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In brief

In this case, an employee who was suffering paranoid delusions was not disabled for the purposes of the Equality Act 2010 because he was unable to show that his condition had had a substantial long term impact on his day to day life and was likely to recur.

Key takeaway

In assessing whether a condition is “likely to recur”, a tribunal looks at the evidence at the time when the alleged discrimination took place.  If the tribunal finds that at that point the substantial adverse effect caused by the condition was unlikely to last for at least 12 months or recur, it does not matter if it did in fact recur at a later date. In making its assessment, the tribunal is entitled to prefer a different conclusion to that of a medical expert, provided the tribunal explains properly why it has reached that conclusion, and it did so here.

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Under the Equality Act, a person has a disability if they have 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.  If an impairment ceases to have a substantial adverse effect on a person’s ability to carry out such activities, it may still be treated as continuing to have that effect if the effect is likely to recur.

Mr Sullivan was employed by the Respondent as a senior sales executive from 2008 until his dismissal in September 2017. There was a degree of tension between him and Mr Drake, the CEO, from near the beginning of his employment because of Mr Sullivan’s lack of punctuality and poor record keeping.

Mr Sullivan briefly dated a Ukrainian woman and shortly after the relationship came to an end, came to believe that he was being followed by a Russian gang.  By May 2013 he was suffering extreme symptoms of paranoid delusions, and believed his home and work telephone and IT systems were under surveillance, and that the gang had entered his home when he was not there.  These delusions further affected his time keeping, attendance and record keeping and in July and August of 2013, Mr Drake had recorded that Mr Sullivan’s delusions were having a significant effect on him and attributed his poor attendance and unusual behaviour to the effects of his paranoia.  However, in September 2013 Mr Sullivan accompanied Mr Drake to New York on business, where his performance was commended and Mr Sullivan assured the CEO that his condition was improving.

In February 2014, Mr Sullivan told his doctor that he could still see the Russian gang, but that he was managing to cope with this. In May 2014 he visited a psychologist.  In both July and September 2014 he reported that he was seeing the gang, but was able to focus on his work.  From July 2014 until September 2017, Mr Drake held regular reviews with Mr Sullivan, at which the CEO frequently complained of his timekeeping and attitude but Mr Sullivan did not say that these were due to his continuing paranoid delusions.

Mr Sullivan was eventually dismissed in September 2017 for lack of timekeeping, communication, record keeping and unauthorised absences. He brought claims of unfair dismissal, discrimination arising from disability, indirect disability discrimination and failure to make reasonable adjustments.

The tribunal heard evidence from the claimant and from a doctor who said that in his opinion there was an impairment throughout the period.  The tribunal found that he did not have a disability as defined by the Equality Act since the substantial adverse effect on his ability to carry out day-to-day activities did not continue beyond September 2013 when he went to New York with Mr Drake.  While his delusions continued throughout the period, the substantial adverse effect did not, and the tribunal found it was not likely that such effect, even if found, would continue for at least 12 months.  Finally, the episode of paranoid delusion which had impacted his day to day life was not likely to recur.

The tribunal found that Mr Sullivan had been unfairly dismissed but his other claims were all rejected.

He appealed to the EAT, arguing that the tribunal had erred in finding that the substantial adverse effect did not persist throughout the period, and in finding that was it was not likely to recur.

EAT dismissed Mr Sullivan’s appeal.

The EAT held that the employment tribunal did not err in deciding the long term requirement in the definition of disability was not met.

The tribunal was entitled to prefer a different conclusion to that of a medical expert, provided the tribunal explains properly why it has reached that conclusion, and it did so here. It was entitled to conclude on the evidence, particularly that of the claimant’s colleague who had worked in close proximity to Mr Sullivan for some years, that there was a substantial adverse effect in 2013 and then again in 2017, but that in neither case was it likely that the adverse effect would last for 12 months or that it would recur.   The employer’s comments about his paranoia made in the period between 2013 and 2017 were at most knowledge of an impairment, but not of any substantial adverse effect nor of its longevity.  The EAT concluded that, “Although in many instances, the fact that a substantial adverse effect has recurred episodically might strongly suggest that a further episode is something that “could well happen”, that will not always be.”

We understand that Mr Sullivan has applied for leave to appeal.

Author

James Brown is a Knowledge Lawyer in Baker McKenzie's London office.

Author

Rachel Farr is a Knowledge Lawyer in Baker McKenzie's London office.

Author

Mandy Li is a Knowledge Lawyer in Baker McKenzie London office.