HM Prison Service v Beart
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE MAY,LORD JUSTICE SCOTT BAKER |
| Judgment Date | 23 January 2003 |
| Neutral Citation | [2003] EWCA Civ 119 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A1/2002/1185(a) |
| Date | 23 January 2003 |
[2003] EWCA Civ 119
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Peter Gibson
Lord Justice May
Lord Justice Scott Baker
A1/2002/1185(a)
MR ASHLEY UNDERWOOD QC (instructed by The Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS) appeared on behalf of the Appellant.
MR JAMES LADDIE (instructed by Messrs Clarke Kiernan, 2–4 Bradford Street, Tonbridge, Kent TN9 1DU) appeared on behalf of the Respondent.
As Approved by the Court)
Thursday, 23rd January 2002
The employer, HM Prison Service, appeals from the order of the Employment Appeal Tribunal ("the EAT") on 21st May 2002 dismissing the employer's appeal from the decision of an Employment Tribunal sitting at Ashford, Kent. By that decision sent to the parties on 27th March 2001 the Tribunal upheld the complaint of the employee, Jacqueline Beart, that she had been unfairly dismissed and unlawfully discriminated against on the grounds of her disability.
The case involved a lengthy hearing over seven days before the Tribunal, and the exceptionally full and painstaking Extended Reasons of the Tribunal run to 33 closely typed pages. I summarise the relevant facts found by the Tribunal.
Mrs Beart was born in March 1964. Since leaving school at the age of 16 she had been employed in various branches of the Civil Service. In April 1990 she was transferred to work as an Administrative Officer at HM Prison, Swaleside in the Isle of Sheppey. In 1996 she became a temporary Executive Officer. Below the more senior grade, staff at the prison were divided into unified grades, comprising prison officers, and non-unified grades, comprising Civil Service employees like Mrs Beart. She invariably earned good appraisals. In her appraisal for the year ended April 1997 she made clear to the employer that she was seeking a substantive full-time post as Executive Officer.
Her immediate line manager was Wendy Tetley. In August 1997 an incident occurred (regarding the release date of a prisoner) on which Mrs Beart went straight to John Podmore, a Governor of Swaleside, over the head of Mrs Tetley. Mrs Tetley resented this and there was an angry exchange of words between her and Mrs Beart. Mrs Tetley felt threatened by Mrs Beart. On 9th September 1997 Mrs Beart spoke to Mrs Tetley about options to work part-time. This was because Mrs Beart had problems over collecting her children from school, her husband (from whom she had separated) having indicated that he would no longer be able to collect the children. Mrs Tetley misconstrued that inquiry as meaning that Mrs Beart wished to resign from her full-time job as temporary Executive Officer. Mrs Tetley arranged for Mrs Beart to do a part-time job as an Administrative Officer, which would have involved afternoon work, and so would not have assisted her child care problem, as well as a substantial pay cut. Mrs Beart objected and sought to continue as temporary Executive Officer, but was told by Mrs Tetley that that would not be possible as the job had already been advertised and the advertisement could not be withdrawn. Mrs Tetley agreed in cross-examination that the advertisement could have been withdrawn.
On 11th September 1997 Mrs Beart went sick. She never returned to work. It is common ground that she suffered from depression and that she had a disability within the meaning of the Disability Discrimination Act 1995 ("the Act").
Only after eight months, in May 1998, did the employer obtain a medical report on her. That step was provided for after the employee was absent for one month by the provisions of the Prison Service Order 8401 dealing with the management of long-term sickness absence. In her report to the employer Dr Susan Harvey, an occupational health consultant, stated:
"In answer to your specific questions I am unable to comment at the moment on the likely duration of her illness. She is still currently unwell and undergoing treatment. I do not think she will recover fully until the difficulties referred to above have been addressed."
I interpose the comment that the difficulties to which she referred were the incident with Mrs Tetley when Mrs Beart had been told that she had to take a part-time afternoon job as an Administrative Officer and also her feeling that she had been badly treated, with very little contact from the employer's welfare office or personnel department, and that she had received next to nothing in writing concerning her position. The report continues:
"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."
The doctor offered to advise again, if necessary. That recommendation for relocation was a possibility provided for in the Prison Service Order, but it was never acted on. The report was only sent to Mrs Beart on 12th October 1998. When Mrs Beart went sick she received pay not at the rate at which she had been paid as a temporary Executive Officer but at the lower Administrative Officer grade; and after six months she only received half pay, which was stopped entirely from 1st July 1998 in the circumstances which I must now relate.
Mrs Beart had for some time prior to August 1997 run a business selling clothes at parties in private houses. She decided to turn that business into the running of a shop in the High Street in Sheerness and took a monthly lease of the shop. She initially employed a manageress to do all the work in the shop. In April 1998 the sister of the manageress took over the running of the shop with two part-time assistants. During the winter of 1997/1998 Mrs Beart did not work in the shop, though she prepared shift patterns for the staff, wrote cheques for stock and copied weekly accounts into a ledger.
The fact that Mrs Beart owned the shop was well-known to the staff and management of Swaleside, who had also known that she had been operating a clothes party business.
Mrs Beart used occasionally to visit the shop for company while she was ill, but the Tribunal said that they were satisfied that she did no work on such visits.
On 8th January 1998 Mr Neeves, the then head of Human Resources at Swaleside, wrote to Mrs Beart, saying:
"I remember during your conversations before you reported sick that you were running a clothes business part-time and that you were looking to work part-time at the Prison and open a shop and am concerned about the effect continuing this work may be having on your health.
As you are aware from the Staff Handbook, permission to carry on outside occupations will only be granted while it is unlikely to interfere with your official duties or impair your efficiency as a member of the Prison Service. When I consider applications on behalf of the Governor, sick leave is one of the factors taken into consideration. I have to inform you that any implied permission to do this work is withdrawn with immediate effect."
On 3rd April 1998 Mrs Beart was seen in the shop by Elizabeth Halton, who had succeeded Mrs Beart as temporary Executive Officer, and three other Swaleside members of staff. Ms Halton reported to Mrs Tetley Mrs Beart's presence in the shop and that Mrs Beart "sat behind a cash till", but she did not say that she was doing any specific work. The Tribunal found that Mrs Beart, while in the shop, needed to sit down and the available chair happened to be behind the cash till.
Mrs Tetley formed the view that she should investigate whether Mrs Beart was working in the shop at a time when she was claiming and receiving sick pay. In April 1998 she contacted and gave instructions to a private investigator, Mr Luck, to make five visits to the shop and to make a purchase from Mrs Beart, if she was seen to be working. Mr and Mrs Luck ("the Lucks") reported on 9th June 1998. As appears from their Schedule of Charges, they kept observation on four days without observing Mrs Beart at all, but had seen her at the shop on 8th and 9th June. On 8th June Mrs Beart unlocked the shop and shortly after 9.00 a.m., before any other staff had come in, Mrs Luck went into the shop and bought a child's football strip, for which Mrs Beart gave her a receipt. Mrs Luck reported that Mrs Beart told her that she was running two businesses, the shop and the clothes party business, that the strip came from party stock and that she spent about two hours a day doing the books. The Lucks reported that on 9th June they saw Mrs Beart unlock the shop, following which Mr Luck went in, before the shop's opening hour, and bought from her another football strip for a child. Mr Luck reported that she told him that besides running the shop she had held a full-time job until September 1997. It had all become too much for her. She had become depressed but was now feeling better since giving up full-time employment. She always got up at 6.00 a.m. and worked all day and in the evenings until 10.00 p.m. From the Schedule of Charges the observations on 8th and 9th June concluded at 9.45 a.m. The matters reported occupied about ten minutes on each of those days.
After receipt of the investigators' report on 10th June 1998 Mr Podmore wrote to Mrs Beart expressing the belief that she was working in her clothes shop while off sick and he asked for an explanation by 19th June. She did not comply, the Tribunal found, because she was too ill and unable to deal with correspondence.
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