ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Judgment of the Employment Tribunal in Case No 4103223/2022 Following Open Preliminary Hearing Held at Edinburgh on the th of November 2022 Employment Judge J G d’Inverno Mr C Rodger v Forestry and Land Scotland — 2022

This was an open preliminary hearing to decide whether Mr Rodger had the protected characteristic of disability at the material times for his discrimination complaints, including the performance improvement plan period, the disciplinary process period, the March 2022 occupational health report issue, and the periods raised in the amendment application concerning RRA/TRA and the line manager move. The tribunal applied the four questions identified in Goodwin v Patent Office and considered whether the claimant had a mental impairment, whether it affected day to day activities, whether the effect was substantial, and whether it was long term.

The tribunal found that Mr Rodger had experienced stress and anxiety in connection with work matters and the extended probationary period, and that he had described himself as burning out. It held, however, that he had not been diagnosed with clinical depression at any material time, that the stress he described was a reaction to dissatisfaction with decisions or a colleague rather than a mental impairment in itself, and that the evidence showed only isolated periods of stress or anxiousness rather than a single ongoing impairment. It also found that the adverse effects did not amount to a substantial impact on normal day to day activities beyond what many people experienced in the context of Covid-related lockdown and related circumstances.

On longevity, the tribunal held that the asserted effects were linked to individual stressors and did not establish a long-term impairment for section 6 purposes. It referred to J v DLA Piper UK LLP, Herry v Dudley Metropolitan Council, and Cruickshank v VAW Motorcast Limited in its discussion. The tribunal therefore held that Mr Rodger was not a disabled person at the material times, lacked title to present the discrimination complaints, and those complaints were dismissed for want of title and jurisdiction.