THE INDUSTRIAL TRIBUNALS

CASE REF:  32/07

CLAIMANT:			David Irving

RESPONDENT:		Belfast City Council

DECISION ON A PRE- HEARING REVIEW
The decision of the tribunal is that the claimant was not suffering from a disability at the material time.  As the claimant’s claim is confined to disability discrimination, it must therefore be dismissed.

Constitution of Tribunal:

Chairman (sitting alone):			Mr Wimpress

Appearances:
The claimant was represented by Aoife MacManus of Donnelly & Kinder, Solicitors.
The respondent was represented by Mr Patrick Ferrity, Barrister-at-Law, instructed by the Director of Legal Services for Belfast City Council.

 1.	A preliminary hearing was arranged to consider the following issue:-

	Whether the claimant has a disability within the meaning of Section 1 of the Disability Discrimination Act 1995.

2.	Sources of Evidence
The tribunal heard evidence from the claimant, Dr Anderson, Consultant Psychiatrist and Dr Chada, Consultant Psychiatrist.  The tribunal also had the benefit of an agreed bundle which contained amongst other things the claimant’s General Practitioner notes and Occupational Health records.  The tribunal also was grateful for the helpful oral and written submissions by Ms MacManus and Mr Ferrity.  

 3.	The claim and the response 

In his claim form dated 8 December 2006 the claimant alleged that he had been discriminated against by virtue of his disability and had suffered harassment on the grounds of his disability contrary to the disability discrimination legislation.  The discrimination was alleged to have arisen from the respondent’s treatment of the claimant with reference to a disciplinary sanction which was imposed on the claimant on 7 April 2006.  The respondent in its response form dated 7 February 2007 denied that the claimant was disabled within the meaning of the Disability Discrimination Act 1995.  The respondent further denied discriminating against the claimant on the grounds of his alleged disability and denied subjecting the claimant to harassment.  The respondent asserted that at all stages it had taken into account the claimant’s medical condition.

 4.	The Tribunal found the following facts 

The factual background in relation to the disciplinary proceedings was not in dispute between the parties.  The claimant was employed as a leisure attendant by the respondent at the material time.  The events that gave rise to the disciplinary proceedings occurred in and around 24 March 2005 when complaints were made that the claimant had been consuming alcohol and sleeping on duty at Andersonstown Leisure Centre.  The claimant was on pool duties and it appears that he was physically sick at the pool side.  A preliminary investigation took place on 30 March 2005 which resulted in a decision that a full investigation should be carried out.  A full investigation was carried out under Stage 3 of the respondent’s disciplinary procedure.  The outcome of the investigation was a recommendation by the investigating officer that the matter be dealt with at a Stage 3 hearing.  A hearing took place on 26 October 2005, the upshot of which was that the investigating officer was asked to re-visit the interviews with five of the witnesses and to seek further reports from the respondent’s occupational health physician and employee counsellor.  A disciplinary hearing was convened on 23 March 2006 and having considered the matter the Disciplinary Panel decided that the allegations were substantiated and that Stage 3 disciplinary action was justified.  The claimant was informed that the Disciplinary Panel had determined that he should be given a final written warning which would remain on his file for twelve months.  In addition, the Disciplinary Panel decided that the claimant should be permanently transferred out of Andersonstown Leisure Centre.  The outcome of the hearing was confirmed to the claimant by letter dated 7 April 2006 and he was notified of his right to appeal.  The claimant exercised his right of appeal by letter dated 21 April 2006 in which he alleged that the panel had failed to take into account medical reports regarding his medication and its side effects.  An internal appeal was convened on 8 June 2006 and further hearings took place on 23 June and 5 July 2006.  Having considered the matter the Appeal Panel upheld the decision of the Disciplinary Panel and the claimant was informed of the Appeal Panel’s decision by letter dated 7 July 2006.  Thereafter the claimant invoked the respondent’s grievance procedure which ultimately concluded on 17 January 2007.

The Law

 5.	Section 1 of the Disability Discrimination Act 1995 defines the circumstances in which a person has a disability within the meaning of the Act as follows:

		“Meaning of "disability" and "disabled person".
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.” 

Paragraph 1(1) of Schedule 1 provides

1. - (1) "Mental impairment" includes an impairment resulting from or consisting of a mental illness only if the illness is a clinically well-recognised illness.”

Paragraph 2(1) of Schedule 1 provides:

“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.”

Paragraph 2(2) of Schedule 1 provides:

“(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.”

Paragraph 4(1) of Schedule 1:

“4. - (1) 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- 
	  ……. 
(g) “memory or ability to concentrate, learn or understand”

The Guidance

6.	Assistance is also found in the Guidance Notes issued by the Secretary of State under section 3 of the Disability Discrimination Act 1995.  In this particular case Sections C7 and C20 are potentially relevant. 

7.       Section C7 provides as follows:-
		“Where a person has a mental illness such as depression account should be taken of whether, although that person has the physical ability to perform a task, he or she is in practice, unable to sustain an activity over a reasonable period”.

8.	Section C20 provides as follows:-
Memory or ability to concentrate, learn or understand
Account should be taken of the person's ability to remember, organise his or her thoughts, plan a course of action and carry it out, take in new knowledge, or understand spoken or written instructions.  This includes considering whether the person learns to do things significantly more slowly than is normal.  Account should be taken of whether the person has persistent and significant difficulty in reading text in standard English or straightforward numbers. 

Examples 
It would be reasonable to regard as having a substantial adverse effect:-
- intermittent loss of consciousness and associated confused - behaviour; 
- persistent inability to remember the names of familiar people such as  
family or friends; 
- inability to adapt after a reasonable period to minor change in work 
routine; 
- inability to write a cheque without assistance; 
- considerable difficulty in following a short sequence such as a simple 
recipe or a brief list of domestic tasks.
 
It would not be reasonable to regard as having a substantial adverse effect:

- occasionally forgetting the name of a familiar person, such as a colleague; 
- inability to concentrate on a task requiring application over several hours; 
- inability to fill in a long, detailed, technical document without assistance; 
- inability to read at faster than normal speed; 
minor problems with writing or spelling. 

9.	In addition, paragraph C4 of the Guidance deals with recurring effects and provides as follows:
“The Act states that if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur; that is, it is more likely than not that the effect will recur.  (In deciding whether a person has had a disability in the past, the question is whether a substantial adverse effect has in fact recurred).  Conditions which recur only sporadically or for short periods can still qualify as impairments for the purposes of the Act, in respect of the meaning of ‘long-term.”

10.	In Goodwin v The Patent Office [1999] IRLR 4, the Employment Appeal Tribunal held that section 1 of the Act requires the tribunal to examine the evidence with reference to four conditions:-

	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 in paragraph 4(1) of Schedule 1 to the Act, and does it have an adverse effect?

3.	Is the adverse effect upon the claimant’s ability substantial?

4.	Is the adverse effect upon the claimant’s ability long-term?

In order to determine whether the claimant has a disability within the meaning of the Act, it is necessary to examine the medical evidence in some detail.

The Medical Evidence

11.	The claimant’s medical history was extensively documented in the reports produced by Dr Anderson and Dr Chada together with the General Practitioner notes and the Occupational Health Service records.  This evidence was supplemented by the testimony of the two doctors and the evidence of the claimant. 

12.	The parties agreed that the claimant suffered from an adjustment disorder.  The tribunal was referred to paragraph F43.2 of the World Health Organisation’s ICD-10 Classification of Mental and Behavioural Disorders where adjustment disorders are described as follows:-

		“States of subjective distress and emotional disturbance, usually interfering with social functioning and performance, and arising in the period of adaption to a significant life change or to the consequences of a stressful life event (including the presence or possibility of serious physical illness)”.

13.	The evidence establishes that the claimant first suffered from depression in 1999 which had manifested itself in low self-esteem, being very depressed and suffering from anxiety.  He stopped interacting with friends or family and felt that he had no purpose in life.  He was prescribed medication for depression and for unrelated stomach problems.  The claimant was off work for a lengthy period from 2000 to 2002 because he felt unable to cope.  In 2002, the claimant took an overdose of tablets.  During this period he attended regularly with his own General Practitioner and with Occupational Health Service doctors.  He also attended with a Cognitive Therapist and a Clinical Physiologist.  According to the claimant, the root cause of his depression was his failure to be appointed to high prestige jobs that he had applied for. 

14.	 In January 2003 a co-worker accused the claimant of bullying and aggressive behaviour and using bad language.  Although these allegations were determined to be unfounded following an investigation, the claimant lost confidence and as a result he was off work on sick leave from 21 January 2003 to 1 October 2003 due to stress/anxiety.  The claimant also took a further overdose in 2003.  According to the medical notes, this was the last occasion on which the claimant took sick leave for a stress related illness.  The claimant then returned to work at the Andersonstown Leisure Centre on reduced hours.  Thereafter the claimant suffered from stomach pains and had difficulty in sleeping.  The claimant tried in his words “to get back to normality” and agreed to referee a boxing match at the Odyssey Pavilion.  In 2004 the claimant found difficulty in concentrating in work and worked on reduced hours at a Dry Centre at Beechmount where he was responsible for the Main Hall and the Squash Courts.  He subsequently moved back to the Andersonstown Leisure Centre.  On 11 February 2005, Dr David Hamilton, Occupational Health Physician, saw the claimant at the Occupational Health Clinic and commented on the claimant’s ongoing mental health problems.  As appears from Dr Hamilton’s letter of the same date, he recommended accommodating the claimant’s request to reduce his weekly hours on a temporary basis.  Dr Hamilton also commented that the claimant’s condition could be regarded as a disability under the definition of the Disability Discrimination Act. 

15.	 On 24 March 2005 the incident occurred at the Andersonstown Leisure Centre which resulted in the claimant being made the subject of disciplinary proceedings. After the disciplinary hearing on 23 March 2006 the claimant suffered from a very low self-esteem and found it difficult to cope.  He was moved to a Dry Centre at Beechmount.  He found difficulty in interacting with his wife and children.  He had no social life and was very depressed and anxious.  Prior to the onset of depression he had been very busy in the workplace and his social life revolved around boxing.  Subsequently the claimant changed departments and moved to Environmental and Community Safety Department and felt better as a result of this move.  In answer to Mr Ferrity the claimant denied that he had felt much better in 2005/2006 than in previous years.  The medical records show that the claimant had only taken five days off work since 2004 and had only taken one day off work around the time of the disciplinary penalty being imposed in April 2006.

16.	On 17 May 2006, Karen Mooney, the Human Resources/Administration Manager, wrote to the Occupational Health Service seeking advice in relation to the need to redeploy the claimant on the closure of Beechmount Leisure Centre which was due to take place on 30 September 2006.  Ms Mooney advised that the claimant believed that his medication rendered him unfit for pool side duty and that adjustments had already been made to the claimant’s hours of work to enable him to recover in the morning from any effect of medication.  The query posed by Ms Mooney to the Occupational Health Physician was in the following terms:

“I should be grateful for your opinion on this matter and if, as David states, he cannot fulfil the full range of duties of the post can you identify what work he would be fit for or alternatively if the adjustment (sic) is required on a temporary basis only.  You should be aware that David also attends the Employee Counsellor.”

17.	The claimant was seen by Dr Black, Consultant in Occupational Health Medicine, on 25 May 2006 who advised that the claimant’s reluctance to do pool side duties was mainly due to the increased responsibility rather than his medication.  Dr Black reported that the claimant continued to have significant mental health problems and that it would be helpful if he could be facilitated by being found ‘dry’ duties elsewhere.  Dr Black went on to advise that from a purely medical perspective it would not be prudent for him to do poolside duties at present.  Ms Mooney sought clarification as to how long the claimant should refrain from pool side duties given that the claimant was to remain at the Beechmount Centre until it closed on 30 September 2006.  By letter dated 4 July 2006, Dr Black advised that the intervening period should be sufficient to enable the claimant to come to terms with the prospect of being redeployed on pool side duties.  Dr Black also suggested that the claimant should be referred back to him some time before his redeployment.  This does not appear to have occurred.

18.	Dr Anderson provided a medical report and gave evidence to the tribunal in relation to the claimant’s alleged disability.  Dr Anderson gave evidence that the claimant suffered from an adjustment disorder which dated back to the allegations made against him by a co-worker in January 2003.  According to Dr Anderson there are three phases to adjustment disorders.  The first phase is most intense and lasts for one year.  Resolution is not complete until the end of the second year (the second phase).  In the third phase the condition still affects the patient’s social and family life and he suffers from residual symptoms.  Dr Anderson also accepted the ICD-10 sub categorisation that in most cases symptoms begin within one month of an incident and resolve with one year. In Dr Anderson’s opinion the bulk of the claimant’s symptoms appeared to resolve after 18 months but he maintained that he still suffered from substantial symptoms beyond this resolution which took approximately two years to resolve.  Dr Anderson diagnosed this as a prolonged depressive reaction.  Dr Anderson believed that the cause of this condition was significant life changes and in particular the claimant’s hopes of promotion being dashed.  Dr Anderson accepted however that the Adjustment Disorder dipped below the clinical threshold in early 2005 and that there were no clinically significant symptoms after early 2005.  In answer to Mr Ferrity, Dr Anderson agreed that the claimant had suffered from a mild to moderate case of adjustment disorder and Dr Anderson accepted that the claimant had made a significant improvement by mid 2004 (the 18 month stage).  Dr Anderson further agreed that the claimant felt better in 2005 and although he still suffered from symptoms of a substantial nature these were not severe or substantial enough to qualify as clinical.  The claimant took much less time off work during the latter period but Dr Anderson believed that this was due to the claimant’s strong work ethnic.  By 2006 the claimant gained relief due to re-allocation of work and he had no illness by 2005/2006.  Dr Anderson considered the claimant to be fully recovered now with no evidence of mental illness at present.  

19.	Dr Anderson formed the impression that the claimant was unable to engage in his usual activities or social life due to his condition.  However, there was only one reference in the medical notes to concentration difficulties and this was in March 2003.  Dr Anderson considered that the claimant’s condition also impacted on his desire to be mobile and his ability to remember.  In addition, the claimant could barely leave the house.  Dr Anderson also stated that the claimant could not perform activities such as helping out at home. Dr Anderson considered that the guidance contained at C7 was relevant as loss of energy would lead to fatigue and would be damaging to the social network and family life.  In Dr Anderson’s opinion this occurred over the two year period from the onset of the condition.  Dr Anderson also drew attention to the guidance at C20 which referred to the inability to adapt and to carry out domestic tasks.  According to Dr Anderson, the claimant was still having difficulty in engaging in routine at the tail end of the illness. Dr Anderson considered that there was still substantial impairment of his social functions. The claimant was also adapting to his new work and domestic routine.   

20.	Dr Chada provided a medical report and was called to give evidence on behalf of the respondent.  Dr Chada considered that the claimant’s adjustment disorder fitted into the milder end of mental illness.  Dr Chada placed reliance on the guidance contained in ICD-10 where it is recognised that the condition usually onset within one month with significant symptoms which resolve within six months.  Dr Chada drew attention to paragraph F43.21 and in particular the reference to a depressive state whose duration would not exceed two years with no clinically diagnosed illness after that time.  Dr Chada noted that the claimant was back at work within nine months of the 2003 incident and this suggested a significant improvement to her.  From January 2003 to October 2003 the claimant was prescribed mild anti-depressants together with anxiety medication and sleeping tablets.  Dr Chada expressed surprise that the claimant was prescribed only half the usual dose of Cipramil and indicated that that should have been increased to the full amount if the claimant was not responding to the medication or alternatively the medication could have been changed.  Dr Chada agreed with Dr Anderson that the claimant was not suffering from a clinical aliment beyond early 2005 and that he dipped below the threshold.  Dr Chada noted that the claimant’s sick record improved considerably after October 2004 although he was hospitalised in June 2005 due to Irritable Bowel Syndrome.  As pointed out by Dr Chada, there was very little mention in the medical notes of anxiety or sleeplessness.  Nor was there anything in the OHS notes in relation to memory problems or difficulties in concentrating.  The notes did not contain anything which referred to a loss of interest in home and the most detailed entry in January 2005 made no mention of any impact on the claimant’s day-to-day life.  Between April 2003 and September 2003 there is no mention of physiological symptoms and no attendance with the claimant’s General Practitioner.  According to Dr Chada, adjustment disorders do not ordinarily exceed six months and Dr Chada further noted that the claimant was not on anti-depressant medication at the relevant time.  Despite the fact that Dr Tolan described the claimant as “morbidly anxious chronically” no action or response was taken by the General Practitioner to combat this.  Moreover the fact that the claimant was feeling suicidal but did not attend an appointment with his General Practitioner suggested to Dr Chada that there were not serious concerns about the claimant.  Had these symptoms manifested themselves Dr Chada would have changed or increased the claimant’s medication or combined medication with therapy.  Dr Chada also pointed out that Dr Bell, a Consultant Psychiatrist recommended no change in treatment.  Dr Chada noted that the claimant’s symptoms were not sufficiently serious to require attendance as a psychiatric outpatient.  Within nine months the claimant’s condition had improved to an extent that he was keen to go back to work albeit with a change in shift pattern.  Dr Chada did not consider that the ICD-10 guidance had been fulfilled as the claimant did not have significant difficulty with concentration, memory or understanding.

	It is then necessary to consider the expert medical evidence in the context of the four conditions.

 21.	Does the claimant have an impairment which is either mental of physical?

	The disability claim was put forward on the basis that the claimant suffered from an adjustment disorder and Dr Anderson and Dr Chada agreed that the claimant suffered from this condition but had differing views as to its severity, duration and impact.  There was no dispute that this condition is a clinically well recognised mental impairment and is a form of depression which involves prolonged depressive episodes and as indicated above it is recognised as such in the World Health Organisation’s ICD-10 Classification of Mental and Behavioural Disorders.

 22.	Having had the benefit of the expert evidence of Dr Anderson and Dr Chada on this topic the tribunal is satisfied that the claimant suffered from a mental impairment of this nature.

23.	There was considerable dispute between the parties as to the severity, duration and impact of the claimant’s condition.  On behalf of the claimant Ms MacManus contended that the claimant’s mental health problems dated back to his nervous breakdown in 2000 and drew attention to the claimant’s attendances with his General Practitioner with symptoms of anxiety and distress.  Ms MacManus contended that the claimant’s condition lasted for at least twelve months and she sought to rely on the General Practitioner notes and Occupational Health Service records.  Ms MacManus argued that it did not matter that the claimant’s condition changed over time and that it was a recurring condition as in the case of Swift v Chief Constable of Wiltshire Constabulary [2004] IRLR, 540 EAT.  Ms MacManus also drew attention to Dr Chada’s statement that “Mr Irving has had longstanding physiological problems, probably stemming from history of childhood sexual abuse” and reminded the tribunal that it was not required to adjudicate on the cause of the claimant’s disability as this was not an issue for the tribunal at this stage.

24.	Mr Ferrity submitted that the tribunal should only be concerned with the period during which the claimant allegedly suffered a detriment.  On the basis of this approach he urged the tribunal to focus on the date of the final written warning and compulsory transfer imposed on the claimant 7 April 2006. Mr Ferrity placed reliance on Dr Anderson’s evidence that the claimant’s adjustment disorder lasted for two years from the date of an incident at work on or around February/March 2003.  Mr Ferrity also drew attention to Dr Anderson’s evidence that the claimant was not suffering from any clinically recognised mental disorder and exhibited no clinically significant symptoms after the early part of 2005.  In addition Mr Ferrity relied on Dr Chada’s more conservative estimate that the claimant’s symptoms would not have lasted for two years after the 2003 incident.  On this basis Mr Ferrity contended that the claimant was not suffering from any disability at the relevant time notwithstanding Dr Anderson’s attempt to suggest that the claimant still suffered some symptoms up to the present day.	 

25.	The tribunal invited further submissions in relation to the contention based on the Swift case that the claimant’s condition was a recurring condition.  On behalf of the respondent it was submitted that there was no evidence that the condition suffered by the claimant or any substantial adverse effect was likely to recur.  Attention was again drawn to Dr Anderson’s evidence that the adverse effect lasted 18 months and to the absence of any reference in the General Practitioner notes and records of any reference to the likelihood of the condition recurring or of the condition having in fact recurred.  On this basis it was contended that the Swift case was of no relevance.  Ms MacManus did not add to her previous submissions on this aspect of the case.  

26.	There was no dispute that the claimant did in fact suffer from an adjustment disorder and the key issue in dispute between the parties was whether or not he suffered from such impairment at the date of the alleged discriminatory act.  In accordance with Cruickshank -v- VAW Motorcast Ltd [2002] IRLR 24 EAT a disability will qualify as having a long-term effect if at that date it has lasted at least 12 months or is likely to last at least 12 months or for the rest of the worker’s life.  The claimant accepted that the detriment of which he complained occurred on 7 April 2006 when he was found guilty at the disciplinary procedure and given a final written warning and transfer.  In order to bring his claim within the Act, it is therefore necessary for the claimant to demonstrate that it had lasted at least 12 months at the date on which the detriment was sustained.  On the basis that the detriment sustained by the claimant occurred on 7 April 2006 it is necessary to look back to 7 April 2005.  Dr Anderson considered that the adverse effect commenced in February 2003 and lasted for 18 months and that there were no clinically significant symptoms after early 2005.  In relation to the suggestion that the claimant’s condition is one that should be treated as continuing to have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities on the basis that that effect is likely to recur, I accept the respondent’s submission that there is no evidential basis for the suggestion that the claimant’s condition either recurred or was likely to recur.  Any doubt as to the proper approach to this issue by tribunals has been resolved by the recent Court of Appeal judgment in Richmond Adult Community College v McDougall, Neutral Citation Number: [2008] EWCA Civ 4.  In that case, the Court of Appeal held that the question of whether an impairment was “likely to recur” had to be answered exclusively by reference to evidence relating to the likelihood of such recurrence at the relevant time and that recourse to subsequent events was not permitted.  It is clear that the claimant’s condition had substantially resolved by early 2005 and there was simply no evidence that it either recurred or was likely to recur.

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

	The parties were also in dispute as to whether the claimant’s adjustment disorder had an adverse effect on his ability to carry out normal day-to-day activities.  Ms MacManus submitted that the condition had significant impact on the claimant’s physical co-ordination, memory and ability to concentrate, learn or understand and on his ability to carry out normal day-to-day tasks in employment.  Ms MacManus drew attention to the claimant’s attempts to manage a condition with medication, his absences from work, frequent counselling, cognitive therapy and medication. 

28.	Mr Ferrity focused on the medical evidence and pointed out that there was no mention of the difficulties with energy in the medical notes and records, only one mention of concentration difficulties in 2003 and libido problems in 2004.  On this basis Mr Ferrity suggested that the only matter of relevance was the reference to memory difficulties.  Mr Ferrity drew attention to Section C of the Guidance Notes and submitted that even with the benefit of Section C7 the claimant’s symptoms did not fall within the guidance as to what constituted having an effect on normal day-to-day activities.  While the historical medical evidence is testament to the claimant’s mental health difficulties, the evidence as to the impact of the claimant’s adjustment disorder on his ability to carry out normal day-to-day activities during the relevant period is slender.  I am not therefore persuaded that the claimant has established that his condition had an adverse effect on his ability to carry out normal day-to-day activities.

29.	Is the adverse effect upon the claimant’s ability substantial?

	Even if I had been persuaded that the claimant’s condition had an adverse effect on his ability to carry out normal day-to-day activities, the claimant would only qualify under the Act if it the adverse effect was substantial.  As pointed out by the Employment Appeal Tribunal in Goodwin -v- The Patent Office, substantial means more than minor or trivial rather than very large.  Ms MacManus submitted that the claimant’s condition was substantial and adverse.  In relation to Section C20 of the Guidance, the only portion of potential relevance is the inability to concentrate on a task requiring application over several hours.  The medical evidence of the effect on the claimant’s powers of concentration was restricted to a single mention in the medical notes and this could not conceivably be regarded as substantial.  Furthermore, the claimant’s evidence on this aspect of his case was unconvincing.

30.	Is the adverse effect upon the claimant’s ability long-term?

As to whether the adverse effect of the claimant’s mental impairment was long-term, this issue is inextricably interlinked with my determination as to the severity, duration and impact of the claimant’s condition.  While the claimant’s adjustment disorder comfortably exceeded twelve months in duration, it had largely resolved by 6 April 2005 some twelve months before the imposition of disciplinary penalty on 6 April 2006 upon which the claimant’s complaint is founded.  Accordingly, the claimant’s impairment was not a subsisting condition at the material time and as indicated above there is no evidence that it qualified as a recurring condition either.

31.	Conclusions

While I have no doubt that the claimant suffered from mental health problems dating from 2000 and that he may not, even now, be entirely free from mental health problems, the expert medical evidence focussed on the adjustment disorder identified by Dr Anderson.  The onus is on the claimant to establish on the balance of probabilities that he has a relevant disability and the evidence adduced on his behalf was aimed at establishing that he suffered from this condition at the relevant time, namely 6 April 2006.  

32.	There was no dispute that the claimant did in fact suffer from an adjustment disorder and the key issue in dispute between the parties was whether or not he suffered from such impairment at the date of the alleged discriminatory act.  It is clear that the claimant’s condition had substantially resolved at least twelve months before the alleged discriminatory act and was therefore not capable of qualifying on this basis.  No evidence was adduced that it was a recurring condition.  Accordingly I am satisfied that the claimant was not suffering from a relevant disability at the date of the alleged discriminatory act.

33.	As the claimant’s claim is confined to disability discrimination and I have found that he did not suffer from a disability at the material time it follows that his claim must be dismissed.

Chairman:

Date and place of hearing:	24 October 2007 & 20 November 2007, Belfast.

Date decision recorded in register and issued to parties: