Dunn v The Secretary of State for Justice & Anor [2018] EWCA Civ 1998

Appeal against an EAT decision which overturned an ET judgment in which the Claimant succeeded in 3 of his claims. Appeal dismissed.

The ET upheld 3 of the Claimant's claims of direct discrimination and s15 discrimination relating to the way in which the Respondent had handled his ill-health retirement. The EAT allowed the Respondent's appeal - the essential flaw which the EAT found in the ET's reasoning as regards the direct discrimination claim was that it had given no consideration to the motivations of the relevant decision-makers – that is, to whether the fact of the Claimant's disability had operated on their minds so as to cause them to act, or fail to act, in the manner complained of. The EAT dismissed the claims instead of remitting them to another ET. The Claimant appealed to the Court of Appeal - although he accepted that the ET went wrong in law, it was his case that the EAT was wrong to dismiss the complaints itself and that it should have remitted them for re-hearing.

The Court of Appeal dismissed the appeal. 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.


Published: 05/09/2018 16:09

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