Marks v British Telecom Northern Ireland  (Preliminary Issue - Disability)  (29 November 2002)
THE INDUSTRIAL TRIBUNALS

CASE REF:	2876/00

APPLICANT:	John Marks

RESPONDENT:	British Telecom Northern Ireland 

DECISION
The unanimous decision of the industrial tribunal, on a preliminary issue, is that the applicant does not have a disability within the meaning of Section 1 of the Disability Discrimination Act 1995.   

Appearances:
The applicant was represented by Mr W McCreight of the CWU.
The respondent was represented by Mr N Drennan QC, instructed by Napier & Sons, Solicitors.

1.	(i)	This originating application was listed for the determination of a preliminary issue, namely whether the applicant had a disability within the meaning of section 1 of the Disability Discrimination Act 1995.
	
	(ii)	The tribunal heard evidence from the applicant, and from his GP, Dr John Wilson, on his behalf.  It also heard evidence from Dr Philip McCrea, a specialist in occupational health medicine, on behalf of the respondent, and had regard to documentary evidence submitted by the parties.
	
	(iii)	The tribunal finds the facts set out in the following paragraphs proved to its satisfaction on the balance of probabilities.
	
2.	(i)	The applicant, a single man aged 45 years of age, lives on his own.  At the time of his application to the tribunal he was employed by BT as a domain administrator, controlling engineers who carried out installation and repair work for customers.  At the time of the hearing, he was still employed by BT, though in a different capacity.
 	
	(ii)	On 19 October 1999, the applicant was diagnosed by Dr A J Taggart, a Consultant Rheumatologist, as having fibromyalgia (FM), or Chronic Fatigue Syndrome.  He made his application to the tribunal on 30 October 2000, by which time he had had that condition for at least 12 months.  The respondent did not dispute that the applicant suffers from FM.  This is capable of constituting a physical impairment (See O’Neill –v- Symn & Co Ltd [1998] ICR 481).  They also concede that his impairment is likely to be long term.
  	
	(iii)	At the time of his application and at the date of the hearing the applicant was on medication, Ciparmil, an anti-depressant and Stilnoct (sleeping tablets).  We find from the medical evidence that medication has only had a minimal impact on his condition. 
	
3.	(i)	The applicant gave evidence relating to his condition.  His principal symptoms related to fatigue, poor sleep patterns and irritability.  He described how they adversely affected his day to day activities, such as preparing food, cleaning and maintaining his house, car maintenance, cutting the lawn and laundry.  His evidence was that his condition was worsening, and his ability to carry out activities in respect of these tasks was diminishing.

In cross-examination, he denied exaggerating his symptoms.
 	
	(ii)	The applicant’s evidence was supported by that of his GP, Dr Wilson, who had been his family doctor for over 21 years.  He was of the view that the applicant had given an honest description of his symptoms, and that they were getting worse.  His opinion was that the applicant’s condition affected him in a way that was more than trivial.
	
4.	(i)	At the time of his application to the tribunal, the applicant had been off work for six months, and he did not return to work until February 2001.
	
	(ii)	He had been declared unfit for work by Dr McCrea in May 2000.  Dr McCrea, who had been seeing the applicant since 1998, had certified him as unfit because of the applicant’s grave agitation and distress on the day of the consultation.  The issue at that time was about the applicant’s ability to do his job.  Dr McCrea was aware of Dr Taggart’s diagnosis of FM, and did not disagree with it.  He saw no substantial change in the applicant’s condition in respect of FM.  He also found no direct link between the applicant’s symptoms of FM and the symptoms of distress and agitation which precipitated the applicant’s period of absence from work.  The  applicant was struggling with his job, and it was ultimately decided that he should not come back to that particular job because of the risk of relapse.
 	
	(iii)	Although the applicant was certified as being off work with FM during the period in question, it was not Dr McCrea who provided the sickness absence forms, and he would not have been aware of their contents.
	
	(iv)	Since returning to work in 2001, the applicant has not lost any time off work through sickness absence, though he states that he has taken an unspecified time off as annual leave when he was unwell.
	
5.	(i)	The medical evidence adduced on behalf of the respondent, and evidence of consultants obtained on the applicant’s behalf by his former solicitors, contradicts the evidence of the applicant and his GP, Dr Wilson.
	
	(ii)	A medical report of 8 May 2002 from Dr Gary Wright, a consultant rheumatologist concluded that the applicant “does not suffer from a physical or mental impairment which has a substantial effect on his ability to carry out normal day-to-day activities.  In particular he has no impairment which would affect his ability to carry out activities in paragraph 4(1) [of Schedule 1] of the Disability Discrimination Act 1995, apart from those of a trivial nature”.  
	
	(iii)	The conclusions of Dr Wright are supported by a further report dated 16 August 2002 from Dr J N Scott who essentially agrees with the former’s summary and conclusions.  He goes on to state that “[d]espite earlier pessimistic estimations, which are based upon the results of untreated cases [of FM], progress is good in subjects who willingly submit to a relevant rehab program.  This is almost entirely dependent upon the subjects’ insight and motivation”.  
	
	(iv)	The tribunal is conscious that the time at which to assess the disability is the time of the alleged discriminatory act (in this case October 2000), but we consider, in the absence of any suggestion that the applicant’s condition had improved in the meantime, that medical evidence contained in reports from 2002 is relevant.
	
	(v)	When the conclusions of these specialist doctors (who were retained by the applicant) were put to him, he did not accept them.  He criticised what he said was the short time Dr Wright had taken for a consultation, and maintained that the only person who could diagnose his condition was his GP, Dr Wilson.  Dr Wilson stated, however, that he could not disagree with this medical evidence, nor with that of Dr McCrea, to which further referral is made below.  
    	
6.	(i)	Dr McCrea, who has substantial experience of patients with FM, saw the applicant on nine occasions between August 1998 and December 2000.
	
	(ii)	He gave evidence that at one end of the scale there were patients with FM who were considerably incapacitated.  For example, they were wheelchair bound, or their memory and concentration were impaired, or they required help with personal tasks.  At the other end of the scale were those who were able to function reasonably well.
 	
 	(iii)	His assessment of the applicant was that he was in the middle of the range.  It was difficult to speculate on the likely prognosis.  It was, however, reasonable to assume his symptoms would continue for the foreseeable future.  The fact that the applicant was able to manage, and able to come to work, suggested he could continue to manage at the level he was doing.
  	
	(iv)	Dr McCrea had been involved in other cases where he considered that persons suffering from FM were disabled within the meaning of the Disability Discrimination Act 1995.

In the case of the applicant, he concurred with the conclusions of Dr Wright and Dr Scott, and he too concluded that the applicant’s impairment did not have a substantial adverse effect on his ability to carry out the normal day-to-day activities specified in paragraph 4(i) of Schedule 1 of the 1995 Act.
	
	(v)	At his examination of the applicant on 18 December 2000, he had proceeded by way of his observations of the applicant, and by reference to a Disability questionnaire, which, under the various headings of mobility, manual dexterity and physical         co-ordination etc, set out the examples in the subdivisions in Guidance under  the Act as to those matters which it would be reasonable to regard as having a substantial adverse effect on someone’s ability to carry out normal day-to-day activities.  He did not find that the applicant was adversely affected in any of those respects listed in paragraph C4 of the guidance. 
	
7.	There is evidence in the medical reports and from the applicant himself that he has engaged, and continued to engage, in activities such as golf, snooker, and driving.  No criticism is made of the applicant by anyone in this regard, as these activities constitute positive action on his part to help him manage his condition.  However, the fact that the applicant takes part in these activities does tend to show that in relation to matters such as dexterity, mobility and physical co-ordination, the applicant’s condition is not having a substantial adverse effect on his ability to carry out normal day-to-day activities.  
 	
8.	As stated the respondent does not dispute the applicant’s condition, or that it is a long term condition.  The question for the tribunal is whether this impairment has a substantial adverse effect on his ability to carry out normal day-to-day activities.

The tribunal has had regard to the oral evidence, the medical evidence, the submissions made on behalf of the parties, the provisions of the 1995 Act, and the Code of Practice and the Guidance.  

It has noted the conflict in the medical evidence given by the applicant’s GP, Dr Wilson, on the one hand, and the evidence of Dr Wright, Dr Scott, and Dr McCrea on the other hand.  

However, having regard to the preponderance of the medical evidence, and the oral evidence which we have heard which suggests that since 1998 the applicant’s condition has not progressed, but has remained relatively static, we are not satisfied that his impairment has a substantial adverse effect on his ability to carry out normal day-to-day activities.

We therefore find, on the determination of the preliminary issue, that the applicant does not have a disability within the meaning of section 1 of the Disability Discrimination Act 1995. 	

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Date and place of hearing:  29 November 2002, Belfast

Date decision recorded in register and issued to parties: