Ms R Daniel v London General Transport Services Ltd T/a Go Ahead London: 6021067/2024

EMPLOYMENT TRIBUNALS

Case No 6021067/2024

Between

Ms R DanielClaimant

London General Transport Services Ltd T/a Go Ahead LondonRespondent

Before

Employment Judge A Beale

Mx O Davies (instructed by Counsel) for claimant

Mr Michael White (instructed by Counsel) for respondent

Date 21 April 2026

JUDGMENT

[1]The judgment of the Tribunal is that the Claimant was not a disabled person within the meaning of s. 6 Equality Act 2010 by reason of back/shoulder injury over the relevant period (between 18 January and 6 December 2024).

[2]The claims for indirect discrimination and failure to make reasonable adjustments in relation to the Claimant’s back/shoulder injury therefore fail, and are dismissed.

[3]The Respondent has conceded that the Claimant was a disabled person within the meaning of s. 6 Equality Act 2010 by reason of migraine throughout the relevant period, and her claims for indirect discrimination and failure to make reasonable adjustments in relation to migraine will therefore proceed to a final hearing.

REASONS

[1]Reasons for the judgment were given orally on the date of the public preliminary hearing, but the Claimant having requested written reasons in accordance with rule 60(4D) of the Employment Tribunal Rules, these are duly provided below.

Introduction

[2]The Claimant brings claims for indirect discrimination and failure to make reasonable adjustments relying on two separate disabilities: migraine and a back/shoulder injury.

[3]The Respondent has conceded that the Claimant was a disabled person by reason of migraine throughout the relevant period.

[4]The Respondent disputes that the Claimant was a disabled person by reason of back/shoulder injury during the relevant period. The Claimant’s case is that she was disabled by reason of back/shoulder injury between 18 January and 6 December 2024. Documents and Witness Evidence

[5]For the purpose of determining this question, I was provided with an agreed bundle, which included an impact statement from the Claimant. A supplementary witness statement was also provided, which was dated 13 April 2026. The Respondent noted that this statement had been served late, but did not object to its use.

[6]The Claimant gave evidence and was cross-examined. At the very end of her cross-examination, it was put to her that there were no notes of her physiotherapy attendances in 2024. In response to this question and in reexamination, the Claimant said that these notes did exist and had been provided to her solicitor. There followed a discussion in which, effectively, the Claimant made an application to be permitted to rely upon the 2024 physiotherapy notes, whether during the course of today’s hearing, or, if appropriate, following an adjournment, and the Respondent resisted that application. I heard the arguments and refused that application. Although I have not been asked to set out my written reasons, I do so for completeness.

[7]The Claimant disclosed medical information prior to the initial case management hearing in this case on 16 February 2026. A further tranche of medical information was disclosed following the case management hearing in accordance with the orders made, together with a disability impact statement. The disability impact statement, which the Claimant approved, did not refer to physiotherapy treatment.

[8]A supplemental witness statement was produced on 13 April 2026, which appears to have been drafted by solicitors. It makes reference to physiotherapy for the Claimant's whiplash injuries on various dates in 2024. There is supporting evidence that physiotherapy was provided in other documents in the bundle (in the Occupational Health report from 19 March 2024, and in the medico-legal report dated 19 October 2024). However, the physiotherapy notes have not been disclosed to the Respondent and are not before the Tribunal.

[9]The Claimant has been legally represented throughout the proceedings. There was no request from her solicitors to add the physiotherapy notes to the bundle before today’s hearing, and no additional questions were asked of her in chief in relation to them. In cross-examination it was put to the Claimant that there were no physiotherapy notes from 2024 in the bundle, and she agreed with this, but said it had all been “sent over”. In reexamination, she explained that she meant she had sent the notes to her solicitor. This point could not be checked with the solicitor as she is on leave. However, the fact that the supplementary statement records the precise dates of the physiotherapy sessions in 2024 supports the Claimant’s position.

[10]My initial view was that the records should be now be provided to the Respondent, and that consideration should be given to whether the Respondent could proceed today, or whether an adjournment would be required to enable the Respondent properly to consider the records, with the possibility of cost consequences if the Respondent chose to apply. The Respondent objected to this position on the basis that:(1) the Claimant had had multiple opportunities to disclose her medical records;

(2) she was legally represented;

(3) the situation regarding the physiotherapy notes was raised only in re-examination, which raised practical problems given that the Claimant’s cross-examination had already been completed. Assuming an adjournment was required (which the Respondent said it would be, as disclosing and expecting the Respondent to prepare cross-examination on notes from multiple physiotherapy sessions on the day would not be reasonable) there would at the very least be a gap in the evidence (if the matter was reserved to me), or alternatively, the cross-examination would have to be repeated.

[11]On behalf of the Claimant, Mx Davies pointed out that the error seemed to be that of the Claimant’s representatives and not her own, and that proceeding to make a decision in the absence of documents known to exist would be unfair and not in accordance with the overriding objective. There were practical solutions to the situation; it might be possible to proceed today; alternatively, the Respondent might concede disability after reviewing the documents or failing that, the matter could be adjourned, reserved to me and the Claimant could remain under oath.

[12]I have given careful consideration to the arguments. I do consider that there is prejudice to the Respondent in having to deal with the documents on the day, such that an adjournment would be appropriate. It would be unfair to expect the Respondent to review documents from multiple physiotherapy sessions and cross-examine on those records in the time remaining today. I also consider that a difficulty is posed by this issue not having been identified and dealt with – as it very clearly should have been – on drafting the statement, or even before the Claimant began giving evidence this morning. The fact that the Claimant has already been cross-examined and has given virtually all of her evidence makes adjourning the hearing more difficult in that realistically it would either have to be reserved to me (and inevitably my grasp of the evidence will be lessened as a result of the delay) or relisted before another judge with concomitant delay and expense, not only for the Respondent but for the Tribunal and other users.

[13]I also appreciate there is prejudice to the Claimant in not having all of the evidence on which she would wish to rely available. However, it does appear that the missing documentation is the fault of the Claimant’s representatives, who (assuming the material was provided to them as the Claimant says) were given multiple opportunities to disclose this evidence, and prepared not only the bundle but also the supplementary statement that refers in some detail to these documents.

[14]In addition to the above considerations, I have reviewed the evidence I have and I am of the view that I have a large amount of medical evidence that should enable me to determine the question of disability fairly. Whilst the notes are clearly relevant evidence, there is great deal of other medical evidence, including medical notes and reports which refer to the Claimant’s physiotherapy.

[15]I have decided that, balancing the prejudice to the parties, and taking into account the overriding objective (including the need to deal with cases in ways that are proportionate to the complexity and importance of the issues, and the need to save expense), the fairest and most proportionate course is to refuse the application to adduce the physiotherapy notes at this stage, and to proceed with the hearing today. Submissions

[16]I was provided with a helpful skeleton argument on behalf of the Claimant, and both representatives made oral submissions, to which I refer where appropriate in my reasons below.

Findings of Fact

[17]There is no dispute that the Claimant was involved in a road traffic accident on 18 January 2024. The Claimant’s own account of this accident in her witness statement is that she suffered whiplash to her neck, lower back pain, bruised ribs, shoulder pain and surface wounds. She says she had pain in her neck, back and shoulders with reduced range of motion, which made tasks such as turning her head and everyday tasks such as cooking and lifting difficult.

[18]The Claimant's GP notes record the following, in a note dated 13 February 2024 by a Dr Mooney: “Few weeks ago involved in RTA, driver, van crashed into drivers side RTA 18/1. Did not seek medical attention at the time. Mid and lower back pain, and pain in neck, and some pain in right side chest – constant, back pain worse on movement, standing/walking. Pain in chest/shoulder constant, no bruising but reports area tender...no numbness/tingling/weakness in arms/legs, able to walk but uncomfortable. No bowel/bladder disturbance ...Off work last week, now returned, seen by work PT today who adv she should not be in work as exac injuries, has booked f/u for 2 weeks, has given exercises to do. Works as bus driver. Feels pain worse since back at work last 2 days. Taking otc ibu and pct – helping...”

[19]A fit note was provided following this attendance, which said the Claimant may be fit for work with amended duties and altered hours. The note further recorded “back neck chest pain following RTA, may be exacerbated by sitting for long period of time/physical work.”

[20]The Claimant returned to her GP on 19 February 2024, where the note, again by Dr Mooney, records “...looks well and comfortable at rest, nil bruising/lacerations. Right side ant chest wall tenderness to palpation. Pain and restricted shoulder rom – c/o pain ant chest wall rather than shoulder, no tenderness on palpation of shoulder joint/clavicle. No spinal bony tenderness. Tender right trap/scap area and mild in sacral area. Legs – power 5/5 throughout, normal gait, normal sensation....works as bus driver – went back to work but found exac the pain and difficult to twist to check mirrors/blind spot. Seeing physio through work - next appt next week, also has home exercises. Mainly pain right chest wall and lower back, was wearing seat belt....bruising and muscular strain post rta, discussed simple analgesia as need, will try ibu topical and heat. To keep moving, doing physio and stretches, would expect to get better in next 2 weeks...”

[21]A further fit note was issued by Dr Mooney on 19 February 2024, giving the condition as “road traffic accident – chest/back pain”. It stated that the Claimant may be fit for work with adapted duties. The note adds “chest/back pain – may be exacerbated by certain movement or sitting in the same position for a prolonged period.”

[22]The next GP note on 27 February 2024 records that a new statement had been issued that the Claimant was not fit for work. In that statement the Claimant was signed off as unfit to work by reason of “motor vehicle traffic accident” until 12 March 2024. This note was not signed by Dr Mooney but by a different GP, Dr Perren.

[23]There is a further GP note on 13 March 2024 by Dr Mooney which reads “on admin for extension of fit note – asking for at least one month to be given. Given amended duties after review 19/2, already had one extension. RTA on 18/1 back in back chest since, works as bus driver, found it hard to turn around. Now 2 months since accident - would expect to be a lot better. Comment – for f2f for review – Med 3 certificate not issued to patient.”

[24]Dr Mooney sent a text message to the Claimant noting that she would expect her to be much better two months after the accident and asked for a face to face review.

[25]There is no record of any face to face review, but there is a fit note dated 13 March 2024, which sets out the condition as “anterior chest wall pain, left shoulder pain secondary to accident” and signs the Claimant off for a period of a month until 13 April 2024. On the balance of probabilities, I consider the reference to left shoulder pain here to be an error, given that(i) the previous detailed medical notes all refer to right anterior chest wall pain, and tenderness in the right trapezius/scapula; and

(ii) this medical note was produced by a third GP, Dr Sivadhas, who had not examined the Claimant.

[26]The Claimant was reviewed by Occupational Health (‘OH’) via telephone on 19 March 2024. The resulting report notes the reason for referral as “RTC not work related – off since 14/2/24. Currently having physio but unable to give a RTW date. Whiplash in neck and chest on right side. Struggling to check blind spot when driving.” The diagnosis was persisting neck and low back pain following major road traffic collision. The doctor considered the Claimant was likely to be fit to return to normal duties within one month. The final comments state: “This driver was injured in a major road traffic collision. She sustained injuries to her neck, ribs, right knee and lower back. Her symptoms are now improving. She still has some neck and lower back pain. She is now having weekly physiotherapy. Her main issue at the moment is turning her head to look behind her. If her recovery continues at the current rate I anticipate she will be well enough to resume her normal bus driving duties in the next one month”.

[27]It appears that the Claimant did return to work within a month of the report.

[28]As mentioned in the GP notes, the Claimant commenced physiotherapy on 13 February 2024. The Claimant’s account, which I accept, is that she received physiotherapy on 13 February, 27 February, 12 March, 19 March, 26 March, 2 April, 9 April, 23 April and 7 May. The Claimant says that she was advised to have additional sessions after 7 May, and to do exercises at home in the interim, and I have no reason to doubt this evidence, although it does not appear that the additional sessions were ever granted by the insurers.

[29]In her oral evidence, the Claimant explained that she had initially not been able to do much in her physiotherapy sessions because of bruising to her ribs. When she was asked about the GP’s view that she should have been much better after two months, she said “If I didn’t have bruised ribs, in two months I would have been healed”.

[30]The Claimant says that as of May 2024, she still had tender, painful back and shoulder and sharp pains in her neck, chest and shoulder with certain movements, restricted movements and pain due to weakness. This does not align with the OH report from March, which states that her main difficulty was in turning her head when driving (which can only have been based on a selfreport from the Claimant). It is no criticism of the claimant, as she is now being required to recall symptoms from two years ago when she has since had at least two further road traffic accidents, but on the balance of probabilities, I consider it likely that the OH report from 19 March 2024 correctly characterises her main problem. This symptom is likely to have improved by 13 April 2024, hence the Claimant’s return to work. I consider that if the Claimant’s symptoms had been as severe and wide-ranging as described at paragraph 10 of her supplemental witness statement, it is unlikely that she would have returned to work when she did.

[31]There is again no dispute that the Claimant was involved in a further road traffic accident on 26 June 2024. The Claimant says this aggravated her neck, chest, left shoulder, upper back and mid back pain, which affected her ability to carry out normal day to day tasks.

[32]There are no contemporaneous medical records relating to this accident, the Claimant says (and I accept) because physiotherapy was arranged for her via her insurance. This is referenced in the medico-legal report of Dr Bobby Hussain-Kazmi, which was written for the purposes of a personal injury claim in relation to the accident on 26 June 2024 on 19 October 2024. The report notes that the Claimant had received 6 physiotherapy sessions, and this coincides with the Claimant’s own evidence that she had physiotherapy between 24 September and 19 November 2024.

[33]I should note that the Claimant did see OH over this period, but this attendance was requested in relation to her stress absence, not her physical health. The contents of the letter produced by OH after the appointment are disputed; however, I note that the letter records that the Claimant found steering single decker buses more difficult because of rib injuries sustained in a previous RTA. Although the Claimant challenged much of the letter subsequently, she did not challenge the explanation of why she found steering single decker buses difficult.

[34]Dr Hussein-Kazmi's medico-legal report notes that the Claimant had sustained injury when another vehicle struck her car from the rear, which caused moderate damage to the vehicle, and had no treatment at the scene or post-accident. The report states that the Claimant originally had moderate to severe symptoms in her neck, left shoulder, chest, upper back and mid back and left forearm. By the time of the report four months post-accident, the symptoms were reported to be mild. It was noted that the Claimant was signed off work (although this is not recorded in the report, I note that at this stage the absence was recorded as due to stress). Activities of housework, lifting, driver discomfort and gym were said not to be possible in the initial stage after the accident, although in fact the Claimant continued driving buses for a month after the accident. At the time of the report, these activities were said to be “restricted”.

[35]The report states that the Claimant had never been involved in an accident causing significant personal injury in the past and that she did not have any pre-existing joint or spinal condition. The Claimant states that she did inform Dr Hussain-Kazmi of her previous accident, but he did not include it because he said it was whiplash and not a “life-changing” condition. In general, I accept that the Claimant has given credible evidence and I accept that she told the doctor about the previous accident. However, the lack of further physiotherapy after 7 May 2024 and the discounting of any previous significant personal injury or joint/spinal condition in Dr Hussain-Kazmi's report lead me, on the balance of probabilities, to the conclusion that the Claimant’s symptoms had largely if not entirely resolved by the time of the second accident.

[36]Dr Hussain-Kazmi reports that, on examination, all of the relevant areas were normal, save for tenderness on palpation. There was a full range of movement albeit it is said (in relation to neck, back and left shoulder) with pain at the limits. This is notable as, when the Claimant sought further medical attention in April 2025 following another road traffic accident, the physiotherapy records state that movement was significantly restricted in both the neck and the shoulder. It is clear that this later accident caused significant further injury, and it is possible that the account the Claimant now gives of her symptoms in 2024 is mixed with the symptoms she experienced later, in 2025.

[37]Dr Hussain-Kazmi's diagnosis was that the neck, left shoulder, chest, upper back, mid back and left forearm injuries were all due to a whiplash injury, and were entirely due to the material incident. He anticipated a full recovery, within approximately 9 months from the date of the accident (for the relevant musculo-skeletal injuries).

[38]As noted above, the Claimant’s evidence is that she was discharged from physiotherapy on 19 November 2024 – she says “as we did not get a response from my insurer for extra sessions”. This is different from the Claimant’s evidence in relation to the position in May 2024, when she specifically says that extra sessions were requested by her physiotherapist. On the balance of probabilities, I find that the Claimant was discharged at this point as her treatment was complete. The Claimant’s evidence is that her pain was reduced but certain movements would exacerbate this, and that she was given exercises, some using weights of up to 10kg, to continue with. There is no further detail in either witness statement of precisely what the Claimant was and was not able to do at this time.

[39]The Claimant’s claim was submitted on 6 December 2024, and that is the end of the relevant period for the purposes of determining disability.

The Law

[40]Section 6 Equality Act 2010 (‘EqA 2010’) provides that a person has a disability if he/she has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on her ability to carry out normal day to day activities.

[41]Further information about that definition is given in Schedule 1 to the EqA 2010. In particular, in relation to long-term effects, paragraph 2 states that the effect of an impairment is long-term if:(a) it has lasted for at least 12 months;

(b) it is likely to last at least 12 months; or

[42]Paragraph 2 further provides that, if an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-today activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

[43]It is well-established that the word “likely” in this paragraph, and in other contexts related to the definition of disability, should be read as meaning “could well happen” (see Boyle v SCA Packaging

[2009] ICR 1056

[44]In Patel v Oldham Borough Council and another

[2010] ICR 603

, the ET found that the claimant had suffered a mild myelitis between February and December 2005, affecting her groin and left leg. By January 2006, she had developed a secondary myofascial pain syndrome which affected the left groin and upper leg. In September 2006, she suffered an injury whilst restraining a pupil which resulted in pain in the left shoulder and neck and exacerbated the pain in her left groin and leg. The judge found that the claimant was not disabled because she had suffered from two different physical impairments over two separate periods, but the adverse impact of each did not last 12 months. It was accepted on behalf of the complainant that unrelated consecutive impairments could not be taken together to determine the duration of an impairment. The EAT held that the ET had erred, in that the effect of an illness or condition likely to develop, or which had developed, from another illness or condition formed part of the assessment of whether the effect of the original impairment was likely to last or had lasted at least 12 months.

[45]I pause here to note that this case was decided under the old provisions of the Disability Discrimination Act 1995, which differed from the EqA 2010, in that they provided that a gap in symptoms could be bridged not only if the substantial adverse effect of the impairment was likely to recur as set out above, but also if it had recurred (after that gap, but still within the relevant period); paragraph 2 of Schedule 5 DDA 1995. There is no equivalent provision in the EqA 2010.

[46]The question of whether a substantial adverse effect is long-term (including the question of whether it is likely to recur) falls to be determined based on the situation that pertained at the relevant time; see McDougall v Richmond Adult Community College

[2008] ICR 431

. The ET must not have regard to changes in the condition (or the continuation of the condition) after the end of the relevant period.

[47]I also, for completeness, note paragraph 5 of Schedule 1 EqA 2010, which provides that an impairment is to be treated as having a substantial adverse effect on the ability of a person to carry out normal day to day activities if measures are being taken to treat or correct it and, but for those measures, it would be likely to have that effect.

Conclusions

[48]I have not found this case at all straightforward, as it is a relatively unusual situation. On careful consideration of the arguments, medical records, witness evidence and authorities, I have reached the following conclusions.

[49]The Claimant clearly suffered a whiplash injury affecting her neck, chest wall, right shoulder and mid – lower back on 18 January 2024. I find on the basis of the evidence before me that this injury had a substantial adverse effect on her ability to carry out day to day activities at least until her return to work on 13 April 2024, and on the balance of probabilities probably until or shortly before her final physiotherapy session on 7 May 2024.

[50]However, I do not consider the evidence sufficient to show, on the balance of probabilities, that the Claimant continued to suffer a substantial adverse effect on her day to day activities beyond that date. This is because(i) the Claimant returned to work and to her usual duties, and did not take further sickness absence until after the second accident;

(ii) although she says further physiotherapy was suggested, it never occurred;

(iii) as I have already explained above, on the balance of probabilities I think it likely that the Claimant told the medical expert she saw on 19 October 2024 that her symptoms from the first accident had largely or entirely resolved;

(iv) there is no further reference to continuing problems arising from the first accident in her medical records.

[51]I accept that the Claimant sustained further injuries in a road traffic accident on 26 June 2024. Those were also whiplash injuries that were similar in nature, but not the same, as those sustained in January 2024 – namely, pain in the neck, upper and mid (rather than primarily lower) back pain and left shoulder and forearm pain (not the right as in the previous accident).

[52]I accept that the accident had a substantial adverse effect on the Claimant’s ability to perform normal day-to-day activities, certainly during July 2024, as described in the Claimant’s witness statement and, on the balance of probabilities, during the period when she was receiving physiotherapy up to 19 November 2024. However, I cannot conclude, on the balance of probabilities, that the impairment continued to have a substantial adverse effect after that point. The Claimant’s own evidence is that, by this point, her pain was reduced and that certain movements exacerbated it – but this is vague and does not refer to any specific movements or activities. I also note that she was given exercises using 10kg weights. Although I appreciate the threshold is a low one, there is insufficient evidence for me to conclude that any substantial adverse effect continued beyond the end of the Claimant’s physiotherapy in November 2024.

[53]On that basis, I must find that the Claimant was not disabled by reason of any back/shoulder injury because, even if the periods of substantial adverse effect between 18 January and 19 November 2024 are to be amalgamated, the total period over which the impairment gave rise to a substantial adverse effect was less than 12 months. There is no evidence on the basis of which I can find that the substantial adverse effect was likely to recur; the recurrence that did occur in 2025 (to which I should not, in any event, have regard) was caused by a further road traffic accident.

[54]In case I am wrong about this, I have reached the following further conclusions:(a) As I have already found above, the Claimant sustained two separate whiplash injuries in January and June 2024.

(b) There is no basis for a finding that the injuries were connected in the way discussed in Patel. Although the Claimant has asserted that the second accident exacerbated the injuries from the first, that is not supported by medical evidence. The injuries were not in the same locations (unlike the symptoms suffered by the claimant in Patel). The argument is further undermined by the report of Dr Hussain-Kazmi, which is clear that the symptoms the Claimant was reporting in October 2024 were entirely attributable to the second accident.

(c) I have found on the facts that the effects of the January accident ceased to be substantial by around May 2024. However, even had that not been the case, there is no evidence on the basis of which I could have found that the effects of that accident were likely to continue for at least 12 months. In fact, the evidence I have from March 2024 (there being no medical records before me from a later date) suggests that the symptoms were likely to resolve within a month.

(d) I have also found on the facts that the effects of the June 2024 accident ceased to be substantial by around November 2024. However, even if I am wrong about that, given that January and June whiplash injuries must be treated as separate, the best case the Claimant can make is that Dr Hussain-Kazmi opined that there would be a full recovery from the June injury within 9 months of the accident, i.e. by 26 March 2025. Recovery was therefore expected within less than the 12 months required under paragraph 2 of Schedule 1 to the EqA 2010, and there was no evidence before me to suggest that, at the relevant time, the adverse effect “could well” continue beyond that point.

[55]For all of these reasons, I have concluded that the Claimant was not disabled by reason of her back/shoulder injuries over the relevant period. The claims arising from the back/shoulder injuries are therefore dismissed, and the claim will therefore proceed in relation to migraines alone.