United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR ANDREW BAILEY (of Counsel) The County Secretary Essex County Council County Hall Chelmsford Essex CM1 1LX
For the Respondent	MS EMMA DIXON (of Counsel) Instructed by: Ms J Fogg-Elliott Free Representation Unit Room 140 1st Floor 49-51 Bedford Row London WC1R 4LR


 


MR JUSTICE KIRKWOOD: On 5th April 1995 an Industrial Tribunal at London (North) found that Mrs Stocker had been unfairly dismissed from her employment by Essex County Council. That was after she had worked for them in the kitchen for over 20 years, starting as a kitchen hand and rising to the post of caterer. The tribunal's extended reasons were sent to the parties on 30th June 1995.

On 10th October 1996, the same Industrial Tribunal, constituted as before, held a remedies hearing. It awarded Mrs Stocker £14,852.16. That was made up of £3,851.16 by way of basic award; and £11,000 as a compensatory award. The calculation of the compensatory award reflected loss of earnings up to the hearing and future loss of earnings which came to a good deal more than £11,000 even after deducting certain payments and benefits that had to be deducted, but statute imposes a maximum limit of £11,000.

The Essex County Council appeals against the compensatory award, because from May 1995 onwards Mrs Stocker was in receipt of invalidity benefit which showed, they say, that she was unfit for work. Also, says the appellant, Mrs Stocker's incapacity was not attributable to action taken by the appellant as employer.

After Mrs Stocker lost her job with the Council in August 1994, she looked for other work. It was not easy to find any. She had two or perhaps three offers, but for one reason or another they were not suitable and Mrs Stocker did not take them up. The tribunal found that that was reasonable of her. Indeed the tribunal found that Mrs Stocker had made all reasonable efforts to secure alternative employment.

The tribunal found, however, that during that time Mrs Stocker had suffered from stress arising out of the circumstances of her dismissal. In May 1995 Mrs Stocker came off the unemployment benefit she had been receiving and became entitled to invalidity benefit. That, the Industrial Tribunal said, arose out of an injury at work in 1992.

We cannot go behind the findings of the tribunal unless they are shown to be plainly wrong and that the evidence cannot possibly support them. That is what the appellants say has happened here.

The Chairman's Notes of Evidence have helpfully been supplied to us. This is what they show of Mrs Stocker's evidence in chief.

"I became ill with nerves. May 1995. Visit to Doctor

January 1994. Lost a daughter. March 1994. Lost brother. Stress of losing daughter and brother. Still at work. 3 weeks off. Went back to work. The final blow - loss of job August 1994.

The way I was treated. No information that I'd get the sack.

Injured back 16/3/92. Chronic accident. At work I was able to carry on working with full support from staff. Can do similar job.

[Cross-examined]

Had to go on knees under fire [fryer]. Strain [reference to back strain]. Able to continue work for two years. In 194, loss of relatives. May 1995 - anxiety due to deaths in the family. I became ill. Stress and worry over bereavement.

[Reference in notes to some other matters]

Christmas 1994. Between Christmas and May - did not seek medical advice. I was not capable of looking for work. I assumed I'd be able to look after May 1995."

She was then cross-examined about a Doctor's report that was put in in respect of her incapacity. The Doctor's report was that of Dr Bass, a general practitioner, dated 2nd October 1996. In it he said:

"I first saw Mrs Stocker on 15 May 1995. She was very anxious, she was having palpitations and difficulty in sleeping and waking in the early hours of the morning. She told me there had been deaths and illnesses in the family since when she had developed symptoms of anxiety. Clinically there was no other abnormality found on examination.

I reviewed on 31 May 1995 when she was still quite stressed and was then having some panic attacks. I issued her with a medical certificate for three weeks stating that she was suffering with anxiety state. She also told me that she was due to have a Court case for unfair dismissal. On discussion she felt she did not wish to take any antidepressant medication for her depression."

The doctor then refers seeing her again in June and again in July and again in August, each time reviewing her state, and then he says:

"On 12 October 1995 she was also complaining of pains in her low back following a fall a week previously when she had hit her head and bruised and grazed her right knee and ankle.."

The doctor then refers to the way in which Mrs Stocker improved on antidepressant medication.

"I saw her again on 19 February 1996 when she was feeling very tired, she had a sinus infection. She was still complaining of some back pain. I felt that she was unable to carry out heavy lifting and gave her a National Health Service certificate for thirteen weeks.

The last occasion I saw her was on 21 March 1996 mainly for a common cold. I have not seen her since then."

The doctor then answers a number of questions posed to him by the solicitor at the Free Representation Unit who had solicited this report, and in answer to one:

"I feel because of the chronic, mechanical back pain which she has had for the last three to four years she is unable to do any heavy lifting or stand for long periods and will only be able to carry out light, part-time duties."

There was also before the tribunal a certificate of an adjudication officer's decision for the Benefits Agency. He says:

"I accept that the accident on 16.3.92 was an industrial accident as follows:

When bending to light the fryer in the school kitchen, the claimant felt a sharp pain in her back.

A declaration that there was an industrial accident is therefore made under section 44(2) of the Social Security Administration Act 1992."

There is accordingly some apparent conflict between the Doctor's letter and Mrs Stocker's own oral evidence. In relation to anxiety and depressions for which the Doctor first saw Mrs Stocker on 15th May 1995, the Doctor records the history as following from deaths and illnesses in the family. It was when he saw her for the second time on 31st May, that, as he noted, Mrs Stocker mentioned an unfair dismissal claim.

Mrs Stocker's evidence to the tribunal was that her bereavement had been in January 1994 and March 1994. She had had three weeks off work and then returned to it. It was the loss of her job in August 1994 that was the final blow, and, she seemed to add, it was the way she was treated.

It was for the Industrial Tribunal to find the facts on the evidence before them. The Industrial Tribunal would have been entitled to find that Mrs Stocker was not disabled from work by her bereavement apart from her three weeks off, and was able to work and did work despite it. It would have been open for the tribunal to find, if it had needed to, that it was the loss of her job, the action of the Council, that led to this recently bereaved woman to become ill.

There is again some conflict over the back injury. Dr Bass recounts the history upon Mrs Stocker's complaint to him on 12th October 1995 for back pain, that it followed a fall at work a week previously. He did however, refer to it having lasted for three or four years.

Mrs Stocker's evidence was that it all flowed from the accident at work in 1992, but that she was able to carry on at work, as plainly as she did, with the help, when necessary, of her colleagues at work. The Benefits Agency office decided that Mrs Stocker's back trouble resulted from her injury in 1992. To find in accordance with Mrs Stocker's evidence and the Benefits Agency decision was plainly open to the Industrial Tribunal.

The Industrial Tribunal's findings about these matter were compendious rather than detailed. In the extended reasons for the remedies decision the tribunal said this:

"3. ... During that period she also suffered from stress arising out of the circumstances of her dismissal. From 6 May 1995, she came off unemployment benefit and became entitled to incapacity benefit arising out of an injury at work on 16 March 1992. The injury would not have prevented her carrying out her duties as a cook had she not been dismissed by the Respondent. She had in fact carried on working after her injury until her dismissal in August 1994 with assistance from other members of staff working under her."

The tribunal then summarise the submission made to it by Counsel for the parties. On behalf of the County Council Mr Bailey submitted in this regard that:

"4 ... no compensation should be awarded from May 1995 when she became unavailable for work due to her incapacity. Alternatively there should be a percentage reduction of compensation."

Ms Dixon on behalf of Mrs Stocker submitted:

"5 ... As to her incapacity for work subsequent to May 1995, the incapacity did not and would not have prevented her from working in her job with the Respondent subsequent to the injury in 1992 had she not been dismissed. The object of compensatory award was to compensate the Applicant for all monetary loss arising out of her dismissal."

The tribunal then gave its conclusions:

"6 The Tribunal is in agreement with the submissions made by Ms Dixon on the Applicant's behalf. ... As to her present condition, had she remained in her job with the Respondent, she would have coped with the assistance of other catering staff. There is no basis for reducing the basic or compensatory award either on a percentage basis or restricting her entitlement to a shorter period."

The relevant statutory provision is to be found in s.123 of the Employment Rights Act 1996. Subsection (1) reads:

"(1) Subject to the provisions of this section and sections 124 and 126, the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."

The Industrial Tribunal was referred to the decision of an Employment Appeal Tribunal in Scotland in Devine v Designer Wholesale Florist Sundries Ltd [1993] IRLR 517, and brief reference had been made to that decision in the appeal before us today. I will return to the submissions made in respect of it in a moment.

In that case, Lord Coulsfield said at paragraph 2:

"... In the present case, there were findings that the appellant was unfit for work because of anxiety, and that her condition was directly attributable to the dismissal. Clearly, therefore, she had sustained a loss because of the dismissal since, if not dismissed, she would have remained employed. The reference in the section to action taken by the employer meant no more than the act of unfair dismissal. There were three possible situations concerning dismissal and ill-health. Firstly, an employee might become ill after a dismissal, without there being any relationship between the dismissal and the ill-health, for example if the employee sustained a broken leg. In that case, he would not be entitled to claim compensation from his employer in respect of a period for which he was unfit for work. Secondly, as was illustrated by the decision in Fougère v Phoenix Motor Co Ltd [1976] IRLR 259, an employee might be ill at the time of dismissal and, as a result, suffer a longer period of unemployment than he would have done if he were fit. In that situation, as had been held in Fougère, the employee was entitled to compensation for the period of unemployment. Thirdly, there was the present case in which the employee suffered ill-health immediately after the dismissal and directly attributable to it. In that case, just as much as in the preceding case, the employee should be entitled to compensation for the period of incapacity. ..."

On the appellant's behalf it is argued in part in the Notice of Appeal and skeleton argument and in part orally, first of all that Mrs Stocker's evidence about physical condition and its causes differed radically from the letter of Doctor Bass, in particular, and there is reference to the differences between those pieces of evidence. It is stressed that Mrs Stocker did not in fact seek treatment until 9 months after her dismissal. The Doctor was not told by Mrs Stocker that her depression and anxiety related to the manner of her dismissal; and Mrs Stocker's had received medical certificates for three periods, two relating to anxiety with treatment for depression, and one in relation to back pain, and the dates of those are given.

It is also said that Mrs Stocker's incapacity was due to chronic back pain arising from an injury pre-dating her dismissal and was therefore not directly attributable to her dismissal or the manner of it.

Secondly, it is said that the tribunal found wrongly that Mrs Stocker could have continued in her work despite the 1992 injury without proper regard to the fact of her eligibility for incapacity benefit which, prima facie, indicates incapacity to undertake any duties.

Thirdly, the tribunal is said to have erred in law and in fact in that it failed to give proper and due weight to the inconsistencies of Mrs Stocker's evidence; and secondly, that it had applied the Devine case wrongly, in concluding that Mrs Stocker was unfit to work through depression which was directly attributable to the manner of her dismissal; and in concluding that the cause of any incapacity in February 1996, that is to say the back trouble, was attributable to the manner of her dismissal.

The Devine case does not seem to us to establish any general principle beyond reiterating that the Industrial Tribunal and the Employment Appeal Tribunal is bound to follow the words of the statute. Lord Coulsfield there in the passage to which we have referred, gave instances in which loss connected with incapacity may or may not be attributable to the actions of the employer in unfairly dismissing the employee. To seek to found an argument by seeing whether the facts of this case fall within or without the examples given by the learned judge in Devine is entirely and fundamentally fallacious.

The tribunal did in fact find, as they were entitled to on Mrs Stocker's evidence, that her depression and anxiety was attributable to her dismissal and the manner of it. She had been at work up to August 1994 despite her bereavements. The tribunal did not find that the back trouble was attributable to her dismissal. For the appellant to argue that it did and erred in doing so, is to disregard the tribunal's extended reasons. In any event, that argument seems to us to quite simply miss the point.

The point, as the tribunal made clear, is that Mrs Stocker continued at work with her chronic back trouble because her colleagues helped her out. But for her unfair dismissal, she would have continued to hold down her job in that way.

The Industrial Tribunal made no error of law. The tribunal was plainly entitled to make the findings it in fact made. The perversity argument which is really at the heart of this appeal is hopeless. The appeal is entirely without merit and will be dismissed.

The consequence of the appeal being brought is that Mrs Stocker has not been paid a penny of the compensation found due to her. In March 1997, at a preliminary hearing, a large part of the County Council's appeal was struck out, leaving only the point argued before us. It has gone to loss of earning from May 1995 to the date of hearing and for a year after that. The appeal does not address the basic award nor loss of earnings up to May 1995 which themselves total rather more than half of the total award. But still nothing has been paid. The County Council might care to reflect whether that is a proper way for a public authority to treat a long-serving employee whom it has already treated unfairly. We would like to make clear that we do not think it is.