes, in particular, medical treatment…"

4. Guidance

Section 3 of the Disability Discrimination Act provides that a tribunal, in determining whether a person is disabled within the terms of the Disability Discrimination Act, shall take into account any guidance on the subject published by the Department. Paragraph C.14 and C.18 of the relevant guidance give illustrative samples of the effects covered by impairments in mobility. Thus:

Mobility

C.14 – this covers moving or changing position in a wide sense. Account should be taken of the extent to which because of either a physical or a mental condition a person is inhibited in getting around unaided or using a normal means of transport in leaving home without assistance, in walking a short distance, climbing stairs, travelling in a car or completing a journey on public transport, sitting, standing, bending or reaching or getting round in a non-familiar place.

Examples

It would be reasonable to have regard as having a substantial adverse affect:

inability to travel a short journey as a passenger in a vehicle;

inability to walk other than at a slow pace or with unsteady or jerky movements;

difficulty in going up or down steps, stairs or gradients;

inability to use one or more forms of public transport; and

inability to go out of doors unaccompanied.

It would not be reasonable to regard as having a substantial adverse affect:

difficulty walking unaided a distance of about 1.5 kilometres or a mile without discomfort or having to stop; and

inability to travel in a car for a journey lasting more than two hours without discomfort.

C 20. (Memory or Ability to Concentrate, Learn or Understand),

Account should be taken of the person's ability to remember, organise his or her thoughts, plan a course of action and carry it out, take in new knowledge, or understand spoken or written instructions. This includes considering whether the person learns to do things significantly more slowly than is normal.

Examples

It would be reasonable to have regard as having a substantial adverse affect:

intermittent loss of consciousness and associated confused behaviour;

persistent inability to remember the names of familiar people such as family or friends;

inability to adapt after a reasonable period to minor change in work routine;

inability to write a cheque without assistance; and

considerable difficulty in following a short sequence such as a simple recipe or a brief list of domestic tasks.

It would not be reasonable to regard as having a substantial adverse affect:

inability to concentrate on a task requiring application over several hours;

inability to fill in a long, detailed, technical document without assistance; and

inability to read at faster than normal speed.

5. Annex 1 of the relevant Code of Practice provides under the heading "What is Meant by Disability" at paragraph 8 (dealing with long term effects) that an injury may be quite serious without nevertheless satisfying the element of the definition: "Effects which are not long term would therefore include loss of mobility due to a broken limb which is likely to recover within 12 months."
6. In the context of long term effects paragraphs B7 and B8 of the Guidance provide:

"B7. It is likely that an event will happen if it is more probable than not that it will happen.

B8. In assessing the likelihood of an effect lasting for any period, account should be taken of the total period for which the effect exists. This includes any time before the point when the discriminatory behaviour occurred as well as time afterwards. Account should also be taken of both the length of such an effect on an individual and any relevant factors specific to this individual (for example, general state of health or age.)"

The Relevant Legal Principles

7. Morison J., sitting in the Employment Appeal Tribunal in England and Wales in the case of Goodwin v Patent Office [1999] IRLR 4, offered guidance as to how the tribunal should approach its task under section 1(1) of the Disability Discrimination Act. Morison J. identified four questions, which must be answered under section 1(1):

a. Does the claimant have an impairment, which is either mental or physical?

b. Does the impairment: affect the claimant's ability to carry out normal day-to-day activities in one of the respects set out in para. 4 of the Schedule to the Act, and does it have an adverse effect?

c. Is the adverse condition (on the claimant's ability) substantial?

d. Is the adverse condition (on the claimant's ability) long-term?

Relevant Date

8. The tribunal is aware that the authorities are difficult to reconcile when it comes to the right time at which to consider whether the statutory definition of disability is satisfied. However, the Tribunal considered the Cunningham v Ballylaw Foods Limited case on this issue including its consideration of the case of Latchman -v- Reid Business Information Limited [2002] IRCR 1453. It also considered the case of Cruickshank -v- W A W Motor Cass Limited [2002] IRLR 24 where the Employment Appeal Tribunal held that the time at which to assess disability was when the act of alleged discrimination took place. It appeared to the tribunal the material time at which the assessment whether the claimant had a qualifying disability was at the time of the alleged discriminatory act that is to say from December 2004 until 28 February 2005. The Tribunal thus focused on determining what the evidence established in relation to the disability issue as at that time.
9. As set out at paragraph 28 above, if the effects of an impairment are being controlled by medical treatment, the question of whether or not that impairment is likely to have a substantial adverse effect on the claimant's abilities must be determined by reference to the effect of the impairment in the absence of the medical treatment. In other words, the tribunal must deduce whether or not the impairment, if the controlling medical treatment were not administered, would have a substantial adverse effect on the claimant's ability to carry out normal day-to-day activities.
10. In Ross v Precision Industrial Services Limited v Dupont UK (Limited) the Court of Appeal in this jurisdiction stated that the onus of establishing that the claimant was substantially affected in given respects rested squarely on the claimant. It referred to Kapadia v London Borough of Lambeth [2000] IRLR 699 where the court stated:

"It is not enough, however, for an applicant to maintain that he or she would be badly affected if treatment were to stop. Therefore proof, preferably of an expert medical nature, is necessary."

11. What is true in relation to the substantiality of an alleged impairment is true also in relation to the establishment of the likelihood of long term effects as statutorily defined. Here also the onus of proof lies on the claimant and will be dependant on the state of the medical evidence. See also Latchman v Reid Business Information Limited [2002] ICR 1453 at 1459H.
12. In Woodrup v London Borough of Southwark [2003] IRLR 111 the Court of Appeal of England and Wales addressed itself as to the evidence, which might assist a tribunal in determining this question. In particular on paragraph 13 of the judgement Simon Brown LJ comments:

"In any deduced effects case of this sort the claimant should be required to prove his or her alleged disability with some particularity. Those seeking to invoke this peculiarly benign doctrine under para 6 of the schedule should not readily expect to be indulged by the tribunal of fact. Ordinarily, at least in the present class of case, one would expect clear medical evidence to be necessary."

13. Woodrup concerned a mental impairment, and psychotherapy rather than drug based medical treatment. In 1991, the appellant suffered a nervous breakdown. Treatment was sporadic from 1993 until 1997. After November 1997 until the hearing in early 2000 the appellant received twice weekly psychotherapy. At the date of the hearing, the appellant was not suffering a substantial adverse effect on her ability to carry out normal day-to-day activities. No medical evidence was adduced to support the claimant's case under paragraph 6, the evidence was confined to what the claimant herself surmised would have happened if she was not receiving psychotherapy. It was against this factual background that Simon Brown LJ made the comments set out above about "the present class of case".

Conclusions in light of the facts and law.

39. In light of the medical correspondence produced at hearing, the evidence of Dr. Curran and the claimant, the tribunal concluded on the balance of probabilities that the claimant at the time of his employment with the second named respondent suffered from clinical depression, which is a clinically well recognised illness as required by Schedule 1, Paragraph 1 of the Disability Discrimination Act 1995. The tribunal was not able to be satisfied on the balance of probabilities that the claimant's condition was "bi-polar disorder" as no medical evidence of such a diagnosis was produced to the tribunal. The tribunal concluded that the claimant had suffered from clinical depression from in or about 2000. It is clear that the claimant had been receiving medication for this "depression" for some years prior to his employment with the second named respondent. The claimant's depression, on his own evidence, fluctuates and could last for "weeks or months at a time". It appeared to this tribunal on the available evidence while the claimant may have had more serious levels of depression in 2002 and or 2003, at the time of his employment with the second named respondent he suffered from a mild clinical depression.

40. The claimant appeared to have made a conscious decision not to produce any medical evidence other than the documents produced at hearing in support of his case, one dated in 2003 and two dated in 2005. Even in the absence of expert medical evidence the tribunal was mindful of the duty placed upon it to assess what normal day-to-day activity is and whether or not impairments, which exist, are or are not substantial. These are questions of fact upon which the tribunal must make a finding. (Vicary -v- British Telecommunications PLC IRLR 680).

41. Paragraph C5 of the guidance states "In many cases an impairment will adversely affect the person's ability to carry out a range of normal day to day activities and it will be obvious that the overall adverse effect is substantial or the effect on at least one normal day to day activity is substantial. In such a case it is unnecessary to consider precisely how the person is affected in each of the respects listed in paragraph C4". It appeared to this tribunal this was not such a case. The tribunal noted that the claimant told his line manager in February 2005 that his impairment was "minor", merely affecting his ability to drive in the morning. The tribunal therefore determined to consider the alleged cumulative effects of the impairment.

42. The tribunal was struck by the long list of tasks to have been completed by the claimant during his employment with the second named respondent. While it was disputed that he was required to complete these tasks on his own, it was not disputed during the hearing that he had a role in all the tasks. In light of the evidence of his satisfactory completion of work allocated to him, his wish and ability to carry out additional work independent of his employment, the guidance at C20 and the total lack of any complaint by the claimant in his letter of appeal to the second named respondent of adverse impact on his concentration, the tribunal concluded on the balance of probabilities that there was no adverse impact on his ability to concentrate.

43. The claimant was clearly mobile before the tribunal. The tribunal considered the guidance published by the Department, the evidence of the claimant and of Dr. Curran regarding the theoretical possibility of drowsiness as a side effect of the medication prescribed and concluded on the balance of probabilities that the claimant's mobility was impaired to the extent of using his normal means of transport, namely a car.

44. The tribunal has taken into account the relevant guidance on matters to be taken into account in determining questions relating to the definition of disability. The tribunal notes in particular the following matters of guidance:-

The requirement that an adverse effect be substantial suggests a limitation going beyond the normal differences in ability, which may exist among people.

A substantial effect is one, which is more than minor or trivial.

The time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial.

45. Account should be taken of how far a person can reasonably be expected to modify behaviour to prevent or reduce the effects of an impairment on normal day –to-day activities. In some cases people have such "coping" strategies, which cease to work in certain circumstances (for example where someone who stutters or has dyslexia is placed under stress.) If it is possible that a person's ability to manage the effects of an impairment will break down so that effects will sometimes still occur, this possibility must be taken into account when assessing the effects of the impairment.

46. There was no evidence before the tribunal of the claimant having difficulty travelling in a car or completing a journey on public transport lasting more than 2 hours. The claimant's difficulty was essentially a level of drowsiness, which inhibited him from driving in the mornings. In light of this evidence and the examples given in the guidance issued by the department the tribunal concluded on the balance of probabilities that the impact on the claimant's mobility could not be described as "having a substantial adverse impact".

47. In Cunningham V Ballylaw Foods Ltd Girvan LJ stated at paragraph 21

"In approaching the question whether a person qualifies as a person with a disability for the purposes of section 1 a tribunal must not overlook that the questions of substantial adverse effect and long term adverse effect overlap and ultimately the tribunal must take a view as to whether the overall statutory definition is satisfied on the evidence".

14. .In relation to the issue of long-term effect of the impairment the Guidance, at paragraph B states:-

"In assessing the likelihood of an effect as to any period account should be taken of the total period for which the effect exists. This includes any time before the time the discriminatory behaviour occurred as well as any time afterwards".

15. .The tribunal also took cognisance of the Guidance at paragraph B 7 in assessing whether the period for which the long-term effect lasts is likely to be at least 12 months and asked itself if this was more probable than not at the date when the act of alleged discrimination complained of took place. On the evidence of the claimant, the severity of his condition fluctuates, with more serious levels sometimes lasting "weeks or months". The particular effect of the impairment appeared to only last for mornings.
16. .The onus of establishing that he was substantially affected in mobility and concentration rested squarely on the claimant. In this case the medical evidence did no more than suggest a mild level of clinical depression. There was no evidence before the tribunal for it to make any deduction as to the effects of the impairment suffered by the claimant; that is what would happen if the treatment stopped. As stated in Woodrup ordinarily clear medical evidence would be expected to be provided to the tribunal in such circumstances. However in this case the only evidence was that gleaned from Dr Curran who indicated that had the claimant not taken the combination of his medication that morning but instead postponed it to the afternoon, he would not have expected that to have any adverse impact. The tribunal is therefore not satisfied on the evidence before it, particularly given the paucity of medical evidence, that the claimant's impairment had a substantial and long-term adverse affect on his ability to carry out normal day-to-day activities.

50. The tribunal therefore concludes that there was not a disability, within the meaning of the Disability Discrimination Act 1995, and the claimant's claim of disability discrimination is accordingly dismissed.

Chairman:

Date and place of hearing: 10 May 2007, Belfast

Date decision recorded in register and issued to parties: