Disability status and knowledge: Court of Appeal rejects employee’s appeal in Russian gang case

Background

In the case of Sullivan v Bury Street Capital Ltd, Mr Sullivan was employed by the Respondent business from 2009 until his dismissal in 2017. Mr Sullivan had a personal relationship with a Ukranian woman between March and May 2013 and after that relationship ended suffered from paranoid delusions as a result of a potential persistent delusional disorder. He made significant alterations to his lifestyle as a result, believing he was been followed in the real and digital world by a Russian gang.

His dismissal was the day after a GP appointment advised a further period of 4 week’s absence, ostensibly on the grounds of his attitude and lack of skills.

Mr Sullivan brought various claims, including unfair dismissal, indirect discrimination and section 15 discrimination arising from disability.

ET and EAT decision

The Claimant did have an impairment but the substantial adverse effect on day to day activities (SAE) was confined to two distinct periods, being May to September 2013 and April to July 2017. That was the case despite the ET finding that the delusional belief continued throughout this period.

The ET also found that neither in 2013 nor 2017 was the SAE likely to recur.

Mr Sullivan’s unfair dismissal claim succeeded but he was found not to be disabled and the employer was found not to have actual or constructive knowledge of the Claimant’s disability even if he had been found to be disabled. That finding would have provided a defence to the claims of section 15 discrimination arising from disability and failure to make reasonable adjustments if disability status had been established.

Key findings in reaching that conclusion were:

• Close work colleagues had not observed the Claimant to be particularly effected at the relevant times.
• The concessions of the Claimant during cross-examination.
• The evidence of a medical expert.

Court of Appeal (CA) decision

Mr Sullivan appealed to the CA on the following 3 grounds:

1. There was a SAE from 2013 to 2017 (“Ground 1”).
2. Alternatively, he had a recurring condition (“Ground 2”).
3. The Respondent should have been fixed with actual or constructive knowledge of disability (“Ground 3”).

The CA re-iterated that the correct questions for the ET were: (1) was there an impairment, (2) what were its adverse effects, (3) were they more than minor or trivial, (4) was there a real possibility they would continue for more than 12 months or that they would recur and (5) what did the employer actually know, what steps could it reasonably have taken to find out more and what would they have reasonably concluded by taking those steps?

The CA found that the decisions reached by the ET were open to it on the facts and rejected all grounds of appeal.

Key points in disability status and knowledge cases

• Is there a trigger unrelated to the impairment? The SAE in 2017 was triggered by a discussion around remuneration and that triggering event was not likely to recur. That meant, judged at 2013 and again in 2017, the SAE was not thought likely to last 12 months or to recur and it was by no means decisive that a SAE had in fact recurred. Therefore the “long-term” part of the disability status test had not been met.
• The recurrence of the SAE in 2017 has no bearing on the existence or otherwise of a disability in 2013 which must be assessed on the facts known at the time.
• The focus is on the presence or otherwise of the SAE so an ongoing impairment (such as Mr Sullivan’s paranoid delusions) is again not decisive.
• Each case turns on its own specific facts and in many instances, an actual recurrence of a SAE will lead to a finding that a further recurrence “could well happen”.
• The Government Guidance on illustrative and non-exhaustive list of factors which it would be reasonable to regard as having a SAE includes reference to “delusions” but remains guidance and does not impose any legal obligations and is not an authoritative statement of the law. In any event, the ET had not been referred to this part of the Guidance.
• Employers should carefully consider the issue of actual or constructive knowledge of any disability (Ground 3) as it is a complex one and will involve consideration of a wide range of factors, including:
  • Actual or constructive knowledge of the disability itself is all that is required; not knowing the link between the disability and its consequent effects which led to unfavourable treatment is not relevant to a lack of knowledge defence.
  • An employer can still be held to have knowledge of disability without constructive knowledge of the diagnosis.
  • Ultimately the question of knowledge is one of reasonableness and one of fact and evaluation. It will be difficult for appellate courts to interfere with the findings of an Employment Tribunal where adequate reasons for the ET’s findings of fact are given.
  • A reaction to life events can fall short of the definition of disability and not knowing the cause of an impairment makes it harder for an employer to assess whether it has or will last 12 months.
  • Bear in mind however that the EHRC Code sets out that “Employers should consider whether a worker has a disability even where one has not been formally disclosed….An employer must to all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making inquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.”