Disability Discrimination and Ill Health Procedures

Was the poor handling of ill-health retirement discrimination?

In a recent case decided by the Court of Appeal an employer’s handling of the ill-health retirement process was scrutinised and reviewed when the employee in question alleged disability discrimination. The case is Dunn v Secretary of State for Justice and Anor.

The Law

In accordance with the Equality Act 2010 it is unlawful to discriminate as a result of someone’s disability.

In particular an employee has protection from Direct Discrimination, which is where: “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.” Section 13 Equality Act 2010.

And from discrimination arising from disability: “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.” Section 15 Equality Act 2010.

For an employee to succeed with a claim for discrimination under section 13 or under section 15 they have to ‘have been treated in the manner complained of because of either (under section 13) his or her disability or (under section 15) the “something” which arises in consequence of that disability.’

This means that to succeed with a claim the Employment Tribunal or Court must be satisfied that disability or the consequences of the disability, were on the mind of the employer when making the decision or taking action. It therefore means that the Employment Tribunal or Court must be satisfied that it was part of the Employer’s ‘conscious or unconscious “mental processes”.

The Facts

Mr Dunn was employed by the Ministry of Justice from 22 November 2010 as a prison inspector. In 2012 Mr Dunn suffered from a depressive illness and in 2015 was diagnosed with a serious heart condition.

In November 2014 Mr Dunn completed an application for early ill-health retirement as a result of his depression. After submitting his application there was a substantial delay in processing it and eventually Mr Dunn submitted a grievance about the delay.

In July 2015 he was given an ill-health retirement estimate however the estimate contained incorrect information. Eventually after further delay Mr Dunn was issued with a final decision on the 21st December 2015 which permitted him to retire on ill-health grounds.

Mr Dunn’s line manager and other managers involved in the process acknowledged the delay and were concerned about the length of time it was taking.

Mr Dunn made complaints to the Employment Tribunal for Discrimination and Harassment.

At the Employment Tribunal his claim for harassment and 13 of his 16 disability discrimination complaints did not succeed, however the Employment Tribunal agreed with 3 complaints and he was awarded compensation in the region of £100,000.

The three complaints which succeeded were:

1. ‘that the Employer failed to react adequately to the recommendations of the occupational health report of May 2014. No stress risk assessment or weekly reviews were undertaken, and there were no regular meetings. The Employment Tribunal found that this failure was not directly discriminatory but that it did constitute section 15 discrimination.’

2. ‘that the Employer failed to put any support mechanisms in place for Mr Dunn at his return to work interview in May 2014. The Employment Tribunal found these failures to constitute both direct and section 15 discrimination.’

3. ‘the handling of Mr Dunn’s early retirement application. More specifically, “unreasonably delaying the Claimant’s application for ill-health retirement made in November 2014 and failing to consider the Claimant’s ten years’ service up to August 2001 when calculating the pension due.” The Employment Tribunal found that this constituted both direct and section 15 discrimination.

The Ministry of Justice appealed, and the Employment Appeal Tribunal agreed with their appeal dismissing the 3 complaints that had been successful at the Employment Tribunal.

Mr Dunn therefore appealed to the Court of Appeal

The Decision

The Court of Appeal decided that the Employment Appeal Tribunal had been correct.

In order for Mr Dunn’s claims to succeed it was necessary to show that there was some discriminatory motivation on the part of his Employer. There was also no evidence that justified an inference of discriminatory motivation. Whilst the process was clearly flawed and there was a defective system of administrating ill health retirement this was not because of disability and there was no discriminatory motivation. Therefore, the claims under the Equality Act could not succeed.

In particular in the judgement it states:
“In the context of direct discrimination, if a claimant cannot show a discriminatory motivation on the part of a relevant decision-maker he or she can only satisfy the “because of” requirement if the treatment in question is inherently discriminatory, typically as the result of the application of a criterion which necessarily treats (say) men and women differently. In this case, if the ill-health retirement process was inherently defective in the ways found by the Employment Tribunal, it does not follow that it was inherently discriminatory.”

Of the Ministry of Justice processes the Court of Appeal stated “that its ill-health retirement processes, which by definition are applied to people who are to a greater or lesser extent vulnerable, are so, in the ET’s phrase, arcane and unwieldy; and I would endorse the EAT’s recommendation that they be reconsidered. But it does not follow from the fact that they are so deficient that they are also discriminatory.”

Points to note

This is an interesting case in that it illustrates the line between treating an employee poorly because of a flawed process and discriminatory treatment. It is also a good lesson for employers in how not to handle sensitive and difficult situations involving all employees, not just those who are disabled.

Clearly there was no discriminatory motivation or inherent discrimination here, just bad employment practices!

Action to take

1. Review any procedures or process you have which may involve unnecessary bureaucracy or delay for employees;

2. Ensure that managers and supervisors have some training about the Equality Act;

3. Consider having a dedicated person who understands and is trained with regards to disability in the workplace;

4. Avoid delay with any employee process as it only contributes to stress and anxiety for all involved;

5. Seek advice about any situation you are unsure about.

Case Reference

Dunn v The Secretary of State for Justice & HM Inspectorate of Prisons – Court of Appeal

Please feel free to leave a comment, question or observation below. Alternatively get in touch directly: hello@realemploymentlawadvice.co.uk

This article was written and researched by Alison Colley, Solicitor and Director at Real Employment Law Advice.

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The information contained in this blog post is provided for guidance and is a snapshot of the law at the time it is written. It is provided for your information only and should not be used as a substitute for obtaining legal advice that it specific to your particular circumstances.

The guidance should not be relied upon in any decision making process. It is strongly recommended that you seek advice before taking action.

 

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