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" 2 These procedures start form the assumption that all sickness absence is genuine. Any member of staff may be absent from duty because of illness from time to time. The primary duty of local management is to respond sympathetically and supportively and help them to return to work, encouraging them to seek medical advice and reminding them of the help which the Staff Care and Welfare Service can offer them."
" 3 Staff are a very valuable but also a very expensive resource….."
" 5 The purpose of the long-term sickness absence procedures is to manage the individual's return to work, either on a full time or phased basis, as soon as he/she has sufficiently recovered. The aim of the service is to retain trained staff wherever possible, but where their medical condition is deemed to be serious and irreversible to effect their medical retirement in an efficient and humane manner. Local personnel will operate these procedures in conjunction with BMI Health Services." [BMI Health Services are a private health care organisation to whom the Prison Service appears to have delegated its health care responsibilities.]
" 7 Where there is clear evidence that the members of staff are not sick but are claiming to be so, this amounts to defrauding the Prison Service and may be dealt with either by stoppage of pay and/or under paragraph 1.5 of the Code of Conduct and Discipline."
Reference was also made to paragraph 17 of the Order, but we do not feel the need to set it out. However, we quote paragraphs 19 and 20:-
" 19 Where there is unequivocal and corroborated evidence that a member of staff on self-certificated or certificated sick leave has not been sick, pay may be stopped by the Governing Governor or Head of Unit and/or action taken under the Disciplinary Code. A member of staff has an immediate right of appeal against any decision to stop his/her pay…" And there is a note to that section: "Mandatory--Personnel Business Link must be consulted for advice in these circumstances."
" 20 Local personnel staff are reminded of the need to ensure that personal information about individuals is confined to those who require the information for the purposes of carrying out their duties and to ensure that confidentiality is observed."
The Order then proceeds to discuss the handling of longer term sickness absence and sets out the first stage of such handling as "monitoring and assessment" (paragraphs 21-23)
" 21 Normally, acts under these procedures will be appropriate where a member of staff has been or will be continuously off sick for more than one month…"
" 23 Local personnel staff will wish to consider, on the basis of medical certificates and other information given by the member of staff, whether a return to work is likely shortly. If so, no further action may be required. If not, consider the next stage."
The next stage is examination by BMI Health Services or the Occupational Health Medical Advisor.
" 29 BMI Health Services will either obtain a relevant GP's/LMO/Consultant Report and report on their conclusions in the light of this or arrange a personal examination and write a report on the outcome."
" 30 There are five possible outcomes to a referral:
return to work within a clearly defined time is envisaged;
prognosis remains unclear and further reports/examinations will be needed;
there is no prospect of a return to work and medical retirement is to be broached;
return to work is possible on the basis of limited duties, limited hours, redeployment, re-Grading or relocation….The provisions of the Disability Discrimination Act 1995 must be borne in mind if these options are to be rejected. [ This Order is dated 17 December 1997: by that time , the news that the Disability Discrimination Act had been passed and was in operation had clearly reached the Headquarters of the Prison Service.]
there is little prospect of a return to work but insufficient grounds to justify medical retirement and hence action under the Unsatisfactory Attendance Procedures may be appropriate. [These do not apply in this case.]
And paragraph 32 provides:-
" 32 One of the following actions will generally be needed in response to the relevant Occupational Health Medical Advisor conclusions set out in stage 3:
await further medical report from OHMA in due course
proceed to medical retirement action
review and await further reports/examination in dud course, which may result in medical retirement
make arrangements for phased return to work
proceed towards dismissal for unsatisfactory attendance."
Lastly we deal with some of the sections of the Code dealing with Conduct and Discipline in the Prison Service. The document begins with an introduction that states that:
" The Notes for Guidance are intended to assist managers in the interpretation and use of the Code of Conduct and Discipline. They are primarily for the use of Governors and Heads of Divisions but should also be made available to members of staff."
Then there is an introduction to the Code. Paragraph 1.3 asserts that the whole document, including the Code is based on the following principles:-
"(i) It is a fundamental principle of all disciplinary action--and the test of its fairness under employment law and procedures at the Civil Service Appeal Board--that employers and managers must act in a way which an objective observer would consider reasonable--for example in relation to:
the grounds for believing that misconduct took place
the sufficiency of the investigation of the facts
the disciplinary procedure
the form of any penalty imposed, taking into account all the circumstances (including the nature of the working environment)."
"(ii) In the interests of both justice and fairness, all matters relating to disciplinary action must be handled as speedily as possible."
"(v) A member of staff who is the subject of formal disciplinary proceedings must
be told in writing of the complaint against them in advance of any disciplinary hearing
be provided with copies of any written evidence (including witness statements) forming the basis for the complaints
be given the opportunity to state their case and challenge any evidence before any decision is made."
"(vi) A member of staff under investigation for alleged misconduct or facing formal disciplinary proceedings has the right to be assisted by a work colleague from their own place of work….or by a representative of a recognised trade union, at all stages of the process."
"(viii) No member of staff will be dismissed for a first breach of discipline, except in the case of gross misconduct (see paragraph 1.9 of the Code)."
The first section of the Code has the general heading Behaviour Which May Attract Disciplinary Action. Paragraph 1.1 provides:-
"Staff must be aware that any behaviour which is not specifically mentioned below but which is in clear breach of established standards or conduct expected of members of the Prison Service may still lead to disciplinary action."
Paragraph 1.4 quotes "Performance of Duties" includes "failure to obey a lawful and reasonable order or written instruction."
Paragraph 1.5 "Timekeeping and Attendance", which, it will be remembered is referred to in paragraph 7 of the Order for the management of long-term sickness absence, includes "abuse of Prison provisions relating to sick absence."
Paragraph 1.8 is headed "General Misconduct" and includes failure to comply with any "Prison Service Rules, Instruction or Handbook currently in force." And paragraph 1.9 provides:-
"Some instances of misconduct will be so serious as to make any further relationship and trust between the Prison Service and the member of staff concerned impossible. They fall within the category of gross misconduct."
The paragraph then sets out examples of gross misconduct of which the only ones which are relevant to this case are:-
serious instances of theft or of fraud at work
insubordination leading directly to serious disorder or loss of control
Part 2 of the Code deals with the investigation of alleged or suspected incidents of misconduct. Paragraph 2.1 makes the obvious point that "before disciplinary action is taken it is essential to establish the facts." Paragraph 2.2 provides that "investigations which may lead to disciplinary action against a member of staff must take place as soon as possible after any misconduct is alleged or suspected."
Paragraph 2.5 provides
"When an investigation which may lead to disciplinary action has been mounted any member of staff who has been interviewed in connection with the investigation must be:-
Told before being questioned that the interview is part of such an investigation and the reasons for it, and
Informed that any information which emerges from the investigation may be used in disciplinary proceedings.
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