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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Young v Commissioner of Police of the Metropolis (DISABILITY DISCRIMINATION; MEANING OF DISABILITY) [2024] EAT 55 (15 May 2024) URL: http://www.bailii.org/uk/cases/UKEAT/2024/55.html Cite as: [2024] EAT 55 |
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Fetter Lane, London, EC4A 1NL |
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B e f o r e :
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MS HAYLEY YOUNG |
Appellant |
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- and - |
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COMMISSIONER OF POLICE OF THE METROPOLIS |
Respondent |
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Mr A Sendall (instructed by Gowlings WLG (UK) LLP) for the Respondent
Hearing date: 18 January 2024
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Crown Copyright ©
SUMMARY
DISABILITY DISCRIMINATION; MEANING OF DISABILITY
The appellant had been dismissed following a series of absences on account of various reasons which she claimed were manifestations of an underlying condition of fibromyalgia, which satisfied the statutory definition of "disability". The tribunal held that her symptoms, whilst substantial, were not due to fibromyalgia or any other underlying health condition and that she had not been disabled at the material time. The tribunal did not err in failing to accept that the appellant had suffered from fibromyalgia at the material time or in focusing its attention on whether the appellant had suffered from that or any other underlying health condition, in determining whether there had been a long-term, substantial impact on the appellant's ability to carry out normal day-to-day activities at the material time.
JASON COPPEL KC, DEPUTY JUDGE OF THE HIGH COURT:
Background
The tribunal's findings on "disability"
"At the material time (between February 2018 and the date of dismissal on 9 November 2019) was the claimant disabled within the definition of section 6 of the Equality Act 2010 (EQA 2010) by reason of the physical and mental impairment of fibromyalgia".
(1) A letter from the appellant's GP dated 4 July 2019 stated a belief that various symptoms suffered by the appellant, including depression, tiredness, headaches, joint pain and tenderness were due to fibromyalgia (§9 of the judgment).
(2) A letter from a physiotherapist dated 9 October 2020 stated that the appellant had "presented today with a diagnosis of fibromyalgia as of June 2019", which the tribunal understood to be a reference to the GP's letter of 4 July 2019. The physiotherapist's letter went on to say that that diagnosis "was then confirmed by our internal rheumatology team in August 2020" (§12 of the judgment). There was no further evidence before the tribunal of that (or any other) confirmatory diagnosis.
(3) The appellant relied upon various items of correspondence from the Department of Work and Pensions awarding her the daily living and then mobility components of Personal Independence Payment and Universal Credit/Employment Support Allowance, which did not refer to fibromyalgia (§§15-16 of the judgment).
".. The first reference to fibromyalgia is the GP's letter of 4 July 2019 as set out above. However we have carefully considered the weight that we can place upon this letter. There are obvious errors within this letter such as reference to a fall from 'a wall'. It is possible that the GP did not have an accurate picture of the claimant's initial fall at work. The GP attributes his reference to fibromyalgia to falls experienced by the claimant at work without reference to other falls experienced by the claimant. We have found that the claimant's evidence in relation to the falls that she has experienced is unreliable. The claimant has a tendency to downplay or omit references to falls she has experienced outside work. The end result is a likelihood that the GP has not been provided with a comprehensive history of relevant events that could have given rise to musculoskeletal issues. The contemporaneous evidence of subsequent falls including the need for the trip to A&E and x-ray suggest that these are significant events that may well have given rise to some symptoms. There is a real risk that any belief of 'fibromyalgia' by the GP in July 2019 has been influenced by an absence of potential alternative reasons for the claimant's musculoskeletal pain such as subsequent accidents/falls. Fibromyalgia is by its nature, a difficult condition to identify. For these reasons we place considerably reduced weight upon this GP letter. There is no other medical evidence supporting the existence of fibromyalgia until the reference to the diagnosis in August 2020. Taking the entirety of the evidence into account we conclude that while the claimant has shown she had considerable symptoms during the material time we consider that it is more likely than not that these arose from conditions other than fibromyalgia which she had not mentioned in her original claim. The claimant has not shown on the balance of probability that the difficulties that she experienced with her day-to-day activities as of June/July 2019 were attributable to fibromyalgia."
"We consider that it is more likely than not that the claimant received a diagnosis of fibromyalgia in August 2020. Due to the length of time following the various falls experienced by the claimant as set
out above and the claimant's ongoing symptoms, we consider this diagnosis to carry more weight. We conclude, by reference to both the DWP awards indicating a likely substantial adverse effect on the claimant's ability to carry out her day-to-day activities and the claimant's diagnosis, that the claimant was a disabled person by reason of fibromyalgia with effect from August 2020. The material time identified ends on 9 November 2019. We conclude that the claimant was not a disabled person by reference to fibromyalgia during the material time."
"We have considered whether any of the various absences that led to the claimant's dismissal, can be attributed to fibromyalgia. All of these absences predate the claimant's first mention of potential fibromyalgia. Further, potential causes other than fibromyalgia for the various absences can be found within the documentation, for example the claimant has been diagnosed with IBS and depression, she experienced repeated falls including identifiable ankle injuries that warranted x-ray in May 2018. We do not have reliable evidence to link any of the claimant 17 absences for work to any underlying health condition or in particular fibromyalgia either at the time of her dismissal or subsequently."
The grounds of appeal
"We also address the claimant's submission in respect of the cause of her fibromyalgia. The claimant also places significant emphasis on her first fall of February 2018 and alleges that this is the trigger for her subsequent development of fibromyalgia. While it is common ground between the parties that a fall potentially may trigger the onset of fibromyalgia, it is one of a host of potential causes and there is no medical evidence produced by the claimant providing any indication as to the cause of the claimant's fibromyalgia. Further, even if the claimant's fibromyalgia was triggered by a fall, as the claimant has experienced multiple falls and produced no reliable evidence commenting on potential triggers, we conclude that the claimant has not shown on the balance of probability that her fibromyalgia was triggered by her fall at work in February 2018 as alleged or indeed any other identifiable event."
(1) It was the appellant's own case, encapsulated in the agreed issue set out in §3 above, that she satisfied s. 6(1) of the Equality Act 2010 at the material time "by reason of the physical and mental impairment of fibromyalgia" (and see the first sentence of §59 of the judgment). True it is that she had used different and less specific descriptors in her ET1 and witness statement for the hearing, but the tribunal cannot be criticised for deciding the case that the parties, including the appellant, invited it to decide.
(2) That the appellant had tied her case on "disability" to fibromyalgia was not an accident of pleading or case management. The absences which had led to her dismissal had had a range of immediate causes (see §1 above), many of which could have been discrete or short-term events which would not assist the appellant in establishing that she suffered from an impairment having a substantial and long-term adverse impact upon her ability to carry out day to day activities. Also, the tribunal pointed out that some of the reasons for absence had not been relied upon at all by the appellant in support of her claim to have been disabled at the material time (see §59: "it is more likely than not that [the appellant's symptoms] arose from conditions other than fibromyalgia which she had not mentioned in her original claim"). Characterising the various reasons for her absences as manifestations of the same condition, namely fibromyalgia, was a considered legal strategy on the appellant's part which sought to knit together discrete symptoms into an overarching, substantial and long-term impairment. That strategy was rejected by the tribunal on the facts, and I have rejected grounds one to three of the appeal which seek to challenge that conclusion of the tribunal. Contrary to ground six, the tribunal also considered whether there was any other underlying condition to which the appellant's disparate symptoms could be attributed during the material period. This again does not evidence an erroneous focus on the need for a specific diagnosis but was a legitimate enquiry into whether there was anything to link disparate and potentially short-term symptoms so as to evidence a long-term, substantial impairment.
(3) The position might be different if the tribunal had made findings which amounted in substance to a finding of disability at the material time if the appellant's "target" of fibromyalgia were discounted. In fact, and as I have already noted, the tribunal considered whether the appellant's absences from work had been due not merely to fibromyalgia but to any underlying health condition and concluded that they were not. It stated (§78, in the section on unfair dismissal): "The claimant's individual absences were not connected to her fibromyalgia or any underlying health condition linking the various reasons. This is a scenario of intermittent absences due to a multitude of ailments." Similarly, in the section of its judgment concerned with the "disability" issue, the tribunal stated (§63): "We do not have reliable evidence to link any of the claimant 17 absences for work to any underlying health condition or in particular fibromyalgia either at the time of her dismissal or subsequently". The tribunal accepted that the appellant had experienced "considerable symptoms during the material time" (§59) and that her symptoms were, from at least 8 July 2019, "having a substantial detrimental effect on her ability to carry out her day-to-day activities" (§58). However, its conclusion expressed in §§63 and 78 that these symptoms were not at that time attributable to any underlying health condition but evidenced a multitude of different ailments clearly indicates that, in its view, the appellant's impairment did not, at the material time, satisfy the statutory condition of having a long-term, substantial adverse impact on her ability to carry out normal day to day activities. That was a conclusion which the tribunal was entitled to reach on the evidence.