Mr M Crosskey v Mr S Ash T/a AS Spotworks: 6001165/2023
EMPLOYMENT TRIBUNALS
Case No 6001165/2023
Between
Mr M CrosskeyClaimantMr S Ash T/a AS SpotworksRespondent
Before
Employment Judge J BaxIn person for claimantDate 19 June 2025
JUDGMENT
At all material times to the claim, between 1 June 2020 and 28 April 2023, the Claimant was an employee of the Respondent, within the meaning of s. 230 of the Employment Rights Act 1996.
REASONS
[1]By a claim form presented on 30 June 2023, the claimant claims general unfair dismissal, automatic unfair dismissal for having made protected disclosures and disability discrimination. He was employed by the respondent between 1 June 2020 – 28 April 2023, latterly as the business manager. He was dismissed by a letter dated 28 April 2023. It was in these terms written by Simon Ash: “As we both know you have been very unhappy working here for some time now and have almost left on many occasions. We have had a number of discussions. As such I am also fully aware of your low opinion of myself and also how I run the business to which I am not particularly concerned about really. However, workwise as you know I am fully concerned and will only go so far with situations and people. To this end I am certain this will come as no surprise and more than likely as a relief to you. Case Number: 6001165/2023 10.7 Judgment with reasons – rule 62 2 I know over the past six months or so you seem now to have lost any interest in work. I have seen and learned many things over that period and recently that leaves me to conclude that this time has come for us to part ways and terminate your employment. I write to you to inform you that we unfortunately will not be going forward any longer with your position with immediate effect. I was going to wait your return, but it would be just an unwelcome delay on both sides and an unnecessary return on Tuesday. I will get all your holiday and severance payment put through on payroll end of next week and also get out to you the relevant payroll certificates, P45 etc required. I do not feel the need to get into any further discussions over this, I am fully aware of the personal problems you have been suffering over the years of which I believe I have been very understanding and I have assisted as much as I am able. Regardless of the above I do wish you the very best going forward and hope that you can find some peace and happiness in your life. Possibly a few months getting your head together would be beneficial.”[2]The claimant points to the last paragraph of that and he submits that it references the depression he says he has been suffering from - on a recurrent basis - since childhood.[3]At the date of dismissal, the claimant was 29 years old. He had recent relationship issues with the mother of his two young children. They separated. There were issues about custody and childcare of the two young children.[4]The claimant adduces a considerable body of documentation concerning emotional and behavioural difficulties at school as a child. He tells me that it was not until the last two years of secondary school that he sorted things out. He went on to get a degree in music from Bath Spa University. He was seen, as a child, by Child Psychiatric Services. He never received a formal diagnosis over and above emotional and behavioural difficulties. Medication was considered but was never actually taken by the claimant as a child. The theme was of violent outbursts of temper and very low self esteem. A community paediatrician found he did not suffer from ADHD in January 2003.[5]He has never taken medication for anxiety and depression. He has not seen any NHS professionals including a GP for the last fifteen years. Accordingly, the claimant has no usual medical records from the last fifteen years with which to root his claim to be disabled within the meaning of the Equality Act 2010. The claimant has adduced numerous transcripts of difficult conversations he has had with family members, in particular his mother.[6]I am unable however to draw any conclusions as to disability from these. The claimant has been seen by a private counsellor from February 2022. Linda Coggan wrote a statement in November 2023 in these terms: “Marcus Crosskey contacted me in 2022 for private counselling. He has attended weekly sessions since then, apart from a few weeks over Christmas and my holiday period. In his initial appointment it was noted that he had separated from his partner in February 2022, was living with his grandmother and co-parenting his two small children. My impression of his state of mind at that time was he was very depressed and anxious. I have had access to assessments when he was eight years old by child and family therapy services as well as his primary school. These present a feeling of sadness and frustration which he found difficult to express appropriately. Case Number: 6001165/2023 10.7 Judgment with reasons – rule 62 3 His education continued to be chaotic until he found a goal in year eleven where he discovered a talent and love for music and found a purpose at college. When he commenced counselling, I began to understand how difficult his life had been. Although he was working, he was in a very distressed state due to the breakdown of his relationship with his partner and the difficulties of co-parenting their two children as well as his work. Despite his anxiety, low self esteem and sleep and eating problems, Marcus struck me as a totally committed and responsible parent. In my opinion Marcus is still struggling with depression anxiety and low self work but in his adult life has learnt to mitigate these debilitating mental health issues. However, earlier this year despite demonstrating a commitment to his job, he was shocked and totally confused when his employer dismissed him without warning. From my experiences as both a teacher and counsellor of many years, I would conclude that Marcus could well be on the autistic spectrum. I regard Marcus as an honourable man who has battled with emotional and mental health issues from an early age.”[7]The claimant does not contend that the Tribunal should conclude that he suffers from autism in this case, although he thinks he might suffer from autism; that is not the disability he had put forward. There is not a sufficiently cogent body of evidence to make that finding likely in any event. There is no report from a suitably qualified professional. To be fair, Linda Coggan does not purport to be such. The law on disability[8]Section 6 of the Equality Act 2010 provides that a person has a disability if(a) the person has a physical or mental impairment and(b) the impairment has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities.[9]We also have schedule 1 to the Act. Paragraph 2 provides as to long-term effects. The effect of an impairment is long-term if(a) it has lasted for at least twelve months(b) it is likely to last for at least twelves months(c) it is likely to last for the rest of the life of the person affected.[10]Paragraph 5 deals with the effect of medical treatment: an impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if(a) measures are being taken to treat or correct it(b) but for that it would be likely to have that effect.[11]We do not have any medical treatment in the form, for example, of medication to engage that provision.
Discussion and Conclusions
[12]On the balance of probability, I do find that the claimant suffers from depression which is a relevant mental impairment. That could be a recurrent depression going back to his childhood, although for the intervening fourteen years we have scant evidence. Leaving childhood aside, the nature of this depression was likely to last at least twelve months, of itself. The dismissal letter does acknowledge that the claimant has been suffering from problems for years. Case Number: 6001165/2023 10.7 Judgment with reasons – rule 62 4[13]The problem with the claimant’s case on the issue of disability is the state of evidence on substantial adverse effect on normal day-to-day activities. The claimant has not been able to point to any normal day-to-day activity in relation to which there has been a substantial adverse effect. It is not articulated in his witness statement.[14]He has been crossed examined by Mr Clarke about it today and I have asked questions on the Tribunal’s own initiative. He was unable to point to any dayto- day activity that he has struggled with. He tells me he has developed coping mechanisms such as breathing control, getting up very early at 4.00am to prepare himself for the working day, and leaving difficult situations. These are said to be coping mechanisms so as to be able to cope with normal day-to-day activities, and if he did not adopt those coping mechanisms, he would not be able to undertake normal day-to-day activities. The difficulty with this position is that he has been coping with normal day-to-day activities at all material times. None of those alleged coping mechanisms are medical treatments.[15]He started counselling around February 2022, when his family relationship began to fall apart. Even if that were relevant medical treatment, which I doubt, the claimant does not show that he would have suffered substantial adverse effects on ability to carry out normal day-to-day activities without it. The evidence is that whatever his state of mind throughout his adult life, indeed since the last two years of secondary school, he has been able to cope with normal day-to-day activities.[16]There is an intervening period of fourteen to fifteen years. Whilst he was depressed at the time of this dismissal, and during the course of certainly the latter part of his employment, the claimant does not show that this had a substantial and long-term adverse effect on his ability to carry out normal dayto- day activities. This case is an example of where an individual does suffer from depression, which I accept, but the depression falls short of a disability.[17]The he claims of disability discrimination are therefore dismissed. That is by no means the end of the case, of course, because there is a very substantial case of unfair dismissal, which may or may not involve protected disclosures.