Miss C Okwereogu v Imperial College NHS Trust: 2201366/2021
EMPLOYMENT TRIBUNALS
Case No 2201366/2021
Between
Miss C OkwereoguClaimantMs Skinner, of counselRespondent
Before
Employment Judge HallidayIn person for claimantDate 2 October 2022
JUDGMENT
[1]The judgment of the tribunal is that the claimant was a disabled person at the material times under the Equality Act 2010: 1.1. by reason of IBS from 9 September 2019 to 21 March 2021; 1.2. by reason of her chronic back and neck pain from 9 September 2019 to 21 March 2021; and 1.3. by reason of her RSI from 17 September 2020 to 21 March 2021 and the claimant’s disability discrimination claim can therefore proceed.
REASONS
[1]This is the judgment following a preliminary hearing to determine whether the claimant was a disabled person at the material times, and whether (and if so when) the respondent knew of the claimant’s disability.[2]The disabilities relied on by the claimant are: 2.1. Irritable bowel syndrome (IBS); 2.2. Chronic neck and back pain; 2.3. Repetitive strain injury (RSI).[3]The claimant contends that the respondent had been aware of her conditions since her appointment and each amounts separately to a disability.[4]The respondent accepts that the claimant has each of the three conditions but contends that at the relevant time the conditions did not have a “substantial and long-term” adverse effect on the claimant’s ability to undertake normal day to day activities.[5]The respondent therefore contends that it did not know, nor could it reasonably have been expected to know that the claimant was disabled at the time of the alleged discrimination.[6]The respondent contends that the relevant time is the period from early September 2019 (the claimant having commenced employment on 9 September 2019) until 21 March 2021 (when the claimant issued these proceedings).[7]The issues to be determined at this hearing were: 7.1. Was the claimant disabled person within s 6 Equality Act 2010 at the time of the alleged acts of discrimination by reason of her IBS and/or chronic back and neck pain and/or RSI? 7.2. If so, did the Respondent know or could reasonably have been expected to know that the claimant was disabled at the time of the alleged discrimination?[8]This has been a remote hearing on the papers which has been consented to by the parties. The form of remote hearing was by Cloud Video Platform. A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing. The documents that I was referred to by the parties are in a bundle of 364 pages. At the start of the hearing the parties were informed that I would only look at those documents to which I was referred although I had reviewed the pleadings and some of the medical evidence prior to the commencement of the hearing.[9]I have heard from the claimant and reviewed an impact statement prepared by the claimant which was contained in the bundle and heard from and reviewed written submissions on the law by counsel for the respondent, Ms Skinner.[10]The veracity of the claimant’s evidence was challenged by counsel for the respondent in cross-examination. Having heard the claimant’s evidence and reviewed the relevant documents to which I was referred by the parties and some additional medical evidence contained in the bundle, I found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties. Facts Chronology
Facts
[11]The claimant started work with the respondent on 9 September 2019 as a Junior Multidisciplinary Team Co-ordinator.[12]Before she started work, the claimant completed a health questionnaire in which she identified that she had a number of medical conditions including: 12.1. chronic neck and back pain since 2014; 12.2. repetitive strain injury in November/December 2017; 12.3. irritable bowel syndrome.[13]On her joining form the claimant indicated that she believed she had a disability and that she needed adjustments to carry out her role effectively[14]On 2 September 2019 the claimant attended an Occupational Health appointment. A report was prepared entitled “health clearance” and dated 2 September 2019 which refers to a number of conditions including: 14.1. Chronic neck and back pain since 2014 which the claimant stated would likely be exacerbated by prolonged sitting and for which the claimant took paracetamol when required; 14.2. Repetitive strain injury in November/December 2017 triggered by her previous role and following which she had a DSE assessment and reasonable adjustments were implemented; 14.3. Irritable bowel disease since 2017 for which the claimant took immodium when symptoms were severe with a flare up every few days. The report states both that she can continue with her day to day tasks but also that she needs to have access to welfare facilities.[15]The report further stated that the effect on her day to day activities was that it may delay the claimant and she would have to leave early. The report confirmed that the disabilities were likely to fall within the Equality Act 2010 but was not specific about which conditions were being referred to. The “plan” set out to manage her conditions referred to a DSE assessment, access to welfare facilities, observing regular breaks and to micro breaks. The report did not specify which medical condition each of the elements of the plan related to.[16]Following this appointment, the Occupational Health advisor, Ms Zungara confirmed by email dated 6 September 2019 to Ms Eileen Gomez that the claimant was fit to work subject to adjustments being out in place, and that in her opinion “some of [the claimant’s] conditions would fall within the remit of the Equality Act 2010”. The recommendations were: 16.1. a workplace risk assessment should be undertaken; 16.2. the claimant would require additional breaks and easy access to welfare facilities; 16.3. for the claimant to observe her regular breaks; 16.4. to meet with the claimant regularly to offer support, review and agree activity; 16.5. for the claimant to observe micro breaks throughout the working day, (e.g. 1- 2 minutes every 30 - 45 minutes).[17]Ms Zungara referred specifically to the responsibility to consider adjustments under the Equality Act 2010 as well as under relevant health and safety legislation.[18]I therefore conclude that the respondent was aware that the claimant had IBS and chronic back and neck pain from the start of her employment and at all material times and that the respondent was aware that the claimant had previously suffered from RSI.[19]On 26 September 2019, following a concern raised by the respondent about the claimant’s body odour, a further referral was made to Occupational Health by Ms Gomez and following an appointment on 4 October 2019, Ms Catrina Hughes, Clinical Services Manager confirmed to Ms Gomez: 19.1. The claimant “suffered a neck and back injury in August 2014”, “she attended physiotherapy for exercises which she stated she still undertakes on her own”, “she was still experiencing back and neck pain”. 19.2. “The claimant was diagnosed with IBS in 2017. She was prescribed medication however states that she is not taking it now”. 19.3. The body odour is not linked to a medical condition and her social circumstances are good”. 19.4. The report concluded that the claimant was fit to perform her duties including attending on time and could attend 2.5 hour meetings with a 1 - 2 minute break every 30 - 45 minutes. A work-place assessment by the respondent’s back care specialist was to be arranged.[20]On 23 October 2019 the claimant sent an email chasing for an update on scheduling the appointment to an email address. “imperial.healthatwork”, referring to the fact that she had telephoned in relation her work desk assessment and an appointment with a back care specialist which she states “was meant to be arranged after my starter appointment and also my manager referral”.[21]A work desk risk assessment was undertaken on 31 October 2019 by Jenefer Fraser. Her report identifies musculoskeletal discomfort in the cervical and lumbar spine and recommended replacing the standard chair with an Orthopaedica 90 chair and a change in position every 30 minutes e.g., standing to access photocopy machine or an alternative task.[22]I remind myself that the pandemic impacted work places and practices from March 2020 and note the references in the evidence before me to the claimant working from home for some of the following period.[23]On 16 September 2020, the claimant was signed off sick for 7 days from 17 September 2020 to 23 September 2020 due to elbow pain. On 17 September 2020 a further occupational health referral was made by Ms Gomez and a telephone appointment was held on 2 October 2020. A report was prepared by Grant Ciccone (occupational health) which sets out that: the claimant had been diagnosed with RSI by her GP; she had had this condition in the past; she had throbbing in her elbows radiating to outer arms; she could lift her arm above her head with pain but had lost power in her arm; it was difficult to carry bags and that the claimant did not do much shopping; and that it was unlikely to be covered by the Equality Act 2010. The report advised physiotherapy, allocation of own desk and work station, allocation of some of the typing and keyboard duties to other colleagues, elbow support and the chair to be purchased that had previously been recommended by the back care specialist.[24]In a letter to Ms Gomez dated 2 October 2020, Mr Ciccone confirmed the diagnosis of RSI to the claimant’s elbows, the recommendation by the GP of physiotherapy and conservative treatment including working from home, and an elbow support. Mr Ciccone’s recommendations were: 24.1. Referral to in house occupational health physiotherapy service; 24.2. Purchase of a specific keyboard; 24.3. Purchase of an ergonomic mouse; 24.4. Support to continue to work from home; 24.5. Purchase of the chair previously recommended. Mr Ciccone confirmed that in his view the claimant would meet the criteria to be considered under the Equality Act 2010 (in contradiction to his earlier report). Medical Conditions IBS[25]I find that the claimant was first diagnosed with IBS in 2017 and it has continued throughout her employment with the respondent as stated by the claimant. The medical evidence provided supports this contention. This includes a report from St George’s NHS Trust dated 10 February 2017 which refers to upper abdominal pain and a letter from Forest Road Group Practice dated 24 June 2021 which sets out details of the claimant’s medical history from an initial presentation with lower abdominal pain and bloating in October 2016 and a diagnosis of IBS in October 2017. The summary of her medical history contained in various medical records and letters from her GP including a further detailed letter from Forest Road Group Practice dated 11 January 2022 summarising her medical history and copies of her medical notes, are all consistent with the claimant’s own account of her condition.[26]I accept that the severity of the symptoms may vary but find that she has throughout the relevant period suffered predominantly from diarrhoea with intermittent constipation and other symptoms such as pain, which can be severe, and intermittently from nausea, vomiting, reflux, bloating, flatulence and tenesmus. The respondent submits that the medical evidence does not support the fact that all these symptoms were present at all of the material times and alleges that the claimant exaggerates her symptoms. The claimant submits that she cannot recall the exact time-frame when each of her symptoms is present but that the diarrhoea alone as well as the other systems taken together and the fear of them occurring, have a significant adverse impact on her ability to undertake day-to-day activities.[27]I accept that the claimant’s IBS has a significant impact on her ability to undertake day to day activities, specifically an impact on her going to the toilet which can take her significantly longer than would otherwise be required. In addition, when her symptoms are severe, the frequency with which she needs to take a toilet break also interrupts other activities as observed by the respondent and therefore impacts on her ability to undertake a range of dayto-day activities including normal work activities. Specifically, I find that her IBS interferes with her ability to travel and to socialise as she needs to “toilet map” as she may need toilet facilities at unpredictable intervals and on short notice. I also accept that social interaction is limited by concerns over restrictions on her diet and potential social embarrassment if she suffers an episode of flatulence or diarrhoea. I also find that her IBS interferes with her sleep on occasion and that this is an on-going issue. For the avoidance of doubt, I have not taken into account any of the symptoms which have arisen or worsened after this claim was issued such as the incontinence referred to in October 2021 (nor in relation to the other conditions).[28]I note that a variety of treatments including drugs and diet have been tried with varying degrees of success but conclude that these do not effectively ameliorate her symptoms, so I do not need to consider the effect of the treatments further. Chronic back and neck pain[29]The claimant has consistently stated that her back and neck pain began in 2014 and referred to this fact on her pre-employment health questionnaire and in her appointments with the respondent’s occupational health advisors. The medical evidence is consistent with the claimant’s account including the letter of 11 January 2022 which refers to back and neck pain starting in 2014 and to referrals to the pain clinic.[30]I accept the claimant’s evidence that she is unable to sit and/or stand for such periods of time as are required for normal day to day activities without considerable discomfort and/or pain and I note the reasonable adjustments recommended by the respondent’s occupational health advisors to provide an orthopaedic chair and regular breaks/micro breaks in order to assist with managing this condition. I accept the claimant’s evidence that the fact that she self-manages this condition does not meant that the impact on her ability to undertake day to day activities such as to sit (which she is required to do for work), go shopping or stand to prepare food is minor or trivial. I also accept the claimant’s evidence that this condition also interferes with her sleep and that this condition, the pain she suffered as a consequence, and the impact on her ability to sit and sleep, continued throughout the relevant period. RSI[31]The claimant referred to a previous incident of RSI in November/December 2017 in her disclosure to the respondent in her pre-employment checks. The letter of 11 January 2022 from Forest Road Group Practice refers to the RSI occurring in 2018 but other medical records confirm that the claimant’s account that she suffered from RSI in late 2017 is correct but that the first time she spoke to her GP about the condition was on 12 March 2018. However, I find that when the claimant started her employment with the respondent in September 2019 it was not an ongoing condition and there were no grounds for concluding that it was likely to recur. It did however recur in September 2020 when she had a period of 7 days absence from 17 September 2020 on account of RSI in her elbows and a number of adjustments including an ergonomic mouse and keyboard were advised by occupational health in addition to the orthopaedic chair which it had previously been advised should be provided and reallocation of some of her typing to colleagues.[32]The claimant’s impact statement does not deal expressly with the effect of the RSI on her ability to undertake day to day activities between September 2020 and March 2021 but focuses on her on-going symptoms and the exacerbation of her symptoms and the impact on her work caused by the respondent’s failure to implement the majority of the recommendations made by occupational health in October 2020. I have not taken into account evidence about new or worsening symptoms after 21 March 2021.[33]In her oral evidence the claimant referred to both the impact of her RSI on her work, referring to difficulties with typing and moving a mouse, as well as to general difficulties with lifting and gripping which affected her ability to clean, wash and dress. In relation to how the condition was affecting her in 2020 the claimant stated specifically she experienced pain in her forearms, biceps and triceps. The impact was significant enough for her to be signed off work from 17 September and for the recommendations of provision of the provision of an elbow support, an ergonomic mouse and keyboard and the chair to be made. The contemporaneous report made by Mr Ciccone also refers to difficulties with shopping. I am therefore satisfied that between 17 September 2020 and 2 October 2020 the impact on the claimant’s ability to undertake general work-related activities and accepting her oral evidence, general activities at home that required lifting and gripping was impacted to a significant extent.
Relevant Law
[34]Having established the above facts, I now apply the law.[35]The claimant alleges discrimination because of her disabilities under the provisions of the Equality Act 2010 (“the EqA”). The claimant complains that the respondent has contravened a provision of part 5 (work) of the EqA. The claimant alleges direct disability discrimination, indirect disability discrimination, discrimination arising from a disability, failure by the respondent to comply with its duty to make adjustments, harassment, and victimisation.[36]The protected characteristic relied upon is disability, as set out in section 6 and schedule 1 of the EqA which provides that a person P has a disability if she has a physical or mental impairment that has a substantial and long-term adverse effect on P’s ability to carry out normal day to day activities. A substantial adverse effect is one that is more than minor or trivial (section 212 EqA), and a long-term effect is one that has lasted or is likely to last for at least 12 months or is likely to last the rest of the life of the person.[37]Schedule 1 par 2(2) EqA provides that “if an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur”.[38]Likely should be interpreted as meaning “it could well happen” rather than it is more probable than not that it will happen (SCA Packaging Limited v Boyle (2009) ICR 1056).[39]The burden of proof is on the claimant to show that she is a disabled person in accordance with that definition.[40]I am also mindful of the “Guidance on matters to be taken into account in determining questions relating to the definition of disability (2011) (Guidance) and the Equality and Human Rights Commission (EHRC) Code of Practice on Employment (2015) and specifically Appendix 1(Code).[41]The meaning of “normal Day-to-day activities” is not set out in statute but helpful guidance is included in both the Guidance and the Code. Paragraph D3 of the Guidance states that: 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,[42]The Code states that day to day activities include – but are not limited to – activities such as walking, driving, using public transport, cooking, eating, lifting and carrying everyday objects, typing, writing (and taking exams), going to the toilet, talking, listening to conversations or music, reading, taking part in normal social interaction or forming social relationships, nourishing and caring for one’s self. Normal day-to-day activities also encompass the activities which are relevant to working life.[43]The Guidance contains also contains examples of adverse effects on day-today activities and counsel for the respondent has drawn to my attention the example contained at par D22 of a young woman with colitis (an inflammatory bowel disease) but asks me to bear in mind the fact that the examples in Guidance are illustrative only and further relies on Vicary and the case of Leonard v Southern Derbyshire Chamber of Commerce 2001 IRLR 19 in support of this contention.[44]Counsel for the respondent had also referred me to the cases of; Goodwin v Patent Office 1999 ICR 302 in which the EAT provided guidance on the definition of disability; the case of J v DLA Piper UK LLP 2010 ICR 1052 in relation to good practice in stating conclusions separately on the questions of impairment and adverse effect and in the case of adverse effect the question of substantiality and long term effect arising under it; Ahmed v Metroline Travel Limited UKEAT/0400/10 in relation to not undertaking a balancing exercise of what a person can do against what they can’t do; Paterson v Commissioner of Police of the Metropolis [2007] ICR 1522 on whether the claimant is affected to more than a minor or trivial extent in carrying out normal day to day activities; Vicary v British Telecommunications plc [1999] IRLR 680 and Elliot v Dorset County Council UKEAT/0197/20/LA in relation to applying the statutory definition of “substantial”.[45]In relation to the effect of medical treatment counsel has also referred me to the cases of Abadeh v British Telecom plc [2001] IRLR 23; Woodrup v London Borough of Southwark 2003 IRLR 111 CA and the case of Taylor v Ladbrokes Betting and Gaming Ltd 2017 IRLR 312.[46]The material time for considering whether the impairment had (or was likely to have) a long term effect is the date of the alleged discriminatory act (All Answers Ltd v W [2021] EWCA Civ 606, CA) and events occurring after the date of the alleged discriminatory act should not be taken into account in considering if the effect of the impairment was long term.[47]I take the cases referred to above as guidance, and not in substitution for the provisions of the relevant statutes.[48]Applying the above principles, I consider each of the conditions relied on by the claimant in turn. IBS[49]The respondent concedes that the claimant suffered from IBS from 2017 and throughout her employment and I have found that she suffered significant symptoms (diarrhoea with intermittent constipation, pain, nausea, vomiting, reflux, bloating, flatulence and tenesmus) as testified to by the claimant and as is evidenced by the claimant’s medical records and I therefore conclude that this is a physical impairment.[50]I am further satisfied that the impact of these symptoms was substantial and had an adverse effect on her ability to undertake day to activities including going to the toilet (both in terms of the time required on each occasion and the frequency of the requirement to use the toilet), travelling on public transport, socialising over food (and socialising more generally) and sleeping.[51]It is evident from the claimant’s evidence, the medical records and the respondent’s own occupational health reports, (and is not disputed by the respondent), that the claimant’s IBS had lasted for over 12 months when she started employment and continued throughout her employment and as it is life-long condition, will continue.[52]The respondent is seeking to argue that whilst it is accepted that the claimant has IBS, the effects of the condition do not satisfy the statutory test. I have some concerns that the respondent felt it appropriate to pursue this line of argument in the light of the evidence before me, including their own occupational health reports which from the commencement of the claimant’s employment (although not entirely consistently and with customary caveats that this is properly a legal matter) identified that the claimant was likely to be protected by the Equality Act 2010 and recommended that adjustments were made, including access to welfare facilities, which I conclude mean toilet facilities. I further conclude that the ongoing symptoms and the substantial adverse effect of the condition on the claimant’s day-to-day activities fluctuated in severity but were at any point during the relevant time period from the start of her employment until the time she submitted her claim either present or likely to recur and were intrusive and difficult for the claimant to deal with.[53]I therefore further conclude that the claimant was a disabled person and the respondent did know, (and if I am wrong on this point that it could it reasonably have been expected to know) that the claimant was disabled from September 2019 until March 2021 by reason of her IBS including at the time of each of the acts of the alleged discrimination. Chronic back and neck pain[54]The respondent also concedes that the claimant suffers from chronic back and neck pain but again contends that this did not have a substantial and long term adverse effect on the claimant’s ability to carry out normal day-today activities.[55]I have found that the chronic back and neck pain started in 2014 and continued throughout her employment with the respondent. I therefore conclude on the basis of the medical evidence before me, the claimant’s evidence and the respondent’s occupational health reports that the claimant suffered from this condition which constituted a physical impairment at all relevant times.[56]I further conclude that the condition impacted on the claimant’s ability to undertake day to day activities as she was unable to sit for extended periods of time without considerable discomfort and/or pain and that this condition interfered with her sleep throughout the relevant period. The pre-employment health checks recommended breaks and micro-breaks (amongst other adjustments) and although the adjustment is not expressly linked to the relevant medical condition, I conclude that the breaks and the micro breaks are recommended in order to alleviate her back and neck pain which I have accepted continued throughout her employment. I also note the recommendation to provide an orthopaedic chair and a change in task every 30 minutes when the claimant had her appointment with the respondent’s back care specialist in October 2019 and that the provision of the orthopaedic chair was still outstanding as at 2 October 2020.[57]I do not accept the respondent’s contention that because there is a gap in the medical evidence that this proves there was no adverse impact and accept the claimant’s contention that she did have on-going symptoms throughout this period which impacted her ability to sit, stand and sleep in a way that was more than minor or trivial and conclude that the claimant’s back and neck pain has a substantial and adverse effect on her ability to undertake day to day activities.[58]I therefore conclude that the claimant was a disabled person, and the respondent did know, (and if I am wrong on this point that it could it reasonably have been expected to know) that the claimant was disabled from September 2019 until March 2021 by reason of her chronic back and neck pain including at the time of each of the acts of the alleged discrimination. RSI[59]The respondent concedes that the claimant has suffered from RSI but submits that as the claimant had not suffered RSI between late 2017/early 2018 until it recurred in September/October 2020, this condition had not lasted, nor was it reasonable to expect it to last for 12 months as at the date of the alleged discriminatory acts, nor was it reasonable to expect it to recur. The respondent further submits that at the relevant time, which in their submission was at best from late September/early October 2020 when the condition first recurred, until March 2021 when the claim was issued, the affects of that condition were only minor or trivial in that the claimant only required one week’s absence to recover. The claimant submits that the condition was a recurring one and that she was disabled by reason of her RSI at all material times.[60]Given that the claimant had previously only suffered one episode of RSI in late 2017/early 208 and did not suggest on joining the respondent that she had suffered from this condition since then, I am satisfied that the claimant was not disabled by reason of her RSI and that respondent did not know nor could it reasonably have been expected to know that the claimant was disabled by reason of her RSI when she started work with the respondent or at any time until her symptoms recurred in late September 2020.[61]I have however found that symptoms did return in September 2020, and I conclude that the claimant did have a physical impairment at this time. From that time onwards, I am further satisfied that although her symptoms initially improved with rest, they remained present and required a number of adjustments to be managed effectively, including an elbow support and an ergonomic keyboard and mouse.[62]In terms of the impact of this condition on her ability to undertake day to day activities, these activities can include general work requirements as confirmed in both the Code and the Guidance. I have found that the claimant’s RSI impacted on her ability to type and use a mouse and also more generally to lift and grip which affected her ability to undertake ordinary daily tasks such as dressing, washing and cleaning and I therefore conclude that the claimant’s RSI had an adverse impact on her ability to carry out normal day-to-day activities which was more than minor and trivial at the time that she was symptomatic. I do not take into account the claimant’s evidence about symptoms which arose after the 21 March 2021.[63]In considering the period of time from late September 2020 to 21 March 2021, I am mindful of Schedule 1 par 2(2) EqA and the provisions set out par 13 of appendix 1 to the Code which state that the substantial effect is treated as continuing if it is likely to recur; that is, if it might well recur, applying the test in SCA Packaging that this means “it could well happen”. I conclude that having had two episodes of RSI, both in her elbows, and the recommendation that adjustments were made including provision of the mouse and keyboard and reallocation of typing duties, that the respondent could reasonably have been expected to know that the RSI could well recur, and I therefore conclude that it should be treated as a long-term physical impairment which had a substantial effect on her ability to undertake the identified day to day activities from that date.[64]In light of the medical evidence known to them at that time, I conclude that the claimant was a disabled person, and the respondent could reasonably have been expected to know that the claimant was disabled from 17 September 2020 until March 2021 by reason of her RSI including at the time of each of the subsequent acts of the alleged discrimination.[65]In summary, I conclude that the claimant was disabled: 65.1. by reason of IBS from 9 September 2019 to 21 March 2021; 65.2. by reason of her chronic back and neck pain from 9 September 2019 to 21 March 2021; and 65.3. by reason of her RSI from 17 September 2020 to 21 March 2021.[66]For the purposes of Rule 62(5) of the Employment Tribunals Rules of Procedure 2013, the issues which the tribunal determined are at paragraphs 2 to 7; the findings of fact made in relation to those issues are at paragraphs 11 to 33; a concise identification of the relevant law is at paragraphs 35 to 47; and how that law has been applied to those findings in order to decide the issues is at paragraphs 48 to 64.