Mr A Burr v Aberdeen Day Project Ltd T/a The Bread Maker: 4101136/2022
JUDGMENT
The claimant, having failed to demonstrate that he is disabled in term of Section 6 of the Equality Act2010 his claim is dismissed. E.T. Z4 (WR)REASONS
[1]The claimant raised claims under the Equality Act for disability discrimination. The claims were opposed by the respondent company who did not accept that the claimant was a disabled person at the relevant time. It was agreed that the relevant time was January 2022 in particular the events leading up to the claimant’s dismissal on 16 January 2022.[2]A preliminary hearing took place before Judge Hosie on 12 August 2022. That Note arranged a preliminary hearing on disability status for the 12 December 2022. Judge Hosie made an Order for a Joint Bundle of Productions to be prepared for the preliminary hearing and a Joint Bundle was duly lodged prior to the 12 December.[3]Unfortunately, due to adverse weather conditions the respondent’s solicitor was delayed in their journey to the hearing. The hearing could not be concluded on 12 December and a further preliminary hearing date was arranged for 6 March 2023.[4]The claimant gave evidence on his own behalf both at the hearing on 12 December and 6 March. The respondent’s agents had been asked to prepare skeleton submissions prior to the hearing. This was done and they were intimated to the claimant. Ms Thompson-Robertson then expanded upon those submissions. Issues[5]The issue for the Tribunal was whether or not the claimant had a mental or physical impairment in terms of s.6 of the Equality Act 2010 during the relevant period leading up to his dismissal in January 2022. Evidence[6]The Tribunal heard evidence from the claimant on his own behalf. It also considered the documents lodged in the Joint Bundle of Documents. Facts[7]The claimant was 48 years old at the time of his dismissal by the respondent company. He joined them on 1 November 2021. He was employed as a Table Hand/General Labourer. This meant that he worked both in their Coffee Shop and in the attached Bakery.[8]Working in the Bakery was physically demanding. The claimant would have to prepare dough by loading it into industrial size mixers for kneading. He would then have to move and handling the dough during the production process leading up to baking. There were two other bakers who generally worked with him and a Manager. The claimant was subject to a probationary period of three months.[9]During his induction process the claimant was advised about the company’s Sickness Absence Reporting Procedures which he understood.[10]On 3 January 2022 the claimant did not attend for his scheduled shift. The respondent’s management attempted to contact him both on 3 and 4 January. The claimant did not make contact with the respondent as required by the policy to report his absence or to respond to telephone messages asking to make contact.[11]On 5 January 2022 the claimant had not attended work or made contact. The respondent’s management were concerned about the claimant’s welfare. The respondent’s management made contact with the claimant’s father as his emergency contact. The claimant continued not to attend work or make contact with the respondent’s staff.[12]The claimant contacted the respondents on 11 January asking if he still had a job. The respondent advised him that they would be in touch. The claimant did not attend any shifts between the 12 and 14 January despite being rota’d to do so.[13]Because of the claimant’s failure to contact the respondent they invited the claimant to attend a disciplinary meeting on 14 January to answer the following allegations: Failure to attend agreed scheduled shifts between 3 January and 11 January; Failure to follow the charity’s absence reporting procedures; Taking unexcused absence from work.[14]The claimant was invited to submit a statement in advance of the meeting to advise that the outcome of the disciplinary meeting could result in his summary dismissal. He was advised that he had the right to be accompanied.[15]The disciplinary meeting took place on 14 January. The claimant was not accompanied. The last shift worked by the claimant was 31 December 2021.[16]The claimant confirmed that he had received the invitation. He acknowledged that he had a previous absence and knew the reporting procedures. He suggested that his unauthorised absences was not gross misconduct.[17]On 16 January the outcome of the disciplinary meeting was communicated to the claimant. It was confirmed that his employment would be terminated from 17 January. He later appealed his dismissal. At an appeal meeting on 11 February he submitted a Fit Note signing him off for a period of one month from 7 February. The claimant background and personal circumstances[18]The claimant experienced various difficulties in his childhood and adolescence. His parents separated when he was about 8. He was upset at the separation and now believes looking back that he was depressed.[19]The claimant had difficulties adjusting at school. He described struggling to fit in. In later adulthood he came to believe that he might have ADHD/Asperger’s Syndrome or Autism which he thought might explain some of the difficulties he had encountered. The claimant was not assessed while at school.[20]In or about 2014 the claimant was working in a Bakery. He injured his back. He held his employers responsible for the injury. He believed that the injury had never fully healed. He believes he is susceptible to further injury following this. If found that if he was particularly busy in a bakery lifting heavy bags or dough he would have a sore back afterwards.[21]The claimant believes he experiences cycles of ill-health. He can suffer from migraines, IBS back pain, depression and anxiety. Sometimes he would feel physically and mentally better than at other times. Periodically he could have a breakdown in his physical health which would often lead to a breakdown in his mental health.[22]The claimant attended the Grantham Chiropractic Clinic on 28 June 2012, 5 September 2013 and 4 November 2014. He went back on four occasions in 2018. These visits were all to get relief from neck/lower back pain (JB 89/90) His symptoms were noted as LBP (Lower back pain) on and off for a year (JBp87). It was noted that the condition ‘‘usually clears’’ The claimant stopped attending the clinic because he could not afford to continue with sessions.[23]The claimant for many years lived and worked in England. He moved to Aberdeen in about 2019. He developed back and neck pain. Art this time he was playing cricket regularly. He obtained a report from a Chiropractor at the Inverurie Chiropractic Clinic in September 2019 (JBp48-55). It noted that the condition was intermittent and could be affected by activity or bad posture (P50). The cause was given as being a work related injury 8 years before. The previous month he had developed neck pain. It was intermittent. His condition was noted as being possibly affected by activity or posture. He experienced numbness and tingling in his extremities that affected his ability to play cricket. The summary was “otherwise a healthy male w/compensatory muscular issues following initial injury 8 years ago”.[24]The claimant attended the clinic for treatment from 2 September 2019 until the 8 August 2020 when he stopped as he could not afford further treatment. He had been working part time. He went to college in August. He moved to Aberdeen. He had ben working in a bakery since the summer at Duncan’s of Deeside.[25]In about September 2021 the claimant had not been feeling physically well. He felt that he had been overworking. He attended the Aberdeen Chiropractic clinic and obtained a report from them (JB57-58). It indicated that he had abnormal posture.[26]For a period of some weeks the claimant was homeless and slept in his car. He found this uncomfortable. It exacerbated his back condition causing him pain.[27]At Christmas the claimant visited his mother who had moved to Huntly. They had a fight and he left on poor terms with her. This had a big impact on his mental health. He was upset and the incident brought back memories of his parents separation. He felt useless. He became depressed and lacked motivation. He would stay in bed. He could not sleep properly or make himself food. He found it difficult to get ups and felt too unwell to work.[28]The claimant registered with the Whinhill Medical Practice in Aberdeen from 13 January 2022. He assumed that they had obtained his earlier medical records from his G.P. in England. He later concluded that they had either not referred to the notes or not obtained them.[29]The claimant would not keep in regular contact with this G.P. Practice. He was disappointed at his G.P’s reaction to periods of reported depression which he felt were not properly diagnosed or assessed. He was disappointed that the principal therapy offered to him was antidepressants which he refused to take.[30]The claimant produced entries in his medical notes with the Whinhill Medical Practice (JB93/94). On 17 January the claimant had a telephone discussion with a doctor at the practice. The following was noted: “Adult Autism Assessment Team (sitting in shire) the Adult Autism Assessment Team (AAAT) for Aberdeen City and Aberdeenshire starting in January 2021. The team want to be as successful as possible so are now open for self-referrals using the following form. Adult Autism Assessment Team (sitting in Shire H and S CP) -high-netgrampian (highnetgrampian.org). The claimant was given a self-assessment form which he sent to the team. Mental Health Issues? High functioning autism. Mum was main parent, Dad not from the age of 8. He has built his own coping mechanisms. Recent move to Aberdeen February 21 (June and July 21) dismissed from work bakery unauthorised absence 2 y to ill-health. He had not made contact with employer. Struggles with communication and building relationships. ? Huntly, she has been there 9/12 has done some tests online. 21/02/22 backpain without radiation nos. ptc/0 chronic back pain and neck pain for several years has seen Chiropractor. 7/2/22 telephone counter 1 (… self assessment Nocturnal at moment, goes for walks, watches Netflix can play games on the computer. Does not want tablets i.e. antidepressants. One year Mum mentioned he might have autism. Missed job seekers appoint, did start filling out PIP. 7/2/22…….diagnoses symptoms of depression. Reason symptoms of depression. 3/5/22 refer for depressed mood….. 29/4/22…..patient really upset the RCH has not been done. He has asked if you can go ahead with the referral without putting in for another call to save time.”[31]The claimant was given an ADHD ‘‘self- report’' which he completed on 17 January 2022 and a form of self-assessment for depression which he completed on the same date (JB96/97).[32]The claimant applied for Universal Credit on the 24 January 2022. It was refused and he appealed. The Social Entitlement Chamber First Tier issued a Judgment on the 27 October 2022 (JB 72-73) rejecting his appeal but noted that he was ‘‘ still struggling especially with his mental health’’ They found that he had cycles of ill-health. They found that he had a long standing difficulty engaging with others and was ‘‘generally avoidant’’ Submissions[33]The claimant’s position was clearly set out by him and re-iterated the written particulars which he had lodged with the Tribunal (JB 68) namely that he had been discriminated against on 16 January “to present he was suffering with severe depression, anxiety, neck/back/hip pain. The claimant in his evidence explained that he had suffered from anxiety and depression for many years. Each time differing in severity and length of time”. He indicated the physical pains had been roughly the same but with all aspects of severity and length of time. He explained that at the time in question he struggled to get out of bed, was anxious and not sleeping properly. The respondent’s submissions[34]The respondent’s solicitor took the Tribunal to the various legal tests referring to the well-known cases of J v. DLA Piper UK LLP UKEAT/0263/09T and Kapadia v. London Borough of Lambeth [2000] IRLR 699 (CA) and to Swift v. Chief Constable of Wiltshire Constabulary [2004] IRLR 540.[35]The respondent’s solicitor indicated that the claimant put forward three basis on which he was disabled. She would look at these one by one accepting as she did so that the cumulative effect of these conditions was also something the Tribunal would have to consider. Firstly, at the neck, back and hip pain. This was something the claimant referred to shoulder pain as well. His position was that he had seen a Chiropractor in the intermittently. He had indicated that things were worse when he was sleeping in his car in 2021 and when he was “over working”. His position was that the claimant had been unable to show that these effects were substantial or that they were long-term and likely to last longer than 12 months. In relation to depression, insufficient evidence of clear depressive condition. The doctor could only go so far as to say he had symptoms of depression. Depressive episodes are spaced out in time. Childhood, 2014 and December 2021 due to a fall out with his mother.[36]In addition there was no indication of any adverse effects of the depression or that they were likely to last longer than 12 months. ADHD, the claimant gave evidence that he had only been able to think that he had ADHD/Aspergers in late December 2021. There was no formal diagnosis. The claimant did not give the Tribunal any evidence of any adverse effect other than this caused him not being able to stop something that he had started i.e playing video games all day. Judgment[37]The Tribunal first of all had regard to Section 6 (1) of the Equality Act 2010. The Tribunal had to answer the following questions: Does the claimant have a physical and mental impairment; Does that impairment have an adverse effect on his ability to carry out normal day-to-day activities? Is that effect substantial (i.e. more than minor or trivial); Is that effect long-term? (i.e. 12 months or likely to be at least 12 months), at the time the alleged acts of discrimination are committed (Tesco Stores Ltd v. Tennant UK UKEAT/01617/190.[38]The Tribunal also had to consider Schedule 1, paragraph 2(2) of the Equality ‘‘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.’’[39]The word ‘ likely’’ should be interpreted as meaning that it could well happen (EQA 2010 Guidance paragraphs C3 and the case of SCA Packaging Ltd v. Boyle 2009 UKHL 37.[40]The Tribunal should ask itself four questions: Was there at some stage an impairment which had a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities? Did the impairment cease to have such an effect and if so when? What was the substantial adverse effect? Is that substantial adverse effect likely to recur?[41]This was not an easy case because the claimant was entitled to rely on more than one condition and did so. All of these apart from autism appeared to fluctuate to some degree and interact with each other. Being unable to sleep well because of back pain for example impacted on his mood. This was complicated further because if the claimant was correct and he was autistic this would go some way to explaining his reactions to events, to people and the anxiety he had experienced for some years. The claimant came to realise in the course of the hearing that because he had not regularly attended his GP over the years there was probably an absence of records charting his conditions and their recurrence. There was certainly very little in the Whinhill GP Records which were the only ones produced. The claimant made clear that he had not normally contacted his GP when he felt depressed or anxious preferring to use his own coping mechanisms. He explained that he did not like the idea of using antidepressants and that he was disappointed at the lack of other therapies available to him.[42]However, I will deal with the conditions relied on in order and then review them as a whole and try and judge their cumulative effect where possible. Back/neck/hip pain[43]The first condition is back/neck/hip pain which the claimant attributes to an injury sustained while working in a bakery around 2010/11. That was not a condition referred to in his ET1 nor in the Note prepared by Judge Hosie which only referenced ‘‘anxiety and depression’’.[44]Unfortunately we have no medical records showing the extent of the injury, no X rays or scans. There is no medical history for some years to show that the effects of the injury recurred. There are however notes from the Grantham Chiropractic Clinic showing periodic attendances from 2012 to 2018 but with a significant gap between November 2014. The claimant says he stopped because he could not afford the therapy. What we have is the claimant speaking to more recent problems which he attributes to heavy work and also to a period when he slept in his car.[45]I noted that there was no reference to back or neck pain contained in the Decision of the Social Entitlement Chamber which was considering a period from early 2023. This suggests that the back/neck problems may have subsided and the claimant did not suggest in evidence any continuing treatment.[46]The evidence the claimant has produced is contained in the two Chiropractic Reports. The first which seems to be from 2012 does assist him to an extent. The problem with the two reports is that it reports the claimant’s assessment of his own difficulties e.g ‘‘pain ache in lower back’’ but does not give an opinion as to the cause or indeed the likely impact on the claimant. It is conjecture but one can assume that the matter was bothering the claimant to such an extent that he paid for treatment but this on it’s own does not demonstrate that there was a substantial effect on his ability to carry out his day to day activities. The 2018 notes record that the condition was ‘’ on off’’ for a year and ‘‘usually clears’’.[47]The claimant returns to a Chiropractic Clinic in 2019 when he comes to Inverurie. His complaint is neck and back pain (JB p48) going back a month. It is difficult to assess the limitations imposed on the claimant by this condition. The notes (p54) refer to the claimant feeling ‘‘stiff after weekend’’ and ‘‘eases…only small niggles now and again’’ One note suggests that the claimant had taken up hillwalking in this period. He was also a keen cricketer. The writer of the notes did not give evidence and they may be laconic but considering that the claimant was periodically working as a baker that was a physically exerting occupation which he was seemingly able to perform. The report from the Aberdeen Clinic is a postural assessment which does not assist us.[48]The only other written evidence is the short notes contained in the medical notes. A back/neck condition is not recorded in the summary of important Illnesses and investigations. The notes cover the period January 2022 to May 2022 The only entry is 21/02/2022 (p94) which records ‘‘ back pain without radiation’’ and chronic back pain for several years. This is what has been reported and not the consequence of any examination of the claimant. The claimant is then referred to a Physiotherapist. Unfortunately we do not have their report. No medication seems to be prescribed particularly no pain relief.[49]It is up to the claimant to demonstrate that this condition is a qualifying condition under the Equality Act. He has shown that he had suffered back/neck/hip pain following an injury at work some years ago. He has demonstrated that he suffers from a sore back/neck/hip intermittently. From his own evidence the problem recurs usually as a consequence of some event. He said he that felt a sore back when he did too much lifting at work such as lifting too many heavy sacks of flour (which seem to be hundredweight bags) or sleeping in his car. These are not day to day activities for the purposes of the Equality Act. The Chiropractor reports do not assist as they give no analysis of how severe the claimant’s condition is even when receiving treatment. The claimant also stopped going to get this treatment, understandably given his evidence that he could not afford it, but seems to have been free from discomfort for long periods. He certainly did not approach is GPs on about these matters for example to discuss pain relief or publicly funded physiotherapy. In addition, there are no scans, X rays or other orthopaedic reports to assist him. Although I accept that the claimant stopped going period. Looking at the matter in the round although I accept much of the claimant’s evidence there is insufficient before me to conclude that this condition (lower back/neck/hip pain) has a substantial effect on his day to day activities. Although I am only considering disability status it would be difficult to understand how on the current pleadings how this particular condition could found a claim for disability discrimination or discrimination arising from a disability when the claimant alleges that his failure to contact his employers was influenced by his disability and that this should have been taken into account by those employers. Autism[50]It is only recently that the claimant has come to the opinion that he may have autism and ‘‘be on the spectrum’’ as he put it. He certainly believes strongly that this would explain some of his past difficulties. After a short telephone discussion his GP noted ‘possible autistic tendencies’ As the GP did not give evidence it is unclear whether this was a preliminary assessment made by him after taking a note of the claimant’s history or if it reflected the claimant’s own view. Unfortunately he has not yet been assessed and it is unfortunate that there have been such delays. If the claimant were assessed as having autism that would mean he would almost certainly fulfil the definition of being disabled under the Equality Act. He gave evidence that he always felt he did not fit in and would obsessively play video games. There are aspects of his evidence which seem to suggest as the Doctor noted autistic tendencies . At present the Tribunal has no formal diagnosis but more importantly does not have the necessary evidence of the level of any such difficulties or understanding of what the claimant’s coping strategies are. The claim on this basis had not been made out. Depression/Anxiety[51]I had regard to advice given by the EAT in the DLA Piper case above. That was also a case involving an alleged depressive/anxiety condition and one of the issues addressed was the likelihood of recurrence. It accepted that when considering the question of impairment in cases of depression, it was useful for tribunals to distinguish between clinical depression and anxiety. It said the first was a mental illness which was “unquestionably an impairment within the meaning of the Act . The second is not characterised as a mental condition at all but simply as a reaction to adverse circumstances (such as problems at work). The medical evidence here, such as it is, does not contain a diagnosis of clinical depression. That might not be fatal where a claimant could point to circumstances showing disabling effects or recurrent disabling effects.[52]The claimant gave evidence that after a row with his mother at Christmas be retreated into himself and became depressed. This led a few weeks later to him losing his job. He was well enough to contact the respondents and attend a disciplinary hearing by the 14 January.[53]The claimant gave evidence of other periods in his life where he felt he had been depressed and anxious. The tow periods discussed seem to follow difficult events such as his parents’ divorce or many years later the breakdown in the relationship with his mother. The latter being the best documented also coincided with the claimant’s loss of his job. It did not appear to be a lengthy period of depression and as noted earlier seems to have ben triggered by these events. It seems on balance that there is no underlying long term depressive illness or at least no underlying condition that has long term day to day effects. Once more the claimant appears to have been disadvantaged by the fact that he has not regularly sought advice from his GP which might show more regular or recurrent periods of depression. One of the reasons for the relative lack of contact is that the claimant expressed strong views that the assistance on offer from GPs , principally anti-depressant medication, was not something he wanted or would agree to take. There was some mention of CBT therapy which he also found unsatisfactory. I explained that even if this sort of treatment was not accepted there might be the possibility of other therapies such as counselling and that if he had seen a GP on the occasion his depression became difficult to cope with he would have the medical notes containing he GP’s observations and diagnosis to provide contemporaneous detailed corroboration of his position which he could then refer to.[54]Considering the evidence as a whole I accept the respondent’s submissions that the claimant has not demonstrated that he is disabled through having a depressive illness. A formal diagnosis of depression is not necessary but assists in recording when the condition occurred and gives some indication of it’s severity and possibly longevity. Even if I accepted, as I do, that the claimant, when depressed just after Christmas, was affected so severely that he could not carry out day to day activities and retreated to his bedroom there is not enough to show that it was likely to last, or had in the past lasted 12 months or was recurrent. It seems to have been prompted by the particular life events that occurred at this point.[55]Taking a step back and considering all these conditions does not particularly assist the claimant. There is simply not enough evidence of the day to day difficulties that they cause or clear evidence of recurrence. It may be that these conditions interact and play off each other but neither individually nor cumulatively is there sufficient material to allow me to make the finding the claimant seeks and accordingly the claim is dismissed.