Mr A Bennett v Peak Production Equipment Ltd: 6007829/2024 and 3311341/2024
REASONS
[1]This hearing is listed as an open preliminary hearing to deal with the question of disability. The claimant, Mr Bennett, is represented by his wife, Mrs Bennett, and the respondent is represented by Mr Nuttall.[2]There are two claims before the tribunal which have been consolidated by an order dated 4 February 2025.[3]The claim that this application relates to started on number 6007829/2024, a digital file, where the claimant claims disability discrimination on a direct basis and as a failure to make a reasonable adjustment. He also has a claim for public interest disclosure detriment , and a claim for automatically unfair dismissal under case number 3311341/2024. He issued his claim in these proceedings on 6 August 2024. There is no question that the parties engaged in early Acas conciliation in respect of the issues. A final hearing is scheduled of the substantive claim later this year. Employment Judge Hutchings on 4 February set up this preliminary hearing to deal with the sole issue of disability and then further case management of the list of issues that arises from it. Therefore, the only issues that I am dealing with today are in relation to that.[4]The disabilities which I need to determine are:a. A hearing impairment.b. Autism.c. ADHD.The evidence
[5]I have heard evidence from Mr Bennett who has given oral evidence in support of his impact statement, and he has been cross examined by Mr Nuttall. Re- examination questions have been put to him by Mrs Bennett.[6]I have also heard very brief submissions from both parties, and I should say there is some lack of clarity on my part as to the final position of the respondent as to whether or not they fully accept the hearing loss as a disability. So, for those reasons, I will treat it as if it is a contested issue and I give the full judgment on it.[7]I have considered the written hearing bundle in full.The law
[8]The definition of a disability has a number of elements for the tribunal to consider when arriving at its decision on whether a person has a disability. The starting point is section 6 of the Equality Act 2010 which states that: a person has a disability if they have a physical or a mental impairment and that impairment has a substantial long-term adverse effect on their ability to carry out normal day-to- day activities. This is a general interpretation of the Equality Act. Section 212(1) says that substantial means more than minor or trivial.[9]Long-term impairment has a particular meaning. A long-term impairment is one that has lasted 12 months or is likely to last 12 months or may reoccur. Whether an impairment is long-term must be considered at the date of the alleged discrimination. For the purpose of these proceedings there is no dispute that we are talking about issues that arose prior to the claimant’s employment and, were I to find that he has those disabilities would have persisted as a life-long condition, and would have been present throughout his employment with the respondent.[10]Guidance has been issued by the government under section 6(5) of the Equality Act concerning the definitions of disability. Any tribunal which is determining for the purpose of the Equality Act whether a person is a disabled person has to take into account any aspects of the guidance which appears relevant.[11]In deciding whether a claimant is disabled within the Act, it is necessary to consider what substantial adverse effect means. This is considered in Part B of the Guidance. Paragraph B2 says: “B2. The time taken by a person with an impairment to carry out normal day-to-day activity should be considered when assessing whether the effect of the impairment is substantial. It should be compared with the time it might take a person who did not have that impairment to complete an activity.”[12]Paragraph B3 states: “B3. Another factor to be considered when assessing whether the effect of an impairment is substantial is the way in which a person with that impairment carries out a normal day-to-day activity.”[13]Paragraph B4 gives guidance about the impairment might have a substantial adverse effect on day-to-day activity and that those might not be in isolation, but particular conditions taken together may have a substantial adverse effect.[14]Paragraph B4 states: “B4. An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation. However, it is important to consider whether its effects on more than one activity, when taken together, could result in an overall substantial adverse effect.”[15]Paragraph B6 states: “B6. A person may have more than one impairment, any one of which alone would not have a substantial effect. In such a case, account should be taken of whether the impairments together have a substantial effect overall on the person’s ability to carry out normal day-to-day activities. For example, a minor impairment which affects physical co-ordination and an irreversible but minor injury to a leg which affects mobility, when taken together, might have a substantial effect on the person’s ability to carry out certain normal day-to-day activities. The cumulative effect of more than one impairment should also be taken into account when determining whether the effect is long-term..”[16]Paragraph B7 states that: “B7. Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities.”[17]The tribunal must also consider the question of the impairment as if the person is not taking any medication or the absence of measures to control this.[18]Paragraph D2 outlines that the Equality Act does not define what is to be regarded as normal day-to-day activity.[19]Paragraph D2 states: “D2. The Act does not define what is to be regarded as a ‘normal day- to-day activity’. It is not possible to provide an exhaustive list of day- to-day activities, although guidance on this matter is given here and illustrative examples of when it would, and would not, be reasonable to regard an impairment as having a substantial adverse effect on the ability to carry out normal day-to-day activities are shown in the Appendix.”[20]Paragraph D3 states: “D3. In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education- related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern.”[21]Those are the legal principles which I have applied in reaching this decision. The standard of proof is the balance of probabilities and the burden is upon the claimant. Findings and analysis Hearing Impairment[22]As I have set out already, Mr Nuttall has been somewhat equivocal about whether or not he accepts the claimant has a hearing impairment. I have heard from the claimant that he wears a hearing aid in both ears. That fact is not disputed. I have seen his impact statement, and he has given evidence to me that he has a hearing loss in one ear of about 80% and 60 to 70% in the other ear which is degenerating. I have seen his GP records. Those are not particularly helpful in that they are clearly incomplete. They do not have clinical letters attached, which are often more helpful in explaining the details of somebody’s condition. From 4 November 2019 it is clearly recorded that he has hearing loss, and in December 2020 a perforation of his eardrum.[23]Based on the cumulative evidence that I have heard, I am satisfied that he does have a hearing impairment. I am satisfied on his evidence that that hearing loss reduces his hearing somewhere between 60 to 80%. The condition is lifelong and degenerative. If I assume that his hearing is to be considered without the aid of a hearing aid, I am entirely satisfied that such a level of hearing would have a substantial adverse effect on an ability to hear, particularly within day-to-day environments such as a noisy workplace or factory environment. I do not think there is really any opposition to my finding that that comfortably meets the definition within section 6 of the Equality Act.[24]I therefore make a finding that the hearing impairment is a disability for the purposes of section 6 and the claimant is a disabled person for those purposes. This disability pre-dated his employment and, therefore, the relevant dates are throughout his employment. It was obvious to the respondent that he wore hearing aids whilst employed. ADHD /Autism[25]I turn then to consider the two other diagnosis of Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder. These are both neurological conditions. They are considered in many spheres as a disability. The claimant has explained that he has taken medication for his ADHD in the past but that had adverse effects, so he discontinued it. At present I can see from his notes that he is not currently taking any medication. He spent some time in his evidence explaining to me the difficulties that he had with hyperfocus and anxiety, and difficulty focusing. In his presentation in this hearing it is clear that he had some difficulties and I have made allowance for that. I take account of that presentation as well.[26]I have seen the report of the psychiatrist, who has assessed the claimant in a report dated 6 February and in a subsequent addendum dated 18 March 2022. It is clear within that document that she makes a combined type diagnosis under the DSM53 14.10 of ADHD. That does not appear to be disputed. The only area of dispute is whether it had a substantial adverse effect. However, given that this is a neurological condition, I am satisfied that it is a potentially life-long condition, and it has been ongoing since the point of this diagnosis and that it persisted during his employment. It therefore has a long-term effect. I am satisfied, based on the material within that report, that there are substantial difficulties which the claimant experiences compared to somebody without the disability both within his focus and the associated stress and anxiety that that causes in terms of his ability to focus. It is supported within his GP records that that is recorded as a formal diagnosis. The report highlights the difficulties that he had in terms of arguments, social conflicts and difficulties. He was not able to mitigate these effects and the presented a challenge within his presentation to other.[27]I am satisfied that he has that diagnosis and that it constitutes a disability for the purposes of section 6 of the Equality Act. It was persistent throughout the relevant dates of his employment.[28]The issue of autism is less clear. As I have already explained to the parties, this is a finely balanced issue. It is not dealt with in the report in a particularly clear way. It is clear that there was some missing information from the original assessment carried out in February 2022, and, following a family interview and assessment, the addendum indicates that the report is indicative of autism and ADHD. Autism, of course, is a spectrum, and it is not particularly helpful in identifying in its addendum where the claimant is within that spectrum, but I note that it is clear that the GP has recorded it as a diagnosis on 6 February 2022 and they also record it as the Autism Spectrum Disorder as a condition. Therefore I am satisfied that there is sufficient evidence within that report for the GP to consider that as a formal diagnosis.[29]I am satisfied that, having heard from the claimant and considered the matters, that there is a substantial crossover between the two conditions. The claimant does have difficulties with social interactions, hearing nuanced social queues and anxiety. Coupled with his hearing loss, those make for a substantial effect on his day-to-day presentation and his ability to interact socially with other individuals affecting his relationships, need for control, and his general ability to socialise. These are substantial effects.[30]As I have said, there is no particular definition of day-to-day activity, but I am satisfied that given it is a neurological condition affecting executive functioning of the brain and his ability to perceive the way that others interact, that will meet the diagnostic criteria under section 6 of the Equality Act.[31]As I have said, it is a spectrum, the extent of that is relevant, but I am satisfied that it is sufficient to make that finding that he does have those difficulties with social interactions and that has a substantial adverse effect on his day-to-day activities.[32]I therefore conclude, for the reason that I have set out above, that those three conditions either in isolation or combined collectively, constitute a definition of section 6 disability for the purpose of the Equality Act. These were present during and throughout his employment.[33]That is my judgment. Approved by: