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Can a deficient process amount to disability discrimination?

The Court of Appeal in the case of Dunn v The Secretary of State for Justice /HM Inspectorate for Prisons has held that the use of “an arcane and unwieldy” ill health retirement process did not amount to disability discrimination.

Background

The Claimant suffered from a depressive illness and serious heart condition that amounted to a disability. He applied for ill health retirement but due to the poor procedure and poor handling, it was over a year before he was able to retire.

The Claimant brought claims for disability discrimination which related to the way he had been treated by his employer throughout the process.

Employment Tribunal Decision

The Employment Tribunal allowed three of the Claimant’s sixteen complaints and he was awarded £100,000 in compensation. The upheld complaints included:

  • The Claimant’s line manger failed to adhere to an occupational health report that had recommended a stress risk assessment and weekly reviews. The Employment Tribunal found that this constituted discrimination arising from disability.
  • The Claimant’s line manager had failed to put support mechanisms in place. The Employment Tribunal held that this amounted to direct discrimination and discrimination arising from disability.
  • The Claimant’s early retirement application was unreasonably delayed. It was held that this amounted to direct discrimination and discrimination arising from disability.

The employer appealed.

The Law

Direct disability discrimination occurs when a person treats another less favourably because of a disability.

Discrimination arising from disability occurs when a person (A) treats another (B) less favourably because of something arising in consequence of B’s disability.

Appeal Decisions

The Employment Appeal Tribunal (“EAT”) allowed the employer’s appeal.

It held that the Employment Tribunal had given no consideration as to the motivations of the decision makers. The EAT accepted that the Claimant had been treated unreasonably but the Employment Tribunal had failed to consider whether the Claimant’s disability or something arising in consequence of his disability had caused the employer to act or fail to act as it did. The EAT also held that the Employment Tribunal should have considered whether others who were not disabled would have been treated in the same way.

The EAT did not remit the case to another tribunal to consider the case and instead, substituted a finding of “no discrimination” on the basis that there was nothing in the evidence that could allow a tribunal to conclude that the Claimant had been treated less favourably than others because of his disability or something arising in consequence of his disability.

The Court of Appeal dismissed the Claimant’s appeal. It stated that the “arcane and unwieldy” ill health retirement process should be reconsidered but that it did not follow that the process was so deficient that it was also discriminatory.

Comment

A poorly handled procedure will not usually amount to discrimination unless it can be linked to a Protected Characteristic (in this case, disability). However, all employment procedures should be clear as poor processes may be more likely to lead to claims if an employee feels disgruntled.

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