Mr T Allan v Churchill Retirement Living Ltd: 2302208/2020 and 2302349/2021

EMPLOYMENT TRIBUNALS

Case No 2302208/2020, 2302349/2021

Between

Mr T AllanClaimant

Churchill Retirement Living LimitedRespondent

Before

Employment Judge Abbott

Ms H Platt (instructed by Counsel) for claimant

Mr S Wyeth (instructed by Counsel) for respondent

Date 20 October 2021

JUDGMENT

[1]The complaint of detriment because of protected disclosures is dismissed following a withdrawal by the claimant. The claimant’s remaining claims will proceed. A decision regarding the costs of the withdrawn part of the claim is reserved _____________________________ Employment Judge Abbott Date: 22 July 2021

[2]Case Numbers: 2302208/2020 and 2302349/2021 1 EMPLOYMENT TRIBUNALS BETWEEN Claimant Respondent Mr T Allan AND Churchill Retirement Living Limited OPEN PRELIMINARY HEARING HELD BY CVP ON 20 and 21 September 2021 EMPLOYMENT JUDGE TRUSCOTT QC Appearances For the Claimant: Ms H Platt of Counsel For the Respondent: Mr S Wyeth of Counsel JUDGMENT on PRELIMINARY HEARING The claimant has not established that he was disabled on account of high blood pressure and/or anxiety and depression at the relevant time in accordance with section 6(1) of the Equality Act.

REASONS

[1]At a preliminary hearing on 19 March 2021, this Open Preliminary Hearing was listed to address whether the claimant is disabled in terms of the Equality Act in respect of high blood pressure and/or anxiety and depression. A more detailed list of issues for this hearing was agreed between the parties and is set out at paragraph 4. The respondent accepted that the claimant is disabled by reason of his back condition and that the respondent knew about this condition at the material time and from May 2019.

[2]Other matters for consideration at this hearing have been dealt with in Case Management Orders which have been issued separately. Case Numbers: 2302208/2020 and 2302349/2021 2

[3]The claimant was represented by Ms H Platt, barrister. He confirmed that his disability impact statements [1-11, 34-41 and 42-44] constituted his evidence. The respondent was represented by Mr S Wyeth, barrister. Both counsel made submissions to the Tribunal, the legal submissions made by Mr Wyeth were accepted as legally accurate and applicable by Ms Platt. Ms Platt provided written submissions in addition to her oral submission. There was a bundle of documents to which reference will be made where necessary. The references in this judgment are to page numbers in the electronic bundle.

[4]Issues for this hearing Was the Claimant disabled at the material time pursuant to section 6 Equality Act 2010 by reason of: high blood pressure; mental health condition of anxiety and depression. More specifically at the material times stated below: were these conditions impairments? did either impairment separately or cumulatively have a substantial adverse effect on the Claimant’s ability to carry out normal day-to-day activities? If so, is that effect long term? In particular when did it start and has it lasted or was it likely to last at least 12 months? What measures were being taken to treat the impairments and but for those measures would the impairment be likely to have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities? The Claimant says the material time in respect of his said disability of high blood pressure is January 2020 to his dismissal on 8 April 2021. The Claimant says the material time in respect of his said disability of anxiety and depression is January 2020 to his dismissal on 8 April 2021. It is accepted that the Respondent had knowledge of the Claimant’s conditions: high blood pressure since November 2019; and anxiety and depression since November/December 2019.

[5]In relation to his high blood pressure, the claimant relies on the following as part of his evidence: Date Event Page (pdf) 1989 Hypertension 65 6.04.1989 Hypertension 80 12.04.1989 Hypertension 69 22.01.2004 Angina 61 23.01.2004 Chest pain on mild exertion / moderate exercise 84 Case Numbers: 2302208/2020 and 2302349/2021 3 28.01.2004 Hypertensive disease 60 13.02.2004 Tensipine MR causes reduction in blood pressure Hypertension 59 7.04.2004 Chest pain on moderate exercise 83 27.05.2004 Tensipine MR causes reduction in blood pressure 59 16.08.2004 Tensipine MR causes reduction in blood pressure 64 15.06.2007 Tensipine MR causes reduction in blood pressure 57 18.10.2007 Tensipine MR causes reduction in blood pressure 57 20.11.2007 Tensipine MR causes reduction in blood pressure 57 28.03.2008 Tensipine MR causes reduction in blood pressure 56 25.06.2008 Tensipine MR causes reduction in blood pressure 56 12.11.2008 Tensipine MR causes reduction in blood pressure 55 17.02.2009 Tensipine MR causes reduction in blood pressure 55 18.06.2009 Tensipine MR causes reduction in blood pressure 54 19.08.2009 Tensipine MR causes reduction in blood pressure 54 16.10.2009 Tensipine MR causes reduction in blood pressure 54 23.10.2009 Tensipine MR causes reduction in blood pressure 54 15.12.2009 Tensipine MR causes reduction in blood pressure 53 22.12.2009 Tensipine MR causes reduction in blood pressure 53 16.03.2010 Tensipine MR causes reduction in blood pressure 53 4.06.2010 Tensipine MR causes reduction in blood pressure 53 27.08.2010 Tensipine MR causes reduction in blood pressure 52 12.10.2010 Tensipine MR causes reduction in blood pressure 52 2.12.2010 Tensipine MR causes reduction in blood pressure 52 15.12.2010 Tensipine MR causes reduction in blood pressure 52 Case Numbers: 2302208/2020 and 2302349/2021 4 11.02.2011 Tensipine MR causes reduction in blood pressure 51 2013 been looked after by Dr Patel. History of hypersensitive heart disease – heart muscle has maladapted secondary to blood pressure 24 5.12.2013 Letter Kent and Canterbury Hospital – uncontrolled hypertension 62 20.05.2014 Tensipine MR causes reduction in blood pressure 181 22.05.2014 C seen by Dr Nicholas Moran, Consultant Neurologist 129 12.05.2017 Tensipine MR causes reduction in blood pressure 50 26.06.2017 Tensipine MR causes reduction in blood pressure 50 1.08.2017 Tensipine MR causes reduction in blood pressure 50 15.11.2017 Hypertens monitor 50 13.12.2017 Make appointment for a BP check 50 30.10.2019 Nifedipine 49 7.11.2019 Blood pressure reading 139/89. Hypertension. Nifedipine is a medicine used to treat high blood pressure. 49 17.02.2020 Referred to Dr Patel, warrants further assessment in light of blood pressure and clinical profile 87 16.03.2020 Med 3 – blood pressure – not fit for work 132 19.03.2020 Dr Patel appointment – shows hypertensive changes 89; 133 13.01.2021 Dr Patel – stress and anxiety negatively impact on blood pressure control 98 12.02.2021 Dr Patel, change meds - Olmesartan 100 2.06.2021 Dr Patel appointment – BP high – not quite there with reducing BP 159

[6]In relation to his anxiety disorder / depression, the claimant relies on the following as part of his evidence: Date Event Page (pdf) 3.09.1982 Anxiety. Very depressed 70 6.09.1982 Depressed 69 Case Numbers: 2302208/2020 and 2302349/2021 5 15.08.1986 Depressed 69 19.08.1986 Psychiatric care – admitted in emergency ward 79 8.02.1995 Counselling 81 14.02.2000 Medical report Dr Sharmala Moodley Panic attacks, anxiety disorder 71 28.02.2000 Seeing counsellor, concentration still bad. Anxiety disorder. 67 15.01.2001 Seeing Dr Paul Mallett, consultant psychiatrist 68 28.01.2001 Anxiety Depressive illness 68 22.03.2001 Seeing Dr Paul Mallett, consultant psychiatrist 66 22.05.2014 Amitriptyline (drug for anxiety and depression). Trial of Pregabalin (used to treat anxiety) 63 20.04.2017 Stress at work related – patient has made appointment with consultant psychiatrist who he has seen several years ago (Dr Mallett) 50; 175 20.02.2020 Feels bullied exhausted and harassed. Idea self harm, asking for counselling 167 16.03.2020 Med 3 - work related stress – not fit for work 132 16.03.2020 Work related stress 167 28.04.2020 Work related stress 166 June 2020 Seen by Dr Mallett as escalating work difficulties, - over arousal and anxiety – blood pressure gone up. Further psychological treatment 157 20.10.2020 Work related stress GP entry 164 January 2021 Seen by Dr Mallett – range of depressive symptoms and anxiety and clear that focus and concentration were affected. CBT recommended. 157 4.03.2021 GP entry – stress – sleep hygiene given and avoid caffein 161 10.03.2021 Dr Mallett – anxiety is escalating and sleep disturbed 104 21.04.2021 Dr Mallett – issues with sleep and anxiety 156 26.04.2021 Dr Mallett letter 157

Findings

[1]On 14 February 2000, Dr Moodley summarises the claimant’s then mental health condition saying that his condition is likely to be short lived [69]. Up until 22 March 2001, the claimant is recorded as having a number of episodes of depression. The causes are noted in the medical records [63-67]. Case Numbers: 2302208/2020 and 2302349/2021 6

[2]On 23 January 2004, the claimant was referred to the rapid access chest pain clinic [81]. The claimant commenced medication for high blood pressure on 27 May 2004 [56]. This is a different date to that provided by the claimant’s counsel which was 13 February 2004.

[3]The medical notes for 8 August 2014 narrate: “Medication requested He would like amitriptyline added to repeat prescription. Takes for migraine.”

[4]On 20 April 2017, the claimant is noted a suffering stress at work [172]. He was employed by the respondent from 2 October 2018 until 8 April 2021 as a sales executive at its Maidstone site.

[5]At paragraph 2 of his first impact statement [1], the claimant says, in relation to his back: “f. More generally, my movement is restricted, and at times painful, which does impact on all day to day activities. g. I take medication for pain management and, on advice, attend pilates, yoga and fit classes.”

[6]At paragraph 3 [1] he says: “I have a history of hypertensive heart disease…This results in high blood pressure: I have to be careful with physical exertion: for example I cannot run up and down stairs.”

[7]At paragraph 4ii, he says he suffers from poor sleep [2]. In paragraph 8, he says that in October 2019 he had to lie down in the office because of his blood pressure [3].

[8]Paragraph 4 of the impact statement says the claimant has had anxiety since 2017. This was related to the breakup of a relationship [19].

[9]On 24 May 2019, the claimant is prescribed what is called a low dose of amitriptyline [for an issue which appears related to his back] [168]. He had previously been prescribed amitriptyline for migraine.

[10]On 7 November 2019, he self certified a 3-hour period of sick leave in order to see his GP.

[11]The claimant was seen as an outpatient on 2 January 2020 [26]. On 6 January 2020, Mr Jonathan Bull the consultant spine surgeon reported [26]: “I think it would not be unreasonable as per his suggestion to consider undertaking repeat injection…which gave him significant relief previously…”

[12]The claimant was signed off from 14 January to 11 February 2020 with back pain awaiting facet joint injections [10] and did not return to work thereafter.

[13]On 27 January 2020, he had a facet joint injection [30]. His next certificate was from 11 February 2020 to 16 March 2020 with back pain under specialist undergoing facet joint injections. Case Numbers: 2302208/2020 and 2302349/2021 7

[14]On 20 February 2020, the GP notes show history low mood …idea self harm [164]. The reference to work related stress first arises in this discussion.

[15]On 6 March 2020, according to the claimant’s ET1 [305] at paragraph 3.44 while the narrative is not entirely clear the ambulance crew referred him to hospital. This is not shown on the relevant page of the GP records [164] nor in the GP letter dated 19 March 2020 [86].

[16]On 12 March 2020, Mr Jonathan Bull, wrote [31]: I saw Mr Allan in outpatient at The Shard on 12th March 2020. He has been doing well in terms of his lower back pain, although he still has some pain, which is particularly exacerbated by episodes of driving, which again sounds musculoskeletal in nature, but he has made some improvements following the injections and undertakes regular exercises, but he has not seen any physio at present as he has sufficient experience to undertake things independently. I am delighted with his progress, although I think he will need a phased return to work given the persistent nature of this pain and its intrusion into his activities of daily living and I think this is in hand with an occupational health assessment.

[17]The medical certificate from 16 March 2020 to 27 April 2020 narrates cardiology-high blood pressure, work related stress and recovery from facet joint injections [12].

[18]On 15 April 2020, the claimant appears to make no mention of work-related stress to his GP [164] but on 24 April 2020 he requests a 3-month medical certificate due to cardiology issues and stress [163]. The GP is only prepared to issue a certificate for a month unless the cardiologist says otherwise. It is not clear why but the GP extends the length of the certificate to 20 July so from 27 April 2020 to 20 July 2020 the certificate narrates work related stress, under cardiology, high blood pressure.

[19]On 20 July 2020, the claimant emailed his GP [102] as follows: “I'm just emailing in for your attention as I'm not sure whether or not you are doing appointments. My current doctors certificate that you did for me on the 28th of April for three months from the 27th of April to the 20th of July expires today. l am still under the care of Dr Paul Mallett consultant psychiatrist, regarding the effects of work related stress & bullying and am undergoing another counselling session on Tuesday the 31 July. l am awaiting to see Dr Patel, Cardiologist at the BMI Blackheath Hospital now that I believe it has reopened regarding my blood pressure.”

[20]The claimant is provided with a medical certificate for 20 July 2020 for 3 months narrating work related stress, under cardiology, blood pressure recovering from spinal and orthopaedic treatment and surgery [15]. On 20 October 2020 his GP notes that “…has taken work to court due to work related stress and tribunal is not for 5-6 months and unable to work because of this.” [161]. The certificate provided on 20 October 2020 for 6 months narrates work related stress, under cardiology consultant for blood pressure, recovering from spinal and orthopaedic treatment and surgery. Case Numbers: 2302208/2020 and 2302349/2021 8

[21]On 13 January 2021, Dr Patel wrote [95]: “To recap. he has a history of hypertensive heart disease where his heart muscle has maladapted secondary to blood pressure. I have looked after him since 2013.”

[22]On 13 January 2021, Dr Mallett said [16-17] that: “He contacted me because of an escalation in his background physical health problems, mainly high blood pressure and spinal pain and ongoing difficulties in the work situation in that he had attempted to put some distance between him and his HR Department as far as direct communication was concerned. but he indicated they have continued to contact him directly to a degree that he considered harassing and needed to involve the police… Symptomatically he has poor sleep. constant ruminations about the work situation, associated poor concentration and persistent tiredness. He is anxious and angry at the thought of returning to work to the extent that he considers it would be easier to talk to a complete stranger about his personal problems, than anyone in his work environment. I consider from discussing this with him that he would simply be too overwhelmed. aroused. angry and anxious to return to his previous employers at the current time…The diagnosis therefore is one of a generalised anxiety state with some phobic anxiety features in relation to returning to the specific work place. I am optimistic that with resolution of the difficulties with his current employer and with the continued support of Steve Lynch. he will be able to resolve his anxiety symptoms without the need for long term psychological treatment or medication…”

[23]The GP notes for 21 January 2021 record [159]: Medication Amitriptyline 25mg tablets One To Be Taken Each Day 28 tablet

[24]On 6 February 2021, Dr Patel wrote [147]: “His echocardiogram shows that his heart is structurally and functionally unremarkable with no left ventricular hypertrophy now and normal left atrial size.”

[25]On 10 March 2021, Dr Mallett reported seeing the claimant and makes reference to him being stressed in relation to tribunal proceedings [101].

[26]On 19 April 2021, the claimant requested a 6 month medical certificate [102]: “I'm contacting you regarding the email that sent to you. I'm on Mirtazapine & Olmersatan. I’ve a consultation with Dr Mallett 21/4/21 & Dr Patel May I'd like my doctor certificate to include latest diagnosis from Dr Mallett:- Depression anxiety, work related stress. Awaiting Facet Joint Injection. Under Cardiologist for Blood Pressure. I’m having further facet joint injection Jonathan Bull consultant neurosurgeon at London Bridge Hospital end of May.”

[27]On 21 April 2020, Dr Mallett noted some improvement in the mood of the claimant [39] and said: Case Numbers: 2302208/2020 and 2302349/2021 9 “…he should have no problems with his day to day functioning or self- care and certainly his capacity to make day to day decisions is not affected, but he is likely to struggle with high level or demanding situations that require for example, multitasking and decisiveness by virtue of his depressive symptoms, which have had an adverse impact on his concentration and motivation. These impairments are unlikely to last for more than 12 months accumulatively, as long as he stays away from the direct involvement with his difficult work situation. and as indicated above they do not affect his capacity to undertake normal day to day activities.” Relevant Legal Framework

[28]A person with hypertension is not deemed to be disabled under paragraph 6, Part 1 of Schedule 1 to the Equality Act 2010 (EqA 2010) or the Equality Act 2010 (Disability) Regulations 2010, SI 2010/2128 and whether or not such a person has a disability will therefore be determined in accordance with the definition in EqA 2010, s 6(1), ie whether there is a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. This also applies to anxiety/depression.

[29]In these circumstances, disability has to be established in accordance with the provisions of section 6 of the Equality Act 2010 which are not repeated here. These provisions are analysed in great detail in Igweikw v. TSB Bank plc

[2020] IRLR 267

upon which analysis the Tribunal placed considerable reliance. This case was not referred to by counsel but was drawn to their attention by the Tribunal. The case refers to a number of authorities which were cited to the Tribunal. These are not repeated here.

[30]The essence of the enquiry to be carried out was summarised by Langstaff P in Aderemi v. London and South Eastern Railway Ltd

[2013] ICR 591

EAT: ‘It is clear first from the definition in section 6(1)(b) of the Equality Act 2010, that what a Tribunal has to consider is an adverse effect, and that it is an adverse effect not upon his carrying out normal day-to-day activities but upon his ability to do so. Because the effect is adverse, the focus of a Tribunal must necessarily be upon that which a Claimant maintains he cannot do as a result of his physical or mental impairment. Once he has established that there is an effect, that it is adverse, that it is an effect upon his ability, that is to carry out normal day-to-day activities, a Tribunal has then to assess whether that is or is not substantial. Here, however, it has to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other’. (paragraph 14, p 591).

[31]A number of additional points arise. If an impairment is being treated or corrected, the impairment is deemed to have the effect it is likely to have had without Case Numbers: 2302208/2020 and 2302349/2021 10 the measures in question (EqA 2010 Sch 1 para 5). Faced with evidence of medical treatment, the tribunal has to consider how the claimant's abilities had actually been affected at the material time, whilst being treated, and then to decide the effects which they think there would have been but for the treatment. The question is then whether the actual and deduced effects on the claimant's abilities to carry out normal day-to-day activities are clearly more than trivial (see Goodwin v. The Patent Office

[1999] ICR 302

, per Morison J). Sussex Partnership NHS Foundation Trust v. Norris

UKEAT/0031/12

, concerned the correct approach to the proper consideration of ‘deduced effects’ of an impairment disregarding medical treatment. The claimant had a physical impairment of Selective IgA Deficiency, a defect of the immune system rendering her susceptible to recurrent infections, but not in itself having any effect on her ability to carry out normal day to day activities. Medication was prescribed to prevent her from getting infections. Absent medication she would be more susceptible to infection. Slade J stated (at para 40) that the EqA: 'requires a causal link between the impairment and a substantial adverse effect on ability to carry out normal day to day activities. In many cases that link will be direct. However in our judgment the EqA does not require that causal link to be direct. If on the evidence the impairment causes the substantial adverse effect on ability to carry out normal day to day activities it is not material that there is an intermediate step between the impairment and its effects provided there is a causal link between the two'. In this case, the EAT said that the ET ought to have asked whether the deduced effect of the claimant's impairment, of suffering more frequent infections, would itself have a substantial adverse effect on her ability to carry out normal day to day activities.

[32]In Woodrup v. London Borough of Southwark

[2003] IRLR 111

CA, Miss Woodrup claimed that if her medical treatment for anxiety neurosis were to stop, her condition would deteriorate and she would be a 'disabled person' for the purposes of the DDA. The Court of Appeal, upholding the decision of the employment tribunal, was of the view that she had not done enough to prove that stopping her treatment would have the relevant adverse effect. The CA made a point of emphasising the 'peculiarly benign doctrine under para 6' and Simon Brown LJ commented 'In any deduced effects case of this sort the claimant should be required to prove his or her alleged disability with some particularity. Those seeking to invoke this peculiarly benign doctrine under para 6 of the schedule should not readily expect to be indulged by the tribunal of fact. Ordinarily, at least in the present class of case, one would expect clear medical evidence to be necessary'.'

[33]‘Treatment' can include counselling with a qualified professional: Kapadia v. London Borough of Lambeth

[2000] IRLR 699

CA.

[34]In McDougall v. Richmond Adult Community College CA

2008 ICR 431

CA, the Court of Appeal confirmed that the employment tribunal should have determined whether the impairment existed at the time of the acts of alleged discrimination and in All Answers Ltd v. W and anor

[2021] EWCA Civ 606

CA, the Court of Appeal held that an employment tribunal erred in failing to consider whether the adverse effect of a disability discrimination claimant’s mental impairment was likely to last for at least 12 months as at the date of the alleged discriminatory acts. The tribunal is not entitled Case Numbers: 2302208/2020 and 2302349/2021 11 to have regard to events occurring after the date of the alleged discrimination to determine whether the effect was likely to last for 12 months. The Court of Appeal allowed the appeal, confirming that following McDougall, the key question is whether, as at the time of the alleged discriminatory acts, the effect of an impairment has lasted or is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts and the tribunal is not entitled to have regard to events occurring later.

[35]In Elliott v. Dorset County Council

UKEAT/0197/20

, the EAT held that the ET did not sufficiently identify the day-to-day activities, including work activities, that the claimant could not do, or could only do with difficulty, to found a proper analysis. Discussion and decision

[36]The Tribunal noted that the parties agreed the issues for the hearing which confirm that there should be concentration on the evidence of disability at the “material time” which was also specified however, the oral submission for the claimant was that he qualified as a disabled person at an earlier stage and remained disabled. The Tribunal noted this submission as relating to depression and considered the evidence in that regard in addition to the identified issues.

[37]The evidence for the claimant was provided by his disability impact statements, some supplementary questions, the answers to cross examination questions and re-examination. The respondent attacked the credibility of the claimant. The Tribunal did not consider his evidence to be reliable for reasons set out later.

[38]It was repeated several times that the claimant has to establish disability and it is a low threshold. The Tribunal kept these mantras in mind as it tried to gain an understanding of the past and recent medical history of the claimant. The Tribunal was aware that it should consider the evidence relating to hypertension and anxiety separately but also together. It also seemed to the Tribunal that it should not ignore the evidence relating to the claimant’s back issue notwithstanding that it was conceded by the respondent as a disability. Past disability

[39]In relation to anxiety and depression, the claimant claimed that disability had been established by the report from Dr Moodley of 14 February 2000 [68] which shows a good prognosis in relation to the panic attack he was experiencing. It was submitted that things did not turn out that way by reference to a note on 28 July 2001, referring to the claimant having anxiety and depression [65] from which it could be concluded that the effect was long term. However, the GP note of 15 January 2001 [65] makes reference to a court hearing, a stressful event. The Tribunal did not consider that these entries without more was sufficient evidence to establish that the claimant had a mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities

[40]It was submitted that the prescription for amitriptyline on 22 May 2014 together with his trial of pregabalin and his self referral to Dr Mallett on 20 April 2017 were Case Numbers: 2302208/2020 and 2302349/2021 12 relevant. While the Tribunal accepted that amitriptyline is an anti-depressant and pregabalin was prescribed [60], it did not accept the claimant’s submission that the latter was for anxiety, it seems to have a wide range of uses including pain relief which might have been related to back pain as indeed does amitriptyline which was prescribed in relation to his back. The Tribunal accepted that the claimant had received counselling but did not consider that such evidence as there was of this added anything to the consideration. Impairment at the material time commencing in January 2020

[41]Counsel for the claimant submitted that high blood pressure, hypertension and hypertensive heart disease were all one and the same. The Tribunal was not confident of this in that control of high blood pressure/hypertension is effected by a drug which relaxes and expands the blood vessels. The effect of the drug is to reduce the high blood pressure which if it was allowed to persist might result in damage to the health of the patient. Hypertensive heart disease, as described by Dr Patel, in paragraph 20 hereof, might suggest that some damage has already been done to the claimant. However, the contents of Dr Patel’s report, set out at paragraph 24 hereof, indicates otherwise. On the basis of the available evidence, the Tribunal is unable to find that there is an impairment.

[42]The claimant’s evidence narrated at paragraphs 5 and 6 attribute the impact on normal day to day activities to high blood pressure. There is reference in the medical records which are not specifically identified here to diet and lifestyle advice in order to reduce his weight which would reduce his blood pressure. If this evidence is taken into account, the impact may not be because of his high blood pressure. Additionally, he is noted as carrying out exercise for his back without difficulty. The Tribunal did not ignore the subsequent events of referral to the chest pain clinic but concluded that it did not have the evidence to determine that the claimant’s hypertension was a physical impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. The Tribunal is not in a position to say what the position of the claimant would have been had he not taken the drug Tensipine or equivalent over the years.

[43]The Tribunal considered the evidence in relation to anxiety and depression and what was said in Herry v. Dudley Metropolitan Council (set out at paragraph 42 of Igewige) in relation to stress. The medical evidence is contained in the fitness to work notes dated 16 March 2020 and 20 July 2020 which refer to “work related stress and anxiety”. The Tribunal did not accept that these fit notes alone were sufficient to establish that he had a mental impairment the effect of which was substantial. The medical certificates, after 14 January 2020, were obtained when the claimant was not at work. While he explained why he had work related stress when he was off work, the Tribunal had difficulty in accepting his evidence. The Tribunal also noted that the fitness to work notes narrate work related stress because that is what he reported. Indeed, in relation to the 19 April 2021 request for a medical certificate, he sets out a diagnosis of Dr Mallett which is not discernible from the letters of Dr Mallett.

[44]The fact that the absence is described as work related would ordinarily indicate that it is likely that it will cease upon the claimant not attending work and not at all likely Case Numbers: 2302208/2020 and 2302349/2021 13 that it would last 12 months or longer. The Tribunal was unable to conclude that the claimant had a mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities

[45]Considering both high blood pressure and anxiety together, the Tribunal got no further in its deliberative process. The certificate provided on 20 October 2020 for 6 months narrates work related stress, under cardiology consultant for blood pressure, recovering from spinal and orthopaedic treatment and surgery. In relation to Dr Mallett’s report dated 13 January 2021, it is not clear from this that Dr Mallett understands that the claimant has not been at work for about a year.

[46]The Tribunal noted the evidence about the claimant’s back issues and could understand, from a common-sense perspective, how this might impact hypertension and anxiety, however the Tribunal was not in a position to draw any conclusion other than the submission by the claimant’s counsel that hypertension and anxiety were circular was not correct because it left out of account back pain. Neither counsel spent any time on the effects of the claimant’s back problems presumably because disability on this ground was admitted but the consequences of the back problems and the impact on the claimant’s day to day activities are substantial and have to be understood in order to identify what effect is attributable to which potential disability.

[47]The Tribunal considered the period of absence because of back pain from 14 January 2020 to 16 March 2020. This is a lengthy absence if the facet joint injections have been effective and, if not, the absences are indicative of serious back problems which would be expected to impact substantially on day to day activities. The Tribunal reminded itself of what Dr Bull had said on 12 March 2020, set out at paragraph 15 hereof. It found itself unable to identify the effect of either high blood pressure or anxiety or both on the claimant when there is such a substantial effect from the back pain.

[48]The Tribunal has concentrated on the high blood pressure, anxiety and spinal issues but the medical records show that the claimant has a more complicated medical history than solely those issues and it might have been that those issues impacted one or more of the matters the Tribunal is considering.

[49]In Igweike, at paragraph 36, the EAT narrates the contents of paragraph 38 in J v. DLA Piper EAT, it continues and sets out that (at paragraph 41 of DLA): “We have to rely primarily on the inference that can be drawn from such medical evidence as there is, together with the Guidance and the case law and the general knowledge acquired from our own experience of depressive illness in the field of employment law and practice.” This Tribunal has long experience in this area and is not in a position to compare itself with the depth of experience of the Tribunal in DLA but this Tribunal tended to the view that the outcome of a claim should not be dependent on the knowledge a Tribunal brings to the issue of depressive illness, the evidence should be adduced and be comprehensible by any Tribunal in order to provide a basis upon which to draw an inference. The Tribunal considered that it would have benefited from an analysis of the records by a medically qualified person. The respondent proposed this but the claimant did not agree. The respondent’s application to the Tribunal for Case Numbers: 2302208/2020 and 2302349/2021 14 such a report was rejected for reasons this Tribunal is unaware of. The claimant was content that this issue was determined on the basis of the available evidence.

[50]The Tribunal found that the claimant had not established that he was disabled because of hypertension and/or anxiety/ depression. It considered that what was said at paragraph 50 of Igweige was apposite to this case, as it was for the claimant to establish disability, it was his obligation to provide such evidence to establish the disability or disabilities claimed. EMPLOYMENT JUDGE TRUSCOTT QC Date 20 October 2021 Case Nos: 2302208/2020 2302349/2021 1 THE EMPLOYMENT TRIBUNAL SITTING AT: LONDON SOUTH BEFORE: EMPLOYMENT JUDGE TRUSCOTT QC BETWEEN: Mr T Allan Claimant AND Churchill Retirement Living Limited Respondent ON: 21 February 2022 Appearances: For the Claimant: Ms H Platt of Counsel For the Respondent: Mr S Wyeth of Counsel JUDGMENT upon RECONSIDERATION

Findings

[1]The Tribunal grants the application for reconsideration of its judgment dated 15 November 2021.

[2]The Tribunal affirms its judgment dated 15 November 2021.

[1]By way of a letter dated 29 November 2021, the claimant made an application for a reconsideration of the decision and reasons of this Tribunal dated 20 October 2021 sent to the parties on 15 November 2021.

[2]Any application for the reconsideration of a judgment must be determined in accordance rules 70 to 74 of the Employment Tribunal Rules of Procedure 2013. Rules

[3]The relevant Employment Tribunal rules for this application read as follows: RECONSIDERATION OF JUDGMENTS Principles 70. A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Application 71. Except where it is made in the course of a hearing, an application for reconsideration shall be presented in writing (and copied to all the other parties) within 14 days of the date on which the written record, or other written communication, of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent (if later) and shall set out why reconsideration of the original decision is necessary. Process 72.—(1) An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked (including, unless there are special reasons, where substantially the same application has already been made and refused), the application shall be refused and the Tribunal shall inform the parties of the refusal. Otherwise, the Tribunal shall send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the views of the parties on whether the application can be determined without a hearing. The notice may set out the Judge’s provisional views on the application.

(2) If the application has not been refused under paragraph (1), the original decision shall be reconsidered at a hearing unless the Employment Judge considers, having regard to any response to the notice provided under paragraph (1), that a hearing is not necessary in the interests of justice. If the reconsideration proceeds without a hearing the parties shall be given a reasonable opportunity to make further written representations.

(3) Where practicable, the consideration under paragraph (1) shall be by the Employment Judge who made the original decision or, as the case may be, chaired the full tribunal which made it; and any reconsideration under paragraph (2) shall be made by the Judge or, as the case may be, the full tribunal which made the original decision. Where that is not practicable, the President, Vice President or a Regional Employment Judge shall appoint another Employment Judge to deal with the application or, in the case of a decision of a full tribunal, shall either direct that the Case Nos: 2302208/2020 2302349/2021 3 reconsideration be by such members of the original Tribunal as remain available or reconstitute the Tribunal in whole or in part.

[4]In accordance with rule 70, a TTribunalribunal may reconsider any judgment “where it is necessary in the interesintereststs of justice to do so”. On reconsideration, the decision may be confirmed, varied or revoked. If it is revoked, it may be taken again.

[5]The case authorities remind Tribunals that there is no automatic entitlement to reconsideration for any unsuccessful party. On the contrary, there is an underlying public policy principle in all proceedings of a judicial nature that there should be finality in litigation. Reconsideration of a judgment should be regarded as very much the exception to the genegeneralral rule that Tribunal decisions should not be reopened and relitigated. In reference to the antecedent review provisions, iinn Stevenson v. Golden Wonder Ltd

[1977] IRLR 474

EAT, Lord McDonald said that the (exceptional) process was ‘not intended to providprovidee parties with the opportunity of a rehearing at which the same evidence can be rehearsed with different emphasis, or further evidence adduced which was available before’.

[6]When dealing with the question of reconsideration, a Tribunal must seek to give efeffectfect to the overriding objective to deal with cases ‘fairly and justly’. The Tribunal should also be guided by the common law principles of natural justice and fairness. Her Honour Judge Eady QC (as she then was) gave guidance as to the approach to be taktakenen iinn Outasight VB Ltd v. Brown [2015] ICR D11 EAT. Although a tribunal’s discretion can be broad, it must be exercised judicially “which means having regard not only to the interests of the party seeking the review or reconsideration, but also to the inteinterestsrests of the other party to the litigation and to the public interest requirement that there should, so far as possible, be finality of litigation”.

[7]Earlier guidance as to the approapproachach ofof TTribunalsribunals to the matter of reconsideration remains equally pertinenpertinent.t. In Trimble v. Supertravel Ltd

[1982] ICR 440

, the EAT made the following observations: 7.1. 7.1. it is irrelevant whether a tribunal’s alleged error is major or minor; 7.2. 7.2. what is relevant is whether or not a decision has been reached after a procedural mishap; 7.3. 7.3. sincsince,e, in that case, the tribunal had reached its decision on the point in issue without hearing representations, it would have been appropriate for it to hear argument and to grant the review if satisfied that it had gone wrong; 7.4. 7.4. if a matter has been ventilated and properly argued, then any error of law falls to be corrected on appeal and not by review.

[8]This Tribunal decided that it was appropriate to have a hearing as the application referred to a concession of impairment by the respondent of which the Tribunal was unaware and also disputed the narrative at paragraph 49 of the judgment which was based on the respondent’s submission.

[9]During the course of the reconsideration hearing, a letter dated 19 July 2021 containing the purported concession by the respondent was produced which states: “….we write to confirm that the Respondent does not concede that the Claimant’s high Case Nos: 2302208/2020 2302349/2021 4 blood pressure and/or anxiety and depression amounted to a disability… In any event, whilst the Respondent accepts that the medical evidence relied upon by the Claimant establishes him having both a physical and mental impairment it is the Respondent’s case that it does not evidence the fact that at the time of the alleged disability the impairment was substantial and/or had an adverse effect on his ability to carry out normal day to day activities.” This Tribunal was not aware of this letter.

[10]During the course of the reconsideration hearing, correspondence between the parties was produced concerning the dispute about which medical experts should be instructed to provide medical evidence to the Tribunal. In an email dated 19 July 2021, the respondent’s solicitor states: “It is the Respondent's position that there should he an agreed joint instruction of a totally independent medical expert”. In an email dated 1 August 2021, the claimant’s solicitors narrate: “The Respondent concedes that the Claimant’s high blood pressure and anxiety/depression are physical and mental impairments.” The email goes on to set out the disagreement between the parties as to who should provide the expert medical evidence and asked the Tribunal to make a determination. By email dated 11 August 2021, the claimant’s solicitors requested a postponement of the OPH listed for 20 and 21 September 2021. The Tribunal understands, but has not seen the letter, that the respondent’s solicitor agreed with the application to postpone the hearing. On 25 August 2021, the Tribunal wrote to parties as follows: “The Claimants medical conditions are not complex, and the Tribunal is not satisfied that expert evidence is necessary. If this was to be proposed, it shall have been raised at the case management hearing.” This Tribunal was not aware of the correspondence or that such an application had been made and refused.

[11]This Tribunal heard oral submissions from the claimant in support of the written application and written objections by the respondent together with oral submissions.

[12]This Tribunal addressed each of the points made by the claimant taking them individually and then cumulatively in consequence of its decision set out at paragraphs 9, 10 and 14. .

[13]In the preamble to the application, the claimant submitted that: I. Para 6 the tribunal has not considered the overall interplay between the Claimant's back condition, cardiology issues (hypertension, hypertensive disease and high blood pressure) and mental health conditions and on the effect of day to day activities and has ignored the unchallenged evidence from the Claimant that hypertension causes anxiety and vice versa. The The Tribunal considered the claimant’s pleaded case [217,217, 260 and 349] that he suffered with three disabilities namely: 1) chronic back condition 2) high blood pressure and 3) anxiety and depression. “CCardiologyardiology issues” or “hypertension” were not pled as disabdisabilitiesilities upon which he relies for the purposes of his claims aalthoughlthough these terms may have been used as shorthand. TThehe use of shorthand terms is not helpful in a situation where the Case Nos: 2302208/2020 2302349/2021 5 medical medical evidence is difficult to assess. At paragraparagraphph 41 of the original jujudgment,dgment, the Tribunal accepted that hypertension is probably synonymous with high blood pressure. As it was the Tribunal which was concerned with the interplay between the accepted and disputed disabilities when neither party had made any such submissions at the original hearing, the Tribunal proceeded on the basis that the emphasis in this point is on the effect on day to day activities. The Tribunal responds to the contentions in relation to the effect on day to day activities and the claimant’s evidence later. 2. Para 21 the tribunal has noted the history of hypertensive heart disease and Dr Patel's note that his heart muscle has maladapted secondary to blood pressure (13 January 2021) but not found that this was an impairment. NB the Respondent conceded that the conditions were "impairments". The tribunal has failed to note that the medical records show. He has undoubtedly endured a lot of stress in the last 12 to 18 months. This increased level of stress and anxiety, I am of the firm opinion, is counterproductive to his general health and wellbeing but more importantly from my perspective, will undoubtedly have a scientifically proven negative impact on his blood pressure control. He is on vitamin D and his Nifedipine preparation pending my advice for him to restart Ramipril. He is also on some low dose Naproxen for amusculoskeletal issue. I have advised him that I would like him to try and come off the Naproxen as soon as possible as soon as his other clinicians feel this is appropriate as it can affect blood pressure adversely. Th Thee TrTriibunalbunal set out the conclusion of Dr Patel at paragraph 21, it wawass aware of the full contents of Dr Patel’s’s letter but does not see the advantage in narrating it in full in its judgment. The Tribunal adheres to its finding in paragraph 24, that the heart condition would not add anything to the claimant’s assertion that high blood pressure was an impairment. 3. 3. Para 25 the tribunal has not noted the full reference to tribunal proceedings or noted that the Claimant was still employed until 8 April 2021. There There was no need for the TTribunalribunal to make any such reference. The Tribunal accepted the evidence that the claiclaimamantnt was employed until 8 April 2021 and that the material time was January 2020 to 8 April 2021 as set out in paragraph 4 of the original judgment. 4. 4. Para 28 the tribunal has referred to the Claimant as a person with "hypertension" only. The Claimant relied on his cardiology issues including hypertension, hypertensive disease and high bloobloodd pressure as a physical impairment. The The Tribunal proceeded on the basis that high blood pressure, hypertension and hypertensive disease were synonymous despite its misgivings expressed in paragraph 41 of the original judgment. ThThatat they were synonymous was repeated in submission by the claiclaimamant’snt’s counsel to this hearing. 5. 5. Para 37 the tribunal has found that the Claimant was not rereliableliable but has not said why or whether all of the Claimant's evidence was rejected despite noting that this would be explained "later". Case Nos: 2302208/2020 2302349/2021 6 The The respondent’s’s Counsel made it clear that he was attacking the claimant’s credibility and thus it was a significant feature in cross-examination.examination. It was put extensively that the claimant was exaggerating his conditions and their purported effects and his assertionassertionss were unsupported by the medical evevidence.idence. The Tribunal had the impact statement of the claiclaimamantnt and the Addenda which gave little information about the impact on day to day activities and their likely duration despite the fact that the claiclaimamantnt had the benefit of legal advice from the early stages of his claims. Paragraph 3 of the claiclaimamant’snt’s impact statement, states, in relation to high blood pressure, “I have to be careful with physical exertion..” and gives the example of going up and down sstairstairs. Paragraph 4 of the claimant’s impact statement addresses anxiety and says that he is isolated from others aandnd has poor sleep, poor concentration and persistent tiredness along with other matters. At paragraph 13, three specific eexxamplesamples are given where anxiety and high blood pressure are said to impact him. In answer to questions in cross examination, the claimant seemed unwilling to go beyond what was said in the impact statements in circumstances where additional information would have been of assistance to the Tribunal. The TTribunalribunal rejectrejecteded the claimant’s account of the impact of his conditions when weighed against the objective medical evidence that existed and, in particular, his evidence as to what impact was attributable to which impairment. It is not correct for the claiclaimamantnt to say that his evidence was not challenged on certain points in cross-examination, it was generally and specifically challenged aalthoughlthough the Tribunal might have invited the respondent to move on at certain popointsints of the cross examination as the essence of what was bebeinging putput waswas clear.clear. 6. 6. Para 39 the tribunal has noted that the Claimant's evidence showed a panic attack, which is a substantial impairment of a day to day activity but not found that the Claimant was disabled. The Claimant's impact statement and medical records show that this was not a one off event. The The judgment of the Tribunal ought to have referred to panic attackattackss. The TTribunalribunal reviewed’the claimant’s medical history dating back twenty years prior to the material time in these proceedings. The TTribunaribunall did not accept that an episode in the claimant’s life in 2000 somehow assisted in demonstrating that the impairment relied on in 2020 to 22021021 had a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. 7. 7. Para 40 the tribunal has failed to take into account the fact that the Claimant was taking amitriptyline and the impact that it may have had on hihiss mental health, even if it was prescribed for migraine despite noting that this is medication for depression. The tribunal has ignored that this is a medication that could have improved his mental health impairment from May 2014. This This submission was made at the original hearing. The Tribunal was not prepared to conclude (particularly in the absence of any medical evidence to support this proposition) that medication the claimant was taking for an unrelated impairment somehow alleviated the possible effecteffectss ofof anotheranother impairment.impairment. Case Nos: 2302208/2020 2302349/2021 7 8. 8. Para 40 the tribunal has accepted that the claimant received counselling but has ignored that this is "treatment" for the EqA 2010 Schl para 5 and that it should consider the impairment without medical treatment. The The Tribunal accepted such evidence as there was in relation to counselling but was unable to draw any conclusion from it. The claimant produced no medical evidence to demonstrate what the position would have been in the absence of any counselling as explained in Woodrup. 9. 9. At para 41 of the judgment, the tribunal has concluded that there was no impairment. The Respondent had already conceded that the Claimant's high blood pressure and mental health conditions did amount to impairments (which of course they mumust)st) and the only issue for the tribunal was whether they had a long term and substantial adverse impact on the Claimant's day to day activities as at January 2020 and beyond: see the Respondent's letter dated 21 (sic) July 2021, the agreed list of issues aandnd the oral closing submissions of the Respondent's Counsel on 15 September 2021. The The Tribunal was unaware of the concession. TThehe agreed list of issues [383-384] does not record that the impairments are conceded, nor did the issues agreed and identified for the purposes of the OPH indicate that to be the case. TThehe written submissions on behalf of the claimant rely on a proposition/assumption that the respondent acacceptscepts the claimant actually had those impairments because it says it had knowledge of them (paragraph 3 of the claimant’s submissions). All that appeared to be accepted was that these conditions had the potential to be impairments. The The TribunalTribunal considereconsideredd the terms of the letter dated 19 July 2021 and the email of 1 August 2021 and concluded that a concession had been made by the respondent or, at least, was being relied upon by the claimant and should have been brought to the attention of the Tribunal or, if there was a dispute, the dispute should have been raised with the Tribunal. The The evidence was so finely balanced that the Tribunal concluded that the concession together with the evidence available were sufficient to enable it to conclude that the claiclaimamantnt hadhad establishedestablished impaiimpairrmentsments of high blood pressure and anxiety/depression. 10. 10. At para 42 again the tribunal concluded that there was no physical impairment contrary to the medical evidence and to the concession re impairment from the Respondent made on 21 July 2021 in writing when setting out the scope of the challenge to disability, in the list of issues and also orally in closing submissions. There is also reference to the Claimant's diet and lifestyle and the tribunal appears to finfindd that restrictions on his physical ability as result of his blood pressure are undermined by the yoga and Pilates that he has been advised to undertake to treat his back problems. Neither form of exercise are strenuous. And would be in controlled conditioconditionsns withwith expertexpert instructorsinstructors.. The The Tribunal refers to what it says in the foregoing paragraph in relation to the concession. The Tribunal adheres to what it said about diet and lifestyle in the originaoriginall judgment.judgment. ThisThis Case Nos: 2302208/2020 2302349/2021 8 was was derived from the impact statement anandd the medical evidence and was addressing the impact on day to day activities and its attribution to an impairment. 1. Also at para 42 the deduced effect / impact of medication is ignored by the tribunal. The Claimant has been on medication for years. He is regularly tested, and his medications reviewed. The tribunal acknowledges the effects of medication at 541 yet has not found (SCA Packaging Ltd v Boyle (HL)) it is likely (could well happen) that without any treatment/medication the effects of the Claimant's hypertension/hypertensive maladapted heart muscle would be more pronounced. The claimant did not produce any evidence to demonstrate what the purported deduced effect was likely to be in the circumstances and the Tribunal was not prepared to speculate. 12. There is no consideration at all in the judgment of the impact on the claimant’s day to day activities.a. a. Blood pressure - the tribunal has failed to acknowledge the effect on the Claimant's day to day activities as set out in the evidence, including ththatat he could not run up and down a flight of stairs, feeling giddy, lightheaded and unwell from 2013 (52 impact statement) which was not challenged in cross examination.

b. Mental health - the tribunal has failed to acknowledge that the effect on the Claimant's day to day activities, from 2017 were as set out in 54 of his impact statement, which were not challenged in cross examination. The The Tribunal sought to address this in paragraphs 42 onwards in the judgment. Perhaps the Tribunal ought to have inserted a heading “impact on day to day activities”activities”.. In this section, the Tribunal also considered whether that effect was substantial. The TTribunalribunal concluded that it could not be satisfied on such evidence as it had from the claimant that what he described were effects arising from one or other of the disputed impairments. TThehe claimantclaimant supportedsupported ththee impact of high blood pressure by one tangible example of apparently being unable to run up and down stairs. The TTribunalribunal factorfactoreded in to its decision the contradiction in the claimant’s evidence that on the one hand he could undertake exercise to assist his back condition without difficulty despite his claim that he had to be careful with physical exertion. Indeed, ththereere is no evidence to explain why his back condition was/is not the reason why he was/is unable to run up and down stairs. SiSimmilarilar reasoningreasoning mightmight applapplyy to back pain and the cause of his sleep issues. The assertions the claimant made in his evidence about any impact on his ability to carry out day-to-day activities were limited and were not ones that he could demonstrate from the medical or other evidence to have arisen from the two impairments in dispute. It should not be overlooked that the Tribunal did nnotot findfind thethe claiclaimamantnt to be a credible and reliable witness. 13. At paras 43, 44 and 45: the tribunal's emphasis on "work related stress when he was off work" is ill conceived. The Claimant was employed until 8 April 2021. Up until that point he was having to communicate with his employer, deal with OH requests, requests for holidays etc, and of course the disciplinary proceedings. The tribunal has wrongly assumed (without evidence) that by being off work (ill) that the Claimant was able to Case Nos: 2302208/2020 2302349/2021 9 recuperate (and presumably isolate himself form the triggers causing the anxiety/depression). This cannot be right given the circumstances of this case. In In paragraphparagraph 43,43, thethe TTribunalribunal records that it had difficulty accepting the claimant’s evidence on this point. The narrative on the medical certificates provided no reliable analysis because, aass thethe TTribunalribunal found as fact, they reflected what the claimant himself reported and wanted the notes to say. Furthermore, the TTribunalribunal wawass critical of the claimant for the fact that in a request he made for a medical certificate he sets out “a diagnosis ooff Dr Mallett which is not discernible from the letters of Dr Mallett“.. Paragraph Paragraph 4444 explainsexplains thethe TTribunal’sribunal’s rationale for rejecting the claimant’s assertions about stress at work. It did not overlook that there might have been contact between the employeemployerr and the employee but considered the claimant’s evidence was grossly exaggerated. Even on the claiclaimamant’snt’s account, the impact of his anxiety/depression should have reduced considerably on the cessation of employment. In this paragraph, the Tribunal is seeking to address the likely timespan of any impact. In In relationrelation toto pparagrapharagraph 45,45, thethe TTribunalribunal did consider the interplay between the impairments of high blood pressure and anxiety and said so. Indeed, the Tribunal wenwentt beyond a comparison of the two disputed impairments and considerconsidereded the effects of the conceded disability of backpain (as explained in paragraphs 46 and 47).

[14]Para 49 the tribunal suggested that the Claimant did not agree to the Respondent's request for an expert. That is not correct. The Claimant wanted to instruct his treating clinicians; whereas the Respondent wanted to instruct two experts jointly. The Claimant asked for a decision on this before incurring fees, and subsequently applied for a postponement of the PH. It was rejected and the PH went ahead. At no point did the Claimant refuse to obtain specific expert reports. The Claimant has been deprived of that right and the Claimant was left without any expert evidence at all and the tribunal refused to postpone the open PH to determine disability. The The relevant parts of the correspondence are narrated at paragraph 10. The Tribunal had proceeded on the basis of the submission by the respondent which was not contradicted at the time by the claimant. The correspondence puts the position of both parties in a different context. The following passage in paragraph 49 of the judgment should be deleted: “The respondent proposed this but the claimant did not agree. The respondent’s application to the Tribunal for such a report was rejected for reasons this Tribunal is unaware of. The claimant was content that this issue was determined on the basis of the available evidence.” As stated earlier, this Tribunal was unaware of the decisiodecisionn to refuse a postponement. ThThisis Tribunal considered that the claimant was not as disadvantaged as the respondent because the hearing proceeded by consideration of the evidence provided by his medical advisers.

[15]The tribunal has failed to consider whether if the Claimant was not disabled by January 2020 whether he became disabled at any other point before his dismissal on 8 April 2021. Case Nos: 2302208/2020 2302349/2021 10 The Tribunal recorded at paragraph 4 that the material time for determining disability was between January 2020 and the claimant’s dismissal on 8 April 2021. The Tribunal noted all the references to stress in the medical records particularly what is said by Dr Mallett on 13 January 2021 [16]. Dr Mallett proceeds on the claimant’s description of work circumstances. The Tribunal was not prepared to do so. He says “He has a range of significant anxiety symptoms with sleep and concentration disturbance. I gave him some broad based lifestyle advice.” The letter of 26 April 2021 [38] notes that the claimant has been dismissed and has been started on the anti-depressant Mirtazapine.

[16]The Tribunal considered that its process of reasoning may have been compromised by the absence of the correspondence referred to in paragraphs 9 and 10 hereof. The Tribunal appreciated that the existence of an impairment is only the starting point and that it should consider the degree to which a person is affected by a particular impairment in order to determine whether a claimant is disabled within the meaning of the legislation. The Tribunal decided in the interests of justice to grant the request for reconsideration and proceeded to reconsider its judgment and reasons in relation to the effect of the impairments.

[17]The Tribunal reconsidered its paragraphs 42 onwards to address whether either disputed impairment, or both or all three impairments had a substantial and long-term adverse effect on the claimant’s ability to carry out normal day-to-day activities as set out earlier. There was no doubt about the spine issues and the wide impact the pain and discomfort caused by the claimant but their attribution to the disputed impairments was not established in the evidence.

[18]The Tribunal affirms the judgment in its original decision. I D Truscott QC