THE INDUSTRIAL TRIBUNALS

CASE REF:	122/07

CLAIMANT:			Ronald Morrow

RESPONDENT:		FP McCann Limited

DECISION ON A PRE-HEARING REVIEW
The claimant was a “disabled person” within the meaning of the Disability Discrimination Act 1995 at the material times.

Constitution of Tribunal:
Chairman (sitting alone):		Mr P Buggy

Appearances:

The claimant was represented by Ms R Ellis, BL, instructed by Patrick JJ McGuckin Solicitors.

The respondent was represented by Mr M McEvoy, BL, instructed by Carson McDowell Solicitors.

REASONS

1.	The claimant was dismissed by the respondents.  Was he a “disabled person”, for the purposes of the Disability Discrimination Act 1995 (“the DDA”) at all material times?  That was the preliminary issue which was determined in the course of this pre-hearing review.

2.	At the end of the hearing, I issued my decision orally.  I also gave my reasons orally at the time of issuing the decision.  Accordingly, what follows is by way of summary only.

3.	At any material time, a claimant will be a “disabled person”, within the meaning of the DDA, if he has an 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 Act provides that an impairment is to be taken to affect the ability of a claimant to carry out normal day-to-day activities only if it affects one of the capacities specified at paragraph 4 of that Schedule (“the specified capacities”).

4.	In these proceedings, the claimant asserts that, at the material times, he had an impairment which had a substantial and long-term adverse effect on his mobility and on his ability to lift, carry or otherwise move everyday objects.  (Mobility and the ability to lift, carry or otherwise move everyday objects are two of the specified capacities, as set out at paragraph 4 of Schedule 1 of the DDA).

5.	On behalf of the respondent, Mr McEvoy accepted that the claimant, at the material times had a physical impairment which had a long-term adverse effect on his mobility and upon his ability to lift, carry or otherwise move everyday objects.

6.	I noted that, in Ekpe v Commissioner of Police of the Metropolis [2001] IRLR 605, Mr Recorder Langstaff observed that if an impairment has an impact on any of the specified capacities, it is almost inevitable that there will be some adverse effect upon normal day-to-day activities.  In the same case, he pointed out that an impact is to be regarded as “substantial” if its effect is more than merely trivial.

7.	Having carefully considered the testimony which the claimant had given in the course of this pre-hearing review, I concluded that the claimant was an inaccurate reporter of his condition, in at least some respects.  However, when I looked at the medical evidence, especially in light of comments in Ekpe in particular (which I have already mentioned above), I was satisfied, on the balance of probabilities, that the requirements of substantiality had been met in this case, at least in relation to the ability to lift, carry or otherwise move everyday objects.  In assessing the medical evidence, I took account of the fact that paragraph 6 of Schedule 1 says that an impairment which would be likely to have a substantial adverse affect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.

8.	Against that background, and in light of the medical evidence, I accepted that when the claimant had palpitations, the adverse effect on the ability to carry or lift was substantial.

9.	I noted that, in the report from Dr. EK Hunter, Consultant Physician, the following advice was given in respect of Mr Morrow’s condition in 2006:-

“During periods of fast heart rhythm when he was admitted to hospital Mr Morrow’s physical impairment due to his heart rhythm would have had significant adverse effect on his mobility and his ability to lift, carry or move….”.

Chairman:

Date and place of hearing:	28 August 2009, Belfast.	

Date decision recorded in register and issued to parties: