The Judgment of the Tribunal is that the claimant was a disabled person, for the purposes of section 6(1) of the Equality Act 2010, at the relevant time
REASONS
[1]This was a preliminary hearing which took place remotely. This was not objected to by the parties. The form of remote hearing was video. A face to face hearing was not held because it was not practicable due to the Covid-19 pandemic and all issues could be determined in a remote hearing.[2]The preliminary hearing was to determine whether the claimant was a disabled person, for the purposes of section 6 of the Equality Act 2010 (EqA), at the relevant time. The relevant time was the date of his resignation, namely 3 February 2020. In his ET1 form, the claimant stated that he was a disabled 5 person by reason of ‘depression and related conditions’. In his impact statement he referred to himself has having ‘depression, anxiety and poor mental health.’[3]The claimant gave evidence at the preliminary hearing. A joint bundle of documents was lodged in advance of the preliminary hearing, extending to 10 pages. Findings in fact[4]The Tribunal found the following facts, relevant issues to be determined, to be admitted or proven.[5]In around September 2014, the claimant started to believe he had cancer. The 15 claimant’s GP referred him for numerous tests, which demonstrated that he did not in fact have cancer.[6]Despite this, the claimant continued to believe that he may have cancer and to worry that he may die of cancer. In/around June 2017, the claimant was referred for cognitive behavioural therapy (CBT). This was an eight-week 20 course which he successfully completed. This provided the claimant with a number of coping mechanisms, which he deployed when he started to develop intrusive thoughts. He was also shown a number of videos online, which he could view to assist him, when he started to develop intrusive thoughts. He viewed these on a regular basis (every couple of days) thereafter. 25 7. Notwithstanding this he continued to have intrusive thoughts about cancer and his symptoms intensified. By the end of 2017, the claimant was continuously worried about having cancer and dying from cancer, to the point of paranoia. He was unable to sleep properly as a result of continuous worry. Lack of sleep meant he was tired during the day and that, coupled with continuous worry 30 during the day, meant he was regularly unable to concentrate or focus on tasks and conversations. His mood was very low. He would regularly become tearful at work, but would go to the toilet and cry there, to avoid crying in front of colleagues. This occurred approximately every other day.[8]On 19 January 2018, the claimant was prescribed propranolol, a beta-blocker, 5 to try to alleviate his anxiety. On 23 January 2018, the claimant was also prescribed the anti-depressant diazepam. He continued to take diazepam until 4 April 2018, when he was instead prescribed an alternative anti-depressant, citalopram. His dosage was 20mg per day at that point.[9]The claimant continued to take both propranolol and citalopram throughout 10 2018 and 2019. These helped to alleviate, but not eradicate, his symptoms. He continued to suffer from intrusive thoughts in relation to his health and these continue to impact on his ability to sleep, thereby impacting his ability to focus and concentrate during the day. He continued to have tearful episodes, albeit not as frequently. In September 2018, and again in January 2019, the claimant 15 was prescribed sleeping tablets.[10]During the course of 2019, the claimant’s marriage broke down and his contact with his children was limited. His symptoms escalated, his mood became extremely low and, by the end of 2019, he had developed suicidal thoughts. On 5 November 2019, the claimant’s prescription for citalopram was increased 20 to 30mg per day. That continued until after the claimant’s employment with the respondent terminated.[11]Were he not taking prescribed medication in the period from January 2018 to the date his employment terminated, the claimant would have had very severe anxiety and panic attacks during that period. His mood would have been 25 extremely low continuously. He would have been continuously worried and scared about his health and, in particular, dying of cancer. His sleep would have been significantly disturbed. His ability to focus and concentrate would have been significantly impaired. It is very likely he would have developed suicidal thoughts. Relevant law Disability Status
Relevant law
[12]Section 6(1) EqA provides: ‘A person (P) has a disability if — 5(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.’[13]Schedule 1 of the EqA contains supplementary provisions in relation to the determination of disability. Paragraph 2 states: 10 ‘2(1) The effect of an impairment is long-term if-(a) it has lasted 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 life of the person affected.’[14]Paragraph 5 states 15 ‘5(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-today 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.’[15]The ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (the Guidance) does not itself impose legal obligations, but the Tribunal must take it into account where relevant (Schedule one, Part two, paragraph 12 EqA).[16]The Guidance at paragraph A8 states ‘It is not necessary to consider how an impairment is caused… What is important to consider is the effect of an impairment, not its cause.’ 5 17. The Guidance at paragraph B1 deals with the meaning of ‘substantial adverse effect’ and provides: ‘The requirement that an adverse effect on normal day-to-day activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist 10 among people. A substantial effect is one that is more than a minor or trivial effect.’[18]Paragraphs B4 and B5 provide that: ‘An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation. However, it is 15 important to consider whether its effect on more than one activity, when taken together, could result in an overall substantial adverse effect. For example, a person whose impairment causes breathing difficulties may, as a result, experience minor effects on the ability to carry out a number of day-to-day activities such as getting washed and dressed, going for a walk 20 or travelling on public transport. But taken together, the cumulative result would amount to a substantial adverse effect on his or her ability to carry out these normal day-to-day activities.’[19]Paragraph B1 should be read in conjunction with Section D of the Guidance 25 15, which considers what is meant by ‘normal day-to-day activities’.[20]Paragraph D2 states that it is not possible to provide an exhaustive list of dayto- day activities.[21]Paragraph D3 Provides that: ‘In general, day-to-day activities are things that 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 5 dressed, preparing and eating food, carrying out household tasks, walking and travelling by various forms of transport, and taking part in social activities.’[22]D16 provides that normal day-to-day activities include activities that are required to maintain personal well-being. It provides that account should be taken of whether the effects of an impairment have an impact on whether the 10 person is inclined to carry out or neglect basic functions such as eating, drinking, sleeping, or personal hygiene.[23]The Equality and Human Rights Commission: Code of Practice on Employment (2011) at Appendix 1, sets out further guidance on the meaning of disability. It states at paragraph 7 that 15 ‘There is no need for a person to establish a medically diagnosed cause for their impairment. What is important to consider is the effect of the impairment, not the cause.’[24]At paragraph 16 it states: 20 ‘Someone with impairment may be receiving medical or other treatment which alleviates or removes the effects (although not the impairment). In such cases, the treatment is ignored and the impairment is taken to have the effect it would have had without such treatment. This does not apply if the substantial adverse effects are not likely to occur even if the treatment stops[25](that is, the impairment has been cured).’ 25. In Goodwin v Patent Office [1999] IRLR 4, the EAT held that in cases where disability status is disputed, there are four essential questions which a Tribunal should consider separately and, where appropriate, sequentially. These are: 5a. Does the person have a physical or mental impairment?b. Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?c. Is that effect substantial?d. Is that effect long-term? 10 26. The burden of proof is on a claimant to show that he or she satisfies the statutory definition of disability. Submissions[27]The respondent’s submission, in summary, was that the claimant had failed to demonstrate that any of the 4 elements were satisfied at the relevant time. 15 It cannot be held therefore that the claimant was a disabled person at the relevant time. The first mention of the word ‘depression’ in the claimant’s medical records post-dated his dismissal. It therefore appears that he was not medically diagnosed with depression until 25 February 2020. 20 28. The claimant submitted that he had been taking anti-depressants for over 2 years. That, in itself, demonstrated that his condition was long term. His condition has a huge impact on his daily life.[29]The Tribunal firstly considered whether the claimant had demonstrated a mental impairment. The Tribunal accept that, by the end of 2017 at least, the claimant had a mental impairment which continued until the termination of his 5 employment. The claimant’s symptoms of anxiety, low mood (whether formally diagnosed as depression or not at the relevant time) and paranoia were not a reaction to adverse circumstances. They, cumulatively, amounted to a mental impairment.[30]The Tribunal then considered whether the impairment had an adverse effect 10 on the claimant’s ability to carry out normal day-to-day activities. The Tribunal found that it did. The claimant was unable to sleep properly as a result of continuous worry. Lack of sleep meant he was tired during the day and that, coupled with continual intrusive thoughts during the day, meant he was regularly unable to concentrate or focus on tasks and conversations. His 15 mood was very low. He would regularly become tearful at work.[31]The Tribunal then considered whether that adverse effect was substantial. The Tribunal was mindful that, in considering that question, any medical or other treatment should be discounted and the impairment should be taken to have the effect it would have had without such treatment. In this case, that 20 meant that the prescription medication taken by the claimant, namely propranolol and citalopram, should be discounted. The claimant gave uncontested evidence, which was accepted by the Tribunal, that were he not taking prescribed medication in the period from January 2018 to the date his employment terminated, he would have had very severe anxiety and panic 25 attacks. His mood would have been extremely low continuously. He would have been continuously worried and scared about his health and, in particular, dying of cancer. His sleep would have been significantly disturbed. His ability to focus and concentrate would have been significantly impaired. It is very likely he would have developed suicidal thoughts.[32]In the circumstances the Tribunal was satisfied that the adverse effects on the claimant’s ability to carry out day to day activities were, from the end of 2017 to February 2020, substantial. They were not minor or trivial. 5 33. Finally, the Tribunal considered whether the effect was long term. By 3 February 2020, the claimant had been suffering from these substantial adverse effects on his ability to carry out day to day activities since at least the end of 2017, a period of over 2 years. The effects of the mental impairment were accordingly, by that stage, long-term.[34]In light of the above, the Tribunal concluded that the claimant has demonstrated that he was a disabled person, for the purposes of s6(1) EqA, at the relevant time. Employment Judge: Mel Sangster Date of Judgment: 14 June 2021 Entered in register: 28 June 2021 20 and copied to parties EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4102314/2020 Held in Glasgow on 24 and 25 August 2021 Employment Judge S Walker Tribunal Member I Ashraf Tribunal Member A Grant Claimant In person, Mr J Bolger Pointmedia Creative Ltd Respondent Represented by: Mr Maxwell, solicitor
Issues
[35]The claimant was regularly late for work at this time. This was due to him taking medication although as noted above, neither Mr Winter nor M r Murray were aware of that. This caused problems as he had to speak to the night shift before they left and schedule work for the day shift. When he was late Mr Winter had to step in and take over to keep thing moving.[36]On 3 February, the claimant was late. Mr Winter sent him a text to ask if he was OK? When the claimant arrived, Mr Winter said his timekeeping would need to improve and he was akin to the captain of the team. He needed to lead by example. The claimant said he need to be fair to Mr Winter and Mr Murray and he wanted to meet them to have a discussion. Mr Winter said to speak to Mr Murray.[37]The claimant went to see Mr Murray and said he was resigning. Mr Murray asked if he was sure and suggested they have a meeting to discuss it.[38]It was arranged that they would meet at Mr Murray’s house. Mr Murray, Mr Winter and the claimant all drove there in separate cars. Mr Winter was last to arrive.[39]The claimant had already told Mr Murray he wished to resign and Mr Murray tried to dissuade him. When Mr Winter arrived, Mr Murray told him the claimant was going to resign. Mr Winter did not wish the claimant to leave. He said to the claimant that this was not the solution. He had a well-paid job and running away would not solve anything. The claimant said he had a lot of things to sort out in his life . Mr Winter said that it was drastic to walk away from his job. The claimant said he was “100%. He needed to sort it out." The discussion took between 30 minute and an hour,[40]Mr Murray said that he would formalise the resignation with the claimant and Mr Winter then headed back to the office to take over the claimant’s role having hugged the claimant in an emotional good bye. Mr Murray then asked the claimant to write out his resignation which he did. The claimant then left and did not return to the respondent’s premises.[41]Following this meeting, on 3 February, there was an exchange of texts between the claimant and Mr Winter. Mr Winter said “ I’m absolutely gutted mate., over the last few months I thought that we’d be able to get you through your issues and I never thought it would come to this”. He also said " It's a big loss for us and we’ll soldier on but Point media has lost one of the good guys., gutted mate.choking back the tears as I’m typing this”[42]The claimant responded "I’m honestly gutted too mate I’ve broke my heart since I left Graeme’s house. You have ben like a father figure to me dave and I’ll be forever grateful for that mate. I’ll get back into it whether its with Pointmedia or not because to be honest it’s all I’ve ever known mate. I love all you guys in there you more than most but I’ll get back to myself in the next month or two I know I will dave. I’ll keep in touch though. You and Graeme have been nothing but supportive of me. x”[43]The claimant and Mr Winter continued to exchange texts over the next few weeks. The claimant did not indicate at any time that he had felt forced to resign or that he wanted to return or that he was on some kind of break. New management information system[44]The respondent through 2019 had been putting in place a new Management Information System. It had been implemented in the Estimating part of the business and was due to be implemented into Production by the end of January 2020. That date was put back because of the claimant’s absence. When the claimant resigned, Mr Murray appointed another employee, Steven Chapman to progress the new system. Mr Murray and Mr Chapman spoke to the suppliers and the date for implementation was put back again to the end of March 2020. There was a cost to the respondent with each delay. Implementing this system was the primary focus of the business in February 2020.[45]On 25 February 2020, the claimant emailed Mr Winter and Mr Murray to say *7 am writing to cancel my previous resignation letter that I copied form Graeme at the house”. He said that “following a conversation with my doctor and citizen advise what I done the was wrong and completely uncharacteristic of me due to not being in a mental state to do that” . He said he was struggling and asked to come in on Friday to discuss. Neither Mr Winter nor M r Murray replied to that letter. They were focussed on the implementation of the new system.[46]There were texts between the claimant and Mr Winter on 26 and 28 February 2020. The claimant was asking if his salary could be paid early. Mr Winter said he would ask Mr Murray about it.[47]Mr Winter spoke to the claimant on the phone about this time. He said that the claimant could not come back in the middle of the implementation of the Production system, that “that ship has sailed”. However he was concerned that the claimant was in trouble financially and he said he would give him what he could. He met the claimant in Tesco’s car park on 3 March and gave him what he had in his personal (as opposed to joint account). This was about £1,500.[48]There were more texts between the claimant and Mr Winter. On 4 March, the claimant mentioned going for another job and he was upset that Mr Murray has told the potential employer that the claimant owed them money.[49]On 1 1 March 2020, the claimant sent a text to Mr Winter that caused him concern. The claimant wrote “ Listen mate no going to lie but I’m in a bit of trouble, I’ve been ducking and diving since way before Xmas. Because of financial strain I was more or less tapping Peter to pay Paul and its caught up dave. I know its not your problem mate but any chance you could see Graeme to pay the last of my salary early. I need to get this guy off my tail Dave I’m at my wits end mate and don’t know where to turn I’m constantly looking over my shoulder. I should’ve been honest with you ages ago but I was generally embarrassed of how bad it’s got mate”[50]Mr Winter was concerned as this confirmed his suspicion that the claimant was in serious financial trouble. Mr Murray agreed to pay the claimant the final months’ salary early. 51 . The claimant then, on 1 5 March said he was willing to take a pay cut of £1 0000 to come back. He said, '7can't walk away with absolutely fuck all”. He said he was now being treated for his mental health and was ready to work again. He also said he thought his notice was 3 months and he had only been paid one. (It should be noted here that there was not obligation on the respondent to pay any notice and this was done as a goodwill gesture.)[52]When lockdown was happening towards the end of March 2020, the claimant kept messaging Mr Winter about money. This was causing Mr Winter a great deal of stress. On 26 March 2020, he emailed the claimant to say he didn’t have any answers and referred to the personal loan he had given the claimant and the business loan. He said there was no more he could do. He has not seen the claimant since. Relevant law and submissions[53]Mr Maxwell helpfully set out the law in this area and also how he said it should be applied in this case in his detailed submissions. These have not been set out here in detail here, simply because the law is not in dispute and because the case revolved around the disputed facts. Discussion and decision Unfair dismissal[54]The key issue in the case was how the claimant’s contract came to an end and the circumstances in which he came to write a letter of resignation at Mr Murray’s house on 3 February 2020.[55]Mr Murray and Mr Winter gave clear evidence that the suggestion of a meeting came from the claimant and Mr Murray gave clear evidence that when claimant arrived at work that day he said he was resigning. The claimant says it was Mr Murray who instigated the meeting.[56]There is then a dispute about what happened at the meeting. Mr Murray and Mr Winter gave clear evidence that the claimant said he was going to resign and that they tried to talk him out of it. The claimant says that he was forced to resign under duress. He said that he had felt intimidated and that Mr Murray wrote out the letter of resignation and forced him to copy it. He also said that he had been told he could return to his job when he was able to.[57]The Tribunal has unanimously and without hesitation accepted the evidence of Mr Murray and Mr Winter. The Tribunal found Mr Murray and Mr Winter to be credible witnesses who gave clear and consistent accounts of the meeting. They also gave detailed evidence of their extensive financial and emotional support for the claimant over a long period. The Tribunal found Mr Winter a particularly persuasive witness who described his close relationship with the claimant over the years and his distress at how events had unfolded and his concern for the claimant was evident. Mr Winter became tearful while giving evidence to the Tribunal.[58]Mr Murray and Mr Winter’s accounts are also supported by the tone of the text messages between the claimant and Mr Winter on the day of the claimant’s resignation and in the weeks after it. There was no suggestion in these exchanges that the claimant had felt intimidated or forced to resign or that he believed he was on some kind of break and could return at any time. On the contrary, the exchanges show a clear and supportive relationship between the claimant and Mr Winter. There is also reference to the claimant looking for another job which does not suggest he considered that he was on a break before returning to his old job. Even when he asks to withdraw his resignation, he does not suggest that he was forced into it nor that there was an agreement that he could simply return when he wanted to.[59]The respondent’s account was also simply more plausible in light of the historic support both Mr Murray and Mr Winter had given to the claimant and the close relationship that they had, particularly the claimant and M r Winter. The claimant had been provided with substantial financial support over the 8 years he was employed both from the respondent company by way of loans but also from Mr Murray and Mr Winter individually. This continued after the claimant’s resignation with Mr Winter, in particular, trying to help the claimant by paying him notice (to which he was not entitled) , having that paid early and also giving him £1,500.[60]The Tribunal did not accept that the claimant would have felt intimidated. On the contrary there appeared to a hug between the claimant and Mr Winter. The text messages do not support a suggestion that the claimant was intimidated by Mr Murray or Mr Winter. If the claimant had felt intimidated it is clear he could have asked Mr Winter for support and that would have been provided. 61 . There were some features of the respondent’s account, as pointed out by the claimant, which the Tribunal accepts do require an explanation. Why did the meeting take place away from the office? Why did the letter of resignation have to be written immediately? Why would the claimant have resigned when he was in financial difficulties?[62]The Tribunal accepted the account of Mr Murray and Mr Winter that they did not want the conversation to be overheard as they did not know what the claimant was going to say. The Tribunal also considered it relevant that a previous meeting between Mr Murray and the claimant to discuss his personal finances took place in a cafe and not at the office.[63]The Tribunal also accepted Mr Murray’s evidence that he insisted on written resignations in every case. The Tribunal also considered it was likely that the decision having been made, Mr Murray wanted to tie up the loose ends and get back to the business. This was a critical time for the business and, if the claimant was resigning, best to have a clean break and move forward.[64]The Tribunal has struggled with an explanation for why the claimant, in a difficult financial position and with a supportive employer, would have chosen to reign. It does not make sense. It did not seem to make sense to Mr Murray or Mr Winter.[65]The Tribunal considers was possible that, because of his state of mind around that time , that the claimant simply does not remember what was said. This would also explain why he took the decision to resign when that made no sense at a time when he was having severe financial difficulties. It may also be that, as Mr Winter suggested, he was in real financial trouble and people were coming after him and he didn’t want to involve Mr Murray and Mr Winter. However, the Tribunal does not have to reach a firm conclusion on that. It is for the claimant to prove that he was dismissed , notwithstanding he signed a letter of resignation. The Tribunal considers he has not discharged that burden of proof.[66]The Tribunal has accepted that the claimant instigated the meeting and resigned voluntarily, there was no intimidation or duress and there was no agreement that he could return when he felt better. There was no obligation on the respondent to re-employ him when he requested it.[67]The claimant has therefore not been dismissed and there is no need to consider the complaint if unfair dismissal further. That complaint is dismissed. Direct discrimination[68]It was clarified at an early stage in proceedings, at a time when the claimant was legally represented , that the claim in respect of disability discrimination under the Equality Act 2010 was one of direct discrimination only. Section S13 defines this as less favourable treatment because of a protected characteristic, in the current case, this is said to be disability .[69]It is not necessary that the discrimination was consciously motivated by disability and disability need not be the sole cause provided it was an “important or significant cause” of the less favourable treatment. This is regardless of motive or intention.[70]It seems that the alleged discriminatory acts relate to the alleged resignation under duress (the “dismissal”) and also the respondent’s inaction in not permitting the claimant to withdraw his resignation. 71 . The Tribunal has found that it was the claimant who instigated the meeting on 3 February and that he resigned voluntarily. There was no dismissal, whether discriminatory or otherwise.[72]As far as not allowing the claimant to withdraw his resignation is concerned, there was simply no evidence from which the Tribunal could conclude that someone who was not disabled would have been treated differently, let alone more favourably.[73]In these circumstances, the burden of proof does not shift to the respondent and they do not need to prove that they did not discriminate. However, in any event, the Tribunal were satisfied that the account given by the respondent’s witnesses was genuine. The claimant had left the business when it was at a critical point in relation to a new process and the business had readjusted to his absence. Mr Winter, Mr Murray and the reorganised team were focussed on the implementation of the new system and it would have been very disruptive to readjust again to accommodate the claimant, especially at this critical point.[74]The claim of direct disability discrimination is dismissed.
Conclusion
[75]The Tribunal has found this a troubling case. It remains unclear why the claimant acted as he did and gave up a well paid job in which he was supported at a time when he was in financial difficulties.[76]The Tribunal also notes that Mr Murray indicated that the respondent would change the way it treats its employees from now on. That is obviously a matter for the respondent. However the Tribunal wishes to record that having heard the evidence, the respondent appears to have been an extremely caring and supportive employer to the claimant and to others and considers that it would be a pity if this unusual case changed that culture.