The claimant was not disabled by anxiety and depression at the time relevant to his claim.
REASONS
[1]The claimant brought various claims of discrimination contrary to Sections 13, 15, 19, 21, 27 and 43B of the Equality Act 2010. The claimant relies upon disability as a protected characteristic. The respondent accepts that the cancer previously suffered by Mr Lear was a disability at the time relevant to his claims. The respondent does not accept that Mr Lear was disabled by anxiety and depression at the relevant time.[2]The sole issue I had to determine at this preliminary hearing was whether or not Mr Wear was disabled by anxiety and depression at the time relevant to his
claims.
[3]The panel heard evidence from the claimant Mr Lear only. FACTS[4]I panel found the following facts.[5]Mr Lear started work for the respondent on 4 April 2012 as a mobile caretaker. The Respondent builds, renovates and manages affordable housing. Case No. 6004204/2024 Case No. 2413637/19 2[6]Mr Lear asserts that he has had mental health issues which have come and gone during his life. These issues, he asserts, include anxiety and depression.[7]Mr Lear claims that he suffered detriments after making protected disclosures about dangerous exhaust fumes from the respondent’s vans, from January 2022 to January 2024.[8]Mr Lear produced extracts from his medical records which were redacted in many parts. The first entry in Mr Lear’s medical records of relevance to the issue of anxiety and depression was on 1 April 2010. The majority of that entry was redacted by Mr Lear leaving only two words from Dr Butler; “Very anxious.”[9]On 16 December 2011 the entry records that Mr Lear saw Dr Butler about a number of lesions on his torso and body. Mr Lear was said to be terrified of cancer and the note recorded that he had had a panic attack in the surgery.[10]On 17 February 2012 Dr Butler’s record was of Mr Lear suffering from panic attacks, and he was referred as an outpatient to the community mental health team. Following this he completed a questionnaire for anxiety disorder, but no diagnosis of anxiety disorder flowed from this.[11]The records show that he was seen at a mental health clinic on 29 February 2012 and again on 23 March 2012. No information about those visits is recorded in the notes.[12]On 15 September 2015 the note records the cancer issue and his feeling very anxious at the time for which he was diagnosed with diazepam. There is also a letter from Mr Lear’s Consultant Clinical Oncologist who saw him on 15 October 2015 and described Mr Lear as being a very anxious man who has been struggling to cope with his cancer diagnosis. A further letter from the same consultant dated 25 November 2015 shows that Mr Lear had been referred to a counsellor because of his anxiety.[13]An entry in his medical records dated 1 December 2012, post-operation, discloses that he was extremely anxious about the cancer returning. He was prescribed sertraline for his anxiety. He was also having mental health counselling in relation to his post-cancer diagnosis and treatment. In cross examination Mr Lear agreed that he is an anxious person, and he was afraid at that time of the cancer returning.[14]The entry for 29 December 2015 discloses that Mr Lear was feeling somewhat better as he had stopped taking sertraline because he found the counselling helpful and he wanted to return to work. In evidence Mr Lear said that he relied upon the psycho-oncology service and participated in cancer support groups[15]On 15 July 2016 his records show that he was reporting to his GP, Dr Cardoso, with anxiety again, following headaches and a referral to ENT and a CT scan. This episode brought back memories of his cancer. His GP gave him reassurance and prescribed propranolol. Case No. 6004204/2024 Case No. 2413637/19 3[16]The next entry of 23 June 2017 was largely redacted by Mr Lear. The unredacted portion reveals that he was worried about cancer returning, but the record appears to show no particular treatment was required.[17]The next entry is dated 13 September 2018 and is almost completely redacted save for a comment “Reassured patient”.[18]On 13 December 2018 Mr Lear saw his GP, Dr Cox. Most of this entry is redacted, but it can be seen that the issue was anxiety, which had flared up, and for which he asked for a further prescription for diazepam, which he had been taking for the previous 2-months.[19]Mr Lear produced a medical note by Dr Jamali dated 26 August 2020 which records that Mr Lear was very apprehensive about a growth on his eyelid which he thought might be cancerous. He was advised to monitor it and seek medical attention if it changed size, shape or colour.[20]On 11 July 2023 he was seen by Dr Amir as he had a concern about a swelling in his groin and he was referred for an ultrasound. On that occasion there was no record of anxiety.[21]The next entry in his medical record printout is from 29 January 2024 when he reported that he was struggling with anxiety at work. Much of Dr Ahmad’s note has been redacted by Mr Lear. This note coincides with the date when his sickness absence began. On this occasion no medication was prescribed.[22]The next entry is from 9 February 2024 which records a mental health review and Mr Lear reporting feeling anxious and panic attacks. The next entry on 29 February 2024 has been largely redacted but discloses a complaint of being victimised at work. He reported panic attacks and feeling stress and depression as a result of what was happening at work. This is the first reference in Mr Lear’s medical records to depression. This was self-reported and not a diagnosis or medical opinion. He was prescribed propranolol.[23]On 13 March 2024 Dr Solaiman records that Mr Lear was suffering from stress at work and was prescribed Mirtazapine and Sildenafil.[24]A redacted copy of the note of his attendance on 2 May 2024 shows that Mr Lear was complaining of stress at work relating to ongoing issues and asked for his medication to be increased. On 21 May 2024 he reported to his GP that he was struggling mentally due to work stress and was having panic attacks.[25]On 11 June 2024 Dr Hussain saw Mr Lear who complained of issues at working causing him a lot of stress. Dr Hussain recorded the problem as “Mixed anxiety and depressive disorder”. This is the first mention of depressive disorder in his medical records. Case No. 6004204/2024 Case No. 2413637/19 4
The Law
[26]The relevant law is contained in the Equality Act 2010 in the following section.[27]Section 6 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. Appling the law to the
FACTS
[28]Although the medical records produced by Mr Lear in support of his claim were incomplete, in that they had been redacted, and quite heavily in parts, they were sufficient for the purpose of building an informative chronology.[29]The chronology begins in April 2010 when his GP recorded that Mr Lear was very anxious. The cause of that anxiety was redacted by Mr Lear. There is then a long gap in the records until December 2011 when the GP recorded that Mr Lear was particularly concerned about cancer. He was terrified and had experienced panic attacks.[30]On 17 February 2012 there is reference to another panic attack and Mr Lear completed a questionnaire on that occasion for anxiety disorder. However, he was not diagnosed with anxiety and disorder following that assessment.[31]It was not until 3½ years later that a GP record of any substance appears and this was at about the time of his cancer diagnosis. On that occasion he was prescribed a month’s worth of diazepam because he was understandably anxious about the cancer diagnosis.[32]He returned to his GP on 1 December 2015 when he was extremely anxious and fearing the cancer could come back. I note his evidence in cross examination which was that he was an anxious person anyway. On this particular occasion he was given a month’s prescription of sertraline.[33]A letter from his oncologist in October 2015 also described him as being very anxious and this was repeated in a second letter the following month. I find this form of anxiety must be common and entirely to be expected of someone being treated for cancer. It is apparent that his anxiety at that time was directly linked to a specific and serious physical health condition.[34]On 15 July 2016 he was back at his GP surgery again suffering from anxiety because he was worried about a CT scan following a referral from ENT after complaining of headaches. Again, his underlying fear was over the return of cancer. On this occasion he was prescribed medication for a period of time. Case No. 6004204/2024 Case No. 2413637/19 5[35]On 23 June 2017, almost a full year after his last visit, he expressed his worry about cancer returning.[36]On 13 September 2018 he saw his GP again. I do not know the reason for that visit, because Mr Lear redacted part of this entry. However, he was not prescribed any medication on that occasion but received reassurance from his doctor. Mr Lear’s anxiety flared up again in December 2018.[37]In 2020 he had a further concern about cancer, this time of the eyelid, but his records made no reference to anxiety at that time. It was not until 2024 that we see a fresh cycle of GP appointments which in general terms speak of anxiety. But this time his anxiety was related to stress arising from events at work and not fear of cancer.[38]It was not until 11 June 2024 that his GP record provide mention of mixed anxiety and depressive disorder.[39]Mr Lear invites me to find that at the relevant period of his employment he was suffering from anxiety and depression. Based on the evidence I have seen and heard, I find that he did not suffer from anxiety and depression at the relevant time he complains of.[40]Mr Leah has grappled with anxiety at various points in his life. There was a period from April 2010 to March 2012 when his records show he was suffering from anxiety and panic attacks. But from the absence of further entries in his records, I conclude that this particular first phase of anxiety subsided in 2012. There is no evidence of him suffering of anxiety or anxiety so serious as to cause him to mention it to his doctor until over 3½ years later, when he had obvious cause to be anxious.[41]Mr Lear has been very anxious and fearful about his health and in particular about cancer. Such fear and anxiety is perfectly understandable. To support him and his anxiety, he relied upon the psycho-oncology service and participated in Cancer Support groups. He relied upon these services because of his concerns about cancer at that time and no doubt cancer remains a constant source of concern for him.[42]But worrying, concerns and feeling anxious about certain life events, difficulties, and one’s health is not the same as having a clinically recognised anxiety disorder or depression in my judgement.[43]At no time, despite numerous visits to his GP, was he diagnosed with clinical anxiety. No doubt this was because his doctors recognised his was general worry and anxiety directly linked and confined to his broader physical health, rather than a serious mental impairment.[44]The latest cycle of GP visits, in which he complained of stress, anxiety and depression, did not begin until late January 2024, after he went on sickness absence from the respondent. These visits led to the diagnosis of mixed anxiety and depressive disorder. This latest cycle of visits to his GP are clearly distinct from the earlier cycles of visits to his GP. The first in 2010-2012 which appears to have Case No. 6004204/2024 Case No. 2413637/19 6 resolved itself with limited clinical involvement. The second from 2015 to 2020 which was very clearly connected to his worry about cancer. He may now be suffering from clinical anxiety and depression, perhaps as a result of his conflict with the respondent. But the medical evidence does not support Mr Lear’s claim that he was suffering this at the time to his claims.[45]Therefore, I find that Mr Lear did not have a mental health impairment in the form of anxiety and depression at the relevant time. Judge C J Cowx 31 May 2025