Ms D Derby v Southwark Council — 2021

This was a preliminary hearing on disability issues. The tribunal accepted that Ms Derby had suffered intermittent depression and anxiety since 2010, but found that it was well-managed and that the evidence did not show a substantial adverse effect on day-to-day activities for 12 months or at all in the relevant period. The judge noted that occupational health in late 2018 expected a return to work in early 2019 and recorded that she did not appear disabled under the Equality Act at that time.

The tribunal also considered a back-pain case based on sciatica and lumbago. It found the contemporaneous medical and factual evidence inconsistent with the claimant’s oral evidence about severity and mobility, including references to amateur boxing or boxercise, continued gym use, walking substantial distances to work and shops, and limiting vigorous exercise rather than being unable to exercise. The judge found that the claimant had been exaggerating her symptoms and concluded that she had not shown disability within the meaning of the Equality Act.

The disability discrimination claim was therefore struck out because the claimant had not established that she was disabled at the relevant time. The claimant’s application dated 23 November 2020 to amend her claim was dismissed. Applying the Selkent principles, the tribunal said that even if disability had been proved the amendment would have been refused because it would open up significant new disputes, was not a mere relabelling exercise, would require the respondent to deal in 2021 with events from 2018 and earlier, and there was no reasonable excuse for the delay in particularising the new matters. The judgment records that the claimant’s main claim was unfair dismissal, but this decision determined only the disability and amendment issues.