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Cite as: [2008] NIIT 213_5IT, [2008] NIIT 213_05IT

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Brannigan v Blinds Direct Ltd [2008] NIIT 213_05IT (21 February 2008)

THE INDUSTRIAL TRIBUNALS

CASE REF: 213/05

CLAIMANT: Rory Brannigan

RESPONDENT: Blinds Direct Ltd

DECISION ON A PRE-HEARING REVIEW

The decision of the tribunal is that the claimant has a disability within the meaning of section 1 of the Disability Discrimination Act 1995.

Constitution of Tribunal:

Chairman (Sitting Alone): Mr I Wimpress

Appearances:

The claimant was represented by Mr David Dunlop of counsel, instructed by Donnelly & Kinder Solicitors.

The respondent was represented by Mr Patrick Moore of Peninsula Business Services Ltd.

THE ISSUE

The pre-hearing review was arranged to determine the following issue:

Whether the claimant has a disability within the meaning of Section 1 of the

Disability Discrimination Act 1995.

SOURCES OF EVIDENCE

The tribunal received by agreement a bundle containing, amongst other things, the claim and response, the medical evidence and the Guidance issued by the Secretary of State under Section 3 of the Disability Discrimination Act 1995. The tribunal heard evidence from the claimant and the owner of the respondent business Mr Hogg. The tribunal also had the benefit of helpful oral submissions from the claimant's counsel and from the respondent's representative.

THE LAW

Section 1(1) of the Disability Discrimination Act 1995 provides:

"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."

Paragraph 2(1) of Schedule 1 provides:

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.

Paragraph 4(1) of Schedule 4 to the Act provides:

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

This definition is expressly made the subject of the provisions contained in Schedules 1 and 2 to the Disability Discrimination Act 1995 and is supplemented by Regulations and Guidance issued by the Secretary of State under section 3 of the Act. In the course of submissions reference was made to certain paragraphs contained in the 2006 Guidance but I am satisfied that in the present case the Guidance issued in 1996 is applicable. The relevant paragraphs in the 1996 Guidance are appended to this decision.

5. In Goodwin v The Patent Office [1999] IRLR 4, the Employment Appeal Tribunal held that section 1 of the Act requires the tribunal to examine the evidence with reference to four conditions:-

1. Does the claimant have an impairment which is either mental of physical?

2. Does the impairment affect the claimant's ability to carry out normal day-to-day activities in one of the respects set in paragraph 4(1) of the Schedule 1 to the Act, and does it have an adverse effect?

3. Is the adverse effect upon the claimant's ability substantial?

4. Is the adverse effect upon the claimant's ability long-term?

At a Case Management Discussion on 20 November 2007, the respondent's representative accepted that the claimant had a physical impairment and the hearing therefore focussed on whether or not the remaining three conditions were fulfilled.

THE FACTS

6. The claimant was employed by the respondent as a workshop supervisor from 9 March 1999 until 21 December 2004 when he resigned. On 17 January 2005, the claimant brought proceedings against the respondent claiming constructive dismissal. The claimant was later permitted to amend the proceedings to include a claim of disability discrimination as a result of a decision by a tribunal following a previous Pre-Hearing Review.

7. The principal medical evidence relied upon by the claimant was a report by Mr N S Simpson, Consultant Orthopaedic and Trauma Surgeon dated 17 December 2004. This was supplemented by an MRI scan and report by Dr Arthur C. Grey dated 2 June 2005 and a further brief report and letter from Mr Simpson dated 31 August 2005 and 10 November 2005 respectively. Mr Simpson diagnosed the claimant as suffering from a rotator cuff impingement syndrome possibly as a result of degeneration in the right acromioclavicular joint or as a result of a partial injury to the right sided rotator cuff tendon (or a combination of both). The MRI scan revealed degenerative arthritis in the acromioclavicular joint or the right shoulder with subsequent impingement upon the supra-spinatus muscle tendon and a possible tear of the supra-spinatus muscle tendon. This diagnosis was not disputed by the respondent. Mr Simpson considered that repetitive manual work may have rendered the symptoms associated with this arthritic condition more pronounced. The tribunal was informed that the claimant's condition is the subject of separate legal proceedings.

8. The claimant is right handed and first experienced discomfort in the area of his neck and right shoulder in the summer of 2002. The claimant attended with his general practitioner in April 2003 with pain in his right shoulder. The claimant also received treatment from an osteopath, Mr W. Ivan Bell, on seven occasions in 2003 and his condition improved as a result of this treatment for a period. Thereafter the claimant returned to manual physical duties at work and this unfortunately resulted in a deterioration in the claimant's condition in late 2003. The claimant was prescribed painkillers by his general practitioner and re-attended with his osteopath. According to Mr Simpson's report the combination of treatment by the osteopath and painkillers appeared to improve the claimant's shoulder condition. In addition, the claimant also sought treatment from a physiotherapist, Maura Fisher, in March 2004. The claimant attended approximately nine to ten sessions and this also improved his condition. Ms Fisher provided a discharge report to the claimant on 6 July 2004 which indicated that he had made a full recovery. The claimant gave evidence that Ms Fisher told him that she had done all that she could with him and provided him with an exercise regime. In any event, as appears from Mr Simpson's report, the claimant's condition worsened again towards the end of 2004. The claimant was treated for his aliment with anti inflammatory drugs. In addition the claimant was advised to rest his arm. The claimant was not advised to place his arm in a sling and was not given isotonic weight exercises to do. In early 2005 the claimant's work transferred to a different building with the products elevated up to four metres in height and this change exacerbated the his symptoms. According to Mr Simpson, although the claimant's symptoms fluctuated between March 2003 and June 2005 he suffered from those symptoms throughout that period.

9. The claimant's injury affects his ability to lift objects around the house and when he does so he experiences severe discomfort in his right hand and shoulder and tingling in his arms and shoulder. He has problems sleeping, lying comfortably in bed and showering. If the claimant puts his right hand above his head in order to wash his hair when showering this also causes discomfort. The claimant experienced tingling in his fingers when washing his teeth. Lifting a kettle also caused discomfort and tingling. Similarly lifting an object out of the cupboard such as a tin of beans would cause him discomfort. Although the claimant would assist his wife in carrying shopping bags this would always led to discomfort. In addition he was unable to lift his young child onto his right shoulder. The discomfort in the claimant's right shoulder also stopped him from playing basketball with his children. At night the claimant would wake up in bed with his right arm numb down to his fingers no matter what sleeping position he adopted. The claimant was unable to use his mobile phone with his right hand and or rest his right arm on a chair when watching television. The claimant suffered severe discomfort when changing light bulbs and was unable to engage in any do-it-yourself activities or painting and decorating. In terms of what might be described as heavier duties, the claimant was unable to move furniture or heavy appliances about the family home. The claimant was unable to lift the rear basket from his lawnmower or cut hedges in his garden. The claimant was also unable to participate in is swimming as it involves rotation of the arm. The claimant had no pretensions as to his ability as a swimmer but did enjoy it as a leisure activity on holiday and at the local swimming pool with his young son. The claimant also had difficulty with driving. He would tend to rest his right arm on the door ledge as he had difficulty in resting it on the steering wheel and is unable to keep his hand in the standard "ten to two" position. The claimant would tend to use his left hand to steer the vehicle although he would maintain a firm grip with his right hand when changing gears and so forth. He would not suffer discomfort opening a heavy door such as a fire door but would avoid using trays in cafeteria or coffee shops.

10. At work, the claimant operated from a bench and used pneumatic hoists in order the move blinds above head height. The claimant was able to cord a blind as it could be manoeuvred into a comfortable position for him using an electric or pneumatic hoist. Mr Hogg regarded cording the blinds as lighter work as it did not involve lifting. The claimant was also able to lift heavy cartons by keeping them close to his body and did not need to move them above head height.

11. Part of the claimant's job involved unloading lorries with rolls of material that are used to make up blinds. He performed this task at least every other day and boxes were quite heavy. It was unnecessary however to raise the boxes above shoulder height as they could easily be slid off the lorry. The rolls are bulky and awkward to manoeuvre and the boxes could weigh between 25 and 30 kilograms depending on the size of the order. According to Mr Hogg the claimant never suggested that he had any problems with lifting cartons or boxes prior to September 2004 when he indicated that he had a problem because of his shoulder.

12. The claimant fitted blinds on a regular basis until March 2004. Sometimes he would perform these duties on his own and other occasions he would have a helper with him. The claimant gave evidence that when fitting blinds he was able to avoid holding a drill at an angle higher than 90 degrees by using a small set of steps or a stepladder. Mr Hogg suggested that it would not be necessary for the claimant to move his hand above a 90 degree angle when fitting blinds and that a right handed fitter, such as the claimant, would usually use his left hand at a higher level in order to guide the top of the drill. Mr Hogg did not accept that drilling holes even into reinforced concrete would be tiring.

13. On 23 March 2004, Ms Fisher wrote to the claimant's general practitioner, Dr Poland, and advised that the claimant should avoid particular working positions. In particular, she advised that he should stop lifting the drill used for fitting blinds above his head and putting pressure on his shoulder. This advice was passed on to the respondent and as a result the claimant was no longer required to fit blinds and resumed his supervisory duties. Although it was suggested to the claimant that he was involved in the fitting of blinds in the late summer of 2004, I am satisfied on the basis of both the claimant's evidence and that of Mr Hogg that this was confined to carrying materials into the house and distributing bags of screws while Mr Hogg performed the drilling in the course of a job in Ballynahinch.

14. Mr Hogg agreed that the claimant's physical condition improved once he stopped fitting blinds. The claimant told Mr Hogg that he used his left hand to compensate the difficulties he encountered when using his right hand. Mr Hogg agreed that the movements involved in drilling a hole for a blind would be similar to terms of elevating ones shoulders as the household activities performed by the claimant.

15. It was apparent from the evidence that the claimant engaged in a number of other activities which might suggest that his injury was not as severe as he made out. In addition to his dwelling house the claimant also owns a farm where he raises beef cattle. Due to his condition the claimant avoids any manual handling in relation to his livestock and employs a veterinary surgeon to remove the corns of his cattle and is assisted by his son, a part-time employee and his uncle who together do most of the physical work on the farm. It was suggested to the claimant that he was able to feed his herd of cattle without undue discomfort. The claimant described how he fed the cattle during the winter with pellets dispensed from a hopper in the outhouse where the cattle were fed. Although the buckets would each have weighed 25 kilograms this did not cause the claimant any difficulty as he did not require raising the buckets above head height in order to empty their contents into the feeding trough.

16. Mr Hogg also gave evidence that he observed the claimant loading a large number of tractor tyres onto a trailer. However, when this incident was closely examined it became clear that Mr Hogg's observations in relation to the number and types of tyres involved were not entirely reliable and I am satisfied that the claimant managed to accomplish this task by prising the tyres up at one end and rolling them onto the trailer. Mr Hogg also observed the claimant using his mobile phone on a regular basis. However, the claimant did not seek to suggest that he was unable to use a mobile phone but rather that he had difficulty using it with his right hand.

17. The claimant was able to drive a mechanised vehicle known as a loading shovel but there was nothing to suggest that this would have caused him any discomfort. Furthermore, since leaving the respondent's employment the claimant has engaged in training forklift drivers but I am satisfied from the claimant's description of operating a forklift truck that this would not have had any impact on his right shoulder.

THE PARTIES' SUBMISSIONS

18. As indicated above, it was not disputed by the respondent that the claimant suffered from a physical impairment at the relevant time and the focus of both the submissions and the evidence was whether that impairment had a substantial and long-term adverse effect on the claimant's ability to carry out normal day-to-day activities.

19. Mr Dunlop on behalf of the claimant submitted that the only real issue was whether the claimant's symptoms had a substantial impact between March 2003 and June 2005. As to whether the claimant's condition was long-term Mr Dunlop submitted that if it was accepted that the impairment was substantial then there should not be any difficulty in determining it lasted at least 12 months in view of the medical evidence that the duration of the condition was some two years and three months. Mr Dunlop submitted that the condition was not fleeting and drew attention to the claimant's attendances with his general practitioner in early to mid 2003, the ongoing treatment with an osteopath in March 2004 and his physiotherapy treatment. Although the claimant attended with Mr Simpson for medical/legal reasons Mr Dunlop submitted that Mr Simpson's report was important in terms of credibility in that it provided clear clinical findings as to the claimant's impairment which were not disputed by the respondent. Mr Dunlop placed reliance on paragraph A1 of the Guidance which makes clear that substantial means more than minor or trivial and submitted that as the claimant's shoulder injury was clearly more than minor and trivial and therefore must be classified as substantial. Mr Dunlop submitted that the impact of the impairment on day-to-day activities must be viewed in terms of paragraph 4(1) to Schedule 1 of the Act and section C of the Guidance. Mr Dunlop helpfully confined his submissions to the effect that only one of these items was relevant namely the ability to lift, carry or otherwise move everyday objects. Mr Dunlop also drew attention to the status and purpose of the Guidance and the requirement that the tribunal must take into account any aspect of the Guidance that appears to it to be relevant. Mr Dunlop further submitted that the examples given in paragraph C18 of the Guidance do not constitute a comprehensive list of activities but rather are merely examples.

20. Mr Dunlop submitted that the claimant's condition did not impact on his ability to lift items of a certain weight if presented in a certain way. Therefore he was able to lift factory items off a flatbed lorry. However as Mr Dunlop pointed out work related examples do not provide any assistance other than as to assess the credibility of the claimant. Mr Dunlop submitted that it was wrong to focus on tasks that the claimant could perform at work and that the emphasis should be on whether the claimant could undertake normal day-to-day activities. It was therefore not helpful to concentrate on tasks such as lifting tyres, loading lorries and driving forklifts. Furthermore, carrying meal in buckets and loading tyres onto trailers are peculiar tasks and cannot be regarded as normal day to day activities. According to Mr Dunlop the focus should be on examining domestic activities such as changing light bulbs, lifting a tin of beans down from a cupboard above head height, using a toothbrush or shaving. Even if work related activity is regarded as relevant Mr Dunlop submitted that the claimant has always maintained that fitting blinds in the workplace caused him pain and this is supported by medical evidence. Mr Dunlop also drew attention to paragraph C6 of the Guidance which provides that a qualifying impairment need not prevent a person from carrying out such tasks but it is sufficient to qualify if carrying out those tasks results in pain and fatigue. Mr Dunlop placed reliance on the problems encountered by the claimant with showering which caused him pain and discomfort in his right arm. According to Mr Dunlop if one accepts the evidence of the claimant, which is corroborated by Mr Hogg and objectively confirmed by Mr Simpson and the MRI scan, the claimant did have a condition that is within the meaning of the legislation.

21. Mr Moore, on behalf of the respondent, while accepting the medical evidence in relation to the claimant's condition, sought to characterise the impairment as relatively minor in nature and characterised the claimant's evidence as lacking in credibility and exaggerated. On the one hand the claimant could not lift a toothbrush or shaver without discomfort but did not testify to any discomfort in lifting 25 kilogram weights when feeding cattle. Mr Moore placed emphasis on Ms Fisher's comments that the claimant had made a full recovery and submitted that this demonstrated that the impairment did not have a long-term effect. This submission does not however rest easily with Mr Simpson's report of 17 December 2004 and the advice offered by Ms Fisher and it is clear that the claimant's symptoms flared up again once the physiotherapy had stopped. Moreover when pressed, Mr Moore was obliged to accept that in accordance with paragraphs A11 and A12 of the Guidance such treatment must be disregarded when assessing disability. Mr Moore also drew attention to the claimant's ability to drive a car, a tractor and a loading shovel, demonstrate a forklift and load tyres onto a trailer and load meal for cattle. However as Mr Dunlop pointed out the only lifting exercises in this list was the loading of tyres on the trailer and loading of meal for cattle whereas the claimant's complaint is about normal day to day tasks such as lifting objects of certain heights such as a tin of beans from a cupboard. Moreover, there was considerable doubt as to the reliability of Mr Hogg's observations as to how the claimant went about loading the tyres. Mr Moore submitted that some of these activities undertaken by the claimant were normal day-to-day activities for a farmer but it is clear from the Act and paragraph C3 of the Guidance that work of a particular form does constitute a normal day to day activity. The claimant's evidence that his impairment affected activities such as fitting light bulbs, lifting items down from a cupboard, shaving and brushing ones teeth strike me as typical examples of normal day-to-day activities undertaken by the wider population.

CONCLUSIONS

22. (1) As indicated above, it was not disputed that the claimant had a physical impairment and this is clearly established by the expert medical evidence.

(2) The claimant gave uncontroverted evidence that he has difficulty in undertaking normal day-to-day activities at home and during his leisure time without pain or discomfort. While it might appear incongruous that the claimant appeared to have no difficulty in undertaking what might fairly be described as heavier duties in connection with the running of his farm and at work, I am not persuaded that the claimant's credibility has been undermined to any significant degree. I also take account of the claimant's evidence that he was unable to move furniture or heavy appliances about the family home. While I would not regard this as a normal day-to-day activity, it is consistent with the claimant's evidence on the impact of his impairment on his domestic life. I am therefore satisfied that the impairment had an adverse effect on the claimant's ability to carry out normal day-to-day activities.

(3) I am entirely satisfied that the adverse effect upon the claimant's ability is substantial based on his inability to undertake a wide range of routine domestic tasks and leisure activities without significant pain and discomfort.

(4) As to whether or not the claimant's condition is long-term, I am satisfied on the basis of the expert medical evidence that the claimant suffered from the symptoms flowing from the impairment for approximately two years and three months a period which comfortably exceeds the twelve month period referred to in the Act. This was not a recurring condition, but rather one that was controlled to a greater or lesser extent from time to time by treatment from the claimant's physiotherapist and osteopath together with painkillers. I am therefore satisfied that the adverse effect upon the claimant's ability is long-term.

23. In view of these conclusions, it is clear that the claimant suffered from a disability at the material time within the meaning of section 1 of the Disability Discrimination Act 1995 and the case will therefore proceed to a full hearing.

Chairman:

Date and place of hearing: 22 November 2007, Belfast

Date decision recorded in register and issued to parties:

A Substantial

Meaning of "substantial" adverse effect

A1. The requirement that an adverse effect be substantial reflects the general understanding of "disability" as a limitation going beyond the normal differences in ability which may exist among people. A "substantial" effect is more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects. A "substantial" effect is one which is more than "minor" or "trivial".

A11. The Act provides that where an impairment is being treated or corrected the impairment is to be treated as having the effect it would have without the measures in question (Sch1, Para 6(1)). The Act states that the treatment or correction measures to be disregarded for these purposes include medical treatment and the use of a prosthesis or other aid (Sch1, Para 6(2)).

A12. This applies even if the measures result in the effects being completely under control or not at all apparent.

B Long term

Meaning of long-term effects

B1. The Act states that, for the purpose of deciding whether a person is disabled, a long-term effect of an impairment is one:

· which has lasted at least twelve months; or

· where the total period for which it lasts, from the time of the first onset, is likely to be at least twelve months; or

· which is likely to last for the rest of the life of the person affected (Sch1, Para 2).

For the purpose of deciding whether a person has had a disability in the past, a long-term effect of an impairment is one which lasted at least 12 months (Sch2, Para 5).

Recurring effects

B3. The Act states that if an impairment has had a substantial adverse effect on a person's ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur; that is, it is more likely than not that the effect will recur. (In deciding whether a person has had a disability in the past, the question is whether a substantial adverse effect has in fact recurred.) Conditions which recur only sporadically or for short periods (e.g. epilepsy) can still qualify. (Sch1, Para 2(2), Sch2, Para 5). Regulations specifically exclude seasonal allergic rhinitis (e.g. hayfever) from this category, except where it aggravates the effects of an existing condition (Definition Regulations).

B5. Likelihood of recurrence should be considered taking all the circumstances of the case into account. This should include what the person could reasonably be expected to do to prevent the recurrence; for example, the person might reasonably be expected to take action which prevents the impairment from having such effects (e.g. avoiding substances to which he or she is allergic). This may be unreasonably difficult with some substances. In addition, it is possible that the way in which a person can control or cope with the effects of a condition may not always be successful because, for example, a routine is not followed or the person is in an unfamiliar environment. If there is an increased likelihood that the control will break down, it will be more likely that there will be a recurrence. That possibility should be taken into account when assessing the likelihood of a recurrence.

Effects of treatment

B6. If medical or other treatment is likely to cure an impairment, so that recurrence of its effects would then be unlikely even if there were no further treatment, this should be taken into consideration when looking at the likelihood of recurrence of those effects. However, as Section A describes, if the treatment simply delays or prevents a recurrence, and a recurrence would be likely if the treatment stopped, then the treatment is to be ignored and the effect is to be regarded as likely to recur.

Meaning of "normal day-to-day activities"

C1. The Act states that an impairment must have a long-term substantial adverse effect on normal day-to-day activities (S1).

C2. The term "normal day-to-day activities" is not intended to include activities which are normal only for a particular person or group of people. Therefore in deciding whether an activity is a "normal day-to-day activity" 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. The examples included in this section give an indication of what are to be taken as normal day-to-day activities.

C4. The Act states that an impairment is only to be treated as affecting the person's ability to carry out normal day-to-day activities if it affects one of the following:

· mobility;

· manual dexterity;

· physical co-ordination;

· continence;

· ability to lift, carry or otherwise move everyday objects;

· speech, hearing or eyesight;

· memory or ability to concentrate, learn or understand; or

· perception of the risk of physical danger (Sch1, Para 4).

C5. In many cases an impairment will adversely affect the person's ability to carry out a range of normal day-to-day activities and it will be obvious that the overall adverse effect is substantial or the effect on at least one normal day-to-day activity is substantial. In such a case it is unnecessary to consider precisely how the person is affected in each of the respects listed in paragraph C4. For example, a person with a clinically well-recognised mental illness may experience an adverse effect on concentration which prevents the person from remembering why he or she is going somewhere; the person would not also have to demonstrate that there was an effect on, say, speech. A person with an impairment which has an adverse effect on sight might be unable to go shopping unassisted; he or she would not also have to demonstrate that there was an effect on, say, mobility.

C6. Many impairments will, by their nature, adversely affect a person directly in one of the respects listed in C4. An impairment may also indirectly affect a person in one or more of these respects, and this should be taken into account when assessing whether the impairment falls within the definition. For example:

· medical advice: where a person has been professionally advised to change, limit or refrain from a normal day-to-day activity on account of an impairment or only do it in a certain way or under certain conditions;

· pain or fatigue: where an impairment causes pain or fatigue in performing normal day-to-day activities, so the person may have the capacity to do something but suffer pain in doing so; or the impairment might make the activity more than usually fatiguing so that the person might not be able to repeat the task over a sustained period of time.

C18. Account should be taken of a person's ability to repeat such functions or, for example, to bear weights over a reasonable period of time. Everyday objects might include such items as books, a kettle of water, bags of shopping, a briefcase, an overnight bag, a chair or other piece of light furniture.

Examples

It would be reasonable to regard as having a substantial adverse effect:

· inability to pick up objects of moderate weight with one hand

· inability to carry a moderately loaded tray steadily.

It would not be reasonable to regard as having a substantial adverse effect:

· inability to carry heavy luggage without assistance;

· inability to move heavy objects without a mechanical aid.