The Background

Mrs Beart was born in March 1964, and had, since leaving school in 1980, been employed in the Civil Service, first as an Administrative Assistant in the Foreign and Commonwealth Office and the with H M Customs and Excise in Sheerness. In 1985 she was promoted to Administrative Officer. In April 1990 she transferred to work as an Administrative Officer at HM Prison Swaleside, which is situated at Eastchurch, in the Isle of Sheppey. During 1996, after she had held several posts in the Prison, she obtained a temporary promotion to Executive Officer in the Discipline Office of the Prison, with particular responsibilities for calculating the length of sentences that the prisoners had to serve, and their release dates. Her appraisals were invariably good, and there were no complaints about her work. Her appraisal for the year ending April 1997 was signed by her Line Manager, Mrs Tetley, on 15th June 1997, and it is fair to say that it is an enthusiastic appraisal. Mrs Beart's comments on the appraisal are dated 15 July 1997 and are important, in that her remarks conclude "and (I) will attempt to gain a substantive post when a suitable one becomes available" - it will be remembered that her rank was that of Temporary Executive Officer only, and, although she had held that rank for more than 12 months, she had not yet been appointed to a substantive Executive Officer post. The Prison Governor, Mr Podmore, whose comments are dated 21 August 1997, concurred with Mrs Tetley's appraisal.

It may be helpful to describe the administrative staffing structure of HM Prison Swaleside. (From now on, these establishments will be referred to purely by their names--e.g. Swaleside, Maidstone, Cookham Wood, etc.) Mr John Podmore was the Governing Governor. Below him, there were a number of Governor Grades, including Mrs Margaret  Davies, and Mr Colin Neeves. Mrs Wendy Tetley, the Head of Management Services from November 1994, was not, as we understand it, a Governor Grade. Below the Governor and Senior Management Grades, the staff of the Prison divided into the Prison Officers (of various ranks) and the Civil Service Administrators, of whom Mrs Beart was one: so was Miss Popple and Ms Taylor: so had previously been Mrs Castagnini. But Mrs Beart's partner, Mr Dundon is, and at all material times has been, a Prison Officer. The distinction between the groups is helpfully set out at paragraph 1.12 of the Staff Handbook. That provides:-

"Where this Handbook refers to 'Prison Service Unified Grades' this means Prison Officers, Senior Officers, Principal Officers and Governor Grades 1--5. The term 'Prison Service Non-Unified Grades' covers all other non-industrial staff, including Prison Auxiliaries, Night Patrols and Store Grades, Specialist Grades and Departmental Grades. ' Prison Service Unified Grades and Related Grades' means Unified Grades plus Prison Auxiliaries, Night Patrols and Stores Grades."

We think it clear that Mrs Beart and the other ladies who were her witnesses are either Departmental Grades, though Ms Taylor may, in 1997/98, may have been a Stores Grade Officer. The importance of the distinction between Unified and Non-Unified Grades will be seen as the case develops.

Based at Swaleside, there is a unit known as 'The Chaucer Unit', which deals with internal investigations in major cases arising in the Prison Service Establishments in Kent, Surrey and Sussex. As we understood the evidence, Mr Podmore as Governor of Swaleside, was concerned with this unit to some extent, but its Operative Director was Mr Ron Gooday, a member of the Governor Grades, although we were not told his particular Grade. He is assisted by a number of Officers, who have come to be skilled in internal investigations. The Unit's involvement in this case is tangential, but it was referred to in the course of this case, and we merely observe that it's operations have attracted outside comments, some of which is admiring, and some of which is highly critical.

This case is essentially concerned with the period between September 1997 and January 1999. In September 1997, Mrs Beart, in circumstances which we will shall examine, went of work, suffering with depression, and never returned to work. During 1998, she was the object of an investigation into whether she was carrying on outside activities at a time when she was claiming sick pay. She was observed by two Private Investigators, Mr and Mrs Luck. They had been commissioned by Mrs Tetley to carry out observations of Mrs Beart's activities. As was generally known in Swaleside, Mrs Beart owned a shop, and the object of the investigation was to see whether she was working in the shop, after a number of her work colleagues, principally Ms Elizabeth Halton, observed her in the shop at a time when they visited it. Mrs Tetley appears to have discussed the situation with the Chaucer Unit and with Mr Podmore, who commissioned Mrs Davies to make a formal investigation. That investigation led to the institution of disciplinary proceedings against Mrs Beart. Mrs West, then Deputy Governor of Maidstone Prison, was asked to Chair the disciplinary hearing, and it was her decision that Mrs Beart should be dismissed on the grounds of gross misconduct, which was notified to Mrs Beart on 22 December 1998, and the time when her dismissal was notified to her, which was on 11 February 1999. Between these two events, Mrs Beart wrote a letter of resignation addressed to Mr Podmore: that letter, is dated 28 January 1999. That is why we have to consider whether Mrs Beart's effective dismissal was a direct dismissal or whether it was a constructive dismissal, and, in any event, whether it was unfair. And, of course, we have also to consider whether the Prison Service discriminated against Mrs Beart on the grounds of her (now admitted) disability, namely, depression.

Extracts from the Staff Handbook and from the Codes dealing with conduct and discipline in the Prison Service and the management of long-term sick absence form a very substantial part of the bundle. ( Extracts named).
Parts of these document were extensively referred to in the course of the case. We have already referred to paragraph 1.12 of the Staff Handbook. We now set out some further extracts.

The section of the Handbook dealing with the Equal Opportunities and Discrimination begins at page 36. Paragraph 4.1 asserts that "The Prison Service is an Equal Opportunities Employer." The paragraph includes the statement that the "criteria for advancement are ability, qualifications, and suitability for the work regardless of race, nationality or ethnic origin, religion, gender, sexual orientation, marital status, disability or any other irrelevant factor." Paragraph 4.2 includes the statement that "the Prison Service is wholly committed to the principles set out in its Policy Statements on race relation and people with disabilities…."

Paragraph 4.6 sets out the Acts of Parliament which then currently (October 1996) formed the basis of the Prison Service's Equal Opportunities Strategy: the list includes the Disabled Persons (Employment) Act 1944, and the Chronically Sick and Disabled Persons Act 1970. Rather surprisingly, the list does not include the Disability Discrimination Act 1995, which was passed on 8 November 1995, and was due to come into effect on 2 December 1996.

Paragraph 4.8 deals with the formal responsibility of the Equal Opportunities Officer which is said to be limited to those forms of discrimination that are the subject of legislation I.e. "on grounds of race, colour, nationality, ethnic origin, gender and marital status."  Again, the news of the passing of the Disability Discrimination Act appears not, by October 1996, to have penetrated to the draftsman of the Handbook.

Paragraphs 4.22 and 4.23 set out some praiseworthy aims about developing the potentialities of staff with disabilities, but again, make no reference to the Disability Discrimination Act. One provision of paragraph 4.23 is that the Prison Service makes a commitment "to take action to ensure that key employees develop the awareness of disability needed to make the other commitments in the paragraph work."

The next parts of the Staff Handbook which are relevant to the case are paragraphs 11.17 and 11.18. We set them out:-

"11.17  A member of staff is normally entitled to a maximum of 6 months sick leave on full pay during any period of 12 months. After that you will receive half pay subject to a maximum of 12 months sick absence in any period of 4 years."

"11.18  However, if you are absent from work as a result of an injury or illness sustained in the course of duty you may apply to have the period of absence on full pay extended by up to a maximum of 6 months in any 4 years….."

The other important extracts form the Handbook are from paragraphs 19.16--19.25. Paragraphs 19.16 to 19.20 have the sub-heading "Outside Occupation" and 19.21 to 19.25 have the sub-heading "Activities Outside the Prison Service."  We set out some of these paragraphs:-

"19.16 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."

"19.17  No member of the Prison Service, is allowed to accept any post in the management of any Society, or any trading, commercial, industrial or financial firm or company which would require your attendance at any time during normal working hours. In addition, you must seek permission from Personnel Business Link if you wish to undertake work which, if you were leaving the Civil Service, would require you to submit an application under the Business Appointment Rules."

"19.18  You are not allowed to engage in any activity which might lead to your being less effective as a member of the Prison Service."

"19.22  As a Civil Servant you must give your individual allegiance to the State while the State has a claim on your services. However, subject to this, the Prison Service recognises that staff who have the interest and initiative to engage in activities which are outside the scope of their duties, though related to them, are likely to enhance their usefulness to the Service. Such activities are encouraged provided that official work does not suffer."

"19.23  Provided there is no question of propriety, the Prison Service is not concerned with such activities unless they involve:

• time; or
  
• official information and/or experience acquired in the course of official duties; and/or
  
• payment from a Government Department."
  

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