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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Dunseath v Royal Mail Group [2007] NIIT 2294_04 (26 January 2007)
URL: http://www.bailii.org/nie/cases/NIIT/2007/2294_04.html
Cite as: [2007] NIIT 2294_4, [2007] NIIT 2294_04
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THE INDUSTRIAL TRIBUNALS
CASE REFS: 2294/04
2575/04
CLAIMANT: Brian Dunseath
RESPONDENTS: 1. Royal Mail Group
2. Colin Fisher
3. Royal Mail NRLC
4. The Manager, Accident Management Unit
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant lodged his claim within the required period of three months and that consequently the tribunal has jurisdiction to deal with this case.
The tribunal directs that only the first-named respondent is properly included as a respondent; proceedings against the second, third and fourth-named respondents are therefore struck out as they are not appropriately included because they are either employees of the first-named respondent or, in the case of the fourth-named respondent, an entity within the first-named respondent. Any reference to the respondent in this decision therefore relates only to the first-named respondent.
The tribunal has concluded however that the claimant is not a disabled person within the meaning of the Disability Discrimination Act 1995 and his claim is dismissed.
Constitution of Tribunal:
Chairman (sitting alone): Mr T Browne
Appearances:
The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by Ms E Kennedy, of Equality Commission for Northern Ireland.
The respondents were represented by Mr D Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.
ISSUES
1. The tribunal was required to establish if it had jurisdiction to deal with this claim with regard to the time limits for presentation of the claim; the respondent did not contest at the tribunal hearing the claimant's assertion that he had faxed his application to the Office of Industrial Tribunals on the day before the time limit otherwise would have expired. The available fax correspondence clearly confirms that assertion, and it was common case that the Tribunals Office staff at the material time were involved in industrial action. It seems therefore that whilst the claim was received within time, its receipt was not recorded or processed due to the backlog of work in consequence of the industrial action. I therefore am satisfied that the claim was made within time and that the tribunal has jurisdiction to determine this case.
2. The substantive issue before the tribunal is whether or not the claimant has established that he is or was at the relevant time a disabled person for the purposes of the Disability Discrimination Act 1995 (‘the 1995 Act').
3. Section 1(2) defines a disabled person as one who has a disability, which Section 1(1) defines as being:-
“...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”.
The tribunal also has had regard to the Guidance issued by the Secretary of State under Section 3 of the 1995 Act.
THE FACTS
4. The claimant worked for the respondent from April 1996 until his retirement on health grounds in February 2004 at the age of 58. The nature of his work in the Royal Mail was sorting mail in the returned letter centre in Belfast. This work involved a significant amount of lifting, and repetitive opening of envelopes which had not been properly opened by machine.
5. In October 2002, the claimant sought the advice of a general practitioner in his local surgery, Doctor Gallagher, regarding pains in his right shoulder and elbow. There is a difference of opinion between Doctor Gallagher and Doctor Irwin, another general practitioner in the same practice who examined the claimant on his next visit to the surgery in July 2003, as to the diagnosis of his condition. Doctor Irwin, who gave evidence to the tribunal, stated that in his opinion the claimant was suffering from a fibromyalgia type syndrome, resulting in multiple muscular-skeletal pains. Whichever is correct, it was not in dispute between the parties that the claimant suffered a significant amount of pain and discomfort as a result of prolonged working in this type of task. There was also evidence that the physical symptoms abated, for example, at weekends, when the claimant was not at work.
6. Associated with the physical symptoms of the pains in July 2003 were stress and low mood, which the tribunal found to be readily associated with personal difficulties in the claimant's life. There seemed to the tribunal in reaching that conclusion to be ample evidence that the claimant was and remains vulnerable to adverse mental reaction to pressures in his life. In July 2003, being the first recorded report by him of low mood, he had also to cope with other, ongoing situations beyond his control but having a direct and detrimental effect upon his life. These included previously being made redundant, which had a marked and continued effect upon his self-esteem and his financial situation; and the declining health of his wife and his elderly parents. The tribunal felt that the latest pressure, namely the pain and discomfort in connection with his work, with the frustration it caused, understandably added to his mental burden. That frustration also seemed to the tribunal to include at its root the claimant's view that the respondent did not react appropriately to his situation.
7. Between his visits in October 2002 and July 2003 to his own doctor, the claimant received the assistance of the respondent's Occupational Health (OH) advisors, who in March 2003 produced a list of recommendations for himself and the respondent, to address the difficulties he experienced at work. The claimant identifies what he says is a number of failures of the respondent to comply with these modest recommendations. Any such alleged failure is not a matter for the tribunal at this stage, since the issue is to decide whether or not the claimant is a disabled person.
8. In that context, however, the tribunal has to note one of the recommendations from the OH that the claimant cease his overtime working hours for two months, which he did. Significantly however, he started to do overtime again within the two months, citing financial necessity. The claimant also claimed at the tribunal hearing that his contract required him to work overtime, but there was no evidence produced by him to confirm this. The tribunal is satisfied that the sole motivation for returning to overtime working, albeit in slightly different circumstances from his previous overtime work, was financial. That purely financial motivation and voluntary increase in his working hours in the view of the tribunal run contrary to his plain assertion in evidence that his core work is the root cause of his physical and mental difficulties. The tribunal found the claimant's explanation in that significant aspect to run contrary to the notion that he at this time was incapacitated to the degree alleged by him.
9. Another recommendation of the March 2003 OH report was that the claimant was “to consider attending GP, if symptoms do not improve”. The claimant did not attend Doctor Irwin again until July 2003, at which time Doctor Irwin, in common with the OH assessment in March 2003, recorded no complaint from the claimant of any physical difficulty outside the workplace such as those which now form a major part of his claim. Whilst these examinations were focused upon the claimant's problems at work, the tribunal finds that it is much more likely that the claimant did not mention any such difficulty, and is of the view that there is no apparent reason why he would not have done so if they had existed.
10. The tribunal also notes from the OH report of May 2003 that the claimant's physical condition arising from his work caused no sickness absence since the first report in March 2003.
11. Subsequent to another visit in August 2003 to Doctor Irwin, the claimant was referred to the Community Psychiatric Nurse (CPN). In order to address what Doctor Irwin at that time found to be the claimant's low mood, in August 2003 he prescribed the anti-depressant drug Cipralex at 10 mg dosage. That dosage was increased to the significantly greater dose of 20 mg, but by June 2005 the claimant was able to wean himself off the Cipralex.
12. It was particularly noted by the tribunal that at the initial assessment in October 2003 with Mrs Hall, the CPN, the claimant and she went through a list of aspects of his life, in relation to which the claimant indicated on a scale rising from 1 to 5 the degree to which each aspect was assessed by him to be affected by his physical and mental condition. The claimant in this case asserts that he suffers from physical and mental conditions which at the material time, and still, place him within the definition of disability at Paragraph 3. above.
13. The tribunal notes that in his self-assessment, the claimant, in relation to his physical health, placed his condition at 1, being “very mild, almost within normal range”. The effects upon his concentration and memory were assessed by him to be “2”, namely “mild”. The greatest ratings by the claimant were “2 to 3” for agitation, 3 being “moderate”, and “3 to 2” for depressed mood. Under the heading “risk to self”, no figure is inserted, but written in the space by Mrs Hall is “suicidal ideation – no intent”.
14. The tribunal noted further with regard to the mental affliction of the claimant his assertions in his oral evidence as to his poor memory and concentration during this period. The tribunal is unable to reconcile his evidence in that regard with the clear, objective evidence as to his production in a matter of hours, to a tight deadline, of his detailed industrial tribunal claim form, as well as a detailed document entitled “Memories of my career with Royal Mail”, compiled by him at a time when he claims he was so adversely mentally impaired as to be disabled.
15. The tribunal heard evidence from Doctor Glasgow, an experienced doctor specialising in occupational medicine. His evidence, adduced by the respondent, as to his assessments of the claimant in November 2003 and January 2004, included what the tribunal regarded as clear and compelling observation of the claimant. He found the claimant, in his physical appearance and demeanour, to be in a frame of mind inconsistent with depression.
16. Similarly, whilst Doctor Glasgow accepted the claimant's description of his physical symptoms in the form of the types of pain he experienced, he expressed confidence in the claimant's ability to recover from them in another form of work. He also expressed surprise at the claimant's assertion to the tribunal as to the difficulties he faces in performing everyday tasks such as lifting a kettle or opening a jar. The claimant's assertions of such inability to perform these or any other everyday tasks run contrary to Doctor Glasgow's close professional observations of the claimant at the assessment stage, and were not recorded by Doctor Glasgow as having been asserted to him by the claimant.
17. The tribunal formed a very positive view of Doctor Glasgow's evidence; his relevant experience was brought into play in his assessment of the claimant, and his views formed at the time of assessment were found by the tribunal to be cogent and demonstrably based upon a tried and tested, carefully compiled checklist of relevant indicators.
18. Whilst the claimant clearly has made commendable and significant efforts to get himself and his family through very testing times, the disparity between the records and observations of the other witnesses and his subsequent claim to be disabled cannot be reconciled.
19. The tribunal found the claimant to be an evasive and unconvincing witness. He could provide no cogent or credible answers to the disparity between his assertions to the tribunal as to the physical difficulties encountered by him in his day-to-day life, both during his employment with the respondent and subsequent to his retirement, and those communicated by him to his own medical care professionals or those connected to his workplace at the time of his employment.
20. The tribunal's adverse view of the claimant's reliability also included his attempts to provide answers regarding his poor memory and concentration. The objective evidence of the existence, detail and speed of preparation of the claimant's originating claim for the tribunal proceedings and his memories of working for the Royal Mail gravely undermined the claimant's assertions in that regard, and his evidence in the view of the tribunal was not credible.
21. Whilst anxiety and depression are recognised as two of the most common forms of mental illness, and therefore would fall within the requirements of Schedule 1 to the 1995 Act, there was no evidence before the tribunal which would put this during its most acute phase as any higher than moderate to mild, and that assessment came from the claimant himself. There was no submission by or evidence adduced on behalf of the claimant that he had underestimated the effects of his own mental condition at that or any other time.
22. The Guidance clearly indicates that impairments taken together could result in a substantial adverse effect. The claimant's own General Practitioner, Doctor Irwin, in effect, supervised the claimant's treatment during the entirety of this period of illness. It is worthy of note in that regard that, replying on 24 August 2005 to correspondence from the Equality Commission in preparation of this case, he felt able to couch his diagnosis only in the terms that the claimant's illness “from October 2002 [until August 2005] continues to have an adverse effect on his physical and mental ability to carry out normal day-to-day activities.” Doctor Irwin does not therefore go as far as saying that the effect of his physical or mental conditions, individually or cumulatively, was or is substantial.
LAW AND CONCLUSIONS
23. As referred to above, the law governing disability discrimination is contained in the Disability Discrimination Act 1995. In the terms of Section 1 (1) of the 1995 Act, a person has a disability “if he has a physical or mental impairment which has a substantial, long-term adverse effect on his ability to carry out normal day-to-day activities”.
24. Applying the tests in Goodwin v Patent Office [1999] IRLR4, I am satisfied from the evidence that the claimant suffered adverse physical and mental impairments and that these lasted in excess of twelve months, thereby rendering them long- term within the requirements the 1995 Act.
25. In assessing the degree of those adverse effects, I have had particular regard to the evidence of the claimant and by way of cross-reference with the other evidence in this case I have formed the view that the clamant was not a truthful witness, and that his mental and physical symptoms were exaggerated and in some instances fabricated by him at the hearing of this case. That impression is reinforced by the disparity between his evidence to the tribunal and the whole tenor of the records of the other witnesses, including his own contemporaneous assessment of his physical and mental conditions. Of particular note is his own doctor's assessment that, even taken together, the claimant's conditions over the period October 2002 to August 2005 amounted to no more than an adverse effect.
26. The claimant has in my opinion failed by a significant margin to establish on the balance of probabilities that his adverse physical and mental impairments were substantial. From this I conclude that he did not suffer from a disability for the purposes of the 1995 Act and therefore is not a disabled person for the purposes of the 1995 Act.
27. In view of the above findings, the tribunal has no jurisdiction to deal with the claimant's claim of disability discrimination and it is dismissed.
Chairman:
Date and place of hearing: 12 – 15 September 2006, Belfast.
Date decision recorded in register and issued to parties: