Miss A Digpal v SLG Marketing Limited — 2020

At a preliminary hearing on 21 January 2020, Employment Judge Phil Allen, sitting alone, decided whether Miss A Digpal was a disabled person in January 2019 for the purposes of her disability discrimination claim against SLG Marketing Limited. The claimant said she relied on depression and anxiety. The respondent said it did not know, and could not reasonably have known, that she had a disability during employment.

The Tribunal accepted that the claimant had an impairment and that the medical evidence recorded anxiety and depression over time, together with counselling and medication. However, it found there was very little evidence that the impairment had a substantial adverse effect on normal day-to-day activities lasting 12 months or likely to last 12 months. The claimant gave no evidence of day-to-day activities she could not undertake, and the Tribunal held that tearfulness alone was not enough. It also found that the August 2018 absence and fit note were linked to a particular distressing incident, not evidence of a long-term substantial effect.

The Tribunal further found that there was no evidence of what the effect on the claimant would have been without medication or counselling. It therefore concluded that the claimant had not proved that she was disabled within section 6 of the Equality Act 2010 at the relevant time. On that basis her disability discrimination claims were dismissed, and the final hearing listed for June 2020 was vacated.

On knowledge, the Tribunal preferred the respondent’s witnesses. It found the respondent knew the claimant had attended counselling, had a short absence in August 2018 due to anxiety and stress after an assault, and was tearful on return to work, but did not know she had a disability and could not reasonably have been expected to infer one from those matters in context. It noted that by the time of the appeal and grievance on 30 January 2019 the claimant had expressly alleged disability discrimination, and that knowledge would then have been present if a disability had been established.