Miss S Murray v Scottish Courts and Tribunals Service: 8000984/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000984/2025Venue EdinburghHearing 16-18 September 2025
Between
Miss S MurrayClaimantScottish Courts & Tribunals ServiceRespondent
Before
Employment Judge SangsterDate 21 October 2025
JUDGMENT
The judgment of the Tribunal is that: The claimant was not a disabled person, for the purposes of the Equality Act 2010, in the relevant period, as a result of airborne fish allergy. Her complaints of disability discrimination are accordingly dismissed.
REASONS
[1]The claimant brings complaints of direct disability discrimination, discrimination arising from disability and failure to make reasonable adjustments. The complaints relate to the respondent’s withdrawal of an offer of employment for the role of Support Grade Assistant.[2]The case called for a final hearing in relation to these complaints. Disability status was not conceded by the respondent, nor determined in advance of the final hearing. E.T. Z4 (WR)[3]A joint bundle of documents was agreed, extending to 308 pages. 34 further pages were added to this by the claimant, with consent, at the commencement of the hearing.[4]The claimant gave evidence at the hearing. The respondent called two witnesses, namely: 4.1. Elaine Reid, Head of Administration for the respondent; and 4.2. Louise Miliken, Human Resources Business Partner for the respondent.
Issues to be Determined
[5]The issues to be determined were discussed at the start of the hearing. Both parties agreed that the Agreed List of Issues contained in the joint bundle of documents, accurately reflected the issues to be determined. The issues to be determined were accordingly as follows: Disability Status[6]Was the claimant a disabled person in terms of s6 of the Equality Act 2010 (EqA), on account of her airborne fish allergy, in the relevant period, namely November 2024 to January 2025 (the Relevant Period). Direct Discrimination[7]Did the respondent treat the claimant less favourably than they treated or would treat a hypothetical applicant for the role of the Support Grade Assistant who does not have a disability, namely an airborne fish allergy?[8]Was that less favourable treatment because of the claimant’s disability, namely her airborne fish allergy? Discrimination arising from disability[9]Did the respondent’s withdrawal of the offer of employment as a Support Grade Assistant constitute unfavourable treatment because of something arising in consequence of the claimant’s airborne fish allergy?[10]If so, was the withdrawal of the offer of employment a proportionate means of achieving a legitimate aim, namely protecting the claimant’s health? Duty to make reasonable adjustments[11]Did the respondent know, or ought they have known that the claimant was a disabled person in terms of s6 EqA due to her airborne fish allergy and that her disability was likely to put her at a substantial disadvantage in the recruitment process in comparison to non-disabled persons?[12]Did the practice of the respondent operating from premises which may contain fish products constitute a provision, criterion or practice in terms of s20(2) EqA?[13]Did that policy provision, criterion or practice put the claimant at a substantial disadvantage, namely that she could not work from the premises and fulfil the requirements of the role of Support Grade Assistant due to her airborne fish allergy?[14]Did the respondent take reasonable adjustments to avoid that disadvantage?
Remedy
[15]Has the claimant sustained wage loss as a consequence of being discriminated against by the respondents?[16]What steps has she taken to mitigate that loss?[17]What award should be made in respect of the claimant’s pain and suffering and what is the appropriate interest on that award? Disability Status[18]The first issue for the Tribunal to determine was disability status.
Relevant law
[19]Section 6(1) EqA provides: ‘A person (P) has a disability if — P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.’[20]Schedule 1 EqA contains supplementary provisions in relation to the determination of disability. Paragraph 2 states ‘(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.’[21]The ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (the Guidance) does not itself impose legal obligations, but the Tribunal must take it into account where relevant (Schedule one, Part two, paragraph 12 EqA).[22]The Guidance at paragraph B1 deals with the meaning of ‘substantial adverse effect’ and states ‘The requirement that an adverse effect on normal day-today activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect.’[23]Paragraph B1 should be read in conjunction with Section D of the Guidance, which considers what is meant by ‘normal day-to-day activities’.[24]Paragraph D2 states that it is not possible to provide an exhaustive list of dayto-day activities.[25]Paragraph D3 provides that: ‘In general, day-to-day activities are things that 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.’[26]D16 provides that normal day-to-day activities include activities that are required to maintain personal well-being. It provides that account should be taken of whether the effects of an impairment have an impact on whether the person is inclined to carry out or neglect basic functions such as eating, drinking, sleeping, or personal hygiene.[27]In Goodwin v Patent Office [1999] IRLR 4, the EAT held that in cases where disability status is disputed, there are four essential questions which a Tribunal should consider separately and, where appropriate, sequentially. These are: 27.1. Does the person have a physical or mental impairment? 27.2. Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities? 27.3. Is that effect substantial? 27.4. Is that effect long-term?[28]The burden of proof is on a claimant to show that he or she satisfies the statutory definition of disability. Findings in Fact[29]The Tribunal found the following facts, relevant to this issue, to be admitted or proven.[30]On 30 March 2004, aged 16, the claimant ate a fish supper. Around two hours later, she developed swelling around her eyes and mouth, but not her tongue. She called NHS 24, at around 20:43, and was advised to attend her local Accident and Emergency department. She did so and, by the time she arrived there 30 minutes later, at 21:13, the swelling was resolving. No medical treatment or medication was required. The claimant was however advised to attend her GP so that RAST testing, to identify any potential allergens, could be undertaken.[31]The claimant attended her GP in April 2004 for RAST testing and was informed of the results in May 2004, namely that the RAST testing for fish was 1.03, which was a moderate positive. She was given two EpiPens and advised not to consume fish or products containing fish. She followed that advice and never required to use the EpiPen. No further testing regarding a fish allergy was ever undertaken.[32]Prior to June 2019, the claimant was experiencing swelling of the lips occasionally. It was believed that this may be as a result of allergic reactions to food chemicals and she was prescribed fexofenadine, which she took daily. Whilst fexofenadine reduced the frequency with which she was having reactions, it did not remove them entirely. She was advised that she could take a further fexofenadine tablet on the onset of symptoms, to alleviate them. She was also referred to the West of Scotland Anaphylaxis Service in relation to this.[33]The claimant attended the West of Scotland Anaphylaxis Service on 26 June 2019. The consultant physician who she saw concluded that ‘there has been no great consistency with the foods and drinks that seem to precipitate symptoms. In general, at the moment, it is just small swellings of the lip. She, herself, thinks rapeseed oil is a fairly consistent factor but admitted, herself, that she does eat certain things with rapeseed oil with no reaction and her rapeseed antibody tests are negative. I suspect she is having non-allergic urticaria angioedema, there may well be a chemical trigger present in the food, many of the foods she described to me as having rapeseed oil in are preprepared food and therein may lie the issue. I suspect she is reacting to other added ingredients such as colourings, flavourings and, in particular, preservatives. She is going to make an effort to eat fresher food with no preservatives and also avoid fizzy drinks which she also takes quite a lot of, and has recognised that these can cause symptoms as well.’[34]In March 2023, while walking from Edinburgh Waverley to her place of work, the claimant experienced tingling and slight swelling of her lips, which she described as a ‘mild reaction’. She took a fexofenadine tablet, continued to work and the symptoms resolved.[35]On 22 August 2023, the claimant experienced neck swelling and pins and needles in her mouth, arms and neck while at work. She did not have any fexofenadine with her that day, so was unable to take an additional tablet to alleviate the symptoms. Her employer advised her to go home, which she did – travelling by train from Edinburgh Waverley to Linlithgow and then driving from Linlithgow station to her home. She took a fexofenadine tablet on her return home, but did not require any further medical treatment or intervention.[36]On 28 August 2023, the claimant attended her GP. She reported that she had had an allergic reaction on 22 August 2023. She stated that she believed this had been caused being in the same room as someone eating salmon. She stated that she had neck swelling and pins and needles in her mouth, arms and neck. She stated that she normally carried fexofenadine, but did not have it with her that day. She asked if she could leave fexofenadine and an EpiPen at work, in case she experienced a similar reaction in future. Her GP advised her that she could leave fexofenadine with her employer, but not an EpiPen, which she should personally be carrying at all times. The claimant did not mention any other reactions, no additional tests were instructed, and no further advice was given by the claimant’s GP. Observations on Evidence[37]There was some differential between the claimant’s account of her symptoms and those recorded in her medical records. While the claimant stated in her evidence that her recollection of symptoms was correct, rather than the medical records, the Tribunal concluded that the contemporaneous notes taken by medical professionals contain the more reliable account of the claimant’s symptoms at the time they were experienced. Where there was a difference, those were preferred.[38]While the claimant stated that she believed that the reaction she had in March 2023 (paragraph 34 above) and that in August 2023 (paragraph 35 above) were caused by fish particles in the air, she did not produce any evidence to confirm that was the case, and accepted that no tests have been done to ascertain whether she now had an airborne fish allergy. She confirmed that she will undertake activities such as those set out below, but not experience any adverse reactions: 38.1. Commuting to Edinburgh by train at peak times, 38.2. Eating/drinking in cafes such as Café Nero, where tuna melt paninis are cooked and served; and 38.3. In November 2023, she ate in the Hard Rock Café in London, without advance notification to them. Whilst her food was carefully prepared, to ensure no cross contamination with fish, she was able to eat in the main restaurant where fish had been served to other diners prior to her visit, and continued to be served during her visit.[39]Whilst she stated that there could be no other reason for her lips swelling in March and August 2023, this was inconsistent with the fact that she had repeated episodes of lip swelling in the run up to June 2019 (as recorded in paragraphs 32 & 33 above), and this was attributed to colourings, flavourings and preservatives in foods by the consultant she saw at the West of Scotland Anaphylaxis Service at that time.[40]The claimant accepted that she had never received advice from a medical professional to avoid bring in proximity of fish. The only medical advice has been to avoid consuming fish and fish products. Discussion & Decision[41]The Tribunal’s conclusions in relation to questions posed in Goodwin v Patent Office, in relation to the asserted impairment of airborne fish allergy, are set out below.[42]Does the claimant have a physical or mental impairment? While the claimant provided evidence to demonstrate that, in 2004, she tested moderately positive for a fish allergy, this related to consumption of fish by the claimant. No medical evidence was produced by the claimant regarding her assertion that her allergy developed into an airborne fish allergy in or around 2023. The Tribunal did not accept, in the absence of medical evidence, that the claimant had the impairment asserted, namely airborne fish allergy.[43]Was there an adverse effect on the claimant’s ability to carry out day to day activities as a result of the impairments? Whilst the Tribunal accepted the claimant’s evidence that she took steps to restrict contact with fish and fish products, as she believed she had an airborne fish allergy, she accepted that she had not been diagnosed with an airborne fish allergy, nor advised by a medical professional to avoid contact with fish or fish products. For the purposes of S.6 EqA, an asserted impairment must cause the required adverse effect on the person’s ability to do normal day-to-day activities, and the test of causation is objective. When it is in dispute whether an asserted impairment has the claimed effect, this must be determined by the Tribunal on the evidence before it; it is not enough that the claimant truly believes that it does. Therefore, in a case where a claimant asserts that engaging in a certain activity will risk triggering or exacerbating some adverse effect of the impairment itself, such as bringing on a seizure or adverse skin reaction or something of that sort, the Tribunal must consider whether it has some evidence that objectively makes good that contention (Primaz v Carl Room Restaurants Ltd t/a Mcdonald’s Restaurants Ltd and ors 2022 IRLR 194, EAT). In this case, whilst it is clear that the claimant believed that being in close proximity to fish or fish products would trigger an adverse reaction, there was no medical evidence to support that belief. No medical evidence was produced to demonstrate that any adverse effects on the claimant’s ability to undertake day to day activities were as a result of the asserted impairment, namely airborne fish allergy. The requisite causation was accordingly not established.[44]Was that effect substantial & long term? As the Tribunal found that the claimant did not establish any adverse effect on day to day activities caused by an impairment, these questions did not fall to be answered.[45]For these reasons the Tribunal concluded that the claimant was not a disabled person, as a result of airborne fish allergy, in the Relevant Period. As a result, none of her complaints of disability discrimination can succeed, and are dismissed.