Mr M Cole v University of East London: 3201939/2023

EMPLOYMENT TRIBUNALS

Case No 3201939/2023

Between

Mr M ColeClaimant

University of East LondonRespondent

Before

Employment Judge Brewer

In person for claimant

Mr C Kennedy (instructed by Counsel) for respondent

Date 13 August 2024

JUDGMENT

[1]the claimant was not, at the material time a disabled person within the meaning of section 6, Equality Act 2010,

[2]the claimant’s claims for direct disability discrimination are dismissed.

REASONS

[1]This case was listed for a public preliminary hearing in order to determine the issue of disability. The claimant represented himself and the respondent was represented by Mr. Kennedy of Counsel. I had before me an agreed bundle documents running to 367 pages and written skeleton arguments from the claimant and Mr. Kennedy. 1 of 16

[2]The claimant gave evidence at the hearing and relied, as his evidence in chief, on his disability impact statement. He was cross examined by Mr. Kennedy and I also asked him several questions. At the end of the evidence both Mr. Kennedy and the claimant made oral submissions.

[3]Given the time of day, I inquired of the parties whether they would like written reasons and the claimant said that he would. Given that, I determined that I would not be able to deliver those detailed reasons today and therefore reserved my decision which I set out here.

Issues

[4]The sole issue before me to determine is whether the claimant met the definition of disability in section 6 of the Equality Act 2010 at the material time. The claimant asserts that he was disabled, at the material time, by reason of generalised anxiety disorder.

[5]It was determined at a previous case management preliminary hearing that the material time in this case Is between 1 September 2022 and 17 January 2024.

Law

[6]I set out below a brief section on the applicable law. Meaning of disability

[7]Section 6 of the Equality Act (“EqA”) provides that a person has a disability if 7.1. they have a physical or mental impairment, and 7.2. the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

[8]The EqA defines a ‘disabled person’ as a person who has a ‘disability’ —(S.6(2) EqA). The burden of proof is on the claimant to show that he satisfies this definition.

[9]In Chacón Navas v Eurest Colectividades SA

2007 ICR 1

, ECJ, the Court held that the concept of disability must be understood as ‘referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life’.

[10]Although the definition in S.6(1) is the starting point for establishing the meaning of ‘disability’, it is not the only source that must be considered. The supplementary provisions for determining whether a person has a disability are found in the Equality Act 2010 (Disability) Regulations 2010 SI 2010/2128.

[11]In addition, the Government has issued ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011) (‘the Guidance’) under S.6(5) EqA. The Guidance does not impose any legal obligations in itself but courts and tribunals must take account of it where they consider it to be relevant — para 12, Sch 1, EqA. 2 of 16

[12]Finally, the Equality and Human Rights Commission (EHRC) has published the Code of Practice on Employment (2015) (‘the EHRC Employment Code’), which has some bearing on the meaning of ‘disability’ under the EqA. Like the Guidance, the Code does not impose legal obligations, but tribunals and courts must take into account any part of the Code that appears to them relevant to any questions arising in proceedings.

[13]The requirement to ‘take account’ of the Guidance or Code applies only where the tribunal considers them relevant, and they must always give way to the statutory provisions if, on a proper construction, these differ. In Elliott v Dorset County Council EAT 0197/20 the EAT noted that where ‘consideration of the statutory provision provides a simple answer, it is erroneous to find additional complexity by considering the Code or Guidance’. Material time for establishing disability

[14]The material time in this case is as set out above.

[15]In All Answers Ltd v W

2021 IRLR 612

, CA, the Court of Appeal held that the key question is whether, as at the time of the alleged discrimination, the effect of an impairment has lasted or is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at that date and so the tribunal is not entitled to have regard to events occurring subsequently. Physical or mental impairment

[16]In Rugamer v Sony Music Entertainment UK Ltd and another case

2002 ICR 381

, EAT, the EAT suggested the following definition of physical or mental impairment under the DDA: ‘some damage, defect, disorder or disease compared with a person having a full set of physical and mental equipment in normal condition’. And in McNicol v Balfour Beatty Rail Maintenance Ltd

2002 ICR 1498

, CA, the Court of Appeal held that ‘impairment’ in this context bears ‘its ordinary and natural meaning… It is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the applicant has a physical or mental impairment with the stated effects.’ It would seem, therefore, that the term is meant to have a broad application.

[17]In Goodwin v Patent Office

[1999] IRLR 4

, the EAT gave detailed guidance as to the approach which ought to be taken in determining the issue of disability. A purposive approach to the legislation should be taken. A tribunal ought to remember that, just because a person can undertake day-to-day activities with difficulty, that does not mean that there was not a substantial impairment. The focus ought to be on what the claimant cannot do or could only do with difficulty and the effect of medication ought to be ignored for the purposes of the assessment.

[18]The EAT said that the words used to define disability in S.1(1) DDA (now S.6(1) EqA) require a tribunal to look at the evidence by reference to four different questions (or ‘conditions’, as the EAT termed them): 3 of 16 18.1. did the claimant have a mental and/or physical impairment? (the ‘impairment condition’) 18.2. did the impairment affect the claimant’s ability to carry out normal daytoday activities? (the ‘adverse effect condition’) 18.3. was the adverse condition substantial? (the ‘substantial condition’), and 18.4. was the adverse condition long term? (the ‘long-term condition’)?

[19]These four questions should be posed sequentially and not together (Wigginton v Cowie and ors t/a Baxter International (A Partnership) EAT 0322/09).

[20]The approach in Goodwin was approved in J v DLA Piper UK LLP

[2010] ICR 1052

(paragraph 40). It was said at paragraph 38 of that judgment: “There are indeed sometimes cases where identifying the nature of the impairment from which a Claimant may be suffering involves difficult medical questions; and we agree that in many or most such cases it will be easier – and is entirely legitimate – for the tribunal to park that issue and to ask first whether the Claimant's ability to carry out normal day-today activities has been adversely affected – one might indeed say “impaired” – on a long-term basis. If it finds that it has been, it will in many or most cases follow as a matter of common-sense inference that the Claimant is suffering from a condition which has produced that adverse effect — in other words, an “impairment”. If that inference can be drawn, it will be unnecessary for the tribunal to try to resolve difficult medical issues of the kind to which we have referred.” Substantial adverse effect

[21]To amount to a disability the impairment must have a ‘substantial adverse effect’ on the person’s ability to carry out normal day-to-day activities — S.6(1)(b) EqA. If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect is likely to recur, it is to be treated as continuing to have that effect — para 2(2), Sch 1.

[22]In Goodwin (above) the EAT said that of the four component parts to the definition of a disability in S.1 DDA (now S.6 EqA), judging whether the effects of a condition are substantial is the most difficult. The EAT went on to set out its explanation of the requirement as follows: ‘What the Act is concerned with is an impairment on the person’s ability to carry out activities. The fact that a person can carry out such activities does not mean that his ability to carry them out has not been impaired. Thus, for example, a person may be able to cook, but only with the greatest difficulty. In order to constitute an adverse effect, it is not the doing of the acts which is the focus of attention but rather the ability to do (or not do) the acts. Experience shows that disabled persons often adjust their lives and circumstances to enable them to cope for themselves. Thus a 4 of 16 person whose capacity to communicate through normal speech was obviously impaired might well choose, more or less voluntarily, to live on their own. If one asked such a person whether they managed to carry on their daily lives without undue problems, the answer might well be “yes”, yet their ability to lead a “normal” life had obviously been impaired. Such a person would be unable to communicate through speech and the ability to communicate through speech is obviously a capacity which is needed for carrying out normal day-to-day activities, whether at work or at home. If asked whether they could use the telephone, or ask for directions or which bus to take, the answer would be “no”. Those might be regarded as day-to-day activities contemplated by the legislation, and that person’s ability to carry them out would clearly be regarded as adversely affected.’

[23]This approach reflects the advice in Appendix 1 to the EHRC Employment Code that account should be taken not only of evidence that a person is performing a particular activity less well but also of evidence that ‘a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment; or because of a loss of energy and motivation’ — para 9.

[24]There must be a causal link between the impairment and the substantial adverse effect, but it need not be a direct link.

[25]In determining whether an adverse effect is substantial, the tribunal must compare the claimant’s ability to carry out normal day-to-day activities with the ability he or she would have if not impaired. It is important to stress this because the Guidance and the EHRC Employment Code both appear to imply that the comparison should be with what is considered to be a ‘normal’ range of ability in the population at large. Appendix 1 to the EHRC Employment Code states: ‘The requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people’ — para 8.

[26]In cases where it is not clear whether the effect of an impairment is substantial, the Guidance suggests a number of factors to be considered (see paras B1– B17). These include the time taken by the person to carry out an activity (para B2) and the way in which he or she carries it out (para B3). A comparison is to be made with the time or manner that might be expected if the person did not have the impairment.

[27]The cumulative effects of an impairment are also relevant. An impairment might not have a substantial adverse effect on a person in any one respect, but its effects in more than one respect taken together could result in a substantial adverse effect on the person’s ability to carry out normal day-to-day activities.

[28]The Guidance states that where a person has more than one impairment but none of the impairments considered in isolation has a substantial adverse effect on normal day-to-day activities, account should be taken of whether the impairments together have such a substantial adverse effect (see para B6). 5 of 16

[29]Paragraph 5(1) of Schedule 1 to the EqA provides that 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. In this regard, likely means ‘could well happen’ (Boyle v SCA Packaging Ltd (Equality and Human Rights Commission intervening)

2009 ICR 1056

, HL).

[30]When determining whether a person meets the definition of disability under the EqA the Guidance emphasises that it is important to focus on what an individual cannot do, or can only do with difficulty, rather than on the things that he or she can do (see para B9).

[31]In Aderemi v London and South Eastern Railway Limited

[2013] ICR 591

, the EAT held that the Tribunal: “has to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other.” Normal day to day activities

[32]Appendix 1 to the EHRC Employment Code states that ‘normal day-to-day activities’ are activities that are carried out by most men or women on a fairly regular and frequent basis. The Code says: ‘The term is not intended to include activities which are normal only for a particular person or group of people, such as playing a musical instrument, or participating in a sport to a professional standard, or performing a skilled or specialised task at work. However, someone who is affected in such a specialised way but is also affected in normal day-to-day activities would be covered by this part of the definition’ paras 14 and 15.

[33]The Guidance thus emphasises that the term ‘normal day-to-day activities’ is not intended to include activities that are normal only for a particular person or a small group of people. Account should be taken of how far the activity is carried out by people on a daily or frequent basis. In this context, ‘normal’ should be given its ordinary, everyday meaning (see para D4).

[34]The EAT in Paterson v Commissioner of Police of the Metropolis

2007 ICR 1522

, EAT, concluded that ‘normal day-to-day activities’ must be interpreted as including activities relevant to professional life. 6 of 16

[35]The Guidance states that it is not possible to provide an exhaustive list of day-to-day activities. However, in general, day-to-day activities are things people do on a regular or daily basis. The examples given are 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 also include general work-related activities and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern (see para D3). Long term

[36]Under para 2(1) of Schedule 1 to the EqA, the effect of an impairment is long term if it: 36.1. has lasted for at least 12 months, 36.2. is likely to last for at least 12 months, or 36.3. is likely to last for the rest of the life of the person affected.

[37]Other relevant case law is referred to below.

Findings of fact

[38]The claimant was employed by the respondent, a provider of higher education, as a senior lecturer in the School of Health, Sport and Bioscience. His employment started on 16 April 2012. When the claim was presented, the claimant was still in the respondent’s employment, but on 16 January 2024 he resigned.

[39]On 1 September 2022 the claimant was asked by his head of department to undertake the duties of course leader for the BSc sports therapy course. The claimant refused to take on what he says were non contractual additional responsibilities without reasonable adjustments.

[40]The respondent persisted in seeking to get the claimant to take on the extra duties and on 17 May 2023 the claimant raised a grievance the outcome of which was delivered on 12 July 2023. The Grievance was not upheld.

[41]On 20 October 2023 the respondent commenced disciplinary proceedings against the claimant because, they said, he had continually refused to follow a reasonable management request to undertake the duties of the course leader.

[42]Those bare facts explain the basis of the material time for the purposes of establishing whether the claimant was disabled. Much of this preliminary hearing dealt of course with contemporaneous medical evidence, what the claimant said about his disability in his disability impact statement, and under cross examination, I find it the following facts from that evidence. 7 of 16

[43]On 6 October 2014 the claimant attended his GP saying that he was feeling very stressed, and this appears to have been the result of having been through what is described in the GP record as “a messy divorce”.

[44]There was no significant reference in the GP record relating to anxiety until June 2018 when the claimant is described as having mixed anxiety and depressive disorder. This was the result of stress at work resulting from pressures caused by redundancies and a lack of funding.

[45]On 18 May 2022 an occupational health report was provided on the claimant by Medigold Health. This followed the claimant’s return to work from a long period of sickness absence because of contracting COVID, following which he developed pericarditis. The reference to stress on this date, and I note that there are no references to anxiety, states as follows “as heart conditions were discussed particularly palpitations, we discussed stress and stress management. He spoke about the grievances that are happening in the workplace and these are a major factor in the stress felt. He also talked about work overload, and that although he is phasing back he already feels the pressure to do more work outside of his normal work duties i.e. the course leader role… there are no other health issues to take into consideration…”.

[46]The report concluded that the claimant was fit for his full contractual role with support.

[47]The next relevant entry, for reasons which I shall deal with below, is on 16 June 2022 when the claimant told his GP that he had a rash in his groin which, on examination was found to be ‘intertrigo’. There is no reference to this rash having been caused by or related to stress or anxiety. There is in the GP record a follow up note on 27 June 2022 referring to the rash but again this makes no reference to it being stress or anxiety related.

[48]The next relevant entry, again for reasons which will become apparent below, is on 4 December 2022 when the claimant presented with a sore throat. He was given general advice about this but there is no reference to the sore throat being related to or caused by stress or anxiety.

[49]On 31 March 2023 the claimant had an ‘Access to Work’ meeting with the Department for Work and Pensions. The report from that meeting stated that the claimant had anxiety and work-related stress. The plan was that he go for an occupational health assessment. In the report a number of questions were asked of the claimant and one of those was how often he felt that his mental health was affecting his ability to do his job and the claimant confirmed that this “never affects me”.

[50]The claimant attended an occupational health appointment on 4 April 2023. The report from that says that the claimant can have chest tightness and shortness of breath if faced with stressful situations, although this is not as a result of stress per se, it is said to be a residual symptom of the pericarditis which had by then cleared up. The report confirms that the claimant was receiving counselling for stress, which he had arranged himself, and the cause of the stress was said by the claimant to be work related. The claimant confirmed that as well as his lecturing role, he was also 8 of 16 acting as a union representative and working with the equality and diversity department. The report concluded that the claimant was fit to work with adjustments, the adjustment being not taking on the extra responsibilities of course leader.

[51]The claimant visited his GP again on 24 April 2023 and at that encounter he informed the GP that he was having private therapy for mental health because of work related and personal stressors. He was not then on any medication.

[52]The next reference to stress in the GP notes is on 19 May 2023. At his appointment the claimant was said to have presented “quite stressed as he feels that his boss is trying to get him to take on more responsibilities when he is barely coping now”.

[53]The GP issued a fit note to say he could work without the extra responsibilities. It is unclear when the claimant started, however at the time of this GP visit he was taking a mild dose of sertraline.

[54]On 17 July 2023 the claimant again attended his GP and the note states that he discussed his ongoing stress and depression and the claimant stated that he “feels that work is overburdening him” but he did not wish to be signed off sick.

[55]At the GP visit on 12 September 2023 the claimant said that he still felt very stressed “especially with the attitude of his immediate superior” but that he did not wish to be signed off sick.

[56]On 24 October 2023 the claimant again attended the surgery and the comment in the GP notes state that the claimant says he has ”ongoing anxiety and has been told by therapist this is generalised anxiety disorder. He has clearly had anxiety for a while… this is made worse by his work situation”

[57]At this point the claimant said he would benefit from time off work, and he was indeed signed off sick. He never returned to work.

[58]There is a further occupational health report by Medigold on 2 November 2023. The claimant told the doctor on this occasion that he felt unable to continue at work because of being put under pressure at work. The claimant told the doctor that he would like to resume work but “does not feel able to until the disciplinary process is concluded, and he is reassured that he is not under pressure to take on a specific additional workload and responsibility”.

[59]The report goes on to say that the claimant “reports being able to perform normal activities of daily living and to care for his family, although he finds a number of tasks are affected by his symptoms and this affects his ability to complete tasks and care optimally for his family”. 9 of 16

[60]On 6 November 2023 the claimant’s therapist sent an e-mail to the claimant the body of which is addressed “to whom it may concern” in which she sets out her view of the claimants then current mental state. This is not a particularly helpful document because essentially it sets out what she and the claimant discussed, that the claimant was proactive in wanting to improve his mental health and that it was beneficial for him to undertake activities outside of work. It says nothing about him suffering from generalised anxiety disorder although it does refer to “stress and anxiety” in a general sense.

[61]The claimant again attended the GP surgery on 14 November 2023 and the comments in the GP record note that “work are arranging a disciplinary review as he declined to take on additional duties - very stressed by this”.

[62]It is a little unclear but at this point the claimant may have had trouble sleeping although he declined medication to deal with this.

[63]On 22 November 2023 Natalie Steele, a mental health vocational rehabilitation consultant working with an organisation called Maximus, wrote to the respondent essentially offering to assist in supporting the claimant through a scheme designed to assist employees who are struggling with their mental health within the workplace. It is clear from this that the key, overarching issue for the claimant in relation to his stress or anxiety was the respondent’s request or instruction that he take on the course leader role.

[64]There is a further ‘Access to Work’ report dated 1 January 2024. The report refers to the claimant struggling to sleep and although at this point, he was off work, and had been for some months, the report states that the claimant said that at this time his mental health affected his ability to do his job on a daily basis. He was, of course not doing his job at this time.

[65]The next entry of note from the GP record is on 17 January 2024. The claimant attended at his GP to discuss an assessment for autism spectrum disorder. In relation to anxiety, the note says that the claimant has “struggled with anxiety for some time now, felt better when away in Australia, worse again now. However has handed in notice and has signed new job contract for Imperial College London in a field that he's interested in…”.

[66]Although slightly outside of the material time in this case, it is worth noting the entry on 25 January 2024 which does not say that the claimant was diagnosed as having generalised anxiety disorder but that he has “anxiety and depression”.

[67]I turn lastly to the claimant’s most up-to-date disability impact statement which he made in June 2024.

[68]The claimant says that he suffered from general anxiety disorder all of his life. There is no evidence of this in the contemporaneous medical evidence. He also says that he has autism and states that the combination of autism and anxiety meant that he could not cope with the responsibility of being a course leader as result of which he 10 of 16 stepped down from that role originally in 2018. At this stage of course the claimant had not been assessed as being autistic (and still has not been so assessed).

[69]The claimant says in his statement that during the period January 2022 to February 2024, he suffered daily substantial cognitive signs and symptoms as follows: 69.1. slow recall, 69.2. slow verbal articulation, 69.3. worsened dyscalculia, 69.4. unable to cope with normal social interactions, 69.5. mental and emotional fatigue/reduced capacity, 69.6. reduced toleration of loud noises, 69.7. reduced concentration, 69.8. intrusive thoughts.

[70]There is no evidence in the bundle of any of these ‘cognitive signs and symptoms’.

[71]The claimant says that for the same period he suffered the following physiological signs and symptoms: 71.1. insomnia, 71.2. night terrors, 71.3. angina, 71.4. arrhythmia, 71.5. vertigo, 71.6. disabling fatigue, 71.7. skin rashes, 71.8. mouth ulcers, 71.9. bowel and bladder dysfunction, 71.10. haemorrhoids, 71.11. sexual dysfunction, 71.12. heartburn and indigestion, 71.13. shortness of breath, 71.14. headaches.

[72]In the contemporaneous medical evidence there is, in the material period, a reference to one rash one night terror, mouth ulcers, one discussion about ED, and shortness of breath. At no point does the medical evidence suggest that any of these are caused by or connected to anxiety.

[73]The claimant also says that during the same period he suffered the following daily emotional and social problems 73.1. maintaining a relationship, 73.2. exhausted when he wakes up 73.3. struggling to sustain conversations with family call my friends or colleagues, 73.4. breaking down into several times a week, 73.5. anxiety attacks several times a week.

[74]Again, there is no reference to these in the medical evidence in the relevant period. 11 of 16

[75]Finally, the claimant says that he suffered difficulties with the following daily tasks: 75.1. planning, scheduling and meeting deadlines, 75.2. following instructions, 75.3. using computer screen for more than 20 minutes at a time, 75.4. sitting still for longer than 20 minutes at a time, 75.5. reading/evaluating/entering data, 75.6. managing household and parental duties, 75.7. interacting with people, 75.8. capacity for multitasking and managing multiple deadlines is significantly reduced, 75.9. recall and memory is poorer, 75.10. Difficulty in interpreting train timetables, 75.11. difficulty driving, 75.12. difficulty remembering to defrost or prepare ingredients for family meals, and 75.13. difficulty remembering the starts of meetings, despite notification/reminders.

[76]Again, there is no reference to these in the medical evidence in the relevant period.

[77]I also note that during the material period the claimant considered his position with the respondent, prepared a CV, looked for and applied for jobs, attended an interview and obtained new employment and resigned from the respondent. He also, without any assistance, commenced early conciliation, drafted and submitted his claim to the ET.

[78]In his evidence the claimant confirmed that of his own volition he ceased taking sertraline prior to the expiry of his prescription. The claimant makes no claims about feeling any different during any period when he was taking sertraline when compared with the period when he was not taking it. I conclude that taking or ceasing taking the medication made no difference to how the claimant felt or coped.

Discussion and conclusions

[79]The first issue is at the material time, did the claimant have a mental impairment?

[80]Given all of the evidence and findings of fact I have made from the evidence, I find that the claimant was not at any time prior to October 2023 suffering from generalised anxiety disorder. It is true that he had on occasion suffered from stress or anxiety (the terms appear to be used interchangeably) and I accept that it seems that during his therapy sessions he has stated that this has been an ongoing issue for many years but the reality from his GP record is that this does not appear to be the view of the various medical practitioners at his GP surgery.

[81]Looking at the medical evidence it seems to me that there was a period of around five months between March 2023 and July 2023 when the claimant reported that he was suffering from work related stress or anxiety (again the terms appear to be used interchangeably). The claimant also told his GP that he felt stressed during September 2023, and it is possible that the claimant was suffering from work related 12 of 16 stress at this time, that is the stress of being required to take on a course leader role until he went off sick in October 2023. That would make the period in which he was suffering from work related stress in relation to the requirements to undertake the course leader role around 8 months in total.

[82]But by October 2023 the respondent had accepted the claimant was not going to take on the course leader role and began disciplinary proceedings which the claimant says caused him stress.

[83]I note two things about the medical evidence up to this point. The first is that there is no general use of the term ‘anxiety’ whether by the GPs the claimant saw, the therapists or the claimant himself. At points the claimant present with anxiety and at other points he is said to present with stress (and on one or two occasions, depression although that never appears to be formally diagnosed).

[84]In giving his evidence, the claimant accepted that stress and anxiety are not synonymous and, in any event, his contended for disability is generalised anxiety disorder, for which there is effectively no evidence. I accept that in October there is a reference in the GP records to generalised anxiety disorder and I accept the claimant submission that it is likely he was suffering from generalised anxiety disorder prior to it appearing in his GP notes but he did not put a date on when he says he began suffering from generalised anxiety disorder because of course in his disability impact statement he says this has been a lifelong condition but there is no evidence to support that assertion.

[85]To take the claimant’s case on this point at its highest, if we ignore the ‘generalised anxiety disorder’ label he has used and concentrate on simply ‘anxiety’ (these are arguable not the same but this may be a labelling issue so giving the claimant the benefit of any doubt) I should consider whether the claimant suffered from what he referred to as chronic (in the medical sense of long term) anxiety.

[86]At no point does he rely on stress as a disability.

[87]The second point to note is that by November 2023 the claimant reported that he was able to perform normal activities of daily living and to care for his family, although he did say that he “finds a number of tasks are affected by his symptoms and this affects his ability to complete tasks and care optimally for his family”. It is unclear what the claimant meant by ‘optimally’ in relation to completing tasks and care and he did not elaborate on this in his statement or in his oral evidence.

[88]So was the claimant suffering from chronic anxiety during the material period?

[89]Considering all of the evidence I am left with the conclusion that for a period of time, around eight months the claimant was suffering from work related stress and/or anxiety as a reaction to his employer’s wish for him to take on a course leader role. I accept also that claimant has suffered from stress and/or anxiety in the past, but the medical evidence would not suggest that there is a likelihood of recurrence of this in any abstract sense.

[90]The point to note about anxiety is that it is a normal response to a stressor. It will only recur if there is a stressor that triggers an anxiety response. This is different from generalised anxiety disorder which is a which is is a mental health condition 13 of 16 that involves persistent anxiety that can interfere with daily life and that does not, it seems to me appear to be the case here.

[91]In any event., it seems to me a moot point whether the claimant was suffering from chronic stress or generalized anxiety disorder for the reasons set out below.

[92]I find that the claimant was not suffering with generalised anxiety disorder prior to the reference to that condition in October 2023. Notwithstanding that reference, and given no further reference to the disorder in the contemporaneous medical evidence, I find that the claimant does not meet the requirement of having the mental impairment of generalised anxiety disorder for the purposes of section 6 of the Equality Act 2010 from October 2023.

[93]I do find that the claimant was suffering with stress or anxiety variously from March 2023 and it is possible that that is a mental impairment which could amount to a disability, and I should therefore go on to consider the second of the question I have to deal with.

[94]The second question then is whether the claimant’s anxiety affected his ability to carry out normal day-today activities (the ‘adverse effect condition’).

[95]In short, the answer is it did not for the reasons which follow.

[96]Whilst I hesitate to suggest the claimant was being less than honest in his disability impact statement, the reality is that there is a significant, indeed overwhelming difference between what he reports in his statement as the impacts of his impairment and what is to be found in the contemporaneous medical evidence.

[97]At its very highest, during the material time the claimant can be said to have had some difficulties sleeping, one example of a rash, a suggestion from him that he might have had a Vertigo like symptom and possibly one example of a night terror.

[98]According to the contemporaneous medical evidence none of these are found to have been linked to anxiety although I accept that this is the claimant’s genuinely held belief. However, there are no references in the contemporaneous records of most of the concerns which the claimant sets out and which I have recorded at paragraphs 69 to 75 above.

[99]Given the number of times the claimant accessed his GP practise before, during and indeed after the material time, given the occupational health reports and the Access to Work reports as well as information from the claimant’s therapist and support worker, it is surprising that almost none of the impacts which the claimant refers to in his impact statement is referred to in the contemporaneous documentation.

[100]When this was put to the claimant at the hearing, he suggested that his GP appointments were too short for him to raise these matters, but I cannot accept that proposition. If the claimant genuinely believed that he was suffering from some or all of these anxiety related ailments and adverse impacts it is reasonable to believe that would appear, however briefly, noted in the medical record or at least it would be extraordinarily surprising if they did not. 14 of 16

[101]But there is no reference in any of the contemporaneous records to the claimant suffering any difficulties undertaking his work save for the ongoing dispute about him refusing to take on the course leader role and its fallout, or with his union duties or other volunteering he did. On the evidence, it seems to me that when the claimant was at work he appears to have done his job to the best of his ability without any or any substantial difficulty and the only place there appears any suggestion of any difficulty with work, such as difficulty concentrating, difficulty reading or assessing data and so on is in the disability impact statement and nowhere else and I cannot accept that as credible particularly given the vast amount of contemporaneous documentary evidence before me.

[102]For those reasons I find that the claimant’s anxiety (whether chronic or otherwise) did not have an adverse effect on the claimants ability to carry out normal day-today activities.

[103]Having made that finding it is not necessary for me to consider whether the condition was substantial or whether it was long term.

[104]However, in brief, I can say that given my findings above in relation to normal day-to-day activities, any impact that there was, was not substantial for the same reasons I have set out above.

[105]In relation to the question of long term, as I have indicated above, it is extremely difficult to say that the anxiety that the claimant had resulting from his difficulties at work were likely to last for 12 months because that would have depended on whether the issue causing the anxiety was going on for that period. As we know, the claimant resigned in January 2024 thus in effect resolving, or at least crystalising the workrelated stressor – the requirement to undertake the course leader duties.

[106]But even if I am wrong about that I take the two remaining points raised by Mr. Kennedy.

[107]The first point derives from the case of Herry v Dudley Metropolitan Council

2017 ICR 610

EAT, that the claimant’s anxiety was always a reaction to workplace circumstances, and the evidence shows that there was little or no apparent adverse effect on the claimant’s ability to carry out normal day-to-day activities (as discussed in detail above), and therefore the claimant does not meet the definition of disabled within section 6.

[108]The second point derives from the case of Saad v University Hospital Southampton NHS Trust and anor EAT 0184/14, that any impacts which the claimant referred to and which are supported by the contemporaneous documentation did not amount to substantial and long-term adverse effects on the claimant’s normal day-to-day activities. The impacts amounted to, if the claimant is to be believed and taking his case at its highest, principally a stress related rash, one instance of a stress related night terror and what the claimants believed to be a Vertigo like event.

[109]For all of those reasons I find that the claimant did not, at the material time, meet the definition of disabled for the purposes of section 6 of the Equality Act 2010. 15 of 16