Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2007/128_05.html
Cite as: [2007] NIIT 128_5, [2007] NIIT 128_05

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THE INDUSTRIAL TRIBUNALS

CASE REF: 128/05

CLAIMANT: Reeve John Birkenhead

RESPONDENT: Homefirst Community Trust

DECISION ON PRE HEARING REVIEW

The decision of the tribunal is that the claimant does not have a disability within the meaning of the Disability Discrimination Act 1995.

Constitution of Tribunal:

Chairman (sitting alone): Ms J Knight

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr Harkin, Solicitor, of the Directorate of Legal Services.

1. The issue for the tribunal was whether the claimant has a disability within the meaning of the Disability Discrimination Act 1995.

2. The tribunal considered the originating claim of the claimant, the respondent’s response and the oral and documentary evidence of the claimant and the submissions of the parties.

3. The tribunal found the following facts to be proved on a balance of probabilities:

3.1 The claimant lodged an originating claim with the Office of Industrial Tribunals and the Fair Employment Tribunal on 5 January 2005 in which he complained that his employment had been terminated “due to health matters” by the respondent on 10 November 2004 and that this amounted to unlawful discrimination contrary to the provisions of the Disability Discrimination Act 1995 and that he had been unfairly dismissed. The claimant did not specify in his originating claim the nature of the disability relied upon by him. In its response the respondent refutes all allegations of unlawful discrimination on grounds of disability and puts the claimant ”on his proof” that he is a person with a disability within the meaning of the Act.

3.2 The claimant indicated at the Case Management Discussion on 29 November 2006 that he relied upon the fact that he had previously been registered as a disabled person under the Disabled Persons (Employment) Acts Northern Ireland 1965 as proof that he was a person with a disability within the meaning of the Disability Discrimination Act 1995. The chairman at the hearing of the Case Management Discussion advised the claimant that he might like to seek advice as to whether he needed to produce any other evidence with regard to his claim that he had a disability.

3.3 The claimant told the tribunal at the pre-hearing review that he has been registered as a disabled person and was issued with a “blue card” after his discharge on grounds of ill-health from HM Forces in November 1979. The claimant produced to the tribunal a blue card which had been issued to him on 22 October 1996 and which expired on 31 October 1997. There was no documentary evidence before the tribunal to show that he was registered as disabled prior to 22 October 1996. He said that his hearing was damaged as the result of being present during an explosion in the late 70s and that he was diagnosed by military doctors as suffering from post traumatic stress disorder. He was referred by these doctors to Dr Hanley, a consultant psychologist and has attended group counselling meetings with Dr Hanley. The claimant is in receipt of an allowance from the Veterans Agency, an Executive Agency of the Ministry of Defence.

3.4 Since his discharge from the Royal Army Medical Corps, the claimant has had a number of jobs. He worked as a field worker with the NIHE for two years. From 1984 until 1996, he was an ambulance driver in the Somme Hospital, transporting patients to and from appointments. He did not find the driving duties difficult or stressful. He became a day care worker for the respondent in 1997 and subsequently moved to the Iniscoole Day Centre where he was employed as a woodwork instructor.

3.5 On his job application form dated 29 August 1998 for employment with the respondent, the claimant answered “no” to the question “Are you a person with a disability?” The claimant explained that this was because he did not consider that his disability was relevant to the duties of the position for which he was applying. On a previous application form he answered “yes” to the question “Are you registered disabled?”

3.6 The claimant was absent on sick leave from his employment with the respondent from 1 December 2003 until 18 July 2004 and from 12 August 2004 until his dismissal on 10 November 2004. The reason for this absence was stated to be “nervous debility” on sick lines provided by his GP. A referral by his line manager to the respondent’s occupational health department on 15 March 2004 stated that: “Mr Birkenhead is suffering from nervous debility and is currently supported by his GP, Dr McClean, who has prescribed anti depressants. He has been seeing a psychologist, Dr Handley(sic). Mr Birkenhead would like to return to work, I would like advice re; situation and extra support for Mr Birkenhead, possibly via staff care.”

3.7 His absence from work during these periods was not connected with his deafness. The claimant told the tribunal that the first period of absence was related to his participation on a trainee social work course and the second was triggered by an incident in which a client had fallen, fracturing a hip, for which the claimant felt responsible. He said that his absence was due to stress which was work-related.

3.8 The claimant told the tribunal at the pre-hearing review that he is deaf in the right ear, has a degenerative hearing problem in his left ear and suffers from tinnitus. He does not wear a hearing aid as he said this exaggerates the effects of his tinnitus, causing him distress and annoyance. He described difficulty in having a one to one conversation if there is any background noise and in communicating with more than one person at a time. He states that if he is going out, he needs to have someone with him as he cannot hear traffic coming from the right.

3.9 He claimed that he suffers from sleep deprivation, depression, low self esteem and lack of confidence. He has had panic attacks and a series of flashbacks to some of the traumatic events that he witnessed while employed in the armed forces. The claimant described himself as having suicidal tendencies and not being able to function.

3.10 The claimant did not provide any evidence to the tribunal. The claimant told the tribunal that he had tried to contact Dr Hanley the week preceding the pre-hearing review but was informed that he was out of the country not to return until the week following the hearing. On learning this, the claimant contacted his GP but told the tribunal that he could not get an appointment until 18 January 2007. At first the claimant told the tribunal that he had not been able to make arrangements to obtain medical evidence any earlier because he himself had been out of the country. When the chairman enquired as to the dates of his absence it transpired that the claimant had been away from 4 to 11 January 2007 and “before that it was Christmas.” He then told the tribunal that his father-in-law had just died and that his priority had been to support his wife. He then advised that the death had occurred in November 2006 prior to the Case Management Discussion and confirmed that this had not been mentioned to the chairman at the time. The tribunal did not find the claimant’s reasons as to why he had not obtained medical evidence credible.

3.11 The claimant did produce a letter dated 28 September 2004 from the Veterans’ Agency which stated that at a review it had been decided to increase the amount of money payable to the claimant. The letter stated:-

“We have looked again at the following conditions:-

POST TRAUMATIC STRESS DISORDER

SENSORINEURAL DEAFNESS RIGHT EAR

We have taken the following conditions into account when we assessed your disablement:-

TINNITUS

We have increased our assessment of your disablement from your accepted conditions form 50% to 60%.

Our doctors have made an interim assessment of your pensioned disablement. By interim our doctors do not think that your condition is likely to change, but that it might improve or get worse at some time in the future. Because we cannot say when this might happen, your assessment will stay the same until there is a reason to look at it again. If at some time you think you condition has changed you should tell us about it. We call this a review. We will normally require you to provide evidence to show there are grounds for us to review your assessment if you want us to look at it again.”

3.12 The claimant told the tribunal that he had attended for medical examination at Cleaver House for the purposes of the review of his benefit entitlement. There was no other information before the tribunal about the conditions of entitlement to this benefit; neither was there any medical opinion attached to the letter. The claimant argued that he did have a disability within the meaning of the Disability Discrimination Act 1995 which continues up to the present and that in any event he was to be treated as having had a disability in the past by reason of having been registered disabled and having had a ‘blue card’.

3.13 It was submitted on behalf of the respondent that the claimant had not adduced medical evidence of the requisite standard to prove that he suffered from a disability and that the claimant had not proved on a balance of probabilities that these conditions had a substantial and long term adverse effect on his ability to carry out normal day-to-day activities.

3.14 It was submitted that the ‘blue card’ was not relevant to these proceedings as the claimant ceased to be deemed a disabled person within the meaning of the Act as from 1 December 1999. It was accepted on behalf of the respondent that post traumatic stress disorder is a condition specified in the World Health Organization Classification of Diseases .

The Law

4. The meaning of "disability" and "disabled person" is set out in Section 1(1) of the Disability Discrimination Act 1995 (hereinafter called the DDA) which provides that:-

“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.

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

4.1 Section 2 of the DDA provides in relation to past disabilities:-

(1) The provisions of this Part and Parts II and III apply in relation to a person who has had a disability as they apply in relation to a person who has that disability.

(4) In any proceedings under Part II or Part III of this Act, the question whether a person had a disability at a particular time ("the relevant time") shall be determined, for the purposes of this section, as if the provisions of, or made under, this Act in force when the act complained of was done had been in force at the relevant time.

(5) The relevant time may be a time before the passing of this Act.

4.2 Section 3 of the DDA enables the Secretary of State to issue guidance about the matters to be taken into account in determining a number of issues likely to arise in disability discrimination cases, including whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities; or whether such an impairment has a long-term effect.

4.3 Section 3(3) of the DDA provides that a tribunal or court determining, for any purpose of this Act, whether an impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities, shall take into account any guidance which appears to it to be relevant.

4.4 Paragraph 4(1) of Schedule 1 to the DDA provides that 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:-

(a) mobility;

manual dexterity;

(d) continence;

(e) ability to lift, carry or otherwise move everyday objects;

(f) speech, hearing or eyesight;

(g) memory or ability to concentrate, learn or understand; or

(h) perception of the risk of physical danger.

4.5 Persons deemed to be disabled

Paragraph 7(1) Sub-paragraph (2) of Schedule 1 sets out the circumstances in relation to persons deemed to be disabled and applies to: “any person whose name is, both on 12 January 1995 and on the date when this paragraph comes into force, in the register of disabled persons maintained under Section 6 of the Disabled Persons (Employment) Act 1944. (The equivalent statutory registration provisions in Northern Ireland are found in the Disabled Persons (Employment) Act Northern Ireland 1965.)

(2) That person is to be deemed:-

(a) during the initial period, to have a disability, and hence to be a disabled person; and

(b) afterwards, to have had a disability and hence to have been a disabled person during that period.

(3) A certificate of registration shall be conclusive evidence, in relation to the person with respect to whom it was issued, of the matters certified.

(4) Unless the contrary is shown, any document purporting to be a certificate of registration shall be taken to be such a certificate and to have been validly issued.

(7) In this paragraph -

"certificate of registration" means a certificate issued under regulations made under section 6 of the Act of 1944; and

"initial period" means the period of three years beginning with the date on which this paragraph comes into force.

4.6 The tribunal took into consideration the decisions in the cases of Goodwin v The Patent Office [1999] IRLR4; Morgan v Staffordshire University [2002] IRLR 190; Abadeh v British Telecom [2001] IRLR23; Ekpe v Commissioner of Police of the Metropolis [2001] IRLR605; and Rugamer v Sony Music Entertainment UK Ltd McNicol v Balfour Beatty Rail Maintenance Ltd [2001] IRLR644.

5. Conclusions

5.1 In deciding whether a person has a disability within the meaning of the Act, the tribunal must address the four questions set out in the case of Goodwin v The Patent Office 1999 IRLR 4, namely:-

(a) Does the claimant have an impairment which is either mental of physical?

(b) 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 effect?

(d) Is the adverse effect long term?

5.2 The onus is on the claimant to prove that he has or had a disability within the meaning of the 1995 Act at the time of the alleged discriminatory act which gave rise to his complaint (the relevant time).

5.3 The tribunal determined that the claimant’s conditions are capable of falling within the definition of an impairment as set out in Paragraph 12 of the Guidance issued by the Secretary of State. Paragraph 12 states that physical or mental impairment includes sensory impairments, such as those affecting sight and hearing. Paragraph 14 provides that “A clinically well recognised illness is a mental illness which is recognised by a respected body of medical opinion. It is very likely that this would include those specifically mentioned in publications such as the World Health Organisation’s International Classification of Diseases.”

5.4 The Employment Appeal Tribunal in the Morgan case held that there are four possible routes in establishing a mental impairment:-

(a) proof of a mental illness specifically mentioned as such in the WHOICD;

(b) proof of a mental illness specifically mentioned as such in a publication “such as” that classification, presumably referring to some other classification of a very wide professional acceptance;

(d) proof by substantial and specific medical evidence of a mental impairment which neither results from nor consists of a mental illness.

5.5 The tribunal was satisfied on a balance of probabilities that the letter of 29September 2004 did establish that the claimant had a hearing impairment and a mental impairment, namely post traumatic stress disorder, as at that date. The tribunal took into account that the letter confirmed that the claimant’s disability for the purposes of disablement pension had been assessed “by doctors” and as a consequence the claimant was entitled to receive an increased amount of disablement pension because of sensor neural deafness and tinnitus and post traumatic stress disorder. Although the tribunal was of the view that the letter did not in itself constitute medical evidence, it did provide relevant evidence as to the existence of impairments which could not be disregarded by the tribunal. The tribunal considered that the Abadeh case in which the Employment Appeal Tribunal held that an employment tribunal erred in law in failing to take account of the decision of a Medical Appeal Tribunal that the applicant had an 18% disablement, notwithstanding that the assessment was made to determine whether the claimant was entitled to receive benefit. The Medical Appeal Tribunal assessment was clearly relevant evidence for the employment tribunal to take into account as part of the evidence before them on the issue of disability, although the weight they attached to it would be a matter for them. The employment tribunal was not entitled to regard it as wholly irrelevant because it was not directed to the questions posed under the Disability Discrimination Act.

5.6 However the tribunal considered that although the letter was relevant evidence insofar as it enabled the tribunal to find that the claimant did have impairments, it could not be relied upon by itself to prove the other requisite “ingredients” of a disability within the meaning of the Act. The respondent disputed that the claimant had such a disability. The difficulty for the tribunal was that the claimant had decided not to provide relevant medical evidence in order to support his contentions that these impairments had substantial and long term adverse affects on his ability to carry out normal day to day activities. The tribunal found that the claimant’s own evidence as to how his impairments adversely affected his ability to carry out day-to-day activities was largely vague and unsatisfactory. The letter of 29 September 2004 did not specify the basis upon which ‘the doctors’ had reached their conclusion that the claimant was 60% disabled as a result of these conditions. Furthermore the tribunal had no evidence as to the definition of “disability” under the disablement benefit scheme and how this related to the definition of disability under the DDA. The chairman considered that the questions such as what constituted “day-to-day activities” or whether an impairment was or was not “substantial” were matters to be decided by the tribunal. However the chairman considered that some medical evidence was required in this case to corroborate the claimant’s own evidence in relation to how the claimant’s impairments affected him and his ability to carry out day to day activities. The tribunal therefore considered that the claimant did not discharge the burden upon him and that he had not shown on a balance of probabilities that he had a disability within the meaning of the DDA at the relevant time.

5.7 The tribunal further concluded that the claimant had not proven that he had a past disability at the relevant time.

5.8 Paragraph 9 of the Guidance issued by the Secretary of State clarifies that “anyone who was registered as a disabled person under the Disabled Persons (Employment Act) on 1944 and whose name appeared on the register on 12 January 1995 and 2 December 1996 (the date the employment provisions came into force) is to be treated as having a disability for the purposes of the Disability Discrimination Act 1995 for a period of three years starting on 2December 1996. This applies regardless of whether the person otherwise meets the definition of “disabled person” during that period. Those who are treated as disabled for the three year period are also to be treated after this period has ended as having had a disability in the past.”

5.9 The claimant had not provided any documentary evidence to prove that his name was on the register of disabled persons as at 12 January 1995, as well as at 2 December 1996, and therefore he did not satisfy the requirements to show that he was a person with a past disability.

5.10 The tribunal therefore dismisses the claimant’s complaint of discrimination on grounds contrary to the provisions of the DDA and directs that his complaint of unfair dismissal should be listed for hearing in due course.

Chairman:

Date and place of hearing: 17 January 2007, Belfast

Date decision registered and issued to the parties: