Mr J Todd v Glasgow Prestwick Airport: 4100581/2021

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4100581/2021

Between

Mr Joseph ToddClaimant

Glasgow Prestwick AirportRespondent

Before

Employment Judge P O’Donnell

Ms Pozzo for claimant

Student Representative for claimant

Ms Usher (instructed by Solicitor) for respondent

Date 25 October 2021

JUDGMENT

The Judgment of the Employment Tribunal is that the Claimant has not proved that he meets the definition of disability in s6 of the Equality Act 2010. The Tribunal does not, therefore, have jurisdiction to hear the claims of disability discrimination under the 2010 Act and the claim is, hereby, dismissed.

REASONS

[1]The Claimant has brought a complaint of disability discrimination under the Equality Act 2010 against the Respondent in relation to the termination of his employment. The claim originally included other complaints which were withdrawn during the case management process.

[2]The Respondent resists the claim and one of the issues is that they do not concede that the Claimant is disabled as defined in s6 of the Equality Act 2010. The present hearing was listed to determine this issue.

Evidence

[3]The Tribunal heard evidence from the Claimant.

[4]This was not a case where there was any real dispute of fact and the Respondent did not challenge the Claimant’s credibility and reliability. In any event, the Tribunal considered that the Claimant was a reliable and credible witness who gave evidence in an open and honest manner.

[5]A witness statement from the Claimant’s wife describing the effects of the alleged disability on the Claimant was lodged in the bundle. The Claimant’s wife was not present and did not give evidence at the hearing. The Tribunal agrees with the submissions made on behalf of the Respondent that, in many cases, little or no weight should be given to a witness statement in the absence of the witness to speak to it and be cross-examined. However, this was not a case where there was competing versions of events and the Respondent was not leading evidence to contradict the Claimant’s evidence. Further, the statement from the Claimant’s wife broadly reflected the evidence of the Claimant himself. In these circumstances, the Tribunal did take note of what was said in the statement although it did not consider that this evidence particularly influenced its decision.

[6]There was an agreed bundle of documents prepared by the parties. References to page numbers below are references to pages in the bundle. Findings in fact

[7]The Tribunal made the following relevant findings in fact.

[8]The Claimant was employed as a security officer by the Respondent from 12 March 2019 until he was dismissed on 7 January 2021.

[9]In a previous job, the Claimant had worked night shifts of 8 hours duration for a number of years but this was increased to 12 hours in 2017. The Claimant found that he began to feel anxious and stressed about working night shifts after the duration of these shifts were increased. He had no instances of stress or anxiety of the type which he began to experience in 2017 in relation to the 8 hour night shifts which had had worked previously.

[10]The Claimant had difficulty sleeping when he was anticipating having to work these shifts. He also had difficulty eating; he found that he could not regulate his eating pattern and would not eat for the whole of a shift unlike colleagues who would eat a meal during their break. He would become very concerned about when he should eat when having to work night shift.

[11]The Claimant had difficulty concentrating and focussing on any household tasks at such times. He found he became so focussed on the fact that he had to work night shift that he could not concentrate on such tasks and did not want to do anything. The Claimant would also not want to socialise or take part in leisure activities.

[12]The Claimant attended his doctor regarding these difficulties on 25 April 2017 (p71). The GP’s note of the meeting records the Claimant as describing himself as not getting enough sleep and that this was affecting his mood. He states that felt more irritable but was not depressed.

[13]Around this time, the Claimant was diagnosed with hypertension and given medication for his blood pressure. This was not connected with the issues related to working night shift. The Claimant continues to take the medication.

[14]The effects on the Claimant ceased whenever he was not working night shift and he did stop working night shift with his previous employer at some point in 2017. He was made redundant from his previous employment in 2018.

[15]The Claimant attended his doctor for a check-up on his hypertension on 24 July 2017 (p70) and the GP’s note records that the Claimant as saying he was feeling well with no issues with low mood, anxiety or depression.

[16]There were no instances of the Claimant suffering the effects on his day-today activities described above from when he ceased working the 12 hour night shifts with his previous employer in 2017 until January 2021 when he was asked by the Respondent to work a 12 hour night shift.

[17]The Claimant had been rostered to work night shifts with the Respondent’s prior to January 2021 but had been able to swap shifts with a colleague. In doing so he avoided any of the effects described above.

[18]When he was requested to work night shift by the Respondent in January 2021, the Claimant again found that he began to feel stressed and anxious about this as he had in the past.

[19]The Claimant has now found a new job which does not involve night shifts. If he was seeking employment in the future then he would avoid any job which required him to work night shifts.

[20]The Claimant has not experienced similar effects on his activities arising from anything else. The only times these effects have occurred has been at times when he was required to work night shift.

[21]The length of the night shift did have an impact on the effects on the Claimant. He considered that there was a significant difference between a 12 hour shift and a shorter shift of 8-9 hours. In particular, he would find it difficult to regulate his eating pattern. He did find night shift stressful generally but the effects described above would only manifest with the 12 hour shift. Claimant’s submissions

[22]The Claimant’s agent lodged written submissions and spoke to these orally.

[23]Ms Pozzo started by setting out the relevant statutory provisions and drew the Tribunal’s attention to the Government Guidance on the definition of disability. She then set out the relevant facts which she invited the Tribunal to find.

[24]It was submitted that, per the case of Goodwin (below), there were four questions for the Tribunal to address in deciding whether the Claimant was disabled for the purposes of the Equality Act 2010 and took the Tribunal through each of them in turn.

[25]Starting with the issue of impairment, it was submitted that the caselaw emphasises that it is the effects rather than the cause of the impairment and the Claimant did not need to establish a medical diagnosis (Walker, below). Reference was made to the Claimant’s medical records and what is recorded in those.

[26]Turning to the issue of adverse effect, Ms Pozzo made reference to the DLA Piper case (below) and to paragraph D3 of the Government Guidance. It was submitted that the evidence demonstrated that there was an observable effect on how the Claimant interacted with other, eat food or participate in activities as well as there being an impact on his sleep.

[27]Ms Pozzo went on to submit that, when the Claimant’s impairment was triggered, the effect was substantial as described in the evidence.

[28]In relation to the long-term condition, it was accepted that the Claimant did not suffer substantial adverse effects when his impairment was not triggered and reference was made to Schedule 1 paragraph 2(2) of the 2010 Act. It was submitted that the effects were likely to recur and so should be deemed long term under this provision. Ms Pozzo drew the Tribunal’s attention to the evidence of what occurred at the Claimant’s previous place of employment. Reference was made to the questions posed in Swift v Chief Constable of Wiltshire Constabulary

[2004] IRLR 540

which she submitted should be answered positively in the Claimant’s favour. In particular, she submitted that the effects would recur in the future if the Claimant is asked to work night shift.

[29]In conclusion, it was submitted that the Claimant had satisfied all the conditions necessary to meet the definition of disability. Respondent’s submissions

[30]The Respondent’s agent produced written submissions and supplemented these orally.

[31]Ms Usher also began her submissions by setting out the relevant statutory provisions and caselaw. She also drew the Tribunal’s attention to the questions to be answered as per Goodwin.

[32]In relation to the issue of impairment, it was submitted that the medical records do not show any evidence that the Claimant suffered from anxiety. Rather, Ms Usher suggested that the description given in the records was “stress at work” and she drew the Tribunal’s attention to where this phrase was used in the records.

[33]Ms Usher placed reliance on paragraph 42 in the DLA Piper case as authority for her submission that the Claimant had had a reaction to adverse circumstances (that is, working on night shift) rather than a mental impairment.

[34]If the Claimant is found to have an impairment then it was submitted that this did not adversely affect his day-to-day living activities. Reference was made to the contents of the Claimant’s disability impact statement (p55) where it is stated that he “usually” has no difficulties with his day-to-day activities but that when his condition is triggered he struggles to eat and sleep. It is accepted that these are day-to-day activities but that they were not adversely affected; struggling to get enough sleep is a common complaint.

[35]Ms Usher also made reference to the documents completed by the Claimant when he applied for employment with the Respondent (p94) in which he indicated that he would have not an issue with working night shift.

[36]If there was any adverse effect then it was submitted that this was not substantial. No medical evidence was produced to support this.

[37]Finally, in relation to the long term condition, Ms Usher submitted that there was no evidence that any effects had last at least 12 months by the relevant date (that is, 7 January 2021).

[38]In terms of whether the effects were likely to last at least 12 months then it was submitted that there was no evidence of this in the medical records nor was there any other evidence supporting this.

Relevant Law

[39]Disability is one of the protected characteristics covered by the Equality Act 2010 and s6 of the Act defines disability as a physical or mental impairment which has long-term, substantial adverse effects on a person’s day-to-day living activities.

[40]Schedule 1 of the 2010 Act sets out further provisions in relation to the definition of “disability”:- Paragraph 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.

(2) 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 to be treated as continuing to have that effect if that effect is likely to recur.

(3) For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed.

(4) Regulations may prescribe circumstances in which, despite subparagraph (1), an effect is to be treated as being, or as not being, longterm. Paragraph 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.

[41]In Goodwin v Patent Office

1999 ICR 302

, the Employment Appeal Tribunal gave guidance as to how the Tribunal should approach the issue of disability by addressing the following questions:-a. Did the claimant have a mental and/or physical impairment? (the ‘impairment condition’)

b. Did the impairment affect the claimant’s ability to carry out normal day-today activities? (the ‘adverse effect condition’)

c. Was the adverse condition substantial? (the ‘substantial condition’), and

d. Was the adverse condition long term? (the ‘long-term condition’).

[42]However, in J v DLA Piper UK LLP

2010 ICR 1052

, it was said that the Tribunal did not have to rigidly adhere to answering these questions consecutively although it is good practice for the Tribunal to set out its findings on these issues separately. In particular, if the issue of impairment is in dispute then it may assist for the Tribunal to set out its findings on the long term, substantial and adverse effect conditions first then address the issue of impairment in light of its findings.

[43]The term “impairment” is to be given it ordinary and natural meaning and has broad application (McNicol v Balfour Beatty Rail Maintenance Ltd

2002 ICR 1498

[44]In considering whether there is an impairment, it is the effect and not the cause of any impairment which is of importance to the Tribunal’s determination of whether a claimant is disabled (Walker v Sita Information Networking Computing Ltd

UKEAT/0097/12

[45]The Government Guidance on the definition of disability addresses the issue of what can be considered “normal, day-to-day” activities at D2-7.

[46]Section 212(2) of the 2010 Act states that the word “substantial” means more than minor or trivial.

[47]The Government Guidance on the definition of disability deals with the issue of disabilities with recurring effects at paragraph C9:- Likelihood of recurrence should be considered taking all the circumstances of the case into account. This should include what the person could reasonably be expected to do to prevent the recurrence. For example, the person might reasonably be expected to take action which prevents the impairment from having such effects (e.g. avoiding substances to which he or she is allergic). This may be unreasonably difficult with some substances.

[48]The word “likely” appears in a number of contexts in the provisions relating to the definition of disability. The House of Lords in SCA Packaging Ltd v Boyle

[2009] IRLR 746

held that this should be interpreted as meaning “could well happen”.

[49]The Tribunal must assess the issues relevant to disability status (for example, whether there are substantial adverse effects, whether the effects are longterm, the likelihood of recurrence) as at the date of the alleged discrimination (McDougall v Richmond Adult Community College

[2008] IRLR 227

[50]The Tribunal considers that the first question for it to decide is the date at which it should assess whether the Claimant was disabled. In light of what is said in McDougall, the Tribunal considers that the relevant date was the date of the Claimant’s dismissal, that is, 7 January 2021. The Claimant’s dismissal is the act on which all of his disability discrimination claims are founded and parties did not suggest that any other date would be relevant.

[51]Turning to the four conditions identified in Goodwin, the Tribunal notes that this is a case where there is a dispute as to whether or not there is an impairment. The Tribunal also notes that, although the Claimant has labelled any condition which he may have as “anxiety” and “severe stress”, there has not been any formal diagnosis by his GP of a particular medical condition which would assist in answering the question of whether there was an impairment. The Tribunal does remind itself that it should not focus solely on formal diagnoses and it should look at the evidence of how the Claimant was affected (Nissa v Waverly Education Foundation Ltd

UKEAT/0135/18

[52]The Tribunal, therefore, considers that it will first consider the issues of substantial adverse effect and whether any such effects were long-term as its findings on these issues will assist in addressing the question of whether there was an impairment.

[53]The Claimant describes an effect on his ability to sleep, eat, socialise and to concentrate on any household tasks whenever he is affected by anxiety and stress in relation to working night shift. These are all matters which the Tribunal considers to be normal day-to-day activities.

[54]What the Claimant describes is clearly an adverse effect on such activities and the Tribunal considers that what is described is substantial. The Claimant describes being unable to engage in these activities at all (or only being able to engage with difficulty) and this is clearly more than a minor or trivial effect.

[55]In these circumstances, the Tribunal is satisfied that there is a substantial adverse effect on the Claimant’s day-to-day living activities whenever he is affected by anxiety and stress relating to working on night shift.

[56]Turning to the issue of whether such effects are long-term, the Tribunal notes that it is only when he is being required to work night shift that is affected. The Claimant was quite clear that his anxiety or stress is not caused by any other matter and he has not experienced similar effects in other circumstances in either the workplace or in his personal life.

[57]The Claimant’s evidence only describes two instances when these effects occurred; the period when he was required to work a longer night shift in his previous employment and when he was asked to work night shift by the Respondent. In the intervening period he did not experience these effects at all.

[58]Those effects had not lasted (in either instance) for at least 12 months and so the Claimant cannot satisfy the long-term condition by relying on Schedule 1 paragraph 2(1)(a). This is a case, therefore, where sub-paragraphs (b) or (c) of Schedule 1 paragraph 2 are the applicable provisions and the Tribunal needs to determine whether the effects are likely to last for at least 12 months or the rest of the Claimant’s life as assessed at 7 January 2021.

[59]It is quite clear from the evidence that this is a case where any impairment ceased to have effect when the matter causing the adverse effects (that is, night shift) no longer applied. It was not the Claimant’s case that he had any continuing effects in the period between 2017 when he stopped working night shift with his previous employer and 2021 when he was asked to work night shift by the Respondent. On the face of it, therefore, the evidence of the position as at 7 January 2021 is that, on the face of it, the substantial adverse effects were not likely to last at least 12 months because they ceased once the requirement for night shift fell away.

[60]The Tribunal, therefore, needs to address the question posed in Schedule 1, paragraph 2(2) of the 2010 Act as to whether the effects described above are likely to recur and so are to be deemed to be continuing. This is the crux of the Claimant’s case on the long-term condition, that is, that the substantial adverse effects are likely to recur and so are deemed to be continuing by this statutory provision. If they are not likely to recur then the effects are not longterm and the Claimant would not meet the definition of disabled.

[61]The Tribunal considers that the evidence before it, although limited to only two instances, does allow it to draw the inference that the effects would recur in the future if the Claimant was required to work night shift.

[62]However, this is not the end of the matter and the Tribunal considers it also has to assess the likelihood that the circumstances giving rise to the effects on the Claimant would recur given that it is a very specific circumstance.

[63]The Tribunal notes that there is no evidence of the effects described by the Claimant being a manifestation of any underlying medical condition. Further, the Claimant’s evidence was that no other circumstances had triggered similar effects. On the basis of the evidence before it, the Tribunal concludes that the substantial adverse effects on the Claimant are a reaction to the very specific circumstances of being asked to work night shift.

[64]In this respect, the Tribunal does note that there is a question as to whether it is night shift in and of itself which causes the effects or whether it is both the fact and the length of the night shift which is the trigger. The Claimant gave evidence that he had worked night shifts for his previous employer without any adverse effect on him and it was only when the length of night shift was increased to 12 hours that he began to be affected.

[65]The night shift which the Claimant was asked to work by the Respondent was also 12 hours in length and there was no evidence before the Tribunal as to how the Claimant would be affected by being asked to work a night shift of lesser duration. The Claimant did state that he found the thought of night shift stressful and that this increased with an increase in the duration of the shift. However, that does not provide any evidence of what the effects on his dayto-day activities would be if he was asked to work a shorter night shift.

[66]In these circumstances, bearing in mind that the burden of proof is on the Claimant, the Tribunal considers that, based on the evidence before it, it can only conclude that the effects on the Claimant would only recur in the specific circumstances of the Claimant being asked to work a night shift of 12 hours given that he had worked shorter night shifts in the past with such effects occurring.

[67]There was no evidence before the Tribunal from either side as to the duration of night shifts across the workforce or in specific industries so as to give the Tribunal an evidential basis on which it could draw inferences about the likelihood of the Claimant being asked to work a 12 hour night shift in a future job. This is not a matter which the Tribunal considers to be within judicial knowledge other than to say that, given the requirements of the Working Time Regulations 1998 regarding daily rest periods, a duration of 12 hours must be at the upper limits for the length of such shifts.

[68]Further, the Tribunal does consider that it is within judicial knowledge that night shifts are not a feature of every job across the workforce and that there are many jobs, and industries, which do not feature night shifts at all.

[69]The Tribunal also bears in mind the Government Guidance and, in particular, paragraph C9 (above). It is relevant to consider whether there were steps which the Claimant could take to avoid any recurrence of the effects (especially given the very specific circumstances which would trigger these) and, indeed, the Claimant gave evidence that he had found a new job which did not involve night shifts to avoid the issue and would, in the future, only take jobs which did not involve night shift. He had also taken steps to avoid night shift during his time with the Respondent when he had been rostered to work such a shift by swapping shifts with a colleague.

[70]In these circumstances, the Tribunal considers that, based on the evidence before it, there is very little or no likelihood of a recurrence of the effects described above; a recurrence would only occur in the event that the Claimant was asked to do a night shift of 12 hours; there is no evidence before the Tribunal that the night shift would be an inevitable or even likely feature of any job which the Claimant secures in the future; the Claimant is now taking steps to avoid a recurrence having found a new job which does not involve night shift and if he remains in that job then there would be no recurrence; the Claimant also gave evidence that if he did have to find another job in the future then he would avoid any job which featured night shifts.

[71]The Tribunal did give consideration as to whether it could be said that the fact that the Claimant was prevented from working 12 hour night shifts could, in itself, amount to a substantial adverse effect on his day-to-day living activities. The Tribunal was conscious that engaging in professional or working life can amount to day-to-day living activities.

[72]However, the Tribunal does not consider that being unable to work 12 hour night shifts prevents the Claimant from engaging in working life. As noted above, 12 hour night shifts are not an inevitable or common part of working life and there was no evidence that the Claimant was prevented from working by the fact that he was unable to work such shifts.

[73]The Tribunal, therefore, finds that the effects on the Claimant having ceased and there being very little or no likelihood of these recurring then the Claimant has not satisfied the long-term condition of the test for disability.

[74]This would be sufficient to dispose of the question of whether the Claimant is disabled as defined in s6 of the Equality Act 2010 but the Tribunal will, for the sake of completeness, go on to consider whether the Claimant had an impairment in light of its findings on the substantial adverse effect conditions and the long-term condition.

[75]The Tribunal does consider that, when he was required to work a 12 hour night shift, the Claimant did have a mental impairment. The effects on his day-to-day living activities when he is asking to work a 12 hour night shift go well beyond a normal reaction to a change in circumstances or a simple dislike for working such shifts.

[76]It was quite clear to the Tribunal from the evidence that when faced with such circumstances the Claimant becomes wholly consumed with the thought of working the night shift that he becomes almost incapable of doing anything which might be considered to be a day-to-day activity. The Tribunal considers that, although there has been no specific diagnosis of a recognised medical condition, this is an impairment for the purposes of s6 of the Equality Act.

[77]In summary, the Tribunal does find that the Claimant has a mental impairment which has substantial adverse effects on his day-to-day living activities when the specific circumstances which trigger that impairment apply. However, those effects are not long term because they have ceased and are not likely to recur.

[78]In these circumstances, the Claimant has not proved that he meets the definition of disability in s6 of the Equality Act 2010. The Tribunal does not, therefore, have jurisdiction to hear the claims of disability discrimination under the 2010 Act and those claims are, hereby, dismissed.