Claimant v Aarsleff Ground Engineering Ltd — 2022

This was a preliminary hearing on continuity of service and disability status. The tribunal held that the claimant’s placement as a Civil Engineer ended on 14 September 2018, that he then returned to university, and that he did not re-join the respondent as a Graduate Design Engineer until 3 June 2019. It found that he was not an employee during the intervening period and that there was no arrangement within s.212 ERA 1996 preserving continuity. The retainer payments and the wording of the retainer agreement were treated as a poorly drafted sponsorship-style commercial arrangement, not as evidence of ongoing employment. The unfair dismissal claim was therefore dismissed because the claimant did not have the two years’ qualifying service required by s.108 ERA 1996.

On disability, the respondent conceded that the claimant had an impairment of ADHD and that it was likely to have lasted 12 months. The tribunal found that the claimant was diagnosed around 17 July 2020, but did not make a finding on the precise date because it was unnecessary for the issues before it. Applying s.6 EqA 2010, Schedule 1 and the EHRC Guidance, the tribunal accepted the claimant’s evidence that, without medication, he had difficulty retaining focus on complex or tedious tasks for as long as four hours and had difficulty maintaining focus when distracted by other tasks or deadlines.

The tribunal held that those effects were substantial and long-term, and that the claimant was a disabled person throughout the relevant period. It relied in part on the evidence of his performance in his graduate role, the medical evidence from Dr Ihezue, and the statutory guidance on concentration and distractibility. The tribunal did not decide the underlying disability discrimination claims under s.15 EqA or the reasonable adjustments complaint at this hearing; those issues were left to the final hearing.