Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2256/14

 

 

 

CLAIMANT: Galvin Duffy

 

 

RESPONDENT: Firstsource Solutions Ltd

 

 

 

DECISION

The unanimous decision of the tribunal is that the claimant was not disabled within the meaning of the Disability Discrimination Act 1995, as amended and therefore his claims before the tribunal are dismissed in their entirety.

 

 

 

Constitution of Tribunal:

Employment Judge: Employment Judge Crothers

Members: Mr M Roddy

Mrs D Adams

 

 

Appearances:

The claimant was represented by Ms Devlin, Barrister-at-Law, instructed by Suzanne Moran Solicitors.

The respondent was represented by Mr Neeson, Barrister-at-Law, instructed by Worthingtons Solicitors.

 

The Claim

 

1.             As appears from the issues set out below, the claimant claimed that he was disabled within the definition contained in the Disability Discrimination Act 1995, as amended, ("the DDA"), and that he was unlawfully discriminated against on the ground of his disability. The respondent contended that the claimant was not disabled within the meaning of the DDA, and otherwise denied his allegations in their entirety. The claimant withdrew his harassment claim under the DDA at a late stage in the tribunal hearing.

 

Issues

 

2.             The relevant issues before the tribunal were as follows:-

 

(i)            Was the claimant a disabled person within the meaning of the DDA as amended?

 

(ii)           If so, has the respondent, on the ground of the claimant's disability, treated him less favourably than they treated or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the claimant?

 

(iii)          Has the respondent for any reason which relates to the claimant's disability treated him less favourably than they treated or would treat others to whom that reason does not or would not apply, and, if so, can the respondent show how that treatment was justified?

 

(iv)          Was the claimant unlawfully discriminated against by being dismissed or subjected to any other detriment contrary to Section 4(2)(d) of the DDA?

 

Sources of Evidence

 

3.             The tribunal heard evidence from the claimant, and on his behalf, from Clara McDaid, James McDaid, Dr John Hill, General Practitioner, and Dr Graham Morrison, Consultation Gastroenterologist. On the respondent's behalf, it heard evidence from Paul Murray, Team Leader, and Ryan Duffy, Human Resources Officer. The tribunal was also assisted by bundles of documentation.

 

Findings of Fact

 

4.             Having considered the evidence insofar as same related to the issues before it, the tribunal made the following findings of fact, on the balance of probabilities:-

 

(i)             The claimant was employed by the respondent as a Customer Services Advisor from 20 March 2014 until the effective date of termination of employment on 29 August 2014. The parties agreed that this was the effective date of termination, albeit the dismissal letter refers to 30 August 2014.

 

(ii)           The claimant had received a written warning on 22 May 2014 for being absent without leave on 27 April 2014. This was not appealed.

 

(iii)          The letter of dismissal dated 3 September 2014, is in the following terms:-

"Dear Galvin

 

Following the disciplinary hearing held on 29 ^th August 2014, I am writing, on behalf of the Company, to confirm the decisions taken that you are hereby dismissed from the company as of 30 ^th August 2014. In arriving at this decision we have taken into account the following points:

 

·          Your level of absence throughout probation period.

 

·          No improvement following your written warning and extension of probation.

 

·          Failure to follow process regarding sicklines despite being made aware of sickline process and AWOL process on first day of induction.

 

Your final payment will provide for any accrued holiday entitlement or any holiday taken in excess of your entitlement for the year to date. These amounts are included in your final salary payment.

 

You have the right of appeal against this decision. If you wish to appeal against this decision you should set out the grounds of appeal in a letter to Elaine Kelly, Operations Manager, within 5 days of receiving this warning.

 

Yours sincerely

 

 

Ryan Duffy

Human Resource Officer

For and on behalf of firstsource"

 

(iv)          The claimant did not appeal his dismissal.

 

(v)           It was agreed that the relevant period for the purposes of the definition of disability and, subject to same, the allegations of unlawful discrimination under the DDA, is between 31 July 2014, when the claimant went home sick with abdominal pains, and the effective date of termination of his employment on 29 August 2014.

 

(vi)          Subject to the definition issue, the parties agreed that the appropriate comparator is a person who is off work with an illness, being of the same role as the claimant and who did not have a disability.

 

The Definition of Disability Issue

 

5. (i) Section 1 of the DDA provides, as follows:-

 

"(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) In this Act 'disabled person' means a person who has a disability."

 

In Goodwin v The Patent Office [1999] IRLR 4, the Employment Appeal Tribunal held that, in assessing the issue of disability, four separate conditions/matters require to be satisfied, namely:-

 

"(1) The impairment condition

 

Does the applicant have an impairment which is either mental or physical?

 

(2) The adverse effect condition

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

 

(3) The substantial condition

 

(4) The long-term condition

 

Is the adverse effect (upon the applicant's ability) long-term?"

 

Schedule 1, Paragraph 4, of the DDA, defines an impairment affecting 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."

 

Paragraph 2 of Schedule 1 states:-

 

"(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;

 

(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."

 

(ii) The tribunal had the benefit of helpful written submissions from both counsel in relation to the definition issue, which are appended to this decision. It was also referred to the relevant authorities to be considered by the tribunal. The tribunal heard further oral submissions from both counsel on the issues on 26 June 2015. The tribunal also took into account Appendix B of the Disability Code of Practice in relation to the definition issue. It is satisfied, in terms of Schedule 1, paragraph 4, of the DDA that the relevant paragraph for consideration for the tribunal is as follows:

 

"(d) Continence"

 

The tribunal took into account paragraph D23 of the guidance under the same heading. This paragraph states:

 

" Continence

 

D23. This covers the ability to control urination and/or defecation. Account should be taken of the frequency and extent of the loss of control.

 

Examples

 

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

 

·                 Infrequent loss of control of the bowels, if it is entirely unpredictable and leads to immediate soiling;

·                 Loss of control of the bladder while asleep at least once a month;

·                 Frequent minor faecal incontinence or frequent minor leakage from the bladder, particularly if it is unpredictable.

A young woman has developed colitis, an inflammatory bowel disease. The condition is a chronic one which is subject to periods of remission and flare-ups. During a flare-up she experiences severe abdominal pain and bouts of diarrhoea. This makes it very difficult for her to travel or go to work as she must ensure she is always close to a lavatory. This has a substantial adverse effect on her ability to carry out normal day-to-day activities.

 

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

 

·          Infrequent (less than once a month) loss of control of the bladder while asleep;

 

·          Infrequent and minor leakage from the bladder;

 

·          Incontinence in a very young child who would not be expected to be able to control urination and/or defecation".

(iii) Paragraph 6(1) and 6(2) of Schedule 1 to the DDA provide as follows:-

 

"6 - (1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day to day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.

 

(2) In sub-paragraph (1) "measures" includes, in particular, medical treatment ...".

 

(iv) As previously stated, the material time in this case for assessing whether the claimant has a disability, is from 31 July 2014 until 29 August 2014. The burden of proof is on the claimant to prove that when the alleged discrimination occurred he was disabled, in the manner alleged, for the purposes of the DDA. Whether or not the claimant is disabled is a matter of fact for the tribunal. It must make its decision in light of the medical evidence.

 

(v) If a person has a progressive condition and as a result of that condition has an impairment which has (or had) affected his ability to carry out normal day-to-day activities but the effect is not (or was not) a substantial adverse effect, the person shall be taken to have an impairment which has a substantial effect if the condition is likely to result in him having such an impairment. In the House of Lords case of SCA Packaging v Boyle 92009) UKHL, 37, "likely" was interpreted as "could well happen".

 

(vi) The tribunal is satisfied, in assessing the likelihood of an effect lasting 12 months, that account should be taken of the circumstances at the time the alleged discrimination took place. Accordingly, anything which occurs after that time (in this case 29 August 2014) will not be relevant in assessing this likelihood.

 

(vii) The tribunal was shown substantial extracts from the claimant's General Practitioner's notes which reveal a considerable medical history prior to 31 July 2014. The notes make reference to medication and it would seem, in particular, co-codamol. When asked by the tribunal, the claimant, having previously denied being on regular medication prior to 31 July 2014, could not ultimately remember whether he had been on medication prior to that date. The tribunal was not impressed by the claimant as a witness and at times doubted his credibility both in terms of truthfulness and reliability.

 

(viii) The tribunal also considered Altnagelvin Hospital notes pertaining to the material time and subsequently, insofar as relevant. It considered his discharge notes on 11 August 2014 which describe the primary diagnosis as "campylobacter infection". Under "primary procedures" there is the following entry - "sigmoidoscopy. Show very mild patchy inflammation but (not) completely typical of overt IBD and maybe resolving infective colitis". The sick note presented to the respondent and signed by Dr Hill on 11 August 2014 refers specifically to colitis.

 

(ix) Dr Morrison's report dated 5 June 2015 includes the following:-

 

"Given all of the above I think the diagnosis is now clearly campylobacter gastroenteritis and colitis in August 2014, complicated by severe post infectious irritable bowel syndrome of ongoing symptoms".

 

The tribunal is satisfied that on the evidence before it, that the condition of irritable bowel syndrome was secondary to the campylobacter gastroenteritis and colitis suffered by the claimant at the material time. Furthermore, the tribunal was satisfied that at the effective date of termination of the claimant's employment on 29 August 2014, no formal diagnosis of irritable bowel syndrome had been made. It also appears from Dr Morrison's evidence before the tribunal that of those suffering from the claimant's condition at the material time, only a minority suffer from irritable bowel syndrome as a consequence of that condition and a smaller proportion suffer from irritable bowel syndrome for a period in excess of a number of weeks.

 

(x) Dr Hill furnished a small report dated 29 May 2015 which reads:

 

"To whom it may concern,

 

The above man is a patient of this practice.

 

He has an ongoing severe bowel disorder and is under the specialist role of gastroenterologist Dr Morrison at Altnagelvin Hospital.

 

The diagnosis is Irritable Bowel Syndrome. He will need ongoing surveillance and investigation into the future for this. His medication includes Hyoscine, Alverine, Co-codamol, Laproamide, Nefupe. His symptons are extremely severe and disabling and interfere with all activities of daily life.

 

Yours sincerely

Dr John Hill"

 

The relevant entry in the GP notes and records for 29 May 2015 refers to:-

 

"[Letter] re current position for solicitors. Threat of [£]40,000 legal bill for action against employers".

 

(xi) The tribunal heard conflicting evidence regarding, in particular, the period from 31 July 2014 until 29 August 2014. It is satisfied, however that the attendance record produced by the respondent reflects the position accurately both in relation to the earlier episode on 22 May 2014 and of the material time in this case. The relevant entries are set out below as follows:-

 

"22 May First written warning given for above issue and probation extended by three months.

 

22 May Galvin expressed a desire to leave the company as he felt the above warning was unfair. I have advised him of the appeal process if he feels the warning was unfair. He was still annoyed and wanted to leave. I asked him was he sure and he said he felt it wasn't for him. I accompanied Galvin to his locker and got his equipment and Galvin left. I then called Galvin a few hours later to arrange an exit interview. He stated he felt he made a mistake and that he wanted to come back - Galvin will return to work tomorrow ........

 

31 July Went home sick after working two hours (eight hours sick).

 

1 August No contact made. Called agent on mobile who said that he had no credit in his mobile. Reminded of correct absence reporting procedure - processing as AWOL.

 

3 August Called in sick.

 

4 August No contact made - AWOL. Spoke to HR who advised to begin the abandoned procedure tomorrow.

 

7 August Ticket raised to be coded as "abandoned" from 1 August.

 

7 August Informed HR via email that Galvin was now in the "abandoned" process.

 

8 August AWOL - Handed in a sickline today covering from 1-4.

 

8 August Handed in a sickline today covering from 1-4. After consulting HR, they have advised that this is not the correct absence procedure and Galvin would be processed as AWOL for above dates that no contact was made.

 

10 August Abandoned.

 

11 August Abandoned - HR have scheduled a meeting for 14 August which, if Galvin has not made contact since, will result in an invite to a HR hearing being sent out.

 

14 August Still no contact made - Abandoned process continues.

 

14 August Discussed Galvin's absence with HR and we have decided to send Galvin an invite to a formal hearing. I have emailed HR with relevant details.

 

15 August Sickline left in today covering 1 August until 7 September. Incorrect absence reporting procedure as no contact was made prior to sickline being handed in. Coding as "sick from 15 ^th (when sickline was received until sickline expires on 7 September.

 

22 August Added to the LTS list".

 

(xii) A substantial effect is one that is more than minor or trivial. The case of Anwar v Tower Hamlets College UKEAT/0091/10 held that, as a matter of law, there is nothing inappropriate in considering an impairment to be more than trivial, and yet still minor rather than substantial. Furthermore, in assessing how substantial the adverse effect is on an individual's ability to carry out normal day to day activities, the tribunal should examine what a person cannot do or can only do with difficulty as a result of their impairment rather than what such a person can do. ( Aderemi v London and South Eastern Railway Limited UKEAT/0316/12/KN).

 

(xiii) In considering the effects of any impairment in the absence of medication, medical evidence as to the deduced effects is necessary and the burden of proof is with the claimant ( Woodrup v London Borough of Southwark (2003) IRLR 111). "Normal" is anything "which is not abnormal or unusual" ( EKPE v Metropolitan Police Commissioner (2001) IRLR 605). Evidence of how the claimant carries out normal day-to-day activities while at work is relevant evidence ( Law Hospital NHS Trust v Rushe (2001) IRLR 611).

 

(xiv) Miss Devlin, in her helpful written submissions, refers to guidance provided in relation to the Equality Act 2010 pertaining to a "normal day-to-day activity". This legislation does not apply to Northern Ireland. However the tribunal found it of assistance in pointing out that, in general terms, day-to-day activities are things people do on a regular or daily basis. Examples include shopping, reading and writing, having a conversation or using a telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport and taking part in social activities. Normal day-to-day activities can also include general work-related activities, and study and education related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern. Mr Neeson, in his helpful written submissions, refers to Harvey on Industrial Relations and Employment Law at Volume 2L, paragraph 160.2 which states:-

 

"The simple fact that a claimant can only carry out normal day-to-day activities with difficulty or with pain does not establish that disability is made out".

 

(xv) The tribunal carefully considered the claimant's evidence in relation to this aspect of the definition and also carefully considered the relevant medical evidence pertaining to the material time, together with the written and oral submissions from both counsel. The tribunal is also cognisant of the fact that at the material time (31 July 2014 until 29 August 2014), the claimant was admitted to Altnagelvin hospital from 1 August 2014 until his discharge on 11 August 2014 and was readmitted on 20 August 2014 until his further discharge on 22 August 2014.

 

Conclusions on the Definition Issue

 

6. (i) The tribunal acknowledges that the definition of disability issues is a matter of fact for it. However the tribunal also acknowledges that it must make its decision in light of the medical evidence ( Hospice of St Mary of Furness v Howard (2007) IRLR 994, EAT).

 

(ii) The tribunal is satisfied, on the evidence before it, that the claimant at the material time, had, on the balance of probabilities, a physical impairment which had a substantial adverse effect on his ability to carry out normal day-to-day activities. However on the evidence before it, the tribunal is not satisfied that the claimant has established a long term effect under Paragraph 2(1) of Schedule 12 the DDA which states:-

 

"(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;

 

(c) It is likely to last for the rest of the life of the person effected".

Furthermore the tribunal is not satisfied that the claimant satisfies the requirements of paragraph 2(2) of Schedule 1 which states:-

 

"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."

 

(iii) The tribunal therefore concludes that the claimant was not disabled within the meaning of the DDA.

 

(iv) Should the tribunal be incorrect in relation to the definition issue, it is satisfied on the basis of Mr Justice Elias' judgment in the case of London Borough Islington v Ladele and Liberty (EAT) (2009) IRLR 154, at paragraphs 40 and 41, and his further judgement in the case of JP Morgan Europe Limited v Chedwin (2011) EWCA CIB 648, that the reason for the claimant's dismissal was his failure to comply with the Absence Without Official Leave Procedure ('AWOL'). The claimant in his evidence initially accepted that this was the reason for his dismissal although supplemented his evidence later by including his sickness as a reason. The tribunal accepts that the respondent's AWOL procedure is strict. However the claimant was aware of at least another individual who had been similarly dismissed for failing to comply with the same procedure. He had not alleged that a disability was in any way relevant to that dismissal. There is no evidence before the tribunal that even if disabled within the meaning of the legislation, the claimant was treated in any way differently than a non-disabled person who failed to comply with the AWOL procedure would be in the same or similar circumstances. Furthermore the case of Malcolm v London Borough of Lewisham (2008) UKHL 43 had the effect of eliminating the concept of disability related discrimination as a separate ground of discrimination. Elias LJ stated, in that case, that "for practical purposes it adds nothing to the concept of direct discrimination".

 

(v) The claimant's claims are therefore dismissed in their entirety.

 

 

 

 

 

Employment Judge

 

 

Date and place of hearing: 22 - 26 June 2015, Belfast

 

 

Date decision recorded in register and issued to parties: