HM Prison Service v Johnson – 2007

What happened?

The Claimant (Ms Johnson) was a prison psychologist who developed a depressive illness amounting to a disability within the terms of the 1995 Act. This followed, and at least partly caused by, an episode of bullying in the workplace. In May 2003, the prison started an investigation and although many of her complaints were substantiated, she felt that, overall, it was badly handled. In particular, the prison governor’s decision not to exclude a probation officer because of the impact it would have on the prison’s relationship with the probation service as a whole. In December 2004, a medical report indicated she was unlikely to be able to return to such a “demanding profession”. She was dismissed at the end of January 2005 and her appeal was rejected in July. Ms Johnson claimed unfair dismissal and disability discrimination, among other things.

The Hearings

The tribunal decided that Ms Johnson had been automatically unfairly dismissed and that she had been discriminated against under the DDA 1995. It said that the prison service had failed to protect her against harassment and had failed to make reasonable adjustments by not finding her an alternative place of work. The EAT said that the decision to dismiss Ms Johnson was within the range of reasonable responses open to her employer. She had been off sick for 11 months and medical opinion indicated there was no prospect of her being able to return in the foreseeable future. Although the behaviour of the prison service had left a lot to be desired at times, employers could still justify the dismissal of a disabled employee, even if they were partly to blame for their disability.

Take away points

• All organisations should have a grievance policy that they follow and should refer to this where necessary. All meetings relating to an investigation should be recorded – written or verbal and kept on file.
• When deciding on adjustments, employers must first identify the disadvantage faced by the relevant employee and whether the proposed adjustments would alleviate it. The adjustments must prevent a disabled person from being placed at a substantial disadvantage, compared to those employees who are not disabled.

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