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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McKeith v Frank McCorry and others [2017] NIIT 01188_15IT (16 March 2017)
URL: http://www.bailii.org/nie/cases/NIIT/2017/01188_15IT.html
Cite as: [2017] NIIT 01188_15IT, [2017] NIIT 1188_15IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1188/15
CLAIMANT: Maria McKeith
RESPONDENTS: Frank McCorry, Colin Caruth, Una McRoberts, Marie Coleman, Marian Kane, Carmel Holly, Arder McKeown, Joe Blair, Marie O'Neill, Doreen Gray and Ann Clarke,
the Committee for the time being of Ardoyne Association, an unincorporated association
REMEDY DECISION
The unanimous decision of the tribunal is that the claimant is awarded compensation of £18,886.31 made up as follows:-
£10,000.00 injury to feelings including psychiatric injury;
£ 1,578.00 interest;
£ 6,760.00 (approximately) loss of earnings; and
£ 548.31 interest
Constitution of Tribunal:
Vice President: Mr N Kelly
Members: Mr R McKnight
Ms F Cummins
Appearances:
The claimant was represented by Ms S Bradley, Barrister-at-Law, instructed by the Equality Commission for Northern Ireland.
The respondents were represented by Mr R Fee, Barrister-at-Law, instructed by Higgins Hollywood Deazley, Solicitors.
Background
1. The Ardoyne Association is a unincorporated body which provides advice services in the Ardoyne area of North Belfast.
2. The claimant had worked for the respondent organisation as a volunteer and then a paid adviser. She was dismissed on 27 March 2015.
3. In a decision dated 21 March 2016, the tribunal concluded that the respondents had automatically unfairly dismissed and substantively unfairly dismissed the claimant and that the dismissal was an act of direct associative disability discrimination contrary to the Disability Discrimination Act 1995.
4. On 29 April 2016, the respondents lodged a Notice of Appeal against the finding of substantive unfair dismissal and the finding of direct associative disability discrimination.
5. The grounds of the appeal were:-
"(1) the tribunal erred in its application of the burden of proof in respect of direct discrimination;
(2) the tribunal erred in its application of the correct comparator in respect of direct discrimination;
(3) the tribunal erred in finding a claim of associative discrimination pursuant to the Disability Discrimination Act 1995;
(4) the tribunal erred in taking into account irrelevant considerations in respect of other individuals who were also made redundant;
(5) in light of all the evidence, the tribunal's finding of direct discrimination was perverse; and
(6) in light of all the evidence, the tribunal's finding of substantive unfair dismissal was perverse."
6. As part of their preparation for this appeal the respondents sought a copy of the recording of the tribunal hearing and prepared a transcript.
7. Part of that electronic recording was missing. There had been a break in that recording. The respondents had intended to argue that part of the tribunal's decision was incorrect, in that it had wrongly recorded answers in cross-examination.
8. Following consideration of handwritten notes, taken during the tribunal hearing, the respondents did not proceed with that particular application. It would appear that the disputed answers in cross-examination had been given during the break in the recording and that they had, in fact, been correctly recorded in the tribunal decision.
9. On 29 November 2016, the Court of Appeal dismissed the appeal.
10. The matter was therefore re-listed before this tribunal for consideration of remedy. The claimant seeks a remedy under various headings:-
"(i) A basic award under the Employment Rights (Northern Ireland) Order 1996 ('the 1996 Order') in respect of the substantive unfair dismissal. That would equate to the statutory redundancy pay already received and therefore can be disregarded.
(ii) A compensatory award under the 1996 Order in respect of the substantive and automatically unfair dismissal.
(iii) An uplift in the compensatory award in respect of the automatically unfair dismissal.
(iv) An injury to feelings award in respect of the direct associative disability discrimination. As part of that injury to feelings award the claimant sought an amount by way of aggravated damages.
(v) Psychiatric/personal injury damages.
Relevant law
11. This decision on remedy raises several legal issues. If this results in another appeal to the Court of Appeal, the parties may, on reflection, regret not accepting the suggestion in Paragraph 157 of the original decision to deal with remedy at that stage. If they had done so all matters would have been resolved by now.
Mixed discrimination and unfair dismissal
12. Section 58(2) of the 1995 Act provides that a tribunal:-
"Shall take such of the following steps as it considers just and equitable -
(a) making a declaration as to the rights of the complainant and the respondent in relation to the matters to which the complaint relates;
(b) ordering the respondent to pay compensation to the complainant."
13. In the present case no recommendation appears appropriate on the ' just and equitable' test and therefore the remedy will be one of compensation only.
14. Where a dismissal is both unfair and an act of unlawful discrimination, the tribunal would ordinarily award compensation on the basis of discrimination. The provisions relating to recoupment and to the statutory cap would therefore not apply and ' restoring the claimant's position' could produce a higher figure than the just and equitable test - see D'Souza v London Borough of Lambeth [1997] IRLR 677.
However, in this case the claimant seeks an uplift of 50% to be applied to any compensatory award under the 1996 Order. In the circumstances of this case, although it was not specifically addressed by counsel, compensation for financial loss appears to be claimed under the 1996 Order as part of an unfair dismissal award in relation to financial loss (loss of wages).
That provides the advantage of a statutory uplift; however, it also provides for recoupment and the statutory cap. The cap does not appear to be an issue in this case.
15. That the first issue raised by this case; whether financial loss should be assessed separately as a compensatory award, subject to a statutory uplift but also recoupment, in relation to an automatically unfair dismissal or as part of an award of compensation for unlawful discrimination. The answer should be whichever result gives the best result for the claimant who is entitled to both.
Future Loss
16. In unfair dismissal cases, the object of the compensatory award is to compensate employees for the financial loss caused by their dismissal. The object is not to punish employers for their wrongdoing. An award should therefore not be increased either out of sympathy for the employee or as a means of expressing disapproval - Lifeguard Assurance Limited v Zadrozny [1977] IRLR 56.
17. In Dunnachie v Kingston-upon-Hull City Council [2004] IRLR 727, the House of Lords determined that the power to award compensation in respect of unfair dismissal is limited to a financial loss attributable to that dismissal. It does not include non-economic loss such as injury to health or injury to feelings.
18. In the Zadrozny decision, Philips J stated:-
"The [employment] tribunal, in assessing compensation, should not fall into the benevolent error of awarding compensation, not for some loss due to the unfair nature of the dismissal, but more out of sympathy for the predicament in which the employee finds himself."
19. In Harvey on Industrial Relations and Employment Law, Volume 1, Division D1, at Paragraphs 2535 - 2540, two questions are indicated for the tribunal when assessing future loss. Firstly, the tribunal must consider what would have happened but for the unfair dismissal. It has to determine whether the employee would have continued in employment indefinitely or only for a limited period. Secondly, the tribunal must calculate the actual loss for the period which is considered appropriate.
20. The fixing of a relevant period for calculating future loss is not an exercise which can be done with mathematical precision on empirical evidence. To use the term adopted in Harvey, Volume 1, D1, Paragraph 2567, it is a highly speculative exercise. In Wardle v Credit Agricole Corporate and Investment Bank [2011] IRLR 604 , the Court of Appeal (GB) concluded that an employment tribunal had been wrong to award compensation by considering loss over the claimant's entire remaining career, subject to a reduction to reflect the chance of the claimant leaving the respondent's employment in any event. The Court stated:-
In my judgment, that is the wrong approach. In the normal case if a tribunal assesses that the employee is likely to get an equivalent job by a specific date, that will encompass the possibility that he might be lucky and secure the job earlier, in which case he will receive more in compensation than his actual loss, or he might be unlucky and find the job later than predicted, in which case he will receive less than his actual loss. The tribunal's best estimate ought in principle to provide the appropriate compensation. The various outcomes are factored into the conclusion. In practice the speculative nature of the exercise means that the tribunal's prediction will rarely be accurate. But it is the best solution which the law, seeking finality at the point where the court awards compensation, can provide."
21. The claimant in her statement of loss for the purposes of the remedy hearing has adopted the common practice of first claiming loss of net earnings to the date of hearing; in this case 15 months. That is the common practice in cases of this type and is based on the decision of the National Industrial Relations Court (NIRC) in Norton Tool Company Ltd v Tewson [1973] 1 All ER 183.
22. The textbook in this area, 'Employment Tribunal Remedies' by Korn & Sethi 4 th Edition states at Paragraph 6.38 that in this particular case, 'the NIRC said that compensation should be assessed under four headings'. It continues that the first of those headings should be:
"Immediate loss of earnings - that is, the loss of earnings between the date of dismissal and the date of hearing."
23. However the NIRC does not appear to have said that in terms in the Norton Tool decision. The NIRC when considering the correct manner for assessing compensation in relation to the loss of employment did not say that the first element in such compensation should be the loss of wages up to the date of the hearing; whether that hearing is by an employment tribunal or by some other judicial body. The date of any such hearing is subject to considerable variation and is impacted upon by a range of matters such as the availability of parties, the availability of counsel, the availability of witnesses and the availability of listing time. In the present case there has been an intervening appeal to the Court of Appeal on liability with an inevitable and significant delay in determining remedy. In real terms there can on occasion be significant delays in concluding cases and equally cases can move exceptionally quickly on occasion. In the tribunal's view, it is highly unlikely that the NIRC, or anyone else, ever intended that a significant element of compensation should be determined by such a random event as the date of the remedy hearing. The statutory basis for assessing compensation is to assess actual loss. It is not appropriate to assess a significant portion of actual loss by fixing that proportion to the listing dates given in that case for the determination of remedy.
24. In the Norton Tool decision, the NIRC separated the component parts of appropriate compensation into four headings:-
(a) immediate loss of wages;
(b) manner of dismissal;
(c) future loss of wages;
(d) loss of protection in respect of unfair dismissal or dismissal by reason of redundancy.
In relation to the first category, ie ' immediate loss of wages', the NIRC was not, as appears to be suggested in the textbooks and in the claimant's submission, stating that compensation should be awarded automatically or semi-automatically in relation to loss of earnings up to the date of hearing which determines remedy. It was in that context looking at the requirement then contained within the Contracts of Employment Act 1973 in relation to notice pay on the termination of employment. It was focusing therefore on the amount of notice pay that an unfairly dismissed employee would have received if he had been dismissed in the proper manner.
The NIRC stated:-
" (a) Immediate loss of wages
The Contracts of Employment Act 1963, as amended by the Industrial Relations Act 1971, entitles a worker with more than 10 years' continuous employment to not less than six weeks' notice to terminate his employment. Good industrial practice requires the employer to either give this notice or pay six weeks' wages in lieu. Mr Tewson was given neither. In an action for damages for 'wrongful' as opposed to 'unfair' dismissal he could have claimed this six weeks' wages but would have had to give credit for anything which he earned or could have earned during the notice period. In the event he would have had to give credit for what he earned in the last two weeks, thus reducing the claim to about four weeks' wages. But if he had been paid the wages in lieu of notice at the time of his dismissal, he would not have had to make any repayment upon obtaining further employment during the notice period. In the context of compensation for unfair dismissal we think that it is appropriate and in accordance with the intentions of Parliament that we should treat an employee as having suffered a loss insofar as he receives less than he would have received in accordance with good industrial practice. Accordingly no deduction has been made from his earnings during the notice period."
25. The Norton Tool decision concerned a claimant who had found alternative and comparable employment four weeks after dismissal. It is not possible to discern from this decision any general proposition that an unfairly dismissed person should automatically, or presumptively, receive compensation for loss of wages up to the date of the remedy hearing, particularly where the relevant time period exceeds any statutory or contractual notice period in this case, and amounts to some 15 months.
26. Therefore the issue in the present case and indeed in all such cases appears to be the speculative exercise of assessing when the claimant could be expected to obtain alternative equivalent employment and therefore fixing an appropriate point for future loss which should run from the date of dismissal and which should not depend in any way on the date on which the tribunal determined remedy .
As the Court of Appeal (GB) said in Wardle (see above), the tribunal should assess the loss up to the point at which the claimant would be likely to get another job, while recognising that this is a very speculative and unscientific exercise.
27. That is the second issue raised in this case; whether the common practice (or at least the claimant's interpretation of common practice) is wrong and whether loss of wages from the date of dismissal to the date of the remedy hearing should automatically or presumptively form part of any compensation, with an assessment of the likelihood of alternative employment applying only to the period after the remedy hearing?
Injury to feelings
28. The starting point for assessing to injury to feelings awards is obviously the Court of Appeal decision in Vento v Chief Constable of West Yorkshire Police [2003] IRLR 102. It highlighted the difficulties in this area when it stated:-
"It is self evident that the assessment of compensation for an injury or loss, which is neither physical nor financial, presents special problems for the judicial process, which aims to produce results objectively justified by evidence, reason and precedent. Subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress, depression and so on and the degree of their intensity are incapable of objective proof or of measurement in monetary terms. Translating hurt feelings into hard currency is bound to be an artificial exercise."
"Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are none the less real in human terms. The courts and tribunals have to do the best they can on the available material to make a sensible assessment, accepting that it is impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury."
29. The Court of Appeal in Vento approved the earlier decision in HM Prison Service v Johnson [1997] IRLR 162 where the EAT had stated:-
"(i) Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation about the tortfeasor's conduct should not be allowed to inflate the award.
(ii) Awards should not be too low, as that would diminish respect for the policy of anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it seen to be wrong. On the other hand, awards should be restrained, as extensive awards could to use the phrase of Sir Thomas Bingham MR be seen as the way to untaxed riches.
(iii) Awards should bear some broad general similarity to the range of awards in personal injury cases. I do not think that this should be done by reference to any particular type of personal injury award, rather to the whole range of such awards.
(iv) In exercising their discretion in assessing a sum, tribunals should remind themselves of the value in everyday life of the sum they had in mind. This may be done by reference to purchasing power or by reference to earnings.
(v) Finally, tribunals should bear in mind Sir Thomas Bingham's reference to the need for public respect for the level of awards made."
30. Vento identified three broad bands of compensation for injury to feelings. The relevant compensatory bands have been upgraded for inflation in Da'Bell v NSPCC [2010] IRLR 19 and the figure in the quotation from Vento below have been amended accordingly. Inflation has been relatively minimal in the period since 2010 and the Equality Commission did not argue for an inflation uprating at this stage. The Court in Vento stated:-
"Employment Tribunals and those who practice 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. [Tribunal's emphasis]
(i) The top band should normally be within [£18,000 - £30,000]. 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 grounds of sex or race. Only the most exceptional case could justify an award of compensation for injury to feelings beyond the upper limit of this band.
(ii) The middle band, [£6,000 - £18,000] should be used for serious cases which do not merit an award in the highest band.
(iii) Awards of between [£500 - £6,000] are appropriate for the less serious cases such as where the act of discrimination is an isolated or a one-off occurrence. Awards of less £500 are to be avoided altogether as they risk being regarded as too low and therefore not a proper recognition of injury to feelings."
31. The appropriate band of compensation for injury to feelings is a matter for each tribunal to determine on the basis of the evidence before it and on the basis of Vento. However, some recent appeal cases are of assistance in applying the guidelines in Vento.
32. In Governing Body of St Andrews Catholic Primary School and Others v Blundell [UKEAT/0330/09], the EAT considered a tribunal decision where the tribunal had concluded, in broad terms, that a teacher had been subjected to victimisation over a period of approximately six months after an earlier discrimination complaint. She had been subjected to unwarranted and negative feedback in a performance appraisal exercise and had suffered from a stress-related illness. She was subjected to disciplinary action after she had told parents, while she was off sick, that she was being bullied in the school. The tribunal, at first instance, fixed the injury to feelings compensation at £22,000, ie within the top Vento band.
The EAT concluded that this injury to feelings award was too high. While the victimisation had been serious and ' undoubtedly had deeply unpleasant consequences for the claimant, the tribunal could not properly have concluded that this case fell within the top band or that it merited an award of £22,000'. The EAT concluded that it fell fairly and squarely within the middle band as being a serious case. They fixed the appropriate level of injury to feelings compensation at £14,000.
33. In the case of HM Prison Service v Salmon [2001] IRLR 425, a female prison officer had been subjected to a humiliating working environment where male colleague had openly read pornographic magazines and engaged unacceptable sexual banter. This had culminated in a male colleague writing offensive and sexually degrading comments about the claimant in an official work record. The claimant was then off work for a period with moderate to severe depressive illness and eventually took medical retirement. The tribunal had awarded £20,000 for injury to feelings and £11,250 compensation for psychiatric damage. The figure of £20,000 for injury to feelings was expressed as including £5,000 aggravated damages. The EAT felt that this figure for injury to feelings was ' high' but not so perverse as to be subject to appeal.
34. In the case of HM Prison Service v Johnson [1997] ICR 275, a prison officer of Afro Caribbean origin who was ostracised by his colleagues and subjected to racist remarks and false accusations for a period of years had also been warned about sickness absence when a white officer with a poor record did not receive such a warning. The tribunal, at first instance, described this as ' campaign of appalling treatment'. The tribunal awarded £20,000 for injury to feelings and a separate figure of £7,500 for aggravated damages on the grounds that his complaints had been dismissed and put down to ' defects in personality'. £500 for injury to feelings was also awarded against both of two individual respondents making a total award for injury to feelings of £21,000. The EAT held that the tribunal had not erred in awarding £21,000 for injury to feelings. The tribunal could not be said to have acted on a wrong principle of law, misapprehended the facts or have made a wholly erroneous estimate of the damage suffered so as to entitle the EAT to interfere with the award. While the award of £21,000 had been, at that stage, larger than any other reported award for injury to feelings, the case had been ' a very serious one' and the award was not grossly or obviously out of line with the general range of personal injury awards. Nor, in the light of a prison officer's annual earnings, had the tribunal lost sight of the value of money in the real world.
35. In the case of Da'Bell v NSPCC [2010] IRLR 19, the EAT considered the case of a fundraiser in the NSPCC where the NSPCC had failed to make reasonable adjustments for her disability leading to an eventual constructive dismissal. The tribunal, at first instance, made an award of £12,000 for injury to feelings on the basis that the case fell within the middle of the Vento guidelines. The EAT upheld that decision. It stated that:-
"As was made clear from our citation from Vento in the Court of Appeal, this is not an exact science. The tribunal here was entitled to place within the second band the events which it had criticised the respondent for. It was entitled to note how long it had taken and to notice the effect on the claimant of these matters through her stress, her sickness, her frustration and so on. It was entitled in the light of that to make the award. We do not consider it inadmissibly brought into account the matters which it had rejected. There was enough material here, in our judgment, for the tribunal to place within the middle band the injury in this case. Where in the middle band is a matter for it to decide.
We indicated at the outset that appeals on the basis of inadequate or excessive compensation were more likely to succeed if the wrong band were chosen. Mr Dougan conceded the claim was worth £6,000 to £8,000. That is within the middle band. In our judgment, disputes about the placement within a band of an award are likely to be about fact and impression. They are more likely to raise questions of law if they are about placement in the wrong band or at the extremes. The difference here is between the midpoint and the lower end. Between the two poles are five steps. The respondent concedes the first (£8,000) and the Employment Tribunal chose the third (£12,000).
The Employment Tribunal listened to the claimant tell her story and say what effect the failures of the employer had upon her; that is the unique advantage not bestowed upon us. We will not interfere with such findings unless they are manifestly wrong, which in this case they are not."
36. That is the third issue raised by this case; the appropriate band in the Vento scale to reflect the claimant's injury to feelings as a result of the discriminatory dismissal.
Psychiatric injury
37. Damages for personal injury are recoverable where they are caused by the discriminatory act and claimants are not required to show that the injury to health was reasonably foreseeable.
38. It can be difficult to separate psychiatric injury from injury to feelings. Vento refers to both anxiety and depression as forming part of injury to feelings. However, the Court specifically stated in that decision that the bands of compensation were ' distinct from compensation for psychiatric or similar personal injury'.
The eventual award in Vento for non-pecuniary loss was ' a total of £32,000 made up as to £18,000 for injury to feelings, £5,000 aggravated damages and £9,000 for psychiatric damage, which took the form of clinical depression and adjustment disorder lasting for three years'.
39. In HM Prison Service v Salmon (see above), the EAT upheld a separate award for personal injury but suggested that tribunals were allowed to make a single award to cover both injury to feelings, and stress and depression:-
"(29) We accept that there is a risk of double recovery in cases like the present. No doubt in principle 'injury to feelings' and psychiatric injury are distinct. In Alexander [v Home Office [1988] ICR 665] May LJ clearly distinguished them when he said:-
' ... injury to feelings, which is likely to be of a relatively short duration, is less serious than physical injury to the body or mind, which may persist for months, in many cases for life'
Likewise in Prison Service v Johnson (above) Smith J accepted counsel's submissions that if the applicant had suffered 'injury to health' that would have been the subject of a separate head of compensation. However, neither of those were cases where awards were made under both heads; and in practice the two types of injury are not always easily separable. In a given case it may be impossible to say with any certainty or precision where the distress or humiliation that may be inflicted on the victim of discrimination becomes a recognised psychiatric illness such as depression. 'Injury to feelings' can cover a very wide range. At the lower end are comparatively minor instances of upset and distress, typically caused by one-off acts of discrimination; this appears to be the type May LJ had in mind. But at the upper end the victim is likely to be suffering from serious and prolonged feelings of humiliation, low self-esteem and depression; and in these cases it may be fairly arbitrary whether the symptoms are put before the tribunal as psychiatric injury, supported by a formal diagnosis and/or expert evidence."
"Tribunals in such cases do sometimes treat 'stress and depression' as part of the injury to be compensated for under the heading 'injury to feelings'; and we can see nothing wrong in principle in a tribunal taking that course, provided it clearly identified the main elements in the victim's condition which the award is intended to reflect (including any psychiatric injury) and the findings in relation to them. But where separate awards are made, tribunals must be alert to the risk that what is essentially the same suffering may be compensated twice under different heads."
40. That is the fourth issue raised by this case; whether compensation for psychiatric injury suffered by the claimant as a result of the discriminatory dismissal should be a separate part of the award or a component part of the injury to feelings award? If it is the latter, what effect does that have on the selection of the appropriate Vento band and the figure selected within that band?
Aggravated damages
41. In Alexander v Home Office [1998] ICR 685, the Court of Appeal considered a claim of race discrimination in a non-employment environment. A prisoner of Afro Caribbean origin had been described in his assessment:-
"He displays the usual traits associated with people of his ethnic background being arrogant, suspicious of staff, anti-authority, devious and possessing a very large chip on his shoulder."
He was not allocated to the type of prison employment that would have been normal.
The Court stated:-
"As with any other awards of damages, the objective of an award for unlawful racial discrimination is restitution. Where the discrimination has caused actual pecuniary loss, such as the refusal of a job, then the damages referable to this can be readily calculated. For the injury to feelings, whoever, for the humiliation, for the insult, it is impossible to say what is restitution and the answer must depend upon the experience and good sense of the judge and his assessors. Awards should not be minimal because this would tend to trivialise or diminish respect for the public policy to which the Act gives effect. On the other hand, just because it is impossible to assess the monetary value of injured feelings, awards should be restrained. To awards sums which are generally felt to be excessive does almost as much harm for the policy and the results which it seeks to achieve as do nominal awards."
"Further, even where exemplary or punitive damages are not sought, nevertheless compensatory damages may and in some instances should, include an element of aggravated damages where, for example, the defendant may have behaved in a high-handed, malicious, insulting or oppressive manner in committing the act of discrimination." [Tribunal's emphasis]
"On the other hand, if the plaintiff knows of the racial discrimination and that he has been thereby held up to hatred, ridicule or contempt, then the injury to feelings would be an important element in the damages. That the injury to feelings for which compensation is sought must have resulted from knowledge of the discrimination is clear from the decision of this Court in Skyrail Oceanic Ltd v Coleman [1991] ICR 864."
42. In Armitage, Marsden and HM Prison Service v Johnson [1997] ACR 275, the EAT was considering, in this case, the situation of a Afro Caribbean prison officer who had been subjected to harassment. The EAT stated:-
"We consider that, as a matter of principle, aggravated damages ought to be available to plaintiffs or applicants for the statutory torts of sex and race discrimination. Damages are at large and, at least so far as direct discrimination is concerned, the torts may be sufficiently intentional as to enable the plaintiff to rely upon malice, or the defendant's manner of committing the tort, or other conduct, as aggravating the injury to feelings. Although there is as yet no direct authority to support this proposition, the Court of Appeal has assumed that aggravated damages are available in discrimination cases."
"It seems to us that there were here factors which entitled the tribunal to make an award of aggravated damages. In particular, they identified the Prison Service's conduct of the investigation of the complaints of race discrimination. The tribunal described this as a travesty of what it should have been. Instead of providing the applicant with the remedy for the wrongs which he had suffered, they added to his injury by attributing all his problems to his own defects of personality. We think that this was a true case of aggravation; a case where the employer's actions rubbed salt in the applicant's wounds." [Tribunal's emphasis]
43. In Zaiwalla & Company v Walia [2002] IRLR 697, the EAT determined that aggravated damages could be awarded in respect of the conduct of tribunal litigation. Mr Justice Kay stated:-
44. The Employment Tribunal had concluded in respect of the conduct of litigation:-
" When she took tribunal proceedings a monumental amount of effort was put into defending those proceedings. That exercise was of the most inappropriate kind, attacking the applicant in relation to her personal standards of professional conduct and holding a series of threats over her head which would be daunting to any individual let alone to someone about to embark on a legal career having difficulty obtaining a training contract. The defence of these proceedings was deliberately designed by the respondents to be intimidatory and cause the maximum unease and distress to the applicant. There is no other way of describing it."
45. In Ministry of Defence v Fletcher [2010] IRLR 25, the EAT stated:-
"If the manner of or malice in committing the acts of discrimination are not fully reflected in an award for injury to feelings, in our judgment it is not an error of law for an Employment Tribunal to do so by making an award of aggravated damages in respect of those acts. Duplication of compensation must be avoided but in our judgment, in the words of Mummery LJ, an Employment Tribunal would take 'appropriate account of the overlap between individual heads of damage' in awarding aggravated damages in respect of an act which forms the basis for an award for injury to feelings if the manner of or motive for the conduct is so extreme that it falls within Lord Devlin's explanation of the basis for an award of aggravated damages and is uncompensated for by other remedies."
46. In Northern Ireland, the law differs from that in England and Wales in respect of aggravated damages. In McConnell v Police Authority for Northern Ireland [1997] NI 244, the Court of Appeal determined that in this jurisdiction aggravated damages should not form a separate head of compensation in addition to an award for injury to feelings.
47. The Court stated:-
"I agree with the summary of law and regard it as incorrect in principle to suggest, as the Law Commission does (Paragraphs 3.24 - 3.32, Pages 45 - 50) that aggravated damages may be partly punitive in character. It follows from these principles that an award of aggravated damages should not be an extra sum over and above the sum which the tribunal of fact considers appropriate compensation for the injury to the claimant's feelings. Any element of aggravation ought to be taken into account in reckoning the extent of the injury to his feelings, for it is part of the cause of that injury. It should certainly not be treated as an extra award which reflects a degree of punishment of the respondent for his behaviour."
"A tribunal ought to tread very carefully in deciding whether to take such factors into account. It may be suggested in support of this approach adopted in this case that an analogy may be found in defamation cases. Damages may be awarded for injury to the plaintiff's feelings as well as his reputation, and where a defendant contests a claim by pleading justification it will involve a repetition of a defamatory statement and an attempt to say that it was true. It is well settled that that may be taken into account in aggravation of the damages ... . But that is not the same as a defence in a discrimination case in which the employer contends that there was no discrimination, because appointments were made on merit, which necessarily involves his claiming that the complainant was not as well qualified a candidate as those who were successful. Where such a defence is honestly put forward, and the complainant is treated with propriety in the proceedings, the fact that his case or his recollection may be challenged is an insufficient reason without more to regard the employer's conduct as aggravating the damages. There may be possibly be cases in which there is justification for taking this view, and I do not wish to limit their breadth by attempting to define them. But an honest, if unfounded or even misguided, attempt by an employer to defend his actions should not necessarily be so regarded. I do not consider, having considered the tribunal's decisions with great care, that there is any evidence in those decisions of conduct by the appellant which is capable of aggravating the damages."
48. This is the fifth issue raised by this case; whether the respondents' actions, as specified by the claimant, were ' high-handed, malicious, insulting or oppressive' or ' whether they rubbed salt in the claimant's wounds' so as to aggravate damages which would form part of a composite injury to feelings award.
Working tax credit
49. The claimant seeks compensation, not just for loss of wages, but for loss of working tax credits.
50. Both counsel for the claimant and counsel for the respondents in their initial submissions referred to one obiter remark in relation to working tax credits. That reference was in the Court of Appeal case of Morrow v Henderson. The obiter remark by Campbell LJ was accepted as not being a binding authority. Both counsel stated words to the effect that it was ' a matter for the tribunal to satisfy itself as to whether it can make an award for loss of working tax credits'.
51. The basic statutory provisions underline working tax credits were not opened or explained to this tribunal. The possibility of working tax credits being replaced or in some manner fully or partially substituted after dismissal from employment, by alternative social security benefits such as income support etc was not opened or properly explained to this tribunal. The basis on which the claim in respect of working time tax credits was made or indeed rebutted was not explained to this tribunal. On 21 February 2017 the tribunal requested a further written submissions from both sides in relation to working tax credit. That request stated:-
" The tribunal has directed that a further written submission be obtained from both parties to be lodged in the Office of the Tribunals no later than Thursday 2 March 2017 to address the claim in respect of Working Tax Credit in this case. The written submissions should address the following, in particular, but should set out in plain terms either the claim for Working Tax Credit or the rebuttal of any such claim citing, in full, all statutory references and all references to case law and/or textbooks:-
(1) Is working tax credit a social security benefit or is it a credit forming part of income tax generally?
(2) If it is the former, ie a social security benefit, how is this a matter which is properly compensatable by the former employer and how is it not too remote? If it is the latter, ie a part of the income tax system, can the rule in Gourley be applied and, if so, how?
(3) On what basis is it alleged, or disputed, that the loss of working tax credits is a matter which should be compensatable by a former employer in the same way as loss of wages?
(4) Has loss of working tax credits ever formed part of a pecuniary loss claim in any contract or tort case elsewhere in the judicial system? If so, provide a copy of that decision or a full reference. If not, is it surprising that this is the case if this is a proper head of compensation?
(5) Has the loss of working tax credits ever been described in a recognised textbook, eg McGregor on Damages [19 th Edition], as a compensatable loss in any contract or tort (including statutory tort) case? If so, please provide a full reference.
(6) If the claimant has lost working tax credits, to what extent, if any, was this loss reduced or limited by alternative social security or other payments following dismissal? In other words, was there a loss and, if so, how much?
(7) In relation to future loss, to what extent, if any, is the claimed future loss in respect of working tax credits affected by either Universal Credit, welfare changes or the proposed amelioration of welfare changes within Northern Ireland?
(8) Given the case law in relation to the impact of social security benefits, or of income tax, on either recoupment by the state or on reducing compensation by all or part of any social security benefits or income tax rebates, where is the case law, legislation, or legal principle permitting the addition of a social security benefit or tax credit to pecuniary loss?
(9) Refer to:-
MBS Ltd v Calo [1983] IRLR 189
British Transport Commission v Gourley [1956] AC 183
McDaid v Clyde Navigation Trustees [1946] SC 462
Hartley v Sandholme Iron Co Ltd [1974] 3 ALL ER 475
Blackstones Employment Law Practice [2014] Paragraphs 32 - 90
Korn and Sethi Employment Tribunal Remedies (4 th Edition) Paragraph 7.40 "
52. Counsel for both parties provided further written submissions. Neither provided a clear answer (or any answer) to this problem. There appears to have been no decision in other jurisdictions which has found that loss of working tax credits is a loss which could be added to loss of earnings. In relation to employment tribunals there have been three decisions at first instance where the tribunals did add loss of working tax credits to loss of earnings. In the two Northern Ireland decisions the point does not appear to have been argued at all. In the sole English decision, Mosse, the decision is unavailable and does not appear to have been followed elsewhere.
53. In particular, neither party could clarify whether the loss of working tax credits represented a loss to the claimant or whether, on the termination of her employment, that loss had been partly or totally ameliorated by the payment of income support and other benefits.
54. The Employment Tribunal Remedies Handbook 2016 - 17 (Bath Publishing - foreword by Judge Brian Doyle, President, Employment Tribunals England and Wales) does not say that loss of working tax credits should be a compensatable loss in relation to either unfair dismissal or unlawful discrimination . Working tax credits do not appear to be mentioned at all.
55. Blackstone's Employment Law Practice (2014 Edition), states at Paragraph 32.90:-
"As the EAT points out in Brownson v Hire Services Shop Ltd [1978] IRLR 73 -
'Other things being equal, the first thing you lose in consequence of being dismissed is what you would have got in your pay packet'.
Pay for this purpose means all payments which are to be included in the pay packet whether payable under the contract of employment as of right or otherwise (ie overtime pay) excluding the payment of genuine tax free reimbursement of expenses. ... Pay is assessed on actual earnings as a net figure, ie after deduction of tax and national insurance. It has been held, at Employment Tribunal level, that a claimant may be compensated for the loss of working tax credits received in the course of employment ( Mosse v Hastings and Rother Voluntary Association for the Blind [ET Case No: 1103096/06/NW]."
56. In Korn and Sethi 'Employment Tribunal Remedies' (4 th Edition), it states, at Paragraph 7.40, that:-
" ... In MBS Ltd v Calo [1983] IRLR 189, the EAT said that tax implications should be ignored unless the sums involved are large. A similar approach was taken by an Employment Tribunal to the loss of working tax credit in Mosse v Hastings and Rother Voluntary Association for the Blind [1103096/06/NW]."
57. Until this year Employment Tribunal decisions in England were not available online and given that the decision in Mosse would be not in any sense binding and might indeed be barely persuasive, it would not be worth asking anyone to search in the archives in Bury St Edmonds to see if a copy of that decision can be located.
58. In Morrow v Henderson the FET decision in 2005 included compensation for the loss of working tax credits. That did not appear to be an issue of any particular debate before the tribunal or in the decision. The tribunal did not award compensation for injury to feelings.
In an appeal to the Court of Appeal, Campbell LJ referred to the compensatory award including sums in respect of ' loss of working tax credit'. The appeal was in relation to the lack of any award in relation to injury to feelings. There was again no discussion about compensation in respect of the loss of working tax credits. That does not appear to have been discussed at all. The remarks of Campbell LJ must therefore be regarded as obiter and not in any sense establishing any precedent that such compensation is correct.
59. The amount of working tax credit in the present case was for various sums in excess of £100 per week for the first 96.5 weeks up to the date of the remedy hearing and thereafter. It was therefore not a sum which can be disregarded under the rule in the MBS case which allows such matters to be disregarded if they are of small amounts. The specific legislation and the conditions surrounding entitlement to working tax credit had not been opened to this tribunal.
60. This is the sixth issue raised by the case; whether compensation for loss of earnings should include compensation for loss of working tax credits?
Statutory uplift
61. Under Article 17 of the Employment (Northern Ireland) Order 2003, where a dismissal is automatically unfair because of the non-completion of the statutory dispute procedures, the compensatory award shall be increased by 10% and if it is just and equitable to do so by up to 50%.
62. That is the seventh issue raised in the present case; what level of statutory uplift should be awarded in the present case?
Relevant findings of fact
Medical history
63. The claimant has had a long history of psychiatric ill-health. She has been on antidepressants since 2006 and in that year she was a psychiatric inpatient for approximately two weeks.
64. She was the primary carer for a disabled daughter with significant physical and mental health difficulties.
65. Dr Philip McGarry FRCP, consultant psychiatrist, was instructed by the Equality Commission to prepare reports on the claimant. He met her on two occasions, ie on 3 April 2016 and 9 January 2017, and prepared reports on both occasions. Dr Mangan FRCP Consultant Psychiatrist was instructed by the respondents' solicitors to prepare a report on the claimant. He met her on one occasion and prepared a report.
66. Both consultant psychiatrists attended the hearing. Before the hearing commenced they met to reach an agreed position, insofar as was possible, in relation to the medical evidence.
67. Following that discussion, the claimant's representative, with the agreement of the respondent's representative, indicated that the two consultant psychiatrists agreed that the claimant had a longstanding and recurrent depressive illness and anxiety disorder.
68. Both consultant psychiatrists agreed that following her dismissal on 27 March 2015, the claimant suffered a recurrence of that depressive illness.
69. Dr McGarry described that recurrence as ' mild depressive disorder' and Dr Mangan did not disagree.
70. Both consultant psychiatrists agreed that in the following months, April, May and June 2015, the claimant's condition deteriorated and that she was quite ill during that period.
71. Both consultant psychiatrists had recommended a course of cognitive behavioural therapy ('CBT'). The claimant had not taken advantage of that therapy and both consultant psychiatrists were critical of that failure on the part of the claimant.
72. Both consultant psychiatrists agreed that in 2016, after the claimant had been well for a period, she suffered another occurrence of the depressive condition in or around August 2016.
73. There therefore were two relevant recurrences of the depressive illness/anxiety disorder. The first was immediately after the dismissal at the end of March 2015; and the second was in or around August 2016.
74. In relation to the first recurrence, Dr Mangan was of the opinion that that recurrence had been 50% due to the dismissal and 50% due to concerns on the part of the claimant about her disabled daughter. In relation to that first recurrence, Dr McGarry attributed the recurrence two-thirds to the dismissal and one-third to her concerns about her disabled daughter.
75. In relation to the second recurrence, in or around August 2016, Dr Mangan was of the opinion that it had been 90% due to concerns on the part of the claimant about her disabled daughter and only 10% due to the legal process. In relation to that second recurrence, Dr McGarry felt that a fairer proportion would be 50% due to the dismissal.
76. Both consultant psychiatrists agreed that while the claimant had not been fit to work in August 2016, she had been fit to work from January 2017.
Both consultant psychiatrists had been asked to look at the factors in the Green Book dealing with psychiatric injury to see where the psychiatric injury in this case would fall within the bands set out in that Green Book. Both felt that the psychiatric injury in this case would fall on the borderline between minor and moderate psychiatric injury and would therefore come in at approximately £10,000.
77. Both counsel agreed that matters would not be advanced by the cross-examination of either consultant psychiatrist. The medical reports were sufficiently detailed. Both consultant psychiatrists were released at that point.
Decision
Injury to feelings
78. This case raises issues of potential duplication (or triplication) between amounts of compensation which might be awarded, firstly, in respect of that part of an award for ordinary injury to feelings relating to the Vento bands, secondly, that part of an injury to feelings award relating to aggravated damages; and, thirdly, that part of any award which relates to psychiatric injury.
Aggravated Damages
79. The respondent defended the claim of unfair dismissal and associative direct disability discrimination in a three day conducted from 27 - 29 January 2016. In the decision of the tribunal issued on 21 March 2016, the tribunal criticised the conduct of the respondent during the interlocutory process. It stated that it was clear:-
"That the respondent failed to properly provide discovery of relevant documents as reasonably requested by the claimant, or as ordered by the tribunal."
The tribunal set out examples of the conduct it criticised in Paragraphs 31 - 43 of its decision. In Paragraph 44 of its decision it stated:-
"There is a disturbing pattern of documentation, which on its face potentially lent some support to the claimant's case, being produced late, reluctantly and in a piecemeal fashion.".
80. The tribunal stated in Paragraph 45 of its decision that:-
"The manner in which discovery has been provided in this case by the respondent organisation which was legally represented throughout and the manner in which Mrs Burns responded to cross-examination is deeply concerning. It calls into question both the credibility of Mrs Burns and the attitude of the respondent organisation to both the claimant and to these proceedings."
81. Late discovery or imperfect discovery in not unknown in the tribunal or in the civil courts, particularly where voluntary bodies are involved. As the Zaiwalla decision suggests, aggravated damages arise only in exceptional cases of litigation misconduct. The present case is not such a case. The way in which the respondents approached discovery, and indeed the tribunal proceedings as a whole, was careless, disinterested, and less than wholehearted. It can certainly be criticised and was criticised. However, it was not ' high-handed, malicious, insulting or oppressive' to a degree that would justify an award of aggravated damages.
82. The respondents lodged a Notice for Appeal to the Court of Appeal on a point of law on 29 April 2016. Given that the original decision raised complicated legal issues regarding the shifting burden of proof and regarding associative disability discrimination it was in no sense surprising or unexpected that the respondents sought to appeal the decision of the tribunal.
83. The claimant, for the purposes of her aggravated damages claim, sought to criticise one aspect of this appeal in particular. The respondents had obtained a copy of the digital recording of the tribunal hearing. That was provided by the tribunal in accordance with the standard procedure in these matters.
84. On 17 October 2016, the respondents sought leave to refer to additional material which had not been available to it when the skeleton arguments and the book of appeal had been compiled in relation to the Court of Appeal proceedings. In short, the application referred to the transcript and sought to argue that the tribunal, at Paragraph 60 of its decision had wrongly recorded evidence given by Mrs Burns on behalf of the respondents. The application stated:-
"The appellant says this is important material which identifies a significant error in the decision of the tribunal. This goes to the crux of the tribunal decision in respect of a finding of direct disability discrimination."
85. It would appear that this application was withdrawn on the morning of the appeal hearing. It had emerged that there had been a break in the electronic recording which had led to the transcript and that the respondents had been incorrect to assert that the tribunal had wrongly recorded its evidence in Paragraph 60 of its decision. Handwritten notes compiled by those present at the tribunal hearing demonstrated that the relevant remarks had in fact been made.
86. It is clear that the making and then the withdrawal of the application had attracted some adverse comment from the Court of Appeal.
87. It appears more likely than not that the claimant had not actually been present when the Court of Appeal criticised the respondents' application and the withdrawal of that application. She would have become aware of these events shortly thereafter. In any event, it would appear that the late application to make this argument had been a genuine mistake on the part of the respondents and not any form of a ' high-handed, malicious, insulting or oppressive' tactic on their part. It had not been an attempt ' to rub salt in the wounds'. If anything, it had been a criticism of the tribunal rather than a criticism of the claimant. After some passage of time, the respondents had simply chosen to rely on the transcript rather than double-checking their own handwritten notes to check whether matters had been said during the break in recording.
88. The claimant sought to raise another issue in relation to her claim for aggravated damages. That concerned a report of the tribunal decision which had appeared in the Sunday Life. The report included a picture of Mrs Burns. The claimant stated that:-
"To see the large heading 'boss got rid of worker over her disabled daughter ' about my case accompanied by the picture of Elaine Burns apparently laughing was horrific. The more I read the article the worse I felt."
89. It would appear clear that the picture in question was not a picture provided by the respondents or indeed by Mrs Burns for the purposes of this article. This had been a picture obtained by the newspaper in a Google search which in its original form had shown Mrs Burns meeting a local politician. When the photograph had been published for the purposes of this article in the Sunday Life, the part of the photograph including the local politician had been cut off. While the claimant may well have been upset at a picture of Mrs Burns apparently laughing in the context of this tribunal case, that can hardly be laid at the door of the respondents. It had been the choice of the Sunday Life to use that photograph in this context.
90. The contents of the article again cannot be laid at the door of the respondents. The wording of the article had been, in any event, fairly anodyne with a relatively accurate summary in layman's terms of the tribunal's decision. It included a statement allegedly made by Mrs Burns that she had ' denied a court's ruling' and that she had said ' I'm a mammy too'. Again none of this can be laid at the respondents' door. In any event, it cannot be argued that it is a proper ground for aggravated damages that a losing party disagrees with a tribunal's decision. Any losing party is entitled to do so. The claimant also referred to facebook entries indicating that the respondents ' do not accept the decision by the court on discrimination'. There were also similar remarks and comments. Again, while individuals may feel upset that a tribunal's decision is not automatically and without equivocation fully accepted by a losing party, that is hardly a matter for aggravated damages. People are entitled to disagree with decisions of courts and tribunals. It is worth remembering that in a press release relating to a different decision of this tribunal which had found that the Equality Commission had indirectly discriminated against an employee on grounds of gender, the Equality Commission expressed itself ' disappointed' at the decision of the tribunal and stated that it was ' currently giving careful consideration to the tribunal's decision'. There really is no difference between an expression of disappointment on the one hand and on the other hand stating in plain terms that you disagree with the tribunal's decision. If it is permissible for the Equality Commission to express disappointment or disagreement with a tribunal decision (and it is), it is difficult to see why the argument is mounted that it was not permissible for the Ardoyne Association and that it would justify an award of aggravated damages.
91. Another matter raised in the context of the claim for aggravated damages was the subject of evidence given by Mrs Gerardine McKeith, the mother of the claimant. She stated that she had been employed as a social security tribunal representative by Ligoniel Improvement Association who, at the relevant times, had been a partner of the Ardoyne Association. On 8 December 2016, she was asked to attend a meeting with her employer. Her employer had advised her that they felt they owed her a duty of care and that they were warning her that there was going to be a press release regarding the case. She stated that she been advised by her employer that the case could ' close Ardoyne Association down'. She stated that she had been told there was no money for the case as it was ' wee pensioners' who would have to pay for the case.
92. It seems more likely than not that this conversation did take place as described by Mrs McKeith. However, there is absolutely no evidence that any of the respondents had sought to put pressure on the claimant through Mrs McKeith in this manner. If there had been such evidence, it would clearly have been a matter which might have sounded in aggravated damages. However in the absence of any such evidence, the tribunal can only, on the balance of probabilities, conclude that the respondents were not involved.
93. There appears to be no basis on which aggravated damages could be awarded in this case.
Psychiatric injury
94. Two separate matters also arise for determination; firstly, the correct apportionment to be applied in relation to the first recurrence of the depressive/anxiety disorder following the dismissal as between the dismissal itself and the concerns held by the claimant about her daughter; and, secondly, the correct apportionment to be applied in relation to the second recurrence of depressive/anxiety disorder in or about August 2016, again between the dismissal of the claimant and the concerns of the claimant in relation to her daughter.
95. The fact that the two consultant psychiatrists disagree, despite attempts to reach agreement, on the correct level of apportionment in respect of the two recurrences indicates how difficult this particular task is. As indicated by Dr McGarry in his second report of 9 January 2017:-
"It is the case that individuals who present with non-psychotic recurrent depression are indeed vulnerable to significant life-stressors as aetiological factors in the recurrence of depressive symptoms. It is always difficult to come to a definitive opinion as to exactly what percentage of the causation can be attributed to one factor over another."
96. There were clearly two causes which precipitated the two separate occurrences of the depressive/anxiety disorder. The first had been a dismissal with the consequent litigation. The second had been the concerns held by the claimant for her disabled daughter.
97. In relation to the first recurrence which followed the dismissal, Dr Mangan attributed the cause equally between the two factors at 50/50. Dr McGarry attributed the causation as to two-thirds to dismissal and one-third to the claimant's concerns about her disabled daughter. Converting that into percentages, the difference presented by the evidence of the two consultant psychiatrists is between 50% due to the dismissal and 66.66% due to the dismissal.
98. While recognising that it is always difficult, as indicated by Dr McGarry, to reach a definitive decision in these matters, it is clear that the claimant had experienced concerns about her daughter for some considerable time. There was no particular event in relation to her daughter at the end of March 2015 which could have had a particular or overwhelming impact on the claimant's mental state. On the balance of probabilities, it would seem that the dismissal was the more significant causative factor. Therefore the unanimous decision of the tribunal is that the first recurrence of the depressive/anxiety disorder was 66.66% due to the dismissal.
99. In relation to the second recurrence, in or about August 2016, there again does not appear to be any particular factor in relation to the claimant's daughter which would have on its own, or in the main, precipitated the recurrence of the depressive/anxiety disorder. On that basis it would appear, on the balance of probabilities, to the case that, as suggested by Dr McGarry, the correct apportionment would be 50% between the two potential causative factors.
100. Looking at the issue of psychiatric injury as a whole, encompassing the two recurrences of the underlying condition in March 2015 and August 2016, the tribunal concludes that the psychiatric injury was 60% due to the dismissal.
Injury to feelings - Vento
101. The tribunal concludes that in all the circumstances of this case, it would be appropriate to award a single figure for injury to feelings incorporating psychiatric injury.
102. The two consultants agreed that the appropriate figure for psychiatric injury was circa £10,000. Of that, it would appear that £6,000 is attributable to the dismissal as 60%.
103. This was a case where there had been two relatively brief recurrences of a mild depression/anxiety disorder. It is impossible to completely distinguish the effects of those recurrences from ' ordinary' injury to feelings. The tribunal has to be careful to avoid duplication while at the same time awarding sufficient compensation. The figure of £10K in total for injury to feelings, incorporating compensation of £6K for that part of psychiatric injury properly attributable to the dismissal appears to be appropriate.
104. In terms of Vento, and avoiding duplication, this is an award at the lower end of the middle band.
105. Under Regulation 7 of the Industrial Tribunals (Interest on Awards on Sex Discrimination and Disability Discrimination Cases) Regulations (Northern Ireland) 1996 interest at 8% is due on the injury to feelings compensation from the date of the injury (the dismissal) to the date of calculation. No serious injustice which would require the use of a different period is evident.
106. The calculation is:-
Date of dismissal : 27 March 2015
Date of calculation : 17 March 2015
720/ 365 x 8% x £10,000.00 = £1,578.00
107. The claimant is therefore awarded £10,000.00 for injury to feelings incorporating psychiatric injury with £1,578.00 interest; totalling £11,578.00.
Working tax credits
108. The tribunal concludes, on the evidence and submission before us, that loss of working tax credits should not form part of compensation for financial loss in this case.
109. Working tax credits have been in operation for a considerable period and have been received by a significant proportion of the working population. Nevertheless, apart from three employment decisions at first instance, and one obiter remark, no court or tribunal appears to have added working tax credits to earnings to assess loss. No textbook on damages, apart from one reference in Blackstone, and one reference in Korn & Sethi deals with this issue. Both refer only to the decision in Mosse.
110. No loss has been established on the evidence. It seems more likely than not that the loss of working tax credits has been compensated by another benefit. The tribunal, despite a specific invitation, has not been properly addressed on this point.
111. Working tax credits cannot properly be described as earnings. They are determined and paid for by the state. They appear to be a social security benefit. It cannot be right that an employer is required to pay more than it would have done if employment had continued; particularly since no actual loss has been established.
Financial loss
112. Given that there will be a statutory uplift in this case, it would seem appropriate to award compensation for financial loss under the 1996 Order as requested by the claimant. The tribunal also concludes that there is no automatic or presumptive entitlement to loss of earnings up to the date of the remedy hearing or the remedy calculation. For the reasons outlined earlier, such entitlement seems entirely illogical. The proper measure of loss is the loss of earnings until the point at which the claimant is likely to have obtained alternative employment.
113. The claimant was dismissed on 27 March 2015. As indicated above, it was clear that for the period of three months after that date she suffered a mild depressive episode.
114. She accepted, in the course of cross-examination, in the substantive hearing that there was no evidence from her of any application for a job until 6 October 2015, over six months later. She had already told her General Practitioner on 17 September 2015 that she could ' lose job if not seen to be actively seeking more'. At the date of the substantive hearing, ie 27 - 29 January 2016, there had only been evidence of three job applications in total.
115. The claimant is a single parent with two children, one of whom is being home schooled. She accepts that she is greatly restricted in the hours that she is available to work and has stated in evidence to the substantive hearing that she had one friend who could help her in respect of caring for that daughter. As against that restricted availability, she states that ' her job to be financially viable and beneficial to my family I need to work 16 hours a week, any less offers nothing but hardship'.
The requirement for 16 hours work per week appears to relate to working tax credit.
The claimant therefore has conflicting requirements; particular hours but at least 16 hours per week.
116. The claimant uploaded her CV with three different agencies in October 2015. There is no evidence of any earlier search for employment.
117. Following October 2015 up until January 2016, the claimant appears to have applied for only three jobs. None of those applications apparently resulted in an interview. The claimant accepted in cross-examination that her limited availability meant that other applications had not been made. She stated ' I am limited due to (name of daughter)'.
118. Following the hearing on 27 - 29 January 2016 the claimant appears to have been looking for employment at least until the recurrence of her depressive/anxiety disorder in or about August 2016. She has produced a full Lever Arch folder full of photocopies of documentation relating to jobs. None of this was opened to the tribunal. She stated in her witness statement for the remedy hearing that she had been continually looking for work but that ' there is nothing suitable'. She stated ' employers are often looking for flexibility in terms of hours or experience/skills I don't have'.
' As a result of this I am extremely limited as to the hours I am available to work'.
119. The tribunal has concluded that the claimant could and should have been able to obtain part-time comparable employment within 52 weeks of the date of her dismissal, taking into account her initial incapacity for about 12 weeks after this dismissal. There can be no certainty about this matter. Nevertheless the tribunal, as an industrial jury, must assess the actual loss by estimating, on the basis of its own knowledge and experience, the likelihood (not the proven certainty) of obtaining alternative employment. Part-time working is increasingly common and the wages previously obtained by the claimant were not that high. Fifty-two weeks in total starting from the date of dismissal appears appropriate.
120. The loss of wages is therefore £104.00 x 52 weeks = £5,408.00
Statutory uplift
121. The potential statutory uplift ranges from 10% to 50%.
122. The respondent significantly failed to implement the statutory three step procedure. Those matters are set out fully in the liability decision.
123. The respondent appears to have acted carelessly rather than maliciously. Nevertheless the respondent's failures were significant.
124. The tribunal concludes that the appropriate statutory uplift is 25%.
125. The financial loss award is therefore:-
£5,408.00 x 25% = £6,760.00
126. Interest at 8% is due from the midpoint between the date of the dismissal and the date of calculation under of the Industrial Tribunals (Interest on Awards on Sex Discrimination and Disability Discrimination Cases) Regulations (Northern Ireland) 1996.
127. The calculation is:-
Date of dismissal : 27 March 2015
Date of calculation : 17 March 2017
Midpoint : 360 days
360/ 365 x 8% x £6,760.00 = £548.31
128. The interest payable on financial loss is therefore £548.31.
129. The total award is:-
(1) £10,000.00 - injury to feelings (including psychiatric injury)
(2) £ 1,578.00 - interest on injury to feelings
(3) £ 6,760.00 - financial loss
(4) £ 548.21 - interest on financial loss
Total £18,886.21
Recoupment
130. The Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations (Northern Ireland) 1996 as amended provides for the recoupment of income support and certain other benefits from the compensatory award under the 1996 Order. It provided that part of the award (' the prescribed element') is held back by the respondent for a period to allow the Social Security Agency to recoup expenditure on relevant benefits.
131. The monetary award is £18,886.21.
132. The prescribed element is the compensatory award the 1996 Order from the date of dismissal, ie £6,760.00.
133. The dates to which the prescribed element is attributable is 27 March 2015 to 26 March 2016.
134. The amount by which the monetary award exceeds the prescribed element (ie the amount that should be paid immediately) is £12,126.21.
135. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Vice President
Date and place of hearing: 2 February 2017, at Belfast
Date decision recorded in register and issued to parties: