An employee who suffered from paranoid delusions was not protected against disability discrimination because the adverse effect of the delusions on his day-to-day activities was not likely to last for 12 months.
The Facts
Mr Sullivan was employed by Bury Street Capital Limited, a small finance company. From July 2013, following the breakdown of a relationship, Mr Sullivan suffered paranoid delusions that he was being followed and stalked by a Russian gang. These delusions made it difficult for him to sleep and affected his timekeeping, attendance and record keeping (which were already a matter of concern for his manager, Mr Drake). In September 2013, things improved. Mr Sullivan still believed that he was being followed by the Russian gang, but he managed to ignore this and to concentrate on work.
By September 2017, Mr Drake had become increasingly irritated with Mr Sullivan’s timekeeping and behaviour and dismissed him. Mr Drake claimed in the employment tribunal that (among other things) he had suffered disability discrimination.
The employment tribunal found that Mr Sullivan’s condition was not protected as a disability because the adverse effect that his condition had on his day-to-day activities was not long term. The paranoid delusions he had suffered in 2013 (and continued to suffer) did have a substantial adverse effect on his ability to carry out normal day-to-day activities, but this effect did not last beyond September 2013. The delusions again began to have a substantial adverse effect on his day to day activities in 2017, and they still had this effect when he was dismissed. However, given that the adverse effects he had suffered in 2013 had only lasted for a few months, it was not likely that the effect would be “long term” – which, under the disability discrimination legislation, means likely to last for at least 12 months or likely to recur. The tribunal also noted that Mr Sullivan was under particular stress in 2017 because of discussions about his remuneration. When these discussions had finished, the stressful period would come to an end, and the tribunal considered that his condition would then improve.
The tribunal also held that, even if Mr Sullivan’s condition did have a long term substantial adverse effect on his day to day activities, Bury Street Capital did not have actual or constructive knowledge of his disability at the time that he was dismissed.
Mr Sullivan appealed unsuccessfully to the EAT, which held that the tribunal had not made a mistake in deciding that Mr Sullivan’s condition did not meet the requirement for a substantial adverse effect to be long term. The tribunal was entitled to conclude, on the evidence, that, although there was a substantial adverse effect in 2013 and again in 2017, in neither case was it likely that the effect would last for 12 months or that it would recur (even though it had).
The tribunal had to assess matters based on the conditions prevailing at the time (i.e. based on information available in 2013). The fact that the substantial adverse effect had in fact recurred did not preclude the tribunal from concluding that , as at an earlier date, it was not likely to do so. The tribunal had also not made a mistake in deciding that Bury Street Capital did not know and could not reasonably be expected to know about Mr Sullivan’s disability.
What Does this Mean for Employers?
A condition will not be a disability unless the condition has a substantial adverse effect on the employee’s day to day activities which is likely to last at least 12 months, or to recur. This is the case even if the condition itself lasts for longer than this. This case offers an insight into how the tribunal is likely to approach the long term requirement. Employers should continue to act cautiously if they become aware that an employee may be suffering from a mental health issue or other potential disability.
