Stephen Sullivan v Bury Street Capital Ltd

JurisdictionEngland & Wales
JudgeLord Justice Singh,Lady Justice Elisabeth Laing,Lord Justice Peter Jackson
Judgment Date16 November 2021
Neutral Citation[2021] EWCA Civ 1694
Docket NumberCase No: A2/2021/0091
CourtCourt of Appeal (Civil Division)

[2021] EWCA Civ 1694

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

MR JUSTICE CHOUDHURY (P)

UKEAT/0317/19/BA

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Peter Jackson

Lord Justice Singh

and

Lady Justice Elisabeth Laing

Case No: A2/2021/0091

Between:
Stephen Sullivan
Appellant
and
Bury Street Capital Limited
Respondent

Christopher Milsom (instructed by Brahams Dutt Badrick French LLP) for the Appellant

Michael Lee (instructed by Ward Bolton) for the Respondent

Hearing date: 19 October 2021

Approved Judgment

Lord Justice Singh

Introduction

1

Mr Sullivan, the Appellant and originally the Claimant in these proceedings, contends that the Employment Tribunal (“ET”) erred in finding (1) that he did not have a disability within the meaning of the Equality Act 2010 (“the 2010 Act”); and (2) that Bury Street Capital Limited (“BSC”), the Respondent, did not have actual or constructive knowledge of his disability.

2

He failed in his appeal to the Employment Appeal Tribunal (“EAT”), which granted permission to appeal to this Court. It is common ground that, although this is an appeal against the decision of the EAT, in substance the issue for this Court is whether the decision of the ET was wrong in law.

3

We were assisted by detailed skeleton arguments and oral submissions by Mr Christopher Milsom for the Appellant and Mr Michael Lee for the Respondent, for which I express our gratitude.

Factual Background

4

On 8 September 2009, Mr Sullivan commenced employment as a Senior Sales Executive with BSC, a boutique capital-raising and advisory firm with around six employees at any one time. The firm raises money from (usually) European and Middle Eastern institutional investors for mainly US-based hedge fund managers who are its clients. Mr Sullivan's appointment started seven days before Lehman Brothers filed for bankruptcy protection in the USA at what was the beginning of a global financial crisis, which led to significant turmoil in the financial markets for a number of years. The calculation of Mr Sullivan's remuneration was complex and comprised a base salary and higher commission payments related to performance. The exact formula changed during the course of his employment and was under review at the time of his dismissal. By way of example, Mr Sullivan's gross remuneration varied from £31,514 during the peak of the financial crisis in 2009/2010 to a high of £629,941 in 2015/2016.

5

Between March and May 2013, Mr Sullivan had a personal relationship with a Ukrainian woman. After this relationship ended, he became convinced that he was being continually monitored and followed by a gang of Russian nationals connected to this woman. Mr Sullivan maintained the truth of these convictions over a number of years, including in his witness statement. He installed CCTV at his home, changed his lock and was nervous about using communications technology in all aspects of his life. For example, he changed his email address on at least ten occasions and, on some evenings, would not go home and instead booked into hotels in central London. However, these feelings were found to be paranoid delusions and the product of a potential persistent delusional disorder. Dr Jan Wise, a consultant psychiatrist, who was jointly instructed by the parties in 2018, noted in his report that Mr Sullivan had had no psychiatric history prior to 2013 and described how he was suffering from abnormal thoughts, namely persecutory delusions of being followed in person and in the digital world. The issue in this case was whether the impact of this delusional disorder was such that at any material time it constituted a disability within the meaning of section 6 of the 2010 Act.

6

The ET concluded that, between May and September 2013, there was a “substantial adverse effect” (“SAE”) on Mr Sullivan's ability to carry out the normal day-to-day activities of sleeping and social interactions as a result of his delusional beliefs. The delusions affected Mr Sullivan's timekeeping, attendance at work and record-keeping. However, the ET also found that these aspects of his performance had been matters of concern for Mr Drake (the chief executive) at times even prior to 2013.

7

In February 2014, Mr Sullivan consulted a doctor, Dr Hopley, about his beliefs relating to the gang. Between May and September 2014, Mr Sullivan attended seven consultation sessions with Ms Louise Watson, a chartered clinical psychologist, with the final session on 11 September 2014.

8

The ET concluded that, between April and July 2017, there was again a SAE (some 3 1/2 years after the first period).

9

Two months later, on 7 September 2017, Mr Sullivan attended a GP appointment in relation to his condition. The following day, 8 September 2017, BSC terminated Mr Sullivan's employment after eight years' service on the grounds of his lacking the skillset to fulfil his role effectively and his attitude. The issues with capability raised at this point included Mr Sullivan's timekeeping, lack of communication, unauthorised absences and poor record-keeping. The ET found that it was the news from Mr Sullivan that he was to stay out of the office for four weeks on the advice of his GP that caused Mr Drake to terminate the employment.

10

On 18 February 2018, Mr Sullivan presented his claim form in the ET (ET1), in which he claimed unfair dismissal, discrimination arising from disability, indirect disability discrimination, failure to make reasonable adjustments and unlawful deduction of wages. On 11 April 2018, BSC presented their response form (ET3) with their grounds of resistance against all complaints.

11

Following a hearing lasting nine days, and after two days of deliberations, from 12–22 November 2018, before EJ Glennie sitting with lay members, the ET gave an oral judgment, with written reasons sent to the parties on 14 May 2019.

12

On 16 December 2019, Choudhury J (President) granted permission to appeal to the EAT on the grounds that the ET had erred in:

(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.

13

Following a remote hearing on 21 July 2020, the EAT handed down judgment on 9 September 2020, dismissing the appeal. The EAT also granted permission to appeal to this Court in an order made on 6 October 2020. The Grounds of Appeal were then finalised and filed with this Court on 23 October 2020.

The judgment of the ET

14

Before the ET Mr Sullivan's claim for unfair dismissal succeeded because the dismissal was procedurally unfair. The ET also found that, if a fair procedure had been followed, Mr Sullivan would have been dismissed by 13 March 2018. The other claims, those made under the 2010 Act (which are the subject of the present appeal) and that for unlawful deduction of wages, were dismissed.

15

The ET addressed the issue of whether the Appellant had a disability at paras. 88–107 of its judgment.

16

At para. 88, the ET said that the relevant period was from August 2013 to the date of the decision to terminate the Claimant's employment, 8 September 2017.

17

At para. 92, the ET referred to the decision of the House of Lords in SCA Packaging Limited v Boyle [2009] UKHL 37; [2009] ICR 1056. It directed itself, in accordance with that decision, that the word “likely” in the present context means something that could well occur, as opposed to something that is more likely than not to happen.

18

The ET then considered the evidence before it, including that from the Claimant himself and from Dr Wise.

19

At paras. 95–97, the ET said:

“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.”

20

At para. 98, the ET concluded that the substantial effect on the Appellant's ability to carry out normal day-to-day activities did not, at this stage in 2013, continue beyond September 2013. It set out its reasons in the following sub-paragraphs:

“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...

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