Court of Appeal upholds EAT’s approach to substituting findings in disability discrimination case.

Dunn v The Secretary of State for Justice and HMIP [2018] EWCA Civ 1998

Underhill LJ has today handed down judgment in a case which arguably reiterates that it is permissible for the EAT to adopt a robust and confident application of the Jafri test for determining whether it must remit a case to the ET upon finding an error of law.

The Appellant was employed by the MOJ as a prisons inspector with Her Majesty’s Inspectorate of Prisons (HMIP). He was disabled by virtue of depression and a heart condition and applied for ill health retirement (IHR). He brought various claims of direct disability discrimination, discrimination arising from disability, harassment and a failure to make reasonable adjustments in respect of the way his long-term absences were dealt with by HMIP’s management and the unacceptably long and drawn out process for dealing with his eventual IHR application. At first instance, the Tribunal dismissed the majority of his claims but found, in relation to 3 out of 16 allegations, that the MOJ had directly discriminated against the Appellant on grounds of disability (section 13 EA 2010) and that both the MOJ and HMIP had also discriminated against him on grounds of something arising in consequence of his depression (section 15 EA 2010), namely his need for additional support because of increased sensitivity. Of the three allegations that succeeded, two concerned the Appellant’s line manager and alleged failings by her to put in place support mechanisms upon the Appellant’s return to work. The third allegation complained of the way others had dealt with his IHR application. The Appellant was awarded over £100,000 in compensation for injury to feelings, personal injury and loss of earnings flowing from this discrimination.

On appeal to the EAT, Simler P and members upheld all six of the grounds of appeal considered, finding substantial errors of law with the Tribunal’s approach to both the section 13 and 15 claims. Amongst these errors of law was the fact there were simply no findings of primary fact capable of forming the basis of the burden of proof shifting to the MOJ/HMIP. The Tribunal had not made clear how they drew their inferences of direct discrimination and it was all the more demanding that they should have done so because the witnesses involved had been found, in other parts of the judgment, to act for non-discriminatory reasons. The EAT took the rare step of substituting findings of non-discrimination on all remaining issues, rather than remitting the case to the Tribunal because, in their view, the only inevitable conclusion from the evidence was that there had been no discrimination by either government department.

On appeal to the Court of Appeal, the Appellant argued that the EAT had not asked itself the correct question on disposal and ought to have focussed not on whether the EAT concluded there was a sufficient basis for an inference of discrimination but on whether the Employment Tribunal might have done so. Had it focussed on the right question, it was argued, the EAT could not properly have concluded the claim was bound to fail.

In delivering the judgment of the Court of Appeal, Underhill LJ did not agree that the EAT had asked itself the wrong question. The EAT’s focus was explicitly on what the ET might have concluded and, furthermore, the EAT had been right to conclude there was no realistic prospect of the allegations concerning the Appellant’s line manager succeeding. It had been necessary to show she had acted as she did because her thought processes were influenced, consciously or subconsciously, by the fact the Appellant was depressed or by something which was a consequence of that.

On the third allegation, the Appellant sought to argue that it would have been open to the EAT, had the case been remitted, to find that the Appellant had applied for IHR in consequence of his disability and that that necessarily involved unfavourable treatment because of the inherent inadequacies of the system for handing such applications. It was argued that since the delays and mishandling could be viewed as an inseparable part of the system, there was no need for an examination of the thought processes of the individual decision takers.

The Court of Appeal agreed with the Respondents’ submission that this was a wholly new way of putting the case. The claim in relation to this third allegation had been presented before the ET and EAT on the basis that the delays occurred as a result of the mental processes, conscious or unconscious, of the particular MOJ staff involved. There was simply no case being advanced that the deficiencies in the system themselves were sufficient to satisfy a prima facie case of section 15 discrimination. 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 of the way the system operated. It was not in the interests of justice to allow the Appellant a new hearing to consider for the first time a new point which could have been advanced first time around.

In any event, Underhill LJ went on to observe that if the IHR process was inherently defective, it did not follow that it was inherently discriminatory. The Appellant’s argument appeared to be “I would not be in the situation where I was the victim of delay and incompetence if I were not disabled”. However, that kind of “but for” causation was not sufficient to constitute direct discrimination. Underhill LJ used the analogy of the employee who raises a grievance about sex discrimination which is then, for reasons unrelated to gender, mishandled. The mishandling would not be discriminatory simply because the grievance concerned discrimination. Underhill LJ went on to comment that he could not see why section 15 discrimination required a different approach or justified a different approach to the meaning of “because of”, which was common to both section 13 and section 15.

Tom Kirk represented the successful Respondents (MOJ and HMIP) at the Employment Tribunal, EAT and Court of Appeal and was instructed by Simon Barnett of the Government Legal Department.

A full copy of the judgment can be found here

4th September 2018