Beart v HM Prison Service

Under Part II of the Disability Discrimination Act 1995, a tribunal must determine whether a reasonable-adjustment duty arose, whether reasonable steps were omitted, and whether the omission was justified. It need not follow those steps in a rigid sequence if its reasons show that the statutory requirements were addressed. Relocation may be a reasonable adjustment where medical evidence links the disability to the existing workplace and indicates that relocation could preserve employment. The employer bears the burden of proving objective justification. Its unexplained failure to provide evidence of the reason for non-compliance is highly significant. On a second-tier appeal, supported tribunal findings are not displaced merely because another tribunal could have reached a different conclusion.

HM Prison Service appealed to the Court of Appeal from the Employment Appeal Tribunal’s order of 21 May 2002, which had dismissed its appeal from an Employment Tribunal sitting at Ashford. The Employment Tribunal’s decision, sent on 27 March 2001, upheld Jacqueline Beart’s complaints of unfair dismissal and disability discrimination under the Disability Discrimination Act 1995.

Mrs Beart suffered from depression and was disabled within the meaning of the Act. An occupational health report recommended relocation because her illness was connected with difficulties at her existing workplace, but the recommendation was not implemented. She was later dismissed following disciplinary proceedings concerning alleged outside work while on sick leave. The central issues were whether the Tribunal had properly addressed the reasonable-adjustment duty and justification, and whether its unfair-dismissal findings were legally unsustainable or perverse.

Appeal dismissed unanimously. Lord Justice Peter Gibson gave the leading judgment, with Lord Justices May and Scott Baker agreeing.

1. Disability discrimination. The Tribunal’s additional inquiry into whether the failure to make an adjustment amounted to discrimination was unnecessary. Under sections 5(2) and 5(4) of the Disability Discrimination Act 1995, a failure to comply with a section 6 duty constituted discrimination once the failure was unjustified. The error created an extra hurdle but did not undermine the Tribunal’s conclusion.
2. The Tribunal was not required to follow the sequential approach described in Morse v Wiltshire County Council [1998] ICR 1023 mechanically. It was enough that its reasons showed that it had considered the statutory duty, reasonableness and justification. Reading paragraphs 70 to 74 of the Extended Reasons as a whole, the Tribunal had considered reasonableness and found relocation to be a reasonable step.
3. The arrangements governing Mrs Beart’s employment at Swaleside placed her at a substantial disadvantage because she could not continue working there. Medical evidence linked the illness to the workplace and recommended relocation. The substantial possibility that relocation would have enabled continued employment was relevant to the extent to which the adjustment would prevent the disadvantage. The employer produced no contrary evidence on practicability, cost, disruption, resources or assistance.
4. Justification had to be assessed objectively and the burden lay on the employer. Direct evidence of the reason for non-compliance was not indispensable, since an exceptional case might permit justification to be inferred from the circumstances. Nevertheless, the employer’s failure to explain its inaction despite two requests, and its failure to give evidence on the issue, were highly significant. The Tribunal was entitled to conclude that justification did not arise.
5. Unfair dismissal. The Tribunal’s assessment included the guidelines in British Home Stores Ltd v Burchell [1978] IRLR 379. On this second-tier appeal, the Court of Appeal was concerned principally with the correctness of the Tribunal’s decision. Its findings were supported by evidence and were not perverse merely because another Tribunal might have reached a different conclusion. The defects identified included an inadequate investigation, an unfair disciplinary hearing, lack of reasonable grounds for the belief in misconduct, and dismissal outside the range of reasonable responses. The appeal was therefore dismissed, with costs payable by the appellant.

• Court of Appeal (Civil Division) dismissed HM Prison Service’s appeal. [2003] EWCA Civ 119
• Employment Appeal Tribunal dismissed the employer’s appeal by order dated 21 May 2002.
• Employment Tribunal, Ashford upheld the complaints of unfair dismissal and disability discrimination by a decision sent to the parties on 27 March 2001.