United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MICHAEL DUGGAN OF COUNSEL INSTRUCTED BY: MESSRS SHACKLOCKS SOLICITORS 19 THE ROPEWALK NOTTINGHAM NG1 5DU
For the Respondent	THE RESPONDENTS NEITHER PRESENT NOR REPRESENT


 


MR JUSTICE LINDSAY (PRESIDENT):

1. We have before us a full hearing of the appeal of Mrs P M Evans in the matter Evans v Oaklands Nursing Homes Group Limited. There is some reason to believe that the Respondent company has since either changed its name or gone out of business but we are not immediately concerned with that. The unanimous decision of the Tribunal was that the Applicant, Mrs Evans, was unlawfully discriminated against by reason of her disability and the order continued:-

"The Respondents are ordered to pay her £500 compensation and £1,500 compensation for hurt feelings. There had been a hearing spread over some three days from the 8^th September to 16^th December 1998. The decision was sent to the parties on the 5^th January 1999 but it transpired that the version sent to the parties had only been intended as a draft and the corrected version was then sent out on the 19^th March 1999. In the meantime Mrs Evans had lodged a Notice of Appeal on 17^th February 1999".

2. On 19^th August of this year, following an extension of time, the Respondent company lodged a Respondent's answer resisting the appeal on the grounds there specified. There is no cross appeal as such. The appeal and the resistance to the appeal seem to go only to the question of remedy, not as to liability, and Mrs Evans may regard herself as perhaps fortunate that that has proved to be the case. It was held that for the foreseeable future she would not, on her own, be able to perform the functions of her job as a care assistant. There would have to be someone, so the Employment Tribunal held, with her either at all times or at least at all times when she was involved in heavy work or in supervising a patient.
3. The "adjustment" which the Tribunal seems to have considered reasonable, was the employment of an additional employee "someone junior straight from college" as a care assistant or "guardian" of Mrs Evans. That, the Tribunal considered, could have kept Mrs Evans in employment, although it seems to have been unclear whether a grant would be available to pay for this new junior, and unclear also how much would be paid and for how long it would be paid. One might here compare section 6(4)(e) of the 1995 Act to see how financial assistance should be looked into.
4. The list of examples in 6(3) of the Act of adjustments that may be appropriate in particular circumstances to be made, does not mention employing additional staff to be available so as, together with the disabled person, to be able together to perform the task that was originally given to the newly disabled person. The only relevant example in the Code of Practice supposes the allocation of "minor or subsidiary duties" and, even then, it might be that it contemplates the allocation of minor or subsidiary duties to an already existing other employee rather than a new one especially brought in for the purpose.
5. In such circumstances it was, at lowest, highly arguable that Mrs Evans' dismissal was "justified" within section 5(1)(b) and 5(2)(b) of the Act in the sense that if the less favourable treatment was her dismissal - and that plainly was what the allegation was - then the reason for it was both material to Mrs Evans particular circumstances and also was neither trivial nor minor, given her accepted inability to do her job to such an extent that she would have had to have another employee to act as an assistant and guardian. However, we shall, as we must, proceed on the basis that Mrs Evans was unlawfully discriminated against by reason of disability. There is no cross-appeal as to that and it must stand.
6. So far as concerns remedy, what is the position? As to quantum, the award of £500 compensation was stated by the Employment Tribunal but by no means sought to be explained. The Tribunal says:-

"We think she will be able to find some form of work (whether it is homework or whether it is work merely as a companion at a similar sort of rate of pay) now this case is all over and done with. We estimate in terms of net loss to her is the sum of £500".

As to that Mrs Evans argues:-

"The Tribunal did not consider the true loss of earnings of the Appellant arising out of the discriminatory acts but merely arrived at the figure of £500 without any rational basis for the said figure".

7. The Respondent's solicitors do not appear today; indeed no one appears for the Respondent today. They have written a letter of the 3^rd December which says:

"There does appear in any event to have been some confusion following the final day of the hearing on 25^th November. Our own notes indicated that the members of the Tribunal had heard all the evidence they needed on liability and all the arguments put forward by the parties' representatives but left it open for the Applicant (the Appellant in the present appeal) to submit an argument on quantum in writing to the Tribunal with a copy to ourselves so that we could comment in writing to the Tribunal members before they came to a decision.

The decision was announced without further argument on 16^th December but the full written reasons were not sent out until 7^th January 1999".

8. The Chairman, too, has been approached on the subject and he says:-

"The Appellants are correct: no reasons for £500 were given. There were discussions in Tribunal - £500 loss appeared at the hearing to us to be the medium figure [and it could be he meant to say median] for loss of earnings which we thought was the agreed (if we were to award) sum – we are "happy" to have the matter referred back to us to assess scientifically the sum".

9. Well, in the face of unanimity as to there having been either inadequacy or confusion, we hold that the award of £500 does represent an error of law, if only because it fails the Meek v City of Birmingham test in that it is impossible to tell how it was arrived at, at any rate with such a degree of precision as one is entitled to expect, namely that the decision has to be reasonably capable of being examined with a view to an appeal. So we set aside the award of £500.
10. As to the £1,500 described as for "hurt feelings", it too, is required to be a compensatory award - see section 8(4) - and it is to be arrived at as is prescribed in section 8(3). There is no hint of the use by the Employment Tribunal of such a process as section 8(3) prescribes in its coming to its award of £1,500. That is not say that the proper approach was not used, but it is not clear that it was. But the Tribunal does say something which does seem to be wrong. In paragraph 17 they say this:-

"We then go the question of her hurt feelings. As we have said this is not a case of malice but, nevertheless there were hurt feeling. The evidence we got from Mrs Evans was that she was a very hurt lady indeed. She felt bitter but she was more angry with the position she was in than with the nursing home but, nevertheless the nursing home had hurt her feeling so this is not at lowest end of the scale. Either given the size and resources of the Respondent and the nature of her hurt, it is at highest end of the scale".

11. The reference there to the size and the resources of the Respondent must be irrelevant, given that what needs to be quantified is a compensatory award. It is for Mrs Evans to prove that her feelings have suffered injury and that compensation is appropriate; although it is necessarily an unscientific process in awarding sums for something as subjective and as hard to explain as hurt feelings, it is for her to make a case for a particular award. The award depends on that rather than on how easily the Respondent can pay. A compensatory award should not vary depending upon the resources of the payer, at any rate unless the degree to which the Applicant's feelings were hurt was proven to be related in some way to the size and resources of the Respondent, which is inherently unlikely and certainly does not seem to have been proven to be the case here.
12. So we set aside also the award of £1,500. It seems to us that the appropriate course is to remit the whole question of remedy so that it can be judged afresh with a clean slate by the very same Tribunal that has so far acted. Mr Duggan, on behalf of Mrs Evans, suggested that there should be some other Tribunal in that Mrs Evans has lost confidence in this one but we do not see any ground in for having lost confidence in this Tribunal and we think it would be right that it should be the same Tribunal as before that should hear remedy, with a completely clean slate.
13. The Tribunal will have to decide which of the steps in section 8(2) is just and equitable in all the circumstances - a declaration or compensation, or the taking of specified steps - and if they elect that it is compensation which is the appropriate relief, then they must decide upon what sum is appropriate in the light of the requirement that the sum is to be calculated as is provided for by section 8(3) and that any award for injury to feelings also has to be compensatory and also has to be calculated under section 8(3).
14. So there is to be a full remedies hearing with a clean slate and Mr Duggan has suggested, and it seems to us right, that it should be preceded by a directions hearing at the Employment Tribunal to deal with matters generally, but, in particular, to determine what, if any, medical evidence needs to be heard at the full remedies hearing and also what evidence in relation to the availability of grants and the amount of them and their duration. We think there should be such a directions hearing. Accordingly, we set aside the awards as to remedy so far arrived at.
15. We direct there should a fresh remedies hearing with a totally clean slate so far as concerns remedy before the same Employment Tribunal, that it should be preceded by a directions hearing as we have indicated and that there should be a legal aid taxation of Mrs Evans' cost.