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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> HM Prison Service v. Beart [2002] UKEAT 650_01_2105 (21 May 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/650_01_2105.html Cite as: [2002] EAT/650/01, [2002] UKEAT 650_01_2105, [2002] UKEAT 650_1_2105

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APPEARANCES

 

For the Appellant	MR ASHLEY UNDERWOOD QC (One of Her Majesty's Counsel) Instructed by: The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS
For the Respondent	MR JAMES LADDIE (of Counsel) Instructed by: Clarke Kiernan 2-4 Bradford Street Tonbridge Kent TN9 1DU


 


MR JUSTICE LINDSAY (PRESIDENT)

1. The Employment Tribunal at Ashford held the Prison Service unfairly to have dismissed Mrs Beart and to have discriminated against her unlawfully on the ground of her disability, the mental one of depression. The Service appeals.
2. On 10th May 1999 Mrs Jacqueline Beart, a temporary Executive Officer in the Administration Department of H.M. Prison Service, presented an IT1. She claimed for Wrongful Dismissal, Unfair Dismissal, and under the Disability Discrimination Act. The disability she said she suffered from was "clinical depression". The Prison Service's failures, she said, had led to a breakdown in the trust and confidence between employer and employee and she had tendered her resignation on 28th January 1999. Her claim for Unfair Dismissal was a claim of the constructive dismissal variety. She served Particulars and then amended Particulars.
3. On 3rd September 1999 the Prison Service responded with its IT3. At that stage its case was that Mrs Beart had resigned following a disciplinary investigation as to an offence the sanction for which she knew was dismissal. All or parts of her claim, said the Prison Service, were out of time. No admission was made as to her state of health and it was, at that stage, not admitted that she had a disability falling within the Act.
4. The matter was heard in February 2001 over 7 days at the Employment Tribunal at Ashford under the chairmanship of Mr D.E. de Saxe. In addition the Tribunal considered the matter between themselves on an eighth day, 1st March 2001. On or about the 2nd May 2000 the Prison Service had admitted that it had dismissed Mrs Beart and that she was disabled within the Act, the disability being "depression". At the Tribunal both sides were represented by Counsel, indeed, the same Counsel who appeared also before us, namely Mr Ashley Underwood Q.C. for the Prison Service and Mr James Laddie for Mrs Beart. The unanimous decision with extended reasons (some 33 pages of typing) were sent to the parties on 27^th March 2001. The Tribunal held that Mrs Beart had been unfairly dismissed; she had been unlawfully discriminated against by the Prison Service on the grounds of her disability. The question of remedy was adjourned.
5. On 4th May 2001 the Prison Service appealed, both as to disability discrimination and unfair dismissal. We will later deal with those 2 subjects separately but first we shall set out something of the background common to both.
6. At the time of the most material events Mrs Beart was aged 33-35 years old. After service in the Foreign and Commonwealth Office and the Customs & Excise she became, in April 1990, an Administrative Officer at H.M. Prison Swaleside on the Isle of Sheppey. Her appraisals were invariably good. She was only a temporary Executive Officer, despite holding that rank for more than 12 months. Below the more senior grades the staff at the prison were divided into prison officers ("Unified Grades") on the one hand and civil service ("Non-Unified Grades") including Mrs Beart, on the other.
7. In September 1997, after some conflict with another member of the staff, Mrs Beart went off work, suffering from depression. She never returned to work. Having received some reports which excited its suspicion, the Prison Service enquired into whether, whilst claiming sick pay, she was engaged in a business activity. Mrs Tetley, Head of Management Service at Swaleside, commissioned two private investigators, Mr and Mrs Luck. Mrs Beart, as was well known, owned a local shop and the question arose as to whether she was working in it whilst off sick. The Lucks reported to the Service. The investigation led to disciplinary proceedings against Mrs Beart. Mrs West, then Deputy Governor of another prison, Maidstone, chaired the hearing and decided that Mrs Beart should be dismissed for gross misconduct. The finding of gross misconduct was notified to Mrs Beart on 22nd December 1998 and the notification of dismissal was on 11th February 1999. Between those two dates, Mrs Beart wrote a letter of resignation. The Prison Service argued that it had dismissed Mrs Beart and the Tribunal accepted that interpretation of events, against which conclusion there is no cross-appeal.

UNFAIR DISMISSAL

8. The Tribunal held that the Prison Service's investigation into whether Mrs Beart was engaged in a business activity while off sick was "woefully inadequate" and that when questions came to be put to Mrs Beart in the course of her disciplinary investigation they were superficial and inadequate. The Tribunal considered that for the Service to have withheld from Mrs Beart, despite her requests, the Lucks' "Schedule of Charges" (in effect, the Lucks' invoice to the Prison Service) was a serious omission and a failure to behave reasonably on the part of the Service (as the Schedule could have illuminated the inadequacy of the Lucks' investigation or the unfairness of their report to the Prison Service). On an examination of the well-known three-part test "Burchell" test derived from British Home Stores -v- Burchell [1978] IRLR 79, the Tribunal held that the Service did have a genuine belief in Mrs Beart's guilt on the charge of misconduct put to her but that there had not been an adequate investigation of the facts and that accordingly the evidence before the Service did not support the belief which the Service had. The Tribunal added that one of the charges was not properly laid and in any event was not one of gross misconduct and that dismissal did not fall within the band of reasonable responses. Moreover, there was, held the Tribunal, a procedural flaw in the conduct of the disciplinary hearing. Accordingly the Tribunal held Mrs Beart had been unfairly dismissed.
9. Mr Underwood argues that in the face of the evidence the Tribunal's conclusion as to unfair dismissal was perverse. It will be convenient to subdivide consideration into five sub-headings:

(a) the private investigators' report;

(b) the withholding of the Lucks' Schedule of Charges submitted to the Service by the private investigators;

(c) the Prison Service's initial disciplinary investigation;

(d) the allegations raised against Mrs Beart and the appropriate sanctions;

(e) the conduct of the disciplinary proceedings.

(a) The private investigators' report

10. The private investigators, the Lucks, reported on seeing Mrs Beart on 8th June 1998 at the small dress shop which she owned. Mrs Beart opened the shop. The Lucks' investigator went into the shop and bought a small item, being served by Mrs Beart. No one else, it would seem, was in the shop at the time. In conversation with the investigator Mrs Beart said she spent about 2 hours a day "doing the books" and her answers suggested it was she who ordered the stock for the shop. The observation of Mrs Beart at the shop was, so far as one can see, over in only a few minutes on that occasion.
11. The next day, 9th June, Mrs Beart was again seen to open up the shop. Again an investigator made a small purchase and in conversation was left with the clear impression that Mrs Beart owned the business and was in overall control of it. Again the observation of Mrs Beart at the shop was of only a few minutes duration.

(b) The Lucks' Schedule of Charges

12. Whilst Mrs Beart was shown the Lucks' report to the Prison Service which set out their report as to the 8th and 9th June she was not shown their Schedule of Charges. Her then Solicitors had twice asked for particulars of the evidence against Mrs Beart as to her conduct of the shop and she herself had asked for the complete report, including the investigators' costs and their terms of reference. She was shown only the Lucks' report as to the events of the 8th and 9th June 1998; the rest was refused. But the Schedule of Charges shows that the Lucks had also made (or sought to make) observations on 19th May, 1st June, 2nd June and 5th June totalling 6 hours of which 4½ were observation of Mrs Beart, all of apparently no consequence at all. Whilst the amount the Lucks charged the Service was, no doubt, irrelevant and could have been redacted, had Mrs Beart or her then advisers known that the few minutes of effective observation on 8th and 9th June were but a small part of an overall far larger but ineffective observation it could have led to a different approach to the disciplinary hearing, in which no challenge to the Lucks' report was raised. It is not as if Mrs West, who conducted that hearing, did not have the Schedule of Charges before her; she did, but failed to notice its significance. Nonetheless, she had before her evidence which Mrs Beart had been refused. That a challenge to the Lucks' conclusion was possible is plain from the Tribunal's own later conclusions that Mrs Beart used occasionally to visit the shop, doing so for the sake of company when she was ill, but that she did not work in the shop on such visits.
13. In relation to the Lucks' report and the Schedule of Charges the Tribunal held:-

"It seems to us that the Lucks' report is misleading because it does not make it clear that they had kept observation on Mrs Beart and the shop with negative results for four days before, on two successive days, they saw Mrs Beart open the shop, and when, before any other members of staff came in, Mrs Luck effectively entrapped Mrs Beart into serving her. If the report of their observations had been in the context which is shown by their Schedule of Charges (page 664) then we think it would have presented a very different impression. As it was, the evidence showed that, for about 10 minutes on two successive days, Mrs Beart dealt with a customer (on one day before the shop's proper opening time) in the absence of any member of staff. The Lucks did not keep further observation on the shop on those days, or produce any further evidence that Mrs Beart was in any real sense working in the shop. Their Schedule of Charges shows that their observations were discontinued at 9.45 a.m."

(c) The Prison Service's initial disciplinary investigation.

14. Having received the Lucks' report the Governor of the Prison, Mr Podmore, instructed Mrs Davies, a member of his staff of Governor IV grade, to investigate further. She interviewed Mrs Beart at the latter's home on 23rd August 1998. The Tribunal held:-

"(45) Mrs Davies did not ask Mrs Beart any questions about the Luck's report, or in any way put to her the contents of the report."

The Tribunal, having commented, in the passage we cited in our paragraph 13 above, on the Service's failure to disclose the Lucks' Schedule of Charges continued:-

"76. So it seems to us that the first part of the investigation was compromised: that situation was reinforced by Mrs Davies's interview with Mrs Beart in which Mrs Davies entirely failed to put any really specific questions to Mrs Beart about what she did or did not do in the shop, and totally failed to obtain her comments on the Lucks' report, and her alleged oral submissions to Mrs Luck."

(d) The allegations raised against Mrs Beart and the appropriate sanctions.

15. The charges framed against Mrs Beart were as follows:

(i) That between the dates April 1998 and June 1998 you did undertake outside work contrary to the formal written instruction given you in January 1998 that any previously implied permission for you to do so had been withdrawn with immediate effect from that date.

(ii) That you undertook outside work whilst claiming sick pay from the Prison Service."

16. Mrs Beart was found guilty at the disciplinary stage on both counts. The first count derived its language from paragraph 19.16 of the Prison Service Staff Handbook but that was a provision that did not apply to Mrs Beart as it applied only to the "Unified Grades". Further, paragraph 19.17, couched in wider terms, related to outside occupation "which would require your attendance at any time during normal working-hours". Leaving aside whether Mrs Beart's attendance at the shop was "required", as she was off sick at the relevant time she had no normal working hours. Paragraph 19.18 forbade engagement in any activity "which might lead to your being less effective as a member of the Prison Service" but Mrs Beart was already off sick. The Service's code dealing with conduct and discipline provided that no one would be dismissed for a first breach of discipline except in the case of gross misconduct. So far as relevant the categories given of gross misconduct included fraud (but that was disavowed as against Mrs Beart by the Prison Service) and "insubordination leading directly to serious disorder or loss of control". The Tribunal held:-

"We think it is clear that the first charge relates in effect to insubordination, namely that Mrs Beart disregarded the instruction that Mr Neeves gave her in letter 465 that she should not continue to carry on her clothing businesses. It seems to us to be clear from the way in which Mr Neeves's instruction was phrased that he had in mind the instruction at paragraph 19.16 (page 77) which is set out above. That instruction refers to the Prison Service Unified Grades, and (it is not disputed) Mrs Beart was not a member of those Grades. In our view, the first charge was not properly laid, but, even if it was, we accept Mr Laddie's submission that, for Mrs Beart to continue to carry on her businesses was not insubordination leading directly to serious disorder or loss of control. If it was insubordination at all (and we repeat that we do not think that it was) it was insubordination which should have been regarded as no more than general misconduct."

17. As for the second count, the Tribunal held:-

"81. Whilst we accept that Mrs West found Mrs Beart guilty on the second charge, it seems to us that the evidence, once the Schedule of Charges (which Mrs West ignored) is taken into account, it does not show that Mrs Beart "undertook outside work". The evidence before Mrs West was that Mrs Beart had been seen for two periods of 10 minutes, and no more, on successive days, opening up a shop and, in the absence of other members of the staff, being entrapped by Mrs Luck into selling children's football strips. That evidence does not seem to us to support the proposition that Mrs Beart "undertook outside work". While we appreciate that Mrs West also relied on Mrs Beart's alleged oral admissions to Mrs Luck, it seems to us that if the report had been presented in context, Mrs West would have almost certainly have taken a different view of the weight she could attach to those alleged admissions: her evidence about this matter was one of the few points in her evidence which we found less than satisfactory, because it seemed to us that she was trying to defend, at that point, an indefensible conclusion."

(e) The conduct of the disciplinary proceedings.

18. We have already noted that Mrs Beart had sought and been refused a highly material document, the Lucks' Schedule of Charges, which nonetheless the person conducting the disciplinary hearing, Mrs West, had in front of her. Mrs Beart had been refused the document (not by Mrs West) on a ground which the Tribunal held to be untrue. The hearing was fixed for 9th November 1998 but Mrs Beart's GP certified her inability to attend. The Prison Service's Management Guideline on Conduct & Discipline provides at its paragraph 5.14:

"5.14 In general, however, when a member of staff has a sick certificate which indicates they are unlikely to be able to attend a disciplinary hearing, the hearing must be postponed. However, if after 6 weeks they are still unable to attend a hearing the following options must be offered to the member of staff; to attend an interview in person even if not fit for full duty;to submit a detailed written reply to the allegation or, if called as a witness, a written account of the relevant evidence; and/or to brief a work colleague or trade union representative to attend the hearing as their representative and on their behalf.

The member of staff must reply within one week. If none of the above were accepted by the individual, disciplinary proceedings would only take place if it seemed fair and reasonable that they should."

In breach of that, Mr Podmore, the Governor of Swaleside Prison, wrote to Mrs Beart on 16th November, well before the expiry of 6 weeks, fixing 15th December 1998 as the hearing and offering a different range of options (as the first he offered was not that she should attend "an interview" in person but "the hearing"). Mrs Beart did attend and raised some procedural points. Mrs West, as chairwoman, sat with two others. When that panel came to consider Mrs Beart's procedural points, Mrs Beart and her helper were sent out of the room but Mrs Davies, the "prosecutor", remained in the room. Mrs Beart felt she was being "ganged up" against and left. There was no conspiracy against her but she genuinely believed there was. The hearing continued in her absence. The Tribunal held:-

"(89) Although Mrs West gave a careful summing up of the case (pages 64-642) she did not consider either whether the first charge was properly laid at all, or (since she had not seen the significance of the Schedule of Charges in relation to the evidence of Mr and Mrs Luck) whether the evidence really supported the second charge."

On 11th February 1999 Mrs West wrote to Mrs Beart including the following:-

"I have decided that my findings of guilt on both charges laid against you should result in dismissal from the Prison Service, on each count."

The Tribunal held that it had been a serious breach of procedure at the disciplinary hearing for the "prosecutor" to have remained after Mrs Beart had been sent out whilst the panel decided how to react to the case as Mrs Beart had thus far raised it. The Tribunal concluded:-

"82. In all the circumstances, which include Mrs Beart's 18 years of exemplary service, it does not seem to us that dismissal came within the band of reasonable responses. We think that Mrs West allowed herself to present that response largely because she did not see that Mrs Beart was too ill to carry on with the disciplinary hearing, and that a factor in her (Mrs Beart's) discouragement from carrying on was the point that, in considering Mrs Beart's preliminary submissions (ill-founded as they were) Mrs West had retired with, among others, the management representative (Mrs Davies) who was presenting the case against Mrs Beart. That seems to us to have been a serious breach of procedure."

19. There were undoubtedly points that were urged against that conclusion, as the Tribunal itself repeatedly recognised. Mrs Beart had not challenged the Lucks' report; she had not said, at the disciplinary hearing, that she was unwell or not able to do her case justice. She had left the disciplinary hearing and, though granted the opportunity to mitigate, had failed to take it. Nor would we pretend that the Tribunal's conclusions were the only ones that could properly have been arrived at.
20. Nonetheless, we cannot say that any of the conclusions we have cited was totally unsupported by evidence or was in defiance of uncontested evidence or was otherwise in breach of any principle of law. None was an impermissible option or such as to occasion a gasp with words such as "My goodness, that can't be right". None was perverse, even if some of the descriptions such as "woefully" and "superficial" were stronger than we would have chosen. The Lucks' report failed to give the whole or a fair picture of the occasions upon which they had sought to observe Mrs Beart; it was unfair to withhold the Schedule of Charges from Mrs Beart (on an untrue ground) yet for the disciplinary hearing to have it (even if its significance was overlooked). It was a procedural shortcoming for Mrs Davies, interviewing Mrs Beart, not to put to her the very matters, the Lucks' report's conclusions, that were to be relied on by the Service. There were real procedural weaknesses in the framing of the charges and Mr Underwood accepted that Mrs Beart could not be expected to discern under which paragraphs she was being charged. The adjudging of the right severity for an appropriate sanction was on a wrong basis, the Prison Service having accepted that Mrs Beart's offence was not one of fraud. The adjourned disciplinary hearing was arranged in breach of the Service's own rules. In sum, we cannot find any perversity or other material error of law in the Tribunal's conclusion as to unfair dismissal.

DISABILITY DISCRIMINATION

21. Mrs Beart, as we have already noted, went off work, suffering from depression, in September 1997. On 6th May 1998 the medical adviser to the Prison Service, BMI Health Services, by its Dr. Susan Harvey M.B., B.S., M.R.C.G.P., Occupational Health Physician, reported upon Mrs Beart to the Prison Service at Swaleside. She said:-

"I am unable to comment at the moment on the likely duration of her illness. She is still currently unwell and undergoing treatment. I do not think she will recover fully until the difficulties referred to above have been addressed. She does not feel that she will ever be able to return to H.M. Prison Swaleside but would consider a suitable post at another prison and I think that suitable redeployment may be the only answer to this situation. It was suggested by your department that she take a career break but she does not wish to do this for financial reasons. I hope that the situation can be resolved satisfactorily and would be happy to advise again if necessary."

In the Doctor's view Mrs Beart was still suffering from a moderately severe depression for which she was undergoing treatment. On 18th June 1998 Mrs Beart's then Solicitors sent to the Governor at Swaleside a copy of a report on Mrs Beart from Dr S. Feeney, Consultant Psychiatrist, that spoke of her suffering from a depressive episode. He thought she would need medication for a further 6 months at least. He concluded:-

"The circumstances of the onset of the illness as they are described to me by Mrs Beart suggest that there is a relationship between the difficulties at work and the onset of her illness."

The Prison Service later accepted, as we have noted, that Mrs Beart was disabled within the meaning of the 1995 Act. Her case was that the employer was accordingly under a duty to take steps under section 6 (1) of the Act but that it failed to do so and that the Prison Service accordingly discriminated against her under section 5 (2), as no justification for that failure was made good under section 5 (2) (b). The appropriate step, argued Mrs Beart, was her relocation to another prison or elsewhere in the Service, the very thing that the Prison Service's own adviser, Dr. Harvey, had said "may be the only answer to this situation" (although Dr. Harvey had called it "redeployment"). Mrs Beart's situation was one of a conflict having developed at Swaleside in September 1997 between her and her immediate line manager there, Mrs Tetley, who was angry with and felt threatened by Mrs Beart. Mrs Tetley then misconstrued a request by Mrs Beart, then having child care difficulties, as meaning that Mrs Beart wished to resign from her full-time job. Mrs Tetley then promptly advertised it, saying, when approached, that the job had been advertised and that the advertisement could not be withdrawn (although in cross-examination she accepted it could have been). The effect, held the Tribunal:-

"(5) ...... was that Mrs Beart was deprived of a job which she had been doing for some 18 months in the Temporary rank of Executive Officer, and was about to be demoted to a part-time post as an Administrative Officer, which would have involved a very substantial reduction in pay.

(6) On the following day, Mrs Beart went sick, and never returned to work. ...... ."

Another person was appointed to the post which Mrs Beart had held as a Temporary Executive Officer.

22. The Tribunal accepted that relocation would have been an appropriate step. They held in their paragraph 70:-

"What would undoubtedly have been an adjustment would have been Mrs Beart's redeployment or relocation, as recommended by Dr Harvey in the light of her diagnosis that the cause of Mrs Beart's depressive illness was the situation which had arisen at Swaleside, and which was not likely to be resolved unless she was employed somewhere else. We agree with Mr Laddie's submission that it is quite unusual to have such a clear diagnosis of the cause of a depressive illness and such a clear recommendation for its treatment. It seems to us that there is a substantial possibility that, if that adjustment had been made, Mrs Beart would probably still have been employed by the Prison Service, and this case would not have been brought.

71. But we have to consider whether the failure to make that adjustment amounts to discrimination. We draw the inference that it does."

The Tribunal rejected another argument of Mrs Beart's, namely that her dismissal was on the ground of disability. Mrs Beart, they held, was dismissed because, rightly or wrongly (and, as they held, wrongly) the Service had taken the view that she was guilty of gross misconduct. The discrimination which Mrs Beart suffered lay in and only in that the Service:-

".... failed to make the adjustment by way of relocation or redeployment recommended by
Dr. Harvey in her medical report, but we do not find that they otherwise discriminated against her."

23. Mr Underwood raises many points against that conclusion. He reminds us first of the provisions of section 6 (1), (2), (3) and (4) of the 1995 Act as follows:-

"6. Duty of employer to make adjustments

(1) Where -
(a) any arrangements made by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer,
place 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 arrangements or feature having that effect.

(2) Subsection (1) (a) applies only in relation to -

(a) arrangements for determining to whom employment should be offered;
(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.

(3) The following are examples of steps which an employer may have to take in relation to a disabled person in order to comply with subsection (1) -

(a) .........
(b) .........
(c) .........
(d) .........
(e) assigning him to a different place of work;
(f) to (I) .........

(4) In determining whether it is reasonable for an employer to have to take a particular step in order to comply with subsection (1), regard shall be had, in particular, to -

(a) the extent to which taking the step would prevent the effect in question;
(b) the extent to which it is practicable for the employer to take the step;
(c) the financial and other costs which would be incurred by the employer in taking
the step and the extent to which taking it would disrupt any of his activities;
(d) the extent of the employer's financial and other resources;
(e) the availability to the employer of financial or other assistance with respect to taking the step.

This subsection is subject to any provision of regulations made under sub-section (8)."

24. Mr Underwood, picking up the word "reasonable" in section 6 (1), says that the Tribunal never directed themselves to the reasonableness of a re-location. But the Service's own medical adviser had said, as we have quoted, that it might be the only answer to the situation. Mr Underwood had argued below that many of the matters Mrs Beart had asserted to be reasonable adjustments could not properly be described as that but there is nothing in the Extended Reasons that indicates (leaving aside a point we shall come on to) that it was argued below that a relocation was not "reasonable" nor that grounds were provided as to why it should have been so regarded. Whilst the Tribunal did not in that express term hold that relocation was a "reasonable" step the passage we have cited from its paragraph 70 in our paragraph 22 above was plainly to that effect.
25. Next Mr Underwood argues that the Tribunal failed to consider whether the failure to relocate Mrs Beart was justified. However, section 5 (2) (b) throws the onus as to justification on the employer; if the employer fails to provide a grounding in fact for a plea of justification then the Tribunal can fairly take it that justification cannot be shown and hence need not be considered. There is here no suggestion that such a grounding was laid below, nor, save in one respect, did Mr Underwood identify to us what were the facts that should have been considered on that subject by the Tribunal but which failed to be.
26. The one respect in which justification was identified as arguable (and which also went to the reasonableness of relocation as a step under section 6 (1)) arose out of the fact that the failure to relocate was during the subsistence of disciplinary proceedings. However, as will later appear, the Prison Service (because, it says, of the absence of evidence from the Governor, Mr Podmore) failed in evidence to substantiate any policy or other grounds such that the subsistence of such proceedings of itself necessarily or in this case precluded relocation. As we shall indicate later, the Tribunal cannot be faulted on its handling of Mr Podmore's absence. Indeed, on the issue of whether Mr Podmore could have added anything material, as Mr Laddie points out, it is striking that although Mrs Beart asked Mr Podmore by letters of 29th October 1998 and 1st December 1998 why it was that Dr Harvey's recommendation of relocation was not being acted on, Mr Podmore not only did not answer that it was because of the subsistence of disciplinary proceedings, he did not answer at all.
27. Next, on stronger ground, Mr Underwood raises the way in which the Tribunal drew an inference in the passage from the Tribunal's paragraphs 70 and 71 which we cited in our paragraph 22 above. No inference was necessary. If, as the Tribunal held, there was an adjustment - here a relocation - which the employer was under a duty to make in respect of a disabled person but which was not made (and where employer could not show that the failure to make it was justified), that, without more, is discrimination within section 5 (2) irrespective of any need to examine why the failure occurred or what motive or intent, if any, lay behind the failure. The Prison Service is right to criticise the Tribunal's approach to inference (and in particular parts of its paragraph 71) but the criticism does not avail the Appellant.
28. Next Mr Underwood complains that the Tribunal's finding that there was a "substantial possibility" that if she had been relocated Mrs Beart would have returned to employment fell short of a due consideration of whether that relocation would have prevented the effect in question within section 6 (4) (a) supra.
29. Before the conflict with Mrs Tetley and the prospective demotion of Mrs Beart the latter had worked well enough continuously to receive good appraisals over several years. If she then suffered depression it was kept within bounds. After those events, however, she went sick and never returned to work. Mrs Beart was placed at a substantial disadvantage in that she felt that she would never be able to return to her erstwhile place of work, Swaleside, as the Service's own Occupational Health Physician reported to the Service. Section 6 (4) (a) does not require of a particular step that it should prevent the effect in question but that the employer, in considering whether he was under a duty to take the step, is entitled to have regard to the extent to which the step would prevent the effect in question. There will be many steps of the kinds described in section 6 (3) which, ahead of their being taken, could not be guaranteed to "work" in the sense of totally removing the disadvantage which the disabled person is encountering but that, of itself, is no reason to absolve the employer from the duty to take it or is such, without more, to deny the step the appellation "reasonable". The Tribunal's view that there was a substantial possibility that a relocation would have "worked" was, in effect, a finding that even if the Prison Service had considered the merits and demerits of a relocation (which seems not to have been proved), a case for not taking the step on the ground that it would or might not totally succeed had not been demonstrated and would not in any event have availed the Service. We see no perversity or other error of law in that.
30. Mr Underwood urges that it cannot be expected of an employer that he should offer or consider relocation of an employee who is facing serious disciplinary charges, certainly if dismissal is in issue. There may in several circumstances be force in that but an employer who, on that account, fails to comply with a section 6 duty runs a risk (especially where, as here, it transpires that the employer's handling of the disciplinary charges was unfair and the sanction imposed, dismissal, was disproportionate) that the failure to comply with the duty will be found to be devoid of a "substantial" reason and hence not to have been "justified" within section 5 (2) (b) and section 5 (4).
31. Then there is a complaint that the Prison Service was unable to call the Governor of the Swaleside Prison, Mr Podmore, because of his ill-health. The hearing, which began on 20th February 2001, had been fixed in July 2000. Only on 17th January 2001 did the Prison Service advise its own Solicitor, the Treasury Solicitor, of Mr Podmore's illness. On 18th January the Treasury Solicitor, in strikingly vague terms, wrote to the Tribunal seeking a postponement, without indicating how long a one would be needed. No witness statement had been taken from Mr Podmore. On 1st February the Treasury Solicitor sent a Doctor's Certificate covering a 4 week period. On 2nd February the Tribunal pointed out that the certificate did not say that Mr Podmore was unable to give evidence. Mr Podmore made a fresh appointment with his Doctor; a further certificate emerged, dated 12th February 200,1 saying that Mr Podmore's disorder was Reactive Depression, that he should refrain from work for 4 weeks and, added the Doctor, "I do not feel this man is fit to face a Tribunal hearing". On 14th February a Chairman, in a short and well-balanced decision, held that it was not in the interests of justice to delay the hearing. He noted that it might be months before Mr Podmore had recovered, that the prognosis was uncertain, that Mrs Beart resisted the adjournment and that she had submitted that Mr Podmore's stress would continue until the case was heard. No appeal was made.
32. At the Tribunal the Prison Service on the second day of the hearing renewed a request for adjournment. The Tribunal commented as follows:-

"5. We did not hear from two witnesses from whom we might have expected to hear. We did not hear from Mr John Podmore, who, at the material time was Governor of H.M. Prison Swaleside. The Respondents' solicitors had passed to the Tribunal a medical certificate certifying that Mr Podmore was unfit to attend the hearing. Nor did we hear the live evidence of Mrs Davies, who was also said to be ill, suffering from chronic fatigue syndrome. But the Respondents were prepared to proceed without those witnesses, and, while we can see that they might have given illuminating evidence, we are satisfied that, in the long run, we have received a clear picture of what happened."

33. Mr Podmore's absence and the consequential loss of his evidence is relied on only as to disability discrimination. As for Mr Podmore's rôle in that, Mr Underwood says that Mr Podmore might have had things to say. Whether he could or would have had things to say which would have helped the Prison Service is unknowable as, remarkably, no witness statement was taken from him in all the spell from the listing of the case down to its end. None such, at any rate, has been produced.
34. Mr Underwood then said that whether it could have been right to offer relocation to Mrs Beart whilst she was under disciplinary process was a subject on which Mr Podmore could have spoken but in answer to the Bench's question that surely someone senior to Mr Podmore could have spoken to that Mr Underwood answered "Possibly". Indeed, the Tribunal's decision itself relates how Mr Murtagh, Area Manager of H.M. Prison Services Kent, had visited Swaleside, had been briefed on the Beart facts and had reported that he was generally content that the matter was being correctly managed. No reason is given why Mr Murtagh could not speak to any policy or other difficulties either generally inherent in a relocation of a disabled person during subsisting disciplinary proceedings or in the particular Beart case. Further, although the Doctor's Certificate expired on 12th March 2001 and evidence and argument ran down to 26th February, with the judgment not being sent to the parties till 27th March, there was no application that Mr Podmore's evidence should be given late after all or that he should at least put in a witness statement, which might or might not have attracted dispute and which (if it did) could then be given such weight as would be appropriate for a statement not tested in cross-examination. The Doctor's Certificate had not suggested he could not even compose a witness statement. The Service's failure to show that, because of the subsistence of disciplinary charges, relocation of Mrs Beart could not be regarded as a reasonable step for it to have taken cannot be blamed on the Tribunal.
35. We see no error of law in the Tribunal's handling of Mr Podmore's absence.

CONCLUSION

36. The appeal is dismissed both as to unfair dismissal and disability discrimination.