What constitutes a disability?

Case update (Sullivan v Bury Street Capital Ltd)

Following a personal relationship with a woman Mr Sullivan became convinced that he was being monitored and followed by Russian gangsters connected to that woman.  In July 2013 the employer became aware that Mr Sullivan was in a ‘bad place psychologically and physically’, he was sweating and his state of mind was ‘extreme paranoia’. Mr Sullivan’s condition caused him difficulty in sleeping and affected his attendance and behaviour at work.

By September 2013 Bury Street Capital Ltd (the ‘Company’) invited Mr Sullivan on a business trip in which the Company observed that Mr Sullivan looked and performed well. On this trip Mr Sullivan also told the Company he was feeling better. At the start of 2014 a doctor and a psychologist noted improvements in Mr Sullivan’s presentation and working relationships. Mr Sullivan still thought he was being followed by a gang, but was better able to control this paranoia and was able to concentrate on work.

Between 2014 and 2017 regular reviews were conducted with Mr Sullivan because of concerns about his performance.  During this time, however, Mr Sullivan did not make reference to his concerns about the Russian gang or his earlier paranoia.

By September 2017 the Company had enough of Mr Sullivan work behaviour and decided to dismiss Mr Sullivan. The reasons for his dismissal included Mr Sullivan’s:

• Poor time keeping;
• Lack of communication;
• Unauthorised absences; and
• Lack of record keeping.

What did the tribunal decide?

Mr Sullivan tried to argue that his paranoia was the cause of his poor performance.  However, the employment tribunal found that Mr Sullivan’s condition did not qualify as a disability. It found that whilst the paranoid delusions that Mr Sullivan began suffering in May 2013 did give rise to a substantial adverse effect (SAE) this was only for a short time, and did not last beyond September 2013.

The tribunal found that the SAE recommenced sometime around April to July 2017, and was persisting at the time of Mr Sullivan’s dismissal. During this period, however, the tribunal found it was unlikely that the condition would be ‘long-term’ for the purposes of discrimination legislation (ie. lasting at least 12 months), having regard to the fact that the previous episode in 2013 had only lasted four to five months. The tribunal also noted that Mr Sullivan was under particular stress in 2017 due to discussions about his remuneration, which would not have last indefinitely, and considered that his condition would improve once those discussions had terminated.

The EAT

The EAT rejected Mr Sullivan’s appeal and amongst its findings they noted:

• That the tribunal had concluded that the effect of Mr Sullivan’s condition was not a SAE between September 2013 and April 2017.
• The EAT also rejected Mr Sullivan’s argument that the tribunal had been at fault when failing to find that the SAE that was established in 2013 was ‘likely to recur’, given that it had, as a matter of fact, recurred in 2017. The EAT found that the tribunal was required to make its assessment on the basis of conditions prevailing at the time, i.e. on the basis of the information available in 2013 and, at that time, the condition was not ‘likely to recur’; and
• the Company did not have knowledge that Mr Sullivan’s condition was likely to be long term, and so did not have actual or constructive knowledge that Mr Sullivan satisfied all the elements of the S.6 EqA definition of disability.

Learning point                                     

The key learning point here is that the fact that a condition DOES reoccur at some point in the future, does not mean that an earlier assessment that it is not likely to occur (and, thus, the condition is short term and not a disability) is always incorrect.   But always be ‘live’ to the possibility that a condition that could reoccur at some point may well be a disability – and proceed with caution if the likelihood of reoccurrence cannot reasonably be discounted.    

For advice on dealing with disability concerns or any Employment Law matters contact James Monk on 0345 20 73 72 8 or email jmonk@thursfields.co.uk