Employment Judge JoffeMrs L Mankau (instructed by counsel) for claimantMr S Liberadzki (instructed by counsel) for respondentDate 2 December 2024
JUDGMENT
[1]The complaint of unfavourable treatment because of something arising in consequence of disability is well-founded and succeeds.[2]The following complaints of failure to make reasonable adjustments for disability are well-founded and succeed:a. limiting the claimant’s workplace to Heathrow which is open five days a week from Monday to Friday on a trial basis;b. offering the claimant an alternative station-based CSA role at a station he could travel to consistently with his medical restrictions;c. offering the claimant a role split between two of the following: i. a visitor centre role at Piccadilly Circus; ii. a visitor centre role at Heathrow; iii. a station-based CSA role at a station he could travel to. For any of the combinations which included Heathrow, the reasonable adjustment would be for a trial period, otherwise the reasonable adjustment would be a permanent role.d. providing the claimant with a phased return in his new role. Case Number: 2202546/2023[3]The claimant’s claim of unfair dismissal is well-founded and is upheld. REMEDY JUDGMENT[1]The respondent shall pay the claimant the following sums within 28 days of this Judgment: a) Basic award: £17,130 b) Compensation for past loss of earnings and benefits: £0; c) Compensation for future loss of earnings and benefits (excluding pension loss): £0; d) Compensation for future pension loss: £87,632.78; e) Compensation for injury to feelings: £19,000; f) Interest on compensation for injury to feelings calculated in accordance with the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations.1996: £3947.84.[2]The total award prior to grossing up for tax is £127,710.63.[3]The total award after grossing up for tax is £200,651.46.
REASONS
Issues
[1]There were a number of issues we had to decide in these unfair dismissal and disability discrimination claims: a) The chances of the claimant remaining in the roles which we had determined would be reasonable adjustments until he retired; b) When the claimant would have retired had he remained in the respondent’s employment; c) What his earnings would have been had he remained in the respondent’s employment; d) Should the claimant’s additional travel costs had he been working at Heathrow be set off against these losses? e) Had the claimant failed to mitigate his losses in respect of the employment he had obtained since his dismissal? f) Had the claimant failed to mitigate his losses by virtue of the terms on which he took his pension? g) What sum should be awarded for injury to feelings? Findings
The hearing
[2]We had a bundle for the remedy hearing which ran to 189 pages. We had a further witness statement from the claimant and we heard oral evidence from him. After we made findings on points of principle as set out below, the parties were able to agree the calculations and to that extent, the figures above are agreed figures.
Findings of fact
[3]The claimant said he had intended to work for the respondent until at least his state retirement age in September 2027.[4]So far as working at Heathrow was concerned, the claimant said that the extra 15 minutes travel time would not have stopped him from continuing in that role. He would not have been put off by an additional £100 per week travel costs given the job security and pension implications.[5]The claimant considered that he would have been able to learn any new IT skills required. He had done a course locally to get more comfortable with computers.[6]The claimant had started looking for roles after his dismissal and appeal. After working 25 years for the respondent, he had found it daunting to find new work. He found that he applied for jobs and was not even offered interviews. His options were limited by the fact that he did not have a car and required a commute with toilet facilities.[7]The claimant was offered a position with Sanctuary Care Home on 11 November 2022 as a waking night care and support assistant. He started work on 25 January 2023. There was no offer letter or contract in the bundle. The claimant said it was possible he never got an offer letter. He said that prior to that he had unsuccessfully applied for two roles with Heathrow Express and two security roles as well as a role as a sales assistant at Barnardos.[8]The claimant said that after about ten months with Sanctuary in a role with regular hours, he was moved to an ad hoc role assisting on days out. He explained in oral evidence that it turned out that he was not suitable for some of the personal care tasks with residents, for example helping them to get dressed. He just did not have the aptitude for that task despite the employer being supportive to him. There had been additional training and meetings with his manager. There were no documents. The employer had offered him the ad hoc role instead of letting him go completely. There had not been other more substantial roles available which did not require the personal care element.[9]The claimant told us that he had continued to look for higher paid work but the customer facing roles and other roles he was both able to do and to commute to were largely advertised at minimum wage or near to minimum wage and were often zero hour or short term contracts. He had to juggle looking for new roles initially with learning the role at Sanctuary and getting used to night shifts.[10]During January 2024 the claimant successfully applied for a role at 24 x 7 Group to supplement his income at Sanctuary.[11]The claimant told us about some other roles he applied for: - In July 2023, a civil enforcement officer role with Buckinghamshire Council. He attended an interview but was not successful; - In August 2023, a stage door receptionist role at Aylesbury Waterside Theatre. He attended an interview but was unsuccessful; - He applied for A visitor service assistant role with the Forestry Commission in September 2023 and was placed on a waiting list for a role; - During September 2023, a position as a post person with Royal Mail. He completed an online assessment but was unsuccessful; - During November 2023, a role of retail assistant with Holland and Barrett. He was not invited to an interview; - During December 2023, a civil enforcement officer role with Marston Holdings Limited. He was not offered an interview.[12]In January 2024, the claimant applied for a revenue protection inspector role in High Wycombe and a station host role in Wendover with Chiltern Railways. He attended an assessment day for the first role and was told he would be better suited to another part of the business. He did not hear further about either role.[13]In April 2024, the claimant applied for the position of customer experience ambassador with Chiltern Railways and was unsuccessful after interview.[14]On 5 July 2024, the claimant contacted Red Rose Travel about potential vacancies as they were opening an information centre in Aylesbury.[15]The claimant applied for a station cleaner role in September 2024.[16]The claimant again applied again for a civil enforcement officer role with Buckinghamshire Council during July 2024 but was not shortlisted. However he applied again in September 2024 and was offered a role. He started work on 21 October 2024. After his first day he was informed he had been successful in his application for a station host position with Chiltern Railways. He accepted that role and resigned from the civil enforcement officer role.[17]The claimant started work with Chiltern Railways on 2 December 2024 and remained in that position at the time of the remedy hearing. His pay was somewhat lower than his salary at the respondent. Pension[18]The claimant was a member of the Transport for London pension scheme. He had a various options at the time of his dismissal. He could take: A: His standard pension entitlement which increased after state pension age. There was no lump sum; B: An early lump sum and immediate pension payments; C: Early enhanced payments immediately and lower payments after state retirement age; D: Both B and C: early enhancement and lump sum with lower payments after state retirement age.[19]The claimant opted to take D, an early lump sum and an enhanced early pension. The value of this option overall was lower than some of the other options and the respondent argued that choosing this option was a failure to mitigate.[20]The claimant had received twelve weeks pay in lieu of notice when he was dismissed. He said that he did not have any savings at the time. He had felt his job was secure and his long service payment in the event of a redundancy would have been substantial. He said that he had made the pension choice he did because he was worried about his financial situation. He and his wife still had a mortgage to pay, which was not finishing until the claimant was 69.[21]The claimant’s wife was earning something in the region of £33,000 gross per annum. It was pointed out to the claimant that if he had taken the standard early pension, that and the new job he obtained would have replaced his income. It was put to the claimant that his standard pension from TFL plus his wife’s income would have covered the mortgage and other outgoings.[22]The claimant said that when he was dismissed he was in a state of panic and despair. He did not know whether he would get another job of any description. Even when he had the Sanctuary job, he did not have job security. If he had known he would get the Chiltern Railways job, he might have made a different choice. He had not realised that the overall value of his pension would be reduced by taking the enhanced early pension. He said: ‘I wasn’t in s state of mind to be very calm and logical and plan just out of common sense. I tried to maximise income as there was no guarantee and I was not aware of any substantial premiums being deducted as I trusted TFL pensions.’[23]The claimant said that his wife’s job was not necessarily secure. Companies like the one she worked for had ceased to trade. She worked in HR in the airline industry for a call centre. Competitors had closed call centres and moved them abroad.[24]The claimant said that in his mind he had thought to work if he was fit until his mortgage was finished but for the purposes of his claim had put his retirement date at 66 years and 9 months, which is when he would be entitled to a state pension in September 2027.[25]The Tribunal asked the claimant whether he would have taken a lump sum on retirement had he remained with the respondent. He thought it was possible. There would be the mortgage to pay off and he also had a total of something like £35,000 in credit card debt and loans. He and his wife liked to travel. They were insured against various contingencies, eg critical illness, but the outgoings on insurance were also significant. Effect on feelings[26]The claimant said that his mental health deteriorated after his dismissal. He is anxious about the security of his new role. He said that he had felt ‘fearful, hopeless and empty’ when the respondent dismissed him. Since the dismissal, he has had sleep issues and found it harder to look after himself. He said that he had contacted MIND for support. He has been depressed about his financial situation and his fear of having a diminished retirement.[27]It was put to the claimant that CSA” roles required shift working rather than fixed shifts. He pointed out that that was the advertised requirement but it did not take account of possible reasonable adjustments. He accepted that he needed fixed shifts.[28]The respondent did not call any live evidence but produced data on vacancies for CSA2s as at 1 October 2022 for the stations which the claimant had indicated he could travel to. This seemed to show no vacancies at that date at stations the claimant could travel to. Submissions Respondent[29]The respondent argued that there was a very significant chance of the claimant not succeeding in any of the alternative roles: o Underground journeys always presented a challenge and the claimant had not tried the underground journey plus travel to Heathrow options; o The OH recommendation was for split shifts to reduce the claimant’s fatigue. He had had split shifts for many years, These were not possible at Heathrow; o OH had recommended early starts and finishes but the Heathrow hours were 9 am– 4:40 pm and not adjustable o The difficulty the claimant had encountered with IT training previously presented another risk of the trial failing; o Post covid the claimant had struggled with the underground journey.[30]The respondent said that there was a very high chance of the trial not working out. There was a further chance of him not staying in employment until retirement age. Even if he managed a twelve week trial period there was a real risk it would not have been manageable longer term.[31]There would be a need to allow a reduction to the claimant’s compensation for the cost of travel to Heathrow, approximately £86.54 per week. There was no evidence that the claimant would have received a subsidy from the Access to Work scheme.[32]So far as CSA2 vacancies were concerned there were none at appropriate stations, and there were no fixed shift patterns. The salary and benefits were lower than the claimant’s previous role.[33]The respondent argued that the claimant had failed to mitigate his loss in relation to alternative work. There was very little documentation. There were no terms and conditions for the Sanctuary role and the Tribunal should treat with caution the claimant’s evidence about what had happened to the role. The loss of that role after December 2023 was not explained and there was a failure to mitigate. Claimant[34]On the claimant’s behalf it was said that he had done a longer underground commute (that being the part of the commute without immediate access to toilet facilities) than that required for the Heathrow job for a number of years successfully. The OH recommendations were simply recommendations.[35]As to IT, the claimant was used to the respondent’s IT systems. It was not possible to judge how he would manage with IT from an unstructured piece of training from a manager delivered during the pandemic and at a point when the claimant’s anxiety levels were very high.[36]Mrs Mankau asked the Tribunal to take judicial notice that the Access to Work scheme was able to provide financial support in these circumstances.[37]As for the CSA2 vacancies - The Tribunal had already found that this was a reasonable adjustment. The respondent should have adduced evidence about a lack of roles at the liability stage if it wished to argue that this adjustment was not practicable; - In any event the evidence was just a snapshot on one date.[38]There was no failure to mitigate either in respect of the claimant’s efforts to find new work or in his taking the lump sum and enhanced pension in the circumstances he found himself in.
Law
[39]Compensation for discrimination is governed by sections 119 and 124 Equality Act 2010. We have power to grant any remedy which could be granted by the High Court in proceedings in tort.[40]A claimant is to be put so far as possible in the position he or she would have been in but for the unlawful act: Ministry of Defence v Wheeler [1998] IRLR 23,CA. The type of loss need not be reasonably foreseeable: Essa v Laing Limited [2004] ICR 746.[41]Where the act complained of is a discriminatory dismissal, the tribunal will have to decide whether the complainant would have been dismissed in any event if there had been no discrimination (Abbey National plc v Chagger [2009] ICR 624). 52. The duty to mitigate loss applies. Mitigation[42]In Cooper Contracting Ltd v Lindsey 2016 ICR D3, EAT, Langstaff P summarised a number of principles drawn from the earlier case law that should be used to guide tribunals when considering whether there has been a failure to mitigate loss:(1) The burden of proof is on the wrongdoer; a Claimant does not have to prove that he has mitigated loss.(2) It is not some broad assessment on which the burden of proof is neutral. I was referred in written submission but not orally to the case of Tandem Bars Ltd v Pilloni UKEAT/0050/12, Judgment in which was given on 21 May 2012. It follows from the principle — which itself follows from the cases I have already cited — that the decision in Pilloni itself, which was to the effect that the Employment Tribunal should have investigated the question of mitigation, is to my mind doubtful. If evidence as to mitigation is not put before the Employment Tribunal by the wrongdoer, it has no obligation to find it. That is the way in which the burden of proof generally works: providing the information is the task of the employer.(3) What has to be proved is that the Claimant acted unreasonably; he does not have to show that what he did was reasonable (see Waterlow, Wilding and Mutton).(4) There is a difference between acting reasonably and not acting unreasonably (see Wilding).(5) What is reasonable or unreasonable is a matter of fact.(6) It is to be determined, taking into account the views and wishes of the Claimant as one of the circumstances, though it is the Tribunal's assessment of reasonableness and not the Claimant's that counts.(7) The Tribunal is not to apply too demanding a standard to the victim; after all, he is the victim of a wrong. He is not to be put on trial as if the losses were his fault when the central cause is the act of the wrongdoer (see Waterlow, Fyfe and Potter LJ's observations in Wilding).(8) The test may be summarised by saying that it is for the wrongdoer to show that the Claimant acted unreasonably in failing to mitigate.(9) In a case in which it may be perfectly reasonable for a Claimant to have taken on a better paid job that fact does not necessarily satisfy the test. It will be important evidence that may assist the Tribunal to conclude that the employee has acted unreasonably, but it is not in itself sufficient. Polkey reduction[43]Section 123(1) ERA provides that ‘…the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in the all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer.’ A tribunal will be expected to consider making a reduction of any compensatory award under section 123(1) ERA where there is evidence that the employee might have been dismissed if the employer had acted fairly (see Polkey v AE Dayton Services 1988 ICR 142; King and ors v Eaton (No.2) 1998 IRLR 686).[44]The authorities were summarised by Elias J in Software 2000 Ltd v Andrews and ors [2007] ICR 825, EAT. The principles include: - in assessing compensation for unfair dismissal, the employment tribunal must assess the loss flowing from that dismissal, which will normally involve an assessment of how long the employee would have been employed but for the dismissal; - if the employer contends that the employee would or might have ceased to have been employed in any event had fair procedures been adopted, the tribunal must have regard to all relevant evidence, including any evidence from the employee (for example, to the effect that he or she intended to retire in the near future); - there will be circumstances where the nature of the evidence for this purpose is so unreliable that the tribunal may reasonably take the view that the exercise of seeking to reconstruct what might have been is so riddled with uncertainty that no sensible prediction based on the evidence can properly be made. Whether that is the position is a matter of impression and judgement for the tribunal; - however, the tribunal must recognise that it should have regard to any material and reliable evidence that might assist it in fixing just and equitable compensation, even if there are limits to the extent to which it can confidently predict what might have been; and it must appreciate that a degree of uncertainty is an inevitable feature of the exercise. The mere fact that an element of speculation is involved is not a reason for refusing to have regard to the evidence; - a finding that an employee would have continued in employment indefinitely on the same terms should only be made where the evidence to the contrary (i.e. that employment might have been terminated earlier) is so scant that it can effectively be ignored.[45]As Elias J said in Software 2000: ‘The question is not whether the tribunal can predict with confidence all that would have occurred; rather it is whether it can make any assessment with sufficient confidence about what is likely to have happened, using its common sense, experience and sense of justice. It may not be able to complete the jigsaw but may have sufficient pieces for some conclusions to be drawn as to how the picture would have developed. For example, there may be insufficient evidence, or it may be too unreliable, to enable a tribunal to say with any precision whether an employee would, on the balance of probabilities, have been dismissed, and yet sufficient evidence for the tribunal to conclude that on any view there must have been some realistic chance that he would have been. Some assessment must be made of that risk when calculating the compensation even though it will be a difficult and to some extent speculative exercise.’ Injury to feelings[46]The tribunal has the power to award to compensation to an employee for injury to feelings resulting from an act of discrimination by virtue of sections 124(5) and 119(4) of the Equality Act 2010.[47]The purpose of the award is to compensate the complainant for the anger, upset and humiliation caused by the discrimination.[48]As set out in Prison Service v Johnson [1997] IRLR 162: - Awards should be compensatory and just to both parties; - Awards should not be too low as this would diminish respect for the antidiscrimination legislation; - Awards should bear some broad general similarity to the range of awards in personal injury cases; - In exercising their discretion tribunals should remind themselves of the value in everyday life of the sum they had in mind by reference to purchasing power or earnings and should bear in mind need for public respect for the level of awards made.[49]In determining the amount of the award, we are required to follow the Vento guidelines in place at the date of the discrimination. These were: - Lower band: £990 to £9,900; - Middle band: £9,900 to £29,600; - Upper band: £29,600 to £49,300. Conclusions Basic award
Conclusions
[50]This was agreed at £17,130. Compensation[51]We had to consider the claimant’s chance of remaining in the one of the roles we had identified as a reasonable adjustment: - Trial role Heathrow; - CSA2 role; - Split role (on a trial basis insofar as it involved a Heathrow component).[52]So far as the respondent’s arguments about there being no CSA2 roles available at appropriate stations were concerned, we considered that the time for this evidence and argument had been at the liability stage when we were determining what adjustments were reasonable, which included consideration of what adjustments were practicable.[53]In any event, the evidence provided by the respondent did not tell us whether there were potentially suitable CSA2 roles in the leadup to the claimant’s dismissal.[54]It seemed to us that had the trial period at Heathrow been the first option and had not worked out, the next port of call might have been a CSA2 role. We had no evidence at all as to whether it would have been practicable / reasonable to adjust the shifts in such a role so as to suit the claimant. It was open to the respondent to adduce evidence that it was not practicable, so we proceeded on the assumption that adjustment would have been possible.[55]Because of our findings, there were a number of possibilities, eg some shifts at Picadilly Circus and some at Heathrow or some other split of duties which might well have enabled a split shift to be built in.[56]We considered it was important to bear in mind that the claimant did not have a large number of years to work until retirement age and had a strong motivation to retain this job. He would have wanted one of the roles to work. He had years of managing his disability behind him. He clearly liked his job and was well thought of. We considered once he had settled in a new role, he was likely to have stayed. We did not consider there was any real evidence that he would have been defeated by tech requirements, He had clearly kept up with changing technology over the years; the fact that he had difficulties with one piece of training in difficult circumstances did not seem to us very significant evidence.[57]We also bore in mind that Heathrow in particular would not have included the early starts and finishes which were desirable for the claimant and the additional travel time to Heathrow would have added to his fatigue. We considered there was a measurable risk, looking at all of the various factors, that he would not have been able to carry on working until his planned retirement age and it seemed to us that a reduction of 15% reflected that risk. We concluded the likelihood is that otherwise the claimant would have worked until his state retirement age but not longer.[58]It seemed to us that the issue of ringfencing his pay in a CSA2 role was really a reasonable adjustment which should have been contended for at the liability stage if the argument was going to be pursued. When we looked at the various possibilities – either that he might have been in a lower paid CSA2 role (about £100 a week lower pay) or that he might have had additional travel costs to Heathrow - we considered it was reasonable to assess his pay had he not been dismissed at £50 lower than what he was earning in his customer service role. We were not able to make any assumptions as to whether the claimant would have received assistance form Access to Work. We did also conclude that he had a loss of medical insurance until his normal retirement age of 15 September 2027. Mitigation[59]So far as the claimant’s efforts to obtain new employment were concerned, we accepted the claimant’s evidence about what had occurred with the Sanctuary role. We found him a candid and reliable witness. We considered that the claimant was doing his best in difficult circumstances to find a secure role for himself. His options were limited by his disability and by the range of his skills and experience.[60]So far as the pension option the claimant chose, we bore in mind that the scheme documentation itself did not point out to him that some options were less advantageous overall than others. We did not conclude that the claimant should reasonably have known to get specialist advice. The claimant had significant debts and significant concerns about whether he would obtain a secure replacement role. His wife’s job did not seem to him to be secure. We could not say his choice was unreasonable.[61]So far as calculating the pension loss was concerned, we considered that there was a 90% chance the claimant would have chosen to take a lump sum at his normal retirement age, bearing in mind his desire to travel and the fact that he might have used the opportunity to seek to pay off his mortgage. Injury to feelings[62]We bore in mind that the claimant had not received any medical care for his mental health problems and that he was able to work and to seek new work. We considered that the effect on his feelings was nonetheless significant, given the loss of a career he valued and the fact that he was left feeling very finically insecure. He had to work in a job he was ill-suited to for a period and had two years of struggle before obtaining a more suitable job. This was not a case, however, where the claimant had had to endure humiliating comments or behaviours. We concluded that the appropriate figure was in the middle of the middle band: £19,000.