THE INDUSTRIAL TRIBUNALS 

CASE REF:	86/05

CLAIMANT:			David John Glover

RESPONDENTS:	1.	NIE Power Team Limited
2.	Terry McCleave
3.	Con Feeny
4.	Gillian McAuley

DECISION ON A PRE-HEARING REVIEW
The decision of the Tribunal is that the claimant was not disabled within the meaning of the Disability Discrimination Act 1995 during the relevant period.  The disability discrimination claim is therefore dismissed. 

Constitution of Tribunal:
Chairman:	Mr N Kelly (sitting alone)

Appearances:
The claimant was represented by Mr P Rodgers, Barrister-at-Law, instructed by Judith Blair Employment Law Solicitors
The respondents were represented by Mr Conor Hamill, Barrister-at-Law, instructed by the Legal Department of Viridian PLC.

THE ISSUE
1.	This is a Pre-hearing Review conducted by a Chairman, sitting alone, under Rule 18(2) (a) of Schedule 1 to the Industrial Tribunal Constitution Rules of Procedure Regulations (Northern Ireland) 2005.

2.	The issue listed for determination was “whether the claimant had a disability within the meaning of the Disability Discrimination Act 1995 at the relevant time”.

3.	The question of whether the claimant was 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 Limited 2002 IRLR 24.  

4.	In so far as it is possible to judge from the pleadings in this case, the claim relates to the period between an unspecified date in April 2004 and the claimant’s dismissal on 30 September 2004.  That therefore is the relevant period for the purposes of this Pre-hearing Review.  

5.	The claimant in a reply dated 26 April 2007 to a Notice for Further and Better Particulars specified the nature of the alleged disability as “Osteoarthritis; ankles”.  The claimant alleged that he had other physical disabilities including a bad back and an unrelated and painful foot condition.  The Court of Appeal (GB) in McNicol v Balfour Beatty Rail Maintenance Limited [2002] IRLR 711 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”.  While the claimant throughout his oral evidence referred repeatedly to these other conditions, he did accept that his claim was based solely on osteoarthritis in both ankles.  No application has been made to amend the claim to include other medical conditions and I am therefore considering the issue solely in relation to the medical condition specified at a very late stage in the litigation on 26 April 2007.

FACTS NOT IN CONTENTION

6.	The claimant was employed as a linesman by the first named respondent from June 1998 until his dismissal on 30 September 2004.  

7.	His duties were replacing and refurbishing overhead electric cables and ancillary equipment.  As part of his duties, he had to climb wooden electricity poles.  When climbing those poles he would use special footwear fitted with spikes which he had to drive into the wooden poles to secure a grip while climbing.  He was also separately secured to the pole with a harness or other device.

8.	He worked for the first named respondent in Northern Ireland, the Republic of Ireland and in Wales.  In the early part of 2004, he was working in Wales.  His spikes were stolen.  On his return to Northern Ireland in April 2004 he was issued by the first named respondent with a used set of spikes.  He continued carrying out the full range of duties as a linesman, including climbing wooden poles until early June 2004 when he was excused climbing duties.  

9.	The respondents accepted that the claimant had a degree of osteoarthritis in both 
           ankles.  

CLAIMANT’S EVIDENCE

10.	The claimant alleged that the used spikes which had been issued to him in April 2004 were blunt and that as a result he suffered serious difficulty in continuing to climb wooden poles.  He alleged that he suffered pain in both ankles when trying to drive the blunt spikes into the wooden poles.  He also alleged that to avoid this pain he used old holes which had been driven into the poles by previous linesmen and that this provided significantly less grip causing him to fall on several occasions.  

11.	The claimant further stated that he had had minor pains in both ankles before April 2004 but as a result of the use of blunt spikes, his ankles became very painful.  He was unsteady on both feet.  He fell over repeatedly, usually onto his right side.  Walking a long distance was “too much”.  He explained that this referred to a distance of about a mile.  Walking upstairs was uncomfortable and he had to pull on the banisters each time he did so.  He had difficulty negotiating gradients or uneven surfaces.

12.	In relation to driving, the claimant stated that pushing the clutch with his left foot was “basically impossible”.  He would have to pull over and stop the vehicle so that he could remove his footwear and rub his ankles to restore circulation.  He would have to do this after driving for approximately 1 hour.

13.	He stated that he had to put his ankles in a bucket of cold water at night.  He used ankle straps during the day which he had bought in a sports goods shop.  He used anti-inflammatory cream and also took 2-3 painkillers at night.

14.	The claimant stated he has had an ongoing problem with sleeping since April 2004.  From that time, he states he wakes up several times during the night with pain in his ankles.  This leaves him exhausted but he “tries to get on with it”.  

15.	The claimant went to his GP on 2 June 2004.  He was told that he had osteoarthritis in both ankles.  The claimant told his manager, Mr McCleave.  The claimant was referred to the respondents’ occupational health specialist and taken off climbing duties.  

16.	Between June 2004 and his dismissal at the end of September 2004, the claimant stated that his condition fluctuated.  Some days he thought he didn’t have a problem and on one such occasion he asked the occupational health specialist Dr Black, for permission to resume climbing duties.  This permission was refused. 

17.	The claimant alleged that he was prescribed Kapak, Arcoxia and subsequently Declofenic and most recently Tramadol and Anatripoline.  He stated that these drugs just took away or reduced the pain temporarily.  He received physiotherapy in relation to his ankles on 2 occasions.  

18.	The symptoms described above persisted until the claimant’s dismissal, and he
           states, have got worse up to the present day.

RELEVANT LAW

19.	Section 1(1) of the Disability Discrimination Act 1995 provides:

	“Subject to the provisions of Schedules 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 day-to-day activities”.   

20.	Paragraph 4(1) of the 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.  The relevant activities for the purposes of the present case are mobility and physical co-ordination.  

21.	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 purpose of the 1995 Act.  In Ross v Precision Industrial Services Limited and Du Pont NICA 2005, 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 appellant”.  

22.	The 1995 Act provides at paragraph 6 of Schedule 1 that 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 (including in particular medical treatment and the use of other aids) are being taken to treat or correct it, is to be treated as having that effect.

23.	In Kapadia v LBC of Lambeth [2000] IRLR 699, it was said that “it was not enough for a claimant to maintain that he or she would be badly affected if treatment were to stop – proof, preferably of an expert medical nature is necessary”.

24.	In Goodwin v Patent Office [1999] IRLR 4 the EAT directed tribunals to answer 4 questions in determining whether an individual is disabled for the purposes of the 1995 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

25.	It is not in dispute that the claimant has a physical impairment i.e. osteoarthritis in both ankles.  

26.	I have concluded that the claimant has grossly exaggerated the extent to which this physical impairment affects his ability to carry out normal day-to-day activities.  I have based that conclusion on the following points.

(i)	In paragraph 13 of his claim, he refers to an accident at work in which he hurt his shoulder “in the last week of September” (2004). When asked, in a Notice for Further and Better Particulars, for further details, the response was “not relevant to the claimant’s above numbered claim”.

The relevant hospital report dated 20 September 2004 refers to an incident on 19 September 2004 and records that the patient was doing martial arts – did over the shoulder throw – landed R shoulder – c/o pain”.  There is no other reference in the agreed bundle of medical reports and GP records to an accident, to the shoulder or to any other part of his anatomy, at the end of September 2004.  

The claimant alleged under cross-examination that he had at the time also (separately) fallen down some stairs and injured his shoulder but the hospital had for some reason failed to record this fact.  He had also alleged that he had simply forgotten that he used to take part in a martial art i.e. jiu jitsu until reminded of this by Counsel for the respondents.  

The claimant’s evidence on this point defies belief.  If it were correct, it would require a separate and unrelated accident about the same time which also impacted on his shoulder and which was not recorded by either the hospital or his GP.  It would also, on the claimant’s evidence, require me to accept that taking part in martial arts, and being injured, was the sort of thing the claimant could have forgotten or could have some way confused with an accident at work.

(ii)	After his dismissal on 30 September 2004, the claimant immediately or almost immediately took up employment in the Republic of Ireland as a linesman and worked there until April 2005.  He claimed before the tribunal that he worked as a charge hand doing very little climbing.  However he accepted that the job involved some climbing and indeed involved walking across muddy fields and uneven ground.  He had also accepted that he was dismissed from this job for a health and safety violation i.e. working on potentially live overhead cables without properly insulated gloves.  There is therefore no suggestion that he left this job on health grounds.  It is simply not credible that someone suffering the degree of disability alleged by the claimant would have undertaken such employment or would have retained it for a period of at least 6 months.

(iii)	The claimant then took up employment with a playground construction company doing outdoors manual labour throughout the summer of 2005 before taking up his current post with Finlay Communications installing Sky dishes.  That job involves travelling to private houses in a van, climbing ladders, carrying and securing Sky dishes while on ladders, feeding cables across roofs and along eaves and securing those cables where appropriate.  Again it is simply not credible that an individual suffering the degree of disability alleged by the claimant would either take up or be able to return such employment.

(iv)	The claimant regularly plays golf and is a member of a golf club.  Although he claimed in evidence that he sometimes cannot manage 18 holes, he played for his club last season in the Ulster Cup.  There are approximately 200 members in his golf club and only 8 of those members were on the team in that competition.  Again it is simply not credible that a person who alleges that he suffers pain and discomfort on walking or negotiating gradients and uneven surfaces would regularly play golf at this or any level.  

(v)	The claimant is currently training to become a driving instructor.  This proposed change in career would involve driving between lessons and while giving lessons would involve the potential use of dual controls.  Given the claimant’s alleged degree of difficulty in relation to driving i.e. that operating a clutch with his left foot is “practically impossible”; this evidence again is not credible.

(vi)	The claimant maintained in evidence that he has used painkillers and anti-inflammatory products regularly from April 2004 to the present day.  While he tried intermittently to reduce the use of these products or indeed to stop the use of these products, these attempts did not last very long.  The prescription record does not support this version of events.  According to that record, he was prescribed 28 days of Diclofenic on 21 May 2004 and 12 days of Co-codamol on 17 June 2004.  There were some other prescriptions for his injured shoulder, an unrelated foot condition and a neck sprain.  However the documentary evidence does not support the claimant’s alleged regular use of these products.  When this was put to him in cross-examination he alleged for the first time that he had regularly used his wife’s painkillers.

(vii)	The respondent asked in the Notice for Further and Better Particulars dated 10 February 2005 for further particulars of the claimant’s allegation that he had fallen off poles when using blunt spikes and that he had suffered injuries.  The response on 29 May 2007 was that he had fallen approximately 3-5 times and had suffered minor injuries, abrasions and small splinters.  In his evidence to the tribunal, the claimant alleged that on these occasions he had slid down the pole rather than fallen and that he had suffered no actual injuries.  

(viii)	The claimant was sure in his evidence that he had told Mr Cowie and indeed his GP of all the matters relevant to his claim and in particular that he had told Mr Cowie of his sleep disturbance and his participation in jiu jitsu.  Mr Cowie gave evidence that he would have asked the claimant for details of all his symptoms and would have noted them down.  There is no reference to sleep disturbance in his report and Mr Cowie could not remember it being raised by the claimant.  I therefore conclude that it was not raised by the claimant during the course of Mr Cowie’s medical examination as alleged.  There is no reference in the GP’s notes to sleep disturbance until fairly recently and certainly no reference at the relevant time.

(ix)	There is no mention in the GP’s notes of the claimant complaining of a difficulty with his ankles between June 2004 and February 2006.

27.	The claimant was examined by a Consultant Orthopaedic Surgeon, Mr Cowie in June 2007.  Mr Cowie examined the patient and also examined the x-rays taken in 2001, 2003 and 2004.  He confirmed that those x-rays did show osteoarthritic changes in both ankles.  Mr Cowie accepted that osteoarthritis is what could be described as a “spectrum condition”. With similar degrees of osteoarthritic change in a joint, one person could feel very little or no pain and another person could feel a substantial degree of pain.  The presence of osteoarthritic change in the joint does not necessarily mean pain or more than a little pain and he as an examining doctor was relying on what the claimant told him to ascertain the degree of pain.  That said, the x-rays showed changes in the joint which were at least consistent with what the claimant alleged in relation to pain and discomfort.  The physical examination disclosed a slight loss of motion in the ankle joints but he had recorded no note of any pain on movement of either joint.  That did not necessarily mean there would not have been pain if the movements had been made in a load bearing situation.  

DECISION

28.	The first question posed in Goodwin has already been conceded and is therefore answered in the affirmative. The claimant suffers from a physical impairment; osteoarthritis in both ankles.

29.	The second question has to be considered next i.e. whether or not the physical impairment affected the claimant’s ability to carryout normal day-to-day activities in respect of mobility or physical co-ordination and if so does it have an adverse affect. 

30.	As I have indicated above, I have concluded that the claimant’s evidence is not credible.  He has, in my view, grossly exaggerated the effects of this physical impairment on his ability to carry out day-to-day activities.  That, of course does not mean that I can totally disregard his evidence but I should be careful in assessing its worth and should bear in mind that the onus of proof is placed firmly upon the claimant in these matters and that he has to prove on the balance of probabilities that he was disabled with the meaning of the 1995 Act during the relevant period.

31.	Mr Cowie stated, and I accept his evidence, that the changes evidenced on the x-rays were consistent with the degree of pain and discomfort alleged by the claimant in relation to walking, driving etc.  However Mr Cowie was equally clear that patients with the same degree of osteoarthritic change could suffer no pain or a great deal of paint.  It very much depended on the individual and as a doctor he was dependent on the patient to tell him the degree of pain experienced.  The mere fact that the changes were consistent with the degree of pain and discomfort claimed by the claimant is important evidence but it is equally clear that it is not on its own conclusive.  

32.	I refer to paragraph 26 above to matters within the claimant’s evidence which have caused me to conclude that his evidence is not credible.  I note in particular that there is no consistent record of the claimant complaining of pain in his ankles to his GP or to the hospital and no consistent record of pain killing medication being prescribed.  If the claimant had been suffering the degree of pain and suffering claimed by him, I would have expected to see a substantial number of visits to his GP and an equally substantial number of relevant prescriptions.  There were none between June 2004 and February 2006.  Furthermore the claimant’s work record, although commendable, cannot be regarded as consistent with his claims of disability.  It simply strains credulity beyond any reasonable breaking point to suggest than an individual who had difficulty walking, driving, negotiating gradients, climbing stairs, who regularly fell over and who was unsteady on his feet, could have worked both during and after the relevant period as a linesman and continued to work to the present day installing satellite dishes which involved work on ladders and roofs.  Finally I note the claimant’s participation in martial arts (which apparently slipped his mind) and his participation in golf.  Such a person would have to possess a superhuman degree of fortitude.  His evidence becomes even less credible when one considers the other medical conditions which he alleges he was suffering i.e. a bad back and a painful foot condition.  

33.	Despite the doubts about the claimant’s own evidence, on the basis of Mr Cowie’s evidence in relation to the x-rays on the balance of probabilities I conclude that the physical impairment would have adversely affected the claimant’s ability in relation to mobility.  I have heard no credible evidence in relation to physical co-ordination.  

34.	The next question is whether or not the adverse effect was substantial.  The Guidance provides that an adverse effect is substantial if it is more than minor or trivial.  I conclude that the claimant has not discharged the burden of proof placed upon him in this respect.  In particular, participation in martial arts at the end of September 2004 i.e. in the relevant period is entirely inconsistent with the claimant’s version of events.  Furthermore moving immediately after dismissal in September 2004 to similar work in the Republic of Ireland is entirely inconsistent with his version of events.  I therefore conclude that while he has established in the balance of probabilities that he suffered an adverse effect in relation to mobility during the relevant period, the claimant has failed to establish on the balance of probabilities that that adverse effect was substantial.

           Despite a great deal of learned argument on a complex area of law, the preliminary issue falls to be determined on a very simple point. The claimant had to prove that his osteoarthritis had a substantial (and long term) adverse effect on mobility. The medical evidence adduced established on the balance of probabilities that this physical impairment would have had an adverse effect on mobility. It did not establish that such an adverse effect was substantial. That claim rested on the claimant’s own evidence. That evidence was unreliable for the reasons set out above. He has failed to discharge the burden of proof. 

35.	I do not have to consider whether the adverse effect was long term and the
     disability discrimination claim is therefore dismissed.

Chairman:	

Date and place of hearing: 30 November 2007, Belfast	

Date decision recorded in register and issued to parties: