Ms R Macintyre v Greater Glasgow and Clyde Health Board: 4105008/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4105008/2024

Between

Ms R MacintyreClaimant

Greater Glasgow & Clyde Health BoardRespondent

Before

Employment Judge McCluskey

Mr B Nichol (instructed by Solicitor) for claimant

Mr A Hardman (instructed by Counsel) for respondent

Date 2 December 2024

JUDGMENT

The judgment of the Tribunal is that the claimant was a disabled person in terms of section 6 Equality Act 2010 during the relevant period by reason of a physical impairment related to her knees, back and legs.

REASONS

[1]This was a public preliminary hearing to consider the issue of the claimant’s disability status under the Equality Act 2010 (EqA).

[2]The claimant gave evidence on her own behalf and produced a file of documents extending to 96 pages. This included the claimant’s disability impact statement and various medical reports.

[3]In 2015 the claimant was diagnosed with multiple sclerosis (MS). This is a deemed disability under the EqA. T Mr Nichol clarified that the claimant does not rely on her disability of MS for her Tribunal claim. Mr Nichol clarified that the claimant relies on a physical impairment related to her knees, back and legs. Mr Nichol clarified that the claimant asserts that this is one physical impairment rather than three separate impairments. The respondent admits that the claimant is a disabled person by reason of her MS (but the claimant does not rely upon this disability for her claim). The respondent does not admit that the claimant is a disabled person in respect of any other physical or mental impairment.

[4]It had been identified at the case management preliminary hearing that the claimant may require additional breaks during any hearing. We discussed breaks at the outset of the hearing. The claimant agreed that a break midmorning would be suitable. Parties were told that if anyone required a break at any other time, they should let the Tribunal know.

[5]The grounds of claim submitted with the ET1 claim form narrate a series of events commencing in April 2022 to presentation of her complaint on 14 May 2024. It is understood that this is the relevant period for the purposes of her complaints of disability discrimination. Findings in fact

[6]From the evidence before it, the Tribunal made the following essential findings in fact.

[7]The claimant began her employment with the respondent on around 14 February 2005. She remains in the employment of the respondent.

[8]On around 1 September 2020 the claimant fell at work and sustained an injury.

[9]On 22 November 2022 an orthopaedic medical report was obtained from Dr Molyneaux (November 2022 report). The November 2022 report recorded that the claimant has “ongoing hypersensitivity to touch over the front of both knees worse on the left than the right. She describes walking as not being too painful for her knees but anything that touches the front of her knees such as kneeling down or her husband touching her in bed cause her extreme pain”. On examination the claimant was noted to have “very marked tenderness to light palpitation of the skin over the front of both knees, particularly on the lefthand side”. On examination of her back she was noted to have “very significant tenderness on the right paraspinal muscles from L2 to L5”.

[10]The November 2022 report recorded that the claimant had developed a sudden onset of back pain in July 2021. She was bed bound for approximately four months and had been left with ongoing severe pain in her lower back. The report recorded that the claimant told Dr Molyneaux that she had been unable to walk or move normally due to her back pain since July 2021.

[11]The November 2022 report recorded what the claimant had told Dr Molyneaux about the impact of her injury on her daily activities. The claimant told Dr Molyneaux that she struggled to sleep, mainly due to hypersensitivity with her partner touching her knees or heavy bedclothes touching the front of her knees, which gave her pain severe enough to wake her up. The claimant told Dr Molyneaux that she used to go walking and shopping on a regular basis and undertake photography, but she had to stop these hobbies, mainly due to her back pain.

[12]On 14 February 2023 a medical report was obtained from Dr Wilkinson, a consultant in pain management (the February 2023 report). The February 2023 report recorded that on examination the area below the claimant’s left kneecap was very sensitive to touch. It also recorded that on examination of the claimant’s back this appeared “normal”.

[13]The February 2023 report recorded what the claimant had told Dr Wilkinson about the impact of her injury on her daily activities. The claimant told Dr Wilkinson that she struggled with intimacy and sleep because of the risk of direct contact on her knees. Contact on her knees by her husband would wake her up. The claimant told Dr Wilkinson that she gets pain in her right calf like a muscle spasm which tends to limit her walking to around 300 yards; she would struggle to kneel to do gardening and cannot do housework activities involving kneeling; she used to enjoy walking but tends not to do this now because of leg pain; and she used to enjoy photography but is reluctant to carry equipment now because of the risk of knocking against her knees.

[14]On 18 June 2024 a second medical report was obtained from Dr Wilkinson, (the June 2024 report). This was the most recent medical report in the file of productions. The June 2024 report recorded that the area below the claimant’s left kneecap continued to be very sensitive to touch and that the claimant had described this rather than being examined due to discomfort. The June 2024 report recorded that the examination of the claimant’s back was significantly different from last time with tenderness over the lower lumbar area. The June 2024 report recorded what the claimant had told Dr Wilkinson about the impact of her injury on her daily activities. The claimant told Dr Wilkinson that she continued to struggle with intimacy and sleep because of the risk of direct contact on her knees; contact on her knees by her husband also continues to wake her up. This was recorded in the June 2024 report as “a significant problem”. The same issues were recorded as in the February 2023 report with muscle spasm in the claimant’s calf which limited her walking to around 300 yards; difficulties in standing which tended to bring on a muscle spasm in her right calf and an inability to do gardening and housework tasks involving kneeling. It was recorded that the claimant can only drive for short distances up to about ten miles because of leg pain. The same issues were recorded with her hobbies as in the March 2023 report. These were that the claimant used to enjoy long walks but cannot do so now due to her leg pain; she has given up photography as she is unable to carry the equipment due to it knocking on her knees and whilst she will occasionally play with her grandchildren, she will not have them on her knee because of the sensitivity of her knees to touch.

[15]From around 1 September 2020 the claimant has experienced the following effects which are ongoing -a. she can’t kneel down;

b. she can't have children on her knee because they swing their legs and kick her knees / shins;

c. she has to walk very slowly / deliberately so she never touches anything with her knees;

d. her sex life is vastly different as she can’t have her knees / shins touching anything, e.g. her partner or the bed;

e. she cannot attend concerts which she used to do regularly as people bump into each other in busy places and she couldn’t bear it if her knees / shins were bumped;

f. she can’t do her garden because she can’t kneel or bend;

g. she can’t walk with shopping bags in case they hit her knees / shins;

h. she doesn’t always sleep well, particularly if her partner bumps into her knees / shins during the night.

[16]In July 2021 the claimant experienced a sudden onset of lower back pain. She was bed bound for approximately four months. From around July 2021, the claimant has experienced the following effects which are ongoing, in addition to those referred to in the paragraph above -a. her soleus muscles, located above the Achilles tendon area of her legs, have contracted and despite doing exercises prescribed by the physiotherapy team she cannot stretch them back to normal;

b. she can only walk around 300 yards when she used to walk for miles;

c. she can’t drive for more than approximately 10 miles and ends up very sore after this;

d. she can no longer drive to visit her family who live in Perth and cannot stay with her family there as she cannot climb the stairs to the bedrooms;

e. she cannot drive to visit places she loves such as Glencoe, or anywhere past the radius of approximately 10 miles from her house;

f. she is unable to get into her bath to have a shower and has had a walk-in shower installed.

[17]The claimant was prescribed co-codamol 30/500 painkillers in around July 2021. She continues to take them every day. If she did not do so, the pain she experiences would be more severe. She would need to go to bed for the day after about four hours. Observations on the on evidence

[18]The file of productions comprised the claimant’s disability impact statement, three occupational health reports and three consultant medical reports. The claimant was taken to sections of the various reports in her examination in chief and in cross examination.

[19]The Tribunal found the claimant’s evidence to be both reliable and credible. The Tribunal did not form the impression that the claimant in any way sought to mislead the Tribunal. The Tribunal was satisfied that the claimant did not seek to exaggerate the effect of the physical impairment relied upon in her disability impact statement or in the evidence she gave at this hearing. The claimant’s disability impact statement contained more detail than the various medical reports, about the effect of the physical impairment upon which she relied. This was to be expected given the purpose of the disability impact statement. The Tribunal was satisfied that the claimant suffered the effects of her physical impairment, as is noted in the findings in fact. She had told the various doctors about these effects for the purpose of producing the medical reports referred to. The Tribunal had no reason to doubt the claimant’s evidence in this regard. She had expanded upon the effects in her disability impact statement and again the Tribunal had no reason to doubt the evidence given. Submissions

[20]Both parties made brief oral submissions which are dealt with below where relevant.

Law

[21]The claimant has the burden of proof to establish disability status under the EqA.

[22]The EqA at section 6 defines disability: (1) A person (P) has a disability if — (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

[23]Supplementary provisions on disability status are contained in Schedule 1 to the EqA and in the Guidance on matters to be taken into account in determining questions relating to the definition of Disability (the Guidance).

[24]Paragraph 2 of Schedule 1, Part 1,EqA provides that: “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”

[25]There is no need to establish a medically diagnosed cause for the impairment, but there must be a finding that there is an impairment.

[26]In relation to normal day-to-day activities the Guidance provides: “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.”

[27]Substantial means “more than minor or trivial” - section 212(1) EqA.

[28]The adverse effect should be assessed having discounted any positive impact which is associated with any treatment regime.

[29]The focus should be on what an employee cannot do or can do only with difficulty, and not on what they can easily do.

[30]The Guidance deals with the meaning of a substantial adverse effect including the way in which an activity is carried out at paragraph B3. “Another factor to be considered when assessing whether the effect of an impairment is substantial is the way in which a person with that impairment carries out a normal day-to-day activity. The comparison should be with the way that the person might be expected to carry out the activity compared with someone who does not have the impairment”.

[31]The Guidance deals with the effects of treatment at paragraph B12 and B13. “The Act provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, ‘likely’ should be interpreted as meaning ‘could well happen..... B13. This provision applies even if the measures result in the effects being completely under control or not at all apparent. Where treatment is continuing it may be having the effect of masking or ameliorating a disability so that it does not have a substantial adverse effect. If the final outcome of such treatment cannot be determined, or if it is known that removal of the medical treatment would result in either a relapse or a worsened condition, it would be reasonable to disregard the medical treatment ....”

[32]The Guidance deals with the cumulative effects of an impairment and provides: “B6. A person may have more than one impairment, any one of which alone would not have a substantial effect. In such a case, account should be taken of whether the impairments together have a substantial effect overall on the person’s ability to carry out normal day-to-day activities. For example, a minor impairment which affects physical co-ordination and an irreversible but minor injury to a leg which affects mobility, when taken together, might have a substantial effect on the person’s ability to carry out certain normal day-to-day activities. The cumulative effect of more than one impairment should also be taken into account when determining whether the effect is long-term".

[33]An impairment will have a long-term effect only if it has lasted for at least 12 months, where the period for which it lasts, from the time of the first onset, is likely to be at least 12 months or which is likely to last for the rest of the life of the person affected (paragraph 2(1), Schedule 1). The Guidance clarifies that “likely” means “could well happen”. Discussion / decision

[34]In considering whether the claimant meets the definition of disability there are four questions for Tribunal. These are:(1) Does the claimant have a physical or mental impairment?

(2) Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?

(3) Is that effect substantial?

(4) Is that effect long-term? Impairment

[35]The Tribunal firstly considered the impairment relied upon, namely a physical impairment related to the claimant’s knees, back and legs.

[36]The Tribunal was satisfied that the claimant suffered from a physical impairment related to her knees, back and legs. The claimant’s evidence on this was supported by the medical reports to which the Tribunal was taken. Substantial adverse effect

[37]The Tribunal next considered whether at some stage this impairment had a substantial adverse effect on the claimant’s ability to carry out normal day-today activities.

[38]The Tribunal accepted that the claimant experienced difficulties from around the time of her fall at work on 1 September 2020. At that time, it was mainly her knees which were affected. The Tribunal was satisfied that walking, sex life, taking part in social activities, gardening, shopping and sleep were day to day activities. It was also satisfied that the claimant having difficulties in doing these activities amounted to a substantial adverse effect on her ability to carry out these activities. The effects were more than minor or trivial. Mr Hardman submitted that the effect on day-to-day activities from her knees was not substantial. The Tribunal did not agree with this submission. The claimant had to walk very slowly and deliberately to ensure she didn’t touch anything with her knees, her sex life was impacted as she couldn’t have her knees or her shins touching her partner or the bed; she was unable to attend concerts which she had previously enjoyed doing as a social activity, she was unable to do most gardening activities, she was unable to carry shopping bags and her sleep was impacted particularly if her partner bumped her knees or shins during the night.

[39]The Tribunal also considered the evidence in relation to the claimant’s back and leg difficulties. The Tribunal accepted that the claimant experienced difficulties related to her back and legs from around July 2021 when she became bed bound for around four months.

[40]The Tribunal was satisfied that walking, driving, travel, shopping and bathing were day to day activities. It was also satisfied that the claimant having difficulties in doing these activities amounted to a substantial adverse effect on her ability to carry out these activities. The effects were more than minor or trivial. The claimant could only walk around 300 yards, she could only drive within a radius of approximately 10 miles from her house, she could not travel for pleasure, she could not carry shopping bags, and she was unable to get into a bath.

[41]The Tribunal did not accept Mr Hardman’s submission that it was questionable whether the claimant suffered these adverse effects related to her back, on the basis that in the February 2023 report Dr Wilkinson recorded that on examination of the claimant’s back this appeared “normal”. It was put to the claimant in cross examination that her back condition waxed and waned. The claimant accepted candidly that her back pain was worse at some points than others. It was not as bad now as it had been in 2021 when she had been bed bound for four months. However, the claimant’s evidence, which the Tribunal accepted, was that since 2021 she has taken co-codamol 30/500 painkillers daily and that if she did not do so she would need to go to bed for the day, after about four hours. The EqA provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’. The Tribunal was satisfied that where the claimant’s back pain had waned or was not at its worst, the effects could well happen but for the co-codamol treatment. On examination the following year the claimant’s back was worse, the June 2024 report having recorded that on examination the claimant’s back was significantly different from last time with tenderness over the lower lumbar area. Long term

[42]Next the Tribunal asked whether the effects were long term. The effect of an impairment is long term if: it has lasted for at least 12 months; it is likely to last for at least 12 months; or it is likely to last for the rest of the life of the person affected. The Tribunal was satisfied that the effects of the impairment in so far as related to her knees had lasted for at least 12 months by September 2021 and continued throughout the relevant period. This is supported by the November 2022 report, the February 2023 report and the June 2024 report and the claimant’s own evidence which, as already set out, the Tribunal accepted. Likewise, the effects of the impairment in so far as related to her back and knees had lasted for at least 12 months by July 2022 and continued thereafter as also supported by the various reports and the claimant’s own evidence.

[43]Accordingly, the claimant was a disabled person in terms of section 6 EqA during the relevant period by reason of a physical impairment related to her knees, back and legs. J McCluskey