Ms H C A Leung v The Secretary of State For Justice: 6003725/2024 and 6004247/2024
EMPLOYMENT TRIBUNALS
Case No 6003725/2024, 6004247/2024, 6003752/2024
Between
Ms H C A LeungClaimantThe Secretary of State For JusticeRespondent
Before
Employment Judge P CadneyIn person for claimantMs S Hornblower (instructed by Counsel) for respondentDate 29 July 2025
REASONS
[1]Respondent - The claimant has submitted two claims. The first (6003725/24) was originally brought against HMP Winchester (properly the SoS for Justice) and brought claims of disability discrimination. The second (6004247/24) was initially brought against an individual respondent (Mr A Kerr). The case came before EJ Oldroyd for a TCMPH on 25th February 2025. He recorded that the SOS, although not named as a respondent in claim 2 accepted that if the claim was made out it would be vicariously liable. EJ Oldroyd directed that unless the claimant objected that the SOS would be added as the respondent to claim 2 in substitution for the individual respondent. She has confirmed that she does not object and so the sole respondent in both claims is the SOS for Justice. 1 of 7[2]EJ Oldroyd also directed that the case be listed for a preliminary hearing today: i) To determine the issue of whether the claimant was a disabled person within the meaning of s6 Equality Act at the material times; ii) To give further case management directions.[3]Background Facts - The claimant was employed as a prison officer at HMP Winchester from 15th May 2023. On 3rd December 2023 she suffered a head injury at work which led to post-concussion syndrome which caused her to be off work from that point, save for one day on which she attempted an unsuccessful return. On 8th April 2024 she was dismissed having failed to achieve a satisfactory attendance record / medical inefficiency during her probationary period.[4]Claims - The claimant has confirmed that she is bringing claims of: i) Discrimination arising from disability (s15 Equality Act 2010) - On the basis that her dismissal was unfavourable treatment, caused by something arising from disability (her sickness absence) during her probationary period; and ii) The failure to make reasonable adjustments (s20/21 Equality Act 2010) - In the failure to provide a sufficient opportunity to recover and/or a phased return to work and/or redeployment to non-operational duties.[5]Disability – The claimant relies on: i) Post-Concussion Syndrome.[6]In order to be a disabled person within the meaning of s6 Equality Act 2010 the claimant must fulfil three elements of the statutory test:- i) She must have a physical or mental impairment; which ii) Causes a substantial adverse effect on normal day to day activities; and which iii) Is long term; meaning that it has lasted or is likely to last for twelve months (meaning that it “could well happen” that it lasts for twelve months as judged at the time of the act of discrimination).[7]The respondent accepts that the claimant satisfied the statutory definition during the period 3rd December 2023 to 8th April 2024 in that it accepts that the post-concussion syndrome had a substantial effect on her ability to carry out normal day to day activities. The only issue is whether the impairment was long term within the statutory meaning (see below).[8]A general summary of the overall structure of the law is set out below and specific points relevant to this case are dealt with in relation to the individual issues: 2 of 7 The Relevant Law Section 6 of the Equality Act provides as follows: a person (P) has a disability ifP has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities. Schedule 1 to the Equality Act 2010 contains further clarification on the matters to consider when determining disability and provides in so far as is relevant: Long-term effects 2 (1) The effect of an impairment is long-term if— it has lasted for at least 12 months, it is likely to last for at least 12 months, or it is likely to last for the rest of the life of the person affected. Impairment The meaning of impairment is dealt with at A3 of the Guidance which provides: “the term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness.” In order to determine whether a claimant has a disability the tribunal should consider four questions (see Goodwin v Patent Office [1999] ICR 302, EAT):- i) did the claimant have a mental and/or physical impairment? (the ‘impairment condition’) ii) did the impairment affect the claimant’s ability to carry out normal day-today activities? (the ‘adverse effect condition’) iii) was the adverse condition substantial? (the ‘substantial condition’), iv) and was the adverse condition long term? (the ‘long-term condition’). It will not always be essential for a tribunal to identify a specific ‘impairment’ if the existence of one can be established from the evidence of an adverse effect on the claimant’s abilities — J v DLA Piper UK LLP 2010 ICR 1052, EAT. Similarly, it is not always necessary to identify an underlying disease or trauma where a claimant’s symptoms clearly indicate that he or she is suffering a physical impairment — College of Ripon and York St John v Hobbs 2002 IRLR 185, EAT Substantial - The meaning of ‘substantial adverse effect’ is considered at section 212(2) Equality Act 2010 and paragraph B1 of the Guidance which provides “a substantial effect is one that is more than a minor or trivial effect”. Effect on normal day to day activities - The Tribunal’s focus, when considering adverse effects upon day-to-day activities, must necessarily be upon that which claimant maintains he cannot do as a result of his physical or mental impairment” 3 of 7 (see Aderimi v London and South Eastern Railway Ltd UKEAT/0316/12, [2013] ICR 591). Day-to-day activities include normal day-to-day activities and professional work activities, even if there is no substantial adverse effect on activities outside work or the particular job (see Igweike v TSB Bank Plc [2020] IRLR 267). In conducting that assessment, the tribunal should disregard the effects of treatment (see Guidance at sections B12 to B-17).
The Relevant Law
[9]Claimant’s Evidence – In her DIS and a second separate statement, the claimant describes initial symptoms of persistent headaches, dizziness, balance issues, nausea and sleep disturbance. The nausea and sleep disturbance have improved, but the other symptoms have persisted and remain to this day, and continue to interfere with her everyday life. As a result she is unable to concentrate (e.g. when reading and writing) for prolonged periods as it leads to headaches and dizziness; is no longer able to drive because of the risks posed by dizziness and relies on public transport; she needs to rest frequently and sometimes requires assistance when shopping; balance issues heighten the risk of falling when showering, and when dressing she needs to move slowly and carefully; she has to cook slowly and cautiously; and has experienced multiple falls when walking; and has limited participation in social activity.[10]The respondent does not dispute that these symptoms are and were genuine; and are sufficient to satisfy the statutory definition of having a substantial effect on normal day to day activities, leaving the question of whether they are long term.[11]Medical Evidence – The medical evidence includes fit notes covering the whole period of absence by reason of post-concussion syndrome. The first Occupational Health report is dated 14th December 2023. At that point she suffered intermittent pain in her head and dizziness. She was unfit to work at that point, and it is advised that head injuries can take two weeks or more to resolve. A follow up OH report of 22nd December 2023 reported no improvement in symptoms in the previous week; confirmed that she remained unfit for work; and stated a long term outlook could not be provided given the absence of improvement. A third OH report dated 10th February 2024 records ongoing symptoms of headache dizziness and fatigue. She had not spoken to her GP as she had been advised that the symptoms would resolve in time, and she remained unfit for any work. A further OH report from 5th March 2024 disclosed that her GP had declined to make further investigation as the symptoms were expected to resolve. OH advised that her symptoms should be self-resolving and that a return to work, with a phased return to work plan and/or non-contact duties within the next four to six weeks might be possible. It states that the claimant is experiencing an episode of post head injury symptoms, which in the absence of complications are expected to resolve but that the time fame is difficult to predict. The final OH report is dated 18th March 2025. It describes her as slowly recovering from the effects of the head injury; and expresses the view that she should be able to return to a non-operational role on or around 1st April 2024, with a phased return to work and frequent rest breaks; and with a return to full duties in some eight to twelve weeks The expectation was that she would make a 4 of 7 satisfactory recovery within a few weeks. The respondent points to the fact that, although it is not determinative of the issue, all of the OH reports express the view that the claimant’s condition is unlikely to satisfy the statutory definition of disability.[12]Long Term – As set out above the only issue before me is whether the claimant’s condition is long term:- EqA 2010 Sch 1 para 2 provides that a long-term effect of an impairment is one which falls within one of the following categories:(a) it has lasted at least 12 months;(b) the period for which it lasts is likely to be at least 12 months; or(c) it is likely to last for the rest of the life of the person affected.[13]That issue must be determined at the time of the discrimination alleged (i.e. from 3rd December 2023 until 8th April 2024) and the tribunal is not permitted to determine the issue by reference to what is known to have happened thereafter (All Answers Ltd v W [2021] EWCA Civ 606).[14]It follows automatically that as at 8th April 2024 the claimant’s condition did not fall within EqA Sch 1 para 2(a) as it had not lasted for twelve months by that stage. The question is therefore whether it falls within (b) or (c).[15]The HoL in SCA Packaging Ltd v Boyle [2009] UKHL 37 held that the word 'likely' meant 'it could well happen'. The 2010 Guidance to the EqA 2010 states (at para C3) that 'likely should be interpreted as meaning that it could well happen, rather than it is more probable than not that it will happen'. The test is, therefore lower than the balance of probabilities.[16]There are effectively three possibilities, that the evidence; i) Allows the conclusion that the condition/ impairment is not likely to last more than twelve months; ii) That it is likely to last more than twelve months; iii) The evidence is insufficient to draw any conclusions whether applying the balance of probabilities test, or the “could well happen” test.[17]Claimant -The claimant in her witness statement relies on the fact that her symptoms have now lasted for more than twelve months without significant improvement, and that judged at today’s date she would satisfy the statutory definition. Judged as at the 8th April 2024, she had made little or no improvement in four months and there was in fact no reason to suppose that she would thereafter. The tribunal can properly conclude on that basis that it “could well happen” that the impairment would last for longer than twelve months.[18]The respondent points to the fact that all of the medical evidence anticipated a recovery in a relatively short time. Her GP had declined to 5 of 7 conduct further tests given the likelihood of spontaneous improvement and recovery, and all of the OH reports expressed the same view of the likelihood of a complete recovery. In the end the tribunals decision must be based on evidence; and there is no evidence from which it could be properly be concluded that the condition/impairment was likely to last twelve months, and a wealth of evidence that it was not. Put simply all of the medical evidence anticipated a recovery within weeks/ a few months and there is no evidence at all from which he likelihood of it continuing in the longer term could be established. It follows that in order to reach the conclusion that it was likely to last more than twelve months the tribunal would have to ignore the medical evidence, and substitute its own guess, which it is not entitled to do.[19]Conclusions – Whilst it is difficult not to be sympathetic to the claimant who has now suffered the symptoms of post-concussion syndrome for in excess of eighteen months; I am required to judge the issue as at, and on the evidence available, at the latest by 8th April 2024. Whilst the medical evidence may have proven to be over optimistic, on the basis of that evidence it does not appear to me that there is any evidential foundation to support the conclusion that the condition/impairment was “likely” to last for twelve months or more.[20]It follows that in my judgment I am bound to conclude that the claimant does not satisfy the statutory test and was not a disabled person at the material times. It equally follows that her claims of disability discrimination are bound to be dismissed as she was not a disabled person. Race Discrimination – (Claim 6004247/2024)[21]It follows that the only claim going forward to final hearing is the claim for race discrimination.[22]The claimant relies on her national and ethnic origin as a Hong Kong national.[23]There are two specific events on which she relies factually: i) In an email sent after a meeting with the claimant on 15th March 2024 Mr Kerr referred to a “language barrier”; ii) In a Formal Attendance meeting held on 4th April 2024 Mr Kerr again referred to a “language barrier”[24]The claimant contends that the phrase “language barrier” is unwanted and offensive and is a comment on her Hong Kong nationality and/or accent and brings claims of harassment (s26 EqA) and indirect race discrimination (s19 EqA) arising from it.[25]The respondent contends that the phrase is essentially a shorthand method of describing a difficulty raised and referred to by the claimant herself (See GoR para 25); and that in relation to the allegation of harassment it was necessarily : a) Not related race; 6 of 7 b) Not unwanted conduct; c) Did not create any of the proscribed environments.[26]Similarly in relation to the indirect discrimination claim it contends: i) It did not have a PCP of assuming that non-native born employees and/or employees whose first language was not English would or did face a language barrier (in that, if its evidence is accepted, this was not a PCP applied to the claimant, but the acceptance of an assertion made by the claimant relating solely to herself and her personal circumstances).[27]Remedy / Compensation – As set out above the claimant was dismissed because of her sickness absence/ medical inefficiency and she does not have two years’ service so a to entitle her to bring a claim a of unfair dismissal. It appears to follow (although it will be for the tribunal which hears the claim to make any final determination) that in the event that the claimant succeeds in either or both of these claims that compensation will be limited to an award for injury to feelings.[28]Agreed Case Management orders are set out in the accompanying CMO.