Mrs K Ragouba v Washwood Healthcare Ltd T/a Wellbeing Pharmacy: 1302193/2018
EMPLOYMENT TRIBUNALS
Case No 1302193/2018
Between
Mrs K RagoubaClaimantWashwood Healthcare Ltd T/a Wellbeing PharmacyRespondent
Before
Employment Judge Wynn-EvansIn person for claimantMs G Nicholls (instructed by counsel) for respondentDate 9 June 2020
JUDGMENT
[1]The Claimant did not have a disability (within the meaning of section 6 and Schedule 1 of the Equality Act 2010) at the material time and her complaints of unlawful disability discrimination contrary to the Equality Act 2010 are therefore dismissed. . JUDGMENT[2]Judgment having been sent to the parties on 11 September 2019 and written reasons having been requested by the Claimant, the following reasons are provided derived from the reasons given orally at the hearing.
REASONS
[1]The reasons for my judgment that the Claimant did not have a disability (within the meaning of section 6 and Schedule 1 of the Equality Act 2010) at the material time and that her complaint of unlawful disability discrimination contrary to the Equality Act 2010 was therefore dismissed are as follows.[2]This preliminary hearing was listed by Employment Judge Richardson at a preliminary hearing on 28 May 2019 to determine the following issues:- - was the claimant disabled with reference to section 6 Equality Act 2010 at the date of dismissal/appeal hearing in January 2018. - are all or any of the claimant’s complaints of sex discrimination and, subject to (i) above, disability discrimination, out of time?[3]After discussion of the role of the interpreter which the claimant had requested, the nature of the strike out application that the respondent wished to make at this hearing, and given the time constraints arising from those discussions as well as the fact that a hearing bundle had regrettably not been produced and needed to be compiled before the hearing could proceed, it was concluded that the tribunal should proceed initially to address the disability issue with the other issues to be addressed subsequently.[4]I had before me a skeleton argument and associated documents from the respondent which was referred to as Bundle A and a bundle, which was referred to as Bundle B, compiled at my direction in an adjournment comprising the claimant’s impact statements and associated medical evidence. I heard evidence from the claimant. Even taking into account that she was a lay person and that English is not her first language, although she was of course assisted by the interpreter, I found the claimant’s evidence to be unclear and confusing in relation to the detail and timing of her medical situation even on supplementary questioning from myself seeking to clarify her position on key points, and accordingly attributed significant weight to the contemporaneous documentation from the various relevant medical professionals.
Relevant Law
[5]Section 6 of the Equality Act 2010 (EA 2010) sets out the meaning of disability for these purposes and provides as follows:-(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.(2) A reference to a disabled person is a reference to a person who has a disability.(3) In relation to the protected characteristic of disability— (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability.(4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability.[6]Schedule 1 to the EA 2010 sets out various supplementary provisions of which the following are relevant in this case:- Long-term effects 2 (1)The effect of an impairment is long-term if—(a) it has lasted for at least 12 months,(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. (3) For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed. (4) Regulations may prescribe circumstances in which, despite sub-paragraph (1), an effect is to be treated as being, or as not being, long-term.[7]In addition, the Guidance on Matters to be taken into Account in Determining Questions Relating to the Definition of Disability (2011) (“the Guidance”) was issued in 2011 to assist Tribunals when determining whether a person meets that definition.[8]To summarise the key elements of the legislation when determining whether a person is disabled for these purposes:- - Section 6 of EA 2010 provides that a person has a disability if he has a physical or mental impairment and it has a substantial and long-term adverse effect on his ability to carry out normal day to day activities. - Substantial is defined as more than minor or trivial. - Normal day to day activities are not defined but the Guidance suggests that they are things people do on a regular or daily basis. They can also include general work-related activities and study and education-related activities. - Schedule 1 to EA 2010 provides that the effect of an impairment is long term if it has lasted for at least 12 months, is likely to so last or is likely to last for the rest of the life of the person affected. Paragraph 2(2) of that Schedule says that if an impairment ceases to have a substantial adverse effect on a person’s ability to carry out such activities it is to be treated as continuing to have that effect if that effect is likely to recur.[9]The question of disability has been distilled into four questions that a tribunal should consider: - Did the claimant have a mental or physical impairment? - Did the impairment affect his ability to carry out normal day to day activities? - Was the effect substantial? - Was the effect long term?[10]Making that assessment is a question of fact and degree based upon the evidence paying particular attention to what the claimant cannot do rather than what she can and how the claimant carries out an activity compared to how she would do it if she were not impaired. On the other hand, the fact that a claimant can only carry out activities with difficulty does not establish a disability.[11]J v DLA Piper UK LLP UKEAT/02638/09 indicated that it is good practice for a tribunal to state conclusions separately on questions of impairment and adverse effect, and it will usually make sense to start by recording the claimant’s ability to carry out normal day to day activities, then consider impairment. That decision also discusses, as general points, making a distinction between depression as an illness, and depressive symptoms which are a reaction to adverse life events. When considering both the adverse effect issue and the impairment issue, tribunals may have to look behind the labels. Normal day to day activities[12]EA 2010 does not define what is to be regarded as a ‘normal day-to-day activity’ but the Guidance notes that it is not possible to provide an exhaustive list of day-today activities but that, in general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general work-related activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern. Long term[13]Where it is necessary to project forward to determine whether an impairment is long-term (see paragraph 2(1)(b) of Schedule 1), in SCA Packaging Limited v Boyle [2009] ICR 1056 HL, Baroness Hale, with whom the other Justices of the Supreme Court agreed, clarified that in considering whether something was likely, it must be asked whether it could well happen. The Guidance accordingly now states (see paragraph C3) that “likely” should be interpreted as meaning that “it could well happen”, not that it is more probable than not that it will happen. Substantial adverse effect[14]In determining whether an impairment has a substantial adverse effect on a person’s ability to carry out day to day activities, measures to treat or correct the impairment are not taken into account if - but for those measures – the impairment would have that effect.[15]The Guidance clarifies that the requirement that an adverse effect on normal dayto-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect.
Findings of fact
[16]I now set out my findings of fact based on my assessment of the evidence before me.[17]In her statement of 15 October 2018 the claimant confirmed that she had not suffered from any mental health problems before becoming employed by the respondent and that she was diagnosed by her GP with depression and anxiety on 27 July 2017.[18]In assessing that statement and the claimant’s evidence more generally it is important to identify about which specific periods she is talking when describing her medical position. In her statement of 15 October 2018 she stated – importantly in the present tense - that she had difficulty leaving her house, was unable to trust people, was unable to apply for jobs and found it difficult to cope in social situations. She also confirmed that she was prescribed Mitazapine and Citalopram for her depression, and that her depression caused her to suffer from low energy and mood swings. Subsequent events are not irrelevant to the determination of the issue of whether the claimant was a disabled person at the material time – her dismissal in January 2018 – as subsequent events can be taken into account in the tribunal’s assessment of that issue. Nonetheless, it is important to recognize that in my view this aspect of the claimant’s statement relates to October 2018 as opposed to the period leading up to her dismissal in January 2018.[19]The claimant’s second statement of 15 November 2018 is consistent with that analysis as in essence that statement explained her failure to attend a preliminary hearing on 13 November 2018 on the basis of her feeling anxious and stressed due to her diagnosed anxiety with depression. Likewise, the “to whom it may concern” letter issued by Cofton Medical Centre on 16 November 2018 states that the claimant has ongoing serious mental health problems which are quite disabling for her in that she is unable to leave the house due to the seriousness of her anxiety and references her Citalopram prescription. As the claimant’s statements and letter from Cofton Medical Centre do not provide any further specific detail as to the preceding period or indeed the period from her diagnosis in July 2017 until October 2018 I base my conclusions in relation to preceding period on the contemporaneous documents and the evidence given by the claimant orally under cross examination by Ms Nicholls and in response to questions from me.[20]It is clear that as at 27 July 2017 the claimant did have mental health difficulties. Reference is made in the letter from Birmingham Healthy Minds of that date skills and coping strategies to help the claimant manage her depression and anxiety symptoms. Sources of counselling and crisis support were referenced also in that letter. However, this letter refers to depression and anxiety symptoms and does not in my assessment amount to a formal diagnosis of depression although I am conscious as noted above that the tribunal may need to look beyond the labels in assessing whether the statutory requirements for disabled status are satisfied. The claimant was subsequently invited by letter dated 17 August 2017 to four sessions concerning stress management. In the bundle was a letter of 5 September 2017 recording amongst other things that the claimant had not attended the first of those sessions.[21]On 26 September 2017 Birmingham Healthy Minds wrote to the Claiamnt’s GP surgery. Amongst other things that letter referenced the claimant having presented with symptoms of depression on 27 July 2017, having attended two of the four CBT based sessions she had been referred to, that it has been suggested to her that counselling could prove beneficial to her and, importantly, that she was now discharged from their care. This letter was signed by an Assistant Clinical Psychologist, Majid Cheway. The claimant sought to argue that she had been discharged from their care as they could do no more for her and she needed more serious assistance. Particularly in the absence of any reference to the need for a greater level of medical intervention in that letter I do not accept that explanation.[22]On 5 December 2017, Cofton Medical Centre wrote to the respondent confirming various specific points concerning the claimant. These included the fact that she continued to suffer with feelings of stress and anxiety, her feeling negatively about the prospect of returning to her old job even though the manager she had had difficulties with having left the organization, and the fact that the claimant’s prescription of Citalopram in August 2017 had not been continued. (The letter stated that it was not clear whether the prescription was wanted or taken and the claimant indicated that she had decided not to take that medication).[23]On 11 December 2017 Cofton Medical Centre confirmed in a “to whom it may concern” letter that the doctor would be grateful if the claimant could receive further counselling as she had been finding it useful in terms of helping her manage her anxiety and stress.[24]The claimant attended weekly counselling sessions with the St Martin’s Centre for Health and Wellbeing which confirmed, in a letter dated 22 January 2018, that commencing from 28 September 2017 the claimant had at the time of writing attended 7 counseling sessions.[25]In terms of medication, according to the Claiamnt’s medical records before me in the bundle , she was prescribed Citalopram in August 2017 but not subsequently until September 2018.[26]The claimant’s medical records noted that she had the problem of “anxiety with depression” on 8 December 2017 which entry had a “date ended” of 7 June 2018. The claimant was unable to explain why those dates had been recorded in her records.[27]It was not disputed that, in the period of her absence from 1 August 2017 onwards, the reasons for her inability to attend work had been identified in the claimant’s fitness to work certificates as variously work related stressors and anxiety, stress related problems at work, stress at work and work related stress.[28]It was not disputed by the claimant that in her appeal letter on 10 January 2018 the claimant stated that she was in a “fair health condition now” and believed she would be able to return to work on a phased basis following a holiday. Likewise, in the certificate before me dated 17 January 2018 – i.e. just before the claimant’s dismissal - referenced “work related stress” as the relevant condition. Moreover, that certificate stated that the claimant wanted to return to work in February following a period of annual leave on a phased basis.[29]It was also not disputed by the claimant that, as recorded in the appeal outcome letter of 25 January 2018, she had confirmed that she was getting much better, was shopping, seeing people, managing her stress and getting back to normal.[30]In the course of her evidence the claimant also confirmed that she worked as a volunteer for a pharmacy on a part-time basis from time to time for a period of six months following her departure from the employment of the respondent. Analysis[31]Taking the constituent elements of the definition of disability set out in EA Act 2010 in turn my conclusions are as follows, reminding myself that I am applying the test on the basis of the position at the material time being the claimant’s dismissal in January 2018. Did the claimant have a mental or physical impairment?[32]In my judgment, thee claimant has not established that she suffered from a mental impairment for the purposes of section 6 of EA 2010 at the material time. The consistent picture from the medical evidence before me in respect of the period from 27 July 2017 to the date of dismissal in January 2018 is not of an impairment of depression but of depressive symptoms as a reaction to adverse life events. The claimant was never actually diagnosed with depression and, whilst one must of course look behind the labels, the consistent assessment of the contemporaneous evidence indicates that the claimant was suffering from work related stress on a basis which does not in my judgment amount to an impairment as required for these purposes. That the claimant’s condition appears to have been very much more serious in November 2018 does not in my view undermine that conclusion. Did the impairment affect the claimant’s ability to carry out normal day to day activities?[33]As I have found that there was no impairment this issue is otiose but I would have found that the impairment did affect the claimant’s ability to carry out normal day to day activities not least as she was unable to attend work. Was the effect substantial?[34]As I have found that there was no impairment this issue is otiose but I would have found that the effect of the impairment was substantial not least as she was unable to attend work. Was the effect long term?[35]Even if I were wrong in finding that the claimant did not suffer at the material time from an impairment for the purposes of EA 2010, I am not satisfied that, assessed at the material time of January 2018, it was long term in the sense of being likely to last at least 12 months. The claimant’s issues had arisen in late July 2017 and, whilst she had undergone medical supervision, she had been discharged from the care of Healthy Minds by late September 2017. It was confirmed in January 2018 that the claimant was fit to return to work in February 2018 on a phased return to work basis. The claimant had not been prescribed Citalopram after August 2017 and she was able shortly after dismissal to take up 6 months of voluntary work at a pharmacy. She had confirmed to the respondent in the appeal process that she was getting much better and getting back to normal. On the basis of these indications of an ongoing recovery in the period from August 2017 to dismissal in January 2018 and indeed beyond, and in the absence of any more formal medical diagnosis and prognosis I am not satisfied that the claimant’s condition, such as it was, was likely to last for 12 months in the sense that I must assess that likelihood – could it well happen. Judgment[36]On the basis of the above analysis I concluded that the claimant was not a disabled person at the material time for the purposes of section 6 of the Equality Act 2010. . JUDGMENT having been sent to the parties on 11 March 2020 and written reasons having been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:[37]As regards time limits, again the legal principles are well-established. The Employment Tribunal has a wide discretion to extend time on a just and equitable basis, but the Employment Tribunal must be convinced it is just an equitable to extend time – see Robertson v Bexley Community Centre [2003] IRLR 434 CA. The Employment Tribunal can take into account Limitation Act factors (as listed in section 33(3) of the Limitation Act 1980) but the enquiry is not limited to those factors. Other relevant factors may be: the existence of outstanding grievance procedures, but that is only one factor (Apelogun-Gabriels v London Borough of Lambeth & anor [2002] IRLR 116 CA); mental health issues are not the only factor but a significant one (DCA v Jones [2007] EWCA Civ 894; and numerous cases on whether the error of a representative can be taken into account, which are highly fact-sensitive but do not rule it out as a factor. It has been held that failing to adopt a checklist approach risks leaving out a significant factor – London Borough of Southwark v Afolabi [2003] IRLR 220 CA. Finally, in Lowri Beck v Brophy [2019] EWCA, it was held that the question is essentially one of fact for the Employment Judge, absent any question of perversity.[38]The law is also well-established regarding applications to strike out or order a deposit. In North Glamorgan NHS Trust v Ezsias [2007] IRLR 603 CA it was held that if a case is fact-sensitive, it is inappropriate to strike out. Case law also recognises that striking out is a draconian measure and other alternative, such as an Unless Order should be considered (see, for example, Girvan v Humberside Probation Trust EAT/0179/09. The Employment Tribunal should assume the Claimant will prove the facts alleged and that this is the totality of the evidence – see Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46. Striking out for non-compliance with and Order applies to the whole claim (RBS v Abraham EAT/0305/09). In Community Law Solicitors & others v Methuen EAT/0024/11, the EAT said that a claim should have been struck out where the only argument was that the Claimant was of a different sex or race to their replacement and in Patel v Lloyds Pharmacy Ltd EAT/0418/12 it was held that: “It cannot be right to allow a case to succeed which otherwise has no reasonable prospect of success because something may turn up”. As to cases where a fair trial is no longer possible, in Bolsch v Chipman [2004] IRLR 140 EAT, it was held that there were three key questions:(1) did the conduct relate to the manner of the proceedings?;(2) did the conduct make it impossible to hold a fair trial?; and(3) was there a step short of barring the wrongdoer that would be proportionate?. In Liddington v 2Gether NHS Foundation Trust EAT0002/16 an Employment Judge’s decision to strike out the claim after repeated (and unsuccessful) case management to clarify the claims was upheld (see also Hussain v UPS Ltd EAT/021/17). Submissions and Conclusions[39]I have incorporated the submission into the background, issues and law set out above and also make brief reference to them in these conclusions.[40]I shall deal first with Allegations 1 – 6. They were not in the Claim Form, nor were they a re-labelling of what was there. Consequently, the Claimant has to apply to amend to add those allegations. They are some years out of time. I do not think the Claimant should be allowed to do so. It has been observed by the Employment Appeal Tribunal that a Claim Form does not serve as an opportunity to get the ball rolling, such that it can be added to over and over again. That unfortunately, is exactly what has happened in this case, I accept that the Claimant was unwell for some of this period, but I note that she has had the benefit of legal advice. She took advice prior to dismissal and made reference to it in her second grievance letter. She has since taken more legal advice, albeit that she is critical of some of it. It is possibly stating the obvious to say that if the Claimant was unhappy with the advice from the Solicitor named in the Claim Form, that is a matter for her to take up with her. Allegations 8 to 10 are also applications to amend and, for the same reasons, I do not accept the Claimant should be allowed to do so. For the reasons already stated, none of these are (as a matter of law) allegations of direct sex discrimination. 40 My conclusion is that the Claimant is seeking to attach labels to allegations of mistreatment in order to be able to claim discrimination and is prepared to change those labels when it is pointed out that she has no prima facie case. Allegation 7 is a good example of this. Allegation 7 is out of time. It is plain from what the Claimant said yesterday that it does not work as a direct sex discrimination allegation, which was why she then suggested it could be race discrimination, although legally that does not work either. It would not be in the interests of justice to extend time on Allegation 7 to allow the Claimant to pursue it out of time. Allegation 7 is the only allegation in the Claim Form from which it follows that the Respondent’s representative is right to say that the Claimant is seeking to amend a Claim Form containing an allegation that I have decided cannot proceed. That is another reason for not allowing the amendment applications.[41]Allegations 12 - 17 concern the amendment application to add direct race and/or religious discrimination. My decision is not to allow this. The Claimant has had ample opportunity to identify these allegations before November 2019 and has not done so. last year and she chose not to do so. I accept that the Claimant believes she was badly treated by Ms. Sabiha Khaliq, which may well be so. However, poor management does not equate to discrimination. I note that two of the allegations would, if proven, amount to religious discrimination and/or harassment, although the same cannot be said of the others. I think it unbelievable that the Claimant would not have included those two allegations in her Claim Form and instead chose to solely refer to the alleged failure to provide a contact number. If they had occurred, they would surely have been set out there, rather than the much more trivial allegation which was. Furthermore, they are almost three years out of time. The Respondent would have great difficulty defending them given that Ms. Sabiha Khaliq is no longer is employed by it. The balance of hardship is heavily in favour of the Respondent in that regard.[42]The final allegation is Allegation 11 which would have been in time if included in the Claim Form. Since it was the most recent allegation, it is quite astounding that it was not included. Furthermore, it will be clear from the findings I have made about the content of the dismissal letter that what was being considered were whether there were potential reasonable adjustments for the Claimant. If anything, this is a reasonable adjustments allegation which had been re-labelled as a direct sex discrimination allegation. That is because the reasonable adjustments complaint cannot be pursued due to the Claimant being held not to be a disabled person. I have had regard to document C2 in this context, but this appears to cover the period of complaints about Ms. Sabiha Khaliq rather than the allegation about what occurred on the 19 January 2018. I do not accept that this is an amendment application that should be allowed. I do not accept that the allegation has any reasonable prospect of success.[43]Further, and in the alternative, had I not made the decision above regarding the amendment/time limit issues, I would have struck this claim out because it is very clear from the history that the claimant has behaved unreasonably in her conduct of these proceedings (viewed objectively) and has failed to comply with Orders. In addition, it is my conclusion that a fair hearing is no longer possible. I also have in mind the overriding objective (Rule 2): this case concerns less than one year’s employment; the sole allegation contained in the Claim Form was misconceived; despite the flexibility afforded to her, the Claimant has failed to properly articulate her claims; and the consequence is that the time spent by the Employment Judges and Respondent in dealing with this case is wholly disproportionate and has caused huge expense to the public purse, thus delaying claims which may have merit being heard.[44]For the above reasons, I have decided that the Claimant’s claim to this Tribunal should be struck out in its entirety. Signed by: