THE INDUSTRIAL TRIBUNALS
CASE REF: 342/03
CLAIMANT: Rodney Higginson
RESPONDENT: Short Brothers Plc
DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant was not a person having a disability for the purposes of Section 1 of the Disability Discrimination Act 1995 in 2002 and the claimant's claim for disability discrimination is dismissed by the tribunal, without further order.
Constitution of Tribunal:
Chairman (Sitting Alone): Mr J V Leonard
Appearances:
The claimant appeared and represented himself.
The respondent was represented by Mr R Murphy of Engineering Employers' Federation.
THE ISSUE TO BE DETERMINED
- This Pre-Hearing Review was conducted by a chairman sitting alone on foot of Rule 18(2)(a) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005. The claimant, having issued proceedings before the tribunal claiming unlawful discrimination on grounds of disability against the respondent, the matter was listed to determine the following issue:- "Whether the claimant had a disability within the meaning of the Disability Discrimination Action 1995 in 2002". From inspection of the claimant's originating application, it was apparent that the discrimination on grounds of disability alleged by the claimant against the respondent was connected with events leading up to and including the claimant's redundancy which took place in November of 2002. In accordance with the terms of the preliminary issue as listed, the question of whether or not the claimant had a disability for the purposes of the Disability Discrimination Act 1995 had to be determined with reference to the date of the alleged act or acts of discrimination (see Cruikshank -v- VAW Motorcast Ltd [2002] IRLR 24). Accordingly the tribunal's focus in this case was upon whether there was any or sufficient evidence to support the conclusion that the claimant had a disability for the purposes of the Disability Discrimination Act 1995 at the time of discrimination alleged, 2002.
THE APPLICABLE LAW
- It might be useful to set out the applicable law at this point. The issue for determination is whether or not the claimant had a disability within the meaning of the Disability Discrimination Act 1995, as amended. In determining that question, the tribunal considered the applicable law and a number of leading authorities, including those cited in submissions. The material statutory provisions are to be found in Sections 1, 2 and 3 of the Disability Discrimination Act 1995 ('the Act') and in Schedules 1 and 2 of the Act. As far as relevant, these are as follows:-
"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 ability to carry out normal day-to-day activities.
2. - (1) The provisions of this Part and Parts II and III apply in relation to a person who has had a disability as they apply in relation to a person who has that disability.
3. - (1) The Secretary of State may issue guidance about matters to be taken into account in determining –
(a) whether an impairment has a substantial adverse effect on a person's ability to carry out normal day-to-day activities; or
(b) whether such an impairment has a long-term effect.
(2) -
(3) A tribunal or court determining for any purpose of this Act, whether an impairment has a substantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities, shall take into account any guidance which appears to it to be relevant.
Schedule 1
1. – (1) 'Mental impairment' includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness.
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.
(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.
4. – (1) An impairment is to be taken to affect the ability of the person concerned to carry out normal day-to-day activities only if it affects one of the following –
(a) mobility;
(b) manual dexterity;
(c) physical co-ordination;
(d) continence;
(e) ability to lift, carry or otherwise move everyday objects;
(f) speech, hearing or eyesight;
(g) memory or ability to concentrate, learn or understand; or
(h) perception of the risk of physical danger.
The "Guidance on matters to be taken into account in determining questions relating to the definition of disability" ("the Guidance") provides practical guidance on the meaning of "substantial" adverse effect, the meaning of "long-term effects" and "recurring effects" and the meaning of "normal day-to-day activities". The tribunal considered the provisions of the Guidance (especially section C20, on the issue of "Memory or ability to concentrate, learn or understand") in reaching its determination in this case.
The tribunal shall further refer to case law authorities below. It is to be noted that the recent legislative changes made under the Disability Discrimination (Northern Ireland) Order 2006 do not apply to this case.
THE SOURCES OF EVIDENCE
- The claimant chose not to give oral evidence himself. The claimant called Mr Stephen Herron being a Cognitive Behavioural Nurse Therapist, Dr Henry McKee being the claimant's General Practitioner, and Dr Anne Scott being a Consultant Psychiatrist, to give evidence. The respondent's representative called Dr Robert Jenkinson being Director of Health and Safety and of the Occupational Health Department of the respondent, to give evidence. The tribunal had before it documentary evidence including correspondence written by Mr Herron to the claimant's General Practitioner, Dr McKee, a copy of a letter directed by the General Practitioner to a firm of solicitors in connection with the claimant, and a copy of a letter concerning the claimant directed by Dr Scott to Dr McKee.
THE TRIBUNAL'S FINDINGS OF FACT
- In consequence of the documentary and oral evidence, on the balance of probabilities the tribunal made the findings of fact set out below. It is normally the case in decisions of an industrial tribunal that the tribunal records findings of fact and does not detail the evidence. An exception to this is in cases of disability discrimination where it is regarded as necessary in order to explain findings of fact to record some detail of the evidence supporting such findings of fact by reference to the specific oral and documentary evidence which was before the tribunal. The tribunal intends to follow that approach in this case.
- In his claim the claimant claimed that he commenced employment with the respondent on 1 September 1986 and attained promotion eventually to Customer Services Manager in September 1999. The claimant was absent from work from 20 August 2001 and thereafter until his employment terminated in early November 2002.
- Dr Jenkinson's evidence was that his first consultation with the claimant concerning events material to this case was on 23 August 2001 when he found the claimant to be complaining of tiredness, lack of enthusiasm and of being tense. Thereafter, Dr Jenkinson saw the claimant on five or six occasions over the period of time from August 2001 to 9 September 2002, at which point the claimant had been absent from work for just over one year.
- The claimant's General Practitioner, Dr McKee, informed the tribunal that, material to the issues in this case, he had first had a consultation with the claimant on or about 9 February 2001 when Dr McKee recalled that he noted that the claimant had complained to him of being tense and anxious, with a suggestion of weight loss. Dr McKee also appears to have recorded that the claimant reported getting "funny looks" from people and was suspicious that his drinks may have been "spiked" at work. Whilst Dr McKee appears to have noted these things, regrettably the tribunal did not have before it copies of GP notes and records; these might certainly have been of some assistance to the tribunal. Clearly the doctor did not think it appropriate to prescribe medication at this stage for there is no evidence that he did at this point.
- The claimant again saw Dr McKee in August 2001. On this occasion the claimant complained to the doctor of stress at work, and depression. At that time the doctor prescribed the anti-depressant drug Effexor (or Efexor), which the tribunal understands is an anti-depressant medication designed to treat or alleviate the symptoms of clinical depression. The doctor also at that time described a drug called "Half Inderal LA", which the tribunal understands is a type of medicine called a "beta-blocker" and which is designed to treat, amongst other things, anxiety.
- At that stage Dr McKee thought that the most appropriate course was to refer the claimant for screening regarding the suitability of Cognitive Behavioural Therapy. There was some delay in arranging an appointment but eventually on 25 March 2002 the claimant was seen by Mr Stephen Herron, a Cognitive Behavioural Nurse Therapist.
- It is perhaps worth quoting in some detail from a letter dated 18 April 2002 sent by Mr Herron to Dr McKee concerning the claimant : -
"As you are also aware his depression manifested itself in a very bizarre way. He started to believe that others were scheming against him and as he searched he found more and more evidence of this.
However, on questioning the evidence it soon becomes apparent that he has in fact few concrete examples of being disliked or plotted against and instead his ideas seemed based on notion and distortion.
I obviously considered that we might be dealing with a paranoid personality disorder or in fact something more sinister such as an early paranoid schizophrenic episode. However, Rodney's personality remains intact and prior to 1999 there was no evidence that the (sic) had a distrusting nature. There certainly does not appear to be any evidence of paranoia pre-1999.
In addition he seems to be doing very well on Efexor antidepressant medication and I believe that this is even further evidence that what we are dealing with here is a depressive episode which precipitated quite severe cognitive distortions. …. Rodney appears a very well motivated gentleman who seems more than able to tackle his considerable difficulties.
Finally, he is obviously concerned about employment, however I reassured him that from preliminary assessment I could see no reason why he could not make a full and complete recovery and return to work. I did however warn him against doing so until he was equipped with the skills necessary to ward off his catastrophic dichotomous and distorted thinking."
- Mr Herron indicated that he could see the claimant in early September (2002) in order to proceed with the suggested cognitive behavioural therapy. In his oral evidence to the tribunal Mr Herron informed the tribunal that he believed that the claimant was suffering from a depressive illness and it was unclear to him whether or not the claimant was also under paranoid ideation. Mr Herron further suggested to the tribunal that he had two possible hypotheses. These were either that the claimant was suffering from a depressive disorder with psychotic features which he classified as being in the upper range or, alternatively, that the claimant was a person with a paranoid personality disorder who misinterpreted benign events as being threatening and dangerous. If asked to choose between the two, Mr Herron confirmed to the tribunal that he preferred the assessment as being that of a depressive disorder with psychotic features. When asked by the claimant concerning the effect of this condition upon the claimant, Mr Herron confirmed his view to be that the claimant's daily living had been mildly impaired on account of insomnia, hyper vigilance and over-analysis in daily life. The claimant was "unwell" in March 2002 and in September and October of 2002, according to Mr Herron.
- Dr Jenkinson's evidence concerning this particular time was that Dr Jenkinson had seen the claimant on 9 May 2002 and on that occasion the claimant had reported to him that he had had a good session with Mr Herron and that the cognitive behavioural therapy was due to start on 5 September 2002. At that 9 May 2002 consultation Dr Jenkinson's impression was that the claimant's mood was improving, that he was taking exercise and receiving a benefit from that, and that he was helping himself through "bibliotherapy" (reading about the issues of concern). Dr Jenkinson saw the claimant again on 12 August 2002 and the claimant reported to Dr Jenkinson that he was feeling better and that his concentration was normal.
- Dr Jenkinson again saw the claimant on 9 September 2003 (apparently the day after the claimant had commenced the cognitive behavioural therapy) and the doctor recorded that the claimant had no difficulty with either memory or concentration. Dr Jenkinson felt at that stage that it was appropriate to have the claimant report to the respondent's Human Resources Department in order to discuss a phased return to work. It appears that Dr Jenkinson did not observe the claimant to be in any way adverse to the suggestion of a phased return to work at the time. When asked how he would describe the claimant at that stage Dr Jenkinson stated, "quite well" and the doctor made the observation that there had been considerable progress since March 2002.
- Mr Herron wrote to Dr McKee a letter dated 28 May 2003 recording that the claimant had reported to Mr Herron that he had been symptom-free up until his last appointment on 27 May 2003. Mr Herron reported to Dr McKee that on that occasion during the course of the interview the claimant had disclosed to Mr Herron what appeared to the latter to be rather bizarre suggestions that Mr Herron was "testing him to check out his sexuality". As a result of this Mr Herron concluded that the claimant was then a person who was suffering from some form of paranoid delusional illness. Accordingly, Mr Herron recommended to Dr McKee that the claimant be referred to a Consultant Psychiatrist.
- As a result of this correspondence, Dr McKee proceeded to refer the claimant to a Consultant Psychiatrist, Dr Anne Scott. Dr Scott saw the claimant on 4 December 2003. In consequence of that consultation Dr Scott then wrote a letter to Dr McKee dated 16 January 2004 which (although Dr Scott had little personal recollection of the case at the time of the tribunal hearing), was confirmed to the tribunal by Dr Scott as constituting her views on the case. Dr Scott stated in the letter of January of 2004 that the claimant reported no current symptoms. Dr Scott did not consider the claimant to be either anxious or depressed at the time of the consultation in December 2003. There was no "paranoid ideation or other psychotic phenomenology". The "impression" (as she put it) recorded by her was that the diagnosis was "probably depressive illness, with some psychotic features (paranoid ideation), now resolving with treatment". Dr Scott felt that the claimant should continue taking Efexor for another year or so and should continue his cognitive behaviour therapy until completion with Mr Herron. Dr Scott had no plans for a review and indeed did not see the claimant thereafter.
- The claimant's employment with the respondent was terminated on grounds of redundancy with effect from 8 November 2002. Both before and after that time, he continued to take medication prescribed by his General Practitioner (Efexor, at a low dosage) and he also continued with cognitive behavioural therapy. Mr Herron then wrote to Dr McKee a letter dated 5 May 2004 confirming that the claimant had just completed the course of cognitive behavioural psychotherapy for depressive symptoms and some paranoid ideation. At the last appointment (May 2004) the claimant had remained symptom free and had been offered by Mr Herron a further six month review, if required.
- The tribunal ought to make some comment at this stage regarding a letter dated 6 January 2006 addressed by Mr Herron to Murphys', Solicitors. The respondent's representative strenuously objected to that letter being introduced into evidence. Having heard the arguments on the matter, the tribunal preferred to admit the letter into evidence and to deal with submissions concerning the matter of the proper weight to be attached to the letter. Having reviewed both the oral and written submissions on part of the respondent's representative concerning the matter of this letter, the tribunal is of the view that no weight whatsoever should be attached to the content. The tribunal does not intend to refer further to the letter in this decision. It is also perhaps worthy of making the comment at this stage that whilst some of the documentation seen by the tribunal purports to draw conclusions as to whether or not the claimant had a "degree of disability", it is quite clear that disability for statutory purposes is a matter for the tribunal to determine. Accordingly, the tribunal does not intend to refer to any portion of the documentary or oral evidence which comments directly on whether the claimant did or did not have a disability.
- In the absence of the claimant giving oral evidence, the tribunal's conclusions concerning the effect of any of the foregoing upon the claimant are of necessity confined to those facts which can be gleaned from the documentation and from the oral evidence of the three medical practitioners and of Mr Herron.
THE TRIBUNAL'S DETERMINATION
- This has been a rather difficult case for the tribunal to determine for a number of reasons. As mentioned, in the absence of direct evidence from the claimant, the tribunal has been required to reach conclusions of fact from the various sources of evidence available; the tribunal has had some difficulty in so doing. The tribunal has had placed before it some very helpful and detailed written submissions on the part of both the claimant and the respondent's representative.
- The claimant's submissions invite the tribunal to conclude that the evidence of Dr Scott, Dr McKee, and also of Mr Herron, ought to lead the tribunal to a position of being able to conclude that there was a clear diagnosis of severe depressive illness with psychotic symptoms, which illness would be categorised as a mental illness specifically mentioned in a recognised classification, the World Health Organisation's International Classification of Diseases, ICD-10 under classification ICD F32.3. This is a mental impairment. Further, the duration of that mental impairment ought to be taken by the tribunal to subsist from August 2001 to 2006 at least. The evidence also ought to permit the tribunal to conclude that there was an adverse effect that was substantial. Thus the claimant had a disability for the purposes of the 1995 Act.
- Turning to the respondent's representative's submissions, part of the submissions invites circumspection with which the tribunal ought to have regard to much of the evidence placed before the tribunal to endeavour to assist the claimant's case. In the written submissions, the respondent's representative, Mr Murphy, has submitted (going to the matter of weight) that the evidence of Mr Herron is not that of a diagnostician. Further (on the same point), the letters sent by Mr Herron to Dr McKee are not medical reports (prepared in contemplation of a court or tribunal), but rather letters only and, indeed, some of the terminology contained in such letters has been described by Mr Murphy as being "alarmist".
- Mr Murphy suggests that, set against the somewhat alarmist language used in the letters, the tribunal ought to note the very positive language used by Mr Herron also in these letters; these two are difficult to reconcile, Mr Murphy suggests, and thus the documentary evidence is not particularly helpful to the tribunal. In contrast to the documentation, Mr Herron's oral evidence to the tribunal is much more "muted". It indicates significant progress on the claimant's part. For example, when asked by the claimant about daily living, Mr Herron's response was that in his opinion it was "mildly" impaired (only).
- Mr Murphy has also argued that the tribunal should exercise circumspection regarding the evidence of the Consultant Psychiatrist, Dr Scott. He submits that in the course of the tribunal hearing Dr Scott barely recalled the claimant at all. She however had endorsed the content of the letter which she had sent to Dr McKee a short time after the consultation with the claimant in December 2003 (again, that was a letter and not a medical report prepared in contemplation of the tribunal). At that stage Dr Scott observed that the claimant's mood was reactive and she did not consider him to be either anxious or depressed at the time. There was no paranoid ideation or other psychotic phenomenology. Dr Scott therefore had to rely upon information that had been reported to her when arriving at her "impression" (as she put it – and again Mr Murphy invited the tribunal to note that description) that the diagnosis was probably depressive illness, with some psychotic features (paranoid ideation) which was then resolving with treatment. Clearly Dr Scott was not dealing with a personality which required a further review on her part. Mr Murphy urged the tribunal to note the circumstances of Dr Scott's letter and oral evidence and to look at the matter of weight accordingly.
- Turning then to the evidence of Dr McKee, the claimant's General Practitioner, Dr McKee's oral evidence was regrettably presented to the tribunal without the tribunal being aided by reference to any General Practitioner's notes and records. These latter would very probably have been of assistance. Dr McKee stated that he had seen the claimant on 9 February 2001 when he noted the claimant to be tense and anxious and suffering from tiredness; the claimant believed that people at work were giving him "funny looks" and that his drink may have been "spiked". No medication was prescribed by the doctor at that time. Dr McKee did not see the claimant again until August 2001, when it appears that the claimant reported similar symptoms to the doctor. As a result, Dr McKee prescribed both the anti-depressant drug, Efexor, and also the beta-blocker Half Inderal LA. The Efexor dosage was reduced a short time later to the minimum dose, so the tribunal understands, of 75mg per day. The tribunal is not certain as to how many times Dr McKee consulted personally with the claimant thereafter. However, in August of 2001 Dr McKee referred the claimant for cognitive behavioural therapy assessment with Mr Herron. Thereafter the course of cognitive behavioural therapy commenced and continued until its conclusion some time afterward, in 2004. The tribunal, based upon the evidence, believes that the involvement of Dr McKee with the claimant from August 2001 and onwards was probably confined to the prescription of a "maintenance dose" (as it was referred to in the tribunal) of the anti-depressant drug, Efexor, and to receiving whatever reports Mr Herron might make to him regarding the progress of the cognitive behavioural therapy sessions.
- Later, Dr McKee was instrumental in referring the claimant to the Consultant Psychiatrist, Dr Scott, once Mr Herron had reported to Dr McKee on foot of the letter of 28 May 2003 the events of the previous day. These apparently seemed to have caused somewhat of a degree of alarm on the part of Mr Herron. Mr Herron thus recommended to Dr McKee that the claimant might be referred to a Consultant Psychiatrist and Dr McKee concurred with that course and made the referral.
- The consultation with Dr Scott took some time to arrange. By the time the claimant saw Dr Scott, any symptoms which might perhaps have existed had resolved, as far as Dr Scott's observations were concerned. Dr Scott reported back to Dr McKee on the basis of her impression of what had been the earlier position, prior to her seeing the claimant. Thus Dr Scott recommended continuing with the prescription of Efexor and the continuance of the cognitive behavioural therapy.
- The evidence of Dr Jenkinson was that of a doctor experienced in occupational health matters (which the doctor confirmed to the tribunal included a very substantial degree of involvement with and experience of mental health issues). The doctor had seen the claimant in August of 2001, when the claimant had complained to the doctor of being tense and fatigued. Thereafter, Dr Jenkinson saw the claimant on five or six further occasions, all of which appeared to indicate a gradual and incremental improvement in the claimant's state of health and wellbeing. At the consultation which took place on 9 September 2002, the doctor noted that the claimant had seen Mr Herron the previous day. Dr Jenkinson was at that stage of the opinion that the claimant was fit to commence a phased return to work; Dr Jenkinson considered that the claimant was both mentally and physically capable of returning to work in consultation with the respondent's Human Resources Department. There was no indication that Dr Jenkinson had had any further involvement with the claimant thereafter, up until the date of termination of the employment in November of 2002.
- Whilst the tribunal's attention throughout these proceedings has been primarily on the claimant's mental state of health, there was one issue which emerged in the course of the hearing, rather curiously it must be said, regarding the physical matter of the claimant's continence. This emerged, not at any time having been raised by him earlier, in the course of the claimant's own cross-examination of Dr Jenkinson. The claimant endeavoured to call into question the fairness of Dr Jenkinson's assessment of the claimant's medical condition in respect of all issues which might bear on the disability matter. When he was questioned as to whether or not Dr Jenkinson had tested or enquired as to the issue of continence as far as the claimant was concerned, Dr Jenkinson confirmed that he had had no reason to do so. To make such enquiry without reason would have been intrusive and unnecessary. The question on the claimant's part appears to have emerged as a result of an issue relating to a particular document. That document was introduced into evidence. However, as the provenance of that document in terms of its creation, intention and destination was not subject to any proof, the tribunal intends to attach no weight to that. Accordingly, the tribunal does not intend to make any observation upon the issue of continence in this case. There was certainly no direct evidence given by or on behalf of the claimant regarding continence.
- The question of whether or not a person is disabled for the purposes of the 1995 Act has to be determined by reference to the date or dates of the alleged act or acts of discrimination (see Cruikshank -v- VAW Motorcast Ltd referred to above). The period of time under scrutiny by the tribunal in this case occurred therefore in the year 2002, as has been mentioned in the formulation of the preliminary issue. However the tribunal can look both before and after that to endeavour to resolve issues relating to the nature of the alleged impairment and the matter of possible long-term effect.
- It is well-settled that there are four questions which have to be considered by any tribunal in this type of a case. These derive from the authority of the case of Goodwin -v- The Patent Office [1999] IRLR 4 where the EAT stated that a tribunal should consider the following four questions –
1. Does the claimant have an impairment which is either mental or physical?
2. Does the impairment effect the claimant's ability to carry out normal day-to-day activities in one of the respects as set out in Schedule 1, paragraph 4(1) of the 1995 Act and does it have an adverse effect?
3. Is the adverse effect substantial?
4. Is the adverse effect long-term?
- It is also clearly established that the burden of proof is on the claimant in any such case (see Ross -v- Precision Industrial Services Limited and Dupont (UK) [2005] NICA 25 and Morgan -v- Staffordshire University [2002] IRLR 190).
- Examining the first question (did the claimant at the material time have an impairment which was either mental or physical?), it appears to be commonly accepted by both Dr Jenkinson and Dr McKee (respectively the Occupational Health Physician and the General Practitioner), that the claimant at some time in 2001 encountered issues that caused him to visit his General Practitioner and also to be seen by the Occupational Health doctor. These issues seem to have related to stress which appears to be work-related. The claimant also appears to have had some issue in 2001 that resulted in his, for example, believing that his drink was being "spiked". In the absence of there being any evidence of a physical impairment, the tribunal's focus must be on the evidence of possible mental impairment. There is no definition of "impairment" in the 1995 Act. In seeking assistance the tribunal takes into account the Guidance (on the issue of "memory or ability to concentrate, learn or understand" and "perception of the risk of physical danger") in reaching its determination in this case.
- As mentioned above, (as this is the applicable law in respect of this case) Schedule 1, paragraph 1(1) of the 1995 Act provides that "mental impairment" includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness; that is an illness which is recognised by a respected body of medical opinion either by proof that the mental illness is specifically mentioned in a recognised classification (such as the World Health Organisation's International Classification of Diseases, ICD-10), or proof that the mental illness is specifically mentioned as such in a publication which is of very wide professional acceptance, or proof by other means of a mental illness recognised by a respected body of medical opinion.
- As was commented in submissions made by Mr Murphy, some of the medical evidence called to assist the claimant encountered difficulty in providing a precise classification for the benefit of the tribunal. There was certainly evidence given by Dr McKee that he assessed the claimant as suffering from "depression". However, as has been made clear in the decision of Morgan -v- Staffordshire University (mentioned above) such terms as "stress" or "depression" will not of themselves suffice for the purposes of the definition under the 1995 Act unless connected to evidence of the existence of a clinically well recognised illness. It is at this point that the tribunal encountered considerable difficulty with the evidence in the case. For example, the claimant's submission suggests that the tribunal can conclude with ease that his three witnesses are all providing the necessary evidence, or evidence of the necessary weight, to enable the tribunal to conclude without difficulty that, not only was there a clinically well recognised illness, but also that the illness as reported to the tribunal was diagnosed in each case as being "severe depressive illness with psychotic symptoms", which illness would be categorised as a mental illness specifically mentioned in WHO, ICD-10 under classification "ICD F32.3." The tribunal did not observe that evidence from the witnesses (note for example Dr McKee's evidence when the Doctor endeavoured, with some vagueness and obvious difficulty, to classify the illness as "ICD-10 in the 60's", as it was put).
- The one medical practitioner who might (had circumstances been rather different) have been able to provide to the tribunal the required expert evidence was Dr Scott who is a Consultant Psychiatrist of considerable experience. However the only real assistance that Dr Scott could provide to the tribunal was to record that she had consulted with the claimant in December of 2003 and by that stage the claimant was neither anxious nor depressed; there was no paranoid ideation nor other psychotic phenomenology. Dr Scott's impression of the situation was what might be termed historical in that it depended upon reported circumstances which were suggesting the possibility of depressive illness at some time earlier, with some psychotic features. That evidence did not greatly assist the tribunal in determining whether or not the claimant was suffering from some degree of a mental impairment as early as February 2001. We do know that the claimant was then assessed by Dr McKee in August 2001, resulting in medicine being prescribed, but Dr Scott's evidence does not really contribute much to the matter.
- Whilst the tribunal is of course cognisant of the fact that Dr McKee felt it appropriate to prescribe anti-depressant medication and to refer the claimant for cognitive behavioural therapy from August 2001 onwards, the medical practitioner did not greatly assist the tribunal by endeavouring to relate the cause of the apparent illness or difficulty which the claimant was then experiencing to the matter of a clinically well recognised illness. Indeed Dr McKee very forthrightly suggested to the tribunal that this was a difficult case to put into any specific categorisation. Hence lies the tribunal's own difficulty (which difficulty was recognised in the case of Morgan -v- Staffordshire University mentioned above, for the tribunal can only be assumed to have a rudimentary knowledge and understanding of medical matters and appropriate classification and evidence needs to be helpful and specific as regards the nature of any impairment alleged) .
- This matter of impairment is of course an issue which the tribunal must determine in order to apply the statutory test. Determination has been difficult. On balance, looking at the weight of the evidence and not without considerable difficulty, the tribunal determines that the claimant was more probably than not suffering from a mental impairment, being a depressive illness potentially capable of classification as such. It is the case that Dr McKee, alone and when questioned in that regard, endeavoured to comment upon a classification, albeit with some vagueness and difficulty, as being, "ICD-10 in the 60's", as the Doctor put it. Whilst that impairment might have had its roots earlier, this appears to have attained a degree of significance such that in August of 2001 the claimant's General Practitioner felt it appropriate to prescribe a low dosage of anti-depressant medication and also to refer the claimant for cognitive behavioural therapy. The illness appears to have been some manner of a depressive illness. There might also have been certain associated psychotic symptoms but again classification was unsatisfactory in the evidence. The tribunal's determination in answer to the first question is therefore that the claimant did suffer from a mental impairment with onset of any degree of significance probably being recorded around August of 2001.
- The tribunal then turns to the next question (does the impairment effect the claimant's ability to carry out normal day-to-day activities in one of the respects as set out in Schedule 1, paragraph 4(1) of the 1995 Act and does it have an adverse effect?) Here, the tribunal encountered even more difficulty with the evidence. Although that was not stated with any degree of clarity, the suggestion was that the effect upon the claimant's ability to carry out normal day-to-day activities was connected to memory and to concentration. In choosing not to give evidence personally, the claimant deprived the tribunal of the opportunity to assess the effect, if any, that the mental impairment might have had on the claimant. The tribunal was faced with evidence on the part of both Dr McKee and Mr Herron which in certain respects it was compelled to treat with circumspection. In the absence of having sight of the GP notes and records which might possibly have recorded in a contemporaneous manner any symptoms or other matters of note reported to the Doctor (including any relating to either memory and concentration), the evidence was rather vague and unspecific. Whilst the tribunal is aware that the claimant was absent from work and was receiving medication in the latter part of 2001 and perhaps throughout 2002 (although no medical records made that entirely clear) up until the date of termination of employment, there was insufficient specific evidence to assist the tribunal in assessing the claimant's status.
- One of the key elements of disability is that the impairment must be determined to
have a substantial adverse effect on individual's ability to carry out normal day-to-day activities; the effect must be both adverse and substantial (see Swift -v- Chief Constable for Wiltshire [2004] IRLR 540). A substantial effect is one which is more than "minor" or "trivial". Whether or not adverse effects are "substantial" is very much a question of fact for the tribunal to determine on the basis of any evidence before it. It has to be said that that issue was not fully and properly addressed by the claimant. A similar comment can likewise be made regarding whether or not the effect was "adverse". The focus of attention of the tribunal ought to be not simply on whether or not the individual can undertake particular activities but it is important to consider how any activities are done (see again Goodwin -v- The Post Office). Here, the tribunal was faced with a considerable lack of evidence. In the absence of the claimant himself giving evidence, or in some way adducing evidence from some other cogent source, the tribunal finds itself quite unable to determine this issue with any degree of precision.
- Coupled with the considerable difficulty in assessing, firstly, the precise nature of the adverse effect and, secondly, whether or not the adverse effect was substantial, it is equally difficult for the tribunal to assess the term or duration of any alleged adverse effect. That is for the reason that this latter can only be readily and properly determined once the nature of what might be termed the "adverse effect" issue and the "substantial" issue have been determined. If the tribunal had been able in this case to conclude, firstly, that the claimant's ability to carry out normal day-to-day activities was adversely affected and, secondly, that the adverse effect was substantial, the tribunal would certainly have had considerable further difficulty in assessing the duration of the term of such adverse effect. Whilst the claimant was in receipt of prescribed medication and was undergoing a period of cognitive behavioural therapy, the evidence of Dr Jenkinson (which carried considerable weight as far as the tribunal was concerned) was that the claimant was assessed as being fit to return to work, on a staged basis, by September of 2002.
- The tribunal is unclear as to the precise reasons why the claimant did not return to work in the latter part of 2002 save that events appear to have superseded the matter with the redundancy of the claimant being concluded in early November of that year. There was then evidence of some encounter between the claimant and Mr Herron in May 2003 which caused Mr Herron to report the matter to Dr McKee and thence caused the referral to Dr Scott. 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. In terms of the issue of long-term effect, and recurrent effect (as the claimant appears to have been symptom free for some time prior to May 2003) the tribunal is required to examine a possible linkage between the effect earlier encountered in 2002 and the incident that occurred in May 2003 to see if there might have been a recurrence of the specific adverse effect of the mental impairment. However, in view of the nature and quality of the evidence, in examining the issue of possible long-term and recurrent effect the tribunal is quite unable to conclude with any degree of certainty that any qualifying impairment had lasted for at least 12 months, nor was it able to conclude that the period for which such an impairment was likely to last was at least 12 months or for the rest of the life of the claimant, as required by paragraph 2 of Schedule 1 of the 1995 Act. The onus in that regard is clearly on the claimant (see Latchman v Reid Business Information Limited [2002] IRLR 1453) and that onus has not been discharged in this case.
- The inevitable conclusion from all the foregoing is that, whilst the tribunal has been able to conclude, albeit with some difficulty, that the claimant probably had a mental impairment in 2002, the tribunal is unable to conclude in the claimant's favour the remaining three of the four tests applicable to the determination of the issue in this case. Thus, the tribunal cannot conclude that the impairment affected the claimant's ability to carry out normal day-to-day activities in one of the respects set out in Schedule 1, paragraph 4(1) of the 1995 Act, nor that it did have an adverse effect. Even if the tribunal had been able so to conclude, it would have been unable to conclude that any adverse effect was either substantial or long-term.
- That being the case, the claimant was not a person having a disability for the purposes of Section 1 of the Disability Discrimination Act in 2002 and the question posed in the preliminary issue is answered by the tribunal in the negative.
- With this finding, the claimant's claim for disability discrimination is dismissed by the tribunal, without further order.
Chairman:
Date and place of hearing: 7 March 2007, 4 July 2007, 30 August 2007, Belfast
Date decision recorded in register and issued to parties:
