Claimant Fails to Prove Disability Status in Discrimination Case

OUTCOME: Dismissed

EMPLOYMENT TRIBUNALS (SCOTLAND)

Case No: 8001922/2025

Held in Edinburgh on 20 April 2026

Employment Judge M [NAME]

[NAME] [NAME]

Claimant,

In person

[APPELLANT]

First Respondent

Represented by: [COUNSEL], Counsel

Instructed by:

[COUNSEL] LLP

[RESPONDENT] Respondent

Represented by: [COUNSEL], Counsel

Instructed by: [COUNSEL] LLP

JUDGMENT OF THE EMPLOYMENT TRIBUNAL The judgment of the Tribunal is that the claimant was not disabled at the relevant time.

REASONS 1. An open preliminary hearing was arranged to determine whether the claimant was a disabled person at the relevant time. The claimant appeared on her own behalf; the respondent had professional representation. The hearing was held remotely by [NAME]. At case management the tribunal noted complaints of race discrimination and disability discrimination. The claim form made no mention of disability discrimination and this was first mentioned in the claimant’s agenda. It was not clear what acts were relied upon in asserting disability discrimination and

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Page 2 an application to amend may require to be determined in due course. Parties agreed that the issue of disability status could nevertheless be determined today.

3. The claimant asserts that she was disabled at the relevant time by reason of the mental impairment of stress, anxiety and insomnia. Notwithstanding reference to IBS in her impact statement the claimant confirmed that she did not rely upon this condition in asserting disability status. This position was consistent with her prior statement in correspondence that her IBS was mild and manageable and did not affect her ability to function normally.

4. The claimant asserts for the purposes of this hearing the relevant time was the period from 31 May to 25 July (which encompasses the period including her first and final dismissal). This position was consistent with her prior statement in correspondence that it was the respondent’s treatment of her which caused her to develop issues with her mental health.

5. At today’s hearing the claimant gave evidence on his own behalf. A joint bundle of documents was provided which included an impact statement.

6. The issues to be determined were – Disability status a. At the relevant time, did the claimant have a mental impairment? b. If so, did that impairment have a substantial adverse effect on her ability to carry out normal day to day activities? c. If so, was the substantial adverse effect long term? Findings of fact 7. The tribunal makes the following findings in fact- 8. The claimant worked as a Duty Manager at the respondent’s hotel in Gullane from 1 April to 3 June and from 7 June to 25 July, all dates 2025 9. On 14 April the claimant attended her GP regarding her IBS. Her GP noted: “describes likely flare of IBS after having certain foods”.

10. On 31 May 2025 the claimant was dismissed.

11. On 3 June the claimant attended her GP who noted “stress at work”. GP noted that she described racism and bullying, she feels she can’t increase her hours from 40 to 60 hours a week as struggling with symptoms of stress and he signposted mental health websites.

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Page 3 12. On 7 June the claimant was reinstated on appeal.

13. On 10 June the clamant attended her GP regarding possible labyrinthitis and noted background stress.

14. On 25 July 2025 the claimant was dismissed again.

15. Throughout her employment the claimant was not prescribed medication or medical treatment for her mental health. Throughout her employment the claimant was off sick for only a few days. The claimant attended a reiki healer towards end May 2025.

16. On 28 July 2025 the claimant attended her GP who noted stress with work and having paid for her visa but lost her job “she is understandably very anxious about this”. He noted she was “describing pressure on chest with stress”. Observations on the evidence 17. The standard of proof is on balance of probabilities, which means that if the Tribunal considers that, on the evidence, the occurrence of an event was more likely than not, then the Tribunal is satisfied that the event did occur.

18. The claimant’s GP letter of 9 January advised that they had been seeing her at the practice since June 2025 with symptoms she relates to stress at work including anxiety, difficulty concentrating, panic, sleep disturbance, heart palpitations, dizziness, gastrointestinal upset and feeling weak and a phobic anxiety when traveling on public transport which is having an ongoing significant impact on her day to day functioning. According to the GP notes the claimant first raised an issue with travelling on public transport in December 2025. It was therefore reasonably apparent from its context that the GP letter sought to comment on the period to December 2025 and was not restricted to the relevant period namely June and July 2025. The claimant accepted this in cross examination.

19. The claimant stated in her Agenda that she was disabled by reason of “stress, anxiety and insomnia diagnosed by NHS GP.” The claimant stated in her Schedule of Loss that the respondent’s treatment of her had caused a psychiatric injury including anxiety, sleep disturbance and panic attacks - “These symptoms were directly caused by the workplace environment and treatment and were not pre-existing”. The claimant did not raise issues of anxiety, sleep disturbance and panic attacks with her GP until after her second dismissal. It was not considered likely that the claimant was suffering from anxiety, insomnia or panic attacks during the relevant period.

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Page 4 20. The claimant stated on her impact statement that she was suffering from panic attacks during bus travel. The claimant stated in evidence that she was suffering from a bus travel phobia during the relevant time. That was not considered to be likely firstly because she gave evidence that she regularly spent 1 hour each way commuting to work by bus and secondly because she did not raise this with her GP until 5 months after her second dismissal.

21. The claimant stated in evidence that she ceased to go out socially during the relevant time. The claimant stated in her impact statement that “social interaction and leaving the home safely” was materially [NAME] during the relevant time. This was not considered to be credible that given that she regularly left home for work.

22. The claimant stated in evidence that she ceased to prepare food or buy shopping as a result of the stress. That was not considered credible given that there was no mention of food preparation or shopping in either her agenda or her impact statement. She stated in evidence that this was a consequence of an increase in IBS medication. That change had occurred in mid-April. It was therefore considered likely that any change to her food shopping or preparation happened prior to the relevant period and was not caused by stress. Submissions 23. It was considered to be in furtherance of the overriding objective for the respondent who was represented to give submissions first and for the claimant who was unrepresented to respond.

24. The Respondent’s brief submissions were in summary as follows – a. The claimant was not diagnosed with an underlying medical condition b. There is no medical evidence of stress before June 2025 c. The claimant was not referred to a specialist for treatment. d. The claimant admitted in cross-examination that she had used AI to help her draft her impact statement e. Her mental health had deteriorated after her first dismissal but then improved. That deterioration was manifestly unlikely to last 12 months.

25. The Claimant’s brief oral submissions were in summary as follows – a. Any issues with her day to day activities were caused by her mental health and not her pre-existing IBS which did not have an impact. b. She managed her emotions by calling a friend when she was on the bus. c. She made a lot of mistakes when she was employed which were caused by stress

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Page 5 d. Her mental health is still [NAME] by how she was treated. The second dismissal was the most impactful Discussion and decision Disability status 26. Section 6 of the Equality Act provides that: (1) A person has a disability if: (a) that person has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

27. In determining disability status the Tribunal must take into account any aspect of the Guidance on the definition of Disability (2011) and the [NAME] of Practice on Employment (2015) which appears to be relevant.

28. The burden of proof is upon the claimant. At the relevant time, did the claimant have a mental impairment? 29. The Equality Act does not define an ‘impairment’ which should be given its ordinary meaning. Appendix 1 paragraph 6 to the [NAME] states: ‘The term “mental impairment” is intended to cover a wide range of impairments relating to mental functioning, including what are often known as learning disabilities’.

30. Where there is no clear medical diagnosis it may be legitimate for a tribunal to first consider adverse effect and then to consider whether the existence of an impairment can reasonably be inferred from those adverse effects (J v [COMPANY] 2010 ICR 1052, EAT).

31. The cause of the impairment does not require to be established ([NAME]). A person may have more than one impairment. In such a case, account should be taken of whether the impairments together have a substantial effect overall on the person’s ability to carry out normal day-to-day activities ([NAME]).

32. A distinction may be drawn between a mental impairment such as clinical depression and stress/ low mood (both of which may be a reaction to adverse life circumstances). In some cases tribunals may find that effects suffered by a claimant were sometimes attributable to a mental impairment and sometimes to stress/ low mood which does not amount to a mental impairment (J v [COMPANY] 2010 ICR 1052, EAT).

33. At the relevant time the claimant was suffering from stress. She was not in receipt of medication or treatment. She was regularly attending work. She was not on the face of it suffering from a mental impairment and having regard to

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Page 6 the undernoted, none was reasonably capable of inference from any adverse effects on daily activities. Did that impairment have an substantial adverse effect on her ability to carry out normal day to day activities? 34. The impairment must cause an adverse effect on normal day to day activities but it need not be a direct causal link.

35. Day to day activities are things people do on a regular or daily basis such as shopping, reading, watching TV, getting washed and dressed, preparing food, walking, travelling and social activities. This includes work related activities such as interacting with colleagues, using a computer, driving, keeping to a timetable etc ([NAME]).

36. The adverse effect must be substantial. Section 212(1) of the Equality Act provides that “substantial” means more than minor or trivial. The [NAME] notes that a disability is “a limitation going beyond the normal difference in ability which might exist among people”.

37. It is important to consider the things that a person cannot do, or can only do with difficulty (Guidance B9). This is not offset by things that the person can do.

38. The time taken by a person with an impairment to carry out an activity should be considered when assessing whether an effect is substantial (Guidance B2).

39. The Guidance provides at para B7 “Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day-to-day activities.” 40. Whilst it is accepted that the claimant was suffering from stress, it is not accepted that this was having an a substantial adverse effect on her normal day-to-day activities during the relevant time. Any substantial adverse effect on her normal day-to-day activities occurred after the relevant time.

Was the substantial adverse effect on her ability to carry out normal day to day activities long term?

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Page 7 41. Schedule 1 paragraph 2(1) of the Equality Act provides that the effect of an impairment is long term is it has lasted for at least 12 months, is likely to last for at least 12 months or is likely to last for the rest of the life of the [NAME].

42. Schedule 1 paragraph 2(2) provides that if an impairment ceases to have a substantial adverse effect, it is to be treated as continuing to have that effect if that effect is likely to recur.

43. In [COMPANY] v [NAME] 2009 UKHL 37, the [NAME] ruled that “likely to” in this context means “could well happen” rather than “more likely than not”. This must be judged at the relevant time and not with the benefit of hindsight. An employment tribunal should disregard events taking place after the relevant period but prior to the tribunal hearing.

44. At the relevant time the claimant had been suffering from stress for a couple of months. The issue therefore is whether any effect was likely to last for at least 12 months or the rest of her life. “Likely” means it could well happen rather than more likely than not. Judged at the relevant time, and having regard to the short duration and limited effect, there is no reasonable basis upon which it could be inferred that any effect could well last for at least 12 months. Conclusion

45. The stress did not have an effect on her normal day to day activities which was either substantially adverse or long term at the relevant time. 46. Accordingly the claimant was not disabled by reason of her mental health at the relevant time.

Date sent to parties: 1 May 2026