Mr Scott McCartney v Verdant Leisure Ltd — 2021

This Open Preliminary Hearing was convened to decide whether Mr Scott McCartney had a qualifying disability for the purposes of his disability discrimination proceedings. The tribunal accepted that he had suffered from asthma since at least 2007, that the condition was acute at times, and that it had a substantial and long-term adverse effect on his ability to breathe and to carry out routine exercise. On that basis, it found that he was a disabled person within s 6 Equality Act 2010 by reason of asthma.

The tribunal also considered the wrist fracture sustained on 18 December 2019 and surgery the following day. It accepted that the injury occurred, but relying on the consultant orthopaedic surgeon's report and the evidence about the duration of symptoms, it was not satisfied that the wrist impairment had a long-term effect within Schedule 1 Equality Act 2010. It therefore did not find the wrist injury, on its own, to amount to a qualifying disability. Where the claimant's account conflicted with contemporaneous medical evidence, the tribunal preferred the latter.

No determination was made as to which specific statutory claims were being pursued, and no finding was made on employer knowledge. The tribunal accepted that the respondent had fair notice that the claimant relied on asthma and a residual wrist impairment, and it reserved both parties' strike-out applications and further procedure to a later case management hearing.