Mr J Atherton v Vita Cellular Foams (UK) Limited — 2019

The tribunal heard a preliminary issue on whether Mr J Atherton was a disabled person within section 6 of the Equality Act 2010 at the time of his dismissal in August 2018. The respondent accepted that he had a physical impairment in the form of back problems, but disputed that it had a substantial and long-term adverse effect. The judgment records that the claimant’s employment ended on 10 August 2018 after sickness absence and that his pleaded Equality Act complaints arose from that dismissal.

Employment Judge Franey accepted that the claimant experienced severe restrictions during episodes of flare up, including problems with mobility and ordinary activities, and found those episodes amounted to a substantial adverse effect while they lasted. The judge also accepted that the claimant had back problems on earlier occasions in 2013, 2014, 2017 and 2018, and referred to the hospital and GP records, the occupational health report of 9 August 2018, and the claimant’s evidence about his symptoms.

The tribunal rejected the case that the claimant had a substantial adverse effect between flare ups. It found that his account of restrictions outside flare ups was not consistent with the physical demands of the machine operator role he had performed for years, and concluded that his choices to avoid certain activities at home were not shown to be required by his condition. The judge also relied on the occupational health evidence that he was fit for normal duties, with excellent mobility, when not in flare up.

On long-term effect, the tribunal found that the summer 2018 flare up had lasted about six weeks and had ended by the time he returned to work on 6 August 2018. It held that the claimant had not shown that the substantial adverse effect had lasted, or was likely to last, for 12 months. Applying the likelihood test from SCA Packaging v Boyle and the Schedule 1 guidance, the judge concluded that recurrence was not likely on the information available in August 2018, because the only substantial episodes were two impact injuries five years apart. All disability discrimination complaints were therefore dismissed, and the judgment records that the case would proceed as one of unfair dismissal alone.