United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0210/14/JOJ

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 27 November 2015

 

 

 

Before

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

(SITTING ALONE)

 

 

 

 

 

 

MR D BECKFORD                                                                                                  APPELLANT

 

 

 

 

 

LONDON BOROUGH OF SOUTHWARK                                                       RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

APPEAL & CROSS-APPEAL

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	No appearance or representation by or on behalf of the Appellant
For the Respondent	MISS HEATHER PLATT (of Counsel) Instructed by: London Borough of Southwark Legal Services, 2nd Floor PO Box 64529 Tooley Street London SE1P 5LX

 

 

SUMMARY

DISABILITY DISCRIMINATION

DISABILITY DISCRIMINATION - Compensation

 

The Employment Tribunal held unfairly dismissed for capability because the Respondent had not considered suitable alternative employment by asking what the Claimant could do if reasonable adjustments were first made to a possible alternative post.  Appeal by the Claimant on this ground rejected - (a) the Employment Tribunal had dealt with the point sufficiently, and (b) in any event it had not been argued as such.

 

A cross-appeal on the ground that the Employment Tribunal was wrong to uplift damages for injury to feelings by 10% (in accordance with Simmons v Castle) was dismissed.  Doubt was expressed as to the correctness of De Souza v Vinci Construction UK Limited UKEAT/ 0328/14/DXA.

 

THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)

 

1.                  This is an appeal and a cross-appeal, both of which arise out of a Remedies Decision made by an Employment Tribunal at London (South) (Employment Judge Elliott, Ms Williams and Ms Campbell) for Reasons given on 14 February 2014.  I shall call this the Remedy Judgment.  There were other Judgments of relevance.  The first of those was the Liability Judgment, as I shall call it, of 27 November 2013 made by the same Tribunal.

 

The Facts

2.                  The underlying facts were that the Claimant is dyslexic.  He had been employed in the Early Engagement Team as a social worker by the defendant borough.  After satisfactorily discharging his duties for some years, there was a change of structure in the borough.  In consequence, he was now employed in the Young Offenders Service.  Here he struggled to cope.  The Tribunal found that he was not capable of performing the duties of his post in that service. 

 

3.                  He complained of a number of matters.  The Tribunal held that his complaint of unfair dismissal and one of disability discrimination consisting of the failure to make reasonable adjustments, as well as a claim for victimisation, should succeed but all his other claims had to be dismissed. 

 

4.                  The basis upon which the Tribunal found in his favour was sufficiently summarised in its conclusions in the Liability Judgment beginning at paragraph 129:

“129. In summary we find that the claim for unfair dismissal succeeds because of the failure to consider whether there was any suitable alternative employment for the Claimant.

130. The claim for disability discrimination succeeds in relation to the duty to make reasonable adjustments in relation to the dismissal.  This is because there was no consideration of whether the Claimant could be transferred to fill an existing vacancy across the organisation or whether he could be assigned to a different place of work.  The claim in relation to the other reasonable adjustments contended for by the Claimant fails for the reasons given above.

131. The claim for harassment fails. …

132. The claim for victimisation succeeds as the Respondent has not explained why they failed to reply to the Claimant’s emails concerning the resolution of his grievance, in which he made a complaint of disability discrimination.”

 

5.                  Two comments.  First, the failure to provide suitable alternative employment was a conclusion the Tribunal reached in part because it thought that a very large employer, such as the borough, would have had some alternative work which the Claimant could have done, in particular noting that he had managed for some years before he started work in the Young Offenders Service.  Second, the claim in respect of failure to make reasonable adjustments succeeded not upon the basis that there was actually an adjustment which might be made, but which was not made, but because there was no consideration of it.  There has been no appeal against that finding by the Respondent.  However, it is worth noting that this is not a conclusion that there was some reasonable adjustment which could have been made which would have alleviated the effects of his dyslexia.

 

6.                  The Remedies Hearing proceeded upon the basis that the Claimant should be compensated for unfair dismissal by a basic award and a compensatory award upon the footing that he had not failed to mitigate his loss up to the date of the hearing before the Tribunal.  The borough had conceded that.  In addition, there was a loss of statutory rights and a pension loss in a four-figure sum.  All of those sums were to be reduced because of the likelihood of the Respondent having been unable to find any suitable alternative employment for the Claimant and, therefore, dismissing him.  Though a 90% deduction was contended for, the Tribunal, in the end, decided on 75%. 

 

7.                  As to the award in respect of the effects of the discrimination, the Tribunal awarded £4,000 for injury to feelings, which it increased by £400 “under Simmons v Castle” [2012] EWCA Civ 1288.  At the time the Tribunal made that decision, there had not been the extensive canvassing on appeal before this Tribunal of what has become known as the “Simmons v Castle point”. 

 

8.                  The Claimant asked for a reconsideration on a number of grounds.  The Tribunal considered those and confirmed its original findings.

 

9.                  He appealed.  A number of hearings followed, in one of which HHJ Serota dismissed every ground of appeal.  Judge Serota accepted an invitation to reconsider that decision.  He was persuaded that he might have dismissed one ground a little too readily.  That was the first ground in the Notice of Appeal.  It was, as follows:

“The Employment Tribunal erred in law in failing to have regards to reengagement in considering the Claimant’s disability in respect of points 25 - 32 of the Reserved Judgment on Remedies dated 14^th February2014, in relation to the Employment Rights Act 1996, Sec 98 General, subsection F2(3), F3(4).”

 

It then set out section 98, subsections 1 and 2, together with the notes, which derive from a well known textbook, labelled “F2” and “F3”.

 

10.              I have understood this ground to be that the Tribunal erred in failing to have regard to the Claimant’s disability in considering re-engagement.  It is his contention, as Judge Serota identified it, that when he asked for but was refused re-engagement the Tribunal did not ask, as it might have done, whether a reasonable adjustment might be made to a possible post such as would have enabled the Claimant to perform it, so that he could be re-engaged in that post.  Although he has labelled the Remedy “reinstatement”, what he had in mind was plainly re-engagement.  Section 115(1) of the Employment Rights Act 1996 provides:

“(1) An order for re-engagement is an order, on such terms as the tribunal may decide, that the complainant be engaged by the employer, or by a successor of the employer … in employment comparable to that from which he was dismissed or other suitable employment.”

 

11.              Such an order is to be considered in accordance with the process set out in section 116, headed “Choice of order and its terms”.  It reads:

“(1) In exercising its discretion under section 113 [that is the discretion to make an order for reinstatement or reengagement] the tribunal shall first consider whether to make an order for reinstatement …

(2) If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and, if so, on what terms.

(3) In so doing the tribunal shall take into account -

(a) any wish expressed by the complainant as to the nature of the order to be made,

(b) whether it is practicable for the employer … to comply with an order for re-engagement, and

(c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and (if so) on what terms.”

 

12.              The Tribunal had considered that the Claimant had difficulty in arriving for work or appointments on time.  It was in large part that which had resulted in the capability hearing, which resulted in his dismissal (see the Liability Decision).  There was no suggestion in any of the papers which I have seen that the Claimant was arguing before the Tribunal that his difficulty in timekeeping, and therefore difficulty making meetings with members of the public in a public-facing role were an effect of his condition of dyslexia.  He has produced such material for consideration on appeal but there is no trace of it having been advanced before the Tribunal. 

 

13.              Mr Beckford is not present to advance his appeal today.  There should be no criticism of him for this.  He is unable to attend - it is unnecessary for me to set out the reasons, which he has explained to this Tribunal - but he has invited this Tribunal to proceed upon the basis of the written material, which it has.  I have considered all that he has written.  I will not refer to all of it.  He should not think that because I have failed to do so, I have omitted it or have not considered it. 

 

14.              Miss Platt, who did appear below, whose straightforwardness and frankness was lauded by Judge Serota during his Judgment in the Preliminary Hearing (and I can well see why, given her submissions before me today) tells me that the matter was not raised before the Employment Tribunal.  It was not advanced on reconsideration either that the disability had this effect, or that when the employer came to consider whether there was suitable alternative employment, it should have had to factor in whether any employment which appeared on the face of it unsuitable could be made suitable by a reasonable adjustment. 

 

15.              She fully accepts the principles which Underhill J set out in the case of Great Ormond Street Hospital for Children NHS Trust v Patel UKEAT/0085/07/LA, a case which her own researches has produced.  That provides, in terms which might be thought to favour the point made on the appeal, if it had been raised by the Claimant, first, that practicability was to be assessed as at the date that any order would take effect - those last three words might be important - (paragraph 18) - and at paragraph 20 that the Appeal Tribunal could see no reason why the Tribunal should not have to take the question of reasonable adjustment into account in considering practicability, commenting in the last four lines of paragraph 20:

“20. … if it would be impracticable to offer the employee the selfsame job that they had previously had, it might nevertheless be practicable to offer them the modified job which they would have been entitled to be offered if the employment had continued.”

 

16.          At paragraph 23 the Tribunal’s view was that:

“23. … in the case of a disabled employee the s.4 A duty [that is the duty arising under the Disability Discrimination Act, which was the statute in force at the time] must be brought into account …”

Commenting that:

“… there is a big difference between requiring a Trust to make a temporary adjustment in order to accommodate a valued employee who it is hoped will eventually be fit to resume to duty and requiring it to create what on all the evidence was an anomalous role on a permanent basis. …”

 

17.              Much of the reasoning is that specific to the facts of the case itself, but I would accept that particularly in a jurisdiction which seeks to remove barriers to access to employment for those who suffer from many and various disabilities, the question of suitable alternative employment arising on a dismissal, albeit for incapability, should take account in general of whether a reasonable adjustment can be made. 

 

18.              The Tribunal in dealing with the question of re-engagement in the light of the statutory provisions that I have set out, though unaware of the Great Ormond Street case which had not been put before it, said this:

“25. In relation to the question of reengagement, the Respondent produced a list of 8 current job vacancies.  The Claimant said he was not interested in any which were part time and we informed the parties that we would not make an order for reengagement in a more senior role.  This left only 2 roles for consideration.  These were a Sustain Officer and a Contracts and Service Officer (Sports). …”

 

19.              The Tribunal went on after that to examine those two roles.  It concluded that there were essential criteria which any applicant for those posts had to meet.  The Claimant acknowledged he did not meet them.  It follows that as at the date of the hearing, on evidence which the Tribunal appeared to accept, there was no vacancy within the London Borough of Southwark for the Claimant to occupy for which he was suitable.  The lack of suitability referred to had no relation to his disability.

 

20.              That, it seems to me, still left open to some extent the basis upon which the Tribunal had, in the first place, thought that there may have been a failure to consider suitable alternative employment.  That was that the borough was so large and employed so many staff that, in effect, there must be some job somewhere which it could offer him.  As to that, the words which followed the findings I have just referred to at paragraph 32 may be relevant.  The Tribunal said:

“32. … We have found (paragraph 83 of the liability judgment) that the Claimant was not capable of doing the job for which he was employed by the Respondent.  We accepted the Respondent’s evidence that the Claimant’s difficulties in arriving for work or appointments on time created a real difficulty in placing him in a role which required punctuality and/or the meeting of deadlines.  This is particularly so in roles where meetings with service users was concerned.  We find that it is not practicable for the Respondent to re-engage the Claimant in a role that is as favourable as the post which he held prior to his dismissal and the application for re-engagement fails.”

 

21.              That paragraph is open to the criticism that the Tribunal did not expressly deal with any impact which the duty to make reasonable adjustments might have in reference to a post which would otherwise be suitable for the Claimant.  Miss Platt frankly accepts that it did not do so in terms, but she says that is the thrust of that which the Tribunal was saying.  Very few of the jobs of a council would not involve meetings with service users so far as people in a social work capacity were concerned.  There had been no suggestion at this stage that the failure to arrive for work or make appointments on time was a consequence of the Claimant’s disability.  It was for that reason that the Tribunal excluded him.  The Tribunal at paragraph 32 explored matters which plainly went beyond a simple examination of the eight posts which might have been available, none of which were suitable.  It was looking more generally at the Claimant’s suitability for other posts which might, given the size of the Respondent, have been available.  I accept that that is the context in which these words are spoken.

 

22.              The conclusion is unexceptional.  It does not in itself require a particular examination of a reasonable adjustment especially in the absence of any particular post being identified for consideration.  The Claimant himself did not advance any.  It seems to me, therefore, that HHJ Serota at paragraph 6 of his Judgment on reconsideration was right to say that the argument on appeal appeared to have taken on a different complexion to that which was advanced before the Employment Tribunal.  It is difficult, in my view, for many who are litigating for themselves to articulate their real complaint within an appropriate legal framework.  That does not, however, prevent them articulating what they are really complaining about.  The Claimant was an educated man, as is obvious from the job he did and the way he writes.  He was capable of providing lengthy submissions and did so.  Miss Platt points out that there is no suggestion in those submissions at any stage prior to the appeal itself that the disability may have affected what he was really capable of in a re-engaged role.  The argument simply was not put.

 

23.              It seems to me, therefore, that given there was an absence of focused argument about this, although it was open to the Claimant to make the complaint, had he wished to do so, in sufficient terms so as to raise it.  The way in which the Tribunal dealt with the matter between paragraphs 25 and 32 was thus a sufficient exercise of its duties and was a sufficient explanation for its decision.  It is not an error of law to fail to deal with an argument which is not raised.  There was no argument directed along the lines of the appeal point as, indeed, HHJ Serota hinted.  The finding is a finding of fact.  It was not perverse on the material before the Tribunal, nor, having taken into account everything which was said at the time, do I think it can be said to have been reached in absence of considering points being raised by the Claimant.  Though in my view a Tribunal would be well-advised in dealing with questions of suitable alternative employment, for those whose disability may in part be responsible for a lack of capability in one job, to consider whether reasonable adjustments might make it possible to work in an alternative post.  In this particular case it did not, in my view, have to do so and so did not make an error of law.  I, therefore, dismiss the appeal.

 

 

The Cross-Appeal

24.              The cross-appeal argues that the Tribunal should not have uplifted the damages award for injury to feelings by 10% of £4,000, namely £400.  Though the sum is small, the principle is important.  It may at the moment be subject to an appeal in the case of Pereira De Souza v Vinci Construction UK Limited UKEAT/0328/14/DXA (20 March 2015), a Judgment of HHJ Serota.  The hearing of the appeal is currently scheduled for 7 December. 

 

25.              In his Judgment, HHJ Serota thought there should be no uplift.  In doing so, he departed from a Judgment to opposite effect which had been made by Simler J in the case of Sash Windows Workshop v King [2015] IRLR 348.  An appeal in that case is due, according to the Court of Appeal website, to be heard in February next year.  The two cases examine the question of whether the principles expressed in, and the decision of, Simmons v Castle should apply in the Employment Tribunal.  Miss Platt’s argument is heavily based upon the decision of HHJ Serota being correct.  Since HHJ Serota’s decision is the latest appeal at this level, and since it considered earlier decisions, it is a decision from which I would depart only with the greatest of hesitation.  I am not bound by it, but I should (particularly in such circumstances) follow it unless persuaded it is in error.

 

26.              What has ultimately persuaded me to express my views on this and add, I suspect entirely unnecessarily to “the learning” given the forthcoming Court of Appeal hearing, is that I have to make a decision on the present case.  If I were on the basis of comity to accept the authority of De Souza whilst thinking it was probably in error, without necessarily being convinced that that is so, then there would be little prospect of this Appellant pursuing an appeal for £400 to the Court of Appeal.  I, therefore, concluded that if that is my view, I should express it and I should hold against the cross-appeal and dismiss it, but provide that that decision would be open for reconsideration, or review as it is called in this court, until 21 days following any decision of the Court of Appeal.  It seems to be far more likely that in those circumstances whatever the Court of Appeal holds will actually apply between the parties in the present circumstances of this case.

 

27.              That then leads me to the question whether I do take a view which is in line with that expressed by Simler J but not that expressed by HHJ Serota.  I do. I confess that I do so without being so convinced that I am right that I would, in any event, have adopted this approach had it not been for the practical considerations expressed in the last paragraph above.  However, for what it is worth, I shall express my views. 

 

28.              First, the starting point in any statutory jurisdiction, as this is, is the statute.  The Equality Act 2010 provides, in similar terms to its predecessors, for the enforcement of the breaches to which it relates in Part 9.  In chapter 3 of that Part, the Act provides at section 124(6):

“(6) The amount of compensation which may be awarded under subsection (2)(b) [that is the subsection which permits a Tribunal to order the Respondent to pay compensation to the complainant] corresponds to the amount which could be awarded by the county court or the sheriff under section 119.”

 

Section 119 relates to damages.  It provides at 119(4):

“(4) An award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis).”

 

Therefore, it is a starting point accepted by Miss Platt that the same approach in general terms should be taken to an award of damages made by a Tribunal as it would be in the county court. 

 

29.              In Simmons v Castle [2012] EWCA Civ 1039 the Lord Chief Justice of England and Wales gave the judgment of the whole court, consisting also of the Master of the Rolls and the Vice President of the Court of Appeal.  At paragraph 2 he described how the court would take an appropriate opportunity to “announce an increase in general damages in most tort actions with effect from 1 April 2013”.  He added at paragraph 14:

“14. Secondly, the increase in general damages we are laying down here extends to tort claims other than personal injury actions.  We cannot see any good reason why the observations and reasoning in Heil [that being a reference to Heil v Rankin [2000] EWCA Civ 84, [2001] QB 272], and in the cases cited by Lord Woolf MR in his judgment in that case, do not apply equally to general damages in all tort cases.”

 

30.              At paragraph 20 the court took the opportunity to declare that:

“20. … with effect from 1 April 2013, the proper level of general damages for (i) pain, suffering and loss of amenity in respect of personal injury, (ii) nuisance, (iii) defamation and (iv) all other torts which cause suffering, inconvenience or distress to individuals, will be 10% higher than previously. …”

 

These are general words covering all tort claims, whether or not they were in respect of personal injury, the area most affected by the CFA and ATE recovery scheme.  It is accepted by Miss Platt that a claim for damages for discrimination is a claim under a statutory tort.  On the face of it, therefore, the reasoning applies to such a claim.  Moreover, it is not expressly limited to claims which before 1 April 2013 would have been funded by a CFA.

 

31.              In his consideration, which is careful, and reserved as this decision is not, HHJ Serota did not refer directly to the statute as I have done, nor did he cite specifically these expressions of general applicability which the Court of Appeal had set out.  Those were the matters which, as it seems to me, persuaded Simler J in Sash Window Workshop v King that the 10% uplift, for which Simmons v Castle provided should apply in Employment Tribunals.  It seems to me that HHJ Serota may well be right that the argument addressed to her was different from the argument addressed to him, and that the only other authority before then in the Appeal Tribunal - that of Cadogan Hotels v Ozog UKEAT/0001/14/DM - was one in which HHJ Eady did not address the point with any reasoning, though instinctively taking the same view as Simler J.

 

32.              To complete the picture, Slade J in the case of Chawla v Hewlett Packard (25 February 2015) UKEAT/0280/13/BA and UKEAT/0427/13/BA, said in what is probably an obiter but nonetheless plainly considered view that she preferred the view expressed by HHJ Serota to that expressed by Simler J. 

 

33.              The basis for the approach which HHJ Serota took was that the rationale, as he put it, for the increase of 10% across the board was because successful Claimants had until the implementation of Sir Rupert Jackson’s report had a right to have refunded to them the amount of any success fee they would have to pay in consequence of their success and any premium in respect of any after-the-event insurance contract which they had entered into in order to bring the claim.  Those reasons did not apply to the Employment Tribunal.

 

34.              Miss Platt takes eight points from De Souza.  She formulated these after I rose to enable her to deal with considerations which, it seemed to me, might apply.  She had time to do so and to respond helpfully, and I am grateful to her for doing so.  First, Sir Rupert Jackson made no mention of Employment Tribunals being affected by his report.  Indeed, her third submission (to the same effect) was that he expressly said that any proposed reform of Tribunals fell outside his terms of reference (see paragraph 52 of De Souza).  Second, in paragraph 51 of De Souza the Judge said:

“51. It is clear to me from reading the Judgment in Simmons v Castle and the other documents to which I have referred that the 10% uplift in damages was to compensate those Claimants who had lost those rights and now had to bear the costs themselves.  Sir Rupert Jackson was reporting in relation to “civil proceedings”.  Proceedings in Tribunals are not properly classified as “civil proceedings”, and litigants in Employment Tribunals have never had any right to recover ATE insurance premiums nor success fees.  So far as I am aware the provision of ATE insurance has never been a requirement in litigation in the Employment Tribunal (although it may have been available) and has never been regarded as an element of costs; similarly with success fees.”

 

35.              Fourth, she argued that Sir Rupert Jackson was expressly considering the culture of the courts (see paragraph 53 of De Souza as a reference): the regime of costs-shifting was that which he was considering.  She argued, fifth, that the award for injury to feelings is anomalous.  It results in an award of damages which could not be given by a county or sheriff court, where it is accepted that injury to feelings as such (distress, anxiety, inconvenience, or upset not accompanying a physical or mental injury) does not result on its own in any award of compensation.  That is why the Equality Act in its present form permits it for Employment Tribunals.  Such damages could not be awarded unless it did.  But, because it is anomalous the employment courts (see the cases of Vento v Chief Constable of West Yorkshire Police [2003] ICR 318 and Da’Bell v National Society for the Prevention of Cruelty To Children [2010] IRLR 19) have set out the ranges within which such awards of their own nature may form and have updated them at least once. 

 

36.              Bullimore v Pothecary Witham Weld Solicitors & Anor [2011] IRLR 18 - a decision of Underhill J as President, which in my view should be more generally honoured in practice than it is - is to the effect that Tribunals could up-rate those awards in line with inflation but, observes Miss Platt, that has not generally happened and awards are given by Tribunals within the Vento and Da’Bell guidelines as a matter of general practice, and I think she is right in that.  Accordingly, she submitted that the approach is one specific to the Tribunals.  It, therefore, has no real comparability with personal injury damages awarded in civil courts, and being tailor-made to the Tribunal should be unaffected by any uplift applied to other awards of a different sort, heard under a different costs regime, before a different forum.

 

37.              Consistent with that argument, however, she accepted that in those cases in which discrimination causes an injury which goes beyond mere distress and inconvenience, so as to create a recognised psychiatric condition which would be compensable in the civil courts, or physical manifestations of it which equally would be compensable, any award for those injuries should, in the light of Simmons v Castle be up-rated by 10%.  This gives rise to the inconvenience of separating out those aspects which are in themselves purely injured feelings and upset and those which, in the light of this submission, have to reflect the awards otherwise made in the county court.  The practical consequences of this are undesirable.

 

38.              The expression that she drew attention to was that the award should “broadly” be comparable to those in civil courts and sheriff courts.  Her submission here was that to apply a 10% uplift was not to take the award, so uplifted, outside the range of that which was broadly comparable, but that the very sense of breadth envisages a latitude around a central figure within which a 10% adjustment either way would be acceptable.

 

39.              Seventh, she argued that although it might be said that an award for discrimination in respect of personal injury should be broadly comparable to that awarded in the civil courts as, indeed, she had submitted, that did not apply in the present case where the award for Mr Beckford was purely in respect of injury to feelings and, therefore, was purely something which could be awarded in the Employment Tribunals. 

 

40.              Next she argued that there were many more litigants in person were likely to be found in Tribunals than in civil courts.  I shall come back to this argument because it ties with a point which I put to her for her observations and submissions.

 

41.              Lastly, she referred to the support which De Souza had from the decision in Chawla, which, I accept, should not be ignored being as it was a considered view of Slade J.

 

Discussion and Conclusions

42.              In my view the starting point is the statute.  That requires, in effect, awards to be comparable in the Tribunals to those given in the county court.  Though the comparability may be broad, I do not see that that comparability allows for one set of awards to be consistently 10% elevated above the other.  That is not “broadly comparable” but “generally 10% different”.  Moreover, I think that this statute reflects an important aspect of judicial policy, which is that awards made in the Tribunals should broadly be coherent with those made in the civil courts.  It does not reflect well on a system of justice that the same injury, as it may seem to a member of the public, should be compensated in one regime at a level lower than it would in another, particularly given that in discrimination cases there is a general principle of effectiveness deriving from European authority which requires the award to be broadly the same.

 

43.              Next the expressions in Simmons are, in my view, deliberately made to be applied across the board.  They are not confined simply to those cases in which there would have been a CFA agreement or ATE agreement before.  If they were so confined then a consequence logically might be that litigants in person who would have litigated in person in any event before the courts, if that could be established, should not be entitled to the 10% whereas if they had employed a solicitor, they should be.  This distinction seems to me one of the very obvious practical consequences of reading the Court of Appeal Judgment in any other way than appears at face value.  There is a statutory exception for mesothelioma cases which is provided for by the LASPO Act, but that is by way of specific exception for a specific class of case.  Its tenor is to support the view that the reason for the uplift is because of the incoming prohibition upon the then existing system of funding, and it meets the need for exceptional treatment of one class of case at least for a transitional period.

 

44.              The central argument, therefore, seems to me to rest upon whether the reason underlying the change of approach in the Court of Appeal to be applied across the board for all civil courts is such that it cannot and should not apply in Employment Tribunals.  Here there is a difference which is at the heart of it.  In civil courts there is in general a cost shifting regime.  That does not apply in the Employment Tribunals.  Were it not for this it would have been unnecessary to insure against having to pay the other party’s costs, and thereby incur a premium for ATE insurance.  The introduction of the recoverability of this premium and the additional costs payable under a CFA agreement was provided for by the government of the day - contrary to what had been its initial thoughts - in response to views put forward at least by the Executive Committee of the Personal Injury Bar Association at the time, which argued that the principle of full and fair compensation for an injury would be affected if, out of an award of damages, a Claimant had to pay a sum in order to have the ability to pursue a claim.  Unless they not only succeeded but also obtained repayment from the Defendant of the uplift on costs and the amount of any premium discharged as a necessary requirement to enable them to fight their claims, they would inevitably receive less than the full compensation for the injury to which the defendant’s breach of duty  had exposed them.

 

45.              In the Employment Tribunal there has never been cost shifting.  Arguably now that may apply in respect of fees, but that is a very limited exception.  A litigant in the Employment Tribunal is thus in a very similar position to that in which a litigant in the civil courts now is.  If such litigants wish to represent themselves they are free to do so.  If they wish to engage advocates they must pay.  The way in which cases are funded in the Employment Tribunal has - and this is where I return to the eighth point which was made by Miss Platt - more diversity than was the case in the county court.  Part of that was because it was and is open to a litigant to engage a lawyer on a contingency fee basis.  That is not lawful in the civil court.  It represents a percentage of the damages being paid, if successful, in order to be able to bring the claim.  Litigants entering contingency fee agreements a person would never have an expectation of full and fair compensation, since they could only ever recover a percentage of that figure, and would hope that the compensation would be sufficient to pay for the costs of bringing proceedings with assistance. 

 

46.              A second difference is that in the Tribunals anyone can be asked by a litigant to represent that litigant and that must be accepted by the Tribunal or Appeal Tribunal.  That is a matter of discretion in the civil courts.  Thus, the range of representatives habitually appearing before Employment Tribunals is broader, and their services may be cheaper than those legal services traditionally afforded by solicitors and counsel.  Miss Platt argues that these differences are such that the costs of bringing claims in Tribunals were potentially less, and there was no need for the system of funding representation which was necessary in the civil courts, and which once it was removed exposed litigants in the civil courts to an expense which has no equivalent in Tribunals.  It was helping to meet this sudden and additional expense caused to such litigants by the removal of the system which justified an uplift in damages.

 

47.              I do not accept this argument, since it both assumes that litigants in an Employment Tribunal are to be given a 10% uplift they will be in a favourable position compared to those in the civil courts when it comes to funding their claims, and takes no account of the fact that before CFAs were ever introduced there was cost-shifting in the civil courts, just as there was not in Tribunals, and that legal aid may have been more freely available then for civil claims than for Tribunal claims, but that it was then that Parliament enacted the statutory predecessor to section 124(6) of the Equality Act 2010.

 

48.              In my view, the position of the litigant in the Employment Tribunal so far as funding a claim is broadly similar now to that which applies in the county court.  That is because in neither case is there legal aid freely available, in both cases arrangements may be made with a solicitor which will have to be paid for out of the damages to be achieved, in each case there may be other means of support which may be engaged.  The existence of the regime by which CFAs and after-the-event premiums were awarded was a consequence to the earlier reduction in the availability of legal aid support for personal injury and similar claims, which had never generally been available in the Tribunal although there were some exceptions.  Given the position as I see it, that financing of litigation is broadly similar, though with the differences I have outlined, I see no particular reason in principle why the level of damages should be different.  The 10% uplift, if it is applied to Tribunal cases, has to pay for the costs of bringing the claim, or at least go towards them, in the same way as it now does in respect of most tort claims in the civil courts.  It makes little sense that as the position of litigants before civil courts has come closer to that of those in Tribunals (here, in respect of funding their cases) there should be a separation between them when it comes to the levels of award for torts causing “suffering inconvenience and distress” (quoting the words in Simmons v Castle).

 

49.              I think, therefore, that the analysis of HHJ Serota did not go deeply enough into the reasons for the existence of the recoverability of the premium and why it should be that the recoverability of that premium might justify an increase in the damages, in a sense to give the litigant a larger pot whilst recognising that he would get a smaller reward.  It looked merely at the “quid pro quo” for the removal of the recoverability of a CFA premium, which could apply only to the civil courts and in the context of a costs-shifting regime, to hold (in effect) that litigants in Tribunals would be unduly favoured if entitled to the uplift, rather than examining whether the position of the two groups in respect of funding their cases was now virtually identical, and nor did it consider that Parliament must have known of the different funding regimes (before CFAs were introduced, and to which in principle the system has returned, even if legal aid is not now readily available) in Tribunals and courts and yet stated that the awards in each should broadly be comparable.

 

50.              I do not consider that awards to “injury to feelings” are made under a separate system.  The logic of Vento was to assess such figures on a basis that would broadly be comparable to awards in cases of tort in the county and Sheriff courts.  If such figures increase across the board in those courts, so too should awards for injury to feelings in the Tribunal: and the fact that the principle in Bullimore seems generally to be ignored in practice does not mean the system is different - the principle, of uplift in line with inflation, applies to both.

 

51.              It follows that I do not see the reasons in principle which appealed to HHJ Serota as being as persuasive as he found.  I regard myself as bound by what I see as the general statement of principle in Simmons v Castle.  The statute applies, exactly as it provides.  I see no compelling argument to the opposite event and, for those reasons, for what it is worth, express my views consistent with those views expressed by Simler J. 

 

52.              I, therefore, dismiss the cross-appeal but, recognising that the last word will soon be spoken by others with a far greater access to all the available arguments, as I have perhaps not had, and with the benefit of fuller consideration, will permit an application for review of this Judgment to be made within 21 days of the publication date of the Judgment of the Court of Appeal in the forthcoming appeal of De Souza or, if for any reason it does not deal with the Simmons v Castle point, that in Sash Window Workshop v King.