HM Prison Service v Johnson

Under the Disability Discrimination Act 1995, employers must make reasonable adjustments for employees in certain circumstances. In HM Prison Service v Johnson (2007, IRLR 951) the Employment Appeal Tribunal (EAT) said that, for employers to be liable, employees must be actually suffering from the disability that they are complaining about.

Basic facts

Ms Johnson started work as a psychologist at a high security prison in October 2002. Before her appointment, she told her employers that she suffered from a number of physical disabilities, but did not disclose any psychiatric history.

Shortly after taking up her new position, a group of colleagues started harassing her, disputing her claim to being disabled. 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.

She went off sick for long periods in 2003, returned to work in December but went off sick again in February 2004. 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.

Tribunal decision

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.

However, it said that she had not started to suffer from a disability until September 2003 when she was prescribed anti-depressants by her GP, and put her earlier physical symptoms down to “psychosomatic overlay”.

EAT decision

The EAT disagreed. It said that although the tribunal was entitled to find that the prison service had treated Ms Johnson badly, it should have judged “each complaint in the context of the situation as it was at the date in question”. It also said that, for employers to be liable, employees must be actually suffering from the disability that they are complaining about.

On that basis, the EAT said the tribunal should have made a careful assessment of what the prison service knew or should have known by September 2003 about the nature and extent of Ms Johnson’s disability, as well as what was reasonable and practicable to do at that stage. It remitted this issue to another tribunal for consideration.

The EAT then said that the tribunal could not have concluded that Ms Johnson had suffered disability discrimination under the DDA, since it had found that the reason for the decision not to exclude the probation officer from the prison had not been related to her disability, but on what the prison governor thought was in the best interests of the prison. This may have been an inadequate response, but it was not discrimination.

Finally, it 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.