Miss C McKay v Coloplast Ltd: 3314154/2019 and 3315984/2019
EMPLOYMENT TRIBUNALS
Case No 3314154/2019, 3315984/2019
Between
Miss C McKayClaimantColoplast LtdRespondent
Before
Employment Judge PostleDate 21 June 2021
JUDGMENT
[1]The claimant does not have a disability within the meaning of s.6 of the Equality Act 2010.[2]The claimant’s claim for the protected characteristic of sex are out of time and the Tribunal does not exercise its discretion to extend time under s.123(1) of the Equality Act 2010.
REASONS
[1]The first part of this open preliminary hearing is to determine whether the claimant has a disability within the meaning of s.6 of the Equality Act 2010 which defines disability as a person who has a disability if they have a physical or mental impairment and the impairment has a substantial and long term adverse effect on a persons ability to carry out normal day to day activities.[2]The Employment Appeal Tribunal requires a Tribunal to look at the evidence by reference to four different questions or conditions as the EAT has termed them:(1) Did the claimant have a mental and/or physical impairment?(2) Did the impairment affect the claimant’s ability to carry out normal day to day activities?(3) Was the adverse condition substantial?(4) Was the adverse condition long term, namely likely to last for more than 12 months?[3]In this Tribunal we have had the benefit of a bundle of documents consisting of 280 pages and we have two impact witness statements from the claimant and we also heard evidence from the claimant.[4]The claimant’s first impact statement unfortunately concentrates largely on the facts of the claimant’s case rather than the effect that the claimant’s alleged disability of stress, anxiety and depression has on her normal day to day life and it tells the Tribunal little about that impact whereas the second statement does give more detail about the impact for example disturbed sleep, finding it difficult to switch off and being low mood and sleep.[5]Looking at the GP records the first time that the claimant appears to see the GP about the alleged disabilities is on 10 January 2018 (page 92) where it records the claimant is struggling with life, feeling down and there is reference to the claimant’s daughter unfortunately having been sexually assaulted. The claimant was prescribed medication for depression and is signed off work. She visits her GP again on 24 January and the records reveal depressed mood. She sees the GP on 6 February, that records stress, low mood and depressed.[6]On 18 February the claimant visits her GP and informs her GP that she is thinking of returning to work on a phased return and indeed she does so on 20 February seemingly without problems. Thereafter appears to hold her job down throughout the months right up until November and during that period there seems to have been little impact on the claimant’s daily life continues working until a disciplinary investigation meeting on 13 November 2018, goes off shortly thereafter on 16th and began a further period of sickness until her dismissal on 18 April.[7]One of the difficulties in this case is there is no recorded formal diagnosis of the claimant’s condition. The burden of proof is on the claimant to satisfy the Tribunal that she has a disability within the meaning of s.6 and the real test is whether an individual can carry out normal day to day activities not whether they can carry out specialist tasks and that the impairment must have a substantial adverse effect on a persons ability to carry out normal day to day activities. It must be more than minor or trivial.[8]Looking at the evidence the claimant clearly did have for a short period of time a mental impairment, that does seem to have had limited effect on the claimant’s ability to carry out her normal day to day activities but it is clear that having been recorded as depression and low mood in January towards the end of February the claimant was able and fit and ready whatever the claimant may maintain to return to work. Therefore the Tribunal takes the view that such as the condition was, it was not a substantial condition, it was not an adverse condition which had a long term effect and therefore those questions that the EAT asked us to pose looking at them sequentially and not together tell me that on the balance of probabilities the claimant does not have a disability which satisfies the definition of s.6 of the Equality Act 2010.[9]This is the second part of the preliminary hearing to determine whether the Tribunal should exercise its discretion under what is called the just and equitable principle under s.123 of the Equality Act in relation to the claimant’s claims that she suffered sex discrimination and harassment at the hands of Mr David Edwards during the period May 2017 to October 2017 when Mr Edwards was suspended and subsequently dismissed.[10]The burden is on the claimant to persuade a Tribunal that it is just and equitable to extend time and whilst Employment Tribunals have a wide discretion to allow an extension of time under the just and equitable test in s.123 it does not necessarily follow that the exercise of the discretion is a foregone conclusion. Indeed the Court of Appeal made it clear in Robertson v Bexley Community Centre (t/a Leisure Link) [2003] IRLR 434 CA, that when tribunals consider exercising their discretion under s.123(1)(b) there is no presumption that they should do so unless they can justify failure to exercise that discretion. Quite the reverse, a tribunal cannot hear a complaint unless the claimant convinces it that it is just and equitable to extend time so the exercise of the discretion is the exception rather than the rule. The onus is therefore on the claimant to convince the Tribunal that it is just and equitable to extend time.[11]However this does not mean that exceptional circumstances are required before the time limit can be extended. In considering its discretion whether to extend time a tribunal may have regard to the checklist contained in s.33 of the Limitation Act 1980 known as the Keeble factors subject to the following observations. A tribunal is not required to go through every factor in the list referred to in Keeble and when considering the just and equitable test the Court of Appeal has stated recently that it was not healthy for the Keeble factors to be taken as the starting point for tribunal’s approach to just and equitable extensions and that a rigid adherence to a checklist can lead to a mechanistic approach to what is meant to be a very broad general discretion. The best approach for a tribunal in considering the exercise of the discretion is to assess all the factors in the particular case that it considers relevant including in particular the length and reasons for the delay.[12]Having heard from the claimant and her representative friend Mr Orton I am not so persuaded that I should exercise my discretion. There has been no cogent reasons advanced as to the length of time delaying and the reasons of the delay in this case which are substantial, the claimant makes allegations commencing in May/June 2017 which conclude in October 2017 and the claimant’s claim was not presented until 23 April 2019, that is a substantial period of delay. I do not accept that the reasons for the delay was the claimant was still employed by the respondent and was concerned about the possibility of retribution. It is clear that the claimant issued this claim whilst she was still employed.[13]Furthermore there has simply been no cogent reason as to why such a length of delay has been allowed to elapse. Given that length of delay I am concerned that the cogency of the evidence is likely to affected by that delay. Furthermore it seems that the claimant made no efforts at all to ascertain her rights during the period when she was alleged to be the subject of harassment by Mr Edwards. Clearly it is incumbent upon a claimant to establish what rights they have and listening to the claimant and her friend advisor it appears that nothing was done in this respect until around December 2018 again some substantial delay after the events complained of.[14]Taking all these matters into account I am therefore not persuaded that this is a case where I should exercise my discretion under the just and equitable principle and therefore the claim under the protected characteristic of sex the Tribunal has no jurisdiction being well out of time.[15]That leaves the claimant with a claim for ordinary unfair dismissal under the Employment Rights Act 1996 which will proceed to a full merits hearing, which I understand has already been listed in March 2022 at Cambridge with the hope that it will be an in person hearing.[16]Employment Judge Postle was advised that the case management for ordinary unfair dismissal had not yet been completed and orders were therefore made which are contained in a separate Case Management Orders document.[1]The question of whether the claimant was a disabled person was listed to be determined at this preliminary hearing at an earlier preliminary hearing on 1 May 2024 with orders being made in preparation for this hearing at that point. The question had previously been determined in June 2021 but the claimant had been successful on appeal and the matter was remitted to be determined afresh with evidence which had been provided before and some new evidence.[2]This preliminary issue was whether the claimant was disabled within the definition contained in section 6 Equality Act 2010 (EQA). This includes considering whether there was disability “at the material time”. Although the hearing had been listed with suggested dates for the material time being 2017 to the end of the claimant’s employment of which she was notified on 25 April 2019, it required early consideration of when the alleged acts of disability discrimination had occurred.[3]Although this claim has been progressing for some time, there has been no definitive statement on when the material time was. Although initially the respondent’s representative believed it was summer of 2018, after clarification of PHCM Order 1 of 6 September 2023 the claims for the list of issues, it seems now that the first alleged act or omission of discrimination is February 2018.[4]The main question is whether, at that point (February 2018) or at later point up to the dismissal of the claimant in April 2019, there were substantial adverse effects resulting from the claimant’s impairment which had lasted 12 months or were likely to last 12 months. The respondent accepts that, by March 2019, there were substantial adverse effects but disputes that they were likely to last 12 months.
The hearing
[5]The hearing was by CVP. The claimant attended and was assisted by her partner, Mr Orton. I had before me a bundle of documents and a skeleton argument from the respondent’s representatives. There was also a draft list of issues which was considered for the merits hearing after I had given judgment on the definition of disability issue. There were three disability impact statements in the bundle, all of which had some descriptions of the symptoms of the claimant’s ill health. The bundle also contained copies of the claimant’s medical records as well as Occupational Health service (OHS) information.[6]The claimant gave evidence for approximately one hour and the remainder of the morning was taken up with discussion and submissions. I considered the issue over a slightly extended lunch break and gave oral judgment at 2pm. We then moved onto case management matters.
The facts
[7]The claimant worked for the respondent from 2011 until she learnt she had been dismissed on 25 April 2019. She was employed for the last few years as a customer care specialist.[8]During 2017 the claimant alleges there were problems with a manager which upset her. It seems similar concerns were raised by others and the individual about whom the concerns were raised left the respondent around November 2017. Some of these concerns formed the basis of the claimant’s sex discrimination claim but that has been struck out as it was out of time. The claimant also had some family difficulties around her daughter in 2017 of which the respondent was aware. In her impact statements, the claimant mentions these matters but the details are not relevant to my determination.[9]In her impact statements, the claimant described how she started experiencing symptoms of depression in mid-2017. She visited her GP in January 2018 where she was diagnosed with depression and anxiety, prescribed Sertraline 50mg and signed off for 2 weeks, later extended to 6 weeks. She continued on the medication but decided, after discussion with her GP, to try a phased return to work in mid-February. This phased return started at 4 hours a day which after 8 weeks was increased to 5 hours a day for 8 weeks and then to 6 hours for 4 weeks until the claimant returned to full time hours in August 2018. During this time her medication was increased to 100mg. PHCM Order 2 of 6 September 2023[10]She described how, in early 2018, she found it very difficult to leave the house, not getting dressed and struggled to manage house work. She had trouble sleeping and spent a vast amount of time in bed. After she was back at work on the phased return, she described finding it difficult to concentrate and was getting irritable. She would go straight to bed after work. She said she tried to reduce the Sertraline to taking it every other day. Between August and November 2018, she asked several times to work from home as she found socialising difficult but this was refused and it was recorded by the respondent as “domestic incident” which was unpaid. In November 2018, she had a problem with her eye and, when she visited the GP on 19 November 2018, they confirmed depression and anxiety, prescribed Sertraline at 50mg and signed her off work for 2 weeks with another 2 weeks following that.[11]The symptoms continued with very poor sleep, no concentration and sickness absence and her medication dose increased to 100mg in March 2019. At one point she described feeling suicidal but accepted she did not tell either the GP or the Occupational Health adviser that as she was embarrassed. She described spending many days in bed and social anxieties becoming “out of control”.[12]When the claimant was answering questions in the hearing, she agreed she had very little absence from work during 2017 when she believed the depression had begun. She said there had been more flexibility then about working from home. She also agreed there may have been a gap in her medication of about 4 months between July and November 2018 but said that she was trying to manage without it and trying to be “normal”. She felt she relapsed in November, that she thought she was getting better but found she was not.[13]The claimant was facing disciplinary proceedings and was referred to OHS whom she spoke to on 11 March 2019. Their report included much of the information of her symptoms as described above and considered she was still unable to work but well enough to attend a meeting. Their opinion was that she was likely to be disabled under the EQA. She was still on sick leave when she was dismissed at a meeting she did not attend on 18 April, being informed by letter on 25 April 2019. Law and Submissions[14]The primary source for consideration of the definition of disability is in Section 6 EQA which reads:- (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. (2)A reference to a disabled person is a reference to a person who has a disability. PHCM Order 3 of 6 September 2023 (3)In relation to the protected characteristic of disability— (a)a reference to a person who has a particular protected characteristic is a reference to a person who has a particular disability; (b)a reference to persons who share a protected characteristic is a reference to persons who have the same disability. (4)This Act (except Part 12 and section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability; accordingly (except in that Part and that section)— (a)a reference (however expressed) to a person who has a disability includes a reference to a person who has had the disability, and (b)a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability . (5)A Minister of the Crown may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1). (6)Schedule 1 (disability: supplementary provision) has effect.[15]Section 212 (1) EQA provides that “substantial” means more than minor or trivial”.[16]The provisions in Schedule 1 EQA with respect to what is “long term” are as follows: Long-term effects 2(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. (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.[17]The Guidance on matters to be taken into account in determining questions relating to the definition of disability (2011) contains much which is useful including sections on the meaning of “substantial adverse effect”; effects of treatment; and importantly for this case, “long term effects” and “likely”. It also references situations where the effects are fluctuating or recurring. PHCM Order 4 of 6 September 2023[18]Paragraph C3 states that the meaning of “likely” is that “it could well happen” (see Boyle v SCA Packaging Ltd [2009] ICR 1056) and paragraph C4 states - “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”[19]The respondent referred me to the case of Richmond Adult Community College v McDougall [2008] ICR 431 which re-iterates that the long term effect must be judged at the date of the alleged acts of discrimination (as in paragraph C4 above). The more recent case of All Answers Ltd v W and anor [2021] IRLR 612 also made it clear (again as in paragraph C4 above) that a tribunal must not take into account anything only known after the alleged act when assessing the likelihood of the effects lasting more than 12 months.[20]The respondent provided a written skeleton argument which he added to orally after the evidence had been heard. In summary, it is not disputed that the claimant had substantial adverse effects of a mental impairment at the time of her dismissal. What is not accepted is that those effects were long term. It was suggested that there was a degree of inconsistency in the claimant’s account of her symptoms and there is no medical evidence to support her case that there were effects in 2017. It was submitted that any mention by the claimant of suicidal ideation is not supported by the medical evidence and suggests exaggeration. Importantly, the respondent submits, there was a gap between August and November when the claimant was working full time and not taking medication. It is submitted that the substantial adverse effects had not lasted 12 months nor were they likely to last 12 months as at March or April 2019, reminding me that I cannot take into account effects that postdated the dismissal.[21]The claimant submitted that she did feel unwell in 2017 but did not recognise it, at the time, as symptoms of depression. She said that she had managed to return to work but reminded me that the phased return was relatively long. She also said that the period of time when she was not taking medication and working full time, she had a difficult balance and asked to work form home to help, which was not allowed. She submitted that she had substantial effects throughout 2018 and into 2019 (and beyond) and that it had been a mistake to stop taking her medication.
Conclusions
[22]First, I find that the claimant had the mental impairment of depression and anxiety from early 2017 until her dismissal in April 2019.[23]Secondly, I find that the effects of that impairment amounted to substantial adverse effects on normal day-to-day activities throughout that period. I have accepted the claimant’s evidence that she had effects that were more than minor or trivial throughout that period. Although there was a time during August to November 2018 when the claimant did not visit the GP or take medication, I PHCM Order 5 of 6 September 2023 accept that the effects remained substantial, even if they were not as severe as early 2018 and early 2019. She still had significant sleeping issues and social anxiety which led to some time off and staying at home instead of going to work. This means that the claimant was disabled at the material time, the alleged acts of discrimination having occurred from February 2018 to April 2019.[24]Thirdly, if I am wrong about that and the effects were not substantial for a period of time, I find that it was likely that the effects would last for at least 12 months, either when looking at it from February 2018 (when the claimant was only able to return to work on much reduced hours and increased medication) or from the later point of dismissal, given the clear history of substantial adverse effects at that point. I find that it could well happen that the effects could last for at least that length of time.[25]The claimant’s claim for disability discrimination continues to be determined with her other claims for unfair dismissal and victimisation in line with the agreed list of issues.