United Kingdom Employment Appeal Tribunal
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URL: http://www.bailii.org/uk/cases/UKEAT/2012/0587_11_1906.html
Cite as: [2012] UKEAT 0587_11_1906, [2012] UKEAT 587_11_1906
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UKEAT/0026/12/ZT
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8JX
At the Tribunal
Before
MR G LEWIS
LOCAL GOVERNMENT YORKSHIRE AND HUMBER APPELLANT
Transcript of Proceedings
JUDGMENT
APPEARANCES
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(of Counsel) Instructed by: Walker Morris Solicitors Kings Court 12 King Street Leeds LS1 2HL
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(The Respondent in Person) |
SUMMARY
VICTIMISATION DISCRIMINATION – Whistleblowing
The Claimant was a worker seconded to the Respondent. She was dismissed in circumstances giving rise to a claim for PIDA discrimination. The ET held that as the Respondent had failed to comply with the ACAS Code she was entitled to an uplift under section 207A Trade Union and Labour Relations (Consolidation) Act 1992. The appeal was allowed because claims under section 207A may only be made by employees, not by workers.
HIS HONOUR JUDGE SEROTA QC
Introduction
1. There are two appeals before the Appeal Tribunal by the Respondent from decisions of the Employment Tribunal at Leeds presided over by Employment Judge Wade, who sat with lay members. The first Judgment was sent to the parties on 26 October 2011. The Claimant’s claim for unfair dismissal was dismissed, but the Employment Tribunal upheld the Claimant’s claim for having suffered detriment by reason of having made a PIDA disclosure. The second Judgment was sent to the parties also on 26 October 2011 and dealt with the award, which was in the sum of £79,925.12, which included a 25 per cent mark‑up by reason of the Respondent’s non‑compliance with the ACAS Code of Practice. On 17 November 2011 HHJ McMullen QC referred the appeal on the grounds of liability to a full hearing, and on 20 January 2012 Langstaff P referred the appeal against the remedy hearing to a full hearing.
Factual background
2. I start now by reference to the factual background, which we have taken largely from the decisions of the Employment Tribunal. The Respondent is an employers’ association within the meaning of section 122 of the Trade Union and Labour Relations (Consolidation) Act 1992, known as TULR(C)A. It is an association of local authorities and other public‑service agencies. Nothing turns on the fact that it is an employers’ association. The Claimant has considerable experience working within the National Health Service commissioning projects.
3. At the relevant time the Deputy Chief Executive of the Respondent was a Mr Walmsley. When the Claimant, as I shall shortly explain, joined the Respondent she was in a responsible position with the Bradford and Airedale Primary Care Trust, earning approximately £35,000 a year. She had experience in commissioning projects in the NHS. She appeared to have a very bright future in public‑sector projects and commissioning management. The Bradford and Airedale PCT had invested significantly in her development. It had, for example, paid for a five‑week training course on transformational leadership skills at a cost to the PCT of some £15,000. The Claimant had formerly been the Chairman of the regional NHS black, minority and ethnic minority (BME) network. She had obviously ambitions to improve her skills that would enable her to achieve more senior posts.
4. In about 2009 the Government was funding a campaign against extremism in the Muslim community, and it made funds available for a project called the Get Connected project, which was designed to set up a Muslim women’s network called Get Connected. The funding was to come from the Department of Communities and Local Government and channelled through regional improvement and efficiency partnerships, known as RIEPs. The budget that was available to the project appears to be £160,000 over three years, but I may have misunderstood the figures. The Yorkshire and Humber RIEP, of which Mr Taylor was the director, provided support and commitment to match‑fund the project. The idea for this particular project was that of a Mrs Arshad‑Mather. She is a Justice of the Peace and a lay member of Employment Tribunals. She is also Chairman of a panel, the BME voluntary and community sector panel, that was to be responsible for the Get Connected project. The idea of this particular project was that of Mrs Arshad‑Mather; the idea was that, if successful, it could roll out nationally. Mrs Arshad‑Mather was responsible for securing the funding, and a request, or bid, for funds was put into the Yorkshire and Humber RIEP, which has since been abolished, but about that time it operated through the Respondent. Mrs Arshad‑Mather was the Chairman of the panel.
5. One of the issues in the case was the failure on the part of the Respondent to disclose the bid for funding, which was a matter of some surprise to the Employment Tribunal. The Yorkshire and Humber RIEP had no premises or management structure, and it was hosted by the Respondent. The Get Connected project required a project director. The salary was £40,000; the Claimant eventually, having applied for the post, was considered the best candidate, and on 12 June 2009 she was offered that post. It was to run from 6 July 2009 to 31 March 2011, when the funding provided would terminate.
6. For some reason, which has not been explained to us, the Claimant was not employed directly by the Respondent but was seconded from the Bradford and Airedale PCT. We believe that her salary was thereafter not paid by the PCT but was paid by the Respondent. The Employment Tribunal at paragraph 30 of its decision on liability noted that on one occasion shortly after the Claimant’s employment – and I use that term neutrally – had commenced Mrs Arshad‑Mather wrote to the Claimant:
“As to who your employer is, technically RIEP/LGYH [Local Government Yorkshire and Humber] provides the payroll function but they are not your employers, the Panel is and as such you need to clear any decision through the Adviser and later the Get Connected network.”
7. The Employment Tribunal suggest that the reason why the Claimant was seconded was because the panel had no infrastructure to support employment. The letter of appointment from the Respondent provided in terms that the Claimant was to continue as an employee of the Bradford and Airedale PCT and not of the Respondent. The Claimant was to report to Mr Taylor and to Mrs Arshad‑Mather. The panel does not appear to have had any management structure or any system for financial control. Mr Taylor, through the Respondent or the Yorkshire and Humber RIEP, was responsible for funding a number of projects. The Employment Tribunal say that he had “many projects”, and so he was not able to provide any, or very much, hands‑on management. At the time the Claimant joined the panel it had a number of expert advisors who provided consultancy and advisory services, including Mrs Arshad‑Mather and a Mr Sarwar. The lack of any form of management infrastructure had some surprising results; for example, when the Claimant turned up for her first day of work on 6 January 2009 there was nobody there to greet her at the Respondent’s premises. The Employment Tribunal observed at paragraph 20:
“This unpromising start was indicative of the unusual framework of the Claimant’s appointment: a secondee, responsible for the project of an organisation with no apparent infrastructure or management (the Panel) being ‘hosted’ by an organisation (the Respondent) whose interest in the project was as a funder and voluntary or ‘grace and favour’ provider of facilities to the programme. In those circumstances it was not surprising that there was some confusion as to the arrangements for the Claimant’s first day.”
8. After working for approximately two weeks the Claimant became uncomfortable with the level of the expenses being claimed by Mrs Arshad‑Mather, and she did express her concerns to Mr Taylor, the Respondent’s director. Mrs Arshad‑Mather had been claiming expenses in the figure of £15,000 for start‑up costs. The Claimant was also concerned she was responsible for managing the strategic delivery of outcomes; she might not want to take advice from Mrs Arshad‑Mather, who was a supplier to the project, an expert advisor to whom she reported, and she felt there was an inherent conflict in this. She was sufficiently uncomfortable as to consider returning to the PCT, but Mr Taylor encouraged her to stay.
9. The Claimant commissioned various communications work, including a website for the project, and Mrs Arshad‑Mather expressed concern in September that that had been done without her authority. She was concerned at the level of cost and wanted any expenditure over £1,000 to be approved by the board or the panel. In August 2009 the Audit Commission undertook a consultation exercise, which had been sent to the Respondent. Mr Taylor asked the panel to respond. On 4 September Get Connected was launched successfully, and at about this time Mrs Arshad‑Mather ceased to be Chairman and was succeeded by a Mr Lewis. Ms Lowe, the Vice‑Chairman, became Chairman of the programme and the Claimant’s line manager, and took responsibility for signing off expenditure. In early October the Claimant’s sister and husband decided to invest in a children’s play area in central Bradford called Monster Fun.
10. On 3 November 2009, or some time in early November, the Claimant expressed concerns about the propriety of expenses of Mr Sarwar, who was claiming expenses for a submission to the Audit Commission. He said this had been approved by Mr Taylor, although Mr Taylor never told the Claimant of this when she raised the matter. He subsequently confirmed that he had given this instruction, but there was an issue as to why it was necessary to pay a consultant to undertake work that could have been done in‑house by the Claimant. It appears that between July and September 44 days were charged at £450 a day, a total of £18,800. Mr Taylor’s signing authority was limited to £20,000.
11. Also, the Claimant was concerned that Mrs Arshad‑Mather had charged expenses for attending on a voluntary basis the National Muslim Women’s Advisory Group (NMWAG). Mrs Arshad‑Mather had also, together with Mr Sarwar, appeared to have charged between them £15,000 setup costs for which there were no approvals on file. On 5 November the Claimant raised her concerns with Mr Taylor, who said he would look into them. He could have said on that occasion, but did not, that he had in fact instructed Mr Sarwar to carry out work on the submission to the Audit Commission.
12. The Claimant was also concerned at what appeared to be differential rates being paid to various consultants – they were not all paid at the same rate – and she was concerned at the propriety of Mrs Arshad‑Mather and Mr Sarwar signing off their own expenses. Her concerns in relation to the submission to the Audit Commission were partly because of the cost, bearing in mind that Mrs Arshad‑Mather had initially prepared a two‑page presentation and after Mr Sarwar’s input the presentation was still only three pages long. Mr Taylor was by now concerned at the state of relations between Mrs Arshad‑Mather and the Claimant and was concerned as to how they worked together.
13. On 15 November 2009 the Claimant met with Mr Taylor, who was prepared to take action to make clear what the Claimant’s management roles were, but he also suggested that perhaps she might choose to leave one year early her employment with the Respondent on 31 March 2010 in return for the sum of £10,000. The Claimant’s response was she believed she had raised significant issues about governance, financial probity and controls, and that had led to a breach of the secondment agreement. At some point in time – and I have not been able to identify this from the papers – the Claimant ceased working and was placed on gardening leave.
14. She took advice from her line manager at the PCT and on about 17 November 2009 again raised matters with Ms Lowe and Mr Taylor. She was also at this point in time concerned about the continued funding for her own post. On 15 December 2009 the Claimant became most distressed when she attended a training event, during the course of which Mrs Arshad‑Mather was critical of her in public, so as to speak. On 16 December, the Claimant having emailed detailed information to the participants of the training day, a friend of Mrs Arshad‑Mather emailed a response with a number of questions, which the Claimant felt were sent to undermine her. The Claimant went on leave and had a minor operation. When she was on leave and thereafter when she was on gardening leave Mrs Arshad‑Mather, obviously with the consent of Mr Taylor, took it upon herself to carry out the Claimant’s work, in particular an exercise she was undertaking of identifying mentors and mentees and setting up a matching process. The Claimant considered that her position was being undermined and there was now a duplication of work. The Employment Tribunal considered that the issue arose because the panel was incurring expert advisors’ fees for work that the Claimant should have done in‑house without, of course, additional cost to the project. I have no doubt that Mrs Arshad‑Mather was remunerated for the work that the Claimant would otherwise have done.
15. On 6 January the Claimant met Ms Lowe and raised issues about Mrs Arshad‑Mather, who was to remain an expert advisor until the end of March 2010. The Employment Tribunal found that Ms Lowe told the Claimant she could not protect her from Mrs Arshad‑Mather and, in response to the Claimant asking what she should do because of her concerns and the fact that her working relationship with Mrs Arshad‑Mather appeared to have broken down, told the Claimant, she should either get on with it, go off sick, resign and seek a package, or just resign and go to the Employment Tribunal. The Claimant was unhappy at this response. She did not want to take sick leave; she felt that the resignation route was the most appropriate, and there was a discussion as to for what period she should be compensated. I think the Claimant might have been prepared to accept nine months pay, but the Respondent was only thinking of six months; but there is no doubt, and the Employment Tribunal concluded as such, that the Claimant felt she was being forced out.
16. Ms Lowe spoke to Mr Taylor and emailed her concerns that the Claimant was threatening Employment Tribunal proceedings because her term was being reduced from 2 years to 18 months, and Mrs Arshad‑Mather was undermining her and, I suppose colloquially, ganged up on her at an event in December. I draw attention to paragraphs 66 and 67 of the decision of the Employment Tribunal, which deal with the matters I have just recounted.
17. On 17 February 2010 the Respondent changed its tack, and the Claimant was told that unless terms had been agreed for her resignation by 1 March the Respondent would consider termination of her employment. Later she was told that unless the offer was accepted it would be withdrawn on 31 March and the Claimant would be expected to return to work with the Respondent.
18. On 29 March 2010, at a meeting of the NMWAG, the Claimant had reason to believe that Mrs Arshad‑Mather had been highly critical of her and had described her as someone who could not deliver, who was using for her own purposes being ill, and that she was now in litigation. It is difficult to know whether the Employment Tribunal accepted that this was so or not; we will come later in this Judgment to the manner in which this was dealt with by the Employment Tribunal, although we are rather minded to find that the Employment Tribunal did accept the Claimant’s evidence that Mrs Arshad‑Mather had behaved as described. The Claimant continued to complain that while she was on gardening leave Mrs Arshad‑Mather was delivering her work and continued to undermine her. She told the Respondent that unless she received a satisfactory offer she would resign effective on 9 April 2010 and she would report her concerns to the West Yorkshire Police, as she did.
19. On 9 April the Claimant learned that she could not return to the Bradford and Airedale PCT because the post had been “back‑filled” and a business case had been put up for her redundancy. Her resignation took effect, and it was only at that stage that the Respondent appointed an independent consultant, a Ms Jenny Bristoe, to investigate the Claimant’s allegations; this is set out in paragraph 80 of the decision of the Employment Tribunal. However, Ms Bristoe had no instructions to advise as to the propriety of the payments of which the payment had raised concern or the conduct of Mrs Arshad‑Mather and Mr Sarwar. The Claimant then became involved in the children’s area Monster Fun but has never drawn an income from this.
20. On 1 May, after interviewing the parties concerned, Ms Bristoe prepared a report. On 3 June the Bradford and Airedale PCT wrote to the Claimant to the effect that her appointment with the PCT had been terminated for redundancy as on 11 June 2010 and she was to receive a redundancy payment of £20,524, together with two months’ pay in lieu of notice and together with remuneration for her annual leave.
21. On 6 June the Respondent commissioned a report from Mazars LLP in relation to the expenditure of the Get Connected project. Similarly, they were not invited to deal with the proprieties of the conduct of which the Claimant complained. Mazars reported on 14 June that it had checked on the expenditure and they were satisfied the expenditure was supported by invoices, but they had not investigated the allegations of procedural and financial irregularities and recommended they should be reviewed by the management team.
22. On 21 June Mr Walmsley, who, as I have mentioned, was the Respondent’s Deputy Chief Executive, on the basis of information derived from Ms Bristoe, Mazars and Mr Ward exonerated Mr Sarwar and Mrs Arshad‑Mather. It might be said that the failures in relation to the lack of financial accountability and control, and the lack of prompt investigation into the propriety of payments, including payments for work that should have been done in-house to consultants, might be described as a whitewash, particularly because these matters were not referred to outside investigation. The Employment Tribunal, as I have already noted, was surprised at the failure to produce the original bid for funds, despite the Claimant’s attempts to secure this through the Freedom of Information Act.
23. The Claimant in due course commenced these proceedings, and after she had submitted a schedule of expenses the Respondent took it upon itself through its solicitors to send her a costs warning.
The decisions of the Employment Tribunal
24. I now turn to the decision of the Employment Tribunal on liability. It set out the facts, it defined the issues (see paragraph 5), and it then directed itself as to the law. Under section 230 of the Employment Rights Act (ERA) there was an issue whether the Claimant was an employee or a worker, and it was conceded that for the purposes of section 43K of the ERA she was a worker rather than an employee. The Employment Tribunal considered in relation to the question of whether the Claimant was an employee or not the case of Protectacoat Firth Glow Ltd v Szilagyi [2009] EWCA Civ 98, but it did not consider the more recent case of Autoclenz v Belcher & Others [2009] EWCA Civ 1046 nor did it consider the case of Jivraj v Hashwani [2001] UKSC 40, which may have been decided after the decision of the Employment Tribunal.
25. The Employment Tribunal directed itself by reference to section 47B of the ERA, and section 103A of the Act, dealing with protected disclosures, and other provisions relating to protected disclosures at sections 43A, 43B and 43C. It directed itself by reference to Cavendish Monroe Professional Risks Management Ltd v Geduld UKEAT/0195/09: that in order to be protected information had to be disclosed, as opposed to the making of allegations, and that the question of reasonable belief in those allegations by the Claimant was a matter for the Employment Tribunal. It also directed itself by reference to the significance of any failure to comply with ACAS directions that it had to be likely as opposed to a mere possibility, and it directed itself to cases such as Street v Derbyshire Unemployed Workers’ Centre [2004] IRLR 687 on the meaning of good faith, Bachnak v Emerging Markets Partnership (Europe) Ltd (No. 2) UKEAT/0288/05 and a passage from Harvey on Industrial Relations and Employment Law at D II paragraph 95.
26. It then made its conclusions. At paragraphs 107 and 108 it found that the Claimant was not an employee. It may well be that in the light of Belcher and Jivraj the Employment Tribunal could have dealt with the matter differently and found that the Claimant was; however, this matter was not raised in the Notice of Appeal, and the Employment Appeal Tribunal would not have allowed an amendment to be raised so late in the day. The Employment Tribunal accepted that matters raised by the Claimant in her February letter contained qualifying disclosures, her belief in them was a reasonable belief and they were made in good faith. However, subsequent disclosures may not have been within section 47 as they had not been made in the public interest because at a later stage in her dispute the Claimant was more concerned to secure an improved severance package.
27. The Employment Tribunal found that the Claimant had suffered detriments as a result of making protected disclosures; principally, the Respondent’s failure to investigate (see paragraphs 122 and 123 of the decision of the Employment Tribunal). At paragraph 124 the Employment Tribunal considered the conduct of Mrs Arshad‑Mather and in particular the comments alleged to have been made over the weekend of 27 and 28 March 2010:
“[…] the only direct evidence is the denial of Mrs Arshad‑Mather in relation to those comments. On the balance of probabilities the Tribunal is cannot be satisfied [sic] that they were made.”
28. It appears that the Employment Tribunal had drafted two possibilities. One was to find that it was satisfied and the other that it could not be satisfied that those comments were made, and it failed to elect which form its Judgment was to take. The matter is highly unsatisfactory, and the Respondent says this shows that the Employment Tribunal was not satisfied; the Claimant submits – and we are, although we do not decide the point, minded to agree – that it did decide they had been made. This is exactly the sort of case where upon reading the Judgment the Respondent, which was legally represented, should have gone straight back to the Employment Tribunal and asked it to clarify what it meant at the end of paragraph 124. I have drawn attention on a number of occasions previously as to the importance of advocates, when faced with what appears to be a mistake or an obvious omission, to go straight back to the Employment Tribunal rather than appealing on the matter to the Appeal Tribunal; I draw attention, for example, to the case of Bansi v Alpha Services [2007] ICR 308, in which I made that very point. Had the point been one that might have affected the decision we have taken we would have invited the comments of the Employment Tribunal.
29. The Employment Tribunal (see paragraph 126) was satisfied that giving the Claimant’s work to Mrs Arshad‑Mather was a detriment. It was not satisfied that placing her on gardening leave was a detriment, nor did they find that the correspondence after the meetings in January and the requirement for the Claimant to return to work amounted to a detriment; but, on the failure to investigate promptly the complaints by the Claimant, as the Employment Tribunal said at paragraph 133:
“The Tribunal is satisfied that the failure to investigate alone amounted to such a breach [that is, a breach of the implied term relating to trust and confidence]. The allocation of work to Mrs Arshad‑Mather on 23 December compounded it […].”
30. Of course, any breach of the implied term not to take actions likely or calculated to destroy or seriously damage the trust and confidence between the employer and employee constitutes a repudiatory breach.
31. The Employment Tribunal went on to find that the Claimant had not in any sense affirmed the contract. The reason for her resignation, as set out in paragraph 137, was because she had entirely lost faith in the Respondent, and the reported comments made by Mrs Arshad‑Mather were a final straw. However, the Employment Tribunal at paragraph 137 noted that the Claimant’s communications also made very clear that the earlier failures on the part of the Respondent, “put on hold during negotiations, were also reasons leading her to bring the employment to an end”, and the Employment Tribunal, “is therefore satisfied that she did bring the secondment to an end because of the breaches of that contract by the Respondent”. The Tribunal went on at paragraph 138:
“The contractual analysis in relation to the termination of the secondment agreement was adopted in the unusual circumstances of the Claimant not being in a position, due to her status as a worker, to bring an unfair dismissal claim, which would have required the same analysis but in the context of an employment contract. It was also the analysis discussed during the hearing. Having deliberated further on the statute and in particular bearing in mind the analysis required for section 47B claims, the Tribunal considered the following question as a straightforward comparison to its contractual analysis above: did the Respondent subject the Claimant to a detriment (the ending of her secondment agreement) on the ground that she had made a protected disclosure.”
32. The Employment Tribunal concluded, for the reasons to which I have already referred, and notwithstanding that the Claimant ultimately terminated the contract, that the Respondent had subjected the Claimant to the detriment by ending her secondment agreement. The Employment Tribunal rejected any bad faith on the part of the Claimant.
33. We now turn to the second decision of the Employment Tribunal, dealing with remedy. The Employment Tribunal here directed itself by reference to section 49 of the ERA, and section 48 for compensation. On the question of remedy it directed itself by reference to the decisions we will come to – Vento v Chief Constable of West Yorkshire Police [2002] EWCA Civ 1871 and Da’Bell v NSPCC [2010] IRLR 19 – and noted that detrimental action against whistleblowers should always be regarded as a very serious breach of discrimination legislation. The Employment Tribunal correctly directed itself that if the Claimant wishes to make a claim for aggravated damages, the burden of proof was on her to establish the grounds. It also noted authorities such as Ministry of Defence v Fletcher [2010] IRLR 25 and Zaiwalla & Co v Walia [2002] IRLR 697 as to the effect of the Respondent’s conduct in defending proceedings. The Employment Tribunal directed itself of the need to avoid an overlap between individual heads of damage. It concluded that there had been an unreasonable failure to comply with the ACAS Code within the meaning of section 207A of TULR(C)A, thereby opening the door for an uplift to the compensation.
34. The Employment Tribunal made additional findings. I draw attention to paragraphs 11‑13 as to the effect of the detriments upon her:
“11. The Claimant’s feelings in relation to the chain of events recorded in our liability Judgment and above were discussed in full at this Remedy Hearing. Her professional background in commissioning meant that she had experienced the need for financial sound judgment and probity in the management of public funds. The fact that her concerns were not investigated by the Respondent went right to the core of her professional experience. She had, in the past, resigned from one job on a matter of principle, having not been given time off to attend a funeral, but her employment at the PCT had been stable and she had done well. She had also been the subject of considerable investment (see our findings on leadership training). She was very distressed returning to work after Christmas 2009/10 seeing e‑mails from Mrs Arshad‑Mather and realising that her work had been done by Mrs Arshad‑Mather. She described feeling very, very humiliated by that and was very embarrassed and hurt. She described profound feelings of humiliation as one minute she was a Programme Director on a good salary and the next minute she had no job and was perceived as a problem. For any individual there was considerable humiliation in those circumstances, but the Claimant’s personal early background of considerable personal challenge and hardship made those circumstances even more painful. She was, however, initially relieved to be out of the Respondent organisation from January.
12. In April 2010, when Mr Taylor asked the Claimant to come back to work, the Claimant’s husband was angry that she would even consider it, having heard so much about the way that the Claimant had been treated over a number of months. The Claimant’s husband was sick of hearing about her treatment at the Respondent and the Claimant’s family, having not had the kind of career that the Claimant by this stage had established, did not necessarily understand the distress that she was experiencing. The Claimant’s background also gave her a particular desire to not be dependent financially on anyone else and, as a result of the actions of the Respondent, she felt that she was dependent on her husband. Again this was profoundly distressing for her.
13. Most significantly to her immediate future, the Claimant was unable to contemplate applying for another role with another employer. She felt self‑employment was her only option because, as she put it; ‘She could not put her life in the hands of another employer again’. The Tribunal accepted the Claimant was entirely genuine in that feeling and it is a measure of the degree of distress and impact on her of the Respondent’s actions. In some senses, this was a perfect storm of a Respondent failing to investigate and take seriously the Claimant’s concerns and beliefs about a lack of financial probity, against a background of a Claimant whose career to that date had been engaged in promoting exactly that: the appropriate commissioning and spending of public money.”
35. At paragraph 14 the Employment Tribunal noted that the Claimant was having counselling sessions in order to help her deal with the distress and depression that remained with her as a result of those events, and it referred to a report from a Professor Skinner that had been produced at very short notice for the hearing. The Tribunal was satisfied from the Claimant’s direct evidence that she was suffering ongoing symptoms of mental distress and that some of that distress was as a direct result of the detriments that she had suffered. The Employment Tribunal was not, however, prepared to go so far as to find that she was now suffering from post‑traumatic stress disorder or something similar as having been caused, on the balance of probabilities, by the acts and omissions of the Respondent.
36. The Employment Tribunal found that the early ending of the Claimant’s secondment was directly attributable to the Respondent’s failure to investigate her financial concerns and in the allocating of her work to Mrs Arshad‑Mather. The Employment Tribunal rejected a claim that the project would have continued beyond 1 April 2011 because there was no further funding, so the project would have come to an end anyway; see paragraph 17 of the decision. At paragraph 18 the Employment Tribunal assessed the Claimant’s chance of regaining a position with a PCT or a similar post from 1 April 2011 had her secondment not been prematurely terminated:
“The Tribunal has taken into account that there were a number of other circumstances which may have impacted on the likelihood of the Claimant returning to full‑time employment with the PCT or an equivalent employer from 1 April 2001, continuing until the time when she is advised she will recover a significant salary from Monster Fun. On balance, the Tribunal must tether its consideration of the future, had the detriments not occurred, in fact. The funding for the Project post ended in March 2011. The Claimant would have had significant extra experience and her skills had already had significant investment from the PCT. The Programme Director post had been a promotion for her aligned to leadership training. Non clinical posts at the PCT were in short supply and as a matter of industrial knowledge, the more senior, management posts were/are in even shorter supply. The Tribunal considers there would have been (absent the detriments above) a one third chance the Claimant would have regained a PCT or other post on a salary of £35,000 or more from 1 April 2011. We consider there would have been a two thirds’ chance of the Claimant being made redundant in any event at the end of March 2011. Or, putting things another way, we consider that one third of any of the Claimant’s losses after the end of the secondment are attributable to the Respondent’s actions, and two thirds are attributable to other factors, predominantly the likelihood of redundancy.”
37. The Employment Tribunal therefore concluded the Claimant, having lost the chance of extra experience and skills, had lost a one‑third chance of regaining a post in a PCT or a post earning approximately £35,000. The Employment Tribunal took account of the fact that there was a chance of redundancy in any event in March 2011.
38. The Employment Tribunal went on to say at paragraph 30:
“As to damages in respect of psychiatric injury, our findings above do not support a separate award. However, we have considered the justice and equity in making an award in respect of the injury to the Claimant’s feelings. Injury to feelings awards are designed to be compensatory and not punitive. Our findings above confirm that the Respondent’s actions had a devastating effect on the Claimant, her family, domestic, private and professional life, both at the time of the detriments suffered and on an ongoing basis. This is a very serious case. That impact has not been lessened at all by subsequent actions of the Respondent, neither by the very robust defence of the Claimant’s claims, nor in nor responding to her letter since the liability judgment. The Tribunal has decided that it is just and equitable to award £25,000 by way of injury to feelings, having regard to the Vento bands and the compensatory effect of such a sum on the Claimant’s ability to recover from that injury.”
Notice of Appeal and submissions in support
39. The first ground of appeal related to the Claimant’s resignation. The point was put initially in the Notice of Appeal that as the Claimant had explicitly resigned on the basis of Mrs Arshad‑Mather’s conduct over the weekend of 27 and 28 March 2010 and the Employment Tribunal were not satisfied that Mrs Arshad‑Mather had in fact made the comments attributed to her, it was incapable of amounting to a last straw. The Employment Tribunal drew to the attention of the parties of the decision of the Court of Appeal in Reinwood v Brown & Sons (No.2) 121 ConLR 1, in which Lloyd LJ had dealt with a similar point:
40. In the light of this authority, it is clear that if a Claimant is entitled to treat a contract as having been repudiated and has neither waived the breach nor agreed to a continuation of the contract in any event, the fact that the grounds given for a subsequent determination are mistaken, does not prevent the Claimant from relying upon the earlier repudiatory conduct, provided, of course, that it had not been waived and provided there had been no estoppel. In the light of this, the Respondent did not pursue ground 1 of its Notice of Appeal.
41. The second ground of appeal related to the remedy hearing. The Respondent challenged the finding of the Employment Tribunal that the Claimant’s secondment would have ended on 31 March 2011. The Respondent drew attention to the fact that the Bradford and Airedale PCT had told the Claimant at the time that her post had been back‑filled when she went on secondment, and that there was a recruitment freeze and there were no suitable jobs for her, so that redundancy was likely in any event. The Employment Tribunal fixed the chance of redundancy at two‑thirds and the chance of some form of continued employment at one‑third. It is said the Employment Tribunal was wrong because there was no evidential basis for the finding. Further, the secondment was for a fixed term, so there was no basis for finding that the secondment might have continued after the expiration of funding on 31 March 2011. The Employment Tribunal should have had greater regard to the redundancy, and the redundancy from the post at the PCT was to be regarded as a novus actus interveniens that broke the causative chain for any loss after 31 March. Any continuing loss should be calculated solely by reference to the unexpired period of the fixed‑term contract; that is, until 1 April 2011. Mr Lewis, during the course of submissions, asked counsel why the Employment Tribunal was not entitled to make the finding, and the response was there was simply no evidence to support it. Further, our attention was drawn to the fact that the Claimant initially was prepared to work for the Respondent, but this appears to have been only for a few days until she learned what Mrs Arshad‑Mather was supposed to have said.
42. There was an argument on the third ground of appeal that the Employment Tribunal was wrong to ignore the possibility of the Claimant having earnings having chosen to work for Monster Fun without pay. This was not pursued during the course of submissions by Mr Gorasia.
43. So far as the fourth ground of appeal is concerned, the submission of Mr Gorasia was that the Claimant was not entitled to rely upon an uplift under section 207A of TULR(C)A because this did not apply outside the case of employees. The Claimant was not an employee; she was a worker, and the terms of section 207A did not permit a claim for an uplift by her.
44. The fifth ground of appeal related to the £25,000 awarded by the Employment Tribunal for injury to feelings. Mr Gorasia submitted that the sum of £25,000 was excessive; the Claimant was only entitled to compensation in the middle band as set out in the Vento case as brought up to date in the Da’Bell case. The award of £25,000 was perversely excessive, and it was a matter of law rather than a question of fact as to which of the two bands the award should have been. He submitted that the purpose of the award in this case was not to compensate the Claimant but to punish the Respondent. He drew attention to a number of authorities culled from Harvey; these are conveniently and helpfully set out in his skeleton argument at paragraph 32. He suggested that the appropriate bracket for the injury to feelings was between £10,000 and £15,000.
45. So far as the Claimant’s case is concerned, we will only deal briefly with the submissions in relation to those grounds of appeal that were pursued. In relation to the question of whether the Claimant would have achieved longer employment beyond the date for termination of her secondment agreement, it was submitted that the award should be just and equitable. The Employment Tribunal, it was submitted, is not bound by common-law principles of foreseeability and of remoteness, and our attention was drawn to the case of Leonard v Strathclyde Buses [1998] IRLR 693. Future loss has to be decided by reference to how long it was likely that the employee obtained further employment, and our attention was drawn to the case of Courtaulds Northern Spinning Ltd v Moosa [1984] IRLR 43. Further, our attention was drawn to the authorities on how future loss based on a loss of chance should be calculated. Our attention was drawn to the Judgment of Mummery LJ in Vento, and the Court of Appeal in that case asked the question:
“[…] what were the chances, if Ms Vento had not been discriminated against and dismissed, of her remaining in the police force until the age of retirement at 55? […] The question requires a forecast to be made about the course of future events. It has to be answered on the basis of the best assessment that can be made on the relevant material available to the court. That includes statistical material, such as that produced to the tribunal showing the percentage of women who have in the past continued to serve in the police force until the age of retirement.”
46. The Employment Tribunal was not required to be satisfied that the future event would occur or was probable; the Claimant only has to show that by reason of the defendant’s default he or she had lost all reasonable chance of employment, which would have to be evaluated. We will return to the law later, but we mention that so the Claimant’s submissions can be understood.
47. The Employment Tribunal found that the Claimant had at all times acted reasonably; see the decision of the Employment Tribunal, paragraphs 12‑13 and 16‑18. Our attention was also drawn to the importance of the fact that the Employment Tribunal had received the oral evidence, and our attention was drawn to RSPB v Croucher [1984] ICR 604, referred to in paragraph 15 of the skeleton argument of the Claimant, and the well‑known passage in the Judgment of Waite J at page 609 to the effect that:
“We have to remind ourselves also of the important principle that decisions are not to be scrutinised closely word by word, line by line, and that for clarity’s and brevity’s sake Industrial Tribunals are not to be expected to set out every factor and every piece of evidence that has weighed with them before reaching their decision. So it is for us to recall that what is out of sight in the language of a decision is not to be presumed necessarily to have been out of mind. It is our duty to assume in an Industrial Tribunal’s favour that all the relevant evidence and all the relevant factors were in their minds, whether express reference to that appears in their final decision or not; and that has been well established by the decisions of the Court of Appeal in the Retarded Children’s Aid Society v Day [1978] IRLR 128.”
48. Our attention was also drawn to the well‑known authority of Scope v Thornett [2006] EWCA Civ 1600 as to the approach of the Employment Tribunals to determining the loss of a chance. The Claimant finally submitted that redundancy did not break the chain of causation, because if she had not been dismissed, she would have remained in post and have had further experience and qualifications that would have enhanced her prospects of finding a new post with the PCT.
The law
49. We have already drawn attention to paragraph 51 of the Judgment in Reinwood, but as the first ground of appeal has now been withdrawn we do not need to say anything further about that case, but again, in relation to general approach to this appeal, which largely rests on perversity, we refer to the well‑known passage of Mummery LJ in Yeboah v Crofton [2002] IRLR 634 at paragraph 93, in relation to perversity appeals:
“Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has grave doubts about the decision of the Employment Tribunal, it must proceed with great care […].”
50. We also refer to the decision in ASLEF v Brady [2006] IRLR 576, a decision of Elias J, as he then was (paragraph 55):
51. We now turn to deal with the claim in relation to uplift, and in this regard we draw attention to paragraph 207A(1) and (2) of TULR(C)A:
“(1) This section applies to proceedings before an employment tribunal relating to a claim by an employee under any of the jurisdictions listed in Schedule A2.
(2) If, in the case of proceedings to which this section applies, it appears to the employment tribunal that—
(a) the claim to which the proceedings relate concerns a matter to which a relevant Code of Practice applies,
(b) the employer has failed to comply with that Code in relation to that matter, and
(c) that failure was unreasonable,
the employment tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.”
52. And section 295:
“[…] employee means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment […].”
53. So far as future loss is concerned, we have found it very helpful to have regard to the Judgment of Elias J, as he was, in the case of Software 2000 Ltd v Andrews [2007] IRLR 568:
“54. The following principles emerge from these cases:
(1) In assessing compensation the task of the Tribunal is to assess the loss flowing from the dismissal, using its common sense, experience and sense of justice. In the normal case that requires it to assess for how long the employee would have been employed but for the dismissal.
(2) If the employer seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, it is for him to adduce any relevant evidence on which he wishes to rely. However, the Tribunal must have regard to all the evidence when making that assessment, including any evidence from the employee himself. (He might, for example, have given evidence that he had intended to retire in the near future.)
(3) However, there will be circumstances where the nature of the evidence which the employer wishes to adduce, or on which he seeks to rely, is so unreliable that the tribunal may take the view that the whole exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on that evidence can properly be made.
(4) Whether that is the position is a matter of impression and judgment for the Tribunal. But in reaching that decision the Tribunal must direct itself properly. It must recognise that it should have regard to any material and reliable evidence which might assist it in fixing just compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence.
(5) An appellate court must be wary about interfering with the Tribunal's assessment that the exercise is too speculative. However, it must interfere if the Tribunal has not directed itself properly and has taken too narrow a view of its role.
(6) The s.98A(2) and Polkey [v A E Dayton Services Ltd [1987] IRLR 503] exercises run in parallel and will often involve consideration of the same evidence, but they must not be conflated. It follows that even if a Tribunal considers that some of the evidence or potential evidence to be too speculative to form any sensible view as to whether dismissal would have occurred on the balance of probabilities, it must nevertheless take into account any evidence on which it considers it can properly rely and from which it could in principle conclude that the employment may have come to an end when it did, or alternatively would not have continued indefinitely.
(7) Having considered the evidence, the Tribunal may determine
(a) That if fair procedures had been complied with, the employer has satisfied it – the onus being firmly on the employer – that on the balance of probabilities the dismissal would have occurred when it did in any event. The dismissal is then fair by virtue of s.98A(2).
(b) That there was a chance of dismissal but less than 50%, in which case compensation should be reduced accordingly.
(c) That employment would have continued but only for a limited fixed period. The evidence demonstrating that may be wholly unrelated to the circumstances relating to the dismissal itself, as in the O'Donoghue [v Redcar & Cleveland Borough Council [2001] IRLR 615] case.
(d) Employment would have continued indefinitely.
However, this last finding should be reached only where the evidence that it might have been terminated earlier is so scant that it can effectively be ignored.”
54. We consider that assistance may be derived from Elias J’s approach in other cases where the court is required, to some extent, to speculate as to future loss, such as cases involving a Polkey reduction. As Buxton LJ observed in Gover and Ors v Propertycare Ltd [2006] EWCA Civ 286, [2006] 4 All ER 69, a case that also involved an element of speculation, the fact that an issue was a matter of impression and judgment for the Tribunal:
“[…] indicates very strongly that an appellate court should tread very warily when it is being asked to substitute its own impression and judgement for that of the tribunal.”
55. Elias J at para 44 referred further to the judgment of Buxton LJ
“He also observed that the Polkey approach - assessing what would have happened had the dismissal been fair - was wholly consistent with the principle of assessing loss flowing from the dismissal on a just and equitable basis, which is the principle underlying section 123. These should be approached as “a matter for the common sense, practical experience and sense of justice of the Employment Tribunal sitting as an industrial jury” (para 14). He also approved the way in which HH Judge McMullen QC had described the process in the EAT in that case (para 26) where the judge had said that the Employment Tribunal’s task was “to construct, from evidence not speculation, a framework which is a working hypothesis about what would have occurred had the [employer] behaved differently and fairly.”
56. We have also had regard to the guidance in Scope v Thornett [2007] ICR 136 and in Leonard v Strathclyde Buses [1998] IRLR 693, and we quote from the headnote of the latter:
“An employment tribunal has to apply the statutory test for assessing a compensatory award as a whole and assess what is just and equitable having regard to the loss so far as attributable to the employer. The extent to which the tribunal can have regard to what followed after dismissal is primarily a matter for it to assess on the particular facts. To introduce principles of foreseeability or remoteness in the technical sense in which those concepts apply in other legal contexts is inconsistent with the discretionary approach which has governed the assessment of unfair dismissal compensation ever since Norton Tool Co (No. 2) v Tewson [1972] IRLR 86.”
57. We now turn to the authorities on the quantum of compensation for injury to feelings. The leading authority, of course, is Vento, where guidance was given by Mummery LJ. Mummery LJ suggested there should be three bands of compensation. The first band should normally be between £15,000 and £25,000; £25,000 has since been updated by the case of Da’Bell to £30,000. The first band:
“65(i) […] should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the grounds of sex or race. […] Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.”
58. The middle band, between £5,000 and £15,000, increased by the Da’Bell case to £18,000, “should be used for serious cases which do not merit an award in the highest band”; and then, finally, there is a band for less serious cases of between £500 and £5,000, increased by Da’Bell to £6,000, “such as cases where the act of discrimination is an isolated or one off occurrence”. Mummery LJ, however, went on to say this:
“There is of course within each band considerable flexibility, allowing tribunals what is considered to be fair, reasonable and just compensation in the particular circumstances of the case.”
59. It is also to be noted: firstly, that these are guidelines, and it may be proper in circumstances to depart from them; and secondly, although the figures were updated by Da’Bell, that decision is now itself two‑and‑a‑half years old, and inflation has continued to march on, so they may need to be revised upwards again.
Conclusions
60. So far as resignation is concerned, we need not deal with this matter. We now turn to deal with the issue of continuing employment. We are satisfied the Employment Tribunal directed itself correctly as to the law and in particular to the need for future loss to be tethered to some evidence before the Employment Tribunal. In our opinion, the Employment Tribunal was entitled on the material before it to conclude that there was a one‑third possibility of the Claimant being in employment after April 2011, even if this employment would not be at the Respondent, because the Employment Tribunal accepted that funding would not have continued beyond April 2011. Had the Claimant served out her full term at the Respondent to the end of March 2011, it is likely that she would have achieved greater skills and experience and would have been better able to compete in the job market. Also, her original post had been back‑filled in the expectation that she would not be returning to the PCT until April 2011; there would therefore have been a greater chance of her being offered further employment.
61. We refer to paragraph 18, again, of the decision of the Employment Tribunal on remedy, and it is clear that the Employment Tribunal was relying, as it was entitled to do, on its industrial knowledge and was entitled to conclude that the Claimant’s position would have been enhanced as she would have had significant extra skills and experience. In our opinion, the Employment Tribunal made a sensible prediction on the evidence and was entitled, if not bound, to consider the likelihood of future employment on the available evidence. That was, to some extent, a matter of impression and judgment, but that was for the Employment Tribunal, and its judgment should be respected. The mere fact that an element of speculation was involved was not a reason for refusing to have regard to the evidence. The Employment Tribunal followed the guidance of Elias J in Andrews; as he observed, “a degree of uncertainty is an inevitable feature in the exercise of determining future loss”.
62. The Employment Tribunal was entitled to have regard, as we have said, to its industrial knowledge of the industrial jury, and, as this was a matter of impression and judgment of the Employment Tribunal, we, the Appeal Tribunal, should tread very warily when we are asked to substitute our own impression and judgment for that of the Employment Tribunal. We see no reason why the continuing loss should have been calculated by reference to the unexpired period of the fixed‑term secondment. The Employment Tribunal was entitled to conclude on the evidence that the loss would have extended beyond this. We have taken account of the fact that for a few days, and no more, the Claimant appears to have been prepared to return to her work for the Respondent, but in the circumstances this does not impact on her loss. We are unable to see how the redundancy at the PCT could in any sense be regarded as a novus actus.
63. We do not deal with the issue of mitigation, as it has not been pursued. So far as the uplift is concerned, we have this to say. Although detriment suffered by whistleblowers in making protected disclosures is regarded as a form of discrimination, employment law does not always follow a logical course, even though in other cases of remedies for discrimination these uplifts are made available to both employees and workers. However, it is clear that so far as concerns section 207A, on the effect of a failure to comply with the ACAS Code, only employees, as opposed to workers, can take advantage of a remedy offered by section 207A. While we are minded to accept that the Respondent was obliged to comply with the ACAS Code, regarding its finding that the Claimant in her capacity only as a worker was not entitled to claim the uplift provided by section 207A, to that extent the appeal on this ground will be allowed.
64. So far as injury to feelings is concerned, we are satisfied that the decision of the Employment Tribunal is far from perverse and the Employment Tribunal was entitled to find that it was within the upper bracket of Vento. We reject the suggestion that the purpose of the award in this case was not to compensate the Claimant but to punish the Respondent; this is quite inconsistent with the explicit approach of the Employment Tribunal at paragraph 30 of the remedy decision. We have not found very much assistance from the reports referred to in Harvey to which our attention was drawn by Mr Gorasia. The Employment Tribunal was entitled to have regard to the most significant distress to the Claimant that her concerns were ignored by the Respondent; these went to the core of her professional experience, and in this regard we again draw attention to what the Employment Tribunal had to say in its remedy Judgment at paragraphs 11 and 13: that the Claimant had been so affected she was unable to contemplate applying for another role with another employer:
“The Tribunal accepted the Claimant was entirely genuine in that feeling and it is a measure of the degree of distress and impact on her of the Respondent’s actions. In some senses, this was a perfect storm of a Respondent failing to investigate and take seriously the Claimant’s concerns and beliefs about a lack of financial probity, against a background of a Claimant whose career to that date had been engaged in promoting exactly that: the appropriate commissioning and spending of public money.”
65. We also draw attention to what the Employment Tribunal had said at paragraph 14, and in particular the Claimant’s evidence that she was suffering ongoing symptoms of mental distress, some of which was the result of her treatment by the Respondent. The Employment Tribunal correctly directed itself that detrimental action taken against whistleblowers should always be regarded as a very serious breach of discrimination legislation (see paragraph 6.4).
66. Finally, we would say this: the appeal will be allowed solely in relation to the question of the 25 per cent uplift, and the order of the Employment Tribunal will be varied accordingly. We would again commend Mr Gorasia for his most helpful skeleton argument; we do not know who prepared the Claimant’s skeleton argument, because she instructed a member of the Bar and we have not been told who it was, but it, again, is of very high quality. The skeleton arguments are succinct yet detailed, and we have found them most helpful.