Ms E Pasello v Whitman Laboratories Ltd: 1403530/2023

EMPLOYMENT TRIBUNALS

Case No 1403530/2023

Between

Ms E PaselloClaimant

Whitman Laboratories LimitedRespondent

Before

Employment Judge Self

In person for claimant

Date 8 May 2024

JUDGMENT

The Claimant was a disabled person on account of her sight impairment, pursuant to the Equality Act 2010, from 12 October 2022. 8 May 2024

REASONS

[1]By a Claim Form lodged on 18 May 2023 the Claimant seeks compensation for what she asserts were acts of Age and Disability Discrimination. The Claim came before EJ Street at a preliminary Hearing on 15 November 2023 and this hearing was listed in order to determine the issue of “whether or not the Claimant was a disabled person within the meaning of the Equality Act 2010. If so, from what date was she a disabled person?” This matter was also listed for a final hearing stretching over 6 days in September 2024.

[2]At the hearing, the Tribunal was assisted by an interpreter who spoke the Claimant’s principal language which is Brazilian Portuguese. I would like to record my thanks to the interpreter who carried out her job with substantial expertise. When considering the evidence in this case I have weighed in the balance the fact that the Claimant’s evidence came through an interpreter and the difficulties that a litigant in person without English as a first language would have in conducting this hearing.

[3]The Claimant gave evidence and was cross examined and I considered that evidence in addition to the various statements that the Claimant had provided. There was a bundle of documents that ran to 236 pages and I considered such documents as I had been taken to by either of the parties in their written and oral representations. Oral reasons were given late on the afternoon of 8 May. The Respondent asked for written reasons at the time and the Claimant subsequently asked for written reasons on 3 June 2024.

[4]Paragraph 7 of Schedule 1 of the Equality Act 2010 (EqA) states that those who have been certified by a consultant ophthalmologist as being blind, sight impaired or partially sighted will be deemed as being disabled under the EqA 2010. I have seen in the bundle that a Certificate of Vision Impairment was signed by Professor Hossein to the effect that the Claimant was “partially sighted” on 12 October 2022. The Respondent accepted that the Claimant was deemed disabled from this point but challenged that the Claimant had been disabled prior to then. I acknowledge that whilst the Claimant is deemed to be disabled as at 12 October 2022 that does not necessarily mean that she was not a disabled person before this time, if she meets the definition of disability set out at section 6 (1) of the Equality Act 2010 and which reads as follows: “A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”

[5]I have seen the Claimant’s medical records and they can be summarised, in respect of eye issues, as follows: GP Records from 27 February 2015 a) 15 December 2016 – “some eye problems at work, asking for GP’s letter to change department, wears glasses” p.84 b) 15 February 2017 – “has a job where she needs good near vision and optician has offered her reading glasses but she is convinced that looking at things through a magnifier will damage her eyes. She wants a letter from me telling her company that she needs to change jobs. I am unable to provide this. I said I'd refer her to ophthalmology if she has a letter from her optician recommending that a referral is indicated as all she has presented me with is her visual acuity readings. She does not want to see the optician because all they want to do is sell her reading glasses. I suggested that reading glasses may be the answer to her problem but again she does not want magnification due to her health beliefs.” c) 14 March 2017 – “Advice from ophthalmologist. Visual disability is only for partially sighted or restricted peripheral vision which does not apply for her.” (82) d) 17 August 2017 – “Worried about vision concerns about brain tumour intermittent headache different parts of head short lived eyes can be mucousy no double vision or vomiting. On examination eye movement and fields normal” (80) e) 17 July 2019 – “Eye problems has seen ophthalmology multiple times wants to book consultation with Mr Conley at the Spire hospital” (77) f) 11 November 2019 – “Long-term feeling of eyes inflamed three years and feels worse with safety glasses. Works in laboratories at cosmetic factory. Seen by optician recently she requested ophthalmology referral. Seen in Brazil in October. Seen by ophthalmologist in June - wanted exemption from safety glasses. Seen by ophthalmologist consultant August 2018 - dry eyes. Seen at QH ophthalmologist May 2017 no ophth abnormailty abnormality. Seen at QH ophthalmologist May 2017 presbyopia. Wants NHS referral to Southampton professor Parwez Hossain. (75) Other Medical evidence provided g) 8 June 2015 optician’s report – Eyes healthy, reading glasses for close work and VDU. h) 17 October 2015 - Voucher for safety glasses with single vision lenses given by Specsavers. i) 23 January 2017 optician’s report – Eyes generally healthy. Advise regular breaks recall 24 months. j) 25 January 2017 – Occupational Health report indicated that the information they had seen suggested that the Claimant “had no defects other than the requirement for a slight magnification at reading distance” and the Claimant’s suggestion that she was “too disabled” was an emotive statement as opposed to one of fact. No adjustments were required for her role. k) June 2017 – Dr Meredith, a Consultant from the Portsmouth Hospitals NHS Trust wrote that the Claimant’s main problem appeared to be struggling to see close up and on examination could “find no abnormality with the eyes today” save for some near sightedness which was a normal part of aging. There was a risk of dry eye in the future and no follow up was arranged. l) There was a further referral on 8 August 2017 “as (the Claimant) is intending to pursue legally towards her employer and she would like an opinion on her vision problem.” m) A Consultant at Portsmouth NHS (Mr Yang) saw the Claimant on 25 November 2017. The Claimant described her issue as “not being able to see herself in the mirror for make up without glasses”. The Claimant was examined and the ocular examination was “unremarkable”. She would need glasses but this was not a pathology but simply from aging. There was no intervention needed and she had very good, corrected vision. She was discharged from further follow up. n) On 22 May 2018, the Claimant asked to be re-referred and Dr Forbes a Consultant at Optegra Health Care saw the Claimant for what was described as a “third opinion”. She considered that laser treatment was not appropriate the Claimant had a combination of mild dry eye and possibly an allergy to something at work plus short sightedness. o) On 4 August 2018, the Claimant obtained an Advanced Eyecare Report from Optical Express and a consideration shows that there would appear to be no issues with either the Outer or the Inner eye. p) On 1 April 2019, the Claimant consulted with Mr Anderson, another consultant surgeon where she raised some issues that had arisen at work. Again, the examination did not indicate any problems with the eyes save for low grade hyperaemia. q) On 23 July 2019, the Claimant was again referred to a consultant at her request. In the referral it states that “she has previously seen several consultants and is most aggrieved that her eye condition / inflammation has not been remedied”. r) At the optician on 8 September 2019 the Claimant was described as “seeming to have own agenda” (169). s) On 17 October 2019, the Claimant saw a Brazilian Ophthalmologist and he recommended that the Claimant be transferred to an area where safety glasses would not be needed, where there was no glare and reflection and no requirement for close focus. He does not seem to have made any examination as such and appears to record what he has been told by the Claimant. t) On 12 November 2019, the Claimant was referred to another consultant – Mr Hossain. u) On 19 November, the Claimant was seen by Occupational Health who remarked upon her near sightedness and that it was a part of the aging process. She commented that the April 2019 consultation had indicated mild Hyperaemia and that from a diagnosis basis there was the near sightedness and possibly some dry eye syndrome. v) On 20 January 2020, the Claimant saw Professor Hossain who diagnosed underlying evaporative dry eye disease with moderate presbyopia and nuclear sclerosis, mild meibomian gland dysfunction, severe photophobia and moderate latent hypermetropia and recommended some treatment. Her main complaint was of dry and irritable eyes which in the office and outdoors were not so bad and offered relief. w) After a telephone conversation on 2 June Mr Anderson asked Mr Hossain for a second opinion in relation to the mandatory wearing of safety spectacles on the assembly line. The diagnosis offered up is for “low grade ocular surface with Hyperaemia and astigmatism with Presbyopia. In a further referral letter the reason for the referral is given that she has “glare”. x) On 15 August 2021, the Claimant went to see Specsavers and she requested an ophthalmological opinion. y) On 18 August 2021, the Claimant was seen by Mr Vouzounis at University Hospital Southampton. She gave a vague history and wanted him to provide a letter to support her employment claim. He described the eye examination as “overall unremarkable”. z) On 22 December 2021 she saw Mr Konstantopoulos a Consultant Ophthalmologist who discharged her from further follow up. His comments were as follows: “She has non-specific symptoms that focus around not seeing clearly at close up and intermediate distances. This is characteristic of her refractive status of hypermetropic presbyopia. Her ocular assessment today was within normal limits with normal topography scans, macular OCT, IOP's and optic disc assessments. I have encouraged her to attend a High Street optometrist although the refraction she presented me with today achieved 6/6 vision”. He went on to say that he could not improve on her refractive status and symptoms. A layman’s translation of the above is that the Claimant is a tad long sighted which is adequately corrected by glasses and there is nothing from a treatment perspective that is required and nothing was found after various tests. It is consistent with the vast majority of the reports set out above.

[6]The Claimant was seen by Mr Hossain on 12 October 2022 and his report at 213-214 of the bundle indicates that her symptoms have progressed and worsened since January 2020 and she had a case to be registered as partially sighted. He confirms that he has completed the certificate and the Claimant would be deemed as disabled.

[7]The Claimant produced a number of statements in which, inter alia, she criticised various doctors and consultants she saw. She describes Dr Meredith’s consultation in May 2017 as being “very disappointing” and she suggests, without giving any evidence as to why it would be, that there was “some sort of connection between the eye department and the Respondent” and in fact later suggests in the same statement that Specsavers were also in on the plan to try and cheat the Claimant. I find no evidence to support such a conspiracy and it is indicative in my view of the Claimant’s unreliability that she would cling to such groundless allegations.

[8]The EqA defines a disabled person as a person who has a ‘disability’ (S.6(2) EqA. A person has a disability if that person has ‘a physical or mental impairment’ which has a ‘substantial and long-term adverse effect on [the person’s] ability to carry out normal day-to-day activities’ (S.6(1) EqA) . The burden of proof is on the claimant to show that he or she satisfies this definition.

[9]In Goodwin v Patent Office, the EAT said that the words used to define disability in S.1(1) DDA (now S.6(1) EqA) required tribunals to look at the evidence by reference to four different questions (or ‘conditions’, as the EAT termed them):

[10]Did the claimant have a mental and/or physical impairment? (the ‘impairment condition’) a) Did the impairment affect the claimant’s ability to carry out normal day-today activities? (the ‘adverse effect condition’) b) Was the adverse condition substantial? (the ‘substantial condition’), and c) Was the adverse condition long term? (the ‘long-term condition’). d) Ultimately the question of whether the Claimant was a disabled person is a legal one and not a medical one but in this matter there is a substantial body of medical evidence to guide me. Fortunately, that medical evidence as set out above is consistent and clear.

[11]Dr Laing, the Claimant’s GP was very supportive of the Claimant and was tireless in her efforts to assist the Claimant. The Claimant has been investigated on a regular basis for many years and it is clear to me, and I find, that she was seeking a diagnosis from a medical practitioner which would be supportive of her desire for adjustments in the workplace. It can be seen that the Claimant was dogged in this quest but time and time again the medical investigations were not supportive of any form of diagnosis other than the Claimant was suffering from the normal deterioration of eyesight that goes with age. In particular even as late as August 2021 the eye examination was described as unremarkable and in December 2021, there was a further indication that nothing was required.

[12]The Claimant is described as having her own agenda by one of the individuals she saw. Whilst I accept that the Claimant was suffering from the onset of age-related long sightedness I do not accept that it was any different to that encountered by the vast majority of the population. Having heard the evidence, whilst I accept that there were times when the Claimant had mild eye irritation I find that she sought to exaggerate her symptoms in order to find support for the changes that she put in at work. To put it another way she believed that she needed change at work and sought to find a diagnosis that would assist her to achieve her aim. Doctor after doctor, expert after expert failed to live up to expectations as they refused to fall in line with her wishes. The Claimant asserts that some were liars and/or biased against her. I cannot see nor have I had any evidence that they were anything other than professional simply doing their job to the best of their ability.

[13]I do not accept that the Claimant was a disabled person pursuant to the EqA at any time prior to her becoming deemed disabled in 2022.

[14]The first point to consider in the Goodwin questions is the impairment question – did the Claimant have a mental or physical impairment and the second is to consider whether the adverse condition was substantial. I am aware that the word “substantial” in the EqA holds a meaning of “more than minor or trivial” (s.212(1) EqA.

[15]The Claimant is quite certain that is the case from as far back as 2016, but having reviewed in detail all the medical evidence I find that her belief is simply not substantiated. Her GP does not make any diagnosis between 2016 and 2019 and simply passes her onto consultants to consider the position.

[16]The optician’s report in both 2015 and 2017 disclose no medical condition. There are then two different consultants in 2017 who fail to find any abnormality save for normal age-related deficiencies. From then until January 2020 the Claimant is seen by a number of other specialists and the only diagnosis made is mild dry eye. Even taking into account the low bar for substantial I am quite satisfied that objectively the condition was not any more than minor than trivial. To the extent the Claimant suggests it was then that is not supported by any medical opinion and is not a true account by her but a manifestation of her quest to gain a diagnosis.

[17]Professor Hossain in January 2020 did not consider that she met the required level of sight to be disabled following his examination and provided a number of diagnoses that were clearly minor. Even at that point I do not accept that the condition was more than minor or trivial. Towards the end of 2021 a consultant examined her and found in essence very little wrong. There was clearly a worsening between December 2021 and October 2022 but there is no evidence that would suggest that the Claimant met the statutory definition at any point before October 2022.

[18]I find that up until December 2021 although the Claimant did suffer from minor eye symptoms they were not anywhere near as bad as the Claimant suggested. They certainly were not substantial and there is no evidence that any problems with the eye were long term or had any material effect on her day-to-day activities. As I have stated earlier in this Judgment the Claimant has at all material times exaggerated the irritation caused by her eyes and any effect on her day-to-day activities in order to further her own agenda. Despite her strong representations to a range of medical professionals none of them until the very end indicated that there was anything other than minor wrong and more often nothing at all. I make the finding of exaggeration on the basis of the clear medical evidence and the Claimant’s desperate quest / agenda for something wrong to be found.

[19]The suggestion in the Claimant’s disability impact statement that she had cataracts from 2016 is not borne out by the evidence that I have been shown and I do not accept that the eye condition caused the alleged impacts to the Claimant’s daily life as set out in that statement. Save for a single suggestion that he reflection in the mirror was blurred, none of the other suggested effects on daily life are included in any of the consultant’s letters contemporaneously. Again, I find that the disability impact statement is at best an exaggeration, which has been produced in order to further the Claimant’s own agenda.

[20]There was clearly a worsening of the Claimant’s condition from what is in effect a clean bill of eye health following 22 December 2021 when she saw Mr Konstantopoulos, a Consultant Ophthalmologist, who discharged her from further follow up and when she was given the certificate on 12 October 2022. I am satisfied however that I do not have sufficient evidence that the Claimant met the definition of disability at any point prior to 12 October 2022.