Litigator able to bring disability discrimination claim, tribunal rules

Operation: Lawyer had emergency surgery

A litigator who had emergency heart surgery three months before being sacked was disabled and so can take forward a discrimination claim against his ex-firm, a tribunal has ruled.

It did, however, reject his argument that – because he was a personal injury specialist – he knew which symptoms were worth reporting to his doctors.

Employment Judge Midgley held that Richard Rich was a disabled person for the purposes of the Equality Act 2010 due to myorcardial infarction and aortic regurgitation.

According to LinkedIn, Mr Rich had worked as a litigator at West Sussex firm Wannops for nearly 16 years when he was dismissed in November 2021 on the grounds of gross misconduct.

Having brought a claim of disability discrimination, a preliminary hearing was held to determine whether he was a disabled person at the material time – August to November 2021 – as Wannops argued that he was not.

The judge said an “unusual feature” of the case was that his evidence “hardly accords at all with the medical evidence: the symptoms and their effect upon his day-to-day activities find almost no corroboration in the medical notes and contemporaneous evidence”.

Mr Rich said he had not told doctors about the multiple symptoms he suffered because “he was a private person and did not like to discuss personal matters”, he had “a very high pain threshold, was not a moaner or complainer”, and would only mention symptoms when he felt that they were serious and required treatment.

He also said he was in denial as to the seriousness of his condition.

The firm argued that these explanations and Mr Rich’s description of his symptoms were “simply not credible and should be rejected”.

Judge Midgley said “in many ways I found the claimant to be an honest and credible witness”, and made allowance for the fact that he was distressed when his heart condition manifested itself in August 2021 – he had to have emergency surgery to fit a stent and was told that there was a one in 10 chance he would die in surgery.

“It is understandable that the claimant would be shocked given the manner in which his life had switched from full throttle to ‘hanging by a thread’ as he described it.

“However, that same shock would, I conclude, have led him to more vigilant and not less in identifying and reporting the symptoms which the treating clinicians drew to his attention as requiring immediate report to his doctors.”

The judge did not accept Mr Rich’s argument that his knowledge of medical matters through his legal practice meant “he could identify matters which could and would be treated” and so only reported the symptoms which fitted which could be.

First, he said, Mr Rich actually did report symptoms which did not require urgent treatment, such as a persistent cough and blood clots in his nose.

“Secondly, it is one thing to practice personal injury, it is quite another to identify and diagnose symptoms connected to the heart. If he was in any doubt, I am certain that the claimant would have reported symptoms to his doctors for that reason.”

As a result, the judge rejected Mr Rich’s evidence on his symptoms and their effect save where they were corroborated by the medical evidence or where he identified them separately.

“On balance I am of the view that the claimant has conflated matters which may have occurred after the period with the symptoms he was experiencing during that period,” he added.

Nonetheless, Judge Midgley held that Mr Rich met the test to be classified as disabled at the relevant time.

It was a physical impairment that affected Mr Rich’s ability to carry out normal day-to-day activities, and that the adverse effect was both substantial and long term.

Had the stent not been inserted, “there would have been a substantial adverse effect on the claimant’s ability to walk distances of more than 1.5 km without significant pain and without requiring breaks, and on his ability to undertake physical activity such as lifting heavy objects”.

Judge Midgley observed: “It is trite that living is a day to day activity. Dying through stroke or cardiac arrest would have more than a trivial impact on that activity. Similarly, any risk of stroke or cardiac arrest would have such an effect.”

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