Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 779/05

CLAIMANT: Gordon Frazer

RESPONDENT: Royal Mail Group Plc

DECISION ON A PRE-HEARING REVIEW

It is the decision of the Tribunal that the Claimant is a disabled person for the purposes of the Disability Discrimination Act 1995 and that his disability lasted from 7 July 2003 to 5 May 2005.

Constitution of the Tribunal:

Chairman: Ms W A Crooke (Chairman sitting alone)

Appearances:

The claimant was represented by Mr Michael Potter, Barrister-at-Law, instructed by Murphy's Solicitors.

The respondent was represented by Mr David Dunlop, Barrister-at-Law, instructed by Napier & Sons Solicitors.

THE SOURCES OF EVIDENCE

The Tribunal heard evidence from the Claimant on his own behalf, his General Practitioner Dr Michael Gardiner and Dr Helen Harbinson a Consultant Psychiatrist. The Tribunal heard evidence from Dr Graham McDonald a Consultant Psychiatrist on behalf of the respondent. Additionally the Tribunal had a bundle of agreed documents.

THE LEGAL ISSUE AND APPLICABLE LAW

"1(a) Did the Claimant suffer from a disability within the meaning of the Disability Discrimination Act 1995?"

"1(b) If the answer to 1(a) is yes – then over what period did the Claimant suffer from a disability?"

The relevant law is found in the Disability Discrimination Act 1995 and in particular in section 1 of that Act and Schedule 1 of that Act.

FACTS FOUND

1. The Claimant was employed as a full-time Postman operating out of Portstewart Sorting Office from 1999/2000.
2. He alleged that he was suffering harassment and bullying in the work place. His first attendance at his Doctor in respect of how he felt as a result of the harassment and bullying was on 7 July 2003. He said that the symptoms of stress and nerves had been present for approximately 3 months prior to coming to the Doctor.
3. He was not absent from work on sickness grounds until March 2004. He was then off ill until August 2004. He made an attempt to return to work for approximately 2 weeks during the month of August 2004 but found that he could not cope and went back on sick leave. From that point on he was absent from work continuously through to February 2005.
4. The Claimant had a variety of symptoms and these are listed in no particular order:

a. Loss of appetite – sometimes the Claimant could not eat because being frightened to go to work he was sick to the stomach and the food came back. While sometimes he would simply forget to eat.

b. The Claimant had poor sleep and in general a lack of sleep. He found it hard to get to sleep sometimes sitting up until 3.00 am and 4.00 am in the morning thinking about his problems in work. He also found it hard to get out of bed in the mornings.

c. Previously the Claimant had taken an interest in news and current affairs programmes. As a result of his illness he found that he could not concentrate and take in what the storylines in the news items were about.

d. The Claimant felt isolated with no energy.

e. The Claimant lost all desire to interact with his family. Anything he did as a father for his children ceased. Previously he had been able to help them with their homework and help at mealtimes. This stopped as he found he could not concentrate enough to work out what the homeworks were about. He was not interested in talking to his wife unless it was to endlessly discuss his problems with Royal Mail.

f. He described an incident where he found himself on Bouremouth Pier (near the River Bann) and had to request his wife to come and collect him.

g. He also had delusions of seeing people in 70's clothes walking up the pathway to his house and hearing people talk in his house. These were not reported to his Doctor.

h. The Claimant undertook window-cleaning as an addition to his salary from Royal Mail. He found that he was leaving out windows, leaving out houses on his rounds, forgetting to bill people and leaving his equipment behind him at various houses.

i. Gradually his involvement in the window-cleaning round dropped to him simply driving his helpers around and they did the work.

j. The Claimant used to run as a hobby in the evenings and that stopped.

5. During this period however the Claimant was able to record events in a diary and was able to make an important life decision concerning future contraception.
6. During the period while the Claimant was at work from approximately 7 July 2003 to 16 March 2004, the Claimant reported an increase in mistakes but as these were not the subject of any discipline and happened in the workplace, the Tribunal does not see that they are of any relevance to this part of the Claimant's case.
7. The Claimant's General Practitioner explained that it was only by the consultation of 20 November 2003 that he was starting to get a story coming out from the Claimant. The Claimant was not coherent and was not setting out a clear story. The General Practitioner's composite picture of the Claimant during the time from 7 July 2003 through to March 2004 was of a person who was tearful and agitated.
8. The General Practitioner prescribed a tablet called Lustral in ascending dosages. It was sometime before this tablet took effect upon the Claimant's state of mind.
9. The Claimant did not tell his General Practitioner that he went through periods of drinking heavily.

ANALYSIS OF EVIDENCE

Although the veracity of the Claimant was attacked on several grounds by Mr Dunlop, namely that he did not report everything to his General Practitioner, that there were differences between the Replies to Particulars and the evidence and that the General Practitioner did not specifically record that the Claimant had poor concentration, nonetheless the Tribunal accepts the Claimant's version of events. In such a case as this, where the issue of an impact on day-to-day events arises, it is very hard for any respondent to contradict a Claimant's version of how his day-to-day activities were affected as mostly this would be at home and the Respondent will simply not have the evidence to do so. There was considerable evidence laid by the Respondent concerning the Claimant's day-to-day activities in the course of his working day. The Tribunal heard that the Claimant made some mistakes but discounts these mistakes as being of such a minimal nature as to be of very low probative value. However, whilst the Tribunal heard that the job involved sorting letters into a frame and arranging to go out to deliver them, there was no evidence of any "normal day-to-day activities" included in the working day and no evidence that these were not affected. In the case of Cruickshank –v- VAW Motorcast Limited [2002] IRLR 24 EAT. The Tribunal stated that:-

"If, while at work, a Claimant's symptoms are such as to have a significant and long-term effect on his ability to perform day-to-day tasks, such symptoms are not to be ignored simply because the work itself may be specialised and unusual, so long as the disability and its consequences can be measured in terms of the ability of a Claimant to undertake day-to-day tasks. The Tribunal interprets this dictum as meaning even if a Claimant can carry out the tasks of his work, symptoms affecting day-to-day activities are not necessarily rendered less valid or important and are not to be ignored simply because the Claimant can carry out his work."

Furthermore we found that the Claimant's evidence was supported by his General Practitioner's evidence and part of the evidence of Dr McDonald (the respondent's medical expert) as he very fairly and openly admitted that there was a possibility that the Claimant had either told him that the Claimant suffered poor concentration or this was an observation by himself. Dr McDonald also relied on the report of the Claimant's General Practitioner Dr Gardiner and we do not discount Dr Gardiner's notes purely on the basis that the notes do not record every single symptom undergone by the Claimant. As Dr Gardiner put it, it was approximately 20 November 2003 before any sort of coherent story came out. The Doctor can only report what the Claimant tells him.

The Claimant may very well not have told his General Practitioner that he was drinking heavily, but neither was there any specific medical evidence before the Tribunal as to what precise effect this would have had upon the Claimant. Therefore we have largely discounted this evidence as being of lesser probative value.

CONCLUSIONS

To answer the question whether or not the Claimant is disabled requires the consideration of the following questions:-

1. Did he have a mental impairment?

Was he suffering from a clinically well recognised illness or one that was listed in the ICD10?

2. Did it last 12 months or more?

3. Did it have a substantial adverse effect which was not minor or trivial on his normal day-to-day activities affecting his memory and ability to concentrate?

10. WAS THERE A MENTAL IMPAIRMENT?

During the course of the hearing, it was agreed that while Dr Harbinson, for the Claimant, and Dr McDonald, for the Respondent, did not agree precisely on the diagnoses, they both considered that the Claimant suffered from a condition that was contained in the ICD10 therefore the Tribunal finds that the Claimant did have a mental impairment.

11. DID IT LAST 12 MONTHS OR MORE?

The Tribunal is conscious that the Claimant did not routinely complain of poor concentration in his visits to his General Practitioner, but he did complain of symptoms which could impact upon his concentration to a greater or lesser extent. He had poor sleep. He would sit up to 3.00 am or 4.00 am in the morning and also found it difficult to get out of bed. He was unable to eat or forgot to eat. He could not absorb the gist of the news on the television. He could not concentrate sufficiently to help out with the homework of his children. He stopped taking a common sense approach. These are all symptoms that are illustrative of poor concentration or caused by poor concentration.

He first reported to his Doctor in or around 7 July 2003 and while he did not immediately go on sickness leave there was evidence that he was continuing to suffer as a result of the situation at work as he attended his General Practitioner on 11 August 2003 and on 28 November 2003 and on 16 March 2004. Thereafter he continued to attend to collect certificates on 15 April 2004, on 15 May 2004, on 3 June 2004 and 20 June 2004. There was a more detailed consultation on 17 August 2004 at which he explained that he felt "totally stressed out" and thereafter certificates were collected at regular intervals through to 7 January 2005. There was a more detailed consultation on 17 January 2005 discussing events with Royal Mail and thereafter a certificate was collected on 4 February 2005. The Doctor was informed that Royal Mail had terminated the Claimant's employment with them from 19 February 2005 by the consultation of 21 February 2005 and finally in a consultation of 5 May 2005 the Claimant indicated that he felt worthless and expressed his feelings that he had thought Royal Mail was going to be a fabulous job. Therefore we find that the impairment lasted from 7 July 2003 to 5 May 2005.

12. DID THE IMPAIRMENT HAVE A SUBSTANTIAL ADVERSE EFFECT WHICH IS NOT MINOR OR TRIVIAL ON THE NORMAL DAY-TO-DAY ACTIVITIES OF THE CLAIMANT AFFECTING HIS MEMORY OR ABILITY TO CONCENTRATE?

It is hard to imagine more day-to-day activities than eating, sleeping, watching television, helping your children with their homework, talking to your wife and in general interacting with other persons. All of these were activities which were affected by the impairment and an adverse effect on the activities was caused by the Claimant's lack of memory or failings in his ability to concentrate. Effectively the Claimant withdrew from his normal life and everything that made him a father to his children fell. From being a happy go lucky individual he withdrew and hid behind curtains drinking. He forgot to eat, he had delusions, he had physical symptoms such as dizziness, he forgot basic matters like where he left his ladders. We find that the impact upon his normal day-to-day activities in respect of memory and the ability to concentrate was substantial and adverse. For all of the foregoing reasons the Tribunal finds that the Claimant had a mental impairment which lasted from 7 July 2003 to 5 May 2005 which had a substantial adverse effect on his normal day-to-day activities affecting his memory and/or ability to concentrate.

Chairman:

Date and place of hearing: 18 May 2007, Belfast

Date decision recorded in register and issued to parties: