Mrs M Milczarek and others v Yorkshire Repak Ltd: 1810462/2024 and others

EMPLOYMENT TRIBUNALS

Case No 1810462/2024, 1810463/2024, 1810464/2024

Between

Mrs M Milczarek and othersClaimant

Yorkshire Repak LtdRespondent

Before

Employment Judge P Morgan

Mr D Campion (instructed by Counsel) for respondent

Date 10 September 2025

JUDGMENT

[1]At the relevant time the Second Claimant was a disabled person as defined by section 6 Equality Act 2010 because of arthritis (knee).

[2]At the relevant time the Second Claimant was not a disabled person as defined by section 6 Equality Act 2010 because of hypertension (high blood pressure), and/or arthritis (shoulders, elbow and wrists), and/or stress, and/or anxiety, and/or depression.

[3]The complaint of the Second Claimant of failure to make reasonable adjustments can therefore proceed.

[4]At the relevant time the Third Claimant was a disabled person as defined by section 6 Equality Act 2010 because of arthritis, and/or diabetes.

[5]At the relevant time the Third Claimant was not a disabled person as defined by section 6 Equality Act 2010 because of depression and/or low mood.

[6]The complaint of the Third Claimant of failure to make reasonable adjustments can therefore proceed. Case Number: 1810462/2024, 1810463/2024, 1810464/2024

[7]All claims shall proceed to final hearing in accordance with the Case Management Order. P Morgan JUDGMENT having been sent to the parties on 16 September 2025 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunals Procedure Rules 2024, the following reasons are provided.

REASONS

[1]The First Claimant was employed on 21 May 2010, the Second Claimant was employed on 29 July 2010, and the Third Claimant was employed on 26 July 2012, by Yorkshire Bottle Solutions. At the time of dismissal they worked at the SF Knottingley Site, a bottle factory, in the resort department. Previously the Second and Third Claimants had worked in the manufacturing department. On 1 May 2017 the Claimants were TUPE transferred to the Respondent. All three Claimants were suspended from work on 3 May 2024, and were dismissed on 27 June 2024. Early conciliation started on 25 August 2024 and ended on 06 October 2024. The claim form was presented on 6 November 2024.

[2]The Claimants bring claims for unfair dismissal, wrongful dismissal, victimisation, breach of contract (it is the Claimants’ contention that they had a contractual right to work at the Knottingley site as this was a term protected by TUPE relating to location), and direct race discrimination (the Claimants are Polish). The Respondent denies these claims and advances that they were dismissed due to gross misconduct, and that it did not use the disciplinary process to redeploy the Claimants to the Barnsley site and/or to change the TUPE agreement.

[3]The Second and Third Claimants additionally bring claims for direct age discrimination relating to their dismissal, and failure to make reasonable adjustments. They advance that by way of reasonable adjustment that they should have been permitted to remain working in Knottingley and/or remain working light duties in the sorting department. They allege that the Respondent was aware of their disabilities and that working in Knottingley on light duties was an adjustment which had been previously made for their disabilities. The Respondent denies these claims. Although the Respondent accepts that it was aware of the Third Claimant’s arthritis, it advances that it was not aware of any of the other disabilities.

[4]A case management hearing took place before EJ Knowles on 31 March 2025, and was listed for a two day public preliminary hearing to determine a preliminary issue of whether or not the Second and Third Claimants are disabled for the purposes of Section 6 of the Equality Act 2010.

[5]The Tribunal heard evidence from the Second and Third Claimants. Both the Second and Third Claimant gave evidence through an interpreter, and all parts of the hearing were translated for the Claimants by the interpreters. There was also an agreed file of documents.

[6]For the purposes of the failure to make reasonable adjustments claims brought by the Second and Third Claimant the alleged PCP is the requirement for them to move to Barnsley and/or work on production, communicated by letter on 3 June 2024, and applying from 11 June 2024. The material time is therefore 11 June 2024. The Claims and Issues

[7]The issues for the Tribunal to determine were: 1. Disability – Second Claimant 1.1 Was the Second Claimant disabled within the meaning of Section 6 Equality Act 2010 by reason of hypertension (high blood pressure), arthritis, and depression. The test is as follows:(a) Did the Second Claimant at the material time, have a physical or mental impairment (namely hypertension (high blood pressure), arthritis, and depression)?

(b) At the material time, did that impairment have an adverse effect on the Second Claimant’s ability to carry out normal day-to-day activities?

(c) At the material time, was the effect of that impairment substantial and long-lasting? 2. Disability – Third Claimant 2.1 Was the Third Claimant disabled within the meaning of Section 6 Equality Act 2010 by reason of arthritis, diabetes type 2, and depression. The test is as follows: (a) Did the Third Claimant at the material time, have a physical or mental impairment (namely arthritis, diabetes type 2, and depression)? (b) At the material time, did that impairment have an adverse effect on the Third Claimant’s ability to carry out normal day-to-day activities? (c) At the material time, was the effect of that impairment substantial and long-lasting? Legal Principles

[8]We must now turn to the legal principles and then to the findings of fact applicable to those legal principles.

[9]The Equality Act 2010, Section 6, Disability: (1) 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.

[10]In considering whether a claimant is disabled within the meaning of the Act the Tribunal takes into account the guidance in Goodwin v Patent Office

[1999] ICR 302

, Morison J (President), approved in Sullivan v Bury Street Capital Ltd

[2021] EWCA Civ 1694

. The Tribunal must ask itself four questions:(a) Was there an impairment,

(b) What were its adverse effects on normal day to day activities,

(d) Was there a real possibility that they would continue for more than 12 months.

[11]In determining the issue of disability the Tribunal is required to take into account the Equality Act 2010 Guidance, (hereinafter “Guidance”), where relevant, (Schedule 1, Paragraph 12, Equality Act 2010), although the Guidance is not itself an authoritative statement of the law.

[12]The Guidance at A5 notes that disability can arise from a wide range of impairments. A physical impairment is where a claimant has something wrong with them physically (College of Ripon and York St John v Hobbs

2002 IRLR 185

), a mental impairment need not be a clinically recognised illness (McNicol v Balfour Beatty Rail Maintenance Ltd

[2002] EWCA Civ 1074

; Guidance, Appendix 1).

[13]Diabetes has been recognised as a physical impairment for the purposes of the statute (Yaqoob v Institute of Chartered Accountants in England and Wales, ET Case No. 2409731/08). It is also well established that depression can be a mental impairment for the purposes of the Act (although it needs to be distinguished from a reaction to adverse consequences). In Paragraph A5 of the Guidance, an impairment from which a disability can arise is taken to include “mental health conditions with symptoms such as anxiety, low mood, panic attacks, phobias…”

[14]The burden of proving disability is on the claimant (Tesco Stores Ltd v Tennant

[2020] IRLR 363

). The definition of ‘substantial’ is ‘more than minor or trivial’ (Section 212(1) Equality Act 2010). Whether there is a substantial adverse effect is a matter of fact for a Tribunal to determine (Rayner v Turning Point [2010] 11 WLUK 156). The Tribunal takes into account the Guidance, considering the time taken by the claimant to carry out the activity, the way it is carried out, the cumulative effects of an impairment, the cumulative effects of a number of impairments, and others.

[15]The Tribunal also notes cumulative effect. An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-today activity in isolation. However, it is important to consider whether its effects on more than one activity, when taken together, could result in an overall substantial adverse effect on the person’s ability to carry out normal day to day activities. (Note Guidance B4). The Tribunal also notes Guidance, B6, “A person may have more than one impairment, any one of which alone would not have a substantial effect. In such a case, account should be taken of whether the impairments together have a substantial effect overall on the person’s ability to carry out normal day-to-day activities…. The cumulative effect of more than one impairment should also be taken into account when determining whether the effect is long-term”.

[16]The case of Mrs R Ginn v Tesco Stores Ltd, Appeal No.

UKEAT/0197/05/MAA

, Employment Appeal Tribunal, 2005 WL 2492498, makes it clear that where there is a finding of disability in relation to a particular complaint (in the case vertigo – the EAT substituting a finding of disability as regards the vertigo component), a Tribunal should also consider the effect of two illnesses together, here rhinitis, which the ET had not found to constitute a disability (see Para 22). (Cf Purohit v Hospira UK Ltd EAT 0520/13, although in this case the EAT did not have the Guidance cited to it). The Tribunal also notes Stratton v Cauldwell Communication Ltd ET Case 2400889/06 – a case in which diabetes affected continence (the claimant needed to urinate several times an hour, and had on occasion not been able to get to the toilet on time), and effects on memory and concentration. In this case memory and concentration were held not to be themselves sufficiently substantial to constitute disability, but the cumulative effects were held to be.

[17]Pursuant to Schedule 1, at Paragraph 5 Equality Act 2010, an “impairment” is to be treated as having a substantial adverse effect on the ability of a person to carry out normal day to-day activities if measures are being taken to treat or correct it and, but for that, it would be likely to have that effect, (this is the deduced effect element). “Likely” is taken to mean that it “could well happen” (SCA Packaging Ltd v Boyle

[2009] ICR 1056

and All Answers Ltd v W

[2021] IRLR 612

; Guidance C3). In establishing deduced effect reliable evidence is required. Typically a Claimant’s assertion as to what might happen if medication were to be stopped is unlikely to be sufficient (Woodrup v London Borough of Southwark

2003 IRLR 111

[18]While the Act does not define the term “normal day-to-day activities”, Paragraph D3 of the Guidance provides some useful examples of such activities. In considering day to day activities the focus here is not on what the claimant can do, but what they cannot do.

[19]D3: “In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education- related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern.”

[20]The Tribunal also notes D10, (specialised work-related or other activities may still involve normal day-to-day activities which can be adversely affected by an impairment. For example they may involve normal activities such as: sitting down, standing up, walking, running, verbal interaction, writing, driving; using everyday objects such as a computer keyboard or a mobile phone, and lifting, or carrying everyday objects, such as a vacuum cleaner), and D16.

[21]The Tribunal also notes the Appendix to the Guidance, which sets out an illustrative and non-exhaustive list of factors which, if they are experienced by a person, would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities. It notes that they include “difficulty carrying out activities associated with toileting, or caused by frequent minor incontinence” and “difficulty using transport”. It also notes the illustrative and non-exhaustive list of factors which, if they are experienced by a person, it would not be reasonable to regard as having a substantial adverse effect on normal day-today activities. Of relevance this list includes “inability to move heavy objects without assistance or a mechanical aid, such as moving a large suitcase or heavy piece of furniture without a trolley”, “inability to read very small or indistinct print without the aid of a magnifying glass”, and “simple inability to distinguish between red and green, which is not accompanied by any other effect such as blurring of vision”.

[22]Workplace activities may come within the compass of normal day to day activities, (Paterson v Commissioner for Police of the Metropolis

[2007] ICR 1522

). Day to day activities also can include irregular but predictable activities. (Note also Aderemi v London and South Eastern Railway Ltd

[2013] ICR 591

, EAT).

[23]There must be a causal link between the impairment and the substantial adverse effect.

[24]The effect of an impairment is “long-term” if it has lasted or is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected (Schedule 1, Paragraph 2). “Likely” means that it is a real possibility, and could well happen, rather than something that is probable or more likely than note (SCA Packaging Ltd v Boyle

[2009] ICR 1056

). Regarding recurring or fluctuating effects, the Tribunal notes the Guidance at C5.

[25]Disability is to be assessed as at the date of the alleged discriminatory act(s) (Cruickshank v VAW Motorcast Ltd

[2002] ICR 729

, EAT), and this is also the material time for the purposes of determining whether the impairment has a long-term effect (All Answers Ltd v W

[2021] EWCA Civ 606

, CA). At Para 26 of All Answers, the Tribunal is reminded that the question is “whether, as at the time of the alleged discriminatory acts, the effect of an impairment is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing as at the date of the alleged discriminatory acts … The Tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did (or did not) last for 12 months.”

[26]It is important to distinguish between an event/occurrence that post-dates the material date, and a later receipt of a diagnosis of a condition that existed at the time of the material event, and which could be diagnosed as such as at the material date. For instance a Tribunal is not permitted to consider the recrudescence of a claimant’s condition, or a readmission into hospital after the material date (McDougall v Richmond Adult Community College

[2008] EWCA Civ 4

, [2008] I.C.R. 431), the decision being on “the basis of evidence as to circumstances prevailing at the time of that decision” (per Pill LJ [24]), it is the evidence “relating to the relevant time” which is relevant (Rimer LJ [31]). (See also Singapore Airlines Ltd v Miss S Casado-Guijarro

UKEAT/0386/13/BA

). In Mr James Bennett v Mitac Europe Ltd EA-2020-000349-LA (Previously

UKEAT/0185/20/LA

), 2021 WL 04923339, His Honour Judge James Tayler, (in the context of a deemed disability case) notes that the point of diagnosis is not the date a person attends the doctor and is informed that he has the condition, but rather the date from which the medical evidence shows that the person had the condition.

[27]Thus a genetic test, (evidencing a disability from birth) carried out after the material date would be evidence of the condition at the time, and which was available at the time (even if no-one had in fact carried out the test at this point). If blood was drawn prior to the material date, but results awaited and only available after the material date (which subsequently revealed a relevant condition), this also would be evidence of the disability at the time, and which was available. Likewise with an X-ray taken either immediately before the material date (but the results awaited, and only provided after the material date), or taken soon after the material date, the results demonstrating the existence of a long standing degenerative condition present before the material date, that evidence is also relevant to establishing disability as at the material date. However, the provision of the information only after the material date is relevant to knowledge, in that if a diagnosis of the disability is not available at the time (even if subsequently the claimant is soon after diagnosed with having the condition at the material time) and unsuspected by the employer it will not be possible for the employer to have discriminated because of it.

[28]The burden of proving disability rests with the claimant, who must bring evidence to establish this. In the absence of evidence that a condition is likely to last for at least 12 months a Tribunal will err if it holds a respondent liable for discrimination before the effects have in fact lasted for 12 months (Tesco Stores Ltd v Tennant,

UKEAT/0167/19

[29]Regarding depression, the Tribunal must consider whether such symptoms are evidence of an underlying mental impairment or only a reaction to adverse life events. At Para 42 of J v DLA Piper UK LLP

[2010] ICR 152

, Underhill P, drew a distinction between a “mental illness” or “mental condition,” which is “conveniently referred to as ‘clinical depression’ and is unquestionably an impairment within the meaning of the Act” on the one hand, and “a reaction to adverse circumstances, or adverse life events,” The Tribunal also notes the case of Igweikie v TSB Bank Plc

UKEAT/0119/19/BA

[30]Further to DLA Piper above, in Herry v Dudley Metropolitan Borough Council

[2017] ICR 610

, it was held that Underhill P did not rule out a reaction to adverse circumstances being long-lived. The EAT observed that “there can be cases where a reaction to circumstances becomes entrenched without amounting to a mental impairment; a long period off work is not conclusive of the existence of a mental impairment.”

[31]In Para 63 of Royal Bank of Scotland plc v Morris, (

UKEAT/0436/10/MAA

, unreported, 12 March 2012) Underhill P observed that “in cases where the disability alleged takes the form of depression or a cognate mental impairment, the issues will often be too subtle to allow it to make proper findings without expert assistance. It may be a pity that is so, but it is inescapable given the real difficulties of assessing in the case of mental impairment issues such as the likely duration, deduced effect and risk of recurrence which arise directly from the way the statute is drafted.” Application of the Law to the Facts The Second Claimant, Ms Bem

[32]There are significant problems with the witness statement of Ms Bem as drafted. Ms Bem does not speak English. Her witness statement was drafted with the assistance of translation software. It lacks precision, and words may have been mistranslated from Polish into English. The Tribunal prefers the evidence which was given at the hearing with the assistance of the interpreter, and also the GP records provided. However, it expresses some concerns in relation to the accuracy of the witness statement. Hypertension/High Blood Pressure

[33]Ms Bem has high blood pressure. Her medical records evidence a repeat prescription of amlodipine tablets (blood pressure medication) from 25 January 2022, onwards. On 28 February 2023, Ms Bem’s blood pressure was taken by Mrs Joanne Brook, a Specialist Nurse Practitioner, and it was very high. At this point she had not taken her blood pressure medication in over a year (see P158 of the Bundle, the medical notes recording “opportunistic BP check – advised very high not taken meds for one year “didn’t think i had to” (sic)). In oral evidence Ms Bem stated “I may have felt well at the time”.

[34]When probed on the point by Mr Campion in cross examination put that despite taking 15 cigarettes a day and 16 units of alcohol a week (which Ms Bem accepted would raise blood pressure) she did not report any symptoms of high blood pressure to her GP, Ms Bem did not answer the question on two occasions, and instead challenged the alleged alcohol consumption.

[35]Subsequently on resuming her blood pressure medication after 28 February 2023 Ms Bem’s blood pressure reduced. Mr Campion put the question, in relation to the period March 2023 – June 2024, that “Talking about wanting blood pressure to be reduced to reduce risk of heart attack or stroke, we all do, but the high blood pressure itself wasn’t causing you any symptoms was it?” Ms Bem confirmed that this was correct. The Tribunal therefore holds on the balance of probabilities that the high blood pressure did not cause Ms Bem any adverse effects on normal day to day activities as at 11 June 2024.

[36]In addition, regarding deduced effect, Ms Bem is unable to establish that if she did not take her blood pressure medication that she would have suffered any adverse effect. Firstly, there is no medical evidence provided to the Tribunal to this effect. More importantly, the Second Claimant herself failed to take her blood pressure medication for a period of a year, and during which she did not report any such symptoms to her GP, or seek to restart her blood pressure medication, nor did she give evidence of any such symptoms occurring during this period in her evidence. During this year, (in which she did not take her medication, to 28 February 2023) the Claimant stated to her GP that she didn’t think that she needed to take the medication.

[37]Ms Bem’s high blood pressure does not meet the statutory definition of a disability. She has not established that it caused any adverse effects on day to day activities (indeed she accepted in evidence that it did not), and regarding deduced effects reliable evidence is required, (Woodrup v London Borough of Southwark

2003 IRLR 111

), indeed when the Claimant failed to take her medication for a year she not report any adverse effects. Arthritis

[38]In her witness statement Ms Bem refers to arthritis, inflammation of joints in shoulders, elbow and wrist, and she does not refer to her knee. However, in her pleaded case, in the particulars of claim attached to her ET1, she refers to arthritis, including knee and elbow pain, in oral evidence she also referred to her knee, and gave evidence in relation to her knee. Her medical notes also refer to her knee (see below).

[39]The CMO does not state which body part Ms Bem’s arthritis refers to. Ms Bem confirmed in her closing submissions that she was also relying on her knee, and she also gave evidence relating to her knee pain and its effects during cross examination.

[40]The Tribunal is concerned that there was some attempt to gild the lily regarding this element of Ms Bem’s claim. Some issues of credibility arose in relation to Ms Bem’s evidence, which Mr Campion put to her in cross examination, for instance her drinking record, (16 units per week, as recorded by Mrs Joanne Brook, Specialist Nurse Practitioner on Ms Bem’s GP visit on 28 February 2023), that there was a strong smell of alcohol, and her cigarette consumption, where Ms Bem contradicted the GP records (which record 15 cigarettes a day, also recorded on 28 February 2023). Whilst an unqualified translator was present during Ms Bem’s GP appointment, a family member – her son, which might distort what was understood by both Mrs Brook and Ms Bem, and there might be some misinterpretation, the Tribunal holds on the balance of probabilities that the medical record is an accurate account.

[41]The first time on Ms Bem’s GP records that there was any report of arm/wrist/shoulder aches was 23 February 2023, (contained at P158 of the bundle). It records “Musculoskeletal problems”, “works in packing factory, shoulder and elbow pain from repetitive work. taken PCM, ibuprofen. not helping. would like some naproxen”. The record further states “advised re analgesia, with PPI cover, gentle exercises, advised it not settling seek review.” In relation to her joints it was recorded that “Normal tone, power coordination + sensation”. She was prescribed naproxen, (56 tablets, one tablet twice daily when required for pain). The Tribunal holds that she had shoulder and elbow pain.

[42]In her witness statement, at Para 6 Ms Bem outlines a range of difficulties which she asserts result from her shoulder and hands. Here she refers to “a lot of inflammation in the joints, especially my shoulders and hands. I had difficulties with keeping strength in my hands and arms. I could not properly hold objects in my hands and things were falling off. I had difficulties with reaching and making repetitive movements. Things like gripping objects, opening packages, cleaning the house, doing gardening, doing shopping were difficult for me. Especially when I suffer from the arthritis flare ups (sudden inflammation, stiffness and pain of the joints)”.

[43]However, notwithstanding these alleged problems resulting from her shoulder and hands, Ms Bem never sort review on the GP records provided, and did not return to the GP about this pain (for instance to obtain further naproxen, the tablets lasting her until her GP visit regarding her knee (in July 2024)). She was not x-rayed in relation to her shoulder/hands, and did not seek to report any problem with hands/shoulder to GP again until 6 weeks prior to this hearing. Ms Bem states that she would cope with using oils and tablets, and a set of exercises for her knee.

[44]Mr Campion states that this evidence points to a short lived, non-specific, nonarthritic issue that resolved. He advances that if Ms Bem is to be believed, and had the impact at Para 6 occurred she would have attended her GP in relation to it. Ms Bem stated that she did not attend her GP in relation to these upper body problems as she needed to go to work. She states that she has now attended the GP for her shoulder as it is getting worse.

[45]Ms Bem gave evidence that she was taking non-prescription medication during this time, and that did not wish to take sick leave due to sick pay being too low.

[46]Ms Bem accepted in cross examination that she first sort review from her GP in relation to hand/shoulder pain 6 weeks ago. She has never been diagnosed with arthritis in the shoulders, elbow and wrist. Although initially stating in cross examination that there was arthritis in her arm, it is in fact the case that the only part of her body currently diagnosed with arthritis is her knee. Further, she stated in cross examination “I have not had this diagnoses. Just described to doctors. Refer to physiotherapist. Set of exercises, possible refer for X ray.” She confirmed that she first presented to the doctor with shoulder, wrist, and elbow issues other than in 2023, 6 weeks ago.

[47]The Tribunal notes that in October 2023 Ms Bem informed her GP that she enjoyed moderate exercise. She confirmed in cross examination that this involved walking and squats. She did not raise issues of pain with her GP at this point (October 2023).

[48]The entry on her GP records dated 28 February 2023 states “FROM of both arms, wrists shoulders, “aches” with 12 hour shift doing same movement.” In oral evidence Ms Bem confirmed that she was not referring to arthritis at the time, “That’s what I thought, I don’t have specific knowledge, describing what felt, aches and pains, that’s what I felt.”

[49]The Tribunal holds on the balance of probabilities that Ms Bem suffered from pain in her arm/wrist/shoulder in 2023, it also accepts that from time to time Ms Bem took painkillers due to repetitive strain, however, it does not accept that this condition was sufficiently serious to cause the effects that Ms Bem alleges. If Ms Bem had experienced not being able to properly hold objects, things falling off, and problems gripping, she would have attended her GP, and/or mentioned this problem prior to six weeks ago (six weeks prior to this hearing). The Tribunal does not accept her evidence on this point.

[50]Ms Bem stated in cross examination that she did not attend the GP about this problem prior to six weeks ago “Because I didn’t think I needed this before, the pain got so unbearable.” This is a recent occurrence post-dating the material date by over a year. The Tribunal also notes that Ms Bem’s medical records demonstrate that she visited her GP and engaged with her GP on numerous occasions since February 2023 and before six weeks prior to this hearing.

[51]However, the Tribunal does accept that Ms Bem had been holding back the naproxen (which she was prescribed in February 2023) for when things really hurt. Mr Campion put to her in cross examination that she did not, however, the GP appointment on 25 July 2024 regarding Ms Bem’s knee, contains an entry by Mrs Leanne Pearson, Specialist Nurse Practitioner (at P166 of the Bundle), which states “has tried Naproxen, with slight effect and also paracetamol.” Since Ms Bem’s previous prescription of naproxen was in 2023, (she was further prescribed naproxen on 25 July 2024) there is specific documentary evidence recording that she was taking naproxen – which supports Ms Bem’s account that had held back naproxen for when things were really bad.

[52]We must now turn to Ms Bem’s knee.

[53]Ms Bem’s GP records (the record of the appointment of 25 July 2024) record that in relation to her knee she had tried Naproxen, with slight effect and also paracetamol. As held above Ms Bem had held back naproxen (which had been prescribed for her upper body symptoms in 2023) for when things were really bad. She then took them for her knee pain.

[54]The issue of osteoarthritis was raised on the appointment of 25 July 2024, and this was the reason she was referred for an x-ray. He records state (at P166 of the Bundle): “For XR and review. ? OA ? for MSK steroid injection”

[55]The appointment of 25 July 2024 (at P197 of the Bundle) records “pain to R knee, has been happening for months. Tells me that the pain is now radiating up into the hip. Has tried naproxen with slight effect and also paracetamol.”

[56]Ms Bem was referred for an x-ray. On 31 July 2024 the X ray report stated, (P166 of the bundle), “Pain to R knee”. The pain being described as being inside the knee. The report stated “Abnormal, but expected, Other (text sent re self referral to physio).” The coded entry recording: “Mild degenerative changes demonstrated at the medial tibiofemoral compartment, where there is slight joint space narrowing and subarticular sclerosis. Suprapataller traction spur.”

[57]On 8 August 2024, (P166 of the Bundle), Ms Bem was informed that her recent knee x-ray showed some mild wear and tear changes in the knee, and was provided with a self-referral form to physiotherapy.

[58]On 23 August 2024, (P168 of the Bundle), the following was added by Dr Maria Hussain to Ms Bem’s medical records: “Mild OA on X ray”, Diagnosis mild OA L knee.” The entry further states “Ongoing L knee pain for months”. This diagnosis is also included in the note entered on Ms Bem’s medical records on 7 April 2025, (P169 of the Bundle) “known to have mild osteoarthritis in knee”.

[59]As at 23 August 2024 Ms Bem was prescribed codeine since naproxen stopped helping. However, this is a factor which the Tribunal cannot take into account in making the determination of disability.

[60]There is some confusion as to whether the issue concerns the left or right knee. In oral evidence Ms Bem stated: “It was always in the left knee. No right knee, but left knee some changes shown in X ray.” She agreed in cross examination that osteoarthritis was diagnosed in her left knee.

[61]Whilst Ms Bem is not able to assist the Tribunal on exactly when her knee pain emerged, her medical record refers to months as at 25 July 2024, (in that as of 25 July 2024 it had been occurring for months). Her medical records also refers to months as at 23 August 2024. Her medical records recording how long the pain was present as at 25 July 2024 do not refer to weeks, or a month, or two months, but expresses the phrase “months”. Mr Campion asks the Tribunal to accept that months refers to a period of exactly two months, such that the pain emerged in late May, this would be on or around 25 May 2024 (a period of weeks before the material date), (although the second usage of the word, “months” around a month later on 23 August 2024, means that at least in the second case of the use of the word on the medical records it was being used to express a period greater than two months). However, the Tribunal notes that with months 25 May 2024 would be the very latest day it could possibly have emerged with a plural use of the word month.

[62]It is Mr Campion’s position that the Claimant worked until the beginning of May 2024 without complaint, and that she did not refer to knee pain in her GP appointment on 8 May 2024 which was about mental health, where she requested a fit note, it is the Respondent’s case that by implication that Ms Bem would have referred to it if it were a problem at this point. However, as noted by Ms Bem in evidence, at her GP, it is one problem per appointment. The Tribunal accepts this, the fact that Ms Bem did not refer to this specific problem when she requested a fit note does not establish that Ms Bem did not have the problem as at 8 May 2024.

[63]Mr Campion advanced that as at 11 June 2024 (the material date) Ms Bem was not disabled since at this point she did not have a diagnosis of arthritis, and there was therefore no suggestion that this was a long term condition. He submits that her knee pain could be type of ache and pain which may have no underlying cause. However, he states that it was different when Ms Bem received a diagnosis of osteoarthritis since that is a long term condition.

[64]The Tribunal accepts that Ms Bem had knee pain caused by osteoarthritis on 25 July 2024. This problem had been ongoing for months. It was present on 25 May 2024, (this was the same knee pain reported to the GP on the appointment of 25 July 2024 which had been ongoing for months) and since it related to osteoarthritis and not a specific injury the Tribunal accepts that it had been occurring for at the very minimum two months before 25 July 2024, but not for a period of 12 months. However, in the absence of any evidence from the Claimant as to the commencement date of the knee pain the only date on the evidence available that the Tribunal can hold that she did suffer from osteoarthritis is from 25 May 2024 onwards. It is most improbable that a knee pain ongoing for months, which is diagnosed as osteoarthritis six weeks after the material date was not also osteoarthritis at the time of the material event. Otherwise the GP record would not have used the words months. On the balance of probabilities osteoarthritis was present on 11 June 2024 (the material date), and had been present for at a minimum at least a few weeks before then, (on the face of the GP record), if not longer.

[65]Ms Bem in cross examination stated “I don’t like going to doctors and talking about problems unless it is a last resort. I don’t like doing that”. On the balance of probabilities the Tribunal accepts that Ms Bem is reticent to attend her GP, and that she attended the GP for her knee pain well after it emerged as a problem. This reticence to attend the GP is supported by the fact that Ms Bem self-prescribed herself naproxen for her knee pain (a prescription medicine) which she had held back, rather than going to her GP, and the fact that she relies on family members to translate for her when she visits the GP, (she stated that “Don’t like going to doctors. Don’t always have someone to go with me translate for me”).

[66]On the balance of probabilities the Tribunal accepts that the osteoarthritis in Ms Bem’s knee caused pain sufficient for Ms Bem to take painkillers, including naproxen, which she had been holding back, and to subsequently seek medical attention. She states that she had problems in June with gardening, bending, squatting, moving heavy objects (whilst the Tribunal has accepted that she has overstated her case as regards her hand this is not determinative of the knee). She also stated that food shopping involves carrying, which causes pressure on her knee. The Tribunal notes that this reference to June was since Mr Campion specifically put the question to Ms Bem whether these were things Ms Bem struggled with now, or things she struggled with in June 2024. Ms Bem also referred to problems straightening her leg.

[67]Mr Campion referred Ms Bem to the problems referred to in Paragraph 10 of her witness statement (giving up hobbies, and also longer walks with family), and also to the knee pain referred to at the appointment on 25 July 2024 which had been happening for “months”, and then put the question whether she was talking about 2 or 3 months. Ms Bem replied “I can’t remember exactly but it’s a long time”. On being further questioned whether it was mid 2024 that she started to suffer difficulties with walking, she replied “Don’t remember exactly”. Although Ms Bem subsequently clarified that she gave up her hobby of walking due to depression.

[68]Given the diagnosis of osteoarthritis, and use of painkillers (including the stored naproxen, since over the counter medication was insufficient), the Tribunal accepts on the balance of probabilities that Ms Bem did have problems with gardening, bending, squatting, and moving heavy objects, (including shopping, she could not carry heavy shopping bags) due to knee pain. All of these actions would involve movement and pressure on the knee. As Ms Bem stated in cross examination the heavier the weight the bigger the pressure on my knee. Although Ms Bem was unclear exactly when these effects on day to day activities first emerged, given her reference to “it’s a long time”, which the Tribunal accepts, that these were present throughout the month of June 2024, and also on the balance of probabilities also present on 25 May 2024, taking into account the diagnosis and also her use of naproxen.

[69]In addition Ms Bem refers to insomnia and sleep problems regarding joint pain, stating that pain in her joints wakes her up at night. Given the use of naproxen (before it was re-prescribed to her, and at this point it was being used for knee problems) the Tribunal accepts on the balance of probabilities that osteoarthritis in the knee caused her sleep problems.

[70]These are adverse effects on normal day to day activities which are more than minor or trivial.

[71]Given that osteoarthritis (as accepted by the Respondent) is a long term condition. As put by Mr Campion, it is “different when get diagnosis of osteoarthritis that is a long term degenerative condition”, the Tribunal holds that there is a real possibility, that is it could well happen, that the adverse effects could continue beyond 12 months. In that as of at the latest 25 May 2023 Ms Bem had osteoarthritis. Ms Bem was therefore disabled as at the material date within the meaning of the Equality Act 2010.

[72]It is for a Claimant to establish that they meet the criteria of disability under the Equality Act 2010. Whilst it is possible that Ms Bem was disabled within the meaning of the Act prior to 25 May 2024, (given the reference to months in the entry in her medical records dated 25 July 2024) in the absence of further evidence as to the commencement of the disability prior to that date (save that regarding adverse effects Ms Bem stated that “it’s a long time”), the only date from which Ms Bem can establish that she was disabled from within the meaning of the Act, by reason of arthritis to her knee, was from 25 May 2023 onwards. Depression

[73]Ms Bem’s case is that her depression arose from her suspension. At the start of the hearing she initially stated that it arose from dismissal, but she corrected this, and subsequently gave evidence that it arose from her suspension.

[74]At P163 of the bundle her medical records contain the following coded entry for 8 May 2024 following an appointment with Dr Shahida Bilquis (GP Registrar) “mental health issues for the alst one month. feeling down with low mood, crying most of the time. unable to sleep at night. loss of appetite, not eating properly. work place stress. works in a glass factory for the last 14 years but recently the company lost contract so most of the people got fired and now different groupls of people working everyday. victim of racism as people telling her off for her language barrier and ethnicity. lots o fight at work-none physical. lives with daughter who has to skip academy to care for her. affecting daughter smental health as well. wants some health and sick note. no suicidal thoughts as family protective factor. Examination: very tearful.” (errors in original). She was then prescribed Setraline, “Take ONE table daily for anxiety/depression”.

[75]When it was put to her by Mr Campion that she was describing things which one would expect in situation such as a bereavement or a work event, Ms Bem accepted this.

[76]In oral evidence Ms Bem stated that there was significant worsening in her mental condition after dismissal. This was since she is a single mother with a 17 year old daughter, and the loss of her job was significant, she stated “I can’t come to terms with this”. In response to the question did it get worse after your dismissal Ms Bem accepted that it did: “Well yes, well I broke down without work my daughter, my age, prospect of finding a job without English”.

[77]Whilst effects on normal day to day living are advanced, including in the cotemporaneous medical evidence, as of 11 June 2024 there is no evidence that Ms Bem was suffering anything other than an adverse effect. Nor that it was likely to last for more than 12 months at this stage.

[78]The worsening of Ms Bem’s mental health occurred after her dismissal when in Ms Bem’s words she “broke down”. Since the Tribunal is required to assess disability as of 11 June 2024. At this date Ms Bem did not meet the requirement of disability by reason of depression under the Equality Act 2010. As of this date these is no evidence that she was suffering anything other than a reaction to an adverse event, or that it was likely to last more than 12 months. The change in her mental health after her dismissal is an event which post-dates the material date. The Third Claimant, Mrs Szmidt

[79]Mrs Szmidt relies on 3 conditions: arthritis, diabetes type 2, and depression. The Tribunal found Mrs Szmidt to be an honest witness, and she conceded on a number of occasions where to do so was potentially damaging to her case. Arthritis

[80]There is a significant history of arthritis in Mrs Szmidt’s GP records. The Respondent concedes that Mrs Szmidt was disabled within the meaning of the Equality Act 2010 as of the material date. This is an entirely proper concession. Diabetes Type 2

[81]The Tribunal must now turn to diabetes type 2. This is clearly potentially an impairment for the purposes of Section 6 of the Equality Act 2010.

[82]Ms Szmidt is a long term diabetic. She was suffering from the condition in 2018, and her GP records support a long term diagnosis of diabetes. She takes a range of medication for diabetes which is set out in her medical records, including Empagliflozin, Sukkarto, and Gliclazide. She also undergoes regular diabetic reviews, including regular checks of her eyesight.

[83]Mrs Szmidt always takes her medication, and her diabetes was under control as at the material date. Whilst it is tempting for a Tribunal to state that taking medication keeps her diabetes under control and that the consequences would be significant if she were not to take them, there is no evidence before the Tribunal to deal with the issue of deduced effect. The Tribunal is therefore not able to consider deduced effect on the evidence before it.

[84]Regarding the substantial adverse effects of diabetes on her ability to carry out normal day to day activities Mrs Szmidt relies on increased urination, tiredness, restricted diet, and vision problems. There are also other allegations relating to feeling thirsty, but there is no evidence before the Tribunal as to frequency, or effect. Tiredness

[85]Regarding tiredness/extreme fatigue, Ms Bem gave evidence that she may fall asleep due to her diabetes. However, this does not happen often (once every 2 or 3 months), when her sugar levels fall below 7. At this point she starts shaking, and needs to find something sweet to take to improve her sugar levels. She resolves this problem by eating a sweet, and she always carries a sweet with her in her handbag in order to do so. This is an occasional occurrence.

[86]By itself this is not a substantial adverse effect within the meaning of the Act. Vision

[87]On the balance of probabilities The Tribunal accepts that Mrs Szmidt suffers with blurry vision as a result of her diabetes. Vision issues are well established problems with diabetes, and this was the reason Mrs Szmidt was undergoing annual eye screening, which is recorded in her medical notes. She also attends the optician every six months.

[88]In evidence (which the Tribunal accepts) she stated “sometimes my vision is blurry, something I can cope with.” She gave evidence that this first started in 2020.

[89]Her blurry vision causes problems with reading. On being asked how frequent this was she stated “usually in the morning, get up from bed, eyes foggy at that time”. She confirmed that it resolved within 10-15 minutes. She also stated that it can happen when she reads too much. On Mr Campion putting to her that this issue with reading might be eye strain rather than diabetes, she accepted, “maybe, yes”.

[90]There is however variation in her vision, which the Tribunal accepts her evidence that it is “not constant, there are days when ok, then days when fall apart”.

[91]Regarding medical evidence available to the Tribunal her report dated 1 August 2024 is graded abnormal. She was unable to comment on it as she did not receive the letter and does not speak or read English. However, the medical letter (contained at P260 of the bundle) dating from 1 August 2024 evidences right eye background diabetic retinopathy, and right eye diabetic maculopathy, left eye background diabetic retinopathy, and left eye no maculopathy. Graded abnormal. Whilst this letter post-dates the material date it evidences that there has been some change to her eye as a result of diabetes, which supports her account of blurry vision before the material date. No such result was present in her previous eye screening in 2021.

[92]On the balance of probabilities the Tribunal holds that Ms Szmidt suffers from blurring of vision in the mornings, which causes problems with reading for 10- 15 minutes, and that this is caused by her diabetes. It further holds that this occurred sometime after 2020, from 2021. This is an adverse effect on a normal day to day activity, which is more than minor or trivial. It has also continued for a period greater than 12 months.

[93]Whilst is it not necessary to decide the case, whilst fatigue by itself was not sufficient to constitute a substantial adverse effect, considering the cumulative effect of the impairment both Mrs Szmidt’s vision problems and her fatigue are such as to result in an overall substantial adverse effect (note Guidance B4). By itself her vision problems would also meet the requirement. Diet

[94]Ms Szmidt gave evidence that as a result of her diabetes that she can’t eat fried pork, but can eat fried chicken. She discovered this due to measuring her sugar levels after eating, the consumption of fried pork leading to high sugar levels. The Tribunal accepts this evidence and holds on balance of probabilities that this is connected to her diabetes. However, Mrs Szmidt informed the Tribunal that she does not like pork anyway, and she accepted that this is therefore no great loss. The Tribunal holds that any adverse effect regarding her inability to eat fried pork is therefore minor or trivial. Urination

[95]Mrs Szmidt gave evidence that she has an increased need to urinate, and that she needs to go to the toilet more often. She states that she needs to urinate once every 1.5-2 hours, although on some occasions when she has an infection she has to go every 30 minutes.

[96]In her oral evidence she stated that this was caused by her diabetes, rather than her age (Mrs Szmidt was born in 1962). Although she accepted that it was possible that age and weight could make a difference. She stated in cross examination: “However, in my case they are caused by diabetes, because I know how and what I feel.”

[97]No evidence was before the Tribunal as to how frequent urination should be, and if Mrs Szmidt’s requirement to urinate is outside the norm for her age, sex, or weight. Mrs Szmidt compares herself to other work colleagues, but we do not know the age/weight/health of these colleagues. Mrs Szmidt therefore does not establish that this is a substantial adverse effect. In addition no causal link is established between the impairment and the effect.

[98]As a result of her vision problems and also fatigue (the latter by itself would not be sufficient, but in the light of the cumulative effect it contributes) the Tribunal holds that Mrs Szmidt was disabled within the meaning of the Equality Act 2010 by reason of her diabetes since 2021. Depression

[99]Mrs Szmidt’s medical records record the following entry for 8 May 2024, where her GP Dr Bilal Siddiqui diagnosed her with work related stress: “History: works in a glass factory, very stressed has been off and on work for ~ 1/12, feels cant work atm, wanting med3, No suicidal thoughts (XaIJ7) No thoughts of deliberate self harm (XaIuw) Plan: med3 issued but will need f2f befoe next issue to review Patient given advice (8CA..) … eMED3 (2010) new statement issued, not fit for work (XaX1E) PNG Image: MED3Statement.png New MED3 statement issued: Not fit for work - Valid from 08 May 2024 to 04 Jun 2024 Diagnosis: Work related stress”. (errors in original)

[100]In cross examination Mrs Szmidt was asked if her suspension caused stress. She accepted this. On being asked by Mr Campion “This wasn’t a long standing depression, a reaction to being suspended” she accepted that this was the case, but she also stated that she has been treated for depression up to now.

[101]On 5 June 2024 her GP issued her with a further fit note, as not fit for work, valid from 5 June 2024 to 4 July 2024, with a diagnosis of work related stress. On 11 July 2024 Mrs Szmidt attended her GP for a long term condition review appointment. During this appointment her mood was recorded as “normal mood” (P200 of the Bundle).

[102]Mrs Szmidt gave evidence that she suffers from travel anxiety, and did not wish to drive. The Tribunal accepts that some travel anxiety started at the time Mrs Szmidt was suspended. Mrs Szmidt gave evidence that she has been prescribed sertraline, but this is not in her medical records. The Tribunal holds that this post-dates the period covered by the medical records provided (which end on October 2024), and therefore occurs at a time substantially after the material date, and is therefore not a matter that the Tribunal can take into account in making its determination.

[103]No evidence of prognosis is available for depression as at the material date. In addition Mrs Szmidt was not diagnosed with depression at the time. As of this date there is no evidence that she was suffering anything other than a reaction to an adverse event, or that it was likely to last more than 12 months. Approved by