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||Neutral Citation Number:  EWCA Civ 879
||Case No: A2/2015/0447
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM The Employment Appeal Tribunal
HH Judge Serota QC
||Royal Courts of Justice
Strand, London, WC2A 2LL
||4 July 2017
B e f o r e :
LORD JUSTICE GROSS
LORD JUSTICE UNDERHILL
LORD JUSTICE LINDBLOM
|| EURIDES PEREIRA DE SOUZA
||- and -
||VINCI CONSTRUCTION (UK) LTD
The Appellant was represented by her husband, Mr Greg O'Cathail
Mr Thomas Cordrey (instructed by Magrath Solicitors) for the Respondent
Hearing date: 23 May 2017
HTML VERSION OF JUDGMENT APPROVED
Crown Copyright ©
Lord Justice Underhill :
- From 1 May 2005 to 15 November 2012 the Appellant was employed as a cleaner at London Underground's premises in High Holborn. Initially she was employed by Rentokil Initial Facilities Services (UK) Ltd but on 29 April 2012 her employment transferred under TUPE to the Respondent, Vinci Construction (UK) Ltd. Vinci has inherited Rentokil's liabilities arising out of the employment relationship.
- The Appellant has brought five sets of proceedings against her employers in the employment tribunal. The first two were brought against Rentokil, but Vinci has been substituted as the respondent. The last three were commenced post-transfer and were accordingly against Vinci from the start: the conduct complained of in the first of them was originally conduct on the part of Rentokil, but the Appellant complains also of its continuation by Vinci. We are only concerned with the first three cases. They are primarily claims brought under the Equality Act 2010 for disability discrimination (including harassment and victimisation), though there are also claims for arrears of pay. The details of the claims are immaterial for the purpose of this appeal. It is sufficient to say that they include allegations of various forms of bullying and other inappropriate treatment.
- At a case management hearing on 8 October 2012 Vinci conceded liability in respect of the entirety of the first three claims, which of course related primarily not to its own conduct but to that of Rentokil. Some forty acts complained of were identified from an analysis of the three claims, and a remedy hearing was directed.
- Vinci's concession reflected the stance which it had already taken in relation to a number of complaints which the Appellant had pursued against Rentokil under its internal grievance procedure. The complaints had been dismissed at the first stage of the procedure, but at an appeal conducted by Vinci management on 7 September 2012, following the transfer, all her grievances had been upheld, the chairman acknowledging that Rentokil had been "guilty of systemic management failures and a failure in their duty of care towards [the Appellant]".
- The remedy hearing took place over four days in April 2013 before an employment tribunal chaired by Employment Judge Charlton. The Appellant was represented by her husband, Mr Greg O'Cathail. The Respondent was represented by Ms Lucinda Harris of counsel.
- By a judgment sent to the parties on 26 November 2013 the Appellant was awarded compensation in the sum of £12,000 (plus interest). The elements in that award were:
(1) Injury to feelings. The Tribunal awarded £9,000 for injury to feelings. It referred to the well-known decision of this Court in Vento v Chief Constable of West Yorkshire Police  EWCA Civ 1871,  ICR 318, and to the decision of the EAT in Da' Bell v National Society for Prevention of Cruelty to Children  UKEAT 0227_09_2809,  IRLR 19, in which the guidance figures given in Vento were up-rated for inflation. On that basis the award was towards the lower end of the "middle Vento band", being £6,000-£18,000.
(2) Psychiatric injury. The Tribunal awarded £3,300 for the exacerbation of a depressive illness which the Appellant had suffered for some months.
Two features of those awards give rise to the present appeals.
- First, the award for psychiatric injury incorporated a 10% uplift corresponding to that applied in the civil courts as a result of the decision of this Court in Simmons v Castle  EWCA Civ 1039 and 1288,  1 WLR 1239. The Tribunal applied no such uplift to the award of compensation for injury to feelings.
- Secondly, the Tribunal declined to apply any uplift to the award under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992, which applies where an employer has failed to comply with the provisions of a relevant ACAS code.
- The Appellant appealed to the EAT on a large number of grounds, but the only grounds which were permitted to proceed to a full hearing related to the Tribunal's failures to apply the Simmons v Castle uplift to the injury to feelings award and to apply any uplift under section 207A. The Respondent cross-appealed against the application of the uplift to the psychiatric injury award.
- The appeal was heard in the EAT by HHJ Serota QC, sitting alone, on 8 January 2015. Mr O'Cathail was unable to represent the Appellant: Judge Serota records at para. 19 of his judgment that she was able to add little to what appeared in the very full skeleton argument prepared by him. Mr Thomas Cordrey of counsel appeared for the Respondent. The Judge announced his decision at the end of the hearing but handed down a written judgment on 20 March 2015, now reported at  ICR 1034. He dismissed the Appellant's appeal in both respects and allowed the cross-appeal.
- The Appellant appeals against all aspects of the order of the EAT. She is again unrepresented but assisted by her husband. She was unable for health reasons to attend the hearing before us but she and Mr O'Cathail appeared by video-link. Mr Cordrey again appeared for the Respondent, and we were assisted by his clear and focused skeleton argument and oral submissions. Because the Simmons v Castle point is of considerable general importance, we considered, and canvassed with the parties, whether we should seek the assistance of an amicus; but we have in the end concluded that that is not necessary.
(A) THE SIMMONS v CASTLE ISSUE
COMPENSATION FOR NON-PECUNIARY LOSS IN DISCRIMINATION CASES
- Enforcement of rights under the 2010 Act is the subject of Part 9. Claims may be brought either in the civil courts (that is, in England and Wales, the County Court) or in the Employment Tribunal, depending on the Part of the Act under which the claim arises.
- Claims in the civil courts are treated first: see chapter 2. Section 119 (2) (a) provides that the County Court has power to grant any remedy which could be granted in the High Court in proceedings in tort. That means, among other things, that it can make an award of damages for personal injury: that, as first authoritatively recognised in Sheriff v Klyne Tugs (Lowestoft) Ltd  ICR 1170, includes what is generally described as "psychiatric injury". Section 119 (4) provides:
"An award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis)."
- Claims in the Employment Tribunal are treated in chapter 3. Remedies are governed by section 124. Section 124 (6) provides:
"The amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by the county court … under section 119."
- Those provisions substantially reproduce those of the predecessor anti-discrimination legislation. It has long been the practice of employment tribunals to make awards in discrimination cases in respect of both injury to feelings and, where the evidence supports it, psychiatric injury. Those two heads are regarded as conceptually distinct, and attracting separate awards, though the authorities point out that they are liable in practice to overlap and warn against double-counting (see, e.g., HM Prison Service v Salmon  UKEAT 21_00_2404,  IRLR 425). As regards the assessment of compensation for injury to feelings, the leading authority is Vento, to which I have already referred. As regards the assessment of compensation for psychiatric injury, the tribunal will in principle (and subject to the issue raised by this appeal) follow the level of damages for equivalent injury in the civil courts. As to that, the Judicial College publishes regularly updated "Guidelines for the Assessment of General Damages in Personal Injury Cases", which include a chapter covering psychiatric and psychological damage.
SIMMONS v CASTLE
- The background to the decision in Simmons v Castle is well-known, and I need give only the barest summary. In December 2009 Sir Rupert Jackson published his "Review of Civil Litigation Costs: Final Report". That recommended a number of changes to the rules governing the recovery of costs in personal injury litigation, including the abolition of the right of successful claimants proceeding under a CFA to recover from defendants the amounts of the success fee payable to their solicitors and of their ATE premiums. That meant that their net recovery would be reduced. As a quid pro quo Sir Rupert recommended that there be "an increase in non-pecuniary general damages, such as pain, suffering and loss of amenity in tort cases, for all claimants".
- That element in Sir Rupert's recommendations could only be implemented by the courts. Simmons v Castle was the vehicle for that implementation. There were in fact two decisions of this Court (in both cases comprising Lord Judge CJ, Lord Neuberger MR and Sir Maurice Kay). In the first, handed down on 26 July 2012, the general principle was enunciated. There was then a further hearing at which certain issues raised by the Association of British Insurers, the Association of Personal Injury Lawyers and the Personal Injuries Bar Association were considered. The Court handed down a second judgment on 10 October 2012. Its conclusion was summarised at para. 50 of its judgment (which was in the same terms, subject to one modification, as para. 20 of its earlier judgment) as follows:
"Accordingly, we take this opportunity to declare that, with effect from 1 April 2013, the proper level of general damages in all civil claims for (i) pain and suffering, (ii) loss of amenity, (iii) physical inconvenience and discomfort, (iv) social discredit, or (v) mental distress, will be 10% higher than previously, unless the claimant falls within section 44(6) of LASPO. It therefore follows that, if the action now under appeal had been the subject of a judgment after 1 April 2013, then (unless the claimant had entered into a CFA before that date) the proper award of general damages would be 10% higher than that agreed in this case, namely £22,000 rather than £20,000."
- The straightforward issue raised by this ground is whether the Simmons v Castle uplift should be applied to awards of compensation for injury to feelings and for psychiatric injury in discrimination cases in an employment tribunal. Although the arguments can be refined in various ways, the essential argument that the uplift should be applied is that that is necessary so that the award should correspond to what would be awarded in an equivalent case in the County Court, as required by section 124 (6) of the 2010 Act; and the essential argument that it should not is that the rationale for the uplift has no application in the employment tribunals, where costs are not generally awarded in the first place.
THE AUTHORITIES IN THE EAT
- The issue of the applicability of the Simmons v Castle uplift has arisen on several appeals to the EAT, with different outcomes. Since the issue is one of pure law which we have to resolve for ourselves there is nothing to be gained by reviewing the reasoning in those cases in any detail, and I will confine myself to a very short summary.
- The first case in which the issue arose was The Cadogan Hotel Partners Ltd v Ozog  UKEAT 0001_14_1505, but in that case counsel for the employer simply conceded that the uplift applied (see para. 39 of the judgment of HH Judge Eady QC).
- In The Sash Window Workshop Ltd v King  UKEAT 0057_14_0112,  IRLR 348, the issue was contested. Simler J dealt with it at paras. 50-53 of her judgment. Having reviewed the background to Simmons v Castle, the terms of section 124 (6) and the decision in Ozog, she concluded, at para. 53:
"In my judgment there is no basis for limiting the 10% increase to all torts save for the tort of discrimination. Section 124(6) Equality Act 2010 serves to emphasise the point against him … ."
- The first judgment in the EAT to go the other way was that of Judge Serota in the present case. His reasons for holding that the 10% uplift should not be applied can be summarised as follows:
(1) The rationale for the uplift did not apply to proceedings in the employment tribunals since they are (generally) a no-cost jurisdiction (paras. 49-51)
(2) Nothing is said in Sir Rupert Jackson's report or in either of the Simmons v Castle judgments to suggest that he or this Court had awards of compensation in the employment tribunals in mind (paras. 47-48 and 52).
(3) It was not the effect of section 124 (6) that "employment tribunals are required to award precisely the same compensation as a country court" (para. 55). Judge Serota referred to an observation of Smith J in Prison Service v Johnson  ICR 275 which I consider at paras. 28-29 below.
- In Chawla v Hewlett Packard Ltd  UKEAT 427_13_2502,  IRLR 356 the point arose only tangentially and Slade J did no more than say that she preferred Judge Serota's decision in this case to those in Ozog and King: see para. 91 (p. 364).
- In Beckford v London Borough of Southwark  UKEAT 0210_14_2711,  IRLR 178, Langstaff P reviewed the preceding cases and held that the uplift did fall to be applied. His discussion of the point at paras. 24-51 of his judgment (pp. 181-4) is full and thoughtful, but it is sufficient to summarise it as follows:
(1) Section 124 (6) requires awards in the County Court and the employment tribunals to be comparable, which is not consistent with the level of awards in one to be 10% above that in the other (para. 42).
(2) It would be incoherent and contrary to judicial policy that essentially the same injury should be differently compensated in different courts/tribunals (para. 42).
(3) In Simmons v Castle the Court deliberately stated the effect of its ruling as applying across the board, and not only in those cases where, as a matter of fact, claimants were liable to pay their solicitors a success fee or had paid ATE premiums (para. 43).
(4) The fact that the particular rationale for the introduction of the 10% uplift did not apply in the employment tribunals was of less significance than might appear at first sight since, even apart from and prior to the Jackson report, the costs regimes in the County Court and the employment tribunals were different, and yet section 124 (6) and its predecessors had required that the level of awards should correspond (paras. 44-47). In fact, the position of claimants in the two forums as regards funding had been brought closer by the Jackson reforms, so that a differential in the level of their compensation would make even less sense (para. 48).
(5) Judge Serota in the present case had erred by not giving sufficient consideration to the preceding points (para. 49).
DISCUSSION AND CONCLUSION
- The Appellant submitted that Judge Serota's reasoning was wrong, essentially for the reasons given by Langstaff P in Beckford. Mr Cordrey sought to uphold the Judge's reasoning. I will refer to certain particular submissions in more detail below.
- In my judgment the 10% uplift should have been applied to both elements in the ET's award. My reasons are as follows.
- My starting-point, like that of Langstaff P in Beckford, is the language of section 124 (6) of the 2010 Act. I believe that what that language means is that the amount awarded by an employment tribunal in respect of a particular head of loss should be the same as if an award in respect of the identical loss had fallen to be made in the County Court. I regard that as the natural meaning of the requirement that the two amounts should "correspond", but if there were any doubt about that I would regard such a construction as necessary to give effect to the evident statutory purpose. The various forms of discrimination defined in Part 2 of the Act are conceptually the same whether the acts giving rise to them fall under Part 5 ("work"), over which the employment tribunals have jurisdiction, or under one of the other Parts where jurisdiction lies with the County Court. The injury to feelings or psychiatric injury caused by an act of discrimination in the workplace is not inherently different from the same injury caused by an act of discrimination in, say, an educational context (which would fall under Part 6). It would be unacceptable for the approach to compensation to be different depending on the Part of the Act under which liability arises – or, more particularly, for an injury of the same level of seriousness to attract a different award; and I think it is clear that the purpose of section 124 (6) is to see that that does not occur.
- Mr Cordrey submitted that the term "correspond" does not connote absolute identity, and that that would in any event be an impossible requirement to observe, since every case is different and one could never point to an identical case in the County Court. He also referred to the passage in Prison Service v Johnson on which Judge Serota had relied (see para. 22 (3) above). At p. 283 of her judgment in that case Smith J gave some general guidance about the approach to awards for injury to feelings; this was subsequently approved in Vento (see para. 53 of the judgment of the Court (p. 109)). Her point (iii) was:
"Awards should bear some broad general similarity to the range of awards in personal injury cases. We do not think this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards."
Mr Cordrey submitted that that meant that section 124 (6) required no more than "a broad general similarity" between awards for similar heads of loss in the County Court and the employment tribunals.
- I do not accept those submissions. As for the passage from Prison Service v Johnson, that is not addressing the effect of section 124 (6) (or its predecessors) – i.e. the relationship between tribunal awards and County Court awards – at all; it is concerned with the different question of the relationship between the level of awards for "injured feelings" under section 119 (4) and awards for personal injury. As for the point that you will never know exactly what the County Court would have awarded in a particular case, that is obvious but irrelevant: section 124 (6) is concerned with the question of principle, and it would plainly contravene the principle there set out if awards were consistently 10% higher in the County Court than in the employment tribunals.
- I turn to Mr Cordrey's principal point, which was adopted in the reasoning of Judge Serota. That is, as I have said, that the rationale for the Simmons v Castle uplift in the County Court has no application in the employment tribunals: the removal of the right to recover a success fee or an ATE premium made no difference to the position of tribunal claimants who had never normally been entitled to recover costs at all.
- I of course accept that that was the rationale for the uplift. I also accept that neither Sir Rupert Jackson nor this Court had any specific intention to raise the level of awards for claimants in the employment tribunals. I can therefore understand the perception that it is anomalous that such claimants should get the benefit of an uplift designed to compensate for a reduction in net recovery which they have not suffered. However, I do not believe that any such anomaly can justify qualifying the plain words of the statute, which straightforwardly require that the level of awards in the employment tribunals and the County Court should correspond, or ignoring the important policy considerations that underlie that requirement. Section 124 (6) says what it says, and the reason why, as a matter of history, the level of awards in the County Court is what it is at a particular time is immaterial.
- Having said that, the apparent anomaly is in any event not as clear-cut as it may appear at first sight. For one thing, it was recognised both by Sir Rupert Jackson in his original report and by this Court in Simmons v Castle that because the uplift would apply to all awards in respect of the five heads of loss specified, irrespective of the particular claimant's funding arrangements, those claimants who were unrepresented or not using a CFA (so-called "conventional claimants") would get a windfall. The Court expressly rejected a submission by ABI that conventional claimants should not get the benefit of the uplift (see paras. 12-13 and 41-44 of the second judgment (pp. 341 c-g and 347 a-g)). So the windfall for tribunal claimants is not unique to them. Further, it is important to remember that the costs regimes in the County Court and the employment tribunals have always been different in the obvious basic respect that costs are generally recoverable in the one and generally irrecoverable in the other, so that claimants who use lawyers in an employment tribunal will make a lower net recovery than those making equivalent claims in the County Court; yet the discrimination legislation has from the start required that awards of compensation in the two forms should correspond. The recoverability of costs is simply left out of the equation. In that context it would be incoherent to undermine the fundamental requirement of correspondence in order to take account of the fact that the Simmons v Castle uplift is intended to maintain a particular level of net recovery in the County Court. This is essentially the same point as is made by Langstaff P in Beckford: see para. 24 (4) above.
- There is no distinction to be drawn for these purposes between awards for psychiatric injury and for injury to feelings. The latter as much as the former are subject to the Simmons v Castle uplift in the County Court: although that precise label is not used, such an award is clearly covered by head (v) ("mental distress") of the formulation at para. 50 of the second judgment (see para. 17 above).
- If, as I would therefore hold, the effect of section 124 (6) is that awards of compensation in the employment tribunals for losses of the character identified in Simmons v Castle should be 10% higher than they were prior to 2013, the question arises of how that is to be reliably achieved. There is no problem as regards psychiatric injury, since the current Judicial College Guidelines incorporate the uplift, and if a tribunal uses them as its benchmark it will automatically be "Simmons v Castle-compliant". The position is not quite so straightforward as regards awards for injury to feelings, but essentially the same effect could be obtained by applying the uplift to the brackets specified in Vento. There is, however, the complication that the Vento figures themselves require updating for inflation, as was done in Da' Bell but several years ago. It would kill two birds with one stone if fresh guidance were issued which adjusted the Vento figures both for inflation and so as to incorporate the Simmons v Castle uplift. Although that could be done in the context of a particular case, as in Da' Bell, it occurs to me that it might be better done in the form of published guidance from the President of the Employment Tribunals (England and Wales) and/or the President of the Employment Appeal Tribunal, who could consult, to the extent that they thought necessary, about the calculation of any inflation uplift. However, what precise course to follow is not something that this Court can direct. Pending any such guidance, tribunals can of course do their own adjustment, which need not be mathematically precise (cf. my observations in the EAT in Bullimore v Pothecary Witham Weld  UKEAT 0189_10_2109,  IRLR 18, at para. 31).
- I would accordingly allow the appeal on the Simmons v Castle issue. I would restore the ET's award of £3,300 for psychiatric injury and increase its award of £9,000 for injury to feelings to £9,900.
(B) THE SECTION 207A ISSUE
- Section 207A of the 1992 Act reads, so far as material, as follows:
"(1) This section applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2.
(2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that —
(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,
(b) the employer has failed to comply with that Code in relation to that matter, and
(c) that failure was unreasonable, the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.
(4) In subsections (2) and (3), "relevant Code of Practice" means a Code of Practice issued under this Chapter which relates exclusively or primarily to procedure for the resolution of disputes.
The Appellant's claim in these proceedings falls within the jurisdictions specified in Schedule A2. The Codes of Practice "issued under this chapter" (being chapter III of Part IV of the Act) include Codes of Practice issued by ACAS "containing such practical guidance as it thinks fit for the purpose of promoting the improvement of industrial relations": see section 199 (1).
- The relevant Code of Practice for our purposes is ACAS Code of Practice no. 1, entitled "Disciplinary and Grievance Procedures". The version current at the relevant time was issued in 2009, though there is a more recent version issued in 2015. The section dealing with Grievances has the sub-heading "Keys to Handling Grievances in the Workplace". Its detailed terms are then set out under seven headings, the first five of which are:
– Let the employer know the nature of the grievance
- Hold a meeting with the employee to discuss the grievance
- Allow the employee to be accompanied at the meeting
- Allow the employee to take the grievance further it not resolved.
I need not set out the text under those headings, but it is important to note that it is specified expressly that each stage should take place "without unreasonable delay": see paras. 32, 38, 39-40 and 43.
THE PARTIES' CASES IN THE ET
It was the Appellant's pleaded case in the ET that the matters of which she complained had been raised by her with Rentokil under its grievance procedure but that her grievances had not been considered either promptly or properly. In the agreed List of Issues scheduled to a case management order dated 8 December 2011, covering the first two of her three claims, the forty acts complained of included the following:
"A3.8 The manner in which the Respondent handled the Claimant's grievance submitted on 7 February 2011 …
A4.1 Unreasonable delays in dealing with the Claimant's grievance
A4.10 Dismissal of the Claimant's grievance dated 7 February 2011 …
A4.11 Dismissal of the Claimant's grievance dated 27 June 2011."
At the further case management hearing on 8 October 2012, to which I have already referred, the following further complaints were recorded:
"2) Outcome of my grievance 2012
3) Unreasonable delays with my grievance 2012
4) Grievance 2012
10) The Respondent's handling of my appeal (2011), the procedure itself, what was done, what was not considered, and the findings and outcome of the appeal.
11) The Respondent's refusal to allow adjustments to the appeal hearing 2011.
12) The Respondent's delays in dealing with my appeal dated 22nd August 2011.
14) The Respondent's scheduling of an appeal hearing on the 15th September 2011.
15) The Respondent's scheduling of an appeal hearing on 22nd September 2011.
16) The Respondent's interference with witnesses that I sought to call upon at my appeal hearing of 11th October 2011.
17) Circumstances surrounding the appeal hearing of 11th October 2011.
20) Respondent's dismissal of my grievance dated 7th February 2011.
21) Respondent's dismissal of my grievance appeal dated 27th June 2011."
The "appeal hearings" referred to are grievance appeals.
At that directions hearing Vinci, as I have already noted, conceded the entirety of the Appellant's claims: the Tribunal's order recites that "at the outset of the hearing the Respondent accepted liability for all extant claims comprised within these three sets of proceedings". As also noted, that concession reflected concessions already made on the internal appeal.
It was the Appellant's case before the ET that Vinci's acceptance of the pleaded claims identified above necessarily meant that it accepted that there had been a breach of the ACAS Code of Practice no. 1. That was not, however, accepted by Vinci. Ms Harris recorded in her closing submissions that the Appellant accepted that Rentokil:
"- invited her to a meeting to discuss the grievance;
- offered her the right to be accompanied, and indeed permitted her to be accompanied by her husband (even though this is not in accordance with R's policy);
- made a decision in respect of her grievance;
- offered her the right to appeal the outcome of her grievance;
- agreed to any request for an extension of time in which to lodge an appeal;
- invited her to a meeting to discuss her appeal; and
- made a decision in respect of her appeal."
It will be seen that those bullets broadly reflected the headings from the ACAS Code. On the basis of those matters Ms Harris submitted that there was no breach of the Code.
THE TRIBUNAL'S REASONS
In the section of its Reasons headed "The Facts" the Tribunal made fairly detailed findings about the primary facts concerning the handling of the Appellant's grievances. It did not reach conclusions about the validity of each of her pleaded complaints, but it did express the view, at the end of para. 16, that:
"It is clear from our consideration of these complaints that a number of the incidents complained of and their effects have been exaggerated by Ms De Souza whose answers under cross examination in relation to a number of matters have indicated that any discrimination was at a low level. The employers did not in our view subject Ms De Souza to an extended campaign of discrimination, but their handling of the issues which faced her in her employment was poor and on the Respondent's admission amounted to discrimination."
Likewise, in considering her claim for injury to feelings, it said, at para. 30
"… that both the incidents themselves and their impact have been exaggerated by Ms De Souza. Her account when under cross examination did not support her assertion that there had been a sustained campaign of discrimination against her and her answers in some respects suggested that any discrimination in relation to a number of incidents complained of had been at a low level, often remedied at the first opportunity and on other occasions made the subject of apologies."
The claim for a section 207A uplift was dealt with at para. 31 of the Reasons, as follows:
"Neither do we award any uplift for a breach of the ACAS code. The Code undoubtedly applied to the grievance procedures and whilst a number of complaints about those procedures have been accepted as acts of discrimination by the Respondent, a consideration of the evidence shows that the Code was not in fact breached in handling the grievances at the centre of this case. Meetings were held to discuss the grievance, the right to be accompanied was acknowledged and indeed Mr O'Cathail attended, the decision was made in respect of the grievance and then the necessary appeal procedures were implemented. The only possible breach we can see was in relation to the appeal which Ms de Souza sought to bring against the dismissal of her 2008 grievance but as this was so long after the event we do not criticise the employer for its response. It is within our discretion to decline to make any uplift and we so decline. HREF='#note4'>"
The essential element in that reasoning is the finding that there was no breach of the Code. It seems in fact that the Tribunal adopted the approach advanced in Ms Harris's submissions: see para. 40 above.
THE APPEAL TO THE EAT
At para. 60 of her Notice of Appeal to the EAT the Appellant challenged that reasoning. Her point was that the concessions made by Vinci at the case management hearing necessarily involved a concession that the ACAS Code had been breached and that it was accordingly not open to the ET to find otherwise.
At a hearing under rule 3 (10) of the Employment Appeal Tribunal Rules 1993 (as amended) HH Judge Richardson allowed that ground of appeal to proceed. At para. 23 of his judgment he said:
"The second arguable point relates to the refusal by the Employment Tribunal to uplift the award under section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992. It does appear to have been accepted that there were substantial delays in dealing with grievances and appeals. These, on the face of it, will have involved breaches of the Code, which requires employers to deal with matters promptly and without unreasonable delay. Paragraph 31 appears to find that there was only one breach. I am doubtful whether this is sustainable in view of the admission of liability. I have found myself wondering whether the Employment Tribunal disregarded breaches before the transfer. If it did, that would arguably be an error of law."
On the full appeal Judge Serota dealt with this issue in two parts of his judgment. At paras. 24-26 he said:
"24. The Claimant has not gone beyond pointing to a series of matters said to be unfair; the Claimant has not demonstrated any further breaches of the ACAS Code by reference to any relevant provision or beyond those considered by the Employment Tribunal.
25. I regard it as convenient to dispose of this ground now before turning to deal with the more difficult point of the effect of Simmons v Castle.
26. The Employment Tribunal, at paragraphs 31 and 32 which I have referred to earlier, has disposed of the issue of the ACAS uplift on the basis of the relevant facts that it found and in the exercise of its discretion. The decision is one to which the Employment Tribunal was entitled to come on the facts, and in the absence of some evidence of other relevant breaches, the decision of the Employment Tribunal cannot properly be challenged. I therefore dismiss this ground of appeal.
At para. 32 he said:
"I have already dismissed this claim, but I agree with the submissions made by Mr Cordrey that the Employment Tribunal in its Judgment of 26 November 2013 had correctly directed itself as to the law at paragraph 25 … and at paragraphs 31 and 32 that it had held the appropriate meeting without unreasonable delay. The Remedy Judgment found that the meeting had been arranged within weeks; see paragraph 12. There is no appeal against this finding and it was open to the Employment Tribunal to conclude as it did that the fact the Respondent had admitted some delay did not prevent the Employment Tribunal finding that there had been no unreasonable delays."
(The reference to para. 32 of the ET's decision is a slip: the only relevant paragraph is para. 31.)
THE APPEAL TO THIS COURT
The Appellant's pleaded grounds of appeal are very general, but she can be treated as pursing the same argument as Judge Richardson allowed to proceed in the EAT. In my view that argument is well-founded. My reasons are as follows.
I start with the position as regards delay, since this is the clearest. The Appellant had explicitly alleged unreasonable delay in the handling of her grievances: see items A4.1, (1), (3) and (12) quoted at para. 38 above. Vinci had expressly accepted those allegations. In the light of that acceptance it seems to me that the Tribunal was obliged to find non-compliance. No attempt – rightly – was made by Mr Cordrey to argue that a concession that Rentokil was guilty of "unreasonable delay" for the purpose of liability could mean something different in the context of the ACAS uplift.
The reason that the Tribunal did not apply Vinci's concessions appears to have been that it believed that it was sufficient, as Ms Harris had submitted, that Rentokil had formally taken each of the steps identified in the Code (see para. 40 above). That is not correct. As Judge Richardson observed, unreasonable delay is itself a breach of an express requirement of the Code (see para. 42 above).
Mr Cordrey drew our attention to the ET's findings of fact, and in particular to paras. 12 and 16 of the Reasons, where it considered the Appellant's allegations of delay on the part of Rentokil in the conduct of the two grievance procedures. He submitted that its findings clearly showed that there had been no unreasonable delay; Judge Serota accepted the same submission at para. 32 of his judgment.
Mr Cordrey is right that the findings of primary fact in paras. 12 and 16 of the Reasons show that both grievances had rather complicated histories. Part of the time that it took to deal with them was due to adjournments requested by the Appellant, some of which were due to her objections to the persons initially tasked by Rentokil with their conduct. There is some ammunition in those findings for a case that Rentokil did not delay unreasonably, and in fact, as we have seen, the Tribunal was quite critical of the Appellant's account of how she was treated. However, no explicit conclusion is drawn by the Tribunal to the effect that there was no unreasonable delay either in the course of its narrative or, as we have seen, when it comes to deal with the uplift claim at para. 31 of the Reasons; indeed in relation to the second grievance the Tribunal says, at para. 16, that "it is accepted that there was a delay which was unacceptable". But, even if it had purported to make such a finding, for the reasons already given I do not believe that it was open to it to do so in view of the terms of Vinci's concession.
Mr O'Cathail submitted that the re-visiting by the ET of the history of the grievance procedures involved re-opening the issues of liability which had been conceded. I do not agree. For the purpose both of assessing her compensation and deciding whether to award an uplift under section 207A, and if so at what level, it was necessary for the Tribunal to understand how serious the admitted breaches were, and it was entirely legitimate for it to hear evidence directed to that question, including cross-examination, and to make findings. No doubt considerations of proportionality might affect how far it was necessary to go into detail, but that was a matter for its case-management assessment. What went wrong here was not that the Tribunal examined the Appellant's complaint at all but that it reached a conclusion, i.e. that there had been no non-compliance with the ACAS Code, that was inconsistent with Vinci's concessions. It would have been open to the Tribunal in principle, in the exercise of its discretion under the section, to conclude that although there had been non-compliance with the Code the breaches in question were not very serious and accordingly only an uplift at the lower end of the available range was appropriate (or indeed to award no uplift at all); but its explicit reasoning at para. 31 is straightforwardly that there was no breach, and accordingly it did not purport to exercise any discretion.
On the face of it, therefore, the section 207A issue will have to be remitted to the ET. We are constrained by the decision of this Court in Jafri v Lincoln College  EWCA Civ 449,  ICR 920; and this case is perhaps a good example of why I concurred in that decision only with express regret. We could only decide the issue ourselves if (a) it was clear beyond argument what uplift the Tribunal should have made or (b) the parties agreed to our doing so. As to (a), it is clear that the Tribunal could reasonably have awarded less than the maximum 25%, and it is not for us to judge where in the available range the correct figure lies. As to (b), Mr O'Cathail was not prepared to agree to that course. I should note that there would be no need for a remittal if the Respondents were willing to concede the maximum uplift; but they have not so far given any such indication.
It would be highly preferable for the remittal to be to the same tribunal. We were told that Judge Charlton has retired. I do not know whether this definitively means that the tribunal cannot be reconstituted; but the correct order seems to me to be that the case be remitted for consideration by the same tribunal if possible but otherwise by a tribunal appointed by the Regional Employment Judge. If in the end the issue has to be decided by a differently-constituted tribunal, I would hope that it can deal with it in a manner proportionate to the limited nature of the issue and the amounts at stake. For example, I can as at present advised see no reason why any relevant findings of fact of the previous tribunal should be re-opened.
I have so far considered only the question of unreasonable delay. It is arguable that some or all of the other complaints admitted by Vinci, set out at para. 38 above, also constituted breaches of the Code. Some of those complaints are about alleged procedural unfairnesses and others are about the actual outcome. Although the mere fact that a grievance has been (as a tribunal subsequently finds) procedurally mishandled or wrongly rejected does not constitute a breach of the Code, there might nevertheless be such a breach if the conduct or decision in question were found to show that the grievance was not considered in good faith. But it is unnecessary for us to decide whether that is so as regards any of the complaints in question. That will be a matter for the consideration of the ET on remittal.
It is extremely unfortunate that this case should have to go back before an ET so long after the event, particularly if (as remains to be seen) it has to be considered by a different tribunal. I must emphasise, because Mr O'Cathail appeared initially to understand differently, that the Tribunal will be concerned on remittal only with the section 207A uplift. The amount at stake is thus, at most, 25% of £13,200 (i.e. £3,400), plus interest. It is in both parties' interests to avoid a further hearing and I strongly urge them to consider compromise. In particular, the Appellant should appreciate that she should not necessarily expect the full 25% uplift, or anything like it, in view of the Tribunal's findings quoted at para. 41 above.
I would allow the appeal on the Simmons v Castle issue and adjust the award as stated at para. 35 above. I would also allow the appeal on the issue of whether the Appellant was entitled to an uplift under section 207A of the 1992 Act, and remit that issue to be determined by the Employment Tribunal in accordance with paras. 51-53 above.
Lord Justice Lindblom:
I agree with both judgments.
Lord Justice Gross:
I also agree and add only a very few words of my own on the Simmons v Castle uplift.
First, I would pay tribute to the logical and cogent argument advanced by Mr Cordrey, despite being satisfied that it cannot prevail.
Secondly and in a nutshell, there is much developing convergence between Courts and Tribunals, so that different legal regimes for comparable claims should be avoided, at least unless there is good reason to the contrary. Here, the language of s.124(6) of the Equality Act 2010 requires the amount of compensation awarded by the Employment Tribunal to "correspond" to the amount which could be awarded by the County Court. In the light of the statutory language and as explained by Underhill LJ, it would be difficult, as a matter of principle, to justify a consistent 10% difference between awards in the County Court and those in the Employment Tribunal.
Thirdly, although as a matter of history the Simmons v Castle uplift was conceived to address the provisions in Sir Rupert Jackson's reforms entailing the loss of the right of successful claimants proceeding under a CFA to recover from defendants the amount of the success fee payable to their solicitors and of their ATE premiums, the uplift was introduced on a universal basis: it was not confined to those claimants whose right to recover success fees and the like had been affected by the Jackson reforms. Accordingly, like Underhill LJ, I do not think that the rationale of the Jackson reforms furnishes a good reason for not applying the uplift to tribunal claimants.
Fourthly, a decision as to the application of the Simmons v Castle uplift plainly falls within the remit of this Court, in particular given the need to bring to an end the divergence of views seen in the judgments of the Employment Appeal Tribunal.
Note 1 Connoisseurs of dictation software errors will enjoy the transmogrification of this case at para. 22 of the Tribunal’s Reasons into Sheriff v the Client Thugs Lowest Off Ltd. [Back]
Note 2 Or, as Mr Cordrey more picturesquely put it, borrowing the phrase from Simmons v Castle itself (though not from a part dealing with this point) they would get “the penny and the bun”. [Back]
Note 3 It is not for us to consider the position as regards Scotland. However, on the face of it this issue simply does not arise there. The equivalent requirement in section 124 (6) as regards a Scottish tribunal is that the amount of compensation should correspond to what could be awarded by the Sheriff, and Sir Rupert Jackson’s report and Simmons v Castle were of course only concerned with the courts of England and Wales. I assume, though I do not know, that levels of awards for personal injury and injury to feelings in the Scottish civil courts were until 2013 comparable to those in England and Wales; if so, the result of this judgment is that such awards may henceforth be 10% lower there than here. But that is not axiomatically unacceptable given that the Act defines claimants’ rights in this respect by reference to the domestic law of the two jurisdictions, which need not always correspond. [Back]
Note 4 I include the last two sentences for completeness, but nothing turns on them for our purposes: the Appellant’s case is based squarely on the handling of the 2011 and 2012 grievances. [Back]
Note 5 There is another slip about which the Appellant feels strongly, namely that she is referred to at para. 11 of the judgment as a Filipino national: she is in fact Brazilian. [Back]
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