The Court of Appeal has held that an employee who had suffered from paranoid delusions was not disabled because the adverse effect on his ability to carry out normal activities was not likely to be long term.
The facts
Mr Sullivan was a senior sales executive at Bury Street Capital Limited. In 2013, he had a relationship with a Ukrainian woman. After the breakdown of the relationship, he became convinced that he was being stalked and monitored by a Russian gang connected to this woman. This had a profound impact on Mr Sullivan’s life; he changed the locks at his home, installed CCTV, went “off the grid” on his devices and frequently changed his email addresses. His sleep was disturbed, and he sometimes slept in a hotel. He withdrew socially. His attendance, timekeeping and record keeping at work were also affected. Bury Street had been concerned about these aspects of his performance before 2013. He had not, before 2013, suffered from psychiatric issues.
In September 2013, however, Mr Sullivan seemed to be re-invigorated, and he travelled with work and took part in important business decisions.
In April 2017 Mr Sullivan’s condition deteriorated. In September 2017, he was signed off on sick leave. This was triggered by stress about pay negotiations, which were close to resolution. The day after he was signed off, his employment was terminated on the basis of capability. Bury Street cited his poor time-keeping, lack of communication, unauthorised absences and poor record-keeping.
Mr Sullivan claimed that he had been unfairly dismissed and that he had suffered discrimination arising from disability, indirect disability discrimination, a failure to make reasonable adjustments and unlawful deductions from wages. The tribunal held that Mr Sullivan had been unfairly dismissed but that he was not disabled, and so could not bring the claims of disability discrimination. Mr Sullivan appealed the discrimination decision to the EAT, and his appeal was unsuccessful.
Key to the Court of Appeals’ decision that Mr Sullivan was not disabled was the question of whether the effects of the paranoid delusions were “long term” – that is, likely to last for at least a year or to recur. For a condition to amount to a disability, the effect of the disability on day to day activities must be long term, as well as substantial and adverse. Mr Sullivan did suffer substantial adverse effects from the paranoid delusions over two distinct periods of four to five months in 2013 and a further period of three to four months in 2017. While the paranoid delusions persisted between 2013 and his dismissal in 2017, the evidence did not show that there were substantial adverse effects caused by the delusions during the entirety of this time. There was no reason, given the specific trigger of pay negotiations, to believe that the effects of the delusions in 2017 were likely to be long term. The adverse effect of the paranoid delusions was not, therefore, “long term”. The tribunal was also entitled to find that the substantial adverse effect was not “likely to recur”. The fact it had reoccurred in 2017 was not fatal to Bury Street’s argument because the reoccurrence in 2017 arose from a specific trigger which was not itself likely to recur.
What does this mean for employers?
Whether or not a condition amounts to a disability will always depend on the specific facts. 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.
On the specific facts of this case, the evidence did not suggest that the adverse effect of the delusions was likely to be long term. However, in other cases, including where the condition is less episodic, recurring effects of a condition may point towards the likelihood that the condition is long term.
