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This article was published on October 17th, 2018
Is it disability discrimination if an employer deals with an ill health retirement procedure badly? Not necessarily, the Court of Appeal has said. Mr Dunn was employed by the Ministry of Justice. He had depression and a serious heart condition. He applied for ill-health early retirement. The process was handled badly and was unnecessarily bureaucratic. But was this poor treatment because of his disability (direct discrimination) or something arising in consequence of it (discrimination arising from disability)? The employment tribunal said yes, but the Employment Appeal Tribunal disagreed.
The Court of Appeal agreed with the EAT. The employee was treated unreasonably. But unreasonable treatment does not always mean discrimination. The employment tribunal had failed to look at why Mr Dunn was treated badly, or how his employer would have treated someone without his disability. The employment tribunal had found many reasons for the unreasonable process: the system was arcane and cumbersome; cases were not properly managed; no single person had oversight of the whole process, and the system involved three different contracted out services. None of those reasons involved discrimination of any kind. The tribunal was wrong to uphold the employee’s discrimination claims.
If an employee is unable to show that their treatment was motivated by discrimination, the only way they can show that their treatment is ‘because of’ their disability is by showing the process is inherently discriminatory. This means the criteria applied (in this case, the ill health retirement process) necessarily treats disabled people less favourably than those without disabilities. This argument was not used by the employee in this case, but the Court of Appeal indicated it was unlikely to be successful anyway. A process which is inherently defective is not necessarily inherently discriminatory.
The employer in this case won the case but still came in for some harsh criticism in open court. Employers should scrutinise their internal processes, especially those which are likely to involve ill or disabled employees.