Ms S Heimann v The Ministry of Defence: 2214934/2023 and 2303044/2024

EMPLOYMENT TRIBUNALS

Case No 2214934/2023, 2303044/2024

Between

Ms S HeimannClaimant

The Ministry of DefenceRespondent

Before

Employment Judge Nash

In person for claimant

Mr Edwards (instructed by counsel) for respondent

Date 20 September 2024

JUDGMENT

[1]The respondent failed to comply with a duty to make reasonable adjustments under ss20 and 21 Equality Act 2010 by failing to comply with procedures on or around 13 October 2023.

[2]The respondent did not fail to comply with a duty to make reasonable adjustments under ss20 and 21 Equality Act 2010 in any other claim.

[3]The respondent discriminated against the claimant contrary to s15 Equality Act 2010 in that it required her to return to work at short notice in August 2023.

[4]The respondent did not discriminate against the claimant contrary to s15 Equality Act 2010 in any other claim.

[5]The respondent did not victimise the claimant contrary to s27 Equality Act 2010.

REASONS

[1]The remedy hearing in these proceedings was listed for one day on 22 November 2025. However, the listing proved short. In the event, the tribunal was able to hand down its decision as to the injury to feelings head of loss on 22 November, and the remaining heads of loss went part heard to 6 January 2025.

[2]The tribunal was assisted by a remedy bundle to 523 pages. The tribunal heard from the claimant who swore to a five-paragraph remedy statement. The tribunal also had sight of a statement from Ms T Lucas, one of the respondent’s HR Casework Advisors, who did not appear before the tribunal.

Issues

[3]The issues to be determined at the remedy hearing were as follows.a. What if any sum should be awarded for injury to feelings?

b. What if any sum should be awarded for aggravated damages

c. What if any sum should be awarded for loss of earnings and benefits including pension

d. What interest should be awarded on all heads of compensation. Injury to feelings

[4]The Tribunal reminded itself as to the well-established law relating to compensation for injury to feeling. The purpose of such compensation is not to punish a Respondent but to compensate the Claimant for her loss. Compensation should be just to both parties. Damages must compensate, and feelings of indignation at the discriminator’s conduct should not be allowed to inflate the award. Awards should not be too low as would diminish the respect for the policy of anti-discrimination legislation. On the other hand, awards should be restrained and excessive awards could be seen as the way to untaxed riches. Awards should have some general similarity to the range of awards in personal injury cases. The Tribunal should also take into account the value in everyday life of the sum they have in mind and should remember the need for public respect for the level of awards made.

[5]Matters compensated for are subjective. They include but are not limited to upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression.

[6]Compensation for injury to feelings is awarded following the updated guidelines in Vento v Chief Constable of West Yorkshire

[2002] EWCA Civ 1871

. As the claim was presented before March 2024 the bands would be a lower band of £1,100 to £11,200 a middle band of £11,200 to £33,700 and an upper band of £33,700 to £56,200. When determining the level of compensation, it is not the severity of the discriminatory conduct which determines compensation, but the severity of the impact upon the victim. The conduct is relevant in as much it casts light on the likely severity of the effect on the victim.

[7]The tribunal is awarding compensation for the two acts of discrimination which it found had occurred. It had not found for the claimant on a larger number of other allegedly discriminatory acts.

[8]The discrimination which the tribunal found had occurred was set out in full in the liability judgment. In brief, the acts of discrimination were: -a. an email by Colonel Beatty in August 2023 requiring the Claimant to return to work at short notice; and

b. the Respondents failure in October / November 2023 to apply its procedures to the Claimant.

[9]The Tribunal firstly considered Colonel Beatty’s email. In and of itself this was not the focus of the claim and of the claimant’s sense of injury. Nevertheless, it played its part. It was a direction for her to return to work, but - notably - did not tell the Claimant to what job she was returning, despite the respondent knowing that this was a fundamental Claimant concern. Further, the tone of the email was far from sympathetic or supportive. The Tribunal was satisfied that this email added materially to the Claimant’s distress and to her sense of isolation and being in effect ignored. Nevertheless, in the view of the Tribunal the conduct in October/November 2023 was more serious.

[10]The Tribunal had found that the respondent’s conduct in October and November 2023 was a repeat of its earlier course of conduct in late 2022 and early 2023, in not engaging with its policies. The tribunal had found that this earlier course of conduct did not put the claimant at a disadvantage. However, by virtue of the passage of time, and intervening events, the Claimant by October 2023 was in a different situation. In late 2022, the claimant had to a real extent benefitted from the Respondent not applying its procedures to her because she was shielded from the adverse effects of those procedures. By October 2023, in contrast, she needed clarity because she was deeply concerned about her position with the respondent. She had been absent from work with no prospect of return. The Tribunal is satisfied that the October 2023 failure was a real material cause of her sense of injury to her feelings.

[11]The Tribunal took into account that there were other (non-discriminatory) causes of the Claimant’s sense of injury, including her concern with Ms Halbinger, and the Respondent’s failures in respect of the grievance. These could not be compensated for under this head of loss. However, the fact the Claimant was essentially left isolated with no “firm spot on which to stand” was a significant part of the injury that she suffered.

[12]The Tribunal took into account the context in which the respondent’s October failings occurred. The Claimant had had the benefit of full pay for most if not all of the time she was off work. It was unlikely that she would have been entitled to such sums had the respondent applied its procedures. Therefore, the respondent’s discriminatory conduct resulted not only in a detriment, but also an advantage to the Claimant. She received full pay until January 2024 whilst not at work, which she might well have not received, absent the discrimination.

[13]The tribunal took the Claimant’s own evidence at the liability and remedy hearings into account. The Tribunal accepted that the Claimant viewed her work for the Ministry of Defence as her career and that her career has suffered a significant setback. She has been involved with the Ministry of Defence in a working capacity for 16 years. The Tribunal accepted that working with the Armed Forces is a unique and to some extent irreplaceable workspace. Such a career setback in working with, say, one large retailer would have materially less impact, in that a claimant might hope to gain alternative and equally satisfying work with another large retailer. The tribunal is satisfied that the discrimination had a real effect on the claimant’s career and inevitably this has a real impact on the Claimant and her sense of self.

[14]Her situation with the respondent was difficult prior to the October 2023 discrimination. The respondent’s failures in October crystallised the difficulties in which the claimant found herself increasingly isolated and with less and less faith in returning to her career. She had been left to drift by an employer who gave the impression that it did not know what to do with her and had abandoned her.

[15]The claimant’s remedy statement was made up only of five short paragraphs. This did not deal with the question of how much of the claimant’s injury to feelings were caused by the acts of discrimination, rather than the acts which had not been found to be discriminatory. The claimant stated that, Whilst working in a department which advocates for mental wellbeing, I did not expect to be treated the way I have been. I am currently an inpatient at a treatment facility, trying to rebuild myself. This in itself is extremely hard and traumatic. I have lost my confidence and feel nervous and anxious most of the time. I feel I have lost a career which I have undertaken with pride since 2006, although in different roles and with different employers, sometimes contractors. I feel that due to the breakdown of my mental health, I will need to take a while to recuperate.

[16]Tribunal heard little from the Claimant about her current situation, about which she was reticent. The tribunal was not provided with any supporting evidence of injury to the Claimant. There was no medical evidence, including GP records. The Tribunal could take the Occupational Health reports and sick notes into account but they were of limited assistance. The last Occupational Health report was in June 2023 prior to the two acts of discrimination. There was no input from Occupational Health as to the Claimant’s health after either of the acts of discrimination. The claimant’s own evidence as to her mental state was very limited. The tribunal only learnt about the Claimant’s current mental health difficulties and the fact that she is spending a period of time in residential care by the tribunal asking questions of the claimant at the hearing. Again, there was no detail or corroborating evidence of this.

[17]Nevertheless, the tribunal accepted the claimant’s unchallenged evidence that she was still too ill to work and was currently in residential care due to concerns for her mental health.

[18]The Employment Appeal Tribunal has recently addressed the issue of limited evidence in Eddie Stobart v Graham EA-2023 – SCO – 000073-JP as follows, “So long as the tribunal does not lose sight of the fact that it is compensating a claimant for the injury suffered, rather than the manner of discrimination, the latter can be a useful guide to inferring the former when evidence is otherwise sparse… at its highest…the manner of discrimination is a tool by which the tribunal can properly draw an inference of secondary fact as to the injury suffered by a claimant when, as often happens in such cases, there is little else to go on.”

[19]The Tribunal acknowledged it is hard to evaluate injury to feelings by means of hard cash. The tribunal noted that the treatment in October and November 2023 was in itself relatively brief. However, the tribunal accepted that the context exacerbated the effect on the claimant. The claimant had, in effect, been left “to drift” by the respondent which knew that she was seeking to recover from stage 4 cancer and suffering mental ill health. Thus, the respondent’s discriminatory failings occurred when the claimant was very vulnerable. The tribunal was satisfied that injury would have been materially less had this failure occurred when the claimant was in a less vulnerable position. The tribunal found that the acts of discrimination were not isolated incidents but formed part of a lengthy episode in the claimant’s employment.

[20]This was not a situation where there was directly abusive behaviour. Colonel Beatty’s email was at best unsympathetic. The discrimination in October was an act of omission, the respondent failed to do something rather than doing something to the claimant.

[21]Taking all the above factors into account and viewing the issue holistically, In the view of the Tribunal the appropriate level to compensate for the two acts of discrimination was at the bottom of the middle band, £12,000. Aggravated Damages

[22]The Tribunal at the first part of the remedy hearing ordered that, if the Claimant wished to pursue loss of aggravated damages as a head of loss, she confirm this to the Tribunal and respondent accompanied by an amended schedule of loss. The Claimant did so, and the Tribunal accordingly considered this head of loss.

[23]The tribunal heard evidence from the Claimant on oath. From the respondent, the tribunal considered a written witness statement by a Ms Lucas of the Respondent going to the question of aggravated damages. The tribunal took into account that Ms Lucas’s evidence had not been subjected to cross examination and was not given on oath. Nevertheless, the Claimant confirmed to the Tribunal that she was not aware of any factual inaccuracies in Ms Lucas’s statement, which was in effect a chronology of what had happened in respect of the Claimant’s grievance.

[24]The Tribunal considered firstly whether there were grounds on which aggravated damages might be awarded.

[25]The Respondent in its submissions made reference to the case of Commissioner of Police of the Metropolis v Shaw

UKEAT/0125/11/ZT

. In this case the then President of the Employment Appeal Tribunal set out guidelines as to the applicability of aggravated damages in the Employment Tribunal. As Mr Edwards for the Respondent pointed out, it is stated at paragraph 22 of Shaw that there are broadly three categories in which aggravated damages may be appropriate. The category relied on in these proceedings was the respondent’s subsequent conduct. According to paragraph 22c of Shaw, … there can be other kinds of aggravating subsequent conduct, such as where the employer rubs salt in the wound by plainly showing that he does not take the claimant's complaint of discrimination seriously: examples of this kind can be found in Armitage, *476 Salmon and British Telecommunications plc v Reid

[2004] IRLR 327

. A failure to apologise may also come into this category; but whether it is in fact a significantly aggravating feature will depend on the circumstances of the particular case. (For another example, see the very recent decision of this tribunal (Silber J presiding) in Bungay v Saini(unreported) 27 September 2011. This basis of awarding aggravated damages is rather different from the other two [paragraphs 22a and b] inasmuch as it involves reliance on conduct by the defendant other than the acts complained of themselves or the behaviour immediately associated with them…tribunals should be aware of the risks of awarding compensation in respect of conduct which has not been properly proved or examined in evidence, and of allowing the scope of the hearing to be disproportionately extended by considering distinct allegations of subsequent misconduct only on the basis that they are said to be relevant to a claim for aggravated damages.

[26]The Tribunal was satisfied that most of the evidence that it had heard in respect of the subsequent conduct - which was the Respondent’s treatment of the Claimant’s grievance - had already been heard at the liability hearing. The tribunal had accordingly made most of the findings of fact which might be relevant at the liability hearing. The tribunal heard little evidence at this remedy hearing, being only the short written statement by Ms Lucas and some evidence from the Claimant.

[27]The Claimant’s essential complaint was that the Respondent had failed to deal with her grievance effectively. Her grievance was presented in May 2023. However, as set out in Ms Lucas’s statement and frankly accepted by Mr Edwards for the Respondent, the Respondent’s failure to deal with the grievance was significant. As at the date of the part heard remedy hearing, January 2025, there was still no indication as to when the Claimant might receive a decision on her grievance.

[28]The Tribunal considered whether there was a link between the grievance and the acts of discrimination found at the liability hearing, being Colonel Beatty’s instruction to the Claimant to return to work in July 2023 and the respondent’s failure in October 2023 to follow its procedures. The Tribunal carefully considered the subject of the grievance which, as the Respondent pointed out, predated the two acts of discrimination. The crux of the grievance was that the Claimant had been left in limbo; she was not working, and she wanted to return to work, but there was no progress in any direction. The grievance also went into some detail about what the Claimant saw as mismanagement by her line manager Ms Halbinger, for instance the Claimant being asked to back date documents.

[29]The Tribunal accepted that the grievance was about essentially two things. Firstly, the acts to which the Claimant had been subjected, including by Ms Halbinger, and secondly the situation as it was in May 2023, that the Claimant had been left to drift and so was increasingly concerned about her situation.

[30]In the view of the Tribunal, Colonel Beatty telling the Claimant to return to work was not materially linked to the grievance. In fact, it was inconsistent with the subject of the grievance as it was the respondent actually making a decision.

[31]The Respondent’s failures in October 2023 to engage with its own procedures were linked to the grievance because they were essentially part of the same problem. The Respondent was not engaging with the Claimant and not taking steps to see whether it was possible for the Claimant to return to work, as she strongly contended that she wanted to do. The Tribunal was satisfied that the discrimination in October did show that the Respondent was not taking the Claimant’s situation sufficiently seriously. The Tribunal was satisfied that the Respondent’s failure to progress the grievance was a further indication of this. It was treating the Claimant with indifference and in the view of the Tribunal this was an example of an employer rubbing salt into an employee’s wound.

[32]The Tribunal considered the chronology. After the grievance was submitted in May 2023, the Tribunal had found that the Respondent had decided that the best way of dealing with the problems which had given rise to the grievance, would be to seek to get the Claimant back to work. In the view of the tribunal, this was a legitimate approach.

[33]The difficulty was that in time it became clear that this was not going to work. The Respondent explicitly accepted later in 2023 that therefore it did need to engage with the grievance. The respondent told the Claimant that it was progressing the grievance. The Respondent then told the claimant on a number of occasions that it would comply with its own grievance procedure. However, there was a near complete failure by the Respondent to do so. There was a short delay caused by the Claimant in August, but this was very slight in the context of the total delay.

[34]The claimant had presented her grievance in May 2023. Although the Claimant had had her first meeting with the new investigation officer prior to this hearing in January 2025, there was still no indication at all of when the grievance procedure was expected to complete. There was no indication that the Respondent was progressing the grievance and keeping the Claimant informed. For instance, the respondent had not informed the claimant of a timeframe for any further meetings, the delivery of any investigatory report and the final decision. While the Claimant might have been somewhat wary of relying on such a promise by the Respondent, she was in a notably worse position because she was given no indication whatsoever of any timeframe. As the Respondent in effect accepted, this delay was indefensible.

[35]Further, the Claimant could not view this failure as a being caused by the Respondent lacking resources to deal with grievances. As the Claimant was aware, the Respondent is a large well-resourced organisation with a developed HR function. She was aware that the Respondent had resources and had chosen not to deploy them in respect of her grievance. There was no good reason given why the Respondent could not comply with its own grievance procedure for well over a year – after its original approach had failed - with still no resolution in sight.

[36]The Tribunal accepted that this aggravated the Claimant’s sense of distress. The Tribunal accepted that the Claimant is involved in legal proceedings which would be more important to her than her grievance. Had the Claimant been terminated and the only ground on which she sought aggravated damages was such a longstanding failure to comply with a grievance procedure after termination, the Tribunal would not be likely to find that aggravated damages were engaged. The fundamental difference in these proceedings is that this Claimant is still employed. There is a continuing employment relationship which is capable of sustaining damage.

[37]The Tribunal reminded itself of the risk double counting in compensation. A tribunal must be careful not to award compensation for aggravated damages for an injury that has already been compensated in the injury to feelings award. However, the Tribunal was satisfied that it was possible to sufficiently disentangle the two matters. The failure in respect of the grievance postdated October 2023. Whilst the Respondent did show signs of movement on occasion, nothing material happened.

[38]The Tribunal was therefore satisfied that it should make an award of aggravated damages and went on to consider quantum.

[39]As the Respondent submitted, the tribunal saw no medical evidence going to the impact on the claimant of the failure to deal with the grievance. The Tribunal knew that the Claimant had received impatient medical treatment for her mental health because she was in a facility at the date of the first remedy hearing in November 2023. But it saw no medical evidence going to this. However, the Tribunal had some doubts as to whether a medical expert instructed in the last few months, would give useful evidence as to which particular element of a mental injury was caused by the failures before or after October 2023, save that the Claimant had, as time went by, less and less hope of any constructive resolution.

[40]In respect of the sum awarded, the tribunal noted the following factors. The Respondent drew the Tribunal and the Claimant’s attention to paragraph 29 of Shaw where the Employment Appeal Tribunal stated that most awards for aggravated damages lie between £5,000 and £7,500. The respondent’s submission was that, taking into account inflation, the updated figures would be £8,200 to £12,350. The tribunal also took into account the fact that, according to the Remedies Handbook, “There is no specific calculation but it would appear from the decided cases that £20,000 is the top end of the bracket for aggravated damages.”

[41]The Tribunal sought to take a proportionate approach to the quantum of the award. In view of the Tribunal, the Respondent’s conduct in respect of the grievance, while significant, was the respondent failing to do something, rather than actively doing something. For instance, the Respondent had not taken active steps such as abusing the Claimant during the hearing or indicated any motive which was spiteful or vindictive. The award should therefore be at the lower end of the spectrum.

[42]The Tribunal also took into account when considering proportion that it had made an award of £12,000 for injury to feelings.

[43]The tribunal taking all these factors into account, concluded that the award for aggravated damages should £6,000. Financial Losses

[44]Disability discrimination is a statutory tort and the Tribunal in making an award for loss of earnings, including pension and benefits, should seek to put the Claimant in the financial position she would have been in, had there been no discriminatory acts.

[45]The Tribunal was satisfied that there was no economic loss flowing from the first act of discrimination, the instruction in July to return to work. The money paid by the respondent to the claimant and its basis did not change.

[46]The tribunal went on to consider whether any loss of earnings flowed from the second discriminatory act, the failure of the Respondent to follow its procedures in October 2023. The Tribunal had to reconstruct what might have been if the Respondent had followed its procedures in October 2023 and then compare that with the circumstances in which the claimant finds herself.

[47]The Tribunal followed the guidance by the then President of the Employment Appeal Tribunal in Software 2000 Ltd v Andrews

[2007] IRLR 568

as to how a Tribunal should seek to construct a hypothetical situation. Essentially a Tribunal must speculate as to what would or might happen, based on the evidence and on its common sense, experience and sense of justice. It is rare that there will be insufficient evidence for the tribunal to conduct this exercise.

[48]The Tribunal determined that, had the Respondent complied with its correct procedures in October 2023, it would have invoked the sickness absence procedure. The claimant was absent sick. The respondent would have worked through the sickness absence procedure, which would have involved inviting the Claimant to a sickness meeting most likely in late October. This would have led to the claimant returning to work on a phased return.

[49]The tribunal was satisfied that the claimant could not return to her old role, so this would have been to a new role. The tribunal found it likely that the respondent would have found a suitable new role for the following reasons. According to the Respondent’s evidence, there were a number of vacancies at the Claimant’s level. The Claimant was a long-standing member of staff, and the Respondent accepted there were no issues with her capability and performance, save in respect of her illness. The Claimant was, the Tribunal found, a committed member of staff who wished to return and was motivated to do so.

[50]Accordingly, the Tribunal found that the respondent would have had the claimant return in a new role at a similar level, but away from Ms Halbinger, and on a phased return. It would likely have taken her three months to build up to full time duties. The tribunal based this finding on the information from occupational health, the Claimant’s own evidence and on the Tribunal’s view of the likelihood of these events. That is to say, the Claimant would have built up to full time working by the end of January 2024.

[51]The Tribunal went on to consider what were the chances of the Claimant being able to continue in such a role on full time basis. The Tribunal found that there was only a 25% chance of the Claimant being able to continue in the full-time role for the following reasons.

[52]The Tribunal saw no medical evidence going to this scenario; however, the Claimant was ill in September and October 2023 and had been ill for a lengthy period of time before that.

[53]Further, the Claimant on her case had suffered very serious and unfortunate mental effects from her Tribunal hearing - she had become disassociated. The Tribunal is well aware that Tribunal proceedings are a unique event for most people and the stresses involved in a Tribunal hearing are not the same as the stresses involved at work, which is a much more familiar environment. Nevertheless, the Tribunal was satisfied that returning to work for the Claimant would have been very stressful. She would be going into a new role, albeit one that may not have been entirely unfamiliar, and would have had to prove herself in a new role and with new people. This would be inherently stressful. Whilst the tribunal was satisfied that the Claimant was highly motivated, she would still have been at a disadvantage because of her health issues. Accordingly, the Tribunal found that there was a 25% chance of the Claimant successfully being able to work full time from early 2024.

[54]Next, the Tribunal had to consider what would have happened had the Claimant succeeded in her return, that is had the 25% possibility come to pass. The Tribunal had to construct the scenario where the Claimant was able to maintain working full time from early 2024. If the Claimant’s health had permitted her to do this, the Tribunal was satisfied that all other evidence pointed to her continuing to work for the Respondent. She had a long-standing relationship with the respondent, and she was strongly motivated to return. It was likely there that she would have continued with this career for a good number of years. In the view of the tribunal, she was likely to have continued to work for the respondent for at least five years.

[55]The Tribunal went on to consider the duty on the claimant to mitigate such a loss. The Tribunal reminded itself that the Claimant is under a duty to mitigate but the burden is upon the Respondent to prove that the claimant had failed to mitigate.

[56]The Tribunal reminded itself of the factual scenario - a Claimant who was well enough to work full time from February 2024. In the view of the Tribunal there were factors that would have made it more likely that the Claimant could obtain alternative work. In January and February 2024 in London and the Southeast there was a tight labour market. The Claimant in order to mitigate would have been looking for a job at around £30,000, which is lower than the mean salary in London and the Southeast. However, there were factors which would have made it more difficult for the claimant to find alternative work. In the scenario in which the claimant was well enough to work full time, she would still have suffered from a considerable handicap in the labour market - her sick record. In the view of the Tribunal this would have been a significant disadvantage to the Claimant when seeking alternative employment.

[57]The Tribunal found that, had the Claimant mitigated such a loss, it would have taken her a year to find work on a comparable salary.

[58]Accordingly, when calculating what would have happened had the claimant been able to return to full time work in early 2025, there would have been full loss during the phased return until the end of January 2024 and then one year’s loss from the beginning of February 2024 to the end of January 2025. The loss would have been the salary and benefits that the claimant would have received in that time, including any changes such as pay rises. That is the chance which the claimant lost. She had a 25% of achieving that outcome and therefore the losses following the phased return would need to be reduced by 25%.

[59]The Tribunal is satisfied that there should be no uplift under s.207(a) TULRA for failure to comply with ACAS procedures. The claimant’s grievance did not relate to the two acts of discrimination which both occurred after the grievance was submitted. There was no later written grievance covering the two acts of discrimination and for s.207(a) to be engaged, a grievance must be in writing.

[60]For the avoidance of doubt, if the tribunal did have the power to award an uplift under s207(a), the Tribunal would find that because the grievance pre dated the two acts of discrimination it would not be just and equitable to award an uplift under TULRA.

[61]The tribunal, having provided the parties with its decisions and reasoning, invited the parties to calculate the consequent loss of earnings and pension, and interest on all heads of loss. The tribunal noted that the claimant was unrepresented and unwell. The respondent, however, was represented by counsel and the tribunal advised the claimant that counsel are officers of the court and subject to professional duties. The parties agreed that the respondent would calculate the loss consequent on the tribunal’s findings of fact. It would provide these calculations to the claimant for her comments. The calculations and comments would be provided to the tribunal and, if the tribunal were satisfied, the tribunal would enter judgment in this sum.