Not all disability-related poor treatment is discrimination
Dr Dunn accused his employer, the prison service, of disability-related poor treatment. He had been suffering from depression and a heart condition, both of which are disabilities under the Equality Act. He had absence because of depression for just over a month and after an occupational health report he returned to work.
But a few months later he applied for early ill-health retirement because of his depression. This was a good job with a large employer and they have an insurance policy in place to cover staff who find themselves unable to work because of ill-health. The employer delayed dealing with his application (later acknowledging that the process could have been handled better).
The prison service obtained a medical opinion after a few more months. His application for ill-health retirement was progressed but the letter setting out his entitlement was full of errors such as his length of service and his financial entitlement. This caused further delay until eventually he left.
He claimed that the process was discriminatory on the grounds of his medical condition.
The tribunal found that he had been both directly discriminated against and subjected to unfavourable treatment for a reason arising from his disability. But the employer appealed and the case went all the way to the Court of Appeal, which rejected his case, stating that although the ill-health retirement process required improvement, it was not so deficient that it could be classed as discriminatory.
Discrimination is often more about conspiracy than ‘cock-up’. Not every instance of bad treatment that is tenuously linked to a disability or other protected characteristic will give an employee a finding of discrimination.
A finding of direct discrimination requires that the treatment complained about must be ‘because of’ the disability. Eg that a manager sat on paperwork because they perceived the disabled employee as a pain in the neck. A finding of discrimination arising from disability requires that the treatment must be ‘because of’ something (like absence) that is linked to disability.
This ‘because of’ link is fairly strict. It is not enough that the disability provided the context or the treatment or that it wouldn’t have happened without the disability – the tribunal needs to make a finding about the state of mind of the manager(s) involved in the decisions.
This is what the tribunal forgot in this case and why the Court of Appeal stepped in to find for the employer.
The judgement stressed that justified grievances about disability-related poor treatment don’t automatically lead to a finding of discrimination. In this case, the employer hadn’t discriminated against the employee, actually being very sympathetic towards the employee’s situation.
Case report:Dr Peter Dunn v Inspectorate of Prisons
Image used under CC courtesy of Marine Perez