Marks v British Telecom Northern Ireland (Preliminary Issue- Disability) [2002] NIIT 2876_00 (29 November 2002)
CASE REF: 2876/00
APPLICANT: John Marks
RESPONDENT: British Telecom Northern Ireland
The unanimous decision of the industrial tribunal, on a preliminary issue, is that the applicant does not have a disability within the meaning of Section 1 of the Disability Discrimination Act 1995.
Appearances:
The applicant was represented by Mr W McCreight of the CWU.
The respondent was represented by Mr N Drennan QC, instructed by Napier & Sons, Solicitors.
(ii) The tribunal heard evidence from the applicant, and from his GP, Dr John Wilson, on his behalf. It also heard evidence from Dr Philip McCrea, a specialist in occupational health medicine, on behalf of the respondent, and had regard to documentary evidence submitted by the parties.
(iii) The tribunal finds the facts set out in the following paragraphs proved to its satisfaction on the balance of probabilities.
(ii) On 19 October 1999, the applicant was diagnosed by Dr A J Taggart, a Consultant Rheumatologist, as having fibromyalgia (FM), or Chronic Fatigue Syndrome. He made his application to the tribunal on 30 October 2000, by which time he had had that condition for at least 12 months. The respondent did not dispute that the applicant suffers from FM. This is capable of constituting a physical impairment (See O'Neill –v- Symn & Co Ltd [1998] ICR 481). They also concede that his impairment is likely to be long term.
(iii) At the time of his application and at the date of the hearing the applicant was on medication, Ciparmil, an anti-depressant and Stilnoct (sleeping tablets). We find from the medical evidence that medication has only had a minimal impact on his condition.
In cross-examination, he denied exaggerating his symptoms.
(ii) The applicant's evidence was supported by that of his GP, Dr Wilson, who had been his family doctor for over 21 years. He was of the view that the applicant had given an honest description of his symptoms, and that they were getting worse. His opinion was that the applicant's condition affected him in a way that was more than trivial.
(ii) He had been declared unfit for work by Dr McCrea in May 2000. Dr McCrea, who had been seeing the applicant since 1998, had certified him as unfit because of the applicant's grave agitation and distress on the day of the consultation. The issue at that time was about the applicant's ability to do his job. Dr McCrea was aware of Dr Taggart's diagnosis of FM, and did not disagree with it. He saw no substantial change in the applicant's condition in respect of FM. He also found no direct link between the applicant's symptoms of FM and the symptoms of distress and agitation which precipitated the applicant's period of absence from work. The applicant was struggling with his job, and it was ultimately decided that he should not come back to that particular job because of the risk of relapse.
(iii) Although the applicant was certified as being off work with FM during the period in question, it was not Dr McCrea who provided the sickness absence forms, and he would not have been aware of their contents.
(iv) Since returning to work in 2001, the applicant has not lost any time off work through sickness absence, though he states that he has taken an unspecified time off as annual leave when he was unwell.
(ii) A medical report of 8 May 2002 from Dr Gary Wright, a consultant rheumatologist concluded that the applicant "does not suffer from a physical or mental impairment which has a substantial effect on his ability to carry out normal day-to-day activities. In particular he has no impairment which would affect his ability to carry out activities in paragraph 4(1) [of Schedule 1] of the Disability Discrimination Act 1995, apart from those of a trivial nature".
(iii) The conclusions of Dr Wright are supported by a further report dated 16 August 2002 from Dr J N Scott who essentially agrees with the former's summary and conclusions. He goes on to state that "[d]espite earlier pessimistic estimations, which are based upon the results of untreated cases [of FM], progress is good in subjects who willingly submit to a relevant rehab program. This is almost entirely dependent upon the subjects' insight and motivation".
(iv) The tribunal is conscious that the time at which to assess the disability is the time of the alleged discriminatory act (in this case October 2000), but we consider, in the absence of any suggestion that the applicant's condition had improved in the meantime, that medical evidence contained in reports from 2002 is relevant.
(v) When the conclusions of these specialist doctors (who were retained by the applicant) were put to him, he did not accept them. He criticised what he said was the short time Dr Wright had taken for a consultation, and maintained that the only person who could diagnose his condition was his GP, Dr Wilson. Dr Wilson stated, however, that he could not disagree with this medical evidence, nor with that of Dr McCrea, to which further referral is made below.
(ii) He gave evidence that at one end of the scale there were patients with FM who were considerably incapacitated. For example, they were wheelchair bound, or their memory and concentration were impaired, or they required help with personal tasks. At the other end of the scale were those who were able to function reasonably well.
(iii) His assessment of the applicant was that he was in the middle of the range. It was difficult to speculate on the likely prognosis. It was, however, reasonable to assume his symptoms would continue for the foreseeable future. The fact that the applicant was able to manage, and able to come to work, suggested he could continue to manage at the level he was doing.
(iv) Dr McCrea had been involved in other cases where he considered that persons suffering from FM were disabled within the meaning of the Disability Discrimination Act 1995.
In the case of the applicant, he concurred with the conclusions of Dr Wright and Dr Scott, and he too concluded that the applicant's impairment did not have a substantial adverse effect on his ability to carry out the normal day-to-day activities specified in paragraph 4(i) of Schedule 1 of the 1995 Act.
(v) At his examination of the applicant on 18 December 2000, he had proceeded by way of his observations of the applicant, and by reference to a Disability questionnaire, which, under the various headings of mobility, manual dexterity and physical co-ordination etc, set out the examples in the subdivisions in Guidance under the Act as to those matters which it would be reasonable to regard as having a substantial adverse effect on someone's ability to carry out normal day-to-day activities. He did not find that the applicant was adversely affected in any of those respects listed in paragraph C4 of the guidance.
The tribunal has had regard to the oral evidence, the medical evidence, the submissions made on behalf of the parties, the provisions of the 1995 Act, and the Code of Practice and the Guidance.
It has noted the conflict in the medical evidence given by the applicant's GP, Dr Wilson, on the one hand, and the evidence of Dr Wright, Dr Scott, and Dr McCrea on the other hand.
However, having regard to the preponderance of the medical evidence, and the oral evidence which we have heard which suggests that since 1998 the applicant's condition has not progressed, but has remained relatively static, we are not satisfied that his impairment has a substantial adverse effect on his ability to carry out normal day-to-day activities.
We therefore find, on the determination of the preliminary issue, that the applicant does not have a disability within the meaning of section 1 of the Disability Discrimination Act 1995.
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Date and place of hearing: 29 November 2002, Belfast
Date decision recorded in register and issued to parties: