Mr J Caine v Yarrow Heights School Ltd: 6011941/2024
REASONS
[1]Following a case management hearing of 1 July 2025, this claim was listed for a public preliminary hearing, to deal with the following matters:1.1 To determine whether, subject to s.6 of the Equality Act 2010 (‘the Act’), the Claimant was a disabled person at the material times by reason of Irritable Bowel Syndrome (IBS).1.2 To confirm case management orders for the final hearing.[2]The Respondent accepts that the Claimant has IBS and that that is a long-term impairment. It is not accepted, however that that impairment had a ‘substantial … adverse effect on (the Claimant’s) ability to carry out normal day to day activities’ and which are therefore the issues before me.[3]This claim is already listed for final hearing on 22 to 26 June 2026. 1 of 9 Preliminary Issue[4]The Respondent disclosed an additional document on 10 October 2025 and included it in the bundle, without the Claimant’s agreement. It is a ‘preemployment medical questionnaire’ completed by the Claimant on 5 February 2024 [89].[5]The Claimant applied to have that document excluded from the evidence, due to its late disclosure, after his witness statement had been completed and on which he was therefore unable to comment and which therefore, it was argued, was substantially prejudicial to him.[6]The Respondent accepted that they had only disclosed the document on 10 October but asserted that it had previously been provided to the Claimant as part of the provision of documents to him in response to a Subject Access Request of his, but of which there was no corroborating evidence. In any event, it was pointed out that the Claimant himself had completed the document and also referred to it in his ‘further and better particulars’ (f&bp) (of or about 18 June 2025) and therefore should have addressed its contents in his witness statement.[7]I decided to permit the document to be adduced, for the following reasons:7.1 The Claimant has been generally aware of its contents since the commencement of his employment and specifically so since his f&bp, in which he sought to explain his failure in the document to refer to his IBS, or any effect it may have had on his ability to carry out his role.7.2 It is plainly relevant to the issue before me, going to the Claimant’s credibility.7.3 I don’t consider that there is any real, let alone, ‘substantial’ prejudice to the Claimant in doing so. He could, if he wished, have provided a supplemental witness statement (as he already done with his disability impact statement) dealing with the document and in any event the questions to him, in either examination or chief, or cross-examination would be relatively straightforward and predictable (why did you not disclose the condition?), as he had himself foreseen in his f&bp.7.4 In contrast, the prejudice to the Respondent would be that while they could have nonetheless questioned the Claimant on the answers he gave at the time he filled in the questionnaire (as he himself had referred, in his f&bp, to his failure to disclose his condition in that document), they would have been unable to specifically refer him to the text of those questions, artificially limiting their ability cross-examine him.7.5 I consider, therefore, that the balance fell in the Respondent’s favour. 2 of 9The Law
[8]I was referred to s.6 of the Act, as to the statutory test in such matters and also to the ‘Guidance on Matters to be Taken into Account in determining questions relating to Disability (2011)’ (‘the Guidance’).[9]Section 212(1) of the Act defines ‘substantial’ as meaning ‘more than minor of trivial’.[10]I was referred to the following authorities:10.1 When determining whether a person meets the definition of disability, it is important to focus on what an individual cannot do, or can only do with difficulty, rather than on the things that he or she can do (confirmed by the EAT in Goodwin v Patent Office [1999] ICR 302, EAT).10.2 Igweike v TSB Bank plc [2019] UKEAT/0119/19/B1, which at paragraphs 81 and 82, stated: 81. In agreement with Mr Young, I do not think therefore that it is necessary, to a claim of this sort, for the Tribunal to find that the individual's performance is so badly affected that it takes him below the range of absolute levels of performance exhibited amongst other colleagues. The question would not be whether his performance was so badly affected that it fell, in terms of its actual level, below that absolute range. However, in considering whether the impact on his performance is substantial, the Tribunal may take into account how the degree or extent of differential in his performance (between what it would be without the impairment, and what it is in view of the impact of the impairment) compares with the degree of differential or variation in performances that might normally be encountered among workers required to carry out this task, and who are not labouring under the effects of the same impairment. 82. If in a given case, for example, the Tribunal found that an individual's performance was 50% lower than normal for him, it might readily accept that a reduction of 50% in performance would be significant and unusual for anyone. However, if the Tribunal found that the reduction in his performance was just a few percentage points, it might be assisted in considering whether that was a substantial reduction, by looking at the wider picture of whether a reduction of that more modest level was something that would generally be regarded as significant, if exhibited by someone else who was subject to the same kind of assessment; or whether it would fall within the degree of fluctuation in ordinary performance normally found among those who did not have the impairment.10.3 A first-instance Tribunal judgment in the case of Klonek v University Hospitals Sussex NHS Foundation Trust [2024] Case Number 2301520/2023. 3 of 9Facts
[11]I heard evidence from the Claimant and both parties made submissions.[12]General Background. The Claimant worked for the Respondent (a Special Needs school) as a Learning Support Assistant, for approximately five months, until his dismissal with effect 25 July 2024, on the stated grounds of failing his probationary period.[13]I summarise the Claimant’s evidence as follows:13.1 The Claimant’s disability impact statements [81 and 94] set out (in summary) the following:13.1.1 While only diagnosed on 18 August 2021, the Claimant has suffered from IBS for all his adult life.13.1.2 The condition results in stomach cramps, bloating, and ‘anal leakage’. He doesn’t know what triggers the condition, rendering the symptoms unpredictable. Stress, however, is a factor. He referred to having ‘flare ups’ of the condition, when its symptoms worsened.13.1.3 It affects his social life, as he needs to be near a toilet, but not wishing to have to explain this to new acquaintances.13.1.4 His timekeeping can be affected, due to the sudden need to use the toilet.13.1.5 He restricts his diet to foods that he hopes may not lead to flare ups and sometimes fasts, to avoid the symptoms.13.1.6 When out of the house, he takes spare underwear, wet wipes and deodorant, in order to keep clean and avoid unpleasant odours.13.1.7 He could need to use the toilet for a bowel movement ‘numerous times’ a day and have to return there to clean himself, in the event of leakage.13.1.8 If he cannot use the toilet freely, then this results in him being stressed, exacerbating the condition and resulting in leakage and smells, which he obviously finds very embarrassing.13.1.9 At work, if there were no flare ups, he might go to the toilet twice in his working day, but, with flare ups, possibly between three and five times, with urgency.13.1.10 If stressed or worried, his concentration can be affected, as his focus can be on the need to quickly access a toilet. 4 of 913.1.11 He may, on occasion take more time than would be normal in the toilet, both to clean it and himself.13.1.12 The more he was confronted at work about his frequency of toilet breaks, the worse the condition became.13.1.13 He said, in his second statement that ‘My IBS has been a constant problem for me at work.’13.2 I summarise the medical evidence (all taken from his GP’s notes [83-88]) as follows:13.2.1 29 July 2021 – in a telephone consultation, ‘abdominal bloating for many months … flatulence … noticed after certain foods … well in self … normal BMI and gym goer’.13.2.2 18 August 2021 - in a letter to him, ‘gastrointestinal symptoms … test results for bloating … all normal and advised possibly/likely IBS … info sent (reference an IBS network and dietary advice).13.2.3 13 May 2022 – ‘ongoing issues with abdominal bloating. Never tried removing gluten or FODMAP diet (meals with low fermentable carbohydrates) or taking probiotics. Has high Glycaemic index food … in terms of bowels – try removing gluten, or if this does not help try FODMAP or removing high GI foods and adding in probiotics. If not working to come back.’13.2.4 12 April 2023 – ‘reports he eats lean meat and veg and exercises regularly and feels this contributes to 2 stools a day … his stool has been sticky … likely more than a few months’.13.2.5 29 July 2024 (so, after his dismissal) – ‘IBS, after cleaning bottom, sometimes leaked faecal matter noticed. Opening bowels 3 times daily, worse after eating vegetables. Mostly loose to normal stools. No other issues.’13.3 In both examination in chief and cross-examination, he said, in summary, the following:13.3.1 He had not mentioned his IBS or any effect it might have on ability to carry out his role at work, in the questionnaire because he ‘never saw it as a medical condition and it was never a problem in previous schools (two other SEN schools). It was not necessary to disclose it.’13.3.2 Nor had he referred to any adjustments of the type he now says are necessary because, again, they had ‘not been an issue in my previous employment (also as a learning support assistant), as extra toilet breaks were allowed, so didn’t consider it necessary’. 5 of 913.3.3 He agreed that he had never been referred to a consultant or specialist, or had any medical procedure or tests, such as a colonoscopy, for the condition.13.3.4 The sum total of medical advice related to diet. He agreed that the description in his GP’s notes of him being ‘well in himself’, having a normal BMI and being without abdominal pain were correct.13.3.5 He had had no GP consultations between August 2021 and May 2022 and then one consultation in each of the following two years (so, five visits in three years).13.3.6 In respect of the record for the 29 July 2024 consultation, he agreed that he had ‘no other issues’ but did not accept that the reference to ‘sometimes leaked faecal matter’ was correct, as he stated that that was ‘actually often’. When challenged as to why he’d not told his GP that, he said that it was his use of ‘phraseology’. He was asked if ‘leaking’ was the same as incontinence and he said ‘no, not the same as ‘soiling’.13.3.7 He agreed that he had never informed his GP of any impact on his ability to carry out day to day activities.13.3.8 He disagreed that his symptoms were minor and therefore not substantial.13.3.9 When asked why he had not reported his now stated more serious symptoms to his GP, he said that he had referred to leakage, but his ‘GP can’t fix it, so what’s the point’ and it ‘wasn’t for the GP’ to resolve. He disagreed that the reason his more serious symptoms are not recorded is because they were not having the effect he now claims.13.3.10 When asked to confirm the period of time when his IBS was ‘a constant problem at work’, he said that it was during the ‘second half of my employment, due to stress’ (so, approximately mid-May to the end of July 2024). When asked, he said that this had not only been while working with the Respondent, but also in the past, at ‘times of extreme stress’.13.3.11 In the context of him living independently, being able to cook and drive and being a regular gym-goer, it was suggested to him that the need to ‘go to the toilet a few more times was not a substantial adverse effect’, and he agreed, ‘yes, but that alone is not my only symptom, there’s also bloating, leakage and wind’. He did not agree that it was ‘a minor inconvenience at best’.13.3.12 He did not accept that he was able to socialise normally, stating that if he had a flare up, he would not attend the event, due to being ‘self-conscious about the smell and watching the toilet’. He said that he didn’t tell his GP about this because he was not his ‘therapist’. 6 of 913.3.13 He said that he was able to cope with his condition, due to his diet and having reasonable adjustments at work.13.3.14 When asked why he had not visited his GP during his time with the Respondent, if his condition was so serious and he said that he knew what made his condition worse, which was stress, which his ‘GP can’t fix’ and ‘I managed as best I can’.13.3.15 He referred to IBS as incurable and said, when asked who told him that, that he knew it from his research.13.3.16 It was suggested to him that despite, in the past, having stated that he had much less serious symptoms, he had nonetheless gone to his GP, but he had not done so during his employment because he was now exaggerating his symptoms, to pursue this litigation. He denied that and said that he would have booked the appointment after his dismissal ‘long before’.13.3.17 When challenged that even on 29 July 2024, the GP’s record shows a need for a bowel movement only three times a day, he said that IBS ‘was unpredictable’.13.3.18 When asked why he had not provided any information about his condition in the pre-employment medical questionnaire, in answer to the question ‘have you ever had any current or recent medical condition or treatment which might affect your attendance or performance at work?’ he said that ‘at that point I didn’t believe it was a disability and didn’t believe that it was a problem, as it hadn’t been in my previous employments.’ When challenged that he was not, in that question, being asked about any disability, merely as to any medical condition, he said that when he read it, he believed it referred to ‘disability’. When further asked, then, if he believed, at the time that it was a ‘medical condition’, he said he’d ‘not given it much thought’ and was asked, therefore, that if he didn’t think it was a medical condition, why was he going to his GP and he referred again to his belief that his IBS would not affect his performance at work. This was the same reason as to why, in his f&bp [55 para.6], he had said he had not provided any information in the questionnaire about his condition as he ‘did not believe it to be important’. He denied that he had answered ‘no’ to this question because the condition did not have a substantial effect on his ability to carry out normal day-to-day activities but said it was because it was ‘manageable if I was not stressed.’13.3.19 He had not specified any adjustments that he might need, as the condition only worsened ‘with extreme stress’ and was unpredictable.13.3.20 He did not agree that for long periods of time, such as between August 2021 and July 2024, his condition had no effect on him, stating that it had a ‘daily’ effect, but that he managed it through his diet. 7 of 9[14]Closing Submissions. I heard closing submissions from both parties which I will deal with, as I consider relevant, in my conclusions below.[15]Conclusions. I find that the Claimant was not disabled at the relevant time by reason of IBS, for the following reasons:15.1 I did not find him to be a credible witness. I reached that conclusion because:15.1.1 I did not believe his explanation for the paucity, infrequency and lack of detail as to the severity of his condition (as he now describes it) in his GP’s notes. I find, on the balance of probabilities that a person with symptoms such as ‘often’ leaking faecal matter, diarrhoea, stomach cramp, resulting in the need to go to the toilet, to open his bowels, up to ‘five times/numerous times day’ and with related embarrassing smells and the need to clean himself and which symptoms adversely affected his social life and necessitated the carriage of spare clothing, would have mentioned this detail to his doctor. The fact that the Claimant didn’t do so, but did report some, more minor symptoms, such as ‘bloating’, or ‘sometimes’ leaking faecal matter (and the latter only after his employment had ended), indicates to me that he now seeks to exaggerate those symptoms.15.1.2 While he told his doctor that he ‘sometimes’ leaked faecal matter (and which he also said in his first statement [81]), he sought now, in evidence, when challenged on that point to instead assert that it was ‘actually often’ and was unable to explain that inconsistency beyond stating it was his ‘phraseology’. I see no room for cross-interpretation, by reason of ‘phraseology’, between ‘sometimes’ and ‘often’.15.1.3 The inconsistency between his explanation for not answering the questionnaire honestly, as being that he didn’t (six months before his dismissal) believe that his IBS was a medical condition, or ‘important’ to it now, in his evidence, being ‘a constant problem for me at work’, with substantial adverse effects on his ability to carry out normal day to day activities.15.2 I consider therefore that the truth of his condition is as described in his GP’s notes, a common gastrointestinal ailment, manageable by a sensible diet, avoiding high glycaemic foods and of which regime, I take judicial notice, very many people would no doubt benefit from. I don’t consider that advice to be ‘medical treatment’, as such, when compared to the example in the Guidance (B12 & 14) as to diets for persons with diabetes. The doctor’s note of April 2023 seems to indicate that the Claimant had taken that advice and was only passing stools twice a day. Even the entry after the Claimant’s dismissal (when, by his account, his condition would have been at its worst) does not indicate any significant deterioration in his symptoms. I do not consider, therefore that the example relied upon by the Claimant, in D22 of the Guidance, as to a person with colitis, applies in his case. The annex to the Guidance lists 8 of 9 ‘infrequent minor incontinence’ as a factor that ‘would not be reasonable to regard as having a substantial adverse effect on normal day-to-day activities’ and which I consider to apply to the Claimant.15.3 Apart from what the Claimant now states in his statement and oral evidence, there is no evidence in his doctor’s notes of any effect (substantial or otherwise) on his ability to carry out normal day to day activities, either at home, or in a routine work environment. Based on that evidence and the contents of the questionnaire and bearing in mind my findings as to his credibility, and that the burden of proof is upon him in this respect, I therefore find that there were no such substantial effects.15.4 Although unnecessary, in view of these findings, I don’t consider that the Claimant’s work role with the Respondent, requiring constant supervision/teaching, on a high adult/pupil ratio, of special needs children could be considered as a ‘normal day to day activity’, but was, instead, a specialised work task, not a general work-related activity (para. D3 of the Guidance).[16]Judgment. For these reasons, therefore, I find that the Claimant was not disabled at the material time by reason of IBS.