THE INDUSTRIAL TRIBUNALS

CASE REFS:	16/04
1442/04
303/05

CLAIMANT:		Charlie O’Neill

RESPONDENTS:		1.	Calcast Ltd
				2.	Montupet (UK) Ltd

DECISION ON A PRE-HEARING REVIEW
The decision of the tribunal is that the claimant is not a disabled person for the purposes of the Disability Discrimination Act 1995.  His claim in that regard must therefore fail.

Constitution of Tribunal:
Chairman (sitting alone):		Mr T Browne

Appearances:
The claimant was represented by Mr M Potter, Barrister-at-Law, instructed by Thompsons McClure, Solicitors.
The respondents were represented by Ms L Toolan, of the Engineering Employers’ Federation.

Issues

1.	The tribunal had to determine whether the claimant was suffering from a disability within the terms of the Disability Discrimination Act 1995 (‘the 1995 Act’) at the time of his employment with the respondent.

2.	Section 1 of the 1995 Act declares:-

“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, long term adverse effect on his ability to carry out normal day to day activities.”

The facts

3.	In order to reach findings of fact, the tribunal has had regard to the oral evidence and written materials placed before it.

4.	The claimant worked for the respondent as a technician from 1996 until his dismissal on grounds other than of ill-health in November 2004, aged 49.  His ill-health arose from an accident sustained at work in November 2002 which caused a significant amount of pain and discomfort in the claimant’s lower back.  He was off work for around two weeks, and thereafter has complained of persistent pain, necessitating physiotherapy and painkillers.  Significantly however the claimant had no further absence from work on medical grounds until he went on sick leave in March 2004.  His absence from March 2004 coincided with the investigation of disciplinary proceedings against him. 

5.	He described to the tribunal the difficulties experienced by him since that time regarding his mobility, notably his ability to stand or walk more than  a short distance, to climb stairs, and that he finds it impossible to bend or to lift any significant weights.  The claimant also told the tribunal that he can no longer enjoy his previous pastimes of country walks and fishing trips, and that he even faces great discomfort in getting out of chairs.  The claimant made clear to the tribunal that his condition has become progressively worse since the time of his accident. 

6.	His assertions in evidence as to the detrimental effects of his back sat in stark contrast to the report of Dr McCrea, Occupational Health specialist.  Dr McCrea recorded that the claimant had told him in February 2004 that he carried out an exercise programme at home as advised by the physiotherapist as well as a daily programme of walking up to seven miles per day taking 1½ hours, and cycling 10 kilometres at weekends.

7.	The claimant emphatically denied in evidence telling Dr McCrea that he was able to carry out such an exercise regime, stating that to do these things would have been an impossibility.

8.	The claimant and the tribunal were significantly hampered in testing whether this had been said or not because the respondent did not present Dr McCrea as a witness.  Whilst the remainder of Dr McCrea’s report does not appear to be disputed by the claimant, the tribunal cannot exclude the possibility that had he given evidence, Dr McCrea might have conceded the fact or possibility of an error by him on this issue.  Mr Potter, counsel for the claimant, understandably was expecting that Dr McCrea would be attending.  He consequently was denied the opportunity of asking Dr McCrea about this area of dispute.  The tribunal therefore has disregarded that portion of his report of February 2004. 

9.	The claimant did not dispute the clinical findings of that report, which concentrated upon the claimant’s ability to work, in that Dr McCrea was satisfied that the claimant suffered from mechanical back pain, thereby hampering his ability to carry out prolonged standing or bending.  His clinical opinion was that the deterioration in the claimant’s condition was possibly age-related, with the additional possibility of disc lesion in the lower back.  Those findings are echoed in the evidence of Mr Michael McCormack, consultant orthopaedic surgeon, who was called as a witness by the claimant.

10.	Mr McCormack did not dispute any of the clinical findings of Dr McCrea’s reports, which he had the opportunity to read at the tribunal hearing.  Mr McCormack formed his own opinion when he examined the claimant in May 2004, having been fully advised by the claimant’s solicitors as to the purpose of the examination, namely that it was with a view to obtaining a report addressing whether or not the claimant was a disabled person for the purposes of the 1995 Act, and included extensive detail of what the legislative definitions and requirements are.

11.	Mr McCormack’s first written report indicated a diagnosis of disc degenerative disorder of the lumbo-sacral spine with a possible small prolapse.  That diagnosis would seem to be substantially confirmed by an MRI scan in July 2006.  Mr McCormack told the tribunal that in practice this was not so much a disorder as part of the ageing effect in the spinal discs.  In his opinion, this would, in common with Doctor McCrea’s opinion, create difficulties at work in certain types of situation which involve prolonged sitting; or bending or lifting. 

12.	The first written report prompted further correspondence from the claimant’s solicitor, re-directing Mr McCormack’s attention to the day to day activities test required by the legislation and guidance notes.

13.	The tribunal notes that in his written response, Mr McCormack stated:-

“… this gentleman was noted to be uncomfortable when seated in a chair. …  in everyday activities in life Mr O’Neill may be expected to have some discomfort when seated for a period of time, if driving a certain distance, or for that matter in bed at night he may experience discomfort and sleep disturbance.  These would certainly inhibit his normal day-to-day activities.

Further, activities that one might consider within the remit of a man of his age group, such as carrying shopping bags, moving coal buckets or moving furniture around his own home, or similar activities that might be expected of a man of his age would also be difficult for this gentleman.”

14.	Mr McCormack gave evidence that he tends to rely more on his own observations than what a patient tells him, and confirmed that he probably did not discuss with the claimant the effect of his condition on his day to day life.  Mr McCormack therefore confined himself to commenting generally that people suffering from this type of condition cannot be completely free of pain and discomfort, but that they can have good and bad days.  He also stated that although they often find that they stop doing some things or lighten loads, patients can help themselves to a degree by lifestyle management.

15.	The tribunal noted that at no stage in his two written reports, compiled specifically in anticipation of court proceedings in response to requests from the claimant’s solicitors, nor in his evidence to the tribunal did Mr McCormack state that the effects of the claimant’s condition were substantial.  His opinion at its height was that the effects were ‘certainly not minor or trivial’.

16.	In the absence of any evidence from Mr McCormack as to the actual effects on the    day-to-day activities of the claimant, the tribunal had to rely substantially upon the claimant’s account.  The tribunal found the claimant to be a wholly unconvincing witness.  He could not supply any satisfactory answer to the issue of continuing to work for a period of some fourteen months with only a few short absences due to illness.  Whilst that is commendable in itself, the tribunal could not reconcile it with the claimant’s contention that throughout that time, he was suffering to the degree described by him. 

17.	The claimant gave what the tribunal viewed as an evasive and exaggerated account of the symptoms allegedly suffered by him in his day to day activities, those accounts standing in stark contrast to the absence of any record of his having experienced such wide-ranging symptoms before.

18.	Of particular note was the claimant’s assertion that while still employed by the respondent, he could not climb stairs, and that he needed somebody behind him in case his legs ‘went from under him’.

19.	The respondent adduced evidence on this point from Ms Nicola McCloskey, who is head of personnel for the respondent.  She gave evidence of having observed the claimant, whom she knew well, in October 2003, when he was still working for the respondent but was in consultation with management about his condition.  She noted in her work diary that she had seen him in a local shopping centre:-

		(a)	carrying two supermarket shopping bags; and 

		(b)	walking up a flight of stairs without difficulty or assistance. 

The claimant angrily denied in evidence that he had ever being there, stating that he never goes to supermarkets and that the witness was lying as part of a ‘witch-hunt’.  He also denied being in another supermarket a few days later when another member of management, Ms Sinead McCurry, reported having seen the claimant shopping with his wife.  She recorded that he was carrying a wire shopping basket which was half full, without any evident discomfort.

20.	The tribunal has not placed reliance upon the evidence of Ms McCurry, since she did not give evidence, and therefore the quality of her observation could not be tested.  It was also implicit in the case put by the claimant that the evidence of both witnesses was an entire fabrication, and consequently the tribunal could not assess her credibility, so cannot properly adjudicate on it.

21.	The tribunal however was impressed by the evidence of Ms McCloskey, who presented as a credible witness, who gave a clear account of her observation, which she recorded at the earliest opportunity.  The tribunal therefore accepts her evidence, which comprehensively contradicts that of the claimant.

22.	Not only does Ms McCloskey’s evidence run contrary to the claimant’s assertion that he was not there because he does not go shopping, but it also undermines the basis of his contentions that he cannot carry weights or climb stairs as part of the substantial, long term adverse effect on his ability to carry out normal day-to-day activities.

Law and conclusions

23.	As indicated in Paragraph 2 above, the test of disability requires the claimant to satisfy the tribunal as to the existence and degree of any physical or mental impairment.

24.	The tribunal has had regard to the test outlined in the case of Goodwin  v  Patent Office [1999] IRLR 4, which sets four questions.  The first of these is:-

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

In this case the respondent did not seek to dispute that the claimant had an impairment and the tribunal answers in the affirmative because there was evidence that the claimant has, and at the time of his employment with the respondent had, a significant lower back problem.

25.	In the 1995 Act and the Guidance notes issued by the Secretary of State under Section 3 of the 1995 Act are clear headings and examples of the information required to answer the next question, namely: does the impairment affect the claimant’s ability to carry out normal day-to-day activities in one of the respects set out at Paragraph 4(1) of Schedule 1 of the 1995 Act, such as mobility, and does it have an adverse effect?  The tribunal concludes that the stiffness caused by his condition during his employment would have caused him some difficulty and discomfort in performing a day-to-day activity such as sitting and rising from a chair.  The overwhelming impression is that the claimant continued to live and work much as normal, but that his mobility was affected within the spirit of the legislation.

26.	The next question is:-

		Is the adverse effect upon the claimant substantial?. 

To this question the tribunal has concluded that the answer is in the negative.  In order to assess the degree of effect, the tribunal has applied the provisions of the legislation and Guidance notes to the medical evidence and its own assessment of the witnesses. 

27.	Addressing this aspect, the tribunal finds that the medical evidence, including that adduced by the claimant, falls far short of what the tribunal considers is required to establish that the effect upon the claimant’s ability to perform day-to-day activities is substantial.  ‘Substantial’ in the terms of the Guidance notes is ‘more than “minor” or ‘trivial’’.  Whilst Dr McCormack stated that the claimant’s condition was more than minor or trivial, he couched this in terms that the condition could have more marked impact on people of different physiques and that this area of medicine is not an exact science.

28.	The tribunal in assessing the extent and degree of the effect of the claimant’s condition paid particular attention to the apparent absence of any record of the claimant ever complaining about any material difficulties outside his workplace.  In the absence of specific medical evidence, the tribunal then has to turn to the claimant’s own evidence to assess if the effect of his impairment was substantial.  Even then, his work attendance was virtually unaffected.  The tribunal also regards the evidence of the claimant as to the wide range of associated difficulties which he claims started in around 2002 to be untrue.

29.	This conclusion is a combination of a number of observations.  First is the lack of any such recorded complaint despite numerous opportunities when he might reasonably have been expected to raise such topics, if only to seek guidance on how to address them.  Second is the irreconcilable conflict between the claimant’s assertion as to his extreme difficulty in climbing stairs and the evidence of Ms McCloskey as to her observation at the shopping centre.  The tribunal found the evidence of Ms McCloskey to be credible but found the evidence of the claimant on that aspect and on the remainder of his account to be unworthy of belief.

30.	The tribunal therefore concludes that the claimant has failed to establish that his physical impairment was substantial.  He therefore is not a disabled person for the purposes of the 1995 Act and his claim must fail.

Chairman:

Date and place of hearing:	25 September 2006, Londonderry Courthouse

Date decision recorded in register and issued to parties: