Stephen Sullivan v Bury Street Capital Limited

Whether an impairment has a substantial and long-term adverse effect is ordinarily a fact-sensitive assessment for the Employment Tribunal. A continuing delusional belief does not of itself establish that a substantial adverse effect on normal day-to-day activities also continued.

For the recurrence limb of Equality Act 2010, the likelihood of a further substantial adverse effect is assessed on the evidence at the time of the alleged discriminatory act. Earlier episodes may be relevant, but do not compel a finding of likely recurrence where the Tribunal finds that an episode was caused by a particular, non-recurring stressor.

An appellate court must read an Employment Tribunal’s reasons fairly and as a whole. Adequacy, rather than perfection, is required. It must not reopen sustainable findings of fact on an appeal limited to law.

The claimant was employed by the respondent capital-raising firm. He suffered persecutory delusions and alleged that their effects made him disabled under the Equality Act 2010. The Employment Tribunal found substantial adverse effects in limited periods in 2013 and 2017, but found that they had not continued throughout and were neither likely to last 12 months nor likely to recur. It therefore dismissed the disability-discrimination claims, while upholding his unfair-dismissal complaint on procedural grounds.

The Employment Appeal Tribunal dismissed his appeal in proceedings numbered UKEAT/0317/19/BA. The claimant appealed on the bases that the Tribunal had erred concerning continuing or recurring disability and the employer’s actual or constructive knowledge. The central issue was whether those conclusions disclosed an error of law rather than an impermissible challenge to factual findings.

1. Appeal dismissed. Singh LJ, with whom Peter Jackson LJ and Elisabeth Laing LJ agreed, held that the Employment Tribunal had adequately addressed the statutory questions and was entitled to make the factual findings it did.
2. A tribunal deciding disability must distinguish an impairment, including a continuing delusional belief, from its effect on the person’s ability to carry out normal day-to-day activities. The Tribunal was entitled to find substantial adverse effects during discrete periods in 2013 and 2017, while finding that they had not persisted between those periods.
3. The Tribunal correctly directed itself, consistently with Boyle, that “likely” means that an event could well happen, rather than that it is more probable than not. It was entitled to find that the 2017 effect was caused by the particular stress of remuneration discussions, which were unlikely to continue or recur. The effect was therefore not likely to continue for 12 months or recur within paragraph 2 of Schedule 1 to the Equality Act 2010.
4. The time-specific rule in McDougall and All Answers was confirmed. The likelihood of recurrence must be assessed on evidence available at the time of the alleged discriminatory act. Although a previous episode may strongly suggest likely recurrence in some cases, the legal question remains one of fact.
5. The appeal was, in substance, an attempt to challenge factual evaluations without advancing perversity. An appellate court must read Employment Tribunal reasons fairly and as a whole. It requires adequate reasons, not exhaustive reasoning or perfection. The Tribunal had considered the relevant evidence, including expert evidence, the claimant’s evidence and workplace observations.
6. The knowledge ground did not strictly arise once disability was not established. In any event, the Tribunal’s alternative conclusion that the employer lacked actual and constructive knowledge was adequately reasoned. The colleague’s observations were relevant evidence in a small business, and the Tribunal had expressly considered what the employer could reasonably have been expected to know.

• Court of Appeal (Civil Division): The appeal was dismissed in [2021] EWCA Civ 1694.
• Employment Appeal Tribunal: The appeal from the Employment Tribunal was dismissed in proceedings numbered UKEAT/0317/19/BA. The EAT granted permission to appeal to the Court of Appeal.
• Employment Tribunal: The claimant succeeded in his unfair-dismissal complaint because the dismissal procedure was unfair. His claims under the Equality Act 2010, including disability discrimination and reasonable adjustments, were dismissed.