Sullivan v Bury Street Capital Ltd (DISABILITY DISCRIMINATION)

An impairment may persist while its substantial adverse effect on normal day-to-day activities does not. Whether that effect is substantial remains a question for the tribunal, assessed from all the evidence; medical opinion assists but does not determine it.

For the long-term requirement under Equality Act 2010, an effect is “likely” to recur if it could well recur, assessed at the time of the alleged contravention. A later recurrence does not retrospectively establish that likelihood. An employer’s knowledge of an impairment alone is insufficient: it must know, or reasonably be expected to know, that its effects are substantial and long-term.

The claimant, a senior sales executive, held persistent delusional beliefs that he was being followed. The Employment Tribunal found substantial adverse effects in 2013 and again in 2017, but found no such effect for more than three and a half years between those episodes. It held that neither episode was likely to last for 12 months or recur, and that the claimant was therefore not disabled under section 6 of the Equality Act 2010.

The Tribunal dismissed the disability discrimination claims, while upholding unfair dismissal. The claimant appealed, contending that the substantial adverse effect persisted or was likely to recur, that treatment had not been properly considered, and that the employer had actual or constructive knowledge of disability.

1. Appeal dismissed. The Tribunal was entitled to find that the claimant did not satisfy the statutory definition of disability. It correctly distinguished the continued existence of the claimant’s delusional beliefs from their effect on his ability to carry out normal day-to-day activities. An impairment may fluctuate in its effects. The question whether the effect is substantial is for the Tribunal, assessed on all the evidence, rather than for a medical expert.

2. The Tribunal gave adequate reasons for finding no substantial adverse effect between September 2013 and April 2017. It permissibly relied on the claimant’s concessions, the direct observations of colleagues, the pre-existing history of timekeeping and record-keeping difficulties, and contemporaneous clinical notes showing improvement. It was not required to address individually every asserted effect or every part of the expert evidence.

3. The Tribunal correctly applied the long-term provisions in section 6 and Schedule 1 of the Equality Act 2010. “Likely” means that an event could well happen, not that it is probable. The likelihood of recurrence is assessed from the circumstances at the time of the alleged contravention. The fact that the substantial adverse effect recurred in 2017 did not establish that recurrence could well have been predicted in 2013. The Tribunal could find that the episodes were linked to temporary circumstances and were not likely to recur or last 12 months.

4. The alleged therapeutic treatment did not alter that result. On the Tribunal’s findings, any treatment began after the earlier substantial adverse effect had ended and did not establish a deduced substantial adverse effect during the intervening period.

5. Although unnecessary to the disposition, the Tribunal’s alternative finding on knowledge disclosed no error. The employer’s awareness of paranoia or mental impairment did not, on the evidence, establish actual or constructive knowledge that any adverse effect was both substantial and long-term. In the circumstances, further sensitive inquiries were not reasonably required.

• Employment Appeal Tribunal: appeal dismissed: [2020] UKEAT 0317_19_0909.
• Employment Tribunal: held that the claimant was not disabled within section 6 of the Equality Act 2010; dismissed the disability discrimination claims; upheld unfair dismissal. Citation not stated in the judgment.