Mrs Rosemary Garnham v Isle of Wight Council and The Governing Body of Greenmount Primary School: 1400621/2018
EMPLOYMENT TRIBUNALS
Case No 1400621/2018
Between
Mrs Rosemary GarnhamClaimantIsle of Wight Council and The Governing Body of Greenmount Primary SchoolRespondent
Before
Employment Judge CraftMr N Kennan (instructed by Counsel) for claimantMr M Curtis (instructed by Counsel) for respondentDate 11 December 2018
REASONS
[1]By a claim form presented on 18 February 2014, the Claimant pursues complaints of unfair dismissal and discrimination on grounds of disability, all of which the Respondent defends. The full hearing of this case has been fixed to commence on 26 November next and a preliminary issue needs to be determined in advance of that hearing. The Preliminary Issue[2]The Claimant alleged that she is disabled by reason of Type 2 diabetes; stress and anxiety and severely restricted vision in her left eye. At a Telephone Case Management Preliminary Hearing on 27 April 2018 the Respondent confirmed that it conceded that the Type 2 diabetes relied on by the Claimant was a disability but disputed that the alleged stress and anxiety and restricted vision relied upon satisfied the definition of disability within the meaning of the Equality Act 2010 (the 'EqA'). It was agreed that this case would be listed for a one day Preliminary Hearing to determine if the Claimant is a disabled person within the meaning of the EqA 2010 by reason of her stress and anxiety and visual impairment at the relevant time which is from the beginning of March to 21 December 2017.
The Evidence
[3]There was an agreed Bundle of Documents (Exhibit R1). The Bundle contained the Claimant's GP's medical records and correspondence relating to the two conditions to be considered. The Claimant had filed a Disability Impact Statement (Exhibit C1) and the Respondent had filed a document setting out its position on the Claimant's disability in accordance with the Employment Tribunal's direction. (Exhibit R2). The Employment Tribunal received oral evidence from the Claimant. It then received oral submissions from Mr Curtis and Mr Kennan. The Tribunal was referred to the following cases: J v DLA Piper UKLLP [2010] IRLR 936 Herry v Dudley Metropolitan Council; Herry v Dudley Metropolitan Borough Council and another UKEAT/0100/16/LA The Employment Tribunal reserved its judgment on this preliminary issue at the conclusion of the hearing.[4]At the commencement of the hearing Mr Kennan confirmed that the Claimant's claim as to visual impairment was no longer pursued by the Claimant. Therefore, the remaining issue before the Tribunal was whether the Claimant was disabled by reason of stress and anxiety at the relevant time. The Respondent's position on this point was that a review of GP records shows that on a number of occasions the Claimant has suffered with low moods / stress as a response to one of more adverse life events. It does not accept the Claimant has a mental health condition or that the Claimant's condition had a substantial adverse effect on her day-to-day activities or that the Claimant's condition was long term. It submits that the medical records demonstrate that there is a substantial adverse effect only occasionally and there is nothing to suggest that the substantial effect is likely to recur nor that it is part of an underlying condition.
The Law
[5]There is no statutory definition of either a "physical impairment" or a "mental impairment" in the EqA and nor is there any definition in The Guidance or the EHRC Employment Code. The Court of Appeal has held that impairment should bear its ordinary and natural meaning. It has also stated: "It is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the applicant has a physical or mental impairment with the stated effects." It went on to explain that it is generally accepted that the term is meant to have a broad application and Part A3 of The Guidance tends to support this view. It states that in many cases there will be no dispute as to whether a person has an impairment, adding that any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition. It is the degree to which a person is affected by a particular impairment that in most cases will determine whether that person is afforded the protection of the EqA.[6]The impairment must have a "substantial adverse effect" on the person's ability to carry out normal day-to-day activities. Substantial is defined in S.212(1) EqA as meaning "more than minor or trivial". Appendix 1 to the EHRC Employment Code provides guidance on the meaning of "substantial". It states: "The requirement that an effect must be substantial reflects the general understanding of a disability's limitation going beyond the normal differences in ability which might exist among people. Account should also be taken of where a person avoids doing things which, for example, causes pain, fatigue or substantial social embarrassment; or because of a loss of energy and motivation."[7]In Goodwin v Patent Office 1999 ICR 302 EAT, the Employment Appeal Tribunal ('EAT') said that, of the four component parts to the definition of a disability in what was then the Disability Discrimination Act 1998, judging whether the effects of a condition are substantial is the most difficult. In its explanation of the requirement the EAT stated, inter alia, as follows: "What the Act is concerned with is an impairment on the person's ability to carry out activities. The fact that a person can carry out such activities does not mean that his ability to carry them out has not been impaired. Thus, for example, a person may be able to cook, but only with the greatest difficulty. In order to constitute an adverse effect, it is not the doing of the act which is the focus of attention but rather the ability to do (or not to do) the acts. Experience shows that disabled persons often adjust their lives and circumstances to enable them to cope for themselves."[8]When determining whether a person meets the definition of disability under the EqA, the Guidance emphasises that it is important to focus on what an individual cannot do or can only do with difficulty rather than on the things that he or she can do. As the EAT also pointed out in the Goodwin case, even though a Claimant may be able to perform a lot of activities, the impairment may still have a substantial adverse effect on other activities, with the result that a Claimant is quite probably to be regarded as meeting the statutory definition of disability. Equally, where a person can carry out an act, but only with great difficulty, that person's ability has been impaired.[9]The Goodwin case also gave tribunals guidance on the proper approach to adopt when applying the provisions of the previous Act. This guidance remains equally relevant today in interpreting the meaning of S.6 EqA. The EAT said that the words used to define disability require a tribunal to look at the evidence by reference to four different questions as follows:• Did the Claimant have a mental and / or physical impairment?• Did the impairment affect the Claimant's ability to carry out normal day-today activities?• Was the adverse condition substantial?• Was the adverse condition long term? These four questions should be posed sequentially and not together.[10]The EqA protects not only those who have disabilities, but also those who have suffered from disabilities in the past. S.6 (4) EqA states as follows: "A reference . . . to a person who has a disability includes a reference to a person who has had the disability". An impairment will be regarded as "long-term" if it has lasted at least 12 months, or the total period for which it lasts, from the time of the first onset, is likely to be at least 12 months or it is likely to last for the rest of the life of the person affected (EqA, Schedule 1, paragraph 2(1)). In deciding whether the impairment is "likely" to last at least 12 months, or "likely" to last for the rest of the life of the person affected, the word "likely" should be interpreted as meaning that it "could well happen".[11]Where an impairment has in the past had a substantial adverse effect but has now ceased to do so, it will be treated as continuing to have a substantial effect if the effect is likely to recur. The legal position is that provided it is likely to recur there is no requirement for the recurrence to be "long-term" within the meaning of the EqA. However the requirement that the adverse effect be "long-term" is not removed for recurring conditions. Rather, the length of time for which the impairment lasts starts from whenever it first had a substantial adverse effect and continues (after the impairment has ceased to have a substantial effect) for as long as it remains likely that the impairment will recur. Therefore a sporadic condition will qualify as a disability if its effect, when present, is substantial and either its substantial effect has in fact lasted for a period of at least 12 months from its first onset or its substantial effect lasted for a lesser period, but it remains likely that it will recur for at least 12 months from the date of first onset.[12]The Guidance states that the likelihood of recurrence should be considered "taking all the circumstances of the case into account". The tribunal must accept whether it was likely, at the time that the discrimination is alleged to have occurred that the condition would recur. Sometimes however by the time the tribunal hearing takes place the impairment will in fact have recurred at some point in time between the date of the alleged discrimination and the date of the hearing. However the tribunal is not entitled to take that recurrence into account and must restrict its consideration to what could reasonably have been known by the employer at the time of the alleged discrimination. Events subsequent to that time are not relevant in determining the likelihood of recurrence.[13]In this case Mr Curtis and Mr Kennan both placed reliance on DLA Piper. In that case the EAT held, inter alia: "There were sometimes cases where identifying the nature of the impairment from which a claimant may be suffering involves difficult medical questions. 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 day-to-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 commonsense 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" The EAT further states: "Accordingly, the correct approach is as follows:(i) It remains good practice for a tribunal to state conclusions separately on the questions of impairment and of adverse effect (and, in the case of adverse effect, the questions of substantiality and long-term effect arising under it)(ii) However, in reaching those conclusions, the tribunal should not proceed by rigid consecutive stages. Specifically, in cases where there may be a dispute about the existence of an impairment it will make sense to start by making findings about whether the claimant's ability to carry out normal day-to-day activities is adversely affected (on a long term basis), and to consider the question of impairment in the light of those findings" The Judgment then states: "The distinction between the mental illness known as 'clinical depression' and depression as a reaction to adverse circumstances is routinely made by clinicians and should in principle be recognised for the purposes of the DDA. It may be a difficult distinction to apply in a particular case, and the difficulty can be exacerbated by the looseness with which some medical professionals, and most laypeople, use such terms as 'depression' ('clinical' or otherwise), 'anxiety' and 'stress'. Those difficulties would not often cause a real problem in the context of a claim under the DDA. If a tribunal starts by considering the adverse effect issue and finds that the claimant's ability to carry out normal day-to-day activities has been substantially impaired by symptoms characteristic of depression for 12 months or more, it would in most cases be likely to conclude that he or she was suffering "clinical depression" rather than simply a reaction to adverse circumstances. It is a commonsense observation that such reactions are not normally long-lived."
Findings of Fact
[14]The Tribunal has made the following findings of fact after considering all the oral and documentary evidence referred to it together with Counsel's oral submissions. The Claimant's employment with the Respondent ended on 21 December 2017. The Claimant states that she has been suffering from stress and anxiety since 2013, that this has been ongoing, and has affected her diabetes. The Claimant has been taking Escitalopram and has received cognitive behaviour therapy (CBT) and counselling. In her impact statement the Claimant has listed eleven effects by which she says this condition impacts on her health and on her day to day activities. Amongst those effects she refers to headaches, migraines and infections, over-arching tiredness and depression. However the Claimant's statement does not particularise those effects that is, it provides no details of when she suffered from them, what impact they had, how long they lasted and how frequently they have occurred.[15]The Claimant confirmed that she first sought advice from her GP for stress and anxiety in 2013. This was when she was working for two schools which resulted in 60 hour working weeks for her. Her GP notes indicate that she was already taking antidepressants (Escitalopram) and was advised to stay on her current dosage (10 mg). However, in her Impact Statement the Claimant states that in October 2013 her weekly dosage was increased from 30 mg to 70 mg and that the dosage has predominantly remained at 70 mg and at times increased to 140 mg, which she states is her current dosage at the date she completed this statement on 30 July 2018. The Claimant states that she cannot function without this medication. The GP notes available to the Tribunal indicate there was only one occasion when the Claimant's dosage was increased to 20 mg. This followed a consultation on 14 September 2016 and the GP records indicate that by 7 October the dosage had been reduced to 10 mg. The Claimant told the Tribunal that sometimes she cannot get out of bed for two days, does not cook, does not want to socialise and "seems" to suffer from headaches and migraines. She also finds it difficult to make difficult decisions; she finds herself tired all the time and does not go shopping. She has been referred to CBT by her GP on two occasions, one arising from her workplace issues and the other from two or three incidents in her personal life. Stress can increase her blood sugar levels which worsens her diabetes.[16]The Claimant was referred to Occupational Health by the Respondent in April 2016 because of continuing frequent short and long term sickness absences. The Occupational Health Report of 19 April 2016 confirms that since September 2015 many of the Claimant's sickness absences had been due to diabetes and its complications. It confirms that her attendance during the autumn term of 2015 was extremely poor due to an ear infection, then a severe reaction to a flu jab, the latter causing symptoms of glandular fever. It states that in January 2016 she started a phased return to work and that her attendance had been much improved since that date with short absences due to minor infections and back ache. It also confirms that a change had been made her to diabetic medication and that this, combined with a significantly improved diet, had improved her diabetic control. The prognosis for improved attendance was good and it was noted that her personal stress might be reduced in the future if her granddaughter moved out of her home which was then likely to occur in the summer.[17]The Claimant told the Tribunal that she would attend on her GP as to her stress when it became hard for her to cope. She considers that it was mainly triggered by her work. The Claimant was extensively cross-examined by Mr Curtis in respect of her GP records. These confirmed the Claimant made a substantial number of attendances on her GP during the period in question, many of which were unconnected to stress and anxiety. Those to which the Tribunal were referred, which were potentially relevant to the preliminary issue, are summarised below.[18]On 22 May 2013 the Claimant attended her GP in respect of carpal tunnel syndrome and the note records a chat with her about a stressful period at work. There was also consideration of her worries about chest pain for which an ECG was arranged. On 11 October 2013 the Claimant attended to discuss facial pain and sinus congestion and informed her GP of a meeting with a governor of the Respondent in which she had felt unappreciated and which had caused her to be concerned about losing her job.[19]On 26 November 2013 there was a review meeting in which it is recorded that the Claimant told her GP that work was still very pressurised but she was coping better with the help of Escitalopram and that nothing was yet resolved about her job. On 23 January 2014 the GP's note records that work stresses were unchanged, that Escitalopram helped cope and that she was looking for a change and planning a holiday to Jordan with no thoughts of self-harm.[20]On 17 April 2014 the Claimant's mood was described as stable and the note indicates that she was happy to continue with Escitalopram and also discussed a problem with boils which earlier notes confirm commenced after her return from her holiday in Jordan. On 27 May 2014 she reported continuing challenges in her job and that she might be made redundant by the end of the year in her main job. It was agreed she would continue with the current dose of Escitalopram. The Claimant also confirmed that she had access to a telephone counselling service offered by the Respondent. On 31 July 2014 there was a further review which refers to job problems as ongoing but the Claimant had stated that she was coping well. On 16 October 2014 the GP's note indicates that the Claimant had been offered a permanent job in one school. It is recorded that she felt much more settled as a consequence and was considering leaving the Isle of Wight in two years after her granddaughter had completed GCSEs.[21]There is then no relevant GP note until 7 July 2015. This note indicates that the Claimant sought a referral as to difficulties with her right foot and also records that she indicated there was lots of stress at work. There was also consideration of medication for her diabetes. On 28 September 2015 there was a diabetic annual review. This note records that the Claimant had explained that she had suffered a really stressful time since 2012 looking after her granddaughter because of her daughter's unfortunate mental illness and encountering stress at work. The note also indicates that the Claimant had decided that she needed to start looking after herself and had stopped smoking and lost weight as a result. There was also a discussion about a potential change in medication for her.[22]On 2 November 2015 the Claimant attended in respect of flu like illness from which she had been suffering for two weeks. This had caused her real problems with sleeping and she had not been able to get up in the morning which she was given a short course of sleeping tablets. The Claimant described this illness as similar to glandular fever and said that her worries about being off work had also kept her awake at night at that time.[23]The Claimant attended on her GP again on a date between 13 November and 23 November where she was signed off from work with a viral illness described as chronic fatigue syndrome. One part of the GP's note reads as follows: "multiple different issues – fatigue (up for max six hours per day as tired), sore throat, aches all over, continues to get occasional hot flushes, appetite erratic, sleep erratic, weight increasing, bowels erratic, no urinary symptoms. Bloods in October – NAD. Stress at work in July which she thinks triggered everything. Getting frustrated by illness, describes low mood but sounds reactive depression illness". The Claimant was also suffering from a lesion on her right toe. A sick note was issued for one week after which her GP recommended consideration of a phased return to work.[24]On 1 March 2016 the Claimant attended her surgery for consultation on diarrhoea symptoms and reported that she had been feeling depressed and it was suggested there should be a review if she still felt low after two weeks. The Claimant attended her GP again on 23 March 2016. This was to deal with low back pain and there is no reference to the depression discussed on 1 March 2016.[25]The GP note for an attendance on 14 September 2016 reads as follows: "History: Stress – Been through disciplinary at work which she feels was unfair and is appealing. Aunt she was close with died on Sunday. Daughter just found out that she is having a baby with suspected birth defect but they do not know exactly what yet. Tearful. Felt like she coped well with the work problem but these other aspects have tipped her over the edge. Getting episodes where she is feeling like she cannot breathe & difficulties thinking straight. Diagnosis: Stress – related problem. Plan: agreed to increase Escitalopram to 20 mg in light of panic attacks, agreed to short course of Diazepam. PRN but encouraged not to take but to have as a comfort blanket in her back. FU in 2/52 to check progress or sooner if worsening"[26]There was then a telephone consultation at sometime between 15 and 30 September 2016 by which time the Claimant had been off work for two weeks. She reported that stress at work was continuing and the diagnosis given was a stress related problem. There was a further consultation with a different GP on 30 September 2016. The note records that the Claimant said that work had been putting a lot of pressure on her. The diagnosis was "low mood as a consequence of current events". There was a further consultation on either 19 or 20 October 2016 as to ongoing stress at work for which a medical statement was issued signing the Claimant off from work from 14 to 18 October with a diagnosis of stress mainly work related with the diagnosis on the Not Fit for Work note stating "stress related issues".[27]There was a further attendance on 1 November 2016 which records a history of stress and low mood and refers to a lot of stresses with work and home life. The Claimant was struggling to go back to work at this time and her GP advised a phased return to work. She issued a note signing the Claimant off for the rest of the week with a proposed phased return to work after that of four weeks and a review with her GP in two weeks' time. The Claimant was considered to be fit for work with those restrictions. There is no further reference to stress at work until a GP's note on an attendance by the Claimant on 18 July 2017 which records that it was agreed that he Claimant was very stressed at work and there was a long supportive chat. The next reference to stress in the GP notes after that attendance is for an attendance on 13 April 2018. This records that the Claimant informed her GP that she was waiting for a Tribunal.[28]The Claimant did not agree with Mr Curtis that there were no effects reported to her doctor as described in her impact statement apart from those matters referred to during the note of her attendance on her GP on 14 September 2016. She told Mr Curtis that her condition never varies that much and is always with her with the impact of the effects of her illness depending on the circumstances she is facing at the time. The Claimant accepted that her GP had not recorded any concerns about headaches in the notes. These are the facts which the Tribunal has found. Submissions[29]Mr Curtis, relying on DLA Piper, stressed the difference between a clinical condition such as depression and an adverse reaction to life events and submits that whilst both might provide similar symptoms only the first is capable of being a mental impairment which could be a disability within the terms of the Equality Act.[30]Mr Curtis submits that there is a trigger for each of the occasions when the Claimant attends medical professionals with stress and anxiety. He also anticipated that the Claimant will submit that these problems have lasted for more than 12 months which means they are likely to be a medical condition. In this regard he asked the Tribunal to consider the case of Herry, a case in which he thought the facts were analogous to this case. He submits that the Claimant's impact statement and oral evidence under cross-examination confirm that the stress was substantially work related. The Tribunal should find that the Claimant has not proved that this is a mental condition capable of being a disability because the evidence demonstrates that her stress and anxiety is an adverse reaction to events, primarily to work matters but also to family issues such as in September 2016. The Claimant's GP records scrutinised during the hearing defeat the Claimant's claim she was suffering from a mental impairment amounting to a disability at the relevant time.[31]Mr Curtis further submitted that the Claimant's account of the severity of her symptoms, and the range of them is not supported by the medical evidence. He submitted to the Tribunal that it should prefer the account in the GP records because that had not been prepared for the purpose of Employment Tribunal proceedings. He was careful to emphasise that he was not suggesting that the Claimant was intending to mislead the Tribunal, or inventing symptoms, but asking the Tribunal to take account of the disconnection there is in her evidence when set against the GP records which demonstrates there is no substantial and long-term effect on her day to day activities.[32]Mr Kennan also relies on DLA Piper and citing the judgment in that case invited the Tribunal to look at the long-term adverse effect which stress and anxiety has had on the Claimant's day to day activities. He submitted that if the Tribunal was satisfied with that evidence then it would be safe to assume that the Claimant is suffering from a mental impairment. Mr Kennan also reminded the Tribunal that substantial means more than trivial, and no more than that. The Respondent was in no position to challenge the evidence which the Claimant had given as to the difficulties this caused to her. Her medication has been ongoing since 2013 with stress initially caused by volumes of work and other work related concerns. Furthermore the effect of medical treatment must be discounted and Mr Kennan submits that the Claimant's evidence on how she would present without medication is significant in this regard. There would be significant adverse effects but for the medication because the underlying condition is always with her. There is an underlying medical condition that requires her to seek assistance as and when needed and adverse life events that make the condition worse at various intervals as they occur.[33]Herry was of little assistance because each case has to be decided on its own facts. A purposive for approach is not improper in a case such as this. The evidence of ongoing stress and anxiety, combined with continuous medication, and the other assistance required from time to time, which included CBT, satisfies the definition of disability in the EqA.
Conclusions
[34]The Claimant lists the following impacts on her day to day activities in her Impact Statement: headaches, migraines and infections; inability to think clearly and difficulty in making basic decisions; overarching tiredness; loss of confidence and inability to interact professionally or socially; anxiety about work and checking things excessively; feeling overwhelmed and unable to meet demands; being affected by noise and inability to concentrate; mood changes such as frustration, helplessness, irritability, defensiveness, impatience and tearfulness, which affect professional and familial relationships; depression; sleeping problems – unable to sleep or having to sleep all day; and not wanting to leave the house.[35]The Claimant has not particularised the extent of the interference on her day to day activities, that is, the frequency of that interference, how the various conditions have affected particularised day to day activities, when they have done so and in what context. The Claimant has also substantially exaggerated the level of medication which she has received for symptoms of stress when the Tribunal considers what is stated in the Claimant's Impact Statement when compared to her GP's notes as to the level of Escitalopram prescribed to her.[36]The Claimant says that the impacts she lists in her Impact Statement are attributable to her stress and anxiety and are always with her and then made worse by various different circumstances from time to time. This is confirmed by the Claimant's GP's notes which confirm that the Claimant has suffered from stress and anxiety at various times during the period under consideration by the Tribunal. Those notes also confirm that those incidents of reported stress were substantially caused by the demands of the Claimant's job, and her fears of losing it but also by personal and family issues. The GP's notes also confirm that, unfortunately, the Claimant has had to contend with a number of other medical problems and that a number of the visits to her GP to which the Tribunal has been referred were in respect of other concerns where issues as to stress and anxiety were also discussed.[37]The GP's notes also confirm there were difficulties in November 2016. However, there are no further references to stress in her GP's notes until July 2017 when amongst other considerations as to blood tests, a constructive chat is recorded. There is then no further referral for stress until some months after the Claimant's dismissal. The Tribunal has also noted that when the Claimant referred problems with sleep to her GP in November 2015 (an impact the Claimant relies upon) it was because of a flu like illness, and that she was subsequently signed off from work with a viral illness described as chronic fatigue syndrome. It was not attributed to her stress and anxiety.[38]The Tribunal has the benefit of considering all the evidence placed before it in the round. In doing so, it has taken into account the guidance provided by the Judgment in DLA Piper on which both Counsel rely. It has also reminded itself that the burden of establishing that her stress and anxiety amounts to a mental impairment which has a substantial adverse effect on her ability to carry out day to day activities rests on the Claimant.[39]The Tribunal has already noted that the Claimant's evidence has been unsatisfactory in a number of respects. She has made broad unparticularised claims as to the impact of stress on her day to day activities, and exaggerated the dosage of the medication given to her to combat it. Her medical notes also confirm that she has suffered from a substantial number of other medical problems including a serious and disabling diabetic condition, for which she has been prescribed other medication at various times. In view of the Claimant's unsatisfactory evidence the potential impact and effect of difficulties on the Claimant's overall medical condition are uncertain and problematic particularly in view of the lack of particularity of the Claimant's evidence which has already been referred to.[40]The Claimant's evidence is that the symptoms, and their impact on her have remained with her and have been ongoing throughout the period under consideration and are then made worse by external circumstances that arise from time to time. The evidence before the Tribunal falls far short of establishing that the Claimant has been continually suffering from the impacts which she has listed. It confirms that the Claimant's stress and anxiety has arisen in response to various adverse circumstances as they have arisen. The Claimant has not proved that she is suffering from a mental impairment capable of being a disability, firstly, because the evidence demonstrates that her stress and anxiety is an adverse reaction to separate external events, and, secondly, because the Claimant has not discharged the burden on her of showing, by her evidence, and documentation submitted in support of it, that her stress and anxiety has had a substantial, and long-term, adverse effect on her ability to carry out normal day to day activities. Therefore, the Tribunal concludes the Claimant was not a disabled person within the meaning of the Equality Act 2010 by reason of her stress and anxiety.