Employment Judge W BeardMr Manley (instructed by Counsel) for claimantMr Williams (instructed by Counsel) for respondentDate 28 November 2019
JUDGMENT
[1]The claimant’s claim that she was subjected to detriment on the ground of having made a protected disclosure pursuant to sections 47B and 48 of the Employment Rights Act 1996 is well founded.[2]The claimants claim of sex discrimination pursuant to section 13 of the Equality Act 2013 is not well founded and is dismissed.[3]The claimant’s claims of maternity discrimination, race discrimination, breach of contract and unlawful deduction of wages are dismissed upon withdrawal.[4]This matter will be set down for a telephone preliminary hearing to give directions for the preparation towards a remedy hearing.
REASONS
[1]The Tribunal was provided with a bundle of documents in excess of 400 pages in addition further documents were introduced in the course of the hearing. However, the Tribunal was only referred to a small proportion of those documents during the course of the hearing.[2]The claimant gave oral evidence. The respondent called oral evidence from: Mrs E Anyadike; Mrs Sonia Patel, Mrs I Williams and Dr Mark Waters.[3]The claimant’s claim is that she suffered detriment because she had made a public interest disclosure. The claimant contends that she made a qualifying disclosure by raising health and safety/legal obligation issues about the approach to sterilisation of equipment. The claimant identifies, termination, the manner of investigation and seeking to justify termination as detriment.[4]The respondent contends it terminated the claimant’s contract on the grounds of conduct. The respondent contends that there was no qualifying disclosure. In closing submissions the respondent contended, alternatively, that there was a course of conduct which led to the claimant’s dismissal cumulatively.
The facts
[5]The tribunal must express, with regret, that, apart from Sonia Patel, we found that the claimant and the other witnesses for the respondent did not give reliable evidence and we had significant doubts as to their credibility in parts. Accordingly, we have, in the main, relied on the documents we were taken to as a source of evidence for our conclusions.[6]The claimant worked at the respondent dental practice subject to a contract which both parties are content to accept means that she is a worker within the meaning given in the Employment Rights Act 1996 and the Equality Act 2010. For the purposes of this judgement we shall refer to this as the claimant’s employment and the respondent as her employer.[7]The respondent is a dental practice. Dr Waters is the senior Dentist and owns the respondent, he also owns a care facility. The claimant is a qualified Dentist who was also seeking to continue post graduate education along with her role with the respondent. The respondent engaged the claimant to be a Dentist in its practice. The claimant began her employment on 22 July 2016 and the contract was terminated on 22 June 2017. The respondent received a telephone call from the claimant’s previous employer indicating that the employer considered the claimant problematic. The respondent ignored that information and brought the claimant into the practice in any event.[8]In November 2016 an issue arose about the claimant maintaining records. A dental nurse had reported that the claimant had incorrectly recorded treatment on a dental record. Dr Waters arranged a meeting with the claimant. After the claimant had been invited to the meeting but before the meeting took place Dr Waters was sent an email about the claimant’s conduct. The email reported that the claimant in discussion with a dental nurse had said that “someone had dobbed her in”. The report of the conversation set out that the claimant had identified the person she thought responsible for reporting her and that the claimant had said she would take that person down with her.[9]There is a dispute as to when the meeting took place on 21 or 23 November 2016. The claimant contends the 23 November was the date of the meeting. We reject that evidence; the meeting is shown by contemporaneous emails to have taken place on 21 November (p. 52). The claimant also contends that the notes of the meeting we have been shown were not contemporaneous but recorded as later recollections. An email shows (p.54a) that minutes, at least in an early draft form, were in preparation on 23 November 2016; in our judgment the minutes reflect the matters discussed at the meeting. The claimant in evidence did not dramatically differ from the recorded elements. We also come to this conclusion because of the date of the email and the fact that the notes indicate Dr Waters recommending a course for the claimant to undertake and he reminded the claimant of that issue in the email (p.52). We consider that the claimant’s evidence that she was not sent the minutes is likely to be correct.[10]The meeting did not generally deal with record keeping, its initial purpose, but concentrated on the claimant’s relationships with the dental nursing staff. The notes indicate that the claimant admitted some fault in letting off steam when talking to the nurses.
The Law
[11]In the early months of 2017, the claimant began treating her then boyfriend (now husband) at the practice, with four treatments in total. Some of the treatment was medical and some cosmetic. The medical information was recorded fully, the cosmetic information less so. The claimant admitted (in a meeting which we deal with below) that the notes recorded at the practice about this treatment were not adequate. The claimant informed us that she had sent the relevant information, not recorded in the notes, to the RAF dentist with whom Mr Davies was registered. Dr Waters was aware of this failure in record keeping soon after the third appointment, however he decided to do nothing about it at that stage an issue we deal with further below.[12]In March 2017 the claimant raised a complaint about a particular dental nurse (referred to hereafter as nurse A). The complaint was that the nurse had informed the claimant that she ordered a particular composite for fillings when she had not done so. Nurse A also raised a grievance in relation to this as to the way in which the claimant approached the matter with her. It appears that despite discussions there was no formal resolution in respect of either the matter raised by the claimant or the grievance made against her.[13]On 5 April 2017 the claimant raised an issue about sterilisation of equipment involving nurse A (p. 65). A meeting was held between the claimant and Isobel Williams. The claimant raised many complaints about the conduct of nurse A at this meeting. However, the claimant raised the following complaint specifically: the claimant had instructed nurse A to sterilise a dental mirror using a piece of equipment called an autoclave, nurse A had not sterilised the mirror in that way but had, instead, cleaned the mirror with a sterilising wipe. On the 10 April 2017 the issue was discussed with nurse A at a meeting with Isobel Williams. At that meeting it appeared that nurse A admitted not following the instruction the method of sterilisation. In evidence both the claimant and Dr Waters indicated that if such an instruction is given to a dental nurse the instruction should be followed by the nurse. It was accepted by the respondent that the matters raised by the claimant were serious. It was specifically accepted that the claimant could delegate responsibilities for sterilising equipment to nurse A if she provided appropriate instructions (p. 220).[14]The respondent did not accept that the claimant’s complaint raised health and safety issues. The tribunal found Dr Water’s evidence on this particularly troubling. He accepted that sterilisation of equipment was to prevent the danger of cross infection. He accepted that these were standards set down by a professional body to avoid such dangers of cross infection. However, he then went on to say, when it was put to him that if such cross infection occurred the outcome could potentially be serious, that there was no real risk. He modified his evidence in a number of ways when asked questions on this. For instance, he agreed that the risk of infection would be greater if an extraction was undertaken, but then qualified that by saying the incident in question did not involve an extraction. We were particularly concerned to discover that nurse A had recently been appointed to have overall responsibility for ensuring sterilisation standards but, according to Dr Waters, this did not concern him particularly in respect of this incident. Our overall conclusion was that Dr Waters was engaged in an attempt to obfuscate issues when he gave evidence on this. In our judgment the claimant was clearly providing a complaint as to the proper methods of sterilisation and as such health and safety was at the heart of that issue.[15]On the 11 April 2017 Isobel Williams approached nurse A in the staff room. When asked by Isobel Williams why she appeared subdued nurse A made several allegations against the claimant. A meeting was held with the claimant on 12 April 2017 no details of the allegations were provided to the claimant at this meeting other than they related to nurse A and were of race and religious discrimination. The claimant indicated her view that the grievance raised was a direct response to the claimant having raised issues about nurse A’s practice.
Analysis
[16]The claimant was called to a further meeting on 13 April 2017 with Mrs Anyadike who was appointed by the respondent to investigate matters. At this meeting the specific allegations were put to the claimant and she provided a response to them.[17]There is a dispute as to whether the claimant agreed to the race allegations being dealt with separately and before the practice allegations made against nurse A. There are notes on the 12 April meeting which tends to indicate that the claimant endorsed such an approach (pp. 71 and 74). However, it is also clear that the claimant was seeking a different approach by the 13 April meeting when the specific allegations had been put to her (p. 78). In our judgment there was never a true meeting of minds on the approach to be taken to dealing with matters.[18]The only step taken by the respondent in investigating this matter was to hold a joint meeting with the claimant and Nurse A. It is unclear what the purpose of the meeting was as it would appear that neither the claimant or Nurse A had agreed to the meeting as mediation for example. The meeting was not a success either as mediation or as investigation. The respondent then contacted the police reporting the claimant on the basis of the allegations from Nurse A. It appears that this was done without the involvement or permission of Nurse A. The respondent then appears to have put all matters on hold.[19]The claimant began looking for work elsewhere whilst continuing to work for the respondent. She contends that she was offered employment which was withdrawn. The claimant contends this is as a result of the respondent providing information to undermine her application. Her evidence is that she was told that the Local Health Board had informed the prospective employer about a police investigation into racism and following this the offer of employment was withdrawn. The tribunal is unable, on the basis of this evidence, to say who informed the Local Health Board. The issues had been reported to the police and was known to the respondent, the source could have been from either. We view this as the claimant interpreting minimal evidence into a fact, i.e. that the respondent had provided this information directly. This impacts on our view of the reliability of the claimant’s evidence.[20]On the 10 June 2017 the claimant had been speaking to colleagues in the staff room about a board game that she had played the previous weekend. It is clear from the evidence that this board game was very unsavoury and involved creating statements by combining elements of those statements on two groups of cards. The resulting completed statement would be seen as very offensive. It is apparent that some members of the respondent’s staff were disturbed by this and, although no formal complaints were made, raised the issue with the management of the respondent. The respondent, as a result, conducted an investigation into these matters. Following the investigation the claimant was asked to attend a meeting with Dr Waters.[21]Dr Waters had a short conversation with the claimant in the garden on 21 June 2017. The claimant contends that in this conversation Dr Waters became aware the claimant was pregnant. The claimant’s position is that she told Dr Waters that she would discuss her health condition with Dr Waters in the coming months. Her view that Dr waters understood this to relate to pregnancy as he gave her “a look of realisation”. Dr Waters has no recollection of this conversation, however he does say, as is common ground, that the practice was aware of the claimant having a long-term health condition in any event. The claimant contends that when she had become aware that she was pregnant and had told some colleagues and had told them to keep the matter confidential but that she believes they did not. Ms Patel was one of the individuals the claimant told, she was clear in evidence that she had kept the issue confidential. In our judgment there is insufficient evidence to conclude that the respondent and particularly Dr Waters was aware the claimant was pregnant. A cryptic comment about a health condition does not naturally lead to a belief in pregnancy especially when it is known that the claimant had a pre-existing condition. We do not consider that there is any evidence to support the view that something the claimant had said in confidence was transmitted to the respondent. We view this as the claimant’s tendency to fill in gaps in evidence with highly speculative conclusions again causing doubts on her reliability.[22]On the 22 June 2017. At this meeting Dr Waters raised the issue of the claimant treating Mr Davies and not keeping the appropriate records. Dr Waters was asked why this issue had not been raised before with the claimant and why, in particular, was it being raised at this point. His answers were that he had let the matter fall behind because of various issues including his own appearance before the General Dental Council. We found that evidence unconvincing for a number of reasons. Firstly, record keeping was part of the complaints levelled against him by the GDC. Secondly, the meeting was arranged to deal with the comments made by the claimant, we can see no connection with that issue which would remind Dr Waters of the previous failure in record keeping. Thirdly, Dr Waters in his evidence was keen to point out the importance of record keeping in the professional rules governing the Dental profession, however those rules refer to “contemporaneous” recording. Dr Waters could not explain why this failure to record contemporaneously was so important in June when it had not been when he was aware about it in February. We did not consider his evidence credible in this regard. In our judgment the records were raised as an issue because the respondent had specific evidence which it could rely on rather than the evidence of opinion which might affect the strength of other complaints and therefore this was a more robust means of justifying the termination of the claimant’s contract.
The Law
[23]Section 4 of the Equality Act 2010 provides: The following characteristics are protected characteristics— sex;[24]Section 13 of the Act provides: (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.[25]In respect of direct discrimination, the Tribunal has to consider whether the Claimant’s treatment has arisen out of her gender (in this case because she was pregnant)? The tribunal is required to examine evidence in a broad way in dealing with issues of discrimination. We are not concerned with an overt motive (whilst such a finding would obviously be relevant) so much as examining the mental processes (conscious or subconscious) of those alleged to have unlawfully discriminated. We must consider the approach in Anya –v- University of Oxford & Anr. [2001] IRLR 377 which demonstrates that it is necessary for the employment tribunal to look beyond any particular act or omission in question and to consider background to judge whether the protected characteristic has played a part in the conduct complained of. This is particularly important in establishing unconscious factors in discrimination. Shamoon -v- Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285 indicates that the tribunal in examining whether there has been less favourable treatment compared to a real or hypothetical comparator should note that a bare difference in treatment along with a difference in the protected characteristic is insufficient. It is always necessary to find that the protected characteristic is an operative cause of the treatment. In Zafar v Glasgow City Council [1998] IRLR 36 it is made clear that unreasonable treatment should not necessarily lead the employment tribunal to a conclusion that the treatment was due to discrimination. Unfairness does not, even in an employment situation, establish discrimination of itself. Further a tribunal is not entitled to draw an inference from the mere fact that the employer has treated the employee unreasonably see Bahl v The Law Society and others [2004] IRLR 799.[26]The Employment Rights Act (ERA)1996 provides: 26.1. In section 43A: (i)n this Act a “protected disclosure” means a qualifying disclosure (as defined by section 43B) which is made by a worker in accordance with any of sections 43C to 43H. 26.2. In section 43B: (1)In this Part a “qualifying disclosure” means any disclosure of information which, in the reasonable belief of the worker making the disclosure is made in the public interest and, tends to show one or more of the following— (d)that the health or safety of any individual has been, is being or is likely to be endangered,[27]In Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436 it is made clear that when considering whether there has been a disclosure the proper test is whether there is “sufficient factual content and specificity such as is capable of tending to show” the claimant is raising one of the matters protected e.g. health and safety. 27.1. In Fecitt & Ors v NHS Manchester EWCA Civ 1190 Elias LJ held that liability arises if the protected disclosure is a material (more than trivial) factor in the employer's decision to subject the claimant to a detrimental act. Dealing with an argument related to the applicability of interpretation of discrimination law this area he considered that the reasoning in EU analysis is that unlawful discriminatory considerations should not have any influence on an employer's decisions and that the same principle is applicable where the objective is to protect whistleblowers. 27.2. This creates an anomaly with the situation in unfair dismissal where the protected disclosure must be the sole or principal reason before the dismissal is deemed to be automatically unfair. 27.3. The PID provisions also raise issues on the burden of proof. In respect of detriment there is a reversal of the burden of proof once a claimant has proved that they have made a protected disclosure and suffered a subsequent detriment, section 48(2) Employment Rights Act (ERA) 1996 places the burden of proof on the respondent to prove, on the balance of probabilities, that the treatment was “in no sense whatsoever” on the ground of the protected disclosure. 27.4. In our judgment, following the above, the tribunal will have to consider whether the alleged detriments were on the grounds of the claimant having made a disclosure. Taking account of the mental processes (conscious or unconscious) of the decision maker.[28]The meaning of public interest has been dealt with by the court of appeal in Chesterton Global Ltd & Anor v Nurmohamed & Anor (Rev 1) [2017] EWCA Civ 979. The case indicates that the tribunal must look at the character of the disclosure in deciding whether the claimant could reasonably believe it to be in the public interest. It is suggested that the following four elements could assist in deciding that character(a) the numbers in the group whose interests the disclosure served;(b) the nature of the interests affected and the extent to which they are affected by the wrongdoing disclosed – a disclosure of wrongdoing directly affecting a very important interest is more likely to be in the public interest than a disclosure of trivial wrongdoing affecting the same number of people, and all the more so if the effect is marginal or indirect;(c) the nature of the wrongdoing disclosed – disclosure of deliberate wrongdoing is more likely to be in the public interest than the disclosure of inadvertent wrongdoing affecting the same number of people;(d) the identity of the alleged wrongdoer- the larger or more prominent the wrongdoer (in terms of the size of its relevant community, i.e. staff, suppliers and clients), the more obviously should a disclosure about its activities engage the public interest" . However, the court of Appeal also indicates that care ought to be taken in the approach with the tribunal considering considering all the circumstances of the disclosure.[29]Detriment is to be considered in the same manner as it would for discrimination cases i.e. that a reasonable worker would or might take the view that he had been disadvantaged in the circumstances in which he thereafter had to work Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] IRLR 285. There is support for this approach to be found in Pinnington v The City & County of Swansea and Anr. UKEAT/0561/03 where HHJ McMullen refers to Shamoon in dealing with the issue of detriment (paragraph 81) albeit obiter and also in Dr I M Korashi V Abertawe Bro Morgannwg University Local Health Board UKEAT/0424/09[30]There must be a link between the detrimental treatment and the disclosure. Also, this must be “deliberate” in the sense of a conscious or unconscious motivation on the part of the respondent London Borough of Harrow v Knight [2003] IRLR 140.
Analysis
[31]Dealing first with sex discrimination. Having found that the respondent was not aware of the claimant’s pregnancy we cannot conclude that pregnancy was an operative cause of the decision to terminate the claimant’s contract. On that basis the claimant’s claim, which is based on a discovery of her pregnancy as the motivation for the termination of her contract does not cross the first hurdle. In our judgment the claimant’s claim of sex discrimination is not well founded and is dismissed.[32]It seems clear to us that, in complaining about the failure of Nurse A to sterilise equipment as instructed the claimant made a qualifying disclosure which was a protected disclosure.[33]The disclosure clearly covered potential health and safety issues. 33.1. In the context: Nurse A was the sterilisation lead at the practice: the claimant was indicating Nurse A had failed to follow a specific instruction on a sterilisation process: in the context of a dental surgery sterilisation of equipment is part of the protocols which have to be followed: such protocols are imposed to protect against cross contamination. 33.2. Both parties agreed that the dentist’s instruction on sterilisation should be followed. 33.3. Therefore, when the claimant raised the matter of a failure to follow an instruction it carried with it the context of the health and safety matters with which sterilisation is concerned. 33.4. There was a description of a factual circumstance sufficient to amount to amount to “information” in the context. Those factual circumstances which the claimant reasonably believed related to an issue of health and safety.[34]The claimant was reasonable in believing this disclosure was in the public interest. 34.1. We cannot accept the respondent’s submission that the risks were so low that the claimant could not have believed she was raising these matters in the public interest. Upholding protocols designed to protect patients from cross contamination obviously has a public interest element. 34.2. The person complained about was the person with responsibility for sterilisation, this places her in category that is different from the general dental nurse. 34.3. The action, on the claimant’s account was deliberate. Again, this raises the issue above that of an accidental failure. 34.4. In our judgment the disclosure was in the reasonable belief of the claimant in the public interest.[35]Termination of the claimant’s contract is a detriment in our judgment. Any reasonable person would consider the ending of a contract in this way as disadvantageous to them.[36]There is sufficient evidence for us to consider that there is some connection with the disclosure and the detriment. 36.1. The respondent was, in our judgment, becoming dis-enamoured of the claimant from, at the latest, March 2017 onwards when the claimant raised issues about Nurse A and the issue of ordering composite for fillings. It is clear to the tribunal that given the experience in November 2016 that the respondent considered the claimant had problems with the professional approach to be taken to workplace relationships which was gradually reinforced over time. 36.2. The disclosure made in April led to the claimant becoming, in the respondent’s estimation, more problematic. It is clear that race discrimination complaints, whatever their veracity, were connected with the claimant raising the disclosure. We take the view that the respondent understood this connection.[37]In those circumstances we consider that the claimant has proven disclosure and a detriment with sufficient connection so that the burden is placed on the respondent to demonstrate that the termination was in no way whatsoever connected with the disclosure. In our judgment the respondent has not demonstrated that the termination of the contract was for record keeping. We have no doubt that the workplace relationships, the fact that discrimination claims had been raised, the general problem with the claimant talking about the unsavoury board game all played a part in the respondent’s decision. However, we are not able to conclude that the disclosure was in no way whatsoever a reason for this detriment. The respondent has not provided us with the genuine reason in the evidence given and although we conclude that the underlying reason was multifactorial we cannot exclude the claimant making the disclosure as part of that.[38]Given those finding we consider that the claimant’s claim of detriment on the grounds of having made a public interest disclosure is well founded. There shall be a further hearing to consider the appropriate remedy in this case.[1]The claimant was represented by Mr Manley the respondent by Mr Bromige both of counsel. This judgement should be read in conjunction with the tribunal’s judgment of February 2019. The tribunal is to consider the appropriate remedy for our previous findings of detriment on the grounds of the claimant having made a protected disclosure. The tribunal heard oral evidence from the claimant on her own behalf. We were provided with a bundle of documents, running to 169 pages, we were also referred to some documents used in the substantive hearing.[2]The following issues were identified by the parties as requiring resolution by the tribunal. 2.1.1. Should there be a deduction from any award on the grounds that the claimant contributed to the termination of her contract. 2.1.2. Is it inevitable that the claimant’s contract would have been terminated lawfully in any event? Mr Bromige described this as a point analogous to a Polkey deduction in unfair dismissal but related it to the just and equitable award required by statute. 2.1.3. What is the correct weekly net rate for calculation of losses? 2.1.4. What items should the claimant give credit for against her losses? the respondent contends that the claimant should give credit for statutory maternity allowance. 2.1.5. What was the correct level of award for injury to feelings? 2.1.6. Was the claimant entitled to aggravated damages and if so at what level should the award be made? 2.1.7. Should the claimant have a separate award for loss of statutory rights, the claimant relied on losing maternity pay.[3]The respondent did not contend that the claimant had failed to mitigate loss, and the claimant conceded that the statutory uplift did not apply to[4]Once the tribunal outlined the principles of its findings on remedy orally the parties agreed the figures set out above.
The Facts
[5]The claimant had been considering other employment in the Swansea area before the termination of employment in June 2017. She had already, unsuccessfully, sought employment with one other practice.[6]Following the termination of her contract with the respondent on 23 June 2017 the claimant sought and gained employment as an associate with the Crendon practice in September 2017. Had the claimant’s contract not been terminated by the respondent or had moved smoothly from one NHS practice to another the claimant would have been contractually entitled to NHS maternity pay. This is set out (pp. 83/84) which indicates that the employer of a “dental performer” of two years, which the claimant was, would be entitled to claim back maternity pay paid to the claimant. However, the second requirement was that the last 26 weeks of NHS work should be continuous. The claimant had a period approaching 13 weeks out of work, that broke the continuity and meant the claimant could not be paid maternity pay by the new practice under the scheme.[7]Under the scheme the following is also set out (pg 84) “claims for maternity pay in respect of a performer who is entitled (SMA) as a self-employed individual will have an amount equal to this deducted from the amount paid. If the performer is not entitled to SMA or receives less than £145.18 from DWP, evidence in the form of a confirmation letter from DWP also needs to be provided.”[8]The claimant took just two weeks maternity leave before returning to work receiving £290.36 in statutory maternity allowance. The claimant indicated that she had given no thought to the length of maternity leave she would have taken had her contract not been terminated before 23 June 2017. However, she considers, now, that the likelihood was that she would have taken nine months leave. The tribunal conclude that with availability of maternity pay it is vanishingly unlikely that the claimant would have limited herself to two weeks leave and that on the balance of probabilities she would have taken no less than six months and a maximum of nine months maternity leave.[9]The claimant was contacted by Ms Anyadike after her wedding in July of 2017 and after the birth of her child in February 2018. There was an indication that the respondent had been, to some extent, monitoring the claimant’s social media traffic. However, this monitoring was of the open media that the claimant used on a professional basis. The claimant told us that she felt the respondent was “not quite stalking” her but that this was intrusive, and she found it distressing. In respect of the monitoring the tribunal accept that the respondent had a legitimate interest in the claimant’s professional work given that she was pursuing a claim against it. However, the tribunal consider there are sinister undertones in Ms Anyadike contacting the claimant about her wedding and the birth of her child given the ongoing dispute and the poor relationship between the claimant and Ms Anyadike in particular.[10]The respondent had also provided further evidence to the General Dental Council in respect of a complaint that had been made about the claimant by the respondent. That complaint had been in abeyance whilst tribunal proceedings were underway. The tribunal’s judgment was promulgated towards the end of February 2019. The GDC wrote to the claimant in April 2019 for her evidence. In cross examination the claimant accepted that the process meant that the respondent would also have been written to by the GDC at about that time. The claimant’s perception was that the respondent was providing information as a form of victimisation after the judgment. The tribunal consider there is insufficient evidence for us to draw that conclusion and it is more probable than not that the respondent was responding to a request by the GDC. As to the contents of the additional evidence we do not consider it appropriate to comment further given the outstanding professional conduct issues. The Law[11]Section 49 Employment Rights Act 1996 provides:(1) Where an employment tribunal finds a complaint of (detriment because of a disclosure) well-founded, the tribunal— (b) may make an award of compensation to be paid by the employer to the complainant in respect of the act or failure to act to which the complaint relates.(2) Subject to subsection ------(6) The amount of the compensation awarded shall be such as the tribunal considers just and equitable in all the circumstances having regard to— (a) the infringement to which the complaint relates, and (b) any loss which is attributable to the act, or failure to act, which infringed the complainant's right.(3) The loss shall be taken to include— (b) loss of any benefit which he might reasonably be expected to have had but for that act or failure to act. (5) Where the tribunal finds that the act, or failure to act, to which the complaint relates was to any extent caused or contributed to by action of the complainant, it shall reduce the amount of the compensation by such proportion as it considers just and equitable having regard to that finding. (6) Where— (b) the detriment to which the worker is subjected is the termination of his worker's contract, and (c) that contract is not a contract of employment, any compensation must not exceed the compensation that would be payable under Chapter II of Part X if the worker had been an employee and had been dismissed for the reason specified in section 103A.[12]On that basis the tribunal is required to consider whether it is just and equitable to make any award. If it decides to make an award it must be evaluated using general principles applied in tort cases. That means that the particular act must have caused the loss in question and, as best as money can do this, the claimant is to be put in the same position as he would have been but for the unlawful conduct. The principle of taking your victim as you find them is also applicable. Mr Bromige submits that we should consider that subsection 2(a) which relates loss to the infringement, in this case, requires us to consider the approach set out in Devis & Sons v Atkins [1977] IRLR 340 that there should be no compensation where there has been no injustice (he argued that in this case the mixed motivation of the respondent means the claimant would be dismissed in any event, his Polkey argument). In Chagger v Abbey National and Hopkins [2009] EWCA Civ 1202 the Court of Appeal upheld the EAT's decision that an employment tribunal should assess the likelihood that an employee would have been dismissed even if there had been no discrimination and to then assess any consequential reduction in compensation necessary, this in effect follows the Polkey approach in unfair dismissal. The tribunal see no reason why in respect of detriment arsing from a public interest disclosure (which Elias LJ accepted equated to a form of discrimination in NHS Manchester v Fecitt & Ors [2011] EWCA Civ 1190) we should not follow a similar reasoning.[13]In Virgo Fidelis Senior School v Boyle [2004] ICR 1210 it was made clear that detriment falling within section 47B ERA 1996 should be treated as a form of discrimination. As such the tribunal should consider awards for injury to feelings (applying the Vento guidelines), and where appropriate aggravated damages.[14]In Scope v. Thornett [2007] IRLR 155 the Court of Appeal reminds the tribunal of its need to engage in a certain amount of speculation in the appropriate circumstances (albeit in that case dealing with unfair dismissal and not detriment) in the words of Pill LJ at paragraph 34: “The employment tribunal's task, when deciding what compensation is just and equitable for future loss of earnings will almost inevitably involve a consideration of uncertainties. There may be cases in which evidence to the contrary is so sparse that a tribunal should approach the question on the basis that loss of earnings in the employment would have continued indefinitely but, where there is evidence that it may not have been so, that evidence must be taken into account.” And at paragraph 36 “The EAT appear to regard the presence of a need to speculate as disqualifying an employment tribunal from carrying out its statutory duty to assess what is just and equitable by way of compensatory award. Any assessment of a future loss, including one that the employment will continue indefinitely, is by way of prediction and inevitably involves a speculative element. Judges and tribunals are very familiar with making predictions based on the evidence they have heard. The tribunal's statutory duty may involve making such predictions and tribunals cannot be expected, or even allowed, to opt out of that duty because their task is a difficult one and may involve speculation.”[15]Aggravated damages can be awarded if there is an aggravating feature in the actions of the respondent which increase the injury to the claimant. It can arise in manner of the wrong itself, it can arise out of the motive for the wrong and/or it can be based on subsequent conduct. It is compensatory to the claimant and not punishment for the respondent. It can be awarded in case where there is any exceptional (or contumelious) conduct which has the effect of seriously increasing the claimant’s distress. It is important to remember the danger of overcompensating when dealing with injury to feelings awards and aggravated damages as both (generally) compensate for intangible injuries e.g. anguish, grief, humiliation, wounded pride, damaged self-confidence or self-esteem; care should be taken to avoid double recovery. In HM Land Registry v McGlue UKEAT/0435/11 Langstaff J held: “A Tribunal in examining whether there is a case for aggravated damages has to look first as to whether objectively viewed the conduct is capable of being aggravating, that is aggravating the sense of injustice which the individual feels and injuring their feelings still further. The three categories which are set out by Ms Wheeler all give examples rather than an exhaustive list of the behaviour which will qualify under each head. We note however that the emphasis is one of degree. Thus under (a) the word 'exceptionally' is used to qualify the word 'upsetting'. The expression 'high-handed' and 'insulting' occurs in a general phrase involving four words, all of which characterise the phrase, including "malicious" and "oppressive". Aggravated damages certainly have a proper place and role to fill, but a Tribunal should also be aware and be cautious not to award under the heading "Injury to Feelings" damages for the self same conduct as it then compensates under the heading of "Aggravated Damages" It must be recognised that aggravated damages are not punitive and therefore do not depend upon any sense of outrage by a Tribunal as to the conduct which has occurred.”
Analysis
[16]Should there be a deduction from any award on the grounds that the claimant contributed to the termination of her contract? Mr Bromige submitted that as the tribunal had found that the reasons for the termination of the claimant’s contract were multifactorial and the other reasons demonstrated blameworthy conduct on her behalf. On that basis he asked the tribunal to say that this contributed to the termination of the claimant’s contract. Whilst in principle Mr Bromige’s submission has force in practical terms it is not possible for the tribunal to treat this multifactorial situation as severable for the purposes of calculation. The respondent gave a false reason for the termination of the claimant’s contract. The tribunal are aware that the respondent had in mind, in a general sense, the history of the claimant’s employment with it, however that included the discrimination complaints which we found were advanced in response to the claimant’s disclosure. We have heard no evidence from the respondent as to the truth, or otherwise of those allegations. In the circumstances the tribunal is unable to separate the strands of that Gordian Knot.[17]Is it inevitable that the claimant’s contract would have been terminated lawfully in any event? Whilst the tribunal do not consider that the claimant’s contract would inevitably have terminated, we consider that there was certainly a prospect that it would. The claimant had herself been looking for alternative employment. This had arisen from her own recognition that her relationship between herself and her employer and between herself and other with whom she worked was not as it should have been. In addition, the respondent had concerns, particularly reflected in the “card game” episode, that the claimant did not properly recognise the nature of her status within the hierarchy and its importance to the smooth running of the practice. In our judgement given that the claimant was pregnant and therefore would have wished to secure employment before giving notice and that the respondent was not noted for its swift response to problems, we consider there was a30% chance that the claimant’s employment would have ended in any event.[18]What is the correct weekly net rate for calculation of losses? The claimant had 11 months of earnings. In her calculations she had extrapolated that to 12 months and made the division into weekly sums to reflect her earnings. The respondent argued that 11 months of actual earnings were sufficient for the weekly figure to based on those actual sums. The tribunal concluded that the least mathematical manipulation that takes place the better for the purpose of such a calculation and as such we preferred the method advanced by Mr Bromige on behalf of the respondent.[19]What items should the claimant give credit for against her losses? We did not, however, find favour with Mr Bormige’s suggested construction for statutory maternity pay. His position was whether or not the claimant received the statutory maternity allowance, or not, the sum should be deducted from nine months of lost earnings. We found fault with that argument in two ways: 19.1. Firstly, the claimant did not take maternity leave for nine months. Therefore, in terms of the credit the claimant gives the respondent is for working that period. Consequently, the claimant has reduced her losses for that period to the advantage of the respondent. To reduce them further on a notional basis would be advantage the respondent further. 19.2. Secondly, the construction which Mr Bromige places on the wording i.e. that SMA will be deducted automatically whether received or not does not reflect the second sentence of the relevant terms. That demonstrates that the position will alter if evidence is provided of a lower or nil sum of SMA is claimed by the performer.[20]What was the correct level of award for injury to feelings? In our judgment this fell into the lower end of the middle band of Vento. Termination of a contract is a one-off event but with significant ongoing consequences, any award should reflect this. The claimant was pregnant when the contract was terminated, this would be bound, objectively, to increase the blow particularly as it would affect contractual rights to maternity pay. In addition to this the false reason given for termination at the time was one which impacted on the claimant’s professional conduct. This would objectively increase the claimant’s fearfulness about the future. On this basis the tribunal consider that the correct award is one of £10,000.[21]Was the claimant entitled to aggravated damages and if so at what level should the award be made? In our judgment it is of particular importance that the respondent not only accused the claimant of professional failure as the reason for dismissal but maintained that at the hearing pressing it with force. This clearly falls into the category of oppressive in our judgment given its particular relationship to the claimant’s professional status, we reflect that it is the deployment of this line in the tribunal proceedings which falls into that category separately from the injury to feelings aspect we have set out above. In addition to this we consider that there was conduct which we have described as having sinister undertones. In our judgment this was certainly capable of and did increase the claimant’s sense of injustice in this case and can properly be described as falling into the category of malicious. On that basis we consider it is appropriate to award the claimant £3,000 in aggravated damages.[22]Should the claimant have a separate award for loss of statutory rights, the claimant relied on losing maternity pay. We considered that this is a specific award which recognises the time it takes for an employee to regain some employment rights e.g. two years for unfair dismissal. The claimant relied on maternity pay, however that was, in her case, a right specifically emanating from contractual terms not statutory terms. In our judgment it would not be appropriate to add a sum for loss of statutory rights in those circumstances.[23]Having dealt with the non-pecuniary losses as set out above it is necessary to draw a distinction between the losses which arise as injury to feelings and those which arise from aggravated damages. The injury to feelings award is properly subject to the reduction of 30% as it is intimately related with the chance that the claimant’s contract could have been terminated lawfully at some point. However, the award for aggravated damages does not arise in that way but arises out of the conduct of proceedings, and the post termination conduct of the respondent. On that basis we consider there should be no deduction in respect of aggravated damages. In contrast all other damages should be reduced by 30% to reflect the chance of that lawful termination. Once that figure is calculated the sum should be “grossed up” to reflect the tax burden on the claimant.[24]The parties having calculated and agreed the relevant figures the tribunal orders the respondent to pay to the claimant the sum of £61,590.52 (sixty one thousand, five hundred and ninety pounds and fifty two pence) in damages.