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Cite as: [2009] NIIT 9466_03IT, [2009] NIIT 9466_3IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 9466/03

CLAIMANT: Clifford David Wylie

RESPONDENT: RFD Ltd

DECISION ON REMEDIES

In an earlier decision (“the First Decision”) this tribunal has already found that the claimant was unfairly dismissed by the respondent. The unanimous decision of the tribunal is as follows. It is now ordered that the respondent shall pay to the claimant the sum of £53,500 as compensation in respect of that unfair dismissal.

Constitution of tribunal:

Chairman: Mr P Buggy

Members: Mr Hampton

Mr Welsh

Appearances:

The claimant was represented by Ms N Murnaghan, Barrister-at-Law, instructed by Con Lavery & Co Solicitors.

The respondent was represented by Ms S McCrory, of EL Consultancy Ltd.

REASONS

The claimant was employed by the respondent company, RFD Ltd, as a Production Engineer at its plant in Dunmurry, Belfast, from 22 August 1989 until September 2003. He was dismissed with effect from 22 September 2003. The respondent gave redundancy as the reason for the dismissal.

In these proceedings, the claimant complains of unfair dismissal. Compensation is the only remedy which he seeks in connection with that claim.

This case has been heard in two stages. At the conclusion of the first stage of the case, the tribunal issued a Decision which mainly dealt with liability issues. (Below we refer to that Decision as “the First Decision”).

That First Decision set out the following determinations:

“(A) The claimant was unfairly dismissed.

(B) The claimant did not fail to mitigate his loss during the period up to 18 April 2004.

(C) The dismissal was unfair because of some important defects in connection with the decision-making process which culminated in the claimant’s dismissal. If there had been no such defects, there is a 50% chance that the respondent could and would have fairly dismissed the claimant in September 2003 in any event.

(D) The following deductions must be made from any compensatory amount which would otherwise be payable to [the] claimant. These deductions must be made in the following order:

(i) There must be a deduction of £5,396 in respect of the payment in lieu which is made to the claimant.

(ii) The resulting balance must be reduced by 50% to reflect the chance that the claimant could and would have been fairly dismissed in any event.

(iii) The resulting balance must then be reduced by £3,900; that is the amount by which the claimant’s actual redundancy payment (the redundancy payment actually paid to him) exceeds the amount of any potential basic award”.

The present Decision should be read in conjunction with the First Decision.

The sources of evidence

On behalf of the claimant, we received oral testimony from a Consultant Psychiatrist, Dr Nigel Rodden, and from the claimant’s GP, Dr William McCandless.

The respondent had obtained a psychiatric report on the claimant, which was prepared by Dr Judith O’Neill, a Consultant Psychiatrist. At this hearing, the respondent did not rely on that report. However, since it had been made available to us, it clearly was evidence which we could take into account. Accordingly, we did so.

We also saw a bundle of documents, consisting of over 250 pages, along with some miscellaneous documents. We told the parties that we would only have regard to any particular document within the bundle if our attention was specifically drawn to that document.

The facts

We now set out findings of fact which are relevant to the questions which we have determined at this stage of the case:

Somatisation disorder has been authoritatively and accurately described in the following terms:

“The main features are multiple, recurrent, and frequently changing physical symptoms of at least two years’ duration. Most patients have a long and complicated history of contact with both primary and specialist medical care services, during which many negative investigations or fruitless exploratory operations may have been carried out. Symptoms may be referred to any part or system of the body. The course of the disorder is chronic and fluctuating, and is often associated with disruption of social, interpersonal and family behaviour. Short-lived (less than 2 years) and less striking symptom patterns should be classified under undifferentiated somatoform disorder…”.

We accepted, as being accurate and appropriate, the medical evidence of Dr Rodden. We also accepted the accuracy and appropriateness of the medical evidence of Dr McCandless.

Dr Rodden’s involvement in the care of the claimant began only relatively recently. Therefore, the focus of his medical evidence was on the period from 31 August 2006 onwards.

Dr McCandless had been caring for the claimant for many years. Accordingly, he was able to provide us with medical evidence in respect of the period from April 2004 until August 2006.

Dr Rodden was satisfied that the claimant had been suffering from somatisation disorder at least since August 2006. He was satisfied that, at least since that date, the claimant has been incapable of any work.

He was also sure that the claimant’s condition would probably not improve and that the claimant would, as a result of somatisation disorder, be incapable of any paid work at any time in the future.

Dr McCandless had been caring for the claimant during the period from April 2004 and he continues to be the claimant’s GP. During the period from April 2004 until September 2004, the claimant had complained of various physical ailments. Dr McCandless had provided medical certificates to cover much of that period. In all instances, his medical certificates had certified the claimant as being unfit for work because of the physical symptoms of which the claimant was complaining.

Now, with the benefit of hindsight, with the benefit of seeing the pattern of the varied “physical” ailments and with the benefit of Dr Rodden’s expert opinion, Dr McCandless is satisfied that, throughout the period from April 2004 until September 2006, the claimant was suffering from somatisation disorder and was, for that reason, unfit for work. We accept the accuracy of that diagnosis.

Somatisation disorder cannot be diagnosed until two pre-conditions are met:

There must be a history of at least two years of complaints of multiple and variable physical symptoms.

It must not be possible to explain, by any detectable physical disorders, the existence of those symptoms. (Thus, the diagnosis of somatisation disorder cannot be made until there has been an exhaustive series of “physical investigations of the symptoms).

That is the background against which we have accepted the accuracy of Dr McCandless’s diagnosis of the claimant’s condition in respect of the period from April 2004 to August 2006.

Dr Rodden told us that there were three causes of the claimant’s somatisation disorder. First, the claimant’s reaction to what he perceived as mistreatment during the course of his employment was a factor. Secondly, the claimant’s reaction to the dismissal, and to what he perceived to be the injustice of his dismissal, was a factor. Thirdly, the claimant was stressed or anxious because of the pending industrial tribunal proceedings.

Dr Rodden told us that, but for the dismissal, the claimant would probably be working now. He didn’t believe that, if the claimant was still working, his condition would have manifested itself at this time. As to whether the claimant’s condition would have manifested itself at any time in the future, (even if he had never been dismissed by the respondent company), it was impossible to say. According to Dr Rodden, the condition may never have manifested itself in those circumstances.

Dr Rodden told us that there was nothing in the claimant’s domestic life, that he was aware of, that would contribute to the causing of his condition. The claimant had worked extremely hard. He had got good grades at school, had got an engineering degree, had put a lot of effort into overcoming difficulties. The unfair dismissal had had an impact on his sense of self-worth.

Dr Rodden told us that somatisation disorder is notoriously difficult to treat. One of the features of the illness is that there is a lack of understanding, or insight, on the part of the patient.

At the invitation of Ms McCrory, Dr Rodden reviewed for us the various “physical” symptoms which the claimant had reported over several years and told us that he was satisfied that the great majority of those symptoms were manifestations of the claimant’s somatisation disorder. The claimant had been dismissed in 2003 and Dr Rodden noted what he considered to be a striking increase, from 2002 onwards, of the claimant’s GP and hospital referrals.

From April 2004 until November 2004, the claimant received incapacity benefit. Both parties in these proceedings accept that, throughout that period, the claimant was unfit for work. Because of the matters referred to at sub-paragraph (8) above, Dr McCandless was convinced now that the claimant had been suffering from somatisation disorder during that period.

Neither Dr McCandless nor Dr Rodden suggested that the claimant had never had any symptoms of any physical disorders during any relevant period. However, they told us that most of the symptoms with which he presented were manifestations of somatisation disorder.

Dr Rodden stressed that when the somatisation disorder symptoms become chronic, they generally do not resolve. In answer to your question as to whether the final outcome might have been different if the industrial tribunal proceedings had been resolved within (say) six months, Dr Rodden stated that the outcome “may well have been different”.

In the interests of readability, and in order to avoid duplication, we have set out some additional findings of fact elsewhere in this Decision.

The issues and the arguments

Three separate periods are significant in the context of these remedies issues:

The “First Period” is the period from the date of dismissal until 18 April 2004. The parties are agreed that the claimant was fit for work during that period. In the First Decision, we have already decided that he did not fail to mitigate his loss during the First Period.

The second period is the period from 19 April 2004 until 3 April 2009, which was the date of conclusion of the remedies hearing (“the Second Period”).

The third period is the indefinite period beginning on 4 April 2009; this is the period in respect of which “future loss” is claimed. (We refer to this period below as “the Third Period”).

We are satisfied that the claimant was unfit for work throughout the Second Period; and that he has been, and will continue to be, unfit for any work throughout the Third Period. The relevant issues which arise in that connection, both in respect of the Second Period and in respect of the Third Period, are as follows:

Is the financial loss which is the outcome of that unfitness a loss “in consequence of the dismissal …” which is attributable to action taken by the employer? In other words, what is the relevant causation requirement and is it met in the circumstances of this case?

Is foreseeability a precondition for responsibility in respect of the relevant loss and, if so, has that requirement been met in the circumstances of this case?

Should there be an apportionment of the “loss” sustained by the claimant, by reason of his unfitness, to reflect the multiplicity of causes of that unfitness?

Should the amount recoverable in respect of the “loss” be discounted to reflect any possibility that the claimant would have become medically unfit even if he had been kept in the employment of the respondent? If so, by how much?

Should incapacity benefit, received by the claimant, be taken into account in calculating the relevant loss (the loss, attributable to action taken by the employer sustained by the claimant, in consequence of the dismissal)? If so, to what extent should this be done?

On causation, the arguments on behalf of the claimant can be summarised as follows. The dismissal was the reason or the predominant cause of the somatisation disorder. The respondent’s arguments on that point can be summarised as follows. First, the claimant’s reaction to any perceived pre-dismissal work problems were not within the scope of the remedy provided by Article 157 of the Employment Rights (Northern Ireland) Order 1996 (“the Order”). Secondly, the claimant’s reaction to the industrial tribunal proceedings is not a “natural and direct” result of the unfairness of the dismissal.

We drew the attention of the parties to the case of Massey v UNIFI [2008] ICR 62 and Dench v Flynn & Partners [1998] IRLR 653.

The arguments in relation to the foreseeability issue can be summarised as follows. On the authority of Massey, Ms Murnaghan argued that the compensation provisions in respect of unfair dismissal (based, as they are, on the concept of what is “just and equitable”) contain no foreseeability requirement. The foreseeability arguments on behalf of the respondent can be summarised as follows. First, the principles emerging from Massey were based very much on the particular factual context of Massey, which is very different from the factual context of this case. Secondly, what is “just and equitable” is at the heart of the process of assessment of compensation in the context of unfair dismissal. It could not be right to make an employer responsible for consequences which he did not foresee, and could not be expected to foresee.

On the question of apportionment (to reflect the different causes of the somatisation disorder), the arguments of the parties can be summarised as follows. First, Ms McCrory argued that there should be apportionment both in respect of past loss and in respect of future loss. In that context, she relied upon the case of Dignity Funerals Ltd (see below). Secondly, because of the “just and equitable” requirement, the respondent could not be expected to pay for the consequences of matters which were outside its control. Thirdly, the relevant comments in Dickins v O2 PLC (see below) were obiter and the relevant conclusions in Massey reflected the specific factual and legal contexts of the Massey case. For the claimant, Ms Murnaghan argued against apportionment for the following reasons. First, Seafield Holdings Ltd (see below) is authority for the proposition that, in an unfair dismissal case, you do not apportion (to reflect differing causes of loss) in respect of past loss, provided that the “but for” test is met. Secondly, somatisation disorder was an indivisible injury (in the sense in which that term is used in Dickins and Massey) and therefore apportionment is not appropriate.

The parties were content to leave it to the tribunal to decide whether there should be any reduction (in respect of the amount of the relevant “loss”) to account for the receipt of incapacity benefits and, if so, the extent of that deduction.

In the interests of readability, and in order to avoid duplication, we have referred to additional submissions elsewhere in this Decision.

The law

First, we must bear in mind that unfair dismissal legislation provides compensation only in respect of pecuniary losses; see Dunnachie v Kingston upon Hull City Council [2004] ICR 1052, especially at paragraph 22 of the judgment.

In Northern Ireland, compensatory awards are made pursuant to Article 157 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”), which is the equivalent of Section 123 of the Employment Rights Act 1996 (which applies in Great Britain). According to Article 157(1):

“… the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the [claimant] in consequence of the dismissal in so far as that loss is attributable to action taken by the employer”.

In Dench v Flynn & Partners [1998] IRLR 653 (paragraphs 27 and 28), Sir Christopher Staughton explained the implications of Section 123 of the Employment Rights Act 1996, in the following terms:

“… What has to be assessed in terms of s.123(1) … is such amount as the tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the [claimant] in consequence of the dismissal, in so far as that loss is attributable to action taken by the employer. That includes a test of causation, or perhaps the same test twice over, once by reason of the words “in consequence of” and the second time in the words “attributable to”.”

That is the ordinary commonsense test of the common law. Was the loss in question caused by the unfair dismissal or by some other cause? The tribunal must ask itself and answer that question and then ask what amount it is just and equitable for the employee to recover. Rules will no doubt help as guidance in the process, but that is the task which ultimately has to be undertaken”.

In the same case, (at paragraph 21), Beldam LJ made the following comments:

“Causes, in my view, are not simply beads on a string or links in a chain, but, as was said many years ago, they are influences or forces which may combine to bring about a result. A tribunal of fact has to consider the appropriate effect of the wrongful or unfair dismissal and the effect of the termination of any employment which is subsequently obtained …”.

Often, the chain of causation will be broken if the unfairly dismissed employee obtains employment elsewhere, which he subsequently loses. However, it is also settled law that the employer which unfairly dismissed an employee will be liable for any loss sustained by that employee by reason of subsequent unfitness for work, if that unfitness has occurred as a consequence of the dismissal, “in so far as that loss is attributable to action taken by the employer”. (See, for example, Dignity Funerals Ltd v Bruce [2005] IRLR 189).

In Simrad Ltd v Scott [1997] IRLR 147, the Employment Appeal Tribunal was deciding an appeal in respect of an award of compensation in the following circumstances. The Employment Tribunal had awarded the claimant unfair dismissal compensation for future loss of earnings based upon her decision to change career and re-train as a nurse, in circumstances in which, after the unfair dismissal, she had been employed for some time in a job at a lower rate of pay. In that situation, the EAT did not find it easy to determine whether or nor, in the particular case, the decision to embark upon a nursing career was “sufficiently directly linked to the original dismissal to meet the test of attribution …”. With some hesitation, the EAT came to the view that it was too remote, both in time and content, to be directly related to the dismissal. It seems that the claimant lost in Simrad because the EAT came to the conclusion that, in relation to the decision to change careers, the unfair dismissal was more of a context than a cause.

To the extent (if any) that there is a distinction between the view of causation set out in Simrad on the one hand and Dench on the other hand, we prefer the approach in Dench.

In negligence and nuisance and under the rule in Rylands v Fletcher, only such damages are recoverable as are the reasonably foreseeable consequences of the relevant tortious act. However, foreseeability is not a necessary ingredient, in relation to the recoverability of damages, in respect of some other common law torts.

In Essa v Laing Ltd [2004] ICR 746, a majority of the Court of Appeal was not convinced that, by implication, a prerequisite of reasonable foreseeability of injury or damage applied in the context of the recoverability of compensation under discrimination law. As Ms McCrory has pointed out, the decision of the majority in Essa seems to have been based, to a considerable extent, on the particular legal context of discrimination law and upon the particular factual context of the Essa case (which involved a deliberate act of racial abuse). In considering Essa, in the context of the present case, we have borne those considerations very much in mind.

In Massey v UNIFI [2008] ICR 62, the Court of Appeal decided that a claim for general damages pursuant to Section 67 of the Trade Union and Labour Relations (Consolidation) Act 1992 (which provided for damages in respect of acts of unjustifiable trade union discipline), was not subject to any test of foreseeability and that, accordingly, the claimant in that case was entitled to be compensated for any loss arising directly from the unjustified discipline, regardless of whether the loss had been foreseeable or not.

Essa and Massey were dealing with statutory torts which are not the same as the statutory tort of unfair dismissal. However, with the unfair dismissal compensatory award provisions, they share the “just and equitable” concept. In Essa, the court saw no reason to imply a foreseeability requirement into the statutory provisions which deal with compensation for racial discrimination. In Massey, the court saw no reason to superimpose an implicit test of foreseeability onto the explicit statutory wording of the compensatory provisions of the 19992 legislation. In this case, having considered Laing and Massey and having taken due account of the differences between the statutory context of those cases and the statutory context of this case, we have decided that a requirement of foreseeability is not an implicit requirement in the context of Article 157 of the 1996 Order.

Under common law, foreseeability need only be of the kind of damage. (See Massey, at paragraph 32 of the judgment). The claimant’s claim in connection with somatisation disorder is still only, and can only be, a claim for financial loss. (See paragraph 18 above). Therefore, in any event, if (contrary to our conclusion as set out in the last paragraph above) the recovery of compensation for unfair dismissal is subject to a test of foreseeability, that test will always be met, because financial loss is always a foreseeable consequence of unfair dismissal.

As Ms McCrory pointed out, this is a claim for financial loss caused by somatisation disorder. She says that a claim for financial loss on that ground cannot be sustained unless an injury such as somatisation disorder was within the reasonable contemplation of the parties at the time of the unfair dismissal. However, we note that, even under the relevant common law foreseeability test, it is only necessary to foresee damage of the type which is in fact ultimately sustained. And we note that it is easily foreseeable that some dismissed employees will subsequently suffer at least mild anxiety or mild depression, as a result of their dismissal.

As already noted above, Article 157 of the 1996 Order provides that the compensatory award is to be such amount as the tribunal considers just and equitable in all the circumstances, having regard to the loss sustained by the claimant in consequence of the dismissal, in so far as that loss is attributable to action taken by the employer. As the Court of Session pointed out in Dignity Funerals Ltd v Bruce [2005] IRLR 189 (at paragraph 5 of the judgment), the question of whether the claimant’s dismissal was one of the causes of his wage loss during a relevant period is a question of fact, but the question of what compensatory award would be just and equitable is a question of discretion.

In considering that exercise of discretion, the appellate courts have tended to apply broadly the same principles on apportionment as those which are applied by the courts in respect of common law claims in tort. That explains the varying conclusions arrived at in Seafield Holdings Ltd v Drewett [2006] ICR 1413 on the one hand and in Dignity Funerals Ltd on the other hand: In each case, the relevant decision on apportionment was in line with what was considered to be the contemporaneous practice of the courts in relation to apportionment in the context of common law claims.

However, the law in relation to apportionment, in respect of common law claims, has not stood still since the decisions in Dignity Funerals and in Seafield Holdings respectively.

We consider that the up-to-date position is accurately set out in the judgment of Maurice Kay LJ in Massey and in the judgments in Dickins v O2 PLC [2009] IRLR 58. As Ms McCrory has pointed out, the actual context of Dickins and of Massey are very different from the factual context of the present case. We accept the appropriateness of that observation. We have taken full account of it in applying the principles of Massey and Dickins to the circumstances of this case.

In Massey, a claimant claimed damages, pursuant to section 67 of the Trade Union and Labour Relations (Consolidation) Act 1992, in respect of certain acts of unjustifiable discipline which had been perpetrated by her trade union.

Section 67(5) of the 1992 Act provided as follows:

“The amount of compensation awarded shall … be such as the Employment Appeal Tribunal considers just and equitable in all the circumstances …”.

The claimant claimed damages in respect of a stroke which she had sustained. According to the medical experts, there were three causes of that stroke. First, it was caused by two acts of unjustifiable discipline. Secondly, it was caused by other acts of discipline which were justified. Thirdly, it was caused by the stress felt by the claimant as a result of the tribunal proceedings which she launched in relation to the disciplinary action by the trade union. The experts were unable to quantify the precise contribution which each cause made in relation to the occurrence of the stroke.

That seems to be a typical situation in relation to psychiatric injuries. Psychiatry does not seem to typically allow for the kind of statistical analysis which is available in other fields of medical expertise.

In Massey, Maurice Kay LJ (with whose approach Wall LJ agreed) in essence accepted the submission of the claimant’s representative that:

“… once the appeal tribunal had concluded that the unjustified discipline was a significant (in the “but for” sense”) cause of the stroke, Mrs Massey was entitled to recover the gross figure for general damages because any apportionment was wrong in principle. Moreover the stroke was an “indivisible injury” and a tortfeasor whose wrongdoing had been a contributory cause of it was liable to pay the full amount, whether or not there had been other tortfeasors from whom a contribution could be claimed”.

(See paragraph 39 of the judgment).

At paragraph 46 of the judgment, Maurice Kay LJ set out the following conclusions:

“Where the harm – here the stroke suffered in 2004 – would not have happened but for the unlawful act or acts and takes the form of a physical injury such as a stroke, it is, in my judgment “truly indivisible”. Moreover it does not avail a tortfeasor if the harm is related to a pre-existing condition…”.

And later, at paragraph 51 of the judgment, the same judge made the following comment:

“… This is a case of indivisible injury, albeit inextricably linked to a pre-existing condition, and it does not call for the kind of apportionment approach now required in other, rather different, contexts. To that extent, I consider that the appeal tribunal was wrong to be drawn into the apportionment exercise”.

However, in Massey there was medical evidence that a pre-existing condition would probably have caused relevant symptoms within a predictable period in any event (even in the event of there having been no unjustifiable discipline). Therefore, the damages were discounted by the Court of Appeal to reflect that risk. (In other words, there was a discount for acceleration).

Dickins was a case in which the employee sued the employer for negligence in respect of psychiatric injury caused by excessive stress in the course of her employment. She had had a nervous breakdown. Excessive workplace stress was a factor in that breakdown. Other matters, not the responsibility of the employer, were also factors. In that case, in the Court of Appeal, both Smyth LJ and Sedley LJ argued (obiter) that there should have been no apportionment. According to Smyth LJ (at paragraph 42 of the judgment):

“Was this not a case of an indivisible injury (the respondent’s seriously damaged state following her breakdown) with more than one cause? It was not possible to say that, but for the tort, the respondent would probably not have suffered the breakdown but it was possible to say that the tort had made a material contribution to it. If that is a correct analysis, should not the starting point have been that the respondent was entitled to recover in full?”

In his own comments in Dickins, Sedley LJ (at paragraph 53) was even more forthright:

“… While the law does not expect tortfeasors to pay for damage that they have not caused, it regards them as having caused damage to which they have materially contributed…”

In summary, the basic rule of causation, in the context of remedies in tort, is the “but for” rule, which requires that the claimant must show that, but for the defendant’s breach of duty, he probably would not have suffered the injury complained of. Where two or more factors have contributed to the adverse result (in respect of which damages are claimed), the “but for” rule is modified in some circumstances. In particular, in the context of psychiatric injury, the evidence often will be that the claimant had a vulnerable personality and that there was more than one factor in play when he had his breakdown. Usually, in such a situation, the claimant succeeds in full, provided that the tortious factor was of more than minimal effect.

In Massey, Pill LJ, unlike Maurice Kay LJ and Wall LJ, was not willing to categorize the claimant’s stroke as an indivisible injury. However, he was also not prepared to apportion compensation, or to discount the claimant’s loss, to take account of the litigation stress. As he pointed out (at paragraph 78):

“… The litigation stress is consequent and parasitic upon the tortious acts [of unjustifiable discipline]. It is not itself compensatable in damages but it should not be isolated as a separate cause of the injury. It would not be just to reduce damages, on the present evidence, because of stress brought on by Mrs Massey’s reaction to the tortious acts. The litigation stress is closely connected with the stress resulting from the tortious acts, and a deduction would be inappropriate. The tortious [unjustifiable] disciplinary conduct not only satisfied the “but for” test but, for the purposes of assessing damages, should be treated as the cause of the injury. I should prefer to follow that reasoning, which is substantially the same as that of Maurice Kay LJ, than to attach the label “indivisible” to the injury”.

In calculating “loss” for the purposes of Article 157, it is appropriate to deduct the entire amount of any incapacity benefit received by the claimant during any period in respect of which compensation is available: Puglia v C James and Sons [1996] ICR 301.

Conclusions

In order to identify the amount (if any) of the compensatory award in this case, we must take the following steps:

At Step 1, we must ascertain the net loss which the claimant has sustained “in consequence of” the dismissal, in so far as that loss is attributable to action taken by the employer. In arriving at a figure in respect of “that net loss”, we must deduct any amount which the claimant has received, during any relevant period, in respect of incapacity benefit. At this stage, we must also carry out any necessary and appropriate process of apportionment. Finally, any “risk” deduction (to allow for any risk that the claimant, at some stage, would become unfit for work even if any he had been remained in the employment of the respondent) has to be considered and, if appropriate, applied.

At Step 2, we must deduct any amount which the employer has already paid to the claimant, by way of “compensation” for the dismissal (other than any enhanced redundancy payment).

Step 3 requires us to make a 50% reduction, pursuant to the determination which we have made, in the First Decision, in relation to the application of the Polkey principle. (See point (C) of the First Decision, as set out above).

At Step 4, we must deduct the amount of the enhanced redundancy payment (which the employer paid to the claimant) to the extent that it exceeds the basic award (see point (D) of the First Decision).

Step 5 requires us to apply the statutory cap. (The parties are agreed that, in relation to the claimant’s dismissal, that figure was £53,500).

Step 1

The parties have provided an agreed schedule of loss (“the Schedule”), which relates to losses to date, and which also relates to future losses. In the Schedule, the parties have identified and agreed the amounts which the claimant would have received if he had continued in the employment of the respondent; the amounts which the claimant in fact received; and the economic benefit of the pension contributions which would have been made on behalf of the claimant if he had continued in the employment of the respondent.

The Schedule records the fact that the claimant received a total of £776 in respect of incapacity benefit. That must be deducted in arriving at the figure in respect of the claimant’s net loss.

The parties are agreed that, subject to any apportionment and subject to any “risk” deduction (in the paragraph 41 sense), the relevant net losses, in the context of the overall Step 1 figure, were as follows:

Until 18 April 2004, an amount of £9,310.

From 19 April 2004 until 3 April 2009 (the date of the end of the remedies hearing), the amount of £107,724 (£108,500 - £776).

For the indefinite period beginning on 4 April 2009, £205,500.

We are satisfied that the claimant’s somatisation disorder was a condition sustained by the claimant in consequence of the unfair dismissal.

We have not made any apportionment (in the sense in which that term is used at paragraph 31 above) in respect of the figures specified at paragraph 49(2) and (3) above. We consider that the somatisation disorder was an indivisible injury and that it would not have happened “but for” the dismissal. We therefore consider that it is just and equitable that the respondent should pay in respect of the full amount of any financial loss attributable to that illness because its wrongdoing (in terms of the unfair dismissal) was a contributory cause of the somatisation disorder.

We would regard the stress resulting from the pending tribunal proceedings as being consequent and parasitic upon the act of unfair dismissal. Echoing Pill LJ, we would state that, although the claimant’s litigation stress itself is not compensatable in damages, it should not be isolated as a separate cause of the injury; and that it would not be just to reduce the claimant’s compensation because of stress brought on by the claimant’s reaction to the unfair dismissal; the litigation stress is closely connected with the stress resulting from the unfair dismissal, and any relevant deduction (by way of apportionment) would be inappropriate. As Ms McCrory has pointed out, the litigation in this case was of much longer duration than the litigation in Massey. However, we consider that the relevant comments of Pill LJ are just as appropriate to the circumstances of this case as they were to the circumstances of Massey. In this case, as in the Massey case, the claimant suffered stress because of the litigation, but that litigation had to be brought because the respondent had carried out wrongful acts and had not been willing to accept legal liability in respect of those acts.

We have decided to make a “risk” deduction, from the amounts which are referable to the claimant’s future loss and to his past loss during periods of unfitness, to allow for the risk that, at some stage in the future, the claimant would have become unfit in any event (would have become unfit even if he had been retained in the employment of the respondent). We have decided that a “risk” deduction of 15% is appropriate.

In arriving at that percentage, we have taken particular account of the following matters. The claimant was a rather vulnerable personality prior to dismissal, he had a good absence record up to the date of dismissal, and Dr Rodden was unable to quantify any risk that the claimant would have become “in any event” unfit.

Applying those conclusions:

The net loss in respect of the First Period was £9,310.

The net loss (after the deduction of incapacity benefit and after making the “risk” deduction) for the Second Period, was £91,565.

The net amount for future loss (after making the “risk” deduction) is £174,675.

Therefore, the overall Step 1 figure is £275,550.

Step 2

At this stage, we must make a deduction of £5,396, in respect of the payment in lieu of notice which was made to the claimant. That amount must be deducted from the overall sum identified at the end of Stage 1 above, leaving a figure of £270,154.

Step 3

The resulting balance must be reduced by 50% to reflect the chance that the claimant could and would have been fairly dismissed in any event. (See paragraph 4 above). That leaves a figure of £135,077.

Step 4

That figure of £135,077 must then be reduced by £3,900. That is the amount by which the claimant’s actual redundancy payment (the redundancy payment actually paid to him) exceeded the amount of any potential basic award. That leaves a figure of £131,177.

Step 5

However, that Stage 4 figure of £131,177 far exceeds the sum of £53,500 (which was the amount of the statutory cap applicable in respect of dismissal at the time of the claimant’s dismissal). Therefore, the claimant is entitled to compensation of £53,500.

Delays

These proceedings were begun in November 2003. This remedies decision is being issued more than five years later. Accordingly, in this Decision it is appropriate to set out the reasons for the delay.

The main hearing of this case was originally scheduled for 15 June 2004. However, due to anticipated industrial action on that date, on the part of administrative staff, that hearing was postponed until 20 September 2004.

On 14 September 2004, the claimant wrote to inform the tribunal that he was now representing himself. (Until then, the claimant had been represented by Campbell and Caher Solicitors). Accordingly, the case was postponed, at the request of the claimant, with the consent of the respondent’s representative.

The main hearing was re-listed for 1 December 2004. One of the respondent’s essential witnesses, Mr Coburn, was not available on that date. Accordingly, the hearing was postponed, at the request of the respondent and with the consent of the claimant.

By that stage, the claimant was requesting voluminous documentation from the respondent.

The case was re-listed to begin on 20 October 2005. On 6 October 2005, the claimant asked for a postponement on the ground of his ill-health. That request was supported by a medical certificate which certified that the claimant was currently unfit to attend the hearing. On 19 October 2005, the main hearing was postponed, without objection from the respondent’s representative.

In January 2006, the claimant wrote to the tribunal to state that his ill health was continuing and “… as such I would advise that the hearing is not ready to be re-listed”. At the request of a Chairman of tribunals, the Office of the Tribunals wrote to the claimant to ask for an update on his medical condition. He did not respond in a timely fashion. However, on 10 May 2006, the claimant wrote to the Office in the following terms:

“Apart from pain something is affecting my ability to read, see, think, write, reason, remember and stay conscious. I have been on an outpatient waiting list from last year to see a Consultant. My own doctor is on holiday but another in the practice confirms that neurology is the correct field and is checking for progress.

I will contact you further when my condition improves...”

By letter dated 22 May 2006, the claimant was reminded that he had failed to provide an appropriate medical certificate in relation to his current condition. He was reminded of the need to provide such a certificate. A Case Management Discussion was arranged for 12 June 2006 to consider the situation. On 6 June 2006, a doctor in the claimant’s local GP practice confirmed in writing that it was considered appropriate to support the claimant’s request to postpone the main hearing until after a neurologist’s opinion was received. The tribunal was told that the claimant was then currently on a waiting list “… with no definite date for an appointment”. In November 2006, the Office of Tribunals wrote to the parties to ask them to provide details of the up-to-date position on the question of whether or not the case was ready to be listed for hearing.

A Case Management Discussion was scheduled for 14 February 2007, for the purpose of discussing that issue. During the course of that CMD, it was agreed between the parties that the main hearing would begin on 20 August 2007. However, there were subsequent delays on the part of the claimant in complying with the obligation to provide his witness statement. Accordingly, at a Case Management Discussion which was held on 25 June 2007, it was decided that the main hearing of the case would be re-listed for October 2007.

The case was heard over several days, between 22 October 2007 and 1 November 2007.

The parties agreed that it would be better if certain remedies issues were left to a later stage of the hearing. Therefore, the 2007 hearing dealt only with liability issues and with some (but not all) of the remedies issues. The tribunal’s First Decision in respect of that stage of the case was issued on 4 January 2008.

At the end of the First Decision, we made the following points:

“15. As a general rule, if an unfairly dismissed claimant subsequently becomes medically unfit for work, he or she may not be able to recover compensation from the employer in respect of any lengthy period of such unfitness. That general rule is subject to an exception.

16. That exception may be applicable if the claimant can prove, to the satisfaction of the tribunal, that the relevant unfitness has been caused by the dismissal, or by the manner of that dismissal.

17. Against that background, if the claimant wishes to pursue a compliant of compensation against the respondent, it will be important for him to be able to prove to the tribunal, to the requisite standard of proof, that any relevant unfitness for work, during the period from April 2004 onwards, has been caused by the dismissal which is the subject of these proceedings, or by the manner of that dismissal.

18. As part of the process of considering whether such an assertion is provable to the requisite standard, the claimant should seek a letter from a doctor (or from some other medically qualified professional person) dealing with the following matters:

(1) Was the claimant unfit for work from 18 April 2004 to 19 November 2004? If so, what medical condition caused that incapacity and was that medical condition caused by the respondent company’s dismissal of the claimant, or by the manner of that dismissal? If so, to what extent?

(2) Has the claimant been unfit for work at any time from 19 November 2004 to the present date? What was the cause, or what were the causes, of any such period, or periods, of medical unfitness? In each instance was the relevant dismissal of the claimant (or the manner of that dismissal) a cause of any such period of unfitness? If so, to what extent?

19. We direct that the claimant shall send a copy of any such letter to the Secretary of the tribunals and that he shall send a simultaneous copy to the representative of the respondent, no later than 31 January 2008.

20. As soon as the medical practitioner’s letter is available, or as soon as it becomes known that no relevant letter will be made available within the relevant timescale, a Case Management Discussion should be sought (by either or both parties) for the purpose of arriving at agreed arrangements in respect of the procedures to be adopted at the next stage of these proceedings”.

On 29 January 2008, the claimant wrote to the Secretary of the tribunals, to point out that, upon consultation with his GP, that GP felt that it was “… most appropriate to consult with the Psychiatrist to whom he (my councillor (nurse)) referred me to before Christmas”. In the same letter, the claimant told the Secretary that his doctor was expecting an initial response from the psychiatrist by 4 February. By 6 February, the claimant was writing to the Secretary to inform her that there was no date available for the delivery of any report from the claimant’s Consultant Psychiatrist.

At a Case Management Discussion which was held on 9 February 2008, the remedies hearing was listed for 11 April 2008. Because of the personal circumstances of the Chairman of this tribunal, that hearing was postponed until 2 May 2008.

On 30 April 2008, the claimant’s Consultant Psychiatrist, Dr Nigel Rodden, contacted the Office of the Tribunals personally, with the following information. He stated that his medical report on the claimant was currently incomplete and would not be completed in time for the 2 May hearing; and that, if that hearing was postponed, he hoped and expected to provide a complete report by 15 May 2008. In view of the content of that correspondence, the Chairman of this tribunal decided to postpone the hearing.

A further Case Management Discussion was arranged for 27 May 2008, with a view to making arrangements for the new date of the hearing. At that CMD, Dr Rodden’s report was available. Having read that report, the case managing Chairman (the Chairman of this tribunal) expressed the view that it would be important, at the remedies hearing, for the tribunal to have the benefit of evidence from Dr Rodden in person.

In view of the fact that Dr Rodden would be appearing as a witness, it was necessary to postpone the scheduled hearing.

At the request of the respondent, a witness order was issued requiring the attendance of Dr Rodden. The remedies hearing was re-listed for 5 September 2008.

On 21 August 2008, the claimant’s current solicitors came on record on his behalf. On 26 August 2008, that firm wrote to the tribunal to ask for a postponement of the remedies hearing, in view of the fact that they had only recently instructed forensic accountants. Accordingly, the remedies hearing of 5 September 2008 was postponed, at the request of the claimant’s representative, with consent from the respondent’s representative.

There was a further Case Management Discussion on 2 October 2008. At that CMD, the parties agreed that there would now be two medical witnesses in the case, that this was now a very substantial claim for compensation, and that the case would last for at least two days. The parties agreed 29 and 30 January 2009 as the dates for the hearing. The hearing was listed for that date, on the basis that it would be unrealistic (having regard to the need to provide lengthy notice to medical witnesses) to list it for any earlier date.

The remedies hearing did take place on the two January dates.

At the beginning of March 2009, the finalisation of the tribunal’s remedies decision was imminent. However, the Massey decision then came to the attention of the tribunal. It was considered necessary to hold a further oral hearing in order to allow the parties to make submissions in relation to the implications (if any) of Massey for the present case. That further hearing was scheduled for 3 April 2009.

Recoupment of benefit from awards

The Recoupment Regulations apply. Attention is drawn to the notice below, which forms part of this Decision. The prescribed element is £19,586 (36.6% of £53,500). The prescribed period is the period from 22 September 2003 until 3 April 2009. The amount by which the monetary award exceeds the prescribed element is £33,914.

As already noted above, the amount of the compensatory award has been reduced because it exceeds the prevailing statutory limit. Therefore, the prescribed element has been reduced proportionately. (See Mason v Wimpey Waste Management Ltd [1982] IRLR 454).

Interest on industrial tribunal awards

This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Chairman:

Date and place of hearing: 29, 30 January and 3 April 2009, at Belfast.

Date decision recorded in register and issued to parties:

19.