Simon v Manorview Hotels Limited (Glasgow)
Tarlun Ahari successfully represented the Claimant in a disability status hearing. The judge found that the Claimant was disabled by reason of the physical impairments of fibromyalgia and/or perimenopause. Tarlun submitted that the Claimant received medication for both conditions and their deduced effects must be considered. The Respondent pointed to the alleged lack of medical evidence regarding the deduced effects of fibromyalgia and the little to no evidence of the effect on normal day to day activities. The judge noted that fibromyalgia caused the claimant body pain, fatigue and cognitive issues (“brain fog”). During a flare up, the Claimant had difficulty sleeping, walking, standing, sitting, concentrating on tasks and making decisions. These were all normal day to day activities. Perimenopause caused similar symptoms and additionally caused low mood/anxiety. The judge found that if medication or treatment for both conditions were to cease, it was likely the Claimant would experience the same symptoms and effect on activities that she experienced during a flare up.
Comment: In determining disability status, the Tribunal must take into account any aspect of the Guidance on the definition of Disability (2011) and the EHRC Code of Practice on Employment(2015) . This case reiterated that the cause of an impairment does not require to be established. Further, that when a person has more than one impairment, account should be taken of whether the impairments together have a substantial effect overall on the person’s ability to carry out normal day-to-day activities. Whether or not someone has a disability within the meaning of section 6 of the Equality Act 2010 will turn on the individual facts of the case. Whilst medical evidence is extremely helpful, contemporaneous medical records (particularly GP ones) often do not go into necessarily detail about the effects of impairments- which is crucial for the determination of disability status in a legal context. Much will turn on the Claimant’s own evidence; the cogency of which will improve if corroborated by the medical records. Solicitors should therefore take time to ensure the evidence of the Claimant, usually by way of an impact statement, addresses the relevant factors to support their claim of disability.
The judgment is available here.
Given the cultural shift towards understanding the menopause / peri-menopause, and their effects, this case has attracted media attention. The case was covered in Law 360 (sign in required).
