Mr. G. Baker (Counsel) For the First and Third v Respondent — 2022

At a preliminary hearing in Bury St Edmunds on 23 March 2022, Employment Judge Mr A Spencer, sitting alone, determined whether Mr S Morter was a disabled person for the purposes of the Equality Act 2010 during the material period, agreed to be December 2020 to January 2021. The respondents did not accept that he met the statutory definition. The claimant relied on anxiety, including OCD, and chronic depression, and said those conditions affected his ability to comply with mask-wearing and a particular Covid-19 nasal swab test.

The tribunal accepted the claimant's evidence that he had long-standing anxiety and depression, that he had experienced symptoms for many years, and that earlier medical records from about 2010 to 2012 were consistent with episodes of anxiety and severe depression. It accepted his evidence that he later moved away from medication and conventional treatment and used self-help measures including diet, yoga, exercise, mindfulness, breathing exercises and a morning routine to control his symptoms. The judge found the claimant to be a genuine and truthful witness and rejected the suggestion that the absence of recent medical entries undermined his evidence.

The tribunal found that the claimant's mental impairments had a substantial and long-term adverse effect on normal day to day activities. It accepted evidence of difficulty sleeping, concentration problems, social anxiety, panic attacks, withdrawal, nausea, and anxiety when driving, and it held that the effects were more than minor or trivial. The judge held that mask-wearing had become a normal day to day activity by the material time, but that invasive nasal testing was not such an activity; in any event, the claimant's other activities were affected. The tribunal also held that the claimant's self-help regime counted as 'measures' for the purposes of Schedule 1 paragraph 5 of the Equality Act 2010. It therefore concluded that Mr Morter was a disabled person under section 6 of the Equality Act 2010 during the relevant period. No substantive liability findings or remedy were determined in this judgment.