United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0090/10/SM

 

 

 

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

 

 

At the Tribunal

On 4 June 2010

Judgment handed down on 5 May 2011

 

 

 

Before

HIS HONOUR JUDGE HAND QC

MR T HAYWOOD

 

MRS L TINSLEY

 

 

 

 

MS J E JONES APPELLANT

 

 

 

 

 

 

THE CITY AND COUNTY OF SWANSEA RESPONDENT

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR PATRICK GREEN (of Counsel) Direct Public Access
For the Respondent	MR JONATHAN COHEN (of Counsel) Instructed by: City & County of Swansea Legal Services Civic Centre Oystermouth Road Swansea SA1 3SN

SUMMARY

 

UNFAIR DISMISSAL – Compensation

 

The decisions to apportion compensation, not to award any future loss after April 2008 and to apply an “uplift” of 25% in respect of breach of statutory procedures were neither irrational, nor without evidential foundation nor based on any misdirection and the appeal would be dismissed.

 

 

PRACTICE AND PROCEDURE - Appellate jurisdiction/reasons/Burns-Barke

 

Although this was a “narrative” judgment sufficient substance could be extracted from the decision to demonstrate compliance with rule 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 SI No. 1861; Balfour Beatty Power Networks Ltd v Wilcox [2006] EWCA Civ 1240, [2007] IRLR 63 and Greenwood v NWF Retail Ltd UKEAT/0409/09 applied.

 

Discretion would not be exercised in favour of allowing a new point to be raised by the cross appeal.

 

HIS HONOUR JUDGE HAND QC

Introduction

1.               This is an appeal by Ms J E Jones (“the Appellant”) and a cross appeal by her former employer, the City and County of Swansea, (“the Respondent”) from the judgment of an Employment Tribunal, comprising an Employment Judge and two lay members, sitting at Cardiff on 2 February and 5 May 2009 on a remedies hearing[1], whereby compensation of £33,518.86 was ordered.  The reserved judgment and reasons were sent to the parties on 14 August 2009.

 

The Issues

2.               The Employment Tribunal recorded at paragraph 3 of the Reasons part of the judgment (see page 40 of the bundle) that 6 issues had been identified by the Respondent as follows:

 

i. what was the actual loss of the Appellant?

ii. was the Appellant unfit to work up to the date of the remedies hearing?

iii.             why was the Appellant unfit to work immediately after the dismissal (in October 2005)?

iv.             was her inability to work caused by her dismissal?

v.               were there other factors causing her inability to work?

vi.             was the dismissal still the cause of her inability to work in the period leading up to the remedies hearing?

 

3.               These clearly addressed the period between the date of dismissal and the remedies hearing.  The Employment Tribunal also reminded itself at the outset that any award made in the light of the findings made to answer those questions would have to be such as was “just and equitable” and that the same sort of principles would have to be applied to questions of loss in the future.  In the event, future loss never arose.

 

4.               In summary the Employment Tribunal’s conclusion was that the dismissal was no longer an operative cause of unemployment after April 2008 and before then dismissal had only been a partial cause of the Appellant’s loss; this was assessed at a 50% contribution and the compensation was therefore reduced by that amount.  It was, however, uplifted, pursuant to section 31 of the Employment Act 2002 (“EA”), by 25% because of a failure to comply with “statutory dismissal” procedures.  The Appellant complains as to each of those and so, on the appeal, the issues are:

 

i. was it an error of law to conclude that dismissal was no longer a significant cause of unemployment by April 2008?

ii. was it an error of law to conclude that there were other significant causes of unemployment in the period before April 2008 and, consequently, only 50% of compensation should be awarded in respect of that period?

iii.             was it an error of law not to uplift by more than 25%?

 

5.               The issue raised by the cross appeal is did the Employment Tribunal err in finding that the Respondent’s dismissal of the Appellant contributed to any material extent to her unemployment?  This really comprises two components:

 

i. did the Respondent’s conduct cause or contribute to the ill health of the Appellant at all?

ii. if it did, was it the dismissal, which caused the ill health, or was that caused by earlier conduct not justiciable in the Employment Tribunal but in respect of which the Appellant would only have a remedy in the civil courts, thus rendering the award of any compensation erroneous?

 

The Judgment

6.               The Employment Tribunal’s judgment on remedy is at pages 39 to 50 of the bundle.  There was considerable medical evidence placed before it in the form of medical records and medical opinion from two consultant psychiatrists.  Those doctors agreed on some matters and at paragraph 6 of the judgment at page 40 of the bundle the following appears:

 

“… the claimant was highly vulnerable to the recurrence of a mood disorder such as major depressive disorder as a result of her family history and her five previous episodes, the most recent of which had been in 2003.  … [the consultant psychiatrists] … are agreed that on a balance of probability the claimant would have experienced a recurrent episode of major depressive disorder in or about Spring  2008 in any event.”

 

7.               The Employment Tribunal found at paragraph 9 at page 41 of the bundle that changes in the medication being prescribed to the Appellant in the first half of 2004 coincided with work pressures and problems and that:

 

“The medical evidence supports the fact that the claimant was suffering depression at this time.”

 

8.               One of the consultant psychiatrists, Dr Evans, took the view that, although the Appellant had some contraceptive treatment, which caused some medical problems in the summer of 2004 and thereafter, until the device was removed in May 2005, the impact on the Appellant was minimal and that her health problems were caused by her work.  The Employment Tribunal accepted this evidence (see paragraphs 10 to 13 at pages 41 and 42 of the bundle), preferring it to the evidence of Dr Jenkins, the other consultant psychiatrist.

 

9.               The Appellant became pregnant in August 2005 and stopped taking anti-depressants at that time.  She resigned on 20 September 2005.  Her son was born in April 2006 but by May she was taking anti-depressants again and Dr Jenkins took the view that in a person of the Appellant’s psychiatric make up the birth would have precipitated further depression.  Dr Evans took the contrary view and on this issue the Employment Tribunal accepted his evidence in preference to that of Dr Jenkins (see paragraphs 13 and 14 at pages 42 and 43 of the bundle).

 

10.            The Employment Tribunal also considered the evidence of a Mrs Pearce, a primary care health liaison nurse.  In her view events at work, the resignation and subsequent Tribunal proceedings were the main cause of the Appellant’s ill health; there had been a bereavement reaction to her resignation (see paragraph 15 at page 43 of the bundle).  When Mrs Pearce wrote a letter about the Appellant’s condition in September 2006 the Employment Tribunal referred to it in these terms:

 

“… since she resigned the Claimant had experienced systems (sic)[2] of bereavement and had lost her sense of identity and financial independence.  Mrs Pearce considered that the symptoms of the claimant now seemed to vary depending on the pressures of the impending tribunal and associated stressors.”

 

11.            Paragraph 17 of the judgment at page 44 of the bundle contains this crucial finding:

 

“The judgment on liability was sent to the parties on 3 April 2008.  This accords with the time scale that both the psychiatrists consider the claimant would have likely (sic) to have experienced a recurrent episode of major depressive disorder, that is, in or before Spring 2008 in any event.  When the claimant had received the judgment, which was in her favour and would have been interpreted by the claimant as vindicating her position, we do not consider that any depressive continuation of the claimant’s position can be said to be caused by the way the claimant was treated whilst at work.  On the balance of probability, we conclude that the effects of her dismissal would have ceased to be any substantial or important factor at all in any ongoing depression that the claimant suffers from April 2008.  The stress of the Tribunal Hearing would have been largely, if not wholly, lifted at this point.”

 

12.            At paragraph 24 of the judgment the Employment Tribunal, having directed itself in terms of section 123(1) of the Employment Rights Act 1996 (“the Act”),  goes on to say:

“Both psychiatrists agree that the unfair dismissal was the material causative factor in the claimant being unfit for work.  We accept the analysis of Dr Jenkins that other non-related factors played an equal part.  In the circumstances a just and equitable award should be less than the full amount of the wage loss to reflect a deduction of 50% for non-dismissal related factors.  The history of depression prior to the dismissal is well established as set out above.  Whilst we do not accept Dr Jenkins attribution of depressive effects to the Minera[3] coil, other non-dismissal factors are present.  A figure of 90% to the dismissal is too high.  We prefer the lower figure of 50% which in our opinion is the correct figure to attribute to the effect of the dismissal as at September 2005.”

 

13.            As to the applicable law, the Employment Tribunal favoured the approach exemplified by Dignity Funerals v Bruce [2004] SC 230 to that in  Dickins v O2 plc [2009] IRLR 58, which it regarded as involving:

 

“ … other legal principles applicable to personal injury litigation which are not the same principles upon which the assessment of a compensatory award under section 123 of the Employment Rights Act proceeds.”

(see paragraph 25 at page 47 of the bundle)

 

This is somewhat cryptic but, taken in the context of the judgment as a whole, it can be de-coded as meaning that where compensation under section 123 of the Employment Rights Act 1996 is under consideration the correct approach is not to ask whether the dismissal had made a major contribution to the inability to work post dismissal (with possible consequence that if it did there should be no apportionment as per the obiter dictum of Smith LJ in Dickins) but to ask (as per paragraphs 11, 12 and 13 of the judgment of the Inner House of the Court of Session, given by Lord Gill, the Lord Justice Clerk, in Dignity Funerals) whether the loss was caused to a material extent by the dismissal (very similar to, but not always the same as, the approach in tort identified in Dickins), and, if competing or concurrent causes were indentified to make an apportionment.

 

14.            Having arrived at the above conclusions on causation of loss at the date of dismissal, the Employment Tribunal turned to the question as to how long that causation continued as a substantial cause of the incapacity.  This involved a further difference of opinion as between the two psychiatrists.  At paragraph 26 at page 47 of the bundle, the competing opinions (Dr Jenkins that it lasted for a year, Dr Evans that it was continuous) were considered against the contemporary medical records and the Employment Tribunal reached these conclusions at paragraphs 27 to 29 of the judgment at page 48 of the bundle:

 

“27. The evidence indicates that beyond the 12 months speculated by Dr Jenkins the claimant continued to experience depression which required treatment and that the dismissal was the material causative factor in the claimant being unfit for work.  It is pure guesswork on the part of Dr Jenkins to limit the period for 12 months which is not supported by any firm evidence.  On the other hand the analysis of Dr Evans that there would not have been a continuation up to April 2008 when it is likely there would have been a further episode of depressive disorder based on the medical history of the claimant accords with the claimant’s past history and likelihood of recurrence.  It is artificial to give a cut-off point of 12 months as Dr Jenkins speculates.  We prefer the evidence of Dr Evans on this point.

28. However, we consider that other factors post dismissal are likely to have led to the continuation of the percentage of 50% as put forward by Dr Jenkins, particularly the post natal depression, and concerns about coming to a tribunal.

29. Therefore the period of loss that we think is just and equitable to award compensation is from September 2005 until April 2008 but there should be a reduction of 50% to take account of other factors than the dismissal itself causing inability to work”

 

15.            Finally, on the question of “uplift” in respect of the failure to comply with section 31 of the EA, the Employment Tribunal viewed the case as one where there should be some “uplift”.  The basis for the “uplift” was there had been an investigation, albeit a flawed one.  In those circumstances an “uplift” of 25% was appropriate (see paragraph 30 at pages 48 and 49 of the bundle.

 

The Submissions

The Appeal

16.            Mr Green of counsel, who appeared on behalf of the Appellant at this Tribunal but did not represent her below, submitted that the Employment Tribunal’s judgment was confused, illogical and inadequately reasoned.  There was a misdirection as to section 123 of the Act.  The Employment Tribunal had concentrated on the Appellant’s state of health and lost sight of the real question, which was whether consequent on the dismissal the Appellant had sustained loss, which was attributable to the action taken by the employer.  Moreover, consideration of the issue of what loss had been caused by the dismissal should have included use of a “but for” approach and had been confined unnecessarily to common law causation concepts.

 

17.            Failure to comply with rule 30(6) of Schedule 1 of the Employment Tribunals (Constitution and Rule of Procedure) Regulations 2004 pervaded the whole judgment but it was acute in relation to the failure to make any findings as to the evidence of Mrs Pearce, which was critical on causation of loss and as to the amount of the uplift.

 

18.            Having rejected the expert opinion of Dr Jenkins that the partial cause of a depressive illness, which had started in late 2004, was her reaction to the contraceptive Mirena Coil device, it was illogical to then conclude that there were “other non-dismissal factors” responsible for the unfitness to work, which persisted after her constructive dismissal.  These were identified only as “post-natal depression and concerns about coming to a tribunal” (see paragraph 28 quoted above) but there was no evidence that she had suffered post natal depression.  Moreover, the assumption that “post natal depression”, if it had existed and caused her to be off work, would have caused her loss of earnings had she not been constructively dismissed was not based on any evidence; the Tribunal had conflated illness with loss of earnings and that could not be assumed, particularly in the case of a local authority employer.  In any event “concerns about coming to a tribunal” cannot be characterised as unrelated to constructive dismissal.

 

19.            The “cut off” of April 2008 must have been arrived at on the assumption that the Appellant would never be fit for work again but the evidence was that she had hitherto always returned to work after previous bouts of depressive illness and the implicit conclusion that this time it would have been different was based on speculation not evidence.

 

20.            Given that the Respondent had simply refused to engage with the Appellant’s  raising of a grievance, the exercise of the discretion as to uplift by the Tribunal was erroneous because that factor must have led to an uplift greater than 25% and the judgment of the Employment Tribunal cannot have been in accordance with the principles enunciated in Lawless v Print Plus UKEAT/0333/09, which required the discretion to be exercised rationally and McKindless Group v McLaughlin [2008] UKEAT/0010/08, which requires reason for the uplift to be articulated.

 

21.            Mr Cohen of counsel submitted, on behalf of the Respondent, that there was no significant difference between inability to work and loss of earnings and there was no misdirection in relation to section 123 of the Act; this part of the appeal was asking for a review of factual findings dressed up as a misdirection point.  The Employment Tribunal had considered the competing submissions on the question of causation and apportionment (see paragraphs 19 to 22 of the judgment at pages 45 to 46 of the bundle) and had correctly directed themselves as to the applicable law at paragraphs 24 and 25 before correctly applying that to the conclusions reached in paragraphs 26 to 29 (see pages 46 to48 of the bundle).

 

22.            There was an evidential basis for the findings of the Employment Tribunal and that disposed of the grounds related to the findings that the Appellant should only recover 50% of her loss between 2005 and 2008 and no loss thereafter because the real complaint in this context was perversity and, if there was evidence to support the Employment Tribunal’s conclusion, then a perversity argument was unsustainable.  The problem facing the Appellant was that the evidence of Dr Jenkins had not been entirely rejected.  His view that there had been a worsening of the Appellant’s symptoms due to an unplanned pregnancy, which resulted in the Appellant abandoning her anti-depressant medication, was separate from and different to his evidence about the Mirena coil and its effect and whilst his opinion had not been accepted on that point his general evidence about ill health had not been rejected and it underpinned the Employment Tribunal’s 50% finding on causation of loss between 2005 and 2008.  These were both questions of fact with evidential support and there was no misdirection of law.

 

23.            Furthermore it was clear from paragraph 28 of the judgment that the emphasis was on the “post natal depression”; the Employment Tribunal had used the word “particularly” to give that emphasis and there was an ample evidential basis for the conclusion that there was “post natal depression” In any event it was perfectly orthodox for the Employment Tribunal to distinguish litigation anxiety caused by the Tribunal process from loss caused by the dismissal.

 

24.            The same approach should be applied to the finding that there was no future loss and to the amount of uplift.  These were questions for the Employment Tribunal to decide against the factual matrix of the case.  There was evidential support for both conclusions and whatever we might think on either issue it was not our function to say whether the uplift should have been more or whether future loss might have continued.  There was nothing wrong in law with an uplift of 25%; a reasonable Tribunal properly directing itself on the evidence could have come to that conclusion.  Likewise, whilst others might take the view that future loss would have continued, there was clear and agreed evidence that a major depressive episode would have occurred by the time of the hearing and the Employment Tribunal’s unwillingness to look beyond that could not be said to be beyond the scope of a reasonable Tribunal properly directing itself on the evidence.

 

25.            Finally, he submitted that the decision was well reasoned.  The parties knew why they had won or lost and the evidence of Mrs Pearce was unimportant and the failure to deal with her evidence could not mean that the judgment failed to comply with rule 30(6).

 

The Cross Appeal

26.            It is convenient to adopt this description although it seems to us that the point under discussion is partly an answer to the appeal, partly a Respondent’s Notice, seeking to support the judgment on grounds other than those articulated in it, and partly cross appeal.  However the point is characterised it proceeds from the factual findings at paragraphs 7 to 17 of the judgment, although in order to obtain the full picture paragraphs 3 to 91 of the judgment on liability at pages 2 to 24 of the bundle also need to be read.  What follows is the barest summary of the factual findings collected from both sources. 

 

27.            In early 2004 the Appellant was being prescribed anti-depressants by her General Practitioner.  In May 2004 there were problems at work and these were dealt with through various internal procedures throughout 2004 and 2005.  In August she was fitted with the Mirena Coil.  She was absent from work for 2 weeks in January 2005 and on 11 May 2005 she went off work through health and never returned.  By September 2005 she had been diagnosed as suffering acute anxiety and depression and she resigned by letter dated 20 September 2005.

 

28.            The Employment Tribunal rejected the evidence of Dr Jenkins on the reasons for the Appellant’s absence from work before and at the time of her resignation and preferred that of Dr Evans (see paragraphs 11, 12 and 13 of the remedy judgment at pages 41 to 43 of the bundle).  In short they found that she was off work during this period mainly due to her treatment by the Respondent.  She was pregnant at the time of her dismissal and stopped taking anti-depressants during her pregnancy.

 

29.            After her son was born in April 2006 she resumed anti-depressant medication and the dose was increased in September.  The General Practitioner noted the risk of post natal depression and that there had been such a depression after the earlier birth of her daughter (see paragraph 14 at page 43) and in the evidence given at the liability hearing the Appellant had described an absence of either positive or negative emotion following the birth.  The Employment Tribunal thought these significant enough to mention at paragraph 14 of the judgment where the evidence of Dr Jenkins that she had probably developed post natal depression was accepted.

 

30.            Paragraphs 15 and 16 of the remedy judgment deal with the evidence of Mrs Pearce.  She was a primary care liaison nurse who saw the Appellant between August 2005 and November 2008.  She was clear in her mind that the depressive illness from which the Appellant suffered in this period arose from “her treatment at work, resignation and subsequent tribunal process” (see paragraph 15).  In November 2006 she had written that the since her resignation the Appellant had “experienced symptoms of bereavement and had lost her sense of identity and financial independence” (see paragraph 16).

 

31.            This, submitted Mr Cohen, who, like Mr Green, did not appear below, provided all the material needed for the Employment Tribunal to reach the conclusion that all the loss of earnings suffered by the Appellant stemmed from illness arising from her treatment at work.  Therefore the instant case was, like the Court of Appeal authority of GAB Robins (UK) Ltd v Triggs [2008] IRLR 317, one where there could be no post dismissal loss of earnings because all such losses were attributable to breaches of contract arising pre-dismissal.  Although these comprise the repudiatory breach(es) giving rise to the “constructive” dismissal, the post dismissal loss of earnings was not attributable to the dismissal itself but to those antecedent breaches.  That must be so where, as here, the employee had been made ill by the breach(es) and was unfit for work at the date of the resignation.

 

32.            It was possible that the Employment Tribunal had approached the assessment of compensation with this principle in mind, even though they do not appear to have had GAB Robins cited to them and certainly did not mention the case in the judgment.  Mr Cohen submitted that the reference to “other non-dismissal factors” being present at paragraph 24 of the judgment (see above for a fuller quotation at paragraph 12 of this judgment) is explicable on the basis of it being a reference to the GAB Robins principle (i.e. another answer to the Appeal).  Alternatively, if the passage could not be so construed, then the 50% apportionment could also be supported on the basis that a significant part of the cause of unfitness for work had been the pre-dismissal treatment of the Appellant judgment (i.e. in effect, if not in form, a Respondent’s Notice).  A more radical alternative was that the whole of the judgment was flawed because the Employment Tribunal had not adopted the GAB Robins principle; had this been the approach then it should have resulted in their being no future loss (i.e. the cross appeal).  Even if this was completely new point not taken below that should not preclude consideration of it on this appeal because it was a point of law as to which no further evidence was required.

 

33.            Mr Green’s answer was threefold.  Firstly this was a completely new point not raised before the Employment Tribunal.  Secondly, the GAB Robins principle did not apply on the facts as found by the Employment Tribunal.  Thirdly GAB Robins was wrongly decided[4] and Mr Green wished to reserve his position for further argument.

 

Discussion and Conclusion

(i) The inadequacy of reasons point

34.            In Greenwood v NWF Retail Ltd UKEAT/0409/09 this Tribunal decided that a judgment of an Employment Tribunal must comply with 30(6) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 SI No. 1861 and failure to do so would amount to an error of law.  If, following the Court of Appeal’s decision in Balfour Beatty Power Networks Ltd v Wilcox [2006] EWCA Civ 1240; [2007] IRLR 63, sufficient substance could be extracted from the decision so as to demonstrate compliance with rule 30(6), however, there would be no error simply because the format of the Rule was not visible on the surface of the Employment Tribunal’s decision.

 

35.            The form of the instant decision is what is sometimes called “a narrative decision”.  The story is told, facts are set out, submissions are recorded and conclusions reached.  On its face, there is no setting out of the issues and not all the factual disputes are resolved.  In particular Mr Green submitted that there is no conclusion as to Mrs Pearce’s evidence and no reasoning at all as to how the “uplift” of 25% has been reached.

 

36.            Like Buxton LJ in Balfour Beatty, whilst not wishing to fashion a “straitjacket” for Employment Tribunals, we think it would be easier (and certainly easier for this Tribunal in considering any appeal) to acknowledge the template provided by rule 30(6) at some point in a judgment rather than leave it to later scrutiny to assemble the components from the materials provided by a purely “narrative” judgment. But, in order to reach a conclusion on this point, this is what we must now do.

 

37.            The Appellant had already been too ill to work for 3 to 4 months at the time she resigned.  Why was that?  Dr Jenkins suggested it was a reaction to an unacceptable contraceptive device.  The Employment Tribunal did not accept that evidence, preferring instead the evidence of Dr Evans and of the Appellant that her absence was caused by the Respondent’s treatment (see paragraphs 11 and 12).  That seems to us to be substantial compliance with rule 30(6) so far as that issue is concerned.

 

38.            She remained off work from the date of her resignation until the date of the hearing.  Why was that?  The Employment Tribunal concluded that Dr Jenkins was right to say that there was a period of post natal depression (see paragraph 15).  They also note the evidence of Mrs Pearce at paragraphs 15 and 16; there had been a reaction to the dismissal and to the stress of the unfair dismissal proceedings.  Both psychiatrists are recorded at paragraph 24 as agreeing that “unfair dismissal was the material causative factor in the claimant being unfit for work” but whilst not accepting Dr Jenkins opinion as to the effect of the contraceptive Mirena coil “other non dismissal factors were present” (see paragraph 24).  They had already recorded at paragraph 22 the Respondent’s submission:

 

“In this case the claimant’s depressive state had manifested itself before her dismissal.  It appears there may have been other unrelated causes of her fitness for work thereafter such as postnatal depression.  It is also possible the dismissal had been a cause of the unfitness for work for only a part of that part.  In such circumstances the just and equitable award should be of less than the full amount of the wage loss.  The tribunal therefore has to decide whether the depression in the period after the dismissal was caused to any material extent by the dismissal itself; whether, if so, it had continued to be so for all or part of the period up to the Hearing; and if it was still so caused by the date of the Hearing, how long it would continue to be so caused.”

 

39.            There is specific mention of the “history of depression prior to the dismissal” at paragraph 24 and at paragraph 26 reference is made to the medical notes compiled by Mrs Pearce.  These appear to be influential in the Employment Tribunal concluding that the effects of the dismissal had not dissipated within 12 months as Dr Jenkins had opined (see paragraph 27).  At paragraph 28 there is a reiteration of the earlier conclusion, put in terms of “other factors post dismissal are likely to have led to the continuation of the percentage of 50%, particularly the post-natal depression and concerns about coming to the tribunal”.

 

40.            It seems to us that the Employment Tribunal decided the answer to the question as to why Appellant had been off work at and after the date of her dismissal was that there had been a number of factors at play.  One was that she had already become ill as a result of the way she was treated at work.  Another was that she reacted to finding herself out of work in the way described by Mrs Pearce.  Contrary to Mr Green’s submission, it seems to us that the Employment Tribunal accepted, took account of and relied upon the evidence of Mrs Pearce.  Other factors were involved; there was post natal depression and there was anxiety about the litigation.  The Employment Tribunal looked at the cause of the inability to work as a continuum during which different factors had greater or lesser importance.  They concluded that an apportionment of 50% was a just way of balancing those competing factors.  It seems to us that when assembled in that way the judgment does satisfy the requirements of rule 30(6).  It identifies the issues, makes findings about the evidence and reaches conclusions based on those findings.

 

41.            Finally the question of “uplift” is addressed at paragraph 30.  It is true that the Employment Tribunal does not say much by way of explanation as to how it arrives at 25% but it seems to us that enough is said to satisfy rule 30(6).

 

42.            The Employment Tribunal says this at paragraph 30:

 

“We do not consider that it should be a 50% maximum uplift as urged by the claimant’s representative.  There had been an investigation of a number of matters undertaken by the respondents although that was flawed for the reasons that we have already given in the judgment on liability.”

 

In our judgment, this is a brief but sufficient indication as to how the decision was reached.  The reasoning was that there had been a degree of investigation, albeit flawed investigation.  That is how the figure of 25% was arrived at.

 

43.            Accordingly we do not accept Mr Green’s submission that this was an inadequately reasoned decision and the appeal fails on that point.

 

(ii) The misdirection point

44.            Mr Green suggested that a “but for” approach should be adopted in relation to the causation required by section123 of the Act.  So, for example, one might ask – “but for” the dismissal would the Appellant’s pregnancy and post natal depression, if any, have resulted in her suffering any financial loss?  We entertain serious doubts as to whether that would produce any different results to simply asking the statutory question - whether consequent on the dismissal the Appellant had sustained loss, which was attributable to the action taken by the employer?

 

45.            Be that as it may, we cannot see how the Employment Tribunal fell into any error by adopting the approach of the Inner House of the Court of Session in Dignity Funerals.  The principle of apportionment where there are competing causes some of which found liability and some of which do not is a sound and basic principle.  It was not a misdirection of the Employment Tribunal to adopt that approach and the self direction at paragraphs 24 and 25 was not erroneous.  The real question is whether the evidence justified apportionment.

 

(iii) The unsustainable reasons point

46.            In our judgment this is not one point but a collection of similar but separate points.  Whether or not it justifies Mr Cohen’s description of them as “perversity” points, they really amount to asking whether there was any evidence to support the findings made and the conclusions drawn. Before examining the merits of the arguments raised, we want to make this observation.  Simply because much of the evidence consisted of expert medical opinion, which is (or should be) susceptible to logical analysis does not place this Tribunal in any better position in relation to that evidence than it occupies in relation to any other evidence when scrutinising any judgment of an Employment Tribunal.  Opinion evidence must be set in the factual matrix of the case and when it is accepted or rejected or one opinion is preferred in whole or in part to another opinion, it is still a matter of fact for the tribunal of first instance.  Because we might take a different view does not mean that there has been an error of law or that this Tribunal should interfere.

 

47.            With that in mind we turn to the question of post natal depression.  Mr Green submitted that there was no evidence that the Appellant ever developed post natal depression after the birth of her son and, even if she had, there was no logic in suggesting that should diminish her compensation.  So far as the former is concerned, we acknowledge that the evidence is not substantial.  In particular we do not understand there to have been any clear contemporary diagnosis.  But the General Practitioner had raised it as a possibility, referring to the fact that the Appellant had experienced it in relation to a previous child, she had been put on anti depressant medication and Dr Jenkins was of the opinion that she had suffered a bout of it.  Therefore it seems to us that there was evidence entitling the Employment Tribunal to reach that conclusion.

 

48.            Nor do we accept that the Employment Tribunal could not accept some parts of Dr Jenkins evidence and not others.  Mr Green’s submission really amounted to saying that the Employment Tribunal could only have either accepted one expert or the other.  But we take the view that an Employment Tribunal, like any other tribunal of fact, is entitled to accept the whole or only part or no part of any expert opinion, always providing that there is a rational evidential basis for doing so.

 

49.            As to the loss sustained, Mr Green submits that the Employment Tribunal have overlooked the fact that had the Appellant still been employed by the Respondent she would have received sick pay or some form of maternity pay or both.  But none of that seems to have been explored and although we cannot be confident as to what the level of financial protection might have been, it is certainly possible that there would have been some diminution in earnings during this period.  The Employment Tribunal was entitled to take account of that as part of the process of arriving at a 50% apportionment.

 

50.            We agree with Mr Green that it seems illogical to consider the stress of ongoing proceedings as not causally linked to the dismissal but it is not clear to us exactly what weight was given to this as a factor.  Nor do we think that the Employment Tribunal can be justly criticised for not spelling it out.  Indeed, the very serious obstacle to Mr Green’s argument is that the Employment Tribunal painted with a broad brush on the question of apportionment.  In our view in many cases, and this is one of them, there will be little alternative to taking a broad approach and Employment Tribunals ought not to be criticised for doing so.

 

51.            Mr Green’s criticism might have been more formidable if the only competing causes were the dismissal, post natal depression and litigation anxiety.  But his argument ignores the fact that the Employment Tribunal accepted that the depression pre-dated the dismissal.  In our judgment the Employment Tribunal were well aware of the need to differentiate between depression brought on by treatment at work, depression brought on by or deepened by dismissal, post natal depression and depression arising from a vulnerable and pre-disposed personality.  As we explain below, however, that is not the same as adopting a GAB Robins approach to remedy.

 

52.            No doubt ascribing any particular percentage value to any aspect of this fluctuating collection of conditions was difficult and, doing its best, the Employment Tribunal alighted on a 50% apportionment.  It seems to us that such an assessment was neither unsupported by evidence nor in any way perverse and was well within the proper competency of the Employment Tribunal.  Looking at it another way, it seems to us that to accept that an apportionment of 50% is wrong  would be no more than stepping into the position of the Employment Tribunal as a fact finding body.

 

53.            Precisely the same considerations apply to the other point made by Mr Green.  The medical evidence certainly justified the conclusion that by the time of the hearing the Appellant may have had another major depressive episode.  Whether or not she might have remained employed after that was a question for the Employment Tribunal and no doubt a different decision might have been possible.  But the length of future loss is quintessentially a matter for the fact finding tribunal of first instance and that this Employment Tribunal felt that 3 years was a long enough period for future loss cannot give rise to any error of law.

 

54.            Our approach to the criticisms of the 25% uplift is the same.  The Employment Tribunal considered the conduct of the Respondent over 15 days of liability hearing in 2007 and were in an unrivalled position to form a view about the extent of the procedural failure on the part of the Respondent.

 

55.            No doubt the reason for coming to the conclusion that the uplift should be 25% could have been more expansively expressed but by saying:

 

“There had been an investigation of a number of matters undertaken by the respondents although that was flawed for the reasons that we have already given in the judgment on liability.”

 

It seems to us that the Employment Tribunal’s reasoning is tolerably clear; procedures had been followed but not properly.  Contrary to Mr Green’s argument, it seems to us that this is not a basis for saying the discretion was not exercised rationally.  How to judge that was a matter for the Employment Tribunal, they evaluated it as justifying an uplift of 25% and we would be usurping their function were we to interfere.

 

(iv) The cross appeal

56.            This, too, must be dismissed.  We accept Mr Green’s submission that this is an entirely new point.  Although we have accepted (see paragraph 51 above) that the Employment Tribunal did have the Appellant’s pre-dismissal illness and the possibility of its continuation as a partial cause of her post dismissal inability to work in mind we reject Mr Cohen’s argument that this demonstrates the Employment Tribunal were analysing the question of remedy in terms of the judgment of the Court of Appeal in  GAB Robins.

 

57.            The GAB Robins case was not cited to the Employment Tribunal.  Nor was the evidence addressed to the issue as to whether the post dismissal absence was simply a continuation of the illness cause by the pre-dismissal treatment.  The questions addressed to the two psychiatrists did not begin to engage with such a concept.  On the contrary, the questions addressed to the two medical experts, which are to be found, together with their joint answers, at page 133 of the bundle, do not raise what might be described as GAB Robins issues at all.

 

58.            So it seems to us that the point would require a remission to the Employment Tribunal for the hearing of further evidence and, of necessity, that would have to be further expert evidence.  This Tribunal has a discretion as to whether to allow a new point to be argued when it was not raised below but it is a discretion to be exercised sparingly and within the narrow confines of exceptional circumstances and compelling reasons; in particular it is a powerful consideration that more evidence would be necessary (see the following decisions in the Court of Appeal: Jones v Governing Body of Burdett Coutts School [1998] IRLR 521; Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719; Hendricks v Metropolitan Police Commissioner [2002] EWCA Civ 1686, [2003] IRLR 96; Leicestershire County Council v UNISON [2006] EWCA Civ 825, [2006] IRLR 810; all of which are based on the judgment Arnold J in this Tribunal in Kumchyk v Derby County Council [1978] ICR 1116; similarly in relation to respondents see the judgment of the Court of Appeal in McLeod and others v Hellyer Brothers Ltd; Wilson and others v Boston Deep Sea Fisheries Ltd[1987] IRLR 232).

 

59.            It is now more than 5 years since the Appellant resigned and 3 years since she succeeded on liability.  In our judgment there are no exceptional circumstances and no compelling reasons, which allow the new point to be entertained.  In particular, the further delay that would entail and particularly bearing in mind that medical experts would have to be asked further questions and have to give further evidence when weighed against the fact that there is no certainty the outcome would be any different means that we should exercise our discretion against considering the new point.

 

60.            Accordingly both the appeal and the cross appeal will be dismissed.