Mr C W Pettie v Amazon UK Services Ltd: 4114441/2019
JUDGMENT
The Judgment of the Preliminary Hearing is:(1) The claimant was not a disabled person at the time relevant to these proceedings namely the period 15th May-29th August 2019;(2) The claimant’s application to lodge the document entitled “Application to Amend Claimant’s Originating Application by way of Further and Better Particulars of his originating complaints to the Tribunal” is refused. ETZ4(WR)REASONS
[1]The claimant submitted a claim to the Tribunal in which he claimed that he had been unfairly dismissed by the respondents and that he had been unlawfully discriminated against on grounds of disability. The respondent submitted a response in which they denied the claims. They did not accept that the claimant was disabled. On 21st May 2020 the respondent applied for an Order for Further and Better Particulars which was granted. A Closed Preliminary Hearing took place by telephone on 14th October 2020 for case management purposes and subsequently, on 22nd October 2020, the claimant sent a document which was headed “Application to Amend Claimant’s Originating Application by way of Further and Better Particulars of his originating complaints to the Tribunal”. The respondent objected to this document being taken as Further and Better Particulars of the claim. A Preliminary Hearing was then fixed in order to determine two issues namely whether the said document should be accepted as an amendment/Further and Better Particulars and secondly whether or not the claimant was disabled in terms of the Equality Act during the relevant period and if so precisely when the claimant could be taken to be so disabled.[2]At the Hearing the claimant gave evidence on his own behalf. There was some initial confusion since the Order made at the Preliminary Hearing had been that the claimant would give his evidence in chief by means of a witness statement. No witness statement was presented to the Tribunal or to the respondents prior to the commencement of the Hearing. At around 5 pm on the Thursday prior to the Hearing (with Friday and Monday being public holidays) the claimant’s solicitors had forwarded to the respondent a document entitled “Impact Statement”. This was not a witness statement but was a document containing a number of short paragraphs relating to the way the claimant’s alleged impairment was said to affect his ability to carry out day to day activities. It did not refer to any of the documents in the Joint Bundle and did not in any way resemble what is usually meant by a witness statement.[3]At the commencement of the Hearing the claimant’s Counsel and the Employment Judge had not appreciated that an Order had been made for evidence in chief to be given by means of a witness statement and the claimant’s representative commenced taking the claimant’s evidence in chief by oral examination in the usual Scottish manner. Unfortunately there were a number of initial difficulties due to the poor internet connection and the examination in chief had to be stopped and restarted on several occasions. The claimant’s representative was around 25 minutes properly into examination in chief when the respondent’s representative objected to a question on the basis that this was not something that was stated in the Impact Statement. He drew the attention of the Employment Judge and the respondent’s representative to the Order previously made by the Tribunal to the effect that evidence in chief would be given by means of a witness statement.[4]The respondent’s representative indicated that he had understood the Impact Statement was the witness statement which the claimant had chosen to lodge. The claimant’s representative confirmed that he had been unaware of the requirement for evidence to be given by means of a witness statement. Those instructing him had not mentioned this and it was clear to him that the document lodged was not in fact a witness statement.[5]I invited representations from the parties before I decided how to proceed. I considered that I required to approach the issue in terms of the overriding objective. It was clear to me that the Impact Statement lodged (which was only received by the Tribunal on the morning of the Hearing) was not in any sense a full witness statement. It was clear to me that it was not intended to be a witness statement but was simply a Disability Impact Statement. It was the type of document which in the normal course I would expect a claimant’s agent to refer to in an oral examination in chief which is what had been going on up to that point. The questions being asked by the claimant’s representative were open questions and entirely proper in that context. It was also clear to me that the claimant’s representative wished to elicit evidence which was relevant to the claimant’s case but had not been referred to in the Impact Statement. On the other hand the position of the respondent’s representative was that he had prepared for the Hearing on the basis that the claimant’s evidence would be restricted to what was in the Impact Statement and there would be unfairness to the respondent if the claimant was allowed to go beyond this.[6]I decided that in the circumstances the fair way to proceed would be to allow the claimant’s representative to continue with the claimant’s oral examination in chief as to do otherwise would deny the claimant’s representative the opportunity of eliciting evidence which was clearly relevant to the issue before the Tribunal. In order to avoid unfairness to the respondent I indicated that I would adjourn immediately after the claimant’s evidence in chief so as to allow the respondent’s representative to consider matters and, if appropriate, take instructions overnight with a view to commencing the claimant’s cross examination the following morning. This is what happened. The claimant then proceeded to complete his evidence. It should be noted that whilst the claimant gave evidence using a video link on the first day of the Hearing there were a number of delays in the line which made this process fairly torturous. The following day all of the parties agreed that the claimant could give his evidence using an audio link only. This resulted in a much better quality of connection albeit that I could not see the claimant’s face while he was giving evidence. The parties lodged a substantial bundle of productions. On the basis of the claimant’s evidence and the productions I found the following essential matters relevant to the issues before me to be proved or agreed. Findings in Fact[7]It was common ground between the parties that the claimant’s claim is that he was discriminated against on grounds of disability between 15th May 2019 and 29th August 2019. Accordingly the Tribunal required to determine whether or not the claimant was disabled during this period.[8]The claimant was born on 16th December 1966. Throughout his life there have been periods when his life felt good and other periods where he experienced extreme low mood and felt that it was spiralling out of control. Generally this depends on the situation and life events the claimant is dealing with at the time. The claimant’s medical records were lodged (pages 37- 134). These show that that the claimant consulted his GP regarding the way he was feeling on various occasions over a lengthy period. There is an entry for 1989 which refers to depression which was said to be job related. There was an entry for 23rd November 1993 simply stating “anxiety states”. The claimant is again recorded as having an anxiety state in 1998/1999. There is an entry for 15th November 1999 which simply states “depressed”. There is then an entry for 1st November 2001 which states “C/O – feeling depressed”. The claimant was prescribed sertraline (an antidepressant) in March 2001.[9]On 27th May 2002 the claimant was diagnosed as suffering from endogenous depression. The entry for 27th May 2002 states “endogenous depression – recurrent flare up symptoms stress with depression finds work stressful at present but not keen for line. It is noted that the claimant was recommenced on sertraline. At the time the claimant was having difficulties at his work. At that time he worked for a bank (Intelligent Finance). Eventually the claimant was absent from this work for a lengthy period of time and was dismissed from his employment. He subsequently raised Tribunal proceedings. During this period the claimant consulted his GP. His notes variously state “depression”, “lethargy”, “depression”. In September 2003 it is recorded that the claimant complained to his GP that he suffered a panic attack on trying to go back to work. The claimant was prescribed various antidepressants from 1998 onwards at various times. He was prescribed this medication off and on until 2012.[10]The claimant felt that the antidepressants which he was on caused him to be tired. In 2005 his records referred to him being tired all the time and having been late for work leading to disciplinary action. Again in 2005 it is noted that his condition worsened. The note states “his car had been clamped and his boss had been at him too”.[11]The claimant was referred to Cognitive behavioural therapy in 2005 and 2007. The claimant found this fairly helpful albeit the records show that he did not attend the full course of treatment in 2007. In or about 2012 the claimant attended CBT and found this most helpful. He advised his GP that he wished to try doing without antidepressants and use the techniques which he had learnt at the CBT course instead.[12]The CBT courses which the claimant undertook were courses in Cognitive Behavioural Therapy. Generally speaking the claimant was taught mindfulness techniques and relaxation techniques. The aim of the course was that when the claimant encountered situations which might cause him stress or anxiety leading to depression then he would use his relaxation techniques to avoid the spiral setting in whereby he would become anxious and then depressed which would cause him to lose sleep and be more tired and therefore more anxious and more depressed.[13]The claimant’s decision in 2012 led to a marked change in the claimant’s health. Whereas his medical records for the period from 2002 to 2012 occupy around 3¼ pages his interactions with his GP since from 2012 until May 2019 all fit comfortably on one page. The claimant is noted at 25th June 2012 as having been reviewed regarding his anxiety and depression. The note states “Essentially ISQ (in status quo i.e. unchanged) problems with awaiting Employment Tribunal stress pt seeking unfair dismissal mild agitation otherwise affect (np:i ct flexitene advise contact CAB re employment rights”. It is noted that the claimant was to be reviewed after two months but this did not happen. The next entries do not relate to stress or depression. It is noted on 10th June 2003 that when his GP had a chat with him regarding something else the claimant was stated to be “feeling well”. The next entry is in May 2016 where it is noted “anxiety states relationship of 6 months broke up last week and struggling to cope was fine before girlfriend ended things can’t eat feels anxious and shaky lost a stone in weight from not eating unable to go to work trying to keep busy but then just lies in bed willing her to call. Feels need something to calm him down previous depression but been fine for years discussed options tried diazepam short time one off script only for acute anxiety CBT sites patient UK Anxiety self help mindfulness ?? issued line for another week then review as needed”.[14]The reference in this note to CBT sites and mindfulness apps are references to online resources which the claimant was referred to by his GP. The claimant was able to go online and look at these resources. Generally they provided a continuation and reinforcement of the CBT courses which he had previously undergone. The next entry was some 6 months later on 22nd November 2016 where it is stated “Seen by doctor works night shifts at Amazon warehouse. Feels burnt out and stressed at work. Trying to get moved to Bathgate (otherwise is commuting 20 miles each way to Dunfermline) but says no-one at work listening has compulsory overtime over Christmas cannot face the hours as already feels stressed no DSH/SL finding it difficult to concentrate and some anxiety sx lives alone no alcohol OE well ?? speech normal UC ?? – stress at work no current features of depression but HX of this p has self certificate already 7 7 so agree further line for one week try exercises mindfulness etc speak to HR during this time agree avoid ?? use given dependence happy with this …”. At that point the claimant was working permanent night shift at Amazon. In order to get to the Amazon warehouse from his home he required to drive from his home in Livingston to the Amazon warehouse near Dunfermline, a journey of around 22 miles each way. Once again there were no follow ups to this appointment until August 2018 where it is noted “telephone encounter been off work for 7 days with anxiety looking to be signed off advised really needs to be seen appointment given tomorrow”. The claimant was seen the following day (30th August) where it states: “Seen in GP’s surgery anxiety/getting worked up about contact lenses/glasses short fuse at work and stormed off last week taken 7 days self certification given one more week now to reassess his life may decrease hours as works night shift constant for 4 years at Amazon. The claimant again saw his doctor on 5th September 2018 where it is noted “seen by doctor stressed at work still working night shift at Amazon boss unsupportive considering a grievance as HR doesn’t listen finds himself getting worked up and agitated at work no features of depression enjoys playing snooker wonders if any tablets to help control his symptoms suggests no conservative treatment mindfulness plus relaxation techniques has been off 2 weeks already agree ?? till the end of the week plans to go back to work next but strongly suggest he speaks to Occupational Health”.[15]The claimant’s case is that he was disabled at the point where an incident occurred on or about 16 May which led to the claimant’s eventual dismissal. At that point the claimant is not recorded as having been to see his GP since the consultation on 5 September of the previous year.[16]The claimant did not consult his GP again until 4th July 2019. This was a few days before his disciplinary meeting on 8th July. The note of that meeting states “consultation 1-1 with Chris who is suffering from stress. He has been suspended from work and has a meeting on Monday given advice on stress management referral sent to Beating the Blues given access to the Feeling Good app”. The reference to “Beating the Blues” is a reference to a resource which provides CBT.[17]At that meeting with his GP in July the claimant had expected that he would be prescribed antidepressants and he had asked his GP for them but instead his GP had made the referral. The claimant was referred to a nurse who confirmed that the claimant should go on a further CBT course. The CBT course was similar to the ones carried out by the claimant before. It was about coping without medication and learning relaxation techniques. The claimant has tapes which he listens to so as to encourage positive thinking. The claimant’s referral letter to NHS Lothian in August 2020 was lodged (page 52). This refers to the claimant as suffering from “mild or moderate depression or anxiety”. It was noted that the claimant was prescribed mirtazapine an antidepressant starting 31st August 2020.[18]Following the claimant’s dismissal the claimant retreated into the kind of spiral which he had previously experienced prior to 2012. He did not consult his GP about this until February 2020 where it was noted that the claimant was not sleeping and suffered from anxiety and felt that things were getting worse. The claimant had a telephone encounter with his GP in March 2020. By this time the Covid-19 pandemic had begun and face to face encounters were being limited. The note states “telephone encounter struggling with anxiety and mood for months started after fired from Amazon job had outbursts at Manager has a Tribunal coming up has since lost 2 temporary jobs worried re finances sleep poor told by Jobcentre to get med 3 anxious re CV19 and elderly father minimal support sometimes wishes wouldn’t wake up but no active suicidal ideation no alcohol misuse less interested in pool and stopped going to weekly meet up long support of chat suggest self refer to WBH try some propranolol …”.[19]The claimant’s next encounter with his GP was in August 2020 which was by telephone. By this time the claimant’s sister had become concerned about him and had insisted the claimant go to stay with her. The claimant’s sister is recorded as “reports her brother unwell fighting with an ex employer Amazon who has been bullying him lost job one year ago July 19 Tribunal since …. not answering phone calls locking himself in house he has gone into his house where he is presently lives alone feels worthless feels there’s no point in anything anymore feels he has given up no plans to do anything letters piled up no housework he feels he has lost some weight lost last job one week ago walked out tries to eat regularly appetite poor mood pervasively low energy levels very low motivation very poor often does not sleep – very poor wakes several times with anxiety denies drugs/alcohol discussed at length crisis PLAMN feels confident will call for reassessment here 111 present to ED should things worsen sister will keep close eye on him these next few weeks focus on eating regularly exercise keen to trial some eCBT agrees to trial medication has tried most in past. last fluexitene suggests mirtaz for useful night sedation …”.[20]The claimant remains in poor mental health. He characterises his present symptoms as being more related to anxiety rather than depression. He continues to try to use the techniques he has learnt at CBT sessions over the years. When the claimant’s mental state is low he doesn’t like driving very far. He is anxious if he sees someone behind him in the mirror and feels they are too close. The claimant in the past has played in a pool league. He has ceased doing this recently but it is unclear whether or not he was still playing pool/snooker prior to his dismissal from Amazon. The claimant’s main social contact is with his father and sister. Currently the claimant tries to avoid going out as much as possible. He will only shop for essentials. He feels anxious and this affects his sleeping pattern. Findings in Fact in relation to amendment/Further and Better Particulars[21]On 21st May 2020 the respondent applied for an Order for Further and Better Particulars having already sought the same information from the claimant directly. Although the application was for Further and Better Particulars the actual form of the Order sent out by the Tribunal was for a Documents Order (page 178). The second page of the Order made it clear that what was required was Further Particulars. The claimant was to comply by 9th July 2020 but did not do so. On 14th July the respondent applied for strike out or alternatively an Unless Order. The claimant’s representative responded on 15th July 2020 and explained that the claimant was ill and unable to engage with the case. At this point the claimant was suffering from anxiety and one of the symptoms of this was a failure to open mail and a reluctance to answer telephone calls. On 21st July the Tribunal ordered the claimant to provide medical evidence in relation to his current state of health and ability to give instructions. This was not complied with, the claimant’s representative explaining on 1st September 2020 that the claimant had not opened the medical mandate due to his health. The deadline was then extended to 6th October 2020. The medical records were provided to the claimant’s solicitors on or about 25th September 2020 but no medical information was provided for the deadline of 6th October. On 8th October the claimant’s representative stated “The medical records have just been recovered for Mr Pettie and we are just reviewing these and have to obtain authorisation to release any relevant records (page 247).[22]As noted above a telephone Preliminary Hearing took place on 14th October 2020 following which this Hearing was fixed. On 22nd October 2020 the claimant forwarded to the respondents the document previously referred to which extends to around 18 pages and was said to satisfy the undertaking given at the Preliminary Hearing to provide Further and Better Particulars when making an application to amend the claim. On 3rd November 2020 the respondents objected to the amendment application.[23]The Tribunal ordered the claimant to provide the unredacted medical records on 11th February 2021. This followed the claimant’s representative’s having forwarded redacted medical records to the respondents prior to this and the respondents objecting to this. The Order of 11th February 2021 was not complied with. On 10th March 2021 the Tribunal made an Unless Order requiring the provision of the unredacted medical records and on 12th March the claimant was granted an extension to 29th March 2021 for providing the documents. They were provided on 29th March. Matters arising from the evidence[24]The claimant’s evidence provided the Tribunal with considerable difficulty. Whether or not the claimant was disabled at the relevant time and (although I appreciate that I am not in any way medically qualified) it was clear to me that the claimant was not in good mental health at the time he was giving evidence. He appeared to have difficulty in comprehending questions even from his own agent. He was extremely unwilling to answer any questions from either of the two legal representatives with any degree of precision. He was an extremely poor historian and it was difficult to get any clear picture from his oral answers. The claimant adopted the Disability Impact Statement which he had provided by telephone to his solicitors a week or so prior to the Hearing but he also said that he was having extreme difficulty with such phone calls. He was unwilling to enter into any dialogue in order to explain apparent discrepancies between what he was saying and what the medical records showed. He repeatedly said that he had not seen the medical records prior to the preparation for the Hearing as if this somehow meant that the records could not be relied upon. The claimant’s position put at its highest was that he had suffered anxiety and depression intermittently for the last 20 years. At the moment he was suffering mainly from anxiety and in the past it had been depression. Situations of uncertainty trigger high anxiety levels and he finds it difficult to cope with stressful situations. He will begin to get ill and then go into a spiral not eating right and not sleeping right. He describes himself as keeping himself to himself and being unable to cope. He summarises it as being ‘at times fine then not fine, especially in certain situations’. He complained of social isolation but it was clear from his evidence that he was talking about his present situation rather than in the past. His initial position was that he had never had any social life but eventually after being pointed to various matters in his medical records he accepted that he had taken part in a weekly pool league for a local pub. He gave various answers as to when he had stopped doing this. There was a note from March 2020 in his medical record saying that he had only just stopped (page 35). I decided that I was not in a position to make any findings in fact as to what the actual position was regarding this.[25]With regard to driving the claimant indicated that he felt uncomfortable driving but accepted that he had driven 22 miles each way to his work with Amazon each day he was working up until the point he was dismissed. He also at that point lived alone and was able to shop for himself albeit his evidence was that he would only go out shopping for essentials.[26]The claimant’s evidence was quite clear to the effect that his mental health difficulties are caused by life situations which he finds stressful. He agreed with the suggestion by the respondent’s agent at the commencement of cross examination that there were periods when his life was good and other periods when his life was spiralling downhill. He then volunteered that where he was in this cycle depended on the situation he was dealing with at the time.[27]At the end of the day given the difficulties in the claimant’s evidence I have restricted my findings in fact to those which are based essentially on the medical records. I have accepted the claimant’s evidence where it is backed up by these records but I was not prepared to accept the claimant’s evidence, limited as it was, which went beyond the medical evidence or was contradicted by it. With regard to the findings in fact in relation to the amendment issue these are based almost entirely on the respondent’s written submission which was backed up by the entries I can see in the Tribunal file and the correspondence and was not disputed in any way by the claimant’s agent.ISSUES
[28]The two issues which require to be determined were whether or not the claimant was disabled and whether to allow the claimant’s document entitled “Application to Amend….” to be included in his written pleadings. With regard to disability both parties were agreed that the relevant period was as stated above. Both parties made full submissions on both points. Both submissions were excellent summaries of the law on the subject and essentially both agents were in agreement as to the relevant law which I required to apply although both highlighted in their submission those matters which they felt should incline me to come down in their favour. Without in any way wishing to detract from the quality of their submissions which was very high I will not attempt to summarise them but will refer to them where appropriate in the discussion below. Disability[29]Section 6 of the Equality Act 2010 states: “(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 …. (4) This Act (except Part 12 in section 190) applies in relation to a person who has had a disability as it applies in relation to a person who has the disability accordingly (except in that Part in that section) – (a) a reference whenever expressed to a person who has a disability includes a reference to a person who has had the disability, and (b) a reference (however expressed) to a person who does not have a disability includes a reference to a person who has not had the disability.”[30]Schedule 1 of the Equality Act paragraph 2 states: “(1) The effect of an impairment is long term if –(a) it has lasted for at least 12 months(b) it is likely to last for at least 12 months, or(c) it is likely to last for the rest of the life of the person affected.”[31]The Secretary of State has published guidance in relation to the definition of disability. The current version is at SI 2010/2128.[32]Although I have not attempted to summarise the claimant’s representatives submission in full I do require to set out in general terms what the claimant’s general position was as to why he considered himself disabled. It was the claimant’s position that he is disabled on account of suffering from anxiety and depression. The claimant’s position was that in latter years he suffered more from anxiety than from depression. He referred to the diagnosis which had taken place in 2002 where he had been diagnosed as suffering from endogenous depression. It was also clear from the claimant’s medical records that he had received treatment on various occasions in the past for anxiety and depression. It was the claimant’s position that the medical records clearly showed that he had an impairment and he relied on the adverse effects which were listed in his Impact Statement and supplemented orally. He stated that his condition restricted his ability to drive since he avoided driving unless he was going to work and back and he would only shop for essentials. He did not feel comfortable around people when he was going through a period of anxiety. He would ignore mail and stick his head in the sand so he would not be able to open mail and had difficulty with phone calls. His illness had caused him to be unable to work for 10 months in 2005. He had two weeks off work in 2018 and difficulties with sleeping. He would wake up early from night shift and he was not eating well.[33]On the issue of long term the claimant’s primary position was that the adverse effects had lasted more than 12 months by the relevant date which was agreed to be 16th May 2019 but his secondary position was that paragraph C3 of the guidance applied and that even if an impairment had ceased to have a substantial adverse effect it ought to be treated as continuing if it was likely to recur. The case of SCA Packaging Limited v Boyle [2009] UK HL 37 makes it clear that the phrase “likely to occur” is to be interpreted as “could well happen” rather than “more likely than not”.[34]It is clear that the evidential onus in establishing all three parts of the test of disability are on the claimant. The claimant must show impairment, adverse effects and long term.[35]The issue of impairment can be one which is difficult to define in cases such as this which involve mental impairment. In the case of J v DLA Piper the EAT considered whether there was still value in looking at the issue of impairment and adverse effects separately. The EAT considered that the approach set out in Goodwin v The Patent Office [1999] ICR 302 was still good law however it was suggested in para 40 that: “The Tribunal should not proceed by consecutive stages. Specifically in cases where there may be a dispute about the existence of an impairment it will make sense for the reasons given in paragraph 38 above to start by making findings about whether the claimant’s ability to carry out normal day to day activities is adversely affected (on a long term basis) and to consider the question of impairment in the light of these findings. These observations are not intended to, and we do not believe that they do, conflict with the terms of the guidance of the authorities referred to above. In particular we do not regard the Ripon College and McNicoll cases as having been undermined by the repeal of paragraph 1(1) of Schedule 1 and they remain authorative save insofar as they specifically refer to the repealed provision.” This case is extremely valuable in that it deals with a case where the alleged disability was depression. On the issue of depression the EAT goes on to state: “The facts of the present case make it necessary to make two general points about depression as an impairment. We do so with some caution since the medical evidence before the Tribunal did not contain any general discussion of depression. We have to rely primarily on the inferences that can be drawn from such medical evidence as there is together with the guidance on the case law and the general knowledge required from our own experience of depressive illness in the field of employment law and practice. However we have considered it legitimate to consider also the report of the Joint Committee on the Disability Discrimination Bill (i.e. what became the 2005 Act. ….. The first point concerns the legitimacy and principle of the kind of distinction made by the Tribunal as summarised at paragraph 33(3) above between two states of affairs which can produce broadly similar symptoms: those symptoms can be described in various ways but will be sufficiently understood if he refers to them as symptoms of low mood and anxiety. The first state of affairs is a mental illness or if you prefer a mental condition which is conveniently referred to as clinical depression and is 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) or if the jargon may be forgiven adverse life events. We dare to say that the value or validity of that distinction could be questioned at the level of deep theory and even if it is accepted in principle the borderline between the two states of affairs is found often to be very blurred in practice but we are equally clear that it reflects a distinction which is routinely made by clinicians … and which should in principle be recognised for the purposes of the Act. ….. The second general point that we need to make about depression as a disability concerns the question of recurrence. The Tribunal said in the final sentence at paragraph 4.3 of the reasons that depression is long term because it is likely to recur. We are not clear on what evidence that statement was based and it needs to be examined with some care. We proceed by considering two extreme examples. We take first the case of a woman who suffers a depressive illness in her early 20’s. The illness lasts for over a year and has a serious impact on her ability to carry out normal day to day activities. But she makes a complete recovery and is thereafter symptom free for 30 years at which point she suffers a second depressive illness. It would appear to be the case that statistically the fact of the earlier illness means that she was more likely than a person without such a history to suffer a further episode of depression. Nevertheless it does not seem to us that for that reason alone she can be said during the intervening 30 years to be suffering from a mental impairment (presumably to be characterised as a vulnerability to depression or something of that kind) rather the model is of someone who has suffered two distinct illnesses or impairments at different points in her life. Our second example is of a woman who over say a five year period suffers several short episodes of depression which have a substantial adverse impact on her ability to carry out normal day to day activities but who between these episodes is symptom free and does not require treatment. In such a case it may be appropriate, though the question is one in which medical evidence would be required, to regard her as suffering from a mental impairment throughout the period in question i.e. even between episodes. The model would be not of a number of discrete illnesses but of a single condition producing recurrent symptomatic episodes. In the former case the issue of whether the second illness amounted to a disability would fall to be answered simply by reference to the degree and duration of the adverse effects of that illness but in the latter the woman could, if the medical evidence supported the diagnosis of a condition producing recurrent symptomatic episodes, properly claim to be disabled throughout the period even if each individual episode were too short for its adverse effects (including deduced effects) to be regarded as long term she could invoke paragraph 2(2) of Schedule 1 provided she could show that the effects were “likely to recur”. Both parties were agreed that with regard to the latter issue the circumstances in this case fell somewhere between the two extremes identified in J v DLA Piper.[36]Having set out my understanding of the basis on which the claimant asserts that he is disabled and my understanding of the correct approach in terms of the law I would now wish to set out my view on the outcome in the present case. The first point I would wish to make is that the evidence regarding adverse effects in this case is extremely slight. It appeared to me that the Impact Statement produced by the claimant was of absolutely no use since it is entirely inspecific as to date. From what I could glean from the claimant’s oral evidence he was in fact talking about his present situation rather than his situation at any point prior to 29th August 2019. Medical evidence in relation to the claimant’s current position would support the view that he became ill after his dismissal from Amazon and that the symptoms he suffers from all post date 29th August 2019. Indeed it would appear that the symptoms which he mentions did not fully manifest themselves until around February/March 2020. In the J v DLA Piper case it is stated that medical evidence can be important in cases such as this where there are often fine distinctions to be made. In this case I do not have any medical report whatsoever to assist me. The medical records such as they are simply record encounters with the various clinicians and the various referrals which have been made. They are clinical notes. I bear in mind that the onus to provide medical information is on the claimant. In his Impact Statement the claimant refers to his diagnosis in 2002. He also refers to the issue having started when he broke up with a partner in 1998. He refers to bad periods in 2002 and 2005. He was off for 10 months in 2005 when he lost his job. He refers to work being the one thing which kept him going and that during a lengthy period whilst working with Amazon he made it the goal to pay off his house and refers to matters at the time of dismissal as being “I was kind of getting better”.[37]What I take from the evidence is that in the claimant’s mind at least he is susceptible to having an adverse response to life circumstances and is vulnerable to depression. His view is that his state of mind will, as he puts it, depend on what he is having to deal with at the time. Matters such as break up with a partner and difficulties at work may cause him to spiral and seek medical help for symptoms of low mood and not sleeping or eating properly. I have to say that I find myself in some difficulty in going much beyond this since I fear that in order to do so I would require to apply medical training which I do not have. I would have expected some medical evidence to show that there was a medical reason for the claimant’s avowed pattern of becoming extremely upset more than the ordinary at adverse life events.[38]All that I can really take from the evidence is that in 2002 the claimant was stated to be suffering from endogenous depression. His medical notes in the past use the words depression and depression and anxiety although most recently these words are not used. Most noticeably they were not used at all by his GP when he consulted his GP in July 2019. The referral letter in August 2020 states the claimant was suffering mild or moderate depression.[39]I am prepared to accept that the medical evidence showed that on those occasions the claimant was medically diagnosed as suffering from an impairment namely either depression, anxiety or mild to moderate depression based on what the doctors have said. It is clear to me from the evidence that the claimant has suffered from various episodes during his life where he has suffered from low mood with consequent social anxiety.[40]On the issue of substantial adverse effect I note that in the past the claimant has had substantial periods of work but apart from this the claimant gave no evidence whatsoever about what he had been like prior to 2012 other than that the antidepressants made him feel tired and lethargic. I am not prepared to make a finding that the claimant was disabled in the period up to 2012 because the evidence is simply not there. From 2012 onwards the claimant was basically well apart from an episode in 2016 where the claimant attended his doctor following the break-up of a relationship. The claimant was given a one off prescription for propanalol which I understand was to help him with sleeping. The claimant also had a period where he was signed off work for two weeks in 2018 following a dispute with his supervisor at work. I also accept that the claimant has suffered severe symptoms in 2020 which is outwith the period I am dealing with. I do not consider that I have any evidence of substantial adverse effects on the claimant’s ability to carry out day to day activities in the period 2012 up to the end of the relevant period in August 2019. It therefore follows that as of the period May-August 2019 I do not find that these adverse effects had lasted more than 12 months.[41]The final question therefore is whether the claimant falls into the category mentioned by the EAT in the J v DLA Piper case of the second example they give of a woman who over a five year period suffers several short episodes of depression which have a substantial adverse effect on her ability to carry out normal day to day activities but who between these periods is symptom free. She may be disabled even during the period when she is symptom free if there is evidence that a recurrence is likely in the sense of “may well happen”.[42]The difficulty which I have is that once again there is a complete lack of medical evidence suggesting that recurrence is likely or that the claimant is more likely to have a series of recurring depressive episodes for the rest of his life. There is a solitary reference in the medical notes from 2002 of recurring symptoms but that is all. Essentially I am being asked to extrapolate on the basis that the claimant has had various depressive episodes which have recurred in the past. As noted above I consider that I am being asked to make a deductive leap which is more in the province of the diagnostician rather than the jurist. For the above reasons I do not consider that I can make a finding that the claimant was disabled during the relevant period in this case. The claimant’s claims of disability discrimination must therefore be dismissed.[43]Having dismissed the disability discrimination claims the issue relating to the Further and Better Particulars is to some extent moot. I should say however that I was entirely persuaded by the arguments of the respondent to the effect that the claimant should not be permitted to amend his pleadings so as to include these. It appeared to me that this was a matter which required to be determined in light of the overriding objective. I was referred to the balance of prejudice in this case. The main feature is that there would be extremely little prejudice to the claimant if the Further and Better Particulars were not allowed. As noted by the claimant’s representative the first claim is of unfair dismissal and specifically he considers that the investigation was flawed, witnesses were not interviewed and that the respondents failed to take into account his disability and ought to have made allowances for this. If the Further and Better Particulars are not permitted then the claimant will still be allowed to lead evidence about these matters at the Tribunal. Even had the disability discrimination claim still been live then the claimant would still have been able to put forward this claim at the Hearing. On the other hand there is a minor disadvantage to the respondents if the Further and Better Particulars are allowed in that the respondent will have to spend time and effort responding to an 18 page document and considering whether any genuinely new matters are raised or not. At the end of the day it is a relatively minor inconvenience in the overall scheme of things but given that I can see no advantage whatsoever to the claimant in having these Further and Better Particulars allowed then I consider the balance of prejudice favours not allowing them. This is particularly the case given that far from assisting the Tribunal to deal with the case justly the Further and Better Particulars simply obfuscate and confuse matters. The respondent’s representative referred to the recent case of C v D and the suggestion that, where possible, claimants should avoid a narrative style of pleadings. The document which has been lodged by the claimant’s representatives in this case is a paramount example of the type of pleadings which, in my view, the EAT were suggesting was inappropriate. They are discursive and confusing. I would also agree with the respondent’s representative that they do not actually address the various matters which were supposed to have been answered in the order made by the Tribunal in May 2020.[44]At the end of the submission the respondent’s agent suggested that I simply reissue the Questions Order and ask that the claimant now answer the questions asked in a succinct and appropriate way. Given that the disability discrimination claim will not be proceeding further I do not consider that it is appropriate for me to do this. If the respondent’s representative still thinks there are issues relating to the unfair dismissal claim which require clarification they may apply to the Tribunal for an additional Information Order in the usual way, having of course first asked the claimant to provide this information on a voluntary basis.