Miss K Walsh v Newross Impex Ltd — 2020

The only claim formally disposed of in this judgment was the direct disability discrimination claim, which had been withdrawn at a preliminary hearing on 19 July 2019 and was recorded as dismissed on withdrawal. The judgment otherwise dealt with a preliminary issue: whether the claimant was a disabled person for the purposes of the Equality Act 2010 during the relevant period.

The tribunal accepted the claimant as credible on the progress and effects of her condition and the treatment she received, and it rejected the respondent’s submission that her evidence was inconsistent with the medical records. It found that she had endometriosis, that she first experienced symptoms in January 2018, and that the condition progressed through 2018 with increasing pain and stronger medication. It also accepted that the claimant’s ability to manage a two-week trip to the Far East did not undermine her account because she adjusted how she travelled and managed her pain.

Applying the statutory definition of disability, the tribunal held that the claimant had a physical impairment from January 2018 and that, discounting painkillers, the impairment and pain had a substantial adverse effect on her ability to carry out normal day-to-day activities, in particular walking and sitting, from at least mid-October 2018. It found that the cyclical pain meant the effect was likely to recur from that point, and that from December 2018 it was continuous. The tribunal was not satisfied that, before surgery on 17 December 2018, the substantial adverse effect was likely to be long-term, because there was insufficient medical evidence that surgery would probably reduce the effect to something less than substantial.

The tribunal concluded that by 24 December 2018, a week after surgery, it had become apparent that the surgery had not resolved the pain and may have increased it, so that the substantial adverse effect could well last until at least mid-October 2019. It therefore found that the claimant was a disabled person within the meaning of the Equality Act 2010 throughout the period from 24 December 2018 to the termination of her employment on 28 February 2019. No remedy was awarded in this judgment because the substantive discrimination claims were not determined on their merits here.