Ian Escudier v Coca-Cola Europacific Partners Great Britain Limited

A tribunal may not treat recurrent episodes of loss of consciousness as lacking a substantial adverse effect on normal day-to-day activities merely because each episode and its immediate aftermath are short. On the evidence before it, a finding to that effect was perverse.

It was also perverse to find no evidence that the impairment was likely to last more than 12 months where the evidence showed neurological examination, a diagnosis about a year later, ongoing treatment and a further review planned for the following year.

The claimant, a driver dismissed for misconduct, brought claims for unfair dismissal and disability discrimination. A preliminary hearing before the Employment Tribunal determined whether he was disabled by cough syncope and/or anxiety and depression for the purposes of the Equality Act 2010.

The tribunal found neither condition amounted to a disability. It refused reconsideration. The claimant appealed the finding on cough syncope, a condition involving dizziness and recurrent short periods of unconsciousness. The central issue was whether the tribunal’s findings on substantial adverse effect and long-term effect were sustainable on the evidence.

1. Appeal allowed in part. The finding that cough syncope was not a disability could not stand and was remitted to a differently constituted Employment Tribunal. The finding concerning anxiety and depression remained undisturbed.

2. The tribunal had found that the claimant lost consciousness for a short period on about five occasions in a year, and had to rest afterwards. Its conclusion that such a condition did not have a substantial adverse effect on normal day-to-day activities was perverse. The brevity of an episode did not support that conclusion where loss of consciousness occurred repeatedly.

3. The tribunal’s conclusion that the condition was not likely to last more than 12 months was also perverse. The available evidence included neurological examination in June 2022, formal diagnosis about a year later, ongoing treatment and a planned follow-up after a further 12 months. The tribunal had instead relied on its own view of how a person experiencing unconsciousness would have behaved, while overlooking that there had been a neurological referral.

4. The EAT did not determine the disability issue itself. The remitted tribunal was to decide it, potentially at the outset of the forthcoming liability hearing, on the admissible evidence. If formal medical evidence remained unavailable, it could consider the claimant’s evidence as to the timing and effects of his symptoms.

• Employment Appeal Tribunal: Allowed the appeal concerning cough syncope and remitted that issue to a differently constituted tribunal: [2024] EAT 145.

• Employment Tribunal, Ashford: At a preliminary hearing, held that cough syncope and anxiety and depression did not amount to disabilities. It later refused reconsideration.