Liverpool: 0151 224 0500   |   Manchester: 0161 827 4600   |   Email: info@bermans.co.uk   |   Twitter Icon  |  Linkedin Icon
bermans_logo

Disability

adrian_fryer

In order to qualify as a disability under the Equality Act 2010, an impairment must have a substantial and long-term adverse effect on an individual’s ability to do day to day activities. In order to be long term, a substantial adverse effect must have lasted, or be likely to last, at least 12 months, or be likely to recur.

A tribunal will look at medical evidence and the employee’s own witness evidence about the effects of their impairment. But they will also look at other evidence, including the employer’s, if that is relevant.

In Sullivan v Bury Street Capital Limited, the employee was a sales executive in a small company. In 2013, he suffered paranoid delusions that he was being stalked by a Russian gang following a split from a Ukrainian partner. He had previously had issues with timekeeping, attendance and record keeping, but the delusions made this worse. The employee sought treatment and his condition improved, so much so that his boss invited him on an important business meeting to New York in September 2013. In April 2017, his delusions began having a greater impact on him. He was eventually dismissed in September 2017 due to his capability and attitude. He claimed unfair dismissal and disability discrimination, saying his paranoid delusions had had a substantial adverse effect from 2013. At the hearing, a joint medical expert confirmed this, although conceded that he couldn’t be sure about the effects as he was relying on the employee’s account.

The employment tribunal overrode the medical evidence and said the employee was not disabled. The employee said the delusions had such an impact during the whole period that he would arrive at work exhausted, struggle to stay awake and couldn’t concentrate on work. He said it affected his personal hygiene. But the tribunal preferred the evidence from the employee’s boss and a colleague who sat close to him in the office. The colleague didn’t know anything about the delusions despite working alongside him for many years, and said the employee was exaggerating his symptoms. In evidence, the employee conceded he showered daily, flying in the face of his own witness statement on personal hygiene. The tribunal said the delusions had a substantial adverse effect for a few months in 2013 and then again in 2017 but at neither point was the effect likely to last 12 months or recur. The employee appealed but the EAT upheld the decision. They said the tribunal was at liberty to weigh up all the evidence, including but not limited to medical evidence, and arrive at its own decision.

This case confirms the position that legal disability is a question for the tribunal rather than a doctor. This is something which is often misunderstood by both employers and employees. Medical evidence is just one piece of the puzzle. In this case, the employee chose to rely on effects that his impairment had on him at work. This could be directly countered by colleagues who were around him and, together with inconsistencies in the employee’s own evidence, were fatal to his disability assertions.

 

Contact

Sign up for Bermans Newsletters