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THE INDUSTRIAL TRIBUNALS

CASE REF NO: 1736/01

APPLICANT: Kerry Smith

RESPONDENTS: 1. Social Security Agency

2. Department of Social Development

3. E Mageean

4. P Magee

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the tribunal is that the applicant has not proved that she had a disability within the meaning of Section 1 of the Disability Discrimination Act 1995.

APPEARANCES:

APPLICANT: Mr I Rosbotham, Full-Time Official of NIPSA.

RESPONDENTS: Mr E McArdle, Barrister-at-Law, instructed by Departmental Solicitors Office for all respondents.

The applicant was employed as a Clerical Officer with the Social Security Agency from July 1992. She had travelled to Belfast for some four years from Coleraine and then in or about 1996 she moved to Belfast on a temporary basis. At the end of 1999 she gave up her flat in Belfast and moved home to Coleraine. She applied at that time to be transferred to Coleraine and her reason was that she suffered from irritable bowel syndrome. The applicant gave evidence about this condition and stated that as a result she had panic attacks and she was anxious and depressed. She was put on Diazepam which made her feel tired. The tribunal heard evidence from her general practitioner that she had a number of visits at the end of 1999. She was off work for a period of seven months in 2000. The tribunal noted that the sickness certificates were provided on either a one weekly or two weekly basis. The applicant had investigation for backpain and the occupational health service was also involved in March/April 2000. She was seen by a gynaecologist on 31 October 2000 and was diagnosed as having an ovarian cyst. She was referred to a physiotherapist and in turn in July 2002 she was referred to a community psychiatric nurse for strategies to help her cope with problems in her life. The general practitioner stated that her anxiety was the main problem and it could give rise to panic attacks. She did not take sleeping pills. The doctor stated that in her experience a person can learn to control irritable bowel syndrome but it does re-occur if there is stress. The doctor agreed in cross-examination that the applicant appeared to be more relaxed now that she is working in Coleraine. She is still on anti-depressants. The doctor allowed her to drive throughout the period in question.

Dr Rodgers, who was the respondent's Occupational Health Service doctor, gave information relating to the applicant's visits with the Service. She agreed that the Occupational Health Service had recommended a transfer from Belfast to her home. She agreed that the applicant presented with an anxiety illness and at times has depression. When the doctor saw her in April 2001 the applicant was reasonably well and was at work and was not on any treatment.

Section 1(1) states, "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." The tribunal must focus on what is the impairment claimed and the applicant's representative stated that it was a mental impairment. There is obviously a physical impairment with the condition of irritable bowel syndrome but the tribunal considers that the applicant is able and has been able to manage this complaint so that it does not have a substantial adverse effect on her normal day to day activities. Both Dr McGurk and Dr Rodgers accept that the applicant has anxiety symptoms and these have manifested in periods of depression. From the evidence given to the tribunal the symptoms were worst at the end of 1999 and the year 2000 when she had decided to move from Belfast to Coleraine and hence was given the problem of a lengthy travelling time to go and return from work in Belfast. She applied for a transfer at this time and was helped by both her GP and Occupational Health Service who supported her application and in fact she was sent on a temporary transfer to Coleraine which we now understand has become permanent.

There has been case law in relation to what is a mental impairment. Whilst it is useful for both doctors to tell us that she suffers from anxiety and depression we have not been assisted by being given any classification of her illness such as one would expect to have been provided under the World Health Organisation's international classification of diseases. There was no evidence led as to whether the applicant's mental condition had been recognised in any publication or how her symptoms could be considered as mild, severe or chronic. She is on anti-depressants but that in itself does not lead a tribunal to believe that she suffers from a substantial adverse effect. We have to turn to the applicant's evidence as to how she is affected or was affected. She was off work for seven months but stated that during that time she was able to drive, she visited friends in their homes - although she did not go out to public places and socialise. She stated that she did some cooking, she slept for longer periods than would be normal. She stated that she did not sleep well but the tribunal accepted medical evidence that she was not on sleeping pills. When the tribunal considered Schedule 1 to the Act the impairment has to be considered if it affects one of a number of activities and in this case the applicant's representative focussed on Schedule 1 4(i)(g) which was the memory or ability to concentrate, learn or understand. To a lesser extent he mentioned (h) which was the perception of the risk of physical danger and that was in relation to driving to work. However the tribunal does not consider that the applicant has proved that there was a lack of perception of this physical danger. In relation to 4(i)(g) she stated that she had difficulty learning a new task at work and that her concentration was not good because she was tired. Whilst this may well be the case the tribunal does not consider that her evidence or any other witness's evidence has proved that this would have amounted to a substantial adverse effect. There are many people who do not sleep well and are tired at work but this does not in itself mean that the applicant could be considered to be disabled.

The other question that we have to consider is the long term effect. Certainly the irritable bowel syndrome is a condition that has continued but without further medical evidence it has not been proved to have a substantial effect on the applicant's day to day activities. The anxiety and depression symptoms seem to have been alleviated to a large extent by the applicant's transfer to the Coleraine office and although they may manifest themselves for periods of time the tribunal does not accept that this condition has a substantial adverse effect on the applicant's life.

In conclusion, whilst the tribunal accept that the applicant has suffered and continues to suffer from irritable bowel syndrome and has symptoms of anxiety and depression, the overall conclusion is that these conditions do not pose a substantial adverse effect on the applicant's ability to carry out normal day to day activities and we do not find that she is a disabled person as provided for in Section 1 of the Disability Discrimination Act 1995. Her claim of discrimination on this ground is dismissed.

____________________________________

M P PRICE

Vice President

Date and place of hearing: 16 September 2002, Belfast

Date decision recorded in register and issued to parties: