Mr S Taylor v Associated British Ports: 8001654/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 8001654/2025
Between
Mr S TaylorClaimantAssociated British PortsRespondent
Before
Employment Judge C McManusMr M K Levins for claimant(Consultant) for claimantMr H Wiltshire for respondent(Counsel) for respondentDate 12 May 2026
JUDGMENT
The judgment of the Tribunal is that in the material period (25 October 2024 to 7 April 2025) the claimant did not have the protected characteristic of disability under section 6 of the Equality Act 2010.
REASONS
[1]The claimant relies on having the protected characteristic of disability in respect of both physical and mental impairments arising from a subarachnoid haemorrhage suffered by the claimant on 19 January 2023.This Preliminary Hearing (‘PH’) was scheduled following a Case Management Preliminary Hearing (‘CMPH’) on 22 January 2026, where the issue for determination at this PH was identified. The claimant provided an impact statement following that CMPH. Issue[2]The sole issue for determination at this PH was:- ‘In the material period (25 October 2024 to 7 April 2025) did the claimant have the protected characteristic of disability, in terms of section 6 Equality Act 2010, taking into account the Disability: Equality Act 2010 - Guidance on matters to be taken into account in determining questions relating to the definition of disability and the EqA Statutory Code of Practice 2011.’ Proceedings[3]Parties relied on documents in a Joint Bundle with 537 pages. Many of the documents in that Bundle were in respect of the substantive issues in this case and were not relevant to the sole issue being determined at this PH. The documents referred to in this decision are with reference to the page numbers in that Bundle (JB1 – JB537).[4]Evidence was heard on affirmation from the claimant, including examination in chief, cross examination and re-examination. Both parties’ representatives provided written submissions and gave oral submissions to supplement these.[5]Material findings in fact were made on evidence relevant to the issue being determined.[6]I dealt with this case in accordance with the overriding objective in Rule 3 of the Employment Tribunals Rules of Procedure 2024. Findings in Fact[7]The claimant suffered a subarachnoid haemorrhage at work on 19 January 2023. That was treated at the Queen Elizabeth Hospital, Glasgow, where he was also diagnosed as having separate condition: an arteriovenous malformation (‘AVM’) (JB176). The entry in the claimant’s GP records in respect of his GP consultation on 20 March 2023 includes ‘Says he feels he has recovered physically but now very stressed” (JB213).[8]The claimant was referred to a Consultant Neurosurgeon at Neurospine Scotland ‘to understand more about his underlying condition’; that being the AVM. The letter from the consultant to the claimant’s GP of 30 March 2023 (JB196) includes “The aneurysm itself was coiled and he has made a remarkable recovery from this. He has maybe got some mild cognitive deficits, although I could not elicit any of these today. He retained Information well and asked proper, pertinent questions.”[9]The letter from the claimant’s treating Consultant Neurosurgeon to the claimant’s GP of 6 April 2023 (JB193 – JB194) includes “Currently the patient was asymptomatic. Scott specifically denied any headaches or seizures and his memory and personality were unscathed.”[10]Following the claimant’s referral by the respondent to Occupational Health, the claimant returned to work on a phased return in May 2023. On 29 June 2023 the claimant underwent elective surgery with a Gamma Knife procedure to treat the AVM condition. He was then absent from work until September 2023. A further Occupational Health (‘OH’) report was obtained by the respondent on 16 October 2023 (JB176). That OH report includes under the heading ‘Current Issues’:- “…his recovery has been uneventful, and he has also made significant progress in recuperating from a subarachnoid haemorrhage earlier in the year, which was successfully managed in Scotland. Mr Taylor has now been cleared to legally drive a domestic vehicle. He is currently not taking any medication. To monitor his progress, a follow-up MRI scan is scheduled for January 2024, with a requirement to continue observation for up to four years post-treatment to assess the gradual obliteration of the AVM. During this time, Mr Kitchen has noted that no major symptoms are expected.”[11]Also in October 2023 the claimant passed an ENG1 medical to allow him to return to work. That is a medical assessment, required to ensure a person is fit to work at sea.[12]The claimant’s GP records show that in September 2023 the claimant spoke to his GP about stress related problems (JB216). The entry dated 27 September 2023 (JB217 – JB218) is “Reported he has been going swimming, gardening and walking to help improve his mood.” Following a consultation for ‘stress related problems’ on 2 October 2023 (JB217) no medication was prescribed. The claimant did not consult his GP practice in relation to concerns about his mental health in the period between 2 October 2023 and 20 May 2024, although in that same period the claimant did consult his GP practice in relation to a number of different and transient symptoms and issues, e.g. chest infection. In that period, the claimant did not report any ongoing concerns in respect of his mental health to his GP. No impairment had significant limiting effects on the claimant’s day to day activities in the period from October 2023 until May 2024. During that period the claimant worked 12 hour shifts, in work which involved manual labour. The claimant did not receive any treatment for mental health in that period.[13]The claimant sought urgent medical input for his poor mental health following a triggering incident on 13 May 2024. The claimant’s GP records include an entry dated 20 May 2024 recording ‘Stress related problem’ and an entry dated 25 June 2024 stating ‘Stress at work’ (at JB183 – JB184). Following an acute stress reaction on 13 May 2024, the claimant was initially prescribed Mirtazapine 15mg (JB212). The claimant experienced negative side effects from that medication and was instead prescribed Fluoxetine from June 2024. The GP records show that the claimant was first prescribed Fluoxetine 20 mg on 25 June 2024. The diagnosis is recorded then as ”stress related to work with anxiety and depression” (JB219). The claimant became withdrawn following that stress reaction in May 2024. His symptoms improved with medication (Fluoxetine) and counselling sessions. The GP records show that the claimant was prescribed Fluoxetine 20mg, to be taken once daily, from 25 June 2024 (JB 211 – 212). The claimant’s GP records show that on 30 August 2024 the claimant continued to be prescribed Fluoxetine 20mg (JB105). The GP records show that Fluoxetine 20mg was last prescribed to the claimant on 25 October 2024 (JB212).[14]The claimant was absent from work from 13 May 2024 until 2 October 2024. An OH report on the claimant was obtained dated 5 September 2024 (JB 177). That report includes, under the heading ‘Current Issues’: “He says his work issues (not being resourced and participating in offshore duties, relationship difficulties, poor communications, feeling isolated) have impacted on his wellbeing and says he has been receiving psychological support via BUPA. He says he has been taking an anti-depressant medication since June 2024 and his GP has advised this will continue for a minimum of six months.” The opinion of OH in that report was that the claimant was fit for work with no restrictions but that a phased return was recommended. That report includes under the heading ‘OH Opinion’:- “Since June 2023 there have been no episodes of altered awareness, loss of conscious, dizziness, insomnia or seizures. He reports due to not being at work feeling more withdrawn. After completing well validated health assessment tools Scott has minimal symptoms of low mood and anxiety. From his activities of daily life, he is active and demonstrates he has no cognitive difficulties. His level of symptoms are consistent with stress and should recede once he feels his job is secure, more financially secure and relationships at work are congenial.”[15]The claimant returned to work on 2 October 2024 (JB364). Prior to that return he attended a Long-Term Incapacity meeting with the respondent on 1 October 2024. The note of that meeting (JB355) records the claimant’s position as being:-“ I'm back, far as I'm aware, went down bottom low, managed to get back again, I'm on fluoxetine, doctor is aware of, why he's put ENG1 to one year because of medication, some days I've not taken it, not felt different, test will be coming back, feeling ok, other than that, got my counselling, still going, but ok with that, been a tough time”.[16]The letter to the claimant of 3 October 2024 (JB364 – JB365) followed that meeting [365]. That letter records that the claimant’s position at that meeting in respect of his health at that time as:- “We also discussed your mental and physical well-being, particularly your stress and anxiety. You advised that you are currently taking Fluoxetine, as prescribed by your doctor, but that you were not experiencing any side effects that may affect your ability to work. You agreed that you would advise us if you experience any side effects as a result. You said that this medication had been working well for you and you were feeling a lot better than you did when your absence first started.”[17]In the period from 13 May 2024 until before the claimant’s return to work in October 2024 the claimant’s mental health significantly affected his normal day to day activities. He was withdrawn and spent most of the time in his home. That significant effect had diminished by the time of the claimant’s return to work in October 2024, at which time the treatment for that mental health condition was continuing.[18]The claimant’s GP records include an entry dated 25 October 2024 stating ‘Acute reaction to stress’ (JB183). There is no record of the claimant then attending his GP practice in relation to any stress, anxiety or work-related stress issues in the period between 25 October 2024 and 3 January 2025 (JB183 – JB184). The claimant attended his GP in respect of ‘bone pain’ on 3 January 2025 (JB184). The medical records in respect of that appointment (JB184) include “Medication requested req bisoprolol – says been on since brain haemorrhage. See daybook confirmation from prev surgery 2.5mg bd and fluoxetine 20mg daily but says use of this can be erratic. Needs bisoprolol.”[19]The GP records of medication prescribed (JB222) is that the claimant was last prescribed Fluoxetine on 25 October 2024.[20]Email from the respondent’s HR Business Partner to the claimant on 29 October 2024 (JB367) followed a meeting with the claimant on that day and records the claimant’s position to the respondent at that time as:- “Great to hear that the return to work has gone positively and you are feeling part of the team. You also said that you had been spending more time observing on the boat which is great to hear. We agreed that you were fit to return to full duties and full hours and that we can sign off your phased return as completed. As advised, please continue to communicate with Byron about your medical situation, and if you experience any new symptoms or side effects to your medication, please ensure you let us know.”[21]An OH report was obtained dated 9 January 2025 (JB178). That included under the heading ‘OH Opinion’:- “Scott was a good historian and his wellbeing this assessment compared to his last assessment shows an improvement as he has mild low mood symptoms and no anxiety at present. Scott has an underlying mental health illness which is stable on his current medication. His medication has been taken since the summer of last year which with his current mental evaluation scores suggests he has adjusted to the medication well. The question of sleepiness at work I feel is more around the shift pattern he has been delegated to work and how relief breaks are managed. His shift pattern may be contributing to sleep deprivation. <sic> tend to be continually sleepdeprived. It is very hard for night shift workers to get enough sleep during the day. This can lead to fatigue and reduced alertness at work during the night or early morning hours. This can often lead to a nap at least once during their shift. We completed a fatigue assessment today and Scott is not symptomatic of fatigue at present. Reviewing the side effects of his medication, tiredness can be a side effect. Scott’s tiredness is relieved by rest and sleep therefore it not considered fatigue. From the clinical evidence and the history reviewed today caution is advised to manage stress at work as his mental health, hypertension and AVM (Arteriovenous Malformations) can be exacerbated by Stress. The effects of stress if not appropriately managed can elevate the blood pressure to increase risk of a bleed on his brain. Stress can cause excessive worrying, anxiety to impact on sleep which would exacerbate the history known.”[22]The GP records, under ‘Medical History’, in an entry dated 2 July 2025 (JB183) state:- “No longer on Fluoxetine as feeling under much less stress since changing jobs”. Comments on Evidence[23]In his evidence, the claimant relied on the position set out in his impact statement (JB168 – JB171). There were significant inconsistencies between the claimant’s position in his witness statement and the position in the medical evidence. The claimant’s position in his evidence in chief and in his impact statement was that since January 2023 he had suffered a significant and long-term impact on his day to day activities. His evidence was that on his return to work in October 2023 he had symptoms of “tiredness, lethargy, mental stress and anxiety about the way I was being treated when I returned to work.” That is inconsistent with the position recorded in the OH report of October 2023, which included “…his recovery has been uneventful, and he has also made significant progress in recuperating from a subarachnoid haemorrhage earlier in the year, ….a follow-up MRI scan is scheduled for January 2024, with a requirement to continue observation for up to four years post-treatment to assess the gradual obliteration of the AVM. During this time, Mr Kitchen has noted that no major symptoms are expected.”[24]His answer to being asked in examination in chief what was the period of time he experienced stress was “I had stress from the time I had the haemorrhage and woke up in hospital and my manager said I had to go through a medical”. In his evidence the claimant sought to focus on his position that the respondents were at fault in the circumstances which led to his brain haemorrhage and in their treatment of him thereafter. He felt that he was unsupported because he had not been allowed to return to his previous duties. In cross examination the claimant’s evidence was that his stress was ‘caused by his employer”.[25]It is not in dispute that the claimant suffered a traumatic health episode in January 2023. As set out in the findings in fact, the medical evidence shows that the claimant recovered from that event and had no lasting physical or mental impairments as a result of that episode (JB176; JB193 – JB194; JB196).[26]The medical records show that from May 2023 the claimant’s mental health was affected, following a trigger on 13 May 2023. The medical records show that the claimant’s mental health improved on him changing his job. The medical evidence does not support the claimant’s position that there has been a significant effect on his day-to-day activities continuously since January 2023.[27]The claimant’s inconsistency between his position in his impact statement and the contemporaneous medical evidence was significant and affected the claimant’s credibility and reliability. The position in the impact statement (paragraphs 4, 15, 16, and 17) that the claimant suffered from cognitive difficulties throughout the period 25 October 2024 to 7 April is not reflected in the medical records or OH reports from that period. The position in that impact statement re the effects of fatigue and the side effects of Fluoxetine (paragraphs 42, 47, 49, 50, 51, 57, 59, 60 and 61) are not consistent with the position in the GP records and OH reports or the claimant’s position to the respondent in October 2025, as set out in email to the claimant of 29 October 2024 (JB367). The position in the impact statement (paragraph 7) is that the claimant ‘would try hard to get rest and sleep, but sleep wouldn’t and couldn’t come”. The medical records do not reflect that sleep issue. It was the claimant’s evidence in cross examination that he had no issues sleeping when working day shift. The claimant’s evidence was that after the haemorrhage he no longer exercised regularly in the way he had done previously, which had included regular swimming, cycling and weight lifting in a gym. That evidence was inconsistent with the position in the GP records that as at 20 March 2023 he felt he had recovered physically (JB213). It was significant that the position in OH report as at 5 September 2024 (JB 177) was that he was active in daily living. I took into account the claimant’s evidence that he continued to ride and look after his horse, although no longer lifted heavy water buckets or hay bales or push wheelbarrows. The claimant’s evidence was that he did not, either before or after January 2023, compete, showjump or engage in energetic horse-riding activities. From the claimant’s evidence, his horse-riding activities did not change after January 2023 (although it is likely that there would have been a change in the period from 23 January 2023 until the claimant’s physical recovery in March 2023). The effect on the claimant’s activities of him no longer lifting heavy water buckets or hay bales or pushing wheelbarrows was not a substantial effect on the claimant’s day-to-day activities. On the claimant’s own evidence that did not have a significant impact.[28]The claimant’s position in his evidence that he had been prescribed Fluoxetine consistently was not consistent with his medical records. In reexamination, the claimant was taken by his representative to the note in his GP records of ‘Current medication’ (JB222). That recorded the last prescribed date for Fluoxetine as 25 October 2024. Taking into account that the record that the claimant was ‘erratic’ in taking that medication (3 January 2025 (JB184)), I concluded that after 25 October 2025 the claimant did not take Fluoxetine 20mg regularly on a daily basis. Had he done so, he would have required additional prescriptions to those recorded in his GP records. The GP records show that after 25 October 2025 the claimant did not request regular repeat prescriptions of Fluoxetine, although did request other medication (Bisoprolol – for high blood pressure).[29]The contemporaneous evidence did not support a finding that there was a significant effect on the claimant’s day-to-day activities in the period from May 2024 to October 2024. The claimant’s evidence on this was inconsistent with his position as reported in the OH report in September 2024. The OH report dated 5 September 2024 (JB 177) is significant. The claimant accepted under cross examination that that report gave an accurate picture of his health at that time. That report states “From his activities of daily life, he is active and demonstrates he has no cognitive difficulties”’. That is contemporaneous evidence that in September 2024 the claimant was reporting to OH that he was active in his activities of daily life. That report was significant in my conclusion that in the material period the claimant did not have a physical or mental impairment which had a significant effect on his day-to-day activities. The position in that report is materially inconsistent with the claimant’s evidence that there was a significant effect on his day-to-day activities from January 2023. That inconsistency affected the claimant’s credibility.[30]I accepted the claimant’s evidence that he had 40 sessions of counselling via BUPA in the period from May 2023 until his dismissal. Although the records from those appointments were not referred to and there was no report from the counsellor, there was reference in the GP records to the claimant having that counselling.
Relevant law
[31]The Equality Act 2010 (‘EqA’) provides for certain ‘protected characteristics’. Disability is a protected characteristic under s 4 of the EqA. The definition of ‘disability’ is set out in s6, as follows: “6(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.”[32]Section 212 defines the word “substantial” as meaning “more than minor or trivial”.[33]Part 1 of Schedule 1 EqA expands on the definition of disability, including the following paragraphs: “2.(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.” and “5. (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.”[36]The Disability: Equality Act 2010 - Guidance on matters to be taken into account in determining questions relating to the definition of disability (‘the Guidance’) must be taken into account. Section A of that Guidance is in respect of the definition of disability. In this case I had particular regard to the Guidance at A2, A4, A5, A6 and A11. Section B of the Guidance covers the meaning of ‘substantial adverse effect’. In this case I had particular regard to the Guidance at B1, B4, B9, B12 – B14, B17. Section C of the Guidance covers ‘long term effects’. In this case I had particular regard to the Guidance at C1 – C12 (although it was not submitted that the claimant had a past disability or that there was a likelihood of recurrence). My consideration included the Guidance at C4, which states: “In assessing the likelihood of an effect lasting for 12 months, account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood. Account should also be taken of both the typical length of such an effect on an individual, and any relevant factors specific to this individual (for example, general state of health or age).” Section D of the Guidance is in respect of the meaning of ‘normal day-to-day activities’. In this case I had particular regard to sections D2 – D6, D11 – D16, D22 and D23. Equality Act 2010 Statutory Code of Practice 2011 (‘EHRC’) Appendix 1 34. Paragraph 7 - ‘What if individual has no medical diagnosis?’ “There is no need for a person to establish a medically diagnosed cause for their impairment. What it is important to consider is the effect of the impairment, not the cause.” Paragraphs 8 – 10 – ‘What is a ‘substantial’ adverse effect? 8. A substantial adverse effect is something which is more than a minor or trivial effect. The requirement that an effect must be substantial reflects the general understanding of disability as a limitation going beyond the normal differences in ability which might exist among people. 9. Account should also be taken of where a person avoids doing things which, for example, cause pain, fatigue or substantial social embarrassment; or because of a loss of energy and motivation. 10. An impairment may not directly prevent someone from carrying out one or more normal day-to-day activities, but it may still have a substantial adverse long-term effect on how they carry out those activities. For example, where an impairment causes pain or fatigue in performing normal day-to-day activities, the person may have the capacity to do something but suffer pain in doing so; or the impairment might make the activity more than usually fatiguing so that the person might not be able to repeat the task over a sustained period of time.” 35. Paragraphs 11 - ‘What is a ‘long term’ effect? ‘11. A long-term effect of an impairment is one:• which has lasted at least 12 months; or• where the total period for which it lasts is likely to be at least 12 months; or• which is likely to last for the rest of the life of the person affected.’ 36. Paragraphs 14 - 15 – ‘What are ‘normal day to day activities’? ‘14. They are activities which are carried out by most men or women on a fairly regular and frequent basis. The term is not intended to include activities which are normal only for a particular person or group of people, such as playing a musical instrument, or participating in a sport to a professional standard, or performing a skilled or specialised task at work. However, someone who is affected in such a specialised way but is also affected in normal day-to-day activities would be covered by this part of the definition. 15. Day-to-day activities thus include – but are not limited to –activities such as walking, driving, using public transport, cooking, eating, lifting and carrying everyday objects, typing, writing (and taking exams), going to the toilet, talking, listening to conversations or music, reading, taking part in normal social interaction or forming social relationships, nourishing and caring for one’s self. Normal day-to-day activities also encompass the activities which are relevant to working life.’ Authorities[37]In Goodwin v Patent Office [1999] ICR 302, the EAT (at paragraph 308) said: ‘Section 1(1) defines the circumstances in which a person has a disability within the meaning of the Act. The words of the section require a tribunal to look at the evidence by reference to four different conditions:(1) The impairment condition. Does the applicant have an impairment which is either mental or physical?(2) The adverse effect condition. Does the impairment affect the applicant's ability to carry out normal day-to-day activities in one of the respects set out in paragraph 4(1) of Schedule 1 to the Act, and does it have an adverse effect?(3) The substantial condition. Is the adverse effect (upon the applicant's ability) substantial?(4) The long-term condition. Is the adverse effect (upon the applicant's ability) long-term?’[38]The Court of Appeal in Sullivan v Bury Street Capital [2022] IRLR 159, CA summarised the relevant questions that a tribunal must ask when determining disability (at para 38) as: “(1) Was there an impairment? (2) What were its adverse effects? (3) Were they more than minor or trivial? (4) Was there a real possibility that they would continue for more than 12 months or that they would recur?”[39]‘Likely’ means ‘could well happen’ (Boyle v SCA Packaging Ltd [2009] UKHL 37, [2009] IRLR 746, [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).[40]The assessment of how long the adverse effect(s) of an impairment have lasted, or how long they are likely to last, is to be made at the time of the alleged discrimination (All Answers Ltd v W and another [2021] IRLR 612, CA, para [26] per Lewis LJ).[41]In Royal Borough of Greenwich v Syed EAT 0244/14 Mr Justice Wilkie observed: ‘[T]he question which the tribunal has to ask itself is not whether the mental health impairment was likely to last at least 12 months but whether the substantial adverse effect of the impairment was likely to last more than 12 months. That is a different question.’[42]The test is a functional and not a medical test. In Aderemi v London and South Eastern Railway Ltd 2013 ICR 591, the EAT commented on the definition of ‘substantial’ (paragraph 14): “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-today 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.” And at paragraph 15: “As a matter of first principle when considering the statute, this requires the focus of the Tribunal to be not upon that which a Claimant can do but that upon which he cannot do. It is what he cannot do that requires to be assessed, to see whether it is truly trivial and insubstantial or whether it is not.”[43]In determining whether an adverse effect is substantial, a tribunal must compare the claimant’s ability to carry out normal day-to-day activities with the ability the claimant would have if not impaired. That is the approach taken by the EAT in Aderemi, as described at paragraphs 16 - 17: “16. We take that to be the approach which a reading of the statute would require. It is the approach as we see it which was adopted, albeit under the Disability Discrimination Act 1995, in Paterson [Paterson v Commissioner of Police of the Metropolis 2007 ICR 1522, EAT]. There, the headnote rightly reads: “The only proper approach to establishing whether the disadvantage was substantial is to compare the effect of the disability on the individual. This involves considering how he in fact carries out the activity compared with how he would do it if not suffering the impairment. If that difference is more than the kind of difference one might expect taking a cross-section of the population, then the effects are substantial. 17. By “compare the effect” we think it means “assess the effect”.’[44]In Nissa v Waverly Education Foundation Ltd [2018] 11 WLUK 718, then HHJ Eady QC held, in allowing the claimant’s appeal from the ET, that the ET had erred when: “In determining whether the effect of the Claimant’s impairments was “long-term”, the ET had focused on the question of diagnosis rather than the effects of the impairments and had adopted a narrow approach, rather than looking at the reality of risk - whether it could well happen - on a broad view of the evidence available.”[45]The Northern Ireland Court of Appeal in Veitch v Red Sky Group Ltd [2010] NICA 69 set out guidance on whether medical evidence is necessary (paragraph 19): “The presence or absence of medical evidence may be a matter of relevance to be taken into consideration in deciding what weight to put on evidence of claimed difficulties causing alleged disability but its absence does not of itself preclude a finding of fact that a person suffers from an impairment that has substantial long-term adverse effect..”[46]In Igweike v TSB Bank plc [2020] IRLR 267, the EAT (HHJ Auerbach) set out a useful review of the case law. At paragraph 35, it was noted that: “Walker v SITA Information Networking Computing Ltd [2013] UKEAT/0097/12 is one of a number of authorities which make the point that there is no requirement to identify the cause of the impairment although, if there is a lack of an apparent cause, that could potentially be regarded as evidentially significant, for example to an issue of whether a complainant's reported symptoms were genuine.”[47]HHJ Auerbach concluded at paragraphs 50 – 51 of Igweike: “50. The question is a purely practical or evidential one, which is sensitive to the nature of the alleged disability, the facts, and the nature of the evidence, in the given case. It will not always be essential for a tribunal to identify a specific ‘impairment’ if the existence of one can be established from the evidence of an adverse effect on the claimant’s abilities — J v DLA Piper UK LLP 2010 ICR 1052, EAT.[48]The issue as to how long an impairment is likely to last should be determined as the date of the discriminatory act and not the date of the tribunal hearing (McDougall v Richmond Adult Community College [2008] ICR 431, CA).[49]When assessing the effect of an impairment without medical treatment, the EAT’s guidance in Goodwin v Patent Office 1999 ICR 302, EAT is : ‘The tribunal will wish to examine how the claimant’s abilities had actually been affected at the material time, whilst on medication, and then to address their minds to the difficult question as to the effects which they think there would have been but for the medication: the deduced effects. The question is then whether the actual and deduced effects on the claimant’s abilities to carry out normal day-to-day activities [are] clearly more than trivial.’ Burden of Proof[50]As noted by Lord Hoffman in Re B (Children) [2008] UKHL 35: “If the tribunal is left in doubt, the doubt is resolved by a rule that one party or the other carries the burden of proof.”[51]The burden of proving disability lies with the claimant. The relevant test is ‘on the balance of probabilities’.[52]It is well established that ‘contemporary documents are always of the utmost importance’ (Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403, at para 431). Applying the above guidance, greater significance was placed on the position in relevant contemporaneous documents, rather than versions of events presented from memory. Significant weight on medical records. The OH report and lack of dispute of that was also considered to be significant.[53]The inconsistencies between the claimant’s position in his evidence and impact statement and the position in the contemporaneous documentary evidence (GP records, OH reports, communications between the respondent and the claimant) was very significant. The evidence on the effect of any physical or mental impairment on the claimant in the period prior to the material period (i.e. prior to 25 October 2024) is relevant to consideration of the claimant’s credibility and reliability and to whether, in the material period, the effects of any impairment were ‘long term’.[54]I made the following conclusions, on consideration of the claimant’s evidence, the OH reports and GP records:-• After the subarachnoid haemorrhage on 23 January 2023 there were significant physical effects on the claimant’s day-to-day activities until March 2023, when the claimant reported to his GP on 20 March 2023 that he felt he had physically recovered (JB213).• After the subarachnoid haemorrhage on 23 January 2023 the claimant experienced stress and anxiety symptoms. The effects of those on his day-to-day activities were not substantial in the period before 13 May 2024. The claimant was not prescribed any medication for stress and anxiety symptoms until after a triggering incident on 13 May 2024.• Following a triggering incident on 13 May 2024, the claimant’s anxiety had a substantial effect on his day-to-day activities. Those effects were reduced by medical treatment, being medication (Fluoxetine 20mg) and professional counselling.• The claimant’s GP records show that the claimant was prescribed Fluoxetine 20mg regularly from 24 June 2024 until 25 October 2024.• On the basis of the OH report dated 5 September 2024, at that time the effects of the claimant’s mental health on his day-today activities were not significant or likely to be long term. The effects of the medical treatment being received at that time require to be taken into account. On the balance of probabilities, discounting the effect of that medical treatment, the claimant’s anxiety would have had a substantial effect on his day-to-day activities as at that time.• The last record of the claimant being regularly prescribed Fluoxetine is on 25 October 2024. Given the inconsistencies, I accepted the position in the medical records rather than the claimant’s position.• On the balance of probabilities, the effect of the prescribed medication (Fluoxetine 20mg) on the effects of any mental impairment can be discounted by January 2025. That is because the claimant’s medical records do not support his position that he has continued to be regularly prescribed Fluoxetine after 25 October 2024 (JB222).• The position in the claimant’s GP records is inconsistent with the position reflected in the OH report of January 2025 (JB178). That includes:- “Scott was a good historian and his wellbeing this assessment compared to his last assessment shows an improvement as he <h>as mild low mood symptoms and no anxiety at present. Scott has an underlying mental health illness which is stable on his current medication.” – From that it appears that the claimant told the OH Consultant that he was at that time on medication for his anxiety. The claimant’s GP records are not consistent with that position.• I accepted the claimant’s evidence that he received counselling through BUPA because there was reference to that in the GP records. Taking into account the position of the EAT in Kapadia v London Borough of Lambeth 2000 IRLR 14, EAT, I regarded that counselling as medical treatment. There was no evidence of the professional status or qualifications of the counsellor (e.g. whether they were a consultant clinical psychologist). On the basis that I accepted the claimant’s evidence that the counselling was via BUPA, on the balance of probabilities I found that the counselling was likely to have been provided by a professional and therefore should be regarded as medical treatment. Without sight of any records or report in respect of that counselling, the evidence before me was not sufficient to conclude the extent of the effect of that treatment. The claimant’s evidence was that as at his dismissal the counselling sessions were due to continue.• In assessing the likely effect of that medical treatment (counselling) in the period from January 2025 to April 2025, following the EAT’s guidance in Goodwin v Patent Office 1999 ICR 302, EAT, I sought to examine how the claimant’s abilities had actually been affected in that period, when the claimant was no longer regularly prescribed Fluoxetine 20mg but was still receiving counselling. I then sought to address the effects which there would have been but for the counselling: the deduced effects. I did not have the benefit of sight of any records or reports from the counsellor. It was not submitted that there was any reason why these could not have been available. The OH report dated January 2025 (JB178) was significant. That described the claimant as at that time having “mild low mood symptoms and no anxiety at present”. That report does not suggest that the claimant’s anxiety had a significant effect on his normal day to day activities at that time. The claimant gave no evidence on any benefit he felt from the Counselling sessions. His evidence was that he had had 40 sessions and that as at his dismissal these were due to continue. On the balance of probabilities I concluded that in the period from January 2025 until April 2025 the claimant’s mental health did not have a significant effect on his day to day activities. Given the lack of evidence on any benefit from the counselling sessions, on the balance of probabilities I concluded that the deduced effects were minimal. On the evidence, in the period from January to April 2025 the actual and deduced effects of the claimant’s mental health (anxiety) on the claimant’s abilities to carry out normal day-to-day activities were not clearly more than trivial.• Following All Answers Ltd v W and another, when considering the question of the likelihood of the effects lasting more than 12 months, I assessed that likelihood as at the material period. I did not take into account evidence of the position after the material period.• On the basis of the GP records and the OH report dated 9 January 2025 (JB178), by January 2025, the claimant’s mental health (anxiety) did not have a significant effect on his day-today activities.• On the basis of the GP records and the OH report dated 9 January 2025 (JB178), as at January 2025 the effects on the claimant’s day-to-day activities were not likely to last more than 12 months.• By January 2025, the claimant did not have a physical or mental impairment which had a substantial effect on his day-to-day activities.• Taking into account the effect of medical treatment, on the evidence, the claimant had a mental impairment which had a significant effect on his day-to-day activities in the period from 13 May 2024 until January 2025. By January 2025 those effects had not lasted 12 months. On the basis of the OH report dated 9 January 2025 (JB178), in January 2025, those effects were not likely to last 12 months.• On that basis, in the material period (25 October 2024 until 7 April 2025) the claimant did not have a physical or mental impairment which had a long term substantial effect on his day to day activities.[55]I addressed the questions identified by the Court of Appeal in Sullivan v Bury Street Capital [2022] IRLR 159, CA (at para 38), in respect of the material period (from 25 October 2024 until 7 April 2025). (1) Was there an impairment[56]Prior to 25 October 2024, the claimant had diagnosis of physical impairments of a subarachnoid haemorrhage and AVM. As at 25 October 2024 no medical treatment was “being taken to treat or correct “those impairments” (in terms of para 5(1), Sch 1, EqA). Both physical impairments had been treated. There was no current treatment. On the evidence, in the material period the effects of those physical impairments on the claimant’s day-to-day activities were not substantial effects. As at 20 March 2023, the claimant had made a physical recovery (JB213). In the material period (from 25 October 2024 until 7 April 2025) the claimant did not have a physical impairment which had a substantial effect on his day-to-day activities.[57]Within the material period (from 25 October 2024 until 7 April 2025) the claimant had a mental impairment (anxiety and depression). On the evidence, that mental impairment did not subsist for the entire material period. The claimant was last prescribed Fluoxetine 20mg on 25 October 2024. On the basis of the GP records and the OH report dated 9 January 2025 (JB178), as set out above, by January 2025 the claimant did not have a mental impairment which had a long-term substantial effect on his day-to-day activities. (2) What were its adverse effects?[63]I addressed that question taking into account the meaning of ‘normal day to day activities’ in the Guidance and Code of Practice. On the basis of the position in the contemporaneous GP records and OH reports, the adverse effects were not suffered consistently since January 2023. The adverse effects varied as set out in the findings on fact and comments above. (3) Were they more than minor or trivial?[64]I addressed that question taking into account the meaning of ‘substantial adverse effect’ in Guidance and Code of Practice and the guidance in Aderemi on the approach to be taken. Within the material period there was a period when the effects of the claimant’s mental health on his day-to-day activities were not minor or trivial. That is as set out in the findings on fact and comments above. (4) Was there a real possibility that they would continue for more than 12 months or that they would recur?[65]The OH reports of 5 September 2024 (JB 177) and of 9 January 2025 (JB178) was significant in my conclusion that in the material period there was not a real possibility that the significant effects would continue for more than 12 months or recur. It was not the position of the claimant or his representative that the effects of the claimant’s poor mental health on his day-to-day activities was likely to recur.[66]I accepted the respondent’s representative’s reliance on the contemporaneous documentary evidence. I accepted their reliance on the inconsistencies between the claimant’s impact statement and the contemporaneous documentary evidence.[67]I did not accept the claimant’s representative’s reliance on the claimant having a neurological condition which requires monitoring for 4 years. I required to consider the effects, and the evidence did not support a finding of there being a long term substantial effect on the claimant’s day to day activities. The contemporaneous documentary evidence did not support the claimant’s representative’s position that the claimant had both physical and mental impairments which had a substantial adverse effect on the claimant’s normal day to day activities (including sleep, cognition and routine functioning), from 2023 and continuing throughout the material period.[68]For these reasons I found that in the material period the claimant did not have the protected characteristic of disability. The complaints brought by the claimant in this claim under the Equality Act 2010 which are reliant on him having that protected characteristic in the material time are therefore dismissed. Further procedure[69]The complaints of unfair dismissal (section 98 Employment Rights Act 1996); dismissal by reason of having made a protected disclosure (section 103A Employment Rights Act 1996) and detriment on the grounds of having made a protected disclosure (section 47B Employment Rights Act 1996) proceed unaffected by this decision.[70]Case Management Orders to ensure preparation for the Final Hearing were issued with the Note following the CMPH. The claim will now be scheduled for a Final Hearing, including remedy. Date listing letters will be issued to allow parties the opportunity to advise of unavailable dates. In their responses, representatives should provide information on the witnesses they intend to call at the Final Hearing, and why they are relevant and necessary for determination of the disputed issues which are to be determined at the Final Hearing.[71]For the avoidance of doubt, the findings in fact in this judgment relate only to the issue of disability status in the material period. 12 May 2026