The Court of Appeal has held in the case of Dunn v Secretary of State for Justice and HM Inspectorate of Prisons that just because a claim for ill-health retirement was poorly handled did not automatically mean that it constituted disability discrimination.
Basic facts
Mr Dunn, who started work as a prison inspector in 2010, became ill with depression in late 2012. As a result, he applied for early ill-health retirement In November 2014. This turned out to be a complex process, not least because different aspects of his application had to be assessed by three different contracted-out services.
He was finally given a medical opinion in the spring of 2015, but the situation was complicated further when he was diagnosed with a serious heart condition.
Eventually in July 2015, he was given an estimate of the benefits to which he would be entitled but because of mistakes about his length of service he had to wait another six months before he was finally told he could retire on ill-health grounds.
Mr Dunn lodged 16 different complaints relating to disability discrimination and harassment arising out of the way in which he had been treated.
Relevant law
Section 13 of the Equality Act states that it is discrimination for an employer to treat someone less favourably “because of a protected characteristic” than they treat or would treat others. This is known as direct discrimination.
Section 15 states that it is disability discrimination to treat a disabled person unfavourably “because of something arising in consequence of” their disability and the employer cannot show that the treatment was a “proportionate means of achieving a legitimate aim."
Tribunal and EAT decisions
The tribunal upheld three of his claims – that his manager had failed to react adequately to the recommendations made in an occupational health report in May 2014 (section 15 discrimination); that she had failed to put support mechanisms in place when he returned to work in May 2014 (section 15 and direct discrimination); and that the unreasonable delay in processing his application amounted to both section 15 and direct discrimination.
Allowing the appeal, the EAT held that the tribunal had failed to consider the motivations of Mr Dunn’s managers when dealing with his application. In other words, it had failed to consider whether his disability had “operated on their minds” to cause them to act (or fail to act) in the ways that he alleged. Nor had the tribunal considered whether a non-disabled person would have been treated in the same way.
Rather than remitting the case to the tribunal, the EAT dismissed the claims on the basis that, if it had adopted the correct approach, the complaints would have inevitably failed. Mr Dunn appealed, arguing that the EAT should have remitted his claims to the tribunal for it to consider them again rather than dismiss them itself.
Decision of Court of Appeal
The Court held that that the EAT had correctly focused on whether there was any evidence that might have justified an inference of discriminatory motivation (whether under section 13 or section 15) on the part of those responsible for the system or the way it operated.
This was crucial because if a claimant cannot show a discriminatory motivation on the part of a relevant decision-maker, the only way they can satisfy the "because of" requirement is if the treatment in question is inherently discriminatory. Just because the process in this case was inherently defective, however, did not mean that it was also inherently discriminatory.
It therefore dismissed the appeal.