Industrial Tribunals Northern Ireland Decisions

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Cite as: [2008] NIIT 1955_07IT, [2008] NIIT 1955_7IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1955/04

CLAIMANT: Charlie Collins

RESPONDENT: Magherafelt District Council

DECISION

The unanimous decision of the tribunal is that the respondent subjected the claimant to unlawful discrimination on grounds of disability. Further, the respondent unlawfully dismissed the claimant from employment. The tribunal awards total compensation, including statutory interest, of £9,355.80.

Constitution of Tribunal:

Chairman: Mr J Leonard

Members: Mrs Ferguson

Mr Dodds

Appearances:

The claimant was represented by Mr C Hamill, Barrister-at-Law, instructed by Wilson Nesbitt, Solicitors.

The respondent was represented by Mr M Potter, Barrister-at-Law, instructed by P A Duffy & Company, Solicitors.

REASONS

Introduction

The claimant's claim to this tribunal was initiated by an application dated 22 June 2004 in which the claimant claimed disability discrimination and unfair dismissal, the respondent being named as Magherafelt District Council. In that application, after detailing alleged facts, the claimant claimed both reinstatement and compensation only (this was later clarified to the tribunal as constituting a claim for compensation only). By response dated 24 August 2004 the respondent resisted the claim, stating that the claimant's employment terminated owing to frustration of contract since he was on sick leave for 18 months. Unfair dismissal was denied, as was disability discrimination; the claims and assertions as set out in the claimant's complaint were denied in their entirety.

After a Case Management Discussion held on 7 July 2006, on 26 January 2007 there was a pre-hearing review in respect of the issue of: "whether the claimant had a disability within the meaning of the Disability Discrimination Act 1995". The tribunal on that occasion, by agreement, directed that the claimant's representatives were to obtain a medical report from the claimant's General Practitioner upon a specific issue relating to the claimant's continence at the material time and, having received any subsequent report, the respondent's representatives were to indicate whether it was considered that the claimant had a disability at the material time. Thereafter, the matter was to proceed for a full hearing on the merits.

In consequence of the foregoing, the matter proceeded as a full hearing before this tribunal. At the outset of the hearing, Mr Potter, Counsel for the respondent, confirmed to the tribunal that the respondent did concede that there was a potential qualifying disability at the material time. It was agreed that the material time (as regards the unlawful discrimination alleged) was the time in or around April of 2004 leading up to and including the date of termination of employment. Mr Potter conceded that the potential qualifying disability at the material time related to the issue of urinary continence. However, Mr Potter made it clear that the submission would be made that the respondent did not have any knowledge of that continence issue at the material time. In response to that initial point, Mr Hamill, Counsel for the claimant, clarified to the tribunal that the claimant had never made any concession that the claimant's qualifying disability related only to the issue of continence at the material time.

Accordingly, the tribunal had to determine the following issues:-

(i) Was the claimant a person with a disability as defined in the Disability Discrimination Act 1995, as amended, at the material time?

(ii) If so, in what respects was the claimant a person with a disability?

(iii) If so, what was the state of knowledge of the respondent at the material time in respect of any disability?

(iv) If the respondent had actual knowledge at the material time of any disability, or if knowledge was to be imputed, did any statutory duty arise on account of this?

(v) If so, did the respondent act in breach of any statutory duty? Did any act or acts of unlawful discrimination occur?

(vi) If there was a finding of unlawful discrimination, was it appropriate to award compensation in the case and, if so, how was any award to be determined?

(vii) Was the contract of employment frustrated? Did the respondent unfairly dismiss the claimant from employment? If so what was to be the appropriate remedy, including any award of compensation?

In regard to these latter issues, Mr Hamill very helpfully in the course of proceedings made it clear that the only remedy that was being sought by the claimant was compensation for injury to feelings for unlawful discrimination and, further, a basic award of compensation for unfair dismissal (and a small award for a loss of statutory rights). It was explained that, notwithstanding that a schedule of loss had been provided to the tribunal, the claim would be confined to the basic award only for unfair dismissal in view of the claimant's earnings status after the termination of employment and no compensatory award was sought.

The tribunal had before it two substantial lever arch files of documents. The various witnesses read from their witness statements to the tribunal and the tribunal also heard oral evidence from the following persons who were subject to cross-examination and in some cases to questioning by the tribunal: the claimant, Mr Sean Marshall, Dr John Tohill, Mrs Sheila Loughran, Mr T J Johnston, Mr J A McLaughlin and Mrs Florence Wilson. Upon conclusion, the tribunal received oral submissions from both representatives.

THE TRIBUNAL'S FINDINGS OF FACT

In consequence of the written and oral evidence adduced, on the balance of probabilities the tribunal made the following findings of fact:-

(a) The claimant, who was born on 14 June 1960, commenced employment with the respondent on or about 25 September 1995 as a General Labourer. In that capacity, the claimant was assigned by the respondent to working with refuse collection vehicles.

(b) On 15 November 2002, the claimant sustained a serious injury at work when the refuse collection vehicle upon which he was travelling, standing on the rear passenger step, left the road. In the course of the events that occurred thereafter the claimant received severe injuries. He was removed from the scene of the incident to mid-Ulster Hospital, Magherafelt. The claimant was admitted to Intensive Care where he remained for nine days. The physical injuries sustained by the claimant included chest crush injuries with a facture of his right lower ribs. This required intensive monitoring and the insertion of an inter-costal drain. The claimant also sustained rather more minor physical injuries to the right side of his body including right knee problems that impeded his mobility. The claimant was discharged from hospital to his home under medical supervision on 28 November 2002.

(c) The claimant was seen at home by his General Practitioner, Dr John Tohill, shortly after his discharge from hospital. He complained of chest pain and shortness of breath. The Doctor also found evidence of low mood and sleep disturbance. The Doctor administered an inhaler for the shortness of breath and prescribed medication. The claimant was reviewed regularly as an outpatient by mid-Ulster Hospital in respect of the physical injuries until his discharge on 24 January 2003. The injury to his lung resulted in a continuing problem regarding mobility due to breathing difficulties. For example, in February 2003 the claimant is recorded as only being able to walk about 20 yards. Another physical problem that is recorded as affecting the claimant was a continence issue. That was probably connected to the claimant having a catheter whilst in hospital.

(d) Apart from the physical symptoms, the claimant was diagnosed most probably as having developed Post Traumatic Stress Disorder ("PTSD"). He was recorded as having experienced low mood, irritability, flashbacks, tearfulness, marked sleep disturbance, and anxiety. Various medications were tried. For example, his General Practitioner, Dr John Tohill, recorded in a report dated 11 December 2003 that the claimant appeared to be responding to the antidepressant drug Dothiepin 75mgs taken daily. The General Practitioner also recorded the claimant as having been referred to psychiatric services in August 2003 and having been seen by Dr Christine Kennedy, a Consultant Physiatrist, on 23 October 2003. The claimant also, whilst awaiting for an outpatient psychiatric appointment, attended a trained counsellor, Mrs Sheila Loughran, for counselling, in a private capacity. Indeed it appears that the claimant attended fortnightly counselling sessions from July 2003 onwards.

(e) Dr John Tohill records that when he saw the claimant in early December 2003, the chest symptoms seemed to have largely resolved and the claimant was more positive in his mood, although continuing to take Dothiepin 150mgs, daily. In the report of 11 December 2003, the General Practitioner confirms, in regard to prognosis, that if the claimant continued to improve both physically, and more importantly psychologically, then the earliest the Doctor would expect him to be fit for light duties would probably be mid-March to April 2004, but it could possibly be as late as June 2004.

(f) In respect of the psychological aspects of the injuries sustained, Dr Christine Kennedy, Consultant Psychiatrist, in a report dated 27 October 2003 confirmed that she had seen the claimant on 23 October 2003 when he had complained of poor sleep pattern, flashbacks, mood swings and general irritability. After reciting a few previous life episodes which had caused some rather more minor psychological difficulties to the claimant, the Consultant then goes on to record what was apparently seen by the claimant as a "near death experience" as a result of the November 2002 accident. The claimant reported to the Consultant variable mood, depression, disturbance of sleep, and flashbacks. The claimant was recorded as having been prescribed Prothiaden from May 2003, with apparent good effect. The Consultant recorded that the claimant's mental state appeared to be improving with the use of Dothiepin and commended the Community Psychiatric Nurse counselling. The diagnosis was recorded by Dr Kennedy as being "probably PTSD". The claimant was asked to increase his Dothiepin to 150mgs daily and to continue with the counselling sessions. The prognosis was described by Dr Kennedy as being "relatively good". The claimant was then reviewed by Dr Kennedy on 17 February 2004 and Dr Kennedy recorded deterioration in mental state following a January 2004 interview at work. The claimant was recorded as not going out socially to play darts; he was anxious in chapel and when travelling by car. The claimant was asked to take his Dothiepin 150mgs at night and the counselling sessions continued. There was a further review and in a report dated 15 April 2004 to Dr John Tohill, Dr Kennedy's SHO, Dr Oliphant, recorded that the diagnosis of PTSD was confirmed; the claimant still continued to suffer from occasional flashbacks, nightmares, hyper vigilance and anxiety symptoms. He appeared quite sweaty and anxious, but was reactive. The Doctor increased the dosage of Dothiepin to 225 mgs at night and the claimant was advised to continue with the counselling sessions.

(g) Throughout the weeks and months following the accident, the respondent maintained communication with the claimant by means of a number of house visits. The claimant had of course continued to see his General Practitioner, Dr John Tohill, and medication continued to be prescribed. In addition, the respondent arranged for the respondent's Occupational Health Physician, who was initially a Dr Fawcett, to arrange a home visit with the claimant in September 2003. Dr Fawcett reported briefly to the respondent in September 2003 that he had found the claimant to be unfit for any work at that time. He expressed the hope that the claimant would be fit to return to work in the next "two to three months".

(h) The respondent then changed its Occupational Health Physician, appointing a Dr Martin Tohill to fulfil that function. An appointment was arranged for the claimant to see Dr Martin Tohill on 6 December 2003. After seeing the claimant on that date, Dr Martin Tohill wrote to Dr John Tohill requesting a medical report from the GP dealing with specific issues and points. Dr John Tohill responded to that request by providing the report dated 11 December 2003 indicating at the conclusion, with regard to prognosis, that the GP would expect the claimant to be fit for light duties probably from mid-March to April 2004, or possibly as late as June 2004.

(i) By medical report dated 16 January 2004 Dr Martin Tohill reported to the respondent's Director of Operations, Mr T J Johnston, that the GP, Dr John Tohill, felt that the claimant was making good progress and that physically he had almost fully recovered (which latter assertion indeed in his subsequent oral evidence to the tribunal Dr John Tohill disputed). However ongoing psychological difficulties were reported. As a consequence, Dr Martin Tohill informed the respondent's Director of Operations that he was optimistic that the claimant could probably plan for return to work around the end of March or early April 2004. It was initially recommended by Dr Martin Tohill that the claimant should not work in refuse collection if this were practicable. The Doctor stated: "I would initially recommend he does not work in refuse collection if this is practicable to you. This may turn out to be a long term transfer, depending on how his psychological health recovers in the long term. The only way to know will be to introduce him to alternative work and assess how things go over a number of months".

(j) Dr John Tohill, then wrote a brief report (which report was indeed to have considerable significance in the matter) on behalf of the claimant dated 5 April 2004 stating as follows:-

"Mr Collins still has ongoing residual symptoms – both physical & mental, as a result of his accident on 15 November 2002. He will not be fit for the next three months at least".

(k) An informal meeting with the claimant had been arranged to be held on 22 January 2004 which was attended by Mr T J Johnston, by the claimant, by Mr Sean Marshall a Shop Steward representing the claimant, and by Mrs Florence Wilson, the respondent's Administration and Personnel Officer. In the course of that meeting, the claimant stated that he hoped to be back to work at the end of March or early April 2004. The minutes of the meeting record that Mr Johnston asked the claimant a number of questions regarding his fitness to return to work and also referred to the medical evidence that was available at that time. Some of the content of what was discussed at that meeting was in contention, especially the issue of whether or not there was specific mention made on the part of Mr Johnston of "pricking plants", thereby suggesting that there was specific discussion with the claimant of rather light horticultural work being available to facilitate a return to work. The tribunal will return to this issue below. Towards the conclusion of the meeting, Mr Johnston stated to the claimant that if the claimant was not able to return at the end of March, the respondent would almost certainly have to terminate the employment. The claimant felt rather aggrieved and some weeks later he wrote a letter dated 7 April 2004 to the respondent's Chief Executive, Mr J A McLaughlin, stating that he felt very annoyed by Mr Johnston's attitude towards his illness. Together with his letter, the claimant enclosed a copy of Dr John Tohill's report dated 5 April 2004, referred to above.

(l) A further proposed meeting with Mr Johnston that had been scheduled for 9 April 2004 was then re-scheduled to take place on 15 April 2004 and proceeded on that date. It was attended by Mr Johnston, by the claimant, by Mr Sean Marshall and by Mrs Wilson. As a conclusion of that meeting, Mr Johnston stated that he had no alternative but to terminate the claimant's employment with the respondent; the claimant would be paid eight weeks' notice, commencing on 19 April 2004. The claimant was informed of his entitlement to appeal the decision to the respondent's Chief Executive.

(m) The claimant indicated an intention to appeal. An appeal hearing was duly held on 23 April 2004 attended by Mr McLaughlin as Chief Executive, and by the claimant, Mr Marshall and Mrs Wilson. In the course of that hearing, there was a discussion as to when the claimant might return to work. In conclusion, Mr McLaughlin stated that he would consult the report provided by the respondent's Occupational Health Advisor and that he would take legal advice. Subsequently, by letter of 28 April 2004 Mr McLaughlin confirmed the outcome of the appeal. That outcome was that Mr McLaughlin had decided to uphold Mr Johnston's decision to dismiss the claimant for the reasons that had been stated.

(n) After the dismissal, the claimant was without employment and in receipt of Incapacity Benefit from 15 April 2004 to 27 July 2004. He then commenced employment with United Hospitals Trust and was employed from 28 July 2004 to 17 August 2006. Thereafter, he was employed by Quinn Building Supplies Limited from 1 September 2006 to 12 April 2007 and then by Meadowvale Shopping Centre from 19 April 2007 onwards, and he continued to be so employed at the time of the tribunal hearing.

THE APPLICABLE LAW REGARDING DISABILITY DISCRIMINATION

It might be useful to set out the applicable law regarding disability discrimination at this point. One of the primary issues for determination is whether or not at the material time the claimant had a disability within the meaning of the Disability Discrimination Act 1995, as amended. The act or acts of discrimination alleged took place in and around April 2004. The material statutory provisions are to be found in Sections 1 - 6 of the Disability Discrimination Act 1995 ('DDA 1995') and in Schedules 1 and 2 thereof. The state of the law as regards DDA 1995 is that at April 2004. As far as relevant, these provisions are as follows:-

"1. - (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.

2. - (1) The provisions of this Part and Parts II and III apply in relation to a person who has had a disability as they apply in relation to a person who has that disability.

3. - (1) The Secretary of State may issue guidance about matters to be taken into account in determining –

(a) whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities; or

(b) whether such an impairment has a long-term effect.

(2) -

(3) A tribunal or court determining for any purpose of this Act, whether an impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities, shall take into account any guidance which appears to it to be relevant.

4. - (2) it is unlawful for an employer to discriminate against a disabled person whom he employs –

(d) by dismissing him, or subjecting him to any other detriment."

In respect of the definition of discrimination, Section 5 of DDA 1995 defines discrimination as follows:-

"(1) For the purposes of this Part, an employer discriminates against a disabled person if -

(a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b) he cannot show that the treatment in question is justified.

(2) For the purposes of this Part, an employer also discriminates against a disabled person if -

(a) he fails to comply with a Section 6 duty imposed on him in relation to the disabled person; and

(b) he cannot show that his failure to comply with that duty is justified."

Justification is dealt with in subsections (3), (4) and (5) as follows:-

"(3) Subject to subsection (5), for the purposes of subsection (1) treatment is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.

(4) For the purposes of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial.

(5) If, in a case falling within subsection (1), the employer is under a section 6 duty in relation to the disabled person but fails without justification to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with the section 6 duty."

Then Section 6 of DDA 1995 concerns the duty of an employer to take reasonable steps to make adjustments in relation to arrangements and physical features of premises to prevent the disabled person from suffering disadvantage:-

"6. - (1) Where –

(a) any arrangements made by or on behalf of an employer, place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect."

Subsection (3) sets out detailed examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1). They include not only adjustments to premises but also allocating some of the disabled person's duties to another person, transferring him to fill an existing vacancy, altering his working hours or assigning him to a different place of work.

Subsection (4) refers to those matters to which regard shall be had in determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1).

Turning then to Schedules 1 and 2 of DDA 1995:-

"Schedule 1

1. – (1) 'Mental impairment' includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness.

2. – (1) The effect of an impairment is a long-term effect 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.

(2) Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

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."

The "Guidance on matters to be taken into account in determining questions relating to the definition of disability" ("the Guidance") provides practical guidance on the meaning of "substantial" adverse effect, the meaning of "long-term effects" and "recurring effects" and the meaning of "normal day-to-day activities".

THE APPLICABLE LAW REGARDING UNFAIR DISMISSAL

In respect of the applicable law relating to unfair dismissal, the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer. Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer. It is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a specified reason as set out in Article 130 or some other substantial reason of a kind such as to justify the dismissal. The specified reasons set out in Article 130 include capability for performing work of the kind which the employee was employed to do and capacity can be assessed by reference to health, amongst other matters. Article 130(4) of the 1996 Order provides that where the employer has shown the reason for dismissal and that it falls within one of the specified categories (or some other substantial reason) the determination of the question whether the dismissal is fair or unfair, having regard to the reason shown by the employer, depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and shall be determined in accordance with equity and the substantial merits of the case.

In the application of these statutory provisions, an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal fair. In many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another. The function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted (see Iceland Frozen Foods Limited –v- Jones [1982] IRLR 439)

The respondent in its defence also advanced the argument that the contract of employment was legally frustrated and the tribunal shall make further comment on that below.

THE TRIBUNAL'S DETERMINATION

Applying the applicable law to the tribunal's findings of fact, the tribunal notes that the claimant sustained a very serious injury in the course of his employment. As has been made clear from the medical notes and records and from the various medical reports of the Medical Practitioners who had dealings with the claimant, initially the claimant sustained severe crush chest injuries which resulted in the claimant being kept in intensive care for some days and thereafter being discharged from hospital to home but being entirely physically unfit to work for a period of time thereafter. The physical injuries sustained by the claimant are well-documented. Apart from a relatively minor injury to the claimant's knee, there was a significant mobility issue as a result of the claimant's chest injuries. It appears that the claimant's lung capacity was reduced and he had breathing difficulties due to apparent permanent lung damage. For a period of time he was unable to walk any significant distance. It appears to be accepted by all parties that there was a significant residual effect deriving from the physical injury which subsisted for a rather considerable period of time after the accident. In this regard the tribunal has seen evidence from the various medical reports. The tribunal has been particularly alert to any reference in the evidence to the issue of mobility or ability to lift or move everyday objects.

It must be said that, in part, some of the evidence is not entirely clear. By way of one example of the difficulty encountered by the tribunal, the GP's notes and records and other reports seem to suggest that Dr John Tohill observed at 10 January 2004 that the claimant could walk 300 yards, 70% of normal rate and with a "mild limp". However, somewhat incongruously, by 23 January 2004 it is recorded by Dr John Tohill that the claimant walks "two miles per day". In her report of 19 February 2004, Dr Christine Kennedy records that the claimant walks "a half mile per day". If these reports are to be viewed as accurate, the claimant's ability to walk distance seems to have improved very rapidly indeed at this particular point in time, that is to say in early 2004.

Looking at the general situation as this appears to relate to the claimant's mobility, and indeed paying heed to any other physical symptoms that appear to have resulted from the accident, the tribunal concludes that the claimant had substantially recovered, physically, by April 2004. Indeed, Dr Martin Tohill concludes in his report dated 16 January 2004 to the respondent that the claimant's physical symptoms had "largely resolved" by the date of the report. However, it must be said that in his oral testimony to the tribunal, Dr John Tohill took issue with that conclusion, indicating that there were some physical symptoms which suggested that indeed by April 2004 things had not largely resolved. However, left with the totality of the evidence, the tribunal is in considerable doubt as to the extent or degree of any residual physical symptoms suffered by the claimant at April 2004. On balance, (leaving aside the issue of continence which shall be the subject of further comment below) and not without considerable difficulty, the tribunal concludes that, applying the statutory test regarding the definition of disability contained in DDA 1995, the claimant was not physically disabled at April 2004. This is so in that it was not satisfactorily demonstrated to the tribunal that at the material time a physical impairment affected the ability of the claimant to carry out normal day-to-day activities in any one or more of the ways stated in Section 4 (1) (a) – (h) in a manner that was substantial (substantial meaning more that trivial – see Goodwin -v- The Patent Office [1999] IRLR 4, EAT). The burden of proof in that regard is on the claimant, as is mentioned further in Paragraph 17 below.

Turning then to the issue of continence, it is entirely clear from the evidence that the claimant did have ongoing medical issues regarding continence. The record of prescription of medication indicates that the anti-muscarinic drug Detruisitol 2 mgs twice daily (and then Detruisitol XL 4 mgs once daily) was being prescribed on a continuing basis up to September 2004. It appears to be the case that the continence issue did not resolve itself until a considerable period of time after the employment had been terminated. The tribunal heard and noted the evidence in that regard. The tribunal has little doubt that, applying the statutory test as mentioned above, the claimant was quite probably a person with a disability as far as continence is concerned at the time of termination of employment. However, the respondent's actual knowledge of that medical condition at the material time was in issue and the tribunal will comment further below on the respondent's state of knowledge in this regard.

Apart from any physical symptoms suffered as a result of the accident, it is also clear from the medical evidence that the claimant sustained quite a severe psychological reaction to the incident. In her medical report dated 27 October 2003, the Consultant Psychiatrist, Dr Kennedy, has described the diagnosis as "probably PTSD". Medication was prescribed being the antidepressant drug Dothiepin at a dosage initially of 75mg, but this was increased on the recommendation of Dr Kennedy to a dosage of Dothiepin 150mg. It is also the case that the Consultant felt that the claimant would derive considerable benefit from counselling and from attending a Community Psychiatric Nurse. From the evidence, these psychological symptoms persisted and had a considerable impact on the claimant's normal day-to-day activities. It appears to be the case that the claimant was inclined not to overly emphasise and indeed in some respects to play down the adverse effect of the symptoms. This has been remarked upon by Dr Kennedy. For example in her report dated 19 February 2004 to Dr John Tohill Dr Kennedy states: "Mr Collins appears to be minimising his symptoms and has a great deal of disability which becomes apparent in the course of his conversation. He does not go out socially e.g. to darts any more but attributes this to a lack of energy. He is anxious in chapel and around people and seems to be out in the main accompanied by his wife or child. When travelling away from home in his car he will be drenched with sweat and finds his sense of direction is poor and he is flustered". Thus, the evidence is that the claimant did not attend social activities, such as playing darts, and that he was to a degree largely housebound over a considerable period of time. When he had to be conveyed to hospital appointments, for example, his wife drove him and he seems to have been under considerable stress when outside his own home. (It is of note that the Guidance at C14 gives the example "inability to go out of doors unaccompanied" as being one illustration of a substantial adverse effect). The claimant then appears to have commenced regular walking in an endeavour to attain a better level of fitness. Notwithstanding that, medication continued to be prescribed, as mentioned.

The question of whether or not a person is disabled for the purposes of DDA 1995 has to be determined by reference to the date or dates of the alleged act or acts of discrimination (see Cruikshank -v- VAW Motorcast Ltd [2002] IRLR 24). The time under scrutiny by the tribunal is April 2004. It is well-settled that there are four questions which have to be considered by any tribunal in this type of a case. These derive from the authority of the case of Goodwin -v- The Patent Office [1999] IRLR 4 where the Employment Appeal Tribunal stated that a tribunal should consider the following four questions –

1. Does the claimant have an impairment which is either 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 as set out in Schedule 1, paragraph 4(1) of the 1995 Act and does it have an adverse effect?

3. Is the adverse effect substantial?

4. Is the adverse effect long-term?

It is also clearly established that the burden of proof is on the claimant in any such case (see Ross -v- Precision Industrial Services Limited and Dupont (UK) [2005] NICA 25, Cunningham v Ballylaw Foods Limited [2007] NICA and Morgan -v- Staffordshire University [2002] IRLR 190).

Looking at all of the evidence, the tribunal concludes that at the time of termination of employment in April 2004 the claimant was still continuing to experience significant psychological symptoms, where the diagnosis seems to have been accepted by the various medical practitioners as being PTSD. The tribunal regards that as being an illness falling within the definition in that regard on foot of DDA 1995. The tribunal therefore concludes that at the material time, April 2004, the claimant was a person with a disability in that, on balance, he was suffering from a mental disorder, PTSD, which medical condition being by its nature a mental impairment had not at that time substantially resolved. Further, applying the remainder of the tests stated in Goodwin, the tribunal determines from the evidence that the impairment did affect the claimant's ability to carry out normal day-to-day activities in the stated respects, that is to say mobility and concentration, and did have an adverse effect which was substantial and long-term. The tribunal's conclusions in this regard are supported both by the evidence of the claimant and also by the oral and documentary evidence of the medical practitioners and the tribunal has taken account of the Guidance in that regard (C14 and C20 especially). Whilst the physical effects of the injuries as regards mobility had substantially improved by April 2004, it appears that the psychological aspects of the injury were still having a substantial effect on both concentration and mobility by mid-April 2004. To take one example at mid-April 2004, the claimant was still sufficiently unwell that he was being prescribed Dothiepin at an increased dosage (150 mg increased to 225 mg nightly) by Doctor Oliphant on 15 April 2004 and the Doctor wished to review him further in three months' time. He was withdrawn socially and his life was very much curtailed; he had flashbacks, nightmares, anxiety, sleep disturbance and other symptoms of continuing illness.

What then did the respondent know of all this, or what knowledge is to be imputed? An employer does not have to be subjectively aware of an employee's disability in order to be liable under DDA 1995. In that regard, the cases of Clark v TDG t/a Novacold [1999] IRLR 318, London Borough of Hammersmith & Fulham v Farnsworth [2000] IRLR 691 and HJ Heinz Co Ltd v Kenrick [2000] IRLR 144 are relevant. For example, in Clark v TDG t/a Novacold Mr Clark was dismissed because he was absent from work. The fact that his employer might not have known that the reason for his absence was a reason related to disability was neither here nor there; Mr Clarke merely had to prove the causal link between the treatment afforded and the disability in order to succeed and it would have not been necessary for him additionally to prove that the employer was subjectively aware of the fact of the disability. That latter issue of knowledge was specifically addressed in London Borough of Hammersmith & Fulham v Farnsworth where the EAT held that the approach taken by the Court of Appeal in Clark v TDG t/a Novacold was that knowledge of the disability for the purposes of DDA 1995 was not relevant; this was also the approach adopted in HJ Heinz Co Ltd v Kenrick. In that case Mr Kenrick was dismissed following absence. At the date of his dismissal, the employer's medical adviser had knowledge of Mr Kendrick's symptoms, but without any specific diagnosis. A decision was made to dismiss Mr Kendrick as he was apparently unfit for work and there was no estimate as to when he was likely to be able to return. The EAT held that there was no language in DDA 1995 that requires that the relationship between the disability and treatment ought to be judged subjectively through the eyes of the employer. The applicable test should be the objective one: whether the relationship exists between disability and treatment, not whether the employer knew of it. Further to that, knowledge may be imputed to an employer where there was evidence before it which would have put the employer on notice of disability (see for example Edgeworthy v South Devon Ltd [2003] EAT/0867/03 where the EAT held that knowledge was to be imputed where there was information from the claimant's GP, knowledge of the claimant's heart attack and his absence from work for a number of months due to coronary problems, and the fact that the employer's HR officer was alert to the possibility that the claimant was disabled). Knowledge may be gained through employees or agents of the employer, for instance knowledge may be gained from an Occupational Health adviser retained by the employer.

On the facts of the instant case the respondent kept in regular contact with the claimant throughout the period of his illness. This appears to have been initially on account of concern for the claimant's welfare (this was an industrial injury sustained) and then, as time went on, with a view to ascertaining when the claimant would be able to return to employment. As mentioned, the respondent retained the services of Dr Fawcett, initially, and thereafter Dr Martin Tohill, as Occupational Health Physician, to ascertain information concerning the progress of the claimant's recovery. Dr Martin Tohill was in contact with Dr John Tohill and sought information. Dr John Tohill, in turn, was supplied with information regarding the progress of recovery from the psychological injuries by Dr Christine Kennedy (and by Dr Oliphant, Dr Kennedy's SHO). In respect of the claimant's absence from work, medical certificates were filed throughout that period. It is stated, apart from the physical symptoms, that the claimant was suffering from, "depression". In addition to the foregoing, Mr Johnston, Operations Manager for the respondent, arranged to meet with the claimant in January 2004 to discuss a possible return to work and the claimant relayed his various difficulties to Mr Johnston.

Dealing with the continence issue first, in only one of the medical reports, that being the report of Dr John Tohill dated 11 December 2003, is continence mentioned as an issue. That 11 December 2003 report was addressed to Dr Martin Tohill. However, from a careful reading of the wording of the report, the tribunal believes that the most probable construction placed on that by Dr Martin Tohill would be that there was no continence issue affecting the claimant by December 2003. Further to that, the tribunal is reasonably certain that the claimant did not ever expressly raise himself the issue of continence with the respondent. The tribunal therefore concludes that the respondent had very probably no knowledge whatsoever of any continence issue at the material time.

Turning then to the issue of the claimant's mobility and any other physical symptoms of continuing illness, Dr John Tohill's report of 11 December 2003 "flags" a mobility issue; the claimant is recorded as only being able to walk about 20 yards. Further to that, the tribunal had sight of various reports directed from Dr John Tohill to Social Security for benefits purposes. Therein, Dr John Tohill records at 10 January 2004 that the claimant could walk 300 yards, 70% of normal rate and with a "mild limp". However, by 23 January 2004 it is recorded by Dr John Tohill that the claimant walks "two miles per day". In her report of 19 February 2004, Dr Christine Kennedy states that the claimant walks "a half mile per day". The Council did receive a report from Dr Martin Tohill dated 16 January 2004 which stated that the claimant had almost fully recovered physically. Whilst Dr John Tohill in his oral evidence disputed that there had been an "almost full recovery" in reference to April 2004, the tribunal believes that it was perhaps reasonable for the respondent to have concluded that by April 2004 the claimant had substantially recovered physically (and of course the respondent was quite unaware of the continence issue).

Turning then to the issue of psychological injury or illness, Dr Kennedy in her report dated 27 October 2003 states, "one year on he is still quite disabled". She suggests that a diagnosis of "probably PTSD" is appropriate. Certainly the respondent would have been aware that for a period in excess of one year the claimant had suffered from a significant psychological injury. The report dated 6 December 2003 from Dr Martin Tohill to the respondent seems not to dispute that the claimant had significant psychological symptoms (PTSD). The report dated 11 December 2003 from Dr John Tohill states unambiguously that the claimant had PTSD. A report dated 10 January 2004 from Dr John Tohill to the DHSS states "PTSD symptoms still present". The report dated 16 January 2004 from Dr Martin Tohill to the respondent states that the psychological symptoms were continuing; thus the respondent was again expressly alerted to the issue. The report of 19 February 2004 from Dr Kennedy comments about the claimant's ongoing psychological difficulties in February 2004. Finally, the report of 5 April 2004 that was certainly seen by the respondent (as it was attached to the letter from the claimant to Mr McLaughlin) has Dr John Tohill stating expressly that the ongoing symptoms, "both physical and mental", were continuing.

From all this, the tribunal concludes that the respondent in April 2004 was fully aware that the claimant was suffering from an ongoing medical condition which related to PTSD. As mentioned above, the test is objective. In any event, looking at the facts, the tribunal is able to conclude with some degree of certainty that the respondent knew of itself and also through its advisor Dr Martin Tohill that the claimant, in April 2004, had a significant psychological difficulty in the nature of a mental impairment. That mental impairment, being in its nature substantial and having a long-term adverse effect on the claimant's ability to carry out normal day-to-day activities, would thus potentially have brought the claimant within the definition of a person with a disability under DDA 1995. Such an impairment would of course trigger the statutory duty under Section 6 of DDA 1995 to make reasonable adjustments.

Mr Johnston explained to the tribunal, and the tribunal has no doubt, that the respondent regarded it as an issue of considerable general importance to deal with sickness absence. Whilst the respondent's sick pay regime meant that sick pay was exhausted after 12 months' absence, Mr Johnston endeavoured to explain to the tribunal that there were other difficulties, "operational difficulties" as he referred to these, as a result of the claimant's continued absence from work. In the course of the meeting which took place on 22 January 2004 between Mr Johnston and the claimant (the claimant being represented by Mr Marshall, with Mrs Wilson taking notes), the claimant stated that he hoped to be back at work at the end of March or early April. Mr Johnston stated that he might not have the option to wait 18 months. He explained that he had, over the past number of months, been dealing with all employees who had been off on long-term sickness as a result of a decision taken by the respondent. Mr Johnston alluded to the report from Dr Martin Tohill that the claimant had some ongoing chest symptoms and that the main ongoing medical problem was a psychological reaction to the accident. The claimant provided further details to Mr Johnston stating, amongst other matters, that he got nightmares and could not sleep.

The Tribunal has noted the contents of the minutes of the 22 January 2004 meeting which were, to a large extent, non-contentious. However, there was one particular point in the discussions which was evidentially contentious. That particular issue of contention relates directly to the issue of reasonable adjustments. The Code of Practice provides guidance to employers in the area of reasonable adjustments. The primary objective of any adjustment should, wherever possible, be to enable the disabled employee to continue in his or her present job. The employers should consult with the disabled employee at appropriate stages about what his or her needs are and what the effect the disability may have on future employment. Where appropriate, employers should consider seeking expert advice on the extent of the disabled employee's capabilities, adjustments that could be needed, or in the case of absence from work, the prospects for a phased return. Where no reasonable adjustments will enable an employee to return to an existing post, an employer must consider whether there are any suitable positions to which the employee could be re-deployed.

In the course of the 22 January 2008 meeting, after an initial discussion about the possibility of the claimant being able to return to work if another area of work could be arranged for him, Mr Johnston referred to litter-picking or grass cutting as a possible option. However, the claimant stated that he did not have the energy to do that at that moment. Then the possibility of working in the tunnels at the nursery was discussed, or work at skip sites. It then appears that Mr Johnston asked the claimant what type of work the claimant had in mind and the claimant enquired about working with plants (it seems that one of the claimant's interests was gardening). In his evidence to the tribunal, Mr Johnston maintained that he had carried out a detailed demonstration of the work involved with 'pricking plants'. However, nowhere in the meeting notes, which were stated by Mrs Wilson in her evidence to be a detailed record, is that demonstration recorded. The claimant maintained steadfastly that Mr Johnston had not discussed in any detail this type of light horticultural work. The claimant contended that Mr Johnson certainly had not made any suggestion or offer of light horticultural work of this type to him at that meeting.

Irrespective of whether or not this type of light horticultural work was discussed and explained or demonstrated in some detail by Mr Johnston, the fact remains that Mr Johnston did not make any specific offer of such light horticultural work, which possible suggestion or offer might then perhaps have been followed up by the respondent exploring that possibility further with Dr Martin Tohill as regards whether or not the claimant would have been physically capable of such light work at that time. Indeed, in that January meeting soon thereafter Mr Johnston put it to the claimant that the claimant was being put on notice that if at the end of March he had not returned to work he would be in a 'certain amount of difficulty', as it was put.

Mr Johnston's attitude at that meeting seems to have caused some upset to the claimant. In early April when Mr Johnston again requested a meeting with the claimant, scheduled for 9 April 2004, the claimant wrote a letter dated 7 April 2004 to the respondent's Chief Executive, Mr McLaughlin, referring to the meeting of 22 January 2004 and stating that he felt very annoyed by Mr Johnston's attitude towards his illness. Further, the claimant enclosed with his letter the letter from Dr John Tohill dated 5 April 2004. Mr McLaughlin did not reply to the claimant's letter of 7 April 2004; when questioned as to why that was the case in the course of the tribunal hearing, Mr McLaughlin stated that his non-reply was due to "an oversight". However, the submission was made on behalf of the claimant that this letter from the claimant ought properly to have been regarded as a grievance complaint by the claimant against Mr Johnston. Clearly, it was not treated as such by Mr McLaughlin. Mr McLaughlin gave the letter from Dr John Tohill to Mr Johnston.

Mr McLaughlin did not become further directly involved at that stage. The meeting was re-scheduled and proceeded, attended by the claimant and Mr Johnston and by Mr Marshall and Mrs Wilson, on 15 April 2004. At this meeting the claimant informed Mr Johnston that it might be June or July before he would be fit; he was still seeing a lot of doctors and his medication had been increased again. Mr Johnston informed the claimant that there had come a point when the claimant's absence from work had to be treated an "an employment issue". It is stated that it had been his intention to ascertain the claimant's current position. However, the claimant's Doctor's letter dated 5 April 2004 explained the position, as Mr Johnston saw it. Mr Johnston apparently quoted from the Doctor's letter the expressed opinion that the claimant would not be fit for the next three months at least. Mr Johnston stated that it was therefore to be concluded that the claimant would not be able to return to work for the foreseeable future. It is to be noted that, for the claimant in submissions, Mr Hamill has stated that Mr Johnston was quite wrong to draw that conclusion. The claimant stated that his Doctor had said that he was not fit and Mr Marshall also emphasised that fact. Mr Johnston then proceeded to refer to a number of 'false dawns', as he put it, for the claimant's return to work. He advised the claimant that in these circumstances he had no alternative but to terminate the employment. The claimant was to be dismissed with eight weeks' pay in lieu of notice, commencing 19 April 2004. The claimant was advised of his right of appeal.

In conducting the meeting in this fashion, Mr Johnston, who was quite aware that the claimant was suffering from a significant ongoing mental impairment which, as the tribunal has now concluded, fell within the protection afforded by DDA 1995, had no regard to the possibility that the claimant might be disabled. For the claimant in submissions, Mr Hamill has put it to the tribunal that Mr Johnston was either incompetent or he deliberately chose to ignore the possibility that the claimant might be disabled. Rather, Mr Johnson preferred to treat the matter as merely an "an employment issue" relating to long-term sickness. In doing so, he entirely appears to have disregarded the material provisions of DDA 1995. These oblige any employer in the position of this respondent to consider the matter of reasonable adjustments under Section 6 of DDA 1995. A number of options would have been open to the respondent in that regard. Section 6 (3) of DDA 1995 provides examples of steps which an employer may have to take in relation to a disabled person in order to comply with the Section 6 (1) duty. These steps that are possibly material to this case include: allocating some of the disabled person's duties to another person, transferring him to fill an existing vacancy, altering his working hours, assigning him to a different place of work, allowing him to be absent during working hours for rehabilitation, assessment or treatment, and perhaps other possibilities. Section 6 (4) of DDA 1995 provides that in determining whether it is reasonable for an employer to have to take a particular step in order to comply with Section 6(1), regard shall be had in particular to the extent to which taking the step would prevent the effect in question, the extent to which it is practicable for the employer to take the step, the financial and other costs which would be incurred by the employer in taking the step and the extent to which taking it would disrupt his activities, amongst other matters. Further to this, the Code of Practice is material. Whilst not legally binding, nonetheless the Code gives useful guidance on steps that might be taken by employers. For example, following the suggestions contained in the Code, the respondent might have considered obtaining further medical evidence either from the claimant's GP or from the respondent's own medical adviser, Dr Martin Tohill, or indeed from any other appropriate source concerning a phased return to work with appropriate light duties and/or an adjustment to working hours. In acting as he did, Mr Johnston disregarded any obligation on the part of the respondent fully to consider the issue of reasonable adjustments under Section 6 of DDA 1995.

Mr Johnson, in dismissing the claimant from employment, acted in a manner which accorded detrimental treatment to the claimant directly on account of the claimant's disability. That was the reason for the treatment. (In Clark v TDG t/a Novacold the Court of Appeal observed that, "the definition of discrimination in the 1995 Act does not contain an express provision requiring a comparison of the cases of different persons in the same, or not materially different, circumstances. The statutory focus is narrower: it is on the "reason" for the treatment of the disabled employee and the comparison to be made is with the treatment of "others to whom that reason does not or would not apply"). Thus dismissal was held to be an act of discrimination under DDA 1995. Mr Clark was treated less favourably than those who were at work (it mattered not that an employee who was absent for a non-disability reason would also have been dismissed). The dismissal was for a reason related to the disability. Thus Mr Johnston acted, in dismissing the claimant, in direct contravention of Section 4 (2)(d) of DDA 1995.

The claimant appealed to Mr J A McLaughlin The appeal hearing took place on 23 April 2004. It must be said that the tribunal found the oral evidence of Mr McLaughlin to the tribunal to be unsatisfactory in a number of respects. In submissions, Mr Hamill for the claimant observed that Mr McLaughlin was "hopelessly unprepared" for the appeal hearing. In the course of the appeal hearing on 23 April 2004 the claimant stated to Mr McLaughlin that he suffered loss of breath because of damage to his lung and he was taking an inhaler to help with breathing difficulties and that he was also taking tablets for stress. The claimant further stated that he was seeing a Mental Health Doctor in Cookstown because he was suffering from 'flash backs'. He was also attending his own Social Worker in Dungannon once a fortnight (a probable reference to the counselling sessions). In response to a question from Mr McLaughlin as to what the opinion of the Mental Health Doctor was, the claimant stated that he was still not sleeping well and was taking a sleeping tablet. The Doctor wanted to take him off the sleeping tablet and to increase his stress tablets over the next month or so and wanted to see him again in six weeks time. Mr McLaughlin appears to have made no specific response to this information but instead concluded the meeting with the statement that he would consult the report provided by the Council's Occupational Health Adviser and take legal advice.

Looking at the conduct of the appeal in its entirety, the involvement of the Chief Executive in the appeal function was what can best perhaps be described as surprisingly light-handed. It is clear that Mr McLaughlin did not in any manner appear to admit the possibility that the claimant might have been suffering from a physical or mental disability at the time which would have triggered the protection afforded under DDA 1995. He did not explore further with the claimant the full nature and extent of the physical or psychological issues which the claimant had clearly and expressly brought to his attention at the meeting. He did not explore at the meeting or indeed thereafter whether or not there might have been any duty to make reasonable adjustments on foot of DDA 1995. He did not appear to cause further enquiries to be made as to the nature and extent of the "operational difficulties" which were the stated cause of the claimant having to be dismissed nor did Mr McLaughlin enquire if there was any means by which such stated operational difficulties might have been otherwise addressed without the dismissal of the claimant. The possibility of endeavouring to keep open the claimant's job ("holding down a slot" as Mr McLaughlin put it) or redeploying the claimant to appropriate alternative work, after any necessary further medical investigation concerning the claimant's capacity to carry out alternative work, does not appear to have been in any manner explored by Mr McLaughlin either at the meeting or as any part of the appeal process.

The issue of course is whether the dismissal, being a discriminatory act under Section 5 (1) (a) of DDA 1995 can be justified under Section 5(1) (b). The tribunal has not recorded any submissions upon conclusion of the case from the respondent's representative in that regard. In order to succeed in that defence, the employer must have complied with any applicable duty to make reasonable adjustments. Whilst the law does not oblige an employer of a disabled employee to keep open a job indefinitely, nonetheless there must be a genuine and proper exploration of reasonable adjustment possibilities. A failure to make reasonable adjustments would amount to direct discrimination under Section 6 of DDA 1995. In somewhat similar circumstances to the instant case, in Clark v TDG t/a Novacold, Mr Clark had, like the claimant, being absent from work due to injury for a number of months and had exhausted the employer's sick pay. Two medical reports were obtained one of which suggested that the injury would improve over a period of 12 months but was unable to give a date when it would be possible for Mr Clark to return to work. The employer dismissed Mr Clark because he was no longer capable of performing the main functions of his job. The employer in Clark v TDG t/a Novacold contended that it had waited a reasonable period of time to see if Mr Clark's condition had improved and that full consideration had been given to alternative employment, but that no suitable vacancies were identified. In Clark v TDG t/a Novacold the Court of Appeal observed in respect of justification that the Code of Practice provisions (part of which had been apparently overlooked by the tribunal in that case at first instance) did provide a material provision:-

"The tribunal appears to have overlooked a relevant provision in the Code. Paragraph 6.21 of the Code is headed "Termination of Employment." It provides-

"Dismissal-including compulsory early retirement-of a disabled person for a reason relating to the disability would need to be justified and the reason for it would have to be one which could not be removed by any reasonable adjustment. It would be justifiable to terminate the employment of an employee whose disability makes it impossible for him any longer to perform the main functions of his job, if an adjustment such as a move to a vacant post elsewhere in the business is not practicable or otherwise not reasonable for the employer to make."

However, on the facts of this case, the tribunal is not satisfied that an adjustment such as a move to a vacant post elsewhere in the respondent's workforce was not practicable or otherwise not reasonable for the respondent to make. There had been the beginnings of some rather tentative exploration of that in the course of the January 2004 meeting. However nothing further came of that. The responsibility rested upon the respondent, not the claimant. That does not appear to have been recognised. On the facts neither Mr Johnston nor Mr McLaughlin conscientiously explored that or applied their minds actively to that possibility.