Beart v HM Prison Service

1. LORD JUSTICE PETER GIBSON: The employer, HM Prison Service, appeals from the order of the Employment Appeal Tribunal ("the EAT") on 21st May 2002 dismissing the employer's appeal from the decision of an Employment Tribunal sitting at Ashford, Kent. By that decision sent to the parties on 27th March 2001 the Tribunal upheld the complaint of the employee, Jacqueline Beart, that she had been unfairly dismissed and unlawfully discriminated against on the grounds of her disability.

2. The case involved a lengthy hearing over seven days before the Tribunal, and the exceptionally full and painstaking Extended Reasons of the Tribunal run to 33 closely typed pages. I summarise the relevant facts found by the Tribunal.

3. Mrs Beart was born in March 1964. Since leaving school at the age of 16 she had been employed in various branches of the Civil Service. In April 1990 she was transferred to work as an Administrative Officer at HM Prison, Swaleside in the Isle of Sheppey. In 1996 she became a temporary Executive Officer. Below the more senior grade, staff at the prison were divided into unified grades, comprising prison officers, and non-unified grades, comprising Civil Service employees like Mrs Beart. She invariably earned good appraisals. In her appraisal for the year ended April 1997 she made clear to the employer that she was seeking a substantive full-time post as Executive Officer.

4. Her immediate line manager was Wendy Tetley. In August 1997 an incident occurred (regarding the release date of a prisoner) on which Mrs Beart went straight to John Podmore, a Governor of Swaleside, over the head of Mrs Tetley. Mrs Tetley resented this and there was an angry exchange of words between her and Mrs Beart. Mrs Tetley felt threatened by Mrs Beart. On 9th September 1997 Mrs Beart spoke to Mrs Tetley about options to work part-time. This was because Mrs Beart had problems over collecting her children from school, her husband (from whom she had separated) having indicated that he would no longer be able to collect the children. Mrs Tetley misconstrued that inquiry as meaning that Mrs Beart wished to resign from her full-time job as temporary Executive Officer. Mrs Tetley arranged for Mrs Beart to do a part-time job as an Administrative Officer, which would have involved afternoon work, and so would not have assisted her child care problem, as well as a substantial pay cut. Mrs Beart objected and sought to continue as temporary Executive Officer, but was told by Mrs Tetley that that would not be possible as the job had already been advertised and the advertisement could not be withdrawn. Mrs Tetley agreed in cross-examination that the advertisement could have been withdrawn.

5. On 11th September 1997 Mrs Beart went sick. She never returned to work. It is common ground that she suffered from depression and that she had a disability within the meaning of the Disability Discrimination Act 1995 ("the Act").

6. Only after eight months, in May 1998, did the employer obtain a medical report on her. That step was provided for after the employee was absent for one month by the provisions of the Prison Service Order 8401 dealing with the management of long-term sickness absence. In her report to the employer Dr Susan Harvey, an occupational health consultant, stated:

"In answer to your specific questions I am unable to comment at the moment on the likely duration of her illness. She is still currently unwell and undergoing treatment. I do not think she will recover fully until the difficulties referred to above have been addressed."

I interpose the comment that the difficulties to which she referred were the incident with Mrs Tetley when Mrs Beart had been told that she had to take a part-time afternoon job as an Administrative Officer and also her feeling that she had been badly treated, with very little contact from the employer's welfare office or personnel department, and that she had received next to nothing in writing concerning her position. The report continues:

"She does not feel that she will ever be able to return to HM Prison Swaleside but would consider a suitable post at another prison and I think that suitable redeployment may be the only answer to this situation."

The doctor offered to advise again, if necessary. That recommendation for relocation was a possibility provided for in the Prison Service Order, but it was never acted on. The report was only sent to Mrs Beart on 12th October 1998. When Mrs Beart went sick she received pay not at the rate at which she had been paid as a temporary Executive Officer but at the lower Administrative Officer grade; and after six months she only received half pay, which was stopped entirely from 1st July 1998 in the circumstances which I must now relate.

7. Mrs Beart had for some time prior to August 1997 run a business selling clothes at parties in private houses. She decided to turn that business into the running of a shop in the High Street in Sheerness and took a monthly lease of the shop. She initially employed a manageress to do all the work in the shop. In April 1998 the sister of the manageress took over the running of the shop with two part-time assistants. During the winter of 1997/1998 Mrs Beart did not work in the shop, though she prepared shift patterns for the staff, wrote cheques for stock and copied weekly accounts into a ledger.

8. The fact that Mrs Beart owned the shop was well-known to the staff and management of Swaleside, who had also known that she had been operating a clothes party business.

9. Mrs Beart used occasionally to visit the shop for company while she was ill, but the Tribunal said that they were satisfied that she did no work on such visits.

10. On 8th January 1998 Mr Neeves, the then head of Human Resources at Swaleside, wrote to Mrs Beart, saying:

"I remember during your conversations before you reported sick that you were running a clothes business part-time and that you were looking to work part-time at the Prison and open a shop and am concerned about the effect continuing this work may be having on your health.

As you are aware from the Staff Handbook, permission to carry on outside occupations will only be granted while it is unlikely to interfere with your official duties or impair your efficiency as a member of the Prison Service. When I consider applications on behalf of the Governor, sick leave is one of the factors taken into consideration. I have to inform you that any implied permission to do this work is withdrawn with immediate effect."

11. On 3rd April 1998 Mrs Beart was seen in the shop by Elizabeth Halton, who had succeeded Mrs Beart as temporary Executive Officer, and three other Swaleside members of staff. Ms Halton reported to Mrs Tetley Mrs Beart's presence in the shop and that Mrs Beart "sat behind a cash till", but she did not say that she was doing any specific work. The Tribunal found that Mrs Beart, while in the shop, needed to sit down and the available chair happened to be behind the cash till.

12. Mrs Tetley formed the view that she should investigate whether Mrs Beart was working in the shop at a time when she was claiming and receiving sick pay. In April 1998 she contacted and gave instructions to a private investigator, Mr Luck, to make five visits to the shop and to make a purchase from Mrs Beart, if she was seen to be working. Mr and Mrs Luck ("the Lucks") reported on 9th June 1998. As appears from their Schedule of Charges, they kept observation on four days without observing Mrs Beart at all, but had seen her at the shop on 8th and 9th June. On 8th June Mrs Beart unlocked the shop and shortly after 9.00 a.m., before any other staff had come in, Mrs Luck went into the shop and bought a child's football strip, for which Mrs Beart gave her a receipt. Mrs Luck reported that Mrs Beart told her that she was running two businesses, the shop and the clothes party business, that the strip came from party stock and that she spent about two hours a day doing the books. The Lucks reported that on 9th June they saw Mrs Beart unlock the shop, following which Mr Luck went in, before the shop's opening hour, and bought from her another football strip for a child. Mr Luck reported that she told him that besides running the shop she had held a full-time job until September 1997. It had all become too much for her. She had become depressed but was now feeling better since giving up full-time employment. She always got up at 6.00 a.m. and worked all day and in the evenings until 10.00 p.m. From the Schedule of Charges the observations on 8th and 9th June concluded at 9.45 a.m. The matters reported occupied about ten minutes on each of those days.

13. After receipt of the investigators' report on 10th June 1998 Mr Podmore wrote to Mrs Beart expressing the belief that she was working in her clothes shop while off sick and he asked for an explanation by 19th June. She did not comply, the Tribunal found, because she was too ill and unable to deal with correspondence.

14. On 11th June Mr Podmore instructed Margaret Davies, the Governor IV at Swaleside to inquire into the allegation that Mrs Beart undertook an outside occupation while on long-term sick leave knowing that any previous permission had been revoked on 8th January 1998. On 17th June Mrs Beart's solicitors wrote to Mr Podmore asserting that, although Mrs Beart had an interest in the clothes shop, she was not employed in that business. They asked for particulars of the evidence that Mrs Beart was working. But that, and a further letter asking for evidence of the allegations against her, went unanswered.

15. Mrs Davies interviewed Mrs Beart on 23rd August 1998 but did not ask any questions about the report of the Lucks, nor did she put to Mrs Beart the contents of that report.

16. On 20th August Tom Murtagh, the area manager of the employer, visited Swaleside, discussed Mrs Beart's case with Podmore, Mrs Tetley and one other and wrote a report in which he said that Mrs Beart had been observed working in a shop; he called it "an abuse of sick leave". That report became generally known in Swaleside and was more widely circulated than it should have been. It became the subject of a grievance brought on 28th October 1998 by Mrs Beart which was upheld.

17. Mrs Davies reported on her investigation, as a result of which it was recommended that two disciplinary charges be brought against Mrs Beart. Mr Podmore accepted the recommendation that charges be brought against her. As amended by Mr Podmore, those charges were:

"(i) That between the dates April 1998 and June 1998 you did undertake outside work contrary to the formal written instructions 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."

18. On 9th October 1998 Mrs Beart wrote to Mr Podmore, invoking her right to written evidence under the employer's disciplinary code and asking, among other things, for:

"(4) the complete report given to yourselves by the private investigators including costs ...

(5) the terms of reference given to the private investigators and their schedule."

19. On 12th October 1998 Mr Podmore replied that it was "a commercial in confidence issue", and for that reason he refused the request. The Tribunal commented that they did not regard that statement as true and that, if the report and the Schedule of Charges contained confidential information, that information could have been deleted from what was supplied to Mrs Beart.

20. On 29th October and again on 1st December 1998 Mrs Beart wrote to Mr Podmore to inquire why Dr Harvey's recommendation for relocation was never dealt with. But Mr Podmore did not reply. The disciplinary hearing was fixed for 9th November 1998, but Mrs Beart could not attend because, as certified by her doctor, she was unwell. On 16th November 1998 Mr Podmore wrote to her offering various options about the hearing. That was premature and in breach of paragraph 5.14 of the code dealing with conduct and discipline in the Prison Service, requiring six weeks to elapse after a sick certificate is provided before such options were proffered. Mr Podmore fixed the hearing for 15th December 1998, that is before the six-week period had elapsed.

21. The disciplinary hearing took place on 15th December. The hearing was conducted by Sian West, the Deputy Governor of Maidstone Prison. Mrs Beart took some procedural points on two occasions in the course of the hearing. Mrs Beart and a work colleague, who accompanied her on each occasion, were sent out of the room while the points were considered. Everyone else, including Mrs Davies presenting the employer's case, remained in the room. The procedural points were properly dismissed. Mrs Beart then left, saying that she would institute proceedings before a tribunal. The disciplinary hearing continued in her absence. Mrs West heard evidence from Mrs Davies, Mr Luck, Mrs Luck, and Ms Halton. Mrs West had before her the Luck's Schedule of Charges and the video and photographs which the Lucks had taken of Mrs Beart at the shop. No questions were asked by Mrs West of the Lucks' evidence. Mrs West summed up carefully, but did not consider whether the first charge was properly laid or whether the evidence really supported the second charge. Mrs West was to admit in cross-examination at the Tribunal hearing that she did not appreciate the significance of the Schedule of Charges. Mrs West found both charges proved. She wrote to Mrs Beart to notify her of that finding and invited her to make submissions in mitigation. But although Mrs Beart's solicitors replied that she would make such submissions, Mrs Beart did not do so.

22. On 28th January 1999 Mrs Beart wrote to Mr Podmore, saying that she had decided that she could no longer endure the harassment and victimisation to which Swaleside had subjected her, and that she had no option but to tender her resignation. Mr O'Connell, the head of Human Resource Development at Swaleside, replied on 8th February 1999 that he accepted her resignation but pointed out that she was required to give one month's notice and would treat her letter as the first day of such notice, with her resignation effective from 28th February 1999.

23. On 11th February 1999 Mrs West wrote to Mrs Beart that she had decided that the findings of guilt on both charges should result in dismissal on each count.

24. On 10th May 1999 Mrs Beart lodged her originating application with the Tribunal.

25. Before the Tribunal, as before the EAT and this court, Mrs Beart was represented by Mr Laddie and the employer by Mr Underwood QC. The Tribunal dealt first with the disability discrimination claim. They referred to Dr Harvey's report and in paragraph 70 of their Extended Reasons agreed with the submission by Mr Laddie that it was quite unusual to have such a clear diagnosis of the cause of depressive illness and such a clear recommendation for its treatment. They said that there was a substantial possibility that if that adjustment -- the redeployment or relocation of Mrs Beart -- had been made, Mrs Beart would still have been employed by the employer.

26. Then in paragraph 71 they went on to say:

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

They summarised their conclusion in paragraph 73 in this way:

"So our unanimous finding on disability discrimination is that the Respondents did unlawfully discriminate against Mrs Beart on the grounds of her disability, in that they 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."

27. It is common ground that the Tribunal misdirected themselves in going on to consider whether the failure to make an adjustment amounted to discrimination. It was unnecessary to consider that matter. It was sufficient for discrimination in contravention of the Act that there had been a failure to make the adjustment. The Tribunal in paragraph 71 strongly criticised what they called the almost wilful institutional ignorance which the employer was displaying towards the Act, saying that a large institutional employer could not be heard to say that it did not know of its duties under a major Act of Parliament.

28. The Tribunal then considered whether Mrs Beart was directly dismissed or resigned in circumstances which amounted to constructive dismissal, and in either case whether the dismissal was unfair. They found that the employer was correct to say that Mrs Beart was directly dismissed and that the question of constructive dismissal did not arise. They also held that the dismissal was unfair. They said that the disciplinary process fell foul of two of the three guidelines in British Home Stores Ltd v Burchell [1978] IRLR 379. They require an employer dismissing an employee for misconduct to establish that (1) the employer believed in the guilt of the employee, (2) that he did so on reasonable grounds, and (3) that he had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. They accepted that Mrs West genuinely believed in Mrs Beart's guilt, but they found that that belief was not reasonable. They described the investigation as woefully inadequate. They said, first, that the report of the Lucks was misleading because it did not make clear that for four days they had kept observation on Mrs Beart and the shop with negative results before on two days seeing Mrs Beart open the shop and that, before any members of the staff came in, Mrs Beart was entrapped into serving the Lucks. Had the report of their observations been in the context shown by the Schedule of Charges it would have presented a very different impression because of the short time Mrs Beart dealt with the customer. Second, they described Mrs Davies' investigation as superficial and inadequate. They said of her interview of Mrs Beart that Mrs Davies had failed to put specific questions about what Mrs Beart had done in the shop and failed to obtain her comments on the Lucks' report, that Mrs Davies had not obtained statements from those who accompanied Ms Halton on her visit to the shop in April 1998 and that Mrs Davies did not consider the medical evidence. Third, they criticised the way the case was prepared for hearing. They thought it regrettable that no proper period for recovery after Mrs Beart's certified illness at the beginning of November 1998 was allowed, contrary to the employer's procedures. The most serious matter, they said, was the refusal of Mr Podmore to disclose the Lucks' Schedule of Charges. That, they said, was a serious omission and a failure to behave reasonably. They criticised Mrs West for regarding the Schedule of Charges as irrelevant.

29. They finally considered whether dismissal was within the range of reasonable responses by the employer. They regarded the first charge as not properly laid. Mr Neeves had given the instruction on 8th January 1998 with paragraph 19.16 of the Staff Handbook in mind. That provided:

"Staff in the Prison Service unified grades may not take any other employment without permission. You will be granted permission where the employment or office is not inconsistent with your official position and is not likely to interfere with your official duties or impair your efficiency as a member of the Prison Service."

30. Mrs Beart was not in the unified grade. They said that, if the first charge was properly laid, it was not insubordination leading directly to serious disorder or loss of control such as would amount to gross misconduct within the employer's disciplinary code and, if it was insubordination, it should have been regarded as no more than general misconduct. On the second charge they said that the evidence, once the Schedule of Charges was taken into account, did not show that Mrs Beart undertook outside work. If the Lucks' report had been presented in context, Mrs West would almost certainly have taken a different view of the weight she could attach to the alleged admissions by Mrs Beart to the Lucks. They said that in all the circumstances, which included Mrs Beart's 18 years of exemplary service, the dismissal did not come within the band of reasonable responses. They said that Mrs West did not see that Mrs Beart was too ill to carry on with the disciplinary hearing and that a factor in Mrs Beart's discouragement from carrying on at that hearing was that Mrs West, when considering Mrs Beart's procedural objections, had retired with Mrs Davies. That they described as a serious breach of procedure.

31. On the employer's appeal to the EAT the President (Mr Justice Lindsay), giving the judgment of the EAT, considered first the employer's attack on the Tribunal's conclusion relating to unfair dismissal. He said that none of the conclusions reached by the Tribunal on this point was totally unsupported by evidence or in defiance of uncontested evidence or otherwise in breach of any principle of law or was perverse. He noted that there were real procedural weaknesses in the framing of the charges and that, as had been conceded by the employer, Mrs Beart could not be expected to discover under which paragraph she was being charged. They said that the adjudging of the right severity for an appropriate sanction was on a wrong basis, the employer having accepted that Mrs Beart's offence was not one of fraud, and noted that the disciplinary hearing was arranged in breach of the employer's own rules.

32. The EAT then turned to the question of disability discrimination. The judge went through a number of points raised by Mr Underwood, including an attack on the treatment by the Tribunal of Mr Podmore, on the basis of whose illness applications for an adjournment had been made, unsuccessfully, shortly before and also during the hearing. The judge pointed out the inadequacy of the medical evidence as to when Mr Podmore was expected to recover and drew attention to the fact that no witness statements from Mr Podmore had ever been produced. The judge concluded that no error had been made in the Tribunal's handling of Mr Podmore's evidence. The EAT therefore rejected the appeal against the Tribunal's conclusion on disability discrimination.

33. On this appeal the employer again challenges the conclusions of the Tribunal in relation both to the disability discrimination claim and the unfair dismissal claim. In his skeleton, Mr Underwood concentrated his attack on the EAT's judgment. But as has been repeatedly pointed out in this court, as this is a second-tier appeal, this court is more interested in the correctness of the Tribunal's decision than with the correctness of the reasoning of the EAT.

34. In his oral submissions Mr Underwood dealt first with the ground of appeal relating to disability discrimination. He drew our attention to the relevant provisions of the Act to be found in Part II, dealing with discrimination in the employment field. Section 5(2) reads as follows:

"For the purpose of this Part, an employer also discriminates against a disabled person if-

(a) he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and

(b) he cannot show that his failure to comply with that duty is justified."

Section 5(4) provides:

"For the purposes of subsection (2), failure to comply with a section 6 duty is justified if, but only if, the reason for the failure is both material to the circumstances of the particular case and substantial."

Section 6 provides:

"(1) Where-

(a) any arrangements made by or on behalf of an 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 ... 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)-

...

(c) transferring him to fill an existing vacancy.

...

(e) assigning him to a different place of work...

(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."

35. The first ground of appeal is that the EAT failed to apply its own decision in Morse v Wiltshire County Council [1998] ICR 1023 and upheld a decision by the Tribunal which was manifestly confused and wrong in its approach to the law and the facts.

36. In Morse Bell J, giving the judgment of the EAT, said at page 1033:

"In our judgment, section 5(2) and (4) and section 6(1)(2)(3) and (4) of the Act require the industrial tribunal to go through a number of sequential steps when dealing with an allegation of section 5(2) discrimination. First, the tribunal must decide whether the provisions of section 6(1) and (2) impose a section 6(1) duty on the employer in the circumstances of the particular case. If such a duty is imposed, the tribunal must next decide whether the employer has taken such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the section 6(1)(a) arrangements or section 6(1)(b) feature having the effect of placing the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled.

This in turn involves the tribunal inquiring whether the employer could reasonably have taken any steps including any of the steps set out in paragraphs (a) to (l) of section 6(3). The purpose of section 6(3) is to focus the mind of the employer on possible steps which it might take in compliance with its section 6(1) duty, and to focus the mind of the tribunal when considering whether an employer has failed to comply with a section 6 duty. At the same time the tribunal must have regard to the factors set out in section 6(4) paragraphs (a) to (e).

If, but only if, the tribunal (having followed these steps) finds that the employer has failed to comply with a section 6 duty in respect of the disabled applicant, does the tribunal finally have to decide whether the employer has shown that its failure to comply with its section 6 duty is justified, which means deciding whether it has shown that the reason for the failure to comply is both material to the circumstances of the particular case and substantial: see section 5(2) and (4)

In taking these steps, the tribunal must, in our view, apply what Mr. Ciumei called an objective test, asking for instance whether the employer has taken such steps as were reasonable, whether any of the steps in section 6(3) were reasonably available in the light of the actual situation so far as the factors in section 6(4) were concerned; and asking whether the employer's failure to comply with its section 6 duty was in fact objectively justified and whether the reason for failure to comply was in fact material to the circumstances of the particular case and in fact substantial.

No doubt in carrying out these exercises the tribunal will pay considerable attention to what factors the employer has considered or failed to consider, but it must scrutinise the explanation for selection for redundancy, for instance, put forward by the employer, and it must reach its own decision on what, if any, steps were reasonable and what was objectively justified, and material and substantial."

37. Mr Underwood rightly accepted that it is not an error of law for a tribunal to have failed to follow sequentially the series of steps indicated by Bell J, provided that it is apparent from the Tribunal's decision that they had properly applied themselves to considering whether the requirements of the statute were satisfied. Morse was not even cited to the Tribunal. But Mr Underwood submitted that the Tribunal never directed themselves to the question of reasonableness and the various matters in section 6(4) going to reasonableness.

38. Mr Underwood further argued that, had the Tribunal considered reasonableness, they would have found that relocation was not a reasonable step. On this he relied on the fact that Dr Harvey had reported that Mrs Beart's illness was continuing and the fact that Dr Harvey offered no prognosis, so that there was no possibility of Mrs Beart being relocated immediately. Mr Underwood pointed to the less than unequivocal statement by Dr Harvey that redeployment "may be the only answer" to the situation. Further, Mr Underwood asserted that the relocation could properly have been considered not to be reasonable in all the circumstances because of the fact that Dr Harvey's report was received after instructions had already been given to a private investigator. Mr Underwood's submission was that this showed that the employer thought so badly of Mrs Beart that it justified not acting on the medical advice. He accused the Tribunal of ignoring the facts.

39. As I have noted, it is not disputed that the Tribunal were wrong when they said that they had to consider whether the failure to make an adjustment amounted to discrimination. Once they found that there was a duty under section 6(1) to relocate Mrs Beart and the employer had failed to make that reasonable adjustment and the failure was substantial and not justified, that amounted to discrimination under section 5(2), without more. But that error of the Tribunal created only an unnecessary extra hurdle for Mrs Beart to have to overcome.

40. As Mr Laddie said, if paragraph 71 of the Tribunal's decision is left out of account, one is still left with the conclusion that there was an unjustified breach of the duty to make a reasonable adjustment. Mr Laddie told us that not only did the employer not call any evidence in support of the proposition that redeployment was not reasonable, it did not specifically address the issue of reasonableness so far as it related to redeployment. The Tribunal commented that Mr Laddie had placed far greater emphasis than Mr Underwood on the claim for disability discrimination.

41. The summary by the Tribunal of Mr Underwood's arguments in paragraph 52 of the decision makes no reference to the points now argued. Mr Laddie submitted that while the Tribunal in paragraph 70 did not use the word "reasonable", they had already considered the statutory test and found it satisfied. I agree with Mr Laddie. To my mind it is clear that the employer was under a section 6(1) duty. The employer had made arrangements for the employment of Mrs Beart at Swaleside, which included the terms on which employment was afforded to her. Dr Harvey related Mrs Beart's depression to what had occurred at work, including her conflict with Mrs Tetley and what Mrs Tetley had done in response to the inquiry about part-time work. Dr Feeney, a consultant psychiatrist whom Mrs Beart had consulted, also supported the fact that there was a relationship between the difficulties she encountered at work and the onset of Mrs Beart's illness. Mrs Beart could not continue to work at Swaleside, as Dr Harvey recognised in recommending a relocation. She was therefore placed at a substantial disadvantage in comparison with persons not disabled.

42. The test of reasonableness is directed to the steps to be taken to prevent the employment at Swaleside having the detrimental effect on Mrs Beart. A step that in the absence of contrary evidence could be taken was assigning her to a different place of work, and, indeed, the Prison Service Order, as I have noted, contemplated that very possibility. The Tribunal's conclusion that if she had been relocated there was a substantial possibility that she would still be in employment is plainly directed to the extent to which taking the step would prevent the effect in question: see section 6(4)(a) as part of the test of reasonableness. There was no evidence to the contrary, nor was there evidence on any of the other matters referred to in section 6(4), all of which would have been peculiarly within the knowledge of the employer and on which, if it thought reasonableness was not satisfied, it might have led evidence. It did not.

43. I conclude, in agreement with the EAT, that looking at paragraphs 70 to 74 of the Extended Reasons, the Tribunal did consider reasonableness and found the step of relocation to be a reasonable one. Further, I cannot accept Mr Underwood's submission that the step of relocation was a step which, looked at properly, should have been found to be not a reasonable one. The Tribunal had well in mind the terms of Dr Harvey's report to which they had referred. It is clear that relocation was the recommendation made by Dr Harvey to answer the situation which had caused Mrs Beart's depression. No doctor could be completely certain that the relocation would cure the depression. Dr Harvey plainly thought that it could. That (and Dr Feeney's evidence) was the only medical evidence put before the Tribunal, the employer not taking advantage of Dr Harvey's offer to advise again.

44. The suggestion by Mr Underwood that it was reasonable not to act on Dr Harvey's recommendation because of the already formed adverse view about Mrs Beart seems to me astonishing. At the stage that Dr Harvey's report was received the investigation had not really begun, Mrs Tetley only having instructed the Lucks. The Tribunal expressly noted that Dr Harvey's report was received the day after those instructions were given. The Tribunal cannot therefore fairly be accused of ignoring that fact. The truth may well be, as Mr Underwood's submission appears to suggest, that the employer had pre-judged the investigation adversely to Mrs Beart. But in fact there is no evidence as to why it was that the employer did not act on the medical advice. In any event, Mrs Beart's disability and the question of her business activities are quite discrete matters. There is no apparent reason why the employer could not have proceeded to take steps to relocate Mrs Beart, as recommended, once she was fit to be relocated, whilst also pursuing the disciplinary proceedings. None of the points taken by Mr Underwood seems to me to get anywhere near establishing that the Tribunal should have found the relocation was not a step that it was reasonable in all the circumstances for the employer to take.

45. Mr Underwood next argued that the Tribunal erred in not considering justification and that, had it done so, it would have found the failure to take a reasonable step to be justified, given that disciplinary proceedings subsisted at the relevant time. Mr Underwood in his skeleton said that "it was obvious that the failure to redeploy may have been due to Mr Podmore's belief that Mrs Beart should be dismissed". It is to be noted that he does not say that it was due to Mr Podmore's belief, but he submits that, even if the employer has not given direct evidence of a reason justifying a failure to make a reasonable adjustment, it is open to the Tribunal to find justification from the circumstances.

46. Mr Laddie pointed out that by reason of section 5(4) a failure to comply with a section 6 duty is justified only if the reason for the failure is material to the circumstances of the case and substantial. He suggested that that required the employer to provide evidence of the reason for the failure, and that only if the employer does so does the question of materiality or substantiality arise.

47. The difficulty in this case is that while the onus was on the employer to show justification, there was no evidence from the employer as to the reason for the failure to relocate. Mr Podmore was asked by Mrs Beart in two letters in October and December 1998 why Dr Harvey's recommendation had not been implemented. Yet he chose not to reply. He provided no evidence at all for the Tribunal. No other person in the service of the employer gave evidence on this point, although it seems probable that others like Mr Murtagh could have given such evidence. We are told that Mrs West, though asked in cross-examination why Mrs Beart had not been redeployed, said that she did not know. The absence of evidence on this point is the more remarkable given that paragraph 30 of the Prison Service Order dealing with management of long-term sickness, after referring to possible adjustments such as relocation, stated that the provisions of the Act must be borne in mind if the options were to be rejected. Further, Mrs Beart in her IT1 had laid heavy emphasis on the employer's failure to implement Dr Harvey's recommendation.

48. I am inclined to accept Mr Underwood's submission that, given that the justification must be viewed objectively by the Tribunal, it is open to the Tribunal to find justification, even if the employer has not given direct evidence on the reason for the failure to comply with the duty under section 6. True it is, as Mr Laddie had pointed out, that the court must find the reason to be material and substantial if it is to consider that the failure is justified; but that does not preclude the possibility that the Tribunal might see in all the circumstances that objectively such justification can be found. As was pointed out by Keene J giving the judgment of the EAT in British Gas Services Ltd v McCaull [2001] IRLR 60 at paragraph 45, it will be very difficult for an employer to justify the failure to take reasonable steps if he has not considered what steps should be taken. However, I would not rule out the possibility that in what would no doubt be an exceptional case that justification might be established; but the fact that the employer has not provided evidence of a reason justifying its failure to comply with a section 6 duty is likely to be highly significant. That is the more so in a case such as the present where the employer was twice asked at the time, but refused to answer, why the medical report was not implemented and led no evidence on it at the hearing. In my judgment the Tribunal were fully entitled to take the view that justification was not an issue in this case and did not detract from the conclusion that there had been unlawful discrimination on the ground of Mrs Beart's disability through the failure to make the adjustment by way of relocation recommended by Dr Harvey. I therefore conclude that the attack on the Tribunal's conclusion under this head fails.

49. I turn next to unfair dismissal, which I can deal with more shortly, as Mr Underwood dealt with this point quite briefly. Mr Underwood submitted that, in the light of (1) Mrs West's accepted genuine belief in the gross misconduct of Mrs Beart, (2) Mr Neeves' direction to Mrs Beart to cease her outside work (although that relied on, as Mr Underwood accepted, an inapplicable provision of the disciplinary code) and (3) the Lucks' report (including the reported statements made by Mrs Beart to the Lucks, their observations and the absence of any denial by Mrs Beart of the contents of the report), the investigation carried out by the employer was reasonable and the employer had reasonable grounds to sustain its belief in Mrs Beart's misconduct such as to justify dismissal. Mr Underwood submitted that accordingly the Tribunal's decision was perverse.

50. The difficulty with these submissions is that they involve a challenge to facts found by the Tribunal which had seen and heard the witnesses. If there had been no evidence at all to support the conclusions reached, then the Tribunal's findings would be vulnerable. But that is not this case. The Tribunal did have some evidence to support their findings, and while I acknowledge that it may be that a differently constituted Tribunal could properly have reached a different conclusion, that is not sufficient to establish the error of law needed to interfere with the Tribunal's conclusion.

51. Further, as Mr Laddie points out, this case is unusual in that four serious defects, each comprising several improprieties, were found by the Tribunal:

(1) an inadequate investigation;

(2) an unfair disciplinary hearing;

(3) Mrs West having no reasonable belief in Mrs Beart's misconduct; and

(4) that the dismissal was not within the range of reasonable responses.

Any of those defects by itself might have founded a conclusion of unfair dismissal.

52. I conclude, in agreement with the EAT, that on this point the Tribunal's decision cannot properly be categorised as perverse.

53. Accordingly I would dismiss this appeal.

54. LORD JUSTICE MAY: I agree that this appeal should be dismissed for the reasons which my Lord has given.

55. LORD JUSTICE SCOTT BAKER: I also agree.

Order: Appeal dismissed. The appellant to pay the respondent's costs to be assessed if not agreed.