Employment Law Cases

Sullivan v Bury Street Capital Ltd

An employee who suffered paranoid delusions was not disabled because although these had a substantial adverse effect, they were not long term or likely to recur.

Background

Mr Sullivan worked as a sales executive with a small finance company (BSC). Following a relationship with a Ukrainian woman he began suffering paranoid delusions that a group of Russian gangsters were out to get him. These delusions began around May 2013 and the CEO of BSC became aware of them a few months later. They caused Mr Sullivan to have difficulty sleeping and affected his attendance and behaviour at work which became erratic (but which had been a concern before on the onset of his delusions). Matters improved after September 2013 and in early 2104 Mr Sullivan saw a doctor and psychologist both of whom, while acknowledging the delusions, noted an overall improvement. A new employee who joined BSC in September 2014 and sat near Mr Sullivan knew nothing of his delusions and had noticed no change in his behaviour during this time. Between July 2014 and September 2017 Mr Sullivan’s performance reviews constantly mentioned his timekeeping and attitude to work. In September 2017 he was dismissed.

The tribunal hearing Mr Sullivan’s disability discrimination claim held that he wasn’t disabled within the meaning of the Equality Act. It accepted that he had a mental impairment because of the delusions but held that any substantial adverse effect (SAE) lasted only from around May 2013 to September 2013, and then recommenced a few months before his dismissal - but there was no SAE during the intervening period. Moreover, the SAE in both periods was unlikely to last at least 12 months or recur at either point (even though it had). In addition, the tribunal held that even if it was wrong on this point, it would have found that BSC did not have actual or constructive knowledge of his disability at the relevant time. Mr Sullivan appealed, focusing on two aspects of the tribunal’s decision: that the SAE didn’t last throughout the time and that it wasn’t likely to recur.

EAT decision

The appeal was dismissed.

As regards the persistence of the SAE, the EAT held that the tribunal had permissibly drawn a distinction between Mr Sullivan’s beliefs and the effect they had on his ability to carry out normal day-to-day activities. Despite the evidence of the doctor and psychologist, the tribunal was entitled to rely on the evidence of Mr Sullivan’s colleagues (and on some concessions made by Mr Sullivan himself) to conclude that the effect on him of his condition was not substantially adverse between September 2013 and April 2017.

As to the recurrence point, Mr Sullivan argued that the tribunal was wrong not to hold that the SAE which was established in 2013 was ‘likely to recur’, given that it did recur in 2017. Case law establishes that ‘likely’ means ‘could well happen’, a low bar. Not so held the EAT. The tribunal had to assess matters based on conditions prevailing at the time, i.e. based on information available in 2013. Although ‘likely’ is a low threshold, this does not mean that where a SAE has in fact recurred, a tribunal is precluded from holding that, as at an earlier date, it was not likely to do so.

Having rejected Mr Sullivan’s appeal on the above two grounds, the EAT went on to consider the knowledge aspect of the tribunal’s decision (although it wasn’t required actually to do so). The tribunal had relied heavily on the evidence of Mr Sullivan’s colleague that he knew nothing about his delusions. This was wrong argued Mr Sullivan – the tribunal should instead have focused on corporate knowledge, especially as the CEO and Mr Sullivan’s colleague were aware not only of the earlier SAE but demonstrated continued awareness of the existence of Mr Sullivan’s delusions.

The EAT however saw nothing wrong with the tribunal’s reliance on the evidence of Mr Sullivan’s colleague. An individual’s knowledge in his capacity as an employee/agent of a company may be relevant in determining if the company has the requisite knowledge – and that is particularly so where the company is small (as BSC is). To rely on such knowledge was not unduly restrictive or unreasonable.

Mr Sullivan appealed unsuccessfully to the Court of Appeal which held that the appeal did not raise any points of general principle but was rather a decision on its own facts.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0317_19_0909.html

Comment

This case demonstrates the hurdles that a claimant has to overcome in establishing ‘disability’ within the meaning of the Equality Act and the importance of his or her credibility, or lack of, as a witness.

Firstly, the tribunal rejected Mr Sullivan’s evidence and that of his medical advisers and preferred the evidence of his colleagues in finding his condition did not have a substantial adverse effect on his ability to carry out normal day-to-day requirements. The tribunal did not think that he was a credible witness and found that he was ‘exaggerating’ his symptoms.

Secondly, in considering whether Mr Sullivan’s condition was likely to ‘recur’ for the purposes of determining whether the ‘long term’ requirements of s 6 of the Act were satisfied, the tribunal were required to make its assessment on the basis of his condition prevailing at the time, i.e. in 2013 when it was alleged he was disabled and not in 2017, when in fact his condition did recur.