Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 2640/02

APPLICANT: Joseph Sullivan

RESPONDENT: Department of Regional Development

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the tribunal 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 Mark O'Connor, Barrister-at-Law, instructed by P Duffy & Co, Solicitors.

The respondent was represented by Mr Aidan Sands, Barrister-at-Law, instructed by the respondent department.

1. A preliminary hearing was arranged to consider the following issue: "Whether there was a disability within the meaning of Section 1 of the Disability Discrimination Act 1995".
2. Section 1 of the Disability Discrimination Act 1995 provides: 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".
3. In Goodwin-v-the Patent Office [1999] IRLR 6 Mr J Morrison set out guidance to Industrial Tribunals in Disability cases. Referring to Section 1 he said the words require a tribunal to look at the evidence by reference to 4 different conditions:

(i) the impairment condition

(ii) the adverse effect condition

(iii) the substantial condition

(iv) the long term condition

4. In this case it was accepted by the representatives of the parties that the applicant had a physical impairment viz tennis elbow and that it had lasted in excess of 12 months. The disputed matters were the adverse effect condition and the substantial condition.
5. The published Guidance states a "substantial" effect is more than would be produced by the sort of mental or physical conditions experienced by many people which have only minor effects. A "substantial" effect is one which is more than "minor" or "trivial".

Schedule 1 of the Act sets out the position in relation to "normal day-to-day activities". Regulation 4(1) provides 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: mobility; manual dexterity; physical co-ordination; continence; ability to lift; carry or otherwise move everyday objects; speech; hearing or eyesight; memory or ability to concentrate; learn or understand; perception of risk of physical danger.

6. Having heard the evidence of the applicant and considered the documents produced including the applicant's GP records and reports from Mr C T Andrews Consultant Orthopaedic Surgeon, Dr A Fox, applicant's GP, Mr J W Calderwood Consultant Orthopaedic Surgeon, Dr G D Wright and Dr M B Finch Consultant Rheumatologists and OHS reports from Doctors Rogers, Diamond and Beattie the tribunal found the following facts:
7. .1 The applicant was employed by the respondent as a Class 3 Operator in Belfast Waste Management. The job entailed manual labour with some heavy lifting. On 11 April 2000 in the course of his work the applicant slipped and fell injuring his left elbow. The condition of his left elbow was subsequently diagnosed as "tennis elbow".

6.2 The applicant is right-handed.

8. 3 The applicant was unable to work for a period of time after the accident. He returned for a brief period of 2-3 weeks in May/June 2000, and for just over a week in February 2001 after he had had 12 laser treatments, but found that work aggravated the condition. He had 2 cortisone injections in his left elbow, one in August 2002 and the other in January 2003. These helped. He chose not to take painkillers but used a deep heat muscle rub.
9. .4 In relation to normal day-to-day activities his evidence was that because of the problem with his left arm, he had a number of difficulties: he was slow getting dressed in that it took him longer to do buttons, zips and shoelaces; getting in and out of the bath; lifting heavy pots and casseroles, opening tins; he had to give up his DIY activity – could not hang wallpaper or paint; with shopping – he could not carry a full bag of groceries with his left arm; in relation to household chores he could not wash, mop, brush or use vacuum cleaner; he had had to give up gardening because he could not use a spade, rake or hoe, strimmer or hedge clippers; he had difficulty riding his bicycle because he could not effectively brake using only his right hand; swimming – found it difficult to extend his left arm or bend it; he could lift a book but holding it to read put pressure on his left arm after a time; he attended a computer course and could print through not expertly; he accepted he could lift a 5lb bag of potatoes with his left hand but couldn't hold it for any length of time. He accepted he could carry a breakfast tray provided it was not too heavy.

He said his ability to do day-to-day tasks was worse when he was working in that he had more pain.

When questioned the applicant accepted the main thing he could not do was lifting heavy weights. He also accepted that while some activities initially caused pain they subsequently caused discomfort rather than pain.

10. .5 The medical evidence was as follows:-

Dr Beattie who examined him on 7 September 2000, 5 months after his accident, found decreased grip in his left hand and decreased flexion and extension in his left forearm. The applicant told Mr Andrews who examined him on 6 December 2000 that his left elbow was painful on lifting or gripping anything firmly. On examination of his left elbow

Mr Andrews found no abnormalities with no muscle wasting and a full range of movement but significant tenderness over the lateral epicondyle of the left elbow and tenderness in proximal muscle bellies of the wrist and finger extensors.

Dr Diamond who saw him on 10 January 2001 found full range of movement and no tenderness in neck, shoulder, elbow, with power and grip grade 5 and equal reflexes in right and left wrists.

On 5 September 2001 Mr Andrews found mild tenderness where he had previously found significant tenderness. He found full range of movement in left elbow with full extension on flexion, full pronation and supination and that grip strength was good. Applicant's complaints at this time were he was unable to do anything heavy with left elbow and that gripping or lifting caused discomfort in it.

On 29 May 2001 Dr Rodgers "found power slightly decreased".

On 23 January 2002 Dr Finch found left elbow joint had full range of movement and tenderness was diffuse over the left elbow and olecrannon area. He commented, "He has no signs to suggest disuse of the left arm. He has normal joints, normal musculature to allow him to have a normal grip left hand".

The applicant attended his GP, Dr Cox on 14 May 2002. He told Dr Cox he still experienced soreness of his left elbow but could do virtually anything except heavy lifting or manoeuvres requiring the full force of his arm. At this stage applicant wanted to get back to lighter work.

Dr Wright examined the applicant on 1 August 2002 and found no evidence of muscle wasting. He found diffuse tenderness around elbow and forearm but full range of movement in elbow joint. He commented, "There was no obvious muscle wasting or evidence of disuse and indeed there was callous formation evident on both hands". Mr Andrews who re-examined on 1 December 2002 found mild tenderness over lateral epicondryl of left elbow but full range of pain free movement in left elbow and no muscle wasting throughout the left upper limb.

Mr Calderwood examined on 22 May 2003 and his findings were similar to those of Mr Andrews.

Finally, Mr Andrews re-examined the applicant on 1 February 2004. The applicant told him that apart from occasional numbness in his middle and ring fingers, he was otherwise relatively asymptomatic and the symptoms were much improved. Also that his hobbies were not affected. On examination Mr Andrews found no significant tenderness around any of the bony aspects or soft tissue elements of the left elbow. Range of movement was full, also full pronation and supination.

11. .6 The applicant had also suffered from abscesses under his arms and in his groin for a number of years. He claimed these could be quite incapacitating. The evidence before the tribunal did not confirm the frequency or severity of these was such as to affect his ability to carry out normal day-to-day activities.
12. The Adverse Effect Condition

The activities relied upon were manual dexterity and ability to lift, carry or otherwise move everyday objects. Physical co-ordination was included in applicant's replies to Particulars but not pursued at the hearing which in the tribunal's view was the correct course.

The tribunal did not accept all of the applicant's evidence in relation to the difficulties he had or the things he could not do. Firstly, despite what he said a number of things could be done using one hand bearing in mind he was right handed eg brushing, mopping and hovering, weeding, raking, hoeing, getting in and out of bath or shower. Secondly taking into account the medical evidence it was not satisfied that the use of his left arm and left hand was as limited as he suggested.

It accepted however that he could not do wallpapering or use hedge clippers but neither of these would have been day to day or frequent activities.

Although normal day-to-day activities are not work activities, in Law Hospitals NHS Trust-v-Rush [2001] IRLR 611 the Scottish Court of Sessions accepted it was right for a tribunal to have regard to how an applicant could carry out duties at work in deciding whether or not she was within, the provisions of the Disability Discrimination Act. Harvey on Industrial Relations and Employment Law commenting on this case at para 1323.01 said "It is obvious that some of the things done at work will be the same as things done in the home…. It would be odd if, just because they were done in a work context, they could not be considered in deciding whether the definition of disability was met". In that case the applicant was a nurse.

In Cruickshank-v- A W Motorcast Limited [2002] IRLR 24 (EAT) the applicant suffered severe asthma at work because of exposure to fumes. The tribunal found he was not disabled within the meaning of the Act because he had not established that the asthma had a substantial and long term effect on his ability to carry out normal day-to-day activities. The EAT however held that in assessing whether a disability has a substantial and long term effect on the ability to do everyday tasks, it is not appropriate to confine the evaluation to the extent to which the applicant is disabled only in a normal day-to-day environment.

In the present case however the duties which the applicant could not carry out in work were heavy lifting and manoeuvres requiring the full force of his arm.

The tribunal was satisfied that the applicant would not be involved in heavy lifting or using the full force of his left arm in the same way in his normal day-to-day activities.

13. The Substantial Condition

In deciding how substantial is an adverse effect, the tribunal should look at what the applicant cannot do rather than what he can do. (Morrison J in Goodwin-v-Patent Office [1999] IRLR 4 at 34) see paragraph 7 above.

The Guidance states the cumulative effects of an impairment are to be taken into account in assessing its seriousness, and also the ability of a person to modify his behaviour to cope with an impairment may be of relevant in deciding whether it is "substantial". In Elpe-v-Metropolitan Police Commissioner [2001] IRLR 605 the EAT emphasised that when looking at the difficulties an applicant has, the test was whether, looking at the evidence as a whole and not in relation to individual tasks, the impairment had had a substantial adverse effect.

Considering the evidence the tribunal was satisfied that the level of disability claimed by the applicant in respect of his normal day-to-day activities was not substantiated by the clinical findings of the doctors who examined him.

The tribunal was not satisfied that either the adverse effect condition or the substantial condition were satisfied. Its decision therefore is that the applicant did not have a disability within the meaning of Section 1 of the Disability Discrimination Act.

Chairman:

Date and place of hearing:

Date decision recorded in register and issued to parties: