L Kearey and Others v HCA International Ltd: 2221330/2024 and Others

EMPLOYMENT TRIBUNALS

Case No 2221330/2024, 2221331/2024, 2221332/2024

Between

L Kearey and OthersClaimant

HCA International LtdRespondent

Before

Employment Judge B Smith

Mr B Ikejiaku for claimant

Mr Tomison (instructed by Counsel) for respondent

Date 31 October 2025

JUDGMENT

[1]The first claimant (Ms Kearney) was not a disabled person as defined by section 6 Equality Act 2010 because of stress and or depression at the relevant times (ie. late August 2023 to 2 September 2024).

[2]The second claimant (Ms De Souza) was a disabled person as defined by section 6 Equality Act 2010 because of Guillain-Barre Syndrome for some but not all of the relevant times (ie. end of March 2023 to 2 September 2024). She was not a disabled by reason of that condition between the end of March 2023 and 3 May 2024. She was disabled by reason of that condition between 3 May 2024 and 2 September 2024.

[3]The second claimant (Ms De Souza) was not a disabled person as defined by section 6 Equality Act 2010 because of work related stress or stressors at the relevant times (ie. end of March 2023 to 2 September 2024).

[4]The elements of the second claimant’s complaints of direct disability discrimination and harassment on grounds of disability predating 3 May 2024 are therefore dismissed.

[5]The third claimant (Mrs Mallan) was a disabled person as defined by section 6 Equality Act 2010 because of chronic shoulder and neck pain Case No: 2221330/2024, 2221331/2024 & 2221332/2024 and also anxiety for some but not all of the relevant times (ie. 27 March 2023 until 31 July 2024). She was not disabled by reason of those conditions between 27 March 2023 and 1 March 2024. She was disabled by reason of those conditions between 1 March 2024 and July 2024.

[6]The third claimant (Mrs Mallan) was not a disabled person as defined by section 6 Equality Act 2010 because of stress or depression at the relevant times (ie. 27 March 2023 until 31 July 2024).

[7]The elements of the third claimant’s complaints of direct disability discrimination and harassment on grounds of disability predating 1 March 2024 are therefore dismissed. Approved by:

[1]The First Claimant’s (Ms Kearey’s) claims of protected disclosure detriment set out at paragraphs 4.1.3, 4.1.4, 4.1.5, 4.1.6, 4.1.7, 4.1.13, 4.1.14, 4.1.15, 4.1.16 and 4.1.17 of the agreed List of Issues are struck out as having no reasonable prospects of success. The First Claimant’s other claims of protected disclosure detriment proceed.

[2]The Third Claimant’s (Ms Mallan’s) claims of protected disclosure detriment set out at paragraphs 26.1.8, 26.1.9, 26.1.10, 26.1.11, 26.1.12, 26.1.17, 26.1.18, 26.1.19, 26.1.21 and 26.1.22 of the agreed List of Issues are struck out as having no reasonable prospects of success. The First Claimant’s other claims of protected disclosure detriment proceed. Case No. 2221330/2024, 2221331/2024 & 2221332/2024 JUDGMENT having been sent to the parties on 23 October 2023 and written reasons having been requested in accordance with Rule 60 Employment Tribunal Rules 2024, the following reasons are provided:

REASONS

[1]By order of EJ Emery dated 23 January 2025 a preliminary hearing was to be held whether each claimant was disabled person as defined in s.6 Equality Act 2010 (‘EQA’). During a preliminary hearing between 4 - 6 June 2025, EJ McCooey sought to determine whether the three claimants were disabled for the purposes of s.6 EQA. However, the respondent’s position at that stage was that it should be determined at a later hearing because the claimants’ impact statements did not sufficiently deal with the impact at the relevant period and the medical evidence was sufficient (paragraph [37] of the orders dated 11 June 2025). Also, during that hearing the claimants wanted to rely on updated impact statements as well as 232 pages of additional medical evidence for Ms De Souza such that the respondent was not in a position to deal with the new material overnight. Both parties agreed therefore for the substantive issue of disability to be determined at this hearing. The orders from that hearing included disclosure of medical records by the respondent (paragraph 9).

[2]An agreed list of issues dated 27 June 2025 included the standard issues for disability (eg. at [7.3]). Impact statements had previously been ordered by EJ Emery (above) with the Tribunal’s standard directions including for the claimant’s to include what the effects of their medical conditions were on their ability to do day-to-day activities (paragraph 36.2). The order expressly required the claimants to give clear examples. To the extent that disability was not conceded by the respondent the claimants were required to disclose their GP records and any other medical records that were relevant (paragraph 37.1).

[3]These Reasons must therefore be understood in the context of this being a second chance for claimants, who have been represented by solicitors during the relevant time, to adduce all relevant evidence on the issue of disability, the relevant issues having been clearly identified to them by the Tribunal well in advance. Procedure, documents, and evidence heard

[4]The respondent was represented by counsel during the hearing. The claimants are represented by a solicitors firm (generally). During the hearing they were represented by a consultant to that firm.

[5]No adjustments were required or asked for by any of the parties or witnesses save for Ms De Souza, who made the Tribunal aware that her arm was in a sling and so may need extra time to access the bundle. In any event, the Tribunal fully took into account the claimants’ various diagnoses and conditions and gave full consideration to ensure their full and fair participation in the hearing, and the relevant parts of the Equal Treatment Bench Book, and the Presidential Guidance: Vulnerable parties and witnesses in Employment Tribunal proceedings. Whilst it is correct that some parties had a degree difficulty with the electronic bundles during the hearing, the Tribunal ensured that sufficient time was given to make sure that they could reference the correct documents in the hearing and no unfairness arose from this.

[6]The claimants gave evidence under affirmation and were cross-examined. Although some re-examination was permitted, the Tribunal did not allow by way of re-examination leading questions or questions which did not arise from the claimants’ answers under cross-examination. The Tribunal took those steps necessary to ensure that a fair hearing took place for all parties and that the questioning of witnesses was appropriate. This involved more control of the witness evidence that might normally be expected for parties represented by legally qualified representatives.

[7]It was also unfortunately necessary to remind the claimants and representatives that there should not be interrupting during the hearing, nor should they speak over the Judge, and that even though it was a remote hearing, it should still be treated as a formal hearing with mutual respect. It was also necessary to remind some claimants to answer the question that was asked of them.

[8]Breaks were taken as required. It was not suggested that insufficient breaks were given during the hearing.

[9]At least one claimant objected to the respondent relying on a skeleton argument. The objection was not upheld. The claimants and their advocate was given sufficient time during the hearing to read and consider the document. No unfairness arose from this as a result: they were professionally and legally represented and there was nothing in the skeleton argument that could not have been reasonably anticipated by the claimants in all the circumstances, nor was anything raised that could possibly have justified an adjournment (applying the overriding objective).

[10]The agreed documents were:(i) Hearing bundle paginated to 1154;

(ii) Claimant solicitors’ letter dated 13 October 2025;

(iii) Respondent skeleton argument; and

(iv) Additional bundle of medical records for Ms de Souza (232 pages).

[11]Item (iv) above was originally omitted from the bundle in error but was included in the evidence by consent.

[12]Although there was some discussion during the hearing about redactions, the parties ultimately agreed to the Tribunal considering all of the evidence in the hearing bundles.

[13]The parties confirmed that the impairments relied on were: for Ms Kearey: Cancer (September 2021 onwards, accepted by the respondent as sufficient to fulfil the criteria of s.6 EQA 2010), and stress and depression (May 2022 onwards, disputed by respondent); for Ms De Souza: Guillain-Barre syndrome (‘GBS’) from 7 June 2023 onwards, and work related stress and stressors from 15 June 2023 onwards (both disputed by respondent); and for Mrs Mallan: chronic shoulder & neck pain from March 2023; stress, anxiety and depression from March 2023 (all disputed by the respondent).

[14]These were confirmed during the hearing and were broadly consistent with the claimant’s letter dated 13 October 2025, sent shortly before the hearing (the Tribunal being conscious of some conflicting dates having been used in the note of the previous preliminary hearing and draft list of issues). Although the correspondence refers to the start date of Ms de Souza’s GBS impairment being 15 June 2023, the Tribunal’s notes suggest that the confirmed claimed start date as of the hearing was 7 June 2023, and this is consistent with her being admitted to hospital on 8 June 2023. In any event, nothing turns on this exact alleged start date and the Tribunal had sufficient information to make proper findings about the start and end dates of the impairments notwithstanding what was claimed. It was necessary to refer in the Judgment to a start date of end of March 2023 for Ms De Souza because of alleged issue 19.1.1 from the list of issues (ie. when the alleged disability detriments were said by the claimant to have started, notwithstanding the claimed start date of the impairments).

[15]The agreed issues were: a. Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide: i. Did they have a physical or mental impairment: [ ]? ii. Did it have a substantial adverse effect on their ability to carry out day-to-day activities? iii. If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment? iv. Would the impairment have had a substantial adverse effect on their ability to carry out day-to-day activities without the treatment or other measures? v. Were the effects of the impairment long-term? The Tribunal will decide: 1. did they last at least 12 months, or were they likely to last at least 12 months? 2. if not, were they likely to recur?

[16]The respondent was permitted to withdraw a concession on disability in respect of Ms De Souza originally pleaded in its Grounds of Resistance. This was not, ultimately, objected to by that claimant’s representative during the hearing. In any event, this would have been permitted either in the interests of justice or as an amendment to the response, applying Selkent v Bus Company v Moore

[1996] ICR 836

and Vaughan v Modality Partnership

UKEAT/0147/20/BA

(V) on the basis that the balance of prejudice was in favour of the concession being withdrawn. This is because I accepted that the concession was only made on the basis of a GP’s fit note which, after disclosure of the 232 page bundle of GP records, was potentially undermined by the content of those documents. To proceed on the basis of such a concession alone would have been contrary to the reality of the documentary and medical position. It was also not unfair because Ms De Souza was represented and had ample opportunity to adduce evidence on disability from the previously conceded point onwards, both in terms of documents and oral evidence from the Tribunal’s questions. There was no request for an adjournment arising from the removal of that concession. In any event, given the outcome of the Tribunal’s decision in respect of Ms De Souza, no unfairness arose: she was successful in establishing disability slightly beyond the concession that had been withdrawn.

[17]Both parties made oral submissions at the close of the evidence for each claimant.

[18]The Tribunal explained the procedure to be followed at the start of the hearing. No questions or objections to that procedure were made.

Relevant Law

[19]Disability is defined in section 6 EQA:(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.

(2) A reference to a disabled person is a reference to a person who has a disability.

(3) In relation to the protected characteristic of disability - (a) a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b) a reference to persons who share a protected characteristic is a reference to persons who have the same disability […]

[20]Substantial means more than minor or trivial: s.212(1) EQA.

[21]Long term is defined in schedule 1 paragraph 2 EQA:(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.

[22]Paragraph 5(1) of schedule 1 EQA says: 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.

[23]I applied the relevant EHCR Guidance as appropriate. Some of this is referenced in the respondent’s skeleton argument, which it is not necessary to reproduce here.

[24]In determining whether at the relevant time an impairment producing a substantial adverse effect was ‘likely’ to last for 12 months, I refer to SCA Packaging Ltd v Boyle

[2009] IRLR 746

. ‘Likely’ is to be given its ordinary meaning and does not mean ‘probably’. The EHRC Guidance at C3 suggests that ‘likely’ should be interpreted as meaning that it could well happen. I applied that test throughout my decisions.

[25]On the issue of long-term, paragraph 2(2) of schedule 1 EQA says: In an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

[26]Applying the EHCR Guidance at [C6]: If the substantial adverse effects are likely to recur, they are to be treated as if they were continuing. If the effects are likely to recur beyond 12 months after the first occurrence, they are to be treated as long-term.

[27]The assessment of long-term and likely to recur must be at undertaken at the relevant time of the alleged discrimination and not by reference to future health developments.

[28]I took into account all authorities referred to by the parties. In particular, I was referred to Phillips v Aneurin Bevan University Local Health Board Case no. 1601375/2022 by the claimant. This was of limited assistance as a first instance decision. However, I accept that in principle it could be lawful for a claimant to be disabled by reason of work-related stress.

[29]I fully accepted that it is not strictly necessary for a claimant to have a formal diagnosis before the Tribunal can make a finding that the claimant had a mental of physical impairment. An example of this is in J v DLA Piper UK LLP [2010] ICR at [38]. Specifically, the Tribunal may be able to draw an inference that there is such an impairment from its findings about the claimant’s ability to carry out normal day-to-day activities and any adverse effect on that ability and whether or not the adverse effect is long term (at [40(ii)]): ‘in reaching those conclusions the Tribunal should not proceed by rigid consecutive stages, specifically in cases where there may be a dispute about the existence of an impairment it will make sense for the reasons given in paragraph 38 above to start by making findings about whether the Claimant’s ability to carry out normal day-to-day activities is adversely affected on a long term basis and to consider the question of impairment in the light of those findings’

[30]There is also a legitimate distinction to be drawn, if appropriate and on the evidence taken as a whole, between symptoms of low mood and anxiety which stem from a mental illness and the same symptoms which occur as a reaction to adverse circumstances: J at [42].

[31]The Tribunal must draw on the totality of the evidence when making its findings and is not bound by any particular wording used in one part of the evidence, although sometimes that will be highly persuasive (such as the words used by clinicians, depending on the context). Findings and Conclusions - Ms Kearey

[32]It was not disputed that Ms Kearney was disabled by reason of Cancer during the relevant times. Accordingly these findings and conclusions only relate to the disputed impairments.

[33]The evidence in respect of Ms Kearney was limited to an updated disability impact statement, a letter dated 7 February 2025 from Dr Barnett, and a second undated disability impact statement. The Tribunal considered it to be highly unusual for such little evidence to have been adduced when it needs to make a determination about disability status and Ms Kearey plainly had a significant amount of medical records arising from her cancer which may have been relevant to the disputed impairment. Those records were not relied on by her in this hearing, however, even though it was the second chance for disability to be considered and the Tribunal’s orders as outlined above were clear about disclosure. Ultimately, however, it would have been wholly contrary to the interests of justice and overriding objective for the Tribunal to have adjourned in this situation, and no adjournment was sought by the parties.

[34]I find on the basis of Dr Barnett’s evidence that the claimant had a diagnosis of cancer since October 2021 and, Dr Barnett accepting the claimant’s reporting (which I, in turn, accept), that the side effects of the medication for that caused significant joint and muscle main, insomnia, fatigue and weakness, which made it more difficulty for the claimant to carry out normal activities from daily living such as taking longer to get to work, and she walked more slowly. Dr Barnett also records that the claimant started reporting anxiety and distress and, as a result, she started taking an antidepressant in May 2022 and continues to do so. I accept and find that the claimant took that antidepressant accordingly. Dr Barnett also refers to diagnoses of Carpal Tunnel Syndrome. The letter also includes ‘I have spoken to Miss Kearey several times over the past year about how stressful she has found dealing with her health problems and how her work situation has impacted on her mental health and caused further low mood and anxiety. Unsurprisingly, with such a list of serious medical conditions in close succession, Miss Kearey has been low in mood and strived to continue working when she was able to but has clearly been very vulnerable in terms of her physical and mental health’. On the basis of this evidence, I accept that the claimant has experienced low mood during at least some of the relevant times. Dr Barnett also states that the claimant has been unable to tolerate a higher does of her antidepressant and has had some talking therapy to help.

[35]The claimant’s first disability impact statement does not provide clear evidence of the impact of the disputed impairments on her day-to-day activities during the relevant period. It refers to anxiety and low mood during the present. Dr Barnett’s letter only really gives evidence about the impact of the side effects of the claimant’s cancer medication. The first disability impact statement also talks about the effect of the claimant’s cancer treatment, but this does not assist her on the disputed impairment. This is similarly the case for the claimant’s second disability impact statement.

[36]I find on the basis of the claimant’s second disability impact statement that she started feeling stressed in February 2022 when the surgeon she was working for decided to organise his practice and he no longer required his services. She has also been taking an antidepressant since 2022 which coincided with her being placed to work in a cancer centre, which she found distressing.

[37]The above are the limitations of the findings of fact I can make about the claimant given the paucity of evidence about the effect of the disputed impairments on her day-to-day activities and any impairment.

[38]Taking this claimant’s evidence as a whole, I an unable to conclude that there were any adverse effects on her day-to-day activities other than those which arose from her cancer diagnosis, in particular as side effects of her medication. There is insufficient cogent evidence from the claimant or her medical records of any other adverse effects on her day-to-day activities from the claimed impairment. Although the claimant briefly mentioned in cross-examination that she was at times distressed, tearful, couldn’t sleep, and broke down at various times at work, this was insufficient to establish what the claimant needed to in all the circumstances, such as that any impairment had a substantial effect on her ability to carry out day-to-day activities and when. The evidence taken as a whole did not establish adverse impact on the day-to-day activities of the claimant from the claimed impairments.

[39]Also, I am unable on the evidence to conclude that the claimant had the impairments claimed. In the absence of findings of adverse effects on the claimant’s day-to-day activities I am unable to infer from those that an impairment was present. Also, there is no clear diagnosis from Dr Barnett of the claimed impairments. The claimant’s representative confirmed that Dr Barnett’s evidence was obtained specifically for these proceedings. Whilst I accept that a diagnosis is not strictly required, no such diagnosis has been made and nor is there any other proper evidence from which I could infer that there were the impairments claimed. In particular, I note that Dr Barnett is careful to list the diagnoses that the claimant has and these did not expressly include those claimed. Although this claimant invited me to find that there must be depression, otherwise no antidepressant would have been prescribed, I do not accept that, in light of all the evidence, this would be a proper finding to make given the absence of other supporting evidence of an impairment. The fact that this claimant suffered from low mood is equally consistent with the prescription of the antidepressant, and this claimant’s low mood is equally consistent with her cancer diagnosis rather than providing a sufficiently clear evidence base from which I could find the separate impairments claimed of stress and depression. I am also satisfied that the low mood that was established in evidence was limited to the understandable reaction that the claimant was having to adverse life events as opposed to amounting to an impairment for the purposes of the statutory test.

[40]I also did not find that the evidenced low mood of the claimant would have had a substantial adverse effect on her day-to-day activities without the treatment she had received. This is because there is a lack of evidence that this is the case. In fact, it was clear from the evidence that the claimant’s symptoms have continued despite her taking medication and it was unclear what effect it was actually having. There was no sufficient clear evidence about what adverse effects the claimed impairments were having or would have been having if the claimant was not taking the medication.

[41]In light of the above findings and evidence, I conclude that Ms Kearey has not, in all the circumstances, established in evidence either that she had the disputed claimed impairments, or if she did, that they had a substantial adverse effect on her ability to carry out day-to-day activities, or that the claimed impairment would have had a substantial adverse effect on her ability to carry out day-to-day activities without the treatment or other measures.

[42]In light of those conclusions it is neither necessary nor possible or me to reach a conclusion on the long term condition of the statutory test.

[43]For those reasons, Ms Kearey was not disabled for the purposes of s.6 EQA by reason of depression or stress during the relevant times as set out in the Judgment. However, this does not result in any of her element of her claims being dismissed given the impairment that was conceded by the respondent. Findings and Conclusions - Mrs Mallan

[44]Mrs Mallan’s claimed conditions were chronic shoulder and neck pain from March 2023 and stress and or anxiety and or depression from March 2023.

[45]The evidence for Mrs Mallan in relation to shoulder and neck pain included her original and updated disability impact statement. This included that in relation to her pain, since 2022 she had suffered from persistent tingling, stiffness and discomfort in her shoulders which made daily tasks such as cooking, cleaning and sometimes getting out of bed difficult. I accept that her condition had this effect because there was no clear evidence to undermine those details. I also saw her chiropractic records from November 2023 to September 2023 and a letter from her sports massage therapist. I also saw the claimants medical records which included from 2 November 2023 that she had suffered from neck and shoulder pain for the previous 4 years. Also, an occupational health report from 3 November 2023 referred to neck and shoulder pain. Further, a GPs letter dated 25 June 2023 included that Mrs Mallan was referred for an MRI in 2023, although I accept that no hospital records of this were provided.

[46]Mrs Mallan accepted in cross-examination that the first time she had an occupational health assessment through the respondent for neck and shoulder pain was on 2 November 2023. She stated that the pain was there before but she had tried to manage it with medication, and also that it had caused her a lot of irritation from sitting for long periods of time such that she couldn’t sit or stand for long periods of time. She agreed with the Tribunal that it appeared that she had first reported it to her GP in March 2023. She also provided further compelling details in cross-examination about the impact of the pain on her day-to-day activities. I accepted this evidence because it was detailed, and there was no other reason to doubt it. Overall, I considered it broadly consistent with the documentary position. This evidence included that she went for days without making contact with others, not eating, and sleeping using tablets to help her sleep. I find that this claimant’s impairments had that effect on her, accepting her compelling oral evidence of this. It is also right to acknowledge that things became worse for this claimant in November 2023 when a work from home request was refused.

[47]The evidence in relation to stress, anxiety and depression included her disability impact statements, and a letter from Dr Nussain dated 7 November 2023 which referred to stress, anxiety and low mood. Occupational health records dated 1 March 2024 refer to this claimant’s mental health as being situational, where early resolution was likely to improve her mental health, high daily functioning on 12 April 2024, but also high anxiety and anger about her work situation on 20 May 204.

[48]Further, occupational health reports included a negative psychological impact on her health and wellbeing on 3 November 2023, ongoing perceived work related concerns causing stress and affecting her physical and psychological health on 5 January 2024, that resolution of workplace difficulties would help alleviate work-related anxieties (1 February 2024) and high situational anxiety (2 March 2024). The report dated 20 June 2024 suggested an improvement and then deterioration in this claimant’s mood.

[49]I find that the claimant had the physical impairment of chronic shoulder and neck pain. The existence of this impairment is well-established in the documentary evidence provided.

[50]The content of the sports massage therapist letter places the start of the shoulder pain (something the claimant was slightly unclear about in her evidence) in 2022: this was when the claimant was first assessed and treated (26 March 2022). I find accordingly that this was the case. However, this letter assesses the claimant as having overall tension and tightness in her back, and reporting pain and discomfort with a tingling sensation. Taking everything into account, I do not find that this is sufficient to establish that this impairment was having a substantial adverse effect on the claimant’s day-to-day activities at that stage. This is because there was a lack of cogent evidence that this was the case. The claimant was herself slightly unsure about the start date and her account of this has varied. In the absence of clear evidence of the effect of the impairment at that time, I do not make the required findings. Ultimately, there was insufficient evidence about the effect of any such pain on the claimant in 2022 that I can find that there was a substantial effect on her day-to-day activities in 2022.

[51]I am able to find, however, that there came a point when the effect of the pain on this claimant’s day-to-day activities was substantial, accepting her impact statement and oral evidence on this. I accept and find that Mrs Mallan found many things on a day-to-day basis more difficult as a result of the pain and as such she meets that condition of the statutory test. I repeat my findings above about the specific activities affected. I find that the point at which this is evidenced is March 2023. This is because this is the first evidenced time that she presented the problems to her GP (as set out in the letter dated 25 June 2025). The absence of reports of this to the GP before that time (the claimant having accepted that she had registered with that GP before that time) is consistent with this finding. Whilst I accept that I do not appear to have been provided with all of the relevant medical records, I am satisfied that after March 2023 the claimant had various treatments and assessments, including an MRI and an injection was at least considered. The claimant also sought occupational health help in November 2023. This is consistent with the impairment having a substantial adverse impact on her day-to-day activities, both at the time of November 2023 and also not before March 2023. There was also clearly an increase in the severity of her symptoms in November 2023 because at that stage she started seeing a chiropractor. It is likely that this was associated with stress and anxiety about work given the claimant’s evidence in cross-examination about the workplace trigger. This finding is also supported by the occupational health report dated 3 November 2023. This report included that the claimant had reported psychological symptoms perceived as both personal and work related in nature, and an exacerbation of left sided neck and shoulder pain as a result On the basis of the claimant’s GPs letter and her own evidence I am satisfied that the pain has continued since that date, and at least as far as August 2024.

[52]On the question of long-term, there was a paucity of evidence about the prognosis of this claimant’s condition. It is necessary for the Tribunal to consider whether there was an evidenced point where it could safely conclude that it was likely to last 12 months or more, applying the legal test set out above. I have concluded that there is no such evidenced point. The documentary evidence suggested a link between the claimant’s pain and how she felt whilst at work. This is unsurprising. I refer to my finding above that things got worse in November 2023 when the claimant’s work from home request was refused. However, there is also evidence referred to above about the effects of the claimant’s symptoms being at least to a degree situational (such as the occupational health report dated 2 March 2024). There was also every prospect of things improving. Taking everything into account, I am unable to locate in the evidence a point before 12 months where there was sufficient evidence to make a finding that the effects of this impairment that they were likely to last for 12 months However, at the 12 month point the claimant has met the long term test.

[53]On the evidence, the claimant is also not assisted by paragraph 2(2) of

[54]For those reasons, I find that Mrs Mallon was disabled by reason of chronic neck and shoulder pain as of 1 March 2024.

[55]Turning to Mrs Mallon’s other claimed conditions, I find that the documentary and oral evidence clearly establishes the impairment of anxiety. It is sufficiently referenced to amount to an evidenced impairment. I do not find that there is sufficient evidence of stress, however, as a distinct impairment, and in the absence of clear evidence of a specific a diagnosis of depression I do not find that the claimant had that impairment either. Although the claimant’s GP’s letter does make reference to depression, there is no clear evidence of a formal diagnosis of this. The claimant’s GP letter dated 7 November also only refers to stress, anxiety, and low mood. Whilst there are cases where the impairment can be safely inferred from other findings about the difficulties suffered by a claimant in terms of their day-to-day activities, this is not one of them given that the day-to-day activities in fact are just as consistent with the impairments I have otherwise found to have been evidenced. To the extent that stress was mentioned by the claimant or in the documents, I was not persuaded, taking the circumstances as a whole, that this amounted to anything more than adverse reactions to life events as opposed to a mental health impairment. This is because there was no good and sufficient to show otherwise and this was the more natural conclusion that could be drawn from the evidence.

[56]The Tribunal must then ask when the impairment of anxiety started having a substantial adverse effect on Mrs Mallan’s ability to carry out day-to-day activities. I find that this started in March 2023. This is in part because the evidence suggests a link between the claimant’s pain and anxiety and this was clear in the claimant’s impact statement. Overall, I found her evidence to be clear, credible and reliable in this area. There is also evidence of the claimant’s mental health impairment from the 3 November 2023 report: this both consistent with it not being present before March 2023, and it being present after that date.

[57]I do accept that there was a degree to which the claimant’s anxiety was situational, however, I consider that the oral and documentary evidence strongly suggests that this was more than just an adverse reaction to ordinary evidence. The claimant’s anxiety was clearly having more of an effect that simply day-to-day and time limited stress. In particular, the high situational anxiety is supported the occupational health report dated 2 March 2024. My finding that the effects started in March 2023 is also corroborated by the claimant’s GP letter: ‘Mrs Mallan suffers with the Chronic Neck and shoulder pain and along with … Anxiety, …. She presented at the surgery between the dates of March 2023 to August 2024 with the above ongoing problems.’

[58]The Tribunal must then ask at which point the effect of the impairment of anxiety became long term. However, there is no clear evidence of prognosis. It did appear to be linked to work, as set out above, and it follows that it could well have resolved at any stage, or got better after the increase in symptoms in November 2023. Taking everything into account, and applying the legal test above, I do not consider that there is a sufficiently evidenced point before 12 months from which I could properly make a finding that the effects of the impairment were likely to last 12 months or more. In those circumstances, the claimant only meets the long term condition at the 12 month stage.

[59]On the evidence, the claimant is also not assisted by paragraph 2(2) of

[60]For the above reasons, Mrs Mallan was disabled by reason of anxiety from 1 March 2024 onwards. Findings and Conclusions – Ms De Souza

[61]It is fair to record that Ms De Souza found giving oral evidence difficult. This was not assisted by the disruption to the hearing mentioned elsewhere in these Reasons. However, I was careful not to hold this against her. The presentation of a witness in the particular circumstances of this case will rarely assist the Tribunal in making its determinations, and I put this out of my mind when considering her evidence. Rather, my focus was on the content of her answers and the written evidence. It is also important to note, however, that this was also her second chance to adduce her evidence, she was represented, and the issues to determined had been well and clearly outlined well in advance of the hearing. This informed at least some of my limitation on questions asked by Ms De Souza’s representative in reexamination. Taking everything into account, I was satisfied that Ms De Souza had a full opportunity to give her evidence in a manner that was fair to all parties.

[62]To the extent that Ms De Souza at times sought in her oral evidence to distance herself from some of the medical records, I preferred the written documentation. The claimant did not present any sufficient evidence for me to prefer her oral account over the medical records in all the circumstances. I considered it more likely than not that the contemporaneous medical records drafted by regulated professionals would be accurate than the claimant’s position adopted significantly after the event.

[63]The evidence in relation to Ms De Souza included the following. She had two impact statements. However, the first largely addressed the impact after her dismissal. There was also a lack of detail. For example, it asserted GBS symptoms, migrants, IBS, fatigue, and facial twitching continue to disrupt daily life. However, it did not include detail about what disruption there was or when. Equally, the details about impact are specifically about what was after her dismissal.

[64]The claimant’s updated impact statement was also more of a complaint about her treatment at work as opposed to the impact of her impairments on her day-to-day activities. However, it was right that the claimant did take some time off work during the relevant period. The claimant makes a brief reference to being unable to sleep in July 2023. There were some details about day-to-day activities in 2023, such as (in particular after July 2023) the claimant finding taking a bath more difficult and the claimant struggling to prepare meals from June to December 2023, and suggesting that she either had to rest or postpone some everyday chores in 2023. She also states, without any clear timeframe, that she had insomnia. She also states that from June 2023 she found getting ready for work, such as packing a bag, a struggle, and she found typing and answering the phone more difficult, and that she found the commute more difficult. There was also a social impact from June 2023 onwards. This evidence in part formed the basis of the respondent’s concessions on the extent to which the claimant’s GBS adversely affected her day-to-day activities as set out below, and the Tribunal’s subsequent findings.

[65]From the documentary evidence I can safely make the following findings: the claimant was signed off work from 12 June 2023 to 23 June 2023; occupational health found her not fit for work on 7 July 2023; on the basis of an occupational health report dated 24 July 2023 the claimant was not fit for work but there was an ongoing gradual improvement of her weakness (this being what the claimant reported). As of 18 August 2023, Ms De Souza had some balance challenges when waking in the morning (medical records dated 18 August 2023). There was also some tingling to her hands, lips and feet at that time, but these were slowly getting better (from the same medical records). On the basis of an occupational health report dated 21 August 2023 the claimant was fit to work and there was resolution of her facial paralysis with a slow improvement in the tingling and cold sensitivity of her lips, hands, and feet. The claimant’s fatigue was improving, although tasks make take slightly longer, her concentration was satisfactory. On the basis of the claimant’s medical record, on 20 October 2023 she had challenges with temperature control, numbness of her left little finger, very gradual improvement, and her facial symptoms included an occasional twitch of her right eye. However, by reason of an occupational health report dated 23 October 2023, her neurological symptoms continued to gradually improve. However, at that time the main challenge was numbness in her finger, although she was able to manage typing. She was assessed as fit for work and no adjustments were needed. From medical records dated 11 September 2023 the claimant’s eye had started to twitch again, which was stress related, but the consultation summary was ‘happy with recovery’. On the basis of the claimant’s occupational health report dated 18 December 2023 her neurologist was happy with her progress, and early resolution of perceived work stressors was advised. On the basis of an occupational health report dated 12 January 2024, the claimant had high levels of daily functioning, albeit with some anxiety. As of 9 February 2024, on the basis of the medical record, the claimant’s daily functioning was ‘ok’ although there was some disruption to sleep and she wasn’t fit for formal meetings. By reason of an occupational health dated 13 February 2024, the claimant had interrupted sleep and was not fit for work, with early resolution of work stressors advised. She was not fit for formal meetings. On the basis of the claimant’s occupational health report dated 5 April 2024, the claimant’s mental health had stabilised, but with some ongoing anxiety considering her work situation. There was some sleep disruption, occasional eye twitches, and reduced social interaction, however, she was then fit for meetings and to work. As of 9 May 2024 the claimant had high levels of daily functioning (on the basis of her occupational report dated 9 May 2024). From that report, the challenges were ‘when considering the work situation’. There was still some disrupted sleep during conversations with the business in April 2024, and the claimant had noticed an increase in physical symptoms such as eye twitching and finger tingling. She was fit for meetings and ‘on resolution’ likely to be fit for work according to that report (this was an assessment on 3 May 2024). The claimant then obtained a fit note from her GP dated 8 May 2024 stating that she was not fit to work. The fit note states that the reason she is not fir to work is because of GBS. However, on the basis of the GP records, this was not included after a clear and independent assessment. Rather, it was included as the cause at the claimant’s request. By an email dated 11 June 2024, the claimant had reported her GBS flaring up and being unable to get out of bed. By reason of an email dated 20 June 2024, Dr Hirst stated that the claimant previously had challenges with neurological symptoms, there were perceived work stressors and an associated increase in migraines and anxiety. By that time, Dr Hirst records an exacerbation of the claimant’s physical symptoms and very poor sleep, and the claimant was not fit for work or for formal meetings.

[66]I agree with the respondent’s submission, at least to a degree, that the claimant’s impact statement evidence about the impact on her day-to-day activities overall (as opposed to during the conceded periods) is somewhat undermined by the medical records which more reflect a changing situation in terms of what impact, if any, her neurological and other any other conditions was having on her day-to-day activities. It is difficult to square the claimant’s asserted position, which did not always sufficiently clear and detailed evidence on timeframes (particularly in 2024), with the documented improvements in both her conditions and daily functioning. It is for that reason that I cannot safely take the claimant’s impact statement, on its own, at face value or that it necessarily accurate for the entirety of the relevant periods. However, where there was corroborating evidence in the documented position, it was still useful evidence.

[67]I make a finding, on the evidence, that the claimant’s neurological condition was not one where prognosis was at all clearly defined or established. This is in part because her consultant, Dr Zandi, explained in a letter dated 28 October 2024 that, as of that time ‘She continues to experience occasional paraesthesias in her lower limbs and her left lateral finger, which are exacerbated with work related stressors which has been a particular point in issue….She has had no new acute neurological issues in this intervening period [since the claimant’s dismissal in June 2024] and this does appear to have certainly been monophasic in keeping with GBS…this serious neurological condition requires time to recover from (but does not occur again)….From a neurological perspective nothing else needs to be done at present.’ Further reasons to find that the GBS’ prognosis was not clearly defined to established include that the claimant’s GP records, on the basis of a letter dated 13 June 2025, record her GBS as starting on 15 June 2023 and ending on 11 November 2023.

[68]In relation to GBS, it was accepted by the respondent that the claimant had the impairment from 8 June 2023. I therefore find accordingly.

[69]The respondent also accepted that the claimant’s GBS had a substantial impact on her day-to-day activities between June 2023 and November 2023. I find accordingly. This finding is supported by the claimant’s impact statement to the extent that it is corroborated by the documented position. I consider, and find, that the claimant’s GBS in fact had a substantial impact on her day-to-day activities until December 2023. This is because I accept that she continued to have tingling in her finger, accepting her clear oral evidence of this under cross-examination, and that this made it more difficult for her to type. Typing is a day-to-day activity and there are frequent references to finger tingling in her medical records. I find that it is more likely than not that the only reason this does not feature more (or later) in the documented position is because she was not at work due to illness or suspension after that point. However, this does not mean that her condition was not affecting a day-to-day activity. I also find that her GBS was affecting her day-to-day activities in the same way by 3 May 2024. Whilst the GPs fit note is plainly unsatisfactory on its face – the cause being included at the claimant’s request rather than because of a proper assessment – I accept that when the claimant reported to her GP on 3 May 2024 that by that date she had sleep disturbances, tingling fingers, and stiff muscles, her condition had returned such that it was having a clear impact on her day-to-day activities as it was before. She was also assessed as unfit to work soon after.

[70]Having ascertained when the claimant’s GBS was having a substantial impact on her day-to-day activities, I must then assess whether, and if so when, the effects of her GBS were likely to last for at least 12 months. In accordance with my findings above, the evidence on this is that her condition varied in its effects and there were many stages when it was clearly improving. In those circumstances I do not consider it sufficiently evidenced that the effects were likely to last for 12 months or more from the outset. Also, the condition is described as monophasic by her consultant and it was a condition that requires time to recover from but does not occur again. Taking everything into account, there is insufficient evidence from which I could properly find the effects were likely to last for 12 months or more from the outset or during the earlier phases.

[71]The claimant’s condition having returned sufficiently to be having a substantial effect on her day-to-day activities by 3 May 2024, however, by that stage I find that I can reasonably and properly infer that the effects were likely to last for at least 12 months. This is because it was sufficiently clear at that point that this was not just a fluctuating condition. The effects of the condition had been on and off for nearly a year to varying degrees. If I ask myself at which point the continuation of the effects could well happen, I am satisfied by that stage there was a sufficient body of evidence that this was the case. However, I am not satisfied that the long term test was met (in any way) before that point, in particularly because of how the condition is assessed and described by Dr Zandi.

[72]I have expressly considered whether the condition should be treating as continuing to have a substantial effect on day-to-day activities because its effects likely to recur such that the long term condition is met before the above date, however I do not find that there is sufficient evidence that this would be the case such that the claimant would be disabled by reason of GBS any earlier than the above.

[73]For the above reasons, Ms De Souza was disabled by reason of GBS from 3 May 2024.

[74]In terms of work related stress or stresses, I find that there are various mentions of this in the claimant’s documented records and evidence for the relevant time, including those set out above.

[75]However, I do not find that there is sufficient evidence that this claimed impairment was having a substantial impact on the claimant’s day-to-day activities (save as below). This is because there is insufficient evidence that this was the case. For example, by the end of August the claimant is recorded by psychology services in positive terms. Overall, the records of stress more broadly correlate with the claimant being suspended in November 2023 and the subsequent disciplinary process. Accordingly, I find that, taking the evidence as a whole, although the claimant did feel stressed at various points in the relevant period, this was situational and focussed on her work situation. This was also fluctuating. At most, the impact on day-today activities from stress appears to be some disrupted sleep and some of her periods of time off work. However, these again, on the evidence, are situational and work-related, and are not enough on their own for the claimant to fulfil the s.6 EQA test.

[76]I conclude that, overall, there is insufficient evidence that the claimant’s stress fulfils the long-term condition. It is not an inherently long term condition and, in the absence of other evidence, I do not find that any effects were likely to last for 12 months from the outset. This is in part informed by the work-related nature of her stress, which was just as likely to resolve at any time. There is also no other point at which I could safely find that there is evidence that the claimant’s stress was likely to last for 12 months or more. This is because of a lack of clear evidence on this point, or any other stage where I could sensibly draw the necessary inference form other facts. It is clear from the evidence that the claimant found the grievance process, suspension and dismissal stressful. However, there is insufficient evidence that at any stage the effects of this stress were likely to last for 12 months, adopting the correct legal definition above.

[77]On the evidence, the claimant is also not assisted by paragraph 2(2) of

[78]Whilst I accept that in principle work-related stress can be an impairment for the purposes of s.6 EQA, I do not find that, overall, the evidence in this case is sufficient for this to amount to a mental impairment. This is because there is insufficient material about the impact of stress on the claimant’s day-to-day activities and whether the effects were long term such that I could infer that there must be such an impairment. Rather, I consider that to the extent the claimant did suffer some work-related stress, and she did have some disrupted sleep and time off work, this was not sufficient to amount to an impairment, as opposed to an adverse reaction to events at work. The medical evidence about the claimant’s stress places it firmly in this category as opposed to a mental health impairment.

[79]I therefore conclude that the claimant does not meet the impairment or long term conditions in respect of work-related stress or stressors.

[80]For the above reasons, Ms De Souza was not disabled by reason by workrelated stress or stressors at the relevant times. Approved by