United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR RYAN CLEMENT (of Counsel) Instructed By: Messrs Thompson Smith & Puxon 4-5 North Hill Colchester Essex CO1 1EB
For the Respondents	MR CLIVE LEWIS (of Counsel) Instructed By: The Commissioners of Inland Revenue Inland Revenue Solicitors Office Somerset House London WC2R 1LB


 


JUDGE D M LEVY QC:

1. Today we have heard an appeal by Mr J D Scott in person ("the Appellant"). The Commissioners of Inland Revenue ("Respondent") are the Respondent to the appeal. The decision arose as a result of proceedings commenced by the Appellant on 23 November 2001, which was followed by a Notice of Appearance on 14 February 2001. A hearing of the Appellant's complaints took place before an Employment Tribunal sitting in Norwich for some 9½ days from 13 May to 23 August 2002. Members met for a discussion on 10 and 11 October. Their decision was promulgated on 14 November 2002. It was a decision running to some 28 pages which analysed the complaints which they had been heard in such a way that there has been no appeal by either party from their findings, a matter on which the Tribunal is to be congratulated. The Tribunal had before it complaints by the Appellant that he had been the subject of sex discrimination which was found to be well-founded. He had made claims for victimisation pursuant to section 4 of the Sex Discrimination Act 1975 which was also found to be well-founded. The Tribunal found that he was discriminated against by reason of his disability and that he was unfairly dismissed and wrongfully dismissed. Two other claims made by him did not succeed, namely, that they found he had not been dismissed by reason of his disability contrary to section 5 of the Disability Discrimination Act 1995, although there had been a breach of the section by reason of failure to consider reasonable adjustments by reason of his disability.
2. There was a remedies hearing held on 20 November 2002. The decision was promulgated on 11 December 2002. It is from that decision that this appeal arises. The Counsel who appear before us are the Counsel who appeared before the Tribunal. We are indebted to them for the assistance each has given us today.
3. The grounds of appeal, lodged on 20 January 2003, ran to some six pages and are found at pages 34 to 39 of our bundle. Subsequent to those grounds of appeal being lodged, on 12 February 2003, directions were given by Judge Ansell on the sift system for the Appellant's appeal to proceed to a full hearing. Thereafter, the Appellant sought to amend and re-amend the grounds of appeal on 9 April and 13 May 2003 respectively. The application to amend was refused by the learned Registrar; there has been no appeal from that decision. Consequently, it is the grounds of appeal as originally lodged which we have to consider today. There was an Answer to those grounds of appeal by the Respondents on 26 February 2003.
4. The extended reasons, in their opening paragraphs, set out why the Appellant complained. We think it helpful to remind ourselves of the first three paragraphs:-

"1 [The Appellant] joined the Inland Revenue at the age of 16. On 31 August 2001 he was dismissed. He brings claims of sex discrimination, victimisation and discrimination by reason of disability (depression), unfair dismissal and breach of contract. The claims arise from his treatment after, in his view, spurious and trivial complaints made by a vindictive young woman, Kristie Fitch, encouraged by managers determined to cause him distress and ruin his career. He avers that they succeeded: it would not have happened to a woman. Further his health was undermined by the refusal of management to investigate her complaints objectively, fairly or reasonably; their refusal to investigate his complaints adequately or not at all and the failure of the most senior managers to address obvious and blatant injustices by repeated and disingenuous attempts to hide behind the voluminous skirts of Civil Service procedure. The respondent wrongfully and cynically settled Miss Fitch's Employment Tribunal claim leaving him, as the second respondent to that claim, without any realistic form of redress or any chance to clear his name.

2 Despite his continued and legitimate protestations he was disciplined, transferred to another office and fined £2,500, an outrageous penalty. After continued and increasingly strident and hysterical written outbursts he was dismissed for 'ill-health'. No attempts were made to comply with Section 6 of the Disability Discrimination Act 1995; he was treated less favourably and dismissed by reason of his disability and by reason of making a protected disclosure as defined by Section 4 of the Sex Discrimination Act 1975. His dismissal was both unfair and wrongful.

3 The respondent denies each and every allegation made by the applicant save that it is admitted that the applicant was disabled within the meaning of Section 1 of the Act at the time of his dismissal. In particular, it is averred that the investigation of Miss Fitch's complaint was carried out in accordance with established procedures and that his complaints of bullying and harassment were similarly treated. The result, however much Mr Scott might disagree with it, was not tainted by sex discrimination. A woman would have been treated the same way. In so far as there were criticisms of the investigation, its adequacy and/or fairness they do not establish sex discrimination or any breach in contract. There was no bad faith. The Revenue was entitled to settle Miss Fitch's Employment Tribunal claim in view of the findings of the internal enquiry and further to discipline Mr Scott. He was fairly and inevitably dismissed for ill health on the basis of medical reports. There were no reasonable adjustments in the circumstances that could be made. The applicant was not dismissed and did not suffer any other detriment by reason of any protected act. In so far as he was warned about his conduct it was as a result of his intemperate, disrespectful and malicious complaints and accusations against other managers."

We read those paragraphs really because of the application for costs which came at the end of the day and on which one ground of appeal is made.

5. The law and its application to the facts of the case are set out in paragraphs 91 to 129 of

the decision. In essence, the Tribunal found that the Appellant was discriminated against in relation to the manner with which a complaint of sexual harassment by the Appellant had been dealt by the Respondent. The detail is found in paragraphs 91 to 106 of the Extended Reasons. He was victimised, in particular, by being dismissed because he had complained about being discriminated against; that is found in paragraphs 106 to 118. The reasons for finding the Appellant's dismissal was unfair are found in paragraphs 123 to 128. The Tribunal found that the Respondent had not dismissed him because of his disability (which was depression) and that there was no breach of section 5(1) of the Disability Discrimination Act. There was, however, discrimination by virtue of the failure of the Respondent to consider reasonable adjustment, under section 6, that is found in paragraphs 119 to 122 of the Extended Reasons.

6. At the remedies hearing a total sum of £98,378 was awarded. As to sex discrimination including victimisation the sum awarded was £91,495.78. For unfair dismissal, it was adjudicated that the Appellant was entitled to compensation for £6,875. For disability discrimination, there was no separate award. No monies were found outstanding for breach of contract by the Respondent.
7. We turn to the grounds of Appeal on which the Appellant appeals. Paragraph 4 reads thus:-

"It is respectfully submitted that having found the injury to feelings set out in the decision of 14 November 2002 at Paragraphs 43-46; 49-61; 96-105; the award of £15,000 was wrong as a matter of law and that the award should have fallen in the highest category available to the Tribunal."

The grounds of appeal made reference to the decision of the EAT, already becoming well- known, in the Chief Constable of Yorkshire Police v Vento [2002] IRLR 177. We have had the advantage of reading the decision of the Court of Appeal in that case, reported as Vento v Commissioners of Yorkshire (No 21) [2003] IRLR 102. There, advice was given to Tribunals, when certain findings of the Employment Appeal Tribunal were considered. The decision of the Court of Appeal was given by Mummery LJ, a former President of this Tribunal.

8. Both the EAT and the Court of Appeal considered that, so far as injury to feelings are concerned, a decision on the amount of compensation awarded would only be upset on appeal if the Employment Tribunal had acted on a wrong principle of law or had misapprehended the facts or reached a perverse decision. This Tribunal as an appellate body is not entitled to interfere with the award, simply, because, they would have awarded more or less than the Tribunal did. That appears at paragraph 51 of the Court of Appeal judgment.
9. Having carefully considered the arguments put forward by both Counsel, we conclude that the Tribunal clearly had regard to the relevant principles as set out in the relevant case law. That appears from paragraph 4 of the decision on remedies. Having themselves decided the liability hearing where full and detailed findings of facts were made in reasons promulgated shortly before the remedies hearing, the Tribunal were clearly very well aware of the facts. In our judgment, it cannot be said that the decision to award £15,000, was perverse. In Vento the Court of Appeal recognised (and we recognise that this assistance was not available to the Employment Tribunal) that £15,000 to £25,000 was the band for the most serious cases where there had been a lengthy campaign of harassment. £5,000 to £15,000 was the normal sums for serious cases which did not merit an award in the highest band and £500 to £5,000 for less serious cases. In each band there has to be considerable flexibility allowing the Tribunal to fix, what is considered to be fair and reasonable, and just compensation in the circumstances of the case. As appears from the Court of Appeal judgment (in paragraph 65 to 68) only in the most exceptional cases should an award of compensation to injury to feelings exceed £25,000 and awards of less than £500 should be avoided, regard has to be had to the overall magnitude of the total sum paid for compensation for non-pecuniary loss.
10. On the facts of the present case, in our judgment, it cannot be said the Tribunal acted perversely when awarding £15,000 as the sum that they considered represented the fair compensation to feelings that they considered the Appellant had suffered having heard and considered evidence. Valiantly, as Mr Clement has tried to persuade us otherwise, we feel that this is within the bands and it cannot be altered on appeal.
11. The second ground on which the appeal was made, was in regard to the sum awarded for psychiatric injuries. It is necessary in the light of the submissions we have heard, to consider the paragraphs 6 to 7 of the findings of the Tribunal:-

"6. We turn to the psychiatric damage. We have the medical reports in front of us. In particular, we refer to Dr Lovett's report, but we take into account Dr East's. We remind ourselves it is difficult to predict when Mr Scott will make a full recovery, given the length of time this case has gone on, the strong sense of victimisation he feels towards his employers, plus the fact, that Mr Scott's wife has experienced considerable stress which, of course, has an effect on Mr Scott. However, there are some brighter aspects to this. His depression and anxiety disorder will show improvement. It is likely that Mr Scott will continue to experience symptoms for at least a year after the conclusion of this case. He is slightly more relaxed now, but as we read further on, it is likely Mr Scott will experience further symptoms primarily caused by asking why it all happened to him in the first place and we quote Dr Lovett "'as a consequence I must conclude that Mr Scott may never make a full recovery from his ordeal, of psychological symptoms, a/though, with time these should become more and more manageable"

7. We think we have quoted enough to indicate that this is a case of psychiatric injury. Looking at the guidelines from the Judicial Studies Board it comes clearly within the category of moderately severe. Had it not been for Dr Lovett's assessment that there was a good chance that the majority of his symptoms of depression will disappear within 12 months, we would have put it at the top of the moderately severe and possibly into the severe category. Although not at the top end, for reasons we have indicated, it comes well off the bottom rung, so to speak. We award another £15,000 in respect of the psychiatric damage."

Mr Clement said that there was no justification for the holding found in the penultimate sentence.

12. We cannot agree with that submission. We were presented with a supplementary bundle, which reduced down from some 700 pages to something under 100. Having considered the documents emanating from Dr Lovett, we were of the opinion that this careful Employment Tribunal was entitled to reach the conclusions it did from the evidence which was before it.
13. The third matter on which the appeal was made was on the amount of the award of aggravated damages. It is common ground that compensatory damages may include an element of aggravated damages where defendants had behaved in high-handed, malicious or insulting or oppressive manner in committing the act of discrimination and that has aggravated the injury to feeling. We were asked to consider Alexander v Home Office [1988] IRLR 190. The headnote reads in part of the report:-

"In the substantial majority of discrimination cases the unlawful conduct will cause personal hurt, in the sense of injury to feelings, or of preventing the plaintiff from working in more congenial conditions, or of preventing the plaintiff from obtaining a better, more remunerative job. However, unless the court can and feels it right to draw an inference that the discrimination will cause a plaintiff "hurt" of a particular kind, the mere fact that a defendant is guilty of racial discrimination is not in itself a factor affecting damages.

Compensatory damages may, and in some instances should, include an element of aggravated damages where, for example the defendant may have behaved in a high-handed, malicious, insulting or oppressive manner committing the act of discrimination (and there is reference to Rookes v Barnard and Broome v Cassell).

Moreover, there is no reason why an award of exemplary damages could not be made in a racial discrimination case, provided the facts of the case fall within the principles laid down in Rookes v Barnard and Broome v Cassell."

14. The Tribunal found here, that an element of aggravated damages was appropriate, because of the way in which the original complaint against the Appellant was handled, and the actions of the managers of the Respondent. They set out their findings in that regard in paragraph 9 of the remedies decision:-

"We turn to the question of whether there are aggravating features. The answer to that is undoubtedly 'yes'. This is not a case where a group of people have all set out from the beginning to the end to show malice towards the applicant. Some have, some haven't. There have been gross breaches of natural justice. There was a totally disproportionate response to a set of claims which, whether spurious or not, were at the lower end of any gradient of seriousness. We have dealt with the matter at some length in our decision. We find the way the original complaint was handled and the actions of the managers to be an aggravating feature in this case. We are also concerned at the conduct, well meaning or otherwise of Mr Banyard and Mr Hitchcock. Mr Hitchcock should have had nothing to do with the final disciplinary hearing in view of his views of Mr Scott. We are also very concerned at the way Mr McKeegan acted at the end. We must not and will not punish the respondents for the failings of their managers. There are no exemplary damages in Tribunals. However, the aggravation in this case has exacerbated the situation so far as the applicant is concerned. We remind ourselves that the applicant's appeals and complaints went right to the very top of the Inland Revenue and nothing discernable happened. We also remind ourselves, and this is very important, that it is easy to fall into the trap of giving awards for aggravated damages in any case where there is victimisation because it tends to follow as a matter of logic that where there is victimisation, someone has acted improperly: the person who decides to cause the detriment has done it by reason of a protected act by the employee. However, there has to be something over and above that, quite clearly. We have looked at the authorities that have been cited to us. We are minded to award something in the order of £10,000 for aggravation in this case, but we reduced it. We are satisfied that a number of people in this case, for instance Mr Ian Ash, whilst we are critical of his actions, was in no way malicious. We are satisfied that Miss Fellowes did not know what she was doing; that is not quite the same thing as being malicious and we are satisfied that others, for instances, Mr Bird, tried to do the best they could in the circumstances. We acquit those at the top of the Revenue of any form of aggravation. They are 'guilty' if that is the correct adjective of non feasance rather than mis feasance. We do not think that adds to the aggravation. We also take into account the applicant. Whilst it is certainly not right that he contributed in the sense that it is understood in the Employment Rights Act there were occasions when his actions and his method of making his feelings known, possibly led to reactions that would not have occurred had he been slightly more amenable in his approach. Be that as it may, there is certainly an element of aggravation, and manifestly so. We award the sum of £5,000. It is often the case when one adds up the individual heads of damage, that it is necessary to reduce the overall sum. We do not see that as necessary in this case. We have separated out the psychiatric element from the injury to feelings and the aggravation is on top of that. A total of £35,000."

15. The Tribunal thus held that £5,000 was an appropriate sum to allow the aggravation that the Tribunal found existed. In reaching that conclusion, they made findings of fact as they were entitled and obliged to do. They took into account that a number of people were involved, who were in no way malicious. They referred to the investigator, Mr Ash, the Initial decision-maker, Ms Fellowes and Mr Bird, the Deputy Director of Personnel in the East Region of the Respondent, to whom the complaint was sent for decision. The Tribunal also found that senior personnel of the Respondent, the Chairman and Deputy Chairman, were not responsible for any form of aggravation. The Tribunal were entitled to conclude that some of the reactions on the part of individuals were the result of the ways in which the Appellant manifested his complaints, rather than because of the sort of practices that constituted aggravation. In our judgment on the facts as found, it cannot possibly be said that the amount awarded was manifestly wrong or outside the bracket of reasonable awards.
16. The fourth head of damages appealed against is that of disability discrimination damages. The Appellant's case is set out in paragraph 7 of the grounds of appeal. Insofar as the claim succeeded, it was a claim that the Respondent was under a duty to consider making adjustments and taking reasonable steps to make those adjustments. That appears from paragraph 122 of the extended reasons of the Tribunal. The Tribunal, however, found as a fact, that that breach of duty did not cause any injury to feelings. That claim, they found, was caused by other factors. The Tribunal were very well aware of the effect on the Appellant of the Respondent's conduct and found that events constituting the discrimination, including the victimisation, caused injury to feelings and psychiatric damage. There is, in our judgment, no basis for concluding that the decision of the Tribunal, on this aspect of the matter, was wrong in law or perverse. They simply found as a fact that the injury suffered was caused by other matters, not the separate failure to consider reasonable adjustments.
17. In that regard, we turn to paragraph 10 of the Extended Reasons where reasons were given. The paragraph concludes:-

"For the avoidance of doubt, the only reason there isn't a separate sum awarded under that head is that we are satisfied that as a matter of causation and, in our view, common sense, the injury to feelings has been caused by other factors and were we to give a nominal sum under that head, it might indeed bring the statute into disrepute."

Like the Tribunal, we were impressed by Mr Clement's best efforts to promote the Appellant's case, but we did not feel that the judgment of the Tribunal could be faulted.

18. The next ground of appeal was against the failure of the Employment Tribunal to award costs to the Appellant, in respect of the hearing in which the Appellant was largely successful. We understand that application was made for costs in the sum of £100,000 and that was dismissed. The reasons for that are set out in paragraphs 12 to 17 of the Extended Reasons of the Employment Tribunal. In those paragraphs, the Tribunal clearly directed themselves as to the relevant law; they set out the relevant Rule in paragraph 12. They clearly considered, on the facts, whether the Respondent acted reasonably in defending the case, and, they found as a fact that the Respondent did. They considered the conduct of the Respondents as the case unfolded, and found as a fact that the Respondent did not do anything unreasonable. This appears from paragraphs 15 to 17 of the remedies decision. The submission is advanced by the Appellant that, because the Tribunal said it was unusual to award costs in these proceedings, they simply failed to consider the application on the merits and the criteria to award costs. In our judgment, that submission cannot be sustained.
19. The final point which arises on this appeal, was one which has given us some concern, although it was inadequately pleaded in the Notice of Appeal. We return to the grounds of appeal, where, under the heading "Recommendations", the Notice of Appeal as drafted read thus:-

"9.1 Given the far reaching implications of this case, the Appellant respectfully appeals against the Tribunal's decision not to make formal recommendations. In particular the Appellant submits that recommendations would have been appropriate with regard to:-

9.1.1 Specific flaws in Revenue procedures, particularly the definition of sexual harassment.

9.1.2 That the Respondent should fairly consider and progress the Appellant's outstanding complaints and grievance and inform the Appellant of the outcome of his complaints as the rules require.

9.1.3 That the respondent rectify the defamatory announcement to staff in July 2000 by issuing sufficient details of the result of the Judgement to inform them of the outcome of the trial and the findings exonerating the Applicant."

By "trial" we understand this is a reference to the proceedings before the Employment Tribunal and, possibly, here. In the course of making his submissions, Mr Clement withdrew 9.1.1 and 9.1.2 and withdrew the word "defamatory" in the 9.1.3. At our request, we were taken to the announcement to staff, which was in an E-mail to the Colchester office which appears to be that referred to in paragraph 9.1.3.

20. The grounds of appeal sought a very limited recommendation that the matter should be remitted to the Employment Tribunal for recommendation to be made. It was clear from the submissions of Mr Clement, that his client considered something wider was appropriate. We cannot of course go beyond what was sought in the Notice of Appeal. We do not consider that any action is called for by us in remitting the matter to the Employment Tribunal, both in the light of the limited amount which was sought, and because it would be difficult to find out what steps had been taken in respect of that. We were, however, told by Counsel for the Respondent, that the following steps have been taken by the Respondent.
21. First, through the Chairman, Sir Nicholas Montague, the Respondent had written apologising to the Appellant for the distress he has suffered and acknowledging the deficiencies in the way the Respondent dealt with this matter. We were shown, as was Mr Clement, a copy of the letter sent to his client on 16 December 2002. Secondly, we were told that the Inland Revenue is undertaking a review of its grievance related procedures. Thirdly, we were informed that Mr Lewis's instructing solicitor understood that everyone complained about by the Appellant and referred to adversely in the decision on liability of the Employment Tribunal, had seen a copy of the decision with the possible exceptions of two employees, who were no longer employed by the Respondent; the position regarding the third employee was not known. Fourthly, the Chairman of the Revenue had himself considered the decision, considered what lessons the Respondent could draw from it and had arranged for a review of the Board's procedures relating to complaints made in correspondence. Fifthly, the Chairman had written to Mr Banyard and Mr McKeegan, the main persons about whom complaints had been made; the gist of the letters to Mr McKeegan and Mr Banyard was to draw attention to the fact that the Appellant was successful before the Employment Tribunal, that things had gone wrong, and there was a need to consider the Employment Tribunal's findings and the lessons to be drawn from them. Sixthly, Mr McKeegan was asked to draw the attention of other relevant employees to the findings and to ask them to reflect on the findings. We were told that Mr McKeegan has had meetings with staff involved.
22. In the circumstances, we hope that the Appellant will be satisfied that steps have been taken by the Respondent to learn from the events from which he was the most unhappy sufferer. In all the circumstances of this case, however, we dismiss this appeal for the reasons we have given.