Tribunal: Symptoms waxed and waned
A senior manager at law firm Berrymans Lace Mawer (BLM) was not a victim of disability discrimination, an employment tribunal has ruled.
The tribunal heard that during the period when Carol Brain claimed her stress, anxiety and depression constituted a disability, she went on holiday to Ibiza to celebrate a friend’s 60th birthday.
Ms Brain had worked for BLM’s service company since 1995 and became a legal support manager in 2000, latterly taking on responsibility for the services in the London and Birmingham offices.
However, she was put on a performance improvement plan in May 2019 by a new line manager and furloughed when the pandemic struck in March 2020, before being made redundant in October 2020.
Employment Judge Antoine Tinnion said [1] Ms Brain made “numerous claims” against BLM in 2021, including disability discrimination and failure to make reasonable adjustments.
The tribunal held a preliminary hearing in May to determine whether Ms Brain was a disabled person under the Equality Act 2010 on the grounds of stress, anxiety and depression. Both sides agreed that the relevant period ran from May 2019 to October 2020.
Ms Brain described a “gradually worsening social life from early 2019”, with close friends “concerned at my lack of joining them on their frequent get-togethers”, but the judge said that “on the face of the documentary evidence the claimant appears to have enjoyed a reasonably full, enjoyable social life in 2019 and early 2020”.
Judge Tinnion said that, by searching Ms Brain’s work email account, BLM was “able to identify numerous occasions in 2019 and 2020” in which she had “either participated in, stated an intention to participate in, or considered participating in, social events”.
These included references to her holiday in Ibiza in July 2019 “with about 12 couples for one of her best friend’s 60th birthday”.
In November 2019, she suggested “having cocktail drinks at The Ritz before meeting friends for lunch at Langan’s Brasserie”.
Further references were to birthday party with friends the same month, Christmas drinks with friends in December 2019, while forwarding an email to a friend noting a 30% discount at a beach hotel in Essex for February 2020.
Judge Tinnion said the tribunal was satisfied that being performance managed made Ms Brain “upset, anxious and stressed”, but her stress, anxiety and depression was not “particularly acute or outwith the norm”.
Her symptoms were serious enough to constitute a mental impairment in December 2019, when she was prescribed an anti-depressant, but the severity “waxed and waned over time” in the months before her dismissal.
The tribunal was not satisfied that during this period the mental impairment had an adverse impact on Ms Brain’s ability to carry out her normal, day-to-day work activities.
From December 2019 to April 2020, she took no time off work for stress and there was no evidence her performance was “materially impaired”. After she was put on furlough in April, she was not required to work.
Judge Tinnion said the tribunal was not satisfied that her witness evidence “provided a fair, balanced picture of her health or the impact her treatment at work in 2019 and 2020 had on her outside of work”.
During the first national lockdown, when Ms Brain referred to “avoiding leaving home/looked for excuses not to leave home”, the judge said this was a time when “almost everyone in the UK was required to stay home and engage in social distancing”.
In another example, Ms Brain referred to finding herself at home watching “mindless” TV reality/game shows. The judge said this was “an example of claimant’s ability to carry out a normal day-to-day activity, not example of an inability”.
The tribunal ruled that Ms Brain’s stress, anxiety and depression did not constitute a disability and she was not a disabled person under section 6 of the Equality Act 2010. As a result, her claims of disability discrimination and failure to make reasonable adjustments were struck out.
Since last Friday, BLM is now part of Clyde & Co.