Mr S Mohamed v The Government of the State of Kuwait: 2206285/2020
EMPLOYMENT TRIBUNALS
Case No 2206285/2020
Between
Mr S MohamedClaimantThe Government of the State of KuwaitRespondent
Before
Employment Judge BrownMr M Sethi QC for respondentDate 24 November 2023
JUDGMENT
[1]Throughout the Claimant’s employment, the Claimant's job functions were exercises of Sovereign Authority and the Respondent had the benefit of state immunity, save in respect of claims for personal injury.[2]The Claimant brought claims against the Respondent for personal injury – namely depression - arising from discrimination and harassment. The Tribunal has jurisdiction under s5 State Immunity Act 1978 to consider those claims for personal injury arising from a statutory tort. Those personal injury claims can continue.[3]The Claimant’s other claims are barred by state immunity.
REASONS
Conclusions
[1]This Open Preliminary Hearing was listed to determine the issue of state immunity in this case, specifically: Whether the Claimant was carrying out functions sufficiently close to the governmental functions of the Respondent so that his employment was a sovereign act. 1 ph outcome jment and case mngmnt 1.5.14 version
Background
[2]By a claim form presented on 28 September 2020 the Claimant, a medical doctor, brings complaints of direct age, sex and disability discrimination, associative disability discrimination, age and disability harassment, s15 EqA discrimination arising from disability, indirect disability discrimination and harassment, including a claim for personal injury damages, unlawful deductions from wages and a failure to pay holiday pay, against the Respondent.
The hearing
[3]Part of the Claimant’s claim is for personal injury arising out of dismissal.[4]I heard evidence from the Claimant and from Dr Wafaa El Sankary, Head of the Medical Auditing Department at the Kuwaiti Health Office. There was a Bundle of documents. Both parties made written and oral submissions. I reserved my decision. Findings of Fact - The Claimant’s Job[5]The Claimant is a British citizen. He was employed by the Respondent from 5 May 2009 until 20 May 2020.[6]The Claimant’s written employment contract, p102, is entitled, “Employment Contract for Locally Engaged Staff of Diplomatic Missions of the state of Kuwait” (“Contract”). It is a contract for the employment of staff of diplomatic missions of the sending state.[7]It identifies the “First Party” to the Contract as the employer, namely, “The Government of The State of Kuwait”, which is “in London represented by the Head of the Mission”.[8]The Contract is signed on behalf of the representative of Kuwait by its Head of Mission and bears the official seal of the “Embassy of Kuwait”.
The Law
[9]It states the Claimant’s role to be “Dr” … “at the Embassy of Kuwait in London”.[10]This contract was a one year fixed term contract. It was renewed continuously until the Claimant’s dismissal.[11]The Claimant worked at the Kuwaiti Health Office, which is part of the Kuwaiti Embassy and therefore part of the State of Kuwait. I accepted Dr El Sankary’s evidence that the KHO’s functions include: representing the State of Kuwait in the United Kingdom; protecting the interests of the State of Kuwait and its nationals in the UK; and monitoring the state of medical expertise and treatment in the UK and reporting back to the State of Kuwait, amongst other matters. It therefore carries out at least some sovereign functions on behalf of the State of Kuwait.[12]The KHO is an international health service offered by the state of Kuwait to all Kuwaiti nationals when the Kuwaiti health service cannot provide a specific treatment to a patient. In those circumstances, the Kuwaiti health service refers the patient to the Ministry of Health’s ‘Treatment Abroad Department’, which, in turn, refers the patient to a health offices abroad, like the KHO in London. The UnderSecretary of the Ministry of Health in Kuwait is required to give approval for the 2 ph outcome jment and case mngmnt 1.5.14 version referral. As well as the Under-Secretary of the Ministry of Health in Kuwait making referrals, referrals can also be made directly to the KHO by the Kuwaiti sovereign, His Royal Highness, the Emir of Kuwait, through the Emiri Dewan (the Royal Household).[13]Once approval has been given by the Under-Secretary of the Ministry of Health in Kuwait, a patient will travel to the UK for their treatment and the KHO will create a patient file. The patient file will include confidential and sensitive information about the patient, including their detailed medical history, contact details, and next of kin details.[14]It was not in dispute that the KHO has a patient database, containing all patient files. These files include files for patients referred to the KHO by the Emiri Dewan, or Royal Household. Access to the database provides access to all such records. If a patient’s allocated Doctor is on annual leave, another Doctor can therefore deal with the patient during that time.[15]The status of a particular patient is apparent on the medical database due to the way their details are entered onto the system. If a patient is part of the Royal Family in Kuwait, they are given the prefix ‘Al-Sabah'. If a patient is a Prince or Princess, they will be given the pre-fix ‘Sheikh’ or ‘Sheikha’, followed by the surname of the Royal Family, ‘Al-Sabah'. If a patient is a diplomat, they will have a unique KHO reference number which begins with ‘ES’. Invoices relating to diplomats are called ‘Executive invoices’.[16]There was a dispute as to which employees of the KHO have access to the database. Dr El Sankary told the Tribunal that only those who need to access it in their work, including the Health Attaché, Medical Auditors and in-house Doctors have this access. The Claimant told the Tribunal that all employees, including porters who greet visitors to the KHO, have access.[17]Dr El Sankary told the Tribunal that the Respondent’s IT department gives different permissions to different users of the database. Each person has their own username and password. Permissions are attached to the individual usernames. I will return to this matter.[19]Once a KHO patient arrives in the UK, they are allocated to an in-house Doctor at the KHO. The in-house Doctor is responsible for arranging all required treatment for the patient while they are in the UK. Such treatments can include chemotherapy for cancer, or complex surgeries, or psychiatric assessments. Before the allocated Doctor can appropriately refer the patient for treatment, they need to understand the patient’s medical history. The doctor therefore needs to review the patient’s medical file, together with any medical reports.[20]A KHO Medical Auditor is responsible for reviewing invoices presented by private UK hospitals for treatment of patients. The auditor needs to ensure that the relevant patient’s treatment was necessary, has been authorized and that the cost of the patient’s treatment(s) matches the fees agreed between the KHO and the treating hospital. 3 ph outcome jment and case mngmnt 1.5.14 version[21]In order to assess whether treatment was necessary, the Medical Auditor needs to review a patient’s medical records, including any medical reports from the hospital.[22]The Claimant worked as an in-house doctor at the KHO from 2009 until 2015, when his role changed to both medical auditor and in-house doctor. From 2017, the Claimant worked as a medical auditor only.[23]The Claimant agreed in evidence that he had access to the KHO database and to the medical reports on it when he needed them for his job.[24]From the evidence in the Bundle, the Claimant had approved at least one invoice for medical treatment of a member of the Kuwaiti Royal Household, p178 – 179.[25]I decided that the Claimant had access to the database and permission to view all the medical reports on it which were relevant to his treatment of patients, when he was a doctor, and to his approval of invoices, when he was an auditor.[26]Even if other employees had access to the database for some purposes, I considered that basic patient confidentiality would dictate that general workers, like porters, would not have permission to read medical reports of patients.[27]Dr El Sankary told the Tribunal that she believed that the Claimant’s claim called into question the State’s policies on requiring its employees to attend work during the COVID-19 pandemic and the lawfulness of the Regulations for Locally Engaged Staff at diplomatic missions of the State of Kuwait and such decisions and circulars as implement those Regulations. She told the Tribunal that the Respondent was therefore concerned that the nature of the discrimination allegations and the nature of any investigation by a Tribunal into those allegations, will involve an investigation into the sovereign acts of the State of Kuwait. Relevant Law: State Immunity Law and EU Law[28]Foreign states enjoy a general immunity from the jurisdiction of the courts in the UK, pursuant to the State Immunity Act 1978. By SIA 1978 s 1(1): 'A state is immune from the jurisdiction of the courts of the UK, except as provided in the following provisions of this Part of this Act'. State Immunity: Contracts of Employment[29]However, state immunity does not apply in the case of proceedings relating to a contract of employment between the state and an individual where the contract was made in the UK or the work is to be wholly or partly performed there, s 4(1) SIA. On the other hand, s4(1) SIA itself does not apply if:(a) at the time when the proceedings are brought the individual is a national of the state concerned; or(b) at the time when the contract was made the individual was neither a national of the UK nor habitually resident there; or(c) the parties to the contract have otherwise agreed in writing, s 4(2) SIA.[30]S 4(1) SIA also does not apply to proceedings concerning the employment of the members of a mission within the meaning of the Vienna Convention on Diplomatic 4 ph outcome jment and case mngmnt 1.5.14 version Relations or the members of a consular post within the meaning of the Vienna Convention on Consular Relations (“VCDR”), s 16(1)(a) SIA.[31]Art 1 VCDR defines:(1) The “members of the mission” as including “members of the staff of the mission”: art 1(b);(2) The “members of the staff of the mission” as including “members … of the administrative and technical staff … of the mission”: art 1(c); and(3) “The “members of the administrative and technical staff of the mission” are the members of the staff of the mission employed in the administrative and technical service of the mission”: art 1(f).[32]Thus, where the provisions of s 4(2) or s 16(1)(a) apply, state immunity can operate to prevent employees from bringing claims relating to their contract of employment.[33]However, Art 6.1 European Convention on Human Rights (“ECHR”) provides: “In the determination of his civil rights and obligations…., everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”[34]Art 47 Charter of Fundamental Rights of the EU provides: “47 Right to an effective remedy and to a fair trial Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this article.”[35]In Benkharbouche v Secretary of State for Foreign and Commonwealth Affairs; Secretary of State for Foreign and Commonwealth Affairs and Libya v Janah, [2018] IRLR 123, [2017] ICR 1327, the Supreme Court decided that the doctrine of state immunity in international law applied only sovereign acts, not private acts, of the foreign state concerned. “The rule of customary international law is that a state is entitled to immunity only in respect of acts done in the exercise of sovereign authority” [37].[36]Whether there has been such an act in relation to employment will depend on the nature of the relationship between the parties, and this in turn will depend on the functions that the employee was employed to perform [54].[37]At [55] Lord Sumption distinguished between the three categories of embassy staff as follows: “The Vienna Convention on Diplomatic Relations divides the staff of a diplomatic mission into three broad categories:(i) diplomatic agents, ie the head of mission and the diplomatic staff;(ii) administrative and technical staff; and(iii) staff in the domestic service of the mission. Diplomatic agents participate in the functions of a diplomatic mission defined in article 3, principally representing the sending state, protecting the interests of the sending state and its nationals, negotiating with the government of the receiving state, ascertaining and reporting on developments in the receiving state and promoting friendly relations with the receiving state. These functions are inherently governmental. They are exercises of sovereign authority. Every aspect of the employment of a diplomatic agent is therefore likely to be an exercise of sovereign authority. The role of technical and administrative staff is by comparison essentially ancillary and supportive. It may well be that the employment of some of them might also be exercises of sovereign authority if their functions are sufficiently close to the governmental functions of the mission. Cypher clerks might arguably be an example. Certain confidential 5 ph outcome jment and case mngmnt 1.5.14 version secretarial staff might be another: see Governor of Pitcairn and Associated Islands v Sutton (1994) 104 ILR 508 (New Zealand Court of Appeal). However, I find it difficult to conceive of cases where the employment of purely domestic staff of a diplomatic mission could be anything other than an act jure gestionis. The employment of such staff is not inherently governmental. It is an act of a private law character such as anyone with the necessary resources might do.”[38]At [56] he said that the approach he set out was supported by the case law of the European Court of Human Rights, “[56] This approach is supported by the case law of the European Court of Human Rights, which I have already summarised. In Cudak v Lithuania 51 EHRR 15, Sabeh El Leil v France 54 EHRR 14, Wallishauser v Austria CE:ECHR:2012:0717JUD000015604 and Radunovic v Montenegro 66 EHRR 19, all cases concerning the administrative and technical staff of diplomatic missions, the test applied by the Strasbourg court was whether the functions for which the applicant was employed called for a personal involvement in the diplomatic or political operations of the mission, or only in such activities as might be carried on by private persons.”[39]In paragraphs [64] – [67] and [70] – [71], Lord Sumption had already cited at length from Cudak v Lithuania (2010) 51 E.H.R.R. 15.[40]In Cudak the applicant had been hired as a secretary and switchboard operator by the Embassy of Poland in Vilnius. Her duties were stipulated in her contract and were those normally expected of such a post. In 1999, the applicant complained to the relevant Ombudsman in Lithuania that she was being sexually harassed by one of her male colleagues as a result of which she had fallen ill. She brought an action for unfair dismissal before the civil courts. The courts declined jurisdiction on the basis of state immunity, which had been invoked by the Polish Ministry of Foreign Affairs. The Lithuanian Supreme Court held that the applicant had exercised a public service function during her employment with the Embassy, and that, merely on the basis of the title of her position, her duties facilitated the exercise by Poland of its sovereign functions such that the doctrine of State immunity was applicable. Relying on art.6(1), the applicant complained to the European Court of Human Rights that the dismissal of her claim by the domestic courts violated her right of access to a court. The ECHR decided that the applicant’s art 6 right had been breached. At paragraphs [64] and [70] the ECHR said “[64] In this connection, the Court notes that the application of absolute state immunity has, for many years, clearly been eroded. In 1979 the International Law Commission was given the task of codifying and gradually developing international law in the area of jurisdictional immunities of states and their property. It produced a number of drafts that were submitted to states for comment. The draft articles it adopted in 1991 included one—art.11—on contracts of employment. In 2004 the United Nations General Assembly adopted the Convention on Jurisdictional Immunities of States and their Property.”.. [69] … the applicant was not covered by any of the exceptions enumerated in art.11 of the International Law Commission’s Draft Articles: she did not perform any particular functions closely related to the exercise of governmental authority. In 6 ph outcome jment and case mngmnt 1.5.14 version addition, she was not a diplomatic agent or consular officer, nor was she a national of the employer state. …” . [70] The Court observes in particular that the applicant was a switchboard operator at the Polish Embassy whose main duties were: recording international conversations, typing, sending and receiving faxes, photocopying documents, providing information and assisting with the organisation of certain events. Neither the Lithuanian Supreme Court nor the respondent Government have shown how these duties could objectively have been related to the sovereign interests of the Polish Government. Whilst the schedule to the employment contract stated that the applicant could have been called upon to do other work at the request of the head of mission, it does not appear from the case file—nor has the Government provided any details in this connection—that she actually performed any functions related to the exercise of sovereignty by the Polish State.”[41]It is notable that Lord Sumption said, at [26] and [29] Benkharbouche, regarding the judgment of the ECHR in Cudak, “[26] The court was therefore right to regard these provisions of draft article 11 as applying the restrictive doctrine of state immunity to contracts of employment, and as foreshadowing, in that respect, the terms of the Convention.” … “[29] …Article 11 codifies customary international law so far as it applies the restrictive doctrine to contracts of employment. That would have been enough for Ms Cudak’s .. purposes. So far as article 11 goes beyond the application of the restrictive doctrine, its status is uncertain… It would perhaps have been better if the Strasbourg court had simply said that employment disputes should be dealt with in accordance with the restrictive doctrine ..”.[42]The “restrictive doctrine” in this context recognises state immunity only in respect of acts done by a state in the exercise of sovereign authority (jure imperii), as opposed to acts of a private law nature (jure gestionis).[43]In Governor of Pitcairn and Associated Islands v Sutton (1994) 104 ILR 508 New Zealand Court of Appeal, the parties had agreed the following facts in relation to the employee’s role: “ THE applicant, Mrs Sutton, was employed by His Excellency the Governor at the Office at [sic] the Governor of Pitcairn in Auckland. The applicant was employed in the position of typist/clerk. The applicant’s duties comprised the provision of all typing and secretarial services necessary to operate the Office of the Governor, including typing all communications between the Governor, the Commissioner and Pitcairn, including the Governor’s official instructions, and registering all mail going into and out of the Office of the Governor. Essentially Mrs Sutton was employed by the Governor in order to assist in the carrying out of the Governor’s administrative functions as the Governor of Pitcairn.”[44]Article 3 of the Convention on Diplomatic Relations (Vienna, 18 April 1961; TS 19 (1965); Cmnd 2565 provides: 1.The functions of a diplomatic mission consist, inter alia, in:(a) Representing the sending State in the receiving State; 7 ph outcome jment and case mngmnt 1.5.14 version(b) Protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law;(c) Negotiating with the Government of the receiving State;(d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State;(e) Promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations.[45]The SC in Benkharbouche decided that, with regard to purely domestic staff employed in a diplomatic mission, their employment is not an inherently governmental act, but is an act of a private law character, and there is no basis in customary international law for the application of state immunity in an employment context to such acts. The wider immunity conferred in such employment cases by ss 4(2)(b) and 16(1)(a) State Immunity Act 1978 was therefore inconsistent with art 6 European Convention on Human Rights, and art 47 Charter of Fundamental Rights of the EU.[46]Following Benkharbouche, Tribunals do have jurisdiction to hear complaints brought by domestic staff against foreign states based on EU law, if the employment relationship is of a purely private law character. Tribunals also have jurisdiction to hear complaints brought by administrative staff, if the employment relationship was of a purely private law character. Art 47 of the Charter provides for the right to an effective remedy and a fair trial. The Supreme Court decided that the Charter therefore provided the power to disapply the provisions of the SIA 1978 entirely to ensure that the Claimants were able to pursue an effective remedy for the alleged contravention of their EU law rights.[47]For employment claims before IP completion day (31 December 2020), the general principles in the Charter continue to apply and Claimants can rely on the Charter, as described in Benkharbouche, to disapply the SIA where it is incompatible with those general principles (Withdrawal Act 2018 Sch 8 para 39(3)). Sovereign Acts in Private Law Employment[48]At [57] - [58] Benkharbouche, Lord Sumption cautioned against the suggestion that, because the employment of an employee is of a private law character, state immunity does not attach to any act of the state in relation to that employment. He gave examples of where state immunity could attach to particular acts of a state in relation to an employee.[49]He said, “[57] I would, however, wish to guard against the suggestion that the character of the employment is always and necessarily decisive. Two points should be made… [58] The first is that a state’s immunity under the restrictive doctrine may extend to some aspects of its treatment of its employees or potential employees which engage the state’s sovereign interests, even if the contract of employment itself was not entered into in the exercise of sovereign authority. Examples include 8 ph outcome jment and case mngmnt 1.5.14 version claims arising out of an employee’s dismissal for reasons of state security. They may also include claims arising out of a state’s recruitment policy for civil servants or diplomatic or military employees, or claims for specific reinstatement after a dismissal, which in the nature of things impinge on the state’s recruitment policy. These particular examples are all reflected in the United Nations Convention and were extensively discussed in the preparatory sessions of the Inter-national Law Commission. They are certainly not exhaustive. United States v Public Service Alliance of Canada, Re Canada Labour Code [1993] 2 LRC 78, [1992] 2 SCR 50 concerned the employment of civilian tradesmen at a US military base in Canada. The Supreme Court of Canada held that while a contract of employment for work not involving participation in the sovereign functions of the state was in principle a contract of a private law nature, particular aspects of the employment relationship might be immune as arising from inherently governmental considerations, for example the introduction of a no-strike clause deemed to be essential to the military efficiency of the base. In these cases, it can be difficult to distinguish between the purpose and the legal character of the relevant acts of the foreign state. But as La Forest J pointed out ([1993] 2 LRC 78 at 89, [1992] 2 SCR 50 at 70), in this context the state’s purpose in doing the act may be relevant, not in itself, but as an indication of the act’s juridical character.” Discussion and Decision Private Law Employment – Jurisdiction to Hear EU Law Complaints[50]I considered, first, whether the Respondent’s employment of the Claimant was an exercise of sovereign authority. If it was not, the Tribunal has jurisdiction to hear his complaints against the Respondent based on EU law. Nature of the Contract Itself[51]The Respondent contended, first, that the Claimant’s employment contract itself was an exercise of sovereign authority. It did so relying on the following features of the employment relationship: 51.1. The written contract of employment [p102] is titled: “Employment Contract for Locally Engaged Staff of Diplomatic Missions of the state of Kuwait” (“Contract”). The Respondent contended that the contract was clearly a contract for the employment of staff of diplomatic missions of the sending state. 51.2. The contract identifies the “First Party” to the Contract as the employer, namely: “The Government of The State of Kuwait”. The employer is said to be “in London represented by the Head of the Mission”. 51.3. The Contract is signed on behalf of the representative of Kuwait by its Head of Mission. The Contract bears the official seal of the “Embassy of Kuwait”. 51.4. The KHO is a diplomatic mission of the State of Kuwait in the UK. The KHO represents Kuwait and its Ministry of Health in the UK. It is part of the Embassy of Kuwait in London. 9 ph outcome jment and case mngmnt 1.5.14 version 51.5. The KHO in the UK carries out sovereign functions on behalf of the State of Kuwait. 51.6. Under his contract Clause 1, the Claimant was employed as a Doctor and the place of work was expressly stated to be “at the Embassy of Kuwait in London”. Under clause 5: “During the term of the Validity of this contract the second party shall be subject to the regulations for locally-Engaged staff employed at Diplomatic Missions of The State of Kuwait and such decisions and circulars as implement those regulations, where there is no specific provision in this contract.” 51.7. Under clause 6: “Any Dispute which may arise between the parties as to the implementation or interpretation of the contract shall be subject to the generally acknowledged principles of International Law.”[52]I disagreed. The Respondent appeared to be arguing that, because the Claimant was employed as a member of staff by the State, to work at the Mission, which carries out sovereign functions, his employment was an act of sovereign authority.
Conclusions
[53]The Respondent’s submission appeared to be inconsistent with the dicta of Lord Sumption in Benkharbouche, at [37], [54] and [55] and the approach of the ECHR in, for example, Cudak v Lithuania.[54]In Benkharouche, Lord Sumption made clear that, “The rule of customary international law is that a state is entitled to immunity only in respect of acts done in the exercise of sovereign authority” [37]. Whether there has been such an act in relation to employment will depend on the nature of the relationship between the parties, and this in turn will depend on the functions that the employee was employed to perform [54].[55]The test for whether the employment of an employee is an exercise of sovereign authority is therefore not whether the employee is employed by a State, to work at the Mission, or whether the Mission itself carries out sovereign functions.[56]In Benkharbouche [55], having identified 3 categories of staff employed in a Mission, Lord Sumption suggested that technical and administrative staff, in general, exercise ancillary and supportive functions. He did not suggest that their employment was an exercise of sovereign authority simply because they were employed by the state to work at the mission and/or in support or assist the governmental functions of the mission. Rather, he says that the employment of “some of them” might also be exercises of sovereign authority if their functions are “sufficiently close” to the governmental functions of the mission (emphasis added).[57]Lord Sumption’s examples of such administrative staff, whose functions might be “sufficiently close” to the governmental functions of the mission, were Cypher clerks and confidential secretarial staff. Such employees are necessarily privy to highly confidential governmental communications. On the agreed facts in Governor of Pitcairn and Associated Islands v Sutton, the secretary typed “all communications between the Governor, the Commissioner and Pitcairn, including the Governor’s official instructions”. Her role therefore encompassed typing governmental-level communications. 10 ph outcome jment and case mngmnt 1.5.14 version[58]Likewise, in Cudak v Lithuania, the applicant was employed at the Polish Embassy in Vilnius. The functions of an Embassy are defined in Art 3 VCDR. The functions of administrative staff at Embassies are inherently likely to be supportive of the activities set out in Art 3. However, the ECHR did not suggest that, because the applicant was employed in the Embassy, and carried out administrative functions there, that her employment should be considered to be an act of sovereign authority.[59]I therefore rejected the Respondent’s contention that the employment of the Claimant was an act of sovereign authority because he was employed by the State, to work at the Mission, which carries out governmental functions. Job Functions[60]The Respondent also contended that the functions performed by the Claimant in his role fell within the sphere of governmental or sovereign activity and were not of a purely private law character.[61]I decided that the Claimant’s functions, as a member of the Respondent’s administrative staff, were sufficiently close to the governmental functions of the mission to attract state immunity.[62]I noted Lord Sumption’s description of the nature of the functions of a diplomatic mission, at para [55], as “.. principally representing the sending state, protecting the interests of the sending state and its nationals, negotiating with the government of the receiving state, ascertaining and reporting on developments in the receiving state and promoting friendly relations with the receiving state. These functions are inherently governmental. They are exercises of sovereign authority.” The role of technical and administrative staff is by comparison essentially ancillary and supportive. They might also exercise sovereign authority if their functions are sufficiently close to the governmental functions of the mission.[63]The Claimant contended that the fact that he had access to confidential documents was not sufficient for sovereign immunity to apply. He contended that all employees at the KHO had this access. He said that he was part of the technical and administrative staff of a diplomatic mission, but did not undertake any governmental authority or functions closely related to the exercise of governmental authority.[64]I did not agree. The doctors of the KHO, of whom the Claimant was one, are responsible for protecting the interests of Kuwaiti nationals referred to the KHO for medical treatment, expressly authorised by the governmental act of the UnderSecretary of the Ministry of Health in Kuwait and/or the Emir of Kuwait.[65]The nationals who were referred to the KHO during the Claimant’s employment included members of the Kuwaiti Royal family and senior government officials.[66]As an allocated doctor to these individuals, the Claimant was required to arrange the patient's treatment while they were in the UK. This included reviewing reports received from UK hospitals concerning the medical condition of KHO registered 11 ph outcome jment and case mngmnt 1.5.14 version patients. Until 2017 the Claimant’s functions as an allocated doctor were fundamental to protecting the interests of the sending state, through safeguarding the health of its ruling family and senior government officials[67]Even when acting as a Medical Auditor, he was responsible for safeguarding the medical treatment of ruling family and senior government officials.[68]In order to undertake both his roles, the Claimant needed to have knowledge of the patients’ medical conditions. Even after 2017, the Claimant had access to the patient database containing confidential information regarding the medical condition of the patients at the KHO.[69]Throughout his employment, therefore, including after 2017, the Claimant had access to highly confidential information relating to the health of the members of the Kuwaiti Royal family and government. This information could be used by foreign governments, or hostile agents, to undermine the ruling family or the Kuwaiti government.[70]I considered that the Claimant’s tasks were not merely administrative and ancillary to the functions of the mission. The Claimant had personal responsibility for decision-making in relation to the health of royal family members and government ministers and in safeguarding confidential information relating to senior officials of state.[71]The Claimant’s employment was an exercise of sovereign authority. Discussion and Decision - Acts of Sovereign Authority in Private Law Employment[72]The Respondent also contended that the Claimant’s claims concern acts of sovereign authority, which the Tribunal is not permitted to examine. In particular, 72.1. The Claimant alleges that the State’s PCP under Art 33(7) of the Kuwaiti Regulation on Local Employees and Workers 1999 (governing dismissal for reaching state retirement age) infringes “the Employment Equality )repeal of retirement provisions) regulation 2011 which prohibits the compulsory retirement taking place after 5th October 2012” – paragraph 24 of the Claimant’s Particulars of Claim and “discriminates against elderly people in contravention of sections 19 of the Equality Act 2010, who would otherwise choose to continue working until they are no longer capable of doing so, forcing them to retire; while their younger counterparts enjoy the benefits of working life” – paragraph 25 of his Particulars of Claim.; 72.2. The Claimant further alleges that the State’s PCP under Art 33(4) of the Kuwaiti Regulation on Local Employees and Workers 1999 (governing dismissal for “inappropriate health”) contravenes “section 15 of the Equality Act 2010, which prohibits discrimination arising from disability. The Claimant’s health condition falls within the definition of disability provided under section 6 of the Equality Act 2010.” – paragraph 26 of the Particulars of Claim; and 72.3. He alleges that the State’s PCP of requiring its employees to attend the workplace during the COVID-19 pandemic was unlawful – “the Respondent’s policy/rule or measure which required all staff members to return to work by the 1st of June 2020. This policy/rule or measure put in place indirectly 12 ph outcome jment and case mngmnt 1.5.14 version discriminated against the Claimant as his age and disability meant he could not return to work as he was required to self- isolate while those members of staff who did not share the Claimant’s protected characteristics could return to work.”[73]The Respondent pointed out that one of the Claimant’s harassment allegations was that “The Respondent relying on the Kuwait local regulations/articles when dismissing the Claimant on the grounds that he had reached retirement age. This Article forces retirement of those aged 60 and 70. Default retirement age was outlawed in the UK in 2011” – Particulars of Claim paragraph 37.d.[74]Regarding the alleged requirement to return to work during the pandemic, I noted that the Claimant had not pleaded that the State, itself, had a rule requiring employees to return to the workplace during the pandemic. He had originally brought his claim against “The Kuwait Health Office”. He had pleaded that the KHO had required “staff members” to return to work. As a matter of construction, he had alleged that this rule was applied by the KHO to its staff, not that there was any broader governmental instruction towards state employees generally.[75]I therefore rejected the Respondent’s argument that the Claimant’s complaint in relation to the instruction to work from the office related to any sovereign act.[76]I noted Lord Sumption’s observations in [58] of Benkharbouche and the case of United States v Public Service Alliance of Canada, Re Canada Labour Code [1993] 2 LRC 78, [1992] 2 SCR 50 to which he referred. That case concerned the introduction of a no-strike clause into all civilian employees’ contracts of employment, as the State had decided that this was essential to the military efficiency of the base. Lord Sumption observed, “In these cases, it can be difficult to distinguish between the purpose and the legal character of the relevant acts of the foreign state. But as La Forest J pointed out ([1993] 2 LRC 78 at 89, [1992] 2 SCR 50 at 70), in this context the state’s purpose in doing the act may be relevant, not in itself, but as an indication of the act’s juridical character.”[77]The United States v Public Service Alliance of Canada, Re Canada Labour Code involved a challenge to introduction of the clause. It challenged the legality of the rule itself.[78]In the present case, however, I decided that the Claimant’s case concerned the application of the rule to him, rather than the introduction of the rule itself.[79]Insofar as there will be an examination of the lawfulness of the relevant PCP, it will involve deciding whether the application of the PCP to the Claimant, himself, was a proportionate means of achieving a legitimate aim. That appeared to be a matter of private, rather than public, law.[80]I noted that, on his pleaded facts, the Claimant was well over the state retirement age when he was dismissed. The question for the Tribunal will therefore be whether the particular decision to dismiss the Claimant was lawful.[81]Regarding his harassment claim, again the Claimant complains of the fact of the application of the rule to him; he complains of his own dismissal because he was a 13 ph outcome jment and case mngmnt 1.5.14 version particular age. The legal test for harassment does not require any broader examination of the legitimacy of the rule.[82]Regarding his disability discrimination claim, the Claimant is alleging he was dismissed for a health related reason. Again, the ultimate test under s15 and or s19 will be whether the decision to dismiss him was justified in relation to him personally. It can be fair and non-discriminatory in UK law to dismiss a person for a health related reason. A disability discrimination, or an unfair dismissal, complaint in the UK does not involve a challenge to UK law. Claimants do not argue that the law is wrong to specific incapacity as a potentially fair reason for dismissal; or that it is always discriminatory to dismiss for a disability-related reason. The issue is the legality of the treatment of the individual at the relevant time.[83]On his pleading, the Claimant had had a health condition for 11 years before he was dismissed.[84]I had already decided that the Claimant’s employment, more broadly, was an act of sovereign authority. However, I was not satisfied that the nature of the Claimant’s indirect discrimination and harassment complaints were additional reasons for finding that state immunity applied to his claim.[85]If I was wrong in that, I considered that the Claimant’s direct discrimination complaints were not additionally barred as they did not relate to the application of a State law.[86]Also if I was wrong, the Claimant might apply to amend the formulation of the PCPs. As I have indicated, on his pleading, he was above retirement age when he was dismissed. On his pleading, he had had a health condition for many years before the decision to dismiss was made. Of course, any such amendment application would not necessarily succeed. Any decision would need to be made applying the appropriate legal principles to the relevant facts.[87]I also considered that it might be possible, in the indirect discrimination complaints, for the ET could accept that, as laws, PCPS had legitimate aims, but examine whether their application in the Claimant’s case was a proportionate means of achieving that legitimate aim.[88]All of this is theoretical, in any event, as I have decided, below, that the Claimant can pursue his personal injury claim, which is not barred by state immunity. Personal Injury Claim
Relevant Law
[89]By s5 SIA “A State is not immune as respects proceedings in respect of—(a) death or personal injury; or(b) damage to or loss of tangible property, caused by an act or omission in the United Kingdom.” 14 ph outcome jment and case mngmnt 1.5.14 version[90]An employee can rely upon the exclusion from state immunity under s5 SIA in relation to a personal injury claim for unlawful discrimination: Ogbonna v. Republic of Nigeria [2012] ICR 32. In that case, Underhill P held that claim for compensation for psychiatric illness caused by unlawful discrimination is a claim for “personal injury” within the meaning of s5 State Immunity Act 1978 and an employment tribunal accordingly has jurisdiction to entertain such a claim by an employee of a state even if he or she is a member of mission within the meaning of s16(1)(a) SIA. Underhill P held that, while personal injury was not a necessary or even typical part of a discrimination claim, when personal injury occurred in such a claim, the SIA did not bar a claim for damages for it:[91]Underhill P said the following in Ogbonna: “ [12] The first point, as helpfully elucidated by Mr Pipi in his skeleton argument and oral submissions, is that the effect of sections 4 and 16 taken together is that a state enjoys absolute immunity in respect of “proceedings relating to a contract of employment” — which includes a claim of infringement of statutory rights: see section 4 (6) — in the case of employees who are members of a mission, and that section 5 has no application in such a case. I cannot accept this submission. Sections 4 and 5 are separate and freestanding exceptions to the general rule of state immunity provided by section 1 : that is so even though on the facts of a particular case, and specifically in a case of a claim for personal injury by an employee, both exceptions might be engaged. Section 16 (1) (a) expressly qualifies that exception as regards section 4 but it has no impact on section 5.” “13 The second limb of the second ground in the notice of appeal is that the claimant’s claim for personal injury is “ancillary to” her claim of disability discrimination and can thus only be advanced if and to the extent that that claim is not caught by state immunity, which Mr Pipi submits it plainly is because she was a member of a mission and so fell within the terms of section 16(1)(a). This argument seems to be in substance the same as that which was considered and rejected by this tribunal in Caramba-Coker: see para 18 of the judgment, quoted at para 6(5) above. I should therefore reject the submission unless I am sure it is right. That is not the case.”[92]Article 12 of the 2004 UN Convention on Jurisdictional Immunities of States and Their Property (“UNCSI”) which provides: “Unless otherwise agreed between the States concerned, a state cannot invoke immunity from jurisdiction before a court of another State which is otherwise competent in a proceeding which relates to pecuniary compensation for death or injury to the person, or damage to or loss of tangible property, caused by an act or omission which is alleged to be attributable to the State, if the act or omission occurred in whole or in part in the territory of that other State and if the author of the act or omission was present in that territory at the time of the act or omission.”[93]The Law of State Immunity (Fox and Webb, OUP, Third edition) at p470 says: “The tortious conduct covered by s5 is confined to acts causing physical damage to the person or property; damage resulting from words, spoken or written, remains immune.” See Yessenin Volpin v Novosti Press Agency, Tass etc 443 ESupp 849 (SDNY 1978); 63 ILR 127; Krajina v Tass Agency [1949] 2 All ER 274; 16 ILR 129; 15 ph outcome jment and case mngmnt 1.5.14 version Grovit v De Nederlandsche Bank NV [2007] 1 All ER (Comm) 106. See also Schreiber v Germany 216 DLR (4th) 513.[94]The ILC Commentary on Article 12 says: “(1) This article covers an exception to the general rule of State immunity in the field of tort or civil liability resulting from an act or omission which has caused personal injury to a natural person or damage to or loss of tangible property.”[95]Paragraph 4 of the Commentary states: “… the physical injury to the person or the damage to tangible property … appears to be confined principally to insurable risks. The areas of damage envisaged in article 12 are mainly concerned with accidental death or physical injuries to persons or damage to tangible property involved in traffic accidents, such as moving vehicles, motorcycles, locomotives full speed boats. In other words, the article covers most areas of accidents involved in the transport of goods and passengers by rail, road, air or waterways. Essentially, the rule of non-immunity will preclude the possibility of the insurance company hiding behind the cloak of state immunity and evading its liability to the injured individuals. In addition, the scope of article 12 is wide enough to cover all also intentional physical harm such as assault and battery, malicious damage to property, arson or even homicide, including political assassination.”[96]The State Immunity Act 1978 is to be construed against the background of generally recognised principles of public international law, Alcom v Republic of Colombia [1984] A.C. 580, at [597].[97]It is settled law that “there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation”; R v Lyons [2002] UKHL 44, [2003] 1 AC 976, para. 27 (Lord Hoffmann). See also Assange v Sweden [2012] UKSC 22, [2012] 2 AC 471, paras 10 (Lord Phillips), 98 (Lord Brown); 112 (Lord Kerr); 122 (Lord Dyson)).[98]Nevertheless, in Federal Republic of Nigeria v Ogbonna [2012] ICR Underhill P (as he then was), considered Military Affairs Office of the Embassy of the State of Kuwait v Caramba-Coker EAT 1054/02 and said at [7]: 99. ‘It is perfectly clear from that reasoning taken as a whole that this Tribunal in Caramba-Coker decided as a matter of ratio(a) that any claim for compensation for personal injury fell within the terms of section 5 notwithstanding that it was consequent on a discrimination claim, and(b) that in this context a claim of mental ill- health caused by the discrimination complained of constituted a claim for “personal injury”. The decision would seem therefore on its face clearly to apply to the circumstances of the present case. The Judge was right to hold that she was bound by it. I am of course not so bound , and Mr Pipi submitted that the section 5 point was only fairly briefly dealt with in Keith J's Judgment and that it did not seem that it had been very fully argued. I accept that; but my starting-point must nevertheless be, on ordinary principles, that I should not depart from CarambaCoker unless I am satisfied that it was wrong.’[100]Underhill P did not consider that Caramba – Coker was wrongly decided. In his judgment, Underhill P reaffirmed the position that an employee of a mission could 16 ph outcome jment and case mngmnt 1.5.14 version pursue a personal injury claim against the mission, in circumstances in which that personal injury claim took the form of a discrimination claim, and that it did not matter whether the Claimant claimed in respect of physical or psychiatric injury, paragraphs [16] – [21] Ogbonna.[101]At [21] Underhill P said, “[21] In sum, I find nothing in the international law materials which supports Mr Pipi’s submission that there is a recognised meaning in international law to the phrase “personal injury” which is more limited than the natural meaning of those words in domestic law.” Discussion and Decision – No State Immunity in Personal Injury Claim[102]The Claimant has brought a claim for personal injury – namely, “depression arising from the Respondent discriminating against him” – paragraph [38] of his Particulars of Claim.[103]I consider that the Tribunal has jurisdiction to consider this claim because s5 SIA disapplies state immunity in respect of such a claim.[104]In Ogbonna, Ms Ogbonna also claimed that her dismissal was an act of discrimination and that her dismissal had caused injury, including injury to her mental health (depression), paragraph [2] of the judgment in Ogbonna.[105]I consider that I am bound by the decision of the EAT in Ogbonna and find that, by reason of s5 SIA, the Respondent has no immunity in respect of a claim for personal injury, including a claim for psychiatric injury, arising in the Claimant’s discrimination claim.[106]The Respondent contends that this interpretation s5 SIA gives 'personal injury' a meaning which does not reflect international agreements and rules of international law which the United Kingdom is bound to respect.[107]I disagree. In its argument, the Respondent relies on Article 12 of the 2004 United Nations Convention on Judicial Immunities of States and their Property. Underhill P considered these international provisions, at [16] – [21] of Ogbonna. Underhill P did not consider that these international instruments distinguished between physical injury and psychiatric injury.[108]Further, the Respondent argues that, if the Claimant’s claim is only based on s5 SIA with no employment contract underpinning it (which is not possible in this case), then the ET does not have the power to adjudicate upon a common law claim (such as negligence) for damages for personal injury in accordance with s3(3) Employment Tribunals Act 1996 which states: “This section does not apply to a claim for damages, or for a sum due, in respect of personal injuries”. The Respondent relies on specific exclusion for claims relating to personal injuries under art 3 of the ETs Extension of Jurisdiction (E&W) Order (SI 1994/1623) which provides: “Proceedings may be brought before an employment tribunal in respect of a claim of an employee for the recovery of damages or any other sum (other than a claim for damages, or for a sum due, in respect of personal injuries) …”. 17 ph outcome jment and case mngmnt 1.5.14 version[109]Again, I considered that the Respondent made materially the same arguments in Ogbonna - as set out in paragraph [12] & [13] of the Ogbonna judgment.. The Respondent in that case specifically argued that “that the effect of sections 4 and 16 taken together is that a state enjoys absolute immunity in respect of “proceedings relating to a contract of employment” — which includes a claim of infringement of statutory rights: see section 4 (6) — in the case of employees who are members of a mission, and that section 5 has no application in such a case.” [12] of that judgment. The Respondent in Ogbonna also argued that “claimant’s claim for personal injury is “ancillary to” her claim of disability discrimination and can thus only be advanced if and to the extent that that claim is not caught by state immunity.”[110]The EAT in Ogbonna rejected those arguments at [12] & [13].[111]The EAT said that only s4 was qualified by s16, and not s5.[112]I noted that S5 SIA is, indeed, framed in very wide terms and is not contingent on s4. It disapplies immunity “ as respects proceedings in respect of— … personal injury …caused by an act or omission in the United Kingdom.”[113]Therefore, while a claim for loss of earnings flowing from a discriminatory dismissal might be barred by s4(6) SIA, the Claimant’s claim for personal injury arising from an act or omission is not so barred, because of the expansive terms of s5. The act or omission does not need to be one which also arises under s4. The alleged relevant act or omission in this case is a statutory tort, over which the ET has jurisdiction.[114]I am bound by Ogbonna, in which Underhill P considered and rejected the distinction between physical and psychiatric injury under s5 SIA which the Respondent seeks to make. Underhill P also rejected the argument that a claim for personal injury arising from a breach of statutory rights, based on a contract which is barred by s4 and s16, could not be brought relying on s5 SIA.[115]I consider that Underhill P gave a considered and fully reasoned judgment on these issue in Ogbonna and that his conclusion is one which I should follow, for the reasons he gave.[116]Accordingly, the Claimant can bring his personal injury claim, relating to his depression, and it is not barred by state immunity.[117]I set dates for the Final Hearing and a provisional remedy hearing. These dates were convenient for the parties. The parties agreed that I should send out directions for preparation for the Final Hearing. The parties can agree variations to relevant dates between themselves as appropriate. ORDERS Made under the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 18 ph outcome jment and case mngmnt 1.5.14 version The Final Hearing
Relevant Law
[1]The Final Hearing is listed for 7 days on 20 – 24, 27 and 28 November 2023 in person, before a full Tribunal, to consider liability only. Remedy Hearing[2]A Remedy Hearing is provisionally listed for 7 and 8 March 2024, in person. Schedule of Loss[3]By 4pm on 9 February 2023 the Claimant shall send his schedule of loss to the Respondent, setting out the sums he claims and how they are calculated. Respondent’s Response[4]By 4pm on 2 March 2023 the Respondent shall send its substantive Response to the claim to the Tribunal, copied to the Claimant.
List of Issues
[5]By 4pm on 16 March 2023 the parties shall agree a List of Legal and Factual Issues in the claim and response and shall send this to the Tribunal. Disclosure[6]By 4pm on 6 April 2023 the parties shall exchange all documents in their possession and control relevant to all issues in the claim and response, by lists and copies of the same. The Claimant shall disclose his relevant medical/GP records to the Respondent by the same date. Instruction of Joint Experts[7]The parties shall jointly instruct a psychiatric expert, to produce an expert report on the symptoms, diagnosis, causation, treatment and prognosis of the Claimant’s psychiatric condition.[8]By 4pm on 13 April 2023 the Respondent shall supply to the Claimant details of 3 proposed expert(s), including names, relevant discipline and qualifications and estimated fees of each expert, and conformation that the expert can provide a report and answers within the time specified in these directions.[9]By 4pm on 13 April 2023 the Respondent shall supply to the Claimant a proposed letter of instruction to the expert . The letter shall include the purpose of the report, the identity of the parties, a copy of the pleadings and list of issues and the agreed and the date by which the report is required. The letter shall enclose the Claimant’s G.P. and other medical records.[10]By 4pm on 4 May 2023 the Claimant shall indicate to the Respondent in writing which of the proposed experts he agrees shall be instructed. 19 ph outcome jment and case mngmnt 1.5.14 version[11]By 4pm on 4 May 2023 the parties shall agree the contents of the letter of instruction.[12]By 4pm on 11 May 2023 the parties shall instruct the relevant expert to report.[13]The expert shall provide a report to the parties by 4pm on 13 July 2023.[14]The parties shall put any questions to the expert jointly by 4pm on 27 July 2023, or within 14 days of receipt of the expert report, whichever is earlier.[15]The expert shall provide answers to any such questions to the parties by 4pm on 10 August 2023.[16]The parties shall indicate any concessions arising out of the expert evidence to each other in writing by 4pm on 24 August 2023.[17]The expert shall not give evidence at the final hearing. Bundle[18]By 4pm on 7 September 2023 the Respondent shall send to the Claimant a draft bundle comprising all documents relevant to the claims and to the grounds of resistance.[19]By 4pm on 14 September 2023 the Claimant shall notify the Respondent of any additional documents which need to be included in the bundle on behalf of the Claimant.[20]By 4pm on 21 September 2023 the Respondent shall provide to the Claimant a clear, indexed, paginated copy of the bundle, assembled in chronological order and containing all the relevant documents which each party wishes to be included. The Respondent shall bring 5 copies to the Hearing (4 for the Tribunal and one for any witness). Witness Statements[21]By 4pm on 12 October 2023 the parties shall exchange written witness statements relevant to liability (including one from a party who intends to give evidence).[22]The witness statement should set out all of the evidence of the relevant facts which that witness intends to put before the Tribunal on the issues. If it is intended to refer to any document, the witness statement should refer to page/s in the agreed bundle. A failure to comply with this order may result in a witness not being permitted to give evidence because it has not been disclosed in a witness statement; or in an adjournment of the hearing and an appropriate order for costs caused by such adjournment.[23]Each party shall bring 5 copies of any such witness statement to the hearing. Cast List and Chronology 20 ph outcome jment and case mngmnt 1.5.14 version[24]By 4pm on 9 November 2023 the Respondent shall send to the Claimant a first draft of a Cast list and a Chronology. The parties shall attempt to agree a Cast list and a Chronology for use at the Final Hearing. Other matters Any person who without reasonable excuse fails to comply with an Order to which section 7(4) of the Employment Tribunals Act 1996 applies shall be liable on summary conviction to a fine of £1,000.00. Under rule 6, if this Order is not complied with, the Tribunal may take such action as it considers just which may include(a) waiving or varying the requirement;(b) striking out the claim or the response, in whole or in part, in accordance with rule 37;(c) barring or restricting a party’s participation in the proceedings; and/or(d) awarding costs in accordance with rule 74-84. You may apply under rule 29 for this Order to be varied, suspended or set aside. _________24 January 2023[25]The tribunal should consider whether to exercise its discretion to extend time separately in respect of each claim rather than doing so on a global basis: Morgan . Burden of Proof – s123 Equality Act 2010[26]S.136(2) provides that if there are facts from which the court or tribunal could decide, in the absence of any other explanation, that a person (A) contravened a provision of the EqA, the court must hold that the contravention occurred; and S.136(3) provides that S.136(2) does not apply if A shows that he or she did not contravene the relevant provision.[27]The EHRC Employment Code states that ‘a claimant alleging that they have experienced an unlawful act must prove facts from which an employment tribunal could decide or draw an inference that such an act has occurred’ – para 15.32. If such facts are proved, ‘to successfully defend a claim, the respondent will have to prove, on the balance of probabilities, that they did not act unlawfully’ – para 15.34.[28]The leading case on this point remains Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases 2005 ICR 931. This was further explored in Madarassy v Nomura International plc 2007 ICR 867, CA; and confirmed in Hewage v Grampian Health Board 2012 ICR 1054, SC.[29]In the case of Igen, the Court of Appeal established that the correct approach for an employment tribunal to take to the burden of proof entails a two-stage analysis. At the first stage the claimant has to prove facts from which the tribunal could infer that discrimination has taken place (on the balance of probabilities). If so proven, the second stage is engaged, whereby the burden then ‘shifts’ to the respondent to prove on the balance of probabilities, that the treatment in question was ‘in no sense whatsoever’ on the protected ground.[30]The Court of Appeal in Barton v Investec Henderson Crosthwaite Securities Ltd 2003 ICR 1205, EAT, gave guidelines as follows:(i) it is for the claimant to prove, on the balance of probabilities, facts from which the employment tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. If the claimant does not prove such facts, the claim will fail(ii) in deciding whether there are such facts it is important to bear in mind that it is unusual to find direct evidence of discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In many cases the discrimination will not be intentional but merely based on the assumption that ‘he or she would not have fitted in’(iii) The outcome at this stage will usually depend on what inferences it is proper to draw from the primary facts found by the tribunal(iv) The tribunal does not have to reach a definitive determination that such facts would lead it to conclude that there was discrimination — it merely has to decide what inferences could be draw(v) in considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts(vi) these inferences could include any that it is just and equitable to draw from an evasive or equivocal reply to a request for information(vii) inferences may also be drawn from any failure to comply with a relevant Code of Practice(viii) when there are facts from which inferences could be drawn that the respondent has treated the claimant less favourably on a protected ground, the burden of proof moves to the respondent(ix) it is then for the respondent to prove that it did not commit or, as the case may be, is not to be treated as having committed that act(x) to discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that its treatment of the claimant was in no sense whatsoever on the protected ground(xi) not only must the respondent provide an explanation for the facts proved by the claimant, from which the inferences could be drawn, but that explanation must be adequate to prove, on the balance of probabilities, that the protected characteristic was no part of the reason for the treatment(xii) since the respondent would generally be in possession of the facts necessary to provide an explanation, the tribunal would normally expect cogent evidence to discharge that burden — in particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or any Code of Practice. Direct discrimination: Equality Act 2010 s13[31]13 EqA “(1)A person(a) (A) discriminates against another(b) (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” S13(2) EqA states[33]For A to discriminate directly against B, it must treat B less favourably than it treats, or would treat, another person. The Tribunal must compare like with like (except for the existence of the protected characteristic) and so “there must be no material difference between the circumstances” of the claimant and any comparator. (section 23(1), EqA 2010).[34]The claimant has relied upon a hypothetical comparator. We have born in mind the guidance set out by HHJ Mummery in In Stockton on Tees Borough Council v Aylott 2010 ICR 1278, CA, According to Lord Justice Mummery: ‘In this case the issue of less favourable treatment of the claimant, as compared with the treatment of the hypothetical comparator, adds little to the process of determining the direct discrimination issue. I am not saying that a hypothetical comparator can be dispensed with altogether in a case such as this: it is part of the process of identifying the ground of the treatment and it is good practice to cross check by constructing a hypothetical comparator. But there are dangers in attaching too much importance to the construct and to less favourable treatment as a separate issue, if the tribunal is satisfied by all the evidence that the treatment (in this case the dismissal) was on a prohibited ground.’ Thus, it seems that, although considering the treatment of a comparator will often be the most straightforward way of determining whether direct disability discrimination has occurred, the issue may sometimes take a back seat to a common-sense appreciation of the facts.[35]We have therefore considered what is referred to as the ‘because of’ or ‘reason why’ test to the claimant’s assertions. We have considered, the subjective motivations — whether conscious or subconscious — of the respondents in order to determine whether the less favourable treatment was in any way influenced by the protected characteristic relied on. As set out in Nagarajan v London Regional Transport 1999 ICR 877, HL we have considered the relevant mental processes of the respondents and the context in which they made their decisions. As Lord Nicholls put it in ‘Save in obvious cases, answering the crucial question will call for some consideration of the mental processes of the alleged discriminator. Treatment, favourable or unfavourable, is a consequence which follows from a decision. Direct evidence of a decision to discriminate on [protected] grounds will seldom be forthcoming. Usually the grounds of the decision will have to be deduced, or inferred, from the surrounding circumstances.’[36]We have reminded ourselves that it does not matter if the motive is benign or malign. This is set out in the EHRC Employment Code (see para 3.14). In other words, it will be no defence for an employer faced with a claim under S.13(1) to show that it had a ‘good reason’ for discriminating.[37]We have also reminded ourselves that the protected characteristic need not be the main reason for the treatment provided it is the ‘effective cause’. (O’Neill v Governors of St Thomas More Roman Catholic Voluntarily Aided Upper School and anor 1997 ICR 33, EAT). Discrimination arising out of disability (s15 Equality Act 2010)[38]Section 15 EQA 2010 provides as follows:(1) A person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.”[39]We have had regard to the advice set out in Pnaiser as follows:[40]In Pnaiser v NHS England [2016] IRLR 170 the EAT gave the following guidance:(a) A tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on by B. No question of comparison arises.(b) The tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The “something” that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it.(c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant: see Nagarajan v London Regional Transport [1999] IRLR 572. A discriminatory motive is emphatically not (and never has been) a core consideration before any prima facie case of discrimination arises, contrary to Miss Jeram's submission (for example at paragraph 17 of her skeleton).(d) The tribunal must determine whether the reason/cause (or, if more than one), a reason or cause, is 'something arising in consequence of B's disability'. That expression 'arising in consequence of' could describe a range of causal links. Having regard to the legislative history of s.15 of the Act (described comprehensively by Elisabeth Laing J in Hall), the statutory purpose which appears from the wording of s.15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it will be a question of fact assessed robustly in each case whether something can properly be said to arise in consequence of disability.(e) For example, in Land Registry v Houghton UKEAT/0149/14, [2015] All ER (D) 284 (Feb) a bonus payment was refused by A because B had a warning. The warning was given for absence by a different manager. The absence arose from disability. The tribunal and HHJ Clark in the EAT had no difficulty in concluding that the statutory test was met. However, the more links in the chain there are between the disability and the reason for the impugned treatment, the harder it is likely to be to establish the requisite connection as a matter of fact.(f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator.(g) Miss Jeram argued that “a subjective approach infects the whole of section 15” by virtue of the requirement of knowledge in s.15(2) so that there must be, as she put it, “discriminatory motivation” and the alleged discriminator must know that the “something” that causes the treatment arises in consequence of disability. She relied on paragraphs 26–34 of Weerasinghe as supporting this approach, but in my judgment those paragraphs read properly do not support her submission, and indeed paragraph 34 highlights the difference between the two stages – the “because of” stage involving A's explanation for the treatment (and conscious or unconscious reasons for it) and the “something arising in consequence” stage involving consideration of whether (as a matter of fact rather than belief) the “something” was a consequence of the disability.(h) Moreover, the statutory language of s.15(2) makes clear (as Miss Jeram accepts) that the knowledge required is of the disability only, and does not extend to a requirement of knowledge that the “something” leading to the unfavourable treatment is a consequence of the disability. Had this been required the statute would have said so. Moreover, the effect of s.15 would be substantially restricted on Miss Jeram's construction, and there would be little or no difference between a direct disability discrimination claim under s.13 and a discrimination arising from disability claim under s.15. Harassment: Equality Act 2010 s26[41](1)A person(a) (A) harasses another(b) (B) if— (a)A engages in unwanted conduct related to a relevant protected characteristic, and (b)the conduct has the purpose or effect of— (i)violating B's dignity, or (ii)creating an intimidating, hostile, degrading, humiliating or offensive environment for B. ….. (4)In deciding whether conduct has the effect referred to in subsection (1)(b), each of the following must be taken into account— (a)the perception of B; (b)the other circumstances of the case; (c)whether it is reasonable for the conduct to have that effect. (5)The relevant protected characteristics are disability;[42]The EHRC code, which we look to for guidance, sets out what is meant by ‘related to’ in paragraphs 7.9-7.11. It states that related to has a broad meaning and that the conduct under consideration need not be because of the protected characteristic.[43]The Claimant must establish first that the conduct is unwanted and then whether, taking into account all of the circumstances of the case it is reasonable for the conduct to have the stated effect. This is an objective test with a subjective factor of hearing in mind the perception of the claimant.[44]The gravity of the conduct is a key part of the objective assessment. Some complaints will fall short of the standard required. Elias LJ in Land Registry v Grant [2011] ICR 1390 CA (para 47): … even if in fact the [act complained of] was unwanted, and the Claimant was upset by it, the effect cannot amount to a violation of dignity, nor can it properly be described as creating an intimidating, hostile, degrading, humiliating or offensive environment. Tribunals must not cheapen the significance of these words. They are an important control to prevent trivial acts causing minor upsets being caught by the concept of harassment.[45]S19 Equality Act 2010 Indirect discrimination(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's.(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B's if— (a) A applies, or would apply, it to persons with whom B does not share the characteristic, (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it, (c) it puts, or would put, B at that disadvantage, and (d) A cannot show it to be a proportionate means of achieving a legitimate aim.[46]A Claimant must establish that the PCP has placed those sharing his or her characteristic at a ‘particular’ disadvantage. Therefore a Tribunal must concentrate particularly on people who share the protected characteristic in question and consider whether they are at a disadvantage because of the PCP — see CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia 2015 IRLR 746, ECJ. The Facts[47]We have had regard to all the documents we were taken to within the bundle and both witness statements. If we do not reference evidence that was provided to us in our judgment that does not mean we have not considered simply that it was not relevant to our conclusions.[48]The KHO forms part of the Kuwaiti diplomatic mission in London. The leaders of that department are diplomats and therefore covered by diplomatic immunity and did not give evidence to the Tribunal as they do not recognise its authority. We were told that no disrespect was intended which we accept, nevertheless, that does not detract from the fact that as a result of them not giving evidence, we did not hear from the decision makers and therefore did not have evidence from the respondent regarding many of the issues we had to decide.[49]Dr El Sankary was sent to give evidence though it is not entirely clear why as she was not one of the decision makers regarding the termination of the Claimant’s employment nor how he was managed in the lead up to his dismissal despite being, ostensibly, his line manager. Dr El Sankary did answer questions, but she also made it clear that she resented being asked questions where decisions had been made by others and frequently could not answer them or chose not to do so.[50]Many of the documents we had were translated from Arabic though we often had the Arabic originals in the bundle too. We had a certificate of translation in the bundle. The Claimant did not challenge the translation of any of the documents so we assume that we were reading an accurate translation of the documents. The Claimant’s role[51]The Claimant was employed by the Kuwait Health Office from 2009. He was originally employed as an in house doctor but from 2018 he became a medical auditor. The auditors’ role primarily involves checking and approving medical expenses incurred by Kuwaiti nationals in the UK or coming to the UK for treatment.[52]We were informed that although most of the medical documentation and reports are held digitally in their system, the invoices remain as hard copies and are passed from one department to another before being physically posted in a diplomatic pouch back to Kuwait. Dr El Sankary stated that most of the information on the face of an invoice was uploaded onto the system by another department before being passed to the medical auditing team. The medical auditors would then check the amounts being invoiced against the amount that had been pre-approved and ensure that the treatment being charged for was relevant to the conditions being treated. That entailed detailed consideration of previous correspondence and the medical notes and reports for the patients. Any errors or amounts that needed checking would be resolved by the medical auditors before it was passed to the accounts team for payment.[53]The Claimant asserted that the invoices could easily have been scanned. Dr El Sankary said that the administration had said that this was not possible and it was asserted that this was because they contained confidential information regarding the Respondent and its citizens and could not be compromised by either sending the hard copy invoices to someone’s home address or by scanning the invoice onto the system.[54]We find that we were given no evidence to suggest that anything on the physical invoice was more confidential than the medical and treatment information digitally stored on the system already. There was no confidentiality reason for that document not to be scanned. We accept that protocol meant that it had to be physically printed and that it generally travelled through departments in physical format but that was as a matter of custom and practice as opposed to any proven necessity particularly at a time of crisis such as the Covid 19 pandemic. The Claimant’s health[55]The Claimant has prostate cancer and that was not in dispute. This is the condition he relies upon as being a disability. He also stated that he had hypertension and osteoporosis, The hypertension was not disputed by the Respondent as an existing condition – its status as a disability was not a matter before us. The Claimant’s osteoporosis was not evidenced before us and not referenced in the one medical letter we had that is relevant to these proceedings. Nevertheless we had no reason to doubt the Claimant’s veracity regarding the fact that he has this condition.[56]On 13 March 2020 the Claimant messaged Mr Naif whose exact title we were not informed of but we understand carried out the HR functions for KHO and who we understand has diplomatic immunity. The message informed the Respondent that the Claimant would not be attending work due to flu like symptoms. This was just before the country went into national lockdown on 23 March 2020 and from its own knowledge the Tribunal is aware that at this time those suffering from such symptoms were advised to stay at home.[57]It is not clear when the Claimant recovered from the flu but he was booked on annual leave from 24 March and due to return on 27 April 2020. Mr Sethi appeared to suggest during his cross examination that the Claimant had not recovered from those flu like symptoms by the time the Claimant’s attendance became an issue in May 2020. We do not agree. There is no evidence to suggest that the Claimant was unwell with flu at that time.[58]By Whatsapp message dated 30 March 2020 the Claimant informed Mr Naif that he was 75, and has prostate cancer along with diabetes and hypertension. He says that he has to shield in accordance with the government guidance but his leave will end on 24 April.[59]There was no substantive written response to that message from Mr Naif. The next correspondence is dated 23 April when the Claimant informed Mr Naif that he would return to the office on 27 April 2020. We had no explanation as to why he sent this and the Claimant has not told us why he sent it nor why he did not in fact go into work on 27 April as indicated.[60]However it is not in dispute that he did not attend work on 27 April and we had no evidence to suggest how he informed Mr Naif or anyone else at the Respondent that he was not going to attend work as previously indicated. The next message we had was a request from Mr Naif on 30 April asking the Claimant to return to work on 4 May 2020. We presume from that message, that the Claimant and Mr Naif must have spoken in the intervening week as otherwise we presume that a message would have been sent on 27 or 28 April by Mr Naif asking where he was and/or ordering him to attend work. We had no evidence as to what was discussed regarding that week.[61]The Claimant did not return to work on 4 May 2020. Again, there was no message explaining that nor did we hear any evidence from the Claimant as to why he did not attend work on that day or inform the Respondent. He says that he will have called Dr Naif but he may not have managed to speak to him. Either way the explanation provided to the Tribunal was sparse. The Claimant simply relies upon his message dated 30 March and his GP letter dated 29 April (which we discuss below) as being the reason he did not attend work.[62]On 5 May Mr Naif messaged the claimant to say that he had not received any medical report indicating why the claimant was not able to attend work and indicating that he considered the absence unauthorised and would deduct wages accordingly. The fact that he considered the unauthorised absence to only start on 4 May suggests again that the previous week’s absence had been discussed between them and was not considered ‘unauthorised’.[63]From the sequence of messages on 5 May that ensued we consider that the Claimant and Mr Naif must have spoken on the phone and the Claimant must have sent Mr Naif the GP letter dated 29 April 2020 (p185) to Mr Naif as Mr Naif then comments on it as follows: “To Dr Samir This report proves you are ill and that you worked past your pension age. Evidently, you stand in need of your pension retirement.”[64]The Claimant responds and says that he is well enough to work, he just cannot leave his home due to the risk to him and subsequently to his wife and daughter who had health conditions. The Claimant also states that he has only had 3 days of sickness absence before despite his cancer and his age.[65]Although we had no evidence that conversations took place between Mr Naif and the Claimant, we are sure that they did. This is evidenced by messages referring to phone calls and also because information that must have been conveyed between them is referenced but not explained thus meaning that a conversation probably took place.[66]Absent evidence from Mr Naif or any helpful explanatory evidence from the Claimant as to the sequence of events between 27 April and 20 May, we have pieced together the following chronology which on balance of probabilities is what we find occurred:(i)27 April 2020 – Claimant and Mr Naif speak and they agree that the Claimant will not attend work that week though we believe it is unlikely that it was agreed that this would be paid. We consider that the Claimant will have told Mr Naif that he does not consider it possible for him to come to the office because of his health and that of his family. We consider that Mr Naif will have asked for a medical letter demonstrating that the Claimant was too unwell to attend work(ii) 4 May – Claimant did not attend work(iii) 5 May – Mr Naif messaged the Claimant saying that he had not received the medical evidence regarding the Claimant’s health(iv) 5 May – the Claimant and Mr Naif speak(v) 5 May – the Claimant sends Mr Naif the GP letter dated 29 April(vi) 5 May – Mr Naif indicates that the letter says the Claimant is too unwell and past the pension age and should retire(vii) 5 May – the Claimant responds explaining that he is not too unwell but due to the pandemic he needs to work from home and that he did not know about the retirement age(viii) Another conversation or conversations took place from 5 May to 18 May. We do not know what was discussed but we consider it more likely than not that there must have been some discussion regarding what work the Claimant could do from home and Mr Naif or others within the Respondent dismissed those suggestions. We reach this conclusion based on Dr El Sankary’s evidence that there were rumours that the Claimant had asked whether he could answer the calls on the hotline from home.[67]On 18 May after, 15 days had elapsed between 4 May and 18 May Mr Naif, in effect, gave the Claimant one more chance to demonstrate that he was too unwell to work. In that message he said as follows: “Dr Samir Please provide us promptly with a medical justification letter for the period 4th May 2020 to this day 18th May 2020. This period shall be deducted from your salary, while also the regulation on the 15 days of unauthorised absence shall apply to you. Please contact us promptly.”[68]The Claimant indicated to us and in the messages that we have seen that he was not too unwell and presumably stuck to that line of argument during their phone conversations. He was adamant that he could work provided he could work from home. It is clear that Mr Naif does not accept the GP letter dated 29 April as sufficient reason not to attend the offices and tells the Claimant that at some point during this period. His message on 18 May is therefore a last chance to ‘correct’ that situation by producing medical evidence that he was too unwell. The Claimant does not do so believing that the shielding letter from his GP is sufficient. The respondent did not agree.[69]We heard evidence Dr El Sankary that the auditors department had several people with chronic health conditions some of whom were also elderly and that allowing the Claimant to work from home and shield would probably have led to the entire department shielding or wanting to work from home.[70]On 20 May the Claimant was sent a termination letter (p200) which says as follows: “Since you reached the retirement age some time ago, and in view of your health condition, I hope that Allah the Great and the Strong will grant you good health in the period of your upcoming retirement. I shall instruct the financial department take the necessary steps to terminate your employment with effect from the end of Sunday 03/05/2020.”[71]Dr El Sankary accepted in cross examination that there was no reference in this letter to the claimant taking 15 days of unauthorised absence. Further she accepted that it gave reasons related to retirement and the claimant’s health and that this was probably the reason behind the dismissal because that is what the letter says. Documents[72]The Respondent asserted that the Claimant’s employment was subject to two contractual documents;(i) The Regulations on Local Employees and Workers 1999 (the ‘Regulations’); and(ii) His written contract of employment.[73]The Claimant said that he had never seen the Regulations before and was not aware of them. We think that is unlikely given that they set out, in considerable detail, his terms and conditions and the rules surrounding entitlement to them whereas his contract is short and contains little practical information concerning, for example, holiday pay or sickness absence entitlement. Further, his contract of employment makes specific reference to the Regulations at Clause 5.[74]The relevant Regulation clauses were: Article 33(2) which states as follows: The term of service of a local employee shall be terminated for one of the following reasons: (II) Absence without permission or following a permitted leave for 15 days consecutively or for 30 days intermittently within twelve months. In the latter case, such absence constitutes an act of resignation. In response to this latter case, the mission may either accept such resignation, thereby applying the resignation-related provisions herein, or accepts that employee’s return to work, because of the excuses he or she provides. The absent employee shall always be subject to deduction from his or her salary against the periods of absenteeism and shall be deprived of all the privileges. related to such periods, including the end—of service benefits, besides health insurance premiums regarding such periods, in cases to which the insurance related provisions herein apply; (IV) Inappropriate health; (VI) Termination of the employment contract without giving reasons, on condition the 'Ministry's approval is sought first, with the employee being given a warning period not less than two months before the" date of termination unless the employment contract provides for another period; (VII) Reaching the age of sixty-five, unless the Ministry deems it necessary to keep him or her in Work for reasons of public. interest. The service of any employee shall always expire at seventy.[75]Clause 4 of the Contract of employment indicates that it is permitted for either party to terminate the contract without reason provided they give 1 month’s notice. Covid 19 protections[76]We accept Dr El Sankary’s evidence that the workplace put in place various social distancing measures and a rota system for the department which said that the medical auditors would take it in turns to come in one or two days per week so that only one of them was in the office at any time. The Claimant appeared to question during his evidence whether they were in place and Dr El Sankary was challenged during cross examination on whether other staff or patients would have come in to the office. However we accept Dr Sankary’s evidence that these measures were put in place given that the majority of the staff were doctors and no doubt understood the risks they were being subjected to at that time and the need to minimise them if possible.[77]Dr El Sankary’s evidence was that they were all scared, that she too had underlying health problems that mean that she was vulnerable and that all of them would have wanted to work from home but because the administration had said that they had to physically attend work so she did; not because she did not view it as risky, but because she had to choose between taking that risk and getting paid. She chose the latter. Conclusions Indirect discrimination on grounds of age and disability[78]The Claimant relies upon the policy that there was a compulsory retirement age in place at the Respondent of 70. The Regulations state that normal retirement age is 65 and compulsory retirement age is 70. On the face of it it therefore appears that such a policy existed at the Respondent. However, we had no evidence to suggest that it was applied more generally. The Claimant gave us evidence that he knew of at least one other person who worked beyond the age of 70. He also stated that he had not known about the policy and it appears that the Respondent did not keep track of the Claimant’s age as it appears to have come as a surprise that he was over 70 given Mr Naif’s messages following him reading the GP letter.[79]However, if we are wrong and such a policy was in place by virtue of the written documents we have seen, we do not find that this policy or practice was applied to the Claimant as he did not get dismissed until he was 74. He was not told he should retire at 65 or at 70 and therefore he cannot rely upon that PCP as placing him at disadvantage.[80]The second PCP relied upon is that the Respondent requested all staff, including the Claimant, to return to work or have their pay deducted. The Respondent did not dispute the existence of this policy. They said however that it was a proportionate means of achieving a legitimate aim because the medical auditors were carrying out mission critical work and the invoices could only be worked on in hard copy and there was no alternative work that the Claimant could carry out from home. Significant Covid safety measures were put in place in the work place such that the individuals would be on their own in the office, the Claimant could drive to work and a rota was in place only requiring staff to come in one or two days per week[81]The appropriate pool of comparison is the pool of employees who were required to come into work by the Respondent (London Underground Ltd v Edwards (No. 2) [1998] IRLR 364 and, in respect of the age claim, were younger than 70 and in respect of the disability claim, did not have prostate cancer.[82]Taking the age element of the claim first. We accept that this PCP put anyone over the age of 70 at a disadvantage when compared to someone under 70 because everyone over 70 was advised by the UK government that they were more at risk and told to stay at home if at all possible. People over 70 were established to generally be at a higher risk of severe illness and death than younger people. Therefore more people over 70 would not be able to comply with the PCP imposed by the Respondent to physically come into the office. The Claimant fell into this category and was personally disadvantaged by the policy as he was told that he had to come in or he would not be paid – and he was not paid during May 2020 when he did not come in.[83]Taking the disability aspect of the claim. The pool for comparison is all people who do not have prostate cancer which will include some people with underlying health conditions who also need to shield but others who do not. The group of people who all have prostate cancer are at a greater disadvantage because they must all shield. We accept that the Claimant was placed at this particular disadvantage. Mr Sethi suggested that the Claimant had been non symptomatic with his prostate cancer for many years, something which the Claimant did not appear to dispute nor has he evidenced to us. Nevertheless, his diagnosis was not in doubt and his GP’s letter dated 29 April clearly advises that he ought to shield at least in part because of that condition. We therefore consider that the PCP of requiring people to come into the office placed people with prostate cancer at a disadvantage and the claimant was placed at that disadvantage.[84]We do not accept that the Respondent has demonstrated to us that this was a proportionate means of achieving a legitimate aim. There was alternative work for the Claimant to carry out that could be done from home such as manning the hotline – particularly if they were only expected to work 1 or 2 days per week. Other staff were doing some work from home even if it was not work on the invoices. More importantly we do not agree that it was proportionate to maintain that the only way of working with the invoices was to keep them as hard copy throughout their processing. None of the evidence we heard from Dr El Sankary or the documents provided demonstrated that the information on the invoices was any more confidential than the clearly confidential medical notes and reports that were kept on the system. To maintain that this document was somehow more confidential than the medical information, particularly when the majority of the information on the invoice was also uploaded to the system but in a different format, means that we do not think that it was proportionate to refuse to scan the invoices thus allowing them to be worked on remotely during the Covid pandemic. We have not had the evidence to suggest that it was proportionate to require the Claimant to attend work when alternative arrangements could have been made. S15 Equality Act 2010 - Discrimination arising from disability[85]The Claimant’s claim in respect of this was not clearly expressed by Mr Adams in submissions but it appears to the Tribunal that the Claimant was saying that the ‘something arising’ from his disability was the fact that he was told that he needed to shield during the relevant period due to the Covid 19 pandemic.[86]We accept that this was the case. The Claimant’s GP letter clearly states that he ought to shield and the government’s recommendations at the time were that those with health conditions ought to shield.[87]We do not accept the Respondent’s suggestions put in submissions that it was the Claimant’s flu and his wife and child’s conditions alone that necessitated his absence. Clearly his own health was a key part of his decision and to this end he produced the GP letter dated 29 April and he explained why his health precluded him from attending work in messages and phone calls to the Respondent at that time. Most of this correspondence was focused on his own health not that of his wife and child. Further we had no evidence that his flu continued and was the cause of his absence at this point.[88]Shielding was also in accordance with the UK government guidelines at the relevant time which stated that those over 70 and with an underlying health condition.[89]The dismissal occurred for a reason arising out of his need to shield because he would not return to work in the office to work.[90]We accept that processing invoices and continuing the work of a medical auditor could amount to legitimate aims. They said the work was mission critical due to the fact that the department was assisting Kuwaiti nationals stranded in the UK during the pandemic many of whom had critical health needs. De El Sankary gave evidence to that effect that was not challenged by the Claimant’s representative.[91]However we do not accept that dismissing the Claimant after 15 days of not attending the office was a proportionate means of achieving a legitimate aim. They failed to consider and or explore in any way the following possible measures:(i) Scanning the invoices which did not hold any more confidential information than that which was already on the system(ii) Posting the invoices to the Claimant’s home address(iii) Allowing the Claimant to undertake alternative work such as the helpline[92]It is clear that some members of staff worked from home. It is clear that there was work that could be done from home even within their department and it is clear that the invoices did not need to remain hard copies in these situations. This was an exceptional moment and the business as usual approach by the Respondent resulted in no account being taken of the Claimant’s health requirements whatsoever.[93]In addition, we have not been given any evidence as to why 15 days’ absence, whilst possibly provided for as a cut off point for dismissal in the Regulations, was a proportionate time after which they could dismiss someone for absence. We have for example received no evidence that the Respondents could not cope with one individual not being present for more than 15 days or that it affected the delivery of their stated aim to such an extent that it was not proportionate to wait longer than 15 days.[94]We also observe that we have no evidence from Mr Naif who made the decision to dismiss the Claimant. The Claimant has established facts from which a Tribunal could conclude in the absence of any other explanation, that the Respondent contravened the provisions protecting the Claimant in the Equality Act. In respect of this claim, he was dismissed and the letter dismissing him is inherently related to his age and disability as it comments on both and says that they are the reasons for his dismissal. The Respondent has not provided any evidence concerning the Claimant’s dismissal from those who made the decision. In our view the Respondent has not provided a non discriminatory reason as they have provided no evidence of their reasoning beyond what is on paper – which clearly states that the reason for dismissal wa the Claimant’s age and health. They have not therefore put forward a valid defence under s136(3). Direct discrimination Payments[95]The Claimant claims is that he was not paid the following:(i) 2 months’ holiday pay(ii) 2 months’ notice pay(iii) Pay during May 2020[96]We do not consider that the Claimant has established before us that he was entitled to the above payments. Mr Adams did not address us on which provision within the Claimant’s contract allowed him to have 2 months’ notice pay or 2 months’ holiday. We have found after the proceedings concluded that there are some provisions for holiday pay and notice pay but none that tally with the figure of 2 months.[97]The Claimant adduced no evidence to suggest that he was not paid for these periods when others, dismissed in similar circumstances, would have been paid those amounts.[98]With regard to the payments in May. There are provisions within the Regulations that suggest that 1 week’s sick pay might be paid but not that paid leave would be given when, as the Claimant has asserted, he was well enough to work. It is clear that the Claimant’s contract states that if he is absent from work, then he is not entitled to payment and that was a situation endorsed by the letter asking everyone to come back to work or face deductions from their pay.[99]Even if we are wrong and the Claimant could establish a contractual entitlement to the being paid when he was absent in May, we find that any decision not to pay the Claimant occurred because he was absent and then dismissed. The motivation or reason why was his absence from the workplace, not the Claimant’s age or disability. Promotion[100]The Claimant has provided not evidence that Dr Shawky or Dr El Sankary were promoted ahead of him due to his age or disability. His witness statement does not cover these specific incidents at all. We therefore accept Dr El Sankary’s evidence that the Claimant did not want the additional responsibility given that there was no pay rise. He raised no concerns or complaints about the matter at the time and, bar these proceedings, has given us no evidence whatsoever that that indicates that he either wanted to be promoted to head of the department nor that he was upset when he was not promoted.[101]In any event these claims are considerably out of time. They are separate, one off incidents and not part of a continuing act. No submissions or evidence was provided to us addressing why a claim regarding these incidents had not been submitted earlier nor why it might be just and equitable to extend time. The Claimant has raised no grievances or concerns regarding the situation in the interim. Dismissal[102]The reason given for the Claimant’s dismissal, in his dismissal letter, was that he was past retirement age and his health. The existence of this letter and the messages from Mr Naif saying the same thing, shift the burden of proof to the respondent to give a non discriminatory reason for the dismissal.[103]The respondent has not provided us with any evidence that demonstrates that the reasons in the letter were not the real reasons for the Claimant’s dismissal. stated that there is anything to suggest that on the face of it the dismissal letter was not an accurate reflection of the reasons that they dismissed him for. Dr El Sankary accepted in evidence that these were the reasons given and they were therefore likely to be the reasons for the dismissal.[104]We reiterate our analysis above regarding the burden of proof in s 136. have no evidence from Mr Naif who made the decision to dismiss the Claimant. The Claimant has established facts from which a Tribunal could conclude in the absence of any other explanation, that the Respondent contravened the provisions protecting the Claimant in the Equality Act. In respect of this claim, he was dismissed and the letter dismissing expressly references his age and disability as it comments on both and says that they are the reasons for his dismissal. The Respondent has not provided any evidence concerning the Claimant’s dismissal from those who made the decision. In our view the Respondent has not provided a non discriminatory reason as they have provided no evidence of their reasoning beyond what is on paper – which clearly states that the reason for dismissal wa sthe Claimant’s age and health. They have not therefore put forward a valid defence under s136(3).[105]However, mindful of the observations in Hewage, we have considered the reason why given the submissions and discussions regarding Regulation 33(2) and the 15 days absence. We do not accept that the 15 days unauthorised absence was the only reason for his dismissal even if it was part of the mechanism that enabled the dismissal. It is clear even on the Respondent’s evidence that the Claimant’s age and disability played a part in the decision. In Gould v St John’s Downshire Hill 2021 ICR 1, EAT, Mr Justice Linden, states ‘The question whether an alleged discriminator acted “because of” a protected characteristic is a question as to their reasons for acting as they did. It has therefore been coined the “reason why” question and the test is subjective… For the tort of direct discrimination to have been committed, it is sufficient that the protected characteristic had a “significant influence” on the decision to act in the manner complained of. It need not be the sole ground for the decision… [and] the influence of the protected characteristic may be conscious or subconscious.’[106]We do not accept the explanation of 15 days absence was the sole reason for the Claimant’s dismissal. It is abundantly clear that the Claimant’s age and his disability significantly influenced the decision to dismiss the Claimant as they are directly referenced in the dismissal letter and Mr Naif had already suggested in earlier messages that the Claimant ought to retire because of his health and age. They are both significant reasons why the Claimant was dismissed; the 15 days’ absence was just the trigger for enacting the dismissal for those reasons.[107]S.13(2) EqA provides: ‘If the protected characteristic is age, A does not discriminate against B if A can show A’s treatment of B to be a proportionate means of achieving a legitimate aim. The Respondent made no ‘in the alternative’ argument before us or in the ET3 that the dismissal for age was a proportionate means of achieving a legitimate aim under the direct discrimination legislation. They simply asserted that it was not the reason for the dismissal. We therefore consider that they have not intended to make any such representations.[108]We therefore uphold the Claimant’s claim that his dismissal was directly discriminatory on grounds of age and disability.[109]The final claim for direct discrimination was regarding the requirement for the Claimant to return to work or not be paid. We do not uphold this claim. This requirement was sent to everyone within the medical auditing team. We accept Dr El Sankary’s evidence in that regard. The reason why that letter or message was sent was that the Respondent wanted everyone to return to the work place. It was not sent because of the Claimant’s age or disability. We had no evidence to suggest that this was the case and we do not consider that the Claimant has shifted the burden of proof to demonstrate that the reason why was his health or age. Associative discrimination[110]This claim does not work and is misconceived. The Claimant has not established that he was dismissed because his wife and daughter had health conditions. Whilst their health may have played a part in his decision not to attend the offices; the reason the Respondent dismissed the Claimant was because he would not attend the offices due to his health and age. Harassment[111]The Claimant relies upon 2 emails dated 4 May and 18 May 2020. There was no message sent on 4 May. Mr Sethi said in submissions that there was no such message and therefore any claim must fail. Mr Adams did not address this point at all in his submissions. The Claimant’s evidence does not clarify which message he relies upon. Several were sent on 5 May and so we cannot simply assume that this was a typographical error particularly in circumstances when the Claimant was represented by Counsel and had ample opportunity to rectify the situation. We therefore consider that the claim regarding a 4 May message must fail.[112]Nevertheless, the message sent on 18 May must be read in context and that context includes all the messages that were sent on 5 May. The details of the messages are set out above.[113]The Claimant is being told both on 18 May and in the lead up to that message that if he does not attend work he will have his pay cut and he will be dismissed. This is in the context of Mr Naif understanding that the Claimant considered that to attend work would place his life at risk given the recommendations of his GP and the UK government. In that context, we consider that this message was unwanted. It is related to the Claimant’s health and age as Mr Naif is aware that the Claimant is shielding precisely because of his health and age and he makes reference to both medical reports and the pension age in the UK being 67.[114]We are conscious of the fact that the style and language of the messages exchanged between the Claimant and Mr Naif are culturally very different from those a Tribunal in this country would normally see. It has therefore been more difficult for us to glean from the words alone what the intended tone or perceived tone of those messages might be. The Claimant did not provide us with evidence as to how that message made him feel specifically nor how he interpreted what was said. His evidence about how he has been made to feel by the Respondent referred to the situation overall as opposed to the acts relied upon for the harassment claim.[115]Given that situation, and having been taken to the Regulations during the proceedings, we find that the intended tone of the 18 May message was factual as opposed to threatening. Mr Naif is setting out the facts of the Claimant’s situation and the factual repercussions in terms of pay should the Claimant remain away from the work place in these circumstances. We do not consider that his intention was to create an intimidating, hostile, degrading, humiliating or offensive environment for the Claimant though we have no doubt that he was trying to convey to the Claimant that he ought to come back to work.[116]On balance we find it reasonable that the Claimant perceived this message as creating an intimidating, hostile, degrading, humiliating or offensive environment in circumstances where he was being told that he had to choose between putting his health at potentially grave risk or losing his job. In May 2020 thousands of people globally were dying, the NHS was struggling to cope with the numbers who were seriously ill and there was no news of a vaccine at that time. Those that were becoming seriously ill or dying were, in the UK, predominantly those with underlying health conditions or those over 70. The Claimant had both. We therefore consider that in all the circumstances of the case it was reasonable for the Claimant to interpret such ultimatums as intimidating and hostile.[117]With regard to the Claimant’s claim that his dismissal was an act of harassment, we note that S.212(1) EqA provides that the concept of ‘detriment’ does not include conduct that amounts to harassment. Neither party addressed us on this point. Nevertheless by operation of s212(1) we do not uphold the Claimant’s claim that his dismissal was an act of harassment as we have already upheld that his dismissal was a detriment for the purposes of his direct discrimination claim. REMEDY JUDGMENT[1]The Respondent is ordered to pay the following amounts: Pain suffering and loss of amenity £42,000 Interest @ 8% 12,768 Past Losses £169,033.95 Interest @ 8% £25,694.18 Future losses £83,094.64 TOTAL Payable £332,590.76[2]Oral reasons were given for the above Judgment at the hearing. On conclusion of the hearing, the Respondent requested written reasons. The hearing[3]Unfortunately, due to circumstances beyond the panel’s control, Ms Plummer was unable to attend the hearing. The parties had agreed, in advance and in writing that the Tribunal could proceed with one member and the judge.[4]We were provided with a bundle numbering 325 pages and witness statements for the Claimant and Mr Campbell-Drummond, solicitor for the Respondent.[5]The last page of the bundle was a document, in English, which appeared to set out something called a bonus . During his witness evidence I allowed supplementary questions from Mr Adams about this document. The Claimant stated that this document was evidence that had he remained with the Respondent, he would have been entitled to a pay rise. When cross examined on this point, Mr Sethi said that the Respondent did not recognise this document. It became apparent that the Claimant said that he had translated the original document into English and that this was the translation. The original document however had not been produced or disclosed to the Respondent.[6]The Tribunal refused to allow the Claimant to produce the original document. Oral reasons were given at the time. In summary, the document was not going to be ready until the next day when the witness evidence had already been concluded. The parties had had ample time to prepare for this hearing, the Claimant’s representatives knew that producing the original document with an official translation was required as it had been required in the previous bundle, there was no explanation for why the original document had not been disclosed or included in this bundle and were it to be produced it placed the Respondent at a significant disadvantage because it was in Arabic so they could not, without their client present (which they were not) take instructions on its authenticity or its content or the validity of the translation which was now called into question given that whilst we have no doubt the Claimant is fluent in both languages, had been done by the Claimant not a qualified translator.[7]At the conclusion of submissions, Mr Sethi asked us to note that the Respondent reserved its position as to any award made by the Tribunal given an upcoming Court of Appeal referral on two other cases concerning whether the Respondent can be held liable for mental as well as physical injury under the State Immunity Act.[8]Whilst the premise for the calculations was decided by the Tribunal, the mathematical calculations were done with the agreement and involvement of the parties.
The Law
[9]A tribunal is able to award compensation for personal injury consisting of psychiatric illness where this has been caused by a discriminatory act (Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] IRLR 481). Such damages are recoverable for any harm caused by a discriminatory act and not simply harm which was reasonably foreseeable (Essa v Laing Ltd [2003] IRLR 346, [2003] ICR 1110, EAT).[10]When it comes to the assessment of damages in relation to a proven psychiatric injury, tribunals are ‘obliged to approach the assessment of damages for psychiatric injury on the same basis as a common law court in an ordinary action for personal injuries’ (HM Prison Service v Salmon [2001] IRLR 425).[11]We must first determine whether the loss is attributable to the unlawful discrimination, the starting point being a straightforward “but for” causation test, subject to any intervening event that wholly breaks the chain of causation. Provided we are satisfied that the loss is caused by the respondent, we must then assess the appropriate level of compensation.[12]When more than one event contributes to the injury suffered by a claimant then, save where the injury in question can be said to be 'indivisible,' the extent of the respondent's liability is limited to the contribution to the injury made by its discriminatory conduct (Thaine v London School of Economics [2010] ICR 1422 EAT, Olayemi v Athena Medical Centre [2016] ICR 1074, Case Numbers: 2208142/2017, 2205586/2018 and 2201492/2019 31 BAE Systems (Operations) Ltd v Konczak [2017] EWCA Civ 1188, Blundell v Governing Body of St Andrew's Catholic Primary School [2011] EWCA Civ 427).[13]Personal injury compensation potentially includes compensation for financial losses arising from the injury and for the injury itself.[14]When calculating compensation for financial loss it is helpful to consider the past and future losses separately. The application of this basic principle to past losses is relatively straightforward. Past losses are ascertainable with some accuracy. The only difficulty is deciding whether the loss is attributable to the unlawful discrimination.[15]The application of the basic principle to future financial losses is more difficult. We must consider what would have happened, but for the unlawful discrimination and what will happen and compare the two. Neither of these are certain. The burden of proof is on the Claimant.[16]The question of mitigation of loss also arises. The Claimant is expected to take reasonable steps to minimise the losses suffered as a consequence of the unlawful discrimination and to give credit for any payments he receives towards his losses. The Respondent cannot be expected to pay for any loss that flows not from the unlawful discrimination, but from the Claimant’s failure to act reasonably in light of that unlawful discrimination. The question of reasonableness as it relates to mitigation is to be determined by the tribunal itself taking into account all the circumstances. We also need to be mindful on the prospects that the Claimant might have been promoted, but equally might have lost his job.[17]In personal injury cases where the losses are long term, we have a choice between different approaches. The first approach is to endeavour to undertake a reasoned calculation of the earnings in the “what would have happened” and “what will happen” scenarios and deduct the latter from the former to identify the gap. The Actuarial Tables with explanatory notes for use in Personal Injury and Fatal Accident Cases (referred to as the Ogden Tables) have been developed for this purpose. The relevant edition is the Eighth Edition.[18]In order to be able to use the Ogden Tables it is necessary for us to make findings, in both scenarios, as to:• the Claimant’s likely retirement date (to determine which tables should be used)• his earnings including his prospects of receiving pay increases• whether any of the discounts found in Tables A to D should be applied – a discount for early death is built into the actuarial calculations behind the Ogden tables[19]An alternative approach to the calculation approach, where the picture is very unclear, is a Blamire award (named after the case of Blamire v South Cumbria Health Authority [1993] PIQR Q1). This allows for a broad brush approach to be taken. This is only really appropriate in exceptional cases. The preference will always be to undertake a reasoned calculated approach where possible.[20]The possibility of a Smith v Manchester award, where a lump sum is awarded that recognises loss of earning capacity/handicap on the labour market, should also be considered, but is not necessary when using the Ogden Tables to calculate residual earnings. This is also factored into the Ogden Tables. Facts The Claimant’s health[21]We did not have all of the Claimant’s medical records before us. Nevertheless we had a joint expert report by Dr Herescu, a consultant Psychiatrist, which addressed causation , prognosis and all relevant factors that we need to have regard to when considering the level of award for personal injury as set out in the JC guidelines and the issues identified in the legal assessment above.[22]The Respondent has not sought to challenge the content of the report by way of written questions to the expert nor by calling her as a witness. However they have raised issues regarding the reliability of some aspects of her assessment on the basis that they do not believe she had full access to the Claimant’s GP records at the time of writing the report. She references a final medical bundle dated 13 June 2023 in her report. It is not clear what this contained nor why the Respondent did not challenge it at the time if they thought she had insufficient evidence upon which to write her report.[23]We also had a GP letter dated February 2024 which sets out the Claimant’s current health conditions, some information on when they were diagnosed and what medications he is currently taking. We also had other GP notes and confirmation of dates in terms of treatment and diagnosis between 2020 and 2023. These were not a complete record.[24]The Claimant’s witness statement also dealt with a number of matters regarding his health, little of which was challenged.[25]The Claimant has numerous conditions. At the time of his dismissal the claimant had prostate cancer, (diagnosed in 2008), hypertension, a bad back and the onset of osteoporosis due to the hormone treatment he was taking for the cancer and lower urinary tract symptoms.[26]His health conditions have increased as set out in the GP report dated February 2024 and he now has the additional conditions of multiple joint and bone pain, hearing loss and depression.[27]It is clear from Dr Herescu’s report that her opinion was that the claimant had no previous history of mental health conditions. The Respondent seeks to cast doubt on the totality of the records before Dr Herescu and therefore the reliability of her conclusions on this point. However we have no reason to think that Dr Herescu’s assessment is wrong. There is a GP’s note (p322-324) stating that he was not diagnosed with depression until June 2020 which suggests that there had not been any earlier episodes of depression or if they were they had not been for some time. None of the GP notes we had referred to any mental health issues. We also had the Claimant’s evidence that prior to this event, he had not suffered from any such condition. We accept that evidence.[28]Dr Hersecu’s report is unequivocal in stating that the dismissal was the cause of the Claimant’s depression. We consider that it is reasonable for us to rely on her report which indicates that it was the Claimant’s dismissal that caused the injury of depression. The medical evidence is clear. He did not see his GP prior to his dismissal with any mental health issues. Therefore even during the potential stress caused by the facts or matters relied upon for the claims we did not uphold, the Claimant does not develop depression until after the dismissal. There was no evidence to suggest that if the Respondent had not dismissed him, he would nevertheless have gone on to develop depression or any other mental health matter due to the other matters which the Tribunal did not uphold as discriminatory.[29]Amongst several entries that we have had regard to, the expert report says as follows: “4.13 No diagnosis of mental health until June 2020 when he scored Moderately Severe for Depression (PHQ-9) was 16/27 and Moderate anxiety GAD-7 was 10/21. …. “6.1.6 Based on the mental state examination and on his medical history, he only developed depression in the context of losing his job. 6.1.7 He meets the criteria for severe depression and anxiety. 6.1.10 The grief response has persisted for an atypically long period of time following the loss (more than 6 months at a minimum) and clearly exceeds expected social, cultural or religious norms for the individual’s culture and context. Grief reactions that have persisted for longer periods that are within a normative period of grieving given the person’s cultural and religious context are viewed as normal bereavement responses and are not assigned a diagnosis. The disturbance causes significant impairment in personal, family, social, educational, occupational or other important areas of functioning. 6.1.11 His anxiety and depression scale have not improved despite being in an antidepressant since September 2021 (Citalopram 20mg tablets). He also received talking therapy over the phone as he expressed suicidal thoughts. 6.1.12 His PHQ-9 for depression is 22/27, indicating severe depression and his GAD-7 for anxiety is also severe at 21/21. 6.1.13 Prognosis for his depression is poor e.g. this indicates that their condition is unlikely to improve and that their quality of life will be significantly affected. Not having a job and not feeling useful and being invalidated by the workplace after 11 years of work indicates that his prognosis is poor.”[30]The medical evidence from the Claimant himself is that prior to this point, despite managing various different physical diagnoses such as prostate cancer, hypertension and lower back pain, he had never had any mental health difficulties or conditions.[31]We conclude therefore, that on balance of probabilities, there is a definitive causal link between the dismissal and the Claimant’s depression.[32]The Respondent asserted that given that we did not uphold several of the Claimant’s claims of discrimination, we should apportion the cause of the depression between those issues which we did not uphold as discriminatory and those that we did. We do not agree that there ought to be any apportionment between other non-discriminatory causes and the dismissal. The report and the chronology of the diagnosis of depression clearly tie the causation of the depression to the dismissal; not the issues that pre dated it. Whilst we can believe that the previous issues, which we did not find to be discriminatory, may have caused the claimant transitory stress, we accept that the Claimant has shown, on balance, that but for him being dismissed, he would not have developed depression. It is therefore not appropriate to apportion causation.[33]Taking into account the Judicial College guidelines outlines the factors to be taken into account in valuing claims of this nature we make the following findings of fact which we think are relevant to assessing the bracket for damages.[34]The Claimant says that he remains unable to work. He also says that he has not been able to work since June 2020 when he was diagnosed with depression. The medical report highlights that although he may be able to return to some part time work, the grief response he has had to the dismissal has continued for a longer period than would be expected and it says that the depression has caused low mood, disturbed sleep and social withdrawal.[35]We had no evidence to suggest however that he was no longer able to practically look after himself e.g. cooking, shopping etc. nor did we have any evidence as to whether he had carried out those tasks beforehand. The Doctor’s report stated that he looked kempt and there was no evidence of forgetting to eat or anything about any self neglect or an inability to care for himself. Some of the relevant extracts of the reports are as follows:6.2.1 Due to his depression, the Claimant is no longer enjoying activities he used to love e.g. going out with his wife, talking to his family, eating out, going to shows, and being with his family.6.2.2 His sleep is impaired and he feels angry as he lost money, he feels ashamed whom everyone in the family asked for advice and he feels he lost that role. He is all consumed by the process and his quality of life is reduced significantly.6.2.3 He is isolated as not in touch with anyone from work.6.2.4 He lost his appetite and lost interest in watching the news, movies, and reading books.6.2.5 He reported he cannot focus and concentrate as he used to do in the past.6.2.6 He reported alienation from his family as they perceive him "irritable".6.2.7 He reported he mainly stays indoors and he ends up focusing more on his physical pain.[36]The Claimant was not challenged on his witness statement with regard to the impact it has had on him. In his witness statement he says that the dismissal has caused social isolation and a feeling of worthlessness. He says he has socially withdrawn and part of that comes from the fact that he had social links to his colleagues which have now been severed.[37]The expert report states that the antidepressants are of a therapeutic dose at 20mg. He has had talking therapy which has also had little effect. The expert does not suggest any further treatment that would be successful that has not already been tried.[38]We did not have any evidence regarding future vulnerability presumably due to the Claimant’s age and the fact that he has not recovered. However there is no suggestion that he will get worse or be more susceptible to a worsening of his condition in the future.[39]The prognosis given by the expert was generally poor. Some relevant extracts are as follows: “6.1.13 Prognosis for his depression is poor e.g. this indicates that their condition is unlikely to improve and that their quality of life will be significantly affected. Not having a job and not feeling useful and being invalidated by the workplace after 11 years of work indicates that his prognosis is poor.” 6.5 The Claimant's prognosis 6.5.1 Prognosis for his depression is poor e.g. this indicates that their condition is unlikely to improve and that their quality of life will be significantly affected. Not having a job and not feeling useful and being invalidated by the workplace after 11 years of work indicates that his prognosis is poor. 21. However she does say that 6.8.6.2 Should environmental changes occur e.g. he finalises the process around his dismissal; he may contemplate finding some other activity/part-time work so he can return to feeling useful and socialise and remove the risk of isolation, shame, and guilt he has been experiencing.[40]The Claimant clearly has sought medical help and has availed himself of all treatments prescribed. The expert states as follows: 6.8.4.4 His depression is not responding to the treatment plan which is in line with the treatment guidelines. Returning to Work[41]We have a document dated February 2024 which confirms that the Claimant is unwell with depression as of that date. It also sets out the other medical conditions that the Claimant has.[42]Prior to being dismissed, the Claimant already had many of the conditions listed and had only had 3 days of sick leave. We accept the Claimant’s evidence that he continued to work despite the impact of his cancer and his other conditions such as hypertension, osteoporosis and a bad back. From evidence he gave to us we conclude that the Claimant was clearly motivated by and held a lot of his self-identity in his work and in working more generally. We accept his evidence that prior to the depression he liked work and would have continued to work as long as he was able.[43]We consider it more likely than not that some of the conditions, such as his bad back and osteoporosis will have deteriorated in the 4 years since his dismissal due to the passage of time and the Claimant’s age. Whilst we do not intend to be pejorative in our comments, the passage of 4 years in your 70s is likely to be more significant from a health perspective than during middle age particularly when you have several chronic conditions as the Claimant does. Nevertheless we accept the Claimant’s evidence that had he remained capable of doing so, he would have continued work until he was 80.[44]We had no evidence to suggest that but for his depression that he would not have been able to continue working until the date of the remedy hearing as his current medical health remained similar to that which he had before the dismissal save for his depression and he had had very few days of sickness absence prior to his dismissal.[45]We have taken into account the deterioration of his other conditions and his age but we accept that he would have been at work but for the depression.[46]The Respondent asserts that they would have dismissed him at some point in accordance with their retirement policy which states that retirement occurs at 65 as standard but with permission people can continue working until past 70. We found in the liability hearing that the Respondent had not sought to apply that policy to the Claimant as at the time of his dismissal he was 72. We were not provided of any evidence from the Respondent that suggested that they had now started to apply the policy nor how that would have been implemented. Mr Sethi states that it applies but he could not say at what point he believes the Claimant would have been dismissed nor did he provide a likely dismissal date. More importantly we had no witness evidence from anyone at the Respondent which says how they would have come to realise the Claimant’s age nor what they would have lawfully done about it to bring the Claimant’s employment to an end. We also had no evidence as to how they treat other employees of a similar age.
The Facts
[47]We conclude, taking into account the Claimant’s evidence that he wanted to continue work and the lack of any Respondent evidence that suggests that they would have taken steps to terminate his employment, that but for the depression it is more likely than not that the Claimant would have continued working until he was 80.[48]As already referenced, the Claimant’s most recent GP report dated February 2024 confirms that his depression and anxiety continues and is confirmed that the Claimant would, in effect, not be able to work between the period of November 2023 to today’s date. We conclude that it has not been possible for the Claimant to apply for jobs from November 2023 until the date of this report which is February 2024.[49]The joint expert report states that the Claimant may be able to apply for roles for part time work once the process of seeking legal redress is complete. The Respondent produced significant evidence of the availability of part time administrative roles that he could have applied for during the past few months.[50]The Claimant was taken through several of the roles in the bundle and stated that none of them were suitable as he did not have the necessary experience or skills to carry them out. The Respondent’s solicitor’s evidence was that he had taken the Claimant’s previous roles into account when considering what jobs to include and that these were all relatively basic administrative roles.[51]We note that they fall within various different sectors. We are sure, for example, that a charity fundraising role is likely to have required some previous experience of fundraising and/or charity work. We also consider that it is very likely that the Claimant’s age would be a significant barrier firstly to an employer offering him a role and secondly to the reasonableness of requiring him to learn significant amounts of new information regarding entirely new industries. We note that there were no jobs specifically within the medical sector which was clearly the Claimant’s area of knowledge and expertise. We also note that all of the roles appear to be ‘entry level’ work which is not in any way commensurate with the Claimant’s previous position nor his age. None of the research done comments on the Claimant’s age or the impact this might have on his ability to secure such entry level positions.[52]The Claimant on the other hand had clearly restricted his idea of what he might do in the future to possibly being a medical interpreter. He provided us with no information as to whether he had properly explored this possibility nor of the skills and qualifications that might be required to carry out such a role. He said however that he would not be able to find such work because he now had a reputation in his circles of being a ‘bad man’. He did not indicate any willingness to look beyond his small circle of knowledge and connections.
Conclusions
[53]It was the Respondent’s decision to dismiss the Claimant that caused his depression. We accept that the Claimant has, on the balance of probabilities, provided us with evidence that but for the dismissal he would not have developed depression. Pain suffering and loss of amenity[54]The JC Guidelines state as follows for the different brackets. “Moderately £19,070 to £54,830 Severe In these cases there will be significant problems associated with factors (i) to (iv) above but the prognosis will be much more optimistic than in (a) above. While there are awards which support both extremes of this bracket, the majority are somewhere near the middle of the bracket. Cases involving psychiatric injury following a negligent stillbirth or the traumatic birth of a child will often fall within this bracket. Cases of work-related stress resulting in a permanent or long-standing disability preventing a return to comparable employment would appear to come within this category. £5,860 to (c) Moderate £19,070 While there may have been the sort of problems associated with factors (i) to (iv) above there will have been marked improvement by trial and the prognosis will be good. Cases of work-related stress may fall within this category if symptoms are not prolonged.”[55]Having considered the evidence against the JC guidelines we consider that the evidence we have regarding this evaluation demonstrates that the Claimant’s depression falls within the moderately severe bracket as opposed to just the moderate bracket proposed by the Respondent. The Claimant asserts that he should be at the every top of the bracket. Whilst many of the areas outlined below do push him towards the top end of the bracket we did not consider that we have sufficient evidence to show that his condition is so bad that he should be right at the top of the bracket.. For those reasons we stop short of assigning the top of the bracket and think that it is appropriate to award £42,000.[56]We reach this conclusion because(i) The Claimant’s ability to cope with life, education and work has been severely affected particularly with regard to work. We had less evidence regarding the impact it has had on his day to day life and we note that he has not provided us with anything that suggests that he is not able to manage with day to day aspects of living such as cooking, shopping, eating or exercise.(ii) The Claimant’s relationship with friends and family does appear to have been moderately severely affected. He says that he is described as snappy and has alienated some of his family members. He also states that he has withdrawn socially and fails to find joy in any aspects of his life such as theatre trips. The fact that his social life was bound up with his ability to work and that he is unlikely to be able to work again, means that this impact is likely to continue to be moderately severe.(iii) He has had all treatment recommended for someone with depression and the dosage of anti-depressants is described as therapeutic. Despite this his depression persists and no further treatment has been prescribed or recommended by the expert or his GP.(iv) We did not have significant amounts of information about his future vulnerability but we presume that this is because he has not recovered and has a poor prognosis for recovery and therefore how susceptible he might be to a relapse is somewhat moot.(v) His prognosis is poor. The only suggestion of improvement in the report is that once this Tribunal process is finished he may be able to move on and find some part time work and start to build his confidence and selfworth back a bit. However it is couched in possible terms not absolute.(vi) Whether medical help has been sought is clear from the information above.[57]Taking all of this into account we therefore find that the Claimant’s health has been impacted in the moderately severe bracket and towards the upper end of it given the poor prognosis, the fact that he has tried all treatment yet is unlikely to significantly improve and the level of impact it has had on his private and working life. Special Damages Losses to Date[58]The Claimant asserts that his losses ought to be assessed on the basis that he would have received a pay rise in accordance with the translation of the document at page 325. We do not consider that the Claimant has shown, on balance of probabilities, that he would have received a pay rise since his dismissal and/or that it would be at the level he suggests. The document we have seen does not indicate how or why that award would be made nor when it commenced nor that it has been enacted by the Respondent in successive years. The Claimant and those representing him have had a significant amount of time to obtain evidence in respect of any such pay rise and have chosen not to produce it for this hearing.[59]The Respondent asserts that because the expert report states that once the Tribunal hearing has concluded, the Claimant might be in a position to apply for part time work, he has been unreasonable in his failure to submit any applications for work.[60]We make the following observations regarding this argument:(i) The Tribunal proceedings did not conclude in November. They will hopefully conclude today.(ii) The Claimant has remained unwell since the liability Judgment was issued as evidenced by the GP report dated 27 Feb 2024 (p 322-324) We therefore conclude that in the period between the liability judgment being unreasonably by not looking for work as he remained unwell throughout that period and is still unwell.[61]Turning then to the assessment of his future losses. We find on balance, that the Claimant is not going to be able to secure alternative employment between now and his 80th birthday. We reach this conclusion for a variety of reasons some of which are repeats of findings above.[62]Firstly, we consider that it is unlikely that his health is going to improve significantly and certainly not immediately from the point of the Tribunal process being completed. The medical evidence suggests otherwise. Whilst it may improve in time to an extent as per the expert report, it is not clear how long such an improvement will take nor that his health will improve sufficiently for the Claimant to, in effect, reinvent himself and commence an entirely new career. That is the evidence suggested by the Respondent of jobs that they think he ought to be able to apply for either since November or going forward.[63]We accept that there are going to be relatively few jobs within the Claimant’s knowledge or expertise that he could start anew in circumstances where his mental health is fragile.[64]We believe that this assessment is particularly pertinent given his age. It is within the Tribunal’s general knowledge that finding work as an older person is more challenging as many employers are reluctant to employ older people and particularly people over the normal pension age. Therefore even if the Claimant feels well enough to start applying for roles, the number of roles which are appropriate or accessible for him to obtain will be relatively small and we think it is unlikely that he will be readily offered a role given his age.[65]Nevertheless, we do accept the Claimant’s evidence that had he been allowed to remain in his role with the Respondent, he would have continued to work there until he was 80. His identity is strongly bound up with work. He has worked his entire life, giving evidence that he had worked since the age of 9 and that in his head he would have worked until he died. The Claimant knew his job well. He was, it seems, having been there for 11 years, considered good at his job and we have no evidence from the Respondent that there were any performance issues. Remaining in job that you know well, where you have the support of colleagues and that is unlikely to provide significant challenges or difficulties is far easier than attempting to re-train or even start a job with a new employer within your existing skill set. Given that the Claimant had only had 3 sickness days in recent history, we have nothing to suggest that his health would have significantly deteriorated such that his employment would have ended before 80 and we accept his evidence that he would have wanted to work until 80.[66]In those circumstances therefore we conclude that the Claimant is not likely to be able to reasonably find alternative work between now and his 80th birthday but that he ought to be compensated until his 80th birthday as but for his discriminatory dismissal, he would have continued working until then.[67]With regard to the methodology of calculating the future loss, having read the Ogden Table guidance, we accept that the Respondent’s methodology is correct. The Respondent uses Table 36 and interpolates the period correctly. We conclude that Table 36 is the correct table to use for the following reasons:[68]At page 20 of the Ogden Tables the following guidance is given (i) (m) Fixed periods 41. In cases where pecuniary loss is to be valued for a fixed period, the multipliers in Table 36 may be used. These make no allowance for mortality or any other contingency but assume that regular frequent payments (e.g. weekly or monthly) will continue throughout the period. These figures should in principle be adjusted if the periodicity of payment is less frequent, especially if the payments in question are annually in advance or in arrears.[69]We have considered whether there need to be any adjustments in terms of life expectancy but given the shortness of the period, we do not consider that this is appropriate. We also agree that none of the tables A to D need to be applied to the calculation.[70]We do not accept that the Claimant has established why we should use either the Blamire approach nor the Smith v Manchester approach and Mr Adams made no submissions on this point.[71]It was agreed between the parties that Grossing up was not necessary due to the provisions of s406(1)(b) Income Tax (Earnings and Pensions Act) 2003 which states that the sums for special damages should be calculated on a net basis and that there is no account to be made for tax on an award of damages for personal injury. Calculations[72]Pain suffering and loss of amenity Pain suffering and loss of amenity = £42000 Interest on the above at 8% = £12,768[73]Special Damages Agreed figures Annual net salary = £44,916.02 Monthly net salary = £3,743 Weekly net salary = £863.77 Total special damages to date = £169,033.95 (using figures and calculations in Claimant’s most up to date schedule of loss where a salary increase was not included) Interest calculation of 8% = £25,694.18 Future losses = £83,094.64 (£44,916.02 x 1.85 as set out in the Respondent’s counter schedule of loss) Total payable Grand total = £332,590.76