Mrs R Quarcoo v Crown Office (The Scottish Ministers): 4113563/2019

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 4113563/2019

Between

Mrs R QuarcooClaimant

Crown Office (The Scottish Ministers)Respondent

Before

Employment Judge Cowen

Date 1 September 2021

JUDGMENT

[1]As set out at the PH before EJ d’Inverno on 16 June 2020, the issues for consideration by this tribunal were; a) whether, by reason of time bar, the “Particulars of Claim” contained in a paper apart first intimated to the respondents and tendered to the Tribunal on the 15th of March 2020 should or should not be received and allowed to form part of the claimant’s pleaded claim; (“Issue A”) and b) Let it be assumed that the Particulars of Claim of 15th March 2020 are received and allowed to form part of the claimant’s pleaded ETZ4(WR) claim, has the claimant Title to Present and the Tribunal Jurisdiction to Consider her claims as so particularised by reason of asserted time bar (“Issue B”). The Facts

[2]The Claimant resigned from her position on 4 September 2019 and her effective date of termination was 8 September 2019.

[3]The ET1 was received on 27 November 2019 making claims for unfair dismissal and race discrimination with an assertion on the ET1 form that the claims were exempt from the requirement to register with ACAS for early conciliation prior to issuing the claim. The claims were rejected on 2 December 2019 by a notice sent to the Claimant’s representative. The reason for rejection was due to no such EC exemption being applicable. The Claimant became aware of this on 5 December when she contacted the tribunal to ask about the progress of her claim.

[4]On 16 December 2019 the Claimant wrote to the Tribunal to ask for reconsideration of her discrimination claims to be accepted. She also indicated that her previous adviser Mr Akinsanmi was not a qualified lawyer and had provided incorrect advice, as he did not tell her of the need to register a claim for early conciliation with ACAS. The Claimant enclosed an EC certificate which was issued on 9 December having been registered the same day. The Claimant therefore provided a valid EC certificate number on 16 December 2019.

[5]The tribunal indicated to the Claimant that her claim was accepted on 27 December 2019, although no paper apart was attached to the ET1 to provide details of the claim.

[6]On 6 January 2020, the Respondent sought a copy of the paper apart, which the ET could not provide. On 9 January 2020 the ET wrote to the Claimant to request a paper apart. It was at this point that the Claimant discovered that the Grounds of Claim, (also referred to as the Particulars of Claim), had not been filed with the ET1. She provided the Tribunal with a copy of this document on 15 March 2020, which also purports to include a claim for disability discrimination.

[7]An ET3 was filed with the tribunal on 23 January 2020, requesting further particulars of the claim and asserting a time bar on the claims made. Thereafter on 29 January the claim and response were accepted by EJ Eccles and a preliminary hearing was listed for 27 March 2020.

[8]At the Preliminary Hearing on 27 March 2020, before EJ d’Inverno, the Claimant accepted that the particulars of claim were not attached to the ET1. An order was made specifying that the claim was not rejected for lack of specification. The Claimant was given an opportunity to provide further details and the Respondent an opportunity to amend their response if appropriate. The claim for unfair dismissal was also dismissed upon withdrawal.

[9]The Claimant provided the document in accordance with the order and also an Amended Grounds of Claim to the ET1 on 24 April 2020.

[10]On 16 June 2020, the matter was set down for a preliminary hearing to address the jurisdiction and time bar points. The Law Rejection of claim

[11]Rule 12(2) of the Employment Tribunal ( constitution and rules of procedure) Regulations 2013 an ET1 can be rejected if, amongst other things; a) the ET has no jurisdiction to consider it, b) It is in a form which cannot be sensibly responded to, c) it institutes relevant proceedings, but does not contain an EC number or confirmation that an exemption applies

[12]The tribunal was taken to the case of Chohan v Derby Law Centre

[2004] IRLR 685

in relation to the proposition that the failures of the legal representative as to time limits should not be visited upon the Claimant. Continuing Act s.123 Time Limits (3) For the purposes of this section—(a) conduct extending over a period is to be treated as done at the end of the period;

(b) failure to do something is to be treated as occurring when the person in question decided on it. Time Bar s.123 Time limits (1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of— (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable. Amendment The Tribunal was reminded of the case of Cocking v Sandhurst ( Stationers) Ltd and other

[1974] ICR 650

, where the process of considering an application to amend to include other claims was set out. Similarly the principles in Selkent Bus Co Ltd v Moore

[1996] ICR 836

where it was stated by Mummery J, that the Tribunal should take into account all the circumstances including; - The nature of the amendment, - The applicability of time limits and the timing of the application, - Balancing the hardship and injustice of allowing the amendment against the hardship and injustice of refusing it,

[13]The claim was accepted by the ET on 16 December 2019 when the EC certificate was filed and is therefore a valid claim. The ET1 had the issues of Unfair Dismissal (now dismissed) and race discrimination ticked on the form at box 8.1. The Claimant therefore indicated from the outset and the Respondent understood from the end of December 2019 when it received the claim, that a claim of some description based on the protected characteristic of race was being made.

[14]The Tribunal finds that the Claimant was not aware of the failure by her representative to file the Grounds of Claim, until 9 January when the ET requested the paper apart from the ET1. It took the Claimant until 15 March 2020 to provide the Grounds of Claim, although the Claimant asserts that this document was available for her representative to file with the ET1 in November 2019.

[15]The Grounds of claim that were first provided on 15 March 2020 were the first opportunity for the Respondent to be aware of the details of the claim which were being made. These details were provided after the initial ET1 was filed and accepted by the ET. Neither party has drawn the Tribunal to any rule, or authority which suggests that details of the allegations made must be filed within a specified time limit.

[16]The Tribunal has taken into account the fact that EJ d’Inverno at the PH on 27 March 2020 under the powers of rule 26 ordered the Claimant to provide further and better particulars of these Grounds of Claim.

[17]The Tribunal has considered the case of Secretary of State for Business, Energy and Industrial Strategy v Parry and Another

[2018] EWCA Civ 672

which stated that a claim should only be rejected where the judge can be sure that it cannot sensibly be responded to. Otherwise, the ET should accept the claim and the Respondent can request further and better particulars if necessary. This appears to be exactly what has occurred in the present case, without any prejudice to either party.

[18]The Tribunal considers that there is no rule or time limit to prevent the Grounds of Claim being accepted by the Tribunal and hence no consideration of just and equitable need be considered at this stage. Issue B

[19]The Second issue for this Preliminary Hearing is whether any of the points raised in the Grounds of Claim are out of time. Continuing Act

[20]The acts set out in the Grounds of Claim extend from 21 November 2017 to 6 September 2019 and are said to be carried out by the Claimant’s line manager and Head of Department amongst others. It is not for this tribunal to decide whether there is a continuing act shown by the allegations, as that will require consideration of the evidence, findings of fact and the application of the law to those facts. Those are matters which will have to be addressed in a final hearing. At this preliminary stage, the Tribunal must consider whether the allegations are capable of amounting to a continuing act.

[21]The Respondent asserts that the time limit started to run either on 24 July 2019 on the date of the last act of discrimination which is asserted, save for the resignation, or on 15 August, the Claimant’s last day of active work.

[22]The Claimant asserts that she made a number of complaints of race discrimination in July 2018 and October 2018 and that the failure to address these led to her absence from work and ultimately her resignation. The Claimant asserts that her resignation on 6 September 2019 was an act of discrimination. The evidence in relation to this point will require to be tested at trial. It is possible, based on this assertion that the series of events could amount to a continuing act. The Tribunal at the final hearing will consider whether there is in fact a continuing series of events within the allegations. Time Bar

[23]The Claimant’s final pleaded allegation is dated 6 September 2019, although the Respondent accepts that the effective date of termination was the 8 September 2019. The Claimant’s claims are both subject to the three months time limit set out in s. 123(1)(a) Equality Act 2010, the application of which requires the claims in this case to be issued by 7 December 2019. The EC certificate having been filed on 16 December 2019 means it was filed 9 days beyond the time limit.

[24]The Tribunal does not consider it relevant to this decision that the Grounds of Claim were not filed until 15 March 2020, the question for the Tribunal is in relation to the date that the claim was accepted. Consideration was therefore given to the reasons why the claim was delayed between 7 December 2019 (the statutory time limit) and 16 December 2019 when the claim complied with the requirements of rule 12 ET Rules.

[25]The provisions of s.123(1)(b) requires the tribunal to consider whether an extension to the time limit would be just and equitable in all the circumstances.

[26]The Claimant’s evidence showed her reliance upon her adviser at the time to file the ET1. She believed him to be an experienced adviser in the area of discrimination claims. The Claimant relied upon the adviser who did not provide her with the details of the time limits or the requirement for EC registration. He did not provide her with a sufficiently competent service to meet all the requirements of rule 10 ET Rules. Whilst she was aware at the time the ET1 was filed that he had not included all the detail which he had indicated that he would, she was not aware of his omission in respect of the EC certificate until she contacted the Tribunal on 5 December 2019 to chase them for confirmation of a case number.

[27]The issue of the lack of EC certificate number was corrected by the Claimant on 16 December 2019, some eleven days after she was made aware of the rejection. This was the only basis upon which the tribunal sought to reject the claim. A valid claim was therefore made on 16 December 2019, as indicated by the tribunal’s letter sent on 27 December 2019. This Tribunal therefore does not consider any preliminary issue in relation to whether the failure to provide an EC certificate number renders the claim invalid, as that has been resolved. It is relevant only to the extent that it provides the date on which a valid claim was made to the ET under the rules set out in Adams v British Telecommunications plc

[2017] ICR 382

, EAT.

[28]The issue for this Tribunal is to consider whether it is just and equitable to extend time by the 9 days beyond the time limit that it took for the claimant to file the EC certificate and to allow the claim to proceed.

[29]The Tribunal accepts that the Claimant challenged her adviser the day after she became aware of the error and also contacted ACAS for advice on how to carry out the relevant process. She applied for her EC certificate the following working day and applied to the ET for reconsideration the following week. The Tribunal considers that the Claimant therefore took appropriate steps within a short period of time to rectify the mistake made by her representative.

[30]The Tribunal takes into consideration the balance of prejudice to the parties in allowing the extension of time. The Tribunal considers that to dismiss the claim would prevent the Claimant from pursuing what may be unlawful action by her former employer. However, to allow the claim to proceed would be to require the Respondent to defend a claim which was filed 9 days late. This is not a claim where it could be said that the delay leads to any uncertainty that a fair trial could still occur and does not place any additional burden or prejudice on the Respondent. The balance of fairness overall therefore lies with the Claimant being allowed to pursue her claim. Disability Discrimination claim

[31]The content of the Grounds of Claim gave rise to one further consideration for the Tribunal – being the additional disability discrimination claims made in the Grounds of Claim which were not referred to on the ET1 form. The Respondent asserts that this amounts to an application for amendment of the claim to include a claim for disability discrimination. The Claimant submits that as the Grounds of Claim are part of the claim, in the same way as the further and better particulars (ordered on 27 March 2020) and hence no application is required.

[32]The Tribunal considered that the addition of a claim with regard to a separate protected characteristic would require an application to amend, but considered that the Tribunal had raised the issue of amendment of its own volition. The Tribunal therefore applied the principles of Selkent in considering the application.

[33]The Tribunal took into account all the circumstances of the case, including the manner in which the claim had come to the attention of the Respondent. The Tribunal considered that the amendment to add a disability discrimination claim arises out of the same facts and time period as the existing race discrimination claims. However it does assert a different protected characteristic and one which will require the Respondent to engage in a different defence than the existing claim.

[34]The Tribunal also considered that the detail of the claim for disability discrimination has been provided at the same time as the detail of the race discrimination claim. Whilst the Respondent was already on notice of a race discrimination claim from the ET1, they were not aware until receipt of the Grounds of Claim of a disability claim. However, given that the details were known at the same time, there does not appear to be any distinction to be made as a result of any delay.

[35]The Claimant’s reasoning for not drawing the matter to the attention of the Tribunal earlier was due to the lack of professional service from her adviser. The Claimant asserts that the content of the Grounds of Claim were the same as the Grounds which were drafted in November 2019 to accompany the ET1, which she had discussed with her adviser. The Tribunal does not accept this evidence as the ET1was submitted on 27 November and yet the Grounds of Claim refer at paragraph 73 to correspondence of 28 November 2019.

[36]The Tribunal concludes that these Grounds of Claim were drafted after the ET1 was submitted, hence the reason why the ET1 does not include a tick box for a disability discrimination claim. However, the Tribunal concludes that the claim for disability discrimination should be allowed to proceed, as there has been no delay to the proceedings by this addition. There is no prejudice to the Respondent in having the claim added at this stage and the prejudice to the Claimant of having her potential claim dismissed outweighs any inconvenience to the Respondent of an additional claim.

[37]The disability discrimination and failure to make reasonable adjustments claims should be allowed to proceed. Next Steps

[38]This preliminary hearing did not consider the Amended Grounds of Claim which were filed on 24 April 2020. The parties are asked to indicate whether those amendments are agreed, or whether a further PH will be required to consider whether the amendment should be allowed.

[39]Thereafter, a further case management PH will be required to consider directions for the progress of the claim.

[1]The Claimant was represented by Mr D Stephenson, Barrister. She asserted (amongst others) claims of Disability Discrimination under the Equality Act 2010 (EA 2010).

[2]The Respondent was represented by Mr R Turnbull, Solicitor.

[3]The Parties had lodged a Bundle of Documents with the Tribunal for the purposes of the Open Preliminary Hearing. The Claimant also produced a Witness Statement which was to be taken as her evidence in chief.

[4]The sole issue for determination of the Tribunal at the OPH was disability status in terms of section 6 of the Equality Act 2010 (EA 2010). In particular, whether from the period 20 November 2018 to 23 July 2019 the Claimant was disabled under section 6 of the EA 2010.

[5]The Tribunal heard evidence from the Claimant. No witnesses gave evidence for the Respondent. Findings in Fact

[6]Having heard the evidence of the Claimant and considered the documentary evidence before it the Tribunal made the following findings in fact:6.1 The Claimant is an experienced Civil Servant having worked in the Civil Service since 26 January 2009. She has an MBA in Finance from the University of Leicester and recently qualified as an accountant with the Chartered Institute of Management Accountant (CIMA).

6.2 The Claimant was employed by the Respondent from 18 September 2017 as the Assistant Finance Business Partner on transfer from the Department for International Development. She was responsible for the High and Local Court functions.

6.3 In or around August 2018 the Claimant suffered from stress and anxiety with symptoms of low mood and poor concentration. She found it difficult to do everyday tasks such as preparing lunch for work at that time. The Claimant became increasingly concerned about her low mood after reading an article contained in one of the TU bulletins in September 2018.

6.4 The Claimant was afraid of the potential stigma and negative impact on her if she disclosed details of her condition.

6.5 Her symptoms deteriorated to the extent that she informed the Respondent of her symptoms in October 2018. At this time the Claimant found it difficult to commute to work and carry out everyday tasks, such as shopping and watching TV. Her sleep was severely affected. She lost interest in everything.

6.6 By 14 November 2018 the Claimant could no longer cope with life. She was anxious and was unable to concentrate. She found it difficult to read a book and follow through as it became difficult to concentrate - her mind was often all over the place. She lacked energy and mobility. She could not do everyday household chores such as the dishes, cleaning and tiding up. She had to have her husband take over cooking as well as the household chores. She had persistent general low motivation and lack of interest in everyday activities. She stopped attending regular weekly social activities due to loss of interest. She lost weight due to a loss of appetite and couldn’t eat. Her weight dropped from 62kg to 53kg. She ceased regular attendance at church on Sundays due to lack of motivation. She was unable to fully concentrate during the service.

6.7 The Claimant consulted her GP, Dr Elizabeth Day, on 20 November 2018. The Claimant was diagnosed with anxiety and signed off work for two weeks.

6.8 The Claimant was additionaly diagnosed wth depression on 15 February 2019.

6.9 The Claimant’s symptoms persisted and she consulted Dr Day on 4 and 15 February, 15 March , 12 April, 9 May, 6 June and 4 July (all 2019). After having been signed off work for 14 days the Claimant was then signed off for a further period of 28 days. Dr Day stated the absence on each ocassion as being due to “stress at work/work stress”.

6.10 The Claimant was referred by Dr Day for Counselling Therapy and had 2 sessions with a Mental Health Advisor on 28 Feb 2019 and 7 March 2019.

6.11 Dr Day prescribed anti-depressant medication (Fluoxetine) to help the Claimant manage her symptoms of stress and anxiety. The Claimant took a 20mg capsule once a day for six months from 15 March 2019.

6.12 Dr Day enrolled the Claimant on an Anxiety programme which she attended weekly untill end of July 2019.

6.13 Ms Aitkens (the Claimant’s line manager) made an Occupational Health Referral (OHR) on 21 March 2019. The OHR stated that the Claimant “had been placed on medication” and “was struggling to leave” her house.

6.14 The Claimant attended for assessment by Occupational Health on 25 March 2019. An Occupation Health Report was produced dated 1 April 2019. The Report stated the following:6.14.1 The Claimant was unlikely to meet the definition of disability under the Act.

6.14.2 The Claimant has psychological symptoms of work stress.

6.14.3 Any impairment or effect is unlikely to last longer than 12 months.

6.14.4 Any condition is unlikely to substantially impact upon normal day to day activities.

6.15 On 17 July 2019, Dr Day completed a “fit note” for the Claimant. Dr Day ticked the box that the Claimant “may be fit for work taking account of the following advice”. The advice specified was a “phased return to work”.

6.16 Dr Day produced a report dated 21 April 2020 at the Claimant’s request. It is not known what information was provided to Dr Day as to the points the report had to cover. Dr Day’s report stated the following:6.16.1 the Claimant was diagnosed anxiety on 14 November 2018 and additionally diagnosed with depression on 15 February 2019. Symptoms including low mood, irritability and loss of appetite, lack of motivation, poor sleep and poor concentration were mentioned.:

6.16.2 “ I would agree that her ability to carry out normal day to day activities would have been adversely affected for a period of time. The above symptoms including lack of motivation and poor concentration would mean she could only carry out normal day to day activities with difficulty. I can also confirm that this effect was substantial.”

6.16.3 “It is possible for depression to recur and relapse, however at the time of writing there has been improvement…. and I have no reason to anticipate a recurrence of her symptoms. However should she experience similar workplace stress and bullying in the future there is certainly a likelihood that her condition would recur.”

6.16.4 The Claimant was treated with Fluoxetine 20mg for six months from 15/3/2019.

6.16.5 It is likely symptoms of insomnia, poor concentration, low mood and loss of appetite would have been more sever and for a long duration had she not taken medication.

6.16.6 “The substantial adverse effects started to apply on 14/11/2018 and lasted until 24/7/2019…My impression was that the main cause of depression was workplace stress.”

6.16.7 If the Claimant returned to work “with similar stressful working conditions her condition could recur”

6.17 The Claimant suffered from anxiety from 14 November 2018 until 24 July 2019 and aditionaly depression from 15 January 2019 until 24 July 2019. Her symptoms and the adverse effect on her ability to undertake normal day to day activities persisted throughout and was not minor or trivial.

6.18 The Claimant’s anxiety and depression was likely to recur because the circumstances that gave rise to her absence had not been dealt with and her grievances and complaints of discrimination remained unresolved.

6.19 When the Claimant returned to work on 24 July 2019 she met with and discussed her working arrangements with Mark Howells, the Director of Finance, who was now her Line Manager. Mr Howells told the Claimant that her working arrangements would be changed after six weeks. She challenged the new arrangement ( to work in Edinburgh 5 days instead of the usual 3 days) and considered it as a breach of contract. This caused her further anxiety The Relevant Law Disability Discrimination

[7]The starting point for a Tribunal is whether or not a Claimant has a qualifying disability under section 6 of the EA 2010. Section 6 provides: Disability (1) A person (P) has a disability if— (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.

[8]The onus of proof of impairment is upon the Claimant on the balance of probabilities. Impairment

[9]Royal Bank of Scotland v Morris

UKEAT/0436/10

at paragraph 63 and 55 the EAT emphasised the importance of expert medical evidence for the existence or not of a mental impairment where an alleged disability takes the form of “depression or (similar) a cognate medical impairment.” Further, that “the issues will often be too subtle to allow [the Tribunal] to make proper findings without expert assistance.”

[10]In the case of J v DLA Piper UK LLP

UKEAT/0263/09

paragraph 42 noted that the distinction between symptoms of mood and anxiety caused by clinical depressio nand those that derive from a ‘medicalisation of work problems’ or ‘adverse life events’.

[11]In Herry v Dudley Metropolitan Council and Governing Body of Hillcrest School

UKEAT/0101/16

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

[12]Schedule 1 paragraph 2.(1) of the EA 2010 provides: 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

[13]Substantial means more than minor or trivial (Goodwin v The Patent Office

[1999] IRLR 4

EAT). If an impairment has had a substantial adverse effect on a person’s ability to carry out normal day-to-day activities but that effect ceases, the substantial effect is treated as continuing if it is likely to recur (Schedule 1, paragraph 2.(2) of EA 2010). Likely to recur is interpreted as “could well happen” (The Guidance on the Equality Act 2010 (published by the UK Government). It is not assessed on the balance of probabilities. Normal day to day activities

[14]The focus of the EA 2010 is things that the Claimant either cannot do or can only do with difficulty, rather than on the things the Claimant can do. The Guidance on the Equality Act 2010 (published by the UK Government) states at page 34 “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 dayto-day activities can include general work-related 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.”

[15]Aderemi v London and South Eastern Railway Ltd

[2013] ICR 591

EAT, Langstaff P said, “It is clear first from the definition in section 6(1)(b) of the Equality Act 2010, that what a Tribunal has to consider is an adverse effect, and that it is an adverse effect not upon his carrying out normal day-to-day activities but upon his ability to do so. Because the effect is adverse, the focus of a Tribunal must necessarily be upon that which a Claimant maintains he cannot do as a result of his physical or mental impairment. Once he has established that there is an effect, that it is adverse, that it is an effect upon his ability, that is to carry out normal day-to-day activities, a Tribunal has then to assess whether that is or is not substantial. Here, however, it has to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial.”

[16]A tribunal considering the question of disability should ensure that each step is considered separately and sequentially and that tribunals and courts should give a purposive construction to the legislation, which is designed to confer protection rather than restrict it Goodwin.

[17]A tribunal should look forward from the date of the alleged discriminatory act in considering whether the adverse effect was likely to last at least 12 months or recur. The position must be considered looking forward as at that date because likelihood is not something to be determined with the benefit of hindsight (Parnaby v Leicester City Council

UKEAT/0025/19/BA

). Submissions

[18]Both Parties provided written submissions which they supplemented orally. Discussion and Decision Disability

[19]The Tribunal considered whether or not the Claimant had a disability as defined in section 6 of EA 2010.

[20]In this regard the Tribunal adopted and followed the approach in Goodwin that each step has to be considered separately and sequentially, and, that tribunals and courts should give a purposive construction to the legislation, which is designed to confer protection rather than restrict it.

[21]The Tribunal also noted that the Claimant’s evidence was largely unchallenged by the Respondent. The thrust of the Respondent’s argument was to the effect that the OH Report should be preferred over the Medical Report from Dr Day on the following basis: “I submit that the occupational health report should be preferred to determine disability status. This is for the following reasons. Firstly, the occupational health report is giving its view at the time of the relevant period – the 20 time the alleged acts of discrimination are committed or have already been committed. And that’s the time that matters for the Tribunal. Whereas, the GP is talking with the benefit of knowing what happened subsequently. And this Tribunal cannot be confident that the GP does not have that in mind when commenting about the past. The Tribunal cannot be confident that that has in some way subconsciously coloured the GP’s view as to what was really the case at the relevant 25 period. We haven’t heard from the GP. The GP’s view is clearly not saying: at the time of the relevant period, this is likely the situation. The GP’s view is in hindsight. Secondly, the occupational health report is prepared by an entirely independent expert who does not have and could not be influenced by an ongoing professional relationship with the Claimant like the Claimant had with the GP. Generally, I think it’s fair to say that on top of their 30 professional obligations, GPs have a loyalty towards their patients and are driven by the patient’s needs, demands and wants as the service user. So compared to the occupational health physician, I submit the GP here is on the balance of probabilities, less independent. Thirdly, the report is from a specialist in occupational health, in other words – the precise issues specifically designed to help determine disability status for employers. It was by a professional 5 person whose discipline was obviously relevant to a consideration of the Claimant’s circumstances and condition i.e. work related stress. I think it would be within the Tribunal’s knowledge that GPs generally are not trained to answer these specific and legal questions relating to employment and work. If it’s not within the Tribunal’s knowledge, we have certainly heard no evidence that this particular GP had any training in this area or knowledge and experience of 10 the Respondent’s business or area of work – which is relevant to determine the cause of the issues the Claimant experienced and how long they are likely to last. Whereas these are questions that an occupational health physician advises on, typically on a weekly basis – that is their job. I think in all likelihood, the occupational health physician is in a better position here in that respect. 15 Fourthly, we do not know the context to the GP letter and how the questions were framed and what the information that was provided to lead to those conclusions in the letter. What we do know is that the GP says in her letter, “I would agree” and “I can also confirm” when talking about the adverse effect and whether it was substantial or not. We don’t know who the GP is agreeing with, probably the Claimant because the letter is addressed to her and her evidence is 20 that she contacted her GP (paragraph 22 of her written statement). Contrast that with the occupational health report where we know what questions were asked because we can see that in the report and the referral (Page 141 of the bundle). We can see the chain of events and timing of the occupational health opinion. We can see that the Claimant was consulted about the occupational health report at a meeting on 23 May 2019. There, the Claimant was given an 25 opportunity to comment on the report. There’s no evidence that she disputed anything in the report. We can see that she was advised that it was possible to make a second referral to occupational health, but she didn’t take it up. On 11 July 2019, we can see that she was invited to a second long-term absence meeting to discuss similar matters and given a further opportunity to challenge the occupational health advice but the Claimant did not engage with that.

[30]So, in contrast to the report, for the GP letter, we are only seeing part of the story. There is uncertainty as to the background behind the instruction of the GP letter in circumstances where at least it seems in some respects the GP is being steered to a particular position. And I go back to my first reason of the influence of a GP and patient relationship and the quite legitimate desire to keep that strong and ongoing.” 22. The Tribunal did not accept the Respondent’s argument that the OH Report should be preferred over the Medical Report prepared by Dr Day. The Tribunal accepted the OH Report for what it was – a report detailing the OH Physician’s views at the time of assessment (25 March 2019). This included views on whether or not the Claimant had a disability under the EA 2010 (which is a mixed question of fact and law for the Tribunal to determine). 23. In so far as there was any conflict between the two reports the Tribunal preferred and accepted the Medical Report of Dr Day for the following reasons:a. The Claimant had consulted with Dr Day since the onset of her condition and throughout;

b. Dr Day had regular contact with the Claimant throughout the relevant period;

c. Dr Day’s Report was framed with the benefit of her knowledge and experience of the Claimant, her symptoms, her medication and treatment over the relevant period;

d. The OH Report was a snap shot of the Claimant’s symptoms and condition as at the date of the assessment (25 March 2019). Impairment 24. The Tribunal considered and accepted the Claimant’s evidence as to her impairment and also that of Dr Day. Dr Day’s medical opinion was that the Claimant suffered from anxiety and depression over the relevant period. Although the depression was not diagnosed until 15 February 2019. 25. The Tribunal did not accept the Respondent’s submissions (founding on Herry) that anxiety and depression in the circumstances were merely descriptors of the symptoms and a reaction to adverse consequences. 26. The Tribunal did not accept the Respondent’s submission that the Claimant was not suffering from a “condition” over the relevant period. It was submitted: Did this person have a condition at the relevant time that caused vulnerable symptoms? No they didn’t. She did experience those symptoms and that is because, according to her, taking her case at its highest, she was a victim of direct race discrimination, harassment and bullying at work, and according to her GP as soon as that stops, the symptoms stopped. No Tribunal could find that someone having anxiety and depression from racist discriminatory behaviour but recovers when that behaviour stops is a disabled person. And that is the case even if that person was likely or could well be placed in other racist, discriminatory or bullying situations in the future, or perceive that they were, where they suffer the same healthy negative impacts. Those feelings and the impact of it are quite normal in a situation where it is caused by what she believes to be racist and bullying. 27. The Tribunal find that the Claimant suffered a mental impairment of anxeity and depression over the relevant period. This finding was consistent with the medical evidence before the Tribunal and with the evidence of the Claimant. Long-term effect 28. The Respondent submitted that “whether the Tribunal prefers the occupational health report over the GP letter, the GP is not saying anything inconsistent with the occupational health report in terms of longterm effect or that she meets the definition of disability under the Act. The GP is completely silent on whether she does meet the definition under the Act and so the occupational health report can fill in that gap. 24. The GP is clear at least when the letter says: “I have no reason to anticipate a recurrence of her symptoms”. The general meaning of the word “anticipate” is “regarding something as probable”, “expected” and “predicted”. Therefore, the GP letter is essentially saying what the occupational health report said in that symptoms were unlikely to last 12 months or more. They are saying the same thing – that it is not a recurring condition. Yes, there is disagreement on the severity of the symptoms but whether they are long lasting, they are saying the same thing.” 29. The Tribunal (as above) considered and accepted the Claimant’s evidence as to the long-term effect of her impairment and also that of Dr Day. Dr Day’s medical opinion was that the Claimant suffered from anxiety and depression over the relevant period and that there was a likelihood her condition would recur “should she experience similar workplace stress and bullying in the future”. 30. The Claimant’s evidence was that her depression was likely to recur because the circumstances that gave rise to her absence had not been dealt with. This taken together with Dr Day’s opinion meant that the circumstances subsisted which meant there was a likelihood her condition would recur.

[31]Likely to recur is interpreted as “could well happen” (The Guidance on the Equality Act 2010 (published by the UK Government). It is not assessed on the balance of probabilities.

[32]The Tribunal accordingly concluded that the Claimant’s impairment was of long-term effect as it was likely to recur. Substantial Adverse Effect on normal day to day activities

[33]The Tribunal accepted the Claimant’s evidence as to the impact upon her ability to perform normal day to day activities and tasks as defined in the Guidance. Further, that she felt anxious, was unable to concentrate, found it difficult reading books; had difficulty sleeping, lacked energy and mobility and lost interest in everyday activities. This was also suported by Dr Day’s report “ I would agree that her ability to carry out normal day to day activities would have been adversely affected for a period of time. The above symptoms including lack of motivation and poor concentration would mean she could only carry out normal day to day activities with difficulty. I can also confirm that this effect was substantial.” The Tribunal accepted that the adverse effect was more than minor or trivial and was in fact substantial (following Goodwin v The Patent Office). The Tribunal also accepted Dr Day’s evidence in her report which clearly stated her view that “The substantial adverse effects started to apply on 14/11/2018 and lasted until 24/7/2019.”

[34]In the circumstances the Tribunal conclude that the Claimant had a qualifying disability as defined in section 6 of EA 2010 from the period 14 November 2018 to 24 July 2019.