United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For Dunnachie and Dawson	Mr Anthony White QC and Mr Tom Linden instructed by Employment Rights Unit, 1 Mabledon Place, WC1H 9AJ; and Fulham Legal Advice Centre, 679a Fulham Road, SW6 5PZ
For Williams For Kingston upon Hull City Council, Stonham Housing Association and Southampton Institute	Mr Roderick Moore instructed by Messrs White & Bowker, Turnpike House, Tollgate, Chandlers Ford, Eastleigh, SO53 3TG Mr John Bowers QC and Miss Joanna Heal instructed by Kingston upon Hull Legal Services Dept, The Guildhall, Alfred Gelder Street, Kingston upon Hull, HU1 2AA; Trowers & Hamlins, Sceptre Court, 40 Tower Hill, EC3N 4DX; and Paris Smith & Randall, 1 London Road, Southampton, SO15 2AW;


 


THE HONOURABLE MR JUSTICE BURTON (PRESIDENT):

1. Since the decision in the House of Lords in Johnson v Unisys Ltd [2001] UK HL 13 [2001] ICR 480 ("Johnson") there have been cases in the Employment Tribunals in which applicants claiming unfair dismissal have been including, in addition to claims for compensation for economic loss, claims for compensation for what can generically be called non-economic loss. This latter head of loss has, in the course of the hearing before us, been exemplified or described by reference to different cases in a number of different ways, and under a number of different headings. These include physical injury, recognised psychiatric illness (including mental illness, neurosis and personality change), 'non-psychiatric illness' and (in alphabetical order) anger, anguish, anxiety, damage to family life, damage to reputation, depression, disappointment, frustration, grief, humiliation, hurt, impact on family life, inconvenience, injury to feelings, loss of congenial employment, loss of self-confidence, loss of esteem, mental distress, mental suffering, stress, upset and worry.
2. Some tribunals have awarded such compensation, concluding that they are entitled, or obliged, to do so, since Johnson. Some have declined to do so, concluding that they were not bound by Johnson to do so and had no jurisdiction to do so. Examples of awards in respect of such non-economic loss drawn from the cases before us, and from other decisions in the Employment Tribunals known to or discovered by Counsel before us, have ranged between £250 and £10,000.
3. This is the first time such decisions have been considered by the Employment Appeal Tribunal. Appeals and cross-appeals which were proceeding before this Tribunal on what may loosely be called a Johnson point were collected together to be heard at an Appointment for Directions before me on 17 February 2003. It was hoped that this caught all such appeals, although one (Truelove) escaped the net and has subsequently been stayed pending this decision. At the Appointment for Directions six cases (including six appeals and two cross-appeals) were listed together for consideration. With the exception of one case (Solieman), which I was persuaded did not have sufficient identity of issues to be tried at the same time, but in respect of which I directed the service of an agreed statement of factual issues for our assistance at this hearing, I made an order for all such appeals to be heard together on 8 and 9 April. Two of the cases were disposed of by agreement between February and the hearing, although again we have had the benefit of the facts in those cases as illustrative of the issues.
4. The three cases that have remained live, and have formed the basis of the two-day hearing, are as follows:

(i) Kingston upon Hull City Council v Dunnachie ("Dunnachie"). An award of £10,000 was made for injury to feelings. The Employers appeal.

(ii) Williams v Southampton Institute ("Williams"). The Tribunal concluded that it had no jurisdiction to award compensation for non-economic loss. The Applicant appeals.

(iii) Dawson v Stoneham Housing Association Ltd ("Dawson"). A sum of £8,000 was arrived at by the Employment Tribunal for injury to feelings, by reference to medical evidence relating to the episode of depression suffered by the Applicant. This was reduced to 40% (£3,200) by reference to the aetiology of the condition evidenced in the medical report. The Employers appeal, and the Applicant cross-appeals in respect of the quantum of the sums awarded for economic and non-economic loss.

5. The Order I made in relation to each of the appeals to be heard on 8 and 9 April included the following:

(i) That one advocate should present the case on either side, that is, one for the Employers' side and one for the Applicants' side. We had the good fortune that two very able and experienced leading counsel had already been instructed in one of the cases, John Bowers QC for an Employer and Anthony White QC for an Applicant (Mr Moore has represented Mr Williams, but made no separate submissions). By co-operation on all sides, and assistance from an able team of juniors, respectively Joanna Heal and Tom Linden, and diligent solicitors, Mr Bowers QC and Mr White QC have been able to present the case fully, persuasively and concisely in the allotted two-day period (subject to the submission, by agreement, by Mr Bowers QC and Miss Heal of a written submission containing those parts of their reply for which there was not quite time at the end of the second day). We are extremely grateful for the considerable efforts of all the lawyers, and indeed also for the co-operation of the parties themselves.

(ii) That the issues to be considered at the full hearing were those set out in a schedule attached to the Order ("the Schedule of Issues"). We shall set these out below. They emerged from my suggestions and then after discussion between Counsel at the Appointment for Directions, but were intended only as a framework rather than as limiting the argument.

(iii) That the parties were to produce an agreed summary of the material facts and issues in relation to each case, within a specified time scale. This was done, and considerably simplified our task.

(iv) That the parties were to co-operate in compiling and agreeing an index and paginated bundle of material documents, and also a consolidated list of authorities and of any foreign statutes and decisions and any academic writings, lodging the bundles in accordance with a time scale. This too was complied with. For the purposes of this hearing, therefore, we have been able to consider the facts and issues in the three cases (and so far as necessary in the three other cases originally listed on 17 February), issues derived from a helpful schedule of other known Employment Tribunal decisions dealing with Johnson issues since the House of Lords' decision, compiled by Mr Bowers QC and Miss Heal, all relevant UK authorities and statutory provisions and a number of academic publications, and, by dint of a considerable amount of research co-operatively on both sides, we have had reference to relevant decisions and statutory provisions in foreign jurisdictions.

6. The Scheduled Issues were as follows:

"List of Issues

1A. Can compensation for non-pecuniary loss be recovered for unfair dismissal in an Employment Tribunal in respect of –

(i) physical injury

(ii) psychological injury

(iii) stress or depression

(iv) mental distress, humiliation, injury to feelings, damage to family life and/or injury to reputation

or by way of aggravated damages?

Is it material that s3(3) of ETA 1996 and/or Art 3 of S.I. 1994/1023 prevent recovery in an Employment Tribunal of damages for personal injury by way of a breach of contract claim?

1B. Can compensation for pecuniary loss be recovered for unfair dismissal in an Employment Tribunal in respect of loss resulting from:

(i) physical injury

(ii) psychological injury

(iii) stress or depression

(iv) mental distress, humiliation, injury to feelings, damage to family life and/or injury to reputation.

2. If recoverable in respect of either or both, is it recoverable:

(i) arising out of or resulting from the manner of dismissal and/or

(ii) arising out of or resulting from the fact of the dismissal and/or consequent unemployment.

How is such distinction, if material and/or to be maintained, to be established and/or does the existence of such distinction and/or the difficulty of establishing it raise issues as to the recoverability of such compensation at all?

3. If to be recoverable, how would it be pursued in an Employment Tribunal? Is medical evidence/a medical report necessary? How is contested evidence to be assessed?

4. Is there any difference in principle or in approach where:

(i) liability in respect of unfair dismissal is conceded?

and/or

(ii) The claim arises out of alleged constructive dismissal: in particular where the non-pecuniary loss is alleged to be sustained following a repudiatory breach but prior to the employee's resignation in response to such breach, such resignation constituting the determination of his or her employment (s91(1)(c) ERA 1996)?

5. How is any such compensation, if recoverable, to be assessed?"

7. In approaching our consideration, we have found it convenient to address the central issues as follows:

(i) What has the law been in respect of recovery of such non-economic loss?

(ii) What is the effect of Johnson?

(iii) Is non-economic loss now to be recoverable for unfair dismissal?

8. The relevant sections of the Employment Rights Act 1996 ("the 1996 Act") relating to compensation for unfair dismissal are as follows:

"111 (1) A complaint may be presented to an [Employment Tribunal] against an employer by any person who is unfairly dismissed by the employer.

112 (1) This section applies where, on a complaint under section 111, an [Employment Tribunal] finds that the grounds of the complaint are well founded.

(2) The tribunal shall –

(a) explain to the complainant what orders may be made under section 113 [viz: orders for reinstatement in accordance with section 114 or re-engagement in accordance with section 115] and in what circumstances they may be made, and

(b) ask him whether he wishes the tribunal to make such an order.

(3) If the complainant expresses such a wish, the tribunal may make an order under section 113

(4) If no order is made under section 113, the tribunal shall make an award of compensation for unfair dismissal (calculated in accordance with sections 118 to 127A to be paid by the employer to the employee.

118 (1) … where a tribunal makes an award of compensation for unfair dismissal … the award shall consist of -

(a) a basic award … and

(b) a compensatory award.

123 (1) Subject to the provisions of this section and s … 124 … the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer.

(2) The loss referred to in subsection (1) shall be taken to include –

(a) any expenses reasonably incurred by the complainant in consequence of the dismissal, and

(b) subject to subsection (3), loss of any benefit which he might reasonably be expected to have had but for the dismissal.

(3) The loss referred to in subsection (1) shall be taken to include in respect of any loss of –

(a) any entitlement or potential entitlement to a payment on account of dismissal by reason of redundancy … or

(b) any expectation of such a payment,

only the loss referable to the amount (if any) by which the amount of that payment would have exceeded the amount of a basic award (apart from any reduction under section 122) in respect of the same dismissal.

(4) In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland….

(6) Where the tribunal finds that the dismissal was to any extent caused or contributed to by an action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding. …"

What has the law been?

A. The position in Employment Tribunals prior to Johnson.

9. Prior to Johnson, all claims and determinations in the Employment Tribunals (and consequently on appeal from such tribunals in the Employment Appeal Tribunal and higher appellate courts) have related to recovery for unfair dismissal only of economic loss and not of non-economic loss (or what might in the ordinary common law courts be referred to as "general damages"). Although in his judgment in McCabe v Cornwall County Council [2002] EWCA Civ 1887 [2003] IRLR 87, a post-Johnson decision of the Court of Appeal, Auld LJ seems to have been (at paragraph 23) under the apprehension that there had been decisions of Employment Tribunals awarding non-economic loss prior to Johnson, it is common ground between the very experienced teams on both sides before me, a view shared by this Tribunal, that such was not the case, and none have been produced. The decision which has been regarded as determinative, and to which express reference was made in the speech of Lord Hoffmann in the House of Lords in Johnson as having "laid down that only financial loss could be compensated" is that of the National Industrial Relations Court, presided over by Donaldson P, in Norton Tool Co Ltd v Tewson [1972] ICR 501. The relevant passage of Donaldson P's judgment, construing what was then s116 of the Industrial Relations Act 1971, which is in all material respects the same as s123, is at pp 504-506:

"The amount to be awarded is that which is just and equitable in all the circumstances, having regard to the loss sustained by the complainant. "Loss" in the context of section of 116 does not include injury to pride or feelings. In its natural meaning the word is not to be so construed, and that this meaning is intended seems to us to be clear from the elaboration contained in section 116(2). The discretionary element is introduced by the words "having regard to the loss". This does not mean that the court of tribunal can have regard to other matters, but rather that the amount of the compensation is not precisely and arithmetically related to the approved loss … The circumstances of the dismissal were relevant only if they were such as to cause or to be likely to cause future loss. Injury to the employee's pride or feelings is not loss and is irrelevant … We need only consider whether the manner and circumstances of his dismissal could give rise to any risk of financial loss at a later stage by, for example, making him less acceptable to potential employers or exceptionally liable to selection for dismissal."

10. Norton Tool has been regularly and universally followed since. This was not simply by the National Industrial Relations Court before its demise in 1974 (e.g. Wellman Alloys Ltd v Russell [1973] ICR 616 and Robert Normansell (Birmingham) Ltd v Barfield [1973] 8 ITR 171 (where he ruled out "loss of job satisfaction") per Donaldson P, and Vaughan v Weighpack Ltd [1974] ICR 261 per Sir Hugh Griffiths) but by Employment Tribunals in England and Wales and Scotland, and in the Employment Appeal Tribunal, ever since: as recently as 15 May 2001 in the Court of Appeal (some seven weeks after the House of Lords had delivered judgment in Johnson but before it was reported in the law reports, and no reference is made to it) Potter LJ, giving the judgment of the Court, in O'Donoghue v Redcar & Cleveland Borough Council [2001] IRLR 615 said, at paragraph 71:

"Compensation for unfair dismissal is provided for in Chapter II of the Employment Rights Act 1996. Section 112 provides that compensation should be calculated according to ss118-127A. There is no compensation for injury to feelings or the manner or dismissal, unless that gives rise to financial loss: see Norton Tool v Tewson [1992] IRLR 86."

The House of Lords cited Norton Tool for the proposition, by reference to it and to s123 of the 1996 Act, that financial loss can be recoverable resulting from damage to reputation in respect of unfair dismissal, without disapproval, in Malik/Mahmud v BCCI [1998] AC 20 at 39 and 52.

11. Such operation of unfair dismissal proceedings for the past thirty years falls to be contrasted with the express provisions in relation to discrimination. Section 66(4) of the Sex Discrimination Act 1975 (the "SDA"), section 57(4) of the Race Relations Act 1976 (the "RRA") and section 8(4) of the Disability Discrimination Act 1995 ("the DDA") all provide in materially similar terms that "for the avoidance of doubt it is hereby declared that damages in respect of an unlawful act/compensation in respect of discrimination in a way which is unlawful may include compensation for injury to feelings whether or not they/it includes compensation under any other head". Stuart Smith LJ in Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] ICR 1170 at para 11 makes clear that "section 57(4) [of the RRA] adds a head of injury for which compensation is payable since at common law a claimant cannot as a rule recover damages for injuries for feelings, save in defamation and false imprisonment". Mr Bowers QC points out that there is no reference to loss at all in the discrimination provisions, but rather to paying compensation, a wider and more flexible concept. May LJ in Alexander v Home Office [1988] ICR 685 at 692 pointed out that "damages for this relatively new tort of unlawful racial discrimination are at large, that is to say they are not limited to the pecuniary loss that can be specifically proved". That falls to be contrasted with the requirement in section 123(1) of the 1996 Act that the compensatory award must have "regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer".
12. There is a similar such contrast in relation to the operation and construction of sections 146 to 149 of the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULRA") which relate to action short of dismissal on grounds related to union membership or activity. In the event of a successful complaint that an employee has been subjected to any detriment as an individual by an act or any deliberate failure to act by his employer for one of the prohibited purposes, then by s149 the tribunal may make an award of compensation in respect of the act or failure complained of, and by s149(2):

"The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to the infringement complained of and [our underlining] to any loss sustained by the complainant which is attributable to the [act or failure] which infringed his right."

13. In Cleveland Ambulance NHS Trust v Blane [1997] ICR 851 the EAT per Judge Peter Clark upheld an award by a tribunal which included compensation for injuries to feelings as well as pecuniary loss, contrasting the position with that relating to compensation for unfair dismissal, at 859 sub-paragraph (4):

"It is nothing to the point that an award for injury to feelings cannot be recovered in a wrongful dismissal or unfair dismissal claim. They are different claims, compensated in different ways. We do not accept that a complaint under section 146(1) of the Act of 1992 can simply be categorised as less serious and therefore cannot allow of a head of compensation not provided for in claims of unfair dismissal or wrongful dismissal. Apart from the different wording of the section, the intention behind it is clear; an employee who is unfairly dismissed would normally suffer pecuniary loss, and that, Parliament has decided, will adequately compensate him for the wrong. In a case of action short of dismissal it may very well be that he can point to no pecuniary loss; nevertheless, Parliament has decided that he should be able to recover financial compensation "having regard to the infringement complained of". That must, in our judgment, include injury to his feelings occasioned by the unlawful act."

14. There is a similar distinction to be found in the wording of s49 of the 1996 Act, which provides a remedy where a complaint has been proved that an employee has been subjected to a detriment in the context of his having made complaints or claims relating to health and safety, Sunday working and time off for reasons dealt with in sections 44, 45, 46, 47, 47A and 47C of the 1996 Act. In such circumstances s49(2) provides in material terms that:

"The amount of the compensation awarded shall be such as the Tribunal considers just and equitable in all the circumstances having regard to –

(a) the infringement to which the complaint relates, and

(b) any loss which is attributable to the act, or failure to act, which infringed the complainant's right."

In such circumstances too there may be no economic loss suffered. Once again there are clear words allowing a wider ambit of recovery.

15. The jurisdiction of Employment Tribunals was relatively recently extended to include claims for damages for breach of contracts of employment. Section 3 of the Employment Tribunals Act 1996 confers power on the appropriate Minister by Order to provide that specified claims can be brought before an Employment Tribunal in addition to those for which there is already jurisdiction. Section 3(3) provides as follows:

"(2) Subject to subsection (3), this section applies to –

(a) a claim for damages for breach of a contract of employment or other contract connected with employment.

(b) a claim for a sum due under such a contract, and

(c) a claim for the recovery of a sum in pursuance of any enactment relating to the terms or performance of such a contract,

if the claim is such that a court in England and Wales or Scotland would under the law for the time being in force have jurisdiction to hear and determine an action in respect of the claim.

(3) This section does not apply in respect of a claim for damages, or for a sum due, in respect of personal injuries."

16. This section derives, via section 131 of the Employment Protection (Consolidation) Act 1978 ("the 1978 Act"), from s113 of the very statute which originated the claim for unfair dismissal, the Industrial Relations Act 1971 ("the 1971 Act"). The material Order for our purposes was made 23 years later, in 1994, by the [Employment Tribunal] Extension of Jurisdiction (England and Wales) Order 1994 ("the 1994 Order"), which provided as follows, by Article 5:

"Proceedings may be brought before an [Employment Tribunal] in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) if –

(a) the claim is one to which s131(2) of the 1978 Act applies and which a court in England and Wales would under the law for the time being in force have jurisdiction to hear and determine …

(c) the claim arises or is outstanding on the termination of the employee's employment".

17. This therefore means that an Employment Tribunal considering a claim for damages for breach of a contract of employment cannot award general damages: it also cannot award such damages for wrongful dismissal at common law, as if it were a High Court or county court (to which we shall refer further below), including in particular such damages by reference to a personal injury suffered e.g. a psychiatric condition inflicted: and pursuant to Norton Tool it has not been entitled to award such damages/compensation in respect of unfair dismissal either.
18. The position since Norton Tool has at no time been challenged in the courts, but the position has been expanded upon before us as follows:

(i) Loss in s123(1). Mr Bowers QC submits that loss in s123(1) means economic loss and not injury. He refers to the dictum of Brett MR in Haigh v Royal Mail Steampacket Co Ltd [1883] 52 LJ QB 640 at 643 "'personal injury' is not 'loss' because a limb may be broken without being lost. The word 'injury' would certainly have been more apt, but the word 'damage' can certainly mean personal injury". He thus contrasts the use of the words injury to feelings in discrimination proceedings. He submits that had the draftsman intended to convey that more than economic loss was recoverable, such words as "personal injury, loss or damage", or indeed "injury to feelings", would and could have been used. Mr White QC on the other hand points to the restrictive definition of gain and loss in s34(2)(a) of the Theft Act 1968:

"For the purposes of this Act

(a) 'Gain' and 'loss' are to be construed as extending only to gain or loss in money or other property, but as extending to any such gain or loss whether temporary or permanent; and –

(i) 'Gain' includes a gain by keeping what one has, as well as a gain by getting what one has not;

(ii) 'Loss' includes a loss by not getting what one might get, as well as a loss by parting with what one has."

Mr White QC submits that, if it had been intended to limit loss to loss in money or other property, s123 of the 1996 Act and its predecessors could have done so. He submits therefore that this allows for recovery in respect of loss of health or loss of amenity, loss of peace of mind or loss of dignity. Mr Bowers QC, while pointing out that the more care in eliminating doubt is necessary in a criminal statute, submits also that the main purpose of the definition in the Theft Act, perpetuating to some extent the old distinctions in larceny, was to rule out from the law of theft such intangibles as electricity (dealt with by particular statutory provisions such as s13 of the Theft Act) and, one might add, confidential information (see Oxford v Moss (1968) CAR 183). Both Mr Bowers QC and Mr White QC point to s123(2) of the 1996 Act for support. Mr White QC submits that the use of the word 'include' shows that other forms of loss, hence not necessarily economic, could also be subsumed within the section. Mr Bowers QC relies upon the eiusdem generis principle of construction to support his case that neither in that subsection, nor indeed anywhere else in s123, (unlike the other statutory provisions to which we have referred) is there anything which gives support to or in any way illustrates or provides guidance in respect of anything other than an economic loss. Further, whereas Mr White QC draws attention (as did Lord Hoffmann in Johnson at paragraph 55) to the use in s123(1) of the words 'such amount as the tribunal considers just and equitable in all the circumstances' Mr Bowers QC emphasises that all of that is circumscribed in s123 (unlike the wider provisions of s49 of the 1996 Act and s149 of TULRA quoted above) by the requirement to have "regard to the loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer".

(ii) Primary Remedies. Mr Bowers QC further relies upon what he calls his 'primary remedies' argument. It is plain from the statutory structure, which we have extracted in paragraph 8 above, that the primary remedies for unfair dismissal are indeed reinstatement or re-engagement pursuant to s113 of the 1996 Act. It is only if no order is made under s113 (see s122(4)) that an order for compensation falls to be made in accordance with s123. If an order for re-engagement or reinstatement is made, then there is separate provision for the making of concomitant compensation. These provisions are, in respect of an order for reinstatement, contained in s114:

"(2) On making an order for reinstatement the tribunal shall specify –

(a) any amount payable by the employer in respect of any benefit which the complainant might reasonably be expected to have had but for the dismissal (including arrears of pay) for the period between the date of termination of employment and the date of reinstatement …

(3) If the complainant would have benefited from an improvement in his terms and conditions of employment had he not been dismissed, an order for reinstatement shall require him to be treated as if he had benefited from that improvement from the date in which he would have done so but for being dismissed.

(4) In calculating for the purposes of subsection (2)(a) any amount payable by the employer, the tribunal shall take into account, so as to reduce the employer's liability, any sum received by the complainant in respect of the period between the date of termination of employment and the date of reinstatement by way of –

(a) wages in lieu of notice or ex gratia payments paid by the employer, or

(b) remuneration paid in respect of employment with another employer,

and such other benefits as the tribunal thinks appropriate in the circumstances."

There are similar provisions in s115, although of course an order for re-engagement may result in different terms of employment. The significance is, as Mr Bowers QC points out, that the sections make no use of the word loss, nor any other wording that might allow for non-economic loss or general damages. The method of calculation set out is purely monetary, intended to put the applicant into the position he would have been in if not dismissed. Mr Bowers QC submits that it cannot have been the intention of Parliament to provide compensation for non-economic loss in respect of those who are not reinstated or re-engaged, but not to provide such recovery in respect of those who suffer hurt feelings or psychiatric damage but are reinstated or re-engaged. He submits that this would create the anomalies that:

(a) a person whose feelings had been seriously injured may be inclined not to seek reinstatement.

(b) someone who has contributed to his dismissal (see s116(1)(c)) would be most unlikely to be reinstated, but may recover (reduced) compensation for any damage to feelings or reputation.

The word loss only arises in the context of a failure or refusal by an employer to comply with an order for reinstatement or re-engagement. Mr White QC submits that this is an acceptable distinction, because the order itself would in most circumstances be sufficient to assuage any hurt feelings. Mr Bowers QC responds that in many cases regaining a job may not assuage an employee's feelings, especially if it is re-engagement into a different position: indeed the feelings may have been hurt further by the long drawn out and possibly hard fought process of regaining the job. In any event it would seem difficult to justify any distinction, if indeed it is intended that non-economic loss be recoverable in respect of unfair dismissal where there is no reinstatement or re-engagement.

19. Mr Bowers QC puts forward two further arguments:

(i) He points out that there is a contrast to be made between the interest provisions relating to claims for discrimination and those for other claims such as unfair dismissal which, he submits, recognises the availability of 'general damages' in relation to the former but not the latter. In the case of the former the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 provide by Regulation 6(1) that interest runs "in the case of any sum for injury to feelings … for the period beginning on the date of the contravention or act of discrimination complained of and ending on the day of calculation", with a separate calculation in respect of "all other sums of damages or compensation". In respect of unfair dismissal, interest is governed by the Employment Tribunals (Interest) Order 1990, which has no special provision in relation to interest on general damages or non-economic loss running from the date of the dismissal, but provides only for interest to run as from the date of the decision on the totality of an award. Mr White QC submits that there is no materiality in this point. The 1996 Regulations do provide, in respect of both economic and non-economic loss, a more generous period for the grant of interest than unfair dismissal, i.e. antedating the award; and once pre-award interest is payable, then it is natural that there may be a different method of calculation in respect of the two types of loss, which would not be necessary in a case where interest in any event only runs from the award.

(ii) Mr Bowers QC submits that the absence of an award in respect of non-economic loss is to some extent compensated for by the existence of the basic award, pursuant to s119 of the 1996 Act. Albeit calculated by reference to length of employment and a week's pay, it is not linked to pecuniary loss, and he submits at least partially may reflect that distress could be greater where an employee has been dismissed after being employed for a longer period. Mr White QC points out understandably that the basic award can have no impact on or connection with the existence, nature and extent of any individual's distressed or injured feelings, and (although Mr Bowers QC points out that the dictum was in a redundancy case) points to the words of Lindsay P in Taylor v John Webster Buildings Civil Engineering [1999] ICR 561, where he expressed the view that "the basic award is to reflect a lost redundancy award; that is its function". We would also point out the offset provision in s123(3) of the 1996 Act quoted in paragraph 8 above.

We do not accept that either of these two submissions of Mr Bowers QC furthers his case.

20. We turn to look at other considerations relevant to construction of statute:

(i) Since Pepper v Hart [1993] AC 593 courts have been entitled, in the event of ambiguity in and uncertainty about the proper construction of a statute, to consult certain legislative or pre-legislative materials. Mr White QC refers so far as necessary to the Donovan Report, the Report of the Royal Commission on Trade Unions and Employers Associations (1965-1968), set up under the Labour Government of 1964-1970. This recommended that there be a remedy available to an employee found to have been unfairly dismissed, and Mr White QC points to paragraph 553 of the Report:

"The labour tribunal should normally be concerned to compensate the employee for the damage he has suffered in the loss of his employment and legitimate expectation for the future in that employment, in injured feelings and reputation and in the prejudicing of further employment opportunities."

(ii) Mr Bowers QC for his part refers to certain passages of Hansard relating to the debate on the Committee and Report stages of the Industrial Relations Bill which was eventually introduced by the Conservative Government of 1970-1974 and enacted as the 1971 Act. He refers to a speech by the then Lord Chancellor Lord Hailsham on 3 May 1971 at Vol 318 column 122 in relation to the Committee stage consideration of clause 4, looking forward to later discussion of clause 111, when the Lord Chancellor said: "When you come to look at clause 111, the compensation clause, you will come to the conclusion I think – and certainly this is the intention – that compensation is an award of damages without a solatium for injured feelings; that is to say, it is an award of damages based on actual loss. If I am wrong about that we will discuss it when we come to clause 111". There was no further such discussion when clause 111 came to be debated, nor, save in respect of the section number – it became section 116 – was there any further amendment.

(iii) Both Counsel give the now customary warning against reliance on the Pepper v Hart route (see ex p Spath Holme Ltd [2001] 2 AC 349 at 391, 399 and R v A (No 2) [2002] 1 AC 45 at 79), and Mr White QC has referred us to a lecture given by Lord Steyn as recorded in the Oxford Journal of Legal Studies Vol 21 (2001) at pages 59-72. It appears to us that if and insofar as ambiguity arises, neither of the two sources is of great assistance, but the reference to the Donovan Report is of less significance. As Mr Bowers QC pointed out, it was not a Government White Paper, but a report of a Royal Commission set up by a previous Government, and one of a different political hue. Insofar as it may have been one of the sources of the new Government's Industrial Relations Bill, it plainly was not the only source, and it was even by that time three years old. If the common law was to be changed quite so substantially by the jurisdiction to be given to the Industrial Tribunals, as they then were, so as to allow non-economic loss to be awarded, when none such was recoverable in almost any case for breach of contract at common law (see below) one would have expected a clearer picture in the new legislation, particularly if the recommendations of the Donovan Report were being enacted. As for the status of the words of the Lord Chancellor in the debate, it obviously does not suffer so thoroughly from the danger that Lord Steyn points out of the modern making of 'Pepper v Hart' statements, because in 1971 no one would have foreseen that the statement could become admissible in court. But not only was it only part of what was said by the Lord Chancellor in a debate as opposed to any kind of express explanatory opening statement about the legislation as a whole, but it was, although certainly not tentative, nevertheless not wholly confident in its presentation. However two things can be said. First it does expressly assert the Government's intention. Secondly, and perhaps more significant, at the very least it appears to negative the existence of any intention to implement in this regard the Donovan Report, and thus at least to neutralise the impact of Mr White QC's reliance upon that document.

(iv) Mr Bowers QC relies on the concept of "reiteration", which has been articulated in relation to employment legislation in Post Office v Foley [2000] IRLR 827 at paragraph 13, by Mummery LJ:

"The interpretation placed by the tribunals and courts, including this court, on the provisions of the 1978 Act in the cases of Iceland Foods and Burchell has not led Parliament to amend the relevant provisions, even though Parliament has from time to time made other amendments to the law of unfair dismissal, since those authoritative rulings on interpretation were first made. So those rulings, which have been followed almost every day in almost every Employment Tribunal and on appeals for nearly 20 years, remain binding."

The current formulation of the principle of the compensatory award, derived from s116 of the 1971 Act, has survived unaltered, and thus been reiterated, through a number of consolidating Acts, s76 of the Employment Protection Act 1975, s74 of the 1978 Act and now s123 of the 1996 Act. Given that it was in each case re-enacted without amendment, Mr Bowers QC submits that it must be assumed that Parliament was aware of the then undisputed case law that, by virtue of Norton Tool, compensation for non-economic loss was not awardable, and it was at each reiteration satisfied with the case law interpretation of it. Mr White QC relies upon the fact that the Employment Act 2002 ("the 2002 Act") did not include any change in this regard, notwithstanding that it was subsequent to Johnson, such that, if Johnson changed the law, the 2002 Act can be said to have reiterated the position post-Johnson. But the 2002 Act does not appear to us to carry the same weight as the earlier Acts, as on any basis it can be said that it did not, because it was not consolidating legislation, repeat, or relegislate, s123; it simply added a peripheral s124A, dealing with the calculation of awards, to the 1996 Act.

(v) By reference to the researches of Miss Heal and Mr Linden into the Commonwealth position (Miss Heal has also surveyed the position in fifteen European jurisdictions which have not in the event assisted any conclusion on construction), the following position can be established in Australia, New Zealand and Canada:

(a) Australia. The relevant statute is the Workplace Relations Act 1996. It appears that s170 CH (or its predecessor) has been interpreted (in Burazin v City Guardian Pty [1996] 142 ALR 144) as empowering the Australian Industrial Relations Commission to award compensation for mental distress or injured feelings in a claim for unfair dismissal, by reference to the provision in s170 CH(2)(e), which entitles it to have regard, in making its order, to "all the circumstances of the case including … any other matter that the Commission considers relevant." So far as the common law is concerned, in Australia Addis v Gramophone Co Ltd [1909] AC 488 ("Addis") has been followed in relation to wrongful dismissal claims, such that damages for distress and physical injury resulting from wrongful dismissal cannot be recovered at common law (as in Aldersea and Others v Public Transport Corporation [2001] 183 ALR 545, following the decision of the House of Lords in Johnson).

(b) New Zealand. An employee may bring a "personal grievance" in the Employment Tribunal, pursuant to the Employment Contracts Act 1991, including claims of unjustified dismissal. S40(1) of that Act expressly enacts that:

"(1) Where the Tribunal or the Court determines that an employee has a personal grievance, it may, in settling the grievance, provide for any one or more of the following remedies

…

(c) the payment to the employee of compensation by the employee's employer, including compensation for

(i) humiliation, loss of dignity and injury to the feelings of the employee."

So far as the common law is concerned, in New Zealand Addis has not been followed, such that damages for mental distress, anxiety, humiliation, loss of dignity and injury to feelings arising out of wrongful dismissal can be recovered (Whelan v Waitaki Meats Ltd [1991] 2 NZLR 74 and Ogilvy and Mather (New Zealand) Ltd v Turner No 2 [1996] 1 NZLR 641).

(c) Canada. There is a statutory claim for unjust dismissal, under the Canada Labour Code. Such claim is restricted to economic loss, by virtue of s242(4) of the Code which provides that:

"4. Where an adjudicator decides … that a person has been unjustly dismissed the adjudicator may, by order, require the employer who dismissed the person to:

(a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person."

So far as the common law is concerned, Wallace v United Grain Growers Ltd [1997] 3 SCR 701 establishes that any award of damages beyond compensation for economic loss in respect of wrongful dismissal must be founded on separately actionable conduct, such as defamation or the tort of intentional infliction of mental suffering.

It can be seen therefore that the statutory provisions, being in each case in a different format, give no guidance as to the construction of the British statutes, but in no way undermine the approach to such construction which has been adopted by the British tribunals in and since Norton Tool.

B. The position in the common law courts in England and Wales prior to Johnson.

21. The headnote of Addis in the Appeal Cases reads as follows:

"Where a servant is wrongfully dismissed from his employment the damages for dismissal cannot include compensation for the manner of the dismissal, for his injured feelings, or for the loss he may sustain from the fact that the dismissal of itself makes it more difficult for him to obtain fresh employment."

Subject to the discussion of this in Johnson, particularly by Lord Steyn, this has been interpreted ever since to rule out at any rate damages for non-economic loss resulting from wrongful dismissal.

22. In any event, and irrespective of Addis, there has been a well-established restriction on the recovery of non-economic loss in claims for breach of contract. In Watts v Morrow [1991] 4 AER 939 at 959j Bingham LJ, as he then was, summarised the position as follows:

"A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party. This rule is not, I think, founded on the assumption that such reactions are not foreseeable, which they clearly are or may be, but on considerations of policy."

Of course he pointed out that there may be exceptions, such as "where the very object of the contract is to provide pleasure, relaxation, peace of mind or freedom from molestation", but this is an "exceptional category". Lord Steyn in Farley v Skinner [2001] 3 WLR 899 at 906 said that "the general principle is that compensation is only awarded for financial loss resulting from a breach of contract", though in that case damages for disappointment and mental distress were awarded because the provision of peace of mind was one of the objects of the surveyor's contract. The recovery of damages for non-economic loss in non-employment cases (other than actions which may be framed in breach of contract, as well as tort, for personal injury, in respect of which damages for pain and suffering and loss of amenity would always be recoverable) have been slowly expanding (as in Cornelius v De Taranto [2001] EMLR 12), but always subject to this restrictive approach.

23. So far as concerns breaches of a contract of employment other than wrongful dismissal itself, there can be the recovery of damages for non-economic loss in respect of the onset of psychiatric illness, but not in respect of frustration, mental distress, injured feelings or annoyance. This is recently reiterated and explained by Hale LJ in Gogay v Hertfordshire County Council [2000] IRLR 703 at paragraphs 60 to 64:

"There is clear authority for the proposition that general damages cannot be awarded for frustration, mental distress or injured feelings arising from an employer's breach of the implied term of confidence and trust: see Bliss v South East Thames Regional Health Authority [1985] IRLR 308 CA … There is, however, a clear distinction between frustration, mental illness and injured feelings, on the one hand, and a recognised psychiatric illness on the other. In Page v Smith [1996] AC 155, the House of Lords held (by a majority) that once it was established that the defendant was under a duty of care to avoid causing personal injury to the claimant, it mattered not whether the injury sustained was physical, psychiatric or both …The duty in this case is owed purely in contract, rather than in tort, but there can be no more reason to distinguish between physical and psychiatric injury in this case than there is in the case of other breaches of an employer's duties … There is all the difference in the world between hurt, upset and injury to feelings, for which in general the law does not provide compensation whether in contract or (with certain well-defined exceptions) in tort, and a recognised psychiatric illness."

24. In Malik/Mahmud the House of Lords established the recoverability of damages for breach of contract in respect of financial loss for damaged reputation, or "stigma damages", resulting from breaches of a contract of employment (breach of the implied term that the employer would not carry on a dishonest or corrupt business, such that if it was reasonably foreseeable that, in consequence of such corruption, there was a serious possibility that employees' future employment prospects were handicapped, damages were recoverable for any such continuing financial losses sustained, not arising out of wrongful dismissal.

What is the effect of Johnson?

A. The effect on common law courts in England and Wales.

25. In general terms it can be said that Addis survives. Damages for non-economic loss arising out of the dismissal, including the manner of dismissal, are not recoverable in the common law courts. The approaches of the five Law Lords were not identical, and in any event, although the decision was unanimous, Lord Steyn's approach was in substantial contrast to the other four Law Lords. It is necessary, and in any event helpful, briefly to analyse such approaches.
26. Lord Steyn would have limited Addis to preventing the recovery of non-economic loss arising out of the manner of dismissal, but would have permitted the recovery of economic loss arising from the manner of dismissal. He says this at paragraph 3:

"… the headnote of the decision of the House of Lords in Addis …purports to state the ratio decidendi of that case as follows: where a servant is wrongfully dismissed from his employment the damages for the dismissal cannot include compensation for the manner of his dismissal, for his injured feelings, or for the loss he may sustain from the fact that the dismissal of itself makes it more difficult for him to obtain fresh employment. This statement of the law was based on an observation in the speech of Lord Loreburn LC. A majority of the Law Lords expressed agreement with this speech. On the other hand, only Lord Loreburn LC specifically referred to the unavailability of special damages for loss of employment prospects. The other Law Lords concentrated on the non-pecuniary aspects of the case. The headnote is arguably wrong insofar as it states that the House decided that a wrongfully dismissed employee can never sue for special damages for loss of employment prospects arising from the harsh and humiliating manner of the dismissal."

27. In paragraph 5 of his speech he concluded that "the question of public importance now before the House is whether Addis … precludes the recovery by an employee of special damages for financial loss in respect of damage to his employment prospects resulting from the manner of a wrongful dismissal. It was on this basis that the Appeal Committee granted leave to appeal rather than the particular features of the claim under consideration". In paragraph 11 of his speech he explained that it must be assumed (because the case is based on an application to strike out) that as a result of the circumstances and fact of his dismissal the claimant had suffered a major psychiatric illness and in consequence was unable to find a job. He addressed (in paragraphs 11 and 17) only the issue as to whether Addis "preclud[ed] the recovery of special damages in respect of financial loss flowing from the manner of wrongful dismissal". Given that the claim in Johnson, as had been the claim in Malik/Mahmud, was based upon an alleged breach of the obligation of mutual trust and confidence, he concluded (in paragraph 21) that such a claim could not be confined to breaches during the subsistence of the contract, particularly as the implied obligation of mutual trust and confidence had been developed in a series of constructive dismissal cases. He would, notwithstanding the existence of a remedy in an Employment Tribunal for unfair dismissal ("fairly nominal" (paragraph 25) because of the existence of the statutory limit on recovery) have permitted recovery of economic loss arising out of the manner of dismissal from a breach of the implied term of trust and confidence, although he assented to the striking out because he concluded that there was no realistic prospect of the employee being able to overcome the obstacle of remoteness, on the facts of the particular case. He does not address the issue of the recovery of non-economic loss arising out of the manner of dismissal (paragraph 11).
28. The other four Law Lords made no such distinction between the recovery of economic and non-economic loss, but simply upheld Addis, so that there was to be no recovery at common law for economic or non-economic loss arising out of the manner (or fact) of dismissal. Their reasoning can be summarised as follows:

(i) The existence of the statutory scheme in respect of unfair dismissal (Lords Nicholls, Hoffmann and Millett: Lord Bingham agreeing generally with Lord Hoffmann and Lord Millett).

(ii) Consideration that a complaint about the manner of dismissal could not be an allegation of the breach of the implied term of trust and confidence, which was dedicated towards keeping the contract alive: Lord Hoffmann at paragraphs 46-47 and Lord Millett at paragraph 78 (again presumably with Lord Bingham's general agreement): Lord Nicholls is silent as to this and Lord Steyn disagrees (paragraph 26).

(iii) The problem of distinguishing between loss resulting from the manner of dismissal (i.e. resulting from breach of the implied term) and loss resulting from the fact of dismissal (i.e. resulting from the wrongful dismissal itself): Lord Hoffmann at paragraph 48 and Lord Millett at 77 (again Lord Bingham's general agreement). Again Lord Nicholls does not mention this. Lord Steyn adverts to the difficulty in paragraph 29, but would not find it determinative.

(iv) The open-ended nature of the liability for damages: Lord Hoffmann at paragraph 49. Lord Millett does not mention this (but presumably Lord Bingham's agreement with both Lord Hoffmann and Lord Millett extends to agreement with Lord Hoffmann even where Lord Millett does not deal with it). Lord Nicholls again is silent as to this and Lord Steyn is unworried by it (paragraph 27)

29. It is plain from the words of Hale LJ in Gogay, which ante-dated the decision of the House of Lords and post-dated the appeal in Johnson, that she hoped for or expected a different result, and/or would have agreed with Lord Steyn that there ought to be no distinction in recoverability in respect of an employer's conduct during a contract and an employer's conduct part of or amounting to a wrongful dismissal or constructive dismissal. This appears from paragraphs 68 and 69 of her judgment:

"The case before us can be distinguished from Johnson [1999] IRLR 90 [CA]. The complaint here relates to a suspension, which manifestly contemplates the continuation of the employment relationship. The clear import of [Malik/Mahmud] is that the ambit of Addis should be confined. There are in this case two differences from Addis: first, this was not a dismissal, and, secondly, this was psychiatric illness rather than hurt feelings. In my judgment therefore, the judge was right to award damages for both the financial loss and the non-pecuniary damage resulting from the claimant's illness. … I recognise that this produces the strange result, that according to Johnson …[CA] the defendant authority would have done better had they dismissed rather than suspended the claimant. That simply reinforces my view that the sooner these matters are comprehensively resolved by a higher authority or by Parliament, the better."

30. There have been three Court of Appeal decisions since Johnson to which our attention has been drawn, which have followed, interpreted and applied it:

(i) In Eastwood v Magnox Electric plc [2002] EWA Civ 463 [2002] IRLR 447 there was a claim for damages in respect of psychiatric injury said to result from a breach of the implied term of trust and confidence, which was asserted to be recoverable notwithstanding Johnson, on the basis that the acts of the employer complained of could be severed from the employer's conduct leading to the dismissal, and thus found a claim. The Court of Appeal concluded that the acts/conduct complained of could not be so severed. Peter Gibson LJ at paragraph 23 stated as follows:

"It is, in my judgment, plain that in Johnson the majority in the House of Lords held that unfairness in the manner of dismissal of an employee does not give rise to a common law action, whether it be founded in contract or in tort, but must be the subject of Employment Tribunal proceedings. The implied term of trust and confidence cannot be used in connection with the way the employer/employee relationship is terminated. There may be cases where the particular manner in which an employee is dismissed or the circumstances attending dismissal is or are confined to events occurring at the same time or immediately before the dismissal. In other cases that manner and those circumstances may include a pattern of events stretching back over a period. It is a question of fact for the trial judge to determine in each case."

Eastwood was found to fall within the latter category.

(ii) The same result followed in the Court of Appeal in Boardman v Copeland Borough Council [2001] EWCA Civ 888 (unreported). Schiemann LJ recorded in paragraph 17 that the claimant had "neither pleaded nor shown any damage to him during the course of his employment which resulted from his employer's conduct. The only damage which is demonstrated is that which followed from his dismissal and, arguably, the manner of his dismissal. That damage if it exists has been held in Johnson to be irrecoverable in a Common Law action".

(iii) In McCabe, however, the Court of Appeal allowed an appeal against an order striking out a claim, because of the arguability of an amendment. Brooke LJ, seemingly like Hale LJ, was "very uneasy about certain aspects of the present state of the law, which appear to me to warrant re-examination by the House of Lords, or by Parliament at an early date", (paragraph 33), and the Court of Appeal allowed the case to go forward on the basis of arguable severability as a separate, earlier breach of the employer's conduct complained of. Sedley LJ said as follows in paragraphs 48-49:

"Once the claim is amended, as I agree it should be, it is a case in which two arguably distinct things have happened. The claimant has been traumatised by being suspended on a minor and unproven but very distressing accusation; and, much later, he has been dismissed by reason of the same accusation. [Johnson] without question decides that he cannot bring an action in relation to the latter. It also, I accept, decides that he cannot bring an action in relation to the former if it was simply part of the process of dismissal. But it does not decide that every breach of contract which precedes a dismissal is part of the dismissal … Accordingly, it seems to me, it remains to be decided in the present case whether the act of suspension was (a) wrongful and (b) causative of trauma; and then, if it was both these things (c) whether it formed part of the process of dismissal or was – as the claimant asserts it was – a discrete event which would have rested where it was but for his own election to appeal against the warning which followed it."

B. What is the effect of Johnson on unfair dismissal claims in the Employment Tribunals?

31. Although the speeches of the other Law Lords must be carefully analysed also, the starting point for discussion, and the passage upon which those Employment Tribunals which have, since Johnson, awarded compensation in unfair dismissal for non-economic loss relied, is paragraph 55 of Lord Hoffmann's speech, which we set out:

"In my opinion, all the matters of which Mr Johnson complains in these proceedings were within the jurisdiction of the industrial tribunal. His most substantial complaint is of financial loss flowing from his psychiatric injury which he says was a consequence of the unfair manner of his dismissal. Such loss is a consequence of the dismissal which may form the subject matter of a compensatory award. The only doubtful question is whether it would have been open to the tribunal to include a sum by way of compensation for his distress, damage to family life and similar matters. As the award, even reduced by 25%, exceeded the statutory maximum and had to be reduced to £11,000, the point would have been academic. But perhaps I may be allowed a comment all the same. I know that in the early days of the National Industrial Relations Court it was laid down that only financial loss could be compensated: see Norton Tool … Wellman Alloys …It was said that the word 'loss' can only mean financial loss. But I think that is too narrow a construction. The emphasis is upon the tribunal awarding such compensation as it thinks just and equitable. So I see no reason why in an appropriate case it should not include compensation for distress, humiliation, damage to reputation in the community or to family life."

32. Lord Hoffmann of course does refer to the "early days", but although that use of words may be the source of Auld LJ's misunderstanding in McCabe, if such it was, i.e. that matters had subsequently altered in the Employment Tribunals, this has not in fact been the case; and the very fact that the law and practice has remained unchanged since the early days, i.e. day in and day out in tribunals over a period of thirty years, is of itself a factor to be considered. The starting point is that neither in that paragraph nor by any other means did the House of Lords overrule Norton Tool. Further, notwithstanding Lord Hoffmann's expression of opinion as to the construction of loss in s123 being too narrow, none of the authorities, arguments or justifications set out by us in paragraph 9 to 20 above were addressed.
33. This is not surprising. As we understand it, there was no argument before the House of Lords, or at any rate no kind of full argument, as to whether non-economic loss was or should be recoverable in respect of unfair dismissal in Employment Tribunals. We have seen the reamended particulars of claim of Mr Johnson. These alleged negligence and breach of the implied term of trust and confidence by Unisys Ltd, and at paragraph 14 it is pleaded that "as a result of the said breaches of contract and/or negligence the [claimant] sustained personal injury and suffered loss and damage. The [claimant's] case is that his injuries were caused both by (i) the defendant's conduct leading up to the [claimant's] dismissal and (ii) the dismissal itself." The history of his mental breakdown and subsequent depression, mood swings and alcohol dependency are set out. There is a lengthy Schedule of Special Damage. However we have also seen the written Cases in the House of Lords. The Appellant's Case at paragraphs 44 to 46 dealt only with the argument about recoverability of economic loss, and asserted that there was no reason why there should not be concurrent remedies in the High Court and in the Employment Tribunals.:

"44. It was not argued in the Court of Appeal that a claim made to an [Employment] Tribunal pursuant to statute precluded a claim in common law. Nothing in the Employment Rights Act 1996 restricts or modifies a remedy at common law. But how do the two remedies inter-relate? There is no reason why there should not be concurrent liability. There are many such overlaps and causes of action (e.g. contract and tort). The rule against double recovery prevents damages being awarded twice for the same loss (see Wellman Alloys …) … It is submitted that it can neither have been Parliament's intention nor the intention of the Courts in developing the term of trust and confidence, to confine an employee's rights to one sphere at the expense of the other.

45. In a claim for unfair dismissal, damages can be awarded for the manner of the dismissal if as a result the applicant has suffered financial loss (Norton Tool … Vaughan v Weighpack …"

34. In the Respondent's Case the point is simply made in paragraph 11(3), which is seemingly that which is expressly relied upon and adopted by Lord Nicholls at paragraph 2 of his speech, namely as to the simple existence of the statutory scheme. No reference is made to any distinction between economic or non-economic loss or availability of the one or the other. The conclusion is simply that "Your Lordships' House should reject the invitation to create a series of new remedies outside the scope of the statutory scheme for a wrong which is within the scope of the statutory concept of unfair dismissal."
35. This is entirely consistent with what Lord Steyn said at paragraph 11 of his speech namely:

"It is important to note that the claim is solely for the recovery of special damages for financial loss." [We interpose that this, as is clear from our reference to the reamended particulars of claim is not entirely accurate, but does indicate the nature of the argument before their Lordships, namely that there was no separate consideration of any claim for general damages.] "The separate question whether an employee may recover compensation for anxiety and mental stress arising from the manner of his dismissal, was not raised before the judge or before the Court of Appeal. It is not an issue before the House and it would be wrong to express any view on it."

Particularly given Lord Steyn's categorisation of the basis upon which the Appeal Committee (of which he had been a member) had granted leave to appeal, as set out in paragraph 5 of his speech, namely "whether [Addis] … precludes the recovery by an employee of special damages for financial loss in respect of damage to his employment prospects as a result of the wrongful dismissal", and the absence of any argument in the written Cases (or reference anywhere in their Lordships' speeches to any such argument being made orally), this underlines the absence of any consideration of the relevant issues both as to construction and indeed policy which are now before us.

36. The ratio decidendi of the decision of the House of Lords in Johnson could be said to be that Addis is still good law, and that there is no recovery at common law for damages for breach of contract arising out of the manner or the fact of dismissal. The ratio might be further extended to cover the fact that four of their Lordships rested that conclusion upon the existence of the statutory scheme (Lords Nicholls, Hoffmann and Millett, the latter two being agreed with by Lord Bingham). But only Lord Hoffmann dealt (at paragraph 55 which we have set out above) with the question of the availability of non-economic loss in Employment Tribunals as part of his reasoning:

Lord Bingham said (at paragraph 1) that he had "had the advantage of reading in draft the opinions of … Lord Hoffmann and Lord Millett. I agree with them both and would dismiss this appeal for the reasons that they give".

Lord Steyn supported the recoverability of economic loss at common law, while expressly reserving any discussion of recoverability of non-economic loss (paragraph 3-5, 9, 11, 17).

Lord Nicholls (paragraph 2) considered that the appellant's argument had much to commend it but "there is an insuperable obstacle: the intervention of Parliament in the unfair dismissal legislation. Having heard full argument on the point, I am persuaded that a common law right embracing the manner in which an employee is dismissed cannot satisfactorily co-exist with the statutory right not to be unfairly dismissed. A newly developed common law right of this nature, covering the same ground of the statutory right, would fly in the face of the limits Parliament has already prescribed on matters such as the classes of employees who have the benefit of the statutory right, the amount of compensation payable and the short time limits for making claims. It would also defeat the intention of Parliament that claims of this nature should be decided by specialist tribunals, not the ordinary courts of law". It would appear that from his viewpoint it was the simple existence of the alternative scheme, no doubt it could be said 'warts and all', which prevented recoverability at common law in respect of any such claims, and it was certainly not the specific availability of recovery for non-economic loss which was at any rate expressed to have formed any part of his conclusion.

Lord Hoffmann begins paragraph 55 by stating that "all the matters of which Mr Johnson complains in these proceedings were within the jurisdiction of the [employment] tribunal". But he immediately recognises the difference between economic and non-economic loss. He records that Mr Johnson's economic loss could form the subject matter of a compensatory award for unfair dismissal in the Employment Tribunals. But he then continues. "The only doubtful question" was whether there was recovery in the Employment Tribunals of non-economic loss. He recorded that the "point would have been academic" in an Employment Tribunal, given the statutory cap (then as low as £11,000), and yet he added "but perhaps I may be allowed a comment all the same". That comment is, or at any rate concludes, that he can "see no reason why in an appropriate case it should not include" compensation for non-economic loss. Particularly given the absence of any overruling of Norton Tool (and the lack of argument to which we have referred), this tentative approach reads plainly like an obiter dictum.

Lord Millett records in paragraph 70 that "the supposed rule that damages are not recoverable for financial loss arising from injury to reputation (or in a case of wrongful dismissal for making it more difficult for the employee to find employment) is not easy to defend and may no longer be the case after [Malik/Mahmud]". Dealing with non-economic loss he records, in the same paragraph, that non-economic loss is not ordinarily recoverable by way of damages for breach of contract, the "ordinary feelings of anxiety, frustration and disappointment caused by any breach of contract" being seemingly excluded because "they are so commonly a consequence of a breach of contract that the parties must be regarded not only as having foreseen it but having agreed to take the risk of its occurrence"; with the exception of those cases, to which we have already referred, where there are breaches of contracts with the object of the provision of enjoyment, comfort, peace of mind or other non-pecuniary personal or family benefits. He refers to the extensive jurisprudence which has developed in relation to unfair dismissal over the past thirty years, in paragraph 75 (no mention being made of Norton Tool). He refers, in paragraph 77, to the fact that the "common law does not stand still" but that, Parliament having created the statutory right not to be unfairly dismissed, it was the less incumbent on the courts to take steps. He points out:

"If the courts had taken the step themselves, they could have awarded common law damages for unfair dismissal consistently with [Addis] … because such damages would be awarded for the breach of an implied but independently actionable term (as in Malik/Mahmud v BCCI …) and not for wrongful dismissal. But the courts would have been faced with the difficult task of distinguishing between the mental distress and other non-pecuniary injury consequent upon the unfairness of the dismissal (for which the employer would be liable) and the similar injury consequent upon the dismissal itself (for which he would not)."

He concludes paragraph 77 by saying "in practice, they would probably have been reduced to awarding conventional sums by way of general damages much as the Employment Tribunals do": it is unclear to what Lord Millett is here referring unless it is to the basic award. Having agreed with Lord Hoffmann in paragraph 78 (in disagreement with Lord Steyn at paragraph 26) as to the inapplicability of the implied term of trust and confidence in the context of dismissal, he returns at paragraph 80 to the statutory procedures. He says as follows:

"In the great majority of cases the new common law right would merely replicate the statutory right; and it is obviously unnecessary to imply a term into a contract to give one of the contracting parties a remedy which he already has without it. In other cases, where the common law would be giving a remedy in excess of the statutory limit or to excluded categories of employees, it would be inconsistent with the declared policy of Parliament. In all cases it would allow claims to be entertained by the ordinary courts when it was the policy of Parliament that they should be heard by specialist tribunals with members drawn from both sides of industry. And, even more importantly, the co-existence of two systems, overlapping but varying in matters of detail and heard by different tribunals, would be a recipe for chaos. All coherence in our employment laws would be lost."

This conclusion appears simply to refer to the existence of the alternative statutory procedure, in the same way as Lord Nicholls. There is certainly no reference to the view expressed by Lord Hoffmann as to the recoverability in Employment Tribunals of non-economic loss, and perhaps his reference to the "great majority of cases" suggests a possible disagreement, by reference to some people who might not be able to make recovery in the Employment Tribunals?

37. This close analysis of the five different speeches must be set against two points made by Mr White QC. First he points out that Lord Millett begins his speech at paragraph 68 by saying that he has "had the advantage of reading in draft the speech of … Lord Hoffmann, with which [he is] in full agreement": and then he emphasises that Lord Bingham agreed with both Lord Hoffmann and Lord Millett in the terms which we have set out above. But:

(i) If paragraph 55 does not form part of Lord Hoffmann's "reasons" but only amounts to a "comment which he may be allowed … all the same", then is Lord Bingham agreeing with him in that regard? In any event does a general agreement by Lord Bingham and/or by Lord Millett elevate an obiter dictum into a ratio?

(ii) We cannot help being influenced by the passage in Lord Hoffmann's own speech, to which Mr Bowers QC somewhat mischievously drew our attention, in HIH Casualty & General Insurance Ltd v Chase Manhattan Bank [2003] UK HL 6 at paragraph 80. In relation to a somewhat similar discussion about the effect and nature of the precise words used by Law Lords in either agreeing, entirely agreeing or concurring in the words of others, Lord Hoffmann observed "these exercises have more in common with reading tea leaves than with legal reasoning".

38. We are entirely satisfied that the decision of the House of Lords in Johnson does not bind Employment Tribunals to change course after thirty years, and to abandon reliance upon and compliance with Norton Tool. What there is is the expression of opinion by a very experienced and influential Law Lord as to what Employment Tribunals ought, notwithstanding Norton Tool, to do in respect of recoverability of non-economic loss in unfair dismissal claims, and it is to that which we now turn. Norton Tool has thus now been doubted by Lord Hoffmann, with which doubt Lord Bingham and Lord Millett may or may not have agreed, but in any event after no or no material argument. Norton Tool itself has previously been taken for granted and implicitly approved, as set out in paragraph 10 above, in the Court of Appeal and even the House of Lords, but in any event without being in any way expressly reconsidered. We shall approach this question upon the basis that, as the Employment Appeal Tribunal, we are not bound by the decision of the National Industrial Relations Court, but would rather regard such a decision, being by a body of equal jurisdiction to our own, and similarly constituted, as being extremely persuasive, and the more persuasive because of its continued unchallenged effect for so long, but on the basis that we are not bound by any higher court not to depart from it if we conclude that we should.

Should Employment Tribunals change course from Norton Tool to allow recovery of non-economic loss?

39. It appears sensible to categorise differently what appear to be two different kinds of causes of loss, resulting either from the manner or the fact of dismissal, suffered by an unfairly dismissed employee over and above ordinary losses such as the loss of salary and benefits until new employment (and continuing if equally well-paid employment cannot be found). Such cases could be categorised as:

(i) 'Internal Reasons' e.g. a psychiatric or other illness or condition suffered by the applicant, or a mental state of mind such as stress, distress or depression.

(ii) 'External Reasons' e.g. stigma damage, loss of professional status, loss of reputation or embarrassment vis a vis potential alternative employers.

40. Mr Bowers QC submitted that there would be a difficulty of applying s123 in the context of constructive dismissal (a substantial proportion of unfair dismissal claims) if non-economic loss were awardable; and that this should be influential in our concluding that non-economic loss is not recoverable for unfair dismissal. We do not see the difficulty, or at any rate the basis for any such argument. It is plain that Norton Tool anticipated and allowed the recovery of economic loss arising from the manner and/or circumstances of a dismissal, if it gave rise for example to making the applicant less acceptable to potential employers [at 506(b]). This would apply as much to a constructive dismissal as to a dismissal, and so, pursuant to Norton Tool, an applicant would be entitled to recover if he or she can prove economic loss if e.g.:

(i) by virtue of 'internal reasons' the employee is not physically or mentally fit to take up alternative employment as early or as suitably as he or she would otherwise have done and/or ever.

(ii) by virtue of 'external reasons', notwithstanding that the employee is trying to find alternative employment and would ordinarily have been able to achieve it, no or no suitable employer is prepared to employ him or her, at any rate on terms that do not cause continuing loss.

Given that if such can be established, such economic loss would be "loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer", this would apply as much to a constructive dismissal as to an ordinary dismissal (as to the latter see Devine v Designer Flowers Wholesale Florist Sundries Ltd [1993] IRLR 517). The task for the applicant would be to show that such loss flowed from the constructive dismissal i.e. presumably from the repudiatory breach by the employer which the employee accepted. Any validity in Mr Bowers QC's distinction will be of value not by reference to any difference between ordinary and constructive dismissal per se, but by reference to the easier task of the tribunals if these issues are limited to the recovery of economic loss, to which we shall return.

41. The starting point for consideration appears to us as follows. If non-economic loss were recoverable in the Employment Tribunals, there would be no call for any distinction between the manner and the fact of dismissal, the dismissal once (for whatever reason) having been found to be unfair. Such distinction would be very difficult if not impossible to operate, as is recognised in Johnson (by Lord Hoffmann at paragraph 48, Lord Millett at 77 and Lord Steyn at 29), particularly in cases of constructive dismissal. It is only a relevant distinction if one is contemplating recovery at common law and trying to skate around Addis (as postulated by Lord Millett at paragraph 77). If non-economic loss is to be recoverable in the Employment Tribunals then the compensation is simply in respect of "loss sustained by the complainant in consequence of the dismissal insofar as that loss is attributable to action taken by the employer", and there is no place for any consideration of whether the loss resulted from the fact or from the manner of dismissal or (consequently) any distinction between what might be called normal stress/distress resulting from the simple fact of dismissal or excessive stress/distress resulting from the exacerbation of that normal stress by virtue of the manner of dismissal. All would be recoverable, and hence there was no point or justification in the exercise carried out by the Employment Tribunal in Dawson, one of the cases before us ("The Tribunal acknowledged that it was necessary to identify the pain and suffering attributable to the circumstances of the dismissal which the applicant would not otherwise have suffered" (paragraph 7 of the Decision)). Everyone would be entitled to recover compensation if he or she is at all distressed/humiliated/ stressed/embarrassed by the unfair dismissal or the consequent unemployment or (in cases of constructive dismissal) by the repudiatory breaches of the employer leading up to it. No doubt such injury to feelings could be ignored if de minimis, but the reality is that almost everyone who has been unfairly dismissed is understandably likely to be upset by losing their job, irrespective of the manner of losing it, and by the resultant prospect and fact of unemployment. Sight must not be lost of the wise words of Lord Millett in justifying the normal non-recovery of general damages for breach of contract at paragraph 70 that "the ordinary feelings of anxiety, frustration and disappointment caused by any breach of contract … are so commonly a consequence of a breach of contract that the parties must be regarded not only as having foreseen it but having agreed to take the risk of its occurrence". The result would be that every applicant would be likely to claim compensation for non-economic loss in respect of unfair dismissal, almost automatically. Once and if loss in s123 were construed as including non-economic loss, there could be no room for any kind of policy distinction (nor has Mr White QC so suggested) between the establishment of a psychiatric condition and of other states of mind such as frustration or disappointment, as has emerged at common law (see Gogay as discussed in paragraph 23 above). In respect of this almost universal entitlement:

(i) there would or could develop an element of conventional sum for unhappiness as a result of being unfairly dismissed, in addition to the basic award and to the recovery of economic loss, but all within the statutory cap:

(ii) in any event, even with such non-economic loss being universally claimed:

(a) it would still be necessary to show that the injury to feelings/psychiatric injury arose (or, subject to causation arguments to which we refer below, arose primarily or materially) as a result of the dismissal/constructive dismissal, rather than as a result of an earlier breach or of general conditions of employment;

(b) the applicant may already be suffering from some medical/psychiatric condition or from unhappiness at home etc. irrespective of his or her employment position.

42. The absence of recovery of non-economic loss in unfair dismissal claims all falls into place if it is accepted that the aim of the unfair dismissal legislation is to compensate in respect of economic loss. Although Miss Heal's overview of the similar remedies for unfair dismissal in the fifteen European countries to which we have referred is not entirely comprehensive, it does appear that that is the general approach to be deduced from them (and, as appears in paragraph 20(v) above, from Canada, though not Australia and New Zealand). But this has certainly been the approach over the last thirty years in relation to the operation of our statutory jurisdiction. Thus (Norton Tool) if economic loss arises as a result of the manner of the breach that would be reflected no doubt in the greater difficulty in finding subsequent employment. The starting point would be that the applicant either has not yet obtained new employment, or cannot obtain the same or equally well paid employment, and it is alleged that this is due to either internal reasons or external reasons, as discussed above. It will then be seen that there is economic loss, and the question will be one of causation or, in fact, inability to mitigate. There will still be the difficulty of showing that the alleged loss flows from a dismissal or constructive dismissal, rather than from inherent causes or some earlier breach of contract by the employer, but it will only arise where there is economic loss to be justified and certainly not in every case, or in cases where stress/distress have not had any economic effect.
43. The existence of the statutory cap (presently £53,500) makes absolute sense in the context of recovery of economic loss i.e., as a matter of policy decided by Parliament, putting some limit on future loss if, for example, it was thought that the applicant could never be employed again. It makes no sense at all to put a cap on the recovery of non-economic loss e.g. general damages for the imposition of a psychiatric injury, when no comparable statutory cap exists in relation to personal injury awards in the ordinary courts. Of course it may also be reduced on grounds of contributory fault (s123(6)).
44. Against the background that recovery of non-economic loss is limited in all forms of recovery of damages arising out of breach of contract (see paragraphs 21 to 24 above) there seems no reason why it should not be similarly so limited in Employment Tribunals also, who are no more (and very likely considerably less) experienced in assessing non-economic loss/general damages than the common law courts:

(i) It is worth recalling that the exclusion from the jurisdiction of the Employment Tribunals to consider claims for personal injury when adjudicating on claims for damages for breach of a contract of employment was foreseen and provided for in the very statute (the 1971 Act) which introduced unfair dismissal (see paragraph 16 above). Whereas it is right to describe, as Lord Millett does in paragraph 80 of Johnson, Employment Tribunals as being "specialist tribunals with members drawn from both sides of industry", there is no reason why Employment Tribunals should have any special expertise in deciding questions as to the existence and aetiology of medical conditions.

(ii) Such questions are inevitably likely to be difficult. As Hale LJ pointed out at paragraph 36 of Hatton v Sutherland [2002] ICR 613 (the recent Court of Appeal decision relating to damages at common law for breach of a (subsisting) contract of employment in respect of psychiatric injury caused by stress) "many stress-related illnesses are likely to have a complex aetiology with several different causes". Additional difficult questions of causation will arise in cases of constructive dismissal, as to what acts of an employer, said to be causative of the relevant condition, are or are not relevant, in the sense of being part of the repudiatory conduct accepted by the employee and thus constituting the dismissal, as opposed to being conduct antedating the repudiatory breach or breaches. If only economic loss is recoverable in the Employment Tribunal, then such difficult questions of existence of a medical or other condition and of causation will only arise in the context of proof of economic loss, i.e. where there is temporary or continuing loss of employment or loss of employment opportunity. Without therefore placing any kind of limitation upon the nature of the mental or psychological or physical condition or state of mind in respect of which recovery can be sought, recovery will only arise if such condition or state of mind, due to what we have called internal reasons or external reasons, impact upon continued employment: and then subject to the statutory cap. If non-economic loss is recoverable, then it would be likely to arise (subject to the statutory cap) in every case, and the seriousness of the condition or mental state, and whether there is a medical condition or not, could only go to the question of quantum.

(iii) Some of these difficulties can be illustrated from the very cases put before us:

(a) In the case of Dunnachie, reprehensible conduct by the respondent was found: the acting food manager over a period of some months humiliated, behaved aggressively towards and threatened Mr Dunnachie, such that he became extremely distressed and was absent from work for two to three weeks owing to stress. It was obviously a serious case of breach of contract by the employer, as was found by the Employment Tribunal, and as such amounted to a finding of repudiatory conduct, such as to justify the conclusion of constructive dismissal. However Mr Dunnachie was able to take up his new position after his resignation without a break in employment, and his case would appear to be no different from many other constructive dismissal cases, i.e. where the employer's conduct is serious enough to amount to a fundamental breach or breach of the implied term of trust and confidence, and no medical evidence was called, nor any report from a doctor produced. The damage to his family life to which the Tribunal refers in the Decision was the fact that in his new job he had less time with his young family. The Tribunal, after concluding that it had jurisdiction by reference to Lord Hoffmann's speech in Johnson, set out, in paragraph 18 of its Decision, its conclusion (including its reasoning) very shortly:

"The applicant has claimed £10,000. We think that that is a reasonable sum to order the respondent to pay under this head. For the applicant has, as a result of the respondent's actions, suffered some loss of professional status. He was humiliated and distressed by the manner of his dismissal. That process lasted over several months. The consequences have clearly affected his family life, as we have described earlier. If anything, the applicant's claim is modest in this regard."

As it happens, this £10,000 is the largest of the amounts awarded in the twenty or so cases to which we have been referred; as we have said no medical evidence was called, nor indeed was it suggested there was any temporary or continuing condition, and the £10,000 awarded is of course approximately one fifth of the total statutory cap.

(b) In Dawson there was in any event going to be a dispute about the causation and aetiology of what was proved to be a medical condition, plainly impacting on the applicant's employability, with a substantial claim for economic loss, to which we will return below. However for the purpose of this discussion, the relevance relates to the impact of the condition so far as concerns a claim for non-economic loss if recoverable: and the same problems of causation would apply even if the claim were not as to the existence of a medical condition but simply as to distress, stress or humiliation. The arguments that are raised, which would thus need to be raised in respect of non-economic loss, whether or not there was a claim for economic loss in this regard, would revolve (as they do in Dawson) around conflicting jurisprudence. The issue would be whether, on the particular facts of the given case, Hatton applied, such that only that proportion of the loss was recoverable which could be ascribed to the particular identified cause ("In principle a wrongdoer should pay only for that proportion of the harm suffered for which he by his wrongdoing is responsible" per Hale LJ at paragraph 36) or whether, as Mr White QC contends in this case and would be submitted in other cases, by reference to Hotson v East Berkshire AHA [1987] AC 750, the non-economic loss recoverable, e.g. for stress or depression, would be recoverable in full, even if the repudiatory conduct by the employer, and/or the dismissal, was only one of the causes of the condition or state of mind alleged, because it had materially contributed to it. It is noteworthy that in addition to the £8000 (reduced, subject to this appeal, to £3200 because of the aetiology) awarded in respect of the depressive condition, by cross-appeal Mr Dawson seeks an award for compensation for distress.

(c) In King for example (one of the cases originally conjoined by the order of 17 February, but no longer before us because in the meanwhile there was a successful appeal on liability, such that it was remitted for rehearing before a different tribunal, and the parties agreed the matter should not continue before us) if there had been an entitlement to recovery for non-economic loss, there would have been an issue as to whether the damage to family life, alleged by the applicant, resulted from the termination of the contract or from a prior alleged breach of contract by the employer.

(d) In Williams, the third of the cases before us, no sum was awarded by the Tribunal, because of its conclusion that it had no jurisdiction to make an award in respect of non-economic loss. However it is worth noting what the applicant's submission was in respect of non-economic loss. He had had a previous bout of depression a few years earlier; and there was evidence (by reference to a GP's letter and GP's notes, but not supported by any medical report) that he now suffered significant depression, caused by his finding the manner of his employer's investigation, while he was suspended for three months, humiliating, degrading and upsetting. This led to recovery of economic loss in respect of what the Tribunal found should be an extra three months, in addition to the nine months which for ordinary economic reasons it would be likely to take him to find alternative employment. So far as the non-economic loss claimed (but not awarded), in paragraph 6 of the Agreed Statement of Facts and Issues the following is recorded:

"The appellant claimed an award in the region of £34,000 (being £14,000 for personal injury and £20,000 for injury to feelings) compensation under Johnson … He claimed for injury to feelings, personal injury, damage to family life and reputation (including aggravated damages)."

This would be more than two-thirds of the statutory cap, for non-economic loss alone.

(e) Additionally we have been informed of a further fifteen cases in Employment Tribunals in which awards for non-economic loss in unfair dismissal claims have been made, in Mr Bowers QC's schedule, plus the stayed case of Truelove. There are three awards of £5,000 or more, eight awards (nine including Truelove) of between £2,000 and £3,500, one of £1500 and three of less than £1,000. In some there is found to have been a medical or psychiatric condition caused or the exacerbation of a pre-existing such condition; in others there are findings only of depression, humiliation, damage to self-esteem or self-confidence or unnecessary stress or sleepless nights. Some of them relate to the manner of dismissal, others simply to the fact of dismissal. The only decision of an Employment Tribunal that has been specifically put before us has been the Decision of the Bedford Employment Tribunal in the case of Gwatkin, in which that Tribunal, having determined that it had jurisdiction to award in respect of non-economic loss, concluded, in paragraph 52 of its Decision, as follows:

"We have found that the Applicant's medical condition pre-dates the difficulties at work of which she complains, that her medical condition caused her to be extremely sensitive to issues that arose at work and that, until the time of her dismissal, those issues were not attributable to any culpable conduct on the part of the Respondent. However, the narrower issue for us to determine is the loss sustained in consequence of the dismissal. In this connection we have already found that on the balance of probabilities the Applicant's medical condition would have prevented her continuing in the respondent's employment beyond December 2001, even if she had not been unfairly dismissed. We similarly find that the aggravation of the Applicant's medical condition caused by her unfair dismissal is limited to this same period, as it is probable that other events in the intervening period would have had a similar triggering effect. We also take into account the fact that any objective observer would regard the Applicant's successful internal appeal as having exonerated her, thereby removing any humiliation that she had suffered by having been dismissed. The Applicant's distress at her dismissal was not removed by her successful appeal, but we find that it is appropriate for us to have regard to the appeal in our consideration of what is just and equitable. In deciding upon the compensation under this head, we have done our best on the available medical evidence to separate out the loss consequent upon the dismissal insofar as that loss is attributable to action taken by the Respondents. In all the circumstances we consider the amount which it is just and equitable to award under this head is £5,000."

This £5000 award was described by the Tribunal in paragraph 52 of the Decision as having been "compensation in respect of the distress and humiliation suffered by her as a result of her unfair dismissal": her recovery in respect of loss of earnings, i.e. her economic loss, only amounted to £3128.

It has been salutary and of concern to be able to see some examples and consequences of the working through of recovery of non-economic loss.

45. If non-economic loss would, as we anticipate, be sought in most if not all cases of unfair dismissal if it be found to be recoverable, then a regrettable consequence will in our judgment be likely to follow. In the absence of an agreement as to the facts, which appears wholly unlikely and indeed impracticable unless there be representation on both sides, it appears impossible to us in practice for there to be what there is, in our experience, at present on many occasions, namely a concession by the employer as to liability, leaving a hearing on remedy only. For, at least in constructive dismissal cases, the entire facts will need to be gone through in order to establish not simply that the claimant has suffered some emotional, psychological or physical consequence, and the extent and duration of it, but in particular, in constructive dismissal cases, the causation of it. This falls to be contrasted with the situation in which only economic loss is recoverable, because then the case will start with someone who is out of work longer than normal, or is claiming ongoing loss of employment opportunity or employability, and then only will the issue arise as to whether that results from the dismissal or constructive dismissal.
46. There is, as set out in paragraph 11 above, express provision for the recovery in relation to discrimination cases of compensation for injury to feelings. This of course arises by express provision in relation to an area where (i) there may be no economic loss suffered (ii) a new right and remedy have been created which did not exist at all even by analogy at common law (iii) Parliament and the courts have taken a stern view of the conduct complained of (see for example McConnell v Police Authority for Northern Ireland [1997] IRLR 631 at para 28). Until the words of Lord Hoffmann in Johnson, non-economic loss was not thought to be recoverable in Employment Tribunals in respect of claims for unfair dismissal, there is no clear express provision in the statute, the act of dismissal and even of constructive dismissal has not been characterised as especially pernicious, and there are, subject to such limitations as have been placed by the common law courts, analogous rights and remedies at common law. Employment Tribunals have, with guidance from the Court of Appeal, as in the recent decision of Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 [2003] IRLR 102 been able to award sums (not subject to any statutory cap) in respect of injury to feelings in discrimination cases. In Sheriff v Klyne Tugs Ltd, counsel submitted to the Court of Appeal that the expertise of Employment Tribunals was in matters of employee/employer relations, and that they were not fitted to deal with complex medical questions. We have referred to this question in paragraph 44(i) above. Counsel in Sheriff referred to a dictum of Morison P in the Employment Appeal Tribunal in London Fire and Civil Defence Authority v Betty [1994] IRLR 384 at para 10:

"It seems to us that Tribunals should not be concerned to ascertain whether the illness which is the reason was caused or contributed to by the employer. The question in issue is whether, in the light of the employee's medical condition and the inquiries and procedures the employer made and used before deciding to dismiss, the dismissal was fair. To introduce questions of responsibility for illness or injury would take a Tribunal down a path which could lead to endless disputes on matters upon which they would have no special expertise. We do not consider that the employer has disabled himself from fairly dismissing an employee whom he has injured. If the injury was caused by a breach of the employer's duty to the employee then the employee will be entitled and able to recover appropriate compensation."

Stuart Smith LJ at para 16 of Sheriff said:

"The issue in that case was not whether the Industrial Tribunal had power to award compensation for personal injury; but I see the force of Morison J's observation. Nevertheless the consideration cannot in my view override the statutory language."

Of course the statutory language in the discrimination statutes which compels that conclusion is different from that we are considering.

47. But it is not simply a question of Employment Tribunals having to gain more expertise, or to acquire similar expertise to that of the common law courts, or to expand their task from the realm of discrimination into unfair dismissal. In practice, notwithstanding the suggestion of Stuart Smith LJ in Sheriff at paragraph 21 that in discrimination cases, where a claim included or might include injury to health as well as injury to feelings "a complainant and his advisers may wish in those circumstances to heed the advice of the editors of Harvey … to obtain a medical report", medical reports have been rare in discrimination cases. If non-economic loss were to be recoverable, then a whole new approach would be required in unfair dismissal cases, and a substantial number of questions would need to be answered:

(i) New rules would need to be introduced relating to the exchange of medical reports. Tribunals are intended to be informal jurisdictions, and there are no such rules at present for presentation of medical evidence, whether as to disclosure of medical reports or requirements that employees undergo medical examinations: the question of a compulsory joint expert and/or a compulsory medical examination may have to be considered, and certainly greater formality in this regard. It would be probable that there would be a need for a medical report in every case where a psychiatric condition is alleged. Medical experts would be likely to appear far more frequently in the Tribunals, and more guidance as to the provision of medical evidence such as was given by Lindsay P in De Keyser Ltd v Wilson [2001] IRLR 324 at paragraph 36 would have to be considered. All this in the context of informal proceedings where:

(a) Legal Aid is not available, and parties, particularly applicants, are very often unrepresented.

(b) Costs (and hence the increased costs resulting from exploration of such matters) are not normally recoverable.

(c) Unlike not only claims in the common law courts but indeed claims for discrimination, there is a limit on recovery; which brings into play questions of proportionality.

(ii) Further matters were raised by Mr Bowers QC as requiring consideration:

(a) Would such almost automatic claim and/or recovery of compensation in respect of stress or distress, humiliation or unhappiness in respect of an unfair dismissal not be a matter which at any rate now, so long after the implementation of this legislation, requires consideration by Parliament? Mr Bowers QC submits that it should be set against asserted anxieties as to the growth of a 'compensation culture'; he points to the concerns about levels of compensation expressed in Alexander v Home Office [1988] IRLR 190 at paragraph 13 and Ministry of Defence v Cannock [1994] ICR 918 at 952D in the employment field and by Bingham MR (as he then was) in John v MGM Ltd [1997] QB 586 at 611, which, although relating to defamation and jury awards, has been subsequently frequently relied on in discrimination cases.

(b) He raises this specifically in the context that such compensation would be awarded by an Employment Tribunal as 'industrial jury', which might thus be the more likely (in the words of Phillips P in Lifeguard Assurance v Zadrozny [1977] IRLR 58 at para 11) "in assessing compensation … [to] fall into the benevolent error of awarding compensation, not for some loss due to the unfair nature of the dismissal, but more out of sympathy for the predicament in which the employee finds himself".

(c) A psychiatric condition is plainly to be assimilated to personal injury (Page v Smith [1996] 1 AC 155), and thus on any basis would be recoverable as part of the proposed non-economic loss claim in unfair dismissal (although, as discussed in paragraph 16 above, nevertheless not justiciable before the very same Employment Tribunal if claimed by way of damages for breach of contract). We have already assumed (see paragraph 41 above) that there would be no restrictive distinction as to recoverability, as in Gogay, between such condition and mere frustration, disappointment or upset. But once non-economic loss can be claimed both in the High Court and the Employment Tribunal, care would have to be taken to avoid the risk of double recovery and/or to address the problem of severability; for example, if there were simultaneous claims by an (ex)-employee in respect of compensation for non-economic loss for unfair dismissal in an Employment Tribunal and in the High Court in respect of general damages in respect of psychiatric injury within Walker v Northumberland CC [1995] ICR 702 and Hatton, resulting from a prior breach or breaches.

(iii) In any event there would need to be guidance, as adumbrated by Mr Bowers QC, in relation to the following questions:

(a) Would an award be made, where the irritation or annoyance caused by dismissal is short-lived or transient?

(b) Would an Employment Tribunal be entitled to decide that although there has been some injury to feelings it is not just and equitable to make any award on the facts of the particular case?

(c) How far would there become a standard procedure that a medical report is to be required?

(d) How far would such Employment Tribunal awards have a broad similarity to the level of awards in personal injury cases, and insofar as no medical condition is alleged or established, but non-economic loss is still to be awarded, rank below them?

(e) Would different sums need to be awarded for different heads of non-economic loss, as was sought in Williams and indeed in Dawson (as set out in paragraph 44(iii) above), and as discussed in HM Prison Service v Salmon [2001] IRLR 425 at para 29; or would it be advisable not to make separate awards e.g. for injury to feelings and loss of congenial employment (Ministry of Defence v Cannock [1994] IRLR 509 at paragraphs 93 to 97), or as now recommended at common law, where it is not now considered usual to attribute different sums to pain, suffering and loss of amenity (per Lord Woolf MR in Heil v Rankin [2001] QB 272 at paragraph 39)?

(f) Would aggravated damages be available to be awarded (it was claimed in Williams)? Is unfair dismissal a tort? Even if the definition of loss in s123 were defined as including non-economic loss, would it to be defined as allowing for aggravated damages?

Clearly, as both sides have accepted, full reasons would be required for conclusions as to recovery of non-economic loss reached by the Employment Tribunal: and in that context it would hardly seem that the words used by the Tribunal in Dunnachie quoted in paragraph 44(iii) above would be sufficient.

Conclusions

48. First. Prior to Johnson there has been no recovery for non-economic loss in claims for unfair dismissal in the Employment Tribunals.
49. Secondly. Johnson does not require there to be a change in the law, because Lord Hoffmann's views expressed in paragraph 55 of his speech were obiter.
50. Thirdly we are persuaded by the arguments as to construction set out in paragraphs 9 to 18 and 20 above (and, although we do not need to have recourse to Pepper v Hart, if we did that would fortify our conclusion) and as to policy set out in paragraphs 39 to 47 above. We are satisfied that the fundamental nature of these claims in the Employment Tribunals is a (limited) economic claim, both in respect of unfair dismissal (limited to £53,500) and wrongful dismissal or other claim for damages for breach of contract of employment (expressly not including damages for personal injury) (limited to £25,000). That self-contained and comprehensible structure appears to be what was intended by the legislation, and has worked well. There is no need for it to be changed, and considerable problems would ensue if it were to be. So far as the High Court is concerned, there can be claims for damages, including some non-economic loss, for breach of an implied term of the contract of employment short of dismissal (e.g. McCabe): and if Lord Steyn had had his way (or if there were legislative change or reconsideration by the House of Lords) there would be no reason why there could not be recovery for economic loss arising out of a wrongful dismissal over and above loss of earnings during the notice period, or even recovery of non-economic loss, based upon breach of an implied term of the contract (for example such a term as was canvassed by Lord Hoffmann himself in paragraph 46 of his speech by reference to a duty of good faith), if it were so concluded. But, particularly as there is no distinction in the Employment Tribunals between the manner and the fact of dismissal, in our judgment there cannot and should not, simply as a result of the limitation upon the remedy in the High Court imposed or preserved in Johnson, be an unconsidered extension into every unfair dismissal case of a claim for general damages for distress/depression/stress/ humiliation/injury to feelings/loss of family life resulting from a dismissal. If there is a need in the circumstances and expectations of today's society for a route for the recovery of severe non-economic losses (such as a psychiatric injury) arising from the manner of a dismissal, then we are satisfied that the Employment Tribunals are not available. Some common law route may yet reopen, but, unless Parliament chooses to change and enlarge the jurisdiction and remove the statutory cap, we regret that the statutory route is closed.

The individual cases

51. Given the firm view that we have come to that there is no recovery of non-economic loss in unfair dismissal in the Employment Tribunals, we shall not now carry out the exercise of laying down those detailed forms of guidance which the Employment Appeal Tribunal or a higher appellate court would need to do, in answer particularly to some of the matters raised in paragraph 47 above. We need to say little further in relation to the individual cases of Dunnachie and Williams than that in the former case the appeal in respect of the award of £10,000 for non-economic loss is allowed, and that in the case of Williams the appeal in respect of the refusal by the Employment Tribunal to award £34,000 or any sum in respect of non-economic loss is dismissed.
52. So far as concerns the issues specifically raised by the parties in Dunnachie in their Statement of Agreed Facts and Issues, Issue 1 raises the issue as to whether the Employment Tribunal erred in law in awarding the sum of £10,000 for non-economic loss, the answer to which is plainly in the circumstances that it did; but in any event there is no or no sufficient consideration of causation, and no explanation or reasoning as to how the sum is arrived at, even if there were such jurisdiction.
53. Issue 2 was set out as follows:

"Whether in a case of constructive dismissal, the employment tribunal may take account of matters in the period leading up to the resignation of the appellant and/or the expiry of his notice to terminate to determine the appropriate award in respect of "the loss sustained … in consequence of the dismissal" (s123(1) ERA 1996)."

Insofar as this was a further clarification of the question arising as to the award of non-economic loss, it falls away with the conclusion that no non-economic loss is in any event recoverable. So far as it concerns the question as to whether, in a case of constructive dismissal, economic loss can be recoverable if it is consequential upon matters – i.e. the conduct of the employer – prior to the expiry of the contract of employment, then that would depend upon whether the conduct causative of the loss (i.e. for example the unemployability through internal or external reasons of the applicant for some period) is consequential upon the repudiatory conduct of the employer which was accepted by the employee so as to constitute the constructive dismissal.

54. We turn to Dawson. This appeal falls into two parts. First there is the appeal by the employer against the award of any sum in respect of non-economic loss and the cross-appeal of Mr Dawson in relation to its reduction from £8,000 to 40% of that sum by virtue of the aetiology of the depressive condition as found by the Tribunal, and for additional sums for distress. The second relates to Mr Dawson's appeal against the finding as to the quantum of economic loss awarded to him, which he seeks to increase.
55. As to the award with regard to non-economic loss of £3200, being 40% of the £8000, of course the whole award falls away as a result of our finding that there was no jurisdiction to make it (as does Mr Dawson's further appeal). However in the light of the fact that there was argument by Mr White QC, to which Mr Bowers QC responded, as to whether, assuming the existence of the jurisdiction, the Tribunal was right to reduce the sum of £8000, we shall deal shortly with our conclusions on the point:

(i) The medical evidence, which the Tribunal accepted, was called pursuant to an order of the Employment Tribunal made at the hearing for directions on 24 January 2002, whereby:

"A joint letter of instruction is to be sent to the appointed medical adviser including the following questions:

(i) What was the nature of the applicant's medical condition, if any, arising in October/November 1999?

(ii) To what extent was the applicant's medical condition caused by or aggravated by the dismissal and the circumstances thereof? In this connection the medical adviser is to be provided with a copy of the decision and extended reasons of the Tribunal.

(iii) If the medical condition was to any extent caused, or aggravated, by the dismissal, for how long did the dismissal remain a factor in the continuation of his condition?

(iv) How long did the applicant remain unfit for work due to his medical condition (howsoever caused)?"

The Tribunal's finding, accepting the evidence of Dr Vincenti, the jointly instructed expert, as to the existence and aetiology of the depressive condition, was that Mr Dawson's previous psychiatric history probably accounted for some 30% of the aetiology, the background stress at work due to the type of job he was doing a further 30% and his suspension and subsequent dismissal the remaining 40%: and it was by reference to that finding that they reduced the £8000 to 40%. Mr White QC submits that the common law rules of causation established in Hotson should have been followed by the Tribunal, so that as the depressive effect of the suspension and dismissal on any basis at least materially contributed to Mr Dawson's condition, and as his antecedent psychiatric history could rather be seen as rendering him vulnerable to the onset of the depression than as causing or contributing to it, Mr Dawson ought to have been entitled to the whole of the "general damages" award for non-economic loss, being his depressive condition, as resulting from the unfair dismissal. Mr Bowers QC submitted that applying common law principles (which he did not accept were appropriate, even apart from his submission that there was no jurisdiction in the Employment Tribunal) the appropriate course to follow was that laid down in Hatton. Hotson may apply where the court is only able to reach a conclusion that the harm resulting from a number of different difficulties is truly indivisible, but on the basis of the evidence accepted by the Tribunal, such is not the case here. He refers to paragraph 36-40 of Hatton in which the conclusion is reached by Hale LJ that the learned editors of Clerk and Lindsell on Torts 18^th Ed. [2000] para 2-21 are correct to state that "where it is possible to identify the extent of the contributions that the defendant's wrong made to the claimant's damage then the defendant is liable only to that extent, and no more". We agree with Mr Bowers QC as to the particular circumstances of this case. We recognise however that Mr White QC may well have been right on different facts, and that is one of the reasons why we would have been concerned at the recoverability of non-economic loss for unfair dismissal in the Employment Tribunal (as set out in paragraphs 44(ii) and (iii)(b) above), simply because, in the absence of the detailed evidence of aetiology that there was in Dawson, a tribunal faced with someone who is depressed or upset or stressed, or has some psychological condition, resulting from a number of different causes, one (material) element of which is an unfair dismissal, these very arguments would raise enormous problems, within the confine of statutorily capped recovery.

(ii) However, it is our view that there would have been another answer, as put forward by Mr Bowers QC, which we accept, to Mr White QC's submissions. Unlike the common law courts, the jurisdiction under s123, whether or not it had extended to non-economic loss, is based upon "such amount as the tribunal considers just and equitable in all the circumstances". We would have concluded that strict Hotson principles would in any event not have applied in this case, so that this Employment Tribunal's conclusion on the evidence before it would be justified.

We should mention that Mr Bowers QC in any event submitted that Mr White QC's argument does not appear to have been run below before the Employment Tribunal, the principles of Kumchyk v Derby County Council [1978] ICR 1116 should have prevented Mr White QC being able to rely on it on appeal in any event.

56. It is apparent that, if there had been jurisdiction to award recovery of non-economic loss, we would have dismissed Mr Dawson's appeal against the finding of £3,200. We turn to the question of economic loss. We of course dealt with this matter because it was before us as a discrete issue, independent of the main questions, which could conveniently be dealt with shortly to avoid a further hearing.
57. The Tribunal awarded compensation for loss of sick pay from the date of Mr Dawson's dismissal on 23 November 1999 until 5 October 2000, corresponding to his entitlement under the contractual sick pay scheme. The Tribunal at paragraph 5(ii) rejected Mr Dawson's argument that the suspension and dismissal were "the final straw which led to his depression and without which it would not have occurred". It set out its reasons as follows:

"(a) The Tribunal notes that the applicant was vulnerable after the first episode of depression in 1997 to a further episode.

(b) The first episode had nothing to do with the applicant's dismissal, nor was it established the respondent was guilty of victimisation or sex discrimination in respect of that period. That might have been a subject of a personal injury claim, if it could be established that the respondent was negligent and the illness was caused thereby. That is not a matter for a Tribunal and it is noted that the applicant has not sought to bring P.I. proceedings in the courts.

(c) There were other stressors at work in 1999 which Dr Vincenti identified and separated from the suspension and the dismissal. Those included the assault on 24 August 1999.

(d) It is noteworthy that when the applicant first attended his GP with a complaint identifiable as depression on 4 October 1999 he did not even mention to the doctor his suspension. The doctor's notes record the following "violent incident at work, works in an offender centre, not coping, support from partner but not mother, edgy, poor concentration, dyspepsia and poor appetite, med 3 for two weeks, urgent counselling. It is also noteworthy that in 1997 the applicant also did not identify complaints about his treatment by management at work.

(e) Most significantly the applicant went off sick on 4 October 1999 two weeks after his suspension but seven weeks before the hearing leading to his dismissal.

(f) The Tribunal noted that the two "non-dismissal" factors in the aetiology of his depression amounted to 60%."

It continued as follows:

"(iii) The Tribunal concludes that even disregarding the suspension and dismissal, the applicant would have been off sick and probably for a substantial period of time, noting that his previous episode had resulted in six months off.

(iv) Accordingly in assessing the loss flowing from the dismissal, the Tribunal considered it just and equitable to award what would have happened if the applicant had not been suspended or dismissed. In our view, on the balance of probabilities, the applicant would have remained on the sick. He would have received sick pay for a maximum of one year of which six months would have been on full pay and six months on half. The Tribunal did not consider that the respondent would have been fairly dismissed at any time during that period, not least because his illness was work-related, and would probably have satisfied the test of disability in Schedule I of the Disability Discrimination Act 1995.

(v) The [medical] report in particular at paragraph 12.7 quoted above led the Tribunal to conclude that it was not satisfied on the balance of probabilities that if the [dismissal] had not occurred, the applicant would have been fit to have returned to work earlier, and for this reason the Tribunal did not consider it just and equitable to award him loss of earnings beyond the twelve-month period. However, this factor the Tribunal did take into account into considering his suspension and dismissal did have an adverse effect upon his depressive illness, which the Tribunal took into account into a accepting whether an award should be made for injury to health [this is their non-economic loss award].

(vi) Insofar as it is relevant, the Tribunal rejected the respondent's contentions that the applicant acted unreasonably in returning to work at the end of the period of depression in a lower paid employment avoiding what may be described as the caring professions. The Tribunal thought his decision entirely reasonable on medical grounds. The Tribunal considered however that the applicant could not ascribe any future reduction in his earnings beyond a few months to his dismissal. The applicant has substantially recovered, and we do not see any current reason why he should not seek more demanding and higher paid employment.

6. Upon the basis of the above conclusions, the Tribunal awarded compensation for loss of sick pay for the period from 4 October 1999 until 5 October 2000, deducting the pay that the applicant in fact received up to the date of dismissal on 23 November 1999. If the suspension and dismissal had not occurred that is what the applicant would have been paid by the respondents and was thus his loss flowing from the dismissal."

58. The Notice of Appeal alleged that the failure to award economic loss after October 2000 was perverse. We cannot accept this, not least given the difficulty in establishing perversity on the part of an Employment Tribunal re-emphasised in Yeboah v Crofton [2002] EWCA Civ 794, [2002] IRLR 634. It is apparent, as Mr Bowers QC pointed out, that the onus of proof is upon the applicant to establish that he suffered loss consequent upon the employer's dismissal, not, as Mr White QC suggested in his skeleton, such that the employers "failed to show that he would have been absent from work in any event". The assertion was made, as appears from paragraph 5(ii) of the Tribunal's Decision, that his depression would not have occurred without his suspension and dismissal, and, for the reasons which the Tribunal set out in the rest of that subparagraph, which are derived from the evidence before it, the Tribunal was not persuaded; but it rather concluded that the episode of depression was prolonged and intensified (see paragraph 7 of the Decision) by the 40% contribution from the employer's conduct. Dr Vincenti was not, as can be seen from the jointly agreed instructions, specifically asked the question as to whether Mr Dawson would have been unfit to work even without the dismissal, but the Tribunal relied upon the evidence before it, and reached its own conclusion. We agree with Mr Bowers QC that the Tribunal had before it, recited, and was entitled to accept and rely upon the evidence expressly set out in paragraph 5(ii)(a) to (f). In particular we accept his submissions that:

(i) the Employment Tribunal did not wrongfully treat the appellant as an expert as to the cause of his own condition, as Mr White QC contended, but rather looked to what he said to his doctor contemporaneously as evidence of the extent, seriousness and manifestation of his condition.

(ii) the Tribunal, though finding that the suspension was an essential element in the dismissal for the purpose of deciding whether damage caused by the suspension could sound in damages at all, was entitled to look at the fact that Mr Dawson was off sick before the dismissal. The weight of the evidence was a matter for the Tribunal.

We are satisfied that the Tribunal was entitled to interpret Dr Vincenti's report as concluding that there were three causes of the depressive condition, of which the suspension and dismissal were only one.

59. In those circumstances there was plainly, in our judgment, evidence upon which the Tribunal could reach the conclusion it did, and it was just and equitable to award the applicant, in all those circumstances, only a period of slightly short of one year, and not the full period for which in fact he remained unemployed. That is the Tribunal's conclusion in paragraph 5(v). In paragraph 5(vi) it went on to say, plainly obiter because the subparagraph is prefaced "insofar as it is relevant", that they would not in fact have been persuaded in any event, notwithstanding the contention on Mr Dawson's behalf to the contrary, that any more than a few months beyond September 2001 would have been a material period. As Mr White QC effectively accepted in argument, the fifth ground of appeal, which suggested that the Tribunal said it would have awarded a few extra months and then did not do so, is based upon a misunderstanding of the conditional and obiter nature of the subparagraph in question. The Tribunal appreciated the full factual position, and concluded that it was just and equitable to award only up to October 2000, because of the conclusion that it had reached that it was compensating Mr Dawson only for the prolongation and exacerbation of the depression and consequent unemployment.
60. We accordingly dismiss Mr Dawson's appeal in respect of both economic and non-economic loss, while for the reasons we have given, allowing the employer's appeal in respect of non-economic loss.