N Mekheimar v J Kenyon and C Kenyon T/a The Children's Day Nursery and Others: 3310718/2024

EMPLOYMENT TRIBUNALS

Case No 3310718/2024

Between

N MekheimarClaimant

J Kenyon and C Kenyon T/a The Children's Day Nursery and OthersRespondent

Before

Employment Judge A.M.S. Green

Ms S Dervin (instructed by Counsel) for claimant

Mr L Pike (instructed by Solicitor) for respondent

Date 30 May 2025

REASONS

[1]This is the Tribunal's reserved judgment following a preliminary hearing held in public to determine whether the claimant was a disabled person within the meaning of section 6 of the Equality Act 2010 ("EqA 2010") during the period relevant to her claims, namely 25 March 2024 to 24 June 2024.

[2]The claimant brings claims of disability discrimination, harassment, whistleblowing detriment, and unfair dismissal. The Tribunal was asked to determine as a preliminary issue whether the claimant was disabled within the statutory definition during the material time.

[3]The Tribunal heard oral evidence from the claimant and from two witnesses who are also respondents: Mr John Kenyon and Mrs Claire Kenyon. All witnesses affirmed their evidence.

[4]The Tribunal received written and heard oral submissions from both representatives, which it has taken into account in reaching its conclusions. The fact that they are not rehearsed in full does not mean they were not considered. Legal Framework

[5]Under section 6(1) of the EqA 2010, a person has a disability if:a. They have a physical or mental impairment; and

b. The impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

[6]Schedule 1 to the EqA 2010 provides further guidance:a. Paragraph 2(1): "Substantial" means more than minor or trivial.

b. Paragraph 2(2): "Long-term" means it has lasted at least 12 months, is likely to last 12 months, or is likely to recur.

c. Paragraph 5: Where treatment or coping mechanisms mitigate symptoms, the assessment must be made as if those measures were not applied.

[7]The burden of proof lies on the claimant: McDougall v Richmond Adult Community College

[2008] IRLR 227

. The standard of proof is on a balance of probabilities.

[8]The Tribunal also had regard to the four-limb test established in Goodwin v Patent Office

[1999] ICR 302

:a. Does the claimant have a mental or physical impairment?

b. Does that impairment adversely affect normal day-to-day activities?

c. Is that effect substantial?

d. Is that effect long-term?

[9]Medical evidence is not a statutory requirement (J v DLA Piper UK LLP

[2010] ICR 1052

), but its absence may affect the weight of the claimant's case (Igweike v TSB Bank plc

[2020] IRLR 267

Findings of Fact

[10]The claimant was employed as a Nursery Manager from July 2017 until her dismissal in June 2024.

[11]Mr and Mrs Kenyon own and run The Children’s Garden Day Nursery as a partnership.

[12]Mr Kenyon was the claimant’s line manager throughout the relevant period. As Managing Partner, he had direct responsibility for staff oversight, performance management, and disciplinary matters within the nursery. He conducted the claimant’s annual appraisals in 2021, 2022, and 2023.

[13]Mrs Kenyon held a more senior and strategic position, responsible for curriculum development and educational standards across the respondent’s settings. While she nominally had oversight of the nursery, her presence at the claimant’s specific workplace was limited, particularly between 2020 and 2023.

[14]In October 2019, the claimant attended a GP surgery appointment and was prescribed Sertraline by a nurse practitioner for anxiety, low mood, and stress, associated with the onset of the menopause and workplace pressures.

[15]She remained on Sertraline at either 50mg or 100mg dosage continuously from October 2019 until the date of dismissal. She continues to take Sertraline.

[16]She was signed off work for approximately one month in late 2019 and underwent a phased return to work by January 2020.

[17]The claimant completed a medical declaration on 12 December 2019 in which she disclosed her condition, and the medication prescribed. This form was kept on her personnel file but was not reviewed or actioned by the Mr Kenyon.

[18]In annual appraisals in 2021, 2022, and 2023, the claimant confirmed that there were no changes to her 2019 health status, indicating continuity of her mental health condition (i.e. anxiety, low mood, menopausal symptoms and taking 100mg of Sertraline daily).

[19]Between 2020 and early 2024, she did not actively request adjustments or occupational health assessments. She stated that her condition was managed through a combination of medication and coping strategies, such as listmaking, structured routines, and avoiding noisy environments.

[20]The claimant gave detailed evidence of symptoms including sleep disruption, intrusive thoughts, poor concentration, fatigue, and a tendency to withdraw socially. These symptoms fluctuated but remained present, albeit mitigated by treatment.

[21]She described a fear of relapsing if medication were withdrawn and stated that she had discussed this risk with her medical practice. She chose to remain on medication continuously to avoid recurrence of the debilitating episode she experienced in 2019.

[22]The respondent's witnesses accepted that the claimant had experienced a difficult period in 2019 but considered that she had recovered fully and presented no signs of continuing impairment. They emphasised that she was an effective manager and engaged in a demanding role.

[23]Mrs Kenyon gave evidence that, based on her own experience of anxiety, the claimant did not present as someone impaired by such a condition. However, Mrs Kenyon was largely absent from the workplace between 2020 and 2023 and could not comment on the claimant's daily functioning.

[24]There was no occupational health referral and no external expert evidence before the Tribunal.

[25]Having considered the evidence in the round, the Tribunal preferred the claimant's account to that of the respondent’s witnesses. Her evidence was detailed, internally consistent, and supported by documentary records including medication history, appraisal notes, and medical declarations. She gave a clear and candid description of her symptoms and coping mechanisms, without exaggeration or contradiction under cross-examination. In contrast, Mr Kenyon’s evidence was focused on the claimant’s external presentation and work performance, and did not engage with the statutory test, which requires consideration of how the claimant would function without mitigating measures. Mrs Kenyon’s evidence was of limited weight given her lack of contact with the claimant over the relevant period and her reliance on personal analogy rather than objective observation. Neither witness provided medical expertise or countervailing evidence to rebut the claimant’s assertions. I concluded that the claimant’s account was the most reliable source of evidence on the nature and effect of her impairment. Discussion Mental impairment

Discussion

[26]The claimant has been prescribed Sertraline since October 2019 and provided a detailed account of ongoing symptoms. The Tribunal accepts that she has a mental impairment within the meaning of section 6(1)(a). The impairment is anxiety. Effect on Day-to-Day Activities

[27]The claimant’s evidence in her impact statement of forgetfulness, emotional regulation difficulties, poor concentration, and disturbed sleep was credible. She explained how these symptoms manifested in daily life: for example, forgetting routine tasks such as making and drinking tea, needing detailed written lists to manage her responsibilities, and struggling to focus during conversations or administrative work. Emotional regulation issues caused heightened irritability, tearfulness, and a reluctance to engage in social settings unless heavily managed. Sleep disruption resulted in chronic fatigue, which compounded her difficulty in managing a structured day. While these effects were often mitigated through coping mechanisms and medication, the Tribunal accepts that they represented genuine limitations which interfered with the claimant’s ability to function effectively in unstructured, overstimulating, or unfamiliar environments. These are all normal day-to-day activities within the meaning of the statutory guidance.

[28]While the respondent focused on the claimant's ability to work, study, and travel, the Tribunal accepts that these activities were only possible through the combined effect of medication and structured coping strategies. The evidence shows that the claimant relied on these supports daily to manage tasks which would otherwise become overwhelming. Her performance as a nursery manager, engagement in a master’s programme, and care for her mother, who had suffered a stroke in 2018, all involved planning, preparation, and the implementation of compensatory techniques. She described, for example, needing to pause and resume tasks such as staff rotas due to cognitive fatigue; using tick-lists to avoid memory lapses; and selectively engaging in professional development only when accompanied by trusted colleagues. Her testimony was that she could maintain a façade of normal functioning, but this required continual effort and conscious self-management. In my view, these facts do not negate the existence of a substantial impairment, rather, they demonstrate how it was masked. The fact that she managed these responsibilities should not be equated with an absence of limitation, particularly when her coping strategies are considered essential and protective rather than incidental.

[29]The proper comparator is how the claimant would function without those mitigating measures: see Schedule 1, paragraph 5. The claimant’s 2019 episode was characterised by functional collapse, social withdrawal, and inability to work. She described remaining indoors for extended periods, experiencing a persistent sense of dread, disrupted sleep, emotional numbness, and an inability to concentrate on or complete even simple domestic tasks. She avoided interaction with others, became increasingly reclusive, and felt unable to cope with the basic structure of a working day. The prescription of Sertraline and her subsequent improvement are consistent with a serious mental impairment which responded to ongoing treatment. Given that she has not ceased that treatment in the intervening years and actively fears relapses, the Tribunal finds it more likely than not that without medication and coping strategies, a recurrence of these debilitating symptoms would occur. This prospect is not hypothetical: it is grounded in her lived experience and the nature of the impairment as she described it, which was not credibly challenged in cross-examination. The Tribunal accepts that the functional impairments witnessed in 2019 are representative of what would likely happen if treatment were discontinued. This reinforces my conclusion that the claimant’s condition has a substantial adverse effect within the meaning of the EqA 2010. Substantial Effect

[30]The Tribunal finds that the effects of the impairment, considered without treatment, are more than minor or trivial. The claimant’s account of her functional limitations during the 2019 episode, including being unable to work, suffering severe emotional distress, and retreating from basic social and occupational interaction, provide compelling evidence of a condition that materially restricts day-to-day activity when untreated. These limitations go significantly beyond the level of discomfort or inconvenience. Her continued prescription for a substantial dosage of Sertraline over several years, and her credible fear of recurrence, support the conclusion that the underlying impairment, if unmedicated, would produce a level of disruption that clearly meets the statutory threshold for "substantial". I am satisfied that the medical intervention does not eliminate the underlying risk but instead masks it.

[31]The Tribunal does not find that the absence of regular GP appointments or medical reviews undermines this conclusion, given the chronic nature of anxiety and the evidence of ongoing prescription. It is not unusual for a mental health condition to be managed in primary care with stable medication, and this management strategy does not imply that the underlying impairment has been resolved. Indeed, the claimant’s continuation on medication is itself consistent with her position that the condition remains present and would likely reassert itself if treatment ceased.

[32]I do not find that the absence of regular GP appointments or medical reviews undermines this conclusion, given the chronic nature of anxiety and the evidence of ongoing prescription. It is not unusual for a mental health condition to be managed in primary care with stable medication, and this management strategy does not imply that the underlying impairment has been resolved. Indeed, the claimant’s continuation on medication is itself consistent with her position that the condition remains present and would likely reassert itself if treatment ceased. Long-Term Effect

[33]The Tribunal finds that the claimant's mental impairment has had a long-term effect. The relevant period began in October 2019 and continued without any significant interruption through to her dismissal in June 2024, a period of over four and a half years. There is no evidence of full remission or of any point at which the claimant was medication-free or symptom-free for a sustained period.

[34]The claimant’s medical history is consistent and uncontroverted: she has remained on Sertraline throughout, and at no point during the five-year period did she discontinue treatment or report that she no longer experienced symptoms. Her oral evidence, which the Tribunal found to be credible and consistent, confirmed that she continues to experience daily effects of anxiety, even while medicated. The Tribunal also notes that in each of her annual appraisals from 2021 to 2023, the claimant indicated that there were no changes to her health status from her December 2019 declaration, further reinforcing the picture of a continuing condition.

[35]The Tribunal rejects the respondent’s argument that the 2019 episode was a one-off or transient reaction to external stressors, including the onset of menopause. While situational factors may have contributed to its onset, the condition has not resolved. There is no medical or factual evidence to support the contention that the impairment was episodic. The claimant’s continuing need for treatment, coupled with the risk of deterioration if medication were withdrawn, satisfies the statutory requirement that the condition must be longterm in nature. I am satisfied that the claimant’s impairment is one which has lasted at least 12 months and continues to do so.

Conclusion

[36]For the reasons set out above, the Tribunal finds that the claimant:a. Has a mental impairment;

b. That impairment has a substantial adverse effect on her ability to carry out normal day-to-day activities, when considered without the benefit of medication and coping mechanisms;

c. That adverse effect is long-term, having persisted for more than four years.

[37]Accordingly, the claimant is a disabled person within the meaning of section 6 of the EqA 2010. Approved By