United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T G HARRIS In Person & Mr P Grainge (Friend)
For the Respondent	MR D GRIFFITH-JONES (of Counsel) Messrs Hammond Suddards Solicitors 2 Park Lane Leeds LS3 1ES


 


MR JUSTICE BURTON

1. This is an appeal against a decision promulgated on 16 November 1998, of an Employment Tribunal in Hull, chaired by Mr Latham. It arises out of a very serious and deplorable course of events, in which the Appellant Mr Harris was extremely badly treated, in the course of his employment by the Royal Mail.
2. On the case which he set out in his application to the Employment Tribunal, he was, over a substantial period bullied, humiliated and maltreated by his fellow employees at the Royal Mail. When he came to complain eventually about what had occurred, he was given short shrift by those whose duty it was fairly and properly to investigate such a complaint. He resigned from his employment on 22 May 1998.
3. When the application came on before the Employment Tribunal, on 30 October 1998, the Applicant had been informed, through his solicitor, whose services he then engaged, that the Respondent was no longer contesting the case on liability.
4. The case that was put forward was on two grounds, first unfair dismissal, on the basis that his resignation was constructive dismissal and secondly on grounds which were described in the original application as harassment, and which were clarified by amendment to the Originating Application as being discrimination under the Sex Discrimination Act.
5. So far as the latter is concerned, Mr Harris, the Appellant, is and has been homosexual. He asserted that the nature of the bullying that had taken place towards him was primarily because of his fellow employees' attitude and conduct towards him as a known homosexual. The amendment to the Originating Application to add a claim under the Sex Discrimination Act, was inevitably a limited one because the law, as laid down now by both the Court of Appeal and the European Court, is that discrimination on grounds of homosexuality, (that is on the grounds of sexual orientation) is not covered by the Sex Discrimination Act, which is limited to discrimination on grounds of actual sex or gender. The complaint that was made by way of amendment related to the allegation that the way the Respondent dealt with his complaint of misconduct towards him discriminated against him as a man, because, as it was put in the amended Originating Application, conduct towards him, which would not have been tolerated if it was conduct against a woman, had been treated as horse-play and not taken at all seriously.
6. The no contest that then took place on liability at the hearing on 30 October, amounted to no contest on liability for unfair dismissal or for sex discrimination as thus pleaded by amendment. There was however a live issue on quantum at the Employment Tribunal, and we have been told that a lengthy witness statement which had recited in detail the misconduct with which the Applicant had to put up over a lengthy period was replaced by a similarly detailed statement prepared by his solicitor, with his co-operation, based on all the allegations he wished to make relating to quantum. So far as quantum was concerned, there was a schedule of losses, which was produced with the Appellant's assistance by his solicitor and put before the Court with backup documents. That schedule of losses included a claim for injury to feelings, which was, without explanation in the schedule, or backup documents, quantified as £20,000. As to the financial losses which formed the balance of the claim, they totalled an additional £88,526.83. It consisted of the basic award and then a number of sub-heads of compensatory award.
7. There was, as we understand it, no dispute in the event about a number of these heads. Loss of earnings to date of hearing, basic award etc. There was a substantial issue, before the Employment Tribunal, about a number of the heads. The ones that I concentrate on, for the purpose of this judgment, relate simply to earnings and pension. The Appellant, through his solicitor, was contending before the Employment Tribunal that he was entitled to loss of future earnings, which he quantified in the schedule of losses at £29,980.09, predicated on the basis of a continuing loss of earnings through to the age of 60.
8. There was then a claim for loss of pension, on a similar basis, totalling £39,427.17, and then what was described as a loss of pension supplement, in the sum of £4,912.080.
9. Mr Latham, in his decision, reached the following conclusions. As to the claim for what was described by the Appellant in his schedule of losses as injury to feelings, he dealt with that on the basis of the assessment by the Employment Tribunal on the evidence before them of the position of the Appellant. The only evidence before the Employment Tribunal, produced by the Appellant and his solicitor, of his health, consisted of a letter from his GP which indicated that he had been assaulted, on the face of the physical indications, and that he had been naturally upset both by that and by the harassment which he was describing as having occurred. There was no suggestion in that letter or, indeed, in any other report or evidence that was put before the Employment Tribunal, of any continuing medical treatment or of any continuing medical condition.
10. The Employment Tribunal was thus arriving at a decision, as the industrial jury, as to what sum should be awarded in respect of loss of feelings, for which a claim could be mounted and an award made only under the Sex Discrimination Act. Thus, even if there had been evidence of a continuing medical condition, it would have been necessary for the Employment Tribunal to assess how much of that condition was caused or contributed to by the sex discrimination, namely the apparent disregard by his employers of the maltreatment of the Appellant by his fellow employees, rather than the actual maltreatment by the fellow employees itself. In any event, even if there had been some evidence of a continuing medical condition, if that had simply been exacerbation of any pre-existing condition, that factor too would have to have been considered. None of that would have been easy, even if there had been medical evidence. As it happens, as I have indicated, there was none, and so the only evidence that there was, which we are satisfied the Chairman and the members assessed fully, was the medical evidence which must have been apparent from the Appellant's own testimony as it has been apparent to us today, namely the way in which he had been so distressed, and understandably and rightly distressed, by what had occurred to him, but not on the basis that there was any continuing medical disorder or condition.

Upon that basis, the Chairman of the Employment Tribunal said as follows in paragraph 8.

"Various authorities were referred to including: -

Orlando –v- Didcot Power Station Sports & Social Club [1996] IRLR 262

Ministry of Defence –v- Cannock & Others [1994] IRLR 509

Telfor –v- Ministry of Defence, Case No 34162/96

(apparently unreported except in journals)

Armitage, Marsden and H M Prison Service –v- Johnson [which was reported, although this was not the report to which the Chairman then referred, in [1997] ICR 275]. In that particular case the Chairman referred the parties to the guidance given in that case, particularly in regard to the assessment of an award for injury to feeling and it was that guidance that the Tribunal took in making this assessment in respect of the injury to feelings. [I shall refer to these as "the Johnson guidelines"].

Then at paragraph 10, he says as follows: -

"With regard to injury to feelings and bearing in mind the guidelines as referred to earlier in this decision, the Tribunal considers this to be in one of the higher bracket of award, but at the low end of that high bracket, and awards the sum of £11,000 for injury to feelings and, in doing so, takes into consideration the medical treatment that the Applicant has received and the actions of the Respondent after termination of employment. An element of aggravated damage is therefore included in this sum, although a small element."

The Appellant appeals against that conclusion.

11. The second matter was the pension. But before we come to that I must deal with the question of loss of remuneration of future earnings, which has not been the subject of appeal before us, as I shall explain, but in respect of which conclusions were reached by the Tribunal, as the industrial jury.

The Chairman in his decision recorded as follows on paragraph 6:-

(a) "The Applicant at the time of the termination of his employment on 25 May 1998 (the effective date of termination of employment) was aged 40 and if he had remained with the Respondents up to his normal contractual age, he would have retired at the age of 60. He was engaged as a postman, an office he had previously held also with the Respondents. His current period of employment with the Respondents had been from 9 April 1990 to 25 May 1998. His previous employment had included bakery technician, research and development baker, research baker, waiter/barman/kitchen hand, baker, postman with the Respondents in London from January 1988 to November 1989, and a baker from November 1989 to April 1990. Thereafter he had been employed by the Respondents again as a postman at the Driffield office of the Respondents."

(b) "With regard to qualifications the Applicant had qualifications in bakery, bread-making, advanced bread-making and confectionery, cake design and decoration, and qualifications in bread-making and confectionery. He had not worked in that industry for some time due to his employment with the Respondents."

(d) "His employment history showed that he was particularly mobile, having worked both in the South of England and in the North of England over various periods, having changed his "employment on a number of occasions, including its geographic location.

(g) "The Applicant enjoyed pension provisions in respect of his employment with the Respondents. However, as a fact the Tribunal finds that the Applicant had during his employment been particularly mobile and indeed, was enjoying the second period of employment with the Respondents. The Tribunal could not find that he would certainly have remained in that employment until his contractual retirement age of 60 years, bearing in mind the previous employment history and the mobility of the Applicant, both as to type of employment and geographic location."

The Respondents conceded that the calculation of continuing loss should be calculated on the figures provided by the Applicant.

"It was also accepted by Counsel for the Respondents and the Applicant's solicitor that the Tribunal should properly take the net earnings shown in the calculation presented on behalf of the Applicant, which was based on a balancing factor of ignoring the existing overtime that could be earned." (paragraph 7 (b))

The Tribunal reached a conclusion about the loss of future earnings, and the Chairman in paragraph 9 (a) said this:

"In respect of loss of future earnings the Tribunal is satisfied that the proper way of assessing this matter is on the basis that the Tribunal, with its industrial experience, should look at the current situation, the Applicant's age and his current prospects of employment, given his qualifications and the mobility that he had displayed both in respect of types of work and geographic location, and assess the period of time that the Tribunal considers it would be before he could properly achieve employment at the same or similar rate to that which he enjoyed with the Respondents prior to the termination of his employment. The Tribunal are not satisfied in this case that a "personal injury" basis is appropriate as the Applicant has not been put in a position by the matters admitted by the Respondents such that his prospects of employment are any different, prejudiced or otherwise retarded by the treatment he has received, and he is still able (unlike a majority of personal injury claims) to continue to look for employment with the faculties that he had at the time of the termination of his employment with the Respondents, and indeed has always had in his recent employment career. He is in a situation where he can continue to find employment (as he has shown with exemplary speed) and the Tribunal considers in those circumstances that it should take a further year to achieve that return to the same income in further employment,"

and they assessed a continuing loss for a period of 52 weeks.

I interpolate to say that there is no appeal against that conclusion. At 9 (b) the Chairman recorded the Tribunal's conclusion in respect of the Appellant's loss in relation to pension.

"Following up on that principle the Tribunal therefore has considered the loss of pension rights. Here the Tribunal take a further view that although they might expect the Applicant to achieve salary remuneration at the same level in approximately one year, they recognise in many employment that there is a qualifying period of employment that is required before employees enter into a pension scheme. Here the Tribunal thinks it is appropriate to allow a period of two years. Here they have taken the agreed net calculator of £6,010.24, submitted on behalf of the Applicant and agreed by the Respondent making a total award for this head of £12.020.48."

In paragraph 9 (c) the Tribunal dealt with the further head of claim in the Applicants schedule by reference to loss of pension supplement, and made no award in respect of it, as there is no appeal in that regard.

12. The appeal which is pursued before us was limited by order of the Tribunal, after a Preliminary Hearing on 7 June 1999, to an appeal in respect of the £11,000 compensation, including Aggravated Damages for injury to feelings, and the award in respect of pension loss in the sum of 12,020.48. I shall deal with those two grounds of appeal separately.
13. First of all the £11,000. It was not in any detail argued by the Applicant, or by his equally able friend whom we gave permission to speak on his behalf, Mr Grainge, that the Tribunal was not entitled to award a lump sum, incorporating without differentiating the sum that it had concluded was appropriate in respect of aggravated damages, although that contention did appear in his Notice of Appeal. Nevertheless I deal with it briefly. It is quite plain that aggravated damages is not intended to punish the defendant in a case. It is intended simply to indicate that more than the usual amount of damages would be given to reflect the additional injury to the feelings of a claimant which is suffered over and above that caused by a tort or wrong unaccompanied by the kind of aggravated conduct which would merit an award of aggravated damages. It is exemplary damages, which can be awarded only in very limited circumstances, that reflect a punitive element. Although not strictly binding upon us, we find very helpful the decision of the Court of Appeal in Northern Ireland, reported as McConnell -v- The Police Authority for Northern Ireland [1997] IRLR 625, in which Lord Chief Justice Carswell made it plain 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 claimants feelings, and that aggravated damages should not be treated as an extra award which reflects a degree of punishment of a respondent for its behaviour. There was a dissenting judgment in the Court of Appeal on a different point, but all three of their Lordships in that case agreed that the right course was to arrive at a figure which included whatever sum was thought to be appropriate by way of aggravated damages in order to reflect the sum for injury to feelings. We agree, alternatively, in any event, we can see nothing objectionable or appealable in the fact that the Tribunal did not break down the sum so as to allocate a specific item to aggravated damages.
14. More significant was the basis of the appeal put forward forcibly by the Appellant, that the amount of £11,000 was simply too little, and he referred to one or two examples, one derived from a report in the newspapers and another from a very short report in IDS Briefing, of cases in which higher sums were awarded. Further and in particular he referred to the very case which the Tribunal themselves had taken as giving them guidelines, namely the Johnson case to which I have referred, which was a case of racial discrimination in which a total of £27,500, including aggravated damages, was awarded in respect of a campaign of racial harassment against the applicant for over eighteen months.
15. The Appellant faces considerable problems in relation to mounting an appeal of this kind, as we pointed out to him in the course of his submission informed as we were, although we did not in the event call on him, by a well argued skeleton by Mr Griffith-Jones. The first problem for the Appellant is the limited nature of the conduct for which the Employment Tribunal was entitled to visit this award on the Respondents. As I have made clear above, the only basis for compensation for injury to feelings is under the Sex Discrimination Act, and the nature of the sex discrimination allegation was limited, both in the pleaded Originating Application and, in any event, by the way in which it was alleged and was conceded, namely that the employers treated the Appellant differently from the way they would have treated a woman in relation to their investigation of his complaint.

That means that we are not here addressing a seven year, or even an eighteen month, period of harassment of the Appellant, but simply dealing with the clear distress and upset that he will have felt by virtue of the way in which his employers treated him in respect of the investigation.

16. Secondly, this is a case in which the industrial jury, having heard and seen the Appellant, concluded that this was "at the low end of the high bracket". That is exactly the kind of exercise which we expect the Employment Tribunal to carry out. It is understandable that the Appellant should have said that he did not feel that he had a full opportunity to get his point over, or make himself, or his anger, felt because, of course, in the end liability was admitted. But he must realise two things; first of all, as I have indicated, that his only sex discrimination claim was in respect only of the very latter end of the conduct of which he was complaining, and not in relation to the very serious mistreatment of him by his fellow employees; and secondly, also as explained above, the award was not a punishment of the Respondent but an assessment of compensation for his own feelings, in a situation in which he had no medical evidence to show anything more that would have been entirely apparent to the industrial jury by way of his own concern and his own distress. Such jury arrived at a figure of £11,000, after expressly directing themselves correctly in law on the basis of Johnson, to which I have referred. The Johnson guidelines to which the Chairman expressly referred, formed part of the decision of Mrs Justice Smith at 283, which reads as follows: -

"We summarise the principles which we draw from these authorities: (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 at 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 the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that is seen to be wrong. On the other hand awards should be restrained, as excessive awards could, to use the phrase of Sir Thomas Bingham M.R., 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. We do not think 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 have in mind. This may be done by reference to purchasing power or by 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."

Against the background of the Johnson guidelines, and knowing as they plainly did the amount of money that was awarded in Johnson, the Tribunal came to the conclusion that they did.

17. But thirdly, irrespective of the helpful guidance of Mrs Justice Smith in that case, it would in any event have been sensible to look at the equivalent kind of awards which would be made in the case of personal injury, where there is similar suffering caused to a claimant by a defendant's negligence, given, as is clear, that it is the condition of the Appellant that is to be looked at, rather than the conduct of the Respondent. It is plain to me that, looking at the facts of this case, without any medical evidence, as I have indicated, of any continuing condition, £11,000 (or some slightly smaller sum to allow for the 'top-up' of aggravated damages) would be certainly no less than, and, I rather suspect, rather more than, the amount that would be awarded to a claimant for personal injury in a negligence case who had injury to feelings, without permanent impact on his future.
18. We have to remind ourselves that we are an appellate tribunal, and whatever might be the figure, be it more or less, that we would otherwise have awarded, we can only interfere in relation to this case if we are satisfied that the Tribunal was perverse, which simply means so out of line that there must have been an error of law. Given that they expressly directed themselves in accordance with the law, that would in any event seem unlikely, but none of us can see that the figure of £11,000 is so small or so obviously wrong compared with what otherwise would have been considered appropriate, or so out of line with other cases, or so out of line with the evidence that was before the Tribunal, that we would interfere with it, even if we minded to say that it was objectionable in any way at all, which we are not. In those circumstances we dismiss the appeal in respect of the claim for the £11,000.
19. I then turn to the claim in respect of the pension loss. We would all wish to pay tribute to the way in which Mr Grainge has conducted the case and to the demeanour throughout of the Appellant who has (and we are entirely sympathetic with him) clearly suffered a great deal during these events, and we very much hope that today he is going to be able to draw a line for the future. It will also be apparent from what we say that we would be sympathetic if the position is that the compensatory award actually made may not reflect what he could or might have obtained on different evidence; but we are, we repeat, an appellate body.
20. The starting point for this appeal in respect of the pension loss is that there is no appeal in respect of the salary position. Therefore the Tribunal's finding is unchallenged that the Appellant would be back at work with the same or similar remuneration within a year. The Appellant's complaint is that the Tribunal found that he would have the same or similar pension within two years. In the argument before the Tribunal, as we understand it, the Appellant, through his solicitor, was putting forward the case, as per his schedule of loss, that he suffered effectively a lifetime loss of pension, calculated upon the basis set out at 2.3 of his schedule, which is where eventually the figure of £6,010.24 as an annual loss was arrived at, and then that was multiplied by a 6.56 figure to give a capital sum. The Respondent was submitting, consistent with its argument on salary loss, that one year was all that was required for the Appellant to be back in pensionable employment of a similar kind to that which he had lost. The Tribunal found for neither argument though it was much nearer to the Respondent's case than the Appellant's, by concluding in the passage that I have read from the Chairman's decision, that they would award for loss of pension not one year, but two.
21. There was, as we understand it, no specific evidence before the Tribunal at all on the availability of pensionable employment with a similar pension to that which the Applicant had had at The Royal Mail. The only evidence it seems there was, was in a written witness statement by a witness, who, although not called by the Appellant, had his statement tendered, and who was a senior employee at Sarah Lee UK Ltd, the company by which, at the time of the hearing or just before it, the Appellant was employed. This statement indicated that in the employment of Sarah Lee, although at that stage the Appellant was only employed on a temporary basis, if he became a permanent employee there was available a pension. The only information that was given about that pension was that it involved a contribution by the employers based on 7% of annual salary, which certainly would compare unfavourably with the pension that would have been available from the Royal Mail, which, although the pension fund was entitled to vary the percentage, at that stage was basing contributions on 9%. There was that limited evidence before the Tribunal, but, that apart, there was no evidence on availability of pensions by the Appellant nor any by the Respondent.
22. The Appellant's case was, no doubt, primarily that he was entitled to lifetime employment, resulting in lifetime compensation for loss of both salary and pension, but no doubt as a fall back he through his solicitor contested the Respondent's case as to one year being long enough. It seems entirely clear to us that there was no separate argument, any more than there was any separate evidence, based upon the question as to whether, if he were to find employment whose salary was the same or similar to that of the Respondent and which had a pension scheme, that pension scheme might not be as advantageous as that enjoyed at the Royal Mail. The Royal Mail Pension Scheme, as has been admitted or indeed asserted by Mr Griffith-Jones for the Respondent, is a good scheme. There may be many others which are equally good, there may be some which are better. There are obviously many which are less good. But there was no evidence about pension schemes, apart from that minimal reference to the Sarah Lee position, which in any event was not relevant upon the basis on which the Tribunal decided the matter, because they were not deciding it on the basis that he would stay with Sarah Lee, but simply on the basis of their generalised conclusion that he would obtain other similarly remunerated employment within a year.
23. There was thus no evidence, and seemingly no argument before the Tribunal, about any differentiation that the Tribunal should make between salary and pension as to the likelihood of obtaining an appropriate substitute. The Respondent, of course, was arguing that he would within a year obtain a similar salaried and pensioned employment, and the Tribunal agreed with the Respondent substantially, but gave an extra year for qualification for the pension.
24. It appears to us that it may well be that there could and should have been separate evidence on the question of availability in the area, or indeed in any kind of area where the appellant might go to work, given the Tribunal's conclusions about his mobility, of equivalent pension schemes to that of the Respondent. The fact remains, however, that there was no such evidence. If there had been evidence there might have been a contest about it, and there might have been evidence that there was plenty of other similar employment available with such pensions, but it is clear that the industrial jury considering the matters that were put before them, and taking into account their own knowledge and industrial experience, decided the matter upon the evidence and contentions that were in fact before them. It is not for this Tribunal to ask itself what might have happened if there had been other evidence, to hypothesise as to what that evidence might have been, or what answer there could have been to it or to think up a case for itself which was not made below, or allow a case to be run on some kind of hypothetical basis, so as to allow figures to be plucked from the air. It may be that if some such evidence had been adduced, a longer period than two years might have been arrived at, but there was no material before the Tribunal upon which they could reach such conclusion, or certainly no material which would lead this Tribunal to be able to say that they erred in not reaching any such conclusion. One comfort for this Tribunal is that, if the Respondent be right, the agreed basis upon which the figures were calculated before them (and this would have been the subject of their cross notice, if they had pursued it, which they have not) was wrong. The calculation at £6,000 per year was a calculation based upon the future proper diminution of the pension at age 60, as opposed to a proper calculation of what the actual loss is, namely that suffered as a result of there being no employers' contributions for the period of the two years for which the Employment Tribunal were seeking to compensate the Appellant. On the Respondent's figures the annual loss should have been something more like £2,000 a year rather than £6,000. If this is right then by chance, although the Tribunal did not appreciate that it was doing this, in fact six years will have been given rather than two. However, even if this be right, and we have not heard the Appellant as to whether he agrees with this new calculation in any event, that is by the way. On the basis of the evidence and the arguments that were before the Tribunal, it appears to us that the Tribunal made a perfectly reasonable decision, or certainly in any event that their decision cannot be attacked upon any ground of law or upon any ground upon which an appellate body such as this Tribunal can interfere. We dismiss the appeal.