Mrs S Crow v The Commissioners for HM Revenue and Customs: 2501004/2024 and others
EMPLOYMENT TRIBUNALS
Case No 2501004/2024
Between
Mrs S. CrowClaimantThe Commissioners for HM Revenue and CustomsRespondent
Before
Employment Judge T.R. SmithDate 9 January 2026
REASONS
Abbreviations. EQA10. The Equality Act 2010. The Guidance. A document entitled “Guidance on matters to be taken into account in determining questions relating to the definition of disability (2011).
The issues
[1]At a hearing held on the 31 March 2025 Employment Judge Martin set this matter down for a public preliminary hearing , inter alia to determine the following issues: –• whether at the material time, that is the time when the alleged discriminatory acts took place the claimant was a disabled person within the meaning of section 6 EQA 10 in respect of her condition of diplopia (double vision)• whether prior to 29 April 2024 the claimant was a disabled person within the meaning of section 6 EQA 10 in respect of anxiety and depression. The respondent conceded that she was a disabled person after that date.
The evidence
[2]The tribunal heard affirmed evidence from the claimant and also had before it an agreed bundle of documents totalling 703 pages .That had been supplemented pursuant to an order Employment Judge Aspden dated 22 December 2025. The additional documentation were unpaginated. 3.A reference to a page number is a reference to a page in the bundle. The tribunal should record that in terms of the diplopia there was virtually no challenge as regards the effect of the impairment on the claimant’s day-to-day activities. Much of the challenge to the claimant’s credibility arose in respect of the anxiety and depression. The tribunal has not recorded each any every piece of evidence it was taken to in the is judgement. That should not be taken to mean that such evidence was not given due weight. Diplopia[4]The respondent’s challenge was precisely defined. 5.The respondent argued that paragraph 5 to schedule one of EQA10 did not apply, relying upon the provisions of paragraph 5 (3) (a). 6.It is helpful to repeat paragraph 5 in full. “Effect of medical treatment 5(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if—(a) measures are being taken to treat or correct it, and(b) but for that, it would be likely to have that effect. (2) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid. (3) Sub-paragraph (1) does not apply— (a) in relation to the impairment of a person's sight, to the extent that the impairment is, in the person's case, correctable by spectacles or contact lenses or in such other ways as may be prescribed;”[7]It was conceded that if schedule one paragraph 5 (3) (a) was not engaged the claimant was a disabled person within the meaning of section 6 of EQA 10 at the material time. Diplopia Findings of fact and discussion[8]The tribunal began by noting that at no stage had claimants’ eyesight been certified such that she fell within the provisions of the Equality Act 2010 (Disability) Regulations SI 2010/2128. Had she so been, that would have been fatal to the respondent’s contention.[9]As she was not, paragraph 5 (3) (a) was potentially in play 10.The tribunal concluded that the intention of Parliament in drafting paragraph 5 (3) (a) was that conditions such as short or long sightedness, which could be corrected by spectacles or contact lenses, could not amount to a disability within the meaning of section 6. The section appears to extend to other sight related conditions, see PP -v- Trustees of Leicester Grammar School 2014 UKUT 520 ( a none employment case). 11.The tribunal therefore found the paragraph as drafted and having regard to PP, was wide enough to include diplopia. 12.To better understand the meaning of paragraph 5 (3) (a) the tribunal has taken into account, as it must, the Guidance.[13]If a person’s vision with spectacles or contact lenses is still impaired to a degree that substantially (which means more than trivially) affects the person’s normal dayto-day activities, then and only then, are they potentially disabled within the meaning of section 6 EQA 10, see B15 of the Guidance. 14.Mr Tinnion argued that the wording of paragraph 5 (3) (a) extended to also cover the possibility of successful surgical intervention. The tribunal did not accept that submission.. That is not what the paragraph says. Other than the reference to spectacles or contact lenses no “other ways as may be prescribed” have been prescribed by the Secretary for State. 15.The tribunal made the following findings of fact relevant to the issue it had to decide in respect of diplopia. The evidence was not challenged. 16.The claimant was first diagnosed with diplopia in about March 2021. She had problems with her vision and attended her optician who in turn referred her to the local hospital. 17.The claimant was subsequently prescribed prisms for her spectacles. 18.The evidence before the tribunal was that while this may totally alleviate diplopia in some people, it does not work for all people. The tribunal found it did not work for the claimant. 19.The severity of the diplopia in the claimant’s case was such that the claimant’s driving licence was revoked by the DVLA that same year.[20]The claimant’s driving licence remains revoked to this day. She is not able to legally drive, either with spectacles or contact lenses. 21.In the claimant’s case with her diplopia she experienced particular challenges with depth perception, reading ,and motion sickness, even when wearing spectacles or contact lenses. 22.In November 2021 the claimant and her husband had to purchase a large 65- inch television because the claimant had difficulty reading subtitles on a standard television screen even with spectacles or contact lenses. 23.In February 2022, whilst the claimant was employed by the Department of Education, her employer purchased a large monitor and web camera, as the claimant could not read text on a standard 24-inch monitor, even with spectacles or contact lenses. 24.The claimant had difficulties even when wearing spectacles with touchscreens, for example to place an order at McDonald she had to place her head 2 to 3 inches from the screen in order to read the text. 25.The claimant suffers from motion sickness and nausea in certain circumstances even when wearing spectacles or contact lenses . For example the claimant would suffer motion sickness when travelling with her husband, even a short distance of under a mile, in his car, to see his parents. 26.The claimant had only been to the cinema on two occasions since 2021 and that was to entertain her young daughter. She experienced nausea and double vision. 27.The claimant cannot play video games with her daughter because it triggers motion sickness. 28.The claimant utilised the RNIB to obtain books. 29.The claimant relies upon her husband to read her post to her. 30.The claimant had asked her bank to provide all communications in a digital format so she can magnify any correspondence received on her computer. 31.The claimant had considerable difficulty in using public transport because she was unable to make out the destination signs on the front of a bus. She frequently had to ask people for help or had to be met. 32.The claimant took lifts in buildings because of the difficulties she experienced with depth perception .Whilst she could use stairs she normally asked a work colleague to hold her hand. 33.Prior to starting employment with the respondent a health screening was undertaken and the respondent was advised the claimant required a large monitor screen with a built in anti-glare, in order to be able to read text. 34.The respondent operated an electronic communication system known as “SLACK.” The claimant was unable to read lengthy messages on SLACK using a mobile phone because, even with spectacles or contact lenses, the text appeared blurred. 35.The claimant was advised to undergo a surgical procedure on her eyes. It was anticipated this would address a number of condition and improve the claimant’s diplopia. The operation took place on 27 January 2024. The claimant asserted it actually made her diplopia worse. The tribunal found that credible given that she had remedial surgery on 26 September 2024. 36.There are two matters which are outside the material period which the tribunal considered enhanced the claimant’s credibility in respect of her diplopia. In doing so the tribunal has not fallen into the trap of making the assessment of the claimant’s disability as at today’s date, but rather as at the material time. 37.The two credibility matters which were supportive of the claimant were as follows. 37.1.The first was a letter dated 17 April 2025 from South Tyneside NHS Foundation Trust. The treating doctor noted “seen by OO [ ie ophthalmologist] Jan 25-advised cannot be corrected with prism and referred to clinic” Whilst Mr Tinnion submitted this was effectively self-serving evidence and carried no weight because the treating doctor was recording what he had been told, that did not persuade the tribunal that it had no weight. The tribunal reached that conclusion because following an examination the treating physician noted “very poor convergence”. Convergence is necessary, of course, to prevent double vision That was consistent with the claimant’s account that her condition had not been corrected either by spectacles, contact lenses or subsequent surgical interventions (500 to 502) 37.2.The second was an observation the tribunal made. The claimant had printed out the bundle in A3 format. She wore glasses. She needed assistance from her husband to find information and on occasions, information had to be read to her. 38.The tribunal has made a holistic assessment looking at what the claimant could not do, or could only do with difficulty. The claimant suffered a substantial effect on what were clearly day to day activities. 39.The tribunal has concluded, with little hesitation, that the claimant had discharged the burden of proof on her and that the claimant’s ability to carry out normal day-today activities was at the material time substantially impaired even when wearing spectacles or contact lenses. Thus paragraph 5 (3)(a) of schedule 1 to the EQA 10 was not engaged. Anxiety and depression Findings of fact and discussion 40.Again it is necessary to explain that the dispute between the parties was narrow and well defined . 41.It was the claimant’s case that she was a disabled person by reason of anxiety and depression from 18 September 2023 (and not her start date) whereas the respondent’s position was that she was not a disabled person until 29 April 2024. 42.The narrow ground that disability was disputed by the respondent was that prior to 29 April 2024 the claimant had not established that the condition had a long-term adverse effect and in particular that it was “likely to last for at least 12 months.” 43.The tribunal began by reminding itself that the claimant carried the burden of proof . 44.Disability is defined in section 6 EQA10 in the following terms: – “(1) A person (P) has a disability if- (a) P has a physical or mental impairment, and(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day to day activities.” 45.This definition is further clarified in schedule one, part one of the EQA 10. 46.What constitutes a long-term effect is defined in schedule one, part two of the EQA 10 as follows: – “(1) The effect of impairment is long-term if – (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected.” 47.The claimant must establish she was a disabled person at the time at which the alleged discrimination occurred and the tribunal must ask whether the effect of the impairment had lasted 12 months by that date, or, if not, whether at that date it was likely that it would have lasted 12 months, see Tesco Stores Ltd -v- Tennant [2020] IRLR 363. 48.In looking at whether an impairment had a long-term effect the tribunal had to consider the likelihood of re-occurrence and the likelihood of re-occurrence meant “could well happen”, see Boyle -v- SCA Packaging Ltd 2009 IRLR 746. The likelihood of re-occurrence was the likelihood of the re-occurrence of the effect, and not of the impairment, see Sullivan -v- Bury Street Capital Ltd [2020] IRLR 953. The same case established that the fact that there had been a reoccurrence in the past did not mean it should be assumed that it would re-occur again in the future. 49.In view of the very narrow issue the tribunal only made specific findings in respect of the same. It is for this reason that the tribunal found it unnecessary to refer to much of the evidence placed before it. 50.The claimant had two previous episodes of lowered mood, the first in 2016 and the second in 2020 as a result of life events that would impact upon any person . The incidents consisted of the death of a relative and a miscarriage. The claimant was prescribed antidepressants for a relatively short period and did not take any time off work. 51.The claimant described her mental health as the stable and resilient prior to joining the respondent. 52.When the claimant commenced employment with the respondent she was aged 33. 53.Between September 2023 and 11 January 2024 there was nothing in the GP documentation to demonstrate the claimant was prescribed any antidepressants (416).However from 28 November 2023 to 16 December 2023 the claimant was signed off by her GP with anxiety and low mood. 54.When she saw her GP on 28 November 2023(370) she attributed her health condition to difficulties with her manager. Thus she perceived that work was the trigger. There were no other stressors. The GP raised the possibility of “Talking Therapies”. The claimant did not access the service at that time. There was no record of any medication being prescribed to the claimant in the GP records. The GP recorded the claimant had no thoughts of self-harm. 55.The claimant was referred by the respondent to occupational health and a telephone consultation was undertaken on 11 December 2023. (The tribunal reminded itself that much of what was in that report was what the claimant said. Where a factual dispute has arisen the tribunal preferred to rely upon the medical evidence available to it.) 56.Occupational health observed the claimant perceived she had work-related stress. Occupational health considered this was not primarily a medical difficulty but an issue between the claimant and her management and a workplace discussion or, if necessary, an escalation to formal mediation was recommended ( 423 to 425). 57.The claimant was offered the opportunity of contacting an internal support service known as PAM Assist. There was no evidence before the tribunal that the claimant considered her situation was such that she needed to access the service and nor was there any explanation why she did not. 58.On 11 January 2024 the claimant was prescribed just under 10 days’ supply of Propranolol. Propranolol is a beta blocker and can be prescribed to reduce the physical symptoms of anxiety. The claimant was prescribed this medication because as she accepted in cross examination, she was anxious as regards an eye surgery operation planned for 27 January 2024. The prescription was not repeated in the period the tribunal was required to examine. 59.The claimants GP, Dr Kendall-Holmes who the claimant accepted was her habitual GP and aware of her medical condition, was required to provide information to the organisation undertaking the claimant’s eye surgery. He did so on 11 January 2024 (371). Whilst the tribunal has noted that the information required the doctor to address a number of tick boxes there was provision for him to include or attach any information that he considered relevant. In terms of the claimant’s current health he said “I would characterise [her] condition to be inactive, mild, stable and/or well- controlled” 60.Whilst it is true the claimant was absent and signed off from 19 January to 16 February 2024 the fit note was not placed before the tribunal and on the balance of the evidence the claimant was absent principally due to her eye surgery. 61.In her evidence the claimant made reference to suicide attempts in the relevant period. 62.There is no reference whatsoever to this in the claim form. 63.The claimant had provided extremely lengthy further particulars (50 to 79).What she said in that document about suicide was that she was concerned about a telephone meeting she was to have with management on12 January 2024 and telephoned the Samaritans. During the meeting she said she told the respondent’s that as she was on a PIP the thought of her losing her job made her life not worth living. She then said that following the conclusion of the call her husband called the emergency services.(61). There were no other specifics. 64.There was no overdose. There was no self-harm. There was no admission to hospital. 65.The reference to the emergency services is rather emotive and has the potential to give a misleading impression. What actually happened was the claimant’s husband made a phone call and about 9 o’clock that night received a phone call back from a mental health practitioner. 66.The only evidence before the tribunal of any medical intervention was a telephone triage form ( 426 to 430) which showed the claimant had contacted Cumbria Northumberland Tyne & Wear NHS Foundation Trust on 12 January. The practitioner recorded that the claimant believed that her manager was making inappropriate comments and smirking at her. She told the practitioner she had been prescribed Sertraline, an antidepressant for 2.5 months but that was not borne out by the GP prescription records. 67.The claimant was recommended to speak to her GP to consider medication and other than an agreement to refer the claimant to Talking Therapies there was little of note. It would appear the claimant started to attend Talking Therapies in about March 2024. In fairness to may have been a waiting list. 68.The GP records made no reference to this incident. 69.There is no reference in the records the claimant subsequently consulting her GP in respect of the incident. In fact the only record of any GP appointments between 28 November until 15 April 2024 was in respect of her diplopia and an injury to her finger .The notes recorded that she was “managing work” (513). No significant mental health concerns were recorded. 70.There is no report from Talking Therapies. 71.The claimant said it her impact statement that she badly bruised her leg on 24 April by stabbing it because she experienced “mental health pain” (344). That is a long way from a suicide attempt 72.It is proper to record that the respondent’s occupational health report of, 24 January 2024 did opine that the claimant was a disabled person within the meanings of the EQA10. However there are two observations to be made. The first is the opinion was based on what she told the practitioner, which is not fully supported, or appears an exaggeration of what the independent documentation showed, and secondly the assessment of whether a person is disabled is a legal and not a medical decision. The tribunal applied the same considerations to subsequent occupational health reports of 20 February 2024. 73.One final relevant fact is that evident from the list of issues the claimant’s principal concern related to her management by a Ms Bates. However a Mr Lovat took over responsibility for the team from 05 April 2024. 74.The tribunal then addressed the issue it had to determine based upon the above findings. 75.For completeness it should say that at the material time the claimant’s condition was not long-term as it did not last 12 months. 76.As the tribunal have already noted the key issue was whether the substantial adverse effects were likely to last 12 months and that assessment had to be made at the material time and not the date of the tribunal hearing. Anything that occurred after the relevant time was irrelevant, see paragraph C4 of the Guidance. 77.A fact specific analysis must be undertaken. 78.Significantly there was no medical evidence before the tribunal that the claimant’s condition was likely to re-occur. 79.Whilst the claimant had previously had two to brief periods of anxiety and depression those appeared to be perfectly normal reactions to distressing life experiences. The claimant had made a full recovery and had no particular vulnerability. She herself accepted that when she commenced employment with the respondent she was in a sound position in relation to her mental health. 80.Whilst the claimant may honestly consider she was extremely ill up until April 2024 that is simply not supported by the independent documentation. 81.The only prescribed antidepressants in the relevant period were because the claimant was nervous in respect of eye surgery. 82.She only had one period of absence directly related to anxiety and depression and that was relatively short-term. 83.What has been described as a suicide attempt has been exaggerated. 84.If the claimant really was as ill as she now perceive she was it was surprising she did not visit her GP in respect of anxiety and depression between 12 January and 28 April 2024. The only visit the did occur was for an entirely different matter on 15 April and she was “managing work” .That is entirely consistent with the information the claimant’s GP supplied in January 2024 to the institution that was to carry out the claimant’s eye operation. 85.Whilst the tribunal would accept that the claimant’s chief protagonist, in her opinion, Ms Bates remained there had been a change in management structure which was highly likely to have reduced the claimant’s perception of the way she should been treated. In addition there was the possibility that mediation which on the evidence placed before the tribunal had not been tried. 86.Anxiety and depression is a condition which may be relatively transitory or longterm. The claimant was a relatively young healthy woman who had fully recovered from two serious life events in the past. There was no recent evidence of a particular susceptibility to depression and/or anxiety. There was no reason to believe that she would not have recovered fully again. 87.The tribunal reminded itself that the phrase “could well happen” was a relatively low hurdle. It was lower than, for example, likely to happen. Applying what was known at the time and the above legal test the effect of the claimant’s anxiety and/or depression was not likely to last for more than 12 months. The fact it appears to have done so beside the point. 88.For completeness given the EAT in Mc Kechnie Plastic Components -v- Grant 0284/08, said the tribunal must look at all three scenarios envisaged by paragraph 2 (1) it also very briefly deal with whether the condition was likely to last for the rest of the life of the claimant. The tribunal had no hesitation in finding this was not engaged principally because that was not the case argued by the claimant.