Employment Judge MartinIn person for claimantMs Meikle (instructed by Solicitor) for respondentDate 5 March 2019
JUDGMENT
[1]This Tribunal does not find that the claimant is disabled in accordance with the definition of disability under Section 6 of the Equality Act 2010. Accordingly his claim for disability discrimination is hereby dismissed. EMPLOYMENT JUDGE MARTIN
REASONS
[1]The claimant represented himself. Ms Meikle a solicitor represented the respondent. The claimant gave evidence on his own behalf. The tribunal were provided with a bundle of documents marked Appendix 1.[2]The law which the tribunal considered was as follows:[3]Section 6 of the Equality Act 2010 Section 6.1 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.[4]Schedule 1 paragraph 2 Long term effects (1) the effect of an impairment is long-term if (a) it has lasted for at least twelve months; (b) it is likely to last for at least twelve months or Case Number: 2501297/2018 2 (c) it is likely to last for the rest of the life of the person affected.[5]Paragraph 4 - Substantial adverse affects Regulations may make provision for an effect of a prescribed description on the ability of a person to carry out normal day to day activities to be treated as being, or is not being, a substantial adverse effect.[6]Paragraph 5 - Effect of Medical Condition(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. 6. The Tribunal also took account the Guidance on the definition of disability (2011). The Tribunal noted in particular paragraph (D)(3) - In general day to day activities are things people do on a regular or daily basis - 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 work- related activities, and study, 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 a shift pattern.[7]The Tribunal also considered the case of Anwar v Tower Hamlets College UKEAT/0091/10 and in particular were referred to paragraphs 21 and 24 which dealt with the issue about what amounts to substantial adverse effect. The EAT held that a Tribunal could conclude that an effect was “more than trivial” and yet still be “minor” as opposed to “substantial”.[8]The issues which the Tribunal had to consider were whether the claimant had a physical and/or mental impairment; what that impairment or impairments were; whether the impairment(s) had a substantial adverse effect on his ability to carry out normal day to day activities; whether the effect was substantial; and whether the effect was long term.[9]The claimant was recruited by the respondent as a workshop supervisor. He commenced employment on the 7th December 2017 with a probationary period. In the new starter form which the claimant completed for the respondent and which was signed by him at page 67 of the bundle, he was asked if he had any relevant medical condition. He stated “not applicable”. Case Number: 2501297/2018 3[10]The claimant produced a witness statement to the Tribunal for the hearing today to deal with the issue of disability. The statement has been taken into account, although it only deals to a very small degree with any issues relating specifically to whether or not he has a disability or disabilities.[11]The claimant also produced another statement dealing with his disability which is at pages 166 to 167 of the bundle. In that statement he indicates that he has physical and mental impairments. He refers to suffering from hypertension since 2007 and anxiety with occasional bouts of depression since 2000. He indicates that his physical condition is controlled with medication, but it can be a problem if he is put under extreme duress. He refers to the medication which he is on for hypertension. He indicates that he has been on medication in the past for anxiety, but did not require it at the time he started work for the respondent. He was subsequently prescribed another medication in March 2018, when he was suffering from anxiety due to the treatment he says he received from the respondent. At that stage, he was then put on to medication which he had taken on previously. He also refers to starting to receive counselling for anxiety depression and nightmares relating to his employment with the respondent.[12]The claimant has not produced any medical records to this tribunal, other than a short letter from his GP which is at page 154 of the bundle. In that letter, the GP states that the claimant has suffered from hypertension since 2007. He indicates the drugs which control that condition. The GP also refers to the claimant being seen by a GP, through a telephone appointment suffering from stress, after being suspended from work in March 2018. It refers to him feeling anxious and low and not sleeping and being unable to manage his day to day activities. It is noted that he commenced a particular drug for depression and anxiety at that time.[13]The claimant has also produced a further letter from his GP dated November 2018 which refers to him having pre-existing medical conditions being hypertension since 2007 and mixed anxiety and depressive order since 2000. It states that he is taking medication for his hypertension. The letter is at page 158 of the bundle. There are no details in either of the letters from the GP regarding the effects his condition(s) have on his ability to undertake normal day to day activities either with or without medication. Further, there is no indication of what problems the claimant was experiencing.[14]The claimant has also produced some correspondence from his counsellor, having attended counselling sessions following his dismissal. Those letters are at page 168 and 169 to 170 of the bundle.[15]In his evidence to the Tribunal, the claimant confirmed that he suffers from hypertension which is describes as high blood pressure. He said that he has suffered from this since 2007. He indicates that he takes medication to manage that condition. That could amount to a physical impairment. In his evidence, the claimant told the tribunal said that a lot of people suffer from high blood pressure like him. He referred to 40% of the population suffering from that condition. He said that it was not an uncommon medical condition. Case Number: 2501297/2018 4[16]He said that the medication which he takes for that condition is preventative. It is designed to prevent him from suffering from a more serious medical condition like a stroke or a heart attack.[17]In his evidence before the Tribunal the claimant explained what was involved in his job. He was responsible for putting in place the furniture workshop. He was involved in physical labour which included painting the floors, building and constructing units. He was also involved in organising people and equipment. He accepted in evidence that he had no problems undertaking those tasks, although he said he would have preferred some more help particularly with regard to the heavy lifting.[18]Throughout his evidence the claimant did not lead any evidence about the effect either his physical or mental impairment had on his normal day to day activities. On the contrary, his evidence to the Tribunal suggested that he did carry out normal day to day activities, for example he referred to walking his dog and driving. He said he had to drive over one hour to get to work.[19]When he was asked about the effect not taking the medication would have on his ability to do normal day to day activities, the claimant’s initial response in relation to the physical impairment was that he could still do normal day to day activities, but then subsequently, during his evidence on cross examination, indicated that his blood pressure would rise and he would not want to drive because of the pressure and stress. He did not indicate during his evidence any other effect not taking the medication would have on him being able to do his normal day to day activities.[20]The claimant also said that he suffers from anxiety and depression. He described the condition as reactive depression. He said that he suffered bouts often as a result of stress and conflict. He also indicated that half the population would be on anti-depressants at some stage.[21]He stated that he did take anti-depressants at times for this condition. In his evidence he said he suffered from this condition for many years, but did not suffer from it all of the time. He said that it would come in bouts. He said that he would get medication when he was suffering from a bout, but he would only take that for about a month at a time. He said that if he was suffering from anxiety or depression, he would go and see his GP, which is exactly what he did when he was suspended from work. He was put on a particular medication as noted by his GP. He said that he had problems with that medication and was then put on a different medication, which he said he had taken in the past. He also started counselling sessions following his dismissal. He said that he had found his dismissal a very stressful situation.[22]The claimant said in evidence that he was not on medication for anxiety or depression at the time he joined the respondent.[23]In evidence the claimant said that if he was suffering a bout of anxiety / depression and was not on medication he would suffer from low moods. He Case Number: 2501297/2018 5 said he would feel hopeless and in despair. He also said he would have problems sleeping and would not want to get out of bed. He didn’t say that he couldn’t get out of bed, but that he would not want to do so, which would be reflective of his mood. The only other evidence which the claimant led about the impact on his normal day to day to activities, if he was not medication at a time when he was suffering a bout of depression, would be that his concentration levels would not be as good as otherwise.[24]On the 5th of April the claimant wrote to the respondents with regard to his appeal. There is an e-mail from him at page 136. In response to a question he indicates that, with regard to his health situation, he states that he is in a very good state of health, but like many others takes blood pressure medication which controls it very effectively. He states that occasionally he forgets to take a tablet and can feel the difference and feels under pressure. He does not make any other reference to his anxiety or depression. He refers to seeing his GP about a month earlier. The indication from his e-mail is that the medication given to him in relation to his anxiety had assisted him. There is no indication that he is continuing to take that medication.[25]The respondent submitted that the claimant was not disabled. They said he did not suffer an adverse effect on his ability to undertake normal day to day activities and the effect was not substantial. They referred to the Equality Act and the Guidance to that Act, as well as the case of Anwar.[26]The claimant submitted that he was suffering from a disability or disabilities. He said that they were long-term and had a substantial effect on his ability to do day to day activities, in particular when he was not on medication.[27]This Tribunal reminded itself that the burden of proof is on the claimant. The claimant was not able to satisfy this Tribunal that he was disabled within the definition of disability in the Equality Act 2010.[28]The claimant suffers from a physical impairment - hypertension or blood pressure and a mental impairment of anxiety or depression. However neither of those conditions have a substantial adverse effect on his ability to undertake normal day to day activities. Indeed the activities which the claimant was undertaking at work were more extensive both physically and mentally than any normal day to day activities. The claimant led no evidence that he was unable to undertake normal day to day activities when suffering from either condition. Indeed his evidence was to the contrary, as he was in fact at the material time, undertaking normal day to day activities. He talked about driving and walking his dog.[29]He was asked about the effect of the medication in the case of his physical impairment. The claimant did not provide any evidence nor was there any evidence from his doctor of any effect the condition would have on his normal day to day activities if he was not taking the medication. Certainly there was no indication that it had a substantial effect on those activities. Case Number: 2501297/2018 6[30]As to his mental impairment, it was not clear that this was a long-term condition as on the claimant’s own evidence he suffers periodic episodes. His evidence was that he only took the medication for a short period of time like a month at a time. Although he suggested some effect on his ability to do normal day to day activities, it appears that those symptoms were limited to very short periods and then after a short period on the medication he carried on with his normal life. Indeed at the material time of his dismissal, he was not only undertaking normal day to day activities, like driving over an hour to work, he was doing more complex activities in managing projects as part of his job. Most of the time, his own evidence suggests that he was able to undertake normal day to day activities and his mental impairment did not impact on his ability to do so. The only exceptions being when he was having a periodic bout of anxiety. Then he would take medication for a very short period to resolve any symptoms. Therefore the impairment did not have a long term or substantial effect on his ability to undertake normal day to day activities.[31]For those reasons this Tribunal does not find that the claimant was disabled under the definition of the Act. Accordingly, his claims of disability discrimination are hereby dismissed. _____________________________ EMPLOYMENT JUDGE MARTIN[1]On 26 March 2019 the Claimant made an application for a reconsideration of the Judgment sent to the parties on 7 March and delivered orally at the hearing on 13 February 2019. Although the application for re-consideration was made late and without a request for reasons, the Tribunal decided to consider the application in the circumstances following the subsequent request for reasons. On 26 April the Respondent’s representative sent a response to that application and submitted that the application did not have any merit.[2]The Tribunal considered Rules 70 – 72 of Schedule of the Employment Case No. 2501297/2018 2 Tribunals (Constitution and Rules of Procedure) Regulations 2013; the Claimant’s application for reconsideration and the Respondent’s response.[3]The Tribunal determined that it could deal with the application without a
hearing.
[4]The Tribunal considered that the Claimant’s application for reconsideration effectively amounted to a request to reconsider evidence already heard by the Tribunal and upon which the Tribunal had already made findings of fact. It was merely an attempt to re-litigate a matter that had already been decided by this Tribunal, effectively in essence an appeal against the Judgment of the Tribunal and not a request for reconsideration.[5]The Tribunal determined that there was insufficient evidence to establish that the claimant was a disabled person by reason of either of the impairments upon which he relied at the hearing. During the course of the hearing, Employment Judge Martin sought to elicit information from the claimant about the effect of his alleged conditions on his ability to undertake normal day to activities, which was part of the test which had to be applied. This was to assist the claimant who was unrepresented, but he did not provide sufficient evidence to prove that he was disabled at the material time. In his application for reconsideration the claimant has not provided any new evidence, other than now suggesting that his main disability is his mental impairment, which was not the basis on which he led his evidence in the Tribunal. The Tribunal is mindful of the leading case of Ladd v Marshall [1954] EWCA CIV1, which sets out the guidelines for the introduction of fresh evidence, in particular that it must be shown that the fresh evidence could not have been obtained without reasonable diligence for use at the trial and the circumstances Case No. 2501297/2018 3 when granting leave to adduce new evidence must be very rare.[6]In considering any application for reconsideration, the Tribunal has to take into account the interests of both parties. It is in the interests of justice and the public interest that there should be, so far as possible, finality in any litigation, and cases should not reconsidered, as this application is seeking to do, by asking for a reconsideration of evidence upon which findings of fact have already been determined.[7]For those reasons the Claimant’s application for a reconsideration of the Judgment given orally on 13 February 2019 and sent to the parties on 7 March 2019 is dismissed.