Thread by @JasonBraier

1/If an ET accepts a man has had paranoid delusions for 4 years that a Russian gang is out to get him, is he disabled? Not necessarily, said the EAT in Sullivan v Bury Street Capital. I'm not convinced the EAT came out with the right answer. assets.publishing.service.gov.uk/media/5f58d6ee… #ukemplaw

2/ S was a sales exec. Following a short relationship with a Ukrainian woman, he started having paranoid delusions that a group of linked Russians were out to get him. Those delusions started in around May 2013 & continued to Sept '17 when S was dismissed after signing off sick.

3/ S said the delusions impacted him in various ways - sleep deprivation, neglect of friends, timekeeping/attendance issues, personal hygiene, attendance to his personal mail. He was supported by the opinion of a joint medical expert & a psychiatrist.

4/ He wasn't wholly supported though by the evidence of colleagues. His line manager, D, accepted the existence of the delusions from May 2013, but suggested S was pretty much back to normal by the September. A colleague, Mr I, said he noticed nothing after joining in 2014.

5/ The ET accepted S had delusions & hence an impairment throughout, but found substantial adverse impact ('SAE') lasted only from around May-Sept 2013 & then a few months pre-dismissal in Sept 2017, but not in between.

6/ From those findings, the ET then found that the SAE in neither period was likely (at the time - consistently with the approach in McDougall) to last at least 12 months, nor was the SAE likely to recur at either point (even though it had).

7/ S appealed that decision (& a further part of the judgment on knowledge, dealt with at the end of this thread). The principal challenges were (i) to the finding the SAE didn't persist throughout the time & (ii) to the finding against recurrence.

8/ On persistence, S pointed to the SoS's guidance where it is specified as being reasonable to consider persistent delusions on their own, absent other effects, as amounting to a SAE. Complaint was also made of the ET preferring a colleague's evidence on impact to S & the Dr.

9/ The EAT held that inclusion of delusions in the guidance wasn't determinative & one could have paranoid delusions without an SAE on normal day-to-day activities. That though is to sidestep that the focus of the guidance is clearly on delusions as SAE, not merely as impairment.

10/ On the approach to findings of fact, the EAT noted (uncontroversially) an expert report assists the ET rather than determining the ET's conclusion & that an ET could legitimately prefer a different conclusion if it explains properly why. The EAT held the ET did that here.

11/ Moving to recurrence, S noted the SCA v Boyle test under which 'likely' means 'could well happen', a low bar. S also noted the past disabilities definition under the old DDA deemed SAE to exist in the interim between 2 periods of recurrence.

12/ The DDA argument (reliant on Jessemey v Rowstock re the EqA's intention being to consolidate rather than to change protections) was swatted away on the basis it concerned past disabilities, which wasn't how S's case had been put.

13/ S's strongest argument on SAE was, to my mind, that there had been a recurrence of the accepted SAE, & given the delusions were found to persist how did S not meet the low bar of showing a recurrence could well happen in the future?

14/ The EAT's answer to that clung to the raft of the charitable factual findings in R's favour the ET made. The ET found that the 2nd period of SAE was triggered by discussion about S's remuneration. How then could the ET really find nothing was likely to trigger a 3rd period?

15/ In the context of S's continuing paranoid delusions & tacit acknowledgement by the ET that in that continuing context a SAE had been triggered, how could it not be satisfied that the low bar of the 'could well happen' test wasn't meet?

16/ It's worth remembering in this regard the CJEU judgment in Daouidi v Bootes Plus, in which a Spanish kitchen assistant dislocated his elbow & the court considered the lack of any prognosis of short term progress a key factor in finding the long term element of the test met.

16/ To my mind, either the conclusion reached was perverse (albeit that wasn't argued on appeal) or the ET applied too narrow a 'could well happen' test, either by applying too high a threshold or by ignoring the relevance of hypothetical future adverse events as SAE triggers.

17/ After dealing with the s.6 disability definition, the ET had looked at knowledge & determined that R lacked the requisite knowledge of the SAE element of the s.6 test at the point of dismissal. Mr I's denial of awareness of SAE was heavily relied upon.

18/ That conclusion was challenged given the need to focus on the corporate knowledge, & especially given D and another manager were aware not only of earlier SAE but showed continuous awareness of the existence of the delusions. S said they either knew or knew enough to inquire.

19/ The EAT set out the approach to knowledge under EqA s.15(2) summarised in A Ltd v Z, placing particular reliance on the need for actual or constructive knowledge of each constituent part of the s.6 definition of disability.

20/ This is perhaps where the EAT is at its most charitable to R. Whilst accepting knowledge of impairment & even of the 1st period of SAE, the EAT considered that R couldn't reasonably have been expected to know the SAE was likely to be long term.

21/ Can that really be so? Knowing S had delusions for 4 years & there had been a SAE (ignoring delusions as a SAE in themselves) in the past & that S had been signed off sick by the Dr when discussing changing his terms, is that really not enough to provide the flashing lights?