Mr S Lucas v Fuller, Smith & Turner plc: 1400808/2018

EMPLOYMENT TRIBUNALS

Case No 1400808/2018

Venue Southampton

Hearing 22 November 2019

Between

Mr S LucasClaimant

Fuller, Smith & Turner plcRespondent

Before

Employment Judge Gray

Miss R Jones (instructed by Counsel) for claimant

Ms M Tutin (instructed by Counsel) for respondent

Date 24 February 2020

JUDGMENT

[1]The judgment of the tribunal is that the Claimant is a disabled person within the meaning of the Equality Act 2010 from the 12 December 2017 by reason of depression. JUDGMENT OF THE EMPLOYMENT TRIBUNAL HELD AT Southampton ON 22 November 2019 EMPLOYMENT JUDGE GRAY Representation For the Claimant: Miss R Jones (Counsel) For the Respondent: Ms M Tutin (Counsel)

[3]The Judgment of the T ribunal is that the Claimant is a disabled person within the meaning of the Equality Act 2010 from the 12 December 2017 by reason of depression. JUDGMENT having been delivered orally on the 22 November 2019 and written reasons then having been requested at the hearing on the 22 November 2019, in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, the following reasons are provided:

REASONS

[1]This is the judgment following a preliminary hearing to determine whether the Claimant was a disabled person at the material times. The question of whether the Respondent knew, or should have known, that this was the case (if he was so disabled) was not determined at this hearing for the reasons set out below.

[2]By way of background (as summarised in the case management summary of Employment Judge Oliver from a hearing on the 10 April 2019), by a claim form presented on 5 March 2018 the Claimant brought complaints of unfair dismissal and of disability discrimination, which the Respondent has defended. It is noted that the Claimant worked for the Respondent from 20 June 2016 as a head chef. The Claimant says that he was dismissed on 15 December 2017. The Respondent says that he resigned with notice on 12 December 2017, and his final day of employment was 25 December 2017. The Claimant says that he has dyslexia and that he had a mental health breakdown during his employment.

[3]It was at a further case management preliminary hearing before Employment Judge Housego on the 28 June 2019 that the Respondent confirmed that it accepted that at all times they knew that the Claimant has dyslexia to the extent that it amounts to a disability for the purposes of the Equality Act. It does not accept that the Claimant is disabled by reason of stress anxiety and depression at the relevant time.

[4]As noted by Employment Judge Housego at paragraph 13 of his case management summary “the fact that the claimant’s mental health has suffered may be as a result of being dismissed or resigning: that is subsequent to the events complained of, and not be the reason for any treatment by the respondent of him. If the claimant’s mental health was, at the time, such as meets the definition in the Equality Act 2010, it also has to be established that in December 2017 it was likely that such a condition would be likely to last 12 months. Thirdly, if it was a disability then there is also the question of whether the respondent knew, or should have known, of it.”

[5]This preliminary hearing in person was arranged to determine this preliminary issue, that is “whether, at a date before 25 December 2017 the Claimant was disabled by reason of stress anxiety and depression, and if he was so disabled whether the Respondent knew, or should have known, that this was the case.”

[6]Adjustments for this hearing were made for the Claimant at his request and with the agreement of the parties, in that documents were read to him, he was given opportunity to request breaks when needed and his sister (Mrs Taylor) was permitted to sit alongside the Claimant when he gave his witness evidence to assist him in identifying the documents he was taken to in oral evidence.

[7]At the commencement of the hearing I was presented with an agreed bundle of 369 pages, which included the Claimant’s two impact statements. I was also presented with a witness statement for Mrs Taylor in support of the Claimant.

[8]From considering the documents presented and after hearing representations from both Counsel, it was identified that the question of the Respondent’s knowledge of the Claimant’s alleged disability so factually overlapped with the unfair dismissal complaint that it would be proportionate for that to be addressed as part of the final hearing. This preliminary hearing was therefore limited to determine the question of whether the Claimant was disabled by reason of stress anxiety and depression at the relevant time.

[9]There was also a preliminary point before this preliminary matter could be considered which was whether the witness statement of Mrs Taylor should be considered as it was not expressly provided for in the previous case management orders. For these reasons Respondent’s Counsel objected to the statement being considered at this hearing. Claimant’s Counsel argued that it was relevant evidence and the Respondent had sight of the witness statement since September 2019. It is also noted that a copy of Mrs Taylor’s statement is included in the agreed bundle for this hearing. After considering the representations of respective Counsel and noting that Mrs Taylor had attended today’s hearing to give evidence it was determined that it would be considered by me and this would give Respondent’s Counsel opportunity to cross examine Mrs Taylor.

[10]I therefore heard from the Claimant and from Mrs Taylor on his behalf.

[11]I found the following facts in relation to this preliminary issue proven on the balance of probabilities after considering the whole of the evidence, both oral and documentary as presented to me on this issue, and after listening to the factual and legal submissions made by and on behalf of the respective parties on this issue. Facts

[12]The Claimant was diagnosed with depression on 18 December 2017 and this can be seen from the GP notes at pages 224 and 225 of the agreed bundle. Also, it is noted in further copies of the GP notes (at page 278) that depression is an active problem “(18 Dec 2017 – Ongoing)”, and there are entries about it from 18 December 2017 to 9 May 2018. It is also noted within the notes that the Claimant is prescribed medication for his depression “Sertraline 50mg tablets” (page 224 for example).

[13]It is noted in the GP notes (at page 224 of the agreed bundle) that a full account of the Claimant’s symptoms are recorded under the “History” section of the entry on the 18 December 2017 as follows “mood has been dropping over last few months, not sleeping, not eating, has been loosing wgt, lots of stress with job, works as a chef, housing tied to job, boss has tried to make him resign today saying not fit to be there, last week sudden onset of altered speech, went to QA 48 hours later when partner became aware of issue, has had CT, awaiting MRI, speech worse when stressed or in public, through today at home has not been too bad, some suicidal thoughts = keeps seeing himself hanging, feels would not follow through on this and no active plans, desperate for help, feels this is not like him, usually happy positive person, seen with partner”

[14]Then under the “Examination” section “speech stuttering dyspahasia, worse when stressed or talking about work”.

[15]Then under the “Comment” section “discussed need to exclude more serious brain pathology, in interim seems reasonable to start ssri- speech may be functional related to mood, phone to review next week aware needs to seek help if less well this week given number to contact PALS re MRi”.

[16]The Claimant is issued with a not fit for work note “(Diagnosis: depression; Duration 18-Dec-2017 – 02-Jan-2018)”.

[17]Before that there is an entry in the GP notes on the 16 December 2017 (page 225) referring to a hospital admission of the Claimant.

[18]There are then two entries on the 15 December 2017 (page 225) that relate to the reason for the Claimant’s hospitalisation incident, which at the time it was thought could be a stroke, but it was confirmed in oral evidence at this hearing not to be. The “History” section of the 15 December 2017 GP entry notes “spoke to patient first but very difficult to understand- woke from sleep 3/7 ago slurred speech, no muscle weakness arms/legs, denies any change in face says has been to work and people commenting on speech but he has not done anything about it- wif came back today from ebing away and now called us”. The “Examination” section notes “very slow and slurred speech”. The “Comment” section “advise attend ED now as possible stroke”.

[19]The hospital records start at page 189 of the agreed bundle. Considering the record at page 189 it records that the Claimant was admitted at 00:20 on the 16 December 2017 and describes “Slow speech with word finding difficult for 3/7” (this was explained by Respondent’s Counsel as being a reference to 3 out of 7 days).

[20]When referring to this and the GP entry on the 15 December 2017 (page 225) “……woke from sleep 3/7 ago slurred speech……”, this would put the start of these symptoms as the 12 December 2017.

[21]The next GP entry before the 15 December 2017 is on the 6 October 2017 (page 225) and it refers to an RTA the Claimant had and two occasions for GP attendance, reference the RTA. There is no mention of any of the symptoms described on 15 or 18 December 2017 by the Claimant.

[22]The Claimant’s first impact statement records at paragraph 2 (page 81) that his symptoms of depression and stress started in or around October 2017. This appears to be consistent with the GP records already referred to above, in that there is nothing mentioned about those symptoms when he consults his GP on the 6 October 2017 about the RTA.

[23]At paragraph 4 of the Claimant’s first impact statement (page 82) he describes the “difficulties which I experienced with my former employer and the lack of adjustments which were provided to me led me to experience a mental health breakdown in work on the 15th December 2017.”

[24]At paragraph 6 of the Claimant’s first impact statement (pages 82/83) he describes his symptoms as “I believe my stress is linked to my condition of depression………...My depression means that I have no motivation to do anything and I have experienced symptoms of worthlessness, to the point where I have attempted to take my own life on several occasions. The symptoms associated with my condition of Stress cause me to worry about my day to day activities such as my housing and my financial circumstances”. There are no specific date references to these symptoms however.

[25]The statement of Mrs Taylor does provide some dates as to the Claimant’s condition. At paragraph 6 of her statement she says, “I visited [the Claimant] again in September 2017 and he appeared to be very down.”. Then at paragraph 7 of her statement Mrs Taylor says “When I visited [the Claimant] in December 2017 [which Mrs Taylor confirmed in her oral evidence was Christmas eve (24 December 2017)], I was shocked at his appearance as he had lost so much weight and appeared dishevelled. His skin appeared grey, he had bags under his eyes and he looked generally unwell. He was very emotional and in a vulnerable state.” (page 181 of the agreed bundle).

[26]At paragraphs 3 and 4 of the Claimant’s second impact statement (page 184) the Claimant refers to how he thinks his symptoms are being expressed at work as follows “On or around the 5th December 2017, due to the severity of the stress that I was under, I spoke with Tracey Richards, telling her “If you don’t get help then I’m out of here”…I spoke with Tracey again on 12th December 2017, reiterating that I intended to leave the Company if I was not provided with any help”.

[27]At paragraph 9 of the Claimant’s second impact statement (page 185) the Claimant refers to his symptoms as expressed to his GP “I had expressed that I wanted to end my life; my low mood had developed over the previous few months and; that I was under a lot of stress at work. Although I was formally diagnosed on this date, I began to experience the symptoms of my conditions, in or around September/October 2017 and I continue to experience symptoms to date, this is supported by the report from my GP…”.

[28]At paragraph 12 of the Claimant’s second impact statement (page 185) the Claimant refers to his symptoms as “I was struggling to get out of bed and get dressed in the morning let alone cook 100 meals per day. Everything was a struggle for me. I felt so low I wanted to end my own life……My symptoms therefore developed and culminated in my breakdown”.

[29]These references by the Claimant to his symptoms are not stated to be on a specific date and the Claimant acknowledged in his oral evidence that he thought he would get better on his own, in that he would wake up the “next day” and everything would be okay. Unfortunately, this did not happen though and as detailed already he did then engage with his GP from the 15 December 2017 in relation to these symptoms and the slurring of his speech.

[30]I have been referred by the Claimant to the “report” from his GP. This is a letter dated 31 July 2019 from Dr J N D Thornton (pages 211 and 212). As has been highlighted to me by Respondent’s Counsel this should not be considered to be an “experts” report and the Tribunal has not (nor the Respondent for that matter) seen the letter of instruction that led to the production of this letter from Dr Thornton. However, this is still a letter from a GP, and a GP at the practice where the Claimant was treated at the material time and has been presented to me to be considered in an agreed bundle of documents. It has been drawn to my attention that Dr Thornton states at paragraph f of his letter (at page 212) “By the time of his diagnosis on the 18th December 2017 [the Claimant] stated he’d had symptoms of depression, stress and anxiety for several months. It is difficulty to give a specific date that I believe [the Claimant’s] condition would have developed into a long term condition, or was likely to do so, but as he was still unwell throughout 2018, and 2019 to date, by March 2018 he would have been symptomatic for approximately 6 months. In my professional experience, by that point I would not have been expecting a speedy recovery, and hence would have felt there was a strong likelihood of his condition becoming a long term one as defined by the Equality Act. We last assessed [the Claimant] on the 16th May 2019 when we still felt he was unfit for work and was still struggling. This being the case he has now had his condition at least since December 2017, and that is not including the several months of symptoms that he suffered prior to his diagnosis.” Law

[31]As set out in section 6 and schedule 1 of the Equality Act 2010 a person P has a disability if he has a physical or mental impairment that has a substantial and long-term adverse effect on P’s ability to carry out normal day to day activities. A substantial adverse effect is one that is more than minor or trivial, and a long-term effect is one that has lasted or is likely to last for at least 12 months, or is likely to last the rest of the life of the person.

[32]Both Counsel presented me with helpful submissions on the relevant case authorities and I have referred to and copied below the summary from Respondent’s Counsel’s written submissions (at pages 355 to 357 (paragraphs 18 to 28) of the agreed bundle):

[33]“The burden of showing disability lies squarely on the claimant - Kapadia v London Borough of Lambeth [2000] IRLR”

[34]“The above definition [from the Equality Act] poses four essential questions: (1) does a person have a physical or mental impairment? (2) does that have an adverse effect on their ability to carry out normal day to day activities? (3) is that effect substantial? (4) is that effect long-term? These questions may overlap to a certain degree; however, a tribunal considering the issue of disability should ensure that each step is considered separately and sequentially: Goodwin v Patent Office

[1999] IRLR 4

.”

[35]“The quality of medical evidence is important if a claimant is to establish that they have a mental impairment which amounts to a disability. In Morgan v Staffordshire University

[2002] IRLR 190

, the EAT remarked that medical certificates by doctors which stated little or no more than the individual suffering from ‘depression’ might not be sufficient to establish disability.”

[36]“In RBS plc v Morris

UKEAT/0436/10

, the EAT reiterated the importance of expert medical evidence where an alleged disability takes the form of “depression or a cognate mental impairment”. In such cases, the issue may be too subtle to allow a tribunal to make proper findings without expert assistance. The EAT consider that the statement made in Morgan that “the existence or not of a mental impairment is very much a matter for a qualified and informed medical opinion” was still valid, and did not relate to the (now defunct) requirement that a mental impairment be clinically well-recognised.”

[37]“In Morris, the EAT overturned a tribunal’s decision that the claimant, who had been off work with depression, was disabled. The claimant decided against obtaining expert medical evidence, choosing instead to rely upon contemporaneous reports made by occupational health and treating doctors. In the EAT’s view, these reports justify the finding that the claimant suffered a relevant impairment for a time, but did not justify a finding that any substantial adverse effect was long-term or likely to recur.”

[38]“As to whether work related stress amounts to an impairment, the EAT made the following observations in Herry v Dudley Metropolitan Council

UKEAT/0100/16

UKEAT/0101/16

: there is a class of case where the individual will not give way or compromise over an issue at work or refuses to return to work, but in other respects suffers little or no apparent adverse effect on normal day-to-day activities; a doctor may be more likely to refer to the presentation of such an entrenched position as ‘stress’ than as anxiety or depression; a tribunal is not bound to find that there is a mental impairment in such a case as it may simply reflect a person’s character and personality; ultimately the question of whether there is a mental impairment is one for the tribunal to assess.”

[39]“It is uncontroversial that an impairment will only amount to a disability if it has a substantial adverse effect on the individual’s ability to carry out dayto-day activities which are normal. Whether an effect is substantial requires a consideration whether it is more than minor or trivial: s212 EqA. It is not the job of an expert to say whether impairments were or were not substantial: Abadeh v BT Plc

[2001] IRLR 23

.”

[40]“Para. 2(1), Sch. 1, EqA states that an impairment will have a long-term effect only if: (1) it is lasted at least 12 months; (2) the period for which it lasts is likely to be 12 months; or (3) it is likely to last for the rest of the life of the person affected.”

[41]“If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out day-to-day activities, it is to be treated as having that effect if it is likely to recur: para 2(2), Sch.1, EqA. The issue of whether the effect may recur might be shown by medical evidence of the prognosis or by statistical evidence: Mowat-Brown v University of Surrey

[2002] IRLR 235

.”

[42]“In respect of the meaning of the word ‘likely’ as used in the above context, this means whether something “could well happen”: SCA Packaging Ltd v Boyle

[2009] UKHL 37

. The Court of Appeal confirmed that likelihood of recurrence of the disability must be assessed at the date of the act of discrimination: McDougall v Richmond Adult Community College

[2008] IRLR 227

.”

[43]“This approach was approved by the EAT which also considered that the likelihood of the effect of an impairment lasting at least 12 months must be based on the evidence of circumstances prevailing at the date of the act of discrimination: Chief Constable of Sussex Police v Millard

UKEAT/0341/14

”.

[44]I have also considered the case authority of J v DLA Piper (EAT)

[2010] ICR 1052

that was referred to me by Claimant’s Counsel and in particular those paragraphs 40, 42 and 52 of that case that were expressly drawn to my attention and are copied below:

[45]“40. Accordingly in our view the correct approach is as follows: (1) It remains good practice in every case 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) as recommended in Goodwin v Patent Office

[1999] ICR 302

. (2) 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, for the reasons given in para 38 above, 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. (3) These observations are not intended to, and we do not believe that they do, conflict with the terms of the Guidance or with the authorities referred to above. In particular, we do not regard the Ripon College and McNicol cases as having been undermined by the repeal of paragraph 1(1) of Schedule 1, and they remain authoritative save in so far as they specifically refer to the repealed provisions.”

[46]“42. The first point concerns the legitimacy in principle of the kind of distinction made by the tribunal, as summarised at para 33(3) above, between two states of affairs which can produce broadly similar symptoms: those symptoms can be described in various ways, but we will be sufficiently understood if we refer to them as symptoms of low mood and anxiety. The first state of affairs is a mental illness—or, if you prefer, a mental condition—which is conveniently referred to as “clinical depression” and is unquestionably an impairment within the meaning of the Act. The second is not characterised as a mental condition at all but simply as a reaction to adverse circumstances (such as problems at work) or—if the jargon may be forgiven—“adverse life events” 7 . We dare say that the value or validity of *1073 that distinction could be questioned at the level of deep theory; and even if it is accepted in principle the borderline between the two states of affairs is bound often to be very blurred in practice. But we are equally clear that it reflects a distinction which is routinely made by clinicians—it is implicit or explicit in the evidence of each of Dr Brener, Dr MacLeod and Dr Gill in this case—and which should in principle be recognised for the purposes of the Act. We accept that 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 lay people, use such terms as “depression” (“clinical” or otherwise), “anxiety” and “stress”. Fortunately, however, we would not expect those difficulties often to cause a real problem in the context of a claim under the Act. This is because of the long-term effect requirement. If, as we recommend at para 40(2) above, 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 indeed suffering “clinical depression” rather than simply a reaction to adverse circumstances: it is a common sense observation that such reactions are not normally long-lived.”

[47]“52. But that is not the end of the story. It remains to consider whether in reaching the conclusion that it did the tribunal took into account all relevant factors. We do not believe that it did. We are struck by the fact that nowhere in para 4.1 of the reasons does the tribunal make any reference to the evidence of Dr Morris (see para 27 above). Although her report is not as explicit as one would like, it is, as we have said, clear that Dr Morris intended to convey that the claimant was indeed suffering from clinical depression in May and June 2008 and that that was a continuation or recurrence of the condition which had produced her symptoms in 2005/2006 and 2007. It seems clear that the failure to mention Dr Morris's *1077 report was not accidental. As noted at paras 29 and 30 above, the tribunal did not apparently regard her evidence as “expert”. In our view it was wrong not to do so. A GP is fully qualified to express an opinion on whether a patient is suffering from depression, and on any associated questions arising under the 1995 Act: depression is a condition very often encountered in general practice. No doubt his or her evidence would, other things being equal, have less weight than that of a specialist, and in difficult cases the opinion of a specialist may be valuable; but that does not mean that a GP's evidence can be ignored if the evidence of a specialist is not available or is inconclusive. We cannot be confident that if the tribunal had taken into account the evidence of Dr Morris it would necessarily have reached the same view. She was the claimant's own doctor, who saw her monthly over the key period, recording the diagnosis on each occasion as “depressive disorder”. None of the evidence of the other doctors unequivocally contradicted her opinion: indeed Dr Brener's might be thought to support it. Although Dr Gill's report strikes a cautiously sceptical note, he had not seen the claimant.”

[48]With regard to the particular facts of this case I am mindful that the time at which to assess the disability (i.e. whether there is an impairment which has a substantial adverse effect on normal day-to-day activities) is the date of the alleged discriminatory act. This is also the material time when determining whether the impairment has a long-term effect.

[49]Accordingly, therefore (with consideration of the statutory provisions and the four questions as set out in Goodwin(1) does a person have a physical or mental impairment?

(2) does that have an adverse effect on their ability to carry out normal day to day activities?

(3) is that effect substantial?

(4) is that effect long-term?) I find as follows:

[50]The Claimant clearly has a diagnosed impairment of depression which is diagnosed on the 18 December 2017.

[51]How impaired was the Claimant in his normal day to day activities (was it substantial – that is more than minor or trivial) and if so, when did that impairment substantially adversely affect him?

[52]The symptoms described by the Claimant and recorded in the GP notes on the 18 December 2017 (the date depression is diagnosed) are that his “…. mood has been dropping over last few months, not sleeping, not eating, has been loosing wgt… last week sudden onset of altered speech, went to QA 48 hours later when partner became aware of issue, has had CT, awaiting MRI, speech worse when stressed or in public, through today at home has not been too bad, some suicidal thoughts = keeps seeing himself hanging, feels would not follow through on this and no active plans, desperate for help, feels this is not like him, usually happy positive person…” and these are clearly more than minor or trivial, so would have a substantial adverse effect on his normal day to day activities.

[53]As already explained when finding the facts in this case the references by the Claimant as to when his symptoms started are not stated to be on a specific date and the Claimant acknowledged in his oral evidence that he thought he would get better on his own. This did not happen though and as detailed already he did then engage with his GP from the 15 December 2017 in relation to these symptoms.

[54]There is also clearly a hospitalisation event (where the Claimant was admitted at 00:20 on the 16 December 2017), which the Claimant describes as a “mental health breakdown” in paragraph 4 of first impact statement and which appears to affect his normal day to day activities.

[55]Before that I have found as fact based on the medical evidence presented to me (the GP entry on the 15 December 2017 (page 225) “……[the Claimant] woke from sleep 3/7 ago slurred speech……”) and the Claimant’s evidence that on the 12 December 2017 while at work he says he said that he intended to leave the company, that the 12 December 2017 appears to be a significant date.

[56]Further, the statement of Mrs Taylor provides evidence of a downward trajectory of the Claimant’s health from September 2017 (paragraph 6 of her statement, “I visited [the Claimant] again in September 2017 and he appeared to be very down.”) to 24 December 2017 (paragraph 7 of her statement, “When I visited [the Claimant] in December 2017 [which Mrs Taylor confirmed in her oral evidence was Christmas eve (24 December 2017)], I was shocked at his appearance as he had lost so much weight and appeared dishevelled. His skin appeared grey, he had bags under his eyes and he looked generally unwell. He was very emotional and in a vulnerable state.”).

[57]Then considering the letter dated 31 July 2019 from Dr Thornton (pages 211 and 212), who is a GP, and with reference to J v DLA Piper would therefore be fully qualified to express an opinion on whether a patient is suffering from depression, and on any associated questions arising under the [Equality Act]; and that the Respondent has not presented me with any expert medical evidence to challenge what he says, as to the “long term” prognosis of the Claimant’s depression, that “...........as [the Claimant] was still unwell throughout 2018, and 2019 to date, by March 2018 he would have been symptomatic for approximately 6 months. In my professional experience, by that point I would not have been expecting a speedy recovery, and hence would have felt there was a strong likelihood of his condition becoming a long term one as defined by the Equality Act.”.

[58]Dr Thornton says there is a “strong likelihood of [the Claimant’s] condition becoming a long term one” as at March 2018. Claimant’s Counsel submitted that as Dr Thornton’s opinion is there is a “strong likelihood” then, it must be that it would be “likely” as of December 2017 (that being a lower threshold than that described by Dr Thornton). This does seem right. It is also consistent with the downward trajectory of the Claimant’s health as observed by his sister (Mrs Taylor) from September 2017 to the 24th of December 2017, the escalation of his treatment by his GP on the 15th and 18th December 2017 (including his diagnosis of depression on the 18 December 2017), and his intervening hospitalisation (16th December 2017). Further, there is no suggestion from the evidence presented to me that the Claimant’s condition has improved since December 2017.

[59]Considering then when the impairment of depression could be said to be likely to last for at least 12 months (or to put it another way – the depression lasting for 12 months “could well happen”), this appears to be the 12 December 2017 based on the evidence available from the time of the alleged discrimination (i.e. up to the 25 December 2017).

[60]For those reasons my finding is that the Claimant satisfied the definition of having a disability within the meaning of the Equality Act 2010 from the 12th December 2017 by reason of depression.