Employment Judge FraneyMr D Sillitoe (instructed by Solicitor) for claimantMs J Davies (instructed by Solicitor) for respondentDate 11 September 2017
JUDGMENT
All complaints under the Equality Act 2010 relying on the protected characteristic of race are dismissed upon withdrawal by the claimant. JUDGMENT[1]The Claimant did not meet the definition of a disabled person set out in the Equality Act 2010 at the relevant time.[2]The claim of harassment related to disability fails and is dismissed.[3]The claim of failure to meet the duty to make reasonable adjustments fails and is dismissed.[4]Written reasons for this Judgment having been requested by the Claimant, these will be issued in due course.
REASONS
[1]Mr Hassanin presented a claim to the Tribunal alleging that he had been discriminated against by reference to his disability and religion. In particular, he said that he had been the subject of disability-related harassment in September to October 2016 and that the Respondent (“the Company”) had failed to meet its duty to make reasonable adjustments on his return to work in February 2017. The Company did not accept that he met the definition of a disabled person at the relevant time, being September 2016 to February 2017, and a Preliminary Hearing was therefore held to decide that issue.[2]Under Section 6 of the Equality Act 2010 (the EqA), a person has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Schedule 1 EqA provides further detail. The effect of an impairment is to be viewed as long-term if it has lasted at least 12 months or is likely to do so. 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 treated as continuing to have that effect if that effect is likely to recur. An impairment is to be viewed as having a substantial adverse effect on a person’s day-to-day activities if it would have that effect if they were not taking measures to treat or correct it. For these purposes, “measures” include medical treatment. In deciding whether a Claimant meets this definition, the Tribunal must take into account the “Guidance on the definition of disability” issued by the Secretary of State (para. 12 of Schedule 1).[3]It is for the person who alleges that they are disabled to establish that they meet the definition on the basis of the evidence before the Tribunal. Mr Hassanin alleged that he was a disabled person from September 2016 onwards as a result of “sciatica”. He relied on an “impact statement” on the effects of his sciatica. He provided no GP records or other medical report on his condition; the only medical evidence he produced on his condition in the relevant period were notes and a discharge summary relating to his overnight admission to hospital in October 2016 with suspected cauda equina. (The Tribunal was provided with no evidence on what cauda equina is.)[4]The only evidence before the Tribunal on the nature of sciatica was a print-out the Company provided of the relevant text from the “NHS Choices” website, a website run by the NHS to give the general public information about the nature of and treatments for health conditions. From this the Tribunal learnt that sciatica is the name given to a cluster of symptoms arising from irritation of the sciatic nerve. In Mr Hassanin’s case the symptoms were pain in his lower back, right hip and leg. The NHS text states that “sciatica usually gets better in 4 to 6 weeks but can sometimes last longer”. It also states that the causes of sciatica include: a slipped disc, when a soft cushion of tissue between the bones in the spine pushes out; spinal stenosis, the narrowing of part of the spine where nerves pass through; spondylolisthesis, where one of the bones in the spine slips out of position; and back injury. The possible treatments include exercises and stretches, painkillers, physiotherapy and psychological support to cope with the pain. Suggested actions to reduce the chances of getting sciatica again are listed as taking regular exercise, using safe lifting techniques, maintaining a good posture when sitting and standing, and avoiding being overweight.[5]Mr Hassanin is a Produce Colleague at the Company’s Fleetwood store. His job includes stocking shelves and so involves bending and lifting and carrying products. He was off work from 31 July until the end of August 2015 with a condition described as “sciatica” and “lower back pain” in his GP’s sick notes, after lifting a bag of onions. He was in significant pain that restricted his mobility and his ability to sleep. He was prescribed painkillers by his GP; the Tribunal was not told what description or strength these were. His GP also advised him to do stretching exercises. He returned to work at the beginning of September but was advised to avoid lifting weights of over 10 kilos and to use a safe lifting technique. He gave no evidence that restricting the weight of the loads he lifted to 10 kilos or below would have a substantial adverse impact on his day-to-day activities.[6]From the end of August 2015 to September 2016 Mr Hassanin had three short periods of between four and seven days when his back pain recurred but he took painkillers and the condition resolved itself. Mr Hassanin gave no detail on what the effect on his day-to-day activities was during this time.[7]On 22 September 2016, Mr Hassanin had a further incidence of sciatica after lifting a sack of potatoes. He gave no details on the weight of the sack or whether he was using a safe lifting technique. He was on sick leave from this date until 7 February 2017 because of back pain. He had substantial pain in his lower back, right buttock and leg that led to him being unable to sleep, sit on the toilet, leave his bed without difficulty or shower or bathe. He was prescribed strong painkillers by his GP, which the Tribunal deduced from the October 2016 hospital admissions prescription were Tramadol and co-codamol. He was admitted to hospital overnight on 31 October 2016 after reporting symptoms of difficulties with urination, to check whether he had cauda equina. The discharge summary recorded that his MRI scan had revealed a “very minor disc bulge at L5-S1, unlikely to be cause of symptoms. No nerve root compression. Bony spinal canal, normal diameter. No cauda equina.” He was prescribed codeine, paracetamol and ibuprofen. By 14 January 2017 he wrote to the Company saying that his pain had improved greatly during the past week and he was withdrawing from his medication. An Occupational Health report for the Company dated 17 January 2017 confirmed that Mr Hassanin had said “he is managing to do his daily activities without issue now, his pain generally gets worse at night”. The report concluded “back pain can recur however if he remains [compliant] with his exercise regime and maintains his manual handling procedures then further absences with this ailment should be reduced.” Mr Hassanin had stopped taking medication for his back completely by the time he returned to work on 7 February 2017.[8]Mr Hassanin clearly had a physical impairment that caused him pain with a substantial adverse effect on his day-to-day activities for around a month in August 2015. He also had a physical impairment that caused him pain with a substantial adverse effect on his day-to-day activities from the end of September 2016 to February 2017. As neither of those periods of substantial adverse effect had lasted continuously for 12 months or more by the relevant period of September 2016 to February 2017, the Tribunal needed to decide whether at any point, and if so when, it became likely that the adverse effects would recur beyond 12 months after the first occurrence in August 2015. A substantial adverse effect is likely to recur if it could well happen again (para. C3 of the Guidance).[9]It was not necessary for the Tribunal to establish the cause of Mr Hassanin’s impairment (Paragraph A3 of the Guidance). Nevertheless, it the Tribunal had known the cause of Mr Hassanin’s impairment, it would have been in a better position to assess whether and when it became likely that the effects of it were likely to recur. (Paragraph A3 acknowledges this when it states that it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects.) The Company’s Occupational Health report dated 17 January 2017 stated that Mr Hassanin had been diagnosed with a slip disc but it is unclear what that statement was based on and there was no other evidence of such a diagnosis before the Tribunal. When the Tribunal asked Mr Hassanin whether he had had a diagnosis of the cause of his sciatica, he said that his GP had diagnosed him with sciatica and told him he had a weak lower back. The hospital discharge summary of 31 October 2016 stated that a “very minor disc bulge” was “unlikely” to be the cause of his symptoms.[10]The Tribunal did not consider itself qualified to decide, without the assistance of medical evidence, that it became the case that Mr Hassanin’s sciatica could well recur at any time in the relevant period. According to the NHS website, one of the possible causes of sciatica is a back injury. Given the circumstances in which they began, both of Mr Hassanin’s bouts of sciatica could have resulted from back injuries. If so, the Tribunal was not satisfied that at the time of the August 2015 episode it was clear that the adverse effects could well recur: Mr Hassanin could avoid a recurrence by taking normal precautions like using safe lifting techniques, avoiding lifting unduly heavy loads, stretching and taking exercise. As Paragraphs B7 and C9 of the Guidance make clear, a person can be expected to adopt reasonable coping or avoidance strategies to prevent the adverse effects of an impairment or their recurrence. Mr Hassanin had a further episode of sciatica in September 2017. This episode could also have been caused by a back injury. The Tribunal was not satisfied, in the absence of medical evidence, that Mr Hassanin had an underlying condition such that the adverse effects could well recur even if Mr Hassanin took normal precautions. (Paragraph C6 of the Guidance gives an analogous example of a woman with two periods of depression, and states that the woman would meet the definition of a disabled person only if there was evidence that the two episodes were part of an underlying condition of depression the effects of which were likely to recur beyond the 12-month period.)[11]In summary, the Tribunal was not satisfied on the evidence with which it was presented that Mr Hassanin had established that he met the definition of a disabled person at the relevant time. His allegations of harassment related to disability and failure to meet the duty to make reasonable adjustments, which both depended upon him being able to establish that he was a disabled person, were therefore dismissed.[1]Under Rule 71 of the Tribunal’s Rules of Procedure, a party may apply for a Judgment to be reconsidered on the ground that it is necessary in the interests of justice to do so. On 2 May 2018 Mr Hassanin applied for the Tribunal to reconsider the Judgment it reached on 21 February 2018. Rule 72(1) provides that an application under Rule 71 shall be considered by an Employment Judge. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application shall be refused. Employment Judge Cox has conducted a preliminary consideration of Mr Hassanin’s application under Rule 72(1).[2]The Judgment of 21 February 2018 was that Mr Hassanin did not meet the definition of a disabled person set out in the Equality Act 2010 at the relevant time. His application for reconsideration of this decision is based on his assertion that four occupational health reports on his case carried out on the Company’s behalf and dated 11 November 2015, 12 September 2016, 1 December 2016 and 23 December 2016 were not disclosed to Mr Hassanin until after the Preliminary Hearing that led to the Judgment.[3]Mr Hassanin says that as he was not, through no fault of his own, able to submit these reports in evidence to the Tribunal at the Preliminary Hearing, it is in the interests of justice for the Judgment to be reconsidered. He says that, if the Tribunal were to take these documents into account, there is a strong chance that it would find that Mr Hassanin met the definition of a disabled person.[4]The Tribunal has assumed for the purposes of this application, but without finding, that the Respondent should have disclosed all four of the occupational health reports before the Preliminary Hearing but did not. The Tribunal also accepts that all four reports are relevant to the issue of whether Mr Hassanin was a disabled person. The Tribunal does not consider, however, that there is any reasonable prospect of its Judgment being varied or revoked as there is no reasonable prospect that the Tribunal would reach a different conclusion even if it were to reconsider the issue in the light of these documents.[5]The specific content upon which Mr Hassanin relies in support of his reconsideration application comprises three statements in the reports of 11 November 2015 and 23 December 2016.[6]The first statement is in the 11 November 2015 report. Under the heading “Management Advice”, it reads: “His back condition may recur form [sic] time to time but with education and support this can be minimised”. It is unclear what is meant by “this”. Taken overall, the Tribunal considers that this sentence is to the same effect as that part of the NHS Choices guidance set out at Paragraph 4 of the Reasons, which the Tribunal took into account when reaching its Judgment.[7]The second statement upon which Mr Hassanin relies appears in the 23 December 2016 report under the heading “OH Opinion” and reads as follows: “In terms of re-occurrences, following a slipped disc there is always a danger of a recurrence of the problem, the most common reason for this is insufficient rehabilitation (physiotherapy)”. In reaching its Judgment, the Tribunal took into account the content of the Occupational Health report of 17 January 2017, which also proceeded on the basis that Mr Hassanin had been diagnosed with a slipped disc and that that had led to his symptoms. The Tribunal noted in its Reasons in relation to the 17 January report that it was unclear what information this statement of Mr Hassanin’s diagnosis was based upon. The Tribunal would have had the same concerns about this reference in the 23 December 2016 report, which also assumes that Mr Hassanin’s condition was referable to a slipped disc, had this report been before the Tribunal. The medical evidence the Tribunal had from those directly treating Mr Hassanin was a hospital discharge summary of 31 October 2016 which stated that Mr Hassanin had a “very minor disc bulge” but this was unlikely to be the cause of his symptoms.[8]Further, whilst the effects of treatment such as physiotherapy should normally be disregarded on assessing the effects of an impairment, Paragraph C11 of the Guidance on the definition of disability states that if treatment is likely to permanently cure a condition, so that a recurrence of the impairment’s effects is unlikely even if there were no further treatment, this should be taken into account when looking at the likelihood of the impairment’s effects recurring. Even if the Tribunal had been presented with reliable evidence that Mr Hassanin’s impairment was caused by a slipped disc, this second statement in the 23 December 2016 report indicates only that there would be a danger of recurrence of his symptoms if he had insufficient physiotherapy. The Occupational Health report of 17 January 2017, which was before the Tribunal, confirmed that Mr Hassanin was receiving weekly physiotherapy, as well as doing daily back strengthening exercises.[9]The third statement upon which Mr Hassanin relies is also in the 23 December 2016 report and appears under the heading “Management Advice”. The relevant paragraph reads: “A true prognosis cannot be given at this time as further investigations and treatment are planned, however a date for this has not been confirmed. Given the history it is likely [Mr Hassanin] will remain symptomatic until further interventions, the business may need to consider options regarding his on-going employment.” It is not entirely clear what the reference “given the history” means. It appears likely to be a reference to the length of time that Mr Hassanin had already been in pain and off work. The reference to “further interventions” appears to relate to statements earlier in the report that Mr Hassanin had been referred for electro conduction nerve studies and, depending on the outcome, might require treatment with physiotherapy. The overall meaning therefore appears to be that Mr Hassanin was likely to continue to be in pain until he had physiotherapy, if that were to be prescribed. This does not, however, affect the basis for the Tribunal’s conclusion that it was not qualified to decide, without the assistance of medical evidence, that it became likely at any point in the relevant period that Mr Hassanin’s sciatica could well recur.[10]For these reasons, Employment Judge Cox does not consider that Mr Hassanin has any reasonable prospect of establishing that the Judgment that he was not a disabled person should be varied or revoked. His application is therefore refused on an initial consideration under Rule 72(1).