Kerry Underwood


with 2 comments


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

the Court of Appeal was considering whether the Employment Appeal Tribunal should have remitted a disability discrimination case to the Employment Tribunal, rather than substituting its own decision, having overturned the original decision of the Employment Tribunal.

It dismissed the appeal and held that the EAT was right not to remit.

Of greater interest is the Court of Appeal’s attack on the Ministry of Justice:

“… its ill-health retirement processes, which by definition are applied to people who are to a greater or lesser extent vulnerable, are so… arcane and unwieldy…”

It quoted from the Employment Tribunal:

“…There is a lack of proper management of individual cases, no one person oversees the case from beginning to end and there is a requirement to deal with three different contracted out services, all of which rely on different information held on computers in different parts of the organisations.”

The Employment Tribunal found that the ill-health retirement process was operated unreasonably “and perhaps even to some extent unfairly.”

It also found that this was “a difficult ill-health retirement process that demands a high hurdle before an individual is accepted as fulfilling the criteria for ill-health retirement, in part because the benefits provided are expensive to provide.”

In a damning statement quoted by the Court of Appeal, the Employment Appeal Tribunal said:

“We cannot leave this case without this further comment. The lay members in particular, who have experience of managing absence and ill-health retirement processes of the kind in focus in this case, are concerned by the manner in which it was applied and operated by MoJ as found by the Tribunal. The Tribunal found that the system operated in a manner that caused stress and anxiety to the Claimant, who was already unwell with depression and who suffered a worsening of his heart condition as a consequence. It undoubtedly led to inordinate delay. The systemic failures and the inordinate delay that occurred here may have impacted more harshly on the Claimant as a disabled person and in future might operate more harshly on others with disabilities. However, that was not the case advanced by the Claimant to the Tribunal and not a case, accordingly, that we have been able to address. The lay members in particular feel that these systemic failures and the delays that they cause should be addressed for the future by those with responsibility at MoJ so that others are not subjected to what may be both unfair and disadvantageous treatment.”

The Court of Appeal itself referred to “the reprehensible delay in dealing with the appellant’s ill-health retirement application.” It took the relevant person at the MoJ three months to even bother to read the claimant’s grievance.

The claimant lost because everyone at the MoJ, disabled or not, is treated like this, and therefore the conduct was not due to the claimant’s disability.

This is known among employment lawyers as “the bastard defence”, that is that the employer behaves terribly to everyone, and not just those with protected characteristics.


What a state of affairs this country has reached when the government department responsible for administrating the justice system of this country is in this state.

However, let us be clear where the blame lies – it is with the utterly destructive “austerity” policies of government whereby the Ministry of Justice’s budget is being cut by 51% between 2010 and 2024 – see Law Society Gazette – 18 March 2019.

As certain very significant expenses, such as judicial pensions, council tax etc. are ring-fenced and cannot be cut, the true day to day running cut is reckoned to be around 75%.

No organisation can function with that sort of cut.


Written by kerryunderwood

March 22, 2019 at 10:33 am

Posted in Uncategorized

2 Responses

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  1. Could it be down to legions of staff all following what the computer screen says instead of applying common sense?

    Duncan Needham

    March 22, 2019 at 1:08 pm

    • Duncan

      No, I do not think that is the problem – I think the Ministry of Justice is genuinely very short of staff now.



      April 10, 2019 at 1:54 pm

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