Disability – likelihood of recurrence


30 November 2021

The Court of Appeal has considered whether an employee who had suffered two episodes of paranoid delusions was disabled for the purposes of establishing a claim for disability discrimination under the Equality Act 2010.

Sullivan v Bury Street Capital Ltd [2021] EWCA Civ 1694

Facts

The claimant suffered paranoid delusions following the breakdown of a relationship in 2013. His condition caused difficulties with sleep and social interactions. It also affected his timekeeping, attendance and record-keeping at work. By October 2013 he seemed to have recovered. His condition recurred again in April 2017 and he was subsequently signed off on sick leave. His employment was later terminated on the grounds of capability in September 2017. The reasons relied on by his employer were the claimant’s poor timekeeping, lack of communication, unauthorised absences and lack of record-keeping.

The claimant brought claims in the employment tribunal for unfair dismissal, disability discrimination and unlawful deduction of wages. His claims for disability discrimination and unlawful deductions were dismissed by the tribunal. 

In relation to his disability discrimination claim, the tribunal accepted that his delusional beliefs had persisted for the period between 2013 and 2017, but the evidence did not support a finding that a substantial adverse effect on his ability to carry out normal day-to-day activities had also persisted. There had been a substantial adverse effect for around four or five months in 2013 and for three months in 2017. However, the tribunal held that it was not likely that the substantial adverse effect would continue for at least 12 months, or that it would recur, meaning that it was not a substantial and long-term adverse effect for the purposes of establishing the statutory definition of disability under the Equality Act 2010.

The claimant’s appeal to the Employment Appeal Tribunal was dismissed. He appealed to the Court of Appeal.

Court of Appeal decision

The Court has dismissed the appeal, upholding the decision of the employment tribunal that the claimant did not have a disability. The Court held that the tribunal had reached permissible conclusions and had given adequate reasons for its findings.

The Court agreed with the tribunal’s decision that the claimant’s condition was not likely to recur, meaning that it could not be deemed ‘long term’. It was irrelevant for the purposes of deciding whether the claimant had a disability in 2013 that the substantial adverse effect had in fact recurred in 2017. The fact that a condition has recurred episodically might be strongly suggestive that a further episode could well happen, but that will not necessarily always be the case. On the facts, the tribunal had found that the episode in 2017 had been triggered by stressful remuneration discussions between the claimant and his employer, and such a triggering event was unlikely to recur. There had been no error in the tribunal’s approach to the question of whether the claimant’s condition was likely to recur.

Consequences of this decision

The claimant had clearly suffered a substantial adverse effect on his ability to carry out normal day-to-day activities as a result of his condition, but it did not satisfy the statutory requirement of being long-term in order to be a disability under the Equality Act 2010. A recurring condition will often, but not necessarily, meet the definition of being ‘long term’ for these purposes.

This decision highlights the reluctance of the higher courts to interfere with a tribunal’s findings of fact. The claimant had disagreed with the tribunal’s conclusions and had sought to challenge its findings, but both the EAT and the Court of Appeal held that the tribunal had given adequate reasons for its findings of fact.

These articles are from the November 2021 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue,  please visit the newsletter section of our website. For further information please contact a member of Birketts' Employment Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at November 2021.

Author

Liz Stevens

Professional Support Lawyer

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