Stephen Sullivan v Bury Street Capital Limited

The Court of Appeal dismissed the appellant's challenge to the Employment Tribunal's findings that he was not disabled for the purposes of section 6 of the Equality Act 2010 and that his employer lacked actual or constructive knowledge of any disability. The court held that the ET had correctly applied the legal test for "likely" by reference to SCA Packaging v Boyle and had addressed the four component questions (impairment; adverse effects; substantial effect; long-term or likely to recur). The ET found two discrete episodes (2013 and 2017) of substantial adverse effect but concluded, on the evidence, that neither episode was likely to last 12 months nor that the substantial effects were likely to recur, and thus the appellant was not disabled under section 6 and Sch. 1 para. 2 of the 2010 Act. The court further held that the ET had given adequate reasons for concluding that the employer did not have actual or constructive knowledge of a qualifying disability.

The claimant, employed by a small capital-raising firm, developed fixed persecutory delusions from 2013 onwards that he was being monitored by a gang connected to a former relationship. The delusions caused episodes of impaired sleep, reduced social interaction, attendance and record-keeping problems. The Employment Tribunal (hearing Nov 2018, reasons May 2019) accepted there were substantial adverse effects in mid-2013 and again in 2017 but concluded neither episode was long-term nor likely to recur so as to satisfy the statutory definition of disability in section 6 of the Equality Act 2010 and Sch. 1 para. 2. The ET therefore dismissed the discrimination and reasonable-adjustments claims, although it found unfair dismissal on procedural grounds.

Procedure and path: the ET judgment was the first instance decision; the appellant obtained permission from Choudhury J to appeal to the Employment Appeal Tribunal, which dismissed the appeal on 9 September 2020; permission to appeal to the Court of Appeal was granted and the present appeal was heard in October 2021 with judgment handed down on 16 November 2021.

Issues framed by the court:

• Whether the claimant had a "disability" within section 6 of the Equality Act 2010 (mental impairment with substantial and long-term adverse effects on normal day-to-day activities).
• Whether the ET erred in treating the 2013 and 2017 episodes as not meeting the long-term/likely-to-recur requirements in Sch. 1 para. 2.
• Whether the employer had actual or constructive knowledge of any qualifying disability under section 15(2) (relevant to discrimination arising from disability and reasonable-adjustments duties).

Court's reasoning in brief: the Court of Appeal treated the appeal as a challenge to the ET's findings of fact and lawfully applied standards of appellate review. It emphasised that the ET had correctly identified and applied the legal tests (including the meaning of "likely" from SCA Packaging v Boyle), had considered the medical and lay evidence (including the jointly instructed psychiatrist), and had given adequate reasons for its factual conclusions. The court rejected submissions that the ET omitted relevant guidance or misapplied authority, noting that many arguments amounted to disagreement with factual assessments rather than an error of law. Because the ET's reasoning was adequate and the findings were not perverse, the appeal was dismissed.

Appeal dismissed. The Court concluded the Employment Tribunal had applied the correct legal tests (including the meaning of "likely"), had considered the relevant evidence (medical and lay), and had given adequate reasons for finding discrete episodes of substantial adverse effect in 2013 and 2017 but that neither episode was likely to last 12 months nor likely to recur. On that factual basis the appellant did not meet the statutory definition of disability and the employer did not have actual or constructive knowledge of a qualifying disability.

Employment Tribunal (hearing Nov 2018; written reasons 14 May 2019) — ET dismissed claims under the Equality Act but found unfair dismissal. Choudhury J granted permission to appeal to the Employment Appeal Tribunal on 16 December 2019. EAT dismissed the appeal (judgment 9 September 2020) and granted permission to appeal to the Court of Appeal (order 6 October 2020). Court of Appeal heard the appeal 19 October 2021 and gave judgment 16 November 2021 ([2021] EWCA Civ 1694).