Sullivan v Bury Street Capital Ltd

The Employment Appeal Tribunal (EAT) has considered whether a claimant suffering from paranoid delusions had a disability for the purposes of the Equality Act 2010.

Section 6 of the Equality Act 2010 outlines that a person is disabled if they have a physical or mental impairment that has a substantial long-term adverse effect on their ability to conduct day-to-day activities. Schedule 1 of the Act takes a closer look at what constitutes ‘long term’, outlining an impairment can be classed as such if it meets the following:

  • it has lasted at least 12 months
  • it is likely to last for at least 12 months, or
  • it is likely to last for the rest of the life of the person affected.

It goes on to state that if an impairment ceases to have this substantial adverse effect, it is to be treated as continuing to have that effect if the effect is’ likely’ to recur.

The European Human Rights Commission outlines that a mental impairment should cover a ‘wide range of impairments relating to mental functioning’. However, when determining if such conditions amount to a disability, focus should always be placed on the effect of the impairment.

FACTS

The claimant in this case had worked for the respondent since 2008. Previously, there had been some tension between him and the chief executive of the organisation, due to concerns he was too relaxed in timekeeping and attendance. In May 2013 he developed paranoia, becoming convinced that a gang of Russians connected with his ex-girlfriend were following him. In his belief, they were monitoring all of his electronic communications, breaking into his house, and tracking his movements.

He would later specify that this belief caused him to deliberately avoid putting information into his work calendar, or deliberately misleading information. The chief executive became aware of this situation around July 2013, admitting that the claimant appeared to be in a ‘bad place psychologically’. Despite this, the two went on a business trip in September 2013, where the claimant’s condition appeared to be improving.

Over the next few years, the claimant received psychological help for his condition and started to manage it much more effectively. However, the relationship between him and the chief executive began to break down, with continued discussions being had over his time keeping and attitude. His paranoia did not come up again at work until 2017, where a discussion over his remuneration was held. Following this, the claimant’s condition decreased significantly, leading to him taking time off work.

He was later dismissed due to poor time keeping, unauthorised absences and lack of record-keeping and brought a claim to the employment tribunal (ET) for disability discrimination.

ET

The ET addressed whether the claimant was actually disabled for the purposes of the Equality Act, ultimately concluding that he was not.

They held that although there was a ‘substantial adverse effect’ present both in 2013 and 2017, it did not meet the definition of ‘long-term’. Following his improvement towards the end of 2013, this condition had not resulted in the relevant effect on the claimant. For example, he had been allowed to go on a business trip, which would not have been permitted if he was not up to the task, and colleagues had not noticed anything wrong with him.

The tribunal also concluded that, as the ‘substantial adverse effect’ had lasted for around five months in 2013, and the same in 2017, it did not meet the definition of ‘long term’.

EAT

The claimant appealed on numerous grounds. He argued that the tribunal had erred in finding he was not disabled as it had failed to conclude the substantial effects his condition had on him persisted; he had never stopped believing he was being followed between 2013 and 2017 but had simply learned to manage this better. He also asserted that, as this adverse effect had recurred in 2017, the conclusion that it was unlikely to recur was false.

The EAT dismissed his appeal. They found that the tribunal had lawfully drawn the distinction between the claimant’s condition, namely his paranoid beliefs, and the impact of this on his ability to carry out day-to-day tasks. Explaining that the effect of a condition can vary over time, they held that although there was a substantial adverse effect in 2013, and again in 2017, in neither case was it likely that the condition would last 12 months or more.

The tribunal had correctly assessed the intermittent years where the condition had not had an adverse effect, taking evidence from medical professionals, and other employees of the respondent, that the claimant’s condition had improved between September 2013 and April 2017.

They also dismissed his argument that his condition was likely to recur. This was because the law on recurring conditions relates to past disabilities; the claimant’s condition had continued throughout the period in question. Where an adverse effect does occur again at a later date, it does not mean that the tribunal automatically needs to conclude the first occurrence was ‘likely’ to recur; they need to assess the situation with the evidence at hand. The EAT agreed that the adverse effect, both in 2013 and 2017, were unlikely to recur as the triggering events; namely the claimant’s personal life issues and later his remuneration concerns, were unlikely to continue indefinitely.

Note for employers

This is an interesting case that explores the issue of a ‘long-term’ effect, finding that in situations where a mental impairment has continued, but the employee has become much better at managing it, they will not necessarily be able to bring a claim for discrimination later if the adverse effect flares up.

That said, it is always crucial to proceed with caution in these circumstances. Staff should always be invited to come forward if they feel they are struggling due to a condition, and organisations should always be willing to consider adjustments to assist them in their role.

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