Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 229/07

CLAIMANT: Denis Shirlow

RESPONDENT: Translink

DECISION ON A PRE-HEARING REVIEW

It is the decision of the tribunal that the claimant has a disability within the meaning of the Disability Discrimination Act 1995.

Constitution of Tribunal:

Chairman (sitting alone): Ms Crooke

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Elliott Duffy Garrett, Solicitors.

SOURCES OF EVIDENCE

1. The tribunal heard evidence from the claimant. Mr Ferrity chose to call no evidence on behalf of the respondent.

THE LEGAL ISSUE BEFORE THE TRIBUNAL AND THE RELEVANT LAW

2. The issue for determination was "whether the claimant has a disability within the meaning of the Disability Discrimination Act 1995".

The relevant law is found in Section 1 (1) of the Disability Discrimination Act 1995 which says as follows.

(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. The tribunal also considered Schedule 1, paragraph 4 (1) of the Act which states

4—(1) "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;

(b) manual dexterity;

(c) physical co-ordination;

(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.

FINDINGS OF FACT

3. The claimant applied for the job of signalman at Castlerock with the respondent, on or about 14 August 2006. He had previously been employed by the respondent as a signal person at Castlerock and later in Coleraine.
4. The claimant underwent a criteria based interview on 6 November 2006. He was not successful in his application and it was noted in assessing him that he had a pronounced stutter, slurred words and was difficult to understand on occasions.
5. The claimant considered that this indicated that the respondent considered that he had a disability and that he was not given the opportunity of going back to being a signalman at Castlerock because of a disability.

CONCLUSIONS

6. The tribunal considered the question of whether or not the claimant's difficulties with his speech constituted a disability for the purposes of the Disability Discrimination Act 1995 and applied the following tests:-

(a) Was there a physical or mental impairment?

Mr Ferrity under cross examination put the case to the claimant that this difficulty only came out in unusual situations such as a job interview or appearing before the Industrial Tribunal. The claimant stated that it was something he dealt with and explained that speech difficulty had the effect of sometimes stopping him doing jobs that he was capable of doing and he had difficulty with shopping and getting meals. The claimant admitted that he would ask somebody else to do things for him and highlighted that he had difficulty with jobs where he had to speak a lot. The tribunal has taken account of the evidence of the claimant that he employs avoidance strategies and finds that the claimant does have a speech impairment.

(b) Was the effect of the impairment long-term?

Mr Ferrity accepted that the claimant had this difficulty for a long time. The tribunal accepts the claimant's evidence that he has had this speech difficulty since birth and that some attempt was made to deal with it without success by referring him to a speech therapist at the age of 10. Clearly the claimant has no difficulty in satisfying the element of the "long term" nature of the impairment.

(c) Was this substantial?

Mr Ferrity argued that in his answers to cross examination, the claimant demonstrated only occasional lapses from normal fluency. However the tribunal accepts that this claimant is a person who takes longer than someone who does not have an impairment to say things and thus satisfies the test of the effect of his impairment being substantial and adverse. Again the tribunal notes that the claimant had difficulty with jobs where he had to speak a lot and would employ avoidance strategies by asking other people to do things for him.

(d) Did it affect his normal day-to-day activities?

In paragraph 4 of Schedule 1 of the Act speech is specifically listed as the impairment taken to affect the ability of the person concerned to carry out normal day-to-day activities. Plainly, speech is the most normal of day-to-day activities and the claimant indicated that he had specific difficulties when shopping and getting a meal. He has employed avoidance strategies and has particular difficulties with jobs where he has to speak a lot. The tribunal finds that the claimant has

physical impairment which has a substantial and long term adverse effect on his ability to carry out his normal day-to-day activities.

Chairman:

Date and place of hearing: 14 September 2007, Belfast

Date decision recorded in register and issued to parties: