Ms C Carter v Mid and East Lothian Drugs SCIO: 8000356/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8000356/2025Venue Edinburgh remotely by Cloud Video PlatformHearing 1 July 2025
Between
Ms C CarterClaimantMid and East Lothian Drugs SCIORespondent
Before
Employment Judge A KempMr C McDevitt (instructed by Barrister) for respondentInstructed by for respondentMs R Dawe for respondentTrainee Solicitor for respondentDate 8 July 2025
JUDGMENT
The claimant was a disabled person under section 6 of the Equality Act 2010, from 4 October 2016 at all material times for the purposes of the Claim.
REASONS
[1]This was a Preliminary Hearing held remotely, and had been fixed in part to determine whether or not the claimant was a disabled person as defined by section 6 of the Equality Act 2010 (“the Act”)[2]There have been earlier Preliminary Hearings on 7 April 2025 and 29 May 2025. After the latter of those the present hearing was fixed. The hearing also addressed matters of amendment and case management, and they are addressed by a Note issued of even date. Issue[3]The issue to determine was whether or not the claimant was a disabled person at the relevant time in terms of section 6 of the Equality Act 2010. Evidence[4]I heard evidence only from the claimant. There were documents that the parties had prepared in a single Bundle prepared for this hearing, not all of which were spoken to. The claimant read out the terms of a Disability Impact Statement that had been prepared, and a supplementary witness statement presented on 30 June 2025, the day before the hearing, was taken as if read by her, which I discuss below. The claimant was asked questions in examination in chief, in cross examination and briefly in re-examination. Facts[5]I found the following facts, material to the issue, to have been established: Parties[6]The claimant is Ms Christina Carter.[7]The respondent is Mid and East Lothian Drugs, a Scottish Incorporated Charitable Organisation.[8]The claimant was employed by the respondent from 3 April 2023 as a Recovery Worker.
Background
[9]Whilst a child the claimant suffered from abuse at the hands of her parents and others. The abuse was physical, mental and emotional. She spent periods of her childhood in a care home.[10]She attempted suicide at the ages of 14 and 23 (she is now 49). She has also suffered a stillbirth, on or around 19 September 1996.[11]In or around September 2018 a tenant where she worked had died in distressing circumstances for her. Medical conditions[12]The claimant was diagnosed as suffering from Post Traumatic Stress Disorder, which has also been described by medical practitioners assessing her as Complex Post Traumatic Stress Disorder (CPTSD), in 1997 and from depression in 2011. She suffers from anxiety, and that was referred to in a consultation with her GP on 4 September 2018. It has continued since that time, and had been in existence before that date.[13]The claimant suffered low back pain from the early months of 2021. That year she had a dispute with her brother, who lived with her for a period, and was informed that her mother had died. In March 2022 she required her brother to leave her property, and she consulted her GP at the end of that month in relation to stress from that matter and a Tribunal claim against a former employer. In September 2022 she was informed that her father had died and she had a house move, with money worries. She consulted her GP that month. She was exhausted, and signed off work for 2 weeks. Treatment[14]The claimant has been under medical care from her GP and others for the said conditions since at least 2011.[15]The claimant attended her GP on various occasions in the years prior to her commencing employment with the respondent. On a number of occasions reference was made to her mental health, and the possibility of treatment for that. She has on a number of occasions been referred for and attended trauma focussed counselling and psychological therapy with one such appointment on 17 November 2022 and another on 18 August 2023. She has received anti-depressant medication on occasion. The medication the claimant was prescribed included Seroxat which caused her side-effects, including suicidal ideation, such that she seeks to avoid using medication.[16]In the year she commenced employment with the respondent she attended her GP on 2 February 2023 to discuss cramps and to raise concerns over hypervigilance. She had a further consultation on 14 March 2023 in relation to lower back pain.[17]The first attendance with her GP after starting work with the respondent was on 15 September 2023 on matters not related to her mental health.[18]On 9 January 2024 there was a further consultation relating to mechanical lower back pain, for which she had been absent from work for six days.[19]On 22 February 2024 a further consultation took place. It followed the end of Tribunal proceedings against a former employer that had concluded the following week. The claimant reported depression, anxiety and stress, and a state of overwhelming burnout. She also reported exhaustion, oversleeping and low mood, with poor appetite for a week. She sought a fit note for work.[20]A further consultation took place on 5 March 2024 with ongoing stress reported and her view that she was not ready to go back to work.[21]On 26 July 2024 the claimant consulted her GP requesting a fit note and stating that her anxiety and depression symptoms were worse. She stated that she was seeing a psychologist and a work support group.[22]That was the final consultation before the termination of her employment. Impairments[23]The following impairments continued throughout her employment with the respondent. The claimant experienced a constant state of hypervigilance. It made her feel on edge and unsafe. She struggled to leave her house because of overwhelming anxiety. When she did leave the house she did so as quickly as possible.[24]She was afraid of slipping in the shower, and basic personal care was a challenge for her.[25]She slept poorly, often two to three hours per night, which affected concentration. Her poor sleep was exacerbated by nightmares, and flashbacks. She suffered from low mood. She had a low level of energy which made eating healthily or spending time with others difficult for her.[26]She struggled to concentrate, including at work with the respondent, and to interact effectively with others. The difficulty in interaction with others both at work and outside work was caused in part by her lack of trust in others, particularly in medical professionals. Dismissal[27]The respondent terminated the claimant’s employment on 6 September 2024. Claimant’s submission[28]In very brief summary Mr Hussain argued that the claimant met the definition within section 6 and Schedule 1 to the Act. He argued that the claimant had CPTSD and depression. He argued also that the claimant suffered mental impairments of anxiety. A number of authorities were referred to in the written document provided earlier and the oral submission. Respondent’s submission[29]Again in very brief summary Mr McDevitt argued that the claimant did not meet the statutory definition. The issues raised in the GP records during employment with the respondent were all linked to life events. All were explicable as such. The claimant had not proved impairment with an adverse effect on her day to day activities. The details after dismissal could not be considered as they were outwith the material period. The question was whether they were likely to last as at dismissal. The statutory test had not been met. The written argument that had been produced had also made reference to authority. Law[30]Disability is one of the protected characteristics provided for by section 4 of the Equality Act 2010 (“the Act”). Section 6 of the Act defines disability as follows: “(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. (2) A reference to a disabled person is a reference to a person who has a disability.”[31]“Substantial” means more than minor or trivial under Section 212(1) of the Act.[32]Further provisions are set out at Schedule 1 of the Act, which includes that “2. Long term effects (1) The effect of an impairment is long term if (a) It has lasted for at least 12 months….. 5 Effect of medical treatment (i) 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…….[33]The Act implements a number of EU Directives and is to be construed purposively, an obligation which remained as retained law under sections 2 – 4 of the European Union (Withdrawal) Act 2018, and later as assimilated law under the Retained EU Law (Revocation and Reform) Act 2023. The European Framework Directive (2000/78/EC), Article 1 states: “The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.”[34]Disability is not defined in that Directive. It was held by the European Court of Justice in Chacón Navas v Eurest Colectividades SA: C-13/05, [2006] IRLR 706 that the word “disability” was to cover those who have a “limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life”.[35]In 2009 the European Union approved the UN Convention on the Rights of Persons with Disabilities. The Convention provides, in recital (e), that “disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others”.[36]The Directive must be interpreted in a manner consistent with the Convention: H K Danmark acting on behalf of Ring v Dansk almennyttight Boligselskab C-335/11 [2013] IRLR 571, Z v A Department: C-363/12, [2014] IRLR 563, and Milkova v Izpalnitelen director na Agentsiata za privatizatsai I sledprivatizatsioen control: C406/15, ECLI:EU:C:2017:198, [2017] IRLR 566).[37]The Equality Act 2010 may be interpreted taking into effect the Convention indirectly, but the Convention does not have direct effect – Britliff v Birmingham City Council [2020] ICR 653.[38]In Goodwin v Patent Office [1999] IRLR 4 the Employment Appeal Tribunal held that in cases where disability status is disputed, there are four essential questions which a Tribunal should consider separately and, where appropriate, sequentially. These are:a. Does the person have a physical or mental impairment?b. Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?c. Is that effect substantial?d. Is that effect long-term?[39]The burden of proof is on a claimant to show that she satisfies the statutory definition of disability.[40]The term “impairment” is not defined in the Act. In Rugamer v Sony Music Entertainment UK Ltd and another 2002 [ICR] 381 the EAT referred to “some damage, defect, disorder or disease compared with a person having a full set of physical and mental equipment in normal condition.” In McNicol v Balfour Beatty Rail Maintenance Ltd [2002] ICR 1498 the Court of Appeal held that the term bears its ordinary and natural meaning.[41]As for what is relevant to the determination of this question, a broad view is to be taken of the symptoms and consequences of the disability as they appeared during the material period, Cruickshank v VAW Motorcast Ltd [2002] IRLR 24 which also held that the Tribunal must determine disability status as at the date of the act.[42]What are normal day to day activities has also been considered in authority. The Court of Appeal in Chief Constable of Norfolk v Coffey [2019] IRLR 805 approved the approach of the EAT in that case, that “the phrase ‘normal day to day activities’ should be given an interpretation which encompasses the activities which are relevant to participation in professional life”. Underhill LJ preferred the term ‘working life’ rather than 'professional life'.[43]In Ahmed v Metroline Travel Ltd UKEAT/0400/10 the EAT cautioned against carrying out a balancing exercise between what a person can and cannot do. It quoted from Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19, in which the EAT stated: “Whilst it is essential that a Tribunal considers matters in the round and makes an overall assessment of whether the adverse effect of an impairment on an activity or a capacity is substantial, it has to bear in mind that it must concentrate on what the Applicant cannot do or can only do with difficulty rather than on the things that they can do. This focus of the Act avoids the danger of a Tribunal concluding that as there are still many things that an applicant can do the adverse effect cannot be substantial.”[44]The assessment required is to determine what the person cannot do, or only do with difficulty, then assess that against the statutory test. That was also the finding of the EAT in Aderemi v London and South Eastern Railway Ltd [2013] ICR 591, in which it stated the following as to the meaning of “substantial”: “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.”[45]The EAT made clear in City Facilities Management (UK) Ltd v Ling UKEAT/0396/13 that evidence from the claimant alone may normally be sufficient.[46]Guidance on Matters to be taken into Account in Determining Questions Relating to the Definition of Disability (2011) provides guidance on the matters which are to be taken into account (account of which may be taken under Schedule 1 to the Act, paragraph 12) and The Equality and Human Rights Commission Code of Practice: Employment which also has guidance on the question of disability status, at paragraphs 2.8 – 2.20 and Appendix 1. Account may be taken of it where it appears to be relevant under section 15(4) of the Equality Act 2006.
Discussion
[47]I consider that the claimant was a credible and generally a reliable witness, with a qualification I shall come to. She answered questions candidly where she could, particularly in cross examination. I considered that her position was generally consistent with the documentation to which I was referred, including the medical records. She was upset on a number of occasions when giving evidence. I considered that her upset was entirely genuine, and was not in any sense an exaggeration or similar.[48]I had concerns however with the detail of some of the evidence she gave. What the effect was on day to day activities was not very clearly set out in the disability impact statement or in the oral evidence. Which day to day activities were effected, how, when and why was not set out in the detail that might be expected.[49]I was also concerned at the supplementary witness statement. Firstly it had not been ordered at the second Preliminary Hearing. Secondly it sought it stated to address the issue of amendment. That is a separate matter to that of disability status. Thirdly it was somewhat self-serving in relation to why the amendment should be allowed, and went beyond matters of fact. But the claimant was allowed to include it and it was taken as if read by her, and there was no objection to that from Mr McDevitt. I have taken it into account to the extent that I consider appropriate for the issue of disability status, but in doing so some aspects of it in relation to the issue of amendment I consider to be somewhat of an exaggeration, and not entirely reliable, which I have also taken into account in assessing disability status. It appears to me that some of what is stated as the reason for the Claim Form being in the terms that it was is not reliable, and does not have support from the medical records that were before me, nor was there any medical report or similar directly to support it.[50]In cross examination a number of entries related to low back pain and other matters were raised. The claimant had not made any claim in relation to a physical impairment, but the overall point being made related to the kind of stress normal life events can be expected to involve. There were also questions on the impact of an earlier Tribunal Claim that the claimant pursued, and exacerbated her symptoms. She accepted that such matters did occur, but also gave evidence that, as she put it “I had more on my plate at the time”. I took that to mean that the issue was not the only matter affecting her mental health at the time. I consider that evidence to be credible and reliable.[51]In her disability impact statement the claimant appeared to argue that as she had CPTSD and depression, with anxiety, that she was a disabled person under the Act. That is not the case. Those conditions are not ones that automatically mean that the person is disabled. They are part of the background, but whether or not someone is disabled with those conditions depends on whether the statutory tests in section 6 and Schedule 1 are satisfied. The claimant did refer to the extent of adverse impact, but at times did so rather by assertion as a matter of generality than detail. I have taken that into account.[52]The onus falls on the claimant to satisfy the Tribunal. It appears to me to be appropriate to take each of the questions raised in Goodwin in turn as a basis for the assessment: Does the person have a physical or mental impairment?[53]I consider that the does, and did so during the period of her employment. The primary conditions are CPTSD and depression, which are mental impairments. She also suffers from anxiety, to a material extent.[54]The respondent argued in brief summary that there could not be disability status where there was stress through reaction to adverse circumstances. Support for that as a matter of principle is found in Igweike where it was held that a natural reaction to adverse life events such as grief at a bereavement does not necessarily involve an impairment. I did not accept the respondent’s argument, however.[55]Firstly it is not an absolute rule that matters such as anxiety cannot be an impairment. There requires to be evidence of the impairment beyond simply being stressed or suffering grief or having periods of time off work, but here there is that. Secondly, the decision on whether or not there has been an impairment is made on the basis of the evidence, and the facts and circumstances of that case and the present one are very different. Here there was evidence I accepted of CPTSD from childhood abuse, with a diagnosis within the medical records, and treatment from specialists including therapy and mediation. Similarly the records refer to depression and anxiety, and medication and treatment is provided in an attempt to improve them. The evidence I heard is not in my opinion the same as the kind of normal reaction to a life event as, for example, those referred to in cross examination such as the death of her parents being reported to her, or her brother being asked to leave her home, a move of house or money worries.[56]In some respects at least her reaction appeared to me to be materially greater than would normally be expected, for example her position reported to her GP after the conclusion of the earlier Tribunal proceedings.[57]Taking all of the evidence I heard into account, including the manner in which she gave it to me, I concluded that this aspect of the test was met. Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?[58]The disability impact statement provided on behalf of the claimant, which as stated she read out, was lacking in detail as to what impact the impairments had on her day to day activities. There was little added to that in the oral evidence, or from the supplementary statement which was taken as read. The evidence that I consider relevant in this aspect of the issue can be summarised as follows(i) Hypervigilance, a sense of always being alert to danger, leading to difficulty in leaving the house.(ii) Very poor sleep, caused in part by nightmares and flashbacks(iii) Difficulty at work including problems in concentration and interacting with others(iv) Difficulty with personal care, including hygiene and healthy eating.[59]These are normal day to day activities in my view. Despite the lack of detail, it appears to me that there is sufficient to hold that there was an adverse effect on the ability to carry out normal day to day activities. For the reasons explained in the analysis of authority above that includes where there are effects on work. Is that effect substantial?[60]The definition of substantial under the Act is that which is more than minor or trivial. Considering all the evidence I heard, despite its limitations as alluded to above, it appears to me that the effect was substantial in that sense. There was some support for the respondent’s position gained during cross examination, where various issues such as the death of her parents, problems with her brother who eventually was required to move out, low back pain and money concerns for example, and there was reference to the GP records. On a number of occasions those records referred to what could be described as an adverse life event, and a reaction to it which could be described as within the range of what might reasonably be expected.[61]But in my view that does not take account of all of the evidence that the claimant gave and which I have accepted as credible and generally reliable. Her reaction to the life events described was not simply that which would normally be expected in all respects, but went for some of them went beyond that, an example of which I have given above.[62]There were also other matters, more day to day ones, which continued but did not attract GP discussion. That included the hypervigilance and its impact, the lack of concentration, the difficulty in personal care and interaction with others, for example. The respondent’s submission in my view takes insufficient account of the diagnosis of CPTSD, the impacts that that has on the claimant’s day to day activities, and its relationship with depression. The extent of the adverse effect was I consider material, and beyond the level of minor or trivial.[63]That conclusion was I consider supported by references to counselling and therapy for example, and the prescription of medication albeit with sideeffects which led to that being stopped. The extent of medical interventions appears to me also to support the conclusion I have reached. There was no real evidence of what the position would be in the absence of treatment, and prescription medication was stopped because of side-effects, but the fact of that and the reference to counselling and to therapy indicate a material impact on her functioning.[64]Taking account of all of the evidence I heard, and taking account of all matters is in effect referred to in paragraph B5 of the 2011 Guidance, I consider that the effect was substantial as that word is defined in the Act.[65]Whilst the detail of that was far from as full as it might have been, and I assess matters from the evidence given not what might have been given, such that the decision is not a straightforward one because of that, I considered that there was, just, sufficient before me to hold that this part of the statutory test was met from consideration of all of the evidence I heard.[66]Is that effect long-term? It is, and was as at the date of employment with the respondent and up to dismissal. It has been on-going since the claimant was a diagnosed with post traumatic stress disorder in 1997, then depression in 2011 and anxiety in 2018. It appears to me that the claimant’s condition is not a stable one, but fluctuates from time to time. It may well be exacerbated by an event, but that does not mean that the claimant is not a disabled person. Nor does it mean that the effect in question is not long term in my view. Having regard to all the evidence I concluded that this part of the test is also met.
Conclusion
[67]I have therefore held that the claimant was a disabled person under the Act and was so for all material times relevant to this Claim.[68]Several of the authorities referred to above were not cited in submission. I did not consider it necessary under the overriding objective to refer them to the parties’ representatives for comment prior to issuing the Judgment, but if the respondent considers that it has not had an opportunity to make submissions on such authorities and that caused injustice it may seek a reconsideration of the Judgment under Rule 68, referring to those authorities and making submissions with regard to them.