R Mitchell v St Andrew’s Timber & Building Supplies Ltd: 8000510/2024

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8000510/2024

Between

Robyn MitchellClaimant

St. Andrew’s Timber & Building Supplies LtdRespondent

Before

Employment Judge Doherty

Date 28 May 2025

JUDGMENT

The Judgment of the Tribunal is that at the relevant time the claimant was a disabled person under Section 6 of the Equality Act 2010.

REASONS

[1]This was a Preliminary Hearing (PH) to consider the issue of whether the claimant was a disabled person in terms of section 6 of the Equality Act 2010 (the “EQA”) during the relevant period. The relevant period runs from the 11 December 2022 to 20th February 2024. E.T. Z4 (WR)

[2]The claimant appeared on her own behalf, and the respondents were represented by Mr Lee, Solicitor Advocate.

[3]The respondents have an outstanding application for the order of a deposit in respect of the claimant's complaint of a failure to make reasonable adjustments. It was explained that this application would not be considered at this PH until such times as the tribunal determined the issue of disability status, as the tribunal's jurisdiction to consider this claim rests on that determination.

[4]The respondents take issue with every part of the test of disability status i.e. whether the claimant had an impairment; whether the effect of that impairment met the test of being a substantial adverse effect; and whether that effect was long term effect. Determination of these questions are therefore the issues before the tribunal at this PH.

[5]The claimant gave evidence on her own behalf. For the respondents evidence was given by Ms Astrid McCabe, the finance director, and Ms Kerrie Ferguson, Operations Director. Findings in Fact The claimant’s date of birth is the 28 December 2001. The claimant suffers from anxiety. She has attended her GP on multiple occasions and has been prescribed a variety of medication as a result of her condition. The claimant had been prescribed various forms of anti-depressant medication, which she has taken on and off from 2020 to date.

[6]The claimant first attended her GP with symptoms of anxiety when she was around 16 years old as she was having trouble concentrating, and was struggling with mood swings.

[7]The claimant attended her GP in March 2020 suffering from low mood. She reported feeling stressed with college and work. She reported feeling a failure, and worried about money. She was prescribed SSRI medication.

[8]The claimant attended her GP again on the 26th of March 2020. She reported that her mood was slightly better, and that the SSRI medication had helped. Her medication was continued after that. The claimant put her low mood down to being anxious about Covid and the thought of losing loved ones.

[9]The claimant attended again with her GP on the 24th June 2020 when she reported feeling a bit better with SSRI medication. This medication was continued.

[10]The claimant attended her GP again on 2 October 2020. She reported that she had been feeling better so she stopped taking her medication. When the claimant stopped taking her medication her symptoms returned. Her doctor prescribed SSRI medication again, suggesting that she continued to take it until December 2020.

[11]The claimant attended her GP again in November 2020 when she reported having good and bad days, and having suffered weight loss. Her medication was discussed, but she continued taking SSRI, medication.

[12]The claimant attended her GP again on the 23 December 2020 reporting that her symptoms were continuing. Her GP recommended online CBT, however, the claimant had recently tried this, and was not keen to follow this option. It was recommended to her that she tried to get regular exercise with friends, and to make firm plans to do things which she enjoyed. Her medication was changed to Seletraine.

[13]The claimant attended her GP on the 4th of February 2021 reporting that her mood was a little brighter with a change of medication. Her medication was continued

[14]The claimant found that the medication she was prescribed in February helped at first, but her feelings of anxiousness never disappeared and therefore she stopped taking the medication from time to time. She was also motivated to do this as she did not want to remain on antidepressant medication all of her life. By October 2021 the claimant had stopped taking Sertraline and was not taking any medication. The claimant’s anxiety had by that time then become so bad that she considered committing suicide. She felt overwhelmed. Her symptoms were not being able to sleep or concentrate on anything. She had no interest in speaking or interacting with anyone. Her mood swings were out of control and she shut herself in her room at home.

[15]The claimant attended her GP again on the 13th of October 2021. It was noted that she reported she was struggling with low mood, and had been over a long time, but that it was now worse. The claimant told her GP that she did not think that Sertraline helped so she gradually stopped taking it. It was noted that she was feeling constantly low, and feeling that ‘she can't do anything’. She reported having suicidal thoughts. The claimant was provided with counselling advice, and she was prescribed an increased dose of Sertraline.

[16]The clinic attended her GP on the 27 October 2021, when it was noted there was no real change in her condition, and her medication was continued.

[17]The claimant attended her GP again on the 11th November 2021 when it was noted that she was feeling ‘OK’ and that she was starting with a new job. It was noted she was coping with 10mg of Sertraline and this was increased to a 150mg dose. The claimant attended on 25 November reporting feeling much the same.

[18]Between 4/3/20 and 25/11/21 the claimant had eleven telephone appointments with her GP as a result of her anxiety symptoms.

[19]In March 2022 the claimant had a job with Scottish Widows working on front line telephone enquiries/support. This job put the claimant in a position where she had to deal with difficult customers she was spoken to in a manner which she found difficult to cope with. She felt out of control as a result of her anxiety. She experienced physical symptoms of muscle pain and being sick.

[20]On 1 March 2022 the claimant attended her GP with symptoms of anxiety. It was noted that she had been struggling with anxiety symptoms for many months. It was noted that the claimant had started on Sertraline in November 21, but had admitted to not really taking it. It was noted that numerous GI investigations were all negative but there was persisting nausea and loss of appetite. The claimant reported that she thought these symptoms may be due to anxiety rather than GI pathology and her mental health was discussed at some length and a further appointment arranged for the following day. On 22/3/22, the claimant attended the GP again when it was noted that she was feeling very low and anxious. It was also noted that the claimant did not feel that the Sertraline helped. She was sleeping poorly and was eating very little and was quite tearful. It was noted the claimant had been off work for six months because of technical issues and did not feel this was helping. The claimant was giving information about counselling agencies, and started on Citalopram, with a follow up appointment arranged. She attended again on 18 March when it was noted she was feeling a bit better, and less anxious and nauseated. She was starting to return to work. Her medication dose was increased.

[21]The claimant commenced working with the respondents on the 5th of December 2022 in the Accounts Department. The claimant’s mother also works for the respondents in the same department.

[22]The claimant formed friendships at work. She occasionally socialised with work mates. On one occasion she organised a team from staff members participating in a sporting event in Edinburgh in order to raise money for Cancer Research. The claimant’s time keeping was good, and she was able to carry out her duties at work. She generally presented well in terms of her appearance at work. She was able to approach managers, Ms McCabe and Ms Ferguson about work related issues. The claimant’s managers regarded her as a ‘bubbly’ personality.

[23]The claimant had 27 days absence from work during her employment. In addition to her time off with anxiety she had 8 days of in January 2023 due to a family bereavement; 8 days off with a tonsillitis related matter and other days of with different ailments.

[24]The claimant failed the course work she was undertaking while in the respondent’s employment. This occurred around August 2023. In August 2023/September 2023 the claimant’s anxiety was at its worst. She had good and bad days, however she lost interest in everything. A task such as answering the telephone could result in her being physically sick while at work. She was tearful. She had difficulty sleeping and difficulty concentrating. She lost interest in eating. She often did not wash. When she attended work she did her best to mask this, for example by pulling her hair back in a ponytail. She avoided socialising. She did not go shopping unless accompanied by her mother who had to persuade her to go. At home she shut herself away from her family, sometimes staying outside her car for a large part of the evening. Her perception was that everyone was ‘out to get her’, including her family. On one occasion she told her manager she had a ‘toxic’ relationship with her family. She did not want to tell her managers about being sick or crying as she did not want to appear weak.

[25]The claimant attended her GP on 28 August 2023. It was noted that the claimant had diarrhoea and a sore tummy. It was noted that the claimant wanted to speak about her mental health and that she had anxiety for years and experienced physical symptoms with it - nausea and abdominal pain. It was recorded she had poor appetite and difficulty getting off to sleep due to worrying thoughts. It was noted that the claimant said that she worries about everything all the time, thinks the worst case scenario about everything and is very overwhelmed by it. It was noted that the claimant had tried self-help resources and apps to help her cope but nothing had helped. She had also seen a private counsellor but could not afford this. It was noted that the claimant had been on anti-depressants before, but that they had not worked either. It was noted that the claimant had not washed or done her shopping for some time now due to the anxiety. The claimant was prescribed Propranolol, with a review in one week, and was given it with a fit note for a period of three days, as she did not think she needed longer than that. A review was arranged in two/ three weeks’ time.

[26]The claimant did not want to take time off work as she felt it would result in more work for her mother and she felt guilty about this. The claimant was certified as unfit for work by her GP from 28/8/23 to 8/9/23 due to her “anxiety state”.

[27]The claimant attended her GP on 5/9/23. It was noted that she had been feeling a bit better but was still quite anxious. It was noted that the claimant had been back at work but that she got palpitations and anxious when talking to other people. The claimant reported that work was short staffed and matters were complicated by the fact that her mother works for the same company, and would have to do extra work if the claimant is absent which is making her feel extremely guilty. The claimant was tearful during the consultation. She was prescribed an increased dosage of Propranolol.

[28]The claimant remained on Propranolol up until the middle of January 2024. She then decided unilaterally to come off that medication as she did not want to be on anti-depressants for the rest of her life. She was trying alternative treatment in February for her anxiety. The claimant was dismissed on 20 February.

[29]The claimant’s GP provided a letter dated 5 August 2024 in which she stated; “I am writing as Robyn’s GP to confirm that she has a documented history in her medical records of consultations relating to anxiety dating back to Dec 2020. She has attended on numerous occasions since then and been offered both medical and psychological support. She was issued with a medical certificate in Aug-Sept 2023 because it was felt she was too unwell to attend work due to anxiety.”

[30]As a result of her anxiety the claimant experiences include low mood and feeling overwhelmed. She avoids social contact such as going to the shops or socialising. She will only go to the shops with her mother. She experiences difficulty in sleeping, neglecting self-care such as washing, and eating. While working with the respondents at times she relied on her mother to get her out of bed in the morning, and pulled her hair back into it tight ponytail to avoid it being apparent that she has not showered. She is on occasions physically sick as result of her anxiety.

[31]The claimant has stopped taking her prescribed anti-depressant medication from time to time as she does not want to remain on this medication for life. When the claimant has stopped taking her medication her symptoms of anxiety and low mood, poor appetite have returned. This has occurred in October 2020, October 2021 and March 2022. In October 21 this was to the extent that she has suicidal thought.

[32]The claimant has experienced increased symptoms of anxiety as a result of being put onto stressful situations. Stressful situations which she has experienced have been at school when she was 16, difficulties with college, worries about Covid in 2020; a stressful situation while working at Scottish widows in March 2022; the death of her grandfather in January 2023, and failing her course while working with the respondents in August 2023. Submissions

[33]Both sides made oral submissions which are dealt with below where relevant. Note on Evidence

[34]A considerable amount of evidence was given by all of the witnesses which was not directly relevant to the issues which the Tribunal has to determine, but which went to the merits of the case. It is not the function of the tribunal at this hearing to make any determination of factual disputes relevant to the merits of the case, and no findings in fact are made in respect of any of the disputed facts on which evidence was led which fall into this category.

[35]The tribunal found the claimant to be a credible and reliable witness in terms of her condition and the impact of that condition on her abilities. The claimant clearly struggled with her emotions throughout her evidence, often breaking down in tears, but managed to carry on to complete the hearing.

[36]The tribunal also found that the two respondent’s witnesses gave credible evidence. The tribunal did not form the impression that either Ms Ferguson or Ms McCabe in any way sought to mislead in giving their evidence as to their observations of how the claimant appeared in the office, and how she interacted with colleagues. Indeed, the claimant accepted a good deal of what they said. She accepted she had formed friendships at work, had organised a social event, had socialised on occasion with friends at work and had raised work issues with her managers.

[37]The claimant accepted that she was not late for work, and that she was likely to present well. Her explanation as to how she achieved this in circumstances where she found it difficult to motivate herself to wash was and convincing, in this she explained her mother had to persuade her to get out of bed and that she pulled her hair back so that the fact that she had not washed would not be easily recognised.

[38]The claimant accepted that she never raised the fact that she was tearful or sick while at work with her managers, explaining convincingly in the tribunal’s view, that she did not want to appear weak in front of her manager and wanted to be viewed as a grown up.

[39]The tribunal was not persuaded that the fact that neither Ms Ferguson nor Ms Mcabe saw the claimant crying or witnessed her going to the toilet to be sick rendered the claimant’s evidence on these mattes incredible. While submitted by Mr Lee in line with Ahmed v Metroline travel Ltd UKEAT /04/400/10/JOJ, the tribunal can have regard to evidence to counter a claimant’s evidence as to the impact of an impairment, was not suggested by either witness that they saw the claimant all the time at work, or that they were or could have been aware of how the claimant was feeling at all times.

[40]Further, the claimant’s evidence was not that this state of affairs where she was crying and being sick persisted through her whole period of employment with the respondents. Her evidence was that her symptoms were at their worst in August September 2023, after which time she was prescribed Propranolol, on which she remained until January 2024. Submissions

[41]Both sides made submissions which are dealt with below or above, where relevant, but which in the interests of brevity are not set out here in full.

Consideration

[42]Section 6 of the EQA provides; “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.” Schedule 1 (a) Part 1 to the EQA provides that: “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) it is likely to last for the rest of the life of the person affected.”

[43]Supplementary provisions on disability status are contained in Schedule 1 to the EQA, and in the Guidance on matters to be taken into account in determining questions relating to the definition of Disability (the Guidance), and the Equality and Human Rights commission Code of Practice and Supplement.

[44]In relation to normal day-to-day activities the Guidance provides: “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.”

[45]The Equality Act 2010 (Amendment) Regulations 2023, Regulation 6 adds Schedule 1 of the Equality Act 2010 the following in respect of normal day to day activities: “(2) References in the relevant provisions to a person's ability to carry out normal day-to-day activities are to be taken as including references to the person's ability to participate fully and effectively in working life on an equal basis with other workers.”

[46]Substantial means “more than minor or trivial”.

[47]The adverse effect should be assessed having discounted any positive impact which is associated with any treatment regime.

[48]The focus should be on what an employee cannot do or can do only with difficulty, and not on what they can easily do.

[49]An impairment will have a long-term effect only if it has lasted for at least 12 months, the period for which it lasts is likely to be 12 months or it is likely to last for the rest of the life of the person affected (paragraph 2(1), Schedule (1). The Guidance clarifies that “likely” means “could well happen”.

[50]In considering whether the claimant meets the definition of disability there are 4 questions for the tribunal. These are:(1) Does the Claimant have a physical or mental impairment?

(2) Does that impairment have an adverse effect on their ability to carry out normal day-to-day activities?

(3) Is that effect substantial?

(4) Is that effect long-term?”

[51]The Tribunal reminded itself that the burden rests with the claimant to establish disability status.

[52]Mr Lee took issue with whether the claimant had an impairment. He submitted there was a lack of any convincing evidence that the claimant had been diagnosed with anxiety.

[53]Mr Lee took the tribunal to the medical records which he submitted narrated in effect a history of attendances by the claimant in response to life stresses. These were the feeling pressure at school and college because of exams, worry about Covid, a stressful job at Scottish Widows, the death of her grandfather and failing her course while working with the respondent. The claimant’s situation could be likened to the circumstances outlined in J v DLA UKEAT/0236, paragraph 42 and 43.

[54]The tribunal considered what was said in that case. The EAT confirmed that it remained good practice for the Tribunal to state a conclusion separately on the question of an impairment. It went on at paragraph 40; “… 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 twelve 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-term.”

[55]The tribunal did not find that there was an absence of medical evidence diagnosing the claimant with the impairment of anxiety. She had several attendances with a GP in the period from 4/3/20 to 25/11/21 where she describes symptoms including low mood, feeling fed up and lack of appetite, and during this period she was regularly prescribed medication for her condition, albeit she stopped taking it in October 2020 and October 21. By 1/3/22 the claimant was recorded as having ‘anxiousness symptoms’ and that she had been struggling with anxiety for 6 months. She was recorded as feeling anxious. She was again prescribed medication. By 23/8/ 23 she was recorded on the medical records as having had anxiety for years. It was noted that she could not wash or do her shopping because of anxiety. She was certified as unfit for work due to an anxiety sate. Her GP confirmed in August 2024 that the claimant had a documented history of consultations relating to anxiety dating back to December 2020.

[56]While the claimant accepted that stressful situations made her condition worse, on balance the Tribunal concluded that it was more likely that the claimant’s anxiety was an underlying condition, as suggested in her GP letter of August 2024, which was exacerbated by stressful situations. In reaching this conclusion the Tribunal take into account that the claimant has been a regular attender at her GP through the period from 2020 until her dismissal with anxiety symptoms. She had been regularly prescribed medication, which had on occasion alleviated her symptoms as noted in her records, although it has not always done so, and the claimant has stopped taking medication on occasions as she did not feel not was working or because she was motivated not to remain on anti-depressant medication. The fact that the claimant had attended her GP so regularly, over an extended periods of time, and had been so regularly prescribed anti-depressant medication for lengthy periods of time, does not suggest that she was experiencing simply a reaction to adverse circumstances

[57]For these reasons the tribunal was satisfied that the claimant suffered from the impairment of anxiety.

[58]The tribunal then went on to consider the effects of that impairment, and whether it had a substantial adverse effect on the claimant's ability to carry out day-to-day activities which was long term. In doing so the tribunal reminded itself that the effects of medication should be ignored. What the Tribunal has to do is assess the claimant’s condition as though she was not taking the medication she was prescribed. The claimant did stop taking her prescribed medication at various points during the relevant period, and the tribunal accepted her evidence that she did this because she did not want to remain on antidepressants all of her life. It also accepted the claimant's evidence that when she stopped taking her medication her symptoms of anxiety returned. This is supported by the medical evidence which records the claimant’s attendances on October 2020, October 21 and March 22, when she had stopped taking medication, reporting an increase in her symptoms of anxiety. In August 2023 she when she attended her GP she was suffering from a number of anxiety symptoms and was again prescribed medication. Her symptom were nausea and abdominal pain; poor appetite ;difficulty getting off to sleep due to worrying thoughts; and feeling over whelmed. At that time the claimant did not regularly wash, having a shower once a week ; she avoided shopping unless accompanied by her mother ; and was avoiding social contact due to the anxiety to the extent she was reluctant to go into her family home and remained outside in her car rather than do this.

[59]Taking these factors into account the Tribunal assessed the claimant’s condition as though she was not being treated and on balance concluded that as result of her impairment of anxiety the claimant suffered a number of effects which included that she neglected her self-care, had difficulty shopping, and avoided social contact.

[60]The Tribunal considered if these effects of the claimant’s impairment comprised a substantial adverse effect on the claimant's ability to carry out day to day activities.

[61]Social interaction, shopping and self-care are all the normal day-to-day activities. The tribunal considered whether the extent to which these were affected was more than trivial or minor. It was satisfied that notwithstanding that the claimant managed to present well at work, that not having a shower for a week, avoiding social contact to the extent that on occasion the claimant would remain outside in her car for extended periods to avoid all contact with her family, and that she would only go shopping when persuaded to do so by her mother and accompanied by her mother, where all effects which were more than trivial and minor.

[62]Lastly the tribunal considered whether the effects of the impairment were long term, meaning that they had to last more than 12 months, or was likely to last for at least 12 months. This is to be assessed as at the relevant period. Taking into account claimant has been attending her GP 2020 complaining of anxiety symptoms for which she had been regularly prescribed medication, and that her symptoms returned when she stopped taking that medication the Tribunal was satisfied that at the relevant period the effects of the claimant's impairment had lasted for more than 12 months, and her condition was long term. In any event , if the tribunal is wrong in this conclusion it was satisfied that the effects of the claimants impairment are likely to last at least 12 months. Likely means could well happen. Given the claimant’s long medical history and the effects of her untreated symptoms over a period from 2020 up until the relevant date, the Tribunal concluded on balance that it was likely that the effects of her impairment would last 12 months or more.

[63]The effect of these conclusions is that the tribunal was satisfied that the claimant was at the relevant time a disabled person in terms of section 6 of the EQA.

[64]If either party considers that any further case management is required prior to listing the case for a final hearing they should advise the tribunal within the next 14 days.