A recent case has highlighted the importance of the criteria that will be taken into account to determine whether a condition meets the definition of a 'disability' for equality law purposes.

A Discriminatory Dismissal?

In the recent case of Sullivan v Bury Street Capital Ltd [2020], Sullivan worked as a senior sales executive for the employer. The employee developed paranoid delusions in May 2013, which caused him to believe he was being followed by a gang of Russians. The delusions affected his work, in particular his attendance and timekeeping. Things improved after September 2013 until April 2017 when the paranoid delusions became worse again, to the extent they impacted on his day-to-day activities. 

The employee was dismissed from his role in September 2017, with the employer citing his poor timekeeping, absences and lack of record-keeping to justify the dismissal. The employee claimed his dismissal was discriminatory on the grounds of disability. 

What is the Definition of Disability?

The legal definition of 'disability' is found in the Equality Act 2010, which states a person will be disabled in law if they have:

  • a physical or mental impairment;
  • which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities (which can include work)

An impairment will have a long-term effect only if:

  • it has lasted for at least 12 months
  • it is likely to last for 12 months, or
  • it is likely to last for the rest of the person's life.

What Was the Tribunal Decision?

The Tribunal held the employee was not suffering from a disability within the meaning of the Equality Act. Whilst the employee suffered, both in 2013 and in 2017, from a mental impairment with a substantial adverse effect on his ability to carry out normal day-to-day activities, the Tribunal found that the adverse effect was not likely to last for 12 months, or otherwise likely to recur. 

The employee appealed to the Employment Appeals Tribunal (EAT).

The EAT Decision

The EAT accepted the employee's delusional beliefs persisted throughout the period between May 2013 and his dismissal in 2017. However, the EAT did not agree that the delusional beliefs had a substantial adverse effect for the entirety of that time. The employee managed long periods where he was able to ignore the delusions and perform well at work. He also reported to his doctor in 2014 that his sleep had improved and his anxiety had lessened. 

The EAT also held it was irrelevant that the employee's condition did in fact recur in 2017. What matters is that in 2013, when the condition first occurred, it was not considered likely to occur again. In the employee's case, each of the two episodes could be linked to a clear trigger, and the Tribunal was entitled to conclude on each occasion that the employee's condition was likely to improve once the trigger was resolved.

Best Practice

The outcome of this case is based on the particular circumstances of the employee and the illness he suffered from. More generally, it serves as a reminder of how careful employers need to be when dismissing for disability related issues. 

Where an employee appears to be struggling with issues such as timekeeping and attendance, it is sensible to explore whether there is anything happening in their life which might be affecting their work. Any such conversations should take place in an open and supportive environment. Where a mental health issue is identified, expert medical advice should be sought to understand more about the issue and what possible adjustments might assist the employee in carrying out their work. 

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.