Mr G J Boswell v Office for National Statistics and Sir I Diamond: 3202168/2023 Mr G J Boswell v Office for National Statistics and Sir I Diamond: 3202168/2023
EMPLOYMENT TRIBUNALS
Case No 3202168/2023
Between
Mr G J BoswellClaimantOffice for National Statistics and Sir I DiamondRespondent
Before
Employment Judge IllingIn person for claimantMs Garner (instructed by Counsel) for respondentDate 15 May 2025
JUDGMENT
[1]At the relevant times, the Claimant was not a disabled person as defined by section 6 Equality Act 2021 because of anxiety and depressive disorder.[2]The Claims of discrimination arising from disability (s.15 Equality Act) and failure to make reasonable adjustments (ss. 20 & 21 Equality Act) are therefore dismissed.
REASONS
[1]This was the fourth preliminary hearing of this matter, which was listed as a public hearing to determine the question of whether the Claimant was disabled at the relevant time. It was also listed to hear the Claimant’s applications to amend his claim and make further case management orders as required.
The Hearing
[2]The Tribunal was provided with a bundle of 2236 pages, which included the Claimant’s medical evidence and Disability Impact Statement.[3]At the outset of the hearing, the Claimant asked for an email thread to be included in the bundle. Upon review, it was clear that the Claimant’s email was a continuous thread of an email the Respondent had recently included in the bundle. This email was therefore included at the back of the electronic bundle. Being 5-pages long, it was numbered 2237 – 2241.[4]The Tribunal heard evidence from the Claimant. Given that the Claimant was not represented, whilst still under Oath, he was permitted to comment on or clarify any of the answers he had given during cross examination. Findings of fact for disability[5]The Claimant asserts that he is a disabled person because of a mental impairment that is anxiety and depressive disorder.[6]The Respondent denies that the Claimant was a disabled person at the relevant time, or at all.[7]The Claimant was employed by the first Respondent as a Field Interviewer from 9 October 2017 until his dismissal on 27 June 2023. Medical Evidence[8]The Claimant produced his GP records and other relevant documents from consultants to whom he had been referred.[9]The medical evidence was reviewed in evidence, and I summarise this as follows: 9.1. On 20 August 2019 the Claimant attended the GP in relation to fatigue. He had been having issues with the Respondent as to the number of sick days he had had and that he was seeking a supportive letter for independence allowance, i.e. for individuals with a chronic disability. The GP refused to support this but offered to refer the Claimant for investigations into his fatigue, including a sleep referral and to the Chronic Fatigue Syndrome team. The GP also confirmed that the Claimant had a diagnosis of anxiety and depression from this date. 9.2. The GP report of 13 August 2020 records that the Claimant told the GP that his symptoms were intrinsically linked to an ongoing situation at work and that his mood remained good. 9.3. The Claimant was signed off as unfit for work on 14 August 2020. The fit note gave the diagnosis of stress at work. 9.4. The Claimant did not return to work until his dismissal on 27 June 2023. He obtained 19 further fit notes to cover this period, all of which give the diagnosis of Stress at Work. 9.5. The GP records linked to the fit notes record the following: 9.5.1. 14 August 2020 – mood stable, doesn’t feel fit to return. 9.5.2. 26 August 2020 – stress is situation dependent 9.5.3. 4 December 2020 – ongoing issue at work, Occupational Health have stated unfit until issues addressed and resolved 9.5.4. 23 Feb 21 – ongoing issues at work, mood stable 9.5.5. 26 Nov 21 – panic attacks possibly related to anxiety, low moods, anxiety caused by ideological harassment. 9.5.6. 10 Oct 22 – panic attacks, all work related; legal process is a fulltime job causing him stress and seeking 6-months off. 9.5.7. 25 Oct 22 – confirms that he would go back to work if they (Respondent) apologised 9.5.8. 3 Jan 23 - moods and sleep ok before Christmas. Related to employer rather than an un-named person. 9.5.9. 5 Jan 23 – stress at work ongoing 9.5.10. 21 March 23 – stress at work due to the appeals process 9.5.11. 25 May 23 - stress at work due to ongoing appeals 9.5.12. 1 August 23 - stress at work due to recently dismissed 9.5.13. 30 Aug 23 - stress at work due to appealing decision[10]In 2019 and into 2020, the GP records show that the Claimant’s fatigue was investigated and it was determined that his testosterone levels were normal, his sleep was normal and that his echocardiogram (heart function) was also normal.[11]Other relevant GP records since August 2020 record the following: 11.1. That in response to a request from the Claimant for a benefit application form the Civil Service, on 11 October 2021, the GP confirmed that the Claimant had a history of anxiety and depression that pre-dated the issues at work. 11.2. On 10 August 2023, the Claimant was diagnosed with mixed anxiety and depressive disorder. That there were ongoing issues at work and that the legal proceedings had caused his moods to deteriorate, in turn causing stress and anxiety. The Claimant had told the GP that he was not able to concentrate, that he felt isolated and that he had a lack of selfcare including cleaning his teeth and avoiding showers. 11.3. On 16 August 2023, the Claimant’s GP provided a letter [377] to whom it may concern. This conformed that the Claimant had a diagnosis of mixed anxiety and depressive disorder and that his mental state stems from an occupational dismissal. The purpose of the letter was to request more time for the Claimant to prepare for any ongoing proceedings, including these legal proceedings. 11.4. On 4 January 2024, the Claimant asked his GP for a further letter as he couldn’t sleep or focus due to the court cases. He told the GP that once the cases were over, his mood would improve.[12]The GP summary records from 18 June 2024 the following: [701] Active conditions: 10 Aug 2023 – Mixed anxiety and depressive disorder 10 Jan 22 – Echocardiogram normal 20 Aug 2019 – Depressed mood 10 Jan 2018 – Fatigue Significant past: 14 Aug 2020 Stress at work Medication: No current medication[13]I find that the GP records were consistent with a diagnosis of stress at work as the reason for the Claimant’s absence from work.[14]I find that the GP records are intermittent and at times inconsistent regarding the diagnosis of anxiety and depression, until the diagnosis on 10 August 2023. There are earlier references to anxiety and depression including on 11 October 2021 and 20 August 2019. I find that the Claimant was diagnosed with anxiety and depression from 20 August 2019. Medication[15]Whilst the GP did discuss anti-depression medication with the Claimant, the Claimant confirmed that even when he agreed to it being prescribed, he did not take it. Nor did he utilise talking therapies.[16]The Claimant occasionally took propranolol to relieve palpitations from panic attacks and was also prescribed a sleeping tablet. He did not regularly take the sleeping tablets. Benefit application[17]On 12 October 2021, the Claimant’s GP wrote to the Health Management team on behalf of the Claimant with a view to obtaining an injury benefit for him. The benefits team sought further information from the GP and in response to a question from the GP, the Claimant emailed his GP on 12 November 2021 [792] referring to an earlier cardiologist report from 24 October 2018, which had attributed the symptoms (panic attacks) to a stressful personal event earlier in the year. These events were the events in Bristol where the Claimant felt that he had been publicly shamed because of his liberal political beliefs.[18]The Claimant then informs the GP that “The events that later transpired at my workplace in 2020 took a remarkably similar form. As far as I’m concerned my episodes of anxiety in 2018 and 2020-1 were both caused by ideological harassment.”[19]On 17 December 2021, Health Management gave their outcome to the Claimant in relation to his application for injury benefit. The Claimant’s application was rejected for the following reasons: 19.1. The sickness absence records back to September 2018, of six absences, unhelpfully record each absence as “sickness”. 19.2. That the Claimant was experiencing problems related to stress and anxiety. 19.3. That the medical report had informed them that the Claimant had a long history of anxiety and depression and that the recent events at work had exacerbated them. 19.4. It was accepted that the pre-existing mental health issues had caused the symptoms and that the events at work had exacerbated them. 19.5. Benefits were denied because the injury benefit scheme was not designed to accommodate exacerbations of pre-existing conditions.[20]I find that the Health Management board accepted that the Claimant was suffering from stress at work and that the Claimant had a pre-existing condition. Occupation Health Report [957][21]The Claimant underwent an Occupational Health review on 25 August 2020. Within the report the Claimant confirmed that his sickness absences were in response to recent communications at work, which were impacting on his capacity to function well.[22]The Occupational Health reports that “A stress reaction is a transient condition that develops in an individual without any other apparent mental disorder in response to exceptional physical and mental tension. Individual vulnerability and coping capacity play a role in the occurrence and severity of acute stress reactions….”[23]The Claimant told the OH provider that he had no notable medical history other than his current stress and anxiety, which he attributed to his work. From the conversation, the OH provider confirmed that they agreed that this was the case.[24]The OH provider conducted a series of tests and determined that the Claimant had a moderate depressive response and his anxiety was mild.[25]With regards to a return to work, the provider stated that this appeared to be an issue for the organisation and not OH. The Claimant’s symptoms were situational and that if the organisational issues were resolved then his symptoms would improve. The provider confirmed that the Claimant had told them that he has no difficulties ordinarily.[26]Whilst further OH reviews were offered, the Claimant refused to attend. The Claimant stated in an email of the 26 May 2023 [2266] that the reason for the refusal was as follows: 26.1. That OH had stated that he was not mentally disabled, he was having a stress response to a stressful situation. 26.2. That OH had stated that his symptoms would persist until the organisational issues were addressed. 26.3. That the solution was to address the organisational issues 26.4. That this was an issue for the organisation not for OH 26.5. That there was no reason to have a new OH report, and that he was not refusing a new report, but that he was trying to understand why a “reasonable actor” would ask for a second report before making a good faith effort to action the first. The Claimant was seeking an apology from the organisation to confirm that “his deeply held liberal antiracist beliefs do not make me a threat to my colleagues”.[27]I find that the Claimant did refuse further OH reports, but that he was relying on the first and was seeking for the first report to be actioned before obtaining a second. I find that the Claimant was unwilling to return to work and that he still believed that the reason for his ill health was the failure by the Respondent to act on the first report by giving the Claimant what he sought, which was an apology. Disability Impact Statement [1906][28]Within the Disability Impact Statement and in evidence, the Claimant stated that he had suffered from anxiety and depression since he was a teenager.[29]The Claimant states that his anxiety and depression manifests itself as fatigue meaning that he limits work that he does each week.[30]The Claimant confirmed that whilst he had occasionally been prescribed medication and talking therapies, he had not used these.[31]A symptom of this impairment, the Claimant states, are panic attacks and he details those in 2018 and latterly in March 2023.[32]The Claimant confirmed that he had suffered certain events in his life in 2018. He confirmed in evidence that this also related to his ideological beliefs.[33]There are limited examples of the impact of the anxiety and depressive disorder on the Claimant prior to the events in August 2020. These include fatigue and the Claimant taking sick days and then catching up on work. The Claimant limited his workload to the Labour Force Survey and his own YouTube Channel and he was able to continue to work.[34]The Claimant reports an increase in his symptoms following the events at work that led to his sickness absence in August 2020.[35]The day-to-day activities asserted by the Claimant are diminished self-care, where he would have baths as he did not have the energy to shower and that he stopped brushing his teeth and stopped shopping, relying on ready meals. He also states that he isolated himself. The Claimant does not provide any dates for this. The GP reports that reflect this is dated 10 August 2023, which attributes the cause back to ongoing issues at work and confirms the diagnosis of mixed anxiety and depressive disorder.[36]There are no further GP reports of issues with self-care. Other documents[37]On 17 April 2021, the Claimant resigned from his second job as a concierge stating that he had a low mood, brain fog and pains in his chest, which he thought were stress related. He related this to the ongoing investigation into the bullying scandal at work. Relevant Dates[38]The relevant dates put forward by the Respondent are 13 August 2020, being the first identifiable date of an allegation of disability discrimination until 15 November 2023.[39]I find that the relevant period is 13 August 2020 – 15 November 2023. The law Disability Section 6 of the Equality Act 2010 provides: 1. A person (P) has a disability if –a. P has a physical or mental impairment, andb. 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 a 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, 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. 9 In considering the question of disability, I have also had regard to the following: 9.2 The Equality Act 2010, guidance 9.3 The statutory guidance of Guidance on Matters to be Taken into Account in Determining Questions relating to the Definition of Disability; and 9.4 The Equality Act 2010 Schedule 1: Part 1: Determination of Disability 9.5 The Equality and Human Rights Commission Code of Practice on Employment (2011) Appendix 1: Meaning of disability 10 Whether an adverse effect is 'substantial' or not may vary according to the time at which the assessment is made and the period over which it is considered. 11 In All Answers Ltd v Wes, [2021] IRLR 612 the question was the assessment of the likelihood of the adverse effect lasting for 12 months. The Court of Appeal relied on McDougall v Richmond Adult Community College [2008] [IRLR 227, 2008] ICR 431 to hold that this assessment must be made as at the date of the alleged discrimination and must not take into account anything only known or occurring after that time. Therefore, whether the issue under consideration is if a condition is 'recurring' or 'long term', or if there is a substantial adverse effect, the approach must be the same, namely, to assess what would have been the position as understood at the date of the alleged discrimination. This seems also to be consistent with the approach of the House of Lords in London Borough of Lewisham v Malcolm [2008] UKHL 43, [2008] IRLR 700. 12 When the severity of an impairment is in issue, the tribunal will be faced with conflicting evidence and will have to exercise its judgment in deciding what is, essentially, a question of fact and degree. In Paterson v Comr of Police of the Metropolis [2007] IRLR 763, [2007] ICR 1522, EAT, Elias J (at para 68) formulated the correct approach for deciding on the severity of a disabling condition as involving inquiry as to 'how the individual carries out the activity compared with how he would do it if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a crosssection of the population, then the effects are substantial.' 13 I have considered the case of J v DLA Piper [2010] ICR1052(1) at paragraph
The law
[42]Specifically, “The second is not characterised as a mental condition at all but simply as a reaction to adverse circumstances (such as problems at work) or – if the jargon may be forgiven – “adverse life events”. This continues to state “a reaction to adverse circumstances: it is a common sense observation that such reactions are not normally long-lived.” 14 DLA Piper is cited in Herry v Dudley Metropolitan Council [2017] ICR 610, in that stress, as a reaction to adverse life events, is not in itself a mental impairment, even if it results in a long-term absence from work. “Although reactions to adverse conditions are indeed not normally longlived, experience shows that there is a class of case where a reaction to circumstances perceived as adverse can become entrenched where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day-to-day activities. A doctor may be more likely to refer to the presentation of such an entrenched position as stress than as anxiety or depression. An employment tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made be an employment tribunal) are not of themselves mental impairments: they may simply reflect a person’s character or personality. Andy medical evidence in support of a diagnosis of mental impairment must of course be considered by an employment tribunal with great care; so must any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee’s satisfaction; but in the end the question whether there is a mental impairment is one for the employment tribunal to assess.” 15 Additionally, I have considered Mutombo-Mpania v Angard Staffing Solutions Ltd UKEATS/002/18/JW at paragraphs 14 and 17 of the discussion, which reminds the Tribunal that the burden of proof is on the Claimant to show that they fall within the Statutory definition of a disabled person. It is for the claimant to provide evidence and information about particular activities, work related or otherwise, that they are unable to undertake or that were adversely affected by the impairment. Submissions40. The Respondent provided helpful skeleton arguments, which the Tribunal has taken into consideration and the Claimant was afforded the opportunity to address the Tribunal with his closing submissions. Conclusions41. The Claimant has obtained medical evidence from his GP and other specialists for the Tribunal to review. 42. It is the Claimant’s position that he has a long history of anxiety and depression and that this was the reason for his absence from work. He states that the impairment impacted his day-to-day-life in that it impacted his self-care and his ability to work.
Conclusions
[43]It is the Respondent’s position that the burden of proof to prove disability rests with the Claimant and that the Claimant has not provided medical evidence of his conditions and nor has he provided evidence of the impact on his day-to-day activities. Furthermore, the Respondent asserts that the Claimant’s impairment was a response to adverse life events, including stress at work and the stress at work from August 2020 onwards. The respondent denies that the Claimant is a disabled person.[44]The impact statement is a well-structured comprehensive document, which was supported by detailed closing submissions from the Claimant. I am reminded that the question of disability is in relation to the relevant period.[45]I remind myself, a clinically diagnosed mental or physical impairment does not automatically amount to a disability. Likewise, an undiagnosed physical or mental condition may amount to a disability. The question of whether a person is a disabled person is a legal test and it must be evidenced with evidence of the impact of the impairment on the day-to-day life of the Claimant. Disability[46]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? The Tribunal will decide: Did they have a physical or mental impairment: anxiety and depressive disorder? 46.1. I have found that the Claimant was first diagnosed with anxiety and depressive disorder on 20 August 2019 and that this was re-diagnosed on 11 October 2021 and then on 10 August 2023. 46.2. The Claimant has the mental impairment of anxiety and depressive disorder. Were the effects of the impairment long-term? The Tribunal will decide: did they last at least 12 months, or were they likely to last at least 12 months? if not, were they likely to recur? 46.3. The effects of the impairment did last more than 12-months, and it did reoccur. I find that the impairment was long term. Did it have a substantial adverse effect on their ability to carry out day-to-day activities? 46.4. There is limited evidence for the effect of the impairment on the Claimant in relation to day-to-day activities. 46.5. Prior to the relevant dates, the Claimant was coping at work and has not evidenced any impact on his day-to-day life. 46.6. After the events of the 13 August 2020, where the Claimant is signed off sick from work, I have found that the reason given by the Claimant to his GP and the reason on the fit notes is stress at work. 46.7. Other than the absence from work, there is no evidence of any impact on the Claimant’s day-to-day life except only to the reference of self-care. I have found that this is supported by GP evidence in August 2023, which was shortly after the Claimant’s dismissal and was short-lived. This is the only record of an impact of the kind asserted by the Claimant. 46.8. I conclude that there was no substantial adverse effect on the Claimant’s day-to-day life. If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment? 46.9. The Claimant was offered medication to assist him with his condition, but he did not accept this assistance. 46.10. The Claimant was also offered talking therapies, but again, he did not take up this assistance. Would the impairment have had a substantial adverse effect on their ability to carry out day-to-day activities without the treatment or other measures? 46.11. The Claimant did not accept medical assistance by way of medical or talking therapies, so there was no impact on the effect of these on the Claimant’s day-to-day activities.
Conclusion
[47]I have considered the evidence before me including the contemporaneous documentation and the disability impact statement, alongside the Claimant’s own evidence. I have found that the Claimant was unwilling to return to work until the issues in the workplace were resolved.[48]I am satisfied that but for the issues in the workplace, the Claimant suffered little or no adverse effect from his impairment on his day-to-day activities, which is evidenced by his day-to-day life before the events at work in August 2020. I am satisfied that the Claimant’s reaction resulting in his absence from work and the short period of lack of self-care, were adverse reactions to life events. I am satisfied that Herry v Dudley Metropolitan Council and J v DLA Piper both apply here.[49]On balance, I conclude that at the relevant times, the Claimant was not a disabled person as defined by section 6 Equality Act 2021 because of anxiety and depressive disorder.[50]The Claims of discrimination arising from disability (s.15 Equality Act) and failure to make reasonable adjustments (ss. 20 & 21 Equality Act) are therefore dismissed.