THE INDUSTRIAL TRIBUNALS

CASE REF:	2623/06

CLAIMANT:			James Ian Wilkinson

RESPONDENT:		Belfast City Council

DECISION ON A PRE-HEARING REVIEW
The tribunal has concluded that the claimant is not a disabled person within the meaning of the Disability Discrimination Act 1995 and his claim is dismissed. 

Constitution of Tribunal:
Chairman (sitting alone):		Mr T Browne	

Appearances:
The claimant represented himself
The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Belfast City Council

The Issue

1.	The substantive issue before the tribunal is whether or not the claimant has established is that he is or was at the relevant time a disabled person for the purposes of the Disability Discrimination Act 1995 (“The 1995 Act”).

2.	Section 1(2) defines a disabled person as one who has a disability, which Section (1) defines as being; “…….. 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”.  The tribunal also has had regard to the Guidance issued by the Secretary of State under Section 3 of the 1995 Act.  The claimant sought to establish that he was disabled due to his mental condition, evidenced by poor concentration and panic attacks.

The Facts

3.	In determining the facts, the tribunal has had regard to the oral evidence and written materials placed before it as well as to the submission of both parties.  The respondent had obtained access to medical records of the claimant, to which he objected.  These were not placed before the tribunal, the respondent was not permitted by the tribunal to refer to them, and consequently their contents play no part in assessing whether or not the claimant is or was disabled.  

4.	It was common case that the claimant worked for the respondent from 20 November 1978 to 9 September 2006, when his employment was terminated on the grounds of permanent ill-health.  On 20 September 2006 the claimant was notified by the Superannuation Committee that the incapacity from which he was suffering did not make him permanently incapable of carrying out his duties and on that basis ill-health benefits which he was expecting would not be paid out immediately.  That decision was taken after a medical assessment by a doctor on behalf of the Northern Ireland Local Government Officers Superannuation Scheme (NILGOSC), which is an organisation entirely separate from the respondent in this case.

5.	The claimant then launched these proceedings on 5 December 2006 claiming in paragraph 7.1 “on 9 September 2006 my employment with Belfast City Council was terminated on grounds of permanent ill-health after 28 years service.  In a letter dated 20 September 2006 I was notified by NILGOSC (the superannuation committee) that, in the opinion of the committee’s doctor, the incapacity from which I was suffering does not make me permanently incapable of carrying out my duties.  I am informed that, on that basis, NILGOSC is unable to pay me immediate ill-health benefits.  My only income is incapacity benefit.  In view of the circumstances outlined above, I believe I have been discriminated against in the grounds of my disability”.

6.	The medical evidence that was placed before the tribunal identified the claimant as having had a significant history of anxiety and sleep related symptoms, but there was no specific medical evidence to confirm that the suffered from depression.  There was previous psychiatric evidence to show that there was no evidence of depression but “some mild anxiety features”.  In view of chronic sleep disturbance the psychiatrist who examined Mr Wilkinson previously diagnosed him as suffering from “non-organic insomnia” which is a sleep problem with no specific cause with secondary anxiety symptoms as a result of a poor sleep pattern.  This diagnosis was substantially adopted by the claimant in his own document prepared by him for the tribunal hearing.

7.	Anxiety and depression are recognised as two of the most common form of mental illness, and therefore could fall within the requirements of Schedule 1 to the 1995 Act.  The Guidance clearly indicates that impairments taken together could result in a substantial adverse effect.  There was however no medical evidence placed before the tribunal to this effect on behalf of the claimant.  The tribunal therefore had to assess the claimant’s case from his own evidence and from the medical evidence placed before it.  It was clear to the tribunal that the claimant is somebody with high intelligence, displayed in the way in which he conducted himself at the tribunal.  He was able to concentrate, to answer questions and to formulate and present his arguments in an appropriate and timely fashion.  This in my opinion runs entirely contrary to his submission that he has poor concentration.  His evidence at the tribunal was that he can read and write but that it takes an excessively long time, that he is easily distracted, that his mind wanders, and that he is forgetful.  Such symptoms, if true, could be consistent with the condition accepted in the Guidance in adversely affecting his memory or ability to concentrate, learn or understand consistent with a mental disability.  The claimant’s abilities in that regard are significant as confirmed by his acceptance that he has previously conducted tribunal hearings on his own during the time span that he alleges to have been disabled in the manner asserted by him, namely poor concentration.  This involved the preparation and presentation of his case over a long period of time.  He stated in evidence that he was able to do so because he was absolutely determined to present his case and that his intelligence and determination allowed him to rise above any problems in that regard.

Conclusions

8.	As referred to above, the law governing disability discrimination is contained in the Disability Discrimination Act 1995.  In the terms of Section1 sub paragraph 1 of the 1995 Act a person has a disability “if he has a physical or mental impairment which has a substantial long-term adverse effect on his ability to carry out normal day to day activities”.

9.	In applying the tests in Goodwin –v- The Patent Office [1999] IRLR4, I am satisfied from the evidence that the claimant suffered adverse mental impairments and that these lasted in excess of 12 months, thereby rendering them long term within the requirements of the 1995 Act.  In assessing the degree of those adverse effects, I have had particular regard to the evidence of the claimant.  I have formed the view that the claimant was not a truthful witness, and that his mental symptoms were exaggerated and in some instances fabricated by him at the hearing of this case.  That impression is reinforced by the disparity between his evidence at the tribunal, that he has/had poor concentration, and his ability to conduct lengthy, complicated tribunal proceedings both previously and on this occasion.  He produced at the tribunal a number of documents which he prepared in a timely fashion which were both detailed and lengthy. He also failed to produce any medical evidence which would give the tribunal sufficient assistance in reaching the conclusion that he suffered any relevant medical condition to the degree required under the legislation to assist the tribunal to conclude that he was a disabled person within the meaning of that legislation.

10.	The claimant has in my opinion failed by a significant margin to establish on the balance of probabilities that his mental impairments were substantial.  From this I conclude that he did not suffer from a disability for the purposes of the 1995 Act and therefore is not a disabled person for the purposes of the 1995 Act.

11.	In view of the above findings the tribunal has no jurisdiction to deal with the claimant’s claim of disability discrimination and it is dismissed.

Chairman:

Date and place of hearing:	1 June 2007, Belfast	

Date decision recorded in register and issued to parties: