Employment Judge PorterIn person for claimantDate 13 July 2018
REASONS
[1]Written reasons are provided pursuant to the written request of the claimant by e-mail dated 11 December 2017.[2]This is a remedy hearing following the reserved decision on the substantive merits of the claim. Written reasons for our original decision were sent to the parties on 5 January 2017 (“the written reasons”). The claimant claims compensation as set out in a Schedule of Loss, which sets out, in part, the claimant’s assertions in the claim for compensation, which we have considered with care.[3]The claimant claims:- Case Number: 2405125/15 23.1 loss of earnings from 21 October 2014 to the hearing date;3.2 compensation for injury to feelings;3.3 compensation for injury to health;3.4 aggravated damages;3.5 interest Submissions[4]The claimant made a number of oral submissions which the tribunal has considered with care but does not rehearse in full here. In essence it was asserted that:-4.1 the delay in the grievance procedure had a significant impact on her health, extending well beyond the time when the outcome of the grievance was known;4.2 The claimant has had suicidal thoughts and has torn her hair out and banged her head against the floor with frustration. The claimant became housebound, isolated. She does not believe that she will ever again work as a dental nurse;4.3 the delay in the tribunal proceedings has caused additional stress. That delay was caused by the respondent, which has acted in a high-handed manner and aggravated damages should be awarded;4.4 the claimant needs further treatment but is unable to have that treatment until the case is closed;4.5 the claimant’s mental breakdown in February 2016 was caused by the respondent's discriminatory act;4.6 the claimant suffered panic attacks at her other places of work causing her to lose income;4.7 the claimant lost earnings from the date of suspension to the remedy hearing and is entitled to compensation for that loss;4.8 there should be an uplift in compensation by reason of the respondent’s failure to follow the ACAS Code relating to the grievance; Case Number: 2405125/15 3[5]Consultant for the respondent made a number of detailed written and oral submissions which the Tribunal has considered with care but does not rehearse in full here. In essence it was asserted, in addition to the written submissions, that:-5.1 the respondent is blameless. It accepts responsibility for the actions of Bridgewater up to the date of the TUPE transfer. The respondent offered the claimant work but she did not want to return the work with her former work colleagues who had made the complaints against her;5.2 the claimant has pursued no claim against the respondent for its actions , she pursued no grievance against the respondent after the TUPE transfer;5.3 the delay in handling the grievance was caused by Bridgewater seeking medical advice and there was a delay in the claimant providing relevant information;5.4 the claimant’s medical condition is long standing and complex. There is no satisfactory evidence that the extent of the claimant’s deterioration in health was caused by the delay in the grievance. It is clear that the claimant was affected by many matters for which the respondent is not liable - the nature of the complaints made against her, her suspension from work, the outcome of the grievance, her personal circumstances such as her problems with neighbours;5.5 the award of compensation for injury to feelings should fall in the lower Vento band or at the lowest level of the middle band;5.6 it is not appropriate to make any award for aggravated damages. The claimant has suffered normal litigation anxiety. Any complaint that the respondent failed to comply with Orders of the tribunal should be considered as part of any costs application;
Evidence
[6]The claimant gave evidence. She called no witnesses. The respondent called no evidence.[8]The claimant provided her evidence from a written witness statement. She was subject to cross-examination, and given the opportunity for re-examination. Case Number: 2405125/15 4[9]Reference was made to the bundle of documents prepared for the hearing on the substantive merits of the case. In addition the claimant provided further documentary evidence as exhibits to her witness statement. References to page numbers in these Reasons are references to the page numbers in the Bundle of documents prepared for the earlier substantive hearing. Additional Findings of Fact[10]The tribunal has considered its findings of fact as set out in the written reasons. Having considered all the evidence the tribunal has made the following additional findings of fact. Where a conflict of evidence arose the tribunal has resolved the same, on the balance of probabilities, in accordance with the following findings.[11]The claimant was upset by the delay in the handling of her informal and formal grievances from October 2014 until the outcome was declared. The delay led to an increase in symptoms of low mood and anxiety, poor sleep, anxiety, fearfulness tearfulness and poor appetite, for which the claimant sought medical assistance. [On this the tribunal accepts the evidence of the claimant, as supported by the medical and other documentary evidence. Although the claimant has a history of anxiety and depression, and there were other stress factors at the time -- for example, reference to problems with neighbours and loss of her income from Bridgwater - it is clear that the claimant did experience an increase in symptoms of low mood and anxiety because of the delay in the handling of the grievance. That is expressly referred to in both the medical evidence and in the claimant’s contemporaneous diary entries. It is a reasonable inference that the increase in upset and anxiety caused by the delay in receiving the grievance outcome ended when that outcome was received by the claimant. There is no satisfactory medical evidence to support the claimant’s assertion that her feelings of stress anxiety and low mood arising from the delay in the grievance extended beyond the date she was notified of the outcome of the grievance. Her evidence on that point is not accepted.]
Evidence
[12]There is no satisfactory evidence to support the claimant’s assertion that her inability to work after her suspension from Bridgewater, her mental breakdown in February 2016, her decision not to work as a dental nurse again, was caused by the delay in the grievance. The claimant’s evidence on this is inconsistent. As stated above, it is clear that the delay in the grievance did have an adverse effect on the claimant’s health. It caused her anxiety and stress. However, it is clear that the claimant was extremely upset by, and her feelings of anxiety and stress increased because of, other matters including, in particular: Case Number: 2405125/15 512.1 the complaints made against her by her former work colleagues, in particular by Rachel Manning;12.2 Debbie Greenall’s decision to refuse to offer the claimant further work;12.3 Ms Helen Adams’ decision that the claimant’s grievance was not well-founded;12.4 The outcome of the formal grievance in June 2015. The medical evidence also indicates that some of the health problems suffered by the claimant related to her medical treatment and long standing medical problems.
The Law
[13]The claimant has worked as a self employed dental nurse, at several different practices for a number of years. Bridgewater was one of those practices. When she was suspended from work by Bridgwater the claimant continued to work on a self-employed basis for different dental practices. There is no satisfactory evidence to support the claimant's assertion that the delay in her grievance, the discriminatory act, caused a loss of earnings from the other dental practices.[14]A preliminary hearing was held before EJ Porter on 26 January 2017 following the reserved judgment of the tribunal, sent to the parties on 5 January 2017. The purpose of the hearing was to progress the claim to a remedy hearing following the reserved judgment.[15]Orders were made at that preliminary hearing including the following: o The claimant shall by no later than 23 March 2017 send to the respondent’s representative copies of the medical reports and evidence upon which she intends to rely at the remedy hearing. o The respondent shall by no later than 6 April 2017 confirm to the claimant if it requires its own medical expert’s report. o The claimant consents to a medical examination by, and disclosure of her medical records to, the respondent’s nominated expert. The costs of that medical examination will be borne by the respondent, who will send a copy of any such medical report to the claimant within 14 days of receipt and by no later than 1 June 2017. o The Remedy Hearing shall take place at Manchester Employment tribunal, Alexandra House, 14-22, The Parsonage, Manchester M3 2JA on 5 July 2017 commencing at 9.45 am for 10.00am or as soon Case Number: 2405125/15 6 thereafter as the case can be heard. Neither party is required to attend that hearing.[16]By letter dated 16 March 2017 the tribunal was notified that the claimant had instructed solicitors, who sought a variation of the timetable for the Orders made at the hearing on 26 January 2017 and a consequent postponement of the remedy hearing. The respondent agreed to the requested variation and postponement.[17]As a consequence the Orders were varied to read: ▪ The claimant shall by no later than 28 April 2017 send to the respondent’s representative copies of the medical reports and evidence upon which she intends to rely at the remedy hearing. ▪ The respondent shall by no later than 12 May 2017 confirm to the claimant if it requires its own medical expert’s report. ▪ The claimant consents to a medical examination by, and disclosure of her medical records to, the respondent’s nominated expert. The costs of that medical examination will be borne by the respondent, who will send a copy of any such medical report to the claimant within 14 days of receipt and by no later than 30 June 2017.[18]The Remedy hearing was relisted for 9 August 2017.[19]By letter dated 17 May 2017 the claimant’s solicitor notified the tribunal that the respondent had failed to comply with the Order set out in the paragraph 2 above. The respondent’s representative advised the tribunal that it did wish to progress with instruction of its own medical expert. No explanation was given for the failure to comply with the Order. It was simply stated “We apologise for the delay in replying as the case handler has been out of the office.”[20]The remedy hearing was postponed pending the report from the medical expert to be instructed on behalf of the respondent. The hearing on 9 August 2017 was converted to a private preliminary hearing to consider orders for medical evidence.[21]At that preliminary hearing on 9 August 2017 it was noted that:21.1 The respondent has not yet arranged for an appointment with a medical expert, has not yet notified the claimant of the identity of that expert.21.2 Further Orders were made to progress the respondent’s request for a medical report by its nominated expert. Case Number: 2405125/15 721.3 The remedy hearing has been delayed by the actions of the respondent. It is not in the interest of justice that the remedy hearing be delayed further. Whereas Employment Judge Porter understands that the claimant is upset by the delay, and wishes to ensure that the respondent complies with any new Orders, EJ Porter does not agree that it is appropriate that an Unless Order be made. In essence, the respondent has one final chance to obtain its own medical evidence. If it fails to do so, fails to comply with the orders of this tribunal, then the remedy hearing shall proceed on the basis of the medical evidence provided by the claimant.[22]Orders were made as follows: 1. The respondent shall by no later than 23 August 2017 send to the claimant:1.1 The name and address of its nominated expert;1.2 The date and time of an appointment with that expert;1.3 A Consent form for signature by the claimant whereby the claimant will give consent to the disclosure of her medical records to that nominated expert. 2. The claimant shall by no later than 30 August 2017 send the consent form, duly signed, back to the respondent’s representative. 3. The claimant consents to a medical examination by, and disclosure of her medical records to, the respondent’s nominated expert. The costs of that medical examination will be borne by the respondent, who will send a copy of any such medical report to the claimant within 14 days of receipt and by no later than 31 October 2017. 4. Evidence shall be adduced in the form of witness statements which shall be prepared and exchanged (not necessarily simultaneously) between the parties no later than 14 November 2017. These statements are to be prepared on the basis that they contain the full and complete evidence in chief of the witness. All witness statements shall contain numbered paragraphs. 5. The remedy hearing shall be listed on a date to be fixed, the first convenient date after 28 November 2017, estimated length of hearing 2 days, commencing each day at 2pm.[23]The Orders were sent to the parties on 22 August 2017.[24]The Remedy hearing was relisted on 4 and 5 December 2017.[25]The respondent failed to comply with the Orders, failed to respond to correspondence from the tribunal about that failure. Case Number: 2405125/15 8[26]The claimant was upset by the delay in the remedy hearing. Her feelings of anxiety and stress were heightened by the delay and the respondent’s failure to comply with Orders of the tribunal. The respondent was fully aware of the effect of the delay on the claimant. [On this the tribunal accepts the evidence of the claimant and notes in particular that at the preliminary hearing on 9 August 2017 it was noted that the claimant discussed how upset she was by the delay in the remedy hearing.][27]The continuing conduct of these proceedings has an adverse effect on the claimant’s health, her feelings of stress and anxiety continue as she awaits the outcome of this claim. [On this the tribunal accepts the evidence of the claimant, as supported by the medical and documentary evidence.][28]In or around February 2016 the claimant suffered a significant deterioration in her mental health, which she describes as a mental breakdown. No satisfactory evidence has been provided to establish a causal link between that significant deterioration in mental health and the discriminatory act.[29]By letter dated 1 March 2017 Dr J Johnson, consultant psychiatrist reports: X was rather upset and tearful from the start of the consultation and seemed frustrated that although she has seen a number of professionals from mental health over the last couple of years there were differing opinions on her psychiatric diagnosis and essentially she has been unable to move on in life…. X stated that her mental health deteriorated significantly since being taken off antidepressants.. There is a history of significant mood changes with evident depressive symptoms with high levels of comorbid anxiety… A further and quite significant stressor is the on-going legal proceedings in connection with her employment as a dental nurse and employment being terminated in what she firmly believes as an unfair dismissal. This has no doubt had a significant adverse impact on her self-confidence.[30]The claimant has been assessed for further treatment by Shireen Gaur, Clinical Psychologist. By letter dated 12 September 2017 Shireen Gaur indicated that she would place the claimant’s name on a waiting list for further treatment. There is no satisfactory evidence to support the assertion that any such future treatment has been delayed pending the determination of this claim. Case Number: 2405125/15 9[31]The conduct of this claim is a significant stressor for the claimant, whose return to good health is in part dependent upon the closing of these proceedings. [On this the tribunal accepts the evidence of the claimant as supported by the medical evidence.]
The Law
[32]The amount of compensation in cases of discrimination should be calculated in the same way as damages in tort. Ministry of Defence -v- Cannock & Others [1994] ICR 918. A Tribunal should determine what loss, financial and non-financial, has been caused by the discrimination in question. The EAT stated ‘as best as money can do it, the applicant must be put into the position she [or he] would have been in but for the unlawful conduct'. The tribunal must ascertain the position that the claimant would have been in had the discrimination not occurred. Tribunals can award full compensation for the loss suffered. See Ministry of Defence -v- Hunt & Others [1996] ICR 554: there is no upper limit on awards.[33]In Wardle –v- Credit Agricole Corporate and Investment Bank 2011 IRLR 604 the Court of Appeal held that it will be a rare case where it is appropriate for a Court to assess compensation over a career life time, but that is not because the exercise is in principle too speculative. If an employee suffers career loss it is incumbent on the Tribunal to do its best to calculate the loss albeit that there is a considerable degree of speculation. It cannot lie in the mouth of the employer to contend that because the exercise is speculative the employee should be left with smaller compensation than the loss he actually suffers. The job of the Courts is to compensate for loss actually suffered[34]In relation to an award of compensation for injury to feelings, the onus is on the applicant to establish the nature and extent of the injury to feelings. The amount of the award under this head should be made taking into account the degree of hurt, distress and humiliation caused to the complainant by the discrimination. We have considered the case of Armitage Marsden & HM Prison Service -v- Johnson (1997) ICR 275 and in calculating the award for injury to feelings in this case have applied the principles as set out therein which we summarise as follows:- ▪ Awards for injury to feelings are compensatory not punitive. ▪ Awards should not be too low, as that would diminish respect for the policy of anti-discrimination legislation. Nor should they be so excessive as to be viewed as "untaxed riches". Case Number: 2405125/15 10 ▪ Awards should be broadly similar to the whole range of awards in personal injury cases. ▪ Tribunals should remind themselves of the value in every day life of the sum they have in mind. ▪ Tribunals should bear in mind the need for public respect for the level of awards made.[35]In Alexander -v- The Home Office [1998] IRLR 190 CA the Court of Appeal said that the level of injury to feelings awards should not be minimal, because this would tend to trivialise or diminish respect for the public policy to which the (Race Relations) Act gives the effect. On the other hand awards should not be excessive because this does almost as much harm to the same policy.[36]Compensation for injury to feelings may include an added element of aggravated damages where the respondent has behaved in a high-handed, malicious or oppressive manner in committing the discriminatory act. Alexander -v- The Home Office (supra). Aggravated damages are available to applicants for the statutory tort of sex discrimination. The tort may be sufficiently intentional as to enable the applicant to rely upon malice or the respondent's manner of committing the tort or other conduct as aggravating the injury to feelings. Features of mitigation, including the proffering of an apology, should be taken into account in assessing the level of aggravated damages. Armitage, Marsden & HM Prison Service -v- Johnson (supra).[37]We have considered the decision and guidance given by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police (No.2) [2003] IRLR 102 in which the Court of Appeal confirmed that in carrying out an assessment of compensation tribunals should have in mind the summary of the general principles on compensation for no-pecuniary loss by Smith J in Armitage v Johnson (above). The Court of Appeal observed: Three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury, can be identified: ▪ The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the grounds of sex or race. Only in the most exceptional cases should an award of compensation for injury to feelings exceed £25,000. ▪ The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band. Case Number: 2405125/15 11 ▪ Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings.[38]There is within each band considerable flexibility allowing Tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case. Regard should also be had to the overall magnitude of the sum total of the awards of compensation for non-pecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damage. In particular double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage. The extent of overlap will depend on the facts of each particular case.[39]We note the formal revision of these bands in the case of Da’Bell v NSPCC 2010 IRLR 19 , giving £6000 as the top of the lower band, £18,000 as the top of the middle band, and £30,000 as the top of the upper band.[40]In Olayemi v Athena Medical Centre and anor the EAT followed the decision in Beckford v London Borough of Southwark 2016 IRLR 178, EAT and confirmed that the general uplift in general damages in all civil claims for pain and suffering, loss of amenity, physical inconvenience and discomfort, social discredit, mental distress (as determined in Simmons v Castle [2013] 1 WLR 1239) – apply to claims in the Employment Tribunal for personal injury or injury to feelings.[41]Presidential guidance has been given in relation to an increase in the Vento bands for claims presented after 11 September 2017. The increased Vento bands shall be as follows: ▪ a lower band of £800 to £8,400; ▪ a middle band of £8,400 to £25,200; ▪ an upper band of £25,200 to £42,000; ▪ with the most exceptional cases capable of exceeding £42,000. 41. Section 207A (2) of the Trade Union and Labour Relations (Consolidation) Act 1992 provides: If, in any proceedings to which this section applies, it appears to the Employment Tribunal that:- Case Number: 2405125/15 12 i. the claim to which the proceedings relate concerns the matter to which a relevant Code of Practice applies; ii. the employer has failed to comply with that Code in relation to that matter; iii. the failure was unreasonable. The Employment Tribunal may, if it considers it just and equitable in all the circumstances to do so, increase any award it makes to the employee by no more than 25%.[42]Interest may be awarded under the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. Interest is calculated as simple interest accruing from day to day. The current interest rate is 8%. Interest is awarded in injury to feelings awards from the date of the act of discrimination complained of until the date on which the tribunal calculates the compensation.[43]The tribunal has jurisdiction to make an award of compensation for personal injury caused by any discriminatory act under Equality Act 2010. In awarding compensation for psychiatric or similar personal injury the tribunal should have regard to the Judicial studies Board Guidelines for the Assessment of General Damages in Personal Injury cases.[44].The tribunal has considered the authorities referred to in submissions. Determination of the Issues (This includes, where appropriate, any additional findings of fact not expressly contained within our findings above but made in the same manner after considering all the evidence)[45]The claimant is entitled to compensation for loss arising from the discriminatory acts of Bridgewater for which the respondent is liable.[46]The respondent is liable for one discriminatory act, as set out in the written Reasons, namely the failure to make reasonable adjustments, the failure to deal with the claimant’s grievance more quickly, up to the date of the TUPE transfer.[47]The tribunal has considered all the evidence and its findings to determine what loss arose from the discriminatory act. The claimant is not entitled to compensation for losses which did not flow from the discriminatory act. Injury to feelings Case Number: 2405125/15 13[48]The tribunal refers to its findings at paragraph 169 of the written Reasons. There was an unreasonable delay in relation to the handling of the informal grievance, which was submitted in October 2014. The claimant was entitled to an outcome within seven days. She received the outcome by letter dated 17 December 2014. The claimant presented her formal grievance by letter dated 21 December 2014. An investigator was not appointed until March 2015. By the time of the TUPE transfer on 1 April 2015 the claimant had not received an outcome. The claimant received the outcome of her formal grievance in June 2015 (see paragraphs 101-102 of the written reasons)[49]The claimant was upset by the delay in the grievance proceedings, which led to an increase in symptoms of low mood and anxiety, poor sleep, anxiety, fearfulness, tearfulness and poor appetite.[50]The claimant discussed her increased anxiety with health professionals at the time. The tribunal refers in particular to the medical evidence referred to in paragraphs 111, 113, 114-118 of the written Reasons. There is clear medical evidence to support the claimant's assertion that the delay in the grievance procedure increased her anxiety, that the delay in the grievance was a trigger factor for an episode of low mood and anxiety, which led to the claimant referring herself to the Mental Health team in March 2015.[51]However, there is no satisfactory evidence to support the assertion that the claimant’s inability to work for a lengthy period between her suspension of work and this hearing, her mental breakdown in February 2016, her decision not to work as a dental nurse again, was caused by the delay in the grievance. The claimant’s evidence on this is inconsistent. As stated above, it is clear that the delay in the grievance did have an adverse effect on the claimant’s health. It caused her anxiety and stress. However, it is clear that the claimant was extremely upset by, and her feelings of anxiety and stress increased because of, many other factors as set out at paragraph 12 above. The medical evidence also indicates that some of the health problems suffered by the claimant related to her medical treatment and long standing medical problems.[52]The tribunal has considered whether the injury to feelings falls within the Lower or Middle Vento bands. The tribunal has considered all the circumstances including in particular the following:52.1 the claimant was adversely affected by waiting for the outcome of her grievance. Her increased feelings of anxiety and low mood took place until she was aware of the outcome of the grievance. There is no satisfactory medical evidence to support the claimant’s assertion that her feelings of stress anxiety and low mood arising from Case Number: 2405125/15 14 the delay in the grievance extended beyond her knowing the outcome of the grievance;52.2 The period of the delay for which the respondent is responsible is a period of 5 to 6 months between October 2014 and April 2015;52.3 the act of discrimination is not an isolated or one off occurrence;52.4 the effect on the claimant was quite severe. She suffered an increase in anxiety and low mood for which she sought medical assistance. The delay in the grievance was a trigger point for a self referral to the Mental Health team in March 2015 (see paragraphs 114 and 115 of the written reasons);52.5 No satisfactory evidence has been provided to establish a causal link between the significant deterioration in the mental health of the claimant in February 2016 and the discriminatory act. It is noted that the claimant received the outcome of her formal grievance in June 2015 (see paragraphs 101-102 of the written reasons). In all the circumstances the tribunal finds that this case falls within the middle band of the Vento guidelines. The tribunal does not agree that an award should be made at the lower end of that band. The tribunal assesses and awards compensation in the sum of £11,000.00. Aggravated damages[53]The respondent has known from an early stage that the claimant’s health, her feelings of anxiety, are adversely affected by delay. There are clear findings to that effect in the written reasons. The documentary evidence is clear.[54]The respondent has not provided any satisfactory explanation for, in the conduct of this case, seeking orders for medical evidence, with consequent delays to the remedy hearing, when no such medical evidence was in fact obtained by the respondent. The respondent was responsible for the postponement of the hearing on 9 August 2017 because it persisted with its request to medical evidence -- medical evidence that was never a obtained.[55]In these circumstances the further delay to this remedy hearing, a delay caused by the respondent without satisfactory explanation, has led to Case Number: 2405125/15 15 increased feelings of anxiety on behalf the claimant. There is clear evidence that the claimant's return to good health is in part dependent upon the closing of these proceedings. An increase to the claimant’s injury to feelings, her feelings of stress and anxiety, has been caused by the respondent’s wholly inappropriate and unreasonable conduct of these proceedings.[56]It is appropriate to make a further award of £6,000.00 by way of aggravated damages, to compensate the claimant for the increased feelings of stress and anxiety caused by the respondent’s wholly inappropriate and unreasonable conduct. The tribunal rejects the respondent’s assertion that the appropriate remedy is an award of costs or preparation time order. The claimant may wish to pursue an application for costs and/or preparation time order as a separate application at the conclusion of these proceedings. Personal Injury[57]There is no satisfactory evidence that the claimant has suffered any additional injury to health, other than the increased stress and anxiety, which has been compensated for in the award for injury to feelings. There is no satisfactory evidence to support the claimant's assertion that:57.1 her mental breakdown in February 2016 was caused by the respondent's discriminatory act, its failure to make reasonable adjustments, the delay in the grievance; and/or57.2 the claimant suffered panic attacks in her other work places, thereby causing her to lose income, because of the respondent’s discriminatory act, the delay in the grievance procedure.[58]The claimant was concerned about, her feelings of stress and anxiety were increased by, the outcome of her grievance and the statements made by her former work colleagues as part of grievance. The outcome of the grievance, the conduct of the grievance, and the statements made by her work colleagues as part of that grievance, are not discriminatory acts. The claimant is not entitled to compensation for injury to feelings and/or health caused by non-discriminatory acts. The tribunal has compensated the claimant for injury to feelings caused only by the delay in the grievance process. That injury to feelings award includes compensation for increased stress and anxiety. In all circumstances it is not appropriate to make any further award of compensation for personal injury. The claimant is adequately compensated in the award for injury to feelings and aggravated damages. Case Number: 2405125/15 16 Loss of earnings[59]There is no satisfactory evidence to support the assertion that any loss of earnings was caused by the discriminatory act. The claimant makes a claim for loss of earnings arising, in part, from her suspension from work and the decision that she would no longer be offered any shifts by Bridgewater. The suspension and decision that the claimant would no longer be offered any shifts are not discriminatory acts. The claimant also raises a claim for loss of earnings arising from the claimant’s inability to work by reason of her ill health. The claimant was not fit to attend work for a considerable period of time in between the suspension from work by Bridgewater and the remedy hearing. However, there is no satisfactory evidence to support the assertion that the claimant’s inability to work arose because of the discriminatory act. There were many other factors affecting the claimant’s health. The claimant’s evidence on the cause of her inability to work has been unsatisfactory and inconsistent. It is noted that the claimant did continue to work as a self employed dental nurse after she was suspended from work by Bridgewater, while she was awaiting the outcome of her grievance There is no satisfactory evidence to support the claimant's assertion that she suffered panic attacks in her other work places, thereby causing her to lose income, because of the respondent’s discriminatory act, the delay in the grievance procedure. There is no satisfactory evidence as to the circumstances in which the claimant stopped that work, no satisfactory evidence providing a chain of causation between the discriminatory act and the loss of earnings. Interest[60]The tribunal awards interest on the award of injury to feelings as claimed in the Schedule of Loss for the period 22 October 2014 to the date of the hearing. This is a period of 1140 days at the rate of £2.41 per day. A total of £2,747.40 is awarded. Employment Judge Porter Date: 26 January 2018[1]This guidance note should be read in conjunction with the booklet, ‘The Judgment’ which can be found on our website at www.justice.gov.uk/tribunals/employment/claims/booklets If you do not have access to the internet, paper copies can be obtained by telephoning the tribunal office dealing with the claim.[2]The Employment Tribunals (Interest) Order 1990 provides for interest to be paid on employment tribunal awards (excluding sums representing costs or expenses) if they remain wholly or partly unpaid more than 14 days after the date on which the Tribunal’s judgment is recorded as having been sent to the parties, which is known as “the relevant decision day”.[3]The date from which interest starts to accrue is the day immediately following the relevant decision day and is called “the calculation day”. The dates of both the relevant decision day and the calculation day that apply in your case are recorded on the Notice attached to the judgment. If you have received a judgment and subsequently request reasons (see ‘The Judgment’ booklet) the date of the relevant judgment day will remain unchanged.[4]“Interest” means simple interest accruing from day to day on such part of the sum of money awarded by the tribunal for the time being remaining unpaid. Interest does not accrue on deductions such as Tax and/or National Insurance Contributions that are to be paid to the appropriate authorities. Neither does interest accrue on any sums which the Secretary of State has claimed in a recoupment notice (see ‘The Judgment’ booklet).[5]Where the sum awarded is varied upon a review of the judgment by the Employment Tribunal or upon appeal to the Employment Appeal Tribunal or a higher appellate court, then interest will accrue in the same way (from "the calculation day"), but on the award as varied by the higher court and not on the sum originally awarded by the Tribunal.[6]‘The Judgment’ booklet explains how employment tribunal awards are enforced. The interest element of an award is enforced in the same way. Case No: 2405125/15 EMPLOYMENT TRIBUNALS Claimant: X Respondent: Revive Dental Care Limited Heard at: Manchester On: 4 and 5 December 2017 Before: Employment Judge Porter Mr Q Colborn Mr W K Partington Representation Claimant: In person Respondent: Mr R Chaudry, consultant
Issues to be determined
[7]The tribunal sought clarification from the claimant as to the relevance of those documents to this application for reconsideration.[8]The claimant asserted that: 8.1. the new documents comprise medical evidence relating to the claimant’s health prior to the remedy hearing; 8.2. the documents have only recently become available to the claimant from the mental health team. She could not disclose them at the remedy hearing; 8.3. The new evidence supports the evidence which the tribunal considered at the remedy hearing. It merely adds weight to what has been already considered. The same thing is being said about the claimant’s health by different people; 8.4. The only application is for the tribunal to amend the headings of the award of compensation to show an award for personal injury. No application is made for the tribunal to consider making any additional award of compensation.[9]The issue for determination is whether the tribunal should amend the Judgment on remedy to apportion the award for injury to feelings to include a separate award for compensation for personal injury. Submissions Case Number: 2405125/15 3[10]The claimant made a number of detailed submissions which we have considered with care but do not rehearse in full here. In essence it was asserted that: - 10.1. it is in the interests of justice to amend the headings of the award to indicate that part of the award is compensation for personal injury; 10.2. this will protect the money awarded as compensation for damage to health; 10.3. if the award remains as stated then in four years’ time the claimant will be no better off because the claimant will lose her right to disability benefits; 10.4. if an award of compensation is made for personal injury then the claimant can put that money in a trust and her benefits will not be affected; 10.5. if the award is not amended then the respondent might as well keep their money because the claimant is no better off; 10.6. an amendment to this judgment as requested will not make any difference to the respondent: it still pays the same amount of money.[11]Solicitor for the respondent made a number of detailed submissions which we have considered with care but do not rehearse in full here. In essence, it was asserted that: - 11.1. the written reasons on remedy are very clear. They set out the reason for the award for injury to feelings; 11.2. the new medical evidence has no relevance to the application; 11.3. it is not in the interests of justice to amend the Remedy judgement as requested by the claimant. There is no justification for the amendment. Evidence No evidence was heard
The Law
[13]Rule 70 of the Employment Tribunals Rules of Procedure 2013 states: A Tribunal may, either on its own initiative (which may reflect a request from the Employment Appeal Tribunal) or on the application of a party, reconsider Case Number: 2405125/15 4 any judgment where it is necessary in the interests of justice to do so. On reconsideration, the decision (“the original decision”) may be confirmed, varied or revoked. If it is revoked it may be taken again. Determination of the Application[14]The tribunal has considered all circumstances of the case, the Remedy judgment and the written reasons on remedy, to decide whether it is in the interests of justice to amend the Remedy Judgment as requested.[15]We note in particular paragraphs 49 – 51 and 57 – 58 of the written reasons on remedy[16]One of the key issues for the tribunal at the remedy hearing was whether there was a causative link between the discriminatory act of the respondent and the severe decline in mental health suffered by the claimant. The tribunal made its findings on the basis of the evidence before the panel at the remedy
hearing.
[17]The claimant does not seek to introduce new medical evidence to prove that there was a causal link between the discriminatory act and the severe decline in mental health. The claimant states that the new medical evidence merely corroborates the evidence already seen by the tribunal.[18]The new medical evidence is therefore not relevant to this application for reconsideration. It is not necessary for the tribunal to consider that medical
evidence.
[19]In any event, the claimant does not seek any review of the amount awarded by the tribunal. She merely seeks an amendment of the description given by the tribunal to the total amount awarded. The claimant seeks an apportionment of the amount awarded between injury to feelings and an award of compensation for personal injury on the grounds that it is her belief that: – 19.1. If an award is made for personal injury then this would not affect the amount of benefits she receives from the Department for Work and Pensions; and 19.2. If the award remains as stated in the Remedy Judgment she will lose her rights to disability benefit[20]The written reasons on remedy explain clearly why the award was made. The way in which any monies received by the claimant are subsequently treated by the Department for Work and Pensions is not something that the tribunal is required to take into account when making the decision on remedy. Case Number: 2405125/15 5[21]In all circumstances it is not in the interests of justice to amend the Remedy Judgment as requested.[22]The application for reconsideration of the Remedy judgment in the terms sought by the claimant is refused. Employment Judge Porter Date: 5 June 2018
The Law
[23]Under rule 76(2) a tribunal may also make such an order where a party has been in breach of any order or practice direction or where a hearing has been postponed or adjourned on the application of a party.[24]Rule 76 imposes a two stage test. The tribunal must ask itself whether a party's conduct falls within rule 76 if so, it must then ask itself whether it is appropriate to exercise its discretion to make the award. Case Number: 2405125/15 6[25]The tribunal, in deciding whether to exercise its discretionary power under rule 76 should consider all relevant factors including the following;-• costs in the employment tribunal are still the exception rather than the rule;• the extent to which a party acts under legal advice;• the nature of the claim and the evidence;• the conduct of the parties[26]"Preparation time" means ‘time spent by the receiving party (including by any employees or advisers) in working on the case, except for time spent at the final hearing’ — rule 75(2).[27]A PTO is defined by rule 75(2) as ‘an order that a party… make a payment to another party… in respect of [that other] party’s preparation time while not legally represented’.[28]Rule 79 requires a tribunal to decide the number of hours in respect of which a PTO should be made. This assessment must be based upon:• information provided by the receiving party in respect of his or her preparation time — rule 79(1)(a), and• its own assessment of what is a reasonable and proportionate amount of time for the party to have spent on preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and the documentation required — rule 79(1)(b).[29]Rule 77 of the Tribunal Rules 2013 provides that a party may apply for a costs or preparation time order at any stage, but no later than 28 days after the date on which the judgment finally determining the proceedings was sent to the parties.[30]In McPherson v BNP Paribas (London Branch) 2004 ICR 1398, CA, Lord Justice Mummery stated that the Tribunal Rules do not impose any requirement that the costs must be caused by, or at least be proportionate to, the particular conduct that has been identified as unreasonable. In his view, it is not punitive and impermissible for a tribunal to order costs without confining them to those attributable to that conduct. He observed that the tribunal must have regard to the nature, gravity and effect of the unreasonable conduct as factors relevant to the exercise of the discretion, but that was not the same as requiring the costs-seeking party to prove that specific unreasonable conduct by the other party caused particular costs to be incurred..[31]In D’Silva v NATFHE (now known as University and College Union) EAT 0126/09 the EAT brought clarity to the situation by confirming that it was not, in the light of McPherson, necessary to Case Number: 2405125/15 7 establish a direct causal link between particular examples of unreasonable conduct and the costs incurred. Once a finding of unreasonable conduct is made, the question of costs is then very much within the discretion of the tribunal. Similarly, in Salinas v Bear Stearns International Holdings Inc and anor 2005 ICR 1117, EAT, the EAT held that there was no requirement to identify with any particularity a causal link between the unreasonable conduct and the amount of costs ordered.[32]In Yerrakalva v Barnsley Metropolitan Borough Council 2012 ICR 420 CA Mummery LJ clarified that the main thrust of his judgment In McPherson had been to reject the erroneous submission that, in deciding whether to make a costs order, the employment tribunal had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. It was never his intention to suggest that causation was irrelevant when deciding the amount of costs. Nor was he setting down a requirement that tribunals should dissect a case in detail and compartmentalise the relevant conduct under separate headings, such as ‘nature’, ‘gravity’ and ‘effect’. His Lordship emphasised that the tribunal has a broad discretion and should avoid adopting an over-analytical approach. The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had.[33]The Court of Appeal in Sud v Ealing London Borough Council 2013 ICR D39, CA, held that when making a decision as to costs, an employment tribunal needed to consider whether the party’s conduct of the proceedings was unreasonable and, if so, it was necessary to identify the particular unreasonable conduct, along with its effect. This process did not entail a detailed or minute assessment. Instead the tribunal should adopt a broad brush approach, against the background of all the relevant circumstances.[34]The tribunal has considered and where appropriate applied the authorities referred to in submissions. Determination of the Issues (including, where appropriate, any additional findings of fact not expressly contained within the findings above but made in the same manner after considering all the evidence) Case Number: 2405125/15 8[35]The respondent asserts that the application was made out of time. The tribunal has considered all the circumstances and notes in particular as follows:35.1 Judgment on Remedy with reasons was announced orally at the hearing on 5 December 2017;35.2 The Judgment on remedy was sent to the parties on 11 December 2017. Written reasons were requested and reasons were sent to the parties on 31 January 2018 (“Written reasons on Remedy”);35.3 At the remedy hearing on 4 and 5 December 2017 the claimant indicated that she intended to make an application for costs or a preparation time order;35.4 By email dated 9 December 2017 the claimant confirmed to the tribunal that she wished to make an application for a PTO but did not set out the grounds of that application.[36]In all the circumstances the tribunal finds that the application for a PTO was made on 9 December 2017, within 28 days of the final judgment being announced. The fact that the claimant, a litigant in person, failed to set out the grounds of the application does not nullify the application. The application for a PTO was made in time.[38]Further, and in any event, if the tribunal is wrong on that, under rule 5 Tribunal Rules 2013 the tribunal may extend any time limit under the rules. In deciding whether to exercise its discretion to extend time the tribunal has considered all the circumstances including in particular the following:38.1 The matters listed at paragraph 34 above;38.2 By letter dated 22 December 2017 the tribunal informed the claimant of the need to provide the grounds of her application.38.3 By email dated 1 February 2018 the claimant set out what she stated to be the grounds of her application;38.4 By letter dated 16 February 2018 (see paragraph 19 above) the claimant was advised by the tribunal of the further information needed to progress her application; Case Number: 2405125/15 938.5 By email dated 19 February 2018 the claimant provided the grounds of her application for a PTO against this respondent, in an attached document dated 16 February 2018. In all the circumstances, it is in the interest of justice to extend time to enable the application to proceed. The respondent is not prejudiced by the short delay in making the application together with the grounds of that application. The respondent was put on notice at the Remedy hearing of the potential application and the email dated 9 December 2017 made it clear that the application would be made.[39]The tribunal has jurisdiction to consider the application for a PTO.[40]The tribunal has considered the application for a PTO and has applied the two stage test. The tribunal has considered, firstly, whether the respondent's conduct falls within rule 76 and, secondly, whether it is appropriate to exercise its discretion to make the award. The tribunal has also considered the nature, gravity and effect of the respondent’s conduct on the claimant’s preparation for the hearing. The tribunal notes in particular that:40.1 costs in the employment tribunal are still the exception rather than the rule;40.2 in the normal course each party will make its own preparations for any hearing and bear the costs of those preparations;40.3 the key question in this case is whether or not the conduct of the respondent has increased the normal preparation time for any hearing and whether it is appropriate that the respondent pay to the claimant the cost of the increased preparation time.[41]We note the findings in the Written Reasons on Remedy in relation to the respondent’s conduct which led to an award of aggravated damages (paragraphs 53 - 56). The respondent did act unreasonably in this regard. It failed to comply with orders on time, failed to comply with some Orders at all. The remedy hearing was delayed to enable the respondent to obtain its own medical evidence; medical evidence it never got.[42]The claimant has failed to provide satisfactory evidence to support her assertion that additional preparation time was required because of the respondent’s unreasonable conduct in this regard. The failure to comply with orders, the delay arising from that failure, and the postponement of the Remedy hearing (see paragraphs 15 – 23 of the Case Number: 2405125/15 10 Written reasons on Remedy) arose when the claimant was legally represented. The claimant was legally represented from March 2017 to the start of the Remedies hearing. There is no satisfactory evidence that the claimant spent any more time in the preparation for the case than she would have spent if the remedy hearing had taken its normal course, had the respondent complied with the Orders, had the hearing not been postponed. The claimant makes a number of assertions as to the stress and anxiety which the unreasonable conduct and/or delay caused her. That is not relevant to the application for a PTO. The claimant was compensated for the increased stress and anxiety in the award of compensation and, in particular, in the award for aggravated damages.[43]In exercising its discretion the tribunal finds that it is not appropriate, it is not in the interest of justice, to award a PTO in relation to the respondent’s unreasonable conduct as referred to at paragraph 40 above.[44]It is clear that the respondent also failed to comply, either at all or in time, with a number of Orders throughout the conduct of these proceedings. We refer to our findings on the substantive merits of the claim and, in particular, to paragraphs 3 – 12 of the Reserved Judgment.[45]The claimant has failed to provide satisfactory evidence to support her assertion that additional preparation time was required because of the respondent’s failure to comply with orders either at all or in a timely manner. We refer in particular to the respondent ‘s failure to comply with the orders for provision of a bundle and witness statements for the hearing on the substantive merits of the claim in November 2016. There was no additional preparation time arising from those matters. The tribunal dealt with the respondent’s failures on the day of the hearing. No additional preparation was required from the claimant.[46]The claimant has spent considerable time and effort in the preparation of the bundles, obtaining evidence and preparing for the hearings. It is clear that there was disagreement between the parties as to the contents of the agreed bundle and this led to a delay in the preparation of the bundles, the claimant preparing her own bundle of documents, with consequent delay in the preparation and service of witness statements. However, there is no satisfactory evidence before the tribunal to support a finding that the respondent was wholly or mainly responsible for the disagreement as to the contents of the bundle, for the consequent delay and any additional preparation arising therefrom. To the contrary, the evidence before the tribunal is consistent with our finding that both parties made their own contribution to the Case Number: 2405125/15 11 disagreement relating to the bundle, consequent delays and any additional preparation. Further, and in any even, the claimant has not provided a satisfactory explanation of the effect of any breach and/or delay by the respondent, has not provided a satisfactory explanation of any additional time spent in preparation arising from the respondent’s failures. In all the circumstances, in exercising its discretion the tribunal is not satisfied that it is in the interest of justice to depart from the normal principle that each party pay their own costs. It is not in the interest of justice to make a PTO against the respondent in relation to the conduct identified at paragraph 44 above.[47]The respondent did not act unreasonably in requesting medical evidence from the claimant to support her assertion that she was a disabled person within the meaning of the Act. The burden is on the claimant to prove that she was a disabled person at the relevant time. The respondent did not employ the claimant at the relevant time. The respondent was reasonable in seeking evidence from the claimant before conceding that the claimant was a disabled person.[48]The claimant now seeks a PTO in relation to the hours she has spent preparing this application. The respondent was entitled to defend the application. It has not acted unreasonably in doing so. It is not appropriate to make any PTO in relation to preparation for this application.[49]Viewed overall, it is not in the interest of justice to grant the requested PTO. It is appropriate that both parties pay their own costs. Employment Judge Porter Date:13 July 2018