Mr A Booth v Creative Support Limited — 2021

Employment Judge McDonald, sitting alone, heard a preliminary issue on whether Mr A Booth was disabled within section 6 of the Equality Act 2010. The judgment records that the claimant had brought unfair dismissal, disability discrimination, discrimination arising from belief, and protected disclosure detriment complaints, but this hearing only decided the disability issue. The belief discrimination issue was to be dealt with at a later preliminary hearing, the unfair dismissal claim was to proceed in any event, and the protected disclosure detriment claim had already been withdrawn and dismissed on withdrawal.

The tribunal accepted that the claimant had suffered from anxiety since 2017, supported by a GP letter and a fit note, but it found the evidence did not show a substantial adverse effect on normal day-to-day activities during the relevant period. The tribunal noted the absence of GP notes, the limited detail in the claimant's statements, and the claimant's own evidence that his anxiety was triggered by specific events rather than constantly affecting daily life. It also relied on supervision notes and wellbeing documents showing that in July 2020 the claimant said he was generally very well and felt confident and very safe continuing to work during the pandemic.

The tribunal found no evidence of adverse effect before 27 November 2020, when the claimant was first signed off sick for anxiety. The fit note did not identify functional effects, the claimant continued to carry out self-care and to go out, and the tribunal accepted that he was able to seek legal advice and file a hate crime report, which it treated as inconsistent with impaired concentration. The offer of medication, and the claimant's refusal of it in favour of other coping strategies, was not enough on its own to establish a substantial adverse effect.

On that basis the tribunal held that Mr Booth was not a disabled person for the purposes of section 6 during the relevant period, so the direct disability discrimination and discrimination arising from disability claims were dismissed. The tribunal added that, if it had been wrong about substantial adverse effect, it would have found any such effect began on 27 November 2020 and had not lasted 12 months, with no evidence that it was likely to continue or recur.