Veitch Penny LLP - Exeter | Crediton, Devon

Case

HM Prison Service v Beart
Court of Appeal - (23 January 2003)

Issues

(1) Disability Discrimination
(2) Depression
(3) Disciplinary Proceedings

Facts

Jacqueline Beart was employed by the HM Prison Service (HMP) as an Administrative Officer at HM Prison Swaleside in April 1990. In 1996 she became a temporary Executive Officer.

In August 1997 there was an incident between Beart and her Line Manager, Mrs Tetley, which led to a confrontation. Shortly afterwards Beart asked if it was possible for her to be employed on a part-time basis as she was experiencing problems with the collection of her children from school. Mrs Tetley thought her request meant that Beart wished to resign from her position and as a result advertised her role as vacant. She arranged for Beart to undertake part-time employment at a lower level. Beart objected and sought to continue as a temporary Executive Officer but was told by Mrs Tetley that this would not be possible as her job had already been advertised and could not be withdrawn.

As a result, Beart went off sick suffering from depression from which she did not return. (At the hearing, her condition was described as “chronic”, and she was prescribed anti-depressants.) Following her absence off sick, the HMP arranged for a report to be prepared by an Occupational Health Consultant. It indicated that Beart’s condition was unlikely to improve until the situation with Mrs Tetley had been addressed. The report also stated that it was unlikely that Beart would be able to return to the Prison and suggested that redeploying Beart to another prison would be the only thing that could assist her back to work. Despite this recommendation of deployment it was not acted upon by the HMP.

The HMP had been aware that before her ill health, Beart ran a clothes shop on a part-time basis. She had a lease on a shop and had a Manageress and staff to run it. In January 1998 Beart was contacted by her employer who said it believed she was working in the shop whilst claiming sick pay. It requested that she cease working in the shop and purportedly withdrew from its permission to undertake work outside work. A few months afterwards Beart was again seen in the shop and accordingly the HMP instructed investigators to observe the premises and prepare a report.

As a consequence, the HMP brought two disciplinary charges against Beart alleging that she had undertaken work outside her employment contrary to the HMP’s withdrawal of permission to do so and that she had worked whilst claiming sick pay. Beart argued that she had never worked in the shop - that her visits were merely to open up, complete accounts or for company during her sickness absence.

At a Disciplinary Hearing held in November 1998 the HMP found the disciplinary charges to have been made out and terminated Beart’s employment.

Beart issued proceedings at the Employment Tribunal alleging that she had been unfairly dismissed and that she had been unfairly discriminated against on the grounds of her disability. The Tribunal found that Beart’s employers’ failure to relocate her as suggested by the Consultant had amounted to discrimination. The HMP had unlawfully discriminated against her by failing to make the suggested re-adjustment. In addition, the Tribunal found that the disciplinary process and the investigation leading to it were unfair and unreasonable because the investigator’s report had been misleading and inadequate. Further, as Beart was a temporary worker and outside the HMP’s policies in connection with outside work, the HMP was not in a position to withdraw consent for her to undertake such work.

As a result the Tribunal found that she had been unfairly dismissed and discriminated against. The HMP’s appeal against the decision was also dismissed.

Decision

The Court of Appeal dismissed the employer’s further appeal. Both parties accepted that her illness was a disability as defined by the Disability Discrimination Act 1995. In addition it was not disputed that the Tribunal had been incorrect to find that the HMP’s failure to make an adjustment amounted to discrimination.

However, it was clear in this case that the duty under Section 6(1) of the Act applied. Beart could not continue working at Swaleside and the reasonableness test contained within Section 6 of the Act was to consider transferring her to an alternative place of work. The Tribunal did find that the HMP had failed to consider the reasonableness of relocating Beart. It was correct to reach a conclusion that by failing to consider the test, the HMP was in breach of the Act. The HMP could not have been considered to behave reasonably when it had not given any consideration to relocation.

There was sufficient evidence for the Tribunal to find Beart had been unfairly dismissed. As a result, the Appeal Tribunal was also correct to dismiss the employers’ appeal from that decision.

Comments

As a result of her case, Ms Beart received the highest compensation in a disability discrimination case, namely £420,000. The settlement was made up of £380,000 for lost wages, lost future earnings and pension. A further £40,000 was awarded for personal injury, injury to feelings, aggravated damages and unfair dismissal.