Mr D Verdin v M & S Transport HELD AT: Manchester (by CVP) — 2023

This was a reserved judgment on a preliminary hearing held on 21 March 2023 to determine whether the claimant was, at the relevant time (August 2018 to February 2022), a disabled person as defined. The claimant relied on two impairments: Emotional Unstable Personality Disorder (diagnosed 2011, with no medication taken since around 2014) and a spine and shoulder condition arising from a July 2019 road traffic accident. The Tribunal reviewed the medical records and the claimant's Impact Statement, which was not cross-examined.

The Tribunal accepted that both impairments could meet the 'long-term' element of the statutory definition but concluded, on the balance of probabilities, that neither had a substantial adverse effect on the claimant's ability to carry out normal day to day activities during the relevant period. The Tribunal placed particular weight on the claimant's own oral evidence that 'there is nothing I cannot do on a day to day basis', and on the fact that he had been able to perform the demanding role of a commercial driver throughout the relevant period. Accordingly, the claims of direct disability discrimination, discrimination arising from disability, failure to make reasonable adjustments and harassment were dismissed.

The respondent applied for costs under Rule 76 in respect of the adjournment on 1 December 2022, which had been caused by the claimant's failure to produce his medical records. The Tribunal found this conduct unreasonable and, having considered the claimant's means and the costs schedule, ordered the claimant to pay £1,250 in respect of counsel's fees (declining to include the solicitor's fees of £1,750, which it considered peripheral). The remaining complaints (including constructive unfair dismissal, victimisation, failure to provide written statement of employment particulars and unauthorised deduction from wages) were not determined and were listed for a further preliminary hearing on 13 June 2023.