Former London capital firm employee who thought Russian gang was following him loses appeal against finding that he did not have disability

Stephen Sullivan was employed by Bury Street Capital Ltd, a small capital-raising and advisory firm, between 2009 and 2017. He argued that the Employment Tribunal had erred in finding that he did not have a disability within the meaning of the Equality Act 2010 and that his employer did not have constructive knowledge of his disability.

The appeal was heard in the Court of Appeal by Lord Justice Jackson, Lord Justice Singh, and Lady Justice Laing. Christopher Milsom appeared for the appellant and Michael Lee for the respondent.

Substantial adverse effect

The appellant’s case was that, between March and May 2013, he had been in a relationship with a Ukrainian woman. After this relationship ended, he started to believe that he was being monitored and followed by a Russian gang connected to the woman. As a result of this belief, he installed CCTV at his home, became nervous about using the same email address for long periods of time, and on some evenings booked himself into a hotel in central London rather than return home.

After a psychiatric evaluation, it was concluded that the appellant’s feelings were the result of a potential persistent delusional disorder, and that there had been a substantial adverse effect (SAE) on his ability to carry out normal activities, including effects on his work performance. The appellant’s employment was terminated on 8 September 2017, one day after he attended a GP appointment relating to his condition, on the grounds that he lacked the skillset and attitude to fulfil his role effectively.

In February 2018, the appellant raised a claim of unfair dismissal and discrimination based on disability before the ET, where he contested all complaints. The ET found that his dismissal had been procedurally unfair, and that if proper procedure had been followed, he would have been dismissed in March 2018. However, the employment judge found that his claim under the 2010 Act failed, as it did not consider it likely that there had been a recurring adverse effect with no likelihood of improvement.

On first appeal to the Employment Appeal Tribunal, the decision of the ET was upheld. Permission was granted for an appeal to the Court of Appeal on the grounds that the ET had erred in finding that there was no SAE throughout the period from 2013 to 2017, or alternatively that the appellant did not have a recurring condition. Further, the ET had erred in finding that the respondent did not have actual or constructive knowledge of the disability.

Point of law

In his opinion, with which the other two judges agreed, Lord Justice Singh began by noting: “In my view the answer to this appeal is straightforward. It does not raise any points of general principle but was, rather, a decision on its own facts. Although there are three grounds of appeal, with many sub-grounds and numerous further points made in support of those grounds in submissions, in essence the case comes down to whether the ET was entitled to reach the findings of fact which it did.”

He continued: “The fundamental complaint which the appellant has is that he does not agree with [the ET’s] conclusions. That is not a basis for an appeal on a point of law. It is important to recall that an appeal lies from a decision of the ET to the EAT only on a question of law.”

Addressing whether the ET was correct to reach the findings that it did, Singh LJ said: “Although in many instances the fact that [a] SAE has recurred episodically might strongly suggest that a further episode is something that ‘could well happen’, that will not always be the case. Where, as here, the SAE was (in the judgment of the ET) triggered by a particular event that was itself unlikely to continue or to recur, then it is open to the ET to find that it is not likely to recur.”

Turning to the issue of constructive knowledge, he continued: “Again, it seems to me that these are essentially complaints about the findings of fact made by the ET. They go to the weight it should have ascribed to certain aspects of the evidence rather than to the ET’s approach. I do not accept that the ET failed to ask itself the question of constructive knowledge: it expressly referred to what the Respondent could reasonably have been expected to know.”

Singh LJ concluded: “However dressed-up, the present appeal is in substance an attempt to challenge the findings of fact which were made by the ET. There being no perversity challenge (and in my view any such challenge would have failed in any event), I have reached the conclusion that this appeal must be dismissed.”