Employment Judge SharkettMr N Toms (instructed by Counsel) for claimantDate 2 March 2022
JUDGMENT
[1]At the relevant time during the claimant’s employment i.e. 2 March 2021 to 19 March 2019, she was not disabled for the purposes of s6 Equality Act[2]The claimant is unable to rely on the protected characteristic of disability and her claims of unlawful discrimination reliant on that protected characteristic are dismissed.[3]The final Hearing listed for 9-11th October 2023 is cancelled.
REASONS
Following an extempore Judgment handed down on 2 March 2022, the claimant requests written reasons under Rule 62(3) of the Employment Rules of Procedure 2013. There has been some delay in the sending out these reasons for which EJ Sharkett apologises.[1]The claimant commenced employment with the respondent on 2 March 2021, as a logistics apprentice. She commenced early conciliation in 28 May 2021 and an ECC was issued 9 July 2021.The claimant brings claims in an ET1 submitted 9 August 2021, for unlawful discrimination under sections 13,15, 19 20&21 and s26 Equality Act 2010, on the protected characteristic of disability, and payment of arrears or pay and accrued holiday. It is the claimant’s case that she was diagnosed with anxiety and depression in 2019 and, that by reason of these impairments she is disabled for the purposes of s6 Equality Act 2010 (the EqAct). The respondent does not concede that the claimant is a disabled person for the purposes of s6 EqAct and the issue of whether she is falls to be determined at this Preliminary Hearing.[2]In preparation for the hearing I have been provided with a bundle of documents consisting of 75 pages Written witness statements have also been prepared by the claimant and the claimant’s mother Mrs Margaret Daly. The witness statements were taken as read and I heard further oral evidence from both witnesses who answered questions in cross examination by Ms Clapham, solicitor for the respondent, and questions from the Tribunal. Mr Toms asked further questions of the claimant in re-examination.[3]I received written submissions on behalf of the claimant together with copies of authorities and relevant guidance and heard oral submissions from both representatives.[4]In determining whether or not the claimant is able to satisfy the definition of s6 Equality Act 2010, and rely on her impairments of anxiety and depression in pursuit of her claim of unlawful discrimination, I have regard to the claimant’s impact witness statement and medical evidence, and evidence of her mother. I also have regard to the oral evidence she has given today and the submissions of both representatives and the authorities and guidance I am asked to consider.[5]The impairments relied on by the claimant are not ‘deemed disabilities’ under the EqAct, and therefore the burden is on the claimant to show that she is able to satisfy that definition of section 6. To do this she must be able to show that she;a. suffers from a physical or mental impairment, that;b. has a substantial and,c. long term,d. adverse effect on her ability to carry out her normal day to day activities.[6]The claimant must be able to satisfy each limb of the test. The Tribunal note that the conditions of anxiety and depression would satisfy the definition of an impairment, subject to a finding that the claimant suffers from the same by the Tribunal, and that for it to be substantial it need only be more than trivial. Whether, the impairments are then found to be long term and have an adverse effect on the claimant’s ability to carry out normal day to day activities will be dependent on the facts of each case. I am however mindful of the purpose of the provisions of the Equality Act 2010 and the protection that is afforded under it for those identified as having a relevant protected characteristic in need of protection Evidence and findings[7]I have had careful regard to all the evidence that I have read and heard about the claimant and her own personal circumstances. It is not necessary to rehearse everything that I have been told in this Judgment but I have considered all evidence before me, in the round, before reaching my decision.[8]The claimant has described significant symptoms from which she reports she has suffered throughout her life, including an inability to sleep which leaves her fatigued, nausea and vomiting, and a loss of appetite. She reports feelings of panic, lack of self-worth and low moods as further symptoms which are often present but all of which she says are made worse by changes occurring in her life. She describes how she was able to put on a brave face despite her struggle.[9]The claimant’s medical records relating to the claimant’s impairments of anxiety and depression are scant and large sections of the notes are redacted. It is reasonable to assume that the redacted entries relate to information that is not relevant to the issue before this Tribunal, or alternatively the claimant does not wish to rely on those entries in support of her claim. The claimant explained that the lack of evidence contained within her medical records is because she had a reason she did not approach her GP about her anxiety or depression. She explained that this was because she had wanted to join the army from an early age and was concerned that any diagnosis of poor mental health may have adversely affected her chances of doing so.[10]The medical notes are however of some assistance to the Tribunal. In particular it is noted that 13th February 2020 is the date on which the claimant first made reference to any concerns about her mental health. On this occasion she reported sickness and a lack of appetite, together with a low mood. She also reported that she had recently changed to a new job which she was enjoying. However, in a telephone consultation with her doctor a month later on 18th March 2020, she reported that her anxiety levels had worsened over the last few months and that she had been quite stressed. She further reported that she had re-joined the gym when she had been paid, which had improved her mood in the past and that she was able to socialise more. The claimant told the doctor that she had suffered from anxiety in the past but has never wanted to take medication. She informed the doctor that she had referred herself to Healthy Minds for online sessions. The Tribunal note that while there is evidence that the claimant did self- refer to Healthy Minds, she did not respond to their invitation to make an appointment with them and on March 26th 2020 she was discharged by them. The claimant denies any contact from Healthy Minds.[11]At a later appointment on March 9th 2021, the claimant told the doctor, that she would refer herself to Healthy Minds, but she did not. The Tribunal does not accept her evidence that she did not know how to do this, because there is clear evidence that she successfully managed to do it the year before. It is also clear to the Tribunal, from hearing from her mother today, that she would have had her assistance if she had been struggling with completing forms at that time. Notwithstanding the claimant’s evidence today that she ‘would have given it a try’, it is clear she neither wanted to talk to someone about her condition, nor did she think that they would be able to help her. Her oral evidence was inconsistent and she was clear in her opinion that there was no guarantee that Healthy Minds could have helped her and that there was no magic cure.[12]In oral evidence the claimant also explained that the reason she had not told the doctor she wanted to take medication for her condition was because her mother, who is a trained nurse had warned her against it. In oral evidence the claimant explained that she had wanted to commence medication but her mother had told her that she would not be allowed to stay in the family home if she did. It is clear that the claimant did not always enjoy an easy relationship with her mother and both she and her mother have described times when circumstances in the claimant’s life resulted in them arguing and the claimant being told to leave the family home. This was around August 2019 and was the time where the claimant had successfully applied to join the army. Her mother explained in oral evidence that at this time the claimant had been in, what her mother described as, a controlling and abusive relationship, and she thought that when she was told to leave the family home the claimant thought her life was going no-where and applied to join the army. In oral evidence the claimant’s mother also said that pre-army she did not consider the claimant was suffering from anxiety. It was also at this time that the claimant says her anxiety “kicked in”. Her time at the army was short lived and although her mother was opposed to her coming out, she returned home and her mother signed her up to study health and social science at college.[13]In oral evidence the claimant confirmed that up to the point when she joined the army she had found that she could manage her anxiety and depression because she did not challenge herself. She accepted that she did not approach her GP about her conditions until March 2020 and that it is not recorded within her notes that she has anxiety and depression. At it’ highest the medical notes record that she can feel low and panicky and that she does not want medication (p49&50). Contrary to the claimant’s evidence, the medical records do not record that the claimant was diagnosed with anxiety and depression in 2019 and the claimant accepts that the first time she raised issues about her mental health was in February 2020.[14]It the written evidence of the claimant and her mother they described a serious decline in the claimant’s mental health when she returned from the army, to the extent that her mother was worried for the claimant’s safety and that she may have been sectioned if she had taken her to the hospital as the claimant wanted. In oral evidence Mrs Daly confirmed that this was the period between November 2019 and lockdown in March 2020. This evidence is however inconsistent with the evidence that when the claimant returned from the army her mother had enrolled her on a health and social science course which the claimant had enjoyed. The claimant in oral evidence described how she had received distinctions in the work she had submitted on the course. She had also started a new job in December 2019 and told her GP in February 2020 that she was enjoying it.[15]In considering the entry recorded on 13th February 2020, I remind myself that the reason the claimant gave for not previously telling her GP about her mental health was because of her worry that this may have affected her chances of joining the army. However, at this consultation this was no longer a barrier due to the fact that she had joined the army and left, she was therefore now in a position to speak freely to her GP. There was no reason why, if the claimant was suffering to the extent explained by her and her mother, that she would not have told her GP on that occasion. I find that on the balance of probabilities the extent of the claimant’s poor mental health has been exaggerated because if the claimant had given the same account to her GP in the consultation of 13th February 2020, it would have been recorded. I do not accept the claimant’s assertion that she cannot tell her GP what to write, as I do not find it credible that a medical practitioner, bound as they are to strict standards of practice in respect of records keeping, would have deliberately omitted such significant matters. The reliability of the account is further called into question by not only the inconsistencies identified but also the inaction of the part of those around the claimant to seek medical from November 2019 when on her mother’s evidence she feared leaving the claimant on her own. In circumstances such as this even if her mother had been reluctant to take the claimant to A&E for fear of her being sectioned, it is not credible that she would not have at least sought the assistance of the GP if matters were as serious, as she describes, especially in light of the fact that she is a trained health professional. Whilst I accept that access to a GP became more difficult after lockdown, it was Mrs Daly’s evidence that these events took place between November 2019 and lockdown, where access to GP appointments were not been impacted until around February 2020/[16]Returning to the claimant’s consultation with her GP in February 2020, the claimant had explained that she had felt her work environment to be unsupportive, there had been gossip at work and the women she worked with had started to ignore her. The situation had become stressful for the claimant and realised that she was unable to manage working and studying at the same time. Her evidence to the Tribunal was that she needed to work to earn money to pay for her board and lodgings at home so had decided to give up her studies.[17]However, despite giving up her studies matters at work had not improved and she contacted her GP on18th March 2020 to ask for a fit note. She had already been absent from work from 7th March -14th March 2020 but had selfcertified that absence. It is recorded in the notes of 18th March 2020, that she was stressed at work and her anxiety levels had worsened over the last few months. She reported that she had suffered from anxiety in the past but had never wanted to take medication. She had re-joined the gym as she had been paid, and she was able to socialise more. She reported that she was keen to return to work and her absence was recorded as Anxiety State. The Tribunal notes again that this is in stark contrast to the evidence of the witness and her mother about the severity of claimant’s mental health at this time. The Tribunal also note that it is shortly after this consultation that lockdown commenced so the claimant would no longer have been able to attend the gym or socialise with her friends.[18]The claimant was issued with a fit note for Anxiety State for two weeks and requested a further one on 6th April 2020. Healthy minds had also discharged the claimant on 26th March 2020 when it received no response from the claimant. On 5th May 2020 and the claimant requested a further extension to her fit note. Prior to the issue of the further fit note the claimant was asked to have a telephone consultation with a GP. It is noted that the request for a consultation came from the surgery and not the claimant. A fit note was issued until 14th May which was the date that the claimant had agreed with her employer that she would return to work.[19]The claimant however did not return to work as planned but resigned her position. Soon after this she started to care for her grandmother. It is not known whether this was in a formal capacity but the claimant explained that routine was good for her and that she enjoyed caring for her grandmother. There are no further entries in the medical records until 16th October 2020 when the claimant was issued with a sick note following an online request. There is no record of the nature of the sickness experienced at this time but there is reference to the completion of an on-line questionnaire which I have not seen.[20]The claimant’s explanation for the lack of GP contact from May 2020 when she left her job to October 2020 was that she did not want medication so she did not think the GP could do anything for her. She explained that the routine of caring for her grandmother was good for her and when she started to feel well she starting looking for jobs. This is inconsistent with the claimant’s oral evidence that while caring for her grandmother she was not under any pressure so she did not have panic attacks and could manage, therefore she didn’t need to see a GP. It is noted that whilst the claimant has described having panic attacks each time she left home, which is inconsistent with her evidence generally, the medical do make any record of panic attacks, the only reference is to feeling panicky. The Tribunal notes that there is a difference between feeling panicky and having a panic attack. I have been given no reason why the claimant would not have told her GP that she suffered from panic attacks and that if she it would have been recorded in her notes.[21]In October 2020, the claimant contacted her GP to ask for a fit note and she was asked to complete a questionnaire. There is no record of the medical reason for the sick note and I have not had sight of the questionnaire referred to therein. It is not possible therefore to identify the basis on which that fit note was issued.[22]There is no further contact with the GP until 9th March 2021 which was shortly after the claimant had started to work for the respondent on 2 March 2021. During that consultation she had explained that she had started to feel unwell and thought that she may have Covid, however when her test came back negative, she realised it must be because she was anxious in her new job. In the telephone consultation with her GP she reported that she had suffered from anxiety for years but that it had been worse over the last 1-2 years. She reported feeling panicky and that she could feel low in mood as well. She had no thoughts of self-harm and it is recorded that she did not want medication as she would prefer to try therapy and would self-refer to Healthy Minds. As above it is accepted that the claimant did not do this although the Tribunal does accept that the claimant has used the internet to assist her with coping tools such a mindfulness.[23]The Tribunal also note that at para 10 of her grounds of complaint she states “’the claimant confirmed that she had managed to speak with her GP who had prescribed her some medication” . However it is clear from the medical records that this is not the case. The claimant had instead purchased an over the counter product called Kalms which she records as taking for only short periods of time.[24]The notes which of course are only provided for the purpose of this hearing record one further attendance for Anxiety State on 22 March 2021. The Tribunal note that under the heading “Minor Past” on the dates of 9th and 18th March 2021 there are entries for ‘Anxiety State’[25]By her own evidence the claimant accepts that although she suffers from anxiety and depression she is usually able to manage it and it is only when she has a flare up that her day to day activities are affected. In her impact statement the claimant has described the effect her impairments have upon her during periods of flare up. In particular she describes how ‘I usually really enjoy socialising with my friends’ and then describes how she is during flare ups which in addition to the above also includes being unable to travel on public transport.[26]The claimant commenced new employment in July 2021 and reports that since then she has made sure that she looks after herself using coping mechanisms and no longer suffers from as many ‘flare ups’ She reports that working with dogs has had a calming effect on her and that she has a supportive family to help her. She explained that she has now become stronger and can cope with matters herself. Submissions[27]For the respondent Ms Clapham submits that the claimant has not been diagnosed with anxiety and depression and the assertions of being impaired by these conditions within the claimant’s impact statement are not supported by evidence. Ms Clapham refers me to the guidance and submits that what the claimant experiences is intermittent only. She submits that what the claimant has experienced is the same as most people do when they start a new job or are under pressure of some sort. She submits the impact statement is exaggerated and that the reason there is no medical evidence to support her assertions is because there is no effect to report. The claimant only contacts her GP when she is stressed much the same as most people. She submits that she has not been diagnosed with either condition and cannot satisfy the requirement of being long term.[28]For the claimant and in addition to his written submissions, Ms Toms accepts that the claimant’s impairments relates more to anxiety than depression and he refers me to Schedule 1 which deals with recurring conditions. Mr Toms submits that it is irrelevant that no formal diagnosis has been made, the question is whether the claimant has a physical or mental impairment. He submits that the Tribunal should take a purposive approach and consider the purpose of the legislation. Mr Toms submits that although there is not a wealth of medical evidence, the fact that the claimant has consulted with her GP five times in the course of one year is sufficient to satisfy the requirement of being long-term and satisfies the definition of s6. Law and Application of Facts[29]Section 6(1) of the Equality Act 2010 sets out the definition of disability as A person has a disability if the person has a physical or mental impairment and the impairment has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities.[30]Section 212 of the Act, confirms the interpretation of substantial to be more than minor or trivial. The question of what is more than minor or trivial is a matter of degree to be decided by the Tribunal having regard to the statutory guidance available and all the circumstances of the case.[31]Schedule 1 para 2(1) of the Act defines long term as an impairment having lasted for 12 months, likely to last for at least 12 months or, it is likely to last for the rest of the life of the person affected. The paragraph goes on to explain that 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 it if the effect is likely to recur.[32]Schedule 1 para 5 provides that 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 measures are being taken to treat or correct the impairment and, but for that (treatment or measure) it would be likely to have that effect. This means that if the Claimant was taking medication to control her impairments, the Tribunal must, when considering whether the impairment has a substantial adverse effect, consider what the effect of the condition would be on her ability to carry out normal day-to-day activities if she was not taking the medication. It was however, established in Paterson v Commissioner of Police for the Metropolis [2007] ICR 1522 (EAT) para 46,( Paterson) which is now also found at B7 of the Guidance, that unlike medication, which should be discounted when carrying out an assessment, coping and avoidance strategies can be taken into account if the effect of adopting such a strategy means that a person does not suffer a substantial adverse effect and is therefore not disabled under the definition in the Act. This is particularly relevant in this case as the claimant’s evidence that she uses such strategies to assist her.[33]B7 of the guidance provides that account should be taken of how far a person can reasonably be expected to modify their behaviour, for example by the use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day to day activities. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. The guidance gives as an example that when considering modification of behaviour it would be reasonable to expect a person who has chronic back pain to avoid extreme activities such as skiing. It would not be reasonable to expect the person to give up or modify more normal activities such as shopping or using public transport.[34]B9 goes on to say that account should also be taken of where a person avoids doing things which for example, cause pain, fatigue or substantial social embarrassment, or avoids doing things because of a loss of energy and motivation. It would not be reasonable in those circumstances to conclude that a person who employed an avoidance strategy was not a disabled person. In determining the question of whether a person meets the definition of disability it is important to consider the things that a person cannot do or can only do with difficulty. When considering what a person is able to do or not do it is by reference to normal day-to-day activities (section D of the Guidance) and not by reference to what might be normal activities for a small or particular group of people. In addition, it is not by comparison to what the average person is able to do or not do, nor by comparison of the effect the impairment/s would have on the average person. The test is the effect of the condition on the Claimant and what she personally cannot do as a result of the impairment/s or can only do with difficulty. In Condappa –v- Newham Health Care Trust EAT/452/00 it was established that where a person carries out normal day to day activities in pain or with difficulty this may amount to a substantial adverse effect but will not necessarily do so. The test is not whether the impairment had an adverse effect on the claimant’s ability to carry out normal day-to-day activities but rather is whether the impairment had a substantial effect on his ability to carry out normal day-to-day activities.[35]Where it is necessary to project forward to determine whether an impairment is long term the correct test as to whether it is ‘likely’ is to ask whether ‘it could well happen’ and not whether it is more probable than not that it will happen (SCA Packaging Ltd v Boyle [2009] D ICR 1056 HL) and para C3 of The Guidance on matters to be taken into account in Determining Questions Relating to the definition of Disability (2011).[36]In accordance with McDougall v Richmond Adult Community College 2008 ICR 431 CA, the Tribunal must assess whether at the time of the alleged act of discrimination i.e. between 2nd and 19th March 2021, the effect of the claimant’s impairment had lasted or was likely to last at least 12 months[37]In considering whether the claimant has a physical or mental impairment the Tribunal adopts the ordinary and natural meaning of the words. Whilst I approach this exercise systematically I confirm that I have first looked at all the circumstances of this case in the round. It is clear from the medical records and her own evidence that the claimant has suffered with feelings of anxiety during periods between late 2019 and 2021.[38]I agree that a formal diagnosis of an impairment is not always necessary but it is none the less important to have close regard to the medical evidence provided. I am satisfied that the claimant has suffered periods of anxiety and on those occasions the impact of her anxiety has adversely affected her daily activities such as being able to sleep and attend work and has manifested itself in feelings of nausea and vomiting. In considering this issue I have had regard to J v DLA Piper UK LLP 2010 ICR 1052 EAT and remind myself that when considering impairment in cases of alleged depression I need to be mindful of the distinction between clinical depression and a reaction to adverse circumstances.[39]I note that there is no indication that the claimant suffers from depression. Reference to a low mood without more is not indicative of suffering from depression and nor is simply staying at home and not mixing with friends – especially during a period of lockdown when it was expressly forbidden to do this. In respect of the claimant’s evidence that she did not mix with friends on other occasions outside the period of lockdown, there is no evidence to support this contention and both her medical evidence and oral evidence before this Tribunal is inconsistent with her lack of socialising with friends. On the contrary during the period when the claimant is said to be at her worst according to the evidence of the claimant and her mother, there is reference in her medical records of 13 February 2020, to her going to the gym and socialising with friends, and in oral evidence the claimant explained that she had really good friends that she speaks to and sees. In addition there is no evidence of an intent to self-harm, on the contrary the claimant denies any ideas of self-harm according to the medical records.[40]Although I have found that the claimant and her mother have exaggerated the extent of the conditions the claimant relies on, I find that if there had been a sufficient history of poor mental health reported to the GP, given the effects described by the claimant I would have expected to see medical evidence of a diagnosis rather than simply a reference to ‘anxiety state’ which is listed as a “Minor Past” in the claimant’s medical records. This tends to suggest that these are episodes that have occurred in the past and not likely, (to the extent that they could well) recur in the future. This in no way is meant to detract from the experience of the claimant during those times which clearly had an impact on her. However, I also note that at times where the claimant is not experiencing such adverse circumstances, there is not one occasion when she has contacted her GP for advice or assistance with anxiety.[41]It is clear from the evidence before the Tribunal that when the claimant is experiencing periods of stress in her life, she becomes anxious. This is evidenced by entries in the medical records and the claimant’s own evidence. It is clear that on the occasions the claimant found it difficult to attend work because she was anxious, she sought the assistance of her GP to provide her with a fit note to allow her time away from work. As mentioned above these occasions have coincided with occasions when external circumstances were impacting on the claimant’s well-being. The symptoms that she describes to her GP of feeling sick and having difficulty sleeping are common in people who are anxious and did impact on the claimant’s ability to go to work because her disturbed sleep left her feeling tired. Whilst the claimant has also described other ways in which the claimant was affected during these times these are either nor recorded in the medical records or are inconsistent with what is recorded.[42]In Mr Tom’s written submission he asks the Tribunal to consider the effects of her anxiety at the material time i.e. the time of the alleged acts of discrimination, and whether there was information which viewed at that time, suggests that it could well happen that the effects would last for 12 months. Mr Toms submitted that the fact that the claimant had been visiting the GP for over a year is sufficient to satisfy the requirement of long term. Unfortunately, I do not agree with Mr Toms in respect of his latter submission nor do I find that the claimant’s anxiety can be classed as a recurring condition for the reasons given below.[43]The claimant does not dispute that the first time she contacted her GP about her anxiety was in February 2020. In the months leading up to this consultation the claimant’s life circumstances had been fairly challenging, she had been told to leave the family home because of tensions with her mother, she had moved in with her boyfriend who the claimant’s mother has said was abusive and controlled the claimant, and she had joined and left the army in circumstances where she obviously quickly realised the army was not for her. Following this experience and her mother’s reluctance to bring her home she found herself enrolled by her mother in a course of study at college, whilst at the same time working to earn money for her keep. While all this was happening she also found herself having to work in an environment where she was ignored by colleagues and felt unsupported. There is no doubt that these circumstances would be found to be challenging for most people. Added to this challenge was of course the enforced lockdown brought about by the pandemic which the claimant and her mother agreed had an adverse impact on her. From 7th March she did not attend work and was signed off work by her GP with ‘Anxiety State’ until she resigned in May. Thereafter she started to care for her grandmother and from 7th May 2020 there was no contact at all with her GP until 16 October 2020. It was the claimant’s evidence that she was not under pressure in the intervening period and was able to manage her own anxiety. The medical notes do not record the condition for which the claimant was asking for a fit note in October 2020 or indeed why she would need one as on the basis of the information that has been put before the Tribunal the first job the claimant had after leaving her job in May 2020 did not commence on 2 March 2021. There is reference to the fact that she had completed an online questionnaire but as mentioned above this has not been produced in evidence. It cannot therefore be said that this was a fit note related to the claimant’s anxiety as there is no reference to it being so in the medical records and there is no mention of it in the witness statements.[44]The next entry is 5th March 2021 when the claimant initially thought she may have Covid. On 9th March 2021 she consulted her GP via telephone to report that she was experiencing anxiety. Taking the 13th February 2020 as the first occasion when the claimant first contacted her GP I accept that the claimant has consulted her GP for this complaint on more than one occasion within a 12 months period, with the last being 7 May 2020 before the next one on 9 March 2021. However, I find that the consultations between 13th February 2020 and 7th May 2020 are linked to the same set of adverse events in the claimant’s life from which she was recovering during that period. I do not find that looked at in context it could be said that on the first occasion where it is recorded that the claimant has experienced anxiety, it is likely to recur, when asking the question of whether it could well happen again, The circumstances in which the claimant presented were compounded by the pandemic and consequent lockdown, and on the face of it from May onwards the claimant was able to adopt reasonable self-help strategies to assist her with feelings of anxiety.[45]In the circumstances, whilst I find that the claimant has had episodes of anxiety which have adversely impacted on her ability to carry out some of her day to day activities, these symptoms have been as a result of periods where adverse events have occurred in the claimant’s life and are not long term. Consequently the claimant is unable to satisfy the definition under s6 Equality Act 2010 and is not a disabled person for the purposes of that Act.[1]The claimant seeks a reconsideration of my decision that at the relevant time she was not a disabled person for the purposes of s6 Equality Act 2010 (“the Act”). There was some delay in this request being brought to my attention which is the reason why it is only now considered.[2]The application is made under Rule 70 of the Employment Rules of Procedure and was submitted within the relevant time period. It is requested in the interests of justice and to avoid the parties having to undergo a full appeal to the EAT.[3]The basis of the application is that on the claimant’s understanding of the Judgment, there has been an error of law in my approach because I have applied the wrong test and failed to consider whether the claimant has a recurring condition that would satisfy the test.[4]It was agreed between the parties that the relevant time for determination of whether or not the claimant was disabled for the purposes of s6 of the Act was 2nd to 19th March 2021.[5]In reaching my decision to allow the claimant’s application for a reconsideration I have carefully considered my findings and the evidence that was presented at the hearing. I find that paragraph 45 of the Judgment of 10th October 2022 is inconsistent with my overall reasoning in the Judgment and does not address all aspects of the test for disability. For this reason I have considered the matter again. I consider that the wording of paragraph 45 was an attempt to empathise with the claimant about the personal difficulties she had experienced and a desire to avoid detail of the same becoming a matter of public record.[6]Whilst I have considered the matter again, the substance of my findings and reasons as set out in the Judgment of 10th October 2022, remain unchanged save for paragraph 45 which is revoked. There was scant medical evidence presented to the Tribunal with reference to the claimant’s anxiety and the “anxiety state’ for which she was, for the first time, issued with fit notes to allow her to be absent from work between 18th March and 14th May 2020, is recorded in her medical notes under the classification of ‘minor’. In the Judgment of October 2022, I did not accept, and do not accept, the reason given by the claimant about why the she had not told her GP of the full extent of her symptoms and I found that both the claimant and her mother had significantly exaggerated the claimant’s symptoms as described to the Tribunal. The claimant accepted that she had not been prescribed any medication for her symptoms and nor had she wanted to take any. Similarly she did not wish to avail herself of counselling or other groups such as Healthy Minds because she did not believe they would work. She had instead taken steps to modify her behaviour and relied on self-help and herbal remedies to relieve her symptoms. The medical evidence relating to that time makes reference to the difficulties the claimant was experiencing at work, which is the reason why she does not want to go, but does not refer to any adverse effects on the rest of her life, and records how she has improved to the extent that now she reports that as she has now been paid she is able to attend the gym; In addition is also recorded that she is socialising with friends, all of which is inconsistent with the account of the claimant and her mother of her symptoms at that time. I also note that during the period in which she was issued with fit notes, which was at a time when the country was in ‘lock down’ during the pandemic, the claimant’s only contact with the GP was on one occasion when she was asked to contact them. There were no consultations, nor any recorded deterioration in her symptoms, and she was discharged from Healthy Minds without her ever having consulted with them. In those circumstances I find that the claimant’s modification of her behaviour reduced the effects of her anxiety to the extent they were no longer substantial and in oral evidence she explained how the routine of caring for her grandmother was good for her. For the avoidance of doubt, in reaching a conclusion that the steps taken by the claimant reduced the effects of her anxiety, I do not consider that the use of herbal remedies such as Kalms falls into the category of medication for the purposes of assessing the effect of the impairment on the claimant’s ability to carry out normal day to day activities.[7]The claimant’s next episode of anxiety was March 2021 and was originally mistaken by the claimant as being symptoms of Covid 19. Whilst this was subsequently recorded as a second episode of anxiety within a period extending beyond 12 months, anxiety is not a deemed disability for the purposes of the Equality Act 2010 and whilst it is an impairment, there is still need for the claimant to be able to satisfy the full definition, i.e. of it having a substantial and long term adverse effect on her ability to carry out her day to day activities, which for the reasons given above, she has not.