Ms J TaylorClaimantEllenborough Park LtdRespondent
Before
Employment Judge P CadneyIn person for claimantDate 27 October 2025
REASONS
[1]The case came before EJ Bax on 7th July 2025. He listed today’s Preliminary Hearing to determine the following issues: i) Whether the Claimant was disabled by reason of dyslexia at the times material to the claim within the meaning of s. 6 and sch. 1 of the Equality Act 2010. ii) Finalising the list of issues. iii) Listing a final hearing and further case management Disability 1 of 6[2]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).[3]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: The Relevant Law Section 6 of the Equality Act provides as follows: a person (P) has a disability if- P 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.” Thus ‘Impairment’ in s.6 EQA 2010 bears ‘its ordinary and natural meaning… It is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the applicant has a physical or mental impairment with the stated effects’ (McNicol v Balfour Beatty Rail Maintenance Ltd 2002 ICR 1498, CA) The term is meant to have a broad application. The meaning of ‘substantial adverse effect’ is considered at section 212(2) EQA 2010 and paragraph B1 of the Guidance which provides “a substantial effect is one that is more than a minor or trivial effect”. The Tribunal’s focus, when considering adverse effects upon day-to-day activities, must necessarily be upon that which claimant maintains he cannot do 2 of 6 as a result of his physical or mental impairment” (see Aderimi v London and South Eastern Railway Ltd UKEAT/0316/12, [2013] ICR 591). In that context, the appendix to Schedule 1 of the Equality Act 2010 includes examples of factors which it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities. These include “a total inability to walk, or inability to walk only a short distance without difficulty; for example because of physical restrictions, pain or fatigue, and persistent distractibility or difficulty concentrating.” Conversely the guidance indicates that the following factors would not reasonably be regarded as having such an effect: “experiencing some tiredness or minor discomfort as a result of walking unaided from a distance of about 1.5 kilometres or 1 mile; inability to concentrate on a task requiring application of several hours.” 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 Guidance addresses recurring or fluctuating effects at C5. Examples of how to address episodes of such conditions as depression, or conditions which result in fluctuating symptoms are given at paragraphs C6, C7 and C 11; they provide: C6. If the substantial adverse effects are likely to recur, they are to be treated as if they were continuing. If the effects are likely to recur beyond 12 months after the first occurrence, they are to be treated as long term. C7. It is not necessary for the effect to be the same throughout the period which is being considered in relation to determining whether the “long-term” element of the definition is met. A person may still satisfy the long-term element of the definition even if the effect is not the same throughout the period. It may change: for example activities which are initially very difficult may become possible to a much greater extent. The effect might even disappear temporarily. Or other effects on the ability to carry out normal day-to-day activities may develop and the initial effect may disappear altogether. C11. If medical or other treatment is likely to permanently cure condition and therefore remove impairment so the recurrence of its effects would then be unlikely even if there were no further treatment, this should be taken into consideration when looking at the likelihood of recurrence of those are facts. However, if the treatment simply delays or prevents a recurrence, and a recurrence would be likely if the treatment stops, as is the case with most medication, then the treatment is to be ignored and the effect is to be regarded as likely to recur. 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’) 3 of 6 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” (see Aderimi v London and South Eastern Railway Ltd UKEAT/0316/12, [2013] ICR 591). In that context, the appendix to Schedule 1 of the Equality Act 2010 includes examples of factors which it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities. These include “a total inability to walk, or inability to walk only a short distance without difficulty; for example because of physical restrictions, pain or fatigue, and persistent distractibility or difficulty concentrating.” Conversely the guidance indicates that the following factors would not reasonably be regarded as having such an effect: “experiencing some tiredness or minor discomfort as a result of walking unaided from a distance of about 1.5 kilometres or 1 mile; inability to concentrate on a task requiring application of several hours.” 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
[4]Disability – The claimant asserts that she is disabled by reason of:: i) Dyslexia;[5]EJ Bax gave directions for the claimant to provide a Disability Impact Statement and medical evidence including relevant parts of her GP records by 22nd August 2025.[6]Medical Evidence – The claimant has not provided any medical evidence and, by an email of 11th September 2025 contended that she cannot afford the £600 to 4 of 6 obtain a standard diagnosis of dyslexia from the Dyslexia Centre UK. In addition she contends that dyslexia is not a medical condition and that “..the doctor has no information about a learning difficulty they are not aware of.” The claimant accepts that she has never received any formal diagnosis of dyslexia. There are a number of sources of information including the email of 9th May 2025, 11th September 2025, Appendix 1 to her letter to the tribunal dated 10th June 2025, and a number of emails sent between 24th and 27th October, very shortly before this hearing.[7]Claimant’s evidence - In summary she contends that she has been dyslexic since childhood, and although no formal diagnosis has ever been made, that is because she grew up at a time when dyslexia was not commonly identified or understood. In her 10th June 2025 letter she refers to the condition affecting her ability to process information, read write and spell, and that when using a keyboard or typing or putting information through on a till that she has to focus and concentrate or letters and numbers can be reversed. There is very little evidence contained in the documents themselves, but orally this morning she has given evidence that she has been dyslexic since childhood. She has been able to compensate in course and classwork, but has always performed more poorly in exams, which she attributes to dyslexia. In Appendix 1 to the 10th June letter she asserts that she was first identified as dyslexic by her tutor when doing the finals of her Sociology degree in themed 1980s. In July this year she took an online diagnostic test in which she scored 13, a score of 11-15 indicating a higher likelihood of dyslexic traits or tendencies, but she has not taken any formal diagnostic test. She relies on the result of the online test in supporting her own belief and understanding that she is dyslexic.[8]Effect on normal day to day activities – She contends that “Dyslexia is a learning disability that specifically impacts one’s ability to write and spell and there are problems with reverse typing and short term memory and confidence”. In her impact statement she complains of disability discrimination in being interrupted when entering an order into the till, as being dyslexic she has to focus and concentrate and cannot talk.[9]Respondent’s Submissions – The respondent submits that there is no evidence at all beyond the claimant’s assertion that she is dyslexic. There is no medical evidence from any point in her life in respect of the symptoms of dyslexia irrespective of there not being any specific diagnosis; and she has not since her course tutor expressed the view that she was dyslexic in the mid-1980s ever sought to obtain a formal diagnosis. It points out that there is no evidence that he had any expertise or qualification in diagnosing dyslexia, and his opinion is of limited or no value. In addition it points to the fact that since that time she has undertaken a number of academic qualifications, including a Diploma in Nursing Studies, a Diploma in Computer literacy; and a Teaching English as a Foreign Language qualification from the University of Arizona, and she does not allege that she ever informed any of the institutions or course leaders that she was dyslexic or ever sought any adjustment to coursework or exams The evidence before me therefore amounts to no more than the assertion from the claimant herself that the claimant is dyslexic without any evidential support for that contention, whether from medical records or otherwise. Indeed the claimant appears to have accepted and agreed with her course tutors opinion, but there is no evidence that he was qualified to make the assessment, or that anyone other 5 of 6 than the claimant and her tutor has ever expressed that view. There is effectively a striking and complete lack of any supporting evidence. The absence of any medical evidence as to any symptoms, or other evidence of any other formal assessment means that the tribunal cannot fallback on such an assessment and conclude that a professional qualified to make the assessment has done so (See Stedman v Haven Leisure Ltd [2025] EAT 82).[10]Moreover even if I accept that the claimant is or at least may be dyslexic, there is similarly little or no evidence of it having a substantial effect on her normal day to day activities. The claimant’s only evidence of any effect on her normal day to day activities is that in effect when typing or entering information into a till she has to focus and concentrate, and her own evidence is that when doing so she does not make mistakes. It submits that the only evidence of any effect on her normal day to day activities is the requirement to focus and concentrate in order to avoid making mistakes; and that the claimant’s own evidence was that she made fewer mistakes than other people because she focussed and concentrated whilst they were careless and did not. The respondent therefore submits that there is no, or at very least insufficient evidence that even if the claimant is dyslexic, that it had a substantial effect on normal day to day activities, and that it is of a level or degree of severity that she would meet the statutory definition. Put simply it contends that the evidence is simply not sufficient to allow the tribunal to conclude that she satisfies the statutory definition at the material times.[11]Conclusions - I have some sympathy for the claimant in that I accept that it is not possible to obtain a diagnosis from a GP, and that having to pay privately some £600 or £700 to obtain a diagnosis may be prohibitive. However, I have to judge the case on the evidence before me; and in my judgement, for the reasons set out above, the respondent is correct that there is simply insufficient evidence that the claimant is dyslexic, or that if she is that her dyslexia in this case had a substantial adverse effect on her ability to carry out normal day to day activities at the material times; and it follows that she has not satisfied the burden of proof which lies on her that she was a disabled person at the material times..