Did an employee who was suffering from paranoid delusions have a disability?
No – according to the Employment Appeal Tribunal (“EAT”) in the case of Sullivan v Bury Street Capital Limited.
The Law
The Equality Act 2010 (“EQA 2010”) prohibits discrimination on the grounds of disability. To qualify for protection, employees must demonstrate that they have or had a disability at the relevant time. The EQA 2010 sets out a technical definition of disability which is a physical or mental impairment that has a substantial and long term adverse effect on an individual’s ability to carry out day to day activities.
In the case of Sullivan v Bury Street Capital Limited the Employment Tribunal (“ET”) and EAT were concerned with the last part of the test, that is whether an impairment is long term. The EQA 2010 makes it clear that an impairment will have a long term effect if:
- It has lasted 12 months;
- It is likely to last 12 months; or
- It is likely to last for the rest of the person’s life.
An employer’s knowledge of disability is also important because an employer cannot be liable for direct disability discrimination, discrimination arising from disability or failure to make reasonable adjustments unless it knew, or should have known, about the employee’s disability.
Facts of the case
Mr. Sullivan was employed by Bury Street Capital Limited (“Bury Street”) as a Senior Sales Executive from 2008 until his dismissal in September 2017. Mr. Sullivan had a somewhat strained relationship with Mr. Drake, the Chief Executive of Bury Street, from the outset of his employment as a result of his relaxed approach to time keeping, attendance and documenting his activities.
In May 2013 Mr. Sullivan embarked on a short relationship with a Ukrainian woman. The relationship lasted 2 months following which Mr. Sullivan became convinced that he was being followed by a Russian gang who were monitoring his emails, internet use and calls. Mr. Drake became aware of Mr. Sullivan’s beliefs about being stalked by a Russian gang in July 2013. He noted at the time that Mr. Sullivan was in a “bad place psychologically and physically” and that he was suffering from “extreme paranoia”. Mr. Sulllivan was having difficulty sleeping and his behaviour at work had become erratic.
In September 2013 Mr. Sullivan joined Mr. Drake on a business trip to New York. Mr. Sullivan performed well on the trip. He subsequently saw a Doctor and Psychologist who both noted improvements in Mr. Sullivan’s presentation and work relationships. Mr. Sullivan did still believe that he was being followed by a Russian gang but was able to ignore it and concentrate on his work.
Between July 2014 and September 2017 Mr. Drake conducted regular reviews with Mr. Sullivan. A consistent theme during those reviews was Mr. Sullivan’s time keeping and attitude at work although there was no specific reference to the Russian gang problem. A colleague, who had joined Bury Street in September 2014 and who worked closely with Mr. Sullivan, was not aware of Mr. Sullivan suffering from paranoia and had not noticed any change in his behaviour or appearance during the period of his employment with Bury Street.
Mr. Sullivan’s mental condition deteriorated again in April 2017 when his timekeeping and performance worsened. Mr. Drake’s frustrations with Mr. Sullivan came to a head in September 2017 when he wrote to him on 8th September 2017 to dismiss on the grounds of his time keeping, lack of communication, unauthorised absence and lack of record keeping.
Mr. Sullivan issued proceedings for disability discrimination amongst other things.
Decision of the ET
The ET considered the issue of disability. Mr. Sullivan claimed that during the relevant period (August 2013 – September 2017) he was a disabled person by reason of his paranoia, paranoid delusions, stress, anxiety and depression. The ET accepted that the paranoid delusions that Mr. Sullivan began to suffer with in May 2013 did have a substantial adverse effect (“SAE”) on him at that time but that this effect did not extend beyond September 2013. Whilst Mr. Sullivan still believed in the Russian gang throughout his employment this belief was no longer having a SAE on him; he had learned to ignore it and his performance and appearance improved as a result.
Mr. Sullivan’s mental condition did deteriorate again in April 2017. However, bearing in mind how long the previous episode had lasted in 2013, the ET did not consider it likely that the SAE on Mr. Sullivan would last for 12 months or that it was likely to recur. In the circumstances, the ET concluded that his condition did not meet the definition of a disability in the EQA 2010.
In the alternative, the ET confirmed that if the condition did amount to a disability, Bury Street had no knowledge of the disability and therefore could not be liable for the claims.
Mr. Sullivan appealed to the EAT.
Decision of the EAT
The EAT rejected Mr. Sullivan’s appeal and confirmed that he was not disabled. In its view, while Mr. Sullivan’s paranoid delusions did have a SAE on his ability to carry out day to day activities, the condition was not long term as it was not likely to recur in the future.
The EAT drew a distinction between Mr. Sullivan’s delusional beliefs (that persisted throughout) and the effect that such beliefs had on his ability to carry out day to day activities. The EAT took into account medical evidence and also the accounts of Mr. Sullivan’s colleagues to determine that his condition did not have a SAE on him between September 2013 and April 2017. Mr. Sullivan’s condition did deteriorate again in April 2017 and the SAE started again, but in the EAT’s view it was not likely that it would last for 12 months
In terms of knowledge of disability, Mr. Sullivan argued that his colleagues’ knowledge of his condition was irrelevant and that the ET should have focused on what Bury Street, as a corporate entity, knew or ought reasonably to have known. The EAT rejected this argument and made it clear that an individual’s knowledge as an employee or agent of a company may be relevant in determining whether the company itself has the necessary knowledge of disability. That was found to be particularly relevant in this case as Bury Street was a small company with only 5 or 6 employee at any one time.
Comment
This case is a useful reminder of the statutory test for a “disability” and the importance of the effect of an impairment on an individual’s ability to carry out day to day activities. In this regard, any adverse effect must have lasted 12 months, be likely to last for 12 months or to recur in future.
In this case, the fact Mr. Sullivan’s mental impairment had previously resulted in a SAE that only lasted for a short time, gave Bury Street the ability to argue that any future recurrence is also likely to be short term and therefore not meet the definition of a disability in the EQA 2010.
Finally, when it comes to knowledge of disability, the case makes clear that employers can rely on evidence from colleagues who have worked closely with relevant individuals. Depending on their evidence, it may be the employer can argue that it had no knowledge of disability.
