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Cite as: [2008] NIIT 1370_7IT, [2008] NIIT 1370_07IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1370/07

CLAIMANT: William Haydn Cardwell

RESPONDENT: The Youth Justice Agency

DECISION ON A PRE-HEARING REVIEW

The unanimous decision of the tribunal is that the claimant at the material time was not a disabled person within the meaning of Section 1 of the Disability Discrimination Act 1995, as amended. The tribunal therefore does not have jurisdiction to determine the claimant's claim and it is dismissed.

Constitution of Tribunal:

Chairman: Mr N Drennan QC

Members: Mr J Boyd

Mr Miller

Appearances:

The claimant was represented by Mr P Mackel, Trade Union Official, of NIPSA.

The respondent was represented by Mr M Wolfe, Barrister-at-Law, instructed by Ms Alison Bell, Solicitor, Crown Solicitor's Office.

Reasons

1 This pre-hearing review was arranged to consider the following preliminary issue:-

"Whether the claimant was at any relevant time a disabled person within the meaning of the Disability Discrimination Act 1995, as amended."

2 Following a Case Management Discussion held on 31 January 2008, and having taken into account the guidance set out in the decision of the Court of Appeal in Northern Ireland in the case of Ryder v Northern Ireland Policing Board [2007] NICA 43, it was ordered, with the agreement of both parties, that the said preliminary issue would be determined at a pre-hearing review, by a tribunal of three members, comprised in accordance with Article 6(1) and (2) of the Industrial Tribunals (Northern Ireland) Order 1996; and not by a Chairman Sitting Alone. It was further agreed and ordered that, subject to the determination of the said preliminary issue at this pre-hearing review, any substantive hearing on the merits would be heard by the same tribunal and further that any findings of fact, which were found by the tribunal at this pre-hearing review, would be binding on the parties at any such substantive hearing on the merits.

3 The claimant presented a claim to the tribunal on 2 July 2007, in which he made a claim of unlawful discrimination pursuant to the Disability Discrimination Act 1995, as amended (the 1995 Act). The respondent presented a response to the tribunal on 7 August 2007, in which it denied liability but, in particular, for the purposes of this pre-hearing review, contended that the claimant was not a disabled person at the relevant time within the meaning of Section 1 of the 1995 Act.

4 The tribunal heard oral evidence from the claimant and, on behalf of the claimant, from Doctor Ciaran Meenagh, Staff Psychologist. The respondent, at the conclusion of the claimant's case, did not call any oral evidence. In addition, the tribunal also received in evidence an agreed bundle of documents; and, at the conclusion of the hearing, heard oral submissions from both representatives, which were subsequently supplemented by further written submissions.

0 The tribunal made the following findings of fact, insofar as relevant and material to the determination of the said preliminary issue.

1 The claimant was employed by the respondent as a Residential Care Worker at the Juvenile Justice Centre ('the Centre') (as it is now called) at Rathgael, Bangor, Co Down, in or about March 1999. He was very satisfied in his job, taking on as much overtime as possible; and he built up a good rapport, in the course of his work, with the juvenile residents of the Centre, in particular, by working in the gym with the said juvenile residents and also by taking charge of a football team made up of juveniles from the centre. Much of such work he did on a voluntary basis without pay.

2 Unfortunately in October 2003, when he was employed on the day shift at the Centre, he was involved in a serious verbal confrontation with one of the juvenile residents of the Centre, which culminated in the juvenile, with whom he had previously had a good relationship, unexpectedly punching the claimant on the left side of the jaw with his right hand.

Although the claimant recognised that there was always a risk of an assault in his work, he never felt it would happen to him, given his good relationship with the juvenile residents at the Centre. He was, in the circumstances, completely taken by surprise and shocked by the suddenness of what had occurred. The juvenile was subsequently charged with assault and pleaded guilty, which did not require the claimant to attend court.

3 The claimant was off work on sick absence, following the said assault, until in or about August 2004, when, on advice from the respondent's Occupational Health Service, he began a phased return to work, but on night duty only. This phased return to work ended in or about December 2004, at which time it had been hoped he would be able to return to day duties. Unfortunately he was unable to do so and had a further period of sick absence from in or about January 2005 until in or about April 2005. In April 2005, he returned to a position, at the Centre, in which he was required to do work on the night shift as a Care Worker. This was fortunate, as he felt at this time he was unable to do similar work on the day shift at the Centre. He felt able to do the night shift, in contrast to work as a Care Worker on the day shift at the Centre, principally, because on the night shift, there were always two members of staff present when carrying out duties, such as opening bedroom doors and/or giving juveniles medication and/or taking them to the toilet; and, in such circumstances, he did not feel vulnerable. He was able to carry out these duties satisfactorily, upon his return to work, including, on one occasion, with the assistance of another Care Worker, successfully dealing with an incident requiring him to move a juvenile from his room at night due to a broken pipe.

4 In or about January 2007, the Juvenile Justice Centre moved to a new custom-built facility on the Rathgael, Bangor site. The new Centre required fewer staff to operate the night shift. Following a process to identify night staff, who could be transferred to the day shift, using the criteria of 'last in first out', the claimant was selected for transfer to the day shift. In order to prepare for his transfer to the day shift, the claimant started a training course in or about December 2006/January 2007; but was unable to complete the training, as he found he was unable to carry out any work on the day shift where it involved any contact with or work with juvenile residents in the Centre or even the risk of any such contact with them. Even working in the Administrative Centre, as part of this training, the claimant avoided any chance of any such contact. In the circumstances, he never, as part of the training, actually took on the normal work duties which would be required of a Care Worker on the day shift.

5 The claimant did not dispute that the skills set/experience of working as a Care Worker on the day shift were broadly similar to those on the night shift. However he maintained that he could carry out the night shift work, because there were always two members of staff on duty, as set out before, and there was also less contact or risk of contact with the juvenile residents, as the said residents would be normally sleeping for a large part of the shift, but, in contrast, he could not work as a Care Worker on the day shift at the Centre where he would frequently be working alone and the amount of contact with the juvenile residents would be greater. In the circumstances, he was not able to complete the training, even though contact with juvenile residents was avoided or kept to a minimum. Even the thought of contact with the juveniles in the specific environment of the day shift at the Centre made him breathless and caused him to suffer panic attacks. The respondent obtained medical advice from an Occupational Physician, including a report from a Consultant Psychologist, Doctor Loughrey, but concluded in or about June 2007 that there was no vacant post in the night team, which could facilitate the claimant's return to work on the night duty; and that, due to the reduced number of staff on duty during the night and the range of tasks to be covered, any return to work for the claimant on any such restricted duty could not be facilitated. In reaching this conclusion, the respondent at all times disputed that the claimant was disabled within the meaning of the Disability Discrimination Act 1995, as amended.

6 The claimant acknowledged that, following the incident in October 2003 until February 2007, he had continued, as he had done prior to the said incident, to work, without any difficulty with juveniles/youths outside his work, including coaching football at Cliftonville Football Club. Prior to the incident but also subsequently, he had refereed football games without difficulty, up to Grade 3; which, at times, he recognised could be stressful and frequently involved contact with juveniles/youths/young people and where confrontational and stressful situations, involving a certain amount of abuse and banter could often arise - all of which he acknowledged he was able to deal with without difficulty. The claimant accepted he was not restricted in relation to any work situation other than the specific dayshift situation working with juvenile residents at the Centre and would not be restricted in any work situation outside the Centre.

7 The claimant was, as stated above, examined by Doctor G Loughrey, Consultation Psychologist, on behalf of the respondent, who had concluded, in a diagnosis, which was not disputed by Doctor Ciaran Meenagh, Staff Psychologist, who gave oral evidence on behalf of the claimant, that the claimant, following the said assault at the Centre, was suffering from a prolonged adjustment disorder, which it was agreed was synonymous with Doctor Meenagh's diagnosis of a post-traumatic stress reaction. However, both agreed that the claimant was not suffering from a post traumatic stress disorder. There was no dispute by them that, because of his said adjustment disorder/stress reaction the claimant would have significant problems in respect of his concentration and his perception of the risk of physical danger if he were to be placed in the day shift work situation at the Centre, and which would cause him a significant degree of anxiety and panic - albeit this would only arise in the said day shift work situation at the Centre.

Doctor Meenagh acknowledged (as did the claimant) that the claimant had no problem at night, working on the night shift, at the Centre, with the same juvenile residents, whom he might expect to work with on the day shift; and further that, in his opinion, he was able to lead a normal life outside the said workplace - which included contact with young people in his youth work and also as a referee. This was confirmed by the claimant in evidence to the tribunal; save that he also indicated that, if he was ever required to consider, when at home, any possible return to work at the Centre on the day shift he would suffer some anxiety and/or memory loss and/or some sleep disturbance. However even such symptoms, in those particulars circumstances, did not have a substantial adverse effect on the claimant, in the opinion of Doctor Meenagh; and whose opinion was confirmed to the tribunal by the claimant. Doctor Meenagh further stated, in light of the said diagnosis, that to place the claimant back in a day shift work situation at the Centre, would result in the claimant having a fear out of proportion to the situation but which would not under his voluntary control; but it was a fear which would not be present in the night shift work situation or indeed in his life outside the workplace.

1 The relevant law is to be found in Section 1, Schedule 1 of the 1995 Act.

Section 1 of the 1995 Act provides as follows:-

"1(1) Subject to the provisions of Schedule 1, a person has a disability for the purpose 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 the Act 'disabled person' means a person who has a disability."

2 The Employment Appeal Tribunal, in the case of Goodwin v The Patent Office [1999] IRLR 4, which was approved by the Northern Ireland Court of Appeal in the case of Ross and Precision Industrial Services Limited v DuPont (UK) Limited [2006] NIJB 92 and later in Cunningham v Ballylaw Foods Limited [2007] NICA 7, set out four questions to be addressed in deciding whether a person is disabled within the meaning of the 1995 Act:-

1. Does the claimant suffer from a mental or physical impairment?

2. Does the impairment have an adverse effect on his/her ability to carry out normal day-to-day activities within one or more of the categories set out in Schedule 1 Paragraph 4(1) of the 1995 Act?

3. Is the adverse effect substantial?

4. Is the adverse effect long-term, ie has it lasted or is it capable of lasting for at least 12 months.

It is to be noted that, in the case of Cunningham v Ballylaw Foods Limited, Girvan LJ stated at Paragraph 21 of his judgment:-

"Sequence of questions proposed in Goodwin does highlight the statutory requirement for a claimant to show both the substantial and a long-term impact from the alleged impairment. The splitting of the issues into two separate and self-contained questions whether a person has an impairment which is substantial and whether she has an impairment which is long-term may, however, be too analytical and divert attention from the fact that the substantiality of an impairment is itself influenced by the length of time the impairment is likely to last … In approaching the question whether a person qualifies as a person with a disability for the purposes of Section 1, a tribunal must not overlook that the questions of substantial adverse effect and long-term adverse effect overlap and ultimately the tribunal must take a view as to whether the overall statutory definition is satisfied on the evidence."

3 The Employment Appeal Tribunal in the case of Goodwin also made clear that a tribunal should adopt a purposive approach to construction, construing the statutory language in a way which gives effect to the stated or presumed intention of Parliament, but with due regard to the ordinary and natural meaning of the words in question. As was made clear by the Employment Appeal Tribunal, explicit reference is required to be made by a tribunal to any relevant provision of the 'Guidance on matters to be taken into account in determining questions relating to the definition of disability' or of the relevant Code of Practice, but without creating an extra hurdle over which the claimant must jump.

4 Paragraph 2(1) of Schedule 1 of the 1995 Act, deals with the question of long-term effect. It provides as follows:-

"2(1) The effect of impairment is a long-term affect if –

(a) it has lasted at least 12 months;

(b) the period for which it lasts is likely to be at least 12 months; or

(c) it is likely to last for the rest of the life of the person affected."

5 Paragraph 4(1) of Schedule 1 of the 1995 Act provides:-

"Impairment is to be taken to effect 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 every day objects;

(f) speech, hearing or eyesight;

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

(h) perception of the risk of physical danger.

This is an exhaustive list. It excludes certain functions that might be regarded as constituting 'normal day-to-day activities', for example:-

The ability to care for oneself and the ability to communicate and interact with others and perception of reality.

In the recent case of Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763, the Employment Appeal Tribunal suggested that, in practice, if the impairment is of a kind described in Paragraph 4 of Schedule 1, then it is almost inevitable that it will have an adverse effect on normal day-to-day activity (referring to the case of Ekpe v Metropolitan Police Commission [2001] IRLR 605, Paragraph 30) though, as seen above, an adverse effect is not sufficient for the definition of disabled person and any adverse effect has to be shown to be substantial and long term.

In construing the provisions of the 1995 Act, regard, as seen above, has to be had to the relevant guidance; and, in particular, insofar as relevant to this matter, to Section C of the said guidance which provides:-

"C1 The Act states that an impairment must have a long-term substantial adverse effect on normal day-to-day activities.

C2 The term 'normal day-to-day activities' is not intended to include activities which are normal only for a particular person or a group of people. Therefore in deciding whether an activity is a 'normal day-to-day activities' account should be taken of how far it is normal for most people and carried out by most people on a daily or frequent and fairly regular basis.

C3 The term 'normal day-to-day activities' does not, for example, include work of any particular form, because no particular form of work is 'normal' for most people. In any individual case the activities carried out might be highly specialised. The same is true of playing a particular game, taking part in a particular hobby, playing a musical instrument, playing sport, or performing a highly skilled task. Impairments which affect only such an activity and have no effect on 'normal day-to-day activities', are not covered."

C4 (This Section refers to the matters previously referred to in Schedule 1 Paragraph 4 of the 1995 Act.)

6 In the case of Ross and Precision Industrial Services Limited v DuPont (UK) Limited [2006] NIJB 92, the Northern Ireland Court of Appeal held that the onus of establishing the claimant was substantially affected in the relevant respects rested with the claimant. It referred to Kapadia v London Borough of Lambeth [2000] IRLR 699, where it was stated:-

"It is not enough, however, for an applicant to maintain that he or she would be badly affected if treatment were to stop – proof, preferably of an expert medical nature, is necessary."

Similarly, in Cunningham v Ballylaw Foods Limited [2007] NICA 7, Lord Justice Girvan stated at Paragraph 25 of his judgment:-

"What is true in relation to the substantiality of an impairment is true also in relation to the likelihood of long-term effects as statutorily defined. Here also the onus of proof lies on the claimant and will be dependent on the state of the medical evidence – see also Latchman v Reid Business Information Limited [2002] ICR 1453 at 1459H."

In the Ross case, the Court of Appeal gave a warning that dealing with the question whether the impairment affected a claimant's ability to carry out normal day-to-day activities compendiously with the question whether the effect on his ability to do so was substantial, may give rise to difficulties and the two issues should be dealt with separately.

In the recent case of Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763 the Employment Appeal Tribunal made clear that the only proper approach to establish whether the disadvantage is substantial is to compare the effect of the disability on the individual – which involves considering how he in fact carries out the activity compared with how he would do it, if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are substantial.

As appears from Paragraph 4 of this decision, the principle focus in this matter by the representatives, on the basis of the evidence, related to whether the claimant at the relevant time was carrying out 'a normal day-to-day activity'; and the issue of substantiality and/or long-term effect were not in issue between the parties. In the circumstances, it was not therefore necessary for the tribunal to consider such issues, as set out in the relevant case law in any further detail.

7 In relation to the issue of what is meant by the phrase 'normal day-to-day activities', there has been considerable case law.

In the case of Ross, referred to above, Kerr LCJ stated at Paragraphs 33 – 34 of his judgment:-

"33 The phrase 'normal day-to-day activities' is designed to cover general experience rather than the particular circumstances of an individual claimant. The Employment Appeal Tribunal in Goodwin's case put it this way:-

"36 What is a day-to-day activity is best left unspecified; easily recognised but defined with difficulty. What can be said is that the enquiry is not focused on a particular or special set of circumstances. Thus, it is not directed to the person's own particular circumstances either at work or at home. The fact that a person cannot demonstrate a particular skill, such as playing the piano, is not an issue before the tribunal, even if it is considering a claim by a musician. Equally, the fact that a person had arranged their home to accommodate their disability would make enquiries as to how they manage their particular home not determinative of the issue."

34 One must focus on the ordinary incidents of life, therefore in considering whether the claimant is affected in the requisite way. Activities at work can, of course, provide some insight into the question because these may replicate circumstances that are normally encountered outside the workplace. Thus in Rush's' case [Law Hospital NHS Trust v Rush (2001) IRLR 611] the Court of Session acknowledged that some work activities may be relevant. At Paragraph 17 the Court said:-

" … it is not, in our opinion, correct to say as a matter of principle that the duties performed by an applicant at work, and the way in which they are performed, cannot be relevant to the assessment which the tribunal has to make of the applicant's evidence. Whether any such evidence is in fact relevant must depend on the circumstances of each case."

Kerr LCJ also quoted at Paragraph 35 of his judgment, with approval, an earlier passage from Paragraph 17 of the judgment of the Court of Session in the case of Rush:-

" … if an employee has given evidence that he or she is unable to carry out certain normal day-to-day activities at home, or can only do so with great difficulty, it is, in our opinion, clear that evidence as to his or her ability to carry out these activities while at work without significant difficulty could have a bearing on the credibility of the applicant. Evidence that the applicant could not carry out such activities at work, or could only carry them out with considerable difficulty, could support his or her evidence. Further, in certain circumstances, evidence as to particular duties carried out by the applicant at work could equally have a bearing on the tribunal's assessment of his or her credibility and reliability. For example, if an applicant gave evidence of being unable to lift a bottle with his or right hand at home, evidence that at work the applicant regularly lifted heavy weights with his or her right hand without difficulty could certainly have a bearing on the applicant's credibility."

.8 Thus, in the case of Ronn, on the facts of that case, the Court of Appeal accepted the tribunal was entitled to contrast the claimant's ability to perform tasks at work, involving manual dexterity and ability to lift and move everyday items, with claims about how he was affected in his domestic life.

.9 In the case of Cruickshank v VAW Motorcast Limited [2002] IRLR 24, which was a case where the adverse effects of the claimant's impairment – occupational asthma – on his normal day-to-day activities were exacerbated by his working conditions or environment, the Employment Appeal Tribunal held the tribunal should consider whether the impairment has a substantial and long-term adverse effect on the employee's ability to perform normal day-to-day activities both while actually at work and while not at work. 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. Thus, in Cruickshank, the Employment Appeal Tribunal appeared to accept that a person might be disabled for some jobs but not others. Indeed, it felt that to conclude otherwise in that particular case 'would risk turning the Act on its head' (see Paragraph 21 of the judgment). However, it has been suggested by at least one learned commentator (see Blackstone's Guide to the Disability Discrimination Legislation Karon Monaghan QC Page 83) that the Cruickshank case is difficult to reconcile with the guidance and the concept of normal day-to-day activity and does suggest that a person who is adversely affected by the conditions in which they are placed by reason of a relevant relationship, such as employment, is entitled to have those effects taken into account. Indeed, this appears to be confirmed by the recent decision of the Employment Appeal Tribunal in the case of Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763 – to which the tribunal drew the attention of the representatives.

.10 In Disability Discrimination Law in Practice, Brian Doyle, 6^th Edition, Paragraph 2.4.3, it is made clear that "duties while at work often encompass normal day-to-day activities. At the very least, evidence of ability or inability to carry out normal day-to-day activities while at work goes to the credibility of any evidence that those activities cannot be carried on outside work (or can only be done so with difficulty)."

.11 What is normal is anything which is not abnormal or unusual judged by an objective population (see Ekpe v Metropolitan Police Commission [2001] IRLR 605 EAT). However, as noted in the Rush case, work activities is not one of the listed normal day-to-day activities in the legislation and guidance; but as seen in decisions such Ronn, Rush, as Cruickshank and Paterson the distinction between work activity and non-work activity is now not as clear cut as might initially have been thought having regard to the wording in the Act and guidance.

.12 In the recent case of Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763 the Employment Appeal Tribunal, purporting to apply the case of Chacón Navas v Eurest Colectividades SAC – 13/05 [2006] IRLR 706 ECJ, held that a police officer, with dyslexia in a promotion selection process, was disadvantaged. He was disadvantaged to the extent he required 25% extra time to complete a professional examination as compared with his other police colleagues. The Employment Appeal Tribunal confirmed that, insofar as the work activity included normal day-to-day activities, the tribunal was entitled to have regard to it in assessing the claimant's evidence (see Law Hospital NHS Trust v Rush [2001] IRLR 611. The Employment Appeal Tribunal also concluded on the evidence that "carrying out an assessment or examination could properly be described as a normal day-to-day activity. Moreover, as we have said, reading and comprehension are themselves normal day-to-day activities". It also held, applying the decision of the European Court of Justice in the Chacón Navas case, by the Employment Appeal Tribunal, that day-to-day activities must be given a meaning 'which encompasses the activities which are relevant to participation in professional life. Appropriate measures must be taken to enable a worker to advance in his or her employment. Since the effect of the disability may adversely affect promotion prospects, then it must be said to hinder participation in professional life."

It is correct to recognise that this recent decision of Paterson has not been without controversy (see Disability Discrimination Law in Practice, Brian Doyle, at Paragraph 2.4.7, and the editorial to the October 2007 Industrial Relations Law by Michael Rubenstein). In particular, Michael Rubenstein in the October 2007 foreword to the Industrial Relations Law Report criticised the decision. He suggests "it substantially lowers the bar that must be surmounted to claim disabled status under the DDA ". He also states it "more broadly focuses attention on whether an employee is disabled from doing their job; but that is not the focus of the DDA as it has been understood hitherto. Normal day-to-day activities have not been regarded until now as being what is normal for the employee in their particular job. The problem with the EAT's analysis is that it makes, whether or not an employee is disabled for the purposes of the DDA, dependent upon the particular job they have and, indeed, on a particular way in which promotion is assessed. On this reasoning, Mr Paterson was not disabled until he applied for promotion and would not be disabled if he moved to another job where written examinations were not required. This is inconsistent with the statutory scheme, whereby, essentially, a person either has disabled status or they do not".

.13 As was made clear in a series of cases (see the Goodwin and Cruickshank cases previously referred to), but also Greenwood v British Airways [1999] IRLR 60, the relevant time, at which the disability falls to be assessed, is the time when the alleged discriminatory act(s) took place. Again, as indicated above, there was no dispute between the parties and their representatives that the relevant date, in this particular case, was when the discriminatory act occurred, namely in or about January 2007 at the time when the claimant was selected for transfer to the day shift at the Centre.

There was further no dispute between the parties that, at the material time the claimant, due to his prolonged adjustment disorder/post-traumatic stress reaction had a mental impairment, for the purposes of the definition in Section 1 of the DDA. Equally, there was no dispute that, if the tribunal was satisfied that the said impairment had an effect on his ability to carry out normal day-to-day activities, any such effect was adverse, substantial and long-term. There was also no dispute that any such effect would fall within the categories set out in Schedule 1 Paragraph 4(1) of the 1995 Act, namely category (g) 'memory or ability to concentrate, learn or understand and/or (h) perception of the risk of physical danger. However the issue, which remained in dispute between the parties was whether the claimant's impairment, in the circumstances, had such an effect on his ability to carry out 'normal day-to-day activities'. [Tribunal's emphasis]

The tribunal was very mindful that and each case is very much decided on its own particular facts. The tribunal found that the claimant was an impressive and straightforward witness, who did not in any way attempt to exaggerate his impairment or the effect it had had upon him. He fairly and frankly acknowledged that he did not suffer any impairment, which had a substantial long term adverse effect on any aspect of his life, other than the substantial long term effect on his ability to carry out his work, on the dayshift, as a care worker, working with juvenile residents at the Centre. He was able, in contrast, to do similar work on the nightshift as a care worker at the Centre, where he was required to use a similar skills set and to have contact, albeit at a reduced level and accompanied by another member of staff, with the same juvenile residents at the Centre, with whom he would have had contact on the dayshift. He was, save in the specific unique work situation of the dayshift at the Centre, able to work normally and to lead a normal life. He was able to work, for example, with young people outside of the Centre and to referee football matches, which it was recognised could often involve stressful and confrontational situations with young people. If the claimant had suffered a similar effect to that seen in relation to the dayshift work situation at the Centre in any circumstances outside that situation, the tribunal would have had to have regard to it; and depending on the precise circumstances, it might have resulted in the tribunal reaching a different conclusion in this matter. The tribunal fully recognised in light of the authorities referred to in the previous paragraphs, that what happened at work, in relation to the ability or inability of a person to carry out normal day to day activities, was very relevant in determining this matter. But, in relation to this claimant, the tribunal took into account, in particular, that he was able, to do similar work on the nightshift; but more importantly, there was clear undisputed evidence that he was able to carry out his normal day to day activities in every other situation, save in that particular dayshift work situation at the Centre. In essence, he was able to work anywhere else, other than the said dayshift work situation at the Centre.

The tribunal noted that in the case of Patterson -v- Commissioner of Police of Metropolis (2007) IRLR 763, the Employment Appeal Tribunal appear to have widened the previous case law in relation to what is meant by "normal day to day activities"; and that normal day to day activities can include activities which are relevant to participation in professional life. However, it has to be recognised the facts in the Patterson case are very different to the facts found in this particular case. In the opinion of the tribunal, the Employment Appeal Tribunal was not holding, as appears to be suggested by the claimant's representative in his submissions, that if a claimant can establish an impairment, which has a substantial long term effect on some aspect of his work activities, that it must be considered to have the necessary effect on his normal day to day activities. If the legislation had been intended to allow for such a situation, in the opinion of the tribunal, it would have clearly said so. It did not; and this was confirmed in the guidance and also the case law to which reference has been made above (see further law Hospital NHS Trust -v- Rush (2001) IRLR 611; Cruickshank -v- VAW Motorcast Ltd (2002) IRLR 24; Ross & Precision Industrial Services Ltd -v- Du Pont (UK) Ltd (2006) NIJB 92.) The specific work activity, the nature of same and its effect on the claimant has to be considered in each individual case. In the Patterson case, reading and comprehension were themselves found to be normal day to day activities; but also the carrying out of an assessment or examination, necessary for promotion, where such reading and comprehension were component parts. There was clearly recognition by the Employment Appeal Tribunal, that activities which are relevant to participation in professional life, such as seeking promotion by way of examination or assessment, are able to fall, depending upon particular facts, within the meaning of normal day to day activities. Again this is very different to the facts in this particular case. If the claimant, in the Patterson case, had been required to take such an examination or assessment, whether in the context of his police work or otherwise, in order to continue to participate in professional life, he would have been similarly disadvantaged. In this particular case, the claimant was not so generally disadvantaged in relation to his work; but only in the specific day work situation at the Centre and in no other work situation. The tribunal therefore did not consider the dicta in the Patterson case assisted the claimant in determining the said preliminary issue. The tribunal concluded that the claimant, having been only so impaired in that said dayshift situation at the Centre, but not otherwise, had not established that he had an impairment which had the said necessary, effect on his ability to carry out normal day to day activities, as required under Section 1 of the 1995 Act.

In the circumstances, the tribunal was satisfied that the claimant was not a disabled person within the meaning of section 1 of the 1995 Act. The tribunal therefore does not have jurisdiction to determine the claimant's claim and it is dismissed.

Chairman:

Date and place of hearing: 19 February 2008, Belfast.

Date decision recorded in register and issued to parties: