Miss S C Hall v Chief Constable of West Yorkshire Police: 1803851/2011

EMPLOYMENT TRIBUNALS

Case No 1803851/2011

Between

Miss S C HallClaimant

Chief Constable of West Yorkshire PoliceRespondent

Before

Employment Judge Howard

Members

Ms L Atkinson

Mr M Brewer

Date 21 July 2017

JUDGMENT

The judgment dated 26 October 2016 is confirmed.

REASONS

[1]Introduction 1.1 This is a hearing before the full Tribunal to reconsider the remedy judgment dated 26 October 2016 solely in respect of the discount rate for pension loss. The Tribunal had concluded that the method of pension loss should be assessed in accordance with the Ogden Tables using a discount rate of 2.5%. The claimant has applied for reconsideration because a new discount rate of -0.75% came into force on 20 March 2017.

[2]The Hearing2.1 In addition to all the material provided at earlier hearings in this matter, the Tribunal had before it two further bundles of documents:- Folder 1 consisting of 346 pages Folder 2 consisting of 71 pages, being a joint authorities bundle.

2.2 No witnesses were called at this hearing.

[3]The Law3.1 The Tribunal has power to reconsider any judgment where it is necessary in the interests of justice to do so. (Statutory Instrument 2013/1237 Schedule 1Rule 70). The power is exercisable either on the Tribunal’s own initiative or on the application of a party. On reconsideration, the decision may be confirmed, varied or revoked. Previously under the 2004 Rules there were five possible grounds for holding a review. There is now only one ground on which a judgment can be reconsidered, namely the interests of justice.

3.2 Under the previous Rules, the interests of justice ground was described as “a residual category of case, designed to confer a wide discretion on Tribunals” (Flint v Eastern Electricity Board

1975 ICR 395

). But whilst the discretion is undoubtedly wide, it was held not to be boundless; it must be exercised judicially and with regard, not just to the interests of the party seeking the review, but also to the interests of the other party and to the public interest requirement that there should be, as far as possible, finality of litigation. In the case of Jurkowska v Hlmad Limited

2008 ICR 841

Lord Justice Rimer said that dealing with cases justly requires that they be dealt with in accordance with the recognised principles. He held that the principles underlying such cases as Flint referred to above remain valid and he singled out for approval the weight that was attached in Flint and other cases to the importance of finality of litigation.

[4]Submissions4.1 Mr Antell for the claimant, referred the Tribunal to the case of Vakante v Addey and Stanhope School

2004 EWCA Civ 1065

. He did not dispute the principle that there would be no error of law on the part of the Tribunal in failing correctly to apply a law which was not in force at the date of its decision. However, he submitted that this principle had nothing to do with the present case where the Tribunal had not yet determined quantum. He argued that the Tribunal always must look at the position at the time of the award itself.

4.2 Mr Mallett for the respondent emphasised that the Tribunal can only reconsider a matter where it is necessary in the interests of justice to do so. He said that it is not necessary in the interests of justice for there to be a reconsideration of an issue which was determined in accordance with the applicable law at the time of the judgment. A reconsideration cannot be made on the basis of a change in the law. It is well established that the applicable law is the law at the time of the decision. There can be no error of law where the Tribunal failed to apply a law which was not in force at the time. That was the principle of the Vakante case referred to above. Mr Mallett argued that the issue of the appropriate discount rate was a central part of the submissions at the remedy hearing. The whole issue was fully argued at that time. The claimant chose not to call any actuarial evidence. The issue was determined after considerable debate and should not be further considered. Paragraph 2 of the remedy judgment confirms that quantum was established in accordance with principles. All that remains is to determine amount. It is clear the Tribunal has made a decision which was correct in law at the time. Changing circumstances thereafter should not lead to a reconsideration. The fact that the Lord Chancellor chose to change the rate thereafter does not mean it is appropriate to reopen the case. Finality of decisions is an important principle. He pointed out that there could be a further change in the discount rate because the Lord Chancellor has started a further consultation on it. If it is changed again it would make a mockery of the law if yet another reconsideration was allowed. He also made the point that just because it makes a considerable difference does not mean that the Tribunal should reconsider it. It makes a considerable difference to the respondent also. It is not a proper consideration to reconsider simply because if determined now it would give the claimant a lot more money. The Tribunal has to balance the interests of both parties.

[5]Conclusions5.1 The Tribunal has carefully considered the submissions from Counsel, both oral and written. In this instance the Tribunal prefers the submissions of Mr Mallett for the respondent. The claimant chose not to call actuarial evidence at the remedy hearing on 9 August 2016. The issue of the correct method of assessing pension loss was fully argued at that hearing. The Tribunal concluded that assessment should be in accordance with the Ogden Tables using a discount rate of 2.5%. The parties were asked to seek to agree the compensation in respect of the claim of discrimination arising from disability in accordance with the decisions of the Tribunal set out in the Reserved Judgment on remedy. All that remained was for the parties to calculate the exact amount of compensation by applying the principles determined by the Tribunal. In the absence of agreement the parties were at liberty to return to the Tribunal. This is what has happened.

5.2 It is clear that the Tribunal made a decision which was correct in law at the time. The Tribunal has to have regard not only to the interests of the party seeking the review but also to the interests of the other party and to the public interest requirement that there should, as far as possible, be finality of litigation.

5.3 Accordingly, on reconsideration, the decision of the Tribunal made on 20 September 2016, and promulgated on 26 October 2016, is confirmed.

[1]The respondent is ordered to pay to the claimant compensation for unfair dismissal in the sum of £8,200 calculated as follows:1.1 Basis award £7,800

1.2 Loss of statutory rights £400

[2]The respondent is ordered to pay to the claimant compensation for discrimination arising from disability in the sum of £162,486 calculated as follows:2.1 Loss to date £57,646

2.2 Future loss £22,593

2.3 Pension loss £51,879

2.4 Injury to feelings £18,000

2.5 Uplift for breaches of ACAS (Code of Practice Disciplinary and Grievance procedures) £10,943

2.6 Interest £1,425

[3]The total the respondent is ordered to pay before grossing up in respect of the awards for unfair dismissal and discrimination arising from disability amounts to £170,686. It is necessary to gross up the amount of compensation so that, once the appropriate amount has been paid in taxation to HM Revenue & Customs, the claimant is left with the figure the Tribunal originally intended to award. On this basis the total grossed up award is £245,481 and this is the sum that the respondent is ordered to pay. ADDITIONAL RESERVED

[1]Introduction1.1 These reasons are additional to those set out in the Reserved Judgment on Remedy promulgated on 26 October 2016.

1.2 This is a hearing to determine the exact level of compensation in respect of the claim of discrimination arising from disability as a result of the parties being unable to reach agreement on the amount to be awarded in accordance with the decisions of the Tribunal as set out in the Reserved Judgment on remedy.

[2]Compensation for discrimination arising from disability2.1 Loss to date: £57,646. The Tribunal has accepted the claimant’s figures here. It was not the intention of the Tribunal to apply a 25% reduction to the loss to date figure.

2.2 Future loss: £22,593 Again the Tribunal has accepted the claimant’s figures for future loss and also has made no reduction to this sum. It was the Tribunal’s intention that the 25% reduction would apply only to pension loss.

2.3 Pension loss: £51,879 The Tribunal has found it difficult to determine the precise amount on the basis of the documentation that was produced at the original remedy hearing and the various submissions made by the parties. The Tribunal does accept that the respondent did raise at the original remedy hearing in August 2016 that there should be a reduction because the claimant intended to retire at 60. This is shown in the respondent’s original counter schedule of loss at page 142 of the bundle and which was used at the remedy hearing on 9 August 2016. There is also mention in paragraph 10 of the respondent’s submissions on remedy provided at that hearing of the need to make an appropriate allowance for early receipt of a pension because of retirement at 60. However, the respondent at the remedy hearing of 9 August 2016 provided only one figure for reduction for early receipt, namely 24% for service between 1 April 2008 and 31 March 2014. This appears at page 142 of the remedy bundle. Although the respondent has subsequently provided a figure of 31% reduction for the period from 1 April 2014 onwards when the pension scheme changed to career average (CARE), this information was not before the Tribunal at the original remedy hearing in August 2016. In addition the Tribunal was asked by the respondent to consider documentation which was both inconsistent and not amongst that which the Tribunal had been asked to read on 9 August 2016. Accordingly the Tribunal is prepared only to consider a 24% reduction for early receipt for the period 1 April 2008 to 31 March 2014. As stated above, the respondent’s counter schedule of loss at pages 141 – 144 only mentions a reduction of pension for the period from 2008 to 2014. This is stated by the respondent to be £611 per annum and would amount to £3,666. (£611 x 6) The respondent’s figure at page 143 also shows a loss of gross benefits of £82, 236. The total projected gross annual pension is shown as £13,881. This would produce a net annual pension of £13,305. The anticipated actual pension of £8,007 per annum is both gross and net. The loss of annual pension is £5,298. Applying the discount rate of 2.5% and the Ogden Multiplier of 14 we arrive at a figure of £74,172. From that is deducted £5,000 as per paragraph 7.5 of the remedy judgment. A 25% reduction as per paragraph 7.1 of the remedy judgment produces a figure of £51,879 for net pension loss.

2.4 Injury to feelings: £18,000 This appears to be accepted by both parties.

2.5 Uplift for breaches of ACAS Code of Practice: £10,943 A percentage increase of 6% referred to in paragraph 7.6 of the judgment on remedy has been applied to the sum of basic award and loss of statutory rights (unfair dismissal), loss to date, future loss, pension loss and injury to feelings awards.

2.6 Interest: £1,425 The Tribunal has calculated this in the way set out in paragraph 5.11 of the judgment on remedy. Interest has only been added to the figures for injury to feelings and loss to date.

2.7 Grossing up It is agreed between the parties that the respondent paid a sum of £137,000 to the claimant on 9 November 2016. It is clear from the email at page 20 of the bundle for the second remedy hearing that the claimant’s solicitors accepted this sum as a payment on account. The Tribunal is satisfied, therefore, that the award will cover two separate tax years, namely 2016/17 and 2017/18. 2016/17 Accepting £137,000 was paid on account in the financial year 2016/17, the Tribunal have used a figure of £18,750 as the claimant’s salary for that year as per page 139 of the original remedy bundle. That appears to be the only figure that the Tribunal has been given for the claimant’s earnings in that tax year. 2017/18 There remains a balance of £33,686 net. The Tribunal has accepted the claimant’s assumed salary for this financial year as £12,660. Unlike the previous financial year there will be a personal allowance which in this case will be £11,500. The Tribunal calculates that the gross figure for 2017/18 will be £42,668. The figures together produce a total grossed up award of £245,481.