An early retirement application due to disability was “very poorly handled”, and there were other failures. The Court of Appeal held that an employer’s mishandling of disability matters is not normally a breach of ss. 13 or 15 EqA unless the employer’s “motivation” for its action or inaction was the disability or something arising from it. One had to look at the employer’s thought processes. The failures in the present case due to incompetence or other mishandling were not discriminatory. (This would not apply to a reasonable adjustment claim).
Court of Appeal, 2018. Full judgment www.bailii.org/ew/cases/EWCA/Civ/2018/1998.html
The claimant was a prison inspecter suffering from a depressive illness. He was absent for a period in early 2014. After this an occupational health report was obtained and he had a return to work interview with his line manager. In November 2014, he applied for early ill-health retirement on account of his depression. His application was mishandled and there was a long delay dealing with it. He went off work in March 2015. Finally in December 2015 a decision was made to permit him to retire on ill-health grounds.
The tribunal was critical of the way the claimant’s line manager had handled the case. Also it was not disputed that his early retirement application had been “very poorly handled”. Senior people within HM Inspectorate of Prisions had expressed concern and consternation about the delay and the unacceptable way in which the ill-health retirement process was being handled.
The employment tribunal upheld a claim for discrimination arising from disability under s.15 EqA as regards three detriments, and direct discrimination under s.13 as regards the second two:
- the employer – mainly the line manager – failed to react adequately to the occupational health report recommendations;
- the line manager failed to put any support mechanisms in place at his return to work interview; and
- his early retirement application had been mishandled.
Held by the Court of Appeal: these discrimination claims failed. There had to be a causal link between the detriments and the disability, which had not been shown. It was probably not enough that the detriments would not have arisen but for the disability.
Causal link needed
The Court of Appeal held that the employment tribunal’s decision could not stand as the tribunal had not identified the reasons for the employer’s failures. This had to be done not only for direct discrimination under s.13 EqA (less favourable treatment because of disability) but also for discrimination under s.15 EqA (unfavourable treatment because of something arising from disability).
The Employment Appeal Tribunal said that the statutory test under s.15:
… 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.
The last sentence was specifically approved by the Court of Appeal in Robinson v Department for Work and Pensions, 2020.
The first two detriments
On the first two detriments – the line manager failing to react adequately to the occupational health report and failing to put any support mechanisms in place at the return to work interview – the tribunal had made no examination of the line manager’s thought processes. It would be necessary to show that the line manager acted as she did because her thought processes were influenced, consciously or subconsciously, by the fact that the claimant was depressed or (under s.15) by something which was a consequence of that (eg the claimant having been absent from work due to depression).
The claimant argued that the line manager had an antipathy to dealing with cases of depression. However that had never been put to the line manager in cross-examination, and any evidence for it was “distinctly flimsy” and hard to reconcile with the tribunal’s finding that her failings were the result of “incompetence”.
Mishandling of early retirement application
The claimant had suggested that the delay in this application was influenced, consciously or subconsciously, by antipathy towards disability and the expensive process of ill health retirement. However this was not supported by the employment tribunal (ET) decision.
The claimant tried to argue alternatively that he had a s.15 claim because he had applied for ill-health retirement “in consequence of his disability” and this necessarily involved him in “unfavourable treatment”, because of the inherent inadequacies of the arcane and unwieldy system for handling such applications. This argument depended on the delays and mishandling being “an inseparable part of the system”, so that any applicant for ill-health retirement was inevitably subject to them and there was no need for an examination of the thought processes of individual decision takers. The Court of Appeal held it was not open to him to raise this argument for the first time now. In any event the court doubted that the argument could succeed; its provisional view (though it did not decide the point) was:
In the context of direct discrimination, if a claimant cannot show a discriminatory motivation on the part of a relevant decision-maker he or she can only satisfy the “because of” requirement if the treatment in question is inherently discriminatory, typically as the result of the application of a criterion which necessarily treats (say) men and women differently. In this case, if the ill-health retirement process was inherently defective in the ways found by the ET, it does not follow that it was inherently discriminatory. In truth [the claimant’s] argument appears to be “I would not be in the situation where I was the victim of delay and incompetence if I were not disabled”; but that kind of “but for” causation is not regarded as sufficient to constitute direct discrimination. There is an analogy with the not uncommon case where an employee who raises a grievance about (say) sex discrimination which is then, for reasons unrelated to his or her gender, mishandled: the mishandling is not discriminatory simply because the grievance concerned discrimination. [The claimant’s] answer is that section 15 cases require a different approach. But as at present advised I cannot see why the differences between section 13 and section 15 (essentially (a) the extension of protection to cases where the cause of the treatment is “something arising from” the protected factor, and (b) the use of “unfavourable” rather than “less favourable”) justify any different approach to the meaning of “because of”, which is common to both provisions. …
This case indicates that it is not enough for a disability discrimination claim under sections 13 or 15 EqA that the employer deals with a disability issue or grievance incompetently, or with undue delay. For a claim under either s.13 (direct discrimination) or s.15 (discrimination arising from disability), one has to look at the reason why the employer acted as it did, or the reason why it failed to take action. This normally involves looking at the employer’s thought processes, conscious or unconscious. In the context of direct discrimination the courts often refer to this as whether the employer had “discriminatory motivation”. (As to where it may not be necessary to look at motivation/thought processes, see Discrimination arising from disability>Inherent discrimination.)
For a s.15 claim (where the employer has a defence if it shows justification) the reason for the unfavourable treatment – or a significant part of the reason – can be something which is a consequence of the disability, eg being absent from work.
The court’s provisional view rejecting the claimant’s argument that the mishandling of the early retirement claim was inevitably s.15 discrimination because it resulted from his disability and was inherently inadequate, was approved by the Court of Appeal two years later in Robinson v Department for Work and Pensions, 2020.
The decision in this case is similar to the Court of Appeal’s decision in Unite the Union v Nailard. This held that an employer’s failure to take action against harassment by third parties was not a breach of s.26 EqA (harassment) unless the employer had a discriminatory motivation for not taking action.
A claim for failure to make reasonable adjustments does not depend on the employer’s motivation. If reasonable adjustments are not made due to incompetence, for example, that can give rise to a claim.
As regards an inherently cumbersome or long-drawn-out procedure, there may be a claim for reasonable adjustments or indirect discrimination if, say, the procedure put disabled people at a particular disadvantage. Since this would not be a claim under s.13 or 15, the employer’s motivation would not be so important.