Mr W Hickes v Oxford University Hospitals NHS Foundation Trust: 3311188/2023

EMPLOYMENT TRIBUNALS

Case No 3311188/2023

Between

Mr W HickesClaimant

Oxford University Hospitals NHS Foundation TrustRespondent

Before

Employment Judge Boyes

In person for claimant

Mr Kennedy (instructed by counsel) for respondent

Date 30 June 2025

REASONS

[1]I apologise to the parties for the delay in providing this reserved judgment because of health reasons. I apologise for any inconvenience and concern that the delay has caused.

[2]By a claim form presented to the Employment Tribunals on 26 September 2023, following Acas Early Conciliation between 24 July 2023 and 4 September 2023, the Claimant pursues complaints of constructive unfair dismissal, disability discrimination, sex discrimination, victimisation (section 27 Equality Act 2010), less favourable treatment of a fixed-term employee and breach of contract.

[3]The Respondent denies liability in respect of all of the complaints. The Proceedings / Preliminary Hearing

[4]The preliminary hearing was arranged in order to: i. Determine whether the Claimant was a disabled person at the material time within the meaning of section 6 Equality Act 2010; ii. Determine whether the claims for unfair dismissal and breach of contract were made prematurely; iii. Determine whether the Tribunal lacks jurisdiction pursuant to the ACAS Early Conciliation process; and iv. Consider the claims & response, further identify the issues and make appropriate case management directions.

[5]The Respondent also requested that the Tribunal make a deposit order in respect of the constructive unfair dismissal complaint. I refused that application. My reasons for doing so are contained in my separate Case Management Orders.

[6]The Claimant gave sworn evidence. He had not prepared a witness statement so he adopted his Impact Statement and I asked him further questions which formed his evidence in chief. He was cross examined by the Respondent and asked further questions by way of clarification by me.

[7]Both parties made oral closing submissions. The Respondent had also provided written submissions in respect of disability.

[8]Judgment was reserved as there was not sufficient time for Judgment and Reasons to be given orally at the hearing. Documents

[9]The Tribunal had before it a bundle of 160 pages prepared for the preliminary hearing and submissions on disability from the Respondent. The bundle includes the Impact Statement and the medical evidence relied upon by the Claimant. Background/Chronology

[10]The Claimant commenced employment with the Respondent on 6 August 2018 as a Band 5 Senior Clinical Data Coordinator. The post was for a fixed term of 1 year until 5 August 2019. He was a data manager and GMP technician.

[11]On 3 July 2019, the Claimant’s fixed term contract was extended until 5 August 2020. The Claimant was paid an uplift in salary from Band 5 to Band 6 from 1 December 2020 to 31 March 2021. This was to reflect the additional responsibilities undertaken by the Claimant who was covering a vacancy within the team.

[12]The Claimant’s contract was extended for a further year until August 2021. The Claimant was paid an uplift from Band 5 to Band 6 from 1 April 2021 to 31 August 2021.

[13]On 1 May 2021, Avianna Laws took over the line management of the Claimant.

[14]On or around 5 July 2021, the Claimant’s fixed term contract was further extended to 31 March 2022. The Claimant was paid an uplift from Band 5 to Band 6 from 1 September 2021 to 31 March 2022.

[15]On 1 April 2022 the Claimant’s fixed term contract was extended to 31 March 2023. This role was funded by an IDEAL research grant and the Claimant again was given a pay uplift to Band 6.

[16]On 24 February 2023, Avianna Laws wrote to the Claimant to invite him to a meeting to discuss his fixed term contract as she did not believe that the Respondent was in a position to continue to the pay the uplift from Band 5 to Band 6 due to the funding and project coming to an end.

[17]On 15 March 2023, the Claimant met with Avianna Laws and Georgia Buckland (Human Resources). Ms Laws confirmed that the Claimant would receive two months’ notice to end the Band 6 role and that notice would run from 24 February 2023.

[18]On 23 March 2023, the Claimant commenced a period of sickness absence. On 30 March 2023 the Claimant provided his fitness to work certificate to Avianna Laws.

[19]On 1 April 2023, the Claimant’s fixed term contract was extended to 31 March 2024 funded from DOLCE research project. This was authorised by the Claimant’s line manager, Avianna Laws, on 22 March 2023. However, the Respondent decided that there would be no uplift in the band given and the Claimant was to remain on Band 5 from 25 April 2023 onwards.

[20]The Respondent accepts that the Claimant worked as a Band 6 Clinical Data Manager under the Respondent’s Secondment and Acting up Procedure from 1 December 2020 until 25 April 2023 on a series of fixed term contracts.

[21]On 19 April 2023, the Claimant raised a formal grievance about changes to his contract. In outline, he raised concerns that: he was not consulted about the change, there had been a breach of his contract because of the variation, his job description was not adequate, the process should have been managed by a different manager due to Avianna Laws’ maternity leave, there had been mismanagement of his contract, the acting up was not done in accordance with the Respondent’s policy, and that he had become a permanent employee by operation of law on 8 August 2022. He also asserts that the whole process had been illegal and discriminatory.

[22]On 19 April 2023, the Respondent triggered the long-term sickness procedure due to the Claimant’s length of sickness absence. The Respondent arrange a stage 1 sickness meeting for 22 May 2023 which was subsequently re-arranged for 22 June 2023.

[23]On 4 May 2023, the Respondent wrote to the Claimant to invite him to attend a hearing under the formal stage of the Respondent’s Grievance Procedure. The hearing was arranged for 19 May 2023 but subsequently re-arranged for 22 May 2023. The hearing was chaired by Toni Mackay, OSM Diagnostics.

[24]On 5 June 2023, Toni Mackay wrote to the Claimant to confirm the outcome of the grievance. None of the grievances were upheld but some recommendations were made.

[25]On 5 June 2023, the Claimant exercised his right of appeal. An appeal hearing was held on 8 August 2023 and adjourned to 5 September 2023. On 15 September 2023, the appeal chair, Doreen Carter wrote to the Claimant with the outcome of the appeal. The Respondent upheld the original decision of the grievance hearing.

[26]On 22 June 2023, the long term absence stage 1 meeting was held. The Claimant was subsequently referred to Occupational Health and he attended a telephone assessment on 31 August 2023. A written report followed.

[27]On 10 August 2023, a long term absence stage 2 meeting was held. The Claimant did not attend so the Respondent decided to proceed in his absence.

[28]The Claimant gave notice that he intended to resign from his employment on 26 September 2023. The effective date of termination was 26 November 2023.

[29]The Claimant stated in live evidence that he completed the claim form himself: his trade union representative was not involved. He accepts that he ticked the ‘sex discrimination’ box but did not provide any further details. He stated that he accepted that this was an error on his part. The Respondent’s position in relation to Jurisdiction [claim being made prematurely/early conciliation]

[30]The Respondent’s position had been, until the hearing before me, that the claims for unfair dismissal and breach of contract were made prematurely because the Claimant submitted his claim prior to the effective date of termination (the end of his notice period).

[31]At the hearing before me, Mr Kennedy confirmed on the Respondent’s behalf that it was accepted that the Claimant resigned on the 26 September 2023 and so it was not now asserted by the Respondent that the Tribunal lacked jurisdiction on the basis that his claim was made prematurely.

[32]The Respondent also argued that, since the ACAS Early Conciliation period began on 24/7/2023 and ended on the 4/9/2023, and so it could not cover any claim for unfair dismissal arising from a later resignation. Mr Kennedy confirmed that the Respondent accepted that early conciliation took place prior to the resignation and so was not taking any point in this respect. The Claimant’s Submissions on disability

[33]In his further and better particulars of the 19 April 2024, the Claimant states the following. His employer was aware that he was on long term sick as a consequence of depression and anxiety. The Respondent received at least seven fit notes confirming this and was repeatedly informed of Claimant’s condition in meetings and emails. He was referred to occupational health. He informed the Respondent about the help he was receiving in the community via his GP.

[34]Occupational Health categorised him as being disabled under the Equality Act 2010. The form was signed by a doctor and specifically cited the Equality Act 2010.

[35]Further evidence of the Respondent’s understanding of the seriousness of the situation can be seen on 15 September 2023 as Mr Handley was concerned with Claimant’s mental health and shared emergency mental health resources.

[36]He has been unable to work for an extended period of 13 months [at the date of the further and better particulars].

[37]The Claimant provided further information about his mental health condition in a document dated 4 July 2024 [63]. He states that he is relying upon his diagnosis of depression in respect of his claim under the Equality Act 2010. He was diagnosed on 12 April 2023. He had been suffering from this since 23 February 2023 and was off work sick from 24 March 2023.

[38]He is still suffering from severe depression. This deeply effects his sleep pattern, energy levels and ability to concentrate. It has had a profound negative impact on his life. It effects every aspect of his day-to-day life, and this has been going on since February 2023. It is difficult for him to say how long this will continue; one of his main challenges that would lead him to be getting better would be getting a new job. A main cause of his depression is the loss of his job due to his constructive dismissal and the treatment he suffered at the hands of his former line manager and Respondent. The Respondent’s actions combined with the difficulties of depression and there not being many opportunities for other employment, have made obtaining a new job more challenging.

[39]He has been prescribed Mirtazapine 30mg and in addition to this his GP recommends over the counter sleeping tablets which he also takes. His medication may be changed in the future due to difficulties that he has sleeping. Without this treatment he would have an extremely low mood and not function at all or get out of bed which was common when he was on weaker medication and lower doses. He stated that he believes there is a risk that his suicidal ideations would be worse and there would be and increased risk of self harming and suicide. He has engaged with talking therapies but has not found this to help as he has found that it aggravates his anxiety and causes him a great deal of stress. The Respondent’s position and submissions on Disability

[40]The Respondent states that it understands that the Claimant says he began suffering from depression from 24 February 2023 and that the alleged discriminatory acts were from 15 March 2023 to 26 September 2023.

[41]The Respondent clarified its position on disability on receipt of additional medical documents provided by the Claimant on 5 August 2024.

[42]Having done so, as per its email of the 7 October 2024, the Respondent maintained that it did not concede that the Claimant was disabled as per section 6 of the Equality Act by reason of depression during the relevant period. The Respondent states that, in particular, this is the case in relation to the question of whether the condition he relies on was likely to last for twelve months or more at the time of the alleged discriminatory act/s.

[43]The Respondent also submits that both the Claimant, and his medical records, suggest that the condition was as a result of work-related issues and that if the issues at work resolved, or if he found a new job (which he was looking for from around April 2023), his health issues would resolve. The Respondent asserts that this is further demonstrated by the note in the records in May 2023 which refers to him being confident he would “find something soon”, indicating it was not expected that his condition would last 12 months or more at that date.

[44]The Respondent relies on J v DLA Piper UK LLP

2010 ICR 1052

, EAT, in which the EAT stated that, when considering the question of impairment in cases of alleged depression, Tribunals should be aware of the distinction between clinical depression and a reaction to adverse circumstances.

[45]The Respondent relies on Herry v Dudley Metropolitan Council

2017 ICR 610

, EAT, in which the EAT upheld an Employment Tribunal's decision that an employee was not disabled, even though he had to take a long-time off work because of stress, where his condition had been a reaction to difficulties at work rather than a mental impairment. It states that any medical evidence in support of a diagnosis of mental impairment should therefore be considered by an Employment Tribunal with great care. Where a person suffers an adverse reaction to workplace circumstances that becomes entrenched so that they will not return to work, but in other respects suffers no or little apparent adverse effect on normal day-to-day activities, this does not necessitate a finding of mental impairment.

[46]The Respondent relies on Saad v University Hospital Southampton NHS Trust and anor EAT 0184/14, in which the Claimant, who was a specialist registrar in cardiothoracic surgery, suffered from generalised anxiety disorder coupled with depression. An Employment Tribunal rejected his claims of disability discrimination on the basis that his impairment did not have a substantial and long-term adverse effect on his normal day-to-day activities. Inasmuch as being near or at his place of work caused him anxiety, the Tribunal found that this was more a contributory factor to his mental condition than a symptom of it in view of the deep sense of grievance he had formed about his employer and colleagues. He appealed to the EAT. The Eat found that the Tribunal had been entitled to conclude, on the evidence before it, that the requirements of section 6 Equality Act 2010 were satisfied.

[47]The Respondent relies upon Igweike v TSB Bank plc

2020 IRLR 267

, EAT, in which the EAT reiterated that a “distinction needs to be drawn between depression of a kind amounting to a disability under the EqA and an adverse reaction to life events” (such as stress brought on by allegations of misconduct or stress/depression triggered by a close family bereavement).

[48]The Respondent submits that the Claimant was not suffering from a long-term condition which gave rise to substantial adverse effects on day to day activities. Rather, the Claimant’s dissatisfaction with work and unhappiness with his change of role caused him to take up an entrenched position which gave him a negative outlook on work. It is submitted that, at the relevant time, although he was unhappy with work, it cannot be said that the Claimant was disabled. The Claimant’s statement and evidence seeks to conflate the issue of disability with his dissatisfaction with the Respondent. As per Saad v University Hospital Southampton NHS Trust, this is an erroneous approach to take.

[49]The Respondent acknowledges that the Claimant was off sick from end of March 2023 until his resignation took effect, and that he was prescribed antidepressants to aid with sleep and low mood. However, the Respondent does not accept that his condition was either substantially adverse or sufficiently longterm. This is because the medical evidence diagnoses the Claimant with an acute stress reaction. It also makes clear that his symptoms and mood are intrinsically linked to his issues with work, and that resolving those issues, or finding another job, would essentially be curative.

[50]The Respondent submits that during his absence the Claimant was well enough to apply for a number of new jobs, and attend interviews for the same. It submits that there is no indication that anything other than sleep, and appetite to a lesser extent, were negatively affected. Further, it is submitted that it is clear that great degree of his low mood was attributable to his living situation with his parents, and other stressors in his life, including various family illnesses. The Respondent submits that the Tribunal must not conflate an adverse reaction to a stressor/s to a disability (a condition which is has a substantial adverse effect on daily activities and is likely to last 12 months). The nature of a stress reaction to ordinary life events, such as unhappiness at work or family illness does not in this case constitute a disability.

[51]The Respondent submits that the Claimant’s impact statement is exaggerated when compared to the contemporaneous medical evidence. For example, he seeks to suggest he had suicidal thoughts/ideation which runs completely contrary to the medical position. Evidence Claimant’s oral

Evidence

[52]The Claimant provided a Disability Impact Statement on the 18 June 2024 which he adopted as his evidence in chief. In it he states that he had been and was still suffering from extreme depression and severe anxiety triggered from his job starting on 24 February 2023. He was emotionally distressed by the changes and the total lack of communication. From approximately 24 February 2023, he began experiencing difficulties with sleeping and eating and high levels of anxiety and stress, fear, and depression. His mental health and well-being were heightened to the extent he felt totally unwell and unable to cope with the pressures the Respondent was placing upon him.

[53]After the meeting of the 15 March 2023, his distress regularly meant that he was not to be able to sleep at all some nights. From 23 March 2023, he was unable to work due to lack of sleep. Around this time, he contacted 111 because of his low mood and contacted his GP for help. On 30 March 2023, he was issued a fit note for depression and anxiety by his GP. At that time his mood was extremely low. He often had no energy and would spend most of his time in bed and was unable to keep any sleep pattern. He was unable to live on his own due to these problems and he had to move back to my parent’s home. On 30 March 2023, he was threatened with disciplinary proceedings over his absence. This incident caused him extreme emotional distress with uncontrolled sobbing. At this time, he was regularly going up to 36 hours without sleep due to his anxiety. He had suicidal ideations and thoughts of self-harm.

[54]He met regularly with a mental health nurse to review his medications and symptoms and get an updated fit note.

[55]By the time that the Occupation Health assessment occurred, he was still experiencing low energy and having trouble with sleep, but he had settled on a medication that had helped.

[56]At the time that he resigned he was having suicidal ideations. Since then, due to his mental health, he has been struggling with sleep and depression and he is currently unable to find a job, which is, in part, due to the continuing poor state of his mental health though he has been trying to get a job. The disruptions to his sleep and energy levels have a significant impact on his quality of life. He is unable to live alone and does not leave the house. He currently has extremely limited social interactions. His mood is consistently low, and he has low energy with which to carry out normal everyday tasks. His sleep pattern is still disrupted, and he does not sleep some nights, and when he does sleep this can be during the day.

[57]In live evidence, the Claimant confirmed that he had previously suffered from depression when he was in the sixth form and at university. He was on medication for depression at that time. He started recovering from that in 2011 or 2012 and stopped taking the medication. He stated that he had undertaken cognitive behavioural therapy but he did not know for how long or how many sessions. I sought clarification from him as to whether had been any recurrence in his mental health problems between then and 2023. He replied that he had always struggled with low mood but had had not visited the doctor between those periods. As at the date of the hearing he continued to take mirtazapine 30mg. He has not worked since his employment with the Respondent ended.

[58]He was living in a rented property in Oxford but, on or around 27 March 2023, he moved up to Yorkshire to live with his parents. His tenancy agreement for the Oxford flat ran until December 2023 and he carried on paying rent for it until he handed the keys back in December 2023. I asked him what prompted him to move in with his parents. He stated that that he was not coping very well. In the days leading up to when he moved in with them, he had not got dressed, he stayed in bed all day, was not cooking and was not doing day to day tasks which he found exhausting. He was non-functional. He was not looking after himself and his parents insisted that he move back in so they could help care for him. He stated that prior to this period he had only had 5 days off sick in the past five years and his parents realised how depressed he was; they knew how serious it was. At the time that he moved back in with his parents he was not grooming his beard and things like that. He could not motivate himself. His parents try to motivate him and prod him to do things. He stated that his personal care has improved since the beginning of 2024. I asked the Claimant how he is with motivating himself to do activities now. He stated that he still struggles every now and then to motivate himself and enjoy activities.

[59]I asked the Claimant what specifically made him unable to work in March 2023. He stated that it was tiredness as he was not sleeping. He explained that he was struggling to do tasks in a timely manner because of concentration issues. It affected his inability to think quickly, his dexterity and his attention span.

[60]The Claimant confirmed that he had four job interviews between March and September 2023. He was not sure of the dates but thought they took place in the summer of 2023. Two of the interviews were in Leeds and two were by video. Family members drove him to the face to face interviews.

[61]In cross examination, the Claimant stated that he had not received treatment for his mental health problems other than from his GP practice. It was put to him that whilst his evidence is that he suffered from suicidal ideation and thoughts of self harm, his GP records tell a different story that is that he was not having suicidal thoughts. He stated that he did have thoughts of being better off dead on several days which was reflected in the PHQ9 of the 3 May 2023. He confirmed that these thoughts were not all of the time but rather specific instances. It was put to him that his GP records do not record that he was struggling with day to day activities such as cooking and cleaning. He replied that he was struggling with day to day activities when he was in Oxford but when he moved to live with his parents they were doing those activities in any event.

[62]The Claimant confirmed in cross examination that whilst he was off work sick he had made a choice not to return to work. The Claimant confirmed that his anxiety was connected with his nephew’s serious illness as well as an incident at work the end of April 2023 when he was threatened.

[63]He was asked if it was right that by May 2023 his health had significantly improved. The Claimant confirmed that there was an improvement; he would not characterise it as significant but there was an improvement. He confirmed that his grandad had become ill in July 2023 and that this was stressful. He was asked if it was the work issue that had caused him to be absent and he replied “yes”. Medical evidence

[64]The Statement of Fitness for Work (“Med 3”) issued by the Claimant’s GP stated that the Claimant was not fit for work because of stress and anxiety from the 29 March 2023 for 2 weeks. A further Med 3 was issued for one month on 12 April 2023 as a consequence of depression. A further Med 3 was issued on 3 May 2023 until 2 July 2023 as a consequence of anxiety and depression. Under the comments section the GP has added “work related and family srtress [sic]”.

[65]A further Med 3 was issued on 28 June 2023 until 27 July 2023 as a consequence of Depression NOS. Under the comments section the GP has added “seeing occ health”. A further Med 3 was issued on 28 July 2023 until 27 August 2023 as a consequence of Depression NOS. A further Med 3 was issued on 29 August 2023 until 20 September 2023 as a consequence of Depression NOS. A further Med 3 was issued on 21 September 2023 until 18 October 2023 as a consequence of Depression. A further Med 3 was issued on 18 October 2023 until 31 October 2023 as a consequence of Depression. A further Med 3 was issued on 1 November 2023 until 24 November 2023 as a consequence of Depression.

[66]The Claimant was prescribed Escitalopram at 10mg [104] in late March/early April 2023. The was later increased to 20mg [107]. He was switched from Escitalopram to Mirtazapine towards the end of June/beginning of July 2023. His dose of Mirtazapine was 15mg as of 15 August 2023 [112]. Some time later his dose was increased to 30mg. [113, 120]. He had been advised to take over the counter promethazine to help with sleep problems. He had previously been prescribed zopiclone for this but did not find it helpful.

[67]It can be seen from his GP records that the Claimant saw the practice mental health nurse, Joseph Gregory, on several occasions.

[68]On 28 March 2023 the Claimant phoned 111. The 111 service in turn made a report to his GP practice. The following is included in the 111 report: “Examination: stated he has been having difﬁculties since xmas with mood. Said he has been feeling down but tried to get on with it. On the 24th Feb 2023 had problems at work. He had a dispute with work regarding his contract and says was forced out of his position. He got upset with the situation. Been trying to go through legal situation and has got too much and been off side. Said he is struggling to cope and cannot sleep or eat properly. Been anxious and depressed. Said he has worked in the department for 7 years and came as shock to be functionally demoted from his work. Works in nhs doing research. […] Mood at the moment calm but on Thursday was not good and could not sleep. Not suicidal at the moment. In the afternoon he crashed as he was agitated and worrying about what he was going to do. When he thinks or talks about work gets him worked up and agitated. Sleep is broken. Appetite comes & goes not eaten properly at all. Some paranoia associated with people at his work, does not trust them. No voices. lmpr? Acute stress reaction in response to work stress/demotion. Not suicidal. Intends to go back to his parent?s [sic] in Yorkshire for support and to see his gp. He also plans to see local mental health services.”

[69]He spoke to the practice nurse on the 29/3/2023. The record states that the Appellant had previous been prescribed escitalopram in 2011. The Claimant is recorded as having a stress related problem. The practice nurse observed good engagement and that his speech rate and flow were okay but that his tone was somewhat flat and he was dysthymic. It is stated that he was not at risk of deliberate self harm and no suicidal thoughts. The Claimant informed the nurse that that were some uncertainties about his position still, and that he was on sick leave, could not face going in to work and was stressed and anxious. It noted difficulties with sleep when anxious and struggling with appetite when feeling overwhelmed.

[70]On 5 April 2023, he had a review appointment with the practice nurse. On that occasion the Appellant stated that work had been good until recently when he had been informed that he had been demoted at work. On his patient questionnaire his mood was recorded as low, that he stated that he had little interest or pleasure in doing things, was feeling down, depressed or hopeless, had trouble concentrating on things and had trouble sleeping and poor appetite nearly every day. The Claimant stated on this occasion that he was not having thoughts of suicide or self harm.

[71]On 12 April 2023, he had a review appointment with the practice nurse. The practice nurse observed good engagement and that his speech rate was okay but that his tone was flat, quiet and dysthymic. He reported feeling less anxious but depressed. His sleep was still poor but his appetite had improved. He reported that he was not sure what he wanted to do about work, that he felt an ongoing sense of frustration and uncertainty and that he could not see a resolution.

[72]On 12 April 2023, the practice nurse noted “I have pushed him to contact IAPT in addition to access their employment support advisors if nothing else”.

[73]On 26 April 2023, he had a review appointment with the practice nurse. The practice nurse observed good engagement and that his speech rate, flow and tone were okay. It is recorded that he continued to have difficulties with sleep. He reported that there had been no further response at work in relation to his grievance. He was applying for new jobs; he was clear that he would not return to previous role at lower banding. There is reference to him spending time with his family and being noticeably still positive, that he would like to increase reading, and that the loss of routine from being off work is a factor.

[74]On 3 May 2023, he had a review appointment with the practice nurse. He reported continued problems with sleep. There is reference to a family member having a recent significant illness. On his patient questionnaire his mood was recorded as low, that he stated that nearly every day he had little interest or pleasure in doing things, was feeling down, depressed or hopeless, felt tired or had little energy, had trouble concentrating on things, had poor appetite, felt bad about himself and was having trouble sleeping. The Claimant stated on this occasion that he was having thoughts of suicide or self harm several days a week.

[75]On 10 May 2023, he had a review appointment with the practice nurse. The practice nurse observed good engagement and that his speech rate, flow and tone were okay. This records ongoing worries in relation to family and stresses regarding work and that he has applied for some other jobs and is awaiting the outcome from these. He reported that he was having ongoing problems with sleep. It records that he is conscious of trying to support his family, and though perhaps not actively involved in care giving, he is doing some chores at home to ease pressure on others. He reported that otherwise he was spending his time largely engaged in passive activities such as reading, gaming and watching TV and that he would sometimes play with the dogs which he enjoys and that he is finding pleasure in spending time with his family.

[76]On 31 May 2023, he had a review appointment with the practice nurse. The practice nurse observed good engagement, that his speech rate, flow and tone were okay and that he was more euthymic perhaps than previously. He reported that he was still struggling with sleep, so feeling tired in the morning so struggling to maintain a morning routine. He reported that he had had some interviews recently and, whilst not successful, had had positive feedback and knew what he needed to work on. He has made the choice that he does not want to return to his previous role so was proactively thinking about next steps and was confident that he would find something new. He stated that whilst applying for jobs and attending interviews was anxiety provoking it had also been motivating and was giving him some sense of achievement. He reported that, overall, he felt that things were moving in the right direction steadily and that he was not in the same place than when he first spoke to the practice nurse.

[77]On 28 June 2023, he had a review appointment with the practice nurse. The practice nurse observed good engagement and that his speech rate and flow were okay but his tone was flat and he was dysthymic. He reported that he had applied for further jobs but had not had any further interviews and that he had a feeling of rejection perhaps impacting upon his self esteem. He reported loss of motivation perhaps, spending time in his room, avoiding others, and that his sleep remained erratic broken and unstructured. He reported that work is referring him to Occupational Health and that he still ultimately plans to leave.

[78]On 12 July 2023, he had a review appointment with the practice nurse. The practice nurse noted that observations were overall in keeping with previous consultations. No significant changes were reported. He continued to struggle to find new work and there was ongoing frustration with his current employer. His sleep patterns were still somewhat irregular and he was struggling to find things to fill his day, although trying to spend less time in his room and was perhaps reading more and spending time looking at lectures on YouTube.

[79]On 26 July 2023, he had a review appointment with the practice nurse. The practice nurse noted that observations were overall in keeping with previous consultations. It is recorded that there was no significant change, that there was ongoing work stress and that he is taking his employers to the Tribunal. Sleep remained difficult and he was struggling to talk to his family as he did not want to put pressure on them. He stated that he felt that that things would improve when he got a new job.

[80]On 23 August 2023, he had a review appointment with the practice nurse. The practice nurse recorded that observations were overall in keeping with previous consultations and that he had notably trimmed his beard since they last spoke. It is recorded that he had got no further with work grievance or looking for new jobs and this continued to cause him stress. It is recorded that sleep remained problematic and he was still struggling with routine and structure but is spending time with family. On 23 August 2023, the practice nurse wrote to a practice GP as follows: “Still ongoing low mood and poor sleep pattern -no significant changes overall-I am hopeful he will now look at Talking Therapies support as he does not feel he has got anywhere with Occ Health”.

[81]On 20 September 2023, he had a review appointment with the practice nurse. The practice nurse recorded observations overall in keeping with previous consultations and that his hair and beard were trimmed. It is recorded that the Claimant had ongoing frustrations with work. It states “Occ Health report completed and reflected on depression brought about by work stress -but no change as a result of this. Has a meeting with union rep tomorrow-he feels they will suggested [sic] resigning”. It records that he had had two interviews which were not successful and had a further interview on Monday. His sleep has been better since the increase in Mirtazapine, and is more or less back to where it was. He was still struggling to find things to do. He reported that he felt that resolving work issues would resolve how he felt ultimately.

[82]On 25 October 2023, he had a review appointment with the practice nurse. The practice nurse observed overall presentation as per previous discussion that is flat and dysthymic. He reported that he is feeling as low as he has ever felt; with ongoing frustrations around work, has now resigned and has been unsuccessful in finding new work so far. It is recorded that his sleep was broken again and that he is spending his time applying for jobs or gaming. It is recorded that “Continues to feel that getting a job would resolve things for him…”

[83]There is an Occupational Health report dated 31 August 2023 prepared by Dr Alex Mijares, Accredited Specialist in Occupational Medicine. Dr Mijares opinion was that, at that time, the Claimant was temporarily unfit for work. Dr Mijares states the following: “Mr Hickes reported that he has been experiencing substantial levels of stress which were affecting him psychologically. He reported that his perceived stress was exclusively consequence of work-related circumstances. During my assessment, he was completely open and honest, and it was my understanding that he has been trying to come to terms with the issues perceived.[…] During my assessment, Mr Hickes stated that his mood was low, his energy levels were impaired, his concentration and memory limited, and his sleep pattern disrupted. He also mentioned that his low mood and levels of anxiety were increased due to stress perceived in the workplace. Mr Hickes has been experiencing these symptoms to an unbearable extent for the last five months. These challenges are affecting, to a considerable extent, his overall wellbeing. […] Based on Mr Hickes descriptions and the information that I have currently, I believe that this situation is a medical problem that is consequence of work; in other words, this is a medicalisation of what otherwise is a managerial issue. Therefore, under these circumstances, the situation described would be considered a managerial issue that needs to be settled by exercising an active management approach. Management might consider options such as mediation in order to explore alternatives that would be satisfactory to all parties involved and facilitate a return to work. The longer it takes for a mutually satisfactory resolution of the problem to be reached, the longer this sickness absence will persist. […] There is a mental health condition that has been made worse by a reported unresolved work-related conflict.”

[84]Dr Mijares stated that based on the information provided by the Claimant he was unable to provide comments in relation to potential recovery timescales. The report identified key work related stressors and recommended that a stress risk assessment be undertaken in order to clarify the Claimant’s concerns and agree further steps to address the issues as well as regular one to one meetings with management. In the report it states“ “Is there any evidence that the work environment is contributing to sickness absence? If so what adjustments may be beneficial? Management recognised that there was a work-related conflict and it was the cause of this person’s current sickness absence. Is there an underlying medical condition that accounts for this attendance record? There is a mental health condition that has been made worse by a reported unresolved work-related conflict. Is the Equality Act 2010* likely to be applicable? *i.e there is a condition or impairment which affects activities of daily living and has lasted or is likely to last for more than 12 months. Please note that this is a legal rather than a medical decision.” Dr Mijares ticked the ‘yes’ box in response to this question.

[85]It is recorded in a letter from the Claimant’s line manager, Avianna Laws, to the Claimant that the Claimant requested minimal contact from the Respondent due to work making him feel stressed. The Relevant Law Disability

The Relevant Law

[86]It is for the Claimant to prove that he was a disabled person at the relevant time.

[87]Section 6(1) of the Equality Act 2010 (“EqA”) states that: “6 Disability (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”

[88]Paragraphs 2(1) and (2) of Schedule 1 to the EqA provide, in relation to longterm effects, as follows: “2 Long-term effects(1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (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.

(2) 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.”

[89]In determining whether a person is disabled for the purposes of the EqA, the Tribunal is required to take into account the Guidance that is issued under section 6(5) and paragraphs 10 and 11 to schedule 1 of the EqA. The Guidance is entitled Equality Act 2010 - Guidance on matters to be taken into account in determining questions relating to the definition of disability (“the Guidance”). The Tribunal is required to take into account this guidance in so far as it is relevant when determining whether a person is disabled within the meaning of the EqA. Under s15(4) of the Equality Act 2006, a court or tribunal must also take into account the Equality and Human Rights Code of Practice on Employment (2011) (“the Code”) in any case where it appears to be relevant.

[90]In Goodwin v Patent Office [1999] I.C.R. 302, guidance was provided on the general approach that the Tribunal should adopt when applying the provisions of the Disability Discrimination Act 1995. There were four questions to be answered by the Tribunal in order. This four-stage approach was approved more recently by the Court of Appeal in Sullivan v Bury Street Capital Limited

[2021] EWCA Civ 1694

, where the questions were listed as follows: i. Was there an impairment? ii. What were its adverse effects on normal day-to-day activities? iii. Were they more than minor or trivial? iv. Was there a real possibility that they would continue for more than 12 months?

[91]These are questions for the Tribunal. Although it may be assisted by medical evidence, it is not bound by any opinion expressed.

[92]The relevant point in time to be looked at by the Tribunal when evaluating whether the claimant is disabled under section 6 is not the date of the hearing, but the time of the alleged discriminatory act(s) [Cruickshank v Vaw Motorcast Ltd [2002] I.C.R. 729 and All Answers Limited v Mr W(1) and Ms R (2),

2021 EWCA Civ 606

]. A Tribunal cannot consider what has happened since the relevant period, it must focus on the Claimant during the relevant period. Impairment

[93]The Guidance states, at A5: “A disability can arise from a wide range of impairments which can be: […] impairments with fluctuating or recurring effects such […] depression […]; mental health conditions with symptoms such as anxiety, low mood, panic attacks, phobias, or unshared perceptions; eating disorders; bipolar affective disorders; obsessive compulsive disorders; personality disorders; post-traumatic stress disorder, and some self-harming behaviour; mental illnesses, such as depression and schizophrenia; […]

[94]Depression is therefore capable of being a mental impairment and so potentially capable of constituting a disability, subjecting to meeting the key tests as identified in Goodwin v Patent Office. In the DLA Piper case, the Employment Appeal Tribunal decided that, when considering the question of impairment in cases of alleged depression, the Tribunal should be aware of the distinction between clinical depression and a reaction to adverse circumstances. While both can produce symptoms of low mood and anxiety, only the first condition should be recognised as a disability. The EAT has reiterated the importance of the distinction between depression of a kind amounting to a disability under the EqA and an adverse reaction to life events, such as work related stress, in Herry v Dudley Metropolitan Council

UKEAT/0100/16/LA

and Mr I Igweike v TSB Bank Plc:

UKEAT/0119/19/BA

. In Herry v Dudley Metropolitan Council, the EAT noted [at paragraph 56] that reactions to adverse circumstance are not normally long lived, but that: “ […] there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day-to-day activities. A doctor may be more likely to refer to the presentation of such an entrenched position as stress than as anxiety or depression. An Employment Tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by an Employment Tribunal) are not of themselves mental impairments: they may simply reflect a person’s character or personality. Any medical evidence in support of a diagnosis of mental impairment must of course be considered by an Employment Tribunal with great care; so must any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee’s satisfaction[…]”; What is “substantial”?

[95]Section 212 EqA defines “substantial” as being more than minor or trivial.

[96]Paragraph 5 of Schedule 1 to the EqA states that: An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if: -measures are being taken to correct it, and -but for that, it would be likely to have that effect. ‘Measures’ includes, in particular, medical treatment and the use of a prosthesis or other aid.

[97]The Guidance states that “medical treatment” includes treatments such as counselling and therapies in addition to drug treatments.

[98]This provision applies even if the treatment results in the effects being completely under control or not at all apparent. There are, however, situations where medical treatment may create a permanent improvement or “cure”. In such situations it may be necessary to consider whether the effects of the impairment are or were sufficiently “long term”. Alternatively, where treatment is continuing it may be having the effect of “masking” or ameliorating a disability so that it does not have a substantial adverse effect. If the treatment simply delays or prevents a recurrence, and a recurrence would be likely if the treatment stopped, then the treatment is to be ignored and the effect is to be regarded as likely to recur [C11]. If the final outcome of such treatment cannot be determined, or if the evidence establishes that removal of the medical treatment would result in either a relapse or a worsened condition, it would be reasonable to disregard the medical treatment [B13].

[99]In Rayner v Turning Point [2010] 11 WLUK 156, HHJ McMullen QC held, at paragraph 22, that although the question of whether there is a “substantial” adverse effect is a matter of fact for the Tribunal to determine, in circumstances where a claimant was diagnosed with anxiety by his GP and his GP advises him to refrain from work, that is, in itself, evidence of a substantial effect on day-today activities, because were it not for the anxiety the claimant would have been at work, and day-to-day activities include going to work.

[100]The Guidance states that the requirement that an adverse effect on normal dayto-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people [B1]. Any inconsistency must be resolved in favour of the statute.

[101]Appendix 1 to the Code also provides guidance on the meaning of “substantial”. It says, “Account should… be taken of where a person avoids doing things which, for example, causes pain, fatigue or substantial social embarrassment; or because of a loss of energy and motivation.”

[102]Whether an impairment has a substantial effect is for the Tribunal to decide, taking account of the relevant Guidance.

[103]The Secretary of State’s Guidance sets out a number of factors to consider including: the time taken by the person to carry out an activity [paragraph B2]; the way a person carries out an activity [B3]; the cumulative effects of an impairment [B4]; the cumulative effects of a number of impairments [B5/6]; the effect of behaviour [B7]; the effect of environment [B11] and the effect of treatment [B12]. What are “normal day to day activities”?

[104]“Day to day activities” encompass activities which are relevant to participation in professional life as well as participation in personal life. The Tribunal should focus on what a claimant cannot do, not what they can do.

[105]The Guidance provides the examples of what is meant by “normal day to day activities”. In general, day-to-day activities are things people do on a regular or daily basis, and examples include 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 [D3]. Normal day-to-day activities can also include general work-related activities such as interacting with colleagues [D3].

[106]Day to day activities can include a person’s ability to cope in their job [Paterson v Commissioner of Police of the Metropolis

[2007] ICR 1522

[107]The term ‘normal day-to-day activities’ is not intended to include activities which are normal only for a particular person, or a small group of people. In deciding whether an activity is a normal day-to- day activity, account should be taken of how far it is carried out by people on a daily or frequent basis. In this context, ‘normal’ should be given its ordinary, everyday meaning [D4]. It is not necessary, however, that ‘most people’ carry out the activity. However, if the condition also affects day to day activities to a substantial degree, those will still be relevant. What does ‘long term’ mean?

[108]Schedule 1, part 1, para. 2 of the EqA defines “long-term” as follows:(1) The effect of an impairment is long-term if - (a)it has lasted for at least 12 months, (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.

(3) For the purposes of sub-paragraph (2), the likelihood of an effect recurring is to be disregarded in such circumstances as may be prescribed.

(4) Regulations may prescribe circumstances in which, despite sub-paragraph (1), an effect is to be treated as being, or as not being, long-term.

[109]The degree of likelihood of a substantial adverse effect is that it “could well happen” as per Boyle v SCA Packaging Ltd (Equality and Human Rights Commission intervening)

2009 ICR 1056

, HL.

[110]The Guidance states that conditions with effects that recur only sporadically or for short periods can still qualify as long term impairments for the purposes of the Act. If the effects on normal day to day activities are substantial and are likely to recur beyond 12 months after the first occurrence, they are to be treated as longterm. The Guidance sets out examples of impairments with effects which can recur beyond 12 months, or where the effects can be sporadic [C5 and 6].

[111]The Guidance states that it is not necessary for the effect to be the same throughout the period which is being considered in relation to determining whether the ‘long-term’ element of the definition is met [C7].

[112]The Guidance sets out what should be considered in relation to the likelihood of recurrence. Essentially all circumstances should be taken into account including the way in which a person can control or cope with the effects of an impairment, which may not always be successful [C10].

[113]In Royal Bank Of Scotland Plc v Morris (Race Discrimination: Direct)

[2011] UKEAT 0436_10_1910

, the Employment Appeal Tribunal observed that whilst there is no rule of law that the burden of proving disability can only be discharged by adducing first-hand expert evidence, “in cases where the disability alleged takes the form of depression or a cognate mental impairment, the issues will often be too subtle to allow it to make proper findings without expert assistance on […] issues such as likely duration, deduced effect and risk of recurrence[…]”.

[114]How long an impairment is likely to last must be considered as at the time of the alleged discriminatory act not at the date of the Tribunal hearing [McDougall v Richmond Adult Community College

2008 ICR 431

, CA]. A Tribunal cannot consider what has happened since the relevant period, it must focus on the position during the relevant period. Jurisdiction - Time Limits

[115]Section 7 of The Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994/1623 provides the time limit for making a breach of contract claim in the Tribunal and reads as follows: 7. Subject to article 8B, an employment tribunal shall not entertain a complaint in respect of an employee's contract claim unless it is presented-(a) within the period of three months beginning with the effective date of termination of the contract giving rise to the claim, or

(b) where there is no effective date of termination, within the period of three months beginning with the last day upon which the employee worked in the employment which has terminated, or (ba) where the period within which a complaint must be presented in accordance with paragraph (a) or (b) is extended by regulation 15 of the Employment Act 2002 (Dispute Resolution)Regulations 2004, the period within which the complaint must be presented shall be the extended period rather than the period in paragraph (a) or (b).

(c) where the tribunal is satisfied that it was not reasonably practicable for the complaint to be presented within whichever of those periods is applicable, within such further period as the tribunal considers reasonable.

[116]In Capek v Lincolnshire County Council

2000 ICR 878

, CA, the Court of Appeal decided that an Employment Tribunal has no jurisdiction to deal with breach of contract claims that are presented prior to the termination of the contract. This applies even if the claim relates to matters arising prior to termination that are still outstanding at the date of termination. My Conclusions relating to Jurisdiction

[117]As the issues relating to the timing of the claim and Early Conciliation go to the jurisdiction of the Employment Tribunal, I must be satisfied that the relevant requirements are met whether or not this is disputed by either party.

[118]In relation to the timing of the presentation of the constructive unfair dismissal complaint, the position that the Respondent now takes is clearly correct, given that section 111(3) ERA 1996 allows for proceedings to be issued after notice is given but before the effective date of termination. The Tribunal therefore has jurisdiction to determine the constructive unfair dismissal claim.

[119]However, the time limit provisions relating to breach of contract complaints at paragraph 7 of The Employment Tribunals Extension of Jurisdiction (England and Wales) Order do not contain an equivalent clause allowing proceedings to be issued after notice is given but before the date that the contract ends. Consequently, applying Capek v Lincolnshire County Council, because the claim was lodged with the Tribunal before the effective date of termination, the Tribunal has no jurisdiction to deal with the breach of contract claim.

[120]The Acas Early Conciliation certificate covers the period from 24 July 2023 to 4 September 2023. The end date of the certificate is therefore prior to the Claimant’s resignation on the 26 September 2023. As per Compass Group UK & Ireland Ltd v Morgan

[2016] IRLR 924

an Early Conciliation certificate is not necessarily limited to events predating the certificate. It is a question of fact and degree whether proceedings subsequently instituted relate to the matter for which Early Conciliation occurred.

[121]Having considered the chronology of events and documentary evidence before me, it is clear that the Acas certificate was obtained by the Claimant in anticipation of the issuing of these proceedings. I therefore find that there was sufficient connection between the matters to which the certificate related and the subsequent claim for unfair dismissal. The Claimant has therefore complied with the relevant Early Conciliation requirements and not precluded from proceeding with his claim on this basis. My Conclusions relating to Disability

[122]The Respondent submitted that there was some degree of exaggeration in the Claimant’s evidence relating to the extent to which his mental health problems had impacted upon on him during the relevant period. I did not find that to be the case. I found his evidence to be measured, given without hesitation, appropriate in its detail and broadly internally and externally consistent. In terms of the suggestion that the Claimant exaggerated the extent of any suicidal ideation, I did not find that to be the case. The clarification that he provided in oral evidence is not inconsistent with what is recorded in his medical records. It is not unusual for there to be variability in symptoms and the severity of mental health conditions and the Claimant did not say that he continually suffered from suicidal thoughts.

[123]Around or before 2011, whilst he was in the sixth form/at university, the Claimant was prescribed medication for mental health problems. Later, in 2011 or 2012, his mental health improved and he stopped taking that medication. He has previously had cognitive behavioural therapy. He has never received in patient treatment for mental health problems and has never been subject to any order under the Mental Health Act 1983.

[124]In the five years leading up to March 2023, the Claimant had had only had five days off work sick.

[125]On 28 March 2023 the Claimant phoned 111. He reported difficulties with his mood from the previous Christmas. The report states “Acute stress reaction in response to work stress/demotion. Not suicidal.”

[126]The Claimant subsequently attended and received treatment from his GP practice and was continually certified as unfit for work from 29 March 2023 to the effective date of termination. He was certified as unfit for work because of mental health problems which were referred to variously in the certificates as “stress and anxiety”, “depression”, “anxiety and depression” and “depression NOS”.

[127]The Appellant was prescribed medication for his mental health problems. He was initially prescribed Escitalopram with an increase in dosage before being switched to Mirtazapine 15mg in June/July 2023 increased to 30mg some time later. He experienced some improvement from how he was in March 2023 as a consequence of the medication that he was prescribed during the relevant period. He was offered talking therapies but declined these. He continues to be prescribed Mirtazapine 30mg. Was there an impairment?

[128]The Claimant was diagnosed with depression by his GP as recorded in his fitness for work certificate on 12/4/2023. In some, but not all, of the certificates there is also reference to anxiety. Whilst the first fitness for work certificate did not cite depression, all subsequent certificates do cite to depression.

[129]The Respondent asserts that there was no impairment in this case: rather the Claimant was experiencing a reaction to adverse life events, predominantly work related events and also because of the ill health of relatives. I do not accept that the evidence before me shows this to be the case. This is for the following reasons.

[130]When the Claimant first contacted 111, it was recorded that the impression was that it was an acute stress reaction to work stress/demotion. When the Claimant’s GP initially signed him off sick, it was because of stress and anxiety and recorded as a “stress related problem” in the entry for the 29/3/2023. However, it can be seen that he was subsequently diagnosed with depression on the 5/4/2023. There is reference to “ongoing depression” in the entry on 12/4/2023 and all subsequent certificates refer to depression. It is also clear from what is recorded in the GP records that the Claimant had regular follow up appointments with the practice nurse to monitor his mood. Given the resource issues which most GP surgeries experience, it seem to me very unlikely that he would have been seen so regularly had he only been experiencing work related stress rather than having an ongoing mental health condition.

[131]Further, in his occupational health report, in response to the question “Is there an underlying medical condition that accounts for this attendance record?” Dr Mijares states “There is a mental health condition that has been made worse by a reported unresolved work-related conflict.” [my emphasis] This is weighty evidence of the mental health condition being distinct from the work related issue, albeit made worse by it. Whilst an adverse reaction to a life event would not in itself be an impairment, that does not automatically preclude a person who has a mental health condition caused by or made worse adverse circumstances from having an impairment within the meaning of section 6 EqA.

[132]Therefore, having considered all of the evidence before me in the round, and, in particular the extensive medical evidence before me, I am satisfied that from 12/4/2023 to the effective date of termination, the Claimant had a mental impairment, that is depression, within the meaning of section 6 EqA. What was the impact of the impairment on normal day-to-day activities?

[133]From the 12/4/2023, the Claimant was deemed unfit for work by his GP as a consequence of depression. He explained in live evidence that his reason for going off sick was that he had noticed that he was not, as he described it, running on a full battery and it was impacting upon what he could get done at work. He was struggling to do tasks in a timely manner because of concentration issues and inability to think quickly. It affected his dexterity and he did not have the attention required to do the work. As per Paterson v Commissioner of Police of the Metropolis, day to day activities can include a person’s ability to cope in their job. On the facts of this case, on the evidence before me, I find that the Claimant’s depression adversely impacted upon his ability to work because it affected his concentration and speed of cognition.

[134]It can be seen from the Claimant’s GP records that the Claimant’s depression had a significant impact upon his ability to sleep and this was something that he particularly struggled with. I consider that sleep is a normal day to day activity. Further, an inability to sleep or interrupted sleep patterns can significantly impact on a person’s ability to undertake daily living tasks through tiredness. The Claimant’s difficulties with this activity appears from the medical evidence to have been caused by his depression.

[135]The Claimant explained in live evidence that he left his own accommodation and went to live with his parents in March 2023. He explained that they were concerned about his wellbeing and his ability to motivate himself to provide for his own personal care. I accept his evidence in this respect which is entirely consistent with the medical evidence before me. In the 111 report there is reference to the Claimant struggling to cope, not being able to eat properly, not being able to sleep to and that he intends to go to his parent’s home in Yorkshire to access support.

[136]I accept the Claimant’s evidence that, from around 27 March 2023, he was struggling to motivate himself to look after himself. At that time, he reported difficulties with concentrating on things, trouble sleeping and poor appetite. It can be seen from the records from his appointments with the practice nurse that his mood, symptoms and the impact of both on his ability to undertake various daily living activity varied from appointment to appointment. It appears that by May 2023 there had been some improvement. However, as of 23 August 2023, the practice nurse recorded ongoing low mood and poor sleep pattern. This appears to have resulted in the need to increase the dosage of his mirtazapine. On 25 October 2023 he was observed to be flat and dysthymic.

[137]The Claimant’s evidence is that he struggled with activities involving personal care until the beginning of 2024 and that since then there has been an improvement. This is consistent with the other evidence before me. In particular I note that the practice nurse observed and recorded changes in personal care, such as noting that the Claimant had trimmed his beard at one point, which suggests that he was not doing so previously.

[138]The Claimant’s evidence was that at the relevant time he struggled with motivating himself to undertake day to day activities. His evidence in this respect is entirely consistent with the medical evidence before me. The Respondent submits that by the summer of 2023, the Claimant was not struggling with day to day activities as he was applying for jobs and attending job interviews. This does indicate that there had been some improvement in motivation and function compared to March 2023. However, he did not succeed in any of those job applications. Two interviews were by video and the two that were in person he was taken to by car by a family member. Therefore, I do not consider that this necessarily demonstrates that he had no difficulties with day to day activities on an ongoing basis. This is especially so given that there can be variability from day to day in the impact that mental health conditions have on an individual’s ability to function. In addition, it can be seen from the GP records that the symptoms of low mood persisted in August 2024 and beyond.

[139]I found it notable that the Claimant continued to live with his parents in Yorkshire even though he continued to be liable for rent on his own property until December 2023. This is consistent with his claim that he was struggling to motivate himself to undertake day to day activities for himself and that he needed his parents to prompt and encourage him to undertake day to day activities and to help him with daily living activities. Are the adverse effects substantial?

[140]The Appendix to the Guidance provides a non exhaustive list of factors which, if experienced, would be reasonable to regard as having a substantial adverse effect on normal day to day activities. This list includes persistent general low motivation or loss of interest in everyday activities persistent distractibility or difficulty concentrating.

[141]I am satisfied that depression had an adverse effect on the Claimant’s ability to motivate himself to undertake a range of day to day activities because of low motivation and loss of interest. Anxiety affected his sleep. Further his ability to work was adversely affected by his difficulties with concentration and dexterity. On the evidence before me I am satisfied that the adverse effects of the Claimant’s depression were substantial at the relevant time.

[142]The Claimant was prescribed medication at the end of March or beginning of April 2023. It can be seen that this was monitored by the practice nurse and his GP increased/changed his medication over the subsequent months.

[143]On the basis of the medical evidence before me it can be seen that there was some improvement in the Claimant mental health from May 2023 onwards and he was having less difficulty with certain, but not all, day to day activities. However, by this point he had been prescribed medication to treat his mental health condition for around a month. I am satisfied on the evidence before me that the medication that he was prescribed in 2023 was a measure being taken to treat his depression. I am also satisfied that it is likely that, but for that medication, there may not have been the same level of improvement in his mental health from around May 2023 onwards. That being so, and as medication was continued, it seems likely that the Claimant’s depression, if it had remained untreated would have been likely to have continued to affect his ability to carry out day-to-day activities to a greater extent without the prescribed medication. Did the Claimant have a ‘Long Term” condition at the relevant time?

[144]I have found that the Claimant had the impairment of depression from 12/4/23 and it continued to the effective date of termination, that is the 26/11/23. Therefore, by that point, the Claimant had had the impairment for a period of 7 ½ months.

[145]The question that then arises is whether the effect of an impairment was longterm. It is long term if it has lasted for at least 12 months, if it is likely to last for at least 12 months, or if it is likely to last for the rest of the life of the person affected.

[146]The impairment had not lasted for 12 months by the effective date of termination, the last possible date upon which a discriminatory act could have occurred in this case. It had only lasted for 7 ½ months.

[147]I have considered whether the impairment could be considered to be recurring given the previous period of mental health problems that the Claimant experienced in 2011/2012. I find that it is not for the following reasons. There is a paucity of evidence before me to demonstrate the nature and extent of the Claimant’s previous mental health problems in 2011/2012 and so I cannot be satisfied on the evidence before me that they had a substantial adverse effect on the Claimant’s ability to carry out normal day-to-day activities at that time. Further, and in any event, those previous mental health problems occurred around 11 years prior to the Claimant having been diagnosed with depression in 2023. His own evidence is that prior to March 2023 he had only had five 5 days off sick in the prior five years. Therefore, even if a mental condition had a substantial adverse effect on the Claimant’s ability to carry out normal day-to-day activities in 2011/2012, this subsequently ceased occur and the evidence before me does not demonstrate that it could have been said at that time that they were likely to reoccur.

[148]I therefore need to decide whether as of the 26/11/23 that it could well happen that the substantial adverse effect of the impairment would continue for a further 4 ½ months.

[149]I am required to consider how long an impairment is likely to last as at the date of the alleged discriminatory act, not the date of the Tribunal hearing. This means that I cannot take into account what happened after 26/11/23, in particular whether the impairment did, as in this case, continue after that date.

[150]There is no prognosis in relation to depression contained in the Claimant’s GP records. There is no expert medical evidence before me addressing this point. The only evidence from a medical professional touching on whether or not the impairment is long term is in Dr Mijares report in which he ticks a box to confirm that it is the impairment “affects activities of daily living and has lasted or is likely to last for more than 12 months”. However, Dr Mijares provide no further reasons for reaching this conclusion or explanation as to why he reached that conclusion, so, in isolation, I consider this statement to be of only very limited evidential value.

[151]It is also notable that the Claimant told those treating him on several occasions that he considered that sorting out his work situation would resolve his mental health problems. He did so on 20/9/2023 and 25/10/23.

[152]Given the nature of depression generally, and as the Claimant’s mental health problems were undoubtedly linked to his work related situation, on the evidence before me, I am not satisfied, even to the lower standard that it could well happen, that the Claimant’s depression would continue to have a substantial adverse effect on day to day activities for a further 4 ½ months subsequent to the 26/11/23. The burden of proof is on the Claimant to demonstrate this. He has not done so. The evidence before me is insufficient to discharge that burden. In the circumstances, the Claimant has not shown that he had a long term impairment at the relevant time.

[153]The Claimant was therefore not disabled within the meaning of section 6 EqA at the relevant time. Approved by: