Tue 02 Oct 2018

Unreasonable ill health early retirement process is not disability discrimination

A recent case confirms the need for a causal link between less favourable treatment and a person's disability before discrimination can be established.

In Dunn v Secretary of State for Justice and Anor the Court of Appeal has agreed with the EAT that an unreasonable delay due to "arcane and unwieldy" procedures did not amount to either discrimination arising from disability or direct discrimination. 

Two years after starting work as a prison inspector Mr Dunn developed a depressive illness and three years after that he was also diagnosed with a serious heart condition.  He took early retirement on ill health grounds a short time later, having completed 5 years' service.

Mr Dunn brought disability discrimination and harassment claims arising from the way in which he was treated by the respondent in relation to his illnesses, identifying 16 different complaints.  The Employment Tribunal (ET) dismissed the claim of harassment and thirteen of the discrimination complaints.  The three complaints that were upheld related to Mr Dunn's line manager failing to react adequately to an occupational health recommendation to undertake a stress risk assessment  and weekly reviews, failing to put support mechanisms in place and the early retirement application being unreasonably delayed.  He was awarded £100,000 in compensation.

On appeal to the Employment Appeal Tribunal (EAT) it was held that the ET's reasoning as regards the three successful complaints was flawed. Although the ill health retirement process was operated unreasonably and perhaps even unfairly there were a number of reasons that explained this, none of which involved unlawful discrimination.  There were no facts upon which it could be concluded that less favourable treatment on disability grounds or unfavourable treatment caused by something arising in consequence of disability had arisen.

Usually, when the EAT finds an error in the judgement of an ET, the case is remitted back to the ET to reconsider.  However, in this case the EAT concluded that, had the correct legal approach been taken by the ET, the claims would have been bound to fail.  As such, this was one of the rare occasions when it was appropriate for the EAT to substitute a finding of no discrimination without the need to remit the case back to the ET.

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