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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Cunningham v Ballylaw Foods Ltd [2005] NIIT 442_03 (8 November 2005) URL: http://www.bailii.org/nie/cases/NIIT/2006/442_03.html Cite as: [2005] NIIT 442_3, [2005] NIIT 442_03 |
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THE INDUSTRIAL TRIBUNALS
CASE REF: 442/03
1326/03
CLAIMANT: Stephanie Cunningham
RESPONDENT: Ballylaw Foods Limited
DECISION
The tribunal unanimously concluded that the claimant's complaint of disability discrimination was out of time. However, the tribunal decided, in exercise of the discretion conferred upon it by the Disability Discrimination Act 1995, that it would be just and equitable in all the circumstances of the case to extend time and allow her complaint to be considered.
The tribunal unanimously found that, at the time of the alleged discriminatory act against her, the claimant was not a disabled person within the meaning of the Disability Discrimination Act 1995. Accordingly her complaint is dismissed.
The tribunal dismissed the claimant's complaints of breach of contract and breach of the Working Time Regulations following their withdrawal by the claimant at hearing and by the consent of the parties.
Constitution of tribunal:
Chairman: Mr McArdle
Members: Mr Laughlin
Mrs Doran
Appearances:
The claimant was represented by Mr M Canavan, Solictor of McGuinness & Canavan, Solicitors.
The respondent was represented by Mr B McKee, Barrister-at-Law, instructed by McConnell & Fyffe, Solicitors.
REASONS
The claimant commenced employment with the respondent on 26 August 2002 as a production worker. Her work involved the cleaning and preparation of vegetables for sale to supermarkets. The claimant suffered a fall at work on 12 December 2002, and sustained bruising around her back and bottom. She did not report the fall to management, nor did she seek medical help or advice in respect of it. On 25 January 2003, she suffered an episode of acute back pain requiring out-of-hours treatment at a local Health Centre. She was advised that she needed to rest her back. On 27 January 2003, she reported sick and sent a self-certificate to her employer citing severe lower back pain. On reporting to her employer in person the following week, 3 February 2003, with a doctor's sick note, certifying that she was suffering from back pain, the respondent employer dismissed her with one week's notice.
The claimant initially complained to the tribunal of breach of contract in respect of unpaid notice pay, outstanding wages and breaches of the Working Time Regulations. Later she lodged a claim of disability discrimination.
The respondent initially denied that there had been a dismissal, but conceded it at hearing. The respondent denied that, at the relevant time, the claimant was disabled for the purposes of the Disability Discrimination Act 1995.
In the course of the hearing of the claimant's case, the parties resolved all of the issues outstanding between them in respect of unlawful deductions, notice pay and holiday pay. Following their withdrawal by the claimant at hearing, the tribunal dismissed the claims by agreement with the parties. The tribunal then went on to consider the claimant's disability discrimination claim.
The tribunal considered the remaining issues before it were as follows:-
(i) was the claimant's claim of disability discrimination within time; and if not;
(ii) was it just and equitable to extend the time for lodging the claim; if so;
(iii) was the claimant a disabled person within the meaning of the Disability
Discrimination Act?
The tribunal heard evidence from the claimant, from her mother and from one of the claimant's former colleagues, Mrs Cara Smith, on her behalf. The tribunal next heard evidence from the respondent's company Secretary, Mrs Avril Miller. The tribunal also considered documents submitted by each of the parties in two separate bundles. The claimant's bundle included, and the tribunal was directed to, the claimant's GP notes, x-ray records, Health Centre records, and medical reports prepared by two Consultant Orthopaedic Surgeons, Mr McCormack and Mr Wong, of Altnagelvin Hospital.
The claimant's claim was received at the Office of Industrial tribunals on 14 May 2003. As there was uncertainty over the claimant's Effective Date of Termination (EDT), the tribunal, as a first step, had to decide upon the correct Effective Date of Termination to determine whether the claimant's complaint was in time. A number of alternative dates were cited to the tribunal arising from, among other things, the date on which the claimant first became entitled to Incapacity Benefit (15 February 2003) and the date quoted on her P45 (22 February 2003). In either of these cases, her claim was in time. However, as a matter of principle, the Effective Date of Termination is the date on which the employee's notice expires. Article 118(1) of the Employment Rights (Northern Ireland) Order 1996, provides that the notice required to be given by an employer to terminate the contract of employment of an employee who has been continuously employed for one month or more is not less than one week's notice if his or her period of employment is less than two years. As the claimant was dismissed on 3 February with one week's notice of continuing sickness benefit, the tribunal determined the claimant's Effective Date of Termination as 10 February 2003. On this basis, her claim of disability discrimination was out of time (see Paragraph 3 of Schedule 3 to the 1995 Act).
The tribunal therefore considered the submissions of the parties in relation to allowing the claimant's out-of-time claim to be considered. The tribunal was required to consider the prejudice to the parties as a result of granting or refusing an extension of time, and to have regard to all the other circumstances, in particular the length of and reasons for the delay, the extent to which delay had affected the cogency of the evidence and the availability to the claimant of any alternative remedy if extension was refused. The claimant's claim, the tribunal found, was 4 days out of time. The matters on which the claimant relied were uncertainty as to the gravity of her injury and confusion over the effective date of termination. On one view, once she had retained a professional adviser, the adviser should be fixed with liability for any mistaken advice as to the deadline for lodging her claim.
On another view, the alternative dates that presented themselves (15 February, the date on which the claimant first became eligible for receipt of Incapacity Benefit, and 22 February, the date set out in her P45) to the claimant and her adviser may have been a source of confusion. It seemed to the tribunal that there were genuine grounds for confusion over the Effective Date of Termination. On admission by the respondent that it did not perceive its position to be seriously prejudiced by an extension of time, on agreement by the parties that the brief delay would not have affected the cogency of the evidence and, upon consideration, that a refusal to extend time would have closed off the only route through which the claimant could hope to air her grievance (the claimant did not satisfy the qualifying service for an unfair dismissal claim), the tribunal decided, having regard to all the circumstances of the case, that it would be just and equitable to extend time and allow consideration of the claimant's complaint.
As its next step, the tribunal was required to consider whether the claimant satisfied the definition of disability set out in the Disability Discrimination Act 1995. Section 1 of the Act provides – "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 to the Act then sets out more detailed definitions and requirements in respect of the matters cited in Section 1. Advice on how to apply these provisions to the facts of individual cases is provided, both by the Code of Practice and by the detailed Guidance. Additionally, the appellate Courts have added their own guidance, notably in Goodwin –v- The Patent Office [1999], IRLR 4.
(i) Impairment: Did the claimant have a physical or mental impairment?
(ii) Did the impairment adversely affect the applicant's ability to carry out normal day-to-day activities in one of the respects set out in Schedule 1, paragraph 4(1)?
(iii) Was the adverse effect substantial, meaning more than minor or trivial?
(iv) Was the adverse effect long-term?
The tribunal also had regard to the Code of Practice and to the 'Guidance on Matters to be taken into account in determining Questions relating to the Definition of Disability' [the Guidance].
The Act does not itself contain a definition of impairment. The World Health Organisation defines an impairment as – "any loss or abnormality of psychological, physiological or anatomical structure or function". [International Classification of Impairments, Disabilities and Handicaps: A Manual of Classification relating to the Consequence of Disease, WHO 1980, cited in Blackstone's Guide to Disability Legislation, Karon Monaghan [2005] at P 72].
In her claim form, lodged on 14 May 2003, the claimant initially relied upon a 'serious back problem' that followed a fall at work, as the qualifying disability. In her Replies to the statutory questionnaire on 19 February 2004, the claimant relied upon this and upon Schuermann's disease, a condition first disclosed by her x-ray on 12 February 2003. At hearing, however, the claimant abandoned reliance upon Schuermann's disease in view of the medical evidence from Mr McCormack (see report of 3 June 2003), that this was not the cause of her problems with day-to-day activities. In effect, the claimant reverted to reliance upon 'very significant discomfort' she suffered as a result of a fall at work on 12 December 2002. The claimant in submissions then contended that the problem experienced by the claimant in the period immediately following her fall at work was essentially the same as the problem later identified by Mr McCormack, verified by an MRI scan in February 2005 and described by Mr Wong in his report of August 2005, namely, a prolapsed disc of the lumbar spine.
Mr Wong, who summarises the history of the claimant's impairment in his report of August 2005, suggests it 'is possible' that the condition was caused by a fall at work which the claimant reported to her doctors as having occurred on 12 December 2000. The tribunal, on foot of the claimant's evidence, supported by Ms Smith's evidence has no hesitation in accepting that the claimant suffered a fall at work in or around mid-December 2002. The tribunal notes that Mr Wong is circumspect in addressing the likely cause of the prolapsed disc, but in view of the continuity of the symptoms the claimant reported in early/mid 2003 with those described by Mr McCormack in 2004 and by Mr Wong in 2005, the tribunal concludes that the impairment was more likely than not to have been the same at the time of her dismissal.
On this issue, the tribunal accept Mr Canavan's submission that Mr Wong is not expressly addressing a percentage assessment of the factors causing the claimant's injury. Equally, the tribunal accept Mr McKee's submission, based on Mr McCormack's report, that the claimant's pregnancy in 2003, among other matters, may have contributed to or aggravated her condition. Nevertheless, the tribunal finds that the claimant establishes that, at the time of her dismissal, she suffered from an impairment. That impairment is likely to have been a prolapsed disc of the lumbar spine. The tribunal, in the absence of expert evidence on the matter, is not competent to determine whether such an injury would have had an immediate impact on the subject of the injury.
Schedule 1 to the Act, paragraph 4(1) states 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 – the relevant matters in the claimant's case being:-
(a) mobility;
(e) ability to lift, carry or otherwise move every-day objects.
At Paragraphs C14 and C18, the 'Guidance' gives illustrative examples of the effects
covered:-
Mobility
C.14 This covers moving or changing position in a wide sense. Account should be taken of the extent to which, because of either a physical or a mental condition, a person is inhibited in getting around unaided or using a normal means of transport, in leaving home without assistance, in walking a short distance, climbing stairs, travelling in a car or completing a journey on public transport, sitting, standing, bending or reaching, or getting around in an unfamiliar place.
Examples
It would be reasonable to regard as having a substantial adverse effect: - inability to travel a short journey as a passenger in a vehicle;
- inability to walk other than at a slow pace or with unsteady or jerky movements;
- difficulty in going up or down steps, stairs or gradients;
- inability to use one or more forms of public transport; and
- inability to go out of doors unaccompanied.
It would not be reasonable to regard as having a substantial adverse effect:
- difficulty walking unaided a distance of about 1.5 kilometres or a mile without discomfort or having to stop ….; and
- inability to travel in a car for a journey lasting more than two hours without discomfort.
Ability to lift, carry or otherwise move everyday objects
C.18 Account should be taken of a person's ability to repeat such functions or, for example, to bear weights over a reasonable period of time. Everyday objects might include such items as books, a kettle of water, bags of shopping, a briefcase, an overnight bag, a chair or other piece of light furniture.
Examples
It would be reasonable to regard as having a substantial adverse effect:
- inability to pick up objects of moderate weight with one hand; and
- inability to carry a moderately loaded tray, steadily.
It would not be reasonable to regard as having a substantial adverse effect:
- inability to carry heavy luggage without assistance; and
- inability to move heavy objects without a mechanical aid.
Paragraph C2 of the Guidance states that the term 'normal day-to-day activities' is not intended to include activities which are normal only for a particular person or group of people. Paragraph C3 states the term – 'normal day-to-day activities' does not, for example, include work of any particular form, because no particular form of work is 'normal for most people'.
It follows from the tribunal's finding of an absence of any evidence of adverse impact in the period prior to 25 January 2003 that it does not find any substantial adverse impact at the relevant time, the time of the claimant's dismissal.
Were the tribunal to have been mistaken or to have erred in regard to the application of the statutory test in respect of the substantial adverse impact of her impairment on the claimant's ability to carry out day-to-day activities at the relevant time, the tribunal concludes that, in respect of the fourth condition, it would also have found against the claimant.
Schedule 1 to the Act, paragraph 2(1) provides – "The effect of an impairment is a long-term effect if:-
(a) it has lasted 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."
The claimant at the time of her dismissal had not suffered from any impairment for 12 months. She relied instead on (b), on the grounds that, at the time of her dismissal, the effects of her impairment were 'likely' to last for at least 12 months.
Further assistance is found in the Guidance at paragraphs B7 and B8 –
B.7 It is likely that an event will happen if it is more probable than not that it will happen.
B.8 In assessing the likelihood of an effect lasting for any period, account should be taken of the total period for which the effect exists. This includes any time before the point when the discriminatory behaviour occurred as well as time afterwards. Account should also be taken of both the typical length of such an effect on an individual, and any relevant factors specific to this individual (for example, general state of health, age).
"There are changes at the T12 vertebral body but these are more in keeping with Schuermann's disease normal vertebral body height, disc space height and alignment".
In the absence of a diagnosis, an event that was delayed by the claimant's pregnancy in 2003, or of x-ray or other evidence explaining or pointing to the nature of the problem, it is difficult to see how it would have been possible, at the time of the claimant's dismissal, for anyone to say with any confidence that it was more probable than not that the effect of her impairment was going to last for a period of at least 12 months. It is noteworthy that the claimant herself delayed lodging any proceedings until 14 May 2003, and stated in her claim – "It now appears that I may have a serious back problem".
Chairman:
Date and place of hearing: Strabane on 26 September 2005 and
Limavady on 8 November 2005
Date decision recorded in register and issued to parties: