Mr A O Dailamani v Laing O’Rourke Services Ltd and Bylor Services Ltd: 1400575/2024
EMPLOYMENT TRIBUNALS
Case No 1400575/2024
Between
Mr A O DailamaniClaimant(1) Laing O’Rourke Services Ltd (2) Bylor Services LtdRespondent
Before
Employment Judge WoodheadIn person for claimantMs A Fadipe (instructed by Counsel) for respondentDate 10 June 2025
JUDGMENT
[1]Between October 2021 and 22 November 2021 the Claimant was a disabled person as defined by section 6 Equality Act 2010 because of long COVID because the substantial adverse effects of Long Covid on the Claimant’s day to day activities were likely to last 12 months or more;[2]From May 2023 the Claimant was not a disabled person as defined by section 6 Equality Act 2010 because long COVID by this time no longer continued to have a substantial adverse effect on the Claimant’s day to day activities and was unlikely to recur.
REASONS
The Law
[3]The Respondent has conceded that during the relevant period the Claimant had the following disabilities:3.1 OCD 1 of 183.2 Depression3.3 Anxiety[4]At the hearing the Respondent further conceded that the Claimant had Long Covid and that his impairment amounted to a disability between 23 November 2021 and April 2023 inclusive (“the Accepted Period”) and the only points of dispute on disability that needed to be resolved were:4.1 Between October 2021 and 22 November 2021 (a period before the Accepted Period and which was also a period relevant to the issues in the claim) were the substantial adverse effects of Long Covid on the Claimant’s day to day activities likely to last 12 months or more (it being accepted that the adverse effects were substantial from 23 November 2021 and likely to last more than 12 months from that date);4.2 Did Long Covid continue to have a substantial adverse effect on the Claimant’s day to day activities from May 2023 (the Respondent’s position being that the symptoms had eased by that time).
THE HEARING
[5]The sequence of events at the hearing and the procedural background to the claim does not need to be recorded in this public Judgment and is set out in the Case Management Order sent to the parties after this hearing. Suffice to say that:5.1 I was provided with a bundle of 672 pages ([Page Number]);5.2 The parties made clear that I should read the following documents: 101 to 111, 451, 452, 460, 476, 478, 485, 587, 590-594, 604-606, 610-614, 613, 626, 635, 637-639 and 666-667 together with the Claimant’s disability impact statement of 11 September 2024 at 120 – 137. Some of these pages were duplicative. I do not refer to all of those documents in my findings of fact but I read them.5.3 The Claimant gave evidence and both parties made submissions.5.4 The decision on the question of disability was reserved.
FINDINGS OF FACT
[6]Having considered all the evidence, I find the following facts on a balance of probabilities.[7]The parties will note that not all the matters that they told me about are recorded in my findings of fact. That is because I have limited them to points that are relevant to the legal issues. 2 of 18[8]It is of course difficult to entirely distinguish between symptoms caused by long COVID and those caused by the Claimant’s other disabilities (including OCD which can lead to the Claimant not sleeping for extended periods of time). As is further noted below, “A person may have more than one impairment, any one of which alone would not have a substantial effect. In such a case, account should be taken of whether the impairments together have a substantial effect overall on the person’s ability to carry out normal day-to-day activities.” ACAS guidance[9]ACAS guidance available in April 2022 (but which is likely to have been available from an earlier date) makes clear [590-594]: “People can experience the effects of long COVID for weeks, months and even years. Symptoms can: - come and go over time - sometimes get better and sometimes worse.” June 2021 – Claimant contracts COVID[10]The Claimant tested positive for COVID on 25 June 2021 and his symptoms of Long Covid started in July/August 2021. The symptoms and effects on day to day activities included:10.1 chronic fatigue – this was not alleviated by rest and greatly reduced the Claimant’s physical endurance and ability to carry out even basic tasks.10.2 breathlessness- the Claimant experienced frequent episodes of breathlessness, particularly when engaging in physical activities. This further limited his ability to perform tasks that require sustained physical effort.10.3 muscle and joint pain: this exacerbated the physical limitations caused by fatigue and breathlessness.10.4 brain fog: this caused the Claimant difficulty with concentration, memory, and clarity of thought and severely impacted his ability to focus on workrelated tasks, make decisions, and process information efficiently.10.5 cognitive fatigue: this made it difficult for the Claimant to engage in prolonged mental tasks or maintain focus during meetings and other work activities.10.6 headaches.[11]More generally these symptoms greatly reduced the Claimant’s ability to perform his work duties effectively. He had to take frequent breaks and his productivity 3 of 18 was significantly affected. In his daily life the symptoms limited his ability to engage in social activities, maintain a regular exercise routine, and manage household responsibilities. August 2021 fit note[12]On 4 August 2021 [451] a fit note request form recorded amongst other things: “I tested positive for covid at work on 25/07/2021 [the Claimant accepted this was a mistake and should have read 25 June 2021]. I developed sever chest pain, headache, fatigue and tiredness four weeks after. I have lost so much weight. I don't eat as much as before. I can't taste or smell anything. I can't wake up in the mornings.”. November 2021 GP consultation and OH report[13]On 23 November 2021 the Claimant had a consultation with his GP. The notes of the consultation make clear that by this time the Claimant’s chest pains and headaches had resolved but he was still experiencing fatigue, was finding it difficult to get up, was experiencing dizziness and had to go back to bed because he was so tired. He was taking sertraline to help him sleep and cope with work stress [478]. This is the point from which the Respondent accepts that the Claimant had long COVID, that it was having a substantial adverse effect on his normal day to day activities and that those substantial adverse effects were likely to last 12 months or more.[14]On 30 November 2021 an Occupational Health (OH) report recorded, amongst other things (emphasis added) [485]: The purpose of this management referral was to address questions around work-related stress and long Covid. […] He continues to experience significant fatigue that is attributed to a diagnosis of long Covid made by his GP. He is also suffering from an episode of mild-to-moderate depression for which he has sought help from his GP. He has been prescribed an antidepressant medication and is awaiting talking therapies. His depression may also be a contributory factor to his fatigue. He remains under the care of his GP for both his long Covid and depression, and will be reviewed on a regular basis. He finds his fatigue most problematic first thing in the mornings. Because of this he has found the early start times at work difficult, particularly given the added travelling time to site. The difficulty that he is having with the early starts is causing him some work-related stress. 4 of 18 Additional sources of work stress are arising from having to work additional hours over his contracted hours, the fatigue from travelling, and some difficulties in claiming back his expenses. Although these are non-medical matters and resolution of them remains outside my remit, I feel it prudent to mention them here since addressing them is likely to be an important element in reducing his work-related stresses. Opinion: Afshin remains fit for work, but I make the following recommendations for adjustments. Because of his fatigue that is causing problems in the morning, I would recommend a flexible working pattern to include later start times. In addition, a hybrid working pattern to include some working from home may also benefit him. The feasibility of implementing such recommendations, of course remains, a management decision. Additionally, other non-medical sources of work-related stress need to be identified and discussed, and is so far as practical, mitigations put in place. It is hopeful that with appropriate treatment and support his medical conditions will improve, and therefore the above recommendations should be seen adjustments for the coming weeks and months, rather than being long term. I would recommend line management reviews the situation in a couple of months’ time. Talking therapy remains an important tool in his treatment. In addition to the NHS provided talking therapy for which he is still waiting, he may also wish to access talking therapies through the EAP programme or the lighthouse construction workers charity, to which he was signposted. December 2021 GP letter to BUPA long COVID specialist[15]A GP letter of 24 December 2021 to a BUPA long COVID specialist records: [667]: This 38-year-old gentleman developed COVID-19 in June 2021 and his symptoms lasted for the whole month. He later complained of chest pains and headaches but these have now resolved. However, he remains fatigued which has been persisting since the Covid onset-He has been working 6 days per week and required to work from 7am to 6pm, however, in his current state, he is finding these hours very difficult. He finds getting up in mornings difficult and feels dizzy when negotiating the stairs, Having had a wash, he feels exhausted and has to get baack into bed. Social: He is a non-smokerand drinker. He was commenced on Sertraline recently for OCD which he finds 5 of 18 helpful with sleep at night and being able to cope with stress at work. Family Hisotry: Nil of note. Examination: Urine dip: NAD. MSU. Had full set of bloods, low Vitamin D for which he has been advised two separate doses of in] 3m apart. Ferritin raised at 397 (not on supplements). E5R/CRP normal CXR done Aug 2021 normal. ECG also normal. Diagnosis: ? long covid symptoms. April 2022[16]On 1 April 2022 the Claimant sent the Respondent an email which said, amongst other things [587]: Following my email yesterday, I would like to let you know I am not feeling well and after speaking with my GP, they have booked an appointment on Monday to see a doctor and another appointments for tests. […] Right now I'm not feeling well. I can't eat. I can't sleep. I have back pain and I feel tired and short of breath after walking for 5-10 minutes to the GP surgery. […] I think I need to see what doctors tell me. The post covid appointment they have given me I on 16 May and they weren't able to give me a sooner appointment. […] However, I don't know when I feel well as it takes time and I still haven't been given any medication. I think I have been ignoring it and kept coming to work and I am getting worse day by day. […] Regardless, I feel disabled by this ongoing health issue which is possibly a post covid situation. […][17]A fit note issued on an assessment carried out on 12 April 2022 recorded that the Claimant was suffering from depression, grief, long COVID and work stress and was not fit for work until 11 May 2022 [666-667]. 6 of 18 March 2023 OH report[18]On 21 March 2023 an OH prepared a report [604-606] which said, amongst other things: […] Current Position Mr Dailamani tells me that he has been working permanently from home since September 2022. On further discussion with him, it became very evident that there are a number of work-related stressors which seem to be causing him anxiety, low mood and difficulty sleeping. He attributes these stressors to excessive travel, financial difficulties as a result of travel, lack of job description/role responsibility and an overall feeling of management not supporting him. I understand there is currently a pending grievance regarding these stressors. Mr Dailamani reports his current symptoms as fatigue, low mood and anxiety. His post Covid symptoms, mainly fatigue and leg numbness have improved although he does still report they are somewhat present. He also tells me that he has had a diagnosis in the past of OCD and depression. He is currently on treatment for this and has previously undergone talking therapies. Recommendations/advice Based on today’s assessment, I am of the opinion that Mr Dailamani is fit for work with the following advice: I recommend that an individual internal stress risk assessment is carried out to identify the specific stressors at work and to ensure control measures are put in place or please review the stress risk assessment if already completed. If you do not have access to a stress risk assessment internally, you can find a template at: https://www.hse.gov.uk/stress/risk-assessment.htm The main issues appear to be around travel, job description/expectation and a current pending grievance. These need to be addressed and stressors minimised where reasonably practicable. If operationally possible, working from home would be recommend as he has found his health has improved since doing this however this is ultimately a management decision. If his job is not able to be performed at home, this is a capability issue which I would recommend you seek HR guidance on. Please note the above recommendations are for your consideration only, it is ultimately a business decision as to what you deem to be reasonable and/or operationally feasible. 7 of 18 This condition (work related stress) is unlikely to come under the Equality Act as it is unlikely to have a long-term significant impact on Mr Dailamani’s day to day activities. However, ultimately this would be a legal decision and not a medical opinion. Response to specific questions: There were no other specific questions asked in this referral, please see next section for further advice. Signposting and self-management Mr Dailamani appears to be managing his overall health and wellbeing. The following weblinks may be of some benefit to both yourself and Mr Dailamani: […] May 2023 GP note[19]A GP note of 12 May 2023 [610] recorded: I had a phone consultantion with Mr Afshin Ostovarni Dailamani today. He reports he is going through a grievance process at work and requires a letter to confirm his medical diagnosis. He suffers from Long covid last year and was seen by the respiratory specialist. He generally reports that his I symptoms have improved but some remain. He has been diagnosed with OCD and, anxiety and depression. He reports he is currently suffering severely with this. He reports the main reason is related to work. This has lead to a medication change and the dose has been increased further. June 2023 OH report[20]On 9 June 2023 an OH prepared a report [611-614] which said, amongst other things: […] It was apparent from today’s assessment that there continue to be a number of significant stresses in Afshin’s life that are causing him considerable distress and which are resulting in a deterioration in his mental well-being; Afshin reports symptoms consistent with anxiety and depression. The sources of Afshin’s stress appear to be work-related and he recounted these in some detail to me this morning. It seems apparent that there has been a significant deterioration in the employer and 8 of 18 employee relationship because of a number of perceived grievances which remain unresolved. It seems that it is both the breakdown in the employer - employee relationship and the consequent effect on his mental well-being that is the primary barrier to him returning to sitebased working. Afshin’s mental health is currently being treated by his GP and he continues to take medication as prescribed. He received some talking therapy last year. Further sources of support for his mental health are available and were detailed in previous occupational health nurse report which Afshin received a copy of. Opinion: I agree with the recommendations and advice given in the previous OH nurse letter. In response to your specific enquiries about the likelihood of Afshin being able to fulfil a site-based role I respond as follows. I believe that the unresolved and ongoing perceived grievances between employer and employee, with the consequent effect they are having on his mental wellbeing, pose the primary barrier to Afshin returning to a site-based role. Until these barriers are resolved I think the likelihood of Afshin being able to return turn to site-based working in foreseeable future is low. In the meantime, it is probable that he would be able to undertake home-based working as an adjustment. However, the suitability and sustainability of supporting home-based working in the long term remains a management decision rather than a medical one. […] July 2023 GP letter to private psychiatrist[21]A letter of 19 July 2023 from the Claimant’s GP to a private psychiatrist recorded [460/613] in the medical history “16 May 22, Post-acute COVID-19 (Y31f0)”. November 2023 – December 2023 mental health crisis[22]A letter of 6 November 2023 [642-645] sent by Kent and Medway Mental Health Crisis Line to the Claimant’s G.P. recorded “Worsening OCD rituals which has overtaken his life. Stated he can go for 2-3 days without sleeping/ eating while performing the rituals”. In cross examination of the Claimant the Respondent suggested that the Claimant would go for days without sleeping or eating because of his OCD rituals and that was the cause of his fatigue rather than long COVID. In reply the Claimant said that his mental health and long COVID were co-morbid and he later submitted that long COVID was not mentioned in the letter because it was a letter from a mental health service focused on that aspect of the Claimant’s health.[23]A letter from the Medway Community Mental Health Team of 4 December 2023 9 of 18 [463-464] recorded what was discussed at a consultation on 15 November 2023 and did not make reference to long COVID. April 2024 enquiry to consultant psychiatrist[24]At [621 to 628] was an initial enquiry form that the Claimant had completed in April 2024 to be sent to a Consultant Adult & Addiction Psychiatrist. The focus in the form was on the strain that the Claimant’s OCD compulsions were having on him. On the form the Claimant wrote [626]: “I had Long Covid or at least had symptoms of Long Covid since 2021 and was seen by the Long Covid clinic in 2022. I don’t think it is gone but I don’t think the clinic offered or recommended any follow up appointment as I was not contacted by my GP again.”. July to November 2024[25]A letter of 3 July 2024 from Kent & Medway Talking Therapies to the Claimant focused on the difficulties the Claimant was having with OCD and the exhaustion caused by his rituals. It did not refer to long COVID.[26]A letter of 1 November 2024 ‘to whom it may concern’ from a consultant psychiatrist and medical; psychotherapist [637-639] recorded: “[...] Afshin shared that he did disclose his OCD, Depression and Anxiety and Long Covid and Bereavement and PTSD with his employer, so they were aware of them. Afshin shared a long self-made report of how his difficulties affect him and the level of disability seems understandable and masks his diagnosis and the level severity though his self-report and the outcome measures we have completed. […]”
THE LAW
[27]The definition of disability is found in section 6 of the Equality Act 2010, which states: “6 Disability (1)A person (P) has a disability if— (a)P has a physical or mental impairment, and (b)the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. (2)A reference to a disabled person is a reference to a person who has a disability. (3)In relation to the protected characteristic of disability— 10 of 18 (a)a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b)a reference to persons who share a protected characteristic is a reference to persons who have the same disability. (4)This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a)a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b)a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability. (5)A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1). (6)Schedule 1 (disability: supplementary provision) has effect.”[28]The Tribunal is obliged to take into account statutory guidance and any relevant codes of practice about the issue of disability.[29]Following the case of Goodwin v Patent Office [1999] ICR 302 the EAT laid down detailed guidance on how this Tribunal should evaluate and decide the issue of disability. The following key points of guidance are given:29.1 Specific reference should be made to the pleadings and the issues clarified before the issue of disability is decided;29.2 When taking into account any part of statutory guidance or statutory code, the Tribunal should expressly refer to each section relevant to making its decision;29.3 If an activity can still be performed with difficulty and great effort, that does not mean the ability to do the activity is not impaired;29.4 Account must be taken of the fact that many people play down the effects their impairments have on them;29.5 The tribunal should take into account how a person manages their condition;29.6 There should be no single focus on a narrow set of activities such as for example housework. How the impairment affects someone in all aspects of their normal lives should be looked at both at home, outside of home and in the workplace; 11 of 1829.7 If medication or other treatment is helping to treat the impairment, the tribunal should take into account both the situation whilst medication for example is being taken and what the effects would be if the medication or other treatment was not being taken or taking place;29.8 The tribunal should never lose sight of the overall picture when coming to its decision about the specific parts of the disability statutory test. The relevant date[30]The Tribunal must apply the statutory test for disability at the date the alleged discrimination took place and not at the date of the hearing determining the issues Cruikshank v VAW Motorcast limited [2002] IRLR 24.[31]It has also been clarified that when looking at the relevant date, the only evidence that is admissible in applying the long term part of the test, is evidence of facts and circumstances that existed at the date of the alleged discrimination or before it. Looking at evidence of facts and circumstances dating from after the relevant date, to determine the test as at the relevant date, is impermissible hindsight All Answers Limited v W and R [2021] EWCA Civ 606. Impairments[32]Physical and mental impairments are treated differently by past and binding case law.[33]Whether an impairment has an adverse effect alleged, is a causation question to be determined objectively by the tribunal Dias Da Silva Primas v Carl Room Restaurants Limited t/a McDonalds restaurants Ltd and others [2022] IRLR 94.[34]The Guidance deals with the definition of an impairment at paragraphs A3 – A8.34.1 A3 says “…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.”34.2 A4 says “Whether a person is disabled for the purposes of the Act is generally determined by reference to the effect that an impairment has on that person’s ability to carry out normal day-to-day activities. An exception to this is a person with severe disfigurement (see paragraph B24). It is not possible to provide an exhaustive list of conditions that qualify as impairments for the purposes of the Act. Any attempt to do so would inevitably become out of date as medical knowledge advanced.”34.3 A5 lists different types of impairments that can exist.34.4 A6 says “It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a mental impairment.” It is therefore sufficient for a Claimant to establish simply that there was an impairment. 12 of 18 It is not necessary to prove it was either a physical or mental one.34.5 A7 says “It is not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded.”34.6 A8 says “It is important to remember that not all impairments are readily identifiable. While some impairments, particularly visible ones, are easy to identify, there are many which are not so immediately obvious, for example some mental health conditions and learning disabilities.”[35]In situations where there is clearly a physical impairment, but the medical cause is unknown, the focus is on the effects of the condition, not identifying the condition itself College of Ripon and York St John v Hobbs [2002] IRLR 185 EAT. Substantial adverse impact[36]To determine this point, the correct approach is to ask the question of what the Claimants ability to undertake the day-to-day activity would be, if they did not have the impairment Elliott v Dorset County Council [2021] IRLR 880.[37]If the impact is more than minor or trivial, then it must be deemed to be substantial Aderemi v London and South Eastern Railway Limited [2013] ICR 591.[38]The guidance at paragraphs B2 – B6 states that the tribunal should take into account the time taken to do the activity, the way it is carried out, the cumulative effects of the impairment in question and paragraph B11 requires the tribunal to also consider environmental factors that may trigger the impairment, make it better or make it worse.38.1 B2 says “The time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time it might take a person who did not have the impairment to complete an activity.”38.2 B4 says “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, when taken together, could result in an overall substantial adverse effect.”38.3 B6 says “ A person may have more than one impairment, any one of which alone would not have a substantial effect. In such a case, account should be taken of whether the impairments together have a substantial effect overall on the person’s ability to carry out normal day-to-day activities.”38.4 Paragraphs B7 – B9 deal with what a person can reasonably be expected to do to cope with an impairment before it is deemed to have a substantial 13 of 18 effect.38.5 B7 says “Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day-to-day activities.”[39]Coping strategies can amount to measures taken in the same way as medical treatment when considering deduced effects as per Elliott above.[40]Where two or more impairments are relied upon which together but do not individually cause the substantial impact, the overall effect of all the impairments should be considered Ginn v Tesco Stores Limited [2005] All ER (D) 259 (Oct).[41]When considering the effects of treatment, these are to be ignored for the purposes of determining the impact and the correct test is to determine whether the impact alleged could well happen but for the treatment SCA Packaging v Boyle [2009] UKHL 37.[42]It is also important to note that there needs to be medical evidence to prove what could well happen as a deduced effect if treatment were stopped. A mere assertion by an employee that something could well happen is unlikely to be sufficient Woodrup v Southwark London Borough Council [2003] IRLR 111 CA.[43]Paragraph B12 of the guidance also says: “The Act provides that, where an impairment is subject to treatment 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. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’. The practical effect of this provision is that the impairment should be treated as having the effect that it would have without the measures in question (Sch1, Para 5(1)). The Act 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 paragraphs B7 and B16.)”[44]B16 says: 14 of 18 44.1 “Account should be taken of where the effect of the continuing medical treatment is to create a permanent improvement rather than a temporary improvement. It is necessary to consider whether, as a consequence of the treatment, the impairment would cease to have a substantial adverse effect. For example, a person who develops pneumonia may be admitted to hospital for treatment including a course of antibiotics. This cures the impairment and no substantial effects remain.”[45]The correct question when deducing effects is what would happen if treatment had stopped at the relevant date, not what would have happened if treatment had never been received at all Abadeh v British Telecommunications Plc [2001] IRLR 23.[46]In the same case, it was also decided that the deduced effect argument was only applicable if at the relevant date, treatment was still ongoing. Deduced effects are not applicable where treatment had ceased at the relevant date.[47]If a person has been cured by the relevant date, then they can only allege that they were disabled in the past as at paragraph B17 of the guidance or there was a perceived disability if the alleged discriminator did not know they had been cured. If disability is perceived, then the perception must have all the features of the statutory test for it to found a case of disability discrimination Chief Constable of Norfolk v Coffey [2019] EWCA Civ 1061. Long term[48]Relevant parts of Schedule 1 say: “2 Long-term effects (1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b)it is likely to last for at least 12 months, or (c)it is likely to last for the rest of the life of the person affected. (2)If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. (3)For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed. (4)Regulations may prescribe circumstances in which, despite subparagraph (1), an effect is to be treated as being, or as not being, long- term.” 15 of 18[49]When considering this issue and it is clear that an impairment has not lasted for 12 months, the tribunal is usually required to take a broad rather than narrow view of the evidence and must consider the reality of risk of whether the effects of the impairment “could well happen” rather than focussing on the diagnosis itself from medical evidence. Consequently, if there is a diagnosed or present impairment that has not yet lasted 12 months, then it will be a long term condition if the proven effects complained about could well happen Nissa v Waverly Education Foundation Limited and another UKEAT/0135/18/DA. Normal day to day activities[50]The guidance addresses this issue at paragraph D3 and states that normal day to day activities are things that people do on a daily or regular basis in all aspects of their lives.[51]D4 states that this definition is not intended to include things that are simply normal for an individual or a small group of people. But in accordance with paragraph D5 a normal activity does not have to be done by the majority of people.[52]The emphasis when looking at activities is to pay attention to things the Claimant cannot do rather than what they can do and it is incorrect in law to apply a balancing or setting off exercise between things the Claimant can do and those they can’t to produce an overall picture Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19.[53]Conducting litigation is not a normal day to day activity. Therefore if the Tribunal makes adjustments for a party, it is not then bound to find that they were disabled at the relevant time Herry v Dudley MBC and another UKEAT/100/16. ANALYSIS AND CONCLUSIONS Between October 2021 and 22 November 2021[54]The Claimant was disabled during the period between October 2021 and 22 November 2021 because of his depression, anxiety disorder and OCD, as has been conceded by the Respondent. The Claimant also had long COVID between these dates and it is clear that long COVID exacerbated the effects of his existing impairments, in particular by making his mental and physical fatigue more acute. Long COVID therefore, between October 2021 and November 2021 exacerbated the substantial adverse effects of the Claimant’s existing disabilities.[55]The Respondent rightly accepted that a formal diagnosis from prior to 23 November 2023 was not necessary to establish that long COVID amounted, in its own right (i.e. leaving aside the effects of the Claimant’s other disabilities), to a disability before 23 November 2021.[56]I conclude that the Claimant was a disabled person as defined by section 6 Equality Act 2010 because of long COVID, its own right, because the substantial 16 of 18 adverse effects of long COVID on the Claimant’s day to day activities were likely to last 12 months or more by October 2021. I reach this conclusion because:56.1 by October 2021 it was known (the pandemic having started in Spring 2020) that long COVID was likely to be long lasting in those suffering from it (whilst from the later date of April 2022, in reaching this conclusion I also refer to the section of the ACAS guidance quoted in my findings of fact).56.2 even if there was no formal diagnosis, it was clear by that point (more than three months after he tested positive for the virus) that the Claimant continued to experience COVID symptoms (in particular fatigue) (see in particular the fit note of 4 August 2021 [451]);56.3 the significant impact of the Claimant’s other conditions made it more likely that the symptoms of long COVID would last 12 months or more for the Claimant. From May 2023[57]Again, the Claimant was disabled after May 2023 because of his depression, anxiety disorder and OCD, as has been conceded by the Respondent. The symptoms of those conditions overlapped with long COVID symptoms, in particular as regards mental and physical fatigue.[58]By March 2023 it is clear that the Claimant felt that his long COVID symptoms had improved but were still “somewhat present”. By May 2023 the Claimant again reported that the symptoms had improved but some unspecified symptoms remained.[59]Long COVID was not then mentioned in the OH report of June 2023 or subsequent documentation (except as an historic condition) and it is clear that the Claimant started to experience worsening of his OCD symptoms through 2023 and that condition and its impacts became his predominant concern.[60]I understand the submission made by the Claimant that documents created after June 2023 were focused on his mental health and therefore were not focused on long COVID or directed to or created by long COVID specialists. However, I do not consider that long COVID was irrelevant to his state of mental health. Long COVID symptoms would, it seems to me, have a significant potential impact on a person’s mental health. It would therefore be important for a mental health practitioner, the Claimant’s GP and OH to know if the Claimant continued to experience long COVID symptoms. It would of course be difficult for the Claimant or a medical practitioner to establish whether a particular symptom (such as fatigue) was attributable to long COVID or another of the Claimant’s disabilities (e.g. fatigue from performing OCD rituals for prolonged periods or depression).[61]Taking into account the comment that the Claimant later made, in his April 2024 enquiry to a consultant psychiatrist (saying in respect of long COVID “I don’t 17 of 18 think it is gone but I don’t think the clinic offered or recommended any follow up appointment as I was not contacted by my GP again.”), I to not consider that the Claimant has established that after May 2023 long COVID continued to be an impairment that was having a substantial long term adverse effect on his day to day activities. Had it been I consider that he would have sought further support from long COVID specialists and consider that it would have been referred to as an ongoing condition in subsequent medical records (including those focused on his mental health).[62]I therefore find that after May 2023 the Claimant was not a disabled person as defined by section 6 Equality Act 2010 because long COVID by this time no longer continued to have a substantial adverse effect on the Claimant’s day to day activities and there is no medical evidence that it was likely to recur or did in fact recur. CERTIFICATE OF CORRECTION Employment Tribunals Rules of Procedure 2013 Under Rule 67, the judgment sent to the parties on 10 December 2025, is corrected as follows to remove an erroneous reference in paragraph 2 of the judgment. RECONSIDERATON JUDGMENT[1]The claimant’s application dated 21 July 2025 for reconsideration of the judgment sent to the parties on 7 July 2025 is refused.[2]I have undertaken preliminary consideration of the claimant's application for reconsideration of the judgment sent to the parties on 7 July 2025 (“the Judgment”). That application is comprised of a number of documents including a document sent by email on 21 July 2025. 1 of 5
THE LAW
[3]Rules 68 to 71 of The Employment Tribunal Procedure Rules 2024 (the “Rules”) provide: Reconsideration of judgments Principles 68.—(1) The Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. (2) A judgment under reconsideration may be confirmed, varied or revoked. (3) If the judgment under reconsideration is revoked the Tribunal may take the decision again. In doing so, the Tribunal is not required to come to the same conclusion. Application for reconsideration 69. Except where it is made in the course of a hearing, an application for reconsideration must be made in writing setting out why reconsideration is necessary and must be sent to the Tribunal within 14 days of the later of—(a) the date on which the written record of the judgment sought to be reconsidered was sent to the parties, or(b) the date that the written reasons were sent, if these were sent separately. Process for reconsideration 70.—(1) The Tribunal must consider any application made under rule 69 (application for reconsideration). (2) If the Tribunal considers that there is no reasonable prospect of the judgment being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application must be refused and the Tribunal must inform the parties of the refusal. (3) If the application has not been refused under paragraph (2), the Tribunal must send a notice to the parties specifying the period by which any written representations in respect of the application must be received by the Tribunal, and seeking the views of the parties on whether the application can be determined without a hearing. The notice may also set out the Tribunal’s provisional views on the application. 2 of 5 (4) If the application has not been refused under paragraph (2), the judgment must be reconsidered at a hearing unless the Tribunal considers, having regard to any written representations provided under paragraph (3), that a hearing is not necessary in the interests of justice. (5) If the Tribunal determines the application without a hearing the parties must be given a reasonable opportunity to make further written representations in respect of the application. Reconsideration by the Tribunal on its own initiative 71. Where the Tribunal proposes to reconsider a judgment on its own initiative, it must inform the parties of the reasons why the decision is being reconsidered and the judgment must be reconsidered (as if an application had been made and not refused) in accordance with rule 70(3) to (5) (process for reconsideration).[4]An application for reconsideration is an exception to the general principle that (subject to appeal on a point of law) a decision of an Employment Tribunal is final. The test is whether it is necessary in the interests of justice to reconsider the judgment (Rule 68).[5]Rule 70(2) empowers me to refuse the application based on preliminary consideration if there is no reasonable prospect of the original decision being varied or revoked.[6]The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor [2016] EWCA Civ 714 in July 2016 where Elias LJ said that: “the discretion to act in the interests of justice is not open-ended; it should be exercised in a principled way, and the earlier case law cannot be ignored. In particular, the courts have emphasised the importance of finality (Flint v Eastern Electricity Board [1975] ICR 395) which militates against the discretion being exercised too readily; and in Lindsay v Ironsides Ray and Vials [1994] ICR 384 Mummery J held that the failure of a party's representative to draw attention to a particular argument will not generally justify granting a review.”[7]Similarly in Liddington v 2Gether NHS Foundation Trust EAT/0002/16 the EAT chaired by Simler P said in paragraph 34 that: “a request for reconsideration is not an opportunity for a party to seek to re-litigate matters that have already been litigated, or to reargue matters in a different way or by adopting points previously omitted. There is an underlying public policy principle in all judicial proceedings that there should be finality in litigation, and reconsideration applications are a limited exception to that rule. They are not a means by which to have a second bite at the cherry, nor are they intended to provide parties with the opportunity of a rehearing at which the same evidence and the same arguments can be rehearsed but with different emphasis or additional evidence that was previously available being tendered.” 3 of 5[8]In common with all powers under the Rules, preliminary consideration under Rule 70 (2) must be conducted in accordance with the overriding objective which appears in Rule 3. The Application[9]I apologise to the parties for the delay in considering the application for reconsideration. The delay arose because I was not aware that the application had been made until early December 2025. I have then needed to find space in my work schedule to turn my proper attention to it and reach this decision on it.[10]As I note above, preliminary assessment of an application for reconsideration must be carried out in accordance with Rule 3 (which requires that cases are dealt with fairly and justly). This includes dealing with cases in ways which are proportionate to the complexity and importance of the issues, and avoiding delay. Achieving finality in litigation is part of a fair and just adjudication.[11]I have given full and proper consideration to the grounds set out by the Claimant but conclude that they are either:11.1 points which were argued at the hearing and which, if there was an error of law, should be corrected on appeal (and I note that the Claimant has exercised that right in an appeal to the Employment Appeal Tribunal); or11.2 attempts to re-open issues on which the Tribunal heard from both sides at the hearing and made a determination. In that sense they represent a “second bite at the cherry” which undermines the principle of finality. Such attempts have a reasonable prospect of resulting in the decision being varied or revoked only if the Tribunal has missed something important, or if there is new evidence available which could not reasonably have been put forward at the hearing. A Tribunal will not reconsider a finding of fact just because the claimant wishes it had gone in his favour. Whilst taking into account the other grounds set out by the Claimant I note that the burden of proof was on the Claimant at the hearing.[12]I mean no disrespect to the Claimant in giving these brief reasons for my decision on his application. I have had to take into account the need for proportionality (not only as regards the parties and issues in this claim but also as regards the interests of the many other Tribunal service users).
Conclusion
[13]Having considered all the points made by the claimant I am satisfied that there is no reasonable prospect of the original decision being varied or revoked. The points of significance were considered and addressed at the hearing. The application for reconsideration is refused. 4 of 5