Ms S Whitebloom v The University of Oxford: 6008788/2024

EMPLOYMENT TRIBUNALS

Case No 6008788/2024

Between

Ms S WhitebloomClaimant

The University of OxfordRespondent

Before

Employment Judge Milner-Moore

In person for claimant

Mr. C Milsom for respondent

Date 10 March 2025

JUDGMENT

[1]The claimant was a disabled person as defined by section 6 Equality Act 2010

a. From 17 January 2023, because of mild lumbar spondylosis and facet joint arthritis.

b. From 10 January 2024, because of anxiety disorder.

REASONS

[1]This case was listed for a preliminary hearing to consider the following matters:a. Whether the claimant was, at any of the times material to her claim, a disabled person for the purposes of the Equality Act 2010.

b. The making of further case management orders as the Judge hearing the matter shall consider appropriate in order to facilitate such issues as remain between the parties to be determined at the full merits hearing listed in July 2026 as set out below.

c. The possible relisting (in order to facilitate an earlier hearing of the matter) or a shortening of the time estimate for the final hearing, depending on the outcome of the preliminary hearing.

[2]In fact, the parties were agreed that there was no requirement at this stage for further case management orders and no prospect of the hearing being shortened to any significant extent. The case is due to be the subject of a mediation during April and that will provide a further opportunity for case management and for the listing of a dispute resolution appointment in the event that the mediation is unsuccessful.

[3]It was agreed that the impairments said to be disabilities were a physical impairment relating to the claimant’s back (mild lumbar spondylosis and facet joint arthritis) and a mental impairment (anxiety disorder). It was also agreed that the material time period, when considering whether the claimant was disabled by these impairments, was the period between 5 December 2022 (when the first allegedly discriminatory act occurred) and 19 May 2024, which was when the claimant’s employment came to an end.

[4]At the start of the hearing I ran through the fourfold test, derived from section 6 and schedule 1 of the Equality Act 2010, which I would apply in determining the question of disability. The questions that I would be required to address were: At the material time:a. Did the claimant have a physical or mental impairment?

b. Did that impairment have an adverse effect on her ability to carry out normal day to day activities

c. Was that effect substantial? (i.e. was it more than minor or trivial?)

d. Was that effect long term? (had it lasted more than 12 months, or was it likely to do so, or was it likely to recur). Evidence

[5]I heard evidence from the claimant, who had produced a witness statement and some impact statements setting out her evidence in relation to the onset of these impairments and their effects. I also received two bundles of documents. The first was a 204 page bundle (references to which in this judgment are denoted by the prefix “R” before the page number) which included evidence from the claimant’s medical records and various occupational health reports. The second was a smaller claimant’s bundle, which included some evidence of what the claimant had reported to the respondent about her conditions in texts and emails. (References to this are denoted by the prefix “C” before the relevant page number). The parties made closing submissions. I have not set out the closing submissions separately but where, in reaching my conclusions, I have disagreed with the submissions made I have also explained my reasons for doing so. Facts

[6]The claimant was employed by the respondent as a Media Manager in its Public Affairs Directorate. She was employed on a temporary contract from 3 February 2020 and took up permanent employment in around October 2020. During the pandemic, she worked exclusively from home. Subsequently, she worked in the respondent’s office for a day a week, although she also came into the university to conduct interviews and meetings at other times.

[7]During 2021, the claimant began to experience back pain. However, it was not until June 2022 that she felt it necessary to seek treatment from her GP. The claimant had been experiencing back pain for several months by this point [R199] but, on 13 and 14 June 2022, she experienced pain in her back and hip which she described as “quite debilitating” (C5 and 6). She had previously experienced similar episodes of pain and hoped that it would resolve overnight, as it had done in the past. However, it did not and so the claimant saw her GP on 14 June 2022. She was referred for an Xray, provided information regarding stretching exercises and referred for physio. A few weeks later she was called with the results of the Xray and told that this showed normal wear and tear on her back. She had understood that she was being placed on the waiting list for an MRI to investigate the cause of her pain, but it later became clear that this was not the case.

[8]The claimant had a background in journalism and had worked in what she described as “the robust environment” of various national newspapers. She had no previous medical history of anxiety. However, on 5 December 2022, she had a meeting with her manager at which, amongst other things, she was informed that she would be required to attend the office for two days a week. She sought assistance from her GP on 6 December 2022. The GP record of that consultation, and of some other consultations, has been redacted to remove information which the claimant considered irrelevant and the respondent raised no objection to this. The remaining record states that the claimant was signed off for 2 weeks with anxiety disorder and that she reported “getting lots of different symptoms feeling sick, mood up and down, feels heart racing, not sleeping very well” [R122].

[9]She saw the respondent’s occupational health (“OH”) advisers in January 2023 following her return from sickness absence. The report noted that she was awaiting diagnosis of her back condition but was reporting “intermittent levels of pain ranging from 0-7 on a pain score where 0 = no pain and 10= the most severe”. In relation to the claimant’s recent absence, the report noted that “the stress described appears to be a discrete episode reactive to workplace issues and addressing these issues is likely to bring the situation to a successful resolution and prevent further deterioration in emotional and physical wellbeing”. The claimant was assessed as fit for work with adjustments and the report stated that neither condition was likely to be considered a disability “because there is no long term significant impairment described”. The claimant submitted a flexible working request in February 2023 but this was refused in March 2023 and the claimant submitted an appeal.

[10]The claimant saw her GP again on 17 January and 3 April 2023 in relation to back pain. In January 2023, she was taking over the counter pain relief for her back pain [R123 and 124] but in April 2023, she was prescribed stronger pain relief [R124]. She was also referred to the Community Musculoskeletal Service for physio and assessment.

[11]The claimant saw her GP again on 14 March 2023 regarding a recurrence of anxiety symptoms, she is recorded as reporting a return to the anxiety that she had experienced in December 2022 with difficulty sleeping, heart palpitations and nausea. She was signed off with anxiety disorder between 14 March 2023 and 28 March 2023 and then again between 28 March 2023 and 18 April 2023. On her return to work the parties began discussing the possibility of mediation to resolve matters and, as an interim measure, the claimant was assigned an alternate line manager.

[12]On 26 April 2023, the claimant saw OH again following her return from sickness absence. By this point, the claimant was working under different line management on a temporary basis. The report records “there are no medical solutions to the work-related problems and ..if they are left unaddressed the consequence is likely to be one of deteriorating mental wellbeing and future absence”. In relation to her back, it noted that she was still awaiting diagnosis and that she described her back pain as slightly worse than it had been in January 2023. The OH assessment was again that neither condition was likely to be a disability. At the end of May 2023, the claimant submitted a grievance in relation to the conduct of her managers. That grievance was placed on hold pending other processes.

[13]The claimant continued to see her GP at intervals in relation to various matters in the period June to September and on a number of occasions was reporting back pain. In early June 2023, the claimant was informed of the outcome of her appeal against the refusal of her flexible working request which was that a trial arrangement would be proposed in which she would be expected to spend one day in the office and to use the office as a base for meetings on a second day. It was recommended that the parties undertake mediation.

[14]On 19 June 2023, the claimant was seen by OH again [R192]. The report records that the claimant considered her back pain to be “marginally worse” than at the April consultation. The claimant had been prescribed exercises to be completed 4-5 times a day and a referral for an MRI scan would be made if the exercises did not assist. The report records that “there are no medical solutions to the work related problems and it appears that these issues are worsening the symptoms relating to her back.” The report recorded that tension when in the office meant that her back symptoms were worse on those days. Various recommendations were made, including that the claimant be given “temporary flexibility for working from home whilst there are ongoing back issues and the trigger of stress attending the workplace whilst waiting for resolution of these matters, although the stress is unlikely to be the underlying cause of the back issues it is a trigger to worsening symptoms which will inhibit any recovery”. It also recommended she be accorded flexibility about start times when attending the office so that she could “avoid driving time of more than 25-30 minutes, sitting for longer periods will exacerbate symptoms”. The OH report did not express a view as to whether the conditions amounted to disabilities.

[15]The parties undertook mediation in August 2023. However, the claimant later withdrew her agreement to the “charter” that had been discussed to govern how she and her manager might work together. The claimant began cognitive behavioural therapy treatment for anxiety in September 2023 and continued to receive such treatment throughout the remaining period of her employment.

[16]On 14 December 2023, the claimant attended a meeting with HR at which she says she was told that she must come into the office two days a week. On 10 January 2024, she was signed off again with anxiety disorder. She described herself as “feeling very anxious, racing heart, unable to sleep, diarrhea”. It appears that on this occasion her GP offered her medication for anxiety but she did not wish to take this. She was signed off work due to anxiety disorder and remained signed off until her employment terminated on 19 May 2024. It was not until 30 October 2024, that she underwent an MRI scan which diagnosed her back impairment as mild lumbar spondylosis with facet joint arthrosis.

[17]The claimant in her witness statements and impact statement provided detail about the effects of her back impairment on her ability to carry out normal day-to-day activities. In the light of the evidence I found that from June 2022, the claimant’s back pain increased in severity and frequency. The claimant regularly experienced shooting pains in her leg and back. Back pain impacted her ability to carry out day to day activities and affected her mobility. Tasks such as getting into and out of her car, walking, carrying shopping, doing household tasks, such as cleaning, were more difficult or tiring than previously. She was no longer able to engage in other tasks such as gardening and DIY that she would previously have done. She also found sitting painful and had to take regular breaks to mobilise and adjust her position and she had to avoid certain types of chair. She recorded having had to stand during work meetings in November 2022, and in August and December 2023 because sitting was uncomfortable. Pain impacted her ability to sleep and this, in turn, impacted her memory, concentration and energy levels. Back pain impacted her working life. She found travelling into the office more difficult than previously because of discomfort from sitting in the car. She also found working at home easier because she could take breaks, mobilise and do her exercises. The claimant accepted that her back pain was rendered more manageable by performing her physio exercises and ensuring that she used an appropriate chair and moved around during the day.

[18]In her impact statement dated January 2025 the claimant described anxiety as having affected her “in the last two years” referring to her periods signed off sick and her attendance at talking therapies. She said that she no longer felt confident and avoided social activities. She recounted physical symptoms of anxiety (sleeplessness, stomach upsets racing heart, nausea). She stated that she had become fearful and afraid of conflict. Her statement is not clear about when these effects began and during what periods they were experienced. The specific examples given (her difficulties attending a funeral and her reactions on starting her new job) appeared to post-date the end of her employment. Law

[19]The Equality Act 2010 defines disability in the following way Section 6: A person (P) has a disability if –(1) P has a physical or mental impairment, and

(2) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities. S 212(1) "Substantial" means more than minor or trivial Schedule 1 2(1) The effect of an impairment is "long-term" if – (a) it has lasted 12 months, (b) it is likely to last at least 12 months, (c) or it is likely to last for the rest of the life of the person affected (2) 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. 5. (1)An impairment is to be treated as having a substantial adverse effect on the ability of a person to carry out normal day to day activities if – (a) measures are being taken to correct it and (b) but for that, it would be likely to have that effect (2 ) “measures” includes, in particular medical treatment …or other aid

[20]In deciding whether a person is disabled, Tribunals are required to have regard, in so far as relevant to the “Guidance on matters to be taken in to account in determining questions relating to the definition of disability” (the Guidance).

[21]At the start of the hearing I discussed with the parties the legal summary set out below. Both parties were content with that summary, though Mr. Milson indicated that he wished to refer to the case of Herry, a copy of which he had provided to the claimant:a. The burden of proving disability lies with the claimant. However, the statutory test should be given a purposive construction (Goodwin v Patent Office).

b. A substantial adverse effect is one that is “more than minor or trivial”.

c. When considering whether something is “likely”, the correct approach is to assess whether it “could well happen” (this is a lower hurdle than more likely than not).

d. A Tribunal must consider all 4 limbs of the statutory test set out below i. Did the claimant have a physical or mental impairment? ii. Did that impairment have an adverse effect on their ability to carry out normal day to day activities iii. Was that effect substantial ? (i.e. was it more than minor or trivial?) iv. Was that effect long term? (had it lasted more than 12 months, or was it likely to do so, or was it likely to be recur) However, those matters need not necessarily be considered in the order set out above. In some case it will be preferable to focus on the questions of whether there is a substantial and long-term adverse effect on day-to-day activities on the basis that if such an effect is established this is likely to indicate the existence of an impairment (J v DLA Piper

UKEAT/0263/09

)

e. When considering whether an impairment has been shown the focus should be on the effect of impairment rather than its cause (the Guidance A7) and a formal medical diagnosis is not required (Walker v Sita Information Networking Computing Ltd UKEAT /0097/12)

f. In the case of a mental impairment, relating to stress, anxiety or depression, there is helpful guidance in the case of J v DLA Piper, in which Underhill HJ stated "42. The first point concerns the legitimacy in principle of the kind of distinction made by the tribunal, as summarised at para 33(3) above, between two states of affairs which can produce broadly similar symptoms: those symptoms can be described in various ways, but we will be sufficiently understood if we refer 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 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 bound often to be very blurred in practice. But we are equally clear that it reflects a distinction which is routinely made by clinicians - it is implicit or explicit in the evidence of each of Dr Brener, Dr MacLeod and Dr Gill in this case - and which should in principle be recognised for the purposes of the Act. We accept that it may be a difficult distinction to apply in a particular case; and the difficulty can be exacerbated by the looseness with which some medical professionals, and most lay people, use such terms as "depression" ("clinical" or otherwise), "anxiety" and "stress". Fortunately, however, we would not expect those difficulties often to cause a real problem in the context of a claim under the Act. This is because of the long-term effect requirement. If, as we recommend at para 40(2) above, a tribunal starts by considering the adverse effect issue and finds that the claimant's ability to carry out normal day-to-day activities has been substantially impaired by symptoms characteristic of depression for 12 months or more, it would in most cases be likely to conclude that he or she was indeed suffering "clinical depression" rather than simply a reaction to adverse circumstances: it is a common sense observation that such reactions are not normally long-lived.

g. In the case of Herry v Dudley Metropolitan Council [2017] !CR 620 the comments made by Underhill HJ were endorsed by the EAT “55. This passage has, we believe, stood the test of time and proved of great assistance to Employment Tribunals. We would add one comment to it, directed in particular to diagnoses of "stress". In adding this comment we do not underestimate the extent to which work related issues can result in real mental impairment for many individuals, especially those who are susceptible to anxiety and depression. 56. Although reactions to adverse circumstances are indeed not normally long-lived, experience shows that there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day-to-day activities. A doctor may be more likely to refer to the presentation of such an entrenched position as stress than as anxiety or depression. An Employment Tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by an Employment Tribunal) are not of themselves mental impairments: they may simply reflect a person's character or personality. Any medical evidence in support of a diagnosis of mental impairment must of course be considered by an Employment Tribunal with great care; so must any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee's satisfaction; but in the end the question whether there is a mental impairment is one for the Employment Tribunal to assess”.

h. In considering whether normal day to day activities are adversely affected to a substantial degree it is helpful to have regard to section B of the Guidance. This confirms that any adverse effect need only be more than minor or trivial and adverse effects may include the time taken to do an activity or the way in which an activity is carried out. Section B also deals with the question of coping or avoidance strategies in the following terms B7. Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day-to-day activities When considering modification of behaviour, it would be reasonable to expect a person who has chronic back pain to avoid extreme activities such as skiing. It would not be reasonable to expect the person to give up, or modify, more normal activities that might exacerbate the symptoms; such as shopping, or using public transport. B9. Account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment, or avoids doing things because of a loss of energy and motivation. It would not be reasonable to conclude that a person who employed an avoidance strategy was not a disabled person. In determining a question as to whether a person meets the definition of disability it is important to consider the things that a person cannot do, or can only do with difficulty. B10. In some cases, people have coping or avoidance strategies which cease to work in certain circumstances (for example, where someone who has dyslexia is placed under stress). If it is possible that a person’s ability to manage the effects of an impairment will break down so that effects will sometimes still occur, this possibility must be taken into account when assessing the effects of the impairment. B12. The Act provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’. The practical effect of this provision is that the impairment should be treated as having the effect that it would have without the measures in question (Sch1, Para 5(1)). The Act states that the treatment or correction measures which are to be disregarded for these purposes include, in particular, medical treatment and the use of a prosthesis or other aid (Sch1, Para 5(2)). In this context, medical treatments would include treatments such as counselling, the need to follow a particular diet, and therapies, in addition to treatments with drugs. (See also paragraphs B7 and B16.) B13. This provision applies even if the measures result in the effects being completely under control or not at all apparent. Where treatment is continuing it may be having the effect of masking or ameliorating a disability so that it does not have a substantial adverse effect. If the final outcome of such treatment cannot be determined, or if it is known that removal of the medical treatment would result in either a relapse or a worsened condition, it would be reasonable to disregard the medical treatment in accordance with paragraph 5 of Schedule 1.

i. In considering whether there is a substantial adverse effect 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 Met Police Commissioner.

j. In considering whether it is likely that an adverse effect will be long term the Guidance states C4. 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).

k. The same approach must be adopted to the assessment of the likelihood of recurrence. The likelihood of recurrence must be assessed as at the date of the discriminatory act and no regard must be had to subsequent events McDougall v Richmond Adult Community College

[2008] IRLR 227

. What is likely to occur in the future has to be judged by reference to the facts and circumstances existing at the date of the events complained of. It requires the ET to make a prophecy from those facts and it would be an error of law to have regard to subsequent events.

l. Section D of the guidance deals with normal day to day activities D3. The Act does not define what is to be regarded as a ‘normal day to-day activity’. It is not possible to provide an exhaustive list of day to-day activities, although guidance on this matter is given here and illustrative examples of when it would, and would not, be reasonable to regard an impairment as having a substantial adverse effect on the ability to carry out normal day-to-day activities are shown in the Appendix. 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. Normal day-to-day activities can include general workrelated activities, and study and education related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or a shift pattern. Conclusions Physical Impairment

Conclusions

[22]I considered that the claimant was disabled by a physical impairment to her back, subsequently diagnosed as Mild Lumbar Spondylosis Facet Joint Arthritis, and that this impairment had a substantial and long-term adverse effect on her ability to carry out normal day to day activities from 17 January 2023. I reached that conclusion for the following reasons.a. Physical impairment: Although the precise nature of the claimant’s back condition was not diagnosed until the MRI in October 2024, a precise diagnosis or cause is not required. The claimant plainly had a physical impairment in relation to her back at the relevant time. She had been experiencing back pain since 2021 and that condition worsened from June 2002 onwards and remained present throughout the remainder of her employment.

b. Substantial adverse effect on normal day to day activities: Although the claimant reported having experienced back pain since 2021, I did not consider it likely that her back condition was having a substantial adverse effect on her ability to carry out normal day to day activities in the period 2021 to mid 2022. The claimant did not seek medical treatment for back issues in this period and it appears that although she had occasional episodes of pain these usually resolved quickly.

c. However, I considered that the impairment was having a more than minor or trivial impact on her ability to carry out normal day to day activities from June 2022 onwards, when she experienced back pain significant enough for her to seek medical treatment from her GP and to be referred for physio and an Xray.

d. I accepted the claimant’s evidence that as a result of her back pain her ability to carry out normal day-to-day activities had been affected to a substantial degree. She experienced discomfort sitting and had to stand or move around to relieve discomfort after being seated for too long and she gave a specific example of having had to stand during a workshop in November 2022, due to back pain. Back pain impacted her ability to carry tasks such as getting into and out of her car, walking, carrying shopping, and doing household tasks such as cleaning. These activities were more difficult or tiring than previously. Pain impacted her ability to sleep and this, in turn, impacted her memory, concentration and energy levels I considered that the claimant’s back pain worsened over time from June 2022 onwards and this is borne out by the comments noted in the OH reports and by the GP offer of stronger pain medication in April 2023.

e. Long term: However, I did not consider that, as at June 2022, it could be said that any substantial adverse effects of her condition were long term. The substantial adverse effects had not lasted for 12 months at that time nor was there evidence to suggest that it was likely (in the sense that it could well happen) that the substantial adverse effects of the claimant’s back impairment would last more than 12 months. or would be recurrent. The claimant’s evidence was that previous episodes of back pain had resolved fairly quickly. The Xray conducted in June 2022 showed nothing beyond normal wear and tear to the claimant’s back. There was nothing to suggest at that time that the adverse effects would not resolve.

f. However, I considered that by 17 January 2023, the substantial adverse effects of the claimant’s condition had become long term because they were by then likely to last 12 months (in the sense that such a result could well happen). By that point, the claimant’s impairment had been affecting her for 6 months and she had needed to seek further assistance from her GP on that date. Although her condition was still being fully investigated, it had not been resolved by the GP recommendations of stretching exercises and she was being referred for further treatment and investigation. There was nothing to suggest that her condition was likely to resolve in the next few months. Indeed, the claimant reported to OH in January 2023 that the condition was worsening rather than improving. I therefore considered that the facts and circumstances in January 2023 were such that, if one had asked whether it “could well happen” that her back impairment would continue to cause substantial adverse effects on her ability to carry out normal day to day activity, for a further 6 months the answer to that question would have been yes.

[23]In submissions, Mr. Milson suggested that the only adverse effects reported by the claimant were an inability to sit for 8 hours a day and that this was not a normal day-to-day activity. I did not consider that this fairly reflected the claimant’s evidence regarding the impact of her back impairment. I found that there were substantial adverse effects on normal day to day activities in a number of respects. Mr. Milsom also contended that what he described as “reasonable coping strategies”, engaging in physiotherapy and using an ergonomic chair, meant that the adverse impacts of the claimant’s impairment rendered the effects no longer substantial. I did not consider that was correct. In the first place, I have found that the claimant continued to experience substantial adverse effects in January 2023 despite the GPS’s recommended stretching exercises and despite using an appropriate desk chair. Pain meant that she needed to stand and change position and that she had to conduct some meetings standing. Later in 2023, she was prescribed a more detailed regime of physiotherapeutic exercises. I considered that performing an exercise regime of that sort went beyond what could be described as a reasonable coping strategy. The advice to the claimant was that she should perform stretching exercises five times a day and that these were likely to take around twenty minutes. This goes beyond the sort of reasonable coping strategy that most people who engage in sedentary work might be expected to adopt, e.g. following a DSE assessment, that they should stand briefly from time to time during the working day to avoid developing RSI or back pain. Mental impairment

[24]The claimant’s son invited me to find that the claimant was disabled by anxiety and that she had been so since December 2022 when she was first signed off with anxiety by her GP. Mr. Milsom suggested that the claimant could not establish that she was disabled at that date. It would be inappropriate to draw such a conclusion from a single period of absence. He also argued that the claimant’s case was on all fours with that of Herry, and that the claimant had an issue with working for a particular manager rather than a mental impairment. He placed reliance on the fact that the claimant had been able to find other work shortly after her employment with the respondent ended as confirming that this was a reaction to a workplace issue rather than a mental impairment. He noted that, if one did not opt for December 2022 as the relevant date from which the claimant was to be viewed as disabled, it was difficult to discern from the evidence what alternate date could be applicable.

[25]I considered that the claimant was disabled by the mental impairment of anxiety from 10 January 2024 when she was signed off by her GP for the third time. In reaching that conclusion, I have followed the approach suggested in J v DLA Piper and begun by considering the question of whether substantial adverse effects on normal day to day activities were present and on the duration of those effects, on the basis that the answer to those points will establish whether, and when, a mental impairment was present.a. The claimant began to experience symptoms of anxiety in December 2022 and was signed off for two weeks. That occurred following a difficult discussion about her future working arrangements. The claimant returned to work in January and continued to work without incident until 28 March 2023 when she was signed off again, this time for a longer period (some 5 weeks) returning to work in mid-April 2023. I concluded that the claimant experienced substantial adverse effects from anxiety during the periods in which she was signed off work but that those effects were intermittent. Whilst the claimant had, by the end of April 2023, experienced two periods of sickness absence related to anxiety, the OH assessment in April and June 2023 was that addressing concerns in relation to workplace issues was likely to lead to an improvement of symptoms. In April 2023, the claimant had been assigned a different line manager on a temporary basis. In the period May to August 2023, the parties were engaged in discussions and processes that might have resolved matters (the appeal in relation to the flexible working request and the mediation) and the claimant remained at work throughout this period.

b. In September 2023, the claimant began treatment with talking therapies. However, she remained at work while undergoing therapy and did not attend her GP to seek further support with anxiety again until January 2024. At that point her condition worsened and I found that she was once again experiencing substantial adverse effects of anxiety. The claimant was offered medication for anxiety for the first time on this occasion although she declined it. She was then signed off as unfit to work in successive fit notes between 9 January 2024 until her employment terminated on 19 May 2024.

c. I considered that the initial period of sickness absence in December 2022 could be described as a transient response to adverse life events. However, I did not consider that, more generally, the claimant’s case was of the sort described at paragraph 56 of the judgment in Herry (see above), where the only adverse effects appear to be an unwillingness to return to work due to an entrenched sense of grievance. As the cases that I have cited make clear, and as the OH reports provided to the respondent confirmed, workplace disputes can lead to mental impairments. I considered that this is what had occurred in the claimant’s case.

d. I consider that the claimant developed anxiety to a degree that it adversely affected her ability to carry out normal day to day activities to a substantial (more than minor or trivial) degree. She was off work with anxiety on three occasions (the longest absence being that from January 2024 onwards until the end of her employment) and the fact that she was signed off as unfit to work is indicative that she was significantly affected by anxiety during those periods. Additionally, I considered that anxiety had substantially adversely affected the claimant’s ability to carry out other normal day to day activities. Her confidence in her abilities had been undermined, she became reluctant to socialise in the way that she had previously done, and she has experienced disrupted sleep and other physical symptoms, (racing heart, nausea etc.) as reported to her GP and the OH adviser. I considered that these effects were substantial adverse effects on her ability to carry out normal day to day activities, including attending work, socialising, getting proper rest etc.

e. However, the question is when those substantial adverse effects began and at what point they became long term. I did not agree with the claimant’s case that she had become disabled in December 2022. Whilst I accepted that the claimant may have experienced substantial adverse effects as a result of anxiety during periods when she was signed off work, I did not consider that there was any evidence to suggest either in December 2022 or in January or March/April 2023 there was reason to think that the substantial adverse effects were likely to be long term, to last 12 months or to be a recurrent condition. The claimant had no previous history of anxiety and had previously worked in demanding environments. Although she had periods of anxiety-related absence she made a return to work on both occasions. During this period there was also some reason to hope that the parties might agree a resolution to the workplace issues through either the flexible working request process or the mediation process.

f. I noted that subsequently the claimant had undergone talking therapy and that I had to consider what the effects of anxiety would have been without that therapy. However, the claimant’s evidence was unclear about when she had experienced adverse effects from anxiety and what difference the talking therapy had made. I did not therefore consider that the claimant had established that any substantial adverse effects of anxiety were likely to be long term during 2023.

g. However, I considered that, in January 2024, when the claimant was signed off again for the third time, it then became likely that the substantial adverse effects of anxiety would be long term. January 2024 was the third occasion when the claimant had been signed off with anxiety, support through talking therapy over several months had not resolved matters and the claimant was being offered medication to support her mental health, the December 2023 meeting had reopened the workplace issues between the parties and the previous OH advice was that the claimant’s mental health was unlikely to improve whilst such issues remained unresolved. All of these matters suggested that the claimant’s anxiety was now likely (in the sense that this could well happen) to be a condition the substantial adverse effects of which could well last 12 months or, failing that, a condition which could well recur with substantial adverse effects on her ability to carry out normal day-to-day activities. Approved By