Secretary Of State For Justice & Anor v Dunn

For direct disability discrimination, unreasonable or incompetent treatment does not, without more, permit an inference of less favourable treatment because of disability. Before the burden of proof shifts, the claimant must establish facts capable of supporting both less favourable treatment and disability as a reason for it.

Under section 15, a tribunal must identify the pleaded consequence of disability and determine whether it significantly influenced the decision-maker's treatment. A failure to provide support does not itself establish that the failure was because of the need for support. The tribunal must also determine any pleaded objective-justification defence.

The claimant, a Prisons Inspector with depression and a heart condition, brought disability-discrimination claims arising principally from the handling of his ill-health retirement application and support on his return to work.

The Employment Tribunal dismissed most claims but upheld three allegations under sections 13 and 15 of the Equality Act 2010. It found failures to provide timely adjustments, inadequate return-to-work support, and delay and pension-service errors in the ill-health retirement process.

The respondents appealed. The central questions were whether the Tribunal had a proper evidential basis for direct discrimination, had identified and applied the statutory causal link required by section 15, and had addressed objective justification.

1. Appeal allowed. The Tribunal's findings of direct discrimination and discrimination arising from disability on issues 4.1.2, 4.1.9 and 4.1.10 were set aside. The Appeal Tribunal substituted findings of no unlawful discrimination.

2. For direct discrimination under section 13 of the Equality Act 2010, the burden cannot shift merely because an employer's treatment was unreasonable, poorly managed or incompetent. The claimant had first to establish facts from which the Tribunal could infer both less favourable treatment and that disability was at least part of the reason. The Tribunal identified no primary facts or evidence permitting those inferences. It also failed to undertake a comparative inquiry, whether through a hypothetical comparator or by properly examining why the employer acted as it did.

3. Fairness required the substance of the direct-discrimination allegations to be put to the relevant witnesses. Except for one witness, the allegations and the decision-makers' alleged conscious or unconscious attitudes to disability were not properly explored. In direct-discrimination cases, consideration of the alleged discriminator's mental processes will ordinarily be critical.

4. Section 15 required proof of unfavourable treatment, something arising in consequence of disability, and treatment because of that something, subject to objective justification. The Tribunal either relied on an unpleaded consequence of disability or failed to explain why that consequence significantly influenced the decision-makers. A failure to provide additional support did not logically establish that the failure was caused by the claimant's need for it. The Tribunal also failed entirely to address the pleaded justification defence.

5. Despite concern about serious systemic delay and poor administration, no evidence or finding could support a prima facie case that disability, or a consequence of it, caused the impugned treatment. Remittal would therefore serve no purpose.

• Employment Appeal Tribunal: Allowed the respondents' appeal and substituted findings of no unlawful direct discrimination or discrimination arising from disability.
• Employment Tribunal: By a Judgment with Reasons promulgated on 17 May 2016, dismissed most claims but upheld three allegations of disability discrimination.