Mr M Ladbrook v Wales Community Rehabilitation Company: 1600645/2015
EMPLOYMENT TRIBUNALS
Case No 1600645/2015
Between
Mr M LadbrookClaimantWales Community Rehabilitation CompanyRespondent
Before
Employment Judge W Beard
Members
Mr D OSullivanMr L MapleyMr Bax (instructed by Counsel) for claimantMs Bayoumi (instructed by Counsel) for respondentDate 5 October 2017
JUDGMENT
The unanimous judgment of the tribunal is that(1) The claimant is entitled to compensation to be calculated in accordance with the figures and principles set out in the reasons to this judgement.(2) By no later than 4:00 pm 3 November 2017 the parties shall provide to the tribunal agreed figures as to the Judgment sum based on the figures and reasons in this judgment including, if appropriate, any figure to be added to represent the claimant’s tax liabilities.(3) In default of agreement the parties are each to provide in writing to the tribunal: (a) A list of the issues that remain in dispute between the parties; (b) A list of the dates of availability and unavailability of parties, witnesses and representatives and a time estimate for hearing.
REASONS
[1]This judgement should be read in conjunction with the liability judgment of the tribunal.[2]The claimant gave oral evidence and we also heard from Gail Woolen for the respondent. We were provided with a bundle of documents running to 291 pages, however, we were taken to a small percentage of those pages. The bundle also included a joint medical report prepared by Professor M Hanna and supplementary questions leading to a supplementary medical report.[3]The claimant contends that as a result of the discrimination found by the tribunal he has suffered loss as follows: 3.1. Personal injury consequential upon which are the following heads of damage: 3.2. Pain suffering and loss of amenity; 3.3. Past loss of Earnings; 3.4. Future loss of earnings; 3.5. Injury to feelings in upper range of theVento bands: 1.1. Aggravated damages.[4]The respondent accepts that the claimant is entitled to damages for injury to feelings but places this at a maximum of £12,000. The respondent does not concede that the claimant is entitled to aggravated damages. In respect of the personal injury claim the respondent contended that the claimant might be entitled to a measure of damages but argues that there is a cut-off point in December 2015 based on Professor’s Hanna’s findings. This cut-off impacts upon the measure of pain suffering and loss of amenity and also on pecuniary losses.
THE FACTS
[5]The claimant was less favourably treated on the grounds of his disability in that the respondent failed to make reasonable adjustments. The respondent’s failure to comply with its duty started in 2013. The following factors are important: 5.1. From February 2013 and in 2013/2014 the claimant was working in an environment where he was required to deal with reception enquiries frequently, this led to a worsening of the claimant’s disability. 5.2. The claimant had raised issues about this as early as June/July of 2013 complaining that he was suffering pain, a disadvantage arising because of his disability. 5.3. The claimant was told that his requests for adjustments were being considered. He was aware that the other employee in reception had made requests which had been complied with. 5.4. Throughout 2013 and 2014 the claimant was raising this issue with the respondent and nothing was being done to deal with his complaints. 5.5. A relatively simple method of alleviating the claimant’s disadvantage was available to the respondent by moving the claimant’s desk.[6]The claimant gave evidence about his health, feelings and personal history which the tribunal has generally accepted as accurate. Those matters which we consider particularly relevant to our judgment are: 6.1. The claimant’s role was of great importance to him, considering it as a source of normality in his life given the difficulties caused by his disability. 6.2. That he had over a number of years experienced difficulties in his employment arising from the disability yet had maintained his employment despite this. 6.3. That equipment previously provided to the claimant on occupational health advice as an adjustment, was not immediately moved when the claimant was sent to work in a different workplace in 2013. This appeared to him to demonstrate that the claimant’s condition was not perceived as serious by the respondent. 6.4. The claimant considered that the respondent was not taking his concerns about his disability seriously and felt constantly ignored; the claimant found this insulting. 6.5. By 2014 the claimant was suffering both mental and physical health symptoms. The symptoms included poor sleep patterns, irritability, poor motivation and a general inability to cope. By November 2014 the claimant was being prescribed medication for anxiety. 6.6. Throughout 2015 and 2016 the claimant was absent from work due to significant symptoms arising from his condition, he was in constant significant pain, he was undergoing physiotherapy for his physical symptoms and counselling for his mental symptoms and was taking five different forms of medication a day. 6.7. All of these matters led to the claimant feeling humiliated and concerned about the difficulty of the situation he faced with his employment and its impact on his future with the respondent.[7]The claimant told us that he had no intention of retiring in 2015 at his normal retirement date. He gave two reasons for this: firstly, the sense of normality he gained from working and secondly the need for him to build up his pension. We accepted the claimant’s evidence on this.[8]The medical evidence comes from medical notes, occupational health reports and an expert medical report from professor Hanna. Professor Hanna refers to the medical notes and occupational health reports in his report and supplementary report. He examined the claimant on 21 October 2016. Professor upholds the diagnosis of the claimant’s condition first made in 1991 and confirmed in 1996. Professor Hanna indicates that the claimant’s condition, Minimal Denervation Syndrome, is rare. The following aspects of Professor Hanna’s report are not controversial. 8.1. Typically, the condition causes sufferers to have involuntary twitching of muscles, cramps and diffuse muscle pain. 8.2. The condition can be made worse by various factors including exertion or repeated physical activity. 8.3. The condition is not regarded as progressive, but is chronic. Whilst there is generally no loss of muscle power there is restriction of mobility due to pain, cramps and twitching. He concludes that the claimant has suffered these symptoms with the consequent loss of mobility, and that the claimant’s condition is chronic but not progressive there being no muscle wasting. 8.4. He concludes that the claimant being required to repeatedly get up and down from his chair has exacerbated his symptoms. The exacerbation of pain and the worsened physical symptoms has impacted on the claimant’s mental wellbeing. This is the likely cause of disturbed sleep and alterations of mood.[9]The parties dispute the meaning of Professor Hanna’s conclusion as to the length of time that any exacerbation has lasted. The respondent contends two things, that the claimant’s condition was worsening in any event and that any exacerbation is time limited. The claimant contends that the claimant was injured to the extent of having to retire earlier than he would otherwise have done because of the respondent’s failure to make adjustments. 9.1. In his original report in response to the specific question as to whether the claimant’s condition would have worsened in any event Professor Hanna wrote “looking over the records it did seem his condition, in terms of his symptoms, were slowly worsening. It is, in my opinion, reasonable to conclude that this worsening has been brought forward by the repetitive activity that would have eventually occurred”. 9.2. In response to a question as to whether the exacerbation was permanent Professor Hanna wrote “I think it is very hard to answer accurately whether this is permanent exacerbation. In my experience in other patients like him is that certain physical activities make the symptoms worse but on cessation of these activities the symptoms usually return to their pre-existing baseline level, which in his case is of quite significant chronic symptoms. Based on my assessment of him in clinic today he has significant persisting symptoms, which I think preclude him returning to work” 9.3. In his supplementary report Professor Hanna answered questions about the worsening of symptoms as set out in his initial report. His opinion was that symptoms could fluctuate in a chronic condition such as the claimant’s. He was clear that his conclusions on worsening related to pain, cramps and twitching, he found no objective weakening of muscle power on examination. He indicated that in his experience of patients with the claimant’s condition muscle power was not reduced over time. He indicated that because of pain a patient might find power testing difficult depending on the degree of symptoms on a particular occasion. Professor Hanna wrote that his opinion on worsening of the claimant’s condition was based on medical records and the history given to him by the claimant. This led to his view that the claimant’s pain etc. was worse in 2013/14 than it had been when previously examined, and was not related to any loss of muscle power but coincided with the claimant’s increased activity at work. 9.4. Further in the supplementary report Professor Hanna addresses the extent of exacerbation as follows “there is no objective way to measure it. It has to be based on the history outlined by the patient and review of all the medical records --- placing a percentage on this would be fairly arbitrary, but perhaps one could estimate 40% worsening exacerbation of symptoms.” He considered that this level of exacerbation would have commenced approximately 3 months after commencement of the activity. 9.5. Professor Hanna was asked if the claimant’s current level of symptoms, at the time of his examination, were attributable to his activity at work in 2013/14. His response was as follows “I think it is hard to answer accurately whether this is a permanent exacerbation induced by the reception related activities. In my experience in other patients like him, it is the case that certain physical activities make symptoms worse and on cessation of these activities the symptoms usually return to their preexisting baseline level, which in this case is a very chronic symptom complex. At the time I assessed him, he indicated to me that he was significantly different from where he had been prior top 2013.” He indicated that in most patients a return to baseline would occur within 6 to 12 months. He also set out that the repetitive activity had advanced the claimant’s symptoms so that the slow worsening of symptoms that would be expected over time occurred earlier because of the activities in work. 9.6. Professor Hanna also concluded that the claimant could possibly work part time if there was adequate pain control alongside a sedentary form of work.[10]The occupational health reports deal with examinations of the claimant as follows: 10.1. A series of occupational health reports prior to 2013 indicate that the claimant has a specific medical condition but that he is able to work with adjustments. However, there were occasions of absence due to an exacerbation of symptoms from the claimant’s condition. 10.2. An occupational health adviser report from Nurse Symonds dated 9 December 2014 based on an examination prior to the claimant’s absence due to ill health refers to the claimant managing at work. The report was prepared to consider the implications of moving the claimant to a different office. This report does not mention exacerbation of physical symptoms. However, the report does indicate that the claimant had been to see his GP as he felt his health was deteriorating and his stress levels increasing. 10.3. An occupational health adviser report from Nurse Symonds 15 March 2015 refers to the claimant suffering stress/anxiety, that the claimant had commenced on a course of antidepressants and the claimant’s chronic medical condition remains. It refers to pain as a draining symptom which can impact on physical and mental health. There is no reference to exacerbation of symptoms in this report. The report indicates the claimant is not well enough to work at that time. 10.4. A further report in May 2015, again from Nurse Symonds, indicating that the claimant’s symptoms arising from his condition had not improved despite absence from work. Nurse Symonds indicates that for long term prognosis referral to an Occupational Health Physician would be appropriate. 10.5. In June 2015 there is a report from Dr Thomas (an OHP) he does refer to exacerbation of symptoms arising from work. The report is again concerned with adjustments necessary for the claimant to return to work.[11]The claimant’s net weekly earnings were £1,257.90 per month (£290.28 p.w.) The claimant benefited from an employer’s pension contribution of £224.09 per calendar month. However, the claimant accepted in cross examination that his wages were subject a ring fencing arrangement which was to come to an end in 2015, the claimant accepted that this meant that in 2015 he would have a gross annual wage of £17,243. The tribunal do not have any evidence as to when this change would have taken place or comparative net figures.[12]The respondent called Ms Woolen to give evidence about the efforts of the respondent to make adjustments and return the claimant to work. She offered the opinion that the claimant could have returned to work in January 2015. This clearly flew in the face of the medical evidence before the tribunal. In cross examination, it was suggested to the claimant that he was fit enough to return to work during 2015 if adjustments were put in place. The medical evidence does not support a conclusion that the claimant could work even with adjustments. We gained the impression through Ms Woolen’s evidence that the respondent still did not appreciate the extent of the claimant’s difficulties as set out in Professor Hanna’s report. We placed no weight on Ms Woolen’s evidence as it appeared to us that she was arguing a case rather than simply giving a factual account of events.
THE LAW
[13]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 question is one of pure causation and if the loss flows naturally from the unlawful act it does not matter that the consequences are not foreseeable Essa v Laing Ltd [2004] IRLR 313 the perpetrator will be liable for the consequences. The principle of taking your victim as you find them is also applicable.[14]The decision in Vento v West Yorkshire Police [2003] IRLR 102 CA giving guidelines on awards for injury to feelings as increased by later authorities, sets out bands of awards: they were in May 2017 approximately £750 - £7,500 in the lower award, £7,500 - £23,000 in the middle band of awards, and £23,000 - £38,000 in the upper bands of awards taking account of inflation and the 10% Simmons -v- Castle uplift. In Vento Mummery LJ, giving the judgment of the Court of Appeal said: Although they are incapable of objective proof or measurement in monetary terms, hurt feelings are none the less real in human terms. The courts and tribunals have to do the best they can on the available material to make a sensible assessment, accepting that it is impossible to justify or explain a particular sum with the same kind of solid evidential foundation and persuasive practical reasoning available in the calculation of financial loss or compensation for bodily injury. and later: At the end of the day this Court must first ask itself whether the award by the Employment Tribunal in this case was so excessive as to constitute an error of law. ----------------- It is also seriously out of line with the guidelines compiled for the Judicial Studies Board and with the cases reported in the personal injury field where general damages have been awarded for pain, suffering, disability and loss of amenity. The total award of £74,000 for non- pecuniary loss is, for example, in excess of the JSB Guidelines for the award of general damages for moderate brain damage, involving epilepsy, for severe post-traumatic stress disorder having permanent effects and badly affecting all aspects of the life of the injured person, for loss of sight in one eye, with reduced vision in the remaining eye, and for total deafness and loss of speech. No reasonable person would think that that excess was a sensible result. The patent extravagance of the global sum is unjustifiable as an award of compensation. and finally: Employment Tribunals and those who practise in them might find it helpful if this Court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury. 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 forserious 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.[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.[16]In discrimination cases interest also accrues on the claimant’s losses before judgment. The rate of interest in discrimination cases is 0.5%. Interest accrues from day to day. It is simple rather than compound interest. The rates above are as prescribed for the Special Investment Account under Regulation 27(1) of the Court Funds Rules 1987. Where there is an award for Injury to feelings interest runs from the date of the discriminatory act to the date of calculation. All other awards interest runs from the mid point beginning with act of discrimination and the date of calculation. The power to award interest is contained in the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (SI 1996/2803).
ANALYSIS
[17]The evidence of Professor Hanna permits us to conclude that, on the balance of probabilities the claimant has suffered personal injury arising out of the respondent’s failure to make reasonable adjustments. It is clear that his expertise in the claimant’s condition is greater than that of Nurse Symonds and Dr Thomas. The occupational health advisers were not addressing their minds to issues of causation or differences in condition at particular points in time, their concentration was directed towards what was needed to assist the claimant in returning to work. In our judgment, Professor Hanna’s review of that medical evidence, along with the history provided by the claimant (which we consider reliable) allows him to apply his expertise in addressing the issue of causation. It is clear that the combination of a particular pattern of working and the claimant’s condition could lead to the exacerbation of symptoms. The exacerbation of symptoms coincided with this pattern of working. In those circumstances we consider that it is more probable than not that the exacerbation was caused by the pattern of working and that the failure to comply with the duty to make adjustments because of that pattern of working caused personal injury to the claimant.[18]It is well within the medical competence of Professor Hanna to opine upon the physical aspect of that injury. The respondent contends that it is outside his competence to comment on the mental injury to the claimant. We consider that the respondent is correct insofar as any diagnosis of a specific mental disorder is concerned. However, the medical notes show that claimant was diagnosed with anxiety by his GP and provided with medication to deal with that. This diagnosis coincided with the increase in pain and discomfort which Professor Hanna considers was caused by the discrimination. It is also clear from the medical evidence that pain can have a negative impact on mental health. We consider it well within the competence of a medical practitioner with Professor Hanna’s expertise to connect that diagnosis with the worsening of the claimant’s physical symptoms and we reject the respondent’s submission. Personal Injury[19]In our judgment, there has been a period of exacerbation of the physical symptoms arising from the claimant’s disability accompanied by an anxiety condition which, but for the discrimination, would not have occurred until a later date.[20]The period of advancement of the extent of the claimant’s physical symptoms is the subject of argument between the parties. 20.1. The respondent contends that such advancement should not extend beyond December 2015. The contention is that Professor Hanna’s report shows(a) that a 40% exacerbation can be shown from three months after the claimant began his working pattern(b) people with the claimant’s condition would normally return to their baseline state within a maximum of twelve months, and the report does not say that it is reasonable to conclude that the claimant would be different to other patients in this group(c) the claimant has not returned to his baseline condition but more than twelve months have passed after he stopped working at the end of 2014, therefore the claimant’s current symptoms are because of normal worsening of his condition and not the discrimination. 20.2. The claimant contends that Professor Hanna states that the condition is rare, chronic and factually that the claimant’s condition at the time of his examination does not show a return to the baseline state. 20.3. Professor Hanna is at pains to point out the difficulty involved in making generalisations about this condition indicating that it is hard to draw hard and fast conclusions on some matters. 20.4. That although Professor answers a specific question about a return to baseline condition, it is misreading his answer to conclude that the claimant not having returned to his baseline condition is because of a natural worsening of his symptoms over time. Read as a whole his reports point to a different overall conclusion. 20.5. Professor Hanna’s conclusions support an inference that there has either been an acceleration of the worsening of the claimant’s symptoms brought about by the discrimination or that he is still suffering from the effects of the discrimination and may at some point return to a baseline condition. In either case the respondent is liable for this injury. 20.6. In our judgment, the claimant’s arguments are more sustainable. We consider the following matters important: 20.6.1. Professor Hanna makes it clear that the is no degeneration of the claimant’s condition in relation to muscle power. He instead refers to a slowly worsening condition in respect of pain and associated symptoms. Professor Hanna makes it clear that pain can affect the examination of muscle power on any given occasion. 20.6.2. Professor Hanna is clear that the claimant’s symptoms which led to his absence from work after 2014 arise from the activity in work in 2013/14. 20.6.3. The claimant was able to work, with adjustments (albeit with occasional absences because of a temporary worsening of symptoms) prior to 2013. 20.6.4. The Professor does not state that the claimant would be able to work at the level the claimant was working previously even with adjustments. 20.6.5. The Professor’s use of words such as “slowly” and “eventually” in the context of worsening symptoms does not point to a conclusion that the claimant would have reached that position in any event by December 2015. 20.6.6. The Professor was examining the claimant in October 2016, as a joint expert it would be expected that if he were of the view that the claimant’s symptoms, at the point of examination, were due to the natural progress of the condition as opposed to the activity in 2013/14 he would have made that clear. 20.6.7. On that basis we have symptoms which were caused by the discrimination and which continued up to the point of examination and beyond.[21]Mr Bax referred us to Judicial College Guidelines and some quantum reports we did not find them particularly helpful in this case. This is not to criticise either counsel because the claimant’s condition and the exacerbation of symptoms from that condition does not fall easily into the categories of injury within the guidelines and being a rare condition is unlikely to be replicated in the reports. Mr Bax suggested an award of £10,000 Miss Bayoumi for the respondent suggested no more than £4,000. 21.1. The claimant has a condition which at a baseline level causes considerable pain and discomfort. 21.2. The increase in that pain and discomfort is estimated at 40%. 21.3. The respondent is not responsible for the baseline condition. However, the tribunal do not consider that this is simply a matter of assessing the percentage increase of pain. In our judgment, an individual who is used to one level of discomfort may not be simply suffering an increased level of discomfort but may be moving from the bearable to the unbearable level of discomfort. In those circumstances one considers increases in pain to be geometric rather than linear in character. 21.4. In the circumstances of this case the claimant’s pain, discomfort and loss of amenity includes: 21.4.1. Moving from level of pain where he could work to one where he could not. 21.4.2. Moving from a level of pain where the claimant was able to cope mentally with his condition to one where he was diagnosed with anxiety which required treatment through medication. 21.4.3. Moving from a level where he was able to enjoy family life to one where he was irritable and not doing so. 21.4.4. This was a state of affairs which had begun to develop in 2013 which had peaked at the end of 2104 and had plateaued ever since. 21.5. In our judgment, the above elements show that the additional burden on the claimant arising from the increased pain and discomfort was significant and lasted a considerable time. We consider that the appropriate award for pain suffering and loss of amenity is £10,000.[22]Dealing with the pecuniary losses arising from the personal injury. 22.1. The claimant asked us to consider that he would not have retired until it was no longer possible for him to work. In the schedule of loss that is expressed as two years from the date of hearing. 22.2. In our judgement, the claimant did intend to work as long as possible, however there are contingencies to take account of. The claimant could have been dismissed for redundancy, the respondent had moved the claimant previously, the claimant might not have been able to work at another site. The claimant might become ill in a way unconnected to discrimination, or he simply might have concluded that continuing to work was not as beneficial as he thought. 22.3. There are numerous potential factors which affect such contingencies, doing the best we can we consider it appropriate to award losses up to 7 May 2018 and not beyond. 22.4. We consider, therefore, that loss of earnings and pension loss ought to be compensated on the basis that the claimant would have remained in employment until that date. In respect of pension loss that should reflect the weekly pension income that the claimant would have received had he continued and contributions made and include the money purchase necessary in order that the pension can reach level. However, the claimant’s loss of earnings should also reflect a reduction for the pension that the claimant has actually received. We do not have the relevant figures to make this calculation. 22.5. However, those losses should recognise that the claimant accepted that there would be a reduction in salary in 2015. We simply do not have the evidence to calculate the earnings loss, we were not given a date of the change (other than June 2015), nor were we given the equivalent net weekly figure for the period after June 2015. Injury to Feelings/ Aggravated Damages[23]The claimant was subject to discrimination over a period of approaching two years. Although specific events were limited they were a part of a pattern of treatment which left the claimant feeling humiliated and unsupported. When the claimant raised issues, they were not dealt with as they ought to have been adding to the claimant’s sense of isolation and humiliation. This was particularly so because it appeared that his colleague had raised issues and they were being dealt with promptly. In our judgement, given the facts of the discrimination we set out above and in the liability judgment this falls into the upper range of the middle band of the Vento guidelines as up-rated. We take the view that whilst the very top end of that range is not justified the sum of £20,000.00 is the appropriate level of award.[24]We do not consider that this is a case where there should be aggravated damages in addition to injury to feelings. Most of the factors which might be relied upon as aggravating the injury are in fact part and parcel of the discriminatory treatment of the claimant taken account of in the injury to feelings award. Mr Bax asked us to consider that Ms Woolen’s evidence showed that the respondent was dismissive of the claimant’s condition still. Whilst we do consider Ms Woolen’s evidence to be dismissive of the seriousness of the claimant’s condition we do not consider that it adds significantly to the injury to feelings position and as such we make no additional award for aggravated damages. Interest[25]We are of the view that interest needs to be applied to the award but we are not able at this stage to calculate the interest. Calculation of Award[26]The tribunal has set out the figures it awards for general damages in personal injury and for injury to feelings. We have also set out the basis by which the special damages can be calculated along with the interest thereupon. The parties should endeavour to agree the figures and the tribunal will then set out a judgement for that sum. The parties should provide a written document setting out the agreed sums by no later than 4:00 pm 3 November 2017. If the parties are unable to agree then the tribunal should be informed in writing by the same date what issues are in dispute.[27]The tribunal has approached this matter on the basis that the termination of the claimant’s employment does not give rise to tax liability (as the award is in excess of £30,000.00. If the parties consider the award is subject to such liability they should provide “grossing up” figures to be added to the award. If the parties are unable to agree then the tribunal should be informed in writing by the same date what issues are in dispute.