Miss W Reeves v Chief Constable of Avon and Somerset Constabulary: 1400018/2024
EMPLOYMENT TRIBUNALS
Case No 1400018/2024
Between
Miss Wendy ReevesClaimantChief Constable of Avon and Somerset ConstabularyRespondent
Before
Employment Judge CuthbertMs K Gardiner - Counsel for claimantMr S Nicholls - Counsel for respondentDate 28 September 2025
JUDGMENT
[1]The claimant has proved that she was disabled, by reason of fibromyalgia in accordance with section 6 of the Equality Act 2010 between 29 April 2023 and 29 September 2023.[2]The claimant has not proved that she was disabled by reason of anxiety/stress.
REASONS
[1]The case was listed for a public, one-day Preliminary Hearing, in person, to decide the preliminary issue of disability (and to also consider certain other matters not relevant to these Reasons).[2]The claimant had produced a five-page disability impact witness statement (“DIS”). I was also provided with a 363-page bundle, including some medical records. Numbers within square brackets in these Reasons (“[xx]”) are references to page numbers within that bundle. I was also provided at the start of the hearing with a written opening skeleton argument by Ms Gardiner, the bulk of which related to the issue of disability. 1 of 28[3]After a discussion with the parties at the start of the hearing, completing Tribunal reading in, a delay whilst a hard copy bundle was obtained for use at the witness table (neither party had brought one), hearing oral evidence from the claimant and then hearing oral closing submissions, there was insufficient time remaining for Tribunal deliberations and oral judgment on the issue of disability on the day of the hearing itself. I informed the parties that I would therefore reserve judgment on the issue. The background and issues[4]The claimant is bringing various claims against the respondent. Her claims include complaints of disability discrimination in respect of the conduct of a disciplinary procedure by the respondent and an appeal process against her dismissal. The original ET1 and lengthy grounds of claim submitted by the claimant (then a litigant in person) in early 2024 [2 – 28] did not include any claims for disability discrimination (and indeed the claimant had ticked “no” in response to the ET1 question as to whether she had a disability [10]). The disability claims were added to the claim subsequently by way of amendment, following a contested application.[5]The respondent disputed that the claimant was disabled and so, at the previous preliminary hearing in March 2025 (the second such hearing), the issue of disability was set down to be determined at a third preliminary hearing.[6]The particular issues to be determined on the issue of disability were set out within a draft List of Issues [216], as follows:6.1 Did the claimant have a disability within the meaning of section 6 Equality Act 2010 (“EqA”) at the relevant time? 6.1.1 The claimant relies upon stress, anxiety, and fibromyalgia.6.2 The Employment Tribunal will need to decide:6.2.1 Did the claimant have a physical or mental impairment?6.2.2 Did it have an adverse effect on the claimant’s ability to carry out day-to-day activities?6.2.3 If so, was that adverse effect substantial?6.2.4 If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment?6.2.5 Would the impairment have had a substantial adverse effect on the claimant’s ability to carry out day-to-day activities without the treatment or other measures?6.2.6 Were the effects of the impairment long-term? The Employment Tribunal will need to decide: 2 of 286.2.6.1 Did they last at least 12 months, or were they likely to last at least 12 months?6.2.6.2 If not, were they likely to recur?[7]The burden was on the claimant to establish disability.[8]The “relevant time” was not stated within the “issues” above. The claimant had been directed at the previous preliminary hearing to provide a DIS [203 – 204] and the direction required the DIS to address the effects of the impairment between October 2022 and October 2023, which had appeared to be the relevant time.[9]I noted, however, that in her opening skeleton argument, Ms Gardiner had stated that the relevant time to be considered by the Tribunal was within a narrower window, from 26 April 2023 until 29 September 2023. Ms Gardiner confirmed that this was the relevant time relied upon by the claimant – it covered the period from when the respondent started to schedule disciplinary hearings for the claimant, to the conclusion of her unsuccessful appeal against her dismissal. This was when the alleged disability discrimination had occurred.[10]Following the previous preliminary hearing in March 2025, the claimant had been assisted by her solicitors to prepare and adduce evidence on the issue of disability for the present hearing. The prepared evidence consisted of the DIS, dated 29 May 2025 and copies of some contemporaneous medical records which had been obtained and disclosed.[11]The prepared evidence on disability was unsatisfactory in several respects:11.1 The lengthy section of the DIS which set out the claimant’s asserted “impact on ability to carry out normal day to day activity” (paras 10 – 26, also set out in full below) was drafted entirely in the present tense, with the statement having been completed in May 2025. The section made no attempt to identify what adverse effects were asserted by the claimant during the relevant time in 2023 and whether those effects had changed of fluctuated over time. The Tribunal’s task was to assess whether the claimant was disabled during the relevant time in 2023, not whether she was disabled in May 2025.11.2 Both the documentary evidence and the DIS contained medical evidence, or references to the same, about the claimant’s health after the relevant time. There were multiple references in the DIS to medical treatment in late 2023 and during 2024 and also a reference to treatment and support for the claimant from her GP “as at today’s date”. There were many medical documents in the bundle which post-dated the relevant time. Such evidence has no bearing whatsoever upon whether the claimant was disabled during the relevant time, as the relevant questions for the Tribunal are not to be answered with the benefit of hindsight.11.3 During her oral evidence, the claimant made reference to some records (OH and counselling) which seemed to relate to her health before or during the relevant time, and so would have been relevant, but which had 3 of 28 not been obtained by her solicitors and which were not therefore before the Tribunal.11.4 There was a redaction applied to one relevant medical entry ([236]) which appeared, based on the surrounding content, to have redacted evidence about the claimant’s mental health during the relevant time. The reasons for this redaction were not satisfactorily explained by the claimant during cross examination.[12]There was also no expert or other medical evidence obtained to specifically assist the Tribunal with determining the issue of disability. In this case, such evidence would have been of considerable assistance to the Tribunal. Evidence and findings of fact[13]The relevant documentary medical records were as follows:13.1 18.5.00 – GP entry [330]. Reference to “anxiety state” but no further details.13.2 2.3.18 – GP entry stress at work [234]. Some anxiety in past week. Refers to accessing counselling via work. More active and losing weight. In her oral evidence, the claimant said that this GP entry related to her being stressed on finding out that no action was being taken against a colleague who was the subject of a complaint she had raised at work.13.3 9.1.19 – GP entry [247]. Pain in feet. Multiple body aches – having a negative impact on quality of life. Can’t carry heavy bags, move pots off stoves, pain cyclical and getting worse, stiffness in arms – takes a while to get moving and loosen joints. Stiff gait into room.13.4 7.2.19 – GP referral letter to rheumatology [248]. “longstanding concerns about possible fibromyalgia and this is my main reason for referring her. She reports longstanding generalised and intermittent aches and pains, mainly affecting her shoulders, elbows, wrists, hips and low back, variable in site and often worse after being in bed or sitting for longer periods of time. There is nothing to suggest any joint synovitis with the absence of redness or swelling. Her main concern is that as previously being an active person, she now finds it increasingly hard to get through the day in her job as a Community Support Officer”. Weight increasing and mood lower as a consequence. May have fibromyalgia.13.5 2.4.19 – self-assessment for fibromyalgia completed by claimant [251 – 252]. Almost all areas of body ticked for pain. Fatigue and waking moderate issues. Mild cognitive issues. Multiple other symptoms ticked.13.6 8.4.19 – GP notes [253]. Fibromyalgia “likely”. Often feels low from pain. Wrists constantly painful and feeling weak. Noted a lot of physical symptoms in past but often normal results and backdrop of stress/anxiety. 4 of 2813.7 10.5.19 – GP referral letter for pain management [256]. Probably fibromyalgia. Struggling with chronic pain for a number of years. Pain progressively worsened over the years and starting to impact on mood – often feeling low and anxious about impact of pain on the future and on her job. Generalised ache and pains to the shoulders, elbows, wrists, hips, low back in the absence of any swelling or redness. Finds it very hard to be on her feet throughout the day, worsened now by her weight gradually increasing due to less activity. Likely she does have a diagnosis of fibromyalgia.13.8 19.5.19 – A&E note [258]. Attended A&E with right wrist pain. The report notes recent diagnosis of fibromyalgia – finding it difficult to accept.13.9 11.11.19 – pain management assessment letter [260]. Experiencing symptoms for over five years and recently diagnosed her with fibromyalgia. Has widespread pain, fatigue, problems with concentration, sensory sensitivity and weakness in her muscles. He sleep is unrefreshing. Symptoms are practically bad in her jaw, hips and legs, but are variable and move around. In addition she has been struggling with plantar fasciitis for some time and this makes her job as a community support officer with the police very difficult as she is on her feel a great deal of the time. Has been able to make some adaptations at work so she can use the car/bus more often and is able to sit for parts of the day. She has also reduced the length of her shift and been able to agree a later start time (helpful as her symptoms are much worse first thing in the morning). She lives with her partner and “is getting increasingly distressed with the limitations these symptoms are bringing to her life”.13.10 5.11.20 – GP entry [261]. Been offered later shifts due to fibromyalgia related poor sleep and morning tiredness. [No relevant medical evidence between November 2020 and December 2022 was before the Tribunal] [The disciplinary proceedings in dispute commenced in October 2022]13.11 14.12.22 – GP entry [235]. Going through stressful time at work currently. Blood pressure was raised before work-related stresses.13.12 5.1.23 – GP entry [236]. Worried about stress at home and suspended from work. Very stressful. Tearful today and seemed stressed.13.13 12.4.23 – email [273]. Claimant invited to eight-week course for pain management commencing in May 2023. The claimant said in oral evidence that she did not take this course at the time as her son was injured in a motorbike accident in May 2025 – she said she did take it later in 2023 (she was invited to it again from October 2023).13.14 13.4.23 – email to claimant [275]. Invitation to National Centre for Integrative Medicine “breathe for wellbeing” course (a free six-week in5 of 28 person course in April and May 2023). During cross examination the claimant confirmed that she attended this course.13.15 26.4.23 – OH report [280]. Investigation at work impacting on the claimant’s wellbeing and mental health. Fit for employment. Symptoms of stress will be reduced at the end of the investigation. This was the only OH report provided to the Tribunal.13.16 14.6.23 – GP entry [237]. Really struggling with anxiety and feeling down. Claimant’s son’s motorbike accident in May 2023 mentioned. Has constant feelings of anxiety, generally restless and physical symptoms of difficulty swallowing and palpitations. Feels saddest she has ever been. Down all the time, generally exhausted. Sleep poor and struggles to sleep. Poor appetite. Fibromyalgia has been worse with stress. Keen to try counselling with medication as a back-up. Tearful throughout consultation. Well-dressed and wearing make-up.13.17 21.6.23 – GP medical certificate [282]. Not fit for work 12.6.23 – 12.7.23 due to ongoing symptoms of stress and anxiety, exacerbated by son’s accident.13.18 5.7.23 – GP entry [238]. Low mood and anxiety. Caring for son after motorbike accident – “requires significant care from Wendy as bedbound so needs personal care, bed changing, all meals, dressings changed every 2 days…can only leave for 30 mins”. References to work situation and disciplinary hearing. Feeling constantly anxious and on the edge of panic. Feeling hopeless about the future and helpless about the situation. “Bucket full to the brim and can’t cope with anything else”. Sleeping poorly, waking regularly, fibromyalgia symptoms worse. Thoughts of wishing she would disappear but no self-harm or suicide. Possibility of medication discussed. Medical certificate issued for one month [285] – stress, anxiety and fibromyalgia.13.19 7.8.23 – GP entry [239]. Stress related problem. Needs sicknote. Discussed pros and cons of SSRI medication.13.20 7.8.23 – email to claimant [287]. Invitation to pain self-management programme starting in October.[14]Other relevant documentary evidence was as follows:14.1 Jan 2014 – medical questionnaire. Completed by the claimant on joining the respondent. Ticked “yes” to “anxiety/depression or stress related problems” and later wrote “2000. Anxiety due to stress-related life issues”14.2 22.8.22 – email from claimant [268]. Refers to 15 appointments for fibromyalgia self-management.14.3 5.4.23 – OH referral form completed by line manager [270]. Refers to claimant struggling with mental health during previous 6 months (under investigation). 6 of 2814.4 16.6.23 – email from claimant [284]. “The enormous amount of stress that I am under caused a breakdown a couple days ago leading me to seek help from Helen at Occupational Health, we discussed why I am struggling to cope with everything that is going on at work and home”. The claimant’s own evidence[15]In her DIS, dated 29 May 2025, the claimant asserted the following effects upon her normal day-to-day activities, having already noted that the DIS was drafted in the present tense: Stress and anxiety10. My concentration and focus are severely impaired by persistent negative and intrusive thoughts which make it difficult to complete everyday tasks, as I often lose interest or confidence partway through, leading to avoidance and a sense of failure. I struggle to participate in conversations, frequently losing track and feeling unable to contribute, which undermines my confidence and increases my sense of isolation.11. Short-term memory issues are common; it often prevents me to plan ahead and organise my thoughts and write lists to help me remember things. I repeatedly check whether I have locked doors or turned off appliances, as I cannot trust my memory. This constant secondguessing adds to my anxiety and erodes my self-confidence.12. Sleep is a persistent problem. Despite feeling exhausted, I often lie awake overthinking, and if I wake during the night, also due to reoccurring nightmares, I struggle to return to sleep. This lack of restorative sleep leaves me groggy and even when I think I have slept well, I still feel the same. The resulting fatigue makes it difficult to get out of bed and face daily activities, and it intensifies my anxiety, attributing to my low mood needing prompts by my partner to wash dress and start the day.13. Ongoing tiredness and anxiety have made me hesitant to drive at night, limiting my independence and social life. When anxiety prevents me from driving, I feel a profound loss of independence and increased isolation.14. I am anxious before I leave my home and cannot travel to an unfamiliar place without another person due to overwhelming distress. I struggle to plan or follow a route due to avoidance of triggering situations and find it difficult when an unexpected change happens. I cannot travel on public transport such as a Train or an Aeroplane due to the fear of entrapment and being unable to exit with urgency during a panic attack. 15. My motivation to do household chores is low, and struggle to remain in an everyday routine, my partner has had to take on more 7 of 28 responsibilities, which sometimes causes tension and leaves me feeling inadequate.[16]My partner encourages me to engage with preparation, cooking and eating a nutritious meal when I am most anxious, often feel nauseous and with appetite loss forget to eat then would snack on unhealthy easy food.[17]Anxiety makes shopping, especially in crowded places, extremely difficult. I avoid shopping during busy times. My partner often handles communication and filters calls or messages, as I am unable to deal with these when unwell. I maintain contact with a small circle of friends, but only when I feel able.[18]I am unable to engage in activities I once enjoyed and that would usually lift my mood such as running races, due to the challenges of interacting with others. The prospect of new activities is daunting, and I avoid going into town on weekends out of fear of encountering former colleagues, further isolating me from social and recreational opportunities.[19]Losing my job was a major blow. My career was a source of pride and identity, being abruptly suspended and dismissed has caused me sadness and has deeply affected my mental and emotional well-being. I often replay the last months of my employment, doubting my ability and left feeling let down by the lack of support. The emotional toll of losing my career in this way has left a lasting impact on my confidence and overall well-being.[20]My quality of life has deteriorated significantly due to ongoing anxiety and stress. I struggle to look forward, feeling as though my world has been turned upside down. My thoughts are often consumed by the past, and I find it difficult to focus on positive aspects of life. This situation leaves me feeling as though my life is on hold, unable to fully engage in activities or find joy and purpose. Fibromyalgia[21]I experience mobility issues making it difficult to commute, drive or move around. My legs swell and I have increased sensitivity to pain. A primary challenge I face is constant joint and muscle stiffness, which makes exercise and movement difficult and painful. This ongoing issue limits my ability to engage in physical activities, do household chores, and maintain an active lifestyle, leading to a cycle of reduced mobility and increased discomfort. Requiring regular rest and recovery.[22]Additionally, I experience unpredictable episodes of uncomfortable pins and needles sensations, which can occur in different parts of my body without warning. The unpredictability of these episodes fosters a sense of uncertainty, adding to both my physical and emotional exhaustion. 8 of 28[23]Brain fog affects my concentration and memory which impacts on my decision making and task completion. This cognitive impairment often leads to mistakes, delays, and frustration. For instance, I may forget important appointments, lose track of what I was doing midway through a task, or struggle to find the right words during conversations and take in new information as quickly as I once did. Problem-solving and decision-making, which were once straightforward, now require immense effort and can leave me feeling mentally exhausted.[24]My Fibromyalgia severely impacts my ability to achieve restorative sleep, worsening symptoms like pain, fatigue, and brain fog. Despite constant exhaustion, I struggle to fall, stay, or remain in deep sleep due to pain and disturbance of repositioning myself causing discomfort even after being in a position for a short time. This leaves me unrefreshed, making mornings especially difficult, and simple tasks like washing and dressing feel overwhelming without my support network.[25]The persistent pain and fatigue deeply impact’s my mood and mental health, leaving me feeling emotionally drained and unmotivated. Even the simplest household chores can feel overwhelmingly and difficult to accomplish with attempts to manage tasks in intervals albeit a slower pace is often left undone.[26]Fibromyalgia has significantly changed my life. I no longer feel like the person I once was, which affects my mood most days. I lack enthusiasm and only do what’s necessary, though some days I just need to stay in bed and rest. 16. During her oral evidence, the claimant was challenged at length by Mr Nicholls during cross examination. I have made reference as follows to the oral evidence which I considered to be relevant to the questions which I needed to decide (I have not referred to oral evidence which I did not consider to be relevant):16.1 The claimant experienced some anxiety in around 1996 or 1997 which subsided in around 2000. There was no evidence before the Tribunal of any adverse effects upon day-to-day activities during that period.16.2 She had in the past been prescribed an anti-depressant (Seroxat) many years before she started working for the respondent (2014) - but had experienced an adverse reaction when she stopped taking the medication. She had therefore been very reluctant to start taking antidepressants again when the possibility had been raised by her GP in mid-2023. There was no medical or other evidence before the Tribunal about what had led to the claimant being prescribed anti-depressants in the past. I accepted the claimant’s evidence that she had taken antidepressants at some point in the past despite, as Mr Nicholls pointed out, not having mentioned this in the DIS. Mr Nicholls challenged the claimant not having taken medication again during 2023, suggesting that this indicated that this was a reflection of the severity of the effects. 9 of 28 The claimant repeatedly referred back to her prior negative experience with medication.16.3 The claimant had some counselling in around 2018 via the respondent’s OH team. Mr Nicholls challenged the absence of any records of this in the Tribunal bundle. There was a brief reference to counselling in the GP notes in early 2018. There were no documentary records of the content of the counselling, nor were any OH records available from that time, in terms of how the claimant may have been affected in 2018.16.4 The claimant was given a flexible working pattern at work by the respondent following her diagnosis of fibromyalgia – starting work at midday. She was suspended from work from October 2022 and remained so during the relevant time.16.5 The claimant said that her anxiety symptoms “accelerated” from around June 2023, after her son was injured and when she heard that she was going to need to attend a disciplinary hearing at work. She said she had never experienced anxiety symptoms like that before.16.6 The claimant was challenged by Mr Nichols about the GP entry which referred to her providing support to her injured son in 2023 (5.7.23 [237] – see above). Mr Nicholls said that this was inconsistent with the DIS in which the claimant asserted considerable difficulties with her own personal care and with household chores and tasks The claimant said that her son had needed “care around the clock”. She said that she supported him along with her partner – she could not have done so on her own. I note here that the GP notes [238] appear to mention the claimant’s partner as working full time and so it being “difficult to support practically” – this appears to be a reference to the claimant’s partner. I find that the claimant did largely support her son, following his injury in mid-2023, as the GP notes very clearly state, but that her partner did also provide some support to her son (albeit not “significant” support, as she claimed).16.7 The claimant said that her fibromyalgia caused her head-to-toe pain when it flared up, and that it had flared up from around the middle of 2023 – it became worse when she was anxious.16.8 The claimant was challenged by Mr Nicholls about the situational nature of her stress/anxiety, i.e. that it appeared to flare up in response to her situation, such as the work issues and her son’s injury in mid2023. The claimant did not dispute this, accepting that she was affected by work stress, the disciplinary proceedings/hearing date alongside caring for her son. She felt “a bit hopeless” about her situation at that time.16.9 Mr Nicholls challenged the claimant about her DIS and the asserted effects of the fibromyalgia and said that there was a lack of evidence of the same in the 2023 medical notes. The claimant said that 10 of 28 fibromyalgia symptoms had been affecting her in 2023 – she had discussed them with her supervisor and had also been referred to the pain clinic for her fibromyalgia, which she had been invited to attend in May 2023 and attended later in 2023.16.10 Mr Nicholls challenged the claimant about her DIS in which she attributed many of the same asserted symptoms to both conditions of fibromyalgia and stress/anxiety. The claimant explained that the conditions overlapped but there were differences. She gave the example of sleep and that the fibromyalgia affected her sleep because of pain preventing her from getting to sleep or waking her up, whereas anxiety affected her sleep because it caused her to suffer from nightmares. Each resulted in her experiencing fatigue.16.11 She was challenged about her assertions in the DIS about driving (para 13 – anxiety her making hesitant to drive at night; para 21 – fibromyalgia making it “difficult” to drive due to mobility issues. The claimant said that she did not drive at all when experiencing a fibromyalgia “flare up” as it was too painful, which I accepted insofar as it refers to the position during such a flare-up but not more generally. She said that driving at night required more physical and mental effort, and that she “preferred” not to drive in the dark but was unable to explain satisfactorily how anxiety had any impact upon that task.16.12 The claimant was challenged about running (para 19 DIS). She said that she had given up jogging, running and also mentioned dancing in around 2019 due to fibromyalgia. She was unable to explain satisfactorily any impact caused to these activities due to anxiety (as opposed to having stopped them, which I accepted she did, because of the effects of the fibromyalgia).16.13 The claimant’s assertions in the DIS about difficulty with concentration and brain fog were challenged by Mr Nicholls with reference to her having prepared detailed written submissions during the disciplinary proceedings (which occurred during the relevant time). The submissions were not before the Tribunal. The claimant explained, and I accepted her explanation, that she did the submissions herself, but that they took her weeks and weeks to prepare, on a stop-start basis, she would at times forget details and having to review and rereview, over and over again.16.14 During re-examination, the claimant was asked about a GP entry [236] in January 2023 which refereed to having pain in her left ear for one year, radiating into her neck and an apparent diagnosis of “temporomandibular joint disorder/TMJ”. The claimant appeared to suggest in her response that TMJ and the symptoms attributed to it were in fact an aspect of her fibromyalgia. I did not accept this assertion, about what appeared to be a different medical condition, as it was not supported by any other evidence, including medical 11 of 28 evidence and there was no reference to fibromyalgia in the relatively lengthy GP note in question. Findings on day-to-day activities affected 17. There was limited commonality between the adverse effects described by the claimant in her DIS and the contemporaneous medical records from the relevant time, up to the end of September 2023. In particular, the adverse effects described in the DIS by the claimant are broader and generally more severe than effects suggested by the medical records during 2023. This may have been because the DIS was not seemingly drafted with the relevant time specifically in mind and may well have been describing a subsequent period (2025?). 18. For example, the DIS described adverse effects on the claimant’s ability to undertake personal care and do household chores in paras 12, 15 and 16 – there was no reference to the same in the contemporaneous records and indeed the GP records expressly refer to the claimant supporting her injured son with household tasks and personal care during the relevant time, as opposed to her being unable to do the same for herself. I do not accept that the claimant was wholly or largely unable to carry out household chores, as she appeared to be asserting in the DIS, but I have accepted below that there was some effect on her ability to do such things. 19. The DIS also failed to address the issue of fluctuations or differences in the conditions over time, whereas in oral evidence the claimant appeared to be saying that the more severe effects of the fibromyalgia affected her during “flare-ups” rather than continuously, and that effects were particularly severe in mid-2023 when the disciplinary proceedings and the claimant’s son’s accident coincided. 20. As such, I could not be satisfied that many of the effects described by the claimant in the DIS and attributed to the two impairments asserted (set out above in the DIS), were affecting the claimant during the relevant time – the evidence adduced on behalf of the claimant failed to establish her case to the extent asserted in the DIS. 21. Despite the lack of focus in the claimant’s evidence, I was, however, satisfied from the relevant documents and the claimant’s own evidence that the following adverse effects on day-to-day activities were present for at least some of the relevant time and in particular during June and July 2023: 22.1 Stress/anxiety21.1.1 Poor sleep, making the claimant feel fatigued and causing her to find it difficult to get out of bed and start the day with daily activities – washing and dressing.21.1.2 Feeling constantly anxious and on the edge of panic – as noted in the GP records. I accept the claimant’s DIS that this degree of anxiety would have affected her ability to cope with busy shops and so affected her ability undertake shopping. I also accept that when she felt as anxious as noted in the GP records, 12 of 28 this degree of anxiety would have affected her ability to undertake tasks such as travelling to unfamiliar places on her own. 21.2 Fibromyalgia - whilst there were only limited references to this condition in the GP notes, I took into account(i) the references to increased fibromyalgia “symptoms” in GP notes in June and July 2023,(ii) the earlier medical evidence from 2019, which is fairly detailed, as to what the claimant’s fibromyalgia and pain symptoms were when the condition flared up at that earlier time(iii) the claimant’s oral evidence of head-totoe pain and an increase in such symptoms during fibromyalgia flare-ups and(iv) that the claimant was referred during the relevant time for pain management treatment as further evidence that she was being affected by pain symptoms), which she then undertook in October 2023. I accept the following effects on activities during the relevant time:21.2.1 Joint and muscle stiffness and fatigue due to fibromyalgia making household chores more difficult for the claimant. The claimant’s evidence was unspecific about which chores were affected but I considered the general description to be sufficient. I do not find that the effects were as severe as described in the DIS, and that she was able to assist her son following his injury, but I do accept that when the fibromyalgia flared up, household chores were difficult for the claimant.21.2.2 Brain fog affecting the claimant’s concentration and memory, with the claimant describing the example of preparing a document for her work disciplinary hearing taking her many weeks to prepare, having to review and re-review the document in question.21.2.3 The claimant being unable to sleep restoratively, due to fibromyalgia, causing her to feel exhausted during the day, and making tasks like washing and dressing in the morning feel difficult and overwhelming.21.2.4 The claimant had previously given up running, dancing and attending the gym, in around 2019, because of the effects of fibromyalgia upon her. This remained the position during the relevant time and would have been the case when the fibromyalgia flared up at that time. The relevant law - disability The statutory definition of disability 22. Section 6 of the EqA says: (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… 13 of 28 (2) A reference to a disabled person is a reference to a person who has a disability. 23. Section 212 of the EqA defines “substantial” as being more than minor or trivial. 24. Para 2 of Sch 1 to the EqA says: (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. Para 5 of Sch 1 to the EqA says: (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 activities if: (a) measures are being taken to correct it, and (b) but for that, it would be likely to have that effect. (2) ‘Measures’ includes, in particular, medical treatment and the use of a prosthesis or other aid. 26. Para 12 of Sch 1 of the EqA says that when determining whether a person is disabled, the Tribunal “must take account of such guidance as it thinks is relevant.” The Equality Act 2010 Guidance: Guidance on matters to be taken into account in determining questions relating to the definition of disability (May 2011, updated March 2013) (the Guidance) was issued by the Secretary of State pursuant to section 6(5) of the EqA. The overall approach to deciding the issue of disability[27]In an important early case on determining the issue of disability, Goodwin v Patent Office [1999] I.C.R. 302, Morison J (President), said that Tribunals “should bear in mind that with social legislation of this kind, a purposive approach to construction should be adopted. The language should be construed in a way which gives effect to the stated or presumed intention of Parliament”. Namely, the legislation on disability is designed to confer protection rather than to restrict it.[28]Unless it is agreed by the respondent that the claimant was, at the relevant times, a disabled person then the responsibility is on the claimant to show that they were a disabled person. 14 of 28[29]The relevant point in time to be looked at by the Tribunal when evaluating whether a claimant is disabled under section 6 is not the date of the hearing, but the time of the alleged discriminatory act(s): Cruickshank v Vaw Motorcast Ltd [2002] I.C.R. 729.[30]In Goodwin, Morison J, provided some guidance on the proper approach for the Tribunal to adopt when applying the provisions of the Disability Discrimination Act 1995 (precursor to the EqA disability provisions). He set out four questions to be answered by the Tribunal in order. This four-stage approach was approved more recently by the Court of Appeal in Sullivan v Bury Street Capital Limited [2021] EWCA Civ 1694, where Singh LJ listed the questions as:30.1 Was there an impairment? (the ‘impairment condition’);30.2 What were its adverse effects [on normal day-to-day activities]? (the ‘adverse effect condition’);30.3 Were they more than minor or trivial? (the ‘substantial condition’);30.4 Was there a real possibility that they would continue for more than 12 months? (the ‘long-term condition’).[31]Singh LJ emphasised that these are questions for the Tribunal; although a Tribunal may be assisted by medical evidence, it is not bound by any medical opinion expressed.[32]In Goodwin, Morison J warned of the risk of disaggregating” the four questions – i.e. whilst they can be addressed separately, it is important not to forget the purpose of the legislation, and to look at the overall picture. This warning was emphasised by HHJ Tayler more recently in Mr A Elliot v Dorset County Council, UKEAT/0197/20/LA. The “impairment” question[33]Underhill J (President) in J v DLA Piper UK LLP [2010] WL 2131720 suggested (para [40]) that although it was still good practice for the Tribunal to state a conclusion separately on the question of impairment, as recommended in Goodwin, there will generally be no need to actually consider the ‘impairment condition’ in detail: In many or most cases it will be easier (and is entirely legitimate) for the tribunal to ask first whether the claimant's ability to carry out normal dayto-day activities has been adversely affected on a long-term basis. If it finds that it has been, it will in many or most cases follow as a matter of common-sense inference that the Claimant is suffering from an impairment which has produced that adverse effect. If that inference can be drawn, it will be unnecessary for the tribunal to try to resolve the difficult medical issues.[34]Para 7 of Appendix 1 to the EHRC’s Employment Code of Practice (the Code) states: ‘There is no need for a person to establish a medically diagnosed cause 15 of 28 for their impairment. What is important to consider is the effect of the impairment, not the cause’.[35]This was confirmed by Langstaff P in Walker v Sita Information Networking Computing Limited [2012] UKEAT 0097/12: ‘The purpose of the definition of disability was not to confine an impairment to that which could be shown to be given a medical label which was either a recognised physical or mental condition; it was, rather, to describe the nature of the impairment. The Act did not require a focus upon the cause of that impairment’.[36]The Guidance says at A3: The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. In many cases, there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long-term. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects.[37]In terms of a mental impairment, the Court of Appeal said that the term “mental impairment” should be given its “natural and ordinary meaning”, and the Tribunal should use its “good sense” to make a decision whether the claimant is suffering from a mental impairment on the facts of each case: per Mummery J in McNicol v Balfour Beatty Rail Maintenance Ltd [2002] EWCA Civ 1074. The “adverse effect on normal day-to-day activities” question[38]“Day-to-day activities” encompass activities which are relevant to participation in professional life as well as participation in personal life, and that the Tribunal should focus on what the claimant cannot do, not what they can do.[39]There needs to be evidence that the relevant impairment caused the adverse impact on the claimant’s ability to carry out normal day-to-day activities – see Primaz v Carl Room Restaurants Ltd [2021] WL 05510289.[40]The Guidance includes the following examples of what is meant by “normal dayto-day activities” (paragraph numbers in the Guidance are in square brackets):40.1 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. [D3]40.2 Normal day-to-day activities can also include general work-related activities such as interacting with colleagues, driving and keeping to a 16 of 28 timetable or shift pattern. [D3].40.3 The term ‘normal day-to-day activities’ is not intended to include activities which are normal only for a particular person, or a small group of people. In deciding whether an activity is a normal day-to- day activity, account should be taken of how far it is carried out by people on a daily or frequent basis. In this context, ‘normal’ should be given its ordinary, everyday meaning. [D4] It is not necessary, however, that “most people” carry out the activity for it to amount to a normal day-to-day activity – the examples of breast feeding and applying make-up are given [D5].40.4 Normal day-to-day activities also include activities that are required to maintain personal well-being. Account should be taken of whether the effects of an impairment have an impact on whether the person is inclined to carry out or neglect basic functions such as eating and sleeping [D16].40.5 Some impairments may have an adverse impact on the ability of a person to carry out normal day-to-day communication activities [D17].40.6 The Guidance also says at [D20 and D21] that environmental conditions may have an impact on how an impairment affects a person’s ability to carry out normal day-to-day activities and that consideration should be given to whether there may also be an adverse effect on the ability to carry out a normal day-to-day activity outside of that particular environment. Work-related activities may be "normal"[41]As the Guidance above indicates at D3, Tribunals are entitled in appropriate circumstances to take into account the effect on an employee of circumstances which only arise at work (Law Hospital Trust v Rush [2001] IRLR 611; Cruickshank v VAW Motorcast [2002] IRLR 24).[42]In Chacón Navas v Eurest Colectividades SA [2006] IRLR 706, the European Court of Justice (ECJ) confirmed that the effect on a person's abilities at work should be taken into account: “disability” in the context of the Framework Directive means "a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life".[43]This is now reflected in para 5A of Schedule 1 of the Equality Act 2010 (since 1 January 2024), as follows: 5A(1) This paragraph has effect for the purposes of the application to the protected characteristic of disability of— (a) Part 5 (work); ….(2) References in the relevant provisions to a person’s ability to carry out normal day-to-day activities are to be taken as including references to the person’s ability to participate fully and effectively in working life on an equal basis with other workers. 17 of 28[44]Domestic examples of work-related activities amounting to normal day-to-day activities include:44.1 Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763 - career-related examinations and assessments.44.2 Chief Constable of Dumfries & Galloway Constabulary v Adams UKEATS/0046/08 - night work.44.3 Aderemi v London and South Eastern Railway Ltd UKEAT/0316/12 - standing for long periods.44.4 Banaszczyk v Booker Ltd UKEAT/0132/15 - lifting and moving goods weighing up to 25kg. The EAT found that it was beyond doubt that this was a normal day-to-day activity, as large numbers of people are employed to do this type of work across a range of occupations. The EAT noted that it is important to define the relevant activity of working or professional life broadly.44.5 Williams v Newport City Council [2023] EAT 136 – inability (of a social worker) to attend court hearings.[45]In Rayner v Turning Point and others UKEAT/0397/10, the EAT said that advice from a GP to abstain from work "is in itself evidence of a substantial effect on dayto-day activities... day-to-day activities include going to work. If he is medically advised to abstain and is certified as such so as to draw benefits and sick pay from his employer, that is capable of being a substantial effect on day-to-day activities". The “substantial” effect question[46]Section 212(1) EqA defines “substantial” as meaning a “more than minor or trivial” effect.[47]The Guidance includes the following:47.1 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 in ability which may exist among people [B1]. This has been seen as a problematic aspect of the Guidance – see Elliot v Dorset County Council. Any inconsistency must be resolved in favour of the statute.47.2 The cumulative effects of an impairment should be taken into account when working out whether it is substantial. An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation. However, it is important to consider whether its effects on more than one activity, taken together, could result in an overall substantial adverse effect [B4]. For example: “A man with depression experiences a range of symptoms that include a loss of energy and motivation that makes even the simplest of tasks or decisions seem quite difficult. He finds it difficult to get up in the morning, get washed and 18 of 28 dressed, and prepare breakfast. He is forgetful and cannot plan ahead. As a result he has often run out of food before he thinks of going shopping again. Household tasks are frequently left undone, or take much longer to complete than normal. Together, the effects amount to the impairment having a substantial adverse effect on carrying out normal day-to-day activities.”47.3 The focus should be on what an individual cannot do, or can do only with difficulty, rather than on the things that he or she can do [B9].[48]As noted above, the effects of some impairments may become substantial depending on environmental conditions [D20/21].[49]Appendix 1 to the Code also provides guidance on the meaning of “substantial”: “Account should… be taken of where a person avoids doing things which, for example, causes pain, fatigue or substantial social embarrassment; or because of a loss of energy and motivation.”[50]In Stedman v Haven Leisure Ltd [2025] EAT 82 the EAT said that a Tribunal should consider the following three legal points when determining whether the impairment had a substantial adverse effect on the ability to carry out normal dayto-day activities:50.1 In judging whether the adverse effect is substantial, the comparison is between the claimant as they are and as they hypothetically would be without the impairment.50.2 It is sufficient if the claimant's impairment has a substantial adverse effect on just one day-to-day activity.50.3 It is not permissible to weigh up a claimant's ability to carry out one dayto-day activity against another day-to-day activity to arrive at some overall assessment of ability to carry out day-to-day activities generally.[51]As stated in the Guidance, the effect of an impairment on more than one activity, taken together, could result in an overall substantial adverse effect. Further, the cumulative effect of more than one impairment should be taken into account. In Ginn v Tesco Stores Ltd UKEAT/0197/05, the EAT confirmed that it is not necessary for the impairments affecting the claimant to interact, or to have the same effect, or affect the same part of the body. The question for the tribunal to determine is whether the combined effect of the impairments is to have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities (see also Mefful v Merton and Lambeth Citizens Advice Bureau UKEAT/0127/16).[52]Two consecutive impairments can be aggregated for the purposes of determining the duration of an impairment, provided they are related (Patel v Oldham Metropolitan Borough Council and The Governing Body of Rushcroft Primary School UKEAT/0225/09; see also para [C2] of the Guidance. Effects of treatment[53]The EqA Sch 1 para 5 provides that, where an impairment is subject to treatment 19 of 28 or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect [B12]. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’.[54]The impairment should therefore be treated by the Tribunal as having the effect that it would have without the measures in question. The EqA states that the treatment or correction measures which are to be disregarded for these purposes include, in particular, medical treatment and the use of a prosthesis or other aid (Sch1, Para 5(2)). In this context, medical treatments would include treatments such as counselling, the need to follow a particular diet, and therapies, in addition to treatments with drugs (See also [B7] and [B16]).[55]This provision applies even if the measures result in the effects being completely under control or not at all apparent [B13]. Where treatment is continuing it may be having the effect of masking or ameliorating a disability so that it does not have a substantial adverse effect. If the final outcome of such treatment cannot be determined, or if it is known that removal of the medical treatment would result in either a relapse or a worsened condition, it would be reasonable to disregard the medical treatment in accordance with paragraph 5 of Schedule 1. The “long term” question[56]In McKechnie Plastic Components v Grant UKEAT/0284/08 it was said: … the Appellant does have a valid ground on one aspect of the judgment; namely the approach the Tribunal adopted in relation to the question of whether the mental impairment was long term. It is not clear why the Tribunal decided at paragraph 6 that the mental impairment had started in January 2007 nor is it clear whether the Tribunal had in mind the full statutory test which has three categories concerning the impairment; - namely that it has lasted for 12 months; - the period for which it lasts is likely to be at least 12 months or - it is likely to last for the rest of the person's life. Paragraph 9 of the decision refers only to the 12-month test. However the Tribunal do not appear to have considered whether the 12 month test was satisfied at the time of the alleged discriminatory acts as opposed to the date of the hearing. Moreover the Tribunal has made no findings of fact to justify whether the conditions of either of the other categories have been met.[57]The EqA also covers recurring and fluctuating effects and says that, if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur (Sch 1, para 2).[58]Para C7 of the Guidance refers to recurring or fluctuating effects and says: 20 of 28 It is not necessary for the effect to be the same throughout the period which is being considered in relation to determining whether the ‘longterm’ element of the definition is met. A person may still satisfy the longterm element of the definition even if the effect is not the same throughout the period. It may change: for example activities which are initially very difficult may become possible to a much greater extent. The effect might even disappear temporarily. Or other effects on the ability to carry out normal day-to-day activities may develop and the initial effect may disappear altogether.[59]In Williams v Leukaemia and Lymphoma Research UKEAT/0493/13. W suffered from a chronic relapsing condition of depression and was complaining of discrimination occurring in late 2012 and early 2013. The Tribunal accepted that the effects of his depression were substantial and adversely affected his ability to carry out normal day-to-day activities from November 2012 onwards. W argued that these effects were long term because they were recurring or fluctuating and referred to isolated historical instances some years earlier (2001, 2006, 2009 and 2010). The judge noted that there were references in W’s medical records which showed incidents of depression or stress at those points between 2001 and 2013. However, in the absence of any medical evidence (or direct evidence from W) of what effect on him these previous incidents had, the judge found that W had not established the necessary recurring effects and so had not discharged the burden of proving that he was disabled at the material time. On appeal, the EAT upheld this decision. The available evidence supported the judge’s conclusion that W was suffering effects from his underlying impairment. However, that evidence did not support a conclusion as to the effects, if any, of the impairment at the previous points in W’s medical history. The case illustrates the need for evidence as to the effects of a condition upon the claimant’s day to day activities at the times when it is said to have occurred in the past and said to have recurred.[60]“Likely” has been held to mean it is a “real possibility” and “could well happen” rather than something that is probable or more likely than not - SCA Packaging Ltd v Boyle [2009] ICR 1056: The prediction of medical outcomes is something which is frequently difficult. There are many quiescent conditions which are subject to medical treatment or drug regimes and which can give rise to serious consequences if the treatment or the drugs are stopped. These serious consequences may not inevitably happen and in any given case it may be impossible to say whether it is more probable than not that this will occur. This being so, it seems highly likely that in the context of paragraph 6(1) in the disability legislation the word “likely” is used in the sense of “could well happen”.[61]As stated above in McKechnie, the relevant date for assessing whether or not an impairment had lasted, or was likely to last, for 12 months is at the date(s) of alleged discrimination (see also Tesco Stores Ltd v Tennant [2020] IRLR 363; Seccombe v Reed in Partnership Ltd UKEAT/0213/20). The parties’ submissions 21 of 28[62]Ms Gardiner’s Closing Submissions62.1 Ms Gardiner said that the key points were already set out in her written opening skeleton argument (that document had set out, primarily, a summary of the relevant law and summarised the relevant passages of the documentary medical evidence, which I have set out above, and emphasised various passages in the DIS (the key passages are also set out in full above)).62.2 She started with the question of whether the claimant had an impairment. Based on the documentation, there was no doubt, she said, that the claimant has fibromyalgia, which amounted to an impairment.62.3 Ms Gardiner anticipated that the respondent may argue that stress and anxiety did not constitute an impairment, and noted that crossexamination had focused on the idea that references to stress and anxiety in the records were linked to life events or isolated incidents.62.4 She submitted that a formal diagnosis is not required to establish an impairment (J v DLA Piper).62.5 Ms Gardiner referred to the evidence in its totality on stress/anxiety, which she argued demonstrated that the impairment has a substantial and long-term adverse effect on day-to-day activities. At [220] the DIS referred to diagnoses in 1996 and 1997. There was also a questionnaire, completed before the claimant started her employment, which referred to stress in 2000, so indicating a history of stress and anxiety.62.6 She highlighted that in 2017 and 2018, the claimant experienced recurring symptoms, particularly following an assault. [234] showed that the claimant had consulted a GP at work after the assault.62.7 Ms Gardiner pointed [264], an email dated 12 August 2021—over three years later—where the claimant was still discussing the assault and its impact on her mental health. Ms Gardiner argued that the persistence of symptoms over three years suggested they were significant at the time.62.8 She reiterated that, as set out in the submissions, for an effect to be considered substantial, it need only be more than minor or trivial. It was not necessary to find that the symptoms were present at their height throughout the period—only that they were more than minor or trivial.62.9 There was clear evidence of symptoms predating the fibromyalgia diagnosis. Ms Gardiner submitted that the claimant’s stress and anxiety exacerbated her fibromyalgia. Attempts were made to separate the symptoms, but both the claimant’s DIS and medical evidence showed overlap. Medical passages indicate that the claimant’s mood impacted her pain, and the claimant gave evidence that stress and anxiety worsened her fibromyalgia. [237] and [238] mentioned that fibromyalgia symptoms worsened with stress. 22 of 2862.10 The claimant had summarised the symptoms and separated them where possible. Paragraph 25 of the written submissions included examples from Guidance that reasonably demonstrated substantial adverse effects on day-to-day activities, as referenced in the claimant’s DIS. Those symptoms were not seriously challenged. She referred to various paragraphs in the claimant’s DIS, noting that those factors indicated a substantial adverse effect. It was not necessary to find all of them present.62.11 Ms Gardiner referred to paragraphs 31 and 32 of her written submissions. Regarding mobility, the claimant gave evidence that she could not drive during flare-ups due to pain. In terms of 'brain fog,' the claimant’s response to the disciplinary allegations showed the process she had to go through, which took weeks and involved her starting and stopping.62.12 Persistent pain and fatigue were referenced at [223] and [258]. The claimant reported pain so severe that she asked to be taken to A&E. Even in May 2019, symptoms were causing significant pain, and the claimant struggled to accept the impact of fibromyalgia.62.13 Medical evidence was summarised at paragraph 33 of the written submissions. Ms Gardiner anticipated criticism of GP notes, but submitted that the GP records do not set out all of the details in the DIS. GP notes are, however, simply records and are not expected to be reviewed years later. Nonetheless, there were repeated and clear references to ongoing stress, anxiety, and pain.62.14 She concluded that there was clear evidence supporting the impact described by the claimant. While it may be tempting to isolate symptoms, the complete picture and consistent reporting showed substantial and long-term adverse effects.[63]Mr Nicholls’ Closing Submissions63.1 Mr Nicholls began by addressing the issue of stress and anxiety. He argued that the Tribunal must see a causal link between the impairment and the adverse effect on day-to-day activities. He noted that the claimant attributed nearly every symptom to both conditions, and submitted that the Tribunal cannot be assured of causation between stress and anxiety and the adverse effects.63.2 Mr Nicholls criticised the DIS, stating that although the Judge at the previous hearing had asked for specific examples of daily activities, they were lacking. The DIS was general and did not specify, for example, which household chores were affected.63.3 He emphasised that the burden of proof lay with the claimant. There was no expert report regarding stress and anxiety, which he argued is crucial in mental health cases. He submitted that the claimant had suffered distinct episodes of stress and anxiety throughout her adult life, but with significant gaps. 23 of 2863.4 Mr Nicholls argued that there was insufficient evidence to establish an impairment. He referred to J v DLA Piper, which he said held that an adverse reaction to life events does not amount to an impairment. He submitted that the claimant’s symptoms were reactions to life events such as issues with her son and employment, and therefore did not constitute a long-term condition.63.5 He further argued that there was no evidence that the stress/anxiety condition lasted or was likely to last 12 months. There was no evidence of recurrence, only discrete and separate episodes of anxiety.63.6 Regarding substantial adverse effects, Mr Nicholls submitted that the claimant’s evidence was unsatisfactory. She attributed the same symptoms to both conditions, which he argued was problematic. For example, she claimed that running was affected by stress and anxiety, but upon further examination, it was due to fibromyalgia. The same applied to gym and dancing activities.63.7 He argued that there was insufficient evidence that stress and anxiety had any impact on day-to-day activities. Medical records did not support a substantial adverse effect, even in general terms. The GP notes recorded that the claimant was well-dressed and wearing makeup, which he argued was inconsistent with her claims of being unable to get dressed.63.8 Mr Nicholls noted inconsistencies in the DIS and submitted that the medical records did not support the claimant’s account in the DIS. There were significant gaps in the medical records, sometimes lasting months. He also pointed out that the claimant was not prescribed any medication, which he argued undermined the seriousness of her condition.63.9 He questioned the Claimant’s claim of struggling with household chores, noting that GP records [238] indicated she had significant caring responsibilities for her son. This, he argued, was inconsistent with someone unable to perform domestic duties.63.10 Mr Nicholls concluded that there was no impairment, no long-term condition, and insufficient evidence of a substantial adverse effect.63.11 Regarding fibromyalgia, he acknowledged that it may constitute an impairment, but argued that the GP evidence was insufficient to show a substantial adverse effect or long-term impact during the relevant period. He reiterated that expert evidence was required but not provided.63.12 Similar points to those made about stress and anxiety applied – the GP notes were even less detailed about symptoms and impact during the relevant period. He emphasised the need for a causal link between the impairment and the alleged inability to undertake activities. 24 of 2863.13 He concluded by noting that the claimant submitted substantial documents in her defence against dismissal and appeal, which he argued undermined her claims of impaired concentration. Discussion and
Conclusion
[64]My decision on the issue of disability is as follows, applying the law and guidance summarised above to the facts as I have found them to be, based on the medical and other evidence before the Tribunal, the burden being on the claimant to establish a disability. I have looked at the four separate conditions and at the “whole picture” (Goodwin). Was there an impairment? (the ‘impairment condition’)[65]I am satisfied, applying the law and guidance summarised above, that the claimant has established that she had impairments during the relevant time, by way of both fibromyalgia (both a physical and mental impairment) and stress/anxiety (a mental impairment). This is abundantly clear from the medical records set out above which refer to the claimant being affected by each of those impairments during the relevant time, and in particular in mid-2023. What were the adverse effects caused by the impairment on normal day-to-day activities? (the ‘adverse effect condition’)[66]The focus is on what the claimant cannot do, not on what she can do. I have found that the following normal day to day activities were affected during the relevant period by the respective impairments: Stressanxiety66.1 Poor sleep, causing fatigue and making the claimant find it difficult get out of bed and start the day with washing and dressing.66.2 Feeling constantly anxious and on the edge of panic affecting her ability to cope with busy shops and so her ability undertake shopping. I also accepted anxiety affected her ability to travel to unfamiliar places on her own. Fibromyalgia66.3 Joint and muscle stiffness and fatigue due to fibromyalgia making household chores more difficult for the claimant.66.4 Brain fog affecting the claimant’s concentration and memory, with the claimant describing the example of her experiencing difficulties preparing a document for her work disciplinary hearing. It took her several weeks to prepare her response to the allegations and she had to repeatedly revisit the document. I consider that dealing with work processes such as a disciplinary process to be a normal day-to-day activity – such processes apply in theory to all employees. 25 of 2866.5 The claimant being unable to sleep restoratively, causing her to feel exhausted during the day, and making tasks like washing and dressing in the morning feel difficult and overwhelming.66.6 The claimant being unable to carry out normal physical activities of dancing, going to the gym and jogging (these activities are normal for many people).[67]Applying the law and guidance above, I am satisfied that the matters in the preceding paragraph amount individually and cumulatively to adverse effects on the claimant’s normal day to day activities. The “substantial” condition[68]Applying the law and guidance above, I am satisfied that the adverse effects which I have found to have occurred the relevant time were all more than minor or trivial, whether viewed individually or cumulatively. This is a relatively low hurdle. They were therefore “substantial”. The “long term” condition (including fluctuating and recurring effect)[69]The “long term” question is whether the substantial adverse effects of an impairment have lasted or are likely to last at least 12 months (including where those adverse effects fluctuate and recur) and is to be answered based upon the evidence available at the relevant time. As I have made clear, evidence of how the claimant’s impairments affected her after that period is not relevant to my assessment and I must not take it into account.[70]Recurring substantial adverse effects are to be treated under the EqA as continuing where they are “likely” to recur, and similarly the adverse effects of an impairment are long term when they are “likely” to last 12 months. Likely means a “real possibility” or “could well happen”.[71]In terms of the stress/anxiety, whilst the claimant was evidently stressed due to the disciplinary proceedings which had commenced in October 2022, the substantial adverse effects of the stress and anxiety only arose when the claimant’s anxiety flared up in mid-2023, due to the combination of the potential disciplinary hearing(s) and the claimant’s son’s serious accident. Those substantial effects had not lasted for 12 months at any point during the relevant time, which ended on 29 September 2023.[72]Could those effects be said to be “likely” to last 12 months at that time? The substantial effects, by the end of September 2023, had lasted just a few months. Those effects appeared to be situational in terms of their cause, arising from the combination of the work disciplinary process and the serious injury to the claimant’s son. I do not find it “likely” (i.e. could well happen) that those substantial effects could be said, at that time, to be likely to last for at least 12 months in their own right, as opposed to merely being a short-term episode of stress/anxiety. There was nothing in the evidence at the time or the claimant’s medical history to suggest that they would. Evidence arising after September 2023 is irrelevant to answering this question. 26 of 28[73]Were the relatively short-lived substantial effects of the stress/anxiety during the relevant time covered by the “recurring” provisions of the EqA, i.e. were they “likely” to recur? There was very little evidence before the Tribunal to support such an argument. There was a brief reference in the GP records to the claimant having had some anxiety in 2000 but no detail of any effects on day-to-day activities at that earlier time; there was evidence of the claimant having taken anti-depressants at some previous point but again no evidence of effects on day-to-day activities at that earlier point; there was a reference in the GP notes to the claimant being stressed in 2018 but again no evidence of effects on day-to-day activities at that point in time. I have not found that there was any substantial adverse effect of stress/anxiety in the period of time from late 2022 until mid-2023 – the claimant was stressed, but no more than that. I find that the claimant has therefore not established that the substantial adverse effects which she experienced in mid2023, due to stress/anxiety were recurring or likely to recur.[74]As such, the claimant has not established that stress/anxiety amounted to a disability during the relevant period, as the substantial adverse effects were not long-term within the meaning of Sch 1 EqA.[75]Turning to the fibromyalgia, I have accepted that the claimant’s fibromyalgia symptoms flared up in mid-2023, affected by the stress which she was experiencing at the time, and caused a substantial adverse effect on her normal day-to-day activities. As with the stress/anxiety, that flare up had not lasted for 12 months in its own right by the end of the relevant time on 29 September 2023.[76]I do not consider that there was sufficient evidence that those substantial adverse effects caused by the flare-up were likely to last 12 months in their own right i.e. until mid-2024, based on the available evidence. The increase in fibromyalgia symptoms appeared to be situational and a result of the stress and anxiety the claimant was experiencing.[77]I do, however, consider that the substantial adverse effects of the fibromyalgia were recurring and likely to recur. Fibromyalgia is a chronic condition. Based on the claimant’s medical history, including a five-year history of substantial symptoms, leading up to the diagnosis of fibromyalgia in 2019, I consider it likely (i.e. could well happen) that the substantial adverse effects of the fibromyalgia experienced by the claimant during that earlier period and during the relevant time in 2023 would recur. So, those effects should be regarded as “continuing” for the purposes of para 2(2) of Sch 1 EqA and taken together (the effects up to 2019 and again in 2023 and the real possibility of future recurrence, based on past history) have lasted and are likely to last for more than 12 months. The “continuing” substantial effects of the fibromyalgia are therefore long-term, within the meaning of para 2(1) of Sch 1 EqA. Conclusion[78]In light of my various findings above: 27 of 2878.1 The claimant has proved that she was disabled, by reason of fibromyalgia in accordance with section 6 of the Equality Act 2010 between 29 April 2023 and 29 September 2023.78.2 The claimant has not proved that she was disabled by reason of anxiety/stress.[79]Stepping back, and looking at the overall picture, I am also satisfied that the claimant should be considered to be disabled under s.6 EqA by reason of fibromyalgia at the relevant time.[80]The claimant’s claims of disability discrimination can proceed, based upon the disability of fibromyalgia.