Ms J Barnes v Coca-Cola Europacific Partners Great Britain Ltd: 3311921/2023

EMPLOYMENT TRIBUNALS

Case No 3311921/2023

Between

Ms J BarnesClaimant

Coca-Cola Europacific Partners Great Britain LtdRespondent

Before

Employment Judge Shastri-Hurst

Mr MacDonald (instructed by counsel) for claimant

Ms Tutin (instructed by counsel) for respondent

Date 13 October 2025

JUDGMENT

[1]The claimant was disabled by way of depression at the material time, that being 29 November 2022 to 16 July 2023.

[2]The claimant was disabled by way of Adult ADHD at the material time, that being 29 November 2022 to 16 July 2023.

REASONS

[1]The claimant was employed by the respondent from 30 March 1998 to 7 June

[2]The claimant undertook the ACAS early conciliation process between 6 July 2023 and 17 August 2023. The claim form was presented on 15 September 2023, containing claims of unfair dismissal, disability discrimination, notice pay and holiday pay.

[3]A case management preliminary hearing took place on 3 September 2024 in front of Employment Judge Skehan. At that hearing, the matter was listed for a final hearing from 26 January 2026 to 2 February 2026 (six days).

[4]A further preliminary hearing took place on 1 November 2024, heard by Employment Judge Housego. At that hearing, the parties produced an Agreed List of Issues which remains the relevant List of Issue in these proceedings, and clarified that the heads of claim raised in this case are: 4.1. Unfair dismissal; 4.2. Wrongful dismissal; 4.3. Disability discrimination, namely; 4.3.1. Discrimination arising from disability; 4.3.2. Indirect disability discrimination; 4.3.3. Failure to make reasonable adjustments; 4.3.4. Harassment related to disability; 4.4. Victimisation.

[5]At that stage, it was considered sensible to list a third preliminary hearing to deal with the question as to whether or not the claimant was a disabled person at the material time of her claim. Hence the matter was listed for three hours today.

[6]I had the benefit of a bundle of 228 pages: page X in the bundle is referred to as [X] in this judgment. I also had skeleton arguments from both counsel, for which I am grateful. The claimant gave evidence in line with her disability impact statement and was cross-examined accordingly. Both counsel added to their written submissions with oral submissions. Given that the hearing was only listed for 3 hours, and the above outlined process took us until 1250hrs, I reserved my judgment on the matter of disability.

Issues

[7]Within the Agreed List of Issues, and in relevance to the hearing today, the following issues appear:

[14]Did the claimant have a physical or mental impairment(s) at the material time i.e. between 29 November 2022 and 7 June 2023? The impairments relied on by the claimant are:(a) Depression (November 2022 – ongoing) and/or

(b) (Adult) Attention Deficit Hyperactivity Disorder (“ADHD”).

[15]Did the impairments (or either of them) have a substantial adverse effect on the claimant’s ability to carry out normal day to day activities, at the material time?

[16]Is the effect of the impairment(s) long term, meaning it had lasted for at least 12 months or was likely to do so, at the material times? 8. Although the time frame cited in the list of issues is set out as 29 November 2022 to 7 June 2023, in truth the end point is later in the summer of 2023. 7 June 2023 is the date upon which the claimant’s employment was summarily terminated. However, the claimant’s last factual complaint in time is that the respondent failed to respond to the claimant’s appeal against disability. As such, the relevant time frame for me to consider regarding the claimant’s disability status goes somewhat further into the summer of 2023 than 7 June. More on this below. The respondent’s position 9. In response to the Tribunal’s orders, the respondent set out its position on the disability status of the claimant on 15 October 2024 – [195]. 10. In terms of depression, the respondent accepts that there is a diagnosis from January 2023. However, the respondent does not admit that the impairment was sufficient to meet the test for disability. It particularly set out in its response that it did not admit that the impairment had lasted throughout the period of alleged discrimination, or was likely to last for at least 12 months. 11. In terms of ADHD, again the respondent accepts that there is a diagnosis from June 2023. However, it denies that the ADHD meets the definition of disability, specifically referencing that it does not admit that the ADHD had a substantial adverse effect on her ability to carry out normal day-to-day activities. Findings of fact 12. The claimant was employed by the respondent from March 1998. She was a member of the Sales Team until October 2021, when she was seconded to the respondent’s People & Culture (HR) Team, undertaking managerial responsibilities. The claimant was successful in applying for a permanent managerial role within that team, and started as Manager, People & Culture Business Partner from 14 March 2022. 13. For two years prior to her secondment, the claimant undertook a 2 year CIPD course alongside her full time role within the Sales Team. During the time of that course, the claimant worked 4 days a week, and was released for study leave on the fifth day. The course was mainly online remote learning, with the occasional group session every couple of months. The course culminated in an assessment that the claimant successfully passed on her second attempt. 14. The claimant explained that, historically whilst in the Sales Team, she had struggled to take in information from training courses: she explained that the difficulty came when there was a volume of information that she was expected to absorb. She found it difficult to retain the information. She was however supported by her colleagues and would take copious notes to which to refer back. She used the same note-taking strategy during her CIPD course: that strategy was successful, but time consuming and required her to work longer hours. 15. Another particular issue that the claimant had difficulty with whilst on the Sales Team was reporting deadlines. Her colleagues would help by reminding her of set deadlines as she was forgetful with deadlines. Changing teams 16. Despite the difficulties that the claimant experienced whilst on the Sales Team, as set out above, the claimant was able to cope and evidently did her job well within that team.

Findings of fact

[17]Her difficulties became more apparent to her when she moved to the HR Team. The time pressures placed on the claimant compounded the problem with her concentration and focus – disability impact statement paragraph 28 [75]. In her oral evidence, the claimant explained that the problems came from not having the same level of support from her colleagues in the HR Team, and also the tasks she was undertaking were complex, with new ways of working and new data systems to which she needed to adapt. It took her time to find data, as she was new to the HR Team systems. The claimant explained that she was familiar and competent with the Sales Team platforms and data, whereas it took her time, asking colleagues and searching herself, to find the necessary data and platforms. She also considered that there was a lot more individual information and detail within the HR Team when compared with the Sales Team.

[18]It was put to the claimant that her performance in the HR Team was marked as “working towards success”, which is one of the lower ratings on the respondent’s appraisal scale, and that in fact the reality was that she was just not well suited to a role in the HR Team. The claimant vehemently denied this suggestion, stating that the role in the HR Team matched her skill set and that her line manager in the HR Team said that she did not doubt the claimant’s capability, but could not understand what was wrong. Medical information

[19]I note that it is recorded in the claimant’s medical records that she has “active problems” of Attention Deficit Hyperactivity Disorder from 1 August 2023, and Depression and Stress at Work from 5 January 2023 – [77].

[20]The claimant was subject of an End of Year Appraisal on 29 November 2022 at which she was marked as “Working Towards Success”. This appraisal forms the basis of some of the claimant’s claims to the Tribunal. Following this review, the claimant took some holiday leave and then from 6 December 2022 was off on sick leave.

[21]On 6 (recorded as 7) December 2022, the claimant attended an appointment with her GP – [90]. in the GP notes, they have recorded the following: “No suicidal ideation or thoughts of self-harm. … No significant history of mental health problems. Long history of problems with attention and difficulty at school and work. She reports that this [has] culminated over the last 2 months in significant anxiety and apprehension regarding her current employment. … She does describe symptoms that may be suggestive of ADHD such as difficulty remembering certain appointments, difficulty completing a project, procrastination and fidgeting. She does not describe significant features of depression although does have some features. … Given her ongoing difficulties and concern regarding possible lateral ADHD agreed private referral for assessment.”

[22]Following that appointment on 6 December 2022, the GP referred the claimant to a psychiatrist/psychologist – [162]. The referral repeats the detail cited immediately above from the GP’s note.

[23]The claimant was asked in cross-examination about the reference to “the last 2 months” in that 6 December 2022 entry: it was put to her than any feelings of low mood only started in around October 2022, as opposed to the August 2022 date that the claimant had recorded in her disability impact statement. The claimant explained that by the time she went to her GP she was at breaking point: she is not someone who goes to the GP often, and waited until she was not coping before attending the surgery. The claimant had a specific memory of being in Cornwall in August, a holiday which she often enjoys at that time of year, but instead of enjoying it, she felt extremely low. I find the specific reference to the claimant’s emotional state on her annual holiday to be a persuasive one in terms of identifying the point in time at which her mood had become low. I accept this evidence and find that her mood was low in August 2022.

[24]In January 2023, the claimant had a telephone assessment with the respondent’s occupational health team – [173]. The referral had been made as the respondent considered that there had been a decline in the claimant’s performance over the past 10 months (since she moved to the HR Team), and then the claimant was signed off with stress at work in December 2022, and later with depression from 5 January 2023. In the OH report, the following is stated: “…she has discussed her perception of the work aggravated concerns in relation to her adjusting to her new role within a small team from last year, whereby she was finding out and understanding her role with no support that was then followed by a negative appraisal with no positive feedback, towards then end of last year”.

[25]The claimant told the OH professional that she was not sleeping well and was fatigued. She also complained of low mood, being socially withdrawn, and her concentration being distracted. At this point in time, the claimant was on Sertraline and looking to engage with Talking Therapies. The claimant’s account of this time is that the difficulties at work “made my ADHD come to light – I believe it was my ADHD symptoms in this role that led to my depression”.

[26]In late January 2023, the claimant raised a grievance regarding alleged treatment by her line manager. The claimant requested that her reporting line be altered. The respondent did not uphold the claimant’s grievance, finding that there was a clash between the claimant and her line manager, but that her line manager had not acted inappropriately or unreasonably. The claimant appealed the grievance outcome. The grievance was rejected at the appeal stage as well.

[27]On 11 April 2023, the claimant was seen by Psychiatrist, Dr Pankhurst at Pankhurst Psychiatry – [140]. At that consultation, the claimant provided Dr Pankhurst with some school reports that demonstrated that she had had “difficulties in focus and attention during class as well as being talkative”. Dr Pankhurst’s clinic letter states: “We completed Part 1 of the diagnostic interview for Adult ADHD and she scored 9 out of 9 for symptoms of inattention during adulthood, 8 out of 9 for symptoms of inattention during childhood. …”

[28]As a result of this assessment, Dr Pankhurst referred the claimant for a neurocognitive assessment.

[29]On 2 May 2023, when the claimant was still off work and subject to a fit note, the respondent wrote to the claimant inviting her to a disciplinary investigation meeting to take place on 9 May 2023. The claimant explained to me in her evidence that the knowledge that she was subject to a disciplinary investigation only exacerbated her already low mood.

[30]The claimant duly attended the investigation meeting, which ended up taking place over 2 days, 9 and 11 May 2023. The investigation concluded that there was a case to answer and, as such, the claimant was invited to a disciplinary hearing, to take place on 23 May 2023. The claimant’s solicitors corresponded with the respondent, setting out their concerns regarding the claimant’s attendance at such a hearing when she was subject to a fit note, stating that she would not be attending. In the event, the disciplinary hearing went ahead in the claimant’s absence on 24 May 2023 and the claimant was given the opportunity to provide written submissions by 30 May 2023.

[31]On 7 June 2023, the claimant was informed that the disciplinary hearing had gone ahead in her absence, and that the result was her summary dismissal. The claimant appealed this decision on 16 June 2023. It is the claimant’s case that no appeal outcome was ever received. The respondent’s position was that the claimant was sent a response to her appeal request on 17 August 2023 from Philip Dick. The claimant’s position is that she did not receive this email. In any event, she argues that any response to her appeal should have been received within 30 days of her raising her appeal: in other words, 16 July 2023.

[32]On 22 June 2023, Dr Pankhurst saw the claimant again – [141]. By this time, the claimant had met with Consultant Clinical (Neuro) Psychiatrist, Dr Roz Halari. Following that diagnostic interview, Dr Pankhurst concluded that the claimant met the criteria for Adult ADHD Inattentive Type.

[33]Dr Halari’s report is dated 1 July 2023 although, as above, the assessment with the claimant must have occurred before 22 June 2023. Dr Halari produced a Clinical Psychology Report, which is found at [127]. In that report, Dr Halari states at [128] through to [132]: “Education: She has always struggled with concentration, focus and forgetfulness. At school, she was more the joker and the funny person. This was her way of distracting herself because she could not concentrate. She would be told off by teachers for being disruptive. She tried hard, but she struggled to understand things and it did not come easy to her. She said that she had to read things over and over again whereas other people did not have to do this at school. She said that college was better because it involved more practical learning as opposed to theory and she was interested in the topics. It also helped that the course was all coursework-based and not exams. The final piece of coursework she did in a group with two friends, which made it easier. … Organisation: She told me that her organization is “pretty bad, backwards and forwards”. … She said that she can be forgetful, especially if it is too much in her head at any one time. She also can be more disorganized and forgetful if she is pressured and anxious. … Summary and recommendations: …It is my opinion that … [the claimant] presents with symptoms of inattention (difficulty with sustaining attention and organizing; avoiding tasks requiring mental effort; losing things; and being forgetful. [The claimant’s] neurocognitive functioning is within the average range of abilities, with average functioning in her verbal and perceptual reasoning functioning. Relative to her overall functioning there was evidence of [the claimant] presenting with difficulties in working memory and processing speed areas known to be impaired in ADHD. Relative to her overall performance, [the claimant] presented with a striking weakness in working memory and a relative weakness in the speed at which she processes information. As the mental and cognitive demands of tasks become greater, [the claimant] is likely to experience difficulties in being able to sustain her attention due to the slower processing and greater cognitive load in relation to working memory. She struggles to keep on task and organize, memorise information, particularly that is complex and requires greater attention and focus. It was evidence that she struggles with tasks that are time pressured and this can impact on her concentration and focus.”.

[34]On 1 August 2023, the claimant saw her GP, and explained that she had seen the private psychiatrist who had prescribed Elvanse, a treatment for ADHD. She said that she had come off the Sertraline as per the psychiatrist’s letter, but that she “became low and tearful so restarted” – [84].

[35]On 11 October 2023, the claimant visited her GP complaining of (amongst other matters) low mood and stress. This note also records that the claimant was in receipt of Elvanse via a private psychiatrist – [82].

[36]On 12 October 2023, the claimant was informed by her GP (via text) that Elvanse was not something they could prescribe, as she was no longer under the care of a secondary care provider with whom we can sign a shared care agreement” – [82]. In other words, because the initial prescription came from a private practitioner, the GP surgery was not deemed to be sharing care. This is why the medication does not appear on the medications list provided from the claimant’s GP records.

[37]From the claimant’s list of medication in her GP notes, it is apparent that the claimant was on repeat prescription for Sertraline from January 2023 to the end of July 2024 – [91]. Fit notes

[38]I have been provided with the following fit notes in the bundle (in reverse chronological order): 38.1. 07.10.23 – 07.11.23: depression – not fit – [116]; 38.2. 04.09.23 – 06.10.23: depression and recovering from hip arthroscopy – not fit – [117]; 38.3. 03.07.23 – 03.09.23: depression – not fit – [121]; 38.4. 03.06.23 – 03.07.23: depression – not fit – [145]; 38.5. 10.05.23 – 02.06.23: depression – not fit – [153]; 38.6. 04.04.23 – 09.05.23: depression – not fit – [156]; 38.7. 06.03.23 – 03.04.23: depression – not fit – [157]; 38.8. 03.02.23 – 06.03.23: depression – not fit – [158]; 38.9. 05.01.23 – 02.02.23: depression – not fit – [159]; 38.10. 20.12.22 – 05.01.23: stress at work – not fit – [160]; 38.11. 06.12.22 – 20.12.22: stress at work – not fit – [166]. Legal framework The Equality Act 2010

Legal framework

[39]Section 6 of the Equality Act 2010 (“EqA”) provides as follows: “(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.”

[40]Schedule 1 EqA provides regarding long-term effects: “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.”

[41]In relation to medication, Schedule 1 sets out: “5. Effect of medical treatment(1) 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 –

a. Measures are being taken to treat or correct it, and

b. But for that, it would be likely to have that effect.

(2) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.”

[42]In terms of “substantial” adverse effect, the word substantial means “more than minor or trivial” – s212 EqA. The 2011 Guidance

[43]In 2011, a guidance note was issued entitled “Guidance on matters to be taken into account in determining questions relating to the definition of disability”.

[44]Regarding “substantial” adverse effect, Section B provides as follows: B2. The time taken by a person with an impairment to carry out a normal day-to-day activity should be considered when assessing whether the effect of that impairment is substantial. It should be compared with the time it might take a person who did not have the impairment to complete an activity. … B7. Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day-to-day activities.

[45]In terms of the “long-term” element of the test, paragraph C4 sets out as follows: “In assessing the likelihood of an effect lasting for 12 months, account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood. Account should also be taken of both the typical length of such an effect on an individual, and any relevant factors specific to this individual (for example, general state of health or age).”

[46]The Guidance sets out the following in relation to the term “normal day-to-day activities”: “D3. 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. Normal day-to-day activities can include general workrelated activities, and study and education- related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern”.

[47]In terms of specialized activities, sections D8-10 state the following: “D8. Where activities are themselves highly specialised or involve highly specialised levels of attainment, they would not be regarded as normal day-to-day activities for most people. In some instances work- related activities are so highly specialised that they would not be regarded as normal day-to-day activities. D9. The same is true of other specialised activities such as playing a musical instrument to a high standard of achievement; taking part in activities where very specific skills or level of ability are required; or playing a particular sport to a high level of ability, such as would be required for a professional footballer or athlete. Where activities involve highly specialised skills or levels of attainment, they would not be regarded as normal day-to-day activities for most people. D10. However, many types of specialised work-related or other activities may still involve normal day-to-day activities which can be adversely affected by an impairment. For example they may involve normal activities such as: sitting down, standing up, walking, running, verbal interaction, writing, driving; using everyday objects such as a computer keyboard or a mobile phone, and lifting, or carrying everyday objects, such as a vacuum cleaner”.

[48]Regarding “adverse effects on the ability to carry out day-to-day activities”, at paragraph D19 of the Guidance, it states the following: “A person’s impairment may adversely affect the ability to carry out normal day-to-day activities that involve aspects such as remembering to do things, organising their thoughts, planning a course of action and carrying it out, taking in new knowledge, and understanding spoken or written information. This includes considering whether the person has cognitive difficulties or learns to do things significantly more slowly than a person who does not have an impairment”. Case-law

[49]In determining disability status, the Tribunal must ask itself four questions – Goodwin v Patent Office

[1999] IRLR 4

, paragraph 3: 49.1. Does the person have a physical or mental impairment; 49.2. Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities; 49.3. Is that adverse effect substantial; and 49.4. Is that adverse effect long-term?

[50]The burden of prove in proving disability status is on the claimant – Kapadia v London Borough of Lambeth

[2000] IRLR 699

[51]In consideration of whether any adverse effects are substantial, the focus must be on what the claimant cannot do, as opposed to concentrating on what she can do – Aderemi v London and South Eastern Railways Ltd

UKEAT/0316/12

, paragraph 15: “As a matter of first principle when considering the statute, this requires the focus of the Tribunal to be not upon that which a claimant can do but that upon which he cannot do. It is what he cannot do that requires to be assessed, to see whether it is truly trivial or insubstantial or whether it is not”.

[52]Furthermore, in cases involving ADHD as the impairment, the EAT in Stedman v Haven Leisure Ltd

[2025] EAT 82

provided some guidance as to the relevance of a diagnosis of ADHD (and autism): “The significance of a diagnosis

[57]Although I have dismissed ground 1 of the appeal, I need to say something about Professor Fox's diagnoses of autism and ADHD. In responding to this ground of appeal, at [15] of her skeleton argument, Ms Balmelli submitted that the Tribunal was right to consider the claimant's diagnoses as being relevant only to the question of whether the claimant has a 'mental impairment' and not to the question of substantial adverse effect. I am not convinced that is what the Tribunal in this case did, but if it did that would have been the wrong approach.

[58]The parties are in agreement that, just because someone has a diagnosis of autism or ADHD, it does not mean that they are disabled within the meaning of section 6 of the EA 2010. I agree. Ms Balmelli is also right that autism and ADHD manifest in different ways in different people. However, it would in my judgment be wrong for a Tribunal to proceed on the basis that the fact of diagnosis was irrelevant to the question of 'substantial adverse effect'.

[59]While I do not expect all judges to be familiar with the international diagnostic criteria for autism and ADHD, all judges should be familiar with the Equal Treatment Benchbook, and also with the principle that a diagnosis (in broad terms) reflects a clinical judgment that someone is significantly different from the norm as regards the area of functioning covered by the diagnosis. The Disability glossary to the Equal Treatment Benchbook provides a lot of information about autism, including explaining that "To have a diagnosis of autism a person will have difficulties with social communication and integration, and will often demonstrate restricted, repetitive patterns of behaviour, interests or activities." Equivalent information is included in relation to ADHD.

[60]Where a Tribunal has before it evidence of a clinical diagnosis of autism or ADHD, accordingly, then (unless there is some reason to doubt the reliability of that clinical judgment), the Tribunal must take that diagnosis into account not just as evidence that someone has a condition or impairment, but as evidence as to the impact of that impairment. The diagnosis means they have been judged by a clinician to have significant (i.e. clinically 'more than minor or trivial') difficulties with the areas of functioning covered by the diagnosis.

[61]It does not, of course, follow that the Tribunal must accept the clinician's view as answering the disability question under the Act. The Tribunal still needs to consider what it was that led the clinician to make the diagnosis in the claimant's case, and to make findings about the claimant's ability to carry out day-to-day activities. If the claimant is not a reliable narrator, that may undermine any clinical opinion that is based on the claimant's account. However, as regards something like social interaction and communication, if a clinician has judged a claimant's difficulties in that respect to be significant enough to merit a diagnosis of autism, a Tribunal will need to engage with that view in its reasons when dealing with the question of 'substantial adverse effect'”. 53. Regarding the question of whether any adverse effects are likely to last 12 months or more, it is established that “likely” is to be interpreted as meaning “could well happen” – SCA Packaging Ltd v Boyle

[2009] IRLR 746

. Furthermore, when looking at whether effects are likely to last 12 months or more, the Tribunal is not entitled to take into account events that occur following the relevant period – All Answers Ltd v Mr W

[2021] IRLR 612

. 54. In Paterson v Commissioner of Police and the Metropolis

[2007] ICR 1522

, the EAT set out its understanding of the comparison exercise to be done for the purposes of this part of the test of disability: “68…In our judgment, the only proper basis, as the Guidance makes clear, is to compare the effect on the individual of the disability, and this involves considering how he in fact carries out the activity compared with how he would do if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are substantial”. 55. So, the Tribunal’s attention must be on the impact of the impairment on the individual, rather than comparing how the individual is disadvantaged in relation to the general population. Conclusions Relevant period 56. First, I consider the end date of the alleged discrimination, given that there is some dispute between the parties. 57. It is the claimant’s case that the respondent failed to respond to her appeal. This is said to be an act of unfavourable treatment under s15 EqA and a detriment under s27 EqA – see the List of Issues starting at [54]. 58. Looking at s123 EqA on time limits for omissions, the following is set out: “(3) For the purposes of this section – (a)… (b) failure to do something is to be treated as occurring when the person in question decided on it. (4) In the absence of evidence to the contrary, a person (P) is to be taken to decide on failure to do something –(a) when P does an act inconsistent with doing it, or

(b) if P does no inconsistent act, n the expiry of the period in which P might reasonably have been expected to do it”. 59. The claimant’s case is that she would have expected a response to her appeal in 30 days. That must be the case that I use as the basis for framing the relevant time period in consideration of disability. The claimant is effectively saying that there was “no inconsistent act” and the claimant reasonably expected a response within 30 days. As such, this must mean that, on the claimant’s own case, the relevant period ends on 16 July 2023. 60. The relevant period for consideration is therefore 29 November 2022 through to 16 July 2023. Impairment – ADHD 61. I am satisfied as to the genuine nature of the diagnosis that the claimant received in July 2023 from Dr Halari: there is no evidence that would lead me to cast doubt on that diagnosis, neither has the respondent sought to cast doubt on it.

Conclusions

[62]I therefore accept the diagnosis. Although this diagnosis came about towards the end of the relevant period, in light of the nature of ADHD as a neurodevelopmental condition, I am satisfied that this was a mental impairment that the claimant has had for many years. Dr Halari’s report, which cites similar difficulties in childhood and adulthood, supports this conclusion. Adverse effects – ADHD

[63]I accept the claimant’s evidence that throughout her life her (now recognised) ADHD has caused her to experience adverse effects. Focusing on what she could not do, the claimant has, since childhood; 63.1. Had difficulty remaining focused and attentive; 63.2. Had problems with memory and retaining information;

[64]As an adult both in a professional setting and at home, the claimant has also experienced difficulty in time management and working to the same speed as others.

[65]I take into account the 2011 Guidance in finding that such difficulties are sufficient to amount to adverse effects on one’s ability to carry out day-to-day tasks.

[66]This is not a case in which the tasks with which she had difficulty were so particular to the job in the HR role that they were not normal day-to-day activities. The respondent argued that it was the specific nature of the HR job which led to the claimant’s difficulties coming to the fore. It may be the case that the claimant’s difficulties were exacerbated by the unfamiliar set up of the HR Team. However, that does not diminish the difficulties she has had since school days in terms of information retention, time management, and lack of focus. The need to retain information, to manage one’s time and to be able to focus and concentrate are all required for the carrying out of normal day-to-day activities. The fact that those skills are required to be at a higher level in a new job does not mean that the skills themselves are so confined to that particular role that they do not amount to normal day-to-day activities.

[67]I conclude that there were adverse effects on the claimant’s ability to undertake day-to-day activities. Such activities being matters such as absorbing instructions, retaining information, managing one’s time and concentrating on a set task. Substantial effect – ADHD

[68]I am satisfied that the above adverse effects were more than just trivial or minor.

[69]The claimant was slower at completing certain work activities: in relation to some matters she was simply unable to do them due to lack of retention of information and/or lack of concentration. These issues permeated into her domestic life as well: forgetting appointments and having organizational difficulties with her children’s routines; these problems come back to a lack of retention of information.

[70]There was an improvement whilst the claimant was on Sertraline, which demonstrates that the effect was substantial compared to how the claimant would have completed the various tasks but for the impairment.

[71]Further, I take into account that the claimant received a diagnosis of ADHD in July 2023. The report of Dr Halari is lengthy and thorough: I have no good reason to doubt the credibility of the evidence therein. I have cited the relevant parts of the report in my findings, but highlight again one particular part of the “summary and recommendations” section – [183]: “Relative to her overall performance, [the claimant] presented with a striking weakness in working memory and a relative weakness in the speed at which she processes information”.

[72]This conclusion of Dr Halari, coupled with the finding that the claimant has symptoms of inattention, supports the claimant’s evidence that the effects were more than minor or trivial. The threshold here is not a high one. To have a “striking weakness” demonstrates to me that the difference in the way in which the claimant’s memory and processing capability functions is substantially different to a cross-section of the population, and to how she would function without the impairment.

[73]I do not accept the respondent’s argument that her symptoms were manageable until the change to the HR Team, and it was simply a case of the claimant not being well-suited to the role. The claimant was only able to cope in the Sales Team due to her receiving help from colleagues, and the claimant implementing her own coping strategies. I do not consider it reasonable to expect her to implement such coping mechanisms to the extent that the relevant adverse effects should not be deemed substantial. First, some of the coping mechanisms require dependency on third parties (such as colleagues): such dependency cannot be a reasonable coping mechanism as the willingness of third parties is not something over which the claimant has any control. Second, the claimant’s coping strategy of writing notes was a lengthy process; I consider that it cannot be deemed reasonable to expect someone to spend a lengthy amount of time performing their coping mechanisms.

[74]Furthermore, I remind myself that the test is not whether an individual can “cope”: the focus must be on what an individual cannot do, rather than what they can do. The claimant had difficulty in retaining information and following instructions, amongst other matters. She could not do so without assistance.

[75]Those coping strategies that the claimant put in place, including reliance on colleagues, are not reasonable strategies to expect her to take in her daily life. I conclude that the coping strategies are not such as to reduce the adverse effects to insubstantial, minor or trivial.

[76]I do not agree with the respondent’s interpretation, that the claimant was fine until she moved to the HR Team. She was able to get by with a supportive team, and by being familiar with the tasks and data particular to the Sales Team. However, the underlying activities of, for example, retaining information and meeting deadlines, were still present, she had just adapted to cope. As above, I am not satisfied that it is reasonable to expect the claimant to apply those coping strategies to the extent that there is no substantial adverse effect.

[77]I am satisfied that the adverse effects on the claimant of her ADHD were substantial. Long-term effect – ADHD

[78]The effects, such as an inability to retain information and inattentiveness generally, as well as the striking weakness on her memory and functioning speed, have affected the claimant since her school days, and throughout her adult life.

[79]I am therefore satisfied that (1) the substantial adverse effects of the claimant’s ADHD had lasted for more than 12 months as at 29 November 2022. Furthermore, and in the alternative, I am satisfied that those effects were likely to last more than 12 months as at 16 July 2023.

[80]As such, I am satisfied that the effects were long term. Conclusion - ADHD

[81]I am satisfied that the claimant was disabled by way of ADHD during the course of the relevant period of 29 November 2022 to 16 July 2023. Impairment – depression

[82]I am satisfied on the basis of the fit notes I have seen and recorded above that the claimant had a mental impairment of depression for at least part of the relevant period. In terms of the relevant period prior to 5 January 2023, I will turn to the effects to inform my conclusions as to whether an impairment of depression was experienced by the claimant prior to 5 January 2023. Adverse effects – depression

[83]I have accepted that the claimant’s mood was declining in August 2022; see paragraph 23 above. From August 2022, the claimant suffered – [90/71]: 83.1. Stress at work 83.2. Significant anxiety and apprehension regarding her work 83.3. Interrupted sleep; 83.4. Low tolerance; 83.5. Low humour; 83.6. Being snappy with her children; 83.7. Difficulty in concentration; 83.8. Loss of confidence.

[84]From November 2022, those effects declined further following the claimant’s annual review on 29 November – [71]. She experienced the following difficulties – [72]: 84.1. Difficulty cooking the evening meal for the children; 84.2. Struggling with organising their school tasks; 84.3. Difficulty getting up in the morning; 84.4. Becoming very forgetful; 84.5. Losing track of time; 84.6. Sleeping poorly; 84.7. Feeing emotional and crying for no reason; 84.8. Withdrawing from social activities such as going to the gym and her golf lessons, as well as social engagements with friends; 84.9. Being withdrawn and irritable over Christmas in 2022; 84.10. Losing focus.

[85]I accept the claimant’s evidence on these points; it is corroborated to some extent in the contemporaneous medical evidence with the GP records. I also give weight to the fact that the claimant was ultimately signed off with depression in January 2023, and was determined to be unfit to work by a medical professional for that reason.

[86]In May 2023, there was a further decline in the claimant’s mental health following being alerted to the commencement of a disciplinary process against her. The claimant was constantly tired, feeling desperate, angry and frustrated. The claimant’s alcohol and food consumption increased at this time as well. The fact of the disciplinary process is recorded within the GP records at [86] dated 25 May 2023. I accept that the disciplinary process weighed on the claimant’s mind sufficiently to warrant her telling the GP about it.

[87]I accept that the symptoms the claimant suffered did amount to adverse effects on her ability to undertake day-to-day activities. Some of the effects set out at paragraphs 83 and 84 above are also symptoms of the claimant’s ADHD; for example, losing focus, being forgetful, difficulty concentrating. However, many of the effects set out above are not symptoms of ADHD, such as low mood and feeling emotional for example. I therefore conclude that there were effects suffered by the claimant that were caused by depression, as opposed to her ADHD. Substantial effects – depression

[88]I remind myself that the GP’s note for the entry on 6 December 2025 recorded that the claimant “does not describe significant features of depression although she does have some features”.

[89]I do however note that by December 2022, the claimant was signed as not fit to work due to work related stress. Then, come January 2023, the GP deemed it appropriate to sign the claimant as not fit to work by reason of depression. Being unable to work is in itself an adverse effect that can be substantial.

[90]By the time of the GP appointment in December, and over the Christmas period, I accept that the effects on the claimant of her depression were substantial. I repeat that this is not a high threshold: the question is whether the effects of more than minor and trivial. The claimant, as I have already set out, left it until she was at breaking point before attending her GP: it is implausible that adverse effects described in December 2022 were not there 7 days earlier on 29 November. I therefore accept that the effects on the claimant that I have found were substantial were present from the commencement of the relevant period.

[91]Considering what the claimant was unable to do, it appears that she was unable to look after her children to the standard she would normally, in terms of providing meals and ensuring they kept to their routines. The claimant was also unable to socialize as she would normally do. More fundamentally, she could not sleep uninterrupted which, in itself, I find is a substantial adverse effect.

[92]I therefore conclude that, as of 29 November 2022, the claimant was suffering substantial adverse effects on her ability to carry out day-to-day activities, and that those effects were caused by her depression. Long-term effects – depression

[93]The claimant’s evidence is that she had never suffered any mental health issue prior to the events which are the subject of this claim. By the time of the end of the relevant period, the claimant had, in light of my conclusion above, been suffering adverse effects for just over 7 months.

[94]I therefore need to consider whether it could well be the case that the substantial adverse effects would continue for another 5 months into December

[95]The claimant had a fit note for the period 3 July 2023 through to 3 September 2023 for depression, in which she was deemed not fit to work – [121]. I accept that this fit note is dated 1 August 2023, and therefore technically arises after the end of the relevant period, however it covers the last 2 weeks or so of the relevant period.

[96]The fit note that covers the period of 3 June 2023 to 3 July 2023 is dated 8 June 2023 – [145]. This therefore gives me an indication of a GP’s assessment of the claimant’s mental health towards the end of the relevant period.

[97]The claimant was also at this time, summer of 2023, on a repeat prescription for Sertraline – [91]. I consider this indicates that the GP’s clinical view was that this was a condition that was ongoing as at summer 2023.

[98]Finally, I take into account that, by the end of the relevant period, the claimant had been dismissed and had been given no indication that her appeal was going to be dealt with. As such, to the extent that her depression and associated effects commenced due to her working environment, this is not a case in which it could be envisaged that the situation at work was going to improve, leading to an improvement of her symptoms.

[99]I therefore conclude that, taking into account the facts known towards the end of the relevant period, it could well have been the case that the effects of the claimant’s depression would have lasted up to and beyond early December

[100]As such, I am satisfied that the substantial adverse effects were long-term. Conclusion – depression

[101]I am satisfied that the claimant had a disability, namely depression, from 29 November 2022 throughout the remainder of the relevant period to 16 July Approved by: