Employment Tribunal Rejects Disability Discrimination Complaint

OUTCOME: Dismissed

[NAME_1]: 3314431/2022

1

EMPLOYMENT TRIBUNALS

Claimant

Respondent

[NAME_2] v [NAME_3] of the [COMPANY_3] HEARING

Heard at: Reading Employment Tribunal (by CVP)

On: 11 March 2024 Before: Employment Judge George

Appearances For the Claimant: [redacted]

For the Respondent: [redacted]

JUDGMENT

1. The claimant was not disabled within the meaning of s.6 Equality Act 2010 at the period of time relevant for the claim, which is April to September 2022. 2. The complaint of disability discrimination is therefore dismissed.

REASONS 1. Following a period of conciliation which lasted between 28 October 2022 and 31 October 2022, [NAME_2] presented a claim on 30 November of that year. It was defended by a response that was entered in time on 4 January 2023.

2. The dispute arises out of [NAME_2]’ employment by the respondent university as a Full Stack Web Designer and that lasted from either 1 March 2018 (as the claimant claims) or 25 February 2019 (as the respondent alleges) to 31 July 2022 on a series of fixed term contracts.

[NAME_1]: 3314431/2022

2 3. As initially presented, the claim included complaints of disability discrimination and unfair dismissal. A complaint of disability discrimination by association that was raised on the face of claim form was dismissed on withdrawal on 13 September 2022.

4. The [NAME_1] has been previously [NAME_1] managed, including by myself, as set out in the records of the respective hearings. Today’s hearing was first scheduled to take place on 30 November 2023 by Employment Judge King who directed that a judge would determine at a preliminary hearing in public whether the claimant was disabled within the meaning of s.6 Equality Act 2010 (hereafter the EQA) at the relevant time by virtue of his asthma, aggravated by hay fever.

5. The claimant apparently had some difficulty in obtaining all of the relevant medical evidence he wanted to rely on (see page 58 of the hearing file). The November hearing was first postponed to 24 January 2024 and I set out in my order from that hearing the explanation for my decision to convert that hearing to a preliminary hearing in private at which the claim was listed for final hearing. I explained at that hearing that if the claimant continued to have difficulty obtaining records from his GP, he could write to apply for an order for them to disclose them.

6. Subsequently, the claimant disclosed a complete set of his medical records, with passages that do not relate to the impairment under consideration redacted, and also a letter from his GP dated 18 January 2024 (page 71 & 72).

7. On 31 January 2024 the claimant wrote to the tribunal to say that the summary of his medical records was missing relevant consultations from 2017 when he was treated by a different GP surgery and also that the report did not include a medical opinion on his symptoms and impact statement which he had understood his GP to have originally agreed to. He explained that the surgery was now unwilling to amend the report to provide it. He applied for an order that the report (the letter at page 71) be amended.

8. This was referred to me but my directed response was, regrettably, not sent by the tribunal to the parties. I explained at the start of the hearing that I had intended that it should be explained that while the tribunal could direct a third party to attend to be a witness or to produce documents, we did not have the power to order them to amend the contents of a particular document and also that the most relevant evidence would be the claimant’s personal account of the impact on his ability to carry out day to day activities which was found in the impact statement and his oral evidence. My intention was that the claimant should be asked whether he wanted an order that his doctor attend the hearing.

9. The claimant stated at the hearing on 11 March 2024 that, given that explanation, he was content to proceed with the hearing on the basis of the evidence available.

[NAME_1]: 3314431/2022

3 10. The relevant time for the claim is the period April 2022 to September 2022. The facts set out in box 8 of the claim form complain about the claimant’s unsuccessful applications for two roles: the first interview took place in April 2022 and the second interview was in September 2022 after his final contract had come to an end.

11. I have had the benefit of a hearing file that runs to 94 pages and [NAME_4] has prepared some written submissions that [NAME_2] took the opportunity to read at the start of the hearing while I was doing some prereading. Law Applicable to the Issue 12. Relevant sections of the EQA are the statutory definition in s.6, and the additional factors set out in paras:1, 2 and 5 of Schedule 1 EQA. They provide, so far as material, as follows: “6 Disability (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.” and Sch.1 paras.1, 2 and 5 provides as follows: “1 Impairment Regulations may make provision for a condition of a prescribed description to be, or not to be, an impairment. 2 Long-term effects (1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. (3) For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed. (4) Regulations may prescribe circumstances in which, despite sub-paragraph (1), an effect is to be treated as being, or as not being, long-term. 5 Effect of medical treatment (1) An impairment is to be treated as having a substantial adverse effect on the ability of the

[NAME_1]: 3314431/2022

4 person concerned to carry out normal day-to-day activities if— (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect. (2) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid. (3) Sub-paragraph (1) does not apply— (a) in relation to the impairment of a person’s sight, to the extent that the impairment is, in the person’s [NAME_1], correctable by spectacles or contact lenses or in such other ways as may be prescribed; (b) in relation to such other impairments as may be prescribed, in such circumstances as are prescribed.” 13. A person has a disability, for the purposes of the EQA, if they have a mental or physical impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. Substantial in this context means more than trivial: s.212(1) EqA and Goodwin v The Patent Office [1991] I.R.L.R. 540. There is no sliding scale, the effect is either classified as “trivial” or “insubstantial” or not and if it is not trivial then it is substantial: Hutchinson 3G UK Ltd v Edwards UKEAT/0467/13. As it says in paragraph B1 of the Guidance on the definition of disability (2011) (hereafter referred to as the 2011 Guidance), this requirement reflects the general understanding that disability is a limitation going beyond the normal differences which exist among people.

14. When considering whether the adverse effects on the claimant’s ability to carry out day-to-day activities are substantial the following factors are taken into account (see the 2011 Guidance Section B), a. The time taken to carry out an activity, b. The way in which an activity is carried out, c. The cumulative effects of an impairment (see paragraphs B6 and C2 of the Guidance), d. How far a person can reasonably be expected to modify his or her behaviour by the use of a coping or avoidance strategy to prevent or reduce the effects of the impairment, e. The effects of treatment f. There may be indirect effects, such as that carrying out certain day-to-day activities causes pain or fatigue (See 2011 Guidance paragraph D22).

15. In the present [NAME_1], the Equality Act 2010 Disability Regulations 2010 (hereafter the 2010 Disability Regulations) are also relevant. Regulation 4 sets out particular conditions that are deemed not to be impairments; this

[NAME_1]: 3314431/2022

5 gave effect to the Sch.1 para.1 EQA power given to the Secretary of State to designate particular conditions as not to be covered by the EQA. So far as material, reg.4 provides: “4.— Other conditions not to be treated as impairments (1) For the purposes of the Act the following conditions are to be treated as not amounting to impairments:— (a) a tendency to set fires, (b) a tendency to steal, (c) a tendency to physical or sexual abuse of other persons, (d) exhibitionism, and (e) voyeurism. (2) Subject to paragraph (3) below, for the purposes of the Act the condition known as seasonal allergic rhinitis shall be treated as not amounting to an impairment. (3) Paragraph (2) above shall not prevent that condition from being taken into account for the purposes of the Act where it aggravates the effect of any other condition.” 16. Thus, under reg.4(2), it is specified that the condition known as Seasonal Allergic Rhinitis should be treated as not amounting to an impairment for the purposes of the definition. However, the effect of reg.4(3) is that a claimant may rely on Seasonal Allergic Rhinitis for the purposes of the EQA where it aggravates the effect of any other condition, hence the way that [NAME_2]’ asthma has been described in the issue that I have to decide.

17. The way that the claimant has set out his evidence in his witness statement makes his argument that the treatment that he has received for hay fever has significantly reduced the symptoms that he experiences of hay fever. That is particularly the [NAME_1] in paragraphs 29 & 30 of his statement (page 92) where he states that his hay fever was largely uncontrolled until 2021 and treatment prescribed in May of that year has led to a significant reduction of symptoms. The question arises as to whether reg.4(3) permits the aggravating effect that an individual’s hay fever would have on any other condition, were that hay fever untreated to be considered. Alternatively, does reg.4(3) provide only that the actual aggravating effects of an individual’s hay fever on any other condition (and not the deduced aggravating effects) should be taken into account 18. In the present [NAME_1], [NAME_2] argues that all medical treatment should be ignored and that when deciding what the adverse effects of asthma are on his ability to carry out day to day activities and whether or not those were substantial, I should take account under reg.4(3) of the aggravating effects that untreated hay fever would have on his asthma.

19. The respondents argue that to do so would be contrary to the reading of Sch.1, paragraphs 1 and 5. I have not been referred to any decision of

[NAME_1]: 3314431/2022

6 the EAT or a higher court on this point and the research I was able to do in the time available did not reveal any relevant authority.

20. In my view, the use of the term “condition” in reg.4(1) and (2) of the 2010 Disability Regulations contrasts with the word “impairment” (both in reg.4(2) and in Sch.1 para.5 EQA in the sense that it is stated that the condition of hay fever cannot be an impairment for the purposes of the Act but it can be taken into account if it aggravates the effects of any other condition. Sch. 1 EQA deals with additional matters for determination of disability. I repeat para.5 which deals with the effect of medical treatment and says that: “5 (1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect.” Measures include medical treatment, such as medication.

21. Sch.1 para.5 refers to disregarding measures which “are being taken to treat or correct it” (my emphasis) and “it” refers back to “An impairment”. By reg.4(2) 2010 Disability Regulations, hay fever cannot be an impairment but is referred to as a condition. There is a certain logic in this: hay fever has been decided by parliament to be a condition which is not itself capable of being a disability so it is not unfair if it is only the actual aggravating effects of the condition (which may be well controlled for much of the season) which should be taken into account.

22. Taking the facts of the present [NAME_1] up against the wording of paragraph 5, the question I need to ask myself is whether the measures to treat hay fever are being taken additionally to treat or correct asthma. If there is evidence of that then the measures would fall within Sch.1, para.5(1)(a) EQA. If it is not, then I can still consider the hay fever if its actual effects (when subject to treatment) aggravates asthma. The question is what evidence is there of the effect of asthma on [NAME_2]’ ability to carry out day to day activities, taken in conjunction with hay fever, as that actually affects him without disregarding measures only taken to treat hay fever.

23. In this [NAME_1] I have also had to consider the question of coping strategies. As I mention above, the 2011 Guidance is helpful in a number of respects. In the present [NAME_1] I particularly note its guidance on the effects of behaviour in [NAME_5] to B10 and the effects of environment in B11. 23.1 Para. [NAME_5] counsels that account should be taken of how far a person can reasonably be expected to modify his or her behaviour by use of a coping or avoidance strategy. In some cases the coping or avoidance strategy might mean there was no substantial adverse effect; in others there might still be.

[NAME_1]: 3314431/2022

7 23.2 However, it would not be reasonable to expect a person to give up or modify normal activities that might exacerbate the symptoms: the example being given in para.[NAME_5] of shopping or using public transport.

24. In the present [NAME_1], the claimant argues that he does not go out and that that is something which should be taken into account when. I need to consider whether this is a coping strategy taken to prevent or reduce the effects of asthma on his ability to carry out day to day activities. I have to engage with the question of why the claimant avoided going out to the extent that I am satisfied that he did in the relevant period. Findings of Fact and Conclusion on the Issue 25. It is accepted that the claimant has the impairment of asthma. What, if any, adverse impact is there on his ability to carry out day-to-day activities? Is that more than trivial? I remind myself that that is a bifurcated test in the sense that if it is more than trivial then it is substantial.

26. The day-to-day activities that the claimant argues are affected are: 26.1 sleeping difficulties (see in particular his disability statement at paragraph 32); 26.2 the asthma attacks themselves; 26.3 he states that he has avoided physical exertion, and 26.4 he states that he avoids going outside during the grass pollen season.

27. What then is the evidence of the sleep difficulties that the claimant says that he has experienced? I had a disability impact statement (page 91) from the claimant. There is also a response given by the claimant to earlier questions asked by the tribunal in a four-page document. Unfortunately, that is split up in several places in the hearing file. The claimant confirmed that all of the pages of it are present at pages 83, 82, 89 and 90.

28. In paragraphs 14 to 18 of the impact statement the claimant describes the impact on him of hay fever and he says in paragraph 17 that forgetting to use his hay fever medication can disturb his sleep two to three times each summer. That is an effect that is connected with hay fever which is only relevant to the extent that it contributes to the impact of asthma.

29. The claimant does give evidence about the knock-on effect of asthma- related sleep deprivation on other abilities such as concentration. He states that he experiences reduced capacity to breathe and therefore oxygen deprivation. However, the medical evidence on this point is extremely limited.

30. There is a GP letter (page 71) which summarises the relevant extracts from the medical records which are also themselves in the hearing file. It states that [NAME_2] was noted to have nocturnal asthma and the report of difficulty sleeping from 15 June 2023 states this had been the [NAME_1] for “a

[NAME_1]: 3314431/2022

8 few years” but better over the five months before the consultation. Given the difficulties that the clamant experienced in obtaining medical evidence I was careful to ensure that the claimant had himself redacted the documents that are in the hearing file and had included those which were relevant to sleep deprivation, hay fever and asthma. He confirmed that to be the [NAME_1]. The references to sleep deprivation are scant. Furthermore, they date from before the relevant period of time and there is nothing in them to suggest that sleep deprivation was concluded to be asthma-related, certainly not during the period that I am concerned with. Medical evidence that asthma-related sleep interference happens sufficiently frequently to say that it was a significant interference with the claimant’s ability to carry out day to day life is simply not there. There is the claimant’s statement alone.

31. I next analyse the medical and other evidence about the asthma attacks themselves. The claimant was diagnosed with asthma in 2001; he gave oral evidence (which I accept) that he was prescribed a Soprobec preventer inhaler in about 2005 but he candidly accepted that he had not been prescribed another such until August 2023. The next inhaler that was prescribed was in January 2020 and he described nocturnal shortness of breath symptoms in his GP consultation at that point. That does provide some supporting evidence that this was a complaint he made. However, the Salbutamol inhaler that he was prescribed on that occasion lasted until another was prescribed in June 2023, a period of some three and a half years. The claimant accepted that this was infrequently used and that is illustrated by the calculations performed by [NAME_4], which he also accepted. Had that single pump been used to dispense the maximum dose prescribed, it would have been used within 25 days. Conversely, averaging the dose out over the period January 2020 to June 2023 works out as about once a week.

32. The medical evidence certainly does not show a history of regular consultations setting out ongoing unresolved problems caused by asthma with the claimant pressing for a change in treatment over the period between Janaury 2020 and June 2023. There are isolated visits, a reference to chest infection, and no direct mention of consultations about asthma during the relevant period in the GP’s letter (page 71). The medical evidence does not reveal regular use of measures to treat asthma which need to be disregarded.

33. The primary evidence of the frequency of the asthma related episodes comes from the claimant’s witness statement. He describes (his paragraph 19) having one or two minor episodes per year which he links to hay fever. In his closing argument he amplified that to refer to that meaning low level breathing problems which risk leading to inflammation which had to be managed.

34. In paragraph 26 he says that he had typically experienced three to five asthma attacks each year which he described in closing as meaning that he felt faint, he had to sit down, carry out breathing exercises and kept his inhaler to hand for those occasions.

[NAME_1]: 3314431/2022

9 35. Although the claimant in oral evidence highlighted the potential for long-term damage in relation to asthma, this is something that might happen in some cases. He does not argue that his is a progressive condition or that it was a progressive condition at the relevant period. He does argue that the cumulative effect of shortness of breath and lack of sleep had an impact on his ability to carry out day-to-day activities on those days when he was affected. But I need to focus realistically on how often that happened in the relevant period and whether that level of impact that can be said to be a significant adverse effect in the sense of more than trivial.

36. I also note the final paragraph in answer to question 2.2 on page 83 where [NAME_2] discusses the effect on his hay fever of the environment and the acute symptoms of hay fever. He says that acute hay fever symptoms occurred on five to ten days throughout the summer of 2022 and then states that he may “experience acute inflammation leading to breathing difficulties which leaves me unable to perform any task” . This is said to have occurred on two to three days in the summer of 2022 and required the use of his inhaler. That is a slightly lower figure than the figure given for the asthma attacks in his paragraph 26. Much of the rest of the recent statement was, in fact, when analysed, discussing the period post 2023.

37. Taking that all as a whole, what I find is that on a few days in each year prior to 2023, the claimant experienced some adverse effects on his ability to carry out day-to-day activities allied to either asthma attacks themselves or breathing difficulties caused by the combination of hay fever and asthma attacks.

38. I turn next to the impact on the claimant’s life of the coping strategies that he adopts. He states that he now avoids going outside from May to September. The respondent’s submissions in response to this are set out in paragraph 24 of [NAME_4]’s skeleton argument where it is emphasised that the claimant was receiving treatment for hay fever rather than for asthma, and argued that he attended the interview in September 2022 in person.

39. I accept that the regular treatment that the claimant was undergoing was directed towards hay fever and there is no evidence that it was prescribed to reduce the impact on him of asthma. Therefore, it is not something that should be ignored in accordance with Sch.1 para.5 EQA. But, in any event, the claimant’s explanation for his avoidance strategies focussed overwhelmingly on the misery he experiences as someone living with hay fever if he did not follow those avoidance strategies.

40. There is an element in his evidence of protective steps taken to reduce the risk of shortness of breath and other aspects of asthma in that period. It does appear to be the [NAME_1] that [NAME_2] has unfortunately experienced much more severe symptoms of asthma since the middle of 2023. However, in the relevant period the protective steps were not taken to anything other than a minor extent to avoid the effect of asthma. As an effect of the impairment relied upon, it is fair to describe the impact on Mr

[NAME_1]: 3314431/2022

10 [NAME_2] day-to-day life of steps taken to avoid the effect of asthma as trivial.

41. The final day-to-day activity that [NAME_2] refers to is the effect of physical exertion. He accepted that the evidence that he relied on in fact post-dated the exacerbation of his condition in 2023. That is the point at which there was a greater effect on his ability to walk briskly to the train station for example. The evidence is not relevant to the question I have to decide.

42. My finding is that it is not until June 2023 that asthma had a significant adverse effect on [NAME_2]’ ability to carry out day-to-day activities even when taking into account what is known about the impact of hay fever at that time on that impairment. For that reason I have concluded that he did not meet the definition of disability during the relevant period.

_____________________________

Employment Judge George

Date Signed: 14 April 2024

Sent to the parties on: 17/04/2024

For the Tribunal Office

Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice- directions/

[NAME_1] No: 3314431/2022 11.10 Judgment on reconsideration of judgment – hearing - rules 70 and 73

EMPLOYMENT TRIBUNALS

Claimant: [redacted] Respondent: [redacted]

Heard at: Reading Employment Tribunal (by CVP) On:

2 August 2024

Before: Employment Judge George

Representation Claimant:

[redacted] Respondent:

[redacted]

UPON APPLICATION made by letter dated 1 May 2024 to reconsider the judgment dated 14 April 2024 under rule 71 of the Employment Tribunals Rules of Procedure 2013

JUDGMENT

The claimant’s application for reconsideration of the judgment sent to the parties on 17 April 2024 is refused.

REASONS

1. On 31 July 2024 the claimant wrote to the tribunal and the respondent as follows

“I have been suffering from exhaustion symptoms throughout July and have had breathing difficulties this past week starting on the 23rd and persisting due to the humid weather. As a result I have been unable to prepare my evidence in time for the hearing and will not be able to attend safely on the 2nd. The tribunal is yet to respond about previous requests for variances and I do not believe I will be able to prepare adequately in time for the final hearing in September at present. I also remain concerned that the appeals process will continue in higher courts and any hearing held in advance of the exhaustion of appeals will be ineffective, potentially requiring witnesses to be called twice etc.”

2. When the claimant did not attend at the start of the hearing I caused the clerk to send an email on behalf of the tribunal asking whether it was his intention to be present and whether he had any particular application. The tribunal has not been

[NAME_1] No: 3314431/2022 11.10 Judgment on reconsideration of judgment – hearing - rules 70 and 73 provided with a telephone number on which to call him. The hearing start time was put back to allow for a response. No response was received. [NAME_6] confirmed that the respondent had heard nothing more from the claimant than the above email and also did not have a means of contacting him by telephone.

3. Rule 47 of the Employment Tribunal’s Rules of Procedure 2013 provides that

“If a party fails to attend or to be represented at the hearing, the Tribunal may dismiss the claim will proceed with the hearing in the absence of that party. Before doing so, it shall consider any information which is available to it, after any enquiries that may be practicable, about the reasons for the party’s absence.”

4. The claimant has asthma. My findings on the preliminary issue as to disability included that the impact on him of asthma has increased since mid-2023. I reminded myself about the content of his GP letter (PH file page 71) which sets out three occasions when the claimant had occasion to contact his surgery for a consultation or review about asthma between June and September 2023. I also reminded myself about an exchange from the preliminary hearing on 24 January 2024; I read out the relevant passage from my notes to [NAME_6] (who was not then representing the respondent) On that occasion alternative dates for the final hearing had been canvassed and the claimant had expressed a preference for September 2024 dates. He had explained that in very hot weather he may be overwhelmed by his symptoms. The prospect of the claimant being affected by weather had been flagged on that occasion. Nevertheless, the claimant has not provided medical evidence to support his apparent position that he is unable to represent himself at today’s video hearing.

5. Although the claimant did not expressly apply for a postponement of today’s reconsideration hearing, the options available to me appeared to be to proceed with the hearing, to postpone to another hearing or to postpone for the reconsideration to be dealt with on the papers. The claimant had originally expressed a view that ground 1 to 4 could be dealt with on the papers. The respondent argued that I should proceed in his absence.

6. Rule 30A(2) Rules of Procedure 2013, so far as relevant for present purposes, provides that where an application for a postponement is made less than seven days before the date on which the hearing begins, the tribunal may only order postponement where all of the parties consent and there are exceptional circumstances. I therefore need to consider whether there are exceptional circumstances which mean it is in the interest of justice that the reconsideration hearing should not continue today.

7. I decided to proceed with the hearing in the claimant’s absence. If, which was not clear, the claimant was applying to postpone the hearing on the basis of his health and that was the meaning of his statement that it was not safe for him to appear today, he has not sufficiently explained how that is linked to a medical condition of his. His assertion has not been evidenced by any supporting medical evidence. Even though on an earlier occasion the claimant indicated that he could become overwhelmed by particularly hot weather, his present explanation that he has breathing difficulties does not in my view adequately explain why he is unable to attend a short hearing which is taking place by video when he is not required to leave his place of residence. The available medical evidence confirms that he has asthma but does not provide supporting medical evidence for a conclusion that he is unable to participate safely in a video hearing in the present hot weather.

8. Furthermore, the claimant appears to put as much emphasis on his stated inability to acquire the supplementary evidence as he does to risk to his health. He puts that inability down to exhaustion experienced through July 2024. I do not consider

[NAME_1] No: 3314431/2022 11.10 Judgment on reconsideration of judgment – hearing - rules 70 and 73 his explanation to provide a satisfactory reason for any lack of preparedness for today’s hearing. The notice of hearing was sent to the parties on 19 June 2024. Mindful of Ground 5 of the application, I directed that the hearing should reconsider the judgment on the preliminary issue and consider any application by him to adduce further evidence. If the reconsideration application was successful, my intention (see para.3 on RH file page 102 of the Reconsideration Bundle) was that the issue of disability should be considered at the final hearing and therefore any application to adduce further evidence needed to be considered before that hearing. The claimant was informed of the way in which any application further evidence would be decided. Nothing further has been heard from him about such an application or what that evidence might be. Correspondence from before the March 2024 hearing suggests that the claimant said his medical records were incomplete – but that those missing dated from before the relevant period – and he has referred to seeking other medical opinion but, beyond that, there has been no explanation of what the significance of the proposed additional evidence might be.

9. Since the claimant has known what was expected since 19 June 2024, and has been apparently preparing to submit further evidence since the oral judgment on 11 March 2024, his explanation for difficulties in July (by his email of 31 July 2024) does not address the whole of the period that he has had available to obtain such evidence.

10. I also need to consider the overriding objective: the potential effects of delay and the impact on the proceedings as a whole. The claimant has referred to his outstanding appeal to the EAT. He questions whether the final hearing - presently scheduled for 17 and 18 September 2024 - can proceed in those circumstances. He has not made an application to postpone that hearing on the grounds of an extant appeal and I do not pre-judge such an application. However it is unlikely that the simple fact of such an outstanding appeal would, without more, be considered a sufficient basis to postpone the final hearing.

11. It is argued on behalf of the respondent that if this reconsideration application is not dealt with today there is a risk that the final hearing will be put in jeopardy. I have not canvassed alternative dates for a relisted reconsideration hearing. More realistically, it is the preparation for that hearing which would be adversely affected because the parties need clarity about the issues that are to be decided at it when preparing witness statements. Potentially that could disrupt the hearing itself.

12. The risk to the final hearing, and the lack of sufficient explanation for the claimant’s absence are the reasons why I decline, on my own initiative, to postpone this reconsideration hearing but to proceed in [NAME_2]’ absence. Postponing the hearing to be dealt with on the papers would only have been logically in the interests of justice had been with the intention of inviting further submissions from the claimant and that would itself have incurred delay. The claimant has had the respondent’s skeleton argument in advance of the hearing as well as the documents to be relied upon. It was only two days before the hearing itself that he raised, for the first time, the challenges which on his account he has been experiencing since the beginning of July. He could then have taken the opportunity to put something in writing had he wished to do so. He did not, and did not expressly ask for a postponement.

13. I heard short submissions from [NAME_6] and then took time to make my decision. I had available to me the original hearing file (PH file pages 1 to 94) and a file of documents prepared for the reconsideration hearing that runs to 109 pages (RH file pages 1 to 109). As I have indicated, counsel had prepared a skeleton argument which I had read in advance.

[NAME_1] No: 3314431/2022 11.10 Judgment on reconsideration of judgment – hearing - rules 70 and 73 14. The procedure for an application for a reconsideration is set out in rule 72 Rules of Procedure 2013. It is a two stage process. If the employment judge who made the judgement considers that there is no reasonable prospect of the original decision being varied or revoked the application shall be refused under rule 72(1). Otherwise the original decision shall be reconsidered.

15. The power to reconsider a judgement under rule 70 can only be used if it is necessary to do so in the interests of justice. That is apparent from the wording of the rule itself and, as it was held, by HH Judge Shanks in Ebury Partners UK Limited v Acton Davies [2023] IRLR 486 EAT a central aspect of the interests of justice is that there should be finality in litigation.

“It is therefore unusual for a litigant to be allowed a ‘second bite of the cherry’ and the jurisdiction to reconsider should be exercised with caution. In general, while it may be appropriate to reconsider a decision where there has been some procedural mishap such that a party has been denied a fair and proper opportunity to present his [NAME_1], the jurisdiction should not be invoked to correct a supposed error made by the ET after the parties have had a fair opportunity to present their cases on the relevant issue. This is particularly the [NAME_1] where the error alleged is one of law which is more appropriately corrected by the EAT.” (Para 24 of the judgement of HHJ Shanks).

16. When I considered the application for reconsideration under rule 72(1), my view as that there were better than no reasonable prospects of the application succeeding on Grounds 2 and 5. That led to the provisional view I expressed at RH file page 95. However I have, in today’s hearing, considered all five of the grounds relied on by the claimant.

17. Ground 1. In this ground, the claimant takes issue with my conclusion expressed in the judgement of paragraphs 20 to 22 (RH file page 88) about the correct interpretation of Sch.1 paragraph 5 Equality Act 2010. That is an allegation that my interpretation is wrong in law and a prime example of a challenge to a judgement which should only be brought by an appeal to the EAT. The argument that I misinterpreted a paragraph in the Equality Act 2010 is not one which should be revisited at the first instance.

18. I deal next with Ground 4 because, to some extent, that is linked with Ground 1. By that, the claimant argues that I failed to take account of fluctuating effects and the alleged fluctuating nature of his symptoms. This is an argument that a person should be regarded as disabled despite the impact on their day-to-day activities not yet being long-term, if there have been substantial adverse effects of an impairment and those effects are likely to recur. The argument is contrary to my findings that the adverse effects of asthma on the claimant’s ability to carry out day-to-day activities had not been substantial at the relevant time. There were four separate ways in which the claimant argued his day-to-day activities were impacted and I remind myself of paragraphs 30, 37, 38 to 40 and 41 of my judgement. A reconsideration application is not appropriate to challenge primary findings of fact with which a party disagrees where they have had a fair opportunity to argue their [NAME_1].

19. If it were the [NAME_1] that the effects of hayfever on asthma uncontrolled by medication should have been considered then, potentially, the conclusion would have been different. Merely reading through Ground 4 makes clear that it is predicated upon the claimant succeeding on Ground 1. Otherwise it is a criticism of primary findings of fact and not a challenge suitable for reconsideration.

[NAME_1] No: 3314431/2022 11.10 Judgment on reconsideration of judgment – hearing - rules 70 and 73 20. By Ground 3 the claimant argues that I failed to take account of relevant evidence. Arguably that is also a question that should be argued at the EAT, because it is an error of law to fail to do so. However, I also note that the evidence outlined dates from after the relevant period. It would, in fact, be wrong in law for me to have taken this into account. It would be an error of law to make a finding that something had happened later than the relevant period for the claim and use that as the basis of a finding from the viewpoint of the relevant period that exacerbation was likely to happen in the future. This ground does not provide a reasonable basis to impugn the judgement.

21. When considering the reconsideration application at the first stage, I was initially concerned by what was said in Ground 2; it appeared that I may have misunderstood an argument raised by the claimant. That could be viewed as a procedural failing or that he had not had a fair opportunity to argue his [NAME_1]. On reflection having considered the judgement as a whole, and the evidence in the witness statement taken with the oral evidence, I do not think that to be the [NAME_1].

22. The judgment was taken on the basis of my findings which I made taking into account all of the evidence I heard at the preliminary hearing including the cross examination.

23. When the respondent replied to the reconsideration application (RH file page 96), part of their objection to Ground 2 was based upon their note of evidence given by the claimant at the preliminary hearing on 11 March 2024 when cross-examined about paragraphs 11 to 13 of his witness statement. My note of that exchange, which I read into the record at the reconsideration hearing is as follows: Counsel’s question Claimant’s answer Describe in para.11 to 13 possibility of damage to your lungs - this is not something that has actually happened - theory as what could happened - you have not suffered My asthma nurses told me after my attacks in August that I had suffered temporary damage and I recovering which why they prescribed Soprabec but in para.12 the treatment reversed after I healed. The paras 11 to 13 relates to something that happened in August 2023. Yes. My asthma worsened in August 2023.

24. The relevance for present purposes of that evidence is, first, that it is clear that taking the witness statement and the oral evidence together the claimant’s position that his asthma was progressive related to something that happened after the relevant time period. Secondly, he gave evidence that although damage is cumulative if not adequately treated and controlled, in his [NAME_1] treatment after the August 2023 episode reversed the damage and he healed.

25. I accept the respondent’s argument that, properly understood, paragraph 11 of the claimant’s witness statement does not support a finding that asthma was progressive in the claimant’s [NAME_1]. By that I mean a finding that, whilst at the relevant time it did not have a substantial adverse effect, it was likely to do so in the future. I remind myself of the contents of the Secretary of States Guidance on the Definition of Disability (2011) paragraph B19. As pointed out by [NAME_6] ([NAME_7] para.10(iii)) the [NAME_1] of [NAME_7] v University of Surrey [2022] IRLR 235, EAT) makes clear that the claimant has to show that, from the vantage point of the reference period, it is more likely than not that at some stage in the future he will have an impairment which will have a substantial adverse effect on his ability to carry out normal day-to-day activities.

26. The claimant’s evidence oral evidence at the March 2024 preliminary hearing was

[NAME_1] No: 3314431/2022 11.10 Judgment on reconsideration of judgment – hearing - rules 70 and 73 that, at a point outside the reference period, an asthma attack had caused temporary damage that was reversed by treatment. That is not inconsistent with my findings, in particular in paragraph 31 to 32.

27. I’m not therefore satisfied that I did in fact misunderstand the claimant’s evidence as a whole. I am not satisfied that there was any material unfairness to the claimant which means that it is in the interests of justice to reconsider the judgement taking into account the competing interest that there should be finality in litigation.

28. My concern on reading Ground 5 was that the claimant appeared to say that he had been disadvantaged by having insufficient time on the day of the preliminary hearing in public to react to the information I disclosed that the administration had not communicated my response to his email as I had intended.

29. Re-reading my notes of the hearing, which reflect the explanation I have recorded in the judgment, in fact I am satisfied that the claimant as a whole did have a fair opportunity to react to that information and to say if he felt disadvantaged by not having received the communication at the time originally intended. He was given time to read counsel’s note for the hearing – rather than time expressly to reflect on whether he wished to apply for a postponement to seek further evidence - it would still have given him that opportunity. There was no pressure of time to get started and an additional 15 minutes was also allocated when he asked for it.

30. He did have the opportunity to say if he felt disadvantaged at the time and made an election that he was not. It is not in the interests of justice that he should be able to change his mind now that the issue has been determined against him if he considers that his evidence was not in fact a strong as he had previously thought.

31. When considering this ground, I also give weight to the absence of any application for permission to adduce additional evidence. The claimant was alerted to this on 19 June 2024 and has made no such application. Nor has he set out what additional evidence may be available in the future. This means that if there was any disadvantage, it is a merely theoretical disadvantage. Since the notice of hearing was sent on 19 June 2024 claimant has had six weeks to get evidence if any is possible to obtain. Since the oral judgement in March 2024 he has had longer than that. Even taking into account his professed exhaustion in July, the passage of time is not fully explained.

32. It is not in the interests of justice to vary or revoke the judgement on the basis of a theoretical disadvantage in the absence of any explanation from the claimant as to what evidence may in future be forthcoming, why it is important and when there is insufficient explanation for its non-availability.

33. Following my decision on the reconsideration application, I made [NAME_1] management orders to enable the parties to prepare for the hearing on 17 & 18 September 2024 and those are in a separate document.

_____________________________

Employment Judge George

Dated: 3 August 2024

JUDGMENT SENT TO THE PARTIES ON

5 August 2024

FOR THE TRIBUNAL OFFICE

[NAME_1] No: 3314431/2022 11.10 Judgment on reconsideration of judgment – hearing - rules 70 and 73 Notes

Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment- tribunal-decisions shortly after a copy has been sent to the claimant(s) and respondent(s) in a [NAME_1].

Recording and Transcription

Please note that if a Tribunal hearing has been recorded you may request a transcript of the are recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here:

https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice- directions/

[NAME_1] No: 3314431/2022

1

EMPLOYMENT TRIBUNALS

Claimant:

[redacted]

Respondent: [redacted]

Reading Employment Tribunal

On: 20, 21, and 22 April 2026

Before:

Employment Judge Murdoch

Representation Claimant:

[redacted]

Respondent: [redacted]

JUDGMENT

The judgment of the Tribunal is that the complaint of unfair dismissal under Part X Employment Rights Act 1996 is not well-founded and is dismissed.

Approved by:

Employment Judge Murdoch

Date 22 April 2026

JUDGMENT SENT TO THE PARTIES ON

……….29 May 2026.........................................

............................................................................

FOR THE TRIBUNAL OFFICE

Note Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision.

Public access to employment tribunal decisions Judgments and reasons for the judgments are published, in full, online at www.gov.uk/employment- tribunal-decisions shortly after a copy has been sent to the Claimant(s) and respondent(s) in a [NAME_1].