THE INDUSTRIAL TRIBUNALS

CASE REF:  178/06

CLAIMANT:			Paul Andrew Cowan

RESPONDENT:		Tegral Building Products NI Limited

DECISION ON A PRE-HEARING REVIEW

The Claimant does not have a disability within the meaning of section 1 of the Disability Discrimination Act 1995.

Constitution of the Tribunal:

Chairman (Sitting Alone):		Mr M G O’Brien 

Appearances:

The Claimant did not appear and was not represented.

The Respondent was represented by Ms A Finnegan, of Counsel, instructed by McKinty & Wright, Solicitors.

Sources of Evidence

The Claimant did not appear, did not tender any evidence or written representation.

The Respondent’s Counsel made representations. 

Findings of Fact

1.	By his claim, presented on 9 February 2006, the Claimant asserted he had been employed by the Respondent from 4 January 2002 to 10 November 2005 as a sales representative for the areas covering Armagh, Tyrone, Fermanagh, Down and Belfast.  The Claimant asserted at section 6.3 of the claim form that he worked 37 hours per week, and earned £2,188.75 per month gross: £1, 325.00 per month nett.  The Claimant claimed he was paid four weeks pay in lieu of notice.  At section 7.1 of the claim form, the Claimant expanded on his claim;

	On Monday 24 October 2005 I was driving down the M1 towards Belfast going to a customer when I blacked out at the wheel and crashed.  I then spent four days at the RVH hospital where I was undergoing tests.  I was advised by my doctor not to drive for 12 months, but would be reviewed on 31 January 2006, and in the meantime would still undergo tests.  I was visited by my sales manager in hospital where I advised him of the 12 months and the review and he replied “we will cross that bridge when we get to it”.  On Monday 6 November we again talked, and I said I wanted to get my stuff out of the car which was in Dromore, where my boss lives.  He said he wanted to meet me at his house on the Tuesday to sign an accident form and have my stuff from the car.

I rang again on Tuesday to say my lift had let me down but I could get to the office on the Wednesday or Thursday, but he was reluctant to meet me in the office.  Instead he asked me to meet at my house on the Thursday.

He arrived on the Thursday [9 November 2005] at my house and asked me to sign the accident form, which I did.  He then said about my situation that there was no easy way to say this, but I was being dismissed because my licence was froze (sic.).  I again said about my review and offered to get him medical reports, but was quickly dismissed and he said about getting a driver but he didn’t know anyone.  I asked for time to see if I could get anyone, but he again turned round to me being dismissed.  He said he had no vacancies internally at our Lisburn depot.  I received my letter from the Human Resources on Saturday 12 November 2005 from Athy, Co. Kildare, which was dated 10 November.

I went for my review on the 7 February where they have found my problem and were correcting it, and I have my licence to drive as soon as it is corrected.

On reflection, I feel I was dismissed premature and very quick.  They have not asked or done a medical investigation and have not followed any procedure before, during or after my dismissal.

I therefore feel I was unfairly dismissed under the Employment Rights (NI) Order 1996 and, furthermore, discriminated under the Disability Act 1995.
 
2.	By its response to the claim, presented on 20 March 2006, the Respondent asserted at section 3.3 that the Claimant had been dismissed, but asserted at section 3.5 that the Claimant had not raised a grievance about this dismissal.  At section 3.6 of the response form, the Respondent contended that the Claimant had not appealed the dismissal.  The Respondent contended at section 4.2 that the Claimant’s dates of employment are 7 January 2002 to 10 November 2005, and at sections 4.7 – 4.9 that the Claimant’s hours of work and pay details as given were correct.  At section 6.2 of the response, the Respondent set out an extensive rebuttal of the Claimant’s assertions.  Essentially, this rebuttal states that driving was an essential element of the Claimant’s job, that he drove 30,000 miles per annum, and that his position required, by contract, a clean driving licence.  The response asserts that on 24 October 2005 the Claimant was involved in a road traffic accident, having suffered a black out which required hospitalisation.  The Claimant informed his sales manager, David McMurty, that his driving licence was suspended for 12 months, and that a medical report from the Claimant’s GP would be provided.  This medical report was never provided.  Moreover, the response asserted that no alternative position could be found for the Claimant at the Respondent’s Lisburn premises.  The Respondent therefore formed the view that provision of a driver was impracticable for 12 months, and that to allow the Claimant to drive whilst his licence was suspended would contravene the Road Traffic (NI) Order 1981.  The decision was therefore taken to dismiss the Claimant.  A letter was sent to the Claimant dated 10 November 2005 in this regard.  The Claimant did not appeal his dismissal.  The Respondent contended it dismissed the Claimant fairly, pursuant to Article 130(2) (d) of the Employment Rights (NI) Order 1996.  The Respondent contended that it did not know the Claimant was disabled, and therefore was not under a duty to make any reasonable adjustments to accommodate any such disability.

3.	The Tribunal finds that the Claimant suffered an episode of syncope on 24 October 2005, as he was driving.  Syncope is a single episode of transient loss of consciousness associated with loss of muscle tone.  Syncope is not, of itself, a condition.  It is a description for a passing loss of consciousness.  The Claimant was admitted to the Royal Victoria Hospital in Belfast and underwent tests.  The Claimant had no prior history of such episodes, or of blacking out.  All investigations of the Claimant’s syncope have proven normal.  The Claimant suffered one single syncopal event, on 24 October 2005. Information generated by DVLNI and supplied to the Tribunal by the Respondent indicates that, pursuant to the Motor Driving Licence Regulations 1996, “loss of consciousness/loss of or altered awareness with no clinical pointers” will result in a revocation of the driving licence for 6 months.  The Claimant recovered his driving licence on 18 August 2006. 

The Issue to be Decided

4.	The issue to be decided in this Pre-Hearing Review is as follows;

	Whether the Claimant has a disability within the meaning of section 1 of the Disability Discrimination Act 1995. 

Applicable Law

5.	Section 1 of the Disability Discrimination Act 1995 [“the 1995 Act”] provides;

1.	–(1)	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.

(2)	In this Act “disabled person” means a person who has a disability. 

6.	Paragraph 2 to Schedule 1 of the 1995 Act provides;

Long-term effects
	
 	    2. - (1) The effect of an impairment is a long-term effect if- 
 	
 	(a) it has lasted at least 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.	
 	    (2) Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.
 	
 	    (3) For the purposes of sub-paragraph (2), the likelihood of an effect recurring shall be disregarded in prescribed circumstances.
 	
 	    (4) Regulations may prescribe circumstances in which, for the purposes of this Act- 
 	
 	(a) an effect which would not otherwise be a long-term effect is to be treated as such an effect; or	
 	(b) an effect which would otherwise be a long-term effect is to be treated as not being such an effect.	

7.	Paragraph 4 of Schedule 1 to the 1995 Act provides;

	4. – (1)	An impairment is to be taken to affect the ability of a person concerned to carry out normal day-to-day activities only if it affects one of the following-
	
(a)	Mobility;

(b)	Manual dexterity;

(c)	Physical co-ordination;

(d)	Continence;

(e)	Ability to lift, carry or otherwise move everyday objects;

(f)	Speech, hearing or eyesight;

(g)	Memory or the ability to concentrate, learn or understand; or

(h)	Perception of the risk of physical danger.

8. 	Section 59(1) (a) of the 1995 Act which provides;

59(1)	Nothing in this Act makes unlawful any act done-

(a)	in pursuance of any enactment; or

(b)	in pursuance of any instrument made by a Minister of the Crown under any enactment; or

(c)	to comply with any condition or requirement imposed by a Minister of the Crown (whether before or after the passing of this Act) by virtue of any enhancement…

The Decision of the Tribunal

9.	The Tribunal wishes to emphasise that it has considered the assertions in the claim and the response, pursuant to Rules 27 (5)-(6) of the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 2005 [“the 2005 Rules”].

10.	In deciding whether the claimant has a disability, the Tribunal is cognisant that the burden of proof rests squarely on the Claimant in this regard.  The Claimant has chosen not to give evidence to the Tribunal, to make a written representation or be represented by another. 

11.	The Tribunal has addressed separately the four questions set out by the Employment Appeal Tribunal in Goodwin v The Patent Office [1999] IRLR 4, and the further guidance of Her Majesty’s Court of Appeal in Northern Ireland in the case of Ross v Precision Industrial Services Limited & Du Pont (UK) Limited [2005] NICA 25.  In deciding whether or not there is a disability, Goodwin enunciated the questions to be considered as;

(i)	Does the claimant have an impairment which is either mental or physical?

(ii)	Does the impairment affect the claimant’s ability to carry out normal day-to-day activities in one of the respects set out in Schedule 1 paragraph 4(1) of the 1995 Act, and does it have an adverse affect?

(iii)	Is the adverse effect substantial?

(iv)	Is the adverse effect long term?

The First Question – does the claimant have a physical or mental impairment?

12.	There is no evidence before the Tribunal upon which it could make any reliable finding of fact that the Claimant has a physical or mental impairment. 

	The Second Question – does the impairment affect the claimant’s ability to carry out day-to-day activities, and does it have an adverse effect?

13.	In respect of the claimant’s day-to-day activities, the Tribunal is not satisfied the claimant meets the provisions of paragraph 4, and in particular paragraph 4(1) (f) – (h), of Schedule 1 to the 1995 Act. The finding of the road traffic accident on 24 October 2005 is not the same as a loss of ability to concentrate, learn or understand, or impairment of the risk of physical danger.  

The Third Question – is the effect substantial?

14.	The Tribunal is not satisfied there is any basis for a finding of fact that the Claimant’s syncopal episode on 24 October 2005 had a substantial adverse effect on his ability to carry out day to day activities, pursuant to paragraph 5 of Schedule 1 to the 1995 Act.  The Tribunal has had regard to the Guidance on matters to be taken into account in determining questions relating to the definition of disability, as it is required to do by section 3(3) of the 1995 Act.  From the Guidance, it is clear that a substantial effect is one that is more than “minor” or “trivial”.  The Guidance allows the Tribunal to consider the cumulative effect of a person’s forgetfulness and perception of the risk of physical danger, and the effects of modifications to behaviour to prevent or reduce the effects of impairment on normal day-to-day activities.  The finding of fact is that the Claimant suffered a one-off transient event on 24 October 2005, and that this was without precedent or recurrence.  The Claimant’s assertions in his claim form that this event had a detected cause is not evidenced before the Tribunal by means of any oral or documentary proof from him.  The Tribunal regards the return to him of his driving licence on 18 August 2006 as fortification for its determination that the event of 24 October 2005 had no substantial effect on the Claimant. 

The Fourth Question – is the adverse effect long term?

15.	If there were any doubt about the Tribunal’s determinations in respect of the foregoing, this must be completely dispelled by the Claimant’s failure to satisfy the fourth, conjunctive, question set out in Goodwin v The Patent Office and in Ross v Precision Industrial Services Limited & Du Pont (UK) Limited.  It is clear from the findings of fact that the syncopal episode that occurred on 24 October 2005 was without precedent, and without recurrence.  This much is to be inferred from the fact the Claimant recovered his driving licence on 18 August 2006.  Between these two dates, the Respondent was precluded from driving by DVLNI, pursuant to the Motor Driving Licence Regulations 1996 because of a loss of consciousness/loss of or altered awareness with no clinical pointers.  Pursuant to the 1996 Regulations, the Claimant’s driving licence was suspended for six months.  Given the provisions of section 59 of the Disability Discrimination Act 1995, it is clear beyond peradventure that the Respondent could not be taken to have discriminated against the Claimant between 24 October 2005 and 18 August 2006.

16.	The definition of disability in section 1 of the 1995 Act is linked to paragraph 2 of Schedule 1 to the same Act.  For a person to come within the provisions of the definition of disability, his impairment must also be long term in nature.  Pursuant to paragraph 2(1) (a) of the Schedule, it must have lasted at least 12 months.  It is clear the Claimant’s syncopal episode has not lasted this long, for his syncopal event occurred on 24 October 2005 and his driving licence was returned on 18 August 2006.  There is no evidence before the Tribunal, and no finding of fact made, that the Claimant can satisfy the provisions of paragraph 2(1) (b) or 2(1) (c), or paragraphs 2(2)-(3) of Schedule 1 to the 1995 Act.  Accordingly, the Tribunal has no evidence before it to make any reliable determination that the Claimant’s syncopal episode has left a long term effect upon him.

17.	It follows from the above that the Claimant cannot satisfy the exacting provisions of the legal definition of disability, and therefore the Tribunal determines the single issue put before it in the negative.

Chairman:

Date and Place of Hearing:	24 May 2007, Belfast

Date decision recorded in register and issued to the parties