Mr P Hepworth v Inclusion Gloucestershire and V Livingstone-Thompson: 1401630/2025 and 1401631/2025

EMPLOYMENT TRIBUNALS

Case No 1401630/2025, 1401631/2025

Between

Mr P HepworthClaimant

Inclusion Gloucestershire and V Livingstone-ThompsonRespondent

Before

Employment Judge Volkmer

Date 2 March 2026

REASONS

[1]The Claimant was employed by the Respondent between 3 October 2023 and 23 August 2024 as a Project Manager.

[2]The Claimant commenced the Early Conciliation process with ACAS on 30 May 2024 and the Early Conciliation Certificate was issued on 9 July 2024. The first claim (1401630/2025) was presented on 19 July 2024. The Claimant commenced the Early Conciliation process with ACAS in relation to the second claim on 3 October 2024 and Early Conciliation Certificate was issued on 14 November 2024. The second claim form was presented on 14 November 2024 (1401631/2025).

[3]A Preliminary Hearing took place on 8 September 2025 before Employment Judge Bax. At the hearing the First Respondent (who had been rejected as a respondent for lack of an ACAS certificate) was added in relation to the Claimant’s First Claim as the First Respondent.

[4]Employment Judge Bax listed a hearing to take place on 27 and 28 February 2026 in order to, among other things, consider whether the Claimant was disabled pursuant to section 6 of the Equality Act 2010.

[5]Mr Hepworth’s case is that he was disabled by reason of mental illness and neurodiversity (autism) at the relevant time. He also had physical disabilities, namely osteoarthritis, complicated by asthma and chronic obstructive pulmonary disorder.

[6]The Respondents accepted that the Claimant was disabled by reason of low mood/depression and in relation to his physical disabilities at the relevant time. However, the Respondents disputed that the Claimant was disabled by reason of neurodiversity/autism.

[7]I determined that the Claimant was not disabled by reason of autism/neurodiversity at the relevant time.

[8]The judgment was issued by the judge on 2 March 2026 but unfortunately not sent to the parties until 19 June 2026.

[9]At the time of receiving the reconsideration application, it also became clear that the judgment text incorrectly stated that the Claimant’s disability discrimination complaints were dismissed. I apologise to the parties for this error. This has been corrected by way of a corrected judgment and certificate of correction on the same date as this judgment.

[10]The Claimant made a reconsideration application on 22 June 2026 on the ground that whilst he had never previously sought a formal diagnosis, he is now doing so. Prior to the hearing regarding disability he was not aware of the importance the Tribunal would place on independent expert evidence. He is not currently in possession of such new medical evidence but is now seeking it. As such, it was not included with his reconsideration application. The law on reconsideration

[11]Rules 68 to 70 of the Employment Tribunal Procedure Rules 2024, make provision for the reconsideration of tribunal judgments as follows: “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..”

[12]Under these rules, the Tribunal therefore has discretion to reconsider a judgment if it considers it is in the interests of justice to do so.

[13]Under rule 70(2), the judge must dismiss the application if they consider that there is no reasonable prospect of the original decision being varied or revoked. It is a mandatory requirement for a judge to determine whether there are reasonable prospects of a judgment being varied or revoked before seeking the other party's response and the views of the parties as to whether the matter can be determined without a hearing, potentially giving any provisional view, and deciding how the reconsideration application will be determined: T.W. White & Sons Ltd v White,

UKEAT/0022/21

[14]In Outasight VB Ltd v Brown

UKEAT/0253/14

the EAT held (at [46-48]) that the Rule 70 ground for reconsidering judgments (the interests of justice) (which was the predecessor under the Employment Tribunal Rules of Procedure 2013) did not represent a broadening of discretion from the provisions of Rule 34 contained in the replaced 2004 rules. HHJ Eady QC (as she then was) explained that the previous specified categories under the old rules were only examples of where it would be in the interests of justice to reconsider. The rules removed the unnecessary specified grounds, leaving only what was in truth always the fundamental consideration: the interests of justice. This means that decisions under the old rules remain pertinent under the new rules. I apply the same analysis in relation to the interpretation of the 2024 procedure rules, which refer to the same test: the interests of justice.

[15]The key point is that it must be in the interests of justice to reconsider a judgment. That means that there must be something about the case that makes it necessary to go back and reconsider, for example a new piece of evidence that could not have been produced at the original hearing or a mistake as to the law. It is not the purpose of the reconsideration provisions to give an unsuccessful party an opportunity to reargue his or her case. If there has been a hearing at which both parties have been in attendance, where all material evidence had been available for consideration, where both parties have had their opportunity to present their evidence and their arguments the interests of justice are that there should be finality in litigation. An unsuccessful litigant in such circumstances, without something more, is not permitted to simply reargue his or her case, to have ‘a second bite at the cherry’ (per Phillips J in Flint v Eastern Electricity Board

[1975] IRLR 277

[16]The expression ‘necessary in the interests of justice’ does not give rise to an unfettered discretion to reopen matters. The importance of finality was confirmed by the Court of Appeal in Ministry of Justice v Burton and anor

[2016] EWCA Civ 714

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.”

[17]Rule 70 gives the Tribunal a broad discretion to determine whether reconsideration of a decision is appropriate. Guidance for Tribunals on how to approach applications for reconsideration was given by Simler P in the case of Liddington v 2Gether NHS Foundation Trust

UKEAT/0002/16/DA

. Paragraphs 34 and 35 provide as follows: “34. […] 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 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. Tribunals have a wide discretion whether or not to order reconsideration. 35. Where […] a matter has been fully ventilated and properly argued, and in the absence of any identifiable administrative error or event occurring after the hearing that requires a reconsideration in the interests of justice, any asserted error of law is to be corrected on appeal and not through the back door by way of a reconsideration application.” Assessment of the application under Rule 70(2)

[18]As set out in Liddington, a 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 adopting points previously omitted. Any asserted error of law is to be corrected on appeal.

[19]Reconsideration is not an opportunity for a party to obtain new evidence which it could have obtained prior to the original hearing. The Claimant could have obtained medical evidence prior to the hearing but did not do so. Any reconsideration of this would be a second bite of the cherry, contrary to the principle in Liddington.

[20]Having carefully considered the Claimant’s application and bearing in mind the importance of finality in litigation and the interests of both parties, I am not satisfied that there is any reasonable prospect of the Judgment or any part of it being varied or revoked. Approved by

Evidence

[21]The Claimant’s evidence was that being suspended by the First Respondent on 12 July 2024 his mental health had adversely affected his ability to concentrate and meant that he was experiencing higher levels of anxiety, avoiding social interactions and communication with family was difficult. The suspension was described as significantly worsening what he says are his autism symptoms. He also stated in the impact statement that as a result of his mental illness he had experienced depression, loss of self-worth and confidence and that these symptoms were straining family relationship.

[22]The Claimant’s contemporaneous GP records show a number of entries in relation to the Claimant’s anxiety and depression in terms of the impact of his suspension and his medications were increased in relation to the anxiety and depression as a result.

[23]The Claimant accepted that there would be disruption caused to anyone by being unexpectedly suspended but said that in relation to him it had a significant effect on his mental health. Disability: the Law

[24]Section 6 and schedule 1 of the Equality Act 2010 (the “EqA”) provides that a 4 of 10 person P has a disability if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day to day activities. A substantial adverse effect is one that is “more than minor or trivial” (section 212 EqA), 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 (Schedule 1 paragraph 2(1) EqA).

[25]Schedule 1 par 2(2) EqA 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 that effect is likely to recur”.

[26]“Likely” should be interpreted as meaning “it could well happen” rather than it is more probable than not that it will happen (SCA Packaging Limited v Boyle

(2009) ICR 1056

[27]The burden of proof is on the Claimant to show that he is a disabled person in accordance with that definition.

[28]In Goodwin v The Patent Office

[1999] IRLR 7

, at paragraphs 26-29, it was held that there are four key questions that need to be asked:28.1 “Does the applicant have an impairment which is either mental or physical?

28.2 If so, does the impairment affect the applicant’s ability to carry out normal day to day activities?

28.3 If so, is the effect on the same substantial?

28.4 If so, is the effect on the applicant’s ability to carry out normal day to day activities long term?”

[29]The Code states at Appendix 1 that “There is no need for a person to establish a medically diagnosed cause for their impairment. What it is important to consider is the effect of the impairment, not the cause.”. This is also confirmed in Ms A Robinson v Nottingham Healthcare NHS Foundation Trust:

[2025] EAT 39

(see paragraph 20). In the same case HHJ Tayler also re-affirmed that in relation to proving disability “there is no requirement for evidence to be corroborated for it to be accepted” [29].

[30]J v DLA Piper

[2010] IRLR 936

, it was held: “39. But we do not think that it follows – if Mr Laddie really intended to go that far – that the impairment issue can simply be ignored except in the special cases which he identified. The distinction between impairment and effect is built into the structure of the Act, not only in s.1(1) itself but in the way in which its provisions are glossed in Schedule 1. It is also reflected in the structure of the guidance and in the analysis adopted in the various leading cases to which we have referred, which have continued to be applied following the repeal of para. 1(1) of Schedule 1 (see, eg, the decision of this tribunal (Langstaff J presiding) in Ministry of 5 of 10 Defence v Hay

[2008] IRLR 928

– see paragraphs 36–38 (at pp.927–928)). Mr Laddie’s recognition that there will be exceptional cases where the impairment issue will still have to be considered separately reduces what would otherwise be the attractive elegance of his submission. Both this tribunal and the Court of Appeal have repeatedly enjoined on tribunals the importance of following a systematic analysis based closely on the statutory words, and experience shows that when this injunction is not followed the result is all too often confusion and error.

[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.

(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 paragraph 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 light of those findings.” 31. I am also mindful of the Guidance on matters to be taken into account in determining questions relating to the definition of disability (2011) (Guidance) and the Equality and Human Rights Commission (EHRC) Code of Practice on Employment (2015) and specifically Appendix 1 (Code). 50. The meaning of “normal Day-to-day activities” is not set out in statute but helpful guidance is included in both the Guidance and the Code. 32. Paragraph D3 of the Guidance states that: In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities. Normal day-to-day activities can include general workrelated activities. 33. The Code states that day to day activities include – but are not limited to – activities such as walking, driving, using public transport, cooking, eating, lifting and carrying everyday objects, typing, writing (and taking exams), going to the toilet, talking, listening to conversations or music, reading, taking part in normal social interaction or forming social relationships, nourishing and caring for one’s self. Normal day-to-day activities also encompass the activities which are relevant to working life. 34. In the case of Mr Harry Stedman v Haven Leisure Ltd:

[2025] EAT 82

Judge Stout reminded Tribunals considering substantial adverse effect on day-to-day activities to keep in mind: “(i) that the comparison required by the statute is between the claimant’s abilities as they are with the impairment and as they would hypothetically be without the 6 of 10 impairment; (ii) that it suffices if the claimant experiences a substantial adverse effect on ability to carry out just one day-to-day activity; and (iii) it is not permissible to weigh up a claimant’s ability to carry out one day-to-day activity against another day-to-day activity in order to arrive at some overall assessment of ability to carry out day-to-day activities generally.” [67] 35. Further, in the same case of Stedman v Haven Leisure, Judge Stout addressed diagnoses of autism and ADHD specifically as follows. “Where a Tribunal has before it evidence of a clinical diagnosis of autism or ADHD, accordingly, then (unless there is some reason to doubt the reliability of that clinical judgment), the Tribunal must take that diagnosis into account not just as evidence that someone has a condition or impairment, but as evidence as to the impact of that impairment. The diagnosis means they have been judged by a clinician to have significant (i.e. clinically ‘more than minor or trivial’) difficulties with the areas of functioning covered by the diagnosis.” [60] 36. The material time for considering whether the impairment had (or was likely to have) a long term effect is the date of the alleged discriminatory act (All Answers Ltd v W

[2021] EWCA Civ 606

, CA) and events occurring after the date of the alleged discriminatory act should not be taken into account in considering if the effect of the impairment was long term. Whether an impairment is ‘long term’ is directed to the effect of the impairment, rather than the underlying impairment itself: Seccombe v Reed in Partnership Ltd, EA-2019-000478-00, at paragraph 29. Findings of Fact / Conclusions At the material time was there a substantial adverse effect on the Claimant’s ability to carry out normal day to day activities? 37. The Claimant’s allegations span the period from 6 January 2024 to 22 January 2024. This is the relevant time for determining whether the Claimant was disabled. 38. As set out in the impact statement, the Claimant’s case is that he has autism and that it affected the following day-to-day activities for his whole life prior to being suspended on 12 July 2024:

38.1 social interactions: the Claimant says that he struggles with interpreting emotions, body language and the spoken word. He finds it difficult to recognise sarcasm and irony. The Claimant is anxious and feels discomfort in social situations, finding small talk difficult, preferring factually focused conversations.

38.2 understanding written and visual instructions: he finds it difficult to understand complex written instructions and pictures as well as hypothetical situations;

38.3 the Claimant said that he found it difficult to deal with significant unforeseen change like being suspended. 7 of 10 39. After suspension he says that he experienced the following:

39.1 difficulty concentrating;

39.2 worsening anxiety;

39.3 avoiding all social situations;

39.4 social interactions were significantly more difficult. 40. “Substantial” means more than minor or trivial and is not a high bar. The comparison is between the Claimant’s abilities as they are with the impairment and as they would hypothetically be without the impairment. Social interactions before suspension

[41]Taken as a whole, I consider that the Claimant’s evidence was that before being suspended on 12 July 2024 he had some difficulties with social interactions, but he was able to make use of NLP to overcome this on a day to day basis. Although he could do it, he felt that it used a lot of his energy. The Claimant was able to manage a long career in the military. Whilst there were two isolated historic comments about the Claimant being abrasive, I consider that this does not show that the effect is substantial. The Claimant described himself as an excellent communicator when making his job application and did not feel that he needed to ask for adjustments when he started work at the Respondent. In my finding that is because the difficulties were insubstantial.

[42]Notwithstanding the Claimant’s position that he did not say it, I consider that the reference to saying he had “overcome” autistic tendencies in a meeting with his line manager is likely to be correct as it is contemporaneous and consistent with his own evidence in the hearing in relation to the time before he was suspended.

[43]It is not unusual for people to find social interactions tiring and to have to think about how they interact. I do not find that the Claimant has proven that this experience is any different to how he might have hypothetically felt if not disabled.

[44]I find that the picture of a whole is that there was an effect on the activity of social interaction, but that effect was not substantial. Understanding written and verbal instructions before suspension

[45]In relation to understanding verbal and written instructions, I also find this was an effect for the Claimant, but also an insubstantial one.

[46]The Claimant was senior in the military, holding the rank of major. He had a long career there without problems in this regard.

[47]The Claimant was able to understand written and visual instructions when working at the Respondent. On his own evidence, he did so and produced high quality work. 8 of 10

[48]The Claimant did not ask for adjustments in this regard when he started work at the First Respondent because he did not feel he needed any.

[49]Flat pack furniture assembly instructions are notoriously difficult to understand, and it is difficult to see that there is anything described which is outside of the normal range of what many people find difficult.

[50]I find that the effect is insubstantial for the Claimant when compared to how it would hypothetically be for him without the pleaded disability. Dealing with change before suspension

[51]In relation to dealing with change, as was put to the Claimant, most people would struggle to deal with a significant change like a suspension from work which they have not anticipated. No other, more ordinary examples were provided. Many people become abrasive/defensive when put under pressure. I am not satisfied on the evidence that this is a substantial effect when compared with the Claimant, hypothetically without disability. It would be unusual not to find being suspended difficult. Effect of suspension on 12 July 2024

[52]I find that there was a significant mental health impact on the Claimant of the surprise suspension, based on the Claimant’s witness evidence and the GP records.

[53]Based on the Claimant’s oral evidence in which he spoke about his mental health, and the GP records, I consider that the evidence supports a link to mental health (a disability which has been conceded) rather than autism.

[54]I find that there was an effect on day to day activities as referred above at paragraph 39. After the suspension, these effects were significant. The Claimant’s witness evidence, which is supported by the medical records shows that these activities became very difficult and in relation to social interaction became almost impossible because the Claimant felt that the pressure of the surprise suspension had removed the Claimant’s ability to cope with them. Impairment

[55]It is clear that the legal framework is designed to avoid the need for expensive and hard to access medical diagnoses in order to rely on the protections afforded by the Equality Act 2010 in relation to disabilities. Nevertheless, as set out in the case of J v DLA (see above), the question of impairment cannot be avoided entirely.

[56]The Respondent has conceded that the Claimant was disabled by reason of depression and anxiety at the relevant time.

[57]I find based on the Claimant’s impact statement when considered together with the medical evidence that the substantial adverse effects I have found to have happened following the date of suspension are more likely be linked to the 9 of 10 Claimant’s depression and anxiety. They are well documented in his GP records in connection with those conditions.

[58]Save for the Claimant’s assertion (as someone who is not a medical professional), there is no evidence upon which to base a finding that neurodiversity/autism was a cause of these substantial adverse effects. I find that this has not been proven.

[59]I find that The Claimant was not disabled for the purposes of section 6 of the Equality Act 2010 by reason of neurodiversity/autism. Approved by