The judgment of the Tribunal is that in the relevant period the claimant did not have the protected characteristic of disability under section 6 of the Equality Act 2010. The claimant’s name is anonymised under Rule 50 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013.
REASONS
Reasons were given orally at the Hearing on 27 March 2024. 4106963/2023 C McManus JUDGMENT OF THE EMPLOYMENT TRIBUNAL The judgment of the Tribunal is the claimant has the protected characteristic of disability under section 6 of the Equality Act 2010. REASONS
Introduction
[1]The claim is for unlawful discrimination on the basis of the claimant having the protected characteristic of disability. At this Preliminary Hearing (‘PH’) I required to determine whether, in the relevant period, the claimant had the protected characteristic of disability in terms of section 6 the Equality Act 2010, in respect of the effects of the impairment of Type 2 Diabetes.[2]This PH commenced at a hearing on 15 February 2024 (‘the February PH’). For reasons set out below, that PH was continued to 27 March 2024 (‘the March PH’). My initial decision was issued orally, with reasons, at the conclusion of the March PH. That decision was that the claimant did not have disability status. Separately, for reasons given orally and now referred to below, I decided that it was appropriate in the circumstances that the claimant’s name be anonymised, on application of Rule 50 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 (‘the Tribunal Rules’).[3]The written Judgment in respect of the decision given orally was promulgated on 5 April 2024.[4]After issue of the oral judgment, I decided, on my own initiative, under Rule 73 of the Tribunal Rules, that I should reconsider my decision issued orally in respect of disability status. This Judgment includes my reconsideration of the decision on disability status issued orally at the conclusion of the March PH.[5]The reason for the reconsideration is that in the oral Judgment, having found that in the relevant period the claimant had not suffered substantial long term effects of her Type 2 Diabetes for at least 12 months, I had failed to go on to consider whether at any point during the relevant period the claimant’s exhaustion (found to be an effect of her Type 2 Diabetes) affected her to the extent that that effect was likely to be a substantial long term effect (i.e. to apply EqA Schedule 1, Para 2(1)(b), also taking into account Schedule 1 Para 5(1) EqA in respect of measures taken to correct the impairment).
Issues to be determined
[6]As set out in the letter issued to representatives on 5 April 2024 informing them of the reconsideration, under Rule 72(2) parties’ representatives were given until 19 April 2024 to comment on the reason for reconsideration. That comment was expected to be made on the basis of what was set out in the letter to representatives of 5 April informing of the reconsideration, and the reasons given orally.[7]In the circumstances of this case, I considered it to be in accordance with the overriding objective in Rule 2 of the Employment Tribunal (Constitution and Procedure) Regulations 2013 (‘The Tribunal Rules’) for the procedure to be as set out in the correspondence issued to parties’ representatives of 5 and 12 April 2024 and for this promulgated Judgment with written reasons to be the reconsidered Judgment. The reasons set out in this Judgment are in line with the oral decision, but then go on to consider the application of the EqA Schedule 1, Para 2(1)(b) ERA and Schedule 1 Para 5(1). Proceedings[8]The PH was arranged following a Case Management Preliminary Hearing (‘CMPH’) before EJ Whitcombe on 12 January 2024.[9]Evidence at the PH was heard from the claimant only. Reliance was placed on documents included in a Joint Bundle (‘JB1’), with page numbers 1 – 113. That JB1 included Occupation Health reports on the claimant which had been instructed by the respondent and extracts from the claimant’s GP records. The GP records in that JB1 referred to at the February PH had redactions.[10]During both the February PH and the March PH the claimant was often tearful and emotional. Accordingly, frequent breaks were taken during both hearings. Impact Statement[11]At the February PH, considerable time was spent dealing with a preliminary matter raised by the respondent’s representative. The respondent’s representative (Mr Bhatt) had set out their position in respect of this PH in skeleton submissions lodged prior to this PH. Mr Bhatt’s first submission was that the claimant’s disability impact statement was ‘procedurally defective’ and accordingly the claimant should not be permitted to rely on it, or in the alternative, the Tribunal should attach very little weight to the document. His position was that the disability impact statement fails to comply with the Practice Direction (‘PD’) and Presidential Guidance (‘PG’) applicable for the use of witness statements in Scotland. Mr Bhatt’s position was that at the CMPH in January, EJ Whitcombe had impressed upon the claimant and her representative the importance of complying with the PD and PG, being that the Tribunal may disregard the statement entirely or assign very little value to it. Mr Bhatt relied on the Note issued after that CMPH, stating that the disability impact statement “must” comply with the PD and PG, and containing links to those documents.[12]The primary position of the claimant’s representative (Ms Owusu – Agyei) was that the impact statement should be taken as the claimant’s evidence, without any examination in chief. Her alternative position was that questions should be allowed, based on that impact statement.[13]I indicated at the outset that in line with the overriding objective, I was minded to proceed with hearing the claimant’s evidence in accordance with the normal procedure in Employment Tribunals in Scotland. I heard parties’ representative’s submissions on this preliminary matter.[14]I considered the terms of the PH Note from the CMPH on 12 January 2024 (‘the CMPH Note’) and noted the position at paragraph 29 of that Note. I took into account the Practice Direction and Presidential Guidance dated 3 August 2022 on the use of witness statements in the Employment Tribunal in Scotland, which indicates that that use of witness statements is not the normal position in Scotland, and sets out the factors to consider when assessing whether to use them. I decided that oral evidence would be taken from the claimant in accordance with normal procedure before the Employment Tribunal in Scotland, i.e. from her answers to questions in examination in chief, cross examination and any re-examination on matters arising from cross.[15]Following further discussion, I noted that the impact witness statement appeared to have been prepared by the claimant’s representatives, rather than being in the claimant’s own words. Little weight was attached to the content of that statement and the claimant’s evidence was taken without her reference to that statement. That statement was generally consistent with the claimant’s position in her evidence. Supplementary Bundle[16]At the conclusion of the claimant’s cross – examination at the February PH, at around 4.55pm, the claimant’s representative sought that a Supplementary Bundle, running to 167 pages and containing website extracts, be allowed to be relied upon. The respondent’s representative objected to that. I took into account the respondent’s representative’s objections. I balanced the prejudice to the claimant of not allowing the Supplementary Bundle, with the prejudice to the respondent of allowing that Supplementary Bundle. I had already heard the claimant’s evidence on her beliefs on the cause of her symptoms, based on the internet research she had carried out. There was no medical report included within the Supplementary Bundle and the additional documents from online resources could only contain general information. Given the volume of Supplementary Bundle, the timing of the application for this to be allowed and in circumstances where we had heard the claimant’s evidence, including her evidence on the online research she had carried out, the prejudice to the respondent of allowing the Supplementary Bundle outweighed the prejudice to the claimant in not allowing this to be admitted as evidence. The respondent could not reasonably be expected to consider a 167 page Supplementary Bundle presented at 4.55pm, after the claimant’s cross examination.[17]There was no subsequent request that that evidence be allowed and be taken into account. Written Submissions[18]Given the time when the claimant’s evidence was concluded at the February PH, it was then agreed that both parties’ representatives would provide their written submissions, to an agreed timescale, with a written Judgment setting out the decision and reasons, being promulgated thereafter.[19]Following receipt of the claimant’s representative’s submissions, I directed that correspondence be sent to the parties’ representatives in the following terms: ‘In determining whether the claimant has the protective characteristic of disability, consideration will be given to The Disability: Equality Act 2010 - Guidance on matters to be taken into account in determining questions relating to the definition of disability must be taken into account (‘the Guidance’), in particular at A7, B4, B11, B12, B13, C2, C3, D3, D22,and D23. Parties’ representatives are also asked to consider the following authorities:• Aderemi v London and South Eastern Railway Ltd 2013 ICR 591, EAT;• Nissa v Waverly Education Foundation Ltd [2018] 11 WLUK 718;• Veitch v Red Sky Group Ltd;• Igweike v TSB Bank plc [2020] IRLR 267’ Both representatives then provided their comment on these authorities. Unredacted GP Records/Continued PH[20]Unusually, at the stage of providing his written submissions, the respondent’s representative relied upon an unredacted version of the claimant’s GP records. The claimant’s unredacted GP records were presented as an addendum to Mr Bhatt’s submissions. In summary, it was Mr Bhatt’s submission that the position in the unredacted GP records detrimentally affected the claimant’s credibility. On my direction, correspondence was sent from the Tribunal office to the parties’ representatives in the following terms: ‘EJ McManus notes the content of both representatives’ submissions, and that, as set out at para 31 of the respondent’s representative’s submissions, an unredacted set of the claimant’s GP records are said to be appended to those submissions. The respondent’s representative is asked to state what application he makes in respect of these unredacted records. If it is the respondent’s position that the unredacted GP records should be considered, they must first make an application for those records to be allowed in evidence. In such an application, they should set out the reasons why the unredacted records were not included in the Joint Bundle prepared for the Preliminary Hearing on 15 February 2024. It is noted that paragraph 29 of the respondent’s submissions records that the claimant had ‘initially disclosed unredacted copies of the medical records’. If an application is made for late inclusion of the unredacted GP records as additional evidence, that should confirm when the respondent’s representative were first disclosed those unredacted records. The respondent’s representative’s submissions are that both the content of what was redacted and the claimant’s evidence on the reasons for the redactions affect her credibility. The decision at the Preliminary Hearing can only be made on the basis of the evidence which was before the Tribunal at that Hearing. The claimant must have the opportunity to speak to the evidence which is taken into account in making the decision. That is particularly important where credibility may be a significant factor. If it is the respondent’s representative’s application that these unredacted records should be included as evidence at the Preliminary Hearing, then the claimant will require to be recalled to give her evidence on the nowunredacted sections. The respondent’s representative is asked to confirm their position in respect of any application made within 7 days.’[21]The respondent’s solicitor then made an application for the unredacted records to be allowed. They confirmed that the unredacted GP records had been sent to the respondent on 30 January 2024. In all the circumstances, including parties’ representatives’ positions set out in the respondent’s solicitor’s letter to the Tribunal of 1 March 2024, and in the attachment to the claimant’s solicitor’s email to the Tribunal of 12 March 2024, I decided that it was in furtherance of the overriding objective in Rule 2 of the Tribunal Rules for: - The unredacted GP records to be included in the evidence before the Tribunal at the PH on disability status. - The claimant to be recalled to give her evidence only on the position in the now unredacted parts of those GP records, and why she considered it appropriate for those parts to be redacted.[22]The continued PH on disability status was arranged to take place on 27 March 2024 (‘the March PH’). Given that the Final Hearing (‘FH’) in this case was scheduled to proceed in April 2024, my position to parties was that I would intend to issue an oral Judgment on the conclusion of the March PH.[23]On the conclusion of the submissions at the March PH, which was at around 4.45pm, I noted the time and that I had indicated previously that I would issue an oral judgment. It was the position of both representatives that they wished an oral judgment that evening. It was the position of both representatives that if an oral judgment, with reasons, were given on that evening, they would not intend to then request written reasons. Despite the late hour, I proceeded to consider the issues and deliver my oral judgment, which concluded at approximately 5.50pm.[24]Immediately after the oral judgment had been given, the claimant’s representative asked for written reasons. Given both representatives’ prior position, and that there had been no time after delivery of the oral judgment within which the claimant’s representative could have obtained her client’s instructions, I directed that the representative should take instructions from their client and revert within 7 days should written reasons be required. Bundles[25]There was delay in starting the March PH because the parties’ representatives had not liaised to agree what material should be before the Tribunal for the continued PH. Reliance was then made on a second Bundle (JB2), with pages 1 - 21, with the relevant sections of the claimant’s GP records being unredacted.
Issues
[26]I required to determine whether, at the relevant time, the claimant had the protected characteristic of disability, in terms of section 6 of the Equality Act 2010. In doing so, I required to determine:• Does the claimant have a mental and /or physical impairment?• If so, did such impairment have an adverse effect on her ability to carry out normal day to day activities?• If so, was that effect substantial?• If so, was the effect long term?[27]At the stage of submissions, it became apparent that parties were not in agreement as to the parameters of the relevant period. I therefore also required to determine the relevant period. Burden of Proof[28]As noted by Lord Hoffman in Re B (Children) [2008] UKHL 35: “If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof.”[29]The burden of proving disability lies with the claimant. The relevant test is ‘on the balance of probabilities’. Findings in fact[30]The following facts are material to the determination of the issues and are agreed or found on the evidence before me at this PH.[31]The claimant’s GP records show that the claimant has consulted her GP practice about a number of symptoms, since 2015. The claimant’s GP sought to treat the claimant’s symptoms. The claimant’s GP records show a history from 2021 of being certified as unfit for work because of work related stress.[32]The claimant had considered herself to be a fit individual. As part of her normal day to day activities, the claimant enjoyed practicing yoga and riding her bike. She had previously regularly cycled a 12 mile commute to work. The claimant had regularly cycled a 3 mile commute to work from her current home.[33]The Claimant has frequently taken paracetamol and / or Ibuprofen to treat or avoid headaches. Having decided to take daily painkillers, she no longer experienced the full extent of the headaches and did not then consult her GP about these headaches.[34]On 19/4/21 the claimant consulted a GP about pain in her right shoulder and intermittent foot pains. The claimant had been involved in a road traffic accident (‘RTA’) some 20 years previously. The Claimant consulted her GP about joint pain on a number of occasions, including on 15 April 2019 (JB1 /91) and 19 April 2021 (JB1 /90).[35]On 16/11/21 the claimant consulted a GP about vertigo symptoms. Her GP records for that date include “3yr Hx of vertigo Sx when lies down in bed or if looks up – Sx do seem to improve if doing yoga.”[36]In December 2021 the claimant commenced hormone replacement therapy (‘HRT’) for treatment of menopause symptoms. The claimant experienced some benefits from HRT. The HRT medication was changed on 28/2/23. Following the commencement of that therapy, the claimant had an improvement in some of her symptoms, particularly brain fog.[37]The claimant’s GP records show that on 28/2/23 the claimant was diagnosed with Type 2 diabetes mellitus. (JB1/76 & JB2/2). The record of the claimant’s phone discussion on 9/3/23 with the pharmacist within the Claimant’s GP practice (JB1/86). states “New diagnosis diabetes, has done some research. Has had a stressful time recently. Has some strange symptoms which she now wonders if could be due to high blood sugars: tired, tingling in hands and headaches. Would like to lose weight…Exercises and eats well….”.[38]On 13/3/23 the claimant attended her GP. The GP record of that visit states the problem as ‘newly diagnosed diabetes’. It then includes “upset + weepy – works for BBC and already in trouble re. time off work – lots of different issues including? ADHD”[39]On 15/3/23, the claimant attended a physiotherapist at her GP practice. The claimant sought advice at that time because she had previously noticed that her right hip ‘clicked’ when she was doing certain yoga positions and because around that time, the claimant’s sister was diagnosed with a medical condition which affected her hip joint. The claimant was concerned that the click may be a symptom of that condition. The entry in the claimant’s GP records for 15/3/23 records the problem as ‘Right hip clicking’ and states: “Pt consent to Rx. Noticed a ‘pop/click’ with yoga positions lying on back, full circle of LL, from outer range abd to almost at neutral, feels a click at anterior hip. No pain, deep into groin Sx, SIJ Sx. Only in clockwise direction. Hobbies – yoga a few time a week, bike no issues. No giving way, some balance issues linked with ADHD, no neurology, no LBP, no issues donning shoes/socks, getting out of bed/car. Systemically well, no unexplained weight loss/ fevers/ fatigue / unexplained lumps or bumps – sweats improved on HRT, actively trying to lose weight with DM Dx. Has sister with Paget’s disease – is wondering whether her Sx could be this, concerned will get worse. Obs – appears well. No shift, deformity, swelling. Lx FAROM – no limit or pain. Hip FAROM no limit or pain L=R, Nil TOP around troc bursal/hip flexor complex / glut med. Tight EOR FABER L+R no pain, -ve FADIR, -ve SIJ provocation tests no pain. Hip strength 5/5 no issues, SL bridge mildly more effort R no pain. Deadbug – fatigued R. Asked to reproduce movement – evident hip flexor tendon snap with full circumference of hip AROM. Likely insidious hip flexor click as moving through extremes of range – essentially normal examination otherwise, non-painful, full functional ROM. Provided with advice on strengthening and reassurance given. Added some specific hip flexor/ core strengthening ex’s to incorporate into yoga. Happy with this, worsening advice given to make further review.”[40]After diagnosis of Type 2 diabetes, the claimant initially sought to control that condition with diet. Her symptoms did not significantly improve. In March 2023 the claimant was affected by fatigue as a result of her Type 2 Diabetes. As at 15 March 2023, that fatigue / exhaustion did not affect the claimant to the extent that she could no longer exercise.[41]The respondent had referred the claimant to their Occupational Health (‘OH’) advisor. Following that referral, an OH report was sent to the respondent on 28/3/23 (JB1/ 97). That report accurately records the claimant’s health at that time. That report includes that the claimant “….reported being recently diagnosed with Type 2 Diabetes and ongoing work related stress, dull headaches, feels very fatigued, tingling in her hands in the morning, her vision is deteriorating, feels drowsy. she feels very fatigued… her vision is deteriorating, feels drowsy”. It also records “She reports difficultly coping at work and is struggling with self care, housework, cooking correspondence etc. and finding things difficult to organise. She was continuously tearful and in low mood, when narrating her circumstances today.” Then, under the heading ‘Response to questions’, “Her health is likely to improve with appropriate treatment and an early resolution of work related circumstances.”[42]On 30/3/23 the claimant had a GP telephone appointment. The record of that appointment includes: “Has been assessed by Occupational Health advisor – had telephone consult yesterday – suggested < A> should be off work at the moment until diabetes controlled – c/o TaTT.”[43]On 30/3/23, the claimant was certified by her GP as unfit to work, backdated from 28/3/23 and until 25/4/23 (JB1/ 79), because of “newly diagnosed Type 2 Diabetes.”[44]On 18/4/23 the claimant had a GP telephone appointment. That appointment related to menopausal symptoms. The record of that appointment noted there had been a change in HRT medication 6 weeks previously and that some changes “Likely relates to changes in HRT.”[45]On 25/5/23 the claimant attended her GP. The record for that appointment includes: “Hba1c has reduced substantially in 2 mths. Has made lifestyle changes. Has lost 5 pounds. Caution with sugar. Re-check hba1c and TC in 2 mnths and re-visit statin. Exercising.”[46]Hba1c is a blood test for measuring blood sugar levels. It is used for diagnosing and managing Diabetes.[47]A further report was instructed by the respondent from their OH provider. They provided a report on the claimant dated 30/5/23. That report (JB1/100 – 102) records “She also reports that she has been referred for further assessment of a potential neuro diverse condition. This can often be associated with the visual issues that she has been confirmed as having…”. The section under the heading ‘Responses to questions’ includes “It is hoped that better control of her diabetes and adjustments to support a neurodiversity will result in reduced stress and improved attendance.”[48]On 1/6/23 the claimant had a GP telephone appointment. That appointment related to menopausal symptoms.[49]On 14/7/23 the claimant had a GP telephone appointment. The record of that appointment includes the problem as being “Wishes to discuss diabetes diagnosis and effect on diabetes. Says told by Occ health that she should not work shifts. Is diet controlled at present, awaiting f/u bloods.” It records “Offered short IC due to stress but does not want this.”[50]On 26/7/23 the claimant had a telephone consultation with the pharmacist at her GP practice. Her GP records for that date record the position at that consultation, including: “Under a lot of stress at work, feels stress has worsened diabetes. Feeling unwell when working late, causing physical symptoms. Tearful and stressed about work.”[51]On 14/8/23 the respondent’s OH provider prepared a further report on the claimant (JB1 / 103 – 106). That report notes the claimant’s position as suffering from fatigue. It includes “Should the claimant’s diabetes deteriorate and require medication….”. While noting that the question is a legal one, the OH provider’s position in that report was that the claimant was likely to be covered by the Equality Act.[52]From 19 /8/23, the claimant was certified as unfit for work because of work related stress and Type 2 Diabetes. On 25/8/23 the claimant had a GP telephone appointment. The record of that appointment includes the problem as being “Feeling more stressed. The claimant was certified by her GP as unfit to work, backdated from 19/8/23 and until 9/9/23 because of “Work related stress/ Type 2 diabetes”.[53]On 8/9/23 the claimant had a telephone consultation with a GP. Her GP records for that date include: “Struggling with everything. Had covid infection and trying to recover”. The claimant was certified as unfit for work from 8/9/23 – 6/10/23 due to “work related stress/Type 2 diabetes.”[54]On 6/10/23 the claimant was certified by her GP as not fit for work from 6/10/23 to 11/11/23 because of ‘stress’.[55]On 11/10/23 the claimant was certified by her GP as unfit to work, backdated from 6/10/23 and until 11/11/23 because of “work related stress / diabetes.” From 11/10/23 the claimant was prescribed medication to control her Diabetes (Metformin). The claimant experienced some improvement in her symptoms after starting that medication.[56]On 10/11/23 the claimant had a GP telephone appointment. She was certified as unfit for work from 10/11/23 to 8/12/23 because of “work related stress / Type 2 diabetes.”[57]On 8/12/23 the respondent’s OH provider prepared a further report on the claimant (JB1 / 108 – 111). That report records the claimant’s position at that time as including “She is anxious if she will be able to maintain regular meal times, without which she feels incredibly tired and her concentration fails. She reports struggling with self-care, housework, cooking, correspondence etc and finding things difficult to organise.”[58]On 8/12/23 the claimant had a GP telephone appointment. She was certified as unfit for work from 8/12/23 to 19/1/24 because of “work related stress / Type 2 diabetes.”[59]On 16/1/24 the claimant had a GP telephone appointment. The ‘History’ section of that record of that appointment states: “Aware stress has had a huge impact on her – may have dismissed symptoms or attributed them all to stress rather than other issues Feels has withdrawn from many things – neglected things around house over past few years so does not invite people over – increases personal isolation Feels better now her diabetes is better controlled Aware when she eats (esp wrong things) gets a spike and falls asleep within an hour – feels this is similar to what happened at work when she made a mistake (occurred around 30 mins after eating on a meal break – drowsy).”[60]The claimant’s exhaustion is a symptom of her Type 2 Diabetes. Due to her exhaustion, she could not keep up with household tasks such as cooking and cleaning and became embarrassed about the state of her house, so stopped invited friends and family round to her home. Due to her exhaustion, the claimant stopped regularly using her bicycle to commute the 3 mile journey to work. She didn’t take steps to get her car repaired because she was concerned that if driving she would fall asleep at the wheel. Her relationships with others was affected. She often fell asleep during conversations, particularly after a meal.[61]In January 2024 the claimant was prescribed an alternative medication to manage her Type II Diabetes. Since commencing that medication, the claimant has experienced an improvement in her exhaustion. She has noticed that she no longer falls asleep when sitting after a meal.[62]Exhaustion was an effect of the claimant’s Type 2 Diabetes during the relevant period In addition to the exhaustion suffered as an effect of the claimant’s Type 2 Diabetes, the claimant suffers or has suffered from the other 7 symptoms relied upon at this PH. During the relevant period the claimant was affected by menopausal symptoms. During the relevant period the claimant was affected by brain fog. The claimant’s change in medication to control her Diabetes, which took effect in January 2024 has had a significant effect on her symptom of exhaustion.
Relevant law
[63]The Equality Act 2010 (‘EqA’) provides for certain ‘protected characteristics’. Disability is a protected characteristic under s 4 of the EqA. The definition of ‘disability’ is set out in s6, as follows: “6 (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.”[64]Section 212 defines the word “substantial” as meaning “more than minor or trivial”.[65]Part 1 of Schedule 1 EqA expands on the definition of disability, including the following paragraphs: “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. 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.
Relevant law
[66]The Disability: Equality Act 2010 - Guidance on matters to be taken into account in determining questions relating to the definition of disability (‘the Guidance’) must be taken into account. Equality Act 2010 Statutory Code of Practice 2011 (‘EHRC’) Appendix 1 66. Paragraph 7 - ‘What if individual has no medical diagnosis?’ “There is no need for a person to establish a medically diagnosed cause for their impairment. What it is important to consider is the effect of the impairment, not the cause.”[67]Paragraphs 8 – 10 – ‘What is a ‘substantial’ adverse effect? 8. A substantial adverse effect is something which is more than a minor or trivial effect. The requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people. 9. Account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment; or because of a loss of energy and motivation. 10. An impairment may not directly prevent someone from carrying out one or more normal day-to-day activities, but it may still have a substantial adverse long-term effect on how they carry out those activities. For example, where an impairment causes pain or fatigue in performing normal day-to-day activities, the person may have the capacity to do something but suffer pain in doing so; or the impairment might make the activity more than usually fatiguing so that the person might not be able to repeat the task over a sustained period of time.[68]Paragraphs 11 - ‘What is a ‘long term’ effect? ‘11. A long-term effect of an impairment is one:• which has lasted at least 12 months; or• where the total period for which it lasts is likely to be at least 12 months; or• which is likely to last for the rest of the life of the person affected.’[69]Paragraphs 14 - 15 – ‘What are ‘normal day to day activities’? ‘14. They are activities which are carried out by most men or women on a fairly regular and frequent basis. The term is not intended to include activities which are normal only for a particular person or group of people, such as playing a musical instrument, or participating in a sport to a professional standard, or performing a skilled or specialised task at work. However, someone who is affected in such a specialised way but is also affected in normal day-to-day activities would be covered by this part of the definition. 15. Day-to-day activities thus include – but are not limited to –activities such as walking, driving, using public transport, cooking, eating, lifting and carrying everyday objects, typing, writing (and taking exams), going to the toilet, talking, listening to conversations or music, reading, taking part in normal social interaction or forming social relationships, nourishing and caring for one’s self. Normal day-to-day activities also encompass the activities which are relevant to working life.’ Authorities[70]In Goodwin v Patent Office [1999] ICR 302, the EAT (at paragraph 308) said: ‘Section 1(1) defines the circumstances in which a person has a disability within the meaning of the Act. The words of the section require a tribunal to look at the evidence by reference to four different conditions:(1) The impairment condition. Does the applicant have an impairment which is either mental or physical?(2) The adverse effect condition. Does the impairment affect the applicant's ability to carry out normal day-to-day activities in one of the respects set out in paragraph 4(1) of Schedule 1 to the Act, and does it have an adverse effect?(3) The substantial condition. Is the adverse effect (upon the applicant's ability) substantial?(4) The long-term condition. Is the adverse effect (upon the applicant's ability) long-term?’[71]The Court of Appeal in Sullivan v Bury Street Capital [2022] IRLR 159, CA summarised the relevant questions that a tribunal must ask when determining disability (at para 38) as:(1) Was there an impairment?(2) What were its adverse effects?(3) Were they more than minor or trivial?(4) Was there a real possibility that they would continue for more than 12 months or that they would recur?[72]‘Likely’ means ‘could well happen’ (Boyle v SCA Packaging Ltd [2009] UKHL 37, [2009] IRLR 746, [2009] ICR 1056, per Lord Hope at para 4, and Lord Rodger at para 42, Baroness Hale at paras 70–72 (with whom Lord Neuberger agreed at para 81), Lord Brown at para 77).[73]The assessment of how long the adverse effect(s) of an impairment have lasted, or how long they are likely to last, is to be made at the time of the alleged discrimination (All Answers Ltd v W and another [2021] IRLR 612, CA, para [26] per Lewis LJ).[74]In Royal Borough of Greenwich v Syed EAT 0244/14 Mr Justice Wilkie observed: ‘[T]he question which the tribunal has to ask itself is not whether the mental health impairment was likely to last at least 12 months but whether the substantial adverse effect of the impairment was likely to last more than 12 months. That is a different question.’[75]The test is a functional and not a medical test. In Aderemi v London and South Eastern Railway Ltd 2013 ICR 591, the EAT commented on the definition of ‘substantial’ (paragraph 14): “Once he has established that there is an effect, that it is adverse, that it is an effect upon his ability, that is to carry out normal day-today activities, a Tribunal has then to assess whether that is or is not substantial. Here, however, it has to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other.”[76]And at paragraph 15: “As a matter of first principle when considering the statute, this requires the focus of the Tribunal to be not upon that which a Claimant can do but that upon which he cannot do. It is what he cannot do that requires to be assessed, to see whether it is truly trivial and insubstantial or whether it is not.”[77]In determining whether an adverse effect is substantial, a tribunal must compare the claimant’s ability to carry out normal day-to-day activities with the ability the claimant would have if not impaired. That is the approach taken by the EAT in Aderemi, as described at paragraphs 16 - 17: “16. We take that to be the approach which a reading of the statute would require. It is the approach as we see it which was adopted, albeit under the Disability Discrimination Act 1995, in Paterson [Paterson v Commissioner of Police of the Metropolis 2007 ICR 1522, EAT]. There, the headnote rightly reads: “The only proper approach to establishing whether the disadvantage was substantial is to compare the effect of the disability on the individual. This involves considering how he in fact carries out the activity compared with how he would do it if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are substantial. 17. By “compare the effect” we think it means “assess the effect”.’[78]In Nissa v Waverly Education Foundation Ltd [2018] 11 WLUK 718, then HHJ Eady QC held, in allowing the claimant’s appeal from the ET, that the ET had erred when: “In determining whether the effect of the Claimant’s impairments was “long-term”, the ET had focused on the question of diagnosis rather than the effects of the impairments and had adopted a narrow approach, rather than looking at the reality of risk - whether it could well happen - on a broad view of the evidence available.”[79]The Northern Ireland Court of Appeal in Veitch v Red Sky Group Ltd [2010] NICA 69 set out guidance on whether medical evidence is necessary (paragraph 19): “From the way in which it did express itself it appears that the Tribunal elevated the production of medical evidence on the issues at each stage of the Goodwin inquiry to the status of a necessary proof. This is to overstate the position. Although it heard submissions on the question of the extent of the appellant’s difficulties the Tribunal did not set out what evidence it had heard on those issues and it did not set out its findings of fact on those issues. It appears to have concluded that it should make no findings in respect of the claimed difficulties because of the absence of medical evidence. The presence or absence of medical evidence may be a matter of relevance to be taken into consideration in deciding what weight to put on evidence of claimed difficulties causing alleged disability but its absence does not of itself preclude a finding of fact that a person suffers from an impairment that has substantial long-term adverse effect. The absence of medical evidence may become of central importance in considering whether there is evidence of long-term adverse effect from an impairment. Frequently in the absence of such evidence a Tribunal would have insufficient material from which it could draw the conclusion that long-term effects had been demonstrated.”[80]In Igweike v TSB Bank plc [2020] IRLR 267, the EAT ( HHJ Auerbach) set out a useful review of the case law and found that “The Tribunal had not erred in not finding that the Claimant's grief reaction amounted to an impairment. It had not made the errors of thinking that there had to be a clinically well- recognised condition, or that an impairment could only be proved by medical evidence. It had properly considered that a natural reaction to adverse life events does not necessarily bespeak an impairment.”[81]At paragraph 16 of that decision, HHJ Auerbach stated: “16. I referred the parties to the decision in Royal Bank of Scotland v Morris UKEAT/0436/10 and, in particular, paragraph 63 of the Judgment so that the parties might make submissions with it in mind. The case sets out that in the case of mental impairment involving depression or cognate impairment contemporaneous medical notes or reports are not likely to be of assistance in answering questions about long term conditions. I consider that this authority demonstrates that the tribunal must be clear that it has sufficient evidence on issues relating to long term effects. That evidential basis must necessarily include expert evidence in circumstances where the tribunal is unable to draw clear conclusions from medical notes alone.”[82]At paragraph 35, it was noted that: “Walker v SITA Information Networking Computing Ltd [2013] UKEAT/0097/12 is one of a number of authorities which make the point that there is no requirement to identify the cause of the impairment although, if there is a lack of an apparent cause, that could potentially be regarded as evidentially significant, for example to an issue of whether a complainant's reported symptoms were genuine.” That referred to submissions made, as reflected at paragraph 8, in reference to “…..the error identified in Walker v SITA Information Networking Computing Ltd [2013] UKEAT/0097/12 of ‘….taking the approach that disability cannot be established in such a case unless the Tribunal can identify the cause of the postulated impairment, and conclude that this was a clinically well-recognised medical or psychiatric condition.”[83]Paragraph 40 of Igweike, quotes paragraph 55, of the EAT’s decision in Royal Bank of Scotland Plc v Morris [2011] UKEAT/0436/10: “55. The burden of proving disability lies on the claimant. There is no rule of law that that burden can only be discharged by adducing first-hand expert evidence, but difficult questions frequently arise in relation to mental impairment, and in Morgan v Staffordshire University [2002] ICR 475 this Tribunal, Lindsay P presiding, observed that "the existence or not of a mental impairment is very much a matter for qualified and informed medical opinion" (see para. 20 (5), at p. 485 AB); and it was held in that case that reference to the applicant's GP notes was insufficient to establish that she was suffering from a disabling depression (see in particular paras. 18-20, at pp. 482-4).’[84]HHJ Auerbach concluded at paragraphs 50 – 51 of Igweike: “50. Secondly, while there is no longer a rule of law that a mental impairment must be clinically well-recognised, nor is there any rule that such an impairment cannot ever be made out without medical evidence, nevertheless, as the discussion in both J v DLA Piper UK LLP and Morris explains, it is a practical fact that, in some cases of this type, the individual's own evidence may not be sufficient to satisfy the Tribunal of the existence of an impairment. In some cases, even contemporary medical notes or reports may not be sufficient, and expert evidence prepared for the purposes of the litigation may be needed. To say all of this is not to introduce either of these legal heresies by the back door. The question is a purely practical or evidential one, which is sensitive to the nature of the alleged disability, the facts, and the nature of the evidence, in the given case. 51. Returning to this Decision, I see nothing in the Judge's remarks, at the end of paragraph 3 or in paragraph 28, to suggest that he thought that, as a matter of law, medical evidence of a certain kind was a necessary requirement to establish an impairment. I also see no basis at all to infer that the Judge thought that it was still the law that a mental impairment had to be a clinically well-recognised illness. It seems to me that all that the Judge was doing, in paragraph 3, was remarking on the fact that there was, in this case, no contemporaneous medical evidence from the relevant period, which might, had it been present, have been relied upon evidentially to support the Claimant's case that there was an impairment.”[85]Even where there is a jointly instructed medical expert, ultimately the issue of whether a claimant has an impairment that amounts to a disability in terms of the Equality Act 2010 is one for the Employment Tribunal to determine (McKechnie Plastic Components v Grant EAT 02824/08). Equal Treatment Bench Book[86]In dealing with these proceedings I took into consideration the relevant guidance in the Equal Treatment Bench Book (‘the ETBB’), in particular I noted the section on ‘Diabetes’ in the ‘Glossary of Impairments’. Steps were taken to ensure that breaks were taken as required.[87]I noted: “This Glossary does not purport to give a medical diagnosis or listing of symptoms. It is derived from information available on sources such as NHS Choices or specialist disability organisations. The Glossary is intended only to provide an initial introduction, highlighting potential areas of difficulty in court proceedings where adjustments might be needed. The purpose of the Glossary is not to provide a basis for deciding: Whether an individual meets the definition of ‘disability’ under the Equality Act 2010….”[88]I did not use the ETBB as a basis for determining the issue in this case. The ETBB does not list symptoms likely to be caused by Type 2 diabetes. Submissions[89]Both representatives prepared written submissions, submitted to agreed timescales, following the February PH, and then further submissions at the March PH.[90]Both representatives were given the opportunity to provide written comments on the reconsideration, and did so by 19 April.[91]The claimant’s representative (Ms Owusu – Agyei) initially relied on:• College of Ripon & York St John v Dr C C Hobbs [2002] I.R.L.R. 185, EAT• All Answers Ltd v W and another [2021] IRLR 612, CA• Sullivan v Bury Street Capital [2022] IRLR 159, CA[92]In summary, it was Ms Owusu – Agyei’s initial submission that the claimant had the protected characteristic of disability on consideration of 8 symptoms relied on as effects of the impairment of Type 2 diabetes.[93]On my direction, both representatives provided their comments on:• Aderemi v London and South Eastern Railway Ltd 2013 ICR 591, EAT ;• Nissa v Waverly Education Foundation Ltd [2018] 11 WLUK 718;• Veitch v Red Sky Group Ltd [2010] NICA 69• Igweike v TSB Bank plc [2020] IRLR 267’[94]In addition to commenting on those authorities, the respondent’s representative (Mr Bhatt) relied on the following authorities:• Goodwin v Patent Office [1999] ICR 302;• Woodrup v London Borough of Southwark [2003] IRLR 111• Primaz v Carl Room Restaurants Ltd t/a McDonald’s Restraints Ltd and others [2022] IRLR 194;• Boyle v SCA Packaging Ltd [2009] ICR 1056,• McDougall v Richmond Adult Community College [2008] ICR 431, CA).• Morgan Stanley International v Posavec EAT 0209/13• All Answers Ltd v Mr W [2021] IRLR EWCA Civ 606• Square Global v Leonard [2020] IRLR EWHC 1008 (QB)[95]In summary, it was Mr Bhatt’s initial submission that the respondent did not accept that the claimant had provided sufficient evidence to establish that she was disabled pursuant to s6 EqA, by virtue of her Type 2 diabetes.[96]In addition to commenting on those authorities, the claimant’s representative then relied on the following authorities:• Abertawe Bro Morgannwg University Local Health Board v Morgan [2018] ICR 1194 (specifically paras 14 – 15)• J v DLA Piper UK LLP [2010] IRLR 936[97]Both representatives made reference to the statutory Guidance. Comments on the evidence[98]Generally, there are a number of factors taken into account when making findings in fact. These factors include:• internal consistency (i.e. that the individual’s version of events does not change throughout their evidence);• consistency of oral evidence with contemporaneous documentary evidence;• consistency of oral evidence with written case;• consistency with evidence from any other witnesses• openness in answering questions• any evasion or avoidance in answering questions• willingness to make appropriate concessions• demeanour and character (both to be approached with caution)[99]Consistency is an important aspect in the assessment of evidence. In making our findings, we took into account the guidance in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 2560 (Comm). There, following comments that: “.. The effect of this [litigation] process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be true or false, and to cause the witness's memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.” And that: “..such processes are largely unconscious and that the strength, vividness and apparent authenticity of memories is not a reliable measure of their truth.”[100]It was concluded that: “In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose – though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”[101]It is well established that ‘contemporary documents are always of the utmost importance’ (Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, at para 431). Applying the above guidance, greater significance was placed on the position in relevant contemporaneous documents, rather than versions of events presented from memory.[102]The extent of the medical evidence before me was the claimant’s GP records and the Occupational Health reports. The claimant conceded that she did not have medical reports or other evidence included in the Bundle to support her position that the symptoms she was describing can be caused by Type 2 diabetes. The claimant’s position was that she ‘didn’t know’ that she had to provide such evidence. The claimant was professionally represented throughout. On a number of occasions during her evidence, the claimant referred to having conducted online research. For the reasons set out above, under the subheading ‘Additional Bundle’, and because after the February PH there was no further request for that Additional Bundle to be included, I did not consider the content of that Additional Bundle.[103]The claimant spoke to the position in her medical records. There was then medical evidence before me. The claimant’s GP records show a diagnosis of Type 2 diabetes. There was no evidence before me to contradict that diagnosis.[104]The claimant made some concessions. The claimant conceded that some of her symptoms were more likely to have been caused by Menopause, (undiagnosed) neurodiversity and/or stress. The claimant accepted that she had had some benefit from commencing HRT. That indicates that at least part of the cause of some of her symptoms was the menopause. The claimant’s representatives relied solely on Type 2 diabetes in respect of disability status. The PH Note from the January CMPH makes that clear. Although in Ms Owusu – Agyei’s submissions, reliance was placed on all 8 symptoms experienced by the claimant, all of which were relied upon as being an effect of the claimant’s Type 2 Diabetes. All of these symptoms were relied upon by Ms Owusu – Agyei as having a substantial adverse effect on the claimant. That position was not supported by the claimant’s position in her evidence. In her evidence at the February PH the claimant conceded that at least some of the 8 symptoms may have been caused by something other than her Type 2 Diabetes. She did say that she considered that some of the symptoms (notably stress) were exacerbated by her Type 2 Diabetes. No medical evidence was relied upon to support that position. In her evidence, the claimant did not rely on the 8 symptoms as each individually having a substantial adverse affect on her.[105]In deciding that the claimant’s exhaustion was an effect of her Type 2 Diabetes, I attached weight to the claimant’s evidence that there had been a marked improvement in her symptom of exhaustion since beginning new medication for her Type 2 diabetes. At the February PH, the claimant’s evidence was that ‘a few weeks ago’ her GP changed her medication from Metformin. The claimant volunteered that information, during examination in chief, when taken to the list of medications in her medical records. She described being surprised when after starting that new medication she didn’t regularly fall asleep after a meal. At the February PH, the claimant did not give evidence on improvement of any other symptoms since that medication change. The claimant’s position at the March PH was that her cognitive function improved after commencing diabetes medication, with the biggest change being after commencement of the new medication in January 2024. It was further the claimant’s evidence at the March PH that ‘virtually all’ of the symptoms she relied on as being caused by her Type 2 Diabetes had improved since starting the new medication in January 24. Given the short timescale between the time of the medication changing and these PHs, and taking into account that it is likely that any effect of the new medication would not be immediate, I did not find that evidence to be inconsistent. However, the claimant did not prove on the balance of probabilities that all 8 of the symptoms relied upon were effects of her Type 2 Diabetes. On the balance of probabilities, the only symptom which the claimant proved was likely to be an effect of her Type 2 Diabetes was exhaustion / fatigue.[106]It was agreed between the parties that some of what had been redacted from the GP records was not relevant and had been properly redacted. I accepted the claimant’s position at the February PH that some of what was redacted was redacted by the claimant because it contained reference to some of her family members and their medical conditions. The claimant’s position at the March PH was “in my opinion, when I redacted them I didn’t see any relevance.” I accepted the claimant’s position that the redactions done by were “not done with any malicious intent”.[107]The findings in fact set out above include findings made following the March PH, on sight of the further redacted GP records. I accepted the respondent’s representative’s position that the entry in the claimant’s GP records of 15 / 3/ 23 is relevant to the issue before me. I accepted the claimant’s position that she did not seek to mislead the Tribunal by redacting that section of her GP records, or any other section. Although I accepted the claimant’s position at the March PH that the reason for her making the redactions was because she saw them as unrelated to the issue for this Tribunal, on the face of the entry at 15/3/23, it is relevant to the issue before me. I accepted the respondent’s representative’s reliance on Square Global v Leonard [2020] EWHC 1008 (QB), that the responsibility in respect of the extent of the redactions in the Bundle lies with the representatives. The unredacted GP records were in the hands of both parties’ solicitors in January 2024, but were not included in the Joint Bundle for the February PH. On application of the overriding objective in Rule 2 of the Tribunal Rules, it is in the interests of justice for the GP records to be considered, to the extent unredacted at the March PH.[108]The previously redacted entry in the claimant’s GP records for 15/3/23 is relevant to the issue before me because that entry references ‘fatigue’. On the face of it, fatigue is relevant to the effect of exhaustion which claimant relies upon. Even if taken at the highest point of the claimant’s evidence, that entry is relevant to the extent of the effect of exhaustion on the claimant’s day to day activities. Riding a bike and yoga were normal day to day activities for the claimant. That is why it is relevant for me to consider the effect of the claimant’s Type 2 Diabetes on these activities. The record at 15/3/23 is a contemporaneous record of what the claimant was reporting to a health professional at the time. I accepted that the ‘hip click’ was a historic matter and that the claimant had only sought medical input because of her sister’s diagnosis of a medical condition affecting her hip. I accepted that the mention of her sister was part of the reason why the claimant had redacted that 15/3/23 entry. At the March PH the claimant admitted that she was doing some yoga in March 2023. That is what is indicated in that 15/3/23 record. At the March PH the claimant conceded that her evidence at the February PH had been that she had been unable to do yoga.[109]The entry in the claimant’s GP records in respect of the telephone conversation with the GP practice’s pharmacist on 8/3/23 evidences that the claimant was exercising as at that time. That is consistent with the interpretation of the record on 15/3/23 that the claimant was doing yoga in March 2023.[110]One of the symptoms relied upon by the claimant as being caused by her Type 2 Diabetes is brain fog. Although I did not have the evidence before me to make a finding in fact that the cause of the claimant’s brain fog was her Type 2 Diabetes, I accepted and I do make a finding that the claimant suffers and has suffered from brain fog. As suggested by the respondent’s representative, that brain fog may have been caused by the claimant’s menopause and / or be a ‘Long Covid’ symptom. The claimant did not provide sufficient evidence to prove on the balance of probabilities that her symptom of brain fog was caused by her Type 2 Diabetes.[111]I carefully considered the evidence before me in this case. I took into account the documentary evidence and the claimant’s own evidence. I took into account that she was unclear on some dates and that she has brain fog. I did not have the benefit of a report from the claimant’s GP. There was no oral evidence other than the claimant’s own evidence. In considering the GP records, I proceeded on the basis that, on the face of it ‘last issued’ means the date when the medication was last issued by the GP and ‘change’ means a change in medication, including a change in dosage of the same medication, and a change in the time when that medication is to be taken. That is the interpretation which I took on the prima facie reading of the medical records, and without any expert evidence supporting the respondent’s representative’s interpretation. As there was no report from the claimant’s GP and no oral evidence from any medical expert I did not have the benefit of any expert interpretation of the medical records.[112]The claimant’s evidence was that she had stopped driving from January 2023, initially for financial reasons, because her car had not passed its’ MOT test. Her evidence was that later she did not take steps to get her car back ‘on the road’ because she was concerned that her exhaustion was affecting her to the extent that she was not fit to drive a car. The claimant was not clear about when she began to have that concern. Her evidence at the February PH was that she became concerned about falling asleep at the wheel or losing concentration and ending up on “auto pilot”, because of her exhaustion symptoms. The claimant’s evidence at the February PH was that she experienced lapses in memory and concentration, her communications with family and friends was affected by her frequently falling asleep during conversations, she was unable to complete DIY projects she had started in her home, she was unable to keep up with household chores and as a result, she was too embarrassed to invite friends or family to her home, her social life was affected. All of that was consistent with the position in the OH report of March 23. That evidence was consistent with the documentary evidence in the GP records and the OH reports. That evidence in relation to driving was not consistent with the claimant’s evidence at the February PH that her symptoms of exhaustion reached their worst as at April to September 2022, but had started before that date. Although I found the claimant to be a credible witness, I did not find her evidence to be entirely reliable in respect of her recollection of dates.[113]I had to decide this case based on the evidence before me. I could not ignore the content of the entry at 15/3/23 in the claimant’s GP records. Even if it was the case that the claimant felt well on that day, as was her position at the March PH, that record is not consistent with, as at 15/3/23, there having been a significant effect which had lasted for at least 12 months. I also took into account that the record of 15/3/23 is consistent with the position in the record of the phone appointment on 9/3/23 that the claimant ‘exercises and eats well’ On the evidence in the GP records, as at 15/3/23, the effect of the claimant’s exhaustion on her day to day activities was not significant, to the extent that she was still able to exercise. On that basis, as at March 2023, the exhaustion caused by the claimant’s Type 2 Diabetes did not have a significant effect on the claimant’s normal day to day activities[114]The claimant’s evidence on the effects of her exhaustion were that she would fall asleep during conversations with family and friends, and that for a period of over a year she did not drive her car and did not use her cycle, because of her exhaustion. That evidence was unchallenged at the February PH. To an extent, that evidence was challenged at the March PH.[115]The respondent’s position was that the relevant period was from 10 March 2023 to 15 August 2023. At the March PH, it was understood that the claimant’s representative’s position was that the relevant period was from June 23 and continued until submission of the ET1 on 14 November 2023.[116]I took into account the position at paragraph 20 of the CMPH Note, that: ‘The sole live issues in relation to the s.15 claim are therefore:a. whether the respondent’s belief that the claimant may have committed an act of misconduct arose from the claimant’s disability; andb. if so, whether the decision to commence disciplinary proceedings was a proportionate means of achieving a legitimate aim. It was agreed that the respondent’s case in this regard was sufficiently set out in the response.[117]On the basis of para 8 of the paper apart to the ET1 (JB1 / 15), the second disciplinary action taken by the respondent against the claimant was in connection with an incident on 7 June 2023. On that basis, and on application of (All Answers Ltd v W and another [2021] IRLR 612, CA, on the current case, the relevant dates are from 7 June 2023 to 14 November 2023. On those dates, the relevant period is from 7 June to 14 November 2023. Disability status[118]While noting that the focus is on the statutory definition, I had regard to the statutory Guidance on matters to be taken into account when determining questions relating to the definition of disability. I considered this Guidance in its entirety. I make reference below to paragraphs in the Guidance which I considered to be particularly relevant. Did the claimant have a physical or mental impairment?[119]The Guidance includes the following paragraphs: “A6. It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a 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.’ “A7. It is not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded. For example, liver disease as a result of alcohol dependency would count as an impairment, although an addiction to alcohol itself is expressly excluded from the scope of the definition of disability in the Act. What it is important to consider is the effect of an impairment, not its cause – provided that it is not an excluded condition.”[120]Although the examples in that Section A show that the focus should be on the effects of the impairment, rather than the diagnosis of the condition, in the circumstances of this case, I did not accept that Ms Owusu- Agyei’s submissions following the February PH that I must simply consider the effect of the impairment, not the cause. It is very significant to my decision that at the CMPH, where the claimant was professionally represented, the claimant’s position on disability status was presented as relying only on the effects of Type 2 Diabetes. The respondent is entitled to rely on that position. I did not accept Ms Owusu – Agyei’s submission that the question of disability is not confined by any medical diagnosis or the way in which a claimant confines her claim at a case management hearing.[121]Although Type 2 Diabetes was the only impairment which the claimant relied on in terms of having an impairment under section 6 EqA, her evidence was that she also suffered from a number of other conditions, including menopause, Meares Irlen Syndrome, dyslexia and an undiagnosed neurodiversity (possibly ADHD and / or ASD). The consequences of the limitation of the claimant’s position at the CMPH to reliance only on Type 2 Diabetes was that I required to consider whether the claimant met the statutory definition under section 6 with regard to my findings on the effects of the impairment of Type 2 Diabetes. I had to first consider what effect(s) the claimant had proved were caused by Type 2 Diabetes. I required to make findings in fact on whether the symptoms relied upon by the claimant did arise from her Type 2 diabetes, with regard to evidence before me and the burden of proof being on the claimant.[122]I accepted Mr Bhatt’s submission that where a claimant’s evidence on disability concerns a number of potential conditions and it is unclear which conditions may have led to their various symptoms, it is important that the Tribunal makes clear findings as to the nature of the disability and which symptoms are attributable to it. On the evidence before me, the only symptoms which the claimant proved, on the balance of probabilities, was attributable to the claimant’s Type 2 diabetes was exhaustion.[123]I accepted Mr Bhatt’s reliance on Primaz v Carl Room Restaurants Ltd t/a McDonald’s Restraints Ltd and others [2022] IRLR 194, EAT that it is not enough that a claimant believes that an impairment has an adverse effect. Mr Bhatt relied in particular on HJJ Auerbach’s comment at paragraph 62 of Primaz. The particular circumstances of that case are relevant to the EAT’s decision. It is appropriate to consider that whole paragraph: “62. I agree with Ms Anderson that the test is objective, as it is one of causation. The impairment has to be found by the tribunal to, in fact, have had the requisite effect. In many cases, the answer will be straightforward and uncontroversial. But where there is a dispute about it, then whether the impairment does or not does not have the claimed effect must be determined by the tribunal on the evidence before it. It is not enough that the claimant truly believes that it does. The tribunal must decide for itself. This means that, in a case where the claimant asserts that engaging in a certain activity will risk triggering or exacerbating some adverse effect of the impairment itself, such as bringing on a seizure or an adverse skin reaction or something of that sort, and that is disputed, the tribunal must consider whether it has some evidence that objectively makes good that contention.”[124]HJJ Auerbach went on to state at paragraphs 73 - 74: “73. Ultimately, I do not think the fact that the claimant acted in accordance with her own case and beliefs could be regarded as sufficient properly to make good the chain of causation, so as to establish that the epilepsy or the vitiligo had the requisite effect as required by section 6. To put it in the language of causation, on the evidence and findings made by the tribunal, these behaviours on the claimant’s part broke the chain of causation. To put it another way, the evidence that she adopted these behaviours did not add anything to her true underlying case, which was that the epilepsy and vitiligo were liable to be exacerbated by these activities, a case that the tribunal undoubtedly rejected.” I have been mindful of Mr Brown’s submission, that the respondent was arguing for a narrow minded view of disability, and that tribunals (and the EAT) should not fall into such a trap. But, whatever differing views there may be about its strengths and weaknesses, the tribunal was obliged to apply the legal definition of disability that Parliament has adopted. I do not think its findings that the claimant acted out of a genuine conviction were enough properly to support the conclusion, for the purposes of the section 6 definition, that the impairments of epilepsy and/or vitiligo had the requisite adverse effects on the activities in question. Ground 1 accordingly succeeds.’[125]I took into account Mr Bhatt’s reliance on Morgan Stanley International v Posavec EAT 0209/13. In that case, the claimant pleaded 2 conditions in support of her contention that she was disabled. In that case, the Tribunal found that her evidence amounted to a “pot-pourri of different conditions and symptoms which might or might not have been attributable to the 2 pleaded conditions”. The EAT held (at paragraph 28) that in those circumstances it was incumbent “on the Employment Judge in his reasons to identify what it was the Claimant was disabled by during the relevant period and what symptoms were or were not attributable to the pleaded or other conditions, in the workplace or elsewhere.”[126]I did not accept Mr Bhatt’s submission that the claimant had failed to provide rudimentary medical evidence such as an official diagnosis for type 2 diabetes and relevant blood test results. The GP records are medical evidence and confirm the diagnosis of Type 2 Diabetes. I accepted that there is no medical evidence before more to support the claimant’s position that all 8 symptoms which she relies on were caused by her Type 2 Diabetes. On the evidence before me, the claimant has not met the burden of proof in that regard. To that extent, I accepted Mr Bhatt’s reliance on Woodrup v London Borough of Southwark [2003] IRLR 111. There was no medical evidence before me to support the claimant’s position on all of the deduced effects of the claimant’s condition. The findings on fact were made on the basis of the claimant’s evidence, her GP records (redacted to the extent agreed at the March PH) and the OH reports.[127]I accepted Ms Owusu – Agyei’s reliance on College of Ripon & York St John v Dr C C Hobbs [2002] I.R.L.R. 185, EAT, particularly Lindsay J position at paragraphs 32-33: “Nor does anything in the Act or the Guidance expressly require that the primary task of the ascertainment of the presence or absence of physical impairment has to, or is likely to, involve any distinctions, scrupulously to be observed, between an underlying fault, shortcoming or defect of or in the body on the one hand and evidence of the manifestations or effects thereof on the other. The Act contemplates (certainly in relation to mental impairment) that an impairment can be something that results from an illness as opposed to itself being the illness — Schedule 1 para 1 (1). It can thus be cause or effect. No rigid distinction seems to be insisted on and the blurring which occurs in ordinary usage would seem to be something the Act is prepared to tolerate. Nor is there anything there to be found to restrict the Tribunal's ability, so familiar to Tribunals in other parts of discrimination law, to draw inferences…” “It was accordingly appropriate in our view, and not simplistic, for the Tribunal (using the language both of the Employment Tribunal itself in the case before us and the language of Rugamer) to ask itself whether there was evidence before it on which it could hold, directly or by ordinary reasonable inference, that there was something wrong with Dr Hobbs physically, something wrong with her body?”[128]When considering whether the symptoms relied upon were effects of the claimant’s Type 2 Diabetes, I attached significance to the claimant’s evidence of improvement since commencing new medication in January 2024. At the February PH the claimant’s evidence on her improvement since commencing that medication was only in respect of exhaustion. At the February PH, the claimant’s evidence on that improvement was not challenged by the respondent’s representative in cross examination. They relied on the claimant having not provided any documentary evidence to support her position that the medication had recently changed. Following the March PH, the respondent then relied on their general position that the claimant was not credible because of the redactions which she had made to her GP records and because her evidence at the February PH was inconsistent with the further unredacted GP records. It was not contested that there had been an improvement in the exhaustion symptom since the change in medication.[129]On the evidence before me, I found, on the balance of probabilities, that the claimant’s symptom of exhaustion had improved as a result of the change in medication to control her Type 2 Diabetes, in January 2024. On that basis, I decided that the exhaustion symptom and resultant effects of that symptom on the claimant’s day to day activities were more likely than not to be an effect of (i.e. to be caused by) her Type 2 diabetes. On the evidence before me and on the balance of probabilities the claimant did not prove that all 8 symptoms which she relied upon were effects of Type 2 diabetes. On the evidence before me, the only symptom which the claimant proved was an effect of her Type 2 Diabetes is exhaustion. That is not to say to that some or all of the other symptoms may be related to her Type 2 Diabetes, but the burden of proof is on the claimant and she has not provided evidence to me to prove that the other 7 symptoms relied upon are effects of her Type 2 diabetes. I accepted the respondent’s representative’s submission that on the evidence there may be other causes for the other 7 symptoms. Although the claimant’s evidence was that she did suffer from the other 7 symptoms, on her own evidence, those symptoms did not each have the same significant impact on the claimant’s day to day activities. Had I been satisfied that all 8 symptoms had been an effect of the claimant’s Type 2 diabetes, I would have considered the cumulative effect of them (with regard to the statutory Guidance Section C2). In circumstances where the claimant did not prove that the other 7 symptoms relied upon were caused by her Type 2 Diabetes, I did not then consider the effect of the other 7 symptoms on a cumulative basis. In these circumstances it was then not necessary for me to list all those other symptoms in this decision.[130]I did not accept Ms Owusu – Agyei’s submission at the March PH that I should find that the claimant was disabled by way of the effects of Type 2 diabetes, and/or impairments that include Type 2 diabetes, at the material times. I did not accept her submission that I should look at all symptoms and determine if the claimant was disabled. The parameters of the claimant’s case were clearly limited at the CMPH. It was therefore not appropriate for me to consider whether the claimant met the statutory definition in section 6 EqA because of stress and / or menopause. I accepted Mr Bhatt’s submission that the respondent is entitled to rely on the position of the claimant’s solicitor at the January CMPH. The Note issued following that CMPH clearly records at paragraph 17: ‘The claimant now confines her case to the effects of Type 2 diabetes.’[131]The claimant had the physical impairment of Type 2 diabetes. That condition was diagnosed on 28/2/23. The claimant had that physical impairment in the relevant period (June – November 2023).[132]Having found on the balance of probabilities that the symptom of exhaustion was caused by the claimant’s Type 2 diabetes, I considered the evidence on the effect of exhaustion on the claimant’s normal day to day activities. Did that impairment have an adverse effect on the claimant’s ability to carry out normal day-to-day activities?[133]I had regard to the meaning of ‘normal day to day activities’ in the Statutory Guidance, particularly at D2 – D6, D22 and D23. I had regard to the evidence, particularly as referenced in the ‘Comments on evidence’ and ‘Findings in Fact’ sections above. On the evidence before me, the claimant’s exhaustion symptom had an adverse effect on her ability to carry out her normal day to day activities. The claimant’s normal day to day activities included household chores such as cleaning, household DIY tasks, cooking, cycling (including cycling 3 miles commute between work and home), driving a car, yoga, having friends and family over to her house to socialise, having conversations with family and friends and working.[134]Yoga and cycling were part of the claimant’s normal day to day activities. Those activities included cleaning, cooking and socialising. I considered the evidence on the effect of the claimant’s exhaustion on her day to day activities (not limited to yoga and cycling). The claimant proved, on the balance of probabilities, that in the relevant period (June – November 2023) her normal day to day activities were affected by her exhaustion, which was an effect of her Type 2 Diabetes Was that effect substantial?[135]Section B of the Guidance covers the meaning of ‘substantial adverse effect’. I had particular regard to the Guidance at B1, B4, B9, B11, B12 and B13.[136]I took into account the approach in Aderemi, where the EAT said: “The tribunal then had to bear in mind the definition of substantial under s.212(1) which was more than minor or trivial. Unless a matter could be classified within the heading "trivial" or "insubstantial" it had to be treated as substantial.”[137]I had regard to the evidence, particularly as referenced in the ‘Comments on evidence’ and ‘Findings in Fact’ sections above. On the evidence before me, the exhaustion caused by the claimant’s impairment of Type 2 Diabetes had a substantial adverse effect on her ability to carry out her normal day-to-day activities. I accepted that the claimant’s day to day activities became limited because of her exhaustion, to an extent which was more than minor or trivial. Was the substantial adverse effect long term?[138]I accepted Mr Bhatt’s submission that the issue as to how long an impairment is likely to last should be determined as the date of the discriminatory act and not the date of the tribunal hearing (reliance on McDougall v Richmond Adult Community College [2008] ICR 431, CA).[139]On the evidence before me, taking into account the entry in the claimant’s GP records at 15/3/23, the claimant did not prove that as at 15 March 2023 the effect of exhaustion from her Type 2 diabetes had had a significant long term effect on her day to day activities. In my oral Judgment given at the March PH, in considering the evidence before me on the effect on the claimant of her symptom of exhaustion in the period from June 23 to November 23, I found that the effect of the impairment was not long term because, on the face of the evidence in the GP records from 15 March 2023, by the relevant period the substantial adverse effect had not lasted for at least 12 months (EqA 2010 Part 1 of Schedule 1 EqA). That was the basis for my decision issued in my oral judgment at the March PH, and my conclusion that the claimant then did not have the protected characteristic of disability in the relevant period.[140]As set out in my oral judgment, I did not find that the claimant had been dishonest before me. I accepted that she has sought to properly give her evidence to this Tribunal. I accepted that the claimant is affected to the extent that she claims. What the claimant had not proved is that all 8 symptoms relied upon were caused by the claimant’s Type 2 Diabetes, or that the substantial effect had, by the relevant period, lasted at least 12 months. I accepted that the effects were variable. Reason for reconsideration[141]The above reasons set out in this Judgment are in line with the oral decision issued at the conclusion of the March PH. In making that decision, I failed to consider the application of the EqA Schedule 1, Para 2(1)(b) and Schedule 1 Para 5(1): whether in the relevant period the substantial effect of the claimant was likely to last at least 12 months. I now make that consideration, with regard to the parties’ representatives’ submissions received in response to letter from the Tribunal of 5 April 2024.[142]I have considered the respondent’s representative’s objection to the reconsideration, as set out in their correspondence to the Tribunal of 19 April 2024. My reconsideration is in the interests of justice because in finding that in the relevant period the claimant had not suffered substantial long terms effects of her Type 2 Diabetes I had not properly considered the definition of ‘long term’ in terms of Schedule 1 para 2(1) (b) EqA. I reached that decision only on the basis that in the relevant period the substantial effect of exhaustion had not lasted for at least 12 months.[143]Having decided that it is in the interests of justice for my decision to be reconsidered, I have considered the representatives’ submissions on the reconsideration issue.[144]In my reconsideration I noted the questions set out in letter to the parties’ representatives of 5 April, being:(i) At any point during the relevant period (from June to November 2023) did the claimant’s exhaustion (found to be an effect of her Type 2 Diabetes) affect her to the extent that that effect was likely to be a substantial long term effect? - Yes(ii) If so, from what date? – 11 October 2023[145]In making this decision, I have carefully considered the guidance from the Court of Appeal in All Answers Ltd v Mr W [2021] IRLR EWCA Civ 606, particularly at para 26: “26. The question, therefore, is whether, as at the time of the alleged discriminatory acts, the effect of an impairment is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts. A tribunal is making an assessment, or prediction, as at the date of the alleged discrimination, as to whether the effect of an impairment was likely to last at least 12 months from that date. The tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did (or did not) last for 12 months. That is what the Court of Appeal decided in McDougall v Richmond Adult Community College: see per Pill LJ (with whom Sedley LJ agreed) at paragraphs 22 to 25 and Rimer LJ at paragraphs 30-35. That case involved the question of whether the effect of an impairment was likely to recur within the meaning of the predecessor to paragraph 2(2) of Schedule 1 to the 2010 Act. The same analysis must, however, apply to the interpretation of the phrase “likely to last at least 12 months” in paragraph 2(1)(b) of the Schedule. I note that that interpretation is consistent with paragraph C4 of the guidance issued by the Secretary of State under section 6(5) of the 2010 Act which states that in assessing the likelihood of an effect lasting for 12 months, “account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood”. 27. Against that background, the central issue in the present case is whether the employment tribunal did assess whether the effect of the claimants’ mental impairment, assessed as at 21 and 22 August 2018, was likely to last for at least 12 months.”[146]I accepted Ms Owusu – Agyei’s submission that with regard to the guidance in All Answers, the determination of disability status should be with regard to the time of the alleged discrimination. It is my understanding that no alleged discrimination is said to have occurred from March to June 2023. On the basis of the position in the paper apart to the ET1 alone (as I did not hear any evidence on the alleged discrimination), as I understand it, the alleged discrimination is said to have occurred in the period from 7 June – 14 November 2023 (being the date of submission of the ET1) The period from 7 June to 14 November 203 is then the relevant period. It is within those dates that the allegedly discriminatory acts are said to have occurred. I had regard to my findings on the substantial effect of exhaustion on the claimant’s normal day to day activities, within those relevant dates (referred to as ‘the relevant period’). I note that the relevant wording with regard to the extent of the effect is ‘substantial’ rather than ‘significant’. On application of All Answers, to the circumstances of this case, in this reconsideration I have considered the question of disability status with regard to the application of the relevant law between the relevant dates (i.e. in the relevant period), rather than in respect of a particular date (within that period or otherwise), as envisaged in the questions put to representatives in the letter of 5 April.[147]The claimant was unclear as to dates. The OH reports were uncontested and are significant in respect of the effect on the claimant’s normal day to day activities (not just yoga and cycling). From the OH reports, by the relevant period, there was a substantial effect on the claimant’s normal day to day activities. In all the facts and circumstances I found that that affect was because of the claimant’s exhaustion. I had found that the claimant’s exhaustion was caused by her Type 2 Diabetes.[148]Although there is no specific mention of exhaustion in the GP records after 15/3/23, those records are not inconsistent with the evidence that the claimant continued to suffer from exhaustion as at that time, or that that symptom worsened. The respondent’s representative relies on the OH reports as being ‘particularly important’. The respondent did not dispute that the OH reports were accurate records of how the claimant was affected at that time. All of those reports (as set out in the findings in fact) record the claimant suffering from exhaustion. The position in those OH reports is not inconsistent with the position in the claimant’s GP records. As set out in the findings in fact, the March 23 OH report states, under the heading ‘Response to questions’, “Her health is likely to improve with appropriate treatment and an early resolution of work related circumstances.” The OH advisor considered, with regard to the legal definition, that the claimant was likely to be disabled in terms of the Equality Act 2010. Although the later OH reports record the Type 2 Diabetes as improving, the effect of the impairment requires to be considered without the effect of treatment (Schedule 1 Para 5(1) EqA). The OH report from August 23 included “Should the claimant’s diabetes deteriorate and require medication….”. The claimant was prescribed medication to control her Diabetes (from 11/10/23). The fact that the claimant was unable to manage her Diabetes by lifestyle changes alone, and, in October 23, was commenced medication to manage her Diabetes, is consistent with the evidence of her exhaustion worsening. The fact that the claimant was certified by her GP as unfit for work from September 23 is consistent with her symptoms worsening (although not necessarily evidence of the symptom of exhaustion worsening). I did not accept the respondent’s representative’s submission that there was no evidence of the claimant’s exhaustion worsening / deteriorating. It was the claimant’s evidence at the March PH, that even after commencing medication to control her Type 2 Diabetes (which was in October 23), fatigue was “still a problem” and that at that time “when I was sitting at the table I literally could not keep my eyes open – I would fall asleep.” I considered that evidence to be significant. That was evidence of the fatigue / exhaustion having a substantial effect on the claimant’s day to day activities. On the evidence before me, I was satisfied that in the relevant period the claimant’s Type 2 Diabetes had a substantial effect on her day to day activities. That effect was to the extent that she became unable to keep up with household tasks such as cleaning. Her social life was substantially affected because her exhaustion caused her to frequently fall asleep during conversations and after meals. She moved from frequently commuting to and from work by cycling to not doing so. Even after financial reasons were not her primary concern, she did not take steps to repair her car because she was concerned that it she drove it she would be dangerous because of the risk of her falling asleep at the wheel. These are all substantial effects of her day to day activities. That evidence was not undermined by the evidence on the claimant being able to do some yoga and exercising in March 2023.[149]In my reconsideration, I have had regard to the Guidance section C, which covers ‘long term effects’ and includes:- ‘C3. The meaning of ‘likely’ is relevant when determining:• whether an impairment has a long-term effect (Sch1, Para 2(1), see also paragraph C1)…..• how an impairment should be treated for the purposes of the Act when the effects of that impairment are controlled or corrected by treatment or behaviour (Sch1, Para 5(1), see also paragraphs B7 to B17)’. In these contexts, ‘likely’, should be interpreted as meaning that it could well happen.’ ‘C4. In assessing the likelihood of an effect lasting for 12 months, account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood. Account should also be taken of both the typical length of such an effect on an individual, and any relevant factors specific to this individual (for example, general state of health or age).’[150]When considering how long the claimant’s Type 2 Diabetes was likely to affect her ability to undertake her normal day to day activities, I considered the facts and circumstances at the time of the alleged discrimination (the relevant period of June - November 2023). The uncontested position in the OH reports, were significant. I concluded that in all the circumstances in that relevant period the claimant’s Type 2 Diabetes had a substantial adverse effect on her normal day to day activities, which was likely to last at least 12 months. In the relevant period, the claimant had the protected characteristic of disability, with regard to the definition in section 6 EqA, and on application of Schedule 1, Para 2(1)(b) and Schedule 1 Para 5(1) and the Guidance, as referred to particularly above. Her claim for disability discrimination under the EqA can proceed.[151]In my reconsideration, I have taken into account the guidance of the Court of Appeal that “The tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did (or did not) last for 12 months.” In determining whether in the relevant period the effect of exhaustion was likely to last at least 12 months, I considered only the evidence and my findings on what had occurred during the relevant period. I did not consider the consequences of the claimant having changed medication in January 24 with regard to that issue. I considered that evidence on events in January 2024 only when determining, on the balance of probabilities, that the exhaustion symptom was an effect caused by the claimant’s Type 2 Diabetes.[152]In making this reconsideration, I have noted Ms Owusa- Agyei’s submissions with regard to the ‘relevant period’. As set out above, this is with reference to the dates within which the alleged discrimination took place. It is understood that as part of Ms Owusu-Agyei’s submissions on the reconsideration, her position is that the assessment should be from the date when the claimant told the respondent of her Type 2 Diabetes diagnosis (10 March 2023), on the basis that the assessment should be in the period within which the employer was ‘reasonably expected to comply with its duty’. The issue on which I advised representatives that I intended to reconsider my decision issued orally did not include reconsideration of the relevant dates. My decision on the relevant dates set out above is as my decision delivered orally at the conclusion of the March PH, and on the basis of the position in the ET1 with regard to the dates of the alleged discrimination. This reconsideration does not include a reconsideration of the scope of the relevant period. Further procedure[153]The claim will be scheduled for a Final Hearing, including remedy. Date listing letters will now be issued to fix the Final Hearing on these remaining claims. In their responses, representatives should provide information on the witnesses they intend to call at the Final Hearing.[154]Parties’ representatives should now liaise to seek to agree the List of Issues for determination by the Tribunal at this Final Hearing. Case Management Orders will be issued separately in respect of exchange of documents and other preparations for the Final Hearing.[155]For the avoidance of doubt, the findings in fact in this judgment relate only to the issue of disability status. They would not bind a future Tribunal dealing with the merits of the claim and considering issues such as the respondent’s knowledge of the claimant’s disability.
Introduction
[1]The name of respondent’s witness should be anonymised under Rule 50 of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013.[2]The respondent did not fail in a duty to make reasonable adjustments in respect of the claimant in terms of section 20 of the Equality Act 2010, and[3]The respondent did not discriminate against the claimant in consequence of a disability in terms of section 15 Equality Act 2010.[1]The claimant lodged a claim on 14 November 2023, alleging discrimination in relation to the protected characteristic of disability in respect of section 15 and section 20 Equality Act 2010 (‘EA’). The respondent did not accept that the claimant was a disabled person for the purposes of section 6 EA at the material time. A preliminary hearing took place on 15 February and 27 March 2024 in order to determine the issue of the claimant’s disability status.[2]A judgment was promulgated on 29 April 2024 which determined that the claimant had the protected characteristic of disability during the relevant period which was said to be between 7 June 2023 and 14 November 2023. The claimant was found to be disabled by reason of the impairment of exhaustion arising from the condition of Type 2 Diabetes. Detailed written reasons for that judgment were provided.[3]An anonymisation order was made in respect of the claimant on 28 March 2024. During the course of the final hearing, parties raised the issue of the extent to which that order was in respect of the preliminary hearing only or the entire proceedings. Having considered the matter, I informed parties that the order would be required for the entire proceedings as, were that not to be the case given that a judgment had already been promulgated, it would be possible to identify the claimant in respect of the preliminary hearing judgment if the claimant were identified in the judgment of the final hearing. Parties acknowledged the position. No application was made to revoke the order and I did not consider it in the interests of justice to do so.[4]The claimant gave evidence during the final hearing and the respondent called one witness. I highlighted to parties that were the respondent’s witness to be identified then it might be relatively easy to identify the claimant. I therefore formed the view that an anonymisation order should also be made in respect of the respondent’s witness. Parties recognised that this was a pragmatic approach and had no objection to such an order being made. The claimant will therefore be referred to as ‘A’ in this judgment and the respondent’s witness as ‘B’.[5]A joint bundle was lodged and an agreed list of issues was provided. Parties provided written submissions on the conclusion of the oral evidence and spoke to those submissions. Issues to be determined[6]The Tribunal was required to determine the following issues which had been identified by the parties and in respect of which the Tribunal agreed. In summary, those issues were:a. Were the claimant’s claims made within the statutory period and if not, should the Tribunal exercise its discretion to determine the claims?b. Did the respondent know, or should have been reasonably aware that the claimant had the protected characteristic of disability during the material period being 7 June to 14 November 2023?c. Did the decision on 15 August 2023 to convene a disciplinary hearing regarding an error made by the claimant on 7 June 2023 amount to discrimination arising from a disability in terms of section 15 EA?d. Did the respondent fail in a duty to make reasonable adjustments in respect of the claimant, specifically in relation to the requirement to work particular shifts?e. If the claimant’s claims succeed, should the Tribunal make an award in respect of injury to feelings and if so, in what amount? Findings in fact[7]Having considered the evidence, the documents to which reference was made and the submissions of the parties, the Tribunal found the following material facts to have been established.[8]A has worked for the respondent for over 30 years and has been employed in the role of Presentation Announcer/Director for many years. The role involves working a shift pattern with various shifts between the hours of 5am and 3am. The most recent shift pattern was introduced after extensive consultation and agreement with the relevant staff and trades unions. The introduction of a new shift pattern is an extremely complex exercise which requires to take into account the respondent’s broadcast obligations and the needs of individual staff.[9]Presentation Announcer/Directors will complete a log of any issues which arise during the course of a broadcast.[10]Two incidents arose in February 2018 in two days when A failed to go into circuit resulting in incorrect content being transmitted. Going into circuit involves the Presentation Announcer/Director taking control of the content which is being broadcast. Content may be broadcast from BBC One in London and interspersed with content from BBC Scotland. It is therefore necessary to go into circuit in order to ensure that the planned material is broadcast at the relevant time. A also worked on broadcasts of BBC Alba material. A’s duties included ensuring that the correct content was broadcast and that appropriate announcements and trails of other programmes were made at the relevant time. A had a discussion with B who is A’s line manager regarding these issues on 16 February 2018.[11]A meeting took place between A and B on 7 March 2018 as a result of a further error on the part of the claimant. The claimant suggested that a colleague had made a similar error. B investigated this allegation and found it not to be accurate. Following the meeting on 7 March, B sent an email to A on 9 March 2018 indicating that the email of 9 March which outlined these incidents would be kept on B’s records for 12 months and should any similar issues arise from failing to go into circuit or a lack of focus on the part of A within that period, a formal disciplinary interview would result.[12]A further email was sent to the claimant by B on 25 May 2018, once B had completed investigations into the allegation made by A regarding a colleague. The email referred to a conversation between A and B on 24 May 2018 and indicated that formal proceedings would not take place but if there were any similar issues within the next 12 months, a formal disciplinary route may be followed.[13]The claimant made an error on 26 October 2018 by coming out of circuit at the incorrect time resulting in planned content not being broadcast. The claimant was informed that a disciplinary investigation would be conducted into this issue. The claimant was then off work with work related stress between 12 December 2018 and 31 December 2018 and then 8 February 2019 and 22 February 2019.[14]A was referred to occupational health and a report was provided on 3 April 2019. The report indicated that A perceived that the relationship with B may be having an impact on A’s emotional wellbeing and that A felt that communication at work had broken down.[15]A disciplinary meeting in relation to the incident of 26 October 2018 took place on 17 May 2019. A was issued with a first written warning. The warning was not issued by B but another manager.[16]An issue arose in relation to a broadcast in early December 2019. It transpired that A had not been in circuit at the relevant time which had led to the broadcast of unplanned material. A had not made a log regarding this matter at the time. No action was taken regarding this matter.[17]An issue arose in relation to a broadcast on 11 April 2022. B asked members of the team to comment on what might have occurred. A indicated that there had been a failure to take control of the service after a break A had taken and apologised for the error. B indicated that the error was serious as it had resulted in the failure to transmit two Ofcom warnings (in relation to language and content) and therefore the matter would be investigated further.[18]The claimant was issued with a written warning to be held on file for 12 months on 26 August 2022 as a result of the incident on 11 April 2022. The warning was not issued by B but another manager.[19]An occupational health assessment took place in relation to A on 7 September 2022. This report indicated that there may have been medical issues associated with the claimant which could have contributed to the claimant’s error on 11 April 2022. No mention was made of the claimant’s diabetes and the claimant had not at that stage been diagnosed with diabetes.[20]The claimant appealed against the written warning issued on 26 August. That appeal was not upheld and the reasons were set out in a letter of 11 January 2023.[21]On 22 January 2023 an issue arose when the claimant did not follow the Harding process and as a result a programme which was not compliant with requirements was broadcast. The Harding process involves a warning to viewers regarding flashing images being included in a broadcast.[22]The claimant applied for an attachment (that is an internal transfer) to a role in Wales in February 2023. The respondent’s procedures indicate that a line manager’s consent should be obtained prior to any such application. A had not sought B’s consent for the application.[23]A sent B an email on the 10 March 2023 indicating that A’s doctor had diagnosed Type 2 Diabetes. A requested a referral to Occupational health to discuss the effects this may have. B replied requesting further information regarding A’s symptoms and how A felt they were impacting on work. A replied indicating “I have been suffering from pretty much the full spectrum of symptoms of the illness including fatigue, sleeping, headaches, thirst, disturbed vision, and disturbed sleep.” A also indicated that from the tests it appeared that “my BG has been high for at least a number of months.” A went on to indicate that it was not possible to identify how that would affect work and that was why the advice of OH was being sought.[24]Around this time the claimant informed a colleague of the claimant’s diagnosis and indicated that the respondent would have to do something about the shifts A was required to work now.[25]B made a referral of A to occupational health and an assessment took place on 28 March 2023. The report indicated that A was temporarily unfit for work but that A’s “health is likely to improve with appropriate treatment and an early resolution of work related circumstances. A further review would be useful in 8 to 12 weeks at your discretion.”[26]The claimant was then signed off by the GP as unfit for work between 28 March and 25 April 2023.[27]B wrote to A by email on 3 April 2023 alerting A that A’s 18 weeks’ full sick pay entitlement had been exhausted due to absences between 31 March 2022 and 25 April 2023. B also reminded A of an entitlement to 252 hours of additional long service leave and asked A if that should be allocated to A’s absence to allow A to maintain full pay.[28]A responded on 4 April indicating that going on half pay would cause some difficulty and stated “It is my belief that I could have returned to work earlier last year if I had had my OH referral earlier and its recommendations acted on earlier….In the meantime, I was wondering if there is any accommodation that can be made (e.g. other duties/redeployment) while I adjust to my diagnosis of Type 2 diabetes which is, I’m sure you are aware, classed as a disability? The main issues as far as I can see affecting my health are the lack of routine, disruption to my sleep pattern, and irregular meal breaks…I would far rather be working than not…it would be good to have a talk about these things to try to find the best way forward..”[29]B then indicated that efforts would be made to escalate A’s request to come back in other duties which in the event did not prove possible.[30]B sent an email to A on 11 April setting out a proposed return to work whereby the claimant would return to work for days that week to chat through strategy coaching that the claimant had started and then setting out a plan for the following week.[31]The claimant returned to work on 12 April, without having informed B in advance. When B queried whether A was at work, the claimant sent B an email on 12 April confirming a return to the office and raising some issues regarding the proposal made by B.[32]A meeting then took place between A and B on 13 April. In advance of that meeting B sent A an email setting out a more detailed proposal regarding shifts and meal breaks. The meeting on 13 April was constructive and friendly. Following that meeting, B sent A an email confirming what had been discussed and what action would be taken as a result.[33]When the claimant returned to work, the claimant did not indicate to B that there was any ongoing difficulty in carrying out duties, and there was no reason for B to be of the view that the claimant was suffering from an impairment which was likely to last long term and which could have a substantial adverse impact on A’s ability to perform normal day to day activities.[34]The claimant made an error on 14 May 2023 by going into circuit late. The effect of this error was that the beginning of a programme screening a live football match and appropriate announcements were not broadcast.[35]A further occupational health assessment took place regarding the claimant on 30 May 2023. The report noted that A had returned to work a few weeks after the initial assessment on an adjusted basis with no early or late shifts being worked. It went on to state “A has found management supportive in this regard so far, but was a little concerned that late shifts were being introduced in the next rota”. This referred to A having been included in a new rota for shifts which had not previously been proposed. This had been an error which was rectified by the respondent. The report recommended that A remain off early and late shifts for the time being to allow adjustment to diet and lifestyle factors. The claimant informed occupational health that no significant issues had arisen since return to work and made no reference to the error on 14 May.[36]On 2 June the claimant sent an email to a colleague with responsibility for arranging rotas raising a concern that the rota suggested the claimant should be working a couple of late shifts. The claimant also indicated that there had been an issue regarding taxis arriving late after BBC Scotland shifts (which finished at midnight). B was copied in to that email. The email indicated that the issue with working the BBC Scotland shift was whether the taxi arrived on time, and did not suggest that the shift itself could not be worked.[37]B replied on 5 June indicating that the OH report had just been received and that B was still considering it. B suggested a meeting would be arranged with A for the following week.[38]A replied to that email on 5 June indicating: “when we agreed to the shifts I have been working over the past couple of months I was at the very beginning of my journey with my diagnosis and I am learning more about how the condition is affecting me as time goes on…Having now experienced the shifts while being more aware of the effects of diabetes, there are some things that don’t work very well for me…. As you rightly say, I am able to eat and drink at my desk while carrying out my duties…However, I do need to take care that I am not grazing too much since the problem I have is that my blood sugars tend to rise and most foods contain sugars in some form another (luckily my preferred drink, water, is completely sugar free!) …As I explained to you last week, I am finding the more lengthy periods without breaks more problematic than specific times to eat…Exercise is a major tool in combatting high glucose levels…I need to be able to take breaks and use them to move around and help lower my blood sugars…The BBC Scotland shifts, due to the broadcast commitments and with the breaks you propose (I notice the times of the shift are different in your email to the rota), mean that I don’t get a break for over 6 hours when the Ts & Cs state that staff should get one within six hours…Is there any way we can find a way of managing this that will allow for a break at a better time?... ….I look forward to talking this through with you along with the other recommendations in the report.”[39]The claimant spent the weekend of 3 and 4 June away at an event in Dunoon, which included performing at an event on the Saturday evening until around 11.30pm.[40]On 7 June the claimant made an error at 7pm when a one minute news broadcast only broadcast for 15 seconds. The claimant had returned from a meal break at around 6.30pm and ought to have gone into circuit by 6.45pm but did not do so. Earlier that day the claimant had sent draft scripts to B earlier than was required and had given B no impression that A was suffering any difficulties at work. A had been active on social media during the shift.[41]An occupational health report action plan was put forward by B after discussion with A on 12 June. The claimant responded on 20 June indicating “I have read over the action plan and I’m afraid, as I said during our chat and in the email I sent you prior to the meeting I am finding the BBC Scotland late shifts (as they are called on the rota) problematic with regard to their effect on my health at this time….the occupational report clearly states that I should not be doing early or late shifts while stabilising my blood sugars…It does not specify shifts particular to BBC One, and I believe that the vast majority of people would consider a shift that finishes at half past midnight late…”[42]On 20 June B contacted A by email seeking to arrange an informal meeting on 23 June to discuss the error which had occurred on 7 June.[43]B contacted HR on 23 June requesting a follow up question be asked of occupational health regarding early and late shifts. B was due to go on annual leave and indicated that the claimant was due to be on two BBC Scotland late shifts during that period and that it was assumed pending clarification from OH that the claimant could work these shifts. B also provided another contact who could deal with matters should OH indicate that the claimant was not fit to work those shifts.[44]A contacted B’s line manager during B’s absence on leave asking whether there was a requirement to work late shifts. A stated “My concerns are twofold…One, these shifts aggravate the symptoms of my diabetes and make me unwell…And two, I am concerned that I may make further mistakes as a result of being unwell.” B’s line manager responded by saying “The advice from OH is not yet available, therefore, we need to continue to work on the basis that you will cover tomorrow's late shift, as scheduled.”[45]The occupational health doctor replied on 4 July to the query and stated: “The shift restrictions have certainly been helpful in managing underlying diabetes and should remain in place for at least another two months until the next clinical review”.[46]The claimant was not able to work a shift on 19 July and said that this was because “I am feeling unwell after last night’s late shift, not helped by problems with taxis…I am not fit for my shift today..I hope to be ok for tomorrow’s.”[47]B then sought further clarification from the OH doctor and set out the specific details of the shifts the claimant was working. The occupational health doctor was on annual leave and the respondent was informed that he would reply on his return on 24 July. B had a video meeting with the OH doctor on 24 July. During the meeting, the doctor indicated to B that he was more concerned at the impact of other conditions the claimant may have on the claimant’s work rather than the impact of diabetes. The doctor suggested that a double appointment be arranged with the claimant to discuss these issues and that the claimant be encouraged to continue with strategy coaching in the meantime. The doctor also confirmed that the adjustments which had been put in place were helpful and should be continued.[48]A meeting took place between A and B on 13 July 2023 to discuss the error made by the claimant on 7 June. The claimant was accompanied by a trade union representative at that meeting.[49]B emailed the claimant on 7 August regarding an issue which had arisen in relation to a broadcast on 6 August.[50]The claimant attended an occupational health consultation on 14 August. The report noted that the claimant’s glucose levels had been gradually improving. It also made reference to the claimant reporting feeling under stress due to an ongoing disciplinary process relating to workplace errors. In addition the claimant reported feeling significantly fatigued after the BBC Scotland late shifts. The report stated that late shifts should be avoided in particular shifts finishing late evening or after midnight. The doctor had been asked to comment on whether errors made by the claimant in recent times could have been caused by a medical reason. The doctor stated it wouldn’t be appropriate to retrospectively try and determine if there was a clinical cause for specific errors. The report went on to note that the claimant had indicated that the cause of the errors “may potentially have been a combination of factors including the neurodiverse condition, fatigue related to shifts and anxiety about self-management of diabetes as well as issues at work.”[51]On 15 August, B informed A that B had decided to progress the incident regarding 7 June to a formal hearing. The claimant had been working that day and went home ill, unable to complete the shift. The claimant was then signed off work from 19 August to 9 September because of “work related stress; type 2 diabetes”. The claimant was further signed off work for those reasons between 8 September and 9 October.[52]B wrote to the claimant on 8 September by email proposing an adjusted shift pattern which involved working no later than 10.10pm in any shift on the basis of two types of shifts.[53]The claimant was invited to an informal welfare meeting by letter dated 30 October as the claimant had still not returned to work. B agreed to the claimant being accompanied by a trade union representative at that meeting although that was not normal procedure.[54]The claimant lodged a claim at the Tribunal on 14 November 2023.[55]The claimant remained signed off work. An occupational health assessment took place on 8 December. The report recommended that the claimant could return to work in an alternative role with regular social hours (9am-5pm). An early resolution to the pending disciplinary proceedings was also recommended.[56]A further welfare meeting took place on 20 December 2023 at which time the claimant was again accompanied by a trade union representative. The issues regarding the recommendation made by occupational health were discussed.[57]The claimant returned to work around 1 February 2024[58]A disciplinary meeting concerning the issue of 7 June 2023 was held on 1 February 2024. The claimant was informed by letter dated 6 March 2024 that while it was right that a disciplinary investigation had taken place because of the seriousness of the allegations and because the claimant had been disciplined for similar issues in the past, the allegations were not upheld. The disciplining manager indicated that it was concluded that the claimant’s health had an impact on what happened on 7 June. Various recommendations were made by the disciplinary manager.[59]The claimant returned to work in a 9-5 basis and is now working shifts between 10am and 6pm. This involves the claimant working a 0.3 full time equivalent. The claimant continues to be paid full pay as has been the case throughout the adjusted shift pattern the claimant has been working. Observations on the evidence[60]The Tribunal only heard from two witnesses. It was clear to the Tribunal that A and B had known each other for a long time and had previously worked together prior to B becoming A’s line manager. It also seemed to the Tribunal that while there had previously been a close and positive relationship between the two, there had been tensions developing in the relationship for a number of years and in particular since the disciplinary investigation commenced by B in respect of A in 2018.[61]In addition, the claimant’s view of the impact the diagnosis of diabetes and other conditions which caused the claimant to have adverse symptoms had developed over time. The Tribunal came to the conclusion that the claimant’s perception of how type 2 diabetes had affected the claimant was different now to what it had been in 2023. The Tribunal does not suggest that the claimant was in any way deliberately revising events but that over time the claimant has, in reflecting on matters, sought to attribute symptoms of diabetes and other conditions as being the cause of errors made at work. The claimant has viewed past events through the lens of their current view regarding the impact the claimant’s health difficulties have had over the years.[62]The claimant was somewhat evasive in answering questions in cross examination and became on occasion argumentative. However, the Tribunal took into account that the claimant was clearly under a significant degree of stress when giving evidence.[63]While B also found giving evidence on these events a stressful and difficult experience, the Tribunal formed the view that the evidence given by B was credible and reliable. The Tribunal also found B to be a diligent and empathetic manager who did their best to support the claimant and take any steps that would allow the claimant to return to and remain at work.[64]There was little in the way of actual dispute on the evidence. The issues for determination related more to how that evidence should be interpreted.[65]It is also worth noting that no medical evidence other than the occupational health reports was provided to the Tribunal. There was no medical evidence provided for instance from the claimant’s GP or any specialist to provide guidance or information in relation to the various health issues the claimant had, or the extent to which the claimant’s performance at work was adversely impacted by any or all of the conditions or their specific symptoms. While the claimant gave evidence about what in their view was the cause of errors at work, there was no independent evidence in that regard. While the occupational health reports made reference to what the claimant had informed the doctor at the time, there was little in those reports by way of analysis of the separate conditions the claimant had either been diagnosed with or expected a diagnosis. Therefore, while it is not suggested that the claimant misrepresented the symptoms experienced, there was no evidence provided which supported the claimant’s opinions, which appeared to have developed over time and with a deepening understanding of the health challenges being faced.
Relevant law
[66]In terms of section 20 EA, an employer will be under a duty to make reasonable adjustments in circumstances where a person with a disability is placed at a disadvantage in comparison with persons who are not disabled in relation to a provision, criterion or practice applied by an employer. The duty to make reasonable adjustments will not arise unless the employer knew or ought to have known that the person was disabled and that the person was likely to be substantially disadvantaged by the provision, criterion or practice.[67]Factors to be considered in determining the extent to which an adjustment may be reasonable are set out in the EHRC Code of Practice on Employment at Chapter 6 of that Code.[68]Section 15 EA provides that discrimination will occur where a disabled person is treated unfavourably because of something arising in consequence of the person’s disability and where the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim. Discrimination will not arise where the employer shows that they did not and could not reasonably have known that the person was disabled. Discussion and decision Reasonable adjustments claim Did the respondent have actual or constructive knowledge that the claimant was a disabled person at the material time?[69]As set out above, an employer will only be under a duty to make reasonable adjustments in circumstances where they knew or ought to have known that an employee was disabled for the purposes of section 6 EA.[70]In this case the material time is between June and November 2023.[71]The claimant relies on various correspondence between the claimant and the respondent in seeking to demonstrate that the respondent knew that the claimant was disabled. In submissions, reference is made to the emails from the claimant on 10 and 13 March, that the claimant was signed off with diabetes related fatigue from 28 March, that an occupational health referral was made on 21 March asking whether the claimant’s concentration might be affected and that adjustments were required for the claimant on return to work. The claimant’s submissions also highlighted the duty of enquiry on the part of the respondent.[72]The claimant went off sick following an occupational health assessment on 28 March. That report made reference to the claimant having been recently diagnosed with Type 2 diabetes and work related stress. The subsequent fit note which was provided also made reference to Type 2 diabetes and workrelated stress. The claimant was signed off as unfit for work until 24 April. However, having been informed by B that A had exhausted their entitlement to full sick pay, A sought to return to work early. A was only off work for 2 weeks. The claimant had sought redeployment but this was not offered. The claimant returned to work on the basis that was agreed with B. That return to work was on the basis of 0.7 full time equivalent and the claimant was not being required to work the full contractual shift pattern. The claimant gave no indication to the respondent of unfitness for the duties or hours agreed. While the claimant did make reference to fluctuating symptoms including extreme tiredness, there was no suggestion that the claimant was not fit to return to work after only 2 weeks of absence.[73]The occupational health report of 30 May made reference to the claimant’s diabetes symptoms improving and that medication might be required in the future. It also noted that the claimant had informed occupational health that the claimant had not experienced any significant difficulties with the requirements of attention to detail and quick reactions necessary to perform their role. In addition the report indicated that the claimant was managing their duties and it was hoped that there should be little if any impact on the claimant’s performance other than restrictions on shift working at that time.[74]There was therefore nothing at this point to suggest that the claimant was suffering from an impairment which was likely to have a substantial and long term impact on their ability to perform normal day to day activities.[75]While the claimant raised some concerns in emails of 2 and 5 June in relation to working conditions, there was nothing in those emails which would suggest that the claimant was a disabled person for the purposes of section 6 EA. The claimant also raised issues in an email of 20 June. Occupational health advice was sought and the respondent was informed on 4 July that “the shift restrictions had been helpful in managing the claimant’s underlying diabetes and should remain in place for at least another two months until the next clinical review”. The claimant had 1 day’s sickness absence on 19 July having worked a BBC Scotland late shift the previous day. A further occupational health assessment took place on 11 August. The report which was dated 14 August, but which B did not receive until 25 August 2023 made reference to three separate conditions which the claimant had either been diagnosed with or was expecting a diagnosis. This report indicated that the claimant remained fit for work, but that late shifts should be avoided. The report also made reference to an improvement in the claimant’s diabetes control. In answer to the question as to whether mistakes made by the claimant might have been caused by a medical reason the report indicates that the claimant had suggested that the reason for the errors may have been a combination of factors including fatigue related to shifts, anxiety about self-management of diabetes, issues at work and neurodiversity.[76]The claimant had been off work sick from 15 August after being informed that a formal disciplinary investigation was being commenced in relation to the error made on 7 June.[77]The Tribunal formed the view that taking all of these circumstances into account and having regard to the authorities referred to by parties in their submissions, the respondent was not and could not have been reasonably aware that the claimant was disabled at this point by reason of exhaustion arising from Type 2 diabetes. The claimant had complex health issues. However, the disability relied upon in the present case only related to the impairment of exhaustion arising from Type 2 diabetes. The claimant was attending work, there was no indication from the claimant’s GP or occupational health that the claimant’s diabetes could not be brought under control and indeed the reports suggested that the symptoms were improving. The respondent was aware that the claimant was continuing to sing in a band and had performed at an event in Dunoon on the weekend before the error on 7 June. The fit notes which were provided in March and August stated the reasons for the claimant’s absence as being work-related stress and type 2 diabetes. It was clear that the claimant was suffering from stress as a result of the perceived deterioration in the relationship with B and the prospect of further disciplinary action. In addition, the Tribunal accepted B’s evidence that A appeared well while at work.[78]It was not until the report of 8 December that occupational health indicated that the claimant was covered by the EA by virtue of being a disabled person. However that report did not specify why the claimant was disabled other than by reference to “the medical condition(s)” as recorded above. There were three conditions recorded and the claimant was noted as having expressed anxiety at the prospect of returning to work due to the perception that B might deal with issues harshly.[79]Therefore the respondent was not and could not reasonably have been aware that the claimant was a disabled person between June and November 2023 by reason of the impairment of exhaustion arising from type 2 diabetes. There was therefore no duty to make reasonable adjustments in that regard. If so, was it a reasonable adjustment for the respondent to have permitted the claimant to work a stable shift pattern, and/or one which did not involve early or late shifts?[80]However the Tribunal went on to consider whether, if it was in error in relation to the issue of knowledge, the respondent had failed in a duty to make reasonable adjustments. It is recognised that it is not for an employee to specify what reasonable adjustments ought to be made. The duty is that of the employer to make reasonable adjustments. However that necessarily involves a degree of discussion between the parties in order to fully understand what the disadvantage being experienced by the employee is and what steps might be taken to address that disadvantage.[81]There is no dispute that the claimant’s contract required them to work a shift pattern which involved early, day and late shifts. The pattern was over an 8 week period in order to reflect the number of staff on the rota. There were 8 full time staff on the rota. The rota had been agreed after a long process of consultation with both staff and unions. It had been a complex exercise.[82]The respondent did make significant adjustments to the rota to accommodate the claimant’s needs. From April to August 2023, the claimant worked a shift pattern where the latest shift ended at midnight and that shift was only worked on 7 occasions over that period. The claimant’s hours were reduced by 30% but full pay was maintained.[83]The claimant suggested that what would have been a reasonable adjustment would have been for the claimant to be placed on a stable shift pattern involving 9-5pm working or something similar within a reasonable period from 6 June 2023 for a period of 2 to 3 weeks.[84]The Tribunal concluded that this was not a reasonable adjustment. There was no medical evidence that the claimant could not work evenings and the claimant did not suggest to the respondent that she couldn’t work evenings at that stage. The claimant did not suggest that she would only be able to work the same shift every day. The medical information suggested that the claimant’s diabetes symptoms were improving once there had been a diagnosis. The claimant’s claim did not suggest that the reasonable adjustment now being proposed would involve a change to the claimant’s contractual arrangements. What seems to be suggested is that the claimant should have only been required to work 30% contractual hours while being paid at 100%. While the Tribunal is not suggesting that this could never be a reasonable adjustment, in the present circumstances it was clear that the claimant was very concerned to maintain full pay. The claimant’s sickness absence from August resulted in full pay being paid.[85]Moreover, it was not clear to the Tribunal that the provision of such a shift pattern for a 2-3 week period would be effective in preventing any substantial disadvantage. There was simply no evidence that this would be the case. In addition, under cross examination the claimant did not seem clear as to why a period of 2-3 weeks was being proposed and gave no evidence as to in what way this would have removed any substantial disadvantage. Rather the claimant stated when pressed on the issue “I didn’t know myself what would work, I was relying on advice from OH.” Occupational health did not at this stage make any suggestion similar to this proposal. The claimant’s main concern appeared to be related to being able to have a proper break for food rather than the actual time of the shift being worked.[86]The respondent also advanced various reasons why such an adjustment would not be reasonable. For instance the BBC charter requires that the diversity of viewers is reflected in the voices heard on the channel. If the claimant only worked day time, then that would be the only voice heard over the period. The respondent would have to pay freelance staff to cover the hours which could not be covered by the claimant’s colleagues. The claimant’s colleagues shift patterns would have to be adjusted and they would have to work additional late shifts.[87]The Tribunal is also mindful that it should consider what was reasonable at the time and not what has happened subsequently. The claimant is now said to be working a pattern of shifts from 10am-6pm, which is a reduction of 70% in contractual hours. It is not known how long this pattern is to be maintained.[88]In addition if the adjustment ought to have been made from June 2023, notwithstanding the claimant’s agreement to working the pattern which had been proposed at that time, then the claimant’s claim is out of time. There was no evidence that the adjustment should have been made at any earlier stage. The claimant was only at work until 15 August and then went off sick following being advised that a disciplinary hearing was taking place. It was not suggested that a change in shift pattern at that stage would have resulted in the claimant returning to work.[89]However, even were the claimant’s claim to have been lodged in time, the Tribunal is of the view that it is bound to fail. The Tribunal’s conclusion is that in so far as the respondent was under a duty to make reasonable adjustments, it complied with that duty by agreeing with the claimant to an amended shift pattern. The respondent followed occupational health advice. In addition they did not simply blindly follow that advice and sought clarification and regular updates. This therefore seemed to the Tribunal to be more in line with the facts of Donelien v Liberta [2018] EWCA Civ 129 rather than Gallop v Newport City Council [2013] EWCA Civ 1583. The proposal that the claimant work a stable shift pattern within normal office hours for a period of 2 to 3 weeks while remaining on full pay was not, in the particular circumstances of this case, a reasonable adjustment. Discrimination arising from a disability[90]The Tribunal then went on to consider the claimant’s claim that the decision that she be required to attend a disciplinary hearing amounted to discrimination arising from a disability. Did the respondent know or should reasonably have known that the claimant was a disabled person at the material time?[91]The claimant was informed on 15 August 2023 that B had decided to progress to a formal hearing regarding the error made by the claimant on 7 June. The claimant’s position is that this decision was a discriminatory act. For the reasons stated in relation to the question of reasonable adjustments, the Tribunal concluded that the respondent did not know that the claimant was a disabled person at that point. It had still not received the subsequent occupational health report and as set out above even had that report being received by the time of the decision being taken, the respondent’s knowledge about the claimant’s condition was not such that it ought to have viewed exhaustion suffered by the claimant from diabetes type 2 as amounting to a disability. If so, did the respondent treat the claimant unfavourably because of something arising in consequence of the claimant’s disability?[92]However in the event that the Tribunal is in error in relation to the question of knowledge, the Tribunal went on to consider whether the decision amounted to unfavourable treatment arising in consequence of the claimant’s disability.[93]The claimant’s argument appeared to be that the mistake made on 7 June was made because of exhaustion which was something arising from the claimant’s disability. The Tribunal was not at all satisfied that the error made by the claimant on 7 June was caused in any material sense by exhaustion arising from the claimant’s disability. There was no evidence to suggest that exhaustion was the reason for the error other than that this was the opinion subsequently formed by the claimant as the reason for the error. The claimant gave no indication of unfitness to work on that day. Occupational health advice did not suggest that the claimant was unfit to work. The claimant did not refer to exhaustion in the log completed in relation to the incident. The claimant had been performing at an event on the weekend before the error. The claimant had sent scripts for checking earlier that day that had been required and gave no indication of suffering from exhaustion. The error itself was that the claimant did not ‘go into circuit’, that is take control of what was being broadcast, until 45 seconds into a one minute news bulletin. The Tribunal accepted that it would have been appropriate to have gone into circuit at least 15 minutes prior to the broadcast. There was no suggestion that the claimant had fallen asleep due to exhaustion. The claimant had returned from a meal break at around 6.30pm. Even if the Tribunal were to accept the claimant’s evidence that blood sugars can peak in the hour after eating and that this can cause tiredness, this does not explain why the claimant did not take control of the broadcast until 45 seconds after it had commenced. The claimant suggested that fatigue might have been exacerbated by having worked a Scotland late shift the previous day. However, B’s evidence was that the claimant had sent a ‘perky email’ with the draft scripts, and there was no reason to believe that the claimant was too tired to carry out the necessary duties. Therefore the Tribunal did not accept that there was any evidence that the error had in any material respect, been caused by the claimant’s disability. If so, was this a proportionate means of achieving a legitimate aim?[94]The Tribunal noted that the claimant was not complaining that disciplinary action had been taken in relation to this matter, simply that the issue would proceed to a disciplinary hearing which would allow the respondent to consider all of the evidence and determine whether any formal action should be taken. There was no dispute that the error was a serious one. A news bulletin had not been broadcast by the national broadcasting company. The claimant had made a number of similar errors in the past. The respondent was entitled to explore in detail what the reasons for that error had been. The respondent was entitled to consider whether any action should be taken against the claimant as a result of the error. In the event, no disciplinary action was taken and it was subsequently accepted that the claimant’s health in general rather than any specific symptom arising from type 2 diabetes was a contributory factor. Therefore, even if it could be said that the error was caused by claimant’s disability, the respondent had a legitimate aim in exploring the reasons for the error and pursued this legitimate aim in a proportionate manner. In so far as it could be said that the claimant had been subjected to discriminatory treatment, that treatment was justified.[95]The claimant’s claims therefore fail in their entirely and are dismissed. A Jones