Mr R Barker v Tayside Public Transport Co Ltd T/a Xplore Dundee: 8001577/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001577/2025Venue DundeeHearing 11 December 2025
Between
Mr Roger BarkerClaimantTayside Public Transport Co Ltd t/a Xplore DundeeRespondent
Before
Employment Judge M SutherlandMr R McNeil (instructed by Solicitor) for claimantMs G Todd (instructed by Solicitor) for respondentDate 27 January 2026
JUDGMENT
The judgment of the Tribunal is that the claimant was disabled at the relevant time.
REASONS
[1]The claimant has presented complaints of disability discrimination. An open preliminary hearing was arranged to determine whether the claimant was a disabled person at the relevant time. Both parties had professional representation.[2]The claimant asserts that he was disabled at the relevant time by reason of the physical impairment of Atrial Fibrillation (‘AF’). For the purposes of this hearing the relevant time was the period from 29 January to 17 April 2025 (which period encompasses both his dismissal and appeal).[3]At today’s hearing the claimant gave evidence on his own behalf and the respondent called Stephen Riggans, Area Director. A joint bundle of documents was provided which included an impact statement.[4]The issues to be determined were – Disability statusa. At the relevant time, did the claimant have a physical impairment?b. If so, did that impairment have a substantial adverse effect on his ability to carry out normal day to day activities?c. If so, was the substantial adverse effect long term?
Findings of fact
[5]The tribunal makes the following findings in fact-[6]The Claimant was employed as a Bus Driver from 14 April 2014 until his dismissal on 29 January 2025.[7]On 16 September 2024 the Claimant was diagnosed with Atrial Fibrillation (AF). He was not aware of any symptoms prior to diagnosis although he was suffering from some tiredness. He was diagnosed with as a consequence of undertaking routine tests required for his bus driver’s license.[8]AF is a type of irregular heart rhythm which can lead to poor blood flow and an increased risk of clots, strokes and, if untreated, heart failure. It is a permanent condition which is managed with prescribed medication. The claimant started taking medication for AF in September and December 2024. He experienced fatigue as a consequence of taking that medication. This fatigue materially affected his ability to perform household chores, walk the dog and undertake DIY.[9]On 8 October 2024 the Claimant had his bus driver’s license revoked by DVLA and was advised to re-apply once his condition had been controlled for three months. His ordinary driver’s licence was unaffected.[10]On 16 October 2024 his GP provided a Fit Note certifying that he was not fit for work because of AF and flutter for 56 days (8 weeks). It did not advise that he may be fit for work with adjustments including amended duties.[11]On 21 October 2024 the Claimant attended an initial welfare meeting with Operations Manager, Matthew Wright.[12]On 18 November 2024 the Claimant attended an appointment at Ninewells Hospital and was scheduled for a Cardioversion procedure on 12 February 2025.[13]On 15 January 2025 Stephen Riggans, Area Director (‘SR’) held a Welfare Meeting with the claimant. SR noted that the claimant’s prolonged absence was due to a cardiological-related issue affecting his heart rhythm. As a result of that meeting the claimant accepted a job in the travel shop which he performed for half a day.[14]On 21 January 2025 his GP provide a Fit Note certifying that he was not fit for work because of AF and flutter for 56 days (8 weeks). It did not advise that he may be fit for work with adjustments including amended duties.[15]On 29 January 2025 Jamie Cuthill, Allocations Manager held a Formal Welfare Meeting with the Claimant. According to the notes of the meeting the claimant stated that he had a cardioversion on 12 February, he is also on tablets but he doesn’t think that they are doing what they are meant to be doing, if everything is ok after the 3 months then he can apply for his license back.[16]On 29 January 2025 the respondent terminated his employment on grounds of capability due to ill-health and not holding the required vocational license.[17]On 12 February the claimant underwent a cardioversion which tries to restore the heart to a normal rhythm. This was effective to some degree but he still required to take medication.[18]On 13 February the claimant appealed the decision to dismiss. On 27 February 2024 an appeal hearing was chaired by Stephen Riggans, Area Director. It was adjourned to allow more information to be obtained.[19]On 10 March the respondent received a letter from the claimant’s GP which advised he had been diagnosed with AF, that he was taking medication to manage this, these medications cause him to be drowsy, and it was possible he could have a recurrence of his symptoms.[20]On 26 March 2025 the claimant attended OH who provided a report which noted that he did not experience any symptoms apart from feeling tired.[21]On 17 April Stephen Riggans advised the claimant that his appeal was not upheld. Observations on the evidence[22]The standard of proof is on balance of probabilities, which means that if the Tribunal considers that, on the evidence, the occurrence of an event was more likely than not, then the Tribunal is satisfied that the event did occur.[23]The claimant gave evidence that he was told in November 2024 that he would have AF for the rest of his life; that he was told in about December that it was permanent. There was no reason to doubt the credibility or reliability of that evidence.[24]The claimant suffered and continues to suffer fatigue as a consequence of taking the medication for AF which he started taking in September 2024. This is also described in the medical reports provided by the AF clinic. The claimant stated in evidence that his fatigue has got progressively worse. The claimant provided an impact statement in which he stated that the fatigue materially affected his ability to walk the dog, do DIY and household chores and he now requires mid-day naps.[25]On 15 January 2025 SR held a Welfare Meeting with the claimant. SR noted that “I emphasised that his ongoing absence has substantial implication for the business…Recalling that Roger had previously indicated a willingness to take on other duties to remain employed during this uncertain period, I proposed a temporary position at our City Hub Travel Show that the claimant had previously indicated a willingness to take on other duties to remain employed…By conclusion of our discussion, Roger agreed to accept the Travel Shop assignment. Both parties recognised that this solution allows him to retain employment…” SR gave evidence that at the Welfare Meeting the claimant presented as any fit individual would and that the claimant had stated that he didn’t feel any different. It was put to the claimant in cross examination that he had offered to do any work for the company. The claimant explained in response that this offer was subject to medical advice and that he made the offer because he didn’t want to lose his job. It is reasonable to infer that the claimant offered to undertake alternative duties to avoid dismissal.[26]On 29 January 2025 Jamie Cuthill, Allocations Manager held a Formal Welfare Meeting with the Claimant. According to the notes of the meeting the claimant stated “I don’t think I was ready to go back to work then, I don’t think I was suited for the role as well as it was a lot to do with computers and I’m really not the best with them. I also wasn’t given an opportunity to get medical advice about returning to work and this made me feel really anxious and stressed which is not a good thing for my condition”. It is considered likely that that his issue with computers was not the only reason for ceasing the alternative duties. Submissions[27]The Claimant’s oral submissions were in summary as follows –a. The claimant takes medication to treat his AF which causes fatigue that has a more than minor effect on his ability to carry out normal day to day activities.b. AF is a lifelong condition and the effect is therefore long term.[28]The Respondent’s oral submissions were in summary as follows –a. The tribunal must consider the effect if medical treatment were to be stopped (Woodrup v London Borough of Southwark [2002] EWCA Civ 1716, 2002 WL 31476346). No account can therefore be taken of the side effects of medication. He was asymptomatic prior to diagnosis and treatment.b. Disability status must be determined with reference to the information available at the relevant time and not with the benefit of hindsight.c. It is accepted that he was more tired than normal at the relevant time but tiredness is not a day to day activity; he was willing to work. Inability to work in his chosen career is not a normal activity (Chief Constable of Lothian and Borders Police v Cumming [2010] IRLR 109)d. There was no medical evidence that at the relevant time the effects were likely to last at least 12 months. Discussion and decision Disability status[29]Section 6 of the Equality Act provides that: (1) A person has a disability if: (a) that person has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.[30]In determining disability status the Tribunal must take into account any aspect of the Guidance on the definition of Disability (2011) and the EHRC Code of Practice on Employment (2015) which appears to be relevant.[31]The burden of proof is upon the Claimant. At the relevant time, did the claimant have a physical impairment?[32]At the relevant time the claimant had the physical impairment of Atrial Fibrillation (‘AF’). Did that impairment have an substantial adverse effect on his ability to carry out normal day to day activities?[33]The impairment must cause an adverse effect on normal day to day activities but it need not be a direct causal link.[34]Paragraph 6 of Schedule 1 of the EA 2010 provides: “(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if—(a)measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect”. (2) Measures” includes, in particular, medical treatment…”[35]The tribunal must therefore deduce the effect on activities if medication or treatment were to cease unless it has resulted in a permanent improvement. Contrary to the respondent’s submission this does not require any adverse effect of medication on normal day to day activities to be discounted. Instead the tribunal is required to consider the actual effects (under Section 6) and also the deduced effects (under paragraph 6) of the impairment with and without medication. It would be highly surprising if the law required consideration of deduced effects without medication but prohibited consideration of actual side effects with medication.[36]Since September 2024 the claimant has taken prescribed medication to reduce the risk of clots, stroke and heart failure arising from AF. The claimant suffered fatigue as a consequence of that medication. That fatigue materially affected his ability to perform household chose, walk the dog and undertake DIY. These are things people do on a regular or daily basis and are therefore day to day activities (Guidance D2– D3).[37]The adverse effect must be substantial. Section 212(1) of the Equality Act provides that “substantial” means more than minor or trivial. The EHRC Code notes that a disability is “a limitation going beyond the normal difference in ability which might exist among people”. The effect of his fatigue on these activities was material and therefore more than minor or trivial.[38]Accordingly at the relevant time his AF had a substantial adverse effect on his ability to carry out normal day to day activities. Was the substantial adverse effect on his ability to carry out normal day to day activities long term?[39]Schedule 1 paragraph 2(1) of the Equality Act provides that the effect of an impairment is long term is 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.[40]In SCA Packaging Ltd v Boyle 2009 UKHL 37, the House of Lords ruled that “likely to” in this context means “could well happen” rather than “more likely than not”. This must be judged at the relevant time and not with the benefit of hindsight. An employment tribunal should disregard events taking place after the relevant period but prior to the tribunal hearing.[41]At the relevant time the adverse effect had not lasted for 12 months. The issue therefore is whether it was likely to last for at least 12 months or the rest of his life. “Likely” means it could well happen rather than more likely than not. AF is a permanent condition which is managed by medication. Fatigue is a side effect of that medication. Judged at the relevant time it could well have been the case that the claimant would be on medication for AF for at least 12 months, and indeed the rest of his life, and it could well have been the case that this medication would continue to have substantial adverse effect on his ability to carry out normal day to day activities. The substantial adverse effect was therefore long term.
Conclusion
[42]The claimant was disabled by reason for AF at the relevant time (from 29 January to 17 April 2025).