Ms F v B&M Retail Ltd and 1 other — 2023

This was a preliminary hearing to decide whether the claimant was disabled within section 6 Equality Act 2010 by reason of depression, and whether sexual harassment claims about events involving Mr R in July 2021 and N in September 2021 were out of time. The Tribunal recorded that sexual harassment allegations against the second respondent concerning February 2022 were in time and could proceed, and those allegations were not determined by this judgment.

On disability, the Tribunal accepted that the claimant had a mental impairment at the material time and found that depression had a more than minor impact on some normal day-to-day activities around January to March 2022, including absence from work on 26 and 27 January 2022, poor sleep and eating, crying at work at times, possible effects on concentration, and the A&E attendance on 28 February 2022. It found insufficient evidence that the condition significantly affected her work performance before 25 January 2022 or her social interaction with others, and found that medication was unlikely to have materially changed the impact.

The Tribunal found the long-term requirement was not met. The significant impacts had not lasted 12 months by the material time and the evidence did not show that the impairment, at the necessary level of seriousness, was likely to continue for at least 12 months or likely to recur. The claimant was therefore not a disabled person at the relevant time.

On time limits, the Tribunal found the July 2021 and September 2021 harassment complaints were out of time. It rejected the argument that they formed part of conduct extending over a period, finding the allegations concerned different individuals, different conduct, and separate handling by the first respondent. It also held that it was not just and equitable to extend time, referring to the length of the delay, the reasons given, and prejudice to the first respondent because Mr R and N were no longer employees and relevant evidence, particularly concerning Mr R, was no longer available.