EAT/1314/97 & EAT/1430/98 MISS L FARIS v RIVERSIDE COMMUNITY HEALTHCARE NHS TRUST [2000] UKEAT 1314_97_1905

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1314_97_1905Case No Appeal No. EAT/1314/97, EAT/1430/98 & EAT/1432/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
EAT/1314/97 & EAT/1430/98 MISS L FARISAPPELLANTRIVERSIDE COMMUNITY HEALTHCARE NHS TRUSTRESPONDENTEAT/1432/98 RIVERSIDE COMMUNITY HEALTHCARE NHS TRUSTAPPELLANTMISS L FARISRESPONDENT
Before
His Honour Judge H Wilson Mrs R Chapman Mr N D WillisDate 19 May 2000
[1]APPEARANCES For Miss L Faris MR P DRAYCOTT (Barrister) Fulham Legal Advice Centre 679a Fulham Road London SW6 5PZ For Riverside Community Healthcare NHS Trust MR D STILTZ (of Counsel) Instructed by: Mills & Reeves Francis House 112 Hills Road Cambridge CB2 1PH JUDGE WILSON : This has been the hearing of full argument of the appeal of the original applicant and the cross-appeal by the original respondent. We will refer to the applicant as 'the appellant' and the respondent as 'the respondent' in the course of this judgment. The matter came before the Employment Tribunal in the first place as long ago as July 1997. On that occasion the appellant conducted her own case and Mr Stilitz appeared on behalf of the Trust. Today Mr Draycott has represented the appellant and Mr Stilitz has represented the respondent again.[2]Following the first hearing, the decision reached by the tribunal was that the appellant had been dismissed by reason of redundancy. The dismissal was unfair on procedural grounds and an award was made subject to a Polkey reduction of 50% to reflect the likelihood that the appellant would have been fairly dismissed had all proper procedures been carried out.[3]The matter came before the Employment Appeal Tribunal at a preliminary hearing on a lengthy Notice of Appeal prepared by the appellant herself. She was assisted on that occasion by a member of ELAAS, Ms Heal, who put forward matters which led to the Employment Appeal Tribunal, on that occasion presided over by Bell J, to find that there were no tenable arguments on the appellant's behalf except in two respects, which Ms Heal had put before that tribunal.[4]The first one was to do with what appeared at grounds 5 and 6 in the Notice of Appeal, and attacked the 50% reduction by reason of Polkey . Ms Heal argued that there was no evidence upon which such a reduction could be made or to conclude it was an appropriate reduction. The matter was allowed to go forward on appeal to full argument on the basis that it needed some evidence upon which to base a reduction and it was arguable that there was no such evidence in the current case.[5]The second point made by Ms Heal was the one which appeared in grounds 12 and 13 of the original Notice it attacked the limitation of the award for future loss to 13 weeks. It was said that that was suitable for full argument as well.[6]Meanwhile, Bell J in the course of his judgment, having adverted to the possibility of a review, the appellant sought a review from the Employment Tribunal, which application was acceded to.[7]The review hearing took place on 6th October 1998, when Mr Draycott first appeared on behalf of the appellant and again Mr Stilitz represented the respondent. On that occasion the unanimous decision of the tribunal was that the appellant's request for review of the decision should be granted. The original decision was varied in order to increase the net compensatory award for the reasons set out, and in the way described, in the extended reasons.[8]The appellant appeals against that finding as well. The cross appeal on behalf of the Trust submits that it was an error in law to review the original decision and that the review decision should be quashed, although the original decision should be upheld.[9]Both Mr Draycott and Mr Stilitz submitted substantial skeleton arguments upon which they have relied in the course of their amplifying submissions to us and we incorporate those skeleton arguments as part of the judgment we are giving in this matter today. Those skeleton arguments should be read as part of the judgment.[10]To deal with the matter of the Polkey reduction, we have considered the detailed decision given by the tribunal. We note that there really was no evidence at all before the tribunal upon which to base any Polkey assessment. In particular, on page 7 of the judgment there is a heading in the course of paragraph 6 "Alternative Employment". There then follows a quotation which refers to a telephone conversation between Miss Faris and the Trust:
"During our conversation over the telephone last Thursday (20 June) you asked about suitable alternative employment. We were waiting to hear from you regarding whether you were interested in suitable alternative employment. As we had not received a response until you enquired last Thursday, we assumed you were not interested in pursuing this option. Unfortunately, at present, there is no suitable alternative employment within the Trust. However, if a suitable vacancy does arise between now and your last day of service even though this is, I must point out, unlikely, then I will let you know."
The tribunal said:
"We find that reply quite extraordinary and both Mr Lynch and Mr Stilitz in his submission, seek to explain it as no more than a misunderstanding. We cannot accept that. Miss Faris's request in her letter of 11 June is quite clear and Mr Lynch had to admit in evidence that he would certainly have considered it as a request for the Respondents to find alternative employment for her within the organisation. Mr Gotz's reply is unconstructive and unhelpful."
[11]There was evidence before the tribunal about vacancy bulletins, about which further and better particulars had been requested, without opposition from the Trust, by the appellant, but the Trust put no such vacancy bulletins in evidence at the substantive hearing.[12]The tribunal went on to say in paragraph 12 that they noted that:
"… as soon as Sarah Grant determined which posts were to be made redundant, Lesley Allwright was offered another job. But no such effort was made for Miss Faris. …"
They acknowledged that the appellant was absent on sick leave, but there was no consultation with her in any way except to write her letters.[13]Having heard the evidence on both sides, the tribunal concluded that a "hidden agenda" might well have existed insofar as Miss Faris had incurred the disapproval of her immediate line manager and her superior manager, Sarah Grant. They said that that conclusion was reached on the following basis in paragraph 13: "(a) The Respondents did not make sufficient effort to contact Miss Faris when she was absent sick. … No effort was made by the Respondents to arrange for a home visit or even to telephone her … (b) … insufficient effort was made to redeploy Miss Faris within the Respondents' organisation. (c) The lack of enthusiasm (to put it mildly) in the form of reference that the Respondents were prepared to give Miss Faris." (All supported the appellant's feeling that there a "hidden agenda").[14]In paragraph 16 of the tribunal's decision they went on to say that the Trust did not, in their view:
"make sufficient efforts to contact Miss Faris to ascertain her wishes with regard to employment. …"
Although the tribunal recognised that the one reason for that was the belief that the appellant would not wish to continue in the respondent's employment because she was applying for a job with another hospital, that did not relieve the respondents of their responsibility to find her another job within their organisation and they did not accept Mr Stilitz's submission that Miss Faris was given "the strongest signals" that she did not want to be redeployed.[15]In paragraph 17 the tribunal records the monitoring of internal vacancies, to which we have already referred, was not undertaken by the respondents with any enthusiasm. It seemed to the tribunal that the respondents were just going through the motions. The tribunal record that it was the employer's responsibility to seek out the employee's requirements and no attempt was made by the respondents to ascertain whether the appellant would be prepared to accept a job at a lower grade.[16]It seems to this tribunal that there was no evidence of any sort about the availability or non-availability of alternative jobs and accordingly no basis upon which an assessment for Polkey purposes could be made. Although an assessment is a matter of judgment, there has to be factual material upon which to base the judgment. If there is none, it cannot and should not be made. In those circumstances we find that the tribunal erred in law in proceeding to a Polkey reduction. We quash that reduction.[17]Turning to the other ground of appeal, concerning the possible error by the tribunal in the way in which they approached the question of assessing future loss, one of the matters of complaint is that by the time the matter came for review it was plain that the estimate of 13 weeks had been inaccurate. The appellant, by that time, had received an offer of a job with the British Red Cross, subsequently withdrawn because of the inadequate nature of the reference she was given by the respondent, but nevertheless there had come a finite point when she had got a job. The tribunal, on review, found that there was no new evidence upon which they could reassess their period of 13 weeks. We find that that was an error in law because there was a new fact of significance which was for the tribunal to decide whether they were going to accept or not. That fact was that, in place the uncertainty which must always accompany an estimate for future loss, there was now certainty because they had a date by which employment should have begun. We therefore remit that part of the case to the tribunal to reconsider whether or not they should review their original 13-week estimate of time.[18]So far as the estimate the tribunal gave for what had happened as a result of the loss of the British Red Cross job is concerned, it seems to us that the tribunal proceeded on a flawed understanding of Dr Bronks' prognosis. The tribunal dealt with this in the course of their review judgment. They mentioned the great distress caused to the appellant by the loss of the Red Cross job which had led to a deterioration in her health, so that she was receiving treatment by Dr Bronks, a Consultant Psychiatrist, whose report was before the tribunal and upon which they quite clearly based their assessment of future loss which they put at one year. They said:
"11. … As a result of the Respondents' actions we accept Dr Bronks' assessment that her prospects of obtaining paid suitable employment have been put back by at least a year. At today's date, some nine months after the event, she has not been able to face the prospect of applying for further jobs. …"
The tribunal then go on to explain why they choose a year.[19]When we turn to the actual report from Doctor Bronks, we find that he was not saying she would be under treatment and unable to work for a year. What he was saying was the reverse. If she got a job, it would be a year or two before all her symptoms could be expected to have gone. We quote from Dr Bronks' report (at page 178 of the bundle): "So far as the question of prognosis is concerned, in circumstances of this kind it is difficult to see too far ahead with any degree of certainty. If it is the case that she has been given poor references (whether justified or not) by the Riverside NHS Trust, and such references continue to be given, making it impossible for her to obtain employment (or at any rate suitable employment) it seems likely that her depression, anxiety and allied symptoms will continue in essentially their present form so long as that situation continues to exist. On the other hand , if Miss Faris is able to obtain suitable employment , it can be expected that there will be a gradual improvement in her psychiatric condition over a period which cannot be predicted with precision, but which will probably encompass a further one to two years and she should ultimately make a good recovery. The more expeditiously the present proceedings can be concluded the more rapid is Miss Faris's recovery likely to be." [ Our emphasis ][20]It is plain to us from that quotation that Dr Bronks' prognosis is predicated on the obtainment of suitable employment as a condition precedent to improvement in health. We therefore remit that part of the matter to the Employment Tribunal for further consideration so far as future loss is concerned.[21]Insofar as it is suggested by Mr Stilitz that there was no basis upon which to base a direct causal connection between the matters reviewed and the actions of the Trust, in our view there can be no doubt that there is the necessary connection. Everything flowed from the procedural unfairness of the Trust's handling of the redundancy.[22]Accordingly, the matter will be remitted to the tribunal for reconsideration of the indicated aspects of the case.[23]Mr Stilitz's application on behalf of the respondents for leave to appeal to the Court of Appeal is rejected.