Ms M Sheridan v Past Due Credit Solutions and J Sharma: 8001747/2025
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant was disabled in terms of Section 6 of the Equality Act 2010; the claim will now proceed to a final hearing as previously directed.REASONS
[1]This was a Preliminary Hearing (PH) to determine whether the claimant was disabled in terms of Section 6 of the Equality Act 2010 (the EQA). The claimant appeared on her own behalf. Mr Devlin, the first respondent’s HR manager for the respondents, appeared for both respondents.[2]The single matter before the Tribunal is disability status. The claimant relies upon the impairment(s) of asthma and allergies.[3]The relevant period is the period in which it is said the claimant was subjected to disability discrimination. The Tribunal understands to be from 24 April 2025 until 6 June 2025.[4]The impartments relied upon are asthma and allergies[5]In determining disability status, the matters which the Tribunal has to decide upon, as identified in a note following a PH for case management purposes, are whether during the relevant period: Did the claimant have the impairment of asthma and or allergies? Did the impairment have a substantial adverse effect on the claimant’s ability to carry out day-to-day activities? If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment? Would the impairment have had a substantial adverse effect on the claimant’s ability to carry out day-to-day activities without the treatment or other measures? Were the effects of the impairment long-term? That is did they last at least 12 months, or were they likely to last at least 12 months? If not, were they likely to recur?[6]The claimant gave evidence. Both parties lodged bundles of documents. Findings in fact[7]The claimant, whose date of birth is 21 October 1971, was diagnosed with asthma and hay fever as a child. Since childhood she has had asthma and allergies to dust, pollen, cut grass and animals.[8]The claimant’s asthma is triggered by the environmental factors of dust, pollen, cut grass and animals.[9]The claimant takes care to keep her house dust free. She wears a mask if she is going out on public transport or going out shopping.[10]When the claimant’s asthma is triggered, this causes her to have difficulty breathing and she has the symptoms of wheezing; a blocked/ congested and runny nose; itchy throat, eyes and ears; regular coughing; teary eyes; and she feels the need to spit regularly.[11]As a result of the symptom of difficulty breathing, the claimant’s ability to speak is impacted. She feels as if she is counting her words and the; she cannot get all of her words out. She has to take breaks from speaking, for example if she is speaking to someone on the telephone. As a result of this the coherency of her speech is noticeably impaired.[12]The claimant’s difficulty in breathing impacts her ability to do exercises including walking. With the use of an inhaler, the effect impact of this is that if she walks too quicky, she has to slow down.[13]The claimant has not experienced the symptoms of her condition for a number of years. The claimant uses medication to control her symptoms. The claimant has attended her GP for treatment. From at the latest June 2020, she has used an inhaler. The sections of the claimant’s GP records which were produced indicate that she attended her GP in June 2020 suffering from a dry cough and that she was prescribed the use of an inhaler.[14]She has been prescribed medication for her allergies throughout her adult life. For around the last six years, since living in Scotland, the claimant has been prescribed Fexofenadine to control the impact of her allergies. She takes this medication every day. Prior to the prescription of Fexofenadine, she was regularly prescribed other similar medication for the same reason, which she took regularly.[15]The claimant has also been prescribed blink intensive eye drops for her symptoms of teary eyes which she administers 4 times a day. She also takes vitamin supplements and herbal remedies which she finds helpful.[16]If the claimant did not take Fexofenadine, it would be difficult for her to leave her home environment, because of her exposure to the environmental factors which trigger her allergies and result in her asthma. The result of her not taking her medication would be that she would expreience difficulty in breathing; she would be unable to get all her words out and she would have to take regular breaks from speaking , the result of which would be that the coherency of her speech to be impaired. If the claimant did not have the use of her inhaler when she required it she would have difficulty breathing which would impact her ability to speak coherently or to exercise, including walking. Note on Evidence[17]The Tribunal found the claimant to be generally credible and reliable. Mr Devlin questioned the claimant as to why she had not produced all of her medical records, however, the claimant is unrepresented and the Tribunal accepted that she had produced what she had available to her with no ulterior motivation. Submissions[18]Both parties made submissions which are dealt with below where relevant.Consideration
[19]The claimant has the burden of proof to establish disability status under the Equality act 2010. 1. The EQA at section 6 defines disability: (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. 2. Supplementary provisions on disability status are contained in Schedule 1 to the EQA, and in the Guidance on matters to be taken into account in determining questions relating to the definition of Disability (the Guidance), . 3. Schedule 1 (a) Part 1 to the EQA provides 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 for at least 12 months or) it is likely to last for the rest of the life of the person affected” 4. Impairment is to be given its ordinary and natural meaning. It is a matter for the tribunal to make a decision in each case on whether the evidence available establishes that the applicant has a physical or mental impairment within the stated effects. 5. There is no need to establish a medically diagnosed cause for the impairment, but there must be a finding that there is an impairment. 6. In relation to normal day-to-day activities the Guidance provides: “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.” 7. Substantial means “more than minor or trivial”. 8. The adverse effect should be assessed having discounted any positive impact which is associated with any treatment regime. 9. The focus should be on what an employee cannot do or can do only with difficulty, and not on what they can easily do. 10. An impairment will have a long-term effect only if the effect has lasted for at least 12 months, the period for which it lasts is likely to be 12 months or it is likely to last for the rest of the life of the person affected (paragraph 2(1), Schedule 1). The Guidance clarifies that “likely” means “could well happen”.[20]The Tribunal was satisfied that the claimant had the impairment of asthma and allergies. She produced a letter from her GP confirming a diagnosis of asthma, and she gave credible evidence about the allergies that she had to environmental factors since childhood. She gave credible evidence that she had been diagnosed with asthma and hay fever in childhood and explained that her hay fever resulted in her allergies. Mr Devlin raised in cross examination that the GP report confirming the claimant’s asthma diagnosis was dated January 2026, and did not confirm a historic diagnosis of asthma, however the Tribunal found the claimant’s evidence about her diagnosis of asthma to be credible. Furthermore, GP records were produced confirming the claimant had attended her GP in 2020 and been prescribed an inhaler, which supports the claimant’s evidence as to her impartment of asthma having been diagnosed some time ago, prior to January 2024.[21]The Tribunal then considered whether the impairment had a substantial long term adverse effect on the claimant’s ability to carry out day to day activities. The claimant frankly admitted in her evidence that she had not experienced a flare up in the symptoms as a result of condition for a number of years.[22]However, in determining whether the claimant’s impairments had a substantial adverse effect on her ability to carry out normal day to day activities, the effects of medical treatment on the impairment should be ignored. If an impairment would be likely to a have substantial adverse effect but for the fact that measures are being taken to treat it, it is treated as having that effect (paragraph 5(1) of Schedule 1 of the EQA). That is so even where the measures taken result in the effects of the impairment being completely under control or not apparent at all (paragraph B13 of the Guidance).[23]Mr Devlin questioned the credibility and reliability of the claimant’s evidence as to whether her asthma and allergies had a substantial adverse effect on her ability to carry out day-to-day activities if she had not had medication or the use of an inhaler.[24]The claimant has been taking Fexofenadine on a daily basis for the last 6 years. In evidence in chief the claimant said that without her medication life would be very difficult, she would not be able to breath and not able to speak. She explained that the difficulties in speaking she experienced when she had a flare up of her condition were that she felt she had to count her words, that she could not get her words out and that she had to take regular breaks from speaking , all of which affected the coherence of her speech. She indicated that she did not want to think about what it would be like without her medication. On cross examination, the claimant said that she would not be able to go out at all because of difficulty breathing. She said however in cross examination that this was not a fact.[25]The Tribunal did not consider that too much turned on this statement (that it was not fact) on the part of the claimant. The fact that the claimant has been regularly prescribed Fexofenadine, which she takes daily and has the use of an inhaler as required, on balance, renders it not unlikely in the Tribunal’s view that the claimant would suffer the effects she described if she did not take medical treatment. The Tribunal was also supported in this conclusion by the fact that the claimant uses coping strategies to manage her condition, in particular keeping her house dust free and wearing a face mask while travelling or shopping. The fact that the claimant adopts these strategies, in addition to taking medication and using an inhaler tends to suggest on balance that her assessment of the effect of her condition absent medication are not unrealistic.[26]The Tribunal then considered if the effects of the claimant’s impairment had a substantial adverse effect on her ability to carry out day to day activities, and if this was long term.[27]The Tribunal was satisfied that the effect of her impairment would be that her breathing would be affected to the extent that she would experience difficulty in talking to the extent that she speech would become noticeably incoherent. In reaching this conclusion the Tribunal take into account the that the claimant felt that she had to ‘count her words’ and could not get all her words out and that she would have to take breaks from speaking. The Tribunal was satisfied that speech was a day to day activity and that losing noticeable coherence of speech was an impact which was more than trivial or minor and was a substantial adverse impact.[28]The Tribunal was satisfied that this impact was long term in that it had lasted for 12 months prior to 24 April 2025. It reached this conclusion on the basis that the claimant had experienced the impairment of asthma and allergies since childhood. The Tribunal is concerned with whether the effects of the impairment, as opposed to the impairment, is long term. The effects of the impairment again have to be considered ignoring the effects of medical treatment. On the basis that the claimant had been prescribed and taken Fexofenadine medication for 6 years prior to the date of the alleged discriminatory treatment, the Tribunal conclude that the effects of the effects of the claimant’s impairment had lasted more than 12 months as at the date of the alleged discriminatory treatment, and were long term.[29]The Tribunal therefore concluded that the claimant was disabled in terms in terms of section 6 of the EQA.[30]This case will now proceed to a final hearing as directed.