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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Maitland v University of Ulster [2004] NIIT 2415_02 (01 September 2004)
URL: http://www.bailii.org/nie/cases/NIIT/2004/2415_02.html
Cite as: [2004] NIIT 2415_02, [2004] NIIT 2415_2
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- The issue to be determined by the tribunal was as follows:-
- Section 1 of the Act provides that "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".
- Doctor G Loughrey MD, MRC, Psych, Consultant Psychiatrist on behalf of the applicant presented a psychiatric report. His diagnosis was that the applicant suffered from a Moderate Depressive Disorder, which constituted the mental impairment and which was more than minor or trivial and that the impairment had a long-term effect.
- Doctor F Browne, Consultant Forensic Psychiatrist, on behalf of the respondents provided a report and gave evidence. Doctor Browne said that it was reasonable to conclude that the applicant had been suffering from a clinically well recognised illness, namely a depressive illness. He raised doubts as to whether the applicant's illness was substantial and also raised doubts as to whether it satisfied paragraph (g) of Schedule 1 paragraph (4) of the Act which related to the day to day activities namely, "memory or ability to concentrate, learn or understand".
- Both Doctors would appear to have been asked to comment on whether the applicant had a disability within the meaning of the Act. Doctor Loughrey, in his second report, being of the opinion that her impairment fulfilled the criteria specified in the Act. However, Doctor Browne held a contrary opinion in that he considered it was not substantial and did not accept that her concentration was affected to a great extent. The tribunal would state that it is not the task of the medical expert to tell the tribunal whether an impairment was or was not substantial; this is a question which the tribunal itself has to answer.
- The applicant's evidence was that as a consequence of stress at work in April 2001 she went on sick leave and was prescribed Prozac by her Doctor. She returned to work after meeting with management who had agreed to provide her with IT support and more management support. However in March 2002 she went on sick leave again due to work-related stress and was off for 5 months. Her evidence to the tribunal was that her concentration levels were very low, she used to be an avid reader of books but could not concentration now, she frequently had to return videos to the hire shop as she had already seen them, her husband had to go shopping with her as she would buy things which they did not need. On her return to work she could not remember phone numbers, she had to refer to manuals to check if she was doing things correctly. Her lack of concentration affected her ability to learn new rules. She eventually told management she could not cope. She changed jobs in April 2003 and this appears to have been beneficial to her.
- Counsel for the respondents submitted that the applicant's disability was not of a substantial nature. He pointed out that Doctor Loughrey accepted that as regards normal day to day activities the applicant was relying on "memory or ability to concentrate, learn or understand". He contended that the applicant did not provide sufficient evidence regarding her ability to carry out day to day activities. He submitted she did not suffer a disability within the meaning of the Act.
- Counsel for the applicant said that both Doctors had agreed that she suffered from a clinically well recognised illness namely a depressive illness. The applicant had suffered 2 acute attacks of depression and certainly these could not be deemed to be of a minor or trivial nature and she asked the tribunal to accept that the impairment was of a substantial nature. She drew attention to the fact that the applicant was still on medication and there could be no doubt that the impairment has had a long-term effect. She was recorded as early as 1998 as suffering from depression and sometimes it was so acute she could not leave home. She submitted it was clear that the applicant came within the meaning of Disability in Section 1 of the Disability Discrimination Act.
- Having carefully considered Doctor Loughrey's and Doctor Browne's reports and their evidence to the tribunal and having given consideration to paragraph C20 of the Guidance the tribunal are satisfied that the applicant suffered from a mental impairment which was substantial and had a long-term effect. In arriving at this conclusion the tribunal had regard to paragraph L1321.02 Division 2 Harvey on Industrial Relations and Employment Law;-
CASE REF: 2415/02
APPLICANT: Joan Maitland
RESPONDENTS: 1. University of Ulster
2. Peter Hope
3. C V Hamill
4. R Magee
The unanimous decision of the tribunal is that the applicant had a disability within the meaning of Section 1 of the Disability Discrimination Act 1995.
Appearances:
The applicant was represented by Ms McKenna BL, instructed by Francis Hanna & Co, Solicitors
The respondents were represented by Mr B Mulqueen BL, instructed by University of Ulster
"whether the applicant has a disability within the meaning of Section 1 of the Disability Discrimination Act 1995?"
SUBMISSIONS
CONCLUSION OF THE TRIBUNAL
While the view of Doctors on the nature and extent of claimed disability is certainly relevant, at the end of the day the crucial issue is one for the tribunal itself to decide on all the evidence. That point is emphasised Abadeh v British Telecommunications PLC [2001] IRLR 23 where the EAT stated that it is not the job of the expert to say whether impairments were or were not substantial. Doctors may often express their own views on whether the statutory definition is met, and this can cause problems. If the Doctor in giving evidence strays into territory which is properly the tribunals, a tribunal which finds itself in agreement with him or her may be attacked for having misdirected itself in law by accepting the Doctor's conclusions instead of coming to its own view on the totality of the evidence".
Chairman:
Date and place of hearing:
Date decision recorded in register and issued to parties: