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

1.	Background

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.

2.	The claims and the defence

	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.

3.	Issues

	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?

4.	Evidence

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.

5.	The time point

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).
	
6.	Whether just and equitable to allow claim in

	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.

7.	The disability issue

	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.

8.	It was common case between the parties that, at the time of hearing (September to November 2005) and for some time before, the claimant suffered from an impairment to her lower back that had a substantial adverse effect on her ability to carry out normal day-to-day activities.  At this stage, moreover, the impairment was long-term, in that it had lasted more than 12 months.  On this basis, the claimant would have satisfied the definition of disability, within the meaning of the Act.  The parties, in their opening statements however, on the authority of Cruickshank –v- VAW Motorcast [2002], IRLR 24 EAT, agreed that the material time to assess whether the claimant had a qualifying disability was, at the time of the alleged discriminatory act, in this case the date of dismissal, 10 February 2003.  The claimant’s evidence and submissions therefore were directed to establishing that the claimant was disabled at the relevant time.  The respondent’s evidence and submissions, likewise, were directed to disproving or raising doubt as to whether the claimant could be considered disabled under the statutory definition at the time of her dismissal.  The tribunal therefore also bent its mind to determining what the evidence established in relation to the disability issue as of            3 - 10 February 2003.

9.	The tribunal considered the matter by reference to the four separate conditions cited in	Section 1, as recommended in the guidance case of Goodwin:-

(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].

10.	Impairment

	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.

11.	The tribunal accepts, on the strength of the medical evidence from Consultant Orthopaedic Surgeons, Mr McCormack and Mr Wong of Altnagelvin Hospital, that the claimant has an impairment of the lower back, consisting of a prolapsed disc of the lumbar spine.  The diagnosis was first proposed as a probable explanation for the claimant’s symptoms by Mr McCormack in May 2004.  It was then verified by means of an MRI scan carried out in February 2005.

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.

12.	Adverse effect on ability to carry out normal day-to-day Activities

	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’.

13.	The claimant gave evidence that immediately following her fall at work, she suffered a range of painful symptoms in her back, arms and leg that impacted adversely on her ability to carry out a range of normal day-to-day activities.  In respect of mobility, she found walking a distance beyond 50 yards difficult without discomfort, she was unable to stand for any length of time, for example, to peel potatoes, she was unable to climb the stairs in her boyfriend’s house without great difficulty (‘a nightmare’).  In respect of the ability to lift, carry or otherwise move everyday objects, she said she had had to give up helping either her boyfriend or her mother with shopping and a wide range of household chores involving lifting, carrying or reaching for household objects.  She stated that she experienced these symptoms and their effects throughout the period from 12 December 2002 until her dismissal by Mrs Miller on 3 February 2003.

14.	The tribunal has little doubt that the claimant did indeed experience many of the symptoms she described and the adverse impact they exerted on her ability to carry out day-to-day activities.  Assessed against the benchmarks outlined in relevant respects in the Guidance above, the claimant satisfied the statutory test at time of hearing and for a considerable period before.  Nor did the respondent challenge the finding to this effect contained in Mr Wong’s report of August 2005, or the difficulties with her mobility described in Mr McCormack’s earlier reports of June 2003 or May 2004.  The tribunal did not accept, however, the claimant’s evidence, that she experienced these symptoms and these difficulties throughout the period from 12 December 2002 to 3 February 2003, and that for the following reasons.

15.	The claimant did not, at any stage after the accident, report it to her management. At hearing, the claimant stated that she did not, because she was afraid of the possible consequences.  In view of the way Mrs Miller treated her in the event, the claimant’s explanation of her failure to raise it has to be taken at face value.  But nor did the claimant ever complain to her colleague, Ms Smith, who had come to the tribunal to testify on her behalf.  Certainly Ms Smith gave evidence that on the weekend following her fall, the claimant had shown her the bruising that had resulted, but there was no evidence from this witness that, in the subsequent period, the claimant had complained of any symptoms or of difficulties at work or at home as a result of her fall.

16.	More telling still is the contemporary evidence of the medical records.  These establish that the claimant, who subsequently became a frequent visitor to her GP surgery with back problems, in the relevant period (that is, prior to the episode of acute back pain on 25 January 2003) visited her doctor’s surgery only once, on 15 January 2003, but the GP’s notes show, in connection with a matter unrelated to her back problem.  On that occasion she did not refer the Doctor to any of the matters she stated to the tribunal were troubling her throughout the period (inter alia, stiffness and pain in back and leg; great difficulty climbing stairs; inability to stand for long periods; sleepless nights; difficulties with shopping and a range of household tasks; difficulty walking any distance).  The first evidence of a problem on the medical record is the claimant’s emergency treatment at the Health Centre on 25 January 2003 for an episode of acute back pain, requiring an intra-muscular injection.  On that occasion, the Doctor advised rest for pain relief.  The claimant reported sick for work on the following Monday, 27 January 2003.

17.	A further matter concerned the tribunal.  In the course of his closing submissions, the claimant’s representative summarised the claimant’s evidence as to her symptoms at this period and stated, among other matters, that she couldn’t stand for long periods, for example, to peel potatoes at the kitchen sink at home.  The tribunal asked, if this were the case, how the claimant had managed to remain in work between 12 December 2002 and 27 January 2003, when she was required to stand at work all day.  Mr Canavan stated that, as the claimant had not directly addressed the matter of whether she stood or sat down at work in her evidence, neither he nor the tribunal was in a position to know whether the claimant stood or sat at work.  The tribunal regarded this answer as, at best, evasive.  Medical evidence placed before the tribunal by the claimant, Mr McCormack’s medical report of 3 June 2003, compiled after the Consultant’s examination of the claimant, states – “[The pain] was exacerbated at her place of work, where she stood and lifted a lot of weights continuously …”.  The tribunal concludes that Mr McCormack wrote this on the instructions of the claimant.  Her employer, Mrs Miller, in evidence stated, albeit in a self-serving context – “If her back was bad, it wouldn’t be an ideal job for her to be doing.  On her feet all day, lifting, moving stuff about”.  There was no challenge to Mrs Miller’s evidence in this respect.  On this basis, and on the basis of the additional matter put to her in cross-examination, that she had continued working in the respondent’s preparation room for seven weeks after the accident, doing continual heavy lifting, the tribunal entertained serious doubts as to the accuracy of the claimant’s account of her symptoms and difficulties to the tribunal during the period.

18.	Two other extracts from the medical records support the tribunal’s conclusion on this issue.  A document labelled ‘Foyledoc-Mournedoc’ at page 44 of the claimant’s bundle, records the claimant’s admission and emergency treatment for back pain on 25 January 2003.  The doctor’s notes on the subject state – “Had a fall at work four weeks ago.  Hurt back”.  From this it seems reasonably clear that, at this stage at least, the claimant had only a very rough idea of when exactly her fall had taken place (‘four weeks ago’ would have placed the accident in or around 28 December).  Second, in his first report on the claimant on 3 June 2003, Mr McCormack states, once more it can only be assumed on the claimant’s instructions – “Ms Stephanie Cunningham fell onto a cement floor, landing on her bottom.  This lady was not sore immediately and was bruised around  her back at that time, but subsided over a period of 2 - 3 weeks.  I understand that pain in the lower part of her back began about 4 weeks after her injury and this was associated with pain down into her left leg also.”  Allowing for a similar degree of approximation in the claimant’s estimate to Mr McCormack as in her estimate to Dr Crook of Foyle.doc-Mourne.doc, this would place the beginnings of the claimant’s symptoms a good deal closer to 27 January 2003 than to 12 December 2002.

19.	Accordingly, the tribunal declined to find that, at the time of her dismissal,                      3 or 10 February, the claimant established that she had been adversely affected in her ability to carry out normal day-to-day activities, with the exception of the brief period between 25 January and 3 February when, as a result of a sudden episode of back pain, she had been advised by her doctors to rest as the most effective form of pain relief.

20.	Substantial adverse impact

	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.

21.	Long-term effect

	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.

22.	The Code of Practice at Annex 1 – ‘What is meant by Disability?’ at paragraph 8,	dealing with ‘long-term’ effect recalls that an injury may be quite serious, without	nevertheless satisfying this element of the definition – “Effects which are not long-term would 	therefore include loss of mobility due to a broken limb which is likely to recover within 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).

23.	The tribunal had to determine therefore whether, at the time of her dismissal, it was 	more probable than not that the claimant (who was very recently, on the facts found by	the tribunal, affected by severe back pain, and who had been advised to rest by her	doctors as the most effective form of pain relief), would continue to suffer the effects in	12 months’ time or more.  In accordance with the guidance at B.8, the tribunal was 	entitled to take account of the period before the alleged discriminatory act.  For reasons	already outlined, the tribunal conclude that this is unlikely to have been more than a	week or two at most.  In the period subsequent to the discriminatory act, the effects of	the impairment have, if anything, worsened, and they have persisted for three years.  No	evidence was led as to the typical duration of the effects of the claimant’s impairment 	and the tribunal is in no position to speculate on such matters.  The claimant is a young	woman, whose state of health according to the medical evidence is, apart from her back	condition and recurrent bouts of depression, otherwise good, although the medical	records attest to a problem with her being overweight.  The tribunal does not find these	considerations of much assistance in deciding the issue.

24.	Of more assistance, in the tribunal’s view, is that the claimant’s real impairment was not	identified until May 2004, some 17 or 18 months after the fall that caused it.  Despite 	having seen a number of doctors and an Orthopaedic Consultant in the period from	January to June 2003, no-one had managed to diagnose the claimant’s impairment.  An	x-ray, taken on 12 February 2003, as close as possible to the claimant’s dismissal, 	disclosed little.  The Consultant Radiologist noted –

“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”.

25.	Harvey on Industrial Relations and Employment Law, at Division L, B, 	paragraph [1327] cites the case of Latchman –v- Reed Business Information	Limited [2002] ICR 1453, EAT.  In that case, the issue for decision was whether a	depressive illness of a dismissed applicant could be categorised as a disability, under	Schedule 1, paragraph 2(b) – that is, it is likely to last for at least 12 months provision.  	It was held that it could not be so categorised, on the evidence available at the time of	the dismissal, and it was no answer to say that because, as a matter of fact, it had gone 	on to last for the minimum required period, the test should have been seen as having	been met.  In the relevant respects, identical considerations apply here.  On the 	evidence available at the time of her dismissal, it could not have been said that the	effects of the claimant’s condition were likely to last for a period of at least 12 months.

26.	On this basis, the tribunal finds that in respect of this condition also, the claimant 	fails to satisfy the definition of disability within the meaning of the Act.  Accordingly	the claimant’s claim is dismissed.

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: