HM Prison Service v Beart (No. 2)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Rix,Lord Justice Wall,Lord Justice Hooper
Judgment Date26 April 2005
Neutral Citation[2005] EWCA Civ 467
Docket NumberCase No: A2/2004/2362

[2005] EWCA Civ 467

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

HHJ Ansell, Lord Davies of Coity CBE, Miss S M Wilson CBE

Royal Courts of Justice

Strand, London, WC2A 2LL

Before

Lord Justice Rix

Lord Justice Wall and

Lord Justice Hooper

Case No: A2/2004/2362

Between
Jacqueline Ann Beart
Respondent/Applicant
and
Her Majesty's Prison Service
Appellant/Respondent

Mr Ashley Underwood QC & Miss Samantha Broadfoot (instructed by Treasury Solicitors) for the Appellant

Mr Antony White QC & Mr James Laddie (instructed by Disability Rights Commission) for the Respondent

Lord Justice Rix
1

This appeal concerns a complaint which started in the Employment Tribunal in May 1999, brought by Mrs Jacqueline Beart, who is here the respondent, against her former employer, HM Prison Service, here the appellant. It arises out of Mrs Beart's allegations of disability discrimination and unfair dismissal. Mrs Beart succeeded in the Employment Tribunal and the Employment Appeal Tribunal (EAT) on both grounds. Her claim has previously reached this court on liability [2003] EWCA Civ 119, [2003] ICR 1068. It is now before this court again, this time on damages.

2

Mrs Beart entered the Civil Service on leaving school and after spells in the Foreign and Commonwealth Office and in HM Customs and Excise transferred in 1990 to HM Prison Swaleside, in the Isle of Sheppey. There in 1996 she obtained a temporary promotion to executive officer. Her appraisals were invariably good. In April 1997 her line manager's annual report on her, concurred in by the prison governor, was enthusiastic. When things went wrong, Mrs Beart had put in 18 years of exemplary service.

3

In September 1997, however, Mrs Beart went off work suffering from depression, and never returned to work. A subsequent joint medical report made in September 2003 in the course of these proceedings diagnosed a pre-existing vulnerability to minor depressive illness. But it had never before materially interfered with her work. What triggered a severer depression on this occasion was an altercation with her immediate superior, Mrs Tetley, who misunderstood her inquiry about the possibility of working part-time (to assist with collecting children from school) as an intention to resign her job as temporary executive officer. She was therefore reassigned a part-time job as an administrative officer (a lower rank with a substantial pay cut) which did not in any event meet her child care problem. When Mrs Beart tried to get her old job back, she was told that the advertisement for it could not be withdrawn, which was not true.

4

Mrs Beart went off sick on 11 September 1997. Her employer should have obtained a medical report when she had been away for one month, but it was May 1998 before Dr Susan Harvey, an occupational health consultant, reported that Mrs Beart was still unwell and undergoing treatment, adding:

"I do not think she will recover fully until the difficulties referred to above have been addressed…She does not feel that she will ever be able to return to HM Prison Swaleside but would consider a suitable post at another prison and I think that suitable redeployment may be the only answer to this situation."

5

Mrs Beart had an interest in a clothes shop at that time in Sheerness High Street, as was well known to her employer. The shop was run by a manageress and two part-time assistants. While she was ill Mrs Beart sometimes visited the shop for company, but she did not work there (as the Employment Tribunal found). Mrs Tetley decided to investigate whether Mrs Beart was working in the shop at a time when she was receiving sick pay (half pay). In April 1998 a pair of private investigators, the Lucks, were deployed, who reported in June 1998. For four days running they did not see her in the shop at all. On the fifth and sixth days they saw her unlock the shop, and, before any staff arrived, they made two purchases and engaged her in conversation, for about ten minutes on each day. Mrs Beart was interviewed on 23 August 1998: but the contents of the Lucks' report were not put to her.

6

Two disciplinary charges were brought against her, one that she had undertaken outside work contrary to written instructions, the other that she had undertaken outside work whilst claiming sick pay. Mrs Beart asked for disclosure of a copy of the Lucks' report, to which she was entitled, but it was withheld from her. She wrote to the governor of the prison to ask why Dr Harvey's recommendation for relocation was never dealt with, but he did not reply. The disciplinary hearing took place on 15 December 1998. Both charges were found proved, and on 11 February 1999 Mrs Beart was dismissed.

Liability

7

On 10 May 1999 Mrs Beart issued an originating application to the Employment Tribunal, complaining of disability discrimination and unfair dismissal. At all stages HM Prison Service has been represented by Mr Ashley Underwood QC. The Service denied the complaints, "but accepted that Mrs Beart was disabled by reason of depression" (to quote from the Service's own chronology). The Employment Tribunal heard the complaints over a period of six days in late February 2001 and resolved both of them in Mrs Beart's favour. They referred to Dr Harvey's report and said that it was unusual to have such a clear diagnosis of the cause of a depressive illness and such a clear recommendation (redeployment) for its treatment. They said:

"It seems to us that there is a substantial possibility that, if that adjustment had been made, Mrs Beart would probably still have been employed by the Prison Service and this case would not have been brought."

8

They concluded that the Service's failure to redeploy or relocate Mrs Beart amounted to a failure to make a reasonable adjustment and thus to disability discrimination.

9

As for unfair dismissal, the Employment Tribunal found that although Mrs West, the deputy governor of Maidstone Prison who conducted the disciplinary hearing, honestly believed in Mrs Beart's guilt, she had been unreasonable in that belief. The Tribunal also found that the investigation had been seriously flawed, most seriously by the failure to disclose the Lucks' report, that the disciplinary hearing had itself been unfair, and that dismissal was not within the range of reasonable responses.

10

That hearing of the Employment Tribunal was only concerned with liability not with remedies, the subject of which was adjourned to another hearing. In the meantime the Prison Service appealed to the EAT on both issues, but unsuccessfully. A further unsuccessful appeal was made to this court. At that stage Mr Underwood was submitting that that there was no disability discrimination because it was reasonable for the Prison Service not to act on Dr Harvey's recommendation because an adverse view of Mrs Beart had already been formed in relation to the question of her working elsewhere while on sick pay. Peter Gibson LJ described that submission as "astonishing" and added:

"The truth may well be, as Mr Underwood's submission appears to suggest, that the employer had prejudged the investigation adversely to Mrs Beart. But in fact there is no evidence as to why it was that the employer did not act on the medical advice. In any event Mrs Beart's disability and the question of her business activities are quite discrete matters."

11

Peter Gibson LJ went on to point out that the onus of proving justification was on the employer and that although the prison governor had been asked twice why Dr Harvey's recommendation had not been implemented, he chose not to reply. As for unfair dismissal, Peter Gibson LJ dealt with the appeal on this issue very swiftly, saying that it was an appeal on the facts where the Employment Tribunal had identified four serious defects, any one of which might have founded a conclusion of unfair dismissal. The Tribunal's decision could not be described as perverse.

The Employment Tribunal's remedies decision

12

The adjourned remedies hearing was held by the Employment Tribunal on three further days in September 2003. Both parties called psychiatric evidence: Dr Feeney was heard on behalf of Mrs Beart and Dr Jacobson on behalf of the Prison Service. The Tribunal found their joint report of great assistance and otherwise Dr Feeney's evidence to be particularly compelling. Mrs Beart was described as "highly credible" save that she was over-optimistic in her promotion prospects.

13

Relevant passages from the joint report are as follows:

"1. Diagnoses: We agree that Mrs Beart has had Recurrent Depressive Episodes, at worst of moderate severity, F33.1, since 1997, with onset probably around the first GP recording of low mood on 16.7.97. We agree that she probably had a first moderate depressive episode from then, resolving probably in summer 1998, with a recurrence (in Dr Jacobson's view) about October 1999, lasting some months. Dr Feeney felt that she had some depressive symptoms in April 2000, but Dr Jacobson did not think she had a recognised psychiatric disorder that year. We agree that she had a recurrence of depression in Spring 2001, lasting several months, and a further recurrence of moderate depression around January 2003, still evident in August 2003…

4. Would relocation of Mrs Beart in summer 1998 have been viable? We agree that had she been relocated, she would probably have been satisfactorily employed. Dr Feeney considers that this could probably have taken place in summer 1998. Dr Jacobson considers this could have taken place perhaps towards the end of the year or in early 1999.

5. If Mrs Beart had taken up relocation to a post in another...

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