Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

CASE REF: 2039/03

CLAIMANT: William Owens

RESPONDENT: Fisheries Conservancy Board for Northern Ireland

DECISION ON A PRE-HEARING REVIEW

The claimant has a disability within the meaning of Section 1 of the Disability Discrimination Act 1995.

Constitution of Tribunal:

Chairman: Mr M O'Brien

Appearances:

The Claimant was represented by Mr M Lavery, of Counsel, instructed by Anderson Agnew & Co., Solicitors.

The Respondent was represented by Mr K Denvir, of Counsel, instructed by O'Rourke McDonald and Tweed, Solicitors.

The Issue to be Decided

1. At a Case Management Conference Discussion held on 4 April 2005, the Vice President of the Industrial Tribunal directed that the matter should be listed on 19 September 2005 to determine the following issue;

"Whether the claimant has a disability within the meaning of the Disability Discrimination Act 1995"

Sources of Evidence

2. The claimant gave evidence and was cross-examined.
3. The Tribunal also considered medical reports, which were agreed between the parties.
4. The respondent called no evidence, but made written and oral submissions.

Findings of Fact

5. At section 11 of his claim, presented to the Tribunal on 30 June 2003, the claimant asserted the respondent had discriminated against him on ground of a disability. At section 12 of the claim, the claimant asserted he had experienced this discriminatory treatment from 1989 to date. At section 12 of the claim, the claimant states "I believe that I am a disabled person". By its response, presented on 29 July 2003, the respondent asserted that it "denies any treatment discriminated against the applicant".
6. I find the claimant was employed by the respondent from 1984 on an ACE scheme, and from 1985 as a water bailiff. From approximately 1989 the claimant felt under stress in the performance of his duties as a water bailiff. He was prescribed medication by his GP. The claimant has been prescribed anti-depressant medication. From the claimant's GP notes, I find the claimant was prescribed Inderal LA at a dosage of 160mg on 17 July 1993. GP referral notes to Holywell Hospital, dated 21 November 1994, indicate the claimant was prescribed Lustral. At that time, he presented to the GP as "very edgy and snappy at home, poor sleeping and appetite and tearful at times for no reason… [The GP wondered] if some stress management would be of benefit to him".
7. A medical report, dated 24 November 1995, from Dr J D Simpson (the claimant's GP) states;

"This man first attended me on 15^th September 1989 complaining of being very tense and nervous because of trouble at work…Mr Owens had further consultations about trouble at work on 22 October 1991 and 18^th November 1991. By this time he was very upset and tearful regarding his work situation as he was not able to cope with pressure from his superiors regarding reports he had made on a fish kill. I got the impression that this man was meticulous at his work and recorded absolutely everything and reported every person he saw transgressing…He was treated at that time for reactive depression and was off work until 10 February 1992.

Sometimes when William was seen at the surgery he was very depressed, crying and shaking and on every occasion he related this to major problems which had to be settled at work…He was further seen in March, April and June 0f 1992 with all consultations relating to stress at work. There was a break then until February 1993, when he was again under severe stress…He was off work at that time until 14 April 1993. In July the patient again attended with anxiety and stress and was prescribed different anxiolytic tablets, viz: Lorazepam and later on Inderal LA…

Mr Owens attended again in October 1994 with anxiety as a result of problems with his boss at work. He was still taking Inderal tablets. He was also seen in November when he was changed to anti-depressant tablets called Lustral…

In summary, this man has suffered from anxiety and stress due to pressure from his superiors at work since 1989.

8. The claimant has been referred to Dr Alice Haller (Consultant Clinical Psychologist). Dr Haller first saw the claimant in February 1995. Dr Haller's report, dated 24 January 1996, states;

"Objectively, his mood was depressed…

Therapeutic intervention has included cognitive therapy for depression and teaching anxiety management techniques…"

9. The Tribunal contrasted this report with that dated 2 February 1996 from Dr Haller, in which she refers to the claimant "experiencing stress related symptoms as a result of cumulative effects of difficulties at work over a number of years". Dr Haller discharged the claimant in February 1996.
10. The Tribunal also considered a medical report from Dr P A E Brown (GP) dated 14 June 2001, in which he described the "…stress as totally work related. It has led to a gradual erosion of his self-confidence and it ended up with him being quite depressed".
11. The claimant was interviewed by Dr Fred Browne (Consultant Forensic Psychiatrist) on 12 January 2005. In a report requested by the respondent's solicitors, Dr Browne concluded;

"It is difficult to make an accurate diagnosis of Mr Owens' previous mental condition because of his difficulty describing his symptoms and the lack of availability of other information. The information currently available would suggest that Mr Owens may have had a mixed anxiety and depressive disorder. This is classified as F41.2 in the ICD10 Classification of Mental and Behavioural Disorders published by the World Health Organisation…It might be stated that mixed anxiety and depressive disorder is an example of one of the many relatively mild conditions that are classified in ICD10.

As regards whether Mr Owens' condition has a "substantial" adverse effect, Mr Owens told me that he took time off work because of the way he was feeling. He also described feeling unable at times to approach a fisherman to ask for his licence. Mr Owens did not describe any difficulty with his memory, learning or understanding. He complained of subjective difficulty with concentration, but did not describe any specific difficulties with his job on account of poor concentration... At interview, I noted he was preoccupied with certain details of his case. There was no indication of impaired concentration or attention.

Mr Owens did not demonstrate difficulties with perception of the risk of physical danger…

12. A psychological report has been obtained from Mr Míchéal Gallagher (Consultant Clinical Psychologist) at the request of the claimant's solicitors, and dated 23 March 2005. This was the first specialist referral initiated by the claimant since he was discharged from Dr Alice Haller in February 1996. Mr Gallagher considered "Mr Owens has reported many of the symptoms of depression and anxiety: sleep disturbance and nightmares, low mood, tearfulness, forgetfulness etc…"
13. The claimant finds the medication he has taken for more than ten years has helped somewhat, but he still feels of low mood, and that his condition makes his job very difficult to do. He has taken periods of sick leave from his employment. Moreover, he feels his social skills are impaired, and that he tends to avoid people. He has been married 28 years and his personal relationships are very good. The claimant undertakes some relaxation techniques, and avoids work-related form-filling. However, he experiences some panic attacks by day and by night, and his evidence suggests a degree of paranoia. During these panic attacks, he has had to stop the car he is driving until the attack abates.
14. The claimant applied for the position of team leader in January 2001. The application form for the job gave a description of disability as defined by section 1 of the Disability Discrimination Act 1995 Act as "either a physical or mental impairment which has a substantial long term (12 months +) adverse effect on a person's ability to carry out normal day to day activities". The claimant ticked the box to indicate that he did not have a disability pursuant to this statutory definition. The claimant's explanation for this is that he does not like to think of himself as disabled, although in January 2001 he felt he would attempt to do the duties of team leader.

Applicable Law

15. The applicable law in respect of disability is to be found in section 1 of the Disability Discrimination Act 1995 ["the 1995 Act"], which provides;

1. – (1) 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.

16. Schedule 1 to the 1995 Act provides the conditions to be satisfied if impairment is to be considered long-term^[1]; what are normal day-to-day activities^[2]: and substantial adverse effect^[3]. Paragraph 1(1) of Schedule 1 provides "mental impairment" includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness"

The Decision of the Tribunal

17. The Tribunal has considered all the evidence before it – oral and documentary, and all the submissions.
18. In deciding whether the claimant has a disability, the tribunal has addressed separately the four questions set out by the Employment Appeal Tribunal in Goodwin v. The Patent Office [1999] IRLR 4, and the further guidance of Her Majesty's Court of Appeal in Northern Ireland in the case of Ross v. Precision Industrial Services Limited & Du Pont (UK) Limited [2005] NICA 25. In deciding whether or not there is a disability, Goodwin enunciated the questions to be considered as;

(i) Does the claimant have an impairment which is either mental or physical?

(ii) Does the impairment affect the claimant's ability to carry out normal day-to-day activities in one of the respects set out in Schedule 1 paragraph 4(1) of the 1995 Act, and does it have an adverse affect?

(iii) Is the adverse effect substantial?

(iv) Is the adverse effect long term?

19. Moreover, the tribunal has considered, very carefully, the guidance offered by the Employment Appeal Tribunal in Morgan v. Staffordshire University [2002] ICR 475. In that case the claimant had suffered stress and anxiety and depression, but this was held at first instance not to comprise a clinically well-recognised illness within the meaning of paragraph 1 of Schedule 1 to the 1995 Act. Thus, the claimant in Morgan was held not to have a disability. Dismissing the claimant's appeal, the EAT held that, generally, there are three – or possibly four – routes to establishing a mental impairment within the 1995 Act, viz: (i) proof of a mental illness specifically mentioned as such within the World Health Organisation's International Classification of Diseases, (ii) proof of a mental illness specifically mentioned as such in some other classification of very wide professional acceptance, (iii) proof by other means of a medical illness recognised by a respected body of medical opinion, and (iv) proof of the existence of a state recognisable as mental impairment, neither resulting from nor consisting of a mental illness, which could be accepted as a mental impairment within the 1995 Act because the statutory definition was inclusive only, rather than purporting to exclude anything not expressly described within it. However, the EAT held that the latter category was likely to be rarely, if ever, invoked and would require substantial and very specific medical evidence to support its existence, and that the use of words such as "anxiety", "stress" and "depression" in medical reports could not, without further explanation, amount to proof of a mental impairment within the Act, and the notes made by the claimant's general practitioner, which spoke of him suffering from "clinical depression" could not be read as intending to indicate the presence of a classified or classifiable mental illness.

The First Question – does the claimant have a mental impairment?

20. The tribunal has been persuaded not only by the claimant's GP notes, but also by the reports of Dr Haller, Dr Browne and Mr Gallagher. These reports were agreed between the parties. Dr Browne's report (which was requested by the respondent) clearly states that the claimant suffers from a "mixed anxiety and depressive disorder. This is classified as F41.2 in the ICD10 Classification of Mental and Behavioural Disorders published by the WHO". This classification of the claimant's condition helpfully allows the Tribunal to address the findings it has made according to the first category of Morgan, above. Whilst Dr Browne found the claimant's condition was categorised as relatively mild, he questioned the substantial nature of the condition on the claimant's day-to-day activities.
21. The tribunal is satisfied the claimant's condition is, on balance, one which should be considered as a mental impairment, pursuant to section 1 and paragraph 1 of Schedule 1 to the 1995 Act. Mr Owens has been prescribed varying medications of an anti-depressant nature since 1993; he was prescribed Lustral in November 1994. Dr Simpson's report of 24 November 1995 satisfies me the claimant was being treated for reactive depression from November 1991 to February 1992, during which time he was unfit for work. At various consultations from 15 September 1989 to 10 February 1992, he presented to his GP when he was considered to be "very depressed, crying and shaking". This diagnosis of depression was corroborated by Dr Haller in her report of 24 January 1996, when she described the claimant as suffering from depression. Although Dr Haller does not refer to depression in her later report of 2 February 1996, Dr P A E Brown (the claimant's other GP) did find the claimant "quite depressed" in June 2001. Mr Gallagher found the claimant showed symptoms of depression and anxiety in March 2005.
22. These views and opinions, from a range of general and specialist opinion, lead the Tribunal to conclude the claimant is suffering from a mental impairment, even though he disavowed such a disability in his application form for the team leader's job in January 2001. In ticking the box to indicate he had no such disability, even though it was clearly stated how the disability was defined, the claimant was exercising a subjective assessment of his condition which conflicted with the objective assessments of the medical opinions referred to above.

The Second Question – does the impairment affect the claimant's ability to carry out day-to-day activities, and does it have an adverse effect?

23. In respect of the claimant's day-to-day activities, the tribunal is satisfied the claimant meets the provisions of paragraph 4(1) (g) of Schedule 1 to the 1995 Act. In his report of 23 March 2005, Mr Gallagher found the claimant had "many of the symptoms of depression and anxiety: sleep disturbance and nightmares, low mood, tearfulness and forgetfulness…" Likewise, the fact that the claimant has had to stop his car owing to panic attacks indicates a perception of the risk of physical danger because of same. The tribunal is satisfied that driving a car is a day-to-day activity. To my mind, such actions satisfy paragraph 4(1) (h) of Schedule 1 to the 1995 Act, which – it must be noted – does not require the claimant to establish a difficulty with perception of the risk of physical danger, as Dr Browne stated in his report. I have

considered the Guidance on matters to be taken into account in determining questions relating to the definition of disability^[4], as the tribunal is required to do by section 3(3) of the 1995 Act. The tribunal is satisfied that the impact of the mental impairment on the claimant's ability to perform the day-to-day activities referred to above is adverse.

The Third Question – is the effect substantial?

24. The tribunal is satisfied that the claimant's impairment has a substantial adverse effect on his ability to carry out day to day activities, pursuant to paragraph 5 of Schedule 1 to the 1995 Act. From the Guidance, it is clear that a substantial effect is one that is more than "minor" or "trivial"^[5]. The Guidance allows the tribunal to consider the cumulative effect of the claimant's forgetfulness and perception of the risk of physical danger^[6], and the effects of modifications to behaviour to prevent or reduce the effects of impairment on normal day-to-day activities^[7]. The claimant has had to take extensive periods off work because of his impairment, and he avoids people as a coping mechanism when his mood is low. Moreover, paragraph C21 of the Guidance advises it would be reasonable to regard as having a substantial adverse effect an inability to operate safely properly-maintained equipment. Accordingly, the tribunal is satisfied the finding of fact the claimant has had to stop his car owing to panic and anxiety shows that the impairment is indeed substantial.

The Fourth Question – is the adverse effect long term?

25. The claimant's mental impairment (classified as F41.2 in the ICD10 Classification of Mental and Behavioural Disorders published by the WHO) has been very long standing. It appears to have onset with sufficient seriousness in October / November 1991, and has not substantially ameliorated since then. Thus the claimant satisfies the provisions of paragraph 2(1) (a) of Schedule 1 to the 1995 Act.
26. The Tribunal is satisfied the claimant's impairment is in a wholly different category from that set out in Morgan v. Staffordshire University. It is a mixed anxiety and depressive disorder, which is one of the relatively mild conditions set out ion ICD10 of the WHO's Classification of Mental and Behavioural Disorders. It satisfies the provisions of section 1(1) of the 1995 Act. Accordingly, the tribunal determines the issue set out in paragraph 1 above in the affirmative; the claimant has a disability within the meaning of Section 1 of the Disability Discrimination Act 1995.

Chairman:

Date and Place of Hearing: 19 September 2005, Belfast.

Date decision recorded in register and issued to parties:

Note 1   Paragraph 2 of Schedule 1    [Back]

Note 2   Paragraph 4 of Schedule 1    [Back]

Note 3   Paragraph 4 of Schedule 1    [Back]

Note 4   Issued by the Department of Economic Development under section 3 of the 1995 Act    [Back]

Note 5   paragraph A1 of the Guidance    [Back]

Note 6   paragraphs A4-A6 of the Guidance    [Back]

Note 7   paragraphs A7-A9 of the Guidance     [Back]