Mr APG CorreiaClaimantPrimark Stores LtdRespondent
Before
Employment Judge S MooreIn person for claimantMr J Allsop (instructed by counsel) for respondentDate 2 October 2025
JUDGMENT
The Claimant was not a disabled person within the meaning of s. 6 Equality Act 2010 at the time of the matters complained about and accordingly the complaints of disability discrimination are struck out.
REASONS
[1]The Claimant was employed by the Respondent between 21 October 2021 and 3 November 2023 when he was dismissed, the Respondent says, for capability.[2]ACAS conciliation took place between 1 February and 26 February 2024.[3]The claim form was lodged on 1 March 2024 bringing complaints of unfair dismissal, race discrimination and disability discrimination.[4]This was the fourth Preliminary Hearing (PH) in these proceedings, the previous being:4.1 On 23 September 2024 before EJ Othen;4.2 On 19 December 2024 before EJ Russell; and 1 of 54.3 On 11 August 2025 before EJ Hutchings.[5]The Claimant did not attend the first two hearings. The third hearing had to be adjourned because a Tetum interpreter had not been booked for the hearing.[6]At the first PH on 23 September 2024 EJ Othen ordered, amongst other things, that all parties must ensure they are contactable by way of telephone on the morning of the hearing and provide an up-to-date telephone number to the Tribunal.[7]At the second PH on 19 December 2024 the Claimant had not provided up-todate contact information, and the Tribunal was unable to contact him. The Respondent provided a draft list of issues at that hearing but it could not be agreed because the Claimant had not attended. The Claimant was ordered to write to the Tribunal by 13 January 2025 to say if he was actively pursuing his case.[8]The Claimant wrote to the Tribunal on 10 January 2025 to say that he was actively pursuing his case and providing an email address and a telephone number.[9]At the third PH on 11 August 2025 this PH was listed in order to:9.1 Determine whether the Claimant’s physical conditions of wrist pain and wrist swelling (both wrists) are a disability within the meaning of s.6 and schedule 1 of the Equality Act 2010 (EqA);9.2 Finalise the List of Issues, if the Claimant has not confirmed the draft list of issues produced by the Respondent as agreed;9.3 List a Final Hearing; and9.4 Make any Case Management Orders necessary to progress the claim to the Final Hearing.[10]To that purpose EJ Hutchings made the following orders:10.1 By 15 September 2025 the Claimant must write to the Respondent confirming whether or not he agrees the List of Issues;10.2 By 15 September 2025 the Claimant must write to the Respondent with the following information about his wrist condition:10.2.1 How long has he had the wrist condition?10.2.2 A short written statement in which he explains what are/were the effects of his wrist condition on his ability to do day-to-day activities between 4 July 2021 and 3 November 2023, giving clear examples.10.2.3 Give the dates when the effects of the wrist condition started and stopped. If they have not stopped, say how long they are expected to last.10.2.4 If the effects lasted less than 12 months, why does the Claimant say they were long term.10.2.5 Has the Claimant had medical treatment, including medication? If so, what and when? 2 of 510.2.6 What would the effects of the wrist condition have been without any treatment or other measures? The Claimant should give clear day-today examples, if possible.10.2.7 Any other information the Claimant relies on to show they had a disability.10.3 By 15 September 2025 the Claimant must send to the Respondent:10.3.1 Copies of parts of their GP and other medical records (which have not already been provided) that are relevant to whether they had the disability at the time of the events the claim is about.10.3.2 Any other evidence relevant to whether they had the disability at that time.10.4 By 29 September 2025 the Respondent must write to the Tribunal and the Claimant confirming whether or not it accepts the Claimant had a disability and, if so on what dates.10.5 By 29 September 2025 the Respondent must send to the Tribunal and the Claimant a copy of a hearing file.[11]On 22 September 2025 the Respondent informed the Tribunal that the Claimant had not provided the information due to be provided by 15 September 2025. The Respondent stated that it had sent emails to the Claimant on: - 15 September 2025; - 16 September 2025; and - 18 September 2025 but had not received a response.[12]On 26 September 2025 the Respondent sent a further email to the Claimant but did not receive a response.[13]The Respondent subsequently made an application to strike out the claim.[14]On 29 September 2025 the Claimant provided a further copy of a letter dated 19 July 2024 (providing details of what he said happened to him because of his disability) and four pages of medical notes.[15]At the hearing today, the Claimant initially did not attend. When he was telephoned, he said he had connectivity issues. After extensive efforts he did eventually manage to join the hearing.[16]A second problem was that a Tetum interpreter was not available, and I was informed that one could not be made available either now or probably in the future because the language was too obscure. The Claimant was asked whether he spoke any other language but said that he didn’t. Accordingly, the only option was to proceed in English, going slowly and taking as much care as possible to try to ensure the Claimant understood what was being said to him. Conclusions on Disability[17]Despite the previous orders by the Tribunal, the information provided by the Claimant to support his assertion of disability was very limited. 3 of 5[18]There are four pages of doctor’s notes (provided by the Claimant on 29 September 2025) spanning 19 November 2019-8 January 2025 but the only reference to the Claimant’s wrists is an entry at the top of the page under the heading “Active” which is dated 29 April 2022 and simply states “Ganglion of wrist”.[19]There are two fit notes dated 24 July 2023 and 1 August 2023 advising that the Claimant is fit for light duties.[20]The fit note of 24 July 2023 refers to the Claimant having a painful ganglion on both wrists.[21]The fit note of 1 August 2023 refers to the Claimant being able to lift boxes no more than 6kg, being able to assist with loading and unloading and being able to drive.[22]There is no impact statement as such, the closest is a statement from the Claimant dated 1 August 2024 which referred to his two fit notes in July and August 2023 and that he had then told the GP he suffered pain in his wrist when lifting a heavy item and to being at the time of writing (August 2024) a driver of a Counterbalance (forklift truck) but having no pain from that activity.[23]There is no reference to the Claimant ever having taken medication or received treatment for his wrist pain.[24]Section 6 of the Equality Act 2010 provides that a person has a disability if they have a physical or mental impairment and the impairment has a substantial and adverse long-term effect on their ability to carry out normal day to day activities.[25]I am satisfied that the Claimant had at the material time a physical impairment of wrist pain, however I am not satisfied that this had a substantial and adverse long-term effect on his ability to carry out normal day to day activities.[26]Notably despite EJ Hutchinson’s order that the Claimant give clear examples of the effects of his wrist condition he hasn’t done so. Accordingly, the evidence only establishes that in or about July and August 2023 the Claimant was suffering from wrist pain when he lifted heavy items of more than about 6kg.[27]In this respect, Appendix 1 to the Equality and Human Rights Commission (EHRC) Code of Practice on Employment (2011) states that ‘normal day-to-day activities’ are activities that are carried out by most men or women on a fairly regular and frequent basis, and gives examples such as walking, driving, typing and forming social relationships. I am not satisfied that “lifting heavy items” is a normal day to day activity and there is no evidence that the Claimant’s ability to carry out any other activity was affected by his wrist pain. Furthermore, insofar as “lifting” is a normal day to day activity, I am not satisfied that the Claimant’s inability to lift (without pain) items of more than 6kg amounted to a substantial adverse effect on his ability to carry out that activity.[28]Further and in any event, although the Claimant appears also to have had Ganglions on his wrists in April 2022 there is no evidence that they caused him any pain or discomfort at that time. I am therefore not satisfied that any substantial adverse effect on the Claimant’s ability to carry out normal day to day activities during July and August 2023 was long-term within the meaning of para 2 of Schedule 1 to the Equality Act 2010. 4 of 5[29]It follows that the Claimant was not a disabled person within the meaning of s.6 of the Equality Act 2010 at the time of the events complained about and his complaints of disability discrimination must be struck out. Approved By: