Mr C Kane v City of Edinburgh Council: 8001687/2025

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No 8001687/2025

Venue Edinburgh

Hearing 8 January 2026

Between

Mr Callum KaneClaimant

City of Edinburgh CouncilRespondent

Before

Employment Judge Robison

Date 16 January 2026

JUDGMENT

[1]The judgment of the Employment Tribunal is that the claimant is disabled (by reason of the impairment of depression) at the material time (from May 2024 to date) in terms of section 6 of the Equality Act 2010.

[2]This case will now be listed for a further case management preliminary hearing to take place by video at a time to be advised at which a final hearing will be listed.

REASONS

[1]At a preliminary hearing on case management, which the claimant did not attend, this case was listed for a preliminary hearing to determine the following preliminary issues: whether the claimant is a disabled person in terms of s.6 of the Equality Act 2010 and the date he became so; and to deal with case management as appropriate.

[2]The respondent’s subsequent application to include the issue of whether the complaints were lodged within the applicable time limits was granted.

[3]At the outset of the hearing, after I queried whether the respondent was to call any witnesses given I was to determine the substantive point of time bar, Mr Milligan agreed that matter should be deferred and revisited after the decision on disability status and a case management discussion (see note dated 8 January 2026).

[4]Accordingly the only issue for determination at this preliminary hearing was the question of disability status. I heard evidence from the claimant only, and after cross examination, submissions from both parties. Reference was made to a file of productions which I understood had been lodged by the claimant.

[5]The stated disabilities which the claimant relies on are depression and seasonal affective disorder (SAD). Findings in fact

[6]I made the following findings in fact based on the evidence heard and the productions lodged.

[7]The claimant commenced employment with the respondent on 10 June 2006. He continues in the employment of the respondent as a cleansing operative, although he is currently suspended.

[8]In or around 2019, the claimant suffered some personal difficulties when a friend was killed. The claimant became aware of difficulties with coping after that time. In particular, he would have concerns in certain environments, such as on public transport or walking in busy streets when he might feel stressed. As a result he changed his behaviour, and would not go to certain environments, and he stopped playing and attending football for a time because of his concerns about being in crowds.

[9]The claimant attended his GP around that time. During discussions with his GP, it was recognised that his symptoms were worse during the winter months and there was a discussion about the claimant suffering from seasonal affective disorder (SAD).

[10]The claimant’s symptoms would fluctuate in intensity and could be severe on occasions. When they were severe, he would not leave the house, and would have difficulty getting out of bed, washing, and sleeping. The claimant’s symptoms would fluctuate from day to day, or from week to week, or from month to month.

[11]Following several short and long term absences from work from March 2021, and a referral to occupational health, the OH nurse identified that the claimant needed long term therapy to deal with past trauma but in the meantime recommended a follow up appointment with his GP.

[12]After attending his GP in 2021, the claimant was prescribed anti-depressants. At first he was prescribed fluoxetine, and although that had a positive impact on his mental health, it had a negative impact on his physical health. He stopped taking anti-depressants for a time but was subsequently prescribed sertraline.

[13]The claimant has taken anti-depressant medication intermittently since 2021, due in part to concerns about the impact on his physical health, and due partly because of his scepticism about taking medication. When he resumes medication, it can take four or five weeks to take effect. Thereafter, he finds that the medication helps and the symptoms reduce. His mental health improves such that he can look after his physical health through exercise etc.

[14]In early 2022, the claimant was referred again to occupational health by his manager Robert Farquhar and an assessment was conducted on 15 March 2022. The report stated as follows: “[the claimant] reports a history of poor mental health particularly since his friend died in 2019. He advised he has been prescribed medication previously and he reports that he is currently on prescribed treatment. He advised that his poor mental health affected his lifestyle and his diet was poor which he believes had an impact on his gastric health…... He advised that most recently his mental health has improved which he attributes to a healthier lifestyle and being on prescribed treatment….he advised he had had a session with PAM assist previously and was advised they would not be able to provide longer term counselling that he requires as he may have Post Traumatic Stress Disorder PTSD. He reports that at that time he had a heightened anxiety, he was having flashbacks and his sleep pattern was affected. [The claimant] advised that he has spoken to his GP regarding this several weeks ago and he has now been referred for specialist counselling with the NHS”.

[15]The occupational health nurse was of the view that the claimant was unfit for work at that time, but she requested an up dated GP report.

[16]That GP report, dated 25 March 2022, stated the following: “[the claimant] first presented in March 2021 following an vasovagal syncopal episode at work with unwitnessed loss of consciousness with a background history of headaches. He was investigated with blood tests and ECG and was referred on to the Cardiology clinic to rule out a cardia cause. All investigations were normal and he was advised fit to drive and return to normal activities in May 2021. He had a period of prolonged absence between May and August 2021 and struggled with returning to work due to stress and anxiety over the vasovagal event. He has a subsequent consultation with my colleague Dr Mackinnon in December 2021 following unexpected bereavement which exacerbated his mental health. This was compounded by subsequent relationship breakdown at the same time and he has had a period of sickness leave again. He has subsequently been signed posted to Cruse Bereavement Counselling and the Rivers Centre for post traumatic counselling for ongoing support”.

[17]Thereafter the claimant had a further telephone assessment with OH on 10 May 2022. The opinion of the nurse was that the claimant was fit to work at that time. In response to specific questions, she confirmed that the claimant did not have a formal diagnosis of PTSD, but it was suggested that should be ruled out.

[18]The report also stated that, “From the GP report, deterioration in mental health was again noted end of 2021 following further bereavement after a friend and his dog died. He was on an antidepressant intermittently over the past few years (including recent months) but he has now stopped again following discussion with his GP who will continue to monitor him while trauma counselling is still pending via NHS. His previous absences may have been partly related to his unstable mental health dating back to 2019 and his symptoms may also be contributing to some physical symptoms such as bowel issues, but I would hope that work attendance will improve with the ongoing support of his GP who is more aware of his psychological issues at present and has signposted him from trauma counselling”.

[19]The claimant was subsequently absent again from work from March to August 2023. The claimant was therefore referred again to OH by his manager Joseph Greenan.

[20]Following a telephone assessment report, the OH report stated that the claimant reported having recurring episodes of low mood, usually in the winter months. He had been consulting his GP and was commenced on appropriate medication a few weeks ago (noted elsewhere to be 5-6 weeks).

[21]Under OH opinion it was stated that, “[the claimant] has significant psychological symptoms affecting his mood, concentration, sleep and motivation and has increased anxiety symptoms also, impacting not only his fitness for work but day to day activities also. Having completed a wellvalidated mental health evaluation [the claimant] will require further intervention to resume a level of well-being consistent with a return to work; his scoring today indicates severe symptoms of depression and severe symptoms of anxiety. The prescribed medication can take a number of weeks to have the desired effect…it is my opinion that [the claimant] is unfit for work at the present time, and I would anticipate a return to work to be possible within the next 4 weeks…once [the claimant] has reached a level of fitness conducive to a return to work, I would recommend a phased return over a period of 4 weeks. Unfortunately, anxiety and depression can re-occur in the future. However it is hoped that with appropriate medication, taking therapy and management report the risk of reoccurrence is reduced.”

[22]In that report, under the heading “current function, activities of daily living”, it was noted that the claimant could do all of the following: takes care of all shopping needs independently; plans and prepares adequate meals independently; eats and drinks without assistance; tends to personal care and maintains a good level of hygiene independently operates telephone, mobile phone tablet or computer; travels independently via own car and drives; performs all domestic tasks and maintains household independently; exercise/sports/hobbies: football, keep fit. The OH nurse confirmed that the claimant had a diagnosis of depression and was prescribed sertraline.

[23]During 2024 the claimant had several short-term absences although no long term absences and was not taking medication during that time.

[24]In or around October/November 2024 the claimant moved back in with his parents.

[25]The claimant’s mental health deteriorated after he was supended in December 2024, and the symptoms recurred, including difficulties in getting out of bed, and preparing food etc, in respect of which he relied on his parents.

[26]In or around December/January 2025, the claimant was referred for a further OH assessment by his manager Lawicki Grzegorz. The claimant attended a telephone appointment on 7 January 2025, and a report was furnished to the respondent which concluded that the claimant was not fit for work at that time.

[27]It was noted that he reported to the OH nurse that he “has ongoing symptoms of low mood and anxiety. [He] denies other conditions or concerns but reports of ongoing perceived work related stressors which are worsening symptoms of anxiety and depression. [He] is not waiting any appointments or referrals. [He] is not currently prescribed any medication in relation to the anxiety and depression. [He] reports that because of the ongoing perceived work related stressors and symptoms he does not feel fit for work currently….he continues to have ongoing issues with poor motivation, difficulties concentrating, anxiety, worrying, lack of enjoyment in things, difficulties sleeping overnight, poor self confidence and low mood. [He] states to have ongoing problems tending to most daily living activities and states that he will only leave home when taking his dog for short walks or when visiting the shops later in the day when quieter. [He] used to enjoy exercising and football but has lost all interest in these activities over the past few weeks”.

[28]Following advice from the OH nurse, the claimant had a consultation with his GP in or around February 2025, when he resumed anti-depressant medication. He was then referred for an assessment in regard to post traumatic stress disorder.

[29]The claimant attended an assessment clinic on 22 July 2025 and was diagnosed with PTSD. The consultant advised increasing the dose of setraline from 150 mg to 200 mg per day and a referral to the psychology department for trauma-focussed CBT.

[30]The claimant remains on medication now and his condition has stablised.

Relevant law

[31]Section 6 of the Equality Act 2010 states that “A person has a disability if (a) they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on P’s ability to carry out day to day activities”.

[32]The onus of proof lies with the claimant.

[33]In terms of the correct approach to the question whether the claimant was disabled or not in fulfilment of the test, since Goodwin v Patent Office

1999 ICR 302

the EAT and CA have repeated on numerous occasions the need for Tribunals to consider four separate questions. Those questions are:(i) Did the claimant have a mental and/or physical impairment?

(ii) Did the impairment affect the claimant’s ability to carry out normal dayto-day activities?

(iii) Was the adverse effect substantial?

(iv) Was the adverse effect long term? Observations on the evidence

[34]I found the claimant to be somewhat defensive in the way that he gave his evidence, particularly during cross examination. That said I considered the claimant’s evidence to be broadly credible and reliable, and I recognised that he was attempting to recall the correct time line in regard to attending doctor’s appointments and taking medication.

[35]The claimant had only lodged certain extracts from OH reports and doctors’ reports. He did not lodge a medical report from his GP directly addressing the question, and nor did he lodge any medical records. This was despite the fact that, in a note following the case management preliminary hearing on 7 October 2025, the claimant was required to provide a copy of his medical records limited to the conditions of depression and SAD. Further, unfortunately OH reports that were lodged were only the extracts of reports, which also created difficulties in understanding the medical evidence.

[36]Accordingly I have had to base my decision on those extract reports and on the claimant’s oral evidence, which as noted I accepted as broadly credible and reliable. Deliberations and decision

[37]I considered whether the claimant meets the definition of disability under section 6 of the Equality Act 2010 such that he can continue with this claim. Consideration must be given to whether the claimant was disabled at the relevant time, that is the date of the act of discrimination. Although there is some dispute about whether or not there was a continuing act, I take the view that the relevant time being considered is from May 2024 until at least December 2024 (after which the claimant was, and continues to be, suspended).

[38]I considered each of the questions from Goodwin in turn. Did the claimant have a mental and/or physical impairment?

[39]The claimant relies on the mental impairment of depression and seasonal affect disorder (SAD). Although reference was made in the papers and in his evidence to PTSD, I accept Mr Milligan’s submission that the claimant does not rely on PTSD as an impairment in this case. I understand in any event that the claimant confirmed that he did not and that is because although suspected this was not actually diagnosed until July 2025. No doubt the symptoms interplay but the focus is on the relevant questions in relation to the impairments of depression and SAD.

[40]I accept Mr Milligan’s submission that there is no diagnosis of SAD. While no diagnosis is required, I accept that there is no medical evidence to support the suggestion that the claimant was suffering from SAD. The claimant mentioned in evidence that this was something he had discussed with his doctor, and he had mentioned that to one of the occupational health nurses. However, there was no further confirmation of that as a condition and in any event one of the claimant’s episodes of depression appeared to be during the summer months of 2023.

[41]I did not however agree with Mr Milligan that if I were to find that the claimant had not established the impairment of SAD, that meant that it could not be said that the claimant was suffering from depression, because his claim was that he had the impairments of depression and SAD. I did not agree that there was any suggestion that these conditions were linked in such a way that I could not find one but not the other established as impairments.

[42]I accept that the claimant was suffering from depression. While the claimant said that this had been raised with his doctor following incidents in 2019, I accept that there was no medical evidence to support that and indeed there is no mention of that in the GP report to the OH nurse (and the claimant did not lodge his medical records for this period). The claimant lodged an OH letter dated 2021 (only) which appears to indicate that the claimant suffered depression at that time, and there are suggestions in the GP report dated 25 March 2022 about stress and anxiety in 2021, and referral for both bereavement and post traumatic counselling.

[43]The claimant’s evidence was that he was first prescribed anti-depressants in 2021, and that is supported by the medical information which was lodged for example the report dated 15 March 2022 which also references a referral for specialist counselling. Following an OH referral in July 2023, when an assessment was undertaken which facilitates the recognition of common mental health disorders, the claimant’s scoring was stated to indicate severe symptoms of depression and severe symptoms of anxiety.

[44]Although no medical evidence is lodged confirming the position in 2024, I note that the OH nurse confirmed moderate to severe depression in 2023 and that by late 2024 or early 2025, the claimant was said again to be suffering from depression. Did the impairment affect the claimant’s ability to carry out normal day-to-day activities?

[45]The claimant’s evidence indicates that the impairment of depression did affect his ability to carry out normal day to day activities, although fluctuating and intermittent, from around 2019 to date. In evidence he advised that when his symptoms were severe, he would have difficulty getting out of bed, washing and sleeping and attending certain environments, including crowded spaces such as football matches and while on public transport, such that he would take avoidance measures; or would not leave the house often. He had reported this to occupational health nurses, from at least 2021, and continued to do so when assessed in January 2025.

[46]Mr Milligan relied on J v DLA Piper

[2010] ICR 1052

a case where a focus on the effect on day to day activities would distinguish clinical depression from depression triggered by adverse circumstances at work, the latter not being an impairment at all. He argued that the claimant’s symptoms were a response to life events in his personal life and work, rather than the response being attributed to any underlying depression. He said that the evidence does not set out which symptoms may be attributable to depression, rather than anxiety, alcohol abuse or PTSD, and it is speculation to suggest that the impact on day to day activities is the result of depression, rather than any other impairment.

[47]The claimant in response said that while life events would exacerbate his symptoms, those life events, including events at work, did not cause the symptoms, which were already there and made worse by life events. I accepted the claimant submission on this point.

[48]Further, the occupational health reports in 2023 and early 2025 in particular would appear to attribute impact on day to day activities to the condition of depression.

[49]I consider it to be clear from the medical reports that the claimant suffers from depression and the impact of that impairment on his day to day activities is at least partly due to that diagnosis, not least because that was what the occupational nurses were assessing (before PTSD had been diagnosed). It seemed to me that because of its fluctuation and recurrence and impact of day to day activities over time, and the response to medication, that this condition would be categorised as “clinical depression”, to use the language of Underhill LJ in the DLA case. Was the adverse effect substantial?

[50]On the question whether the adverse effect was substantial, section 212(1) of the Equality Act 2010 states that this means “more than minor or trivial”. Further guidance is to be found in the EHRC’s code of practice and also the Government’s ‘Guidance on matters to be taken into account in determining questions relating to the definition of disability’ (2011).

[51]The code of practice states “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”, and that “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”.

[52]The government guidance states that the cumulative effects of an impairment should be taken into account, and gives the example of a man with depression who “experiences a range of symptoms that include a loss of energy and motivation that makes even the simplest of tasks or decisions seem quite difficult. He finds it difficult to get up in the morning, get washed and dressed and prepare breakfast. He is forgetful and cannot plan ahead….household tasks are frequently left undone or take much longer to complete than normal. Together the effects amount to the impairment of having a substantial adverse effect on carrying out day to day activities.”

[53]Further, in determining whether a person’s impairment has a substantial effect on that person’s ability to carry out normal day-to-day activities, the effects of medication are to be ignored. If an impairment would be likely to have a substantial adverse effect but for the fact that measures are being taken to treat or correct it, it is to be treated as having that effect (para 5(1), Sch 1, Equality Act 2010). This is so even where the measures taken result in the effects of the impairment being completely under control or not at all apparent (see para B13 of the government guidance).

[54]Further, paragraph 2(2) of schedule 1 of the Equality Act 2010 specifically states that if an impairment ceases to have a substantial adverse effect on a persons day to day activities, it is to be treated as continuing to have that effect if it is “likely to recur”, that is “could well happen”, according to the government guidance.

[55]Mr Milligan submitted that there was little if any medical evidence suggesting the claimant was experiencing symptoms in 2024, that is the material time. Indeed the claimant’s evidence appeared to indicate that he did not suffer severe symptoms during 2024 such that he came off his medication (and did not resume medication until early 2025).

[56]Mr Milligan also referenced an OH report compiled around mid 2023 when the claimant confirmed that he could carry out a variety of day to day activities. The claimant was however noted to be suffering from depression, that he was prescribed sertraline at that time and that he had been on medication for some 5 to 6 weeks. It is apparent then that the medication had begun to have the desired effect at that point in time.

[57]I conclude from the evidence in this case that the claimant’s condition fluctuated, that is sometimes he did not experience symptoms, but the symptoms would recur. I consider in this case that the evidence supports the conclusion that, even if the claimant was not experiencing symptoms at the material time, that the symptoms were “likely to recur. Indeed this was specifically confirmed in this case by the occupational health nurse in her report of 11 July 2023, and that is in fact what did occur in December 2024/January 2025.

[58]I conclude therefore that the effect on day to day activities of the impairment was “substantial”. Was the adverse effect long term?

[59]The claimant requires to show that any such condition is “long term”, that is that it has lasted for 12 months or is likely to last 12 months. The point at which the likelihood is to be assessed is the date of the act of discrimination (Latchman v Reed Business Information

[2002] ICR 1453

). As well as stating that an event is likely to last 12 months if that “could well happen”, government guidance states that the effect of the impairment does not have to remain the same during the 12 month period; and the main adverse effect may even temporarily disappear.

[60]In this case, the indications are that the claimant started to suffer depression in or around 2019, although as Mr Milligan pointed out there is limited medical evidence confirming that. However, the evidence does support the finding that the claimant was prescribed anti-depressant medication in 2021, and that continued to be the case, on and off, until now. Although the claimant apparently was not on medication during 2024, the evidence suggests that he had a relapse towards the end of that year and that his medication resumed.

[61]While the evidence is that the claimant’s condition does not continually have an adverse effect, it is clear that it has lasted over 12 months, and that while there are periods when it may not have that effect (even without medication), it is clear that the condition recurred over the past few years.

[62]Accordingly I conclude that the substantial adverse effect on ability to carry out day to day activities was long term.

Conclusion

[63]I accept that the claimant was suffering from the impairment of depression at the material time, which had a substantial and long term adverse impact on his ability to carry out day to day activities. I conclude that he was suffering from depression from at least mid 2021 and that he was therefore disabled at the material time (from a May 2024 to date). Accordingly, I find that the claimant is disabled for the purposes of the Equality Act 2010.

[64]This claim will proceed to a final hearing. As discussed, a case management preliminary hearing will now be fixed to take place by video on a date to be advised, when all relevant witnesses will be identified and a final hearing will be listed. Date of Judgment: 16 January 2026