Ms. Carol Brain v Berrymans Lace Mawer Service Company and 1 other — 2022

This was an open preliminary hearing on whether Ms Carol Brain had a disability for Equality Act 2010 purposes during the agreed relevant period, 28 May 2019 to 23 October 2020. The tribunal found that her stress, anxiety and depression did not amount to a disability before 11 December 2019. It accepted that the 28 May 2019 performance review and informal performance improvement plan upset and stressed her, but held that, up to 10 December 2019, this was no more than a normal reaction to a demanding job, as she attended work normally, carried out her duties, and continued her social life without GP consultation for those conditions.

The tribunal accepted that by around 11 December 2019 Ms Brain was suffering from a mental impairment of stress, anxiety and depression, and that this continued until her dismissal on 23 October 2020. It relied on GP entries, including consultation notes in February, April, August, August and October 2020, to find a continuing pattern of symptoms. However, it concluded that the impairment did not have an adverse effect on her ability to carry out normal day-to-day activities in the relevant period. It found no satisfactory evidence that she was unable to perform normal work duties before furlough, and after furlough she was not working, so there was no evidence of work incapacity. On non-work activities, the tribunal found her account insufficiently balanced and lacking independent corroboration, particularly in light of documentary evidence showing an active social life in 2019 and early 2020.

Because the tribunal was not satisfied that Ms Brain was disabled within section 6 Equality Act 2010, the claims for discrimination arising from disability under section 15 and failure to make reasonable adjustments under sections 20-21 had no reasonable prospect of success and were struck out under Rule 37(1)(a). The tribunal said that, if it had been wrong on the adverse-effect issue, the impact described would likely have been substantial, but it did not need to decide duration. It referred to section 6 and Schedule 1 paragraphs 2(1) and 5(1) of the Equality Act 2010, and to authorities including Cruickshank, All Answers Ltd v W, Aderemi, SCA Packaging, Woodrup, and J v DLA Piper.