Miss M Cunniff v Borough Council of Bolton — 2020

This was a preliminary hearing to decide whether Miss M Cunniff was a disabled person within section 6 of the Equality Act 2010 at the material time, October 2018 to early September 2019. By the time of the hearing, the respondent had accepted disability in relation to some conditions, and the claimant agreed that several other conditions no longer needed separate determination. The tribunal therefore only had to decide refractory vomiting, deep vein thrombosis in the left calf, and vitamin D and/or iron deficiency.

The tribunal found that refractory vomiting was a physical impairment and that it was long-term because it had existed since 2007. It accepted the claimant's evidence that, during flare-ups and even when she was constantly feeling sick rather than actually vomiting, the condition had a substantial adverse effect on normal day-to-day activities such as eating, drinking and speaking to other people. The tribunal also held that, because the condition had periods of remission but could recur, and because the claimant was taking medication to control it, the impairment satisfied the long-term and treatment/measure provisions in Schedule 1 to the Equality Act 2010.

By contrast, the tribunal held that the DVT did not amount to a disability at the relevant time. It accepted that the condition had a substantial adverse effect for a period after the August 2018 diagnosis, but found that this initial impact lasted at most about three months and was not long-term. It also found that the evidence did not show a likely recurrence or a likely substantial adverse effect if warfarin were stopped; the medical evidence referred to a 5-10% recurrence risk, which the tribunal said did not meet the statutory threshold of something that could well happen.

The tribunal also rejected the vitamin D and/or iron deficiency point. It said there was almost no evidence about that condition's specific impact, and the claimant's evidence did not distinguish any effect from the effects of her other serious medical conditions. On the evidence before it, the claimant had not proved that this was a distinct impairment with a substantial and long-term adverse effect on day-to-day activities. No remedy was awarded because the judgment determined disability status only.