Dunn v The Secretary of State for Justice & Anor

Unreasonable treatment, administrative incompetence and a defective process do not by themselves establish disability discrimination. Under sections 13 and 15 of the Equality Act 2010, the claimant must ordinarily show that disability, or something arising from it, influenced the relevant decision-maker’s conscious or unconscious thought processes. The causal reason need not be the sole reason, but it must be significant or more than trivial.

Where an Employment Tribunal’s findings are vitiated by legal error, an appellate court must remit the case unless a properly directed tribunal could reach only one conclusion. It may substitute a dismissal where the evidence and findings cannot establish a prima facie case of discrimination. A party will not ordinarily obtain a remittal in order to advance a new case requiring factual investigation and possible justification evidence.

The appellant, a prison inspector employed by the Ministry of Justice, had depression and later a serious heart condition. He alleged disability discrimination and harassment arising from the handling of his return to work and his application for ill-health retirement.

An Employment Tribunal dismissed the harassment claim and most discrimination complaints, but upheld three complaints and later awarded about £100,000 compensation. The Employment Appeal Tribunal allowed the respondent’s appeal, holding that the Tribunal had erred in its analysis of direct discrimination and discrimination arising from disability. It substituted findings that the three complaints failed.

The appellant accepted the legal errors but contended that the Employment Appeal Tribunal should have remitted the complaints rather than dismissing them. The central issue was whether a properly directed tribunal could reach any conclusion other than that the impugned treatment was not unlawful discrimination.

1. Appeal dismissed. The Employment Appeal Tribunal was entitled to substitute findings dismissing all three complaints. Remittal is required after an error of law unless only one lawful outcome is open to a properly directed tribunal. On the evidence and findings available, there was no realistic prospect of establishing a prima facie case of either direct discrimination or discrimination arising from disability.
2. For both direct discrimination under section 13 and discrimination arising from disability under section 15 of the Equality Act 2010, the statutory word “because of” ordinarily requires examination of the relevant decision-maker’s conscious or unconscious thought processes. The protected matter need not be the sole cause, and improper motive is irrelevant, but it must be a significant or more than trivial cause of the treatment. The Court applied the approach in R (E) v Governing Body of JFS [2009] UKSC 15.
3. The Tribunal had found failures by the line manager and serious delay in the ill-health retirement process. Those findings showed incompetence, bureaucratic dysfunction and poor management. They did not show that depression, its consequences, or disability-related absence had influenced the responsible individuals. Unreasonable treatment and internal concern about a process could not, without more, shift the burden under section 136 of the Equality Act 2010.
4. The appellant’s proposed section 15 case based on systemic defects in the retirement process was a new argument. It had not been pleaded or advanced before either lower tribunal, which had addressed only alleged discriminatory motivation by particular staff. The Court declined to permit that argument to found a remittal, since it might require further evidence, including evidence of justification, and could not properly be determined for the first time on appeal.
5. Obiter, the Court expressed doubt that “because of” bears a materially different meaning in sections 13 and 15. A process is not inherently discriminatory merely because a disabled person has occasion to use it. The Court did not finally determine that issue, particularly because it had not received full argument and the pending appeal in Williams might have a tangential bearing.

The Court nevertheless endorsed the criticism of the Ministry of Justice’s ill-health retirement process. Its deficiencies did not, however, establish unlawful discrimination in this case.

1. Court of Appeal (Civil Division): Dismissed the claimant’s appeal in [2018] EWCA Civ 1998. It upheld the Employment Appeal Tribunal’s substitution of findings dismissing the three successful discrimination complaints.
2. Employment Appeal Tribunal: By a judgment dated 16 March 2017, allowed the respondent’s appeal. It held that the Employment Tribunal’s reasoning on direct discrimination and discrimination arising from disability was legally flawed and substituted dismissals without remittal.
3. Employment Tribunal: By judgment sent on 17 May 2016, dismissed the harassment claim and most discrimination complaints, but upheld three discrimination complaints. At a subsequent remedy hearing it awarded compensation of about £100,000.