Ms J Miller v University Hospitals Dorset NHS Foundation Trust: 1401200/2024
EMPLOYMENT TRIBUNALS
Case No 1401200/2024
Between
Ms J MillerClaimantUniversity Hospitals Dorset NHS Foundation TrustRespondent
Before
Employment Judge SalterDate 4 July 2025
JUDGMENT
It is the judgment of the tribunal that the Claimant:[1]was not disabled at the relevant time by reason of anxiety;[2]was disabled at the relevant time by reason of joint pain, urinary incontinence, excessive bleeding.
REASONS
References in square brackets below are unless the context suggests otherwise to the page of the bundle. Those followed by a with a § refer to a paragraph on that page and references that follow a case reference, or a witness’ initials, refer to the paragraph number of that authority or witness statement. References in round brackets are to the paragraph of these reasons or to provide definitions.
INTRODUCTION
[1]These are my reasons for the above judgment. The Employment Tribunal is required to maintain a register of all judgments and written reasons. The register must be accessible to the public. It has moved online. All judgments and reasons since February 2017 are now available at: https://www.gov.uk/employment-tribunal-decisions. The Employment Tribunal has no power to refuse to place a judgment or reasons on the online register, or to permanently remove judgment or reasons from the register once they have been placed there. If you consider that these documents should be anonymised in any way prior to publication, you will need to apply to the Employment Tribunal for an order to that effect under Rule 50 of the Tribunal’s Rules of Procedure. Such an application would need to be copied to all other parties for comment and it would be carefully scrutinised by a judge (where appropriate, with panel members) before deciding whether (and to what extent) anonymity should be granted to a party or a witness. BACKGROUND The Claimant’s case as formulated in her ET1
BACKGROUND
[2]The Claimant’s complaint, as formulated in her Form ET1, presented to the tribunal on 9th May 2024, contained complains of discrimination on grounds of disability and sex [19 §8.1]. The Respondent’s Response[3]In its Form ET3 the Respondent denied he claimant was disabled and denied the factual allegations in the claim. Relevant Procedural History[4]On 4th December 2024 [64] the matter came before Employment Judge Roper for a Preliminary Hearing during which this public preliminary Hearing was ordered to determine whether the Claimant was disabled within the meaning of the Equality Act 2010.[5]Employment Judge Roper summarised the litigation’s history at [70 §36] as: The claimant worked for the respondent hospital as a physiotherapist initially an agency worker from 6 February 2023 until 20 October 2023, and then as bank worker from 23 October 2023 until 18 December 2023. The Respondent asserts that the claimant was challenged for sending inappropriate messages to Dr Alqattan, and in short as a result she was told that she would have to change locations and to work in Bournemouth rather than Poole. The claimant terminated in the relationship, and issued these proceedings claiming direct sex discrimination and disability discrimination. The impairment relied upon as the menopause and associated symptoms. The claimant has since withdrawn the claim of direct sex discrimination under section 13 EqA, and for [discrimination arising rom (sic) disability] and victimisation under sections 15 and 27 EqA. These are now dismissed under the attached judgment of today’s date.[6]The relevant time for this assessment is identified in the Case Management Order as being the 12-23 December 2023 [65 §1], although the parties agree this should be the 12-18 December 2023. THE PUBLIC PRELIMINARY HEARING General[7]The matter came before me to determine whether the Claimant was disabled within the meaning of the Equality Act 2010. The hearing had a one-day time estimate. Unfortunately, even with a short lunch break, it was not possible for me to give deliberate and give judgment on this matter before the end of the day. Judgment was, therefore, reserved.[8]The Claimant was represented by Ms. Bell, the Respondent by Ms. Goodman, both of Counsel.[9]There was some technical issue with the recording facilities in the Tribunal room. DOCUMENTS AND EVIDENCE Witness Evidence[10]I heard evidence from the Claimant. She had provided a Disability Impact Statement that stood as her witness statement. She gave evidence by confirming the contents of her statements and then, was cross examined. Bundle[11]To assist me in determining the matter I had an agreed bundle consisting of some 187 pages. Both parties produced this and brought separate copies of it to the tribunal. I only used the electronic version that was provided. Two additional documents were provided by the Claimant and became pages 188- 191. They were admitted without objection by the Respondent.[12]My attention was taken to a number of these documents as part of me hearing submissions and as discussed with the parties at the outset of the hearing, before commencing their submissions, I have not considered any document or part of a document to which my attention was not drawn. I refer to this bundle by reference to the relevant page number. SUBMISSIONS[13]I had written skeleton arguments. Both parties supplemented their arguments orally. Since the skeletons are in writing it is unnecessary to repeat them here and they are referred to as appropriate in the conclusions. MATERIAL FACTS General Points[14]From the evidence and submissions, I made the following finding of fact. I make my findings after considering all of the evidence before me, taking into account relevant documents where they exist, the account given by the Claimant in evidence, both in her impact statement and in oral testimony. Where it has been necessary to resolve disputes about factual matters, I have done so on the balance of probabilities taking into account my assessment of the credibility of the Claimant and the consistency of her account with the rest of the evidence including the documentary evidence.[15]The Claimant is an experienced physiotherapist. At the time of the actions complained (December 2023) of she was 51 years old.[16]The Claimant has older sisters who she had seen go through the menopause. In 2020, she had self-reported she was maybe menopausal [88]. She complained of problems sleeping and increasing hip and joint pain [Impact Statement §7-19].[17]The Claimant’s pain and stiffness was initially identified as sciatica. The Claimant has some time off work owing to sciatica in September 2020 [188]. What was considered sciatica was, in October 2020, identified as being gluteal tendinopathy [144]. I was told that this has the effect of impacting her ability to use stairs and other daily tasks such as washing and dressing. The Claimant would sleep down stairs as climbing stairs would impact her gluteal tendons increasing the pain and stiffness she suffered.[18]In 2020 the Claimant is reported as having “experienced issues with anxiety for several years.” [188]. Since 1995 the claimant has been on medication for a condition which placed her at a higher risk of anxiety [Impact statement §3]. In October 2020 she lost her father and was anxiety due to this [87][19]There is no evidence of the Claimant’s absence from work through anxiety.[20]In Summer of 2021 the Claimant is again reported as suffering from gluteal tendinitis [93-92] [141].[21]Claimant started to suffer breakthrough bleeds in 2022 [140-139]. The Claimant told me that she understood what these were and how to deal with them. She explained to me, and I accept, that medically it did not overly concern her, so it was not raised with her GP.[22]Towards the end of 2022 she spoke to her GP about menopause symptoms and her GP confirmed this in 2023, after a discussion with the Claimant about heightened anxiety. There was a discussion over a different HRT treatment for the claimant (she had been on a treatment since 1995 for a medical condition).[23]In January 2023 the Claimant’s anxiety again if referred to after a family issue, which I do not need to address in this judgment as the detail re irrelevant for my purposes[135-136],[24]Whilst at work, the Claimant tells me that she often had to cut patient interactions short and exit meeting hurriedly to rush to the toilet. There is reference in the Claimant’s medical notes on 26th May 2022 to “PU ++ esp at night, and having an “overactive bladder”” [137].[25]The combination of her pain, need to use the toilet at night and anxiety, interfered with her sleeping.[26]In December 2023 the Claimant also was suffering from stress at work over the relevant period because, she says of the treatment she was receiving at the time. The Claimant stated that from this time she had suffered anxiety at work and that it impacted her attendance at morning meetings, and her travel into work.[27]The Claimant’s symptoms of issues the her concentration brain fog, fatigue and anxiety were reported as continuing on 4th April 2024 [190]
THE LAW
[28]Section 6 Equality Act 2010 provides: (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.[29]The Guidance on matters to be taken into account in determining questions relating to the definition of disability states this at A3 in relation to the meaning of an impairment: “The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. In many cases, there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long-term. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects.”[30]At A5 the Guidance gives examples of impairments and these include “mental health conditions with symptoms such as anxiety, low mood, panic attacks” and “mental illnesses such as depression”.[31]In J v DLA Piper UK LLP [2010] ICR 1052 the Employment Appeal Tribunal set out the following principles in relation to the definition of “impairment”: “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 undoubtedly 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”. We dare say that the value or validity of 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…and which should in principle be recognised for the purposes of the Act. We accept 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), 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.”[32]In Herry v Dudley Metropolitan Council [2017] ICR 610, HHJ Richardson, said this: “56 Although reactions to adverse circumstances are indeed not normally long-lived, experience shows that there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal dayto-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. An employment tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by an employment tribunal) are not of themselves mental impairments; they may simply reflect a person’s character or personality. Any medical evidence in support of a diagnosis of mental impairment must of course be considered by an employment tribunal with great care; so much any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee’s satisfaction, but in the end the question whether there is a mental impairment is one for the employment tribunal to assess.”[33]A “substantial” adverse effect is one that is “more than minor or trivial” (s. 212(1) EqA 2010). In determining whether an effect on normal day to day activities is substantial, a Tribunal should have regard to the time taken to carry out the activity (Guidance [B2]) and the way in which the activity is carried out (Guidance [B3]).[34]“Normal day-to-day activities” are things that people do on a regular or daily basis (Guidance [D2]), such as shopping, reading, writing, having a conversation, using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport and taking part in social activities. They do not include activities which are only normal for a particular person or a small group of people (Guidance [D4]). They do not include highly specialised work activities which are not normal day-to-day activities for most people (Guidance [D8]).[35]Schedule 1 to the Equality Act 2010 sets out further provisions relating to the determination of disability. Paragraph 2(1) of Schedule 1 provides that the effect of an impairment will be “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.[36]The question of whether an impairment is “likely” (in the sense of “it could well happen”) to last for at least 12 months falls to be determined based only on evidence that was available, and on the circumstances prevailing at the relevant time. The Tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did (or did not) last for 12 months; see McDougall v Richmond Adult Community College [2008] ICR 431 at [23] – [24].[37]Paragraph 2(2) of Schedule 1 provides that 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 it is likely (again in the sense of “it could well happen”) to recur. The likelihood of recurrence is again to be judged based on evidence available and circumstances prevailing at the relevant time (McDougall at [26]). CONCLUSIONS ON THE ISSUES General[38]The menopause is not in itself an impairment. However the majority of women can experience a wide range of symptoms when going through the perimenopause and menopause.[39]In her claim form the Claimant states that “at all material times [she] was suffering from symptoms relating to the menopause” [5 §1] and that “the symptoms of her menopause were capable of amounting to a disability in law…”[5 §5][8§20]. In her claim for she identified a “heightened level of anxiety” as a symptom of her menopause [8 §21][40]At the outset of the hearing I discussed with the parties the issues for me to determine. The Respondent’s position was that matters had developed as a result of the Claimant’s disclosure of documents. The matters, therefore I had to decide were:(a) With regard anxiety: the Respondent accepted that this did have a substantial impact on the Claimant’s day-to-day activities, but that this was not caused by the menopause. Rather, it was caused by external life events. Secondly the Respondent denied this had, or was likely to have, long-term effect as it started two months before the relevant period;(b) With regards, joint problems; sleeping issues and concentration; urge incontinence and excessive bleeding, the Respondent contented that these were not experienced during the relevant period; and(c) in relation to excessive bleeding only, this would not as a matter of fact be disabling. Anxiety[41]The Respondent contends that this is not caused by the menopause, but was, rather a reaction to “adverse life events”. There was some dispute between the parties as to the cause of the anxiety. I determine that the Claimant was not disabled by reason of this.[42]From the evidence I have seen and heard the Claimant suffered from anxiety “several” years before 2020. I do not know when exactly this is or when the pre-2020 anxiety began. But note it predates the claimant herself reporting menopause symptoms in that year.[43]On the material I have seen, therefore, the claimant has not satisfied me, on the balance of probabilities, that the anxiety is a symptom of her menopause as pleaded. I therefore agree with the Respondent that this was not caused by the menopause. Other Impairments[44]In light of the Respondent’s stated position that the Claimant did not experience these issues at the relevant time, I feel I can address these matters together. In short, I am satisfied that the claimant did experience these symptoms at the relevant time.[45]A lot of the Respondent’s cross-examination understandably consisted of taking the Claimant to various extracts of her GP notes. These are not a verbatim records of the conversations had between the Claimant and Doctor. Rather, they are a summary of the discussion. Where omissions in these notes are relied upon, I consider that the Claimant was able to satisfactorily explain how this may have occurred, and was candid that she did not mention matters to her GP as she herself was dealing with, either in light of her background and experience with her sisters’ experience with the menopause and urge incontinence and excessive bleeding; or from her skills and training and hip and back pain, as well as her access to medically trained colleagues as a source of assistance, I find this a credible explanation in these circumstances, for the absence of many references to these symptoms in her medical notes, and accept it as I find the claimant a credible witness.[46]The Claimant tells me, and I have no reason to doubt, and no evidence to contradict her accounts, that she did experience the various consequences of the symptoms she complains of, and where there is mention of these symptoms, the record is consistent with what the Claimant says she suffered. The Claimant’s evidence of the effect of the conditions, and their impact on her was clear.[47]There was no evidence to challenge the Claimant’s account of her(a) difficulty going up and down stairs was such that the Claimant had to sleep downstairs when at home;(b) need to cut short meetings or patient interactions to use the bathroom due to urge incontinence;(c) problems remembering names and patient information (due to difficulty sleeping); and The Respondent accepted that these would amount to a substantial adverse effect on the Claimant’s ability to undertake day-to-day activities [Respondent’s submissions §44, 46, 48]. Finding, as I have that the Claimant suffered the symptoms to the level she did, the impact is substantial.[48]The Respondent did not accept that the impact of excessive flooding would be substantial on the Claimant’s day-to-day activities. The Claimant’s evidence was that it would result in her having to stop work if flooding was excessive. There was no evidence to contradict this, and I accept the Claimants account. I find, therefore when it occurred it had a substantial impact on her normal day-to-day activities.[49]In deciding whether the effects were long-term I have considered the claimant’s conditions should be seen as recurrent. it is hard to pinpoint exactly when some of the claimant’s symptoms manifested in such a way that the adverse impact was sufficient to fall within the ambit of the Equality Act 2010. That said, the Claimant reports the various impairments at least a year before the relevant period, and so precise identification is unnecessary: they all had lasted over twelve-months at the relevant time.[50]Against this background of her credibility, I am satisfied that the Claimant’s account of her joint problem, sleeping issues, urge incontinence and excessive bleeding as symptoms of her menopause amount to disabilities within the meaning of the Equality Act 2010.