Paranoid delusions found not to be a disability for the purposes of the Equality Act 2010
Particular adverse effects of delusions on the individual were not ‘long-term’.
Section 6 of the Equality Act 2010 (‘EqA’) sets out that a person has a disability if a physical or mental impairment has a ‘substantial long-term adverse effect’ on the person’s ability to carry out day-to-day activities. Whilst it is a relatively low-bar for an individual to show a condition had a ‘substantial’ and ‘adverse’ effect on day-to-day activities, they still need to show that the condition was, or was likely to be, ‘long-term’ in that it has lasted 12 months or more, or it is likely to do so (e.g. where the impairment will remain for the rest of that person’s life).
It is a defence to disability discrimination claims and to claims for a failure to make reasonable adjustments for an employer to show that they did not know or could not reasonably be expected to know of the disability.
A recent Employment Appeal Tribunal (EAT) case considered whether a tribunal was right to conclude that an employee who suffered delusions was not disabled for the purposes of EqA.
Mr Sullivan joined BSCL in 2008 and from the outset had a relaxed attitude to observing office hours and documenting activities. Although his employer repeatedly raised issues with his working hours and lack of recording activity, no formal action was taken against him.
In early 2013 Mr Sullivan had a short relationship with a Ukrainian woman, after which he began to believe he was being stalked by a group of Russians. Mr Sullivan believed this group had access to his devices and work calendar and as a result he refrained from using his phone and did not use his calendar so as to make it more difficult for his movements to be tracked.
At the time Mr Sullivan’s behaviour becoming erratic at work and amongst other things he lost sleep, his personal hygiene deteriorated and he withdrew from contacts and friends. His attendance at work was also affected. BSCL’s CEO became aware of Mr Sullivan’s beliefs in the Summer of 2013 and commented at the time that he was ‘in a bad place psychologically and physically’ and that he was ‘shaking and sweating’ and that his beliefs amounted to ‘extreme paranoia’.
However, Mr Sullivan’s condition appeared to ease in the Autumn of 2013 such that he was able to accompany the CEO on a business trip abroad. In early 2014 Mr Sullivan consulted with doctors and psychologists, who noted at the time that his condition was improving as he appeared well groomed, was engaging with friends and used the telephone, although he still reported that he believed he was being followed by Russians. Mr Sullivan did not express anything about his continued belief of being followed to his employer.
By August 2017 BSCL’s CEO was on the verge of dismissing Mr Sullivan for his attitude at work and approach to timekeeping. In September 2017, the CEO met Mr Sullivan for a review and to set out how his remuneration would be structured, but the next day Mr Sullivan emailed to say he was not well and then later reported that he had been told by a doctor to not go to work for the next four weeks. In response, the CEO invited Mr Sullivan to a meeting to discuss if they should part ways. Mr Sullivan did not attend, and the CEO emailed to give him three months’ notice of his dismissal, citing Mr Sullivan’s attitude toward timekeeping, lack of communication, unauthorised absences, and lack of record-keeping.
Mr Sullivan brought claims for unfair dismissal, discrimination arising from a disability, indirect disability and failure to make reasonable adjustments claims.
The tribunal determined that Mr Sullivan had a mental impairment which had a substantial adverse effect on his ability to carry out day to day activities of sleeping and social interaction as of May 2013. However, it was found that the substantial adverse effect ceased after a few months.
Although it accepted that Mr Sullivan’s delusion continued throughout the relevant time period, the tribunal found that this did not have a substantial adverse impact on his ability to carry out day-to-day activities between late 2013 and the summer of 2017.
In addition, whilst the tribunal accepted that another substantial adverse effect arose at the latest in July 2017, it found that it was not likely that this would continue for at least 12 months as the previous episode in 2013 had lasted approximately five months. The tribunal differentiated between the two episodes based on their surrounding circumstances and triggers, finding that Mr Sullivan’s episode in 2017 was linked to the stress of the review and remuneration proposals made by the CEO to Mr Sullivan, which was not going to continue indefinitely and the condition would likely ease once the matter was resolved.
Finally, the tribunal determined that even if it had found that Mr Sullivan had a long-term disability, BSCL did not have actual or constructive knowledge of it in 2017, and so it could not have discriminated against him or failed to make a reasonable adjustment.
Employment Appeal Tribunal
The EAT upheld the tribunal’s decision, noting that the tribunal was entitled to find that Mr Sullivan’s delusions did not have a substantial adverse effect between the two episodes identified in 2013 and 2017. In addition, the tribunal was entitled to find that the issues with Mr Sullivan’s attendance and attitude at work between 2014 and 2017 were not linked to his delusions as these behaviours pre-dated his delusions. This, coupled with the fact that Mr Sullivan did not make his employer aware of continuing delusions so as to draw a link between them were key factors in the tribunal’s reasoning being upheld.
The EAT found that the tribunal was entitled to find that the reoccurrence of Mr Sullivan’s delusions did not qualify as a ‘long-term’ disability because the tribunal had considered the specific circumstances around each event. Based on the evidence available at the time in 2013 it could not be said, in the tribunal’s view, that the delusions were likely to recur. The episode in 2017 was set apart because this was triggered by the one-off remuneration discussions which, when considered in the wider context, could also not be said to show Mr Sullivan’s delusions were likely to recur.
Agreeing with the tribunal’s finding that BSCL did not have actual or constructive knowledge of Mr Sullivan’s disability, the EAT found that the tribunal was entitled to factor in Mr Sullivan’s colleague’s evidence when reaching this conclusion. In this case BSCL was a small company and this colleague, who sat close by, had not noticed the effects Mr Sullivan claimed his delusions had on his personal appearance, hygiene and sleep. Therefore, this evidence could be relied on to conclude BSCL did not have actual or constructive knowledge of Mr Sullivan’s continued delusions.
This case provides a reminder that claimants have to show all of the key elements of the definition of disability applied at the same time and, in particular, that the substantial adverse effect either was, or was likely to be, long-lasting. In Mr Sullivan’s case the tribunal concluded there was insufficient evidence to show that the substantial adverse effects of Mr Sullivan’s delusions were long-term.
In particular, the view that BSCL could not be considered to view the delusions as likely to recur, and thus be long-lasting, is useful as it demonstrates that the likelihood of long-term effects must be clear at the particular time, not in retrospect.
This case is also useful because it shows that where a claimant links a purported disability to the effect it has on their work, witness evidence from colleagues may be used to refute such claims which will be useful to prevent an employee establishing they had a disability and/or that the employer had knowledge of the disability.
If you would like to discuss any aspect of this article further, please contact Michael Crowther or any other member of the Employment team on 0113 244 6100.
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The information in this article is necessarily of a general nature. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.