Mr DH Hall Thomas v Yorkshire Ambulance Service NHS Trust: 1803072/2015
EMPLOYMENT TRIBUNALS
Case No 1803072/2015
Between
Mr DH Hall ThomasClaimantYorkshire Ambulance Service NHS TrustRespondent
Before
Employment Judge Brain
Members
Mr T DownesMr K LannamanIn person for claimantMs B Clayton (instructed by counsel) for respondentDate 22 June 2018
JUDGMENT
ON REMEDY The Judgment of the Employment Tribunal is that[1]The Respondent shall pay to the Claimant compensation for past loss of earnings in an amount equivalent to that which would have been earned net of tax in the Clinical Adviser 111 role between 19 December 2014 and 21 November 2017. The Claimant shall give credit against this payment for: the interim payment of £5,000 ordered to be paid to him by the Respondent by 3 December 2017 at the hearing of 20 November 2017; and sick pay and contractual notice pay paid to him by the Respondent. He shall also give credit for Employment and Support Allowance received by him over this period. There shall be no reduction of this amount by reason of any failure to mitigate loss on the part of the Claimant.[2]In respect of future loss (that being deemed to be from 22 November 2017) the Respondent shall pay to the Claimant compensation for loss of earnings upon the same basis as in paragraph 1 until a date three years from the date of promulgation of the final remedy judgment. The issue of losses accruing between 22 November 2017 and the date of the final remedy hearing shall be considered at that hearing. There shall be no reduction of this amount on account of any withdrawal factors. Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 2 March 2017[3]The Claimant is entitled to loss of past and (if appropriate) future pension rights in an amount to be determined.[4]The Claimant shall give credit against the amount payable pursuant to paragraph 1 in the sum of £800 being one half of the cost of preparation of the joint medical expert’s report. The cost of the provision of the expert’s replies to the Respondent’s solicitors’ questions shall be paid by the Respondent.[5]The Respondent shall pay compensation to the Claimant for personal injury by way of pain, suffering and loss of amenity in the sum of £20,000.[6]The Respondent shall pay compensation to the Claimant for injury to feelings in the sum of £13,200.[7]The sums ordered to be paid in paragraphs 1, 5 and 6 (less the amount payable by the Claimant by paragraph 4) shall be paid to the Claimant within 35 days of the date of promulgation of this Judgment. The parties are expected to co-operate in the calculation of the appropriate amounts.[8]There shall be grossing up of the sums payable pursuant to paragraph 7 by application of the formula set out at paragraph 86.8 in order to defray any income tax payable by the Claimant upon receipt of the sums due to him.[9]The Respondent shall add simple interest at the rate of 8% from 1 December 2014 for the amounts payable pursuant to paragraphs 5 and 6 and from 31 May 2016 (being the mid-point of the loss) for the amounts payable pursuant to paragraph 1.[10]The Claimant’s claims for: a basic award (under section 119 of the Employment Rights Act 1996); an uplift upon the awards for breach of the ACAS Code on Disciplinary and Grievance Procedures pursuant to section 207A of the Trade Union & Labour Relations Act 1992; and aggravated damages and an apology under section 124 of the Equalities Act 2010 are all refused.[11]The Respondent shall pay the cost of future medical treatment and (if appropriate) the Claimant’s associated travel expenses in an amount to be determined.[12]There shall be a second remedy hearing to be listed upon the next convenient date.
REASONS
13. Following a four day hearing between 13 and 16 September 2016 followed by a day’s deliberation in chambers, the Tribunal promulgated its Reserved Judgment on 11 November 2016. For convenience we shall refer to this as ‘RJ’ and to the reasons for it as ‘RJR’. The hearing in September 2016 dealt with the merits of the Claimant’s claims. 14. The Tribunal then reconvened on 20 November 2017 in order to hear evidence upon the issue of remedy. This was followed by a day’s deliberations in chambers on 21 November 2017. 15. Remedy in this case gives rise to several difficult issues. It has been necessary, for good case management of the remedy issues, to have three case management hearings (on 3 February, 1 March and 15 August 2017). Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 3 March 2017 16. The Claimant brought a number of claims. These are set out in RJR paragraph 151. The Claimant succeeded upon several of these complaints. In particular:-a. The Respondent was in breach of the duty upon it to make reasonable adjustments pursuant to section 20 the Equality Act 2010 by failing to redeploy the Claimant into the clinical advisor 111 role. The Claimant thus succeeded upon part of issue 7.3.2 referred to in RJR 151. (For convenience, we shall hereafter refer to this as ‘the 111 role’).b. The complaint of discrimination arising from disability pursuant to section 15 of the 2010 Act succeeded. The Tribunal held that the decision to dismiss the Claimant from his substantive role as a paramedic and failing to extend re-deployment by not moving him into the 111 role after 19 December 2014 constituted unfavourable treatment for something arising out of disability which the Respondent had failed to justify. The complaint of discrimination arising from disability set out at paragraph 6.1.2 and 6.1.3 of the list of issues at RJR 151 therefore succeeded. 17. In determining the remedy issues that now arise we shall start by setting out the relevant principles of law. We shall then go on to consider the evidence that was before us and our findings of fact. We shall then apply the relevant law to those findings and come to our conclusions. For reasons that will become apparent, it is necessary for there to be a further remedy hearing. 18. In her helpful written submissions dated 9 November 2017 Ms Clayton says (at paragraph 4) that “the Tribunal is tasked with determining the losses flowing from the discrimination found to have occurred.” In broad terms, this is a helpful and succinct submission. 19. The Tribunal has found the Respondent to be in contravention of Part 5 of the 2010 Act (by discriminating against the Claimant in the workplace). The Tribunal’s powers upon remedy are set out in section 124 of the 2010 Act. That provision says that the Tribunal may make a declaration as to the rights of the Claimant and Respondent in relation to the matters to which the proceedings relate, make an appropriate recommendation and order the Respondent to pay compensation to the Claimant. 20. The amount of compensation that may be awarded corresponds to the amount which could be awarded by the County Court under section 119 of the 2010 Act (in cases coming before the County Court under the 2010 Act). This section provides that the County Court has power to grant any remedy which could be granted by the High Court in proceedings in tort and that any award of damages may include compensation for injury to feelings (whether or not it includes compensation on any other basis). 21. The overarching principle in assessing and awarding compensation is that, so far as possible, complainants should be placed in the same position as they would have been in but for the unlawful acts. The Tribunal’s task is thus to put the employee, so far as money can, into the position that he or she would have been in had there been no discrimination. The Tribunal has jurisdiction to award compensation by way of damages for personal injury (extending to psychiatric injury) caused by the statutory tort of unlawful discrimination. A successful complainant is entitled to be compensated for the loss which arises naturally and directly from the wrong. Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 4 March 2017 22. The relevant principles for assessing injury to feelings can be summarised as follows:- a. Awards for injury to feelings are compensatory. They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor’s conduct should not be allowed to affect the award. b. Awards should not be too low as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained as excessive awards could be seen as the way to untaxed riches.c. Awards should bear a broad similarity to the range of awards in personal injury cases. This should be done by reference to the whole range of awards, rather than to any particular type of award.d. In exercising their discretion in assessing a sum, Tribunals should remind themselves of the value in every day life of the sum they have in mind. This may be done by reference to purchasing power or by reference to earnings.e. Tribunals should bear in mind the need for public respect for the level of awards made. 23. In Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102CA three broad bands of compensation for injury to feelings (as distinct from compensation for psychiatric or similar personal injury) were identified. An award within the range of the top band should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment. The middle band should be used for serious cases which do not merit an award in the highest band. The lowest band is appropriate for less serious cases such as where the act of discrimination is an isolated or one off occurrence. 24. The guideline awards have been twice increased. In Da’Bell v National Society for Prevention of Cruelty to Children [2010] IRLR 19 the Employment Appeal Tribunal revisited the bands and uprated them for inflation. In Simmons v Castle [2012] EWCA Civ 1039 the Court of Appeal in England & Wales declared that with effect from 1 April 2013 the proper level of general damages in all civil claims for pain and suffering, loss of amenity, physical inconvenience and discomfort, social discredit or mental distress would be 10% higher than previously. This followed upon changes to the rules governing the recovery of costs in personal injury litigation in the Civil Courts. In Sash Window Workshop Limited and another v King [2015] IRLR 348 the EAT confirmed that the Court of Appeal’s recommendations in Simmons applied to claims for injury to feelings in the Employment Tribunal. Applying that approach therefore the bands following the hearing of Sash in the EAT were £660 to £6,600, £6,600 to £19,800 and £19,800 to £33,000 respectively. 25. On 5 September 2017 Presidential Guidance was issued by the Presidents of the Employment Tribunals in England & Wales and Scotland. There was a further upward revision of the bands in respect of claims presented on or after 11 September 2017. Guidance was given as to the approach taken for cases (such as the instant case with which we are dealing) presented before that date. Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 5 March 2017 This entails the application of a complex formula as there set out. Ms Clayton urged upon the Tribunal taking something of a broad brush approach in arriving at appropriate compensation for injury to feelings. 26. The award for injury to feelings is to compensate for subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, stress, depression and emotions of that kind. Translating hurt feelings into hard currency is bound to be an artificial exercise. Tribunals must do the best that they can upon the available material to make a sensible assessment. Quantification of injury to feelings is more a broad brush exercise of estimation than of calculation, comparison with precedent or cold logic. 27. As already stated, where the Tribunal decides to award compensation it must be calculated in the same way as damages in tort. Tribunals must therefore ascertain the position that the Claimant would have been in had the discrimination not occurred. Another way of looking at it is to ask what loss has been caused by the discrimination in question. 28. The ‘eggshell skull’ principle applies to loss arising from discrimination. The discriminator must take the victim as he or she finds him or her. This means that even if the victim is unusually sensitive or susceptible, and the level of damage or loss sustained is worse than it would have been for another individual, the discriminator will be liable for the full extent of the damage, loss or injury so long as it can be shown that this flowed from the act of discrimination. Complexities can arise where the discrimination exacerbates or accelerates the effect of a pre-existing condition. In such cases, awards for injury to feelings and personal injury should reflect only the exacerbation or acceleration. 29. Compensation for non-financial loss may include an added element of aggravated damages in particularly serious cases of discrimination. There are three broad categories of case where aggravated damages may be available. These are:- a. Where the manner in which the discrimination was committed was particularly upsetting, for example where it was done in a high handed, malicious, insulting or oppressive way. b. Where there was a discriminatory motive based upon prejudice, animosity, spitefulness or vindictiveness. c. Where subsequent conduct adds to the injury, for example, where the employer conducts Tribunal proceedings in an unnecessarily offensive manner or shows that he does not take the Claimant’s complaint of discrimination seriously. 30. A significant element of the Claimant’s claim in this case is for loss of pension rights. The fourth edition of the ‘Employment Tribunals: Principles for Compensating Pension Loss’ was published in August 2017. It was envisaged at the case management hearing of 15 August 2017 that the principles contained in that publication may be of use in this case. 31. Common law claimants are under a duty to mitigate their loss. An equivalent duty arises in all discrimination claims in the Employment Tribunal whereby compensation may be decreased if a claimant has reduced, or could reasonably have been expected to reduce, his loss. It is for the employer to Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 6 March 2017 show that the complainant has failed to mitigate his loss. A vague assertion of failure to mitigate unsupported by any evidence is unlikely to succeed. Compensation will be assessed upon the basis that the employee took all steps to reduce his loss. If the employee in fact failed to take such a step then the award will be reduced to reflect those losses that would have been incurred if the employee had taken the appropriate steps. The question is not whether the employee has behaved reasonably in general terms but whether he has taken reasonable steps to mitigate. 32. We shall say nothing further at this stage about the relevant legal principles to be applied. There are other issues of law of relevance such as the application of the fourteenth edition of the Judicial College’s Guidelines for the Assessment of General Damages in Personal Injury Cases and the application of the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. We shall refer to these and other issues in due course. 33. We shall not set out again all of the findings of fact in the RJRs. It is however worth reminding ourselves of the following. (Citations are in italics. Where we content ourselves with a summation of the findings made, this is in Arial font) :- (51): ……Mr Frankowiak was told by the Claimant (at a meeting held on 19 August 2014) that the Claimant was not feeling any better “and that it is not the role of being a paramedic that is the problem, it is the external factors like the processes, working out of area and the prolonged time on scene with poorly patients which exacerbate your stress and anxiety. When asked if working on a DCA [double crewed ambulance) would be an option you’ve stated that this would be potentially like going from the frying pan into the fire.” (167): ….Given the Claimant’s inability to perform his substantive role [as a paramedic working for the Respondent] and there was no realistic prospect of him ever being able to do so it appears that re-deployment rather than secondment is in issue. (169): …It would not have been objectively reasonable for the Respondent to place the Claimant in another patient facing role given the difficulties that the Claimant had undertaking his substantive role and his reluctance to do any sort of patient facing role. (171): The Claimant was capable of doing the NHS 111 role and had he known that there was a job at the end of it he would have undertaken the necessary training. (173): It would have been practicable for the Respondent to re-deploy the Claimant into a 111 role. (174): …..The failure to re-deploy the Claimant into the clinical advisor 111 role was a continuing course of conduct up to the date upon which the Claimant was dismissed on 24 September 2015. (177): The dismissal of the Claimant from his substantive role was not a proportionate means of achieving the legitimate aim of providing an effective service to the public. Accordingly, the complaint of unfavourable treatment for something arising in consequence of disability succeeded. (186): The Claimant commenced his final long term period of absence from work on 19 December 2014 by reason of his disability. The failure upon the part of the Respondent to make a reasonable adjustment and re-deploy the Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 7 March 2017 Claimant after the necessary training into the 111 role was a continuing course of conduct. (187): Accordingly, the Claimant’s complaint that the Respondent was in breach of section 15 of the 2010 Act by not extending re-deployment after November 2014 was made out in so far as it relates to the period after 19 December 2014 when the Claimant entered his final period of long term sickness absence by a reason of his inability to perform his substantive role because of his disability. 34. Pursuant to directions given at the case management hearings, Dr Yvonne Waft, chartered clinical psychologist, was instructed upon a joint basis. Her report dated 10 April 2017 is at pages 162 to 215. The Respondent’s solicitors then raised a series of questions of her (pages 216 to 219). She replied to those in the addendum to her report at pages 220 to 226. 35. Dr Waft’s report was prepared following an examination of the Claimant on 5 June 2017. She also reviewed the documents set out at appendix 5 on page 203. These include the Claimant’s GP and psychiatric records. Appendix 6 is her summary of the relevant entries from those medical records. These need not be set out here. 36. The salient passages in Dr Waft’s report are as follows (by reference to the relevant paragraph number): (1.3) The Claimant has a significant mental health problem which constitutes a disability under the 2010 Act. This was exacerbated by the Respondent’s actions during the period 2012 to 2015 in particular between 2014 and 2015. She says, “It is my opinion that but for the discrimination that occurred, Mr Hall- Thomas would, more than likely, not have become so unwell with his mental health and could, more than likely, have continued to work in an alternative role within the Ambulance Service. It is my opinion that Mr Hall-Thomas has been disadvantaged in seeking alternative employment due to his worsened mental health, his sickness record with YAS and his engagement in the Employment Tribunal”. (3.1.2) Mr Hall-Thomas described having mental health difficulties diagnosed in 2011/2012 after an accumulation of home stress, financial stress and work stress. (3.1.4) Here, Dr Waft sets out what is described as the Claimant’s ‘Trauma and Adversity History.’ We shall not set the whole of paragraph 3.1.4 out here. Suffice it to say that there were difficulties with the Claimant’s home life (in terms of his relationship with his father and wife) and which created significant financial difficulties. The Claimant also served in the RAF and “witnessed combat injuries up close, heard of colleagues dying and was involved in active service in his capacity as a medic. He states that this did not affect him and he is ‘fine with it’”. Mention is also made of the Claimant having to deal with significant trauma events in his substantive role with the Respondent. (3.1.6) The Claimant told Dr Waft that he was not diagnosed with the mental health problem until 2011/2012. This was a few years after he first split up from his wife. He told her that he had input from psychiatric services from 2011/2012. He reported significant low mood and mood swings and that he was diagnosed with Cyclothymic Disorder in October 2014. Psychiatric medication has produced little benefit but his current mediation is keeping him stable. Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 8 March 2017 (3.2) Following psychological assessment, Dr Waft was of the opinion that the Claimant’s scores “give a picture of someone with significant problems and severe symptoms.” His scores indicate Cyclothymia (see appendix 1) and/or Major Depressive Disorder (see appendix 2). (3.3.6) Commenting upon her review of the Claimant’s GP records, Dr Waft said that the first mention of depression was in 2011. The Claimant was prescribed anti-depressants in early 2012 and intermittently since. Depression continued throughout 2012 by reason of financial problems and “impending bankruptcy”. He was reported as having a severe mental health crisis in December 2012 which entailed the involvement of the Crisis Resolution Service. Marital breakdown, work stress and financial worries were cited as reasons for the crisis. (3.3.7) Dr Waft then comments upon her review of the psychiatric records from South West Yorkshire Partnership Foundation Trust. The Claimant was referred to the Mental Health Single Point of Access on 19 December 2012 with a history of low mood getting worse over the past few months due to financial problems. There is then an extensive review of the psychiatric records which need not be set out here. Ms Clayton counselled caution that the Tribunal had found there to have been discrimination from December 2014 to the date of the Claimant’s dismissal in September 2015. The compensation awarded by the Tribunal is thus to put the Claimant, so far as money can, into the position that he would have been in had that discriminatory cause of conduct not occurred. With that in mind, there are relevant entries from October/November 2014 and December 2014 (at paragraphs 3.3.7.18 and 3.3.7.19) concerning the ending of the Claimant’s temporary roles, his ability to return to his substantive role and his concerns about alternative employment (and in particular around a potential drop in income). At paragraphs 3.3.7.20 to 3.3.7.33 reference is made by Dr Waft to entries coinciding with the period during the Claimant’s final period of sickness absence leave which started on 19 December 2014. In particular, at section 3.3.7.24, the Claimant was very distressed about the prospect of employment being terminated. (3.3.8.1) Dr Waft says that the extensive medical records show consistency with what the Claimant had reported to her and a clear link between his work stresses and fluctuations in his mental health. (4.1.1) In the opinion section, Dr Waft says that the Claimant developed mental health problems in 2011. These were caused by a gradual build up from childhood of adverse circumstances. She opines that the Claimant lacks emotional coping strategies and has developed significant mental health difficulties as a result. (4.1.2) The Claimant minimised the impact of his traumatic experiences when recounting his story to her. (4.1.5) On the balance of probabilities the Claimant’s pre-existing mental health difficulty, which first manifested in 2011, has been exacerbated by the actions of his employers of the ensuing four to five years. Had the Claimant been redeployed to a less stressful role, permanently, before his mental health became so severely affected, he is likely to have been able to continue working for the Respondent. Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 9 March 2017 (4.1.7) Dr Waft’s opinion was that around 2014, had the Respondent redeployed the Claimant into a less stressful role, it is likely that he would have continued to have occasional bouts of anxiety or depression but that his mental health would not have deteriorated to the severe level seen in 2014/2015 which resulted in him being dismissed. She says that it is likely that he would have been able to continue working with occasional time off sick with mental health difficulties but for the actions of the Respondent during 2014/2015. (4.1.11) Dr Waft is of the opinion that it is possible for the Claimant to gain employment in the future. She says that, “he would need the Tribunal case to be fully resolved first and would need a period of calm in his life before embarking on a job search.” She refers to “a minimum of 12 months from the settlement of the Tribunal” to enable the Claimant to be able to begin work in any capacity. She expresses doubt as to whether the Claimant would engage with any therapy. However, after the minimum period to which she refers following the ending of the Tribunal proceedings she considers it possible for the Claimant to take up employment (perhaps in medical roles with private companies) between now and his projected retirement date. 37. As we have said, the Respondent’s solicitors raised a series of questions with Dr Waft. Again, we shall not set out the answers to each question. Focusing upon those most relevant to the Tribunal’s function:-(1) It is unlikely that the Claimant could have continued in his role of paramedic regardless of whether the discrimination had occurred. (4) Dr Waft had commented at paragraph 3.2.1.2 of her report that the Claimant’s score for negative impression management was very high suggesting either that he has a very exaggerated/distorted view of his mental health symptoms or that he was trying to present an exaggerated impression of his mental health symptoms. His score on the malingering subscale indicated that there may have been some attempt to score more highly for symptoms of mental health difficulties than is truly the case. Dr Waft said that the Claimant does have an exaggerated view of his symptoms viewing his mental health in terms of a serious illness rather than an understandable reaction to a very difficult set of life circumstances. She considered that upon assessment the Claimant was keen to demonstrate how seriously ill he believes himself to be. Her view is that he has significant mental health difficulties and sees them as worse than they are and wanted to emphasise this strongly on the assessment to ensure he was taken seriously. She did not consider the Claimant to be overtly dishonest in his responses. (5) She opined that it was very difficult to separate out the degree to which the actions of the Respondent from November 2014 onwards exacerbated the Claimant’s symptoms. She said, “I believe it is more than likely that had the Claimant been re-deployed into a less stressful role in or around November 2014, he would have been able to manage his mental health well enough to remain in work, albeit with some expectation of time off with mental health related sickness from time to time. I therefore believe that by not re-deploying him in November 2014, his mental health problems were exacerbated and became unmanageable for him in the workplace”. (6) Dr Waft said that the worsening of the Claimant’s mental health cannot be attributed solely to one course or another. There was a pre-existing mental health difficulty which was significant, the ongoing conflict at work was a Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 10 March 2017 significant contributing factor. She opined that, “the culmination of this was the failure to re-deploy Mr Hall-Thomas, and his subsequent dismissal. The specific factors were very upsetting and stressful to Mr Hall-Thomas and as such significantly exacerbated his mental health from November 2014 to present.” (8) The Respondent’s solicitors then asked Dr Waft for an indication of the Claimant’s mental health before and after the discrimination having regard to the five factors set out at question 8. They are; the Claimant’s ability to cope with life, education and work; the effect on the Claimant’s relationships with family, friends, and those with whom he comes into contact; the extent to which treatment would be successful; future vulnerability; and prognosis. (These five factors are, in fact, five of the seven factors referred in Chapter 4 of the Judicial College Guidelines as being those to be taken into account in seeking to evaluate psychiatric injury claims. The sixth factor (omitted from the Respondent’s solicitor’s question) concerned the issue of ‘medical help’. Although we were not told this, we infer that this question was not raised as it had been extensively considered by Dr Waft in her report. The seventh factor appears to be irrelevant to the Claimant’s circumstances.) About these five issues she said: (8.1) The Claimant was managing life and work prior to the discrimination but with some difficulty and with poor coping strategies for managing adverse situations. (8.2) He described a good relationship with his (now adult) children. (8.3) Dr Waft expressed concerns about the Claimant’s willingness to engage with therapy aimed at addressing past trauma and thus remains vulnerable to further mental health crises. Until he wishes to engage with psychological therapy she said that he will continue to struggle with his mental health. That will however restrict him to finding a low stress role. Significantly, she said that, “I do not believe Mr Hall-Thomas could take on any employed role while he still has the stress of the Tribunal ongoing, and I believe he will need time to recover and re-focus before taking on a new role.” She went on that, “since the discrimination, he has been unable to work and has been preoccupied by the Tribunal. His already poor mental health has been severely exacerbated by the discrimination, dismissal and the Tribunal. (9) Dr Waft’s opinion is that had the discrimination not occurred the Claimant would more than likely have continued to experience moderately severe mental health difficulties, but would have continued to work in an alternative role within the Respondent, requiring occasional time off sick for mental health related reasons. She says, “He would have been able to continue using the Vocational Service, which would have given him some support with managing his mental health in the workplace. His financial difficulties would not have been further exacerbated by unemployment and this would represent one less area of stress that Mr Hall-Thomas currently faces”. (10) Upon the question of therapy, she said that, “it is not clear that Mr Hall- Thomas could benefit from psychological therapy at the present time, as he is not of a mindset to engage with a psychological approach. Should he choose to engage with psychological therapy I would expect a course of 12 months’ therapy, delivered in weekly hour long sessions would be a reasonable estimate Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 11 March 2017 of what would be required to move Mr Hall-Thomas forward to a point at which he could undertake employment with some confidence of being able to cope. Without psychological therapy Mr Hall-Thomas may well be able to obtain future employment once the Tribunal is resolved. However, I would expect that similar issues of conflict with employers and difficulty managing mental health in the workplace would, more than likely arise, making him vulnerable to losing any future employment.” (11) Dr Waft said that once the Tribunal was resolved then the Claimant “requires a period of rest and a focus on good self- care in order to re-build his resources for applying for work, and holding down employment.” 38. The Tribunal received live evidence from the Claimant. We received no evidence from the Respondent. 39. The Claimant’s witness statement is at pages 90 and 91 of the bundle. The following are the salient passages. (We have numbered the 11 paragraphs for convenience. The numbers below correspond.) :-(2) The Claimant was plainly frustrated and distressed by the Respondent’s failures in decision making. In particular, the Claimant drew attention to the Respondent’s failure to consider alternative duties. (6) The Claimant said that he felt that his health will never recover from what he described as the destruction of it caused by the Respondent. He said that he is left unemployable. He referred to having tried and failed to acquire a vacancy, “but as I have the disciplinary matter of capability, which is essentially gross misconduct, a serious diagnosed mental health condition and now the black cloud of having to have forced my ex-employer to Employment Tribunal court to publicly defend my rights hanging over my head where any member of the public can view, so essentially I am now a militant troublemaker to add insult to serious injury.” 40. Within the bundle were a number of documents included in section E entitled ‘mitigation documents’. These date from November 2016 to date. Some of these were for medical positions (such as those for example at pages 249 and 250). Others were for other areas such as those relating to children’s services and flood and coastal risk management. 41. The following emerged from the cross-examination of the Claimant by Ms Clayton:- a. There was reluctance upon the part of the Claimant to accept Dr Waft’s opinion as to the prospects of at least some recovery in the Claimant’s mental health. The Claimant’s perception was upon the basis that she had seen him on only one occasion and based her opinion upon a series of questionnaires that she asked him to complete when he saw her. b. The Claimant was willing to contemplate acquiring other qualifications to assist his job search. For example, the role with High Peak First Aid Training Limited (at page 249) was as a tutor for which the Claimant would have to attain a teaching qualification. c. By reference to the application made for the role of paramedic at page 250, the Claimant confirmed that he was capable of undertaking the paramedic role. The difficulty that he had when working for the Respondent was the issue of external factors to which we made Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 12 March 2017 reference in RJR paragraph 51. The Claimant said that there were many roles that he could fulfil such as the 111 role which had featured at the merits hearing, working in a trauma desk role, working as part of a team and undertaking work upon contingency planning should there be a terrorist attack and something akin to the floorwalker role that was referred to in the RJR at paragraph 54. d. Page 251 concerned an application made by the Claimant for the role of custody paramedic. This role deals with medical emergencies for those in custody. It was a role in Manchester where it seems such services had been contracted out and are not therefore dealt with by the NHS. e. The Claimant had applied for a position as a logistics technical team member for the British Red Cross. This was for the organisation of a team and equipment to move into disaster areas to give relief. Unfortunately, the Claimant had been unsuccessful in this role. The Claimant considered himself to be a good candidate for the role based upon his military as well as his medical experience.f. Page 254 concerned an application that the Claimant had made as a disability analyst for ATOS Healthcare in respect of Personal Independence Payments. When asked, the Claimant considered that he was capable of undertaking this role.g. Ms Clayton put it to the Claimant that by November and December of 2016 the Claimant considered himself capable of work hence him making applications for roles. With this the Claimant disagreed. He said that he needed to earn a wage which is why he applied for roles.h. The Claimant had applied for roles in Somalia and Afghanistan (pages 255 and 257). These appear to be combined security and medical roles. 42. It was put to the Claimant that there were a number of available vacancies with the Respondent (by reference to pages 264 to 266) for which the Claimant could have applied. The Claimant said that he could not contemplate working for the Respondent again. Vacancies with other NHS Trusts were also in the bundle at pages 267 to 274. The Claimant’s position was that he wished to “steer clear of the NHS having seen how their behaviour is so abhorrent and how it’s mismanaged”. 43. With reference to the Claimant’s evidence at paragraph 6 of his witness statement cited above (at paragraph 39) Ms Clayton suggested to the Claimant that he had not been dismissed for gross misconduct. It was suggested that the stigma which the Claimant attached to the circumstances of his dismissal was thus misplaced. The Claimant said that nonetheless he has got “the sacking” (as he put it), his health and his age all against him which makes it difficult for him in the labour market. He said that he had been out of work now for getting on for three years and had had to take his former employer to a Tribunal. He said that, “winning in the Employment Tribunal is immaterial. I am damned”. 44. Section D of the remedy hearing bundle contains documents around the Claimant’s NHS pension. We can see the application of ill health retirement at pages 229 to 236. This was completed by or on behalf of the Respondent. It sets out the Claimant’s sickness history at page 232. Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 13 March 2017 45. On 9 January 2017 the Claimant was informed by the NHS Pension Scheme that his application for ill health retirement benefit had been accepted. It was determined by the Scheme’s Medical Adviser that the relevant medical evidence indicated on the balance of probability that the Claimant was permanently incapable of efficiently discharging the duties of his NHS employment. Thus, the ‘tier 1’ condition was met. Tier 1 applies in circumstances where there is “a physical or mental infirmity which gives rise to permanent incapacity for the efficient discharge of the duties of the NHS employment”. 46. It was considered by the Adviser that the tier 2 condition was not met. This applies where there is “a physical or mental infirmity which gives rise to permanent incapacity for regular employment of like duration (regard being had to the number of hours, half days and sessions the applicant worked in the NHS employment)”. It was the opinion of the Adviser that the Claimant’s psychological health should gradually improve with ongoing treatment interventions sufficient to enable him to return to alternative regular employment within the next 20 or so years albeit to a less pressured role. The Claimant was therefore granted a tier 1 NHS pension. 47. Details of the tier 1 pension in payment to the Claimant can be found at page 243. This is made up of the Claimant’s years of service in the two schemes that operated during the currency of his employment with the Respondent. It seems that the Claimant was transferred to the 2015 scheme with effect from 1 April 2015. His last day of pensionable employment was 11 October 2015 (the date of expiry of his notice). 48. Pages 244 to 248 are guidance notes to ill health NHS pensions produced by the Respondent. The notes set out key points around the ill health retirement pension scheme and benefits. The guidance notes deal with the issue of a pensioner returning to work when in receipt of a tier 2 pension. The guidance notes are silent as to what happens in circumstances where a pensioner in receipt of a tier 1 pension returns to work (whether in the NHS or not). 49. It is unfortunate that the Respondent did not call any evidence dealing with this issue. This lacuna in the evidence begs a number of questions. May a pensioner in receipt of a tier 1 ill health retirement pension return to work within the NHS? What happens if that pensioner obtains work (whether within or outside the NHS)? May a pensioner re-join the NHS pension scheme if returning to work within the NHS while in receipt of a tier 1 ill health retirement pension? 50. We now turn to our conclusions. We shall start with the Claimant’s pecuniary losses. 51. We find that but for the discriminatory conduct the Claimant would have continued in employment with the Respondent. This employment would not have been in his substantive role but rather in the 111 role. The reason why we have determined this to be the case is our findings upon the previous occasion cited at paragraph 21. Therefore, to put the Claimant in the same position as he would have been in but for the discrimination as found the Respondent shall pay to the Claimant an amount equivalent to the net earnings that he would have received as in then 111 role between 19 December 2014 and 21 November 2017 (being the final day of the remedy hearing). To avoid overrecovery and put him in the position he would have been in but for the Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 14 March 2017 discrimination the Claimant shall give credit for any sums paid to him by the Respondent by way of sick pay and contractual notice pay during the currency of his employment with the Respondent. 52. There shall be no deduction against that head of claim by reason of failure to mitigate. Firstly, the medical evidence is to the effect that the Claimant was simply unfit for work in circumstances where but for the discrimination he would have been fit for a role less stressful than his substantive post. We refer in particular to the reply to the eighth question raised of Dr Waft by the Respondent’s solicitors cited at paragraph 37. Thus, as the Claimant was medically unfit to work by reason of the Respondent’s discriminatory conduct in exacerbating his mental health symptoms it follows that he has not failed to mitigate his loss by not obtaining another role. That the Claimant applied for other roles is not evidence of medical fitness. The Claimant said in crossexamination that had he applied for no roles then the Respondent would have argued a failure to mitigate against him. This was a point well made and we find that in reality that was the reason why the Claimant applied for the roles. Dr Waft’s report is strong evidence that the Claimant was simply unfit for work. Upon that basis, there was no failure to mitigate by him. 53. In the Tribunal’s judgment, it was reasonable for the Claimant to take the view that he could not contemplate work for the Respondent. In our judgment, it is untenable for the Respondent to suggest that the Claimant could contemplate a return to work in an organisation which discriminated against him. It is simply impractical for him to contemplate a return to work there in the circumstances, particularly in view of Dr Waft’s comments (at paragraph 37(10)) about the possibility of workplace conflict in future. However, the Tribunal’s judgment is that it is not reasonable for the Claimant to turn his face against work in the NHS with any other NHS organisation. There is no medical evidence in support of the Claimant’s position. The nearest that one gets to such evidence is paragraph 4.1.11 of Dr Waft’s report cited above at paragraph 36. While she confines her remarks to the finding of alternative work within the private sector she does not say that work within the NHS is medically contra-indicated. 54. The Claimant said in evidence under cross-examination that he was prepared to engage within the therapy recommended by Dr Waft. The reason he has not undertaken that therapy is because he does not have the means to fund it. The Claimant’s account therefore was that he was prepared to engage with the therapy. 55. That the therapy would be of benefit to the Claimant is evident not only from Dr Waft’s report but also from the assessment of those involved in the administration of the Claimant’s NHS pension claim. By way of reminder, the latter opined (at page 240) that “with ongoing treatment interventions” the Claimant should be able to return to alternative regular employment within the next 20 or so years (albeit in a less pressured role than his substantive position as a paramedic). 56. In our judgment, therefore, the evidence is that the Claimant has taken on board Dr Waft’s opinion and has set his mind to acting reasonably by way of mitigation of his losses by positively engaging with the therapy that she recommended. It is plain however that the therapy will only be effective after the litigation has concluded and that the Claimant will only be successful in returning to the workplace after a period of clam has elapsed followed by a Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 15 March 2017 minimum of 12 months of therapy . We refer again to paragraph 4.1.11 of Dr Waft’s report. 57. This is corroborated by her opinion that the Claimant will need some time to recover and re-focus before taking on a new role. We refer to the answer to question 8 at paragraphs 224 and 225 (at paragraph 37). 58. In our judgment, the Claimant’s assessment of his disadvantage on the open labour market by reason of the factors he cites is entirely realistic. He has now effectively been out of practice for three years. He has been out of employment for in excess of two years. To those periods may be added a further period of certainly no less than 12 months and probably realistically a period of around 18 months (to allow for the conclusion of the Tribunal proceedings and the commencement of the therapy). The Claimant will also need the period of calm to which Dr Waft refers before embarking upon a job search. Therefore, by the time the Claimant is in a position to move on and seek employment he will have been out of practice for between four and five years and out of employment for between three and four years. 59. Against that, the Claimant has much to offer. There has never been any suggestion that the Claimant was other than a competent paramedic. He also brings with him the significant and beneficial experience from his days in the Forces. In our judgment, the Claimant would be an asset to any organisation. We also take judicial notice of the fact that many NHS Trusts are having difficulty filling posts. That is unlikely to be a situation which will change in the foreseeable future. 60. Taking all of this into account, the judgment of the Tribunal is that in taking reasonable steps to mitigate his loss and undergo the therapy recommended by Dr Waft, the Claimant may expect to obtain a role commensurate to the 111 role three years from the date upon which the litigation concludes. This is to allow for a minimum 12 months’ therapy, the arranging of the therapy with a suitable therapist, the period of calm recommended by Dr Waft, the job search (by way of application and interview) and the disadvantage in the labour market caused by the Respondent’s discriminatory conduct which will in all probability present an obstacle for the Claimant’s job search and lengthen the time for a successful application. 61. The Respondent shall therefore pay to the Claimant a sum equivalent to the net salary that he would have had in the 111 role between 22 November 2017 (the day after the remedy hearing) and a date three years from the conclusion of the litigation (being a period of three years from the date of promulgation of the final remedy judgment). This will compensate the Claimant for the ongoing loss from the final remedy hearing to the conclusion of litigation, arranging for and undergoing the therapy, the period of clam and the job search. 62. The Respondent shall also pay to the Claimant a sum equivalent to the cost of the therapy recommended by Dr Waft. It is unfortunate that neither party asked her for the relevant figure. However, this can be done before the next remedy hearing. The Respondent’s stance was particularly unhelpful. The Respondent’s position was that the Claimant may mitigate his loss by undergoing the therapy. In those circumstances it is surprising that the Respondent did not ask Dr Waft for the relevant figures. That would have been of help to the Tribunal and in fulfilment of the Respondent’s duty to assist the Tribunal. Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 16 March 2017 63. Dr Waft appears to practice in Wakefield. If she is to undertake the therapy for the benefit of the Claimant then we make no award for travel cost. Taking a broad brush view of matters, such would be de minimis. However, should the Claimant be required to travel elsewhere to undergo the therapy and the cost of travel is not insignificant this cost shall be added to the award. This is an issue to which the Tribunal will have to return the next remedy hearing. 64. We now turn to the pension loss claim. For the reasons already given, there is a great deal of uncertainty about this. The relevant principle is easily stated. The Claimant is entitled to be put back into the position that he would have been in had the discrimination not occurred. Had the discrimination not occurred then the Claimant would have continued to accrue benefits under the 2015 scheme by reason of him fulfilling the 111 role. His loss on the face of it is the difference between the pension benefits that he would have received had he worked to his normal retirement age under the 2015 scheme in the 111 role less the benefits that have been and are being paid to him following the grant to him of tier 1 ill health retirement benefit. 65. In this case however we find that the Claimant will be in a position to seek alternative work. In our judgment, by far the most fruitful source of future employment for him is work within the NHS (other than working for the Respondent). The Tribunal simply does not have the information to adjudicate upon the level of the Claimant’s losses. 66. What can be said is that the Claimant has lost the benefit of accrued benefits under the 2015 scheme from 12 October 2015 that he otherwise would have had to the date of this remedy hearing. What can also be said is that he continues to lose the benefit of membership of the 2015 scheme that would have accrued to him had the discrimination not occurred upon each day that goes by until the time at which he will return to employment (in all probability within the NHS). We have determined that to be a period of three years from the date of the final remedy hearing. He will therefore have lost accrued benefits under the 2015 Scheme (giving credit for member contributions payable by him) over that period of time. 67. If the Claimant is entitled to re-join the 2015 Scheme or become a new member of it in new employment then that will crystallise the Claimant’s loss of pension rights. In that eventuality it should be possible to obtain from the NHS Pension Scheme a projection of the benefits that the Claimant would have had had he remained in the continuous employment of the Respondent to that date (being the date upon which he takes up new employment in the NHS). There will be no ongoing loss after then because he will be entitled to re-join the scheme and accrue the same benefits as he would have done anyway. The compensation is directed at the ‘missing period’ between 12 October 2015 and the date of new employment. 68. A difficulty arises if the Claimant is not entitled to re-join the NHS pension scheme. In that eventuality, then the Claimant will have a more significant loss of pension claim. The matter will then (we have little doubt) be a complex claim for the purposes of the August 2017 Principles for Compensating Pension Loss. On any view, further evidence is required upon this issue in order to enable the Tribunal to make a meaningful assessment. 69. In our judgment, no separate claim appears to arise for the loss of lump sum benefit. The 1995 Scheme carried a benefit of an additional lump sum which Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 17 March 2017 entitlement arises independently of any decision to commute a part of the annual annuity in return for a lump sum. The 2015 Scheme appears not to carry with it any additional lump sum benefit. Had the discrimination not occurred the Claimant would have continued as a member of the 2015 Scheme and therefore would not have accrued any enhancement to the lump sum under the 1995 Scheme. No loss of lump sum benefit thus appears to arise. Accrual had crystallised upon transfer the 2015 Scheme. Therefore, unless subsequent evidence suggests to the contrary, there is no need for the Tribunal to concern itself any further with the issue of loss of additional lump sum. 70. We now turn to the issue of non-pecuniary loss. We start with the claim for personal injury compensation. We have alluded already to the relevant factors in chapter 4 of the Judicial College Guidelines (fourteenth edition). 71. We remind ourselves that the Respondent is only responsible for the injury sustained by the Claimant consequent upon the Respondent’s discriminatory conduct from December 2014. Undoubtedly, the Claimant had significant preexisting mental health issues. That said, Dr Waft’s opinion is clear: that but for the discrimination the Claimant could have continued to work in an alternative role within the Respondent. She referred to significant exacerbation by the Respondent of the Claimant’s mental health symptoms. We refer in particular to paragraph 4.1.7 of her report at page 194 cited above and her answer to question five of the Respondent’s solicitor’s questions (at pages 222 and 223, again cited at paragraph 37 above). It is of course no defence that the Claimant had significant pre-existing mental health issues. The Respondent has to take the Claimant as they found him by application of the ‘eggshell skull’ principle. 72. All of that said, the prognosis for the Claimant cannot be said to be poor. Dr Waft is optimistic as to the prospects of the Claimant following his undergoing the therapy that she recommends. Upon our analysis, therefore, one is looking at a period of injury of around seven years or so (from November 2014 being the commencement of the discriminatory conduct to the conclusion of the litigation, undergoing the therapy and the Claimant obtaining meaningful employment) as attributable to the Respondent’s discriminatory conduct. 73. Looking at the factors in chapter 4 of the JCG Guidelines, the Claimant’s ability to cope with life and work has been profoundly affected. Happily, the discriminatory conduct appears to have not had a significant impact upon the Claimant’s relationship with his adult children. There is optimism that treatment will be successful. The Claimant will have some future vulnerability but that would have been the case in any event given his pre-discrimination medical history. 74. The extract from chapter 4 of the JCG Guidelines produced by Ms Clayton categorise psychiatric and psychological injury into four distinct bands: severe; moderately severe; moderate; and less severe. 75. The severe category is appropriate for cases where there are marked problems with the five identified factors (set out in paragraph 37 above) and the future prognosis is very poor. In our judgment, this case does not come into that category. Prognosis cannot be said to be very poor. 76. The moderately severe category is apt where there are significant problems associated with the first four factors but the prognosis is much more optimistic. Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 18 March 2017 The moderate category is appropriate where there had been marked improvement by trial and prognosis is good. 77. There has not been marked improvement by the time of this remedy hearing. There have been significant problems particularly with the impact upon the Claimant’s ability to cope with life and work. In our judgment, therefore, as the Claimant was presenting at the remedy hearing before the Tribunal (over two years from October 2015 and the end of the course of the Respondent’s discriminatory conduct) without marked improvement the appropriate category within which to place this case is that for moderately severe injuries. The range of awards for general damages for that category of claim is between £16,720 and £48,080. 78. Plainly, the more serious the injury the higher the award. The figure of £48,080 coincides with the bottom of the severe category of cases. Therefore, in our judgment, the correct approach to take is to consider (by reference to the range of factors) how near is any individual claimant to take his or her claim from the moderately severe into the severe category of cases. 79. A key consideration upon that issue is the extent to which the prognosis may be regarded as poor. The poorer the prognosis the more likely a case will be regarded as towards the top end of the moderately severe category (and even into the severe category). It is significant in our judgment that, in this case, the prognosis is reasonably optimistic with the benefit of therapy. The Tribunal recognises entirely the level of injury caused to the Claimant but, based upon the medical evidence before us, this seems to be of finite duration and by way of exacerbation for a period of around seven years in total. 80. Taking into account all of these factors, it is our judgment that the appropriate award to the Claimant by way of general damages for pain, suffering and loss of amenity arising out of the Respondent’s discriminatory conduct is towards the bottom of the moderately severe category by reason of the optimistic prognosis and is in the sum of £20,000. We now turn to the claim for injury to feelings. 81. The Tribunal accepts what is said by the Claimant about his subjective feelings of upset, frustration, worry, anxiety, mental distress and anguish caused by the events with which we have been concerned. The omission to inform the Claimant that if he underwent the relevant training an alternative role would be available for him was a very serious one which ultimately led to the Claimant’s loss of employment. The failure to explain the position to the Claimant was that of Mr Frankowiak and Mr Holdaway. We refer to paragraphs 68 and 115 of the RJR. We also take account of the fact that the failure spanned a period over the Claimant’s final ill health absence from December 2014 to the date of termination of his contract of employment. 82. On any view, therefore, this is a case that does not fall within the lowest Vento band. We did not make any finding that the Respondent had acted as it did towards the Claimant by way of a lengthy campaign of discriminatory harassment. This therefore takes the case out of the highest band. 83. This is a claim therefore that falls within the middle Vento band. Given the period of time during which the Claimant was subjected to the Respondent’s discriminatory conduct (from December 2014) and given the serious impact upon the Claimant it is our judgment that an appropriate award to compensate the Claimant for injury to his feelings is in the sum of £13,200. This is a figure Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 19 March 2017 precisely halfway between the top of the lowest band and the bottom of the highest band and in our judgment fairly reflects where this case sits in the spectrum of discriminatory conduct. In our judgment, this is an appropriate sum inclusive of the 10% Simmons uplift. We agree with Ms Clayton that it is appropriate to take a broad brush approach to this matter rather than seeking to cudgel our minds with the somewhat complex formula set out in the Presidential Direction. 84. In our judgment, this is not a case that warrants an award of aggravated damages. We have little doubt that the Claimant was upset to a considerable degree by the way in which the Respondent handled the matter. However, we do not consider that there was any high handedness, maliciousness or oppressive behaviour. It is our judgment that Mr Frankowiak and Mr Holdaway were guilty of incompetence in how they handled the Claimant’s case. We made no findings that they were motivated to act towards the Claimant by reason of prejudice, animosity, spite or vindictiveness towards him or in a high handed, malicious, insulting or oppressive manner. There was nothing in the Respondent’s subsequent conduct of the case to trial which was offensive. The Respondent was entitled to present a defence and indeed succeeded in defending several of the Claimant’s claims. The conduct of the Respondent’s defence by its solicitors and counsel has been courteous and entirely professional. 85. In summary therefore, the Tribunal’s award is as follows:- a. For past loss of earnings: an amount equivalent to that which would have been earned net of tax in the 111 role from 19 December 2014 to the date of the remedy hearing. b. In respect of future loss (that being deemed to be from 22 November 2017), those losses are to accrue at a daily rate until a date three years from the date of promulgation of the final remedy judgment. c. The Claimant is entitled to loss of pension rights in an amount to be determined upon receipt of further evidence upon the point. d. An award for personal injury for pain, suffering and loss of amenity in the sum of £20,000. e. An award for injury to feelings in the sum of £13,200. 86. Several additional issues arise:- a. There shall be no award for aggravated damages. b. The Claimant shall give credit against the amounts received for past loss of earnings in respect of sick pay and notice pay received. c. The Claimant shall give credit for Employment and Support Allowance that has been paid to him by the State. Were the Claimant not so to do then this would result in over compensation. However, the Claimant need not give credit for continued receipt of Disability Living Allowance to which he had an entitlement in any event and which entitlement did not arise consequent upon the discriminatory conduct. d. There shall be no discount against the compensation for past and future loss of earnings on account of withdrawal factors. There is nothing within the medical evidence to suggest that the Claimant would not have Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 20 March 2017 been fit to work in the 111 role until the projected date of retirement but for the discrimination. Although Dr Waft does say that the Claimant would have had to have some time off with mental health related sickness from time to time had discrimination not occurred, she does not postulate significant periods of absence. There is no evidence that the Claimant was thinking of working elsewhere and leaving his NHS employment anyway prior to the end of 2014. The Respondent sought to argue, by reference to the Claimant’s sickness record at page 232, that had the discrimination not occurred the Claimant may have found himself liable to dismissal in any event. The Tribunal was not presented with the Respondent’s sickness policy for the purposes of the remedy hearing and heard no evidence from the Respondent as to the operation of its sickness policy in terms of managing absence. The managing attendance policy was in the bundle for the merits hearing. However, we were there concerned with the management of the Claimant’s absence pursuant to a period of long term sickness and not for periods of short term ill-health absence. More fundamentally, the Respondent did not refer to the managing attendance policy or any of its sickness policies or guidance notes in the course of the remedy hearing. We heard no evidence from anyone from the Respondent as to the proper application of that policy and guidance from which the Tribunal can properly conclude that the Claimant would have been vulnerable to dismissal anyway even had the discrimination not occurred. The Tribunal takes judicial notice of the fact that such policies normally comprise of stages or steps. However, we received no evidence as to the period of time of which the Claimant may go through those stages and be vulnerable to dismissal. There was such a paucity of evidence upon this issue that the Tribunal is unable to make any findings upon which basis to determine a withdrawal factor upon this issue. e. The Claimant did not make a complaint of unfair dismissal. Accordingly, his claim for enhancement of his weekly salary in a calculation of his past loss of earnings claim is misconceived. f. There shall be no uplift to the compensation by reason of any breach of the Respondent of the ACAS Code of Practice on Disciplinary and Grievance Procedures (2015). The introduction to the Code of Practice says that it is apt for disciplinary situations. The Code is not appropriate for capability dismissals: Holmes v Qinetia Limited [UKEAT/0206/15]. In any event, we hold that the Respondent did comply with the Code of Practice. In short, the Respondent investigated matters, held a capability meeting with the Claimant and allowed him a right of appeal. In a discrimination case, the focus must be upon objective outcomes rather than procedure. We refer in particular to paragraph 142 of the RJR upon the reasonable adjustments claim and paragraph 145 of the RJR upon the section 15 complaint. It was upon the basis of those objective assessments that the Claimant succeeded with his disability discrimination claims. The procedure followed by the Respondent was not in breach of the ACAS Code. Where the Respondent failed was not upon procedural deficiency but upon an objective analysis of the outcome of the case. Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 21 March 2017 g. The Claimant is entitled to interest at the rate of 8% upon past loss beginning with the mid point date and ending on the day of calculation. He is also entitled to interest upon the personal injury and injury to feelings claims for the period beginning on the date of the contravention (that is to say from 19 December 2014) at the same rate. h. There shall be grossing up of the amounts awarded in the Claimant’s favour to take account of the fact that tax will be payable by him in the tax year (or years) in which he receives the compensation. This shall be done by reference to the formula: x divided by (100 – r) multiplied by 100: (where x is the award before grossing up and r is the rate of income tax). Following the decision of the Upper Tribunal (Tax and Chancery Chamber) in Moorthy v Commissioners for Her Majesty’s Revenue and Customs [2016 IRLR 257], HMRC will treat injury to feelings awards in cases of discriminatory dismissals as taxable. Therefore, the amount awarded to the Claimant by the Tribunal for injury to feelings should be included in the award to be grossed up to take account of tax. (Section 406 of the Income Tax (Earnings and Pensions) Act 2003 exempts from employment taxation any amount paid on account of injury to the employee. Thus the amount awarded for pain, suffering and loss of amenity is tax exempt and need not be included in the grossing up calculation). 87. The Respondent shall also pay to the Claimant an amount to be determined in respect of the psychological therapy recommended by Dr Waft. The Claimant shall give credit for one half of the fees of Dr Waft for the preparation of her medico-legal report. According to page 227, her fee is in the sum of £1600 and thus the Claimant’s contribution shall be in the sum of £800. We hold that the Claimant need not make a contribution towards the cost of the questions raised of her by the Respondent’s solicitors. By analogy with the practice in the civil court (under Practice Direction 35 of the Civil Procedure Rules at section 6.2) the cost of a jointly instructed expert in answering questions put to him by one of the instructing parties is to be borne by that party. We can see no reason to depart from that principle in this case. 88. Finally, we turn to the Claimant’s application for an order that the Respondent issue an apology. The Respondent has failed to apologise to the Claimant for the discriminatory conduct. This has been taken into account in our assessment of the injury to feelings award. A recommendation may be made, pursuant to section 124(3) of the 2010 Act, for a Respondent to take specified steps for the purposes of obviating or reducing the adverse effect upon the complainant of any matter to which the proceedings relate. The Claimant is no longer in the employment of the Respondent. The issuing of an apology will not obviate or reduce the adverse effect upon the Claimant of the discrimination which was finite in time between December 2014 and October 2015. Further, the wording sought from the Claimant goes beyond what, in our judgment, may reasonably be expected in an apology anyway. The Claimant is wanting a proper officer of the Respondent to apologise for all damages inflicted upon the Claimant caused by the Respondent’s actions. It seems that none of those involved in the matter from the Respondent’s side at the material time are now with the Respondent and thus Ms Clayton submitted that it would be an unreasonable burden upon somebody not involved in the matter to issue an Case Number: 1803072/2015 10.5 Reserved judgment with reasons – rule 61 22 March 2017 apology in such terms. We agree with Ms Clayton. Therefore, the Claimant’s application for a recommendation in the terms sought is refused. 89. There shall be a further case management discussion before the Employment Judge with a time estimate of three hours in order to discuss the future conduct of the matter. The parties shall file their available dates to attend the case management discussion. This step shall be taken within 14 days of the date of promulgation of this judgment and shall cover the months of January, February and March 2018. Employment Judge Brain Dated: 5 January 2018 Case No: 1803072/2015 10.2 Judgment - rule 61 March 2017 EMPLOYMENT TRIBUNALS Claimant: Mr DH Hall-Thomas Respondent: Yorkshire Ambulance Service NHS Trust Heard at: Leeds On: 20th June 2018 Before: Employment Judge Brain Tribunal Members: Mr T Downes & Mr K Lannaman Representation Claimant: In Person Respondent: Ms B Clayton – Counsel JUDGMENT Following second Remedy Hearing UPON the Tribunal having promulgated judgment following the first remedy hearing which took place on 20 and 21 November 2017 and upon the Tribunal then holding that it would be an unreasonable failure to mitigate loss for the Claimant not to return to work in the National Health Service 3 years from the promulgation of the second remedy judgment it is the Judgment of the Tribunal that:[1]Were the Claimant to return to work in the National Health Service he will do so as a Senior Clinical Advisor in the 111 service at band 6.[2]The amount of compensation payable to the Claimant by way of remedy is in the sum of £392, 522.31 (inclusive of interest and an amount by way of grossing up to defray income tax liability). Credit being given to the Respondent for the amounts paid to date the balance due of £295,491.31 shall be paid on or before 4th July 2018.