Thread by @JasonBraier

1/ Sullivan v Bury Street Capital: CA doesn't take opportunity to clarify likelihood/recurrence tests, holding it's all a question of fact.

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2/ S was a senior sales exec with a small capital-raising/advisory firm. He entered a personal relationship with a Ukrainian lady. They split up & he then became convinced he was being continually monitored by a Russian gang to whom she had connections.

3/ S's concerns were found to be paranoid delusions. They resulted in him making wholesale changes to various aspects of his life, including installing CCTV, changing the locks, refusing on occasion to go home & a real nervousness about use of communications tech.

4/ The ET found that from May-Sept 2013 S suffered substantial adverse effects on ability to carry out normal day-to-day activities as a result of his paranoid delusions, & that he also did so 3.5 years later, from Apr/Jul 2017.

5/ In Sept 2017, S had a GP appointment re his condition & was advised to stay off work for 4 weeks. He was sacked the following day - after 8 years - for his attitude and lacking the skills to carry out his role effectively.

6/ S presented a claim which included s.15 EqA & indirect disability discrim claims. The ET concluded S wasn't disabled & that in any event the employer lacked requisite actual or constructive knowledge of disability.

7/ Whilst S claimed the impairment with SAE continued throughout 2013-2017, the ET found the 1st episode stopped in Sept 2013, placing reliance in part on the lack of observation of colleagues of the effects. The ET had accepted delusional belief persisted throughout.

8/ The ET found the delusional beliefs persisted but not the SAE. In respect of the 2017 SAE, the ET found it not likely it would have continued for at least 12 months, placing considerable reliance on a temporary state of stress resulting from remuneration negotiations.

9/ The ET found the SAE not likely to recur either in 2013 nor 2017, & disability wasn't established. The ET went on to find a lack of knowledge of the disability, if wrong about its existence, noting in particular its findings on the lack of observation of SAEs by S's colleagues

10/ The CA decision doesn't set out in any detail the EAT judgment, but you can find my thread on that here:

https://twitter.com/JasonBraier/status/1305616307837186056

11/ The essence of the CA's rejection of S's appeal can be found in para 36 (& is repeated a number of times throughout) - the CA treats the matter as being a decision on its own facts rather than 1 of an error of law.

12/ It's worth noting that although there was no perversity appeal, the CA was clear that they wouldn't have been minded to allow an appeal on that ground anyway.

13/ The CA was clear that whilst a structured approach to determining disability may be useful, there's no error per se in not following it. The CA also accepted Goodwin guidance on focusing on impairment rather than inability to carry out activities, but found the ET did this.

14/ As regards arguments that it was unsustainable to find the continuous existence of paranoid delusions whilst not finding that amounted to a continuous SAE, the CA once more reverted to the 'it's just a question of fact' analysis.

15/ Arguments based on EC & domestic case law on the width of the definition of 'normal day to day activities' & the lowness of the threshold for substance were given short shrift, once more because the case turned on its particular finding of facts.

16/ The CA turned to S's reliance on the SoS guidance on the definition of disability, which Sch 1 para 12 EqA requires an ET to take into account if it thinks relevant. The CA notes that the guidance imposes no legal obligations nor does it claim to be authoritative on the law.

17/ S placed particular reliance on the fact that an appendix containing an illustrative list of factors which it would be reasonable to regard as having a SAE on normal day-to-day activities includes delusions as an example.

18/ The CA noted that paragraph hadn't been drawn to the ET's attention & held the ET couldn't reasonably be criticised for not referring to it in its decision. This was notwithstanding that Sch1 para 12 is in terms of 'must' nor that Goodwin reinforced that.

19/ A key part of letting the ET off the hook there was that Goodwin focused on the 'early period of the DDA 1995's operation' whereas we're now 25 years further on, but surely if there's something of relevance why should time passed matter?

20/ Moving to the medical evidence, the CA seemingly considered a lay person could be excused for not being able to identify easily the symptoms of a mental health disorder, arguably weighing the dice in an employer's favour in avoiding imputation of constructive knowledge.

21/ The CA turned next to the question of recurrence, once more considering the complaint one on the facts rather than amounting to a question of law. I struggle to see that's a fair analysis of the arguments, which sought carefully to turn attention to construction of 'likely'.

22/ Submissions were made by S that the EqA needed to be read in line with DDA 1995 provisions on past disability that recognised that a disability should be treated as continuing where an impairment ceases to have an SAE & then that SAE recurs.

23/ S noted Jessemey & Blackwood held the EqA to be intended to carry through protections under the legacy acts even though not formally a consolidating act, but the CA held here that those ratios didn't have the force of statute & that it may be that Parliament changed the law.

24/ It's a surprising departure, given how central that understanding of the EqA was to the decisions in those cases. I struggle to see how the decisions could have been justified otherwise, especially in the statutory construction in Jessemey (on which I was on the losing side).

25/ In any event, the CA noted that the provisions relied upon & which had disappeared related to past disabilities, which wasn't the basis of this case. The recurrence provisions under the EqA mirrored those for present disabilities under the DDA.

26/ Unusual features of this case in re likelihood of recurrence were that there was in fact recurrence & also that likelihood of recurrence needed to be considered at 2 time points, unlike in McDougall & in All Answers.

27/ The CA considered as a question of fact the relevance of the 2013 events to whether recurrence was likely in the midst of 2017. They accepted the EAT observation that it may strongly suggest a further episode 'could well happen' but the ET could find otherwise. on the facts.

28/ On knowledge, given that the employer itself knew/reasonably should have known of S's delusions, S asserted it should have been treated as a legal irrelevance that one of his colleagues didn't. The CA disagreed, especially in a small business. I struggle to understand why.

29/ Finally, the CA rejected a suggestion that the ET had asked itself the wrong question. Whilst S relied on the detailed guidance in A Ltd v Z, the CA was satisfied that the very short consideration of the point sufficed.

30/ I believe S is seeking leave to appeal further. The CA judgment is a frustrating one in that it rests on an approach to the appeal as one all turning on questions of fact, whereas I can see it as raising substantive issues of law as to the approach to determining disability.

31/ It will be difficult to get permission (it always is at this stage!), especially given the CA's focus. It will likely be difficult to persuade the SC that there's an arguable point of law of general public importance regardless of S's understandable frustration.

32/ Anyway, for those who have reached tweet 32 in this little thread, here's your reward, a link to the judgment: bailii.org/ew/cases/EWCA/…

Happy reading!

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