MS MARGARET DESMOND v SAFEWAY STORES PLC [2001] UKEAT 1330_00_3010

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1330_00_3010Case No Appeal No. EAT/1330/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS MARGARET DESMONDAPPELLANTSAFEWAY STORES PLCRESPONDENT
Before
His Honour Judge Peter Clark Mr D Chadwick Mrs T A MarslandDate 30 October 2001
[1]APPEARANCES For the Appellant MR P WARD (Of Counsel) Instructed by Messrs J R Jones Solicitors 56A The Mall Ealing London W5 3TA For the Respondent MR S JONES (Of Counsel) Instructed by Messrs Bond Pearce Solicitors Marsh House 11 Marsh Street Bristol BS99 7BB JUDGE PETER CLARK This is an appeal by the Applicant before the London (North), now (Central) Employment Tribunal, Ms Desmond against that Employment Tribunal's remedies decision, promulgated with Extended Reasons on 7 September 2000, limiting her compensation for an act of unlawful sex discrimination, which the Employment Tribunal found proven by her against the Respondent, Safeway Stores Plc, in their earlier liability decision promulgated with Extended Reasons on 17 February 2000 and later corrected, to the sum of £3000 for injury to feelings.[2]The Applicant commenced her employment with the Respondent on 29 January 1990. At all relevant times she was employed in the capacity of Assistant Administration Controller in one of their stores.[3]On 24 January 1999 she informed the Respondent that she was pregnant with an expected date of delivery on 4 August. Originally she had been carrying twins but one miscarried. Between 5 February and 1 April 1999 the Applicant raised a series of grievances over her alleged treatment by the Respondent. On 1 April she went off sick, never to return to work. On 17 April she gave birth to a son after some twenty five weeks' gestation and hence prematurely. Sadly, this baby died within a few hours of birth.[4]She presented an Originating Application to the Employment Tribunal on 14 April 1999. By the time that the matter came on for a hearing on liability on 5 October 1999 some 11 issues of sex discrimination, race discrimination and victimisation had been identified at a directions hearing held on 1 July 1999. The Employment Tribunal heard evidence over 5 days during October 1999 and, by their liability decision, rejected each of the allegations raised by the Applicant save for part of a complaint that she was required to carry out lifting when pregnant, that being an allegations of direct sex discrimination.[5]The lifting allegation fell into 2 parts:(a) that she was required, following notification by her of her pregnancy on 24 January to lift cash bags out of the store safe and onto the counter and then back again. The Employment Tribunal rejected that allegation on the facts, finding that when she required help it was provided, (liability reasons, paragraph 6)(b) that she was not given sufficient support when carrying out pick ups from the cash tills and bending to send money down the chute at the front of the store (liability reasons, paragraphs 4 and 12). The Employment Tribunal, by its corrected decision, concluded that such failure to provide support in these particular tasks amounted to less favourable treatment on the grounds of her sex, she being a pregnant woman so that no comparator actual or hypothetical was necessary. We shall, hereafter, adopt Mr Sean Jones' helpful expression, "the specific wrong", to describe this finding by the Employment Tribunal.[6]The question of remedies for the specific wrong was adjourned to a further hearing held before the same Employment Tribunal, chaired by Mr Carl Teper, on 20 July 2000. At that hearing the parties were represented, as they had been at the liability hearing by, respectively, Miss Dsane described as Counsel for the Applicant and Mr G Jones, a solicitor, for the Respondent. For the purpose of that remedies hearing the Applicant lodged a bundle of documents, including medical evidence, and an outline written submission on remedies prepared by Miss Dsane.[7]That outline submission, together with the documentary evidence adduced on that occasion is before us. It is instructive, in considering the present appeal, to see how the case was then put on behalf of the Applicant and the medical evidence adduced in support of that case. We shall return to those matters later in this judgment.[8]As we have observed, the Employment Tribunal's decision on remedy was that the Applicant would receive compensation in the sum of £3000 for injury to feelings. No further heads of loss were found by the Employment Tribunal to have been made out.[9]Against that decision the Applicant appealed, her grounds of appeal having been settled by Mr Peter Ward of Counsel who now appears on her behalf.[10]The appeal came on for Preliminary Hearing before a division presided over by Mr Commission Howell QC on 10 April 2001. Having considered the submissions of Mr Ward that division permitted the appeal to proceed on 3 grounds, namely:(1) whether the Employment Tribunal ought to have ordered compensation for loss of earnings(2) whether the Employment Tribunal should have made an award of compensation for personal injury suffered by the Applicant(3) whether the Employment Tribunal ought to have awarded interest on the award of £3000 compensation for injury to feelings.[11]There is a further point relating to the adequacy of the Employment Tribunal's reasons given in the remedies decision to which we shall return. A further ground of appeal, attacking the Employment Tribunal's award of £3000 for injury to feelings as being excessively low, was dismissed at the Preliminary Hearing. Further, Mr Sean Jones accepts on behalf of the Respondent that the Employment Tribunal fell into error in failing to award interest on the £3000 compensation which was ordered. That is plainly correct in our view and we shall allow the appeal to that extent by consent. Accordingly the first 2 grounds of appeal only remain for adjudication in this appeal together with what we shall describe as the Meek point.[12]We begin by returning to the way in which these 2 heads of loss were put in Miss Dsane's outline submissions on behalf of the Applicant at the remedies hearing below.[13]The submission first sets out a series of propositions of law, the 8 th of which reads:
"8) Since an award for Injury to Feelings is intended to include reparation for any physical or psychological injuries caused by the discrimination. Injury to feelings do include an element of aggravated damages."
[14]Based on those propositions the claim was formulated in this way. First, financial loss, being lost earnings at her rate of pay with the Respondent, £211 per week, from 9 April 1999 until the date of the remedies hearing (assumed to be 16 June 2000) and for 6 months into the future, less monies received from the Respondent during the period of loss claimed. Secondly, non-financial loss, quantified at £25000 for injury to feelings and £5000 by way of additional aggravated damages.[15]In pitching the figure for injury to feelings at that level, it was plainly submitted on behalf of the Applicant that such award should include an element of compensation for personal injuries suffered by the Applicant. The case, on this aspect, was put in this way:
"Also, in this instance the Tribunal's main task will be to determine what effect the discrimination has had on the life of the Applicant. Key factors will be whether the discrimination has led to any medical condition – such as depression, panic attacks, or any stress related illness it is obvious that the Applicant lost a child as a direct result of lifting heaving items over several months while pregnant, any reasonable employer would foresee that as a likely consequence a miscarriage would occur"
[16]We should here point out, as Mr Ward has been careful to stress, that the Applicant did not miscarry on 17 April 1999; she gave birth to a premature child who unhappily died after a short time. The Employment Tribunal was also incorrect in referring to the Applicant as having miscarried at paragraph 5 of their liability reasons.[17]It is clear from the leading judgment of Stuart-Smith LJ in the Court of Appeal in Sheriff v Klyne Tugs (Lowestoft) Ltd [1999] IRLR 481 that damages or compensation for personal injury caused by, in that case racial discrimination, are recoverable before the Employment Tribunal. The same is true in the case of sex discrimination. However, in the usual way, the physical and/or psychiatric injury complained of must be caused by the statutory tort of unlawful discrimination. It must equally follow, on ordinary principles of tortious loss, that where causation is made out, the damages or compensation may include both general damages for what is commonly referred to in the personal injury field as pain, suffering and loss of amenity and loss of earnings as a result of the relevant incapacity. It is in these circumstances that, at paragraph 21 of his judgment in Sheriff , Stuart-Smith LJ points out that a complainant and his or her advisers would be advised to obtain a medical report for the purposes of pursuing such a claim in unlawful discrimination proceedings before the Employment Tribunal.[18]It is in these circumstances that we turn next to the state of the medical evidence before the Employment Tribunal at the remedies hearing. It came in a form of letters from 2 partners at the Applicant's general practitioners surgery, Greenford Road Medical Centre. We set them out in full, in chronological order. On 18 February 1999 Dr Moore wrote this:
"To whom it may concern re Margaret Desmond 4/7/61, currently 15 weeks pregnant, understandably in her condition it is advisable not to wear constricting clothes, lift heavy objects or be subjected to frequent bending. On 9 June 1999 his partner Dr Rosalyn Lewis writes: "
Mrs Desmond has asked me to write regarding the stress she experienced during her recent pregnancy and subsequent loss of her baby. She did have a very difficult pregnancy. She was admitted to hospital on 1 st December 1998. She was then found to be diabetic in February 1999 and started on insulin injections. She had premature ruptured membranes and the baby was delivered at only 23 weeks and sadly survived for only one day in the Intensive Care Unit. She did see our Locum doctor on 18 th February asking for special allowances regarding tight clothing and excessive lifting at work. She was seen by Dr Moore on 1 st April when she was feeling very stressed and felt that her managers were very unsympathetic about her pregnancy and the diabetes. She felt that she was given little support. There was limited access to a toilet and she had no privacy in which to give her insulin injections. She was given a certificate at that time for four weeks sickness absence. This has subsequently been extended following her baby's death on 18 th April. She continues to feel very distressed and also very angry at the attitude of her employers. Dr Moore wrote again on 22 November 1999. He said this:
"Further to Dr Lewis's report dated 9 th June 1999, Margaret has been very depressed since the loss of her baby in April. She has been prescribed anti-depressants and found a support group at Ealing Hospital very helpful. Another problem has been her diabetes. Initially it was thought that this would be controlled by diet but unfortunately this was not sufficient and she has had to start regular insulin injections. In any circumstances this would have been a very tragic sequence of events, however I don't think that there is any doubt that Margaret's unsympathetic and unsupportive employers have exacerbated her depression."
Finally, on 16 March 2000 Dr Lewis wrote again:
"Miss Desmond has asked me to write supporting her decision to leave Safeway. She has suffered a considerable amount of stress through a difficult pregnancy with finding that she was diabetic needing insulin injections and ultimately losing the baby at 25 weeks. She has felt colleagues and managers at work to be unsupportive which has added to her distress and she continues to suffer from panic attacks and become agitated when discussing her workplace. She feels that she cannot face returning to the same working environment and I would agree that this is likely to cause her further stress. She continues to require regular hospital treatment for problems relating to her diabetes and pregnancy."
[19]In addition, there was before the Employment Tribunal a series of sick notes, dating from 1 April 1999, certifying her unfit for work, with a diagnosis of variously, diabetes, stress related illness, stress, work-related stress and stress disorder.[20]Based on that evidence the Employment Tribunal express their findings and reasoning in rejecting the claims for what we have called general damages and loss of earnings advanced on behalf of the Applicant in the remedies decision at paragraphs 5-7 thus:
"5. Unfortunately the Applicant has not provided the Tribunal with any evidence medical or otherwise to support her claim that it was reasonably foreseeable that the discrimination, the Tribunal found proved, had prevented her from working. The Applicant has, therefore, failed to establish that as a result of the Tribunal's finding of sex discrimination she was unable to work. And that this was because she was provided with insufficient support, when she was pregnant, for carrying out the pick up from the tills and sending money down the chute. 6. In the absence of any evidence that the Applicant was unable to work between 1 April and 17 April 1999, because of the bending down, the Tribunal cannot award compensation for loss of earnings. It also follows, that, in the absence of any evidence that the bending down prior to 1 April has resulted in the Applicant being unable to work since 17 April 1999 (that is to the date of this hearing or in the future) precludes the Tribunal from making any award of compensation for loss of earnings. 7. The Tribunal considered the authorities concerning injury to feelings cited by the Applicant and awarded the Applicant £3,000 for injury to feelings. The Tribunal were unable to find any reason for awarding aggravated damages."
[21]In prosecuting the remaining 2 grounds of appeal before us, Mr Ward submits, relying on the House of Lords authority of McGhee v NCB [1974] 1WLR 1176, that the Applicant here raised prima facie evidence that the specific wrong caused her both physical and emotional damage which translates into an award both of general damages for personal injury and her lost earnings, in addition to the simple award of compensation for injury to feelings made by the Employment Tribunal.[22]We have considered the speeches in McGhee , a personal injury case in which the claimant contracted dermatitis as a result of his work performed in the course of his employment with the Defendants. The effect of that decision, as Mr Sean Jones submits, is that when medical evidence cannot fill the gaps in the chain of causation, the claimant is nevertheless entitled to recover damages from his employer in respect of their admitted breach of duty for an injury within the risk which they had created.[23]However, that is not this case. Quite simply the Applicant, or more particularly her then advisers, failed to adduce any medical evidence which was directed to the, potentially difficult, issue of causation in this case. The Employment Tribunal so found. In our judgment they were entitled so to do.[24]In the absence of any medical evidence directed to the question as to whether the specific wrong significantly contributed to all or any of the physical and emotional injuries complained of or to the Applicant's incapacity for work and consequent lost earnings, the Employment Tribunal were bound to reject both heads of loss under consideration in this appeal.[25]Mr Ward takes the further, supplemental point, based in particular on the observation of Bingham LJ in Meek v Birmingham City Council [1987] IRLR 250 , paragraph 8, namely that the Employment Tribunal has not explained why the Applicant lost on these 2 heads of claim, particularly that for general damages for personal injury.[26]Even if that is correct, we should not allow the appeal on this ground. The result would be to remit the case to the same Employment Tribunal to provide further reasons. The outcome would inevitably be the same, given the Employment Tribunal's permissible finding that there was no medical evidence adduced which supported the necessary causal link for either or both heads of loss.[27]In these circumstances we have concluded, not without regret, since the Applicant's case could and should have better presented evidentially below, that this appeal will be dismissed, save that it will be allowed by consent so far as the question of interest is concerned. It is agreed between the parties that interest to date on the award of compensation for injury to feelings is £628.32 and it will continue at the rate of £0.66 pence per day until payment.