Mr S Mellor v Kensington Park School Ltd and Mr B Tan: 2217985/2024
EMPLOYMENT TRIBUNALS
Case No 2217985/2024
Between
Mr S MellorClaimantKensington Park School Ltd and Mr B TanRespondent
Before
Employment Judge Mr J S BurnsMs A Niaz-Dickinson (instructed by Counsel) for claimantMr R Hignett (instructed by Counsel) for respondentDate 5 February 2025
JUDGMENT
The claims of disability discrimination and harassment are struck out.
REASONS
[1]The judgment followed a Public Preliminary Hearing to determine whether the Claimant was disabled (by anxiety/depression and stress) for purposes of the Equality Act 2010 at the material time (September 2023 to March 2024).[2]I was referred to documents in a bundle of 164 pages. This included an impact statement dated 20/12/24. There were three sick notes but no other medical notes. The Claimant was cross-examined on this material and I asked him a few questions before he was reexamined. I also read statements from Mr D Jolley (a golfing friend of the Claimant) and from Ms J Mellor (the Claimant’s wife), neither of whom were cross examined. A summary of the relevant law[3]Per section 6 Equality Act 2010 a person has a disability if they have a physical or mental impairment which has a substantial (which means “more than minor or trivial” limitation going beyond the normal differences which may exist between people) and long-term adverse effect on his ability to carry out normal day to day activities. In assessing whether there is or would be a substantial effect, one disregards measures such as medical measures which are being used to treat it. Sch 1 para 5(1) and (2). A claimant does not have to show why he has an impairment - but merely the fact that he does have one; The question is “Is there something wrong with Applicant?” The Applicant does not have to show underlying cause of impairment is physical (rather than mental). Normal day to day activities are activities such as walking, driving, typing and forming social relationships. The effect is long term if it has lasted or is likely to last 12 months or for the rest of the person’s life (Sch 1 para 2). The question as to the likely duration of an effect which has which has not already lasted 12 months must be answered at the time of the events complained of and not retrospectively.[4]I was referred by Ms A Niaz-Dickinson to an extract discussing mental health conditions in the IDS brief handbook, and by Mr Hignett to the following authorities; Royal Bank of Scotland plc v Morris UKEAT_0436_10 at para 55 “The burden of proving disability lies on the Claimant. There is no rule of law that that burden can only be discharged by adducing first- hand expert evidence, but difficult questions frequently arise in relation to mental impairment, and in Morgan v Staffordshire University[2002] IRLR 190, [2002] ICR 475 this tribunal, Lindsay P presiding, observed that “the existence or not of a mental impairment is very much a matter for qualified and informed medical opinion” (see para 20(5), at p 485A-B);” In J v DLA Piper UK LLP UKEAT0263/09/RN, where Underhill J, as he then was, drew a distinction between the symptoms of low mood and anxiety caused by clinical depression, which was a situation likely to meet the definition of disability, and those derived from a reaction to adverse circumstances such as problems at work, or adverse life events, which was not. Findings of fact and conclusions[5]The Claimant who was born on 29/5/1952 and was 71 years of age at the time of the events complained of, was employed as headmaster of R1’s school in London.[6]He says that work-related events from September 2023 (when he was approached and invited to resign from his employment,- until March 2024, when he was dismissed) caused him mental health problems the effect of which amounted to a disability, and which effects still continue.[7]There was a preliminary hearing in this matter on 5/11/24 at which the Claimant’s impairment was described and recorded by the EJ as “stress and anxiety”. It is since then that depression has been added to the Claimant’s pleaded case. When asked about this the Claimant explained that “as time went on the condition worsened so that description (depression) became better to describe it”. However this explanation does not support and if anything undermines the proposition that the Claimant was depressed during the relevant period and tends to suggest that it is only recently that the Claimant himself thought that he was depressed.[8]The Claimant was ordered to send all his relevant medical records to the Respondent by 13/12/24. There are no GP records in the bundle nor any GP or other letter containing any professional diagnosis of depression and anxiety. The Claimant said he had asked his GP for his medical notes to be sent to his solicitor but was unable to explain further about this. Nor was this issue ventilated further in submissions. The Claimant is therefore in breach of the order to give proper disclosure in this case, without any adequate explanation.[9]The Claimant stated that did not consult with his GP about these matters in 2023 but that he did so in the first three months of 2024 during econsulations (ie remotely) on three occasions when he obtained the three sick notes which appear in the bundle. These cover the period 16/1/24 to 23/3/24 and all refer to “stress at work” but not to anxiety and depression. When asked about this the Claimant explained that his references to anxiety and depression in his impact statement was “a description I have used following a discussion with GP” but he went on to confirm that the GP had not told him that he suffered from depression or anxiety. The Claimant appears to have self-diagnosed for purposes of his ET claim.[10]While the Claimant has proved he had work-related stress for a few months he has not proved that he had or has the impairments of anxiety and depression at any time.[11]In his impact statement the Claimant stated that his symptoms began on 19/9/23 but in his further particulars he stated that “as part of the treatment and procedures that the First Respondent subjected the Claimant to he was signed off as unfit for work due to stress at work.” The Claimant has been unclear as to the date when his claimed disabling effect started.[12]The Claimant said nothing about this in chief or under cross-examination, but in answer to a question from me about what evidence there was that during the relevant period his mental health issues would last at least 12 months, his reply was “I could see no end in sight.” I do not regard this as sufficient. The only very scant objective evidence about this is the sick notes which state that the Claimant had work-related stress which required time off for some periods of weeks only and which by implication suggest that the stress will abate when the identified stressor (events at work - namely the Claimant’s involvement in a disciplinary investigation culminating in a dismissal) end.[13]The Claimant has not proved that his condition, such as it was, was likely to last at least 12 months.[14]The Claimant did not refer to any attempts to consult with and obtain professional help or advice about his condition apart from two unrecorded and undated telephone calls he stated he had with MIND. He has at no stage taken any medication or sought or received any other conventional treatment such as psychotherapy, professional counselling or CBT. While he referred to engaging in “talking therapy” he clarified that what he meant by that was chatting to friends at the golf club or to colleagues on the Board of St Nicholas School. The Claimant’s decision not to pursue medical treatment or medication, despite experiencing symptoms, suggests that the condition is not of a severity that necessitates medical intervention.[15]The Claimant stated in his witness statement that an example of the disabling effect was that “I had to ensure all correspondence was directed through my solicitors as I felt completely overwhelmed each time the Respondent corresponded with me”. It is normal both for a litigant to feel some litigation stress and for a professionally represented litigant to use his solicitor for correspondence.[16]The Claimant is a keen golfer. He was Vice-Captain of Alton Golf Club from September 23 to August 24 and stepped up to Captain from September 24 to August 25. He attends monthly meetings and liaises with the Vice-Captain to organise things such as matches competitions and social events which attendances take about 2 hours a week not including time actually spent playing golf. He volunteered for both these appointments.[17]The Claimant claims he still plays golf but less now than he did before. He has produced his handicap playing record covering the period September 2021 to September 2024, which he claims supports his argument that he is playing less and worse golf since his problems with the Respondent started in September 2023. Making the generous assumption for present purposes that this is a record of every round the Claimant has played during the period recorded, the document shows(i) in the period September 2021 to August 22 he played golf 15 times(ii) that prior to 19/9/23 (when the troubles started) he played golf only once(iii) that in the period September 23 to August 24 he played golf 10 times and(iv) in July 22 his handicap was around 23, but improved in August 22 to 18.9, which improved level of golf-proficiency he was able to maintain throughout the relevant period and continuing to September 2024.[18]I do not accept the Claimant’s attempts to down play his involvement in leadership and active play at his golf club. His stepping up to Captain and the objective golf record shows that his main hobby has not been adversely affected.[19]The Claimant claimed in his witness statement that his relationship with his wife has been adversely affected. However his wife served a witness statement which is fully supportive of him. He claims his friendships have been affected but during his oral evidence referred to ongoing friendly interactions with golfers and colleagues. 12. The Claimant claimed “We, as a couple, have not travelled as much as we would normally simply because of my state of mind. I don’t particularly want to go anywhere”. However in oral evidence he said he had taken two holidays in Spain during 2024 to visit friends.[20]The Claimant has been Chair of the Board of Governors of a school called St Nicholas’s in Fleet since 2019. He has not stepped down from that role which appears to require of him attendance at regular meetings and taking the lead in the important decisions about running the school.[21]The Claimant claimed that he has missed meetings at both the golf club and at St Nicholas’s, because of his condition. He did not refer to this however in his impact statement and I give it little weight.[22]He makes other claims - for example about having suicidal thoughts and a lack of personal care. These are bare assertion unsupported by any actions such as seeking help from a doctor. It is also contradicted by the overall picture in which the Claimant appears as an outgoing active and popular person who is taking a leading role both at his golf club and in his voluntary work as School Governor.[23]The Claimant has not proved that his mental health problems such as they have been had or have a substantial adverse effect on his ability to do day-to-day activities .[24]Hence he has not proved that he was disabled at the relevant time and his claims for disability discrimination and harassment must be struck out.