Case Study: Mr Ian Escudier v Coca-Cola Europacific Partners Great Britain Ltd [2024] EAT 145

By Neil Guss Regional Employment Rights Manager &

     James Tinston Employment Rights Lawyer

Background

Mr Ian Escudier, a long-serving employee of Coca-Cola Europacific Partners (CCEP) for over 30 years, was dismissed in July 2022 for misconduct. At the time of his dismissal, he had a live final written warning. Following his dismissal, Mr Escudier brought claims of unfair dismissal and disability discrimination before the Employment Tribunal (ET). He based his discrimination claim on cough syncope, anxiety and depression. 

Cough syncope is a condition that can cause a person to experience short-term loss of consciousness following a coughing fit. The key issue before the ET was whether Mr Escudier’s condition qualified as a disability under the Equality Act 2010, which would provide protection against discrimination based on his health. 

Employment Tribunal Findings

The ET, presided over by Employment Judge Martin, concluded that neither cough syncope nor anxiety or depression amounted to disabilities under the Equality Act. At a Preliminary Hearing to determine the question of disability, the judge determined that cough syncope did not have a "substantial adverse effect" on Mr Escudier’s ability to carry out normal day-to-day activities and was not long-term, as it was diagnosed formally only after his dismissal. 

Appeal to the Employment Appeal Tribunal (EAT): Mr Escudier, representing himself, appealed the ET’s decision to the Employment Appeal Tribunal (EAT), focusing on whether the ET had erred in dismissing cough syncope as a disability. The EAT, led by His Honour Judge Barklem, considered the appeal on these limited grounds. 

EAT Judgment

The EAT found that the ET’s conclusions regarding cough syncope were perverse, for the following reasons: 

1. Substantial Adverse Impact: The ET had acknowledged that Mr Escudier experienced a loss of consciousness, lasting around 30 seconds followed by a short period of rest,  due to cough syncope, occurring multiple times a year, but concluded that this did not substantially affect his day-to-day activities, based on the fact that he could resume normal day-to-day activities following the short period of rest. The EAT ruled that this conclusion was unreasonable, as frequent loss of consciousness clearly affects normal day-to-day activities. 
2. Long-term Condition: The ET also erred in determining that the condition was not long-term. Mr Escudier had been diagnosed by a neurologist and was receiving ongoing treatment, with follow-up appointments planned.   The EAT gave weight to a letter dated 28 June 2023, which despite postdating the dismissal, confirmed the diagnosis of cough syncope and that he had blackouts twice a week.  This evidence suggested that the condition was likely to last more than 12 months, meeting the Equality Act’s definition of a long-term impairment. 

The EAT ruled that the finding regarding cough syncope must be remitted to the tribunal for reconsideration, particularly in light of the ongoing medical diagnosis and its implications. The EAT suggested that this issue could be addressed during the liability hearing, scheduled for October 2024, which would focus on the broader claims of unfair dismissal and discrimination. 

The EAT upheld the ET’s findings regarding anxiety and depression, as there was no evidence to contradict the tribunal's conclusion that these conditions did not meet the legal threshold for disability at the relevant time. 

Implications for Trade Unions

This case highlights the importance of ensuring that medical conditions affecting employees are thoroughly assessed to determine whether they meet the definition of disability under the Equality Act. Employers and union representatives should take particular care in cases involving lesser-known conditions, such as cough syncope, to ensure that all relevant medical evidence is considered. 

For trade union representatives, this case emphasises the need to advocate for members' rights to reasonable adjustments in the workplace, especially where health conditions affect their ability to perform their duties. Union members should be encouraged to document and seek appropriate medical evidence to support claims related to disability discrimination. 

Conclusion

The EAT’s decision serves as a reminder that tribunals must carefully evaluate the impact of health conditions on an employee's ability to carry out normal activities. The remittal of this case offers a second opportunity to address whether cough syncope should be recognised as a disability, potentially impacting the outcome of Mr Escudier’s broader claims of unfair dismissal and discrimination. Union members facing similar issues should be aware of their rights under the Equality Act and ensure that any health-related concerns are adequately documented and presented during tribunal proceedings.