Rice v Board of Governors of St Aloysius High School & Anor  (Preliminary Hearing)  (6 October 2003)

THE INDUSTRIAL TRIBUNALS

Case Ref No:  2810/01

APPLICANT:		Hugh G Rice

RESPONDENTS:		1.	Board of Governors of St Aloysius High School
				2.	Council for Catholic Maintained Schools  

DECISION ON A PRELIMINARY ISSUE

This preliminary hearing was on the issue “Whether the applicant has a disability within the meaning Section 1 of the Disability Discrimination Act 1995”.  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

The applicant was represented by Mr Creighton of Creighton & Co, Solicitors. 

The respondents were represented by Mr McClelland Barrister-at-Law, instructed by Napier & Sons Solicitors.

1.	The Facts

1.1.	The applicant was employed as a teacher in St Aloysius High School in Cushendall up until 1992 when he was seconded to the North Eastern Education and Library Board to work as a field officer.  On his return to the school in 1995 he felt that he had become subject to bullying and harassment by the new principal of the school.

1.2.	Between 1995 and 2001 the applicant alleged that he was subject to this harassment.  He also was subjected to two verbal warnings and was eventually 
selected for redundancy in 1998.  In 1999 he was further accused of assaulting a pupil, and criminal proceedings were a possibility.

1.3.	During this period between 1995 and 2001 the applicant attended his general practitioner from time to time and the general practitioner diagnosed a depressive illness.  Ultimately in March 1999 the applicant was assessed at a psychiatric out-patients clinic where he was noted to be subjectively and objectively depressed with “feelings of hopelessness and life not worth living”.  It was also noted that his concentration was poor and at times he was experiencing symptoms of anxiety.  

There were a number of reviews of the applicant’s case by the out-patient clinic in April 1999, June 1999 and July 1999.  In the Autumn of 1999 the applicant returned to work but he again consulted his GP in January 2000.  This led to further assessments at the out-patients clinic in March 2000 and again in January 2001.  Further out-patients appointments were made during the Summer of 2001.

1.4.	In January 2001 the applicant was asked to attend a disciplinary meeting before the Board of Governors.  He was charged with gross misconduct arising out of claims by his employers that he had been working whilst on sick leave.  In February 2001 the applicant was summarily dismissed.  He appealed but the appeal was dismissed in favour of the respondents and the dismissal was confirmed in May 2001.

1.5.	Throughout this period of time and afterwards the applicant attended various specialists namely Dr O’Neill of Holywell Hospital who he saw on 4 June 2003.  Dr M Walsh of Causeway Health & Social Services Trust a Consultant Psychiatrist who saw the applicant between March 1999 and May 2000 and subsequently between May and August 2000.  Dr W R Jenkinson an Occupational Physician who saw the applicant on 9 November 2000 and Dr P S Curran Consultant Psychiatrist whom the applicant saw on 21 March 2000 and on 23 January 2001.  There were two reports before the tribunal from Dr  P S Curran two from Dr Walsh and two from Dr Jenkinson and one from Dr O’Neill.

2.	The Law

2.1.	The tribunal must decide whether the applicant falls within the definition of disabled in Section 1 of the Disability Discrimination Act 1995 (hereinafter called “the Act”).  Section 1 states that “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”.

2.2.	Schedule 1 of the Act provides supplementary provisions which expand upon that definition.  These are as follows:

2.2.1.	Impairment which includes “mental impairment” which “includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well recognised illness”.

2.2.2.	The impairment must have long-term effects i.e. it must have lasted at least 12 months or is likely to last for a further 12 months or for the rest of the life of the person affected.

2.2.3.	The impairment must have a substantial adverse affect on the normal day to day activities of the person concerned.

2.3.	Paragraph 6 of the First Schedule to the Act states that a person who is able to carry out normal day to day activities because he is having medical treatment or medication, who would, if not having such treatment, be disabled, is to be considered as a disabled person for the purposes of the Act.

3.	The Medical Evidence

3.1.	Dealing first with the impairment, the applicant alleges that he has a mental impairment as a result of his depressive illness which was diagnosed by Dr O’Neill who said that his symptoms were “in keeping with a diagnosis of moderate depressive illness”.  Dr O’Neill goes on to speak of other symptoms which leave him to believe that Mr Rice had a depressive illness from about 1998 onwards.  Dr O’Neill states that this recurrent depressive illness is classified in the International Statistical Classification of Diseases/10 of the World Health Organisation as “Recurrent Depressive Illness-F33.1” this being an illness which is well recognised.

3.2.	Dr O’Neill at the end of the report states “the ongoing employment difficulties conflict and investigations would lead to a perpetuation of the applicant’s psychological symptoms.  It would have been in his interest that this situation was resolved quickly.”

3.3.	Dr Walsh saw the applicant on a number of occasions at the Causeway Hospital and her clinical impression was that the applicant “experienced symptoms of a moderate depression secondary to events that occurred at his place of work.  The symptoms improved with medication and also when away from his place of work.  I did not feel that Mr Rice exhibited any symptoms of a psychotic nature”.

She goes on to state that when she last interviewed him on 30 August 2001 her impression was that he was mentally stable and there were no ongoing symptoms of a clinical depression.  Dr Walsh advised him to continue with his antidepressant medication Seroxot 40 mg daily.

3.4.	Dr. Curran however states that in his view the applicant was not suffering from depressive illness but the applicant had a tendency to medicalise what was basically a personnel issue.

3.5.	Dr Curran states that “I did not doubt that his long-term continuing disharmonious and confrontational relationship with his principal had caused him symptoms of stress and annoyance but I thought it wrong to use the term depression generically to cover stress when depression is a very specific syndrome of psychiatric illness”.  Dr Curran went on to state “Basically I acknowledge the man was worried and annoyed about his predicament and any feelings he had were reflective of the predicament but he did not have psychiatric illness”.

3.6.	The two reports from Dr Curran go on in this vain and it seems quite clear from these reports that the criminal charges and disciplinary charges hanging over the applicant and the requirement to attend disciplinary meetings caused him a great deal of stress.  However he does not feel that the applicant was suffering from a recurring depressive illness.

3.7.	Dr Jenkinson saw the applicant in November 2000 before a disciplinary hearing.  He had been asked whether he thought the applicant was medically fit to undergo a disciplinary hearing to which he replied “From my findings I believe that he is fit to undergo such a hearing.  In fact it could be beneficial for him to have this out of the way.”  This mirrors the conclusion expressed by Dr. O’Neill (see paragraph 3.2 above).

4.	Decision of the Tribunal

4.1.	The tribunal have carefully reviewed the medical reports prepared for this case.  The only report that supports the applicant’s view that he suffers from a recurrent depressive illness is that of Dr O’Neill.  Dr O’Neill only saw the applicant on one occasion namely 4 June 2003 but he did have the copy of the GP’s notes the report of Dr Maureen Walsh dated 23 January 2002 and Dr Peter Curran’s report of 31 January 2001 and the reports prepared by Dr. Jenkinson of 9 November 2000 and 22 December 2000.  The members of the tribunal felt that Dr O’Neill relied very heavily on the history provided by the General Practitioner and in his opinion the fact that these symptoms led to three referrals to the psychiatric out-patients clinic were strong evidence in Dr O’Neill’s mind that the applicant did suffer from a recurrent depressive illness.  However, when one turns to Dr Maureen Walsh’s reports she states that she did not feel that Mr Rice exhibited “any symptoms of a psychotic nature”.

4.2.	Dr Walsh’s view is reinforced by the view of Dr Curran in two reports.

4.3.	Dr Curran states in his second report dated 27 September 2003 quoting Dr O’Neill “that the ongoing employment difficulties conflict and investigations would lead to a perpetuation of Mr Rice’s psychological symptoms”.  Dr Curran goes on to state “Everyone is agreed with that.  It is for others to decide in some other tribunal the fact whether Mr Rice is the author of his own misfortunes” he then says “My view is that the causes of any psychological or emotional symptoms are exclusively to do with his disharmonious relationship with his head master”.

4.4.	Dr Curran goes on to state “ I have not regarded this man as ever having a psychiatric illness.  I found him fit to attend the Board of Governors meeting and evidenced this clinically in the opinion of 31 January 2001 just as Dr Jenkinson did.  I regard Mr Rice as the author of his own misfortune, if not wholly then certainly substantially so and if he was to suffer worry and annoyance about his predicament in recent years those feelings were understandable, predictable and proportionate to the situate he had largely created but were not the symptoms and signs of a mental illness.”

	4.5.	Dr Walsh refers to the applicant suffering from “symptoms of a moderate depression”, which tended to improve with medication or when away from his place of work.  Dr O’Neill also writes of “Mr Rice’s depressive symptoms.”  Dr Curran in his report of 27 September 2003 refers to “symptoms of stress and annoyance” but thought it was wrong to use the term “depression” generally to cover stress when depression is a very specific syndrome of psychiatric illness.  The tribunal agree with Dr Curran that the symptoms were not a depressive illness but of stress related to the applicant’s situation at work and with regard to the Police case.

4.6.	The tribunal agree with these opinions of Dr Curran, Dr Jenkinson and Dr Walsh who have all seen the applicant over a number of years.  The tribunal hold that the applicant does not suffer from a mental impairment and is consequently not a disabled person within the meaning of the Act.

4.7.	So far as the reliance of the applicant on medication is concerned, the various specialists, in their reports, deal with it in different ways.  Dr O’Neill states that the GP prescribed the antidepressant medication, but does not comment further on its necessity.  Dr Walsh did not consider that “Mr Rice exhibited any symptoms of a psychotic nature”, but did advise him to continue with the antidepressants.  She did not state that these were essential for the applicant’s well being, although she did refer to his reliance on them (see Clause 4.5 above).

4.8.	Dr Curran in his report of 31 January 2002 states “He told me that he has been taking the antidepressant Seroxat in the full dose of 30 mgs per day and for two years now.  He acknowledged that it has not helped him.  I am not surprised that it has not helped him.  In fact I don’t think antidepressants or psychoactive medication is going to help him in any regard.  I don’t believe he is psychiatrically ill”.

4.9.	Dr Jenkinson in his report does not mention medication.

4.10.	The tribunal are of the unanimous opinion that if the applicant came off the medication it would have no impact on his overall state of mental health.  No medical evidence is before the tribunal to suggest that the medication is essential to the applicant’s mental wellbeing.

4.11.	The evidence available, and its strength, suggests to the tribunal that the medication is to give the applicant self confidence, but is not required to keep him in a stable condition.

4.12.	For these reasons the tribunal are satisfied that Paragraph 6 of Schedule 1 of the Act does not apply to the applicant to make him a disabled person, within the scope of the Act.

Chairman:

Date and place of hearing: 6 October 2003, Belfast.

Date decision recorded in register and issued to parties: