Dunn v Secretary of State for Justice

The Court of Appeal dismissed the appellant's challenge to the Employment Appeal Tribunal's decision which had found that the Employment Tribunal's (ET) findings of direct discrimination and discrimination arising from disability were legally flawed. The ET had found three detriments proved (failures to implement occupational health recommendations; failure to put support in place at return-to-work; and delay and errors in the ill‑health retirement process) relying on section 13 and section 15 of the Equality Act 2010 and the statutory burden of proof under section 136. The EAT held the ET had failed to examine the mental processes of relevant decision‑makers and had not made comparative findings required for direct discrimination; accordingly the EAT concluded no prima facie case was established and substituted a finding of no unlawful discrimination rather than remitting for rehearing. The Court of Appeal upheld that approach, rejecting the appellant's submission that remittal was required.

The appellant was employed as a prison inspector and developed depressive illness and later a serious heart condition. He applied for early ill‑health retirement and complained of multiple acts of discriminatory treatment and harassment by his employer in the Employment Tribunal. The ET dismissed the harassment claim but found three complaints of discrimination proved and awarded compensation at remedy. The respondent appealed to the Employment Appeal Tribunal (EAT), which concluded the ET's reasoning was legally flawed because the ET had not addressed whether the disability (or something arising from it) operated on the minds of the relevant decision‑makers and had not carried out the necessary comparative analysis for direct discrimination. The EAT therefore held there was no prima facie case and substituted a finding of no discrimination rather than remitting for rehearing.

Nature of the application: Appeal by the claimant against the EAT's decision to dismiss three discrimination findings and to substitute findings of no unlawful discrimination rather than remitting to the ET.

Issues framed by the court:

• Whether the ET erred in law by failing to examine the motivations or mental processes of the relevant decision‑makers in reaching findings of direct discrimination and discrimination arising from disability.
• Whether, if the ET erred, the EAT should have remitted the contentious complaints for rehearing or was entitled to substitute findings of no unlawful discrimination because only one outcome was possible.
• Whether the appellant could advance before the Court of Appeal a new argument that the defective ill‑health retirement system was in itself discriminatory (a point not argued below).

Court's reasoning: The Court of Appeal agreed with the EAT that the ET had not engaged with the conscious or unconscious thought processes of those alleged to have discriminated and had not made comparative findings necessary for a direct discrimination claim. The EAT had carefully considered whether, on the existing evidence and findings, any properly directed tribunal could reach a different conclusion; it concluded there was no realistic prospect of success and was therefore entitled to substitute findings of no unlawful discrimination rather than remit. The Court also declined to admit a new argument, advanced on appeal, that the systemic defects in the ill‑health retirement process were inherently discriminatory because that point had not been advanced in the ET or EAT and would have required further evidence and argument on justification. The court endorsed the EAT's cautious (but ultimately negative) comment about systemic failings and recommended that the Ministry of Justice reconsider its ill‑health retirement processes.

Appeal dismissed. The Court of Appeal agreed with the Employment Appeal Tribunal that the Employment Tribunal had failed to examine the mental processes of the relevant decision‑makers and had not made the necessary comparative findings for direct discrimination; on the material before it there was no prima facie case that disability or something arising from it caused the impugned treatment, and the EAT was therefore justified in substituting findings of no unlawful discrimination rather than remitting for rehearing. The Court also refused to admit a new systemic‑discrimination argument raised only on appeal.

Employment Tribunal (Judgment and Reasons sent 17 May 2016): harassment dismissed; 13 complaints dismissed and 3 discrimination complaints allowed; remedy awarded (compensation ~£100,000). Employment Appeal Tribunal, Simler P (16 March 2017): held ET erred in law in its reasoning on the three complaints, concluded no prima facie case and substituted findings of no discrimination (no remittal). Court of Appeal (04 September 2018) dismissed the appellant's appeal against the EAT decision ([2018] EWCA Civ 1998).