Mr A AhmedClaimantBarts Health NHS TrustRespondent
Before
Employment Judge S ShoreIn person for claimantMs S Crawshay-Williams (instructed by Counsel) for respondentDate 2 May 2025
JUDGMENT
[1]The name of the respondent is amended to Barts Health NHS Trust.[2]The claimant’s claim of breach of contract is struck out.[3]The claimant did not meet the definition of disability in section 6 of the Equality Act 2010 at the time with which his claim is concerned.[4]The claimant’s claims of disability discrimination under sections 15 and 20/21 of the Equality Act 2021 are dismissed.
REASONS
[1]The Claimant was employed by the Respondent as a Pharmacy Trainee for a 4- month period between 20 November 2023 and 21 March 2024. Following contacting ACAS on 4 June 2024 he presented his claim on 14 June 2024. He 1 of 8 brings claims for disability discrimination related to his dismissal and made a claim for breach of contract (failure to pay notice pay).[2]The Claimant contends that he is disabled by reason of depression and anxiety and that this manifested itself in mood management issues (behaviours) and forgetfulness relating to a previous altercation incident (memory).[3]The Claimant asserts that he informed Ms Vaay of his disability on 22 November 2023, Md Abe Addua – Atto at the disciplinary hearing on 21 March 2024 and Mr Mohammed El – Khouli at the appeal on 23 May 2024.[4]The Respondent does not admit that the Claimant is a disabled person and denies knowledge of disability.[5]The claim was case managed at a preliminary hearing before Regional Employment Judge Burgher on 20 November 2024 at which he made several orders relevant to the question of disability. These included: 5.1. That the parties serve each other with copies of any “medical notes, reports, occupational health assessments and other evidence in the possession and/or control relevant to the issues of whether the claimant was at all relevant times, a disabled person under the Equality Act 2010” by 3 January 2025; and 5.2. That the claimant “must by 3 January 2025 provide the respondent with a witness statement (or statements): identifying what "physical or mental impairment"(s), in accordance with EQA section 6, is relied on in relation to the disability issue; stating, in relation to each impairment relied on, between which dates it is alleged the claimant was a disabled person because of that impairment; dealing, by specific reference to schedule 1 to the EQA and any relevant provision of any statutory guidance or Code of Practice, with the effect of the alleged disability (or disabilities) on the ability of the claimant to carry out normal day to day activities. The claimant is referred to the part of the Presidential Guidance issued on General Case Management, which relates to disability.”[6]The claimant provided an impact statement dated 3 January 2025 and: 6.1. A letter from University College London Hospitals dated 19 August 2022 to arrange an appointment for the claimant to attend a clinic on Insomnia and Behavioral Sleep Medicine on 22 September 2022 [106-108]; and 6.2. A letter from The Medical Centre 140 Holloway Road dated 13 September 2024 addressed to “To whom it may concern.”[7]On 10 January 2025, the respondent wrote to the Tribunal, copying in the claimant, with an application to convert the listing hearing that REJ Burgher had set up for one hour on 2 May 2025 into a one-day PPH to determine the question 2 of 8 of disability. The respondent’s request was granted by EJ Gordon Walker on 17 February 2025.[8]In preparation for this PPH, the respondent produced a bundle of documents consisting of 112 pages with an index. Ms Crawshay-Williams submitted a skeleton argument on 1 May 2025.[9]On the morning of the hearing, the claimant produced a second impact statement dated 1 May 2025.
The Hearing
[10]Before the hearing, I had read the entire bundle, the claimant’s new witness statement and Ms Crawshay-Williams’ skeleton argument.[11]The hearing started at 10:05am. I advised the parties that the hearing was recorded. The claimant asked if he could object to the hearing being recorded. I said that he could not.[12]Ms Crawshay-Williams objected to the claimant producing a second witness statement. The claimant said he had written it in response to the respondent’s skeleton argument. I decided that the claimant could only rely on his first impact statement as it should have contained all the information required by REJ Burgher’s order.[13]The claimant confirmed that he had received the bundle and skeleton, and I explained the timetable of what we had to do: I would hear his evidence and Ms Crawshay-Williams’ cross-examination. I would then hear closing submissions from both parties. I would retire to make my decision and then either strike the claim out if I found the clamant did not meet the definition of disability or deal with the listing hearing matters if the case survived.[14]The parties confirmed that the claimant had not responded to a strike out warning about his claim of breach of contract (failure to pay notice pay) and that claim was struck out. I was asked to confirm that the correct name of the respondent was Barts Health NHS Trust, which was agreed and which I have done.[15]Mr Ahmed gave evidence on affirmation and adopted his witness statement dated 5 January 2025. Ms Crawshay-Williams cross-examined him, and I asked the claimant some questions. Both parties then made closing submissions. I adjourned the hearing at 10:50am and released the parties until 12:30pm while I made my decision.
Law
[16]The relevant provisions of the legislation relating to the question of whether someone meets the definition of disabled person are found at section 6 of the Equality Act 2010: “(1) A person (P) has a disability if – 3 of 8(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 (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section – (a) a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (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. (5) A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1). (6) Schedule 1 (disability: supplementary provision) has effect.”[17]Schedule 1 Part 1 of the Equality Act, para (2), states: “2(1) The effect of an 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. (2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. (3) For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed. (4) Regulations may prescribe circumstances in which, despite sub-paragraph (1), an effect is to be treated as being, or as not being, long-term.” 4 of 8[18]In terms of the applicable procedure, I had regard to The Employment Tribunal Procedure Rules 2024 and to the overriding objective set out at Rule 3 of the Rules.[19]The ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (“the Guidance”) does not itself impose legal obligations, but the Tribunal must take it into account where relevant (Schedule one, Part two, paragraph 12 Equality Act 2010). I have taken the Guidance into account.[20]The Guidance at paragraph A8 states ‘It is not necessary to consider how an impairment is caused… What is important to consider is the effect of an impairment, not its cause.’[21]The Guidance at paragraph B1 deals with the meaning of ‘substantial adverse effect’ and provides: “The requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people. A substantial effect is one that is more than a minor or trivial effect.”[22]Paragraphs B4 and B5 of the Guidance provide that: “An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation. However, it is important to consider whether its effect on more than one activity, when taken together, could result in an overall substantial adverse effect. For example, a person whose impairment causes breathing difficulties may, as a result, experience minor effects on the ability to carry out a number of day-today activities such as getting washed and dressed, going for a walk, or travelling on public transport. But taken together, the cumulative result would amount to a substantial adverse effect on his or her ability to carry out these normal day- to-day activities.”[23]Paragraph B1 of the Guidance should be read in conjunction with Section D of the Guidance, which considers what is meant by ‘normal day-to-day activities’. Paragraph D2 states that it is not possible to provide an exhaustive list of day-today activities.[24]Paragraph D3 Provides that: “In general, day-to-day activities are things that 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.”[25]Paragraph D16 provides that normal day-to-day activities include activities that are required to maintain personal well-being. It provides that account should be 5 of 8 taken of whether the effects of an impairment have an impact on whether the person is inclined to carry out or neglect basic functions such as eating, drinking, sleeping, or personal hygiene.[26]The Equality and Human Rights Commission: Code of Practice on Employment (2011) at Appendix 1, sets out further guidance on the meaning of disability. It states at paragraph 7 that: “There is no need for a person to establish a medically diagnosed cause for their impairment. What is important to consider is the effect of the impairment, not the cause.”[27]At paragraph 16 it states: “Someone with impairment may be receiving medical or other treatment which. alleviates or removes the effects (although not the impairment). In such cases, the treatment is ignored and the impairment is taken to have the effect it would have had without such treatment. This does not apply if the substantial adverse effects are not likely to occur even if the treatment stops (that is, the impairment has been cured).”[28]In Goodwin v Patent Office [1999] IRLR 4, the EAT held that in cases where disability status is disputed, there are four essential questions which a Tribunal should consider separately and, where appropriate, sequentially. These are: 28.1. Does the person have a physical or mental impairment? It is in dispute in this case that the claimant had a mental impairment at the relevant time – generalised anxiety and panic disorder, which is a mental impairment. I should also say that nothing in this decision should be seen as casting any doubt on that fact. 28.2. Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities? 28.3. Is that effect substantial? 28.4. Is that effect long-term?[29]The burden of proof is on a claimant to show that he or she satisfies the statutory definition of disability.[30]Evidence does not have to be corroborated Peart v Dixons Store Group Retail Limited (2004) UKEAT/0630/04.[31]I accepted Ms Crawshay-Williams’ submissions on the relevant law as being correct; 31.1. Substantial is defined as meaning “more than minor or trivial” (s.212(1), EqA 2010). An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if measures are being taken to treat or correct it and, but for that, it would be likely to have that effect 6 of 8 (para 5, schedule 1, EqA 2010). Likely means “could well happen”, not that it is more probable than not (SCA Packaging Ltd v Boyle [2009] ICR 1056). 31.2. The effect of an impairment is long-term if it has lasted or is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected (para 2(1), schedule 1, EqA 2010). 31.3. The time at which to assess the disability (whether there is an impairment which has a substantial adverse effect on normal day-today activities) is the date of the alleged discriminatory act (Cruickshank v VAW Motorcast Ltd [2002] ICR 729, EAT). The date of the discriminatory act is also the material time when determining whether the impairment has or is likely to have a long-term effect (All Answers Ltd v W [2021] EWCA Civ 606, CA).
Findings
[32]The relevant time with which this case is concerned is the period of the claimant’s employment between 20 November 2023 and 21 March 2024. The claimant accepts that he did not attend work between 8 December 2023 and the date of his dismissal.[33]I find that the claimant answered “No” when he was asked to indicate whether he was a disabled person in the respondent’s application form [99].[34]I find that the letter dated 19 August 2022 from University College London Hospitals NHS Foundation Trust is only evidence that the claimant was told an appointment had been arranged for him for ‘Insomnia & Behavioural Sleep Medicine’ on 22 September 2022 [106]. The letter said the Claimant had been having a lack of sleep and recommended a trial of trazodone of 50mg nightly. The letter did not state the Claimant’s insomnia was due to or related to anxiety or depression. Of itself, I find the letter does not assist the claimant in demonstrating he had the mental impairment of depression or anxiety at the time of the letter. I also find that the letter predates the time which this claim is concerned by over a year. I give the letter no weight.[35]I find that the letter from the claimant’s GP practice dated 13 September 2024 was very vague. It only offered the information that the Claimant was said to have been suffering from depression and anxiety since 2014. It said the Claimant had been taking Fluoxetine 30mg since 2 May 2024. The letter said the Claimant had stopped taking the following medication: Trazodone, Mirtazapine, and Sertraline [109]. No dates were given of what each medication was prescribed for or why it had been prescribed or had stopped being prescribed. There were no dates given as to when the claimant had the symptoms of anxiety or depression, just that he “has been suffering from depression and anxiety since 2014”.[36]The 13 September 2024 letter post-dated the claimant’s employment and gave little information about his mental health while he was employed by the respondent. 7 of 8[37]The letter from the GP practice dated 7 February 2025 stated that the Claimant was prescribed Trazodone between September 2022 and December 2023 [112]. It states that the Claimant “has continued to have the medical condition of anxiety and depression to date including the 13th March 2024.” I find that statement to give no cogent information about when the claimant may have had anxiety and depression during his employment with the respondent. The claimant’s submissions on the letter were confusing and contradictory.[38]I find that the claimant’s medical evidence was inadequate. It was vague in terms of diagnosis, dates and medication prescribed. I cannot find that the claimant has shown that he had depression and anxiety at the relevant time. This point could have been addressed if the claimant had provided his GP records.[39]I find that the claimant’s evidence about the effects of depression and anxiety were vague and did not deal with the period with which his claim is concerned.[40]I find that the claimant may have had depression and anxiety at some times in his life between 2014 and today but that he has not shown that he had the condition at the relevant time. Neither has he shown that the impact on his ability to carry out normal day to day activities was substantially affected during the period of his employment with the respondent.