Ms A Smith v Luton and Dunstable NHS Foundation Trust: 3334167/2018
EMPLOYMENT TRIBUNALS
Case No 3334167/2018
Between
Ms A SmithClaimantLuton and Dunstable NHS Foundation TrustRespondent
Before
: Employment Judge Hyams, sitting aloneIn person for claimantDate 27 October 2020
JUDGMENT
It is just and equitable to permit the claimant to make her claim of disability discrimination, contrary to section 39 of the Equality Act 2010. Accordingly, the tribunal has jurisdiction to hear that claim.
REASONS
Introduction; the issue listed to be determined at the hearing of 29 June 2020[1]The hearing which took place before me on 29 June 2020 was for the determination of the question whether time should be extended for making the claim, which had plainly been made outside the primary time limit for doing so. The claim was about the withdrawal of an offer of employment made by the respondent to the claimant, who is a qualified midwife and whose epilepsy was the cause of a recommendation by an occupational health adviser of such limitations on the claimant’s employment that the respondent withdrew the offer. The claimant’s epilepsy is a condition which is a disability within the meaning of the Equality Act 2010 (“EqA 2010”), albeit that with medication its effects can be reduced, often (it appears) markedly.[2]The claim was the subject of a preliminary hearing conducted by Employment Judge Alliott on 2 September 2019, and this hearing was listed then. The time limit issue was stated in the following (slightly oddly numbered) subparagraphs of paragraph 5 of the case management summary of that hearing: “4.1 The job offer to the claimant was withdrawn in a telephone conversation held on or about 12 February 2018. As such, the three month primary limitation period for the presentation of her claim would have expired on 11 May 2018. However, the 11 May 2018 was during the time between the ACAS notification and the date on the ACAS certificate. Accordingly, the claimant had a further month to present her claim after 28 May 2018. Consequently, I calculate that the claimant’s claim had to have been presented by 27 June 2018. 4.2 The claim form was presented on 14 October 2018, some three months and seventeen days late. 4.3 Accordingly, I have agreed to the respondent’s request that there be an open preliminary hearing to determine whether it would be just and equitable to extend time for the presentation of the claim.” The evidence which I heard[3]I heard oral evidence from the claimant, whom Ms Grace cross-examined at length and in depth. I had before me a bundle containing 127 pages. I make my findings of fact below, after referring to the applicable law. The “just and equitable” test in section 123 of the EqA 2010[4]Section 123(1) of the EqA 2010 provides: “(1) Subject to sections 140A and 140B proceedings on a complaint within section 120 may not be brought after the end of—(a) the period of 3 months starting with the date of the act to which the complaint relates, or(b) such other period as the employment tribunal thinks just and equitable.”[5]The factors to be taken into account in determining what is “just and equitable” for that purpose are the subject of much case law. Chief Constable of Lincolnshire Police v Caston [2010] IRLR 327 contains (in paragraph 31) the following helpful comment of Sedley LJ: “There is no principle of law which dictates how generously or sparingly the power to enlarge time is to be exercised. In certain fields (the lodging of notices of appeal at the EAT is a well-known example), policy has led to a consistently sparing use of the power. That has not happened, and ought not to happen, in relation to the power to enlarge the time for bringing employment tribunal proceedings, and Auld LJ is not to be read as having said in Robertson [i.e. Robertson v Bexley Community Centre [2003] IRLR 434] that it either had or should. He was drawing attention to the fact that limitation is not at large: there are statutory time limits which will shut out an otherwise valid claim unless the claimant can displace them. Whether a claimant has succeeded in doing so in any one case is not a question of either policy or law: it is a question of fact and judgment, to be answered case by case by the tribunal of first instance which is empowered to answer it.”[6]British Coal Corporation v Keeble [1997] IRLR 336 makes it clear that the factors relevant when applying section 33 of the Limitation Act 1980 are to be applied in determining whether it is just and equitable to permit a claim to be made outside the primary time limit of three months (extended, if it is commenced before that period of three months ends, by any period of what is now called “early conciliation”, i.e. by reason of section 140B of the EqA 2010). Ms Grace submitted that the apparent weakness of the claim should be taken into account. In considering whether I should consider the merits of the claim, I referred myself to the following passage in paragraph 8-94.1 of volume 2 of the White Book: “The discretion conferred on the court by s.33 requires that the court must have regard to all the circumstances of the case (s.33(3)). This entitles the judge to take account of the ultimate prospects of success, and it has been emphasised in Davis v Jacobs [1999] Lloyd’s Rep. Med. 72, CA that it is incumbent on the judge to take great care when deciding to do so; the judge must specifically take care that all matters which might be taken into account are in fact considered.”[7]The factors that were referred to in Keeble as being relevant (taken from section 33(3) of the Limitation Act 1980) are these: “(a) the length of and reasons for the delay; (b) the extent to which the cogency of the evidence is likely to be affected by the delay; (c) the extent to which the party sued had cooperated with any requests for information; (d) the promptness with which the plaintiff acted once he or she knew of the facts giving rise to the cause of action; (e) the steps taken by the plaintiff to obtain appropriate professional advice once he or she knew of the possibility of taking action.”[8]Where a claim of unfair dismissal is made out of time, the test of reasonable practicability rather than whether it is just and equitable to extend time applies. In the context of a late claim of unfair dismissal the decision of the Court of Appeal in Schultz v Esso Petroleum Ltd [1999] ICR 1202, [1999] IRLR 488 shows that (as stated in the headnote to the ICR report): “where illness was relied on, although its effects had to be assessed in relation to the overall period of limitation, the weight to be attached to a period of disabling illness varied according to whether it occurred in the earlier weeks or the far more critical weeks leading up to the expiry of the limitation period”.[9]I saw no reason why that statement of principle should not be applied also where a claim of discrimination contrary to the EqA 2010 is made out of time, and much reason why it should be so applied. I therefore applied it here. My findings of fact about the reasons why the claimant did not make her claim until 14 October 2018[10]The claimant’s evidence was that she had suffered a dramatic downturn in her mental health after she received confirmation (which she had by then been expecting) in February 2018 of the withdrawal of the job offer that had been made in October 2017. As the claimant put it in the details of her claim (at the bottom of page 16 of the hearing bundle; any reference below to a page is to a page of that bundle): “In April/May 2018, after 18 months seizure free, I had several seizures and an admission to Accident and emergency. I have so struggled immensely with anxiety since this incident.”[11]The claimant’s witness statement went into much more detail than those two sentences. In the first three full paragraphs on page 45, she said this: “I had become nervous of everything. I could not make decisions and was questioning all my previous decisions, ie applying for the job in Luton. This led to being disorganised with personal administration for fear of it being bad news, or something I had done wrong or was rejected from. This includes my correspondence with ACAS and leads me to explain why my claim is out of date. I began communication in April 2018 and received an email which I did not read or certainly understand, explaining that it was now my responsibility to proceed. I believed until October, that I was waiting to hear from ACAS and was not required to do anything. I had signed up to become a volunteer with a children’s charity in April 2018, in an attempt to overcome some anxiety. I also signed up to a charity trek in November 2018 and this children’s charity was going to be my fund raising goal. But I was so nervous and too anxious to go until the beginning of September 2018. Even when I started going, I was a complete nervous wreck and even too nervous to make anyone a drink. I did not recognise the strong, confident professional I had been when I applied for the job. In many ways, this highlighted the feeling of failure. I was only there once a week in a volunteer capacity. Talking to mums, playing with children. But feeling like a failure because although I was being encouraged to apply for a job there, I was too anxious to do so. (When I eventually found this courage to apply in March 2019, I attended for an interview and had an overwhelming sense of panic that I was just going to be laughed at. This is not normal and not a reaction I have previously experienced but an adverse effect of what occurred in Luton) During the aftermath of the job offer withdrawal, I was struggling. I honestly do not know how I survived the summer of 2018 and ACAS/Luton and this tribunal could not have been further from my mind. They were the reasons my mind was in such turmoil but I lost all sense of responsibility and reality.”[12]The following passage at the end of page 45 and the top of page 46 was equally important: “The effects of this perceived discrimination could have been devastating. I sought help before they were. I had reached a low and knew I needed help. I walk over a bridge; renowned for people attempting suicide; to get to my home. Every time I crossed the bridge, I contemplated how difficult life was, and that I could understand suicide. I am not saying I was suicidal but I do not believe I was far from the thoughts. I felt alone, hopeless and had no self belief in my ability to change my future. I had been full of self belief before, but if the world is not accepting, it doesn’t make any difference. I believed others had so much power to decide your fate whether its lawful or not. I went to the GP. I got a referral to IAPT (Improving Access to Psychological Therapies) I spoke with my closest friend. 17th August 2018 was my toughest day. On the 18th August 2018, I was walking over said bridge and my mind was forced to adjust. There was a man threatening to jump. All of a sudden, I was faced with his decision (emergency services were in attendance) as if it were mine. The force of the feeling I got was overwhelming; Nothing is so bad. Everything can get better- unless it ends. He did not jump. From that day, I walked (I had a trek to train for), I talked with my friend, I attended an IAPT course and over the next 2 months, my mental health began to improve. I continued to be unemployed and feel unemployable, but I had a little hope. I still felt inadequate and as though I was likely to fail anything I tried. I even wanted to postpone my charity trek as I thought I was not good enough. I was afraid of making the wrong decision and felt as though I may not be welcome on the trip. I of course used other true excuses; a possible ear infection and a small skin surgery but omitted the real truth. I emailed the company but postponing was not possible so I needed to find my self belief. I slowly became more organised and in touch with reality. In October 2018, I believed I had not heard from ACAS. I soon realised I had; in May 2018; and had not realised due to my mental health issues. As soon as I discovered this, I emailed ACAS and immediately submitted my claim.”[13]There were copies of the claimant’s relevant medical records in the bundle. They had been disclosed in compliance with one of the case management orders made by Judge Alliott and the claimant thought that they were sufficient in that regard. However, during the hearing before me, she realised that there were emails between her and ACAS which she had not disclosed, and she disclosed one from ACAS to her dated 18 April 2018, which was 10 days before the early conciliation period formally commenced (as was clear from the early conciliation certificate at page 18) and which showed that ACAS at that time sent her a link to a number of internet web pages which would have shown her that she needed to make a claim at the latest within the period of 3 months from the date of the withdrawal of the job offer, extended by any early conciliation period.[14]As for the medical records, they included (at page 54) the records of the claimant’s consultations with (the claimant said) a nurse at the GP practice attended by the claimant, on 17 and 28 August 2018. The record of the first of those consultations started in this way: “Broke down into tears on entering room. Very distressed and tearful. Not been coping for last few days. Not wanting to leave the house, feels useless and not functioning. Applied for midwifery job in Luton and was offered it in februrary [sic]. Went to Occy health and after this told not offered job due to epilepsy. ... Doesn’t wish to burden friends with her mood and has kept away [from] them. Live alone. No job currently. Worried about money. Has epilepsy, last [seizure] was in May. Spoke with epilepsy SN at the time and increased meds back up as had reduced them. Does’t [sic] feel like talking to anyone, no [confidence] and self esteem low. Wonders if meds cause low mood or maybe should change them? But too inert to do anything about it currently. Reluctant to take antidepressant as just more medication. Agreed to referral to IAPT. No psychosis, no suicidal ideation, *** would be protective factor.”[15]I could not understand why there were any redactions in the notes, but there were some, one of which was the three asterisks in that passage. The diagnosis of “Mixed anxiety and depressive disorder (New Episode)” was recorded as having been made on 17 August 2018.[16]The record of the consultation of 28 August 2018 was at the top of page 54, and was in these terms: “Attended for review of mental health. Feeling much better this week. Has joined a gym, getting out for walks, all things she loves but not felt able to do. Talked with her ******* and ******* Feeling more positive. Felt her turning point was seeing some one trying to jump off bridge the other week and realised nothing was as bad as that in her life and wanting now to take small steps forward. Not heard from IAPT as yet. No plans for future employment and considering volunteer work to help others as well as her own confidence and self esteem. Does worry about future seizures. NO suicidal thoughts or psychosis. Well kempt good eye contact, few tears. Plan Agreement of care plan Advised to consider taking what IAPT offer to help deal with past issues as clearly still lingering. Will come back if begins to feel low again. Declined further appt.”[17]Ms Grace pressed the claimant hard in cross-examination by reference to that passage, suggesting to her that she (the claimant) was by the end of August well enough to take action, and pointing out that the claimant was (as was shown by the documentary evidence at page 105) on 28 August 2018 able to email the manager of an organisation called “Willowslull”, which the claimant described in evidence as a respite hospice, in the following terms: “Hi Jo I Hope you’re well. I had a phone call from Jackie last week about coming to fill out the DBS form to be able to volunteer? When would be convenient for you? Kind regards Alison smith”[18]The claimant said that the record of the nurse of the consultation of 17 August 2018 was inaccurate in saying that she (the claimant) had been not coping only for the last “few days”. The claimant said that she had told the nurse that she (the claimant) had not been coping for “many months” and that the nurse’s record was inaccurate. In fact, it plainly was, as it referred to the claimant being offered the job in “februrary”, when it was offered in October and then withdrawn in February. Partly as a result, but also recognising that a busy GPs’ practice nurse may well make errors in a note of a consultation, I did not set any store on the use of the words “last few days” in that note. What the claimant said about that period in cross-examination was (according to my notes of the hearing): “[M]y mental health reached a crisis in August but I had a lot of low points from March onwards leading up to that. I was desperate for months.”[19]It appeared to me as a matter of common sense, i.e. on a balance of probabilities, that the claimant’s recovery from a “New Episode” of “Mixed anxiety and depressive disorder” (as diagnosed on 17 August 2018; see paragraph 15 above) was unlikely to be complete in a week. I said that to Ms Grace, and the claimant subsequently said specifically that her recovery after 17 August 2018 was slow.[20]When it was put to the claimant that she was able to approach ACAS in April 2018, so that by implication she could have started the claim then, or at least within time, the claimant said these things (according to my notes, slightly tidied up): “I was intermittently functioning; I was flitting and not functioning fully; I was completing some tasks and not others. If I had thought my responsibility was not over I would have continued; I thought I was waiting to hear from ACAS: I did not think the ball was in my court. It was an error on my part. I was not able to check until October when my mind was back in the room so to speak; it was only then that I bothered to check; until that point I cannot explain why I did some tasks and not others; it was most certainly not because I was not pursuing this [i.e. this claim].”[21]I accepted all of the claimant’s oral evidence, despite seeing that she is plainly very intelligent and could have been seeking to (as it was put to her by Ms Grace in cross-examination) “over-egg the pudding”. In my view, the claimant was plainly doing her best to tell the truth, and was not over-egging the pudding. The delay after the consultation with the nurse on 28 August 2018 to the presentation of the claim was just under 7 weeks. Even the nurse who recorded that the claimant was feeling “much better this week” (see paragraph 16 above) did not record that the claimant was now better: the nurse recorded in the same passage that the claimant’s “past issues” were “clearly still lingering”. Only a week and a few days before, the same nurse had recorded (see paragraph 14 above) that the claimant “[does not] feel like talking to anyone, no confidence and self esteem low”. The nurse also recorded (see also paragraph 14 above) that the claimant was at that time “Not wanting to leave the house, feels useless and not functioning.” The nurse further recorded (see paragraph 14 above): “Wonders if meds cause low mood or maybe should change them? But too inert to do anything about it currently.”[22]Given those factors, I accepted the claimant’s evidence that22.1 she had (as I record in paragraph 12 above she wrote in her witness statement) “[only] slowly [become] more organised and in touch with reality” after 17 August 2018,22.2 she had not realised that she had heard from ACAS “due to [her] mental health issues”, and22.3 “[as] soon as [she] discovered this, [she] emailed ACAS and immediately submitted [her] claim.” The respondent’s submissions[23]Ms Grace put before me a written skeleton argument and she supplemented it with oral submissions. In paragraph 18 of her skeleton argument, she said this: “R’s position is that the [claimant’s witness] statement and accompanying evidence provided by C does not support the exercise of the court’s discretion.”[24]In paragraph 27 of her skeleton argument, Ms Grace said this: “C does not explain why she was perfectly able to correspond in April, but not able to read an email at any point between May and October, beyond stating that she was suffering with nervousness and anxiety.”[25]Among other things, Ms Grace also submitted in paragraph 31 of her skeleton argument that “on the basis of the evidence provided, C had not sought any help whatsoever from her GP or any other medical professional in the period between late August and early October. This does not resonate with C’s own account that she did not know how she survived the summer of 2018, particularly given that C is a medical professional and knows the value of seeking help when it is needed.”[26]On the question of prejudice to the respondent, Ms Grace submitted this in paragraph 33 of her skeleton argument: “While R’s employees will be able to comment on the documentary evidence, and the reality that it was simply not feasible for R to employ C until her epilepsy was well-controlled, their memory of C is likely to be impeded greatly: each of them only met her once. Therefore, in a case of this nature, a delay of over 3 months is to be afforded more weight than it would be in a case where the employer has been interacting with a claimant over a number of years.” My conclusion on the issue of whether it is just and equitable to extend time for the making of the claim[27]Not all of the factors referred to in Keeble were material. What were of most importance in my view were the reasons for the delay and the extent to which the cogency of the evidence would be affected by the delay.[28]I found the claimant’s statement of the reasons for the delay to be accurate and (contrary to Ms Grace’s submissions) that there was a factual basis which could justify the conclusion that it would be just and equitable to extend time.[29]As for prejudice to the respondent, while it is true that there is currently before the tribunal a claim of direct discrimination because of the claimant’s disability, I rather doubted that that would be the main focus of the case if it were permitted to proceed to trial. Rather, it seemed to me that the claim is for the most part about the question whether (as Judge Alliott said in paragraph 4.11 of the case management summary, at page 34) the withdrawal of the job offer was “a proportionate means of achieving a legitimate aim”. If it proceeds to trial, that question will need to be determined objectively and by reference to factors which are highly likely to have been recorded. In any event, in my view such prejudice to the respondent as would be caused by permitting the claim to proceed is not such as to require the conclusion that it is not just and equitable to extend time.[30]Weighing up the various factors and considering the claimant’s explanation, taking into account the fact that the claimant had what was classified by a relevant health professional as depression and anxiety during August 2018, and bearing in mind that the claimant moved swiftly once she realised in October 2018 that she had received the final communication from ACAS that she needed and that she needed to make her claim, I concluded that it was just and equitable to extend time for the making of that claim.[1]The respondents discriminated against the claimant on grounds of disability contrary to ss. 13 and 39(1)(a) of the Equality Act 2010 by their Occupational Health Nurse being shocked that the claimant had been offered a job as a Midwife even though she had epilepsy. Otherwise the claim of direct disability discrimination is dismissed.[2]The claim of discrimination arising in consequence of disability is not well founded and is dismissed.[1]Following the liability judgment, which was given orally with reasons in this case on 1 October 2020, the Tribunal identified the issues which arose for determination on remedy. The claimant had succeeded on one of the claims which she had brought but not on the allegation that there had been disability discrimination in relation to the decision to withdraw the provisional offer of a job or on the allegations against Dr Sayed in relation to the recommendations which she made for adjustments.[2]We asked the claimant what types of loss she argued that she should be compensated for. We explained to her the guidelines given by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] I.C.R. 318 CA by which claims for compensation are divided into three bands and said that we anticipated that she was claiming compensation for injury to feelings. She confirmed that she was not seeking a recommendation and when asked whether she was seeking to argue that there was a discreet psychological injury that had been caused by the one incident that we have found proved, she confirmed that she was not and that any medical evidence which she wished to rely on was already in the bundle.[3]Her evidence at the liability stage had been that part of the reason why she did not assert herself at the occupational health consultation appointment with Dr Sayed was because of the comment that had been made by Ms Davies which we have found to be an act of direct discrimination. When asked about that she said that she thought the impact of the things that Ms Davies said to her was the beginning of the severe mental health decline and it definitely affected her ability to challenge anything: because she felt that the job was not hers, she was not sure that anything she would say could make a difference which had not been how she felt before she went to the interview. She acknowledged that it was hard to know what she would have done or what difference it would have made and said it was how she felt but it was an unknown matter. She accepted that it was speculation and acknowledged that she was not going to be in a position to prove that specific identifiable loss resulting from the withdrawal of the job was caused by the comment made by Ms Davies. On that basis, she accepted that the only head of loss that she was claiming compensation for was injury to feelings caused by the comments of Ms Davies and she said that she was arguing that the appropriate level of compensation should be in the lower Vento band. In those circumstances the respondent agreed that they were in a position to proceed. Ms Smith was then cross examined on the relevant parts of her statement which she had identified as relevant to assessing compensation for injury to feelings. She was also crossexamined upon various texts messages between herself and her mother and various friends during the relevant time period.
The Law
[4]The law in relation to the assessment of compensation of injury to feelings can be stated fairly briefly for the purposes of this oral judgment. We remind ourselves of the case HM Prison Service v Johnson [1997] ICR 275 EAT where it was said, among other things, that the awards for injury to feeling should be compensatory rather than punitive and that, on the one hand, they should not be so low as would diminish respect for the antidiscrimination legislation but on the other they should not be excessive. We should also remind ourselves of the purchasing power of the value of the award of everyday life and balance that with the need that awards for discrimination should command public respect.[5]We also remind ourselves of the cases of MOD v Cannock [1994] IRLR 509 and Alexander v The Home Office [1988] ICR 604. The injury must be proved, our findings must be evidentially based and the injury for which compensation is claimed must result from the discrimination which has been proved.[6]As mentioned above, the well-known case of Vento (followed in Da’Bell v. NSPCC [2010] IRLR 19 EAT) set out three bands or brackets into which it was said that awards of this kind could fall. Following the judgment in Da’Bell, which increased the levels of the bands to take into account inflation since the Vento decision, the lowest band was increased to £6,000, the middle band from £6,000 to £18,000 and the highest band, reserved for the most serious cases, £18,000 and above. In De Souza v Vinci Construction (UK) Ltd [2017] I.R.L.R. 844 CA, it was held that the 2012 Court of Appeal case which applied a general uplift to damages for pain, suffering, loss of amenity, physical inconvenience and discomfort of 10% should apply to awards of compensation for injury to feelings by the employment tribunal.[7]Previously decided cases should, in any event, not be regarded as particularly helpful as a guide to an award of damages because every case is fact specific. However, the ruling in the De Souza case means that that is particularly so in relation to reports of judgments which predate 1 April 2013 (because they predate the general uplift). Following the judgment in De Souza, the Presidents of the Employment Tribunals in England & Wales and Scotland have published Presidential Guidance by which the Vento bands are updated annually. The present claim was presented on 14 October 2018 and therefore the applicable bands are 7.1. Between £25,700 and £42,900 for the most serious cases; 7.2. Between £8,600 and £25,700 for serious cases not meriting an award in the highest band; 7.3. Between £800 and £8,600 for less serious cases, such as an isolated or one-off act or discrimination Findings and conclusions[8]Submissions were made on behalf of the respondent that the claimant was now seeking to argue that significant mental decline had started with the comment made by Ms Davies when that was contrary to what she had argued previously. It was also suggested, on behalf of the respondent, that we should make sure that we only awarded compensation for the injury to feelings caused by Ms Davies’ comments. We need to identify how long the impact of those comments lasted, the degree of the impact and how long they had persisted given the intervening acts of Dr Sayed’s recommendations and the withdrawal of the job neither of which we found to be unlawful however upsetting they may have been to the claimant.[9]It was further argued on behalf of the respondent, that the texts suggest that on 9 October 2017 after the consultation meeting, the claimant was more worried about the prospect that information from the Occupational Health department at her previous employer, Scarborough Hospital, might lead to her job being withdrawn. Therefore, it was argued that we should reject the claimant’s evidence that she was concerned about Jackie Davies’ comments from that point. It was argued that the texts show anger or rather annoyance as opposed to the deep hurt and upset that she was seeking to rely on and therefore her allegation that this was the start of her mental health decline should be rejected. It was argued that one would expect more in the texts if the claimant had been as upset as she said and that the claimant’s case had changed.[10]Our conclusion on these submissions are firstly, that we do not think that it necessarily follows that the claimant would put in texts the matters that she was genuinely upset about. It depends entirely upon the circumstances and the person to whom she is talking. She said, and we accept, that she rang her mother to tell her what had happened but had not previously put that in her statement. Some might put more in texts but some would not. We do not think that it can fairly be inferred from the limited references to the meeting with Ms Davies in the text that the claimant was not upset. We have already referred to the details of some of those texts in our liability judgment because they were part of the reason why we accepted that something had happened in the meeting with Ms Davies to so change the claimant’s mood following her successful interview.[11]Our assessment of the claimant’s evidence, like Employment Judge Hyams’, is that she did not come across as “over egging the pudding”. She came across as dispassionate and quite analytical about her own state of mind.[12]We also look at the texts as a whole. It is true that she does express concern about the likely effect of information from the Scarborough Occupational Health department but we remind ourselves of the texts on page 163 which says that “Occupational Health were diabolical” and that she was “totally appalled” by them. So, the words of Ms Davies were clearly on her mind. At page 60, going forward in time to the point where the job offer was withdrawn, she seems to be referring more to the stipulations from Dr Sayed and she says that she would phone to talk to her friend, who she is notifying of the withdrawal of the job but does not want to cry about it. It appears therefore she is on the point of tears when she hears about the withdrawal and she is angry at the stipulations put forward by the Occupational Health consultant which she recognised the department were unlikely to be able to accommodate.[13]There are other texts (pages 162 and 166) dated from around the time of the withdrawal, in which she refers to the injustice making her feel sick and feeling unemployable.[14]In our experience, people do not easily express themselves in texts which are, of their nature, generally short, succinct forms of conversation in which abbreviation is used to give the key information. We accept the claimant’s evidence that she was trying to maintain her self-esteem and consider that she was being quite measured. The texts from around February 2018 do suggest that she was extremely upset by the withdrawal of the job and understandably so.[15]Her evidence was that the statements made by Jacky Davies had not come across to her as reassuring. She had come out feeling disabled and disheartened. She had not felt supported in getting a job and she felt that she had no right to contemplate applying. We accept that these were emotions she genuinely suffered.[16]Her email, at page 88, from April, talks about her being horrified as a result of the encounter and suspicious the job would “not be mine”. However, she goes on in that email to refer to Occupational Health recommendations being purposely proposed and therefore it is fair to say that she is also angry at the time she wrote the email of complaint about the recommendations that we have found not to be unlawful.[17]We were taken by the respondent to paragraph 10 in the order of Employment Judge Hyams, at page 49.6, where the claimant is recorded as having given evidence - which was accepted - that the withdrawal of the job led to a dramatic downturn in her mental health. It was argued that this was a finding of fact binding upon the parties and that the claimant was seeking to put forward evidence which was inconsistent with it. We do not think that this finding is inconsistent with there having been some mental health impact prior to that and then a dramatic downturn when the job offer was withdrawn. We also note the claimant’s comments in the statement prepared for the preliminary hearing on 29 June 2020 (page 43) that, following Ms Davies’s comments, she felt “so deflated” and began to feel her mental health decline. That was in the same statement that formed the basis of EJ Hyams findings so it does not seem to us that the claimant is changing her story about the fact that she feels her mental health began to be affected by Jacky Davies’ comments as alleged by the respondent.[18]We accept that those comments were not the whole cause of the poor mental health that the claimant experienced. Findings about the claimant’s state of health from 12 February 2018 onwards it were made in the judgment of Employment Judge Hyams. We accept that the claimant suffered more from the job withdrawal but did suffer from the first encounter. We also find that those feelings of hurt caused by Ms Davies’s comments continued following the job offer withdrawal, effectively as an undercurrent in the much larger stream of hurt feelings and mental health impact caused by the job withdrawal. This is how she put it, “Following the job offer withdrawal my mental health continued to suffer”. There is an element of doubt in her mind that she will never know whether she would have asserted herself more to try to keep the role but for the comment that Jacky Davies made.[19]We accept and find that those comments (for which the respondent is liable) were the beginning of her mental health decline which became severe following the withdrawal of the job (for which they are not). The effect of Jacky Davies’ comments did persist but, as found by Employment Judge Hyams, the dramatic downturn was caused by the job withdrawal. Had she not got the job for reasons that were connected with health and safety concerns, she would have found it easier to accept it had Jacky Davies not made the comments beforehand. That was her evidence and we accepted it.[20]By October 2018 she was feeling better. She did not suggest there were any continuing mental health consequences. However, she did say that the way that she had been met by the comment from the Occupational Health had damaged her confidence when applying for other jobs since then and will do in the future. It is part of the reason why she thought she had been foolish to try to return to midwifery.[21]It was agreed by the claimant that a lower band award would be appropriate. She gave evidence that the process of the Employment Tribunal claim had helped her find some peace because she was very glad that she had asserted her rights.[22]For a lower band case, taking into account the date on which the claim was presented, the appropriate award is between £900 and £8,600. Interest would have to be added to any award. This was, in our view, a one-off incident, which is reflected in the award being in the lower band. However, the impact of the comments had some continuing consequences. Those declined and were overshadowed by the greater impact of the withdrawal of the job but we accept that, to some extent, the mental health impact lasted for about a year. The claimant is still affected by the effect on her confidence of what was said when making applications for work. The consequences included, an element of impact on her mental health and therefore although it was a one-off incident it was one which had a relatively serious impact on the claimant although there were other matters that happened subsequently that have a more serious impact upon her. Had those matters been proved to have been unlawful, then the award would probably have been within the middle Vento band. Based upon the findings we have made we think that an award of £5,000 plus interest is the appropriate one to make in this case. JUDGMENT having been sent to the parties on 3 November 2020 and reasons having been requested in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are provided:
The Law
[1]Following the liability judgment that was given orally with oral reasons in this case on 1 October 2020, the tribunal identified the issues.[2]We asked the claimant, now that she had heard our judgment, what did she argue that should be the types of loss that she should be compensated for. In particular, we explained to her the Vento bands and said that we anticipated that the compensation for injury to feelings should be a head that she was claiming. She confirmed that she was not seeking a recommendation and when asked whether she was seeking to argue that there was a discreet psychological injury that had been caused by the one incident that we had found proved, she confirmed that she would not and that any medical evidence that she wished to rely on was already in the bundle.[3]Her evidence had been that part of the reason why she did not assert herself at the consultation appointment was because of the comment that had been made by Ms Davies and she said that she thought the impact of the things that Ms Davies said to her was the beginning of the severe mental health decline and it definitely affected her ability to challenge anything. Because she felt that the job was not hers she is not sure that anything she would say could make a difference which had not been how she felt before she went to the interview. She acknowledged that it was hard to know but said it was how she felt and it was an unknown matter. She did not act in a way that she might have done but it was speculating and she acknowledged that she was not going to be in a position to prove that specific identifiable loss resulting from the withdrawal of the job was caused by the comment made by Ms Davies. On that basis she accepted that the only head of loss that she was claiming compensation for was injury to feelings caused by the comments of Ms Davies and she said that she was arguing that the appropriate level of compensation should be in the lower Vento band.[4]She was then cross examined on the relevant parts of her statement and upon various texts.[5]Submissions were made by the respondent that the claimant was now seeking to argue that significant mental decline had started with the comment by Ms Davies when that was contrary to what she had argued previously. It was also suggested on behalf of the respondent that we should make sure that we only awarded compensation for the injury to XXX Ms Davies comments, we need to identify how long those lasted, the degree of the impact and how long they had persisted given the intervening acts of Dr Sayed’s recommendations and the withdrawal of the job, neither of which we found to be unlawful however upsetting they may have been to the claimant.[6]It was argued on behalf of the respondent that the texts suggest that on 9 October, after the consultation meeting, the claimant was more worried about the prospect that Scarborough Occupational Health information might lead to her job being withdrawn and therefore it was argued that we should essentially reject her evidence that she was concerned about Jacky Davies’ comments from that point. It was argued that the texts show anger or rather annoyance as opposed to the deep hurt and upset that she was seeking to rely on and, therefore, her allegation that this was the start of her mental health decline should be rejected. It was argued that one would expect more in the texts if the claimant had been as upset as she said and that the claimant’s case had changed.[7]Our conclusion on these submissions are firstly, that we do not think that it necessarily follows that a claimant would put in the text the matters that she was genuinely upset about, it depends entirely upon the circumstances and the person to whom she is talking. She said, and we accept, that she rang her mother to tell her and some might put more in the text but some would not. We do not think anything can be inferred from the limited amount XXX that we have already referred to in our liability judgment that the claimant was not upset.[8]As was assessed by Employment Judge Hyams, our assessment of the claimant is that she did not come across to us as overegging the pudding, she came across, in the most part, as quite analytical about her own state of mind.[9]We also look at the texts as a whole. It is true that she does express concern about the likely interaction of the Scarborough Occupational Health but we remind ourselves of the text on page 163 which says that Occupational Health were diabolical and that she was totally appalled by them, so it was clearly on her mind.[10]At page 60, going forward to the point where the job is withdrawn, she is referring more to the stipulations from Occupational Health and she says that she would phone to talk to her friend so she notified of the withdrawal of the job but does not want to cry about it. It appears therefore that she is on the point of tears when she hears about the withdrawal and she is angry at the stipulations put forward by Occupational Health.[11]There are other texts at page 162 and 166, dated from around the withdrawal, that has her referring to the injustice that making her feel sick and her feeling unemployable. People do not easily express themselves in text and we accept that she was trying to maintain her self-esteem and being quite measured. The texts from around February do suggest that she was extremely upset an understandably so by the withdrawal of the job.[12]Her evidence was that the statements made by Dr Davies had not come across to her as reassuring. She had come out feeling disabled and disheartened and she had not felt supported in getting a job and she felt that she had no right to contemplate applying. We accept that these were emotions she genuinely suffered.[13]Her email at page 88 from April talks about her being horrified as a result of the encounter and suspicious the job would “not be mine”.[14]She also goes on at page 88 to refer to Occupational Health recommendations as being purposely proposed and therefore it is fair to say that she is also angry about the recommendations that we have found not to be unlawful.[15]We were taken by the respondent to paragraph 10 in the order of Employment Judge Hyams at page 49.6 where the claimant gave evidence, which was accepted, but the withdrawal of the job led to a dramatic downturn in her mental health. We do not think that this is inconsistent with some mental health impact prior to that and we also note her comments at page 43 that she felt so deflated and began to feel her mental health decline. That is in the same statement so it does not seem to us that she is changing her story about the fact that she feels her mental health began to be affected by Jacky Davies’ comments.[16]We accept that those statements were not the whole cause of the poor mental health that the claimant experienced which findings about it were made in the judgment of Employment Judge Hyams. We accept that as the claimant described she suffered more from the job withdrawal but did suffer from the first encounter and we also find that those feelings continue.[17]Following the job offer withdrawal this is how she put it, “Following the job offer withdrawal my mental health continued to suffer”. There is an element of doubt in her mind that she will never know whether she would have asserted herself more to try to keep the role but for the comment that Jacky Davis made. We accept and find that it was the beginning of her mental health decline which became severe following the withdrawal of the job. The effect of Jacky Davies’ comments did persist but, as found by Employment Judge Hyams, the dramatic downturn was caused by the job withdrawal. Had she not got the job for reasons that were connected with health and safety concerns she would have found it easier to accept it had Jacky Davies not made the comments beforehand. That is her evidence and we accepted it.[18]By October 2018 she was feeling much better. She did not suggest there were any continuing mental health consequences. However, she did say that the way that she had been met by the comment from the Occupational Health had damaged her confidence when applying for other jobs since then and it will do in the future. It is part of the reason why she thought she had been foolish to try to return to midwifery.[19]It was agreed by the claimant that a lower band award would be appropriate and she gave evidence that the process of the employment tribunal claim had helped her find some peace because she was very glad that she had asserted her rights and we hoped that that proves to be the case.[20]The appropriate band, taking into account the date on which the claim was presented, the appropriate award is between £900 and £8,600 to which would have to be added interest.[21]It was, in our view, a one-off incident but it had some continuing consequences, those lasted at least a year. She still is affected by what was said when making applications for work. The consequences included an element of impact on her mental health and therefore, although it was a one-off incident, it was one which had a relatively serious impact on the claimant although there were other matters that happened subsequently that had a more serious impact upon her. Had those matters been proved to be unlawful then the award would probably have been within the middle Vento band but as they are we think that an award of £5,000 plus interest is the appropriate one to make in this case.