Halton College Of Kingsway & Anor v Goulden [1998] UKEAT 202_98_0203

EAT
Halton College Of Kingsway & Anor v Goulden
[1998] UKEAT 202_98_0203 · 1998-03-02
MR JUSTICE BELL : This is a preliminary ex parte hearing in respect of an appeal by Halton College and Mr Martin Jenkins against the decision of an Industrial Tribunal held at Liverpool and entered in the Register on 25th November 1997. The Industrial Tribunal had previously decided, more than two years before in fact, that Ms Valerie Jean Goulden, respondent to the appeal, had been discriminated against contrary to the provisions of the Sex Discrimination Act 1975 by reason of extensive monitoring, after an investigation of a complaint by a student of sex discrimination by Ms Goulden herself had not sustained the complaint. The Industrial Tribunal then had to investigate the matter of the proper compensation to be awarded to Ms Goulden, and by its 25th November 1997 decision it awarded £49,290 (with interest) against the College and £2,500 against Mr Jenkins individually.The first two grounds of appeal, A and B, amount together to a contention that the Industrial Tribunal applied the wrong test in respect of causation of Ms Goulden's ill health upon which the award was based, or at least that it is not clear that it applied the right test. Those grounds refer to the well-known cases of Bonnington Castings v Wardlaw [1956] AC 613 , McGhee v National Coal Board [1972] 3 All ER 1008 and Wilsher v Essex Area Health Authority [1988] All ER 888 . Mr Hogarth who has represented the appellants before us today, explained that they arise because there were about ten possible separate causes promoted for the psychological symptoms which founded or underpinned Ms Goulden's claim for compensation. Some were extraneous to her employment, Mr Hogarth explains. There were a number of allegation which Ms Goulden made which were dismissed by the Industrial Tribunal. There were a number of allegedly discriminatory acts at the compensation stage. Mr Hogarth tells us that there was an article in a national newspaper which might have been calculated to increase Ms Goulden's stress. All this occured quite apart from the monitoring which was at the heart of her case of sex discrimination. The essence of Mr Hogarth's submission in relations to grounds A and B, is that it appears from the Industrial Tribunal's decision at paragraph 8 where it refers to a "fundamental concept of causation" that Ms Goulden must satisfy the Industrial Tribunal that the unlawful act "caused or substantially contributed to" the injuries in respect to which she claims loss. But it is apparent from that, Mr Hogarth says, that the tribunal must have been thinking of Bonnington Castings and McGhee , which he would wish to argue were not applicable to the facts of this case, because in both those cases the physical cause of injury to the plaintiff was known (in one case, I believe, silicate dust and in the other, brick dust) and the argument was as to whether it was the culpable portion of the dust which caused the injury, or the innocent portion.It seems to us that there may be some difficulty with that argument, because whether or not it can be argued that the Industrial Tribunal initially directed itself wrongly on the test, it went on to find that the discriminatory monitoring was the primary cause of Ms Goulden's ongoing problems. Not only did the decision to monitor undoubtedly materially contribute to her loss, it was the main problem and at the heart of the situation which subsequently developed. However, in our view, it is difficult in this case to take grounds A and B in isolation from the other grounds.Ground C is that:
"In failing to reach a conclusion within a reasonable period of time following the hearing the Industrial Tribunal deprived themselves of the opportunity of assessing the strengths and weaknesses of the case of each party from the oral evidence, but instead necessarily confined themselves to the notes they had made of what it was that the witnesses said."
The chronology behind that ground of appeal is that the compensation oral hearing ended on 30th April 1997. It was agreed that submissions would be in writing. Written submissions were entered by all parties. There were then written submissions in answer to the written submissions of the opposing parties. On 29th May 1997 the three members of the Industrial Tribunal apparently sat in chambers to consider the matter. On 6th November 1997 they sat again in chambers to consider the matter, and on 25th November 1997 their decision, that is their quantification of the compensation, was promulgated. So, Mr Hogarth says, there was six months between them first meeting to consider the matter, and the making of their decision.Although reading the decision, it would appear that this case, understandably, had made an impact on the members of the tribunal, Mr Hogarth tells us that the evidence in relation to matters of quantum of compensation was really quite complex. It came from a number of sources, and it conflicted in a number of respects. He makes the point that these differing strands of evidence were not really considered, or at least, considered in any detail in the eventual written decision. Mr Hogarth would wish to argue that that is perhaps an indication of the effect of any delay. It also makes it difficult, he would argue, to see the basis upon which the Industrial Tribunal reached the decision, to which grounds A and B also apply, that the discriminatory monitoring was the primary cause, the main problem, and at the heart of the situation which later developed with Ms Goulden's health.Taking all those first grounds together, we think that there is just sufficient merit to warrant the matter going ahead to a full hearing.Ground E claims that the total sum of £18,500 for injury to feelings and injury to health awarded to Ms Goulden was excessive and outside any reasonable range for an appropriate award. It was apportioned as to £6,000 against the College for injury to feelings; £10,000 against the College for injury to health; and £2,500 against Mr Jenkins. Mr Hogarth very candidly said that it would be difficult for the challenge to that figure to stand on its own, but it should be taken with all the other grounds.We should have said before going on to E, that ground D is an allegation that in reaching its decision on the causative effect of the discriminatory conduct, the tribunal came to a conclusion which was perverse. This really is all part of the argument on grounds A, B and C, and we take that into consideration in deciding that they are arguable. It seems to us that it would be very difficult to look into any one of the matters raised in A, B, C or D without looking into all the matters raised by grounds A, B, C and D.Grounds F and G raise matters of principle in relation to the award of aggravated damages. Putting the matter very shortly, Mr Hogarth would wish to argue on a full hearing of the appeal that an award of aggravated damages requires malice in itself or in treatment which has to be in very close connection with the actual discriminatory conduct if it is to be taken into account. It is not clear, he says, that that was the situation here. One must have a finding of malice, and there is no finding of malice here or certainly no express or clear finding of malice.In our view, Mr Hogarth should have the opportunity to argue those matters of principle.The last two grounds H and I really depend upon the argument that no clear finding of discrimination was actually made against Mr Jenkins in 1995; yet an award was made against him, and that that can really be only based on his alleged conduct after the hearing on the merits as to whether there had been discriminatory conduct or not.We have been referred this morning to the 1995 decision on whether there was discrimination. We say no more than it is just arguable, in our view, that there was no clear finding of discrimination against Mr Jenkins himself.It is with all those factors in mind that, with some hesitation, we feel that the matters are arguable and merit a full hearing. Perhaps it is not the true test, but Mr Hogarth, competent counsel has argued the matter for something like half an hour without, in our view, wasting a word, and we feel that his clients are entitled to a full hearing of all the arguments with the matter set out on both sides before a panel of this tribunal in due course.Ms Goulden has suggested that there should be a payment into court, in effect, of the amount of the compensation pending the full hearing of the appeal to test the good faith of the appellants in bringing this appeal. That application is made largely in the light of the fact that there was an appeal against the original finding of sex discrimination which was abandoned before it actually came before the Employment Appeal Tribunal, but we have not been referred to any power to make any such order, and we have no material before us from which we could find that there is any risk of this compensation not being paid, if it not now paid into some safe place. So we reject that application on behalf of Ms Goulden.