Mr Kevin Harris v HCL Great Britan Ltd and others: 2201746/2019 and 3201242/2019
EMPLOYMENT TRIBUNALS
Case No 2201746/2019, 3201242/2019
Between
Mr Kevin HarrisClaimantHCL Great Britan Ltd and othersRespondent
Before
Employment Judge John CrosfillIn person for claimant(1) Ms M Stanley (instructed by Counsel) for respondentDate 13 March 2020
JUDGMENT
[1]The name of the Second Respondent is amended to Roc Search Limited[2]All claims against the Second Respondent have no reasonable prospects of success and are struck out.[3]Any claim brought against the First Respondent for unlawful deduction from wages under Part II of the Employment Rights Act 1996 OR as a breach of contract under the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 has no reasonable prospect of success and is struck out.
REASONS
[1]The claims arise from a period of work done by the Claimant on a project by the First Respondent HCL Great Britain Limited for Credit Suisse. The Claimant has brought 2 claims one issued in the Central London Employment Tribunal against the Second and Third Respondent and one in East London which was accepted against the First and Second Respondents.[2]The hearing before me had was listed to consider joinder of the proceedings, who the correct respondent was in respect of any claims and whether all or some of the Claims had little reasonable prospect of success. The file in the Central London case, Case 2201746/2019 was transferred to East London in advance of the hearing by the Central London tribunal.[3]As a first stage I sought to identify the claims and the parties. I was provided with a contract between Green Lantern Accountancy Limited ‘R3’ and Roc Search Limited ‘R2’ dated 29 October 2018. That contract is typical example of type of contract used in the recruitment industry to supply contractors to third parties. In such arrangements the ‘Client’ requires some service to be provided and contracts with the recruitment company for the provision of that service, in turn the recruitment company sources and individual often referred to as ‘the consultant’ to provide those services. However, it has become increasingly common for recruitment companies to require individuals looking for work to offer their services through another company. Such companies are usually referred to as umbrella companies. An umbrella company acts as the employer of the Consultant. It enters a contract with the recruitment company and receives a fee in respect of the Consultants work. After deducting an administrative charge it passes on that fee to the Consultant less deductions of tax and national insurance. At various points that arrangement has been beneficial as it might allow the Consultant to claim for travel and subsistence costs free of tax.[4]Having had regard to the contractual document I was provided with I expressed a provisional view that the arrangement that the Claimant had was such a typical arrangement as I described above. The Claimant confirmed that he was paid by Green Lantern Accountancy Ltd. He complained that they had taken no part in the proceedings and thought they were likely to disappear. He suggested that he had signed some document of some description when he had attended the premises of Roc Search Ltd. At the time of my decision I had not seen any such document. Since my decision the Claimant has forward a document to be signed by him. That document contains details of his assignment. It is very clear from that document that the contract for provision of the Claimant’s services was to be made by the ‘Service Provider’ in this case Green Lantern Accountancy Ltd. The Claimant has also provided a copy of correspondence relating to the provision of a NEST pension. The provider of the Pension is identified as Green Lantern Accountancy Ltd. Whilst I had already made a decision I have taken the Claimant’s provision of these documents as amounting to an application for reconsideration. Far from undermining the decision that I made these documents reinforce my findings of fact.[5]I find that as a matter of fact the Claimant’s engagement with the First Respondent was, as is entirely typical, through the following chain of contracts. The Claimant was employed by Green Lantern Accountancy Ltd. That company paid him and organised his pension for him. I have seen the contract between Green Lantern Can see Ltd. It is clear from that contract that Green Lantern Accountancy Ltd undertook to supply the Claimant services to Roc Search Ltd in order that he could be supplied in turn to HCL Great Britain Ltd. The proper legal test – Rule 37[6]The power to strike out a claim at a preliminary stage before a final hearing is found in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (hereafter “the employment tribunal rules”) and in particular in rule 37 the material parts of which read as follows: “(1) At any stage of the proceedings, either on its own initiative or on the application of the party, a Tribunal may strike out all or part of the claim or response on any of the following grounds – that it is scandalous or vexatious or has no reasonable prospect of success……”[7]The power to strike out a claim under Rule 37(1)(a) on the ground that it has no reasonable prospect of success should only be exercised in rare circumstances Tayside Public Transport Co Ltd (t/a Travel Dundee) v Reilly [2012] IRLR 755, at para 30. In discrimination claims where findings of fact can depend upon whether or not it is appropriate to draw inferences of discrimination from primary facts particular care needs to be taken before striking out a claim Anyanwu v South Bank Students' Union [2001] IRLR 305, HL. The same cautious approach should be applied in a claim brought under S47B ERA 1996 North Glamorgan NHS Trust v Ezsias [2007] IRLR 603.[8]It will generally not be appropriate to strike out a claim where the central facts necessary to prove the case are in dispute. It is not the function of a tribunal such an application to conduct a mini trial. The proper approach is to take the Claimant’s case at its highest as it appears from his (or her) ET1 unless there are exceptional circumstances North Glamorgan NHS Trust v Ezsias. Such exceptional circumstances could include the fact that the Claimant's case is contradicted by undisputed contemporaneous documents or some other means of demonstrating that 'it is instantly demonstrable that the central facts in the claim are untrue' Tayside.[9]In Balls v Downham Market High School [2011] IRLR 217 Lady Smith reminded tribunals that the test is not whether the claim is likely to fail but whether there are no reasonable prospects of success. That however is not the same thing as there being no prospects of success at all - see North Glamorgan NHS Trust v Ezsias at para 25 citing Ballamoody v Central Nursing Council [2002] IRLR 288. Another way of putting the test is that the prospects are real as opposed to fanciful see North Glamorgan NHS Trust v Ezsias para 26.[10]QDOS Consulting Ltd and others v Swanson UKEAT/0495/11/RN provides authority for the proposition that orders under rule 37 should be made only in the most obvious and plain cases and not in cases where there is a need for prolonged and extensive study of documents and witness statements. Those propositions may also be found in the authorities above. HHJ Serota QC prior to stating those propositions drew attention to the similar position under the Civil Procedure Rules. He said (at para 45): [45] It may be instructive to compare the position of striking out under the Employment Tribunal Rules with striking out as provided for in the Civil Procedure Rules. I note that there is a close affinity between striking out under CPR 34.2(a) [sic –there is a typo in the report], which enables the court to strike out the whole or part of a statement of case that discloses no reasonable grounds for bringing or defending a claim overlaps with Pt 24, on summary Judgment. Rule 24(2) entitles a court to give summary Judgment against a Claimant or Defendant on a claim or issue where there is no real prospect of succeeding on the claim or issue, or successfully defending the issue. The notes to CPR 24 in the White Book make this clear: “In order to defeat the application for summary Judgment, it is sufficient for the Respondent to show some prospect; ie some chance of success. That prospect must be real; ie the court will disregard prospects that are false, fanciful or imaginary. The inclusion of the word 'real' means the Respondent has to have a case which is better than merely arguable. The Respondent is not required to show their case will probably succeed at trial; a case may be held to have a real prospect of success even if it is improbable. However, in such a case the court is likely to make a conditional order.”[11]Care needs to be taken when assessing whether a case has no reasonable prospects of success to avoid focussing only on individual factual disputes. A case may have some reasonable prospects when regard is had to the overall picture and all allegations taken together see Qureshi v Victoria University of Manchester [2001] ICR 863[12]The statements of principle derived from the cases referred to above do not in any way fetter the discretion of a tribunal to strike out a case where it is appropriate to do so Jaffrey v Department of the Environment, Transport and the Regions [2002] IRLR 688 at para 41.[13]In Chandhok & Anor v Tirkey UKEAT/0190/14/KN Mr Justice Langstaff made the following comments: “20. This stops short of a blanket ban on strike-out applications succeeding in discrimination claims. There may still be occasions when a claim can properly be struck out – where, for instance, there is a time bar to jurisdiction, and no evidence is advanced that it would be just and equitable to extend time; or where, on the case as pleaded, there is really no more than an assertion of a difference of treatment and a difference of protected characteristic which (per Mummery LJ at paragraph 56 of his judgment in Madarassy v Nomura [2007] ICR 867): "…only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal "could conclude" that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination." Or claims may have been brought so repetitively concerning the same essential circumstances that a further claim (or response) is an abuse. There may well be other examples, too: but the general approach remains that the exercise of a discretion to strike-out a claim should be sparing and cautious. Nor is this general position affected by hearing some evidence, as is often the case when deciding a preliminary issue, unless a Tribunal can be confident that no further evidence advanced at a later hearing, which is within the scope of the issues raised by the pleadings, would affect the decision.”[14]ED & F Man Liquid Products Ltd v Patel and another [2003] EWCA Civ 472 concerned an application to set aside a default judgment. The Defendant contended that the test was the same as that for summary judgment made under Part 24 of the Civil Procedure Rules. The test to be applied under that rule is whether a claim or defence has “no real prospect of succeeding”. There is no material distinction between this test and the test under Rule 37 of the ET procedure rules. The Court of Appeal explain what is meant by the requirement to take a case at its highest. Potter LJ giving the judgment of the Court said, at para 10 (with emphasis added): “…..where there are significant differences between the parties so far as factual issues are concerned, the court is in no position to conduct a mini-trial: see per Lord Woolf MR in Swain v Hillman [2001] 1 All ER 91 at 95 in relation to CPR 24. However, that does not mean that the court has to accept without analysis everything said by a party in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporary documents. If so, issues which are dependent upon those factual assertions may be susceptible of disposal at an early stage so as to save the cost and delay of trying an issue the outcome of which is inevitable..”[15]Even where the test of no reasonable prospects of success is met there is a separate question to be asked as to whether the Tribunal should exercise its discretion to strike out the claim Hasan v Tesco Stores Limited UKEAT/0098/16. It will not be appropriate to strike out a claim that might have reasonable prospects of success if permissibly amended.
Discussion and conclusions
[16]I then turned to explore the claims brought against each of the Respondents. Ideal firstly with the claims brought against Roc Search Ltd. The Claims had been clarified at an earlier Case Management Hearing conducted on 23 September 2019 by Employment Judge Burgher he drew up a list of issues. There was no application to amend the claim made before me nor was it suggested that the list of issues was inaccurate.[17]The Claimant had indicated on his ET1 that he was bringing claims for sums of money and consequential losses. The Claimant explained that there had been delays caused by First Respondent failing to make payment following the termination of his assignment. He also complained that he had not been given the correct contractual notice.[18]A claim for unlawful deduction from wages or a claim for breach of contract both require a Claimant to show that there is a contract in place between them and the person who they say has breached that contract and owes them money and/or damages. In the present case it is quite clear to me that there is no contract of any description between the Claimant and Roc Search Ltd. The contract under which the Claimant was paid was between him and Green Lantern Accountancy Ltd. It is that company and no other which is liable to the Claimant for any sums contractually due to him in respect of his work undertaken for the First Respondent. The contract between Roc Search Ltd and Green Lantern Accountancy Ltd expressly excludes the right of any third party to enforce the terms of the agreement. I conclude that any claim against Roc Search Ltd for pay or notice pay have no reasonable prospect of success.[19]I considered whether I should exercise my discretion to strike out the claims. I consider that it is clearly right to do so. The money claims simply cannot succeed against this respondent. Ms Stanley urged me to retain Roc Search Limited as a respondent for the purposes of obtaining access to witnesses and disclosure. As Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 provides other avenues for obtaining witness orders and third party disclosures I reject the suggestion that a party should be put to the cost of attending a multi-day trial simply because another party seeks disclosure or wants to call witnesses.[20]I explored the discrimination claims. The Claimant has brought claims of direct race discrimination and alleges a failure to make reasonable adjustments for a disability. Notwithstanding the absence of any contractual relationship the Claimant may rely upon Section 41 or Section 109 and/or Section 110 of the Equality Act 2010 to fix others with liability for their unlawful acts.[21]Employment Judge Burgher had been unable to ascertain who each of the Claimant’s claims was aimed at. I asked the Claimant how he put his direct discrimination claims. He told me that his complaints were about his treatment by a Mr Torabi and Mr Ragu and a decision to require him to do a ‘credance’ check.[22]He told me that both Mr Torabi and Mr Ragu were employed by HCL Great Britain Limited. As such that company would be liable for their actions. Roc Search Limited would only be liable if it could be shown that those two individuals were acting as its agents. Given the function of Roc Search Limited as a recruitment agency it is quite impossible to see how such a claim could be maintained. The two individuals were not delegated to do a task that Roc Search Limited would otherwise carry out. As such I find that allegations 2.1 to 2.7 have no reasonable prospects of success.[23]After some hesitation he also said that it was HCL Limited that had asked him to do a credence check. That is consistent with HCL’s pleaded case. As such if there was any discrimination it was by HCL and not Roc Search Limited. Again, there can be no sensible claim that HCL or its staff were acting as agents for these purposes and allegation 2.8 has no reasonable prospects of success.[24]The Claimant’s reasonable adjustment claim turned on his suggestion that there was a practice of requiring him to work in the Offices of HCL/Credit Suisse rather than working at home. I asked who had directed where he worked and the Claimant told me it was Mr Ragu who had insisted that he worked in the office. It was not alleged that Roc Search Limited imposed any requirements about where the Claimant worked. As such it is impossible for any claim against Roc Searcy to succeed in their own right. It is also impossible how it could be said that any individual at HCL imposing a practice on the Claimant was acting as an agent of Roc Search Limited. The claims have no reasonable prospects of success.[25]The Claimant raised a further allegation which had not been recorded in the list of issues which was a suggestion that the failure to pay him notice pay and wages was itself an act of direct discrimination. I asked the Claimant whether he was alleging that the failure by Roc Search Ltd to pay Green Lantern Accountancy Ltd was because of his race. The Claimant suggested that HCL Great Britain Limited might have acted out of racial motives but he did not suggest that Roc Search Ltd did. As such, even had it been pleaded, there could be no claim under the Equality Act 2010 in respect of any delay in making payment against Roc Search Ltd.[26]Finally I deal with the question of whether the termination of the Claimant assignment was a discriminatory act for which Roc Search Ltd might be liable. This question was not found in the list of issues nor was it particularly clear in the claim form but given that I was invited to strike out claims I considered it fair to ask whether if it was alleged it would have reasonable prospects of success. The decision to terminate the assignment on the case of each party was taken by HCL Great Britain Ltd. Nobody says that the decision was taken by Roc Search Ltd. Roc Search Ltd cannot be said to have acted as the agent of HCL Great Britain Ltd. As such any such claim would have no reasonable prospect success.[27]Recognising that I have a discretion whether or not to strike out a claim once I have found that it has no reasonable prospect success I asked myself whether it would be just and equitable to do so in this case. The proper Respondent for the Claimant’s claims under the equality act is HCL Great Britain Ltd. It is that company he blames for his treatment alleging that its Asian workforce treated him badly and ultimately took the decision to remove him from the contract. That claim, subject to showing it has more than no reasonable prospect success, can proceed. Releasing Roc Search Ltd from these proceedings does not affect any other party’s ability to bring order defend them. I have considered whether an amendment could cure the Claimant’s case but he has not pointed to any act whether of Roc Search Limited in its own capacity or any other person acting as an employee or agent of Roc Search that could fix it with any liability. I consider that all of the claims should be stuck out as against Roc Search Limited they have no reasonable prospects of success.[28]Ms Stanley accepted that in respect of HCL Great Britain Limited the position was less clear. She accepted that it was arguable that the Claimant was a contract worker for the purposes of Section 41 of the Equality Act and that if he was HCL Great Britain Limited might be liable for the discrimination claims. The sole matter that she asked me to consider was whether the money claims could be pursued against HCL Great Britain Limited.[29]For much the same reasons as I have set out in respect of the same claims against Roc Search Limited I see no route whether the Claimant could say that he was an employee or worker for HCL Great Britain Limited. He has no contract with that company at all. As such if the claims were brought as claims for breach of contract or for unlawful deductions from wages there could be no liability. The claims, put like that, have no reasonable prospects of success and I see no reason why they should not be struck out.[30]The Claimant has been clear that he considers that HCL withheld monies deliberately. If that was because of race then a claim might be advanced against HCL for any loss and/or injury to feelings. It is far from clear that that is the way the claim has ben brought but nothing in this judgment is intended to deal with a claim on that basis.
Discussion and conclusions
[1]The issue to be decided is whether the Claimant was a disabled person when working for the First Respondent, and therefore entitled to bring a claim for disability discrimination by way of failing to make reasonable adjustments. He was engaged to work for HCL between 30 October 2018 and 11 January 2019.[2]I have heard evidence from two witnesses, namely Mr S Perumal on behalf of the Respondent and Mr Harris, the Claimant. In addition, I have been referred to medical evidence at pages 76 to 82 of the bundle prepared by the Respondent for this hearing. This is the evidence that the Claimant sent through to the Tribunal in response to the Order of Employment Judge Burgher on 23 September 2019. That required the Claimant [quote from [58]].[3]The Claimant says he has provided additional medical evidence at the time that he lodged his claim. However, there is no such evidence on the Tribunal file and no good reason why this evidence would not have been provided at the same time he sent the other evidence he provided by email on 13 November 2019.[4]The definition of a disabled person in Section 6 of the Equality Act 2010 is as follows: (1) A person (P) has a disability ifa. 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]Schedule 1 of the Equality Act, headed “Disability Supplementary Provision” contained the following explanation of “long-term” 2(1) The effect of an impairment is long-term if –a. It has lasted for at least 12 monthsb. It is likely to last for at least 12 months …[6]Substantial means more than a trivial adverse effect. Long-term means an adverse effect which has lasted for 12 months or is likely to last for 12 months. “Is likely to last for 12 months” means that the adverse effect could well last for 12 months. Insofar as is relevant to the particular issue to be determined, the Tribunal must have regard to the Guidance on Matters to be taken into account in determining questions relating to the definition of disability. No sections in that Guidance were referred to by either party.[7]The focus of the Tribunal’s enquiry when considering whether an impairment is long-term is the period of the alleged discrimination. Here the relevant period is the period between 30 October 2018 and 11 January 2019. During that period, without the benefit of hindsight, the Tribunal must ask whether the impairment has lasted for at least 12 months or is likely to last for at least 12 months.[8]The burden is on the Claimant to show on the balance of probabilities on the evidence before the tribunal that his symptoms were sufficient to satisfy this definition during the period when his alleging disability discrimination. It is not for the Tribunal to contact the Claimant’s GP or any other investigations into the Claimant’s health beyond the records put in evidence by the parties.[9]The conditions which the Claimant says amount to a disability, either individually or in combination are as follows:(1) Bursitis in his hips(2) Arthritis in his feet[10]Both these conditions were referred to at the Preliminary Hearing before Employment Judge Burgher on 23 September 2019. Only hip pain had been referred to in the attachment to the ET1. This was a hearing attended by the Claimant where the issues were carefully discussed, identified and recorded in a full record of the Discussion. No reference was made then or subsequently to two further conditions that the Claimant now adds in his witness statement. These are: (3) Stress, Anxiety, Depression and Related Stomach Ulcer (4) Deformed toes affecting walking and balance[11]Ms Stanley, counsel for the Respondent, objected to these two conditions being relied upon in circumstances where they had not been pleaded in the ET1 or recorded as raised in the discussion before Employment Judge Burgher. I allowed the Claimant permission to argue that he was disabled by reason of these conditions, given that Judge Crosfill had not specifically limited the impairments that the Claimant could rely upon when framing his order requiring a disability impact statement. However, I indicated that reliance now on matters that could and should have been referred to at an earlier point, and where the omission was not sufficiently explained, may well impact on the Claimant’s credibility and weight to which his evidence could be given on these matters.[12]The relevant period for the Tribunal to consider is the period from 30 October 2018 to 11 January 2019. There is no medical record before the Tribunal of any attendance at his GP or other healthcare provider within that period. The closest medical records in time are a discharge letter from the musculoskeletal clinic, dated March 2018, over six months before his work for HCL started; and a GP entry on 11 April 2019, three months after his work ended.[13]In the absence of such medical evidence, persuasive evidence as to the extent of the Claimant’s restrictions whilst in the office is provided by Mr Perumal. He was questioned by the Claimant but the Claimant chose not to challenge much of his evidence. Mr Perumal was the Claimant’s line manager and typically sat next to the Claimant on a daily basis. He gave evidence as to what he observed about the Claimant’s mobility and ability to engage in normal day to day activities. He also regularly took lunch with the Claimant and other members of the small team. They would often discuss issues other than work. If the Claimant was in particular pain as a result of an ongoing condition, on the balance of probabilities he is likely to have mentioned it to Mr Perumal.[14]I accept the evidence of Mr Perumal that the Claimant did not mention he was experiencing pain apart from one occasion on 14 December 2018. On this date, he texted Mr Perumal referring to hip pain for which his GP had referred him for an x-ray. As a result, he asked permission to work from home. Mr Perumal told him to take the time off work to recover, because he did not want him to exacerbate his symptoms. The Claimant was off work for about 3-4 days and when he returned to work did not mention any further problems with his hip. He did not request any changes to his duties or take any time off work.[15]It is likely that the Claimant did visit his GP on this occasion in December 2018, notwithstanding the absence of a GP entry in the material provided to the Tribunal. This is because Mr Perumal recalls him mentioning in his text message that he had already done so. As said to Mr Perumal, it is likely that the GP did refer the Claimant for an x-ray, and this is the x-ray referred to in the entry in the medical records on 1 July 2019. I reject the suggestion of Ms Stanley that the Claimant was incorrect or untruthful when he said this to Mr Perumal. I accept the evidence of the Claimant that his GP did not have the facilities to carry out x-rays and that therefore the x-ray must have been carried out as a result of a previous referral made on a previous visit. The x-ray cannot have been taken on 1 July 2019 analysed and reported on by a suitably qualified expert so that the outcome featured in the GP note of the same short consultation.[16]As a result, there is a missing GP record which the Claimant has not provided in support of his claim. There may well also be other missing medical records. There are no hospital records of the x-ray or the report analysing the x-ray. The records provided indicate that there was a referral to physiotherapy for hip pain made to the musculoskeletal clinic on 2 July 2019, but that has not been provided to the Tribunal. Nor are there any subsequent notes from that clinic. In addition, the earlier entry on 11 April 2019 indicated that the GP was referring the Claimant to a podiatrist but that referral letter has not been produced, nor any subsequent records from the podiatrist.[17]Where, as here, there are missing records, and it was possible for the Claimant to have provided the Tribunal with a full set of records, any doubt as a result of the missing details must be resolved in favour of the Respondent. This is particularly the case where a very clear direction was given by Employment Judge Burgher as to the extent of the disclosure required to be made by the Claimant of his medical records. As I said at the start of the judgment, the burden is on the Claimant to prove that his symptoms met the required threshold.[18]During the course of the evidence, the Claimant repeatedly suggested that he would provide the Tribunal with his consent to access the medical records; or provide further medical records in due course. I stressed that the issue of disability had to be determined conclusively at this hearing, based on the evidence provided by both parties and in front of the Tribunal.[19]From the witness evidence and the medical records that have been provided, I reach the following conclusions:(1) The result of the x-ray carried out in December 2018 was negative, given that the acronym NAD is recorded against X-ray in the GP entry. I take it that this stands for No Abnormality Detected;(2) The problem was only in relation to the left hip, as recorded by the GP in July 2019 and not in relation to the right hip. If both hips were affected then this would have been stated;(3) The left hip problem was not sufficiently significant to require the Claimant to consult his GP again until 1 July 2019, long after his work for HCL ended;(4) That even at that point, on 1 July 2019, it was the second matter raised with his GP;(5) It was not a matter that the GP felt required any pain relieving medication to be prescribed. There is no evidence from the Claimant he had ever taken painkillers for hip pain at any point;(6) As the Claimant himself confirmed in his evidence, the hip problem had only started around the time that the Claimant was working with HCL. There is no evidence that the Claimant had experienced symptoms in his left hip before this. Thus the reference to longstanding left hip pain is a reflection of the fact that it had first started seven months earlier;(7) To the extent that there was any hip pain at all, it did not restrict the duties that the Claimant in fact carried out apart from the four days of sickness absence. The Claimant did not refer to any hip pain apart from in relation to that short period of absence.(8) Therefore, it did not have a substantial adverse effect on normal day to day activities. Further it was not long-term in that, on the evidence before me, having only started around the time that the Claimant’s work started with HCL, on balance it was not likely to last more than 12 months.(9) The Claimant had experienced discomfort in his feet in the past, whether caused by arthritis or deformed toes. This is shown by medical records in 2017 and March 2018. However, he had been discharged from the medical care of Alex Ross, Podiatrist in March 2018. By that point he had made good progress with exercises.(10) There is no evidence that the Claimant required any medication or other orthotic assistance for foot pain whilst working at HCL. The Tribunal infers that any discomfort in the Claimant’s feet was at a trivial level during the two and a half months of his work for HCL.(11) In that time he had been able to manage a commute to work which was up to two hours long during rush hour, involving significant standing. He had been able to walk a mile to attend training, and to walk around the building in which he was based to speak to colleagues, attend meetings, take breaks and visit the cafeteria at lunchtime. He was able to stand for up to the 30 minutes required given the maximum length of team meetings;(12) Although he had on occasions chosen to work from home he had never asked for permission to do so, or explained his decision to do so, based on the level of hip and foot pain he was experiencing. The Tribunal infers that he would have raised this if he was in significant pain;(13) Based on the totality of the evidence, the likelihood is that the Claimant did not have a substantial physical impairment during his employment apart from the four days when he was absent on sick leave with hip pain.(14) Further, in relation to the alleged symptoms of stress, anxiety and depression, there is no supporting medical evidence whatsoever. The ulcer was the result of the stress and so occurred after the onset of the stress condition. On the Claimant’s own evidence, these matters only became a substantial problem after 2 January 2019 as a result of what he describes as bullying from HCL staff. There is no evidence that he sought medical treatment for this problem during the next week or so – or at all. Within 10 days or so his employment had ended. As a result, even if this alleged mental impairment had a substantial effect on normal day to day activities (on which the Tribunal is not persuaded), then it was not a longterm effect. It had not lasted 12 months, nor was it likely to do so, in the sense that it could well do so. The same is true of the ulcer. Both it and the stress appear on the evidence to be a short-term reaction to particular pressure at work.[20]For these reasons, I conclude that the Claimant’s symptoms do not satisfy the definition of disability. As a result, his disability discrimination claim must be dismissed.