Miss N Harrison v Merseyrail Electrics (2002) Ltd: 2402835/2019
JUDGMENT
At all times relevant to this claim the claimant had a disability within the meaning of section 6 of the Equality Act 2010 consisting of the effects of the mental impairment of depression. _____________________________ Employment Judge Horne 6 November 2019 SENT TO THE PARTIES ON 28 November 2019 FOR THE TRIBUNAL OFFICE Note: reasons for the judgment were given orally at the hearing. Written reasons will not be provided unless a party makes a request in writing within 14 days of the date on which this Case no.2402835/2019 2 judgment was sent to the parties. If written reasons are provided they will be displayed on the tribunal’s website. Case No. 2402835/2019 1 EMPLOYMENT TRIBUNALS Claimant: Miss N Harrison Respondent: Merseyrail Electrics (2002) Limited HELD AT: Liverpool ON: 6 November 2019 BEFORE:REASONS
[1]By a case management order sent to the parties on 27 July 2019, this case was listed for a preliminary hearing in public “to determine the disability issue”. The phrase, “disability issue” was defined in the case management order. It meant the question of whether or not the claimant had a disability within the meaning of section 6 of the Equality Act 2010 (EqA) during the relevant period. For the purposes of this claim the relevant period began in August 2018 and ended with the termination of the claimant’s employment.[2]At the start of the hearing, Mr Baker helpfully set out the precise grounds on which the respondent disputed the disability issue. He concentrated his fire on the period from August to September 2018. He did not dispute that the claimant had a mental impairment at that time. His grounds for disputing disability were: Case No. 2402835/2019 2 2.1. that the impairment did not have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities during that period; and 2.2. that the effect of the impairment during that period was not long term.Evidence
[3]I heard oral evidence from the claimant herself. She confirmed the truth of her written statement and answered questions. I also considered documents in an agreed bundle which I read from cover to cover. I took into account Mr Baker’s well-presented oral and written submissions.Facts
[4]The claimant has a history of postnatal depression dating from about 2002. Her depressive symptoms lasted for over 12 months. She required anti-depressant medication and a course of counselling. I did not make findings about the precise effect of her depression on her ability to carry out day-to-day activities at that time.[5]From 2011 until recently the claimant has been employed by the respondent as a train guard.[6]The claimant had two children from 2015 to 2017 and spent a considerable time on maternity leave. On 20 February 2018, as her return to work date approached, she went to her doctor reporting symptoms of anxiety. In particular she was experiencing palpitations and she was not sleeping. She was prescribed propranolol, a beta-blocker, and returned to work.[7]In early August 2018 the claimant was returning home from a holiday abroad with her family when she created an angry scene in the airport. She went home and did not leave the house for two weeks, even to go to the supermarket. During that time, she spent her days on the sofa and she did not wash or brush her hair. She went to see her general practitioner on 17 August 2018 and outlined her symptoms. The doctor gained the impression that the claimant had no motivation, was taking no pleasure from life, was low in mood and was exhibiting the symptoms of an underlying depressive illness. She was prescribed Sertraline.[8]On 21 August 2018, the claimant spoke to Dr Lennox, the respondent’s Occupational Health physician, on the telephone. At that time she told Dr Lennox, truthfully I find, of her history of postnatal depression and of her current fear of leaving the house. She returned to work on 25 August 2018 and worked for approximately one week.[9]On 31 August 2018, the claimant self-certified as unfit to work with depression. She went to see her GP again. This time her medication was changed to Fluoxetine. She complained of low mood and described her symptoms as being worse.[10]On 7 September 2018 the claimant obtained a GP fit note for two weeks. At that time she told the doctor that she was panicking about little things. She was prescribed Propranolol again. Case No. 2402835/2019 3[11]On 18 September 2018 the claimant had a face-to-face consultation with Dr Lennox. She told Dr Lennox that she could become anxious in the supermarket and needed to have her partner with her. Subject to one small point of detail I accept that the claimant was telling Dr Lennox the truth. At that time the claimant would not leave the house to go shopping on her own. She would only leave the house with her partner or (though Dr Lennox did not note this) her teenage daughter. Dr Roddy formed the view that the claimant would be fit for work. In a report dated 20 September 2018 he informed the respondent to that effect.[12]The claimant returned to work on 20 September 2018. It did not go well. No sooner had she stepped on board her train than she started to experience a panic attack. As a result, she could not leave the back compartment. She made another attempt at returning to work the following day. She worked in the morning and then went back to her GP. She told the doctor that she was having panic attacks, feeling numb and suffering from anxiety at work. The symptoms noted by the doctor included crying, constant pain in her chest and difficulty in breathing. The doctor recorded that the claimant was “smartly presented”. Nevertheless, it was the doctor’s opinion that the claimant was unfit for work. She was given a further two-week fit note.[13]I now address a factual contention made by the respondent. The argument is based on the “smartly presented” entry in the record for 21 September 2018. On the strength of that entry, Mr Baker invited me to reject the claimant’s evidence about the impact of her depression on her ability to wash and dress herself. I do not find this argument persuasive. The imagined inconsistency does not exist. It is not surprising that the claimant was smartly presented when she saw her GP – she had just come back from work. The time when the claimant was not washing and dressing herself was prior to 17 August 2018 when the claimant was on leave.[14]During the course of the oral evidence I was taken to medical records post-dating September 2018. There was nothing in those records that caused me to alter my findings about the effect of the claimant’s mental impairment in August and September 2018.Relevant law
[15]Section 6 of EqA provides: (1) A person (P) has a disability if- (a) P has a … 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. … (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).[16]According to section 212(1) EqA, “substantial” means “more than minor or trivial”.[17]Schedule 1 to EqA supplements section 6. Relevant extracts are: 2. Long-term effects Case No. 2402835/2019 4(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…. … 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. PART 2 - GUIDANCE 10. Preliminary This Part of this Schedule applies in relation to guidance referred to in section 6(5). 11. Examples The guidance may give examples of- (a) effects which it would, or would not, be reasonable, in relation to particular activities, to regard as substantial adverse effects… 12. Adjudicating bodies (1) In determining whether a person is a disabled person, [a tribunal] must take account of such guidance as it thinks is relevant.[18]The relevant guidance is to be found in the Secretary of State’s Guidance on Matters to be Taken Into Account in Determining Questions Relating to the Definition of Disability (2011). The following passages appear to be helpful: B1. The requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people... 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”… C3. The meaning of “likely” is relevant when determining - whether an impairment has a long-term effect … - whether an impairment has a recurring effect… In these contexts, ‘likely’, should be interpreted as meaning that it could well happen. C4. In assessing the likelihood of an effect lasting for 12 months, account should be taken of the circumstances at the time the alleged Case No. 2402835/2019 5 discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood… … D2. The Act does not define what is to be regarded as a ‘normal dayto- day activity’. It is not possible to provide an exhaustive list of day-today activities, although guidance on this matter is given here and illustrative examples of when it would, and would not, be reasonable to regard an impairment as having a substantial adverse effect on the ability to carry out normal day-to-day activities are shown in the Appendix. D3. In general, day-to-day activities are things people do on a regular or daily basis, and examples include shopping… getting washed and dressed …, and taking part in social activities. Normal day-to-day activities can include general work-related activities…such as interacting with colleagues, … carrying out interviews… … APPENDIX AN ILLUSTRATIVE AND NON-EXHAUSTIVE LIST OF FACTORS WHICH, IF THEY ARE EXPERIENCED BY A PERSON, IT WOULD BE REASONABLE TO REGARD AS HAVING A SUBSTANTIAL ADVERSE EFFECT ON NORMAL DAY-TO-DAY ACTIVITES. … - Difficulty in getting dressed, for example, because of …low motivation; … - Difficulty going out of doors unaccompanied, for example, because the person has a phobia…; … - Persistent general low motivation or loss of interest in everyday activities; … - Persistently wanting to avoid people or significant difficulty taking part in normal social interaction or forming social relationships, for example because of a mental health condition or disorder[19]The tribunal must focus on what the claimant cannot do, or can do only with difficulty, rather than the things that she can do: Goodwin v. Patent Office [1999] IRLR 4. That is not to say, however, that the things that the claimant can do are completely irrelevant; they may shed some light on the extent of any difficulty in carrying out the activities upon which the claimant relies.[20]In assessing whether an impairment has an effect on a person’s normal day-today activities, it is appropriate for a tribunal to consider the effect on the person’s Case No. 2402835/2019 6 ability to cope in his or her job: Paterson v. Commissioner of Police for the Metropolis [2007] ICR 1522.[21]Tribunals do not need to make a medical diagnosis or identify the precise cause of an impairment. Whilst it is good practice to make separate findings about the impairment and its effect, the tribunal need not proceed in rigid consecutive stages. Indeed, in the case of recurring bouts of depression, it may be preferable to start by looking at whether the claimant’s ability to do normal day-to-day activities is adversely affected on a long-term basis and then consider the question of impairment in the light of those findings: J v. DLA Piper UKEAT/0263/09 per Underhill J at paragraph 40.[22]Care must be taken to distinguish between the effects of an impairment on the one hand and reactions to adverse life events on the other: J v. DLA Piper cited above. Conclusions Mental impairmentConclusions
[23]The claimant undoubtedly had the mental impairment of anxiety and depression during the summer of 2018. The impairment may have existed prior to that time, but, for the purposes of the disability issue, it is sufficient to record that it began no later than early August 2018 and lasted beyond the end of September 2018. Adverse effect on ability to carry out activities[24]Throughout this period, the claimant’s mental impairment had an adverse effect on her ability do the following activities: 24.1. Shopping; 24.2. Leaving the house; 24.3. Washing, dressing and keeping her hair tidy; 24.4. Attending work; and 24.5. Interacting with members of the public on a train.[25]The respondent argues that the claimant’s difficulties in doing these things might not have been the effect of the claimant’s impairment at all, but a reaction to an adverse life event, such as “holiday blues”. I do not accept that argument. Whilst it is human nature to feel a little flat on return from holiday, the claimant’s reaction went way beyond that. She virtually ceased to function for two weeks. It is hard to see how returning from holiday could had such a marked effect on the claimant’s day-to-day living unless there were some underlying condition. Normal day-to-day activities[26]All of the activities I have listed above were, in my view, normal day-to-day activities. They are things that one might expect a person to do on a regular basis. Shopping, dressing, social interaction and routine work activities are all expressly mentioned in the Guidance. Substantial Case No. 2402835/2019 7[27]In assessing whether or not the effect was substantial, it is important to distinguish between two periods in time. Early August to 17 August 2018[28]The first period was for two weeks until about 17 August 2018. During this period, the claimant could not do any of these activities at all. The adverse effect was clearly substantial. 17 August 2018 to end September 2018[29]From about 17 August 2018, once she had been prescribed Sertraline (and, later, Fluoxetine), the claimant could wash, groom and dress herself. She could leave the house and go shopping, but only with difficulty: she could not do it except with one of two trusted companions. For a few days she could physically attend work; at other times she could not even go to work at all. At no point was she well enough to interact with members of the public on a train. In my view, even allowing for the beneficial effect of the Sertraline and Fluoxetine, these difficulties were more than minor or trivial.[30]I have a further reason for considering that the adverse effect was substantial from 17 August 2018 onwards. This reason is based on what is sometimes called the “deduced” effects in the absence of medication. I have no expert evidence of what the effect of the claimant’s anxiety and depression would have been if the claimant had not been taking Sertraline or Fluoxetine. Nevertheless I am able to conclude that, without either of those two drugs, her anxiety and depression could well have prevented the claimant the claimant from washing, dressing and grooming and from leaving the house altogether. I base my finding on the evidence of what actually happened. For two weeks, when the claimant was not taking that medication, those were the effects of her mental impairment. Long term[31]By September 2018 the adverse effects of the claimant’s mental impairment had not yet lasted for 12 months. But the adverse effects could still be long-term if it was likely that they would last for 12 months or more. In order to establish whether that test was met, I had to ask myself the following question: Could it be said, in the circumstances prevailing in August and September 2018, that the adverse effects of her depression and anxiety could well last for 12 months?[32]I decided to answer that question in the affirmative. I started by placing myself in August 2018 and looking at the situation that prevailed at that time.[33]By August 2018, certain facts were known: 33.1. This was not the claimant’s first bout of depression. When she previously had a depressive episode, it had lasted for more than 12 months. Although it was some 16 years before the time with we are concerned, it was an indicator that the claimant was not naturally predisposed to recover quickly from depressive illness. 33.2. Second, the claimant had a history of anxiety attacks when faced with the prospect of returning to work after a period of absence. In early 2018 she Case No. 2402835/2019 8 had suffered such attacks even when she was otherwise well. She had panic attacks when she tried to return to work in September 2018. These facts were an indicator that any future return to work (after September 2018) might well trigger a similar reaction.[34]I then tried to predict the likely duration of the claimant’s depression, using the known history as a guide. At this stage of my analysis, I assumed (in the respondent’s favour) that the claimant would continue to take medication and that it would continue to have a beneficial effect. Even working on that assumption, I would conclude that the effect of the claimant’s impairment was long-term. My prediction was based on two binary possibilities: 34.1. One possibility was that the claimant would remain unfit to return to work until August 2019 because of anxiety and depression. In that event, it would be a certainty that the adverse effect of the claimant’s mental impairment on the day-to-day activity of going to work would last for 12 months. 34.2. The alternative possibility was that the claimant’s health might, at some point, improve to the point where her GP considered her well enough to work. But, if that were to happen at some point prior to August 2019, the claimant could well have suffered anxiety attacks which caused her mental health to deteriorate once again. If her anxiety attacks aggravated her depression when faced with a return to work, the effects of her mental impairment on her ability to carry out the day-to-day activity of going to work (and probably other day-to-day activities as well) could well last for more than 12 months in total.[35]The conclusion on long-term effects becomes even more compelling when one disregards the beneficial effects of medication. I return once again to August 2018, and try to imagine how long the effects of the claimant’s depression and anxiety would last if she did not take Sertraline, Fluoxetine or Propanalol or receive any talking therapies. In my view I do not need the assistance of expert evidence to conduct that exercise. Whilst it is possible that the claimant’s mental health might have improved by itself, I cannot accept that this outcome would be likely without any kind of treatment. One does not need to be a doctor to know that self-neglect can worsen a person’s depression and vice versa. A person who is so depressed that they do not wash, dress, work or leave the house could well stay in that state until something is done to make it better. Or, to put it into the language of the statutory definition, the substantial effect of the claimant’s mental impairment on her ability to carry out normal day activities could well have lasted for 12 months if she did not take measures to correct it, and must therefore be treated as being likely to last for 12 months. That is a long-term effect.Outcome
[36]The claimant therefore had a disability within the meaning of section 6 of EqA at all times relevant to this claim. Case No. 2402835/2019 9