Mrs J O’Dowd v Highlea Care Ltd — 2021

The claimant brought claims described in the ET1 as unfair constructive dismissal and disability discrimination arising out of her work as a support worker and her resignation on 14 May 2020. This reserved judgment determined only the preliminary issue of whether she was a disabled person within the meaning of section 6 Equality Act 2010 at the material times. The respondent disputed both disability and knowledge, but knowledge was not decided at this hearing.

The tribunal found that the claimant had a physical impairment affecting her left knee, including a longstanding anterior cruciate ligament tear and early osteoarthritis. It accepted that by mid-April 2019, after a drive to Eyemouth, she experienced significant pain and swelling, needed breaks while driving, later consulted her GP, and started taking ibuprofen and paracetamol. It also accepted that a later X-ray and medical reports showed early osteoarthritis, and that stair climbing in late 2019 increased pain and swelling.

On that evidence, the tribunal held that the impairment had a substantial adverse effect on normal day-to-day activities and was likely to last more than 12 months. It found that the claimant was disabled by mid-April 2019 without needing to rely on paragraph 8 of Schedule 1, although it also said that paragraph 8(2) would have applied in the alternative because the condition was likely to result in a substantial adverse effect as it progressed. The tribunal did not accept that she had proved disability from January 2019, and the substantive claims were listed to proceed to final hearing.