Mr A Kaminski v Amazon UK Services Ltd and Y Scollard: 2601409/2023 and 2602075/2023
EMPLOYMENT TRIBUNALS
Case No 2601409/2023, 2602075/2023
Between
Mr A KaminskiClaimantAmazon UK Services Ltd and Y ScollardRespondent
Before
Employment Judge N WilsonMr Kaminski (with the assistance (instructed by a HMCTS appointed) for claimantMr. Paul Sangha (instructed by counsel) for respondentDate 10 July 2024
JUDGMENT
[1]The claimant has established that he was suffering with a disability within the meaning of s.6 of the Equality Act 2010 [EQA] and his complaint of disability discrimination therefore proceeds to be determined at the full merits hearing of his claims.[2]The claimant has established the following visual impairments at the material time: Page 1 of 16[3]The claimant has established the following mental health impairments at the material time: a) Anxiety b) Depression
REASONS
[1]The claimant has issued two claims. The first claim includes several complaints of discrimination including direct disability discrimination and the second claim includes a claim for constructive unfair dismissal. The claim for constructive dismissal stands struck out pursuant to an earlier Judgment. At the time of bringing his first claim he was still employed by the first respondent.[2]The claimant was employed with the first respondent as a fulfilment centre associate from 5 October 2021 until he left his employment on 19 June 2023.[3]The claimant was absent from work for a number of reasons including his wife’s pregnancy. He had an occupational health (OH) assessment undertaken on 20 May 2022. During the assessment the OH consultant suggested several adjustments which should be made to enable him to continue his employment. These related mainly to his visual impairments and his arthritis.[4]On 1 June 2022 whilst at work the claimant suffered from chest pains and had to clock off work early. He was then off work until 4 August 2022 when he attended a meeting which was described as a Transitional Work Adjustment (TWA) meeting. The reason for that meeting was to discuss the Occupational Health Report referred to above.[5]There had been a further OH assessment held before the TWA meeting on 1 August 2022 and a second OH report suggested further adjustments.[6]At the meeting on 4 August 2022 the claimant was told that the suggested adjustments were not reasonable and that there were no other vacancies available for him at his level. The claimant was suspended from work; “due to health and safety concerns regarding the claimant’s ability to work safely”.[7]On 31 August 2022 he was invited to an Informal Health Review (IHR) which would be held on 2 September 2022. Mr Kaminski refused to attend this meeting and then raised a grievance on 2 September 2022. Page 2 of 16[8]The grievance included several matters including a breach of his data protection rights, lack of support and contact from his HR team and sharing of his personal and medical information. His grievances were not upheld by his employer nor was his appeal in relation to the outcome. Impairments[9]The claimant has provided a 28-page Disability Impact Statement. He was given permission to update and amend his original statement on day 1 of this preliminary hearing which had been listed for 3 days. Physical Impairments – eye conditions[10]The claimant relies on the following physical impairments relating to his eyes at the material time: d) Astigmatism Physical impairments[11]The claimant relies on the following physical impairments at the material time. a) Rheumatoid Arthritis b) Osteoarthritis c) Chondromalacia patella Mental Impairments[12]The claimant relies on the following mental impairments at the material time: a) Anxiety b) Depression c) PTSD d) OCD[13]The claimant states the lack of reasonable adjustments as recommended by OH significantly exacerbated his mental health conditions.[14]Today’s hearing has been listed to determine the issue of disability as a preliminary issue. The respondent does not concede disability. Page 3 of 16[15]I have before me a 521-page bundle (this preliminary hearing is listed to deal with a number of preliminary matters; disability being one of them). The bundle contains the claimant’s original disability impact statement. I also have an updated 29-page Disability Impact Statement. The respondent does not object to its late amendment or admission.[16]The claimant gave sworn evidence. The date of alleged onset of disability is different for his physical and mental impairments and I will address this in the decision accordingly.
Legal Framework
[17]Statutory definition S6 Equality Act 2010(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…(2) A reference to a disabled person is a reference to a person who has a disability.(3) In relation to the protected characteristic of disability –a. A reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability;b. A reference to persons who share a protected characteristic is a reference to persons who have the same disability(4) This Act …applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly … a. a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability… b. a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability[18]Section 212 Equality Act 2010 defines “substantial” as being more than minor or trivial. Page 4 of 16[19]Paragraph 5 of Schedule 1 to the Equality Act 2010:(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 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.
Findings of Fact
[20]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? Physical Impairments: Visual[21]The claimant relies on 4 visual impairments. He has had them all since childhood.[22]Keratoconus can be helped by wearing special lenses which the claimant tried to wear but they hurt his eyes. Mr Kaminski says this condition causes blurred vision. He has undergone a surgical procedure which was meant to slow down or stop the issue with his cornea which can result in less sharp vision.[23]Mr. Kaminski confirmed he did not know if retinal detachment affected his vision, but he stated it could lead to loss of vision if the retina was to detach. I find no evidence to support that the risk of retinal detachment (until it actually occurs) causes any problems with vision. However, I find this does have an adverse effect on Mr Kaminski’s day to day activities which are more than minor or trivial. I find he cannot participate in certain sports (football) and nor can he lift items weighing more than 12.5kg. The condition also lasted more than 12 months at the material time.[24]Amblyopia is a condition which is commonly referred to as ‘lazy eye’. The claimant has had surgery for this condition which affects his right eye. Mr. Kaminski states that the eye can move on its own independently of the othe eye. He wears glasses and said sometimes it can cause him pain. The surgery he had to try and correct this was not completely successful and his peripheral vision to his right is affected. So when he is looking straight ahead, he may be able to see an object to his right through his peripheral vision but it may for example be blurry. Page 5 of 16[25]His astigmatism has been present from birth and it causes blurred distance vision. Mr. Kaminski’s right eye vision is -3.5 and left eye vision is -3.0. Astigmatism is commonly known as short sightedness. Mr. Kaminksi wears glasses to correct the impact of this short sightedness.[26]It is clear that the astigmatism affects Mr. Kaminski’s ability to see clearly. However I find this is largely corrected by wearing glasses. Whilst his statement refers to him needing assistance with personal care tasks and that he cannot climb stairs he then goes on to state he can climb stairs with glasses. He gave no evidence about what personal care tasks are impacted and how, on a day to day basis. In evidence he stated his statement needed correcting when it referred to him getting headaches in bright lights. He stated this was a mistranslation. He was unclear about how often he had headaches due to any of his visual impairments. He stated it depends on how blurry the light is. When asked about the nighttime challenges he referred to in his witness statement caused by his eye conditions, he said he is unable to help his wife with their child at night because he could trip and fall on objects not visible to him. However, in oral evidence he conceded this would only be an issue if the room was dimly lit. I do have concern regarding some contradictory accounts about the impact as stated in his witness statement compared to his oral evidence. For example, alluding to the fact that he could trip over things at night in his written statement but then admitting if the room was well lit this would not be an issue. Further stating in his witness statement that he effectively felt ‘blind at night reliant on others for significant adjustments’, but it is clear from his oral evidence he has the usual challenges of someone who is shortsighted and needs to wear glasses. Based on this evidence I find without his glasses in poorly lit environments, he will find it difficult to navigate his surroundings. However, I heard no evidence to persuade me his visual problems mean his normal activities are impacted at night if he was wearing glasses provided the area was lit well. A poorly lit environment would no doubt cause similar challenges to anyone. It was notable that Mr Kaminski in his statement states even climbing stairs without glasses demonstrates the ‘severe limitations imposed on my mobility and daily activities’. But he accepted in his oral evidence he can climb stairs without issue wearing his glasses. I will give Mr Kaminksi the benefit of the doubt due to his language barrier when preparing his statement. However, he had the benefit of an interpreter in oral evidence.[27]In relation to visual impairments, it is important to note the impact on day to activities when considering the definition of disability under the EQA is assessed with the person wearing glasses. This is an exception to the general approach which is to remove the effect of treatment or corrective measures.[28]In relation to his astigmatism this means Mr. Kaminksi is short sighted and I find the wearing of glasses is sufficient to reduce the effect of this so he can participate in ordinary day to day activities. I heard no evidence as to the adverse impact of astigmatism save that without his glasses, he will find it Page 6 of 16 difficult to navigate an environment which is poorly lit or to climb stairs. The wearing of glasses I find eliminates this effect.[29]Mr. Sangha accepted the Amblyopia was a disability at the material time. This is in relation to his right eye only providing him with peripheral vision. I was concerned that Mr. Kaminski was unable to give clear oral evidence about the impact on his day-to-day activities of the Amblyopia. However given the unchallenged witness statement as to the effects, I find Mr. Kaminski’s Amblyopia does satisfy the definition of disability pursuant to the EQA at the material time. This is a condition he was born with, the surgery to align the eyes did not change the vision in the right eye. I find the Amblyopia is an impairment which had an adverse effect on normal day to day activities and that the condition was more than minor or trivial. It also continued for more than 12 months and the claimant was suffering from this impairment at the material time of the complaints he makes. The adverse effects in his witness evidence are that this impacts his ability to read, and to do any ‘detailed’ visual tasks. He has peripheral vision which is blurry and impedes his ability to see to his right. I find this is not corrected by wearing glasses. This adverse effect remains even with the wearing of glasses.[30]In relation to the Keratoconus, the claimant stated he experiences blurring and smearing of light in bright lights but in evidence stated glasses can help with the effects of blurring. Mr Kaminski did not give any real detail of the effect on on his day-to-day activities of this impairment alone and his statement refers to the cumulative effects of his visual impairments. I accept it may be difficult to isolate the impact of each visual impairment. Whilst Mr. Kaminski states he has significant blurring he then contradicted this by saying glasses help with this. He states in his witness statement that it impacts his space and depth perception but was unable to give any examples of what activities of normal daily living are impacted by this. It is difficult to make a finding about the impact of this impairment in those circumstances in isolation of the evidence given by Mr. Kaminski about the cumulative impact of the eye conditions he has.[31]In relation to the risk of retinal detachment. I find the adverse effects on normal day to day activities is established. Mr. Kaminski cannot take part in activities such as football (heading the ball) or lifting items which weigh in excess of 12.5kg. I accept Mr. Kaminski’s evidence about what medical advice he has received to avoid retinal detachment and I find the adverse effect is more than minor or trivial and it is a long-term condition continuing for more than 12 months. He was suffering this condition at the material time.[32]Whilst I am not persuaded the astigmatism is a disability for the purpose of the definition within the meaning of s6 of the EQA 2010 I am satisfied the cumulative impact and adverse effects of the other visual impairments satisfy the definition. I find the claimant was a person under a disability at the material time in relation to the cumulative effects of the following impairments: Page 7 of 16 Physical impairments – arthritic conditions[33]Mr Kaminksi has been suffering from arthritic conditions (rheumatoid arthritis and multi joint osteoarthritis and chondromalacia patella) since adolescence. In his witness statement he says the impact on day-to-day activities is ‘profound and multi faceted’. He states in his witness statement he struggles with manual handling and standing for long periods. His statement also says he has joint pain and ‘flare ups are particularly debilitating’. His statement however does not explain any further about the precise adverse effects on normal day to day activities. I find he takes medication to alleviate pain and reduce inflammation and with this medication he can maintain mobility. From his oral evidence I find the reference in his witness statement to ‘standing for long periods’ being impacted relates to when Mr. Kaminski attends church mass after about 5 or 10 minutes of standing in one position Mr. Kaminski has to change his position and may have to step from side to side. I find walking is less painful for him than standing still for 5-10 minutes. Whilst his witness statement refers to climbing stairs becoming insurmountable when he has flare ups, Mr. Kaminski accepted in evidence this was a mistranslation in the statement and what he means is climbing stairs will become painful. Therefore, I find his arthritic conditions do not make climbing stairs insurmountable. Mr. Kaminski’s statement states that the cumulative effects of the symptoms of pain, stiffness and joint swelling hinder his ability to move around. I heard no evidence as to how his mobility is limited on a day to day basis and what normal day to day task are affected from his joint conditions aside from when he is standing in one position for more than 5-10 minutes at Church. I heard no evidence about what tasks he is unable to do as examples of how his ‘ability to care for myself ‘is limited nor any evidence of what ‘routine’ tasks are impacted on a day-to-day basis (which is what he refers to in this witness statement).[34]I find Mr. Kaminski’s witness statement and oral evidence largely comprised of generalised statements of effect but even when asked to give specific examples of normal activities that were impacted having explained what the test is for establishing disability, he was unable to provide any detail save for the example of standing for more than 5 to 10 minutes at Church producing pain and resulting in him having to change position. There is a letter from a family doctor, Dr J Klein, in the bundle (page 488) who we established is a Doctor in Poland whom Mr. Kaminski has seen on a couple of occasions about himself and a few occasions about his son. This letter also does not confirm the impacts on Mr. Kaminski s day to day activities. It repeats what Mr. Kaminski says in general terms about how his joint disease ‘significantly’ affects the ability to perform daily activities and overall quality of life but again makes no reference to what normal day-to-day activities are impacted. The only example Mr. Kaminski Page 8 of 16 gives is the one of attending Church mass. Similarly I heard no evidence about what manual handling activities he cannot perform. I find Mr. Kaminski’s evidence about the impact of the arthritic/joint impairments falls significantly short of establishing the impairment has an adverse effect on normal day to day activities which are more than minor or trivial. He gave evidence about flare ups of this condition causing issues. But he was unable to confirm the frequency of the flare ups or any triggers or that issues specifically were caused. He simply stated he believed flare ups would occur when there were radical weather changes. Whilst I accept that fluctuating effects of his arthritic condition do not prevent a finding about the impairment having the requisite long term effect I find the claimant has not established the effect was more than minor or trivial. He was only able to give one example of the impact and I heard no evidence about any normal day-to-day activities which were adversely affected. I heard no evidence that the claimant has to avoid doing anything because of his arthritic conditions or that he can only manage due to any pain medication. The one adjustment he discussed was having to step side to side if he is standing in one position for more than 5-10 minutes. He gave the example of this happening at church mass but no other day-to-day activities that are similarly affected. He referred to having ‘daily struggles’ in his witness statement but gave no specific examples of this despite being asked about this and being given ample opportunity to expand on his written statement.[35]I therefore find the claimant has not established his arthritic/joint conditions amount to a disability at the material time within the meaning of the EQA 2010. Mental health impairments – anxiety and depression[36]At page 488 of the bundle Mr. Kaminski produces a letter from a Doctor called Dr J Klein. The letter is dated 26 March 2024. Dr Klein is from a family medicine clinic in Warsaw. Mr Kaminski explained she is similar to how a GP is in the UK. Mr Kaminski was asked over what period of time he saw Dr Klein in relation to his mental health conditions. I find Mr Kaminski saw Dr Klein on 26 March 2024. Prior to this he contacted her to provide a certificate for him. When pressed he confirmed he met her the day before the letter dated 26 March 2024. I find Mr Kaminski was in Poland at this time and was unable to contact an English GP. He had spoken to Dr Klein in previous years during the period after his wife's first miscarriage when he was still living in Poland. I find he had cause to consult with Dr Klein around the summer of 2021. I find Dr Klein did not prescribe him with any of his medications for his mental health conditions. He confirmed those were prescribed by other doctors whose names he could not recall. Prior to the letter dated 26 March 2024 Mr Kaminski confirmed he saw Dr Klein in either December 2023 or January 2024.[37]Mr Kaminski also states he saw Dr Klein a handful of times in the period from February 2022 until June 2023. I find it appears these visits related to medical appointments to do with his son and that he spoke about other matters but Mr Kaminski did not clarify what those other matters were save to say that they were ‘topics in relation to me’ Page 9 of 16[38]The letter from Dr Klein dated 26 March 2024 lists a number of health impairments namely: a) Depression b) anxiety disorder c) post traumatic stress disorder d) obsessive compulsive disorder[39]I find that Mr Kaminski’s mental health impairments started as a result of the loss of a child when his wife suffered a miscarriage in May 2021. This is supported by the letter from Dr Klein. It was accepted by Mr Kaminski in evidence what his depression and anxiety commenced after the first miscarriage. I find that his OCD however has been a condition which has affected him prior to the first miscarriage. He gave unchallenged evidence that his OCD is a condition that has suffered with for longer. However he gave no evidence about when this condition was first experienced by him nor the impact of this impairment specifically on any normal day to day activities . I find therefore Mr Kaminski has not established disability in respect of his OCD at the material time. I heard no evidence of any adverse impact of this impairment in isolation of any anxiety and depression. Nor am I persuaded any of the effects Mr Kaminski describes in either his written or oral evince relate to symptoms of OCD.[40]In relation to the medication Mr Kaminski has taken for his mental health conditions he was taking Trittico for two months in August 2021 and then he stopped taking this medication and re commenced taking it in April 2023. Mr Kaminski stated this medication was to help him fall asleep and reduce anxiety.[41]The next medications he started taking were in April 2023, these being Bioxetin and Olanzapine. The letter from Dr Klein confirms these were being taken from April 2023. These are prescribed by a psychiatrist in Poland. The claimant states that these medications were taken from April 2023 because of the impact that his employment with the first respondent had on him. He alluded in oral evidence to wanting to do bad things to himself but was understandably unwilling to expand on this any further. I find it was workplace issues that prompted this need for medication in April 2023. Mr Kaminski was clear it was peoples behaviour towards him at work which resulted in this medication being prescribed and taken by him at this time.[42]I find from August 2021 the claimant sought psychiatric help for the trauma he suffered with following his wife's miscarriage. I find following this he received a diagnosis of PTSD. In his statement Mr Kaminski states his symptoms of PTSD significantly hampered his ability to partake in the simplest of daily activities. In oral evidence he clarified he lost his enjoyment for living. He did not want to speak to anyone, he could not focus on anything, he wanted to sleep but Page 10 of 16 then could not sleep and his sleep was disturbed unless he had medication. He isolated himself. I find as the ceased taking he only took the medication following the diagnosis of PSTD for approximately 2 months and that the impact of PTSD symptoms were not continuing by the time he commenced work for the respondent in October 2021. This is because I heard no evidence of what day to day adverse effect specifically the PTSD impairment had on him once he stopped taking the medication after about 2 months in 2021. I am persuaded however that his anxiety and depression continued through the relevant period.[43]I find the advice given to him by his psychiatrist in or around August 2021 was to establish a routine including a routine at work. I find that Mr Kaminski commenced working for the first respondent in October 2021. His employment was due to start in April 2021, but this was deferred until October 2021. Mr Kaminski explained his employment was deferred due to the passing away of his uncle, and his wife’s miscarriage. I find in the period before October 2021 when Mr Kaminski returned to the UK, he had been through some very difficult life events.[44]I find Mr Kaminski commenced psychological treatment in or around November 2022. I find that the claimant commenced this psychological treatment (not medication) because of workplace issues. The claimant was absent from work during June 2022 and July 2022. He refers to a number of incidents in the period between February /March 2022 and the commencement of his therapy which are clearly work related issues affecting his mental impairments of anxiety and depression (and I do not find this therapy was solely in relation to his grief response to his wife’s miscarriage).[45]I find Dr Klein was not provided with any records of Mr Kaminski’s psychological treatment sessions before she prepared her letter dated 26 March 2024. In Mr Kaminski’s witness statement, he states this psychological treatment assisted him somewhat for a period of time although his evidence was clear that he was still suffering with his mental health issues notwithstanding the treatment. I find his therapy/ treatment finished with his Psychiatrist Dr C Rainbow because Mr Kaminski stated he may have made her feel uncomfortable as he was messaging her every day about his problems. Her response to him was that he needed to take medication and that is why he commenced medication again in 2023.[46]Mr Kaminski was specifically asked by me (as he was unable to answer the question put to him by Mr Sangha in similar terms) when he was having treatment with Dr Rainbow what daily activities was he able to do during that time which he was unable to do when the treatment stopped. Mr Kaminski responded he could not remember. He stated that the Psychiatrist was working on his sleep and his relationship with his wife which at the time was deteriorating. He could not give me any other explanation of what day-to-day activities the psychological therapy may or may not have assisted with. Page 11 of 16[47]Whilst Mr Kaminski refers to stress as an impairment, he clarified in oral evidence that stress was a symptom that he was experiencing as opposed to an impairment in its own right in the same way that he says anxiety and depression are impairments. I find that when Mr Kaminski refers to stress it is not as an impairment but as a symptom of certain events he experiences or as a result of incidents that have not yet happened which he worries may happen. Beside from worrying about things that had happened or that could happen for example he could be dismissed and be left without work when expecting a child Mr Kaminski gave no evidence as to the day-to-day impact on normal daily activities of this stress symptom.[48]I do not find Mr Kaminski was suffering with stress as a separate impairment at he material time. He gave no evidence about how symptoms of stress impacted his normal day-to-day activities nor that the symptoms had the requisite substantial long-term effect so as to satisfy the required test under the Equality Act.[49]I accept the letter from Dr Klein dated 26 March 2024 refers to the impact of Mr Kaminski’s mental health conditions on his daily life in very general terms and that this is based on Mr Kaminski’s own account to her as opposed to any actual diagnosis being made by her following any formal assessments or input/advice from his Psychiatrist. I also find the claimant’s witness statement is also vey general about the adverse effects of his anxiety and depression. However, I accept Mr Kaminski’s clarification in oral evidence regarding the impacts on his day-to-day activities of his mental health conditions. I find his mental health conditions of anxiety and depression were impacting on his ability to sleep and focus and concentrate. I find that his anxiety and depression were impacting on his ability to communicate with other people. I find that he would freeze for example in a job interview which he states previously was something he excelled at. I find his anxiety and depression impacted his sex life with his wife. I find the claimant was unable to socialise because of his mental health condition of anxiety and depression. I find the claimant was unable to play on his PlayStation or to do ordinary activities such as cooking. I find the claimant’s anxiety and depression commenced following the loss of his first baby in or around May 2021 and he was still suffering with anxiety and depression when he started working at Amazon on 5 October 2021. I find he continued to suffer with his mental health impairments of anxiety and depression during his employment with the first respondent.[50]Mr. Kaminski suffered another loss in April 2022. He confirms in his witness statement this ‘further compounding my grief’. His statement goes on to state this ‘personal tragedy paled in comparison to the subsequent challenges I encountered in the work place’. I do find the claimant suffered with a normal grief response to some tragic life events for example he lost his joy for life, he did not want to socialise, his sleep was impacte. It is clear he has undergone periods of psychotherapy and taken medication partly to assist with his losses. Page 12 of 16[51]However I accept his mental health impairments of anxiety and depression were also impacted by what he alleges to be mistreatment by his employer. I heard no evidence about his OCD being impacted by the tragic life events at the material time nor the effects on his OCD of any workplace issues. Whether or not Mr Kaminski was subjected to the unwanted conduct alleged in his claims before the Tribunal is a matter for the Tribunal to determine at the final hearing. However, I do need to make a determination about whether he was suffering with mental impairments which had a long term effect on normal day to day activities because reactions to adverse circumstances are not usually long lived.[52]There is of course a valid distinction to be drawn between a normal reaction to an adverse and tragic life event and something that is more profound and develops into an impairment. In Igweike v TSB Bank plc UKEAT/0119/19/BA, the Tribunal was entitled to conclude that the claimant’s grief after the death of a parent was not an impairment at the material time despite the doctor’s use of the word “depression”. Aside from the claimant’s OCD which appears to pre date the loss of his first child it is clear the onset of Mr Kaminski’s other mental health impairments namely anxiety and depression was following the significant adverse life event of his baby loss. Mr. Sangha seeks to persuade me the claimant’s responses were such normal reactions to an adverse life event and that that he has not demonstrated a long-term adverse effect as required under the Equality Act 2010. Mr Sangha further states that the effect of his employment on his mental health impairments as per the case of Herry v Dudley Metropolitan Council, [2017] ICR 610 (where the EAT quoted J v DLA Piper UK LLP) essentially amounted to his unhappiness with workplace decisions which in themselves are not impairments.[53]I do not find that this is a case where the claimant became entrenched over an issue at work yet in other respects suffered no or little apparent adverse effect on normal day-to-day activities. Whilst acknowledging unhappiness with the actions or decisions of colleagues at work or his employers responses to a grievance are not of themselves mental impairments, and I find the onset of his anxiety and depression was following his baby loss (and his grief was a normal response to such a tragic life event), I also find his anxiety and depression worsened by issues in the workplace . Mr Kaminski stated this commenced due to delay in receive an incentive payment due at the end of February 2022 (allegedly not received until March 2022) which caused financial issues and resulted in him living in an unstable environment exacerbating his mental health difficulties. Mr Kaminski states he suffered a panic attack in June 2022, and I find during this time he was not suffering with just normal responses to a tragic life event. It is clear from his evidence that matters that occurred around this time including the lack of support he alleges at work, and the alleged disclosure of sensitive health information had a significant impact on his mental health over and above the effects of his grief. He gave unchallenged evidence regarding suffering with chest pain, shortness of breath heart palpitations and pain in his eyes. He states these effects resulted is his prolonged sickness Page 13 of 16 absence in June and July 2022. It is clear from Mr Kaminski’s claim he felt he was being treated in a demeaning way.[54]I find there was an additional impact on his anxiety and depression from the issues which arose in the workplace from in or around February 2022 until the end of his employment in June 2023. Whilst Mr Sangha states Mr Kaminski’s witness statement is vague and does not establish a long term adverse impact which is more than minor or trivial I find the claimant has established the issues at work did in addition to this normal grief response result in additional anxiety and depression which were more than minor or trivial. He suffered a panic attack at work that I do not find was related to his baby loss there being no evidence to support this was suffered due any grief response. To the contrary I accept Mr Kaminski’s evidence that this resulted from an alleged failure to make adjustments recommend in the OH report. He gave evidence about how his anxiety and depression impacted his day-to-day activities adversely from February 2022 onwards. I find his ability to have sex was impacted by the anxiety and depression he suffered due to the effects of work issues. Similarly his anxiety and depression at this time impacted his sleep, ability to socialise and do things like playing on his play station and cook. Whilst there is an overlap with some of these effects and the anxiety and depression following his baby loss (eg isolation and impact on sleep) there was clear evidence about additional day to day activities impacted and the overlap between symptoms I find relates to how anxiety and depression can manifest as opposed to this meaning at this time he was suffering still from only a grief response to tragic life events.[55]I find the impact of his mental health impairments of anxiety and depression did affect normal day-to-day activities and that the impact was long term and it was more than minor or trivial. Mr Sangha seeks to persuade me that what Mr Kaminski describes in so far as this impact is concerned is an adverse reaction to life events and that it is entrenched. Whilst Mr Sangha states all of Mr Kaminski’s responses about the impact comes back to his grief I do not find this to be the case. Mr Kaminski gave evidence of the additional impact on his anxiety and depression due to the issues at work which affected his day-to-day activities including ability to sleep, ability to socialise, ability to play on his PlayStation and ability to cook.[56]Mr Sangha asks me to critically consider the lack of medical evidence in this case albeit he has to recognise medical evidence is not a prerequisite to establishing disability. Mr Sangha states there is a real lack of precision about the day today impact caused by any mental health issues and asks me to find that what the medication shows and the evidence Mr Kaminski gave shows is his anxiety and depression or PTSD are a reaction to adverse life events and effectively amount to grief but they are not a disability pursuant to the Equality Act.[57]It is evident from Mr Kaminski’s oral evidence in particular that the tragic loss of his baby in May 2021 still impacts him. However, I am satisfied there were Page 14 of 16 additional effects on his mental health due to alleged incidents at work which exacerbated his anxiety and depression and certainly resulted in additional adverse effects which impacted normal day-to-day activities. I am further satisfied based on his oral evidence and the detail given in his witness statement (whilst accepting that a lot of it is general) is sufficient to establish the long-term effect.[58]In Goodwin v Patent Office [1999] I.C.R. 302, Morison J (President), provided some guidance on the proper approach for the Tribunal to adopt when applying the provisions of the Disability Discrimination Act 1995. Morison J set out four questions to be answered by the Tribunal in order. This four-stage approach was approved more recently by the Court of Appeal in Sullivan v Bury Street Capital Limited [2021] EWCA Civ 1694, where Singh LJ listed the questions as: i. Was there an impairment? (the ‘impairment condition’); ii. What were its adverse effects [on normal day-to-day activities]? (the ‘adverse effect condition’); iii. Were they more than minor or trivial? (the ‘substantial condition’); iv. Was there a real possibility that they would continue for more than 12 months? (the ‘long-term condition’).[59]Singh LJ emphasized that these are questions for the Tribunal; although it may be assisted by medical evidence, it is not bound by any opinion expressed.[60]Mr. Sangha refers me to Herry v Dudley Metropolitan Borough Council(1) and Governing Body of Hillcrest School(2) [UK EAT 0101/16] where the claimant was unable to establish disability. I have taken note of the decision and as stated above I have found that from May 2021 until the end of his employment in June 2023 the claimant did suffer the mental impairments of anxiety and depression. I found he did establish the requisite substantial long term effect of these mental impairments and whilst taking note of the decision in J v DLA Piper UK LLP [2010 WL 2131720] I have found that from February/March 2022 including the period he was signed off sick in 2022 up until the end of his employment in June 2023 the claimant was suffering mental impairments of anxiety and depression as opposed to his anxiety and depression being a reaction to tragic life events and simply grief. This is based on the claimant’s witness statement and his oral evidence where I was satisfied, he better clarified the day-to-day impact on normal activities. It is clear that during this period his mental health conditions of anxiety and depression had moved past simply being grief related albeit it is clear that he still feels the impact of his tragic losses. The effect was substantial and long term. Page 15 of 16[61]I therefore find that at the time of the alleged discriminatory conduct the claimant had been suffering with both a physical impairment (visual) and mental health impairments (anxiety and depression) as defined in s.6 of the EQA which had a long-term adverse effect on his ability to carry out normal day-to-day activities and that such effects was substantial. Disability at the material time is therefore established.