The Claimant was dismissed for misconduct. At the time he had a live final written warning in relation to earlier matters. His form ET1 ticked the boxes for unfair dismissal and disability discrimination. The narrative at box 8.2 referred to a serious injury at work in 2021 which had caused him ongoing neurological and other health issues. There was no reference to either of the conditions which the EJ had to determine in this case, in the ET1 or accompanying documentation. At a preliminary hearing, it was ordered that a further preliminary hearing be held to decide the issue of disability in relation to cough syncope, anxiety and depression. The ET found that the Claimant did become dizzy on occasion and had lost consciousness on about 5 occasions over the past year. However, the ET concluded that there was no medical evidence to suggest that it was likely to last more than twelve months. It was not a medical condition the EJ was familiar with, and the EJ would expect there to be evidence about this but there was none. The EJ did not find cough Syncope to be a disability as defined in the Equality Act 2010. The Claimant appealed.

The EAT allowed the appeal. The EJ appeared to have relied on her own view as to how a person losing consciousness would have behaved, but seemed to have ignored the fact that, even if not in the GP notes, there had clearly been a referral to a neurologist about this condition. In these circumstances, the EAT considered that the judge’s finding as to Cough Syncope could not stand and should be remitted.