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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Dunn v The Secretary of State for Justice & Anor  EWCA Civ 1998 (04 September 2018)
Cite as:  EWCA Civ 1998,  IRLR 298
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ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
(Vice-President of the Court of Appeal (Civil Division))
LORD JUSTICE HOLROYDE
| DR PETER DUNN
|- and -
|(1) THE SECRETARY OF STATE FOR JUSTICE
(2) HM INSPECTORATE OF PRISONS
Mr Tom Kirk (instructed by the Treasury Solicitor) for the Respondents
Hearing date: 2nd May 2018
Crown Copyright ©
"On 18 November Lesley Young, an employee of MoJ who acted as Head of Finance for HMIP, submitted [the application form] to a private company called Shared Services Connected Ltd ('SSC'). SSC dealt with transactional Human Resource issues, in other words, pay, pension, ill-health etc. The process was that SSC would forward the application for medical retirement to an organisation called Occupational Health Assist ('OH Assist', previously ATOS) who were Occupational Health advisors for MoJ. They in turn referred the application to an organisation called Health Assured Ltd, who are the pension scheme medical advisors. They are separate from another set of administrators of the Civil Service Pension Schemes, known as My CSP Ltd. Health Assured Ltd are the arbiters of whether an individual does or does not fulfil the ill-health retirement criteria, and it is they who make recommendations to My CSP Ltd in this regard."
"Overall it is clear from looking into the matters relating to your case that our process has failed to appropriately manage the filing of your referral papers, as well as keep you informed and updated on both the management of your referral and your complaint or manage your expectations on the sometimes lengthy processes in being supplied with FME [further medical evidence] related to the request for ill health retirement."
As already noted, there were also a number of contemporary expressions of dismay or concern by Ms Afsar and other managers about how long the process was taking.
THE BACKGROUND LAW
"A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."
Disability is a protected characteristic.
"A person (A) discriminates against a disabled person (B) if
(a) A treats B unfavourably because of something arising in consequence of B's disability, and
(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim."
An example sometimes given of the type of situation which section 15 is intended to cover is where an employee is treated unfavourably because his or her written English is poor as a result of dyslexia. The case is not one of direct discrimination because the dyslexia is not as such the reason for the treatment; but because the actual reason is something arising in consequence of the dyslexia it will be unlawful unless it can be justified.
"(1) This section applies to any proceedings relating to a contravention of this Act.
(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
(3) But subsection (2) does not apply if A shows that A did not contravene the provision.
(6) A reference to the court includes a reference to
(a) an employment tribunal;
The effect of the condition in sub-section (2), the satisfaction of which places the burden of proof on the employer, was discussed in this Court in Madarassy v Nomura International Plc  EWCA Civ 33  ICR 867, where Mummery LJ used the shorthand of establishing a "prima facie case".
THE DECISION OF THE EMPLOYMENT TRIBUNAL
"107. There is no evidence from which the Tribunal can infer that these failures were because of Dr Dunn's disability. Rather they were because of incompetence. For that reason, the claim of direct discrimination fails.
108. In relation to the claim of discrimination arising from disability, the disability had the consequence of Dr Dunn not being able to work full time without stress. Therefore, the issue is whether he was treated less favourably by not being able to work full time because of that stress. We are satisfied that that was the case and therefore in relation to 4.1.2 the claim of discrimination arising from disability succeeds."
"115. Ms Afsar did not conduct the stress risk assessment. It was not put to Ms Afsar that the failure to deal with the adjustments was by reason of the disability. She did agree that there were no back-to-back assessments, that there would be no prison inspections, and that there would be regular meetings, although they did not happen. She failed to undertake the stress risk assessment and failed to hold the regular meetings, she did however put in place other things that Dr Dunn asked for. We take into account that if there [is] something from which an inference should be drawn the burden will shift to the Respondents and we should consider whether the Respondents have discharged the burden. We are not satisfied that the Respondents have demonstrated that the failure to put in place adequate support mechanisms was not because of the Claimant's disability. For that reason, the claim of direct discrimination succeeds in relation to issue 4.1.9.
116. In relation to discrimination arising from disability, the disability of depression had the consequence of Dr Dunn needing more support because of his sensitivity, the Respondent did not provide that additional support, and for that reason the claim of discrimination arising from disability succeeds in relation to issue 4.1.9."
"unreasonably delaying the Claimant's application for ill-health retirement made November 2014 and failing to consider the Claimant's ten years' service up to August 2001 when calculating the pension due."
The ET found that this constituted both direct and section 15 discrimination. At paras. 117-118 of the Reasons it said:
"117. There was an unreasonable delay in the application for ill health retirement with no clear explanation for why that delay took place. The Respondents failed to consider his full service. We are satisfied that Dr Dunn was subjected to less favourable treatment by the MoJ . The Ministry of Justice operates an arcane and unwieldy system. There is a lack of proper management of individual cases, no one person oversees the case from beginning to end and there is a requirement to deal with three different contracted out services, all of which rely on different information held on computers in different parts of the organisations. We are satisfied that Dr Dunn was subjected to a detriment and the burden accordingly shifts to the Ministry of Justice. Indeed, the Ministry of Justice have acknowledged the shortcomings of their process in [the letter quoted at para. 13 above].
118. We are satisfied that the Ministry of Justice have failed to discharge the burden on them and we are therefore unanimous that the claim of direct discrimination in relation to this matter succeeds. In relation to the discrimination arising from disability, Dr Dunn required more support and sensitivity because of his depression. The history of the ill health retirement application does not reflect that he was provided with more support and sensitivity. In those circumstances the claim of discrimination arising from disability succeeds against the Ministry of Justice only."
THE DECISION OF THE EMPLOYMENT APPEAL TRIBUNAL
"We specifically invited Mr Bousfield to address this issue in the course of the hearing. In relation to issue 4.1.9 he identified matters that he said justified inferences being drawn in relation to Ms Afsar. First, she had herself been through disability and understood the procedures. Secondly, she had never worked with anyone with depression. Thirdly, the occupational health doctor gave clear advice that was simply not followed by Ms Afsar, and there was no conceivable explanation for her failure. All of those matters, he argued, justified the inference that disability played a part in her treatment of the Claimant. Quite apart from the fact that we do not consider that those matters provide any or sufficient basis for drawing the inference that Ms Afsar would have treated a person without depression but in otherwise comparable circumstances more favourably, the Employment Tribunal simply made no such findings. In our judgement, this tribunal did not engage with Ms Afsar's thought processes or in any comparative analysis of the way in which she treated or would treat others."
"The same is true in relation to issue 4.1.10. We do not accept Mr Bousfield's submission that the Tribunal rejected the explanations offered by the MoJ witnesses about the delays in the ill-health retirement process. We have summarised the Tribunal's findings of fact about the different periods and the way in which different periods of delay attributable to different organisations were explained. Although at  the Tribunal held that there was 'no clear explanation for why that delay took place', we do not understand this to be a finding that there was unexplained delay. Indeed the ET went on to identify a number of reasons for that delay in the same paragraph. First, it described the system itself as arcane and unwieldy. Secondly, the Tribunal found that there was a lack of proper management of individual cases. Thirdly, the Tribunal found that no single person oversaw the case from beginning to end. Finally, the Tribunal found that there was a requirement to deal with three different contracted out services all of which relied on different information held on computers in different parts of the organisation. Those were all matters that formed part of the explanation for the delay as identified in the evidence and indeed in the Tribunal's own findings. Nevertheless, the Tribunal engaged in no comparative analysis as to how or why others without the relevant disability fared or would have fared under this ill-health retirement process. Further, the Tribunal failed to engage at all with the mental processes of the relevant decision makers."
" [A]lthough no specific individual is identified as having been responsible for the alleged detrimental treatment , Mr Bousfield has made clear that the allegation was directed at the three MoJ employees with responsibility for the process, Traci Wilson, Ms Fawcett and Ms Cullen. Again, in relation to these individuals, the case advanced by the Claimant was that the remarkable delay in dealing with his ill health retirement application was influenced, consciously or unconsciously, by their antipathy towards disability and the expensive process or outcome of ill health retirement (see  of the Claimant's closing submissions)."
Again, with the benefit of the notes of the cross-examinations of the three individuals identified, the EAT found that no such case had been put to them.
Section 15 Discrimination
"Mr Bousfield's answer in writing to these points is that motive is irrelevant. Moreover, he submits that the Claimant did not have to prove the reason for the unfavourable treatment but simply that disability was a significant influence in the minds of the decision makers. We agree with him that motive is irrelevant. Nonetheless, the statutory test requires a tribunal to address the question whether the unfavourable treatment is because of something arising in consequence of disability. As we have said, it need not be the sole reason, but it must be a significant or at least more than trivial reason. Just as with direct discrimination, save in the most obvious case an examination of the conscious and/or unconscious thought processes of the putative discriminator is likely to be necessary. In relation to issue 4.1.9, the Tribunal did not identify the reason for Ms Afsar's failure. In relation to issue 4.1.2, it made no examination of her thought processes. To the extent that the Tribunal addressed her thought processes at all in relation to issue 4.1.2, these were addressed at  by a finding that the reason for her failure to treat the Claimant as it was said she should have done was incompetence. Beyond that, the Tribunal made no further examination of her thought processes. Similarly, in relation to issue 4.1.10, the Tribunal failed to engage with the reason why there were delays, as we have already indicated. In all these circumstances, we have concluded that ground 5 succeeds and that the findings of discrimination arising from disability cannot stand."
"57. We turn then to consider the effect of our findings that there were significant errors of law that vitiate the Tribunal's findings both of unlawful direct discrimination and discrimination arising from disability in relation to all three detrimental acts found. Mr Kirk invites us to substitute a finding of no discrimination in this case rather than remit to the same or to a fresh Tribunal. That is an unusual course to adopt and is a course that we could only adopt if no purpose could be served by remitting the case because the inevitable and only conclusion a properly directed tribunal could come to in this case is that there was no unlawful discrimination on either of these grounds.
58. So far as direct disability discrimination is concerned, Mr Kirk relies in support of his submission on the fact that there are no primary facts upon which this Tribunal could have determined that the burden of proof shifted to the Respondents and that there was therefore no prima facie case of unlawful direct discrimination. He points, moreover, to the non-discriminatory reasons in the evidence and the findings made by the Tribunal for the detrimental treatment, which were not rejected and which provide, he submits, an answer to these claims. He says that there is nothing to remit and that no reasonable tribunal properly directed could conclude that there was unlawful direct discrimination here.
59. So far as discrimination arising from disability is concerned, he submits that there is no evidence that the Claimant's sensitivity or inability to work full-time without stress was a reason in the mind of the Respondents for any of the impugned treatment whether consciously or unconsciously. In the absence of evidence and against the findings of fact made in relation to the delays in the ill-health retirement process and as to the reason why Ms Afsar did not undertake a stress assessment or do the other things identified in issues 4.1.2 and 4.1.9, here too he submits that there is simply nothing to remit.
60. We have considered those submissions anxiously and with care. We are conscious in particular, given the length of this hearing and the amount of documentary evidence available, that there was a substantial amount of evidence heard in this case and that an important backdrop to it was the expression, albeit internally, of serious concern amongst HMIP senior personnel about the way in which this ill-health retirement process was handled. We invited Mr Bousfield to identify for us material in the evidence that could have led the Tribunal to find that Ms Afsar acted unlawfully in relation to issues 4.1.2 and 4.1.9 or at least a prima facie case to that effect and that the MoJ employees - Ms Wilson, Ms Fawcett and Ms Cullen - acted unlawfully in relation to issue 4.1.10 or at least a prima facie case to that effect.
61. So far as Ms Afsar is concerned, Mr Bousfield was unable to identify a single piece of evidence that might have led the Tribunal to conclude that there was a prima facie case of less favourable treatment on disability grounds or unfavourable treatment at least in part because of something arising in consequence of the Claimant's disability. So far as issue 4.1.10 is concerned, Mr Bousfield identified emails forming part of a series of emails from senior people within HMIP expressing concern and consternation about the delay and the unacceptable way in which the ill-health retirement process was being handled. He produced, in particular, an email demonstrating that such concerns were communicated by HMIP to personnel at MoJ. Whilst it is obviously a matter of concern that senior people were so seriously concerned about the process, that in itself has no other sensible relevance to the reasons for the delay in the particular process in the Claimant's case, nor does it touch on the reason why there was such a delay or even begin to demonstrate that those reasons included, consciously or unconsciously, the Claimant's disability or something arising from that disability.
62. Mr Bousfield makes a number of additional and broader points that he submits could support such inferences being drawn. First, he says that the Claimant's case was that the Respondents were pushing the managing absence process rather than pursuing the ill-health retirement process, in part at least, because of the relative expense of ill-health retirement and a desire to avoid such expense. Whilst that might have formed the basis of adverse inferences, that case was expressly rejected by the Tribunal at  in relation to issue 4.1.14. In that paragraph, the Tribunal found that there was no breach by the Respondents of policy in pursuing managing absence in tandem with ill-health retirement even where that might result in a dismissal before the ill-health retirement application had been dealt with.
63. Mr Bousfield raises a second point, namely that early retirement was regarded as expensive and therefore the process was deliberately made more difficult. However, that too was addressed by the Tribunal at  where the Tribunal dealt with and rejected issue 4.1.15. The Tribunal rejected the factual basis for the allegation, going on to say that even if the burden shifted it was satisfied that ill-health retirement had a high hurdle and that it was not satisfied that there was either direct discrimination or discrimination arising from disability in this regard. In other words, it found this to be a difficult ill-health retirement process that demands a high hurdle before an individual is accepted as fulfilling the criteria for ill-health retirement, in part because the benefits provided are expensive to provide. That fact on its own does not mean that people without disability are treated any differently from those who do have a disability or that unfavourable treatment is involved by reference to the consequences of such disability.
64. It seems to us that the Tribunal did not find anything more in relation to issue 4.1.10 than that the ill-health retirement process was operated unreasonably and perhaps even to some extent unfairly. It did not find that there was unexplained, unreasonable conduct, and, as we have already indicated, whilst there was no clear explanation, as the Tribunal said, for all of the delay, there were a number of reasons that explained, at least, some delay, none of which involved unlawful discrimination of any kind. In those circumstances, we have come to the somewhat reluctant conclusion that this is a case where there is nothing in the findings of fact or in the evidence drawn to our attention that could lead a properly directed tribunal to reach the conclusion that a prima facie case of less favourable treatment on disability grounds or unfavourable treatment caused by something arising in consequence of disability has been established. The inevitable conclusion in this case is that there was no such unlawful discrimination, and we accordingly substitute that finding in relation to all three findings of unlawful treatment."
It will be apparent that that reasoning to a considerable extent depends on the EAT's reasoning on the substantive issues, as set out at paras. 26-31 above.
"We cannot leave this case without this further comment. The lay members in particular, who have experience of managing absence and ill-health retirement processes of the kind in focus in this case, are concerned by the manner in which it was applied and operated by MoJ as found by the Tribunal. The Tribunal found that the system operated in a manner that caused stress and anxiety to the Claimant, who was already unwell with depression and who suffered a worsening of his heart condition as a consequence. It undoubtedly led to inordinate delay. The systemic failures and the inordinate delay that occurred here may have impacted more harshly on the Claimant as a disabled person and in future might operate more harshly on others with disabilities. However, that was not the case advanced by the Claimant to the Tribunal and not a case, accordingly, that we have been able to address. The lay members in particular feel that these systemic failures and the delays that they cause should be addressed for the future by those with responsibility at MoJ so that others are not subjected to what may be both unfair and disadvantageous treatment."
(a) that the Appellant had applied for ill-health retirement "in consequence of his disability", and
(b) that that necessarily involved him in "unfavourable treatment", because of the inherent inadequacies of the arcane and unwieldy system for handling such applications described by the ET at para. 117 of the Reasons and acknowledged equally by the EAT at para. 65 of Simler P's judgment;
and accordingly that the requirements of the section were satisfied unless the Respondent could prove justification (which would be difficult in view of the criticisms made by the ET and the EAT). As regards (b), he emphasised that his case depended on the delays and mishandling being, as he put it, an "inseparable part of the system", so that once you applied you were inevitably subject to them. There was no need for an examination of the thought processes of individual decision-takers. He submitted that the Respondent "could not have it both ways". If delays of the kind that the Appellant experienced were not an inseparable part of the process, then the question arose of why he had suffered them, and it would have been open to the ET (with the benefit of section 136) to find that the reason was his disability. But if they were indeed inherent in it then he suffered them simply because he had made an application, which was itself a consequence of his disability.
"70. The oral evidence showed remarkable delay on the part of the MoJ. Thus, it took Tracy Wilson three months to investigate the Claimant's grievance about delay in filing IHR documents, during which time Mrs Wilson did not manage to read the Claimant's grievance. Further, when Gemma Cullen became involved she insisted this was for 'hand holding' and 'strategic advice', but this did not appear to include reading into the history of the matter other than a timeline provided by Ms Young.
71. It will be for the tribunal to conclude whether the remarkable delay in this case took place and was influenced, consciously or subconsciously, by antipathy towards disability and the expensive process of ill health retirement. There was evidence that IHR benefits were paid in any event by the pension provider, so this cannot have hit departmental budgets, meaning the motivation may not have been financial in the delay rather processes which discriminate against disability (depression) and its consequences."
I need not elucidate the various particular points made in para. 70: Mr Kirk's point is that they are all directed, as appears from the first sentence of para. 71, to the conscious or subconscious thought processes of the individuals. There was patently no case being advanced that the deficiencies of the system themselves were sufficient to satisfy section 15. If there had been, the Respondent would have wished to call evidence directed to that question, not least in order to advance a case of justification.
Lord Justice Holroyde: