HM PRISON SERVICE v JOHNSON

HM PRISON SERVICE v JOHNSON

Last Updated: 2:29am BST 13/09/2007

Employment Appeal Tribunal
Underhill J, P Tatlow, S Yeboah
August 6, 2007

Bullying - Disability discrimination - Findings of fact - Harassment - Justification - Misdirections on law - Reasonable adjustments - Unfair dismissal - Dismissal of disabled person because no prospect of return to work due to disability - s. 3a(1) Disability Discrimination Act 1995 - s. 4(2) Disability Discrimination Act 1995 - s. 5 Disability Discrimination Act 1995 - s. 18b Disability Discrimination Act 1995 - s. 4a Disability Discrimination Act 1995

FACTS

The appellant Prison Service appealed against a decision of the employment tribunal that it had discriminated against the respondent (J), who had been employed as a prison psychologist, for reasons relating to her disability. When J had started the job she told the Prison Service that she had two physical disabilities and she was provided with special equipment. From an early stage some of her colleagues, and a probation officer (H), allegedly bullied her, making hostile comments about her and her claim to be disabled. An investigation carried out by the Prison Service and, because of H's involvement, the Probation Service, upheld the complaints against a prison employee and H, but found insufficient grounds for action against the other employees. The Probation Service did not discipline H or remove her from the prison where J worked, and the prison governor decided that it would jeopardise relations with the Probation Service if he excluded H against their wishes. J received two pieces of anonymous mail, an in-house magazine supporting minority ethnic groups and a prison leaflet about harassment, bullying and discrimination. J thought they were suspicious and raised the issue with management, who thought it was likely to have an innocent explanation. J then received a third item sent anonymously, a newspaper advertisement for disability aids, at which point management arranged for the monitoring of her post. No further such items were received. J's employment was characterised by significant periods of sick leave, by her wish not to return to that prison, by her dissatisfaction with her treatment by management, and by the Prison Service's concerns about her performance. Her mental health declined until it reached the point where it qualified as a disability. When she had been off work for around 10 months she was dismissed on the basis of medical advice that there was no prospect of her returning in the foreseeable future.

She brought various claims to the employment tribunal, which found that the Prison Service had, by failing to exclude H, failed to take action to prevent further harassment following the internal investigation, and that was discrimination under the Disability Discrimination Act 1995 s. 3A(1). It further found that the Prison Service had failed to take appropriate and expeditious action about J's mail, thereby exposing her to an act of harassment, which failure constituted a detriment under s. 4(2) and s. 5. The tribunal also held that the Prison Service had failed to consider or to make reasonable adjustments, principally by not finding J an alternative place of work, contrary to s. 4A, s. 3A and s. 18B, and that it had dismissed her for reasons relating to her disability that were not justified. The Prison Service submitted that

(1) its decision not to exclude H from the prison could not have constituted disability discrimination because it had not been taken for a reason that related to J's disability;

(2) the tribunal had failed to make clear the precise basis on which it had been held liable in relation to the anonymous mail;

(3) the finding that it had breached its duty to consider reasonable adjustments was wrong in law, and the tribunal had failed to identify what the Prison Service should have done to make reasonable adjustments for J;

(4) its dismissal of J had been justified.

ISSUES

(i) Whether the Prison Service decision not to exclude H from the prison could not have constituted disability discrimination because it had not been taken for a reason that related to J's disability.

(ii) Whether the tribunal had failed to make clear the precise basis on which it had been held liable in relation to the anonymous mail.

(iii) Whether the finding that it had breached its duty to consider reasonable adjustments was wrong in law, and the tribunal had failed to identify what the Prison Service should have done to make reasonable adjustments for J.

(iv) Whether the Prison Service dismissal of J had been justified.

HELD (appeal allowed)

(i) It had not been open to the tribunal to conclude that J had suffered disability discrimination under s. 3A as on the basis of its own findings the prison governor's decision not to exclude H from the prison had been based on what he thought was in the best interests of the prison. The Prison Service's inadequate response to the problem was not of itself discrimination under s. 3A as it could not be established that J's disability had been, even partly, the reason for that response.

(ii) The tribunal had failed to make clear the precise basis on which the Prison Service had been held liable in relation to the mail and its finding in that respect had to be quashed. It may have intended to find liability on the basis that the Prison Service had exposed J to discrimination by a third party. However, the tribunal had misdirected itself in law in stating that the situation considered in Advocate General for Scotland v MacDonald [2003] UKHL 34, [2004] 1 All ER 339 and Burton v De Vere Hotels Ltd [1997] ICR 1 had to be distinguished from the case where an employer had been aware of a campaign of harassment against an employee and had taken no adequate steps to prevent it, Chessington World of Adventures Ltd v Reed [1998] ICR 97, MacDonald and Burton considered.

(iii) The tribunal had erred in finding breach of a duty to consider whether to make reasonable adjustments. The only question under s.4A was whether, objectively, the employer had or had not failed to make reasonable adjustments: his state of mind was irrelevant, so that the fact that he had not considered whether to make adjustments was immaterial if there were in fact none that he should have reasonably made, Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566 considered and Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664 applied. The finding that the Prison Service had breached its duty under s.4A to make reasonable adjustments was contaminated by the same error. Further, the tribunal had failed to identify with sufficient particularity the adjustments that the Prison Service should have made, Project Management Institute v Latif [2007] IRLR 579 applied. It was clear that in the final months of J's employment, once the Prison Service's medical adviser had confirmed that J could not return to a prison environment for the foreseeable future, the opportunity for reasonable adjustments had passed, but it was arguable that before that there had been failures to make reasonable adjustments. The issue was therefore remitted to a fresh tribunal.

(iv) It was wrong in law for the tribunal to find that J had been unlawfully dismissed as it could not even arguably be said that her dismissal had been outside the range of reasonable responses open to the Prison Service. Its failures during J's employment, however deplorable, were irrelevant when deciding whether it had been justified in dismissing J. She had been absent for 11 months and there was no prospect of her being able to return in the foreseeable future. It could not be the law that an employer was never justified in dismissing a disabled employee for whose disability he was partly to blame.

D Stilitz (instructed by the Treasury Solicitor) for the appellant. FJN Galbraith-Marten and E Williams (instructed by Beecham Peacock, Newcastle-upon-Tyne) for the respondent.