Employment tribunal strikes out disability discrimination claim against international firm

A former Simmons & Simmons employee’s disability discrimination claim has been dismissed after she was found not to have been disabled at the relevant time.

Employment judge Keogh also found that Ms L Goulden’s evidence was ‘unreliable’ having been ‘altered, and deliberately so, to improve her case’.

Goulden worked for Simmons & Simmons on probation from February to September 2023. She claimed she began suffering from heightened symptoms associated with fibromyalgia around April and was diagnosed with the condition in August. The judgment found she was not diagnosed at that time and fibromyalgia ‘was considered by the claimant’s GP surgery as one of a few possibilities’ to explain her symptoms.

The judge added: ‘While the claimant may have thought she had a verbal diagnosis of fibromyalgia, a mistaken belief cannot make something more likely to happen.’

Goulden did have a fibromyalgia diagnosis by September 2023, the judge said.

Finding Goulden’s evidence unreliable, the judge said she was ‘supported in this conclusion by the inconsistencies between the claimant’s written account and documentary evidence about her activities during her employment’.

Goulden organised drinks for some colleagues when her symptoms were ‘fluctuating and she felt obliged to go out’ around the end of May 2023. In her witness statement, the judgment recorded, she said she ‘cancelled my birthday plans [in May 2023] as I did not have the energy to socialise and was in a lot of pain the entire weekend’ and was ‘experiencing excruciating pain in my bones and joints’ and other symptoms which ‘fluctuated and intensified over the course of each day and night’.

The judgment said that ‘while some of the symptoms described’ accorded with what Goulden said in an eConsultation, the description of her symptoms was ‘somewhat inconsistent with the claimant actively going about arranging drinks for herself and her team’.

Her witness statement ‘significantly downplays the claimant’s ability and willingness to socialise at this point in time’, the judge said, adding: ‘The messages and the claimant’s activities around this time are also inconsistent with the claimant’s suggestion that she was suffering from constant pain, headaches and brain fog which affected her capacity for work.’

The judge said Goulden’s oral evidence about her condition ‘is equally unreliable’ as she ‘sought to minimise the things she was able to do during this period’. The GP records ‘are likely to be the most accurate reflection of the symptoms [Goulden] was experiencing’.

Dismissing Goulden’s claims, the judge said Goulden did have an impairment by the end of May 2023 and there was ‘some adverse effect’ on her ability to do normal day-to-day activities as a result of the ‘physical and mental impairments she was suffering from at the time’. However, she did not find the adverse effects were substantial.

Dismissing Goulden’s claim, the employment judge said Goulden was not ‘under a disability within the meaning of section 6’ of the Equality Act 2010 at the relevant time and she had ‘no alternative but to strike out the claim’.