Mr S Mutangadura v Transport for Greater Manchester: 2412088/2023
JUDGMENT
[1]The claimant was not disabled for the purposes of Section 6 Equality Act 2010 at the relevant time of the acts of discrimination complained of between August and November 2023.[2]His disability discrimination complaints are dismissed. His other complaints, religion, age and sex discrimination, proceed to final hearing.REASONS
[1]By a claim form dated 27 November 2023 the claimant brought complaints of disability discrimination relying on anxiety and low mood as his disability. He also complained of age, religion and sex discrimination. The respondent defended the complaint by its response form dated and sought a strike out application on the basis of the claimant having no reasonable prospect of establishing that he was disabled. The Tribunal declined to list a strike out application.[2]The matter came to a case management hearing before Employment Judge Anderson on 16 July 2024 when some complaints were withdrawn so that the remaining complaints were as follows: Discrimination arising from disability Failure to make reasonable adjustments[3]Harassment related to disability[4]Harassment related to religion[5]Indirect religious discrimination[6]Harassment related to sex[7]Harassment related to age 3. The respondent made an application for a preliminary hearing to determine whether or not anxiety and low mood amounted to a disability within the definition in section 6 of the Equality Act 2010 at the time of the acts of discrimination complained of which took place during the short employment from 14 August 2023 until 16 November 2023. Adjustments 4. Discussion at the outset of our case today led to adjustments for the claimant. The claimant can experience stuttering and chest pain when anxious. Mr Flood signposted clearly in advance the areas of cross-examination and his overraching argument on behalf of the respondent so that the claimant could anticipate what he might be asked. Mr Flood explained that his argument was that the claimant’s condition did not meet the test of “substantiality” from section 6 Equality Act 2010 at the relevant time. We agreed that breaks would be taken in response to any rising anxiety felt by claimant. In the event none, other than normal comfort breaks, were needed. The Issues 5. A list of issues had been prepared and was agreed for the final hearing. The relevant part of the list relating to disabled status is as follows 1) Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide: a) Did he have a physical or mental impairment: namely anxiety and depression/low mood? b) Did it have a substantial adverse effect on his ability to carry out day-to-day activities?If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment? c) Would the impairment have had a substantial adverse effect on his ability to carry out day-to-day activities without the treatment or other measures? d) At the relevant time, were the effects of the impairment long-term? The Tribunal will decide: i) did they last at least 12 months, or were they likely to last at least 12 months? ii) if not, were they likely to recur? Documents and Evidence 6. At the hearing today there was a bundle of 932 pages which had been sent electronically. Within that bundle were two Impact Statements from the Claimant and his Skeleton Argument. His Skeleton Argument was a detailed document using subheadings of the component parts of the Section 6 test and citing relevant authority. The claimant had not had legal help with that document, he told me he had undertaken research and prepared it himself. It showed me he was a capable and well informed litigant in person. His Impact Statements gave detailed chronologies of his working life from 2010 to present day. Other employment litigation 7. Mr Flood added to the bundle, by consent, a first instance Tribunal decision which had some relevance, though everyone agreed was not binding on this Tribunal.The Issues
[8]It was a decision in case number 2400235-2020 brought by the claimant against AO Retail Limited and decided by Employment Judge Macdonald and Mr Mockford and Ms Hillon. Broadly, it was about disability discrimination in a failure to recruit and appoint. The claimant gave oral evidence about his impairment. That tribunal decided that the claimant was not a disabled person at the relevant times of the alleged discrimination. His claims failed. As part of its reserved decision Judge Macdonald’s tribunal set out its full reasoning on disabled status, reviewing the claimant’s employment and the impact of his anxiety and depression on his ability to do normal day to day activities from 2016 – 2020.[9]The period of alleged discrimination in this case is from August to November 2023. There was no dispute in this case about the claimant’s impairment of anxiety and depression having been enduring for him. The parties agreed he had anxiety and depression that was getting better and worse from time to time, with his worst patch in 2015 /2016, but enduring throughout from 2015 to present day. There was no dispute about the long term effect of the impairment. The issue for this Tribunal was the substantial nature of its effect in August to November 2023.[10]Mr Flood argued that the Macdonald decision was relevant in relation to the claimant’s credibility and any areas of factual overlap with this case. The claimant flagged from the start that he did not think that decision relevant to this case at all. I agree. Even if Employment Judge Macdonald’s tribunal found that the claimant was not disabled and not wholly credible in 2020, that does not make the decision relevant for me in relation to the claimant’s disabled status and credibility in 2023 and beyond. I am obliged to Mr Flood for bringing the decision to my attention because of any potential overlap in factual findings I might make with those of Judge Macdonald’s tribunal. I do not find it necessary to make any factual findings earlier than 2022.[11]Mr Flood also brought to my attention other disability discrimination litigation by the claimant including representing himself at the Employment Appeal Tribunal. I have attached no weight whatsoever to the existence of other employment litigation for disability discrimination.Procedure
[12]There was some delay in starting the evidence because the bundle had been sent to the tribunal by both sides but had not been put on our case management system so I had not been able to read it before the hearing. We adjourned to allow time for the bundle to be uploaded and a little time for me to look into the impact statements.[13]Cross-examination took place between 11.15 and 1.20pm with breaks. We resumed at 2pm with 20 minutes of closing submissions from Mr Flood first and then around 40 minutes of closing submission from the claimant. Oral evidence[14]I heard evidence from the claimant. He gave his evidence in a straightforward way. He was keenly focused on the issues and able to respond not just with factual responses but with submissions and references to the bundle and his Skeleton Arguments and authorities, the contents of which he knew well. The claimant was able to advocate for the impact of his anxiety and depression on his ability to perform in a telephone customer or colleague facing role at work but less able to say how it had impacted him, what it meant he couldn’t do or could only do with difficulty, in other aspects of his life. The background to the 2023 allegations[15]In 2010 the claimant was falsely accused of money laundering at work and threatened with physical violence because of it. This was deeply distressing to him. A colleague had guessed his password and used it to steal from the employer. After that incident he continued to work for other employers and was a high performer. He had earnings in the region of £40,000 per 2011, 2012, 2013 and 2014. In May 2015 his mental health deteriorated rapidly. On 23 June 2015 his doctor recorded that he had attended the surgery for a stress related problem. The GP notes record that the claimant felt low and depressed most days, had broken and interrupted sleep and loss of enjoyment in life generally. The GP gave guidance about self help for depression, treated the claimant for high blood pressure and decided to review in two weeks time.[16]In 2015 the claimant went to work for ELAS for two weeks and was dismissed for poor performance. The claimant went to work for Ticketmaster in the autumn and worked until January 2016 when he was dismissed for failing his probationary period for poor performance reasons. The claimant went to his GP on 18 November 2015 for a depression review. Citalopram had helped, the GP recorded “some low days and some good days”.The claimant told his GP he was then in work with Ticketmaster that was not stressful. On 8 March 2016 the claimant was describing himself to his GP as well, taking 10mg citaloprman and still doing CBT. The GP recorded his mood was OK and stable. Then the claimant went to work for Verastar. On12 March 2016 he saw the doctor. He had been in a high pressure tele sales role for just one week. He told his GP he was worried about stammering, palpitations, being tremulous, experiencing tension in his neck and having panicky feelings. He had not met his targets in the first week and was very worried about a second week. He remained in that role for just three weeks before resigning. He had had three sessions of CBT. He then went to work for AQA but resigned because he found a permanent role at HMRC.[17]On 6 May 2016 the claimant saw his GP for a depression interim review. He was then well and on 10mg of citalopram. The doctor recorded “patient feels well”. In October 2016 the claimant resigned from HMRC to go and work at BT. He resigned from BT in February 2017. He had found dealing with angry customers on the telephone stressful and difficult. He then went to work for SERCO in an inbound sales role. In early February he had reduced his own citalopram dose from 10mg to 5mg and slowly stopped taking it at all. He was generally well in early 2017 working at SERCO.[18]On 2 May 2017 the claimant went to see his GP again. The GP recorded “history of anxiety and depression, had reduced citalopram and does not take any more. Has had CBT counselling.feels that mood and anxiety is much better than in 2015 than when first started meds….has coping mechanisms, describes is in a decent mood,. has positive thoughts for the future.” The claimant was in much better mental health than he had been in 2015. The claimant was socialising regularly with friends and going to the gym 4 or 5 times a week. The inbound sales role suited him but he told the GP that as he had a degree he was looking for a role more in line with his qualifications. He resigned his SERCO role in June 2017.[19]The claimant then went to work for AQA for a second time and then resigned in September 2017 for personal reasons not to do with his health. He brought a discrimination complaint against AQA.[20]In September 2017 the claimant joined The Claims Guys. This was a regulated sector and a data entry role. There was a colleague there with whom he would have liked to have a relationship but, after some initial warm responses to his kindness, she cooled on him and this made him feel socially awkward around her at work. He continued being able to go to work and do his job. In November 2017 he saw an OH specialist at work who reported He explained that overall he is well. He reports functioning at a normal level in terms of everyday activity. He explained that he still has some issues with anxiety when called to workplace meetings. Otherwise, he explained that he has not particular issues with psychological ill health He asked that if called in to a meeting with management…he would like to request that it is done in a manner which will not cause him to think that something bad is likely to happen in that meeting OH found him medically fit for work and recorded that he had never needed time off due to psychological ill health. He was able to cope and go to work and perform. OH could not exclude the possibility of future issues.[21]Throughout 2015 to 2017 when the claimant had been at his lowest with his mental health he was able to find job roles, apply for them online, engage in recruitment and selection processes including talking to agents on the telephone and attending face to face and Teams interviews, secure roles, go to work, run his home, go to the gym, socialise, shop, go to church and express interest a lady at work and form a friendship with her and buy her gifts and leave them on her desk at work. He lived alone and was sometimes sad that he did not have family nearby, particularly around Christmas time but he was able to run his own life. He was also engaged in litigation and able to represent himself and comply with case management orders and prepare for hearings in discrimination litigation and attend hearings. In February 2018 when it was clear that the lady did not want to have a relationship with him beyond friendship he resigned his role at The Claims Guys.[22]The claimant applied for a new role and was successful and went to work for Sainsburys in a recruitment role. Between May 2017 and May 2018, the claimant had not contacted his doctor and had not responded to 3 attempts by the doctor to review his blood pressure. On 29 June 2018 the claimant saw his GP who recorded Patient’s mental health has been affected, has been feeling anxious, triggers include difficulty with colleagues at work making comments, has been applying for a job with Home Office, during vetting process there was an issue which caused stress, patient is leaving the job due to the stress of it, sleep is broken, usually some 6 to 7 hours per night…. Has a few friends in Manchester, still wants to socialise, has times when feeling close to tearful…. Family are spread around the world…. Discussed citalopram… patient not keen to restart, patient asking for documents for employment tribunal[23]In July 2019 at the claimant’s request some of his medical records were sent to Gordon’s solicitors. The claimant had sued the Home Office. His claim subsequently failed. He appealed, succeeded in part, his case was remitted and dismissed,[24]In September 2019 the claimant’s employment with Sainsbury’s was terminated by the employer who told him that he was not working fast enough. On 30 September 2019 the claimant saw his GP who recorded that since he had lost his job at Sainsburys he was starting to get low again. The GP notes said history of anxiety and depression in the past, has been on antidepressants in the past, wants to avoid them for now… Discussed acute stressful life event, normal emotional response, positive mental health strategies, adequate sleep, exercise, eat healthy, mindfulness/meditation and communicating with friends or family he is close to and sharing emotions/feelings… Given info on online self-help resources… If still struggling and another 4 to 5 weeks or worsening mood not coping…see again for review[25]On 9 October 2019 the claimant contacted the GP to request form med three, as he had applied for universal credit. The GP recorded that the claimant feels since loss of job been more anxious in terms of job, finances, mood fluctuating between low and sometimes happy … Does not want to get back to go on medication, something horrible happened at work developed PTSD… Can work based on adjustments.[26]The GP issued form eMed3 citing anxiety and depression but saying the claimant may be fit for work. Findings of Fact from November 2022[27]The claimant was unemployed from September 2019 to September 2022 when he started working for IntraHealth. During this time he was engaged in representing himself in employment litigation against The Home Office. There was a trial at which he appeared in October 2022. In November 2022 the GP records show the following entry Over the years has suffered with anxiety and depression, over the past 2 to 3 weeks has become severe, ongoing issue with an organisation, an employment tribunal and currently going through appeal process…. Claim ongoing since 2018… Is working but has missed some time from work due to mood…… Data entry job… Mood has been low… Become very anxious and agitated… Worried how he presented to the judge will have affected decision… Tribunal won’t get together again until January…… Lives alone… Has support from friends… Sister supported him throughout trial… Has thought counselling would be helpful.[28]The GP issued a fit note saying the claimant was not fit for work from 28 October 2022 until 15 November 2022. The claimant was referred to the social prescribing service.[29]The claimant resigned from his work in November 2022. He resigned because of anxiety around his trial. On 17 November 2022 he had a telephone consultation with the GP. The claimant reported that he was feeling okay but had been struggling with his mood and the ongoing tribunal process. He told the GP he was receiving support from restart service who were helping him to find work. He told the GP he had an appointment with Be Well on 24 November 2022. The GP concluded the note feels positive -looking forward to securing a new job. Motivated++[30]The next review was on 21 December 2022 by telephone consultation. The claimant reported being anxious about being unemployed and his finances. He reported that the tribunal process was ongoing with papers having been submitted on 4 January 2023. He reported his mood as being 5/10 but could be worse. The claimant told the GP he was waiting for talking therapy via African and Caribbean Mental Health services. The GP practice contacted the claimant by text on 22 January 2023 to check up on him. There was then a further consultation on 26 January 2023. The claimant again reported struggling with unemployment and struggling financially. He reported that he had found out the previous day that his uncle died. The GP recorded still not wanting medication yet - wants to do counselling first the clinicians assessment was that the claimant was normal, chatty, responsive, low mood but was stable.[31]The next review was on 22 March 2023 by telephone consultation. This time the GP recorded that the patient engaged well was friendly, warm, not distressed unpleasant. Counselling had starte. The claimant was finding it helpful. The claimant was still job hunting but feeling that he was making progress, felt supported by his church, and reported his mood as “better”. The GP used the word euthymic to record that she assessed the claimant as being in the normal, tranquil and stable mood states neither manic nor depressive. objectively I felt patient was euthymic[32]On 19 April 2023 telephone consultation notes reveal that the claimant was again well engaged, pleasant, polite and reported feeling well, better and having a good mood. The claimant reported to his GP that he had had a job interview the previous day which had gone well that he was hoping to hear from the employer in the next few days.[33]On 15 May 2023 the African and Caribbean mental health services assessed the claimant and wrote to his GP. They wrote the current anxiety is linked to environmental factors regarding his employment status and antisocial behaviour close to his home address.[34]There was then no claimant initiated contact with the GP until 6 October 2023. The claimant was busy applying for a job role. He applied for over 100 jobs between spring and summer 2023. He applied for roles at the University of Salford and struggled in the selection exercise at interview and because of time pressure. Fact finding relevant to employment with the respondent[35]In summer 2023 the claimant applied for a Customer Support Officer role for the respondent. He applied through the guaranteed interview scheme. The key actions were to handle incoming enquiries via phone, email, letter, social media and any other contact channels. The claimant knew this to be a direct, up-front contact with customers role. The person specification for the role set out the essential experience, experience of dealing with customers or stakeholders by telephone with the ability to relay information clearly and concisely, delivering excellent customer service in all interactions. The claimant believed he could do that job. In response to the question Do you have a health condition that TFGM should be made aware of he wrote yes I have been experiencing anxiety and depression on the fluctuating basis ………..I kindly request a reasonable amount of extra time to complete tasks as necessary and extra time and patience in relation to me improving my overall work speed. I also kindly request that TFGM take into consideration that occasionally due to the fluctuating nature of the anxiety I may need switching from working on the phones to working on emails. Due to considerable workplace bullying which I have experienced, I also kindly request that if a manager approaches me this occurs in a way in which it does not look like something bad is about to happen.[36]The claimant found the reality of the job challenging. He struggled and failed to meet targets. On 24 August 2023 he told RF and MC, managers, that he was stressed taking calls. He told them that he had anxiety and that in the past when working for Sainsbury’s he had been taken off a telephone role. He asked if he could come off calls and deal only with emails instead. RF said that was not possible, the role was telephone based. On 29 August 2023 the claimant when dealing with a transport pass application thought that the facial expression of the person in the photograph for the pass was in some way an attack on him. He felt unwell, experienced nausea. Again on 4 September 2023 the claimant found working on the phones very difficult and when a customer was rude to him he ended the call. He believed himself to be taking a high volume of calls. On 11 September 2023 he felt physically uncomfortable with chest and back discomfort at work due to stress. He had difficult queries to deal with and he made a mistake, forgetting to charge a customer £10. He told MC about his mistake. He dreaded going into work on 12 and 13 September 2023. On 14 September he was very stressed at work when dealing with a difficult call about bus route 59. He took a rest break of his own volition and was chased by his manager KL as he was only at 70% of targets and needed to be over 90%. He told KL he had been stressed out. His target was amended that day. KL arranged for supportive training for him. He regularly sent emails to his managers saying that he was having a stressful and challenging day. He found working on the phones difficult. This caused him to be stressed and to worry, affecting his sleep patterns.[37]The claimant sent an email requesting reasonable adjustments to RF on Friday, 22 September 2023. He wrote as I am sure you are aware I have been adversely affected by anxiety. It affects me away from work and in my work duties on a fluctuating basis. I also experience depression which is often a result of the anxiety. These impairments have adversely affected me since 2015 on a fluctuating basis to the point that the effect they have been having on me is considered to be a disability. I have found working on the phone very stressful at times. This has happened a lot when I have tried to deal with difficult queries. I have been so stressed at times that I have gone on rest break on some occasions. Could it be arranged for me to work on emails and to not be answering phones please. I feel that switching to emails will be reasonable as working on emails would not have as much pressure. ….. Could it also be arranged for me to work three consecutive days per week and to start at 8:30 AM…. This would help me getting into a good routine, help me to work more effectively, help improve my sleep and would improve my mental health. For religious reasons could you please be arranged that I not work on Sundays…. I often attend church on Sundays and as I am a devout Christian I don’t feel comfortable working on Sundays. Having Sundays off would also help in regards to a mental health… During the meeting we had on 24 August I informed you about the anxiety and mentioned about wanting to come off working on phone calls and working on emails instead. When we met on 31 August I made you aware of me not wanting to work on Sunday due to being a Christian. I also informed you about me not wanting to work on consecutive days. You mentioned about making a request for adjusted hours to me in relation to working on Sundays working on consecutive days but I did not hear back from you….. I understand these are considerable requests for adjustments but I feel they are reasonable and necessary given the considerable stress that I’ve been experiencing due to working on the phone.[38]On 24 September the claimant struggled to deal with a customer that needed IT support to transfer a digital pass from an old to a new device. The claimant found 25 September 2023 stressful. He sent an email explaining what he though was a vast amount of difficult and stressful calls that he had had to deal with. He told MC that day that he had chest pain and dreaded going to work. On 25 September 2023 he began the one to one supportive training that KL had arranged. On 26 September RF acknowledged the claimant’s request for adjustments and forwarded it to CL as his team leader.[39]On 28 September 2023 the claimant met with RF and KL to discuss his request that he be taken off the calls and work with email only. He had also asked not to work more than three consecutive days and not to work Sundays. An appointment was made for the claimant at occupational health on 13 October 2023. The managers requested that OH address the following issue to fully understand why Sims has now said that he is unable to start at 7 AM in the morning, is requesting to work three days in a row instead of flexible working across seven days and why he is unable to work Sundays due to religious circumstances and feeling anxious.[40]OH was asked the following additional questions are there any times that Sims would not be able to work due to medical reasons? Sims currently works flexibly across seven days are there any number of days in a row that Sims would be unable to work due to medical reasons?[41]On 4 October 2023 the claimant went off sick. The OH consultation took place on 13 October 2023. The OH report said he reports workplace stressors that have led to a resurfacing of mental health symptoms. He describes more recent anxiety, low mood each day. He lacks some motivation to complete household chores. Work-related pressures have also triggered sleeplessness and the decline in his mental well-being.[42]The OH outcome was that the claimant was unfit for work for two weeks but was likely to return within 2 to 4 weeks. OH recommended a supported return to work three hours per day from home in the first week, four hours per day from home in the second week, five hours flexibly per day at home or office in the third week if operationally feasible the return to normal hours in the fourth week.[43]Notably, OH reported that the claimant had said that he would be open to a role that is not telephone-based. The OH expert recommended if operationally feasible I advised that management consider a non-telephone role. Similarly, OH recommended that if operationally feasible management consider that he works three consecutive days together.[44]On 16 October 2023 the claimant’s GP notes record that he had made contact with the GP practice via E consultation. He wrote I have been struggling at work due to anxiety and stress and I spoke to OH and they advised that I was not fit for work…… It is having an adverse impact on my livelihood… I would like to arrange treatment and I would also require a sick note.[45]On 18 October 2023 the claimant had a consultation with the GP. The claimant reported that his mental health not been very strong due to job stress, he had done counselling earlier in the year, he wanted to try counselling again before trying any medication. He told the GP that his appetite was normal, he was struggling with sleep due to stress and anxiety, that he had not be going to the gym as much but would restart his exercise program. He reported having an acute problem affecting his mental health and needing support. The GP checked his sources of social support and noted that he goes to church. The GP booked a follow-up appointment for mental health review.[46]On 19 October 2023 he met with Charlotte Lattin and Tom Evans at work, he told them that his mental health was okay at that time but that it is sometimes bad. He said that his anxiety is triggered by stressful events. The notes record he said he could be triggered into anxiety if someone comes at him in a threatening way. He said irate customers can trigger a panic attack or anxiety.[47]On 30 October 2023 there was a further GP review. The claimant reported that he has had a difficult year, struggled with anxiety and applied for over 100 jobs. He said that he finally had got a job with the respondent but that this was working on the phones and he finds this very stressful as he gets lots of angry customers. He told the GP he would sooner work on the email side of the business answering complaints. He explained that he had seen OH who had suggested working on the email side but that his managers had not agreed and this had made him more anxious. The claimant reported low mood but the GP recorded objectively I felt mood was euthymic .[48]On 8 November 2023 the claimant attended work but left again feeling anxious. He had had a disturbed night’s sleep because of anxiety about having to work on the telephones again and when he told KL that he had had no sleep she advised that he go home. The claimant called in sick on 9 November 2023. Later that day the claimant received a communication from work telling him that his contractual sick pay had expired and that he would receive statutory sick pay for the rest of November. On 9 November 2023 KL contacted the claimant and suggested a return to work for three hours between 9 AM and 12 noon on 13 and 14 November 2023 and the claimant agreed this. However, the claimant did not attend work on 13 November due to anxiety and having had little sleep. Later that day KL rang him to advise of a formal probation review meeting that was to take place on 16 November 2023.[49]On 16 November 2023 the formal probation review meeting took place with Ms Lattin and Mr Evans. At that meeting the respondent declined to adjust the claimant’s role to an email only role. Ms Lattin and Mr Evans told the claimant that they had concerns about his performance, his capability and his attendance. He had not passed his probation. On 16 November 2023 the claimant’s employment was terminated.[50]On 22 November 2023 the claimant was again assessed by the GP. The claimant explained that he had been anxious about going back onto the telephones and that his employment had been terminated and that he was claiming universal credit. The claimant again reported that he did not wish to take medication and that he preferred self-help.[51]On 27 November 2023 the claimant commenced these proceedings.[52]On 29 December 2023 Talking Therapies Counselling Service wrote to the claimant saying that following their last conversation he had been discharged from their service. He was referred on to the Caribbean and African Health Network. He had had some counselling from them in around March 2023 and was seeking further support from them.The Law
[53]Applying the relevant law, the definition (everybody agreed) is contained in section 6 of the Equality Act 2010 which provides “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.” The section goes on to provide that any reference to a disabled person is reference to a person who has a disability. The word “substantial” is defined in section 212(1) as meaning “more than minor or trivial”.[54]There are additional provisions about the meaning of disability in Schedule 1 to the Act. Under paragraph 5 of Schedule 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.” Guidance[55]Section 6(5) of the Act empowers the Secretary of State to issue guidance on matters to be taken into account in decisions under section 6(1). The current version dates from 2011. Section D of the guidance contains some provisions on what amount to normal day-to-day activities, and paragraph D3 provides: “In general day-to-day activities are things people do on a regular or daily basis, and examples include shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport and taking part in social activities. Normal day-to-day activities can include general workrelated activities and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents and keeping to a timetable or shift pattern.”[56]However, paragraph D8 of the guidance goes on to make clear that some highly specialised work activities are not included in day-to-day activities; examples given are watch repair work and playing the piano to a high standard of achievement. The guidance also includes an appendix which sets out an illustrative and non-exhaustive list of factors which if experienced it would be reasonable to regard as having a substantial adverse effect. Those factors include the following: Difficulty in getting dressed, in toileting, incontinence, difficulties preparing meals because of for example inability to open cans or inability to follow and understand a simple recipe, difficulty eating; being unable to coordinate the use of cutlery or because of an eating disorder, difficulty going out of doors because of a phobia, physical restriction or learning difficulty……persistent general low motivation or loss of interest, difficulty operating a computer, inability to converse or give or follow instruction, confused behaviour, intrusive thoughts or delusions, persistently wanting to avoid people, significant difficulty taking part in normal social interaction, avoiding taking part in normal social activities, persistent distractability or difficulty concentrating.[57]I also had regard to Goodwin v Patent Office [1999] from the EAT which set out the factors that I must address sequentially:(1) Did the claimant have a mental or physical impairment?(2) Did it affect the claimant’s ability to carry out normal day-to-day activities?(3) Was it “substantial”?(4) Was it long-term? (That was agreed in this case). Respondent’s Submissions[58]I heard submissions from Mr Flood on the basis (in effect) that the burden of proof had not been met in establishing that his condition met the test in section 6 of the Equality Act 2010 on substantiality. Mr Flood also quoted the claimant's own disability impact statement and reminded me that in cross examination the claimant had accepted that the impact at its highest had been responses to normal life stressors such as losing a job, engaging in litigation and bereavement.[59]Whilst the respondent expressed empathy for the claimant’s impairment, it categorised it as shyness, dislike of challenging phone calls and normal responses to life stressors and submitted that it was not “substantial” for the purposes of Section 6 at any time. Claimant's Submissions[60]I accept the claimant’s submission based on an authority he cited to me in his Skeleton Argument from Chacon Navas that his work forms part of his normal day to day activity. I accept the claimant’s submissions, citing Goodwin, that I must focus on the things that he could not do, or could only do with difficulty in assessing the substantiality of the adverse effect. I accept his submission citing Paterson that in deciding the cause of the impact on ability to do something and whether or not it is the impairment, that I compare him not with a non disabled average person but with what he can do and what he would be able to do without the impairment. Application of Law to Facts Did the claimant have a disability as defined in section 6 of the Equality Act 2010 at the time of the events the claim is about? The Tribunal will decide: Did he have a physical or mental impairment: namely anxiety and depression/low mood?[61]The claimant was diagnosed with anxiety and depression in 2015. In 2023 between August and November the claimant had the impairment of anxiety and depression. His anxiety had been evident in October 2022 as a response to his then trial. His anxiety dipped in the spring when he reported feeling well. The impairment for the purposes of the acts of discrimination in this case was evident in October 2022 and continued, though fluctuating in effect, through to dismissal in November 2023. Following Goodwin¸the claimant had the impairment of anxiety and depression. At the relevant time, were the effects of the impairment long-term? The Tribunal will decide: iii) did they last at least 12 months, or were they likely to last at least 12 months? iv) if not, were they likely to recur?[62]There was no dispute that the claimant had the impairment of anxiety from October 2022 to November 2023. The effect of his anxiety and depression was fluctuating but recurring sufficiently for it to be likely to recur and therefore be long term in August to November 2023. Did it have a substantial adverse effect on his ability to carry out day-to-day activities?[63]The relevant period of acts of discrimination was from August 2023 until November 2023. During that period I find that the claimant’s anxiety and depression did not have a substantial adverse effect on his ability to carry out normal day to day activities. Following the second question in the structured approach from Goodwin, normal day to day activities include going to work and dealing with difficult calls at work. I accept his evidence that he found the calls difficult and stressful.[64]The claimant gave very little evidence or detail as to what it was of his normal day to day activities that he could not do or could only do with difficulty because of his impairment. I summarise his arguments as follows:64.1 The claimant submitted that his anxiety and depression affected his ability to maintain employment. He wanted to persuade me that not being able to hold down employment post 2015, the history is in the facts above, was proof that he must have been disabled. I reject that thinking. To say I couldn’t keep a job because I got anxious about parts of the job that were pressured and then to conclude, because I can’t keep a job I must be disabled, is flawed thinking. It is not how I must apply the law in Section 6. Maybe the claimant was seeking jobs that were not a good fit for him. There may be other reasons too why his employments were short lived; factors to do with location or motivation or economic factors. It is not for me to find the cause of his intermittent employments. I reject his submission that his work history of itself was evidence of substantial adverse impact of his impairment.64.2 The claimant submitted that his impairment affected his communication on the phone. I accept that he found some of the calls at work challenging. But he was able to deal with them. I saw evidence of him resolving issues that customers had raised, such as the digital pass issue or the route 59 issue. I was concerned that the effect he claimed of the impairment was not persistent; that the impact on work calls was different from the impact on calls in his personal life and in seeking employment. In response to cross-examination and a question from me he accepted that he used his phone outside of work and used it in recruitment and selection processes. Those are pressured / quasi-work situations. The claimant did not say that he found use of the phone in recruitment and selection calls such as with agents difficult. He did not cite that as evidence of substantial adverse effect of impairment. That gave me concern that the claimant may be focusing on the impact of work calls because he did not want to do calls based work. The claimant accepted he did not want to do calls based work. His employment history showed, on his own submission, that the more challenging cold call and selling or complaint handling calls based work had not gone well for him, he had preferred in-bound sales work and his recruitment role at Sainsbury’s.64.3 The claimant submitted that his impairment had an adverse effect on him carrying out tasks at work, using a computer, carrying out work activities and following instructions. Specifically, he said it made it difficult for him to keep to adherence, that was meeting his targets on work phone calls. His evidence lacked detail on these points. Beyond the assertion that is was difficult for him he did not explain how anxiety and depression affected his targets. I saw evidence in the bundle of him assisting customers, carrying out tasks, using email on his computer and following instructions such as attending meetings and conveying information to customers. I saw his request for reasonable adjustment emails to his managers. He wrote persuasively and articulately, advocating for himself in relation to changing his job role, agreed working pattern and days. I find that between August and November 2023 anxiety and depression did not have a substantial adverse impact on him using his computer and following instructions. 64.5 Outside of work he said anxiety affected him with poor sleep. I have no reason to doubt his evidence of poor sleep but what I cannot say is that poor sleep, of itself, or taken with the other impacts claimed above, was a substantial effect of anxiety and depression. The claimant was clear he wanted to work on emails only / 3 days a week / late starts and not work Sundays and was not getting what he wanted from his managers. It may be, and this is more likely because his GP records evidence his stress around the litigation he was involved in, that his disturbed sleep wasn’t because of his worry about his litigation. 64.6 The claimant also submitted that his anxiety affected his ability to form a relationship and in dating. The evidence he gave about relationships with women did not relate to August to November 2023. It was not in the relevant time period in which I was assessing impact of impairment on ability to carry out normal day-to-day activities, though I have no reason to doubt that he had those difficulties and that they persisted into 2023. The claimant set out in his impact statement and oral evidence, approaches that he had made to women with whom he would have liked to have had a relationship. One of those scenarios was work based, another at church. The claimant described himself as having an unhealthy fear of rejection. He described the enormous efforts he made to overcome anxiety about approaching women. He described kind things that he had done for example in writing messages in cards and leaving gifts. He told me the embarrassment he felt when his approaches were not warmly received, or his feelings not reciprocated. I accept that his embarrassment may have been greater or more deeply felt that another man’s but I do not accept that his embarrassment and fear was greater when his anxiety and depression were at a peak. He was always by his own account embarrassed and fearful of rejection. His GP records show that he had declined citalopram because of side effects including impact on libido. This shows me that despite his fear and embarrassment he was, quite rightly, hopeful and optimistic about having a relationship. I reject his submissions that his discomfort and shyness in approaching potential partners was evidence of a substantial adverse effect of anxiety and depression. What matters is that he was able to make the approaches. His anxiety did not stop him. Without wishing to denigrate his felt experience and the courage it must take to engage with a potential partner with a view to dating, or the courage it must have taken to tell me about it, I find that for the purposes of disabled status the impairment’s effect on his ability to make the approach was not substantial.[65]Elsewhere in his life in 2023 he was able to engage in difficult and challenging encounters. His impairment did not stop him nor make it difficult for him to apply for jobs, engage with recruitment agents by telephone, do selection processes and obtain employment. He told me had had applied for many jobs, he told his GP over 100, in spring 2023. In his application for the role with the respondent he was able to clearly articulate his anxiety impairment and his needs. He was able to meet with managers in August 2023 to ask for reasonable adjustments and to articulate arguments for reasonable adjustment.[66]There was no engagement with his GP when he was having a difficult time with calls at work in August and September 2023. From October 2023 he was able to engage in telephone consultations with GP. He ran his life; living alone, washing, dressing, shopping, maintaining his home, eating well. He went to the gym, kept in touch with his sister and his church mens’ support group. He was able to run litigation, in late 2022 attend his trial and in 2023 run his appeal to EAT.[67]The effect of his impairment was not persistent, it seemed to only or mainly manifest in relation to work related difficult calls. I had concerns about the claimant’s credibility because of this. I had concerns that he had applied for a telephone based job working over 7 days, flexibly, including early starts and Sundays. He got the job then wanted to change it to be an email only job, starting later, working only three consecutive days a week and not working on Sundays. I am concerned that he sought to establish a disability so as to change the role he had attained to perfectly fit his own preferences and so as to avoid the more challenging or stressful parts of the role. I find that the on the oral and documentary evidence I have heard and seen and from the facts as set out above the effect of his anxiety and low mood/ depression between August and November 2023 was less than substantial. Would the impairment have had a substantial adverse effect on his ability to carry out day-to-day activities without the treatment or other measures?[68]The claimant had taken a very low dose of citalopram, 10mg reducing to 5mg until February 2017. He also managed his own health with exercise and contact with friends and through engagement with counselling and his church. He is to be commended for that. He took no medication after 2017. The claimant was not receiving treatment between August and November 2023. He declined medication that was offered to him in late 2022. He had had counselling around March 2023 and had found that beneficial. That course concluded. The claimant applied for over 100 jobs around that time. He obtained his role for the respondent and started work in August 2023. He was dismissed from the Talking Therapies service in December 2023.[69]If he had not had counselling in 2023, not been self-managing, would the impact have been substantial ? I find that would not have been the case. The counselling was for a short period. The GP notes were persuasive. Despite the claimant reporting low mood the GP observed and assessed him as being “euthymic”; of normal, stable mood without mania or depression in October 2023 right in the middle of the relevant period. OH also assessed him at that time as being unfit for work for just two weeks and then expecting a return and only advocating for him not to do calls if operationally feasible.[70]At no point in 2023 was the adverse, long term impact of the impairment substantial. As that effect is not made out, the disability discrimination complaints now stand dismissed. Approved for promulgation by