UK: condition with recurring but short-term substantial adverse effect was not disability where recurrence was not likely

The statutory definition of disability for discrimination law purposes requires that an employee show that they have or had an impairment which has a substantial adverse effect on normal day-to-day activities which is long term (lasting or likely to last 12 months or for life);  the effect can be actual or can be deemed to exist while it is "likely to recur".  The EAT in Sullivan v Bury Street Capital Limited has made clear that the fact that an effect has recurred episodically does not automatically mean that it was "likely to recur" (ie, "could well happen") between those episodes.  It was open to a tribunal to find that the effect was not "likely to recur" after the first episode, notwithstanding that it did in fact recur.  This may be the case where there is a triggering event which brings on the substantial adverse effect and which event is itself unlikely to continue or recur.

The employee in this case suffered from paranoid delusions (that a Russian gang was following him) for several years, but these only had a substantial adverse effect on his daily activities for a few months when the delusion started in 2013 following his breakup with his Ukrainian girlfriend, and for a few months in 2017 triggered by discussions about remuneration.  The tribunal was entitled on the facts to reject the suggestion that, between 2013 and 2017 or after 2017, a further episode was likely and therefore its finding that the claimant was not disabled was upheld.

The EAT also held that the tribunal was entitled to conclude that, even if the employee had been disabled, the employer had no actual or constructive knowledge of that disability.  The fact that a colleague who worked closely with the claimant had not noticed any unusual appearance or behaviour was relevant; an individual’s knowledge in his capacity as employee or agent of a company may be relevant in determining whether the company has the requisite knowledge, all the more so where, as here, the company is small, with no more than five or six individuals employed at any given time. Further, although the claimant's manager had information that ought to have suggested that there was a substantial adverse effect, he could not reasonably have been expected to know that it was long-term as the claimant had given the impression things were much improved after the first episode.  Although his poor time-keeping and record-keeping continued, these had started before the onset of the mental impairment and it would not have been reasonable to expect the employer to make further inquiries of the claimant's mental condition in these circumstances.

The case highlights the need for employers to carefully consider each part of the statutory definition and the level of knowledge of colleagues and managers when determining whether an employee qualifies as disabled.

Note: the Court of Appeal dismissed an appeal in this case in November 2021.