THE INDUSTRIAL TRIBUNALS

       CASE REFS:	348/06

CLAIMANT:			Mark Hughes			

RESPONDENT:		The Youth Justice Agency			

DECISION ON A PRE-HEARING REVIEW 

The decision of the tribunal is that the claimant is not disabled within the meaning of the Disability Discrimination Act 1995 as amended and accordingly his claim of disability discrimination is dismissed. 

Constitution of tribunal:

Chairman (sitting alone):		Mr S A Crothers 

Appearances:

The claimant represented himself. 

The respondent was represented by Ms N Murnaghan, Barrister-at-Law, instructed by the Crown Solicitor’s Office.

1.	The issue before the tribunal was as follows:-

(i)	Whether the claimant as a worker/employee had a disability within the meaning of the Disability Discrimination Act 1995 as amended (“the Act”).

2.	The tribunal heard evidence from the claimant and received documentation from both parties.  The respondent’s Counsel clarified at the outset of the hearing that the respondent agreed that the claimant had a physical impairment within the 
meaning of the Act.  However, all other aspects of the definition of disability were disputed.  

3.	Having analysed the evidence before it insofar as same is relevant to the issue set out above, the tribunal came to the following findings of fact:-

(i)	The claimant had been given ample opportunity to provide medical evidence but had not done so, despite a further opportunity being given by the tribunal between the date of the previous hearing on 22 March 2007 and the reconvened hearing on 17 April 2007.  The only evidence before the tribunal of a medical nature were certain abstracts from Occupational Health Notes dated 9 January 2006, 24 January 2006 and 10 February 2006.  In addition, the tribunal was shown correspondence from Dr Alasdair McDonnell, MP, MLA, to Ms Cathy Heaney, the respondent’s Head of Personnel, dated 11 November 2005 and a reply by Ms Heaney to Dr McDonnell dated 25 November 2005.  The tribunal also had access to the relevant legislation together with the Code of Practice and the Guidance on matters to be taken into account in determining questions relating to the definition of disability.  The claimant confirmed that the relevant period to be taken into account by the tribunal as to the alleged act of disability discrimination and therefore the definition issue was from 25 November 2005 until a date (unspecified) in February 2006 (“the relevant period”).  The claimant had signed his tribunal claim form on 15 March 2006 and it was presented to the tribunal on 21 March 2006.
	
(ii)	On Friday 13 May 2005, the claimant suffered a severe diabetic episode within the Education Department of the Juvenile Justice Centre in Bangor.  His role as a Residential Social Worker meant that he was caring for vulnerable young people in a secure environment.  He was referred to the Occupational Health Service by the respondent.  The Occupational Health Service suggested that the claimant should carry out duties in the operations team or night staff team at the Centre as an alternative to his duties during the day.  The Occupational Health Medical Adviser visited the Centre on 21 June 2005 and subsequently advised that the claimant was unfit to return to duty and further advised that his condition would need to be very stable before he could return to duty and he would have to remain on sick leave until his condition had satisfactorily stabilised.  The claimant had commenced full time employment with the Youth Justice Agency on 6 June 2003.  Following the incident on 13 May 2005 the claimant was suspended from duty by the respondent for what is described in the respondent’s Response as “a duty of care measure”.  He was on sick leave from 21 June until his further suspension on 28 November 2005 due to the absence of sick lines.  He returned to work on 6 February 2006 having requested, initially on 15 August 2005, that he be allowed to undertake night or operations team duties.  Following a meeting with the respondent on 25 November 2005 (the date on which the relevant period begins) he was advised that neither night nor operations team duties were viable options and the reasons why this was not the case are set out in correspondence from Cathy Heaney, Head of Personnel, dated 30 November 2005.  The claimant instigated a formal grievance regarding the disability issue on 17 November 2005.

(iii)	The claimant had suffered from diabetes for some 27 years.  His condition had worsened progressively over the past 17 years.  He had obtained a medical discharge from the Royal Irish Rangers at a date unspecified in the past.  Whereas in the early years of his diabetic condition, he was able to travel extensively, this had become more restricted.  However, in or about July/August 2005 he was able to assist in digging holes for posts, mix concrete, and use a 7 pound hammer.  He described how he “came round five hours later with his son sitting on top of me”.  The tribunal accepts that the claimant was susceptible to hypoglycaemic attacks.  He described a previous attack as far back as August 1984, and a further hypoglycaemic attack in April 2005 followed by the attack previously referred to on 13 May 2005.  However, under cross-examination the claimant accepted that his condition was more stable from January 2006.  The claimant, who was a law graduate and had undertaken Arbitration and Mediation Courses in 2003 and 2004, was also able to commence a Bar Vocational Course in London in late August 2005 and travel by bus.   Due to the fact that he had difficulty in carrying a large number of books this course was deferred until later in November 2005 when he was able to proceed having installed a computer hard disk to store necessary information.  The tribunal had insufficient evidence before it as to how the claimant’s diabetic condition was adversely affected by carrying books, as he claimed.  The tribunal does accept that in general terms when his blood sugar became low his mind did begin to wander and he had no idea of what was going on around him.  However, the claimant was not specific about this during the relevant period.  The tribunal accepts that his mobility was affected during the episode of 13 May 2005 and previously in April 2005, and that he would sometimes shake violently.  It also accepts that at a date unspecified in 2004 he had a further episode having walked 70 yards to a post box.  He had to ring his wife and use the post box as a support.  His manual dexterity was also affected in July 2003 when due to a further hypoglycaemic attack at the dinner table it was impossible for him to use his hands and feed himself.  He was no longer able to engage in extreme activities such as mountain climbing, motor boating (although not as driver), and had not been out cycling for more than three years.  The tribunal also accepts that after the hearing on 17 April 2007, the claimant felt unable to walk home.  This was a distance of some two miles.  However, he specified the reason as being because he would have to walk uphill.  

(iv)	Under cross-examination the claimant agreed that he had not carried out any night shift work from his initial suspension in May 2005 but felt able to do the day shift work after he returned to work on 6 February 2006.  He also conceded that from April/May 2005 (and for an unspecified time before that) he did not have monthly episodes of hypoglycaemic attacks.  He claimed to be unaware as to why his consultant had not furnished a medical report requested by Dr McCaughan of Occupational Health in January 2006.  The entry in the Occupation Health notes of 10 February 2006 states, “Mr Hughes medical condition appears to be under better control and he has had no further episodes of hypoglycaemia.  He is aware of how to monitor and manage his condition.  He is aware of monitoring required prior to driving.  I would anticipate regular and effective service.  Please refer again if he has further problems.  I understand he is to forward a letter from his consultant and I will write again should this letter alter the situation”.  It also accepts that the respondent’s representatives also made various attempts to obtain a consultant’s report from the claimant.  The tribunal accepts that a request was made for such a report in August 2006 and a Pre-Hearing Review was postponed in October 2006 in order to facilitate the production of such a report.  Under cross-examination the claimant conceded that solicitors previously on record for him had obtained a report from a Registrar, Dr Lindsay, in or about November/December 2006 which was unfavourable in assisting the claimant in the definition of the disability argument.  It indicated that his condition was under control and that his medical condition was good.  There is no evidence to substantiate the claimant’s contention that his consultant, Dr Henry, (who was repeatedly requested to furnish a report), disagreed with Dr Lindsay’s opinion.  Furthermore, the claimant had spent Friday and Saturday 13 and 14 April 2007 assisting his father again, to use the claimant’s words “digging a couple of holes”.  However, the claimant stressed that this was not strenuous activity and he had not used a 7 pound hammer as in July/August 2005 when he had had a hypoglycaemic attack.  He further confirmed that the episode in April 2005 occurred when he was playing football.  Although he had a driving licence he had to stop the car after 45 minutes driving to check his blood sugar level.  He accepted that the areas of mobility, manual dexterity, physical co-ordination, and perception of risk and physical danger which he had highlighted in his evidence all related to hypoglycaemic episodes.  Further he admitted that he had not experienced such episodes as frequently even during the period November 2005 to February 2006 before his return to work.  There was no specific evidence during this period of an episode similar to what he experienced earlier in 2005.  Although he did not walk as much as he used to, the claimant was clearly mobile and evinced manual dexterity and acute awareness of the issues in his case before the tribunal.  The tribunal also finds that his condition improved progressively particularly following his return to work on 6 February 2006.  The claimant’s evidence that if he did not take treatment for his diabetic condition the effects would be fatal had no medical evidence to support it.  

4.	The law in relation to the issue before the tribunal is set out in Section 1(1) of the Act:-

“(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/her ability to carry out normal day-to-day activities. 

 (2)		In this Act “Disabled Person”, means a person has a disability”.

Paragraph 2(1) of Schedule 1 to the Act deals with the question of long-term effect. It 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 1 to the Act deals with the question of an impairment affecting day-to-day activities.  It provides:-

	“Normal Day-to-Day Activities

 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”.
        	 
Paragraph 6(1) of Schedule 1 deals with the effect of medical treatment as follows:-

		“Effect of Medical Treatment”

 6.- (1)	An impairment which would be likely to have a substantial adverse affect 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 treated as having that effect.

                 (2)           In sub-paragraph (1) “Measures” includes, in particular, medical 		           treatment and the use of a prosthesis or other aid.
			
                 (3)	      Sub-paragraph (1) does not apply -

(a)	in relation to the impairment of a person’s sight, to the extent that the impairment is, in his case, correctable by spectacles or contact lenses or such other wares as may be prescribed;  or

(b)	in relation to such other impairments as may be prescribed, in such circumstances as may be prescribed”.

The Tribunal considered the relevant case law including the Northern Ireland Court of Appeal decisions in Ross -v- Precision Industrial Services Ltd [2005] NICA 25 (“the Ross case”), Cunningham -v- Ballylaw Foods Ltd (delivered 31.01.07) (“the Cunningham case”), Kapadia -v- London Borough of Lambeth [2000] IRLR 699 and McNicol  -v- Balfour Beatty Rail Maintenance [2002] IRLR 711.  The Tribunal also considered the relevant provisions of the Code and Guidance, and the Section on Harvey on Industrial Relations and Employment Law, Division L, at 1316 et seq.  Even in the absence of expert medical evidence the tribunal was mindful of the duty placed upon it to assess what normal day-to-day activity is and whether or not impairments which exist are or are not substantial.  These are questions of fact upon which the tribunal must make a finding.  (Vicary -v- British Telecommunications PLC IRLR 680).  In dealing with the issue before it the tribunal replied on the Guidance provided by the case of Goodwin -v- Patent Office [1999] IRLR 4 (“the Goodwin case”), by dividing the definition of disability into four elements:-

(i)	Does the claimant have an impairment which is mental or physical?

(ii)	Does the impairment affect the claimant’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 affect?

(iii)	Is the adverse effect (upon the claimant’s ability) substantial?

(iv)	Is the adverse effect (upon the claimant’s ability) long-term?

This case also states that a tribunal should adopt a purposeful approach towards the construction of the legislation and make explicit reference to any relevant provision of the Guidance or Code which has been taken into account in arriving at its decision.  The tribunal considered paragraphs C 14. (Mobility), C 15. (Manual Dexterity), C 16. (Physical Co-ordination), C 18. (Ability to Lift, Carry or Otherwise Move Everyday Objects), C 20. (Memory or Ability to Concentrate, Learn or Understand), and C 21. (Perception of the Risk of Physical Danger).      

5.	Having analysed the evidence in relation to the issue before it and applying the relevant principles of law to the findings of fact, the tribunal concludes as follows:-

(i)	Although the tribunal did not have the advantage of hearing from a medical expert or having a medical expert report, it is satisfied on the balance of probabilities on the evidence before it, that the claimant suffered from a physical impairment namely diabetes.  However, there was insufficient medical evidence before the tribunal for it to ascertain the type of diabetes from which the claimant suffered.

(ii)	In addition to the case law previously referred to, the tribunal also considered the Ross case and in particular paragraph 34 where Kerr LCJ, having considered the Goodwin case in relation to day-to-day activities states that, “one must focus on the ordinary incidents of life, therefore, in considering whether the claimant is affected in a requisite way.  Activities at work can, of course, provide some insight into the question because these may replicate circumstances that are normally encountered outside the workplace.  Thus in Rush the Court of Session acknowledged that some work activities may be relevant.  At paragraph 17 the Court said:-

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

The Tribunal also took into account the judgment of Girvan LJ in the Cunningham case at paragraph 21 where he states:-

“The sequence of questions posed in Goodwin does highlight the statutory requirement for a claimant to show both a substantial and a long-term impact from the alleged impairment.  The splitting of the issues into two separate and self contained questions whether a person has an impairment which is substantial and whether she has an impairment which is long-term may, however, be two analytical and divert attention from the fact that the substantiality of an impairment is in itself influenced by the length of time the impairment is likely to last … [25] in Ross and Precision Industrial Services Limited -v- DuPont UK (Limited) the Court of Appeal in this jurisdiction stated that the onus of establishing that the claimant was substantially affected in given respects rests squarely on the claimant.  It referred to Kapadia -v- London Borough of Lambeth [2000] IRLR 699 where the Court stated:-

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

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

(iii)	In relation to the issue of long-term effect of the impairment the Guidance, at paragraph B states:-

	“In assessing the likelihood of an effect as to any period account should be taken of the total period for which the effect exists.  This includes any time before the time the discriminatory behaviour occurred as well as any time afterwards”.

(iv)	The Tribunal is aware that the authorities are difficult to reconcile when it comes to the right time at which to consider whether the statutory definition of disability is satisfied.  However, the Tribunal considered the Cunningham case on this issue including its consideration of the case of Latchman -v- Reid Business Information Limited [2002] IRCR 1453.  It also considered the case of Cruickshank -v- W A W Motor Cass Limited [2002] IRLR 24 where the Employment Appeal Tribunal held that the time at which to assess disability was when the act of alleged discrimination took place.  The Tribunal also took cognisance of the Guidance at paragraph B 7 in assessing whether the period for which the long-term effect lasts is likely to be at least 12 months and asked itself if this was more probable than not at the date when the act of alleged discrimination complained of took place.  The Tribunal answers this question in the negative.  The Tribunal is therefore not satisfied on the evidence before it, and given the paucity of medical evidence, that the claimant’s impairment had a substantial and long-term adverse affect on his ability to carry out normal day-to-day activities.  

6.	The tribunal therefore concludes that there was not a disability, within the meaning of the Act, and his claim of disability discrimination is accordingly dismissed.    

	

Chairman:

Date and place of hearing:	22 March and 17 April 2007, Belfast.			

Date decision recorded in register and issued to parties: