In the case of Dunn v Secretary of State for Justice and anor, the Court of Appeal has held that the Respondent’s procedure for determining an employee’s application for early retirement on ill-health grounds which involved unreasonable delay was inherently defective but not inherently discriminatory.
The Claimant, Mr Dunn was employed by the Respondent as a prison inspector. He suffered from depression and was also diagnosed with a serious heart condition, and therefore applied for early retirement on ill-health grounds.
The procedure used by the Respondent to determine the Claimant’s ill-health retirement application consisted of unnecessary bureaucratic processes which led to a substantial delay. As a result, the Claimant brought proceedings in the Employment Tribunal for direct disability discrimination and discrimination arising from a disability under the Equality Act 2010.
The Employment Tribunal dismissed thirteen of the Claimant’s complaints but allowed three. The Respondent appealed to the Employment Appeal Tribunal (EAT), where it was held that the Employment Tribunal’s reasoning with regard to the three complaints on which the Claimant succeeded was flawed.
The Claimant appealed the EAT’s decision, however, the Court of Appeal dismissed the appeal and agreed with the EAT that the Employment Tribunal’s decision was flawed.
The Court of Appeal stated that with regard to the direct discrimination claim, the Employment Tribunal had given no consideration to the motivations of the relevant decision makers. In other words, the Employment Tribunal had not considered whether the Claimant’s disability had operated on the Respondent’s mind.
In addition, the Court of Appeal held that if a Claimant cannot show a discriminatory motivation on the part of a relevant decision-maker then the Claimant can only demonstrate direct discrimination if the treatment in question is “inherently discriminatory” which was not the case here.
This decision highlights that although a procedure used by an employer may be inherently defective it does not automatically follow that such a procedure is also discriminatory.
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