Mr R Smith v Chenery Enterprises Ltd T/a Premier Windows and Conservatories: 1601680/2018
EMPLOYMENT TRIBUNALS
Case No 1601680/2018
Between
Mr R SmithClaimantChenery Enterprises Ltd T/a Premier Windows and ConservatoriesRespondent
Before
Employment Judge S JenkinsMr J Chambers (instructed by Solicitor) for claimantMs S Murphy (instructed by Counsel) for respondentDate 12 November 2019
JUDGMENT
The Claimant was not, at the relevant times, disabled for the purposes of section 6(1) of the Equality Act 2010.
REASONS
[1]The hearing was listed to deal with the Claimant’s claims in their entirety, including claims of unfair dismissal and disability discrimination, over three days. However, the day before the hearing the Tribunal was notified that one of the Claimant’s witnesses had been in an accident and would be unable to attend. The Claimant made an application to postpone the hearing. The parties were informed that the issue would be considered at the hearing and having heard from Mr Chambers and from Ms Murphy it appeared to us that the witness’s evidence was important and therefore it would not be appropriate to deal with the entirety of the claims in his absence. Instead, as the issue of whether the Claimant was disabled for the purposes of the Equality Act 2010 was contested, we proceeded to hear Case Number: 1601680/2018 2 evidence and submissions on that issue in order that it could be concluded leaving the other aspects of the case to be dealt with at a subsequent hearing.
Findings
[2]We noted that the Claimant suffered an injury at work on 3 July 2018 in which he fell from a rung of the ladder and injured his lower back. Whilst he returned to work for a period of time after that, he was absent due to injury from late July 2018 and was dismissed on 28 August 2018.[3]The medical evidence in the bundle showed that the Claimant had had various appointments with his GP, commencing on 24 July 2018 with further appointments taking place on 28 August, 7 September, 23 November, 31 January 2019, 5 February, 14 February and 21 February. Physiotherapy treatment was discussed but was not undertaken with the physiotherapist at the General Practitioner’s, but it transpired that the Claimant had had a discussion with the physiotherapist and did exercises at home.[4]Within the medical notes there were various references to the Claimant’s conditions, notably in relation to the 7 September 2018 appointment, it was noted that the Claimant’s pain had been gradually better over the previous few weeks. On 23 November 2018 the record noted that there were “no red flags”, and that the Claimant had reported lower back pain easier but had flair ups when doing physical work and twisting his trunk. On 31 January 2019, it was noted that the Claimant got intermittent pins and needles down the legs and that that was affecting his work, frequently having to take days off. The notes on 14 February 2019 stated that the Claimant had said that he was “not too bad”, but that his back pain persisted, and on 14 February 2019 it was noted that there was less pain in the lower back but that the Claimant had described some pins and needles down his left leg when sitting.[5]There was a referral to the muscular-skeletal services section on 5 February 2019 but there was no evidence of any further medical investigation or treatment beyond that point.[6]Within the Claimant’s impact statement submitted in March 2019, the Claimant referred to being in constant pain and pins and needles, being unable to sit down for more than 10 to 15 minutes before experiencing pins and needles, and being unable to drive a car for more than 20 minutes without experiencing back pain and having to stop. He also referred to having broken and interrupted sleep.[7]Evidence within the bundle however noted that the Claimant had applied for a job as a part-time van driver at some point prior to 25 October 2018. In Case Number: 1601680/2018 3 his witness statement before us the Claimant confirmed that there had been some improvement in his condition but that he was still not recovered, he still had difficulty driving, and his sleeping was still interrupted.
Law
[8]In terms of the law we had to apply, we were conscious that Section 6(1) of the Equality Act 2010 noted that someone would be categorised as disabled for the purposes of the Act if they had, for our purposes, a physical impairment which had a substantial and long term adverse effect on the their ability to carry out day to day activities. The main issue for us in that regard was to consider the impact of the Claimant’s condition on his day to day activities and not any specific aspect which related to his particular job.[9]With regard to the issue of “long term”, we noted that this required us to consider whether the condition had lasted for at least 12 months, and in terms of “substantial”, we noted the guidance that we had to consider whether the impact was more than minor or trivial. In that regard we considered the Secretary of State’s guidance on matters to be taken into account in determining questions relating to the definition of disability and we assessed the factors set out within that.
Conclusions
[10]We noted that the Claimant clearly did have, and indeed does still has, a condition in terms of suffering lower back pain and that condition commenced in July 2018. However, we were not satisfied that the condition had the required substantial or long-term adverse effect.[11]We reminded ourselves that we were focused not on the job-specific physical demands of what the Claimant was doing for the Respondent, and in terms of what he might have looked to try to do in a similar job subsequently, but on the impact of his condition on his day to day activities.[12]The Claimant’s own evidence, in the form of his impact statement and his witness statement, and indeed the documentary evidence in the form of the General Practitioner’s notes, focused on the impact on the Claimant sitting and driving and on the impact on his sleep. However, the medical notes did not indicate significant problems at any time, and we noted that the Claimant had applied for a driving job at some time prior to October 2018. Whilst we noted that that driving job may have involved breaks, it was nevertheless of significance to us that the Claimant had felt sufficiently fit to apply for a driving job at that time.[13]We also noted that there was no evidence whatsoever of any medical intervention in relation to the Claimant since February 2019. Case Number: 1601680/2018 4[14]In our view the evidence was not sufficient for us to conclude that there had been the required substantial adverse effect, or the required long-term effect, in terms of the condition impacting on the Claimant’s day to day activities to the required degree by approximately July 2019. Our conclusion therefore was that the Claimant was not disabled for the purposes of the Equality Act and that the case should therefore proceed in relation to the other claims only.