Mr R Dotse v UK Atomic Energy Authority: 3306035/2023 and 3301902/2024
EMPLOYMENT TRIBUNALS
Case No 3306035/2023, 3301902/2024
Between
Mr R DotseClaimantUK Atomic Energy AuthorityRespondent
Before
Employment Judge KingDate 11 October 2024
JUDGMENT
The claim of race discrimination is struck out.
REASONS
[1]By a Order dated 31 August 2023 and sent to the claimant on 7 December 2023 the Tribunal gave the claimant an opportunity to make representations or to request a hearing, as to why the claims of race discrimination and disability discrimination should not be struck out because they have no reasonable prospect of success.[2]The claimant has failed to make representations in writing, or has failed to make any sufficient representations, why this should not be done or to request a hearing. The claim of race discrimination is therefore struck out.[3]The claimant is to provide further information in respect of the disability discrimination which has been requested separately.[1]At a primary hearing on 24 June 2024 Employment Judge King ordered that there will be a preliminary hearing to consider whether the claimant was a disabled person within the meaning of section of the Equality Act 2010. In order to prepare for the hearing Judge King made a number of directions these included that:(1) The claimant must by 5 August 2024 serve on the respondent copies of any medical notes, reports, occupational health assessments and other evidence in his possession and or control relevant the issue whether the claimant was at all relevant times a disabled person under the Equality Act.(2) The claimant must by 5 September 2024 provide the respondent with the witness statement (or statements): identifying the “physical or mental impairment(s)”, in accordance with Equality Act 2010, section 6, he relies on in relation to the issue of disability stating in relation to each impairment relied on, between which dates it is alleged the claimant was a disabled person because of that impairment; dealing, by specific reference to schedule 1 to the Equality Act 2010 and any relevant provision of any statutory guidance or Code of Practise, with the effect of the alleged disability (or disabilities) on the ability of the claimant to carry out normal day-to-day activities. The claimant was referred to the presidential guidance issued on general case management that relates to disability.[2]Intending to comply with that order the claimant provided an impact statement. The statement is dated 4 September 2024 and was provided to the respondent in accordance with the order on 5 September 2024. In that statement the claimant says that he suffered from impairments of chronic stress and anxiety, clinical depression, and stammering.[3]The claimant goes on to list the physical outcomes resulting from the set conditions, these included, sleepless nights, recurrent headaches, loss of appetite, less eloquence or fluency, and stress induced alopecia.[4]The claimant’s statement goes on to set out substantial and long term adverse effects. The claimant says that “the conditions significantly impacted my daily life and work performance” and then says that the impacts included, “(a) difficulty concentrating on tasks for extended periods (b) impaired ability to interact with colleagues or socialise outside work (c) reduced capacity to handle work related pressures (d) disrupted sleep patterns affecting my daytime functioning (e) physical discomfort impacting work performance (f) challenges in commuting due to anxiety in public spaces particularly when I had lost all facial hair due to stress induced alopecia.”[5]The claimant then sets out a section headed impact on work. In which he said “The impairments significantly affected my ability to perform my duties as an engineer, particularly in:(a) meeting deadlines due to concentration difficulties(b) participating in team meetings and collaborative projects(c) coping with the standard pressures of the work environment(d) maintaining regular attendance due to physical symptoms.”[6]The claimant also has a section headed the “Public Sector Equality Duty”. The claimant sets out a section on failure to make reasonable adjustments. The claimant sets out a section on constructive dismissal.[7]The final section of the statement deals with “Ongoing Impact”. In that section the claimant stated: “The actions and omissions off the UKAEA had a profound and continuing impact on me. These include:(a) deterioration of my mental and physical well-being,(b) loss of career progression opportunities,(c) significant financial hardship and loss of pension rights,(d) reduced prospects for future employment,(e) ongoing medical expenses for treatment. After the poor treatment at UKAEA ,I still find it difficult to trust others in professional settings.”[8]Outside the scope of the order the claimant provided a further statement to the respondent on 3 October 2024. The full text of that statement is as follows: “Impacts of impairments : Stress/anxiety/depression[1]I had difficulty falling asleep leading to fatigue at relevant times. I had low energy at relevant times I lost interest in listening to podcasts or radio[4]I had loss of appetite. I struggled to eat without medication[5]I lost interest in daily activities that were once enjoyable, such as reading for pleasure and computer games, watching documentaries and difficulty with cooking .[6]I had challenges as a parent leading to a strain in my family.[7]I found daily commutes and sitting for long periods was challenging. I found it difficult to cope with uncertainty.[9]I had stress and anxiety which impeded my effectiveness at work.[10]I had increased difficulty coping with stressors, leading to heightened levels of anxiety and difficulty concentrating on tasks daily.[11]I lacked of interest in routines that I previously enjoyed, such regular walking and exercise for general fitness.[12]I felt reluctance to seek professional help due to feelings of shame or hopelessness. Stammer/speech:[13]While most of the above could be well controlled in difficult times with medication, I have difficulty speaking when distressed and continue to feel anxiety and embarrassment in large meetings or social settings because of my stammering which can not be cured. Back pain:[14]I found daily commutes and sitting for long periods was challenging due to back pain.[15]I had to sleep on a firm mattress or on the floor to reduce pain[16]I found standing for long periods such ironing, cooking etc was strenuous for me during flare ups.[17]I regularly found carrying objects like laptop in back pack , groceries, picking up children or lifting objects exacerbated my back pain.” 9. The respondent objected to the statement stating that the statement widens the scope of the claimant’s allegation about disability and has been provided in circumstances falling outside what was directed by Judge King. The respondent had understood that the claimant was relying on “work-related stress and anxiety” (p79). There is no reference to stammering or back pain. 10. In relation to back pain it is pointed out that in his claim form presented on 6 June 2023 the claimant does not identify the nature of his impairment. In answer to a notice sent to the claim on the 7 December 2023 stating that the employment tribunal was considering striking out the claimant’s claim of disability discrimination in part because “no information is given of the claimant’s disability”, the claimant replied on 27 December 2023 that: “I have suffered work related stress and anxiety before February 2022. I believe the this (sic) is a disability for which UKAEA failed to make reasonable adjustments.”(p14) 11. The claimant’s second claim was presented on 13 February 2024. In that claim the claimant refers to “stress anxiety and extreme hair loss” and “stress an anxiety” in his grounds of complaint. 12. The order made by Judge King, which is concerned with both claims, makes clear that the impairment that the claimant was relying on is “work related stress and anxiety” (see paragraph (5) of the case management summary of 24 June 2024). 13. There is no medical evidence provided by the claimant that relates to back pain. The information provided by the claimant does not comply with the order made by Judge King which required that the claimant provide medical evidence and further that the claimant provide information identifying not only the physical or mental impairment(s) but also between which dates it is alleged the claimant was a disabled person because of that impairment and the effect on the ability of the claimant to carry out normal day-to-day activities. The respondent contends that the detail provided makes it impossible to ascertain whether the disability was long term or, due to the scant detail, how serious any impairment is so as to determine that it is more than minor or trivial. 14. The claimant was not until 3 October 2024 relying on back pain as a relevant impairment for the purposes of the disability complaint. Prior to that date the claimant was not complaining in this case that he was disabled because of back pain. That is in my view a new contention. 15. The claimant has not specifically made an application to amend the grounds of his complaint to widen the claim to include a complaint that his disability is related to back pain. However, I have treated it as such in considering the matters before me. 16. The claimant has not stated until 3 October 2024 that his stammering is a matter relied on as a disability in this case. In his claim forms there is no mention of stammering. The claimant’s complaint about stammering I understand to relate to his performance review in 2022 when the claimant was that he needs to “learn how to communicate”, this was not the complaint that is contained in either his first claim or the second claim. There is no specific application to amend the claim to include a complaint about stammering as a disability, I have however treated it as such. 17. The approach that I have taken is first to consider whether the claimant is a disabled person by reason of any of his alleged impairments and then to consider whether in respect of back pain and stammering, if they are disabilities within the meaning of section 6 Equality Act 2010, whether I ought to amend the claim to include complaints of disability discrimination relating to those conditions. Was the claimant a disabled person at the relevant time?[18]The relevant time appears to be from about March 2022 until July 2023. The claimant makes reference to matters causing him to have time off work in March 2022, a flexible working request in November 2022 and also in February 2003, being shouted at between May 2022 and June 2023, a matter about health and safety in February 2023, a performance review and decision to place him on a performance improvement plan in March/April 2023 and the claimant’s resignation is an alleged constructive dismissal in July 2023. The relevant time appears to be from about March 2022 until July 2023.[19]The claimant has not provided any medical evidence relating to back pain.[20]The claimant has alleged that he suffers back pain but has provided scant information, he states that the daily commute is “challenging due to back pain”, that “I sleep on a firm mattress or on the floor”, standing or cooking for long periods is “strenuous for me during flare ups” and “carrying objects like laptop in back pack , groceries, picking up children or lifting objects exacerbated my back pain”.[21]The claimant’s evidence is untested in the sense that the claimant produced it at the last minute and the respondent was unable to address it at the hearing today. I cannot know whether the respondent could have been in a position to challenge this evidence if it had been aware of it with sufficient notice to enable them to address the specific contentions made by the claimant.[22]On the assumption that the statements are correct, I note that they are very general they are tantalise in that they start to give an impression of the effect that the claimant is at times adversely affected by back pain, but withhold a fuller picture so it is not clear how serious this condition is.[23]There is no indication how long this has been an issue for the claimant.[24]The claimant has to shows that he has a disability: if he has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. In respect of back pain I am not satisfied that on the evidence provided to me that the claimant has produced evidence from which I can conclude that the claimant has had an impairment that has a substantial and long term effect.[25]I am satisfied that the claimant is disabled person within the meaning of section 6 Equality Act 2010 in respect of his stammering. The claimant’s condition is life long. The effect of the claimant’s condition is that when he has “difficulty speaking when distressed and continue to feel anxiety and embarrassment in large meetings or social settings”. The fact that the claimant is affected by feelings of anxiety and embarrassment in social settings is in my view a matter that is a substantial adverse effect on normal day to day activities.[26]The claimant has not produced evidence that shows that he is suffering from clinical depression. In the claimant’s GP notes there is a reference to depressed mood, there is reference to work related stress, there is reference to anxiety, there is reference to hair loss. The claimant was prescribed anti-depressant medication which was to continue for a period of 6 months. A symptom of the claimant’s anxiety was hair loss.[27]The claimant’s disclosure of his medical records has been selective it is not comprehensive. There clear are gaps in the disclosure.[28]Taking the claimant’s medical records and the claimant’s fit notes from his GP it is not possible to conclude that the claimant was suffering from work related stress and anxiety that amounted to an impairment that had an adverse effect of his ability to carry out normal day to day activities for 12 months. The medical evidence does not indicate an underlying medical condition that it is long term, that is lasted for 12 months or likely to last for 12 months. Rather the evidence is consistent with a person who has from time to time had difficulties at work and when those times occur has an adverse reaction to it resulting in low mood and anxiety.[29]The burden of proof lies with the claimant to show that he has a disability, the claimant’s personal evidence in this case, dealing with the effect on his ability to carry out normal day to day activities is lacking the detail that allows me to conclude that the effect of any mental impairment on the claimant has had a substantial and long term effect on the claimant’s ability to carry out normal day to day activities. I am not satisfied that the claimant has shown that he is a disabled person by reason of chronic anxiety and clinical depression.[30]As to the amendment to include a complaint about stammering my conclusion is that I should not allow such an amendment. The stammering issue has not been mentioned at all in the 2 claim forms. It has been explained by the claimant as arising because the claimant was told in his 2022 performance review that he has to learn how to communicate. This complaint is not articulated at all in the claim forms, indeed the claimant has not set out a written basis on which he would seek to make such a claim. The allegation as I set out here is something teased out during the preliminary hearing to consider the disability issue. Without it the stammering disability simply does not crystallise into any complaint before the employment tribunal.[31]The claimant did not make a specific application to amend the claim to include such an allegation. The claimant treated it as part and parcel of the allegations already before the employment tribunal, however, there is currently no such complaint.[32]I am satisfied that in the stated circumstances that I cannot redraft the claim for the claimant in a way that has not previously been made by him. There is no specific application to amend the claim, but even if, as I do, I treat the way that the case has been presented as including an application to amend it is not in the interests of justice to allow the amendment because:(1) it involves an entirely new allegation based on a different disability to the that complained about;(2) the factual circumstances of the purported complaint are long out of time even at the date that the claims were originally presented;(3) the allegation is making an entirely new dispute between the parties that does not emerge out of the factual circumstances which have given rise to the two cases that are before the employment tribunal. It would thus mean an entirely different line of factual enquiry by the parties to present the case to the employment tribunal. This would significantly prejudice the respondent who would now have to deal with what is an entirely new claim that would have been out of time even if set out in the original claim presented on 6 June 2023.[33]The claimant’s case of disability discrimination must therefore be dismissed because the claimant is not a disabled person.