Ill health retirement: Will a flawed procedure always be discriminatory?

Every HR practitioner knows that, despite an employer’s best intentions, internal processes sometimes go wrong. Steps may be missed or the whole process may simply take much longer than the parties hope.

While procedural shortcomings may be upsetting or frustrating, especially for an employee with a disability, will they always amount to discrimination?

Reassuringly for employers, Dunn v The Secretary of State for Justice confirmed that a flawed ill health retirement process may not amount to disability discrimination if the claimant cannot show a background motive of discrimination on the part of the respondent employer.

What happened?

Mr Dunn was employed from November 2010 as a prison inspector. Unfortunately, he suffered from a depressive illness and was later diagnosed with a serious heart condition leading him to take early retirement in February 2016.

The process adopted by Mr Dunn’s employer for ill health retirement was found to be flawed because the process was elaborate. There were a number of legal entities involved in a bureaucratic process resulting in long delays.

Following a number of mishaps, Mr Dunn was finally issued with an estimate setting out the benefits for his retirement in July 2015. This estimate was incorrect.  It took the employer until December 2015 for the process to be completed and Mr Dunn to be permitted to retire on the grounds of ill health.

Employment Tribunal findings

The Employment Tribunal found in favour of Mr Dunn on some of his discrimination allegations, namely:

• failure to implement the recommendations of the occupation health report;
• failure to put into place any support mechanisms for a return to work interview;
• the unreasonable delay taken to consider the application; and
• failure to calculate the retirement estimate properly.

However, these findings were appealed and overturned by the Employment Appeal Tribunal.

The appeal decision

The EAT overturned the Employment Tribunal’s decision (and the EAT decision was in turn upheld by the Court of Appeal). The EAT stated that the Employment Tribunal “had given no consideration to the motive behind the relevant decision-makers”. The fact Mr Dunn had a disability was not a factor in the decision-making process, nor was it one that caused unreasonable delay in progressing his retirement. The delay or incorrect decision making on the part of the employer did not in itself support a conclusion that Mr Dunn was discriminated against because of his disability.

What does this mean for me?

The take-away message of this case is reassuring for employers; you will not necessarily be liable for discrimination simply because an internal process applied to a disabled employee has gone awry. There must be something more. To succeed in a discrimination claim, an employee must be able to show that the decision-makers involved were in some way motivated by discrimination.
However, while it is possible to cite poor administration or human error as the reason for any adverse treatment an employee has received, this is obviously not a very attractive option and you may be wary of discussing any perceived shortcomings in the public forum of an Employment Tribunal. As always, it is best to adopt a preventative approach.

Take care in dealing with early retirement due to grounds of ill health. It is not an easy situation on either part, so always adopt a compassionate stance. If you have not already done so, consider putting in place a mechanism for dealing with ill-health retirement and train managers to ensure that they follow the prescribed processes fairly and fully. Any timescales detailed in the procedure should not be unreasonably long and should be adhered to as far as reasonably practical. An employee should be made aware of the process from the outset and regularly updated to ensure transparency and decrease the potential of any further undue stress placed on that employee, especially in cases involving stress-related illnesses.

It is also important to be mindful of other forms of discrimination which might creep in to the management and eventual ill-health retirement of an employee with a disability, which do not necessarily rely on the thought processes or motivation of the decision-maker. For example, if you decline to put in place a workplace change that an employee with a disability feels will assist them, your business might still find itself liable for a failure to make reasonable adjustments, regardless of any discriminatory intention. If in doubt, please do not hesitate to get in touch. We would be happy to support you.

Samantha Percival (samantha.percival@weightmans.com) is a Solicitor in the Employment, Pensions and Immigration team and is based in Manchester. If you have any questions or concerns, please do not hesitate to contact Samantha or speak to your usual Weightmans advisor.