Worker Found Disabled Due to Back Injury but Not Head Injury

OUTCOME: Allowed in Part

Case Number: 6015669/2024 1 EMPLOYMENT TRIBUNALS BETWEEN Claimant Respondent Mr [APPELLANT] AND [APPELLANT] OF THE EMPLOYMENT TRIBUNAL

HELD BY VIDEO (CVP) ON 15 April 2026 EMPLOYMENT JUDGE [NAME] For the Claimant: [redacted] For the Respondent: [redacted]

JUDGMENT The judgment of the tribunal is that the claimant was a disabled person by reason of a back injury with effect from 23 July 2024, but he was not a disabled person by reason of his head injury arising on the same date.

REASONS 1. This is the judgment following a preliminary hearing to determine whether the claimant was a disabled person at the material times.

2. This has been a remote hearing on the papers which has been consented to by the parties. The form of remote hearing was by Cloud Video Platform. A face-to-face hearing was not held because it was not practicable, and all issues could be determined in a remote hearing. The documents that I was referred to are in a bundle of 239 pages, with an additional email of six pages, the contents of which I have recorded.

3. I have heard from the claimant, who gave evidence having submitted a Disability Impact Statement. Mr [APPELLANT] questioned the claimant on his evidence, and he made submissions on behalf of the respondent.

4. There was a degree of conflict on the evidence. I found the following facts proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary, and after listening to the factual and legal submissions made by and on behalf of the respective parties.

5. The Facts:

6. The respondent company provides care for vulnerable clients, and the claimant was employed as a Senior Support Worker from 18 September 2023 until his dismissal which

Case Number: 6015669/2024 2 took effect on 18 September 2024. On 2 August 2023 whilst working for a [NAME] the claimant sustained a back injury at work. His GP notes record that he presented with a lower back injury and thoracic back pain. Various medical reports were requested, and the claimant was sufficiently unwell to be referred for [NAME]. A letter from his GP on 13 May 2024 confirmed that the claimant had suffered a back injury in August 2023 and that he had been referred for [NAME] and that had to take painkillers. The GP recommended that the claimant avoided manual handling and heavy lifting. It was clear that the claimant suffered from some sort of back condition and/or injury and weakness in his back with effect from that injury on 2 August 2023.

7. There was then a second incident which took place on 23 July 2024. The claimant suffered a head and back injury after he had slipped in the bathroom whilst looking after a client at work. He went to the accident and emergency department of [COMPANY] in Taunton. The discharge letter confirmed that he had suffered a minor head injury and that he had hurt his lower back. He was told to mobilise as much as possible and it was noted that he was happy with this plan and discharged home. He was prescribed an anti- inflammatory drug for seven days.

8. The claimant’s GP notes then record a succession of references to ongoing back issues. The client reported an incident to his GP on 14 August 2024, and he was referred to [NAME]. He was also upset about his position at work and provided with a leaflet relating to mental health information. He attended [NAME] in December 2024. He was referred to an exercise program in May 2025 and reported low back pain and stress on 23 May 2025. The claimant says that he was advised to obtain an occupational health report at that time which reported that he incurred a head injury in July 2024 which resulted in concussion and that this accident had affected his ongoing back pain and that the resulting medication created a mental fog. It also reported that he was suffering from work- related stress because of issues dealing with service users at that time. He also complained to his GP of numbness in his lower limbs in August 2025. His symptoms have clearly continued, because he has been referred for an MRI span scan on his spine this week (the appointment was for two days ago on 13 April 2026).

9. The claimant obtained a letter from his GP Dr [APPELLANT] dated 30 May 2025 for the purposes of this hearing. This letter records that an accident occurred on 23 July 2024 and that the claimant had reported to hospital. He was left with chronic back pain for which he needs to take regular prescribed painkillers. This included the opiate medication oxycodone. This made him feel drowsy and negatively impacted on his day-to-day living including his cognitive function. The claimant was unable to drive and was reliant on public transport and it reports that he suffered from dizziness and brain fog. This affected his social life because of the medication for his back pain. It was also clear that he had undertaken a course of [NAME] in November 2023 and August 2024 because of his mechanical back pain. The claimant has provided further information as to these effects in his disability Impact statement.

10. However, the evidence in connection with the claimant’s head injury is scant to say the least, if not non-existent. The claimant has suggested in his claim form that he suffered from a brain injury, but there is no evidence of the same, and there is only reference to a minor head injury at the time of the accident on 23 July 2024. It is true that the claimant was on painkillers and these appear to have had an effect on his normal day-to-day activities, but there is no suggestion that these have ever been prescribed because of a head injury. Other than reporting a “minor head injury” on 23 July 2024, and his being issued with a mental health information leaflet on 22 August 2024, there is no subsequent reference in the claimant’s GP notes to this head injury, or any symptoms arising, nor any treatment needed nor prescriptions authorised and issued as a result of it.

11. Having established the above facts, I now apply the law.

12. The Law:

13. The claimant alleges discrimination because of the claimant's disability under the provisions of the Equality Act 2010 (“the EqA”). The claimant complains that the respondent has contravened a provision of part 5 (work) of the EqA. The claimant alleges

Case Number: 6015669/2024 3 discrimination arising from a disability, and failure by the respondent to comply with its duty to make adjustments.

14. The protected characteristic relied upon is disability, as set out in section 6 and schedule 1 of the EqA. A [NAME] has a disability if he has a physical or mental impairment that has a substantial and long-term adverse effect on [NAME] ability to carry out normal day-to-day activities. A substantial adverse effect is one that is more than minor or trivial, and a long- term effect is one that has lasted or is likely to last for at least 12 months, or is likely to last the rest of the life of the person.

15. In addition, schedule 1(5) EqA provides that – (i) 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. (ii) “Measures” includes, in particular, medical treatment and the use of prostheses or other aid.

16. Under section 212(1) EqA “substantial” means more than minor or trivial.

17. The Secretary of State has published Guidance on Matters to be taken into Account in Determining Questions Relating to the Definition of Disability (2011) (“the Statutory Guidance”), which I have considered. Section B provides guidance on the meaning of “substantial adverse effect”. This repeats section 212(1) EqA and confirms that “substantial” means more than minor or trivial. In it also addresses factors such as the time taken to carry out an activity; the way in which an activity is carried out; and curative effects of an impairment. Section D provides guidance on the meaning of “normal day-to-day activities”. The EqA does not define what is to be regarded as a “normal day-to-day activity”, but in general the Statutory Guidance states that it includes things which people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, and carrying out household tasks.

18. The Appendix to the Statutory Guidance provides “an illustrative and non-exhaustive list of factors which, if they are experienced by a person, it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities”. These include: “difficulty operating a computer, for example, because of physical restrictions in using the keyboard, a visual impairment or a learning disability; inability to convert or give instructions orally; difficulty understanding or following simple verbal instructions; persistent and significant difficulty in reading or understanding written material where this is in the person’s native written language, for example because of a mental impairment; and persistent distractibility or difficulty concentrating.” 19. I have also had regard to the relevant provisions of Appendix 1 of the Equality and Human Rights Commission Code of Practice on Employment - the Meaning of Disability. This says that a substantial adverse affect is something which is more than minor or trivial. In determining whether something has a substantial adverse effect, account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment, or because of the loss of energy and motivation.

20. This Appendix to this Code also says that normal day-to-day activities are those activities which are carried out by most men or women on a fairly regular and frequent basis. Day- to-day activities include activities such as walking, driving, using public transport, cooking, eating, typing, writing, going to the toilet, talking, listening to conversations or music, reading, taking part in normal social interaction, or forming social relationships, nourishing and care for oneself. This is not an exhaustive list.

21. This Appendix to this Code also confirms that where someone receives medical or other treatment which alleviates or removes the effects, the treatment is ignored, and the impairment is taken to have the effect it would have had without such treatment. This does not apply if substantial adverse effects are not likely to recur even if the treatment stops (that is to say the impairment has been cured).

22. I have considered the cases of [NAME] v [COMPANY]/0213/00: [NAME] v Patent Office [1999] ICR 302; [NAME] v Commissioner of Police of the Metropolis UKEAT/0518/12/BA; J v DLA Piper UK LLP [2010] ICR 1052; [NAME] v Boyle [2009] ICR 1056; [NAME] v [NAME] [2008] ICR 431

Case Number: 6015669/2024 4 Environment Agency v Rowan [2008] IRLR 20 EAT; [NAME] v [NAME] plc [2001] IRLR 23.

23. The following comments are taken from the judgment of HHJ Tayler in [NAME] v [NAME] in [COMPANY]:

24. In [NAME] v [NAME] J set out for conditions that require consideration when assessing whether as a person is disabled, at page 308B: “The words of the section require a tribunal to look at the evidence by reference to four conditions. (1) The impairment condition. Does the applicant have an impairment which is either mental or physical? (2) The adverse effect condition. Does the impairment affect the applicant’s ability to carry out normal day-to-day activities in one of the respects set out in paragraph 4(1) of Schedule 1 to the Act, and does it have an adverse effect? (3) The substantial condition. Is the adverse effect (upon the applicant’s ability) substantial? (4) The long term condition. Is the adverse effect (upon the applicant’s ability) long term? 25. While it is good practice to deal with each of the conditions identified by [NAME] J in [NAME] separately, there may be occasions on which it is permissible to focus on the question of whether there is substantial adverse effect on day-to-day activities without having to establish the precise medical nature of the impairment before so doing: Underhill J so held in J v [COMPANY].

26. A person can be disabled where the impairment has only a single long-term substantial adverse effect on one day-to-day activity: [APPELLANT] v Commissioner of Police of the Metropolis. The claimant in this case relied on loss of concentration.

27. In [NAME] v [NAME] Lord [NAME] held that when considering whether an impairment is likely to recur the term “likely” means that it could well happen. That phrasing has been adopted in the Equality Act 2010 Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability.

28. In [NAME] v [NAME] LJ held that it is necessary to decide whether the definition of disability is met at the time of the alleged discrimination. This reasoning was adopted by Lewis LJ in [NAME] v W [2021] IRLR 612 at paragraph 26: “the question therefore is whether, as at the time of the alleged discriminatory acts, the effect of an impairment is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts. A tribunal is making an assessment, or prediction, as at the date of the alleged discrimination, as to whether the effect of an impairment was likely to last at least 12 months from that date. The tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did (or did not) last for 12 months. That is what the Court of Appeal decided in [NAME] v [NAME]: see per [NAME] LJ (with whom [NAME] LJ agreed) at paras 22 – 25 and [NAME] LJ at paras 30 – 35). That case involved the question of whether the effect of an impairment was likely to recur within the meaning of the predecessor to paragraph 2(2) of Schedule 1 to the 2010 Act. The same analysis must, however, apply to the interpretation of the phrase “likely to last at least 12 months” in paragraph 2(1)(b) of the Schedule. I note that the interpretation is consistent with paragraph C4 of the guidance issued by the Secretary of State under section 6(5) of the 2010 Act which states that in assessing the likelihood of an effect lasting for 12 months, “account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood”.” 29. In [NAME] v [APPELLANT]/002/18, the EAT held that it is incumbent on a claimant to provide evidence to the tribunal of the activities it is claimed they are less able to carry out. This approach was approved by the Court of Appeal in [NAME] v Coffey [2019] EWCA Civ 1061 when it held that “the phrase “normal day-to-day activities” should be given an interpretation which encompasses the activities which are relevant to participation in professional life”. Underhill LJ preferred the term “working life”.

30. The focus should be on the things that the claimant either cannot do, or can only do with difficulty, rather than on the things that the person can do. Whilst a tribunal should not conduct a balancing exercise of what the person cannot do against the things they can,

Case Number: 6015669/2024 5 “findings of fact as to what a claimant actually can do may throw significant light on the disputed question of what he cannot do” (see [NAME] v Metroline Travel Ltd [2011] UKEAT/0400/10).

31. The general interpretation section in the EqA is s212. Section 212(1) provides that substantial means “more than minor or trivial”. There is no sliding scale ([NAME] v [NAME] [2013] ICR 591 EAT).

32. The effect of an impairment will only be a long-term effect if (a) it has lasted at least 12 months; (b) the period for which it lasts is likely to be 12 months; or (c) it is likely to last for the rest of the life of the person affected (paragraph 2(1)(a)-(c) Schedule 1 EqA)

33. In [COMPANY]/0617/19, the EAT confirmed that an impairment must have been long-term effect at the time that the alleged acts of discrimination are committed. Therefore, if a claimant’s condition has not lasted at least 12 months at the time of the alleged discriminatory act (or, if there is more than one act, at the time of each act), the claimant will not meet the definition of disability unless they can instead show that, at the time of the alleged discriminatory act (or acts) their condition was likely to last 12 months or for the rest of their life.

34. In [NAME] v [COMPANY] the EAT observed that the long-term requirement relates to the effect of the impairment rather than merely the impairment itself. It is not therefore sufficient that a person has an impairment that is long-term; the impairment must have had a substantial adverse effect on day-to-day activities that is long-term.

35. Decision 36. The claimant asserts that he is a disabled person by reason of (i) a back injury, and (ii) a head injury, both with effect from 23 July 2024. The respondent disputes the same. The claimant was dismissed from the respondent’s employment on 18 September 2024, and the material time for the purposes of the claimant’s disability discrimination claims are therefore between 23 July 2024, and 18 September 2024.

37. I have no hesitation in determining that the claimant was a disabled person by reason of his back injury in accordance with the provisions of the EqA during these material times. The claimant had been suffering from an impairment and injury to his back since the previous accident in August 2023. This was exacerbated in the accident on 23 July 2024, and the claimant continued to suffer back pain and require further treatment such as [NAME] and further medical examinations right up until this week. The claimant also suffered an adverse reaction to the painkillers which he continued to take. His normal day- to-day activities were affected substantially in the sense that the effect was more than minor or trivial. He was unable to drive, concentrate, or socialise. The elements of the statutory test are all in place.

38. However, there is one key question which has to be addressed. That is to the extent to which his condition was long-term as at 23 July 2024, in the sense that it was likely to last for at least 12 months. We now know as a matter of fact that the impairment and the adverse effect on the claimant’s day-to-day activities have continued to last for a period of at least 12 months. That retrospective knowledge does not of itself provide the answer to the question. The point is whether or not at the times material to this claim (between 23 July 2024 and 18 September 2024) the claimant’s impairment of his back injury and the adverse effects were likely at that time to last for a period of 12 months. Given that the claimant already had an existing back injury from the previous year and given the required medical help and prescribed medication for the pain, I conclude on the balance of probabilities that it was likely at that time that it would last for a period of 12 months.

For these reasons I find that the claimant was a disabled person at the material times by reason of his back injury.

39. However, I cannot reach the same conclusion with regard to the alleged disability of a head injury. The only medical evidence in support of this contention is that the claimant suffered a minor head injury on 23 July 2024. There is no evidence of any continuing symptoms of a head injury, nor any continued reference to his GP, nor any treatment or medication prescribed as a result of the head injury (as opposed to the back injury and the medication prescribed for that). The claimant has not discharged the burden of proof to the effect that

Case Number: 6015669/2024 6 he was a disabled person within the framework of the EqA in connection with his head injury. I dismiss that assertion.

40. These reasons are given pursuant to Rule 60(3) of the Employment Tribunal’s Rules of Procedure 2024. For the purposes of Rule 60(7), (a) the issues which the tribunal determined are at paragraph 1; (b) the findings of fact made in relation to those issues are at paragraphs 6 to 10; (c) a concise identification of the relevant law is at paragraphs 13 to 34, and how that law has been applied to those findings in order to decide the issues is at paragraphs 36 to 39. ____________________ Employment Judge [NAME] 15 April 2026 Judgment sent to Parties on 28 April 2026 For the Tribunal Office