Employment Judge Mr J S BurnsMr L Werenowski (instructed by Counsel) for claimantMs J Majithia (instructed by Counsel) for respondentDate 13 December 2024
JUDGMENT
[1]The Claimant at the times relevant to this case was disabled by osteoarthritis of the right knee but not by any other impairments.[2]To the extent necessary the Claimant is given leave without further service to amend his claim to substitute reliance on osteoarthritis for Bakers Cyst as the impairment he relies on for his disability claims.
REASONS
[1]The question for today was whether the Claimant’s claimed impairments of Diabetes Type 2, low intellectual ability and Baker’s Cyst in the right knee, caused him to be disabled for purposes of the Equality Act 2010 at the time relevant to this case, which was the period of his employment up to his dismissal by the Respondent on 13 September 2023 and its dismissal on 27/11/2023 of his appeal against that decision.[2]The Claimant is a 62 year-old Polish male who does not speak English well. Mr Werenowski had asked the Tribunal by email on 12/12/24 to provide an English/Polish interpreter for today’s hearing (as one had been provided at the CMPH before EJ Bedeau on 10/9/24). Unfortunately, the email gave the wrong case number so the request was misfiled and no interpreter was booked. I suggested that we adjourn to try to find an interpreter at short notice, or failing that on another day, but Mr Werenowksi submitted that the Claimant would be unable to give evidence and answer questions under cross-examination properly in any event (even with the assistance of an interpreter) because the Claimant was a vulnerable witness with a low intellectual ability.[3]There was very little or no independent evidence (other than that I refer to below) to support this submission. However, I asked Mr Weronowski what he suggested as a means of making adjustments for the Claimant’s claimed vulnerability and he suggested that any crossexamination should be conducted by the Respondent submitting questions in writing only and in advance and then the Claimant being allowed to answer them in writing only at a later date. That however would involve an adjournment of today’s hearing which he would prefer to avoid. Case No: 3314329 2023 2[4]In the end, both sides representatives agreed that we should proceed today without calling the Claimant to give evidence or be cross-examined and that I should make my decision about his claimed disabilities on the basis of the written evidence to which I was directed in the 988-page bundle, (which included his previous impact statement, his medical notes, and the Claimant’s witness statement), and the written and oral submissions on both sides.[5]It was acknowledged by both sides that(i) the adoption of this procedure today was on a precautionary basis and was not to be taken as evidence of disability (caused by the claimed low intellectual ability) one way or the other;(ii) as there would be no cross-examination I would be able to give less weight to the Claimant’s witness statement than I might have done if he had been cross-examined on it before me and(iii) I would not be able to “assess the Claimant for myself” in determining his claimed low mental ability A summary of the basic applicable law[6]Section 4 Equality Act 2010 (EA) provides that disability is a protected characteristic.[7]Per section 6, a person has a disability if they have a physical or mental impairment which has a substantial (which means “more than minor or trivial” per section 212 and a limitation going beyond the normal differences which may exist between people) and long-term adverse effect on his ability to carry out normal day-to-day activities.[8]In assessing whether there is or would be a substantial effect, one disregards measures such as medical measures which are being used to treat it. (Sch 1 para 5(1) and (2).)[9]A claimant does not have to show why he has an impairment - but merely the fact that he does have one; The question is “Is there something wrong with the claimant?”[10]Normal day-to-day activities are activities such as walking, driving, typing and forming social relationships, but also work activities.[11]The effect is long-term if it has lasted or is likely to last 12 months or for the rest of the person’s life (Sch 1 para 2)[12]Under Section 6(5) EA 2010 The Secretary of State has issued 2011 issued guidance on matters to be taken into account in determining questions relating to the definition of Disability 2011. Diabetes Type 2[13]The Claimants recorded medical history relating to this is as follows:• 9/2/21: Initial consultation logging Type 2 Diabetes; general dietary and lifestyle advice provided.• 8/6/21: Claimant attended diabetic eye screening; results graded as normal.• 24/9/21 : Diabetes referral form submitted. (unclear whether C ever co-operated with this referral)• 12/11/21: "Diabetes Monitoring First Letter" sent requesting annual diabetic review.• 29/12/21: Diabetes hospital appointment; Claimant did not attend (DNA).• 11/7/22: Follow-up appointment; Claimant did not attend (DNA). Case No: 3314329 2023 3• 25/8/22: Second "Diabetes Monitoring First Letter" sent; Claimant did not respond.• 7/11/23: Post-dismissal eye screening; Claimant did not attend (DNA).• 30/10/23: Advised to book diabetic review; Claimant did not do so.• 6/3/24: Blood tests as part of annual review.• 28/3/24: Claimant did not attend scheduled appointment (DNA).• 22/5/24 : Eye screening; claimant did not attend (DNA).[14]The Claimant’s “logging of type 2 diabetes” in February 2021 was not a formal diagnosis but I note the recent GP letter dated 9/12/24 which states that he does have this condition. The available evidence however is that his interaction with medical professionals in relation to it since June 2021 until 2024 was nil as he did not attend any follow up reviews or screening, despite being invited repeatedly to do so. He has never been prescribed or taken any medication for his diabetes.[15]The Claimant states in his witness statement that this condition is controlled by diet alone in that he tries to keep balanced blood sugar levels by not consuming high carbohydrate foods and sweet drinks etc. and for this reason avoids going to restaurants where such food and drink would be provided.[16]The guidance on the definition of disability (2011) provides as follows:- “B7 Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day to day activities. …For example, a person who needs to avoid certain substances because of allergies may find the day-to-day activity of eating substantially affected. Account should be taken of the degree to which a person can reasonably be expected to behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day-to-day activities.”[17]The authority Metroline Travel Ltd v Stoute (Debarred) [2015] IRLR 465, EAT HHJ (paragraphs 5 to 10) Serota QC includes the following: “…..the Claimant had informed Dr Darzy that he had followed a diabetic diet by avoiding, for example, sugary drinks. I am sure that a diabetic diet involves trying to avoid foods with a significant sugar content including sweets, chocolates, fruit juices and what have you. It is the case that someone suffering from Type 2 diabetes who does not properly manage his blood sugar levels might be at risk of suffering a hypoglycaemic attack. The Employment Judge referred to the guidance on the definition of disability, published by HM Government Office for Disability Issues, Equality Act 2010 Guidance at paragraph B12, which provided that an impairment the subject of treatment or correction was to be treated as having a substantial adverse effect if but for the treatment or correction the impairment was likely to have that effect. “Likely” is interpreted as meaning “could well happen” rather than “more likely than not to happen”. It is difficult, in my opinion, to see how a perfectly normal abstention from sugary drinks could be regarded as a medical treatment, and I have not seen anything that suggests there has been any substantial interference with normal day-to-day activities unless one considers abstention from Coca-Cola and fruit juice to be an impairment in ordinary day-to-day activities. I do not regard it as such”. .. Case No: 3314329 2023 4 10. I am, having regard to that, unable to accept that abstention from sugary drinks, as I have already said, constitutes a substantial adverse effect on day-to-day activities caused by the Type 2 diabetes. I am minded to agree with Mr Solomon that the decision of the Employment Tribunal is, in effect, perverse. It would mean that any person suffering from Type 2 diabetes controlled by diet is to be regarded as disabled under the Act. It would also mean that people with other conditions such as nut allergies, intolerance to lactose or what have you would also be regarded as disabled. I agree with Mr Solomon’s submission that Type 2 diabetes per se does not amount to a disability. Mr Solomon submits the argument that Type 2 diabetes does per se amount to a disability within the meaning of the Equality Act 2010 is obviously wrong and I agree. I also agree that the Employment Tribunal applied paragraph B12 of the statutory guidance but did not have regard to B7, which as he points out cross-refer to one another.”[18]In the instant case there is no contemporary evidence that in fact the Claimant did take these dietary steps at the relevant time. Even if he did do so, such adjustments would constitute reasonable behavioural modifications rather than treatment measures, in line with paragraph B7 of the Guidance. As Metroline highlights, reasonable modifications like dietary adjustments do not establish substantial adverse effects unless there is clear evidence of significant impact on day-to-day activities (which is lacking in this case).[19]The Claimant also states that his diabetes required him to urinate frequently (several times an hour) but there is no record of him telling the doctor about this or seeking help for it at the relevant time or at all.[20]While one of the reasons which the Respondent gave for dismissing the Claimant related to the length of his toilet breaks, the Respondent did not identify any frequency of toilet breaks on his part, which would have been a different pattern of behavior.[21]I find that the Claimant did have an impairment (type 2 diabetes) which had lasted at least 12 months by the time of the dismissal, but the Claimant has not proved that it had a substantial adverse effect on his day-to-day activities. Low intellectual ability[22]The Claimant has never been professionally diagnosed as having any mental or intellectual deficit whatsoever. The Claimant did not disclose any learning difficulties during his employment, and there is no evidence in his medical records to support the existence of “low intellectual ability” as it has been referred to in the list of issues for today. The Claimant has neither sought nor received medical treatment for learning difficulties.[23]He has stated in his witness statement “I have always suffered from learning difficulties and will do so until the end of my life.” However, he obviously did not think this in 2012 because he completed a written response on a GP patient questionnaire on 11/4/2012 stating in terms that he did not have any learning disabilities. It was submitted today on his behalf that this answer was given erroneously because of the very learning difficulties which are now claimed on his behalf, or because of his deficient English, but it is not suggested that any of the other answers given on the form by the Claimant were incorrect. Case No: 3314329 2023 5[24]On 12/7/2024 and 30/10/24 the Claimant completed without apparent difficulty on-line GP questionnaires dealing with access to his medical records.[25]The idea that the Claimant has low intellectual ability appears to have originated from Mr L Werenowski and to have been derived from his experience in obtaining instructions from the Claimant after his dismissal and for purposes of his ET claim.[26]That this was not even Mr Werenowski’s immediate view is apparently from the terms of an email which Mr Werenowski settled for the Claimant for purposes of the latter requesting permission to be accompanied by a Polish/English interpreter at the internal appeal against dismissal. This email dated 20/10/23 did not state that the Claimant needed to be accompanied because of any intellectual deficit, but only because “on previous meetings there was some problem with answers translation”.[27]Later on when Mr Wereonwski met the Claimant he concluded that the Claimant was intellectually impaired. EJ Bedeau’s in his case-management summary on 10/9/24 wrote “Mr Werenowski, a direct access Barrister, told me, and I accepted his account, that it was difficult consulting with the claimant given his low intellect and it was a rush to present the form in time…”[28]Mr Werenowski made similar comments to me today - stating a number of times that the Claimants intellectual deficit was “obvious” etc.[29]Mr Werenowski is obviously a man of integrity who is doing his best for the Claimant and I accept that he believes what he says. However, he does not have any particular expertise in assessing mental function and his assertions are no substitute for proper evidence about this.[30]The recent GP letter dated 9/12/24 reads as follows : “Mr Kryk's friends report that they have serious concerrns that he has learning Kryk's report they learning difficulties. They report long-standing difficulties with concentration and memory, which significantly impact his day-today functioning. They report that he gets lost easily and requires accompaniment to unfamiliar places multiple times before feeling confident navigating alone. They report he also requires instructions or information to be repeated several times before fully understanding them. They report he struggles with remembering fully understanding They report he struggles remembering recent events and tends to focus conversations on distant past experiences. …Mr Kryk has not undergone formal assessment for learning difficulties, but his presentation suggests that this may be a factor. A specialist assessment may be beneficial to clarify the extent of his challenges, and the potential support required.’[31]This is nearly all , long after the event, based on what unnamed friends have stated in some unidentified manner. Plainly the GP is unwilling to state positively that the Claimant has low intellectual ability and is of the view that no such finding can be made without a specialist assessment. Case No: 3314329 2023 6[32]Apart from Mr Werenowski, the only other friend who has been identified is Mariusz Chichon, who the Claimant says he has known for years. Mr Chichon however did not attend to give evidence or even produce a witness statement.[33]I do not accept what the Claimant has written in his witness statement about having poor memory, having difficulties understanding theoretical concepts etc. There is no contemporary evidence to support this.[34]If he does have these problems, it is not shown that they are caused by low intellectual ability. They could just as easily have been caused by the quite severe anxiety and depression which (in paragraph 25 of his disability impact statement) the Claimant says he has developed since he was dismissed, causing him to have circular thoughts and poor sleep. It was when he was in this condition that Mr Werenowski first met him.[35]The Claimant has not proved on a balance of probabilities that he has the impairment of low intellectual ability. Baker Cyst (Synovial Cyst) on the right knee.[36]The Claimant’s recorded medical history related to his knee condition is as follows:•17/1/2021: Self-referral for knee pain.•21/1/2021: Analgesia issued; appointment for general health assessment scheduled.•29/1/2021]: Diagnosis of osteoarthritis of the right knee following self- referral. The report (following an X-ray) states “There is complete loss of the lateral joint space and associated subchondral change and osteophytosis. There is resultant valgus deformity at the femorotibial joint. Medial joint space is preserved. There is minor osteophytosis at early joint space loss at the patellofemoral compartment. Joint space loss on these radiographs is markedly different to images taken 17/01/2021 due to them being obtained whilst the patient was weightbearing.”• 7/5/21: Claimant contacts GP again, reporting another episode of knee pain, expressing uncertainty about the condition’s management. The Claimant reported that he had a “swollen knee very painful and large” this was a new problem which had lasted 2 days. The doctor recommended Ibuprofen as an anti-inflammatory medication• 30/10/23: Post-dismissal, Claimant reports struggling with knee pain;• 30/11//23 Diagnosis of Synovial Cyst in the right knee after dismissal; treatment remains RICE (Rest, Ice, Compression, Elevation) and NSAID Gel.[37]Paragraph 37 of the Respondents Grounds of Resistance accepts that “the Claimant did bring to Ewa's attention on or around July 2023 that he had knee pain…”. It is also apparent from the terms of paragraphs 16 and 17 that at the disciplinary hearing on 22/8/2023 the Claimant attributed his having “sat for long periods at work between floors” to knee pain and his having sat for periods in the toilets to “resting his knees”.[38]Mr Werenowski submitted that what was diagnosed as osteoarthritis in 2021 was in fact Bakers Cyst which was then correctly diagnosed after the Claimant was dismissed. I reject this submission. Osteoarthritis and Baker’s Cyst are two quite different conditions. The diagnosis of osteoarthritis was clear as can be seen from the report dated 29/1/21. Case No: 3314329 2023 7[39]There is no evidence that the Claimant had Baker’s Cyst while he was employed by the Respondent. On the other hand as he was diagnosed with osteoarthritis of the right knee in January 21 and as it is a chronic degenerative condition, it was an impairment which had lasted more than 12 months and was continuing during the relevant period up to his dismissal. After his dismissal a Baker’s Cyst was found. This does not mean that he did not have osteoarthritis before as the two conditions are not mutually exclusive nor necessarily linked.[40]Many overweight persons in their 60s such as the Claimant have osteoarthritis in their knees as a common degenerative condition. It is likely that the Claimant in recent years did experience knee problems interfering with his work because his work was physical protracted and involved walking up and down stairs and using vacuum cleaners etc for long hours. It is clear that the Claimant did report knee pain to the Respondent from July 2023 onwards, and when he was subjected to a disciplinary process shortly afterwards he attributed the slowness at work (about which he was being disciplined) to his knee pain. It is also likely that, having this condition which was already causing him episodes of serious pain in 2021, and aggravated by his work, that he also experienced reduced mobility away from work caused by knee pain during the relevant period.[41]It is true that he did not take any sick leave and continued working his shifts, but he was probably driven to do so despite the pain by his wish to retain his employment to ensure he continued earning money to send back to his family in Poland.[42]I have noted that he did not seek any medical help for his knee or report any ongoing problems to the doctor from 7/5/21 until after dismissal on 30/10/23. However, he has stated that he was self-medicating with Ibuprofen etc and there are references in the medical notes to the doctor having advised him to do this.[43]As it is clear that he had significant knee pain reported to the doctor in 2021 and that he also raised the issue of his ongoing knee pain with the Respondent before any disciplinary proceedings were afoot, there is no good reason to doubt his account which he gives in his witness statement (for example in paragraphs 30-32) and impact statement about the fact that he had a knee condition which caused him mobility problems in his everyday life (for example interfering with his walking and standing, carrying or lifting objects and using public transport) amounting to a substantial adverse effect. He has proved on a balance of probabilities that he was disabled by osteoarthritis.[44]It is not shown that the Baker’s Cyst impairment existed at all during employment and the Claimant has not shown that it had a substantial adverse effect on his ability to carry out normal day-to-day activities at the relevant time.[45]I raised with the parties during the hearing the fact that it might be necessary for the Claimant to amend his claim to rely on osteoarthritis rather than Baker’s Cyst and, thus encouraged, Mr Werenowski made an informal application for permission for the Claimant to do this, which the Respondent opposed. I grant permission for this amendment which is really relabelling as a matter of formal pleading an impairment which was thoroughly explored in general terms before me. In any event in a disability discrimination claim what is important is whether a Claimant had a disabling impairment and not ascertaining its exact cause or medical description. _____________________________ Case No: 3314329 2023 8 Employment Judge J S Burns 13/12/2024 Date Sent to The Parties: 15/1/2025 For Secretary of the Tribunals N Gotecha Useful information All judgments (apart from judgments under Rule 52) and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents. There is more information about the Employment Tribunals on the judiciary website. In particular, you may wish to read the information behind the tiles “Before the hearing”, “At the hearing”, “Rules, Orders, Practice Directions and Guidance”, Sources of advice and support” and “Further information”. The website is here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and- legislation-practicedirections/ The Employment Tribunals Rules of Procedure are here: https://www.gov.uk/government/publications/employment-tribunal-procedure-rules You can appeal to the Employment Appeal Tribunal if you think a legal mistake was made in an Employment Tribunal decision. There is more information here: https://www.gov.uk/appeal-employment-appeal-tribunal Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings. You can access the Direction and the accompanying Guidance here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and- legislation-practicedirections/ 3314329 2023 1 EMPLOYMENT TRIBUNALS Claimant: Mr Adam Josef Kryk Respondent: Mitie Limited NOTICE The Claimant’s application dated 28/1/25 which was sent to me for the first time on 13/6/25 for reconsideration of the judgment dated 13/12/24 is refused[1]The application does not state whether the Claimant’s representative proposes that the judgment should be varied or revoked but in either case there is no reasonable prospect of this.[2]The only reason put forward in support of the application is the lack of an interpreter on 13/12/24 but on that day I suggested an adjournment to get an interpreter and following submissions from the Claimants representative (that the Claimant would be unable to give evidence and answer questions under cross-examination properly in any event, even if an interpreter was arranged), the decision to proceed without an interpreter and on the papers only was made by consent.[3]The Claimants representative in the application has not stated whether or not he has changed his mind about the opinion he expressed on 13/12/24 (which is set out in brackets in the previous paragraph) but if he has he has not provided his reasons for doing so.[4]The Claimant through his representative elected to proceed and having done so it would be unjust and a poor use of Tribunal resources to undo the outcome so he can follow another course which he decided against before the outcome was known. Approved by: