Mrs H Potgieter v Lloyds Pharmacy Ltd: 1305862/2020
EMPLOYMENT TRIBUNALS
Case No 1305862/2020Venue Bristol Employment TribunalHearing Thursday 25 November 2021 with all parties attending. 3. The claimant gave evidence. The respondent called the following witness, Anna Snopkowska who gave evidence by video link. 4. I had sight of a bundle of documents totalling 323 pages which was produced by the respondent. Claim 5. The claimant presented a claim by way of a claim form dated 12 May 2020 that she was subject to a detriment by the respondent on the grounds that she had made a protected disclosure. 6. On the 21 October 2021 the respondent wrote to the Employment Tribunal and accepted that the claimant had made protected disclosures to them in her letter of 11 July 2018 and that as a result of these disclosures the respondent had removed her from a list of approved pharmacists used by the respondent to select pharmacists for locum shifts and had thereby subjected the respondent to detriment from 1 January 2020 7. Accordingly, the final hearing was converted to a remedy hearing. 8. The respondent also accepted that the claimant did not cause or contribute to the detrimental treatment by her own actions and that the protected disclosure was made in good faith. 9. The claimant produced a schedule of loss dated 27 May 2021 (pp.61-63), claiming the following from 2 January 2020 to 27 May 2021. The claimant also sought additional weeks to the date of the remedy hearing. The claimant’s claim was based on her working 2 shifts per week at £250 per shift. Loss of earnings, 73 weeks at £500 per week £36,500 Loss of reputation (Defamation) £85,000 Claimant’s costs £1,000 Total: £122,500 List of Issues 10. The agreed list of issues for the remedy hearing were therefore as follows, a. What financial losses has the detrimental treatment caused the claimant? b. Has the claimant taken reasonable steps to replace her lost earnings, for example by looking for another job? c. If not, for what period of loss should the claimant be compensated? d. What injury to feelings has the detrimental treatment caused the claimant and how much compensation should be awarded for that? The Law 11. Where a claimant has suffered a detriment for making a protected disclosure, the tribunal may award financial compensation. 12. The tribunal must award such an amount as it considers is just and equitable having regard to the infringement to which the complaint relates and any loss which is attributable to the act or failure to act. 13. The burden of proving her financial losses is on the claiman
Between
Mrs H PotgieterClaimantLloyds Pharmacy LtdRespondent
Before
Employment Judge MillardIn person for claimantMr Crow (instructed by Counsel) for respondentDate 3 January 2022
REASONS
Introduction
[1]These written reasons should be read in conjunction with the reserved judgment of 25 November 2021. Hearing[2]The hearing was held at Bristol Employment Tribunal on Thursday 25 November 2021 with all parties attending.[3]The claimant gave evidence. The respondent called the following witness, Anna Snopkowska who gave evidence by video link.[4]I had sight of a bundle of documents totalling 323 pages which was produced by the respondent. Claim[5]The claimant presented a claim by way of a claim form dated 12 May 2020 that she was subject to a detriment by the respondent on the grounds that she had made a protected disclosure.[6]On the 21 October 2021 the respondent wrote to the Employment Tribunal and accepted that the claimant had made protected disclosures to them in her letter of 11 July 2018 and that as a result of these disclosures the respondent had removed her from a list of approved pharmacists used by the respondent to select pharmacists for locum shifts and had thereby subjected the respondent to detriment from 1 January 2020[7]Accordingly, the final hearing was converted to a remedy hearing.[8]The respondent also accepted that the claimant did not cause or contribute to the detrimental treatment by her own actions and that the protected disclosure was made in good faith.[9]The claimant produced a schedule of loss dated 27 May 2021 (pp.61-63), claiming the following from 2 January 2020 to 27 May 2021. The claimant also sought additional weeks to the date of the remedy hearing. The claimant’s claim was based on her working 2 shifts per week at £250 per shift. Loss of earnings, 73 weeks at £500 per week £36,500 Loss of reputation (Defamation) £85,000 Claimant’s costs £1,000 Total: £122,500 List of Issues[10]The agreed list of issues for the remedy hearing were therefore as follows,a. What financial losses has the detrimental treatment caused the claimant?b. Has the claimant taken reasonable steps to replace her lost earnings, for example by looking for another job?c. If not, for what period of loss should the claimant be compensated?d. What injury to feelings has the detrimental treatment caused the claimant and how much compensation should be awarded for that?
The Law
[11]Where a claimant has suffered a detriment for making a protected disclosure, the tribunal may award financial compensation.[12]The tribunal must award such an amount as it considers is just and equitable having regard to the infringement to which the complaint relates and any loss which is attributable to the act or failure to act.[13]The burden of proving her financial losses is on the claimant.[14]The tribunal may reduce the amount awarded if it considers that the claimant has failed to mitigate her loss. Section 49(4) Employment Rights Act 1996 imposes a duty on a party to mitigate their losses. The burden of proof for this is on the respondent.[15]A detriment award may also include compensation for injury to feelings.
Background
[16]The claimant worked as a locum pharmacist for the respondent.[17]On 11 July 2018 the claimant made protected disclosures to the respondent. These protected disclosures are set out at pages 20-23 of the remedy bundle.[18]On 2 January 2020 the claimant was informed that she was no longer on the approved list of pharmacists for the respondent. The respondent accepts that this was because of the protected disclosures. Findings on the List of Issues Financial Losses[19]I am unable to assess the losses that the claimant has suffered, as she has presented no evidence to me as to exactly what work she has done in the period from 2 January 2020, nor what income she has received from this work.[20]The claimant had previously worked for the respondent between January to August 2019 at a rate of 0.875 shifts per week at a gross rate of £250 per shift. This equates to gross income of £218.75 per week as opposed to the £500 per week claimed by the claimant from 2 January 2020. This actual amount worked, whilst significant, is a relatively low amount for the claimant to have to replace.[21]The claimant told me that she had been offered work as a pharmacist after the 2 January 2020 and that she had undertaken this work. However, she did not provide any evidence as to how often she undertook that work and what she was paid for it. When she was asked in cross examination to provide this, she stated that she did not have to provide any evidence.[22]I asked the claimant what other work she had undertaken after 2 January 2020 and she informed me that she had spent her time managing both her investment and property portfolios. When I asked her what additional income, she had derived from these as a result of the additional time she had spent on them, she declined to tell me and declined to provide any documentary evidence.[23]The only conclusion I can draw from this refusal by the claimant to provide me with the information about the locum work she undertook after the 2 January 2020 and the additional income from her property and investment portfolios, is that she received such an increase in her income so as to replace her lost income from the respondent. Why otherwise would she have failed to provide me with this information.[24]The claimant was asked in cross examination about applying to other agencies for work as a locum pharmacist. The claimant stated that she had not applied to any other agencies as she didn’t have to do so. I can well imagine that in registering with an agency, they may require a locum to disclose whether they have been refused work by any pharmacies and that having to disclose that she had been removed from the respondents register of approved pharmacists, may have adversely impacted her ability to register with other agencies. However, the claimant did not seek to register with any other locum agencies and she has presented me with no evidence to prove the difficulties that she would have had, had she have chosen to do so. In answering this question, her attitude was that she did not have to do so, as the respondent should pay her for removing her from their approved locum list.[25]As part of the correspondence between the parties and of which I have been provided with copies of, the respondent’s solicitor wrote to the claimant on 16 August 2021 and requested disclosure from the claimant of any employment she undertook from 1 January 2020 and her income from these (pp.210-211). The respondent also informed the claimant of her duty to mitigate her losses, discussed in more detail in the section of mitigation below.[26]The claimant responded by way of an email 20 August 2021 at 13:06hrs (P. 214). The claimant did not provide any disclosure of her employment and income since 1 January 2020. The claimant wrote in response that, ‘HP [claimant] also disputes that she must mitigate losses…LP’s solicitors are insisting that HP, mitigates her losses, but this is negated in case law.’ The claimant sent a further email to the respondent’s solicitors the same day at 13:31hrs (P.216), adding, ‘HP has sent an email today to Rachel Rigg (RR) firmly disputing the need to mitigate losses and has previously quoted case law that will be relied on. Under the present circumstances, HP has no obligation to mitigate loss, thus no disclosure is required, or will be provided.’ [Emphasis added][27]It is important to separate out the issue of what losses the claimant has suffered from any failure to mitigate those losses. However, what is clear from the correspondence quoted above is that the claimant did not see the need to provide any disclosure with regard to her financial losses. This was as confirmed by her to me in the hearing.[28]This failure by the claimant to provide me with any evidence has left me in a position where I am unable to calculate what losses she has actually suffered. The only inference I can draw from her failure to provide information of the income she earned from the locum shifts she worked after 2 January 2020 and the income from her property and investment portfolios is that this income replaced the income she lost from the respondent. Therefore the claimant has failed to discharge her duty to prove her losses. Duty to Mitigate[29]In addition to the failure of the claimant to prove her losses, the respondent has satisfied me that the claimant has failed to mitigate her losses.[30]Section 49(4) Employment Rights Act 1996 imposes a duty on a party to mitigate their losses. The claimant has been made aware of this duty. In the Case Management Order of 13 April 2021, Employment Judge Matthews sets out under remedy at para 4.1 (P.45), that the tribunal would consider whether the claimant has taken reasonable steps to replace her lost earnings, by for example looking for another job.[31]The claimant accepted in evidence that she had been made aware in the Case Management Order that the tribunal would consider at the remedy stage whether she had taken reasonable steps to replace her earnings. However, whilst she accepted that she had been made aware of this, she told me that she did not think it was relevant to disclose any material with regard to mitigating her losses.[32]Additionally, in evidence to me, the claimant told me that she was not under a duty to mitigate her losses. When I explained to her that she was, she informed me that she was not under any duty to mitigate her losses as she was the victim. She is wrong about this. Whilst her feelings of victimization are understandable, they have unfortunately led her to the incorrect position that she does not have to mitigate her losses. When I informed the claimant of this, she informed me that she would appeal my decision, this being prior to even receiving my judgment in this case. The claimant of course has a right of appeal, but this does not change the duty that she has to mitigate her losses.[33]This denial of her duty to mitigate her losses was the same position that the claimant adopted in correspondence with the respondent as stated by her in her emails of 20 August 2021, ‘HP also disputes that she must mitigate losses…LP’s solicitors are insisting that HP, mitigates her losses, but this is negated in case law.’ (P.216) and ‘HP has sent an email today to Rachel Rigg (RR) firmly disputing the need to mitigate losses and has previously quoted case law that will be relied on. Under the present circumstances, HP has no obligation to mitigate loss, thus no disclosure is required, or will be provided.’ [Emphasis added][34]The claimant has both said in written correspondence to the respondent and in evidence to me that she is not under a duty to mitigate her losses. The only logical inference from her written and oral statements is that she has not in fact mitigated her losses. As such, even if I were able to calculate the financial loss that the claimant had suffered, it would be appropriate to reduce this to zero for her complete failure to mitigate her losses. Injury to Feelings[35]The claimant’s schedule of loss, includes an award for defamation. I have no power to make an award for defamation.[36]However, I must consider what injury to feelings the detrimental treatment caused the claimant and how much compensation should be awarded for that.[37]The general principles that apply to assessing an appropriate injury to feelings award have been set out by the EAT in Prison Service v Johnson [1997] IRLR 162: Injury to feelings awards are compensatory and should be just to both parties. They should compensate fully without punishing the respondent. Feelings of indignation at the respondent’s conduct should not be allowed to inflate the award; Awards should not be too low, as that would diminish respect for the policy of anti-discrimination legislation. Similarly, awards should be restrained, as excessive awards could be seen as the way to untaxed riches; Awards should bear some broad general similarity to the range of awards in personal injury cases; Tribunals should take into account the value in everyday life of the sum they have in mind, by reference to purchasing power or earnings; Tribunals should bear in mind the need for public respect for the level of awards made.[38]The matters compensated for by an injury to feelings award encompass subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression.[39]In my judgment this case merits an award in the middle Vento band. This is not one of the most serious cases, justifying an award in the top band, but the claimant is a pharmacist, who having made protected disclosures to the respondent found that as a consequence of these protected disclosures, she was removed from their list of approved locum pharmacists, such that she was no longer able to obtain locum shifts from them. Accordingly, I assess this case as falling towards the bottom of the middle band, such that an award of £12,000 for injury to feelings is appropriate.
Conclusions
[40]The claimant has failed to provide evidence of her financial losses as a result of the detrimental treatment.[41]The claimant has failed to mitigate her losses.[42]The respondent must pay the claimant £12,000 for injury to feelings.
Conclusions
[1]The claimant has failed to prove her financial losses. The claimant has failed to mitigate her losses.[3]The respondent must pay the claimant £12,000 for injury to feelings.
Conclusions
[1]The claimant has applied for a reconsideration of the judgment originally sent to the parties on 17 January 2022 further to receipt by the claimant of written reasons which were sent to the parties on the same date (“the Judgment”). The grounds are set out in a document headed “Application for Reconsideration of Employment Tribunal Judgement” (sic), sent to the tribunal office by email on 25 January 2022. Unfortunately, due to an administrative error by the Employment Tribunal, this application has only recently been referred to me.[2]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under Rule 71 an application for reconsideration under Rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received within the relevant time limit.[3]The grounds for reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.[4]The grounds relied upon by the claimant are set out in her application for reconsideration and I have summarised these as follows, 4.1. The remedy hearing being conducted on 25 November 2021, judgment was not received by the claimant until 14 January 2022 requiring her to make an application for written reasons, which were not provided to her until 17 January 2022. These were readily available and subjected the claimant to further detriment in having to request them. 4.2. The judgment was given more than 28 days after the remedy hearing, showing a clear and unreasonable stance of ensuring the interests of justice. 4.3. The respondent breached case management orders, specifically, 4.3.1. the respondent increased the bundle to 73 pages to include evidence to show that the claimant could have mitigated her losses. 4.3.2. the respondent was to amend their response by 25 June 2021, however this was not done until 21 October 2021. 4.4. The claimant was found to have been unfairly dismissed due to a protected disclosure, but the respondent did not admit this in their amended response. 4.5. The claimant represented herself and was not placed on an equal footing with the respondent. Considerable time was given to the respondent at the remedy hearing in order to assist them. 4.6. The tribunal failed to acknowledge the significant public interest in this case and have failed to protect the public because the tribunal failed to ensure the interests of justice. 4.7. The claimant did prove her financial losses. 4.8. It was unreasonable for the respondent to seek the claimant’s tax returns as the claimant derived income from several pharmacy owners and not just the respondent. 4.9. The respondent did not prove what shifts could have been offered to the claimant. 4.10. The COT3 agreement was not reviewed. 4.11. Another pharmacy chain no longer offered the claimant any shifts causing her to suffer ‘unmeasurable loss as a result.’ 4.12. The respondent acted unreasonably, and £3,500 costs should have been awarded to the claimant. 4.13. The tribunal ignored the case of Cooper Contracting Ltd v Lindsey and the claimant does not have to prove that she mitigated her loss. 4.14. The claimant is self-employed and does not want to take up permanent employment with any other company. The claimant had no other option but to rely on her property portfolio and investments. 4.15. The claimant does not have to take all reasonable steps to mitigate her loss. 4.16. The award for injury to feelings does not reflect the responsibility the claimant has as a pharmacist and the way she was treated by the respondent resulting in the claimant suffering a long period of harm. 4.17. The claimant seeks to put new information before the tribunal that was not before the remedy hearing, namely that the claimant alleges that the respondent is making fraudulent declarations to NHS Providers and the Clinical Commissioning Group (CCG), that they are unable to source pharmacists for branches. However, the claimant has been unfairly removed from the respondent’s list of approved pharmacists and remains so. The implication being, that she would be available to work as a pharmacist at these branches, and therefore, that the respondent could source a pharmacist if they chose to employ her. Interests of Justice[5]Earlier case law suggests that the interests of justice ground should be construed restrictively. The Employment Appeal Tribunal (“EAT”) in Trimble v Supertravel Ltd [1982] ICR 440 decided that if a matter has been ventilated and argued then any error of law falls to be corrected on appeal and not by review. In addition, in Fforde v Black EAT 68/80 (where the applicant sought a review in the interests of justice under the former Rules which are analogous to a reconsideration under the current Rules) the EAT decided that the interests of justice ground of review does not mean …that in every case where a litigant is unsuccessful, he is automatically entitled to have the tribunal review it. Every unsuccessful litigant thinks that the interests of justice require a review. This ground of review only applies in the even more exceptional case where something has gone radically wrong with the procedure involving a denial of natural justice or something of that order.[6]More recent case law suggests that the "interests of justice" ground should not be construed as restrictively as it was prior to the introduction of the "overriding objective" (Rule 2). This requires the tribunal to give effect to the overriding objective to deal with cases fairly and justly. As confirmed in Williams v Ferrosan Ltd [2004] IRLR 607 EAT, it is no longer the case that the "interests of justice" ground was only appropriate in exceptional circumstances. However, in Newcastle Upon Tyne City Council v Marsden [2010] IRLR 743, the EAT confirmed that it is incorrect to assert that the interests of justice ground need not necessarily be construed so restrictively, since the overriding objective to deal with cases justly required the application of recognised principles. These include that there should be finality in litigation, which is in the interest of both parties. Delay in issuing Judgment and Written Reasons[7]Whilst greater than 28 days after the hearing on 25 November 2021, the delay in the written reasons of 3 January 2022 being sent to the claimant on 17 January 2022, this does not of itself give rise to an interests of justice grounds to reconsider judgment.[8]In reaching its decision the tribunal took sufficient time as was required to fully consider all of the witness evidence, the material before it as well as the submissions of the parties. Compliance with Case Management Orders[9]The respondent amended their response to accept that the claimant had made protected disclosures. This was in favour of the claimant and the issue was not required to be determined by the tribunal. Accordingly, there is no interest of justice ground arising to reconsider judgment.[10]Both parties were invited during the hearing to refer the tribunal to the documents within the bundle that they considered relevant. That the bundle included material to show that the claimant could have mitigated her losses, was relevant to the issues to be determined by the tribunal, although the claimant would no doubt have preferred for such material not to have been before the tribunal. It would not have been practical nor would it have been appropriate for the tribunal to have asked the parties to remove additional pages from the bundle or arbitrarily removed later pages. This would only have led to further delay and a potentially aborted hearing, when the case could be heard and concluded, which was in the interests of both parties, simply by the parties referring the tribunal to the documents they wanted to be considered.[11]No interest of justice ground arises to reconsider judgment. Unfair Dismissal[12]In correspondence of 21 October 2021, the respondent accepted that the claimant had made protected disclosures and had been removed from a list of approved pharmacists. Accordingly, there was no need for this issue to be litigated at the hearing on 25 November 2021 and the hearing could proceed solely to determine the issue of remedy.[13]That the respondent conceded this only on 21 October 2021 does not provide any interest of justice ground for reconsideration of judgment. Both parties were aware that the only issue to be determined on 25 November 2021 was remedy and there was no unfairness to the claimant in this. The claimant had over a month in which to prepare for a remedy hearing.[14]No interest of justice ground arises to reconsider judgment. Claimant as a Litigant in Person / Time Afforded to the Respondent[15]The claimant was not legally represented at the hearing, whilst the respondent was represented by counsel. The hearing commenced at 10:20hrs.[17]The respondent conceded that the claimant’s protected disclosure was made in good faith and that her conduct did not contribute to her dismissal.[18]The purpose of the remedy hearing was explained to the claimant and it was acknowledged that she was a litigant in person. In dealing with the claimant as a litigant in person, the tribunal kept in mind chapter 1 of the Equal Treatment Bench Book.[19]The structure of the hearing was explained to the claimant. That she would give evidence on oath first and be asked questions by the respondent. The process would be reversed and the respondent would call their witness with the claimant asking her questions. Once the evidence was completed, the tribunal would hear submissions from the both the respondent and the claimant as to the decision on remedy.[20]The claimant was then provided with time to compose herself before giving evidence and a break was taken between 10:40hrs and 11:02hrs.[21]The claimant gave evidence from 11:03hrs until 12:13hrs. The claimant confirmed her statement on oath, and answered questions from both the respondent’s counsel and the tribunal.[22]The respondent called their witness Anna Snopkowska at 12:34hrs and having confirmed her statement on oath the respondent asked questions in cross examination until 13:10hrs.[23]It was explained to the claimant that submissions would be heard after the lunch break and that the respondent would go first, solely in order to assist the claimant to see how submissions were made. It also provided her with additional time to consider her submissions.[24]The hearing restarted after the lunch break at 14:14hrs with the respondent making submissions on remedy.[25]A break was taken between 15:05hrs and 15:15hrs to allow the claimant time to consider her submissions in light of the respondent’s submissions.[26]The claimant commenced her submissions at 15:15hrs and a time limit was placed on her submissions of 16:00hrs, however, she was permitted to continue until 16:05hrs to conclude her point. Therefore, both the claimant and the respondent were afforded almost identical time to make submissions. This time also coincided with the end of the sitting day, the remedy hearing having been listed for one day with the agreement of the parties that it would be concluded in a day. Judgment was reserved so that the tribunal had sufficient time to deliberate.[27]As far as was possible the claimant was placed on an equal footing with the respondent and additional time was not given to the respondent to assist them. Both parties were given near identical time to make submissions. No interest of justice ground arises to reconsider judgment. Financial Losses / Duty to Mitigate[28]The matters raised by the claimant in her application were considered in the light of the evidence presented to the tribunal before it reached its decision. The factual and legal basis for the tribunal’s decision is set out in the statement of reasons. All the material placed before the tribunal by the parties, was considered. No interest of justice ground arises to reconsider judgment. Award for Injury to Feelings[29]The award for injury to feelings reflected the claimant’s role as a pharmacist, the public interest disclosures, and the manner in which she was treated by the respondent. The sum awarded is intended to compensate the claimant for the hurt and distress she suffered as a consequence of the respondent’s actions.[30]The determination of such an award is not a science. The level of the award was determined by the tribunal having considered all the evidence and by reference to the Vento bands.[31]No interest of justice ground arises to reconsider judgment. Fresh Evidence[32]The test for whether new evidence should be admitted is set out in Ladd v Marshall [1954] 3 All ER 745. The test is whether the evidence could have been obtained with reasonable diligence for use at the original hearing; whether it is and would probably have had an important influence on the hearing; and whether it is apparently credible. However, as the EAT made clear in Outasight VB Ltd v Brown [2015] ICR D11, reconsideration may be permitted on the basis of fresh evidence not meeting the Ladd v Marshall test, but where it is in the interests of justice to do so.[33]In her application for reconsideration the claimant states that she has provided new evidence, she has not in fact done so. There is no evidence provided by the claimant of any declarations by the respondent to either NHS providers or the CCG that they are unable to source pharmacists for their branches let alone any evidence that such declarations are ‘fraudulent’. The claimant’s submission appears to be that as she was removed by the respondent from their register and is available to work, any such declarations by the respondent that they cannot source pharmacists must be false. Accordingly, both the test set out in Ladd v Marshall does not apply, and the back stop of permission where it is in the interests of justice to do so set out in Outasight, does not apply, as there is no new evidence to consider. Costs[34]By Rule 76(1) a tribunal shall consider whether to make a costs order, where it considers that a party has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted.[35]The respondent accepted that the claimant had made protected disclosures. This was done in advance of the final hearing and in communication to both the claimant and the tribunal. The final hearing was therefore converted to a remedy hearing saving both the tribunal and the parties, time, and costs. There has been no evidence before the tribunal that the respondent acted vexatiously, abusively, disruptively, or otherwise unreasonably in the conduct of the proceedings.[36]The claimant understandably does not agree with the respondent’s decision to initially contest the claim, however, there is nothing procedurally wrong in them doing so. No doubt most claimants would regard the decision of a respondent to contest a claim as being unreasonable especially when they are successful. However, this is the nature of litigation where two parties cannot agree, and it falls to a tribunal to decide an issue. Such a determination in the favour of one party does not automatically give rise to a claim for costs in favour of the successful party, except where it would be in accordance with Rule 76(1). Such grounds do not exist in this case.[37]Accordingly, for the reasons that I have set out above, I refuse the application for reconsideration pursuant to Rule 72(1), because there is no reasonable prospect of the Judgment being varied or revoked.