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In the case of Dr Peter Dunn v The Secretary of State for Justice and HMIP [2018] EWCA Civ 1998, the Court of Appeal upheld the decision of the Employment Appeal Tribunal (“the EAT”) that an employee had not been discriminated against by virtue of the fact that his employer’s ill-health retirement procedure was unnecessarily bureaucratic.

The facts in Dr Peter Dunn v The Secretary of State for Justice and HMIP

Dr Dunn was employed by the Secretary of State for Justice (“the Secretary of State”) from November 2010 as a prison inspector.  From late 2012 he suffered a depressive illness and had his first sickness absence due to depression in 2014.  In the middle of 2015 he was diagnosed with a serious heart condition.  His line manager was a Ms Asfar. Whilst she took his illness seriously, she found his case difficult to manage.  In November 2014 Dr Dunn completed an application for ill-health retirement. The process for dealing with his application was elaborate and bureaucratic and there was a long delay in dealing with it. Mr Dunn raised a grievance about the delay and in December 2015 the decision was finally made to allow Dr Dunn to retire on ill health grounds.

Dr Dunn brought proceedings in the Employment Tribunal (the “ET”) for disability discrimination and harassment arising out of the way he was treated by the Secretary of State in relation to his illnesses.  Dr Dunn identified 16 different complaints.  The Secretary of State never disputed that Dr Dunn’s application was badly handled, but they did deny that their actions or omissions constituted disability discrimination.

The relevant law

Section 13(1) of the Equality Act 2010 (the “2010 Act”) states that: “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others” Disability is a protected characteristic and this is known as “Direct Discrimination”.

Section 15 (1) of the 2010 Act states that: “A person (A) discriminates against a disabled person (B) if (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.” This is known as ‘Discrimination arising from Disability’.

Of particular importance here in establishing Direct Discrimination and Discrimination arising from Disability is the employer’s “motivation” e.g. what operated on their conscious or unconscious thought processes at the time of the act or omission the employee is alleging is discriminatory.  This is because it is necessary to show that A treated B less favourably ‘because of’ the protected characteristic for Direct Discrimination or “something” which arises in consequence of the disability for Discrimination arising from Disability.

Lastly, section 136 of the 2010 Act states that where there are facts from which a court could decide, in the absence of any other explanation, that the employer contravened section 13 or 15 of the 2010 Act, the court must hold the contravention occurred, unless the employer can show otherwise.  As a result, it is for the employer to show that discrimination did not occur where the employee establishes a prima facie case.

The decision of the Employment Tribunal

In May 2016 the ET dismissed Dr Dunn’s claim of harassment.  With regard to his 16 individual complaints of discrimination, only 3 were upheld, but they were substantial and Dr Dunn was awarded compensation of about £100,000 at the remedy hearing.

The ET found that Dr Dunn had suffered a detriment in that Ms Asfar failed to react adequately to the recommendations contained within an occupational health report obtained in May 2014.  The ET found this constituted Discrimination arising from Disability.

Ms Asfar’s failure to put into place any support mechanisms for Dr Dunn upon his return to work in May 2014 was held to constitute both Direct Discrimination and Discrimination arising from Disability, even though it was not put to Ms Asfar that her failure to make any reasonable adjustments was by reason of Dr Dunn’s disability.  The ET found here that an inference could be drawn which shifted the burden of proof to the Secretary of State to show that their failure to make the reasonable adjustment was not due to Dr Dunn’s disability.  The ET held that the Secretary of State failed to discharge that burden.

The third detriment related to the handling of Dr Dunn’s early retirement application.  The ET found that the unreasonable delay in dealing with it constituted both Direct Discrimination and Discrimination arising from Disability.

The Secretary of State appealed to the Employment Appeal Tribunal (the “EAT”).

The decision of the Employment Appeal Tribunal

In March 2017 the EAT held that the ET’s reasoning with regards to the three successful complaints was flawed.

The EAT found that the ET had failed to consider the motivations of the relevant decision makers when considering Dr Dunn’s claims, and that there weren’t any findings that others who were not disabled would not have been treated in the same way.  They also found that the failures on the part of Ms Asfar were due to her incompetence, rather than any discriminatory reason.

The EAT held that if the correct approach had been taken by the ET the three complaints that were upheld would not have succeeded.  Accordingly, they went on to dismiss them without a remittal back to the ET.  They did this because they found nothing in the findings of fact or evidence that could lead a properly directed ET to reach the conclusion that there was a prima facie case of Direct Discrimination or Discrimination arising from Disability.  Dr Dunn appealed this decision to the Court of Appeal.

The decision of the Court of Appeal (CA)

The Court of Appeal dismissed the appeal. They found that Dr Dunn had failed to show a discriminatory motivation on the part of a relevant decision-makers and that the matters he had relied on in front of the ET were incapable in law of forming the basis for an inference of discrimination.  Just because the ill-health retirement procedure was inherently defective in the ways found by the ET, it did not follow that it was inherently discriminatory as well.

Our solicitors’ views on the case of Dr Peter Dunn v The Secretary of State for Justice and HMIP

Sacha Barrett, an associate in the employment department at Redmans, made the following comment on the case: “This case demonstrates that the EAT will take the rare step of substituting their findings rather than remit a case back to the ET where, in their view, the only possible outcome is a finding of no discrimination based on the evidence”.

The decision of the Court of Appeal in  Dr Peter Dunn v The Secretary of State for Justice and HMIP [2018] EWCA Civ 1998 can be found here.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

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