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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Beckford v London Borough of Southwark (Disability Discrimination) [2015] UKEAT 0210_14_2711 (27 November 2015) URL: https://www.bailii.org/uk/cases/UKEAT/2015/0210_14_2711.html Cite as: [2015] UKEAT 0210_14_2711, [2016] IRLR 178, [2016] ICR D1, [2015] UKEAT 210_14_2711 |
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EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY
SQUARE,
LONDON
EC4Y 8AE
At the Tribunal
Before
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
(SITTING ALONE)
MR
D
BECKFORD
APPELLANT
LONDON
style='letter-spacing:-.15pt'>
BOROUGH
OF
SOUTHWARK
RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEAL & CROSS-APPEAL
APPEARANCES
|
No appearance or representation by or on behalf of the Appellant |
|
|
(of Counsel) Instructed by:
PO Box 64529 Tooley Street SE1P 5LX
|
SUMMARY
DISABILITY DISCRIMINATION
DISABILITY DISCRIMINATION - Compensation
The Employment Tribunal held unfairly dismissed for capability because the Respondent had not considered suitable alternative employment by asking what the Claimant could do if reasonable adjustments were first made to a possible alternative post. Appeal by the Claimant on this ground rejected - (a) the Employment Tribunal had dealt with the point sufficiently, and (b) in any event it had not been argued as such.
A cross-appeal on the ground that the Employment Tribunal was
wrong to uplift damages for injury to feelings by 10% (in accordance with Simmons
v
Castle) was dismissed. Doubt was expressed as to the correctness of De
Souza
v
Vinci
Construction UK Limited UKEAT/ 0328/14/DXA.
THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
1.
This is an appeal and a cross-appeal, both of which arise out of a Remedies
Decision made by an Employment Tribunal at
London
(South) (Employment Judge
Elliott, Ms Williams and Ms Campbell) for Reasons given on 14 February 2014. I
shall call this the Remedy Judgment. There were other Judgments of relevance.
The first of those was the Liability Judgment, as I shall call it, of 27 November
2013 made by the same Tribunal.
The Facts
2.
The underlying facts were that the Claimant is dyslexic. He had been
employed in the Early Engagement Team as a social worker by the defendant
borough.
After satisfactorily discharging his duties for some years, there was
a change of structure in the
borough.
In consequence, he was now employed in
the Young Offenders Service. Here he struggled to cope. The Tribunal found
that he was not capable of performing the duties of his post in that service.
3.
He complained of a number of matters. The Tribunal held that his
complaint of unfair dismissal and one of disability discrimination consisting
of the failure to make reasonable adjustments, as well as a claim for
victimisation,
should succeed but all his other claims had to be dismissed.
4. The basis upon which the Tribunal found in his favour was sufficiently summarised in its conclusions in the Liability Judgment beginning at paragraph 129:
“129. In summary we find that the claim for unfair dismissal succeeds because of the failure to consider whether there was any suitable alternative employment for the Claimant.
130. The claim for disability discrimination succeeds in
relation to the duty to make reasonable adjustments in relation to the
dismissal. This is because there was no consideration of whether the Claimant
could be transferred to fill an existing
vacancy
across the organisation or
whether he could be assigned to a different place of work. The claim in
relation to the other reasonable adjustments contended for by the Claimant
fails for the reasons given above.
131. The claim for harassment fails. …
132. The claim for
victimisation
succeeds as the Respondent
has not explained why they failed to reply to the Claimant’s emails concerning
the resolution of his grievance, in which he made a complaint of disability
discrimination.”
5.
Two comments. First, the failure to provide suitable alternative
employment was a conclusion the Tribunal reached in part because it thought
that a
very
large employer, such as the
borough,
would have had some
alternative work which the Claimant could have done, in particular noting that
he had managed for some years before he started work in the Young Offenders
Service. Second, the claim in respect of failure to make reasonable
adjustments succeeded not upon the basis that there was actually an adjustment
which might be made, but which was not made, but because there was no
consideration of it. There has been no appeal against that finding by the
Respondent. However, it is worth noting that this is not a conclusion that
there was some reasonable adjustment which could have been made which would
have alleviated the effects of his dyslexia.
6.
The Remedies Hearing proceeded upon the basis that the Claimant should
be compensated for unfair dismissal by a basic award and a compensatory award
upon the footing that he had not failed to mitigate his loss up to the date of
the hearing before the Tribunal. The
borough
had conceded that. In addition,
there was a loss of statutory rights and a pension loss in a four-figure sum.
All of those sums were to be reduced because of the likelihood of the
Respondent having been unable to find any suitable alternative employment for
the Claimant and, therefore, dismissing him. Though a 90% deduction was contended
for, the Tribunal, in the end, decided on 75%.
7.
As to the award in respect of the effects of the discrimination, the
Tribunal awarded £4,000 for injury to feelings, which it increased by £400 “under
Simmons
v
Castle” [2012] EWCA Civ 1288. At the time the Tribunal
made that decision, there had not been the extensive canvassing on appeal
before this Tribunal of what has become known as the “Simmons
v
Castle
point”.
8. The Claimant asked for a reconsideration on a number of grounds. The Tribunal considered those and confirmed its original findings.
9. He appealed. A number of hearings followed, in one of which HHJ Serota dismissed every ground of appeal. Judge Serota accepted an invitation to reconsider that decision. He was persuaded that he might have dismissed one ground a little too readily. That was the first ground in the Notice of Appeal. It was, as follows:
“The Employment Tribunal erred in law in failing to have regards to reengagement in considering the Claimant’s disability in respect of points 25 - 32 of the Reserved Judgment on Remedies dated 14th February2014, in relation to the Employment Rights Act 1996, Sec 98 General, subsection F2(3), F3(4).”
It then set out section 98, subsections 1 and 2, together with the notes, which derive from a well known textbook, labelled “F2” and “F3”.
10. I have understood this ground to be that the Tribunal erred in failing to have regard to the Claimant’s disability in considering re-engagement. It is his contention, as Judge Serota identified it, that when he asked for but was refused re-engagement the Tribunal did not ask, as it might have done, whether a reasonable adjustment might be made to a possible post such as would have enabled the Claimant to perform it, so that he could be re-engaged in that post. Although he has labelled the Remedy “reinstatement”, what he had in mind was plainly re-engagement. Section 115(1) of the Employment Rights Act 1996 provides:
“(1) An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer … in employment comparable to that from which he was dismissed or other suitable employment.”
11. Such an order is to be considered in accordance with the process set out in section 116, headed “Choice of order and its terms”. It reads:
“(1) In exercising its discretion under section 113 [that is the discretion to make an order for reinstatement or reengagement] the tribunal shall first consider whether to make an order for reinstatement …
(2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.
(3) In so doing the tribunal shall take into account -
(a) any wish expressed by the complainant as to the nature of the order to be made,
(b) whether it is practicable for the employer … to comply with an order for re-engagement, and
(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.”
12. The Tribunal had considered that the Claimant had difficulty in arriving for work or appointments on time. It was in large part that which had resulted in the capability hearing, which resulted in his dismissal (see the Liability Decision). There was no suggestion in any of the papers which I have seen that the Claimant was arguing before the Tribunal that his difficulty in timekeeping, and therefore difficulty making meetings with members of the public in a public-facing role were an effect of his condition of dyslexia. He has produced such material for consideration on appeal but there is no trace of it having been advanced before the Tribunal.
13.
Mr
Beckford
is not present to advance his appeal today. There should be
no criticism of him for this. He is unable to attend - it is unnecessary for
me to set out the reasons, which he has explained to this Tribunal - but he has
invited this Tribunal to proceed upon the basis of the written material, which
it has. I have considered all that he has written. I will not refer to all of
it. He should not think that because I have failed to do so, I have omitted it
or have not considered it.
14. Miss Platt, who did appear below, whose straightforwardness and frankness was lauded by Judge Serota during his Judgment in the Preliminary Hearing (and I can well see why, given her submissions before me today) tells me that the matter was not raised before the Employment Tribunal. It was not advanced on reconsideration either that the disability had this effect, or that when the employer came to consider whether there was suitable alternative employment, it should have had to factor in whether any employment which appeared on the face of it unsuitable could be made suitable by a reasonable adjustment.
15.
She fully accepts the principles which Underhill J set out in the case
of Great Ormond Street Hospital for Children NHS Trust
v
Patel
UKEAT/0085/07/LA, a case which her own researches has produced. That provides,
in terms which might be thought to favour the point made on the appeal, if it
had been raised by the Claimant, first, that practicability was to be assessed
as at the date that any order would take effect - those last three words might
be important - (paragraph 18) - and at paragraph 20 that the Appeal Tribunal
could see no reason why the Tribunal should not have to take the question of
reasonable adjustment into account in considering practicability, commenting in
the last four lines of paragraph 20:
“20. … if it would be impracticable to offer the employee the selfsame job that they had previously had, it might nevertheless be practicable to offer them the modified job which they would have been entitled to be offered if the employment had continued.”
16.
At paragraph 23 the Tribunal’s
view
was that:
“23. … in the case of a disabled employee the s.4 A duty [that is the duty arising under the Disability Discrimination Act, which was the statute in force at the time] must be brought into account …”
Commenting that:
“… there is a big difference between requiring a Trust to
make a temporary adjustment in order to accommodate a
valued
employee who it is
hoped will eventually be fit to resume to duty and requiring it to create what
on all the evidence was an anomalous role on a permanent basis. …”
17.
Much of the reasoning is that specific to the facts of the case itself,
but I would accept that particularly in a jurisdiction which seeks to remove
barriers to access to employment for those who suffer from many and
various
disabilities, the question of suitable alternative employment arising on a
dismissal, albeit for incapability, should take account in general of whether a
reasonable adjustment can be made.
18. The Tribunal in dealing with the question of re-engagement in the light of the statutory provisions that I have set out, though unaware of the Great Ormond Street case which had not been put before it, said this:
“25. In relation to the question of reengagement, the
Respondent produced a list of 8 current job
vacancies.
The Claimant said he
was not interested in any which were part time and we informed the parties that
we would not make an order for reengagement in a more senior role. This left
only 2 roles for consideration. These were a Sustain Officer and a Contracts
and Service Officer (Sports). …”
19.
The Tribunal went on after that to examine those two roles. It
concluded that there were essential criteria which any applicant for those
posts had to meet. The Claimant acknowledged he did not meet them. It follows
that as at the date of the hearing, on evidence which the Tribunal appeared to
accept, there was no
vacancy
within the
London
Borough
of
Southwark
for the
Claimant to occupy for which he was suitable. The lack of suitability referred
to had no relation to his disability.
20.
That, it seems to me, still left open to some extent the basis upon
which the Tribunal had, in the first place, thought that there may have been a
failure to consider suitable alternative employment. That was that the
borough
was so large and employed so many staff that, in effect, there must be some job
somewhere which it could offer him. As to that, the words which followed the
findings I have just referred to at paragraph 32 may be relevant. The Tribunal
said:
“32. … We have found (paragraph 83 of the liability judgment) that the Claimant was not capable of doing the job for which he was employed by the Respondent. We accepted the Respondent’s evidence that the Claimant’s difficulties in arriving for work or appointments on time created a real difficulty in placing him in a role which required punctuality and/or the meeting of deadlines. This is particularly so in roles where meetings with service users was concerned. We find that it is not practicable for the Respondent to re-engage the Claimant in a role that is as favourable as the post which he held prior to his dismissal and the application for re-engagement fails.”
21.
That paragraph is open to the criticism that the Tribunal did not
expressly deal with any impact which the duty to make reasonable adjustments
might have in reference to a post which would otherwise be suitable for the
Claimant. Miss Platt frankly accepts that it did not do so in terms, but she
says that is the thrust of that which the Tribunal was saying.
Very
few of the
jobs of a council would not involve meetings with service users so far as
people in a social work capacity were concerned. There had been no suggestion
at this stage that the failure to arrive for work or make appointments on time
was a consequence of the Claimant’s disability. It was for that reason that
the Tribunal excluded him. The Tribunal at paragraph 32 explored matters which
plainly went beyond a simple examination of the eight posts which might have
been available, none of which were suitable. It was looking more generally at
the Claimant’s suitability for other posts which might, given the size of the
Respondent, have been available. I accept that that is the context in which
these words are spoken.
22.
The conclusion is unexceptional. It does not in itself require a
particular examination of a reasonable adjustment especially in the absence of
any particular post being identified for consideration. The Claimant himself
did not advance any. It seems to me, therefore, that HHJ Serota at paragraph 6
of his Judgment on reconsideration was right to say that the argument on appeal
appeared to have taken on a different complexion to that which was advanced
before the Employment Tribunal. It is difficult, in my
view,
for many who are
litigating for themselves to articulate their real complaint within an
appropriate legal framework. That does not, however, prevent them articulating
what they are really complaining about. The Claimant was an educated man, as
is obvious from the job he did and the way he writes. He was capable of
providing lengthy submissions and did so. Miss Platt points out that there is
no suggestion in those submissions at any stage prior to the appeal itself that
the disability may have affected what he was really capable of in a re-engaged
role. The argument simply was not put.
23.
It seems to me, therefore, that given there was an absence of focused
argument about this, although it was open to the Claimant to make the
complaint, had he wished to do so, in sufficient terms so as to raise it. The
way in which the Tribunal dealt with the matter between paragraphs 25 and 32
was thus a sufficient exercise of its duties and was a sufficient explanation
for its decision. It is not an error of law to fail to deal with an argument
which is not raised. There was no argument directed along the lines of the
appeal point as, indeed, HHJ Serota hinted. The finding is a finding of fact.
It was not perverse on the material before the Tribunal, nor, having taken into
account everything which was said at the time, do I think it can be said to
have been reached in absence of considering points being raised by the
Claimant. Though in my
view
a Tribunal would be well-advised in dealing with
questions of suitable alternative employment, for those whose disability may in
part be responsible for a lack of capability in one job, to consider whether
reasonable adjustments might make it possible to work in an alternative post.
In this particular case it did not, in my
view,
have to do so and so did not
make an error of law. I, therefore, dismiss the appeal.
The Cross-Appeal
24.
The cross-appeal argues that the Tribunal should not have uplifted the
damages award for injury to feelings by 10% of £4,000, namely £400. Though the
sum is small, the principle is important. It may at the moment be subject to
an appeal in the case of Pereira De Souza
v
Vinci
Construction UK Limited
UKEAT/0328/14/DXA (20 March 2015), a Judgment of HHJ Serota. The hearing of
the appeal is currently scheduled for 7 December.
25.
In his Judgment, HHJ Serota thought there should be no uplift. In doing
so, he departed from a Judgment to opposite effect which had been made by
Simler J in the case of Sash Windows Workshop
v
King [2015] IRLR 348. An appeal in that case is
due, according to the Court of Appeal website, to be heard in February next
year. The two cases examine the question of whether the principles expressed
in, and the decision of, Simmons
v
Castle should apply in the
Employment Tribunal. Miss Platt’s argument is heavily based upon the decision
of HHJ Serota being correct. Since HHJ Serota’s decision is the latest appeal
at this level, and since it considered earlier decisions, it is a decision from
which I would depart only with the greatest of hesitation. I am not bound by
it, but I should (particularly in such circumstances) follow it unless
persuaded it is in error.
26.
What has ultimately persuaded me to express my
views
on this and add, I
suspect entirely unnecessarily to “the learning” given the forthcoming Court of
Appeal hearing, is that I have to make a decision on the present case. If I
were on the basis of comity to accept the authority of De Souza
whilst thinking it was probably in error, without necessarily being convinced
that that is so, then there would be little prospect of this Appellant pursuing
an appeal for £400 to the Court of Appeal. I, therefore, concluded that if
that is my
view,
I should express it and I should hold against the cross-appeal
and dismiss it, but provide that that decision would be open for
reconsideration, or review as it is called in this court, until 21 days
following any decision of the Court of Appeal. It seems to be far more likely
that in those circumstances whatever the Court of Appeal holds will actually
apply between the parties in the present circumstances of this case.
27.
That then leads me to the question whether I do take a
view
which is in
line with that expressed by Simler J but not that expressed by HHJ Serota. I
do. I confess that I do so without being so convinced that I am right that I
would, in any event, have adopted this approach had it not been for the
practical considerations expressed in the last paragraph above. However, for
what it is worth, I shall express my
views.
28. First, the starting point in any statutory jurisdiction, as this is, is the statute. The Equality Act 2010 provides, in similar terms to its predecessors, for the enforcement of the breaches to which it relates in Part 9. In chapter 3 of that Part, the Act provides at section 124(6):
“(6) The amount of compensation which may be awarded under subsection (2)(b) [that is the subsection which permits a Tribunal to order the Respondent to pay compensation to the complainant] corresponds to the amount which could be awarded by the county court or the sheriff under section 119.”
Section 119 relates to damages. It provides at 119(4):
“(4) An award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis).”
Therefore, it is a starting point accepted by Miss Platt that the same approach in general terms should be taken to an award of damages made by a Tribunal as it would be in the county court.
29.
In Simmons
v
Castle [2012] EWCA Civ 1039 the Lord Chief
Justice of England and Wales gave the judgment of the whole court, consisting
also of the Master of the Rolls and the
Vice
President of the Court of Appeal.
At paragraph 2 he described how the court would take an appropriate opportunity
to “announce an increase in general damages in most tort actions with effect
from 1 April 2013”. He added at paragraph 14:
“14. Secondly, the increase in general damages we are laying
down here extends to tort claims other than personal injury actions. We cannot
see any good reason why the observations and reasoning in Heil [that
being a reference to Heil
v
Rankin [2000] EWCA Civ 84, [2001] QB 272],
and in the cases cited by Lord Woolf MR in his judgment in that case, do not
apply equally to general damages in all tort cases.”
30. At paragraph 20 the court took the opportunity to declare that:
“20. … with effect from 1 April 2013, the proper level of general damages for (i) pain, suffering and loss of amenity in respect of personal injury, (ii) nuisance, (iii) defamation and (iv) all other torts which cause suffering, inconvenience or distress to individuals, will be 10% higher than previously. …”
These are general words covering all tort claims, whether or not they were in respect of personal injury, the area most affected by the CFA and ATE recovery scheme. It is accepted by Miss Platt that a claim for damages for discrimination is a claim under a statutory tort. On the face of it, therefore, the reasoning applies to such a claim. Moreover, it is not expressly limited to claims which before 1 April 2013 would have been funded by a CFA.
31.
In his consideration, which is careful, and reserved as this decision is
not, HHJ Serota did not refer directly to the statute as I have done, nor did
he cite specifically these expressions of general applicability which the Court
of Appeal had set out. Those were the matters which, as it seems to me,
persuaded Simler J in Sash Window Workshop
v
King that the 10%
uplift, for which Simmons
v
Castle provided should apply in
Employment Tribunals. It seems to me that HHJ Serota may well be right that
the argument addressed to her was different from the argument addressed to him,
and that the only other authority before then in the Appeal Tribunal - that of Cadogan
Hotels
v
Ozog UKEAT/0001/14/DM - was one in which HHJ Eady did not
address the point with any reasoning, though instinctively taking the same
view
as Simler J.
32.
To complete the picture, Slade J in the case of Chawla
v
Hewlett Packard
(25 February 2015) UKEAT/0280/13/BA and UKEAT/0427/13/BA, said in what is
probably an obiter but nonetheless plainly considered
view
that she preferred
the
view
expressed by HHJ Serota to that expressed by Simler J.
33. The basis for the approach which HHJ Serota took was that the rationale, as he put it, for the increase of 10% across the board was because successful Claimants had until the implementation of Sir Rupert Jackson’s report had a right to have refunded to them the amount of any success fee they would have to pay in consequence of their success and any premium in respect of any after-the-event insurance contract which they had entered into in order to bring the claim. Those reasons did not apply to the Employment Tribunal.
34. Miss Platt takes eight points from De Souza. She formulated these after I rose to enable her to deal with considerations which, it seemed to me, might apply. She had time to do so and to respond helpfully, and I am grateful to her for doing so. First, Sir Rupert Jackson made no mention of Employment Tribunals being affected by his report. Indeed, her third submission (to the same effect) was that he expressly said that any proposed reform of Tribunals fell outside his terms of reference (see paragraph 52 of De Souza). Second, in paragraph 51 of De Souza the Judge said:
“51. It is clear to me from reading the Judgment in Simmons
v
Castle and the other documents to which I have referred that the 10%
uplift in damages was to compensate those Claimants who had lost those rights
and now had to bear the costs themselves. Sir Rupert Jackson was reporting in
relation to “civil proceedings”. Proceedings in Tribunals are not properly
classified as “civil proceedings”, and litigants in Employment Tribunals have
never had any right to recover ATE insurance premiums nor success fees. So far
as I am aware the provision of ATE insurance has never been a requirement in
litigation in the Employment Tribunal (although it may have been available) and
has never been regarded as an element of costs; similarly with success fees.”
35.
Fourth, she argued that Sir Rupert Jackson was expressly considering the
culture of the courts (see paragraph 53 of De Souza as a
reference): the regime of costs-shifting was that which he was considering.
She argued, fifth, that the award for injury to feelings is anomalous. It
results in an award of damages which could not be given by a county or sheriff
court, where it is accepted that injury to feelings as such (distress, anxiety,
inconvenience, or upset not accompanying a physical or mental injury) does not
result on its own in any award of compensation. That is why the Equality Act
in its present form permits it for Employment Tribunals. Such damages could
not be awarded unless it did. But, because it is anomalous the employment courts
(see the cases of
Vento
v
Chief Constable of West Yorkshire Police [2003] ICR 318 and Da’Bell
v
National Society for the Prevention of Cruelty To
Children [2010] IRLR 19) have set out the ranges within which such
awards of their own nature may form and have updated them at least once.
36.
Bullimore
v
Pothecary Witham Weld Solicitors & Anor [2011] IRLR 18 - a decision of Underhill J as President, which in my
view
should be
more generally honoured in practice than it is - is to the effect that
Tribunals could up-rate those awards in line with inflation but, observes Miss Platt,
that has not generally happened and awards are given by Tribunals within the
Vento
and Da’Bell guidelines as a matter of general practice, and I
think she is right in that. Accordingly, she submitted that the approach is
one specific to the Tribunals. It, therefore, has no real comparability with
personal injury damages awarded in civil courts, and being tailor-made to the
Tribunal should be unaffected by any uplift applied to other awards of a
different sort, heard under a different costs regime, before a different forum.
37.
Consistent with that argument, however, she accepted that in those cases
in which discrimination causes an injury which goes beyond mere distress and
inconvenience, so as to create a recognised psychiatric condition which would
be compensable in the civil courts, or physical manifestations of it which
equally would be compensable, any award for those injuries should, in the light
of Simmons
v
Castle be up-rated by 10%. This gives rise to the
inconvenience of separating out those aspects which are in themselves purely injured
feelings and upset and those which, in the light of this submission, have to reflect
the awards otherwise made in the county court. The practical consequences of
this are undesirable.
38.
The expression that she drew attention to was that the award should “broadly”
be comparable to those in civil courts and sheriff courts. Her submission here
was that to apply a 10% uplift was not to take the award, so uplifted, outside
the range of that which was broadly comparable, but that the
very
sense of
breadth envisages a latitude around a central figure within which a 10%
adjustment either way would be acceptable.
39.
Seventh, she argued that although it might be said that an award for
discrimination in respect of personal injury should be broadly comparable to
that awarded in the civil courts as, indeed, she had submitted, that did not
apply in the present case where the award for Mr
Beckford
was purely in respect
of injury to feelings and, therefore, was purely something which could be
awarded in the Employment Tribunals.
40. Next she argued that there were many more litigants in person were likely to be found in Tribunals than in civil courts. I shall come back to this argument because it ties with a point which I put to her for her observations and submissions.
41.
Lastly, she referred to the support which De Souza had
from the decision in Chawla, which, I accept, should not be
ignored being as it was a considered
view
of Slade J.
Discussion and Conclusions
42.
In my
view
the starting point is the statute. That requires, in effect,
awards to be comparable in the Tribunals to those given in the county court.
Though the comparability may be broad, I do not see that that comparability
allows for one set of awards to be consistently 10% elevated above the other. That
is not “broadly comparable” but “generally 10% different”. Moreover, I think
that this statute reflects an important aspect of judicial policy, which is
that awards made in the Tribunals should broadly be coherent with those made in
the civil courts. It does not reflect well on a system of justice that the
same injury, as it may seem to a member of the public, should be compensated in
one regime at a level lower than it would in another, particularly given that
in discrimination cases there is a general principle of effectiveness deriving
from European authority which requires the award to be broadly the same.
43.
Next the expressions in Simmons are, in my
view,
deliberately made to be applied across the board. They are not confined simply
to those cases in which there would have been a CFA agreement or ATE agreement
before. If they were so confined then a consequence logically might be that
litigants in person who would have litigated in person in any event before the
courts, if that could be established, should not be entitled to the 10% whereas
if they had employed a solicitor, they should be. This distinction seems to me
one of the
very
obvious practical consequences of reading the Court of Appeal
Judgment in any other way than appears at face
value.
There is a statutory
exception for mesothelioma cases which is provided for by the LASPO Act, but
that is by way of specific exception for a specific class of case. Its tenor
is to support the
view
that the reason for the uplift is because of the incoming
prohibition upon the then existing system of funding, and it meets the need for
exceptional treatment of one class of case at least for a transitional period.
44.
The central argument, therefore, seems to me to rest upon whether the
reason underlying the change of approach in the Court of Appeal to be applied
across the board for all civil courts is such that it cannot and should not
apply in Employment Tribunals. Here there is a difference which is at the
heart of it. In civil courts there is in general a cost shifting regime. That
does not apply in the Employment Tribunals. Were it not for this it would have
been unnecessary to insure against having to pay the other party’s costs, and
thereby incur a premium for ATE insurance. The introduction of the
recoverability of this premium and the additional costs payable under a CFA agreement
was provided for by the government of the day - contrary to what had been its
initial thoughts - in response to
views
put forward at least by the Executive
Committee of the Personal Injury Bar Association at the time, which argued that
the principle of full and fair compensation for an injury would be affected if,
out of an award of damages, a Claimant had to pay a sum in order to have the
ability to pursue a claim. Unless they not only succeeded but also obtained
repayment from the Defendant of the uplift on costs and the amount of any
premium discharged as a necessary requirement to enable them to fight their
claims, they would inevitably receive less than the full compensation for the
injury to which the defendant’s breach of duty had exposed them.
45.
In the Employment Tribunal there has never been cost shifting. Arguably
now that may apply in respect of fees, but that is a
very
limited exception. A
litigant in the Employment Tribunal is thus in a
very
similar position to that
in which a litigant in the civil courts now is. If such litigants wish to
represent themselves they are free to do so. If they wish to engage advocates
they must pay. The way in which cases are funded in the Employment Tribunal
has - and this is where I return to the eighth point which was made by Miss Platt
- more diversity than was the case in the county court. Part of that was
because it was and is open to a litigant to engage a lawyer on a contingency
fee basis. That is not lawful in the civil court. It represents a percentage
of the damages being paid, if successful, in order to be able to bring the
claim. Litigants entering contingency fee agreements a person would never have
an expectation of full and fair compensation, since they could only ever
recover a percentage of that figure, and would hope that the compensation would
be sufficient to pay for the costs of bringing proceedings with assistance.
46. A second difference is that in the Tribunals anyone can be asked by a litigant to represent that litigant and that must be accepted by the Tribunal or Appeal Tribunal. That is a matter of discretion in the civil courts. Thus, the range of representatives habitually appearing before Employment Tribunals is broader, and their services may be cheaper than those legal services traditionally afforded by solicitors and counsel. Miss Platt argues that these differences are such that the costs of bringing claims in Tribunals were potentially less, and there was no need for the system of funding representation which was necessary in the civil courts, and which once it was removed exposed litigants in the civil courts to an expense which has no equivalent in Tribunals. It was helping to meet this sudden and additional expense caused to such litigants by the removal of the system which justified an uplift in damages.
47. I do not accept this argument, since it both assumes that litigants in an Employment Tribunal are to be given a 10% uplift they will be in a favourable position compared to those in the civil courts when it comes to funding their claims, and takes no account of the fact that before CFAs were ever introduced there was cost-shifting in the civil courts, just as there was not in Tribunals, and that legal aid may have been more freely available then for civil claims than for Tribunal claims, but that it was then that Parliament enacted the statutory predecessor to section 124(6) of the Equality Act 2010.
48.
In my
view,
the position of the litigant in the Employment Tribunal so
far as funding a claim is broadly similar now to that which applies in the
county court. That is because in neither case is there legal aid freely
available, in both cases arrangements may be made with a solicitor which will
have to be paid for out of the damages to be achieved, in each case there may
be other means of support which may be engaged. The existence of the regime by
which CFAs and after-the-event premiums were awarded was a consequence to the
earlier reduction in the availability of legal aid support for personal injury
and similar claims, which had never generally been available in the Tribunal
although there were some exceptions. Given the position as I see it, that financing
of litigation is broadly similar, though with the differences I have outlined,
I see no particular reason in principle why the level of damages should be
different. The 10% uplift, if it is applied to Tribunal cases, has to pay for
the costs of bringing the claim, or at least go towards them, in the same way
as it now does in respect of most tort claims in the civil courts. It makes
little sense that as the position of litigants before civil courts has come
closer to that of those in Tribunals (here, in respect of funding their cases)
there should be a separation between them when it comes to the levels of award
for torts causing “suffering inconvenience and distress” (quoting the words in Simmons
v
Castle).
49.
I think, therefore, that the analysis of HHJ Serota did not go deeply
enough into the reasons for the existence of the recoverability of the premium
and why it should be that the recoverability of that premium might justify an
increase in the damages, in a sense to give the litigant a larger pot whilst recognising
that he would get a smaller reward. It looked merely at the “quid pro quo” for
the removal of the recoverability of a CFA premium, which could apply only to
the civil courts and in the context of a costs-shifting regime, to hold (in
effect) that litigants in Tribunals would be unduly favoured if entitled to the
uplift, rather than examining whether the position of the two groups in respect
of funding their cases was now
virtually
identical, and nor did it consider
that Parliament must have known of the different funding regimes (before CFAs
were introduced, and to which in principle the system has returned, even if
legal aid is not now readily available) in Tribunals and courts and yet stated
that the awards in each should broadly be comparable.
50.
I do not consider that awards to “injury to feelings” are made under a
separate system. The logic of
Vento
was to assess such figures
on a basis that would broadly be comparable to awards in cases of tort in the
county and Sheriff courts. If such figures increase across the board in those
courts, so too should awards for injury to feelings in the Tribunal: and the
fact that the principle in Bullimore seems generally to be
ignored in practice does not mean the system is different - the principle, of
uplift in line with inflation, applies to both.
51.
It follows that I do not see the reasons in principle which appealed to
HHJ Serota as being as persuasive as he found. I regard myself as bound by
what I see as the general statement of principle in Simmons
v
Castle.
The statute applies, exactly as it provides. I see no compelling argument to
the opposite event and, for those reasons, for what it is worth, express my
views
consistent with those
views
expressed by Simler J.
52.
I, therefore, dismiss the cross-appeal but, recognising that the last
word will soon be spoken by others with a far greater access to all the
available arguments, as I have perhaps not had, and with the benefit of fuller
consideration, will permit an application for review of this Judgment to be
made within 21 days of the publication date of the Judgment of the Court of
Appeal in the forthcoming appeal of De Souza or, if for any
reason it does not deal with the Simmons
v
Castle point, that in Sash
Window Workshop
v King.