FAIR EMPLOYMENT TRIBUNAL

CASE REF:	322/04
CLAIMANT:		Patrick Kieran Ward

RESPONDENT:	Castlereagh College of Further & Higher Education

DECISION ON A PRE-HEARING REVIEW
Appearances:
The claimant was represented by Mr J Bowers of the Unemployed Resource Centre.
The respondent was represented by Ms A McKelvey, Barrister-at-Law, instructed by P R Hanna Solicitors.

The parties had been informed by Notice dated 29 June 2005 that their case was to be heard on a preliminary issue, namely whether the claimant had the disability within the meaning of the Disability Discrimination Act 1995.  

THE RELEVANT LAW

Section 1 of the Disability Discrimination Act 1995 defines a disabled person as a person with “a physical or mental impairment which has a substantial and long term adverse affect on his ability to carryout normal day-to-day activities”.  

THE ISSUES

1.	The claimant gave evidence and the significant fact in relation to his health was that he had quadruple by-pass surgery in June 2002 following on from his ischaemic heart disease.  He stated that part of his recuperation was to walk three miles three times per week and he was able to do this for a while but then he suffered from pains in his chest and went back to his General Practitioner who told him to keep trying to do this.  The respondent denied that the claimant at the time that he complained about his failure to be appointed to a full-time post, namely, in May 2004 was a disabled person.  

2.	The claimant gave evidence himself and produced records from his General Practitioner, specialists at hospital and a claim for disability living allowance which was lodged in 2005.  It was agreed that he had not worked since May 2004 and the Tribunal accepts that his condition appears to have worsened in the last year.  The condition is a physical impairment rather than a mental impairment.  The Tribunal accepted the claimant’s evidence that he is now an insulin dependent diabetic as from October 2004.  He had been trying to regulate his diabetic condition with diet and tablets but the position had worsened.  

3.	However, his claims to the Tribunal do not appear to relate to his diabetes but more to his heart pain.  The Tribunal accepts that now he has difficulty after walking to the shops and back and any exertion uphill causes him pain.  He stated to the tribunal that he has been referred back to the cardiac department in the Mater Hospital and he was told that he has angina.  He is also using a spray and he is on a regular dose of aspirin, astatin for cholesterol, amolipidine which is for high blood pressure, and also bisoprolol which is a beta-blocker, he takes lisinopril which is also for his heart.  

4.	He is able to drive and does so frequently.  He states that he cannot lift any heavy object and he gets pain when he uses hedge clippers in the garden.  He states that his wife uses the lawnmower for cutting the grass.  He also complained of incidents where he would lose consciousness and this condition is known as synocope.  He stated that this would happen once or twice a month and, at present, no particular cause has been found although there are further investigations being carried out for this condition.

5.	I have considered the claimant’s evidence in relation to his normal day-to-day activities and looking at them in July 2005 I am satisfied that he could come within the definition of a disabled person.  He has a physical impairment, it has a long lasting effect, ie it has lasted for over twelve months, and he has demonstrated that there is a substantial adverse effect on his normal day-to-day activities at this time.  

However, the question for me is what was his condition at the time that he complained of less favourable treatment towards him which was 14 May 2004.  The respondent produced two application forms which had been completed by the claimant, the first one was completed in December 2002 and the claimant stated that he was not disabled at that time.  He agreed that during the period of his employment he had only taken four days of sickness leave.  When he applied for a permanent position in April 2004 he was again asked if he considered himself to be a disabled person.  He completed the form and stated yes, he put down quadruple by-pass surgery but gave no further indication of a condition.  He answered a question asking whether he was in good health and he stated yes.  At that time the claimant was doing all elements of his job which involved driving to sites, discussing security systems with staff there, writing reports and dealing with the respondent’s management.  There is no evidence to show that he was disabled within the meaning of Section 1 of the Act at that time.  He stated that management would have been aware that he had had a quadruple by-pass and the tribunal can accept that, however, it does not necessary follow that someone who has had major surgery of this type is considered disabled. 

6.	The Tribunal considered the cases of Cruickshank –v- VAW Motorcast Limited 2002 IRLR 24 and Greenwood –v- British Airways PLC 1999 IRLR 600.  From those cases the conclusion appears to be that the “material” time at which to assess the disability is at the time of the alleged discriminatory act, in this case the failure to appoint him on 14 May 2004.  I have considered the disability claim on this basis and do not find that the claimant has produced sufficient evidence to show that he was a disabled person within the meaning of Section 1 of the Act in May 2004.  That is not to say that he did not have discomfort but I am satisfied that he was able to carry out his normal day-to-day activities.  I am aware that the situation has become worse since he left his employment in 2004 and his condition now could be viewed as more serious, however, for the purposes of his claim I am not persuaded that he was a disabled person in May 2004 and so his claim under the Disability Discrimination Act is dismissed.  His claim of discrimination on the grounds of religious belief can go forward to a full hearing.

Vice President:

Date and place of hearing:	7 July 2005 at Belfast

Date decision recorded in register and issued to parties: