Ms S Latouche v Springboard Helpers Ltd T/a Caremark Doncaster: 6002164/2023
EMPLOYMENT TRIBUNALS
Case No 6002164/2023
Between
Ms S LatoucheClaimantSpringboard Helpers Ltd T/a Caremark DoncasterRespondent
Before
Employment Judge MaidmentIn person for claimantDate 21 May 2024
JUDGMENT
The claimant was not, as at the material time of her dismissal, a disabled person. The claimant’s sole remaining complaint of disability discrimination must be and is hereby struck out.
REASONS
Issues
[1]The issue for the tribunal’s determination is whether the claimant was a disabled person by reason of anxiety as at 16 June 2023, when her employment was terminated.
Evidence
[2]The claimant gave evidence to the tribunal with reference to an impact statement she had prepared. The tribunal had before it a bundle of documents which included all of the medical evidence the claimant had disclosed and all other matters she wished to rely on as evidence supporting her status as a disabled person. The tribunal heard submissions then from both sides.[3]Having considered all relevant evidence, the tribunal makes the following factual findings.
Facts
[4]The claimant maintains that she was at the point of her dismissal on 16 June 2023 a disabled person by reason of the impairment of anxiety. She relies on there having been 2 particular episodes where she says that she had the Case No: 6002164/2023 10.8 Reasons – rule 62(3) March 2017 most severe anxiety symptoms from 16 May – late August/September 2022 and then from around December 2022 until July 2023.[5]On 16 May 2022 the claimant’s GP certified her as unfit to work in a previous employment due to low mood/work-related stress, again from 13 June 2022 due to work-related stress, from 11 July 2022 for the same reason and from 20 July 2022 due to anxiety/stress at work.[6]Other medical evidence suggests a change in the claimant’s health on 16 May 2022 and her attendance at therapy group sessions after 3 August 2022. There was an occupational health consultation on 9 August 2022 which referred to the psychological impact of an experience in that previous employment on her health and well-being, saying that the claimant was not at that point fit to work. The claimant described the experience at work as traumatising and her feeling that she was experiencing symptoms of PTSD.[7]The claimant had a GP appointment on 26 August 2022 where the problem was stated in her medical records to be work stress and it was recorded that she had started propranolol which “has helped”. This medication was prescribed to help reduce the physical signs of anxiety. There was also a reference to her contacting mental health and occupational health services.[8]The claimant only started working for the respondent from 5 September 2022.[9]On 6 September 2022, the major issue was described in her GP medical records as an ongoing episode of “feeling anxious”. However, she had just, as referred to, managed to gain and commence her new role with the respondent.[10]The propranolol was to be taken by the claimant as needed and she had an open prescription. There is no evidence, however, that she continued to receive supplies of that medication and the evidence is of a further prescription only on 27 June 2023 for the same medication, after her employment with the respondent had ended.[11]The claimant saw her GP on 20 July 2023 when anxiety and work-related stress were identified as resulting from something which has been redacted by the claimant from her medical records. A diagnosis was given of anxiety/stress at work. A fit note was issued, but the claimant commenced new full-time employment 9 days later. The claimant applied for another new role and left to join a further new employer on 23 October 2023. The claimant saw her doctor again on 30 January 2024 reporting feeling anxious. The plan was to reissue propranolol which had helped before. At a consultation on 20 February 2024 the claimant described a long history of issues with work and going through a court case at the moment (a reference to these proceedings) being very stressful. There was a discussion regarding the claimant possibly trying antidepressant medication.[12]Whilst the claimant maintains that the occupational health records she supplied do not constitute a log of all of her appointments, there is no evidence before the tribunal of any appointments during her employment with the respondent. The tribunal has referred above to evidence of an Case No: 6002164/2023 10.8 Reasons – rule 62(3) March 2017 occupational health consultation on 9 August 2022. The next one for which there was any evidence was on 13 March 2024 confirmed by letter then of 8 April 2024. This recounts that the claimant had struggled with anxiety and PTSD like symptoms stemming from the incident at the employer prior to the respondent. It stated that she had felt nervous, but felt like she was able to manage her anxiety due to her anti-anxiety medication and using techniques she had learnt at university. The claimant had studied psychology. There was then discussion of how she had disclosed her condition to her current employer – an employer after the respondent. The claimant’s mental health was said to have been affected from May 2022 to July 2023, but a redaction has been made in the report where it deals with the cause. The claimant had expressed the view that there had been a failure by her manager (within the respondent) to properly support her and provide reasonable adjustments.[13]The claimant’s grounds of complaint in her tribunal claim form, which she has not herself referred to today, but were considered by the tribunal, refer to her successfully being appointed to the position of care manager with the respondent on 5 September 2022 and her successfully passing her 3 month probation in December 2023. She referred to there being no performance improvement plans in place and her having a clean disciplinary record prior to her dismissal in June 2023. She referred to her initial supervision meeting on 22 December 2022 where she said that she was enjoying the role and all the challenges it brought, although she did have moments when she felt like there was a lot for one person to be doing and not enough time in the day to complete all the necessary tasks. She said that she was currently trying her best to do things at a pace which was manageable for her.[14]In January 2023, she described herself as becoming more vocal regarding increased demands on her and her need for assistance. On 12 January 2023 she sent a message to her manager saying that her well-being was being significantly impacted and things needed to be addressed. She described herself as having minimal to no strength coming in that day due to the events of the previous day and that she mentally could not cope with lasting a full working day whilst things had not been addressed. She said that physically and mentally she had no more to give at that moment and said: “I am just depleted at the moment”. The claimant completed a care call on that day but did not return to work for the remainder of the day.[15]The claimant notes in the grounds of complaint her mental health taking a rapid decline towards the end of April 2023 which she felt was sinking her into a black hole. She agreed that there was a change in the standard of her work at that point.[16]Throughout the claimant’s employment with the respondent, there is no other evidence beyond the day of 12 January 2023 of any absence from work other than on 28 and 29 May 2023 due to a stomach bug. The respondent has no record of any other absence and the claimant has not identified any other periods when she was unable to attend work due to sickness.[17]The claimant’s impact statement describes issues with concentrating, lack of functionality, lack of sleep, motivation, memory/congested mind, irritable Case No: 6002164/2023 10.8 Reasons – rule 62(3) March 2017 bowel syndrome, headaches and reduced appetite/loss of appetite. She described struggling to keep to a simple daily routine and struggling to complete simple tasks like getting out of bed, bathing and eating. She says that since the trauma in the workplace in her employment preceding that with the respondent, she had struggled with reduced confidence in work environments. This caused her to worry excessively about her performance and her being judged and humiliated, resulting in the need to overcompensate to ensure she exceeded expectations.[18]Whilst some of the affects described may have been experienced during the claimant’s employment, the tribunal has no evidential basis for concluding that any of them were. There are a lack of concrete examples or any timescale given by the claimant during which she suffered any particular affects. She described additional responsibilities and pressure causing exhaustion and extreme burnout, but that due to her previous workplace trauma she remained engaged and communicative to ensure she met performance expectations despite no reasonable adjustments being made. The more severe affects described are inconsistent with the performance of her role with the respondent which the claimant was able to deliver and her lack of significant absences from work. The lack of medical intervention in the period of her employment with the respondent is further noted.[19]The tribunal concludes that the description of affects, on the balance of probabilities, relates to the period prior to the claimant’s employment with the respondent and how she has been affected since her dismissal.[20]It is clear that the claimant had a demanding job which required her to be professional and to interact with those who reported to her, more senior colleagues and external bodies. She accepted that networking was part of her role. This was a role which the claimant did undertake, whilst with the respondent. She did not seek to remove herself from the performance of any particular type of duty. Despite occupational health comments of a lack of fitness in August 2022, the claimant was shortly thereafter able to start this employment. After leaving the respondent the claimant quickly obtained alternative employment and then moved without break to a second alternative employer.[21]The claimant told the tribunal that she had felt stressed and overworked with the respondent and her relationship with her manager had deteriorated. However, she had not appreciated there were any failings in her performance at the time and it had been projected to her by her manager, she said, that she was meeting performance requirements. It was only after her employment had ended that, on reflection, she believed she was simply surviving and that, whilst jobs had been getting done, they had not perhaps been done in the most logical manner or to the best of the claimant’s ability. Leaving employment and getting support since had enabled her to see that she had, whilst with the respondent, been at rock bottom. There is an element of after the event reconstruction in the claimant’s evidence.
Applicable law
[22]Section 6(1) EqA 2010 provides that: Case No: 6002164/2023 10.8 Reasons – rule 62(3) March 2017 “A person (P) has a disability if - P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities”.[23]The burden lies on the claimant to satisfy the tribunal that, on the balance of probabilities, she was disabled at the relevant time.[24]The definition poses four essential questions: i. Did the claimant have a mental impairment? ii. Did the impairment have an adverse effect on her ability to carry out normal day-to-day activities? iii. Was that effect substantial? iv. Was that effect long-term?[25]The tribunal should not proceed by rigid consecutive stages. In cases where there is a dispute about the existence of an impairment, it makes sense to start by making findings about whether the claimant’s ability to carry out normal day-to-day activities was adversely affected (on a long-term basis) and to consider the question of impairment in the light of those findings (J v DLA Piper LLP UKEAT/0263/09, at paragraph 40).[26]An impairment will only amount to a disability if it has an adverse effect on the individual’s ability to carry out normal day-to-day activities, i.e. things that people do on a regular or daily basis.[27]Was that effect then substantial? “Substantial” means “more than minor or trivial” (section 212 EqA 2010). Section B1 of the Guidance On Matters To Be Taken Into Account In Determining Questions Relating To The Definition Of Disability (2011) (“the Guidance”) states “The requirement that an adverse effect on normal day-today activities should be a substantial one reflects the general understanding of disability as a limitation going beyond the normal differences in ability which may exist among people”.[28]The primary focus of the tribunal should be to consider the effects of the impairment on the claimant. “In order to be substantial the effect must fall outwith the normal range of effects that one might expect from a cross section of the population. However, when assessing the effect, the comparison is not with the population at large. … what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired.” (Paterson v Commissioner of Police of The Metropolis [2007] IRLR 763, EAT, at paragraph 27)[29]The tribunal should focus on what the claimant could not do because of her impairment, rather than what she could still do despite her impairment Case No: 6002164/2023 10.8 Reasons – rule 62(3) March 2017 (Aderemi v London and South Eastern Railway Ltd UKEAT/0316/12, EAT at paragraph 14).[30]The effect of an impairment on more than one activity, taken together, could result in an overall substantial adverse effect (paragraph B4 of the Guidance).[31]An impairment will have a long-term effect if it has lasted for at least 12 months, it is likely to last for at least 12 months or it is likely to last for the rest of the life of the person affected (paragraph 2(1)(a)-(c), Schedule 1, EqA 2010).[32]The impairment must have long-term effect at the time that the alleged acts of discrimination were committed.[33]If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur (paragraph 2(2), Schedule 1, EqA 2010).[34]“Likely” means something that “could well happen”.[35]The likelihood of the recurrence of a substantial adverse effect must be assessed at the date of the alleged act of discrimination (McDougall v Richmond Adult Community College [2008] IRLR 227, CA, at paragraph 26). As Lord Justice Pill states in that paragraph: “where a recurrence has occurred, paragraph 2(1) read with paragraph 2(2), has the effect of "back-filling" the period since the last occurrence for the purposes of paragraph 2(1) so that the entire period counts towards the relevant period. That does not, in my judgment, bear upon the date at which the likelihood of recurrence is to be assessed for the purposes of paragraph 2(2). It is fundamental that the question whether a wrong has been committed be judged by the circumstances existing at the date of the act or acts alleged to constitute the wrong.”[36]The Court of Appeal held in All Answers v W [2021] EWCA Civ 606, per Lewis LJ [at 26]: “The question, therefore, is whether, as at the time of the alleged discriminatory acts, the effect of an impairment is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts. A tribunal is making an assessment, or prediction, as at the date of the alleged discrimination, as to whether the effect of an impairment was likely to last at least 12 months from that date. The tribunal is not entitled to have regard to events occurring after the date Case No: 6002164/2023 10.8 Reasons – rule 62(3) March 2017 of the alleged discrimination to determine whether the effect did (or did not) last for 12 months… account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood”[37]In assessing this, medical evidence is important. Simply the existence of an impairment, even if it is being treated, does not automatically lead to an inference that it was likely to last 12 months. This is particularly true with anxiety and depression. As Underhill J held in the EAT case of RBS v Morris UKEAT/0436/10/MAA: “We do not think that any safe inferences could be drawn from the fact that the Claimant was told that he should continue with the medication for six months, which might only have been precautionary. This is just the kind of question on which a tribunal is very unlikely to be able to make safe findings without the benefit of medical evidence” [at 61] “the evidence did not in our view justify such a conclusion. Dr O’Donovan’s contemporary note simply diagnoses a “severe UKEAT/0436/10/MAA -40- depressive episode”, with no prognosis of any kind…The Tribunal could not without expert evidence form any view on the likelihood of that impairment (at the necessary level of seriousness) continuing for at least a year” [at 62] “The fact is that while in the case of other kinds of impairment the contemporary medical notes or reports may, even if they are not explicitly addressed to the issues arising under the Act, give a tribunal a sufficient evidential basis to make common-sense findings, in cases where the disability alleged takes the form of depression or a cognate mental impairment, the issues will often be too subtle to allow it to make proper findings without expert assistance. It may be a pity that that is so, but it is inescapable given the real difficulties of assessing in the case of mental impairment issues such as likely duration, deduced effect and risk of recurrence which arise directly from the way the statute is drafted” [at 63];[38]Did the claimant have a mental impairment? “Impairment” in this context bears “its ordinary and natural meaning”. “It is left to the good sense of the tribunal to make a decision in each case on whether the evidence available establishes that the [Claimant] has a physical or mental impairment with the stated effects” (McNicol v Balfour Beatty [2002] IRLR 711, CA, paragraphs 17 and 19).[39]The term “mental impairment” is intended to cover “a range of impairments relating to mental functioning…” (paragraph 6 of Appendix 1, EHRC Code of Practice on Employment 2011). Case No: 6002164/2023 10.8 Reasons – rule 62(3) March 2017[40]The claimant’s impairment is pleaded as anxiety. It is not necessary for the claimant to establish a medically diagnosed cause for her impairment. She does not need to identify a “clinically well recognised” illness. It is the effect of the impairment that must be considered and not its cause (paragraph A7, Guidance).[41]The focus of the Tribunal’s enquiry should be on the effect that the impairment has on the claimant’s day-to-day activities (DLA Piper, paragraph 38). If the tribunal finds a long-term substantial adverse effect, it will, in most cases, follow “as a matter of common sense inference” that the claimant is suffering from an impairment which has produced that effect.[42]In DLA Piper, the EAT drew a distinction between symptoms of low mood and anxiety caused by clinical depression and those derived from a “medicalisation of work problems” or “adverse life events”, concluding that whilst the former was likely to be a disability, the latter was not (paragraph 42).[43]The aforementioned legal principles were not all addressed in submissions, where determining the issue, for instance, of long-term effect and recurring effect of impairments can be problematical. The tribunal has sought to view the totality of its findings against the various alternative potential routes through to a finding of disability status. The tribunal then arrives at the conclusion set out below.
Conclusions
[44]It can be accepted on the evidence that the claimant experienced anxiety symptoms from 16 May until the beginning of September 2022. There was in this period a substantial effect on her ability to carry out normal day to day activities. The evidence does not, however, support the second episode of the claimant allegedly experiencing such symptoms from December 2022 until the termination of her employment. The tribunal cannot on the evidence accept that there was then a recurrence of the substantial adverse effect.[45]Medical evidence of the claimant suffering from anxiety is scant. The evidence is that the claimant’s condition was stabilised by September 2022 and more likely deteriorated thereafter only subsequent to her dismissal and as a result of it, prompting only then further medical intervention which had not been required since early September 2022.[46]In the interim period, the claimant did not feel the need to see a doctor or to obtain a further prescription for medication or obtain any support from any form of counselling.[47]From January 2023 she clearly believed that she was overworked and insufficiently supported. There is evidence that she became overwhelmed by work on a single day on 12 January 2023. However, she did not understand herself to be impaired by the condition of anxiety. If she had experienced the similar adverse effect on normal day to day activities that she had from 16 May 2022 and for a few months thereafter, she would have been in no doubt. Case No: 6002164/2023 10.8 Reasons – rule 62(3) March 2017[48]As at 16 June 2023, the claimant had not suffered a substantial adverse impact on her ability to carry out normal day-to-day activities for a period of 12 months. At most she had suffered a substantial adverse impact for a period of 3 and a half months from 16 May 2022.[49]As at 16 June 2023, no earlier substantial adverse effect had recurred. There was no recurrence which could bridge the gap from the earlier period where there was a substantial adverse effect. Nor could it be said then that any substantial adverse effects were likely to recur. There is no evidential basis upon which the tribunal could reach that conclusion. It must make its assessment uninfluenced by events occurring after the claimant’s dismissal.[50]This is not a straightforward case and it is often said that, in some respects, the hurdle of showing disability status is not a particularly high one. The concentration of the tribunal must be not on what the claimant was able to do, but on what she was unable to do or only able to do with difficulty. The claimant’s ability to carry out normal day-to-day activities has to be considered as if she was not receiving any prescribed medication or treatment. Nevertheless, a tribunal’s determination of disability status must be based upon the evidence in circumstances where there is a burden of proof on the claimant to show that she was at the material time a disabled person. On the evidence before the tribunal today, the claimant has not satisfied the burden. The tribunal does not find that she was at the material time of her dismissal a disabled person by reason of anxiety.[51]As a result, the claimant’s sole remaining complaint of disability discrimination must be dismissed.