- Do Paranoid delusions amount to disability under the Equality Act 2010 (EA)? - The Court of Appeal decision in the case of Stephen Sullivan v Bury Street Capital Limited 2021 would seem to suggest no. The CA decided the adverse effect on the employee’s ability to carry out normal activities was not likely to be long term as the employee’s health condition arose from a reaction to a life event. His relationship with his Ukrainian partner broke down and the employee was convinced that he was being stalked and monitored by a Russian gang connected to her. This such as withdrawing socially, living in hotels, and attendance and timekeeping at work being affected. There were 2 major incidents of paranoid delusions in 2013 lasting 4 to 5 months and a further period in 2017 for 3 to 4 months and his health condition may have persisted to dismissal in 2017. However the evidence before the Court suggested that his health condition did not have a substantial adverse effect over its entirety from 2013 to 2017 as for a condition to be a disability under (EA), it had to have a substantial adverse effect on the employee’s day to day activities even if the condition itself lasts for longer than this. Normally for a disability to fall within Equality Act 2010, it should last for more than 12 months or likely to be so.
- Is it disability discrimination where employer discovers employee’s disability after the dismissal? This was addressed by the Employment Appeal Tribunal (EAT) in the recent case of Stott v Ralli where the employee Ms Scot (S) was dismissed by her Employer (a law firm) with wages in lieu of notice during her probation period as they had discovered that (S) had made several written errors in her work. (S) raised a grievance alleging harassment as she perceived herself as a model employee where her performance was not an issue and that she had made her manager aware of not sleeping well and not being herself thus suggesting depression. Also, she had communicated to several individuals within the law firm that her performance was due to mental ill-health and a heart condition. Her grievance and appeal were dismissed.
(S) took matter to Employment Tribunal alleging the Employer were in breach of section 15 (EA) has she had been discriminated against as her poor performance was something arising out of her disability ie anxiety and depression.
The defences to section 15, is for the Employer to justify that the discrimination was a proportionate means of achieving a legitimate aim or that it didn’t know (and could not reasonably be expected to know) that the person had a disability. (S) had to show that her Employer had actual, implied or constructive knowledge of her disability and here the Employer acknowledged (S) had an impairment but argued that only aware of this after (S) was dismissed.
The Tribunal accepted that based upon the work place environment ie working for a law firm and client relationship, the role required high standard of accuracy in written skills of the English language hence there was a legitimate aim to be achieved where supervision and training support given by the employer had not helped (S) to avoid errors thus dismissal was a proportionate means of achieving that legitimate aim and found that that the employer didn't know about (S)'s disability until after her dismissal.
The matter was appealed by (S) to (EAT) and she argued that her Employer had knowledge of her condition during the grievance process and that should form an integral part of the dismissal process, however the (EAT) disagreed as concluded that the grievance and appeal procedures were separate from and didn't form part of the dismissal process.
The (EAT) decision in the above case must be taken with caution. Had (S) argued that by dismissing her grievance amounted itself to an act of discrimination arising from disability, then maybe the Tribunal could have arrived at a different decision, as unlike with unfair dismissal cases where in light of provisions within the Employment Rights Act 1996 one must take into account all of the circumstances up to and including an appeal, in discrimination cases the question of whether the dismissal and appeal are discriminatory are two distinct questions and must be treated as separate issues. In the case of Baldeh v Churches Housing Association 2019 the Tribunal arrived at a different conclusion to the above case on the Employer’s knowledge of disability based upon relatively similar facts. The Employee was dismissed within her 6 months’ probation period for poor performance and behaviour. On appeal she explained that she was suffering from depression which could have affected her behaviour towards her colleagues, but her appeal was rejected. It went to (EAT) who concluded that although Employer was unaware of her mental health at point of dismissal but acquired actual or constructive knowledge of it before the rejection of her appeal which formed part of the unfavourable treatment employee complained about.
- Should an Employer investigate further where on an appeal the dismissed employee alleges his aggressive behaviour is related to mental health and medication? The (EAT) decision in the case of Daley v. Vodafone Automotive Ltd 2020 would appear to suggest yes, where the employee was dismissed for gross misconduct over offensive, threatening, intimidating behaviour and use of abusive language against a fellow work colleague and only raised on appeal his health condition of severe depression for more than a year and the intake of high dosage medication that had various side of effects like aggressive behaviour which may have been important mitigating reasons for his misconduct.
Please note that this article is for information purposes only and should not be relied upon as being authoritative on the matter as disability discrimination is a complex area of the law however further guidance on the matter can be provided by contacting our HR/legal advice-line on 01455 852028.
