Mr S M Ford v The Pensions Regulator: 2305513/2023
EMPLOYMENT TRIBUNALS
Case No 2305513/2023
Between
Mr S M FordClaimantThe Pensions RegulatorRespondent
Before
Employment Judge CawthrayIn person for claimantMr. Keith (instructed by Counsel) for respondentDate 7 May 2025
JUDGMENT
[1]The Respondent’s application to strike out part of the Claimant’s claim is dismissed.[2]At the relevant times the claimant was a disabled person as defined by section 6 Equality Act 2010 because of anxiety.
REASONS
[1]On 28 February 2025 the Respondent wrote to the Tribunal and made an application that the Claimant’s part-time worker claims be struck out, and in the alternative a deposit order be made. The Claimant has brought claims under Regulations 5 and 7 of the Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, the complaints which are set out in the list of issues at paragraphs 4 and 5.[2]The application to strike out was made on the basis that the complaints were scandalous, or vexatious, or had no reasonable prospects of success. At the start of the hearing, following a question from me, Mr. Keith clarified that that the application was only being pursued on the ground of no reasonable prospect of success.[3]The Mr. Keith provided written submissions which clarified the application, and made brief oral submissions at the hearing.[4]The Claimant submitted response to the application on 24 March 2025, but also made submissions at the hearing.[5]At the hearing today the Claimant was asked questions about his means to pay any deposit ordered.
The Issues
[6]The issues for determination were as set out below:a. Should parts of the Claimant’s part-time worker complaints as identified in the Respondent’s submissions be struck out because they have no reasonable prospect of success?b. Do the allegations have little reasonable prospect of success?c. If so, should the Claimant be ordered to pay a deposit of between £1 and £1,000 as a condition of continuing with the allegations? The legal principles – strike out orders and deposit orders Deposit Orders Strike Out[7]Under Rule 38 a claim or part of a claim can be struck out on grounds that include it has no reasonable prospect of success. A claim cannot be struck out unless the party has been given a reasonable opportunity to make representations either in writing or, if requested by the party, at a hearing. Rule 38 of The Employment Tribunal Procedure Rules 2024 state: Striking out 38.—(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim, response or reply (or the part to be struck out).(2) A claim, response or reply may not be struck out unless the party advancing it has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing.(3) Where a response is struck out, the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested).(4) Where a reply is struck out, the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).[8]Operation of rule 38(1)(a) requires a two stage test.[9]Firstly, has the strike out ground (here “no reasonable prospect of success”) been established on the facts.[10]If so, secondly is it just to proceed to a strike out in all the circumstances (which will include considering whether other lesser, measures might suffice).[11]When assessing whether a claim has no reasonable prospect of success the Tribunal must be satisfied that the claim or allegation has no such prospect, not just that success is thought to be unlikely (Balls v Downham Market High School and College [2011] IRLR 217). The Tribunal must take the allegations in the claimant’s case at their highest. If there remain disputed facts there should not be a strike out unless the allegations can be conclusively disproved as demonstrably untrue or the claim is fanciful or inherently implausible (Ukegheson v Haringey London Borough Council [2015] ICR 1285; Merchkarov v Citibank NA [2016] ICR 1121). In other words a strike out application has to be approached assuming, for the purposes of the application, that the facts are as pleaded by the claimant. The determination of a strike out application does not require evidence or actual findings of fact.[12]In Ezsias v North Glamorgan NHS Trust [2007] EWCA Civ 330 the Court of Appeal held, as a general principle, cases should not be struck out on the ground of no reasonable prospect of success when the central facts are in dispute. On a striking-out application (as opposed to a hearing on the merits), the Tribunal is in no position to conduct a mini-trial, with the result that it is only in an exceptional case that it will be appropriate to strike out a claim on this ground where the issue to be decided is dependent on conflicting evidence. Such an exception might be where there is no real substance in the factual assertions made, particularly if contradicted by contemporary documents or, as it was put in Ezsias, where the facts sought to be established by the claimant were 'totally and inexplicably inconsistent with the undisputed contemporaneous documentation' (para 29, per Maurice Kay LJ).[13]A strike out application succeeds where it is found that, even if all the facts were as pleaded by the claimant, the complaint would have no reasonable prospect of success. It was said by Underhill LJ in Ahir v British Airways [2017] EWCA Civ 1392 that “Employment tribunals should not be deterred from striking out claims, including discrimination claims, which involve a dispute of fact if they are satisfied that there is indeed no reasonable prospect of the facts necessary to liability being established, and also provided they are keenly aware of the danger of reaching such a conclusion in circumstances where the full evidence has not been heard and explored, perhaps particularly in a discrimination context. Whether the necessary test is met in a particular case depends on an exercise of judgment… Nevertheless it remains the case that the hurdle is high, and specifically that it is higher than the test for making a deposit order, which is that there should be “little reasonable prospect of success.”[14]There is a special need for caution in strike out discrimination cases, and other similar cases, because they are generally fact sensitive, because of the public interest in examining the merits at a final hearing, and because of the shifting burden of proof.[15]Where a litigant in person is involved the tribunal should not simply ask the question orally to be taken to the relevant material in support of the claim but should also carefully consider the claim as pleaded and as set out in relevant supporting documentation before concluding there is nothing of substance behind it; Cox v Adecco Group UK [2021] 1CR 1307.[16]If a strike out application fails the argument about the overall merit of the claim is not decided in the claimant’s favour. Both the claimant and the respondent argue their positions on the merits in full and afresh at the full hearing.[17]The EAT, in the case of Mechkarov v Citibank NA [2016] ICR 1121, summarised the approach to be followed by a Tribunal when faced with an application to strike out a discrimination claim as follows: a) Only in the clearest case should a discrimination claim be struck out. b) Where there are core issues of fact that turn to any extent on oral evidence, they should not be decided without hearing oral evidence. c) The Claimant’s case must ordinarily be taken at its highest. d) If the Claimant’s case is “conclusively disproved by” or is “totally and inexplicably inconsistent” with undisputed contemporaneous documents, it may be struck out. e) A Tribunal should not conduct an impromptu mini trial of oral evidence to resolve core disputed facts.[18]In Yorke v Glaxosmithkline Serviced Limited, at paragraph 51, HHJ Tayler states: “Where the parties are represented it is the representatives that bear the principle responsibility for ensuring that the list of issues is up to the job”.[19]Although a poorly pleaded case presents difficulties for the tribunal, striking out the claim is rarely the answer. In case where there is a litigant in person, as established in Mbuisa v Cygnet Healthcare Ltd EAT 0119/18 the proper course of action would be to record how the case was being put, ensure that the original pleading was formally amended so as to pin that case down, and make a deposit order if appropriate. Deposit Order[20]The power to make a deposit order is provided by rule 40 of the ET Rules, as follows: Deposit orders 40.—(1) Where at a preliminary hearing the Tribunal considers that any specific allegation or argument in a claim, response or reply has little reasonable prospect of success, it may make an order requiring a party (“the depositor”) to pay a deposit not exceeding £1,000 as a condition of continuing to advance that allegation or argument (“a deposit order”).(2) The Tribunal must make reasonable enquiries into the depositor’s ability to pay the deposit and have regard to any such information when deciding the amount of the deposit.(3) The Tribunal’s reasons for making the deposit order must be provided with the order and the depositor must be notified about the potential consequences of the order.(4) If the depositor fails to pay the deposit by the date specified by the deposit order, the Tribunal must strike out the specific allegation or argument to which the deposit order relates.(5) Where a response is struck out under paragraph (4), the effect is as if no response had been presented, as set out in rule 22 (effect of non-presentation or rejection of response, or case not contested).(6) Where a reply is struck out under paragraph (4), the effect is as if no reply had been presented, as set out in rule 22, as modified by rule 26(2) (replying to an employer’s contract claim).(7) If the Tribunal following the making of a deposit order decides the specific allegation or argument against the depositor for substantially the reasons given in the deposit order— (a) the depositor must be treated as having acted unreasonably in pursuing that specific allegation or argument for the purpose of rule 74 (when a costs order or a preparation time order may or must be made), unless the contrary is shown, and (b) the deposit must be paid to the other party (or, if there is more than one to such other party or parties as the Tribunal orders), otherwise the deposit must be refunded.(8) If a deposit has been paid to a party under paragraph (7)(b) and a costs order or preparation time order has been made against the depositor in favour of the party who received the deposit, the amount of the deposit must count towards the settlement of that order.[21]The test for the ordering of a deposit is therefore that the party has little reasonable prospect success. It was said by the Employment Appeal Tribunal in Hemdan v Ishmail [2017] IRLR 228 that the purpose of a deposit order is “ To identify at an early stage claims with little prospect of success and to discourage the pursuit of those claims by requiring a sum to be paid and by creating a risk of costs, ultimately, if the claim fails” and it is“ emphatically not…to make it difficult to access justice or effect a strike out through the back door.” A deposit order should be capable of being complied with and a party should not be ordered to pay a sum which he or she is unlikely to be able to raise.[22]As for the approach the Tribunal should take, in Wright v Nipponkoa Insurance [2014] UKEAT/0113/14 and Van Rensburg v Royal Borough of Kingston-UponThames and others [2007] UKEAT/0095/07 it was said, a Tribunal is not restricted to a consideration of purely legal issues; it is entitled to have regard to the likelihood of the party being able to establish the facts essential to their case and, in doing so, to reach a provisional view as to the credibility of the assertions being put forward. That said there is a balance to be struck as to how far such an analysis can go. It was also made clear in Hemdan that a mini-trial of the facts is to be avoided. If there is a core factual conflict it should properly be resolved at a full merits hearing where evidence is heard and tested.[23]The Respondent pursues the application as an alternative to their strike out application. The test is therefore one of “little reasonable prospect of success” as opposed to “no reasonable prospect of success” for a strike out application.[24]Rule 40 allows a tribunal to use a deposit order as a less draconian alternative to strike-out where a claim or response (or part) is perceived to be weak but could not necessarily be described as having no reasonable prospect of success.[25]In Jansen van Rensberg v Royal London Borough of Kingston-uponThames UKEAT/0096/07, the EAT observed: “27. … the test of little prospect of success … is plainly not as rigorous as the test that the claim has no reasonable prospect of success … It follows that a tribunal has a greater leeway when considering whether or not to order a deposit. Needless to say, it must have a proper basis for doubting the likelihood of the party being able to establish the facts essential to the claim or response.”[26]A deposit order application has a broader scope compared to a strike out application and gives the Tribunal a wide discretion not restricted to considering purely legal questions. The Tribunal can have regard to the likelihood of the party establishing the facts essential to their claim, not just the legal argument that would need to underpin it.[27]In a case where a Tribunal concludes that a claim or allegation has little reasonable prospect of success, it does not mean that a deposit order must be made. The Tribunal retains a discretion in the matter and the power to make such a deposit order has to be exercised in accordance with the overriding objective and with having regard to all of the circumstances of the particular case. Submissions[28]The Respondent’s submissions differ from the application, but I was directed to consider the submissions. Mr. Keith made very limited oral submissions and relied on his written submissions. However, in oral submissions he said there was actual prejudice on the Respondent in relation to issue 5.4.4 as Nicola Parish is no longer employed by the Respondent. She left in March 2024. This was noted but I do not see how this relates to the application for strike out as set out in the submissions.[29]The key submission at paragraphs 33 and 34 of Mr. Keith’s written are that the part-time worker complaints are out of time. It is submitted that complaints arising from events which occurred prior to 12 May 2023 are out of time and invited the Tribunal to make a deposit order in relation to issues 4.1.1 to 4.1.7.[30]At paragraphs 35 to 41 of the submissions Mr. Keith submits that there is no reasonable prospect of success in relation the less favourable treatment of part-time worker claims in relation to issues4.1.1 and4.1.2 and comments on the Claimant, in his particulars of claim, refers to being treated differently to other part time workers.[31]At paragraphs 39 to 41 of Mr. Keith’s submissions relates to some of the Claimant’s allegations of detriment. Mr. Keith has not identified them with reference to the issue number but I understand, on plain reading, that paragraph 39 refers to issue numbers 5.4.1, 5.4.2, 5.4.3 and 5.4.7. It is submitted that these were not related to the Claimant’s part-time worker status, and the precise submissions are: “None of these allegations appear to be related in any way to C’s part-time status. Even if he proves everything he sets out to prove, there is no pleaded link between the alleged contravention of the Part-time Worker Regulations and the detriments complained of; to put it another way, he cannot demonstrate more than a difference fulltime/part time status and a difference in treatment.”[32]In relation to the above matters, in his written submission the Claimant identifies parts of the his claim form that he says set out his pleaded case. In oral submissions the Claimant said he considered there to be an ongoing state of affairs involving Paul Heathorn and Adam Fountain-Johnston and he confirm that the regulation 7 complaint is not based on his status as a part-time worker but his complaint about Paul Heathorn.
Conclusions
[33]The hearing today had not been listed to consider, as a standalone point, whether the part-time worker complaints are out of time.[34]In relation to the less-favourable treatment complaint, as set out at issue 4 in the list of issues, there are 7 allegations of less favourable treatment taking place between 5 December 2022 and 29 March 2023.[35]In relation to the detriment complaint, as set out at issue 5 in the list of issues, there are 9 allegations of detriment taking place between 11 May 2023 and 12 July 2023, there was not an application for any part of this complaint to be struck out, or a deposit ordered.[36]Both complaints refer to actions allegedly done by Paul Heathorn and Adam Fountain-Johnson.[37]I have not heard any evidence in relation to time limits at this hearing.[38]On the information before me, I cannot say at this stage there is no or little reasonable prospects of success in relation to issue 4 on the basis of time. The application is refused. Whether or not the complaint is in time will be considered at the final hearing.[39]In relation to the application to strike out4.1.1 and4.1.2 on the basis of no reasonable prospect of success I noted that the Claimant is a litigant in person. At a case management preliminary hearing the issues were clarified and at 4.2 it sets out the named full time comparators relied on. Whether or not they are appropriate comparators will need consideration at a final hearing, following hearing evidence. On the information before me, I cannot say at this stage there is no or little reasonable prospects of success. This part of the application is refused.[40]In relation to the application to strike out issues 5.4.1, 5.4.2, 5.4.3 and 5.4.7, as set out in the list of issues, and noting this claim is brought under regulation 7 of the part-time worker regulations, the Claimant alleges that bringing a complaint about Paul Heathorn’s scrutiny of the Claimant as a part-time worker on 27 April 2023 was an allegation that the Respondent had infringed the part-time worker regulations.[41]The Tribunal will need to make a determination on whether there was an allegation under rule 7(3)(a)(v) and this will require examination of evidence at a final hearing. If the Tribunal find there was such an allegation, it will then need to determine if the alleged detriment occurred, and if it did, what the reason for it was, on what ground was it done. Again, this requires proper consideration of the evidence.[42]Again, On the information before me, I cannot say at this stage there is no or little reasonable prospects of success. This part of the application is refused.[43]The Respondent’s application for strike out, and in the alternative a deposit order, is refused in full Disability
Background
[44]At the Case Management Preliminary Hearing on 16 October 2024 the Claimant was ordered to provide an Impact Statement and any medical records he wished to rely on.[45]The Claimant relies on anxiety as an impairment in this case.[46]On 10 January 2025 the Respondent wrote to the Tribunal stating “The Respondent accepts that the Claimant has a mental impairment, anxiety. However, it is not accepted by the Respondent that the impairment has a “substantial and long-term adverse” effect on his ability to carry out normal day-to-day activities such as to meet the criteria of disabled within the mention of section 6 of the Equality Act.”[47]The alleged discrimination in this case is understood to be in May and June 2023. Relevant findings of fact[48]The Claimant attended his GP on 4 January 2017. He reported short term memory issues, headaches, disturbed sleep by 1 year old daughter, mood swings, stress of job and parent needs.[49]The Claimant then attended his GP on 18 January 2017. At this time he completed a GAD7 and a PHQ-9 form. These are standard forms completed by patients to assess anxiety and depression. The Claimant scored 2 on the GAD7 and 6 on the PHQ-9. He reported not feeling depressed but stressed at work sometimes.[50]The Claimant attend a review on 25 January 2017 and a further review on 26 April 2017. The Claimant reported that he felt memory problems were due to levels of stress and issues were affecting relationship with wife.[51]The Claimant set out in his Impact Statement how he was impacted in 2017, this evidence was not challenged. In short, he experienced, as feelings of anxiety: “intrusive worries, overthinking, regularly worrying about others views of him, lack of confidence, lack of sleep, forgetfulness, irritability, unwillingness to socialise, feelings of overwhelm when planning tasks and difficulty using public transport.”[52]The Claimant, again in his unchallenged Impact Statement set out that the effects have continued since 2017 to present.[53]In relation to impact on day to day activities the Claimant says he withdraws and often leaves social situations early, cancels planned days out, leaves crowded shops, shuts down and struggles to hold a conversation in overwhelming environments, struggles in management of simultaneous tasks (both work tasks and chores at home), that it takes him longer to do tasks such as cleaning, cooking and shopping, that he spends a long time planning travelling on public transport.[54]In spring 2018 the Claimant felt an increase in anxiety and feelings of overwhelm at work and discussed this with his line manager Luke Wilcox. He contacted a confidential support line via the Respondent and was referred to a therapist and attended six sessions in the summer 2018.[55]In January 2019 the Claimant started seeing a private therapist. The therapy has provided copying strategies and re-framing methods which has enabled him to better manage anxiety by recognizing and implementing strategies. The Claimant attended sessions weekly from January 2019 until July 2022, at which point he reduced his sessions to monthly sessions.[56]The Claimant returned to having weekly sessions in spring 2023.[57]The Claimant suffered increased anxiety from December 2022. At this time the Claimant was still having monthly therapy sessions and the Claimant did not attend his GP until 3 April 2023, but the note records the Claimant as reporting severe work related anxiety started 9 months ago but worsened over the last 4/5 months. The worsening was therefore around November/December 2022.[58]The Claimant records his worsening symptoms as “During the period December 2022 to 12 August 2023, I was suffering from significantly increased anxiety than usual due to my experience working at the Respondent. This included difficulty sleeping on a nightly basis for number of months, which led me to struggle to concentrate, as well as a lack of appetite which resulted in weight loss. When contacted at work by my line manager Paul Heathorn my anxiety would typically spike, through fear of what new issues may be raised. This typically presented itself as chest pains, increased heart rate, increased sweating and a feeling of nausea. My thinking became very clouded, leading to it taking longer to complete tasks at work.”[59]On 3 April 2023 there is reference to a diagnosis of anxiety and the Claimant was signed as unfit to work between 3 and 24 April 2023. The Claimant was very upset for a day or two following the end of year performance review on 29 March 2023.[60]The Claimant attended his GP on 9 June 2023 and the notes record a diagnosis of “Major. Mixed anxiety and depressive disorder (X00sb) (new episode)”. The Claimant was prescribed sertraline. The Claimant was signed as unfit for work for four weeks.[61]The Claimant attended review appointments with his GP on 16 June 2023, 4 July 2023 and 4 August 2023.[62]The Claimant attended an Occupational Health assessment on 25 July 2023.[63]The Claimant continues to take sertraline, albeit he attempted to stop taking in June 2024, but without success. Disability[64]For the purposes of section 6 of the Equality Act 2010 (EqA) a person is said to have a disability if they meet the following definition: 6 Disability (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. (4) This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability. (5)A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1). (6 )Schedule 1 (disability: supplementary provision) has effect.[65]The burden of proof lies with the Claimant to prove that he is a disabled person in accordance with that definition.[66]Further assistance on the definition is provided in Schedule 1 of the EqA. The definition poses four essential questions: a) Does the person have a physical or mental impairment? b) Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities? c) Is that effect substantial? d) Is that effect long-term?[67]However, it is important to look at the overall picture.[68]In Aderemi v London and South Eastern Railway Ltd [2013] ICR 591, Langstaff P stated: “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 carrying out normal day-today activities but upon his ability to do so. Because the effect is adverse, the focus of a Tribunal must necessarily be upon that which the 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 on his ability, that is to carry our 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 trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading of “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”.[69]The term “substantial” is defined at section 212 as “more than minor or trivial”. Normal day to day activities are things people do on regular basis including shopping, reading and writing, having a conversation, getting washed and dressed preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, socializing.[70]Under paragraph 2(2) of Schedule 1 to the Equality Act 2010, 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 to have that effect if that effect is likely to recur.[71]Paragraph 2(1) of Schedule 1 states: 2(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. (3) For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed. (4) Regulations may prescribe circumstances in which, despite subparagraph (1), an effect is to be treated as being, or as not being, longterm.[72]Likely should be interpreted as meaning “it could well happen” rather than it is more probable than not it will happen; see SCA Packaging Limited v Boyle (2009) ICR 1056.[73]A claimant must meet the definition of disability as at the date of the alleged discrimination. Cruickshank v Vaw Motorcast Ltd [2002] I.C.R. 729.[74]When considering if an impairment is “long term”, that consideration must be considered as at the time of the discriminatory act, and not at the date of the hearing. This was again repeated by the EAT in Alao v Oxleas NHS Foundation Trust [2022] EAT 135, where Eady P held that when assessing the question of disability the Tribunal was “bound to have regard” to the position as at the date of the acts of discrimination in issue.[75]A Tribunal must not take into account matters post the relevant period.[76]Guidance is set out in J v DLA Piper in relation to approaching the issue of whether someone has an impairment. The EAT noted it was good practice in every case for tribunals to look at the issue of whether someone has an impairment separately from the question of whether it has an adverse effect on their ability to carry out normal day-to-day activities. However, that did not mean that tribunals should rigidly adhere to that approach, and in some cases (particularly if it involves resolving difficult medical questions) it is appropriate to firstly consider whether the Claimant’s ability to carry out normal day to day activities has been adversely affected. Where the answer is yes, in most cases a tribunal can infer that the Claimant was suffering from a condition which has produced that adverse effect, namely an impairment. The case also gives helpful guidance on the distinction between depression and a reaction to adverse life events, but the focus must remain on the impact of any symptoms on day-to-day activities, and not the label places on symptoms.[77]As to the effect of medical treatment, paragraph 5 of Schedule 1 provides: 5(1) 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. (2)“Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid. (3)Sub-paragraph (1) does not apply— (a) in relation to the impairment of a person's sight, to the extent that the impairment is, in the person's case, correctable by spectacles or contact lenses or in such other ways as may be prescribed; (b) in relation to such other impairments as may be prescribed, in such circumstances as are prescribed.[78]Paragraph 12 of Schedule 1 provides that a Tribunal must take into account such guidance as it thinks is relevant in determining whether a person is disabled. Such guidance which is relevant is that which is produced by the government’s office for disability issues entitled “Guidance on matters to be taken into Account in Determining Questions Relating to the Definition of Disability” (‘the Guidance’). The guidance should not be taken too literally and used as a check list (see Leonard v Southern Derbyshire Chamber of Commerce (2001) IRLR 19).[79]Paragraphs B12 and B13 of the Guidance are set out below. “B12. The Act provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’. The practical effect of this provision is that the impairment should be treated as having the effect that it would have without the measures in question (Sch1, Para 5(1)). The Act states that the treatment or correction measures which are to be disregarded for these purposes include, in particular, medical treatment and the use of a prosthesis or other aid (Sch1, Para 5(2)). In this context, medical treatments would include treatments such as counselling, the need to follow a particular diet, and therapies, in addition to treatments with drugs. (See also paragraphs B7 and B16.)” “B13. This provision applies even if the measures result in the effects being completely under control or not at all apparent. Where treatment is continuing it may be having the effect of masking or ameliorating a disability so that it does not have a substantial adverse effect. If the final outcome of such treatment cannot be determined, or if it is known that removal of the medical treatment would result in either a relapse or a worsening conditioning, it will be reasonable to disregard the medical treatment in accordance with paragraph 5 of Schedule 1”.[80]B12 and B13 acknowledge that treatment should be ignored even when the result of the treatment means the effects are completely under control or not at all apparent. Where treatment is continuing it may be having the effect of “masking” or ameliorating a disability so that it does not have a substantial adverse effect. If the final outcome of such treatment cannot be determined, or if the evidence establishes that removal of the medical treatment would result in either a relapse or a worsened condition, it would be reasonable to disregard the medical treatment.[81]In written submissions Mr. Keith referenced various cases including Morgan v Staffordshire University [2002[ IRLR 190 EAT, Henry v Dudley Metropolitan Borough Council EAT/0100/16/LA and Dunham v Ashford Windows [2005] IRLR 608, EAT. Conclusions Does the Claimant have a mental impairment?
Conclusions
[82]It is accepted by the Respondent, but for completeness I conclude, that the Claimant has anxiety and this is a mental impairment. Did the impairment have a substantial adverse effect on the Claimant’s ability to carry out normal day to day activities?[83]Mr. Keith submits that symptoms with substantial adverse effect on day to day activities did not arise until June 2023, or alternatively end of March 2023 and at that time and were not likely to last for 12 months or more until June 2024, or alternatively end of March 2024.[84]The Claimant submits that he told his employer about his symptoms as far back as 2018 and that his anxiety, although worsened by the Respondent’s treatment, predated work stressors.[85]Undoubtedly the Claimant experienced anxiety, and some periods were worse, as set out in the findings of fact above. The Claimant suffered more with the symptoms of anxiety in close proximity to challenging work situations.[86]I have kept in mind that the relevant date for consideration in May and June 2023. I must have regard for matters as they were are time of the alleged discrimination.[87]It is important to consider that substantial in this respect means more than a minor or trivial. I have considered the well-established principles in Adermi.[88]Normal day to day activities are things people do on regular basis including shopping, reading and writing, having a conversation, getting washed and dressed preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, socializing.[89]I have found the Claimant did experience symptoms.[90]However, the determination is a very specific one considering whether he meets the established definition at section 6 of the Equality Act.[91]The Guidance, in paragraph B9 stresses the importance of considering the things that a person cannot do or can only do with difficulty. I note that the Claimant may take longer to do work tasks and household chores, adapts travelling and can experience difficulties with concentrating.[92]Throught the vast majority of his employment the Claimant was able to continue to work, and I consider the two periods of absence in 2023 were triggered by a stress response to work events which led to worsened anxiety.[93]The Claimant’s GP records do not indicate any pattern of regular attendance to discuss management of symptoms of anxiety. However, the Claimant, during the relevant period, attended regular private therapy sessions. The Claimant did not take any medication to manage his symptoms until July 2023.[94]In the time period before the alleged discrimination I have determined that that the Claimant has not demonstrated that there is any day to day activity that he could not do. However, in April and June 2023 the symptoms became severe enough to mean he was not able to work. For these periods I consider the symptoms of anxiety had an adverse substantial effect on day to day activities.[95]However, I have kept in mind that these were two specific periods, where symptoms were triggered by specific work triggers.[96]Accordingly, due to his inability to work in April and June 2023 I concluded that the impairment did have a substantial adverse effect on the Claimant’s ability to carry out normal day to day activities at those specific times. Are any measures (e.g., medication) being taken to treat or correct the impairment? 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?[97]The next issue to consider is underlined above. As set out in the findings of fact, the Claimant has engaged in therapy, and from July 2023 onwards (post the alleged events) taken sertraline, but the medication has been disregarded in reaching my conclusions.[98]I consider that between 2019 and April 2023 the therapy, the measure, did successfully treat the impairment. It provided the Claimant with the ability to manage his symptoms to such an extent that he was able undertake day to day activities with what I consider to be minor adjustments.[99]I consider that if the Claimant had not been receiving regular therapy the anxiety would have been likely to have had a substantial adverse effect on his ability to carry out normal day-to-day activities. The Claimant’s symptoms worsened for two periods in April and June 2023 when he was unable to do the normal day to day activity of working. This is despite him being in receipt of therapy at the time. I consider that that this alone is indicative of the likelihood that the impairment would have had a substantial adverse effect on his ability to carry out normal day to day activities before this time had he not been receiving therapy.[100]Accordingly, I must disregard the treatment. If so, was that effect long term?[101]On the Claimant’s account, he has experienced the impact of anxiety since 2017. However, although the effects worsened by July 2023 requiring him to take medication, and he has been taking medication for much longer than 12 months, it is important I consider the position from the time of the alleged discriminatory events.[102]I need to consider if the effects lasted 12 months, were likely to last at least 12 months or if likely to last the rest of the Claimant’s life based on the information known at the time of alleged discriminatory events.[103]As set out in the findings of fact, the Claimant used therapy to help manage his anxiety.[104]The Claimant’s symptoms worsened in response to two stressful work place triggers, but the measures (the therapy) had treated the anxiety.[105]On this basis, as the therapy had helped reduce the symptoms, I consider the length of the ongoing therapy that the Claimant actively sought and maintained to be highly relevant. By summer 2023, the material time, the impairment had lasted (albeit managed and treated) since at least 2018, when the Claimant had his first course of treatment. This is longer than 12 months.[106]I conclude that by the time of the alleged discriminatory events the Claimant had been affected for more than 12 months, and therefore was also likely to last more than 12 months.[107]However, when considering whether the effects of the impairment will last the rest of the Claimant’s life, on the evidence available, I cannot firmly conclude that the impairment will affect the Claimant’s normal day to day activities for the rest of the Claimant’s life. I consider that there could be changes in the Claimant’s condition and/or in the medical field.[108]In reaching my conclusion I have not considered events taking place after the alleged discriminatory acts.[109]I conclude that the Claimant was disabled in accordance with the Equality Act 2010 from 2018. Approved by: