Valerie Bond
Posted on 15 Sep 2020

Disability Discrimination: Sullivan v Bury Street Capital Ltd [2020]

In the case of Sullivan v Bury Street Capital Ltd [2020] the Employment Appeal Tribunal (EAT) considered whether an employee suffering from paranoid delusions had a disability for the purposes of the Equality Act 2010. It established that he did not, as the delusions were not anticipated to have an impact on the employee long term.

Disability under the Equality Act 2010

Section 6 of the Equality Act 2010 (EqA) defines disability. It states that a person has a disability if:

  1. They have a physical or mental impairment; and
  2. The impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.

"Physical or mental impairment"

There is no definition of "physical or mental impairment" in the EqA. However, the EqA guidance provides that there is no need for a medical diagnosis. The Employment Appeal Tribunal (EAT) has found that the Tribunal should focus on the effect of the impairment, not its cause. It is also possible for an individual to have a physical impairment, without there being an identifiable cause.

According to the Employment and Human Rights Commission Code, mental impairment should cover "a wide range of impairments relating to mental functioning, including what are often known as learning disabilities". As with physical impairment, focus should be placed on the effect of the impairment on an employee's day-to-day activities.

Adverse effect on ability to carry out day-to-day activities

The EqA guidance states "day-to-day activities are things that people do on a regular or daily basis". This does not, however, include "activities which are normal for a particular person or small group of people", for example playing a musical instrument or a particular sport to a certain level.

However, Tribunals are entitled to take into account the effect on circumstances which only occur at work. The European Court of Justice has clarified that disability can include "impairments which hinder the participation of the person concerned in professional life".

Substantial adverse effects

"Substantial" means "more than minor or trivial". The main focus will the on the effects of the impairment on the individual employee. The EAT has clarified that " what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired."

The effects will be deemed substantial if:

  1. The effects are recurring;
  2. The condition is progressive
  3. Treatment is improving the effect of the impairment.

Long-term

An impairment will have a long-term effect if:

  1. It has lasted at least 12 months;
  2. The period for which it lasts is likely to be 12 months; or
  3. It is likely to last for the rest of the life of the person affected.

Exceptions

Disability discrimination may be lawful in certain, very specific circumstances, including:

  1. Genuine occupational requirements
    1. Such as requiring a pilot not to have a sight impairment
  2. Positive action
    1. Where employers work to actively address certain issues which may affect an underrepresented pool of employees.
  3. Specific risk-based scenarios
    1. This can include situations of national security or statutory authority.

How should employers deal with potential disabilities?

It is important to be aware that if the impairment, whether mental or physical, has a long-term substantial effect on the employee's ability to carry out day to day activities, as defined above, the Tribunal is likely to view that the employee has a disability. It is therefore essential that employers consistently monitor employees and discuss any concerns regarding potential disabilities and whether there are any reasonable adjustments that can be made.

If an employee or ex-employee brings a claim in which they are claiming disability discrimination, they will have the burden of demonstrating that they have a disability.

Sullivan v Bury Street Capital Ltd [2020]

The Facts

The Claimant was employed as a senior sales executive by the Respondent from 2008. Since the start of his employment, there was some tension between the Claimant and the chief executive due to the Claimant's relaxed manner to matters such as timekeeping and attendance.

In May 2013, the Claimant developed paranoia, and became convinced that he was being monitored and followed by a gang of Russians connected with an ex-girlfriend. The chief executive became aware of this belief around July 2013. In September 2013, the Claimant and chief executive went on a business trip together and the chief executive noted that the Claimant's condition appeared to be improving.

Between July 2014 and September 2017 the chief executive held regular reviews with the Claimant and discussed his timekeeping and general attitude to work. However, the issues around the Claimant's paranoia and delusions were never mentioned.

The Claimant was dismissed in September 2017 due to issues including poor timekeeping, unauthorised absences and lack of record-keeping, and he brought a claim of disability discrimination in response.

Held

The Employment Tribunal ('ET') considered whether the Claimant had a disability (as defined above).  It found that the paranoia was not long-term as it had not lasted beyond September 2013. Although the Claimant still maintained his delusional belief of the existence of the Russian gang, it no longer had the relevant effects on his ability to carry out normal day-to-day activities.

Furthermore, the ET went on to find that the Respondent did not have actual or constructive knowledge of the disability at the relevant time. This was based on the chief executive's observations only.

The Claimant appealed, and the EAT upheld the ET's judgement as it had lawfully drawn the distinction between the Claimant's delusional beliefs and the impact of these on his ability to carry out day-to-day tasks. The EAT also rejected the Claimant's argument that his condition was likely to recur.

What this means for Employers

It is important that employers are fully aware of the law surrounding disability in order for them to limit the risks of subsequent discrimination in the workplace. Having regular communications with employees will help establish if a disability does arise and will ensure that the employer has the opportunity to take action, such as making reasonable adjustments, to prevent any discrimination.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Valerie Bond to discuss any issues you are facing.