Privilege: Judgement on litigation privilege overturned
The Court of Appeal has overturned a High Court decision about whether litigation privilege will apply to communications created during internal investigations.
Published 12 October 2018
Mr Dunn was a prison inspector. He suffered from a depressive illness and a serious heart condition, which amounted to a disability. He applied for ill health retirement. The application was bureaucratic and poorly handled: it took over a year to process and involved three contracted out services, each relying on different information held on different computers in different parts of the organisations involved. Mr Dunn brought proceedings for disability and harassment arising out of the way he was treated by his employer in the process, identifying 16 different complaints.
The employment tribunal allowed three of these complaints. These were:
Mr Dunn was awarded £100,000.
The Ministry of Justice, Mr Dunn’s employer, appealed against all three findings, and the EAT allowed all three appeals.
In relation to the findings of direct discrimination, the EAT held that the employment tribunal had given no consideration to the motivations of the relevant decision makers – it had not considered whether Mr Dunn’s disability had operated on their minds so as to cause them to act/fail to act, as they did. The employment tribunal had also failed to make a finding that others who were not disabled would have not have been treated in the same way. Mr Dunn had been treated unreasonably but, as the EAT noted, unreasonable treatment cannot, by itself, justify a conclusion that a person without a disability would have been treated more favourably. Explicit findings as to Ms Asfar’s motivation were all the more necessary in light of a finding by the tribunal that Ms Asfar’s failure to undertake a stress risk assessment was because of “incompetence”.
Similarly, in relation to the two findings of discrimination arising from a disability, the EAT held that the tribunal had failed to ask whether Mr Dunn was subjected to unfavourable treatment because of something arising in consequence of his disability.
The EAT decided that it was appropriate to substitute a finding of “no discrimination” rather than remitting the case to the tribunal, as there was nothing in the findings or the evidence that could lead a properly directed tribunal to reach the conclusion that a case of less favourable treatment on disability grounds or unfavourable treatment caused by something arising in consequence of a disability had been made out.
Mr Dunn appealed to the Court of Appeal, which dismissed his appeal.
Mr Dunn appealed the decision on the grounds that the case should have been remitted to the employment tribunal, rather than dismissing it. The Court of Appeal dismissed his appeal, holding that the EAT was entitled to hold that there was no realistic prospect that the parts of the case based on Ms Asfar’s acts or omissions could succeed. The Court of Appeal, however, did comment that “it is no credit whatever of 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 ET’s phrase, arcane and unwieldy; and I would endorse the EAT’s recommendation that they be reconsidered. But it does not follow from the fact that they are so deficient that they are also discriminatory.”
Employers will not, of course, aspire to policies and procedures that leave them vulnerable to this kind of criticism and their employees to unnecessary stress. However, as this case shows, to constitute disability discrimination, the disability must, whether consciously or unconsciously, influence the actions of the decision makers.