Mr A Daniel v Mr C Spence and others T/a G E Spence and Son (a partnership): 2500563/2022 and 2500866/2022
EMPLOYMENT TRIBUNALS
Case No 2500563/2022, 2500866/2022
Between
Mr A DanielClaimantMr C Spence and others T/a G E Spence and Son (a partnership)RespondentMr. Fakunle (instructed by Solicitor) for respondentDate 7 August 2023
JUDGMENT
[1]The claimant’s complaint of unfair dismissal is well-founded.[2]The claimant’s complaint of discrimination arising from disability is well-founded.[3]The claimant’s complaint of wrongful dismissal/breach of contract is well-founded.[4]The claimant’s complaint under section 38 of the Employment Act 2020 is well- founded. Remedy shall be determined by means of a separate hearing, details of which will be notified to the parties separately. Case numbers 2500563/2022 and 2500866/2022 EMPLOYMENT TRIBUNALS Claimant: Mra. A. Daniel Respondents: Mr C. Spence, Mrs M. Spence and Mr A. Spence T/A G.E. Spence and Sons ( a partnership) Heard at: Teesside Justice Centre On: 09 and 10 May 2023 Before: Employment Judge T.R. Smith Ms S. Mee Msb. B. Kirby Representation Claimant: Ms Mellor ( The claimant’s sister) Respondent: Mr Fakunle ( Solicitor) Judgement The claimant’s complaint of unfair dismissal is well-founded. The claimant’s complaint of discrimination arising from disability is well- founded. The claimant’s complaint of wrongful dismissal/breach of contract is well- founded. The claimant’s complaint under section 38 of the Employment Act 2020 is well-founded. Written reasons supplied pursuant to a request dated 18 May 2022 Abbreviations ERA 96. The Employment Rights Act 1996. EQA10. The Equality Act 2010. EA 02. The Employment Act 2002. The issues.[1]At the start of the hearing the parties agreed the issues the tribunal had to determine and those it did not.[2]Although the second claim form made reference to the National Minimum Wage, the claimant indicated he would be pursuing that by means of civil proceedings and therefore it was not a matter the tribunal needed to adjudicate upon.[3]Due to the shortness of time ( the case originally having been listed for four days) the tribunal indicated it would deal with the issue of liability only and remedy, if appropriate, on another date. Unfair Dismissal section 95(1) Employment Relations Act 196[4]Was the claimant dismissed by the respondent pursuant to section 95(1)(a) ERA 96 by virtue of being issued with a P45? 4.1.If so, on what date? 4.2.If so, can the respondent show that the reason or principal reason was one of the potentially fair reasons set out in section 98 (2) ERA 96 or for some other substantial reason? 4.3.Did the respondent follow a fair procedure in the dismissal of the claimant? Mr Fakunle very fairly conceded that as it was the respondent’s case there was no dismissal, if the tribunal found the claimant had been dismissed, as the respondent had not utilised any procedure, inevitably any dismissal would be procedurally unfair. 4.4.Was there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed? The tribunal indicated it would address this issue, if necessary, at the remedy stage. Discrimination arising from disability section 15 Equality act 2010.[5]Did the respondent treat the claimant unfavourably by dismissing the claimant? 5.1.Did the following something arise in consequence of the claimant’s disability namely the claimant’s absence? 5.2.Did the respondent dismiss the claimant because of that absence? 5.3.Was the treatment a proportionate means of achieving a legitimate aim? The respondent said that its aims were operational efficiency, avoiding disruption and having a cooperative staff. 5.4.Was the treatment an appropriate and reasonably necessary way to achieve those aims? 5.5.Could the respondent show that it did not know and could not reasonably have been expected to know that the claimant had a disability?[6]It was conceded that at all material times the claimant suffered from caudia equina and the respondent admitted that this was a disability within the meaning of section 6 EQA 10. Wrongful dismissal/notice pay[7]Was the claimant dismissed by the respondent in breach of contract? Failure to provide a statement of employment particulars[8]Did the respondent fail to provide a statement of employment particulars? 8.1.If so, what award should be made under section 38 EA 02. The evidence.[9]The tribunal heard oral evidence from :-• The claimant himself.• Ms Becky Daniel ( the claimant’s daughter)• Mrs Brenda Daniel (the claimant’s wife)[10]For the respondent, the tribunal heard oral evidence from: –• Mr Christopher Spence• Mr Andrew Spence (son of Mr Christopher Spence)[11]The tribunal also had before it a bundle of documents which initially consisted of 317 pages. With the tribunal’s permission a number of further documents were added to the bundle, producing a total page count of 320. A reference to a number in the judgement is a reference to a page in the bundle. Findings of fact[12]There were numerous factual disputes between parties. The tribunal has not attempted to determine each and every one of those issues. The tribunal has only made findings of facts in respect of the agreed issues. Background[13]The claimant originally started working for Mr A. Spence’s grandfather on 01 June 1981. He was never given a statement of employment particulars.[14]His employment ended, he says, by means of express dismissal on 05 April 2022. 15.It was common ground that if the claimant had been dismissed by the respondent he was entitled to 12 weeks’ notice. 16.At all material times the claimant was a farm worker and the respondent operated a mixed farm. The claimant lived in the same small village as the respondent and they knew each other well. Mra. A. Spence ran the farm with the assistance of the claimant. During the claimant’s absence Mr A. Spence had some support from his father, Mr C. Spence who, prior to the events set out below, had ceased to take a full time active physical involvement in the farm. The accident. 17.On 07 January 2021 the claimant suffered an accident at work when he slipped and fell on ice. 18.The claimant continued to work whilst in pain, taking painkillers prescribed by his general practitioner. 19.The claimant’s condition worsened and following a further consultation with his general practitioner, during a period of holiday from work, he was admitted to hospital on 04 February 2021 for spinal surgery. 20.Despite the spinal surgery the claimant was left with a physical impairment, caudia equina. 21.The claimant informed Mr C. Spence of his hospitalisation on 05 February 2021 and that he would not be returning to work following the expiration of his holiday on 08 February 2021. Sickness absence. 22.The claimant was discharged from hospital on 08 February 2021 and subsequently supplied the respondent with a fit note, signing the claimant off until 01 April 2021. 23.The fit note stated “Cauda equina and emergency spinal surgery” as the reason for the claimant’s absence.(83). The claimant was to supply fit notes regularly to the respondent, up to 16 April 2022, which gave the reason for absence as being either “Primary decompression of the lumbar spine” or “Cauda equina and emergency spinal surgery”. 24.Cauda equina syndrome produces symptoms of sciatica on both sides of the back, weakness or numbness in the legs, difficulties in urination and defecation (163/167). 25.Under the provisions of the Agricultural Wages Order the claimant was entitled, given his length of service, to 6 months full pay in the case of sickness.. There was some difficulty in respect of payment between the parties, a matter the tribunal did not need to explore. Suffice to say sick pay in accordance with the Agricultural Wages Order was paid, with the last payment appearing on the claimants weekly pay slip dated 10 September 2021 (186). 26.On 01 April 2021 Mr C. Spence wrote to the claimant asking for sight or his medical records to determine whether he could continue to undertake agricultural work. 27.On 12 April 2021 the claimant refused, as he considered it was too early to consider a return to work as he was awaiting physiotherapy. 28.It was a feature of this case that the respondent asked on a number of occasions for the claimant’s consent to review his medical records, which were refused. The claimant considered this was harassment and an attempt to engineer his dismissal but the tribunal concluded the respondent was genuinely seeking to ascertain when the claimant was likely to return to work, given Mr A. Spence was having to manage the farm virtually single-handedly with some help from his father and an occasional contractor. 29.Unfortunately the claimant remained unfit for work and various correspondence again took place between Mr C. Spence and the respondent asking for access to medical records which the claimant refused. 30.Probably just after July 2021 the respondent received a personal injury claim notification form from the claimant’s solicitors (306/310). 31.The claimant’s injury in that form was described as “ Cauda Equina syndrome in the back caused as a result of the claimant falling onto his back and as a result of the accident. The claimant currently has pain in his back, pain radiating into his legs, groin pain, difficulty urinating, shock and distress” In the section of the form section headed “rehabilitation” it was claimed that the claimant “needs help to gain full mobility back. Struggles to walk up hills and for a sustained amount of time. Struggles to lift or carry things” 32.On 17 August 2021 the claimant was awarded a Personal Independence Payment. 33.The tribunal noted page 105A in the bundle, which was a document produced by the respondent. Although neither Mr C. nor Mr A. Spence recognised the handwriting the tribunal considered it was likely it was from their accountant. The relevant extracts read as follows “I spoke to Chris 16.9.21.” [It was accepted this was a reference to Mr C. Spence.] The note went on “Chris phoned back – the NFU say no further need to pay the employee, give him a seven-day notice to appeal and then if he doesn’t contact he can be terminated”. 34.Mr C. Spence accepted that he was speaking to the NFU for advice at the relevant time. The tribunal concluded the reference to, no need to pay the claimant, was a reference to his full pay ending under the terms of the Agricultural Wages Order and Mr A .Spence had sought advice in respect of termination. 35.On 17 September 2021 (105) Mr C. Spence wrote to the claimant against seeking access to his medical records. The letter stated that the respondent was anxious to know when the claimant could return to work, how he could be supported and whether any reasonable adjustments could be made. The letter stated if the medical records were not provided a meeting would be held to make a decision on the matter of employability on the basis of the information then available. The claimant concluded, reasonably, that the respondent was actively considering his termination. 36.On 22 September 2021 (106) the claimant indicated he would be prepared to attend a medical consultation with a view to obtaining an occupational health report at the cost of the respondent and indicated he planned to return to work. He also indicated his father had just died. 37.The respondent then did nothing. The respondent suggested they were waiting for the claimant to contact them as it was not clear how long he needed to recover from the bereavement. The tribunal did not accept that explanation given the claimant said explicitly in his letter of 22 September 2021 “… Myself and my family need some time to ourselves this week [tribunal emphasis] to come to terms with our sad loss”. The claimant was only seeking a deferment of one week and the respondent knew that. 38.So at this point, although the claimant was content to be examined, so the respondent could obtain a prognosis on his condition, the matter was not further pursued by the respondent. Dismissal? 39.No further meaningful contact, other than the claimant sending in fit notes, took place until 05 April 2022 when the claimant received a P45, addressed to him, through the post (110/112). There was no covering letter. The date of termination of the claimant’s employment was stated to be 17 September 2021. The document was headed “ Details of employee leaving work”. It explained how parts 2 and 3 had to be given to a new employer. The claimant considered he had been dismissed. After the expiration of his last fit note the claimant did not supply any further fit notes. The last fit note (109) the claimant supplied was dated 17 January 2022 and covered the period up to 16 April 2022 40.On 21 April 2022 (113) the claimant wrote to the respondent confirming he received the P45 and requested all outstanding holiday pay be paid to him. 41.It was not disputed the claimant was then paid his outstanding holiday pay. Thus the respondent must have received the letter of the 21 April 2022. 42.On 03 May 2022 the claimant received an unsigned document, apparently printed off on 29 April 2022 on which was written “please note it was not a P 45 sent you. It was a P 60 which is a tax notification for the past year.” Factually that was wrong. The claimant had clearly received a P45 and it gave a backdated termination date. 43.On the same day the claimant presented his tribunal claim form. 44.Mr A. Spence telephoned the claimant on 20 May 2020, after the respondent had received the tribunal claim form, and asserted the claimant was still employed and questioned how the claimant had received a P45. The claimant explained the circumstances. 45.The respondent thereafter contacted its accountants F.E. Metcalfe and Co. They provided a “to whom it may concern letter” (115) to the respondent dated 27 May 2022 which stated the P45 had been issued in error and the claimant had been “reinstated onto the payroll”. The letter first came to the claimant’s attention when he saw it as an appendix to the respondent’s response. 46.In previous years the claimant had received a P 60 in approximately April of each year. 47.The respondent confirmed by text on 02 June 2022 that the claimant remained on its payroll as an employee. 48.Various attempts then followed by the respondent to engage the claimant in sickness/welfare review meetings, all of which the claimant refused to attend on the basis, he contended, his employment had already entered. Submissions 49.Both parties made submissions and the tribunal means no disrespect to either for failing to record each and every argument or submission made. The tribunal had full regard to the submissions. 50.Mr Fakunle provided a skeleton argument and concentrated exclusively on whether there was a dismissal and the factual matters which he contended favoured the respondent. He relied upon two authorities namely Sandle -v- Adecco Ltd UKEAT/0028/16/JOJ and Gisda Cyf -v- Barrett UKEAT/0173/08/ZT. 51.Ms Mellor made a short oral submission and pointed out factual matters which she contended favoured the claimant. She did not refer to any specific authorities. Discussion and conclusions. Dismissal 52.The tribunal started by examining whether the claimant had been dismissed. As the claimant made clear before Employment Judge Jerram on 13 September 2022 he relied on the concept of express dismissal only. 53.The tribunal considered the following were the relevant legal principles it had to apply. 54.Express dismissal is defined in section 95(1) (a) ERA96 as follows: – “(1) for the purposes of this part an employee is dismissed by his employer if (and, subject to subsection (2)…. only if) (a) the contract under which he is employee is terminated by the employer)….” 55.It is for the claimant to establish there was a dismissal and the burden of proof is on him and it is the balance of probabilities. 56.The tribunal reminded itself that the evidence it had to examine differed dependent upon whether the tribunal considered that any purported dismissal was unambiguous or ambiguous. 57.If unambiguous by the employer then it had to be taken at face value without the need for an analysis of the surrounding circumstances, see Southern Franks Charlesly and Co 1981 IRLR 278. 58.If the tribunal found there was an unambiguous dismissal by the respondent it could not be unilaterally withdrawn without the claimant’s consent, even if given by mistake, see Willoughby -v- CF Capital PLC 2012 ICR 1038. 59.If however the dismissal was ambiguous the tribunal had to apply an objective test. It was required to look at all the surrounding circumstances and if that did not resolve matters, then had to ask itself how a reasonable employer or employee would have understood matters, in the light of those circumstances. 60.The tribunal considered that here there was an unambiguous dismissal. The tribunal found, and the lay members emphasised, that any employee sent a P 45 with their name on it would take that as notice of dismissal particularly, as here, the document was clearly addressed to the claimant with the date of dismissal was endorsed on it. 61.The tribunal was fortified in this finding by the decision in Kelly -v- Riveroak Associates Ltd UKEAT/0290/05 which held that the sending of a P 45 with no contra indications was capable of communicating a dismissal ( see especially paragraphs 21 to 23 of the judgement). 62.The tribunal did not find the decision in Sandle -v- Adecco Ltd UKEAT/0028/16/JOJ of assistance to the respondent despite the urgings of Mr Fakunle . It was clearly distinguishable on its facts as no P45 was issued to the employee in that case and the crux of the case related to whether dismissal could be inferred from the conduct of neither party contacting each other following the ending of an agency assignment. 63.When the claimant requested, following receipt of the P 45 his holiday pay, he was paid it. If there really had been a misunderstanding, the tribunal considered that on receipt of the claimant’s letter of 21 April 2021 he would immediately have received a phone call or a text. None were forthcoming. 64.As the tribunal have already noted a mistake is not a defence although a failure of the claimant to accept reinstatement may be very relevant indeed in terms of compensation. 65.However the tribunal did not accept there was an innocent mistake, as alleged, by the accountants of which the respondent was unaware. 65.1.Firstly it considered that a firm of accountants would not mistake a P 60 for a P 45 65.2.Secondly a firm of accountants would need to know a termination date to insert in the P 45 and that could only have come from the respondent. 65.3.Thirdly, the note, 105 A ,which was probably prepared by the respondent’s accountant, referring to a conversation on 16 September expressly contemplated dismissal. The tribunal did not consider it was a coincidence that the respondent sent a letter to the claimant on 17 September mentioning a meeting to discuss the claimant’s future employability. 65.4.Fourthly the accountants had confirmed in writing (136/137) to the claimant that they did not write directly to the claimant but always sent pay details to their clients to then direct onto their employees. In other words it must have been the respondent who sent the P 45 to the claimant. A further factor which reinforced this finding was the P 45 had the claimant’s old address on it. However it was sent by post to the correct address. The respondent lived only a mile from the claimant and knew he had moved. It is likely therefore that the P 45 was posted by the respondent and not by its accountants. 66.Mr Fakunle submitted that as the P45 was sent by the respondent’s accountants there could have been no dismissal. For the reasons set out above, on balance it was sent by the respondent. If the tribunal was wrong and it was found the dismissal was ambiguous the tribunal would still have found a dismissal looking at matters objectively and having regard to the surrounding circumstances. The p 45, the lack of contact from the respondent, the payment of accrued holiday pay when asked and the failure to communicate with the claimant until he issued his claim form would reasonably lead the claimant to conclude he was dismissed. Effective date of termination 67.The next question the tribunal had to determine was what was the effective date of termination. The tribunal noted it was not suggested by the respondent the claim was out of time, despite the date of dismissal endorsed on the P 45. However as this was a jurisdictional issue the tribunal considered it prudent to address the point. 68.The date on P 45 has nothing whatsoever to do with the effective date of termination because termination is a statutory concept see London Borough of Newham v Ward 1985 IRLR 509, CA. 69.The tribunal concluded the effective date of termination was 05 April 2022, and not the date given in the P 45. Notice is only given when it is communicated to an employee and if by post, when it is read or when the recipient had a reasonable opportunity to read it, see Newcastle upon Tyne Hospitals NHS Foundation Trust -v- Hayward 2018 UKSC 22. 70.The claimant saw the P45 on 05 April 2022 so that was the effective date of termination. A fair dismissal? 71.That, however is not the end of the matter. Even though dismissal has been established and the claimant presented his claim within time it was also open to the respondent to show that the dismissal was fair. The tribunal can deal with this point shortly given the very fair concession made by Mr Fakunle at the start of proceedings. 72.Section 98 of the ERA 96 provides:- “(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a)the reason (or, if more than one, the principal reason) for the dismissal, and (b)that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2)A reason falls within this subsection if it— (a)relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b)relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment…… (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)— (a)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 (b)shall be determined in accordance with equity and the substantial merits of the case”. 73.The tribunal having found the respondent had dismissed the respondent bore the burden of establishing a potentially fair reason for dismissal. It had not. 74. Whilst the tribunal might infer it was for capability that was not the express case of the respondent. As the respondent did not surmount this hurdle the dismissal was unfair. 75.If the tribunal was wrong on that point, and it was found elsewhere this was a capability dismissal, the tribunal examined the section 98(4) question, the “fairness “ question. 76.The hallmark of a fair capability dismissal is obtaining up-to-date medical advice , a meeting with the employee, and an appeal process. None of this occurred. The respondent did not even start to demonstrate to the tribunal (the burden of proof on this element being neutral) that it had acted fairly. The claimant had made it clear he was content to be examined by an occupational health professional but that was not pursued by the respondent and no meeting was held with him prior to dismissal. 77.The claimant’s dismissal was unfair. Wrongful dismissal – breach of contract 78.The claimant was dismissed without notice. 79.Under section 86 ERA 96, given the claimant had been employed by the respondent for more than 12 years he was entitled to 12 weeks’ notice. The respondent did not argue, and indeed could not argue on the facts, that the claimant was dismissed in circumstances where it could rely upon summary dismissal. 80.The claimants complained of wrongful dismissal/breach of contract must therefore succeed. 81. The sum to be awarded will be ascertained at the remedy hearing, if not agreed. Written particulars of employment. 82.Section 38 EA 02 provides:- “(1)This section applies to proceedings before an employment tribunal relating to a claim by worker under any of the jurisdictions listed in Schedule 5.(2) If in the case of proceedings to which this section applies— (a) the employment tribunal finds in favour of the worker, but makes no award to him in respect of the claim to which the proceedings relate, and (b) when the proceedings were begun the employer was in breach of his duty to the worker under section 1(1) or 4(1) of the Employment Rights Act 1996 (c. 18) (duty to give a written statement of initial employment particulars or of particulars of change (in the case of a claim by an worker) under section 41B or 41C of that Act (duty to give a written statement in relation to rights not to work on Sunday),the tribunal must, subject to subsection (5), make an award of the minimum amount to be paid by the employer to the worker and may, if it considers it just and equitable in all the circumstances, award the higher amount instead.(3) If in the case of proceedings to which this section applies— (a) the employment tribunal makes an award to the worker in respect of the claim to which the proceedings relate, and (b) when the proceedings were begun the employer was in breach of his duty to the worker under section 1(1) or 4(1) of the Employment Rights Act 1996 (in the case of a claim by an worker under section 41B or 41C of that Act) the tribunal must, subject to subsection (5), increase the award by the minimum amount and may, if it considers it just and equitable in all the circumstances, increase the award by the higher amount instead.(4) In subsections (2) and (3)— (a) references to the minimum amount are to an amount equal to two weeks’ pay, and (b) references to the higher amount are to an amount equal to four weeks’ pay. (5)The duty under subsection (2) or (3) does not apply if there are exceptional circumstances which would make an award or increase under that subsection unjust or inequitable.” 83.The claimant has succeeded in respect of a complaint which falls within schedule five. 84.The respondent admitted the claimant had not been given written particulars of employment. 85.In the circumstances the claimant is entitled to succeed, the level of the award being assessed at the remedies hearing. Section 15 EQA 2010 86.Section 15 EQA10 provides: "15(1) a person (A) discriminates against a disabled person (B) if – (a) A treats B unfavourably because of something arising in consequence of B's disability and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim. (2) subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability. " Knowledge 87.The first issue the tribunal considered was whether the respondent could rely upon the defence available to it under section 15(2) of the EQA10 as, if it could, it was not necessary for the tribunal to then move on to the substantial merits of the complaint. 88.Could the respondent show that it did not know, and could not reasonably have been expected to know that the claimant had the disability of caudia equina at the date of the alleged discriminatory act namely the claimant’s dismissal? . The burden of proof is on the respondent. 89.HHJ Eady QC in A Ltd v Z [2020] ICR 199, EAT, summarised the authorities as follows at paragraph 23: ''(1) There need only be actual or constructive knowledge as to the disability itself, not the causal link between the disability and its consequent effects which led to the unfavourable treatment, see City of York Council v Grosset [2018] EWCA Civ 1105, [2018] IRLR 746, [2018] ICR 1492 CA at para 39. (2) The Respondent need not have constructive knowledge of the complainant's diagnosis to satisfy the requirements of s 15(2); it is, however, for the employer to show that it was unreasonable for it to be expected to know that a person (a) suffered an impediment to his physical or mental health, or (b) that that impairment had a substantial and (c) long-term effect, see Donelien v Liberata UK Ltd (2014) UKEAT/0297/14, [2014] All ER (D) 253 (Dec) at para 5, per Langstaff P, and also see Pnaiser v NHS England (2016) UKEAT/0137/15/LA, [2016] IRLR 170 EAT at para 69 per Simler J. (3) The question of reasonableness is one of fact and evaluation, see Donelien v Liberata UK Ltd] [2018] EWCA Civ 129, [2018] IRLR 535 CA at para [27]; nonetheless, such assessments must be adequately and coherently reasoned and must take into account all relevant factors and not take into account those that are irrelevant. (4) When assessing the question of constructive knowledge, an employee's representations as to the cause of absence or disability related symptoms can be of importance: (i) because, in asking whether the employee has suffered substantial adverse effect, a reaction to life events may fall short of the definition of disability for EqA purposes (see Herry v Dudley Metropolitan Council (2016) UKEAT/0100/16, [2017] ICR 610, per His Honour Judge Richardson, citing J v DLA Piper UK LLP (2010) UKEAT/0263/09, [2010] IRLR 936, [2010] ICR 1052), and (ii) because, without knowing the likely cause of a given impairment, “it becomes much more difficult to know whether it may well last for more than 12 months, if it is not [already done so]” [sic], per Langstaff P in Donelien EAT at para 31.(5) The approach adopted to answering the question thus posed by s 15(2) is to be informed by the Code, which (relevantly) provides as follows: “5.14 It is not enough for the employer to show that they did not know that the disabled person had the disability. They must also show that they could not reasonably have been expected to know about it. Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a 'disabled person'. 5.15 An employer must do all they can reasonably be expected to do to find out if a worker has a disability. What is reasonable will depend on the circumstances. This is an objective assessment. When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.”(6) It is not incumbent upon an employer to make every enquiry where there is little or no basis for doing so (Ridout v T C Group (1998) EAT/137/97, [1998] IRLR 628; Alam v Secretary of State for the Department for Work and Pensions (2009) UKEAT/0242/09, [2010] IRLR 283, [2010] ICR 665).(7) Reasonableness, for the purposes of s 15(2), must entail a balance between the strictures of making enquiries, the likelihood of such enquiries yielding results and the dignity and privacy of the employee, as recognised by the Code.'' 90.The tribunal is satisfied that the respondent had actual or in the alternative constructive knowledge of the claimant’s disability as at dismissal. 91.The respondent had before it fit notes which explained the claimant was unfit for work and the nature of his condition. 92.The claimant was suffering from Cauda equina. It would have been a simple enough task to simply have googled the disease to obtain further information. 93.Thus the respondent knew or ought to have known the claimant was suffering from a physical impairment. 94.The respondent knew or ought to have known that it was long-term given the respondent was still receiving fit notes up to dismissal, some 14 months after the accident. 95.The respondent knew in July/August 2021, from the notification of the personal injury claim of further details of the condition and its effect on the claimants’ day-to-day activities. 96.The respondent was offered the opportunity to have the claimant examined by its own occupational expert but did not do so. Had it done so it would have found the physical impairment had a substantial effect upon the claimant’s day-to-day activities. 97.The respondent did not adduce any evidence to show that it was unreasonable for it to be expected to know that the claimant suffered an impediment to his physical health, and that that impairment had a substantial and long-term effect. 98.In the circumstances the respondent has not satisfied the tribunal that the knowledge defence is made out. 99.The tribunal then turned to the merits of the discrimination arising from disability complaint. 100.Section 15(1) (a) contains a double causation test namely:• The unfavourable treatment must be "because of" the relevant "something"• The "something" must itself arise "in consequence" of the disability see Basildon and Thurrock NHS Foundation Trust v Weerasinghe 2016 ICR 305. Weerasinghe stresses that the test is whether the unfavourable treatment was because of something arising in consequence of the disability and not simply whether it was as a consequence of the disability. The EAT decision in Pnaisier v NHS England and another 2016 IRLR 170 helpfully sets out the steps that must be undertaken. "(a) A Tribunal must first identify whether there was unfavourable treatment and by whom: in other words, it must ask whether A treated B unfavourably in the respects relied on byb. B. No question of comparison arises. (b) The Tribunal must determine what caused the impugned treatment, or what was the reason for it. The focus at this stage is on the reason in the mind of A. An examination of the conscious or unconscious thought processes of A is likely to be required, just as it is in a direct discrimination case. Again, just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so to, there may be more than one reason in a section 15 case. The "something" that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial influence on the unfavourable treatment), and so amount to an effective reason for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment and A's motive in acting as he or she did is simply irrelevant. (d) The Tribunal must determine whether the reason/cause or, if more than one, a reason or cause is "something arising in consequence of B's disability". That expression "arising in consequence of" could describe a range of causal links. Having regards to the legislative history of section 15 of the act…,the statutory purpose which appears from the wording of section 15, namely to provide protection in cases where the consequence or effects of a disability lead to unfavourable treatment, and the availability of a justification defence, the causal link between the something that causes unfavourable treatment and the disability may include more than one link. In other words, more than one relevant consequence of the disability may require consideration, and it may be a question of fact arising robustly in each case where something can properly be said to arise in consequence of disability. (e)…the more links in the chain there are between disability and the reason for the impugned treatment, the harder it is likely to establish the requisite connection as matter of fact. (f) This stage of the causation test involves an objective question and does not depend on the thought processes of the alleged discriminator. …(i)…it does not matter precisely in which order these questions are addressed. Depending on the facts, a Tribunal may ask why A treated the Claimant in the unfavourable way alleged in order to answer the question whether it was because of "something arising in consequence of the Claimant's disability". Alternatively, it might ask whether the disability has a particular consequence for a Claimant that leads to "something" that causes the unfavourable treatment". 101.It was not disputed that dismissal was potentially unfavourable treatment. 102.The claimant’s absences arose as a result of his disability. 103.The tribunal considered that in the mind of the respondent it terminated the claimant’s employment because of the claimant’s absences. The respondent did not consider it was likely the claimant would return in the near future and it was difficult for Mr A Spence to run the farm on his own. For the reasons already mentioned this was not a mistake by the respondent’s accountants. The necessary elements of section 15 (1) (a) are therefore satisfied. 104.Can the respondent establish the justification defence? Justification 104.The test is whether the unfavourable treatment is a proportionate means of achieving a legitimate aim. 105.To be proportionate the unfavourable treatment has to be both an appropriate means of achieving the legitimate aim and a reasonably necessary means of doing so. In particular the tribunal has to consider whether a lesser measure would be a proportionate means of achieving the employers' legitimate aim, see Naeem –v- Secretary of State for Justice 2017 UKSC 27 106.The tribunal was satisfied the respondent had demonstrated a legitimate aim namely to ensure the efficient running of the business. Mr A. Spence could not run the farm on his own. He could not rely wholly on contractors and needed to reach a long-term solution. Nor could he rely upon his father, given his father’s age. The position of the claimant’s employment needed to be resolved so the respondent could make decisions as to staffing going forward. 107.However the means the respondent took were not proportional. The test for unfair dismissal and section 15 are different but normally a finding of unfair dismissal is likely (but not inevitably) to result in the justification defence being unsuccessful particularly in a case of longterm sickness, see the judgement of Lord Justice Underhill in O’ Brien - v- Bolton St Catherine’s Academy [2017] EWCA Civ 145. The tribunal relies on its reasoning as to why the dismissal was unfair to support its finding that the respondent’s actions were not proportionate. 108.Whilst the claimant may ultimately have been dismissed it was not proportionate to dismiss the claimant when the respondent did so without first obtaining medical evidence, it being remembered the claimant had agreed to an examination by an occupational health physician, and holding the meeting with him. 109.It follows therefore that such defence must fail. 110.The case will now be listed for remedies hearing with a time estimate one day. Separate case management orders will be made. 111.The claimant is reminded that the fact the respondent offered to reinstate the claimant may be very relevant as to compensation as will be whether there was a real risk the claimant would have been fairly dismissed at a future date given his health.[1]The claimant is awarded a basic award of £11,400 for his unfair dismissal. No compensatory award is made, the said application having been withdrawn[2]The claimant’s claim for loss of statutory rights is dismissed.[3]Section 208A of the Trade Union and Labour Relations (Consolidation) Act 1992 does not apply to any award made by the tribunal.[4]The claimant is awarded £3,926.52 as damages for breach of contract.[5]The claimant is awarded £1520 (four weeks pay) under section 38 of the Employment Act 2002.[6]The claimant is awarded £9000 for injury to feelings. Case numbers 2500563/2022 and 2500866/2022[7]The claimant is entitled to interest injury to feelings amounting to £964.60.[1]The claimant is awarded a basic award of £11,400 for his unfair dismissal. No compensatory award is made, the said application having been withdrawn[2]The claimant’s claim for loss of statutory rights is dismissed.[3]Section 208A of the Trade Union and Labour Relations (Consolidation) Act 1992 does not apply to any award made by the tribunal.[4]The claimant is awarded £3,926.52 as damages for breach of contract.[5]The claimant is awarded £1520 (four week’s pay) under section 38 of the Employment Act 2002.[6]The claimant is awarded £9000 for injury to feelings.[7]The claimant is entitled to interest injury to feelings amounting to £964.60.
REASONS
Abbreviations ERA 96. The Employment Rights Act 1996. EQA10. The Equality Act 2010. EA 02. The Employment Act 2002. NMW 98. The National Minimum Wage Act 1998. TULCRA 92. The Trade Union and Labour Relations. (Consolidation) Act 1992. ITEPA 2003. The Income Tax (Earnings and Pensions) Act 2003.
The issues
[1]The tribunal, having found on 10 May 2023 (“the liability judgement”) that the claimant’s complaints of unfair dismissal, discrimination arising from disability, breach of contract/wrongful dismissal and a failure to provide a statement of employment particulars were well founded, convened to determine remedy.[2]The claimant indicated at the start of the hearing that he was no longer seeking a compensatory award for unfair dismissal.[3]He also confirmed he was not seeking re-instatement or re-engagement.[4]Although reference was made in the claimant’s statement to not having been paid the NMW 98, it had been agreed at the liability hearing that this matter was not being pursued before the tribunal, and would be dealt with in another forum. The tribunal has therefore not addressed this matter in its liability judgement, other than ensuring that in calculating a week’s pay, the hourly rate utilised met the relevant NMW 98 threshold.
The evidence
[5]The claimant provided an undated supplemental statement addressing the issue of remedy and gave oral evidence.[6]Mr. C. Spence provided an undated supplemental statement, late, but with the permission of the tribunal was permitted to adduce it in evidence, and gave oral evidence on oath.[7]The tribunal also had before it a supplemental bundle which initially consisted of 328 pages. This was supplemented at the start of the hearing. The final bundle totaled 333 pages. A reference in this judgement to a page number is a reference to that supplemental bundle, unless otherwise indicated.
Findings of fact
[8]This judgement should be read in conjunction with those findings recorded in the liability judgement.[9]The claimant started work with the respondent on 01 June 1981 and his employment terminated on 05 April 2022.[10]The respondents sought to effectively rescind the dismissal by means of a note to the claimant dated 03 May 2022. Various attempts were then made to engage with the claimant as regards discussing his sickness and future employability. He was placed back on the respondent’s books. The claimant refused to engage, as he had received advice that he had been dismissed.[11]The claimant presented his claim to the tribunal on 03 May 2022.[12]The claimant was born on the 30 April 1958 and was therefore aged 63 at termination.[13]The claimant was employed by the respondent as a farm worker. He worked fulltime, 40 hours per week. The respondent operated a mixed farm and the claimant was its only employee.[14]The work undertaken by the claimant was physical and often involved working in dirty, inclement conditions.[15]On 07 January 2021 the claimant suffered an injury at work when he slipped and fell on ice.[16]The claimant stated that following the accident, and consequential emergency back surgery, he was left in very low spirits, felt depressed and suffered from shock.[17]Whilst absent from work the claimant suffered significant pain and was left with unsteadiness when walking, weakness in his left leg and numbness of his feet. He found it hard to come to terms with the fact he could not do routine tasks such as dressing and personal care, without the assistance of his wife.[18]He experienced irritability, lack of sleep and depression.[19]The claimant described his situation as worsening during the late summer of 2021 in terms of anxiety and depression. He continued to suffer physical pain. His contractual sick pay had run out and he was concerned as regards money. He had difficulties coming to terms with the fact he could no longer do things he had done previously and enjoyed. For example, he could not pursue his hobbies of fishing, shooting, gardening or even walking the family dog.[20]From 03 August 2021 the claimant was prescribed, along with his other medication, amitriptyline, an antidepressant, by his GP.[21]He continues to take that medication. Following his dismissal, the dosage did not increase. (271 to 275).[22]It is appropriate to briefly mention that the claimant had been prescribed, prior to his dismissal, Amlodipine, a medication for blood pressure (271 to 275). The initial dosage increased, prior to dismissal but subsequently reverted to the initial dosage. This is relevant because the claimant’s evidence was that he believed he was prescribed medication for his blood pressure after his dismissal. The tribunal considered the claimant had made a mistake with his dates due to the passage of time.[23]On 17 August 2021 the claimant was awarded a personal independence payment.[24]On 14 September 2021 the claimant was awarded Industrial Injuries disablement allowance.[25]In early 2022 the claimant considered there had been some improvement in his physical symptoms due to physiotherapy. His anxiety had diminished due to the effect of medication.[26]The claimant was in total shock when on 05 April 2022 he received his P 45. When he had briefly seen Mr. Christopher Spence the previous month, termination had not been mentioned.[27]The claimant described himself as being devastated because he had lost a job he loved simply because of an accident at work. As he said in his own words “they didn’t realise what they had done to me”.[28]He believed the respondents did not care, which hurt his feelings, given his very long service for the respondent.[29]The claimant accepted before the tribunal that even if there had been a meeting to discuss his health before dismissal, and medical evidence obtained, he was unfit to do his job and dismissal was inevitable and he would not work again in any capacity.[30]Between the accident and termination, the claimant was unfit to work. Throughout that period, he was signed off as unfit by his general practitioner.[31]The tribunal accepted the claimant’s mental health, which had been improving due to medication pre dismissal, probably did regress somewhat following the termination of his employment as the claimant attended his GP practice on 14 April 2022 with a racing heart, although it transpired that there was no underlying medical condition. (255). The GPs notes stated in terms of a plan “go home, cup of tea and a biscuit ring after lunch if no better”. Tests undertaken at the time showed no significant abnormality. The tribunal accepted that the most likely explanation was the claimant had a panic attack and it was prepared to accept, on the balance of probabilities, that this flowed from his dismissal. However there was nothing else, following dismissal, to demonstrate any deterioration in the claimant’s mental health flowing from his dismissal.[32]The claimant was contacted by the respondents following the institution of tribunal proceedings but no apology was given to him for sending a P 45. It was not until 02 June 2021 that he was expressly told that he was still employed (although the tribunal had found the claimant had been dismissed).[33]Following termination, the claimant’s mobility remained and remains a problem. The claimant has difficulty walking, bending and lifting, had weakness and ongoing joint pain, back pain and cramping in both legs. He experienced problems with his bladder emptying and increased frequency of urination. He continues to suffer from pain in both legs feet and arms which he finds depressing. The claimant has been referred to “talking therapies” in respect of his mental health but this is attributable to the claimant’s mental health that flows from his physical injuries.[34]The claimant since termination has been receipt of disability benefits.[35]As at termination the NMW was £9.50 per hour.[36]A 40-hour week therefore produced a gross figure of £380 and a net figure of £327.21.[37]The Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations 1996 (SI 1996/2349) do not apply. Submissions[38]Neither party referred the tribunal to any case law or statute.[39]Both parties referred to their respective updated schedules/ counter schedules of loss.[40]Ms. Mellor stressed the upset the claimant had suffered. She said the dismissal certainly played a part in his current condition. She emphasised the claimant had never received a formal apology. The claimant was seeking a top band ( sometimes called an upper band) Vento award[41]Mr. Fakunle stressed to the tribunal there should be no double award, or over compensation, having regard to the fact the claimant had an outstanding personal injury claim.[42]He said the claimant had failed to engage in any process prior to his termination. If that had been done the situation that arose may never have arisen and that was relevant to injury to feelings he submitted. The tribunal reminded Mr. Fakunle that there was no process immediately prior to dismissal. Mr Fakunle that initially he put injury to feelings at about £12,000 but now put them at £15,000. Conclusion and reasons.[43]The tribunal have addressed each head of loss raised by the parties that were pursued before it. Breach of contract/wrongful dismissal[44]The tribunal had already found in its liability judgement that the claimant was entitled to 12 weeks’ notice under section 86 ERA 96. The respondent had not been able to establish it had grounds to dismiss the claimant summarily. It follows the claimant is entitled to damages for breach of contract.[45]Damages for breach of contract/wrongful dismissal are therefore :- 12 weeks x £327.21 = £3,926.52. Loss of statutory rights[46]The tribunal declined to make an award of loss of statutory rights. The reason for this is the purpose of the award is to compensate an employee for the fact they must accrue two years continuous service to obtain unfair dismissal and redundancy rights.[47]Given the claimant accepted he would never return to work due to his health condition, he is not entitled to be compensated under this head because he has suffered no loss. Uplift.[48]The claimant contended there should be an uplift on various heads of his claim under Section 207A (2) of TULCRA which provides: – “(2) if, in the case of proceedings to which this section applies, it appears to the employment tribunal that-(a) the claim to which the proceedings relate concerned the matter to which a relevant Code of Practice applies,(b) the employer has failed to comply with that Code in relation to that matter, and(c) that 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%”.[49]Thus, section 207A of TULCRA provides, in summary a discretion to a tribunal to increase an award, if it is just and equitable, by no more than 25% in the circumstances set out in that section.[50]The claimant seeks a maximum uplift.[51]The tribunal declined to make an uplift.[52]The uplift is only applicable if the ACAS Code of Practice number one, code of practice on disciplinary and grievance procedures (2015) is engaged.[53]It was held in Holmes -v- QinetiQ Ltd 2016 IRLR 664 that the code was not applicable in cases of an ill health dismissal and the tribunal considered that this dismissal is best described as such a dismissal, as it was the claimant’s absence that was the reason the dismissal took place.[54]Nor can there be an uplift in respect of the breach of contract complaint because, while that would fall within schedule A2 of section 208A of TULCRA the claimant had not engaged the ACAS code of practice by presenting a grievance. A basic award[55]As the claimant was dismissed unfairly, he is entitled to a basic award. The tribunal calculated the basic award, applying section 119 ERA96 and concluded, that the basic award amounted to £11,400. (Length of service capped at 20 years with a multiplier of 30, given the claimant’s age, and gross weekly wage of £380.)[56]It disagreed with the higher calculation provided by the respondent because the respondent had assumed that 40 years full-service could be taken into account in respect of the calculation and also used an incorrect gross weeks’ pay figure. Section 38 EA 02[57]The tribunal is satisfied the claimant has succeeded in a claim set out in schedule 5 to EAO2.[58]Although the statutory language appears to be predicated on the fact that an award is mandatory that is not the legal position, see Levy -v- 34 ad Co Ltd UKEAT/0033/20.[59]However here was a case where no written particulars were given and no attempt was made, at any stage, to correct the matter in respect of a long serving employee.[60]The tribunal considered it was appropriate to make an award, given the respondent was on notice of the application, and that an appropriate award would be 4 weeks’ pay.[61]It was persuaded there were particular circumstances which required the award to be increased to 4 weeks’ pay. Those circumstances were the fact the claimant had worked for the respondent for 40 years, had access to the NFU and its accountants for advice and took no steps whatsoever to correct the omission over such a long period of time. The tribunal also noted in the respondent’s counter schedule it accepted an award of 4 weeks’ pay.[62]The claimant is therefore awarded four weeks under this head of claim, namely £1520. Injury to feelings.[63]The award of injury to feelings is intended to compensate the claimant for the anger, distress and upset caused by the unlawful treatment he has received. It is compensatory, not punitive.[64]The focus is on the actual injury suffered by the claimant and not the gravity of the acts of the respondent (see Komeng v Creative Support Ltd UKEAT/0275/18/JOJ).[65]The general principles that apply to assessing an appropriate injury to feelings award were set out by the EAT in Prison Service v Johnson [1997] IRLR 162, para 27 and which the tribunal has applied: ● Injury to feelings awards are compensatory and should be just to both parties. They should compensate fully without punishing the discriminator. Feelings of indignation at the discriminator’s conduct should not be allowed to inflate the award; ● Awards should not be too low, as that would diminish respect for the policy of the anti-discrimination legislation. Society has condemned discrimination and awards must ensure that it is seen to be wrong. On the other hand, awards should be restrained, as excessive awards could be seen as the way to untaxed riches; ● Awards should bear some broad general similarity to the range of awards in personal injury cases – not to any particular type of personal injury but to the whole range of such awards; ● Tribunals should take into account the value in everyday life of the sum they have in mind, by reference to purchasing power or by reference to earnings; ● Tribunals should bear in mind the need for public respect for the level of awards made. The matters compensated for by an injury to feelings award encompass subjective feelings of upset, frustration, worry, anxiety, mental distress, fear, grief, anguish, humiliation, unhappiness, stress and depression (see Vento v Chief Constable of West Yorkshire Police (No2) [2003] IRLR 102).[66]In Vento the Court of Appeal identified three broad bands of compensation for injury to feelings. The top band was for the most serious of cases such as where there was a lengthy campaign of harassment on the grounds of the protected characteristic, the middle band for serious cases that did not merit a higher award and the lower band for less serious cases, for example where there was a one-off event of discrimination.[67]The Presidents of the Employment Tribunals in England & Wales and Scotland has issued ‘Presidential Guidance: Employment Tribunal Awards for Injury to Feelings and Psychiatric Injury, which the tribunal considered.[68]The relevant bands for claims on or after 06 April 2022 were as follows: –• Lower band £990 to £9900• Middle band £9900 to £29600• Upper band £29600 to £49300[69]Interest can be awarded on the sum for injury to feelings under Reg 6(1)(a) of the Industrial Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 which provides that the period over which interest accrues begins with the date of the discrimination and ends on the date the tribunal calculates compensation.[70]From 6 April 2018, any compensation for injury to feelings in a termination payment will be taxable to the extent that the £30,000 ‘allowance’ has been exceeded, following an amendment to s406 ITEPA 2003, except where the compensation is for a psychiatric injury.[71]Although both parties made submissions on injury to feelings the tribunal is not bound by either submission. It must apply the above legal principles to reach a reasoned and just award.[72]The tribunal reminded itself that it had to determine the pain and injury the claimant had suffered which flowed from the one identified discriminatory act, namely his dismissal and it was for the claimant to prove his injury to feelings.[73]The tribunal cannot take into account the physical symptoms the claimant has suffered as a result of his accident as they are wholly unconnected and predate the discriminatory act, although they may be compensated, dependent upon the outcome of his personal injury claim, if he can establish the respondent was wholly or partly responsible for his accident.[74]The tribunal also has had to carefully take into account the fact that claimant was already suffering depression and anxiety prior to the discriminatory act, which flowed from the debilitating effects of his physical injuries and their impact on his day to day life. Thus, the tribunal had to look at what stress and anxiety flowed from the dismissal itself and in particular to what extent it aggravated the claimant’s preexisting conditions and for how long.[75]The starting point for the tribunal is that a discriminatory dismissal, without more, is normally in a range towards the top of the lower band and towards the bottom of the middle band. That however, in the tribunal’s judgement is simply a starting point and as in every case a final determination is fact specific.[76]The tribunal considered the following factors and have indicated what weight the tribunal gave to each (if any) in reaching its award:-• The claimant had no prior warning of his dismissal and the tribunal found he was left shocked, upset and distressed. He was left with a feeling of worthlessness after almost a lifetime of service. The fact the claimant had worked for the respondent for almost all his life led the tribunal to fully accept the claimant’s description of how he felt. The factor weighed heavily in favour of the claimant• Although there was no apology the respondent did communicate with the claimant, soon after the issuing of the P45, to seek to reassure him, in rather curt terms, that he was not dismissed. This was a factor that went a little way to reducing the hurt.• Although the claimant was critical of the attempts made, post termination of the respondent and the respondent’s advisers to seek to reinstate him and have him examined by their own occupational health physician, that was not a factor in the tribunal’s judgement that aggravated any award and again went a little way to reduce the hurt.• The claimant was critical that the respondents did not admit he was disabled before trial and that the matter had to be determined by the tribunal. In fairness to the respondent the claimant had not granted consent for them to access his medical records and, other than fit notes, he had not supplied any medical evidence. It is not appropriate to equate failure to make an early admission with an inference that the respondents were implying the claimant was not telling the truth. The burden of proof is upon the claimant and the respondent’s were entitled to require him to establish disability. The tribunal therefore regarded this as a neutral factor in its overall assessment.• It was suggested on behalf of the respondent that as the dismissal, would have occurred at some point in the future, for legitimate reasons, there should be a reduction in the injury to feelings award to reflect that future possibility. The tribunal rejected that notion. An award reflects the injury to feelings caused by the knowledge that the reason for the act was discrimination. It cannot be offset by the fact that a lawful dismissal may have been carried out in any event (see O’Donoghue v Redcar and Cleveland Borough Council [2001] IRLR 615).• There was no cogent medical evidence ( other than what the tribunal considered likely to have been a panic attack) that the claimant’s mental health worsened following termination. His prescription for antidepressants remained the same.• There was no evidence that the claimant required blood pressure treatment following his dismissal. As the tribunal has already explained the medical evidence showed that he was already receiving treatment prior to dismissal.[77]Doing the best, it can be tribunal considered an appropriate award was the top end of the bottom band and the sum of £9000 was an appropriate award. This was on the basis that there was an injury to the claimants feelings which did heighten his mental distress but in itself it was short term and did not materially impact upon the claimant’s pre-existing mental health.[78]Interest is awarded on an injury to feelings award from the date of the act of discrimination complained of until the date on which the tribunal calculates the compensation (see Reg 6(1)(a) IT(IADC) Regs 1996).[79]Therefore the interest calculation is :- 05 April 2022 until 07 August 2023, 489 days x £9000 x 8% = £ 964.60. 80.For completeness the tribunal was satisfied in looking at its figures there was no element of double compensation, given the claimant’s personal injury claim still had not been resolved. 81.Of course, this judgement may be placed before a civil court when that injury claim is processed so it is aware of what has already been ordered by the tribunal for injury to feelings and exactly the basis on which the award was made. 82.The sum therefore payable to the claimant is as follows: –• Basic award £11400• Breach of contract £3926.52• Section 38 EA 02 £1520• Injury to feelings £9000• Interest £ 964.60 83.The total award is therefore £26,811.12.