Miss S Dwyer v Foundation 92: 2402416/2024 and Others
EMPLOYMENT TRIBUNALS
Case No 2402416/2024, 2402472/2024
Between
Miss S DwyerClaimantFoundation 92Respondent
Before
Employment Judge ParkinIn person for claimantDate 6 July 2025
JUDGMENT
[1]The claimant was not a disabled person within section 6 of the Equality Act 2010 at the relevant time (2 January 2024 to 8 March 2024).[2]Accordingly, the claimant’s complaints of disability discrimination and harassment are dismissed for want of jurisdiction and her claim will proceed to final hearing on the remaining complaints only.
REASONS
[1]The claimant presented her first claim on 20 April 2024 claiming race and disability harassment and discrimination, breach of contract, holiday pay and monetary claims and her second claim on 25 April 2024 making similar claims. The respondent presented its responses denying all those claims and seeking to counterclaim on 6 August 2024. Case management[2]There was a case management preliminary hearing before Employment Judge Phil Allen on 4 November 2024, when the final hearing on 23-26 September 2025 was listed. The issues arising from the claims were well summarised in EJ Allen’s Case Management Order. The Preliminary Hearing[3]Additionally, this preliminary hearing was listed to determine the disability issue, namely whether the claimant was disabled at the relevant time 2 January to 8 March 2024 by reason of her condition of lower respiratory chest tract infection. While the respondent had provided a bundle of documents of 187 pages shortly before the first day of hearing, that was not provided to the claimant in its final form. Concerned that documents relating to her medical condition were being omitted by the respondent, the claimant provided her own supplementary bundle of documents (SB1-147) on the day before the hearing.[4]The claimant had provided an impact statement but it only became clear during her oral evidence on the first day that she had misunderstood the case management orders and had sought to include medical evidence limited to the relevant time (i.e. the final two months of her employment) rather than fuller information about later in 2024 and into 2025 which she strongly contended fully demonstrated that her chest infection and respiratory condition continued, with ongoing prescriptions of medication and an inhaler, such that it could be concluded she was already disabled by March 2024. This was relevant to the long-term element of the disability definition, the element disputed by the respondent and upon which it put the claimant to proof.[5]In these circumstances, having regard to the overriding objective, there was no alternative but to adjourn the preliminary hearing part-heard to enable the claimant to disclose fuller medical evidence about the extent of her condition and symptoms and the investigation of and treatment for them. The adjourned hearing then needed to be postponed again since the claimant had not fully provided her medical evidence in time ahead of the initial date of 21 May 2025.
The evidence
[6]For the second day of hearing, the respondent provided a consolidated and updated bundle (B1-349), which I used except when it was necessary to view the 10 January 2024 sick note/statement of fitness to work included in the claimant’s original Supplementary Bundle. The claimant was further cross-examined and concluded her oral evidence on the second day.[7]I took account of the claimant’s impact statement provided on the 15 January 2025 and her oral evidence, most of which I accepted as accurate and reliable. I did not accept her oral evidence that the original sick note (or statement of fitness for work) dated 10 January 2024 did not have “will” scored out and therefore did not state that the GP would not need to assess the claimant again at the end of the period of unfitness. I studied carefully the claimant’s original Supplementary Bundle provided immediately before the hearing on 17 April 2025 and was satisfied that that the document copied into her bundle also had the scoring out. However, nothing much turned upon this since I did not put great weight in the fact that her sick notes included the words: “I will not need to assess your fitness for work again at the end of this period” when the evidence clearly showed there was a further assessment, in person or by telephone assessment, at the end of this period. The key facts The claimant was born on 20 December 1990.[9]She commenced employment with the respondent in October 2023.[10]There was no evidence of any previous medical history of respiratory, asthmatic or lung and chest problems prior to her lower respiratory tract infection (LRTI) which developed in early January 2024.[11]When seen by her GP on 10 January 2024, she gave a history of 10 days fever, sore throat with dry cough and body aches, some diarrhoea and sickness” (B194). She was declared unfit for work between 8 and 18 January 2024 (B142).[12]There was a second sick note following a telephone assessment on 18 January 2024 (B144). The claimant was declared unfit for work due to LRTI from 18 to 24 January 2024.[13]She requested an extension to the sick note on 31 January 2024. The GP tried to telephone the claimant without success (B194) but nonetheless provided a new sick note declaring her unfit from 24 January to 2 February 2024 (B152), again diagnosing LRTI.[14]The claimant notified further days of sickness in February 2024 again because of chest infection, coughs and phlegm, on 14-15 February, 22-23 February, and 26 February 2024 and then on 1, 3 and 5 March 2024.[15]On 6 March 2024 the claimant was still unwell and on 7 March 2024 attended the GP surgery again (B189-190) when again a respiratory infection was diagnosed. This time, the antibiotic Clarithromycin 500mg was prescribed with her sick note then running from 6 to 17 March 2024.[16]There is then a 6-month break in the medical evidence before were further attendances at her GP surgery in September, October, November and December 2024 and also in January 2025. On 18 September 2024, she was given self-care advice on managing a viral Upper Respiratory Tract Infection (URTI), after complaining of problems with her chest and a cough. On 9 October 2024 and again on 25 November 2024, there were references to previous pneumonia in the GP records. On 25 October 2024 it was recorded that the claimant had experienced intermittent symptoms for the last year (B209-210).[17]The claimant has been referred for chest X-rays and blood tests all to assess further and diagnose her respiratory difficulties. More antibiotics (Doxycyclin and Clarithromycin again) have been prescribed and in January 2025 the claimant was prescribed an inhaler and tent to assist the efficacy of the inhaler and a further different inhaler in May 2025 (B208-209). The parties’ submissions[18]The respondent cited Banaszczyk v Bookers Ltd [206] IRLR 273. In relation to the effect of a condition or impairment and contended the claimant did not fall within the definition at Section 6 and schedule 1 of the Equality Act 2010. Her condition started only in January 2024; she saw her GP and was assessed on 10 January 2024 when the chest was declared as clear and she was only signed off as unfit for work for 12 days. There was then no physical examination until the start of March 2024 when her employment ended. The GP stated that he did not need to assess the claimant again; this was therefore not a long-term condition that needed to be revisited but one expected to have gone away after treatment. The circumstances at the relevant time showed only a chest infection which would normally clear up after a week or two with antibiotics. The relevant time was only two to three months not 12 months and even if the claimant's chest condition lasted 12 months, that was not within the relevant time.[19]The claimant referred to schedule 1 of the 2010 Act, contending that the long-term element was met if the impairment was likely to last for 12 months. She stressed that a LRTI infection could indeed amount to disability and was more than just a chest infection. Her LRTI continued and became worse and resulted in respiratory disability. The condition required ongoing treatment and had affected her every day; she was struggling intensely during the final months of her employment with her chest and breathing. She relied upon later GP records, in particular 25 October 2024 where due to the longevity of her cough there was a likelihood of post-viral cough and possible asthma, 25 November 2024 where a chesty cough and problems from earlier pneumonia and her struggling throughout the year with LRTI needing prescriptions were recorded, and at 31 January 2025 recording that her cough had remained intermittently throughout the year. In January 2024, she had been extremely ill with her chest with a cough which would not stop and was struggling on daily with intense fatigue. Her respiratory disability was arising at the time of her employment and already likely to last more than 12 months. The Law: Disability[20]Section 6 of the Equality Act 2010 states:(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 a reference to a person who has a disability.(3) In relation to the protected characteristic of disability— (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability… (6) Schedule 1 (disability: supplementary provision) has effect. The interpretation provisions at Section 212(1) include: “substantial means more than minor or trivial…”.[21]Schedule 1 includes: Part 1 Determination of disability … (2) Long-term effects 2(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… 5(1 )An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a)measures are being taken to treat or correct it, and (b)but for that, it would be likely to have that effect. (2) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid. 5A(1) This paragraph has effect for the purposes of the application to the protected characteristic of disability of— (a) Part 5 (work)… (2) References in the relevant provisions to a person’s ability to carry out normal day-to-day activities are to be taken as including references to the person’s ability to participate fully and effectively in working life on an equal basis with other workers. (3)The “relevant provisions” are— (a)section 6 (disability)…[22]I considered and was assisted by the Secretary of State’s Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability (2011), particularly at A1-A5, B1 and C1-C7 and by the EHRC Equality Act 2010 Statutory Code of Practice at Appendix 1 on the meaning of disability.[23]As set out in the guidance at paragraph C4, it was necessary to consider the claimant's condition at the time of the alleged discrimination, not at the time of this hearing. Accordingly, I needed to be careful when determining whether the claimant’s impairment had a long-term effect at the relevant time, 2 January to 8 March 2024, not to be unduly swayed by the evidence of all that has happened since and is known to me at the time of this hearing. Banaszczyk v Bookers Ltd did not assist me with regard to the long-term element Oo the disability definition; indeed, in that case, the employer had conceded there was a long-term physical impairment.
Conclusion
[24]I found that the claimant’s lower respiratory tract infection (LRTI) was a physical impairment which certainly gave rise to substantial impairment of her ability to carry out day-to-day activities in the early months of 2024. She had symptoms of a cough, fever, sore throat and breathing difficulties with some diarrhoea and sickness initially which meant that she was simply unable to attend work for many days in January 2024, effectively the whole working month, and then for several days in February and into March 2024. However, this was set against the background of her being a young woman in her early 30s with no significant medical history of respiratory, chest or asthmatic problems. Only at the very end of this period, two months on from the claimant’s first attendance before her GP, did the medical practitioner prescribe any medical intervention or treatment, the antibiotic Clarithromycin.[25]Accordingly, the difficult aspect in determining whether the claimant was disabled within the section 6 definition was the long-term element, the only element substantively challenged by the respondent. Whilst the medical evidence she relied upon shows that the condition or impairment did recur later in 2024, in particular in September to December 2024 and with further GP attendances, examinations and investigations in 2025, and it is always tempting to be swayed by what happened subsequently, I return to the position as at 8 March 2024. At that time, the claimant was still suffering from a nasty but apparently temporary chest and respiratory tract infection, with antibiotic intervention just recently prescribed. I conclude that notwithstanding what has happened since there was nothing to show that this was then an impairment which was progressive or recurring such that it was likely to last for more than 12 months. The claimant has not established that she was disabled at the relevant time of the last few months of her employment up to 8 March 2024. In those circumstances, her claims relying upon the protected characteristic of disability are dismissed. Approved by: Employment Judge Parkin 6 July 2025
Conclusion
Conclusion
[1]The claimant made an application to reconsider the Judgment of Employment Judge Parkin (that she did not have a disability at the relevant time). Rule 69 of the Employment Tribunals rules of procedure requires an application to reconsider to be sent to the Tribunal within fourteen days of the date when the written record of the Judgment sought to be reconsidered was sent to the parties. That was not done in this case.[2]The claimant has been provided with the opportunity to provide evidence to support her contention that her application for reconsideration be considered, even though it was not entered within the time required. Following correspondence from the Employment Tribunal, the claimant has provided a statement of fitness for work dated 17 September 2025. That statement records that the claimant was not fit for work for the period from 1 July 2025 to 16 November 2025 due to a persistent cough since January 2024 effecting her chest and asthma, giving her stress and anxiety. That document does not provide evidence that the claimant could not draft and send a reconsideration application to the Tribunal within the time she was required. It evidences that she was not fit for work during the stated period. In fact, the claimant attended a hearing (virtually) on 2 July (during the period covered by the fit note) and represented herself at the hearing. Where she was able to do so and in the light of the limited evidence provided, I have decided not to exercise my discretion to extend the time provided under rule 69. The limited time set down in that rule is there for a good reason and part of the overriding objective is to avoid delay (so far as is compatible with proper consideration of the issues).[3]As a result of that decision, the claimant’s application for reconsideration has been refused. However, I also went on to consider whether I would have decided Case Nos. 2402416/2024 2402477/2024 2407237/2024 that there was a reasonable prospect of the Judgment being varied or revoked, and whether I would have refused the application based on a preliminary consideration as provided in rule 70 of the rules of procedure. I decided that, even had the application been made within the time required, I would not have found that it was necessary in the interests of justice to reconsider the Judgment, based upon the application made by the claimant. There was no reasonable prospect of the original decision being varied or revoked, based upon the reasons given.[4]The Judgment was issued after a hearing conducted over two days, including an adjournment which provided the claimant with a further opportunity to provide any relevant document or medical evidence. The claimant was able to present evidence and argument at the hearing.[5]The application to reconsider primarily appears to rely upon arguments and evidence which were before the Employment Judge who made the decision.[6]The application for reconsideration does not provide any information about events which have occurred since the hearing, or detail that evidence/documents have come to the claimant’s attentions since the hearing. The application appears to be based upon facts and arguments about which the claimant was aware at the time of the hearing.[7]The elements of the application which refer to anxiety or a peanut allergy do not appear to be about the decision which was made. The claimant had neither relied upon anxiety nor a peanut allergy as being the disability which she had at the relevant time (or which was the relevant disability for the claims she was pursuing). She had relied upon lower respiratory chest infection.[8]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (rule 68). The Court of Appeal in Ministry of Justice v Burton [2016] EWCA Civ 714 has emphasised the importance of finality, which militates against the discretion being exercised too readily. In exercising the discretion, I must have regard not only to the interests of the party seeking the reconsideration, but also to the interests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation.[9]In Ebury Partners UK v Davis [2023] IRLR HHJ Shanks said: “The employment tribunal can therefore only reconsider a decision if it is necessary to do so 'in the interests of justice.' A central aspect of the interests of justice is that there should be finality in litigation. It is therefore unusual for a litigant to be allowed a 'second bite of the cherry' and the jurisdiction to reconsider should be exercised with caution. In general, while it may be appropriate to reconsider a decision where there has been some procedural mishap such that a party had been denied a fair and proper opportunity to present his case, the jurisdiction should not be invoked to correct a supposed error made by the ET after the parties have had a fair opportunity to present their cases on the relevant issue. This is particularly the case where the error alleged is one of law which is more appropriately corrected by the EAT.” Case Nos. 2402416/2024 2402477/2024 2407237/2024[10]Rule 70(1) of the rules of procedure empowers me to refuse the application to reconsider based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked. Preliminary consideration under rule 70(1) must be conducted in accordance with the overriding objective which appears in rule 3, namely, to deal with cases fairly and justly. This includes, so far as practicable, saving expense. Achieving finality in litigation is part of a fair and just adjudication.[11]The application for reconsideration was not made within the time required and, even had it been, I would have refused the application under rule 29(2) because there was no reasonable prospect of the Judgment being varied or revoked. Employment Judge Phil Allen 27 October 2025[1]The Judgment made on 2 July 2025 (the First Judgment) was issued after a hearing to determine disability conducted over two days, including an adjournment and a further opportunity to provide any relevant documentation or medical evidence. The claimant was able to present evidence and argument at the hearing.[2]An application to reconsider that decision was made on 15 August 2025. That was not made within the time required by rule 69 of the Employment Tribunals Rules of Procedure.[3]I decided that the application should be should be refused because it was not made within the time required. That was explained in my Judgment made on 27 October 2025 (sent to the parties on 8 December 2025) (the Second Judgment). Importantly, when determining that Judgment, I also considered whether I would have decided that there was a reasonable prospect of the First Judgment being varied or revoked and whether I would have refused the application based upon a preliminary consideration as provided in rule 70 of the Employment Tribunals Rules of Procedure. I decided that I would not have done so. I explained my reasons for doing so in the Second Judgment.[4]The application of 12 December 2025, applies for reconsideration of both the First Judgment and the Second Judgment. Cases Nos. 2402416/2024 2402477/2024 2407237/2024[5]I will not reproduce in the reasons for this Judgment a summary of the law as it applies to reconsideration applications, as I have already set that out in the Second Judgment and I applied the same principles when making this decision. However, I would additionally highlight that rule 70(2) expressly sets out that a circumstance in which a Tribunal may consider that there is no reasonable prospect of a Judgment being varied or revoked is where substantially the same application has already been made and refused (unless there are special reasons).[6]I have already decided that there is no reasonable prospect of the First Judgment being varied or revoked in the Second Judgment. I have considered the new application to reconsider the First Judgment. I note that it provides additional medical evidence which details that the claimant was in no fit state to handle or orchestrate administrative commitments in any way or form as at 25 September 2025. I am concerned about the date of that advice, but in the light of that evidence there could be a reasonable prospect that I would have extended time so that I considered the first application even though it was not entered within the time required. However, I do not consider that there is anything in the second application upon which I find (or would have found) there to be any reasonable prospect that I would decide (or would have decided) that the First Judgment should be varied or revoked based upon the merits of the application. I cannot identify any error of law in the First Judgment, the legal and practical arguments raised now are those which the claimant could have raised at the two-day hearing and are therefore effectively a second bite at the cherry, and the contentions raised are predominantly those of an error of law, which are better addressed by the Employment Appeal Tribunal.[7]Having reached that decision regarding the First Judgment, I then considered the application to reconsider the Second Judgment. As I have already explained, there could have been a reasonable prospect of the part of the Second Judgment which determined that the application to reconsider was not made in the time required being reconsidered, on the basis that I could have exercised my discretion to extend time for the application to be made, in the light of the medical evidence provided with the new application. Had I not gone on in the Second Judgment to also assess the application on its merits, I could have sent a notice to the parties in accordance with rule 70(3). However, in the Second Judgment I did also go on and consider whether there was any reasonable prospect of the First Judgment being varied or revoked based upon the substantive issues raised. I decided that there was not. Nothing in the second application alters that decision. I have therefore decided that there is no reasonable prospect of the Second Judgment being varied or revoked, and therefore the application is refused (under rule 70(2)).[8]In the Employment Tribunal’s letter of 8 December 2025, I invited either party to write to the Tribunal if they believed that a further preliminary hearing (case management) was required to address any outstanding case management issues which the parties cannot resolve between themselves. In her application for reconsideration, the claimant has asked that the Tribunal give any case management directions necessary to secure fairness, including any timely provision of complete bundles in advance of hearings. I have considered that to in practice be a request which should be addressed at a further preliminary hearing (case management). I have therefore asked for a further such hearing to be Cases Nos. 2402416/2024 2402477/2024 2407237/2024 arranged to address that part of the claimant’s application (which is not genuinely an application to reconsider a previous Judgment).[9]I do not find that it is necessary in the interests of justice to reconsider the Judgments, based upon the application made by the claimant. There is no reasonable prospect of the original decisions being varied or revoked, based upon the reasons given. The application for reconsideration is refused.