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Does a defective ill-health retirement process amount to disability discrimination?

The recent Court of Appeal case of Dunn v Secretary of State for Justice and anor confirmed that a flawed ill-health retirement process will not by itself amount to disability discrimination.

The facts

Mr Dunn was employed as a prison inspector from November 2010. During the course of his employment he suffered a depressive illness and was diagnosed with a serious heart condition. This caused Mr Dunn to apply for ill-health retirement in November 2014.

Various mistakes were made during the retirement consultation process and the final decision was significantly delayed, all of which was admitted by Mr Dunn's employer.

Eventually Mr Dunn was allowed to retire early on the  grounds of ill health, however he was disgruntled by the process and sought to bring claims for harassment and discrimination.

The Employment Tribunal found in favour of Mr Dunn on 3 out of 16 of his discrimination allegations. However, this decision was overturned by the EAT.

The Court of Appeal ruling

The Court of Appeal upheld the EAT decision, confirming that direct discrimination cannot be established without discriminatory motivations. In this case Mr Dunn's disability was not a decisive factor in his employer conducting a flawed retirement process; the process was inherently flawed. 

What does this mean for employees looking to bring claims for direct discrimination?

This case emphasises that it is necessary to establish a causal link between an employee's protected characteristic (i.e. disability, age or race), and the actions of their employer. If this causal link cannot be established, employees should contemplate whether a claim for indirect discrimination could be successful instead. It was not in Mr Dunn's case: although he did bring a claim for indirect discrimination in the Employment Tribunal, it was dismissed and not appealed to the EAT.

What can be learnt by employers?

Ill-health retirement is a sensitive and difficult situation, which is why it is important to conduct the consultation process with compassion and efficiency. Employers owe a duty of care to their employees, which undoubtedly extends to making sure that procedures and processes are transparent.

Employers should consider training their management teams on how to prevent discrimination. Additionally we advise appointing an individual to be responsible for workforce disabilities. This individual would become the key point of contact for any disability related queries, such as requests for adjustments to the working environment. Creating this role will achieve consistency and accountability, which will in turn increase the trust and confidence of employees.

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