Mr G B Humphreys v Barwick Bathroom Distribution LLP Heard by CVP — 2022

This was a preliminary hearing to decide whether Mr Humphreys was a disabled person by reason of achalasia and, if not, whether the disability discrimination complaints should be struck out. The tribunal considered direct disability discrimination, disability-related harassment, failure to make reasonable adjustments, victimisation and unfair dismissal. Mr Humphreys relied on severe symptoms in January and February 2021, hospital treatment and surgery on 1 March 2021, and said the condition continued to affect eating, drinking, sleep and concentration.

The tribunal accepted that before surgery the claimant's achalasia caused a substantial adverse effect on swallowing, eating, drinking and sleep. It found, however, that the contemporaneous medical evidence showed a good post-operative recovery: he was discharged on 5 March 2021, progressed through a staged diet, his consultant recorded on 11 May 2021 that he was managing well with his diet and putting weight back on, and he did not report ongoing symptoms until 7 December 2021. The tribunal rejected his oral evidence that he could not eat or drink and was vomiting up to 30 times a day after surgery, finding it inconsistent with the records and with his own claim form and fit notes.

Applying section 6 Equality Act 2010 and the Schedule 1 long-term effects provisions, the tribunal held that the claimant had not proved a disability at the material time because the substantial effects had ceased after surgery and there was no reliable evidence that they were likely to recur by 18 May 2021. It therefore struck out the claims for direct disability discrimination, disability-related harassment and failure to make reasonable adjustments. The victimisation and unfair dismissal complaints were not struck out and no deposit order was made, but the tribunal noted that their prospects should be reviewed carefully at the final hearing. No monetary remedy was awarded at this stage.