Employment Judge CoddMr Deane (instructed by Counsel) for claimantMr Stenson (instructed by Counsel) for respondentDate 7 May 2025
JUDGMENT
[1]At the relevant times the claimant was not a disabled person as defined by section 6 Equality Act 2010 because of a depression and anxiety disorder.[2]The claim of discrimination because of something arising in consequence of disability and harassment related to disability are therefore dismissed.
REASONS
[1]These reasons relate to a hearing conducted on the 7th of May 2025. Oral reasons were provided at that hearing and no party requested written reasons. An email request for written reasons was sent to the Tribunal on the 8th of May 2025. I was notified of the request on the 2nd of June 2025. Consequently there has been a delay in producing these reasons.
The claim
[2]The claimant was employed as a night manager for the respondent. He was employed between 6th of April 2001 until his dismissal on the 12th of December 2023. The claimant subsequently appealed this decision which was refused on the 9th of February 2024. The claimant engaged in ACAS conciliation between 27th October 2023 and 07th of February 2024. His claim is dated 26th of February 2024.[3]The claimant brings claims for:a. Unfair dismissal;b. Discrimination arising from disability (S15 Equality Act 2010);c. Harassment related to disability (S26 Equality Act 2010);d. Victimisation (S27 Equality Act 2010).
Background
[4]There was a preliminary case management hearing on the 14th of October 2024. That hearing listed a final hearing. It also listed this hearing to determine the issue of disability. Subsequently the respondent has applied for a deposit order.[5]The claimant argues that he suffered various detriments related to his disability (depression and anxiety disorder). On 14th September 2022 he suffered a panic attack and collapsed following a refusal of his request to leave early. He was off work as a consequence until late November 2022.[6]In June 2023 he was accused of sexual harassment and was again absent from work for a number of weeks.[7]Finally in November he was suspended under investigation before being dismissed in December 2023. These incidents are said to have exacerbated his condition. He has at times threatened self harm and suicide as a consequence.[8]It is not in dispute that the claimant has had periods of sick leave associated with stress, anxiety and depression. He has received longstanding prescriptions for these conditions, albeit with some debate over their frequency. It is not disputed that the three key timeline events caused an acute stress reaction in the claimant. However, it is argued that this does not constitute evidence of disability.
The hearing
[9]I heard extensive evidence from the claimant in the hearing. English is his second language and most questions had to be re-put to him. At times I intervened to break down the concepts that he was being asked to comment on. His presentation throughout was distressed and at times emotional. His affect was slow and flat. He admitted to having ‘double dosed’ his medication prior to the hearing. No party sought to persuade me that he was not fit to give evidence and I was satisfied that he was fit to continue. I gave him the opportunity to ask for an adjournment if he felt unfit. He asked to continue. I allowed him flexibility to have breaks if needed. He did not exercise this, save when I enforced this.[10]I also heard detailed and helpful submissions from both advocates. They spoke to their skeleton arguments, which were comprehensive and robust. The evidence lasted the morning and I then retired to consider my decision. It was agreed that I would not deal with the application for a deposit order today on the discrimination claims, and that would be considered in the future, subject to my determination on disability. The only deposit order application to form part of this judgment is in relation to victimisation.
The issues
[11]The question for the Tribunal to decide at this preliminary hearing are:a. Was the claimant a disabled person as defined in section 6 and Schedule 1 Equality Act 2010 at all of the relevant times?b. Should a deposit order be made on the victimization claims[12]Whether there is an impairment which has a substantial adverse effect on normal day-to-day activities, must be assessed at the date of the alleged discriminatory act. The same period is to be used when assessing whether the impairment has a long term effect. The relevant time here spans various alleged acts between August 2022 and February 2024.[13]The alleged impairment is depression and anxiety disorder. I have at all times treated these as a single condition. No party has suggested that they are distinguishable from each other. The manifestation is the same in the way the claimant has pleaded his case.
Legal Principles
[14]The definition of disability has a number of different elements for a Tribunal to consider when arriving at its decision on whether a person has a disability.[15]The starting point is Section 6 of the Equality Act 2010, which says that a person has a disability if:(a) he has a physical or mental impairment, and(b) the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to- day activities.[16]There is a general interpretation section in the Equality Act and at section 212(1) it says that ‘substantial’ means ‘more than minor or trivial’.[17]Long-term impairment also has a particular meaning. A long-term impairment is one that has lasted 12 months or is likely to last 12 months or is likely to recur.[18]Whether an impairment is long-term must be considered as at the date of the alleged discrimination. (Long-term impairment is not to be considered as at the date of the Tribunal hearing (McDougall v Richmond Adult Community College [2008] ICR 431 CA).[19]Guidance has been issued by the government under section 6(5) of the Equality Act concerning the definition of disability in the Act. Any tribunal which is determining for any purpose of the Equality Act whether a person is a disabled person has to take into account any aspect of this Guidance which appears to it to be relevant.[20]In deciding whether a claimant is disabled within the meaning of the Act, it is necessary to consider what ‘substantial adverse effect’ means.[21]This is considered in Part B of the Guidance. Paragraph B2 says that the time taken by a person with an impairment to carry out normal day-to-day activity should be considered when assessing whether the effect of the impairment is substantial, it should be compared with the time it might take a person who did not have the impairment to complete the activity.[22]Paragraph B3 states that another factor to be considered when assessing whether the fact of an impairment is substantial is the way in which the person with that impairment carries out normal day-to-day activities.[23]Paragraph B4 gives guidance that an impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation. However, it is important to consider whether its effects on more than one activity, when taken together, could result in an overall substantial adverse effect.[24]Paragraph B6 says that a person may have more than one impairment, any one of which alone would not have a substantial effect. In such a case, account should be taken of whether the impairments taken together have a substantial effect overall on the person’s ability to carry out normal day-to-day activities.[25]The cumulative effect of more than one impairment should also be taken into account when determining whether the effect is long-term.[26]Paragraph B7 says that account should be taken of how far a person can reasonably be expected to modify his behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities.[27]The Tribunal must consider the question of impairment as if the person is not taking medication or in the absence of measures controlling it.[28]Paragraph D2 outlines that the Equality Act does not define what is to be regarded as ‘normal day-to-day activity’. Paragraph D3 says that in general, dayto-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 work-related activities, and study and education-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.[29]In relation to deposit orders, it is not the role of the Tribunal to carry out a mini trial. It is an assessment of the claim before it. Rule 40 deals with applications of a deposit order. It is a 2 stage process, first I must be satisfied on balance that the claim has little reasonable prospect of success. Secondly I must then assess the means to pay for such an order. The burden is on the party seeking the order. Findings and Analysis[30]I have considered the arguments and case law presented to me by both advocates, even where this is not expressly referred to. I have considered the hearing bundle and had regard to the evidence.[31]I shall first assess the claimant’s evidence. He has provided an impact statement and he gave oral evidence before me. He was clearly distressed. He was not anticipating giving evidence.[32]He was a challenging witness. I give him due allowance for his language difficulties. At times he did not understand a question and it had to be re-posed. However, much of his evidence was side tracked by him answering his own narrative, rather than responding to the question asked. This made for a lengthy and futile process. Even the most basic of scene setting questions was treated by him as, an opportunity to expand a narrative into his own reflections on his treatment by the respondent. The nuance of the process was lost on him and he responded with paranoid urgency to the most basic issues.[33]What was clear from his evidence, was that he was unable to be reflective in how issues were manifesting at the relevant times that he was working. For example, when discussing issues about his panic attack in September 2022, he conflated these with the allegations of sexual harassment, occurring the following year in June 2023.[34]Conflation, is the most accurate way to describe how he responded to the evidence. As a consequence, I find I am unable to rely with any positive weight on his oral testimony, save where I have distinguished this below. Due to the conflation of his oral testimony and my assessment of his responses, I observe a similar pollution of the evidence within his written testimony. Whilst I can accept how his symptoms may manifest, I cannot place reliance on how these developed or when they occurred.[35]I therefore place the balance of my analysis on the written and documentary material, Which I have been provided.[36]The claimant told me that he had taken Sertraline consistently since September 2022. He was clear that he got consistent prescriptions from his GP even where these are not detailed in his notes.[37]Much has been made of the prescription of sertraline, and whether there are gaps in the prescription. Viewing matters holistically, there is some evidence that the amount of medication given to the claimant, in 2022 and early 2023, broadly coincides with him taking the medication consistently. However, this is in conflict with the notes which show a gap in the medication being prescribed and repeated references to the claimant being re-started on Sertraline in the early part of 2023. There have also been times where the claimant has taken matters into his own hands to stop the medication. The result is that the medical evidence alone is inconclusive. The claimant is an unreliable witness. Even if the prescriptions have overlapped with existing medication, I am not at all confident that the medication has been taken consistently by the claimant. I find on balance there have been periods in Early 2023 where the sertraline had to be re-started.[38]The use of medication for mental health conditions alone is not determinative of a disability. Many individuals are prescribed medication for many years despite stability in their presentation. A reference in a GP record to depression or anxiety disorder, is in and of itself not diagnostic, without wider specialist assessment. A short GP consultation is rarely if ever sufficient to be determinative of such factors. A more holistic evaluation for the evidence is required. Sadly there is little evidence of the effect on the claimant of his day to day activities (either with or without the medication) during this time.[39]There is evidence that the claimant had a panic attack on the 14th of September 2022. That much is unequivocal from the evidence. At the time he had lost his grandmother. He argues he was suffering with stress at work due to the training requirements. It is suggested by Mr Deane I can therefore find from August 2022 that there is evidence of a substantial long term adverse effect. I reject that suggestion.[40]The 14th of September 2022 was the onset of the claimants issues. Prior to this his notes record that he had not suffered with his mental health previously. A bereavement which he suffered in approximately July 2022, whilst no doubt devastating, is not sufficient evidence of the conditions pleaded.[41]Following this incident the claimant was signed off sick from work. He was undergoing cardiology tests for chest pains. It is clear with hindsight that he was suffering from a panic attack, however, it was not until later in 2023 that any cardiac issues were ruled out. When they were this coincided with an improvement in the claimant’s health. No doubt his mind was put at ease.[42]Whilst it is clear that he had a substantial effect on his day to day activities between September and November 2022, in that he could not work, this situation improved.[43]This is supported by the notes on the 28th of November 2022, where tells his GP his chest pains are getting better. He was “feeling anxious and low mood, sertraline helps – feels better”. His anxiety score has reduced from 14 to 4 at the point of discharge.[44]Once he was over the acute reaction the claimant returned to work. He remained on medication. However, I find that the assessment in February 2023 to re-start his sertraline was because at this point it had expired from any repeat prescription. The notes are clear that he stopped the medication as he thought it was causing his symptoms.[45]This I find shows that his condition was improving and is not indicative of a long term effect. I find at this point the condition could not be described as long term. The evidence I have about the adverse impact on his daily functioning is poor and conflated. I do not find the test made out at this point.[46]The symptoms he then suffered from February onwards again appear related to his chest pain. The 18th of February 2023 GP records say that symptoms were “most likely anxiety related”. This in my finding was not diagnostic at this point. Medication was speculative and precautionary at best. By the 30th of March 2023 the consultation shows that matters were stabalised with no current symptoms. From this point I find there was a routine prescription of medication, but that this cannot be said to have been to treat a specific condition. His symptoms had stabalised and this appears at best a precautionary dose. Given that this coincided with a stabalisation in the claimants life, I find that even without the treatment, the effect cannot be describes as substantial, or impacting his day to day functioning.[47]The next incident in time is then June 2023 when the claimant is accused of sexual harassment. On the 3rd of July he consulted his GP again and notes that he had panic attacks triggered by these new allegations. However these allegations resolved relatively swiftly and by his consultation on the 31st of July he appears to have calmed. Although his sertraline is increased, the diagnosis is work related stress. The claimant clearly has a propensity to become stressed when faced with challenges. He was unable to work for a short period. However, I find the effect to be transitory and only related to episodic criticism of him. There is insufficient evidence that these symptoms were affecting him in a substantial way, for anything other than a brief period of time.[48]The human condition is such that at times we will be physically and mentally affected by acute stress. It is often specific and transitory. This manifestation is a fact of life and not in and of itself a disability. The claimant’s issues sit comfortably within this range in my finding.[49]In October 2023 there were further disagreements between the claimant and his employer. He went off sick and self certified this on the 9th of October 2023. On the 25th of October the respondent requested a sick note. The claimant had consulted his GP the day before, and all of the symptoms he reported were related to the allegations and situation that was ongoing at work. He stated that he said to HR that if they did not resolve matters he might have no choice but to kill himself. This appears to be an attempt to control the situation rather than a genuine ideation. This again is an episodic reaction to his workplace issue. There is no diagnosis of an ongoing condition at this point. He was hopeful the meeting on the 25th of October 2023 would resolve the issues – and by implication his current stress. I find therefore this was related to the situational stress at work not an ongoing condition.[50]Finally on the 31st of January2024 (post dating the claimant’s dismissal) he was diagnosed with a stress and adjustment reaction. There is no mention of depression or anxiety disorder. The culmination of his dismissal and break up with his girlfriend is likely to have caused anyone to have suffered low mood and stress at such issues. There is no indication at this point that the condition is likely to continue. The symptoms are distinct from the other matters discussed.[51]Viewing matters in the round, I do not find that the claimant suffered with a single ongoing condition of depression and anxiety disorder (at the relevant times). His medication being ongoing is irrelevant to the overall assessment. It is administered and modified at times of stress and maintained for a period thereafter. It is not diagnostic. In between the episodes there is no evidence that the symptoms are ongoing, and he has little evidence of any ongoing substantial adverse effect. The symptoms the claimant does describe following the difficulties in his workplace are within the usual bounds of what any individual may expect. Equally he himself expected them to resolve once the issues in the workplace were resolved. I do not find they had a substantial long term effect. The issues were reactive rather than ongoing.[52]The claimant’s reaction was each time short term and situational. I do not find as suggested by Mr Deane that there is an ongoing nexus between each matter capable of sustaining the argument. At no point could it have been foreseen that the condition had become or was likely to become a long term reaction, was limited to the consequence for the claimant of each episode. Vulnerability to stress and anxiety is distinct from a formal diagnosis of a mental health condition within an approved frame work (for example as defined in DSM-5).[53]For all of these reasons I find that the claimant was not a disabled person within the meaning of the Equality Act at the relevant times. Deposit orders[54]I shall deal with this matter briefly. The allegations in the list of issues at page 70 are narrow and substantially out of time.[55]It seems to me just on the time point alone there are issues. The protected acts complained about in 2022 and the detrimental action said to be linked to it appear substantially later in time in 2023 and 2024, with no obvious nexus, between the events, from the information that I have seen.[56]The sexual harassment allegations are in July 2023, again significantly out of time. The claimant relies upon this as an act of victimisation. Based on the evidence in the claim form and the material before me, the prospect of overcoming these jurisdiction points for the relevant claims and then establishing a nexus between the protected acts in 2022 and the later matters complained of (involving third parties) seems at best remote, based on the information contained in the claim.[57]I therefore consider the claimant has little reasonable prospect of success in establishing his victimisation claim to the relevant standard and I make a deposit order accordingly.[58]I have very little evidence before me as to his means. The claimant said in evidence he has many debts. Without proper evidence of his means, I accept he is only working intermittently and I make an order of £50. This may be a small amount but I find it will be significant to the claimant. It does open the first stage of adverse cost findings should the claim for Victimisation be unsuccessful and the claimant needs to be aware of this and the potential consequences this may have.[59]That is my judgment.