ETZ 4(WR) IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) Judgment of the Employment Tribunal in Case No: 4105402/2023 Issued Following Open Preliminary Hearing Heard at Edinburgh on the Cloud Based Video Platform on nd and rd April 2024, with Continued Deliberation on April and th May 2024 Employment Judge J G d’Inverno Malgorzata Jurska v , Trade Union Representative ABM Facility Services UK Limited st and 1 other — 2024

This was an open preliminary hearing concerning whether the claimant, Malgorzata Jurska, was disabled for the purposes of section 6 of the Equality Act 2010 during the agreed material period of 20 April 2022 to 4 May 2023, and whether the respondents knew or ought reasonably to have known of any such disability. The claimant relied on Tennis Elbow with secondary shoulder impact. The tribunal recorded that she had a three-week medically certified absence in late August and early September 2022, with fit notes identifying Tennis Elbow and recommending reduced cleaning hours on return to work.

The tribunal found, however, that the claimant’s evidence about continuous substantial effects was not supported by the contemporaneous record. After a short period of light duties on return, she resumed strenuous cleaning work of around 8 to 12 hours per day and continued to do so up to dismissal. Her medical records between September 2022 and May 2023 did not record ongoing joint pain or the functional limitations described in her later impact statement, and the tribunal preferred those contemporaneous materials to her broader oral evidence. It held that the condition was a self-limiting episode of Tennis Elbow from which she had substantially recovered after a few weeks.

On that basis the tribunal concluded that the claimant had not proved that she had a physical impairment with a substantial and long-term adverse effect on normal day to day activities at the material time. It also found that the matters relied upon to show knowledge, including the fit notes, a wrist bandage, incidental references to Tennis Elbow, and a Bowen Therapy letter, fell short of putting either respondent on notice of a disability. The complaints of discrimination because of disability were therefore dismissed for want of jurisdiction. No remedy was awarded.