Employment Judge GeorgeSelf representing for claimantMr R Magara (instructed by solicitor) for respondentDate 10 January 2026
JUDGMENT
During the material time for the claim, the claimant was not disabled by reason of depression and anxiety within the meaning of s.6 Equality Act 2010. Approved by: JUDGMENT on a Preliminary Issue having been sent to the parties on 31 October 2025 and written reasons having been requested in accordance with Rule 60(4) of the Employment Tribunal Rules of Procedure 2013, the following reasons are provided:
REASONS
[1]The background to the claim is set out in the Case Summary of Employment Judge W Anderson (RB page 114) and that of Employment Judge Codd (RB page 136). I refer to but do not repeat those summaries.[2]The case had been listed for a two day preliminary hearing. I timetabled the hearing at the start of Day 1 to provide for judicial reading time, evidence on disability and argument from Mr Magara (for the respondent) and the claimant with a view to delivering judgment on the disability issue in the afternoon of Day 2. In the event, this was not possible and I gave judgment at the start of Day 2.[3]I had the benefit of two Hearing files; the Respondent’s Bundle runs to 211 pages. Page numbers in that are referred to as RB page 1 to 211 as the case may be. The Claimant’s Bundle addendum runs to 199 pages. Page numbers in that are referred to as CB page 1 to 199 as the case may be.[4]The claimant explained that the reason for producing his own bundle was that the respondent had declined to include in the joint bundle a number of documents which he wanted to refer to at today’s hearing. One of the documents which the claimant stated the respondent had removed was the letter notifying him of the diagnosis of ADHD although he, himself, had not particularly wanted it in today’s hearing file. Shortly before we broke at the end of Day 1 – when I had heard evidence and submissions on the disability issue - Mr Magara explained that he had delegated preparing the hearing file and had, during the course of the day, enquired about the ADHD document. He stated that he did not want the claimant to be prejudiced if that document was not before me.[5]The claimant did not object as such to the document going in evidence although he observed that, based on his knowledge of the letter, it was, as he put it, “cheeky” of the respondent to suggest that it might prejudice him were it to be omitted. I read Mr Magara to be suggesting that he had a professional duty to draw the contents of the omitted document to my attention and when I suggested that to him, he agreed.[6]I agreed to admit it. ADHD is an admitted disability and there appeared to be ways in which the claimant argued that ADHD was relevant to my decision on the disability issue as I explain in more detail below.a. First, the claimant argued that as a person with ADHD he had a disposition to depression which was relevant to the question of whether depression was likely to continue into the future, as at 24 May 2024.b. Secondly, the claimant argued that the comorbidity of the two conditions was relevant to his submission on whether it was safe to infer that he did not experience substantial adverse effects of depression and anxiety much before the date he first went to see his GP.c. The claimant also argues that the effect of ADHD medication should be ignored.[7]Furthermore, the cumulative effects of impairments can be relied on as meaning that the adverse effects on an individual’s ability to carry out day to day activities are substantial.[8]At the respondent’s request, the claimant was recalled to be asked questions about the letter. I heard brief submissions following that additional evidence.[9]It was apparent from those questions that the respondent wished to rely on the diagnosis to make points about whether particular impacts were attributable to ADHD rather than to a psychological condition. Naturally, once the document was admitted, the respondent was free to rely upon it as was the claimant. However, the contents of the diagnosis did not appear on the face of it to bear out the suggestion that it would have prejudiced the claimant were I not to see it. I note that here lest the conduct of the litigation become something that the Tribunal has to consider at a later stage.
The Law
[10]A person has a disability, for the purposes of the EQA, if they have a mental or physical impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. Substantial in this context means more than trivial: s.212(1) EqA and Goodwin v The Patent Office [1991] I.R.L.R. 540. There is no sliding scale, the effect is either classified as “trivial” or “insubstantial” or not and if it is not trivial then it is substantial: Hutchinson 3G UK Ltd v Edwards UKEAT/0467/13. As it says in paragraph B1 of the Guidance on the definition of disability (2011), this requirement reflects the general understanding that disability is a limitation going beyond the normal differences which exist among people.[11]When considering whether the adverse effects on the claimant’s ability to carry out day-to-day activities are substantial the following factors are taken into account (see the Guidance Section B),a. The time taken to carry out an activity,b. The way in which an activity is carried out,c. The cumulative effects of an impairment,d. How far a person can reasonably be expected to modify his or her behaviour by the use of a coping or avoidance strategy to prevent or reduce the effects of the impairment,e. The effects of treatmentf. There may be indirect effects, such as that carrying out certain dayto-day activities causes pain or fatigue (See Guidance on definition of disability (2011) paragraph D22).[12]The cumulative effects of related impairments should also be taken into account (see paragraphs B6 and C2 of the Guidance).[13]In the present case, the respondent accepts that the claimant was disabled by reason of ADHD at all material times. However, they deny knowledge of ADHD.[14]The claimant contends that he was also disabled at the material time for the claim by reason of depression and anxiety. The material time for the claim approximately April 2023 to April 2024 – that is the time period covered by the disability discrimination complaints.[15]In the Court of Appeal’s decision in All Answers Ltd v W [2021] EWCA Civ 606, their Lordships summarised the relevant law at paras.24 to 26 of the judgment: “24. A person has a disability within the meaning of section 6 of the 2010 Act if he or she(1) has a physical or mental impairment which has(2) a substantial and(3) long term adverse effect on that person’s ability to carry out day to day activities….[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 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”. 16. In Herry v Dudley Metropolitan Council, UKEAT/0069/19/LA, HHJ Eady QC (as she then was) set out the legal framework at paras 29 to 31. Having set out section 6 EQA, she stated at paras 30 and 31: “30. The term “substantial” is defined by Section 212(1) EQA as meaning “more than minor or trivial”. It sets therefore, a fairly low threshold for a Claimant who bears the burden of proving that she is a disabled person for the purposes of the EQA (see Kapadia v London Borough of Lambeth [2000] IRLR 699 CA). Indeed, there is no real dispute between the parties as to the approach that an ET is to adopt in this respect, as was explained by the EAT (Langstaff J presiding) in Aderemi v London and South Eastern Railway Ltd [2013] ICR 591: ‘14. It is clear first from the definition in section 6(1) of the Equality Act 2010, that what a tribunal has to consider is on adverse effect, and that it is an adverse effect not upon carrying out normal day-to- day activities but upon his ability to do so. Because the effect is adverse, the focus of a tribunal must necessarily be upon that which a claimant maintains he cannot do as a result of his physical or mental impairment. Once he has established that there is an effect, that it is adverse, that it is an effect upon his ability, that is to carry out normal day-to-day activities, a tribunal has then to assess whether that is or is not substantial. Here, however it has to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation; unless a matter can be classed as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other.’” 17. What the employee is not able to do or is only able to do slowly or less easily is frequently taken into account to decide whether there is disability: Ekpe v Commissioner of Police of the Metropolis [2001] I.R.L.R. 605 @ 608 para 27. Furthermore, the EAT gave guidance on evaluating the adverse effects of an impairment in Goodwin where they said, “The fact that a person can carry out such activities does not mean that his ability to carry them out has not been impaired. Thus, for example, a person may be able to cook but only with the greatest difficulty. In order to constitute an adverse effect, it is not the doing of the acts which is the focus of attention but rather the ability to do (or not do) the acts. Experience shows that disabled persons often adjust their lives and circumstances to enable them to cope for themselves. ” 18. The EQA provides that, where an impairment is being treated, then it is to be treated as having a substantial adverse effect if, but for the treatment, it is likely to have that effect (Sch 1 para 5(2)). However, where the effect of continuing medical treatment is to create a permanent improvement rather than a temporary improvement it is necessary to consider whether, as a consequence of the treatment, the impairment would cease to have a substantial adverse effect (See 2011 Guidance at B16 and C11). And C5 ffg. 19. When considering the effect of a mental impairment such as depression the most frequently cited case is J v DLA Piper [2005] I.R.L.R. 608 EAT. Paragraphs 40 & 42 of the judgment of Underhill LJ read, “40: Accordingly in our view the correct approach is as follows:(1) It remains good practice in every case for a tribunal to state conclusions separately on the questions of impairment and of adverse effect (and, in the case of adverse effect, the questions of substantiality and long-term effect arising under it) as recommended in Goodwin.(2) However, in reaching those conclusions the tribunal should not proceed by rigid consecutive stages. Specifically, in cases where there may be a dispute about the existence of an impairment it will make sense, for the reasons given in paragraph 38 above, to start by making findings about whether the claimant's ability to carry out normal day-to-day activities is adversely affected (on a long-term basis), and to consider the question of impairment in the light of those findings. … 42: The first point concerns the legitimacy in principle of the kind of distinction made by the tribunal, as summarised at paragraph 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'. 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 – […] - 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 long-term effect requirement. If, as we recommend at paragraph 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 12 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 commonsense observation that such reactions are not normally long-lived.” 20. I have also had reference to other paragraphs in the guidance on the definition of disability (2011) including paragraphs A4 which states that the question of whether there was an impairment is generally judged with reference to the effects that the tribunal have found as a fact. Paragraphs A6 and A7 reflect the principle that the underlying cause may be hard to establish and that it is not necessary to consider it. By the same token, the absence of a diagnosis is not determinative of whether the impairment existed although it may be relevant to that decision. Findings and Conclusions on the Disability Issue 21. The practical advice in J v DLA Piper was to focus on what adverse effects the Claimant has shown there were on their ability to carry out day to day activities at the relevant time. Then I should assess whether those are substantial or not and determine when they started. If they were not initially substantial when did they become substantial? Then, in the present case, were they long term in the period April 2023 to April 2024 in the sense that they had lasted 12 months or were likely to last 12 months in total? The word likely in that context means (as it does in other contexts in the disability definition) “could well happen”. Had the substantial adverse effects lasted 12 months or, from the vantage point of the material time, has the claimant shown that the substantial adverse effects could well last a total of 12 months. 22. The Respondent argues that the existence of an impairment cannot be inferred. They say this, first, because there is no clinical diagnosis. The absence of a diagnosis of depression and anxiety is not determinative. However, it is at least relevant to the disability issue in the present case, that no clinician during the material time attributed the symptoms described by the Claimant to depression and anxiety as such, at least not so far as it appears from the notes. That has to be at least relevant to whether or not the existence of an impairment can be inferred from the facts found, given that the Claimant was in contact with medical professionals from at least October 2023 onwards. If, in October 2023, when he consulted medical professionals, they had diagnosed depression or anxiety, that would support a conclusion that there were adverse effects which were not transitory and were more than merely a reaction to a particular adverse life event. 23. Secondly, the Respondent argues that the Claimant has been inconsistent about the date from which he states he experienced adverse effects. They argue that at one point (in the Impact Statement) he says that they started in May 2023 and at one point that they started in October to November 2023. I reject that argument. Close attention to the words used show that the phrase relating to the later date is “at least October 2023” (my emphasis) and that is not inconsistent with the other ways that the time was described. I accept the Claimant’s explanation of those linguistic differences. 24. The Claimant adopted his Impact Statement and was cross examined on it in oral evidence. He also referred to in oral evidence to his Claim Form in which there is a discussion of what he states was the effect on his ability to carry out day to day activities caused by the actions he complains of. However, he has not found it possible to put specific dates to the effects he noted, he has not, in may case, put even an approximate date to the point from which he found his ability to carry out the activities he mentions were impaired. 25. He explained and I accept, that the incident referred to in the List of Issues at LOI 11.9, which the Respondent dated from April or May 2023, was an occasion following which he was unsafe to drive home because he was in tears. Other than that, it is difficult, if not impossible, to date particular effects on his ability to carry out day to day activities from his evidence. That is necessary to build up a picture of accumulated detail about whether the adverse effects were more than trivial and whether they indicated the presence of an impairment and from when. 26. The scanned ET1 and attachment in the Respondent’s Bundle are poor copies and difficult to read. At CB page 8 there is a legible copy of the Claim Form dated 12 April 2024 in which the Claimant states, “I have increasingly over the past year felt utterly dejected, hopeless and as the year went on I would find myself regularly crying “randomly” at the situation at work occurred to me during lunch breaks at work by myself, in front of my partner, in the evenings, and at weekends, as I tried to sleep and when I trying to enjoy hobbies, etc. … I’ve experienced a pervasive sense of anxiety and hopelessness which is invaded every aspect of my life, and had deleterious effects on my relationships. On a few occasions outside work I became so emotional about various aspects of treatment by my employer that I realised I could not safely drive and had to pull over, something which has never happened to me before.”[27]He continued in the Claim Form that he neglected life long daily passions and skills such as writing and producing music, that he would “crash” at the end of the working day. He referred to becoming increasingly secluded. He states, “Weekends were filled with feelings of inescapable dread of returning to the office, and even during longer breaks such as Christmas I found myself unable to function normally.”[28]This must be a reference to Christmas 2024.[29]In the Impact Statement the Claimant describes the effects on him as “deteriorating mental health”, (see RB page 198) he was emotionally overwhelmed, socially withdrawn, had cognitive difficulties and had a significant decline in functioning. Elsewhere the Impact Statement states the following: “The disabling mental health condition developed and escalated from around May 2023 onward.”[30]On the other hand, the claimant does not state what the particular effects on his ability to carry out day to day activities were at that point or much detail about the activities affected. He states it culminated in what he describes as a mental breakdown in late 2023, leading to GP intervention (see the chronology of medical evidence below). He says he was continuously unfit to work from between 8 January and dismissal on 24 April 2024. He said the effects had been continuous since at least mid 2023 and (at RB page 199) the Claimant describes the effects to his emotional state in similar terms to how they are described in the Claim Form. There is a difference between that description and the claim form in that the inference from the word “continuous” is that the effects were immediately as bad in mid-2023 as they were in the first months of 2024. This is inconsistent with the earlier statement that the impacts developed and escalated from around May 2023 onwards.[31]He describes mental fog, difficulty processing information and making decisions together with rumination. He states he had debilitating fatigue and lower energy, changes of appetite, neglect of diet, social withdrawal, neglect of self care, avoiding communication and tasks perceived as stressful and on occasion the emotional distress in 2023 was severe enough to impede his ability to drive. Some of those activities would quality as day-to-day activities: socialising, self-care, inability to carry out tasks without fatigue and ability to drive. However, the claimant does not give specific instances of when or how frequently this happened and, until January 2024, he managed to continue to attend work.[32]In oral evidence he also stated that he concentrated intensely on keeping going until, on the urgings of friends and family, he sought GP advice. He described this as akin to when you are running downhill and you focus intensely on keeping your feet moving to avoid falling. He seemed to be saying that when in a deteriorating mental health situation, he was focused so intensely on keeping going that he did not have the perspective that would have caused him to realise he needed to seek medical help.[33]He also argues that too much emphasis should not be placed on the date on which he sought medical help, for a different reason. He argues that as a person with his type of ADHD, the impact of his organisational skills, which were already challenged, of the mental health issues and the breakdown of his coping mechanisms meant that he felt he did not have time to do anything. He argues that that and the natural tendency on the part of someone with ADHD to procrastinate provides a reason to conclude that the adverse impact past the test of significance well before he answered the urgings of his nearest and dearest and took medical advice.[34]Nevertheless, the description of the Claimant prior to the start of such documentary evidence as there is of his visits to the GP for mental health problems, amounts, when analysed, to only a small number of examples on the impact of the abilities to carry out day to day activities. I say that because a lot of it is generalisation rather than him pointing to particular abilities to carry out day to day activities. He talks about changes in appetite, neglect of diet, social withdrawal, neglect of self care and difficulties communicating, not following his hobbies, becoming secluded, an impact on sleep and the one that is really clearly identified is his effect on driving.[35]My view of the evidence presented by the claimant is that it amounts to a small number of examples of things that he says were affected and not much granular detail about the way in which it impacted his day to day activities, to what extent and how frequently it did so.[36]The first description in the Impact Statement of a developing and escalating situation from May 2023, is broadly consistent with the timing described in the Claim Form, which was over the last year or twelve months. That would mean at the earliest from mid-April 2023, because the Claim Form was presented on 12 April 2024.[37]Given all of that, I am not satisfied that the Claimant has shown that the condition he is relying on immediately impacted his ability to carry out day to day activities in a way that was more than trivial. He has talked about it as a developing situation. For any adverse impact on his ability to carry out day to day activities immediately to be more than trivial would be inconsistent with the way he has described it. The lack of dates or frequency of the incidents that he relies on means that I am not persuaded that qualitatively or quantitatively the Claimant has shown the cumulative impact, for example on his hobbies, relationship, safe driving, sleep, appetite and diet was more than trivial at a particular date prior to the date in October when he consulted his GP.[38]The contact to him by his Therapist on 25 October means it is likely he contacted his GP before that date, and there is in fact a record of a telephone communication on 24 October. I accept that he was probably at his lowest ebb for some time before he was persuaded to visit his GP. However, it is clear that he was not at that point continuously at that level since May 2023.[39]Overall, the claimant’s evidence of adverse impact on his day-to-day activities does not provide sufficient detail to prove substantial adverse impact before October 2023. That should not be taken as a finding that he has shown substantial adverse impact at that time. I have to consider what the Claimant could not do, or what he could only do with difficulty. The evidence of that is limited to quite general statements. The one concrete example was that of being unsafe to drive home in April or May 2023 because he was overcome with emotion. That one occasion was a reaction to a specific event and is insufficient to support an inference that his ability to drive was, in general, adversely affected at that time.[40]I do accept that the effect on him on what he now knows to be ADHD, the diagnosis was in February 2024, probably meant that he did not seek help as soon as somebody without ADHD would have done and that does cause me to think that I should not draw a bright line to draw at the point when he sought medical advice between when the adverse effect of a psychological impairment were substantial and when they were not. It is not the case that when he sought medical advice it was because he had only then reached the point that there was substantial adverse impact and not before.[41]I do not overlook that it was his Therapist who pointed him, as I understand it, to the right route to an ADHD diagnosis so he was not in the process of getting an ADHD diagnosis prior to that point. Although one can see from his initial contact with the GP that that was something that was in his mind.[42]Furthermore, the comorbidity issue means that I do not think it is safe to infer the existence of a specific mental health condition from those effects which evidence suggests are as likely to arise from ADHD as from any coexisting psychological condition. See below for further details from the ADHD diagnosis.[43]Those are my findings and conclusions about the time period prior to the claimant consulting his GP. From that point there is documentary evidence in the form of a chronology of medical evidence. There was a telephone consultation with Dr Chong on 24 October 2023, where the Claimant is recorded as saying he was concerned about possible ADHD and he was referred for Therapy the following day. I take into account the contents of the letter (see CB page 190) from his Therapist, setting out some details of their contact. He had that first Counselling session following a booking in session on 25 October 2023. The first Counselling session was on 23 November 2023 and he underwent six sessions from then until May 2024. I accept his evidence that counselling ended because he had received the total amount offered by the NHS, not because he was discharged as having achieved a particular improved state of mind.[44]The Claimant started a Christmas break on 18 December 2023, according to information provided to the GP in the Medical Records. He had a Counselling session on 4 January 2024, by which time he had been off work because of the Christmas break and told the Counsellor that he did not feel as good as he was hoping. He was counselled about dealing with unhelpful thinking styles.[45]He then states and I accept that he was persuaded to seek time off work and on the following day a Fit Note was issued which certified that the reason for him not being fit for work was stress. The note of the consultation shows that he attributed his current mental state largely to work. This appears to have been following a contact with NHS 111 (RB page 207 & CP page 198) during which answers to the online questions or questions asked by the operator were recorded. It is difficult to place much reliance upon the nuance of these answers because they record answers to stock often binary questions rather than a narrative by the claimant. However he had said he had little interest or pleasure in doing things for the last 4 weeks.[46]The claimant had another Counselling appointment on 25 January 2024. It is recorded that he had not looked at the resources that the Therapist had sent to him. That might be suggested that he was not prioritising logically but it is difficult to know what to infer from that given that ADHD can cause impulsivity and difficulty in prioritising appropriate as well as the mood, or stress or mental element that the Claimant is also describing.[47]A further Fit Note was issued at the beginning of February 2024 for stress. On 7 February 2024 the Claimant had an ADHD Assessment.[48]The Claimant knows himself. He described to the ADHD Assessor those matters that he thought were relevant for the Assessor’s task of assessing whether or not he was a person with ADHD. However, the Assessor, a Psychiatrist, has to exclude other psychological causes for the matters that are reported, that is stated in the Report. There is clearly some discussion of mood. The claimant reported that he was low and stressed but on the other hand described himself as sleeping reasonably well despite putting off going to bed because of losing track of time. The other matters that are relevant in the Report that are noted by the Psychiatrist is that no psychological symptoms of depression, I accept that probably means clinical depression given the professional qualification of the person making the note, no scoring was done at the time of the Claimant’s mood. There is a note that there is no evidence of lack of self-care, although he has observed that his mood is “bad” but he is described as euthymic.[49]A Fit Note again for one month was issued on 15 February 2024 – again for stress. There had obviously been a discussion about medication but the Claimant had decided that was probably not helpful. He had started titrating medication for ADHD and did not want to cloud the assessment of the efficacy of that. Further monthly Fit Notes were issued until the date of the dismissal.[50]The Claimant argues that I should ignore the effect of medication taken for ADHD on his mood. He states those were stimulants and had a buoyant effect on his mood. He argues that I should make findings about the deduced effect of his mental health condition on his abilities, during the time after he started on ADHD medication, having discounted the effect on mood of that medication. He took it from about February 2024 onwards.[51]As with his description of effects on his ability to carry out day to day activities in general, his evidence does not provide enough specificity for me to deduce from his description that before titrating ADHD medication the effect of his mental health problems on his day to day activities was quantifiable as a particular thing and after starting the ADHD medication the effect was quantifiable as something else. That is the evidence which would be needed for me to draw an inference of deduced effect. Therefore, I discount that submission. Furthermore, I have no expert medical evidence about the effect of the particular drug taken in the prescribed quantities.[52]The Claimant also said that I should ignore the effects of Therapy. However, I do not have evidence to which I can attach weight about what the adverse effect on the Claimant’s ability to carry out day to day activities were by a monthly basis, from which I could infer what they would have been had he not undergone Therapy. He underwent Therapy, as I have just said, following an initial referral and the sessions lasted between November 2023 until May 2024.[53]I have referred to the Therapist’s letter which describes what he was told by the Claimant and that the Claimant told him about the effect work was having on him, which he described as profoundly negative.[54]There are three ways in which the Claimant relied on the inter relationship between depression and anxiety as he describes it and ADHD.a. First, that as a person with ADHD he had a disposition to depression which was relevant to the question of whether depression was likely to continue into the future, as at 24 May 2024.b. Secondly, he argues that the comorbidity of the two conditions is relevant to his submission on whether it is safe to infer that he did not experience the adverse effects when he went to see his GP, as I have already explained.c. He also argues that the effect of ADHD medication should be ignored but I have explained why I do not consider there is evidence from which I can draw any particular inference of deduced effects and reject that submission.[55]There is a tension between the way the Claimant described his mental health to the ADHD Assessor in February 2024 and what he says now. It may well be as he states that the communication to that Assessor was done having in mind that it was for an ADHD Assessment. I took that to mean that Mr Young said he did not emphasise mental health problems in that conversation.[56]Nevertheless, I am seeking to make findings about adverse effects and then infer the existence of a mental impairment, of depression and anxiety, from that. Where the ADHD Assessor has reported the Claimant telling him that he had no particular difficulties with sleep, self care and a good appetite, that is bound to contrast with the Impact Statement which says that he was actually experiencing poor sleep, poor self care and poor appetite in the same period. I accept that appetite is different to diet but both are mentioned in the Impact Statement.[57]Furthermore, there is a lifelong condition in this case, the effects of which on Mr Young and evidence of those effects was taken as supporting the ADHD diagnosis. Those overlap with the effects that he says leads to an inference of a long term mental health condition. A medical professional has attributed particular effects to one condition which has been diagnosed. I am now urged to infer from the same adverse effects that there was a different alleged long term mental health condition which has not been formally diagnosed at the relevant time. The absence of a diagnosis or explanation is particularly problematic in those circumstances.[58]The questions that the Claimant was asked to answer by Judge Anderson make clear that it is normally the time material for the claim that the Tribunal will be considering. Despite this, the collection of adverse effects that he describes are, in all but a handful of cases, not dated. I can accept as plausible that the effect of ADHD on him and his organisational skills mean that it is more likely than not that he did postpone making an appointment to see the GP until some time after he should have done, until some time after it was justifiable by his state of mind but how much before October is impossible to judge. The only documented PHQ-9 GAD7 scores was a date from after the material period. The clearest evidence he gave is in the Impact Statement but that talks about a deteriorating situation and therefore although it is described as a low bar for the litigant to have to surmount, nevertheless they do have to show some apparently credible evidence that their ability to carry out day to day activities was adversely affected in a way that was more than trivial from no later than the date which means they satisfy the long term criterion. Since his dismissal was in April 2024, for him to be disabled by reason of depression and anxiety as at April 2024, he would need to show that the adverse effects of depression and anxiety were substantial from no later than May 2023.[59]In reality, much of what the Claimant describes are not the adverse effects on his ability to carry out day to day activities, in so much as conclusions he would draw from it. He describes social withdrawal, an inability to enjoy previous hobbies, mental fog, fatigue, disrupted sleep although that is difficult to pin down to any mental health problem rather than ADHD.[60]This very limited number of examples mean that even though I accept in principle that he delayed in seeking medical advice beyond the point at which he started to experience adverse effects, he has not shown that the point at which the adverse effects became significant in the sense of having more than trivial adverse impact on his day-to-day activities at any particular date prior to October 2023.[61]There is also the problem that some of the matters are positively explained by ADHD and therefore to infer a mental impairment from them, is problematic and not something that can safely be done.[62]My sense is that since the Claimant was certified unfit to work, it can safely be concluded that the adverse effects of low mood or mental health problems were more than trivial from that point as it was stress or the effect of work on his mood which meant he was unfit for work. That dates it no later than 5 January 2024. It is probable that the adverse effects were substantial before that date but it is hard for me to make specific findings of a particular date because of the uncertainty that I have referred to.[63]Consequently, as at the date of dismissal, the substantial adverse effects have not lasted for 12 months and I have to consider whether they could well have lasted for a total of 12 months. On my findings the Claimant would have to show, from the vantage point of 24 April 2024, that the substantial adverse effects could well have continued up to the end of December 2024. There is no evidence to support that inference. Fit Notes citing stress were monthly, they were not increasing. I infer from that the GP thought that it was worth reviewing the Claimant monthly, anticipating potential improvements. There had only been a series of four Fit Notes at the time of dismissal. It is not in my view possible to infer from that that the same effects could well have continued, particularly since there was the potential for Therapy to achieve a permanent improvement. The point is that the potential for improvement is evidence which weighs against an inference that the adverse effects could well continue some months into the future.[64]The argument that someone with ADHD has a propensity to depression is an interesting argument but there is no medical evidence of that and beyond a general acceptance that that might be so, I think that is insufficient to find a conclusion that any substantial adverse effects on this claimant could well last for a further eight months.[65]I therefore do not accept that the impact of the Claimant’s mental health condition as at the vantage point of 24 April 2024 satisfies the long term condition. Such adverse effects as are shown had not lasted 12 months as at that date and he has not shown that they could well have continued to have significant adverse effects for the full 12 months that is necessary under the definition. Approved by:
The Law
The Law
[1]The claimant has applied for a reconsideration of the delivered orally on 15 October 2025 and sent to the parties in writing on 31 October 2025 is refused. Having considered the application under r.70(2), the employment judge considers that there is no reasonable prospect of the judgment being varied or revoked on the grounds that it is in the interests of justice to do so. The application for a reconsideration is rejected.[2]The procedure for an application for a reconsideration is set out in r.70 Procedure Rules 2024. It is a two stage process. If the employment judge who chaired the tribunal panel which made the judgement considers that there is no reasonable prospect of the original decision being varied or revoked the application shall be refused under rule 70(2) and the Tribunal shall inform the parties of the refusal. Otherwise the Tribunal shall send a notice to the parties setting a time limit for any response and seeking the views of the parties on whether the application can be determined without a hearing. That notice may set out the Judge’s provisional views on the application. Unless the judge considers that a hearing is not necessary in the interests of justice, if the application is not rejected under rule 70(2), then the original decision shall be reconsidered by the full tribunal who made the original decision.[3]Where a litigant applies for a reconsideration on the grounds that new evidence is available they must persuade the employment tribunal that the evidence could not have been obtained with reasonable diligence for use at the hearing, that the evidence would probably have had an important influence on the outcome of the case and that it is credible (Ladd v Marshall [1954] 1 WLR 1489 CA). As was said in Wileman v Minilec Engineering Ltd [1988] I.R.L.R. 144 EAT, the evidence must not only be relevant but it must be probable that it would have had an important influence on the case for tribunal hearings are designed to be speedy, informal and decisive. However, it is not necessary that the new evidence should be shown to be likely to be decisive. The question for the tribunal on reconsideration is “in the light of what we know about this case, has it been shown to us that the evidence is relevant and probative, and likely to have an important influence on the result of the case?” (paragraph 15 of Wileman v Minilec)[4]The power to reconsider a judgement under rule 70 can only be used if it is necessary to do so in the interests of justice. That is apparent from the wording of the rule itself and, as it was held, by HH Judge Shanks in Ebury Partners UK Limited v Acton Davies [2023] IRLR 486 EAT a central aspect of the interests of justice is that there should be finality in litigation. “It is therefore unusual for a litigant to be allowed a ‘second bite of the cherry’ and the jurisdiction to reconsider should be exercised with caution. In general, while it may be appropriate to reconsider a decision where there has been some procedural mishap such that a party has been denied a fair and proper opportunity to present his case, the jurisdiction should not be invoked to correct to suppose that error made by the ET after the parties have had a fair opportunity to present their cases on the relevant issue. This is particularly the case where the error and it is one of law which is more appropriately corrected by the EAT.” (Para 24 of the judgement of HHJ Shanks).[5]The communication of 20 October 2025 is treated as an application for reconsideration although the claimant subsequently said that he intended to apply for a reconsideration on receipt of the written reasons. This judgement makes a decision on the arguments advanced in “Claimant’s factual correction note” sent to the tribunal on 20 October 2025. It is within the rules to make a second reconsideration application so this determination is not inconsistent with the direction I made that time for reconsideration is extended to 14 days after the written reasons for the disability judgement are sent to the parties.[6]In that PDF (the file name is “claimant correction of dates”) the claimant makes the point that the argument on whether or not he was disabled at the material time by reason of depression and anxiety proceeded on the basis that the last alleged unlawful act was that of dismissal on 24 April 2024. He argues that pleaded complaints of disability discrimination are said to have taken place after 24 April 2024, the date of his dismissal. Since the basis on which I decided that he was not disabled at the material time was that he had not shown the substantial adverse impact of the impairment to have been long-term he argued that it was important for my decision if I erred about the dates relevant for the claim.[7]I have reference to but do not repeat the details in the Case Summary sent to the parties with this reconsideration judgement. It is clear from the List of Issues appended to that Case Summary, which is very little changed from that appended to the Case Summary of Employment Judge Codd that the basis of this reconsideration application is misconceived: 7.1. The direct disability discrimination complaint is set out in List of Issues section[15]The last date of any alleged unlawful act is that of dismissal with effect on 24 April 2024. The List of Issues incorporates the amended claim proposed amendment application at RB page 120 and additions to the direct disability discrimination complaint are faithfully recorded in LOI 15. In particular the written application to amend at RB page 120 does not seek to introduce a complaint that conduct of the disciplinary appeal was discriminatory. 7.2. Similarly the last alleged act of disability-related harassment referred to is monitoring via CCTV from November 2023 onwards. This must have been prior to the claimant’s sickness absence and certainly cannot have taken place after his April 2024 dismissal. 7.3. The complaint under section 15 Equality Act 2021 includes a complaint about deductions from the claimant’s last payslip and of failure to engage with the 2024 investigation process. However if one looks at RB Page 121 the factual scope of the amendment application was the same as that for the direct disability discrimination complaint. That too did not complain that any act postdating dismissal was discrimination for a reason arising in consequence of disability. 7.4. As pointed out in the claimant’s Factual Correction Note, the January 2025 amendment application does set out (RB page 91) a narrative about the appeal which concluded in July 2024. However this is merely states that Ms Neil’s actions “may” be discriminatory and reference to the appeal was not carried forward to the written application to amend perfected following the direction of Judge Codd. The respondent and the Tribunal are entitled to rely upon that later amendment application as focusing on the matters the claimant intends to seek to prove were discriminatory at final hearing. Furthermore the claimant’s proposed List of Issues did not complain about the appeal as direct discrimination (see CB page 180 LOI 15) or discrimination for a reason arising in consequence of disability (see CB page 183 to 184 LOI 18). Neither of those places contain reference to the conduct of Ms Neil’s decision on the appeal. 7.5. The claimant’s submissions at paragraph 1.2 page 2 of his Note appear to presume that LOI 15.2, 15.4, 15.7, 18.3, 18.7 and 18.10 encompass an allegation of discrimination by the decision-maker at appeal stage. They do not as it would be an allegation against a different individual who is said to have acted for discriminatory reasons. That would have to be listed separately as a separate allegation from the decision to dismiss or conduct of the investigator. 7.6. The wording contrasts with the victimisation complaint in the claimant’s draft List of Issues at CB 186 which specifically complains about the appeal. 7.7. The reasonable adjustments complaint in LOI 6 only refers to adjustments which it is argued should have been implemented dismissal. 8. I therefore reject the argument that the disability issue was decided on the basis of an incorrect time period. The victimisation claim does include alleged acts which are said to have taken place after 24 April 2024. However it is not a necessary element of the victimisation claim that claimant should be disabled. It is admitted by the respondent that the claimant was disabled by reason of ADHD. The claimant has to show that he did protected acts and that they were the grounds of the alleged treatment not that he was disabled and that his protected status was. 9. Another reason why the reconsideration application does not set out any reason to vary the judgment that the claimant was disabled by reason of depression and anxiety is that, on the basis of my finding that substantial adverse effects impairment did not begin until October 2023 at earliest, they were still not long term as at the appeal outcome July 2024. 10. Contrary to section 3 on page 3 claimant’s note, LOI 18.18 does not include an allegation of continuous conduct after conclusion of the disciplinary process. A natural reading of that allegation is that the respondent took steps within the disciplinary process to conceal the nature of the 30 January 2024 meeting. The allegation does not include a complaint about the handling of the Data Subject Access Request. 11. The reference in para.3.3 of the Note (page 3) to RB page 124 – 125 is nothing to the point. That location is a reference to the DSAR as an explanation for delay by the claimant in making his application to amend. It is not a previous statement that he wished to complaint that the handling of the DSAR was discriminatory. 12. The Tribunal will not presume that everything the claimant states was wrong or badly handled was an unlawful discriminatory act for which he wishes to bring a claim. Hence the focus on the written application to amend made on the direction of Judge Codd which has now been considered in full. Approved by
The Law
[1]The victimization complaint has no reasonable prospects of success insofar as the acts complained of are alleged to have occurred prior to 1 December 2023.[2]List of Issues paragraphs 20.1, 20.2, 20.3 are struck out on the basis that they have no reasonable prospects of success.[3]List of Issues paragraph 11.1 is dismissed because it has been determined as a preliminary issue that the claimant was not disabled by reason of depression and anxiety at the relevant time.[4]Other than as set out in paragraphs 1 & 2 of this reserved judgment, the respondent’s application to strike out particular complaints is refused.[1]The Employment Tribunals Procedure Rules 2024 include the following: “38.— Striking out(1) The Tribunal may, on its own initiative or on the application of a party, strike out all or part of a claim, response or reply on any of the following grounds— (a) that it is scandalous or vexatious or has no reasonable prospect of success; (b) that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious; (c) for non-compliance with any of these Rules or with an order of the Tribunal; (d) that it has not been actively pursued; (e) that the Tribunal considers that it is no longer possible to have a fair hearing in respect of the claim or response (or the part to be struck out).(2) A claim, response or reply may not be struck out unless the party in question has been given a reasonable opportunity to make representations, either in writing or, if requested by the party, at a hearing. …”[2]The power to strike out a claim on the ground that it has no reasonable prospect of success is a power to be exercised sparingly, particularly where there are allegations of discrimination and unlawful detriment on grounds such as protected disclosure or health and safety grounds.[3]In the case of Anyanwu v South Bank University [2001] IRLR 305 HL, the House of Lords emphasised that in discrimination claims the power should only be used in the plainest and most obvious of cases. It is generally not appropriate to strike out a claim where the central facts are in dispute because discrimination cases are so fact sensitive. The same point was made by the Court of Appeal in the protected disclosure case of Ezsias v N Glamorgan NHS Trust [2007] I.C.R. 1126 CA where Maurice Kay LJ said this at paragraph 29 “It seems to me that on any basis there is a crucial core of disputed facts in this case that is not susceptible to determination otherwise than by hearing and evaluating the evidence. It was an error of law for the employment tribunal to decide otherwise. In essence that is what Elias J held. I do not consider that he put an unwarranted gloss on the words “no reasonable prospect of success”. It would only be in an exceptional case that an application to an employment tribunal will be struck out as having no reasonable prospect of success when the central facts are in dispute. An example might be where the facts sought to be established by the claimant were totally and inexplicably inconsistent with the undisputed contemporaneous documentation. The present case does not approach that level.”[4]Furthermore, there is a public interest in ensuring that allegations of discrimination are heard and determined after appropriate investigation of the circumstances because of the great scourge that discrimination, whether on grounds of race or other protected characteristic, represents to society. It is relevant to bear in mind that s.136 of the Equality Act 2010 provides for a shifting burden of proof. Therefore at this preliminary stage the question is whether the claimant has no reasonable prospect of establishing the essential elements of his claim, taking into account the burden of proof in respect of each of those elements and bearing in mind the danger of reaching such a conclusion where the full evidence has not been heard and explore: see Underhill LJ in Ahir v British Airways Plc [2017] EWCA Civ 1392 para.16.[5]That said, where it is plain that a discrimination claim has no reasonable prospects of success (interpreting that high hurdle in a way that is generous to the claimant), then the tribunal does have and, in a plain and obvious case, may use the power to strike out the claim so that the respondent and the tribunal system are not required to spend any more resources on a claim which is bound to fail: Anyanwu para.39 per Lord Hope. Such an example is given in the quotation from Ezsias.[6]This reserved judgment should be read together with the Record of Hearing and Case Summary which set out a summary of the events of the hearing and the documents which I had available to me. I refer to but do not repeat what I said there. These reasons are merely to explain my judgment to strike out a limited number of complaints out of the extensive application to strike out elements of the claimant’s claim. In summary, I was not satisfied that the high test of no reasonable prospects of success was satisfied in respect of any of the other particular parts of the claim which were the subject of the application and do not repeat what I said in my Case Summary about why I concluded that the test was not met.[7]In Section 6 of their written submissions on strike out, the respondent argued that certain alleged victimisation detriments pre-dated the alleged protected acts and there was consequently no reasonable prospect of them being found to have been done because of the alleged protected acts. This was said to apply to 6 alleged detriments (using the paragraph numbers from Employment Judge Codd’s List of Issues RB page 149 – 150): “20.1. Initiating and/or intensifying covert/excessive monitoring (manual DM checks Aug 2023+, software Nov 2023+, CCTV 2023) 20.2. Unfair denial/obstruction of 2023 disciplinary appeal right/process (Nov 2023) 20.3. Withholding opportunities from C, isolating them from clients (2023) 20.4. Blocking access to all work platforms without notice (22 Jan 2024) 20.5. Inviting C to the ‘informal check-in’ meeting under false pretences, deliberately obscuring the nature / purpose of that meeting (Jan 2024). 20.6. Giving unreasonable notice (<30 mins) for a conduct meeting, and pre- meditatively obscuring its ‘investigation’ identity (30 Jan 2024).”[8]The argument that these alleged detriments pre-dated any protected act was predicated in part on another argument that LOI 19.1 should be struck out on the basis that there was no reasonable prospect of the claimant showing by an allegation that the respondent’s solicitors were on notice of his intention “to initiate proceedings or a complaint about his employment” that the respondent believed that he intended to carry out a protected act within the meaning of s.27 Equality Act 2010 (see section 5 of their written submissions).[9]I reject that argument. The claimant plausibly argued that, in the context of detailed correspondence, and other procedures which were going on at the time, he had better than no reasonable prospects of showing that a statement that he was seeking legal advice – particularly given his short service –would cause the respondent to believe that he intended to complain about discrimination. I have decided that LOI 19.1 should not be struck out.[10]Nevertheless, the earliest date for knowledge of the intention to complain of discrimination in the List of Issues is 1 December 2023. LOI 20.1 to 20.3 all predate that date.[11]The claimant’s answer to this argument was that, prior to disclosure, it was not possible to say there were no or little reasonable prospects of him successfully arguing that he was victimised even in respect of alleged detriments which pre-date any of his pleaded protected acts. This seems to me to be tantamount to arguing that I should accept there are better than no reasonable prospects of success because something may turn up in disclosure which shows that the respondent anticipated that the claimant would bring discrimination complaints prior to the acts alleged to be victimisation.[12]The claimant argues that a history of precluding access to evidence and limiting response to the Subject Access Request causes him to suspect that there is relevant evidence available. This is speculative. This is not the right time or type of hearing for me to decide whether or not there has been anything improper about the way the respondent has handled requests. However, it is clear that disclosure of documents has been contentious – to put it neutrally. Nevertheless, in order to have been than no reasonable prospects of these particular complaints succeeding, the claimant would have to argue that as far back as August 2023 the respondent believed that he would complain about discrimination. This is not presently how the claim is framed and appears fanciful.[13]The highest the claimant’s argument came in oral submissions was that he stated that within the disciplinary process and appeal starting 23 October 2023, representatives of the respondent stated “you just know he’s looking to sue” – he asked, rhetorically, what else could it be but discrimination?[14]Again, the pleaded case on when the respondent believed that the claimant would complain of discrimination is 1 December 2023. There are no reasonable prospects of these three complaints succeeding on the basis of the claim as presently pleaded taking the pleaded case at its highest because it is contrary to its internal chronology. There has just been an extensive application to amend which has been considered and determined over the course of two preliminary hearings. Prior to today the claimant did not seek to argue that the respondent believed he would do a protected act prior to 1 December 2023 and that that was the reason why LOI 20.1 to 20.6 were acts of victimisation. Approved by: