Mr Allan Hendry v - Solicitor AKP Scotland Limited — 2019

At this preliminary hearing on 7 January 2019, the tribunal considered two issues: whether Mr Allan Hendry was a disabled person for the purposes of the Equality Act 2010, and whether certain correspondence exchanged between the parties in February and March 2018 was protected by without prejudice privilege. The respondents accepted that Mr Hendry had unstable angina and that it was a physical impairment with long-term effects, but they disputed that it had a substantial adverse effect on normal day-to-day activities.

The tribunal heard evidence from Mr Hendry about the effects of his unstable angina, including attacks that left him unable to stand, walk, lift, or carry out physical activity until medication took effect. It found him to be a credible and reliable witness. Applying section 6 of the Equality Act 2010, Schedule 1 paragraphs 2 and 5, and the four-condition approach referred to in Goodwin v Patent Office, the tribunal held that the impairment was long term and that the adverse effect was substantial. It concluded that, at the relevant time ending on 23 March 2018 when he resigned, Mr Hendry was a disabled person within the meaning of the Act.

The tribunal therefore held that Mr Hendry's complaint of unlawful disability discrimination could proceed to a full merits hearing. It also decided that, apart from the emails of 23 and 28 March 2018 relating to Mr Hendry's resignation, the correspondence at pages 116 to 132 of the bundle was subject to the without prejudice rule and inadmissible at any further hearing. In reaching that conclusion, it referred to Oceanbulk Shipping and Trading SA v TMT Asia Ltd and McWilliams v Russell.