Ms F Burns v University Hospital Coventry and Warwickshire NHS Trust: 1303330/2017
EMPLOYMENT TRIBUNALS
Case No 1303330/2017
Between
Ms F BurnsClaimantUniversity Hospital Coventry and Warwickshire NHS TrustRespondent
Before
Employment Judge Woffenden
Members
Mr D McIntoshMr P TalbotIn person for claimantDate 22 August 2019
JUDGMENT
1The respondent’s application that the tribunal recuse itself is refused.[2]Written reasons for the tribunal’s decision to permit the claimant to amend her claim having also been requested in accordance with Rule 62(3) of the Employment Tribunals Rules of Procedure 2013, reasons below are provided for both decisions:
REASONS
Introduction
[1]During the course of the final hearing (which addressed liability only) and after the written and oral submissions made by Mr. Islam-Choudhury on behalf of the respondent on 8 August 2019 the tribunal permitted the claimant to amend her claim to include an allegation that the appeal against her dismissal was unfavourable treatment under Section 15 Equality Act 2010 (‘EqA’) and /or part of her complaint that the respondent had failed to comply with its duty to make reasonable adjustments under section 21 EqA.[2]On 9 August 2019 Mr. Islam-Choudhury asked for written reasons for that decision and made an application that the tribunal recuse itself on the grounds of apparent bias which the claimant opposed. The tribunal decided to reserve its decision for the latter application and provide reasons for both decisions at the same time.[3]The claimant has been a litigant in person throughout. She was employed by the respondent in the position of Health Care Assistant from 2 April 2012 to 7 July 2017.[4]On 10 October 2017 the claimant presented a claim to the employment tribunal in which she complied of unfair dismissal and disability discrimination and because she had been discriminated against because of her part-time workers status. At that time her appeal against her dismissal had not been heard. Section 8.2 of the claim form comprised an extract from her letter to the respondent setting out her grounds of appeal dated 27 July 2017 (the first 2 pages only).[5]The respondent had presented its response to the tribunal on 4 December 2017. It contained 4 paragraphs (16 to 19 inclusive) which addressed the claimant’s appeal and the appeal hearing conducted by a Mr Kee and recorded his decision to dismiss the claimant’s appeal and that he had written to the claimant to confirm that decision.[6]On 6 September 2018 EJ Britton conducted a preliminary hearing for case management purposes at which the respondent was represented by a solicitor Ms. Harris (who has sat behind Counsel throughout the final hearing) and the claimant was in person. By this time the claimant’s appeal had been heard by a Mr. Kee and it was unsuccessful.[7]In his order EJ Britton made no reference to the appeal having post-dated the claim in the order he made. He did set out the issues which fell ‘potentially’ to be determined in relation to unfair dismissal (what was the principle reason for dismissal and if capability as asserted by the respondent was the dismissal fair or unfair under section 98(4 ) Employment Rights Act 1996(‘ERA’) and within the ‘band of reasonable responses’. He also identified the alleged unfavourable treatment for the purposes of her complaint under section 15 EqA as ‘dismissing her ‘.[8]EJ Britton also noted the reasonable adjustments which the claimant alleged should have been taken as: “(i) provided with adequate time in which to recover by extending the timescales envisaged by the relevant policy applied by the respondent within which she was expected to be fit to return to her substantive role; (ii) place the claimant into a vacant job role, just the role of emergency receptionist, that may have been available for her to perform within her normal hours (weekends only) and was suitable for her taking into account the limitations arising from her “disability”; (iii) the creation of a shift roster or rotor elsewhere within the Trust that facilitated a requirement for someone to work we can shift only that would have been available for the claimant to work and was suitable for the claimant to take into account the limitations arising from her “disability”.”[9]EJ Britton made orders for disclosure by the claimant of her relevant medical notes and other evidence on which she relied in relation to the disability issue and the provision of a witness statement. He went on to require the respondent to inform the tribunal and the claimant by 6 December 2018 whether the “disability question” was conceded, having noted the claimant alleged she was a disabled person because of pain and restricted movement in her right shoulder and impingement in her left shoulder.[10]On 27 December 2018 the respondent wrote to the tribunal to say it “concedes the disability question.” No more information was given. It also served an amended response.[11]At the commencement of the final hearing (listed from 5 to 12 August 2019) Mr. Islam-Choudhury had prepared a draft agreed list of issues. The Tribunal asked from what date the respondent had conceded disability. Mr. IslamChoudhury said it was from 24 December 2016 (the date on which the claimant first went off work sick with shoulder pain) but knowledge was not admitted for the purposes of either the claimant’s complaints under section 15 EqA or section[21]EqA. He also conceded that (subject to knowledge) the claimant’s dismissal for ill-health capability was unfavourable treatment and dismissal was for something arising from disability (namely’ the claimant’s sickness absence.’ Subject to knowledge therefore the respondent’s defence to that claim was confined to legitimate aim and proportionality. He also applied for and was granted permission by the Tribunal to amend the response to include a third legitimate aim (‘Employees should be able to perform the essential functions of their substantive roles.’12. In relation to the claimant’s dismissal Mr. Islam -Choudhury had reproduced in the draft agreed list of issues the wording used by EJ Britton (see paragraph 7 above).13. It was in the circumstances above therefore that the tribunal approached its prereading. It read the claimant’s complete letter of appeal dated 27 July 2017 and appeal outcome letter which were included in the agreed bundle of documents and the respondent’s bundle of witness statements which included that of Mr. Kee (who had heard and rejected the claimant’s appeal). He was evidently to attend the final hearing to give evidence. The claimant’s complete letter of appeal dated 27 July 2017 had raised a number of points which included ‘ Disability discrimination ,as technically temporarily disabled until confirmed otherwise.’ and unfair treatment ‘as treatment ongoing/not completed and specialist has not given opinion yet or advised of plan prior to the panel making their outcome decision’. The appeal outcome letter of 30 November 2017 had noted the claimant had been unfit for work for almost twelve months but did not address the claimant’s point about disability discrimination although Mr. Kee’s witness statement said he had decided to dismiss ‘every ground’ of the claimant’s appeal.14. It is trite law that in relation to a claim of unfair dismissal a tribunal must consider whether the disciplinary process as a whole is fair ( Taylor v OCS Group Ltd [2006] IRLR 613 CA).15. In Baldeh v Churches Housing Association of Dudley & District Ltd [2019] UKEAT 0290 His Honour Judge Shanks held in relation to a section 15 EqA complaint and a complaint of unfair dismissal (under section 103A ERA) the outcome of an appeal against dismissal was integral to the overall decision to dismiss (paragraph 15) and that in that case the tribunal should have considered the appeal decision as part of the overall decision to dismiss the claimant and decided whether it was itself discriminatory. In that case an earlier tribunal had identified one act of unfavourable treatment namely the claimant’s dismissal in the case management summary of a preliminary hearing . Further a failure by a respondent to make reasonable adjustments is relevant to objective justification under a section 15 EqA complaint (see Paragraph 5.21 of The Code of Practice on Employment (2011) (‘the Code’) –‘If an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavorable treatment, it will be very difficult for them to show that the treatment was objectively justified’.) and the duty to make reasonable adjustments applies at all stages of employment including dismissal (Paragraph 6.8 of the Code).16. The tribunal therefore formed the initial view that the appeal was part and parcel of the claimant’s dismissal and relevant to all her complaints.17. The claimant applied to amend her claim to include holiday pay, but that application was refused. She also indicated she intended to apply to amend her claim to include a complaint of indirect disability discrimination and after discussion with the tribunal and having being given the opportunity to consider her position overnight and referred to the Code of Employment (2011) and the Employment Tribunals (England and Wales)-Presidential Guidance-General Case Management (2018) in particular Guidance Note 1: Amendment of the Claim and Response Including Adding and Removing Parties she decided not to make that application.18. The claimant was cross-examined by Mr. Islam-Choudhury on 5 and 6 August 2019. She confirmed she had presented her claim to the tribunal on a precautionary basis because she understood there were time limits which ran from her dismissal. She said she had not told EJ Britton at the preliminary hearing she was complaining about the way the respondent had handled her appeal and that it was discriminatory because she did not see that was the place to do so and she had found him ‘quite direct’. She accepted Mr. Kee had dealt with all the bullet points in her appeal but said she did not agree with the outcome and later agreed he had dealt with her appeal in a fair and reasonable manner but repeated that she did not agree with the outcome.19. Mr. Kee attended the hearing on 8 August 2019 and was cross examined by the claimant. She began by asking him what experience he had had of managing capability hearings when the employee concerned was disabled and later whether he was happy due process had been followed and whether he had authority to change the outcome of dismissal and reinstate her. He was also asked about the evidence he had about reasonable adjustments and whether disability had been considered and the nature of the hearing he had undertaken and whether he had before him or sought to obtain new evidence.20.Rule 41 of the Employment Tribunals Rules of Procedure 2013 reads as follows “The Tribunal may regulate its own procedure and shall conduct the hearing in the manner it considers fair, having regard to the principles contained in the overriding objective. The following rules do not restrict that general power. The Tribunal shall seek to avoid undue formality and may itself question the parties or any witnesses so far as appropriate in order to clarify the issues or elicit the evidence. The Tribunal is not bound by any rule of law relating to the admissibility of evidence in proceedings before the courts.” 21. After the claimant had concluded her cross-examination of Mr. Kee and in the light of the view it had formed (as set out paragraph 16 above) and in accordance with Rule 41 the members of the tribunal each asked him as decision maker in relation to the appeal questions in order to clarify what training he had had about disability ;whether he thought he was conducting a rehearing or review of Mr Palmer’s decision to dismiss ; whether further investigations would have been carried out if new information emerged ;whether or not he had considered the disability discrimination point raised by the claimant in her appeal and if he had not done so was this because it was not a point raised before the dismissing officer Mr. Palmer ;and whether he had regarded the disability discrimination point as new information which warranted further investigation by him. Mr Kee did not decline to answer questions put to him and Mr. Islam -Choudhury did not object to any question put by the tribunal or (when asked if he wished to do so) conduct any re-examination of Mr. Kee and told the tribunal that concluded the respondent’s case.[22]Having considered Mr Islam-Choudhury’s cross-examination of the claimant about the appeal the tribunal became unsure whether the respondent had had regard to Baldeh. The tribunal therefore took the opportunity prior to written and oral submissions by the parties to provide Mr Islam Choudhury with its copy of Baldeh (an authority of which he told the tribunal he had not hitherto been aware) with paragraph 15 highlighted.[23]Mr. Islam-Choudhury made his oral submissions later that day. He first addressed the issue of knowledge in the context of the claimant’s section 15 EqA complaint .His written submissions (prepared the previous afternoon) stated it was irrelevant whether Mr. Kee had actual or constructive knowledge because the appeal was heard after the presentation of the claim and the claimant had not amended the claim or put the tribunal on notice that she wished to allege his decision was discriminatory; therefore the issue of knowledge was relevant only to Ms. Nurse ( the claimant’s line manager and Mr. Palmer (the dismissing officer) . The claimant had had the opportunity to clarify on what matters in the appeal she wanted to rely at the preliminary hearing before EJ Britton on 6 September 2018 but had not referred to the appeal. The tribunal sought clarification from which it emerged that although Mr. Islam-Choudhury accepted that in relation to the unfair dismissal claim the appeal was integral he did not accept that was the case as far as disability discrimination was concerned because the last act complained of was the dismissal by Mr. Palmer on 7 July 2017 .He submitted this case could be distinguished from Baldeh because in the latter the claimant ( also a litigant in person) had referred to discrimination on grounds of disability and recited the appeal and the appeal decision letter in her claim form. The tribunal asked him why he had not then objected to what (on his analysis) were irrelevant questions posed by the tribunal to Mr. Kee .He said it was up to him to decide to do so if he wished ;he was reserving his position and to do so at the time might have been more time consuming. He then went on to conclude his oral submissions before the lunch time adjournment.[24]After the lunch time adjournment and before the claimant made her submissions the tribunal referred her to Baldeh and gave her a copy ( highlighted as for Mr. Islam-Choudhury) .It asked the claimant to clarify if she wanted the tribunal to consider the appeal decision as part of the overall decision to dismiss her and whether it was discriminatory as part of her section 15 EqA claim and/or part of the respondent’s alleged failure to comply with its duty to make reasonable adjustments under section 21 EqA. She confirmed she did.[25]The tribunal informed her that in that case she would have to apply to amend her claim to include those matters in the absence of any reference to the appeal in her claim form and reminded her of the contents of Guidance Note 1 which she had read earlier in connection with her application to amend her claim to include a complaint under Section 19 EqA. The tribunal expressed its regret at this turn of events at such a late stage in the proceedings. Mr. Islam-Choudhury observed that an application to amend could be made at any time before judgement was issued.[26]The claimant then made an application to amend and said she had not been aware as a litigant in person hitherto that the whole process would not be considered by the tribunal as far as her disability discrimination complaints were concerned. She did not know that after the issue of her claim (which she had presented because she was aware there were time limits) there was any subsequent action for her to take.[27]Mr. Islam-Choudhury objected to the application to amend. He submitted the claimant’s witness statement did not deal with the appeal. If an unrepresented claimant brought such a claim, they might presume incorrectly that an appeal was included. However, in this case there were two aspects which pointed against leniency. Firstly, the claimant did have a preliminary hearing before EJ Britton and he would have explored all such issues precisely. The appeal hearing had been in 2017. The preliminary hearing was in 2018. Secondly if the claimant had erroneously thought this was a technical amendment there would be a proper evidential basis for it in her witness statement. It had only arisen because he had taken the point. If parties changed their positions where they realised where the other party was coming from there would be a never-ending circle of amendments. There was prejudice to the respondent; he would need to crossexamine the claimant further and Mr Kee would have to be recalled. The timescale for the hearing would be prejudiced and the production of judgement would be delayed, and the relevant facts had taken place as long ago as July 2017.[28]The claimant responded that she believed that because she was complaining about the way the respondent’s attendance policy had been applied to her that would cover everything which happened under that policy. She thought everything was covered in one application to the tribunal. It would be detrimental to her case if the appeal was not dealt with as part of her disability discrimination claims. The tribunal decided to grant the application and gave oral reasons for its decision.[29]Mr. Islam-Choudhury asked for and was given a short adjournment in order to consider the way forward. He then asked that the claimant provide further information about what she alleged Mr Kee had or had not done so that he could prepare further cross-examination of the claimant. The tribunal ordered her to do so by 9 August 2019 and gave the respondent leave to amend the response and for Mr. Kee to prepare a supplementary witness statement (if so advised). The tribunal did not envisage that these steps and any further evidence and submissions could not be concluded in the remaining time available and proceedings ended for that day.[30]On the next day (9 August 2019) Mr. Islam-Choudhury first applied for written reasons for the decision to permit the claimant to amend and for a stay so that the respondent had the opportunity to consider an appeal to the Employment Appeal Tribunal and then that the tribunal recuse itself.[31]The tribunal sets out its reasons for its decision to permit the claimant to amend her claim in paragraphs 31 to 36 below.[32]Under its general power to regulate its own proceedings and specific case management powers, an Employment Tribunal can consider an application to amend a claim at any stage of the proceedings.[33]The principles in relation to the grant or refusal of an amendment are set out in the case of Selkent Bus Co Ltd v Moore [1996] ICR 836. In Selkent, the EAT confirmed that the Tribunal should take into account all the circumstances and should balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it. What are the relevant circumstances? Whilst it was impossible and undesirable to attempt to list them exhaustively, the EAT considered that the following are relevant:(a) The nature of the amendment – this can cover a variety of matters such as: i. the correction of clerical and typing errors; ii. the additions of factual details to existing allegations; iii. the addition or substitution of other labels for facts already pleaded; iv. the making of entirely new factual allegations which change the basis of the existing claim.(b) The applicability of time limits - if a new complaint or cause of action is proposed to be added by way of amendment, it is essential for the ET to consider whether that complaint is out of time and, if so, whether the time limit should be extended under the applicable statutory provisions.(c) The timing and manner of the application - it is relevant to consider why the application was not made earlier and why it is now being made: e.g. the discovery of new facts or new information appearing from documents disclosed on discovery.[34]The tribunal reminded itself the claim ,as set out in the claim form is ‘not just something to get the ball rolling as an initial document necessary to comply with time limits but which is otherwise free to be augmented by whatever the parties choose to add or subtract merely on their say so’ ( Langstaff P in Chandhok v Tirkey UKEAT/0190/14/KN).The claimant’s claim form does not contain any anything about what part any appeal played in the unfair dismissal claim and disability discrimination complaints she is making since the appeal and its outcome had not occurred at the time she presented her claim to the tribunal. In our judgment the amendment she now applies to make to her disability discrimination complaints is a substantial one, in that it includes an new act (the appeal conducted by Mr Kee) and / or his failure to comply with the duty to make reasonable adjustments as part of those existing complaints .In our judgment even if the appeal and its outcome was the end of conduct extending over a period for the purpose of section 123 (3) (a) EqA complaints about these matters are now very substantially out of time.[35]However, under section 123 (1) (b) EqA tribunals have the power to extend time where they consider it would be just and equitable for time to do so. It is for the claimant to persuade us to exercise our discretion in her favour. She has discharged that burden. She is a litigant in person and did not realise until 8 August 2019 that the appeal was not included as part of her complaints which she understood to encompass the application to her of the respondent’s attendance policy in its entirety including appeal. She had not appreciated that she could have brought up the appeal with EJ Britton at the preliminary hearing. There was no evidence before us about what was explored at that hearing other than the record of it. She has acted as soon as she became aware of the situation. There is no evidence that the cogency of Mr. Kee’s evidence has been affected by the delay. The prejudice to the claimant would be substantial; she will be deprived of the opportunity to have the entirety of the application of the respondent’s attendance policy considered by the tribunal as part of her disability discrimination complaints (as she believed it would do ) but truncated at the point of dismissal. Any prejudice to the respondent however (other than potential delay and legal costs) can be mitigated by the giving the respondent the opportunity to amend its response in relation to the appeal (which already pleaded the fact of the appeal by Mr. Kee though the claimant’s claim form was silent about it) and the preparation of a supplementary witness statement by him.[36]As far as the manner and timing of her application is concerned the tribunal has accepted the claimant’s explanation why it was made at this very late stage. Although she (like the claimant in Baldeh ) complained of unfair dismissal and the unfavourable treatment under section 15 EqA was dismissal and under Baldeh the outcome of an appeal against dismissal is integral to the overall decision to dismiss ,her claim form had predated the appeal conducted by Mr. Kee and she had not known until this point in the proceedings that amendment was necessary to include this .We do not consider that omission of the appeal from the claimant’s witness statement is a relevant circumstance which we should take into account against the claimant as submitted by Mr.Islam-Choudry. Although she did not raise any procedural complaints about the appeal, she had made it clear under cross examination that she did not agree with the outcome and she then cross-examined Mr. Kee about his conduct of the appeal as set out in paragraph 17 above.[37]The tribunal reminds itself that the balance of hardship and injustice is a balancing exercise. It has decided it would be just and equitable to extend time and that that is a forceful (though not determinative) factor in favour of granting permission to amend. The tribunal concludes that the hardship and injustice on the claimant is greater if the amendment was refused than to the respondent if were granted. The application to amend is therefore granted.[38]As far as the application that the tribunal recuse itself is concerned Mr IslamChoudhury submitted that this was made on the basis of apparent bias. He relied on paragraphs 906 to 915.01 of Harvey on Industrial Relations and Employment Law Division PI Practice and Procedure /1 Employment Tribunals/Y. Procedure at the hearing/ (12) Duty of tribunal to act fairly/ (b) Bias and the appearance of bias.[39]In particular Mr Islam-Choudhury relied on paragraph 11. (d) and (e) of the principles summarised by Burton J in the EAT and approved by the Court of Appeal in Ansar v Lloyds TSB Bank plc [2006] EWCA Civ 1462. They were: ‘11. Whilst recognising that each case must be carefully considered on its own facts, a real danger of bias might well be thought to arise (Locabail at paragraph 25) if: …. (d) on any question at issue in the proceedings before him the judge had expressed views, particularly in the course of the hearing, in such extreme and unbalanced terms as to throw doubt on their ability to try the issue with an objective judicial mind; or (e) for any other reason, there were real grounds for doubting the ability of the judge to ignore extraneous considerations, prejudices and predilections and bring an objective judgment that on the issues."[40]Mr. Islam- Choudhury submitted that the factual basis upon which he made his application was at that on day two of the hearing he had cross-examined the claimant and, on the appeal, and she had conceded it was fair and reasonable in the context of the dismissal. It he had put it to her that it was not part of her claim because her appeal had been launched on 23 November 2017 and she had not suggested that the appeal was part of her disability discrimination claim. EJ Britton said that at the preliminary hearing her claim had been explored at great length and detail and she had not said that the appeal was part of her claim of disability discrimination. The tribunal was therefore live to the fact that this was an argument which the respondent was running. When the appeal officer was cross-examined by the tribunal panel a number of questions were asked which went to the issue of whether the claimant had been discriminated against. The tribunal had acted as the claimant’s advocate beyond ensuring "equality of arms". Any reasonable person would have found that the tribunal had gone beyond its remit when embarking on that line of questioning because immediately afterwards although there have been no objections the witnesses informed him that they felt the tribunal had become the claimant's advocate. He was an experienced practitioner and was familiar with the way in which tribunal is conducted themselves. He was aware that it was the tribunal's duty to ensure equality of arms and that the claimant's case was properly put but he was not confident that he could say that here because it was not part of the case that the claimant had put ;in fact in his closing submissions he made that very point. The claimant had never asserted in her claim form or in the proceedings that the appeal was discriminatory. She had provided a witness statement and had not made the allegation in it either. She had conceded in reply to his cross examination that although she did not agree with the outcome, the appeal had been conducted in a reasonable and fair manner and that the respondent had been fair to dismiss her for capability. The tribunal had identified the discrimination complaint as extending to the appeal and had acted quite improperly by inviting the claimant to cure a defect in her claim. The tribunal had descended into the arena rather than ensure equality of arms. He asked what a claimant was to do when the tribunal had embarked on detailed questions and then asked, "Do you wish to amend your claim to include what you have heard?" A fair-minded and informed observer would have formed the view that the tribunal was unconsciously biased. It was not an application he made lightly but what had persuaded him was that after the tribunal had invited the claimant to make an application to amend the immediate reaction of his witnesses was that the tribunal was biased. He volunteered that they were not objective but were informed observers. He had taken instructions this morning and the result was this application.[41]The claimant opposed the application. She said she appreciated the assistance she had been given by the tribunal in directing her to the Code of Employment 2011 .She had been upset while giving her evidence and just said yes when asked if the procedure was reasonable but had limited knowledge of employment law and had made a plethora of errors in her witness statement; she had not known what to do and there were lots of matters she did not address. She had been given a fair opportunity to put her case and had been grateful for the opportunity to understand the process and address the issues. She repeated that she had regarded her complaints as not being segregated but all part of one process.[42]The test for apparent bias is set out in Porter v Magill [2002] UKHL 67 formulated by Lord Hope of Craighead as follows: ‘The question is whether the fair- minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.’[43]Such an observer would be informed of all the relevant circumstances above which include the tribunal’s reasoning, the way the final hearing had progressed and the crystallisation of the approach the respondent was taking to the appeal as far as the ambit of the claimant’s disability discrimination complaints concerned. They would have in mind the overriding objective (Rule 2 of the Employment Tribunals Rules of Procedure 2013) to which tribunals are required to seek to give effect in interpreting and exercising any power given to it under those Rules. The overriding objective of the Rules is to enable tribunals to deal with cases fairly and justly. Dealing with a case fairly and justly includes, so far as practicable – ‘(a) ensuring that the parties are on an equal footing; (b) dealing with cases in ways which are proportionate to the complexity and important of the issues; (c) avoiding unnecessary formality and seeking flexibility in the proceedings; (d) avoiding delay, so far as compatible with proper consideration of the issues; and (e) saving expense.’ They would also be aware of the tribunal’s powers under Rule 41 of the Employment Tribunals Rules of Procedure 2013 to put questions to witnesses and to permit amendments. They would know that the former reflects the long standing practice that the tribunal gives assistance to unrepresented parties (like the claimant ) and the latter can be made at any time provided the parties have been given the opportunity to set out the grounds of any such application and make any objections . They will also be aware that if assistance is provided the tribunal must not overstep the mark and act (or give the impression of) acting for that party because if it did so it would not be deal with a case fairly or justly.[44]Having regard to those circumstances such an observer would not have concluded either from the fact the tribunal questioned Mr Kee or the content of the questions or the way were they posed to Mr. Kee at the material stage in the proceedings or the way the tribunal approached the question of the amendment of the claimant’s claim that there was a real possibility that the tribunal was biased. The respondent’s witnesses are neither as objective nor as well-informed as the hypothetical fair minded and informed observer. Such an observer would not have considered the tribunal had descended into the arena and acted as the claimant’s advocate, thus going beyond ensuring "equality of arms". The application to recuse is therefore refused.[1]The claimant’s claims under sections 15 and 20 Equality Act 2010 and for unfair dismissal having succeeded, there was a preliminary hearing (by telephone ) on 7 May 2021 at which a remedy hearing for 13 January 2022 was listed and case management orders made. That hearing was postponed very shortly before the hearing date until 18 March 2022 due to the ill health of the claimant. At 9.35 am on 18 March 2022 the claimant sent an email to the tribunal in which she said she would like to apply for a postponement. Notwithstanding the claimant attended by CVP at the commencement of the hearing at 10.00.The tribunal informed the claimant that her application was refused because she had been told in writing on 17 March 2022 how to apply for a postponement but had not complied with the relevant rules ( Rule 30(2) and Rule 30A of the Employment Tribunal Rules of Procedure ) and had provided no reason for the application. The tribunal asked the claimant if she wanted to renew her application but she said she did not and wanted matters concluded .
Evidence
[2]The tribunal heard evidence from the claimant. On behalf of the respondent the tribunal heard from Mr N Rees ( one of the respondent’s Workforce Business Partners) . There was a bundle of documents ( 764 pages).
The Issues
[3]The issues for the tribunal to determine were agreed at the preliminary hearing on 7 May 2021.At the commencement of the hearing on 18 March 2022 after the tribunal had explained what orders may be made under section 113 Employment Rights Act 1996 , the circumstances in which they may be made and asked her if she wished the tribunal to make such an order, the claimant said she did not wish such orders to be made. The remaining issues to be determined by the tribunal were therefore as follows: Remedy for unfair dismissal3.1 What basic award is payable to the claimant, if any? Remedy for discrimination3.2 Should the Tribunal make a recommendation that the respondent take steps to reduce any adverse effect on the claimant? What should it recommend?3.3 What financial losses has the discrimination caused the claimant?3.4 Has the claimant taken reasonable steps to replace lost earnings, for example by looking for another job from either March 2018 or in the alternative June 2018 ?3.5 If not, for what period of loss should the claimant be compensated?3.6 What injury to feelings has the discrimination caused the claimant and how much compensation should be awarded for that?3.7 Is there a chance that the claimant’s employment would have ended in any event? Should their compensation be reduced as a result?3.8 Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? (the respondent says it does not)3.9 Did the respondent or the claimant unreasonably fail to comply with it (the claimant has not specified any alleged failures and the respondent says the claimant failed to raise a grievance)?3.10 If so is it just and equitable to increase or decrease any award payable to the claimant?3.11 By what proportion, up to 25%?3.12 Should interest be awarded? How much?
Findings of Fact
[4]The claimant was employed by the respondent as a Band 2 Healthcare Assistant (‘HCA’) working weekends only from 2 April 2012 to 7 July 2017 when she was dismissed by reason of capability. She was 48 years old when she was dismissed. Under her contract of employment her contracted hours of work were 15 hours a week over 2 shifts and her employment was subject to an unsocial hours payment. Her last full pay slip before sick leave (November 2016) shows she received £879.37 gross pay for 65 hours that month including unsocial hours payments( Saturday and Sunday working).Her weekly net pay was £ 147.50 . Her annual salary was £6548.80.The respondent paid her 5 weeks’ pay in lieu of notice on dismissal.[5]The claimant also had a full-time job with Croner Group Limited (‘Croner’) working as a health and safety consultant Monday to Friday from home and in the office. She earned £23 604.35 per annum.[6]By 8 October 2017 the claimant’s entitlement to half pay would have ended and she would have been on nil pay until 28 February 2018.She was not fit for any work until that date .By 15 June 2018 she had been discharged from the care of her consultant. Although under cross -examination she said she was doubtful that before that date she would have been able to carry out her normal duties as a health care assistant even if reasonable adjustments had been made for her, her evidence about this was vague and unconvincing. We find that she was fit to work as a health care assistant from March 2018 onwards.[7]The respondent has included details of health care assistant /care assistant advertisements in and outside the NHS in the Coventry Bedworth and Nuneaton areas for February March and April 2019 November 2020 and October 2021 but none of them were for weekends only ,referring to working rotating shifts zero hours and working nights.It was put to the claimant in cross examination that when she was fit to work she should have tried to work to mitigate her loss to which she responded by referring to her financial resources (several properties endowments shares and investments ) from which we infer that she felt under no immediate financial imperative to do so. It was also put to her that she should have tried to replace her job at the respondent by applying for a healthcare assistant role but she had failed to do so. She replied by saying she had done so (though this transpired to be a reference to a role as a healthcare assistant with Turning Point which she was offered on 31 December 2020 having applied on 30 November 2020).She was asked if she had applied for a similar health care assistant role prior to that and replied that retrospective applications were no longer on the NHS website. When asked about again about this she said she had been applying for other jobs in the NHS in an ‘improved’ role and would then have applied for a healthcare assistant weekend role. We did not find her evidence about prior applications or her explanation for not having made any at all convincing and find that the first application she made for a healthcare assistant role was to Turning Point.[8]Between 1 February 2018 and 27 October 2021 the claimant applied for over 80 roles both within and outside the NHS. By way of example on 1 February 2018 the claimant applied (unsuccessfully) for a post as health and safety advisor ( a non NHS role).On 5 March 2018 she applied unsuccessfully for an internal role at Peninsula. On 18 March 2018 she applied (unsuccessfully ) for a position as Senior Fraud Prevention Officer in the NHS. On 24 March 2018 she unsuccessfully applied for a post as a health and safety advisor at an annual salary of between £38000 and £45000. This salary range was more than the claimant’s salary at Croners and her wages as an HCA added together. On 26 March 2018 she (unsuccessfully) applied for the role of health safety and environment officer at an annual salary of £35000.On 27 March 2018 she (unsuccessfully) applied for a post at Sandwell and West Birmingham Hospitals NHS Trust as a Trust Overseas Visitors manager .On 11 April 2018 she (unsuccessfully) applied for the role of health and safety business partner. On 3 May 2018 she (unsuccessfully) applied for the role of health and safety manager at a annual salary of between £34000 and £36000. On 31 May 2018 she (unsuccessfully) applied for NHS Assistant Director of Communications .On 3 October 2018 she (unsuccessfully) applied for NHS Associate Director of Operations. As she said in her witness statement (which evidence we accept) she applied for a variety of roles to look to increase her overall salary . Most of the roles she applied for were for health and safety advisory roles and for more money. She felt she had stagnated at Croners and had the skill sets to apply for the roles in question.[9]The claimant was offered and accepted a promotion by Croner to the role of Health and Safety Team Leader at an annual basic salary of £35000 with effect from 1 March 2019 ( offer letter 12 June 2019). Employers’ pension contributions were said to be 7% but there was no evidence the pension scheme in question was a defined benefits scheme. She continued to look for other roles outside of Croners and received another offer from the Open University on 9 October 2019 but did not take that role because of some legal complication that arose. On 10 April 2021, the respondent offered to the claimant a new Healthcare Assistant Band 2 role working only on weekends. The offer was made without need to go through any selection process, but subject to the respondent’s usual preemployment checks. On 16 April 2021, the claimant accepted the offer. Although the usual time frame for hiring a healthcare assistant is 41 days the claimant was not in post by the date of this hearing. She attributed this to a variety of ‘hoops’ such as being interviewed for her job of choice and administrative difficulties she encountered but we find that had the claimant applied herself to the tasks in hand she would have been in post by early Summer 2021 and that she did not do so because she did not really want to work for the respondent in the role of healthcare assistant.[10]Although the claimant’s schedule of loss assessed her injury to feelings at ‘£45000 upper tier’ ,her witness statement contained no evidence whatsoever about this. Her explanation for this omission under cross examination was that she did not know she had to which she attributed to the effect of dealing with several bundles of documents. We did not find her ignorance about the need for such evidence credible in view of the clear identification and discussion of the issue at the preliminary hearing on 7 May 2021.[11]The claimant was a member of the respondent’s pension scheme which is a defined benefit scheme. The employers’ contributions were 14.83%.She was (and therefore would have been had she remained in the respondent’s employment) entitled to increments due to the implementation of NHS Agenda For Change pay increases. For the period 1 April 2017 to 31 March 2018 her net weekly pay ( including enhancements) would have been £ 152.81 .For the period 1 April 2018 to 31 March 2019 her net weekly pay (including enhancements ) would have been £ 160.14. The Law Remedy for Unfair dismissal
The Law
[12]Under section 119 Employment Rights Act 1996 (‘ERA’): ‘(1)Subject to the provisions of this section, sections 120 to 122 and section 126, the amount of the basic award shall be calculated by— (a)determining the period, ending with the effective date of termination, during which the employee has been continuously employed, (b)reckoning backwards from the end of that period the number of years of employment falling within that period, and (c)allowing the appropriate amount for each of those years of employment. (2)In subsection (1)(c) “the appropriate amount” means— (a)one and a half weeks’ pay for a year of employment in which the employee was not below the age of forty-one, (b)one week’s pay for a year of employment (not within paragraph (a)) in which he was not below the age of twenty-two, and (c)half a week’s pay for a year of employment not within paragraph (a) or (b).’ 12 A weeks’ pay is the gross contractual remuneration an employee is entitled to be paid when working their normal hours of work each week calculated in accordance with Chapter 11 sections 221 to 224 ERA. A basic award is calculated in a similar way to a statutory redundancy payment.[13]Under section 123 (1) ERA: ‘(1)Subject to the provisions of this section and sections 124 124A and 126 , the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.’[14]Under section 123 (4) ERA: (4)In ascertaining the loss referred to in subsection (1) the tribunal shall apply the same rule concerning the duty of a person to mitigate his loss as applies to damages recoverable under the common law of England and Wales or (as the case may be) Scotland.’[15]Any claimant will be expected to mitigate the losses they suffer as a result of an unlawful act by giving credit for earnings in a new job. The tribunal will not make an award for losses that could reasonably have been avoided .The claimant is expected to take reasonable steps to minimise the losses suffered as a consequence of the unlawful act .The respondent has the burden of proving a failure to mitigate ( Fylde v Scientific Commissioning Ltd 1989 IRLR 331). It is insufficient for a respondent merely to show the claimant failed to take a step that it was reasonable to take. The respondent has to prove the claimant acted unreasonably .If the claimant failed to take a reasonable step the respondent has to show any such failure was unreasonable. Remedy for Discrimination[16]Under section 124 Equality Act 2010 (‘EqA’) the following discretionary remedies are available: a declaration as to the rights of the parties ,an order for compensation to be paid to the claimant and an appropriate recommendation. ‘(1)This section applies if an employment tribunal finds that there has been a contravention of a provision referred to in section 120(1). (2)The tribunal may— (a)make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate; (b)order the respondent to pay compensation to the complainant; (c)make an appropriate recommendation.’[17]In Ministry of Defence v Cannock and Others ICR 918,the EAT said in relation to compensation that the aim is ’as best as money can do it, the applicant must be put in the position she (or he) would have been in but for the unlawful conduct.’ The tribunal must ascertain the position the claimant would have been in had the discrimination not occurred. Causation requires tribunals to form a view about what would have happened, despite many unpredictable factors. The question of what loss is caused by a particular act of discrimination is related to the question, in a discriminatory dismissal case, of whether the employee could or would have been fairly dismissed were it not for the discrimination. Tribunals may need to consider whether, were it not for the discriminatory dismissal, there could have been a non-discriminatory dismissal at the same time, or whether there would have been a non-discriminatory dismissal at some definable point in the future. The chance that the claimant could or would have been dismissed in any event, with no discrimination, can be recognised by making a reduction in compensation for future loss. This may take the form of a percentage reduction to reflect a chance. It may also be possible to say that employment would have come to an end in any event by a certain point. In Polkey v AE Dayton Services Ltd 1988 ICR 142, HL, the House of Lords established that where a dismissal was procedurally unfair, but the employer could show that there was a significant chance that, had it followed a fair procedure, it would have dismissed anyway, compensation could be reduced. A respondent can rely on Polkey in discrimination cases to contend there should be a reduction in compensation because a fair dismissal was likely at some point in the future. In Abbey National plc and anor v Chagger 2010 ICR 397 CA. Lord Justice Elias stated that the possibility of dismissal of the claimant had to be factored into the measure of loss. An employment tribunal might also consider the chance of the claimant remaining in employment in any event. It may also be necessary to consider if the chain of causation has been broken(Essa v Laing Ltd [2004]IRLR 313 CA).[18]Compensation (e.g., for loss of earnings) may overlap in the claims of unfair and discrimination. Double recovery must be avoided. Section 126 ERA prevents double recovery, but does not specify when the award should be made as compensation for unfair dismissal or discrimination. In these circumstances, the EAT has suggested that tribunals should award compensation under the discrimination legislation, thereby avoiding the cap on the unfair dismissal compensatory award (D’Souza v London Borough of Lambeth 1997 IRLR 677, EAT).[19]Tribunals may make an award for injury to feelings in discrimination cases. The tribunal bears in mind that compensation is designed to compensate the injured party rather than punish the guilty one .Awards should bear some relation to those made by the courts in personal injury .The tribunal follows guidelines first given in Vento v Chief Constable of West Yorkshire Police[2003] ICR 318 in which the 3 broad bands of compensation for injury to feelings were set out as follows: i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000. ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band. iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.[20]In Vento it was stated at paragraph 66 that ‘There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case’.[21]On 5 September 2017 the Presidential Guidance rated the bands as follows (for claims lodged after that date): Lower - £800 to £8,400; Middle - £8,400 to £25,200; Higher - £25,200 to £42,000.[22]A tribunal can increase an award by up to 25% if an ACAS Code applies and there has been an unreasonable failure by a party to comply with it.[23]When a tribunal calculates compensation for discrimination, it is obliged to consider awarding interest. If it decides to do so, interest is calculated from the date of the act of discrimination up to the date of the calculation, save for interest on lost wages, where the calculation is made from the middle of that period. The tribunal will then include that interest in the award made.[24]Some cases can lead to an award for loss of pension where the unlawful act (usually dismissal) causes a loss of pension contributions or a reduction in the value of pension benefits. Sometimes it is appropriate to assess the loss based on employer contributions for a claimant with a defined benefit pension if a tribunal finds the claimant would not have remained in employment for very long (‘the simplified approach’). Conclusions Issue 3.1
Conclusions
[25]Mr Islam Choudhry submitted that for the purpose of a weeks’ pay supplemental payments such as bonuses and overtime should be excluded and calculated on the basis of the claimant’s basic hours each week. We conclude that the claimant’s gross contractual remuneration should include the unsocial hours payment that she received for working weekends which was in the nature of a contractual bonus. We therefore the basic award to which the claimant is entitled is £ 879.37 x 12/52 x 7.5 = £ 1521.98. Issue 3.2[26]We make no recommendation. The claimant has not asked us to do so .She has no longer works for the respondent and has no wish to be re-engaged or reinstated to their employment. Issues 3.3 3.4 3.5 and 3.7[27]As a result of the unlawful discrimination the claimant was unfairly dismissed on 7 July 2017.She was paid 5 weeks’ pay in lieu of notice in the sum of £969.69.Had she not been dismissed she would have been on half pay between 12 August 2017 and 8 October 2017.Thereafter between 9 October 2017 and 28 February 2018 ( after which she became fit for work) she would have been on nil pay.[28]Mr Islam Choudhry submitted that there were three alternatives that we should consider, as follows:a. the claimant would have been fairly dismissed on or before 28 February 2018, or if not, she failed to mitigate her financial losses from that date (Position 1)b. she failed to mitigate from 15 June 2018 after she is discharged from her Consultant (Position 2).c. she obtained a promotion with Croner on 1 March 2019 and therefore she would have left the role in any event, or has failed to mitigate since that date (Position 3).[29]We remind ourselves that we found at paragraph 59 of the liability judgment that the claimant had wanted to continue in the employment of the respondent because it provided the benefit of a pension and would have afforded her the opportunity to progress her career within the NHS potentially into a health and safety role. However we conclude she would not have stayed in the role of healthcare assistant indefinitely. Had she not been dismissed we conclude she would have continued to undertake the healthcare assistant role ( as and when she was fit enough to do so) until she had found something which satisfied her career and remuneration aspirations and (since this was not a benefit in the promoted role she was offered and accepted at Croners) whether or not it offered a defined benefits pension scheme . Absent a dismissal on the balance of probability we conclude that her job search would have followed a similar trajectory to that which she undertook after she was dismissed and she would have ceased to have been employed as a healthcare assistant and would have secured alternative employment by 1 March 2019. Position 1[30]The respondent’s argument in relation to position 1 runs like this: if following the appeal on 30 November 2017 the respondent had made the reasonable adjustment of putting the claimant back ‘on the books’ pending an OH report, that report would have been available by no later than mid-January 2018.As we found the claimant was not fit to work until 28 February 2010 ( six weeks later) on the balance of probabilities the OH report would have said either she was not fit for work or may be fit within 6 weeks or the prognosis was unclear. It was likely that if such a report had been obtained the claimant’s employment would have ended ( fairly) then by reason of capability so the claimant suffered no loss after that date.[31]We reject that submission. Even if Mr Islam Choudhry is correct about the putative contents of such a report there was no evidence before us about what Mr Kee (or whoever would have been the decision maker following the appeal) would have done in relation to the claimant’s continued employment.[32]However Mr Islam Choudhry goes on to submit that the claimant has failed to mitigate her loss. She was well enough to do some healthcare assistant work from 1 March 2018, yet she did not apply for any suitable roles. Instead, she applied predominantly for Health and Safety roles. She was trying to replace her Croner and Healthcare Assistant roles with a more senior Health and Safety role but that was not a reasonable step to take, as her recoverable losses were to put her back in the position she would have been in had there been no discrimination. This would have meant that she would have carried on doing the Healthcare assistant role and the Croner role at least until she found something better.[33]We conclude that the approach which the claimant took to mitigate her loss after dismissal was to look to increase her overall salary ,in other words instead of having 2 jobs as she had done in the past ,she tried to get a better paid job ( focusing on health and safety roles) which paid more than the total of her wages for her Croner and health care assistant jobs. She did not try and get another weekend job while working during the week at Croners, for example as a healthcare assistant, a role in which she had experience. We conclude that she thereby failed to take a step that it was reasonable for her to take. However, we do not conclude that her failure to do so was unreasonable. Although she took a different approach there may be more than one reasonable approach for an employee to take to mitigate loss. We conclude that overall the approach the claimant took was reasonable, even if ,in relation to some of the roles for which she applied, her belief that she had the requisite skill set was not reasonable and her aspirations were unrealistic because of the seniority of the role and the higher salary it commanded. The respondent has not provided evidence that there were more junior lower paid jobs available and that it was unreasonable of the claimant not to apply for them. Even if the claimant’s failure to try and get another weekend healthcare assistant or other job was unreasonable the respondent has not provided evidence of such weekend only jobs available prior to April 2021 and that it was unreasonable of the claimant not to apply for them. Position 2[34]We have already found that the claimant was fit for work from March 2018 onwards so her duty to mitigate arose then. Position 3[35]As far as position 3 is concerned Mr Islam Choudhury submits that by having been earning across her two jobs the total of about £30,000 gross. She was offered the promotion to Team Leader at Croner with a salary of £35,000 gross – i.e. more than the combined income of her two previous jobs. Her pattern of job applications had been to find a role to replace her pre-existing Croner role. This had now been achieved and amounted to a break in the chain of causation. On the balance of probabilities, it means that if the claimant had remained in the Healthcare Assistant role, she would likely have resigned from it upon promotion. The Tribunal can be confident of that, because the claimant still did not apply for any healthcare assistant or carer roles at the material time, despite the abundancy of vacancies. Alternatively, for the same reasons, the claimant had failed to act reasonably to mitigate loss.[36]We conclude that having achieved her goal of a salary which paid more than the combined income of her two previous jobs by having been offered and accepted the promotion at Croners, this amounted to a break in the chain of causation or alternatively that by 1 March 2019 the claimant thereby had mitigated her loss. Issue 3.6[37]Although there was no evidence about this in her witness statement there was some evidence available to us about injury to feelings. The claimant had been employed part time in the NHS for 5 years .She had wanted to keep that job (paragraph 59 of the liability judgment).That judgment shows she tried very hard to keep it ,appealing against her dismissal and attending and representing herself at an appeal hearing. In those circumstances there must have been some injury to her feelings when she lost that job. Although dismissal is a one off event ,it is a serious consequence of the unlawful discrimination which occurred. However, there is no evidence of any continuing effect whatsoever on the claimant and in her submissions she did not mount any challenge to Mr Islam-Choudhury’s submission that the award be no more than £4000.We conclude that £4000 is an appropriate award for injury to feelings.[38]Mr Islam-Choudhury submitted that in this case the simplified approach was the correct approach to pension loss. Although she had been referred to Employment Tribunals (England and Wales) -Presidential Guidance Guidance Note 6 :Remedy (which has a section on Pensions Loss and the separate guidance available on this) and had been recommended to read it , the claimant made no submissions about this aspect of her loss. We concluded at paragraph 29 that the claimant would have left her role as health care assistant by 1 March 2019.She was not fit to return to work until 1 March 2018. Given that had she remained in employment she would have had substantial periods of half pay and no pay before that date we consider that her period of loss is ‘relatively short’ and conclude that therefore a simplified approach is the correct approach.[39]As far as interest is concerned we accept Mr Islam -Choudhry’s submission that interest will be payable from the date of dismissal (7 July 2017) to the date of hearing (18 March 2022) @ 8% per annum. This relevant period is 1,715 days. Issues 3.8 to 3.10[40]The ACAS Code of Practice on Disciplinary and Grievance Procedures is designed to help employers employees and their representatives deal with disciplinary and grievance situations .Disciplinary situations include misconduct and /or poor performance but not capability (ill health ) dismissals and the claimant did not raise a grievance. No relevant ACAS Code applies and no uplift can therefore be made.[41]The Recoupment Regulations do not apply. The claimant was not in receipt of state benefits.