Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
The claimant worked as a sales executive for the respondent since 2009. In his personal life he had a relationship breakdown in 2013 and this led to paranoid delusions. Most notably this concerned being stalked by a Russian Gang which were connected to his former partner. He had sought medical advice, yet his condition worsened and he was signed off work on sick leave on 7th September 2017. The next day he was dismissed on the basis of capability with the respondent outlining that the claimant had poor timekeeping and record-keeping, as well as unauthorised absences.
The claimant subsequently brought a claim for unfair dismissal and disability discrimination. The unfair dismissal case was successful but the disability discrimination case (which was subject to appeal here) was unsuccessful. The basis for the refusal of the claim was the fact that the Claimant could not establish he had a disability under the requirements in the Equality Act 2010 (would be Disability Discrimination Act 1995 in Northern Ireland). This was because the Tribunal made a finding that his condition only had a substantial effect for 4-5 months in 2013 and for 3-4 months in 2017, falling below the requirement for 12 months under the legislation. In the alternative, the Tribunal found that the disability discrimination case would not have succeeded even if he was categorised as disabled as the employer did not have knowledge of it.
The Court of Appeal rejected the appeal. They stated that when it comes to the ‘substantial adverse effect’ as required for disability that it entirely depended on the facts of a particular case. The issue for an error of law went to the questions asked by the Tribunal and Court noted that the relevant questions had been asked. One interesting issue that did arise was the fact that the Tribunal did not make reference to the guidance relating to recurring or fluctuating matters. However, the Court of Appeal stated that the Tribunal did not err in law here, especially considering that the claimant, who was represented by Counsel, did not raise that aspect of the guidance.
On the point of the Tribunal finding that there was not a recurring condition the Tribunal stated that there had been no change between the 1995 Act and the 2010 Act when it came to the facts in the present case. It also outlined that the Equality Act 2010 was not a consolidating statute and may be regarded as changing the law on particular areas which may seem similar to previous statutes (such as the 1995 Act). The issue was whether the condition was ‘likely to recur’ and it was held that it seemed to be based upon ‘triggering events’ which may not be regarded as ‘likely’. As a result, the appeal was dismissed.
Practical Lessons
It may seem odd that having paranoid delusions about a Russian Gang would not constitute a disability under the statute, but this case does outline the need for the elements of a disability to be satisfied. The 12-month period in this context has to be shown. It is interesting that the Court of Appeal have outlined that the Equality Act 2010 in England and Wales is not a consolidating piece of legislation, and that Parliament may be treated to have changed the law. This was always likely to be the case, but it may lead to greater divergence between the position in Northern Ireland (governed by the 1995 Act) and the position in England and Wales.
https://www.bailii.org/ew/cases/EWCA/Civ/2021/1694.html
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