Mr J Hodson v Hughes TV and Audio Ltd: 3306083/2024
EMPLOYMENT TRIBUNALS
Case No 3306083/2024
Between
Mr J HodsonClaimantHughes TV and Audio LtdRespondent
Before
Employment Judge HendersonMr D Hobbs (instructed by Counsel) for respondentDate 7 July 2025
REASONS
[1]This was a preliminary hearing (PH) listed to determine Strike out and Deposit Order applications by the respondent and also to determine the question of whether the claimant was a disabled person within section 6 Equality Act 2010 at the times relevant to his claim (namely 12 to 16 February 2024).[2]The claimant accepted that his claim was for disability discrimination and that if he was unable to show that he was a disabled person, his claims could not continue. Given this acknowledgement it was agreed with the parties that the disability issue should be heard first and if the claimant could establish he was a disabled person, we could then go on to consider the Strike Out applications. Conduct of the Hearing[3]The hearing was conducted as a video hearing. The parties had agreed a PH Bundle (262 pages). This bundle included the claimant’s Impact Statement and other statements relied on by him beginning at pages 59; 113 and 194 and the claimant’s medical evidence. The claimant had also submitted some other documents separately including a rebuttal to the respondent’s written skeleton argument/submissions. Such documents were considered insofar as they were relevant to the issue of disability.[4]I explained the process of giving evidence to the Tribunal. The claimant adopted the three statements (listed above) on Oath and was crossexamined by Mr Hobbs and asked questions by me. He was allowed an opportunity for re-examination.[5]I checked with the claimant what reasonable adjustments he would need for the PH. The claimant said there were no specific adjustments other than regular breaks and that he may need some time to consider his answers if he was asked questions in quick succession. I told him that he should ask for time if he needed it and during the PH I offered the claimant regular breaks (some of which were taken).[6]The respondent provided written submissions (essentially on the Strike Out/Deposit Order applications). The submission on the disability issue was brief and no legal authorities were cited.[7]The parties concluded their submissions at 12.50pm and I returned to give my decision with oral reasons at 2.30pm. The Issue and Findings of Fact[8]The claimant said he was familiar with the wording of the test under section 6 of the Equality Act.[9]This is that in determining whether a person has a disability the Tribunal must consider: — Whether the person has a physical or mental impairment; — Whether the impairment affects the person's ability to carry out normal day-to-day activities; — The effect on such activities must be 'substantial'; — The effects must be 'long term'.[10]The medical condition relied on by the claimant for the purposes of the current claim was migraines. The claimant explained that he had been formally diagnosed with ADHD on 8 March 202, though he had originally raised his concern over mental health problems with may be associated with that condition in February 2022.[11]It was accepted that the claimant has suffered from migraines since he was a teenager. Therefore, I accept that there is a physical impairment.[12]The claimant’s impact statements (especially original statement at p59) described the impact on his normal day to day activities. It was accepted that as described, the effects were adverse and substantial. Mr Hobbs did not cross examine the claimant on the account of his symptoms.[13]However, I note that the original statement is couched in the present tense and did not give any indication of the timing of such attacks/symptoms, other than to say that the migraines have been ongoing since 2001. There was no reference to the impact on the claimant over the relevant period in or around February 2024.[14]I then need to consider whether the effects were long-term and whether the claimant had the disability as at 12-16 February 2024 when the alleged discriminatory acts occurred.[15]Mr Hobbs cross examined the claimant in detail about his GP records (pages 207-210). In summary, the claimant’s evidence was that he had tried over several years to visit his GP for conventional treatment for his migraines, which did not work. He “self-medicated” using cannabis which did alleviate his symptoms/pain relief, and this led to long gaps in GP visits: 8 years from 2008-16 and then from 2016 – 2021.[16]I asked the claimant why he had returned to the GP after the long gaps if his “self-medication” of cannabis was alleviating his condition. He said that this was because of the “socio-economic” impact of his cannabis use. He had lost his driving licence because of this and had come under pressure to stop his catering course. He kept hoping that the GP may come up with a new prescription drug which may work, but this had not happened. The claimant accepted that the GP would not recommend or condone his cannabis use.[17]There were no further GP visits concerning his migraine after April 2022. There was letter dated 27 March 2025 (page 211) from the GP surgery produced at the claimant’s request. This confirmed the claimant had been diagnosed with Migraines since 2001 and Migraine with Aura since 2008. He had trialled various prescription drugs, but these had little effect on managing his migraines. The letter noted that claimant now used cannabis regularly to manage his migraines, but it was noted that “there is no record of this treatment (cannabis) being recommended or agreed by the medical professionals he has seen over the years for the treatment of his migraines)”.[18]In April 2023 the claimant went to a private clinic, Sapphire (later Curaleaf) and obtained a private prescription for cannabis which he said lessened the frequency of the migraine attacks (to about 5 a year) and also reduced the severity of the attacks when they came. There were letters from this clinic relating to appointments in April, June and October 2023 and in March 2024.[19]The claimant was asked in cross examination when his last migraine attack had occurred before he commenced employment in February 2024. He said this had been over Christmas 2023/ early January 2024. This was a pressurised time and expenses over this period meant he could not afford to pay for the private prescription, so this affected his symptoms. The claimant did not say that he was regularly experiencing attacks in the lead up to February 2024.[20]The claimant’s evidence initially suggested that the December 2023 was not a serious attack. However, later when answering questions from me as to when he had last experienced a serious attack the claimant said this had been in Christmas 2024. When it was pointed out that this was after his dismissal and so was irrelevant, the claimant then said that he had attacks in both Christmas 2023 and 2024 and both were serious attacks with the symptoms as described in his impact statement. I note that this was not consistent with the answer he gave in cross-examination.[21]I did not find the claimant’s evidence on this point to be credible, The claimant appeared to alter/exaggerate his evidence as regards the attack in December 2023, which would be in his self-interest. I also note that the claimant did not make any mention of having attacks or serious attacks in or around February 2024 in his oral or written evidence.
Conclusions
[22]When considering the definition of disability under Schedule 1 of the EqA 201 the word 'likely' occurs in different contexts:(a) whether an impairment is 'long term', ie if it is 'likely' to last for 12 months (Sch 1 para 2(1));(b) whether an impairment is likely to recur under para 2(2) (Sch 1 para 2(2));(c) when considering effects of treatment under para 6(1), where it is asked whether an impairment would be 'likely to have a substantial adverse effect' but for measures being taken to treat/correct it (Sch 1 para 5(1));[23]In the Guidance under the EqA 2010 on matters to be taken into account in determining questions relating to the definition of disability, paragraph C3 states: “In this context, “likely”, should be interpreted as meaning that it could well happen, rather than it is more probable than not that it will happen.”[24]If an impairment is being treated or corrected, the impairment is deemed to have the effect it is likely to have had without the measures in question. EqA 2010 Sch 1 para 5 says that 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 measures are being taken to treat or correct it and, but for such measures, the impairment would be likely to have that effect. Para 5(2) indicates that 'measures' includes medical treatment and the use of a prosthesis or other aid.[25]Mr Hobbs said that no objective medical evidence had been produced to support the claimant’s assertion that his use of cannabis alleviated his migraine condition. The claimant accepted he had not produced any such evidence as he had not been aware it was needed for today’s hearing. He pointed out that Sapphire Clinics engaged medical professionals, and they had prescribed cannabis for him so this should be regarded as proof of such medical evidence.[26]Reviewing the relevant letters from Sapphire (and then Curaleaf); - The first letter concerning the appointment on 4 April 2023 (page 142) from Dr M Weatherall – this records the claimant’s assessment that smoking cannabis helps his migraines (which are recorded as being “only a few per year”). There is no medical assessment of the effect of cannabis on the migraines. - The second letter concerning the June 2023 appointment (page 144) is signed by Carl Holvey, there is no medical qualification cited and no reference to an assessment by the clinic that cannabis is proven to alleviate the claimant’s condition - The third letter concerning an appointment in October 2023 is signed Dr Hazlett. He notes a discussion with the claimant about terpenes and other drugs. He refers to medical cannabis as “an unlicensed medication”. Again, there is no formal medical assessment that cannabis is a medically acknowledged treatment for migraines.[27]On that basis, I find that the claimant has not provided any objective medical evidence from which I can I find that his cannabis use is a treatment or measure which alleviates the substantial adverse effect of his condition – other than his own observation of this effect. Given, the inconsistency of the claimant’s evidence as regards the effect of not taking cannabis over the Christmas periods of 2023 and 2024 and my finding on his credibility, I am not able to rely on the claimant’s oral evidence alone on this matter.[28]As such, I should not disregard the use of the cannabis as regards the effect of the condition. I have to consider the impact of the claimant’s condition (as at February 2024) with the effect of his cannabis use.[29]As a result, I find that the claimant has not shown that his migraine condition had a substantial adverse effect on his day-to-day activities as at February 2024. He was controlling that condition with cannabis at that time, which control should not be disregarded.[30]I also note the claimant’s own assessment of his migraine condition as at 12 February 2024 (page 162). He says that since being prescribed “medical cannabis” a year and a half before that date, he had not had any migraine attacks. There is no mention of the attack at Christmas 2023.[31]According, I find that the claimant has not shown (to the requisite standard of proof) that he was a disabled person as at February 2024. His disability discrimination claims cannot continue and are dismissed. Therefore, I did not need to consider the respondent’s applications on strike out/deposit orders.[32]As the claimant was a litigant in person and as the decision is based on some technical points, I suggested that he may wish to take some legal advice. I also pointed out to him the Tribunal Rules on the reconsideration process and explained that a Tribunal decision could be appealed on the basis that the law had been incorrectly applied. The respondent did raise some objection to my comments, but I noted that it was only fair to make the claimant aware of his options as he was unrepresented. I was certainly not recommending him to challenge my decision. Approved by:
Conclusions
[1]The Judgment of EJ Henderson signed on 7 July 2025 (that the claimant was not a disabled person within the meaning of section 6 of the Equality Act 2010) is revoked.[2]The Tribunal finds that the claimant is a disabled person within the meaning of section 6 Equality Act 2010 at the times relevant to his claim (namely 12-16 February 2024).[3]The claims for disability discrimination can continue. A separate Case Management Order has been made in this regard.[4]The reasons for this decision were given orally at the end of the Reconsideration Hearing. The claimant requested written reasons, and these are set out below.
Conclusions
[1]This is a reconsideration application of my Judgment at a Preliminary Hearing on 2 July 2025 that the claimant was not a disabled person within the meaning of section 6 of the Equality Act 2010 (EQA) at the times relevant to his claim (namely 12-16 February 2024). Accordingly, the claimant could not continue with his claims for direct discrimination and harassment under the EQA based on his alleged disability, namely migraines.[2]Reasons were given orally on 2 July and Written Reasons were provided on 7 July but were not sent to the parties until 30 July 2025. Conduct of the Hearing[3]The parties provided an Agreed Bundle of 340 pages; and each party provided written submissions. The respondent also provided an authorities’ bundle. I heard submissions from both parties .[4]The claimant had made two applications for reconsideration: the first application (pages 253-268) was dated 21 July 2025 and attached A) an Occupation Health Report relating to the claimants ADHD condition (which is clearly not relevant to today’s reconsideration application) and B) a letter dated 16 July 2025 from Dr Weatherall, Consultant Neurologist. The claimant said that the documents provided “further professional medical insight relevant to his condition” ie that of migraines.[5]The second application (pages 306-317) was dated 11 August 2025. The claimant asked that this be treated as his substantive application, replacing any earlier version. This attached a more detailed document, much of which is more relevant to an appeal than a reconsideration. The claimant also referred to several medical studies on Cannabis & Migraine but accepted that he had not provided copies of these studies either to the respondent or the Tribunal and that the relevant content of these studies did not appear in the Agreed Bundle provided by the parties.[6]Mr Perry submitted that given the second application, I should disregard the first application and the letter of 16 July 2025 from Dr Weatherall. The claimant at first appeared to agree with this, but on reflection submitted that I should take account of Dr Weatherall’s letter. Given the fact that the claimant is a litigant in person and that the issues of the definition of disability and the principles of reconsideration are complex, I have accepted his altered position, and I take account of both applications for reconsideration. Principles of Reconsideration[7]The Rules on reconsideration are set out at 68-71 of the Employment Tribunal Procedure Rules 2024.[8]Both parties accepted that the only ground on which a judgment can be reconsidered is “the interests of justice”. The claimant’s submissions were understandably often confused in that whilst he accepted this as a principle, he often strayed into issues of error of law, which is relevant to an appeal and not a reconsideration.[9]Therefore, the key question for a Tribunal to determine is where the interests of justice lie. This requires consideration of the position of both parties, which includes (from the respondent’s point of view) the public interest that there should be finality of litigation. (Phipps v Priory Education Services Limited [2023] EWCA Civ 652).[10]The parties also accepted the principle that reconsideration is not a quasiappeal or a re-hearing. Also, the reconsideration is not an opportunity for the Tribunal to review the original decision and amend that decision if it has changed its mind. (Ebury Partners UK Ltd v Davis [2023] EAT 40.)[11]Mr Perry raised the issue of hearing new evidence and referred to the case of Ladd v Marshall [1954] 3 All ER 745, since confirmed in (Outasight VB Ltd v Brown UKEAT/0253/14 (21 November 2014, unreported) at [40]).[12]The EAT has held that the Ladd v Marshall test (in conjunction with the overriding objective) continues to apply where it is sought to persuade a tribunal, in the interests of justice, to reconsider its judgment on the basis of new evidence. The Ladd v Marshall test has three limbs:(a) that the evidence could not have been obtained with reasonable diligence for use at the original hearing;(b) that it is relevant and would probably have had an important influence on the hearing; and(c) that it is apparently credible.[13]Whilst these are the principles that are normally to be applied, Judge Eady QC in Outasight acknowledged (at [50]) that there might be cases where the interests of justice would permit fresh evidence to be adduced notwithstanding that the principles were not strictly met. This in fact had been recognised in the old cases of Flint v Eastern Electricity Board [1975] IRLR 277, QBD, and General Council of British Shipping v Deria [1985] ICR 198, EAT, where it was held that an application for a review which failed under the specific ground relating to new evidence would require 'some additional circumstance' or 'some mitigating factor' relating to the failure to produce the evidence at the original hearing if it were to succeed under the general interests of justice ground in the previous rules.[14]In this case, the relevant “new” evidence in the letter of Dr Weatherall of 16 July 2025. Consideration of new evidence[15]As acknowledged by Mr Perry in his submissions, the key basis of the Judgment in July 2025 related to the consideration of EQA Schedule 1 para 5 which says that 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 measures are being taken to treat or correct it and,but for such measures, the impairment would be likely to have that effect.[16]It was accepted in the Judgment that the claimant had a physical impairment (migraines), and this was a long-term condition. It was also accepted (as the respondent’s counsel had not cross examined the claimant on this point in his impact statements) that the effects of that impairment on the claimant’s normal day to day activities were adverse and substantial.[17]At the July hearing, the respondent’s counsel, Mr Hobbs stressed the need for objective medical evidence to support the claimant’s assertion that his use of cannabis alleviated his migraine condition. The claimant accepted at the July hearing that he had not produced any such evidence, as he said he had not been aware that it was needed.[18]In my Reasons (at paragraph 26) I summarised the evidence produced by the claimant from Sapphire clinic (now Curaleaf) about his cannabis use and concluded (at that stage) that there was “no formal medical assessment that cannabis is a medically acknowledged treatment for migraines” and that it was a successful treatment for the claimant’s condition.[19]On that basis, I did not (as per Schedule 1 para 5) disregard the claimant’s cannabis use when considering the impact of the claimant’s condition as at February 2024 (the material time of the alleged discrimination).[20]The “new” letter from Dr Weatherall specifically refers to “clinical information” about the claimant’s condition and treatment and notes that the information is provided based on clinical assessment and ongoing treatment under specialist medical supervision.[21]Dr Weatherall also notes that “prior to initiating treatment with medical cannabis Mr Hodson would experience 1 migraine headache per week, known as episodic migraine. Since commencing treatment with medical cannabis, he now only experiences symptoms on a few occasions per year”.[22]If this evidence presented at the July Preliminary Hearing, my decision would have been different, I would have regarded this evidence as the objective medical evidence about cannabis use referred to by Mr Hobbs.[23]Accordingly, I would have disregarded the effect of the cannabis use on the claimant’s condition and so found that the claimant was disabled within section 6 EQA.[24]Therefore, I admit and consider this new evidence following the comments of Judge Eady in Outasight. I find that there are mitigating factors here, namely the fact that the claimant was not aware of what evidence he needed to produce and once he was aware, following the Judgment and Oral reasons given on 2 July 2025, he was able to secure the evidence fairly promptly after that. I am also mindful that the Judgement involved a technical point on the definition of disability, which I acknowledged at the time.[25]I do not believe it would be in the interests of justice to ignore this new evidence. I accept that this is prejudicial to the respondent and the interests of finality of litigation, but in this case I find the interests of justice outweigh that consideration. I also note that there is a pending appeal in the EAT and if that went in the claimant’s favour the respondent would have to deal with such prejudice in any event.
Conclusion
[26]Accordingly, I revoke my original decision and in re-taking the decision, based on the new evidence presented, I find that the claimant is disabled within the meaning of section 6 EQA. His claims for disability discrimination can therefore continue Approved by: