Ms K McKeen v GEO Amey Ltd and Scottish Prison Service: 4101251/2025
JUDGMENT
[1]The claimant had a disability as defined in section 6 of the Equality Act 2010 (EqA) at the material times for the purposes of her claim, between November 2020 and January 2025. Introduction[1]This claim arises out of the claimant’s employment with the First Respondent as a Prison Custody Officer. The First Respondent is a contractor that provides its services to the Second Respondent. The claimant’s employment ended in January 2025. The claim is in respect of complaints of alleged disability discrimination, maternity discrimination, detriment and dismissal for making public interest disclosures, and unfair dismissal.[2]The claimant asserts that she had a disability, within the meaning of s.6 EqA, at all material times for the purposes of her claims of disability discrimination. The conditions relied upon as impairments are Post Sepsis Syndrome and Functional Cognitive Disorder. The respondents do not accept that the claimant meets the definition of a disabled person under the EqA. In particular they do not accept that the claimant had any impairment that had a substantial and long term adverse impact on her normal day-to-day activities.[3]This preliminary hearing had the sole purpose of determining whether the claimant was a disabled person within the meaning of s.6 EqA.[4]The period of 20 November 2020 to January 2025 was treated as the material time for the purposes of assessing whether the claimant had a disability. This period of time covers the dates of all events and acts she refers to in support of her complaints.[5]The claimant was represented at the preliminary hearing by Mr Gavin, a lay representative. The first respondent was represented by Mr McLaughlin, Solicitor. The second respondent was represented by Ms Brocklebank, Solicitor. The parties had helpfully prepared a joint bundle of documents pursuant to case management orders which had been issued.[6]The claimant gave evidence on her own account and was cross examined by Mr McLaughlin and Ms Brocklebank. Mr Gavin and Ms Brocklebank provided the Tribunal with written closing submissions. Mr McLaughlin gave oral closing submissions. I said that I would reserve my decision and issue it with reasons in writing, which I now do. I considered the parties’ submissions, including relevant authorities, in the course of reaching the decision below although they are not referred to in full. The issue to be determined[7]As this was a substantive preliminary hearing on a discrete issue the question to be decided was restricted to the following: a. At the material time, being November 2020 to January 2025, was the claimant a disabled person within the meaning of section 6 of the Equality Act 2010, in that: i. She had a physical or mental impairment; ii. That impairment had an adverse effect on her ability to carry out normal day to day activities; iii. That effect is or was substantial; and iv. That effect is or was also long-term. The relevant law[8]Disability is a protected characteristic under the EqA. Section 6 defines disability as follows: 6 Disability (1) A person (P) has a disability if-a. P has a physical or mental impairment, andb. The impairment has a substantial and long term adverse effect on P’s ability to carry out normal day-to-day activities.[9]The definition set out in section 6 poses 4 essential questions:a. Does the claimant have a physical or mental impairment?b. Does that impairment have an adverse effect on their ability to carry out normal day to day activities?c. Is that effect substantial?d. Is that effect long term (ie lasted or likely to last 12 months)?[10]In accordance with s.6(5) of the EqA, guidance is published covering matters to be taken into account when determining questions relating to the definition of disability (‘Guidance’). The Equality and Human Rights Commission has issued an Employment Statutory Code of Practice (‘Code’) that employers and Tribunals may also consider when judging whether a disability exists and if so the way and extent to which it should be accommodated.[11]In the case of McNicol v Balfour Beatty (2002) IRLR 711 the Court of Appeal held that “impairment” in this context bears its “ordinary and natural meaning…it is left to the good sense of the Tribunal to make a decision in each case on whether the evidence available establishes that the applicant has a physical or mental impairment within the stated effects”.[12]The Code states that there is no need for a person to establish a medically diagnosed cause for their impairment. What is important to consider is the effect of the impairment, not the cause.[13]In Ministry of Defence v Hay 2008 ICR 1247 the EAT held that an impairment could be an illness or the result of an illness, and that it was not necessary to determine its precise medical cause. The statutory approach, said the EAT, “is self-evidently a functional one directed towards what a claimant cannot, or can no longer, do at a practical level.”[14]The Guidance explains in relation to day to day activities that: “In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities.”[15]The Appendix to the Guidance sets out an illustrative and non-exhaustive list of factors which, if they are experienced by a person, it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities.[16]In considering the question of substantial adverse effect, substantial means “more than minor or trivial” (see s.212 EqA).[17]In the case of Leonard v South Derbyshire Chamber of Commerce (2001) IRLR 19 the EAT gave guidance stating that the focus should be on what an employee cannot do or can only do with difficulty, and not on what they can easily do, and the decision maker should look at the whole picture but should not attempt to balance what an employee can do against what they cannot.[18]An impairment will have a long-term effect only if it has lasted for at least 12 months, the period for which it lasts is likely to be 12 months, or it is likely to last for the rest of the life of the person affected (Schedule 2, paragraph 2(1) EqA). Findings of fact[19]In November 2020 the claimant gave birth to a daughter. In the days after the claimant returned home from hospital after the birth the midwife came to the claimant’s house to check on the claimant and her baby and noticed that the claimant appeared to be experiencing symptoms that were indicative of sepsis, despite carrying out observations that came back normal. The midwife was still concerned and so sent the claimant back to hospital to be seen.[20]The claimant was admitted to hospital. She was unable to see properly, her vision was distorted and she described experiencing delusions, including believing that the doctor examining her only had one arm. The hospital tested the claimant and confirmed that she had sepsis. The claimant said it was explained to her that she had been experiencing ‘sepsis showers’ where for periods of time she showed signs of infection but then for other periods of time in between appeared to be fine. As a result of this it had taken longer than usual for the sepsis to be identified, diagnosed and treated.[21]After her hospital treatment the claimant’s family and friends started noticing that the claimant’s memory was impaired and she was struggling to focus. The claimant would get lost on familiar routes, forget appointments, forget names of things and experience confusion. The claimant had difficulty following directions and instructions. She would struggle to follow a storyline in TV programmes and films.[22]The claimant would also forget to protect herself from taking hot dishes from the oven, resulting in her burning herself. Her concentration was significantly impaired; she would struggle to follow conversation or to participate in conversations involving multiple people as she could not keep up.[23]After the birth of another daughter in July 2022 the claimant found that on some days she was unable to function properly. She described being unable to dry her own hair, that it would take her 2 hours to do so, and therefore needing to book a weekly blow dry. On some days the claimant feels well and on other days she described herself as feeling like she had been hit by a brick.[24]Since suffering sepsis the claimant has experienced extreme tiredness and can feel exhausted after carrying out simple tasks. She also experiences extreme muscle tiredness, muscle and joint pain, aches and headaches. The claimant’s sleep has also been significantly impacted, struggling to get to sleep or when she is asleep experiencing extreme nightmares and night sweats.[25]The claimant now has to drive an automatic rather than manual car as she cannot lift her left leg on its own when sitting in an upright position. When going up stairs her brain does not send the correct signals to her legs, often resulting in her falling up the stairs, and this also sometimes occurs when going downstairs.[26]The claimant has also experienced a significant impact on her mood, experiencing anxiety, symptoms of depression, loss of confidence and feeling irritated.[27]The claimant does not take any medication for her symptoms other than painkillers, having been advised that there are no medications that can improve her condition. Instead she has been advised to try therapies to reduce stress, such as art therapy sessions, to exercise regularly and to implement strategies to live a calmer lifestyle.[28]Over a four year period between 2020 and 2024 the claimant had 83 appointments with her GP for a number of different issues.[29]The claimant is in receipt of benefits; she receives an enhanced Daily Living Needs award and an enhanced Mobility Needs award on the basis of an assessment by Social Security Scotland. The claimant has a Motability Scheme car and a blue badge. The claimant also has a carer to assist her with her daily needs, currently her sister, who is in receipt of a Carer’s Allowance.[30]On 24 May and 12 July 2025 the claimant completed a 5k park run at Levengrove Park, Dumbarton, running the distance in 39 minutes and 43 minutes respectively. The claimant has registered for the Edinburgh Half Marathon to take place on 24 May 2026 but said she had been unable to train for this event and is therefore unlikely to participate.[31]During cross examination, when asked about references to evidence that the claimant had sepsis in the bundle, the claimant drew the Tribunal’s attention to a report dated 8 February 2023 from Dr Gall, Consultant Neurologist. The report recorded that her GP had referred her with concerns about her memory which, following assessment by the community mental health team, raised a query about functional cognitive disorder. The report stated “She had a significant episode of post-natal sepsis in November 2020. She recalls being at home and becoming unwell with visual disturbance and then does not fully recall events.” The report corroborates the account that the claimant gave to the Tribunal in respect of her symptoms and notes “In summary this lady has noticed cognitive change that is persistent but not progressive since a severe episode of post-natal sepsis in 2020.” Dr Gall referred the claimant for an MRI scan and noted that her colleague from neuropsychology was doing some further work with the claimant. The Tribunal was not taken to any follow up reports. The parties’ submissions[32]On behalf of the claimant, Mr Gavin urged the Tribunal to disregard the evidence, relied upon by the respondents, that showed that the claimant had completed park runs and had posted on social media about running, expressing an interest in taking part in charity abseils and completing a half marathon. Mr Gavin asserted that this evidence was not relevant as it related to a period outside of the material period and was designed to attempt to prejudice the Tribunal against the claimant. Mr Gavin relied upon the contents of the claimant’s impact statement as setting out the evidence that the claimant met the definition of a disabled person. He did not seek to take me to any particular part of the medical records in the bundle, asserting only that the records did corroborate the claimant’s case.[33]On behalf of the first respondent, Mr McLaughlin set out that the burden of proof was on the claimant to satisfy the components of s.6 EqA and that the claimant had fallen short in doing so and had not satisfied the evidential burden. He submitted that there was a lack of clarity around the two medical conditions relied upon by the claimant, that there were only a couple of passing references to sepsis in the medical records, and that the reference to post-natal sepsis in the report of Dr Gall, Consultant Neurologist, dated 8 February 2023, was simply the claimant self reporting and not a diagnosis. Mr McLaughlin asserts that it is entirely unclear that there was a diagnosis of sepsis at any time, that anecdotally the claimant reports impairments that might have been connected to sepsis, but this was speculation as there was no medical evidence to support this. He asserts the same is true of Functional Cognitive Disorder, with an absence of cogent and coherent evidence.[34]Mr McLaughlin asserts that the information provided in the disability impact statement is inadequate to satisfy the burden of proof. Rather the claimant’s evidence only presents a vague and general picture of impacts that are trivial and minor in nature. He asserts there is no cogent evidence of a link between the claimant’s impairments and the impacts she relies upon.[35]Mr McLaughlin reminded the Tribunal that a decision on disability should not be made by reference to the things that the claimant can do but went on to submit that the things the claimant could do undermined the credibility of her account of the things she said she could not do, or could only do with difficulty. He drew particular attention to the evidence that the claimant can run, having run two 5km park runs, and having signed up for a half marathon, which he said was inconsistent with other evidence suggesting her mobility issues were such that she was in receipt of a Motability car and blue badge, and a daily living needs allowance on the basis that she could not walk unaided for more than 50 metres.[36]On behalf of the second respondent Ms Brocklebank submitted that the claimant had not pointed to medical diagnosis of either functional cognitive disorder or post sepsis syndrome and that she had failed to provide evidence that the impairments relied upon had a substantial adverse effect on her day to day activities. Ms Brocklebank submitted that the impacts described by the claimant were minor or trivial.[37]Mr Brocklebank also submitted that the claimant had failed to produce any medical evidence which supported the prognosis of her impairments being long term or likely to recur and that by 2024 the claimant was not experiencing effects of any sepsis or functional cognitive disorder. In support of this submission she draws the Tribunal’s attention to one entry in the medical records on 26 June 2024 when the claimant attended a Wellbeing Clinic and was recorded to be functioning well.[38]Ms Brocklebank submitted that the onus was on the claimant to establish at the material time that she met the statutory definition set out in s.6 EqA and that the evidence before the Tribunal was insufficient to discharge that onus. Discussion and decision[39]The legal question to be determined was whether the claimant was a disabled person at the material time for the purposes of her claim, being between November 2020 and January 2025.[40]As was made clear by the EAT in Goodwin v Patent Office [1999] IRLR 4, a Tribunal should approach the four key questions relating to disability status in order. The questions are:a. Does the claimant have a physical or mental impairment;b. Does the impairment have an adverse effect on their ability to carry out normal day-to-day activities;c. Is that effect substantial; andd. Is that effect long-term?[41]It was later added in J v DLA Piper UK LLP [2010] ICR 1052 that it can in some cases be helpful to consider the effect of an alleged impairment before deciding whether there is an impairment. This may be so particularly in cases involving a claimed mental impairment which is disputed.[42]The onus is on the claimant to establish that each factor was present at the material times. She submits that she has met the definition of a disabled person within the meaning of s.6 EqA since November 2020 after suffering an episode of sepsis following the birth of her daughter, and since suffering the symptoms of post sepsis syndrome and functional cognitive disorder. Physical or mental impairment[43]It is the impairment itself which matters in a legal sense, rather than the existence of a medical condition by name, or diagnosis. The Guidance suggests that the term ‘impairment’ should be given its ordinary meaning (paragraph A3). It does not go on to provide a definition, but the word is commonly understood to mean a reduction or weakness in a particular thing. The Guidance also provides that it is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. It notes that a disability can arise from a wide range of impairments which can be impairments with fluctuating or recurring effects. It also notes that it may not always be possible, nor is it necessary, to categorise a condition as either a physical or mental impairment. The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment and vice versa. It is important to remember that not all impairments are readily identifiable and while some impairments are easy to identify, there are many which are not so immediately obvious.[44]The claimant asserts that she has both physical and mental impairments that arose out of her suffering sepsis immediately after the birth of her daughter. The claimant described having a number of health problems as a consequence of the sepsis, and that she was later diagnosed with functional cognitive disorder as a result of the stress and impact that having sepsis had on her body.[45]Although the claimant had not requested copies of her hospital records and did not draw the Tribunal’s attention to specific parts of her extensive GP records to corroborate her evidence about having suffered sepsis, the claimant did refer to the report of Dr Gall, Consultant Neurologist, provided to the claimant’s GP, Dr Haslett, on 8 February 2023. That report was written after the claimant had attended at the neurology clinic on 6 February 2023 as a result of the claimant being referred by her GP due to concerns about her memory and a query about functional cognitive disorder by the community mental health team. The report records that the claimant had a significant episode of post-natal sepsis in November 2020 and I am satisfied that this is consistent with the claimant’s evidence to the Tribunal. The description of the claimant’s symptoms in relation to her memory, concentration, planning and organisation are also consistent with the claimant’s evidence to the Tribunal. With regard to physical symptoms the report records that the claimant felt much less fit and as though she has to lift her left leg a little to assist it, and described feeling exhausted after events that would not have caused her difficulty previously.[46]There is sufficient evidence in this case to establish that the claimant had an impairment at the material times from November 2020 to January 2025. After the claimant suffered sepsis following the birth of her daughter in November 2020 she has experienced adverse effects which are both physical and mental in nature. She has experienced cognitive change, extreme tiredness, muscle pain and significant impact on her sleep. I am satisfied that, applying their ordinary meanings, these effects amount to physical and mental impairments. Effect of impairment on ability to carry out normal day to day activities[47]In this claim, consideration of the effect of the claimant’s alleged impairment is closely related to the existence of the impairment, as was recognised in the case of J v DLA Piper. The impairments relied upon, those of post sepsis syndrome and functional cognitive disorder, do not have a universally recognised set of symptoms or effects. The claimant is required to show what the effect of the alleged impairment is on her own particular ability to carry out normal day to day activities.[48]Through her evidence to the Tribunal and the documents she provided the claimant was able to establish that her mental and physical impairment had an adverse effect on her ability to carry out normal day to day activities.[49]The EqA does not define ‘normal day to day activities’. The Guidance says that in general they are ‘things people do on a regular or daily basis’. Examples there given include shopping, having a conversation, watching television, getting washed and dressed, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. The Guidance provides examples rather than being prescriptive.[50]The claimant was able to provide evidence of a number of affected activities which are normal day to day activities. The claimant’s cognitive difficulties include getting lost on familiar routes, forgetting appointments even when she has written them in her diary, forgetting the names for things, struggling to follow directions or the storyline in a TV programme or film. She may also forget to protect herself from taking hot dishes from the oven, resulting in her burning herself. Her concentration is significantly impaired, for example she would struggle to follow conversation or to participate in conversations involving multiple people as she could not keep up.[51]The claimant’s physical impairments include extreme tiredness such that the claimant can feel exhausted after doing the simplest of tasks. The claimant also suffers extreme muscle tiredness, experiencing heavy and tired muscles. The impact of the physical impairments is that the claimant has difficulty walking up and down steps, often tripping as her leg does not lift as high as it needs to get up the step, being unable to drive a manual car as she is unable to operate the clutch, and being unable to do simple tasks such as drying her own hair as it would take her 2 hours to do so.[52]It is therefore accepted that the claimant was adversely affected in her ability to carry out a sufficient number of normal day to day activities by her alleged impairment. Was the effect of the impairment substantial?[53]The effect of the alleged impairment must be substantial. S.212 EqA confirms that substantial in context means ‘more than minor or trivial’. That is not a particularly high threshold.[54]I have considered carefully the submissions by both respondents that the adverse effect on the claimant’s day to day activities was only minor or trivial, and in particular I have had careful regard to the evidence relied upon by the respondents that the claimant was able to complete two park runs in May 2025, and the claimant having registered for a half marathon in May 2026, as to whether these facts were inconsistent with the claimant’s evidence as to her physical impairments in the material period.[55]I note that these events took place outside of the material period but accept that they may be capable of shedding light on the effect of the claimant’s impairments during the material period given the claimant’s evidence to the Tribunal that the adverse effect on her day to day activities had been affected since November 2020 and continue to be so to the present day. However I do not find that these events are inconsistent with the claimant’s evidence to this Tribunal. The claimant did not assert in evidence that she was unable to walk or to run. The claimant’s evidence was that she can still participate in physical activity, but that she finds it more difficult to do so than she did before November 2020, particularly as the after effects are such that she will then experience extreme tiredness or muscle pain. She has been advised that for management of her conditions, regular exercise is important and she therefore pushes herself to do things despite her limitations.[56]I also have regard to the claimant’s evidence that her impairments had fluctuating effects, in that she has good days and bad days. On good days the impact on her normal day to day activities may be more limited, but on bad days they would be substantially adversely affected.[57]I have also borne in mind the Guidance which emphasises that it is important to focus on what the claimant cannot do, or can only do with difficulty, rather than on the things that she can do.[58]I consider that the impact of the claimant’s impairments on her day to day activities is more than minor or trivial. The adverse effects I have identified above are such that, when comparing the difference between the way in which the claimant now carries out her day to day activities, in comparison to before suffering sepsis in November 2020, is substantially different to the way in which she was able to carry out her normal day to day activities before. They have been affected in a more than minor or trivial way. The correct comparison is not between what the claimant can do and that of an average person, but rather between what the claimant can do and what she could do without the impairment. I therefore conclude that in the material period there was a substantial adverse effect on the claimant’s day to day activities. Is that effect long term?[59]Long term in this sense equates to having lasted at least 12 months, or being likely to last 12 months at the time the test is applied, or being likely to recur or to last for the remainder of the individual’s life.[60]On the claimant’s evidence she has been affected since suffering sepsis in November 2020 and continues to be affected.[61]It is the substantial effect of the impairment which must be shown to be long term, not the underlying condition itself. Based on the evidence heard it can be ascertained that there has been a substantial effect on the claimant’s normal day to day activities from November 2020 to the present day. Conclusion[62]I did not find any of the arguments on behalf of the first and second respondents to be sufficiently persuasive in displacing the evidence of the claimant provided in both her impact statement and orally to the Tribunal. A finding of disability status is made on the balance of probability, and the claimant’s documentary and oral evidence was sufficient for that purpose. It may have been helpful to have been taken to greater corroborating detail in the claimant’s GP records, and to also have been provided with the hospital records clearly setting out the diagnosis of the conditions of post sepsis syndrome and functional cognitive disorder, but the claimant has nevertheless satisfied the burden of establishing that she met the definition set out in s.6 EqA. I found the claimant’s account of her impairments and their effects upon her day to day activities to be honest and credible. Her evidence showed clearly that the impacts she has experienced since suffering sepsis following the birth of her daughter in November 2022 go significantly beyond any difficulties experienced by members of society at large.[63]The claimant has provided sufficient evidence to establish that she was a disabled person within s.6 EqA since November 2020 and that she was therefore a disabled person for the purposes of her complaints of disability discrimination.[64]There is a further preliminary hearing listed (via CVP) for the purposes of case management on 24 March 2026. As directed by Employment Judge McManus at the hearing on 27 November 2025 the parties should be prepared with details of their availability for listing a final hearing and to discuss the following matters:a. Matters arising from this preliminary hearingb. Identification of the List of Issues to be determined by the Tribunalc. Whether any of those issues are suitable to be determined at a preliminary hearingd. Identification or relevant and necessary witnesses for determination of the issuese. Issue of any further case management order to ensure preparation for the next hearingf. Scheduling dates for the next hearingg. Confirmation of whether the final hearing should be before a full panel or an