Dr S Zahertar v University of Southampton and Dr D Holmes: 6010790/2024

EMPLOYMENT TRIBUNALS

Case No 6010790/2024

Between

Dr S ZahertarClaimant

University of Southampton (1) Dr D Holmes (2) RECORD OF A PRELIMINARY HEARINGRespondent

Before

Employment Judge Dawson

In person for claimant

Mr Wayman (instructed by Counsel) for respondent

Date 11 February 2026

JUDGMENT

[1]The claimant was disabled by reason of depression and anxiety from (and including) 3 November 2023, but not before.

[2]Any claim of disability discrimination (including any claim under sections 13, 15, 21 and 26 Equality Act 2010) in respect of a cause of action which arose before 3 November 2023 is dismissed.

REASONS

[1]By a claim form presented on 5 September 2024 the claimant brought the following complaints;a. Unfair dismissal;

b. Discrimination on the grounds of disability, race and sex

c. Victimisation

The Issues

[2]The matter was listed for a hearing to determine whether at all times material to the claim the claimant was disabled by reason of anxiety and depression within the meaning of s.6 and Schedule 1 of the Equality Act 2010.

[3]At the outset of the hearing, Mr Wayman confirmed that whilst he accepted that the claimant had a mental impairment, he did not accept that its effect was substantial or that it was long-term at the material times. Conduct of the Hearing Reasonable Adjustments

[4]The claimant confirmed that she may need time to consider matters and I invited her to let me know if she needed a break.

The evidence

[5]I was provided with a bundle running to 193 (PDF) pages which included a disability impact statement at page 128 and a reply to the respondent’s position on disability at page 165. Except where otherwise stated, references to page numbers in this judgment are to the hearing bundle.

[6]I heard evidence from the claimant and she was cross-examined. The Law Approach To Evidence

The Law

[7]In Gestmin SGPS SA v Credit Suisse (UK) Ltd, Leggatt J gave the following helpful guidance Evidence Based on Recollection [16] While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people's memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose:(1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and

(2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate. [17] Underlying both these errors is a faulty model of memory as a mental record which is fixed at the time of experience of an event and then fades (more or less slowly) over time. In fact, psychological research has demonstrated that memories are fluid and malleable, being constantly rewritten whenever they are retrieved. This is true even of socalled 'flashbulb' memories, that is memories of experiencing or learning of a particularly shocking or traumatic event. (The very description 'flashbulb' memory is in fact misleading, reflecting as it does the misconception that memory operates like a camera or other device that makes a fixed record of an experience.) External information can intrude into a witness's memory, as can his or her own thoughts and beliefs, and both can cause dramatic changes in recollection. Events can come to be recalled as memories which did not happen at all or which happened to someone else (referred to in the literature as a failure of source memory) … [22] In the light of these considerations, the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on witnesses' recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. ... Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.

[8]I have approached the evidence in that way, whilst bearing in mind that in an employment context it is likely there are less documents than there would be in a commercial case. The law on the Definition of Disability

[9]Disability is defined in section 6 of the Equality Act 2010. A person has a disability if they have a physical or mental impairment and that impairment has a substantial and long-term adverse effect on their ability to carry out day-today activities.

[10]“Substantial” means more than minor or trivial (section 212 (1) Equality Act 2010)

[11]Paragraph 2 of Schedule 1 Equality Act 2010 provides:(1) The effect of an impairment is long-term if— (a) it has lasted for at least 12 months, (b) it is likely to last for at least 12 months, or (c) 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.

[12]Paragraph 5 of Schedule 1 Equality Act 2010 provides:(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if— (a) measures are being taken to treat or correct it, and (b) but for that, it would be likely to have that effect.

(2) “Measures” includes, in particular, medical treatment and the use of a prosthesis or other aid.

[13]In Aderemi v London and South Eastern Railway

[2013] ICR 591

, Langstaff P stated “It is clear first from the definition in section 6(1)(b) of the Equality Act 2010, that what a Tribunal has to consider is an adverse effect, and that it is an adverse effect not upon his carrying out normal day-to-day activities but upon his ability to do so. Because the effect is adverse, the focus of a Tribunal must necessarily be upon that which a Claimant maintains he cannot do as a result of his physical or mental impairment. Once he has established that there is an effect, that it is adverse, that it is an effect upon his ability, that is to carry out normal day-to-day activities, a Tribunal has then to assess whether that is or is not substantial. Here, however, it has to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading “trivial” or “insubstantial”, it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other'. (paragraph 14)

[14]In All Answers Ltd v W and another

[2021] IRLR 612

, the Court of Appeal held: Paragraph 2(1)(b) of Sch 1 to the 2010 Act defines long term, so far as material to this case, as 'likely to last at least 12 months'. 'Likely' in this context means 'could well happen': see Boyle v SCA Packaging Ltd

[2009] ICR 1056

, per Lord Hope at para [4], and Lord Rodger at para [42], Baroness Hale at paras [70]–[72] (with whom Lord Neuberger agreed at para [81]), Lord Brown at para [77]. 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 of the alleged discrimination to determine whether the effect did (or did not) last for 12 months.

Findings of Fact

[15]The claimant’s evidence in chief consisted of her confirming the truth of her disability impact statement and the document at page 165.

[16]The earliest allegation which the claimant makes of discrimination is 14 July 2023, when she says that she felt bullied and harassed in a meeting with Dr Holmes. In her claim form (page 31) she has set out a chronology. In it, she states that on the evening of 31 July 2023, she could not sleep due to the anxiety she had experienced as a result of an email sent to her that night. She then discusses events which occurred on 1 August 2023 and states “back at home, I experienced another mental breakdown and a panic attack. I could not sleep that night either”. In her evidence she stated that when she referred to a mental breakdown, she meant that she had started to cry without being able to control herself, she was shaking and she had a racing heart. She agreed that the 31 July 2023 was the first mention in the claim form of having issues with sleep. Whilst it would be inappropriate for me to make any findings about what happened on 14 July 2023 or thereafter, I accept that the claimant was upset and was unable to sleep on the evening of 31 July 2023 and 1 August 2023. I accept that her level of upset was such that she was crying, shaking and her heart was racing.

[17]The claimant took the second half of 1 August 2023 as sick leave and went home. She returned to work in on 2 August 2023 and she describes, in her claim form a number of discussions and meetings she had with colleagues. Her evidence, which I accept, was that she might not have been crying at meetings on 2 and 3 August but that did not mean that she was not anxious.

[18]On 3 August 2023, the claimant went to her GP. I find, having regard to the medical records, that the purpose of the visit was because she had an intermittent dry cough. The GP records statement “well in herself” but also contain the statement “feeling more anxious recently work – thinking about having some time off, advised we would support this.” The claimant told me that she went to the doctor for her breathing to be checked and at the consultation the doctor raised the question of whether the cough might be due to stress. She agreed with counsel, and I accept, that she did not see the doctor because of a mental breakdown (using her term) or anxiety and that it came up during the session. There was a dispute in the hearing about whether the GP recommended that the claimant take sick leave or the claimant raised it. I find it is most likely that the GP notes are accurate and the claimant initially stated that she was thinking about having some time off work and the GP stated that the practice would support that. The claimant was not signed off work at that time and accepts that she went into work, but she says that was because her manager was pushing her and she had other meetings in respect of an application which was in process. I accept that evidence as being accurate but it is clear that the claimant could attend work and could function at work.

[19]In cross-examination the claimant accepted that she did not get a diagnosis (such as anxiety or depression) on 3 August 2023 but says that because her GP asked her to self-refer herself for counselling (and sent her a text to that effect) she should be treated as having a diagnosis.

[20]It is apparent from the medical notes that the doctor did send the claimant a link for the “steps2wellbeing” talking therapies website and I find accordingly. However, it is not suggested that it is necessary for a person to have a medical diagnosis to access that service. I find that the claimant continued to attend work at that time and did so because of her position on a fixed term contract and feeling under some pressure to do so.

[21]The next entry in the GP records is on 15 August 2023 when the claimant consulted the mental health nurse by telephone. She informed the doctor that she weighed 43 kg and that she had lost weight. She told the nurse that she thought that time off may help to manage her symptoms, that her mood was low and that she could not sleep at night. Her mind was racing and she felt tired and was having panic attacks and was overthinking. The GP provided details of counselling options as well as contact details for SARC (a charity offering advice and representation for welfare and employment related matters) (page 136).

[22]On 18 August 2023 the claimant was signed off work until 8 September 2023 (page 131).

[23]On 31 August 2023, according to the medical notes, the claimant was scored under the PHQ and GAD tests, both entries state that the severity was minor (page134). In the meantime, on 23 August 2023, the claimant had accessed Steps to Wellbeing which recorded that the claimant’s scores (being the same ones as were entered in the GP records) showed depression symptoms in the moderate to severe range and anxiety and worry symptoms in the severe range. The letter from Steps to Wellbeing (page 107) stated that the claimant’s symptoms would be monitored through the course of treatment. The treatment offered was the First Steps educational orientation session and the Journey to Well-being webinar which is based on CBT. The course was of six sessions.

[24]On 7 September 2023, the claimant was signed off work until 30 September 2023. I accept that she had attended her GP the same day and been prescribed propranolol medication for her racing heart.

[25]The claimant agrees that she came back to work on around 3 October 2023 at which point Mr Holmes had been removed as her line manager. That is significant because the allegations the claimant makes arise out of Mr Holmes being her line manager. She confirmed in her evidence, and I accept, that her stress and anxiety was because of the way Mr Holmes had treated her. It was put to the claimant that when she returned to work in October 2023 there was no reason for her to believe that the issues would continue but she stated that she was still in limbo because of the situation in respect of her contract (which was a fixed term contract) and because she was not sure what would be happening in a couple of months time. I accept that evidence.

[26]The claimant contacted her general practitioner next on 3 November 2023 when she stated that she was having ongoing mental health issues, she had tried counselling and CBT sessions and was reluctant to try SSRIs. Sleep was disrupted, she was tearful and had low energy and motivation. She found it hard to stay focused in work. It was agreed that she would be given sertraline.

[27]On 8 November 2023, Steps to Wellbeing wrote to the claimant stating that the course was concluded and that her PHQ score had increased from 19 on 23 August 2023 to 23 on 7 November 2023. The claimant’s GAD scores had remained the same at 20. I find accordingly.

[28]A review took place with Steps to Wellbeing on 30 November 2023, which concluded with an agreement that the claimant would start individual CBT sessions, she would be put on a waiting list for that to happen (page 113)

[29]The claimant’s disability impact statement describes that from August 2023 onwards she had had difficulty falling and staying asleep with frequent waking, she had reduced focus and slower processing. She describes being overwhelmed by simple planning. That is consistent with the medical notes for 15 August 2023 which describe her as having low energy levels and low concentration. I accept that evidence.

Conclusions

[30]It is not in dispute that from 3 August 2023 onwards the claimant had a mental impairment.

[31]The next question is whether that impairment had a substantial adverse effect on her day-to-day activities.

[32]The Guidance on the Definition of Disability has an appendix which sets out illustrative and non-exhaustive factors which might be regarded as a substantial adverse effect on normal day-to-day activities (and ones which would not be so regarded). An example of something which it would be reasonable to regard as having a substantial adverse effect on normal day-to-day activities is persistent distractibility or difficulty concentrating. An example of something which it would not be reasonable to regard as having a substantial adverse effect on day-today activities would be occasionally forgetting the name of a familiar person or inability to concentrate on a task requiring application over several hours.

[33]Although I do not consider the effect of the claimant’s impairment on her o dayto-day activities to be very significant, I do accept that as a result of the anxiety which she was suffering, she was finding it difficult to sleep and was finding it difficult to concentrate. To some extent that is a normal reaction to stress that most people would have. It might be the case that many people would struggle to see that as a disability, nevertheless, the claimant’s racing heart symptoms were sufficient for her to be prescribed medication and I must apply the legal test which is whether the effect on day-to-day activities was more than minor or trivial.

[34]I have concluded that the effect on day-to-day activities was more than minor or trivial and that was the case from 3 August 2023 onwards.

[35]I understood the claimant at times during her cross examination to suggest that the effect on day-to-day activities was from 14 July 2023, being the date of the initial allegation towards her line manager. The difficulty is that the claimant’s own impact statement states “throughout August 2023 onwards, my condition had had substantial adverse effects (more than minor or trivial) on ordinary activities” (page 128). The same point is made in her reply to the respondent’s disability position document where she states “… Adverse effects on sleep, concentration, decision-making and sustaining normal routines from August 2023 onwards” (page 165). Given those statements by the claimant, I am not able to find that if she had an impairment before August 2023, that impairment had a substantial adverse effect on her day-to-day activities.

[36]The more difficult question is whether, at any given point, the substantial adverse effect on day-to-day activities was likely to last for more than 12 months. I must consider that question by reference to the test of whether it could well happen that the symptoms would have lasted more than 12 months.

[37]The evidence in this case does not support a finding that as soon as the claimant started to experience an adverse effect on her day-to-day activities, it can be said that it could well happen that the adverse effects would last for 12 months or more. There is no suggestion to that effect in the medical records and to the extent that the claimant’s symptoms were related to stress at work, the respondent was taking some steps to deal with those by removing Mr Holmes as her line manager.

[38]Although it was possible that the adverse effects could have lasted for 12 months, I do not consider that is the same as saying it “could well happen” that they would. I accept Mr Wayman submission that there must be an evidential basis for concluding that the effects could well last for 12 months or more. The evidence is that, at that stage, the claimant had attended her general practitioner because of a cough. Although anxiety was discussed, it does not appear that the general practitioner was regarding the matter as being more than a relatively minor issue and it was hoped that issues could be resolved by way of talking therapies.

[39]I find that was the position until 3 November 2023. In my judgment matters changed around then. The GP entry shows that the claimant was not getting better and shortly after that, on 7 November 2023, the claimant’s PHQ score had increased despite the therapies that the claimant had been receiving. I find that at that point, because the claimant’s position was not improving despite the fact that she had received recommended treatment, it could well happen that the adverse effect on day-to-day activities could last for 12 months or more.

[40]I am, therefore, satisfied on the balance of probabilities, that from 3 November 2023 the claimant had an impairment which had a substantial adverse effect on her day-to-day activities which was likely to last at least 12 months. From that date she satisfied the definition of disability and was disabled within the meaning of the Equality Act 2010. She was not disabled before that date.