Ms M Small v The Newcastle upon Tyne Hospitals NHS Foundation Trust — 2022

This was a public preliminary hearing by video on 9 August 2022 before Employment Judge S A Shore. The claimant, Ms M Small, was allowed to amend her case to add harassment related to disability, and the tribunal then considered strike out and deposit order applications for the disability discrimination and wages claims.

The tribunal held that Ms Small did not meet the definition of a disabled person at any relevant time. It found the evidence insufficient to show that anxiety amounted to a mental impairment with a substantial long-term adverse effect on day-to-day activities at the dates in issue. In reaching that conclusion the tribunal relied on the limited GP notes from 2000-2001, the AXA letter referring to anxiety/stress in 2001, the lack of medical treatment evidence, the limited detail in the impact statement, and the tribunal's assessment of the claimant's credibility. It gave little weight to an email from Christine Peek because of the lack of provenance and supporting evidence.

Because the claimant was found not to be disabled, the harassment claim and the reasonable-adjustments claim were struck out as having no reasonable prospect of success. The tribunal also recorded that the indirect discrimination claim and the discrimination arising from disability claim were dismissed upon withdrawal. It cited the statutory definition of disability in s.6 Equality Act 2010 and referred to Goodwin v Patent Office, J v DLA Piper UK and Herry v Dudley Metropolitan Council in its discussion of mental impairment and anxiety.

On the unlawful deduction from wages claim, the tribunal recorded that the dispute was largely evidential. The claimant said she had been asked to wear a face mask in a non-Covid-Safe area on 13 July 2021 and had not returned to work, while the respondent said it could not accommodate her without a mask and had offered home working or alternative work. The tribunal preferred the respondent's evidence, found the claim had little reasonable prospect of success, and ordered the claimant to pay a £1,000 deposit because it considered she had substantial savings but would not disclose the amount.