[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McMonagle v Seagate Technology [2007] NIIT 5314_03 (20 August 2007) URL: http://www.bailii.org/nie/cases/NIIT/2007/5314_03.html Cite as: [2007] NIIT 5314_3, [2007] NIIT 5314_03

[New search] [Printable RTF version] [Help]

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 5314/03

CLAIMANT: Adrian Paul McMonagle

RESPONDENTS: 1. Seagate Technology

2. Stephen Gallagher

3. Michael Harper

DECISION ON A PRE-HEARING REVIEW

The decision of the Chairman is that the claimant was not disabled within the meaning of the Disability Discrimination Act 1995 during the period between 18 January 2002 and 20 June 2003. The disability discrimination claim is therefore dismissed.

Constitution of Tribunal:

Chairman: Mr N Kelly (Sitting Alone)

Appearances:

The claimant had appeared in person and was unrepresented.

The respondents were represented by Mr Peter Bloch of the Engineering Employers' Federation.

This is a pre-hearing review conducted by a Chairman sitting alone under Rule 18(2) (a) of Schedule 1 to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005.

THE ISSUE

1. The issue listed for determination at this pre-hearing review was "whether the claimant has a disability within the meaning of the Disability Discrimination Act 1995".
2. In the circumstances of this case, the wording of this issue posed significant difficulty. The claimant's complaints of discrimination on the ground of disability refer to his dismissal on 20 June 2003 but also refer to a range of issues which pre-date that dismissal. The only allegations of discrimination for which a date is specified or otherwise ascertainable from the claim form are the allegations relating to the dismissal and the allegation that no reasonable adjustments were provided in the period immediately following his surgery in January 2002. No dates were provided in the claim form for the following matters which were alleged to involve disability discrimination:-

(a) the receipt of warnings;

(b) the non-receipt of pay increases "for several years";

(c) various remarks from Michael Harper, Patrick Miskelly and Stephen Gallagher;

(d) the refusal of unpaid leave; and

(e) the failure to properly consider medical evidence.

3. Despite asserting in his claim form that he had "notes, comments and minutes in great depth on all of these incidents", the claimant at the hearing was unable to provide a single date for these alleged acts of discrimination. His written response to the question in paragraph 12 on the claim form was "20 June 2003 and previous".
4. When pressed by me, he stated that he was alleging discrimination had commenced after he had surgery in January 2002 and that this discrimination had continued until his dismissal on 20 June 2003.
5. The question of whether or not a claimant is disabled for the purposes of the Act has to be determined by reference to the dates of the alleged acts of discrimination – Cruickshank v Vaw Motorcast Ltd [2002] ICR 729. Determining the issue of disability without reference to the timeframe of the alleged acts of discrimination would be of no use in substantively determining the claim. I therefore made it plain to the parties that I was going to determine the following amended issue;

"Whether the claimant had a disability within the meaning of the Disability Discrimination Act 1995 between 18 January 2002 (the date of surgery) and 20 June 2003 (the date of dismissal)".

THE LAW

6. Section 1(1) of the Act provides -

"(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 affect on his ability to carry out normal day to day activities".

7. Paragraphs 4(1) of Schedule 1 to the Act defines "day to day activities". It provides;

"4(1) An impairment has 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 –

(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 ability to concentrate, learn or understand; or

(h) perception of the risk of physical danger."

8. Paragraph 6(1) of Schedule 1 deals with the effect of medical treatment as follows;-

"6(1) An impairment which would be likely to have a substantial adverse effect on the ability of the person concerned to carry out normal day to day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as having that effect.

(2) In sub-paragraph (1) "measures" includes, in particular, medical treatment and the use of a prosthesis or other aid."

9. In Goodwin v The Patent Office [1999] IRLR 4, the EAT stated that a tribunal determining disability for the purposes of the Act should answer the following four questions;

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

(2) 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 effect?

(3) Is the adverse effect substantial?

(4) Is the adverse effect long-term?"

ONUS OF PROOF

10. The burden of proof is on the claimant. In other words, it is up to the claimant in this case to prove that he was a disabled person for the purposes of the Act during all or part of the relevant period ie the period between 18 January 2002 and 20 June 2003. In Ross v Precision Industrial Services Ltd & Du Pont (UK) [2005] NICA 25, Kerr LCJ stated at paragraph 39;

"The onus of establishing that he was substantially affected in manual dexterity and lifting ability rested squarely on the respondent."

EVIDENCE OF THE CLAIMANT

11. The claimant appeared to be totally unprepared to deal with the issue which had to be determined at this pre-hearing review. Although he had copies of all the medical documentation which he and the respondents had disclosed, he did not appear to have read these documents, and appeared unfamiliar with their content. He was vague about dates and times and also at certain points his evidence was inconsistent with the content of the medical reports. I will deal with these issues in more detail later. The inconsistencies and general vagueness may be partly explained by the length of time it has taken for this case to progress to a preliminary stage but I have concluded that the claimant's oral evidence is not credible and also that he has to a substantial degree exaggerated his symptoms during the relevant period for the purposes of this hearing.
12. The claimant's oral evidence was as follows;

(i) He started to suffer from an anal fissure in 1999. He spent the following 18 months trying to resolve the problem with various creams and suppositories. These treatments were unsuccessful. He had a day procedure on 20 July 2001 which involved Botulism Toxin injections. That treatment was also unsuccessful. On 18 January 2002 he had surgery ie a Lateral Sphinteronomy. This treatment was also according to the claimant unsuccessful.

(ii) The claimant stated that he had spent his "last three years with Seagate" ie the period from mid 2000 to 20 June 2003 "totally taken over with excruciating pain". This would accord, in terms of time at least, with his statement on his claim form that "I have anal fissures which are tears in my back passage which have restricted my personal and working life for the past three years". His oral evidence was that he had pain on defecation and that on each occasion this pain lasted for several hours afterwards. In the course of his oral evidence he first described this period as lasting for twelve hours and then subsequently described it as lasting for eight to ten hours. His "days ceased" once he had defecated. During these periods he suffered from "intense throbbing pain" and could not do anything. He "just rocked back and forwards". He would sometimes lie in a hot bath or clutch a hot water bottle to ease the pain. The next day he would be "fine".

(iii) He stated he was able to go for a few days between episodes of defecation and that during these periods he could function normally.

(iv) He stated that during the relevant period he was on a high fibre diet and that he used prescription painkillers, gels and faecal softeners.

(v) He stated in response to cross-examination that his condition was "really bad" at the time of his dismissal ie on 20 June 2003. He was certain that it was as bad as it had ever been. When it was put to him that this contradicted what he had said in his claim form ie that he had improved significantly over the nine months prior to signing the claim form on 17 September 2003, his response was "this is my problem. My problem is dates and times".

(vi) The claimant stated that he had advised his GP of the problems he was having ie that he was experiencing incapacitating pain for lengthy periods after each episode of defecation.

(vii) After the operation on 18 January 2002, there was an initial improvement which, after a period of perhaps a couple of weeks, ceased. The anal fissure did not heal. He was still in pain "and discomfort" after going to the toilet. He "still had the same problem". But this was "probably not as bad as before". This apparent indication of some lasting improvement was immediately contradicted by a statement that "it wasn't any better – equally the same way as it was – hot water bottle and everything". From 2002 until his dismissal in June 2003, things were "in or around the same".

(viii) The claimant stated that when he was examined by Dr McCrea, the respondent's occupational health specialist, on several occasions, he told Dr McCrea in detail of the difficulties he was experiencing.

(ix) He could go three to four days without going to the toilet and these were the only periods during which he experienced relief from pain. When it was put to him that this contradicted what he had told Dr McCrea during an examination on 10 January 2003, no explanation was provided for this contradiction.

13. The claimant's documentary evidence comprised what the claimant stated was a copy of his GP's file. His GP was not called to give evidence. Much of the file was illegible and the papers did not appear to be in chronological order. I invited the claimant to refer me to whatever parts of the papers that he specifically wished me to consider. He declined. Nevertheless I have read carefully through the documentation to the extent that it is legible and it appears to disclose;

(i) The first mention of an anal/rectal problem appears on 10 August 2000.

(ii) The computerised record of prescriptions indicates prescriptions for various creams, suppositories and faecal softeners from September 2000 to 2005. The record ceases at that point.

(iii) The same computerised record of prescriptions indicates prescriptions for painkillers ie Co-codamol or ibuprofen on 4 February 2002, 8 August 2002, 15 November 2002, 14 February 2003, 30 May 2003, February 2004 and 26 April 2004. The first such prescription was sufficient for 12 days at the dosage prescribed and the rest were sufficient for 28 days at the dosage prescribed. This intermittent pattern of prescription does not appear to support the claimant's evidence that he was suffering from excruciating pain for a lengthy period each time he went to the toilet between 1999 and the date of his dismissal and indeed beyond the date of his dismissal.

(iv) The manuscript GP notes disclose no visits by the claimant to his GP between 18 August 2001 and 17 December 2002. It would however appear that at least one page of the notes is missing. There is only one reference that I can see to "pain post defecation" but no reference anywhere to that pain being incapacitating or to that pain lasting for a period of several hours.

(v) Correspondence from the claimant's consultant Mr Neilly dated 11 March 2002 stated that his anal fissure did not heal completely after the operation on 18 January 2002. He stated "he continues to have pain and occasional bleeding. His experience is more of discomfort rather than pain at present". "On examination today he has a very small residual fissure and I expect that this will completely heal in due course. I have made no formal arrangements to review him".

(vi) Another letter from Mr Neilly dated 9 January 2001 refers to anal pain commencing six months previously. "The pain occurs with each episode of defecation and lasts for several hours afterwards." An earlier letter of 14 May 2001 refers to "a severe spasm in the peri-anal region".

(vii) I can see no other reference in the claimant's bundle which would assist in the determination of this pre-hearing review.

EVIDENCE OF THE RESPONDENTS

14. The claimant was examined by Dr McCrea, an occupational health specialist on 15 August 2000, 31 July 2001, 2 October 2001, 8 October 2001, 4 April 2002, 6 September 2002 and 10 January 2003. Copies of those reports had been produced before the hearing and furnished to the claimant. It emerged in the course of the hearing that the notes upon which those reports had been based had not been disclosed to the claimant. Those notes were photocopied and furnished to the claimant to read. I took the claimant through each of the sets of notes and gave him an opportunity to comment on each of them. The notes appeared to correspond to the type-written reports which had been based upon those notes. The reports can be summarised as follows;

(i) the first report dated 15 August 2000 followed two sick notes from the claimant's GP dated 27 July 2000 and 18 August 2000 for a total of six weeks absence on the ground of "acute stress". There was no mention of an anal fissure in the two sick notes, the medical report or Dr McCrea's notes.

(ii) The second report dated 31 July 2001 followed two sick notes both dated 10 July 2001 which certified back pain for the period from 19 June 2001 to 27 July 2001. Dr McCrea's report states that the claimant had developed a bowel problem in June 2000. The report refers to "problems standing or sitting with pain in his lower back as a consequence of the bowel problem which remains ongoing". The notes refer to an anal fissure but neither the notes or the report record any complaint of incapacitating pain for hours after each episode of defecation.

(iii) The third report dated 2 October 2001 followed a four week sick note issued on 14 August 2001 which referred to an anal fissure. The report records that the claimant's "symptoms remain ongoing and he still has problems with his mobility, sitting or standing because of the pain and discomfort". The notes record that the claimant stated that he spent the day lying in bed – that he was unable to walk because of pain and that lying in the bath helped the pain.

(iv) The fourth report dated 8 October 2001 records that the claimant continued to suffer problems with mobility, sitting or standing because of pain and discomfort. It notes planned surgery and records that the claimant should be able to return to work once the situation has settled down after surgery.

(v) The fifth report dated 4 April 2002 records that the surgery had been completed in January 2002 and that the claimant had been advised that the condition would heal through time. It recorded that there appears to be a significant improvement. It estimated the healing period of four weeks. He was fit to return to work.

(vi) The sixth report dated 6 September 2002 records that the claimant was at work. It noted that the anal fissure had not healed completely and that the claimant needed reasonable access to a toilet once per day. It refers to difficulties on two occasions. I have taken this as a reference to incontinence but, if it is, it is the only such reference and incontinence featured no where in the claimant's oral or written evidence. The report and notes referred to pain on defecation but there is no reference to incapacitating pain for a period of several hours post defecation. Since the claimant was at this stage using the toilet at work, I would have expected episodes of incapacitating pain to have been noted somewhere in the evidence.

(vii) The seventh and final report from Dr McCrea dated 10 January 2003 followed a certified period of absence from 18 December 2002 on the ground of depression, stress and anxiety. The report recorded "currently with respect to his gastro intestinal problem, things seemed to have settled down reasonably well over the past 18 days and from Adrian's viewpoint he is hopeful that this marks a significant improvement in previous situations". There is no mention of incapacitating pain or of painkillers. The claimant was on a reducing dosage of faecal softener.

15. Dr McCrea's oral evidence was that when he examined a patient, he would have offered that patient the opportunity to tell his history and that his history would have been recorded in the report. It was his opportunity to give his side of the story. He stated that he had given this opportunity on each occasion to the claimant and that he had recorded what he had been told. If he had been told that there had been lengthy periods of incapacitating pain throughout the relevant period, he would have recorded that statement. The claimant mentioned on only one occasion that he was having problems after going to the toilet and that was on 8 October 2001 ie in the period immediately before surgery. That statement was recorded in the notes of the examination and referred to in the report. The notes record "still having problems sitting/standing following toilet", that he spent the day lying in bed and that lying in the bath helped the pain. Those symptoms were confirmed in the examination and report dated 8 January 2002 again in the period leading up to surgery. After surgery on 18 January 2002, the claimant did not complain to Dr McCrea of the extensive symptoms that he described to this tribunal.
16. Dr McCrea said that there would have been some significant difficulties before surgery and after surgery there was little evidence of difficulty.

THE ROLE OF THE TRIBUNAL

17. The claimant was unrepresented and appeared to be completely unprepared for this hearing. He called no medical evidence and did not even appear to have read his own medical reports much less the reports furnished by the respondents. It would in any event have been extremely difficult for an unrepresented claimant to deal with the technical issue which was being considered at this hearing. I was conscious of the provisions of Regulation 3(2) of the Industrial Tribunals (Constitution Rules and Procedure) Regulations (Northern Ireland) 2005 requiring me to ensure that the parties are on an equal footing and that the case is dealt with expeditiously, fairly and in a manner which is proportionate to its complexity and importance. I also considered observations of Morrison J in Goodwin v The Patent Office where he stated "the role of the Industrial Tribunal contains an inquisitional element, as Rule 9 of the Industrial Tribunals Rules of Procedure 1993 indicates." I was concerned that the parties were clearly not on an equal footing and that the claimant was not effectively advancing his case. He was apparently unable to pinpoint the dates of the alleged discrimination. His documentary evidence appeared to be incomplete and his oral evidence was vague and inconsistent.

The role of the tribunal was further considered by the Court of Appeal in McNicol v Balfour Beatty Rail Maintenance Ltd [2002] IRLR 711. In that case the Disability Rights Commission intervened by way of submission in relation to the issue of whether or not a tribunal should be "quasi-inquisitorial" when dealing with the issue of whether a person is disabled. The Court held;

"As to the function of the tribunal it was submitted that it should adopt an inquisitorial and more proactive role in disability discrimination cases, as they can be complex and involve claimants whose impairment leads them to minimise or to offer inaccurate diagnoses of their conditions and of the effects of their impairment. I do not think it would be helpful to describe the role of the employment tribunal as "inquisitorial" or as "proactive". Its role is to adjudicate on disputes between parties on issues of fact and law. I agree with the guidance recently given by Lindsay J in Morgan v Staffordshire University [2002] IRLR 190 at paragraph 20. The onus is on the claimant to prove the impairment on the conventional balance of probabilities. In many cases there will be no issue about impairment. If there is an issue on impairment, evidence will be needed to prove impairment. Some will be difficult borderline cases. It is not however the duty of the tribunal to obtain evidence or to ensure that adequate medical evidence is obtained by the parties. That is a matter for the parties and their advisers. Sensible and sensitive use of the tribunal's flexible and informal procedures and its case management powers enable it to do justice on this issue by reminding the parties at the directions hearing of the need in most cases for qualified and informed medical evidence, bearing in mind that an unrepresented person may need some explanation about what is involved and what is required and also bearing in mind the cost of obtaining such evidence, the need to keep costs down and the limited resources available to many parties in the employment tribunal. The tribunal may also grant an adjournment where it is appropriate for evidence to be obtained and the issue of impairment."

18. I have considered whether it would be appropriate to relist this matter for further argument and to enable the claimant to obtain further evidence including in particular a complete set of his GP's notes. I have decided that it would be inappropriate to do so. This case has been running since 2003 and the claimant had been advised of the specific issue which was to be determined at this pre-hearing review. I am also satisfied after reading the record of an unrelated Pre-Hearing Review on 17 May 2006, that the claimant was at that stage considering calling medical evidence to prove disability and that he was aware of the need to do so. I am not certain that he would be any more prepared to deal with this issue if he was given a further opportunity. Furthermore, it was entirely up to him to ensure that the medical evidence which he furnished was complete. I have also concluded that his evidence before this tribunal was in some respects not credible and that he deliberately exaggerated his symptoms for the purposes of this hearing. I have therefore decided not to delay this matter further and to determine the issue on the evidence before me.

FINDINGS OF FACT

19. As indicated above, the claimant alleged in oral evidence that he first suffered from an anal fissure in 1999. There is no reference to this problem in Dr McCrea's report dated 15 August 2000 or in the sick notes issued by the claimant's general practitioner which have been produced in evidence. The claimant offered no evidence in support of this claim other than his unsupported assertion. Having gone through the GP file carefully, I can see no reference to an anal fissure before August 2000. This date would fit with the reference in a letter from Mr Neilly, the claimant's consultant, dated 9 January 2001 in which he stated that the claimant's condition started "six months ago". I therefore conclude that the medical condition started in or around August 2000 and not, as the claimant alleged on more than one occasion before this tribunal, in 1999.
20. As indicated above, the claimant alleged he suffered pain on defecation and that he was incapacitated with pain for several hours afterwards on each occasion. At different points in his evidence he asserted that this incapacity lasted for twelve hours and then for eight to ten hours. There is no reference in the manuscript GP notes to which I have been referred which supports this claim. There are however letters from Mr Neilly dated 9 January 2002 and 15 May 2001 which tend to support the claim at those points in time. That evidence tends to be supported by Dr McCrea's documentary evidence in relation to the examinations on 8 January 2002 and 2 October 2001 together with Dr McCrea's oral evidence to this tribunal. That documentary evidence does not deal with the degree of pain or incapacity suffered on each of these occasions and the only evidence that the pain was "intense" "excruciating" or absolutely incapacitating is the claimant's own testimony which I have concluded is not reliable. Nevertheless, examining the evidence as a whole, both documentary and oral, I conclude on the balance of probabilities that in the period leading up to surgery on 18 January 2002, the claimant did suffer incapacitating pain for a period of some hours on each occasion of defecation.
21. The claimant's evidence was that his condition was "really bad" at the time of his dismissal ie 20 June 2003 and that it was as bad then as it had ever been. This directly contradicts the claimant's remarks in the claim form and that contradiction has not been explained. His evidence is also inconsistent with the reports compiled by Dr McCrea after surgery had been carried out and inconsistent with the fact that his last series of sick notes were not related to his anal fissure but were related to a mental health problem. I therefore conclude that the claimant has exaggerated and indeed has lied to this tribunal about the degree of pain and incapacity which he suffered in the period after his surgery on 18 January 2002. The claimant sought to explain this inconsistency by stating that he had difficulties with dates. I do not accept that explanation. This was not an issue about pinpointing a particular date or dates. This was a straightforward question and not something which the claimant could easily forget or be confused about.
22. The claimant's evidence in relation to his condition post surgery was inconsistent, confusing and at times incoherent. He stated that he "still had the same problem" after an initial improvement that he eventually estimated at two weeks duration. Within minutes he asserted it "was probably not as bad as before". This was followed rapidly by a statement that "it wasn't any better – equally the same way as it was – hot water bottle and everything". The claimant repeatedly asserted that he would only have had relief from the symptoms of pain during the entire period from 1999 up until the date of his dismissal and indeed beyond the date of his dismissal for three or four days at the most ie the period of between episodes of defecation. This directly contradicted the reference in Dr McCrea's report of January 2003 where he stated the claimant had had no problem for 18 days. This information could only have come from the claimant and I conclude after listening to the claimant and to Dr McCrea that Dr McCrea's report is accurate. I therefore conclude that the claimant's oral testimony in relation to the entire period post surgery can not be relied on at all.
23. The report of Dr McCrea dated 4 April 2002 noted significant improvement. That is consistent with Mr Neilly's letter of 11 March 2002. Neither report refers to any incapacity. I conclude that after the surgery on 18 January 2002 the claimant's medical condition improved significantly and that he did not suffer periods of incapacity as alleged after defecation. Since he was at work from April 2003 and using the toilet facilities at work, I would have expected clear evidence to back up those allegations. There was none.

DECISION

24. DOES THE CLAIMANT HAVE AN IMPAIRMENT WHICH IS EITHER MENTAL OR PHYSICAL?

I conclude that the claimant suffered from a physical impairment from August 2000 ie an anal fissure and that that impairment, while it was substantially reduced as a result of surgery on 18 January 2002, subsisted to some extent up to the date of dismissal ie 20 June 2003. The general practitioner's file and Dr McCrea's reports refer at certain points to another condition ie depression. When the claimant was asked in cross-examination whether he had received absence warnings as a result of absences caused by an anal fissure or as a result of absences caused by depression he replied "this is a fine line. I was getting treated for depression". However, the claimant in his claim form referred to only one condition ie an anal fissure, as a disability. There has been no application to amend that claim. The Court of Appeal (GB) in McNicol v Balfour Beatty Rail Maintenance Ltd referred to "the crucial importance (a) of claimants making clear the nature of the impairment on which the claim of discrimination is advanced and (b) of both parties obtaining relevant medical evidence on the issue of impairment." It would be wrong for me to consider an alleged impairment other than that put forward by the claimant in his pleadings and therefore the only relevant impairment for the purposes for this decision is the anal fissure.

25. 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 AND DOES IT HAVE AN ADVERSE AFFECT?

I conclude that on the basis of Dr McCrea's testimony and the GP's file that the claimant's impairment did adversely affect the claimant's ability in relation to mobility, ability to lift, carry or otherwise move every day objects and his ability to concentrate in at least some of the period between August 2000 and 18 January 2002 (the date of his surgery). This period pre-dates the relevant period ie the period during which the alleged acts of discrimination took place.

26. In relation to the period after 18 January 2002, Dr McCrea suggested in his report dated 2 April 2002 that the claimant was functionally coping with normal activities. I have been referred to (or given) no relevant GP notes relating to the period between the surgery on 18 January 2002 and the dismissal on 26 June 2003. The consultant's report on 7 March 2002 states that "his experience is more of discomfort rather than of pain at present". There is no mention of incapacity or any suggestion that the claimant's condition which was described as "a very small residual fissure" had any adverse effect on normal day to day activities as set out in Schedule 1.
27. I have considered whether the adverse effects which existed pre-surgery would have extended for any period after surgery but I do not have any evidence upon which I could accurately make such a finding. I therefore conclude that the impairment ie the anal fissure was substantially improved by the surgery on 18 January 2002 and that there is no evidence of an adverse effect on normal day to day activities after that date save for the two isolated episodes of apparent incontinence which are referred to in the claim form and also in one of Dr McCrea's reports.
28. IS THE ADVERSE AFFECT SUBSTANTIAL?

There was no adverse effect save for the two episodes referred to above. I have been given no detailed evidence in relation to those incidents but would be prepared to accept that on the basis of the claimant's reference in the claim form and on the basis of Dr McCrea's report that the effect was substantial on those two occasions.

29. IS THE ADVERSE AFFECT LONG-TERM?

The two episodes of incontinence shortly after surgery were isolated incidents and cannot be considered long-term for the purposes of the Act.

30. I have also considered whether the claimant's condition without medication would have amounted to a disability for the purposes of paragraph 6(1) of Schedule 1 to the Act. Only continuing treatment and not concluded treatment (such as the claimant's surgery) is relevant for the purposes of paragraph 6(1). The claimant suggested in this evidence that the high fibre diet, creams and faecal softeners did not assist him in a great deal. No medical evidence was in any event produced to clarify what the deduced effect would have been ie what his condition would have been without that medication. Again the onus lay firmly on the claimant to produce any such evidence and to clarify this point. In Woodrup -v- London Borough of Southwark [2003] IRLR 111, the Court of Appeal made a point of emphasising the "peculiarly benign doctrine of paragraph 6" and Simon Brown LJ commented "In any deduced effects case of this sort, the claimant should be required to prove his or her disability with some particularity. Those seeking to invoke this peculiarly benign doctrine under paragraph 6 of the Schedule should not expect to be indulged by the tribunal of fact. Ordinarily, at least in the present class of case, one would expect clear medical evidence to be necessary".

While Woodrup concerned a mental disability, I do not see why those remarks should not be equally applicable to the present case.

31. I therefore conclude the claimant was not disabled for the purposes of the Act during the period from 18 January 2002 to 20 June 2003.
32. The claim for Disability Discrimination is therefore dismissed.

Chairman:

Date and place of hearing: 20 August 2007, Limavady.

Date decision recorded in register and issued to parties: