Mr Sullivan had worked as a senior sales executive for Bury Street Capital since 2009. Following the breakdown of a relationship in 2013, he began suffering paranoid delusions that he was being stalked by a Russian gang connected to his former partner. In May 2013, Mr Sullivan’s condition caused difficulties with sleep and social interactions and affected his timekeeping, attendance and record-keeping at work. However, his employer had harboured concerns about these aspects of his performance since before 2013.
Mr Sullivan’s condition improved somewhat after September 2013, but between July 2014 and September 2017 his performance reviews constantly mentioned his timekeeping and attitude to work. In April 2017, Mr Sullivan’s condition deteriorated. On 7 September 2017 he attended a GP appointment and was signed off work on sick leave. On 8 September 2017, Mr Sullivan was dismissed on the basis of his capability, including poor timekeeping, lack of communication, unauthorised absences and poor record-keeping.
Mr Sullivan brought various claims including disability discrimination and unfair dismissal. An employment tribunal upheld his claim for unfair dismissal but rejected his disability discrimination claims. The key issue was whether the impact of Mr Sullivan’s delusional disorder was such that at any material time it amounted to a disability under the Equality Act 2010.
Although Mr Sullivan’s delusions had occurred over many years, the tribunal found that they had only had a substantial adverse effect on Mr Sullivan’s ability to carry out normal day-to-day activities during two discrete periods, each lasting a matter of months. The substantial adverse effect was therefore not ‘long term’. The Court of Appeal decided that the tribunal had been entitled to reach this conclusion and also upheld their finding that the substantial adverse effect had not been ‘likely to recur’. The question of likely recurrence must be assessed with the information available at the relevant time. The fact that the effect did subsequently recur was irrelevant, and the later delusions were themselves triggered by a specific event which was unlikely to continue.
Key Action Points for Human Resources and In-house Counsel
This case shows the hurdles for claimants to overcome in establishing that they are disabled and how fact sensitive these cases are. While in many cases, the fact that a substantial adverse effect of a condition has recurred might strongly suggest that a further episode is something that could well happen, this will not always be the case.