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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> HM Prison Service v. Johnson [2007] UKEAT 0420_06_0608 (6 August 2007) URL: http://www.bailii.org/uk/cases/UKEAT/2007/0420_06_0608.html Cite as: [2007] UKEAT 0420_06_0608, [2007] IRLR 951, [2007] UKEAT 420_6_608

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APPEARANCES

 

For the Appellant	Mr D Stilitz (of Counsel) Instructed by: The Treasury Solicitor – Employment Team One Kemble Street London WC2B 4TS
For the Respondent	Mr J N Galbraith-Marten (of Counsel) Mr E Williams (of Counsel) Instructed by: Messrs Beecham Peacock Solicitors 7 Collingwood Street Newcastle upon Tyne NE1 1JE


 


SUMMARY

Disability Discrimination – Less Favourable Treatment / Reasonable Adjustments / Justification

The Claimant was a prison psychologist who developed a depressive illness amounting to a disability within the terms of the 1995 Act following, and at least partly caused by, an episode of bullying at work. After a prolonged sickness absence she was dismissed for "medical inefficiency". The Tribunal found that the Prison Service had failed to make reasonable adjustments to accommodate her disability – principally by transferring her to other work - and that it had discriminated against her for reasons related to her disability in various specific respects including her dismissal.

Held that the Tribunal had misdirected itself as regards the reasonable adjustments claim by relying on Mid-Staffordshire General Hospitals NHS Trust v. Cambridge [2003] IRLR 566: which was disapproved in Tarbuck v. Sainsbury's Supermarkets Ltd. [2006] IRLR 664. The reasonable adjustments claim would have to be remitted in respect of the earlier period of her employment; but as regards the later period, it was clear that her condition had deteriorated to a point at which it was not reasonable to expect the Service to make the proposed adjustments, notwithstanding that that deterioration may have been caused or contributed to by earlier breaches, so that the claim in respect of that period fell to be dismissed.

Held that in relation to the discrimination claims, the Tribunal had wrongly failed to consider whether the disability-related factors on which it relied were the reason for the acts complained of and that if it had directed itself correctly it could not have found that they were. Taylor v. OCS Group Ltd. [2006] ICR 1602 relied on. Other misdirections also found: Macdonald v. Ministry of Defence [2003] ICR 937 and Project Management Institute v. Latif (UKEAT/0028/07) applied.
 


THE HONOURABLE MR JUSTICE UNDERHILL

INTRODUCTORY

1. The Respondent to this appeal, Ms. Diane Johnson, to whom we will refer as "the Claimant", trained as a psychologist following earlier careers in social work and as a teacher and lecturer. On 28 October 2002 she commenced employment with HM Prison Service, the Appellants^[1], as a prison psychologist at HMP Frankland, a high security prison in Co. Durham. It was her first job following the completion of her training. Her period of employment was not happy. Her managers were from the start concerned about her performance. She was the victim of a very unpleasant episode of hostile treatment by some of her colleagues, the consequences of which she believed – and the Tribunal found – were very poorly handled by her managers. She had two substantial periods of sickness absence in the course of 2003, at least in part anxiety-related. On 24 February 2004 she went off sick again, suffering from an adjustment disorder which developed into a more severe psychiatric illness. She never returned to work. By letter dated 31 January 2005 she was dismissed on grounds of medical inefficiency. She appealed, but on 22 July 2005 her appeal was dismissed.
2. The Claimant brought four Employment Tribunal claims against the Appellants – nos. 2503737/03 (presented on 27 June 2003), 2500294/04 (presented on 19 January 2004), 2500723/04 (presented on 5 February 2004) and 2500599/05 (presented on 4 February 2005) – which were subsequently consolidated. The first three were commenced during the currency of her employment and raised complaints about various aspects of her treatment by the Appellants, principally under the Disability Discrimination Act 1995. The last followed her dismissal and raised complaints both under the 1995 Act and of unfair dismissal. Following a three-day preliminary hearing on 22 March 2005 (at which time the Claimant's appeal against dismissal was pending) a Tribunal Chairman (Mr. Garnon) promulgated a thorough and carefully-reasoned Judgment on the issue of the nature and date of onset of the Claimant's disability: as to this, see para 6-9 below. As a result of his findings, the first of the Claimant's four claims was dismissed. There was a case management discussion on the remaining three claims on 1 September 2005 at which a list of issues was agreed.
3. The claims came on for hearing in February 2006 before an Employment Tribunal sitting at Thornaby on Tees, chaired by Dr. Watt: we refer to this Tribunal, where it is necessary to distinguish it from the Tribunal comprised by Mr. Garnon, as "the Watt Tribunal". The Claimant was unrepresented, as she had been throughout the proceedings, and appeared in person. The Appellants were represented by Mr Daniel Stilitz of counsel. There were twenty days of evidence and submissions, followed by three days' deliberation by the Tribunal in chambers.
4. The Tribunal's decision was promulgated on 5 June 2006. It consists of a formal Judgment in fourteen numbered paragraphs followed by very full Reasons running to some 90 pages of single-spaced type. Great care evidently went into the drafting of the decision, but we are bound to say that we have not found it very easy to work with because the findings of fact are organised not chronologically but in a series of sections by reference to different themes or subject-matters: this has the result, for example, that the findings relating to the Claimant's dismissal precede the Tribunal's discussion of most of the events leading up to that dismissal. While we quite understand the Chairman's desire to impose some kind of structure on a mass of detailed material, an appellate tribunal is always greatly assisted by a clear chronological narrative of the facts out of which the issues arise. We will have to analyse some aspects of what the Tribunal decided in more detail below, but at this stage the key decisions can be summarised as follows:

(1) It found that the Claimant had been unfairly dismissed applying the criteria in s. 98 of the Employment Rights Act 1996.

(2) It also found that there had been "automatic" unfair dismissal under s. 98A of the 1996 Act.

(3) It found that the Appellants had discriminated against the Claimant contrary to the 1995 Act in a number of the respects of which she complained, including her ultimate dismissal. But many other of the complaints of discrimination identified in the order of 1 September 2005 were either explicitly dismissed or otherwise not upheld.

5. This appeal is against the decision of the Watt Tribunal. The Appellants do not challenge the findings of unfair dismissal; but they do challenge the entirety of the findings of disability discrimination. The Notice of Appeal contains no fewer than twenty Grounds of Appeal. Two were disallowed following a preliminary hearing in this Tribunal, but the remainder are live. In the appeal before us the Appellants have again been represented by Mr. Stilitz. The Claimant has had the advantage of being represented by Mr. Jason Galbraith-Marten and Mr Edmund Williams. We are indebted to them all for the high quality of both their written and their oral submissions.

THE CLAIMANT'S DISABILITY

6. It is necessary to start by summarising Mr. Garnon's findings as to the Claimant's disability. These were not appealed by either party and accordingly constituted the basis on which the Watt Tribunal was obliged to, and did, proceed.
7. When she applied for a job in the Prison Service the Claimant told the Appellants that she suffered from two significant physical disabilities. These were (a) a series of connected arthritic problems in her neck, lower back, and left shoulder, all of which she attributed to a fall in 1996 and (b) a problem with her right knee which she attributed to an accident in 2002. As a result, she was granted a guaranteed interview in accordance with the Appellants' special procedures relating to applicants with a disability; and following her appointment she was provided with a special chair and other equipment in order to help her with what were understood to be her problems. In fact, however, the orthopaedic evidence considered by Mr. Garnon showed no organic basis for symptoms of the persistence and severity of those of which she complained. What Mr. Garnon found, on the basis of the psychiatric evidence (and in particular a report dated dated 13 December 2004 from Dr. Tyrie, who was jointly instructed by both parties for the purpose of the preliminary issue), was that the pain and physical symptoms of which the Claimant complained at the time that she was employed or thereafter were not explicable by reference to the physical injuries that she had suffered but constituted "psychosomatic overlay".
8. Although that finding necessarily implies that the Claimant was suffering from a mental condition of some kind at the start of her employment, Mr. Garnon did not find that she was at that point suffering from a disability within the meaning of the 1995 Act; but he found that she did subsequently develop a mental illness of sufficient seriousness to constitute such a disability. Specifically, he found that "from 19 September 2003 but no earlier" she suffered from a disability consisting of "the mental illnesses ICD 10 codes F43.23 developing to F41.2 and none other" (see para. 5.9): the mental illnesses thus denominated are "an adjustment disorder with predominant disturbance of emotions including anxiety, depression, worry, tension and anger", developing to a "mixed anxiety and depressive disorder" (see para. 3.22). The date of 19 September 2003 was taken because it was the date at which the Claimant was first prescribed anti-depressants by her GP.
9. Mr. Garnon was not required to make any findings as to the cause of the mental condition from which he found that the Claimant suffered. As will appear, there was considerable evidence before the Watt Tribunal to the effect that her illness was at least substantially contributed to by her situation at work – initially the mistreatment which she suffered from her colleagues and subsequently her perception that the management were not taking sufficient steps to protect and rehabilitate her. But the evidence before Mr. Garnon also established that the Claimant had prior to her employment a significant previous psychiatric history and was vulnerable to developing further mental illness in response to a stressful situation.
10. It should be noted that the Claimant did not disclose any psychiatric history to the Appellants at the time she was recruited. They were accordingly at that stage unaware of any psychological or psychiatric vulnerability.

THE FACTS

11. The Tribunal's final findings are extremely detailed. We summarise them here only to the extent necessary to deal with the issues in this appeal. The Claimant's employment can be conveniently divided into four periods:

(1) 28 October 2002 – 9 September 2003. This is, roughly, the first year of the Claimant's employment. The principal feature which it is necessary to describe is the episode of hostile behaviour from her colleagues of which the Claimant was the victim and the consequences of it (including the so-called "Graham/Blackburn investigation"), culminating in her first period of sickness absence. During this period the Claimant was not disabled.

(2) 9 September 2003 – 25 February 2004. This covers the period from the Claimant's return to work after her first sickness absence up to the date when she ceased work for good (as it turned out). It also covers her second sickness absence and an episode when she was the victim of malicious mail.

(3) 25 February 2004 – 13 January 2005. This covers the period of the Claimant's final sickness absence, up to the taking of the dismissal decision.

(4) 13 January 2005 – 22 July 2005. This is the period between the Claimant's dismissal and the rejection of her appeal.

12. It is convenient by way of preliminary to give a short dramatis personae. The Governor of Frankland throughout the time of the Claimant's employment was Phil Copple. The Head of Psychology was Gavin O'Malley. The Claimant's immediate line manager was Jonathon Downing. The Head of Personnel was at first Janet Ringrow. Ms. Ringrow was not well and, according to the Tribunal, 'not coping with her work' and she left at some point in early 2004. Janette Liddell initially worked under Ms. Ringrow and succeeded her on an acting basis. The Claimant was a member of the Public and Commercial Services Union ("PCSU"). The PCSU officer first concerned with her case was Ms. Fox. Subsequently it was handled by Mr. Withers.

(1) 28 OCTOBER 2002 – 9 SEPTEMBER 2003

13. The Claimant's appointment was (as was standard) on the basis of a probationary period of twelve months. There were from the start concerns, which the Tribunal found to be justified, about the quality of her work, and in particular about the way in which she inter-acted with prisoners; but the details of those concerns are not important for present purposes.
14. From an early stage in her employment a group of her colleagues took a dislike to the Claimant which was manifested both in their general conduct towards her and in a series of very unpleasant comments made about her, both behind her back and in her presence. The comments in question concerned both her personality generally and, more particularly, her claim to be physically disabled. She was herself reluctant to take the matter up formally, but other colleagues – including one called Alison Bain - were concerned on her behalf and the matter did eventually come to the attention of management. In May 2003 Mr. Copple asked one of his Governors, Mr. Graham, to conduct a formal investigation. Because some of the allegations related to a probation officer working at Frankland, Fiona Hunter, who was employed not by the Appellants but by the Co. Durham Probation Service, a Senior Probation Officer called Karen Blackburn was appointed to assist Mr. Graham. The investigation has for convenience been referred to as the Graham/Blackburn investigation. Eight allegations were referred to Graham/Blackburn, involving four Prison Service employees as well as Ms. Hunter.
15. On 5 August 2003 the Graham/Blackburn investigation report was submitted to Mr. Copple. Mr. Graham and Ms. Blackburn upheld two complaints. They found that Ms. Hunter had referred to the Claimant as a "charlatan" and a "liar" in relation to her disability, and they recommended disciplinary action against her. They also found that Peter Thompson, a psychological assistant, had made inappropriate comments about the Claimant's performance at a training session, and recommended that he should be given formal advice about his conduct. No action was recommended in relation to the remaining six allegations, but it is important to appreciate that the report did not find that they were ill-founded: it found merely that there were "insufficient grounds for action" against the staff concerned - principally, it seems, because of the difficulty of establishing with certainty which individuals had been responsible for the offensive remarks made.
16. Mr. Thompson was duly spoken to. As for Ms. Hunter, because she was not employed by the Appellants, Mr. Copple on 7 August 2003 wrote to the Probation Service explaining the results of the investigation and raising the question whether she should remain at Frankland. On 27 August the Probation Service told Mr. Copple that they would not be taking any disciplinary action against Ms. Hunter. His evidence, which the Tribunal appears to have accepted, was that he was dismayed and took the matter up with his opposite number, Ms. McPhee, in mid-September; but she was not prepared to change her position. In the light of those exchanges, although it would have been open to Mr. Copple to exclude Ms. Hunter from the prison, he decided not to do so, on the basis that he had no power to discipline her and it would have jeopardised relations with the Probation Service had he excluded her against their wishes.
17. The Tribunal described the Graham/Blackburn investigation and report as "in many senses deeply flawed" (Reasons para. 54), for reasons which are given at paras. 8.69-8.73. This criticism was not as such one of its findings of discrimination, and we need not set out the detailed grounds for it. The central points are that the Graham/Blackburn investigation revealed the existence of an unpleasant culture of gossip, backbiting and hostile behaviour in the Psychology Department, and of hostility to the Claimant in particular; but that the investigators, and Mr. Copple following receipt of their report, approached the matter by way of a minimalist "analysis of whether [each] individual allegation could form the basis of disciplinary charges". Having decided what action to take against the only two identified perpetrators (which, as appears above, did not in the end amount to much) the Appellants regarded the issue as closed. This left the underlying problem about the Claimant's peers' attitude towards her largely unaddressed. In response to this criticism, the Appellants contend that the Tribunal "erred in seeking to go behind the findings of the Graham/Blackburn report" – see Ground 18 of the Notice of Appeal. We do not believe that that is fair. The Tribunal was not objecting to such findings as the investigators made, having regard to their terms of reference as they interpreted them: it was objecting to the Appellants treating the investigators' findings, on terms so narrowly defined, as definitive. In our view the Tribunal was entitled to say what it did.
18. The period of the Graham/Blackburn investigation was, for obvious reasons, stressful for the Claimant. The original problem was exacerbated by the process of the investigation, which rendered her even less popular with her colleagues. She had also, in June 2003, commenced Employment Tribunal proceedings. She wanted to move out of the Psychology Department at Frankland. She discussed this with both Mr. O'Malley and Ms. Liddell. In the course of June 2003 she tried to explore a move to the Dangerous and Severe Personality Disorder ("DSPD") Unit at Frankland but that did not prove possible. Following pressure from Ms. Fox, who emphasised her concern for her "emotional wellbeing", the Claimant was moved by way of "detached duty" to HMYOI Deerbolt, which was nearby, commencing on 28 July 2003. The move was welcome to her because Ms. Bain, with whom (at that point) she got on well, had recently become Head of Psychology at Deerbolt; but it was for a three-month period only. She pressed for a permanent transfer on compassionate grounds but she was told that this would not be possible, principally – it appears – because the relevant rules did not permit transfer for an employee who was still on probation. Although the transfer to Deerbolt was made by Mr. O'Malley, on compassionate grounds, the Tribunal found that this was only as a result of the initiative of the Claimant and Ms. Fox and that the Appellants were insufficiently proactive in helping her in what was an unfortunate predicament not of her own making.
19. The move to Deerbolt did not relieve the pressure which the Claimant was feeling, which she communicated both to Ms. Bain and to the Appellants' staff welfare department and others. On 4 August 2003, i.e. very shortly after her transfer to Deerbolt, she went off sick with a diagnosis of anxiety and stress. She remained off work for five weeks. On 11 September her GP, Dr. Oliver, wrote to Ms. Ringrow confirming the diagnosis of an anxiety state and attributing it to the treatment which the Claimant had experienced from her colleagues. She passed on, and supported, a suggestion from the Claimant that when she returned to Frankland she should work in a different unit. It is the Claimant's case that from this point onwards the Appellants should have been aware that she might be suffering from a psychological or psychiatric condition; and it was of course very shortly after this date that she was first prescribed anti-depressants and that, on Mr. Garnon's findings, she first began to suffer from a disability within the meaning of the 1995 Act.

(2) 9 SEPTEMBER 2003 – 25 FEBRUARY 2004

20. The Claimant returned to Deerbolt on 9 September 2003. She had a meeting with Mr. Downing and Ms. Bain that day with a view to reviewing her performance, which they made clear had not reached an adequate standard. It was agreed that a development plan needed to be established for the Claimant, and she and Ms. Bain met again on 11 September to discuss this. The Tribunal found (see in particular paras. 8.79-8.81 of the Reasons) that the tone of the meeting of 9 September was much more critical than anything that the Claimant had previously encountered. Although the Appellants had from an early stage had concerns about her performance, the way in which those concerns had been communicated had been muted. The Tribunal was critical of the Appellants, and Mr. Downing in particular, for failing initially to bring home to the Claimant the extent of their concerns and then changing tack so dramatically and at such a sensitive time. Again, however, this is not – and could not have been, given the date – a finding of disability discrimination.

Dr. Almond's report

21. Very shortly after her return the Claimant became ill again, apparently with an acute abdominal condition which required surgery. She was absent sick from 22 September to 14 November. Although her absence was initially caused by the physical condition, it appears that there was also concern about her mental state. At the Appellants' request she was seen by Dr. Almond, of BMI Health Services ("BMI"). She reported on 4 November that the Claimant had made a good recovery from her abdominal problem. But she continued:

"With regard to her mental health, Ms Johnson remains emotionally fragile and vulnerable. However, I am of the opinion that it is better for her general and mental wellbeing to be at work rather than remain absent. As such, a supported period of rehabilitation and graduated return as from this week is appropriate.

I am aware of some of the complex interpersonal issues that are perceived as having given rise to Ms Johnson's ill health. As such, when she returns to work she needs to be recognised as vulnerable, with sensitivity given to the past workplace circumstances. As such, it is recommended that she returns to an environment in which increased line manager support is available over and above that that might usually be expected for an individual of her age and experience. Care should be taken that regular opportunity for feedback is available in order that any issues or concerns arising out of work can be aired and addressed. You may wish to consider allocation to a mentor to facilitate support."

She then gave answers to various specific questions raised, which did not essentially add to what she had already said (though she expressed approval of a plan suggested by the Claimant for a phased return to work). Under the heading "Procedural Issues", she said:

"It is my opinion, having considered the medical evidence available, that Ms Johnson's recent anxiety-related ill health is unlikely to be considered a disability as meant by the Disability Discrimination Act 1995. This may well apply to her physical restrictions that pre-date her employment with the Prison Service, but establishing whether or not this is the case was not the purpose of this assessment and therefore I am unable to comment further.

Apart from the above there are no other medical issues of which management need to be aware when considering any administrative action deemed appropriate. Ms Johnson is vulnerable and any such action should be handled with appropriate sensitivity."

22. Dr. Almond's letter is of importance because it represents the first occasion that the Appellants received advice from their own advisers that the Claimant was psychologically vulnerable. It should however be noted that – contrary, as it happens, to both aspects of Mr. Garnon's findings - Dr. Almond expressed the view that the Claimant's "anxiety-related ill health" probably did not amount to a disability but that her physical symptoms might.
23. At para. 8.16 of the Reasons the Tribunal found that, just before Dr. Almond saw the Claimant, she received a long telephone call from Ms. Ringrow. It was the Claimant's case that in the course of that conversation Ms. Ringrow tried to prejudice Dr. Almond's conclusions. The Tribunal makes no finding in this paragraph on that allegation, but two later paragraphs (paras. 8.40 and 8.92 – but as to these see para. 24 below) make clear that it gave it some credence. Neither Ms. Ringrow nor Dr. Almond gave evidence, and there was accordingly no opportunity for the matter to be explored directly. We are sure that no implication of improper pressure ought to be made from the mere fact of the conversation taking place. There is nothing wrong in principle in an HR professional seeking to impart relevant information, or indeed opinions, to an occupational health doctor: doctors giving advice to employers, particularly in difficult situations involving stress at work, need to have information from all relevant sources. Of course such information and opinions should be imparted in a professional way, and they should not be treated by the doctor receiving them as having any more status than what he or she may learn from other sources (and in particular from the employee). There is nothing in Dr. Almond's report to suggest that she was in fact prejudiced against the Claimant in any way by what she had heard from Ms. Ringrow. The Tribunal also found that Ms. Ringrow did not mention to Dr. Almond the letter which the Appellants had received from Dr. Oliver. No doubt ideally she should have done, but the omission is not necessarily sinister.
24. The episode of Ms. Ringrow's conversation with Dr. Almond is not by itself of central importance but it requires to be mentioned in this summary because of an unfortunate mistake made by the Tribunal in para. 8.40 of the Reasons, where it attributes the conversation to Ms. Liddell. In that paragraph the Tribunal was highly critical of a letter written by Ms. Liddell on a later occasion which it regarded as an inappropriate attempt to influence a different doctor (as to this see paras. 33-35 below) and it observed that the criticisms which it there made "lend strong credence to the claimant's contention that Ms. Liddell spoke to Dr. Almond … with a view to prejudicing Dr. Almond's judgment". If, as seems to be the case (see also para. 8.92), this represents a finding by the Tribunal that an attempt was made to prejudice Dr. Almond, that finding cannot stand. Mr. Galbraith-Marten submitted that it remained valid since the essential criticism was not of a particular individual but of the HR department; but it would not be safe for us to accept that submission. No doubt sometimes members of a department do share common prejudices or practices, but that is not necessarily the case and it would be wrong to condemn Ms. Ringrow's conduct on a particular occasion on the basis of the conduct of a different person on a different occasion. The Tribunal's error in this regard is the subject of Ground 13 of the Appellants' Notice of Appeal; but although we formally uphold that Ground it does not impinge directly on any of the Tribunal's findings of liability.

The extension of the Claimant's probation

25. On 24 October 2003, while the Claimant was still off work, Mr. O'Malley, with Mr. Downing and Ms. Ringrow, met her and Ms. Fox. Mr. O'Malley said that he was not prepared to sign off her probationary period, which would accordingly be extended. (He also said that he needed a report from an occupational health doctor before she returned to work: it was this which led to the referral to Dr. Almond.) The reasons for the extension of the Claimant's probationary period were discussed further at a meeting on 12 November. In order to assist the Claimant, Mr. O'Malley and Mr. Downing arranged for Angela Taylor, Principal Psychologist at Low Newton (another nearby establishment), to provide the Claimant with additional supervision. That supervision commenced in December 2003, following her return to work, and continued into 2004.
26. The decision to extend the Claimant's probation is not very surprising, given the fact that there had been concerns about her performance from an early stage in her employment and that her work over most of the year had been disrupted by the episode of the investigation, her move to Deerbolt and two substantial sickness absences. The Claimant however was aggrieved by it and in January 2004 started the second of her Employment Tribunal claims, which complained of the extension of the probation period (together with other matters which had occurred since her first claim was launched). The Tribunal found that the decision to extend her probation period was justified and that there were indeed genuine grounds for concern about the standard of the Claimant's work (Reasons, para. 63). It was nevertheless critical of the Appellants and found that the Claimant's failure to improve was largely the result of their failure to give her proper support. On the face of it, that criticism may seem rather harsh, since the steps identified in para. 25 above do appear to be the kind of supportive measures which Dr. Almond had recommended; and the Tribunal's finding in this regard is challenged as perverse at Ground 17 of the Notice of Appeal. The issue does not feed directly into any of the findings of liability, and it is accordingly not necessary for us to reach a concluded view on it. But we are inclined to think that the Tribunal was entitled to make the finding that it did. The steps initiated by the Appellants may look good on paper, but the Tribunal was sceptical about whether they corresponded to what happened on the ground. It was particularly critical of Mr. Downing (of whom it clearly formed a low opinion generally) for his conduct in meetings with the Claimant and for his delays in progressing the promised development plan which was central to the attempts to assist the Claimant in reaching the necessary standards.

The malicious mail incident

27. In December 2003 the Claimant received through the internal post a copy of the Appellants' "Respect" magazine, which is part of its system of support for minority ethnic groups. The sending of the magazine to her was unexplained but she took no steps to complain or investigate at that stage. However, on 19 January 2004 she received a copy of a Prison Service leaflet entitled "Are you being harassed, bullied or discriminated against?". She considered this, taken with her earlier receipt of "Respect", to be suspicious. She raised it with Mr. Downing. He said that there was likely to be an innocent explanation and suggested that she speak to Mr. Greener, the Appellants' equality officer, who he thought might have sent the materials or who might know who did. The Tribunal's comments on Mr. Downing's reaction, in para. 8.97 of the Reasons, are as follows:

"Had this arisen in isolation Mr Downing's rather casual approach to this matter may have been appropriate. However this was against a background as Mr Downing well knew of Mr Graham having found very serious discriminatory acts directed towards the Claimant personally. He was also fully aware of the impact of those events on the Claimant's health and well being. This should therefore have set the alarm bells ringing with Mr Downing but it did not do so. This perhaps gives further weight to the overall view that Mr Downing throughout this matter showed a distinct lack of concern. There are certainly written documents in the form of notes and letters that say the right sort of things. But in this instance as in others Mr Downing's actual acts and omissions belie the declarations of concern."

28. On 2 February 2004 the Claimant also received anonymously through the post a newspaper advertisement for "Disability Aids". She complained again to Mr. Downing, who acknowledged that this seemed suspicious and set up a system for monitoring the Claimant's post. No further suspicious or anonymous items were received by the Claimant thereafter. The Tribunal's comment, at para. 8.100 of the Reasons, was as follows:

"If Mr Downing had acted promptly when the Claimant had first raised this matter then the most distressing of the three items would not have reached the Claimant.  The advertisement for disability aids clearly intended to offend and was sent with discriminatory intent to harass the Claimant.  This conduct was entirely consistent with the discriminatory acts found proven by Mr Graham's investigation.  In all the circumstances the respondent should have acted from the inception and that would have prevented this third item reaching the Claimant." 

29. On 4 February 2004 the Claimant made a formal complaint to Mr. Atherton, the Deputy Director of the Prison Service, about the extension of her probationary period and also about the malicious mail incident. Mr. Atherton asked Salina Bowen, the Head of HR for the Directorate of High Security Prisons, to investigate her grievance about the extension of her probation. To anticipate, Ms. Bowen's investigation continued until 23 July 2004. Her report exposed a number of shortcomings in the Appellants' handling of the Claimant's probationary period but her recommendation was that the grievance be rejected because the Claimant had not established discrimination or harassment. Mr. Atherton accepted that recommendation. The Tribunal was critical of his approach and Ms. Bowen's, describing it as narrow and legalistic (Reasons paras. 8.105-106); but we need reach no view on the validity of that criticism for the purpose of this appeal. The investigation into the malicious mail incident was conducted by a Mr. Eggleston: he was unable to establish who had sent the offending items.

The meeting of 24 February 2005

30. On 24 February 2004 Mr. O'Malley and Mr. Downing met the Claimant to discuss her supervised practice with Ms. Taylor and her professional development more generally. The Claimant said that she did not want to proceed with the development plan or her work with Ms. Taylor for the time being. She said that she was not able to concentrate while her Employment Tribunal claims and the Bowen investigation were proceeding. She made it clear that her mood was low and she felt in poor health. Mr. O'Malley stressed the importance of Ms. Taylor's supervision to the Claimant's work and professional deve1opment. The Tribunal's account of the meeting, which was obviously an important one, is limited, and Mr. Stilitz showed us the witness statements of Mr. O'Malley and Mr. Downing by way of amplification. They say that the Claimant 'walked out' of the meeting; but we are not clear that their account would be accepted in full by the Claimant. In any event, the following day she telephoned Mr. Downing to say that she was going off sick. She complained of what she said had been Mr. O'Malley's unsympathetic attitude the previous day. She remained off work with anxiety-related symptoms for the remainder of her employment.

(C) 25 FEBRUARY 2004 – 13 JANUARY 2005

31. The Claimant was, as we have said, off sick from 25 February 2004 until her dismissal with effect from 31 January 2005. During those eleven months her medical condition was being considered in several different, though overlapping, contexts. She was receiving primary care from her GP, Dr. Oliver, who referred her for specialist psychiatric opinion. Advice was also sought by her trade union. So far as the Appellants are concerned, they had in due course to consider the Claimant's health in relation to her future employment: for this purpose they took advice from an occupational health business called Atos Origin ("Atos"). But the Claimant also had claims for "sick leave excusal" (as to this, see para. 32 below), on which the Appellants were seeking advice from BMI. Finally, in the autumn of 2004 both parties sought an expert opinion from Dr. Tyrie for the purpose of the ongoing Employment Tribunal proceedings. As we shall have occasion to note below, these strands of advice were not well co-ordinated. We need not set out the entirety of the steps taken; but we need to give some more detail about the sick leave excusal and future employment strands. In the interests of clarity we will deal with them in turn, though they cover the same period.

Sick leave excusal

32. Sick leave excusal means that a person who has been absent sick receives ordinary pay rather than sick pay in respect of the period of absence. Under the applicable Prison Service Order ("PSO"), it is granted where the sickness in question has been caused by an assault, accident or disease contracted on duty (a "qualifying injury"). The decision whether to grant sick leave excusal is ultimately for the management, but it is required to obtain medical advice. The Claimant sought sick leave excusal in relation both to her first period of sickness absence (August-September 2003) and to her absence from 24 February 2004: the application in the latter regard was made on 25 April 2004.
33. Both applications were referred to BMI for advice. On 21 July 2004 Ms. Liddell wrote to BMI in the following terms:

"Re: Sick Excusal

Please find the enclosed file for Ms D Johnson who we referred to you in June 2004 for medical advice.  Ms Johnson has subsequently asked for an excusal for 2 periods of absence for work related stress due to the episodes of discrimination and resulting in an investigation, from 04/08/03 to 09/09/03 and 25/02/04 to present.

Ms Johnson's line management feel the periods of absence are not solely stress related due to these events.  Ms Johnson claimed discrimination on the grounds of disability against 4 prison service colleagues and 1 probation service colleague.  An investigation was carried out and found nothing to answer on behalf of the prison service staff and advised the probation service to take action against their employee.  We would argue that Ms Johnson was fully supported by management during and after the investigation and believe that Ms Johnson's period of absence is because she cannot carry out her duties to the required standard.  A development plan has been set up to address her performance.  It is felt that she reported sick due to the fact she may be dismissed, because she did not feel able to meet the standards of work required.  Dr's certificates state she is stressed however, if this is so, it is our opinion that it is not wholly as a result of the investigation.

Ms Johnson has currently 3 Employment Tribunal cases going on against the Prison Service, which she has lodged herself."

34. The Tribunal was highly critical of the terms of this letter. At para. 8.21 of its Reasons it said this:

"In the light of the evidence this letter is demonstrably inaccurate, misleading and highly tendentious in the terms in which it is expressed. Moreover, the impression of a complete absence of sympathy for the Claimant's situation is inescapable. That unfortunately forms part of a consistent pattern emanating particularly from the personnel department. However, the information on which this letter is based, presumably, must have come from the Claimant's line managers."

And at para. 8.40 it said:

"In that letter Ms Liddell opposes the claimant's interest by distorting the truth. Ms Liddell in her letter contended that there had been no findings against the Prison staff. That was untrue because there were findings of fact of inappropriate conduct against Mr Thompson and others. As Ms Liddell was well aware there were findings of a very substantial nature against Ms Hunter and the distinction she made regarding employment status was intended to mislead. Therefore when she wrote that letter Ms Liddell knew that the claimant had been subject to serious discrimination in her workplace. Accordingly, the respondent's representations concerning this matter cannot be regarded merely as incompetence this is evidence of quite unacceptable conduct that suggests that the respondents was acting in bad faith."

35. We are bound to say that we regard the Tribunal's criticisms of Ms. Liddell's letter as over-stated. Under the Appellants' sick leave system advice on whether an employee satisfies the criteria for excusal is required from the medical advisers, but the issue which they are required to determine will not always depend entirely on facts which those advisers are in a position to ascertain as doctors: that is particularly so in cases where the injury alleged is said to be the result of harassment by colleagues or managers. As we have already observed (see para. 24 above), we can see no objection in principle to Prison Service management drawing the attention of the advisers to circumstances which they believe to be relevant or indeed advancing arguments against excusal: the employee will equally be giving the doctor his or her side of the story. Any such representations should of course be accurate and stated in professional and moderate terms. Ms. Liddell's letter can no doubt be criticised. The account of the Graham/Blackburn findings was inaccurate in that it overlooked the finding against Mr. Thompson. More generally, it tended to convey the impression that the other members of staff had been definitively acquitted, when in truth the verdict was closer to "not proven". More generally still, the Tribunal may have been entitled to detect in it a lack of sympathy towards the Claimant. But the central message of the letter – namely that the absences in respect of which the Claimant was seeking excusal were not primarily due to the conduct which Graham/Blackburn had investigated – was one which, rightly or wrongly, the Prison Service genuinely believed to be true and which it was entitled to convey to BMI. We can see nothing to justify the Tribunal's 'suggestion' of bad faith or its finding of a deliberate intention to mislead. Mr. Stilitz did not believe that this very serious allegation was ever squarely put to Ms. Liddell.
36. The Tribunal's handling of this episode exemplifies a problem which we have found with the tone of many of the findings in the Reasons. The language in which the Tribunal expresses its criticisms of the Appellants is often highly-coloured. This will be apparent from some of the passages that we quote; and elsewhere we find such terms as 'atrocious', 'astonishing' and 'failed miserably'. Tribunals are entitled to use strong words when dealing with conduct which merits it: there is no duty to be bland. In this case the Tribunal evidently felt that the Claimant had been very badly treated by the Appellants. It had the full evidence before it and saw and heard the witnesses, and we would be very slow to find that that overall judgment of the Appellants' conduct was unfair. But the very vehemence with which it is expressed raises a suspicion, which Mr. Stilitz understandably urged on us, that the Tribunal's indignation clouded its judgment. We have had to do our best to look behind the epithets and focus on the actual issues.
37. On 5 October 2004 Dr. Collins of BMI gave an opinion that the Claimant qualified for sick leave excusal in relation to the first absence, but he told the Appellants that his information was incomplete as regards the second absence. He said that he was aware that Atos had been instructed to advise on other aspects but that he had no further information (Reasons para. 8.30). On 30 November Miss Potts of the Personnel Department at Frankland sent him, rather belatedly, a certain amount of further information (Reasons para. 8.31). On 4 January 2005 a Dr. Adeodu of BMI wrote to the Appellants stating that the illness giving rise to the latter absence did not constitute a qualifying injury. Accordingly in the letter of 13 January 2005 to which we refer below (see para. 49) Mr. Copple told the Claimant that the first application was granted but that the second was refused.

Consideration of the Claimant's future employment

38. In June 2004, when the Claimant had been absent for nearly three months, the Appellants sought advice on her condition from Atos. On 24 June 2004 Dr. Welch of Atos reported. He confirmed Dr. Almond's earlier view that the Claimant was "emotionally labile and vulnerable". He recorded her complaints about the way she perceived herself as having been treated and her view that she would not be able to return to work until the outcome of Ms. Bowen's investigation was known. He also recorded a proposal from her that she should be "seconded" to a university for twelve months. He appeared (though his language is rather oblique) to support either this secondment proposal or some other transfer within the High Security Directorate as a way of removing the Claimant from what she perceived to be a hostile environment at Frankland. He stressed the difficulty and sensitivity of the situation. But he made it clear that if proper support were put in place, involving "a period of rehabilitation" and "a continued period of development", there was no reason why she should not return to work.
39. On 6 August 2004 Ms. Liddell met the Claimant at her home in order to explore the possibility of her return to work. There was some discussion of whether it was intended that she should be transferred to another prison. Ms. Liddell conveyed to the Claimant a proposal that she return to work for an initial three-month period not at Frankland but at Low Newton. The Claimant said (according to the Appellants' note of the interview) that:

"… she would not go to Low Newton.  She was employed by HMP Frankland and was not willing to go anywhere else, as she had done nothing wrong.  [She] stated that she did not feel she had the level of performance issues that had been alleged that she had, and said part of the investigation [i.e. Ms. Bowen's investigation] related to this issue." 

Ms. Liddell asked again if the Claimant would be willing to consider a placement at Low Newton. As to this:

"[She] said she would have to wait to find out what was happening in the future.  [She] said she was not willing to discuss a return to work until the investigation … results were disclosed to her, only then can she move forward."

The Claimant repeated her suggestion, already reported by Dr. Welch, that she should be allowed a year's secondment to university "to build back her confidence and self-esteem". The university which she had in mind was Portsmouth, which had expressed itself willing to accept her for a Ph. D. It appears that the area of study which she had in mind related to the reliability of eye-witness testimony.

40. On 23 August 2004 Mr Atherton wrote to the Claimant, rejecting her grievance complaints in accordance with Ms. Bowen's recommendation. Since that disposed of the question whether the extension of her probation was objectionable, Mr. O'Malley on 26 August wrote to the Claimant seeking to set out "a constructive way forward for you in terms of your return to work". He referred to his previously expressed views that she would benefit from supervision from Ms. Taylor. He emphasised the importance of the existing development plan as a way of resolving the concerns about her performance. He referred to Dr. Welch's report and to his view that she would need support, a period of rehabilitation and a continued period of development. He continued:

"To this end, I intend for you to return to work at HMP Low Newton where you will be provided with regular supervision from Angela. As I am sure you are aware, the Psychology Team at Low Newton is smaller in comparison to Frankland, enabling you to benefit from the additional professional support that Angela is able to provide. Low Newton also has the benefit of being in close proximity to Frankland, enabling us to keep in face to face contact with you. Furthermore, Low Newton affords the added benefit of providing you with continuity of supervision given that Angela has worked with you in the past in a supervisory capacity.

I am aware that, due to the issues that have gone before, a direct return from sickness to Frankland may be a difficult experience for you. I am concerned that the anxieties that this arrangement is likely to provoke for you could impair your ability to perform to the required standards and meet the objectives set out in your development plan. For this reason, I am of the view that Low Newton represents the best choice of location for you during the first three months of your return to work.

It is hoped that, at the end of a three month period of sustained improvement in your performance and attendance at Low Newton, your probation period can be signed off successfully. At this stage, your line-managers would want to discuss with you how your return to Frankland should take place, talking into consideration your views on the matter of course."

He said that his proposal was subject to medical confirmation that the Claimant was medically fit to return to work and that Low Newton was a suitable working environment for her and that Atos or BMI would be consulted on that issue.

41. This proposal was not acceptable to the Claimant. She had in the meantime been receiving treatment from a psychiatric consultant, Dr. Hariram, who had diagnosed severe post traumatic stress disorder (though this diagnosis was later disapproved by Dr. Tyrie). A letter from him dated 14 September 2004 setting out that diagnosis and referring to "repeated and prolonged traumatic experiences at her work place" and to "the unresolved ongoing tribunal and also employers' disregard towards her concerns about her bullies" was sent by her to the Personnel Department. Similar views were expressed in a letter of 16 September from Dr. Varghese, Dr. Hariram's Registrar, to the Claimant's trade union, though this letter was not at that stage sent to the Appellants. Dr. Varghese's letter went further than Dr. Hariram's inasmuch as it strongly supported her proposal that she be allowed to take a year's secondment at a university and expressed the view that "any early return" was likely to make her symptoms worse. It is not clear from the letter whether the "return" referred to was to Frankland or to any prison; but the Claimant certainly understood the advice that she was receiving from her doctors, including her GP, to be that she should not return for the time being to any prison environment.
42. On 14 October 2004 Ms. Liddell wrote to the Claimant suggesting that she should now see an occupational health doctor in order to ascertain her fitness to return to work. The Claimant responded by e-mail on 19 October saying that she did not feel well enough to return to work "at this time" and saying that she had been signed off work by her GP for another 13 weeks. She pressed her proposal for secondment to the University of Portsmouth for a year. She added:

"I think the suggestion to send me off to another Prison such as Low Newton is fuelling my feelings of being blamed for what others have done."

It is plain that her objection was to being required to return to any prison environment (as she shortly afterwards confirmed to Atos – see para. 43 below).

43. It was accordingly arranged that the Claimant should see Atos again. She was seen by a Dr. MacCarthy, who on 7 November 2004 reported as follows:

"Description of relevant medical issues

You requested advice on whether Diane Johnson was fit to resume work following implementation of earlier occupational health advice (24 June 2004).

She tells me she was harassed due to her disability which arose from injuries sustained in an accident in 1996 and a subsequent knee injury in 2002. After a lengthy management investigation last year she has now lodged a complaint with an Employment Tribunal (ET). She expects this will take some months to progress. She is representing herself.

She has been on sickness absence since February she tells me and following a psychiatric assessment in September she has been diagnosed with Post Traumatic Stress Disorder (PTSD) with depressive symptomatology. (She showed me the report from her psychiatrist.) She remains on long term medication for depression although following the cessation of sessions with a psychologist for some months, is not receiving other active (talking) therapy.

While I am not a psychiatric specialist, I am aware of the case definition for PTSD as set out in DSM IV, (the American classification system generally used as the universal standard in the psychiatric world) and on a practical criterion therein (rather than any mental state assessment) she does not in fact appear to fit the required criteria for this diagnosis. She is however preoccupied with the perceived injustice of her situation and has some low mood.

Current capacity for work

She feels she could not resume work in a prison environment (whether Frankland or another prison) until her ET has been settled but would like to be considered for secondment to a university to complete her PhD. There is no medical objection to the latter but this is clearly a management issue. It is unlikely she would currently sustain a return to her usual work in a prison environment (even in another prison) such is her preoccupation with her dispute with HMPS and her firm disinclination to consider this. I would regard her as unfit for her usual employment in a prison environment for the foreseeable future but a review of her fitness could be undertaken following resolution of her dispute (ET), whenever that is.

Outlook

Her psychological symptoms should not be permanent although her recovery will be dependent on the progress and resolution of her dispute with her employer. She may benefit from talking therapy but she tells me her psychiatrist has suggested deferring this pending resolution of her dispute."

44. The Appellants did not provide Dr. MacCarthy with the correspondence that been generated with BMI on the issue of sick leave excusal, even though Dr. Collins of BMI had complained of not seeing the correspondence with Atos. The material of which he was accordingly deprived included letters from Dr. Oliver and Dr. Hariram. The Tribunal – see Reasons para. 8.31 - was understandably very critical of this omission, since it meant that Dr. MacCarthy was deprived of the full information that was available about the Claimant's medical condition: for example, his information that there had been a diagnosis of PTSD was obtained at second hand from the referral letter from the Personnel Department. The Tribunal found that the omission was the result of "some extraordinary mindset … that regarded the two strands of medical advice [sc. via Atos and via BMI] as completely separate and as having no relevance to the other" (Reasons para. 8.30): it described this as "negligence of a high order". The negligence was aggravated by the fact that the Claimant in her letter of 19 October had specifically asked that Atos be put in possession of the relevant medical evidence. We share the Tribunal's view that this was indeed shoddy work on the part of the Personnel Department. We are less clear that it had any fundamental effect on the course of events. If Dr. MacCarthy had seen the materials in question it would only have reinforced the central conclusion to which he came, namely that the Claimant was unfit for employment in a prison environment for the foreseeable future. We discuss this further at paras. 95 - 96 below.
45. On 26 November 2004 Ms. Liddell and the Claimant spoke again. The Claimant reiterated that she did not feel able to return to work. Following that conversation Ms. Liddell consulted Ms. Bowen and it was decided that dismissal on the grounds of medical inefficiency would now have to be considered. On 1 December Ms. Liddell wrote to the Claimant. After referring to their earlier conversation she said:

"I informed you that HMP Frankland could not continue sustaining a lengthy period of absence and asked if you would consider returning on the posed back to work plan returning to HMP & YOI Low Newton. You stated you would not. I informed you that if you were unable to return I would have to consider the dismissal on the grounds on [sic] efficiency. I asked you if you wanted time to consider your response and that I would contact you on Monday 6 December. You stated you could not return to work and did not need time for consideration."

She went on to explain the termination procedure.

46. On 7 December Mr. Copple wrote to the Claimant as follows:

"As you know, your case has been referred to the Prison Service Medical Adviser. After conducting a consultation Dr J MacCarthy has concluded that you are unfit for your usual employment in a prison environment and will be for the foreseeable future, therefore are not permanently incapable of rendering regular and effective service in the duties of your grade and that medical retirement is therefore not appropriate.

You may challenge this decision against retirement on medical grounds by the Occupational Health and Medical Adviser but you would need to provide robust medical evidence of permanent incapacity up to minimum retirement age.

Since there is no prospect of your return to work in the near future and you have now been absent from work for nine months I have to tell you that I am intending to terminate your employment on grounds of medical inefficiency.

You will be paid compensation of 100% available under PCSPS.

Please let me have any representations you may wish to make against this decision within two weeks of receipt of this letter."

The letter is very ill-drafted and the reference to "compensation … under PCSPS", i.e. to retirement on medical grounds under the terms of the Principal Civil Service Pension Scheme (see para. 53 below), confusing. But it was nevertheless plainly a statement of a provisional intention to dismiss the Claimant.

47. It was at this point that Dr. Tyrie produced her psychiatric report on the Claimant (dated 13 December 2004) for the purpose of the ongoing Employment Tribunal cases. For reasons which the Tribunal found difficult to understand (but which it appears to have accepted as muddle-headed rather than sinister) Ms. Liddell regarded the report as subject to some kind of privilege which meant that it ought not to be made use of except for the purpose of the litigation.^[2] It was accordingly not shown to Mr. Copple in connection with his decision whether to dismiss the Claimant. Paras. 36 and 37 of the report were in the following terms:

"36. Whilst voicing her determination to complete her training and carrying on, in view of the chronicity of her difficulties in spite of treatment with more than adequate doses of antidepressants, as well as counselling, and in the light of her previous history, the prognosis must be extremely guarded for anything remotely like a full recovery. Ms Johnson is likely to persist with symptoms of a Mixed Anxiety and Depressive Disorder, ICD-10 code F41.2.

37. Completion of the current tribunal is likely to bring a degree of closure but may also raise further issues. In addition I have grave doubts that she will ever return to her chosen psychology career since she is unlikely ever to regain the composure and self confidence required in such a demanding profession. This will inevitably have enormous financial implications for her with a knock on effect on her day to day life e.g. if she loses her house because of financial constraints."

While the Tribunal was critical of Ms. Liddell for not ensuring that both BMI (for the purpose of the sick leave excusal issue) and Mr. Copple - and, later, Mr. Atherton – (for the purpose of considering the Claimant's dismissal) were given Dr. Tyrie's report, its general purport was entirely in line with the advice of Dr. MacCarthy and Dr. Varghese.

48. On 19 December 2004 the Claimant submitted her representations on the proposal to dismiss her. She made five points – (1) that her sick leave was a consequence of her treatment at work; (2) that professional rules prevented her from returning to work; (3) that she should be seconded for a year to Portsmouth University; (4) that it was unreasonable to dismiss her while her application for sick leave excusal was pending; and (5) that since the medical advice was not to the effect that she could never return to work she should not be dismissed until her sick leave entitlement was exhausted. She enclosed a copy of Dr. Varghese's letter referred to at para. 41 above. (It is fair to observe that she too did not produce or refer to Dr. Tyrie's report.) It should be noted that, although the Claimant continued to press for secondment to Portsmouth University, she had in fact on 8 November 2004 been informed by the University, which had seen a medical report from one of her doctors, that her registration to pursue a Ph D was being "suspended indefinitely until the outcome of the Employment Tribunal is known and your health problems are resolved".
49. On 13 January 2005 Mr. Copple wrote to the Claimant with his decision. This was in the following terms:

"Further to your appeal against my intention to terminate your employment on the grounds of efficiency due to sickness absence, which I have considered. I respond as below:

I understand the reasons for your absence, however there has been an alternative workplace, back to work plan and development plan identified, as well as support offered to you to assist your return to work from long-term sickness absence, which you have refused verbally to Mrs Liddell, Acting Head of Personnel.

I have considered the Occupational Health report dated 7 November 2004 and note paragraph 3, which states you do not appear to fit the required criteria for diagnosis of PTSD.

Your requests to be seconded to University of Portsmouth cannot be authorised. It is not HMP Frankland's policy to allow such secondments. You are still in a probationary period which would also exclude you from an unpaid career break. The course you have requested, PhD in Research Psychology based on Eye Witness Testimony, would not be of benefit to the Prison Service whilst carrying out the duties of your current post. The OH physician does not support your request but states there is no medical objection however it is a management decision, which is not approved for the reasons stated.

You have been granted a sick leave excusal for the period of 4 August 2003 to September 2003, which has been forwarded to Bootle for action.

The period of 25 February 2004 to present has also been requested. This was followed up by the Personnel Department on numerous occasions and we have just received the outcome from BMI Health Service on 10 January 2005, this is enclosed for your information. As you can see from this report and certificate, this period of absence has not met the criteria for injury benefit award. The reason for this are contained within the report. The fact that we were awaiting this decision would not have precluded you from termination action.

I am aware of your intention to return to work following the conclusion of the outstanding employment tribunals, however this may be some time and further to the recent Atos Occupational Health Services report dated 07 November 2004 which states you will be unfit for your usual employment in a prison environment for the foreseeable future. You have now been absent for eleven months continually with previous periods from 4 August 2003 to 9 September 2003 and 25 February 2004 to present date, therefore the Prison Service cannot continue to sustain your current lengthy period of sickness absence; as such your grounds of appeal are not accepted.

Your employment will therefore be terminated on 31 January 2005.

Through your union representative, we are aware that you have questioned the pension estimate statement quote you have received. We have taken this query to pension section who have informed us that the salary figure is the highest figure based on your last years service. Therefore, they are confident that the information is correct."

Again, the letter is ill-structured^[3] and clumsily expressed. It moves erratically between issues directly relevant to the question whether the Claimant should be dismissed and the issue of sick leave excusal. As regards substance, the Tribunal was critical of a number of aspects of the letter (Reasons paras. 8.52-8.57). Some of those criticisms are directed to the claim for unfair dismissal. So far as they are concerned with the claim under the 1995 Act we will address them in the context of the specific challenges raised by this appeal.

(4) JANUARY-JULY 2005

50. On 19 January 2005 the Claimant submitted an appeal against the decision to dismiss her. It was normal practice in the Prison Service to extend the period of employment of employees who had appealed against dismissal. As a matter of law, notice of dismissal once given cannot be withdrawn unilaterally; but ordinarily employees would welcome the extension and, if they did not agree to it expressly, would do so by implication. But in the present case Ms. Liddell did not write purporting to extend the Claimant's employment until 7 February 2005 - i.e. a week after, by the terms of Mr. Copple's letter, her employment had terminated. The Tribunal considered whether the practice of extension was so clear and well-established that it could be treated as a binding custom. It held – see paras. 8.59 and 29 of the Reasons – that it was not. It also pointed out (para. 8.58) that the Appellants had treated the Claimant's sick pay entitlement as expiring on 11 January 2005, so that there could be no question of implicit acceptance of the extension of the employment by the receipt of wages. Accordingly it held that the effective date of the Claimant's dismissal in law was 31 January 2005.
51. On the face of it that conclusion is unimpeachable. However, the Appellants submit that the Tribunal omitted to refer to unchallenged evidence given by Ms. Liddell of a conversation between her and Mr. Withers, prior to 31 January, in which she confirmed that the Claimant's employment would continue pending the appeal; and they contend that on that basis the only conclusion open to the Tribunal in law was that the employment continued accordingly – this is Ground 8 of the Notice of Appeal. We are far from sure that this issue has any substantial significance. It seems to us, though the point was not argued before us, that even if the employment terminated on 31 January discrimination in the period between then and the disposal of the appeal would still have been unlawful: see s. 16A of the 1995 Act. However, to the extent that it matters, we do not believe that the Tribunal's omission to refer to the evidence in question invalidates its conclusion. The evidence does not establish that Mr. Withers had the Claimant's authority, actual or ostensible, to agree on her behalf to the extension of her employment beyond the date to which notice had been given: he may have done, but that needed to be proved. The point is no doubt a technical one, but this is an area where formalities matter. The Appellants had written to the Claimant in explicit terms terminating her employment. If they wanted to prove that that letter had not had its apparent effect the burden was on them to show that the Claimant had so agreed. It follows that this is accordingly a case of the not uncommon type where the employment is terminated pending the appeal, albeit that it could be revived with retrospective effect if the appeal were upheld.
52. An initial appeal hearing took place on 22 March 2005. Mr. Atherton decided to ask a "co-ordinator" to assist him. He appointed Linda Jones, the Head of Personnel at a different high security prison. She is the only individual in the Prison Service involved in the handling of the Claimant's case who emerges with any credit from the Tribunal's Reasons. She produced two reports for Mr. Atherton which acknowledged that the Claimant had suffered ill-treatment at work and that it was understandable that she was reluctant to return to the same environment. She was critical of the handling of the matter in a number of respects. She referred to the duty to make reasonable adjustments under the 1995 Act and questioned why the university secondment option had not been pursued.
53. In the meantime the Claimant had applied for early retirement on grounds of ill-health. The criterion for such retirement is that the employee should be "permanently incapable of providing regular and effective service in the duties of the grade by virtue of ill health". On 4 March 2005 Dr. Tyrie produced an addendum to her original report, stating that in view of the persistency of her symptoms the Claimant "must now be considered permanently incapable of employment". On 27 April a Dr. Beaumont of Atos reported to the Appellants that he was unable "to suggest any adjustments which would facilitate a return to work in the foreseeable future" and said that he would forward the file to the medical advisers to the PCSPS. On 7 June the Claimant was informed that the Trustees of the PSCPS had agreed to allow her to retire on ill-health grounds. It appears from para. 8.64 of the Reasons that this decision was unacceptable to the Claimant and that the Appellants subsequently accepted that that there had been "procedural failures": "the issue" is said to "remain unresolved". We find this somewhat opaque, but we do not need to pursue the point for the purposes of the appeal.
54. A further appeal meeting was arranged for 27 June 2005 but unfortunately it did not proceed because Mr. Withers was not well. On 22 July Mr. Atherton wrote to the Claimant in the following terms:

"May I commence by informing you that regretfully the meeting, which was arranged on 27 June 2005 with Stephen Withers, had to be cancelled due to him being unwell. However, I feel that it is prudent to bring this to a conclusion.

I have considered the appeal against dismissal for medical inefficiency very carefully and I do not uphold it.

The personal development plan produced by Gavin O'Malley in August 2004 was reasonable, supportive and designed to achieve a return to work but you felt unable to take up this offer stating medical reasons.

The investigation into your grievances was carried out appropriately and the management response to the accepted allegation of harassment was satisfactory. Management tried to facilitate a return to work but you did not take advantage of this opportunity.

Your length of absence on sick leave from 25 February 2004 is unacceptable. It is not reasonable for the Prison Service to have to accept any linkage between such absence and an intention to take a case to an ET. It is not reasonable to expect the Prison Service to continue to employ a member of staff who has this amount of sick absence.

As to consideration of other options, you do not qualify for a career break and there are no grounds for management to consider exceptionally breaking the rules on your behalf. This would have set an unacceptable precedent, in both the eligibility and purpose of a career break.

As far as I am aware, you have maintained throughout that you have been unfit to return to work [in] any capacity. I am satisfied that in these circumstances management were left with no alternative but to dismiss you from the Prison Service.

I am aware that your appeal for ill health retirement has been upheld and therefore the nature of your dismissal has changed from medical inefficiency to that of ill health retirement which is defined in PSO 8403 as, "the Medical Advisor is satisfied that the member of staff is permanently incapable of providing regular and effective service in the duties of the grade by virtue of ill health"."

The Tribunal makes a number of criticisms of Mr. Atherton's letter at para. 8.66 of the Reasons. As with the criticisms of Mr. Copple's letter, we will address these so far as necessary when dealing with the issues raised by the appeal. We should however mention one matter. Point (5) of para. 8.66 criticises Mr. Atherton in strong terms for seeking in the final paragraph of his letter to substitute ill-health retirement for medical inefficiency as the reason for the termination of the Claimant's employment. The validity of that criticism is challenged by Ground 11 of the Notice of Appeal. We cannot however see that the effect of that paragraph impinges on any substantive issue raised by the appeal; and in those circumstances we need say nothing more about it.

55. Finally, it is necessary to mention a coda to the sick leave excusal saga. In circumstances which are unclear from the Reasons, the Claimant's application as regards the latter period was reconsidered by a Dr. Evans of Capita Health Solutions (as BMI had now become) in January and February 2006 (see Reasons paras. 8.38-8.39). He expressed the opinion that the Claimant's sickness was caused by her perception of her treatment by her colleagues and managers and thus that "the medical aspects of the criteria for a qualifying injury appear satisfied", but he acknowledged that it was for management to determine whether those perceptions were in fact accurate. At the time that the Judgment was promulgated no decision had been made.

THE ISSUES AND THE LAW

56. The Tribunal's findings of disability discrimination which are challenged by the Appellants are set out in eight of the fourteen paragraphs of the formal judgment. There is however some overlap between them and we will consider the issues, in broadly chronological order, under five heads (A)-(E).
57. It is convenient first to set out the relevant statutory provisions. By virtue of the Disability Discrimination Act 1995 (Amendment) Regulations 2003, the 1995 Act was amended with effect from 1 October 2004. The relevant provisions under the amended Act are as follows:

3A Meaning of "discrimination"

(1)     For the purposes of this Part, a person discriminates against a disabled person if—

(a)     for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and

(b)     he cannot show that the treatment in question is justified.

(2)     For the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.

(3)     Treatment is justified for the purposes of subsection (1)(b) if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.

(4)     But treatment of a disabled person cannot be justified under subsection (3) if it amounts to direct discrimination falling within subsection (5).

(5)     A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person.

(6)     If, in a case falling within subsection (1), a person is under a duty to make reasonable adjustments in relation to a disabled person but fails to comply with that duty, his treatment of that person cannot be justified under subsection (3) unless it would have been justified even if he had complied with that duty.

4. Employers: discrimination and harassment

(1) …

(2)     It is unlawful for an employer to discriminate against a disabled person whom he employs—

(a)-(c) …

(d)     by dismissing him, or subjecting him to any other detriment.

4A. Employers: duty to make adjustments

(1)     Where—

(a)     a provision, criterion or practice applied by or on behalf of an employer, or  

(b)     any physical feature of premises occupied by the employer,

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

(2)     In subsection (1), "the disabled person concerned" means-

  (a)     …  

(b)     in any other case, a disabled person who is—

(i) …

(ii)     an employee of the employer concerned.

(3)     Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know—

(a) …

(b)     in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).

17A. Enforcement, remedies and procedure

(1A)-(1B) …

(1C)     Where, on the hearing of a complaint under subsection (1), the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act.

(2)-(8) … .

We should mention three other sections which we need not set out in full. S. 16A renders unlawful (in certain circumstances) discriminatory treatment of employees after the termination of the employment. S. 18B sets out a number of factors to which regard should be had in deciding whether an adjustment should be made under s. 4A. S. 58 provides for employers to be liable for the acts and omissions of their employees in the course of their employment, subject to a defence (under s-s. (5)) where the employer can show that he took such steps as were reasonably practicable to prevent acts of the kind in question.

For the purpose of the issues on this appeal, there is no material difference between the effect of those provisions and those of the unamended Act. It is sufficient for us therefore to note that ss. 4, 5 and 6 of the unamended Act correspond to ss. 4, 3A and 4A of the amended Act: there are some significant differences of language, specifically between the old s. 6 and the new s. 4A, but they are immaterial for present purposes. Save where there is particular reason to do otherwise we will refer to the provisions only by their numbers in the amended Act.

A. FAILURE TO TAKE ACTION TO PREVENT FURTHER HARASSMENT (FINDING (8)/GROUND OF APPEAL 15)

Para. (8) of the Judgment is as follows:

"That the failure after the 19 September 2003 to take effective action to protect the claimant from further acts of harassment and discrimination (such facts having been established in August 2003) and also to take sanctions out against a person the respondent had found had committed very serious acts of a discriminatory nature against the claimant (albeit not an employee but a person whom they had power to exclude) and to continue in that default until the date of dismissal thereby subjected the claimant to a discriminatory detriment which was not justified contrary to sections 4 and 5 of the Disability Discrimination Act 1995 (prior to 1 October 2004) and pursuant to sections 4 and 3A of the Disability Discrimination Act 1995 (post 1 October 2004)."

The finding is concerned with the Appellants' response to the Graham/Blackburn report: see para. 16 above. The reasoning behind it appears at paras. 54-56 of the Reasons, which are entitled "Failing to Take Action against Wrongdoers". These are in the following terms:

"54. The Graham/Blackburn report as noted above was in many senses deeply flawed. The failure to fully appreciate either the significance of the facts disclosed by the investigation or the actual impact on the claimant and indeed the future potentialities materially contributed to the downward spiral of events. It was a key event in the change of attitude on the part of the line managers. That in its turn put the claimant under considerable stress made worse by appalling mismanagement of the probationary extension process significantly impacting on the claimant's health. This was further compounded by understandable feelings of injustice and resentment regarding Mr Copple's failure to take effective action even on the limited grounds of the Graham/Blackburn recommendations.

55. In so far as Ms Hunter's conduct was concerned following a very thorough investigation (of which we make no criticism) there were substantial findings of serious acts of harassment and a recommendation for disciplinary action. Mr. Copple raised the issue with the Probation Service and eventually received a reply. In effect the response from the Probation Service was that no action would be taken. This was in a telephone call in the second or third week of September virtually coinciding with the start of the claimant's disability on 19 September 2003. Mr Copple was quite frank in his evidence to the Tribunal and in essence admitted that he made a wholly pragmatic decision in which he balanced the interests of the Prison against the interests of the claimant. Although he accepted Mr Graham's report and recommendations, although he strongly disagreed with the decision of the Probation Service and although he conceded he could have excluded Ms Hunter in the end he did nothing. Mr. Copple was concerned that in excluding Ms. Hunter he was depriving her of the job she had done for a number of years in the prison without a hearing to defend herself and he thought that there would be an adverse impact on working relationships with the Probation Service which would be detrimental to the interests of the Prison as a whole.

56. Here was a situation where Mr. Copple believed he was dealing with a disabled person and when he took his decision that belief was correct.  The evidence clearly suggests that Mr. Copple was informed that no action would be taken on a date around 19 September 2003 and it is likely that his decision was formulated subsequently to that date.  The latter point is corroborated to a great extent by the fact that he addressed the aftermath of the Graham/Blackburn investigation in his October letter to investigatees.  Of course that letter throws up into stark contrast Mr. Copple's treatment of the claimant because he did not even have the courtesy to tell the claimant that no action was being taken by the Probation Service or his reasons for not taking any action within his powers.  Given the seriousness of Mr Graham's findings this omission can only be described as quite deplorable.  This Tribunal very much doubts that if the claimant had been subject to racial abuse at an equivalent level of seriousness these pragmatic considerations would have stood in the way of a very firm action notwithstanding the views of the Probation Service.  Mr. Copple was under a duty to protect the claimant from the potential of further harassment and also to make an open stand on the issue to serve as a warning to others.  Had he done so the malicious mail incident, in all probability, would not have occurred some 4/5 months later on.  That default on the part of Mr. Copple was a continuing act because the absence of action continued to be a source of distress to the claimant.  As the claimant perceived the position of the main perpetrator remained unpunished and free to repeat her harassment.  Given that even during the investigation there had been a further incident involving Ms Hunter that was a genuine and proper concern on the part of the claimant.  Given the potential for a further breach of section 3A of the DDA 1995 the respondent had a duty to act to prevent a further breach.  It failed to do so and the claimant was subsequently subjected to the detriment of malicious mail.  Therefore for a reason related to her disability the claimant was less favourably treated and that was not justified."

The general points being made by the Tribunal in that passage are clear enough; but it is necessary to analyse more precisely what breach of the Act is being found. The analysis seems to be as follows:

(1) The finding is of discrimination within the terms of s. 3A (1): that is, that the Claimant suffered less favourable treatment for a reason related to her disability which could not be justified. That is clear from the closing words of para. 56.

(2) The treatment in question consisted of the failure to exclude Ms. Hunter. It is true that finding (8) is expressed more widely, referring in general terms to "failure to take effective action to protect the claimant from further acts of harassment and discrimination" and "also" to take sanctions against Ms. Hunter; likewise the terms of para. 54 are very widely expressed. But when the Tribunal embarks on its actual legal analysis no other particular act or omission is identified, and the entire discussion in paras. 55 and 56 is in terms of the failure to exclude Ms. Hunter. This reflects also the approach in the equivalent section of the detailed findings of fact – paras. 8.70-8.72 – and the relevant issue as defined in the order of 1 September 2005 (para. 13.1.8). Mr. Galbraith-Marten's submissions proceeded on this basis. The Tribunal's wider remarks can thus only be read as prefatory or contextual. They are not findings of breach. If (which we do not believe) they were intended as such they are far too unparticular to stand.

(3) The decision so to treat the Claimant, i.e. the decision not to exclude Ms. Hunter, was taken by Mr. Copple. (The Tribunal was accordingly concerned, and concerned only, with the reason why Mr. Copple acted as he did and thus with his mental processes, conscious or unconscious: see Nagarajan v. London Regional Transport [1999] ICR 877, per Lord Nicholls at p. 884F.)

(4) The Tribunal found that the decision was taken after (albeit only very shortly after) the commencement of the Claimant's disability as found by Mr. Garnon (see the second sentence of para. 56) and thus that the treatment in question was, from the start, treatment of a disabled person.

(5) The Tribunal found that the reason for that treatment was a reason related to the Claimant's disability. It appreciated that Mr. Copple was at the time that he took his decision unaware of the psychological/psychiatric disability from which the Claimant was in fact suffering; but it relied on the fact that he believed her to be suffering from a physical disability - see the opening sentence of para. 56. (Although Dr. Oliver's letter – see para. 19 above - would have been received by Ms. Ringrow shortly before the decision, there is no finding, or suggestion, that Mr. Copple was aware of it.)

(6) The Tribunal found that the treatment in question was not justified. The reasons for this conclusion are not spelt out, but the implication is that the Tribunal believed that the risk of further injury to the Claimant outweighed the interests of the prison as they appeared to Mr. Copple.

(7) The treatment in question continued until the end of the Claimant's employment because the non-exclusion of Ms. Hunter was a continuing act. This is not explicitly stated in the Reasons but it is explicit in finding (8) itself.

There are some other criticisms of Mr. Copple – for example, his failure to tell the Claimant that he was not going to exclude Ms. Hunter, or why – but those do not appear to be intended as findings of discrimination.

Ground 15 of the Notice of Appeal (see para. 22 of the Notice) challenges the Tribunal's findings on a number of bases. It does not go so far as to say that it was not open to the Tribunal to hold that Mr. Copple's decision not to exclude Ms. Hunter was unjustified (step (6) above), though it does say that no adequate reasons are given for the finding. But the primary point made by Mr. Stilitz was that, however much Mr. Copple's decision might be open to criticism, it could not have constituted disability discrimination because it was not taken "for a reason which relate[d] to [her] disability" – i.e. he focuses on "step (5)". Mr. Stilitz referred us to the decision of the Court of Appeal in Taylor v. OCS Group Ltd. [2006] ICR 1602 and specifically to the observation in the judgment of the Court given by Smith LJ (at para. 72) that:

"Discrimination requires that the employer should have a certain state of mind. In the context of the DDA, an employer cannot discriminate against the employee unless he treats the disabled employee differently for a reason (present in his, the employer's, mind) which is related to the employee's disability. … We would certainly accept that an employer could have an innate prejudice against disabled people just as some are prejudiced on the grounds of race or gender. What is important is that the disability-related reason must affect the employer's mind, whether consciously or subconsciously. Unless that reason has affected his mind, he cannot discriminate."

Mr. Stilitz's point is that the Claimant's disability cannot have affected Mr. Copple's mind in taking his decision not to exclude Ms. Hunter because he was unaware of it. The fact that Mr. Copple believed Ms. Hunter to have a disability of a wholly different character is irrelevant: Mr. Stilitz characterised the Tribunal's attempt to rely on it as a "sleight of hand".

We agree with Mr. Stilitz that for the purposes of liability under the 1995 Act the disability to which the reason for the treatment complained of relates must be a disability from which the Claimant is in fact suffering, so that in principle a reason for action relating to (believed) disability A is not caught if the employee is in fact suffering only from (different) disability B. However, on the special facts of this case that point may not be dispositive. On Mr. Garnon's findings the Claimant's complaints of physical symptoms were, at least in part, a product of her mental illness, so that they could, at least arguably, be said to "relate to" that illness. (Indeed it seems from other passages in the Reasons – see paras. 4 and 49 - that the Tribunal may have had precisely that point in mind.) However, the real problem with the Tribunal's approach goes deeper. Even if the Claimant's (reported) physical symptoms were potentially relevant, for the Tribunal to find that Mr. Copple discriminated against the Claimant it needed to find that the fact that (as he thought) she suffered those symptoms was the "reason", or part of the reason, for his decision not to exclude Ms. Hunter. There is no such finding; and any such conclusion would indeed be highly implausible. The Tribunal in fact made clear findings about Mr. Copple's reasoning: see the second half of para. 55 of the Reasons. He acted as he did because he thought that it was in the best interests of the prison. That reason did not "relate" in any way to the Claimant's supposed physical symptoms. The fact that the Claimant was understood to be physically disabled was of course part of the sequence of events which eventually led to the impugned decision: if she had never claimed to be disabled Ms. Hunter would never have made her offensive remarks and there would have been no Graham/Blackburn investigation. But to say that the disability is part of the story which led to the situation in which the act complained of occurred does not mean that it is part of the reason for that act. It is true that, as has been several times pointed out, s. 3A (1) of the 1995 Act is differently worded from the "direct discrimination" provisions of the Sex Discrimination Act 1975 and the Race Relations Act 1976, in that the proscribed treatment need not be "on the grounds of" the Claimant's disability but only for a reason related to it. But the purpose of that difference in wording is to cover the situation where the reason for the putative discriminator's action is not the disability itself but something related to it – as where an employer treats a deaf employee less favourably because he is bad at answering the phone. The "related reason" must still, as in other kinds of discrimination, be (or be part of) the putative discriminator's reason for acting in the way complained of. An employer's inadequate response to a problem caused by a disabled person's disability is not, of itself, discrimination contrary to s. 3A (1) (though it may constitute a breach of s. 4A).

Thus in our view the Tribunal has here fallen into the error of regarding the fact that a disabled person has been treated badly as dispositive of the question whether her disability (or something related to it) was, or was part of, the reason for that treatment. If it was not, then, however reprehensible the treatment, it is not discrimination within the meaning of s. 3A. Para. 22.2 of the Notice of Appeal pleads that "the Tribunal erred in finding a causal connection between the Respondent's disability and Mr. Copple's actions (if it did find such a causal connection)". Subject to the caveat expressed by Lord Nicholls in para. 29 of his speech in Khan v. Chief Constable of West Yorkshire Police [2001] ICR 1065 about the use of the term "causation" in this context (which probably survives the re-analysis in St. Helen's Borough Council v. Derbyshire [2007] IRLR 546), that contention seems to us correct.

We accordingly believe that Ground 15 of the Notice of Appeal is well-founded. Finding (8) was not open to the Tribunal on the basis of its own primary factual findings. We need not examine all the subsidiary points made in para. 22 of the Notice of Appeal. We should, however, make clear that we agree with the contention in paras. 22.4 and 22.5 that step (7) is also wrong. In our view Mr. Copple's decision was plainly a "one-off act".

B. MALICIOUS MAIL (FINDING (10)/GROUND OF APPEAL 14)

The Tribunal found at para. (10) of its Judgment:

"That the respondent failed to take appropriate and expeditious action in relation to malicious mail in February 2004 and thereby exposed the claimant to an act of harassment which failure constitutes a detriment for the purposes of sections 4 (2) and 5 of the Disability Discrimination Act 1995."

The reasons behind that finding are given in paras. 51-53 of the Reasons. We need to set these out in full.

"51.  This issue turns on Mr Downing's reactions to the first and second pieces of mail.  In the absence of any back history, it would not have been unreasonable for a line manager to seek an innocent explanation for this mail.  However, in light of what had happened in the preceding 12 months Mr Downing's attitude at that point was not just inexplicable it seems to have been downright perverse.  Part of that background was the assumption by the respondent that the claimant had a physical disability.  Mr Graham has previously made findings regarding derogatory remarks about the claimant.  There was sufficient warning in the facts revealed to Mr Downing at that point, given that background, for him to suspect a repetition to the harassment the claimant had been previously subject.  Mr Downing equally was fully aware of the adverse impact of those events on the claimant.   Instead of acting in circumstances that any responsible manager would have regarded as demanding an immediate response Mr Downing seems to have adopted a very casual attitude. By suggesting that the claimant made enquires he acknowledged the need for action but remarkably took no action whatever himself.  Significantly he seems not to have actively pursued the outcome of those enquiries. Everything he did at that point speaks of a distinct lack of interest or concern.   Mr Downing's failure to take appropriate action therefore led directly to the claimant being exposed to the third and, undoubtedly, the most malicious item of mail.  Receiving that item caused the claimant distress that could and should have been avoided.  It was only when the position was utterly beyond doubt that Mr Downing took action but then he was shutting the stable door.  It was too late because the damage had been done.  These facts were established sufficiently to move the burden of proof to the respondent to show that this default was not discriminatory.

52.  The respondent suggested that the first two items of mail could have been sent innocently.  The Respect magazine was about ethnic issues and the leaflet 'Are You Being Harassed Bullied or Discriminated Against' was not inherently objectionable.  It was further suggested that there was no evidence that these items had been sent by Prison Service employees and in consequence the respondent could not be held liable for the acts of non-employees.  Addressing these contentions we have concluded as follows: firstly, the items of mail had been sent anonymously and the only reasonable source of such material the equalities officer Mr Greener confirmed that they had not come from him. Subsequently, on his own initiative, Mr Greener then spoke to Ms Ringrow.  Accordingly responsible managers were aware before the third item of anonymous mail was received of these facts.  That was quite sufficient to give rise to a reasonable suspicion that the anonymous mail was not well intentioned.  Secondly, the claimant perceived the second anonymous item to be malicious given the receipt of the first item.  Therefore when a person who you regard as disabled, where there is a history of serious discriminatory conduct directed to that person tells you as a manager that she is receiving anonymous mail which she believes has discriminatory intent ought to take that circumstance very seriously. The subjective reactions of the person the object of the discriminatory conduct ought to be accorded considerable weight in the measure of things. Thirdly, the items had been sent in the internal mail. Therefore access was restricted and although others such as Probation Service personnel could use the internal mail this is essentially a closed system. Accordingly, the respondent had both control of and responsibility for the internal mail system and the great majority of its users were its employees.

53. The Tribunal was not persuaded by the respondent's explanations. It is accepted that after the event appropriate enquiries were made but the source of the malicious mail was never found and also that the action taken was effective because no more items of malicious mail were received. However, those actions do not change the position materially. The fact remains that the third item of mail could and shou1d have been intercepted. If it had been the claimant would not have been exposed to further harassment. Mr. Downing ought to have taken immediate action when the c1aimant first approached him and he failed to do so; there was absolutely no excuse. This dereliction of duty on his part exposed the claimant to an avoidable act of harassment that the respondent could have and should have taken steps to avoid, it thereby subjected the claimant to detriment for a reason related to her disability and that less favourable treatment was not shown to be justified. These matters therefore constitute a breach of the then sections 4 and 5 of the DDA 1995."

This finding by the Tribunal is challenged at Ground 14 of the Notice of Appeal. It is said – correctly, in our view - that the Tribunal fails to make clear the precise basis on which the Appellants are being held liable. Mr. Stilitz submitted that there were in principle three possibilities, which we examine in turn.

First, the Tribunal may have been intending to find that Mr. Downing's failure to act after receipt of the second item constituted less favourable treatment of the Claimant by him. Mr. Galbraith-Marten submitted that this was indeed what the Tribunal intended. There is support for that view in the opening sentences of para. 51, which appear to focus on Mr. Downing's inaction and the reasons for it. Mr. Stilitz submitted that if that was the case there was no finding, and no facts found which might support a finding, that that action was taken for a reason related to the Claimant's disability. Mr. Galbraith-Marten contended that no such finding was necessary: this was, as the Tribunal plainly believed (see the final sentence of para. 51), a case falling within the burden of proof provisions of s. 17A(1C). We agree with Mr. Stilitz that if this was the Tribunal's reasoning it was wrong in law. The point is essentially the same as that considered at para. 63 above: there is no finding, or basis for a finding, that the reason, or part of the reason, for Mr. Downing's decision was his knowledge of the Claimant's reported physical disability (or, though there is in fact no finding that he was aware of this, of any mental illness). The Tribunal does indeed say in para. 51 that "part of the background" to Mr. Downing's attitude was "the assumption … that the claimant had a physical disability"; but that is not enough. The "background" to a decision is not the same as the reason for it. The Tribunal was entitled to take the view that Mr. Downing's response to what the Claimant told him had been unacceptably casual, but that is not the issue: the issue is the reason why he was thus casual.

The difficulty is not got round by appealing to s. 17A (1C). In order for the Claimant to reach "Igen stage (1)" (Igen Ltd. v. Wong [2005] ICR 931) she still needed to prove facts from which the Tribunal could have inferred that Mr. Downing was affected by the knowledge of her disability (or of the related factor). Again, the Tribunal does not address this question; but, again, there are no primary factual findings to justify even a prima facie conclusion that his knowledge of her reported disability influenced his fainéant attitude (which is not in any event a very plausible hypothesis). Mr. Galbraith-Marten in para. 54 of his skeleton argument identified a number of findings of fact which, he submitted, could when taken together justify the necessary conclusion. We mean no disrespect to him by not setting them out in full. The short answer is that we do not believe that they could get the Claimant to the point where the burden of proof is reversed because none of them bear on the essential question of Mr. Downing's mental processes (conscious or unconscious).

Secondly, the Tribunal may have been intending to make a finding of vicarious liability for the actions of whoever sent the malicious items, under s. 58 (1) of the Act. The third sentence of para. 52 would, if taken in isolation, seem clearly to suggest that the Tribunal did indeed have the question of vicarious liability in mind, and it appears from Mr. Stilitz's written closing submissions in the Tribunal that, as one would expect, he had drawn the Tribunal's attention to the possibility of liability being established on this basis.^[4] However, it is hard to reconcile a finding on this basis with the overall thrust of paras. 51-53 and their clear concentration on Mr. Downing's conduct. The matter is in our view put beyond doubt by the terms of finding (10) of the Judgment, which unequivocally pins liability to the Appellants' failure to act. We cannot therefore regard the Tribunal as having decided this issue on the basis of vicarious liability.

The formal consequence of the conclusion that the Tribunal did not decide the case on the basis of vicarious liability is that we could only consider whether it nevertheless should have done so if the point were raised in the Respondent's Answer, which it is not (see para. 25). We would not be minded to insist on the formalities if the balance of justice favoured allowing the point to be taken now; but we do not believe that it does. Despite the reference in Mr. Stilitz's closing submission, it is far from clear that the case was ever put this way before the Tribunal. Further, the question whether the Appellants are vicariously liable for the sending of all or any of the items of mail in question is not one which could be resolved by this Appeal Tribunal. Findings would be necessary as to whether it was in fact a Prison Service employee who was responsible for the sending of the mail: plainly it might well have been, but it is in principle at least equally possible that it was Ms. Hunter, who seems on the evidence to have been the nearest thing to a ringleader of the ill-treatment of the Claimant. We agree with Mr. Stilitz that no such findings can be spelt out of the Reasons. Mr. Galbraith-Marten submitted that the last two sentences of para. 52 should be read as a finding that, on the balance of probabilities, the mail was indeed sent by a Prison Service employee and not by Ms. Hunter, but in view of the unclear nature of the reasoning as a whole we are not satisfied that that is in fact correct: the sentences in question simply do not focus on the question of Ms. Hunter's possible role. It follows, therefore, that a remission to the Tribunal would be necessary to consider both that issue and the statutory defence under s. 58 (5). In the context of this litigation as a whole, and having regard to the over-riding objective, the possibility of the Claimant achieving on a remission a finding of liability on this narrow basis – which by itself would be very unlikely to attract a substantial award of compensation – is not such as to justify disapplying the rules in her favour.

Thirdly, the Tribunal may have been intending to find liability simply on the basis that the Appellants, through Mr. Downing, had by taking inadequate precautions, exposed the Claimant to discriminatory treatment by a third party. The final sentences of para. 53 smack of such an approach. If that was indeed the Tribunal's approach, Mr. Stilitz submits that it had succumbed to the fallacy exposed by the decision of the House of Lords in Macdonald v. Ministry of Defence [2003] ICR 937. That might seem prima facie unlikely since the Tribunal in its summary of the law at para. 24 of the Reasons referred expressly to Macdonald and to the over-ruling of Burton v. De Vere Hotels Ltd. [1997] ICR 1. But Mr. Stilitz points out that in the very same paragraph the Tribunal went on to say that the situation considered in Macdonald and Burton had to be distinguished from the case where an employer who was aware of a campaign of harassment against an employee took no adequate steps to prevent it although it was in a position to exercise control, referring to Chessington World of Adventures Ltd. v. Reed [1997] IRLR 556. Mr. Stilitz observes that in Chessington the Appeal Tribunal was in fact applying Burton, so that the distinction advanced by the Tribunal is unfounded. We agree with that submission. Mr. Galbraith-Marten submitted that the authority of Macdonald was itself now in doubt because it had been shown to be contrary to the requirements of the EU Framework Directive: he relied on the decision of Burton J. in Equal Opportunities Commission v. Secretary of State for Trade and Industry [2007] IRLR 327. He accepted that the time allowed for implementation of the Directive had not at the relevant dates expired, but he held that that was no answer, relying on the decision of the European Court of Justice in Mangold v. Helm [2006] IRLR 143. However, we agree with the decision of this Tribunal (Wilkie J. sitting alone) in Lloyd-Briden v. Worthing College (UKEAT/0065/07) that Mangold does not have the effect for which Mr. Galbraith-Marten contends.

For those reasons, finding (10) of the Judgment must be quashed.

C. REASONABLE ADJUSTMENT (FINDINGS (5) & (9)/GROUNDS OF APPEAL 4 & 5)

The Tribunal made two findings of breaches of the Appellants' duty to make reasonable adjustments. These are:

- Finding (5): That the respondent failed in its duty to consider what reasonable adjustments (including alternative employment) it could make prior to dismissing the claimant contrary to sections 4A, 3A and 18B of the Disability Discrimination Act 1995 (as amended).

- Finding (9): That by not securing for the claimant an alternative place of work in the period from September 2003 to the date of dismissal away from contact with persons who had harassed the claimant the respondent failed in its duty to make reasonable adjustments contrary to the then section 6 (prior to 1 October 2004) and contrary to sections 4A, 3A and 18B of the Disability Discrimination Act 1995 (as amended).

FINDING (5)

Mr. Stilitz and Mr. Galbraith-Marten were agreed that finding (5) was wrong in law. In finding breach of a duty to "consider" whether to make reasonable adjustments, the Tribunal was following the decision of this Tribunal in Mid-Staffordshire General Hospitals NHS Trust v. Cambridge [2003] IRLR 566, to which it expressly referred at three points in its Reasons (paras. 18, 34 and 50). That decision has now been disapproved in Tarbuck v. Sainsbury's Supermarkets Ltd. [2006] IRLR 664, where Elias P. held that the only question under s. 4A is whether, objectively, the employer has or has not failed to make reasonable adjustments: his state of mind is irrelevant, so that the fact that he has not "considered" whether to make adjustments is immaterial if there were in fact none that he should reasonably have made. Strictly, we are free to choose between the two decisions; but we are satisfied that Tarbuck is correct – and, as we say, Mr. Galbraith-Marten did not contend otherwise. It follows that finding (5) must be quashed. Mr. Stilitz submitted that, although finding (9) is formally distinct and is not on its face subject to the same error, it is in fact equally contaminated by it. We consider that submission below.

FINDING (9)

The Tribunal's Reasoning

The reasoning supporting the Tribunal's findings on the reasonable adjustment issue is to be found in paras. 43-50 of the Reasons. The paragraphs in question are very long, and the train of thought at some points needs analysis or exposition. We accordingly do not set them out in full but would seek to summarise and analyse them as follows.

Para. 43. The Tribunal starts by identifying three kinds of "reasonable adjustment" which the Claimant was saying should have been made:-

(a) Relocation. The Claimant's case was that she should have been relocated "to a less hostile environment" when she requested action "at the earlier stages of this matter". This appears to be a reference to the period from summer 2003 to February 2004. The Claimant was of course relocated to Deerbolt in July 2003, but this was only on a temporary basis.

(b) Alternative employment. The case here was "that the respondent should have considered alternative employment for the claimant, with this becoming more significant commensurate with the progressive decline in the claimant's mental health". The "alternative employment" in question means employment otherwise than as a prison psychologist. The relevant period appears to be the period of the Claimant's final sickness absence, i.e. from February 2004, and particularly towards the end of the period.

(c) Suspension of the development plan. This specifically relates to February 2004, when it is the Claimant's case that she should have been given some respite and not required to start the programme of supervised work which the Appellants were proposing.

The Tribunal then goes on to summarise the Appellants' answer to those contentions under eleven numbered points. We need not set those out in full: we will so far as necessary consider particular points below. The gist of the defence is that the Appellants had done what was reasonable and that none of the proposed adjustments was reasonable or in any event practicable. One point emphasised was that the Claimant herself would not have accepted relocation in the course of 2004: she had emphatically rejected the Low Newton proposal (see paras. 41 - 42 above).

Para. 44. This paragraph begins as follows:

"There was a series of failures on the part of the respondent and each failed opportunity increased the accumulative effect of the next failure and progressively the claimant's mental health deteriorated making accommodation more difficult. Thus the proposition that no adjustments were objectively possible is clearly quite unsustainable at the beginning of the process but more arguable at the very end i.e. January (or July) 2005."

The Tribunal then proceeds to review the sequence of events concerning relocation in the autumn of 2003. It makes the point that the Appellants were made aware of the Claimant's mental state not only from what she was saying herself but from the reports of Dr. Oliver and Dr. Almond: it comments that her "cry for help was unmistakable but went steadfastly unacknowledged". It then considers the two actual relocations sought by the Claimant at the time. So far as transfer to the DSPD unit is concerned, it finds that that was not practicable. As for Deerbolt, the position is a little complicated and the Tribunal's findings are not crystal clear. However on our analysis (and reading them with the factual findings at paras. 8.90-8.92) the Tribunal's conclusions can be summarised as follows:

(1) The Claimant was of course transferred to Deerbolt in July 2003, on a temporary basis. The Tribunal is critical of the Appellants for leaving it to the Claimant to make the running on this arrangement and for not themselves being more "proactive". But it acknowledges that that criticism cannot result in legal liability because she was not at that stage disabled.

(2) The Claimant wanted her transfer to Deerbolt to be permanent. This "failed for a variety of reasons including the application of policies and rules that the claimant could not meet". The Tribunal does not in para. 43 specify what those policies and rules were: the only one identified in the factual findings section of the Reasons (at para. 8.93) was that permanent transfer could not be granted until she had completed her probation.

(3) There is no explicit finding by the Tribunal as to whether the application to the Claimant of the policies and rules that precluded a permanent transfer to Deerbolt was reasonable. However, at the end of para. 45 (quoted below) the Appellants' requirement that "procedures" had to be complied with in connection with a permanent transfer to Deerbolt is described as being "obstructive and unhelpful". Taking these paragraphs (and also para. 49) as a whole, it is fair to read the Tribunal as having intended to find that a permanent transfer to Deerbolt would have constituted a reasonable adjustment. Since her temporary transfer ended on 30 September the failure to make that adjustment continued, just, into the period of her disability.

The paragraph concludes with the observation that the Appellants "did nothing to address [the] central concern" of the Claimant that she should be allowed to detach herself from the hostile environment of Frankland and that accordingly she was obliged to continue working there until February 2004.

Para. 45. This paragraph starts by observing that the Appellants' attitude to the Claimant changed fundamentally on her return to work on 9 September 2003. Up to that point they had concealed from her the extent of their concerns about her performance. Thereafter, she was confronted with those concerns in a most insensitive manner. This change is put down "in part" to the Graham/Blackburn investigation, which the Tribunal proceeds to criticise extensively in terms to which we have already referred. It is not entirely clear to us how this discussion relates to the reasonable adjustments issue. But the paragraph concludes as follows:

"The respondent was aware of the claimant's continuing concerns in the period September 2003 to February 2004 and knew that it was the claimant's wish to be removed to a non-hostile environment. That would have been a reasonable adjustment and, indeed, the respondent proposed such a transfer (but for other reasons) in August 2004. That demonstrated that it was open to the respondent to arrange to move the claimant's place of work showing that the position which it took over Deerbolt (namely, that the claimant had to make the applications and comply with the procedures) was merely an indication of its being obstructive and unhelpful. As an approach this is hardly consistent with the contention that this was an employer prepared to seek reasonable adjustments."

This finding is thus concerned with the period following the Claimant's return to Frankland, i.e. from September 2003 to February 2004. As regards that period it is an explicit finding that the transfer of the Claimant to a different prison would have been a reasonable adjustment; but no particular prison is identified. Even if a transfer back to Deerbolt would have been one of the possibilities, that does not appear to be what the Tribunal had in mind: notwithstanding the reference to Deerbolt at the end of the paragraph, its specifically Deerbolt-related findings are the subject of para. 44.

Para. 46. This paragraph starts by considering the Claimant's proposal that she be "seconded" to the University of Portsmouth. The Tribunal contrasts Mr. Copple's rejection of the proposal on essentially procedural grounds with Ms. Jones's recognition of it as a potential reasonable adjustment "notwithstanding the rules"; and it approves her approach as conforming with that in Archibald v. Fife Council [2004] ICR 954. It acknowledges that the Porstmouth proposal did not in fact constitute an available adjustment because of the university's withdrawal of its offer in November 2004. But it continues:

"Notwithstanding the University's decision this did not invalidate a search for a solution as proposed by Ms Jones. This could have included settling a number of disputes between the parties and clearing the decks. This may well have enabled the claimant to continue her studies freed of the burden of her disputes. If there had been a positive plan to restore the claimant's health of this kind a period of research in an academic setting may have formed a useful part of the therapy. This, as recognised by Ms Jones, would have had the added benefit of giving both sides an opportunity for a breathing space to re-evaluate their relationship. Unfortunately the constructive and prudent approach advocated by Ms Jones was totally rejected."

This appears, therefore, to be a finding that once it became clear that the Claimant was unable to work in a prison environment for the foreseeable future – sc. from about the autumn of 2004 - the Appellants should have considered the possibility of a temporary academic placement, albeit not at Portsmouth, but failed to do so.

Para. 47. This paragraph moves on to the second of the Claimant's proposed reasonable adjustments, namely alternative employment. The Tribunal refers back to its earlier conclusion "in the dismissal section" that the question of alternative employment ought to have been considered as part of the dismissal process. This appears to be a reference to the second half of para. 32 of the Reasons, where it had found that Mr. Copple had not considered the question of alternative employment either as a reasonable adjustment under the 1995 Act or as part of the general duty on employers contemplating dismissal on grounds of ill-health. (It had also rejected evidence from Ms. Liddell that she had at that stage made an enquiry about possible alternative employment.) The Tribunal goes on to find that even prior to the dismissal process the Appellants should have researched the possibility of offering the Claimant employment elsewhere in the Home Office, by reference to the regularly-circulated internal bulletin containing details of vacancies. It acknowledges that the Claimant might have been resistant to any such offer, given her refusal in August 2004 to contemplate anything except a return to Frankland (subject to university secondment). But it finds that if her case had been handled with proper sensitivity she might have been more receptive and "it is possible that solutions could have been found".

Para. 48. In this paragraph the Tribunal reverts to the relocation adjustment and rejects the argument that the Claimant would not have considered relocation. As it points out, in 2003 she was positively seeking relocation. As regards 2004, although the Claimant's position had changed and she was resisting a return to anywhere save Frankland, the Tribunal found that:

"… had the respondent acknowledged the position, taken action and shown good faith, we feel sure that the claimant would have taken a different view."

Para. 49. This paragraph summarises the point reached as a result of paras. 43-48 and we should set it out in full. It reads as follows:

"Accordingly, the Tribunal is satisfied that in all the circumstances of the case the claimant had established such facts that in the absence of an explanation it would be possible to conclude that the respondent had failed in its duty to make reasonable adjustments by either placing the claimant away from Frankland or by finding her alternative employment. These breaches took place on a number of occasions: in the summer and autumn of 2003 when Mr O'Malley was primarily responsible together with Mr Downing they being advised by Ms Ringrow; in February 2004 when the primary decision taker was Mr O'Malley with Mr Downing; in December 2004 and January 2005 when Mr Copple was the decision taker advised by Ms Liddell and in July 2005 when the decision taker was Mr Atherton advised by Miss Jones. The respondent has accepted the claimant as a disabled person from the inception of employment. Although the physical symptoms the claimant had relied on were not established as a disability both Dr Tyrie (December 2004) and Mr Garnon (March 2005) found that there was an element of psychological overlay connecting the mental disability and the physical symptoms. Throughout the respondent thought it was dealing with a disabled employee. Notwithstanding that apparent belief it persistently failed to act in a manner consistent with an employer addressing a disability situation. In fact it seems to have ignored the issue. It ignored Dr Tyrie's finding of disability. It ignored Mr Garnon's Judgment declaring disability. It is not too strong a word to describe its conduct in this regard as negligent."

The first half of this paragraph is thus a finding that the Claimant had proved the matters necessary under s. 17A (1C) to shift the burden of proof to the Appellants as regards failures by them to make reasonable adjustments under what we have called heads (a) (relocation) and (b) (alternative employment) proposed by the Claimant (see para. 78 above). These failures took place at four stages, as follows:

(1) "In the summer and autumn of 2003 when Mr. O'Malley was primarily responsible together with Mr. Downing, they being advised by Ms. Ringrow". This reflects the findings about Deerbolt in para. 44 as reviewed at para. 79 above.

(2) "In February 2004 when the primary decision taker was Mr. O'Malley with Mr. Downing". This reflects the general finding in para. 45 (see para. 80 above). The date of February 2004 appears to have been chosen as the end-point of the period, when the Claimant's further discussions with Mr. O'Malley led to her going off sick again.

(3) "In December 2004 and January 2005, when Mr. Copple was the decision taker advised by Ms. Liddell". This is essentially the period when the Appellants were deciding to dismiss the Claimant. The reference appears to be to paras. 46 and 47 – that is, to the findings that the Appellants should have considered some kind of academic secondment and/or considered alternative employment elsewhere in the Home Office.

(4) "In July 2005 when the decision taker was Mr. Atherton advised by Ms. Jones". This must also refer to the findings in paras. 46 and 47: the failings found were the same but repeated at the appeal stage.

(It should be noted that there is no finding under what we have called "head (c)", i.e. in relation to deferral of the development plan.) The second half of the paragraph is highly critical of the Appellants, but it is not clear to what legal issue these criticisms are directed. They do not appear to us to be intended as a finding that the Appellants had failed to discharge the burden of proof arising under s. 17A (1C).

Para. 50. This paragraph reads as follows:

"None of the managers involved seem to have addressed the question of disability in terms, not Mr Downing, not Mr O'Malley, not Ms Bain, not Ms Ringrow, not Ms Liddell, not Mr Copple, not Ms Bowen and nor did Mr Atherton. Only Ms Jones began to address the issues and even she fell short of getting to grips with the fundamental issues. So many fingers in the pie and not one of them addressed the question in a proper systematic way. The duty to consider adjustments lies with the employer and unless there is evidence of a proper assessment being carried out there is a breach of that duty – Cosgrove v Caesar and Howie and Mid-Staffordshire General Hospitals v Cambridge. The question of whether any adjustments were objectively possible therefore does not arise. Accordingly, the only other issue to be considered is the respondent's state of knowledge. From December 2004 the respondent had incontrovertible knowledge of the disability. During the period September 2003 to December 2004 it has a number of warning signs that put it in on notice to make enquiry not least the observations of Dr Almond in November 2003 that it failed to follow up. As time progressed over this period the warning signs increased but this respondent was steadfast in ignoring them. Indeed, it seems to have completely ignored the fact of disability when it had actual notice both medical and judicial. At various points in this continuum the respondent had sufficient knowledge to at least put it on enquiry and it ought then to have acted to make reasonable adjustments but failed to do so. Accordingly, we have no doubt that there were breaches of DDA 1995 both prior and post 1 October 2004."

It is not entirely clear how the paragraph fits into the sequence of the Tribunal's reasoning. Logically one would expect it to be directed to considering whether the Appellants had discharged the burden under s. 17A (1C), i.e. "Igen stage (2)", which had been left unaddressed in the previous paragraph; and, since it is clear from the conclusion of the paragraph that the Tribunal must have found that the Appellants had not discharged that burden, that is probably what is intended. But the actual points considered are in fact as relevant to Igen stage (1) as they are to Igen stage (2). They are as follows:

(1) The first half of the paragraph makes the Mid-Staffordshire point. It holds that none of the individuals concerned in the decision-making (i.e. those identified in para. 49, though Ms. Bowen has slipped in) addressed the issue of the Claimant's disability, and thus that the Appellants had, necessarily, been in breach of the duty to consider the question of what adjustments might be required.

(2) The second half of the paragraph finds that the Appellants at all of the four stages identified knew, or could reasonably be expected to have known, that the Claimant had a disability, which is a prerequisite for liability by reason of s. 4A (3) (b) (corresponding to s. 6 (6) of the unamended Act).

The Tribunal's reasoning on this part of the case is challenged by Grounds 4 and 5 of the Notice of Appeal. We consider them in turn.

Ground 4

In this Ground of Appeal the Appellants contend, as adumbrated above, that the Tribunal's finding (9) is as much affected as finding (5) by the "Mid-Staffordshire heresy". We have come to the conclusion that this contention is well-founded. The starting-point must be the emphatic statement in para. 50 that "the question of whether any adjustments were objectively possible … does not arise". Whatever its precise place in the structure of the Tribunal's reasoning, that plain misdirection is hard to ignore. It is true that in the preceding paragraphs the Tribunal does appear, to a greater or lesser extent, to have considered the substantive question of reasonableness; but on close analysis its actual findings are inconclusive and fall short of firm findings that any particular adjustment was reasonable. This is particularly clear in relation to stages (3) and (4): the gist of paras. 46 and 47 is simply that if the Appellants had properly considered the adjustments in question "it is possible that solutions could have been found". As regards stage (1), there is, likewise, no clear finding that a transfer to Deerbolt (or anywhere else) would have been possible: the gist of the criticism is that the possibility was rejected on the basis of a technicality and that the Appellants did nothing to address the Claimant's concerns. As regards stage (2), there is indeed towards the end of para. 45 a statement that it would have been a reasonable adjustment for the Claimant "to be moved to a non-hostile environment"; but that is not addressed to any specific proposal.

We accordingly hold that finding (9) cannot stand. If we reached this conclusion on the basis of Ground 4 only the correct course would be to remit the case to the Tribunal for it to consider the substantive question of whether the adjustments proposed by the Claimant were reasonable. However, that must be subject to the effect of the Appellants' further contentions under Ground 5, to which we now turn.

Ground 5

The Appellants' first point (Notice of Appeal paras. 12.1-12.4) is that the Tribunal's Reasons are insufficiently particular as to the adjustment which the Appellants should have made. In support of that submission Mr. Stilitz relied on the decisions of the Court of Appeal in Smith v. Churchills Stairlifts plc [2006] ICR 524 and NTL Group Ltd. v. Difolco [2006] EWCA Civ 1508 and on the decision of this Tribunal in Smiths Detection Watford Ltd. v. Berriman (UKEAT/0712/04). We are not entirely sure that any of those authorities was directly in point; but we nevertheless agree that a Tribunal deciding whether an employer is in breach of its duty under s. 4A must identify with some particularity what "step" it is that the employers are said to have failed to take. Unless that is done the kind of assessment of reasonableness required by the Act (see in particular para. 18B) is not possible. That view is confirmed by the recent decision of this Tribunal in Project Management Institute v. Latif (UKEAT/0028/07). That case was concerned with the burden of proof. The employee submitted – as did Mr. Galbraith-Marten before us - that once facts were proved from which the tribunal could conclude that a disabled employee was placed at a substantial disadvantage by a particular "provision criterion or practice" (or, prior to 1 October 2004, by particular "arrangements") the burden was on the employer to show that there were no steps that it could reasonably have taken to reduce or eliminate that advantage: it was not up to the employee to propose any particular step. The Appeal Tribunal rejected that submission. Elias P. said (at para. 53):

"It seems to us that by the time the case is heard before a tribunal, there must be some indication as to what adjustments it is alleged should have been made. It would be an impossible burden to place on a respondent to prove a negative; that is what would be required if a respondent had to show that there is no adjustment that could reasonably be made."

We respectfully agree. Mr. Galbraith-Marten referred us to EB v. BA [2006] IRLR 471, but we can see nothing in that decision inconsistent with the decision in Latif.

Having established that point, Mr. Stilitz submits that the Tribunal never sufficiently identified what it was that the Appellants failed to do. That submission seems to us well-founded. Indeed it largely follows from our conclusion on Ground 4. Even if the Reasons could be read as making any findings as to the adjustments that should have been made, those findings were at a high level of generality: they were, essentially, that the Claimant should have been moved "to a non-hostile environment" or, at stages (3) and (4), that she should have been offered "other employment" in a non-prison environment or an academic secondment. We are not to be taken as saying that it was incumbent on either the Claimant, in advancing the case, or the Tribunal, in deciding it, to identify a precise alternative posting, with every detail worked out. The degree of specificity required would depend on the nature of the evidence and the issues. In some circumstances a finding that there were "plenty of other jobs" which a Claimant could have been moved to might be sufficient (at least for liability purposes). But it is necessary that that finding be made. The Tribunal never made a clear finding that (in relation to stages 1 and 2) there was another "non-hostile" prison psychology department or (in relation to stages 3 and 4) another suitable job elsewhere in the Prison Service or the Home Office to which the Claimant could reasonably have been transferred (or academic course to which she could have been seconded).

However the consequence of this conclusion is simply, again, that the reasonable adjustments issue requires to be remitted. Of more importance, because if it is correct the claim that the Appellants were in breach of their duty under s. 4A falls to be dismissed altogether, is the contention at para. 12.6 of the Notice of Appeal that, even if the Tribunal had made properly particularised findings that the Appellants were in breach of their duty under s. 4A, any such finding would have been perverse. To put it another way, the Appellants submit that if the reasonable adjustments issue were remitted to the Tribunal it could not reasonably find a breach. In considering this contention, it is important to appreciate that this Tribunal has available to it only a small part of the documents which were before the Employment Tribunal, only some of the witness statements and no note of the oral evidence. The Appellants have not undertaken the task of seeking to persuade us that the Tribunal's findings of primary fact were not open to it on the evidence: rather, their submission is that those findings of primary fact cannot found a case of breach. It is necessary to consider this submission separately in relation to each of the four stages identified in para. 84 above.

Stage (1). Mr. Stilitz submits that it was not open to the Tribunal to make any finding of a breach of the s. 4A duty in the autumn of 2003 because, of the only two alternatives in the frame, (a) transfer to the DSPDU was found to be impracticable and (b) the Appellants did indeed arrange a transfer to Deerbolt, albeit temporarily. We do not accept this submission. The Tribunal of course appreciated that the Claimant had been moved to Deerbolt, but its criticism was that the move was not permanent. For the reasons which we have already given, we do not think that it can be treated as having made any proper finding that that amounted to a failure to make a reasonable adjustment; but we are not prepared to say that such a finding would be impossible.

Stage (2). We are not in a position on the Tribunal's findings to say that the only conclusion open to it as regards the situation in February 2004 was that relocation to another prison psychology department was not a step required by s. 4A.

Stages (1) and (2): knowledge. We should raise at this point an issue which only clearly emerged in the course of the hearing before us. We had considerable concern as to whether, at this early date, the Appellants could reasonably have been expected to know that the Claimant was suffering from the disability that she was: if it could not, no duty under s. 4A would arise – see s. 4A (3) (b). Dr. Almond, while clearly putting them on notice of the Claimant's mental condition, had also expressed the opinion that it was "unlikely to be considered a disability" within the meaning of the Act. The Tribunal's only finding on the question of knowledge is in the short passage at the end of para. 50 of the Reasons quoted at para. 85 above. That passage is distinctly broad-brush. What is more, the Tribunal seems at least partly to proceed on the basis that it was enough that the Appellants believed the Claimant to be suffering from a physical disability: whether or not that belief may have been relevant to potential liability under s. 3A, we cannot see that it was relevant to liability under s. 4A, since the putative steps to be taken would have to relate to the actual disability from which the Claimant was in fact suffering. However, Mr. Galbraith-Marten drew our attention to a passage at the end of para. 8.17 of the Reasons, which (referring to the final paragraph of Dr. Almond's letter) reads:

"Dr. Almond put that matter in issue but no enquiries are made. Had such enquiries been made then the kind of information disclosed by Dr. Tyrie would have been brought to light and may well have affected Dr. Almond's conclusions."

In other words, the Tribunal appears to have taken the view that Dr. Almond's letter called for further enquiries to be made which at least might have revealed at this stage that the Claimant was in fact suffering from her actual disability. While there may be room for argument about whether that is a fair conclusion, in the light of it we are not prepared to say that there could be no rational basis for a finding that the Appellants had, or should have had, the requisite knowledge in the period between September 2003 and February 2004.

Stage (3)

Mr. Stilitz submits that it is plain beyond argument that there was no breach of the s. 4A duty as at the end of 2004. Mr. O'Malley had in August proposed a transfer to Low Newton, which would have achieved precisely what the Claimant had been seeking, namely her removal from the hostile environment of Frankland. She had been unwilling or unable – it matters not which – to take up that offer. She made that clear by, at latest, 19 October. It was not reasonable to expect more. The medical advice available to the Appellants, in clear terms from their own adviser (Dr. MacCarthy) and adequately clearly from the Claimant's (Dr. Varghese on behalf of Mr. Hariram), was that the Claimant was not well enough to return to work in any prison environment for the foreseeable future; and that was her own, firmly expressed, position also. How long that would be the case was unknown, but it would be at least until the disposal of her Employment Tribunal claims, which would on any view have been over a year away and might be much longer. In those circumstances there were only two possible alternatives, (a) to offer her employment in a non-prison environment (possibly outside the Prison Service altogether) or (b) to allow her request for "secondment" to pursue a Ph. D. As to (a), that had never been suggested by the Claimant herself and was flatly contrary to her expressed position that she would only return to work at Frankland. As to (b), Portsmouth University had made it clear that, on the basis of her own medical advice, it was not prepared to accept her until her Tribunal case was resolved, and any other university was bound to take the same view. In any event, the s. 4A duty could not require an employer to "second" a disabled employee indefinitely away from the job for which she had been recruited to an academic course – still less where the subject to be studied was one which was of no direct relevance to her work: indeed the Tribunal appears to have accepted this (Reasons para. 8.56).

We find those submissions compelling. We cannot see any basis on which the Tribunal could, on its own primary findings, conclude that either of the adjustments in question was required under s. 4A after 7 November 2004, being the date that Dr. MacCarthy confirmed - what the Claimant herself had been saying for some time - that she could not return to a prison environment for the foreseeable future. 7 November 2004 is the latest date after which we do not believe that it is arguable that the adjustments were required: it may be that the die was in fact cast some weeks or months earlier, but that is not something which we ought to decide on this appeal. The Tribunal's finding that it was "possible" that more sympathetic handling – in December 2004 – would have produced a solution along one or other of the lines in question was purely speculative: all its factual findings point the other way.

We have not lost sight of the fact that the disability from which the Claimant was suffering was, on the Tribunal's findings, caused, at least in substantial part, by the Appellants' failings. We accept that that fact is potentially relevant to the assessment of reasonableness under s. 4A: it may require an employer to do more by way of reasonable adjustment than would be necessary in other circumstances. But it cannot give rise to an unlimited obligation accommodate the employee's needs: cf. the analogous position in relation to unfair dismissal discussed in Royal Bank of Scotland plc v. McAdie (UKEAT/0268/06). At para. 12.5 of the Notice of Appeal the Appellants contend that in paras. 47 and 48 of the Reasons the Tribunal was, in effect, saying that the fact that from August 2004 onwards the Claimant was refusing to contemplate anything save a return to Frankland or secondment to Portsmouth had to be disregarded because "[her] intransigence had been brought about by [their] poor handling of the situation". Mr Stilitz submits that that was a misdirection because the only relevant question was whether, at any given time, a reasonable adjustment was available: if it was not, the fact that the situation might have been different if things had been handled differently earlier was irrelevant. Whether or not he has correctly characterised what the Tribunal was saying in those particular paragraphs (which is debatable), we accept his submission as to the law.

Stage (4). If the Claimant's employment came to an end on 31 January 2005 (see para. 51 above) then the duty under s. 4A would not apply in this stage: it applies only to the relationship of employer and employee. As noted it may be that an equivalent duty would arise under s. 16A, but we were not addressed on this. In any event, however, even if the employment continued, our conclusion in relation to stage (3) must apply a fortiori.

D. DISMISSAL (FINDINGS (3), (4), (6)/GROUNDS OF APPEAL 1-3, 9, 10)

Both findings (3) and (4) of the Judgment impugn Mr. Copple's decision to dismiss the Claimant in January 2005. But they do so in different ways. Finding (3) is that:

"That the claimant in breach of sections 4 (2) and 3A of the Disability Discrimination Act 1995 (as amended) was dismissed by the respondent in January 2005 for reasons relating to the claimant's disability which were not justified."

Finding (4) is as follows:

"That the respondent in breach of sections 4 (2) and 3A (5) of the Disability Discrimination Act 1995 (as amended) directly discriminated against the claimant by instructing her to work at Low Newton and thereafter used the alleged failure to comply as a ground for dismissing the claimant in January 2005."

Finding (4) is therefore something of a hybrid. It makes a finding of discrimination in relation to the "instruction" to the Claimant to work at Low Newton but it deploys that finding as an additional ground for finding the dismissal to be (directly) discriminatory.

Finding (6) addresses, in effect, Mr. Atherton's rejection of the Claimant's appeal. On its face it does so only on the basis that that rejection constituted the "true" dismissal of the Claimant if it was wrong about the date that her employment ended. Since we have held that the Tribunal's decision on that question was right, strictly speaking finding (6) is redundant. We should nevertheless consider it – so far as it makes findings under the 1995 Act - not only for completeness but in case we are wrong about the date of dismissal. We need not set out the actual terms of the finding, which is rather lengthy, since it simply repeats in relation to an alternative "July dismissal" the findings made in relation to the "January dismissal": the parts of it relating to disability discrimination are (c)-(e).

We will consider separately finding (4), since it has its roots in pre-dismissal events, and findings (3) and (6) which concern the actual dismissal decisions.

FINDING (4)

Finding (4) is based on paras. 57-59 of the Reasons. These are in the following terms:

"57. The letter written by Mr O'Malley ON 26 August 2004 expressed the intention to place the claimant at the Low Newton Prison for 3 months. The claimant had told Ms Liddell on the home visit on 6 August 2004 that she was not fit to return to work and that she had a sickness certificate for 13 weeks. Mr O'Malley obviously recognised that there were health issues because not only did he envisage that a return to Frankland could have such an adverse impact that the claimant would not be able to function to the required standard but even a return to another establishment required a reference to occupational health. Although Mr O'Malley did not discuss this proposal with the claimant Ms Liddell had raised the matter on the home visit on 6 August. The claimant resisted on the grounds that this proposed seemed to be punishing her by removing her from the work place but the discriminators were being left untouched. As the facts amply demonstrate the claimant's belief was well founded because in effect this was what was proposed. The terms of Mr O'Malley's letter are tantamount to an admission of the risks to the claimant if she were to return to an environment in proximity to the discriminators. Otherwise why would Mr O'Malley have had concerns about the consequences of a return to Frankland ? In making this proposal the respondent is turning on its head the widely accepted premises that you move the discriminators out not the discriminated against. This is a textbook example of precisely what an employer should not do in these circumstances.

58. Notwithstanding, these considerations Mr O'Malley sent his letter of 26 August and the proposed instruction was never withdrawn. Indeed, the claimant's alleged unwillingness to comply with this instruction was a matter on which both Mr Copple and Mr Atherton placed considerable emphasis in their reasons for dismissing the claimant and dismissing her appeal. The claimant on 19 October restated her position ion the proposed return to Low Newton and in relation to her medical; incapacity drew attention to further medical evidence. The serious deficiencies on the part of the respondent regarding the handling of the medical evidence are rehearsed fully elsewhere in this judgment. However, even Dr McCarthy despite material evidence being withheld from him, reached the clear conclusion that the claimant was not fit to return to work in a prison environment at that time. The respondent's defence is that the proposal was a reasonable management response to the situation, it would enable the claimant to make progress on her development plan away from Frankland and it accorded with the June 2004 advice of Dr Welch. However, there was substantial contraindication on which the respondent ought to have acted but what is utterly inexplicable is the respondent's to Dr McCarthy's conclusion of unfitness to work in a prison environment. The dismissing officer apparently relied on this medical report and if he did so then it was on a very selective basis. There was clear unequivocal medical evidence that the claimant was unfit to return to work at Low Newton.

59. Both Mr Copple and Mr Atherton relied on the claimant's alleged unwillingness to return to Low Newton as part of the grounds of dismissal. From 13 December 2004 the respondent had actual knowledge of disability. When Mr Atherton made his decision there had also been a judicial declaration of disability. The respondent therefore with actual knowledge of disability and having received a specific medical advice of the claimant's unfitness to return to work a prison environment in dismissing the claimant relied on the claimant's alleged unwillingness to return to work at Low Newton. If the respondent had received medical advice that a non-disabled employee was unfit to return to work in a prison environment, say because of multiple fractures, it is inconceivable that such advice would have been followed. Therefore reliance on the Low Newton instruction is a course of conduct that constitutes direct discrimination in respect of which there is no defence of justification."

We have a number of observations on these paragraphs.

First, we are bound to say that we find the criticism of the Appellants, and Mr. O'Malley in particular, in para. 57 hard to reconcile with the thrust of the rest of the Tribunal's findings. The last two sentences appear to be saying that what the Appellants should have done was to transfer "the discriminators"^[5] away from Frankland. If this is simply a repetition of the point previously made about the failure to exclude Ms. Hunter, so be it. On the face of it, however, the Tribunal is saying that all the culprits should have been "moved out". We could in principle understand a case that the Appellants were under such a duty (presumably under s. 4A), although it would be quite an ambitious submission given the number of people apparently involved. But no such case is considered anywhere else in the Reasons, nor is any finding to this effect made. We accordingly read this as a throw-away comment, albeit that the throw is made with some force.

Secondly, the Tribunal appears to be suggesting that the "instruction" to the Claimant to return to Low Newton is inconsistent with the implicit recognition in his letter that she would be at risk if she returned to Frankland. We do not understand this. It is precisely because Mr. O'Malley recognised the difficulties that would face the Claimant in returning to Frankland that he proposed that she return, at least for the first three months, to Low Newton. We can understand the point being made that that proposal implicitly acknowledges that the Claimant should not have been required to return to Frankland in October 2003; but that does not appear to be what the Tribunal is saying here.

Thirdly, the finding in para. 58 that the "instruction" to work at Low Newton was contrary to the medical evidence is unsustainable as at the date of Mr. O'Malley's letter. There was no such evidence at that point. Evidence did of course come in later that the Claimant was now too unwell to work in any prison environment; but in the light of that evidence, which was obtained precisely because Mr. O'Malley asked for a report on that very question, the proposal was not persisted in. We consider this more fully below.

Fourthly, and crucially for the purpose of finding (4), the description of Mr. O'Malley as "instructing" the Claimant to work at Low Newton seems to us to be clearly inapt. The letter of 26 August 2004 is – unlike most of the Appellants' other correspondence in this case – carefully and sensitively written. It starts by setting out the context and Mr. O'Malley's desire to find a "constructive way forward" and to "assist … a successful return to work" by affording the Claimant "a period of supervised practice in a supportive environment". It refers to Dr. Welch's view that there is no medical reason why she should not return to work provided she were given proper support. In that context, he says: "I intend for you to return to work at HMP Low Newton where you will be provided with regular supervision from Angela [Taylor]". The letter goes on to explain the benefits of this course and why a return to Low Newton is better than a return to Frankland. In the final paragraph he makes it clear that he will not proceed until he has received medical confirmation "that … you are medically fit to undertake the work outlined and that Low Newton is a suitable working environment for you". We do not see how that fairly can be characterised as an "instruction" to return. It is, in essence, a proposal, put forward in what Mr. O'Malley believed to be the Claimant's best interests. It was open to the Claimant to disagree, as she in fact did; and it was explicitly subject to medical advice. If Mr. O'Malley had sought to insist, that would indeed have been an instruction, and the question would then have arisen as to whether it was a reasonable instruction; but things never got that far. The later medical advice was to the effect that the Claimant was not fit to return to any prison environment, and the Low Newton proposal was not pursued. Mr. Galbraith-Marten submitted that it was wrong to look at the letter in isolation. It was necessary to have regard to the sequence of events into which it fitted. But we can see nothing in the surrounding context as found by the Tribunal that would entitle it to treat the letter as "tantamount to" an instruction.

Accordingly, we cannot see that the sending of the letter of 26 August 2004 – whether or not described as an instruction – was an act of discrimination against the Claimant. We uphold Ground 9 of the Notice of Appeal.

We turn to the other aspect of finding (4). The Tribunal believed that part at least of Mr. Copple's reason for dismissing the Claimant was that she had refused Mr. O'Malley's "instruction" to work at Low Newton: this is made explicit in para. 8.54 of the Reasons. It is true that Mr. Copple's letter of 13 January 2005 refers to her having refused the "alternative workplace, back to work and development plan". But it does so in the context of addressing the points made by the Claimant in her letter of 19 December. Mr. Copple's original letter of 7 December 2004 had made it clear that the Claimant's dismissal was being proposed on the straightforward basis that she had been off work for nearly ten months and the medical advice was that there was no prospect of her returning in the foreseeable future – that is, in the unlovely jargon of the civil service, for "medical inefficiency"; and that is the point also made in the fourth paragraph of the letter of 13 January. That is what one would expect. It was of course a necessary part of the story that the Claimant was saying that she would not return to work; but the reason why, by this date, she was saying that was that her doctors – like the Appellants' – were saying that she was too ill to do so. The same is equally true of Mr. Atherton's reasoning, to the extent that that is relevant. We do not therefore believe that the second part of finding (4) is well-founded.

There is another aspect of finding (4) on which we should briefly comment. The finding is expressed to be of "direct" discrimination by the Appellants contrary to s. 3A (5), i.e. that in "instructing" the Claimant to work at Low Newton, and dismissing her (in part) for refusing that instruction, they were acting not simply for a reason related to her disability but on the ground of that disability. The reasoning behind that finding appears at the end of para. 59. Mr. Galbraith-Marten told us that he did not seek to support the Tribunal's reasoning or conclusion: as we understood it, his position was that he relied only on "ordinary" s. 3A (1) discrimination. If this were the only flaw in the Tribunal's reasoning it would be necessary to remit this part of the claim for a finding on the issue of justification (unless that were thought to be unarguable). But since it is not we need not consider the point further.

Accordingly, finding (4) is wrong in law and must be quashed.

FINDINGS (3) & (6)

As the Tribunal noted at para. 33 of the Reasons, the Appellants – inevitably - accepted that "the act of dismissal on the grounds of medical inefficiency was for a reason related to the claimant's disability". The issue as regards the 1995 Act was thus simply whether dismissal was justified, by reference to the test defined in Post Office v. Jones [2001] ICR 805, that is to say whether it was "outside the range of reasonable responses" (see paras. 28, per Pill LJ, and 41, per Arden LJ).

As to this, the Tribunal's reasoning appears at paras. 33-35 of the Reasons. Following some introductory points, para. 33 reads as follows:

"… The respondent cannot rely on Jones v Post Office in relation to Dr McCarthy's report. First of all it withheld a significant body of relevant material information from Dr McCarthy. Secondly, it had deliberately not invites its occupational health advisers to advise in the question of disability. Thirdly, it failed to follow up Dr Almond's reference to disability. Fourthly it did not seek clarification of Dr McCarthy's report when it clearly demanded clarification. Fifthly, it did not engage in a dialogue with the claimant on the contents of Dr McCarthy's report and consider her responses in the light of her understanding of the medical evidence. Sixthly, when it became aware of Dr Tyrie's findings it failed to go back to either Dr McCarthy or the claimant inviting re-consideration of their respective positions. Finally, an employer cannot attempt to rely on a medical report for the purpose of dismissing someone when it has actual knowledge that puts in doubt (or, indeed contravenes) the conclusions of that report for the purposes the employer intends to rely on it. All of these considerations indicate that the respondent's conduct was undoubtedly outwith the range of reasonable responses. A reasonable employer acting reasonably would not proceed in this way. The justification advanced by the respondent is demonstrably insufficient."

Paras. 34 and 35 develop similar themes. We need not quote them in extenso. The repeated point is that Mr. Copple failed to consider the material which he had available to him. There is reference in para. 34 to the duty to consider reasonable adjustments which the Tribunal believed to derive from Mid-Staffordshire. Towards the end of para. 35 the Tribunal says:

"When an employer in full knowledge of a person's disability blatantly ignores indisputable facts, disregards material information and fails to address fundamental questions which arise from that information and those facts, such conduct simply blows out of the water any possible defence of justification."

The reasoning in those paragraphs is clear. The essential point to note about it is that all the particular criticisms advanced by the Tribunal are essentially aspects of a single criticism, forcefully expressed here and elsewhere in the Reasons (particularly paras. 8.54-8.57, of which they are essentially a summary), namely that as a result of a mixture of incompetence and insouciance the Appellants' managers never sought or acquired a properly-informed and comprehensive understanding of the Claimant's condition and, in particular, never addressed the question – which it should have been obvious needed to be addressed – as to whether she was disabled. We have no doubt that the Tribunal was entitled to reach those overall conclusions, even if there may be room for argument about the validity of some of the specific points raised. But we do not agree that they are determinative of the question of justification. The straightforward question for the Tribunal was whether the Appellants were justified in dismissing an employee who had been off sick for eleven months and who, on the uncontested medical advice, was not going to be fit to return to her usual work for the foreseeable future (if ever). The fact that the Claimant's sickness amounted to a disability (as almost any long-term sickness will do) does not of course afford any answer to the question of justification - see Royal Liverpool Children's NHS Trust v. Dunsby [2006] IRLR 351, where Judge Richardson said (at para 16 (p. 353)):

"The provisions of the Disability Discrimination Act 1995 do not impose an absolute obligation on an employer to refrain from dismissing an employee who is absent wholly or in part on grounds of ill-health due to disability. The law requires such a dismissal to be justified so a tribunal does not answer the question whether a dismissal is justified merely by saying that it was, in part, because the employee was absent on grounds of disability."

It is also in our view irrelevant that the Appellants' consideration of the issue may have been inadequate or procedurally flawed: the question of justification is (at least for these purposes) objective.^[6] It may in principle be relevant (as with the questions of reasonable adjustment and unfair dismissal - see para. 97 above) that the Claimant's illness was caused or contributed to by the Appellants' own failings; but in practice that consideration is likely to be operative only in marginal cases, since it cannot be the law that an employer is never justified in dismissing a disabled employee for whose disability he is partly to blame.

Applying that approach, on the facts of the present case we do not see how it could even arguably be said to have been outside the range of reasonable responses for the Appellants to dismiss the Claimant in January 2005, however deplorable their failures over the previous eighteen months. She had been off work for eleven months and there was no prospect of her being able to return to work for the foreseeable future: cf. Home Office v. Collins [2005] EWCA Civ 598. We are not in fact clear how controversial this conclusion is. Before us Mr. Galbraith-Marten sought to defend the Tribunal's decision that the dismissal could not be justified primarily, if not wholly, on the basis of his submissions that the Appellants remained as at January 2005 in breach of their duty under s. 4A. We have however found against him on that question.

The same conclusion applies, indeed still more clearly, to Mr. Atherton's decision in July. By that time the medical advice was unequivocal that the Claimant would never be well enough to return to work.

Accordingly, findings (3) and (6) (c)-(e) are also wrong in law and must be quashed.

(E) SICK LEAVE EXCUSAL (FINDING (7)/GROUNDS OF APPEAL 12-13)

The Claimant included in her claim form issued on 4 February 2005 a claim in the following terms:

"BMI Health Services refused my sick leave excusal claim. I had been granted sick leave excusal for my first period of sickness absence … but then refused sick leave excusal from 25^th February 2005 [sic – but the intended date must be 2004]. This was so even though my claim for sick leave excusal was for exactly the same thing as it was for the first claim. It is my belief that the BMI official that dealt with my application together with my employer discriminated against me not allowing my second claim."

That claim was reflected in the list of issues at para. 13.1.13 as "failing to grant the claimant sick leave excusal", being one of the acts of discrimination relied on contrary to s. 3A (1). Accordingly, the pleaded claim related to the decision communicated by Mr. Copple on 13 January 2005 not to grant sick leave excusal, in reliance on the letter from Dr. Adeodu.

Finding (7) of the Judgment reads as follows:

"That in relation to the process of granting sick leave excusal the respondent discriminated against the claimant and subjected her to detriment contrary to sections 4 (2) and 3A of the Disability Discrimination Act 1995 (as amended)."

The reference to "the process of granting sick leave excusal" is very general but it can in our view only properly be read as referring to the refusal in January 2005 of sick leave excusal for the Claimant's absence from February 2004. That was the only issue in relation to sick leave excusal which was before the Tribunal. (It is also significant – since the Tribunal is meticulous about this point – that the reference is only to s. 3A of the amended Act, which means that it was not intending to make any finding in relation to the period before 1 October 2004.)

The reasoning underlying finding (7) appears at paras. 39-42 of the Reasons. It is not necessary to set these out in full. The structure appears to be as follows. Para. 39 summarises the Appellants' responses to the Claimant's complaint, namely (a) that she had not suffered a qualifying injury; (b) that in any event excusal could not be granted without medical certification and that as at the date of issue of proceedings (4 February 2005) there had been none, Dr. Adeodu having refused certification; and (c) that the true reason for the absence was not any sickness suffered by the Claimant but her objection to the Appellants' refusal on 23 February 2004 to suspend the development plan and her wish to devote herself to the pursuit of her Tribunal claims. Paras. 40-41 then rehearse a number of the Tribunal's previous criticisms of the Appellants' failure properly to address the problems caused by the Claimant's sickness absences, from late 2003 to February 2006: they include, though they are not limited to, criticisms of the handling of the second sick leave excusal claim. Some of the points which it makes were criticised by Mr. Stilitz, but it is unnecessary for us to deal with those criticisms at this stage. Apparently on the basis of those matters, the Tribunal concludes at the beginning of para. 42 that the Claimant had proved matters sufficient to shift the burden of proof to the Appellants. The Tribunal then addresses the Appellants' three responses as identified at para. 39 (though, rather confusingly, it does so in a different order and refers to Dr. Evans rather than Dr. Adeodu as the relevant doctor) and finds that they are not proved. It concludes:

"The burden of proof was not discharged. We find that there was discrimination and detriment."

With respect to the Tribunal, that reasoning does not focus on the correct question. The primary issue which it had to decide was whether Mr. Copple's refusal of sick leave excusal for the second period in the letter of 13 January 2005 was for a reason related to the Claimant's disability. If it found that it was, the Tribunal had to consider whether the refusal was justified. The Tribunal does not address those issues at all. If it had done so, the answer would, we believe, have been clear. Mr. Copple's reason for his decision was that Dr. Adeodu of BMI had on 4 January 2005 reported that the Claimant did not qualify for sick leave excusal: that was his avowed reason, and although in principle it was open to the Tribunal to find that, consciously or unconsciously, there was in fact some other reason, there was no such finding and no basis for one. The Tribunal found that Dr. Adeodu's conclusion was wrong, but that is another matter. The question then is whether that was a reason related to the Claimant's disability. We are clear that it was not. The point is essentially the same as that discussed under heads (A) and (B) above. No doubt the Claimant's sickness absence was "related to" her disability, so that any decision taken wholly or partly (and consciously or unconsciously) because of that absence would be a decision taken for a disability-related reason – as the dismissal decision was. But Mr. Copple and Dr. Adeodu were not saying (or thinking) that the Claimant failed to qualify for sick leave excusal because she had been absent: it was because she had been absent that the question of excusal arose at all, but the reason for her non-qualification was a judgment about whether she had suffered a qualifying injury. As we have already observed, the fact that an employer behaves unjustifiably towards a disabled employee, even in a factual context which would not have arisen but for the disability, does not by itself constitute discrimination within the terms of s. 3A. As we have also already observed, s. 17A (1C) does not help on this point. The Claimant was obliged to show facts which could found a conclusion the Appellants had acted unlawfully: that necessarily includes facts tending to show that Mr. Copple had acted for a disability-related reason. The facts rehearsed in paras. 41 and 42 were not directed to that question at all.

The Tribunal may well have been entitled to find, as it did, (a) that the Claimant was in fact entitled to sick leave excusal and (b) that the reason why Dr. Adeodu had concluded otherwise was because, by reason of the Appellants' negligence (indeed "negligence of a high order"), he had not been given the full facts. In those circumstances we can well understand its wish to find that the refusal was unlawful. But discrimination under s. 3A was not an available route. The Tribunal's findings might in principle mean that the Appellants were liable to the Claimant at common law or, possibly, that they had failed to make a reasonable adjustment under s. 4A. But those were not the basis of its finding.

We should say that this approach to the sick leave excusal issue was not expressly advanced by Mr. Stilitz. He focused instead on challenging the Tribunal's conclusion that the Claimant was entitled to sick leave excusal. But the basis on which we prefer to decide the point is the same as that which he advanced on Heads (A) and (B), on which we heard full argument.

OVERVIEW AND CONCLUSION

The discussion above has involved much detailed analysis of the law and the Tribunal's reasoning. It may be useful to step back and take an overall view of the effect of our conclusions. We can do so as follows:

(1) The Tribunal was entitled to find that the Appellants' handling of the problems which arose over the course of the Claimant's employment was characterised by a high degree of incompetence and insensitivity. At some points its evident indignation has led it into individual findings which are unsustainable and to the use of some rather intemperate adjectives; but that is no reason to doubt the validity of its overall view of the Appellants' conduct.

(2) But a general finding that the Appellants behaved badly goes nowhere. It is necessary to consider the individual acts and omissions complained of, and to do so on a stage-by-stage basis, judging each complaint in the context of the situation as it was at the date in question.

(3) Taking that approach, we believe that it is arguable that the Appellants' acts and omissions in the earlier part of the period constituted breaches of their duty to make reasonable adjustments. Whether they in fact did so depends on a careful assessment both of what the Appellants knew or should have known after 19 September 2003 about the nature and extent of the Claimant's disability and of what it was reasonable and practicable for them to do in the light of what they knew or should have known. Unfortunately, partly because of its (entirely pardonable) reliance on the Mid-Staffordshire case, the Tribunal failed to conduct the necessary assessment, which will now have to be carried out by the Tribunal to which the case is remitted.

(4) However, a time came after which we believe that the situation was unarguably irretrievable: we have identified 7 November 2004, being the date of Dr. MacCarthy's report, as the latest possible point at which this occurred, though it may have been earlier. From that point on, the opportunity for reasonable adjustment had passed and the Claimant's dismissal was, for the purpose of a claim for disability discrimination, unquestionably justified according to the test in Post Office v. Jones.

(5) The fact that that "irretrievability" may have been caused or contributed to by the Appellants' earlier failings does not mean that their acts and omissions once that point had been reached could not be justified. The breaches or acts of discrimination alleged must be assessed by reference to the state of affairs at the time in question. Of course the fact, if proved, that the ultimate irretrievability of the situation and the consequential dismissal of the Claimant were caused by earlier breaches by the Appellants of their duty under s. 4A may enable the Claimant to recover compensation for them as consequences of those earlier breaches.

(6) If the Appellants' failures in the period prior to the Claimant's dismissal give rise to liability under the Act, they do so as breaches of the duty under s. 4A. There is no basis in the Tribunal's findings of fact for treating them as acts of discrimination under s. 3A (1). S. 4A is in principle the appropriate route for findings of liability against employers who fail to address the problems of their disabled employees, even where the failures are found, as here, to be culpably negligent. S. 3A is only engaged where the disability is related to the employer's reason for acting in the manner complained of.

That approach seems to us both to be right in law and to lead to a fair result. If the Appellants are to be found liable, it should be on the basis of the acts and omissions which led to an impossible situation arising rather than on the basis of what they did once that situation had developed.

It follows that we allow the appeal as regards findings (3)-(5), (6) (c)-(e) and (7)-(10) in the Tribunal's Judgment. The case must be remitted to the Employment Tribunal to decide whether the Appellants were in breach of their duty to the Claimant under s. 4A of the 1995 Act in failing to relocate her to another prison, or move her to alternative employment in the Prison Service or the Home Office, at any date between 19 September 2003 and 7 November 2004. In all other respects the Claimant's claims under the 1995 Act are dismissed.

The remaining question is whether the remitted issues should go back to the same Tribunal or to a fresh Tribunal. It was in fact the position of both parties that they should go back to a fresh Tribunal, but we have not treated that agreement as determinative. We have regard to the guidance in Sinclair Roche and Temperley v. Heard [2004] IRLR 763. There would plainly be some savings in time if the matter were heard by the same Tribunal, though it is not clear how great those savings would really be given the limited nature of the remitted issues. But we believe that that factor is outweighed by the factors in favour of remission to a fresh Tribunal. While we give full weight to what Burton P. in Sinclair Roche and Temperley refers to as "Tribunal professionalism", we believe that it would be very difficult for the Watt Tribunal to approach the remitted issues without being affected by the views which it had taken on other issues on which we have had to hold that it erred. And in any event we believe that it would be reasonable for the Appellants to feel less than confident that it could do so, particularly in view of the very strong terms in which the Tribunal at several points expressed itself.

This is not a happy outcome. It will be difficult for all concerned, and in particular the Claimant, to have to go over these very fraught issues again. Although the Appellants have succeeded in this appeal, they remain at risk on the remitted hearing; and the grounds on which they have succeeded do not impeach many of the Tribunal's findings about the very poor quality of their management of the problems which arose in the Claimant's employment. We would strongly encourage the parties to consider whether there is even now a chance of these claims being resolved by compromise.

Note 1    Strictly the appropriate party to the proceedings is - or was until 9 May - the Home Secretary, but no point is taken on this.    [Back]

Note 2    The evidence on this aspect was particularly unsatisfactory because Dr. Tyrie’s report was not put before the Tribunal until after Ms. Liddell had given evidence, and she was not recalled: see Reasons para. 8.34. Mr. Stilitz told us that the background was that the Claimant had expressed great concern, which had been viewed sympathetically by Mr. Garnon, about Dr. Tyrie’s report having any unnecessary circulation; and his instructions were that Ms. Liddell had for that reason taken it on herself not to show it to Mr. Copple. Mr. Galbraith-Marten denied that anything said by the Claimant or Mr. Garnon could have been understood by Ms. Liddell as precluding the report being shown to responsible management. We need not reach any view ourselves on whether or to what extent Ms. Liddell’s conduct was culpable.     [Back]

Note 3    Though it is not quite as ill-structured as the Reasons make it appear by printing it without any paragraph breaks at all (see para. 8.51).    [Back]

Note 4    The relevant paragraph of the submissions is para. 153. The reference is in fact to the statutory defence under s. 58 (5). The fact that the Tribunal does not address that defence is further evidence that it was not seeking to find the Prison Service liable on this basis.     [Back]

Note 5    This term is not, strictly speaking, apt. The hostile conduct investigated by Graham/Blackburn included some offensive remarks about the Claimant’s supposed physical disability but on Mr. Garnon’s findings the Claimant was not at the time in question suffering from any disability; and the other remarks and conduct, though thoroughly nasty, did not constitute “discrimination” of any other kind.     [Back]

Note 6    We were not addressed on the effect in this context of the discussion in O’Hanlon v. HM Commissioners of Revenue and Customs [2007] IRLR 404, where the Court of Appeal – with, at least on the part of Sedley LJ, expressed reluctance - applied what was described as the “subjective” test of justification adopted in Jones. But the question there canvassed as to whether the test is “subjective” or “objective” has no direct application to the question in the present case. The question here is not whether a decision which a tribunal believes to be wrong may nevertheless be “justified” if a reasonable employer might take a different view. Rather, it is whether a decision which the tribunal – in this case ourselves – believes to be reasonable is nevertheless to be treated as unjustified because the employer can be shown to have been careless or unreasonable in his “subjective” thought processes or in his procedures. For the purpose of the latter issue at least we are sure that the test required by the 1995 Act is “objective”. Although Pill LJ in Jones observed that the “range of reasonable responses” test which he propounded was similar to that applied in unfair dismissal cases, he did not suggest that the exercises under s. 98 of the Employment Rights Act 1996 and under s. 3A (2) of the 1995 Act were identical: indeed he acknowledged that they were not – see para. 28 at p. 815 D-E (“different but not very different”). If the position were otherwise there would be a very unsatisfactory mismatch between the effect of s. 3A (1) and that of s. 4A as now established in Tarbuck.     [Back]