Mrs C Carrabyne v The Department for Work and Pensions: 2401990/2016

EMPLOYMENT TRIBUNALS

Case No 2401990/2016

Between

Mrs C CarrabyneClaimant

The Department for Work and PensionsRespondent

Before

Employment Judge Robinson

Mr D Campion (instructed by Counsel) for claimant

Mr S Redpath (instructed by Counsel) for respondent

Date 19 April 2017

JUDGMENT

[1]The claimant's claim for unfair dismissal, breach of section 15 of the Equality Act 2010 and breach of the duty to make reasonable adjustments contrary to section 20 of the 2010 Act all succeed.

[2]The remedy hearing will take place at Liverpool Employment Tribunal at 10.00am for one day on 9 June 2017.

[1]By no later than 28 April 2017 the expert evidence with regard to medical issues of pension matters shall be served by the claimant's solicitors upon the respondent’s solicitors.

[2]A Schedule of Loss with supporting documents shall be served by the claimant upon the respondent by 28 April 2017.

[3]A counter schedule shall be served by the respondent upon the claimant by no later than 12 May 2017.

[4]Any witness statements upon which either party wishes to rely shall be served by no later than 26 May 2017, and those statements must be typed, paragraphed and paginated.

[5]No further order or direction need be made.

REASONS

Conclusions

[1]The Tribunal had to deal with three claims: unfair dismissal, a breach of the duty to make reasonable adjustments and a breach of section 15 of the Equality Act 2010. Findings of Fact The facts of the case are as follows.

[3]The claimant started work with the respondent in July 2012. Her attendance record was not good from March 2013 through to her dismissal on 5 March 2016.

[4]The claimant was given five weeks’ notice in lieu and received also 100% compensation under the Civil Service Compensation Scheme. The claimant was dismissed for capability. The tipping point as far as her dismissal was concerned is that she was absent from work from 4 January to 8 January 2016 with gastric flu. This absence fell within the six month review period following the claimant's final written warning issued on 28 July 2015.

[5]The claimant is a disabled person within the meaning of section 6 of the Equality Act 2010 in that she has a hip problem and also suffers from depression.

[6]The last Occupational Health report was dated 25 January 2015. It was available to the claimant and the decision maker, Mrs Sheree Bennett, at their meeting on 26 January 2016 and confirmed that the claimant had a longstanding history of depression which was well maintained with medication, that she also had daily hip pain which again was “maintained with medication and causes limitation with her mobility”. The claimant, however, remained fit for her normal duties with no adjustments needed to be considered.

[7]The Occupational Health report expressed the outlook for the claimant as follows:- “Her hip and depression conditions are currently well maintained. However, she may remain vulnerable to flare ups of both conditions, in the future, the frequency or severity of which I cannot predict.”

[8]Mrs Bennett accepted that the claimant was disabled for the reasons set out above and she considered the whole history of the claimant's absences. She recognised that the claimant’s last absence due to hip pain was on 29 January 2015 and that save for the initial absence after a hip operation from 2 April to 24 June 2014 and the days during 2014 when the claimant was absent because of hip pain, the claimant had only been absent from work with illnesses not related to her hip problem in 2014 for two days, on 20 and 21 November 2014.

[9]Mrs Bennett also accepted that the claimant had had a steroid injection on 30 January 2015 and was allowed that day’s absence with no penalty. The claimant was issued with a first written warning on 12 February 2015 with a review period which ended on 9 August 2015.

[10]The claimant appealed that decision by way of grievance but it was not upheld.

[11]The claimant then had a further period of sickness absence from 7 April 2015 to 13 July 2015. She did return briefly in June but found she could not cope and returned to sickness absence.

[12]The last absence due to her depression (her disability) was 13 July 2015. Mrs Bennett agreed that that was the case.

[13]The claimant received a final written warning on 28 July 2015 with a review period which ended on 27 January 2016.

[14]Mr Woodward, her line manager, who referred the claimant to Mrs Bennett for a decision, and Mrs Bennett herself both agreed that the claimant's absences were genuine.

[15]The final straw as far as absences were concerned occurred during the review period when the claimant had four days’ absence at the beginning of 2016 from 4 January to 8 January 2016 with gastric flu. Again, the two respondent witnesses accepted that those absences were genuine.

[16]The claimant then returned to work on Monday 11 January 2016 and was not absent again for any reason until eventually she was dismissed. The claimant appealed the decision but the decision to dismiss was upheld.

[17]We did not hear from Mr Searson, the appeal officer, as there was no issue with regard to that matter.

[18]When the claimant was at work she had various reasonable adjustments in place. She had also had in the past a phased return to work.

[19]The provision, criterion or practice (“PCP”) upon which the claimant relied was the application requiring the claimant to maintain a certain level of attendance at work in order not to be subject to the risk of sanction or dismissal.

[20]The claimant worked in a team of 15 people at the Belle Vale Department for Work and Pensions. She was employed as a case manager dealing with Personal Independence Payments. Mr Woodward took over as manager of the claimant on 16 October 2014. He knew something of the claimant's past attendance history but understood that the claimant had specialist workstation equipment, a specialist chair and increased consideration points in relation to the department’s sickness absence trigger points. The claimant had four days’ additional to the standard eight days in a rolling 12 month period with regard to those trigger points. In other words, that equated over a six month period to four days allowed to a non disabled person as an appropriate absence figure. However the disabled claimant had two further days added in line with policy making a total of six days.

The Law

[21]As the claimant's absences were in January 2016, and as they were in the review period, the claimant triggered the absence management policy process because she had four days’ absence not connected to either of her disabilities.

[22]Mr Woodward referred the claimant to a decision maker in January 2016, saying that the claimant's absence record was unsustainable and that there was no evidence of sustained improvement in the claimant's overall absence, especially as she was still within her final written warning review period.

[23]Mrs Bennett’s reasons for dismissing the claimant were based on both the past and the future. It was her considered opinion that the claimant had not shown an improvement in her attendance during the six month review period, and that she was not convinced that a sustained level of attendance could be achieved in the future.

[24]One of the reasonable adjustments that had been put in place was that the claimant did not work on a Wednesday but she was absent on Monday 4, Tuesday 5, Thursday 7 and Friday 8 January 2016.

[25]It was accepted by Mrs Bennett that the claimant had had 64.5 days’ absence which were all related to her hip problem, and 59 days’ absence due to depression, but those long periods of absence were in 2014 and 2015 respectively.

[26]Mrs Bennett accepted also that the claimant was absent in January 2016 through no fault of hers. Picking up a tummy bugs was part of working life and normal living. Mrs Bennett accepted that taking 2014 through to 2016 the claimant had had two days’ absence for period pains and four days’ absence for gastric flu, and the rest of the absences were all related to her disability. Mrs Bennett also accepted that if that had been the sole absences for the claimant she would not have triggered any points under the absence policy. However, as she pointed out, she had to look at the whole picture and take into account not only the non disability absences but all the disability absences as well.

[27]The respondent’s absence management policy acknowledges that employees can experience isolated incidents of absence, one-off illnesses such as a one-off experience of say chicken pox, an illness or condition which is fairly uncommon or unusual, an illness or condition which is fairly common but has a uncommon or unusually extreme impact such as cases requiring hospital treatment and absences following an accident or injury. A manager should also only treat an absence as exceptional based on the facts of the case at the time.

[28]The policy also urges managers to focus on what can be done or might be capable of being done with reasonable help and support from the department in order to help the employee stay in work or return sooner than might otherwise be the case. The policy also states that any decision will be made on a case by case basis and the policy recognises that the manager has a duty to make reasonable adjustments to enable the person to attend work and carry out their role effectively.

[29]Both Mr Woodward and Mrs Bennett accepted that when dealing with first written warnings at attendance meetings the manager must consider all known circumstances and have a possible course of action in mind before the meeting. However, the outcome of the meeting must not be predetermined and that interviews can result in more than one outcome.

[30]A first written warning should not be given where the employee is disabled and the absence is directly related to the disability and it is reasonable to increase the trigger point, or the absence is directly caused by an operation or treatment which could help to improve attendance or prevent sickness absence. The manager must also take into account the exceptional nature and circumstances of the absence, the employee’s satisfactory attendance record and having done that should not issue a first written warning if it would be perverse, unfair or disproportionate to give that warning.

[31]Similarly, at the final written warning stage a manager should consider all the issues that he or she is asked to consider at the first warning stage, including considering what reasonable adjustments may be necessary.

[32]When it comes to the decision maker making a decision with regard to whether the employee is to be dismissed or some other sanction placed upon them the following applies: “A decision to dismiss should not be taken lightly or as anything other than a last resort. In coming to their decision, the decision maker must consider the following:-(1) Whether everything reasonable has been done to support the employee back to work;

(2) Whether there is a reasonable expectation of improved and sustained attendance to a satisfactory level;

(3) Any mitigating circumstances;

(4) The nature of any underlying medical condition or disability and any reasonable adjustments that have been considered, made or not made to the working environment….Where it is viable to do so if a reasonable adjustment can be made with the prospect of removing some or all of the disadvantage it should be put in place as an alternative to dismissal;

(5) Deciding what is a reasonable level of absence to support for a disability is not an exact science and dismissal decisions should not turn on a disabled employee going a day or two over their rigger point;

(6) The employee’s length of service and previous attendance record.”

[33]The respondent gave some evidence with regard to the effect of the claimant's absence on the office where she worked. Mrs Bennett thought the effect of the absence of the claimant from a team of 15 was obvious and she accepted that line managers have a responsibility for making sure that adequate staffing levels were in place to meet the department’s statutory obligations and to provide a good level of service to members of the public. Mr Woodward also considered that high levels of sickness affect the department’s ability to comply with its statutory duties and deliver a quality service to its customers. The purposes of the PIP benefit (which is what the claimant worked on ) is to support customers with disabilities to live as independently as possible. Each day lost due to absence could potentially delay the processing of a minimum of eight claims which would delay this benefit reaching some of the most vulnerable members of society.

[34]Mrs Bennett accepted that if the claimant had not been given a first written warning the four day absence in January 2016 would not have meant that she was sent to a decision maker.

[35]Mrs Bennett also accepted the department could have dealt with a five day absence and accommodated it, and that the main requirement of the employees is to attend 100% of the time because that is what they are paid for. Mrs Bennett had the power to retrospectively increase trigger points or alternatively discount some or all of the disability absences retrospectively. However, she felt that she could not overturn the previous decisions with regard to the claimant. Mrs Bennett asked herself is this individual likely to give a good level of attendance?

[36]The decision Mrs Bennett made was not just made on that four day absence in January 2016 but the whole of the attendance record of the claimant and what may have happened, in Mrs Bennett’s words, “going forward”. She also noted that the absence she was considering at the time was not disability related. Those are the facts. The Law

[38]With regard to the unfair dismissal it is for the respondent to show that they have dismissed for a potentially fair reason under section 98 of the Employment Rights Act 1996. It is accepted by all parties that the respondent has satisfied that burden. The question then is whether the dismissal is fair in all the circumstances of the case, and this depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and shall be determined in accordance with equity and the substantial merits of the case.

[39]With regard to reasonable adjustments, there is a duty imposed upon an employer to make reasonable adjustments. The provision, criterion or practice (“PCP”) has to be identified and that PCP must put a disabled employee, if the employee is to win his or her case, at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, and to take such steps as it is reasonable to have to take to avoid the disadvantage. If there is a failure to comply with that section then an act of discrimination has taken place. There must be a causative link between the PCP and the disadvantage.

[40]Any complaint of discrimination must be brought within three months beginning with the act of discrimination to the Employment Tribunal. It is subject to the Tribunal’s discretion to extend time where it is just and equitable to do so.

[41]With regard to section 15 of the Equality Act 2010 a person discriminates against a disabled person if that person treats the disabled person unfavourably because of something arising in consequence of the disabled person’s disability, and that person cannot show that the treatment is a proportionate means of achieving a legitimate aim. In other words, they cannot justify the treatment.

[42]In dealing with these cases the Tribunal should consider the Code of Practice on Employment 2011. The relevant paragraph as far as this case is concerned is paragraph 4.6 which requires the employer to justify the provision so the burden is upon them. It is a requirement that the employer produce evidence to support their assertion that the treatment is justified. Generalisations will not be sufficient to provide justification. It is not necessary for that justification to have been fully set out at the time that the provision, criterion or practice was applied, however if that issue is challenged the employer can set out the justification to the Employment Tribunal.

[43]According to paragraph 6.23 of the same Code the duty to make adjustments requires employers to take such steps as it is reasonable to have to take in all the circumstances of the case in order to make adjustments. The Act does not specify any particular factors that should be taken into account. What is a reasonable step for an employer to take will depend on the circumstances of each individual case.

[44]Paragraph 6.28 of the Code sets out some of the factors which might be taken into account when deciding what is a reasonable step for an employer to take, and includes such things as the step be effective in preventing the substantial disadvantage, the practicability of the step, the financial and other costs of making the adjustment and the extent of any disruption caused, the extent of the employer’s financial or other resources, the availability to the employer of financial or other assistance to help make an adjustment, and the type and size of the employer. Conclusion

[45]Applying that law to the facts of this case we came to the following conclusion.

[46]We noted that this was a large employer with large resources, being a Government department, and that the managers in this case had resources such as the Human Resources department together with the opportunity to take advice from solicitors at their fingertips.

[47]The two reasonable adjustments contended for in this case by Mr Campion on behalf of the claimant were to either discount the absences or extend the trigger points.

[48]We have already set out the PCP at the head of this judgment, and that PCP did put the claimant at a disadvantage when compared with any non disabled employee. We were not given a specific comparator but we can set up our own hypothetical comparator.

[49]The cost to the respondent to extend the trigger points to discount absences would have been nil. Those reasonable adjustments were available to the respondent and were not put in place.

[50]With regard to section 15, the respondent accepted that the respondent had treated the claimant unfavourably because of something arising in consequence of her disability, and therefore the issue between the parties related to whether the respondent could show that the treatment is a proportionate means of achieving a legitimate aim.

[51]We had precious little information as to the effect the absence of the claimant had upon the department and the team she worked for.

[52]In particular, Mrs Bennett accepted that the four days that she was absent in January 2016 could be dealt with and accommodated by the team she was in. There was no specific evidence that the previous long absences of 64.5 days and 59 days all relating to her disabilities had caused any discomfort to the team. Of course we accepted that any absence of any member of staff can cause some difficulty, but we had no evidence to suggest that her team members were complaining, that there were high levels of stress, that there were complaints from the public or from ministers, or from the department’s more senior managers that the claimant's absence was causing difficulties at the Belle Vale office, other than a general view by both Mr Woodward and in particular Mrs Bennett that it was obvious it would cause difficulties.

[53]Mrs Bennett was concerned that the four days’ absence were not disability related. She accepted, however, that the claimant was on the precipice and therefore would have to accept logically that it only needed a short nudge for her to be pushed over that precipice and lose her job.

[54]However, it was open to Mrs Bennett not to dismiss the claimant. Mrs Bennett told us that she felt that she had to look at the whole of the circumstances of the claimant and the absences in the past. This meant that the claimant's absences relating to both her hip and depression were returned to and reconsidered. That counted against the claimant during the dismissal process. Her non disability absences would not have got her dismissed. They would not even have got her to a first written warning.

[55]The disability absences were a long time in the past. The evidence showed that there were no absences for the claimant relating to her hip after January 2015, and no absence due to her depression after July 2015. The Occupational Health evidence was that both her hip issue and depression were well maintained and looked after, both by the claimant having the operation and by her medication for depression. The proof of the pudding was in the eating. The claimant had not been absent at all for the whole of the review period due to her disability.

[56]It was open to Mrs Bennett to allow the claimant to go one day over her trigger point. If the claimant had been away three days in January 2016 for a non disabled reason she would not have been dismissed. We accept that the claimant must have known that she was putting her employment at risk by being off for those four days, but we heard nothing to suggest that the claimant was languishing at home, indeed the evidence was that both Mr Woodward and Mrs Bennett thought that the claimant’s absence for gastric flu in January 2016 was genuine.

[57]The claimant's attendance therefore had improved radically. Her disabilities at that point were not causing her absences. We accepted that her hip complaint caused her some mobility problems, indeed she walked into the Tribunal with a walking stick, but her hip problem had not caused her to be absent for a year.

[58]The claimant at the time of her dismissal was in work. However galling it must have been for Mrs Bennett and Mr Woodward to find that the claimant was absent again for four days, as they expected 100% attendance from their employees, the fact is that reasonable adjustments could have been put in place at very little expense to the respondent and they would have maintained a fully trained PIP case manager in post.

[59]The burden is upon the respondent to show justification. In these circumstances they have not done so. The balancing act between the loss to the claimant of her job and the inconvenience to the respondent’s other employees weighed in favour of the claimant retaining her job.

[60]Finally, in relation to the Equality Act issues, we could not understand the logic of Mrs Bennett’s claim that the claimant’s history of absences would necessarily mean that in the future she would be absent for long periods of time. The evidence showed quite the opposite that absences in relation to her hip and in relation to depression had disappeared. Applying the respondent’s own policy there was a reasonable expectation that the claimant’s attendance would be sustained and it had already improved dramatically from what it had been.

[61]In those circumstances we found that the respondent was in breach of both section 15 and section 20 of the Equality Act 2010.

[62]Turning now to the unfair dismissal, we found that the respondent is a large organisation with huge resources. Mrs Bennett dismissed for a potentially fair reason, but the respondent is in breach of section 98(4) of the Employment Rights Act 1996 in that it did not act reasonably in treating the circumstances as a sufficient reason for dismissing the employee. More importantly, in determining the case in accordance with equity and the substantial merits of the case, the substantial merits of the case again tipped in favour of the claimant retaining her job and not losing it.

[63]We accept that the sanction of dismissal is one which is open to a dismissing officer and it is a wide band. We also note that we must not substitute our views for the views of the dismissing officer (a slightly different test from whether the actions of the respondent were proportionate), but it was wholly unfair to dismiss the claimant at this point in time when she had clearly made huge strides in relation to her attendance and that more importantly her disability related absences had declined to nil. No reasonable employer would have dismissed.

[64]Any employee can catch a stomach bug and be off for a period of time. That is one of the vicissitudes of life but there was no necessity here to dismiss the claimant and in all the circumstances of the case and looking at the size and resources of the respondent this was also an unfair dismissal.

[65]The matter will now move to remedy on the date at the head of this judgment and we have made directions for the future good conduct of the hearing to that remedy trial. 19-04-17

[1]The issues with regard to remedy related to the amount of compensation due to the claimant. Previously she had succeeded in her claims of unfair dismissal, breach of section 15 of the Equality Act 2010, breach of the duty to make reasonable adjustments contrary to section 20 of the Equality Act 2010.

Findings of Fact

[2]The compensation awarded includes her loss of earnings, injury to feelings which includes an element of personal injury compensation for the psychiatric damage caused by the actions of the respondent, interest and pension loss. Where required we have also grossed up where the sum received by the claimant will be taxed. The Facts

[3]The facts of the case with regard to remedy show that the claimant was happy in her role with the respondent and especially with her colleagues, but was less happy with the way she was ultimately managed. During the course of giving her evidence the claimant clearly demonstrated the stress at her predicament in losing her job. She had to leave the Tribunal room on a number of occasions in tears. The loss of her job has also meant that her mental health has suffered and the relationship with her husband has come to an end, much to her regret. 3. The findings at the liability hearing were that the claimant was disabled from both her hip problem and from depression. The respondent is faced with an individual they have dismissed and placed onto the unemployed registered who is disabled both physically and mentally.

[4]The claimant's husband works for the respondent and when the claimant was in work he was able to drive her into work and home again. Because of the claimant's hip condition she finds it difficult to drive distances and therefore her job search has been limited to the immediate locality. The claimant lives in Liverpool.

[5]The claimant also had in place at the respondent, a number of reasonable adjustments which allowed her to maintain her employment. That need for reasonable adjustments places her at some disadvantage on the labour market in terms of having to renegotiate, potentially, those reasonable adjustments with a new employer. For example, the respondent allowed the claimant to start work at 10.30am and have a certain amount of flexibility in terms of her working hours. She may not be able have that same flexibility with a new employer.

[6]The claimant has looked for jobs after the loss of her employment on 5 March 2016, but since that date a number of issues have curtailed her ability to search. In particular she has suffered from anxiety and depression. She accepts that since her early 20s she has had difficulties with her mental health and is now on a high dose of Sertraline and has been for some time. However the loss of her job has had a deep and profound effect upon her. We accepted the evidence she provided to us in her remedy hearing witness statement. Her account of what she has suffered over the months since she lost her job was believable. There is no necessity to set out all the difficulties the claimant has faced as they are contained in that statement but, for example, she suffered from increased anxiety and stress which manifested itself in her shying away from her social life, refusing to go out with friends and family for drinks, finding it difficult to get up in the morning and staying in bed, she felt worthless, often bursting into tears for no apparent reason and also has intrusive and upsetting thoughts.

[7]The claimant has also had physical difficulties since she lost her job. Although she had not been absent with regard to her hip condition for some considerable time before she was dismissed she realised that eventually she would have had to have hip surgery. In employment with the respondent she could have chosen the moment when she could agree some absence with her employer to have that surgery. When she was in work she was managing her pain because she was busy. Once she was out of work she had more time to think about the pain. She went to her doctor shortly after she was dismissed saying that she wanted to have hip surgery.

[8]Through a series of unfortunate events the claimant found herself during 2016 suffering from anxiety and depression, her hip pain was increasing, she was taking heavy doses of medication which was increased in September 2016, she was having difficulty sleeping, her marriage was breaking up and from 10 March until 1 June 2016 she was not well enough to work and had to claim Employment Support Allowance (ESA) in March 2016,. She had to wait 12 weeks before she had an assessment. She qualified for ESA due to her hip condition in June 2016.

[9]By August 2016 she felt better and more confident and was able then to enjoy, once more, social activities.

[10]During 2016 a number of sick notes were issued to her which confirmed she was not able to work. The operation on her hip took some time to arrange because she was wrongly referred to Aintree Hospital when she should have gone to St Helens Hospital. On 12 September 2017, over 15 months after her original referral, the claimant had the operation.

[11]Not only, therefore, could she have planned her operation better if she had been in work and chosen her moment when to request time off, she would also have been paid her full wage for six months and then three months half pay. Consequently she would have had more financial stability if she had been in work during those 18 months. If still employed she may well have been able to return to work before her full pay ran out. Indeed the opportunity to go back to work during the recovery period would have been a spur to her to return.

[12]Because of the above circumstances the claimant decided that she would have a change in career. She obtained an NCFE Level 2 certificate in counselling from the University Centre, Grimsby, “by distance” learning, through the autumn of 2016 up to February 2017. Because of that further qualification she was able to apply for a degree course with the Open University with a view to being awarded a psychology degree in September 2017.

[13]The three year course costs £5,728 per year. That might increase over the next two years, but the cost of the course will be £17,184.

[14]If she qualifies, the claimant will have the realistic opportunity of becoming a chartered psychologist in 2020. To her credit the claimant has researched her prospects and knows that she will be able to earn somewhere in the region of £26,000 per annum as a psychologist compared with her salary with the respondent at just under £20,000. As the claimant will be looking for jobs in the NHS she will also have the benefit of an NHS Pension Scheme.

[15]The claimant was very positive about this new career and has clearly mapped out her future. Having investigated the role as a psychologist she discovered that starting salaries were in the region of £26,000 rising to £35,000. She also recognised that if she did secure a job with the NHS her employer’s pension contributions would be 14.38% and the employee’s contribution would be 7.1%.

[16]In October 2017, in order to help her manage her finances and recognising that her ESA may come to an end, the claimant decided to sell cosmetics through Avon. She can either do this door to door which would be difficult in view her hip pain when driving, but she can also do it online. She has good computer skills and has already set up her own website from which she will be able to sell products through Facebook and Twitter. She hopes to increase her sales by word of mouth and through contacts on the internet. She suspects that she will average about £300 a month earnings in this regard.

[17]Although the claimant is not divorced from her husband she is separated. The cause of the break up of the relationship was, in part, due to her losing her job and the consequent money difficulties.

[18]The claimant has lost contact with her stepdaughter, who used to stay every weekend when she was living with her husband. That has been a source of distress to her

[19]The claimant’s life has moved on, however, since the dismissal and she has mitigated her loss by putting in place all the matters set out above.

[20]After the judgment in March 2017 on liability, she was offered reinstatement by the respondent but with the caveat that she would have to go through an Occupational Health assessment. That offer was made after the respondent had lost at the liability hearing and just days before the first remedy hearing date. (the remedy has been postponed on a number of occasions). She declined the offer and decided she did not want to return to her previous workplace. Although she was very happy there with her colleagues she felt that she would not be able to trust management in the future. In view of our findings of fact at the liability hearing we can well understand why that is so. We have no criticism of the claimant for refusing reinstatement in those circumstances.

The Law

[21]Section 123(1) of the Employment Rights Act 1996 provides that a compensatory award for unfair dismissal should be such amount which the Tribunal considers just and equitable. There is, however, a statutory cap with regard to such compensation. That does not apply with regard to compensation for discrimination under the provisions of section 124 Equality Act 2010. We ordered compensation to be paid under the auspices of the disability claim because we find the main reason for her dismissal was related to her disability.

[22]Section 124(6) of the Equality Act provides that the amount of compensation which may be awarded corresponds to the amount which could be awarded by the County Court in proceedings in tort.

[23]In practice what that means is that we must endeavour to place the claimant into the position she would have been if the wrong had not taken place.

[24]With regard to injury to feelings, this is an award to compensate for non pecuniary loss and is intended to compensate the claimant for the anger, distress and upset caused by the unlawful treatment she has received. It is compensatory and not punitive. The Tribunal has a broad discretion about what level of award to make consequently we must be just to both parties when making the award.

[25]The award should not be too low so that it would diminish respect in the judicial process regarding compensation, and it should bear some broad similarity to awards in personal injury cases.

[26]With regard to such awards, there are three bands as set out in the case of Vento v The Chief Constable of West Yorkshire Police (No. 2)

[2003] IRLR 102

. Those bands were revisited in Da’Bell v NSPCC

[2010] IRLR 19

. The bands have been uplifted. We have also taken into account the principles set out in Simmons v Castle

[2012] EWCA Civ 1288

in that from 1 April 2013 general damages in tort cases should be increased by 10% on existing levels.

[27]The discrimination award should bear interest with regard to any award of past financial loss, injury to feelings and medical and psychiatric injury. The interest rate now to be applied is 8%. On the injury to feelings award interest is awarded on injury to feelings from the date of the act of discrimination complained of until the date on which the Tribunal calculates the compensation.

[28]With regard to interest on all other sums potentially awardable by the Tribunal, interest is awarded from the mid point of the date of the act of discrimination complained of and the date the Tribunal calculates the award. In this case the date of the act complained of is the dismissal of the claimant on 5 March 2016.

[29]Awards will be grossed up by the Tribunal where the sum received by the claimant will be taxed. The first £30,000 is enjoyed as a tax free lump sum and consequently any award we make over £30,000 should be grossed up in order to avoid disadvantage to the claimant through taxation of the sum payable.

[30]We believe that the injury to feelings award should not be grossed up but only the financial loss suffered as a result of the unlawful discrimination. We recognise the different threads of argument, in this area, between, in broad terms, “tax cases” and Employment cases”.

[31]There are two methods of calculation with regard to pension loss and that depends on the complexity of the case. In the end we decided that this case should be calculated on loss of contributions. It is not a complex case.

[32]We considered Mr Campion’s submissions on behalf of the claimant that we should treat the pension issue as a complex one. But overall we felt that the proper way of dealing with the pension element, even though we are compensating for a considerable period of time into the future (3 years), should be to treat it as a simple case. This is not a career long case in terms of losses, nor potentially are the losses in pension significant if the claimant obtains, as she suggests she will do, a role with the NHS.

[33]Finally with regard to mitigation of loss, we noted that it is a fundamental principle that any claimant will be expected to mitigate his or her loss but that the burden is upon the respondent to prove that the claimant has not mitigated his or her loss.

[34]It is insufficient for a respondent merely to show that the claimant failed to take steps that it was reasonable for them to take. They have to show that such a failure was unreasonable.

[35]In coming to our conclusion we took into account the steps the claimant has taken to mitigate her loss, whether it was unreasonable for the claimant to have failed to take any such steps and the date from which any alternative income could have been obtained.

[36]Applying those principles to the facts of this case we came to the following conclusions.

Conclusions

[37]There are a number of amounts which the claimant has claimed which are agreed by the respondent. We went through the claimant’s Schedule of Loss and the counter schedule at pages 17 to 28 of the bundle and concluded as follows.

[38]The only amount that we do not have is the respondent’s pension contribution per month. As we are awarding pension loss on the basis of loss of contribution that calculation will have to be made by the parties.

[39]However we have set out the principles for the parties. If they wish to come before us again to deal with any of the intricacies of the calculation we will arrange another remedy hearing in Liverpool convenient to all.

[40]Dealing now with the detail of Schedule of Loss we came to the following conclusions. We award the basic award of £1,107.69 which was agreed.

[41]We award the sum of £738.46 for loss of statutory rights.

[42]We did not accept Mr Redpath’s arguments that only a small amount of, say, £200 or £250 should be awarded for that loss. When the claimant goes back into employment she will have to build up her employment protections and we therefore think it appropriate to award her one week’s gross pay payable to her for each year that she will have to build up that future protection Therefore we have multiplied her gross week’s pay by two making the sum of £738.46.

[43]With regard to payment in lieu of notice, we have deducted £1,487.55 (which was the agreed notice pay already paid to the claimant) from the compensatory award. We have not deducted the ESA from the claimant’s award. The parties will have to deal with that themselves as we are not sure when the claimant’s ESA will cease. We accept, however, that the figure of ESA payable per week to 12 March 2016 is £135.95 and the weekly payment after 11 June 2016 is £186.90. Again the calculation can be made by the parties once the claimant confirms that she is now off that benefit.

[44]With regard to the cost of the Open University degree, we order that cost to be paid as an expense to the claimant which she will properly incur over the next few years. We order the respondent to pay £17,184.

Conclusion

[45]We accept that as the claimant took out a student loan she would have to pay that back over a number of years and not immediately. The reasons the claimant decided to change careers were compelling. She has researched her future career in the NHS as a psychologist, mapping out what she intends to do. In those circumstances, and in view of what we say below about the respondent placing the claimant on the unemployed register, we feel that a lump sum due to her so that she can immediately pay for her education is an appropriate award.

[46]We then turned to the compensatory award and decided that we would order the respondent to pay to the claimant both her losses to the date of today’s hearing and future losses for three years until she qualifies as a psychologist giving her a short period to find a job once qualified. We accept the premise set out in the claimant's Schedule of Loss that she should be compensated to 1 December 2020. We also order her pension loss for three years to 1 December 2020 on the basis, as mentioned above, that she should receive 36 months’ contribution calculated on what this employer would have put into the claimant's pension pot over the next three years.

[47]We also order that the claimant's past losses of 91 weeks at £297.51 be paid to her which is a sum of £27,073.41. From that sum we have deducted notice pay of £1,487.55 leaving a net sum due to her in relation to those losses of £25,585.86.

[48]As the claimant has received a Civil service award of £3,036.45, that past loss sum should be further reduced, leaving a net total of £22,549.41. Interest at 8% will be added.

[49]The award for future loss has been calculated from 1 December 2017 to 1 December 2020, a sum of £46,411.56. However, from that sum the claimant has confirmed that she would earn between £100 to £500 per month from selling Avon cosmetics and consequently we have averaged that as a £300 per month earnings over the same period. £10,800 shall be deducted from that sum to give a proper figure for future loss. The figure therefore due to the claimant for future loss is £35,611.56.

[50]If one adds that together with the past loss one gets a figure of £58,160.97.

[51]Add to that the £738.46 for loss of statutory rights, the compensatory award is £58,899.43. If then one takes £30,000 exemption, the amount that requires to be grossed up is £28,160.97 ( for grossing up purposes we have deducted the £738.46 as that will be paid gross in any event). If that first figure is grossed up one gets to a figure of ££35,201.21. If one adds back in the tax free exemption and the sum due for loss of statutory rights the total sum upon which interest is calculated is £65,939.67. The calculation of interest amounts to £4,615.78. The total sum due, therefore, with interest and grossing up added in is £70,555.45 in terms of pecuniary loss.

[52]We then turned to injury to feelings and personal injury. We did not have a medical report relating to the claimant's personal injury. It is not essential to have such a report. We had sufficient evidence from the claimant, tested in cross examination to show that the claimant had suffered much because of the dismissal and the manner in which she was dismissed. The treatment of her by her managers has had a profound effect upon her. We felt we could combine an award of injury to feeling with the personal injury award. The evidence, on balance, showed that the claimant has suffered injury caused by the respondent’s actions in dismissing the claimant for the reasons that they dismissed. We concluded that this matter fell at the higher end of the middle bracket of the Vento bands.

[53]We have taken into account the Presidential Guidance relating to cases after September 2017 and even though these proceedings were issued before that date we have taken into account the recent case law and decided to uplift the award taking into account that guidance.

[54]We have also uplifted the award by 10% in view of the Simmons v Castle decision.

[55]Taking all that into account and considering the facts we find regarding the claimant’s distress we award her the sum of £17,000.

[56]We have not split the award between injury to feeling and an award for personal injury. That would over complicate the issue. The award properly compensates the claimant. We have uplifted that sum by 10% to bring the award into line with other personal injury awards giving a final award of £18,700.

[57]The interest on that will be 91 weeks at 8% which comes to £2,618 which leaves a total award of £21,318 for injury to feelings.

[58]As we could not calculate the pension loss we cannot deal with interest on that figure but the parties should be able to calculate the sum due on the basis that the principle we would use is that the claimant should receive 36 months of contributions to take her to the end of 2020.

[59]To recap, the claimant must receive the expenses of her University degree in the sum of £17,184; a basic award of £1107.69; £70555.45 compensatory award; £21,318 for injury to feelings and 36 months employer pension contributions together with interest thereon.

[60]Those are our reasons and no further order or direction need be made. Employment Judge Robinson 22-12-17

Conclusion

[1]Mr Campion has made this application on behalf of Mrs Carrabyne for reconsideration of our remedy judgment. Mr Redpath also now makes a reconsideration application. There is a fair measure of agreement between Mr Campion and Mr Redpath. We have decided that we will reconsider the award made in the decision promulgated on 4 January 2018 and amend it. Using our discretion, we shall also reconsider the payment to the claimant of her future university fees. Mr Redpath pleads that is a double payment to the claimant. That is his belated application for reconsideration. Mr Campion suggests there is no such application before us. However we felt, to deal with that today, would be the most appropriate way forward for both parties.

[2]On reconsideration, we conclude we were wrong not to gross up the following awards: the basic award, the award for loss of statutory rights, the interest and also the loss of pension payment. All those sums must now be grossed up. We decided to do that that on this basis. (In the words of Lord Justice Henderson) they are all awards connected to the termination of Mrs Carrabyne’s employment in March 2016.

The Facts

[3]That deals with the main part of Mr Campion’s application for reconsideration. Dealing now with Mr Redpath’s application. We agree with Mr Campion’s response to that application, that the university fees should be grossed up too. Our terminology that they were “expenses” was wrong and too loose. That specific amount is again a loss which arises from the claimant's loss of employment. Mr Campion has grossed up those fees in his calculation and we have done so too as set out in the schedule below.

[4]Mr Redpath makes another argument with regard to the university fees which we turn to now. He believes that Mrs Carrabyne should not get that sum in addition to the payment we have awarded for future loss. Having reconsidered the evidence we previously heard, and the findings of fact that we made, we conclude as follows.

[5]Mrs Carrabyne was happy in her work at the Department. We find, and it is clear from our original judgments on liability and remedy, that on balance, if the respondent had not dismissed her, the claimant was more likely than not to have stayed in work with the respondent. We still believe that was a reasonable conclusion to come to because, for example, reasonable adjustments were in place and the Department was supporting her through her medical issues. In our liability judgment we concluded that it was open to Mrs Bennett, the dismissing officer, not to dismiss the claimant. That decision has caused the claimant to be put on the “employment scrapheap”, and for that reason we felt, and still feel, the respondent should pay the appropriate compensation that is just and equitable in all the circumstances.

[6]However, although she was disadvantaged on the labour market (as someone who is disabled) the claimant sought new employment immediately she was sacked. Despite an initial period, of about five months from March to August 2016 when she was clearly distressed about her dismissal and also unwell, by August 2016 things were getting better for the claimant, and she was able to start thinking about what she should do in the future. The path that she ultimately took was to see if she could qualify as a psychologist.

[7]That is to the claimant’s credit. She has not been dilatory whilst seeking to qualify as a psychologist. She has set up her own business, selling cosmetics. We have taken that into account when making deductions for an amount she thought she would earn during the period when she was selling Avon items. We see the cost of her university degree in the same way as someone setting up a new business. The analogy that Mr Campion has given us is an apposite one. By seeking to qualify as a psychologist, which will pay her more than she was being paid with the respondent, she is, not only mitigating her loss, but potentially shortening the period for which this respondent would be liable for future loss to her. We stooped her future loss in December 2020 when it was more likely than not that Mrs Carrabyne would qualify as a psychologist. We may have been persuaded, if she had not started the university degree course, and in view of her medical difficulties, to extend the compensation beyond that date but we did not.

[8]We accept that there must be a deduction of ESA. We had previously left that issue open as explained at paragraph 43 of our Remedy Judgment. We also accept the pension contribution figure that Mr Campion has informed us of. We accept that figure is a correct one and Mr Redpath did not demur.

[9]We adopt the figures set out at page 27 of the reconsideration bundle. In line with the case of Moorthy v HMRC

[2018] EWCA CIV 847

we will not gross up the injury to feeling award.

[10]We accept Mr Campion’s reasonable argument that the department should pay forthwith the monies due to the claimant and that we are about to award on this reconsideration. We can make no order for an interim payment, nor prescribe exactly when the sum should be paid save to say this: that the respondent should pay to this claimant the sum of £108,261.68 forthwith. The department is a Government organisation and should be able to find and pay that money to the claimant within a very short period of time, hopefully within two weeks, so that the ESA deductions that Mr Campion has factored in to his calculations remain legitimate. We urge the respondent, via Mr Redpath, to do that. The department has been in breach of its employment duties to the claimant and she should be recompensed as soon as possible.

[11]The award in total is £104,860.19 with the judgment interest of 8% from 5 January 2018 to 1 June 2018 being an extra £3,401.49 making a total of £108,261.68. SCHEDULE Basic Award £1,107.69 Loss of statutory rights £738.46 Open University fees £17,184.00 Past loss of earnings by Civil Service award £22,549.41 Future loss of earnings £35,611.56 Pension contribution £12,038.40 Total £89,229.52 Less ESA deductions from 12 March 2016 to 10 June 2016 £21,011.55 Total £68,217.97 Add interest thereon £4,615.78 Total £72,833.75 Grossing up Deduct £30,000.00 £42,833.75 Grossing up Add £10,708.44 Total £53,542.19 Add back £30,000.00 Total £83,542.18 Add injury to feelings including interest £21,318.00 Total £104,860.19 Add judgment interest at 8% £3,401.49 Total to be paid to the claimant £108,261.68 The recoupment provisions do not apply. 04-06-18