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Employment Law Speed Read – 17/09/18

In Dunn v The Secretary of State for Justice & Anor the Court of Appeal dismissed Mr Dunn's appeal and held that a poorly handled ill-health retirement application did not amount to disability discrimination.

Mr Dunn was employed by the Ministry of Justice as a prison inspector from 22 November 2010. Mr Dunn began to suffer from a depressive illness in late 2012, and in the summer of 2015, he developed a serious heart condition.

On 4 November 2014, Mr Dunn completed an application for early ill-health retirement. Due to a combination of various errors, delays and mishandlings, a final decision was not made on the application until 21 December 2015 when Mr Dunn was permitted to retire on ill health grounds.

Following his retirement, Mr Dunn brought proceedings in the Employment Tribunal (ET) for sixteen complaints of disability discrimination and one complaint of harassment. The claims regarded the way in which the ill-health retirement request was handled and the way Mr Dunn was treated by his employer.

Employment Tribunal

The ET dismissed the harassment claim and thirteen of the disability discrimination claims, but ruled in favour of Mr Dunn for the remainder of his discrimination claims.

The ET held that the poor handling of the ill-health retirement application and the failure to provide support mechanisms constituted both direct discrimination and discrimination arising from disability under sections 13 and 15 of the Equality Act 2010 (EA 2010) respectively. Additionally, the ET held that the employer’s failure to provide a stress risk assessment or weekly reviews also constituted discrimination arising from disability. The employer appealed to the Employment Appeal Tribunal (EAT).

Employment Appeal Tribunal

The EAT held that no disability discrimination had been committed by the employer. The EAT held that the ET had failed to examine the motivation of the individuals dealing with Mr Dunn’s application and whether Mr Dunn’s disability had in fact influenced the way they had handled his application.

Further, the EAT held that there was no evidence to suggest that a non-disabled individual would not have been treated in the same way.

Court of Appeal

Mr Dunn appealed to the Court of Appeal (CA). The CA found in favour of the employer and dismissed Mr Dunn’s appeal. The CA held that the EAT had not erred in dismissing Mr Dunn’s claims and affirmed that the ET had incorrectly failed to consider the motivation of the decision makers.  The CA held that a claimant who fails to show a discriminatory motivation can only satisfy the ‘because of’ requirement in section 15 EA 2010, if the treatment was ‘inherently discriminatory’.

The CA explained that although the ill-health retirement process was inherently defective, this did not mean that it was also inherently discriminatory.


This case highlights the importance the Tribunal will place on the decision maker’s motivations when considering disability discrimination complaints under section 15 EA 2010.

Although this case appears to favour the employer, it is noted that the employer’s ill-health retirement procedures were criticised at each stage of the proceedings and the CA issued a recommendation that they ought to be reconsidered.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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