United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR B UDIJE (Of Counsel) Instructed by Legal Services Northamptonshire County Council PO Box 104 County Hall Northampton NN1 1AW
For the Respondent	MR O SEGAL (Of Counsel) Instructed by Thompsons Price House 37 Stoney Street The Lace Market Nottingham NG1 1NF


 


JUDGE REID QC

1. This is an appeal against two decisions of an Employment Tribunal held at Bedford. Those decisions were promulgated on 2 May 2000 and 12 July 2000. By the first of those decisions the Tribunal held that the Applicant, Ms Doughty was unfairly dismissed by Career Path (Northamptonshire) Ltd on 31 August 1999 and that Ms Doughty was discriminated against by Career Path on the grounds of her disability.
2. By the second of the decisions the Tribunal by consent awarded her a basic award of £1980 a compensatory award in respect of unfair dismissal of £2885, monetary compensation in respect of disability discrimination of £2635 and interest of £105.40. In addition, not by consent, an award of £4000 was made in respect of injury to feelings arising from the disability discrimination together with interest in the sum £276.92. Against those decisions Career Path appeals.
3. The way in which this case came about is follows. In August 1992 Ms Doughty joined Career Path as a Careers Officer. By June 1997 she was suffering from continuing spinal problems which caused her serious back pain. Although she was receiving support and assistance including adjustments to her working hours, the provision of a special chair and the construction of a ramp she was still finding life very difficult. As a result of this she was appointed as a training officer because the post did not require a lot of travel. She was being paid for full-time work but was in fact only expected to work 25 hours per week.
4. In April 1998 Ms Tansi Harper took over as Chief Executive of Career Path. On 7 August 1998 Career Path's medical adviser, Dr White, examined Ms Doughty and observed that there had been a "steady deterioration" of her back with reduced movement, night pain and difficulty coping at work and at home. He suggested that if her disability progressed she would be unfit for work. The report disclosed that the subject of ill health retirement was gently broached.
5. Ms Doughty had been considering ill health retirement for some time. On 24 August 1998 Ms Doughty began a period of sick leave. Under her contract she was entitled to six months on full pay and a further six months on half pay. She never returned to work in the office again.
6. As a means of keeping in touch with what was going on in the office, Ms Doughty decided to undertake some work from home. This was irregular and in any event she never worked more than 15 hours per week. In November 1998 Ms Doughty was feeling a lot better. She met Ms Harper to discuss her future employment options, including retirement on grounds of ill health and being re-engaged by Career Path on a part-time basis.
7. In March 1999 Ms Doughty met with Career Path again to discuss her future employment. She told Career Path that she wished to work 4 hours instead of 15 hours. On 23 June 1999 Career Path received a copy of another doctor's report which confirmed what was known to be the case, namely that by reason of her ill health Ms Doughty was permanently incapable of discharging efficiently the duties of her employment as a training officer.
8. On 24 June 1999 Mrs Webb of Career Path contacted Ms Doughty to discuss the report. In the course of the discussion Ms Doughty confirms that she would retire. On 28 June 1999 Ms Harper, Mrs Webb and Ms Doughty went out to dinner to mark Ms Doughty's retirement. The details of retirement were discussed including the likely retirement date. At Ms Doughty's suggestion notice of termination was delayed to the end of August 1999 to allow for an enhanced pension by reason of the completed year's service.
9. On 6 July Career Path wrote to Ms Doughty giving her notice of termination of contract on grounds of ill health. On 7 July Mrs Webb telephoned Ms Doughty to tell her the notice of termination was on its way. On 9 July Mrs Webb wrote to the Pension Department of Northamptonshire County Council notifying him of Ms Doughty's early retirement by reason of her ill health.
10. On 13 July Mrs Webb wrote to Ms Doughty about her outstanding annual leave and on 15 July visited her at home. Ms Doughty expressed dissatisfaction that the letter of 6 July did not express any recognition or appreciation of her service. Ms Doughty also asked Mrs Webb to set out her options in writing.
11. On 27 July in response to that request Ms Harper wrote setting out a brief history of events and concluding as follows:

"I now understand you wish to discuss further alternatives following retirement due to ill health, and so would welcome your ideas prior to us meeting to discuss them. Can I suggest Monday 16th for that meeting."

12. On 6 August there was a meeting at which Ms Matthews-Lane and Mrs Webb met Ms Doughty at her home. Mrs Matthews-Lane was Ms Doughty's line manager. At the meeting Ms Doughty expressed concerns about Ms Harper's letter of 27 July, said she felt boxed into a corner and manipulated and expressed fears about the suggestions she would be limited to a 4 hours per week contract.
13. Thereafter, Ms Doughty asked that all further contact be made through her trade union representative. It proved impossible to reach any agreement with Ms Doughty about further work and on 17 September Ms Doughty's originating application was lodged in the Employment Tribunal.
14. Had notice not been given to Ms Doughty she would have ceased to receive any payment from 24 August 1999, the anniversary of the start of her sick leave. The effect of giving notice to her was that under the ill health retirement provisions of her contract she would receive full pay until her retirement and that thereafter her pension would become payable. Since she was only 45 years of age, the pension would not have become payable under the scheme unless she was dismissed on the grounds of ill health.
15. The Tribunal made very careful findings of fact. In some areas they accepted the evidence of Ms Doughty in other, and a majority, of instances where there was conflict they rejected her evidence. The Tribunal held that Ms Doughty had been dismissed. Against that decision there is now no appeal, as a result of our earlier ruling that the point was not open to Career Path. The Tribunal went on to say:

"It is clear that the Respondents followed no form of procedure whatever in arriving at the decision to dismiss Ms Doughty. Their lack of clarity has led to confusion in the Applicant's mind as to the Respondents' intentions. Whilst it is clear from the Originating Application that the Applicant knew she was going to retire, there is no evidence that the Applicant herself – and still less Mrs Webb or Mrs Harper – understood that under the terms of the Local Government Superannuation Scheme a dismissal was a pre-requirement of ill health retirement. In the muddle and confusion that the Respondents had created, we can come to only one decision, and that is that the dismissal was unfair."

16. The Tribunal went on to say:

"It is clear that the dismissal was by reason of Ms Doughty's disability. Section 4(2)(d) Disability Discrimination Act 1995 demonstrates that dismissal itself is a detriment which amounts to discrimination. We must therefore find that the Respondents discriminated against Ms Doughty on the grounds of her disability in the dismissal.

We also find that the Respondents discriminated against Ms Doughty in their failure to follow their own disability procedure. They further discriminated against her in failing to put forward specific proposals for Ms Doughty's future employment: Ms Doughty had been left in a state of uncertainty and ignorance about her future, which we find to have been wholly unnecessary."

17. Further on in the decision at paragraphs 17 and 18 the Tribunal said this:

"17. Although we have found that Ms Doughty was unfairly dismissed, and that she was discriminated against on the grounds of her disability, we anticipate that assessing compensation will not be straightforward. Ms Doughty will be entitled to a basic award: and in view of our finding of unfair dismissal, she will be entitled to seek reinstatement or re-engagement. But it is likely that compensation will relate only to the extent of work which Ms Doughty would have been capable of continuing to undertake after 31^st August. However, any such income may well have to be offset against any resulting reduction in pension entitlement that there might have been.

18. There will be similar difficulties relating to any claim for monetary compensation arising out of our finding of discrimination on the grounds of disability. But Ms Doughty will be entitled to seek an award for injury to feelings."

18. In fact, because at the remedy hearing all the figures were agreed apart from the figure in respect of injury to feelings, we are not concerned with the quantum of any award other than that for injury to feelings. We should record that it seems to us likely that the figures agreed by way of compensation were extremely generous to Ms Doughty but that is no concern of ours.
19. It was submitted on behalf of Career Path:

(1) As a general principal procedural deficiency does not make a dismissal automatically unfair:

In determining whether a dismissal is fair or unfair, the procedure adopted is only one of the factors to be considered.

(2) In this case the procedural defects identified were:

(a) lack of clarity and

(b) failure to acknowledge that the ill health retirement was only the first stage of the agreement by which it was anticipated that Ms Doughty would return to do part-time work after her retirement.

(3) The fairness or unfairness of the procedure has to be assessed on a case by case basis. In the present case the procedure adopted was in all the circumstances reasonable and fair.

(4) The Extended Reasons show that the Tribunal failed to apply the statutory definition of discrimination in Section 5(1) of the Disability Discrimination Act 1995. The Tribunal failed to consider whether Career Path justified Ms Doughty's dismissal. Further the Tribunal failed to identify how Career Path's failure to follow its disability procedure and to put forward specific proposals for her future employment disadvantaged or discriminated against Ms Doughty.

(5) The findings of unfairness and discrimination were illogical.

(6) The award of £4000 in respect of injury to feelings was made on an erroneous premise and contrary to section 8(2)(b), (3) and (4) of the 1995 Act. In so far as the award reflected the Tribunal's view that Career Path had not apologised, it was wrong in fact because there was an apology in Career Path's letter of 12 August 1999 and in any event the lack of an apology cannot form the basis of an award for injury to feelings.

20. On behalf of Ms Doughty it was submitted:

(1) The Tribunal found that notwithstanding an agreement that Ms Doughty would take ill health retirement and then return and continue to work in a part-time capacity, the Appellant without reason or justification did not propose or determine the nature or extent of the part-time capacity before the dismissal letter was sent, a considerable time after the agreement. The action of Career Path in dismissing Ms Doughty was unfair both in a substantive and in a procedural sense. The dismissal without any attempt to agree her future part-time work had a genuine detrimental effect on her ability to continue working for Career Path albeit in a different capacity. In a procedural sense the dismissal was unfair because Career Path did not conduct itself fairly in respect of its acts and omissions before dismissal.

(2) In any event a dismissal can be unfair as the result of procedural failures on the part of the employer regardless of whether, but for those failures, the employer would have able fairly to dismiss the employee. Further a dismissal is very likely to be unfair if the employer has not complied with its own relevant procedures.

(3) The Tribunal found that the dismissal itself was an act of discrimination and also found that some of the pre-dismissal actions by Career Path independently constituted unjustified failures to make adjustments within section 5(2) and (6) of the Disability Discrimination Act 1975.

(4) The decision does not cite all the relevant sections of the Act but clearly shows that the Tribunal was finding that the dismissal was less favourable treatment and was not in the circumstances justified.

(5) The appeal against the injury to feelings award was misconceived. A Tribunal's job is to assess the injury to feelings caused by the unlawful act of discrimination. In this instance in so far as there was a letter of apology, it was not for the failures of which Ms Doughty complains and by which she was hurt, but simply for the wording and effect of Career Path's letter of 27 July 1999. In any event it appears that Career Path did not seek to rely on the apology letter at the remedy hearing and could not be heard to do so before the Employment Appeal Tribunal. Furthermore the Employment Tribunal was simply assessing the level of injury to Ms Doughty's feelings and if the "apology" did not have any real effect, the Employment Tribunal could not rely on the fact of the apology to reduce the amount of the award.

21. This was a case in which the employer failed to follow its own procedures. The failure to follow its own procedures was all the more unfortunate because the person being dismissed was the author of those procedures. The procedures provided for consultation, for formality and for the person to be dismissed to have the opportunity of being accompanied by a friend or colleague. None of this happened in this case. The dismissal took place against the background of an agreement by which Ms Doughty was to be re-employed for such part-time work as she was able to do following her retirement on ill health grounds.
22. No doubt Career Path were acting with the best of intentions in trying to ensure that Ms Doughty would be able to obtain her pension early and at the same time be re-engaged to do such work as she was fit for. Unfortunately Career Path set about its task in a very cack-handed manner. We cannot agree that the procedure which it adopted was fair either procedurally or substantively in the circumstances of this case.
23. What Career Path did inevitably created muddle and confusion because it did nothing to address Ms Doughty's concerns about her future part-time employment. She was left in a state of uncertainty and ignorance about her future which was wholly unnecessary, as the Tribunal found. The Tribunal was, in our view, correct to find that she had been unfairly dismissed.
24. So far as disability discrimination is concerned, the Tribunal might perhaps have spelt out the law more fully. However, it is clear from paragraph 13 of their decision that they found that the dismissal itself was a detriment, as by virtue of section 4(2)(d) of the Act they were bound to do and it is implicit in the paragraph that they held that the dismissal was not justified. The reason that the dismissal was not justified was in part because of the failure of Career Path to comply with its own procedures and the manner in which the dismissal was conducted and in part because the dismissal should have formed part of a package including an offer of re-engagement for part-time work. This it did not do. The result was, as the Tribunal said at paragraph 14, that Ms Doughty was left in a state of uncertainty and ignorance about her future which was wholly unnecessary.
25. When the decision was read as a whole it is clear that the Tribunal have correctly applied the law to the facts as they have found them and that the Tribunal was entitled to hold that there was disability discrimination against Ms Doughty.
26. So far as the award of damages is concerned, the amount of the award was essentially a matter for the Tribunal. At the remedies hearing Career Path contended for £1000 and Ms Doughty for £5000. The Tribunal, as it was entitled to do, looked at the medical evidence, took a view of the witnesses, in particular Ms Doughty, and reached a view. The Tribunal was perfectly entitled to take the view that the letter of 12 August did not amount to an apology for the unfair dismissal or the disability discrimination and to discount it in their deliberations. Whilst other Tribunals might have reached a figure which was either higher or lower than the figure which this Tribunal awarded, we cannot see that there was any error of law in the amount which was fixed, nor can we see that the figure fixed was so extraordinary as to entitle the Employment Appeal Tribunal to intervene, even if it wished to do so. In our judgment the figure fixed by the Tribunal cannot properly be attacked.
27. In these circumstances the appeal is dismissed.