Mr M Strickland v Leeds City Council: 1801490/2018
EMPLOYMENT TRIBUNALS
Case No 1801490/2018
Between
Mr M StricklandClaimantLeeds City CouncilRespondent
Before
Employment Judge LicorishIn person for claimantMr R Brown (instructed by Solicitor) for respondentDate 8 March 2019
JUDGMENT
At the material times, the claimant was a disabled person within the meaning of the Equality Act 2010.
REASONS
[1]This Preliminary Hearing was listed to determine whether, having regard to the provisions of Section 6 and Schedule 1 to the Equality Act 2010 (“EqA”), the claimant was at the relevant time a disabled person and therefore entitled to bring a complaint of disability discrimination.[2]The issues to be determined, as identified during a previous preliminary hearing on 27 April 2018, are:2.1 Did the claimant have the mental impairment of depression between August 2016 and August 2017, or at any point during that period?2.2 If so, did the impairment have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities?2.3 If so, was that effect long term? In particular, when did it start and:2.3.1 had the impairment lasted for at least 12 months?2.3.2 Was the impairment likely to last for at least 12 months?2.4 Were any measures being taken to treat or correct the impairment? But for those measures, would the impairment be likely to have had a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities?[3]During the hearing, the Claimant gave evidence by way of a written witness statement, which was taken as read by the Tribunal, and with my permission provided supplementary oral evidence relating to the medical evidence contained in an agreed bundle of documents (initially comprising 70 pages). I also gave the respondent permission to add to the bundle a short extract from a transcript of the claimant’s appeal against dismissal (at pages 70A and 70B). The claimant was given time to read that additional document whilst the Tribunal read his statement and the relevant documents. The page numbers in these Reasons refer to the relevant pages in the complete bundle of documents before the Tribunal. The hearing overran its time allocation to the extent that the Tribunal reserved its decision. The Claimant’s evidence[4]The claimant believes that, in hindsight, he started to suffer from depression in around January 2016 as from that time he experienced a number of ailments which were out of character, including flu symptoms, body aches, fatigue, not sleeping and severe headaches. He says that he finds it difficult to relate his symptoms to specific dates, because it was an ongoing process during which he deteriorated over time.[5]The claimant describes the effects of his condition on his day-to-day activities from around January 2016 as follows:5.1 He wouldn’t know whether he would wake up in the morning.5.2 As his physical symptoms became worse, his mental decisionmaking changed.5.3 He believed the world was against him, as a result of which he isolated himself from loved ones and friends. During his evidence, he explained that he used to park his car away from his house so that visitors would assume he was out.5.4 He had periods during which he could not leave the house because he was overwhelmed with fear and anxiety.5.5 He did not understand what was “going on”.5.6 He was more than exhausted all of the time and would stay in bed for up to three days at a time. He had a spiral of not sleeping followed by pure exhaustion.5.7 He thought that his loved ones would catch his depression, and therefore stayed away from them and could not speak about it.5.8 He started to become numb and lose all interest in living. He thought that it would not be such a bad thing not to wake up in the mornings. He was not suicidal, but indifferent to living.5.9 He missed medical appointments as his brain was unable to retain information.5.10 His decision-making became erratic and made no sense. He lost his appetite and went for long periods without eating or drinking.5.11 His mood swings were terrible as he was on edge all the time.[6]The claimant also says that he was prescribed the anti-depressant Citalopram at 40mg (the highest possible dose). In his view, the medication did not “fix” his depression and his symptoms remained as he describes. He explained to the Tribunal that the medication “kills off your feelings” to the extent that no longer cared about how bad he felt. GP records[7]On 19 January 2016, the claimant was given a repeat prescription for Citalopram 20mg, one tablet a day (page 2). In response to the Tribunal’s questions, the claimant could not remember specifically why he was prescribed anti-depressants at this time, but thought it was because he could not sleep. The same prescription is repeated in April and June 2016 (pages 3 and 4). The claimant also reported suffering from severe headaches during that period. In August 2016, he was given a further prescription for Citalopram 20mg, and complained of lack of sleep owing to low back pain and sciatica (page 6).[8]On 30 August 2016, the claimant was “feeling apathetic, poor motivation ++3 w + … diff to disc feelings with partner … Avoiding social contact at present … (1 for ‘better off dead’ – nihilistic rather than suicidal thought. Diagnosis: Depression. Plan: Cert2w & rev. Disc options re depression: agreed ^ citalopram 40mg od & rev, & to self-refer to IAPT” (page 10).[9]On 12 September 2016, a further consultation is coded: “Depressive disorder (New Episode)”. The GP’s note states: “Mood lifted a little – more motivated … Feels ^ anxious, esp people ++, sweaty at times, poor sleep” (page 10). On 4 October 2016, a further appointment is described as “Depression interim review”. The claimant reports “mood improved – feels sig better occ days. Worrying re work”. By 18 October 2016, the claimant is described as: “Very well, feeling great & arranged to start phased return next Mon … Disc continuing Rx until stable before any dec.” (page 11).[10]On 18 November 2016, the claimant is given a repeat prescription of Citalopram 20mg, two tablets a day (page 11). On 21 November 2016, a GP notes that the claimant is “struggling with anxiety, thinks work are trying to dismiss him and making it difficult for him … tablets have helped with mood but still very anxious, describing a few panic attacks lately, losing temper easily … will try beta blocker for physical symptoms of anxiety as well, also refer to IAPT service for CBT”. The claimant is given a prescription for the beta blocker Propranolol 40mg. The appointment is described as “depression interim review” (page 7).[11]On 1 December 2016, the claimant’s GP records that the claimant is “struggling with depression and anxiety a lot … taking citalopram and propranolol with little benefit … will go for CBT … trying meditation”.[12]On 5 January 2017 the claimant is signed off work. The MED3 cites anxiety and depression. A repeat prescription from the previous day advises that he should continue to take Citalopram 20mg two tablets daily (page 7). On 10 January 2017, the claimant states that he is “feeling a lot better & and has agreed phased return from yesterday”. His GP issues a new fit note: the specified condition remains “anxiety and depression”, but suggests that the claimant may be fit for work. In March 2017, the claimant is given a further prescription for Citalopram 20mg, two tablets daily (page 8).[13]In May 2017, the claimant returned from a holiday abroad with an upper respiratory tract infection which he is worried may turn into pneumonia. On 22 May he says he has been experiencing intermittent headaches with visual disturbance. He is signed off work with “viral illness? visual sx” and referred for further tests. On 8 June 2017 he says: “headaches practically gone. V stressed work threatening to sack him, getting panic attacks”. His doctor prescribes Citalopram 40mg and Propranolol, and signs him off work. The reason for the claimant’s absence is stated to be “severe headache” (pages 9 and 13).[14]In around late June 2017, the claimant developed compartment syndrome after banging his right forearm at work a few weeks earlier. He had an emergency operation and was discharged on 6 July. It is thought that this may have been the cause of his headaches (page 14).[15]On 7 September 2017, the claimant’s GP notes: “memory affected by recent events will be talking & gets distracted by other thoughts, feels recent events has had major impact & wants to have counselling, gen feeling positive about changes, lost job but less stress … has decr citalopram to 20mg & wants to decrease further. Plan: adv cont 20mg 1m more.” On 12 September 2017, the claimant is described as having “anxiety disorder” (page 15). Occupational health (“OH”) records[16]On 24 August 2016, the respondent sought OH advice. At that time, the claimant advised his line manager that he “suffers with depression” (page 19). The referral asks whether “any medical problem/health problem is likely to be continuous or recurring in nature” (page 20). The claimant was eventually reviewed on 17 October 2016, following a six-week absence from work (pages 26 to 27). He says during that assessment that “he has suffered depression in the past”. It is noted that he has made some improvement on new medication and plans to return to work on 24 October. The adviser also states: “Stress and depression may recur when triggered, as has already been the case with [the claimant].”[17]The claimant was next referred to OH in November 2016 following an absence from 22 November 2016 citing “anxiety and stress” (pages 28 to 30). The adviser encourages early resolution of what the claimant has identified as work-related issues, and repeats her advice about the possibility of a recurrence of stress and depression once triggered, “as has already been the case with [the claimant]”.[18]In February 2017, the claimant is referred to OH again having advised his supervisor that he “suffers with depression” (pages 32 to 36). A report dated 7 March 2017 states (pages 39 to 41): “[The claimant] advised that his psychological health first began to decline around December 2015 and over the preceding months his symptoms became gradually worse. He reported problems sleeping, feeling tired, lack of energy/motivation and low mood. I understand that he used his annual leave during particular difficult periods when he felt unable to go into work. He tells me that he went to see his [GP] around July 2016 who advised him he was suffering from depression. He was prescribed antidepressants to help with his mood the dosage of which was later increased when the initial treatment did not have the desired effect. [The claimant] incurred some periods of absence during the latter part of 2016 as a result of his depression … He is receiving active treatment for depression ... He has made a good recovery following his depressive episode and is doing everything he can to maintain his health. However once depression has been triggered there is an increased risk of further episodes … [He] is likely to remain vulnerable due to his ongoing personal/family situation” [emphasis added].[19]The respondent obtained a further report in July 2017 following the claimant’s hospitalisation for compartment syndrome (pages 52 to 53). The OH adviser also addresses the claimant’s “symptoms of stress and anxiety”. Among other things, she states: “Until the situation causing [the claimant’s] stress and anxiety are resolved to his satisfaction he will remain symptomatic.” She repeats that advice in a further report dated 22 August 2017 (pages 60 to 62).[20]In December 2017, but relevant to the period in question, an OH doctor advises the respondent prior to determining the claimant’s appeal against dismissal: “I do consider it possible that having the [arm injury] would exacerbate an existing mental health condition” (pages 69 to 70).
The Relevant Law
[21]Section 6 of the EqA, so far as it is relevant, 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. … (5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1). (6) Schedule 1 (disability supplementary provisions) has effect.[22]Schedule 1 Part 1 of the EqA deals with long term effects: “2(1) The effect of an impairment is long-term if –(a) it has lasted for at least 12 months,(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected. (2) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. 5(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if – (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect. (2) ‘Measures’ includes, in particular, medical treatment.”[23]A Tribunal must take into account any aspect of the Guidance issued under section 6(5) of the EqA (2011) which it considers to be relevant. The Guidance provides: “Meaning of ‘substantial adverse effect’ B1. The requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is greater than the effect which would be produced by the sort of physical or mental conditions experienced by many people which have only ‘minor’ or ‘trivial’ effects (this is stated in the Act at s212(1)). It should be read in conjunction with Section D which considers what is meant by ‘normal day-today activities’. Cumulative effects of an impairment B4. An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular activity in isolation. However, it is important to consider whether its effect on more than one activity, when taken together, could result in an overall substantial adverse effect. B5. For example … A man with depression experiences a range of symptoms that include a loss of energy and motivation that makes event the simplest of tasks or decisions seem quite difficult. He finds it difficult to get up in the morning, get washed and dressed, and prepare breakfast. He is forgetful and cannot plan ahead. Household tasks are frequently left undone, or take much longer to complete than normal. Together, the effects amount to an impairment having a substantial adverse effect on carrying out normal day-to-day activities … Recurring or fluctuating effects C5. … Conditions with effects which recur only sporadically or for short periods can still qualify as impairments for the purposes of the Act, in respect of the meaning of ‘long-term’ … C6. For example, a person with rheumatoid arthritis may experience substantial adverse effects for a few weeks after the first occurrence and then have a period of remission … If the substantial adverse effects are likely to recur, they are to be treated as if they are continuing. If the effects are likely to recur beyond 12 months after the first occurrence, they are to be treated as long-term. Other impairments with effects which can recur beyond 12 months, or where the effects can be sporadic, include … certain types of depression … C7. It is not necessary for the effect to be the same throughout the period which is being considered in relation to determining whether the ‘long-term’ element of the definition is met. A person may still satisfy the long-term element of the definition even if the effect is not the same throughout the period. It may change: for example activities which are initially very difficult may become possible to a much greater extent. The effect might disappear temporarily. Or other effects on the ability to carry out normal day-to-day activities may develop and the initial effect may disappear altogether.” Meaning of ‘normal day-to-day activities’ D2. …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 or travelling by various forms of transport and taking part in social activities. Normal day-to-day activities can include general work-related activities … such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or shift pattern.[24]A Tribunal need not be satisfied that the recurrence is likely to last 12 months. Further, it is the effects that must be likely to recur, not necessarily the impairment. The word “likely” in paragraph 2(2) of Schedule 1 means “could well happen” rather than “possible” or “more likely than not”.
Conclusion
[25]The claimant and respondent’s representative made oral submissions which I considered with care. I do not set them out in full, but summarise them below where necessary.[26]In general terms, although the claimant’s evidence during the hearing was at times confused in terms of the chronology of events, and he tended to misunderstand what was being asked of him, I found him to be a credible witness. I am not prepared effectively to disregard the claimant’s evidence (as the respondent submitted) simply because his impact statement fits too neatly into the definition of disability contained within the EqA. The claimant was specifically ordered to provide a statement in such terms and directed to official guidance in order to do so.[27]In reaching my conclusions I also reminded myself that the claimant does not bear the onus of producing medical evidence to underpin each element of the definition of disability, so that in the absence of such evidence their case is bound to fail. It is the responsibility of the Tribunal to assess the medical evidence that is presented and thereafter conclude for itself whether the claimant was a disabled person at the relevant time.[28]Turning to the first issue: did the claimant have a mental impairment, namely depression, between August 2016 and August 2017 (or at any point during that period)? The respondent argues that the claimant’s evidence and the documents suggest no more than an adverse reaction to life events rather than a specific mental impairment. The respondent relies on the cases of J v DLA Piper UK [2010] ICR 1052 and Herry v Dudley Metropolitan Council and ors (UKEAT/0100/16/LA; UKEAT/0101/16/LA) in this respect. In Herry the EAT concluded that a Tribunal properly applied guidance contained in the DLA Piper case and rejected the claimant’s contention that he had a disability in the context of absences described variously as “stress” or “work related stress”.[29]In the claimant’s case (and based on my conclusions below in terms of the adverse effect of his condition, and the longevity of that effect), I am satisfied that the claimant was not simply fed up, stressed or unhappy about his work or any other personal situation. From August 2016, his medical notes contain a diagnosis of “depression” and “depressive disorder” which included “anxiety” and “anxiety disorder” (as set out at paragraphs 8 to 12 above). I am therefore satisfied on balance that the claimant had the mental impairment of depression during August 2016 and August 2017.[30]Next I considered whether that impairment had a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities. The respondent’s position is that I should not accept the claimant’s evidence in this respect because the documentary evidence does not suggest a sufficient level of impairment beyond two separate absences from work between August 2016 and January 2017 (79 working days in total). All other aspects of the claimant’s ill health comprised minor physical ailments which led to short-term absences from work.[31]I accept the claimant’s evidence that the effect of his condition on his dayto-day activities was more than minor or trivial. According to that evidence (summarised at paragraph 5 above) the claimant experienced cycles of sleeplessness and exhaustion, as well as anxiety and detachment, and his mood swings and decision-making were erratic. Among other things he avoided social interaction or activities, could not leave the house at times or get out of bed, was unable to retain information, and stopped eating. His ability to understand was also affected. Descriptions of his symptoms, including panic attacks, are recorded by his GP between August 2016 and June 2017. His medical notes also show that he missed a number of appointments. In September 2017 the claimant complained of continuing poor memory and asked for counselling to address what he describes as the major impact of recent events.[32]I am therefore satisfied on balance that the range of symptoms the claimant describes and contained in the documents, and the resulting effect on his day-to-day activities together amounted to a substantial effect in accordance with paragraphs B4 and B5 of the Guidance (quoted at paragraph 23 above).[33]I next considered whether the substantial effect was long term. In particular, when did it start, had the effect of the impairment lasted for at least 12 months, or was the effect of the impairment likely to last for at least 12 months?[34]The respondent submits that any substantial effect should be confined to the six-month period from August 2016 to January 2017, during which the claimant was largely signed off work. The claimant maintains that he was substantially affected by his condition on a day to-day basis for two years, throughout 2016 and 2017. The effect was continuous. It began in January 2016, but he “went downhill” from the middle of 2016. He spent the six months he was on long-term sickness absence “getting to grips” with what was happening to him.[35]In response to the tribunal’s questions, the claimant also clarified what he meant by the comment made during his OH examination in October 2016 that he had suffered depression in the past. At that point he was referring to how he felt at the beginning of the year. He says he now realises that his illness was “all one lump” – that is, his condition was book-ended by a gradual onset and eventual recovery. In cross-examination, the claimant accepted that he began to get better after he was dismissed from his job at the end of August 2017. He says that he was not “completely free” of his symptoms before the end of 2017.[36]The respondent maintains that because the claimant’s medical records make no reference to anxiety or depression before August 2016, he cannot have been substantially affected by that condition before that time. I am not completely persuaded by that argument.[37]First, the claimant’s account of the onset of his ill health is supported by the description he gives to an OH adviser, contained in her clinical note dated 7 March 2017 (page 37): “Hadn’t been feeling well since around Xmas 2015 – didn’t know what was wrong. Initially used his annual leave when he hadn’t felt up to going to work. When he had used his annual leave he started to take time off sick. Generally felt tired – low – run down – suffered minor ailments – colds etc – struggled to get out of bed on some day [sic] – felt low/flat. Didn’t feel like – or do anything – stopped seeing his children. Saw GP around July 2016 – was diagnosed with depression. Prescribed anti-depressants … In January [2017] he went to see his GP – started to feel a bit better – discussed coming off medication. GP advised it would be hard – suggested meditation. He has been going since – finds this really helpful”.[38]Secondly, as at January 2016 the claimant’s medical records show that he was taking an anti-depressant on repeat prescription, which suggests that there had been an issue identified prior to that date albeit to do with his insomnia. He also used up his annual leave during the first half of 2016 when he felt unable to go into work.[39]Nevertheless, the claimant in his witness statement was unable to identify with any precision when his day-to-day activities became substantially affected. Based on what I have read and heard, I conclude on balance that this was in around the end of July 2016, following which he went to see his GP in August 2016 having experienced significant symptoms for more than 3 weeks, and as a result of which he was diagnosed with depression.[40]I next considered for how long the claimant was or likely to be substantially affected. During his illness, the claimant does seem to have had periods when he was feeling comparatively well. For example, the claimant’s GP describes the claimant as “very well” in October 2016. However, the GP goes on to advise the claimant against coming off medication because he is not “stable”. Thereafter the claimant attends an interim review for depression in November 2016. Throughout the medical notes there are references to an improvement in the claimant’s mood but owing to the prescribed medication. In response to the Tribunal’s questions, the claimant explained that medication gave him “time to breathe”.[41]The OH clinical note quoted above (at paragraph 37), however, records that the claimant appeared to have recovered and his day-to-day activities were largely unaffected as at the beginning of March 2017. Nevertheless, the claimant remained on anti-depressants at that time. Unfortunately, towards the end of June 2017 there was also the intervening diagnosis of compartment syndrome. However, I am not persuaded that the effects of the claimant’s depression simply went away, to be replaced by another physical impairment on which he does not rely for the purposes of these proceedings. This is because, although he is signed off with “headaches” at the beginning of June 2017, he actually reports that the headaches have gone, and the combination prescription of an anti-depressant at the highest dose and beta blocker tablets first given to the claimant to address his depression and anxiety is repeated at that time. OH advice (quoted at paragraph 20 above) also suggests that the physical impairment could exacerbate an existing condition of depression. The claimant remained on anti-depressants as at the end of August 2017.[42]In the circumstances, on balance I am satisfied that the substantial adverse effect of the claimant’s condition on his day-to-day activities (absent the effect of any treatment) had lasted for at least 12 months from the end of July 2017. Before that date, I must consider the circumstances in around August 2016 to determine whether the effect of the claimant’s impairment was likely to be long-term, including whether it was likely to recur.[43]Further and separately, if I had been persuaded that the substantial effect of the claimant’s condition was only sporadic during the relevant period (and, in particular, ceased to have a substantial effect from around March 2017), I would have gone on to consider paragraph 2(2) of Schedule 1 Part 1 of the EqA and section C of the Guidance in any event.[44]In this respect I conclude, on balance, that the substantial adverse effect of the claimant’s condition in August 2016 should be treated as long term. This is because all of the OH reports effectively state that depression once triggered could well recur, as had been the case with the claimant. In March 2017, the claimant was also identified as “vulnerable” owing to personal/family issues (quoted in emphasis, at paragraph 18 above). As a result, I conclude that the adverse effect of the claimant’s impairment was at the very least likely to recur beyond 12 months after the initial onset, and therefore should be treated as long-term.[45]On that basis I am satisfied that at the material times the claimant was a disabled person within the meaning of the Equality Act 2010.
Findings of fact
[46]On 7 September 2017 the claimant’s GP reported that the claimant felt his memory was affected by recent events and he wanted counselling, but that he was feeling positive (less stress) since he lost his job, and had reduced to 20mg of citalopram and wished to decrease further. He was advised to maintain 20 mg for one more month.[47]There was then an appeal against his dismissal presented by the claimant within a few days. The appeal raised two grounds: the failure of the adjournment upon the late submission of the documents; and asserting that “all recent sicknesses are related to my arm injury eg headaches etc which was overlooked. Could you please forward any appeal dates or documents to Darren Travis at the GMB Civic Hall who will be dealing with my appeal”. The appeal was received by the respondent on or around 11 September 2017.[48]The claimant’s appeal hearing took place before Mr Mulcahy one of the respondent’s chief officers on 5 November, at which two trade union representatives attended on behalf of the claimant and there was again a full hearing of all the matters. Mr Mulcahy decided to seek occupational health advice in connection with the claimant’s assertion, as put by his union representatives in the appeal, that his subsequent period of ill health may well have been connected to his depression. That question was answered in the negative, but the gist of the occupational health advice, Dr Miranda having seen the claimant and reported by December, was that his arm injury was sufficiently recovered by November for him to be fit to return to work. He further advised and that the arm injury and vision and headache matters were not connected to the claimant’s depression, albeit Dr Miranda advised that the claimant’s arm injury could well exacerbate his depression. Dr Miranda did not indicate that there were health issues at that time preventing the claimant from, for example, presenting his complaints to the Tribunal.[49]Having reviewed that occupational health advice Mr Mulcahy decided to maintain the claimant’s dismissal and confirmed that in a letter to him on 10 January 2018.[50]On 15 January 2018 the claimant commenced early conciliation and received a certificate the same day, and on 23 January 2018 presented his claim form which said as follows, asserting both disability discrimination and unfair dismissal: “I worked for LCC for over two years. At some point I became aware of mental health problems. I reported these and therefore was taken down the disciplinary route. This continued to the end. The currently Mental Health Act is there for a reason. I was told at my Stage 3 hearing not to have more than two days off and that’s that. There was an incident with a breach of confidence which was noted at the time. I then became seriously ill, maybe a brain tumour, loss of sight. I then suffered compartment syndrome. I awoke in hospital and I was still taking huge amount of painkillers etc into the November. I received a letter to say that I had been dismissed even though I had spoken to HR to explain that my mental health problems were quite difficult so could not attend. And also a document was provided 46 pages and I asked for time to look at this. Still no mental health help. I appealed my dismissal and was told three days I would have my decision. I didn’t receive it for three months. At no point was I told about ACAS services or what I should be doing. I now seek to go to a Tribunal. My rights and my dignity have been abused”. Discussion and conclusions[51]The unfair dismissal complaint. It is convenient to deal with that first. The chronology is that the complaint was presented on 23 January 2018 and the effective date of termination of the claimant’s employment was 31 August 2017 when he was forwarded Mr Finch’s dismissal decision. Entering 31 October 2017 as the date when his employment ended in his claim form, was an error. The claimant commenced ACAS conciliation on 15 January and he was given an ACAS early conciliation certificate the same day.[52]The law: the Employment Rights Act 1996 relevantly provides at Section 111 (2) that “an employment tribunal shall not consider a complaint under this section unless it is presented to the tribunal –(a) before the end of the period of three months, beginning with the effective date of termination, or(b) within such further period as the tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months”.[53]The claimant was represented by the GMB union throughout the various hearings in this matter. His claim form appears to contain a complaint that the GMB did not tell him about the need to contact ACAS or, by inference, present a complaint. In correspondence he also said that he was unwell and had suffered a breakdown after his dismissal. On the other hand he also said he felt a weight had been lifted and was living with his mother. The assertion of a breakdown between August and November were not mentioned in the appeal, nor was the medical evidence to that effect (either the GP note in September, or Dr Miranda’s report in December). We do not accept the claimant’s chronology of his health and prefer the documented medical evidence in this respect.[54]We ask ourselves was it reasonably practicable for the claimant to present the complaint of unfair dismissal within the relevant time limits, which were not extended in this case by ACAS conciliation because the primary limitation period expired at the end of November. The 1996 Act test amounts to, was it practically doable for the claimant to present his complaint in time, given the circumstances at the time?[55]We have found that at the relevant time the claimant had faced a number of unfortunate events and was disabled by depression but not in a state of breakdown. We also note that he was supported fully by the GMB throughout and that he was able to appeal his dismissal within days and in January present his complaint, albeit in very concise terms, but also indicating that he realised limitation was an issue. We also note that in Dr Miranda advised the claimant was fit to return to work in December. In our judgment, it simply cannot be said in these circumstances that it was not doable for the claimant to have presented his unfair dismissal complaint before the end of November, given his access to a well respected union, the advice available to him, the union’s apparent willingness by their attendances at hearings and the like, to act for him, and his relative health at the time. We therefore dismiss the unfair dismissal complaint. The Equality Act complaints[56]In relation to the Equality Act complaints of disability discrimination, the last of these was an allegation that the maintenance of the dismissal on appeal was an act of disability discrimination, and that complaint was presented in time. The Tribunal therefore had to consider limitation issues in relation to the earlier complaints, but we had to address their substance to be able to consider whether there was continuing discriminatory conduct such that they were presented in tim.[57]Section 26 of the Equality Act 2010 relevantly provides as follows: “ (1) A person (A) harasses another if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) The conduct has the purpose or effect of – (i) Violating B’s dignity, or (ii) Creating an intimidating, hostile, degrading, humiliating or offensive environment for B. (4) In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account – (a) the perception of B (b) the other circumstances of the case ( c) whether it is reasonable for the conduct to have that effect.[58]Section 13(1) of the Equality Act 2010, relevantly provides: A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Allegation i: from August 2016 inviting the claimant to hearings and ultimately his dismissal within the respondent’s managing absence/performance procedure (Mrs Uttley) (harassment/direct discrimination)[59]We consider that our chronological findings of fact reflect three clear phases of management of the claimant’s absence. In the first year of employment, before there was any absence known to be related to depression, there are nine absences of varying lengths all of which would have been sufficient at the end of that first year to have progressed through the absence management procedure, potentially to dismissal. Mr Nichols was dealing with Stage 1 and Stage 2 of the procedure at that time and he progressed it, but not very quickly: when Stage 3 was triggered in the summer of 2016 Mr Nichols did not progress the claimant to such a hearing. He had been dealing with short intermittent absences for unrelated reasons. This was phase 1.[60]The claimant then experienced longer term absence for depression and Mrs Uttley started to manage matters because, we accept, she was better able to cope with the paperwork associated with longer term absence. She completed four referrals to occupational health between 24 August 2016 and 29 November 2016 and she attended meetings including a meeting in February when she decided to refer the claimant for a Stage 3 hearing. This was the second phase where there was some support provided in relation to mental health in the form of a phased return to work and occupational health reviews.[61]In the third phase of the chronology the claimant was impacted by a series of unfortunate matters: his mother’s ill health, the onset of headaches and investigation for a brain tumour, and then the very serious arm injury. To be affected by such matters within one year is outside the normal range of bad luck, and it was during this period that the consideration of his dismissal took place in April 2017 by Mr Finch, the management case for that being presented by Mrs Uttley, but ultimately rejected at that time in favour of a further review period.[62]We accept against this background that Mrs Uttley’s conduct over the second and third phases was unwelcome to the claimant. Was it in any way related to the fact of his mental impairment, his disability? In our judgment it was not. Her conduct was the continuance of the management of his absence, in line with the procedure, in the context of previous poor attendance for unrelated reasons. There was no evidence at all that a person with a similar absence record, but without the claimant’s disability of depression would have been treated more favourably.[63]The real case being put by the claimant was that Mrs Uttley set out to harass and dismiss him because of his depression, whereas Mr Nichols had not done so in relation to earlier absences. The difficulty with the claimant’s belief is that the claimant’s situation in phase 1 is not properly comparable with phase 2: Mr Nichols was dealing with short intermittent absences for unrelated reasons and he managed the workload accordingly. A much longer spell of absence for mental illness required a different approach, more paperwork and advice from occupational health. When the full chronology is set out, including the reason for Mrs Uttley’s involvement, and the fact that dismissal arose after phase 3 when there had been further events unrelated to depression (or at least there was no evidence they were so related), the claimant’s complaint of harassment or direct disability discrimination by Mrs Uttley must fail. Allegation iii: in November 2016, after an agreement that any letters would be sent to his home address or given to his GMB representative, Messrs Priestley, Nicholls and Reeves giving the claimant a letter[64]Our factual findings determine this complaint. We consider that the agreement to which the claimant referred might well have arisen after the claimant’s outburst on 14 November or thereabouts, but up to that point there was no such agreement; the contemporaneous documents and evidence are against him and we do not consider his recollection reliable. The complaint must fail. The reason why the letter was given to him was because it was a convenient way of letting him know the first level outcome of his grievance, and nothing more.[65]Notwithstanding these conclusions we do weigh in our discussion in the round that the claimant had his enrolment for the multi trades course stopped in July 2016 before any suggestion of mental ill health, by some member of management, and that the investigation into the grievance at this early stage was wholly inadequate, and that there was incorrect information provided by management in that investigation. Given this poor treatment, handing an outcome letter to the claimant dismissing his grievance in these circumstances was entirely unwelcome and unhelpful, but it was not harassment connected with disability. Allegation iv: on 13 December 2016 Mrs Uttley stopping the claimant’s wages (at Christmas)[66]The Tribunal was assisted in its findings by some late documents provided by the respondent. We consider our findings of fact demonstrate extremely poor treatment of the claimant in the round by both the customer service centre and by line management including Mrs Uttley: there was a complete failure by line management to communicate with the claimant on one the most important aspects of the employment relationship: entitlement to payment. We have not found that Mrs Uttley gave any direct instruction that the pay must be stopped. We accepted her evidence about that. She was not, after all, the claimant’s direct line manager.[67]The reason why pay was stopped by the customer service centre, or pay roll, was, on the balance of probability, simply its duty to look after the public purse. There was no entitlement to a full wage for December because of sickness absence. And payment was stopped after the instruction had been sent to the bank, which resulted in things changing after the claimant had been told by telephone by payment would be made by the CSC. That is not conduct related to disability in our judgment, or less favourable treatment because of disability. There was no evidence that such communication failures would not have arisen in relation to an employee with similar absence but without the claimant’s disabtiliy. On the other hand we accept this state of affairs was entirely unwelcome, unhelpful and very poor treatment of the claimant at the time.[68]The complaint fails because the facts are not as the claimant believed them to be, notwithstanding that as before, the communication with him on this issue was unwelcome and poor. Allegation v: in February 2017 Mr Reeves asking the claimant to evidence his mother’s cancer;[69]We have found on balance that Mr Reeves requested this evidence, albeit his evidence was he had not. We do not infer anything from that denial; these events were long ago and he considered it unlikey because he had his own family member affected by cancer. Was this unwanted conduct related to the claimant’s disability? It was not. It was simply a request because special leave was seeking to be authorised. There was no evidence to suggest that an employee without his disability would not have been asked to provide evidence. That complaint fails as both harassment and direct discrimination. Allegation vi: in February 2017 Mrs Uttley saying words the gist of which was “it is not about your mum’s cancer you are on a Stage 3”, characterised as dismissive and rude.[70]We have accepted that the gist of these words were said to the claimant, but in the context of our findings of fact above. The claimant had gone to apologise to Mrs Uttley for leaving a meeting with her earlier on. Was this conduct related to disability or less favourable treatment because of disability? No, it was not. It was not necessarily the most sympathetic approach, nor the best way of communicating that the claimant’s absence was problematic when he was at Stage 3 of the attendance procedure, but in our judgment in all the context of the circumstances at the time, it was not conduct related to disability. The Section 15 complaint[71]Section 15 of the Equality Act 2010 relevantly provides: A person(a) (A) discriminates against a disabled person(b) (B) if—[72](a) A treats B unfavourably because of something arising in consequence of B's disability, and[73](b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.[74](2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.[75]The direction the Tribunal gave itself about this Section is as follows.[76]The “something arising in consequence of B’s disability” sometimes has to be proven by a claimant, or sometimes is accepted by an employer. Often, the “something” is a sickness absence or absence record.[77]In T-Systems v Lewis (UKEAT/0042/15/JOJ) His Honour Judge Richardson sets out a four stage test for Section 15 discrimination: 1 There must be a contravention within Section 39(2) 2 There must be unfavourable treatment 3 There must be “something arising in consequence of the disability”; and 4 The unfavourable treatment must be because of the “something”.[78]This means at stages 3 and 4 the Tribunal sometimes has to look at two different ways in which facts in the case relate to each other. The first is: does the “something” arise in consequence of disability. Stage 4 is whether the unfavourable treatment was because of the “something”.[79]“Because of” at stage 4 means that the “something arising” operated on the mind of the person making the decision (consciously or sub-consciously) to a significant (that is material) extent. See Lord Justice Underhill at paragraph 17 of IPC Media Limited v Millar UKEAT/0395/12 SM and at paragraph 25. The Tribunal, as its starting point, has to identify the individual(s) responsible for the decision or act or behaviour or failure to act which is being complained about.[80]There is also often a “Stage 5” in a Section 15 claim: the employer in the example above can say that the disciplinary action was appropriate and necessary to achieve its legitimate aim.[81]This type of “justification” defence in section 15(2) is common to many other types of discrimination, including direct discrimination because of age, and indirect discrimination. Whether the employer’s “means” are “proportionate” requires the Tribunal to determine whether they were “appropriate and necessary” (taking into account less discriminatory measures) (see Homer v Chief Constable of West Yorkshire [2012] UKSC 15 paragraphs 22 to 25). Section 15 does not derive directly from the European Equality Directive, but there is no judicial decision that the Homer approach should not be applied to Section 15 (2). Even on the bare statutory language, a structured approach is required to considering whether an employer has made out the defence.[82]Adopting the five stage approach, it is clear that the claimant’s dismissal and maintaining that dismissal on appeal in January 2018 were potentially contraventions within Section 39 and unfavourable treatment.[83]We are also satisfied that when looking at the three phases of absence we describe above, the presence in the second phase of absence for disability related reasons is sufficient to conclude that the dismissal materially influenced by something arising in consequence of disability.[84]The stage 5 question for us, both on dismissal and appeal is whether the unfavourable treatment was appropriate and reasonably necessary to achieve the respondent’s legitimate aim. Mr Finch and Mr Mulcahy both made their decisions on the basis that the claimant was disabled by reason of depression, and they had to carry out the balancing exercise required to meet the respondent’s obligations under the Equality Act. They were both sympathetic towards the claimant’s difficulties.[85]On the one hand, we have to consider the claimant’s broad submission: how can it be right or fair or lawful to dismiss somebody who has disability in these circumstances? In his favour, we recognise the series of terrible events which affected him in 2017. Equally we recognise that the respondent has an attendance improvement procedure, which has been applied carefully and consistently throughout this period. The standards were set and Mr Finch has applied an extra step, a further chance for the claimant to be able to sustain attendance from April to August. We also note that the claimant was not progressed through the stages as quickly as he might otherwise have been.[86]The respondent’s aim was: ..”sustained attendance so that the provision of corporate services can be maintained and provided with a minimum of disruption”. A matter for which there has been little time in this hearing is that building services undertook work in the homes of people, who presumably needed those works to be completed. That social housing will include people with disability and in all sorts of difficult circumstances. Weighing the respondent’s obligations to fulfil those services against the events that had impacted the claimant and his disability, and the particular impact of dismissal on an employee with disability, as Mr Finch and Mr Mulcahy accepted was considerable, we have dismissed his complaint. We consider that in all the circumstances of this case, it was appropriate and reasonably necessary to dismiss the claimant, to subject him to that unfavourable treatment, and to maintain that treatment on appeal. The only matter that troubled us about the appropriateness of the treatment in the round was the presentation of the late documents. For the reasons that were explained by Mr Finch, and indeed on appeal by Mr Mulcahy, to the effect of a lack of prejudice to him given the information provided, we do not consider this renders dismissal inappropriate and unnecessary. The complaint is dismissed. Allegation ii: taking away the claimant’s work van and allocating him a van on a day to day basis from November 2016 (Mr Reeves)[87]It will be apparent that having completed our analysis, which in summary was that there was no discriminatory conduct by Mrs Uttley, Mr Finch or Mr Mulcahy, and that allegations (iii) and (v) fail on their facts, we cannot say that this allegation against Mr Reeves about a works van from, in effect November 2016 to June 2017, when the claimant last attended work, was continuing conduct such that it was presented within the Equality Act three month time limit. The claimant did not present a complaint or even a grievance that he was not being provided with a van other than on a daily basis until it appeared in his particulars in April 2018.[88]We have made findings about some very unhelpful and poor treatment of the claimant, which was entirely unhelpful to him given his condition at the time. It made his life more difficult and it made matters worse. We have dismissed those complaints on the facts or because we do not consider that disability played any part in the minds of those involved at the time. In order to decide this complaint, we must decide it is just and equitable to extend time to do so. We have rejected Mr Reeves’ evidence that he played no part in van allocation, as he suggested, as we did in relation to his evidence about the claimant needing to evidence his mother’s cancer. We know from our findings and the documents concerning college enrolment issue that Mr Reeves was involved, for example, in the enrolment of people on courses, which you might think at that level of management he might not be, but he was. We also know that he had to sign off on special leave. We accepted the claimant’s evidence that frankly, he ran this department and anything of importance went to him, and we do consider that he made the decision concerning the van, albeit an administrator dealt with the day to day administration. The effect of his decision was that the claimant was not to be given a van until he attended work each day. We appreciate there might be three good reasons for his decision: he is not sure the claimant is coming in, which is a fair reason; the second possible reason, albeit unfair, was that the claimant’s had a grievance against the department in relation to pay which was subsequently upheld, and should have been upheld from the outset; and thirdly the claimant’s disability, which had demonstrated itself in an outburst in November.[89]This case was not put to Mr Reeves as fairly or straightforwardly as it might have been, had the claimant had a representative present. We do not consider we can say, on the balance of probabilities, that disability played no part in Mr Reeves’ van decision. And equally we cannot find that it was a material influence, or conduct related to disability. For these reasons we do not extend time to decide it. It is not just to do so when our deliberations have been extended and we have kept you waiting as a result.[90]For these reasons all the complaints are dismissed. The van complaint for limitation, the unfair dismissal for limitation, and the other complaints on merit.