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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Sullivan v Bury Street Capital Limited [2021] EWCA Civ 1694 (16 November 2021) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1694.html Cite as: [2022] IRLR 159, [2021] EWCA Civ 1694 |
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ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
MR JUSTICE CHOUDHURY (P)
UKEAT/0317/19/BA
[2020] UKEAT 0317_19_0909
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE SINGH
and
LADY JUSTICE ELISABETH LAING
____________________
STEPHEN SULLIVAN |
Appellant |
|
- and - |
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BURY STREET CAPITAL LIMITED |
Respondent |
____________________
Michael Lee (instructed by Ward Bolton) for the Respondent
Hearing date: 19 October 2021
____________________
Crown Copyright ©
Lord Justice Singh:
Introduction
Factual Background
(1) concluding that the Appellant was not disabled, particularly given its approach to the likelihood of recurrence issue, and
(2) in finding that the Respondent lacked actual or constructive knowledge of his disability.
The judgment of the ET
"95. The Claimant's impact statement … described adverse effects on the day-to-day activities of sleeping and engaging in social interaction. He presented these as applying from May 2013 onwards, with some help being derived from the sessions with Ms Watson in 2014. He stated that he remained, however, anxious about the Russian gang and Mr Drake's intentions towards him, and that things took a substantial turn for the worse in April 2017 with the discussion of altered terms as to remuneration.
96. The Tribunal reminded itself that the issues as to impairment, and effect on day-to-day activities are not matters for decision by medical experts, but by the Tribunal. They are to be distinguished from purely diagnostic or clinical conclusions.
97. The Tribunal found that, as from around May 2013, there was a substantial adverse effect on the Claimant's ability to carry out normal day to day activities of sleeping and social interaction. By 27 July 2013 Mr Drake had recorded that the Claimant's belief about the Russian gang was having a significant effect on him, and on 1 August 2013 Mr Drake linked poor attendance and erratic behaviour on the Claimant's part to this. The fact that Mr Drake observed these effects assisted the Tribunal in deciding that they were present at the time."
"98.1 If there had been such an effect, Mr Drake would have observed it and probably would not have allowed the Claimant to take part in the important meetings in New York in September 2013. Mr Drake had not forgotten about, nor was he ignoring, the Claimant's problem: as we have found, there was some discussion of this, and the Claimant probably said that things were improving.
98.2 On all accounts, the Claimant appeared re-invigorated by October 2013.
98.3 The Claimant conceded a number of important points in cross-examination. Although commenting that Mr Drake had not specifically asked him, the Claimant agreed that he had not told him that his security concerns were causing him to avoid giving information about his appointments or whereabouts, or to avoid keeping a diary. He agreed that he did not discuss with Mr Drake the effect of his condition on the day-to-day activities described in paragraph 33 of his impact statement (at page 1179), and agreed that he did not speak to Mr Hodgkin about being followed. Contrary to what he said about neglecting personal hygiene, he accepted that he in fact showered every morning.
98.4 In their email exchanges, Mr Drake and Mr Hodgkin commented freely about the Claimant: between September 2013 and 27 July 2017, when Mr Drake commented on the Claimant complaining of sleepless nights, they did not mention anything which could be understood as referring to a substantial adverse effect on the ability to carry out normal day-to-day activities. The Tribunal found it likely that they would have commented had they observed such an effect; and that they would have observed it had it been present.
98.5 From September 2014 onwards, Mr Isoaho did not notice anything about the Claimant that indicated a substantial adverse effect on the ability to carry out normal day-to-day activities. The Tribunal would have expected him to have noticed such an effect had it been there to be observed, given that he was working in close proximity to the Claimant.
98.6 Although Dr Wise stated that he had no reason to disbelieve the Claimant's account, he also said in cross-examination that he could not be sure about the impact of the Claimant's condition.
98.7 It was important, in the Tribunal's judgment, to distinguish between the Claimant's continuing belief in the Russian gang, and the effect that such a belief had on his ability to carry out normal day-to-day activities. The Tribunal accepted that the Claimant's delusional beliefs persisted throughout the material period: but the evidence did not show that a substantial adverse effect on his ability to carry out normal day-to-day activities also persisted."
"101 The Tribunal found that, during this period, it was not likely that the substantial adverse effect would continue for at least 12 months. In 2013 the substantial adverse effect had lasted for around 4-5 months, as the Tribunal has found. During this period in 2017, the Claimant was under particular stress by reason of the discussions about the basis of his remuneration. These were not going to continue indefinitely, and it was likely that his condition would improve once they were resolved. The Tribunal concluded that so far as this episode in 2017 is concerned, it was likely that the substantial adverse effect would continue, like that of 2013, for a number of months, but for rather less than 12 months."
Material legislation
"A person (P) has a disability if –
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities."
"(1) A person (A) discriminates against a disabled person (B) if –
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability."
"(1) The effect of an impairment is long-term if—
(a) it has lasted for at least 12 months,
(b) it is likely to last for at least 12 months, or
(c) it is likely to last for the rest of the life of the person affected.
(2) If an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur."
"(1) An impairment is to be treated as having a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities if –
(a) measures are being taken to treat or correct it, and
(b) but for that, it would be likely to have that effect.
(2) 'Measures' includes, in particular, medical treatment …"
Grounds of Appeal
(1) The ET erred in finding that there was no SAE throughout the period from 2013 to 2017 ("Ground 1").
(2) Alternatively, it erred in finding that the Appellant did not have a recurring condition ("Ground 2").
(3) It erred in finding that the Respondent did not have actual or constructive knowledge of the disability ("Ground 3").
Overview
(1) Was there an impairment?
(2) What were its adverse effects?
(3) Were they more than minor or trivial?
(4) Was there a real possibility that they would continue for more than 12 months or that they would recur?
(5) Insofar as knowledge was relevant (under sections 15 and 20 of the 2010 Act but not under section 19) what did the employer actually know? What steps could they reasonably have taken to find out more? And what would they have reasonably concluded if they had taken those steps?
"57. The following principles, which I take to be well established by the authorities, govern the approach of an appellate tribunal or court to the reasons given by an employment tribunal:
(1) The decision of an employment tribunal must be read fairly and as a whole, without focusing merely on individual phrases or passages in isolation, and without being hypercritical. In Brent v Fuller [2011] ICR 806, Mummery LJ said at p. 813:
'The reading of an employment tribunal decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which a decision is written; focussing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid'.
…
(2) A tribunal is not required to identify all the evidence relied on in reaching its conclusions of fact. To impose such a requirement would put an intolerable burden on any fact finder. Nor is it required to express every step of its reasoning in any greater degree of detail than that necessary to be Meek compliant (Meek v Birmingham City Council [1987] IRLR 250). Expression of the findings and reasoning in terms which are as simple, clear and concise as possible is to be encouraged. In Meek, Bingham LJ quoted with approval what Donaldson LJ had said in UCATT v. Brain [1981] ICR 542 at 551:
'Industrial tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law ... their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given.'
(3) It follows from (2) that it is not legitimate for an appellate court or tribunal to reason that a failure by an employment tribunal to refer to evidence means that it did not exist, or that a failure to refer to it means that it was not taken into account in reaching the conclusions expressed in the decision. What is out of sight in the language of the decision is not to be presumed to be non-existent or out of mind. As Waite J expressed it in RSPB v Croucher [1984] ICR 604 at 609-610:
'We have to remind ourselves also of the important principle that decisions are not to be scrutinised closely word by word, line by line, and that for clarity's and brevity's sake industrial tribunals are not to be expected to set out every factor and every piece of evidence that has weighed with them before reaching their decision; and it is for us to recall that what is out of sight in the language of a decision is not to be presumed necessarily to have been out of mind. It is our duty to assume in an industrial tribunal's favour that all the relevant evidence and all the relevant factors were in their minds, whether express reference to that appears in their final decision or not; and that has been well-established by the decisions of the Court of Appeal in Retarded Children's Aid Society Ltd. v. Day [1978] ICR 437 and in the recent decision in Varndell v. Kearney & Trecker Marwin Ltd [1983] ICR 683.'
58. Moreover, where a tribunal has correctly stated the legal principles to be applied, an appellate tribunal or court should, in my view, be slow to conclude that it has not applied those principles, and should generally do so only where it is clear from the language used that a different principle has been applied to the facts found. Tribunals sometimes make errors, having stated the principles correctly but slipping up in their application, as the case law demonstrates; but if the correct principles were in the tribunal's mind, as demonstrated by their being identified in the express terms of the decision, the tribunal can be expected to have been seeking faithfully to apply them, and to have done so unless the contrary is clear from the language of its decision. This presumption ought to be all the stronger where, as in the present case, the decision is by an experienced specialist tribunal applying very familiar principles whose application forms a significant part of its day to day judicial workload."
Ground 1
"In Goodwin, Morison J analysed the predecessor provision in the DDA 1995 into four components, [1999] IRLR 4 (at 6–7), [1999] ICR 302 (at 308 B–C):
'3. Section 1(1) defines the circumstances in which a person has a disability within the meaning of the Act. The words of the section require a tribunal to look at the evidence by reference to four different conditions.
(1) The impairment condition
Does the applicant have an impairment which is either mental or physical?
(2) The adverse effect condition
Does the impairment affect the applicant's ability to carry out normal day-to-day activities …, and does it have an adverse effect?
(3) The substantial condition
Is the adverse effect (upon the applicant's ability) substantial?
(4) The long-term condition
Is the adverse effect (upon the applicant's ability) long-term?
Frequently, there will be a complete overlap between conditions (3) and (4), but it will be as well to bear all four of them in mind. Tribunals may find it helpful to address each of the questions but at the same time be aware of the risk that disaggregation should not take one's eye off the whole picture.' [emphasis added] "
"In many ways this may be the most difficult of the four conditions to judge. There are a number of general comments to be made. What the Act of 1995 is concerned with is an impairment of the person's ability to carry out activities. The fact that a person can carry out such activities does not mean that his ability to carry them out has not been impaired. Thus, for example, a person may be able to cook but only with the greatest difficulty. In order to constitute an adverse effect, it is not the doing of the acts which is the focus of attention but rather the ability to do (or not do) the acts. Experience shows that disabled persons often adjust their lives and circumstances to enable them to cope for themselves. Thus, a person whose capacity to communicate through normal speech was obviously impaired might well choose, more or less voluntarily, to live on their own. If one asked such a person whether they managed to carry on their daily lives without undue problems, the answer might well be 'Yes', yet their ability to lead a 'normal' life had obviously been impaired. Such a person would be unable to communicate through speech and the ability to communicate through speech is obviously a capacity which is needed for carrying out normal day-to-day activities, whether at work or at home. If asked whether they could use the telephone, or ask for directions, or which bus to take, the answer would be 'No'. Those might be regarded as day-to-day activities contemplated by the legislation and that person's ability to carry them out would clearly be regarded as adversely affected. Furthermore, disabled persons are likely, habitually, to play down the effect that their disabilities have on their daily lives. If asked whether they are able to cope at home, the answer may well be 'Yes', even though, on analysis, many of the ordinary day-to-day tasks were done with great difficulty due to the person's impaired ability to carry them out. …"
"… The courts have repeatedly told appellants that it is not acceptable to comb through a set of reasons for hints of error and fragments of mistake, and to try to assemble these into a case for upsetting the decision. No more is it acceptable to comb through a patently deficient decision for signs of the missing elements, and to try to amplify these by argument into an adequate set of reasons. Just as the courts will not interfere with a decision, whatever its incidental flaws, which has covered the correct ground and answered the right questions, so they should not uphold a decision which has failed in this basic task, whatever its other virtues."
"… Where it is not disputed that the employee is suffering a substantial disadvantage because of the effects of his or her disability in the procedures adopted for deciding between candidates for promotion, the only proper inference is that those effects must involve a more than trivial effect on his ability to undertake normal day-to-day activities. It would fundamentally undermine the protection which the Act is designed to provide were it otherwise."
"It is clear … from the definition in section 6(1)(b) of the Equality Act 2010, that what a tribunal has to consider is an adverse effect, and that it is an adverse effect not upon his carrying out normal day-to-day activities but upon his ability to so. Because the effect is adverse, the focus of a tribunal must necessarily be upon that which a claimant maintains he cannot do as a result of his physical or mental impairment. Once he has established that there is an effect, that it is adverse, that it is an effect upon his ability, that is to carry out normal day-to-day activities, a tribunal has then to assess whether that is or is not substantial. Here, however, it has to bear in mind the definition of substantial which is contained in section 212(1) of the Act. It means more than minor or trivial. In other words, the Act itself does not create a spectrum running smoothly from those matters which are clearly of substantial effect to those matters which are clearly trivial but provides for a bifurcation: unless a matter can be classified as within the heading 'trivial' or 'insubstantial', it must be treated as substantial. There is therefore little room for any form of sliding scale between one and the other."
Authorities from the CJEU
Explanatory Notes
"674. This Schedule replaces similar provisions in the Disability Discrimination Act 1995. However, the Act introduces one change by removing the requirement to consider a list of eight capacities, such as mobility or speech, hearing or eyesight, when considering whether or not a person is disabled. This change will make it easier for some people to demonstrate that they meet the definition of a disabled person. It will assist those who currently find it difficult to show that their impairment adversely affects their ability to carry out a normal day-to-day activity which involves one of these capacities.
Example
675. A man with depression finds even the simplest of tasks or decisions difficult, for example getting up in the morning and getting washed and dressed. He is also forgetful and can't plan ahead. Together, these amount to a 'substantial adverse effect' on his ability to carry out normal day-to-day activities. The man has experienced a number of separate periods of depression over a period of two years, which have been diagnosed as part of an underlying mental health condition. The impairment is therefore considered to be 'long-term' and he is a disabled person for the purposes of the Act."
Guidance
"In contrast, a woman has two discrete episodes of depression within a ten-month period. In month one she loses her job and has a period of depression lasting six weeks. In month nine she experiences a bereavement and has a further episode of depression lasting eight weeks. Even though she has experienced two episodes of depression she will not be covered by the Act. This is because, as at this stage, the effects of her impairment have not yet lasted more than 12 months after the first occurrence, and there is no evidence that these episodes are part of an underlying condition of depression which is likely to recur beyond the 12-month period.
However, if there was evidence to show that the two episodes did arise from an underlying condition of depression, the effects of which are likely to recur beyond the 12-month period, she would satisfy the long term requirement."
"Whether a person satisfies the definition of a disabled person for the purposes of the Act will depend upon the full circumstances of the case. That is, whether the substantial adverse effect of the impairment on normal day-to-day activities is long term.
In the following examples, the effect described should be thought of as if it were the only effect of the impairment.
…"
"Frequent confused behaviour, intrusive thoughts, feelings of being controlled, or delusions."
Medical evidence
"53. Mr Sullivan has abnormal thoughts, namely persecutory delusions of being followed in person and in the digital world.
54. The consequence of this is alterations in his levels of distress and arousal, a drop in his social activities, and declines in his use of social media, self-care, and attendance to mail.
55. If the tribunal accepts that these are more than minor or trivial impairments in normal day-to-day activities then by reason of his mental disorder he would have a disability.
56. In my opinion given there were major episodes in 2013 and 2017 and the content has not disappeared for more than a season, at best, in the intervening period, means they have lasted for longer than twelve months or they are likely to recur in the future.
57. Whilst the condition has ameliorated with reduced drinking and reduced levels of stress the symptoms have not abated for a substantial period of time and more prolonged interventions are required for a good prognosis."
The Appellant's disability impact statement
Ground 2
"(1) The effect of an impairment is a long-term effect if it has lasted for at least 12 months.
(2) Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if that effect recurs.
(3) For the purposes of sub-paragraph (2), the recurrence of an effect shall be disregarded in prescribed circumstances."
"Although the [2010] Act is not formally a consolidating statute, its purpose was to re-state, with some clarifications and enhancements where necessary, existing protections against discrimination."
"It would be remarkable if Parliament intended to remove that protection. As Mr Milsom submitted … it was not the purpose of the 2010 Act to reduce the scope of protection against discrimination."
"…Our second example is of a woman who over, say, a five-year period suffers several short episodes of depression which have a substantial adverse impact on her ability to carry out normal day-to-day activities but who between those episodes is symptom-free and does not require treatment. In such a case it may be appropriate, though the question is one on which medical evidence would be required, to regard her as suffering from a mental impairment throughout the period in question, i.e. even between episodes: the model would be not of a number of discrete illnesses but of a single condition producing recurrent symptomatic episodes. In the former case, the issue of whether the second illness amounted to a disability would fall to be answered simply by reference to the degree and duration of the adverse effects of that illness. But in the latter, the woman could, if the medical evidence supported the diagnosis of a condition producing recurrent symptomatic episodes, properly claim to be disabled throughout the period: even if each individual episode were too short for its adverse effects (including 'deduced effects') to be regarded as 'long-term' she could invoke paragraph 2(2) of Schedule 1 (provided she could show that the effects were 'likely' to recur) – see para 8(2) above."
"… The evidence relating to the relevant time either will, or will not, prove the likelihood of recurrence. If it does prove it, evidence of subsequent events is unnecessary and irrelevant. If it does not prove it, evidence of those events cannot fill the gap. That is because it is fallacious to assume that the occurrence of an event in month six proves that, viewing the matter exclusively as at month one, that occurrence was likely. It does not. It merely proves that the event happened, but by itself leaves unanswered whether, looking at the matter six months earlier, it was likely to happen, a question which has to be answered exclusively by reference to the evidence then available. …" (Emphasis in original)
Ground 3
"In determining whether the employer had requisite knowledge for section 15(2) purposes, the following principles are uncontroversial between the parties in this appeal:
(1) There need only be actual or constructive knowledge as to the disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment: see York City Council v Grosset [2018] ICR 1492, para 39.
(2) The respondent need not have constructive knowledge of the complainant's diagnosis to satisfy the requirements of section 15(2); it is, however, for the employer to show that it was unreasonable for it to be expected to know that a person (a) suffered an impediment to his physical or mental health, or (b) that that impairment had a substantial and (c) long term effect: see Donelien v Liberata UK Ltd (unreported) 16 December 2014, para 5, per Langstaff J (President), and also see Pnaiser v NHS England [2016] IRLR170, para 69, per Simler J.
(3) The question of reasonableness is one of fact and evaluation: see Donelien v Liberata UK Ltd [2018] IRLR 535, para 27; none the less, such assessments must be adequately and coherently reasoned and must take into account all relevant factors and not take into account those that are irrelevant.
(4) When assessing the question of constructive knowledge, an employee's representations as to the cause of absence or disability-related symptoms can be of importance: (i) because, in asking whether the employee has suffered substantial adverse effect, a reaction to life events may fall short of the definition of disability for Equality Act purposes (see Herry v Dudley Metropolitan Borough Council [2017] ICR 610, per Judge David Richardson, citing J v DLA Piper UK llp [2010] ICR1052), and (ii) because, without knowing the likely cause of a given impairment, 'it becomes much more difficult to know whether it may well last for more than 12 months, if it has not [already] done so', per Langstaff J in Donelien 16 December 2014, para 31.
(5) The approach adopted to answering the question thus posed by section 15(2) is to be informed by the code, which (relevantly) provides as follows:
'5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'.'
'5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making inquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.'
(6) It is not incumbent upon an employer to make every inquiry where there is little or no basis for doing so: Ridout v TC Group [1998] IRLR 628; Secretary of State for Work and Pensions v Alam [2010] ICR 665.
(7) Reasonableness, for the purposes of section 15(2), must entail a balance between the strictures of making inquiries, the likelihood of such inquiries yielding results and the dignity and privacy of the employee, as recognised by the code."
Conclusion
Lady Justice Elisabeth Laing:
Lord Justice Peter Jackson: