Dunn v Secretary of State for Justice and HMIP  UKEAT/0234/16 (27 January 2017)
The Claimant 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 Claimant 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. The Claimant was awarded over £100,000 in compensation for injury to feelings, personal injury and loss of earnings flowing from this discrimination.
On appeal, the President of the EAT (Simler J) 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:
- Simler J agreed that procedural fairness required that the substance of an allegation of discrimination be put squarely and fairly to a witness in cross-examination. This also flowed from the reasoning of the Supreme Court in R (on the application of E) v Governming Body of JFS  IRLR 136) that a Tribunal must, in all but obvious cases, examine mental thought processes and determine what facts operated on the mind of those alleged of discrimination. The Claimant’s case had been that the MOJ’s and HMIP’s witnesses had acted with an “antipathy towards people with depression, its consequences or a fear of managing it”. This simply had not been put, fairly or squarely, nor were the thought processes of the relevant witnesses examined in cross-examination.
- 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 (applying Gibson LJ in Bahl v Law Society  IRLR 640). There was no comparative analysis undertaken: whilst the Tribunal had concluded the ill-health retirement system was “arcane and unwieldy”, this was simply a finding of “unreasonable” treatment, which without more could not form the basis of an inference of discrimination.
- The Tribunal had not weighed or considered the MOJ/HMIP’s reasons their treatment of the Claimant or the delays in the application at the second stage of the burden of proof test;
- The Tribunal had departed from the pleaded and previously agreed issues on the section 15 claim. The principle in Chapman v Simon  IRLR 124 necessarily could be extended to identifying the “something arising in consequence of disability”.
- The Tribunal failed to apply the second stage for causation when considering the section 15 claim as required by Basildon and Thurrock NHS Trust v Weerasinghe UKEAT/0397/14.
- The Tribunal failed to consider, properly or at all, the MOJ/HMIP’s pleaded objective justification defence to the section 15 claim.
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.
Tom Kirk represented the successful Appellants (MOJ and HMIP) and was instructed by Simon Barnett of the Government Legal Department