The definition of disability in the Equality Act 2010 is that a person has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. One tricky aspect of determining if an employee has a disability can be deciding whether the adverse effect is long term – is it likely to last for 12 months or is it expected to recur. In the recent case of Sullivan v Bury Street Capital, the Employment Appeal Tribunal (EAT) considered the point of whether an impairment is likely to recur.
The employee began suffering from paranoid delusions following a relationship break up in July 2013. The substance of his delusions was that he was being followed and stalked by a Russian gang and he claimed that this affected his timekeeping, attendance and record-keeping at work. His condition improved towards the end of 2013 but in April 2017 it began to worsen again, this time triggered by discussions about his remuneration with his employer. The employee was dismissed in September 2017 on the grounds of poor timekeeping, unauthorised absences and a lack of record-keeping. It was accepted that there had been some problems with his timekeeping and record from the start of his employment, which may have been worsened by the impairment. He brought a claim that his dismissal was discriminatory on the grounds of disability and claimed unfair dismissal.
The issue for the employment tribunal (ET) to consider was whether the mental impairment had a substantial and long-term adverse effect on the employee’s ability to carry out normal day-to-day activities. The ET found that the mental impairment continued from 2013 to 2017, but the substantial effect only lasted for four to five months in 2013, and up to five months in 2017. As the employee was unable to show that it was likely, at the time of the first episode in 2013, that the impairment would recur, he was held not to satisfy the definition of disability, and his discrimination claim failed. He then appealed to the EAT. The EAT held that although the employee’s condition had recurred in 2017, this does not automatically mean it was likely in 2013 that the condition would recur. This is particularly the case when impairment is triggered by an event unlikely to continue or recur – as in this case.
This judgement is liable to make it harder for an employee to prove they have a disability due to a recurring condition, because they can’t simply rely on the fact that the impairment has recurred to show that it was likely to recur at any point in the future.