Employment Judge Milner-MooreIn person for claimantMr Ohringer (instructed by Counsel) for respondentDate 5 April 2024
JUDGMENT
[1]The claimant was not a disabled person within the meaning of section 6 of the Equality Act 2010.[2]The claim of disability discrimination is dismissed.[3]The claimant’s application for leave to amend is refused.
REASONS
[1]Following a case management hearing on 1 December 2020, this case was listed for a preliminary hearing to consider the following issues:a. To determine the claimant’s application to amend her claim to add an allegation that she was discriminated against on grounds of menopause;b. To determine whether the claimant was a disabled person within the meaning of section 6 of the Equality Act 2020 by reason of depression, anxiety and (subject to a above) menopause; andc. To determine the respondent’s applications for orders for strike out or for a deposit.
The hearing
[2]The hearing took place remotely by video using the CVP platform. A faceto-face hearing was not held because it was not practicable given the COVID 19 pandemic, and all issues could be fairly and effectively determined in a remote hearing. The parties were able to use the technology effectively. In determining the issues identified I had access to an agreed bundle of documents, a written application to amend by the claimant, an (RJR) Page 1 of 10 expert’s report produced by the claimant, a skeleton argument produced by the respondent’s counsel and a bundle of authorities. The respondent did not wish to dispute the accuracy of any of the evidence produced by the claimant in relation to disability and so the claimant was not required to give oral evidence in support of her claim. Background and Procedural history[3]The claimant was employed by the respondent as a Senior Technologist between 9 October 2017 and 19 September 2019, when she was dismissed by the respondent. On 13 January 2020, the claimant filed an ET claim alleging that she had been unfairly dismissed by the respondent and subject to disability discrimination. The narrative attached to her claim was lengthy and detailed (7or so pages of single-spaced text with accompanying footnotes linking to relevant supporting evidence). Her claim of unfair dismissal was dismissed on the grounds that she did not have the requisite continuity of service. He claim of disability discrimination proceeded. The claim was that the respondent had been harassed directly discriminated against on grounds of disability and that the respondent had failed to make reasonable adjustments. The claim form stated “To summarise, the reason I am making this claim is that the respondent (Lauren Richards) placed unreasonable workload and responsibilities upon me from January 2019, to the detriment of my mental health. This caused me to suffer from stress and anxiety, both of which I had never suffered from before leading to me needing to take a leave of absence as instructed by a health professional. Upon my return to work, the respondent did not make any reasonable adjustments in order to improve these health issues. Instead they opted to dismiss me……” The claim made no reference to menopause as a disability nor was menopause identified as a matter which had given rise to any adverse treatment by the respondent. The respondent denied that the claimant was a disabled person within the meaning of section 6 of the Equality Act 2010, asserted that the claimant was dismissed for reasons of capability and denied all the allegations of disability discrimination.[4]The case was listed for a case management hearing to take place on 1 December 2020. On 27 June 2020 the claimant was ordered to produce “a report from a qualified medical practitioner” to address whether the claimant was a disabled person within the meaning of section 6 of the Equality Act 2010. The Order attached an instruction request addressing the elements of the test for disability set out in section 6. The claimant was also asked to provide an impact statement. It was ordered that both the report and impact statement be produced by 30 September 2020. In August 2020, the claimant produced some letters from the gynaecology clinics where she had been seen which confirmed a diagnosis of premature menopause and asked whether these letters, with an impact statements, would suffice. On 16 September 2020, the claimant produced an impact statement identifying four impairments premature menopause, anxiety, depression and posttraumatic stress disorder. The claimant did not, however, make an application to amend her claim form to include complaints that she had been discriminated again by reason of or in connection with menopause or PTSD. The respondent replied to indicate that it did not accept that the claimant (RJR) Page 2 of 10 was disabled and noting that menopause was not the disability identified in the claim form. It indicated that it wished the case to be listed for a hearing to consider a strike out.[5]On 22 November 2020 the claimant submitted written representations for consideration ahead of the case management hearing. She suggested that the respondent had failed to make reasonable adjustments in relation to menopause but did not explain what disadvantage she considered she experienced as a result of that condition. She also made an allegation of harassment related to menopause (concerning comments made regarding body odour during a meeting) and complained of a comment made to the effect that she was too young to go through menopause (which she also considered to be age discrimination) and she applied to have this included by way of amendment. She provided excepts from her GP records. On 1 December 2020 the case was listed for a one-hour case management hearing and I did not consider that there was sufficient time to deal with the applications being made for leave to amend (by the claimant) to determine whether the claimant was disabled and for strike out/deposit (by the respondent). For that reason, I undertook some case management, and I fixed a further open preliminary hearing to take place on 9 February 2020. I directed that by 8 January 2021 the claimant must make a written application to amend setting out the specifics of her complaint of disability discrimination referable to menopause. In particular, the claimant was asked to identify the type of disability discrimination (whether direct discrimination, indirect, failure to make reasonable adjustments etc), the facts relied on to support the claim and an explanation of why these matters had not been included when the claim was originally brought. Evidence relating to disability[6]The claimant produced excerpts from her GP records and the medical history relevant to anxiety/depression in those notes is as follows:a. During May and June 2011, after being diagnosed with premature ovarian failure the claimant underwent counselling. She responded well to counselling and reported feeling much improved.b. On 17 July 2019, the claimant attended the GP reporting work related anxiety. She was prescribed beta blockers and Propranolol. She was seen again on the 22 July and at that point was signed off sick for a period. The claimant returned to work on 5 August 2019. She was dismissed on 19 September 2019.c. The next entry in the medical records appears on 21 February 2020. The claimant was reporting “anxiety and fear” and explained that she “was in a job where her employer used to shout a lot and she was very anxious there. ….Now she is in another job and feels happy there. But occasionally she crosses roads with her previous employer’s cars etc and then she starts to panic and get anxious and she does not know how to deal with that” She was advised on selfhelp measures such as breathing exercises and the possibility of a self-referral for CBT.d. On 9 July 2020 the claimant contacted her GP again and was reporting anxiety and panic attacks that counselling and breathing (RJR) Page 3 of 10 exercises had not helped. She was prescribed beta blockers and propranolol. She completed depression and anxiety questionnaires a few days later. The results indicated moderately severe anxiety and severe depression. On 28 July there was a further telephone consultation during which it was suggested that the claimant might be depressed. The claimant volunteered that she had completed a PTSD questionnaire and that she though that she might be suffering from PTSD.[7]There is evidence in the bundle in the documents created by the respondent relating to the claimant’s employment which is relevant to the claimant’s condition in the run up to her dismissal.a. The claimant is recorded as having “broken down” in a meeting at the beginning of June, with the result that her workload was reduced and managedb. The claimant reported feeling overworked in mid-July shortly before she was signed off.[8]The claimant’s impact statement was produced on 16 September 2020.a. She set out her medical history related to anxiety, she said that she had begun counselling in May 2020 and that before this she had difficulty undertaking activities such as leaving the house, speaking up in meetings or in social settings and that she experienced difficulty talking about her career history. She reported anxiety at the prospect of encountering the respondent’s staff in meetings or seeing them driving in her neighbourhood. She reported difficulty concentrating when reading and difficulty sleeping. She considered that her anxiety had begun in late 2018/early 2019.b. She also set out her medical history referable to depression, she said that she had begun counselling in May and that before this she had difficulty undertaking activities. These included matters such as being happy, sleeping normally, socialising, and eating healthily, completing housework, engaging in self-care due to low motivation and in engaging in hobbies due to lack of interest /concentration. She considered it likely that she had suffered from depressions since July 2019.[9]On 4 January 2021, the claimant was seen by a Psychiatrist who produced. A report dated 14 January 2021. The Psychiatrist wrote the report based on the claimant’s self-reporting and without having had sight of her GP records (although the claimant had these, so it is not clear why they were not made available). The Psychiatrist’s assessment was that the claimant met the diagnostic criteria for “mixed Anxiety and Depressive disorder”. He indicated that the trigger for the condition was the claimant’s work situation with the respondent. He recorded that the claimant had no pre-existing problems with her mental health. He considered that the claimant was disabled and that the condition was likely to have begun in May/June 2019. He considered that the condition has a substantial effect on the claimant’s ability to carry out day to day activities in a number of respects. Including reduced frequency of going out and increased vigilance when doing so, (RJR) Page 4 of 10 reduced concentration, decreased creativity, sleeping less well, less housework due to reduced energy levels and motivation and decreased assertiveness in conversations at work. His report did not address the question of whether, at the relevant time, the claimant’s condition was likely to be long term.
Relevant law
[10]The Presidential guidance on Case management provides guidance to Tribunals when considering applications to amend “4. In deciding whether to grant an application to amend, the Tribunal must carry out a careful balancing exercise of all of the relevant factors, having regard to the interests of justice and the relative hardship that will be caused to the parties by granting or refusing the amendment. 5. Relevant factors would include:5.1 The amendment to be made. Applications can vary from the correction of clerical and typing errors to the addition of facts, the addition or substitution of labels for facts already described, and the making of entirely new factual allegations which change the basis of the existing claim. The Tribunal must decide whether the amendment applied for is a minor matter or a substantial alteration, describing a new complaint.5.2 Time limits. If a new complaint or cause of action is intended by way of amendment, the Tribunal must consider whether that complaint is out of time and, if so, whether the time limit should be extended. Once the amendment has been allowed, and time taken into account, then that matter has been decided and can only be challenged on appeal. An application for leave to amend when there is a time issue should be dealt with at a preliminary hearing to address a preliminary issue. This allows all parties to attend, to make representations and possibly even to give evidence.5.3 The timing and manner of the application. An application can be made at any time, as can an amendment even after Judgment has been promulgated. Allowing an application is an exercise of a judicial discretion. A party will need to show why the application was not made earlier and why it is being made at that time. An example which may justify a late application is the discovery of new facts or information from disclosure of documents.’[11]These factors are also set out in the Selkent case. However, they do not represent an exhaustive list of factors that will be of relevance in considering an application to amend.[12]The burden of proving disability is on the claimant. The definition of disability appears at section 6 and Schedule 1 of the Equality Act 2010 6 Disability(1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities. (RJR) Page 5 of 10 Schedule 1 2 Long-term effects (1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) it is likely to last for the rest of the life of the person affected.(2) If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.[13]In the context of the statutory definition of disability, a substantial adverse effect is one that is “more than minor or trivial” and “likely” means that something “could well happen”. The Equality Act 2010 Guidance on matters to be taken into account in determining questions relating to the definition of disability provides helpful guidance on the approach to be adopted when applying the statutory definition. In particular, the appendices to the Guidance provide a list of examples of the types of factors which might indicate a substantial adverse effect on normal day to day activities. Section C of the guidance deals with the assessment of whether an impairment is long term. C4 In assessing the likelihood of an effect lasting for 12 months, account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood. Account should also be taken of both the typical length of such an effect on an individual, and any relevant factors specific to this individual (for example, general state of health or age). C5 The Act states that, if an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur. (In deciding whether a person has had a disability in the past, the question is whether a substantial adverse effect has in fact recurred.) Conditions with effects which recur only sporadically or for short periods can still qualify as impairments for the purposes of the Act, in respect of the meaning of ‘long-term’ Application to amend[14]On 19 December 2020, the claimant submitted a written application to amend. That application did not provide any further detail of how the claimant considered the respondent to have discriminated against her in relation to menopause. The claimant stated that she had not included reference to menopause when filing the ET1 because she had not been sure what to write and had thought that what was required was that she “explain the discrimination I thought was related to my dismissal rather than the discrimination that occurred whilst working for the respondent in total”. (RJR) Page 6 of 10[15]I refused the application to amend on the basis that, having conducted a balancing exercise I did not consider that it would be in the interest of justice to allow the application. I reached that decision for the following reasons:a. When one reads the claim form, the thrust of the complaint is that the respondent should have dealt differently with its concerns regarding the claimant’s performance given the claimant’s anxiety. The nature of the amendment proposed would involve the addition of substantial new issues which would require time and involve costs to address, namely whether the claimant was disabled by reason of menopause and whether she had been subjected to discrimination by reference to that disability. That would involve the addition of new facts, as it did not appear that any of the factual matters set out in the claim form disclosed discrimination referable to menopause.b. I considered the timing and manner of the application. Although the application was made during the preliminary stages of the ET process the claimant had left it 8 months after filing her ET 1 to make any mention of these matters. Despite being given ample opportunity to do so, the claimant had not been able to provide adequate written particulars specifying the nature of the disability discrimination complaint referable to menopause. The only specifics provided by the claimant related to two comments which were alleged to amount to harassment and even in relation to those comments the claimant had failed to set out sufficient detail (for example she had not identified when the incidents took place).c. Any new complaint would be substantially out of time, the claimant having been dismissed in September 2019. Whilst time limits are not determinative, the fact that the additional claims are substantially out of time is a relevant factor. I did not consider that it would be just and equitable to extend time limits.d. The claimant has not shown any good reason why, if she really believed herself to have been subjected to discrimination on grounds of menopause, she failed to include this in her claim. Although the claimant said that she thought that the claim form should focus on the discrimination related to dismissal rather than setting out all the issues she had encountered whilst working for the respondent in total, the claim form was a very lengthy and detailed account of events that had taken place during her employment. It is implausible that, had the claimant really considered that she had been discriminated against on grounds of menopause, that she would not have made mention of this.[16]For the avoidance of doubt, the documents submitted by the claimant also referenced claims relating to PTSD and age discrimination although it was not clear that the claimant was actively advancing an application to amend to add these. For the reasons given above, I did not consider it in the interests of justice to allow an application to amend to add a complaint of disability discrimination referable to PTSD or age discrimination. (RJR) Page 7 of 10 Was the claimant a disabled person by reason of anxiety or depression? Did the claimant have an impairment?[17]I considered that the claimant did have an impairment, namely anxiety. That impairment was first diagnosed in July 2019 but the evidence indicates that it is likely that the impairment began in late May /early June 2019 when the claimant began to suffer from a loss of confidence and reported feeling overwhelmed at work. I do not consider that the claimant had the impairment of depression at the relevant time, depression was not diagnosed by her GP until much later and she did not complain of depression at the relevant time. Did the Claimant’s impairment have a substantial effect on her ability to carry out normal day to day activities.[18]I had regard to the list of “day to day” activities in the appendix to the Guidance. I considered that in the period from late May to mid-September the claimant’s anxiety did have an impact on her ability to carry out the normal day to day activities. In particular, I consider that she experienced persistent general low motivation/loss of interest, difficulty being in environments that she found frightening, difficulty concentrating and difficulty with normal social interactions. The claimant was upset during a meeting in June, by July, she felt unable to come to work at all because she felt nauseous at the thought of going in and was signed off for two weeks. Her symptoms were sufficient that she was prescribed beta blockers and Propranolol. Although she returned to work in August she became upset again on 10 September 2019 before being dismissed with notice on 11 September 2019. I consider that, at this time, the impacts of her impairment (although they may have fluctuated somewhat) were more than trivial and so were substantial.[19]However, after the dismissal, the claimant rapidly obtained new employment (starting in October 2019) and she did not require further support from her GP until February 2020, at which time she reported herself to be happy but to be suffering from discomfort at the thought of bumping into anyone from the respondent. The claimant still reports some difficulty with normal day to day activities (leaving the house, participating in meetings and social conversation). She has other anxieties which are specifically focussed on encountering the respondent or having to explain her career history with the respondent. Was the impairment long term, did it last 12 months or was it likely to last more than 12 months?[20]It is necessary to consider this question by reference to the state of the evidence at the material time, i.e. the date of the allegedly discriminatory acts, and to consider whether, if the impairment had not lasted 12 months, the evidence indicated that it was “likely” that any impairment would last for 12 months or more. The earliest discrimination allegation relates to April 2019, from which time the claimant says the respondent should have made reasonable adjustments, and the last discriminatory act was dismissal on (RJR) Page 8 of 10 11 September 2019. I therefore need to consider the evidence during this period. What actually happened subsequently is not relevant.[21]I did not consider that the evidence established that the claimant’s impairment had lasted 12 months or was likely to do so.a. The claimant’s anxiety had not lasted more than 12 months at the relevant time. The claimant suggested that her impairment had begun in late 2018/early 2019. However, this was not consistent with the medical evidence in GP records and her Psychiatrist report, which suggest that she began suffering from anxiety in late May/early June 2019. As at the date of dismissal her anxiety had lasted around 3 and a half months.b. The evidence did not suggest that the condition was likely to last 12 months applying the test of whether this was something that “could well happen”. There was nothing to suggest that the claimant’s condition at this time was severe, or was for some other reason likely to persist and become long term. The cause of the claimant’s anxiety was centred on her issues with her workplace and the demands of her job and her anxiety had, at the relevant time, lasted for a few months. There was nothing to suggest that her anxiety was likely to persist once she left the respondent and its work environment. The claimant was not someone with a pre-existing history of mental health issues that indicated a particular vulnerability. On the contrary, the only relevant medical history indicated that when the claimant had previously experienced a stressful life event (her premature menopause diagnosis) she had recovered well with a short period of counselling. For that reason I consider that there was nothing to indicate that her condition in 2019 was likely to take a different course or that her anxiety was likely to persist or to become a long term or recurrent condition. c.[25]Paragraph 2(1)(b) of Schedule 1 to the 2010 Act defines long term, so far as material to this case, as “likely to last at least 12 months”. “Likely” in this context 3 ph judgment + cm Nov 2014 wip version means “could well happen”: see Boyle v SCA Packaging Ltd. [2009] UKHL 37, [2009] ICR 1056, per Lord Hope at paragraph 4, and Lord Rodger at paragraph 42, Baroness Hale at paragraphs 70 to 72 (with whom Lord Neuberger agreed at paragraph 81), Lord Brown at paragraph 77.[26]The question, therefore, is whether, as at the time of the alleged discriminatory acts, the effect of an impairment is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts. A tribunal is making an assessment, or prediction, as at the date of the alleged discrimination, as to whether the effect of an impairment was likely to last at least 12 months from that date. The tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did (or did not) last for 12 months. That is what the Court of Appeal decided in McDougall v Richmond Adult Community College: see per Pill LJ (with whom Sedley LJ agreed) at paragraphs 22 to 25 and Rimer LJ at paragraphs 30-35. That case involved the question of whether the effect of an impairment was likely to recur within the meaning of the predecessor to paragraph 2(2) of Schedule 1 to the 2010 Act. The same analysis must, however, apply to the interpretation of the phrase “likely to last at least 12 months” in paragraph 2(1)(b) of the Schedule. I note that that interpretation is consistent with paragraph C4 of the guidance issued by the Secretary of State under section 6(5) of the 2010 Act which states that in assessing the likelihood of an effect lasting for 12 months, “account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood”.10. In Boyle v SCA Packaging Ltd [2009] ICR 1056, the House of Lords unanimously decided that the Northern Irish Court of Appeal had been correct in endorsing that “could well happen” was the right test over the “more probable than not” approach. According to Baroness Hale, the word likely means something that is a real possibility rather than something that is probable or more likely than not.11. As the Court of Appeal made clear in All Answers para.26, what is being assessed is what the prognosis was for the impairment relied on and, in particular, what the prognosis would have been for the effects of that impairment taken from the vantage point of the alleged acts. It is clear that it is the correct vantage point, as Mr Watson pointed out in his reference to McDougall v Richmond Adult Community College (RSKA para.23).12. Mr Watson also refers to guidance of Slade J in Patel v Oldham Metropolitan Council [2010] IRLR 280 (EAT) and emphasized (RSKA para.24) her statement that “It will no doubt be necessary in most if not all cases falling within Schedule 1 para.2(1)(b) that a diagnosis will have to be given in order to obtain a prognosis of the likely duration of the effects of an impairment.”13. Mrs Justice Slade did not go so far as to say that a medical diagnosis or medical evidence of the prognosis would be necessary in all cases and I did not understand that to be argued for on behalf of the respondent. The claimant reminded me of the observations of Gavin Mansfield KC in para.24 of his judgment in the present case when referring to Royal Bank of Scotland v Morris (UKEAT/0436/10) (CSKA para.13) to the effect that there is no rule of law that it is necessary to have medical evidence in any given case and that whether or 4 ph judgment + cm Nov 2014 wip version not a particular effect is likely to persist is a matter of factual assessment for the tribunal.14. The claimant (CSKA paras.17 & 18) relied on two judgments in the litigation of Nissa v Waverly Education Foundation Limited in the EAT (UKEAT/0135/18) and on remittal to the ET (Case No: 1300482/20217) to argue that there should be a focus on whether there was evidence that the adverse effects of the impairments could well remain substantial rather than on the diagnosis, while accepting that considering with hindsight a prognosis which post-dates the relevant period would be an error. She supports this argument with reference to the Guidance on Definition of Disability (2011) para.A7 (CSKA para.12). Her chosen references to other paragraphs in the Guidance refer to situations where one impairment has developed from or is likely to develop from another impairment, where the cumulative effect of related impairments should be considered (in para.C2 the example is depression which developed from anxiety).15. She also points out that, when assessing the likelihood of an effect lasting for 12 months, account should be taken of both the typical length of such an effect on an individual, and any relevant factors specific to that individual (Guidance para.C4). It is the likelihood that the impairment would continue to have a substantial adverse effect if the effects of corrective treatment is disregarded that must be assessed (Guidance para.B12). That is usually referred to as the deduced effect. This means that, when considering the likelihood of an effect continuing in the future from a relevant point in time, evidence of the treatment which would have been administered and its effects should be evaluated and disregarded, where that is available.16. The observations of Mansfield KC that medical evidence is not necessary in every case (para.13 above) should be put in the context of his full discussion of the judgment of Underhill J (as he then was) in RBS v Morris in paras.13 to 19 of the EAT judgment in the present case (pages 70 to 72). In relation to deduced effect, Underhill J said that it was “very unlikely” that a tribunal would be able to make a safe finding without the benefit of medical evidence and “difficult” for the tribunal to be able to assess the likelihood of recurrence or likely severity of the effect of any recurrence without expert evidence. I note also the caution expressed by Underhill J in RBS v Morris para.63 about the real difficulties there are in assessing likely duration, deduced effect and risk of recurrence in cases involving mental impairments. The Parties’ Arguments17. The claimant relies upon a number of first instance decisions as illustrative of the points that she wishes to make (Authorities 5 to 8 in the Authorities Bundle). Before setting out the particular arguments which I have needed to rule on when deciding the issue, I wish to make an observation about the claimant’s reliance on Case No: 2602117/2017 Parnaby, in particularly at CSKA paragraph 52 (quoting para.6.10 of the judgment dated 11 December 2020).18. She relies thereon a comment by the first instance employment judge that the longer the effects of “such mental impairment” continued to be experienced, “assessing the effects without the benefit of any medication or medical intervention) it 5 ph judgment + cm Nov 2014 wip version is, on balance, likely to deteriorate rather than improve”. Whether the learned judge had before them evidence which supported such comments in that case is not a matter for me. However, the generalized comments do not provide evidence in the present case from which I consider inferences can safely be made when considering the prospects that the effects on the claimant of her impairment would continue.19. I set out in summary form the two main arguments that the claimant has advanced and the respondent’s responses to them. Those are set out in two sections in her skeleton argument, one headed “Anxiety is a symptom of menopause” starting at paragraph 40 and the other “Work environment evidence” starting at paragraph 46. 20. In 2011 Miss Morris was diagnosed with early menopause. Her impact statement (page 35) sets out what she describes as the usual symptoms typically experienced by someone with early menopause including “mood changes, such as low mood or anxiety”. She states (first full paragraph on page[36]that if she was not taking hormone replacement therapy she is more likely than not to suffer with symptoms such as the above, however, she does not specifically describe an experience with and without HRT which provides direct evidence in her case that symptoms of anxiety were linked with early menopause. The description in her impact statement of her own deduced effects (the bullet points on page 36) focus more on self-consciousness and low mood than the adverse effects of the impairment of anxiety noted by Employment Judge Milner-Moore (see para.8.a on page 51 which recounts the impact statement evidence about anxiety). The evidence accepted by Judge Milner-Moore was that, in January 2021, a psychiatrist reported that the claimant had no pre-existing problems with mental health before May/June 2019 (para.9 page 51). Her findings about the adverse impact on the claimant’s ability to carry out day to day activities (para.18 page 55) describe feelings of fear, difficulty concentrating and with normal social interactions, persistent general low motivation/loss of interest and feeling nauseous at the thought of going into work. 21. The claimant’s description of the effects of anxiety are in section 2 of the impact statement, starting at page 36. In the bullet points on page 37 she describes the effects of anxiety which have been helped by coping mechanisms introduced following therapy. She did not in that section give primary evidence from which it could be inferred that HRT helped with any of those symptoms.22. The claimant’s first argument before me was that account should be taken of the effects of HRT treatment on anxiety because it masks the impacts of anxiety. She relies upon Guidance para.A7 to argue that there is a parallel between the example given and her own situation: in the example a woman who is obese cannot rely upon obesity as an impairment but the effects of obesity (difficulty breathing and walking) can be considered because it is the effects of the impairments that need to be considered rather than the underlying conditions themselves. She says that the impacts of anxiety should be considered without the effects of the treatment for early menopause and relies on a number of passages in the Guidance on the definition of disability dated 2011 in particular in relation to this paragraphs B12 and B13. 6 ph judgment + cm Nov 2014 wip version23. She also argues that the general state of her health, including the symptoms of early menopause that she experiences, excluding reference to medical treatment, are relevant to whether the adverse effects of the anxiety that is the instant impairment in the present case, are likely to continue. In the same way, she argues that the question of whether the adverse effects of anxiety were likely to continue should be judged with reference to the effects and not the cause: that the general state of the claimant’s health included that, save for HRT, she would be experiencing anxiety associated with premature menopause which affects whether the effects of anxiety could well continue.24. She argues that where Judge Milner-Moore relies upon her recovery due to counselling in 2011 she impermissibly failed to take account of the effects of treatment, that the claimant was then undergoing, when concluding that when experiencing poor mental health in 2019 she was likely to recover. I see some force in that; the effect of 2011 counselling is something I disregard in reaching my conclusions.25. She also argues that account should be taken of the overlapping effects of other conditions and points to B6 and C2 in the Guidance saying that anxiety and menopause have underlying and overlapping effects with anxiety.26. In countering this argument the respondent arguses that this is effectively seeking to argue the impairment of menopause despite that being ruled out when the amendment application was unsuccessful. They go on to argue that there is no evidence from which the tribunal can safely conclude the deduced effects of the claimant’s treatment for the effects of menopause during 2019; nor does the treatment in 2011 assist because she was on different medication at that time. Mr Watson also argued that the argument was entirely speculative because there was no evidence before me about what impact the drugs prescribed for the claimant’s menopause had on anxiety.27. Linked to this argument, the claimant suggested that, although Employment Judge Milner-Moore said she did not have depression at the relevant time, this could be considered when looking at what could well happen in the future because of the common experience that people who have anxiety may also develop depression.28. The secondary argument by the claimant is that I should consider the evidence of the work environment. She argues that that evidence leads to an inference that the impacts on her of the impairment of anxiety were likely to continue and it can safely be concluded they were likely to continue for at least eight and a half months.29. She points to page 151, an emailed analysis dated 11 September 2019 of a number of events from the respondent’s perspective. In numbered paragraphs matters are recorded such as an emotional reaction after receiving an appraisal in April 2019. The events in China at the end of May/beginning of June from the respondent’s perspective and complaints of the claimant feeling overworked and overwhelmed are recounted. The author recounts, from their perspective, an apparent improvement and then (No 6) that the claimant started to disengage. The claimant says that this is an effect of anxiety. They then recount the sickness absence that the claimant had in July and that is the time 7 ph judgment + cm Nov 2014 wip version when she had the first visit to her GP. They record that the claimant was signed off for two weeks on 22 July with work stress being on the MED 3.30. The email then goes on to record (No 9) that Miss Morris returned to work on 5 August and that there was a discussion about workload. I am mindful that this is the respondent’s point of view, not the claimant’s point of view. This is not something about which there has been contested evidence because it would be the subject matter of the substantive dispute if the matter were to reach a final hearing.31. The one-week holiday in the week commencing 12 August is recorded and then it is noted (No 10) that in the week commencing 19 August a new account split was issued with the claimant expressing some reluctance on taking on existing orders within her new account, according to the respondent.32. They record in No. 11 that they have observed things improving since her holiday. This is consistent with the record in Dr Edgar’s report that the claimant had obtained some benefit from the holiday but not as much as she had anticipated. And then they record the claimant becoming upset on 10 September. As an aside, the claimant’s own email at page 157 makes allegations of poor conduct against the respondent in relation to that meeting.33. The claimant also drew attention to page 155, just above the signature of the Operations Manager, in an email forwarding some minutes of a meeting dated 10 September where the comment is recorded: “Everything was working really well last week, was [sic] has changed? How is Steph going to cope when we get busier, as at the moment we are very quiet.”34. The summary of the claimant’s argument is that in this period, according to the findings of Judge Milner-Moore, the impacts of her condition were never less than substantial. The evidence is, from the respondent’s perspective, that they were likely to get busier at work, there was no reason to conclude that anything would change except for her to be likely to experience greater workplace stresses, and therefore it is likely, in the sense that it could well happen, that she would continue to experience the substantial adverse effects of the condition.35. Mr Watson countered that by pointing to work events which appeared to have increased the claimant’s feelings of stress at work before she consulted her GP. There had been a recent departure of some colleagues (see the first line of the entry for 17 July 2019) and he argued that at least one of those three people would expect to be replaced. 36. He accepted that medical evidence of prognosis was not necessary in every case but contrasted the present with one where the effects of an impairment have lasted 11 ½ months and it was relatively easy to infer that those effects could well last another 2 weeks. In the present case he pointed out (see RSKA para 29) that the claimant attended her GP twice for stress/anxiety in July 2019 but did not return to them before she was dismissed. The diagnosis was of anxiety state NOS and the claimant was signed off work for a short period of time. He argued that the medical evidence does not provide a basis for saying the effects could well last at least 12 months in total. 8 ph judgment + cm Nov 2014 wip version[37]By contrast, Mr Watson divided the material period into three sub-periods (RSKA para.30) and, in oral argument, pointed in particular to the last of those. He stated that the documentary evidence from the claimant’s return to work from sickness absence provided little evidenced of outward signs of anxiety (e.g. her email on page 157), holiday but no further sickness absence and no return to her GP for an alternative to Propranolol. Findings of Fact and Conclusions on the Facts[38]Neither at the hearing before Judge Milner-Moore nor at that before me did the respondent challenge the claimant’s account through her impact statement date 16 September 2020 of the impact on her of the impairment. She was not required to be cross-examined.[39]It is important that I say a few words about medical evidence. There is clear authority that medical evidence is not essential, it is not necessary in deciding this particular aspect of the statutory test for disability. However, evidence of some kind clearly is. The threshold is more than what is merely possible and there were times during the claimant’s submissions when she seemed to elide the word ‘could,’ whether something was possible, with “could well”. The question is whether there is a real possibility - the statutory language is likely. I set out at para.12 & 16 above occasions where the EAT has made clear the reasons why medical evidence from the vantage point of the relevant time, following a diagnosis, is necessary in most cases and certainly advantageous. However, a diagnosis can be made and recorded in GP notes, medical evidence can be found in Occupational Health reports or sickness certificates where those exist.[40]There is a report (dated 14 January 2021) and addendum report (dated 29 March 2021) in the hearing file from Dr Edgar but it is common ground that the expert opinion evidence in that report does not assist me with the question of whether, as at 19 September 2019, the adverse effects of the impairment were likely to last for 12 months. It does not include opinion evidence of a prognosis from the vantage point of the relevant time. Dr Edgar wrote his report without having seen the claimant’s contemporaneous medical records.[41]In dealing with the claimant’s first argument I remind myself of the findings that bind both of the parties and myself that the claimant started to experience the symptoms of anxiety only in May 2019 (paragraph 17 of Judge Milner-Moore’s judgment). Furthermore, this is consistent with the extract recounted in Judge Milner-Moore’s judgment from the claim form where the claimant had apparently said she had not suffered stress and anxiety before the events that are the subject of the claim. That is also consistent with the account given to Dr Edgar in the report that is in the hearing file.[42]I am conscious that I need to take care not to make findings that are inconsistent with those of Judge Milner-Moore and, as I set out in para.19 above, Miss Morris’s impact statement account of the deduced effects of menopause or anxiety do not claim that the adverse effects of the impairment of anxiety which is under consideration were or would be experienced by her if she were not being treated for early menopause. The impact statement recites “the usual symptoms” of menopause without claiming they have without 9 ph judgment + cm Nov 2014 wip version exception been experienced by the claimant and, separately, what she claims are deduced effects of menopause in her case. There is some overlap with the adverse effects described in Judge Milner-Moore’s paragraph 18, but they do not include some of the hallmarks of anxiety state.[43]My view is first that, by this argument, Miss Morris in effect is urging me to make findings which risk conflicting with the binding findings of Judge MilnerMoore because I am asked to conclude that in fact the claimant had the effects of anxiety before May 2019 since they are now said to be linked to menopause.[44]Secondly, the claimant is arguing that the actual effects should be magnified by taking account of what would have been the situation had menopause related anxiety or low mood not been masked by HRT. Contrary to the respondent’s argument, I do not think that this goes behind the decision to refuse permission to rely upon early menopause as an impairment; there is no reason in principle why the effect of treatment for an excluded condition on the adverse effects of the relevant impairment should not at least be considered if there is evidence that it had an effect. However, Miss Morris’s impact statement does not set out primary evidence that the effects of anxiety on her ability to carry out day to day activities were masked in any way by HRT during the material time (see my analysis at para.20 above). Therefore reliable primary evidence to support the argument is not available in the documentation before me. Had that been her argument, there is no reason why that would not have been argued previously.[45]When considering whether the claimant has shown that it is likely that the HRT treatment has had an effect on her mood, the only evidence of substance that has been provided concerns the common symptoms of menopause. I do not think that it is right to give weight to evidence that is effectively set at population level rather than addressing the experience of the individual in a condition where experiences vary so much. Miss Morris supplements the available evidence with reference to findings in other first instance decisions but findings about the impacts on individuals in other cases are not evidence in the present case.[46]The height of the claimant’s evidence is her assertion in the impact statement that if it were not for the effects of HRT treatment (which has changed from time to time) she would be likely to suffer from the usual symptoms taken from the NHS website. I do not consider this to be a reliable basis for a finding that she was likely to be experiencing a specific symptom. In effect she asserts that she would be likely to experience all of the usual symptoms or that it should be presumed that she would experience anxiety. This does not amount to more than mere possibility.[47]The argument about cumulative effects and the link to depression effectively asks me to speculate that the claimant could well or would have become depressed (CSKA paragraph 53). There is no evidence that has been presented before me that is not otherwise explained on which to base that inference. There is no evidence (whether expert medical evidence or primary evidence of fact) from which I could safely infer that Miss Morris could well have developed depression as a secondary condition from anxiety and should therefore conclude that the adverse effects of anxiety were likely to last for a total of at least 12 months. 10 ph judgment + cm Nov 2014 wip version[48]I turn to the claimant’s secondary argument, that the likely work environment from September onwards means that it is likely that the adverse effects of the impairment would continue until at least May 2020.[49]The claimant has disclosed her GP’s records and the relevant period starts at page 216. The first contact with the GP for anxiety is noted on 17 July 2019 when claimant was prescribed propranolol. Although she was given 28 days prescription she says, and I accept, that she only took it for two weeks because she did not derive much benefit from it. The effects of any Propranolol therefore do not need to be considered for the purpose of any deduced effects argument.[50]A brief chronology of relevant events over the period is as follows:a. May 2019: the adverse effects of anxiety become more than trivial;b. May to June 2019: page 151 evidence occasions when the claimant felt overwhelmed;c.16 July 2019: page 151 – respondent reports a conversation in which they asked Miss Morris if there was anything they could do to help;d.17 July 2019: Miss Morris is absent from work (self-certifies) and visits the GP about work related stress and a general diagnosis of anxiety state NOS is made (page 217). 28 days’ supply of Propranolol prescribed;e.22 July 2019: Miss Morris certified unfit to work for 2 weeks (page 110);f.5 August 2019: Miss Morris returns to work (page 113);g.12 August 2019: Miss Morris has a week’s holiday – she later tells Dr Edgar that she obtain some benefit from this but not as much as she had expected;h.19 August 2019: Miss Morris returns to work from her holiday (page 151 No: 10);i.10 September 2019: Miss Morris becomes upset at work with feelings of being overwhelmed and overworked which she explains to the respondent (her email page 157). The email of 11 September (page 151) from the Operations Manager follows this.j.19 September 2019: Miss Morris is dismissed.[51]The record of conversations over the relevant period with the GP (page 217) record that work related stresses include the number of people who have left mean the claimant has had to step up to carry more work and that she is now in a position of having to train assistants. I accept the respondent’s argument that I can draw inferences from the respondent having vacancies and, in my view, also from the apparent discussions about distributing workload (page 151). I conclude that these matters provide reason to think that the work environment would not have either remained the same or got worse in all respects, as 11 ph judgment + cm Nov 2014 wip version alleged by the claimant, had she not been dismissed. This is some evidence that the respondents were responding to the claimant’s description of being overwhelmed but also there might be an expectation that people would be replaced. Having said that, it is not right at this hearing that I make definitive findings about what would have happened. I have not heard from the relevant witnesses. My task is to take a broad look at the evidence that has been presented so far in deciding whether or not the claimant has established that it is likely that the adverse effects of anxiety would continue for a further eight and a half months. She argues that there are grounds to think the work environment would have become more pressured; conversely there are grounds to think that it would not.[52]As at 19 September 2019, Miss Morris had been feeling overwhelmed at work and experiencing the relevant adverse effects for a relatively short period of time. Someone with those experiences also might reasonably be expected to adopt some coping strategies of the kind which are not themselves a significant adverse impact upon the individual’s abilities. An example might be a lunchtime walk. This illustrates the difficulty of speculating on what was likely to happen in the period mid-September 2019 to May 2020. I am not able on the evidence to distinguish between the likely effects of such a coping strategy and the effects of the period of holiday or sick leave, given the claimant’s relatively short attendance at work after the return from holiday. The fact of any improvement suggests that the adverse effects, themselves of comparatively short duration, were not indicative of a chronic problem.[53]The passage in the email at page 151 referred to by the claimant does suggest that this was a workplace with stresses; there would be no doubt peaks and troughs to come. But I am being invited to speculate that the environment would continue essentially unremitting in the pressure upon the claimant or become worse without taking account of potential alleviating factors. That would be to take a one-sided view of the information available.[54]The claimant argued before Gavin Mansfield KC that consideration needed to be given to whether and in what circumstances the impacts of anxiety might have reduced to the point when they were trivial. A number of scenarios might have played out. It is speculation to consider whether any particular scenario could well mean that the adverse effects of anxiety could well continue until May 2020. It is not for me to consider whether it is unlikely that the claimant would recover but whether she has shown it could well be that she would not. I reject the argument, on the information before me, that as the duration of the effects extended that itself becomes a reason to expect the duration of the effects to lengthen further. That is not an argument I’m willing to accept without medical evidence when in the present case the effects had been of relatively short duration at the material time. Indeed, this is the sort of case where the subtleties of whether, when and to what extent an individual might recover from anxiety and/or then the adverse effects recur are difficult if not impossible to assess when there is no medical evidence about the prognosis of anxiety state even in the population as a whole, let alone for this claimant.[55]The burden is on the claimant to show that this was the situation and that, as at September 2019, the workplace situation could well continue for a further eight and a half months and she could well have continued to experience those 12 ph judgment + cm Nov 2014 wip version adverse effects. I am not satisfied that that burden has been discharged although the nuance and the complexity of the arguments that have been set out today show why it was necessary for that issue to be remitted following the appeal. Employment Judge George 5 April 202408/04/2024 For the Tribunal: Recording and Transcription Please note that if a Tribunal hearing has been recorded you may request a transcript of the recording, for which a charge may be payable. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings, and accompanying Guidance, which can be found here: https://www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/ 13 ph judgment + cm Nov 2014 wip version