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THE INDUSTRIAL TRIBUNALS

CASE REF NO: 1500/02

APPLICANT: Anthony McCall

RESPONDENT: Bombardier Aerospace

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the Tribunal is that the applicant is not a disabled person under the provisions of Section 1 of the Disability Discrimination Act 1995.

APPEARANCES:

APPLICANT: Mr McAdam, Full-Time Official of AMICUS.

RESPONDENT: Mr R Murphy, Engineering Employers' Federation.

The applicant appeared and gave evidence. He stated that he had worked for 27 years with the respondents up until May 2001 when he started to suffer from pain in both his arms. He went to see his General Practitioner and then started undergoing a number of tests and referrals to consultants to try and ascertain what was the matter. He went on sick leave and did not return to work. He was assessed for redundancy and dismissed in March 2002. In the applicant's claim to the Tribunal he complained that he had been assessed for redundancy rather than offered consideration for ill-health retirement. The Tribunal accepted from the evidence that he had been assessed by Dr Jenkinson who is employed by Shorts and other organisations as an occupational health consultant. Dr Jenkinson saw him twice, once in October 2001 when he was on long-term sick leave and the second time was in January 2002 when he was asked to assess the applicant for acceptance by the trustees of the pension scheme for early retirement on the grounds of ill health.

The applicant in his evidence stated that he had always been a regular worker and he found the pain from his arms and then later his neck was extremely frustrating as he wanted to get on and do things around the house. He stated that he tried to keep doing

things around the house, he could rake up leaves and keep the grass cut in his garden but where he could have done this in a relatively short period of time he now finds that it takes a long time with stops in order to enable him to finish the task. He can walk but he says it has become more restricted. He is able to drive a car but states he only drives to pick up his wife from work in Boucher Crescent four days a week. He gets very depressed and anxious and frustrated with himself. He has taken anti-depressants. He stated that painkillers do not really help his condition. He wakes up in the middle of the night and is wide awake and finds it difficult to go back to sleep.

Dr Jenkinson agreed with the applicant that there was a diagnosis of fibromyalgia syndrome. He agreed that it is a recognised diagnosis but the prognosis varies. He stated that 60-70% of people get better and can go back to work. He described it as a collection of symptoms with pain being very common as well as sleep disturbance. There are various symptoms that are felt by different people and he agreed that the applicant could suffer from tiredness, pain and sleep disturbance. When he saw him in October 2001 he thought that it would be good to get the applicant back to work part-time and help to have a structure to his day and he completed a form accordingly. When he saw him in January to assess him for early retirement one of the criteria was that the applicant had to be permanently unfit for usual work with a future prognosis being the same. The applicant, in January, raised the issue of his neck and Dr Jenkinson arranged for an MRI scan which showed osteoarthritis which he stated was common in 40-50% of men of his age. Dr Jenkinson thought that there was exaggeration of symptoms and he made this diagnosis from observing the applicant informally and then asking him to complete movements on a formal basis. He did not recommend him for early retirement on grounds of ill health.

Findings of the Tribunal

The Act defines a disabled person as 'a person with 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'. That means that a person must have an impairment and in this case it is physical with depression being a mental follow-on from this. The impairment has to be substantial and the effects must be long term and these long term substantial effects must be adverse on normal day-to-day activities. Substantial effect is one which is more than minor or trivial. The Tribunal can accept that the applicant has suffered from the condition of fibromyalgia with its associated symptoms for at least 12 months. It is difficult to say whether it is likely to last for the rest of his life or not. Dr Jenkinson does not make this finding, and could not make the finding for the purposes of ill health retirement. The question which concerns us is namely normal day-to-day activities and the Act states that an impairment is only to be treated as affecting the person's ability to carry out normal day-to-day activities if it effects one of a number of conditions. In this case the conditions that the Tribunal has looked at are mobility, manual dexterity and physical co-ordination. We cannot say that the applicant has demonstrated a substantial restriction in his ability to carry out day-to-day activities. He is able to get out, he is able to walk, he is able to perform tasks in the garden, albeit slower than he was able to do before. He does not need assistance, he can get around unaided and he is able to control and drive a car on a regular basis, albeit for a journey across Belfast but he does not need assistance to do this.

In weighing up the effect on the applicant's normal day-to-day activities the Tribunal does not consider that he has demonstrated that there is a substantial adverse effect. It is obvious to the Tribunal that Mr McCall was an active man who went to work on a regular basis and has found this condition to be extremely frustrating. However we have to consider the case on the basis of the provisions of the Disability Discrimination Act and previous case law, in particular Goodwin -v- The Patent Office, 1999 IRLR 4, which gives guidance to Tribunals in cases such as these.

Since the hearing of this application the applicant's representative submitted a medical report from the applicant's GP dated 24 January 2002 which he alleged was deleted from correspondence to Dr Jenkinson in January 2002. The report does not affect the Tribunal's decision as it confirms the diagnosis of the applicant's condition at that time, and the applicant being unfit to work. The Tribunal is concerned to look at the issue of day-to-day activities as outlined above. The applicant has not discharged the burden of proof in relation to this claim and his originating application is dismissed.

____________________________________

M P PRICE

Vice President

Date and place of hearing: 17 January 2003, Belfast

Date decision recorded in register and issued to parties: