In Sullivan v Bury Street Capital Limited [2020] UKEAT/0317/19/BA, the Employment Tribunal has accepted that a Claimant had paranoid delusions for a certain period, but found that those delusions were not expected to have a substantial and long term adverse effect for the same period.
Mr Sullivan was employed as a Senior Sales Executive at Bury Street Capital Limited (‘BSC’) from 2008 until he was dismissed in 2017.
In 2013, Sullivan began to suffer paranoid delusions that he was being stalked by a Russian gang following a split with his Ukrainian girlfriend. At that time, his behaviour at work became erratic. He had difficulty sleeping and his attendance was affected. His employer became aware of his beliefs in July 2013 and gave evidence at the Tribunal hearing that it considered that he was suffering with “extreme paranoia”.
Prior to this date, his employer did not like his relaxed attitude to observing office hours, his reluctance to record his activities and/or his use of misleading information in his electronic calendar.
Sullivan wished to make it difficult to be followed since he was convinced that his use of telephones, emails and the internet were being monitored, extending to his employer’s systems.
Sullivan attended a business trip and meetings with a colleague. He performed well and told his employer that his condition was improving.
Numerous reviews raised the issue of his timekeeping and attitude at work which led his employer to consider terminating his employment. Following a review meeting when the remuneration structure was discussed, Sullivan was signed off work sick. The Tribunal found that this resulted in the decision to terminate his employment, although the reasons given were his attitude and lack of skillset for the job.
To enable his claim to proceed, the Tribunal had to consider whether Sullivan had an impairment which had a substantial and long-term adverse effect on his ability to carry out normal activities. It concluded that he had the impairment (paranoia, paranoid delusions, stress, anxiety and depression) throughout August 2013 to 8 September 2017, when his employment was terminated with notice. It also considered whether the substantial adverse effects of Sullivan’s impairment were long-term.
Sullivan gave evidence on his ability to carry out normal day to day activities. The medical evidence of Dr Wise stated that, in his opinion, there was an impairment which persisted for that period and the substantial adverse effects were present throughout that period.
The Tribunal considered that there was a substantial adverse effect on Sullivan’s sleep and his social interaction from May 2013, which were known to his employer and it linked this to his erratic behaviour. However, the substantial adverse effect did not continue beyond September 2013 and his poor timekeeping and record-keeping were not an effect of the impairment throughout.
The Tribunal relied on a colleague’s evidence that he knew nothing of Sullivan’s paranoia and had not noticed any significant change in his behaviour or appearance. Also, the employer would not have invited him on the business trip and to take part in meetings if the substantial adverse effect was present. Sullivan also admitted during evidence that he showered every morning and therefore the Tribunal did not believe that his personal hygiene suffered.
The Tribunal found that the substantial adverse effect in 2013 lasted 4-5 months and 5 months in 2017. Collectively, they did not last 12 months, and it was not likely that they would continue for 12 months or recur. The particular stress was due to the discussions regarding his remuneration which would not continue indefinitely. He was not therefore disabled.
The Tribunal concluded that, had he been disabled, it would have found that the employer did not know nor could it reasonably be expected to know that Sullivan was disabled. He could proceed with his claim that he had been subjected to disability discrimination. However, his unfair dismissal claim succeeded.
Sullivan unsuccessfully appealed to the Employment Appeal Tribunal (EAT). He argued (among other things) that the Tribunal accepted that he had delusional beliefs throughout the period so should have held that the substantial adverse effects persisted for that period. He said that the substantial adverse effect had recurred in 2017 and so the argument in 2013 that it was not likely to recur was unsustainable. He believed that the Tribunal had failed to consider what the position would be if he didn’t have treatment and therapeutic exercises.
Sullivan argued that the Tribunal was wrong to conclude that his employer did not have knowledge of his disability. He relied on the references to ‘paranoia’ and ‘mental health’ in communications during the relevant period and the fact that his employer failed to enquire about his health.
He criticised the Tribunal for not referring to his psychologist’s report in February 2018 which said that an underlying mental impairment persisted between September 2014 and April 2017, and his impairment was likely to last at least a further six months without treatment.
The employer argued that whilst the Tribunal had accepted that the delusional beliefs persisted throughout, it was not bound to find that there was a substantial adverse effect throughout.
The EAT held that it is irrelevant, for the purposes of determining whether there was a disability in 2013, that the adverse effect did actually recur in 2017. The question is to be determined based on the evidence available at the time. The Tribunal had correctly interpreted ‘likely ‘ as ‘could well happen’, which is a low threshold. However, the Tribunal concluded that the discussions about remuneration were the triggering event and his condition was likely to improve once the discussions were exhausted.
The EAT concluded that there was no need to consider substantial adverse effects absent treatment as the treatment only lasted a few months to September 2014.
The EAT considered whether the employer had knowledge. The evidence suggested that the employer had information to suggest that he was suffering substantial adverse effects during the period between July and September 2013. This was contrary to what Sullivan had told his colleague, which was that his condition was improving. The EAT concluded that there was no knowledge that the substantial adverse effect was long-term. The employer had no knowledge that Sullivan’s security concerns were impacting his behaviour, which had preceded his paranoid delusions.
Sullivan had referred to having ‘a mental problem’ and ‘paranoia’ in communications during the relevant period but that was not enough to impart knowledge on the employer. The EAT found that the Tribunal was entitled to find that the employer did not have knowledge and could not reasonably be expected to have had knowledge that Sullivan had a mental impairment that had a substantial adverse effect on his ability to carry out normal day to day activities and which was long-term.
This case does not establish a new legal point but it is a useful reminder of the steps that a Claimant has to take and the evidence that will prove helpful to establish that they meet the definition of disability under the Equality Act 2010. It also demonstrates the circumstances in which an employer may be found not to know that an employee is disabled. However, it will be a risky approach to take by employers if it chooses deliberately to not make enquiries as to an employee’s health to avoid liability.
If you wish to discuss any of the issues in this case, please do not hesitate to contact Emily Yeardley.
Please note that this information is for guidance only and should not be regarded as a substitute for taking full legal advice on specific facts and circumstances.
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