BEST LIMITED v MISS S WARD [2002] UKEAT 1319_01_3101

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1319_01_3101

Case No Appeal No. EAT/1319/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

BEST LIMITEDAPPELLANT

MISS S WARDRESPONDENT

Before

Mr Recorder Langstaff

Date 31 January 2002

[1]APPEARANCES For the Appellant MR A HUGHES (Representative) First Business Support Hurstwood House Station Court Rawtenstall Rossendale Lancashire BB4 6AJ MR RECORDER LANGSTAFF QC This is an appeal which comes by way of Preliminary Hearing before us. The Employment Tribunal sitting at Leeds gave Extended Reasons promulgated on 21 September 2001 for its award of £17,950.30 at a compensation hearing. There is an appeal which is limited to the issues of remedy, the merits decision being accepted.

[2]We propose to give permission for one aspect of the calculation of compensation to be the subject of further hearing at which the Respondent will be entitled to be represented. Because we shall reject the other grounds of appeal which have been raised we require to set out our reasons for doing so in a little, albeit brief, detail.

[3]The background is that by a reasoned decision promulgated on 4 July 2001 the Employment Tribunal upheld Ms Ward's complaints that she had been discriminated against both on the grounds of her race and her sex. She is a forty seven year old black woman. She made the allegations that the Respondent had treated her less favourably by failing properly to supervise her training for a qualification known as TDLB3 and another known as NVQ2 by removing her trainee group, by denying her access to staff facilities and staff meetings, by appointing another trainee, one Trevor Allen, who was white, to a trainer post without giving her the opportunity to apply for it, by failing properly to address her grievances arising from those matters and by terminating her training contract.

[4]The Tribunal at the merits hearing determined that some of those matters were matters the cause of which had nothing to do with either her sex or her race. They found that she had been treated less favourably on the ground of sex and race in a number of respects. In particular, as to her sex, they found that she had been treated less favourably in her non appointment to the post that Trevor Allen succeeded in obtaining. As to race discrimination they found that she had been less favourably treated by her employer not taking a complaint that she had made of racial discrimination seriously, by failing to address issues raised by her including the issue of status and whether she was staff, as she would be in respect of the TDLB3 qualification, or a trainee, as she would be in respect of the NVQ2 qualification, by failing to tell her that her training period had been extended to 28 April in circumstances when it looked as though it might be terminating much earlier, by taking an exaggerated view of her as being unreliable and being of an over demanding nature and by termination of her training contract on 11 February 2000.

[5]It was in respect of those matters that the Tribunal had to determine the appropriate compensation. It decided that had the Respondent not terminated the Applicant's contract then on a balance of probability she would have acquired her qualifications by 28 April 2000, the date to which her training contract was extended in January that year. Those are the words at paragraph 10 of its decision. They came to the conclusion that it would have taken her two further years to obtain a similar qualification. They approached the question of compensation by taking what appeared to be the full time gross earnings of someone in a comparable position, either with the Appellant organisation or generally, and by discounting it for the impact of taxation and National Insurance (it may well have been an over discount for those), by then limiting the claim by half in order to take account of matters which it set out in paragraph 19, then by further reducing that by the amount of invalidity benefit receivable.

[6]We consider that it is arguable that the approach taken to calculation of loss in respect of someone who was on invalidity benefit, as they found and who had been out of work for some two years prior to beginning the work towards the training qualifications, may not have been an appropriate way to estimate the undoubted loss that had to be estimated. Accordingly, we propose to give leave for the issues which relate to the calculation of the period of loss and the rate of loss to be reviewed inter parties.

[7]We turn now to other criticisms of the assessment of damages. Only two matters were pursued in argument before us this morning by Mr Hughes. The first was that the entirety of the loss, or at least a very large part of it, could not be laid at the door of the Appellant but was the responsibility and fault of the Employment Service, that the behaviour of the Employment Service constituted a novus actus so as to mean that any loss after the intervention of that service was no responsibility of the Appellant. We looked at paragraph 12 of the decision. Mr Hughes founded his argument upon the first two sentences. I quote:

"Our impression of evidence, which was not always clear, was that the Employment Service washed its hand of the applicant [Ms Ward]. She was seen as someone who had "blotted her copy book" with the respondent as a training organisation."

He, at first, said that the finding here amounted to a finding that the Employment Service had prevented Ms Ward obtaining alternative employment. We do not see that is what is said. We have to ask whether or not there was here such a break in the chain of causation as required the Employment Tribunal to find that the loss of a job, or the failure to obtain a job, was caused by the Employment Service and not by the discrimination of the Appellant. Since the starting point is, given the findings of the Tribunal at the merits hearing, that the Appellant would have qualified in April 2000 had it not been for the discrimination, it seems to us that the next question is, what loss would naturally fall from that? Prima facie the entirety of the loss arising from not being qualified would be a loss which Ms Ward would be entitled to be paid by the Appellants. The relevance of any activity of the Employment Service was not in creating that loss but in failing to mitigate it. If that is the proper way of characterising what the Employment Tribunal was saying, and we think it is, then it is plain that there can be no room for any argument that the Employment Service caused the loss in the first place. A failure to mitigate on behalf of a litigant the loss that that litigant has suffered is not the same as causing fresh, different, distinct loss. Put another way, taking the robust view which the courts have to take of causation, we have no doubt that on the findings of the Employment Tribunal it was not only entitled but bound to come to the conclusion that it expressed, that the damage which it found was the responsibility of the Appellants subject only to arguments about the calculation of that damage.

[8]The second matter which Mr Hughes urged upon us was in relation to paragraph 22 of the decision. He argued, first, that it was not clear whether or not the Tribunal had included in its award of £8,000 in respect of an injury to feelings any sum in respect of aggravated damages. Secondly, he argued that it was incumbent upon any Employment Tribunal to express such an award separately as a distinct element of the overall award for injury to feelings.

[9]We disagree on both counts. We think it completely clear, as we read paragraph 22, that the Tribunal were there saying that the conduct of the Appellant and on its behalf, since the matters which gave rise to the initial complaint occurred, had aggravated the effect of those incidents upon the feelings of the Respondent employee. He argued that there were insufficient findings of fact to justify any conclusion that there had been aggravation. He suggested, for instance, that where the Tribunal described Gillian Bestall as having insulted the Applicant by describing her as having a 'chip on her shoulder', that this was no more than Ms Bestall expressing her honest view and doing her best to help the Tribunal and that there was no evidence that this caused upset to Ms Ward at the time. However, we have to have regard to the entirety of what is said. We note that that particular sentence begins by describing the insult as having occurred in the proceedings. That would have been in front of the Tribunal who are best placed to determine the effect of it and the extent to which it might properly be said to be aggravating. Moreover, Ms Bestall is recorded as saying that Ms Ward was someone who would use her ethnicity as a weapon on any occasions when she did not get her own way. We understand Mr Hughes to argue that the Tribunal should not have regarded this expression as one which aggravated the damages. The issue for us is simply to ask whether the Employment Tribunal were within their powers to do so, was it capable of being viewed as an aggravating comment? The only answer that we can see is, yes. It follows that on that part of his argument in respect of aggravated damages there is no arguable ground of appeal.

[10]As to the second aspect which he raised, which was whether or not the element should be separately identified, we simply note what is said by this Tribunal in the judgment of His Honour Judge Peter Clark in ICTS (UK) Limited v Tchoula

[2000] IRLR 643

, in paragraph 13 at page 649. He said:

"It is of interest to note that Tribunals sometime include an element of aggravated damages in their award for injury to feelings….. Sometimes the awards are expressed separately. In our view that is a matter of form rather than substance. However expressed, the principle stated by Carswell LCJ at paragraph 19 of McConnel is correct. We do not understand Smith J to have been saying anything different in Armitage . The first question must always be, do the facts disclose the essential requirements for an award of aggravated damages?"

He was there saying that a Tribunal does not have to record separately as a matter of law the amount of the element for aggravation which it is taking into account. It may be that in many cases it will be right to do so. The argument of Mr Hughes however, is that the Tribunal was bound as a matter of law to do so. We agree, respectfully, with His Honour Judge Clark. There is no force in this ground.

[11]It follows that on all the grounds of appeal save the one which we have identified earlier in this decision, this appeal has no arguable prospect of success and must be dismissed.

[12]So far as the hearing of the point on which we have given permission is concerned, we think that it should take no more than two hours to argue. It is Category C. We require skeleton arguments together with copies of any authorities to be relied upon to be provided to this Tribunal no less than seven days prior to the hearing. There has been a suggestion that the Chairman's notes of evidence might be of use. We do not think that they will be. The points which emerge, we think, are sufficiently obvious on the face of the decision.