Depressed worker not discriminated against by retirement process that took 13 months

Court of Appeal finds ‘bureaucratic’ procedure was flawed but not ‘so deficient’ it was discriminatory

Depressed worker not discriminated against by retirement process that took 13 months

A prison inspector was not discriminated against after it took more than a year to fully process his early retirement request, the Court of Appeal ruled earlier this week.

Dr Peter Dunn was employed as a prison inspector from November 2010 at various sites across the country. In late 2012, he began suffering from a depressive illness. He took time off for his illness between February and April 2014. That May, an occupational health report was obtained and, later that month, Dunn had a return to work meeting with his line manager.

In November 2014, Dunn applied for early ill-health retirement. The judgment described the system for handling the application as “elaborate”, with long delays when dealing with the initial stages of his request. It added that, although there may have been some shortcomings on the prison inspector’s behalf, “a substantial part of the delay was due to unnecessary bureaucratic processes”.

Although his line manager raised concerns over the length of time the application was taking, Dunn raised a grievance of his own about the delay. 

Medical opinions were eventually received in the spring of 2015. However, the process had now been complicated by developing problems with Dunn’s heart. The prison inspector went off work in March 2015 and, in summer 2015, was diagnosed with a serious heart condition. 

In July 2015, an ill-health retirement estimate was issued but this contained errors, including mistakes relating to length of service. Correcting these took time. A final decision to allow early retirement was made in December 2015. 

Dunn retired, effective from February 2016. He brought 16 complaints of disability discrimination and harassment to an employment tribunal.

The tribunal allowed three of Dunn’s disability discrimination claims – that his line manager had not responded adequately to the recommendations in the occupational health report, that his line manager failed to put support mechanisms in place at his return to work interview and that his retirement application was unreasonably delayed. He was awarded approximately £100,000. 

The Ministry of Justice (MoJ) appealed. The Employment Appeal Tribunal (EAT) decided the tribunal’s reasoning was flawed and reversed the decision. 

Dunn brought the case to the Court of Appeal. While he accepted the original tribunal had erred in law, he argued the EAT should have sent his claims back to tribunal level to be reconsidered on the facts rather than rejecting them outright. 

The Court of Appeal dismissed the appeal. 

“I wish to say, though I fear this will be little comfort to [Dunn], that it is no credit whatever to the MoJ that its ill-health retirement processes, which by definition are applied to people who are to a greater or lesser extent vulnerable, are so, in the [tribunal’s] phrase, arcane and unwieldy; and I would endorse the EAT's recommendation that they be reconsidered,” said Lord Justice Underhill. “But it does not follow from the fact that they are so deficient that they are also discriminatory.”

Despite the decision in the employer’s favour, Andrew Willis, head of legal at CIPD HR-inform, stressed the importance of keeping employees updated with the progress of internal processes. 

“Continuing communication with employees and explaining the reason for any delay will help ensure the employee feels supported during often difficult or sensitive times, and they will be aware that the employer is listening to any concerns they have,” Willis added. “This will help reduce the possibility of facing formal complaints or grievances, and will also reduce the likelihood that the employee links any difficulties with the process to their protected characteristics.”

Both Dunn and the MoJ have been contacted for comment.