Ms Connolly v Scrivens Opticians and Hearing Care Ltd: 1304929/2021
EMPLOYMENT TRIBUNALS
Case No 1304929/2021
Between
In personClaimantMs. Whelan, ConsultantRespondent
Before
Employment Judge WedderspoonIn person for claimantDate 4 July 2023
JUDGMENT
[1]The claimant was disabled at the relevant time within the meaning of section 6 of the Equality Act 2010.
REASONS
[1]The respondent requested written reasons at the end of the open preliminary hearing. These are the reasons.
Background
[2]The claimant was employed by the respondent from 14 March 2016 until her resignation on 16 September 2021. The purpose of the Preliminary hearing was to determine whether the claimant met the definition of disability pursuant to section 6 of the Equality Act 2010 for the period of 21 March 2021 until 16 September 2021.
The issues
[3]The issues to be resolved at this open preliminary hearing are as follows :- 2.1D Did the claimant have a mental impairment namely a generalised anxiety and depressive disorder ? 2.2 If so did that impairment have a substantial adverse effect on the claimant’s ability to carry out normal day to day activities ? 2.3 If so, was that effect long term? In particular when did it start; and 2.3.1 Had it lasted at least 12 months? 2.3.2Was the effect likely to last at least 12 months?[4]The Respondent disputed the disability of generalised anxiety and depressive disorder relying upon the fact that the claimant did not receive this formal diagnosis until 27 September 2021.
The Hearing
[5]The claimant relied upon a section 6 disability impact witness statement along with a medical report from her G.P., Dr. M Ahmad dated 23 May 2022. Mr. Bosock the claimant’s partner also gave evidence. The Tribunal was provided with an agreed bundle of 71 pages.[6]The Tribunal found the claimant to be a credible witness who did not exaggerate. Mr. Bostock who is not a medical expert, could only provide incidental evidence.
Facts
[7]From 21 March 2021 until her resignation on 16 September 2021 the claimant worked as a frame dept manager. The respondent operates a chain of branches offering optical and hearing aid services to customers.[8]The claimant started suffering issues with her mental health from 2017 when she was diagnosed with anxiety. She was prescribed 50mg sertraline and in August 2018 this was increased to 100mg. From 15 November 2018 she was prescribed 200mgthe dosage. She has reviews of her medication every 3 to 6 months. She has remained on this medication since.[9]Mr. Ahmad in his medical report identified two diagnoses Anxiety from 14 November 2017 and mixed anxiety and depressive disorder since 27 September 2021. He states “She was continuing to take her sertraline and she had a medication review on 10 September 2021 and it was decided to continue her anxiety medication. On 27 September 2021 Miss Connolly presented to us again with worsening symptoms which were mostly related with her work. She mentioned that her symptoms were not getting better she was having poor sleep she was over arising and she was having suicidal thoughts when in her previous job but she mentioned that she will never act on them. Miss. Connolly said that she was having suicidal thoughts because of her stress, depression and anxiety which was moistly related with her work. She mentioned that at the time she was overeating and she lives with her partner. We discussed Mirtzapine a low dose which will help her sleep and depression and she was explained that it was a sedative anti-depressant Her dose of sertraline was reduced to 100mg once a day with mirtzapine 15 mg a night. Her anxiety GAD score was reported 16/21 and her PHQ9 score for depression was 20/27 which puts her in the bracket of moderate to severe depression. She was reviewed on 22 March 2022 and the mediation was maintained. He last prescription of Mirtzapine 15 mg was on 26 October 2021whic stopped at the end do November 2021. The claimant continues to take Sertraline 200 mg a day for her anxiety and depression”[10]In 2020 the claimant underwent some private counselling. She was not in a financial position to fiancé the sessions in 2021.[11]The clamant complains she was unsupported in the role from March 2021 and determined to resign on 16 September 2021. Her case is that in the absence of her medication her function would be impaired by reason of panic attacks, risk of suicidal ideation, inability to get out of bed and go to work.[12]In respect of her contact with the GP in 2021, the claimant said she had a medication review on 10 September 2021. Her evidence about this review is that the GP did not consider it appropriate to change her medication because she would need to be weaned off the medication to change for another. Instead, she was kept on sertraline medication. She sought a GP consultation but could not get an appointment until 27 September 2021.[13]On 27 September 2021 the claimant had a telephone consultation with her GP; the Tribunal accepted the claimant’s evidence that this was the first GP consultation. The GP at this stage made a formal diagnosis of mixed anxiety and depression. The Tribunal accepts the claimant when she says that her health began to deteriorate from March 2021. Her symptoms were as described on 27 September as set out in the G.P. medical report. SUBMISSIONS[14]The Tribunal invited the respondent to make submissions first as an experienced employment consultant to set out her case for the claimant to respondent but provided the respondent with a right to reply to the claimant’s submissions.[15]Ms. Whelan on behalf of the respondent submitted that the claimant had the burden of establishing that she fell within s. 6 of the Equality Act 2010 and that she had failed to discharge that burden. The claimant relied at the preliminary hearing upon the condition of mixed anxiety and depressive disorder (a recognised psychiatric illness); this was only diagnosed on 27 September 2021. The claimant could not establish she suffered from this disability during the material dates of 21 March to 16 September 2021.[16]The respondent directed the Tribunal to consider what happened on 10 September when the claimant attended her GP; the notes states and the medication was maintained. It was not until 27 September that a diagnosis (11 days after the claimant’s resignation from her employment). There is no evidence before the tribunal save for the claimant’s assertion that had she got a G.P. appointment sooner than 27 September 2021 she would have been diagnosed sooner. On 10 September 2021 the GP report is really saying that the claimant’s condition was stable and unchanged and her medication was not changed.[17]The respondent did not dispute that the claimant suffered with anxiety since 2017. The respondent also noted that the claimant did not have any counselling in 2021. There was a gap in the medical report. Its unclear what occurred to the claimant between 16 September 2021, the date of her resignation and 27 September 2021, the date of the diagnosis.[18]E.J. Wedderspoon asked the respondent to comment on the case of Nissa. The respondent submitted that this is not a case here with no start date of diagnosis; there is a diagnosis of mixed anxiety and depressive state on 27 September and not before so that the claimant cannot establish she suffered from that condition during the material period.[19]The claimant submitted she has suffered from anxiety since 2017 and has been medicated for this condition since. On 10 September 2021 she was experiencing symptoms of additional depression but this appointment was a medication review only. She was unable to get a consultation with her GP until 27 September 2021. Her mental condition had been worsening before her resignation on 16 September 2021.[20]The claimant submitted that she had always suffered from anxiety. Depression was added to the diagnosis on 27 September 2021. Her anxiety condition is long term and she is on the maximum dosage of sertraline.[21]In response the respondent submitted the claimant is mentioning two conditions her but she only relies upon one from the preliminary hearing namely generalised anxiety and depressive disorder which she can not establish is the disability at the material tie for the purposes of section 6 of the Equality Act 2010
The Law
[22]For the purposes of section 6 of the Equality Act 2010 (EqA) a person is said to have a disability if they meet the following definition : “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.”[23]The burden of proof lies with the claimant to prove that he is a disabled person in accordance with that definition.[24]The term “substantial” is defined at section 212 as “more than minor or trivial”. Normal day to day activities are things people do on regular basis including shopping, reading and writing, having a conversation, getting washed and dressed preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, socialising (see D2 to D9 of the Guidance on Matters to be Taken into Account in Determining Questions Relating to the Definition of Disability (2011).[25]Further clarity is provided at Schedule 1 which explains at paragraph 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.”[26]Likely should be interpreted as meaning “it could well happen” rather than it is more probable than not it will happen; see SCA Packaging Limited v Boyle (2009) ICR 1056. In the case of Patel v Metropolitan Borough Council (2010) IRLR 280 the EAT stated that the issue of whether the effect of an impairment is long term may be determined retrospectively or prospectively. A claimant must meet the definition of disability as at the date of the alleged discrimination.[27]In the case of Nissa v Waverly Education Foundation Limited UKEAT/0135/18 a warning was given not to concentrate solely on a diagnosis which will be relevant but not determinative. HHJ Eady stated “the correct question was to consider what the effects of the impairments were at the material time and to consider whether there was information before the ET which showed that viewed at that time it could well happen that the effects of the impairments would last for more than 12 months.”[28]Formerly there was a requirement that a mental illness had to be clinically well recognised illness before it could be a mental impairment but that requirement was repealed as from 5 December 2005.[29]As to the effect of medical treatment, paragraph 5 provides :- (1)An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day to day to day activities if- (a)m measures are being taken to treat or correct it and (b)but for that it would be likely to have that effect. (2)Measures include in particular medical treatment..”[30]Paragraph 12 of Schedule 1 provides that a Tribunal must take into account such guidance as it thinks is relevant in determining whether a person is disabled. Such guidance which is relevant is that which is produced by the government’s office for disability issues entitled “Guidance on matters to be taken into Account in Determining Questions Relating to the Definition of Disability” The guidance should not be taken too literally and used as a check list (see Leonard v Southern Derbyshire Chamber of Commerce (2001) IRLR 19).[31]Some guidance is given in paragraph B1 as to the meaning of “Substantial adverse effects” namely “The requirement that an adverse effect on normal day to day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences and ability which may exist amongst people. A substantial effect is one that is more than a minor or trivial effect.”
Conclusions
[32]The Tribunal takes into account the evidence from the claimant, her partner which was incidental, the medical material, the Equality Act Guidance on the definition of disability and submissions. The Equal Treatment Bench Book reminds the Tribunal as to the disadvantages a litigant in person may face in litigation (in particular pursuant to section 26 page 19 that litigants in person may make basis errors in the preparation of their cases and may fail to identify salient points in their statement of case).[33]The starting point is that the claimant has the burden of establishing that she met the definition of disability at the relevant time (21 March 2021 to 16 September 2021) in accordance with section 6 of the Equality Act 2010. Before Employment Judge Jones the claimant identified her disability as “mixed anxiety and depressive disorder” but the claimant submitted today she has suffered from anxiety since 2017; that fact is not disputed by this respondent.[34]In my Judgement, the claimant has suffered from a long-term mental impairment namely a condition of anxiety. This has been evidenced by the claimant’s oral testimony and the medical material showing a diagnosis of anxiety state in 2017 on going which has been continuously medicated by sertraline. The claimant has taken the maximin dosage of 200 mg for a significant period of time for this condition. The respondent does not dispute that the claimant has suffered long term anxiety.[35]In the absence of this medication the claimant’s functioning would be significantly impaired. The claimant’s evidence, which was accepted by the Tribunal, that in the absence of sertraline the claimant would suffer panic attacks, would be unable to get out of bed or attend work and/or suffer from suicidal ideation. The impairment of anxiety has a substantial and long term and adverse effect of the claimant’s ability to carry out normal day to day activities.[36]In respect of the diagnosis of mixed anxiety and depressive illness; this diagnosis was made on 27 September 2021. The claimant described an increase of symptoms from March 2021 and she as aware that her mental health was declining; the Tribunal accepts this evidence.[37]However, there is insufficient material to establish that the claimant suffered from the particular mental impairment of generalised anxiety and depressive disorder for the period of 21 March to 16 September 2021. The claimant gave evidence that she felt her condition was deteriorating. There was a review of her medication on 10 September her dosage and mediation were maintained. She had a GP consultation on 27 September when the diagnosis was made. Due to the lack of medical evidence on this point namely whether indeed the claimant was suffering from this particular diagnosis from 21 March to 16 September 2021 the Tribunal is not persuaded that this particular mental impairment of both generalised anxiety and depressive disorder was present for that period.[38]The respondent’s case is that the claimant has not relied upon the diagnosis of anxiety but asserted a different condition namely mixed anxiety and depressive disorder at the preliminary hearing. The respondent submits that if the claimant cannot establish she had this particular condition during the relevant period she cannot pursue a disability claim. On the basis that the diagnosis was only made on 27 September 2021 the respondent submits the claimant cannot succeed.[39]The Tribunal rejects the submission of the respondent.[40]Section 6 of the Equality Act 2010 states a person has a disability if they have a physical or mental impairment. The Tribunal determines that it is unnecessary for a claimant to assert a specific diagnosis or classification of a condition pursuant to section 6 of the Equality Act 2010; it is sufficient for a claimant to establish they have a “mental impairment”.[41]The Tribunal takes into account the comments of HHJ Eady QC in the Nissa case when it was stated :“the correct question was to consider what the effects of the impairments were at the material time.”[42]There is no longer a requirement that a mental impairment has to be a “recognised mental illness” following a change in the law; the Tribunal is guided to consider the effects of the impairment. Furthermore, the Equality Act guidance Definition of disability refers to the fact at paragraph A3 that the impairment does not have to be the result of an illness. The focus of the Tribunal in determining whether a claimant falls into section 6 of the Equality Act 2010 is to consider the effects of the impairment however categorised.[43]The claimant described to the Tribunal the effects of anxiety as set out above which she has suffered from 2017 and continue; and took into account the claimant’s state in the absence of taking her medication. The Tribunal finds that in the absence of her medication the claimant’s function would be impaired by reason of panic attacks, risk of suicidal ideation, inability to get out of bed and go to work. These are accepted by the Tribunal. The effects had a more than minor adverse effect on her normal day to day activities.[44]In the circumstances the fact that the claimant identified the classification of her mental impairment at a preliminary hearing as generalised anxiety and depressive disorder does not prevent her from relying upon her long term and accepted (by the respondent) condition of anxiety at today’s hearing in order to satisfy the definition pursuant to section 6.[45]The claimant is a litigant in person. As recognised by the ETBB litigants in person do face disadvantages in a litigious process. The claimant may well not have recognised the significance placed by the respondent upon the fact that the condition identified was not diagnosed until 27 September 2021 after her employment ended. The respondent is not disadvantaged since it was aware from the medical material and evidence that the claimant had a long standing anxiety condition and in fact accepts that the claimant had such a condition.[46]“Mental impairment” pursuant to the Act is a general category where the focus of the Tribunal must be on the effects. Mental impairment does not even have to be caused by an illness (see the Guidance on the definition). It would make a nonsense of the statutory provisions that if the claimant who has a long standing anxiety condition which meets the definition pursuant to section 6 is not deemed by the Tribunal to be disabled at the material time (despite suffering from a long standing condition related to a new diagnosis) because she identified at a preliminary hearing the newest related diagnosis. The purpose of the provisions must be to protect individuals with mental impairments however categorised.[47]The Tribunal concludes that the claimant was a disabled person at the relevant time by reason of a mental impairment namely anxiety. This is sufficient to satisfy section 6 of the Equality Act 2010 for the claimant to proceed with her disability discrimination claim.
Conclusion
[48]For us to reach the conclusion that the claimant has been subjected to direct disability discrimination, we had to determine whether the respondent subjected her the treatment complained of and then, if necessary, go on to decide whether any of this was “less favourable treatment”, (i.e., did the respondent treat the claimant as alleged less favourably than it treated or would have treated others (“comparators”) in not materially different circumstances). We then had to decide whether any such less favourable treatment was because of the claimant’s disability or disability more generally. We applied the two-stage burden of proof referred to above. We first considered whether the claimant had proved facts from which, if unexplained, we could conclude that the treatment was because of disability. The next stage would be to consider whether the respondent had proved that the treatment was in no sense whatsoever because disability.[49]There was only one allegation of direct disability discrimination, and this was that shown at paragraph 4.2.1, namely that In a conversation which took place in mid to late August 2021 shortly after HW had commenced in her role, MK made comments to the claimant that she was “stressing him out” and that she was “paranoid”. We refer to our findings of fact at paragraph 9.35 above. This allegation was not made out on the facts as we preferred MK’s version of how this conversation took place. In any event, at this time, we were satisfied that MK was entirely unaware of the claimant’s disability. Our findings of fact at paragraphs 9.13, 9.35, 9.37 and 9.38 were that the claimant never mentioned her mental health condition to MK despite her alleging that she had done so. Although the claimant had mentioned the matter to her previous manager, DTM, the claimant was aware that this had not been passed on to anyone else in management (paragraph 9.3 above). We concluded that unlike the claimant suggests, it was not reasonable for him to conclude that her changes in behaviour should have alerted him to the fact that she was suffering from mental health issues. MK’s actions in agreeing with the claimant’s questions were not because of her disability as he was entirely unaware, she was disabled. The claimant has not proved primary facts from which the Tribunal could conclude that any treatment was because of disability, we do not find that this shifts the burden of proof to explain the reason for it. This sole allegation of direct disability discrimination is accordingly dismissed. Discrimination arising from disability.[50]We then went on to consider the s15 EQA claim of discrimination arising from disability. We started by identifying what was the something arising from disability that the claimant relied upon as being the reason for unfavourable treatment. The claimant contended that the matters at paragraph5.2.1 and5.2.2 of the List of Issues arose from her disability, namely that: 50.1. her Anxiety caused her to overthink and overanalyse matters that were not explained to her. 50.2. her Anxiety meant she found it more difficult to cope with excessive workloads/unreasonable deadlines/the demands of her role.[51]However as submitted by the respondent, the claimant did not adduce any evidence to show that the matters she asserted arose from her disability in fact did so. The Disability Judgment referred to the claimant’s medical history and that without her medication she would suffer severe symptoms. However, there was no reference to whether the claimant’s disability had the effects at work that the claimant relies upon. At the claimant’s first performance review meeting on 18 May 2021, MK himself notes that the claimant had a “tendency to overthink situations” (see paragraph 9.14). However, there is still no evidence that this was linked to disability. Therefore, we are unable to conclude in the absence of any evidence that these issues were matters arising from the claimant’s disability.[52]Therefore, having concluded that the claimant has not shown that the matters relied upon were matters arising from the claimant’s disability, we do not strictly need to go on to consider the next stage i.e., to consider whether the unfavourable treatment was caused by these matters. However, we have gone on to consider in general terms the allegations made. The claimant made three allegations of unfavourable treatment set out at paragraphs 5.1.1-5.1.3 of the List of Issues. She firstly alleged that MK criticised her performance and appeared to rely on the comments regarding deadlines made by MK at the probationary review meeting held on 6 September 2021 (see paragraph 9.45 above). We conclude that MK did make some constructive criticism of the claimant in this meeting. However, the criticism here was not in fact related to the matters the claimant says are matters arising from disability at all. This was a comment about the claimant needing to ensure that documentation was kept up to date so that it could be accessed when requested. This claim would also have failed on this basis in any event.[53]The claimant further complains that MK failed to acknowledge her concerns about her mental health. We refer to our findings as set out in our conclusions at paragraph 49 above that the claimant did not mention any matters of mental health to MK until he received her e mail of 10 September 2021 (see paragraph 9.48). When this was mentioned, MK responded promptly by writing to the claimant offering support (paragraph 9.50). Therefore, this allegation of unfavourable treatment would have failed on the facts in any event.[54]The final act of unfavourable treatment relates to an allegation of failing to offer the claimant support to perform the role of Frames Department Manager. We refer to our findings of fact at paragraphs 9.10 to 9.12. There was support offered from MK although this was informal in nature and there was a mismatch of expectations with the claimant expecting a much more structured and organized training and development plan. Nonetheless we do not conclude that there was a failure to provide support.[55]The remaining issue at paragraphs 5.6 (and 6.1) of the List of Issues is therefore whether the respondent knew of the claimant’s disability is less relevant given our conclusions above that the matters relied upon have not been shown to be matters arising. We refer to our conclusions at paragraph 49 above as to MK’s knowledge of the claimant’s mental health condition and we also conclude that at the time of the alleged discrimination none of the current management of the respondent had the necessary knowledge, actual or constructive. DTM was aware of the claimant having mental health issues at an earlier stage, but she did not communicate this information to anyone else at the respondent. In addition, whilst DTM was aware of a mental health condition, we were unable to find that even she had the required knowledge of all the aspects of the definition of disability as set out in section 6 EQA. For these reasons, we were not satisfied that what DTM was aware of imparted the sufficient actual or constructive knowledge of disability to the respondent as an organisation should this have been a determinative factor.[56]Accordingly, all the claimant’s complaints made under section 15 EQA are not well founded and are dismissed. Reasonable Adjustments Claim[57]When looking at the claimant’s complaint under sections 20 and 21 EQA, we firstly refer to our conclusions at paragraph 55 that there was insufficient knowledge of disability, either actual or constructive at the time of the alleged discrimination. This in effect brings an end to the complaint but we nevertheless went on to consider the other aspects.[58]We were required to look at whether any of the PCPs identified and relied on by the claimant were applied to her and, if so, when this took place. We then had to consider whether any such PCP applied put her at a substantial disadvantage compared to non-disabled people (and what that disadvantage was), considering the appropriate comparator. We then would be required to look at the whether the respondent knew that the claimant was placed at this disadvantage at the relevant time. We finally had to consider what adjustments would have been reasonable to make to avoid any relevant disadvantage.[59]The first PCP alleged at paragraph 6.2.1 of the List of Issues is the respondent’s decision to introduce the new role of Product Manager within its structure. This is a decision taken by the respondent, but we were unable to conclude that this met the requirements of being a provision, criteria or practice considering the guidance in the caselaw above in particular the guidance set out in the authorities of Ishola and Hendricks (above). This was a one off decision, rather than a practice affecting a group of people. On this basis alone this part of the complaint fails but we also doubt whether the appointment of HW of itself put the claimant at a substantial disadvantage compared to non-disabled people. The claimant was aggrieved and felt under threat by the new role being created but there was insufficient evidence to suggest that this was in any way comparatively worse for her than for a person without her disability in the same or similar circumstances. This allegation of failure to make reasonable adjustments fails.[60]The claimant next relies on the PCP of the “process for implementing changes in management structure for existing employees” as set out at paragraph 6.2.2 of the List of Issues. The claimant did not explain what it was about the process for implementing changes that particularly caused a concern. However, we have gone on to consider whether the way in which the respondent introduced the new role more generally had a disproportionately negative impact on the claimant compared to people without the claimant’s disability. The claimant contended that due to her Anxiety she found it more difficult to understand the scope or the new role and the subsequent changes, leading her to overthink and overanalyse. We were not satisfied that the claimant had adequately shown that this was the case. We did find that the claimant did not fully understand the scope of the new Product Manager role following the meeting held with her and MK/GD (see paragraph 9.8), but it was not clear whether this was in way related to her disability as opposed to general lack of clarity about what the role would look like. The respondent contended that the respondent continually repeated the reassurance that HW’s position was not a threat to hers, but the claimant chose not to accept or believe that this was the case, and we accepted this submission. This allegation also is not well founded.[61]The final PCP that the claimant relies upon is an alleged practice of the respondent of postponing, delaying and rescheduling meetings at short notice. This relates to the events towards the end of the claimant’s employment when MK postponed the probationary review meeting (paragraph 9.46) and then rescheduled the planned continuation meeting on 10 September 2021 (paragraph 9.49). Whilst these events did occur, for the same reasons as set out in paragraph 61 above, we were not satisfied that these events amounted to a provision, criteria or practice operated by the respondent. This was a decision affecting just the claimant on this occasion and on previous occasions when meetings were held with the claimant, there was no suggestion that these were similarly delayed, rescheduled, or postponed (see paragraphs 9.14 and 9.39). Both such meetings were requested by the claimant and were agreed to by MK and appear to have been held promptly. Therefore, this complaint fails on this basis and is not made out.[62]The claimant has therefore not made out her complaints under sections 20 and 21 EQA and such complaints are all dismissed.