![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
Industrial Tribunals Northern Ireland Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Higginson v Short Brothers Plc [2007] NIIT 342_03IT (10 December 2007) URL: https://www.bailii.org/nie/cases/NIIT/2007/342_03IT.html Cite as: [2007] NIIT 342_3IT, [2007] NIIT 342_03IT |
[New search] [View without highlighting] [Printable RTF version] [Help]
CASE REF: 342/03
CLAIMANT: Rodney Higginson
RESPONDENT: Short Brothers Plc
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
THE APPLICABLE LAW
"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 TRIBUNAL'S FINDINGS OF FACT
"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."
THE TRIBUNAL'S DETERMINATION
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?
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.
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: