Ms V Harvey v Secretary of State for Justice: 6029870/2025 and 6044316/2025

EMPLOYMENT TRIBUNALS

Case No 6029870/2025, 6044316/2025

Between

Ms V HarveyClaimant

Secretary of State for JusticeRespondent

Before

Employment Judge Lambert

In person for claimant

Miss Jennings (instructed by counsel) for respondent

Date 4 August 2026

JUDGMENT

The Claimant is not a disabled person for the purposes of the following impairments:

[1]Inducible Laryngeal Obstruction;

[2]Dysfunctional breathing / breathing pattern disorder;

[3]Probable asthma;

[4]Gastro-oesophageal reflux. The Respondent admitted that the Claimant was a disabled person due to the Claimant’s impairments of depression and anxiety and the Claimant’s claims based on these disabilities will continue.

REASONS

[1]This matter came before me at a public preliminary on 7th July 2026. Unfortunately I did not have sufficient time to give judgment on the day and reserved judgment in accordance with Rule 59 of the Employment Tribunal Procedure Rules 2024.

[2]The purpose of the hearing, as set out in a Case Management Order of EJ Salter dated 10th March 2025 and sent to the parties on 22nd March 2026 (“the Earlier CMO”), was to consider whether:2.1 the Claimant was a disabled person within the meaning of the Equality Act 2010 at the material time (“the EqA”); and

2.2 any other case management orders for the final determination of the remaining matters, although comprehensive directions had already been made by EJ Salter in the Earlier CMO.

[3]The Claimant relied upon the following impairments:3.1 Inducible Laryngeal Obstruction (“ILO”);

3.2 Dysfunctional breathing / breathing pattern disorder (“DBPD”);

3.3 Probable asthma;

3.4 Gastro-oesophageal reflux (“GORD”);

3.5 Depression; and

3.6 Anxiety. Depression and Anxiety admitted by Respondent

[4]In advance of the hearing, the Respondent confirmed to the Tribunal that it admitted that the Claimant’s impairments of depression and anxiety met the definition of disability and the claims relying on these impairments would continue to a final hearing irrespective of these findings. Preliminary Issues

[5]The parties had agreed and produced for use at this hearing a bundle of documents of 335 pages. This included a significant amount of GP notes and other medical records (“the Medical Records”), which was referred to during the hearing.

[6]The Claimant relied upon a disability impact statement contained within that bundle as her evidence in chief. This did not provide any references to the Medical Records and at the outset of the hearing I invited the Claimant to provide a list of the page numbers she specifically wanted me to review during a short adjournment when I would read into the documents. She did so and I confirmed that I had read these documents when the hearing reconvened.

[7]The Respondent adduced a witness statement from Ms Philippa Taylor-Yeomans challenging some of the Claimant’s assertions in her disability impact statement. It confirmed that Ms Taylor-Yeomans would not be present to be cross-examined. The Claimant objected to this being placed in evidence because she could not cross-examine Ms Taylor-Yeomans and it was disclosed late.

[8]The Claimant confirmed she had reviewed the statement in advance of this hearing. I reviewed the statement and it appeared to provide relevant evidence. I considered that it was in the interests of justice to allow the statement to be adduced in evidence although, in the light of Ms Taylor-Yeomans not providing live evidence, I confirmed I would consider what weight I would apply to it. I informed the Claimant that she would be able to make comments upon this statement during closing submissions, should she so wish. As it happened, I applied very low weight to Ms Taylor-Yeomans statement but accepted it at points where it was consistent with other evidence.

[9]I adjourned the hearing to read through the documents I was directed to by the parties.

Facts

[10]These findings of facts are made on the balance of probabilities.

[11]The Claimant’s evidence was that she was involved in a work-related incident on 27th September 2023. This was not disputed by the Respondent. From this date, the Claimant asserted that she developed various symptoms linked to ILO, including the involuntary closure of her vocal cords during breathing, resulting in breathlessness, choking sensations, noisy breathing and, she stated in her evidence that the Medical Records recorded a risk of her fainting.

[12]She explained that individually and cumulatively, her symptoms affected her and ability to work consistently.

[13]The Claimant confirmed that she received a diagnosis of ILO on 13th December 2024 as described in the Medical Records. The Claimant described the main impact of the ILO upon her as causing breathlessness triggered by walking, climbing stairs, stress, smoke or irritants. This led to her avoiding stairs and certain environments, having difficulty speaking and a need to stop and recover during routine activities. She described similar impacts with the DBPD, which included shallow, rapid or irregular breathing. In addition, the symptoms she developed for asthma were wheezing and chest tightness and for GORD, were throat irritation and night reflux.

[14]The Claimant was very clear at the outset of her evidence

[15]In terms of medical treatment, the Claimant confirmed that she was issued with a Salamol inhaler for possible asthma from October 2023 until December 2023 but stopped using it because it was not effective. She was prescribed another inhaler containing Beclometasone/Formoterol from October 2023 which she used intermittently. She accepted that this was used as a preventative measure for possible asthma. She also took Omeprazole from October 2024 for GORD. The other medications described in the statement were related to her accepted disabilities of depression and anxiety, which were not relevant for this hearing. To assist with ILO, the recognised treatment was through physio and using breathing exercises, which the Claimant received.

[16]The Claimant accepted that there was a significant improvement in her symptoms between January 2025 and July 2025 and she returned to work in August 2025.

[17]The Claimant’s evidence was that when taken together, the effect of ILO with DBPD and GORD had a significant adverse effect upon her ability to carry out normal day to day activities. In cross examination, the Claimant was taken to the Medical Records and made several concessions. She conceded that:17.1 nowhere within the Medical Records did it state that she was at risk of fainting, despite her statement stating this in her evidence.

17.2 the Medical Records did not state that she suffered with a choking sensation, although she explained it was a symptom she had faced.

17.3 within the work environment, the Respondent made adjustments for her to attend meetings via Teams, to avoid her climbing stairs. Despite this she would often attend meetings on a face-to-face basis even where she had to climb stairs. This was in contrast to her evidence on this point although the Claimant suggested that she only did so when the Respondent provided her with no option but to attend a face to face meeting. The evidence that the Claimant would walk upstairs with no difficulties to complete her work was supported by Ms Taylor-Yeomans statement.

17.4 in relation to asthma, the Medical Records recorded on 24th January 2024 that the Claimant’s “…history [is] not consistent with asthma” (p.216); that on 23rd July 2024, the word “asthma” was changed to “suspected asthma” and on 7th August 2024 there was a reference to “querying asthma”.

17.5 GORD is a very common condition and that a gastroscopy report, carried out on the Claimant on 8th May 2025 and contained within the Medical Records, confirmed that all of the findings were normal and this was an “unremarkable examination.”

17.6 in relation to the DBPD, that whilst there were references within the Medical Records to “unexplained breathing symptoms” and “element of dysfunctional breathing” there was no conclusive diagnosis of DBPD. She also conceded that references to breathing issues within the Medical Records were only between June 2024 and December 2024.

17.7 The alleged impairments of GORD and the DBPD did not have a substantial impact on her ability to carry out normal day to day activities, but their effect was to exacerbate the symptoms of ILO.

17.8 her symptoms of ILO waxed and waned.

[18]The Medical Records confirmed on 24th January 2024 that spirometry tests and FeNo tests were carried out on the Claimant and these were clear. These are tests often used to confirm a diagnosis of asthma. The Medical Records also contained several Occupational Health reports. One dated 21st June 2024 confirmed that the Claimant had informed the practitioner that she had encountered breathing issues. The other OH reports dated 28th January 2025, 20th March 2025 and 16th April 2025 made no reference to the Claimant’s breathing issues, although a later one did make such a reference.

[19]The Claimant accepted that the Medical Records confirmed on 8th July 2025 that she was back in the gym carrying out weightlifting, cardio (bike and running) and rowing. She had recently completed a 1,500m and was training for a Hyrox event. This is a high intensity event which requires entrants to alternate between eight 1 km runs and exercises such as burpees, sled pushes and lunges whilst being timed. The Claimant’s evidence on the Hyrox event was contradictory. She initially explained that it was due to the respiratory symptoms she was experiencing that led to her withdraw from the Hyrox event. However, when referred to Medical Records, she clarified that she withdrew from this event because of an injury to her ankle. Respective Positions Claimant’s case 18. The Claimant’s case was that she suffered with the symptoms of ILO, which were exacerbated by the symptoms of asthma, DBPB and GORD. This affected her and ability to work consistently. She accepted that GORD and DBPD did not have a substantial adverse effect on her ability to carry out day to day activities, but did so when considered alongside the ILO. 19. The Medical Records supported that she had these conditions and she met the definition of a disabled person for all of these impairments. Respondent’s case

[20]The Respondent’s case was that the Claimant may have had some of the symptoms complained of, but the Medical Records were not that supportive of the Claimant’s position. ILO

[21]The only reference to an actual diagnosis for ILO in the Medical Records was on 13th December 2024. It says that this is insufficient for a diagnosis that the Tribunal should rely upon because ILO is usually confirmed by an ENT specialist after completing a laryngoscopy. This did not happen in the Claimant’s case. Further there was little analysis of how the Claimant met the conditions for this impairment and reliance upon the Medical Records should be treated with caution. Asthma

[22]The evidence on asthma was inadequate because the spirometry and FeNo tests were clear, demonstrating that the Claimant did not have asthma. This was consistent with the Medical Records which stated that the Claimant’s history was not consistent with asthma. This pointed towards the Claimant not having the impairment complained of. GORD

[23]Similarly, the evidence for GORD was that a gastroscopy examination was normal with an unremarkable examination. This evidence pointed towards the Claimant not having the impairment complained of. DBPD

[24]In respect of DBPD, whilst there was evidence that the Claimant had some unexplained breathing symptoms, the Medical Records only supported this from June 2024 until December 2024. The Respondent contends that this is not sufficient to make a finding of disability. Exaggeration

[25]The Respondent also suggested that the Claimant was prone to exaggerating her condition, with a view to increasing the success of ongoing litigation, and her evidence should be treated with caution. Within the Medical Records, there was an entry on 22nd March 2024 by someone at the surgery stating: …I don’t feel comfortable and patient requesting it states respiratory disease rather than stress, discussed no testing/diagnosis of this yet and I don’t know what would be appropriate to write. Agreed best if GP does her sick note…

[26]The evidence was that the fit note that was issued explained her absence as stress. The Respondent suggested this was evidence that the Claimant was attempting to influence the Medical Records to support her argument, when the position was not that clear.

The Law

[27]Section 6 of the EqA provides: 1) A person (P) has a disability if—(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

[28]Part 1 of Schedule 1 to the EqA provides further detail to Section 6 by confirming that a long-term effect is one that has lasted for, or is likely to last for, at least 12 months, or the rest of the life of the person affected. It also provides that if measures, including medical treatment, is being used to treat or correct any impairments, then any determination of disability should discount the use of such medical treatment.

[29]Section 212 of the EqA provides that the word “Substantial” means more than “minor or trivial”.

[30]Part 2 of Schedule 1 to the EqA requires Tribunals to take account any relevant guidance including that issued by the Equality and Human Rights Commission, Guidance on Matters to be taken into account in Determining Questions relating to the Definition of Disability (2011) (“the Guidance”).

[31]Sections D2 and D3 of the Guidance provides: 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. 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 workrelated 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.

[32]The burden of proof is upon the Claimant to prove she is disabled within the meaning of the statutory definition on the balance of probabilities: Morgan v Staffordshire University

[2002] IRLR 190

, EAT.

[33]The Tribunal must not rely on the medical evidence to such an extent as to usurp its own function under the Act: Abadeh v British Telecommunications plc

[2001] IRLR 23

, EAT. In this case, the Employment Appeal Tribunal reminded Tribunals that: ‘it is not the task of the medical expert to tell the tribunal whether the impairments were or were not substantial. That is the question which the tribunal itself has to answer.”

[34]The effect of an impairment can be more than ‘trivial’ yet still be ‘minor’ as opposed to ‘substantial’: Anwar v Tower Hamlets College

UKEAT/0091/10

Conclusion

[35]Section 6 of the EqA sets out the definition for each alleged disability that has to be met. Asthma

[36]In terms of asthma, the Medical Records suggested that contrary to her case, the Claimant did not have the impairment of asthma.

[37]There was the reference within the Medical Records to her “…history [is] not consistent with asthma” as well as the clear spirometry and FeNo tests. This points towards the Claimant not having the impairment of asthma. Apart from the Claimant’s own evidence, the only supportive medical evidence is the prescription of inhalers to her. However, in the Claimant’s own evidence, these were not of much use to her and she stopped using Salamol soon after it was prescribed to her and only used the Beclometasone/Formoterol inhaler intermittently. The Claimant has the burden of proof on disability and from the evidence available, I do not consider that the Claimant had a physical impairment of asthma.

[38]Taking all of this evidence into account and noting that the Claimant herself describes it as “probable asthma”, I was not satisfied that the Claimant had asthma. GORD

[39]In terms of GORD, the Claimant accepted this was a common condition although the impairment did not have a substantial adverse effect upon her. The Medical Records confirmed that the Claimant had been prescribed omeprazole although the gastroscopy report confirmed that upon examination all was normal and it was an unremarkable examination. The Medical Records points towards the Claimant not having an impairment of GORD although upon her own case, irrespective of whether she had the impairment or not, it did not have a substantial adverse effect upon her abilities to carry out normal day to day activities. It follows that the Claimant is not a disabled person due to GORD. DPBD

[40]In terms of DPBD, the Medical Records suggested that the Claimant had unexplained breathing difficulties between June 2024 and December 2024. The Claimant accepted in evidence that this did not have a substantial adverse effect upon her abilities to carry out normal day to day activities.

[41]It follows that the Claimant is not a disabled person based on DPBD because it did not have a substantial effect. ILO

[42]The Claimant relied upon the Medical Records describing a diagnosis of ILO on 13th December 2024. However, she explained that this condition fluctuated or waxed and waned and it was not a constant. Her evidence was more nuanced in that she clarified that she relied upon GORD and DBPB alongside her diagnosis of ILO, which she said worked to exacerbate her ILO symptoms and when considered in totality meant that it had a substantial and long-term adverse effect on her ability to carry out normal day to day activities.

[43]The Claimant’s evidence was that when she had a flare up, it affected her and ability to work consistently. However, she did not provide any specific evidence to support these assertions other than fairly generic references within her statement and evidence to not being able to walk up more than one flight of stairs at a time.

[44]I accepted the Respondent’s invitation to treat the Claimant’s evidence with caution because whilst giving evidence she often provided evasive answers not directly answering the question posed. Several times I had to intervene to request the Claimant to answer the question posed. I also noted her initial answer to the question why she did not complete in the Hyrox event, which she stated was due to her having breathing difficulties. It was only when she was taken to a document within the Medical Records which confirmed that she did not compete due to a foot injury that she changed her answer. This affected her credibility as a reliable witness. Indeed, the Claimant’s ability to train for and consider competing in an event of this nature points towards any effect being unlikely to recur.

[45]I also treated the OH reports with some caution because on most occasions these were carried out via telephone assessments and were based mainly upon the Claimant self reporting her issues.

[46]Moreover, I noted the evidence within the Medical Records where the person recorded that they were “uncomfortable” in complying with the Claimant’s request to provide the reason for her sickness absence as respiratory disease rather than stress. I consider there is some merit in the Respondent’s assertion that the Claimant may have had one eye on producing evidence to support litigation.

[47]From the Claimant’s evidence and that provided in the Medical Records, I was not satisfied that there was a substantial and adverse effect on her ability to carry out normal day to day activities. I remind myself that the word “substantial” means more than minor or trivial and that this a relatively low threshold. Taking a step back and considering the totality of the Claimant’s evidence, I was not satisfied that the effects of her impairments reached that threshold.

[48]The evidence, which she agreed, was that she could climb stairs to attend meetings and that she was going to the gym to carry out activities such as weightlifting, completing cardio work outs and training for a hyrox event. This evidence pointed against her assertions that her impairments affected her any ability to work consistently. I also took into account the tests for asthma and GORD, described above which also pointed towards the Claimant not having the impairments, but also the symptoms she relied upon to establish that the various impairments, either individually or even taken together, amounted to a disability for the purposes of the EqA.

[49]From this evidence, I have concluded that the Claimant was unable to establish that any of the disabilities she relied upon met the definition of a disability within the meaning of Section 6 of the EqA and her claims to be disabled due to ILO, GORD, DPBD or asthma fail.

[50]As indicated at the outset, the Claimant is a disabled person at the material time for the purposes of anxiety and depression and her claims that are reliant upon these disabilities will continue. Authorised by