Employment Tribunal Rejects Race Discrimination Complaints Against Royal Mail

OUTCOME: Dismissed

Case Numbers: 3313799/2022 & 3300081/2024 1

EMPLOYMENT TRIBUNALS

Claimant: [redacted] Respondents:

[redacted] [RESPONDENT] (2) [RESPONDENT] [NAME] (3) [NAME] (4) [NAME] (5)

Heard at: Reading On: 16-18 February 2026 Before: Employment Judge [NAME] [NAME]: Claimant: [redacted] Respondent: [redacted]

1. These written reasons are provided at the request of the claimant.

2. As to the removal of the third respondent, Mr [APPELLANT] accepted that no allegations were made in respect of him, so it was inevitable that they would be removed as a respondent.

3. As regards the substance of the claim, it seems to us that there are some cases about which the least said the better. This is one of those cases so we will keep our reasons very brief. None of what follows is intended as any criticism of Mr [APPELLANT], who we think has done his best with the material he had, but it does seem to raise some questions for those who prepared the case on the claimant’s behalf. We cannot know what was said between them and the claimant, but as will appear below, there was at this hearing simply no evidence produced, not even oral evidence from the claimant, in support of significant aspects of her claims. Many relevant points were simply unaddressed or ignored in her evidence.

Case Numbers: 3313799/2022 & 3300081/2024 2 THE ISSUES 4. The claimant brings three claims of race discrimination or race harassment, and in relation to her dismissal: a claim of victimisation and unfair dismissal.

5. The allegations of race discrimination or race harassment had to be the subject of an application to amend by Mr [APPELLANT], on the basis that it was clear from the start of the hearing that as originally drawn aspects of them could never succeed – for instance, there were significant errors with dates. The version of the allegations with permitted amendments is attached as appendix 1 to these reasons. While there are three allegations, these have been identified as allegations 2-4, rather than 1-3.

6. The following appears in a case management order dated 12 September 2024 (as clarification of the allegations in their original form, but the amendments do not affect this point): “As regards allegation (2) the conduct said to amount to unlawful direct racial discrimination or harassment was Mr [APPELLANT] saying during the telephone call to the claimant that she was malingering, not really sick and that she was only doing this to get onto a morning shift and he was not going to allow it and he wanted her back. The reference in para 15 of the [NAME] to “racial abuse” is not intended to suggest that Mr [NAME] used any race-specific language in this call but is intended by the claimant to suggest she things that he would not have spoken to a hypothetical white person in this manner.” DISCRIMINATION Generally 7. Neither party addressed us in any detail on the law in relation to discrimination or unfair dismissal. It appeared to be their positions that both aspects of the claim could be addressed by reference to legal principles that the tribunal was very familiar with, and we accept that is in fact the case, hence our decision will contain very little by way of recitation of law.

8. In respect of the discrimination claims, broadly speaking if the claimant’s treatment was in any way influenced by her race (whether consciously or unconsciously) that will amount to either direct race discrimination or harassment (depending on the particular complaint). This depends first on the claimant establishing the treatment she complains of occurred, but then she has the benefit of the burden of proof provisions in section 136 of the [NAME] 2010: “(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened

Case Numbers: 3313799/2022 & 3300081/2024 3 the provision [NAME], the court must hold that the contravention occurred.

(3) But subsection (2) does not apply if A shows that [NAME] did not contravene the provision.

9. The same provisions apply in respect of the claimant’s claim of victimisation, where the question is whether the treatment of the claimant was because of her protected act (s27).

10. There is, of course, much case law on the operation of the burden of proof, but it is not necessary for us to address that since, as the Supreme Court said in [NAME] v Grampian Health Board [2012] UKSC 37 (para 32): “it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.” Allegation 2 11. The first allegation (taken by reference to allegation 2 as amended and the explanation in the case management order) is a complaint that on the 15 June 2022, [APPELLANT], the claimant's [NAME] line manager, told the claimant on a phone call that she was malingering, not really sick, only doing this to get onto a morning shift, and that he was not going to allow it and he wanted her back at work. It is said by the claimant that the reason he did this, or at least part of the cause for him doing this, was that the claimant was Asian. It is said that him saying this amounted to bullying and harassment.

12. There was a phone call between Mr [APPELLANT] and the claimant on that day, which was about the claimant's absence that had by then been going on for about three months. The call was witnessed by at least two people other than those who were directly participating on it. We therefore have four accounts of the call.

13. The claimant’s account of the call is given in her witness statement.

14. In common, unfortunately, with other aspects of her witness statement, she does not address many of the matters necessary for her claim to succeed.

15. She simply says that “Mr [NAME] called me on the phone and started shouting at me, saying there was not space on the early shift and that I must return to work and continue the late shift.” 16. That does not address the particulars she had given of the race discrimination alleged against Mr [NAME], that is, that he said “that she was malingering, not really sick, only doing this to get onto a morning shift, and that he was not going

Case Numbers: 3313799/2022 & 3300081/2024 4 to allow it and he wanted her back at work.” This was not addressed at any point in her oral evidence.

17. Mr [APPELLANT] points to two of those matters as having been mentioned by the claimant in her very earliest complaint about the phone call – a document we have in the bundle. He is correct about that, but we consider such a complaint to be very much [NAME] best to her giving witness evidence on it, on which she could be cross-examined by Mr [RESPONDENT], in the same way that Mr [RESPONDENT] could be cross-examined on his denial.

18. Neither of the two other witnesses to the call mention the matters the claimant complains of. Mr [APPELLANT] does not accept that he used those words.

19. Therefore we have no oral evidence that the words the claimant attributes to Mr [APPELLANT] in her claim were said, the two independent witnesses do not mention them and the only reference to the is in an early complaint made by the claimant. On the balance of probabilities, we conclude that those words were not used.

20. That of itself disposes of the first allegation: the words said to amount to race discrimination were not said by Mr [NAME].

21. But we also find that there is nothing in the evidence from which we could conclude that if it did happen, it was anything to do with the claimant’s race.

22. Indeed, what seems to have been missing or omitted by those preparing the claimant's case (not, we think, Mr [APPELLANT], who we think has only been briefed for this hearing), in respect of this and the other allegations, is anything from which we could conclude that if those words were used it was a matter of unlawful race discrimination of any kind.

23. In the claimant’s witness statement, the only thing that she asserts as being discrimination is other employees’ health concerns being considered and adjustments made for them, but there is no allegation before us that that (if it happened) was any form of unlawful discrimination. Allegation 3 24. The [NAME] is allegation 3, in relation to Mr [NAME]: that he deliberately failed to or refused to investigate allegations of bullying, harassment and racial discrimination.

25. It is said that this occurred on 21 June 2022, and we understand this to be effectively an allegation that he did not respond to the claimant’s bullying and harassment complaint, which is at page 293 of the tribunal bundle.

26. There are three very obvious reasons why Mr [NAME] did not respond to that. None of those have anything to do with the claimant's race:

Case Numbers: 3313799/2022 & 3300081/2024 5 a. The complaint was not addressed to him. b. There is no evidence to suggest that Mr [NAME] was ever aware of the relevant complaint. c. The complaint specifically said that Mr [NAME] should not address it.

27. In such circumstances we do not see how this could ever have been said to amount to race discrimination or racial harassment. We find that there was no racial discrimination or harassment in his failure to address a grievance of 21 June 2022. Allegation 4 28. A similar allegation is made in respect of the behaviour of [NAME], who we think was four layers of management removed from the claimant. It is that he deliberately failed or refused to investigate allegations of bullying, harassment and race discrimination raised on 16 June and 8 July 2022.

29. It is correct to say that neither complaint was investigated by Mr [NAME].

30. In respect of the first complaint, he says, and we do not think the claimant has challenged or disputed this, that it arrived when he was away from work, was referred by somebody else to be dealt with by another person, and never came to his attention at all.

31. As for the 8 July complaint, we have seen that Mr [NAME] referred this to a more junior manager to address. That is exactly what we would expect, and there is nothing in this that suggests any form of race discrimination or race harassment. Mr [NAME] failure to investigate the complaints was nothing to do with the claimant’s race. DISMISSAL The claimant’s absence 32. The claimant's remaining points relate to her dismissal. By the time of her dismissal, she had been off work for more than a year.

33. While Mr [APPELLANT] has suggested that it was always the case that she said she would return when she was well enough, but the point for any employer in those situations is always going to be what that date of return might be.

34. Mr [RESPONDENT] took the claimant in some detail through various steps taken by her line manager who addressed her absence for around the first year.

35. No complaint is made by the claimant of the actions of her line manager, and from what we have seen, no complaint could properly be made.

Case Numbers: 3313799/2022 & 3300081/2024 6 36. We recall a very difficult period of cross-examination for the claimant, in which Mr [RESPONDENT] took her steadily through the communications sent by that line manager, [NAME]. Mr [RESPONDENT] pointed out to the claimant the things that she had been asked to do by Mr [APPELLANT], but appeared not to have done, and it seems to us that in many of her responses to these questions the claimant's memory was clearly failing her.

37. We have, for example, the claimant’s suggestion that she had actually returned what had been called a re-scoping form that she was asked to complete. She said in her oral evidence, that she had that available to her, and we understood it could be produced by later on in the hearing. It has not been produced, and the respondent can point to multiple emails through to November 2022 in which the [NAME] says that she does not want redeployment and did not want to complete the form.

38. The remarks of Mr [NAME] in his e-mail of the 3 November 2022 seem to sum up the respondent’s views at that time. In writing to the union representative, he says, “Yet again, no RTW [return to work] and another sick cert until the end of November. We need to progress and this employee is not allowing us to. Can you please help?” 39. We see too the union representative’s reply. He says “[the claimant] does not want redeployment and did not want to complete the form. So I am unable to see how I can assist.” 40. The claimant remained absent in the early part of 2023.

41. Mr [APPELLANT] spoke to the claimant in March 2023 and records the result of this conversation in a letter dated 16 March, in particular, that the claimant wanted to return to work but was not well enough to do so.

42. Mr [APPELLANT] had suggested a return to the early shift, but the claimant said that she was not well enough to return to work, that she was taking medication, had [NAME], but she felt the [NAME] was too complex in the questioning.

43. We see Mr [APPELLANT] asking the claimant to put forward a “reasonable and workable solution”.

44. The claimant replies to this by WhatsApp message saying “the issues you are asking for are mostly the subject of a legal case between myself and the company in court”. By that time the claimant had submitted her first tribunal claim.

45. Mr [APPELLANT] repeated his request for the claimant to put forward a reasonable and workable solution, but nothing more was heard. By 13 April, Mr [NAME] (and it was Mr [NAME], not Mr [NAME], who made this decision) was treating this as a question of non-cooperation, not simply of sickness absence from work.

Case Numbers: 3313799/2022 & 3300081/2024 7 46. He again gave the claimant a deadline to put forward the reasonable and workable solution he was looking for.

47. By the end of April 2023, Mr [APPELLANT] was involved. He sought to invite the claimant to a formal meeting, although it appears initially without success.

48. In his letter of the 5 May, he says, “I am … considering terminating your employment because the business has no reasonable prospect of knowing when you will be fit to return to work and in what capacity, and the business is not satisfied that you intend to return to your employment with [RESPONDENT] [COMPANY] in the foreseeable future.” 49. We regret to say that if the claimant was, as she says she was, shocked at her dismissal, it can only have been because she was not paying attention to the letters she was receiving.

50. Further letters followed.

51. The formal meeting was eventually held at the end of May. In this meeting, Mr [NAME] explicitly refers to the possibility of termination of employment. The claimant was accompanied at the meeting by her trade union representative and full notes of the meeting were provided.

52. A [NAME] formal meeting was convened in June and eventually in August Mr [APPELLANT] made a decision to dismiss the claimant.

53. He says that “the substantial reason for this decision is your continued absence from work and my conclusion that you have no intention of engaging with management or of returning to work for [NAME] in the foreseeable future. This is an unsustainable position.” 54. We note that in this period there were also multiple inconclusive referrals to [NAME] by the respondent. The fairness of the dismissal Introduction 55. What we have recorded above seems to us that on the face of it, to be an entirely orthodox approach to adopt to the prolonged absence of an employee, and in many respects, the respondent was more patient than we may often see or may be required of an employer for a dismissal to be fair. The reason for dismissal 56. For the avoidance of doubt, we find that the respondent is correct to say that “The Claimant was dismissed on the grounds of her continued long term absence where there was a lack of any foreseeable return to work in any capacity. It is submitted that the Respondent had a potentially fair reason for

Case Numbers: 3313799/2022 & 3300081/2024 8 dismissal, namely capability or alternatively, some other Substantial Reason (SOSR).” Indeed, we do not think this reason or reasons for dismissal were ever seriously challenged by the claimant. Fairness 57. We must then apply section 98(4) of the Employment Rights Act 1996: “the determination of the question whether the dismissal is fair or unfair … (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.” 58. The burden of proof in such a consideration is, of course, neutral, but given what appeared to us to be an apparently fair and orthodox process adopted by the respondent we were particularly interested in any reasons Mr [APPELLANT] put forward as to why the claimant's dismissal was nevertheless unfair.

59. There were a number of factors he said made the dismissal unfair. We will address these in a slightly different order to those he did.

60. He says that it was unfair of the respondent to label the claimant as being uncooperative.

61. It was not. The claimant was in fact being uncooperative, as we have described.

62. Points are made in respect of whether the respondent properly considered the opportunity to redeploy the claimant, at least across any of the four sites that seemed to be connected at or adjacent to Heathrow Airport.

63. That was, of course, what the re-scoping form was about, the form that the claimant had earlier failed (or refused) to complete.

64. As it happens, in answer to a question on re-examination, the claimant accepted that the respondent had considered other work or other forms of work. Thus, Mr [APPELLANT] in making this point found himself in the difficult position of inviting us to disbelieve the evidence of his client.

65. We also note the repeated insistence by Mr [APPELLANT] on the claimant coming up with some sort of workable solution, giving her, we consider, the perfect opportunity to put forward any other role that she thought she may be able to undertake. She did not do so.

Case Numbers: 3313799/2022 & 3300081/2024 9 66. Mr [APPELLANT] suggests that the respondent should have waited longer for therapy to be done, pointing to a fit note issued later that does suggest that the claimant was fit for work, at least under certain circumstances.

67. As Ms [NAME] (the appeal officer) pointed out, this is rather a difficult document, since it appears to suggest that the claimant was only fit for work under very particular circumstances, which the respondent considered it could not meet.

68. But it seems to us that the question of whether the respondent should have waited any longer must always be something of a last resort argument in circumstances where the claimant had already been off sick for more than a year, with no suggestion of any return date. It seems to us that the respondent would have been more than justified in dismissing the claimant earlier than they did.

69. It is a long time since we have heard arguments to the effect that sick employees with no sick pay entitlement are not in any way a cost to the business and ought to be allowed an extended, perhaps indefinite, period for return. That is not an argument that we find in any way persuasive in these circumstances in considering the fairness of the claimant’s dismissal.

70. There is finally the question of whether a respondent should have contacted the claimant’s doctor. There is a letter on the file from the doctor containing the usual sign-off suggesting that they can contact the doctor with any questions.

71. It seems to us that with current pressures on GPs, that is not to be taken at face value, simply as an invitation to pick up the phone and speak to the doctor.

72. But in any event, this argument ignores the principal expectation of employers in such a situation, which is to seek their own medical advice from [NAME], and it seems to us that the respondent has done that more than adequately.

73. We do not understand anything in relation to the fairness of the dismissal to depend on the appeal conducted by Ms [NAME].

74. Our conclusion on whether the dismissal was unfair must await consideration of whether it was an act of victimisation since, in principle, a dismissal that is an act of victimisation would not be a fair dismissal. Victimisation 75. We must address the question of whether the claimant’s dismissal was an act of victimisation.

76. It is certainly the case that the claimant had carried out a protected act, that is bringing her first claim prior to her dismissal.

Case Numbers: 3313799/2022 & 3300081/2024 10 77. It is also the case that Mr [RESPONDENT], who decided to dismiss her, was named as a respondent to that claim.

78. But the claimant’s witness statement contains no material from which we could conclude that her dismissal was an act of victimisation and does not even assert that her dismissal was an act of victimisation. It entirely ignores the victimisation claim.

79. Mr [APPELLANT] is able to point to a coincidence in timing between the provision of further and better particulars of her claim and the decision to dismiss in August. But we do not see any causal link between the two.

80. The decision to dismiss was the culmination of a substantial amount of work by the respondent, commencing with the work of [RESPONDENT], in respect of whom no complaint is made, and reaching what seems to us, in these circumstances, to be its inevitable conclusion with the decision of [APPELLANT] to dismiss the claimant.

81. There is nothing from which we could conclude the claimant's dismissal was an act of victimisation. Conclusion 82. The claimant's dismissal was not unfair and each of her claims is dismissed. Approved by Employment Judge Anstis 16 March 2026

Sent to the parties on:

26 April 2026

For the Tribunal:

Case Numbers: 3313799/2022 & 3300081/2024 11 Appendix 1 - ALLEGATIONS WITH PERMITTED AMENDMENTS Allegation 2 15. On 15 June 2022, during a telephone call with the [APPELLANT], who is a person of the [COMPANY] - the [NAME] (the protected characteristics), [NAME] bullied and harassed the Claimant, and subjected her to racial abuse in the presence of her husband and son.

16. The [APPELLANT] asserts that this treatment amounted to direct discrimination under section 13 and harassment under section 26, and these was carried out by [NAME]. Allegation 3 17. On 21 June 2022, the [APPELLANT] asserts that [NAME] deliberately failed to, and/or refused to investigate allegations of bullying harassment and racial discrimination complaints she brought against [NAME] through the [NAME]'s official complaints procedure.

18. The [APPELLANT] asserts that the treatment amounted to discrimination under section 13 (the protected characteristic being race), and harassment under section 26. The [APPELLANT] asserts that these discriminatory acts were carried out by [NAME]. Allegation 4 19. On 16 June 2022 and 8 July 2022, the [APPELLANT] asserts that [NAME] deliberately failed, and or refused to investigate allegations of bullying, harassment and racial discrimination complaints she brought against [NAME] by failing to comply with the [NAME]'s Stop Bullying and Harassment policy, because no timely investigation was carried out.

20. The [APPELLANT] asserts that the treatment amounted to discrimination under section 13 (the protected characteristic being race), and harassment under section 26, and these were carried out by [NAME].

Case No: 3313799/2022 1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

(2) [NAME]

(3) [RESPONDENT] [NAME]

(4) [NAME]

(5) [NAME] at: Watford (by CVP)

On:

24 November 2023

Before: Employment Judge C Knowles

Representation Claimant: [redacted]

[NAME] (Trade Union representative) Respondents: [redacted]

RESERVED JUDGMENT

1. The Claimant was a disabled person as defined by Section 6 of the [NAME] 2010 from 25 October 2022 due to anxiety and depression.

2. The Claimant was not a disabled person as defined by Section 6 of the [NAME] 2010 due to anxiety and depression prior to 25 October 2022.

REASONS

1. At the time with which this claim is [NAME], the Claimant was employed by the First Respondent as an [NAME]), based at the [COMPANY]. 2. On 27 November 2022, the Claimant presented claims for race discrimination and disability discrimination against the First Respondent, and against the [NAME], Third, Fourth and Fifth Respondents who are managers at the First Respondent.

Case No: 3313799/2022 2

3. This is the Tribunal’s reserved decision on the preliminary issue of disability. Procedure, documents and evidence Case management background 4. On 27 March 2023, the Tribunal ordered the Claimant to provide some further information about her claims, and about the disability relied upon for the purposes of the disability discrimination claims. The Claimant was required to send to the Respondents copies of parts of her GP and other medical records that were relevant to whether she had the disability at the time of the events the claim is about, and anything else in writing that would help show that she had the relevant disability or the effect the disability had upon her.

5. At a private preliminary hearing before Employment Judge Hanning on 15 June 2023, the Claimant was represented by her trade union representative, Mr [COUNSEL]. Mr [COUNSEL] explained that the Claimant was expecting to receive some legal assistance. Further directions were made, requiring the Claimant to provide full details of her claims, and of the disability relied upon. Employment Judge Hanning listed this public preliminary hearing to take place, to consider whether the Claimant was a disabled person at the time of the events the claim is about. Employment Judge Hanning also made directions for the Respondents to confirm by 10 August 2023 if they objected to any of the Claimant’s proposed amendments (i.e. her full particulars of her claim), what if any of the pleaded claims it considered to be out of time, and what if any further applications it was making. Employment Judge Hanning directed that if the Respondents had objected to any part of the Claimant’s [NAME], this public preliminary hearing would also decide whether permission to amend should be granted. Further, unless the Tribunal decided that the question of time limits should be left to the final hearing, the public preliminary hearing would consider whether any of the complaints were made within the time limit set out in Section 123 of the [NAME] 2010.

6. On or around 4 August 2023, the Claimant provided to the Respondents and the Tribunal [NAME], drafted by a legal representative, a document confirming that only impairment said to be a disability is anxiety and depression, and an impact statement. With regards to the claims of disability discrimination, the [NAME] allege direct disability discrimination, discrimination because of something arising in consequence of disability, indirect disability discrimination, a failure to make reasonable adjustments, and harassment related to disability. Scope of the preliminary hearing 7. At the start of the public preliminary hearing before me, I discussed with the parties the issues that they were expecting me to decide today. Following

Case No: 3313799/2022 3

that discussion, it was agreed that the Tribunal would only deal with the preliminary issue of disability at this stage.

8. As to the other issues identified by Employment Judge Hanning: (a) [NAME], who represented all Respondents, confirmed to me that the Respondents had not written to the Tribunal objecting to any part of the Claimant’s [NAME], and that the Respondents were not objecting to the Claimant’s [NAME] as raising new claims not included in the claim form. The Respondents’ position is that whilst they do not regard the [NAME] as perfect, they consider them to be relatively concise, and to be understandable, and they will be able to respond to them. (b) The Respondents had not written to the Tribunal setting out which claims (if any) they considered to be out of time in accordance with the order of Employment Judge Hanning. The preliminary hearing bundle provided to the Tribunal for the public preliminary hearing only contained the ACAS early conciliation certificates for the First and [NAME] Respondents. With regards to time limits, [NAME] confirmed at the hearing before me that the Respondents’ position is that the issue of whether any claims are out of time can be dealt with at any final hearing. Mr [NAME] said that the Respondents’ stance on this issue is [NAME] by the fact that the Claimant has since brought a [NAME] claim.

9. Mr [APPELLANT] and Mr [APPELLANT] told me that the Claimant has recently presented a [NAME] claim form to the Tribunal. I was not provided with a copy of this claim form and so it was not clear to me what claims are contained in that [NAME] claim form or against which Respondents, but Mr [NAME] told me that it includes a claim for unfair dismissal, and claims of race and disability discrimination. Both Mr [NAME] and Mr [NAME] expect that in time the complaints contained in the two claim forms are likely to be case managed and heard together, although this will be a matter for the Tribunal. Both Mr [NAME] and Mr [NAME] confirmed to me that they nevertheless wanted me to decide the issue of whether the Claimant was a disabled person in the claim currently before the Tribunal (3313799/2022), recognising that (depending upon my finding), the issue of disability may also have to be addressed again in the [NAME] claim.

10. In order to decide whether the Claimant was a disabled person at the time of the events in this claim (3313799/2022), it was necessary to be clear about when it was that the Claimant says she was discriminated against. Mr [APPELLANT] confirmed that the relevant dates for the purposes of the disability discrimination claim are between 21 May 2021 and 27 November 2022.

Case No: 3313799/2022 4

Documents, evidence and procedure 11. For the purposes of deciding the preliminary issue of disability, I was provided with the following: (a) A Preliminary Hearing bundle of 123 pages (including index). Unless otherwise stated, references to page numbers in these reasons are to pages of that bundle. (b) A letter from [NAME] [RESPONDENT] [NAME], dated 16 June 2023, which was added to the bundle by agreement as p124.

12. The bundle included an impact statement from the Claimant (p87-89), which I read. I also heard oral evidence from the Claimant. Mr [APPELLANT] was allowed to ask the Claimant some supplementary questions, and Mr [APPELLANT] asked questions in cross-examination. I also asked the Claimant some questions.

13. There were some delays in starting the Claimant’s evidence due initially to technical issues affecting the Claimant, and then because of difficulties in the Claimant accessing the hearing bundle. In part, this was because there were no page numbers written onto the bundle pages themselves, and I agreed that the Claimant’s son could help her find page numbers on the electronic PDF bundle if this was required. It then became clear that the first PDF bundle that the Claimant had open, was not the same version being used by the representatives and the Tribunal. The hearing was adjourned for a short time to make sure that the Claimant had the correct PDF bundle open, that she had it open on a different device to the one she was using to join the hearing, and that she was able to turn to specific pages as required. These issues were resolved before the Claimant was asked questions about her statement by Mr [APPELLANT], Mr [NAME] or me.

14. During questions from Mr [APPELLANT], when asked to read a document at one stage the Claimant referred to her [NAME] as “not good”. I then asked the Claimant some questions to find out whether the Claimant required an interpreter in order to have a reasonable opportunity of presenting her case, although no request had been made on behalf of the Claimant for an interpreter to be present. The Claimant told me that she could understand the questions she was being asked, and she had read the bundle with her son. I explained that it was important she could understand not only questions but also any documents that Mr [APPELLANT] might ask her to look at. Whilst the Claimant at first told me that “ideally” she would have documents translated, on further questioning told me she would be comfortable reading the documents and understanding them without them being translated. Mr [NAME] confirmed that this was also his understanding. I decided that the Claimant would have a reasonable opportunity of presenting her case without an interpreter being present. I took into account what the Claimant herself told me, and the fact that her representative Mr [COUNSEL] was not

Case No: 3313799/2022 5

suggesting that an interpreter was required. I noted from the [APPELLANT] [NAME] that she first started employment with the First Respondent in March 2011, and that [NAME] is the language used by the First Respondent in its documents. The Claimant appeared to me to be able to understand the questions being asked of her and to be able to provide her answers.

15. Once the Claimant had given her evidence, I heard oral submissions from each party’s representative. There was not enough time left for me to complete deliberations, and so I reserved my decision.

16. The findings of fact set out below are made on the balance of probabilities, having considered all the evidence that I read and heard. Issues

17. The issues for me to determine were as follows: 17.1 Did the claimant have a disability as defined in section 6 of the [NAME] 2010 at the time of the events the claim is about (May 2021 to 27 November 2022)? That required me to answer the following questions:

i. Did the claimant have a mental impairment(s)? The claimant relies upon the impairment(s) of anxiety and depression. ii. Did that impairment(s) have a substantial adverse effect on her ability to carry out day-to-day activities? iii. If not, did the claimant have medical treatment, including medication, or take other measures to treat or correct the impairment? iv. Would the impairment have had a substantial adverse effect on their ability to carry out day-to-day activities without the treatment or other measures? v. Were the effects of the impairment long-term? I had to decide: 1. did they last at least 12 months, or were they likely to last at least 12 months? 2. if not, were they likely to recur? Findings of Fact 18. The Claimant started employment with the First Respondent in March 2011 and was an [NAME]). The Claimant was based at the [COMPANY] ([NAME]) in Langley. Initially, the Claimant worked early shifts.

19. In 2021, the First Respondent began what it describes as a realignment process known as a “revision”. This took place at [NAME] and another site. As part of this process, employees including the Claimant were invited to complete a preference exercise to indicate which duties and / or shift

Case No: 3313799/2022 6

patterns they would prefer to work on. The Claimant completed a “Realignment and the [NAME] 2010” form. The Respondent says she did so on 26 March 2021.

20. The way in which the revision process was handled in respect of the Claimant is the subject of dispute between the parties, in that the [APPELLANT] says that the First Respondent and various individual Respondents began to discriminate against her, as set out in her [NAME].

21. In July 2021, the Claimant went to see her GP. She was diagnosed with anxiety and depression and was prescribed sertraline, an anti-depressant. The dose prescribed was 50mg each day. Although the Claimant did not produce in the bundle her GP records relating to this diagnosis, Mr [NAME] did not challenge her evidence that she had been diagnosed with anxiety and depression at that time. Nor did he challenge her evidence that she had been prescribed the anti-depressant sertraline from this time. In submissions, Mr [APPELLANT] confirmed that the Respondents accept that the Claimant started taking anti-depressant medication from July 2021.

22. In order for a diagnosis of anxiety and depression to have been made in July 2021, the Claimant must have reported having some low mood and anxiety at that time, although as I have already noted, I did not have the benefit of seeing the GP records to see exactly what she said to the GP. The [APPELLANT] presented as a truthful witness who was doing her best to assist the Tribunal, although there were some things she could not remember. I accept then that when she attended her GP in July 2021, she was experiencing low mood and anxiety, and that this must have started a short time before she attended the actual GP appointment. The Claimant did not provide any detail of the way in which low mood or anxiety [NAME] her ability to carry out day-to-day activities at this time.

23. The Claimant continued to take sertraline from July 2021 to the end of the period that is relevant for this claim (and indeed afterwards). The dose started to increase in 2022, as explained below. Again, whilst the [APPELLANT] did not provide her GP records showing exactly what she was prescribed at different times, Mr [APPELLANT] accepted in submissions that the [APPELLANT] did start taking anti-depressants from July 2021, and her evidence that she did so continuously at that stage is consistent with the letter from her GP dated 16 June 2023 (p104).

24. In her impact statement, the [APPELLANT] said that there are “varying symptoms from both my condition and the medication which I am required to take” and then referred to “feeling dizzy and disoriented” and to the noise from machines in the workplace impacting her “equilibrium”, the Claimant confirmed in cross-examination that these particular impacts arise from her thyroid condition on the one hand, and her tinnitus on the other. The

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Claimant does not rely on either of those conditions as being disabilities for the purposes of this claim.

25. On 12 April 2022, the [APPELLANT] collapsed at work. She told me that this was what she was describing at paragraph 15 of her impact statement (p89), and that what had happened was that she had taken her thyroid medication, but she had taken it in the morning because she was working on the later shift. Whilst she was at work she felt her head spinning, and she then collapsed, and an ambulance had to be called. In her impact statement, the [APPELLANT] said she “collapsed and felt closed-in (claustrophobic) and extremely anxious.” 26. On 14 April 2022, the [NAME] issued her with a fit note, advising that she was not fit for work due to “stress related problem” and that this would be the case until 14 May 2022 (p94). The Claimant was absent from work from 14 April 2022 until the end of the period relevant to this claim (i.e. 27 November 2022), and indeed beyond. The reason recorded for the absence was “stress”. In oral evidence, the [APPELLANT] said that the source of her stress was the [NAME] and all the managers. She felt that she had tried to explain her problems to them, and they were not listening to her.

27. The Claimant remained absent due to ill health throughout the remainder of the period that is relevant for the purposes of this claim. The reason recorded by the First Respondent for this absence was “stress” (p115).

28. On 25 April 2022, the [NAME] [NAME] [APPELLANT], issued a letter “to whom it may concern”. The letter referred to the Claimant having been advised to attend a stress risk assessment meeting and stated that the Claimant “is currently suffering with stress, feeling low and anxious, to the extend [sic] that her tinnitus and dizziness is flaring up and she is requiring medication to manage her symptoms and to help with her insomnia. She states that currently does not feel well enough to attend this meeting, and is keen to recover at home over the next few weeks.” (p96). The Claimant said in her evidence that it was her hope at this time that she would be able to return to work after she had been away for a while to see family out of the country.

29. On 19 May 2022, the Claimant had a consultation with Mrs [APPELLANT], an [NAME] adviser from [NAME], an [NAME] provider engaged by the First Respondent. Mrs [RESPONDENT] subsequently provided an [NAME] report dated 20 May 2022 (and then sent to the First Respondent on 6 July 2022), which advised that the Claimant was off work “due to the underlying health problems that include tinnitus, depression and thyroid condition. She is currently receiving treatment and some of her medication is being reduced which has impacted on her levels of fatigue.” Mrs [APPELLANT] advised that the Claimant was likely to return to work on around 27 June 2022 on modified duties, and that she would remain

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on modified duties until 25 July. She said that the Claimant had advised that a change from a morning to afternoon shift had impacted on 2 of her conditions, namely tinnitus (because the afternoon shift was noisy), and her thyroid condition (because she experiences increased fatigue in the afternoon). A return to a morning shift, and ear protection, was recommended. The letter said that the Claimant was “receiving a high volume of contact from work each week, this may increase her level anxiety” and it recommended that until the Claimant returned to work, it was agreed that she would receive one call a week as a maximum to discuss her progress. The Claimant was having some of her medication reduced which would “help reduce the level of fatigue she has at the moment, which will impact on her levels of concentration.” Mrs [APPELLANT] advised that in her opinion the Claimant “is likely to be covered by [NAME] as they have a condition that requires ongoing treatment to maintain her health.” (p97-99). The report did not identify which of the Claimant’s health conditions Mrs [APPELLANT] was referring to in providing this opinion. (p100-102).

30. The Claimant agreed in her evidence that at the date of her assessment with Mrs [NAME] (on 19 May 2022) she felt that she would be able to return to work in full by around July 2022.

31. The Claimant says that on 15 June 2022 she had a telephone call with the [NAME] Respondent. This was referred to in the [NAME] as being 15 April 2022, but the [APPELLANT] told me that this was an error, and it should refer to June. She describes the [NAME] Respondent as bullying and harassing her, but this is a matter of dispute between the parties and is not an issue that could be decided at the preliminary hearing. It is mentioned here for the purpose of explaining the chronology of the Claimant’s symptoms, because the [APPELLANT] said in her evidence that this made her anxiety and depression worse.

32. I accept that in around June 2022, the [APPELLANT] GP increased her prescription for sertraline from 50mg to a higher dose. Again, the relevant record was not in the bundle, and the Claimant could not recall the exact date, or exactly how the dosage was increased, but the letter from the [NAME] dated 16 June 2023 (p124) is consistent with the prescribed dose of sertraline increasing incrementally from June 2022, until by February 2023 the dose was 125mg per day. The [NAME] report dated March 2023 also supports the Claimant’s evidence that her sertraline gradually increased.

33. I accept the Claimant’s oral evidence that in around the middle of 2022, the Claimant also had some [NAME]. Again, no records of [NAME] were produced in the bundle, but the Claimant’s later GP letter dated 16 June 2023 was consistent with some [NAME] having taken place in 2022. I was not able to make any findings as to how many sessions had taken place

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because the Claimant told me she could not remember, and no [NAME] records were provided.

34. On 25 October 2022, the [NAME] issued a fit note referring to “stress related work” and “anxiety” and recommending that the Claimant may be fit for work taking account of the following advice: “has been suffering with anxiety, exacerbated by working late evenings. She is taking anti- depressant medication. She has been struggling over the past few months. She tells us she has meeting to discuss future arrangements. It appears her anxiety is worse in the evenings. It is recommended she works day shifts under contractual hours to support her in the future to prevent further worsening anxiety and having more time off work.” The fit note advised this would be the case until 2 November 2022, which on the face of it appears at odds with the suggestion that she work day shifts “in the future” (p103), but I find that on a proper reading of this fit note it is clear that what was being recommended by the GP was that going forward day shifts should be considered to prevent the Claimant’s anxiety getting worse.

35. On 29 November 2022, the [NAME] issued a further fit note, advising that the Claimant was not fit for work due to stress related to work and anxiety and depression, and that this would be the case until a date (the specific date is illegible on the bundle copy) in January 2023 (p104).

36. On 13 February 2023, the [NAME] issued a further “to whom may concern” letter. This said that the Claimant “suffers with anxiety and depression and has been struggling more so recently past year. She takes sertraline 125mg once a day. She hasn’t been able to work due to stress and feels need to travel abroad. She wishes to have [NAME] and travel back home for short period to see if this will alleviate her stress levels. We will support any help from [NAME] here or abroad if it means this will help her manage her stress and anxiety / depression better. It is recommended she needs us regularly and if any changes are made to her treatment, she informs us.” (p105).

37. In evidence, the Claimant was asked by Mr [APPELLANT] about the reference to having struggled more over the past year. The Claimant said that things had got worse from around April 2022, when she says that the [NAME] Respondent bullied and harassed her in a telephone call. However, the Claimant later corrected the date given for that telephone call and said it had taken place in June 2022.

38. On 2 March 2023, the Claimant had a telephone consultation with [NAME] [APPELLANT], an adviser from [NAME], and he produced an [NAME] report. He advised that the Claimant “went off sick” in April 2022 with anxiety and depression and that “she reports of suffering from low mood since February 2022, along with anxiety disturbed sleep feeling tired and fatigued, issues with concentration and lack of motivation and socially isolated with

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emotional lability.” The [APPELLANT] reported being unable to identify a trigger in her personal life but said she had some issues with a manager and her shift being changed from mornings to lates. [NAME] [NAME] said “she saw her GP who diagnosed her with anxiety and depression and put her on medication which was gradually increased, but she still remains psychologically symptomatic.” [NAME] [NAME] said that he was unable at this time to confirm her fitness for work duties and that it was likely that her current reported symptoms and associated functional restrictions would limit her capacity to attend work and provide regular and effective service in work duties.

39. On 16 June 2023, the [NAME] [NAME] [APPELLANT] issued a “to whom it may concern” letter. This appears to have been prepared for the purposes of the claim. [NAME] [APPELLANT] says that the Claimant “was first diagnosed with Anxiety and Depression in July 2021. She has had [NAME] through [NAME] in past last year and medication regularly. Currently, she is on Sertraline 125mg once a day. This has been gradually increasing since past year from 50mg once a day. Last year she experienced in April 2022 a lot of stress at work which resulted in worsening of her mental health. She is currently having to take regular medication. She is also borderline diabetic and has underactive thyroid for which she takes regular…medication. The stress at work has led to worsening depression and anxiety as a result we have had to increase her medication dose incrementally over the past year and has had to significant time off work and still is. She is awaiting to see her [NAME] and started exercise classes through our referral scheme. This hasn’t happened yet but in the pipeline.” (p124). Summary of submissions 40. Mr [APPELLANT] on behalf of the Respondent accepted that the Claimant had been diagnosed with anxiety and depression in July 2021 and had started taking medication from that date but did not accept that the Claimant was disabled within the meaning of the [NAME] 2010 from that date. He submitted that in terms of the evidence of substantial adverse impact that had been set out in the impact statement, any periods of dizziness or difficulty dealing with machines had not been linked to anxiety and depression. He submitted that there was a “complete absence” of anything to suggest that the anxiety / depression was having an adverse effect on normal day-to-day activities prior to some way into 2022, let alone a substantial one. He said that from February 2022 – April 2022 some adverse effects started occurring but that these appeared to be due to issues with the [APPELLANT] manager, and that from April 2022 the [APPELLANT] had gone off from work primarily with stress issues, and that this remained consistent through the fit notes that were produced. The [NAME] reports suggested that it was issues relating to the Claimant’s thyroid or tinnitus that were preventing a return to work rather than issues relating to the alleged disability. Even if the Claimant’s anxiety and depression was having a substantial adverse effect on her ability to carry out normal day-to-day activities in April, they were not

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anticipated to be long-term, and it was anticipated that she would return to work. It was for the Claimant to prove that she was disabled at the material time. As to what the impact of the Claimant’s anxiety and depression would have been in the absence of sertraline, Mr [NAME] submitted that initially the dose was relatively low, and that it could not be deduced from a dose of 50mg that without that medication the Claimant’s anxiety and depression would have had a substantial adverse effect upon her.

41. Mr [APPELLANT] submitted that the Tribunal should find that the Claimant was a disabled person. He submitted that she had been diagnosed with the impairment of anxiety and depression in July 2021, and that since that time she had been taking medication for that impairment. Law 42. ‘Disability’ is defined at S.6 and Schedule 1 of the [NAME] 2010 (EA 2010). The relevant provisions say: Section 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 [NAME] ability to carry out normal day-to-day activities. … (5)A Minister of the [NAME] may issue guidance about matters to be taken into account in deciding any question for the purposes of subsection (1).

(6)Schedule 1 (disability: supplementary provision) has effect. Section 212 (1) In this Act…. ‘substantial’ means more than minor or trivial. Schedule 1 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 [NAME]. (2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur.

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…. 5 (1) An impairment is to be treated as having a substantial adverse effect on the ability of the [NAME] 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. … (10) This Part of this Schedule applies in relation to guidance referred to in section 6 (5). (11) The guidance may give examples of— (a)effects which it would, or would not, be reasonable, in relation to particular activities, to regard as substantial adverse effects; (b)substantial adverse effects which it would, or would not, be reasonable to regard as long-term. (12) (1)In determining whether a person is a disabled person, an adjudicating body must take account of such guidance as it thinks is relevant. (2)An adjudicating body is— (a) a court; (b) a tribunal; (c) a person (other than a court or tribunal) who may decide a claim relating to a contravention of Part 6 (education).” 43. The burden of proving disability is on the Claimant. She must show that at the material time she had a physical or mental impairment which had a long term and substantial adverse effect on her ability to carry out normal day- to-day activities. In this case, the Claimant says that she had a mental impairment, namely anxiety and depression.

44. Whether the [APPELLANT] had a disability is a matter for the tribunal to determine rather than a medical professional ([NAME] v [COMPANY] [2001] IRLR 23). In deciding whether or not something amounts to a “mental impairment”, that term is not defined in the EA 2010, and it is something that the tribunal has to decide, based upon the evidence before it. There is no requirement for there to be a clinically well recognised illness.

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45. Where identifying the nature of the impairment from which a claimant may be suffering involves difficult medical questions, it may be easier, and is legitimate, for the tribunal to ask first whether the claimant’s ability to carry out normal day-to-day activities has been adversely [NAME] on a long-term basis (J v DLA Piper UK LLP [2010] IRLR 936, paragraph 38; Guidance paragraphs A3-4, A7-8). However, the tribunal is entitled to consider the impairment question first ([NAME] v [COMPANY]/0266/19, paragraph 16).

46. There is a valid distinction to be drawn between a normal reaction to an adverse and tragic life event and something that is more profound and develops into an impairment. So, for example, the Employment Appeal Tribunal in [NAME] v [COMPANY] (UKEAT/0119/19/BA) held that the tribunal had been entitled to conclude that grief after the death of a [NAME] had not been an impairment at the material time, although [NAME] had used the term “depression”.

47. Although reactions to adverse circumstances are not normally long-lived, there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the [NAME] will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day to day activities. [NAME] may be more likely to refer to the presentation of such an entrenched position as stress, than anxiety or depression. An employment tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise are not of themselves mental impairments: they may simply reflect a character or personality. Any medical evidence in support of an impairment, and of adverse effect over and above an unwillingness to return to work until an issue is resolved, must be considered with great care, but the question of whether there is a mental impairment is a question for the tribunal ([NAME] v Dudley Metropolitan Council [2017] ICR 610).

48. In relation to whether an impairment had a substantial adverse effect on the person’s ability to carry out normal day-to-day activities, the focus is upon what the person either cannot do, or can only do with difficulty, rather than on the things that the person can do ([NAME] v The Patent Office [1999] ICR 302).

49. In 2011, and in exercise of the power conferred by Section 6 (5) of the EA 2010, the Secretary of State issued guidance on matters to be taken into account in determining questions related to the definition of disability (2011) (the Guidance) suggests that a number of factors will be relevant when considering whether any adverse impact on normal day-to-day activities is substantial, including the time taken to carry out an activity and the way in

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which an activity is carried out. The focus is on the things that the person cannot do, or can only do with difficulty (rather than on the things that the person can do) ([NAME] v Commissioner of Police for the Metropolis [2007] IRLR 763, at 39).

50. As to what is meant by ‘normal day to day activities,’ paragraphs D3-4 of the Guidance say: ‘In general, normal 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. Normal day to day activities can include in general work-related activities, and study and education-related activities, such as interacting with colleagues, following instructions, using a computer, driving, carrying out interviews, preparing written documents, and keeping to a timetable or shift pattern. The term ‘normal day to day activities’ is not intended to include activities which are normal only for a particular person, or a small group of people. In deciding whether an activity is a normal day-to-day activity, account should be taken of how far it is carried out by people on a daily or frequent basis. In this context, ‘normal’ should be given its everyday meaning.’ 51. Whilst the question of whether there is a “substantial” adverse effect is a question of fact for the tribunal to determine, the fact that a GP has diagnosed anxiety and has advised a claimant to refrain from work has been held “in itself” to be evidence of a substantial effect on day-to-day activities ([NAME] v Turning Point [2010] 11 WLUK 156, HHJ McMullen QC held, at [22]).

52. Where a condition (other than a sight condition, or a condition that can be permanently cured by the said treatment) is being treated or corrected, the impairment is deemed to have the effect that it is likely to have had without the measures in question (Schedule 1, paragraph 6 (1) of the EA 2010).

53. In deciding what effect an impairment would have had without the benefit of treatment, the Court of Appeal in [NAME] v London Borough of Southwark [2002] EWCA Civ 1716, held that the question was whether, if treatment had been stopped at the relevant date, the person would (despite the benefit obtained from prior treatment) have an impairment which had the relevant effect. At paragraph 13, [NAME] LJ said: “In any deduced effects case of this sort the claimant should be required to prove his or her alleged disability with some particularity. Those seeking to invoke this particularly benign doctrine….should not readily expect to be

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indulged by the tribunal of fact. Ordinarily, at least in the present class of case, one would expect clear medical evidence to be necessary.” 54. In [NAME] v [COMPANY] (UKEAT/0424/13/DM), [NAME] J stated that “relatively little evidence may in fact be required to raise this issue” (paragraph 39). In that case, there was medical evidence dealing with the effect of the treatment that the Claimant had been receiving. At paragraphs 39 and 40, [APPELLANT] J referred to the (obiter) proposition in J v DLA Piper UK LLP [2010] ICR 1052, EAT, that “there is nothing particularly surprising in the proposition that a person diagnosed as suffering from depression who is taking a high dose of anti-depressants would suffer a serious effect on her ability to carry out normal day-to-day activities if treatment were stopped: the proposition could of course be challenged”, and said that “although obiter in its terms, I agree with that observation, which would accord with common sense”.

55. The Guidance says this about the effects of treatment: “B12. The Act provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’. The practical effect of this provision is that the impairment should be treated as having the effect that it would have without the measures in question (Sch1, Para 5(1)). The Act states that the treatment or correction measures which are to be disregarded for these purposes include, in particular, medical treatment and the use of a prosthesis or other aid (Sch1, Para 5(2)). In this context, medical treatments would include treatments such as [NAME], the need to follow a particular diet, and therapies, in addition to treatments with drugs. (See also paragraphs B7 and B16.)

[NAME]. This provision applies even if the measures result in the effects being completely under control or not at all apparent. Where treatment is continuing it may be having the effect of masking or ameliorating a disability so that it does not have a substantial adverse effect. If the final outcome of such treatment cannot be determined, or if it is known that removal of the medical treatment would result in either a relapse or a worsened condition, it would be reasonable to disregard the medical treatment in accordance with paragraph 5 of Schedule 1.

B14. For example, if a person with a hearing impairment wears a hearing aid the question as to whether his or her impairment has a substantial adverse effect is to be decided by reference to what the hearing level would be without the hearing aid. Similarly, in the case of someone with diabetes which is being controlled by medication or diet should be decided by reference to what the effects of the condition would be if he or she were not taking that medication or following the required diet.

A person with long-term depression is being treated by [NAME]. The effect of the treatment is to enable the person to undertake normal day-to- day activities, like shopping and going to work. If the effect of the

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treatment is disregarded, the person’s impairment would have a substantial adverse effect on his ability to carry out normal day-to-day activities.

B15. The Act states that this provision does not apply to sight impairments to the extent that they are capable of correction by spectacles or contact lenses. (Sch1, Para 5(3)). In other words, the only effects on the ability to carry out normal day-to-day activities which are to be considered are those which remain when spectacles or contact lenses are used (or would remain if they were used). This does not include the use of devices to correct sight which are not spectacles or contact lenses.

B16. Account should be taken of where the effect of the continuing medical treatment is to create a permanent improvement rather than a temporary improvement. It is necessary to consider whether, as a consequence of the treatment, the impairment would cease to have a substantial adverse effect. For example, a person who develops pneumonia may be admitted to hospital for treatment including a course of antibiotics. This cures the impairment and no substantial effects remain. (See also paragraph C11, regarding medical or other treatment that permanently reduces or removes the effects of an impairment.)

B17. However, if a person receives treatment which cures a condition that would otherwise meet the definition of a disability, the person would be protected by the Act as a person who had a disability in the past. (See paragraph A16.)”

56. The effect of an impairment is taken to be long term if 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]. Where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day to day activities it is treated as continuing to have that effect if that substantial adverse effect is likely to recur (Schedule 1, Part 1, para 2 of the EA 2010). Paragraphs C1 to C11 of the Guidance address the meaning of “long-term”, including the likelihood of effects lasting for at least 12 months, or of recurring. At [NAME] the Guidance says: “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 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).” 57. To show that something is ‘likely’ it is not necessary to show that it will probably happen. It is sufficient if it ‘could well happen’ ([COMPANY] v Boyle [2009] IRLR 746).

58. Whether or not an impairment has a substantial adverse effect, and whether that substantial adverse effect is long term is to be judged by reference to

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the facts and circumstances existing at the date of the alleged discriminatory acts. The tribunal is not entitled to have regard to events occurring after the date of alleged discrimination to determine whether the effect did (or did not) last for 12 months ([COMPANY] v (1) Mr W (2) Ms R [2021] EWCA Civ 606, per Lewis LJ at paragraph 26, applying [NAME] [NAME] v Richmond Adult College [2008] EWCA Civ 4). Conclusions Did the Claimant have a mental impairment during the period May 2021 to 27 November 2022? 59. I find that the Claimant did have a mental impairment of anxiety and depression from July 2021. Although the Claimant did not produce her GP records in the bundle, I accepted her evidence (which was not challenged) that in July 2021 she was diagnosed with anxiety and depression, and she was prescribed sertraline.

60. Whilst the Claimant must have had some symptoms before the date of her diagnosis in order to have decided to make an appointment to see her GP, on the evidence provided I was not able to conclude that the impairment began much before the diagnosis itself. I was not able to conclude that the Claimant had the impairment of anxiety and depression prior to July 2021. Did that impairment have a substantial adverse effect on the Claimant’s ability to carry out normal day-to-day activities, or which would likely have had a substantial adverse effect without treatment? July 2021 to February 2022 61. There is insufficient evidence to prove that the Claimant’s impairment of anxiety and depression was actually having a substantial (i.e., more than minor or trivial) adverse effect on the Claimant’s ability to carry out normal day-to-day activities during the period July 2021 to February 2022. The only impacts the [APPELLANT] described were feeling dizzy and disoriented, and her “equilibrium” being [NAME] by the noise of machines, but in her oral evidence she accepted that these arose from her thyroid condition / medication and tinnitus respectively. They were not adverse effects of the mental impairment of anxiety and depression. The Claimant was not signed off work due to anxiety or depression during this period.

62. The [APPELLANT] was, however, receiving treatment for her impairment of anxiety and depression during this period. I have found that she was taking 50mg of sertraline per day. I have to consider whether, if the Claimant was not taking sertraline, it is “likely” that the impairment of anxiety and depression would have had a substantial adverse effect on her ability to carry out normal day-to-day activities. This is often referred to as the concept of “deduced effect”. “Likely” in this context means “may well” rather than probable.

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63. I note that “relatively little evidence” may be required to raise the issue of deduced effect ([NAME] v [NAME] at Home). I bear in mind the obiter comments in J v DLA Piper that there is “nothing particularly surprising in the proposition that a person diagnosed as suffering from depression who is taking a high dose of anti-depressants would suffer a serious effect on her ability to carry out normal day-to-day activities if treatment were stopped.” I also bear in mind the decision of the Court of Appeal in [NAME], and the comments about the need for the Claimant to prove her disability.

64. I have not found this question a particularly easy one to resolve, but I have come to the conclusion that I am unable to find that if the Claimant had not been taking sertraline, her impairment of anxiety and depression would have had a substantial adverse effect on her ability to carry out normal day- to-day activities between July 2021 and February 2022. I do not have any medical evidence to suggest to me that 50mg of sertraline is a particularly high dose. The letters in the bundle from the [NAME] do not say that 50mg is a particularly high dose. Nor do I have any medical evidence to suggest to me what the impact might have been on the [APPELLANT] if she had stopped taking the medication altogether at that time, and the [APPELLANT] herself did not provide details of what she was suggesting the impact would have been. I have considered carefully what evidence I have of the impact that the Claimant’s impairment had upon her just before she was prescribed sertraline, because that may have given me some stronger evidence from which to infer what the effects would have continued to be without the medication. However, the [APPELLANT] herself did not give evidence that at the time she went to see her GP in July 2021 she was experiencing any particular difficulty in carrying out normal day-to-day activities.

65. I do not therefore find that the Claimant had a mental impairment that had a substantial adverse effect on her ability to carry out normal day-to-day activities up to February 2022. February 2022 to 11 April 2022 66. I have considered this period separately, because there is some suggestion in the [NAME] report of 2 March 2023 of the Claimant reporting “suffering from low mood since February 2022, along with anxiety disturbed sleep feeling tired and fatigued, issues with concentration and lack of motivation and socially isolated with emotional lability” (p107).

67. However, the Claimant did not suggest in her impact statement that her mental impairment got worse in February 2022 and / or that it was having a particular adverse impact on her normal day-to-day activities at this time. The Claimant had not at this point been signed off work, and her medication remained at the level it had been before. In the circumstances, whilst I find that there may have been some adverse effect on concentration and

Case No: 3313799/2022 19

motivation around this time, I do not find that the Claimant has proved that any such adverse effects were more than minor or trivial at this stage. 12 April 2022 onwards 68. I find that there was a deterioration in the [APPELLANT] mental (as well as physical) health from around 12 April 2022.

69. Whilst the Claimant’s collapse at work on 12 April 2022 was related to the timing of her thyroid medication and / or her thyroid condition generally, she also described feeling anxious having collapsed. She was then advised by her GP to refrain from work on 14 April 2022 due to stress at work. Mr [NAME] submitted that this inability to work arose from stress at work due to difficulties with managers, the suggestion being that this was simply a reaction to adverse life events, rather than an inability to work arising from the [APPELLANT] impairment of anxiety and depression. I do not accept this. I find that the [APPELLANT] impairment of anxiety and depression was at least one of the reasons why she was unable to attend work and was unable to attend the proposed meeting at work at around this time. The [APPELLANT] had been diagnosed with anxiety and depression in July 2021, and the [NAME] made clear in the letter dated 25 April 2022 that by this point in April 2022 the [APPELLANT] was not only feeling “stressed” but that her mood was low, and she was anxious. He wrote that the [APPELLANT] was “currently suffering with stress, feeling low and anxious, to the extend [sic] that her tinnitus and dizziness is flaring up and she is requiring medication to manage her symptoms and to help with her insomnia. She states that currently does not feel well enough to attend this meeting, and is keen to recover at home over the next few weeks.” (p96).

70. Thereafter, and for the duration of the period that is relevant for this claim, I conclude that the [APPELLANT] impairment was one of the reasons why she was being advised to refrain from work. Throughout this period, I find that there was a more than trivial impact on the Claimant’s ability to carry out normal day-to-day activities, which would have included going to and from work each day, working for the full shift, and interacting with colleagues, including managers. That the Claimant’s impairment of anxiety and depression was having a more than trivial impact on her ability to carry out normal day-to-day activities is consistent with the GP letter of 25 April 2022, and also with the later fit note of 25 October 2022.

71. Further, as I have found, from around June 2022, the [NAME] started gradually to increase the dose of sertraline prescribed to the Claimant. In case I am wrong in my conclusions about the actual effects upon the Claimant from April 2022, I have considered what the likely effect would have been upon the Claimant’s ability to carry out normal day-to-day activities if she had stopped taking the sertraline, rather than continuing to take it at an increased level from June 2022. Taking into account that the

Case No: 3313799/2022 20

Claimant was still being advised to refrain from work, I find that there is sufficient evidence for me to conclude that by that stage if the Claimant had not been taking sertraline, her impairment was likely to have had an even more substantial adverse effect on her ability to carry out normal day-to-day activities than it already was doing by that point. There may well have been a more substantial adverse effect on her concentration, motivation and ability to interact socially. Were the effects of the impairment long-term? 72. Having found that from 12 April 2022, and for the remainder of the period that is relevant for the purposes of this claim, the Claimant’s impairment of anxiety and depression did have a substantial adverse effect on her ability to carry out normal day-to-day activities (and would have done so without the benefit of the gradually increasing doses of sertraline), I have gone on to consider whether the substantial adverse effect(s) of the impairment were long-term, and if so, by what date? 73. The end of the relevant period that I have considered is the date of the presentation of the claim on 27 November 2022. By that stage, the substantial adverse effects that I have found had not lasted for 12 months.

74. I therefore have to consider whether they were “likely” to last for 12 months (or for the rest of the Claimant’s life), and if so, by what date? “Likely” in this context also means “may well”.

75. Again, I have not found this an easy decision, due in part to the very limited medical evidence that was placed before the Tribunal. What I cannot do is look at what has happened since the 27 November 2022 and rely upon that as proving, or disproving, that any substantial adverse effects were (or were not) long-term. I have to consider the circumstances as they were at the relevant time period for this claim.

76. The evidence that is available suggests that when the Claimant was first signed off work in April 2022, it was expected that she would be off work for a month, until 14 May 2022 (p94). At the date that Mrs [NAME] produced her initial [NAME] report (20 May 2022), it was anticipated that the Claimant would be able to make a return to full duties by 25 July 2022 (p97-8). Whilst a change to morning shifts was suggested, at that time this was said to be due to the Claimant’s thyroid condition and tinnitus, and not due to her impairment of anxiety and depression. The Claimant’s medication did start to be gradually increased from around June 2022, and the Claimant had some [NAME] around mid-June 2022, but she was not clear about how much. Taking everything into consideration, I am not able to say that by July 2022, it could be said that the substantial adverse effects of the Claimant’s impairment of anxiety and depression, having started as I have found in April 2022, may well last for 12 months, or for life.

Case No: 3313799/2022 21

77. On the evidence that was before the Tribunal, I find that by around 25 October 2022 the position had changed. At that stage, the [NAME] issued a fit note indicating that because of stress-related work and anxiety, the Claimant may be fit for work taking account of advice to work altered hours. The fit note stated that the Claimant had been suffering with anxiety, exacerbated by working late evenings. She was taking anti-depressant medication. It was recommended that the Claimant work day shifts “to support her in the future to prevent further worsening anxiety and having more time off work” (p103). By this stage, bearing in mind that the reference to preventing further worsening anxiety and the possibility of the Claimant having more time off work (due to anxiety), the fact that the Claimant had been off work for 6 months, that she was still taking sertraline and the dose was gradually increasing, I do conclude that it was “likely” that the substantial adverse effects of the impairment of anxiety and depression would last 12 months, in the sense that by this stage it could be said that they “may well” last 12 months. Summary 78. For the reasons I have given, I find that the [APPELLANT] was a disabled person due to the mental impairment of anxiety and depression from 25 October 2022, but not before that date.

79. A further preliminary hearing will take place on 14 February 2024 at 2pm to consider further case management in light of this Judgment.

Employment Judge C Knowles

Date: 19 December 2023

RESERVED JUDGMENT & REASONS SENT TO THE PARTIES ON

28 December 2023

FOR EMPLOYMENT TRIBUNALS

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Recording and Transcription

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Case Nos: 3313799/2022 & 3300081/2024 1

EMPLOYMENT TRIBUNALS

Claimant: [redacted]

Respondent: [redacted]

(2) [NAME] (3) [RESPONDENT] [NAME]

(4) [RESPONDENT] (5) [NAME] at: Reading

On: 12 June 2024 Before: Employment Judge S. Matthews

Representation Claimant: [redacted] Respondent: [redacted]

RESERVED JUDGMENT

The claimant’s complaints of disability discrimination are struck out on the grounds that they have no reasonable prospect of success.

REASONS Introduction

1. The claimant was employed by the first respondent as an Operational Postal Grade Worker from 29 March 2011 to 3 November 2023. She brings 2 claims against the respondents. The first claim was issued on 27 November 2022. The claimant ticked the boxes at 8.1 on the ET1 form to indicate her claim was for race and disability discrimination. The [NAME] claim was brought on 4 January 2022. She ticked the boxes at 8.1 on the form for race and disability discrimination and unfair dismissal. She alleges victimisation as the reason for her dismissal.

2. Employment Judge (EJ) Street made an order on 14 February 2024 that the claims are to be heard together.

3. The details of the claimant’s claims set out in the claim forms are sparse. The Tribunal has attempted to clarify the claims by case management orders issued on 27 March 2023 and subsequently Orders set out by Employment

Case Nos: 3313799/2022 & 3300081/2024 2

Judge Hanning at a case management hearing on 15 June 2023. [NAME], drafted by a legal representative, were served on 4 August 2023.

4. Allegations set out in the [NAME] relate to conduct from May 2021 to June 2022; in relation to disability that she was denied the right under the first respondent’s scheme in or around May 2021 to select a job, notwithstanding a recommendation of the first respondent’s [NAME] (81).

5. The respondent denies discrimination and unfair dismissal and says the claimant was dismissed for the reason of capability or ‘some other substantial reason’ (146).

6. This hearing concerns the claimant’s claims for disability discrimination. The claimant relies on the impairment of anxiety and depression.

7. On 24 November 2023 Employment Judge (EJ) Knowles decided that the claimant was not a disabled person as defined by section 6 of the [NAME] 2010 due to anxiety and depression prior to 25 October 2022.

8. On 4 January 2024 the claimant issued the [NAME] claim relating to her dismissal. It also referred to her ‘right to select a job as a declared mental health disability person’ (120). A Preliminary Case Management Hearing was held before Employment Judge (EJ) Street on 14 February 2024.

9. The purpose of the hearing today is set out in paragraph 4 of the order of [ADDRESS] dated 14 February 2024, specifically ‘to consider any application to amend the claim, to consider striking out the disability claim and for further case management’ (129-134).

10. I had before me a bundle of 154 pages. Numbers in brackets below are references to pages in the bundle.

11. The claimant was represented by counsel. The Tribunal provided a Punjabi interpreter. I ensured that regular breaks were taken during the hearing as requested by the claimant.

Order of [ADDRESS]

12. In this part of the Judgment I will set out relevant paragraphs from the Order of [ADDRESS] dated 14 February 2024.

13. At paragraphs 1 and 2 of the [ADDRESS] warns the claimant that the Tribunal is considering striking out her claim for disability discrimination on the grounds that it has no reasonable prospects of success:

‘1. In respect of both claims, and in the light of the Judgment of Employment Judge Knowles dated 24 November 2023, and at the initiative of the Tribunal, the Claimant is warned that that the claim of disability discrimination will stand dismissed unless on or before 1 May 2024, the Claimant has explained

Case Nos: 3313799/2022 & 3300081/2024 3

in writing why that part of her claims should not be dismissed, and has made an application to amend the claims to set out the facts that she relies on.

2. That is because the claims have no reasonable prospect of success: both claims rely on matters before 25 October 2022, when the Claimant was not a disabled person under section 6 of the [NAME] 2010.’

14. At paragraph [ADDRESS] refers to the [NAME] claim, noting the ‘close similarity’ to earlier complaints in the first claim, including a complaint regarding disability relating to conduct in May 2021. At paragraph [ADDRESS] states:

‘26. Nothing referred to in the grounds for the [NAME] claim show reliance on matters after October 2022. Beyond reference to May 2021, no fuller details to support a disability claim are given. From the account today, there may be such matters, but no specifics are given.’

15. [ADDRESS] reached the conclusion that the claimant did not have the disability she relies on (anxiety and depression) at the time of the conduct complained of in either claim as currently pleaded. On that ground the Tribunal does not have jurisdiction to decide a disability claim.

16. At paragraph 36 EJ [NAME] says, referring to the Overriding objective, in particular the need to avoid delay (paragraph 35) and mindful that the claimant has already had 2 opportunities to clarify her disability claim (paragraph 32) ‘Applying that here I am not prepared to ask Mrs [APPELLANT] again for more details. By this Order, she is warned that the Tribunal is considering striking out her disability claims.’

17. Nevertheless, no doubt mindful of the fact that the claimant was not legally represented at the time, [APPELLANT] explained in the Order that a possible way forward may be for the claimant to apply to amend her claim. At paragraph 37:

‘If she provides a detailed statement that explains what she is complaining about for the period after October 2022, with specific dates and details, who was involved, who did or said what, when, where, and what it has to do with her disability, she can ask the Tribunal for permission to amend her claim. That will be considered at the hearing on 12 June 2024. She must head it “Application for permission to Amend” and send it to the Tribunal and to the representatives of the Respondents.’

18. Counsel for the claimant submitted that EJ [COUNSEL] was not clear, because she says she will not ask for more details (paragraph 36) but then ask the claimant to produce a statement (paragraph 37). I do not agree. By further details at paragraph [ADDRESS] is referring to further particulars and that is to be seen in the context of the claimant having already been asked for particulars of the first claim. The statement referred to at paragraph 37 is an application to amend, set out explicitly for the benefit of a litigant in person.

19. [ADDRESS] then sets out what will happen if the claimant does not comply with paragraph 37:

Case Nos: 3313799/2022 & 3300081/2024 4

‘40. If she does not provide any more details in that way, the disability claim in both claims will be struck out, because there is no jurisdiction to consider them.

41. If there is no application to amend received at the Tribunal by 1 May 2024, the disability claims will be struck out automatically.

42. Even if she does apply to amend her claim, while considering whether to grant permission, Tribunal will consider whether the claims are clearly and specifically enough set out for the Respondents and Tribunal to understand what her case is.The Tribunal will therefore also consider striking out the claim on 12 June, even if she has sent in an application to amend.’

20. In summary [NAME], relying on the detailed findings of [APPELLANT], has found that the claimant did not have the disability of anxiety and depression at the time of the conduct referred to in the first and [NAME] claim. The Tribunal therefore has no jurisdiction to hear the claim for disability discrimination. One way for the claimant to proceed would be to successfully apply to amend her claim to refer to conduct that occurred at the time the claimant had that disability, from October 2022. The Order sets out very clearly what the claimant needs to do to make an application to amend. The Order also makes it clear that the claimant cannot assume that the application to amend will be successful and the Tribunal will still consider striking out the claim, even if she makes an application to amend.

Steps taken by the claimant following the last hearing

21. On 11 April 2024 following the hearing before [ADDRESS] the claimant appointed solicitors. She provided them with a copy of the Order of [ADDRESS].

22. On 26 April 2024 they sent a document to the Tribunal and to the respondent headed Amendment application (148-151). It stated, so far as is relevant:

‘This is an application for the Amendment of the Claimant to include her claim for disability discrimination ... Therefore we respectfully request that the [APPELLANT] application be admitted, and her claim be amended to include her Claim for Disability Discrimination under S6 [NAME] 2010 as being disabled before 25 October 2022 and as earliest as July 2021 when the Respondent admitted in Court to having known about her medical problems from’ (151).

23. Although headed application to amend, it did not contain the details which [ADDRESS] set out at paragraph 37. It was an application to overturn the decision of [NAME]. I observe that was an entirely inappropriate course of action and the application was misconceived.

24. Both that application and submissions from counsel for the claimant during the hearing rely on the argument that the first respondent’s [NAME] advisor on 6 July 2021 stated that the claimant had a condition that is likely to be covered by the [NAME] (149). As the claimant’s legal representatives should know that opinion is not determinative and has now been found to be incorrect by [NAME]. Any challenge to EJ [NAME]: 3313799/2022 & 3300081/2024 5

decision should have been by way of an application for reconsideration or an appeal (within the relevant time limit).

25. As a result of the misconceived application, it is arguable that the claim should be automatically struck out on the grounds that no application to amend the claim was submitted by 1 May 2024. That has not happened, and I heard detailed submissions from counsel for the claimant today before reaching my decision.

Legal Principles

26. Rule 37(1)(a) provides that all or any part of a claim or response may be struck out if it is ‘scandalous or vexatious or has no reasonable prospect of success’.

27. In [NAME] v Birmingham City Council and anor EAT 0027/19, Mr Justice Choudhury, then President of the EAT, stated that the obligation to take the claimant’s case at its highest for the purposes of a strike-out application, particularly where a litigant in person is involved, requires the tribunal to carefully consider the claim as pleaded and as set out in relevant supporting documentation before concluding that there is nothing of substance behind it.

28. In [NAME] v [COMPANY] and ors [2021] ICR 1307, EAT, His Honour Judge James Tayler provided guidance on how tribunals should approach strike-out applications against litigants in person: there has to be a reasonable attempt at identifying the claim and the issues before considering strike-out. If the claim would have reasonable prospects of success had it been properly pleaded, consideration should be given to the possibility of an amendment, subject to the test of balancing the justice of permitting or refusing the amendment, taking account of the relevant circumstances.

29. In [NAME] and anor v [COMPANY] and anor [2001] ICR 391, [NAME], the House of Lords highlighted the importance of not striking out discrimination claims except in the most obvious cases. This is because discrimination claims are generally fact-sensitive, and it is a matter of public interest that they should be fully examined to make a proper determination.

30. Where a tribunal has decided an issue a party will not usually be able to pursue it in subsequent proceedings. Lord [NAME] in in [NAME] v [COMPANY] (No.1) [1991] 2 AC 93, [NAME]:

‘Issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant, one of the parties seeks to reopen that issue’.

31. In [NAME] v [COMPANY]/0316/15/[NAME], stated:

“The starting point, in construing an Unless Order, as any other Order, is the ordinary meaning of the words used. The legal and procedural context will always

Case Nos: 3313799/2022 & 3300081/2024 6

be relevant: for example, the context may show that the ordinary meaning cannot have been the meaning in the Order. In any event the party who has to comply with an Order must be able to see from its terms what is required to comply with it; an Order cannot be read expansively against the party who has to comply.”

32. In [COMPANY] v [NAME] and others [2022] ICR 175, His Honour Judge Taylor stated:

“Things are more difficult where a party is attempting to engage in the tribunal process but fails to comply with orders to the satisfaction of the other party and the employment tribunal. Problems may occur where an unless order is made and there is some attempt at compliance. .... problems are likely to be substantial if the unless order is ambiguous so that it is difficult to determine whether there has been material compliance, or something that falls short of material compliance, but should be taken into account in deciding whether to grant relief from sanction.”

Submissions

33. I heard lengthy submissions from counsel for the claimant and brief submissions from the [NAME], the latter being based on written submissions (152-154).

34. Counsel for the claimant’s submissions largely focused on matters which would more appropriately been brought as an appeal against the Judgment of EJ [NAME] or as an application for reconsideration against the Order of [ADDRESS]. I will not set them out in detail here.

35. Counsel for the claimant said that EJ [COUNSEL] cannot apply to the new claim as that claim was not in front of her at the time. I reject the argument that [NAME]’ decision does not apply to the [NAME] claim as set out in my conclusions below (paragraph 44).

36. Counsel reminded me that [NAME] was not the claimant’s first language and she did not have an interpreter at the last hearing. She was not legally represented (although her union representative was present). I accept the difficulties that would cause but I balance that against the fact that she was legally represented from 11 April 2024 and her solicitors had the benefit of the written Order of [ADDRESS].

37. Counsel for the claimant did not set out any application to amend at the hearing. In particular there was no wording suggested orally or in writing which would amend the claim. When pressed she made only general suggestions about how the claimant would seek to amend the claim. She said the respondent failed to adjust her role from November 2022 onwards and did not adjust their absence policy regarding her attendance at meetings. She did not put forward any details or dates. I observe that these are completely new allegations which are not in the claim forms. I cannot decide an application to amend on the basis of such scant details.

Case Nos: 3313799/2022 & 3300081/2024 7

38. In addition counsel said she wanted the [NAME] claim to be amended to claim that the claimant had a mental health disability in July 2022. For the reasons set out at paragraph 44 below I did not agree to this.

39. I was unclear whether counsel was submitting that the claimant had disabilities other than anxiety and depression at the relevant time. If that was the case no specific wording was suggested. It was noted that there had been a reference in the amended [NAME] following the first hearing to tinnitus and underactive thyroid but at no point, in either claim, has that been put forward as an impairment.

My conclusions

40. I have carefully considered whether the claimant has complied with the Order of [ADDRESS]. I kept in mind that any ambiguity in the Order should be resolved in favour of the claimant. I found that the Order was very clear and explicit regarding the application the claimant needed to make to avoid her claim being automatically struck out. She was to make an application to amend her claim to set out what complaints she had relating to disability for the period after October 2022. The Order set out what details needed to be included.

41. The claimant’s solicitors have not complied with the Order. They have sent a document requesting her claim be amended ‘to include her Claim for Disability Discrimination under S6 [NAME] 2010 as being disabled before 25 October 2022’. They have not set out details of complaints for the period after October 2022 but have sought to persuade the Tribunal to revoke the Judgment of [NAME] and find that there was a disability prior to 25 October 2022.

42. My task is to carry out a balanced consideration of whether there has been material compliance. There has been an attempt at compliance but the claimant’s solicitors have not made an application following the clear instructions set out by [ADDRESS]. I keep in mind that strike out is a draconian step and rather than adopt a punitive approach I heard detailed submissions from counsel for the claimant.

43. [ADDRESS] made it clear that even if the claimant applied to amend her claims the tribunal could still decide to strike out her disability complaints. I have gone on to consider whether the complaints should be struck out on the grounds that they have no reasonable prospects of success. I have considered the claim as pleaded, no application for an amendment to include complaints relating to her disability after October 2022 having been made. I have taken the case at its highest. I have given counsel for the claimant an opportunity to argue why the complaints should not be struck out.

44. The question of whether the claimant was disabled within the definition of the [NAME] 2010 has been decided by [NAME] after hearing evidence relevant to the issue. The decision was not appealed and has become final. The claimant’s status as a disabled person before 25 October 2022 is the issue upon which the disability complaints rest and has been argued and decided.

Accordingly, she did not have the claimed disability at the relevant

Case Nos: 3313799/2022 & 3300081/2024 8

time and there are no reasonable prospects of success of establishing disability discrimination.

45. I am aware that strike out is a draconian step and I accept that the claimant has been a litigant in person for most of the time until now. However she is now represented by [NAME] and still fails to put forward allegations of conduct relating to the period after 25 October 2022 which are connected to her disability.

46. Taking into account the opportunities the claimant has been given and the overriding objective to avoid delay I now find it is proportionate to strike out the disability complaints.

47. Accordingly the disability complaints are struck out on the grounds that they have no reasonable prospects of success. The complaints of race discrimination, victimisation and unfair dismissal remain.

__________________________________________

Employment Judge S. Matthews

_________________________________________

Date 22 July 2024

RESERVED JUDGMENT & REASONS SENT TO THE PARTIES ON

23 July 2024

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FOR EMPLOYMENT TRIBUNALS

Public access to employment tribunal decisions

Recording and Transcription

Case Numbers: 3313799/2022 & 3300081/2024 1

EMPLOYMENT TRIBUNALS

Claimant: [redacted] Respondents:

Heard at: Reading On: 16-18 February 2026 Before: Employment Judge [NAME] [NAME]: Claimant: [redacted] Respondent: [redacted] 1. The third respondent ([RESPONDENT] [NAME]) is removed as a respondent in these claims. 2. The claimant’s claims are dismissed. Approved by Employment Judge Anstis 18 February 2026

Judgment sent to the parties on:

26 April 2026

For the Tribunal:

Notes Reasons for the judgment having been given orally at the hearing, written reasons will not be provided unless a request was made by either party at the hearing or a written request is presented by either party within 14 days of the sending of this written record of the decision. If written reasons are provided they will be placed online. All judgments (apart from judgments under Rule 51) and any written reasons for the judgments are published, in full, online at

Case Numbers: 3313799/2022 & 3300081/2024 2 https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the [NAME]. If a Tribunal hearing has been recorded, you may request a transcript of the recording. Unless there are exceptional circumstances, you will have to pay for it. If a transcript is produced it will not include any oral judgment or reasons given at the hearing. The transcript will not be checked, approved or verified by a judge. There is more information in the joint Presidential Practice Direction on the Recording and Transcription of Hearings and accompanying Guidance, which can be found at www.judiciary.uk/guidance-and-resources/employment-rules-and-legislation-practice-directions/