RS v The Commissioner of Police of the Metropolis: 3301229/2025
EMPLOYMENT TRIBUNALS
Case No 3301229/2025
Between
RSClaimantThe Commissioner of Police of the MetropolisRespondent
Before
Employment Judge AnnandMr Deane (instructed by Counsel) for respondentDate 10 July 2026
JUDGMENT
[1]At the relevant times the Claimant was a disabled person as defined by section 6 of the Equality Act 2010 because of a) anxiety and b) fluid in her ear/an aural impairment.
REASONS
[1]The Claimant is currently employed by the Respondent as a Communications Officer. The Claimant brings a range of claims against the Respondent for different types of disability discrimination, including discrimination arising from disability, indirect discrimination, a failure to make reasonable adjustments, and harassment. The Claimant contacted Acas for early conciliation purposes on 17 December 2024, and the certificate was issued on 28 January 2025. The Claimant submitted a Claim Form on 27 February 2025. The relevant period for the purposes of the disability discrimination claims is between 1 October 2024 and 27 February 2025.[2]In this case, the Claimant relies upon a range of different impairments which she says amount to a disability within the meaning of section 6 of the Equality Act. The Respondent has conceded that in respect of the majority of the conditions relied upon, the Claimant’s condition does meet the relevant test under section 6. The disabilities which are not in dispute are Endometriosis, IBS, Polycystic Ovary Syndrome, Chronic Angioedema and Urtica, including susceptibility to multiple allergies linked to Angioedema, ADHD, Autism, Dyslexia and Dyspraxia.[3]The Respondent did not concede that the Claimant was disabled over the relevant period by virtue of having 1) anxiety and 2) persistent fluid in her ear/aural impairment.[4]At a Case Management preliminary hearing held on 8 January 2026, a public preliminary hearing was listed for 2 June 2026 to decide if the Claimant met the definition of disabled, over the relevant period, as set out in section 6 of the Equality Act in respect of those two conditions.[5]At the hearing, I had the benefit of skeleton arguments from both representatives, the Claimant gave evidence and was cross examined about the contents of her Disability Impact Statement, and I was provided with two bundles of documents. After the Claimant was cross examined, the parties made submissions. I did not have time to review all the paperwork and reach a decision and so I reserved my decision.
Findings of fact
[6]In June 2018, the Claimant was diagnosed by her GP as having a Generalised Anxiety Disorder and a panic disorder. She was referred to the primary care mental health team. It was recorded that she told her GP that she was waking up with panic attacks. She said she felt nervous anxious or on edge nearly every day. She was not able to stop or control worrying, and had trouble relaxing, on more than half the days. She reported she worried too much about different things, became easily annoyed or irritable, and was afraid that something awful might happen nearly every day.[7]On 28 May 2019, the Nurse Practitioner at the Claimant’s GP surgery wrote a letter in which she noted the Claimant has panic attacks, anxiety, and suffers with multiple allergies.[8]On 12 December 2020, a Consultant Allergist wrote a letter regarding the Claimant’s reaction to medicines. The letter detailed that within 10 minutes of taking two paracetamol tablets she had swelling of the lips. She was admitted to hospital overnight and also had a tight feeling in her throat. She had similar experiences when taking Naproxen, Codeine, and Flucloxacillin. The letter noted she had multiple hospital admissions with presumed allergic reactions. The letter stated it was unlikely the reactions were an allergic reaction to the medicine, but the most likely explanation is that she is prone to non-allergic urticaria and angioedema.[9]On 7 July 2022, an Occupational Health report was completed regarding the Claimant. In the report it was noted that the Claimant was suffering with symptoms of psychological issues, which she attributed to personal issues arising from being the victim of domestic abuse. It described the Claimant as suffering with disturbed sleep, low mood, and feeling upset and emotional sometimes. The Claimant was referred for 6 sessions of counselling.[10]In November 2022, the Claimant was seen again by a Consultant Allergist, who described that she continued to suffer with chronic urticaria and angioedema. The letter described the condition as having a severe impact on her quality of life and her ability to work. She referred to the Claimant having breakthrough episodes of redness and/or urticaria multiple times a day.[11]On 20 December 2022, the Nurse Practitioner at the Claimant’s GP surgery wrote a letter in which she referred to a number of the Claimant’s other conditions, including endometriosis, IBS, headaches, urticaria and angioedema. At the bottom of the letter, she set out an extensive list of medications prescribed to the Claimant in 2022. One of the prescriptions was for Amoxicillin due to “Eustachian tube dysfunction”. It was also confirmed that the Claimant carries an Epi-pen.[12]On 6 January 2023, the Nurse Practitioner at the Claimant’s GP surgery wrote a letter noting she had a sick note until 28 December 2022 but was still unfortunately reporting ear pain. She returned to work on 2 January 2023 but was sent home due to vomiting and a rash.[13]On 26 January 2023, the Claimant had a further Occupational Health appointment. In the OH report it was noted that she experiences chronic pain, nausea, sleep deprivation, reduced concentration, fatigue and tiredness.[14]In February 2023, the Nurse Practitioner at the Claimant’s GP surgery wrote a letter in which she referred to the Claimant as having a history of anxiety following a traumatic period in her life and noted she was taking action to help with this.[15]On 12 April 2023, the Claimant had a further OH appointment. In the OH report that followed, it was noted the Claimant told the OH advisor that she had an appointment in May 2023 to see an ENT specialist because she had an ear problem which had been “on-going since December”. The Claimant told the OH advisor that she was experiencing constant pain due to the ear problem and was experiencing fluid weeping from the ear. She had been given medication to manage it, but due to her allergies she was unable to take painkillers. She noted the pain was keeping her up at night and because of that she was becoming stressed which was exacerbating her other conditions, which were flaring up. She also reported feeling low in mood because of her ongoing symptoms.[16]On 23 May 2023, the Claimant saw an ENT Consultant Surgeon. In his letter he noted the Claimant was “still complaining of left otalgia”. It was noted she could not wear the headset for work. It was noted the Claimant would be referred for an MRI and stated the Claimant needed to take “adequate painkillers”.[17]On 18 July 2023, the Claimant was seen in the ENT department again. It was noted her symptoms “remained much the same”. She reported intermittent blockage of the left ear which was worse when she has a cold. She was advised to use an Otovent device to relieve the eustachian tube dysfunction and nasal decongestants.[18]On 3 August 2023, the Nurse Practitioner at the Claimant’s GP surgery wrote a letter to Dr Iqbal at Optima Health. In the letter she noted the Claimant was suffering with a range of conditions which caused pain or discomfort. It was also noted that she has severe chronic urticaria and angioedema. The urticaria was recorded as affecting her on a daily basis and the angioedema causing facial swelling, including to the eyes and lips, twice a week. It was noted she had a history of feeling low and having poor sleep, which was attributed to work. It was noted she was receiving counselling from her workplace. It was also noted that the Claimant was receiving support from Access to Work and was being provided with a taxi to and from work each day.[19]On 5 October 2023, the Claimant had an Occupational Health appointment. She reported that on 27 August 2023, she had an experience with an Uber driver which left her feeling frightened and anxious. The driver took some wrong turns and asked her inappropriate questions. In the report it was noted the incident had made her anxiety symptoms worse. It was noted she did not want to go out by herself, and stated that her concentration, appetite and sleep were poor. It was also noted that her emotions were up and down, she felt tired most of the time and was waking up exhausted. It was noted she was also anxious about some work issues as well. It was noted that it was hoped that counselling would enhance her coping strategies and resilience.[20]In her evidence to the Tribunal the Claimant explained that the Uber driver turned off the App, drove off the planned route, and on to the motorway. She was scared he was taking her to a place where he could rape her. She described him as flirting with her. She said he took her home after going to a service station. She reported the matter to the police and since the event felt very anxious about getting in a taxi each day. She had since discovered she could track the route the driver takes.[21]On 13 April 2024, the Claimant was a victim of a crime. She was kicked in the stomach. She reported back pain as a result.[22]On 9 May 2024, the Claimant saw Occupational Health again. It was noted she was unfit for work due to her existing medical conditions and also due to a decline in her mental health. It was noted her mental health had recently declined and the future course of the symptoms could not be predicted. It was noted she would be fit to attend a dismissal hearing, but it was likely the process would cause her additional psychological distress. It was noted the Claimant had engaged with her GP for support with her mental health and she planned to explore the management of her mental health in the hope of improving the symptoms.[23]On 3 June 2024, the Claimant had an appointment at the ENT department again. It was reported that she had 3 weeks of left ear pain and ear fullness. She was assessed as having a bilateral retracted ear drum with fluid in the middle ear. It was suggested she have a CT scan in a month.[24]On 10 June 2024, the Claimant saw Occupational Health again. It was noted she was fit to attend a dismissal hearing that was to be held on 11 June 2024. It noted she had ear symptoms including fullness in the ears, pain and reduced hearing on the left side. It was noted it was an on-going issue that had flared up recently. At the same appointment, the Claimant was assessed as being unfit for work. It was thought likely she would be able to return to work in 4 to 6 weeks “due to ENT issue, and also due to immune system condition.” It was noted her absence was not related to the referral issue which was that she was kicked in the stomach when she was the victim of a crime. It was noted the Claimant had become sick and unable to attend work from 24 May 2024 due to a worsening of her ear symptoms requiring treatment through the out of hours GP service. Her symptoms were reported as being pain, fullness and reduced hearing in the left ear.[25]On 17 July 2024, the Claimant saw Occupational Health again. In the report it was noted that the Claimant had ongoing symptoms in her left ear. She had a CT scan in June 2024 and was waiting for the results. The report described one of her conditions as “anxiety” and noted, “Anxious on going back after the dismissal hearing and worried about sickness absence.”[26]On 20 August 2024, the Claimant was assessed by a psychiatrist to see if she had ADHD. In a follow up letter from the psychiatrist, it was noted she was diagnosed with anxiety in 2018. She did not take medication and had not found therapy helpful. He noted that at present her mood was ok but could fluctuate. He noted the Claimant has a long standing difficulty falling asleep because of racing thoughts and overthinking. She wakes up a lot during the night being unable to sleep. He also noted she had no history of palpitations, other than anxiety related palpitations.[27]On 20 September 2024, the Claimant was referred by the ENT department to a consultant rhinologist due to the results of a CT scan of her sinuses. It was noted she had been discharged from the otology side.[28]On 10 October 2024, the Claimant saw Occupational Health again. In the report it was noted that the Claimant had been off work from 24 July to 29 August 2024 due to a flare up in her left ear symptoms. She described the symptoms as being severe ear ache, dizziness, fever, and feeling generally unwell. She described that she could not take the prescribed pain killers due to the response her body has when she takes pain killers. She described the pain as “unbearable” at times. It was also noted in the report that the Claimant was due to have day surgery for a gynecological issue on 14 October 2024, but there was the possibility it could cause a flare up in her autoimmune condition. The report noted that the Claimant’s anxiety was likely to flare up at times, and this was compounded by her other health issues.[29]On 8 February 2025, the Claimant was seen in ENT due to chronic tonsilitis. It had started in October 2024, and she had experienced six episodes since then.[30]On 21 February 2025, the Claimant was seen in the rhinology clinic. She was found to have eustachian tube dysfunction. It was noted she had a long-standing history of aural fullness and a pressure sensation in her left ear which was occasionally painful. It also noted she had a history of recurrent ear infections in the left ear. The CT scan showed a cyst in her right sinus and some thickening in the left sphenoid sinus. It was also noted otoscopy of the left ear revealed a retracted drum with possible fluid in the middle ear.[31]On 12 March 2025, it was confirmed the Claimant would be offered a tonsillectomy.[32]On 13 June 2025, the Claimant was seen in the ENT department. It was noted she had come in due to persisting left sided aural fullness and pressure sensation with intermittent otalgia. It was recommended she should have surgery to have a left sided eustachian tube balloon, and her mucas retention cyst removed.[33]On 21 July 2025, the Claimant was assessed to see if she has Autism Spectrum Disorder. In the report it was noted the Claimant had no concerns about her mood but said she suffered with anxiety. It was noted her affect appeared constricted, with limited emotional expressiveness. It was noted she displayed good insight into her condition and had actively sought professional help indicating a clear understanding of her emotional state.[34]On 29 July 2025, the Nurse Practitioner at the Claimant’s GP surgery wrote a letter stating: “She suffers from chronic urticarial and has needed multiple types of treatment including biological medication/ previous infusions to settle in but she still has frequent flares. Often the flare and treatment can lead her feeling severely fatigued. Certainly these 2 conditions and their chronicity meet the disability criteria as defined by the equality act 2010. She has chronic pain and fatigue. She recently had her tonsils out for longstanding recurrent tonsillitis. She also has persistent aural fullness and recurrent ear infections and they have planned a second surgery which will need septoplasty to help with her chronic sinus issues. All of these issues have been occurring over the last 12 months and as stated above some of the for much longer. Her impairments are recurring and fluctuation. In regards to her sinus problems these well may be resolved but her other issues mentioned are likely to last and may impact her moving forward. She may need time of work or reasonable adjustments in times of flares. If she were to never have treatment for any of this conditions she would remain in chronic pain, be severely anaemic/ issues with syncope, chronic urticaria the list is exhaustive. It would have absolutely impacted on her mental health if she never had treatment and its remarkable that she does continue to function given the impact her conditions have had on her.”[35]In the Claimant’s Disability Impact statement, she described that she began having difficulties with her ear in 2023 after she had a cold which resulted in a retention of fluid in her left ear. She noted, “This caused pain and discomfort. I was eventually sent for a CT scan on 29th June 2024 which revealed structural abnormalities in my ears and sinuses. My eustachian tubes are abnormally narrow (meaning that my ears do not drain properly) I have a cyst in my sinuses which are chronically inflamed, and I have a deviated septum. These can only be fixed via surgery.”[36]The Claimant described her symptoms as being a constant dull, stabbing pain in her ear and a feeling of heaviness on that side of her head. Her ability to hear out of that ear is limited due to the fluid build up behind her eardrum. She experiences disorientation due to the fluid in her ear, which exacerbates her dyspraxia symptoms. She described being highly sensitive to loud and high pitched noises, which cause pain in her left ear.[37]In terms of the effect of these symptoms on the Claimant’s daily activities, she wrote that her left ear is painful all the time, which adds to her daily pain levels. She cannot wear headphones on the left side, nor can she put an earbud in that ear, as this intensifies the pain. This causes other issues, as the reason she was issued with double ear headphones was to reduce the impact of her dyslexia on her work. The reduction in her hearing makes it more difficult for her to hear what is going on around her in general but also makes it harder for her to compensate for her dyslexia and ADHD when attempting to understand verbal information. The Claimant says her spatial awareness is impacted by the disorientation, exacerbating her dyspraxia symptoms and making it harder not to bump into things. She says that high pitched or loud noises cause her more pain, and when she is not in an environment that she can control, such as her home, she is unable to predict when these might occur, and this increases her anxiety and stress levels.[38]The Claimant set out in her Disability Impact statement that the issue had been ongoing for more than 12 months, and exists due to structural abnormalities in her ears, sinuses, and nose. She said if she does not have the surgery, which is planned for July 2026, the issues would persist indefinitely. She noted the condition causes symptoms which have a substantial effect on her day-to-day activities and exacerbate the symptoms of her other disabilities.[39]During cross examination, regarding her ear, it was suggested the documents in the bundle indicate her ear pain was intermittent, rather than constant. The Claimant said she had a constant feeling of fluid in her ear, her ear feeling full, and constantly low level pain, but she intermittently had severe pain. The episodes of severe pain could last for several weeks. The Claimant accepted the issue started in 2023, and she first saw ENT in May 2023. The Claimant said the evidence showed it was clearly an ongoing issue because she was re-referred by her GP a number of times to the ENT. She suggested that she would not have been referred on the NHS if it was a low level but manageable amount of pain. She also said that there was a delay between when she was referred and when she was seen in ENT because it was the NHS and so it is not possible to be seen straight away. She said the pain would be worse when she had a cold, virus, or was suffering with hayfever.[40]It was suggested to the Claimant that she was overstating it when she said the pain was unbearable at times. The Claimant denied this. She said the pain was unbearable at times, and it was made worse by the fact that she could not take pain medication, due to her other disabilities which caused swelling in her lips and face in response to certain medication. She also noted she would not be having an operation in July if the pain was bearable.[41]In terms of anxiety, the Claimant wrote that she was diagnosed with anxiety in 2017. It is also a noted symptom of ADHD and ASD, and it has been repeatedly noted by various clinicians throughout her medical evidence.[42]The Claimant described her symptoms as being a constant baseline level of psychological distress, which increases any time she enters an environment she cannot control, namely every time she leaves her house. This also results in muscle tension and difficulty resting. The Claimant said she must keep a constant eye on this to prevent it from increasing to an overwhelming level.[43]The Claimant said she also regularly experiences episodes of overwhelming psychological distress (“OPD”), characterised by racing thoughts, rapid heartbeat, and shaking. She said it was very difficult to calm herself down during these periods. Triggers include leaving her house, social interactions, particularly at work, and changes in routine, which she finds difficult for reasons related to her ASD. The Claimant says the number of episodes has increased since she was a victim of crime on 27 August 2023 and 12 April 2024. She wrote “Those experiences poured gasoline on the anxiety fire and created new triggers for me, for example when an Uber or taxi driver takes an unexpected route when taking me to and from work.”[44]The Claimant said she also experiences panic attacks on a semi-regular basis. These usually occur in conjunction with episodes of OPD when she has not been able to calm down and bring her anxiety levels back down to her usual level. She says a panic attack is more likely to occur when she is overwhelmed and is dealing with high pain levels. She describes that she is unable to focus on anything apart from how she is feeling in that moment and it becomes very overwhelming. The Claimant describes that the episodes are exhausting and are likely to exacerbate the symptoms of her other health conditions.[45]In terms of the effect on her day-to-day activities, the Claimant said she has extreme difficulty leaving her house, as it is the only environment she can control. She said she often wakes up with a pit in her stomach because she cannot predict with precision what will happen or how people will treat her on any given day. She said this causes her to have great difficulty going to the shops or running errands, and very often her anxiety stops her from doing so. She said she has to “push through” this as much as possible to go to work, as otherwise she would not have an income, but it means that she has to deal with a higher baseline of psychological distress whenever she attends work.[46]The Claimant also noted, “I feel the need to constantly self-surveil and suppress the behaviours and speech patterns that arise out of my neurodivergence (ADHD, ASD, Dyslexia, Dyspraxia), as I have been characterised as less intelligent because of them by my colleagues. I’m also aware that these can make people uncomfortable. I feel the need to constantly review my interactions with others to make sure I haven’t made a “mistake”, and any “mistakes” I do identify are very distressing to me.”[47]The Claimant wrote that these symptoms have been ongoing for most of her life, as acknowledged by medical professionals in the various letters regarding her health.[48]During the cross examination of the Claimant, regarding her anxiety, it was suggested that it was recorded in several documents in the bundle for the preliminary hearing that she found the access to work provision of taxis to and from work was helpful, which was not consistent with what she said about how anxious it made her. The Claimant explained taking taxis does make her feel very anxious because of what happened with the Uber driver when he turned off the App and drove off the route. She noted she was a lone female often travelling at unsocial hours. She pointed out that if she were to take public transport it is 1 hr and 30 minutes each way and with her other conditions it is hard to sit on the bus for that length of time. She pointed out the taxis assist with her physical health as she is exposed to less viruses, but it was not good for her mental health because it made her more anxious.[49]It was also suggested to the Claimant that the anxiety she was experiencing in July 2024 was a reaction to her situation at work, namely the requirement to attend a dismissal hearing. The Claimant denied this and said she suffered with anxiety all the time, but it was heightened by stressful situations. She said she dealt with the symptoms as best she could but the symptoms frequently fluctuated. She noted when she was particularly anxious it would affect her sleep, which would worsen her other conditions. The Claimant said as with other medication, she was very reluctant to take new medications given the range of medications which sparked a reaction similar to an allergic reaction.
The relevant law
[50]Under section 6(1) of the Equality Act 2010 a person has a disability if that person has ‘a physical or mental impairment’ which has a ‘substantial and long-term adverse effect on [the person’s] ability to carry out normal day-today activities’. The burden of proof is on a claimant to show that he or she satisfies this definition.[51]In Goodwin v Patent Office [1999] I.C.R. 302 the EAT stated that tribunals should look at the evidence by reference to four different questions: 1) Did the claimant have a mental and/or physical impairment? 2) Did the impairment affect the claimant’s ability to carry out normal day-to-day activities? 3) Was the adverse condition substantial? 4) Was the adverse condition long term?[52]In Wigginton v Cowie and ors t/a Baxter International (A Partnership) EAT 0322/09 the EAT confirmed that these four questions should be posed sequentially and not together, although in Sullivan v Bury Street Capital Ltd [2022] IRLR 159, the Court of Appeal stressed that it does not amount to an error of law for a tribunal to omit to set out in its judgment the four conditions identified in Goodwin and deal with each methodically in turn, so long as, in substance, all relevant matters are addressed when determining whether the particular claimant was disabled within the terms of section 6(1).[53]In Veitch v Red Sky Group Ltd [2010] NICA 39 the court made it clear that there is no onus on the claimant to adduce medical evidence to establish each of the four conditions comprising the test of ‘disability’ as set out by the EAT in Goodwin v Patent Office: “The presence or absence of medical evidence may be a matter of relevance to be taken into consideration in deciding what weight to put on evidence of claimed difficulties causing alleged disability but its absence does not of itself preclude a finding of fact that a person suffers from an impairment that has a substantial long-term adverse effect.”[54]Appendix 1 to the EHRC Employment Code states 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” — para 7.[55]Under paragraph 2 of Schedule 1 to the Equality Act 2010, the effect of an impairment is long-term if:(a) it has lasted for at least 12 months, or(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. 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. Likely to recur means that ‘it could well happen’ (para C3 of the Government’s “Guidance on matters to be taken into account in determining questions relating to the definition of disability” (“The Guidance”).[56]The Guidance states that the effects are to be treated as long term if they are likely to recur beyond 12 months after the first occurrence (see para C6). This is to ensure that the total period during which a person has an impairment with recurring effects is at least 12 months.[57]In circumstances in which medical evidence does not support the assertion that a condition will recur, a claimant may not have sufficient evidential basis to prove disability: Sussex Partnership NHS Foundation Trust v Norris [2013] CLY 963.[58]In the case of Cruickshank v VAW Motorcast Ltd [2002] ICR 729, the EAT confirmed that the time at which to assess the disability, and whether there is an impairment that has a substantial adverse effect on normal day-to-day activities, is the date of the alleged discriminatory act or acts. This is also the material time when determining whether the impairment has a long-term effect - Tesco Stores Limited v Tennant (UKEAT/0167/19/OO).[59]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 a tribunal is not entitled to have regard to events occurring subsequently.[60]The government’s ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011) also stresses that anything that occurs after the date of the discriminatory act will not be relevant (para C4). It also states that account should be taken of the typical length of such an effect on an individual. 61. ‘Substantial’ is defined in section 212(1) of the Equality Act as meaning “more than minor or trivial”. In Goodwin v Patent Office, the EAT held: ‘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.”[62]The court also noted that “disabled persons are likely, habitually, to ‘play down’ the effect that their disabilities have on their daily lives”, and that “Substantial’ might mean ‘very large’ or might mean ‘more than minor or trivial’.[63]Appendix 1 to the Equality and Human Rights Commission (EHRC) Code of Practice on Employment (2011) states 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.[64]In Paterson v Commissioner of Police of the Metropolis [2007] ICR 1522, EAT, Elias J commented, at paragraph 27, that to be ‘substantial’, “the effect must fall outwith the normal range of effects that one might expect from a cross section of the population”. Elias J further noted that “when assessing the effect, the comparison is not with the population at large… what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired”.[65]Appendix 1 to the Equality and Human Rights Commission’s Code of Practice on Employment (‘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, and gives examples such as walking, driving, typing and forming social relationships. The Guidance states that it is not possible to provide an exhaustive list of dayto-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.[66]In determining whether a person’s impairment has a substantial effect on that person’s ability to carry out normal day-to-day activities, the effects of measures such as medical treatment or corrective aids on the impairment should be ignored. If an impairment would be likely to have a substantial adverse effect but for the fact that measures are being taken to treat or correct it, it is to be treated as having that effect — paragraph 5(1), Schedule 1, Equality Act 2010.[67]In Royal Bank of Scotland plc v Morris EAT 0436/10 an employment tribunal upheld the claimant’s disability discrimination claim, but the EAT held that there was simply insufficient evidence before the tribunal for it to draw any conclusions on essential elements of the definition of disability, including the duration or likely duration of the claimant’s impairment. There was no evidence of serious continuing symptoms. The EAT considered that no safe inferences could be drawn from the fact that the claimant was told that he should continue with the medication for six months, as this ‘might only have been precautionary’. The EAT observed that ‘while in the case of other kinds of impairment the contemporary medical notes or reports may, even if they are not explicitly addressed to the issues arising under the [Disability Discrimination Act 1995], give a tribunal a sufficient evidential basis to make common-sense findings, in cases where the disability alleged takes the form of depression or a cognate mental impairment, the issues will often be too subtle to allow it to make proper findings without expert assistance’.[68]In Mefful v Merton and Lambeth Citizens Advice Bureau UKEAT/0290/14 the EAT held: “What the ET needed to do (per Ginn) was to add up the component parts and see whether the sum amounted to more than the individual parts taken separately: it needed to form a view as to the deduced effect of two conditions.”[69]In J v DLA Piper UK LLP [2010] ICR 1052, Underhill J commented at paragraph 42: “The first point concerns the legitimacy in principle of the kind of distinction made by the Tribunal, as summarised at para. 33 (3) above, between two states of affairs which can produce broadly similar symptoms: those symptoms can be described in various ways, but we will be sufficiently understood if we refer to them as symptoms of low mood and anxiety. The first state of affairs is a mental illness – or, if you prefer, a mental condition – which is conveniently referred to as "clinical depression" and is unquestionably an impairment within the meaning of the Act. 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".[5] We dare say that the value or validity of that distinction could be questioned at the level of deep theory; and even if it is accepted in principle the borderline between the two states of affairs is bound often to be very blurred in practice. But we are equally clear that it reflects a distinction which is routinely made by clinicians – it is implicit or explicit in the evidence of each of Dr Brener, Dr MacLeod and Dr Gill in this case – and which should in principle be recognised for the purposes of the Act. We accept that it may be a difficult distinction to apply in a particular case; and the difficulty can be exacerbated by the looseness with which some medical professionals, and most laypeople, use such terms as "depression" ("clinical" or otherwise), "anxiety" and "stress". Fortunately, however, we would not expect those difficulties often to cause a real problem in the context of a claim under the Act. This is because of the longterm effect requirement. If, as we recommend at para. 40 (2) above, a tribunal starts by considering the adverse effect issue and finds that the claimant's ability to carry out normal day-to-day activities has been substantially impaired by symptoms characteristic of depression for twelve months or more, it would in most cases be likely to conclude that he or she was indeed suffering "clinical depression" rather than simply a reaction to adverse circumstances: it is a common-sense observation that such reactions are not normally long-lived.”[70]Similarly, in Herry v Dudley Metropolitan Council [2017] ICR 610, Richardson J commented at paragraph 71: “there can be cases where a reaction to circumstances becomes entrenched without amounting to a mental impairment; a long period off work is not conclusive of the existence of a mental impairment.” The Tribunal’s conclusions Anxiety[71]The Tribunal found that the Claimant was disabled, within the meaning set out in section 6 of the Equality Act, from June 2019, and she remained disabled by virtue of having anxiety throughout the whole of the relevant period. Did the Claimant have a mental impairment?[72]The Claimant was diagnosed with Generalised Anxiety Disorder and a panic disorder in June 2018. She was suffering with panic attacks at that time, and felt very nervous, anxious or on edge every day. In May 2019, 11 months later, the Nurse Practitioner at the Claimant’s GP surgery noted the Claimant was having panic attacks and anxiety. In February 2023, the Nurse Practitioner wrote a letter in which she referred to the Claimant having a history of anxiety following a traumatic period in her life. In October 2023, the Claimant had the experience described above with the Uber taxi driver, and reported that this caused a worsening in her anxiety symptoms. In April 2024, the Claimant was again a victim of crime. In May 2024, the Claimant reported to OH that she was experiencing a decline in her mental health. In August 2024, the Claimant reported to a psychiatrist, who she saw for an ADHD diagnosis, that her mood was ok but fluctuated. She described anxiety symptoms relating to overthinking, being unable to sleep, and anxiety related palpitations. The Tribunal therefore concluded that the Claimant had a mental impairment.[73]The Claimant has also been diagnosed with ADHD and Autism Spectrum Disorder, and the Claimant has been informed that anxiety is often a symptom of these disorders. Did the impairment affect the claimant’s ability to carry out normal day-today activities? Was it substantial?[74]The Tribunal found that the Claimant’s condition did have a more than minor or trivial effect on the Claimant’s ability to carry out day to day activities. The Tribunal accepted the Claimant experienced panic attacks in 2018 and 2019, as referred to in her medical records, and continued to experience them, throughout the relevant period and to the date of the preliminary hearing, on a semi-regular basis, as set out in her disability impact statement. The Tribunal also accepted the Claimant had episodes of overwhelming psychological distress (“OPD”), in which she experienced racing thoughts, rapid heartbeat, and shaking. The Tribunal accepted that when experiencing a panic attack or an episode of OPD the Claimant was unable to carry out any normal day-to-day activities.[75]The Tribunal also accepted the Claimant’s evidence that she had a base level of anxiety which had persisted since 2018 and worsened after August 2023 and April 2024, when she was a victim of crime. The Tribunal accepted that the Claimant often had racing thoughts, overthinking, shaking, and anxiety related palpitations. As reported in August 2024 to a psychiatrist, who she saw for an ADHD diagnosis, she described these symptoms as making it difficult for her to sleep. The Tribunal accepted her evidence that she would have difficulty leaving the house whether to run errands, go to the shops or attend work. She was able to do things, but it was substantially more difficult for the Claimant than if she had not had the impairment. The Tribunal concluded that sleeping and leaving the house are normal day-today activities and found that the Claimant’s anxiety had a substantial adverse effect on her ability to do these day-to-day activities from 2018 onwards. The Tribunal found the Claimant’s symptoms fluctuated in their severity but accepted the Claimant’s oral evidence to the Tribunal that her anxiety levels never were consistently reduced such that they no longer had a substantial adverse effect on her ability to carry out these day-to-day activities.[76]In reaching this conclusion, the Tribunal also took into account the impact that all of the Claimant’s other conditions had on her anxiety levels. Due to a combination of her other conditions, the Claimant would frequently have what was similar to an allergic reaction, which caused swelling to her lips, face and eyes, for which she often went to hospital. In addition, the Claimant would frequently become unwell with different types of ear, nose and throat viruses or infections, and would suffer episodes of pain and stomach discomfort. The Tribunal agreed with the comment the Nurse Practitioner at the Claimant’s GP surgery wrote in a letter on 29 July 2025, that her other conditions had “absolutely impacted on her mental health if she never had treatment and its remarkable that she does continue to function given the impact her conditions have had on her.” The Tribunal considered it was highly likely that the Claimant almost constantly suffered with a high level of anxiety caused by the range of other health issues that she has to deal with. Was the substantial adverse effect long term?[77]The Tribunal accepted that the Claimant has suffered from the mental impairment of anxiety since 2018 when she was first diagnosed, and since that time, it has had a substantial adverse effect on her ability to carry out day to day activities. This is a period of time which far exceeds the requirement that the substantial adverse effect last for longer than 12 months. The Claimant therefore met the definition of disabled under section 6, in respect of her anxiety, from June 2019, as the substantial adverse effect had lasted for a period of 12 months by that time. As noted above, the Claimant’s base line anxiety persisted throughout this whole period. In addition, to the base line of persistent anxiety, the Claimant also had episodes of panic attacks and OPD. These fluctuated but were recurrent.[78]In addition, the Claimant has had periods when her anxiety has increased in response to life events, including being a victim of crime in October 2023 and April 2024, and when she was attending a potential dismissal hearing at work. However, the Tribunal did not find that the Claimant’s case was like the case of Herry v Dudley Metropolitan Council. The Claimant was not simply someone who was having an adverse reaction to life events. The Claimant had previously been diagnosed in June 2018 with Generalised Anxiety Disorder and a panic disorder, and her symptoms had never dissipated to such an extent that she was no longer disabled by virtue of suffering with anxiety. If someone has an underlying anxiety condition, it is to be expected that when they experience difficult events (such as the incident with the taxi driver or potentially facing dismissal) their anxiety levels will rise.[79]The Claimant’s circumstances however cannot be characterised as just an adverse reaction to life events. She was diagnosed with a panic disorder and reported having panic attacks in taxis in October 2023 to Occupational Health. She gave evidence to the Tribunal that she still experiences panic attacks, and episodes of OPD, which was accepted. This is a far cry from someone who becomes entrenched due to a work dispute and is signed off work on long term sick leave.[80]The Tribunal concluded the Claimant was disabled within the meaning of section 6 of the Equality Act 2010 by virtue of suffering with anxiety from June 2019 onwards. Persistent fluid in her ear/an aural impairment Did the Claimant have a physical impairment?[81]The Tribunal accepted from the evidence presented by the Claimant, including letters from the ENT department that she has an eustachian tube dysfunction, which would cause frequent ear, nose and throat infections, and a persistent feeling of having fluid in her ear. The Tribunal found the Claimant had a physical impairment. Did the impairment affect the claimant’s ability to carry out normal day-today activities? Was it substantial?[82]From December 2022, the Claimant began to experience ear pain, ear infections and fluid weeping from the ear. She reported in May 2023 to OH that as the issue had been on-going since December 2022, she had been referred to see an ENT specialist. She was unable to take painkillers as she was likely to have an adverse reaction to the medicine. She saw the ENT specialists in May and July 2023 and reported the situation was much the same in terms of ear pain and the feeling of her ear being intermittently blocked. In May 2024, the Claimant went off work due to a worsening of her ear symptoms requiring treatment through the out of hours GP service. Her symptoms were reported as being pain, fullness and reduced hearing in the left ear.[83]By June 2024, the Claimant had been referred back to the ENT specialists. She reported having had three weeks of ear pain. She was assessed as having a bilateral retracted ear drum with fluid in the middle ear. In June 2024, she saw OH and described it as an on-going issue which had flared up again recently. She described pain in her ear, a feeling of fullness and reduced hearing. On 17 July 2024, the Claimant reported to OH that she was still having on-going symptoms in her left ear. From 24 July 2024 to 29 August 2024, the Claimant was off work again due to a flare up in the symptoms in her ear. In September 2024, following a CT scan, the Claimant was referred to a consultant rhinologist. She described the symptoms as being severe ear ache, dizziness, fever, and feeling generally unwell. She described that she could not take the prescribed pain killers due to the response her body has when she takes pain killers. She described the pain as “unbearable” at times.[84]On 8 February 2025, the Claimant was seen in ENT due to chronic tonsilitis. It had started in October 2024, and she had six episodes since then. On 21 February 2025, the Claimant was seen in the rhinology clinic. She was found to have eustachian tube dysfunction. It was noted she had a longstanding history of aural fullness and a pressure sensation in her left ear which is occasionally painful. It also noted she had a history of recurrent ear infections in the left ear. The CT scan showed a cyst in her right sinus and some thickening in the left sphenoid sinus. It was also noted otoscopy of the left ear revealed a retracted drum with possible fluid in the middle ear.[85]In her Impact Statement, the Claimant described her symptoms as being a constant dull, stabbing pain in her ear and a feeling of heaviness on that side of her head. Her ability to hear out of that ear is limited due to the fluid build up behind her eardrum. She experiences disorientation due to the fluid in her ear, which exacerbates her dyspraxia symptoms. She describes being highly sensitive to loud and high pitched noises, which cause pain in her left ear.[86]The Tribunal accepted the Claimant’s evidence that her pain was constant, would worsen significantly when she had an infection or virus, and was at times unbearable. The Tribunal accepted the Claimant’s evidence that she would not be having surgery in July 2026 were the pain levels not as severe as she described.[87]The Claimant explained she had a constant sense of fullness in her ear, a constant low-level pain, and reduced ability to hear. She could not wear headphones at work as that would intensify the pain. The Tribunal accepted that this had a substantial adverse impact on her ability to carry out day to day activities. The reduction in her hearing makes it more difficult for her to hear what is going on around her in general but also makes it harder for her to compensate for her dyslexia and ADHD when attempting to understand verbal information. The Tribunal concluded receiving and understanding verbal information was a day-to-day activity, and that the Claimant’s impairment had a substantial adverse effect on the Claimant’s ability to do this. The Tribunal accepted the Claimant’s spatial awareness was impacted by the disorientation caused by the pain in her ear, which exacerbated her dyspraxia symptoms and made it harder not to bump into things.[88]When she was having a flare up of her symptoms, the pain would become much more intense. She would have ear infections, which she was unable to take normal pain medication for. She would need time off work and experience the range of symptoms typical of an ear infection including a temperature, pain in the ear, and weeping fluid. The Tribunal accepted that when the Claimant was having a flare up or suffering with an infection this had a substantial adverse impact on her ability to carry out day to day activities, as she was not able to attend work. Was the substantial adverse effect long term?[89]The issues with the Claimant’s left ear first arose in December 2022. The problems persisted for well over a year. The condition fluctuated in that it was worse when she had an infection in her ear, but the Claimant had a constant level of pain and feeling of fullness, which had an adverse impact on her ability to carry out day to day activities. In addition, it was clear by the time she was referred to ENT that she was suffering recurrent ear infections, and therefore it was highly likely that she would suffer further infections.[90]The Tribunal concluded that by December 2023, once the Claimant had experienced on-going symptoms (which fluctuated but continued) for 12 months, the Claimant met the definition of disabled within the meaning of section 6. The symptoms have persisted to the date of the hearing, as demonstrated by the frequent periods of time off work which the Claimant has needed due to her ear symptoms, and the numerous appointments with the ENT specialist to seek a solution to the on-going problems she has been having.[91]The Tribunal concluded the Claimant was disabled within the meaning of section 6 of the Equality Act 2010 by virtue of suffering with Persistent fluid in her ear/an aural impairment from December 2023 onwards. Approved by: