Judgmen t approved by the Court for handing down Shield v Secretary of State for Department for Work and Pensions © EAT 2022 Page 1 [2022] EAT 116 Neutral Citation Number: [2022] EAT 116 Case No: EA - 202 0 - 00 1027 - LA IN THE E M P L O Y M E N T AP P E A L T R I B UN A L Rolls Building Fetter Lane, London, EC4A 1NL Date: 26 July 2022 B ef o r e : THE HONOURABLE MRS JUSTICE EADY DBE, PRESIDENT - - - - - - - - - - - - - - - - - - - - - B et w ee n : MR J SHIELD App ell ant - and – SECRETARY OF STATE FOR DEPARTMENT FOR WORK AND PENSIONS (FORMERLY BPDTS LIMITED) Respondent - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Sam Way , of counsel (instructed pro bono ) for the A pp el lant Morgan Brien , of counsel (instructed by Government Legal Depa r t ment ) for t h e R e s p o nd e n t H ear i ng d a t e : 1 9 July 2022 - - - - - - - - - - - - - - - - - - - - - JUDGMENT This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand - down is deemed to be 10:30am on 26 July 2022 Judgmen t approved by the Court for handing down Shield v Secretary of State for Department for Work and Pensions © EAT 2022 Page 2 [2022] EAT 116 S ummary Disability discrimination – section 15 Equality Act 2010 – unfavourable treatment be cause of something arising in consequence of disability – definition of disability – section 6 Equality Act 2010 In addressing the claimant’s complaint under section 15 Equ ality Act 2010 (“EqA”) relating to his dismissal, the ET found the “something” to be the claimant’s absences from work, which it held had arisen from his conditions of stress, anxiety and depression. Although it was accepted that the claimant was a disabl ed person for the purposes of section 6 EqA by reason of suffering from other conditions (including Asperger’s syndrome), it was disputed that his stress, anxiety and depression amounted to a disability. The ET considered that the only evidence as to the effect of these conditions related to the claimant’s work activities; it concluded that he had failed to show the requisite effect for section 6 purposes. The ET further found that t he claimant’s stress, anxiety and depression did not amount to mental imp airments. The claimant appealed. Held: allowing the appeal Although the ET had acknowledged that the effect for section 6 purposes might be demonstrated by reference to an impact on workplace activities, it had neither explained what those activities were nor made findings as to what effects his conditions of stress, anxiety and depression had been . Furt her, there wa s no indication that the ET considered the combined effects of the claimant’s different impairments. Those failings in respect of the question of effect also impacted on the ET’s finding on impairment, where its reasoning demonstrated a c onfu sion of reasoning between the cause of the claimed impairment rather than on the cause of the effect. The ET’s finding on the section 15 dismissal claim would be set aside and the issue of disability relevant to that claim remitted for redetermination. Judgmen t approved by the Court for handing down Shield v Secretary of State for Department for Work and Pensions © EAT 2022 Page 3 [2022] EAT 116 The Honourable Mrs Justice Eady DBE , President : Introduction 1. Th e issue raised by this appeal is as to the approach to be taken when determining whether a claimant , otherwise accepted to be disabled for different reasons , can rely on the fact that they suffered from conditions of work - related stress, anxiety and depression in seeking to come within the definition of disabled person for the purposes of the Equality Act 2010 (“EqA”) 2. In giving this j udgment, I refer to the parties as the claimant and respondent, as below. This is the full hearing of the claimant ’s appeal against a judgment of the Newcastle E mployment T ribunal ( Employment Judge Morris , sitting with lay members Ms Jackson and Mr Carter, o ver seven days in September and October 2020 , wit h a further day in chambers for deliberations; “ the ET ” ) By that judgment , the ET upheld the claimant’s complaint of unfair dismissal but dismissed his various claims of disability discrimination , harassment and victimisation. 3. Subsequent to the ET hearing and judgment in this case, the original respondent (a limited company wholly owned by the Department for Work and Pensions (“DWP”) ) was wound - u p and its assets and employees were transferred into the D WP , which has since been named as the respondent to this appeal. For convenience, in this judgment I have generally simply referred to “the respondent” but this should be understood to refer to BPDTS Limited as that was the entity em ploying the claimant at the relevant time. 4. The claimant has appealed against the ET’s judgment insofar as it relates to his claim of disability discrimination in respect of his dismissal, brought under section 15 EqA . A fter a hearing before His Honour Ju dge Auerbach under rule 3(10) Employment Appeal Tribunal Rules 1993 (as amended) , t he claimant was permitted to pursue amended Judgmen t approved by the Court for handing down Shield v Secretary of State for Department for Work and Pensions © EAT 2022 Page 4 [2022] EAT 116 grounds of appeal as drafted by counsel acting for him on that occasion under the Employment Law Advice and Assistance Scheme . T he claimant had been represented at the ET hearing by his mother but at the rule 3(10) hearing and today he has been represented by counsel, acting pro bono , albeit Mr Way did not appear at the earlier hearing. M r Brien , of counsel , represented the respondent’s interests before the ET as he does today The Relevant Background 5. T he claimant ’s case before the ET was that h e was disabled due to suffering from th e following conditions : n euro fibromatosis t ype 1, autistic syndrome disorder (ASD/Asperger’s syndrome), scoliosis and chronic pain, dyspraxia, irritable bowel syndrome and stress, anxiety and depression. That the claimant wa s disabled wa s accepted by the respondent but only on the basis that he ha d the impairments of Asperger’s syndrome and n eurofibromatosis ; the respondent d id not accept that the claimant’s other conditions – specifically, those of stress, anxiety and depression - we re impairments that met the statutory definition. Whil e the respondent accepted that the claimant suffered from stress, anxiety and depression , it contended that th o se conditions were caused by workplace issues and that when the claimant was away from wor k they fell below being a substantial impairment. 6. B PDTS Ltd provided specialist digital technology services to the DWP; it was a large employer with significant resources, including a dedicated human resources department. The claimant’s period of continu ous employment had started on 20 February 2015 but he, together with a number of colleagues, had transferred to the respondent’s employment on 27 March 2017. Judgmen t approved by the Court for handing down Shield v Secretary of State for Department for Work and Pensions © EAT 2022 Page 5 [2022] EAT 116 7. On 28 June 201 7 , the claimant had presented an earlier claim to the ET complaining about various matters preceding that date (“the 2017 claim”) , which he relied upon as acts of disability discrimination, harassment and victimisation A complaint relating to the claimant’s former employer ’s failure to make a reasonable adjustment in relation to a disabled parking space was upheld ; otherwise the claims were dismissed. 8. When the claimant transferred to his employment with BPDTS Ltd , he applied for Access to Work support and , by letter of 13 Ap ril 2017 , it was confirmed that he could get grant support for certain pieces of equipment and for one half - day Asperger’s/autism and dyspraxia training. The training was intended to be for those working with the claimant, to increase their awareness and understanding of neurodiversity issues , albeit the claimant did not wish his colleagues to be told of his specific conditions. 9. O n 11 August 2017, the claimant commenced a period of sickness absence During the claimant’s absence, two occupational health reports were obtained, which recorded the reasonable adjustments that had already been put in place for him and made further recommendations. There was also a “keeping in touch” meeting on 2 November 2017 , wh ich led to a back to work plan being produced , something that was updated upon the claimant’s phased return to work on 4 December 2017. Most relevantly, p ursuant to the claimant’s request, he was moved to a different team and it was recorded that the equipment to be provided by the Access t o Work grant funding had been received. The ET also set out the steps taken by the manager of the claimant’s new team (Mr Moorhouse) to ensure that he felt welcome and was supported (including Mr Moorhouse undertaking additional training relevant to n euro diversity and Asperger’s syndrome). 10. On 2 January 2018, the claimant commenced a further period of sickness absence from which he returned on 22 January 2018. There were issues at around this time as to adjustments sought for the claimant, in particular the suggestion made in a medical Judgmen t approved by the Court for handing down Shield v Secretary of State for Department for Work and Pensions © EAT 2022 Page 6 [2022] EAT 116 certificate dated 10 January 2018 that he should “ communicate only by email and avoid small talk and... not ... attend face - to - face meetings ”. As the ET accepted, Mr Moorhouse had a concern that this would be difficult to impl ement in relation to the claimant’s colleagues and might highlight his condition, draw unnecessary attention to him, and potentially isolate him. There were attempts to communicate with the claimant about these issues and Mr Moorhouse also asked him about the charitable work he undertook in his own time to see whether the way he managed that might be mirrored in the workplace Again the ET accepted that Mr Moorhouse was positive and supportive in his responses and concluded that it would have been impossible for the respondent to put in place the recommendations made in the medical certificate, in particular as the claimant had refused to agree that his colleagues be made aware of his impairments. 11. There were on - going issues regarding the claimant’s absences from work. A further absence o n 10 May 2018 meant that he had had four periods of absence between 12 June 2017 and May 2018, which triggered the respondent’s Sickness and Long - Term Absence Policy (“the policy”). Adopting the claimant’s preferred method of communication, Mr Moorhouse emailed him a number of questions regarding his absences, noting that he had been off - work for a total of 103 days in the preceding 12 - mo nth period , that not all the absences had been disability - related, that adjustments had been put in place to accommodate the claimant’s disability as far as possible, and that the claimant had failed to follow the absence reporting procedure or to provide additional information to the respondent. In the circumstances, by letter of 29 May 2018, Mr Moorhouse considered it appropriate to issue a first written improvement warning under the policy. 12. The organisation of the Asperger’s/autism and dyspraxia traini ng recommended in April 2017 had been long delayed, but this eventually took place in June 2018 and there was then a review of the management of the claimant in the light of that training. The ET agreed with the Judgmen t approved by the Court for handing down Shield v Secretary of State for Department for Work and Pensions © EAT 2022 Page 7 [2022] EAT 116 respondent that holding the training earlie r would have made no difference to the management of the claimant; Mr Moorhouse had already made the appropriate adjustments and the claimant had not agreed that his colleagues should be made aware of his conditions. 13. On 4 June 2018, the claimant commenc ed a further period of sickness absence . He never returned to work after this , remaining absent from work up to the date of his dismissal. 14. A n occupational health report of 13 July 2018 advised that the claimant was unlikely to return to work in the foreseeable future “ due to long - term, ongoing, work - related issues that have had a significant impact on his mental health and subsequently his overall health and wellbeing ”. T he adviser was unable to identify any modifications that might expedite the cla imant’s return to work and concluded that it was likely that as the claimant perceived the work - related stress to be ongoing , “ the symptoms of anxiety and depression will persist ”. On 28 September 2018, an attendance review meeting was conducted with the claimant by email. When asked what additional stressors were preventing him from returning, the claimant responded that , whil e the issues he had raised had now been addressed, th is demonstrated that they could have been resolved earlier; he wanted to know that responsibility for his illness was acknowledged and needed to clear his name 15. A nother occupational health report was produced on 31 October 2018, which confirmed that the claimant remained unfit for work and that , unless the employment issues were r esolved , the prospects for a sustained and successful return to work were poor and there were no particular adjustments that could be recommended at that stage. As the main sustaining factor for the claimant’s mental health issue s appeared to be the poor relationship he had with the respondent, it was suggested that a neutral third - party mediation might be a way forward and it was stated that the claimant might benefit from a fresh start in a new team. Th e s e recommendations were f ollowed up with a further attendance review meeting (by email) on 23 November 2018, during which the claimant Judgmen t approved by the Court for handing down Shield v Secretary of State for Department for Work and Pensions © EAT 2022 Page 8 [2022] EAT 116 made clear that he did not wish to consider another team move but indicated that he was willing to participate in mediation. This latter suggestio n was taken forward by M r Moorhouse but subsequently, after speaking with both the claimant and Mr Moorhouse , the mediator formed the view that a referral for mediation would not be appropriate. 16. Given the claimant’s continued absence , and th ere being no i ndication when he would return to work, on 14 January 2019 Mr Moorhouse notified th e claimant th at his case would be referred to a decision - taker, Mr Smith, who would determine whether he should be dismissed, moved to another role, or whether his sickness absence level could continue to be supported. At Mr Smith’s request, Mr Moorhouse indicated the impact of the claimant’s continued absence, explaining that as the claimant had never completed his training it had not been possible to utilise him in a team in which there were currently two contractors and an employee who was due to retire at the end of April 2019 (into whose role the claimant could otherwise have been placed). 17. On 4 March 2019, a meeting took place between Mr Smith and the claimant , conduct ed by an email exchange of some 1 ¾ hours. During the course of this exchange, Mr Smith continu ed to seek confirmation from the claimant of a date by which he could return to work ; making clear that all adjustments would be kept in place Although the cl aimant at times talked of returning to work on 1 April 2019, this was subject to various caveats. In the end, Mr Smith closed the meeting, indicating he might contact the claimant if he needed to clarify any thing but would otherwise make his decision by 11 March 2019. 18. At around noon on 5 March 2019, the claimant email ed Mr Smith stating that he was currently being treated for a condition unrelated to his disabilities but wish ed to attempt a return to work once he had been discharged from that treatment. Although the ET considered that the claimant’s email failed to actually confirm a return date, it recorded Mr Smith’s evidence in this regard as follows: Judgmen t approved by the Court for handing down Shield v Secretary of State for Department for Work and Pensions © EAT 2022 Page 9 [2022] EAT 116 “ ... in making his decision he would take into account all the documents that he had up to the end of the meeting on 4 March 2019, ‘ there has to be a line drawn ’ He was asked, however, whether if he had received the email of 5 March from the claimant prior to that line being drawn that would have made a difference to his decision. He an swered , ‘ Yes ’ because the claimant had predicted a return. He explained that he ‘ would then go away and do the art of the possible – could I get everything into place.’” 19. By letter of 11 March 2019, Mr Smith communicated his decision to the claimant, stati ng that he had determined that the claimant’s employment should be terminated , explaining that he would not be required to work out his notice and that the effective date of termination would be 16 April 2019 Although that letter suggested that Mr Smith had taken account of the claimant’s email of 5 March 2019, in his evidence he clarified that the email had been “ acknowledged not considered ”. The ET concluded that , had he taken the claimant’s email into account, Mr Smith would have made a different decision: “ The Tribunal obviously cannot say what that decision might have been but it is clear that the claimant would not have been dismissed on 11 March ... as Mr Smith said in oral evidence, he would have gone away and done the art of the possi ble to see whether he could get everything in place. ” 20. The claimant appealed against Mr Smith’s decision and this was considered by a Mr Bolton who refused the claimant’s appeal by letter of 3 May 2019. The ET’s Decision and Reasoning 21. T he claimant made various complaints of disability discrimination ; relevantly for present purposes, he complained that his dismissal amounted to unfavourable treatment because of something arising in consequence of his disability , contrary to section 15 EqA The claimant also c laimed that he had been unfairly dismissed. 22. In addressing the claimant’s complaint of unfair dismissal, t he ET accepted that the respondent had shown that the reason for the dismissal was related to his capability It further found that the respondent had reasonable grounds for the conclusions it had Judgmen t approved by the Court for handing down Shield v Secretary of State for Department for Work and Pensions © EAT 2022 Page 10 [2022] EAT 116 reached in this regard and the ET was generally satisfied that the respondent had carried out a sufficient and reasonable investigation. Noting Mr Smith ’s evidence regardi ng the claimant’s email of 5 March 2019 , however, the ET concluded that a further reasonable step to get the claimant back into work would have been for Mr Smith to engage with what he described as “ the art of the possible ” , to determine whether the claima nt could return to work and to thus wait a little longer On that basis, the ET concluded the claimant’s dismissal had been unfair. 23. In considering the claimant’s claim of disability discrimination under section 15 EqA , the ET accepted that the claimant was dismissed because of his attendance record/absence from work: that was the “ something ”. Th at led to the question whether that “ something ” arose in consequence of the claimant’s disabilities. The ET accepted that the claimant’s disabilities w ere Asperger’s syndrome and n eurofibromatosis but, on the evidence available, his absences had not related to those conditions but to his stress, anxiety and depression in relation to work - related matters. 24. At paragraph 3.3 of its judgment, t he ET noted t he guidance provided in J v DLA Piper UK [2010] ICR 1052 EAT, which it summarised as follows: “ ... a tribunal should start by considering the adverse effect issue to determine whether the claimant’s ability to carry out normal day - to - day activities has been substantially impaired by symptoms characteristic of depression for 12 months or more because that would in most cases be likely to lead to a conclusion that he or she was indeed suffering ‘clinical depression’ rather than simply a reaction to adverse circ umstances .” It concluded, however, that: “... that recommendation is difficult to follow given that although the Tribunal has evidence before it as to the length of time during which the claimant has had these conditions of stress, anxiety and depression it has little evidence o f the effect of such conditions on the claimant’s ability to carry out normal day - to - day activities. The evidence that the Tribunal does have of the claimant’s day - to - day activities is limited to his work.” Judgmen t approved by the Court for handing down Shield v Secretary of State for Department for Work and Pensions © EAT 2022 Page 11 [2022] EAT 116 Acknowledging case - law that made clear that work - related issues “ can result in real mental impairment ”, the ET stated that it: “... had these points in mind but it is repeated that there is little additional evidence in this regard. Indeed, Mrs Shield state d that the claimant enjoys a good and supportive family life and there is also evidence ... that these conditions do not impact upon him undertaking the day - to - day activities connected with his charitable work .” Further referring to the fact that the claiman t had not relied on the conditions of stress, anxiety or depression in the 2017 claim , the ET held that the claimant had not discharged the burden upon him to demonstrate that these conditions had had a substantial effect on his ability to carry out normal day - to - day activities. 25. The ET continued, in any event, to consider whether the claimant’s conditions of stress, anxiety and depression might amount to impairments. In this regard, it explained its approach (at paragraph 3.6 of its judgment) , as follows: “ Adverting to the above case law the Tribunal has sought to differentiate between what are classified above as being ‘ clinical depression ’ and ‘ adverse life effects ’ ; in this case those life effects being the issues, or what the OH reports often refer to as being the claimant’s perceived issues, at work. ” The ET then set out various references in the evidence (including the medical evidence, the claimant’s witness statement, the occupational health reports, and the contemporaneous workplace documentation) which it considered demonstrated that the claimant’s conditions of stress, anxiety and depression were responses to work - related issues (or the claimant’s perception of those issues) Saying that it had considered this evidence in the light of the statute, the case law and the statutory guidance , the ET set o ut its conclusion on the question of impairment at paragraph 3.7 of its judgment , as follows: “... this is a class of case where a reaction to circumstances perceived as adverse has become entrenched; where the claimant will not give way or compromise over issues at work, and refuses to return to work (notwithstanding the efforts made by Mr Moorhouse to achieve that end ... , Judgmen t approved by the Court for handing down Shield v Secretary of State for Department for Work and Pensions © EAT 2022 Page 12 [2022] EAT 116 yet in other respects he suffers no or little apparent adverse effect on normal day - to - day activities; rather the evidence before the Tribunal suggests a tendency to nurse grievances (for example, the claimant's continued references to historical wrongdoings and the behaviours of members of his previous team before he joined that of Mr Moorhouse being such that he could not return to work until he had received an apology from the respondent), or a refusal to compromise. ” On that basi s, the ET held that it was not satisfied that the claimant’s conditions of stress, anxiety or depression were mental impairments. 26. Returning to the claim brought under section 15 EqA , the ET reiterated its finding that the claimant’s absences, leading to t he application of trigger points under the policy and, ultimately, to his dismissal, were related to his conditions of stress, anxiety or depression, which the ET had found were not disabilities for the purpose of the EqA Had that not been the case, alth ough the ET accepted that the respondent had shown legitimate aims, given Mr Smith’s evidence, it considered that less unfavourable steps (short of dismissal) would have been open to the respondent, albeit that any delay , while the “ art of the possible ” was investigated , might have been relatively short. The Law 27. The statutory definition of disability is at section 6 EqA , which is to be read together with schedule 6. As relevant to the present appeal, section 6 provides: “ (1) A person (P) has a disability if — (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long - term adverse effect on P's ability to carry out normal day - to - day activities. ” 28. The burden of proving disability is with the claimant (see RBS v Morris [2011] UKEAT/0436/10 at paragraph 55) 29. The approach that an ET ought to adopt in determining the questions raised by section 6 was considered by the EAT (Underhill P, as he then was, presiding) in J v DLA Piper UK [2010] Judgmen t approved by the Court for handing down Shield v Secretary of State for Department for Work and Pensions © EAT 2022 Page 13 [2022] EAT 116 ICR 1052 . In particular, in considering the distinction between “ impairment ” and “ effect ”, it was stated (see paragraph 40): “( 1) It remains good practice in every case for a tribunal to state conclusions separately on the questions of impairment and of adverse effect (and, in the case of adverse effect, the questions of substantiality and long - term effect arising under it) as recommended in Goodwin [ Goodwin v Patent Office [1999] ICR 302 ]. (2) However, in reaching those conclusions the tribunal should not proceed by rigid consecutive stages. Specifically, in cases where there may be a dispute about the existence of an impairment it will make sense, for the reasons given in para. 38 above, to start by making findings about whether the claimant's ability to carry out normal day - to - day activities is adversely affected (on a long - term basis), and to consider the question of impairment in the light of those findings. ” 30. The reference to the EAT’s earlier reasoning at paragraph 38 J v DLA Piper was the subject of consideration by the ET in the present case (at paragraph 3.3 of its judgment) and it is helpful to set out the relevant passage, as follows : “... There are indeed sometimes cases where identifying the nature of the impairment from which a claimant may be suffering involves difficult medical questions; and we agree that in many or most such cases it will be easier – and is entirely legitimate – for t he tribunal to park that issue and to ask first whether the claimant's ability to carry out normal day - to - day activities has been adversely affected – one might indeed say ‘ impaired ’ – on a long - term basis. If it finds that it has been, it will in many or most cases follow as a matter of common - sense inference that the claimant is suffering from a condition which has produced that adverse effect - in other words, an ‘ impairment ’ . If that inference can be drawn, it will be unnecessary for the tribunal to try to resolve difficult medical issues of the kind to which we have referred. ” 31. More specifically, in J v DLA Piper the EAT considered how the assessment of impairment and (long - term) effect might be undertaken in cases involving depression, where there is a dispute as to whether that amounts to an impairment in the particular circumstances of the case; at paragraph 42, t he EAT offered the following guidance: “ The first point concerns the legitimacy in principle of the kind of distinction made by the Tribunal ... between two states of affairs which can produce broadly similar symptoms: those symptoms can be described in various ways, but we will be sufficiently understood if we refer to them as symptoms of low Judgmen t approved by the Court for handing down Shield v Secretary of State for Department for Work and Pensions © EAT 2022 Page 14 [2022] EAT 116 mood and anxiety. The first state of affairs is a mental illness – or, if you prefer, a mental condition – which is conveniently referred to as ‘ clinical depression ’ and is unquestionably an impairment within the meaning of the [Equality] Act [2010] . The second is not characterised as a mental condi tion at all but simply as a reaction to adverse circumstances (such as problems at work) or – if the jargon may be forgiven – ‘ adverse life events ’ ... [T] he value or validity of that distinction could be questioned at the level of deep theory; and even if it is accepted in principle the borderline between the two states of affairs is bound often to be very blurred in practice. But we are equally clear that it reflects a distinction which is routinely made by clinicians ... and which should in principle be re cognised for the purposes of the Act. We accept that it may be a difficult distinction to apply in a particular case; and the difficulty can be exacerbated by the looseness with which some medical professionals, and most laypeople, use such terms as ‘ depre ssion ’ ( ‘ clinical ’ or otherwise), ‘ anxiety ’ and ‘ stress ’ . Fortunately, however, we would not expect those difficulties often to cause a real problem in the context of a claim under the Act. This is because of the long - term effect requirement. If, as we rec ommend at para. 40 (2) above, a tribunal starts by considering the adverse effect issue and finds that the claimant's ability to carry out normal day - to - day activities has been substantially impaired by symptoms characteristic of depression for twelve mont hs or more, it would in most cases be likely to conclude that he or she was indeed suffering ‘ clinical depression ’ rather than simply a reaction to adverse circumstances: it is a common - sense observation that such reactions are not normally long - lived. ” 32. Th e distinction identified in J v DLA Piper , between depression and a reaction to adverse life events, was the subject of further judicial consideration in Herry v Dudley Metropolitan Council [2017] ICR 610 EAT (His Honour Judge Richardson presiding). That case involved a teacher with dyslexia who suffered from work - related stress, albeit the EAT noted that there was “ a dearth of information in the medical documents as to the nature of the ‘work - related stress ’”. Addressing the guidance pr ovided at paragraph 42 J v DLA Piper , the EAT made the following observations: “55. This passage has, we believe, stood the test of time and proved of great assistance to Employment Tribunals. We would add one comment to it, directed in particular to diag noses of “stress”. In adding this comment we do not underestimate the extent to which work related issues can result in real mental impairment for many individuals, especially those who are susceptible to anxiety and depression 56. Although reactions to a dverse circumstances are indeed not normally long - lived, experience shows that there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue a t work, and refuses Judgmen t approved by the Court for handing down Shield v Secretary of State for Department for Work and Pensions © EAT 2022 Page 15 [2022] EAT 116 to return to work, yet in other respects suffers no or little apparent adverse effect on normal day - to - day activities. A doctor may be more likely to refer to the presentation of such an entrenched position as stress than as anxiety or depression. An Employment Tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances, or a refusal to compromise (if these or similar findings are made by an Employment Tribunal) are not of themselves mental impairments: they may simply reflect a person’s character or personality. Any medical evidence in support of a diagnosis of mental impairment must of course be considered by an Employment Tribunal with gr eat care; so must any evidence of adverse effect over and above an unwillingness to return to work until an issue is resolved to the employee’s satisfaction; but in the end the question whether there is a mental impairment is one for the Employment Tribuna l to assess.” 33. In thus identifying that a person might have a reaction to work issues whilst suffering little or no apparent adverse effect on normal day - to - day activities, the EAT in Herry was not suggesting that a substantial and lon g - term adverse effect on a person’s activit ies which relate to their effective participation in professional life can not equate to a disability (as it further made clear at paragraph 64 of the judgment) The potential relevance of work - related activities to the assessment of d isability has been considered in a number of cases, such as Sobhi v Commissioner of Police of the Metropolis UKEAT/0518/12 per Judge Keith at paragraphs 14 - 19 , and by the EAT (HHJ Auerbach presiding) in Igweike v T SB Bank PLC [2020] IRLR 267 , where it was observed: “60. ... There was no dispute as to the law, ... the requisite effect on normal day - to - day activities may be established if there is a requisite effect on normal day - to - day professional or work activities, even if there is none on activities outsi de of work, or the particular job. However, in focussing on this important strand in the jurisprudence, and in recognising the sound policy - driven reasons for it, one should not lose sight of the fact that in many, perhaps, I would venture, most successful cases, disabled status is established because the requisite effects are found on normal day - to - day activities outside of work, or both outside of and inside of work. 61. It is not wrong, therefore, for a Tribunal also to look for evidence of such effects outside of work, which may, in a given case, by themselves support the claim. In this case, therefore, the Judge was not wrong, as such, to consider what the evidence was about the effects, or symptoms, that the Claimant said he was experiencing in daily life in general. The Judge would indeed have been wrong not to consider this, as it might potentially have been enough to get the Judgmen t approved by the Court for handing down Shield v Secretary of State for Department for Work and Pensions © EAT 2022 Page 16 [2022] EAT 116 Claimant’s case home. The real issue is whether he wrongly failed also to engage properly with the evidence about the effects in work.” 34. As is common ground, section 6 requires a claimant to demonstrate a “ substantial ” adverse effect, as opposed to, for example, a “ total ” adverse effect . As such, consideration of what a c laimant can do will not suffice to determine whether or not the y suffer from a substantial adverse effect. W here it is accepted that there is an effect on day - to - day activities, an ET must , however, make findings as to what those effects are ; see Elliot v Dorset Cou nty Council [2021] IRLR 880 EAT, where the ET had found the effect to have been “ no more than minor ” without clearly stat ing what acti vities had been impacted , leading His Honour Judge Tayler to observe (see paragraph 73 ): “... I fail to see how that could be determined without a clear determination of which ‘range of day - to - day activities’ were ‘clearly affected ... ’” 35. Moreover, t he requisite substantial adverse effect may arise from the combined effects of more than one impairm ent , whether or not the impairments in issue are interrelated. A s was explained by the EAT (His Honour Judge Ansell presiding) in Ginn v Tesco Stores Ltd UKEAT/0197/05 : “18. Finally on the issue of the combination of the two illnesses. The Tribunal set out their task to consider whether put together they amounted to something greater than the parts and would as such amount to a disability. It went onto say that these were two conditi ons which are not related and which do not interact with each other. The complaint of the appeal is it was not necessary for them to decide whether or not the illnesses were either related or interacted with each other. When one looks at the relevant passa ge in the guidance, paragraph A(6) it sets out the position thus: ‘ A person may have more than one impairment any one of which alone would not have a substantial effect. In such a case account should be taken whether the impairments together had a substant ial affect overall on the person's ability to carry out normal day to day activities. ’ 19. There is no suggestion that they have to be illnesses which inter - react or have a relationship. ...” Judgmen t approved by the Court for handing down Shield v Secretary of State for Department for Work and Pensions © EAT 2022 Page 17 [2022] EAT 116 36. A s for “ i mpairment ” , that term is to be given its ordinary and natural meaning ( McNicol v Balfour Beatty [2002] IRLR 711 per Mummery LJ at paragraph 17 ) ; there is no need to determine a medically diagnosed cause of an impairment ( Walker v Sita Information Networking Computing Ltd UKEAT/0097/12 per Langstaff P at paragraphs 10 - 11 and 21 ). The Claimant’s Appeal and Submissio ns in Support 37. By his first ground of appeal, the claimant challenges the ET’s finding as to the effects of his impairment. In this regard, h e first complains that the ET failed to properly enquire as to the effects of the stress, anxiety and depression on which he relied as an impairment, thus failing in its duty to the claimant as a litigant in person ; it is the claimant’s contention that the ET fail ed to have proper regard to the guidance provided by the Equal Treatment Bench Book , as suggested at paragraph s 24 - 26 Co x v Adecco Group UK & Ireland and ors [2021] ICR 1307 EAT , the claimant submitting that a finding that he had not discharged the burden of proof required the same caution as a determination that a claim ha s no reasonable prospect of success. Secondly, under this ground, the claimant objects that the ET failed to make findings as to what he could not do rather than what he could ; t hirdly, that the ET failed to allow that the impact of work issues might be sufficient. Fourth, he contends that the ET failed to consider the possible combined effects of his different conditions, erroneously isolating the effects of his stress, anxiety and depression from (for instance) his suffering from Asperger’s syndrome. 38. By his second g round of appeal, the claimant addresses the ET’s finding on mental impairment . He complains that the short - comings of the ET’s findings on effect also infect its approach to the question of mental impairment ; the former being relevant to the finding as to the latter (see J v DLA Piper at paragr aph 38). Relatedly, by his third ground of appeal, the claimant contends that the ET erred in its approach to, and reliance upon, the case of Herry It is the claimant’s case that Herry is merely authority for the proposition that the Judgmen t approved by the Court for handing down Shield v Secretary of State for Department for Work and Pensions © EAT 2022 Page 18 [2022] EAT 116 approach allowed in J v DLA Piper will not necessarily always result in a finding of impairment : the link can be broken In the present case, however, the ET applied th e distinction in Herry (between a mental health impairment and a personality characteristic) to wha