McCracken v Department of Health [2017] NIIT 00311

THE INDUSTRIAL TRIBUNALS

CASE REFS: 2426/15

311/16

CLAIMANT: Ann McCracken

RESPONDENT: Department of Health

DECISION

The tribunal dismisses each of the claims.

Constitution of Tribunal:

Employment Judge: Employment Judge Travers

Members: Ms F Cummins

Mr E Grant

Appearances:

The claimant was unrepresented and appeared in person assisted by her McKenzie Friend, Mr M McCracken.

The respondent was represented by Mr Aidan Sands, Barrister-at-law, instructed by the Departmental Solicitor's Office.

REASONS

Issues

1. The claimant alleges that she has suffered discrimination on the grounds of disability. Two separate claims have been issued in the Industrial Tribunal relating to the claimant's allegation. By a case management decision made on 19 January 2016, it was directed that the claims should be consolidated and heard together.

2. At the outset of the hearing both parties confirmed that, with one exception, the issues for determination are those identified in a provisional list of issues set out at a case management discussion on 20 April 2016.

3. The issues as set out at that case management discussion are as follows:-

'(a) Whether the claimant was unlawfully discriminated against by the respondent, contrary to the Disability Discrimination Act 1995, in either:-

(i) The decision to uphold the original complaint by Ms Carter and the penalty imposed by the respondent in relation to that complaint.

(ii) The decision to treat the claimant's complaint against Mr Pauley as a standard grievance rather than as a Dignity at Work complaint?

(b) Whether the claimant was, at all relevant times, disabled for the purpose of the 1995 Act?

(c) Whether the claims, or any part of those claims, was lodged outside the statutory time-limit and, if so, whether that time limit should be extended?

(d) In plain terms, the claimant alleges:-

(i) That the respondent failed in relation to the complaint by Ms Carter to take into account the claimant's alleged disability (reasonable adjustment claim).

(ii) That the decision to treat the complaint by the claimant against Mr Pauley as a standard grievance and not as a Dignity at Work complaint was an act of unlawful discrimination.'

4. At the outset of the hearing the claimant expressly withdrew the one other issue which was identified at the case management discussion namely, 'that the decision of the Department in relation to the complaint by Ms Carter was an act of unlawful direct discrimination'.

5. At the hearing on 20 April 2016 the Vice President also, 'stressed to the claimant that she must establish that she was disabled at the relevant times for the purpose of the [Disability Discrimination Act 1995]'.

The existence of a disability as a preliminary issue

6. The claims before the tribunal are based on an assertion that at the relevant time the claimant suffered depression and that her depression constituted a disability within the terms of the Disability Discrimination Act 1995 (as amended) ['DDA'].

7. At the outset of the hearing the respondent's counsel stated that the respondent did not agree that the claimant had a disability and expressly put the claimant to strict proof of it. A finding of disability within the statutory definition is an essential foundation for any claim of disability discrimination.

8. When the hearing began the claimant requested that the question of the existence of a disability should be determined as a preliminary issue before considering the evidence in respect of discrimination. She said that she had been advised by the Labour Relations Agency that the tribunal would approach the matter in this way.

9. The respondent objected to this course. Mr Sands highlighted that it had not been raised or provided for at any of the case management discussions and he asserted on behalf of the respondent that in the circumstances of this case it was necessary to hear all the evidence so that the issue could be determined fairly.

10. The tribunal decided that it would not deal with the question of disability as a preliminary issue in view of the enmeshed nature of some of the evidence relating to the alleged existence of a disability and the facts of the case generally.

11. Having now heard all of the evidence the tribunal must consider at the outset of this decision whether it is satisfied that at the relevant time the claimant was disabled within the meaning of the DDA. If it is not so satisfied then the claims fail.

Meaning of disability within the DDA

12. Section 1(1) of the DDA states that: '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.'

Schedule 1 of the DDA at paragraph 2(1) provides that: '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

Paragraph 4(1) of Schedule 1 provides that: '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;

(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.'

13. The burden of proving disability within the terms of the DDA rests with the claimant to be established on the balance of probabilities.

14. Neither party referred the tribunal to any specific legal authority in respect of the meaning of disability.

15. The tribunal has considered the content of the Equality Commission's DDA Code of Practice - Employment and Occupation (including the April 2013 updates).

Facts concerning the existence of a disability within the meaning of the DDA

16. The claimant is a person who has demonstrated professional ability and talent throughout her career. She entered the employment market at the age of 17 and worked her way up to becoming a qualified certified accountant.

17. The claimant presents as someone who is careful and meticulous in her work. She is a person who endeavours to give her employer the benefit of her best professional skills. It is right to record that the respondent makes no complaint in these proceedings about the quality of the claimant's work. The complaints which were made about the claimant at work related to her management style rather than her professional ability.

18. The claimant has enjoyed a varied and successful career in both the private and public sector. She re-joined the Northern Ireland Civil Service in October 2009 within the Department of Justice, achieving promotion in May 2011. In December 2011 she started work in the Department of Health & Social Services & Public Safety as an accountant at Grade 7, and in March 2014 she was posted on a temporary basis to the Department's Investment Directorate.

19. The claimant states that within six weeks of her transfer she became responsible in respect of a £250,000,000 budget for performing the annual year-end reconciliation of the money spent against the budget allocated. The claimant set about her duties conscientiously and says that she uncovered a number of financial underspends which she says ultimately revealed serious weaknesses in systems and staff training.

20. It was against this background that difficulties arose in respect of relationships at work with two colleagues, Anna Morrison and Linda Carter, who were line managed by the claimant.

21. A series of meetings took place between the claimant and her own line manager, Bill Pauley, to discuss issues relating to the claimant's approach to managing staff and in respect of the pressures of work she identified at that time. The meetings took place on 17 and 18 June, and on 28, 29, 30 and 31 July 2014.

22. On the morning of 19 August 2014, Mr Pauley was informed of further difficulties in the claimant's working relationship with Anna Morrison and Linda Carter and that afternoon he held a meeting with the claimant to discuss the position.

23. One outcome of the meeting on 19 August was that Mr Pauley requested that the claimant should not pass on negative feedback to Ms Morrison and Ms Carter before discussion of it with him, although she could continue to clear their work.

24. At the meeting on 19 August the claimant raised for the first time the issue of depression as a contributing factor to her demeanour at work.

25. In a note dated 26 August addressed to Mr Pauley, the claimant stated that, 'I advised you at our meeting on 19 in confidence that I suffer from Clinical Depression which had been exacerbated during this pressurised time and which you experienced on several occasions when I broke down because of the situation with staff, resources and system processes.'

26. A further outcome of the meeting on 19 August was an agreement that a referral to Occupational Health Services ['OHS'] would be made. In her note of 26 August the claimant indicated that in the short term she would be unable to change her attitude as requested by Mr Pauley, but she hoped that OHS 'can provide you with medical evidence that will help you understand why I cannot deliver what you have requested immediately'.

27. In a note dated 27 August 2014 from Mr Pauley to the claimant, he told her that, 'while work can be cleared through you I would ask that you do not pass negative feedback to staff before discussion with me.' This was described as a protocol during the course of this hearing.

28. The claimant obtained a letter from her GP dated 23 September 2014 and addressed to Mr Pauley. It stated that the doctor had, 'treated her for depression in the past, including counselling and medication'. The doctor referred to his concern that, 'her current working environment is dragging her down again despite her attempts to remain positive'. He went on to state that he, 'would value your Occupational Health Service input to provide you with an assessment and understanding of her current mental health'.

29. It is of note that the GP referred to the treatment for depression as being, 'in the past'.

30. The issue of the production of the claimant's GP notes for the purpose of this claim was raised on 20 April 2016 at a Case Management Discussion which was conducted by the Vice-President. The record of proceedings at paragraph 3(ii) states: 'It was stressed to the claimant that she must establish that she was disabled at the relevant times for the purpose of the 1995 Act. The claimant has not yet sought any GP notes and records. She was directed to do so immediately and to provide, at the earliest possible date, photocopies of all GP notes and records for the last six years to the respondent's representative. She may redact, to the most limited extent possible, any reference to matters which are entirely unrelated to mental ill-health or depression or stress.'

31. Ultimately the claimant produced a self-redacted set of GP medical notes. The earliest entry in those notes is 27/02/12 with the next disclosed entry being 23/09/14.

32. The entry for 27/02/12 states: 'Medication decreased. Wished to stop Ciprlex so weaned off it - stopped it completely 2/52 [two weeks] ago but has had some withdrawal symptoms. Wishes to try 5mg daily and to gradually reduce to 5mg every other day then 5mg every 3 ^rd day. RV if any problems with this. The Board recently asked us to switch patients who are taking Cipralex to Citalopram but pt is anxious about doing this - requests Cipralex.'

33. During the course of the hearing the claimant produced a letter dated 25/01/17 from her GP which states that that, 'Our first records of Ann having been prescribed an anti-depressant would be January 2002. She continued to take anti-depressants until March 2012, she was reviewed periodically by doctors during this period'.

34. The 27/02/12 entry in the GP notes and the GP letter dated 25/01/17 is the entirety of the documentary medical evidence of the claimant's medical history which she has chosen to provide for the period prior to 23/09/14.

35. No medical records were produced by the claimant in support of her assertion to Mr Pauley on 19/08/14 that she was suffering clinical depression at that time. The immediately previous entry in her GP records as disclosed to the tribunal was more than two years before on 27/02/12 and the next entry was not until 23/09/14.

36. The GP notes for 23/09/14 record, 'Low mood work dragging her down - needs to get out and back into private sector again where her work ethic is valued - getting counselling - needs letter to get OHS to see her and dea [sic] with this'.

37. The claimant saw Dr Mills of Occupational Health on 01/10/14. His notes record that the claimant described herself as being stressed. She told him that she had been criticised because of her feedback to staff and that her line manager wanted her to change her attitude to be more positive. Dr Mills records that the claimant told him that she, 'has had depression for 14 yrs ... Managed by GP... counselling and CBT still works through CBT toolkit. States mood last normal April/May 2014. Used antidepressant for many years stopped about 4 years ago - didn't like side effect'.

38. In Dr Mills' written report dated 01/10/14 he referred to what the claimant had told him about her history of depression and noted that, 'it would appear her deterioration in symptoms is reactive to work pressures. I have advised her that at this stage I do not think she is fit for work and should return to her GP for further discussion about treatment'. He found that, 'There is significant evidence of an underlying medical condition which does impact on her performance or attendance ... Ms McCracken is currently unfit to carry out the normal duties of her grade ... I do not think it is possible to objectively quantify the attribution of Ms McCracken's behaviour to a particular illness. Certainly people suffering depression often have a negative perspective, though more usually this would be reflected in their attitude to their own ability and performance. It would also be the case that those suffering depression and anxiety can be more irritable so may get into arguments quicker than when well, or make 'off the cuff' remarks that when well, they would not have said. Personality traits may well contribute to the situation and Ms McCracken is aware that she sets high standards and has perfectionist traits'.

39. Following the report of Dr Mills, the claimant was signed off work from 01/10/14 -29/10/14. The human resources sickness absence record describes the reason for her absence as, 'Stress - Work Related'.

40. On 07/10/2014 the redacted GP notes record, 'Stress at work accountant in Dept of Health, boss is constantly criticising her, req occ health apt, saw them last Wed and they found her unfit for work, d/w feels she could do her job but not in that environment. In charge of figures and staff constantly getting them wrong, there were no processes in place for decision making and staff resisting any change. Emotional loss of interest and motivation but still forcing herself to do things, runs [next line redacted] wakening 3am thinking about work - gen advice does not want to consider medication, seeing counsellor re positive thinking, has requested mediation for workplace, d/w see 3/52 sooner sos'.

41. The GP notes record the issue of a sick note on 21/10/14 in respect of 'stress at work'.

42. In November 2014, following the claimant's return to work, there was a dispute between the claimant and Mr Pauley as to arrangements in respect of staff management and as to whether the claimant was making negative comments about a staff member's work.

43. The redacted GP notes record an appointment on 05/11/14, 'back at work 5 days ago, has decided to try her best to get on with her job, realises talking to her boss is like talking to the wall, he won't listen to anything and she can't change this, mediation has been put in place, [note redacted by claimant]'.

44. E-mail correspondence between the claimant and Mr Pauley culminated in an email from the claimant on 12 November 2014 where she wrote to advise Mr Pauley that: '...I am unfit to come into work due to the return of work related stress because of your unreasonable behaviour since I returned to work on 30 October. Your e-mails to me of 6, 7, 10 and 11 November are evidence of your unwarranted and destructive approach towards me within the team. You are fully aware of my mental health condition and your unwarranted behaviour has brought on another episode of work related stress to the extent that I am now unfit. Your continued inability to provide documentary evidence or have [sic] received any formal complaint made against me from any member of staff of why your [sic] have adopted this constructive [sic] and unreasonable approach to me is something that you must address with some urgency in order to resolve this situation' [all emphasis added].

45. On 13 November 2014 a formal complaint of bullying was made by Linda Carter against the claimant who was her line manager. The complaint was in due course passed to HR Connect for investigation.

46. It appears that the claimant had a follow up appointment with her GP sometime after 12 November. Unfortunately the claimant presented the GP records redacted in a way which made the date of the next follow up appointment unclear. When that appointment took place the doctor recorded, 'went back to work for 4 days but boss started annoying her again and has been off since, [note redacted by claimant] Mediation has been arranged for Monday'.

47. The human resources absence record notes that she was absent from work from 12 November 2014 until 13 March 2015. The reason for the absence was, 'Stress - Work Related'.

48. The redacted GP records confirm that the reason for the absence from work was 'stress at work'. Sick notes were issued by the GP on that ground on 19/11/14, 07/01/15, 21/01/15, 03/02/15, 18/02/15, and 05/03/15. A sick note was issued on 09/12/14 on the grounds of 'stress'.

49. On the redacted GP records provided by the claimant, it is of note that her eight attendances at the GP between 21 October 2014 and 5 March 2015 each generated a record only of the issue of a sick note on the grounds of 'stress at work', save for one occasion when the sick note was issued on the grounds of 'stress'. There is no record on these occasions of any discussion, consultation or treatment in respect of depression.

50. In her statement filed in respect of these proceedings the claimant stated that from January 2014 her, 'mental health rapidly declined'. She said that the conditions at work led her to stop socialising 'with friends and [I] couldn't continue with my running activities, because I couldn't smile and felt I had nothing to contribute in a social situation'. The claimant said that she had, 'a mental health breakdown in the office on 19 August 2014'. She went on to assert that the difficulties she faced led to, 'a complete mental health breakdown in October 2014 leaving me housebound for 4 months'.

51. There is no reference in the disclosed GP notes to a 'complete mental health breakdown' either by the doctor or by the claimant. There is no record of the claimant describing to the GP a 'mental health breakdown in the office on 19 August 2014'.

52. There is no record in the GP's notes of the claimant describing herself as 'housebound' at any point. On 7 October 2014 the GP noted, 'Emotional, loss of interest and motivation but still forcing herself to do things, runs'.

53. On 22 December 2014 the claimant saw the occupational health nurse who recorded the reason for the claimant's absence on her handwritten notes as 'stress'. The nurse noted that the claimant complained of low mood and motivation, loss of appetite, sleep disturbance, emotional distress, social withdrawal, and pre-occupation with work issues. It was noted that the claimant 'denies any suicidal ideation'. The claimant complained of bullying and harassment at work. She told the nurse that she wanted to get back to work but that she couldn't work under her current line manager.

54. On 30 January 2015, while investigation of Linda Carter's complaint against the claimant continued, the claimant made a Dignity at Work complaint against Linda Carter and the claimant's line manager Bill Pauley. The complaint was originally in respect of allegations of harassment on the grounds of disability and discrimination on the grounds of sex, religion and being a single parent.

55. On 11/02/15 the claimant again saw the Occupational Health nurse who on this occasion recorded the reason for the claimant's absence as 'depression'. The claimant indicated that mediation had taken place on 23/01/15 'with the LRA + management' but that it had been unsuccessful and she had been unable to resolve her issues with management. The nurse recorded the claimant's symptoms as, 'ongoing emotional distress, low mood, sleep disturbance and pre-occupation re: work issues, loss of confidence'. It was noted that the claimant was, 'Trying to get back into gym + running again'.

56. On 31 March 2015 the claimant was informed by Bernie Gray from departmental human resources that the claimant's dignity at work complaint would be investigated only on the grounds of bullying. This decision was appealed by the claimant by letter dated 21 April 2015.

57. At a meeting with Tina Dempster (the Head of the Departmental HR branch) on 21 May 2015 to deal with the appeal, the claimant did not pursue the complaints of discrimination on the grounds of sex, religion or marital status.

58. Ultimately Ms Dempster concluded that the complaint would proceed only on the ground of bullying. In the letter dated 22 June 2015 informing the claimant of her decision, Ms Dempster told the claimant that consideration would be given to extending the scope of the investigation if the evidence suggested that harassment or discrimination on the grounds of disability may have occurred.

59. The report of HR Connect in respect of Linda Carter's complaint against the claimant is dated 29 May 2015. It recommended that, 'consideration could be given to upholding the allegation of bullying against Ms McCracken on the basis that there is sufficient evidence to suggest that her actions constituted bullying as defined in the NICS 6.09 Dignity at Work Policy v1.0'. In reaching this recommendation the author of the report had expressly considered, inter alia, the claimant's attribution of her negative outlook to depression.

60. Having considered the recommendation in the HR Connect report and the supporting evidence, Bernie Gray upheld Ms Carter's complaint against the claimant. She notified the claimant by letter dated 17 July 2015. The matter was then passed to Ms Gray's colleague, Pamela McIlwrath who acted as disciplinary decision officer.

61. On 14 August 2015 the redacted GP notes show that claimant attended the GP for the first time since the last sick note for stress was issued on 5 March 2015. During the August visit it appears that neither the claimant nor the GP referred to depression:

'Had a chat to patient felt annoyed that work didn't contact her when she was off sick for 5/12, when she contacted, when she contacted them they said they didn't have a job to give her, she had to get MLA to intervene to get her back to work. Permanent contract with dept of health. Has been in 2½ years, has been moved 7 times, not of her choosing to move, never enough work in whatever job she has been given. Now head of int audit, enjoys job, lady she works for seems to want to make her life miserable, currently enough work where she is at present but manager wants her to move again. Ann feels this is because Ann kept asking for more work and this showed dept up in a bad life [sic]. Was off work because male boss bullied and harassed here [sic]. Union now involved. Has been in this job 4/12 and feels is at the end of her tether and couldn't face another move'.

62. At the claimant's request the GP wrote a letter to her employer dated 14 August 2015. The letter expressed the claimant's concern about a further proposed change of role within her job. The GP also wrote the following:

'Ann has attended me since October 2014 because of work related stress, and prior to this had attended one of my colleagues with the same type of issues. She was on sick leave from work from October 2014 because of work-related stress and was off for 5 months in total ... It would be my opinion that a further move would be detrimental to her health, particularly in the light of 7 previous moves in the last two and a half years which must be seen to be extremely unsettling' [emphasis added].

63. At a meeting with Ms McIlwrath on 18 August 2015 where the claimant was accompanied by her trade union representative, in response to a question from Ms McIlwrath the claimant intimated that her behaviour was not linked to her depression because no inappropriate behaviour had taken place.

64. On 19 August 2015 the claimant wrote to Tina Dempster to complain about Ms McIlwrath's conduct at the meeting and suggested that she had a prejudice against her.

65. Ms McIlwrath determined that the claimant should be given a written warning valid for two years and that she should complete on-line Diversity training which was then being rolled out to all staff in the department. In reaching her conclusion Ms McIlwrath took account of a number of factors including the GP's letter and the report from Occupational Health. HR Connect issued the decision on 23 September 2015.

66. The claimant appealed the finding of misconduct on 15 October 2015. It fell to Tina Dempster to determine the appeal. She held a disciplinary appeal meeting with the claimant on 22 October 2015. By letter dated 26 November 2015, the claimant was informed that her appeal was rejected by Ms Dempster.

67. On 19 November 2015 the claimant attended a follow-up appointment with her GP who recorded the following - 'boss in work disregarded my letter of advice and she attended occ health who advised the same thing, boss disregarded this also and was intent on moving Ann to another dept. Had to get head of union to attend with her and only reason it didn't go through was the threat of industrial claim which would have been dealt with by [note redacted by claimant]. Boss then said she couldn't have job because it was part time so Ann agreed to go part time [note redacted by claimant]. Was having chest tightness while all this going on has settled again since it has been resolved'.

68. It is notable that the 19 November 2015 was yet another GP's appointment where no record was made of any comment about depression.

69. It wasn't until a GP appointment on 05/04/16 when depression was mentioned again - 'Depression NOS has had before, feels mood low again struggling to keep going, work less stressful on daily basis as not in direct contact with person who caused her all the trouble, though she is in the background and has a go at her every now and again, has taken a tribunal case against them and it will come up soon, hasn't been able to run much because of hand though has been out a few times on her own, finding it difficult to get motivated for that, has avoided running club which she is usually with twice a week. D/w start med, feels she needs this, felt awful on previous meds, try something different. [note redacted by claimant] feeling anxiety, see 4/52-3/5/16'.

70. The claimant obtained a report dated 30 May 2016 from a consultant psychiatrist Dr McGarry who also gave evidence. The report states that the claimant informed Dr McGarry that she, 'had been asked by the Employment Tribunal to seek a psychiatric opinion on whether the Disability Discrimination Act applied to [her]'.

71. Dr McGarry concluded in his report that the claimant, 'appeared to be clinically moderately depressed'. He went on to state that, 'In my opinion, in view of the fact that your depressive illness has continued for most of the last two years, and that it continues to have a significant impact on your day to day activities, requiring referral to psychiatric services [a course recommended by Dr McGarry], the Disability Discrimination Act does come into play in your case. With regard to the longer term, it is the case that you are a woman who has show [sic] a lot of psychological resilience over the years and functioned at a very high level, and I am entirely optimistic that in the medium term - particularly if the very difficult issues regarding work can be resolved - you should make a full recovery and return to good health and the quality of life which you had in the past'.

72. Dr McGarry based his report on an attendance with the claimant on 25 May 2016. The attendance lasted for 1 hour 45 minutes.

73. Dr McGarry prepared the report without access to the claimant's GP records or the GP's letter dated 23 September 2014 addressed to the claimant's employer.

74. This was unfortunate because it meant that Dr McGarry did not have the opportunity to measure the claimant's self-reported history as told to him against the contemporaneous medical records.

75. Given that historically the claimant has been diagnosed with depression and treated for it, it is remarkable that there is so little reference to depression in the GP records over the period when the claimant asserts that it represented for her a disability within the terms of the DDA.

76. During the hearing Dr McGarry's attention was drawn to the GP records as redacted by the claimant. Under cross-examination the doctor maintained his overall opinion nonetheless he accepted that there weren't many medical notes for someone with a long history of depression.

77. Dr McGarry recorded in his report that he asked the claimant, 'if life was worth living and you said that it was, and that you had never at any point had any thoughts of harming yourself'.

78. This denial by the claimant in May 2016 that she had ever had thoughts of self-harm is consistent with the claimant's denial of suicidal ideation in her interview with Occupational Health in December 2014 as noted at paragraph 53 above.

79. At the conclusion of the tribunal hearing both parties spoke to written submissions which they had prepared in order to assist the tribunal. During the course of her submissions the claimant referred for the first time to having felt suicidal. When the tribunal asked the claimant about the incongruity between this submission and what she had told Dr McGarry, the claimant replied that she had not wanted to admit that she was suicidal to Dr McGarry.

80. In a case management decision dated 20 April 2016, Employment Judge Drennan QC made suggestions as to the conduct of the hearing in order to ensure that the claimant had an opportunity to give her best evidence. The tribunal was mindful of that decision during the hearing of this case. Regular breaks in the hearing were taken. Nonetheless the impact of proceedings was such that it became necessary to adjourn for a period of some weeks when the claimant felt so unwell that she was unable to continue and an ambulance was called.

CONCLUSION

81. On a human level, the tribunal has a great deal of sympathy for the claimant. She is a hard-working individual who sets high standards for herself and expects the same from others. Difficulties have arisen at work which have caused much distress and unhappiness to her.

82. This case however does not turn on whether the tribunal has sympathy for the claimant but on whether the legal tests have been satisfied in order that the tribunal should make an award in the claimant's favour.

83. The first issue is whether or not the claimant has satisfied the tribunal on the balance of probabilities that at the relevant time she was suffering a disability within the meaning of the DDA. If the claimant fails to do so then it is unnecessary for the tribunal to go on to make findings in respect of allegations of discriminatory behaviour which the claimant has raised in respect of the respondent's conduct towards her.

84. The tribunal determines the case on the basis of the evidence which the parties have chosen to present to it. The claimant was advised firmly by the Vice President at the April 2016 Case Management Discussion that it was for her to establish that at the relevant times she was disabled within the meaning of the DDA. At that time the Vice President also directed that the claimant produce her GP notes which, 'She may redact, to the most limited extent possible, any reference to matters which are entirely unrelated to mental ill-health or depression or stress'. The redacted GP notes placed before the tribunal are those which the claimant chose to file in these proceedings.

85. In view of the claimant's evidence as to her deteriorating mental health from January 2014 the absence of any attendance at the GP in 2014 before 23 September 2014 is surprising. No medical evidence has been produced to support the claimant's assertion to Mr Pauley that in August 2014 she was suffering clinical depression. On the basis of the redacted records produced by the claimant, she had not seen her GP in respect of her mental health since 2012 when she was taken off her medication.

86. The claimant says that she suffered a mental health breakdown at the office on 19 August 2014, yet it was not until 23 September, five weeks later, that she attended at the GP. The GP on that occasion makes no record of being told about a mental health breakdown at the office. The claimant is a lady who has previously been treated by her doctor for depression. She is someone who was accustomed to discussing her mental health with her doctor when necessary. The medical notes record that she told the GP about her 'low mood' on 23 September 2014. On the balance of probabilities the tribunal is satisfied that if the GP had been told about a mental health breakdown on 19 August, some reference to it would have appeared in the medical notes. No adequate reason has been offered as to why the claimant should not have told the GP about such a significant event relating to the claimant's mental health if it had occurred in the way described by the claimant.

87. The tribunal hearing was adjourned part-heard and over the course of that adjournment the claimant obtained the GP letter dated 25 January 2017 which is referred to at paragraph 33 above. This letter is the only medical evidence produced in respect of the claimant's history of depression prior to the GP record in respect of an attendance by the claimant on 27 February 2012. The letter does not contain any information from which the tribunal could form an assessment as to whether there is medical evidence to support the assertion that the claimant's historic depression was a condition which had a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.

88. The claimant asserts in her statement that she had a 'complete mental health breakdown' in October 2014, leaving her 'housebound' for 4 months. This stands in contrast to the GP note for 7 October 2014 which records, 'Emotional, loss of interest and motivation but still forcing herself to do things, runs'. The medical notes for the period October 2014 - March 2015 make no reference to the claimant being 'housebound'.

89. It is the claimant's GP not Occupational Health which has the primary responsibility for treating her condition. The claimant did not give an adequate reason to the tribunal as to why the GP's records do not fully reflect important facts relating to the extent of the impairment which she says she was suffering at the time. On the balance of probabilities the tribunal finds that the GP would have recorded these significant matters described by the claimant relating to the impact of the claimant's mental health condition on her day-to-day life.

90. It is of concern that in her final oral submissions the claimant referred to having felt suicidal when in fact this directly contradicts what she had told Occupational Health and Dr McGarry. The claimant spoke to her GP and Occupational Health on multiple occasions about personal details relating to her condition. She has forcefully described in her written statement and oral evidence about what she says is the extent of the impairment which she has suffered. This has involved the disclosure of personal and intimate information. The claimant spoke to Dr McGarry about the most intimate things. The tribunal finds that no adequate explanation was given as to why the claimant did not speak to Dr McGarry about suicidal thoughts.

91. The word 'depression' does not appear in the GP notes from 23/09/14 until the entry on 05/04/16. There is a reference to 'low mood' on 23/09/14. The tribunal rejects the written submission of Mr Sands that a recording of 'low mood' is 'something different from depression'. It may or may not be depending on the circumstances and context. 'Low mood' is potentially a symptom/description of depression. Equally, the tribunal accepts that in certain contexts the word 'stress' may be utilised to describe symptoms of depression. It is however surprising that the claimant should not have expressly referred to depression in her contacts with her GP. This is particularly so in view of both her own history of depression and the fact that she told Mr Pauley in August 2014 that she was suffering from 'clinical depression'. The claimant freely and frequently described her condition in evidence as depression. It is unsatisfactory that at the relevant time there is no record of her describing it as such to her GP.

92. In view of the claimant's history of depression, the tribunal is satisfied on the balance of probabilities that had the claimant described her condition to the GP in terms of 'depression' then that word would have been recorded by the GP in the medical notes.

93. The GP medical notes refer to 'stress at work' and it was that which formed the basis of the series of sick notes which were given to the claimant from October 2014 to March 2015. The medical notes also refer extensively to the difficulties which the claimant was experiencing with certain individuals at work. In her e-mail to Mr Pauley dated 12 November 2014 the claimant refers to requiring leave because of work place stress. The GP's letter dated 14 August 2015 referred to at paragraph 60 above describes the period of sick leave from October 2014 as being due to 'work-related stress'. No mention of depression is made in that letter which was intended to inform the claimant's employer and occupational health.

94. It is of note that in the GP record for 5 April 2016 the word 'depression' is used to describe the claimant's presentation at that date when medication was prescribed. This contrasts with the earlier records for 2014/2015 where the word does not appear in the records.

95. The Occupational Health assessments reflect the concerns which the claimant had about working with certain individuals. These are also reflected in the disclosed medical records. It is clear that much unhappiness and distress has been caused to the claimant by working relationships and events at work. She was off work for a five month period due to work place stress before returning to work. On the evidence presented to the tribunal however, the tribunal is not satisfied on the balance of probabilities that the difficulties experienced by the claimant at the relevant time fulfilled the statutory definition of disability.

96. The claimant has at times made assertions about matters which the tribunal would have been expected to find reflected in the medical records but which do not appear there.

97. The tribunal has considered very carefully the evidence of Dr McGarry. The tribunal accepts his opinion that as at May 2016 the claimant was clinically moderately depressed. This is a conclusion which was reached following a contemporaneous medical examination by himself and is consistent with the GP record for 5 April 2016 which refers expressly to 'depression' and notes the starting of the claimant on medication for the condition.

98. The tribunal does not however accept Dr McGarry's conclusion that this is a continuum of a 'depressive illness [that] has continued for most of the last two years'. At the time that Dr McGarry saw the claimant he had not seen her GP records. He was reliant entirely on the claimant's self-reporting. He did not have an opportunity to explore with the claimant either the reasons for the apparent paucity of medical records in respect of her condition or the apparent significant omissions about the impairments she had suffered, eg the absence of reference to what she described as a mental health breakdown on 19 August 2014, or the fact that the claimant now says that she was not honest with Dr McGarry when she told him that she had never had thoughts of self harm.

99. The fact that this decision is based on an assessment of the evidence on the balance of probabilities has been stated already. The decision reached in the case is limited in that it can only be a decision on the evidence as presented during the hearing. The tribunal is acutely aware of how disappointing the claimant will find the decision to dismiss her claims. It can only express the hope that in time the claimant will be able to overcome that disappointment.

100. In concluding this decision the tribunal notes the support and assistance which has been given to the claimant by her son acting as her McKenzie friend. The tribunal is grateful for the assistance which Mr McCracken provided the tribunal throughout proceedings. The hearing cannot have been an easy experience for the claimant but in the most stressful of circumstances she has endeavoured to conduct herself with dignity and politeness throughout.

Employment Judge:

Date and place of hearing: 9, 10, 11 January; and

1, 2, 3 March 2017, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McCracken v Department of Health [2017] NIIT 00311_16IT (07 July 2017) URL: http://www.bailii.org/nie/cases/NIIT/2017/00311_16IT.html Cite as: [2017] NIIT 00311_16IT, [2017] NIIT 311_16IT

Industrial Tribunals Northern Ireland Decisions