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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Black v Ballyrobert Ltd [2007] NIIT 3972_03 (5 February 2007
URL: http://www.bailii.org/nie/cases/NIIT/2007/3972_03.html
Cite as: [2007] NIIT 3972_3, [2007] NIIT 3972_03
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THE INDUSTRIAL TRIBUNALS
CASE REF: 3972/03
CLAIMANT: W Ivan Black
RESPONDENT: Ballyrobert Limited
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that there was a disability within the meaning of the Disability Discrimination Act 1995 as amended.
Constitution of Tribunal:
Chairman (sitting alone): Mr S A Crothers
Appearances:
The claimant was represented by Mr J Dunlop, Barrister-at-Law, instructed by King & Gowdy, Solicitors.
The respondent was represented by Mr Ridgeway, of Employment Law Advisory Service.
1. The issue before the tribunal was whether the claimant had a disability within the meaning of the Disability Discrimination Act 1995 as amended (‘the Act').
2. The tribunal heard evidence from Mrs Myrtle Black, the claimant's wife, and received a bundle of agreed documentation. The claimant, was unable to give evidence. The claimant's counsel clarified at the outset of the hearing that the case involved mental impairment only. The respondent's representative also confirmed that the medical report dated 9 December 2004 from the claimant's General Practitioner, Dr EJ Lees, was agreed. No oral medical evidence was given. The tribunal also had access to the relevant legislation together with the Code of Practice and the Guidance on matters to be taken into account in determining questions relating to the definition of disability. The claimant's counsel also confirmed that the relevant period to be taken into account by the tribunal as to the alleged act of disability discrimination and therefore the definition issue was from September 2002 until 6 May 2003. (‘the relevant period').
3. Having analysed the evidence before it in so far as same was relevant to the issue set out above, the tribunal came to the following findings of fact:
(1) The tribunal accepts the evidence from Mrs Black that during the relevant period, the claimant was ‘stressed out' and could not concentrate. He also shook at times and could not hold a proper conversation. He stammered at times and did not want to communicate. He also ‘sat blank' and did not answer Mrs Black and seemed to be ‘in a world of his own'. She described him as sitting as if he were ‘in a trance'. His also had problems sleeping and seemed to have changed completely. He did not want to go outdoors and had difficulty in shopping and meeting crowds when he did so. He also had difficulty in communicating with members of his own family and with people in general. He could no longer do mental arithmetic and left financial and banking matters for his wife to handle. Moreover, he did not seem to be able to handle information. He only glanced at the newspaper, read the headlines and left it down. He had no interest in anything and this included the monthly golfing magazine. It was like 'living with a stranger'. He also lost a stone in weight during the relevant period. It was common case that the claimant was involved in a disciplinary process with the respondent from his suspension on 4 September 2002 until the cessation of his employment in May 2003. The tribunal accepts Mrs Black's evidence that he intended to return to work and attend a disciplinary hearing but could not cope with the stress of going through such a process.
(2) The medical report from Dr Lees shows that the claimant first attended him on the day of his suspension from work on 4 September 2002 when he presented with signs and symptoms of a stress reaction. He was prescribed medication. The tribunal had regard to all aspects of the medical report including the fact that when Dr Buckley reviewed him in January 2003 after two family bereavements, one of which had set back his progress, “his appetite was still poor but his sleep had improved a little in that he stayed asleep once he got to sleep”. The report goes on to state that “Dr Buckley at that time expressed a hope that he might be ready for work in about two month's time. She records that he coped reasonably well with the daily routine at home but was less consistent in his response to any stress or change in pattern. On 18 February she encouraged him to make plans to return to work in the near future but to remain on medication. She certified him unfit for a further three weeks and at that time she had prepared a report for his employers which he read and approved”. The claimant was reviewed on 1 April and described himself as ‘not too bad'. He attended again on 23 May after having resigned from his employment stating that he was unable to continue. The remainder of the report deals with the referral to a support psychotherapist in August and with the episode of a broken wrist in April 2004. However, at the date of the report, ie 9 December 2004, Dr Lees records that ‘Mr Black has remained on certification for anxiety/depression, has improved considerably but with the stress of this work dispute hanging over him it has not been possible for him to make a full recovery. I feel that this will only be possible once this matter has been fully resolved.' Dr Lees then opines that the claimant has suffered from a recognised mental impairment and states that he remains on medication. The tribunal was also shown a Disability Living Allowance application form signed by the claimant on 16 December 2005 in which he stated ‘I have suffered with work-related stress since September 2002. I have suffered with high blood pressure for quite some time. I had a heart attack at home on 27.9.2005. I have blocked arteries in my neck, right leg and left arm'.
4. The law in relation to the issue before the tribunal is adequately set out in the written submissions by both parties appended to this decision. The tribunal also took into account the case law referred to by both parties, the relevant legislative provisions, the Code and Guidance, and the section in Harvey on Industrial Relations and Employment Law, Division L at 1316 et seq. The tribunal was also mindful of the need to avoid over-reliance on a medical opinion and, in particular, the duty placed upon it to assess what normal day-to-day activity is and whether or not impairments which exist are or are not substantial. These are questions of fact upon which the tribunal must make a finding. (Vicary v British Telecommunications Plc IRLR 680). In dealing with the issue before it the tribunal relied on the guidance provided by the case of Goodwin v Patent Office [1999] IRLR 4, by dividing the definition of disability into 4 elements:-
(1) Does the claimant have an impairment which is mental or physical?
(2) Does the impairment affect the claimant's ability to carry out normal day-to-day activities in one of the respects set out at paragraph 4(1) of Schedule 1 to the Act and does it have an adverse effect?
(3) Is the adverse effect (upon the claimant's ability) substantial?
(4) Is the adverse effect (upon the claimant's ability) long term?
The case also states that a tribunal should adopt a purposive approach towards the construction of the legislation and make explicit reference to any relevant provision of the Guidance or Code which has been taken into account in arriving at its decision.
Having analysed the evidence in relation to the issue before and applied the relevant principles of law, the tribunal concludes a follows:-
(1) Although the tribunal did not have the advantage of hearing from a medical expert, or from the claimant himself, it is satisfied on the balance of probabilities on the evidence before it that the claimant suffered from a mental impairment, in terms of anxiety, depression and stress at the relevant time.
(2) Having regard to paragraph 4(1) of Schedule 1 to the Act, the tribunal is satisfied that the impairment affected the ability of the claimant to carry out normal day-to-day activities in respect of speech, memory and the ability to concentrate during the relevant period. The tribunal also took in to account the Guidance at D25 - D26 and the examples given therein together with (A1), D11, and B2 - B5 and concludes on the evidence that the mental impairment had a substantial adverse impact on the claimant's ability to carry out normal day-to-day activities.
(3) The tribunal considered the issue of long term effect of the impairment in accordance with Schedule 1 paragraph 2 of the Act. The Guidance, at paragraph B states:-
'In assessing the likelihood of an effect lasting for any period account should be taken of the total period for which the effect exists. This includes any time before the time the discriminatory behaviour occurred as well as any time afterwards'.
The tribunal is aware that the authorities are difficult to reconcile when it comes to the right time at which to consider whether the statutory definition of disability is satisfied. According to the Employment Appeal Tribunal in Greenwood v British Airways plc [1999] IRLR 600, the tribunal should consider the adverse effect of the claimant's condition up to and including the tribunal hearing. On the other hand in Cruickshank v VAW Motorcast Ltd [2002] IRLR 24, the Employment Appeal Tribunal held that the time at which to assess disability was when the act of alleged discrimination took place. The tribunal believes that the correct approach is to judge whether the claimant was disabled at the time of the alleged unlawful act during the relevant period and to make that judgment with the benefit of hindsight to the date of hearing. The tribunal also takes cognizance of the Guidance at paragraph B7 in assessing whether the period for which the long term effect lasts is likely to be at least 12 months and asked itself if this was more probable than not at the date when the act of alleged discrimination complained of took place. The tribunal answers this question in the affirmative, given the approach outlined above.
(4) The tribunal therefore concludes there was a disability within the meaning of the Act.
Chairman:
Date and place of hearing: 9 November 2006, Belfast
Date decision recorded in register and issued to parties: