Mr Anderson, was employed by P.J. Carey as a groundworker on a construction site in Fife. On his first day of work on the site, 18 August 2023, Mr Anderson alleged that he had been discriminated against on the grounds of disability, left the site and lodged a claim in the Scottish Employment Tribunal.
Claims
Mr Anderson brought claims before the Scottish Employment Tribunal first, against the agency that hired him, and, second against P.J. Carey; his claims were for disability discrimination where he alleged that he had been subjected to less favourable treatment as a result of his disability. Mr Anderson’s alleged disability was that of ADHD.
Defence
P.J. Carey submitted, first, that Mr Anderson was not disabled at the material time, namely 18 August 2023, and that he had not provided any evidence to show that he was in fact disabled. Whilst Mr Anderson did provide evidence to show that he had been diagnosed with ADHD as a child, which was not disputed, the Tribunal agreed with P.J. Carey that he had failed to discharge the burden of proof and demonstrate that, on 18 August 2023, he was suffering from ADHD.
The Tribunal noted that, although sometimes those who are diagnosed with ADHD in childhood will continue to suffer with the condition throughout their lives, it is not established that this will always be the case and has not been proven as such here.
P.J. Carey also submitted that if Mr Anderson were to be found to have ADHD, he would not be able to establish a causal link between the condition and the impairments he claimed to suffer from due to the fact that he could not distinguish these impairments from those suffered by long-term cannabis users, of which he is one. Mr Anderson regularly used cannabis for 12 years, albeit with a medical prescription since June 2022. The Tribunal agreed that the effects of habitual cannabis use, such as poor sleep and low mood, have a significant overlap with those who struggle with ADHD and therefore, it would not have been possible for a causal link between any impairments and ADHD to have been established.
Success
Mr Anderson, was employed by P.J. Carey as a groundworker on a construction site in Fife. On his first day of work on the site, 18 August 2023, Mr Anderson alleged that he had been discriminated against on the grounds of disability, left the site and lodged a claim in the Scottish Employment Tribunal.
At the Preliminary Hearing and Employment Judge D’Inverno held that Mr Anderson had failed to discharge the burden of proof in establishing, on the balance of probabilities, a causal link between his ADHD and several of the impairments complained of in order to differentiate them from symptoms commonly associated with continuous long term use of cannabis.
Comment
The defence of a potentially uncapped claim at an early stage of a Preliminary Hearing represents a great success. Not only was the claim dismissed, but the sensible early resolution of the case meant that the case was dealt with swiftly and cost effectively.
Conclusion
The PHB team are experts in defending as well as bringing discrimination claims. If you would like to discuss any of the issues raised in this article, please do not hesitate to contact James Townsend.
You can read the judgement in full here.
