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The Employment Appeal Tribunal (EAT) has held in Sullivan v Bury Street Capital Ltd that an employee who suffered from paranoid delusions that affected his timekeeping and attendance did not have a disability.

The claimant was employed as a senior sales executive who, from the outset of his employment, had a relaxed attitude towards timekeeping.  Following a short relationship with a Ukrainian woman, he became convinced in May 2013 that he was being monitored and followed by a gang of Russians connected with the woman.  The Chief Executive of the company (D) became aware of this belief and noted that the claimant was "in a bad place psychologically and physically".  The claimant experienced difficulty sleeping and his attendance and behaviour at work became rather erratic.  D invited the claimant to join him on a business trip to New York during which the claimant informed him that his condition was improving.  In early 2014 the claimant saw a doctor and psychologist, both of whom noted improvements in the claimant's presentation and working relationships.

Between July 2014 and September 2017, D conducted regular reviews with the claimant in which his timekeeping and attitude at work were frequently raised.  There was no reference to the Russian gang problem, and a new employee (I) who joined in September 2014 knew nothing about the claimant's paranoia.  By August 2017 D had had enough of the issues surrounding the claimant's poor timekeeping and behaviour and he was dismissed in September due to poor timekeeping, lack of communication, unauthorised absences and lack of record-keeping.  Amongst other things the claimant brought a claim for disability discrimination.

Although the tribunal held that the claimant's paranoid delusions did give rise to a substantial adverse effect on his ability to carry out normal day-to-day activities, his condition did not qualify as a disability as these delusions (which he started suffering from in May 2013) did not last beyond September 2013.  Although the claimant maintained that his delusional belief in the existence of the Russian gang extended beyond this point, it no longer affected his ability to carry out normal day-to-day activities.  The EAT agreed, stating that the tribunal had been entitled to rely on the evidence of the claimant's colleagues to conclude that the effect on him of his condition was not substantially adverse from September 2013 onwards (there was a recurrence from April 2017 when the claimant was under stress due discussions about his remuneration, though the tribunal concluded that the position would improve once the discussions had terminated).

Take note:  The decision in Sullivan shows that it is key, once a substantial adverse effect has been established, to show that it continues to impact on the individual's ability to carry out normal day-to-day activities for 12 months or more.  The EAT also considered whether, had a disability been established, the employer had knowledge of it.  It held that the tribunal had been right to consider the claimant's colleague, I's, lack of knowledge about the claimant's paranoia.  The knowledge of an employee may be relevant in determining whether the employer has the requisite knowledge of disability, especially where the employee works in close proximity with the claimant, and, as was the case here, the employer is small with no more than five or six individuals employed at any given time.