Y Hanson v Alder Hey Children’s Hospital NHS Foundation Trust: 2402144/2024
EMPLOYMENT TRIBUNALS
Case No 2402144/2024
Between
Y HansonClaimantAlder Hey Children’s Hospital NHS Foundation TrustRespondent
Before
Employment Judge BattenDate 8 May 2025
REASONS
[1]On 7 April 2024, the claimant presented a claim comprising complaints of race discrimination, disability discrimination and about unpaid wages. The claimant had worked for the respondent from 2000, and makes allegations about events in the period from 2020 to 2023.[2]This preliminary hearing was listed to determine the issue of whether the claimant was a disabled person, within the meaning in section 6 and schedule 1 of the Equality Act 2010 (“EqA”), in respect of any or all of the impairments contended for. The claimant relies upon the impairments of: Neuralgia/facial cellulitis; Hyperacusis/tinnitus; Case No. 2402144/2024 2 Fibromyalgia; and Anxiety/bereavement grief.[3]The bundle at page 191 includes a medical letter which refers to “possible PTSD” but this is not covered in the claimant’s disability impact witness statement and the Tribunal was not tasked to determine disability in relation to PTSD.[4]The respondent’s position is that it is unable to concede that, at the material time of the events in the claim, the claimant was a disabled person within the EqA definition.
Evidence
[5]The Tribunal was provided with a bundle of 233 pages of documentary evidence, which included the claimant’s disability impact witness statement, at pages 52 to 56, and a selection of the claimant’s medical evidence. The Tribunal heard oral evidence from the claimant, who was subject to cross-examination by the respondent.[6]At the end of the evidence from the claimant, both parties made detailed oral submissions.[7]As a reasonable adjustment, a number of breaks were taken in the course of the preliminary hearing which lasted a full day, finishing after 5.00pm.
The applicable law
[8]The applicable law is contained in EqA section 6 and also in schedule 1 to that Act as follows: 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.(2) A reference to a disabled person is to a person who has a disability ... (6) Schedule 1 (disability: supplementary provision) has effect Schedule 1, Part 1, Determination of Disability 2. Long term effects Case No. 2402144/2024 3 (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, or (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.[9]The word “likely” in paragraph 2 of Schedule 1 EqA means “could well happen” rather than “probable” or “more likely than not”: SCA Packaging Ltd v Equality and Human Rights Commission [2009] IRLR 746, and paragraph C3 of the ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ 2011 (“the 2011 Guidance”) which is produced by the Equality and Human Rights Commission (“EHRC”).[10]Guidance is given on the meaning of normal day-to-day activities in section D of the 2011 Guidance. Paragraph D3 says: “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.” Conclusions (including where appropriate any findings of fact)[11]The Tribunal has considered the evidence in relation to the applicable law to determine the preliminary issue, by dealing with the impairments in turn, as follows. Cellulitis and neuralgia[12]The claimant told the Tribunal that she began to suffer from these conditions after a negligent medical procedure carried out in 2017. The claimant confirmed in her evidence that she had experienced a flare-up on around 6 to 8 occasions in the last 8 years but was unable to say when those flare-ups had taken place. The claimant had not disclosed any medical evidence to support her contention as to Case No. 2402144/2024 4 these conditions. Rather, the claimant said she was “managing it” and also that she had been to her GP. However, there is absolutely nothing in the claimant’s GP records to show any such referral or attendance. The claimant said she was prescribed antibiotics for these conditions. Being prescription medications, the Tribunal considered that it would reasonably expect to find a list of such prescription medications within the GP records but could find no such record of the prescription of antibiotics. It may be that such records exist somewhere else. However, for the purposes of this preliminary hearing, the claimant relied on those medical records which appear in the bundle.[13]When challenged about the absence of evidence of going to her GP about cellulitis and neuralgia, the claimant said that she went to walk-in surgeries instead. The Tribunal here took account of the fact that walk-in surgeries are part of the NHS and therefore a record of any visit would ordinarily appear in the claimant’s centralised record of NHS treatments. In any event, if these conditions had displayed any degree of severity or longevity, the Tribunal considered that the claimant would have gone to her GP at some point but there was no evidence that she had done so nor is it recorded that she ever mentioned such to her GP in passing.[14]At page 120 of the bundle is a letter, dated 19 November 2018, from a Dr Tsang to the claimant’s GP, which refers to “previous right facial cellulitis” and previous “left trigeminal neuralgia and this has now settled”. It does not suggest any ongoing issues. The claimant also described pain and swelling in her nose and referred the Tribunal to evidence of that in 2017. However, there was no evidence that this continued to or did affect the claimant’s day-to-day activities even if it had recurred, of which there was no evidence.[15]At page 108 of the bundle, a medical record dated 14 June 2018 contains an entry to the effect that the neuralgia had “eased off” and that the claimant was “not keen to take meds for it”. The Tribunal took this as an indication that the neuralgia did not, on a balance of probabilities have a substantial effect on the claimant at the material time.[16]In respect of cellulitis, the only evidence before the Tribunal was the claimant’s word that it was continuing, which was contradicted by the medical documents. The claimant’s disability impact statement mentions going shopping and does not suggest that she has moderated her lifestyle in any way as a result; for example, by avoiding large crowds or being unable to go out or unable to work. Likewise, nausea and vomiting are also mentioned by the claimant but there is nothing about that anywhere in the medical records. Anywhere. In the bundle, at page 232, is a travel insurance document, dated 26 December 2021, which the claimant herself filled out. Therein, the claimant states that she is not being treated for cellulitis. Case No. 2402144/2024 5[17]In light of the evidence, or lack of such, the Tribunal concluded that the claimant had not demonstrated that cellulitis and neuralgia had a substantial long-term adverse effect on her ability to undertake day-to-day activities at the material time. Tinnitus and hyperacusis[18]The claimant’s evidence to the preliminary hearing was that she reported one incident of tinnitus/hyperacusis during the material time. On page 114 of the bundle, there is a letter, dated 4 October 2018, from a consultant, Mr A Panarese, to the claimant’s GP, which confirms that the claimant’s hearing was found to be normal following a range of hearing tests that day, including having tested for loud noises.[19]Subsequent documents do mention hyperacusis which the Tribunal understood to be a condition characterised by a reduced tolerance to everyday sounds, making them seem uncomfortably loud, or even painful. However, from reading the documents, the Tribunal considered that, where hyperacusis was mentioned, it was recorded because the claimant had told the treating physician at the time that hyperacusis was what she had. Where the claimant did not mention it, the documents make no mention of it. For example, on pages 191 to 192 of the bundle, Mr Tsang’s letter, dated 18 March 2025, makes no mention of hyperacusis. In evidence, the claimant said that she could wear personal headphones, and that she did not have difficulty with conversations or verbal interactions as a result. There was therefore a paucity of evidence of either tinnitus or hyperacusis affecting the claimant in any way.[20]In light of the above, the Tribunal considered that the claimant had not demonstrated that cellulitis and neuralgia had a substantial long-term adverse effect on her ability to undertake day-to-day activities at the material time. In reaching this conclusion, the Tribunal had regard to the 2011 Guidance which contains an example, at section D20, of when tinnitus may constitute a disability as a result of environmental effects, of which the claimant’s evidence came nowhere near meeting. Fibromyalgia[21]In contrast to the preceding conditions, there was ample evidence of the claimant’s fibromyalgia at the material time.[22]On 18 March 2025, Mr Tsang wrote a letter to the claimant’s GP about the claimant’s state of health and impairments. The letter was prepared for these proceedings. In the letter, Mr Tsang refers to a diagnosis of fibromyalgia. In the claimant’s insurance document, which she filled out in 2021, and which appears in the bundle at page 232, the claimant states, “my symptoms are all related to the fibromyalgia” and, on pages 186 and 187 of the bundle, is an equal Case No. 2402144/2024 6 opportunities monitoring form, which the claimant filled out on a date in 2023 and in which she declared to the respondent that she was disabled because of fibromyalgia. Interestingly, the claimant made no mention in that form of any cellulitis, neuralgia, tinnitus or hyperacusis.[23]There is a letter dated 16 November 2018, in the bundle at page 120, from Mr Tsang to the claimant’s GP, which does not include fibromyalgia in the list of diagnoses but it identifies symptoms which are consistent with fibromyalgia. By 2021, when the claimant makes a declaration for insurance, that is what she understood her condition to be, including significant tiredness, widespread aching of her muscles and joints and cognitive delay. The Tribunal accepted the evidence that fibromyalgia is a fluctuating condition and found that the claimant adapted to it. In those circumstances, the Tribunal concluded that the claimant’s fibromyalgia constitutes a disability in accordance with EqA at the material time. Anxiety[24]The Tribunal considered it to be clear from the evidence before it, that the claimant suffers from anxiety. In addition, the claimant contended that she suffered ‘bereavement anxiety’. The Tribunal accepted that what happened to the claimant was a terrible thing, something a person does not get over and something that one has to learn to cope with for the rest of one’s life. However, the claimant brought no evidence of how specifically ‘bereavement anxiety’ manifested itself or affected the claimant, nor any evidence to show an effect from which the Tribunal might find it satisfied the EqA definition of disability.[25]Nevertheless, the Tribunal did find that the claimant had counselling through the Alder Centre and that she was on medication including anti-depressants to calm her down. In July 2022, Occupational Health had recommended a stress risk assessment be carried out because of how the claimant presented at her consultation. In addition, there is a Psychiatric report from Dr Farooq, in the bundle at pages 82-107, which evidences the impact on the claimant of her anxiety. Dr Farroq’s report does not mention panic attacks, albeit that such are described in the claimant’s disability impact statement. On page 98 of the bundle, in his report at paragraph 13.1.1, Dr Farooq advises sessions of psychotherapy and suggests that he expects a recovery in 6 to 12 months. However, the claimant did not appear to be better and the Tribunal found that the medical records disclosed are consistent with the fact that the claimant has not recovered, and that counselling has continued.[26]The Tribunal found that the respondent was at all times aware of the claimant’s continuing anxiety, through the Occupational Health reports, and by virtue of knowledge of the medication that the claimant has taken over a significant period of time. In this regard, the Tribunal took into account the deduced effects of such medication and concluded that, without her counselling and without that Case No. 2402144/2024 7 medication, the claimant would otherwise be a highly-agitated and anxious individual to the extent that amounts to a disability under EqA. Disabilities found[27]In light of the above conclusions, the Tribunal found that the claimant was a disabled person at the material time by reason of fibromyalgia and anxiety, but not a disabled person at the material time by reason of cellulitis, neuralgia, tinnitus or hyperacusis. Approved by: Employment Judge Batten 15 October 2025
The applicable law
[1]The claimant was a disabled person at the material time by reason of fibromyalgia and anxiety; and[2]The claimant was not a disabled person at the material time by reason of cellulitis, neuralgia, tinnitus or hyperacusis.[3]The claim shall proceed to a case management hearing listed on 20 August 2025 at 10:00 am.