E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4111083/2019 (V)5 Held by video on 9, 10, and November 2020 Employment Judge: W A Meiklejohn Ms S Wood v Ltd (In Liquidation) — 2020

This was a preliminary hearing to decide whether the claimant was disabled at the relevant time and, if so, whether the respondent knew or ought reasonably to have known that she had the disability for the purposes of section 15(2) Equality Act 2010. The underlying claims of unfair dismissal, breach of contract and disability discrimination were noted in the procedural history, but their merits were not decided.

The Tribunal found that the claimant had fibromyalgia which amounted to a physical impairment. It accepted that the condition had a substantial adverse effect on her ability to carry out normal day-to-day activities, including through pain, stiffness, fatigue, muscle weakness, communication and concentration difficulties, and that the effect was long-term. The Tribunal assessed the effect on the claimant on the basis of the position but for medication.

On knowledge, the Tribunal found that the respondent knew the claimant had fibromyalgia but had shown that it did not actually know she had a disability. However, after the claimant's August 2018 absence certified as due to fibromyalgia, and given the respondent's awareness of the nature of her nursing role, it would have been reasonable to seek a GP report or occupational health referral. The Tribunal found that if reasonable enquiries had been made, the respondent would have known about the claimant's disability, so it had constructive knowledge.