United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CHRISTOPHER JEANS QC (of Counsel) Instructed By: The Council of the City of Sunderland Civic Centre Sunderland SR2 7DN
For the Respondent	MR JOHN HAND QC (of Counsel) Instructed By: Messrs Sinton & Co Solicitors 5 Osbourne Terrace Newcastle Upon Tyne NE2 1SQ


 


THE HONOURABLE MR JUSTICE RIMER:

1. This is an appeal by The Council of the City of Sunderland ("the Council") against a decision of an employment tribunal chaired by Mr J.R.Barton which sat and deliberated on the matter in issue over four days between April and November 2001 and promulgated their decision on 26 November 2001. The subject matter of the decision was a remedy hearing arising out of an earlier decision of the same tribunal that the Council had discriminated against the applicant, Mrs Linda Newsome, on the grounds of disability. By their decision on the remedy hearing, the tribunal awarded Mrs Newsome compensation of an amount that, after deduction of income tax, would provide her with a sum of £278,800.95, plus interest of £5,654.85, which the tribunal said totalled £284,155.20 although we calculate it to be £284,455.80. By its appeal to this appeal tribunal, the Council challenged the basis on which the Council arrived at that award and asked that the matter be remitted for a re-hearing to a differently constituted employment tribunal. The Council was represented before us by Mr Christopher Jeans QC. Mrs Newsome resisted the appeal and argued by Mr John Hand QC that the decision is unimpeachable. The hearing before the employment tribunal occupied two days in April and August 2001, and Mr Hand was instructed to represent Mrs Newsome on the second of those days, thus having the probably not very easy task of having to pick the case up in mid-stream.

General background: the liability decision

2. We take these from the employment tribunal's extended reasons on the issue of liability, which were promulgated on 15 February 2001. Mrs Newsome was employed by the Council as a senior finance and administration officer. She commenced her employment with the Council on 1 January 1973 and her employment ended on 3 September 1999. The Council is a unitary local authority employing some 14,000 employees and Mrs Newsome worked in the City Health and Housing Services Department. She is a qualified chartered management accountant and was employed within the Business Support Unit of the department, in a section managing private housing renewal finance. Her section had a budget approaching £700,000 and Mrs Newsome's duties involved the supervision of a small section, in charge of three staff members. Her job was sedentary in nature. She was a conscientious worker and twice a year was required to work to strict deadlines in connection with the preparation of the year-end accounts and the following year's budget. She was never known to miss a deadline.
3. In March 1995, Mrs Newsome began to notice pains arising from the neck, and suffered headaches. She sought specialist medical advice, and was absent from work for just over seven weeks in the autumn of 1995 following a knock to her elbow sustained at work. She continued to see her specialist, Dr Hingorani, and on his advice informed the Council of her problems, referring to pains in her elbow, inability to carry large loads, reduction in grip following the accident and neck problems related to the accident and the use of computers.
4. Mrs Newsome was again absent from work from 7 March 1997, suffering from dizzy spells. Her return to work interview described the nature of her illness as chest, neck and arm pains. A request was made with a view to seeking out a special chair to help with posture, but nothing was done.
5. On 26 June 1997, the occupational health physician saw her and reported of a possible need for a change of ergonomics and a visit by a disability employment adviser. He diagnosed a "work-related upper limb disorder." The result was that on 24 July 1997 a work station assessment was carried out on Mrs Newsome by a disability employment adviser, together with a physiotherapist. The recommendation, on 8 September 1997, was that she should be given a suitable chair with headrest, a footrest, a writing slope and a desk. Pending its provision, Mrs Newsome complained of the unsuitability of her current desk and she was taken off VDU work. The new chair and associated equipment was ordered, and was eventually supplied in early January 1998.
6. From 5 January to 23 February 1998, Mrs Newsome was again off work undergoing a back investigation. When she returned, her new work station had not yet been set up, or at any rate not set up correctly. This was then done, and on 4 March the occupational health physician authorised her to resume VDU use. From 4 August to 15 September 1998, Mrs Newsome was off work again, with low back strain, and she underwent back investigation. During this period, the personnel and training manager discussed the matter with the occupational health physician and indicated that the Council was coming to the conclusion that there were no further adjustments it could make for Mrs Newsome. He raised questions as to whether she was likely to return to full health, whether alternative employment would be suitable or whether she was permanently unfit.
7. On 14 October 1998, Mrs Newsome's specialist, Dr Hingorani, produced a report to the Council which in essence pointed out that she had a degenerative back condition. He suggested that persistent and aggravating factors tended to accelerate the process of degenerative change and said that Mrs Newsome found sitting for more than 15 to 30 minutes as aggravating her symptoms. Mrs Newsome was on sick leave again from 28 October 1998 to 3 September 1999 with general back and neck pain.
8. During this period the Council made various home visits to Mrs Newsome. The most significant one was on 16 April 1999, when it was agreed that a protocol would be drawn up within the following six weeks. This was to address the volume of work she could do, the content of it and how it could be done differently. Various suggestions were floated, such as looking at the structure of her job, the reporting arrangements and getting the occupational health physician's advice on the proposals.
9. No protocol was produced within the six week period. A draft was eventually sent to Mrs Newsome on 15 June 1999. It failed to address her workload or job description. All it did was to give her the right to complain to the financial controller should she feel that any requests and timescales given to her were unreasonable. The tribunal described it as "a meaningless set of platitudes." They found that the pressures on her of meeting deadlines prevented her from taking breaks which medical advice suggested she needed; and that after her absences from work she returned to a backlog and to the pressures of the same time constraints, which in themselves caused difficulty. Mrs Newsome complained about the draft protocol. Then, at a meeting on 3 September 1999, she proposed that she should take ill-health retirement, which the occupational health physician said he could support. Mrs Newsome duly retired on ill-health grounds.
10. Mrs Newsome's complaint to the tribunal was that the Council had failed to make reasonable adjustments for her under section 6 of the Disability Discrimination Act 1995. The tribunal found that she had established her claim that she had been the victim of disability discrimination. Their conclusions are in paragraph 10 of their reasons, where they said:

"10. … whilst superficially [the Council] can be said to have been taking certain steps in relation to [Mrs Newsome's] condition there was a wholly unacceptable and quite unreasonable delay in grasping hold of the position within a reasonable space of time. The adjustments which were eventually made as to the provision of appropriate furniture were fairly basic and preliminary steps, but once by February 1999 it was clear that [Mrs Newsome] was complaining about her workload and certainly by 16 April 1999 it had been promised that a protocol would be drawn up which would address her job description, it was a wholly unacceptable delay in drafting a protocol which when in draft it was eventually produced long after it should have been produced failed dismally to alter anything in reality. Very simply steps could have been taken to ensure that all work was routed through the line manager rather than allowing the pressure placed upon [Mrs Newsome] which it was clear from the evidence she was unable to resist. It was possible to consider within her job description what functions she could properly relinquish or receive assistance with by others and it was certainly possible for these considerations to have been brought forward so that [Mrs Newsome] was not left in the position of feeling that her employer really did not care, did not want her back and would prefer her to take early retirement. Indeed it was left to the stage that her pay ran out and she felt that there was little realistic alternative. It was therefore reasonable for the employer to have taken such steps and those steps were ones which may well have prevented the sort of pressure which was causing difficulty to this disabled lady. They were practicable steps, they were ones which were well within the financial resources of this major employer. There was in the background the suggestion that some financial assistance might also have been available. Effective steps were not taken by management soon enough. Those steps could have been taken and in failing to do so [the Council] has treated [Mrs Newsome] less favourably than it would treat somebody who was not disabled."

The remedy decision

11. We come now to the decision on the remedy hearing. The tribunal heard evidence from Mrs Newsome, Dr Lyndon, the occupational health physician, and Mrs Brown, the Council's head of exchequer division. Their extended reasons are short. The tribunal made crucial findings in paragraphs 5 and 9, from which we quote as follows:

"5. We found the following additional facts relative to the issue of remedy:

(a) [Mrs Newsome], who is now 48 …, had been a conscientious, long-serving employee of [the Council] who had gained three promotions, … and was the major breadwinner in the family …. We accepted that she wanted to work as long as she could, which would mean working to age 65, and we are satisfied that, all other things being equal, she would have remained to that age barring some supervening event.

(b) We were not satisfied from the evidence we heard from [the Council] that there would have been any supervening event, having regard to the evidence in particular of Mrs Brown as to the need for qualified accountants.

(c) We accepted this had been relatively secure employment with the largest public-sector employer in her locality.

(d) [Mrs Newsome] had become physically unwell and this had been compounded by psychological overlay as a component, much of it attributable to the way in which [the Council] had reacted to her difficulties, always reluctantly and late. When eventually producing a protocol as set out in the decision on liability, it was ineffective to address the issue in real terms.

(e) [Mrs Newsome] will have extreme difficulty in finding alternative employment, so much so that it is now most unlikely that she will work again while, had [the Council] not discriminated against her, she would have remained in employment until age 65.

…

9. The primary submission made for [Mrs Newsome] was that she would have remained until age 65 and we were satisfied from the evidence that we heard that this would have been the case. …"

12. In paragraph 13, the tribunal indicated that they had been referred to the Ogden Tables, although they were not provided with copies of them at the hearing itself: they were only provided subsequently. They concluded from them that the correct multiplier to provide for the purpose of calculating future loss was 13. The Council had (if its other arguments as to the likelihood of Mrs Newsome remaining employed by the Council until 65 were to be rejected) argued that the right multiplier was 12.9 and Mrs Newsom had argued for 13.52, and we find it difficult to conclude other than that the tribunal simply (or more or less) split the difference between the two alternatives: they do not suggest that they arrived at a multiplier of 13 by any more scientific process.
13. The Council's appeal raised two points. One was that the employment tribunal erred in law in failing to deduct from its award the incapacity benefit which had been and would be received by Mrs Newsome. This ground of appeal was in issue until the opening of the hearing before us, when Mr Hand QC conceded that it was well founded. The result of that concession is that the tribunal's award must on any footing be set aside. If it were the only basis on which the award might be challenged, then we would consider it appropriate to remit the matter to the same tribunal for a re-consideration of the calculation of the award, although it may be that the parties would have been able to agree the correct figure.
14. The other ground of appeal, in respect of which Mr Hand made no concession, was that the inference from the tribunal's reasoning is that they approached the whole basis of the assessment of Mrs Newsome's loss on a fundamentally wrong basis. The tribunal's task was to assess compensation by reference, in part, to uncertain future events. Mr Jeans submitted that that task was not one which could be performed by the purported making of primary facts (as, he submitted, the tribunal appear to have done) as to the length of employment Mrs Newsome would have enjoyed with the Council but for their unlawful discrimination. It instead required the tribunal to assess the chance that Mrs Newsome would suffer the future loss which she was claiming she would suffer, and to reflect that chance in assessing the compensation
15. The difference in approach identified by Mr Jeans is well-established in the authorities, to none of which the tribunal referred. A good starting point is Mallett v. McMonagle [1970] AC 166. That was a claim for damages for personal injury brought under the Fatal Accidents Acts. Lord Diplock said, at 176:

"The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its ordinary functions in civil actions of determining what was. In determining what did happen in the past a court decides on the balance of probabilities. Anything that is more probable than not it treats as certain. But in assessing damages which depend upon its view as to what will happen in the future or would have happened in the future if something had not happened in the past, the court must make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards.

The starting point in any estimate of the number of years that a dependency would have endured is the number of years between the date of the deceased's death and that at which he would have reached normal retiring age. That falls to be reduced to take account of the chance, not only that he might not have lived until retiring age, but also the chance that by illness or injury he might have been disabled from gainful occupation. The former risk can be calculated from available actuarial tables. The latter cannot. …."

16. That approach to the assessment of loss referable to uncertain future events has been consistently applied. In Allied Maples Group Ltd v. Simmons & Simmons (a firm) [1995] 1 WLR 1602, Stuart-Smith LJ said, at p. 1610B:

"Questions of quantification of the plaintiff's loss, however, may depend upon future uncertain events. For example, whether and to what extent he will suffer osteoarthritis, whether he will continue to earn at the same rate until retirement, whether, but for the accident, he might have been promoted. It is trite law that these questions are not decided on a balance of probability, but rather on the court's assessment, often expressed in percentage terms, of the risk eventuating or the prospect of promotion, which it should be noted depends in part at least on the hypothetical acts of a third party, namely the plaintiff's employer."

17. The same approach is equally applicable to the assessment of future loss by employment tribunals, as is shown by the decision of this appeal tribunal in Ministry of Defence v. Cannock and Others [1994] ICR 918, at 951, an approach approved by the judgment of the Court of Appeal (delivered by Mummery LJ) in Vento v. Chief Constable of West Yorkshire Police (No. 2) [2003] IRLR 103. Mummery LJ said:

"32. Compensation for future loss of earnings: the general approach

It was common ground that the correct approach to compensation for future loss of earnings was that described by Morison J in his judgment on behalf of the Employment Appeal Tribunal in Ministry of Defence v. Cannock [1994] IRLR 509 at 523. The question is: what were the chances, if Ms Vento had not been discriminated against and dismissed, of her remaining in the police force until the age of retirement at 55?

33. As Morison J pointed out, this hypothetical question requires careful thought before it is answered. It is a difficult area of the law. It is not like an issue of primary fact, as when a court has to decide which of two differing recollections of past events is the more reliable. The question requires a forecast to be made about the course of future events. It has to be answered on the basis of the best assessment that can be made on the relevant material available to the court. That includes statistical material, such as that produced to the tribunal showing the percentage of women who have in the past continued to serve in the police force until the age of retirement."

18. We have no doubt that the employment tribunal should have approached the assessment of Mrs Newsome's future loss by reference to these principles. It should, therefore, have made an assessment of the chance Mrs Newsome had of remaining in service with the Council until 65, and have compensated her by discounting what we might call her full compensation by reference to the chance so found. We do not suggest that the matter could only be dealt with by fixing on some particular percentage so as to reflect the chance; but we do consider it essential for the tribunal to have had express regard to the inevitable uncertainties as to the length of the employment Mrs Newsome would have enjoyed in future with the Council but for the disability discrimination she had suffered.
19. It appears that the tribunal were expressly referred to the Cannock decision, and were reminded that they needed to make an assessment of Mrs Newsome's chance of being able to remain in work with the Council for any significant time. However, the tribunal's extended reasons give no indication that they had the correct approach in mind. On the contrary, Mr Jeans submitted that the natural interpretation of the way the tribunal approached the matter in paragraphs 5 and 9 of their reasons was that they were not making an assessment of her chance of remaining in her employment until 65: they were instead treating the relevant question as one of primary fact. Thus they accepted her evidence that she wanted to stay on until she was 65, and proceeded on the basis that, barring what they called a supervening event, she would have done so. They found on the facts that there would have no such supervening event. They found also that the nature of her employment was "relatively secure".
20. We have great difficulty with paragraph 5 of the tribunal's reasons. First, if the correct interpretation of the tribunal's virtually unreasoned conclusions is that they were finding that, on the balance of probability, Mrs Newsome would, but for the discrimination she had suffered, be likely to have remained in her employment with the Council until 65, we consider that they approached the question on the wrong basis. Secondly, if its correct interpretation is that they were finding that, taking account of all the relevant considerations, there was for all practical purposes a 100% certainty that Mrs Newsome would, but for the discrimination, have remained in such employment until 65, we are inclined to agree with Mr Jeans that any such finding was, on its face, irrational and perverse.
21. First, we do not see how any tribunal could rationally have fixed the chance at 100%. Even if Mrs Newsome had been an absolutely fit 48 year old, no-one could have regarded her prospect of still being in the employment of the Council at 65 as being 100% certain. In fact, she was not absolutely fit. She had a degenerative back condition. She had had a lengthy absence from work for nearly a year before her retirement and she had since then been on long-term incapacity benefit. The logic of the tribunal's decision is that the Council could have made reasonable adjustments to her working environment which would have removed all the difficulties she had been facing, and so enabled her to work in comfort until her normal retiring age. But the tribunal had made no such finding. Their conclusion in paragraph 10 of their reasons on liability was that it was "reasonable for [the Council] to have taken such steps and those steps were ones which may well have prevented the sort of pressure which was causing difficulty for this disabled lady." (Our emphasis). Thus the tribunal stopped short of a finding of fact that there was anything the Council could have done which would in fact have permanently solved all Mrs Newsome's problems. Yet the logic of their award on the remedy hearing is that the Council could have achieved just that.
22. In addition, the evidence before the tribunal included material which – at least on its face - made impossible a finding that Mrs Newsome had a 100% chance of remaining in her employment until she was 65. Dr Lyndon's evidence in chief was that, with reasonable adjustments, Mrs Newsome could not have expected to function in her post for more than five years. Mr Hand submitted that, in cross-examination, Dr Lyndon contradicted himself to such an extent that his original evidence could not be relied on at all. That may be so, but such limited notes of the cross-examination as we have do not appear to us to justify any conclusion that Dr Lyndon's initial opinion could simply be jettisoned. Even so, Mr Hand invited us to infer that the tribunal must be taken to have rejected this evidence. Given the tribunal's findings as to Mrs Newsome's prospects of enjoying another 17 years of gainful employment, there is obviously some force in that. But it is not a submission we readily accept, given that the tribunal simply do not refer to Dr Lyndon's evidence, or give any indication as to what extent they were rejecting or accepting it, or why. Put another way, we (and, more importantly, the Council) cannot know from the tribunal's unusually economical reasoning why Dr Lyndon's evidence was not factored into their paragraph 5 reasoning. If the tribunal were making a finding that his evidence was worthless and should be rejected in its entirety, then they could and should have said so, and explained why.
23. Dr Lyndon also gave evidence in chief that, by reference to a particular scientific study, the median age of those retiring early because of ill-health ranged from 46 to 56, that women generally retired at a younger age than men and that the numbers retiring because of musculoskeletal conditions were from 4 to 10 times greater than for other conditions. It is unclear to us that this was the subject of any serious challenge in cross-examination, yet this too receives no mention in the tribunal's reasoning. We consider it was evidence which required to be brought into account in assessing the chance that Mrs Newsome would remain in employment with the Council for as long as she claimed she wanted to.
24. Further evidence which the tribunal also do not mention is Mrs Brown's to the effect that the average retirement age at the Council (including all fit individuals) was 55.9. It is not apparent from the notes we have seen that she was cross-examined on that. Mr Hand's submission was that the tribunal considered that evidence but did not find it compelling enough to displace Mrs Newsome's evidence as to her determination to work until 65. That submission finds no overt reflection anywhere in the tribunal's reasons: they do not deal with this aspect of Mrs Brown's evidence at all. Nor do the tribunal deal with the fact that Mrs Newsome would have accrued the maximum 40 years for pension purposes by her 60^th birthday, which might be regarded as increasing the likelihood that she would have retired before age 65 had she remained fit.
25. Mr Hand submitted that an answer to Mr Jeans's main point is to be found in the tribunal's reference to the Ogden Tables in paragraph 13. His submission was that the tribunal's choice of a multiplier of 13 from the tables with which they were provided reflected the possibility that she might cease work earlier than 65 for reasons other than mortality and so itself reflected the making by the tribunal of the assessment of the relevant chance. We cannot regard that submission as providing a sufficient answer to the main thrust of Mr Jeans's submission. First, although reference was made to the Ogden Tables at the hearing, the tables were not actually provided to the tribunal until afterwards, and it is far from clear to us what argument was addressed to the tribunal on them. Secondly, we understand that the edition so provided was the third edition, in which the tables do not take account of risks other than mortality, although the explanatory notes do explain how the multipliers can be reduced so as to take account of risks other than mortality, for example cessation of work due to ill-health or loss of employment. It does not, however, appear to us from their reasons that the tribunal made any such adjustment in arriving at their chosen multiplier. If they did, they provide no explanation of it.
26. Mr Hand conceded, inevitably, that the tribunal's reasons were brief. By itself, brevity is not a fault, and may be a virtue, and it is clear that the tribunal's extended reasons need not amount to "an elaborate formalistic product of refined legal draftsmanship" (Meek v. City of Birmingham District Council [1987] IRLR 250, at 251, per Bingham LJ). But they must at least contain enough to enable the parties to be satisfied that the tribunal have asked themselves the right questions and, having done so, have provided a sufficient explanation of their findings of fact and conclusions of law to enable them to know why they have won or lost. In the instant case, we regret to have to say that we regard the tribunal's reasons as having failed each of those tests by a significant margin. We have no confidence that they asked themselves the right question – namely, what, but for the discrimination to which she had been subjected, were Mrs Newsome's chances of remaining in employment with the Council until 65 – and, even if they did, they provide no rational explanation of the basis on which, in the light of the evidence before them and their own conclusions on the liability hearing, they appear to have concluded that the chances amounted to a practical certainty. Mr Hand argued Mrs Newsome's case very skilfully. But the quality of the material with which he was required to work meant that, ultimately, he was in effect driven to "[combing] through a patently deficient decision for signs of the missing elements, and [trying] to amplify these by argument into an adequate set of reasons." As Sedley LJ observed in Anya v. University of Oxford and another [2001] IRLR 377, at 383 (paragraph 26), that is unacceptable.
27. We conclude that this appeal must be allowed and the tribunal's decision on the remedy hearing set aside. Were we so to conclude, there was some debate before us as to whether we should remit it for a re-hearing to the same or a differently constituted tribunal. Predictably, Mr Hand favoured the former alternative, on the grounds that the tribunal have already heard all the evidence, and that there would be a saving of costs since all that would be required would be the making of renewed submissions. Equally predictably, Mr Jeans favoured the latter alternative.
28. We have concluded that the remedy hearing should be re-heard by a differently constituted tribunal. We are not to be taken as thereby suggesting that we consider that the same tribunal would approach the matter other than impartially and fairly. But we consider that this is a case in which the appearance of justice will be better served if the re-hearing is by a different tribunal. In addition, the oral evidence which the tribunal heard is now extremely stale, and we consider that it would be unsatisfactory after this long delay for that tribunal to be invited to provide a fresh set of reasons by reference to that evidence. We consider that the fairest way forward is for the whole matter to be re-heard. We will therefore allow the appeal, set aside the tribunal's award and remit the remedy hearing for a re-hearing by a differently constituted tribunal.