APPEARANCES
| For the Appellant |
MISS E  BANTON
(of Counsel)
Instructed by:
Messrs Roiter Zucker
Solicitors
Regent House
5 - 7 Broadhurst Gardens
Swiss Cottage
London NW6 3RZ |
| For the Respondent |
MR I MACCABE
(of Counsel)
Instructed by:
Messrs Moorhead James
Solicitors
21 New Fetter Lane
London EC4A 1AW
|
HIS HONOUR JUDGE BIRTLES
Introduction
- This is an appeal from the Decision of an Employment Tribunal sitting at London South in March, July and August 2002. The Decision was entered in the Register and sent to the parties on 19 September 2002. The Chairman was Mr D N Milton.
- Both parties appealed against the Decision and the appeal was heard by us on 23 May 2003.
- It is important to the background to this appeal to note the history. By an Originating Application dated 27 December 1999, the Appellant claimed unfair dismissal, breach of contract and discrimination on the grounds of disability. All matters were in issue. The matter first came before an Employment Tribunal on 3 July 2000. The Reserved Decision was entered in the Register and sent to the parties on 13 July. The Chairman was Mr D Booth. That Employment Tribunal was constituted solely to consider whether or not the Appellant was disabled within the meaning of the Disability Discrimination Act 1995. It heard evidence and decided the Appellant was not disabled. There was an appeal against that Decision to the Employment Appeal Tribunal and the matter was heard on 15 June 2001, with a judgment delivered by Mr Justice Nelson on 3 August 2001. The Employment Appeal Tribunal allowed the appeal and remitted the matter for a rehearing on the grounds that the Employment Tribunal had erred in law in failing to recognise the difference between the two sets of diagnostic criteria put before it, that is diagnostic criteria contained in the 10th Edition of the International Classification Directory of Diseases (ICD-10) developed by the World Health Organisation and those set out in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) developed by the American Psychiatric Association.
- On 9 October 2000, the second Employment Tribunal decided that the Appellant was unfairly dismissed. The claim of breach of contract was withdrawn. The Chairman was Mr D Booth. The short basis for the Employment Tribunal's Decision was that the Appellant was dismissed for capability and the dismissal was unfair because of the Respondent's failure to look for suitable alternative employment during the notice period: Decision paragraphs 11-12. There was no appeal against that Decision at the time, although the Notice of Appeal with which we are concerned seeks to appeal against the Decision out of time. That Notice of Appeal was received by the Employment Appeal Tribunal on 30 October 2002, i.e. some two years and two weeks after the Decision of 17 October 2000 was entered in the Register.
The Employment Tribunal Decision
- The Employment Tribunal, chaired by Mr Milton, decided:
(i) that the Respondent discriminated against the Applicant on the ground of his disability;
(ii) ordered the Respondent to pay the Applicant the sum of £5000 compensation for injury to feelings;
(iii) ordered the Respondent to pay the Appellant the sum of £2,160 to represent the loss of basic award and £2000 for loss of statutory rights
(iv) ordered the Respondent to pay the Applicant additional compensation for loss of earnings as specified in the Reasons, as already agreed.
They ordered a further remedies hearing. This Decision was the fresh hearing on the issue of disability discrimination which had been ordered by the Employment Appeal Tribunal. We should point out that there was no remedies hearing following the Decision of the second Booth Tribunal on unfair dismissal on the ground of capability.
- The facts in this case are extremely complicated, and as the Decision points out, the Employment Tribunal effectively re-heard much of the medical evidence which had been the subject of the previous hearings. The Appellant was alleged to have been suffering from post-traumatic stress disorder. Much of that material was in the form of written reports, but the Tribunal did hear from Dr Bailey, who gave evidence from the Respondent, as well as the Appellant himself.
The grounds of appeal
- Each party having appealed, the appeals were heard together. We will deal with each of the Appellant's grounds of appeal and then deal with the Respondent's grounds of appeal.
Appellant's ground of appeal 1
- Miss Elaine Banton argued that the Employment Tribunal's determination was wrong in law and/or perverse because there were a number of findings of fact which were either contrary to the weight of the evidence or inconsistent with other material findings of fact by the same Tribunal. These are very helpfully set out in paragraph 5 -13 of her Skeleton Argument. In summary form, she complains about the following:
(1) The Tribunal unfairly without reason found that the Appellant had exaggerated his symptoms: Decision paragraphs 26 and 42. This Tribunal saw the Appellant give evidence twice during the hearing. The Appellant was subject to a number of interviews by different psychiatrists in order for them to be able to write their reports. Inevitable in that process is the fact of self-reportage. The evidence showed inconsistencies and changes in the Appellant's self-reporting to the psychiatrists. That explains the Decision paragraph 42. See also paragraphs 40 and 72. There was adequate evidence upon which the Tribunal could find that the Appellant exaggerated his symptoms.
(2) Miss Banton complains that the Tribunal found that the Appellant had a "moderate" depression: Decision paragraph 38. From a close reading of the Decision it is clear that it carefully considered the medical evidence and was entitled on that evidence to find that the Appellant had a "moderate" depression rather than "severe" depression: see Decision paragraphs 20, 21, 34 - 36. The conclusion of "moderate" depression is at paragraph 38.
(3) Miss Banton also submitted that the Employment Tribunal erred in law in dismissing the suggestion by Dr Lord in his report dated 13 February 2002, that the Appellant's assertion of "feeling suicidal after the dismissal" was not made out. As the Tribunal pointed out, that assertion of Dr Lord was not corroborated in any of the more contemporaneous documentation, i.e. the documentation, medical and non-medical, which went back to the effective date of termination of employment on 1 October 1999. In our judgment, the Employment Tribunal were fully justified in making this finding.
(4) Miss Banton complains that at paragraph 52 of its Decision the Employment Tribunal found as a fact that the Appellant had ceased taking medication for a lengthy spell, at the latest by the end of 1999. That finding of fact is based upon:
(i) the Applicant's own evidence;
(ii) the evidence of the contemporaneous General Practitioner's notes, and
(iii) the evidence of Rachel Canterbury in a late produced letter dated 10 June 2002: see Decision paragraph 52. There is no error of law here.
(5) Miss Banton then argued that the Employment Tribunal's decision that the Appellant had not established that the dismissal in 1999 caused him to continue to be disabled any longer than January 2000 was wrong in law. The Employment Tribunal heard evidence and accepted that the Appellant was pursuing work from January 2000 and obtained his next main job at the Athanaeum Club on 1 April 2000. He continued in that job until 25 January 2001. We fail to see how it can be successfully argued that the Tribunal were not entitled to come to the conclusion that the disability had ceased by January 2000.
(6) Miss Banton then argued an ancillary point which was that there was an error of law in paragraph 38 of the Decision because the Employment Tribunal:
"fails to address how Dr Bailey concluded that there was no impairment under 'F' of his own DSM4 test. Dr Bailey was unable to answer in cross-examination to the strangulation entry in the Appellant's notes and there is no basis for this finding in the absence of any relevant evidence to this effect."
This is to misunderstand the function of this Tribunal. We have not been presented with any notes of evidence at this lengthy Employment Tribunal hearing, and we absolutely refuse to make findings of fact. It is our function to examine the Employment Tribunal Decision to see whether any relevant error of law is made out. The Tribunal make it clear that they accept Dr Bailey's evidence and that there was sufficient evidence for him to be satisfied that the Appellant was at the bottom end of the scale under a number of the headings and at that time the Appellant did not have a "significant impairment" under Clause F of DSM-IV.
(7) Finally, Miss Banton argued that the Tribunal erred in law in dismissing the Appellant's evidence that he could not travel on the Underground: Decision paragraph 44. There is quite clearly no need to hear evidence to the contrary from the Respondent's witness. The issue is a simple one of credibility.
For these reasons there was no error of law in the fact finding process carried out by this Employment Tribunal.
Appellant's ground of appeal 2
Miss Banton refers us to paragraph 87 of the Employment Tribunal Decision where it said this:
"We considered the average awards referred to us by Mr Turner [Counsel for the Respondent] and the various decisions which he had helpfully faxed through to us none of which, in the end, we found to be directly comparable. We took into account the guidelines prepared for our assistance by the Judicial Studies Board and we came to the conclusion that this was a case where the Applicant's personal injury to feelings as a result of the disability discrimination was within a "low" bracket but that we were entitled to view the Respondent's complete failure to contemplate a claim of disability discrimination as something which, to a certain extent, aggravated the award which we might otherwise have made and we therefore make an overall award of £5,000."
(8) Miss Banton makes two submissions. First, she argues that the Employment Tribunal has conflated a personal injury with the award for injury to feelings. We do not think that is the case. Paragraph 87 is one of a number of paragraphs (84 - 87) under the sub-heading "Injury to Feelings". It is also clear to us that the word "personal" at paragraph 87 is an unnecessary interpolation. Removal of that word makes complete sense of paragraph 87. We therefore reject this submission.
(9) Second, Miss Banton argues that if one looks at paragraphs 53 and 87 of the Decision, then as the Tribunal found that the Respondent's dismissal of the Appellant aggravated the Appellant's disability by two months, but it failed to make an award for aggravated damages separately from the award for injury to feelings. This is a misreading of paragraph 53 of the Tribunal's Decision. They there say:
"Our conclusion is that for the purposes of our conclusions on the Applicant's heads of claim, he has not established before us that the dismissal caused him to continue to be disabled and we do not accept that his dismissal, save perhaps for a month or two, aggravated or prolonged the disability and condition which we have found existed during 1999. We find that the Applicant was fit for work in January 2000 and was actively pursuing work from January 2000 and obtained his next main job at the Athanaeum Club on 1 April 2000. He continued in that job until 25 January 2001, i.e. some ten months later."
Assessment of damages is not a science. It is not necessary for the Employment Tribunal to specifically refer to the "perhaps for a month or two" extra time, by which the dismissal may have prolonged the disability. The damages for that short period of time are wrapped up in the £5000. There is no error of law here.
(10) Miss Banton argued that in any event, the award of £5000 is too low in all the circumstances of the case. Her arguments are set out extensively in paragraphs 18 - 22 of her Skeleton Argument. Essentially she argues that looking at the medical evidence as a whole, various authorities show the award was too low. She particularly relies upon Vento -v- Chief Constable of West Yorkshire Police (no. 2) [2003] IRLR 102 and in particular the judgment of Mummery LJ at paragraphs 45 - 68. She refers us to the guidance at paragraph 65, where Mummery LJ said this:
"65 Employment Tribunals and those who practise in them might find it helpful if this court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury
(i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.
(ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.
(iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.
66 There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case."
- We reject Miss Banton's submission that in the circumstances of this case an award in the region of £20,000 - £25,000 is justified. This was a case where the discrimination consisted of a dismissal and a failure to appreciate that the Appellant might be disabled within the meaning of the Disability Discrimination Act 1995. The Employment Tribunal considered the evidence for four days and heard the Appellant give evidence twice. The question for us is whether the award by the Employment Tribunal was so low as to constitute an error of law. Having looked at the whole of the Employment Tribunal Decision, we can see no error of law.
Appellant's ground of appeal 3
- The argument here is that the Employment Tribunal did make a substantial award for aggravated damages. Reference is made to Zaiwalla -v- Walia [2002] IRLR 697 wherein aggravated damages of £7,500 were upheld in a discrimination case. It is quite clear to us from reading that case that there was a sustained course of bullying and intimidation against the Appellant as well as other contractual breaches. The compensation award included £15,000 for injury to feelings, as well as the £7,500 aggravated damages. That case is radically different from the present case, and in our view, there is no comparison between them. It is also quite clear that the Employment Tribunal did make an award for aggravated damages to injury to feelings: see Decision paragraph 87, which we have set out earlier in this judgment. There is no error of law here.
The Appellant's ground 4
- The argument here is that as the Employment Tribunal found that the dismissal caused the continuation of the disability, save, perhaps "for a month or two" beyond January 2000, there ought to be an award to reflect the personal injury. Reference is made to Sheriff -v- Klyne Tugs [1999] IRLR 481. Damages for personal injury are determined by section 8 of the Disability Discrimination Act 1995. The discrimination found proved by the Tribunal in this case was that the Appellant was dismissed for a reason connected with his disability: Decision paragraph 56. The dismissal did not cause the personal injury to the Appellant. Save perhaps for "a month or two" it aggravated or prolonged the disability: Decision paragraph 53. However, the Employment Tribunal specifically rejected the Appellant's submissions that he had:
"in effect a personal injury claim for ongoing damage and ongoing disability in deterioration in his condition caused by the dismissal"
The Tribunal rejected that case because they accepted at the time of Dr Bailey's examination (on 6 June 2000) there was sufficient evidence for Dr Bailey to be satisfied that the Appellant did not have a "significant impairment" under Clause F of DSM - IV. They go on to say this:
"For the purposes of our enquiry into remedy, we are satisfied that the Applicant had been making good progress in the Christmas New Year period, had found new work (albeit we accept at a lower rate and less demanding in some ways than his former employment) but that our very conclusions based principally as they are on deduced effect of the counselling and medication, mean that during that period at any rate, the Applicant had got on top of his problems."
In these circumstances, we can well understand why the Employment Tribunal made no award for personal injury and we think there is no error of law here.
Appellant's ground 5
- The complaint here is that the Employment Tribunal erred in law in dismissing the Appellant's claims for reinstatement and re-engagement. In paragraph 71 of its Decision, the Tribunal conclude that the Appellant's application for re-engagement was:
"not a genuine desire on his part but is a further weapon fired in pursuit of his ongoing claims in these proceedings."
At paragraph 74 the Tribunal have concluded that:
"…… the Applicant did not, at that time, wish to be re-engaged and thereafter has only stated
a wish to be re-engaged for the purposes of these proceedings."
In our view, there is a short answer to this point. So far as re-engagement is concerned, this could not possibly happen. As a result of his disability, the Appellant had had his licence revoked, so he was unable to drive a bus. So far as reinstatement is concerned, the Employment Tribunal have, as we have noted, seen the Appellant give evidence twice. They were entitled to decide whether or not his expressed intention or desire for re-engagement was genuine. They did not accept his evidence on this point. They were fully entitled to do so.
- The Skeleton Argument at paragraph 31 also raises an alleged failure by the Employment Tribunal to consider the Appellant's case in the context of medical retirement. They argued that the Appellant's contract of employment and sickness procedures provided that he was entitled to be kept on by the Respondent on his existing terms in a job which he could carry out and/or take medical retirement. There is no reference to this matter in the Employment Tribunal's Decision at all. We have no notes of evidence. We have only some medical reports which were before the Employment Tribunal. We do not have any documents relating to the contract of employment or sickness procedures; furthermore, we are told by Mr Maccabe that this point was not raised at the Employment Tribunal. Even if it was, we are completely unable to deal with it on the material before us.
Appellant's ground 6
- This relates to disposal of the Appellant's appeal. For the reasons we have given, we find no error of law in any of the grounds of appeal raised by the Appellant, and that appeal is dismissed.
- We now turn to the Respondent's reply to the Appellant's grounds of appeal. We mean no disrespect to Mr Maccabe, but it has not been necessary for us to refer to his submissions in respect of the Appellant's grounds of appeal. For the reasons we have given above, we have dismissed each of them. We turn separately to the Respondent's four grounds of appeal.
Respondent's ground 1
- Mr Maccabe argued that as this Tribunal (the Milton Tribunal) had decided that the Appellant was dismissed because of his disability, that fatally undermined the unfair dismissal finding of the previous Tribunal (the second Booth Tribunal) which decided on 9 October 2000 that the Appellant had been dismissed for capability but that the dismissal was unfair because the Respondent should have looked for suitable alternative employment as a conductor having regard to the length of the notice period and the number of vacancies that would have come up in that time. The effect of the Milton Decision is that the Appellant could not have been engaged as a conductor during this period: Decision paragraph 68. In the circumstances, Mr Maccabe argued that we should now extend time to allow an appeal against the second Booth Tribunal Decision to be heard. We reject that submission. The forty two day time limit falls to the Employment Appeal Tribunal to be strictly enforced. Particular attention will be paid as to whether any good excuse for the delay has been shown. In the guidance contained in the decisions of the Employment Appeal Tribunal and the Court of Appeal as summarised in United Arab Emirates -v- Abdelghafar [1995] ICR 65 and Aziz -v- Bethnal Green City Challenge Ltd [2000] IRLR 111. See also the Employment Appeal Tribunal Practice Direction paragraph 3. What is clear is that there was no appeal by the Respondent against the Decision of the second Booth Tribunal that the Appellant had been unfairly dismissed. In our view, the fact that another Employment Tribunal (the Milton Tribunal) has reached a decision contrary to that of another Tribunal (the first Booth Tribunal) and decided that the Appellant was disabled in law and could not therefore be re-engaged as a conductor is not a sufficient justification for permitting an appeal out of time some eighteen months later. It was always open to the Respondent to appeal the second Booth Decision but it chose not to do so. Whether it will make any difference in respect of the amount of compensation payable to the Appellant is a moot point in any event.
Respondent's ground 2
- The second ground of appeal is that because the Appellant could not lawfully perform his job as a driver because his PSV licence had been revoked by the DVLC (because of his disability) his dismissal was justified under section 5(1) of the Disability Discrimination Act 1995. Reference was also made to paragraph 6.21 of the Code of Practice on Disability Discrimination (1996). This point was not argued before the Employment Tribunal and we are therefore not prepared to countenance it here. No reason was given as to why it was not raised below.
Respondent's ground 3
- Mr Maccabe then argued that as the Appellant could not, on the Milton Tribunal's findings of fact, be reinstated as a driver or re-engaged as a conductor, it must be an error of law to award him compensation on the basis that he would have continued as one or the other. He said that is the only logical inference from paragraphs 80 -81 of the Decision. The Tribunal said this:
"80 We were dismayed when we resumed to continue our deliberations in Chambers to find that there was such a substantial disagreement between the written submissions on each side as to the appropriate figures to provide the basis for the compensatory award. We had had very little oral evidence on either side and did not believe that we have been appraised by the representatives on each side of the quite significant differences of fact and calculation about what were the appropriate pay scales and rates of increment over the period or arguable periods of loss. We also record that late in the Applicant's solicitor's submissions an issue was raised as to whether the Applicant would have remained (if employed as a Conductor) at his old Driver's wage and, if so, for a period of time or what?
81 In our Chambers deliberations we simply came to the conclusion that we had insufficient oral or clear written evidence to reach a conclusion on what was the appropriate weekly figure to calculate the loss of earnings and with considerable regret we find that we must adjourn that question. We hope and believe that it ought to be capable of resolution by discussion and negotiation between the parties in the light of broad conclusions in these reasons."
- It does appear here that this Tribunal was approaching the question of compensatory loss on the basis that there was a differential between what the Appellant would have earned had he remained in the Respondent's employment and his subsequent employment at the Athanaeum Club. However, as the Employment Tribunal had specifically found as a fact that the Appellant could not continue as a driver because he no longer had a PSV licence, as it had been revoked by the DVLA (Decision paragraph 58) and that he could not do the job of a conductor because of his disability (paragraph 58) it is not clear at all from the Tribunal's reasoning what job the Appellant could do, had he continued in employment with the Respondent. For there to be a differential there have to be two points of comparison. Normally this is between the salary in the old job and the (lower) salary in the new job. That situation simply does not exist here. In our view, the Employment Tribunal are in error in paragraphs 80-81 of its Decision. However, as the case has to go back to a remedies hearing at the Employment Tribunal we are content to direct that the Employment Tribunal reconsider its Decision in paragraphs 80-81 of its Decision in the light of this part of the judgment.
Respondent's ground 4
- Finally, Mr Maccabe argued that the award of £5000 for injury to feelings was much too high and he relied on the judgment of Mummery LJ in Vento, referred to above. Mr Maccabe helpfully sets out his arguments at pages 5 - 9 of his Skeleton Argument. We have taken them into account. However, we are not re-litigating this matter. An appeal to this Appeal Tribunal arises only if there is an error of law. In the context of compensation, that means that the award is either far too high or far too low. For the reasons we have earlier given, dealing with the Appellant's submissions on this point, we are of the view that the figure of £5000 was not plucked out of the air, but was a figure which this Employment Tribunal could reach, having heard all of the evidence over four days, and having seen the Appellant give evidence twice. There is no error of law here.
Conclusion
- For these reasons, save in respect of the matter relating to the proper assessment of a compensatory award for loss of earnings, which will be remitted to the remedies hearing of the Employment Tribunal, the Respondent's appeal and cross-appeal is dismissed.
