This was a preliminary hearing as to whether the claimant had a disability in line with the definition required under the Equality Act 2010 (Disability Discrimination Act 1995 in Northern Ireland).  This would have led to amending the claim to add disability discrimination to the existing claim of unfair dismissal.   There were two issues; one relating to depression and anxiety and the second relating to sciatica and lumbago.

In terms of the issue involving depression and anxiety, it was agreed that the claimant did suffer from intermittent issues from 2010 but that they had been well managed.  These issues were not brought up in meetings with supervisors in 2018.   The claimant was off, due to her mental state, from August 2018 until February 2019.

On being assessed by occupational health, they concluded that she did not meet the definition of being disabled, as she did not have the symptoms longer than 12 months and that she was improving and it was not impacting her day-to-day activities.  Indeed, the claimant returned to work until she was dismissed in August 2019.  The Tribunal also noted that the claimant had declined to take any medication for the depression.

The second issue was the lower back pain from 2017.  The GP notes outlined that her social activities including amateur boxing, yet the claimant stated that it must have been an error. She said it was only ever boxercise, which the Tribunal noted as still involving strenuous activity.   Under oath, she stated that she suffered severe back pain all day every day since 2017, yet prior to her dismissal she said she only had ‘occasional discomfort’.

In examining the two bases for disability, the Tribunal held that the burden of proof is on the claimant to demonstrate that her conditions met the definition in Section 6 of the Equality Act 2010.   This was clearly not done, as she could not show that she was ‘substantially adversely affected’ for 12 months or at all.  The decision rested on the fact that the Tribunal found the claimant was exaggerating her symptoms. Accordingly, the claimant’s application to amend the claim was refused.

Practical Lessons

This case demonstrates once again that it is for the claimant to prove that they have a disability under the remit of the legislation.   It clearly requires evidence to be given and the Tribunal is acutely aware that some may seek to exaggerate their symptoms for the purposes of a claim. This occurred here, where the differences between evidence at the Tribunal differed from the numerous meetings held with the employer. Employers should be cognisant of taking notes relating to potential disabilities and how they have been described by the employees as a safeguard against exaggerated symptoms, in case they are met with a Tribunal claim.
https://assets.publishing.service.gov.uk/media/6061d271e90e072d99697534/Ms_D_Derby_v_Southwark_Council_-_2300023_2020_Preliminary_Hearing.pdf