Employment Judge WisbyMs E Margetts (instructed by Counsel) for claimantMs C Nicolaou (instructed by Solicitor) for respondentDate 22 August 2025
JUDGMENT
The Claimant was disabled within the meaning of the Equality Act 2010 with the condition of a mixed anxiety and depressive disorder at the material time of 26 March 2024 to 21 May 2024
REASONS
[1]The tribunal was presented with: 1.1. An agreed bundle. 1.2. For the claimant, a written disability impact statement, supplementary statement and oral evidence from the claimant. Agreed Issues for preliminary hearing[2]Whether the claimant was a disabled person within the meaning of section 6 Equality Act with the condition of a mixed anxiety and depressive disorder at the material time of 26 March 2024 to 21 May 2024.[3]The issue of knowledge of disability (is reserved for the final hearing)[4]Did the claimant during the period of 26 March 2024 to 21 May 2024, suffer a mixed anxiety and depressive disorder ?[5]If so, did the mixed anxiety and depressive disorder have a substantial (meaning more than trivial) adverse effect on his ability to carry out normal day-to-day activities during that period?[6]If so: 6.1. had such effect lasted for at least 12 months; 6.2. was such effect likely to last for at least 12 months; or 6.3. was such effect likely to last for the rest of the life of the person effected?[7]The respondent’s position is that the claimant suffered an acute episode from 6 – 26 March 2024 during which it accepts that the mixed anxiety and depression had a substantial effect on day-to-day activities but that it did not have such an effect outside of that date range and it was not therefore long term.[8]Preliminary matters and case management[9]A private preliminary hearing was held on 14 March 2025 begore Employment Judge Elliott at which case management orders were made and today’s hearing listed. No further case management orders were required today for the final hearing. The respondent may apply for video evidence from one of its witnesses in due course the claimant did not view that as being an issue. The Law Disability
The Law
[10]The statutory test to be applied to determine whether a person is a disabled person requires the tribunal to consider whether that person has a disability at the material time. 1. Section 6 Equality Act 2010 provides that: (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.[11]Guidance upon the essential elements of this statutory test is provided in Schedule 1 of the Equality Act 2010 and Equality Act 2010 Guidance (“Guidance”).[12]The onus is on the claimant to prove that, in the relevant period, he was disabled for the purposes of the Act.[13]At the date of or during the period of any discrimination, the claimant must have had either a physical or mental impairment or impairments. An impairment may include mental health conditions as well as mental illness, such as depression. The Guidance at A7 explains that it is not necessary to consider how an impairment is caused, “What is important to consider is the effect of an impairment, not its cause – provided that it is not an excluded condition”. 2. The tribunal must consider whether any impairment adversely effects or effected the claimant’s ability to carry out normal day to day activities. Relevant day to day activities are not necessarily work activities but may be. 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." (Guidance paragraph D3). 3. The adverse effect on day-to-day activities must be both substantial and long term. In this regard: 3.1. A “substantial adverse effect” is an effect which is “more than minor or trivial” (section 212(1) Equality Act 2010); and 3.2. An effect is long term if it has or is likely (i.e. “could well happen”: Para.C3, Guidance) to last for at least 12 months (Paragraph 2(1); Schedule 1, Equality Act 2010). 4. In Tesco Stores Ltd v Tennant UKEAT/01617/19, the EAT confirmed that an impairment must have long-term effect at the time that the alleged acts of discrimination are committed. Therefore, if the claimant's condition has not lasted at least 12 months at the time of the alleged discriminatory act (or, if there is more than one act, at the time of each act), the claimant will not meet the definition of disability unless they can instead show that, at the time of the alleged discriminatory act (or acts), their condition was likely to ( i.e. could well) last 12 months or for the rest of their life. 5. In Morris v Lauren Richards Ltd [2023] EAT 19 the claimant had for three and a half months suffered anxiety for work-related reasons, the tribunal concluded that the anxiety was unlikely to persist after she was dismissed. The EAT held the likelihood of long-term impairment must be considered at the time of the alleged detriment rather than after her dismissal. The assessment of the likelihood of the adverse effect lasting for 12 months is to be made as at the date of the alleged discrimination and must not take into account anything only known or occurring after that time. 6. The long-term requirement relates to the effect of the impairment rather than merely the impairment itself. It is therefore not sufficient that a person has an impairment that is long-term; the impairment must have a substantial adverse effect on day-to-day activities that is long-term. 7. If an impairment ceases to have a substantial adverse effect, it is to be treated as continuing where it is likely to (or “could well”) recur (Paragraph 2(2); Schedule 1, Equality Act 2010). This is a lower test than the balance of probabilities and it is a broad test looking at the reality of the risk that it could well happen on the evidence that is available. The likelihood of the effect of the impairment lasting 12 months or more has to be assessed at the time of the alleged discriminatory act. The occurrence of an event in month six does not prove that, viewing the matter exclusively as at month one, that occurrence was likely. It merely proves that the event happened, but by itself leaves unanswered whether, looking at the matter six months earlier, it was likely to happen, a question which has to be answered exclusively by reference to the evidence then available. 8. In assessing whether an impairment has the required substantial adverse effect the so called "corrective measures doctrine" applies. This requires the tribunal to ignore the effect of measures being taken to treat or correct the impairment. The focus should be whether the impairment would likely have a substantial adverse effect in the absence of such treatment (Paragraph 5(1); Schedule 1, Equality Act 2010; Paragraphs. B12-14, Guidance). For example, in a case concerning a mental health condition the tribunal must ignore the effects of counselling and medication. 9. The following non-exhaustive factors are listed in the Appendix to the Guidance as being “reasonable to regard as having a substantial adverse effect”: 9.1. Difficulty in getting dressed, for example, because of low mood; 9.2. Difficulty entering or staying in environments that the person perceives as strange or frightening; 9.3. Persistent general low motivation or loss of interest in everyday activities; 9.4. Frequent confused behaviour, intrusive thoughts; 9.5. Persistently wanting to avoid people or significant difficulty taking part in normal social interaction or forming social relationships, for example because of a mental health condition or disorder; 9.6. Persistent distractibility or difficulty concentrating. 10. This is contrasted with the Guidance in the Appendix on factors that it would not be reasonable to regard as having substantial adverse effect on normal day to day activities, which include: Inability to concentrate on a task requiring application over several hours. 11. The tribunal’s focus should be on what a person cannot do (or has difficulty doing) rather than what he/she can do. Findings of Fact 12. The claimant commenced employment on 13th June 2022 customer service manager. 13. The claimant raised with the respondent that he was struggling with his personal and professional in July 2023; an email from his manager regarding performance issues in July 2023 notes : James highlighted that he is currently seeking help for his mental health as he felt like he was struggling to cope with his personal and professional life. I've offered for us to discuss how we can support his mental health in the workplace.
Findings of Fact
[14]The claimant gave evidence that he did not seek professional help at that time, nor did he give specific evidence of examples of any impact of his mental health on day-to-day activities at that date.[15]The claimant had not taken time off work due to mental health issues prior to March 2024.[16]The respondent in its ET3 accepts that on 7 March 2024 ‘the Claimant informed Ms Cherif that he was feeling stressed and anxious and that he was having “dark thoughts.” Ms Cherif told the Claimant to take some time off and to seek some external help if needed’.[17]The claimant’s medical records show that on 8 March 2024 he contacted his GP surgery regarding the problem of ‘mixed anxiety and depressive disorder’. The telephone consultation notes record the claimant stating that: patient feeling low in mood; thought self harm; by driving crash; mood is very low; sleeping ok; lack of energy, lack of motivation. ‘Suicide idea’ is recorded and anti-depressants are prescribed (Sertraline 50mg tablets) an urgent referral is made to an NHS mental health team.[18]On 9 March 2024 the claimant had an appointment with a private GP via Vitality. The Vitality record of that appointment sent to the claimant’s GP states “James has consulted today with symptoms of moderate depression. He has been referred for talking therapy but has requested a sick/fit note for some time off.” The Vitality doctor’s notes record that the claimant stated: Feeling low in mood for a while- few yrs possibly, gradually getting worse. Broke down few days ago, told wife how he was feeling-not done before; Struggling day to day; Relationships suffering, work suffering; No motivation or drive; Thoughts in his head of self harm/suicide -often when driving on his own, thinks about intentionally crashing the car. Only on his own. Feels this way as wants a break from how he is feeling. Overwhelmed by his thoughts. Wants a breather. Rather than wanting to end his life; These thoughts about ending his life for 5-6 months now. Becoming more often- probably about 1x/week; Think probably last felt like himself 2-3 yrs ago. The notes go on to record: 18.1. Other depression sx: 18.1.1. hopelessness - feeling this has been amplified since admitting to his wife how he is 18.1.2. no motivation - in all areas of life, struggles even at weekends, just wants to lie down and not do anything 18.1.3. anhedonia -does still enjoy some things in life- has friends he can play playstation with and have a laugh, still enjoys going out with his wife and child and being with them. 18.1.4. feels he is not always present 18.1.5. poor concentration- not finishing tasks, drifting off into his thoughts 18.1.6. prefers to stay at home, avoiding socialising 18.1.7. sleep- wanting to sleep more, not feel refreshed in the morning, can have long wake ups in the night. 18.1.8. appetite- not sure, does not think affecting his appetite. but has lost few kg past month or so. thinks this is due to training for the London marathon- wife persuading him to train. once he is out he feels good for being outside. 18.1.9. anxiety- around work, when he receives message from work, worse on days off/time off. often gets messages late at night, will play on his mind until he deals with it.[19]The doctor recorded that the claimant has tried using the ‘Headspace’ and other apps but he did not find them helping. A referral to talking therapies was made.[20]Following a consultation with an NHS mental health team on 14 March 2024 the claimant was issued a statement of fitness for work from 13th March to 22nd March 2024, this stated he was not fit to attend work as a result of the diagnosis: Depression and stress.[21]The NHS follow up letter dated 18 March 2024 from his appointment with the mental health team on 13 March 2024 records that the claimant reported: low mood and increased anxiety with worsening symptoms over the last 6 months. James identified the trigger as work-related stress; Displaced fleeting suicidal thoughts intrusive thoughts of harming himself by crashing his car but denies any plans or intent to act on his thoughts; No history of any past suicide attempts. The letter records that a referral was made to a Trust to offer support with his current employment and alternatives – his care was transferred back to his GP but he was provided with contact details in the event of a crisis. It was reported that his mood had slightly improved since being away from work. It was reported that he was anxious about job security and concerned that taking sick leave would look negative.[22]The respondent states in the ET3 that at a meeting on 26 March 2024: The Claimant said that he had seen his GP and started on anti-depressants. By agreement it was decided that in the short term the Claimant’s role would be adjusted such that he would not need to deal with customers; rather, he would act in a supporting role to the rest of the team until such time as he felt ready to return to his customer facing role.[23]I am satisfied that after a meeting 26 March 2024 the claimant returned to work. The supporting (non-customer facing) role was stated by the respondent to be until the claimant felt ready to talk to customers again.[24]I accept the claimant’s evidence that after he returned to work, whilst things had improved a bit for him, in that he no longer wanted to commit suicide, he was still operating under a haze and not fully functioning in terms of undertaking work and home activities.[25]I accept that on 9 April 2024 a telephone appointment was made for the claimant on 11/04/24 with the PCN Mental Health Team, at that appointment a referral for CBT (cognitive behaviour therapy) / NHS counselling was made; due to long waiting lists this NHS therapy did not commence during the relevant time period.[26]On 21 May 2024 the claimant’s employment was terminated.[27]I accept that the claimant did receive repeat prescriptions of the anti-depressant medication and that the claimant was taking this medication through the relevant time period at which disability should be assessed (26 March 2024 to 21 May 2024) – I did not consider the questioning about this matter inappropriate.[28]I accept the claimant paid for private weekly CBT therapy from mid-March to midApril 2024 at which point those sessions ceased due to cost.[29]I find that during the relevant period the claimant had at all times the mixed condition of depression and anxiety and had that impairment for at least 6 months leading up to the beginning of March 2024.[30]Based on the medical records, impact statements and oral evidence I find that the claimant’s impairment had, for at least the 5-month period prior 8 March 2024, caused difficulty sleeping, poor concentration, and low motivation to carry out work and social activities and household jobs.[31]I accept the claimant’s evidence that when he wasn’t working he would not want to do anything, that he worried about going out before and when out, that he felt that I was pretending to be ok, which was exhausting and had the effect that when he went home, he had no energy to be with his family and that he was tired and withdrawn following engagement in social situations.[32]I accept the claimant’s evidence that whilst he did still get pleasure from some activities (such as playing on the PlayStation) his ability to take part in social activities was negatively impacted (the focus in assessing disability is what he could not or had difficulty doing rather than what he could do).[33]I accept the claimant’s evidence that the impairment impacted the claimant’s ability to proactively engage with work and home activities and instead his actions were reactive, for example at home he would have to be asked to do something more than once before undertaking that household chore rather than just getting on and doing the tasks that needed doing.[34]I accepted the Claimant’s evidence that at social events he would prefer to hide himself away with his daughter to avoid engaging in the social contact rather than being engaged in the social contact as he would have been previously.[35]The Claimant applied to become a foster carer on 17 May 2024.
Discussion and Conclusions
[36]I do not find the fact that the claimant applied to be a foster carer with his wife is material evidence showing that there was not a substantial effect of the impairment on the claimant’s days to day activities by 17 May 2024. I consider it is possible for both things to be true, i.e. that the claimant could want (and apply) to be a foster carer with his wife, and that his depression and anxiety were having a substantial effect on day-to-day activities at that time. The claimant knew there was a significant delay before fostering could commence if they were approved and hoped to recover in that interim period.[37]At the hearing today the respondent did not focus on the claimant working with/helping his brother with a pizza business – I am satisfied that any such evidence prior to 21 May 2024 does not show that there was no substantial effect of the impairment on day-to-day activities.[38]Application for jobs, such as to the Metropolitan police, were post the point of assessment for today’s purposes and as such are not relevant to the decision to be made today.[39]The respondent’s position is that the claimant was suffering an acute episode from 6 March to 26 March 2024. The respondent accepts that the claimant suffered from depression and anxiety at that time and that impairment had a significant effect on his day-to-day activities from 2 – 26 March 24 (which was when the claimant returned to work). The question therefore is did the impairment of mixed depression and anxiety have a substantial and long-term adverse effect on the claimant’s ability to carry out normal day-to-day activities (or was it a limited episode as per the respondent’s contention).[40]I was referred to the case of Royal Bank of Scotland Plc v Morris [UKEAT/0436/10] in which the EAT concluded that the contents of contemporaneous medical notes in that case did not permit conclusions to be drawn on essential elements in the definition of disability, including the duration, or likely duration, of C’s impairment. I was also referred to the more recent decision of Her Honour Judge Eady in Nissa v Waverly Education Foundation Ltd and anor EAT 0135/18 held that the tribunal in that case had incorrectly focused on the question of diagnosis and had adopted a too narrow approach to the matter of whether the effects were likely to be long term. Instead, it should have looked at the reality of risk (i.e. whether the symptoms could well endure), taking a broad view of the evidence available.[41]The Guidance at C4 states: “In assessing the likelihood of an effect lasting 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. Account should also be taken of both the typical length of such an effect on an individual, and any relevant factors specific to this individual (for example, general state of health or age).” It is fair to say that typically depression, anxiety, and suicidal and self-harm thoughts do not arise and disappear overnight. This is supported in the claimant’s case by the medical records and the fact that he did not return to work on full duties but was given a non-customer facing role until he felt up to talking to customers.[42]I find the medical evidence supports the position that there was a build-up of symptoms and the effects of the impairment such that over the 5 month period leading up to the beginning of March 2024 the impairment was having a substantial (meaning more than trivial) effect on the claimant’s day to day activities.[43]In particular I find that the claimant’s impairment had the following substantial effects on day-to-day activities at that time: persistent general low motivation or loss of interest in everyday activities, including proactively undertaking work activities and household tasks, difficulties with concentration on day to day tasks to be undertaken; and difficulty taking part in normal social interaction and social relationships.[44]The claimant took anti-depressant medication and had CBT counselling from March 2024. I am required to ignore the effect of measures being taken to treat or correct the impairment. The focus should be whether the impairment would likely have a substantial (more than trivial) adverse effect in the absence of such treatment.[45]I do not find based on the evidence that the substantial effect of the impairment on day-to-day activities had ceased by 21 May 2024.[46]I have concluded that as at the relevant period the evidence before me today does not support a finding that the substantial effect of the impairment had lasted for at least 12 months (the evidence before me today supports a finding of a substantial effect of the impairment on day to day activities for a period of 5 months leading up to the beginning of March 2024); the next question therefore is whether such effect was likely to last for at least 12 months; or was such effect likely to last for the rest of the life of the person effected?[47]The evidence today supports a finding that (ignoring the effect of measures being taken to treat or correct the impairment) the substantial effect on day-to-day activities existed as at 21 May 2024. Looking forward from that point, putting treatment to one side and considering the typical scenario that the effects of depression and anxiety on day to day activities changes gradually rather than overnight, the evidence supports that the substantial impairment on day to day activities ‘could well’ last at least a further 6 months, meaning that the substantial effect of the impairment was likely to last for at least 12 months in total and the claimant was disabled at the relevant time in accordance with the Equality Act 2010.