THE INDUSTRIAL TRIBUNALS 

CASE REF NO:	1487/02

APPLICANT:	Wendy Lynch

RESPONDENT:	Seagate Technology (Ireland)

DECISION ON A PRELIMINARY ISSUE

The unanimous decision of the tribunal is that the applicant is not a disabled person within the meaning of Section 1 of the Disability Discrimination Act 1995.

Appearances:

APPLICANT:		Mr U Adair, Full-Time Union Official of AEEU.

RESPONDENT:		Mr P Bloch of Engineering Employers’ Federation.

1.	The applicant had been employed by the respondent for some seven years and it was common case that the company worked rotating shifts which included a night shift.  The applicant had experienced problems with working on the night shift and outlined her symptoms to the tribunal.  She was referred by the company to Dr Philip McCrea who is an occupational health consultant.  He saw her on 13 December 2001 and 28 November 2002 and produced two reports.  In the first report he stated that “the applicant has developed a state of dysphoria as a consequence of shift-work problems associated presumably with sleep deprivation”.  He also noted that she suffered from migraines and he accepted in his second report that the applicant has a “well recognised medical condition which is of a long term nature but does not produce a substantial adverse effect on her ability to manage normal day-to-day activities”.

2.	The tribunal heard evidence from the applicant and accepted when she was on a rotating night shift she had problems with concentration, panic attacks and she used relaxation techniques to enable her to go out of the house and perform tasks such as shopping.  In answer to Mr Bloch, she stated quite categorically that these problems went away when she was not working on the night shift and agreed that they were totally work-related, ie. to doing full night shifts.  She had in the meantime changed to a part-time job where she was not working the same number of hours at night and she agreed this had helped.

3.	The tribunal considered the evidence given by the applicant and the guidelines provided by the Department of Economic Development (as it then was) pursuant to the Disability Discrimination Act 1995.  A disabled person is defined as “a person with a physical or mental impairment which has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities”.  We can accept that the applicant suffers from a clinically recognised condition which Dr McCrea describes as physiological in make up.  He also stated that this illness does not have a medical cure.  The cure is to avoid working on a night shift and that is borne out by the applicant’s own testimony.  When looking at normal day-to-day activities the guidance notes at C3. provide “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”.  If one takes away night work from consideration of the applicant then she can function quite normally and the tribunal is satisfied that she does not come within the definition of a disabled person for the purposes of the Act.  That part of her claim is dismissed.

4.	The applicant’s representative has applied to amend the originating application to include a claim for unfair dismissal and the question of an amendment will be put forward before a preliminary hearing.

____________________________________
M P PRICE
Vice President

Date and place of hearing:	18 December 2002, Londonderry

Date decision recorded in register and issued to parties: