Good morning and welcome back to your weekly case law update. Last week, we had two cases for you, one on victimisation and another on limitation dates. This week, as autumnal early-onset-SAD kicks in, we only have one case for you; about disability discrimination and ill-health early retirement.
Discrimination, regardless of which protected characteristic is being discriminated against, can be direct, indirect, victimisation or harassment. In a previous case, we discussed how in disability discrimination claims there are at least two additional types of claim that can be bought; Section 15 unfavourable treatment and Section 20 failure to make reasonable adjustments.
This case focuses on Section15, whereby an employer will have been found to have discriminated against an employee if they treat them unfavourably because of something arising in consequence of the employee’s disability, and, the employer cannot show the treatment was a proportionate means to achieve a legitimate aim.
The questions this week are:
Can a poorly handled ill-health early retirement amount to direct discrimination?
Can a poorly handled ill-health early retirement amount to unfavourable treatment?
Mr Dunn, the Claimant, was a prison inspector for the MoJ, overseen by the Secretary of State for Justice, the Respondent. The Claimant suffered from a depressive illness and was also diagnosed with a serious heart condition.
The Claimant applied for ill-health retirement. For a large, bureaucratic organisation like the Respondent, this involved liaising with several internal and external departments, including: HR; finance; occupational health; the pension provider and the pension provider’s occupational health.
There was a delay processing the application and the Claimant raised a grievance about this. When the Claimant was given a retirement benefit estimate it included several errors including length of service. This meant the estimate was lower than what it should have been.
In the meantime, the Claimant’s heart condition had worsened. Further bureaucratic delay meant it took thirteen months for the retirement application to be processed and for the Claimant to be granted early retirement. Throughout the process, the Claimant’s managers expressed regret and sympathy for the delays and admitted the process was poorly handled.
The Claimant was dissatisfied with these delays and initiated ET proceedings for direct discrimination and unfavourable treatment. The ET allowed the claim finding the Claimant had been both directly discriminated against and subjected to unfavourable treatment.
The Respondent appealed and the EAT allowed the appeal, overturning the ET’s decision. The Claimant appealed but the CoA dismissed the appeal. The CoA held that the mindset of the Respondent must be taken into account. In this case, if the ill-health retirement process was inherently defective in the ways found by the ET, it does not follow that it was inherently discriminatory.
The takeaway point:
Similar to the bastard’s defence (I’m not discriminatory because you’re [insert protected characteristic], I’m just a bastard to everyone), this decision suggests there can be no direct discrimination or unfavourable treatment unless there is a causal link between the treatment and the protected characteristic.
An application for ill-health retirement can often be a fairly drawn out process. This judgment establishes that a long drawn out process won’t be discriminatory unless linked to the protected characteristic.