Poor management does not automatically mean disability discrimination

The best employment lawyers will often find that identifying an act of direct discrimination is straightforward – but occasionally caution is necessary. Not only is it important to consider what has happened as a matter of fact, but it is also important to scrutinise the motivation of the employer in its treatment of the employee. In some cases, where an employee feels that there has been disability discrimination, sex discrimination, race discrimination – any detrimental treatment on the ground of a protected characteristic, a closer examination by a UK Employment lawyer will reveal not direct discrimination, but simply a case of poor management.

The facts in Dunn v The Secretary of State for Justice & Anor

Dr Dunn was employed by the Ministry of Justice/HM Inspectorate of Prisons as a prison inspector, commencing his Employment in 2010. From late 2012, he suffered from a depressive illness, compounded in summer 2015 with a diagnosis of a serious heart condition. He took early, ill health retirement from 26th February 2016. He had submitted his application for ill health retirement in November 2014 in relation to his depression.

By the time Dr Dunn’s complaints of disability discrimination and harassment had reached the Employment Tribunal, it was common ground that the process of ill health retirement was poorly handled – not necessarily by his immediate line management who had tried to speed things up (although some allegations were made against his line manager), but more generally in terms of the bureaucracy of the process and the number of organisations involved. This overly bureaucratic process related to ill health retirement represents a scenario that many employment law solicitors in London will recognise.

The harassment claim was dismissed, and only 3 of the disability discrimination claims were permitted to proceed. The Employment Tribunal found for Dr Dunn in respect of those 3 claims, and he was awarded significant compensation. On appeal by the Ministry of Justice, the Employment Appeal Tribunal found that the Employment Tribunal had misdirected itself and the decision in favour of the claimant was flawed. The EAT dismissed the claims without remitting them for rehearing. Dr Dunn appealed to the Court of Appeal on the basis that the matter should have been remitted.

The Court of Appeal’s findings

Although the appeal was against the EAT’s decision not to remit the matter back to the Employment Tribunal so that it could direct itself correctly and retake the decision, the Court of Appeal’s findings are instructive on the question of what must be in an employer’s mind for a disability discrimination claim to succeed.

The Court of Appeal identified that the basis of the EAT’s decision was that the Employment Tribunal had not considered whether the decision makers concerned had Dr Dunn’s disability in their minds when they acted in the way that they did. Equally, the tribunal did not consider whether those who were not disabled wold have been treated any differently (and better). It wasn’t even possible to infer these findings on behalf of the Employment Tribunal.

The EAT’s obligation to remit

In cases where a decision is appealed to the Employment Appeal Tribunal from the Employment Tribunal, and the EAT finds that the Tribunal has made an error in law, the EAT must send it back to the Employment Tribunal unless there is only one decision that could be reached.

In this case, the Court of Appeal felt that the EAT had made the right call – there was no evidence to suggest that the Ministry of Justice staff and others involved in the handling of Dr Dunn’s case were in any way motivated by his disability. There might have been incompetence and poor management, but this was not evidence of discrimination.

An unattractive – but valid – argument for employers

Many Employment claim solicitors will have come across the situation where an employer’s lack of organisation, appropriate systems and general poor management has been mistaken for discrimination. While it can be an unattractive argument to run – to essentially take the position that anyone would have been treated as poorly as the individual claiming discrimination – it can defeat a discrimination claim if this is genuinely the reason for the poor treatment.

However, as most UK employment lawyers would recognise, it would be by far the better course of action for employers at risk in this way to carry out an in-depth audit of policies and processes and take steps to streamline. This action can prevent unnecessary litigation, and contribute significantly to workplace wellbeing, as both managers and staff can be clear about what is expected of them and what to expect.

For advice and support on any aspect of disability discrimination, or discrimination in the workplace more generally, please contact our team of employment solicitors on 0203 959 9123. We can also assist if you are considering auditing or updating your HR policies and processes and can be involved to make sure your organisation is up to date and compliant with the latest employment law.