United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR MARTYN BARKLEM (Of Counsel) Instructed by: Messrs Colman Coyle Solicitors Wells House 80 Upper Street London N1 ONU
	MR VINCENT KETER Representative 55b Alexandria Road London W13 ONR


 


JUDGE PETER CLARK

1. By an Originating Application presented to the London (North) now (Central) Employment Tribunal on 13 January 1999 the Applicant, Tracie O'Keefe complained of unlawful sex discrimination on the part of the Respondent, National School of Hypnotists & Phychotherapy (NSHAP). In that application she states that she was a student at NSHAP on a course designed to lead to registration with the United Kingdom Council of Phychotherapists (UKCP). However, she was not put forward for membership of UKCP by NSHAP, she claimed because she was a transsexual. She was discriminated against on grounds of her sex.
2. On 19 April 1999 she presented a second complaint to the Employment Tribunal complaining of unlawful sex discrimination on the part of the UKCP.
3. The combined complaints came on for hearing before an Employment Tribunal chaired by Mr G Flint over 5 days. By a decision promulgated with Extended Reasons on 21 September 2000 the tribunal dismissed the Applicant's complaint against UKCP but upheld her complaint against NSHAP on the basis that but for her sex she would have been treated differently in relation to her attempts to obtain UKCP registration. They stopped short of saying, in terms that she would have succeeded in that aim but for the discrimination.
4. The question of remedies for that unlawful discrimination was adjourned to a further hearing which came before the same Employment Tribunal on 15 December 2000.
5. Prior to that remedies hearing taking place the Applicant's representative, Mr Keter, served on NSHAP, hereafter referred to as the Respondent, a Schedule of the losses claimed, a witness statement by the Applicant and a substantial bundle of documents.
6. Material to the appeals before us is the Applicant's claim for past and future loss of earnings caused by the Respondent. It was her case that but for the unlawful discrimination she would have achieved registration with UKCP and as a result would have expanded her practice by 4 NHS sessions per week and 13-15 private clients per week, thereby increasing her annual turnover to a minimum of £60,000 pa. In particular, she contended that from and since 1 April 1999 former GP fundholders were not permitted to refer NHS patients to non-UKCP registered practitioners.
7. To put that figure in context, her annual accounts show turnover of £13,110 for the year ending 5 April 1996, £19,833 in 1977, £20, 924 in 1998 and £25,292 in 1999. Her total claim for past and further loss of earnings was calculated at £385,883, based on her claimed loss to the date of the remedies hearing and 4 years future loss thereafter.
8. A draft schedule, with documentation was submitted to the Respondent on 25 October 2000. The Respondent did not accept the basis of calculation advanced on behalf of the Applicant and submitted a detailed list of questions by letter dated 22 November 2000. Mr Keter responded to those enquiries by letter dated 4 December 2000.
9. At the remedies hearing the Applicant only gave oral evidence. The Employment Tribunal admitted into evidence a witness statement prepared by Ms Pengally, the Secretary to the Respondent. She explained that she was unable to attend the hearing because she had an appointment with her autistic son.
10. In that witness statement Ms Pengally contends that the Applicant did not have the capability to achieve UKCP registration. She also referred to conversations which she had had with unnamed practitioners which, she avowed, tended to show that UKCP registration had little if any effect on the number of patients, private or NHS, referred to a practitioner.
11. It is against that background that we turn now to the Employment Tribunal's remedies decision and reasons. The Employment Tribunal reserved their decision at the end of the oral hearing and met in private on 15 January 2001 in order to reach their determination.
12. By their decision they made awards for injury to feelings and the cost of the Applicant's re-training with a view to obtaining UKCP registration. Those items are not now in dispute.
13. It is against the Employment Tribunal's findings as to both past and future loss of earnings that both parties have separately appealed.
14. The Employment Tribunal begin with these general observations at paragraph 4 of their reasons:

"4. The Tribunal found itself in some difficulty in considering this case because in Tribunal's view a great deal of the sums claimed were not substantiated by evidence given to the Tribunal. The Applicant gave evidence as to the extent of her loss and produced figures in accordance with the schedule shown to the Tribunal but did not produce any evidence from accountants to show what the loss which she had suffered might have been. The Tribunal's view was that a large proportion of the sum claimed in respect of loss of wages amounting to some £370,000.00 inclusive of interest was to a great degree speculative. As the Tribunal did not hear evidence on which it could be satisfied that these losses could be substantiated the Tribunal has declined to give an award in respect of the greater pat of this loss. It is however satisfied that the Applicant has suffered some loss as a result of the Respondents failure to register her as a hypnotherapist and it is not prepared to reject the Applicant's claim in total. It has approached the Applicant's claim on the following basis."

They then go on to explain their approach leading to their award under this head of loss of earnings at paragraph 6 of their reasons:

"6 We then come to the question of loss of income. As we said earlier in this decision we found a large proportion of the figures to be so speculative, that we find it impossible to make any award of compensation for loss of income except in one respect which in our view was established. This is in relation to the fact that it seems to be clear from the papers we saw that from 1 April 1999 the National Health Service will not refer patients to hypnotherapist unless those hypnotherapists have achieved registration. It was clear from the papers which we saw that the Applicant has been deprived of the opportunity of receiving an income from NHS patients. We are also satisfied from the evidence which the Applicant gave and from the figures which we saw that the Applicant could expect to receive referrals from four NHS patients per week if she had achieved registration."

They then deal with question of gross or net income and continue:

"This loss we have calculated from 1 April 1998 as it appears to have been from about this date that the NHS referrals dropped off leading to complete cessation of the NHS referrals by the 1 April 1999. Since the Applicant has no chance of receiving NHS referrals until she successfully complete the four year training course and almost three years have elapsed since the 1 April 1998, we propose to give her this loss for seven years. She concluded that she would only have worked 48 weeks in the year. We have decided to take four patients as an average as the numbers were less in the earlier years to allow for the chance that the referrals might in later years have been greater than 4 per week. Accordingly therefore the total loss over this period in the sum of £112,896.00 this is apportioned as to past and future loss in order to allow for the calculation of interest and amounts to £34,774 for past loss up to the 15 January 2001 and £78,122 for future loss for the remainder of the seven year period."

They then deal with interest.

15. In these appeals the Applicant appeals against the Employment Tribunal's refusal to make any award of loss in respect of private patients and the Respondent contends that there was no evidence to support the Employment Tribunal's finding of loss relating to NHS patients. Further Mr Barklem, who appeared below and is the 'Mr Barclay' referred to in the Employment Tribunal's decision, submits that the Employment Tribunal has failed to make all necessary findings of fact and has failed to give adequate reasons for their decision. He also draws attention to the paucity of the Chairman's notes of evidence, particularly in relation to the Applicant's cross-examination and the absence of any oral closing submissions recorded by the Chairman.
16. The debate before us in relation to both appeals has proved valuable. It has crystallyzed in this way in our judgment:

(1) It is quite unclear to us on what basis in law the Employment Tribunal has approached its task. Were they asking themselves whether on the balance of probabilities the Applicant had established a loss in relation to (a) private patients and (b) NHS patients as a result of not being registered with UKCP or were they finding that in relation to private patients no significant loss of a chance had been made out, but that in relation to NHS patients it had, and then gone on to assess that chance at 100 per cent on the Applicant's case?

(2) There is no finding by the Employment Tribunal as to whether, as a starting point, the Applicant would, but for the unlawful discrimination, have achieved UKCP registration as a matter of certainty or whether there was some and if so what percentage chance of success. We note, as Mr Barklem submits, that no reference is made at all to Ms Pengally's evidence in the Employment Tribunal's reasons. Did they accept it, reject it, or were they somewhere in between? What weight, if any, did they attach to that evidence, given that Ms Pengally did not give evidence before them and therefore was not cross-examined? There is no attempt to determine the factual issues raised as between the Applicant and Ms Pengally.

(3) There is no explanation, and in the absence of explanation it appears to us that there is a logical inconsistency between the Employment Tribunal rejecting the Applicant's claim in respect of private patients on the grounds that such a claim was too speculative and upholding the NHS patient claim in full. It is true that on the Employment Tribunal's findings the Applicant was prevented from taking NHS patients after 1 April 1999 as a result of changes in the fund-holding policy. But there was no comparative evidence of the earnings of a UKCP registered practitioner compared with the Applicant, either in relation to NHS patients or private patients. As to the former, although the Applicant said in evidence that she averaged 2 NHS patients per week, that was not borne out by the documentary evidence produced. Did that matter? We are not told.

17. It follows, in our judgement, that this Employment Tribunal's reasons fail to tell the parties why they have won or lost. Meek v City of Birmingham District Council [1987] IRLR 250. That is true for both parties. The Applicant does not know why her claim in respect of private patients was rejected; the Respondent does not know what was the factual basis for the Employment Tribunal's conclusion that the Applicant had lost, on average, 4 NHS patients per week over the relevant 7 years period of past and future loss.
18. It is quite impossible for us to make the necessary factual findings to resolve this matter. Accordingly we are driven to allow both appeals and to remit the question of remedy, limited to the issue of past and future loss of earnings, to a fresh Employment Tribunal for rehearing. At that rehearing the following questions will arise for determination:

(1) what was the chance of the Applicant achieving UKCP registration in 1997 or some other date, but for the Respondent's unlawful discrimination?

(2) Given that there was a chance of registration, how is the loss of the chance, if significant, of (a) increased NHS patients and (b) increased private patients consulting the Applicant as a result of her being registered to be assessed?

19. Only then can this part of the claim be properly quantified.
20. The new tribunal will receive any fresh evidence which may help them to answer the questions which we have formulated and it will be important that they should make all necessary findings of primary fact which lead them to their conclusions.