ETZ 4(WR) IN THE EMPLOYMENT TRIBUNAL (SCOTLAND) AT EDINBURGH Judgment of the Employment Tribunal in Case No: 8000461/2023 Issued Following Preliminary Hearing Held at Edinburgh, on the Cloud Based Video Platform, on th of February 2024, with Deliberation on st April 2024 Employment Judge J G d’Inverno Mr S Anderson v P.J. Carey (Contractors) Limited — 2024

The preliminary hearing was confined to whether the claimant had the protected characteristic of disability, said to arise from ADHD, on 18 August 2023, and whether the respondent should be allowed to amend its pleaded case. The tribunal accepted that the claimant had likely been diagnosed with ADHD in childhood, around 2007, but found no medical evidence expressly vouching a continuing diagnosis at the material time and no recent NHS consultation or prescribed ADHD medication between April 2011 and 18 August 2023.

The tribunal accepted that the claimant had used cannabis daily from age 16 and that, from April 2011 onwards, he self-medicated with non-prescribed cannabis before later obtaining a private prescription from Sapphire Medical from around July 2022. It held that self-medication and non-prescribed support from a friend were not 'measures' to be discounted under paragraph 5 of Schedule 1 to the Equality Act 2010, but that the evidence did not enable it to distinguish the effects of ADHD from the commonly reported effects of long-term cannabis use. It also noted that the claimant had been able to work long and demanding shifts over extended periods.

On that evidence, the tribunal was not satisfied that the claimant had proved that he had the protected characteristic of disability at the material time, or that any impairment had a substantial and long-term adverse effect on normal day-to-day activities. The discrimination complaints were therefore dismissed for want of jurisdiction. Had jurisdiction existed, the tribunal said it would have granted the respondent leave to amend under the Selkent principles, because the proposed amendment was a factual response to the claimant's cannabis disclosure, was relevant to remedy, and would not have caused prejudice.