Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1006/05

CLAIMANT: Ivor William McKee Dunne

RESPONDENT: Northern Ireland Prison Service

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal on the preliminary issues are as follows:-

1. The claim of Sex Discrimination was lodged within three months of the act complained of and accordingly the tribunal has jurisdiction to deal with this claim.
2. The claim of Disability Discrimination was lodged within three months of the act of discrimination complained of and therefore the claim was lodged within time on the 4^th July 2005. Accordingly the tribunal has jurisdiction to deal with the claim.
3. The claimant is not a disabled person within the meaning of section 1 of the Disability Discrimination Act 1995 and his claim will be dismissed.

Constitution of Tribunal

Chairman (Sitting Alone): Miss E McCaffrey

Appearances

The claimant appeared in person and represented himself.

The Respondent was represented by Mr Coll, Barrister-at-Law, instructed by The Crown Solicitor's Office.

The Issues

There were three preliminary issues which the tribunal had to consider:-

4. Were the complaints (there were two claims, one of Sex Discrimination and one of Disability Discrimination) presented within the specified three month time limit.
5. If not, whether it was just and equitable in all the circumstances of the case for an industrial tribunal to consider the complaints despite the fact that they were out of time.
6. Whether the claimant was a disabled person within the meaning of Section 1 of the Disability Discrimination Act 1995.

The Facts

7. The facts in this case in relation to the time limit issues were relatively straightforward and were not disputed as between the parties. The claimant gave evidence on the issue of whether he was a disabled person and I am grateful to him for the frank and open way in which he gave his evidence. The facts found in this matter are as follows:
8. The claimant works for the Respondent as a Prison Officer working as a Hospital Officer within HMP Maghaberry. His employment commenced in July 1984 and continues to date.
9. The claimant had an accident at work in 2002 in which he was seriously injured. When the claimant resumed work on 24th April 2003 after his accident, he agreed with the Occupational Health Service assessment that he was not fit for prisoner contact. He was deployed in the Censor's office, which was away from the main hospital site. His concern was that this went on for a considerable period of time. He was assessed by the OHS every 3-4 months and on each occasion he was still found to be unfit for prisoner contact duties. On 7^th April 2005, he was seen again by the Occupational Health Service and again was assessed as not being fit for prisoner contact. He believed he was discriminated against on grounds of his disability. At or about the same time, five female nurses working in the prison hospital were pregnant. By a decision of the prison Governor, it was decided that they should not have prisoner contact because of their pregnancy, but should be found non-prisoner contact duties within the hospital. The claimant believed that he was being treated less favourably on grounds of his disability and his gender than his female colleagues.
10. The claimant had suffered from ulcerative colitis since 1993 and he also had two prolapsed discs, one in his lower back and one in his neck. He had suffered from these complaints from 1993 but had not had any time off work because of them and believed that he had not had any particular difficulties with these conditions. The claimant indicated that the treatment for his colitis was ongoing, that he did have difficult episodes of colitis when he suffered from quite heavy bleeding and diahorrea. If it was severe, he was constantly on the toilet for hours at a time and he believed this caused him difficulties in doing his work. However he had not taken time off work because he believed it was important for him to get on with doing as much as he possibly could.
11. In 2002, the claimant fell and sustained a fracture to his left elbow at work. When this fracture started to heal, the area around the ulna nerve in his elbow was causing difficulty and he started to lose sensation in his left hand. He was referred to an Orthopaedic Surgeon and received treatment for the matter but was still left with no feeling in his little finger or the ring finger on his left hand. He indicated that it was difficult for him to carry items with his left hand; he was inclined to drop items and could not use a hammer or a spanner for any length of time because of difficulties with his grip.
12. Some time before the claimant had broken his elbow he had had an operation to repair a hernia. Unfortunately the fall, which fractured his elbow, also upset the hernia again and he suffers from severe pain in his groin if he walks more that 600/700 yards. The claimant takes medication for this he says this makes him drowsy.
13. In relation to the disc problems in his back, the claimant indicated that he watched what he carried and how he lifted it. He avoided carrying heavy cases when going on holiday, but was able to carry a bag of files into the Tribunal. Before the injury the claimant said that he had been able to carry a 50 kilo bag of cement without any difficulty, but was not able to do this after the injury. He also said that he felt that he was restricted in farming activities around his home farm as he was no longer able to catch and hold animals due to his back problems and his hernia problems and had to ask for help. He also said that in recent years, partly because of his own difficulties and partly because of a severe injury suffered by his son, he had contracted in shearing of sheep and silage cutting. He indicated that the loss of sensation in his hand also hampered him lambing sheep.

DECISION

14. The first issue which I have to consider is the question of the time limit for bringing the two claims in this case. I will deal with these matters separately.

1. The Disability Discrimination Claim

15. When the claimant resumed work in April 2003 the Disability Discrimination Act 1995 did not apply to prison officers and the legislation was only extended to prison officers on the 1^st October 2004.
16. When the claimant resumed work on 24th April 2003 he agreed that he was not fit for prisoner contact and had no particular difficulty in working in the Censor's office. His concern was that this went on for a considerable period of time. On 7th April 2005 he was seen again by the Occupational Health Service and again was assessed as not being fit for prisoner contact. At or about the same time, 5 nurses working in the prison hospital were pregnant and by a decision of the prison Governor it was decided that they should not have prisoner contact because of their pregnancy, but should be found non-prisoner contact duties within the hospital. The claimant believed that he was being treated less favourably on grounds of his disability than his pregnant female colleagues.
17. The Disability Discrimination Act 1995 ("the DDA") provides in Schedule 3 paragraph 3(1) that proceedings must be brought before an industrial tribunal within three months of the act complained of. However paragraph 3(3) (b) indicates that any act extending over a period shall be treated as done at the end of that period.
18. The issue for me to decide is whether the decision to send the claimant to the Censor's office in April 2003, which decision was renewed after each Occupational Health assessment, was an act extending over a period of time, or whether the Occupational Health assessments were a series of discrete acts each of which is actionable or whether there are a number of acts which may provide evidence of a discriminatory policy, rule or practice.
19. I have taken account of the decision of the Court of Appeal of England and Wales in Henricks -v- Metropolitan Police Commissioner [2003] IRLR 96. The Court in that case indicated that the claimant must prove that the incidents complained of are linked to each other and that they are evidence of a continuing state of affairs. In Cast -v- Croydon College [1998] IRLR 318 (CA), the Court said that repeated considerations of the same matter can amount to separate acts of discrimination which means that time runs afresh in respect of each alleged discriminatory act. On that basis, I find that the Occupational Health Service's report on the claimant on 7^th April 2005, which renewed the decision that the claimant was not fit for prisoner contact work and that he should be deployed outside the hospital, is capable of amounting to an act of discrimination and time therefore began to run when that decision was made on the 7th April. Accordingly the claimant's complaint to the tribunal, which was lodged on 4^th July 2005, was lodged within the appropriate three month period. I also make the observation that the discrimination (if it is established) could only run from 1^st October 2004, the date when the 1995 Act was extended to prison officers.

2. The Sex Discrimination Claim

20. As has been set out above, the claimant had been working in the Censor's office since April 2003. He indicated that the alleged sex discrimination occurred on or about 14^th April 2005 when he alleges that pregnant female colleagues were re-deployed within the hospital after it was decided that they should not have prisoner contact. He alleges that this is sex discrimination and that he should have been re-deployed within the hospital rather than being sent to the Censor's office. Effectively his allegation is that the omission to deploy him within the hospital on the part of the respondent is contrary to Article 76 (6) (c) of the Sex Discrimination (Northern Ireland) Order 1976.
21. On this point, I have taken into account the decision of the Employment Appeal Tribunal in the case of Swithland Motors -v- Clarke [1994] ICR. In that case the respondent company had made a decision that if it succeeded in buying a particular business, it would follow its policy of having female only sales staff. So it would effectively omit to offer male sale staff the opportunity to continue in employment. The purchase of the business was not completed until more than three months later and it was only at that point that male staff were made aware of the respondent's decision to apply this policy. The Employment Appeal Tribunal's decision was that the time ran from the date when the policy was implemented, and not from the date when the decision was made. In this case the claimant alleges that the alleged discriminatory treatment was the failure of the respondent to give the same consideration to him which it gave to his female colleagues. The preferential treatment (as he saw it) was given to his female colleagues on 14^th April 2005; his claim was lodged on 4th July 2005 and therefore was in time.

3. Is the Claimant a disabled person within the meaning of Section 1 of the 1995 Act?

22. A claimant may only bring a claim under the Disability Discrimination Act 1995 (as amended) if he is a disabled person within the meaning of Section 1 of the 1995 Act. A disabled person is defined in the legislation as follows:-

"1. (i) 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 affect on his ability to carry out normal day-to-day activities.

(ii) In this Act "disabled person" means a person who has a disability."

23. Schedule 1 of the 1995 Act provides a definition of "long-term effects" in paragraph 2 as follows:-

"2. (1) the effect of impairment is a long-term effect if –

(a) it has lasted at least 12 months;

(b) a period for which is likely to be at least 12 months; or

(c) it is likely to last for the rest of the life of the person affected……."

24. "Normal day-to-day activities" are defined in paragraph 4 of Schedule 1 where a list is set out of the various functions which may be affected by a physical or mental impairment. For the purposes of this case, the four functions which the claimant considered were affected were:-

(a) mobility;

(b) manual dexterity;

(e) continence;

(d) the ability to lift, carry or otherwise move every day objects.

25. The test for considering whether or not a person is disabled within the meaning of the 1995 Act is set out in the case of Goodwin v The Patent Office [1999] IRLR 4. The test to be applied is an objective, rather than a subjective one. The questions which are to be considered by the tribunal are as follows:-

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

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

(iii) Is the adverse effect substantial?

(iv) Is the effect long-term?

26. In relation to questions (i) and (ii), these can be answered relatively briefly. The claimant in this case suffers from ulcerative colitis; he has also suffered two prolapsed discs, one in his neck and one in his back. He suffers from a loss of sensation in two of the fingers of his left hand and he has ongoing difficulties due to a hernia. Each of these conditions will qualify as a physical impairment within the meaning of the legislation. Also, given the evidence given by the claimant as to the period of time for which each of these conditions has lasted, it is clear that each of them has long-term effects in that each condition lasted, or has lasted, for at least 12 months.
27. To decide whether these conditions or any one of them, has a substantial adverse effect on the claimant's ability to carry out day-to day activities, I will consider each of the "normal day-to-day activities" raised by the claimant in the light of the "Guidance on matters to be taken into account and determining question relating to the definition of disability" ("the Guidance") provided by the Department of Trade and Industry. The term "substantial" is defined in the Guidance only as being "more than minor or trivial".

(a) Mobility

28. The claimant's main complaint in relation to his mobility was that he could not walk as far as he used to be able to walk. In particular, he said that due to a problem with the hernia, he could not walk more than 600-700 yards without suffering pain in the groin. He took medication for this, and said that he would also have to stop and recover before he could go on.
29. The Guidance suggests that it would be reasonable to regard as having a substantial adverse effect, the ability to travel a short journey as a passenger in a vehicle, the inability to walk other than at a slow pace or with unsteady or jerky movements or, for example, difficulty in going up or down steps, stairs or gradients. By contrast it would not be unreasonable to regard as having a substantial adverse effect, difficulty in walking unaided at a distance of about 1.5 kilometres or a mile without discomfort or having to stop. It is suggested that the distance in question would obviously vary according to the age of the person concerned and the type of terrain. In this case the claimant said that he could walk 600-700 metres before he had to stop and recover for a minute or two. He did not say that he could not walk further, simply that he would have to recover.
30. While the distance involved is less than that mentioned in the Guidance and the claimant is in his early fifties and so not elderly, I do not consider that the inability to walk more than 700 yards without a break represents a substantial adverse effect on a person's mobility. He also said that he had difficulty in turning around to reverse a car and had to reply on the car mirrors. It seems to me that this is not unreasonable as car mirrors are intended to assist with reversing amongst other things. It would not, in my view, be reasonable to consider that the claimant was so limited in his turning movements as to be substantially adversely affected in terms of his mobility.

(b) Manual dexterity

31. According to the Guidance, this includes the ability to do things like pick up and manipulate small objects, operate a range of equipment manually or communicate through writing or typing on standard machinery, loss of function in the dominant hand would be expected to have a greater effect than equivalent loss in the non dominant hand. The examples given here were a loss of function in one or both hands such as that a person cannot use the hand or hands, or inability to handle a knife and fork at the same time for example. It would not be reasonable to regard as having a substantial adverse effect, ability to undertake activities requiring delicate hand movements such as threading a small needle, inability to reach typing speed standardised for secretarial work or inability to pick up a single small item such as a pin.
32. In this case the claimant's main complaint in relation to manual dexterity was that he found it difficult to use a hammer or a spanner for any length of time with his left hand. He also said that the loss of sensation in the fingers in his left hand affected his ability to grip when lambing sheep. The claimant said he was left-handed, but wrote with his right hand. However when cross-examined in relation to this matter he agreed that he was able to eat meals and use a knife and fork on his own without any difficulty. He said however that if using a hammer with his left hand, his grip on the hammer loosened because of the lack of sensation in his hand. The issue for me to consider is the severity of the difficulty suffered by the claimant at the date of the alleged discrimination in April 2005. The claimant also said that the lack of grip in his hands affected his ability to catch sheep and lambs when they needed attention. However he did tell the tribunal that his son caught the animals and he then administered the medication. The tribunal notes that the administering of medication to animals, whether by injection or dosing the animals would require a reasonable degree of manual dexterity. Accordingly I find that the claimant is not substantially adversely affected in relation to his manual dexterity.

(c) Continence

33. The claimant suffers from ulcerative colitis and has suffered from this condition from 1993. He indicated to the tribunal that when he was suffering from a bad bout of colitis he had to stay on the toilet for hours at a time and he was simply not able to work when he did this. However he did not take time off work and simply, to use his term, "worked round it". This is a condition with is clearly quite distressing for the claimant but he took medication for the condition and coped with it extremely well. The claimant agreed that he was able to go to the toilet whenever necessary at work and he did not specify how frequent the incidents of colitis were. Accordingly I am unable to make a finding that this condition had a substantial adverse affect on the claimant's ability to carry out day-to-day activities.

(d) Ability to lift, carry and otherwise move every day objects

34. The Guidance specifies that every day objects might include items such as books, a kettle of water, bags of shopping, a briefcase, an overnight bag, a chair or other piece of light furniture. It would not be reasonable to regard as having a substantial adverse effect, the ability to carry heavy luggage without assistance or inability to move heavy objects without mechanical aid.
35. The claimant indicated that before the injury to his back he had been able to carry a 50 kilo bag of cement and could no longer do so. However he also indicated that he had to be careful what he carried and how he lifted it. He indicated that he had not carried suitcases when going on holiday, but could carry a smaller bag. Indeed, he had carried a bag of files into the tribunal on the day of the hearing. Mindful of the Guidance, I note that it would not be reasonable to regard as having a substantial adverse effect the claimant's inability to carry a 50 kilo bag of cement, which could be compared to heavy luggage. However the claimant did say that he was able to carry his files to the tribunal and hand luggage onto the aeroplane when going on holiday without any particular difficulty. So I find that the claimant's condition did not have a substantial adverse effect on his ability to lift, move and carry everyday objects.

Conclusion

36. There is no doubt that the claimant was used to being an active man and a physically fit man who did a lot of work around his farm. It is also notable that he was used to doing a lot of physical work even when he started to have difficulties with his back and colitis in 1993. His attitude was that he had to "get on with it" and that he didn't complain. This is a refreshing and laudable attitude on the claimant's part. While the claimant's view of his condition is not the determining factor in deciding whether he is disabled, it indicates that the claimant did not allow any medical difficulties he had to impact on his ability to carry out day-to-day activities. He went to work as normal and really did not have any lengthy periods of sickness absence, or raise the question of whether or not he was disabled until after his accident in 2002 when he suffered the injury to his left elbow. Accordingly and having considered each of the headings under which the claimant has raised his claim, I find that none of the physical impairments from which the claimant suffered had a substantial and adverse long-term effect on his ability to carry out day-to-day activities. It follows that the claimant does not suffer from a disability within the meaning of Section 1 of the 1995 Act and that part of his claim will be struck out. The sex discrimination claim will proceed to a full hearing in due course.

Chairman:

Date and place of hearing: 1 June 2007, Belfast

Date recorded in the register and issued to the parties: