Employment Judge AnnandIn person for claimantDate 3 July 2025
JUDGMENT
[1]The complaints of direct disability discrimination and discrimination arising from disability were not presented within the applicable time limit, but it is just and equitable to extend the time limit.[2]The Claimant was a disabled person as defined by section 6 of the Equality Act 2010 by virtue of suffering from anxiety and depression, from July 2022 and throughout the relevant period of the Claimant’s claims (August 2022 to mid-February 2023).[3]The complaints of direct disability discrimination and discrimination arising from disability can therefore proceed.[4]The Claimant is a disabled person as defined by section 6 of the Equality Act 2010 by virtue of suffering from colitis, but from September 2023 onwards, which is after the relevant period of the Claimant’s claims. Approved by: 10.2 Judgment - rule 61 February Case No: 3311126/2023
REASONS
An oral judgment and reasons, regarding disability, having been given to the parties at the hearing on 13 March 2025, and written reasons having been requested by the Respondent on 20 March 2025 in accordance with Rule 60 of the Employment Tribunals Rules of Procedure 2024, the following reasons are provided:
Introduction
[1]A preliminary hearing was listed for 28 January 2025 to determine two issues. The first related to whether it would be just and equitable to extend time to allow the Claimant to proceed with her claims of direct disability discrimination and discrimination arising from disability despite the fact that the complaints were brought out of time. The second was to decide if the Claimant was disabled within the definition set out in section 6 of the Equality Act 2010 over the relevant period of her claim.[2]At a case management preliminary hearing held by Employment Judge Talbot-Ponsonby on 5 July 2024, a final hearing was listed for 6 to 9 May 2025 at Reading Employment Tribunal. Employment Judge TalbotPonsonby included a Case Summary and a List of Issues in his Case Management Order. It is clear from the List of Issues that the Claimant is bringing complaints about matters which occurred between August 2022 and February 2023.[3]At the preliminary hearing on 28 January 2025, I was provided with a witness statement by the Claimant and a witness statement from her mother. I was provided with an agreed bundle of documents. The Claimant was cross examined by Mrs Kaur-Singh for the Respondent in relation to the issue of whether it would be just and equitable to extend time. The parties then made submissions. I considered by decision and decided it would be just and equitable to extend time. Oral reasons were given at the preliminary hearing for that decision.[4]The Claimant then gave evidence again and was cross examined by Mrs Kaur-Singh for the Respondent in relation to the issue of whether the Claimant was disabled, under the definition set out in section 6 of the Equality Act 2010, over the relevant period of her claim. There was not time for me to deliberate and give a further oral decision on the day of the hearing, and I reserved my decision.[5]On 4 March 2025, I asked that this matter be listed for a further preliminary hearing to give an oral judgment to the parties on disability. This was because as I was writing up the reserved judgment, it became apparent that the Claimant’s evidence contained some highly personal medical information, and as the Claimant is not represented she may not have been aware of the fact that judgments are public and are published online and she is unlikely to have been aware of Rule 49 of the Employment Tribunal Rule which allows the Tribunal to make an order with a view to preventing or restricting the public disclosure of any aspect of proceedings. A further preliminary hearing was listed for 13 March 2025, so that I could give an oral judgment and also so that a discussion could be had about whether it was necessary to make any Orders until Rule 49. I am grateful to the parties for making themselves available at short notice.[6]Following the hearing on 13 March 2025, the Claimant applied for an anonymisation order, which I granted on the basis that the Claimant’s medical information, as set out below, contains some personal and potentially embarrassing details of a highly sensitive nature. No objection was received from the Respondents, and therefore I considered it was in the interests of justice to make an anonymisation order in this case.[7]On 20 March 2025, the Respondent requested written reasons for the Tribunal’s decision regarding disability.
Findings of fact
[8]It is the Claimant’s position that she is disabled by virtue of suffering from depression, anxiety and colitis.[9]In the Claimant’s oral evidence, she said that in 2018 she started to experience symptoms of depression. This was depression that she suffered after the birth of her child. The Claimant’s medical records show that in September 2019, the Claimant was diagnosed with anxiety with depression by her GP (p128) and in December 2019 she was diagnosed with depression by her GP (p122). The Claimant only had a full print out of her GP records from September 2020 to 31 March 2023 but the fact that she was diagnosed with anxiety and depression in 2019 is recorded in other medical records which refer to these diagnoses in the history of significant events.[10]In 2019, the Claimant was prescribed medication, Sertraline, and talking therapies. The Claimant tried Sertraline but stopped taking it because it did not work well for her. She recovered sufficiently after a period of receiving treatment.[11]The Claimant was employed by the First Respondent on 7 December 2021. She was employed as an Administrative Assistant. The Claimant’s Line Manager was the Third Respondent.[12]In June 2022, the Claimant started to experience symptoms of stress and anxiety. The Claimant’s case is that this was related to working for the Respondent.[13]The Claimant explained that when she experienced symptoms of anxiety, she would have a racing heartbeat and feel constantly on edge. She experienced chest pains and feelings of breathlessness. She explained she would find herself ruminating, shaking, and suffering with panic attacks. When she had a panic attack she would start sweating, feel very tense, and start crying or sobbing.[14]In the same month, June 2022, the Claimant started to experience feelings of low mood, poor sleep, poor concentration and feelings of helplessness, which were the same as the symptoms of depression she had suffered previously.[15]The Claimant says on 29 June 2022, she telephoned the First Respondent’s Director, the Second Respondent. The Claimant says that she told him that she had to go off work sick and explained there were times when she felt paralysed by the anxiety. She said she could not sleep or eat properly.[16]On 12 July 2022, the Claimant says she emailed the Second Respondent again stating that she recently she had felt so low she was barely functioning, felt paralysed by anxiety, and could not eat or sleep properly.[17]In the Claimant’s disability impact statement, she set out that she was assigned and treated by a Mental Health Nurse from the Wokingham Medical Centre, who kept in close contact with her in July, August and September 2022. Over this period, the Claimant had regular phone calls and face to face assessments with the Mental Health Nurse. The Claimant was offered medication again, but did not want to try it again having had a negative experience with Sertraline previously.[18]On 25 July 2022, the Claimant raised a grievance.[19]The Claimant says in August 2022 she was asked to attend meetings in the office in person, but she says she was not able to this because she felt extremely anxious when she thought about going into the office. The Claimant says she emailed the Third Respondent to explain she could not attend as it would be detrimental to her mental health.[20]On 22 August 2022, the Claimant went off work sick. The Claimant says she asked for counselling and Occupational Health support on 23 August 2022.[21]On 24 August 2022, the Claimant says she was sent an email inviting her to a disciplinary hearing because she had not attended a sales meeting. The Claimant’s evidence is that she was so distressed, she called her Mental Health Nurse who insisted upon seeing her and signed her off for a week. The Respondents accept that when the Claimant was asked to attend sales meetings in the second half of August 2022, she refused on the basis it would be detrimental to her mental health. It is recorded in the Claimant’s GP records that the Claimant reported to the Mental Health Nurse that she was suffering from panic attacks (p89).[22]The Claimant says on 25 August 2022, she emailed the Second Respondent stating her mental health had seriously declined.[23]On 4 September 2022, the Claimant was signed off work by her GP with a stress related problem.[24]On 12 September 2022, the Claimant was signed off work by her GP with a stress related problem.[25]The Claimant’s evidence to the Tribunal was that she felt very low, anxious, and upset every day from June to September 2022, but that from September 2022, she also began to suffer significant physical symptoms related to her digestive system.[26]On 9 September 2022, the Claimant spoke to her GP surgery because she was suffering with diarrhoea, vomiting and panic attacks.[27]On 12 September 2022, the Claimant spoke to her GP surgery again because she was still suffering with severe diarrhoea, vomiting, abdominal pain and blood in her urine.[28]On 21 September 2022, the Claimant was advised by her GP to go straight to hospital. She had been suffering with severe vomiting and diarrhoea for two weeks. The Claimant was signed off by her GP for two weeks on the basis that she was “awaiting investigation”.[29]At the hospital, the Claimant was diagnosed with gastroenteritis, but she was told it was also acute colitis, which is inflammation of the bowel. The Claimant was suffering with severe pain, severe vomiting, diarrhoea, and rectal bleeding. She was prescribed a range of medications including different antibiotics, anti-sickness tablets and metronidazole. She was given a CT scan and placed on a drip for dehydration.[30]Since the episode which resulted in the Claimant going to hospital in September 2022, the Claimant has suffered with recurring episodes of vomiting, diarrhoea, and stomach pain. The Claimant’s evidence is that these episodes can be triggered by anxiety. These episodes have not been as acute as the episode in September 2022. The symptoms will start will her feeling ill, then shaky, then having stomach pains, then she will experience diarrhoea and/or vomiting. It will usually take a few days to fully resolve. The Claimant says that at times, this can happen every week, or there could be a gap of two weeks to two and half weeks, but then she would suffer another episode.[31]After September 2022, the Claimant had three further appointments for her anxiety and two counselling sessions.[32]On 3 October 2022, the Claimant was signed off work by her GP with abdominal pain.[33]On 28 October 2022, the Claimant was signed off work by her GP with rectal bleeding.[34]In November 2022, the Claimant was sent an emailing asking her to attend a welfare meeting. The Claimant attended by Teams but no one from the Respondent attended.[35]On 25 November 2022, the Claimant was signed off work by her GP with rectal bleeding.[36]On 12 December 2022, the Claimant was signed off work by her GP with abdominal pain and vomiting.[37]From September 2022 to January 2023, the Claimant’s anxiety was such that she found it very difficult to leave her flat. If she had to go out, she would use the back door and would suffer from a racing heart. Over this period, the Claimant’s parents started looking after the Claimant’s son a significant amount. They would come to her flat in the morning to get him dressed, take him to pre-school, collect him, make him dinner and either put him to bed or have him to stay with them.[38]In terms of the impact on the Claimant’s ability to carry out day to day activities, as a result of suffering from anxiety, the Claimant would suffer with disrupted sleep, which would leave her feeling exhausted. The Claimant would feel nausea, often three or four times per day. When she is experiencing nausea, she cannot eat and can only have sips of water. She stopped attending the gym or seeing friends. The Claimant suffered from panic attacks, and when one started, she had to leave the situation or place where she was as quickly as possible.[39]In addition, when the Claimant is suffering from severe vomiting, which can occur multiple times in one day, and/or diarrhoea, the Claimant is very unwell and cannot work, or look after her child, or cook for herself. When she is suffering an episode, she cannot socialise and needs to be by a bathroom until the vomiting or diarrhoea has passed. As a result of the symptoms of anxiety, depression and colitis, she does not like going to new places or trying new experiences. She wishes to remain in places that are familiar to her.[40]On 3 January 2023, the Claimant was notified by email that she had been dismissed.[41]On 5 January 2023, the Claimant was signed off work by her GP with abdominal pain.[42]On 22 January 2023, the Claimant sent an email noting she was confused and asking if she had been sacked. She noted she had been sending in her sick notes. She said she had a Mental Health Nurse overseeing her health. She said she wanted to return to work but needed some support.[43]On 27 January 2023, the Claimant attended an appeal meeting with Paul Griffiths. The Claimant expressed her desire for a slow return to work. The Claimant understood that after the meeting Mr Griffiths was considering this option.[44]On 30 January 2023, the Claimant was signed off work until 10 February 2023 by her GP with abdominal pain, stress and anxiety.[45]On 17 March 2023, the Claimant was diagnosed with depression again. She was continuing to experience the feelings of low mood, poor sleep, poor concentration and feelings of helplessness that had started in June 2022.[46]On 20 March 2023, the Claimant was signed off work by her GP with a mixed anxiety and depressive disorder.[47]On 28 March 2023, the Claimant had a Work Capability Assessment. She was found to have “limited ability to work”.[48]On 10 May 2023, the Claimant contacted the Second Respondent. She noted she had not received any further information following her meeting with Mr Griffiths in January 2023. She did not receive a response so sent a further email on 28 May 2023. At this time, the Second Respondent replied stating that her employment had terminated on 3 January 2023.[49]In October 2023, the Claimant started receiving assistance from Talking Therapies.[50]In March 2024, the Claimant started seeing an NHS therapist regularly. From March to May 2024, the Claimant suffered a severe recurrence of her depressive symptoms. Her mother had to visit her each day after work to look after the Claimant’s son, put him to bed, and cook the Claimant dinner. She felt on the brink of tears constantly. At the weekends, the Claimant and her son would stay with her mother.[51]In June 2024, the Claimant was prescribed Sertraline again. She tried it again but again she found it had an adverse effect on her. The relevant law The definition of disability - Section 6 of the Equality Act
The relevant law
[52]Under section 6(1) of the Equality Act 2010 a person has a disability if that person has ‘a physical or mental impairment’ which has a ‘substantial and long-term adverse effect on [the person’s] ability to carry out normal day-today activities’. The burden of proof is on a claimant to show that he or she satisfies this definition.[53]In Goodwin v Patent Office [1999] I.C.R. 302 the EAT stated that tribunals should look at the evidence by reference to four different questions: 1) Did the claimant have a mental and/or physical impairment? 2) Did the impairment affect the claimant’s ability to carry out normal day-to-day activities? 3) Was the adverse condition substantial? 4) Was the adverse condition long term?[54]In Wigginton v Cowie and ors t/a Baxter International (A Partnership) EAT 0322/09 the EAT confirmed that these four questions should be posed sequentially and not together, although in Sullivan v Bury Street Capital Ltd [2022] IRLR 159, the Court of Appeal stressed that it does not amount to an error of law for a tribunal to omit to set out in its judgment the four conditions identified in Goodwin and deal with each methodically in turn, so long as, in substance, all relevant matters are addressed when determining whether the particular claimant was disabled within the terms of section 6(1).[55]Appendix 1 to the EHRC Employment Code states that “there is no need for a person to establish a medically diagnosed cause for their impairment. What is important to consider is the effect of the impairment, not the cause” — para 7.[56]Under paragraph 2 of Schedule 1 to the Equality Act 2010, the effect of an impairment is long-term if:(a) it has lasted for at least 12 months, or(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected. If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur. Likely to recur means that ‘it could well happen’ (para C3 of the Government’s “Guidance on matters to be taken into account in determining questions relating to the definition of disability” (“The Guidance”).[57]The Guidance states that the effects are to be treated as long term if they are likely to recur beyond 12 months after the first occurrence (see para C6). This is to ensure that the total period during which a person has an impairment with recurring effects is at least 12 months.[58]In the case of Cruickshank v VAW Motorcast Ltd [2002] ICR 729, the EAT confirmed that the time at which to assess the disability, and whether there is an impairment that has a substantial adverse effect on normal day-to-day activities, is the date of the alleged discriminatory act or acts. This is also the material time when determining whether the impairment has a long-term effect - Tesco Stores Limited v Tennant (UKEAT/0167/19/OO).[59]In All Answers Ltd v W [2021] IRLR 612, CA, the Court of Appeal held that the key question is whether, as at the time of the alleged discrimination, the effect of an impairment has lasted or is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at that date and so a tribunal is not entitled to have regard to events occurring subsequently. 60. ‘Substantial’ is defined in section 212(1) of the Equality Act as meaning “more than minor or trivial”. In Goodwin v Patent Office, the EAT held: ‘What the Act is concerned with is an impairment on the person’s ability to carry out activities. 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.” Appendix 1 to the Equality and Human Rights Commission (EHRC) Code of Practice on Employment (2011) states that account should be taken not only of evidence that a person is performing a particular activity less well but also of evidence that ‘a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment; or because of a loss of energy and motivation’— para 9.[61]Appendix 1 to the Equality and Human Rights Commission’s Code of Practice on Employment (‘the EHRC Employment Code’) states that ‘normal day-to-day activities’ are activities that are carried out by most men or women on a fairly regular and frequent basis, and gives examples such as walking, driving, typing and forming social relationships. The Guidance states that it is not possible to provide an exhaustive list of dayto-day activities. However, in general, day-to-day activities are things people do on a regular or daily basis. The examples given are shopping, reading and writing, having a conversation or using the telephone, watching television, getting washed and dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities.[62]In determining whether a person’s impairment has a substantial effect on that person’s ability to carry out normal day-to-day activities, the effects of measures such as medical treatment or corrective aids on the impairment should be ignored. If an impairment would be likely to have a substantial adverse effect but for the fact that measures are being taken to treat or correct it, it is to be treated as having that effect — paragraph 5(1), Schedule 1, Equality Act 2010. The Tribunal’s findings[63]As noted above, the allegations of discrimination relate to the period between 19 August 2022 to mid-February 2023. This is therefore the relevant period for the purposes of the Claimant’s claim. Did the Claimant have a physical or mental impairment?[64]Over the relevant period, the Claimant had a mental impairment. The Claimant first experience symptoms of depression in 2018. She was first diagnosed with anxiety with depression in September 2019. She was diagnosed with depression by her GP in December 2019. She recovered from this episode. The symptoms of depression and anxiety returned in June 2022 and continued up to and beyond the date of her dismissal.[65]From September 2022, the Claimant also had a physical impairment. She was diagnosed with gastroenteritis in September 2022 but was told at the hospital that it was also colitis, which is inflammation of the bowel. Since then the Claimant has experienced on-going issues arising from inflammation of the bowel, which occur intermittently but frequently, and the Claimant says the symptoms can be brought on by anxiety and stress. Did the impairment affect the claimant’s ability to carry out normal day-to-day activities? Was the adverse condition substantial?[66]The Claimant’s ability to carry out normal day-to-day activities was impaired by her mental impairment, namely anxiety and depression.[67]In 2018 and 2019, the Claimant experienced low mood, poor sleep, poor concentration and feelings of helplessness. The Claimant also experienced symptoms of anxiety. She experienced a racing heartbeat and felt constantly on edge. She experienced chest pains and feelings of breathlessness. She explained she would find herself ruminating, shaking, and suffering with panic attacks. When she had a panic attack she would start sweating, feel very tense, and start crying or sobbing. She suffered these same symptoms, of depression and anxiety, starting in June 2022 and they continued until after the relevant period (August 2022 to February 2023).[68]The impact on the Claimant’s ability to carry out day to day activities was substantial. She did not sleep well. She struggled to get out of bed, lost interest in maintaining her personal hygiene, and would often not brush her teeth or shower. She found it difficult to concentrate. From August 2022, she was unable to continue working. She found it difficult to leave the house. Her ability to care for her child was impacted, such that she was very dependent on her parents to assist her. She stopped socialising and lost interest in watching television or pursuing any hobbies. She would experience panic attacks which would require her to stop what she was doing or leave where she was right away. She did not want to travel to new places and wanted to stay close to home. Overall, the Claimant’s mental impairment had a substantial adverse effect on her ability to carry out normal day-to-day activities.[69]The Claimant’s ability to carry out normal day-to-day activities was impaired by her physical impairment, namely colitis.[70]When the Claimant experiences episodes of vomiting or diarrhoea, which can often occur multiple times in one day, the Claimant is very unwell and cannot work, look after her child, or cook for herself. She needs to be by a bathroom, cannot leave the house, and so she cannot go out shopping, attend appointments, socialise or attend the gym, until the vomiting or diarrhoea has passed. When the Claimant is suffering from an episode it has a substantial adverse effect on her ability to carry out normal day-today activities. Was the adverse condition long term?[71]The Claimant started experiencing symptoms of anxiety and depression in 2018 after the birth of her son. She was diagnosed with anxiety with depression in September 2019 and depression in December 2019. I was not presented with evidence as to whether the Claimant experienced the symptoms of depression and anxiety constantly from 2018 to December 2019 or on a fluctuating basis. Therefore, I did not feel able to conclude that by December 2019, the Claimant’s mental impairments had had a substantial and adverse effect on the Claimant’s ability to carry out normal day-to-day activities, for a 12 month period. Nor was I able to conclude that in December 2019, the Claimant’s anxiety and depression was likely to reoccur. I was not presented with evidence from December 2019 which suggested the Claimant's mental impairments were likely to reoccur.[72]However, once the Claimant suffered a re-occurrence of both conditions in June 2022, such that she described being paralysed with anxiety, and such that by August 2022, she felt unable to work, I did conclude that the effects of the Claimant’s impairments were long term. From the end of July 2022, once the Claimant had suffered a further two months of severe anxiety and depression, it was then likely that her conditions would be reoccurring conditions. In reaching this decision I have not taken into account what happened in terms of the Claimant’s anxiety and depression after the relevant period, but have focused on what had occurred in 2018, 2019 and June and July 2022. Further, by the end of July 2022, it was also likely that the adverse effects would last for a period of over 12 months in aggregate (taking into account the periods in 2018, 2019 and starting in June 2022).[73]I have therefore found that the Claimant was disabled under section 6 of the Equality Act 2010 by virtue of suffering from anxiety and depression from the end of July 2022 onwards.[74]In terms of colitis, the Claimant started experiencing gastroenteritis and colitis in early September 2022. The acute phase lasted for several months after which the Claimant has continued to suffer from frequent shorter episodes of vomiting and or diarrhoea. While I accept that the Claimant is now disabled by virtue of having colitis, I do not find that the Claimant was disabled by virtue of having colitis over the relevant period. The relevant period started in August 2022 and ended in mid-February 2023. By midFebruary 2023, the Claimant had been suffering adverse effect on her ability to carry out day to day activities by virtue of having colitis for 6 and half months. Therefore, the adverse effect had not lasted for 12 months by that point. While it has transpired that the Claimant’s condition has lasted for longer than 12 months and is reoccurring, I have to assess the position as it was in mid-February 2023. I have not been presented with evidence that suggested that by mid-February 2023 it was apparent the Claimant’s condition would be likely to reoccur, as opposed to be being an acute episode of inflammation which was taken several months to fully resolve. Nor have been presented with evidence which suggested that in midFebruary 2023, it was likely that the adverse effects would continue for 12 months. Therefore, I have continued that by September 2023, the Claimant met the definition of disabled by virtue of having colitis but that she did not over the relevant period of her claim.[75]Finally, I heard evidence from the Claimant that some of the Claimant’s episodes of vomiting and/or diarrhoea have been triggered by stress or anxiety. However, as I have not been asked to reach a conclusion on whether issue of whether the Claimant’s episodes of vomiting and/or diarrhoea are something that arise in consequence of her disability, depression and anxiety, I have not reached a conclusion on that point. That will be a matter for the Tribunal who hears the final case to decide if necessary. Approved by
Findings of fact
[76]On 26 October 202, the claimant duly sent another fit note – page 103. November[77]On 10 November 2022, the second respondent emailed the claimant – page 103/185. That email attached an invitation to a welfare meeting - page 130. The purpose of that meeting is set out as being: “to establish the nature and extent of your illness, how long it’s likely to be before you are well enough to return to work and what arrangements we might need to make to ensure your safety. We will use the information to inform any decision or actions we may take in light of your current health status”.[78]The invitation sets out that the welfare meeting would be on 14 November 2025. Correspondence followed between the parties leading to a rearranged meeting on 25 November 2022 – page 102/131. The last correspondence on this rearrangement is at [131] in which the second respondent stated: “Thank you for coming back to me about the welfare meeting arrangements. The 25/11/22 at 12pm would be acceptable to meet if we were able to complete via Teams as I am technically away that day however because we originally arranged this meeting today so we could also gain your sick note, I would require this prior to the meeting to document your ongoing absence. Your medical certificate expired on 31st October 2022, and this is required by your terms and conditions of employment alongside the other missing ones. Please provide these no later than Friday 18th November. ... I feel it only fair to advise you that if you fail to provide a follow-on certificate or contact us to discuss the reasons for your absence, or if the reasons for your absence are unacceptable, we may proceed with disciplinary action against you”.[79]I find that this email reasonably reads as meaning that receipt of fit notes by 18 November is a pre-condition for the meeting on 25 November going ahead. On 24 November 2022, the claimant emailed the second respondent explaining why the fit notes are not forthcoming from the GP surgery – page 108. This therefore means that the pre-condition for the welfare meeting was not met.[80]By 25 November, the respondent had not sent to the claimant a Teams invitation for a welfare meeting. The claimant’s evidence is that she attempted to call the second respondent on 25 November at about 1150hrs on Microsoft Teams in order to carry out the welfare meeting and stayed online until around 1240hrs. The claimant sent a Teams message at noon stating words to the effect of “We’re here”. She and her mother then sent another message before they logged off Teams at around 1240hrs.[81]The second respondent’s evidence on this point was that he had not had the fit notes by 18 November, and so no meeting invitation was sent: as far as he was concerned the welfare meeting was not going to go ahead. As set out in his email 14 November, he was on holiday on 25 November.[82]The claimant did not suggest that she had in fact sent the requested fit notes by 18 November 2022. As such, it appears common ground that the precondition for the meeting was not met. I find that it may have been helpful for the second respondent to clarify that the welfare meeting would therefore not proceed once the deadline of 18 November had passed. However, I find that the reason why there was a failure by the second respondent to attend the meeting on 25 November was the fact that the pre-condition had not been met. (Issue 3.1.3/4.1.3)[83]There is no email from the claimant to the second respondent any time after 25 November or before her dismissal to question the lack of welfare meeting, or to ask for a rearranged meeting.[84]On 28 November 2022 at 0853hrs, the claimant sent to the second respondent a fit note - [108].[85]In response on 28 November the second respondent emailed the claimant asking whether she intended to return to work on Monday, in light of the most recent fit note sent - page 187. December[86]On 7 December 2022, the second respondent emailed the claimant attaching an invitation to a disciplinary hearing scheduled for 12 December 2022. The attached invitation itself is dated 6 December - page 187/132. The allegations at that stage are two-fold: “Your persistent and unexplained absence from work on the following dates: - 12th to 15th September 2022 with no sick note provided - 5th December 2022 to date Your alleged failure to respond to a reasonable written management request on 28th November 2022 to respond with missing sick notes and an estimated return to work date”.[87]There is no good evidence to contradict that the allegations set out above were the genuine reason for the disciplinary being called. Furthermore, the factual allegations are accurate. There may well have been valid reasons why the claimant was off sick and had not been able to provide fit notes, and why she had not responded to the second respondent’s email of 28 November. However, the fact remains that the allegations were factually accurate. I therefore accept that the reason why the disciplinary meeting was called was because the facts behind the allegations had occurred as stated. (Issue 3.1.4/4.1.4)[88]The invitation went on to state: “If you do not attend the disciplinary hearing without giving advance notification or good reason, I will treat your non-attendance as a separate issue of misconduct”.[89]On 10 December 2022, a Microsoft Teams link was sent for a virtual disciplinary meeting - page 187. The claimant did not attend the meeting, nor did she communicate the fact or reason for her non-attendance before the hearing.[90]On 21 December 2022, the second respondent emailed the claimant attaching a second disciplinary hearing invitation letter scheduling a disciplinary meeting for 23 December 2022 – page 187/133. That letter set out that, as well as considering the original two allegations, the next disciplinary hearing would also consider the claimant’s failure to attend the first disciplinary hearing without notification or good reason. The letter went on to state: “...you are now receiving a final warning and forewarning that if you fail to attend this rescheduled hearing without notification or good reason, this will be treated as a second act of misconduct and your employment will be terminated”.[91]The second respondent also sent a second email attaching a Microsoft Teams meeting link – page 188.[92]Both disciplinary invitations were sent to the claimant’s work email address and private email address.[93]I accept that the claimant was not able to keep on top of her emails during this time. She was not opening her emails as to do so caused an exacerbation of her mental health conditions. This meant that the claimant did not see any of these invitations/communications from her employer.[94]On 23 December 2022, the claimant did not attend the disciplinary hearing for that reason, and provided no reason and no notice of her failure to attend prior to the meeting. January 2023[95]On 3 January 2023, the second respondent emailed the claimant attaching a letter confirming her dismissal with notice - page 134/188. The letter does not set out any findings in relation to the original two allegations set out at paragraph 56 above. It, however, does state that the failure to attend both disciplinary hearings without notification and without good reason was an ongoing failure to obey reasonable instructions, and was an act of misconduct. The letter confirmed that the claimant’s last day of employment would be 31 January 2023, and that she had the right to appeal.[96]I am satisfied that the reason for the decision to dismiss the claimant was her failure to attend the two disciplinary meetings, and the respondents’ view that this amounted to misconduct. Although one of the claimant’s claims is that she was dismissed because of her disability, I can see no good evidence to support that assertion, or to undermine the evidence from the respondent as to the reason for dismissal. (Issue 3.1.5/4.1.5).[97]I highlight at this stage that the claimant had not communicated with the respondent since 28 November 2022. Her next communication came the day after the dismissal letter was sent. The respondents suggest that this cannot be a coincidence, and that the claimant must therefore have been monitoring her emails more closely than she now suggests. Although I can see that argument may have some force, I have already accepted that the claimant was not able to keep on top of her emails by December 2022 because of the exacerbating effect the process of accessing her emails had on her mental health. I therefore reject this suggestion from the respondents.[98]On 4 January 2023, the claimant appealed the decision to dismiss her at page 137/189.[99]On 5 January 2022, the second respondent sent an invitation to the appeal hearing - [137].[100]On 9 January 2022, the claimant emailed the second respondent at page 137: “I am still very poorly, please see attached for newest sick note. As always as soon as I receive, I will forward them onto you. I regretfully cannot attend this appointment as I am very unwell, this is something I wanted to discuss in the welfare meeting that was very hard for me attend however you did not call on teams. Please can this meeting be rescheduled.”[101]On 11 January at 1130hrs, the claimant emailed the second respondent regarding fit notes – page 108.[102]On 11 January at 1639hrs, the second respondent responded to the claimant stating that the next stage of the process was to attend the appeal hearing, rather than a welfare meeting.[103]The claimant replied on 22 January 2023, stating that she was confused and querying whether they had dismissed her. In terms of her ill health she stated: “I am still very unwell and have a mental health nurse who is overseeing my health...”[104]On 23 January 2023, the second respondent emailed the claimant to confirm that she had been dismissed and to rearrange the appeal hearing.[105]On 25 January, the claimant responded to say that her mother would be attending the appeal hearing with her as “I am in no mental state” - page 135.[106]On 27 January 2023, an appeal hearing was held, chaired by Paul Griffiths. The notes of that hearing are at page 145-154. In terms of the claimant’s disability and health generally, I note the following entries: 106.1. [146] - “She’s been really distressed and she hasn't been able to go on her work emails (erm) because just opening the laptop, just causes her a lot of anxiety ...”; 106.2. [146] - “...she doesn’t open her laptop because she just feels so anxious”; 106.3. [147] - “[the claimant] is keen, really keen to get back to work but as I say, she just feels so stressed”; 106.4. [148] - “...why she was so distressed ... I think you’re aware of [the third respondent] ...if we could (sort of) take [the third respondent] out of the equation, she still working [sic] there”; 106.5. [148] - “...so if [the claimant] could have been moved to the different department and not had any (erm, you know) working relationship with [the third respondent], (like) she’d be working now”; 106.6. [148] - “...mental health, is, isn’t good, like she’s...she finds it really difficult to open the (you know) her laptop to look at emails ...”; 106.7. [148] - “Erm, I don't know how much you know, but she’s, she’s under the Mental Health team (erm) they’ve been quite concerned about her. Erm, and she has had a lot of...so she was physically .... so we’ve got the mental side of things but also physically very unwell for many, many weeks, (erm) and she did end up in hospital because of that as well”.[107]Mr Griffiths summarised the claimant’s position at one point on page 149: “Paul - ...you were extremely happy in your role and then obviously [the third respondent] had had a on [sic] (you know), a considerable impact on where this has all, sort of, started to, started to come apart... Claimant’s mother - yeah yeah. Paul – Erm, which, which is affected your mental and physical well-being considerably to the point where you referred to hospital Claimant’s mother – yeah”.[108]Mr Griffiths’ understanding was confirmed by the claimant’s mother.[109]The account given by the claimant’s mother was that the claimant very much wanted to return to work but was “really not in a good place still” - page 151. The claimant’s desire was to return to work with a slow phased return, with no interaction with the third respondent – page 151. 110. 31 January 2023 was the claimant’s last day of employment. February 2023[111]At the summary of email exchanges regarding dismissal at pages 181 to 196, it is recorded at page 193 that an email was sent by the second respondent on 8 February 2023 stating: “Following your appeal heard by Paul Griffiths. Whilst [we] are sympathetic with your current circumstances the reasons for your termination as noted in original termination letter still apply therefore your termination as of the 03/01/2023 stands.”[112]A copy of that email in the usual email format with header appears at page 197, stated as being sent on 8 February at 1631hrs.[113]In the bundle, there is also a letter dated 9 February 2023 from Mr Griffiths to the claimant confirming the decision to reject the claimant’s disciplinary appeal – [155]. The second respondent’s evidence was that this was also sent on 8 February and that the date of 9 February was a mistake.[114]It is the claimant’s case that she never received the email on 8 February 2023 or indeed the letter dated 9 February 2023. In support of this argument, the claimant has disclosed a screen shot of her email inbox for the period 21 December 2022 to 29 May 2023, focusing on emails from the second respondent. There is no email of 8 February 2023.[115]I find that it is more likely than not that the email from the second respondent was sent on 8 February 2023, due to the following facts: 115.1. The email appears both in its raw form, and copied within the summary of emails regarding dismissal; 115.2. I find it unlikely, nor is there any good evidence to suggest, that the email at [197] is fake/forged; 115.3. The fact that this email was sent is supported by its presence within the summary of emails on page 193; 115.4. Although the email does not appear in the claimant’s screen shot, there are several innocent explanations for this, such as the email was accidentally deleted, or placed in a different folder for example.[116]I am not satisfied that the claimant ever received the letter at page 155 dated 9 February 2023. The email of 8 February does not refer to an attached letter, nor is there the usual symbol in the header block stating that there is an attachment present. I also note that the author of the letter (Mr Griffiths) is not the author of the email (the second respondent). There is no good evidence in the bundle that the letter on page 155 was in fact sent, whether by email or post.[117]This matter relates to the factual allegation at Issue 3.1.6/4.1.6. Given I have found that notification of the outcome of the appeal was sent on 8 February, that allegation fails on its facts. March 2023[118]On 20 March 2023, the claimant received a diagnosis of mixed anxiety and depressive disorder.[119]On 28 March 2023, the claimant also received the DWP’s work capability assessment decision. This assessed the claimant as having limited ability to work. May 2023[120]On 10 May 2023, the claimant sent the second respondent an email, questioning why she had not received any sick pay, and why she had not received an outcome from the appeal hearing – page 158. No response was received and so the claimant sent a chasing email on 28 May 2023 – page[121]The second respondent replied on the same day stating that the claimant’s employment with the first respondent had terminated on 3 January 2023, and that this termination was upheld on appeal - [157]. Fit notes[122]I have seen in the bundle the following fit notes. These are the same fit notes that were made available to the respondents, covering the relevant period of alleged discrimination: 122.1. [120] - fit note covering 02.09.22 - 09.09.22, stating “stressrelated problem”; 122.2. [125] - fit note covering 01.10.22 - 09.10.22, stating “abdominal pain”; 122.3. [127] - fit note covering 10.10.22 - 24.10.22, stating “rectal bleed”; 122.4. [126] - fit note covering 24.10.22 - 31.10.22, stating “acute tonsillitis”; 122.5. [129] - fit note covering 24.10.22 - 02.12.22, stating “rectal bleed” 122.6. [116] - fit note covering 03.12.22 - 19.12.22, stating “abdominal pain, vomiting"; 122.7. [141] - fit note covering 03.01.23 - 17.01.23, stating “abdominal pain”.[123]None cite anxiety and depression. All bar one relate to physical ailments. Oral evidence as to disclosure of health issues[124]The claimant’s evidence to the Tribunal was that she did not declare a disability at the time of joining the respondent, but this was because she did not know she had one at that point. She did however “express distress, said [she] wasn’t coping and the reasons why – I was confident and happy when I started at RAD, but after a few months felt I was being picked on, [the third respondent] was the trigger and it made my mental health plummet”.[125]The claimant said that she told the second respondent that her “confidence was sub-zero” and that “work was really affecting” her.[126]When asked what detail she conveyed to the second respondent, the claimant said “it was so apparent as I was sobbing over the phone, I said I was on edge I couldn’t work with the third respondent, I can't do this anymore, told him my confidence was sub-zero”.[127]The claimant also said that “I know the fit notes said slightly different things, but they all related to mental health”. As can be seen from my summary of the fit notes available in the bundle, this is not the case: only one relates to mental health, specifically stress-related problems. The others all relate to physical matters.[128]The second respondent's evidence was that he and the claimant had “a couple of conversations” about how she felt the third respondent was treating her, but “the impression was not that it was as bad as we now find out”.[129]I find that there is no material difference between the claimant’s recollection of verbal conversations, and the second respondent’s recollection. I accept that there were a few conversations between the two in which the claimant explained that she was experiencing anxiety and stress due to the third respondent’s treatment of her. I accept that the claimant became upset in a telephone call to the second respondent. I further accept that she told him some of the symptoms that she was suffering, but not the full extent of them.[130]I asked the second respondent what his impression was of how long the claimant’s illness may last. His answer was “I was hoping it would be a short-term thing I would think – because it stemmed from matters with [the third respondent]”. I also asked him what his understanding of the cause of the claimant’s health issues was: he told me “the working relationship with [the third respondent]”.[131]I accept this evidence, given the information that the second respondent was being told by the claimant. I also find that the conclusions he reached as to the probable length and cause of the claimant’s illness were reasonable ones based on the information before him provided by the claimant. Conclusions Respondent’s knowledge
Conclusions
[132]The question I have to ask is “could the respondent reasonably have been expected to know of the facts that would demonstrate that she had a disability”; namely that: 132.1. She was suffering from a mental impairment; 132.2. That impairment had a substantial adverse effect on her ability to carry out normal day to day activities; and 132.3. That effect was long-term.[133]Employment Judge Annand in her written reasons set out the facts demonstrating the claimant had a disability as follows: 133.1. The mental impairment was anxiety and depression; 133.2. The claimant’s ability to carry out normal day to day activities was impaired by that anxiety and depression by the following - [56]: 133.2.1. Low mood; 133.2.2. Poor sleep; 133.2.3. Poor concentration; 133.2.4. Feelings of helplessness; 133.2.5. Racing heartbeat; 133.2.6. Feeling constantly on edge; 133.2.7. Chest pains and breathlessness; 133.2.8. Panic attacks, ruminating, shaking, sweating, feeling very tense, crying/sobbing; 133.2.9. Struggling to get out of bed; 133.2.10. Losing interest in maintaining her personal hygiene; 133.2.11. Not brushing her teeth or showering; 133.2.12. Difficulty concentrating; 133.2.13. From August 2022, being unable to continue working 133.2.14. Finding it difficult to leave the house; 133.2.15. Her ability to care for her child was impacted; 133.2.16. Stopping socialising and losing interest in watching television or pursuing any hobbies; 133.2.17. Not wanting to travel to new places and wanting to stay close to home.[134]The effect was long-term on the basis of the following - [56/57]: 134.1. She started experiencing symptoms in 2018; 134.2. She was diagnosed with anxiety and depression in September 2019; 134.3. However, the Judge stated that she was not able to find that, as at the end of 2019, the effects had lasted for a year, or were likely to recur; 134.4. From the end of July 2022, it was likely that the claimant’s conditions would be reoccurring conditions. She also concluded that, by the end of July 2022, it was likely that the adverse effects would last for a period of over 12 months in total.[135]I have to ask, “has the respondent demonstrated that it would be unreasonable for them to be expected to know the above facts during the relevant period (August 2022 to February 2023)?”.[136]I must take into account all relevant factors. I consider the relevant factors to be as follows: 136.1. The detail on the fit notes that the respondents received. None cite anxiety and depression. Only one relates to mental health and cites stress-related problems; 136.2. What the claimant told the respondents about her symptoms. Namely that she was suffering from stress, sobbing, could not sleep or eat properly, could not think clearly, was vomiting regularly; 136.3. What the claimant told the respondents about the cause of her symptoms. She conveyed repeatedly that the main cause of her stress and anxiety was the third respondent. Secondary to that, she informed the respondents that the letter she received regarding a disciplinary process on 23 August 2022 also triggered stress and anxiety; 136.4. What the claimant told the respondent in terms of a solution to her anxiety and stress. The claimant repeatedly conveyed that the problem would be fixed by the claimant moving teams and not having to work with the third respondent; 136.5. Even during this Tribunal process, the direction of crossexamination of the second respondent was that the cause of the claimant’s mental health issues was the third respondent; 136.6. I consider that it is also a relevant factor to consider what the claimant did not tell the respondents. The respondents were unaware of the claimant’s history of mental health issues. I also note the claimant’s mother’s comment during the appeal hearing “I don't know how much you know”. I find that this shows that the claimant’s mother was not clear on what the claimant had told her employer, and that her understanding was that the claimant may not have told her employer the full extent of her health problems.[137]Turning then to the impairment first. The respondent was never provided with anything in writing or verbally (on the evidence before me) to say that the claimant was suffering with depression. Anxiety was mentioned by the claimant during the relevant time, but with no medical supporting evidence given to the employer during the relevant period. There are many references to mental health, but nothing more specific than a few references to anxiety and stress.[138]In terms of the cause of the claimant’s mental health issues at the relevant time, the reasonable impression given by the claimant, both in verbal communication and email form, was that her condition was a reaction to life events. This reasonably would point away from the effects leading to a clinical diagnosis, and would lead more reasonably to a conclusion of a reactive episode triggered by the third respondent, that would resolve once the working environment was resolved.[139]In terms of “substantial adverse effect”, the respondent was only privy to a limited amount of the information as to the effects highlighted by Employment Judge Annand. In terms of the claimant’s inability to work, the cause of that inability is confused by the production of fit notes that do not match with the deterioration in mental health that the claimant describes.[140]In terms of the effects being long-term. As stated already, the information conveyed to the respondent by the claimant suggested that her mental health issues could be resolved by a change in her working arrangements. I have already accepted that the second respondent was reasonable in his belief that the claimant’s mental health issues would in all likelihood be short-term, given that the third respondent was the trigger. Furthermore, the claimant referred to “new symptoms” in the email referenced at paragraph 67 above. That again reasonably suggests that she has not had a history of mental health issues.[141]I must consider also whether the respondents did all they could reasonably have been expected to do to find out if the claimant had a disability. However, this question of reasonablessness in itself must be informed by the knowledge that the respondent held at the time. It is not a requirement that an employer make every enquiry where there is little or no basis for doing so. I conclude that, on the information that the respondents had, there was no requirement for them to make further enquiries around anxiety and depression, given that the information given by the claimant pointed towards a reactionary mental health episode triggered by the third respondent, that the claimant was saying would be remedied by removal of the third respondent from the claimant’s line management. Furthermore, the respondents had fit notes that, if anything, pointed away from there being a need to enquire about anxiety and depression.[142]I consider that it would have been reasonable to offer a welfare meeting after the meeting on 25 November was ineffective. However, on the facts as I have already found, there was no communication from the claimant between 28 November 2022 and 4 January 2023. Further, I have found that the claimant was not keeping on top of her emails and was not reliably reading emails from the respondent. Therefore, it is more likely than not that, even if the respondent had sought to rearrange a welfare meeting, the claimant would have missed that communication, and no such meeting would have in fact take place.[143]Even if a welfare meeting had take place in November/December 2022, I consider that it is more likely than not that the claimant would not have disclosed anything more than she had already disclosed in the emails and in the conversations described above. The detail the claimant did provide to the respondents was freely given, with no constraints placed on her in terms of what she divulged. Therefore, I consider that, had a welfare meeting taken place, it would not have shed any further light on the claimant's disability.[144]In light of my conclusions and findings above, I conclude that the respondents have satisfied me that it would have been unreasonable for them to have had constructive knowledge of the claimant’s disability during the relevant period.[145]Given that knowledge is a pre-requisite to both a claim under s13 and s15 EqA, both claims fail. I therefore do not consider the remaining issues any further. Approved by:
Conclusions
[1]There are five grounds set out in the reconsideration application. I will consider them in turn.[2]Ground 1 relates to the Written Reasons provided by Employment Judge Annand, sent to the parties on 6 April 2025. Any application to reconsider the Judgment attached to those Written Reasons is out of time by several months: parties have 14 days from the date on which the Judgment is sent to them to apply for reconsideration – rule 69 of the Employment Tribunal Procedural Rules 2024. It is therefore rejected.[3]In terms of Ground 2, the claimant’s representative has cited two paragraphs of the Written Reasons sent to parties on 26 September 2025; paragraphs 127 and 136.1. None of the representations made thereafter have any reasonable prospect of altering the contents of those paragraphs and therefore leading to revocation or variation of the Judgment made.[4]Regarding Ground 3, the claimant’s representative submits that I failed to determine causation in relation to Issues4.2.1 and4.2.2 relating to the s15 Equality Act 2010 claim, despite clear evidence. The fundamental issue in this case was whether the respondent had the requisite knowledge of the claimant’s disability. That knowledge is a precondition to claims under section 13 and section 15 of the Equality Act 2010 (“EqA”) succeeding. The claimant’s claim was limited to those two heads of claim. I made a determination on knowledge, specifically that the respondent did not have the requisite knowledge required for either claim succeed. As such on that issue alone the claimant’s claims failed. This ground therefore has no reasonable prospects of success of leading to a revocation or variation of the Judgment.[5]Turning to Ground 4, again the fundamental issue with this claim was that, in the Judgment, my decision was that the respondent did not have the requisite knowledge required for a section 15 EqA claim to succeed. Therefore her points at Ground 4 have no reasonable prospect of leading to a revocation or variation of the Judgment made.[6]In relation to Ground 5, the claimant is correct to say that there is an error at paragraph 11 of the Written Reasons. I have stated at paragraph 11 that “we were able to then use day two and three to hear the evidence of all three witnesses”. In fact all three witnesses gave evidence on one day, that being day three of the hearing; Thursday, 8 May 2025. This point however has no reasonable prospect of leading to a variation of revocation of the Judgment.[7]Within Ground 5, the claimant makes reference to late instruction of documents, impartiality concerns, and being instructed to cross examine the respondent’s witness in the afternoon of that Thursday. She says that these are procedural irregularities. The claimant’s representative states that she was “not adequately prepared due to late provision of the bundle and the unexpected change of the order of proceedings”.[8]Case management of this hearing was considered on the first day of the hearing, that being Tuesday, 6 May 2025. In that discussion I made it clear to the claimant’s representative that it was only right that she be familiar with the respondent’s witness statement and the bundle. I was informed by the claimant’s representative that she was familiar with the bundle having discussed it with the respondent’s solicitor the Saturday before the hearing commenced: she said it was just the page numbers with which she needed to familiarise herself.[9]All parties were keen to progress this matter at if possible, given that we had a false start due to lack of finalised bundle and exchange of witness statements. This was particularly so given that I had informed the parties that to relist the hearing would have meant to wait until May 2026 for the final hearing.[10]I explained to the parties that my view was at least to start the hearing during the course of the listed three days, and then if we needed to have a part-heard hearing it would be dealt with much sooner than relisting the whole final hearing altogether. Orders were made with the agreement of the parties on day one.[11]It is right that the claimant’s representative cross-examined the respondent’s witness on the afternoon of day three, that being Friday 8 May 2025. Prior to commencing that process, it was not raised with me that the claimant’s representative felt she had not had sufficient time to prepare to cross-examine the witness that afternoon.[12]In summary the matters now raised at Ground 5 of the Reconsideration Application were not raised during the course of the hearing. No concerns were raised with me as to the suggested and enacted procedure during the course of the hearing. All case management orders and the progression of the hearing were dealt with in agreement with both parties.[13]I therefore conclude that there are no reasonable prospects of Ground 5 leading to a variation or revocation of the Judgment. Date: 14 November 2025 Approved by