AA v BB and Others — 2019

The hearing at Bristol on 12 and 13 December 2019 dealt only with the first preliminary issue: whether the claimant was a disabled person for Equality Act 2010 purposes at the material times. The tribunal considered epilepsy, vitiligo, astrocytoma/brain cancer, organic psychosis, and dermatitis, but did not determine the substantive discrimination claims. It applied section 6 of the Equality Act 2010 and the Schedule 1 tests for long-term and substantial adverse effect, with reference to the claimant's condition as at the material times rather than at the date of hearing.

The tribunal held that the claimant was disabled by reason of epilepsy and vitiligo. It accepted that epilepsy had been longstanding, with nocturnal seizures and the aftermath of seizures affecting daily life, and that the claimant's fear of SUDEP and avoidance of triggers such as chemicals, alcohol, coffee, and medication contributed to a restricted lifestyle. It also found vitiligo caused long-term restrictions, including avoiding sunlight, cosmetics, and chemicals. On the evidence as a whole, and alternatively cumulatively, those effects were more than minor or trivial.

The tribunal rejected disability status by reason of cancer. It found the 2008 astrocytoma was surgically removed and was classified at the time as benign and low grade, and it was unable to find on the balance of probabilities that the tumour was cancer. The claimant's reliance on general public-health material and academic articles was not enough without medical evidence directed to her own condition, and the medical records did not contain a doctor's diagnosis of cancer. The tribunal also held that, even if the historical tumour had been cancer, it would not have assisted the claimant on the claims before it, which began about ten years later.

The tribunal similarly rejected disability status by reason of organic psychosis and dermatitis. It accepted that the claimant suffered psychosis after surgery and spent time in hospital, but found there was insufficient evidence of a substantial long-term effect at the material times. It found the dermatitis noted in late 2018 was mild, responded to treatment, and was not long-term. In reaching these conclusions the tribunal cited MOD v Hay, Leonard v Southern Derbyshire Chamber of Commerce, J v DLA Piper, Chief Constable of Dumfries & Galloway v Adams, Cruickshank v VAW Motorcast, Richmond Adult Community College v McDougall, SCA Packaging v Boyle, Selkent Bus Co Ltd t/a Stagecoach Selkent v Moore, and Lofty v Hamis.