United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW SHORT (Of Counsel) Instructed by: Messrs Weightman Vizards Solicitors High Holborn House London WC1V 6RL
For the Respondent	MR MARC JONES Solicitor Messrs Underwoods Solicitors 83/85 Marlowes Hemel Hempstead Herts HP1 1LF


 


JUDGE BIRTLES

Introduction

1. This is an appeal from the decision of an Employment Tribunal sitting at London South on 4 July 2002. The decision of the Tribunal was entered in the Register and sent to the parties on 30 July 2002. The chairman was Mrs F J Silverman and the members were Mrs A Aziz and Miss J Lewis. Both Mr Jones and Mr Short who appear in front of us today appeared then and we are grateful to them for their very helpful skeleton arguments and their submissions today.
2. The short material facts are that the Respondent to this appeal is a Mrs D Tilak. She was employed by the Appellant from April 1996 and in the course of her employment she alleged that she had suffered a number of acts of racial discrimination. It is not necessary for the purposes of this appeal to set those out in any detail.
3. Suffice it to say that she brought a complaint to the London South Employment Tribunal by way of an Originating Application received on 14 April 1998. A Notice of Appearance was entered by the Appellant, Surrey County Council but proceedings were stayed for some considerable time while Mrs Tilak's complaints were investigated. They were not resolved to her satisfaction and she therefore continued with her complaint in the Employment Tribunal.
4. The case was heard on 26-29 November 2001 before the same Tribunal whose decision is subject to appeal here today. The Employment Tribunal unanimously decided that Mrs Tilak had been discriminated against on the grounds of her race but only in respect of two matters. First, that a Mr MacKinlay, a line manager for the Applicant, had failed to deal with her complaint of race discrimination and that failure was an act of race discrimination in itself. Second, the Tribunal held that a further act of race discrimination occurred in November 1997 when her request to be accompanied by a member of the Black Worker Support Group to a meeting relating to a complaint of racial discrimination was refused, her complaint was never fully investigated and was allowed to lapse because the employee against whom the complaint had been raised had left the employment of Surrey County Council. Thus the Employment Tribunal found in its original decision on liability that there were only two acts of race discrimination and implicitly rejected all the other allegations in the Originating Application. That decision was entered in the Register and sent to the parties on 14 January 2002.
5. There was no appeal against that decision on liability. The remedies hearing which is the subject of this appeal took place on 4 July 2002 and the unanimous reserved decision of the Tribunal was that Surrey County Council was ordered to pay Mrs Tilak the sum of £71,428.58. The remedies hearing had before it two reports. The first report on behalf of Mrs Tilak, was from Dr David Prothero from the Priory Hospital in North London. The second report was from Ms Adrianne Reveley who was a consultant psychiatrist at the Maudsley Hospital. Each report is lengthy and was written after each of the consultants had seen Mrs Tilak for examination. In both cases Mrs Tilak was accompanied by her daughter Elitha Berry who appears to have played some part in the interview in each case. As is sensible practice the consultants also subsequently discussed the matter and drafted a joint psychiatric statement. Those were the documents before the Employment Tribunal. We can also see from the decision of the Employment Tribunal that Mrs Tilak gave evidence and both Mr Jones and Mr Short made oral submissions. We also note that neither of the consultants was called to give oral evidence at the hearing.

The Employment Tribunal Decision

6. The critical paragraph is paragraph 6 which I propose to read:

"6. It was clear from the medical reports supplied by both parties that the Applicant had a history of depressive symptoms which pre-dated her employment with the Respondent but that her condition had deteriorated due to racial harassment at work. She also has continuing physical ailments which impair her ability to work and contribute to her depressed state. Currently and for the foreseeable future the Applicant is unable to resume work. When and if she does recover sufficiently to be able to seek work she will be disadvantaged on the job market by her long absence and lack of up to date training. The Tribunal notes that both medical experts agree that the incidence of depression which occurred from 1998 onwards was exacerbated by the Applicant's treatment at work. Dr Revely (for the Respondent) did not specify a percentage by which she attributed causation by the Respondent whereas Dr Prothero attributed the current incidence of depression 75% to the Respondent's conduct and 25% to other causes. Dr Revely had available to her a copy of the Tribunal's decision on liability whereas Dr Prothero seems not to have seen this document. As a consequence Dr Prothero seems to have taken into account in his report various incidents related by the Applicant which were not the subject of the Tribunal's decision on liability in so far as they were not part of the evidence at the substantive hearing. Both experts agree that it is likely that the Applicant would have suffered a depressive interlude in any event, partly due to her vulnerability to this problem and partly due to her underlying physical condition. The Applicant's previous history of depressive illness was mild (in so far as it had only required medication from her general practitioner) and the Tribunal forms the view, based on reading the medical reports supplied to it in this case, that the depression which led to the Applicant's present absence from work was greatly exacerbated by the Respondent's treatment of her and but finds the estimate of 75% causation, as suggested by Dr Prothero excessive."

Paragraph 7 begins in this way:

"7. The Respondent submitted that much of the Applicant's loss stemmed from causes other than the discrimination found proved by the Tribunal. They urged the Tribunal to prefer the report prepared by their medical expert to that of the Applicant because the Applicant's medical expert had reached his conclusions based on events which included some incidents which had not been in issue before the Tribunal at the full merits hearing of the case. They asserted that the Respondent's conduct had not had a substantial or long lasting effect on the Applicant's health and that damages should accordingly be moderate.

8. The Applicant submitted that an award in the higher category of injury to feelings was appropriate and asked also for aggravated damages. The Tribunal was asked by the Applicant to prefer the medical report of Dr Prothero, to that of the Respondent's expert whose report, according to the Applicant had been prepared merely to negate the Respondent's liability in the case. It was submitted that the Applicant's ability to cope with life and the effect on her relationships with her friends and family had been substantially affected. Neither medical expert was able to say what the Applicant's response to treatment would be. The Applicant was vulnerable to future episodes of depression.

9. The Tribunal makes an award to the Applicant as follows:

(a) For net loss of wages from 10 September 1998 to 4 July 2002 = £77,345.20.

(b) (Not relevant)

(c) We find however, that irrespective of the Respondent's conduct the Applicant would probably not have worked full time during this period of her underlying and pre-existing physical and mental conditions. We do not therefore hold the Respondent 100% liable for this loss and deduct 40% from this sum, reducing the net total loss of wages for this period to £40,260.81.

(d) We find that the Applicant will be unfit to work for a further period of one year and award one year's future loss of net wages assessed from 5 July 2002 – 4 July 2003 at £20,535.84 per annum, from which sum we have also deducted 40% (as above in (c)) giving a net total for future loss of earnings of £12,321.50."

(e) - (f) (Not relevant)

"(g) For psychiatric damages we award £10,000, but owing to the Applicant's long and documented history of depressive illness stretching over a 20 year period we feel it is appropriate to reduce that award also by 40% giving the net award of £6,000. In making this award the Tribunal had regard to the JSB's Guidelines on personal injury damages."

For the purposes of today I do not need to read either (h) or (i) and in paragraph 10 the total compensation awarded to the Applicant by the Tribunal was £71,428.58.

7. Before us today Mr Short for the Appellant, takes four points. I propose to deal with them in the order in which they appear in his skeleton argument. Mr Short argues that the reasons given by the Tribunal as to how it reached its conclusion simply do not exist if one reads the decision. There is no explanation in the Employment Tribunal's decision at paragraph 9 as to first, why it took the view that the Respondents were liable to compensate the Applicant for a period of up to 4 July 2003 given that their expert had said that any causation would have ended by the end of 1998. Second, it is said that there no reasoning to explain why the Tribunal deducted 40% in this case making a percentage causation of 60% when (a) the Applicant's own doctor, Dr Prothero, had estimated the causative element at 75% and (b) their own expert Dr Reveley had not given a percentage figure at all. In effect he says the Tribunal simply plucked a figure out of the air without giving any reasons as to why they have chosen that particular figure.
8. The second ground of appeal which is linked to the first ground of appeal is that the Tribunal misunderstood or did not take into account the medical evidence before it and in particular the matters which I have just referred to in the medical reports. The third ground of appeal is on causation namely that the Tribunal misdirected itself in law in awarding compensation based upon the Respondent's treatment generally rather than the two specific incidences of discrimination which it had earlier found had been committed by the Respondent. In other words the Tribunal had gone back on its earlier decision and had taken account of a number of other matters which it should not have done. The final ground which was argued was one of perversity based upon the factual matters which I had just outlined.
9. An appeal to this Tribunal lies only upon a question of law. Accordingly we have no power to interfere with a Tribunal's decision unless it can be shown:

(a) That the Tribunal misdirected itself in law or misunderstood or misapplied the law or

(b) That there was evidence to support a particular conclusion or finding of fact or

(c) That the decision was either perverse in that it was one which no reasonable Tribunal directing itself properly or the law could have reached or alternatively was one which was obviously wrong.

In the case of perversity it is usual to for the Employment Appeal Tribunal to see some of or all of the relevant part of the Chairman's notes of evidence so that we can try to follow the reasoning of the Employment Tribunal if it is not clear in the actual decision itself. We have not seen the Chairman's note in this case.

10. We heard submissions from both Mr Short and Mr Jones and I think it is right to say that Mr Jones conceded that the decision of the Employment Tribunal does not set out the reasoning that it should in reaching its conclusions in paragraph 9. We agree. It seems to us that looking at the structure of the decision paragraph 6 sets out an analysis of the medical evidence and summarises what are the main points in each report. It does not refer to the joint report. Paragraph 7 summarises the Respondent's submissions. Paragraph 8 summarises the Applicant's submissions and paragraph 9 reaches the conclusion. What is missing is a paragraph or paragraphs which leads us and indeed any reader of this decision to understand how or why the Employment Tribunal reached the conclusions it reached in paragraph 9, sub paragraphs (a) through to (i) but particularly (a), (c), (d) and (g). We have reminded ourselves of the relevant case law and in particular the decisions of the Court of Appeal in Tran v Greenwich Vietnam Community [2002] IRLR 735 at page 739 paragraph 17 per Sedley LJ. See also Meek v City of Birmingham District Council [1987] IRLR 250 at page 251-2 paragraph 12 per Bingham LJ as he then was. We have also looked at the decision of the Court of Appeal in R(H) v Ashworth Special Hospital Authority [2003] 1 WLR 127 at page 153 paragraph 80 where Dyson LJ says this:

"80 Against the background of these two general comments, I shall now identify the two principal reasons why I consider that the tribunal's reasons were inadequate in this case. First, as often happens, the tribunal was required to resolve a difference of opinion between experts as to whether the patient should be discharged. In such cases, it is important that the tribunal should state which expert evidence (if any) it accepts and which is rejects, giving reasons. This is as important in a case where the tribunal rejects evidence in favour of discharge as it is in a case where the tribunal rejects evidence which advocates continued detention. It is not enough for the tribunal simply to state that it prefers the evidence of A and B to that of C and D. It must at least indicate the reasoning process by which it has decided to accept some and reject other evidence. What this court said in Flannery v Halifax Estate Agencies Ltd (trading as Colleys Professional Services [2000] 1 WLR 377, 381-382 is as apt in relation to the decisions of tribunals as it is to lower courts generally. In giving the judgment of the court, Henry LJ said, at page 382, that the reach of what is required to fulfil the duty to give reasons depends on the subject matter:

"Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases.""

Applying these well established principles, it is simply quite impossible for this Appeal Tribunal to understand how the Employment Tribunal reached its conclusions in paragraph 9 of its decision.

11. I turn briefly to the other grounds of appeal. The second ground of appeal is that the Tribunal misunderstood and/or did not take into account the medical evidence before it. While that is a free standing ground of appeal it seems to us to be linked into the first appeal and to that extent we accept it. However, as a free standing ground of appeal we reject it. It is quite clear to us that a careful reading of paragraph 6 of the Employment Tribunal's decision together with the medical reports themselves and particularly the joint report (Tab 10 of the bundle) that the Tribunal were well alert to the fact that first, Dr Prothero appears to have taken into account other unproved allegations of race discrimination made to him at his examination of the Applicant second, that he had not seen the original Employment Tribunal decision on liability and third that Dr Reveley did not give a percentage quantification to the causative aspect of the two proven incidents of race discrimination in her report. We think the joint report does clearly set out the differences between the experts and we are not persuaded that the use of the words "racial harassment" in Dr Prothero's report was misconceived. If he was in any doubt as to the findings of the original Tribunal then he was put right in the joint report which was subsequent to his original report and came as a result of discussion with Dr Reveley. Ground three relates to causation and is very much the same point and we find no substance in it.
12. Perversity is a very difficult argument to make good. See Yeboah v Crofton [2002] IRLR 634. We think for the reasons we have given that the decision of the Employment Tribunal was flawed in its reasoning process but in our view it is not necessary for us to decide that the decision was therefore perverse as a matter of law.
13. We allow the appeal and order that there be a fresh full remedies hearing before a differently constituted Employment Tribunal. That of course will not necessarily be limited to the same evidence which was heard by this Tribunal. It may be of assistance to a new Employment Tribunal if it does hear from the experts witnesses themselves rather than try to analyse lengthy written reports. But that is the matter for the parties concerned.