Ms L WylesClaimantCygnet Health Care LtdRespondent
Before
Employment Judge K ArmstrongIn person for claimantMs R Senior (instructed by Counsel) for respondentDate 2 August 2024
REASONS
Conclusions
[1]These reasons reflect the decision given orally at the hearing on 19 July 2023. They are not a verbatim record of that decision. The claimant was permitted to audio record that hearing as a reasonable adjustment. These written reasons will not exactly reflect that recording but are an accurate record of the reasons for my decision.[2]In her claim form submitted on 9 December 2022 the claimant brought claims for protected disclosure detriment, automatic unfair dismissal (protected disclosure) and indirect disability discrimination.[3]At a previous case management hearing on 27 April 2023 the issues in the claimant’s protected disclosure (or ‘whistleblowing’) claims were identified save that the claimant indicated an intention to make an application to amend her claim to provide further particulars of the dates and content of alleged protected disclosures made during 2021 and 2022.[4]At the same hearing, the claimant requested some time to file further particulars setting out the legal basis for her disability discrimination claim.[5]Directions were made for the claimant to provide any application to amend her claim by 8 June 2023, and at the same time to explain why the additional information was not included in the claim form.[6]Unfortunately, following the hearing on 27 April 2023 an incorrect copy of the Case Management Order was sent to the parties. This presented particular challenges to the claimant given her disabilities (autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD)). The correct copy was provided to the parties on 16 June 2023.[7]On 27 June 2023 the claimant provided a draft amended claim form. There was no separate document explaining why the additional information was not included in the original claim form. No issue was taken by the respondent with the late filing of the application given the issues with the delay in providing the correct case management order. Although not explicitly dealt with at the hearing, I granted additional time for the application to be made and proceeded to consider the amendment application at the hearing on 19 July 2023. Amended claim[8]The draft amended particulars of claim comprise 223 paragraphs on 34 pages. The original particulars of claim comprise 25 paragraphs on 7 pages. The claimant confirmed that the first 149 paragraphs of the proposed amendment are narrative, and the basis or substance of her claim is set out at paragraph 150 onwards. She sought to submit the document as a substitution for the original details of claim, although there was some overlap between the two documents. Unfortunately, the differences were not entirely clear from the proposed draft as the claimant had attempted to submit them with track changes but this is not visible on the version submitted. It was however apparent that there are a significant amount of changes.[9]I address the application to amend the protected disclosure detriment and automatic unfair dismissal claims first, then the application to amend the disability discrimination claim.[10]In doing so, I take into account the factors identified in the presidential guidance on case management, and the case law referred to by the parties in the course of submissions.[11]I heard representations from Ms Wyles and Ms Senior before making my decision, and I took everything said into consideration, although I don’t repeat it in detail here. Protected disclosure detriment and automatic unfair dismissal claims The nature of the proposed amendment:[12]At the previous case management hearing, it was envisaged that the proposed amendment would include particulars of a relatively limited number of disclosures during 2021 and possibly a small number of further disclosures during 2022.[13]In the amended claim form a significant number of further alleged disclosures have been identified. It is not easy to identify all the disclosures but it appears there are something in the order of 24 further disclosures now alleged (although the respondent’s representative identifies 43), in addition to the original eight set out on the claim form and identified in the previous list of issues.[14]The subject matter of the alleged disclosures has also been expanded. The disclosures set out in the original claim form all relate to the respondent’s resuscitation and incident management policies and practices. Some of the further alleged disclosures appear to relate to issues regarding managing autism, covid management and issues regarding management of particular patients as well as resuscitation and incident management. The claimant submitted that the autism aspects did not relate to her whistleblowing claim and that the covid management and specific patient issues were an expansion of information regarding her concerns about resuscitation and incident management. In any event, the claimant acknowledged that this was a provision of further factual information or background.[15]The amended claim form identifies something in the order of 18 detriments, compared to the original five detriments identified at the previous case management hearing.[16]There are also a significant number of further individuals identified as being involved in the claim either by way of receiving disclosures or being the subject of those disclosures, increasing from six identified individuals in the original claim to 13 in the amended claim.[17]I readily accept what the claimant says in that the detail in the proposed amended claim was provided in an attempt to be thorough rather than prolix, wordy, or to ambush the respondent with additional information.[18]However, the role of the Tribunal is to do justice to both parties, and also to deal with cases in a proportionate manner. There is a large amount of additional information in the proposed amended claim. I consider that the further information does amount to new claims – there are new facts pleaded, new disclosures regarding new issues and to new people, and new detriments pleaded. Balance of hardship and prejudice to the parties[19]In light of the above, to allow the amendments in full or in part would overcomplicate the issues in this claim and produce significant challenges to the respondent in responding to the claim and for the Tribunal in identifying (and therefore determining) the issues between the parties.[20]The claimant makes the submission that although this information is new to the Tribunal, it is not ‘new’ to the respondent in that it relates to incidents which in fact (on her account) have already happened in the past and therefore there is no prejudice to the respondent in responding to them. I understand the point, however, investigating the allegations within Tribunal proceedings, identifying and providing the information to respond to these allegations in terms of documents and witnesses, and determining and setting out a legal response to them, will take considerable time and expense.[21]On the other hand, in refusing the application to amend, the claimant’s claim remains as it stands on the original claim form and as identified at the previous case management hearing. The claim in that format is clear.
Law
[22]Including further dates of disclosures and further alleged detriments is unlikely to substantially affect the claimant’s remedy if the claim is successful, or the likelihood of the claim succeeding. I do take into account that there is risk that the Tribunal at a final hearing might not find some of the pleaded disclosures and detriments are made out, and that a Tribunal conversely might have found some of the proposed amended incidents to be established. But balancing this against the need for clarity in the claim, the challenges to the respondent of responding, and in fact the benefit to the claimant of having a clearly identified claim, I am satisfied that the balance of prejudice falls against permitting the amendment.[23]I have considered whether the amendment could be limited to identification of dates of disclosures during 2021. However, I am not satisfied that this would be in the interests of justice. It is very difficult to extricate those dates from the proposed amendment without involving the issues of attempting to identify what if any further detriments are alleged to flow from them, and involving further individuals, and expanding the factual matters which the disclosures relate to. Also, I consider that the risk of prejudice to the claimant is minimal as these disclosures pre-date the disclosures already identified. Time limits[24]The proposed new claims are now significantly out of time. If I were to allow the amendment I would have allowed it subject to a condition that the issue of time limits would be determined at the final hearing. This affects the merits of the amended claims, in particular the alleged disclosures in 2021. Time limits therefore were a factor that weighed in the balance against allowing the amendment. Timing and manner of application for amendment[25]As set out above, the amendment application was made following directions for any such amendment at the last hearing, but went beyond what was envisaged at that hearing.[26]The claimant did not set out in writing her reasons for not including these details in the original claim but I allowed her to do so orally at this hearing. She referred to submissions she had made at a previous hearing and that she did not realise that she would need to repeat those on this application. In summary, the claimant stated that since lodging her claim she has looked at documents and emails she holds again, and identified a number which she previously did not consider to be protected disclosures that she now does. She also stated that her understanding of the law and process has improved and therefore this has led her to set out the claim as now pleaded.[27]Again, I accept that the reason for the amendment is due to the claimant’s evolving understanding of the law and procedure rather than any deliberate attempt to ambush the respondent. However, I am not satisfied that this is a sufficient reason to permit the amendment when considering all the factors in the case as set out above. In particular, the claimant demonstrated a clear understanding of the nature of her whistleblowing claim at the time of lodging her claim, as set out in the original claim form. She now relies on further facts which were available to her at the time of the original claim. Conclusion regarding whistleblowing claims
Conclusions
[28]The application to amend the claimant’s claims for protected disclosure detriment and automatically unfair dismissal is refused. Indirect disability discrimination Nature of the amendment[29]At the previous case management hearing the claimant requested time to prepare amended particulars of claim to set out the legal basis for her disability discrimination claim. In particular, to consider whether an amendment would be sought to add a claim for failure to make reasonable adjustments and/or discrimination arising from disability and if not to set out the provision criterion or practice (PCP) and particular disadvantage relied on in respect of the indirect disability claim.[30]No amendment is sought to add a claim for discrimination arising from disability or failure to make reasonable adjustments. Since the last hearing the claimant has provided medical information and a disability impact statement and the respondent has confirmed that it does not dispute that the claimant is disabled.[31]The original claim clearly identifies an indirect disability discrimination claim. It identified the claimant’s disability (ASD and ADHD). It sets out that the claimant is at higher risk of stress because of autism and significantly disadvantaged by the respondent’s failure to conduct a stress risk assessment (at paras 13 and 24) and refers to her absence due to stress at work (at para 27).[32]The proposed amendment identifies the PCPs relied on (the respondent’s stress management approach, disability discrimination policy, and policy writing standards). It also clarifies the substantial disadvantage claimed by the claimant and the reason for that.[33]I am therefore satisfied that this is not a new claim but clarification of an existing claim. Balance of hardship and prejudice[34]As there is already an indirect discrimination claim before the Tribunal, and the proposed amendment provides clarity as to the basis for that claim, there is limited prejudice to the respondent in having to respond to the amended claim. The claimant has already established and the respondent has quite rightly accepted that she is disabled. The issues related to this claim are therefore clearly defined and relatively limited. The further detail set out in the amendment is unlikely to significantly increase the amount of time required to respond to and determine the claims. On the other hand the prejudice to the claimant in not permitting her to identify the particular PCPs and clarify the particular disadvantage she faces would result in her claim being less clear for the Tribunal. Merits of the claim[35]I make no finding as to the overall merits of the indirect disability claim but taken at its highest on the pleaded amendment there appears to be a legally arguable case. There is a need to case manage the claim to identify the issues but this will be achievable on the basis of the amended claim. (Case management was completed successfully following this decision at the hearing on 19 July 2023). Timing and manner of application for amendment[36]The claimant’s reasons for amending the claim are similar to those set out above in respect of the whistleblowing claim. However in respect of the disability discrimination claim, rather than reconsidering the evidence and identifying further facts relied on, the claimant has taken time to formulate her case on the same basis as originally set out, but with some further detail to clearly match up her claim with the statutory tests. The proposed amendments at paragraphs 206-217 do this in a succinct and manageable format. Time limits[37]As this is an amendment to an existing claim as opposed to an amendment to bring a new claim, the issue of time limits will be dealt with at the final hearing on the basis that the claim was brought on the date that the ET1 was presented.
Conclusion
[38]I grant permission to amend the claimant’s claim for indirect disability discrimination by inserting the new paragraphs 206-217 inclusive at the end of the original details of claim.[39]I refuse permission to include paragraph 218 which states that further incidents of discrimination will be provided in the claimant’s witness statement. The claimant’s claim needs to be identified today.[40]I refuse permission to amend the claim to add paragraphs 219, 220 and 223. These are the same in content as paragraphs 24 and 25 in the original particulars of claim and it would unnecessarily complicate matters to amend them.[41]I allow permission to include paragraphs 221 and 222 regarding the ACAS uplift. This is an issue which would be considered by the Tribunal in remedy in any event and it is of benefit to the parties for it to be set out clearly at this stage.
Introduction
[1]This is our judgment on remedy in this case. The claimant’s claim of indirect discrimination related to the application of the respondent’s stress management practice including the absence of, or failure to apply, any stress management policy was successful. The claimant's other claims were dismissed.[2]The issues for us to determine are those set out under the heading “Remedy for discrimination” attached as an appendix to our liability judgment. The remedy hearing[3]The remedy hearing was listed for one day. The claimant provided a witness statement and gave evidence. The claimant also provided additional witness statements from her mother, Theresa Wyles; her friend, Kelly Dobson; and a volunteer who has been supporting the claimant, Christine England. Those witnesses did not attend to give evidence. We have read their witness statements but they are about the impact of the respondent’s actions on the claimant. We give them less weight as they did not attend to give evidence, but we observe that in any event the claimant is in the best position to explain the impact of the respondent’s actions on her.[4]The claimant represented herself and we again note the competent way in which she did so. The respondent was represented by Mr Proffitt who was not at the liability hearing. We are grateful to Mr Proffitt and the claimant for the helpful way they presented their cases.
Findings of fact
[5]We only make such findings of fact as are necessary for our judgment on remedy. Where facts are disputed, we have made our decision on the balance of probabilities. Where necessary, we also rely on the findings in our judgment on liability Financial losses[6]The claimant's employment with the respondent ended on 8 July 2022. At the end of her employment, the claimant was earning £38,000 per year. The claimant’s undisputed calculation of that figure means that she was earning £506.84 net per week. The respondent was contributing £953.52 per year to her pension. This is £18.34 per week.[7]The claimant asserted that she could expect an £8,000 per year pay rise through her employment at the respondent as this is what she had achieved in her first year. We reject this assertion. The claimant projected this from her pay rise in her first year and referred to pay rises other staff had got. Those pay rises were based on changes in jobs in respect of other staff and the claimant’s pay rise had been based on the amount of responsibility she had and the impact she had had on the hospital.[8]We find that it was very unlikely that this pay rise would be repeated annually on the basis of the claimant's evidence. She may well have applied for other roles and been promoted, but there was no evidence that this was what the claimant intended and no evidence of any regular or planned pay rises. In our view, the claimant was likely to remain on £38,000 for the immediate future subject to any unforeseen discretionary pay rises.[9]The claimant started looking for work before the end of her employment. She handed in her notice on 8 April 2022 and we have already found that the main reason for that was that she believed that the respondent was failing to adequately address her concerns about the resuscitation policy and training.[10]The claimant applied for the job of LeDeR Review Facilitator (a non-clinical job in the NHS associated with nursing) on or around 23 May 2022 and the claimant was offered this job on 1 June 2022. The job was part time (18.75 hours per week) on NHS Agenda for Change Band 6.[11]That job was withdrawn because of a change in national policy, for reasons wholly unconnected with the claimant, on 2 August 2022. The claimant supported herself on her savings through this period.[12]The claimant then applied for universal credit and was awarded £334.91 per month from 16 September 2022. On 24 December 2022 the claimant was found by the DWP to have limited capability for work (i.e. she was not well enough to be required to look for work but she was well enough to be required to take steps to prepare for work in the future).[13]The basis of the finding that the claimant had limited capability for work was based on the claimant's health conditions of Autism Spectrum condition/disorder, Attention Deficit Hyperactivity Disorder, anxiety and depression.[14]The claimant applied for another job on 14 April 2023 – this was a job working in a field relating to autism. That application was unsuccessful. The claimant applied for a further job on 29 October 2023 working for Cloverleaf Advocacy and she was successful in that role. The claimant took the role, from 12 February 2024, on 30 hours per week, hoping she would be able to increase her hours, but did not feel well enough to do so. The claimant said she was struggling even with the 30 hours.[15]The claimant agreed that she was now paid around £750 per month less than she had been. The claimant's net wages varied from month to month while working for the respondent and in her new role but were in the region of £2200 and £1442 respectively. We therefore find that since 12 February 2024 the claimant’s income from her wages if £750 per month on average less than it was when she was working for the respondent. This does not include employer’s pension contributions.[16]The claimant let her registration as a nurse with the NMC lapse from 1 February 2024. We find that this was because the claimant could no longer envisage returning to that role. She said that she would require a great deal of therapy to do so, which was not realistically available to her. We accept the claimant's evidence that she would find returning to nursing too traumatic at this time. Health[17]The claimant first went off sick with stress (as far as is relevant to this judgment) on 29 March 2022. The claimant saw her GP on 5 April 2022 and at that point the claimant was hoping to return to work quickly. She is recorded as saying to her GP “ongoing organisation culture is detrimental to my health. Away from work my mental health is generally good”.[18]On 19 April 2022 the claimant had a further consultation with her GP. She had handed in her notice by then and is recorded as saying in her GP notes that she was waiting for updates from her union and the CQC about whistleblowing.[19]On 24 May 2022 the claimant is recorded as reporting to her GP that her work stress and anxiety was related to her whistleblowing case. She says that the respondent is responsible for her mental ill health.[20]There are no other medical records relating to the period immediately after the claimant's employment ended and the claimant said that she was well enough to look for work. In fact, the claimant was actively pursuing a job as discussed above.[21]However, it is clear, and we find, that the claimant was continuing to be unwell and has continued to be unwell up to the remedy hearing.[22]We have considered medical evidence from the claimant's GP and psychotherapist. It is not proportionate to set it out in detail. We have also considered the claimant’s witness statement from the liability hearing and the impact statement the claimant has produced for this remedy hearing. We make the following findings.[24]The claimant continues to be very unwell by reason of anxiety and depression. This has had physical impacts on her including weight loss as well as low motivation to look after herself.[25]However, we also find that the main cause of the stress, as is apparent from the medical evidence and the claimant’s own witness statements, is the respondent’s failure – or rather the claimant's belief or perception of the respondent’s failure – to address her patient safety concerns together with an ongoing concern for the safety of patients[26]This anxiety and stress has undoubtedly contributed significantly to the claimant's difficulty in finding full time work on the same salary.[27]The anxiety and stress arose during the course of the claimant's employment. We have found, in our liability judgment, that the way the respondent managed stress at work – the ad hoc stress management approach – did not effectively mitigate or reduce the claimant's stress. We also find, therefore, that part of the reason that the claimant remained unwell and has had difficulty in finding full time work is because of the respondent’s ineffective stress management policy that was applied to the claimant.[28]The claimant has set out in some detail the impact of the respondent’s actions on her psychological wellbeing. We have already referred to the medical evidence.[29]We accept the evidence the claimant sets out in her impact statement about how she is feeling and has felt since her employment with the respondent. However, it is clear that the main impact on the claimant's wellbeing has been the concerns that she reported and the respondent’s perceived lack of response to them. That this was the main cause of the claimant's stress and her ongoing ill-health is reflected in the fact that this was the reason for her resignation and formed the main content of her witness statement in the liability hearing.[30]However, the claimant did also say in her statement for the remedy hearing “Because concerns I reported were not apparently being meaningfully addressed, each time a new issue came to light there was a cumulative effect on the level of stress I was experiencing. Rather than properly assessing the stress I was reporting to establish the causes; the management approach was to distance me from the issues. They perceived my proximity to the concerns I had raised to be the cause of my stress, only adding to my feelings of frustration as the fundamental concerns remained apparently unaddressed”.[31]In oral evidence, the claimant said that the reason she reacted so badly to the stress from the respondent not addressing her concerns (in her perception) was because her stress was not managed well.[32]We find that the claimant has experienced adverse effects of stress including losing motivation to look after herself properly, losing weight, experiencing symptoms of anxiety, and feeling like she can no longer work as a nurse.[33]However, we find that the majority of those issues arise from the claimant's concerns about her patients and her concerns about the respondent’s patient care, policies and their responses to that. The failure by the respondent to have and apply a structured stress management policy had a much smaller impact on the claimant's health and wellbeing. Law[34]The starting point for deciding what remedy the claimant is entitled to is section 124 Equality Act 2010. This says:(1) This section applies if an employment tribunal finds that there has been a contravention of a provision referred to in section 120(1).(2) The tribunal may— (a) make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate; (b) order the respondent to pay compensation to the complainant; (c) make an appropriate recommendation.(3) An appropriate recommendation is a recommendation that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect [on the complainant] of any matter to which the proceedings relate …(4) Subsection (5) applies if the tribunal— (a) finds that a contravention is established by virtue of section 19 [or 19A], but (b) is satisfied that the provision, criterion or practice was not applied with the intention of discriminating against the complainant.(5) It must not make an order under subsection (2)(b) unless it first considers whether to act under subsection (2)(a) or (c).(6) The amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by the county court or the sheriff under section 119.(7) If a respondent fails, without reasonable excuse, to comply with an appropriate recommendation …, the tribunal may— (a) if an order was made under subsection (2)(b), increase the amount of compensation to be paid; (b) if no such order was made, make one.[35]In this case, the claimant was successful under section 19 so that we must first consider whether any discrimination was unintentional and, if so, whether to make a declaration and/or a recommendation before going on to consider whether to award compensation.[36]In JH Walker Ltd v Hussain and others [1996] IRLR 11 cited in BMA v Chaudhary [2007] EWCA Civ 788, Mummery J said 'intention' in this context signifies the state of mind of a person who, at the time when he does the relevant act (ie the application of the requirement or condition resulting in indirect discrimination),(a) wants to bring about the state of affairs which constitutes the prohibited result of unfavourable treatment on [the relevant] grounds; and(b) knows that that prohibited result will follow from his acts.[37]Section 119 Equality Act 2010 says, as far as is relevant, (2) The county court has power to grant any remedy which could be granted by the High Court(a) In proceedings in tort(b) On a claim for judicial review … (4) An award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis).[38]In Chagger v Abbey National [2009] EWCA Civ 1202 it was held that(a) the purpose of compensation is to put the claimant in the position she would have been in, as far as possible, had she not been discriminated against. This can include reducing an award to take account of the possibility that, for example, employment might have ended at some point in any event(b) Losses must flow directly and naturally from the discriminatory act(c) Compensation will not be paid where there has been a break in the chain of causation or the claimant has unreasonably failed to mitigate her losses.[39]In respect of an act which might break the chain of causation, we were referred to Corr v IBC Vehicles [2008] ICR 372 in which Lord Bingham said “The rationale of the principle that a novus actus interveniens breaks the chain of causation is fairness. It is not fair to hold a tortfeasor liable, however gross his breach of duty may be, for damage caused to the claimant not by the tortfeasor’s breach of duty but by some independent, supervening cause (which may or may not be tortious) for which the tortfeasor is not responsible.[40]We also refer to an extract from Essa v Laing Ltd [2004] ICR 746 in which Clarke LJ said “In all the circumstances I agree with Pill LJ that there is no need to add a further requirement of reasonable foreseeability and that the robust good sense of employment tribunals can be relied upon to ensure that compensation is awarded only where there really is a causal link between the act of discrimination and the injury alleged. No such compensation will of course be payable where there has been a break in the chain of causation or where the claimant has failed to take reasonable steps to mitigate his loss”.[41]It is a question of fact for us as to whether losses flow naturally and directly from the discriminatory act, or if there is an intervening act that breaks the chain of causation.[42]The Court of Appeal gave guidance on appropriate awards for injury to feelings at paragraph 65 of the well-known case of Vento v Chief Constable of West Yorkshire Police (No.2) [2003] IRLR 102 “Employment tribunals and those who practise in them might find it helpful if this court were to identify three broad bands of compensation for injury to feelings, as distinct from compensation for psychiatric or similar personal injury.(i) The top band should normally be between £15,000 and £25,000. Sums in this range should be awarded in the most serious cases, such as where there has been a lengthy campaign of discriminatory harassment on the ground of sex or race. This case falls within that band. Only in the most exceptional case should an award of compensation for injury to feelings exceed £25,000.(ii) The middle band of between £5,000 and £15,000 should be used for serious cases, which do not merit an award in the highest band.(iii) Awards of between £500 and £5,000 are appropriate for less serious cases, such as where the act of discrimination is an isolated or one-off occurrence. In general, awards of less than £500 are to be avoided altogether, as they risk being regarded as so low as not to be a proper recognition of injury to feelings. 66. There is, of course, within each band considerable flexibility, allowing tribunals to fix what is considered to be fair, reasonable and just compensation in the particular circumstances of the case. 67. The decision whether or not to award aggravated damages and, if so, in what amount must depend on the particular circumstances of the discrimination and on the way in which the complaint of discrimination has been handled. 68. Common sense requires that regard should also be had to the overall magnitude of the sum total of the awards of compensation for nonpecuniary loss made under the various headings of injury to feelings, psychiatric damage and aggravated damage. In particular, double recovery should be avoided by taking appropriate account of the overlap between the individual heads of damage. The extent of overlap will depend on the facts of each particular case”.[43]These bands have been subject to various uplifts and updated amounts are now provided in Presidential Guidance – generally changed each year.[44]For the claimant's claim, the relevant guidance in the case is for claims presented on or after 6 April 2022 and it provides: “…a lower band of £990 to £9,900 (less serious cases); a middle band of £9,900 to £29,600 (cases that do not merit an award in the upper band); and an upper band of £29,600 to £49,300 (the most serious cases), with the most exceptional cases capable of exceeding £49,300”.[45]When considering an award for injury to feelings, the question for us is what the impact of the discriminatory act has been on the claimant. The purpose is to compensate the claimant, not to punish the respondent. It is a matter for us on the facts before us, but we must have some evidence on which to base the award. The lower band is not only for one off acts – there is flexibility in the bands for us to award what we consider appropriate (Komeng v Creative Support Limited [2019] UKEAT/0275/18). ACAS Uplift[46]Section 207A (2) Trade Union & Labour Relations (Consolidation) Act 1992 provides that (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 concerns a 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%.[47]The relevant Code in this case is the ACAS code of practice on Disciplinary and Grievance procedures. It is not disputed that section 207A applies to these proceedings. Interest[48]Interest is payable on awards in discrimination cases under the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996. We have discretion whether to award interest or not but if we do so, interest will be simple interest at 8% per year. For injury to feelings awards, interest will run from the day of the discriminatory act t the date of the calculation of the award and for financial awards, interest will run from the mid-point between the discriminatory act and the date of calculation of the award. If we consider that calculating interest on this basis would cause serious injustice, we can calculate interest for different periods Conclusions Declaration[49]The primary remedy is declaration under section 124 Equality Act 2010. We have made a declaration in our liability judgement. We do not make a further declaration that the respondent has discriminated against the claimant. Recommendation[50]We find that the respondent did not intentionally discriminate against the claimant within the meaning of section 124 Equality Act 2010. We have found that Ms Barnes was trying to do her best for the claimant.[51]However, as the employment relationship has ended, there are no meaningful or useful recommendations that we can make that will obviate or reduce the impact of the discrimination on the claimant. We do not, therefore, make a recommendation and in our judgment it is just to make a financial award to compensate the claimant for the impact of the discriminatory acts of the respondent. Financial losses[52]The claimant left work because of her perception that the respondent had failed to address her concerns and this had become intolerable – it had a significant impact on the claimant’s health. This was the main reason for the end of the claimant's employment.[53]However, in our judgment, had the respondent not discriminated against the claimant by applying its PCP of manging employee stress on an ad hoc basis, it is possible that the impact of the claimant's perception of the respondent’s actions on her heath could have been mitigated. There is a possibility that a more structured and effective management of the claimant’s stress by the respondent would have enabled the claimant to remain employed, despite her concerns about the respondent’s responses to her concerns.[54]There is therefore a causal link between the discrimination and the claimant’s job loss. To be clear, there were at least two causes – the primary cause was the claimant's reaction to her perception of the way the respondent addressed her concerns. The second cause was the respondent’s failure to adequately manage or help the claimant manage her work related stress, which lead ultimately to the claimant being too ill to remain employed. Although the discriminatory application of the PCP was not the only cause of the claimant leaving her job, it is a cause so that in our judgment the claimant’s job ending is a natural and direct consequence of the respondent’s discrimination.[55]In assessing the extent to which the application of the discriminatory PCP contributed to the end of the claimant's employment, we apply the principles in Chagger.[56]The claimant's focus during her employment, when bringing her tribunal proceedings and at the liability hearing was the protected disclosures and the impact on her of the respondent’s response to them. This is clear from the claimant's witness statement in the liability proceedings, the claim form and the way the claim was advanced.[57]In our judgment, there is a limited chance that the application of a formal stress management policy, including accounting for the claimant's disabilities, would have kept the claimant in long term employment with the respondent.[58]Balancing all the factors and taking into account that a structured stress management policy might only have extended the claimant's employment, rather than enabling continued long term employment, we apply a 90% reduction to the financial award to recognise our view that even a nondiscriminatory stress management policy is unlikely to have been 100% successful in keeping the claimant in employment.[59]We next go on to consider the period for which and the amount of which we should award compensation for financial losses. There are a number of matters to consider: the claimant’s decision not to go back into nursing, the claimant's decision to work part-time hours, the withdrawal of the LeDeR job on 2 August 2022 and the time it is likely to take for the claimant to be able to reasonably obtain a salary of £38,000 per year. We also consider the claimant's assertion, set out in her schedule of loss, that she could have expected a pay rise of £8,000 per year through her employment with the respondent.[60]In respect of the claimant’s decision not to go back to nursing, we have found that the claimant's decision not to go back to clinical nursing was because it was too traumatic for her to do so. This was not because of an act of the respondent that we have found to be unlawful. However, in our judgment given the claimant's health it was a perfectly reasonable decision. The claimant has not unreasonably failed to mitigate her losses by deciding not to go back to nursing.[61]Similarly, the claimant's decision to work part time is a decision taken for the benefit of her health – she was, and remained at the remedy hearing, too unwell to return to full time work. This is not entirely because of an act of the respondent that we have found to be unlawful. However, we have made our decision on the Chagger reduction above and the claimant's inability to return to full time work ins included in that assessment.[62]However, this was also a reasonable decision for the claimant, given her health, and the claimant has not unreasonably failed to mitigate her losses by working part time. In fact, given that the claimant was not required to look for any work to obtain benefits because of her health, it would be surprising if we were to find that she had unreasonably failed to mitigate her losses by at least doing some work,[63]We next consider the withdrawal of the LeDeR job. Having reviewed the cases referred to above and considered the matter as an “industrial jury”, in our judgment the withdrawal of the job did not break the chain of causation of the claimant's losses. There was no intervening act that effectively started the losses again. It was just an unfortunate situation for the claimant that the job she hoped and expected to start ceased to exist. The claimant’s circumstances before the offer was withdrawn were the same as they were after and in no reasonable sense can the withdrawal of the job offer be said to break the chain of causation and we find that it did not.[64]Finally, we consider the time it is likely to take the claimant to obtain the same salary that she was receiving with the respondent.[65]The claimant asserted that she would need to obtain a degree which would take three years, and she was also claiming as compensation the cost of that degree.[66]In our view it is not necessary to obtain a degree – and certainly not these days to take time out of work and privately fund a full time degree – to achieve a similar level of remuneration. The claimant is progressing in her new job and the evidence we have seen demonstrates that the claimant is a committed and enthusiastic person who is able to focus on achieving her goals. We cannot, of course, predict the future and this exercise requires a high degree of speculation. However, the claimant's reference to a three year degree is useful and doing the best we can we think that there is a reasonable possibility that the claimant will be in a position to earn the same or a similar amount in around 4 years in total from the date of termination of her employment.[67]We therefore award loss of earnings for 4 years, but reduced by 90% to reflect the fact that the discriminatory act was not the sole or main cause of the end of the claimant's employment. This assessment takes account of the restrictions that claimant has put on her search for work and also includes the possibility that the claimant's employment might have ended at some point even if a non-discriminatory stress management policy had been applied.[68]We award the following sums:[69]From 8 July 2022 until 16 September 2022 the claimant had no income. Her total losses were £506.84 per week wages and £18.34 loss of pension contributions totalling £525.18. This is a period of 10 weeks, resulting in losses of £5251.80.[70]From 16 September 2022 until 12 February 2024 the claimant’s income was £334.91 per month, which is £77.29 per week. Although the claimant’s universal credit increased each April, we have disregarded that because in our view it is likely that, although we have rejected the claimant's assertion that she would get £8000 per year pay rise, it is reasonable to account for a cost of living type pay rise. We have therefore accounted for this by ignoring the cost of living pay rise in the claimant’s universal credit. The claimant’s losses for this period are £447.89 per week for 73.5 weeks, which is £32,919.92[71]From 12 February 2024 until 7 July 2026 (four years after the claimant's employment ended) the claimant's losses were £750 per month for her wages plus £18.34 per week pension contributions as we have found above. This is £191.42 per week for a total of 125 weeks, giving a total of £23,927.50[72]Together, these losses amount to £62,099.22.However, we have found that 10% of these losses are attributable to the respondent’s discriminatory acts so that the compensation for loss of earnings payable to the claimant is £6,209.92.[73]We consider next the injury to feelings award.[74]In our judgment, the claimant has experienced injury to feelings. The medical evidence is clear about that. However, as we have discussed already the majority of the impact on the claimant has been from the way she perceived the respondent responded to her concerns.[75]The failure to apply a non-discriminatory stress management practice has, however, impacted on the claimant. It was apparent from the claimant’s grievance that by this time this was a concern to her. However, we repeat our views above that the claimant; main focus was on the response of the respondent to her concerns.[76]It is always very difficult to separate out the impact of the discriminatory act from everything else the claimant has experienced and it is, again, a highly speculative exercise. However, in our judgment the impact on the claimant of the discrimination that we have upheld falls around three quarters of the way up the lower band. It is not a one off act, but it was not intentional, Ms Barnes was genuinely seeking to help the claimant and the claimant, at least initially, recognised that Ms Barnes had been supportive. It was only latterly that the discriminatory PCP had an impact on the claimant as can be seen from her grievance. We therefore make an award for injury to feelings of £8,000. Acas uplift[77]We consider next whether to increase the award for failure to apply with the Acas code of practice on disciplinary and grievance procedures.[78]We found, in our liability judgment, that the respondent failed to properly address the claimant's grievance about the respondent’s failure to properly address her stress (see paragraphs 198 to 211 of our liability judgment). This grievance was in our judgment related to the matters that formed the claimant’s successful discrimination complaint.[79]Paragraph 40 of the Acas code says that employers must decide what action to take following the grievance, This necessarily requires that an employer addresses the aspects of an employee’s grievance.[80]In our view the respondent has failed to fully comply with this. It is not, however, a wholesale failure to comply with the code of practice but the respondent has not provided a reason for failing to deliver a full outcome.[81]In our view it is just to award a 10% uplift in the claimant’s award.[82]We apply this to the total award of £14,209.92 and award an uplift of £1420.99. Interest[83]Finally, we consider an award of interest. We award interest on the compensation before the application of the Acas uplift.[84]Interest is payable on the injury to feelings award at 8% per day from the date of discrimination and the date of the remedy hearing. We agree with the respondent that interest must run from the date of termination of employment to the date of the remedy hearing which is a period of 729 days. The interest is therefore calculated as 729 x 0.08 /365 x £8000 = £1278.25[85]Interest on financial losses applies only to losses up to the date of the remedy hearing and is calculated on the midpoint between the date of termination and the date of the remedy hearing. This gives interest for 365 days.[86]Past losses (up to the date of the remedy hearing) are ten percent of (£5251.80 + £32,919.92+ (20.5 weeks at £191.42per week)) which gives £4209.58. Interest on this figure is therefore 365 x 0.08 / 365 x £4209.58= £336.77.[1]At the start of the remedy hearing the claimant made an application for a preparation time order. The basis of her application was as follows.[2]The respondent’s conduct was disruptive in respect of their failure to disclose relevant documents.[3]Specifically, the respondent had failed to disclose documents relating to the respondent’s freedom to speak up guardian. The claimant had requested copies of all the concerns that she had raised with the freedom to speak up guardian and these were never disclosed.[4]It was not the claimant's case that she was relying on any of her reports to the freedom to speak up guardian as protected disclosures, but that the documents would have provided a more detailed context for the claimant's concerns.[5]It is relevant that the claimant initially put her complaint about this as related to her pursuit of a Subject Access Request under Data Protection provisions.[6]That Mr Wilmott was obstructive in cross examination.[7]In respect of the allegation about Mr Wilmott, the claimant relies on paragraph 55 of our liability judgment in which we say, “On a number of occasions, we found Mr Wilmott to be evasive in his oral evidence and sometimes answers had to be dragged out of him”.[8]In the same paragraph we note that Mr Willmott had failed to disclose a file note relating to the minutes of the resuscitation committee meeting of 13 January 2022.[9]However, in paragraph 56 we go on to make findings about the matter in dispute and acknowledge that Mr Wilmott’s apparent evasiveness might have arisen from the passing of time and his numerous responsibilities.[10]That the respondent’s defence to the indirect discrimination claim had no reasonable prospects of success.[11]The basis of this application was that workplace stress, the factual basis underlying the claimant’s indirect disability discrimination claim, is a common risk and employers have a legal obligation to protect employees form stress, or the negative health impacts of stress. The claimant says, therefore, that the respondent was never going to be able to successfully defend their position that an ad hoc stress management process was a proportionate means of achieving a legitimate aim.[12]That the respondent had acted unreasonably in not calling Clare Heaton to give evidence in circumstances where the claimant's application for a witness order for Ms Heaton had been refused.[13]This is on the basis that the respondent’s witnesses who did attend were unable to answer some questions which were said to be for Ms Heaton to answer. Despite this, the respondent had failed to call Ms Heaton to answer those questions.[14]The claimant has set out a schedule of the time spent preparing her case which totals 118 hours and 35 minutes.[15]The respondent’s response to the application was broad and there is no criticism of the respondent for that. The application was made orally and the response was also made orally by Mr Proffitt who was not at the liability hearing.[16]They said that taking an overall view, the claimant lost 8 out of 9 claims and even the claim that the claimant won the tribunal found that Ms Barnes acted sympathetically and considerately and the discrimination was unintentional.[17]They say that if the only issue that had been pursued was the indirect discrimination, the 8-day hearing would have been only 2 days. It was, they say, perfectly reasonable for the respondent to defend the claim in the way they did.[18]They say that the claimant has not shown any evidence of actual failures to disclose relevant documents in respect of the allegation about the freedom to speak up documents.[19]The respondent says that the refusal to grant the witness order addresses the reasonableness of the respondent’s decision not to call Ms Heaton – there is nothing to show that Ms Heaton was a relevant witness in any event.[20]In respect of Mr Wilmott’s evidence, Mr Proffit observed that there is a difference between the tribunal being unimpressed by a witness and the witness acting abusively or unreasonably.[21]There is no link, in any event, between the conduct complained of and the incurring of extra coasts – although Mr Proffitt said that such a link was not strictly necessary it is a relevant factor. Law[22]The starting point is rule 76 of the Employment Tribunal Rules of Procedure 2013. This says, as far as is relevant: (1) A Tribunal may make a costs order or a preparation time order, and shall consider whether to do so, where it considers that— (a) a party (or that party's representative) has acted vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or the way that the proceedings (or part) have been conducted; (b) any claim or response had no reasonable prospect of success; [or[23]Rule 75 defines a preparation time order as … an order that a party ('the paying party') make a payment to another party ('the receiving party') in respect of the receiving party's preparation time while not legally represented. 'Preparation time' means time spent by the receiving party (including by any employees or advisers) in working on the case, except for time spent at any final hearing.[24]Rule 79 says “(1) The Tribunal shall decide the number of hours in respect of which a preparation time order should be made, on the basis of—(a) information provided by the receiving party on time spent falling within rule 75(2) above; and(b) the Tribunal's own assessment of what it considers to be a reasonable and proportionate amount of time to spend on such preparatory work, with reference to such matters as the complexity of the proceedings, the number of witnesses and documentation required. (2) The hourly rate is £33 and increases on 6 April each year by £1. (3) The amount of a preparation time order shall be the product of the number of hours assessed under paragraph (1) and the rate under paragraph (2).[25]As at the date of the application, the hourly rate was £44 per hour.[26]In Barnsley Metropolitan Borough Council v Yerrakalva, Mummery [2012] IRLR 78, LJ said “The vital point in exercising the discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effects it had. The main thrust of the passages cited above from my judgment in McPherson was to reject as erroneous the submission to the court that, in deciding whether to make a costs order, the ET had to determine whether or not there was a precise causal link between the unreasonable conduct in question and the specific costs being claimed. In rejecting that submission I had no intention of giving birth to erroneous notions, such as that causation was irrelevant or that the circumstances had to be separated into sections and each section to be analysed separately so as to lose sight of the totality of the relevant circumstances”.[27]We note that it is necessary, therefore, for there to be some link between the conduct complained of and the costs incurred although it is not necessary to undertake a detailed causal analysis.
Conclusions
[28]We consider first the unreasonable behaviour allegations.[29]In our judgment, the alleged conduct of the respondent does not come close to the level of unreasonable behaviour, looked at as a whole, that is required for a costs or preparation time order.[30]We assessed and made findings on Mr Willmott’s evidence. His conduct in giving evidence did not cross the threshold into unreasonable behaviour, let alone abusive or vexatious. His reluctance or inability to answer questions was not noticeably disruptive to the proceedings.[31]The documents that were not disclosed were not obviously directly relevant to the issues. Their absence did not impact on the outcome as far as we have been made aware and did not cause any additional work or costs to the claimant. It was frustrating, we accept that, but only because the claimant was not given something she wanted. The claimant had been pursuing the documents, apparently unsuccessfully, as a subject access request outside the tribunal process. Overall, however, the failure to disclose these documents in the tribunal process was not unreasonable behaviour by the respondent justifying a preparation time order.[32]We agree with the respondent that the decision not to call Ms Heaton was answered by our decision to refuse the witness order. We do not repeat our reasons for that. However, it is in any event a matter for each party which witness to call. The remedy for the other side, in the absence of what they perceive to be a key witness, is to invite the tribunal to draw inferences from the absence of a relevant witness. In this case, Ms Heaton was not wholly irrelevant, but she was not a key person in relation to the issues we were required to make a decision on. The respondent’s failure to call Ms Heaton was not unreasonable.[33]In respect of the prospects of success of the indirect discrimination claim, this is not a case where, from the outset, it was clear or even very likely that the respondent would be unsuccessful. It was a fact specific decision that we needed to hear evidence about before coming to our conclusion.[34]It cannot in any way be said that the respondent’s defence had no reasonable prosects of success from the outset.[35]For these reasons, the criteria in rule 76 for us to make a preparation time order are not met and the claimant's application for a preparation time order is refused.