In person For the v Mrs M Gyasi, lay representative — 2020

At the open preliminary hearing on 8 July 2020, the tribunal decided that Miss N Smith had a disability within the meaning of section 6 Equality Act 2010. It accepted that she had hallux valgus, or a bunion, on her right foot, and found that this adversely affected normal day-to-day activities including standing for long periods, climbing stairs, carrying heavy weights, and walking. The tribunal held that the adverse effect was more than minor or trivial and that it was long-term, noting that she had severe pain, underwent elective surgery at the end of August 2019 after waiting more than three years, and had been affected for over two years before the operation and beyond the end of employment on 14 October 2019.

The tribunal recorded that the claimant’s wider case appeared to concern disability discrimination and unpaid wages, and that she was alleging constructive dismissal arising from the respondent’s failure to pay statutory sick pay during her absence from 25 August 2019 to 14 October 2019. It said the facts potentially raised section 15 Equality Act 2010, but that such a claim depends on the employer knowing, or reasonably being expected to know, of the disability.

On the knowledge issue, the tribunal’s provisional view was that First Choice Bakers Limited did not know, and could not reasonably have been expected to know, that the claimant had a disability when it decided not to pay SSP. The claimant had not disclosed the bunion when applying for the job or during employment, she only said at the beginning of August 2019 that she was going to have a foot operation, and the respondent said it did not know that the surgery was for a bunion until the sick notes were provided in August and September 2019. The tribunal also noted that the SSP claim depended on whether average weekly earnings in the qualifying period were at least £118, while the respondent said they were £49.58, and it directed the respondent to provide further wage and holiday pay information before a judicial assessment hearing on 23 July 2020. No final merits decision was made on the discrimination, SSP, holiday pay, or constructive dismissal issues at this hearing.