Mr C Reed-Poulson v The Secretary of State for Justice: 6015603/2024
EMPLOYMENT TRIBUNALS
Case No 6015603/2024
Between
Mr C Reed-PoulsonClaimantThe Secretary of State for JusticeRespondent
Before
Employment Judge HastieDate 1 June 2026
JUDGMENT
The reserved judgment of the Tribunal on the preliminary issues is as follows;(1) The claimant was a disabled person pursuant to section 6 of the Equality Act 2010 in relation to Benign Paroxysmal Positional Vertigo (BPPV) / Persistent Perceptual Postural Dizziness (PPPD).(2) The claimant’s claim for arrears of pay is dismissed on withdrawal.
REASONS
[1]The preliminary hearing was to determine whether the claimant was at any material time a disabled person on account of impairments, or combination of impairments at any material time pursuant to section 6 of the Equality Act 2010 (EqA10). Preliminary hearings (case management)[2]A preliminary hearing for case management was conducted by Employment Judge Smail on 9 September 2025 at which this preliminary hearing of 23 April 2026 was listed.[3]A full merits hearing is also listed at Southampton Employment Tribunal on 5, 6, 7, 8, and 9 October 2026.[4]A further telephone case management hearing is listed on 17 August 2026 at 2pm.
Background
[5]The claimant has been employed by the respondent as a prison officer since 1 August 2022. The claimant began the early conciliation process on 9 August 2024. The ACAS certificate was issued on 20 September 2024. The ET1 was issued on 19 October 2024.[6]The claimant brings claims of -(a) Failure to make reasonable adjustments related to irritable bowel syndrome (IBS) (EqA10 s20)(b) Failure to make reasonable adjustments related to Benign Paroxysmal Positional Vertigo (BPPV) / Persistent Perceptual Postural Dizziness (PPPD), (EqA10 s20)(c) Harassment related to dyslexia, (EqA10 s26)(d) Harassment related to IBS (as amended – see below) (EqA10 s26)[7]The respondent opposes the claims.
The hearing
[8]The hearing took place by way of video link with both parties joining remotely. I was provided with a bundle of 275 pages. During the hearing, I was directed to various pages in the bundle. I have fully considered those. I also read the bundle ahead of the hearing and again during my consideration of the issues. The claimant gave evidence and was cross-examined. Frequent breaks were taken during the hearing. Time was provided to ensure that the claimant could locate page references in the bundle. No issues as to the conduct of the hearing were raised by either party.
Issues
[9]The claimant made an application for amendment. The particulars of claim states that the respondent dismissed the claimant's health conditions of BPPV in May 2024. The case management order of September 2025 at paragraph 4.3.2 refers to BPPV/PPPD. The claimant applied to amend the claim so that the impairment relied on is IBS. The amendment was opposed by the respondent. Disability[10]The claimant says that he is disabled in accordance with the definition in section 6 EqA10. He asserts that his impairments are,(a) Benign Paroxysmal Positional Vertigo (BPPV) / Persistent Perceptual Postural Dizziness (PPPD),(b) Irritable bowel syndrome (IBS),(c) Dyslexia.[11]Impairments irritable bowel syndrome (IBS) and dyslexia are accepted by the respondent to fulfil the definition of disability in the EqA10.[12]The respondent accepts that the claimant was disabled by reason of IBS from 18 March 2024. The respondent accepts that it had an awareness of the claimant’s IBS symptoms prior to 18 March 2024 but asserts that occupational health advice prior to that date did not characterize this as a long-term condition. The discriminatory acts asserted by the claimant date from February to May 2024 in relation to the harassment and reasonable adjustments claims in relation to IBS.[13]The respondent accepts it had knowledge of the claimant's disability by reason of dyslexia from August 2022 and therefore throughout the relevant period of September 2023 – May 2024 in relation to the dyslexia related harassment and reasonable adjustments claims.[14]It was accepted by the parties that BPPV and PPPD are forms of vertigo and are referred to as vertigo in several documents in the bundle. For ease at the hearing, it was agreed to refer to both conditions as vertigo.[15]The claimant asserts that he has had BPPV since 2022 after sustaining a head injury at work. In June 2024 he was hospitalized for four days with BPPV/PPPD. The respondent accepts that the claimant experienced symptoms of BPPV/PPPD amounting to a physical impairment and that during acute episodes, those symptoms were capable of having a substantial adverse effect of the claimant's day-to-day activities. The respondent does not accept that the long-term element of the definition in the EqA10 section 6 is satisfied during the relevant period.[16]The parties do not agree the dates of the relevant period of the reasonable adjustments claim in relation to the claimants transfer request. The request was made on 16 August 2024. The claimant asserts that the relevant period extends to October 2024 as this allows a reasonable period for the respondent to have responded to the transfer request. The respondent asserts that the relevant period is from 16 August 2024 and it is not possible to identify the end date as October 2024 ahead of findings being made at the full merits hearing. In any event, the respondent asserts that the transfer related reasonable adjustments claim relates to BPPV/PPPD which is not, in the respondent's view, a disability.[17]The hearing focused on whether the asserted impairments of BPPV and PPPD fulfil the EqA10 definition of disability.[18]The parties agreed that both impairments, BPPV and PPPD, are related and should be considered together and that they either both fulfilled the EqA10 section 6 definition, or they did not.[19]The claimant confirmed that he does not bring a claim in relation to the failure to provide an auxiliary aid (EqA10 s20(5)).[20]The claimant confirmed that he was withdrawing any claim in relation to arrears of pay.
Law
[21]There is a broad discretion to allow amendments to claims at any stage of the proceedings. Consideration must be given in accordance with the overriding objective to deal with cases fairly and justly. The tribunal must carry out a careful balancing exercise of all the relevant factors, having regard to the interests of justice and the relative hardship that will be caused to the parties by granting or refusing the amendment. The required balancing exercise involves consideration of all the relevant factors (Selkent Bus Co Ltd v Moore 1996 ICR 836 EAT). The core test in considering applications to amend is the balance of injustice and hardship in allowing or refusing the application (Vaughan v Modality Partnership 2021 ICR 535 EAT).[22]Relevant factors include, - The nature of the amendment – applications can vary from the correction of clerical errors to the addition of facts, the addition or substitution of labels for facts already described, and the making of entirely new factual allegations. The tribunal must decide whether the amendment applied for is a minor matter or a substantial alteration. - Time limits – if a new complaint or cause of action is intended by way of amendment, the tribunal must consider whether that complaint is out of time and if so, whether the time limit should be extended. - The timing of the application – an application to amend can be made at any time. A party will need to show why the application was not made earlier and why it is being made at that time. Disability[23]The claimant alleges discrimination because of his disabilities under the provisions of the Equality Act 2010 (EqA10).[24]A person has a disability if he has a physical or mental impairment that has a substantial and long-term adverse effect on his ability to carry out normal day to day activities. A substantial effect is one that is more than minor or trivial, and a long term effect is one that has lasted or is likely to last for at least 12 months or is likely to last the rest of the life of the person, Section 6 EqA10.[25]The claimant bears the burden of showing that he meets this definition, on the balance of probabilities (Morgan v Staffordshire University [2002] IRLR 190).[26]In Goodwin v Patent Office [1999] ICR 302, it was held that there are four limbs to the definition of disability, and this is reflected in the legislation. Does the person have a physical or mental impairment? Does that impairment have an adverse effect on their ability to carry out normal everyday activities? Is that effect substantial? Is that effect long term?[27]Normal day to day activities are things people do on a regular basis such as shopping, reading, writing, conversing, getting washed and dressed, preparing food, eating, carrying out household tasks, walking and travelling, socialising, and working. Normal day to day activities must be interpreted as including activities relevant to professional life (Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763).[28]Paragraph 2 Schedule 1 Equality Act 2010 states that: (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.[29]If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal everyday activities, it is to be treated as continuing to have that effect if that effect is likely to recur.[30]The issue of how long an impairment is likely to last is determined at the date of the alleged discriminatory act and not the date of the tribunal hearing McDougall v Richmond Adult Community College [2008] ICR 431, CA. Subsequent events should not be taken into account.
Conclusions
[31]The claimant applied to amend the harassment claim detailed at paragraph 4.3.2 of the list of issues in the case management order of 9 September 2025. Oral reasons were provided at the hearing, and the amendment application was allowed. In short, the amendment did not give rise to a new claim, the error in the particulars had only been identified by the solicitors on 22 April 2026, and the balance of hardship fell in favour of the claimant, resulting in the application to amend being granted. The references to BPPV/PPPD in the claim of harassment (16 May 2024) is amended to be a claim in relation to IBS. Disability status[32]The claimant confirmed that the asserted impairments he relied on are:(a) Benign paroxysmal positional vertigo (BPPV) / Persistent perceptual dizziness (PPPD)(b) Irritable bowel syndrome (IBS)(c) Dyslexia[33]It is not in dispute that the claimant has the impairments of BPPV/PPPD. The claimant was diagnosed with BPPV in 2022. The Occupational Health (OT) report of October 2022 indicates that his symptoms appeared to be resolving, and it was not anticipated that the claimant would experience any long-term effects. The OH concludes that the BPPV is unlikely to be considered a disability as it had not lasted and was not anticipated to last more than 12 months, was not having a significant impact on the claimant, and was said to be unlikely to recur.[34]The symptoms did recur after October 2022 and especially so in June 2024, some 20 or so months later. The impairment had a significant impact on the claimant in that he continued to experience dizziness and symptoms he described as a cold or flu.[35]It was during the claimant's period of hospitalization in June 2024 that he was suspected to have PPPD and this was diagnosed in September 2024.[36]The claimant undertakes Brandt-Daroff exercises to manage his BPPV. The claimant takes Venlafaxine daily as well as undertaking vestibular rehabilitation therapy for his PPPD. He sometimes wears sunglasses to work as bright colours can exacerbate his symptoms.[37]The impact of the claimant's impairments varies from day to day. There are some days when his symptoms are severe. On a mild day, he has the feeling of spinning and being unbalanced. On a bad day, such as in June 2024, he can be hospitalized.[38]In the 6 months prior to late 2025/early 2026, the claimant had 6 or 7 bad days with BPPV/PPPD, two of which he notified his supervisor about. The last severe flare up of BPPV/PPPD was mid-June 2024 when he was hospitalized for four days. The effects of this flare-up lasted 6 – 8 weeks, and he struggled to stand, walk or move safely. On some days, the claimant's visual disturbances prevent him from identifying or taking medication correctly. In June 2024, OH reports that the claimant's symptoms could recur, and a referral to a vestibular clinic might be required.[39]The OH report of 13 October 2022 states that the claimant's symptoms of BPPV appeared to be resolving with the episodes of dizziness reducing. The OH states that it is not anticipated that the claimant will experience any long-term effects, and it is unlikely to be considered a disability as not lasted longer than 12 months and not anticipated to last longer than 12 months. It is said to not be having a significant impact on his ability to undertake normal daily activities and is not likely to recur.[40]The OH report of 20 June 2024 contains what is in my view, an inconsistency. On the one hand, the report states that there is a possibility of recurrence of BPPV. On the other hand, the report states that the impairment is unlikely to be considered a disability as it has not lasted more than 12 months. The definition in EqA10 requires that the impairment has lasted or is likely to last at least 12 months. I find that the impairment at June 2024 had not only lasted for 12 months as it had been ongoing since 2022 but even if I am wrong about that, it was likely to last at least 12 months. The claimant's symptoms are episodic rather than constant. They are managed by physical exercise and medication. I find that the BPPV/PPPD had and was likely to recur across a period of over 12 months.[41]The OH report of 29 July 2024 indicates that the claimants BPPV condition is likely to settle after three months. I consider that the settling of symptoms does not negate the position that the claimants BPPV/PPPD was likely to last more than 12 months. It is clear from the claimant's evidence that the symptoms are episodic and could recur at any time. The symptoms were continuing at the time of the OH report on 16 September 2024. The BPPV/PPPD was the main reason that the claimant was absent from work. This is substantiated by the fit notes of 7 October 2022, 2 July 2024, and 14 October 2024. If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal everyday activities, it is to be treated as continuing to have that effect if that effect is likely to recur. The claimant's symptoms were episodic and recurring.[42]The claimant was disabled by reason of IBS and Dyslexia. This is accepted by the respondent. The claimant was further disabled by reason of BPPV/PPPD.[43]At the start of the hearing, the respondent accepted that BPPV/PPPD fulfills the definition of disability in relation to the claimant's impairment having a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. In submissions, the respondent referred to the claimant having symptoms akin to a cold. I do not accept the respondent's submission that the claimant's description of his symptoms is little more than the feeling of having a cold. He describes significant symptoms including dizziness, spinning, nausea, low level vomiting, and caution about driving. These are, in my view, symptoms that have a substantial adverse effect on his day-to-day activities. The symptoms are more akin to the description the claimant used of like having flu.[44]I do not accept the respondent's submission that the claimant's symptoms are so intermittent that they cannot satisfy the long-term test in EqA10 section 6. The claimant had the symptoms in October 2022 and continued to have them episodically in late September 2024, as confirmed by the ENT consultant. The consultant refers to the claimant having PPPV for the past year. The claimant confirmed in evidence that exercises and medication help to control the impairments.[45]I find that the claimant’s impairment by way of BPPV had lasted 12 months by the time of the alleged failure to make reasonable adjustments in relation to the transfer request in August 2024. Further, the claimant was likely to have the impairments of BPPV/PPPD for longer than 12 months at the material time. If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal everyday activities, it is to be treated as continuing to have that effect if that effect is likely to recur. I find that recurrence of BPPV/PPPD was likely based on the OH reports of June and July 2024 indicating that the long-term outlook includes the possibility of recurrence. The indication that the condition might settle, does not lead me to conclude that the impairment would resolve.[46]The claimant was disabled by reason of IBS and Dyslexia. This is accepted by the respondent. The claimant was further disabled by reason of BPPV/PPPD both together and separately in August 2024.[47]The next hearing is a telephone case management preliminary hearing on 17 August 2026 at 2pm.