Employment Judge E MannionMs K Howard (instructed by Solicitor) for respondentDate 18 July 2025
JUDGMENT
The Judgment of the Tribunal is the claimant was a disabled person for the purposes of the Equality Act 2010.
REASONS
[1]This is a claim of disability discrimination and non-payment of wages which is contested by the respondent. The issue of whether the claimant was a disabled person in terms of section 6 of the Equality Act 2010 (“the Equality Act”) was to be determined as a preliminary issue at this hearing.[2]The claimant gave evidence on his own behalf. There were no respondent witnesses.[3]A joint bundle of documents was prepared and lodged by the respondent. This included some of the claimant’s medical records but did not include items such as xrays results or letters from the claimant’s consultants or GP. He submitted that these were the medical records provided by his medical practitioners but that Crosshouse hospital has either lost documents or sought a fee for the provision of documents.
Relevant law
[4]Section 6 of the Equality Act provides a definition of “disability” as follows: (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.[5]The leading case of Goodwin v Patent Office 1999 ICR 302 provided the four step test that the Tribunal must apply when considering the question of disability status. The steps, which are to be considered sequentially, are as follows:a. Did the claimant have a physical or mental impairment?b. Did the impairment affect the claimant’s ability to carry out normal day to day activities?c. Was the adverse effect substantial?d. Was the adverse effect long term?[6]The burden of proof is on the claimant to show that he was disabled. In applying the Goodwin steps, the Northern Ireland Court of Appeal in Veitch v Red Sky Group 2010 NICA 39 held that industrial tribunal erred when they assumed the claimant had an onus of producing medical evidence to underpin his case for every aspect of the Goodwin steps, and in the absence of such evidence, his claim failed. This was deemed to be too strict an approach. Rather a Tribunal should assess the medical evidence available to it to assess the claimant’s disability status.[7]A lack of medical evidence was considered by the EAT in Igweike v TSB Bank plc 2020 IRLR 267 where Auberbach J at paragraph 50 notes: [I]t is a practical fact that, in some cases of this type, the individual’s own evidence may not be sufficient to satisfy the tribunal of the existence of an impairment. In some cases, even contemporary medical notes or reports may not be sufficient, and expert evidence prepared for the purposes of the litigation may be needed. To say all of this is not to introduce either of these legal heresies by the back door. The question is a purely practical or evidential one, which is sensitive to the nature of the alleged disability, the facts, and the nature of the evidence, in the given case.’ Medical evidence is not always necessary to establish that the claimant was suffering from a physical or mental impairment.[8]Section 212(1) of the Equality Act provides that “substantial” means more than minor or trivial.[9]Schedule 1 of the Equality Act gives further details on the determination of a disability. For example, Schedule 1 para 2(1) provides that the effect of an impairment is long term if it has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected.[10]The Tribunal must take into account Statutory Guidance on the definition of Disability (2011) which stresses that it is important to consider the things that a person cannot do, or can only do with difficulty (B9). This is not offset by things that the person can do. This is also confirmed in Aderemi v London and South Eastern Railway Ltd 2013 ICR 391. Day to day activities are things people do on a regular or daily basis such as shopping, reading, watching TV, getting washed and dressed, preparing food, walking, travelling and social activities. This includes work related activities such as interacting with colleagues, using a computer, driving, keeping to a timetable etc (Guidance D2 – D7)
Issues
[11]None of the elements of the definition of disability were conceded. Therefore the Tribunal has to determine the following issues:9.1 Did the claimant have a physical impairment?9.2 If so, did that impairment have an adverse effect on his ability to carry out normal day to day activities?9.3 If so, was that effect substantial ( as in more than minor or trivial)?9.4 If so, was the effect long term? Findings in fact[12]The Tribunal makes the following findings in fact on the balance of probabilities having considered the available evidence.[13]The claimant was diagnosed with Chronic Obstructive Pulmonary Disease (“COPD”) on the 16 December 2024. COPD is a life-long condition. This followed a period where he was treated for ongoing chest infections and coughing from August 2024 onwards. This resulted in number of absences from work between August and December 2024. Upon his diagnosis on 16 December, he was absent from work due to sickness until his employment ended on 13 February 2025. On 12 September 2024, his coughing brought about a seizure or blackout while on a Teams call at the respondent offices.[14]Since his diagnosis in December 2024, he has been referred to a COPD nurse who he sees on a monthly basis and assesses his symptoms by asking questions about his sleeping patterns, walking distances, ability to dress himself and his comfort of breathing. The answers to this are then scored against a graph/scale. Month on month, his scoring has increased as his COPD has detiorated. The COPD nurse also administers a breathing test and checks how he uses his inhaler.[15]The claimant has been prescribed Trimbo, a steroid inhaler which he takes morning and evening and Ventolin. These medications are to assist and manage his symptoms of breathlessness with the inhalers in particular focusing on opening up his bronchioles. His COPD nurse informed him at his appointment in June that he is taking the highest dose of Trimbo and will need to look an alternative steroid inhaler to manage his symptoms. He has been given a “rescue pack” from his GP which he needs to have with him at all times. This contains steroids and antibiotics which he must take as soon as he notices any symptoms of a chest infection. He also has a nebulizer.[16]The primary symptoms of COPD as they affect the claimant are breathlessness, light-headedness and coughing. He described a constant feeling of breathlessness. The mucus on his lungs is such that he wakes coughing at 3am almost every might and does not resume sleep.[17]He is unable to climb a flight of stairs. He cannot lift anything of any weight. His partner does all of his shopping for him. Bending down makes him lightheaded and breathless and so tying his shoes, putting on his socks or trousers is difficult. He requires help dressing himself. Any bending motion whereby his head is below his chest causes light-headedness.[18]As well as a seizure/blackout in the respondent offices on 12 September, he has blacked out a number of times at home due to coughing. This has made him afraid of driving long distances. He continues to drive, particularly the short journey to work of only a few minutes in length. He described his daily activities as comprising of going to work and coming home again.[19]The claimant was able to travel abroad for a holiday in November 2024. He has not travelled since. Observations on the evidence[20]The claimant gave his evidence in a clear way and I considered he was giving an honest account of events as he remembered them. Submissions[21]Both parties made submissions at the conclusion of evidence, with Ms Howard referring to the case law where relevant. For brevity I have not included their submissions in this judgment but they were fully considered when coming to the decision below.[22]Dealing first with issue of physical impairment, while the respondent questioned why the medical records did not contain the result of his chest xrays, sputum test results and a letter from his GP confirming his diagnosis of COPD, there was no challenge of the oral evidence of the symptoms suffered by the claimant from 12 August 2024 onwards or his diagnosis on 16 December 2024. At most, it was put to the claimant that his breathlessness was caused by smoking, which he denied.[23]Ms Howard’s submission that there no contemporaneous evidence of a physical impairment and no medical evidence of a new diagnosis of COPD on 16 December 2024 is noted but not accepted. As per Igweike, it is not the case that an absence of medical evidence requires the Tribunal to decide the claimant does not have a physical impairment. Even so, the medical records at pg 68 of the bundle under the heading ‘active problems’ notes the diagnosis of Chronic obstructive pulmonary disease as of 16 December 2024 and again on pg 105 of the bundle the claimant attended his GP who noted “New COPD. Heavy symptom burden, coughing constantly and expectorating phlegm daily”. The ET3 notes the claimant’s absences from work from 12 August onwards as a result of chest infections. I am satisfied based on the claimant’s unchallenged evidence and the medical evidence provided that he was suffering from a physical impairment from the 12 August 2024. This was treated initially as a series of chest infections until the diagnosis of COPD in December 2024. Did that impairment have an adverse effect on her ability to carry out normal day- to-day activities?[24]Turning to the effect of that impairment on his day to day activities, I note the terms of the Statutory Guidance that I should focus not on what the claimant could do but what he could not do or only do with difficulty. I accept that there were things the claimant was able to do, such as driving short distances, taking short walks, working. I do not consider that these findings contradict the claimant’s evidence, which I have accepted, that he had difficulty dressing himself, particularly putting on socks, shoes and trousers. He was able to do this but only with difficulty and with assistance from others. He spoke about his light-headedness and breathlessness in undertaking these tasks. He was unable to climb stairs and unable to lift items of any weight. His partner undertakes shopping for him. His sleep was regularly disturbed by coughing. Was that effect substantial?[25]For the effect to be substantial, it requires to be more than trivial or minor. Ms Howard submitted that for the adverse effect to be substantial, it cannot be just that the activity is done with difficulty or reluctance. I do not accept this submission. This qualifier is not referred to in the Statutory Guidance nor in caselaw. Tribunals are required to consider whether the adverse effect is substantial in light of the statutory definition – more than minor or trivial.[26]On the basis of the evidence given to me by the claimant and the facts as set out above I consider that throughout the period from 12 August 2024 until his employment ended on 13 February 2025, his impairment was having an effect on his day to day activities, namely climbing stairs, putting on socks, shoes and/or trousers and lifting items, that was more than minor or trivial. His evidence that he could not climb the stairs or could not lift things was not challenged. An inability to climb stairs or lift things is inherently substantial rather than minor or trivial. So too with putting on socks, shoes or trousers which he stated he needs assistance with as any action where his head falls below his chest causes light-headedness and breathlessness. While it was put to claimant that his difficulty dressing was due to other medical conditions, he did not accept that. Was the substantial adverse effect long term?[27]I then have to consider whether the substantial adverse effect was “long term”. The period from 12 August 2024 to when the claimant’s employment ended on 13 February 2025 is less than 12 months and so I have to consider whether it was likely to last for 12 months (till August 2025). The fact that it has, in fact, lasted for that period is not relevant. The question is whether it was likely to last for that period as at December 2024, January and February 2025 when the alleged discrimination occurred.[28]I consider that it was likely. Ms Howard correctly pointed out that the claimant has not been hospitalized, is not required to use an oxygen tank, has not been referred to a respiratory consultant nor been referred for pulmonary rehabilitation. The claimant’s response to these points was ‘not yet’ or ‘not so far’. Her position was that his condition is only being treated by way of Trimbo and Ventolin with the inference that it is not particularly serious. I do not have expert medical evidence setting out the prognosis of COPD for the claimant. The claimant described it as a life long illness which will get increasingly worse and it is within judicial knowledge that COPD is a progressive disease. It is not a condition a person recovers from. The claimant’s breathlessness while sitting at home over the course of the hearing, which lasted a number of hours, was observed. His evidence that his condition has deteriorated since the diagnosis is accepted. He has been provided with a COPD action plan, a rescue pack from his GP and has a monthly appointment with a COPD nurse who undertakes breathing tests and as assessed his scores as increasing rather than decreasing on a monthly basis.[29]Having considered the evidence before me, I conclude that the substantial effect on the claimant’s day-to day activities would likely to have lasted for at least 12 months from the onset on 12 August 2024.[30]In conclusion, I consider that the claimant did have a disability and the claim can proceed. Further procedure[31]The Tribunal will contact the parties separately about further procedure in this claim. For the avoidance of doubt, the findings in fact in this judgment relate only to the issue of disability status. They would not bind a future tribunal dealing with the merits of the claim and considering issues such as knowledge of the respondent.