An employee who suffered from paranoid delusions that affected his time-keeping, attendance and record-keeping was found not to have a disability for the purposes of the Equalities Act in Sullivan v. Bury Street Capital Limited.
From about July 2013, following a split with a girlfriend, Mr Sullivan suffered paranoid delusions that he was being followed and stalked by a Russian gang. These delusions affected his performance at work (which was already a matter of concern even before 2013). However, things improved after September 2013. Whilst there were sporadic references to Mr Sullivan’s poor attitude in that period, it was not until April 2017 that the paranoid delusions got worse and impacted on his day-to-day activities. Mr Sullivan’s employment was terminated on 8 September 2017. The reasons given for dismissal were his attitude and the fact that he was not considered to have the skillset to fulfil his role in the business.
Mr Sullivan brought (among other things) a claim of unfair dismissal, disability discrimination and deduction of wages against his employer. His claim for unfair dismissal was successful. The Employment Tribunal found, however, that Mr Sullivan was not disabled within the meaning of section 6 of the Equality Act 2010 (the EqA). Mr Sullivan appealed.
Definition of disability
A person has a disability within the meaning of the EqA if they have a physical or mental impairment which has a substantial long-term adverse effect on their ability to carry out normal day-to-day activities. An impairment will be deemed long term if: (i) it has lasted for at least 12 months; (ii) it is likely to last for at least 12 months; or (iii) it is likely to last for the rest of the person’s life.
The employer’s knowledge of an employee’s disability is also important as the duty to make reasonable adjustments only applies when the employer has “actual” or “constructive” knowledge of the employee’s disability. Constructive knowledge under the EqA arises where the employer could reasonably be expected to know of the disability even if it is, in fact, unaware of that disability.
If an impairment ceases to have the relevant substantial adverse effect (SAE), it will be treated as continuing to have that effect if that effect is likely to recur.
The EAT decision
The EAT found that, although Mr Sullivan did suffer from paranoid delusions, and the SAE was caused by the condition, this was not long term, as it was not likely to recur in the future.
Although Mr Sullivan continued to believe that he was being followed by the Russian gang beyond September 2013, it no longer had the relevant adverse effect on his ability to carry out normal day-to-day activities. This was evidenced by two of his colleagues and his performance at work. The EAT found that, although the SAE started again sometime around April to July 2017 and it was ongoing at the time of Mr Sullivan’s dismissal, it was not likely that it would last for 12 months, given that his previous episode in 2013 had only lasted four to five months.
The EAT also held that, even if the tribunal had been wrong on the issue of disability, it would have found that Mr Sullivan’s employer did not have actual or constructive knowledge of his disability at the relevant time, based on the observations of his work colleagues.
The EAT also clarified that an individual’s knowledge in their capacity as employee or agent of the employer may be relevant in determining whether the employer had the requisite knowledge of the person’s disability. It was reasonable to focus on the knowledge of Mr Sullivan’s colleagues, especially the one who worked in close proximity to him.
This case highlights the importance of the effect of an employee’s impairment on their day-to-day activities. At the time of the events being complained about, the adverse effect must be likely to last 12 months or more or to recur in future.
The EAT’s judgment also confirms the significance of the previous occurrence of the SAE on the definition of disability. If the SAE only lasted a short period of time in the past, this may provide an argument to the employer that any future SAE is also likely to be short term. If that argument is upheld the employee is unlikely to be considered disabled under the EqA.
Further, if an employee does not disclose their medical condition and their work colleagues do not observe any issues with their behaviour, the employer may be in a position to argue that they did not have any knowledge of their disability. If so they can say they were unable to make any reasonable adjustments in relation to the employee’s role.