Matthew Warren
Posted on 30 Nov 2021

Case update: Court of Appeal decision - Sullivan v Bury Street Capital Ltd

Background

Mr Sullivan commenced employment with Bury Street Capital LTD ("BSC") in 2008 as a Senior Sales Executive. Throughout the working relationship, BSC's Chief Executive raised various issues with Mr Sullivan, such as poor time management, attendance at work and lack of record keeping.  

In May 2013, Mr Sullivan began to suffer from paranoid delusions, a condition which affected his ability to perform at work. Mr Sullivan's attendance, and behaviour at work became prevalent and increasingly unpredictable. In September 2013, BSC saw a noticeable improvement in Mr Sullivan's condition, which was supported by medical opinion in early 2014. Throughout the remainder of his employment, Mr Sullivan attended regular review meetings, where his time keeping and attitude at work were questioned and listed as areas of improvement. During this time, it was neither expressly stated by Mr Sullivan, nor implied by his behaviour in the eyes of BSC, that the cause of these issues were paranoid delusions.

In August 2017, BSC became tired of Mr Sullivan's performance and behavioural issues and, in September 2017, dismissed him. BSC gave various reasons, including poor time keeping and unauthorised absences. Mr Sullivan brought numerous claims in the Employment Tribunal, including disability discrimination, based upon the belief that he was suffering from a disability (paranoid delusions) at the time of his dismissal.

What amounts to a disability under the Equality Act 2010?

To qualify as a disability in law, a mental impairment must "have a substantial, long-term adverse effect on the individual’s ability to carry out normal day-to-day activities".

The key question before the Employment Tribunal was whether any of the substantial, adverse effects Mr Sullivan's condition, on his ability to carry out day to day activities, were 'long term'?

What is 'long term'?

A long-term condition is something which has at least lasted 12 months or is likely to last for at least 12 months.

Therefore, the key questions before the Tribunal were as follows:

  • what impact did a period of recovery from any substantial adverse effect have on the 'long-term' provision? and
  • if the period of recovery meant the condition did not meet the 'long term' requirement, what was the likelihood of the substantial adverse effect reappearing?

Employment Tribunal's decision

The Tribunal accepted that the substantial adverse effect did arise between April and June 2017, during which the decision to dismiss was considered, but it was not likely to last for at least 12 months and, as such, Mr Sullivan's condition did not meet the definition of a disability under the Equality Act 2010. Given that the substantial effect lasted for 3 months, what was the likelihood that the substantial adverse effect would reappear?

The Tribunal decided the latter question in favour of BSC, with one of the key factors being the time it took for the adverse effect to reappear, with roughly four years between the two episodes. Moreover, the Tribunal made a finding of fact that the episode in 2017 was triggered by specific stressful events which, once resolved, would see the effects of the condition lessen.

This decision was appealed by Mr Sullivan, initially to the Employment Appeal Tribunal, without success, and then to the Court of Appeal. The latest appeal was dismissed, on the basis that the Tribunal had asked itself the correct, substantive questions and that their decision and rational behind it, were reasonable and a logical conclusion on the facts to hand.

Key take away for employers

When an employee is suffering from ill-health, it is always important to consider the effect it has on their ability to carry out day to day activities. However, it is equally important to establish the timeframe from which they have been suffering such adverse effects. Employers will need to take a holistic approach, by considering any previous ill-health of the individual, alongside how likely it is that the adverse effects may reappear in the future. An employer will most likely find an occupational health report, or medical expert report, useful when assessing these factors.