Ms Scarrott v Chelsea and Westminster Hospital: 2300213/2020

EMPLOYMENT TRIBUNALS

Case No 2300213/2020

Between

Ms ScarrottClaimant

Chelsea and Westminster HospitalRespondent

Before

Employment Judge Mason

Miss A Scott (instructed by Counsel) for claimant

Mr S Sudra (instructed by Counsel) for respondent

Date 3 November 2020

JUDGMENT

The following claims are dismissed on withdrawal:(i) direct disability discrimination;

(ii) breach of contract (notice pay); and

(iii) less favourable treatment contrary to the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. ….…………………………… Employment Judge Mason 4 August 2020 Case Number: 2300213/2020 EMPLOYMENT TRIBUNALS BETWEEN Claimant and Respondent Mrs C Scarrott Chelsea and Westminster Hospital NHS Foundation Trust ON: 29 October 2020 BEFORE: Employment Judge K Bryant QC Appearances: For the Claimant: Miss A Scott (Counsel) For the Respondent: Mr S Sudra (Counsel) RESERVED JUDGMENT ON A PRELIMINARY HEARING

[1]The Claimant was disabled within the meaning of the Equality Act 2010 by reason of impairment to her right elbow from 26 October 2018 and remained so disabled at all times thereafter.

[2]As accepted by the Respondent, the Claimant was also disabled within the meaning of the Equality Act 2010 by reason of chronic back pain at all times material to this case.

REASONS

[3]This case was listed for a Preliminary Hearing (‘PH’) (which was held by CVP) to determine whether the Claimant was disabled at any material time within the meaning of the Equality Act 2010 (‘EqA’).

[4]There was a previous PH by telephone on 4 August 2020. Various directions were made on that occasion, including listing the case for a final Case Number: 2300213/2020 2 merits hearing (8 days from 9 August 2021) and setting a timetable for the steps needed to prepare for that final hearing, all of which directions remain in force.

[5]The tribunal notes that the parties mentioned that some of the directions made at the previous PH may not have been complied with (although the parties’ representatives were not sure), including those as to service of a Schedule of Loss and for Further Particulars, but given the lack of clarity as to what, if anything, was outstanding the tribunal left the parties to resolve any outstanding matters and if necessary they can make a written application to the tribunal in the usual way.

[6]The tribunal also notes that the parties have agreed a List of Issues which appears on its face (at pages 70-79 of the PH bundle) to have been first produced by the Respondent and then amended by the Claimant. The parties’ representatives confirmed at this PH that the list is now agreed in that form and it is the claims as particularised in that document that will be heard by the tribunal at the final hearing of this case: the live claims are for:6.1 Discrimination arising from disability within the meaning of EqA, s15;

6.2 Failure to make reasonable adjustments within the meaning of EqA, ss20 and 21;

6.3 Victimisation within the meaning of EqA, s27;

6.4 Direct age discrimination within the meaning of EqA, s13;

6.5 Indirect age discrimination within the meaning of EqA, s19;

6.6 Unfair dismissal within the meaning of section 98 of the Employment Rights Act 1996.

[7]The Claimant confirmed at the start of the PH that she now relies only on two impairments as giving rise to disability within the meaning of the EqA, namely chronic lower back pain, which is a long-standing condition, and an impairment to her right elbow, which first arose in around April 2018 and which the Claimant says gave rise to a disability from 4 July 2018 onwards. The Respondent confirmed at the start of the PH that it accepts that the Claimant was disabled at all material times by reason of chronic back pain. It does not, however, accept that she was disabled at any time by reason of an impairment to her right elbow; that was therefore the remaining live issue to be determined at this PH.

Evidence

[8]The tribunal was provided with a PH bundle (128 pages excluding index), a supplementary bundle (113 pages excluding index) and two further documents to be added to the supplementary bundle at pages 114 and 115-116.

[9]The tribunal heard evidence from the Claimant by reference to a witness statement which was included in the PH bundle and she was cross-examined by the Respondent’s representative and also asked a number of questions by the tribunal. The tribunal also read a number of documents in the bundles, mostly medical records and reports. Case Number: 2300213/2020 3

[10]The Claimant has a long-standing back condition for which she had been receiving injections every 12 to 18 months for some years. Following one such injection in 2018 she had side-effects which resulted in her having to take around two weeks off work. She was referred to Occupational Health (‘OH’) and was seen by Dr Khan, OH Physician, on 4 July 2018.

[11]The Claimant had also started to experience pain in her right elbow in around April 2018. Dr Khan examined the elbow when he saw her on 4 July 2018 and gave a tentative diagnosis of tennis elbow. He referred her for physiotherapy on the basis that the elbow condition was more of a priority than the back because the latter was ‘very much long term’ and so could be addressed later. The necessary implication of this was that Dr Khan anticipated that the elbow condition would resolve following physiotherapy. This is consistent with the remainder of his report which includes a discussion of likely long term issues arising from the back condition but there is no suggestion at that time that her elbow problem was likely to be long term.

[12]The Claimant’s elbow pain became worse after she was asked to cover reception duties from 4 July 2018, which by coincidence was the day on which she was seen by OH. The Claimant continued to cover reception duties until 26 July 2018 when she was signed off work by her GP. The Claimant remained off sick from 26 July 2018 until her eventual dismissal with effect from 4 September 2019.

[13]The tribunal has seen a copy of GP records which note the following:13.1 The Claimant saw her GP on 25 July 2018 and she was signed off work. The diagnosis in the records is given as ‘Tennis Elbow’ and it was noted that she was awaiting physiotherapy.

13.2 The Claimant was seen by a physiotherapist on 17 August 2018. It was noted that she had right posterior elbow pain which had started 4 months earlier and which the Claimant had assumed would go away but it had ‘Steadily worsened’.

13.3 The Claimant saw her GP again on 24 August 2018 who again recorded a diagnosis of tennis elbow and this time also wrote ‘severe’ and the same was recorded following further appointments with her GP on 18 September and 16 October 2018.

13.4 The GP records provided to the tribunal in the PH bundle do not go past mid October 2018; there are more in the supplementary bundle but these were not referred to in evidence or submissions and so are not addressed further here.

[14]The Claimant was seen again by OH, this time Dr Maqsood, Consultant Physician in Occupational Medicine, on 26 October 2018. He noted that she had been on long term sick leave with a diagnosis of tennis elbow, that she was still in significant pain and that treatment had been of limited benefit. He also noted that her sleep was disturbed and that she may wake up with pain. Case Number: 2300213/2020 4

[15]The Claimant was seen by a Consultant Orthopaedic Surgeon, Mr Nathan, on 21 February 2019. He reported significant pain with local tenderness. He gave her an injection and exercises for her to do. The injection did not result in any significant improvement in the Claimant’s symptoms.

[16]The tribunal has been provided with an expert medical report dated 21 March 2019 and prepared by Dr Shah, who appears from his qualifications to be a GP, following an examination of the Claimant on the same date. The report confirms that on examination the elbow was tender and movements were painful. Dr Shah also noted that lateral epicondylitis (ie tennis elbow) ‘can take a while to recover provided the underlying cause has been removed’ and that ‘Exercises, physiotherapy and local steroid injection usually help to improve painful symptoms’. He said that if additional physiotherapy, refraining from repetitive movements involving the right elbow, and possibly another steroid injection were effective then he would anticipate a full recovery over the following 6 to 9 months.

[17]Shortly after the examination by Dr Shah, the Musculoskeletal Physiotherapist who had been treating the Claimant reported on 29 March 2019 that her symptoms were still ongoing and that the treatment given to her had not made any significant impact on her pain.

[18]The Claimant was seen again by OH (Dr Maqsood) on 30 May 2019. He reported no improvement in her symptoms with significant pain and discomfort in her right elbow. He said that he was unable to predict when she would be able to return to work and that this depended on her ability to access successful treatment.

[19]Mr Nathan saw the Claimant again on 4 July 2019. She had had an ultrasound scan of her right elbow and treatment by ‘dry needling’ but although this had given reasonably good pain relief for 2 or 3 days the pain had then returned. It was agreed that she would undergo surgery to release the common extensor. Mr Nathan said at the time that he could not guarantee success but the success rate was usually around 80-90%.

[20]The operation took place on 29 July 2019. The Claimant was seen by Mr Jadhav, Registrar in Trauma and Orthopaedics, on 12 September 2019 who reported that her elbow symptoms were around 30% of their pre-operation level at that time, although on testing he reported that there was a good range of movement with no elbow pain. He said that he had reassured her that this suggested that the symptoms of tennis elbow had been ‘taken care of’.

[21]Dr Shah produced an addendum to his expert report dated 22 October 2019. It does not seem that he had re-examined the Claimant for the purposes of this addendum, but he had been provided with a number of the documents produced by her treating physicians. He noted that whilst on most occasions those who suffer from tennis elbow make a complete recovery, a small proportion require surgical intervention. Case Number: 2300213/2020 5

[22]In light of all the evidence heard and read, the tribunal finds that from the start of her sick absence up until she had recovered from the operation to her elbow which took place on 29 July 2019, the level of pain in the Claimant’s right elbow remained at much the same intensity, although there were short intermittent periods of reduced pain.

[23]The Claimant said in evidence that the level of pain that she experienced following the start of her sick absence had in fact been present from 7 or 8 July 2018, ie within a few days of starting to cover reception duties. However, the tribunal notes that in her witness statement the Claimant said (at ¶4.1) that after she had started to cover reception duties the pain in her right elbow worsened to a point where she had no option but to be signed off by her GP. The tribunal also notes the reference to the pain having steadily worsened when she saw a physiotherapist in mid-August 2018. The tribunal finds, based on the totality of the evidence, that the pain in the Claimant’s elbow gradually worsened from 4 to 26 July 2018 such that it had only reached the level of intensity experienced from the start of her sick absence by 26 July 2018 and not earlier.

[24]From late July 2018 the tribunal accepts that the Claimant had significant difficulty with a number of day-to-day activities including dressing herself, washing her hair, brushing her teeth, getting in and out of the bath, housework, cooking, dog walking, shopping and playing with her grandchildren. She had significant difficulty driving and using public transport. The tribunal notes that the Claimant is right-handed.

[25]The tribunal also accepts that the Claimant’s current level of symptoms causes her much the same level of difficulty with day-to-day activities as described immediately above.

[26]What is less clear is the extent to which her ability to undertake day-to-day activities was affected once she had recovered from the operation that took place in late July 2019 and before her symptoms returned around 3 months later. The tribunal notes, in this context, that the period during which the Claimant’s symptoms were about 70% improved is likely to have included the date of her dismissal on 4 September 2019. The Claimant said in evidence that although she accepted that her symptoms improved for a period, her ability to carry out the various activities identified above had remained much the same throughout. The tribunal finds that it is more likely than not that there was some temporary improvement in the Claimant’s ability to carry out those activities following the operation on 29 July 2019 but that she continued to have significant difficulty with those activities throughout the period from the operation until the time that her symptoms worsened again some 3 months or so later.

Applicable law

[27]The tribunal has reminded itself of the statutory provisions of most relevance here. In particular, section 6(1) of the EqA provides that: Case Number: 2300213/2020 6 ‘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. … (4) This Act … applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly … – (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had a disability; … …’

[28]Schedule 1 to the EqA contains supplementary provisions concerning disability, including the following: ‘… 2. Long-term effects(1) The effect of an impairment is long-term if– (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, (c) it is likely to last for the rest of the life of the person affected.

(2) 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. …’

[29]The tribunal has also reminded itself of the provisions of relevant guidance, including the Guidance on matters to be taken into account in determining questions relating to the definition of disability (2011) (‘the 2011 Guidance’) and in the various authorities referred to in the Claimant’s written submissions, which it is not necessary to set out in detail here. The tribunal also notes that, in addition to the Claimant’s written submissions, both parties made oral submissions which the tribunal has taken into account when reaching its decision in this matter.

Discussion and conclusions

[30]The definition of disability in the EqA involves consideration of a number of questions which the tribunal will address in turn below. The tribunal will also need to consider, if those questions are answered in the Claimant’s favour, the time at which each of those questions could be so answered. In a case such as this, where a number of allegations of disability discrimination are raised some of which are said to relate only to the alleged elbow-related disability, it will be necessary to establish when (if at all) the Claimant fell within the EqA definition of disability in respect of her elbow condition.

[31]It is clear, and was not disputed by the Respondent, that the Claimant suffered from a physical impairment relating to her right elbow. The Case Number: 2300213/2020 7 Respondent has said that there was no definitive diagnosis of tennis elbow when the Claimant was first seen by OH on 4 July 2018 but, in the tribunal’s judgment, there does not need to be a definitive, or indeed any, medical diagnosis before something can amount to a physical impairment. The Claimant was suffering from a physical impairment relating to her right elbow from some time in April 2018 and has continued so to suffer to date.

[32]The next questions are whether the impairment in question had an adverse effect on the Claimant’s ability to carry out normal day-to-day activities and, if so, whether that effect was substantial. The tribunal has already made findings above in relation to the adverse effect of her elbow symptoms on the Claimant’s ability to carry out a number of activities. Those activities were, in the tribunal’s judgment, clearly normal day-to-day activities and the adverse effect of her elbow condition was, and continues to be, substantial.

[33]The question of when there was first a substantial adverse effect caused by the Claimant’s elbow condition and whether that effect became non-substantial for any period is more difficult to answer. It is clear, the tribunal finds, that the substantial adverse effect continued at least from the time the Claimant started sick absence on 26 July 2018 until her symptoms temporarily improved some time after the elbow operation on 29 July 2019 but before the date of her dismissal on 4 September 2019.

[34]The tribunal has already found that the level of symptoms and of consequent inability suffered by the Claimant from the start of her sick absence was not present before the start of that absence. However, the tribunal also finds that the pain from her elbow condition, which worsened during the period from 4 to 26 July 2018, did give rise to a substantial adverse effect on her ability to carry out normal day-to-day activities at some time before 26 July 2018 but not as early as 4 July 2018. However, it is not necessary to determine precisely when between those two dates the adverse effect became substantial because of the tribunal’s conclusions on the ‘long term’ question discussed below.

[35]With regard to the period of improved symptoms after the elbow operation in late July 2019, the tribunal has found that there remained a significant effect on the Claimant’s ability to carry out normal day-to-day activities, even during the temporary period of improved symptoms. The tribunal notes that substantial in this context means (EqA, s212) ‘more than minor or trivial’, which definition the tribunal finds was satisfied throughout the period from the elbow operation in July 2019 onwards.

[36]The next question is whether the substantial adverse effect, which the tribunal has found started some time between 4 and 26 July 2018 and continued at all times thereafter, was long term and, if so, when it became long term.

[37]The tribunal notes the definition of long term in Schedule 1 to the EqA as set out above. Clearly, by late July 2019 the substantial adverse effect of the Claimant’s elbow condition had lasted for more than 12 months and so was long term (within the EqA definition) before the time of her dismissal. Case Number: 2300213/2020 8

[38]The effect had not lasted for at least 12 months before July 2019 but the Claimant relies on paragraph 2(1)(b) of Schedule 1 to the EqA and says that it was likely to last for at least 12 months at an earlier time; on the Claimant’s case in closing submissions it was said to have been long term from as early as 7 or 8 July 2018 but, she says, on any view from 26 July 2018.

[39]As is made clear in the 2011 Guidance (see ¶C3, amended from the previous version in light of the judgment of the House of Lords in Boyle v SCA Packaging Ltd

[2009] UKHL 37

[2009] ICR 1056

) ‘likely’ in this context means ‘could well happen’ which is a lower hurdle than the balance of probabilities.

[40]The question, in essence, is when it would first have been said that the Claimant’s elbow condition and the substantial adverse effect to which it gave rise could well continue for at least 12 months. There is no clear evidence to establish the answer to this question and so, whilst recognising that it is for the Claimant to establish disability, the tribunal has done the best it can with the evidence presented.

[41]The tribunal finds that it would not have been said as at 4 July 2018 or in the period shortly thereafter that the elbow condition or its effects could well last for more than 12 months. The best evidence for this comes from the report following the Claimant’s examination by OH on 4 July 2018 which anticipated that it would not be a long term problem. There is, in effect, no evidence to suggest that anyone would have said at that time that the elbow problem and its effects could well last for at least 12 months.

[42]By 21 March 2019, when the Claimant was examined by Dr Shah, he anticipated that even with appropriate treatment a full recovery would take a further 6 to 9 months. The elbow problem, and the substantive adverse effect to which it gave rise, had already lasted for around 8 months by then, and the tribunal finds that this evidence establishes that by 21 March 2019 the problem and consequent substantial adverse effect could well have continued for at least 12 months.

[43]The final question is, then, whether it would have been said that the elbow condition and its consequences could well have continued for at least 12 months at any time before 21 March 2019. The tribunal notes that by the time of re-examination by OH on 26 October 2018 it was reported that the Claimant was still in significant pain and that treatment had been of limited benefit. Taking into account the totality of the evidence presented to it, the tribunal finds that it is at that time, ie 26 October 2018, that it would first have been said that the elbow condition and its substantial adverse effect could well last for at least 12 months.

[44]In the circumstances, the tribunal finds that the Claimant was disabled within the meaning of the EqA by reason of her elbow condition from 26 October 2018 and that she remained so disabled at all times thereafter. Case Number: 2300213/2020 9