United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS HOLLY STOUT (of Counsel) Instructed by: Messrs Samuel Phillips & Co Solicitors Gibb Chambers 52 Westgate Road Newcastle upon Tyne NE1 5XU
For the Respondent	MR ALFRED WEISS (of Counsel) (Bar Pro Bono Scheme)


 


SUMMARY

DISABILITY DISCRIMINATION – Reasonable adjustments

The Appellant was employed as a radiographer. Following an accident at work she made a phased return to work until her condition worsened and she recommenced long term sick leave and was eventually dismissed. The Employment Tribunal found a failure to implement various reasonable adjustments and awarded (a) £30,000 plus interest for injury to feelings and (b) £10,000 aggravated damages. The EAT found none of the provisions, criteria or practices (PCP's) identified by the Tribunal were capable on analysis of being PCP's. Alternatively the £30,000 award for injury to feelings was well outside the Vento guidelines and there was no basis for awarding aggravated damages: Commissioner of Police for the Metropolis v Shaw UKEAT/0125/11/ZT applied.


 


HIS HONOUR JUDGE BIRTLES

Introduction

1. This is an appeal by the Newcastle Upon Tyne Hospitals NHS Foundation Trust (hereinafter "the Trust") against the Judgment of an Employment Tribunal sitting in Newcastle in April 2011. The reserved Judgment was sent to the parties on 18 May 2011.
2. By that Judgment, the Tribunal found that the Trust had failed in a number of respects to take such steps as were reasonable to prevent provisions, criteria and practices ("PCPs") which it applied from placing the Claimant at a substantial disadvantage in comparison with persons who were not disabled.
3. The Tribunal made what it described as an "interim award" of compensation limited to damages for injury to feelings (excluding any element for loss of congenial employment) of £30,000, aggravated damages of £10,000, together with interest of £260.50 (being 0.5 per cent for 25 months on the £30,000 only).
4. The Tribunal adjourned the remaining aspects of remedy to a further hearing at another date.
5. The Appellant is represented by Ms Holly Stout of counsel. The Respondent is represented by Mr Alfred Weiss of counsel. We are grateful for both counsel for their oral and written submissions.

The factual background

6. The Tribunal made extensive findings of fact at paragraphs 3.1-3.79 of its Reasons. In summary, the factual background is as follows:
7. The Claimant commenced employment as a full-time (37.5 hours week) radiographer at the Freeman Hospital, Newcastle upon Tyne on 21 July 2008.
8. On 19 November 2008 she suffered an accident at work which resulted in injury to her right arm. She went off work sick and remained off work until 30 March 2009 (Judgment, para. 3.1).
9. As she was in her first year of service, her sick pay entitlement was one month's full pay and two months' half pay. Her pay dropped to half pay from 25 December 2008. However, Occupational Health (Dr Paterson) confirmed that she met the requirements for payment of Temporary Injury Allowance ("TIA") under the Benefit Regulations. TIA 'tops up' sick pay to a rate equivalent to 85 per cent of full pay. It was paid from late December 2008. The payment is not pensionable. (Judgment para. 3.2).
10. The Claimant was referred to Occupational Health during her absence and in turn to a Consultant Neurosurgeon (Mr Gerber) (Judgment, paras. 3.3-3.5); a Consultant Orthopaedic Surgeon (Mr Williams); and (later) the Pain Management Programme Team including a Consultant in Pain Management (Dr Wilkinson), a clinical psychologist (Dr Blackburn) and a Physiotherapy Clinical Specialist (Fraser Gething).
11. The Claimant was concerned about her financial position and complained about not being on full pay. She intimated that she might have to sue the Trust for loss of earnings, but then obtained Industrial Injury Benefit from DWP which topped up her earnings (Judgment, para. 3.6).
12. By mid-March 2009 Occupational Health recommended a phased return to work on light duties for the Claimant (Judgment, paras. 3.7-3.8). Arrangements were made by her line manager, Graeme Hughes, for her to return to a different job in MRI. The Claimant required training in that. This was arranged by Mr Hughes (Judgment, para. 3.10).
13. At that time, it was the Trust's policy to pay only for the hours done on a phased return to work. TIA under the Benefit Regulations is not payable (alternatively, is not as a matter of policy payable - see further below) where an employee is working on a part-time basis. Returning employees concerned about reductions in pay could use annual leave to make up the shortfall if they wished. The Claimant was informed that this was what she would have to do too (Judgment, para. 3.8).
14. At the point of her return to work on 30 March 2009 the Claimant had 73.5 hours (just under 10 days) left to take that year. The leave year ended on the following day, 31 March 2009. Normally the Claimant would have been permitted to carry forward only 37.5 hours leave, but she was instead permitted to carry forward the full 73.5 hours leave (Judgment, para. 3.8). The Claimant's entitlement to annual leave under clause 5 of her contract was 27 days plus 8 days bank holiday. She thus had (although this is not recorded in the Judgment) some 37 days annual leave to use at the point that she returned to work.
15. The Claimant initially returned on half-shifts working four hours each day for the week commencing 30 March 2009. She then took annual leave for just over a week, returning on 14 April when she worked 4 hours, then increased her hours each day until she was working 7.5 hours each day. (Judgment, para. 3.9). In the week commencing 27 April she managed only two days and then went sick. (Judgment, para. 3.13) In the week commencing 11 May she worked two days with a day off in between (Judgment, para. 3.13).
16. The Claimant was concerned that she was not able to work full-time because of the injury, but that she could not afford to work part-time because of the consequent reduction in pay (Judgment, paras. 3.11, 3.17).
17. By 15 May 2009 the Claimant considered that she had exhausted her annual leave entitlement (she wished to keep her pre-booked summer holidays and 'blackberry week' in reserve) (Judgment, paras. 3.14 and 3.17).
18. On 18 May 2009 she emailed Marie Lynn of the Human Resources Department (Judgment, para. 3.17) and said that she thought that "permanent injury allowance" could be awarded if someone was not able to work full-time. Marie Lynn replied to say that she would obtain the forms for Permanent Injury Benefit (PIB) (Judgment, para. 3.18). She also said that the advice from the payroll department was that TIA could not be paid to top up a part-time salary; it could only be paid if an employee was off work completely.
19. The following day the Claimant recommenced long-term sick leave and never returned to work. She was paid TIA until her dismissal.
20. On 19 May 2009 Mr Gerber wrote a report to Occupational Health (Judgment, para. 3.25) which the Tribunal at para. 3.26 identifies as being the moment that the Claimant could be recognised as disabled within the meaning of s.1 of the Disability Discrimination Act 1995 as amended and the date on which the Trust had knowledge of that. (Although no specific ground of appeal is advanced on this issue, it should be noted that Mr Gerber's report was to Occupational Health only, and was (like all the Claimant's medical records) not released until after these proceedings had been commenced. Up until that point, the Trust relied on the reports from Occupational Health.)
21. On 2 June 2009 the Claimant e-mailed Mr Hughes complaining about the difficult choice she had been faced with of either permanently reducing her hours to apply for industrial injury or staying on sick leave (Judgment, para. 3.27). Mr Hughes responded with suggestions for ways in which the Claimant might be able to undertake a full working week of very light duties (Judgment, para. 3.28). However, the Claimant rejected this saying that she could not do full-time because of the difficulties of coping with her home responsibilities with the injury (Judgment, para. 3.29).
22. On 8 June 2009, Occupational Health, having examined the Claimant, confirmed that the Claimant was fit to work Monday, Wednesday and Friday, but that she was unable to do so as she could not manage financially. He said that being off work was detrimental to the Claimant's mental health. He said he was getting updates from her specialists and would review her in July. (Judgment, para. 3.31).
23. At the end of July 2009 the Claimant saw Mr Gerber again and he provided a report to the effect that the long-term prognosis was not good and he would be happy to support an application for PIB (Judgment, paras. 3.35, 3.36). (As with all such reports, this was sent to Occupational Health and not to the Trust qua employer.)
24. Having been notified of Mr Gerber's view by the Claimant on 4 August (Judgment, para. 3.36), Mr Hughes and the Human Resources Department initiated a PIB application by (i) asking the Claimant to see Occupational Health to confirm the position; and (ii) requesting PIB forms from NHS Pensions (a department of NHS Business Services Authority, a Special Health Authority independent of the Trust). (Judgment, paras. 3.37, 3.38)
25. On 25 August 2009 Occupational Health confirmed that PIB should be applied for but that the Claimant should also be got back to work part-time if possible (Judgment, para. 3.39).
26. In September 2009 Natasha Harris of the Human Resources Department completed the PIB form, but sent it straight to the payroll department without first sending it to the Claimant to complete her section. As a result, the application was rejected, although it is unclear when or how (Judgment, paras. 3.44, 3.45). (The document was not available at the hearing because it had been lost in the post when being sent on to the Claimant, although the Tribunal does not appear to have considered this explanation for why the Claimant did not receive the forms: para. 3.53.)
27. On 6 November 2009, the Claimant was invited to a meeting on 1 December 2009 to review her sickness absence (Judgment, paras. 3.46-3.48). At this meeting she queried (for the first time) the progress of her PIB application and Natasha Harris made notes about this which the Tribunal found to be unsatisfactory (Judgment, paras. 3.46-3.48). Ms Harris said subsequently that she had forwarded the PIB form to the Claimant either on 23 November or (as she told Paul Turner when he later investigated this issue) around 3 December, but the Tribunal considered that she was not telling the truth about this (Judgment, para. 3.53).
28. By this point the Claimant had been seen by a pain management specialist, who recommended that she be placed on a pain management type programme (Judgment, para. 3.50).
29. On 22 December 2009 the Claimant commenced these proceedings (Judgment, para. 3.51).
30. On 4 January 2010, Natasha Harris telephoned the Claimant to see whether she had received the PIB form, and found that she had not (Judgment, para. 3.53).
31. On 5 January 2010, the Trust notified the Claimant that her PIB form had not been processed (Judgment, para. 3.52). Although not recorded by the Tribunal in its Judgment, in this letter, the Trust apologised 'profusely' for this (EAT bundle page 296).
32. On 27 January 2010 the Claimant wrote a letter of complaint to the Trust (Judgment, para. 3.51).
33. By 28 January 2010 both the Claimant and the Trust had completed the PIB form and it was sent to the NHS Pensions Agency on 3 February 2010 (Judgment, para. 3.53), together with additional information by Marie Lynn explaining the Claimant's situation (271) (although the Tribunal does not appear to have appreciated this: para. 3.53).
34. On 8 February 2010, the PIB form was returned by the NHS Pensions Agency with a compliments slip, "to the effect that a date for permanent change to lower paid employment must be known before they process the form" (Judgment, para. 3.53).
35. A further meeting under the sickness absence procedure was held on 8 February 2010. At this meeting the Claimant was asked again about returning to work part-time, but said that she was no longer able to as she could not hold a pen or a computer mouse. The possibility of the Claimant retraining as a clinical psychologist was discussed. However, by letter of 15 February 2010 (not referred to in the Judgment), the Trust confirmed that it was not able to offer such training (suggesting she approach a university for this), although it was made clear that other possibilities for redeployment could be explored.
36. The Tribunal found that by this time, "nothing would have got the Claimant back to work as a radiographer" and said that:

"From here on [...] our findings of fact and conclusions can be shorter. They relate more to aggravated damages than any real possibility of re-deployment." (Judgment, para. 3.54).

37. On 12 February 2010, Paul Turner of the Human Resources Department responded to the Claimant's letter of 27 January 2010 (Judgment, para. 3.53). Again, although not recorded by the Tribunal in its Judgment Mr Turner in this letter says, "All in all, I would wish to express an unreserved apology for the distress and anxiety this has brought about" (272).
38. On 17 February 2010, Mr Hughes (in good faith, the Tribunal found) made another referral to Occupational Health to advise on redeployment (Judgment, para. 3.56). On 3 March 2010, Occupational Health confirmed (without having seen the Claimant) that she ought to be able to work part-time as an MRI radiographer (Judgment, para. 3.57). This offer was made formally at a meeting on 23 March and confirmed in writing on 30 March (Judgment, para. 3.58).
39. In April 2010 Occupational Health saw the Claimant and reported that she was in worse health (Judgment, paras. 3.59-3.60) and on 22 July 2010, Occupational Health reported that the Claimant had now started on her pain management programme and although she was unfit for work at that time he was, "confident that this new approach should enable her to consider coming back to work at some stage in the near future" (Judgment, para. 3.62). The Tribunal found that Occupational Health was trying to help the Claimant by writing this letter, although it also found that Occupational Health was "wrong" about this prognosis by reference to a later report (Judgment, para. 3.63).
40. On 17 August 2010, following a meeting at which the Claimant said that she was not fit for work of any sort, the Trust wrote to the Claimant indicating that termination of employment may have to be considered (Judgment, para. 3.66). Over the following months, further advice was taken from Occupational Health. The Claimant was due to have a stellate ganglion block which it was thought might assist, but Occupational Health advised on 25 November 2010 that it was unlikely to transform the situation (Judgment, paras. 3.69-3.72). The Claimant was asked to see Occupational Health again, but refused so the Respondent agreed to go ahead without her seeing them (Judgment, paras. 3.73-3.75) (although it is not clear that the Tribunal appreciated that this requirement had been waived).
41. The Claimant's employment was terminated following a hearing which she did not attend (but submitted a statement to) on 10 February 2011 (paras. 3.77-3.79).
42. Since termination of her employment, the Claimant has been awarded PIB by the NHS Pensions Agency, for which benefit the Trust is billed on a quarterly basis.

The issues identified by the Employment Tribunal

43. The Employment Tribunal identified the issues as follows:

"1.2 Did the respondent at any relevant times:

(a) apply any PCP's in a way which placed the claimant at a substantial disadvantage in comparison with persons who are not disabled

(b) is so, did it take such steps as were reasonable, to prevent such PCP's from having that effect.

1.3 However, it may help to break down that issue. Because the claimant was unrepresented we handed out a draft list of issues at the beginning of the Hearing. Some 'melted away' as the case progressed, e.g. a query over the amount of sick pay. After discussion it was agreed the ones we would decide at this Hearing. By combining our draft, using the abbreviation of a DPCP (D being a 'disadvantageous' PCP in comparison with persons who are not disabled) and incorporating but paraphrasing the issues helpfully re-formulated by Mrs Callan we have the following:

1.3.1 Was the practice of requiring persons on RTW to use annual leave to cover their normal working hours not worked, or not to be paid for those hours, a DPCP

1.3.2 Did the respondent apply any DPCP and if so take such steps as were reasonable to prevent substantial disadvantage particularly by permitting changes to the claimant's hours and range of duties to enable a RTW

1.3.3 Did the respondent apply any DPCP and if so take such steps as were reasonable to prevent substantial disadvantage particularly by enabling her to be paid TIA and/or PIB and/or equivalent payments while returning to work

1.3.4 Did the respondent apply a DPCP and fail to take such steps as were reasonable to prevent its adverse effects by requiring her permanently to reduce her contracted hours as a pre-condition of submitting her application for PIB and generally by its handling her application for PIB

1.3.5 Did the decisions to dispense with the step of awaiting the advice of Mr Fraser Gething (her pain management advisor) and the failure to contact him until November 2010 constitute a failure to make reasonable adjustments

1.3.6 Would it have been a reasonable adjustment to have her seen by another Occupational Health (OH) doctor from about November 2010 onwards

1.4 A major concern, first raised by our Employment Judge at a Case Management Discussion by telephone in August 2010, echoed by Employment Judge Shepherd at a PHR in November, but not resolved until the Hearing, was the interaction between this case and a civil claim against the Trust which is shortly to commence. The overriding objective in the Employment Tribunal Rules of Procedure is to deal with cases justly. This includes saving time and expense. Rule 60 gives a general power to regulate our own procedure and Rule 25 provides for more than one full Hearing to be held giving by way of example one Hearing on liability and another, or others, on remedy. Our Rules do not specifically provide for interim awards because they do not need to. The general power suffices. In Chorion Plc v Lane [[1999] All ER (D) 194] the High Court said where a claim in an Employment Tribunal involves the same issued of fact as one that is or may be proceeding in a Court, the Court case should normally go first. That is the general rule.

1.5 The law provides certain matters may be tried only by and Employment Tribunal. Others can only be dealt by a Court. Some claims overlap between the two. In Sheriff v Klyne Tugs (Lowestoft) Limited [[1999] IRLR 481] the Court of Appeal was dealing with a claim brought under the Race Relations Act for direct race discrimination which had not included a claim for personal injury arising out of the acts of discrimination. It was held that following the rule in Henderson v Henderson [[1843] 3 Hare 100] such claims would have been made before the Employment Tribunal so that, when brought before a Civil Court, the Court was estopped from dealing with them. Again, the Court explained there are special circumstances in which this bar to proceeding would not apply.

1.6 In our view it is most important we should be clear about what we are and what we are not dealing with. By discussion with the parties we agreed Issues numbered 2, 4 and 8 in our first draft should not be decided at this hearing. They read:

Issue 2

(a) To what extent, if at all, did the respondent's failures cause the claimant's condition to deteriorate (in particular to develop Complex Regional Pain Syndrome (CRPS)

(b) If at all, to what extent do her losses flow from that.

Issue 4

Did the respondent fail to take such steps as were reasonable to enable the claimant to minimise financial loss and ultimately avoid her dismissal

(a) by offering her nothing other than a part time radiographer post on 18^th February and 23 March knowing she was genuinely unfit for such work

(b) by, from 24 April onwards failing to follow Dr Paterson's advice to 'think outside the box' in searching for re-deployment opportunities

Issue 8

(a) Was her dismissal an act of unlawful discrimination due to it being a consequence of failures to make reasonable adjustments.

(b) If so, what difference if any would such adjustments have made

1.7 The claimant says that had medical advice been followed and steps been taken to enable a phased RTW her condition would not have been exacerbated. She is claiming career long loss and her schedule of loss comes to nearly £2 million. The accident which she sustained on 19 November 2008 is alleged to have been the result of negligence or breach of statutory duty by the respondent. If that claim succeeds Issue 2 will become otiose because if the claimant shows her illness is entirely attributable to the accident, any subsequent failure by the respondent to take steps which may have arrested the development of the symptoms will not prevent her from recovering her losses in full in the Court. If the original accident is held not to have been as a result of any negligence of breach of statutory duty by the respondent, Issue 2 can be brought back to this Tribunal and provided we avoid making any findings on that issue then in extreme circumstances in which this presently constituted Tribunal could not be reconstituted, a differently constituted Tribunal could deal with the second part of the Hearing. In the evidence we have heard, the only comment of a medical nature, apart from the claimant's own assessment, came from Dr Paterson who admitted he was not an expert in the field. Medical reports would definitely be required to enable the Tribunal to come to an informed decision on both limbs of Issue 2.

1.8 Similarly, if the civil claim is resolved in the claimant's favour, Issue 4 will become otiose. If it goes against her, the matter can be returned to the Tribunal.

1.9 Issue 8 is slightly more complicated. The claimant helpfully accepts that by the time she was dismissed her medical condition was so poor that there was no viable job in Radiography which she could have undertaken and unless she could have been completely retrained no vacancy within the Trust into which she could have been placed. It is therefore highly probably that the civil claim, whilst not resolving the issue as such, would if it succeeds give a remedy which would make the issue otiose. Again, if the civil claim does not succeed this matter can be brought back to this Tribunal.

1.10 We further agreed the issues should only be decided to the extent of liability and compensation limited to injury to feelings which would include aggravated damages, both being exclusively within the jurisdiction of the Employment Tribunal. In Ministry of Defence v Tunnock [1994] IRLR 509 the Employment Appeal Tribunal held there was sufficient overlap between compensation for injury to feelings and loss of congenial employment due to discrimination to enable Employment Tribunals to include within an injury to feelings award compensation for the hurt caused by the loss of a chosen career which gave job satisfaction. Our Employment Judge has always dealt with it, and Smith v Manchester City Council [[1974] KLR 1] awards, separately from injury to feelings, loss of congenial employment is a standard head of recovery in the civil claim for negligence or breach of statutory duty. In our Judgment the better course is for us to make the award for injury to feelings without including an element for loss of congenial employment at this stage, leaving that matter to the Civil Court in the first instance. If the civil claim is not successful we could make a further award for loss of congenial employment. We note in her schedule of loss a claim for exemplary damages on which we have not heard submissions. We doubt we have the power to award it (see Rookes v Barnard [[1964] UKHL 1] and Kuddus v Chief Constable of Leicestershire [[2001] UKHL 29]) but leave the matter open for now.

1.11 The claimant discovered in August the respondent had not been making contributions to her pension or National Insurance, and had not told her so as to enable her to 'top up' her contributions. The claimant believes she may have been eligible for Ill Health Retirement (IHR) had contributions been made. She contends she would have made voluntary contributions (VC's) but the respondent says the scheme does not permit them. Issue 6 in our first draft was not a free standing claim. It read:

Issue 6

(a) Did acts or omissions of the respondent cause the claimant's service not to be pensionable so as to result in her being ineligible to obtain IHR.

(b) Could the claimant have made VC's

(c) What, if any, steps could the respondent have taken to enable the claimant's service to be pensionable and did its failure to take them constitute a failure to make reasonable adjustments.

1.12 Issue 6 involves a chain of causation which in brief summary is as follows. By reason of the respondent not permitting the claimant to return to work part-time other than in circumstances in which she would have to forego receipt of TIA (which she could not afford to do) she remained in receipt of that allowance which was, at that time at least, a non-pensionable payment upon which no NI was levied, from 19 May 2009 until her employment ended in February 2011. TIA and PIB are paid on a 'no blame' basis and are recoverable from a damages award against a third party for loss of earnings. Ill health retirement payments are not made to people who do not have two years pensionable service. There is strong evidence to suggest that no VC's could be made. However, PIB is also payable to a person whose employment has ended as a result of a permanent injury and appears to be at least as much as any ill health retirement pension the claimant would have received. Therefore, if issues were to be resolved in the claimant's favour either at the Civil Court or a resumed Hearing here, whatever losses she sustained as a result of being ineligible for ill health retirement pension (when compared to the entitlement which she still does have to PIB) would be recoverable as compensation as naturally flowing from the breaches identified. On that analysis, this is not a free standing issue at all, simply an aspect of quantum on issues 2, 4 and 8.

1.13 We discussed all our proposals with the parties at the beginning of the third day of evidence and, after taking instructions, Mrs Callan was content to proceed on this basis, as was the claimant. It is clearly in furtherance of the overriding objective because it means a claimant, who will be represented in the civil proceedings and have the benefit of medical reports properly obtained to address issues of future loss with precision rather than guess work, can put all such reports before the Civil Court. Furthermore, because the respondent is, so we were informed, self-insuring, it is also just and equitable for them to have these issues addressed with the best available evidence. The course of action we have adopted will, whatever the outcome of the civil proceedings, enable the claimant to be fully compensated for her losses albeit not in one Judgment reached now, but rather by a combination of this Judgment and the Judgment of the Civil Court if the claim is successful, or this Judgment and a subsequent Judgment of this Tribunal in the event of the civil claim being unsuccessful."

The National Health Service Benefit Regulations 1995 (as amended)

44. The Benefit Regulations make provision for the payments of certain benefits to NHS staff by, or on behalf of, the Secretary of State. In practice, responsibility for managing this scheme is delegated to the NHS Business Services Authority ("NHS BSA") (a Special Health Authority and arms length body of the Department of Health).
45. Two types of benefit are relevant to these proceedings: TlA and PIB. The guidance provided by the NHS BSA on its website in relation to those two benefits is at EAT bundle pages 291-5.
46. TlA: the Benefit Regulations apply (by virtue of reg. 3) to anyone employed by an employing authority in the NHS who sustains an injury which is, "wholly or mainly attributable to his employment": EAT bundle pages 195-196.
47. Regulation 4(5) of the Benefit Regulations is that which defines TlA. It provides that if such a person, "is on leave of absence ... with reduced emoluments by reason of the injury," they shall be paid, "by that person's employing authority on behalf of the Secretary of State," such amount as is necessary to "top up" any other payments they are receiving to 85% of full salary.
48. The NHS BSA guidance further states that TIA, "stops when [the employee] return[s] to work or leave[s] employment," and that, "entitlement to TIA is decided by the […] NHS employer" (i.e. the Trust in this case).
49. The Tribunal considered (Judgment, para. 3.2) that there was nothing in the Regulations preventing T1A being paid for isolated days of leave after an employee had returned to work part-time. This is not, however, the correct reading of the Regulations. Nor (more importantly in the context of a claim for reasonable adjustments where it is necessary to identify the PCP "in play") is it the reading adopted by the NHS BSA and the Trust as a matter of policy.
50. PIB: entitlement to PIB, in contrast, is determined and paid by the Secretary of State or, in practice, by the NHS Pensions Agency (a division of the NHS BSA). It is then recharged to the employing authorities on a quarterly basis.
51. Regulations 4(2) and 4(4) of the Benefit Regulations deal with the two situations in which PIB is payable. Both depend on a person's earning ability having been, "permanently reduced by more than 10 per cent by reason of the injury or disease" (see Reg. 4(1)). Regulation 4(2) (198) is the provision requiring payment of PIB where a person's employment has terminated by reason of the injury. Regulation 4(4) is the provision dealing with payment where a person, "suffers a reduction in the emoluments of an employment [...] by reason of the injury." The amount payable by way of PIB can 'top up' earnings again to a maximum of 85% of previous full salary. In the event of a person who is in receipt of PIB obtaining alternative, better-paid employment in the NHS, PIB will be reduced: see reg. 13(4).
52. The NHS BSA guidance on its website (TB 492) explains that PIB is:

"[…] available to NHS staff who suffer a permanent reduction in their earning ability from employment of more than 10%. It can be paid if the number of hours the employee can work is permanently reduced [...]. To qualify for PIB, the NHS Pensions Division [part of NHS BSA] must be satisfied that an individual has suffered a permanent reduction in their earning ability of more than 10 per cent as a result of an injury or disease that is wholly or mainly attributable to their actual NHS duties."

53. The Tribunal considered (Judgment, paras. 3.27, 3.33, 3.43) that it was not a precondition of applying for PIB that the Claimant should reduce her hours. The Tribunal reached this conclusion on its reading of the Benefit Regulations and the PIB application form.
54. However, this conclusion ignores the fact that it was not the Trust that was responsible for determining when PIB would be paid but the NHS BSA. As set out above, the NHS BSA website makes clear that earnings do have to have been reduced in order to claim and, indeed, this is precisely what the NHS Pensions Agency did in practice in the Claimant's case when an application for PIB was eventually made. They returned the form saying that it could not be processed because the date for permanent change to lower-paid employment must be known (Judgment, para. 3.53).
55. The Claimant was aware of this requirement from May 2009 (Judgment, para. 3.26) and recognised the choice that she had to make between permanently reducing her hours or staying "on the sick" (i.e. on TIA) (Judgment, para. 3.27). She stayed "on the sick". A PIB application was nonetheless eventually made, but rejected.
56. At Judgment, para. 3.33 the Tribunal refers to the difficulty for the Claimant of returning to work part·time, losing TIA and having to 'take the gamble' that the Pensions Agency will agree that there has been a permanent reduction in earning ability. However, where a person has the support of all treating doctors (as the Claimant did), an application is likely to be successful. A successful application will usually be backdated as is clear from the information on the NHS BSA website (although the Tribunal found that the Claimant had not been informed of this: Judgment, para. 3.41). If the application is unsuccessful, the option always remains to return to TIA.

The Employment Tribunal conclusions

57. The Employment Tribunal's conclusions were as follows:

"5.1 The DDA demands action, not words. Discrimination occurs when one treats people whose circumstances are the same differently OR when one treats people the same when their circumstances are different. Mummery LJ was saying exactly that in [Stockton Borough Council v] Aylott [UKEAT/401/08] (see passages quoted in paragraph 2.9 above).

5.2 In Archibald [v Fife Council [2004] ICR 954], Lord Hope explained how the duty to make reasonable adjustments under the DDA can 'over-ride' another duty even under another statute. One argument from the respondent in this case is that s 59 applied to exempt them from any duty to pay TIA. We disagree, but even if we were wrong, the respondent could without statutory restriction have made an equivalent payment. They could have expedited PIB and removed the practice of requiring the claimant to 'take the gamble' of reducing her hours before the claim was submitted.

5.3 If policies which can reasonably be changed are an obstacle, the law requires the employer to ask itself, and the Tribunal to ask them, "Why did you not change the policy?" If doing what a claimant asks for might 'set a precedent' for anyone other than another person whose need was as great, that may be unfortunate, but resistance to a disabled claimant partly based on a view that, if the employer 'gives way', others, who did not really need any adjustments, may 'jump on the bandwagon' should not itself, enable an employer to say it was unreasonable to comply with a duty imposed upon it by the DDA. In this case, the respondent did not expressly argue this commonly advanced point but it was implicit in Mr Turner's 'Governance is paramount' argument. Our reference to Chief Constable of Lincolnshire v Weaver [EAT/0622/07/DM], shows we must consider 'wider implications' and we have. We find none which come close to showing the steps needed were beyond those it would have been unreasonable for this employer to take.

5.4 Lord Hope's reference to 'one more step' is important. An employer who says 'because we did something, the duty upon us is discharged' does not satisfy the DDA if the something it did was ineffective to alleviate the problem but something more would have alleviated it.

5.5 The claimant, having become disabled, was faced with a maze of policies (PCP's) governing the circumstances in which discretions could be exercised which would have enabled her, in practice, to return to work part time. Her skills would have been of value to patients and the Trust.

5.6 Non-disabled people, by definition, do not have a substantial long term reduction in their ability to perform normal day to day activities. Many non-disabled people will have temporary reduction in function, so if all applicants for Temporary Injury Allowance (TIA) are treated the same, disparate impact on disabled people is not self evident at least to begin with. On the first issue:

'Was the practice of requiring persons on RTW to use annual leave to cover their normal working hours not worked or not be paid for those hours a DPCP?'

Our answer is 'No', because whatever the merits of that policy, now changed, the PCP, initially, is disadvantageous to everybody and applies to a pool which may well include as many non-disabled people as disabled people. At that point, the facts shown fail the comparison test. Also, not argued by Mrs Callan, but clear from even the claimant's evidence, in the early part of 2009, the claimant was either not yet disabled, or if she was, the respondent could not yet have known that she was.

5.7 The second and third issues can be elided to become:

'Did the respondent apply any DPCP and if so FAIL to take such steps as were reasonable to prevent substantial disadvantage, by permitting changes to the claimant's hours and range of duties, but not paying her TIA and/or PIB and/or equivalent payments to supplement her part time work, so as to enable a RTW?'

Our answer is yes. By the time it became apparent that the future duration of the claimant's health problem was highly likely to amount to over twelve months the claimant became a disabled person. A PCP which initially fails the comparison test but as time goes by its continuing application irrespective of changing circumstances is apply to a pool of people containing those whose problems are continuing will axiomatically result in a substantial adverse effect on more disabled than non-disabled people. As we read the Injury Benefit Regulations the objective is plainly that temporary injury allowance will move seamlessly into permanent injury benefit for those who continue to be unable to perform their duties to an extent that causes them to suffer a greater than 10% loss of their earning capacity. People who qualify for permanent injury benefit would be, mainly if not exclusively, disabled people. This particular disabled person had an opportunity by a phased return to work of improving her physical and psychological wellbeing which may in due course have enabled her to overcome her physical problems. The PCP applied was that she could, in practice, not. The group adversely effected [sic] is predominantly disabled people including the claimant. The reasonable step needed was to enable her to return part time without loss of earnings. The way in which the respondent has dealt with this case has ensured that:

(a) she will never know for sure if she might have improved, and suffered enormous worry and frustration being forced, in practice to stay at home

(b) in consequence, if the accident which caused her injury is held to be the liability of the Trust, she will now definitely suffer career long loss making the Trust's exposure to damages much greater than it would otherwise have been.

(c) for 25 months the Trust paid the claimant 85% of her full pay to stay at home and do nothing thus depriving patients of the Trust of her skills.

5.8 On the third issue:

'Did the respondent apply a DPCP and fail to take such steps as were reasonable to prevent the adverse effects by requiring her permanently to reduce her contracted hours as a pre-condition of submitting her application for PIB and generally by its handling her application for PIB?'

Our answer is yes. In an employment such as the claimant's and in nearly every job we can imagine in this or any other NHS trust, the majority of functions which are physically part of the job are day to day activities. Hence, the vast majority of applicants for permanent injury benefit will almost certainly be disabled. Ms Lynne said permanent injury benefit is a complex subject very rarely arising in the Trust, that she relied for advice on the payroll department and herself had not even read the employer's guidance notes. The Pensions Agency said there was a requirement that people reduce their hours before they could put in an application. Ms Lynne said the policy did not allow for flexibility as has been shown throughout this case. When we look at the Injury Benefits Regulations we fine [sic], as did Mrs Callan, no such rule. The respondent's argument that such people must 'take the gamble' is one we have rejected. By (a) never questioning their advice, (b) leaving Ms Harris in charge of a matter well beyond her experience and capability, (c) having no system to chase up or monitor progress of an application and (d) displaying no sense of urgency and losing track of forms, the respondent applied practices to the claimant which placed her the substantial disadvantage of being treated as any routine paperwork passing through HR would be. The comparison is that while all the trusts employees who have to deal with HR about anything may welcome greater efficiency disabled people NEED it. See further below. The reasonable step needed was to submit and press for early decision on the PIB application without the pre-condition of the claimant having to agree to and implement a permanent reduction in hours.

5.9 The last two issues can be elided:

'Did the decisions to dispense with the step of awaiting the advice of Mr Fraser Gething (her pain management advisor), the failure to contact him until November 2010 and the failure to allow the claimant to be seen by another Occupational Health (OH) doctor constitute a failure to make reasonable adjustments?'

Our answer is 'no' because such steps would have been futile. The damage was done. The PCP now was HR's practice of covering its errors, but there is no doubt in our mind that in whatever context they made errors they would do likewise. Again, Mrs Callan's comparison point seems sound.

5.10 What of our overarching issue?

Did the respondent at any relevant times:

(a) apply any PCP's in a way which placed the claimant at a substantial disadvantage in comparison with persons who are not disabled

(b) if so, did it take such steps as were reasonable, to prevent such PCP's from having that effect.

We answer 'yes' to (a) and 'no' to (b). Any person who is not skilled in navigating a path through HR policies requires help. Under the 'Wellbeing Policy', the Trust commits to improving the wellbeing of staff. Providing support to them in navigating a part through a maze of policies is part of that commitment. A person who is suffering pain and stuck at home, as the claimant was, needs for her own health, not just her own financial interest, to find solutions. Doubtless others would like HR's help to find solutions to their problems but for disabled people the lack of solutions is likely to have dire consequences. Far from finding solutions HR caused or allowed obstacles to be constructed which prevented the claimant from returning to work at a time when it would have been therapeutic for her to do so. The DDA gives as one example of a reasonable adjustment 'providing support'. Instead of doing so, the entire HR department, deliberately or not, washed its hands of all matters which it categorized as confined to the claimant's private life, financial and family commitments. It provided no support at all. The e-mails in which it said it was trying to do so, under the 'Wellbeing Policy' were not backed up by any action. With no pleasure at all, we have been driven to very serious findings. Mr Aynsley has been a member of the Tribunal's employer panel for many years, is about to retire, save for finishing this case, and said in deliberations he was appalled by the employer's actions in this case. That is our unanimous view. The initials HR stand for Human Resources. An employee who has trained as this claimant has is a resource to her employer and its patients. That resource has been squandered by an HR team who regard adherence to policies, process and procedure as more important than anything else. We do not have to infer that. Mr Turner said it using the word 'paramount'. Such an attitude defies the DDA and makes a mockery of the title 'Wellbeing Policy'."

Remedy

58. The Employment Tribunal then went on to deal with remedy. It said this:

"6.1 Section 17 A (2) says

(2) Where an employment tribunal finds that a complaint presented to it under this section is well-founded, it shall take such of the following steps as it considers just and equitable—

(a) making a declaration as to the rights of the complainant and the respondent in relation to the matters to which the complaint relates;

(b) ordering the respondent to pay compensation to the complainant;

(c) recommending that the respondent take, within a specified period, action appearing to the tribunal to be reasonable, in all the circumstances of the case, for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the complaint relates.

(3) Where a tribunal orders compensation under subsection (2)(b), the amount of the compensation shall be calculated by applying the principles applicable to the calculation of damages in claims of tort or (in Scotland) in reparation for breach of statutory duty.

(4) For the avoidance of doubt it is hereby declared that compensation in respect of discrimination in a way which is unlawful under this Part may include compensation for injury to feelings whether or not it includes compensation under any other head.

6.2 No recommendation we can think of will reduce the adverse effects on this claimant.

6.3 We deal first with injury to feelings. The guidelines in the case of Vento v Chief Constable of West Yorkshire [[2002] EWCA Civ 1871] have been updated in the sense that an inflation allowance has been made, in the case of Da'Bell v NSPCC [[2010] IRLR 19] Damages are not meant to punish. What matters is the effect on the claimant. Her condition may have deteriorated to the point where she could no longer be of use to the Trust in her chosen profession even if she had been enabled to return to work. She recognizes that. However, the claimant will go to her grave knowing that it could be her syptoms [sic] would have been ameliorated if the Trust had been less intransigent. She might have worked, if only part time, to the end of her career as a radiographer. When we put this case to her, she had to fight back her tears. That hurt will last forever. It is therefore a case at the very top of the scale. If a subsequent award by us in respect of loss of congenial employment does push the total over £30,000, so be it. The quoted cases are guidelines not a statutory 'cap', and if ever a case merited exceeding those guidelines, this is it.

6.4 Aggravated damages are to be awarded only where conduct is high handed malicious insulting or oppressive (see Scott v Inland Revenue [[2004] IRLR 713]) but such conduct may occur during the conduct of the defence (Zaiwalla v Walia [[2002] IRLR 697]) and, we believe during internal grievances. (We note there is a claim in the schedule of loss for an uplift under s32 Employment Act 2002 but can find no basis for it as it was repealed on 6^th April 2009)

6.5 The only time Mrs Callan in the conduct of this case made an error was in cross-examination of the claimant suggesting the problems that she was suffering when at home were 'only' psychological. When this was put to the claimant she broke down and understandably so. However, it is extremely difficult to put a case of this nature, on the instructions she had from the respondent, in a way that is not offensive to the claimant. The facts, as shown from the documents, were unhelpful to her. In those circumstances a barrister who resorts to legalistic argument cannot be blamed for doing so. She had a case to run and did so with her customary skill but for this one forgivable slip of the tongue.

6.6 However, underlying the respondent's case were suggestions the claimant stayed at home because it was more profitable for her to do so. We have rejected this fundamentally as we have the proposition that her psychological wellbeing can be divorced from her physical wellbeing. As the claimant said being at home meant she was getting up early in the morning at 5.30 to get four children, including one who is disabled, ready for school which was taking her twice as long as it normally would because she was only able to use one arm properly and then after they had gone to school she had nothing to do until they returned other than dwell on her disability. A return to work would have given her the boost and any incentive she required to keep active physically and mentally, and cost the Trust absolutely nothing. We have rejected the submission it would cause substantial administrative difficulties. It would simply involve keeping a record either on paper or by manual input into the computer system.

6.7 There is no escaping, no matter how tactfully it was put, the respondent's case was that administrative convenience was more important than her health and her career. There is no wonder she became so upset. This was high-handed behaviour. The deliberate attempts thereafter to make her appear the author of her own misfortune and a person who did not want to work were insulting. The failure to admit disability until six months after her ET1 was oppressive given the medical knowledge at the respondent's disposal. All this leads to a £10,000 award.

6.8 We add interest but the rate has plummeted to 0.5% on. The period over which we are awarding interest is from the latest time at which an adjustment could have been made, January 2010, to April 2011."

The application to admit fresh evidence

59. The Appellant was concerned that the Claimant may have exaggerated her arm injury, and that accordingly the Permanent Injury Benefit (PIB) that is currently being paid to the Claimant by the NHS Pensions Agency (and recharged to the Trust), and which will (absent a significant change in circumstances) continue to be paid for the rest of her life, may have been paid on the wrong basis. The Trust was also mindful of the Claimant's expressed intention to commence personal injury proceedings against the Trust.
60. The Trust accordingly commissioned Tait Walker, chartered accountants, to carry out covert surveillance of the Claimant. This they did on 20 and 21 July 2011, 9-11 August 2011 and 15 September 2011. Ms Stout submits that the result of this surveillance provides prima facie evidence that the Claimant is no longer 70 per cent disabled in her right arm, as she was assessed to be at the time of her claim for PIB and at the time of the Tribunal hearing. She submits that it "appears" that her condition has either improved significantly in the last few months since the Tribunal hearing in this matter, or that the Claimant significantly exaggerated her condition at the time of the Tribunal hearing. She is not able to say which, if either.
61. At the hearing of the appeal an application was made to admit this evidence in the form of DVD covert surveillance. We rejected the application for the reasons given in a short extempore Judgment. We referred ourselves to the test set out in the EAT Practice Direction 2008 at paragraph 8.2, and we were not satisfied that either grounds (a) or (b) were satisfied, for the reasons we gave.

The Notice of Appeal

62. There were four grounds of appeal. We will deal with them in the order that they were argued by Miss Stout. Grounds 3 and 4 were argued together.

Ground 3: Reasonable Adjustments

63. The ground of appeal is that the Tribunal erred in law in its approach to the reasonable adjustments claim under s.4A of the Disability Discrimination Act 1995 as amended. Specifically, it failed (a) properly to identify the PCPs applied; and (b) to carry out the proper comparison between the Claimant and someone who was not disabled. As a result it wrongly concluded that the Claimant was at a relevant substantial disadvantage and that the duty to make reasonable adjustments applied. Alternatively, the Tribunal reached a perverse conclusion that the Claimant was at a relevant substantial disadvantage and/or that it was reasonable to make an adjustment.

Ground 4: The NHS (Injury Benefit) Regulations 1995

64. This ground of appeal is that the Tribunal erred in law in its construction and application of the NHS (Injury Benefit) Regulations 1995 ("the Benefit Regulations") and/or erred in law in concluding that the Trust's refusal to pay Temporary Injury Allowance in order to "top up" the Claimant's wages placed the Claimant at a substantial disadvantage in relation to someone who was not disabled.

The law

65. Section 3A(2) of the Disability Discrimination Act 1995 as amended provides that a person discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.
66. Section 4A defines the duty to make reasonable adjustments as follows:

"4A Employers: duty to make adjustments

(1) Where-

(a) a provision, criterion or practice applied by or on behalf of an employer, ...

places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.

(2) In subsection (1), "the disabled person concerned" means-

[…]

ii) an employee of the employer concerned.

(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know-

(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1)."

67. Section 18B makes further provision in relation to the duty as follows:

"18B Reasonable adjustments: supplementary

(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to-

(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b) the extent to which it is practicable for him to take the step;

(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;

(d) the extent of his financial and other resources;

(e) the availability to him of financial or other assistance with respect to taking the step;

(f) the nature of his activities and the size of his undertaking; …

(2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments--

(a) making adjustments to premises;

(b) allocating some of the disabled person's duties to another person;

(c) transferring him to fill an existing vacancy;

(d) altering his hours of working or training;

(e) assigning him to a different place of work or training;

(f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment;

(g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person);

(h) acquiring or modifying equipment;

(I) modifying instructions or reference manuals;

(j) modifying procedures for testing or assessment;

(k) providing a reader or interpreter;

(1) providing supervision or other support.

(6) A provision of this Part imposing a duty to make reasonable adjustments applies only for the purpose of determining whether a person has discriminated against a disabled person; and accordingly a breach of any such duty is not actionable as such."

68. The proper approach to the reasonable adjustments duty has been considered in a number of cases. In particular, there has been consideration of the specific issue of how that duty works in the context of complaints about failure to make additional payments to disabled employees (such as was at issue in this case).
69. In RBS v Ashton [2011] ICR 632 the EAT emphasised the importance in all cases for the Tribunal focusing on the words of the statute and considering the matter objectively rather than considering the way the employee has been treated generally, or the employer's thought processes. Mr Justice Langstaff said this:

"2. The Act demands an intense focus by an Employment Tribunal on the words of the statute. The focus is on what those words require. What must be avoided by a Tribunal is a general discourse as to the way in which an employer has treated an employee generally or (save except in certain specific circumstances) as to the thought processes which that employer has gone through. Those may be relevant, though only to the extent necessary, to answer "the reason why" question (see cases such as Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11 and Chief Constable of West Yorkshire v Khan [2001] ICR 1065 in this and other fields of discrimination where direct discrimination is in play) or, it may be, where the reasons for disability-related discrimination are in play or as to the reasons for dismissal in a case in which section 98 of the Employment Rights Act 1996 falls to be applied. A focus on the words and requirements of the Disability Discrimination Act 1995 will show that the thought processes an employer has gone through are unlikely to be relevant in all but some unusual cases where what is in issue is the question of reasonable adjustment.

[…]

14. A close focus upon the wording of 3A(2), 4A and 18B shows that an Employment Tribunal - in order to uphold a claim that there has been a breach of the duty to make reasonable adjustments and, thus, discrimination - must be satisfied that there is a provision, criterion or practice which has placed the disabled person concerned not simply at some disadvantage viewed generally, but at a disadvantage which is substantial and which is not to be viewed generally but to be viewed in comparison with persons who are not disabled.

15. The duty, given that disadvantage and the fact that it is substantial are both identified, is to take such steps as are reasonable to prevent the provision, criterion or practice (which will, of course, have been identified for this purpose) having the proscribed effect - that is the effect of creating that disadvantage when compared to those who are not disabled. It is not, therefore, a section which obliges an employer to take reasonable steps to assist a disabled person or to help the disabled person overcome the effects of their disability, except insofar as the terms to which we have referred permit it.

24. Thus, so far as reasonable adjustment is concerned, the focus of the Tribunal is, and both advocates before us agree, an objective one. The focus is upon the practical result of the measures which can be taken. It is not - and it is an error - for the focus to be upon the process of reasoning by which a possible adjustment was considered. As the cases indicate, and as a careful reading of the statute would show, it is irrelevant to consider the employer's thought processes or other processes leading to the making or failure to make a reasonable adjustment. It is an adjustment which objectively is reasonable, not one for the making of which, or the failure to make which, the employer had (or did not have) good reasons."

70. It is of vital importance, first, to identify the relevant PCP: see Smith v Churchills Stairlifts PLC [2005] EWCA Civ 1220, [2006] ICR 524 per Maurice Kay LJ at para. 34 and RBS v Ashton supra at para. 16.
71. Next, the Tribunal must identify whether or not the Claimant is by the application of that PCP placed at a substantial disadvantage in comparison with persons who are not disabled: see Smith v Churchills supra at para. 40 and RBS v Ashton supra at para. 18 and para. 79.
72. If a non-disabled person would be affected by the PCP in the same way as a disabled person then there is no comparative substantial disadvantage to the disabled person and no duty to make reasonable adjustments arises.
73. Further, it is plain from a number of cases that the duty to make reasonable adjustments will not normally require an employer to make additional payments to an employee under a sick pay policy.
74. Thus in RBS v Ashton supra it was recognised that the sickness absence procedure applied equally to all employees who were all equally advantaged or disadvantaged by it and accordingly no duty to make reasonable adjustments arose: see paras. 39-40 and para. 79. (Note that the particular policy at issue in that case happened to provide for additional periods of full pay to be paid to someone absent through a disability. However, that was a matter of discretion, not something that the employer was obliged to do given that there would have been no comparative disadvantage to the disabled person if such provision had been absent.)
75. In Meikle v Nottinghamshire County Council [2004] IRLR 703, CA, the drop in the disabled Claimant's pay from full to half pay under the sick pay policy was less favourable treatment for a reason related to disability which was not justified because of prior failures to make (non-monetary) reasonable adjustments. It is significant that the drop to half pay was not itself identified as being something in respect of which a reasonable adjustment should have been made.
76. The duty to make reasonable adjustments in s.4A is, of course, expressed not in terms of a duty to alleviate disadvantage arising in consequence of a disability or for a reason relating to disability or (to borrow the language now in the Equality Act 2010) arising from disability. The duty arises only where the disabled person is substantially disadvantaged in comparison with persons who are not disabled. The disadvantage has to be because of the disability: cf generally Archibald per Lord Hope at para. 12 and para. 19, and per Lord Rodger at para. 42.
77. In O'Hanlon v HMRC [2007] EWCA Civ 283, [2007] ICR 1359, the Claimant contended that she should have been paid full pay for the whole of the period that she was off work by reason of her disability. The Court of Appeal accepted that the Tribunal had been right to find that the policy in that case placed the Claimant at a substantial disadvantage in relation to those who were not disabled. However, it did so on the specific basis that absence owing to disability had absorbed the sick pay that a non-disabled person normally enjoyed for occasional ailments: see per Sedley LJ at para. 94.
78. Further, the Court of Appeal approved the EAT's approach to reasonableness and justification where the disadvantage relied upon is financial hardship. In so doing, the Court of Appeal also approved the EAT's observation that financial hardship is something which can affect the non-disabled in the same way as the disabled. Hooper LJ said this:

"45. In my view the only particular feature put forward on behalf of the claimant was that of financial hardship. I agree with the appeal tribunal that it would be quite unjust and unrealistic to say that the employers should now be found to have failed to establish justification because they did not have regard to other unstated factors relating to this claimant.

46. As to the particular feature I agree with what the appeal tribunal said about it, at para 64:

'It was suggested that the claimant would suffer hardship as a result of the reduction in pay, but it was not alleged that she was in any essentially different position to others who were absent because of disability related sickness [...] it seems to us that it would be wholly invidious for an employer to have to determine whether to increase sick payments by assessing the financial hardship suffered by the employee, or the stress resulting from lack of money - stress which no doubt would be equally felt by a non-disabled person absent for a similar period.'

47. Given my agreement with the appeal tribunal on this point, the appeal on the full pay argument must fail."

79. See also paras. 67-68 of the EAT's Judgment in O'Hanlon, quoted with approval by Hooper LJ at para. 28 and para. 57 on why it is only in very rare cases that it might be appropriate for the Employment Tribunal to usurp the employer's function and hold that additional pay would be a reasonable adjustment.
80. It is also important to note, given the comments made by the Tribunal in this case about how an earlier dismissal might have benefitted the Claimant (at paras. 3.60, 3.76), that the duty to make reasonable adjustments does not extend to any duty to enable an employee to leave employment on particular terms: see Tameside Hospital NHS Foundation Trust v Mylott UKEAT/0352/09-10 (Underhill P presiding):

"We turn to breach (d), the failure to consider ill-health retirement. [...] Read literally, the Trust's case is that there was no reason to suppose that facilitating an application by the Claimant for ill-health retirement would have helped to ensure his return to work. That is self-evidently true: ill-health retirement involves leaving the job, not doing it. That raises the question whether the duty under section 4A extends, in an appropriate case, to enabling a disabled employee who is no longer able to do the work (or any available alternative) to leave the employment on favourable terms. We find it hard to see how it can. We can identify in such a case no "provision, criterion or practice" which has an adverse "effect" on the employee which offering him ill-health retirement would prevent or mitigate. The whole concept of an adjustment seems to us to involve a step or steps which make it possible for the employee to remain in employment and does not extend to, in effect, compensation for being unable to do so."

The present case

81. In the present case an unusual procedure for identifying the PCPs was adopted by the Tribunal. Rather than taking them from the Claimant's pleaded case, the Employment Judge himself produced and handed out at the start of the hearing a list of issues (EAT bundle pages 62-66), then on day 3 a revised list of issues and a summary of the law and certain relevant case law (EAT bundle pages 67-79), which were later incorporated into the Tribunal's Judgment.
82. Issues 1, 3, 4, 5, 6 and 7 in that list appear to be the PCPs and reasonable adjustments that the Tribunal intended to consider. Ultimately, however, the Tribunal did not adhere strictly to that list, eliding some issues and identifying different PCPs in the course of its Judgment. As a result, Miss Stout submits that the Trust did not have a proper opportunity to make submissions on the reasonable adjustments ultimately identified by the Tribunal (cf Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664). However, no separate appeal point is mounted in relation to that procedural failing.
83. The Tribunal ultimately held that the Trust had failed to comply with the duty to make reasonable adjustments in relation to the following PCPs:

(a) Judgment, para. 5.7: the Tribunal answers in the affirmative its question 'Did the respondent apply any DPCP and if so FAIL to take such steps as were reasonable to prevent substantial disadvantage, by permitting changes to the claimant's hours and range of duties, but not paying her TIA and/or PIB and/or equivalent payments to supplement her part-time work, so as to enable a RTW?'

(b) Judgment, para. 5.8: the Tribunal answers in the affirmative its question 'Did the respondent apply a DPCP and fail to take such steps as were reasonable to prevent its adverse effects by requiring her permanently to reduce her contracted hours as a pre-condition of submitting her application for PIB and generally by its handling her application for PIB?'

(c) Judgment, para. 5.10: 'Did the respondent at any relevant times: (a) apply any PCPs in a way which placed the claimant at a substantial disadvantage in comparison with persons who are not disabled; (b) if so, did it take such steps as were reasonable, to prevent such PCPs from having that effect?' The Tribunal answers (a) in the affirmative and (b) in the negative.

The Tribunal invents the term 'DPCP' to mean 'disadvantageous provision, criterion or practice'. It uses the term 'RTW' to mean 'return to work'.

84. The last question (Judgment, para. 5.10) in fact identifies no particular PCP at all and the paragraph that follows provides no explanation. It falls right into the error identified in RBS v Ashton of simply listing things that the Tribunal did not like about the way the Trust had dealt with the Claimant and labelling them as failures to comply with the duty to make reasonable adjustments. That is a clear error of law.
85. It appears likely that the Tribunal had in mind three PCPs that it had identified earlier in the fact-finding part of its Judgment, viz:

(a) a PCP of not having a 'diary' system to chase urgent matters (para. 3.45);

(b) a PCP of 'treating PIB applications as routine, allocating them to a junior employee who has no idea what to do while one takes leave and then not checking up on progress when one returns' (para. 3.49); and

(c) a breach of the duty to make reasonable adjustments because 'no attempt was made by HR to explain the Claimant's predicament to the Pensions Agency and argue hers was a "special case"' (para. 3.53).

86. What the Tribunal said at para. 3.49 about the second of those PCPs was that it:

"[…] placed the Claimant at a substantial disadvantage in comparison with non-disabled people who might wish HR was more efficient in every respect but who do not NEED their support to preserve their health and career."

87. The Tribunal's reasoning in relation to these supposed breaches of duty is flawed:

(a) The breach identified at para. 3.53 of failing to explain the Claimant's circumstances to the NBS Pensions Agency was factually incorrect because it overlooks the supporting information provided by Marie Lynn to the NBS Pensions Agency: EAT bundle page 271.

(b) Further, the Tribunal in para. 3.53 appears to approach the claim as if it is an indirect discrimination claim rather than a reasonable adjustments claim. (Indirect disability discrimination was not, of course, prohibited prior to the Equality Act 2010.) This error emerges at several points in the Judgment (see eg paras. 5.6, 5.7, 5.8). Thus the Tribunal states 'Mainly disabled people would be in the position of needing PIB', i.e. it appears to be considering that substantial disadvantage can arise if proportionately more disabled than non-disabled people are affected by a particular PCP. However, this sort of 'statistical' or Enderby v Frenchay Health Authority [1994] ICR 112] type discrimination (cf Bury Metropolitan Borough Council v Hamilton and ors [2011] IRLR 358, EAT) has no place in a reasonable adjustments claim.

(c) The supposed PCP of 'treating PIB applications as routine, allocating them to a junior employee [...] [etc]' cannot sensibly be said to be a PCP at all. It is simply a recitation of the facts as they were perceived to be by the Tribunal in this case.

(d) There is no basis for saying that non-disabled people would not be equally affected by similar inefficiencies in the handling of their affairs by the Human Resources Department. Consider processing of maternity pay, or return to work following maternity, sick pay, a problem with salary payments, a request for flexible working to accommodate some urgent situation (bereavement, sick relative, etc.), a request for a reference to support a mortgage application or loan, etc, etc. All of these things are 'needed' by employees for their health and careers and if the Human Resources Department is inefficient they are all equally affected.

(e) In any event neither PCP places the Claimant at a substantial disadvantage because of her disability. The disadvantage that the Tribunal had in mind appears to be the Trust's failure to process her PIB application between 4 August 2009 (when the Claimant confirmed that she wished to apply for PIB and had the support of her treating specialist: see Judgment, para. 3.36) and 3 February 2010 when the application was sent off (Judgment, para. 3.53). However, the failure to process that application was not in fact a cause of any disadvantage to the Claimant since:

i. During those months that the application was not processed, the Claimant was paid at 85% of full pay, which would have been what she would have received had she returned to work and obtained PIB anyway; and

ii. The application for PIB was not what was required for the Claimant to return to work since the NHS Pensions Agency would not (as they proved in February 2010) process a PIB application unless there had been a permanent reduction in hours (para. 3.53). A return to work was always available to the Claimant, but she did not return because it would mean a reduction in pay for a period while an application for PIB was made. She could not afford a reduction in pay because of the size of her mortgage payments and her family circumstances (her husband was then out of work) (para. 3.6).

The disadvantage was thus a financial one, attributable to the Claimant's personal and family circumstances - a disadvantage which, as the EAT and the Court of Appeal in O'Hanlon observed, could apply equally to the disabled as to the non-disabled.

88. For all these reasons, the Tribunal's general conclusion at para. 5.10 that the Trust breached the duty of reasonable adjustments in relation to a number of PCPs is an error of law.
89. Further, the Tribunal has also erred in law in relation to the two other breaches identified, i.e.:

(a) Judgment, para. 5.7: the Tribunal answers in the affirmative its question 'Did the respondent apply any DPCP and if so FAIL to take such steps as were reasonable to prevent substantial disadvantage, by permitting changes to the claimant's hours and range of duties, but not paying her TIA and/or PIB and/or equivalent payments to supplement her part-time work, so as to enable a RTW?' and

(b) Judgment, para. 5.8: the Tribunal answers in the affirmative its question 'Did the respondent apply a DPCP and fail to take such steps as were reasonable to prevent its adverse effects by requiring her permanently to reduce her contracted hours as a pre-condition of submitting her application for PIB and generally by its handling her application for PIB?'"

90. In relation to the first, the PCP in question is the Trust's 'policy' of paying people for the work they do. The Tribunal at para. 3.22 in fact accepted that the Trust as a public body could not be expected to pay full pay for part-time work. Yet it goes on to reach, emphatically, the opposite conclusion in this case. In so doing it has plainly erred in law for the following reasons:

(a) It has failed to recognise that, in relation to pay, the Claimant is in fact in exactly the same situation as anyone else returning to work on a part-time basis for whatever reason, whether that be because of an accident or because of maternity or child care reasons. Accordingly, the PCP does not place her at a disadvantage in comparison to someone not disabled.

(b) Indeed, had the Claimant not been disabled for a work-related reason (but either disabled for another reason or not disabled) the underlying basis of her claim would have fallen away altogether. She would not have been in a position where she was better off financially staying at home because she would not have been eligible for TIA.

(c) Such 'disadvantage' as has arisen has not arisen because the Claimant is, because of her disability, not able to return to work. She was able to return to work. A number of reasonable adjustments were made by the Trust to facilitate her return to work including altering her hours, allowing her to work flexible shifts, take annual leave when she wished, retraining her in a different line of work and offering other light duties.

(d) The only reason that she was not able to sustain a return to work on the part-time basis that the Trust had facilitated was because of her personal financial circumstances (as above) - not because of her disability. In that respect, she was not at a substantial disadvantage in comparison to someone who was not disabled, but in comparison to someone (for e.g.) whose mortgage was lower or had a partner in regular work.

(e) In line with O'Hanlon, supra and RBS v Ashton, supra, paying the Claimant 85% pay for 60% work would not have been a reasonable adjustment because of the implications that such an alteration might have for the Trust generally in respect of employees working part-time (whether because of work-related or non-work-related disability or because of other personal circumstances such as the need to care for a child or sick relative, etc.).

91. As to the second breach identified by the Tribunal, the PCP in question was the requirement that the Claimant permanently reduce her contracted hours as a pre-condition of submitting her application for PIB. However, this finding is simply unsustainable.
92. First, the PCP in question was not the Trust's, but that of a separate public body, the NHS Pensions Division of the NHS BSA: see paras. 3.26 and 3.53. Second, it is plainly a requirement that affects everybody equally, disabled or non-disabled. Indeed, it is hard to see how anyone who qualifies for PIB would not be disabled (given the need for an injury or illness causing a more than 10% reduction in earning ability); in those circumstances there really is no scope for a finding that the requirement operates to the disadvantage of the Claimant in comparison to the non-disabled since the non-disabled will simply not be affected by the rule.
93. Third, in reaching its conclusion on this issue, the Tribunal appears again to have erroneously approached the question as if it were one of indirect discrimination. The basis for the Tribunal's finding of substantial disadvantage appears to be that, "the vast majority of applicants for permanent injury benefit will almost certainly be disabled." However, as aforesaid, the mere fact that a particular rule affects more disabled than non-disabled people means that it may be indirectly discriminatory, but it does not mean that the duty to make reasonable adjustments arises.
94. Fourth, the disadvantage that arises from the application of this PCP is not one that arises from the Claimant's disability since it was not, for the reasons set out above, her disability that was preventing her from returning on a part-time basis, but her financial circumstances.
95. It follows that none of the PCPs identified by the Employment Tribunal are real or genuine PCPs. On that basis the appeal on grounds 3 and 4 must be allowed. If we are wrong about that then we consider grounds 1 and 2.

Ground 1: Injury to Feelings Award

96. This ground of appeal is that the Tribunal erred in law in that its approach to the award of injury to feelings and/or its determination that £30,000 plus interest was appropriate in this case was perverse.
97. The starting point remains the guidelines set out by the Court of Appeal in Vento, as uplifted in Da'Bell, i.e.:

"65. Employment Tribunals and those who practise in them might find it helpful if this Court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury.

i) The top band should normally be between [£18,000 and £30,000]. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed [£30,000].

ii) The middle band of between [£6,000 and £18,000] should be used for serious cases, which do not merit an award in the highest band.

iii) Awards of between £500 and [£6,000] are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings."

98. In this case, the Tribunal has failed to adhere to those guidelines. Indeed, it makes plain at para. 6.3 that it has deliberately exceeded the guidelines. This was not an appropriate case in which to do so.
99. The period over which the Tribunal found there had been a failure to make reasonable adjustments in this case was (at most) 19 May 2009 (when the Tribunal considered the Claimant had met the definition of disabled within the meaning of s.1 of the DDA 1995 as amended: Judgment, para. 3.26) to 8 February 2010 (at which point the Tribunal considered there was no prospect of the Claimant returning to work: para. 3.54) - 8 or so months.
100. Further, the nature of the unlawful conduct identified was not discriminatory harassment, but (essentially) failures to make reasonable adjustments through (in the Tribunal's opinion) misunderstanding of the Benefit Regulations, incompetence and failure to act. During this period the Claimant was not at work and being subjected to harassment or discrimination, but (at her own election) at home on 85% pay.
101. On any view, this was not a "top band" of Vento case, let alone a "top of top band" case or, even, once the Tribunal has added in an award for loss of congenial employment, one that should exceed the Vento bandings (see para. 6.3: "If a subsequent award by us in respect of loss of congenial employment does push the total over £30,000, so be it").
102. Moreover, the award is in any event manifestly excessive and/or disproportionate in that:

(a) The Tribunal has said that it has not made an award for loss of congenial employment, yet appears to have based the award on a finding that "She might have worked, if only part time, to the end of her career". This would therefore appear to equate to an award for loss of congenial employment - and a manifestly excessive one even on that basis given the Claimant's acceptance (para. 6.3) that her condition may have deteriorated anyway.

(b) It ignored the fact that the Trust had twice apologised to the Claimant for the handling of her PIB application saying at para. 3.55, "We have not detected a glimmer of apology or remorse", when in fact Mr Hughes had apologised profusely by letter of 5 January 2010 (EAT bundle page 296), referred to, without reference to the apology at Judgment para. 3.52) and Mr Turner had apologised unreservedly by letter of 12 February 2010 (Judgment, paras. 3.53; EAT bundle page 272).

(c) To arrive at such an award it must have allowed sentiment to cloud its judgement (see para. 5.10 and the language used throughout the Judgment) and/or to have taken into account conduct that although it considered it reprehensible was not unlawful or sufficiently connected to the unlawful conduct found: British Telecommunications PLC v Reid [20041 IRLR 327 at para. 15.

(d) Further, it allowed the award to be influenced by an erroneous or disproportionate view of the Trust's conduct. In particular:

i. At para. 3.5 the Tribunal was excessively critical of a letter taking some time to reach Occupational Health from the Claimant's neurosurgeon;

ii. At para. 3.8 the Tribunal said that the Claimant had "only 73.5 hours' left to take that year" when this was the day before the year-end and the amount left was just under 10 days, all of which she was allowed to 'carry forward';

iii. At para. 3.11 "HR did nothing to obstruct this", in respect of the Claimant's period of phased return to work;

iv. At para. 3.12 the Tribunal criticised the Human Resources Department for referring the Claimant to Occupational Health in response to the Claimant expressing that her symptoms were a lot worse since coming back to work;

v. At para. 3.15 the Tribunal criticises suggestions in the Trust's documents that the Claimant chose not to return to work because she was better off on the sick receiving TIA at 85% of full salary rather than working part-time at 60% of full salary. However, as is clear from paras. 3.11, 3.13, 3.21, 3.22, 3.27, 3.30, 3.31 of the Judgment and the Claimant's main complaint in these proceedings, that was in fact the position. The Trust nowhere suggested that the Claimant's choice was an easy one. Nonetheless it was a choice: she could have (and she said she was willing) to work part-time, but that meant reduced pay. After trying to return to work full-time she chose not to work and to receive TIA instead.

vi. At para. 3.20 "[…] a Radiographer telling HR which type of benefit should be applied for," where it is clear that HR has already requested forms for PIB (para. 3.18 - the correct term) and the Claimant is saying that she is "sure" it is called "permanent injury allowance" (not the correct term).

vii. At para. 3.55 characterising the choice given by the Human Resources Department to the Claimant as "between damaging her health or losing her house" without reflecting on the alternatives which included returning to work part-time and relying (as anyone would in financially straitened circumstances) on savings, overdraft or loan to tide her over for a few months whilst an application for PIB was made.

Finally, the Tribunal appears in making the award to have assumed that the Trust has by its actions caused her a life-long injury ("the Claimant will go to her grave knowing that it could be her symptoms would have been ameliorated if the Trust had been less intransigent [...] That hurt will last forever"). Not only is the basis for this conclusion unclear, but this was not an issue that the Tribunal was to determine in this case, being a matter for the personal injury claim in due course (see issue 2, 3).

103. For all those reasons the Tribunal plainly erred in law in awarding £30,000 by way of injury to feelings in this case. Doing the best we can we reduce the award to £11,000.

Ground 2: Aggravated Damages

104. This ground of appeal is that the Tribunal erred in law in its approach to the award of aggravated damages and/or its award of £10,000 was perverse.
105. First, the Tribunal has not given any express consideration to the global size of the award, £40,000 for non-pecuniary loss (not including a possible further award for loss of congenial employment). It is manifestly excessive and a long way outside the norm.
106. Second, the Tribunal has at para. 6.7:

(a) Erroneously characterised the Respondent's case as being that "administrative convenience was more important than her health and her career" when in fact this was but one (relatively small) part of the Respondent's case and one which was only expanded on in response to questions in Tribunal (see para. 3.23). Further, it was the Tribunal who in this paragraph suggested that this was the "real reason for refusing the claimant", a view it only reached because it had in effect already discounted all the other reasons advanced by the Trust (including its case on the law - see grounds 3 and 4 above).

(b) Erroneously considered that relying on administrative convenience is in some way impermissible 'high-handed' behaviour, when it is one of the factors expressly provided for in s 18B(1)(b) and (c) of the DDA 1995.

107. Third, the Tribunal has at para. 6.6 again erroneously taken into account its critical view of what it described as suggestions underlying the Trust's case that "The claimant stayed at home because it was more profitable for her to do so". As this was in fact exactly what the Claimant had done - indeed was the foundation of her complaint - it is wrong to criticise the Trust for making such "suggestions".
108. Fourth, the Tribunal has at para. 6.5 and para. 6.6 wrongly relied on the Trust's conduct of the proceedings as meriting an award of aggravated damages:

(a) It cannot do so unless the conduct was at least unreasonable, yet the Tribunal purports at para. 6.9 not to have determined that point and invites submissions on it.

(b) One suggestion in cross-examination (para. 3.59) that problems the Claimant was suffering at home were "only" psychological comes nowhere near the level of oppressive cross-examination necessary to merit such an award (compare the cross-examination on the Claimant's early psychiatric history and sexuality that merited the award in Ministry of Defence v Fletcher). This one question was perfectly relevant in any event. The disability relied on by the Claimant was only a physical one. The Trust was entitled to probe as to what were suggested to be the effects of her disability and what were not.

(c) Similarly, a failure to admit disability until six months after the ETl comes nowhere near being oppressive and the Tribunal has wrongly assumed here that the Trust had access to all the medical reports that were eventually in the Tribunal bundle. This was not the case. At that point the Trust only had the reports that had been specifically provided by Occupational Health, not the reports of the Claimant's consultants and specialists. In any event, the Trust's position in its original ET3 was not unreasonable. It accepted it was:

"[…] likely that the Claimant is disabled. Subject to receipt and review of the Claimant's GP and Occupational Health records, no admission is made as to whether the Claimant suffers from a disability within the meaning of the [DDA]" (para. 3).

The Trust in fact received the Claimant's GP records on the afternoon of 28 May 2010 and disability was formally conceded on 25 June 2010.

109. Fifth, the Tribunal was in error in finding that there were, "deliberate attempts thereafter to make her appear the author of her own misfortune and a person who did not want to work" (para. 6.7). It is unclear what this particular sentence is intended to refer to. Insofar as other criticisms were made of the Trust's conduct earlier in the Judgment that might relate to this sentence, the Tribunal has taken a perverse or disproportionate view of that conduct as follows:

(a) Judgment, para. 3.55:

We find the respondent knew the damage was done and that their failings had caused that. What we see is a catalogue of actions taken by the respondent to cover up their previous failure. We have not detected a glimmer of apology or remorse. Saying, 'I am sorry you feel that way', is not the equivalent of 'I am sorry we did not do more for you.' Indeed it is worse than that. The tactic of HR was to shift blame onto the claimant and make her appear to be the author [ofl her own misfortune. For example, at paragraph 35 of her statement Ms Lynn says: 'The Claimant chose not to work part-time from the end of March 2009 and was not prepared to reduce her hours to apply for [PIB]'."

As to the finding that the Trust knew the damage was done at the beginning of January 2010, this is wrong given that Occupational Health continued to advise the Trust for several more months that the Claimant may yet be able to return to work (para. 3.57, para. 3.60, para. 3.62) (the initial advice having been given following a telephone conversation with the Claimant: para. 3.76) and that at this point the Claimant had just completed the PIB form and thus indicated her intention to return to work if that application was successful.

(b) Judgment, para. 3.50 - holding that the Claimant could not be criticised by the Trust for not querying between mid-August 2009 and 1 December 2010 the progress of her PIB application, and suggesting that the Trust was attempting by making this small factual point (unreasonably) to lay blame at the door of the Claimant.

(c) Judgment, para. 3.58 - The Tribunal considered that the formal offer of a part-time job in MRI was made by the Trust as a back-covering exercise "regardless of how it would make the Claimant feel". However, as the advice from Occupational Health was that a return to work could still be considered at some point and the formal offer of a job can hardly be described as conduct equivalent to victimisation so as to warrant aggravated damages.

(d) Judgment, para. 3.65 in finding that Ms Lynn, "decided attack was the best method of defence" when the letter referred to perfectly reasonably refers to the possibility of terminating employment in light of the Claimant's stated position that she would not be well enough to return to work - something that the Tribunal in fact considered to be in the Claimant's interests (para. 3.60), therefore hardly an "attack". Further, the letter in fact sought the Claimant's agreement to this.

(e) Judgment, para. 3.60:

"Dismissal would actually have benefitted the Claimant by entitling her to State Benefits while awaiting the outcome of her PIB application which, unlike TIA, continues to be paid after termination. However, HR realised dismissal brought a risk of further claims."

The same result could have been achieved, if that was what the Claimant desired, by resigning. The Trust can hardly be criticised for not dismissing her, continuing to pay TIA and taking medical advice as to the Claimant's prognosis prior to taking the drastic step of dismissal.

(f) Judgment, para. 3.70 - "Bringing this issue to a close, of course means dismissing Ms Bagley still without having processed her application for [PIB] [...]." However, no further application for PIB had been made because the Claimant had not come back to work. No application could be made. TlA was the appropriate benefit to be paying given the state of affairs. PIB could be applied for in its place only if she returned to work part-time or if her employment was terminated.

(g) Judgment, para. 3.71 – 'forcing' the Claimant to meet with Dr Paterson and para. 3.76 - it appears that the Tribunal thought that this requirement was insisted on, when in fact it was withdrawn when the Claimant refused (paras. 3.74-5). We note also that at this point in the Judgment the Tribunal then leaps back 8 months to February 2010 and records again the formal offer made at that time as if this was something that happened in the early part of 2011 as a 'further' insult.

(h) Judgment, para. 3.76 - The Tribunal finds that when Mr Turner was asked by the Employment Judge as to:

"[…] whether HR believed the Claimant was not being truthful when she said she was too ill to do the MRI job. He WOULD NOT give a straight answer. All he said was 'Dr Paterson said to Marie she was fit to do it'."

However, (a) there is in fact nothing objectionable about that answer - it was true; and (b) there is nothing wrong in any event with an individual employee being sceptical about a Claimant's truthfulness provided (as was certainly the case and there is no suggestion to the contrary even from the Tribunal) he does not voice this opinion and does not treat the Claimant any differently as a result.

110. Finally, we drew the attention of counsel to the recent Judgment of another panel of the Employment Appeal Tribunal, presided over by the President, which handed down the Judgment on 29 November 2011. That decision is Commissioner of Police of the Metropolis v Mr H Shaw UKEAT/0125/11/ZT. This case is largely concerned with the circumstances in which an award for aggravated damages may be made by an Employment Tribunal. In essence, the Employment Appeal Tribunal decided that the Tribunal had erred in law in focusing entirely on the seriousness of the Appellant's conduct rather than on the impact on the Claimant, and thus in practice introducing a punitive element: aggravated damages are compensatory only and represent an aspect of compensation for injury to feelings rather than a wholly separate head of damages.
111. At paragraphs 22-24 the President said this:

"22. Criteria. The circumstances attracting an award of aggravated damages fall into the three categories helpfully identified by the Law Commission: see para. 16 (2) above. Reviewing them briefly:

(a) The manner in which the wrong was committed. The basic concept here is of course that the distress caused by an act of discrimination may be made worse by it being done in an exceptionally upsetting way. In this context the phrase 'high-handed, malicious, insulting or oppressive' is often referred to (as it was by the Tribunal in this case). It derives from the speech of Lord Reid in Broome v Cassell & Co Ltd [1972] AC 1027 (see at p. 10870), though it has it roots in earlier authorities. It is there used to describe conduct which would justify a jury in a defamation case in making an award at 'the top of the bracket of the bracket'. It came into the discrimination case-law by being referred to by May LJ in Alexander [[1988] IRLR 190] as an example of the kind of conduct which might attract an award of aggravated damages. It gives a good general idea of the territory we are in, but it should not be treated as an exhaustive definition of the kind of behaviour which may justify an award of aggravated damages. As the Law Commission makes clear^[1], an award can be made in the case of any exceptional (or contumelious) conduct which has the effect of seriously increasing the claimant's distress.

(b) Motive. It is unnecessary to say much about this. Discriminatory conduct which is evidently based on prejudice or animosity or which is spiteful or vindictive or intended to wound is, as a matter of common sense and common experience, likely to cause more distress than the same acts would cause if evidently done without such a motive - say, as a result of ignorance or insensitivity. That will, however, only of course be the case if the claimant is aware of the motive in question: otherwise it could not be effective to aggravate the injury - see Ministry of Defence v Meredith [1995] IRLR 539, at paras. 32-33 (p. 543). There is thus in practice a considerable overlap with head (a).

(c) Subsequent conduct. The practice of awarding aggravated damages for conduct subsequent to the actual act complained of originated, again, in the law of defamation, to cover cases where the defendant conducted his case at trial in an unnecessarily offensive manner. Such cases can arise in the discrimination context: see Zaiwalla (though N.B. Maurice Kay J's warning at para. 28 of his Judgment (p. 702; and Fletcher (above). But there can be other kinds of aggravating subsequent conduct, such as where the employer rubs salt in the wound by plainly showing that he does not take the claimant's complaint of discrimination seriously: examples of this kind can be found in Armitage [1997] IRLR 162], Salmon [[2001] IRLR 425] and British Telecommunications v Reid. A failure to apologise may also come into this category; but whether it is in fact a significantly aggravating feature will depend on the circumstances of the particular case. (For another example, see the very recent decision of this Tribunal (Silber J presiding) in Bungay v Saini (UKEAT/0331110/CEA).) This basis of awarding aggravated damages is rather different from the other two in as much as it involves reliance on conduct by the defendant other than the acts complained of themselves or the behaviour immediately associated with them. A purist might object that subsequent acts of this kind should be treated as distinct wrongs, but the law has taken a more pragmatic approach. However, tribunals should be aware of the risks of awarding compensation in respect of conduct which has not been properly proved or examined in evidence, and of allowing the scope of the hearing to be disproportionately extended by considering distinct allegations of subsequent misconduct only on the basis that they are said to be relevant to a claim for aggravated damages.

23. How to fix the amount of aggravated damages. As Mummery LJ said in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] ICR 318 at paras 50-51 (pp. 321-2), 'translating hurt feelings into hard currency is bound to be an artificial exercise'. Quoting from a decision of the Supreme Court of Canada, he said:

'The award must be fair and reasonable, fairness being gauged by earlier decisions; but the award must also of necessity be arbitrary or conventional.'

Since there is no sure measure for assessing injury to feelings, choosing the 'right' figure within that range cannot be a nicely calibrated exercise.^[2] Those observations apply equally to the assessment of aggravated damages - inevitably so since, as we have sought to show, they are simply a particular aspect of the compensation awarded for injury to feelings; but the artificiality of the exercise is further increased by the difficulty, both conceptual and evidential, of distinguishing between the injury caused by the discriminatory act itself and the injury attributable to the aggravating elements. Because of that artificiality, the dividing line between the award for injury to feelings on the one hand and the award of aggravated damages on the other will always be very blurred, and tribunals must beware of the risk of unwittingly compensating claimants under both heads for what is in fact the same loss. The risk of double counting of this kind was emphasised by Mummery LJ in Vento; but the fact that his warning is not always heeded is illustrated by Fletcher (above). The ultimate question must be not so much whether the respective awards considered in isolation are acceptable but whether the overall award is proportionate to the totality of the suffering caused to the claimant.

24. Relationship between the seriousness of the conduct and the seriousness of the injury. It is natural for a tribunal, faced with the difficulty of assessing the additional injury specifically attributable to the aggravating conduct, to focus instead on the quality of that conduct, which is inherently easier to assess. This approach is not necessarily illegitimate: as a matter of broad common sense, the more heinous the conduct the greater the impact is likely to have been on the claimant's feelings. Nevertheless it should be applied with caution, because a focus on the respondent's conduct can too easily lead a tribunal into fixing compensation by reference to what it thinks is appropriate by way of punishment or in order to give vent to its indignation^[3]. Tribunals should always bear in mind that the ultimate question is 'what additional distress was caused to this particular claimant, in the particular circumstances of this case, by the aggravating feature(s) in question', even if in practice the approach to fixing compensation for that distress has to be to some extent 'arbitrary or conventional'.

112. Both counsel made submissions on the Shaw case.
113. Applying the criteria so cogently set out by the President in the Shaw case, we consider that the Employment Tribunal made an error of law in the way it approached the issue of aggravated damages. Paragraphs 6.6 and 6.7 do not address the clear criteria set out by the President in the Shaw case, which are themselves a re-statement of the existing law. We fully accept that the Judgment in the Shaw case was not handed down until well after the Judgment and Reasons of the Employment Tribunal, but as we say, the President was doing no more than restating the existing law. This Tribunal in paragraphs 6.6 and 6.7 of its Reasons has focused upon the manner of the Respondent's behaviour rather than its impact upon the Respondent. Furthermore, the suggestion that there was a failure to admit disability until six months after the ET1 was "oppressive" is wrong as a matter of fact, because the Appellant did not have access to the occupational health reports until after proceedings were commenced, and indeed after disclosure. In all the circumstances of this case, and applying the Shaw case, we do not consider that an award of aggravated damages should have been made in this case. We therefore reduce the award of aggravated damages to nil.

Conclusion

114. It follows that the appeal is allowed on grounds 3 and 4 and we substitute a decision dismissing the claim of disability discrimination under section 4A of the Disability Discrimination Act 1995 as amended. If we are wrong about that then we allow the appeal on ground 1 and 2. We reduce the award for injury to feelings from £30,000 to £11,000, which is for a period of nine months, i.e. it is in the middle bracket of the Vento guidelines as amended.
115. We reduce the award of £10,000 aggravated damages to nil.

Note 1   See paras. 1.4-6 of Part II, noting that the identical passage in its consultation paper was approved both by Dyson J. in Appleton v Garrett [1996] PIQR 1 and by this Tribunal (Smith J presiding) in Ministry of Defence v Meredith (above), at para 29 (p. 542).    [Back]

Note 2   Practice is in our experience variable as to the extent to which claimants in discrimination cases give explicit evidence about the injury to their feelings. In principle they should certainly be asked to do so: it is wrong that tribunals should be asked to make assumptions. In London Borough of Hackney v Adams (above) Elias P warned against assuming that in every kind of discrimination case a claimant will inevitably have suffered injury to feelings. But the fact remains that even when such evidence is given, it is often difficult to assess objectively because so much depends on the idiosyncrasies of the particular witness, including their articulacy and their levels of stoicism or self-awareness. Some degree of standardisation is realistically inevitable.     [Back]

Note 3   We suspect that it is this kind of thinking that the Law Commission had in mind when making the observation in its consultation paper, which was picked up by Slade J in Fletcher (see paragraph 20 above), to the effect that awards of aggravated damages sometimes contain a punitive element.    [Back]