Mrs P Miles v London North West University Healthcare NHS Trust: 3302831/2024
EMPLOYMENT TRIBUNALS
Case No 3302831/2024
Between
Mrs P MilesClaimantLondon North West University Healthcare NHS TrustRespondent
Before
Employment Judge CowenIn person for claimantMs Lee (instructed by counsel) for respondentDate 3 March 2025
JUDGMENT
[1]The Claimant was a disabled person by way of s.6 Equality Act 2010 between February 2023 and her dismissal in December 2023.
REASONS
[1]The Claimant was employed by the Respondent as an Audiologist between 20 February 2012 and 17 December 2023.[2]The Claimant issued a claim in the Tribunal on 4 March 2024, but did not provide details of her claim until 13 September 2024. By an order of the Tribunal on 18 November 2024, the Claimant was to provide an impact statement and medical evidence of her disability by 20 January 2025.[3]On 9 January 2025, the Claimant wrote to the Tribunal asking for the orders to be suspened. She said that this was because she was trying to recover from depression. This application was refused on 6 February 2025 and the Claimant was given until 21 February 2025 to comply with them[4]On 7 February 2025, the Claimant wrote to the Tribunal and Respondent saying that the first diagnosis letter by an occupational therapist stating that she had moderate depression (dated 28 February 2023) was not available, as the Claimant has no access to her NHS emails. She provided a handwritten impact statement and some medical reports. She indicated that others would follow when she received them.[5]The Claimant did not provide any GP records, indicating that she had been sent a link by her GP, but that she had not activated it to access the records.[6]A bundle of documents was produced for the purposes of today’s hearing which included;a. Xyla digital therapies letter dated 19 June 2023- in which the Claimant was recommended Guided Self Help CBT Therapy via telephone for Generalised Anxiety. This commenced on 19 June 2023.b. Xyla Digital Therapies letter dated 29 September 2023 which stated that the Claimant was being discharged back to her GP with a follow up call from Brent Talking Therapies in 3 months time.c. A letter from the Senior Counsellor at Sudbury Medical Centre, dated 20 March 2024 indicating that the questionnaires the Claimant responded to show moderately severe levels of depression and severe levels of anxiety. The Claimant was offered remote sessions of CBT.d. CNWL NHS Talking Therapies letter dated 7 February 2025 indicating that the questionnaires the Claimant responded to show severe levels of depression and severe levels of anxiety. The Claimant was discharged without any treatmente. The Claimant’s handwritten impact statementf. Referral to OH dated 4 February 2023g. Emails indicating that the Claimant did not attend OH appointments in March and May 2023h. Fit notes dated 26 April 2023 to 7 January 2024 which refer to work related stress.[7]The Claimant’s allegations of discrimination appear to date from 2012 to April 2023 (although the allegations were not case managed and therefore may extend to June 2023 or December 2023)[8]The Claimant’s evidence was that she started experiencing symptoms of anxiety in 2012, after an incident with a colleague. Although various incidents occurred, the Claimant said that it was not until 2020 that she realised that she was depressed and started to feel that she could not cope It was not until 23 February 2023 that the Claimant saw an Occupational therapist (letter not seen by Tribunal) who told the Claimant she was suffering from moderately severe depression and advised her to see her GP.[9]The Claimant said that she had a telephone appointment with her GP on 26 April 2023 who signed her off work and sign posted her to various organisations. She was not prescribed any medication as she did not want anti-depressants as she understood them to have side effects and be highly addictive.[10]The Claimant did not specify in her evidence a time period for her symptoms, but her impact statement spoke of her general feelings from February 2023. She described that she worried a lot about what was going to happen to her. She skipped meals and lost weight. She forgot appointments (including the occupational health appointments), and struggled to organise herself and her children, including with regard to her own and her children’s hygiene. She also struggled to answer emails and to type.[11]The Claimant also described that she could not prepare meals, play with her children and did not want to socialise, or watch TV. She also suffered with sleeplessness. She described that she has stopped driving due to her concern that she cannot concentrate sufficiently.[12]The Claimant described that at work she was forgetful, was slow in completing tasks and had difficulty concentrating.
The Law
[13]S.6 Equality Act 2010 sets out the definition of disability as: (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.[14]The Tribunal therefore must consider each of the four requirements;a. The Claimant had a mental/physical impairmentb. Whether the impairment affected the Claimant’s ability to carry out normal day to day activitiesc. Was the adverse condition substantiald. Was the adverse condition long term[15]The case of Igweike v TSB Bank plc [2020] IRLR 267, EAT, set out that all the criteria must be considered, and that medical evidence was not necessarily required to prove the impairment, but that it may affect the outcome as the individual’s own evidence may not be sufficient to satisfy the tribunal of the existence of the impairment.[16]The time at which the Tribunal is to consider the disability is the date of the alleged act of discrimination. This is also the relevant date when considering whether any impact is long term. All Answers Ltd v W 2021 IRLR 612, CA, set out that the Tribunal must look at the facts and circumstances existing at the date of the discrimination and not to events which occurred subsequently.[17]The Tribunal must take into account Statutory Guidance on the definition of Disability (2011) which stresses that it is important to consider the things that a person cannot do,or can only do with difficulty (B9). This is not offset by things that the person can do: Aderemi v London and South Eastern Railway Ltd 2013 ICR 391. Day to day activities are things people do on a regular or daily basis such as shopping, reading, watching TV, getting washed and dressed, preparing food, walking, travelling and social activities. This includes work related activities such as interacting with colleagues, using a computer, driving, keeping to a timetable etc ( Guidance D2 – D7)[18]In Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763, Elias J said:''… when assessing the effect, the comparison is not with the population at large. As paragraphs A2 and A3 [of the then Guidance] make clear, 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.”[19]The burden of proving disability lies with the Claimant who must provide evidence of circumstances which fall within s.6 Equality Act 2010. Each disability must be considered independently.[20]The Claimant’s evidence indicated that she first suffered from symptoms of anxiety in 2012, but that these were not substantial. By 2020 the Claimant was aware that she was not coping with some day to day activities, but did not seek any help. At this point it did not appear that the effects were substantial as the Claimant continued to work and did not attend her GP, or any other source of support.[21]The first medical assistance the Claimant received was in February 2023, when an occupational therapist told the Claimant it was likely that she had a moderately severe depression and anxiety. After this the Claimant did visit her GP, but was given sign posting to organisations for talking therapies. These have been undertaken by the Claimant, but appear to have been ongoing at the time of her dismissal. The Tribunal noted that there was no contemporaneous GP record available, but considered that the other medical records and the Claimant’s own account were sufficient to prove the effect of her impairment.[22]The Tribunal took into account that from February 2023 the Claimant was scoring highly on the self-report questionnaires which led to her referral to Xyla. The letter from Xyla set out in that in June 2023 the Claimant was to be treated for Generalised Anxiety. At that time, there was no mention of Depression in their assistance to the Claimant, but the scores given seem to be close to the scores in the March 2024 letter which are said to show “moderately severe levels of depression and severe levels of anxiety”.[23]The Tribunal therefore acceptED that the Claimant was suffering from symptoms of moderately severe levels of depression and severe levels of anxiety in June 2023 and that some level of these was present in February 2023 when she was first referred. Depression and anxiety are mental impairments which satisfy the first limb of the disability test referred to above.[24]The Tribunal also accepted the Claimant’s evidence as set out in paragraphs 10 to 12 above were relevant to the period from February 2023 to her dismissal in December 2023. The Tribunal accepted that these amount to day to day activities and that their effect was substantial. The Tribunal noted that the Claimant said that she was unable to organise herself and her children to cook for them, or to maintain a hygiene routine for herself. These amount to a substantial adverse effect. The Claimant’s lack of ability to concentrate or socialise also indicate substantial adverse effects.[25]The Tribunal considered that these effects appeared from the Claimant’s evidence and the medical evidence available, to continue to a time beyond the Claimant’s dismissal.[26]The Tribunal was therefore satisfied that the Claimant met the definition of disability in s6 Equality Act 2010 from February 2023 to beyond December 2023. Approved by: