EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4108378/2022 (V) Held at Aberdeen on July 2023 Employment Judge J M Hendry Mrs H Eke v Represented byMr M Gachuba, Solicitor Sport Aberdeen — 2023

The claimant brought claims pleaded principally as disability discrimination. The tribunal dealt first with disability status and the parties agreed that the strike-out application would await that decision. The respondent accepted that the claimant had physical impairments lasting more than a year, but disputed that those impairments had had a substantial adverse effect for the necessary period. The claimant relied on fibroid-related incontinence and associated symptoms as the substantial adverse effect.

The tribunal directed itself by reference to s.6 Equality Act 2010 and the Schedule 1 definition of long-term effects. It identified the relevant question as whether the claimant had shown a physical impairment with a substantial and long-term adverse effect on normal day-to-day activities. The tribunal treated the relevant disadvantage as incontinence associated with the fibroid condition, rather than the hernia, and noted that the claimant had also referred to pain, though that was not shown to have had a significant adverse impact on its own.

Having considered the pleadings, GP notes, a consultant gynaecologist's report, and the claimant's oral evidence, the tribunal found that the contemporaneous medical records did not support an earlier onset of serious bladder or incontinence symptoms. It noted an August 2020 entry stating that bowel and bladder were okay, no mention of bladder or incontinence difficulties throughout 2021, the first GP reference to urinary incontinence on 27 January 2022, and the note of 18 May 2022 recording that she was struggling at work and needed to pass urine every 10 minutes. It did not accept attempts to push the onset back to 2020 or late 2021.

The tribunal accepted that the claimant had ill health and some discomfort, but did not accept her evidence on the crucial point that she had experienced a qualifying substantial adverse effect for at least 12 months. It therefore held that she had failed to demonstrate that she was a disabled person and dismissed the disability discrimination claims. The judgment did not award any remedy.