Employment Judge GidneyDr Melanie Sharp (instructed by Counsel) for respondentDate 25 July 2025
JUDGMENT
[1]The Claimant’s application dated 17th July 2025 to amend her Claim Form dated 15th February 2024 to include an allegation of constructive dismissal as an incidence of direct disability discrimination is refused. Case Number: 1302785/2024 2 of 2[2]The Claimant’s application dated 17th July 2025 to amend her Claim Form dated 15th February 2024 to include a claim of indirect disability discrimination is refused.
REASONS
[1]The Claimant commenced employment with the Respondent in the role of Road Account Manager 21st November 2022. She gave notice of her resignation from her employment on 24th August 2023, which took effect on 21st September 2023, when her employment terminated, after 10 months continuous service.[2]On 7 th December 2023 the Claimant notified ACAS of a dispute with the Respondent. She received her Early Conciliation Certificate on 18th January 2024 [1]1 . By a Claim Form dated 15th February 2024 [2] the Claimant presented the following claims: 2.1. Direct Disability Discrimination (s13 EqA); 2.2. Harassment Related to Disability (s26 EqA); 2.3. Indirect Disability Discrimination (s19 EqA); 2.4. Direct Age Discrimination (s13 EqA); 2.5. Harassment Related to Age (s26 EqA); 2.6. Indirect Age Discrimination (s19 EqA);[3]The Claimant asserts that she is disabled by reason of the mental impairment of depression, as defined by s6 Equality Act 2010 (‘EqA’).[4]The Respondent submitted an ET3 Response Form [25] which denied all of the Claimant’s claims and that she qualified as disabled as defined by s6 EqA. 1 Numbers refer to page numbers in the Preliminary Hearing Trial bundle. Case Number: 1302785/2024 3 of 19[5]The matter was first case managed by Employment Judge Gaskill on 22nd July 2024 [58]. Judge Gaskill identified the following issues for determination at a Preliminary Hearing [60]: The Preliminary Hearing Issues[6]The issues had narrowed by the time the case had reached me as, by then, Further & Better Particulars of the Claimant’s claim [102] had been received. The outstanding issues for today were: 6.1. Whether at any material time the Claimant was disabled as defined in the EqA; 6.2. Whether there are any elements of the claim for which the Tribunal lacks jurisdiction because the claim was presented out of time? (The judge at the preliminary hearing may defer a decision on this until the final hearing); 6.3. Pursuant to Rule 37 of the Employment Tribunals Rules of Procedure 2013, whether any elements of the claim should be struck out as having no reasonable prospects of success. (In assessing the prospects of success, the Claimant's pleaded case will be considered at its height and the judge may take account of the time issues referred to above). 6.4. Pursuant to Rule 39 whether, in the alternative, and as a condition of proceeding with any element of the claim, the Claimant should be ordered to pay a deposit.[7]The Further & Better Particulars of Claim [102], whilst providing further details of the claims, began by withdrawing some of Claimant’s claims and clarifying what claims she wished to take to trial. It said: Case Number: 1302785/2024 4 of 19 1. The Claimant no longer pursues claims of Age Discrimination (Direct, Indirect, or Harassment) Indirect Discrimination (Age or Disability). 2. The Claimant pursues claims of Direct Disability Discrimination and or Harassment on the Grounds of Disability.[8]On 17th December 2024 Employment Judge Dimbylow dismissed the Claimant’s claims of direct age discrimination, indirect age discrimination and age related harassment [128] on withdrawal by the Claimant. The indirect disability discrimination was not dismissed by that Judgment.
The Evidence
[9]I was provided with an agreed joint trial bundle which ran to 135 pages2 . It contained the following documents: 9.1. The pleadings and Case Management Orders of Employment Judge’s Gaskill and Dimbylow; 9.2. The withdrawal of all of the age discrimination claims and the indirect disability discrimination claim; 9.3. The Claimant’s further particulars of her claim and the Respondent’s amended Grounds of Resistance; 9.4. The Claimant’s impact statement; and, 9.5. The Claimant’s medical reports and GP records.[10]The Claimant gave her Impact Statement under oath and was cross examined by the Respondent’s Counsel.[11]In structuring this Judgment I have dealt with the disability questions first, then moved on to consider questions relating to the timing of the Claimant’s Claim Form and the strike out / deposit applications. 2 The hearing bundle for the July hearing had expanded to 181 pages. Case Number: 1302785/2024 5 of 19 Findings of Fact on Disability[12]I have not recited every fact in this case or sought to resolve every dispute between the parties. I have limited my analysis to the facts that were relevant to the Issues that I am tasked to resolve, which principally related to the Claimant’s disability status and the timings of her claims. I made the following findings of fact on the basis of the material before me, taking into account contemporaneous documents, where they exist and the conduct of those concerned at the time. The Tribunal resolved such conflicts of evidence as arose on the balance of probabilities.[13]Before turning to the medical facts in this case, it is useful to set out the relevant time over which I am considering disability. That time covers the period between November 2022 and September 2023. The key medical findings of fact are as follows:[14]The Claimant did not disclose any disability in her starter Health Questionnaire on 26th October 2022.[15]In a letter to the Tribunal dated 26th June 2024 [48] Ciaran Baxter, the Claimant’s father stated ‘since her teenage years Kayleigh suffered from depression and had been on medication for this during her teenage and adolescent years’ and ‘Kayleigh suffered from mental depression for circa 12 years, from the age of 15. She's been on medication for nearly all that time, principally the medicine of venlafaxine which is a prescribed drug to treat her depression’.[16]Medicolegal report of Dr Twomey dated 6th June 2024 [53]: ‘Relevant past medical history: N/A. 15th December 2023 she returned home and presented to our surgery in a very fragile mental state, anxious, panicky, suicidal. Hospital admission was discussed. She was not sleeping, not eating and the concentration was poor with no motivation. Started on Lexapro (an antidepressant) 10mg’. Case Number: 1302785/2024 6 of 19[17]On 24th June 2024 Barry Corkery, Counselling Therapist [51] reported ‘Ms Baxter first presented on 8 th January 2024 after experiencing a mental breakdown before Christmas 2023, having had a particularly difficult 2023 … the harassment, discrimination and humiliation she described in therapy brought up much distress and in my opinion Ms Baxter has been quite traumatised by these experiences. Today, the scars of this harrowing episode of her life are still present and it is to her credit that she has found the strength within herself to carry on with her life’.[18]On Dr Twomey’s report dated 16th July 2024 [57] which stated ‘On review of your medical files, it was on 3rd December 2014 that you were first treated for depression. Since this date, you were seen on numerous occasions by me and other professionals for treatment and management of the same.’[19]The Claimant’s GP records revealed the following: 19.1. Dr Afzal on 28th July 2022: ‘struggling to come off venlafaxine, was on for 10 years. Mood much better. On 37.5mg but when tries to reduce further gets dizzy / headaches’. 19.2. Dr Abdou 9th August 2023 [72]: ‘Stress at work. Not fit for work. Diagnosis Stress. Duration 9th August 2023 to 6th September 2023. Feel stressed and anxious. Her mood is low all the time now but improves if takes days off. Could not go to work today as felt very distressed’. 19.3. Dr Abdou 9th August 2023 [72]: ‘Just stopped her venlafaxine for depression and is not willing to get back on antidepressant. Described poor sleep. Episodes of crying outburst when thinks about events at work’. 19.4. Dr Ibrahim 31 August 2023 [71]: ‘Not fit for work. Diagnosis: Stress at work. Duration 31st August 2023 to 1st October 2023’. 19.5. Mr Matharu on 19th December 2023 [71]: ‘PHQ9 total score 20-27 (severe depression). GAD7 total score 15-21 (severe). Main difficulty identified as generalised anxiety disorder. On the PHQ9 which refers to the question ‘thoughts that you would be better off dead or hurting yourself in some way’. The score of 3, which means they experience these thoughts every day. They described feelings of hopelessness. No Case Number: 1302785/2024 7 of 19 way, not seeing a way out situation. Low confidence, low self-esteem. They've been neglecting their self-care as well’.[20]Finally, the Claimant gave the following evidence within her Impact Statement [99] in which she asserted that: 20.1. She suffered inability to sleep, panic attacks, low self-esteem, low mood, fatigue, heightened emotions, loss of confidence, particularly in the workplace and loss of appetite. 20.2. She had been prescribed Lexapro (10mg) between December 2014 and July 2019; venlafaxine (37.5mg) between July 2019 and November 2024; and Etalpro (15mg) between November 2024 and present. 20.3. She had difficulty with sleeping, household chores, personal hygiene, cooking and food preparation, exercise, social gatherings, self-esteem and hobbies. 20.4. She has been disabled by depression since 3rd December 2014.[21]The Impact Statement was written in the 3rd person, suggesting it was not written for her, by someone else, rather than her own personal account of the impact of her condition. The dates given of her medications were not support by the GP records, which indicate that she was able to come off anti-depressants all together in or around August 2023 and was restarted on Lexapro (10mg) in December 2023. The Law on Disability[22]The law on disability is as follows:[23]Section 6 of the Equality Act 2010 (EqA) states: (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and Case Number: 1302785/2024 8 of 19 (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.[24]Paragraph 2 of Schedule 1 of the EqA states:(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.[25]The following principles can be taken from the legal authorities: 25.1. Tribunals should approach the test for disability in a step by step fashion and focus on the Claimant’s abilities and not their behaviour at work: Goodwin v Post Office [1999] IRLR 4. 25.2. Section 212(1) of the EqA states that ‘in this Act … substantial means more than minor or trivial’. Further guidance states that, ‘the requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people. Account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment; or because of loss of energy or motivation’. If an impairment would be likely to have a substantial adverse effect but for measures taken to correct it, it is to be treated as having that effect: Elloitt v Dorset County Council [2021] UKEAT 0197. 25.3. The word ‘likely’ means ‘could well happen’ rather than ‘more likely than not’: Boyle v SCA Packaging Ltd [2009] ICR 1056, HL. 25.4. Normal day to day activities’ are activities that are carried out by most men and women on a fairly regular and frequent basis such as walking, driving, typing, and forming social relationships. Case Number: 1302785/2024 9 of 19 25.5. An impairment is ‘long term’ is it has lasted for 12 months, is likely to last for 12 months or for the rest of the person’s life. If it has ceased to have that effect but is likely to recur then it is treated as long term. 25.6. In cases concerning a mental impairment there is a legitimate distinction to be drawn between a case where a person suffers from low mood and anxiety due to clinical depression (which would amount to an impairment) and where the same symptoms were a reaction to an adverse life event, which would not amount to an impairment: J v DLA Piper UK LLP [2010] IRLR 936. Whilst it was recognised that the distinction could be difficult to draw, and often blurred, the EAT were of the opinion that in practice due to the requirement that the impairment have a long term effect, it would not cause real problems in the context of determining whether a person is disabled. 25.7. The relevant time to consider whether a person was disabled is the date of the alleged discrimination and not at the Employment Tribunal: McDougall v Richmond Adult Community College [2008] IRLR 227. 25.8. For any claim to succeed, the burden is on the Claimant to show, on the balance of probabilities, something in the nature of an 'impairment' whether it is a mental or physical condition. It is not necessary to consider how an impairment is caused: what must be determined is its effect. 25.9. The existence or not of a mental impairment is very much a matter for qualified and informed medical opinion … The dangers of the tribunal forming a view on “mental impairment” from the way the Claimant gives evidence on the day cannot be overstated. Aside from the risk of undetected, or suspected but non-existent, play-acting by the claimant and that the date of the hearing itself will seldom be a date as at which the presence of impairment will need to be proved or disproved, tribunal members will need to remind themselves that few mental illnesses are Case Number: 1302785/2024 10 of 19 such that their symptoms are obvious all the time and that they have no training or, as is likely, expertise, in the detection of real or simulated psychiatric disorders: Morgan v Staffordshire University [2002] IRLR 190 EAT. Medical Conclusions[26]The Claimant had been on prescribed anti-depressant medication for 10 years, having been first diagnosed in 2014. She was feeling well enough to come off that medication (or try to) in July 2022, some 4 months prior to commencing employment with the Respondent, but had struggled due to side effects of getting dizzy and/or headaches. She had managed to come off the drug completely by August 2023. This leads me to conclude that for a period after July 2022 the Claimant considered herself sufficiently free from the adverse effects of depression that she could seek to come off the medication that she had been taking for it.[27]There are 3 pieces of evidence that point to depression being medicated over a longer period prior to the Claimant’s employment with the Respondent. They are: 27.1. Her father’s reference to ‘Kayleigh suffered from mental depression for circa 12 years, from the age of 15. She's been on medication for nearly all that time’. This was contained in a Claim document and was not given under oath. That said, I accept it as it is consistent with other evidence, below; 27.2. Dr Twomey’s report dated 16th July 2024 [57] which stated ‘On review of your medical files, it was on 3rd December 2014 that you were first treated for depression. Since this date, you were seen on numerous occasions by me and other professionals for treatment and management of the same.’ Case Number: 1302785/2024 11 of 19 27.3. Dr Afzal on 28th July 2022: ‘struggling to come off venlafaxine, was on for 10 years. Mood much better. On 37.5mg but when tries to reduce further gets dizzy / headaches’.[28]The above indicates that the Claimant, from approximately 2014 to July 2022, was so affected by Depression that she seen on numerous occasions by medical health professionals and prescribed anti-depressant medication for that entire period. The Claimant has produced little direct evidence of the impact that her depression had on her during the 2014 to 2023 period. However, and on the balance of probabilities, I infer from the evidence above that the condition did have a substantial adverse impact on her day to day abilities during that period. This can be safely inferred because(i) the Claimant would not seek medical intervention if the condition had no adverse impact and(ii) the medical professionals would not have prescribed anti-depressant medication to the Claimant for such a long time unless they agreed.[29]The Claimant was signed off work due to stress at work on 31st August 2023. She remained signed off for the rest of her employment with the Respondent.[30]The Claimant suffered a mental breakdown on 13th December 2023, some three months after her employment ended on 21st September 2023. The medical evidence (in particular the PHQ9 and GAD7 test results) that the Claimant had become disabled by depression from December 2013 is overwhelming and I would have no hesitation in concluding that from December 2023 the Claimant was disabled by the mental impairment of depression.[31]The issue for me is whether she has been so disabled since 2014 when she first sought medical intervention and was first placed on anti-depressant medication and whether she was disabled by the condition during the material time, namely November 2022 to September 2023. I consider that the account of the impact that the Claimant’s depression has had on her, as set out in her impact statement is describing how she is now, or at the very least, how she has been since December 2023. I do not consider it to be an account of the impact on the Claimant between November 2022 and September 2023. Case Number: 1302785/2024 12 of 19[32]During the material time the Claimant was getting better. However, the medical evidence points to a relapse, in all likelihood triggered by the Claimant’s perceived treatment at work (refer to Dr Abdou’s GP record entries on 9th August 2023, set out above). There appears to have been a welcome hiatus in the Claimant’s condition from July 2022 until August 2023. From that point onwards however there was a recurrence in her condition, which by December 2023 (with increasing effect from August 2023) had disabled her.[33]In the circumstances I conclude that the Claimant was disabled at the material time from depression.[34]I should stress that this Judgment just relates to the question of disability. I have made no findings of fact or drawn any conclusions on the Respondent’s knowledge of any disability, at any particular time. No or Little Reasonable Prospects of Success.[35]I turn now to the Respondent’s applications for her claim to be struck out on the grounds that it has no reasonable prospect of success or subject to a deposit order on the grounds that the claim has little reasonable prospect of success.[36]In both scenarios (strike out and deposit) the Respondent’s case is put on the following two bases: 36.1. that(i) the Claimant has issued her claims out of time,(ii) there is no continuing act of discrimination that is or can be relied on, and(iii) it would not be just and equitable to extend time in all of the circumstances of this case; 36.2. that on the substantive merits of the Claimant’s claim it can be demonstrated to have no or little reasonable prospects of success. Case Number: 1302785/2024 13 of 19 Strike Out / Deposit Orders[37]I turn now to the relevant law on striking out or seeking a deposit order.[38]Galilee v The Commissioner of the Police of the Metropolis [2016] UKEAT/0207/16 (paragraphs 107-108) support of the proposition that where there are issues of either a continuing act or a just and equitable extension, such matters should be left for the final hearing, after all of the evidence has been heard. That said, paragraph 96 of Galilee supports of a proposition that if a prima facie case ‘continuing act’ is not made out it may well be appropriate to determine the time point at an interlocutory stage in the proceedings.[39]The power to strike out should only be exercised in rare circumstances: Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly [2012] IRLR 755, at para 30);[40]Cases should not, as a general principle, be struck out on this ground when the central facts are in dispute: North Glamorgan NHS Trust v Ezsias [2007] IRLR 603);[41]The correct approach for a tribunal to adopt is to take the Claimant's case at its highest, as it is set out in the claim, unless contradicted by plainly inconsistent documents: Ukegheson v London Borough of Haringey [2015] ICR 1285, EAT, at para 21);[42]As a general principle, discrimination cases should not be struck out except in the very clearest circumstances: Anyanwu v South Bank Students' Union [2001] IRLR 305, HL. That said, the above guidance is not to be taken as amounting to a fetter on the tribunals' discretion: Jaffrey v Department of the Environment, Transport and the Regions [2002] IRLR 688 at para 41, EAT). Whilst striking out discrimination claims will be rare, where there is a time bar to jurisdiction, or where there is no more than an assertion of a difference of treatment and a difference of protected characteristic, strike out may well be appropriate: Chandhok v Tirkey [2015] IRLR 195, EAT, paras 19 & 20 (Langstaff J). Case Number: 1302785/2024 14 of 19 Conclusions on strike out / deposit order on Time grounds.[43]The time over which the Claimant asserts that she was subject to discrimination covers the period from 22nd March 2023 until 9 th August 2023 [15-16]. She was signed off work on 9 th August 2023 [81] and did not return to work again, prior to her resignation, which was given on notice on 24th August 2023, being effective on 21 st September 2023.[44]It is not necessary for me to determine whether the asserted acts of discrimination between March and August 2023 were part of the same single act of discrimination or were separate individual acts. For these purposes I shall take the Claimant’s case at its highest and proceed on the basis that they were all part of a single act. What is clear is that the ‘last act’ of any single continuing act of discrimination must have occurred on 9th August, as the Claimant was not in the business after that date and no further acts are relied on after that date.[45]As such, for those incidents to have been presented in time, the Claimant would have had to have notified ACAS of a dispute by 8th November 2023 and then issued her Claim Form with 1 month of the issuing of the ACAS Early Conciliation certificate. She did not notify ACAS of a dispute until 7th December 2023 [1]. This had the effect that her ACAS notification was made one month out of time. Her Claim Form was not presented until 15th February 2024 [2].[46]From this I am able to reach the following conclusions: 46.1. The Claimant cannot avail herself of any ‘continuing act’ point, pursuant to s123(3)(a) EqA; 46.2. All incidents of discrimination occurring before 8th September 2023 (ie three months less one day before the ACAS notification on 7 th December 2023) are out of time; 46.3. The Claimant’s claims were presented 4 weeks out of time, as the last act of discrimination relied on is said to have occurred on 9th August 2023. Case Number: 1302785/2024 15 of 19[47]I now turn to consider: 47.1. Whether to determine the question of extending time for such period as the Tribunal thinks just and equitable, pursuant to s123(1)(b) EqA now, or to leave that issue to the trial Judge when all of the relevant evidence has been heard; or, 47.2. If I elect to determine it now, whether time should be extended on just and equitable grounds; 47.3. Whether, in light of (47.1) and (47.2) the claims should be struck out or subject to a deposit order on ‘time’ grounds.[48]In my Judgment, as stated, the Claimant’s Claim was presented out of time, in circumstances in which she cannot rely on any ‘continuing act’ point. ACAS should have been notified of a dispute by 8 th November 2023. They were not so notified until 7th December 2023 (about 1 week before the Claimant’s mental health breakdown on 13th December 2023). In evidence (cross examination) the Claimant confirmed the following matters: 48.1. That from 9th August 2023 she suffered low mood and that she did get counselling at that time; 48.2. She had a lot of issues and did not have the courage to talk about it; 48.3. Her dad helped her draft the Claim Form in February 2024; 48.4. A lawyer had assisted with her impact statement, filed on 2nd December 2024 but not her Claim Form; 48.5. She and her father had been advised by ACAS to submit a grievance internally prior to proceeding with her claim, which she did on 16th October 2023;[49]Had she formally notified ACAS of a dispute at that time, and then followed the Early Conciliation process her Claim Form would, in all likelihood, have been presented in time. Her grievance was rejected on 31st October 2023, still with 1 week to go until ACAS had to be notified, on 8th November 2023. ACAS were formally notified on 7 th December 2023, 4 weeks late. Case Number: 1302785/2024 16 of 19[50]Whilst I have been provided with some evidence relevant to the question of a just and equitable extension of time, I do not consider this has been fully explored at this stage. In my judgment it would not be appropriate to determine this point, at this stage. Issues such as the reasons for the delay, the impact on the cogency of evidence and the steps taken to get advice cannot fairly be determined at this stage. They are, in my opinion, matters for the Trial Judge after all of the evidence has been heard.[51]In the circumstances the Respondent’s applications for a Strike out or a Deposit Order on the grounds that it would not be just and equitable to extend time are refused at this point in time. Conclusions on Strike Out / Deposit Order on Substantive Merits[52]By her Claim Form and Further and Better Particulars the Claimant relies on the following factual allegations against the Respondent. At this stage I am to take the Claimant’s case at its highest and I am not to undertake a mini-trial of the facts. I am to proceed on the basis that the Claimant will establish the following allegations at trial: 52.1. After eating a sandwich at her desk for 10 minutes, on 22nd March 2023 Abigail Brooks told the Claimant that she could not leave, she had taken her lunch and should continue working, exacerbating her depression; 52.2. On 19th July 2023 after the Claimant had reached out for support, Abigail Brooks refused to support her and told her that she wasn’t bringing in enough money into the company to have additional support, exacerbating her depression; 52.3. On 25th July 2023 Abigail Brooks took the Claimant’s name off a new account and assigned it to Dean Holmes, telling the Claimant she was no longer on the account, exacerbating her depression; 52.4. In summer 2023, Abigail Brooks cancelled her (Ms Brooks) attendance at a client meeting with Hofer Powertain Products on the day of the Case Number: 1302785/2024 17 of 19 meeting, which had been arranged 6 weeks in advance, leaving the Claimant to attend alone, exacerbating her depression; 52.5. On 8th August 2023 the Claimant told Abigail Brooks that she was feeling unwell for depression and was waiting on a GP appointment. The following day Ms Brooks told the team that the Claimant was being disruptive; 52.6. On 9th August 2023 (first day of sick leave) Ms Brooks repeatedly asked the Claimant to say what was wrong with her in order to embarrass her into discussing her depression; 52.7. In July / August 2023 Abigail Brooks refused to let the Claimant attend a meeting in person to sign up a client, then passed the account to Habib who was allowed an in person meeting and did sign the client up; 52.8. In July / August 2023 Abigail Brooks forced the Claimant to eat food that she did not want to eat as a ‘forfeit’; 52.9. In July / August 2023 Abigail Brooks forced the Claimant to ring a bell and call out the time every hour as a ‘forfeit’; 52.10. In July / August 2023 Abigail Brooks attempted to force the Claimant to stand up and tell a joke to the team as a ‘forfeit’; 52.11. In July / August 2023 Abigail Brooks forced the Claimant to hand over a sales lead to a colleague; 52.12. In July / August 2023 Abigail Brooks forced the Claimant to stay in the office and be the last to leave, letting all the other cars out at the exit barrier; and, 52.13. In July / August 2023 Abigail Brooks required the Claimant to be the first to arrive and greet everyone else on arrival.[53]The Claimant asserts that the above matters (which I, for the purposes of these applications, must assume occurred as the Claimant say) were either: 53.1. Examples of unwanted conduct, related to her disability, which had the purpose or effect of harassing her (as defined by s26(1)(b)(i-ii) EqA); or, 53.2. Examples of less favourable treatment because of her disability, than the Respondent would treat others, in which a hypothetical comparator is relied on (as defined by s13(1) EqA). Case Number: 1302785/2024 18 of 19[54]The Respondent relies on the Claimant’s failure, in her grievance (which formed the basis for her Particulars of Claim) that the Claimant did not describe the grievance as a disability grievance. She was simply unhappy with the workplace and has tried, after the event, to add a legal label to those complaints. The Respondent denies knowledge of the Claimant’s disability and relies on the Claimant’s failure to explain how the events she complains of have anything to do with depression. Reliance was also placed on the Claimant’s failure, for some of her examples of conduct, to complete the ‘related to disability’ column.[55]Each allegation is relied on as an incidence of harassment. This would require the Claimant to establish the Ms Brooks’ conduct was related to the Claimant’s disability, which it could be if her depression was a factor in the Claimant’s performance, that it was unwanted and that it had either the purpose or effect of harassing her. The ‘forfeit’ allegations (the Respondent admits that staff were asked to undertake forfeits) it seems to me are likely to be considering harassing as defined in s26(1)(b) EqA.[56]In the circumstances, and applying Anyanwu, I do not consider that the harassment allegations can fairly be said to have no or little reasonable prospects of success. The applications for strike out or deposit orders in respect of them are refused.[57]The direct discrimination claims are based on a hypothetical comparator, namely a Road Account Manager that did not suffer from depression, would not have been treated as the Claimant was. The matters relied on are all capable of amounting to unfavourable treatment of the Claimant. It is too early to reach any conclusions on the Respondent’s reasons for its treatment of the Claimant. The Claimant will assert that Ms Brooks did not like her because she was disabled by depression and/or did not want a depressed employee on her team. Applying Anyanwu I do not feel able to conclude that the Claimant’s claims of direct discrimination have no or little reasonable prospects of success. This is not such a case that could be described having no or little prospects in the very clearest of circumstances, as the law requires. Case Number: 1302785/2024 19 of 19[58]In the circumstances the application to strike out or require a deposit order, on the grounds that at this stage the substantive prospects of the claims can be said to have no or little reasonable prospects of success is rejected. Judgment delivered by