THE INDUSTRIAL TRIBUNALS

CASE REF:	841/12

CLAIMANT:			Eric Edward Coates

RESPONDENTS:		1.	Matt Baggot – Chief Constable, PSNI 
				2.	Simon Ball – Chief Inspector, PSNI

DECISION ON A PRE-HEARING REVIEW 
The unanimous decision of the tribunal is that the claim of unfair dismissal is treated as withdrawn in open tribunal and dismissed.  Taking into account of the guidance of Court of Appeal in relation to pre-hearing reviews, the decision in Cunningham  v  Ballylaw Foods Ltd and the overriding objective, the issue in relation to disability, particularly in relation to specific dates in the relevant period is, on the evidence before the tribunal, not capable of satisfactory resolution at this stage.  The issue of disability therefore remains open and is to be determined at the substantive hearing of the disability discrimination claim.  

Constitution of Tribunal:
Vice President (sitting alone):		Mr N Kelly

Appearances:
The claimant appeared in person and was not represented.
The respondents were represented by Ms R Best, Barrister-at-Law, instructed by Crown Solicitor’s Office.

Background

1.	The claimant was, at all relevant times, a police officer.  He alleged that he had been unfairly dismissed from his employment as a police officer and also argued that he had been discriminated against on grounds of disability by both the Chief Constable of the PSNI and by the named Chief Inspector.  

2.	The matter had been set down for a pre-hearing review (‘PHR') to determine the following issues:-

(1)	Whether the industrial tribunal has jurisdiction to consider a complaint of unfair dismissal from the claimant in light of Article 253 of the Employment Rights (Northern Ireland) Order 1996 (as amended) which provides that unfair dismissal provisions do not apply to police officers?

(2)	Whether the claimant suffered from a disability as defined under the Disability Discrimination Act 1995 (‘the 1995 Act’) entitling him to bring a claim of disability discrimination before the Office of the Industrial Tribunals and Fair Employment Tribunal?

3.	The PHR was first held before a different Chairman, Ms Shiels, until a conflict of interest was determined and that hearing had come to a premature close.  The hearing was almost immediately reconvened before me.  During the initial hearing before Ms Shiels, the claimant discussed the law relating to unfair dismissal and following that discussion, he withdrew his claim of unfair dismissal.  At the reconvened PHR before me, that position was confirmed.  The unfair dismissal claim was therefore treated as withdrawn in open tribunal and dismissed.  The sole issue remaining for determination at the PHR was the second issue.  

Relevant time

4.	The issue of disability for the purposes of the 1995 Act must be determined by reference to the date of the alleged acts of discrimination.  In Cruickshank  v  VAW Motorcast Ltd [2002] IRLR 24, the EAT confirmed that in determining whether a person is disabled for the purposes of the Act, the tribunal should only apply the appropriate test to the claimant’s condition at the date or dates of the alleged discriminatory acts, and not at the date of hearing or at any other date.  

5.	The claimant complained, first, about the conduct of Chief Inspector Ball in relation to two interviews and then went on to complain about the manner of his dismissal.  He complains that the notes of the interviews conducted by Chief Inspector Ball influenced the dismissal and that dismissal was subsequently upheld by the Chief Constable on review.  The dates of the interviews conducted by Chief Inspector Ball were 11 October 2010 and 13 October 2010.  On 14 February 2012, the claimant was required, following disciplinary processes which, on their face, related to different matters, and that dismissal was upheld on review by the Chief Constable on 14 April 2012.  The ultimate determination of the relevant time is therefore intertwined with the extent to which, as alleged, the interview notes of 2010 continued, or did not continue, to influence subsequent proceedings in 2012.

6.	The claimant alleged, in his claim form, the dismissal was ongoing but brought no complaint in respect of any further matter or any further time period.  Furthermore, he seemed to accept in evidence that he was no longer disabled at the current time.

7.	Insofar as it can be identified at this PHR, the relevant time, in relation to the second preliminary issue, at its widest would appear to be 11 October 2010 to 16 April 2012.  However, without hearing evidence in relation to the substantive issue of alleged disability discrimination, it is impossible at this current stage to be more precise than that.  In particular, the claimant’s allegation that the interviews in October 2010 had a lasting effect on the dismissal processes, several months later, is untested.

Relevant law

8.	Section 1 of the Disability Discrimination Act 1995 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 affect on his ability to carry out day-to-day activities.”

Paragraph 4(1) of Schedule 1 to the Act provides that an impairment is only to be taken as affecting the ability of the person to carry out normal day-to-day activities if it affects one of certain specified activities.  For the purposes of the present case, the most relevant matter is the ability to concentrate, learn or understand.  Other issues may arise in relation to ability, manual dexterity, physical co-ordination, the ability to lift, move or carry ordinary objects and the ability to recognise physical danger.  

9.	The onus is on the claimant to prove that, in the relevant period, when the alleged acts of discrimination took place he was disabled for the purposes of the 1995 Act.  In Ross  v  Precision Industrial Services Ltd and Dupont [2005] NICA 25, Kerr LCJ stated at Paragraph 39:-

“The onus of establishing that he was substantially effected in manual dexterity and lifting ability rested squarely on the claimant.”

10.	However, the Court of Appeal in Cunningham  v  Ballylaw Foods Ltd [2007] NICA 7 stated at Paragraph 2:-

“By agreement the tribunal was required to determine a preliminary issue, namely the question ‘whether the appellant was a disabled person within the meaning of the Disability Discrimination Act 1995’.  It was suggested by Counsel that this course was in line with common practice.  Tribunals should, of course, in each individual case consider whether such a course is the most desirable one to follow.  Frequently the evidence of justification will be short or may throw up points that themselves may indicate the possibility of an appeal.  In many cases it will be quicker in the long-term, more                cost-effective and a better use of the tribunal’s time to hear all issues at the same time.”

11.	In Goodwin  v  Patent Office [1999] IRLR 4 the EAT directed tribunals to answer four questions in determining whether an individual was disabled for the purposes of the Act:-

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

(b)	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 effect?

 (c)	Is the adverse effect substantial?

 (d)	Is the adverse effect long-term?”

Findings of fact for the purposes of the PHR

12.	On 8 January 2010, the claimant was involved in a road traffic accident on his way to duty.  He attended the Accident & Emergency Department of the local hospital after the accident and on 14 January 2010 he complained to his GP of pain to his neck, right thigh, left knee, left biceps and left little finger.

13.	He was initially prescribed Naproxen (an anti-inflammatory) and Co-codamol (a pain killer).  

14.	On 5 February 2010 he was prescribed Tramadol (pain killer).

15.	On 7 April 2010 he was prescribed Pregabalin (for nerve pain).

16.	On 14 April 2010 he was referred to the Orthopaedic Department of the local hospital and on 30 April 2010 he was referred for a MRI scan.  

17.	On 4 June 2010, he was unable to work because of poor concentration.  

18.	Following a MRI scan on 1 July 2010 the claimant was referred to the Neurosurgery Department of the local hospital.  

19.	On 22 January 2010 he was prescribed a further drug, Amitryptiline which has a mild sedative quality and is linked to difficulties with sleep.  

20.	On 27 August 2010, the claimant told his GP that he was having sleeping problems.  

21.	It is to be noted that the preceding matters predate the relevant dates, thus determined, but must be looked at in relation to an ongoing condition to assist in determining, insofar as is possible, the issue of disability.

22.	On 15 October 2010, the claimant complained, in a telephone call, of his inability to concentrate.  

23.	On 1 March 2011, the claimant underwent surgery which amounted to a                  cage-fusion operation in relation to two spinal discs.  That was determined to have achieved a good result.  The locum neurosurgeon stated that:-

“He made a very good recovery after surgery and he had some improvement in his pain.”

	He went onto state:-

		“His symptoms were significantly better than pre-operatively.”

	He stated:-

“I would suspect that he will be able to go back to light duties and work in the short term and depending on his further recovery the amount of type of work to be re-considered as well.”

There is no suggestion anywhere that the claimant had a complete recovery and was pain-free after the surgery.

24.	On 30 September 2011, Dr Crowther stated:-

“This officer was reviewed today I note there are significant PSD issues ongoing.  However he has made good progress following his neck surgery and I have written to his surgeon to get the final clearance for him to resume full duties.  I will review him again when this come in and will comment on his fitness to resume uniform duty in C District at that time.  I have no concerns with regard to his access to firearms.”

25.	Dr Crowther stated on 7 December 2011 that the claimant was ‘physically fit’ for full duty.  However he stated that ‘it would be prudent to wait the outcome of this case (ongoing disciplinary proceedings) before returning him to normal duties’.

26.	The claimant’s last prescription for Tramadol was on 22 July 2011 and his last prescription for Amitryptiline was 5 August 2011.  

27.	The claimant was off work for three weeks initially after his road traffic accident and then returned to work for almost three months before going off sick on or about 22 April 2010 up to July 2011.  There followed a period of adjusted duties.  

28.	There was no dispute between the parties that the claimant had been involved in a road traffic accident as indicated and that, subsequently, he had suffered both physical injuries and some degree of mental upset.  The sole issue to be determined in relation to the second preliminary issue was whether or not that adverse impact was ‘substantial’.  The onus of proof clearly lay on the claimant to establish that he was disabled during the relevant times.  That said, the tribunal has to be cognisant of the fact that the claimant was unrepresented and that the overriding objective requires ultimately that justice should be done in relation to the claim.  This matter was listed for a pre-hearing review on two issues.  The first issue ultimately was withdrawn.  Given the nature of the case and given the statement of Court of Appeal in Cunningham (see above) it is unlikely that this matter would have been listed separately for a single pre-hearing review on the issue of disability.  

29.	In any event, the claimant did not call any witnesses.  Apart from other documentation he relied on a report from his GP, Dr Gillian Montgomery, dated 29 August 2012.  That report is supportive of the claimant’s position.  However it fails to address the precise legal issue which is currently before the tribunal.  It states that:-

“Eric had a significant physical impairment which has an adverse affect on his ability to carry out normal day-to-day activities.”

It does not, at any point, refer to a ‘substantial’ adverse affect which is, after all, the issue to be determined by this tribunal.  ‘Significant’ may or may not mean ‘substantial’.  Perhaps most importantly, the claimant did not arrange for the attendance of Dr Montgomery and did not offer her evidence up for                       cross-examination.  He appeared to be unaware of the desirability indeed, or of the necessity, of doing so in the absence of the agreement of the other party.  It seems equally clear this matter was not drawn to his attention by the other party.  The claimant does not seem to have understood the legal process.

30.	The respondent called one witness, Dr Crowther, who was the Head of the Occupational Health & Welfare Department of PSNI.  One of the core issues before the tribunal was whether the combination of drugs taken by the claimant during parts of the relevant period were sufficient, in that combination, to cause difficulty in concentration, or in memory or to have mental health side effects.  Dr Crowther spoke in generalities.  He stated that it was not apparent that these would do so or, at least that they would not do so after an initial period during which the patient would habituate to the medication.  That does not seem to accord to the GP report produced by the claimant and, in particular, it tends to contradict the further documentation provided by Dr Kathy Neoh dated 25 January 2011 which states:-

The above-named is a patient in this Practice.  He is currently on the following medication: Tramadol and Amitryptiline and Naproxen.  He has asked that I clarify if these drugs had certain side effects.  I confirm that it is listed in the British National Formulary that three drugs can potentially cause confusion and drowsiness.  These side effects can potentially result in an inability to concentrate and articulate during conversation.”

31.	The tribunal was not referred to the British National Formulary or to any further evidence on this point.  Dr Crowther, when asked specifically in cross-examination, was unable to rule out that a combination of these drugs would have had these effects in a specific case as opposed to as a matter of generality.  However, his clear evidence was that during the medical interviews which he conducted from time to time with the claimant, he was unable to detect any inability in relation to memory or concentration or indeed inability in answering questions.  That is a matter of evidence and has to be taken into account.  However, equally, the tribunal has to bear in mind that these interviews would be relatively short, prepared in advance and that the claimant will have had the opportunity to mentally rehearse the matters to be addressed including the relevant medical history.  It cannot, of itself, be an accurate guide to an individual’s general ability, in ordinary day-to-day situations to memorise, concentrate or deal with questions.  

32.	As matters progressed, particularly in relation to the relevant time, the dates of medication, the dates and reasons for the claimant being off work and the apparent conflict in medical evidence, I am not satisfied that I have the evidence before me in which I can determine this issue.  While I fully accept that the onus of proof is on the claimant in this respect, I equally have to apply the overriding objective and to consider, in particular, the words of the Court of Appeal in Cunningham.  I am not content that the second preliminary issue can be properly excised from the substantive issues for a PHR.

33.	Having turned this over in my mind for some days and having gone through the documentation in some detail, I think the most appropriate decision that I can come to is to confirm that the unfair dismissal case is dismissed and that the issue of disability will remain open and will be determined in accordance with all substantive issues relating to the disability discrimination claim at a further short substantive hearing in relation to that claim to be listed by the tribunal.

Vice President:

Date and place of hearing:	21 September 2012, Belfast

Date decision recorded in register and issued to parties: