S & B CAR HIRE KENT LTD v MRS D WALLINGTON [2003] UKEAT 0240_03_2808

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0240_03_2808Case No Appeal Nos. EAT/0240/03/MAA EAT/0246/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
S & B CAR HIRE KENT LTDAPPELLANTMRS D WALLINGTONRESPONDENTMRS D WALLINGTONAPPELLANTS & B CAR HIRE KENT LTDRESPONDENT
Before
His Honour Judge Ansell Mr B R Gibbs Mrs R A VickersDate 28 August 2003
[1]APPEARANCES For S & B CAR HIRE KENT LTD & MR A PAINTER MISS M MONDAY (Of Counsel) Instructed by: Messrs Stephens & Sons Solicitors 37-41 Railway Street Chatham Kent ME 5 7LP For MRS D WALLINGTON NEITHER PRESENT NOR REPRESENTED JUDGE ANSELL This is an appeal and the cross appeal from a decision of an Employment Tribunal sitting in Ashford on 10 December 2002. Their decision was sent to the parties on 15 January 2003 and they held that the employee Donna Wallington had been unfairly dismissed by reason of her pregnancy. The original Respondents were both her employers and a director Mr Painter, he was dismissed from the case and within the same hearing the Tribunal then went on to deal with compensation and awarded a total sum of £18,050. Leave was given for this hearing by Mr Justice Wall on 5 June 2003.[2]The appeal had originally proceeded both in regard to certain aspects of the merits decision particularly in relation to the true identity of the correct employer but also in relation to quantum but the appeal was only allowed in respect of quantum. The employers have today appeared through Miss Monday of Counsel and we are indebted to her for her careful and indeed persuasive arguments. Neither the employee nor her solicitors are present. She was represented by Mr Wilson, a solicitor before the original hearing. Mr Painter appeared for both Respondents at the Tribunal hearing. The employee's solicitors have written to the Court indicating that they do not intend to attend today and said:
"We intend to leave the matter to the good judgment of the Appeal Tribunal, whose judgment we will be content to accept."
We do not read that as a withdrawal of their cross appeal and we will come back to that matter.[3]The substance of the points of appeal relate to the principles that the Tribunal adopted in relation to aspects of compensation as well as what is said was an excessive award in respect to injury to feelings. That award, of course, was made because although it was unfair dismissal there was also a complaint of discrimination arising from the dismissal and the injury to feelings was awarded in respect of that discrimination.[4]The first two heads of the appeal relate first of all to the fact that the Tribunal appear to have completely failed to deal with what is said today by Miss Monday to be an important aspect namely the chances of a return to work following pregnancy and secondly a failure to discount childcare costs when making the appropriate compensatory award. We will return to those aspects in a moment.[5]The background facts were that the lady had commenced employment in October 1996 was dismissed on 3 March 2002. The Tribunal accepted that after the original employers S & B Car Hire went into liquidation staffing levels had to be reduced and they accepted that it was a situation where it was reasonable to consider redundancies. Mr Painter was in charge of that selection process and he selected the Respondent. There was a background to this particular employee that there may have been something on her disciplinary file but the Tribunal found that there was complete absence of consultation and attempt to find alternative role within the company and the manner of dismissal the Tribunal found to be extremely distressing. She was due to go on maternity leave on 4 March. She was seen on the previous day, 3 March. She thought it was to wish her luck for her maternity leave. In fact it was to be told that she was being dismissed without notice and it was described by the Tribunal in paragraph 25 as a particularly unattractive aspect of the case.[6]The employee would have been on maternity leave, but after that time they found that she did take reasonable steps to find work. For a short time she indeed returned to full time work but she found that it was uneconomical because of childcare costs and by the time of the Tribunal hearing she was working part time. She had asked for a period of two years to find a full time job. The Tribunal however found that she would be able to return to equivalent earnings within a period of about six months of the hearing and there is no challenge to that finding.[7]Returning then to the heads of complaint. The first head is that the Tribunal when awarding her past and future losses for the period of that six months plus past losses should have assessed the chances that she would not have returned to that job in any event and they cite the well-known authority of Ministry of Defence v Cannock [1994] IRLR 509, particularly paragraphs 133 and 134 where Morrison J dealing with losses in this type of case said that:
"The first hypothetical question which an Industrial Tribunal must ask itself is: what are the chances that had she been given maternity leave, and an opportunity to return to work, she would have returned? This hypothetical question (he said) will require careful thought before it is answered. The answer to it is not, with respect to some Industrial Tribunals, a question of fact at all. It is not a question of seeing and believing, or not believing, what the particular applicant says she would have done. She, like everyone else, is entering into the realm of conjecture and speculation. Her evidence, often given many years after the event, as to what she says she would have done had she been given maternity leave, is always relevant, but by no means determinative."
He goes on to say:
"The question is to be answered on the basis of the best assessment that the Industrial Tribunal can make having regard to all the available material."
The problem that we found ourselves is that there is nothing in the documentation from the Tribunal to suggest whether this issue was raised before them or whether they considered it. What appears to have happened is that they accepted the schedule that Mr Wilson, the solicitor had prepared which assumed that she was going to return to work without further consideration of that issue. We have to ask ourselves whether, assuming that the issue was not properly raised by Mr Painter who was then appearing in person, we should allow this matter to be raised before us.[8]Miss Monday cites two authorities to suggest that if it is a basic issue which the Tribunal should have considered then it is one of the exceptions where we would allow this matter to be raised by way of appeal even if they had not been properly raised below. Firstly in Langston v Cranfield [1998] IRLR 172 , the head note sets out that the generally accepted principle that a party will not be permitted to raise new points in appeal which could have been ventilated before must be seen in the context of cases where a principle is so well established that an Industrial Tribunal may be expected to consider it as a matter of course. Further in Glennie v Independent Magazines (UK) Ltd [1999] IRLR 719 it has held that this court may exercise a further discretion when there is an unrepresented party who although strictly could have raised the matters before we should appear to put right what appears to be a glaring injustice.[9]The matter does not end simply with the point in relation to discounting on the basis that she may not have returned to work because my colleague, Mr Gibbs, pointed out at the beginning of the hearing the Tribunal also do not seem to have given consideration to the Polkey issue. In other words, 'Had proper procedures been followed is there any possibility that this lady would in any event have been made redundant?' There is no finding at all by the Tribunal to that effect. True they found this to be a very serious case involving glaring omissions in terms of proper redundancy procedures. But it still seems to us it requires a Tribunal to go through the Polkey process of making assessment as to whether if procedures had been adopted this employee would in fact have been a person to have been selected.[10]We are duty bound with important principles such as these to allow them to be raised now. They were not dealt with by the Tribunal and we are definite in our view that these are matters which will have to be considered by the Tribunal when, as we will be doing, the matter is remitted back to them.[11]Other issues must be dealt with by the Tribunal which were raised on this appeal. There is the short but important point that the Tribunal appear to have failed to discount childcare costs when making a proper comparison between that which she would have earned if she had returned to work and that which she actually did earn. Discounting childcare costs again is a matter which Cannock makes clear, a Tribunal has to do. Paragraph 103 of that decision reads as follows:
"It seems to us a childcare costs which would notionally have had to be incurred to enable the applicant to return to work should be set off in full against her damages for loss of earnings."
That was not done in this case although childcare costs were identified in the schedule. So when the matter is remitted that issue will also have to be dealt with and considered. As to the issue of state benefits there is reference in the papers to a possibility that this lady had applied for benefits, but there is no formal recoupment order and we would invite the Tribunal to consider that aspect of the matter.[12]A further issue relates to what is said to be double counting in respect of allowing loss of earnings from the point of dismissal and also awarding a sum for wrongful dismissal, in other words, failure to give proper notice. We do not see any conflict in making those two awards. If payment in lieu of notice had been paid this employee could have gone out and found another job straight away. An award for failing to give notice is not an amount that we find has to be taken into account when assessing the losses flowing from this dismissal.[13]The final head of appeal as well as the cross appeal relates to the award for injury to feelings which was one of £7,000. It was dealt with by the Tribunal in paragraph 38:
"The reasons are there was evidence that the Applicant was still very upset by her treatment, some 9 months later, and that the treatment she received on dismissal turned what should have been a very happy time into a time of distress and uncertainty."
We have already referred to paragraph 25 of the decision where the Tribunal found that the manner of dismissal could not have been more upsetting - "for the Applicant to go in to a meeting on her last day before taking maternity leave expecting good wishes and to be met with dismissal is something that we find to be particularly unattractive aspect of the case."[14]There are now guidelines set out in Vento v Chief Constable of West Yorkshire [2003] IRLR 102 where at paragraph 65 the Court of Appeal set out guidance in terms of compensation for injury to feelings. There was a middle band between £5,000 and £15,000 which they said should be used for serious cases, which do not merit an award in the highest band. The third category, the lowest category, was 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." The Court of Appeal in paragraph 66 then went on to say this:
"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."
[15]Miss Monday argues that this is a case which should fall fairly and squarely within the lowest category; she submits £3500 at the most but possibly less on the basis that this was a one-off occurrence. She argues that the Tribunal had been affected over much by feelings of indignation and she reminds us of a passage earlier on Vento at paragraph 53 where the Court approved a guidance from Smith J in the case of HM Prison Service v Johnson [1997] IRLR 162 where at p.165 Smith J had said this:
"(i) Awards for injury to feelings are compensatory . They should be just to both parties. They should compensate fully without punishing the tortfeasor. Feelings of indignation at the tortfeasor's conduct should not be allowed to inflate the award."
[16]Our role, of course, in this Court is not to be a second jury in terms of what we would have awarded but to form a view as to whether the Tribunal's award was within the band of reasonableness. In the light of the guidance given in Vento we see no reason to interfere with the Tribunal's award. Quite clearly from the paragraphs of the decision to which we have referred they regarded this as a very serious matter which effectively led to the dismissal of this employee. She lost her job as a result of this act of discrimination and some 9 months later was still upset by what have happened although it is right to say that she had been able to go back to work and of course we accept that there was no independent medical evidence of any particular psychological or psychiatric damage. Having said that however this was a serious matter where the Tribunal heard the evidence. They took a view on the case and we see no reason to interfere with their award. They were entirely justified in regarding it as a serious case which would therefore fall within the second Vento band and we do not propose to ask the Tribunal to reconsider this award.[17]So, the matter will be remitted for consideration of those issues that we have identified in this judgment and there will be a transcript of this judgment so that the Tribunal can look at the points and then consider them. The matter can be remitted to the same Tribunal; whether or not they choose to deal with it on paper or by way of further argument will be a matter for them to decide.[18]We have dismissed the cross appeal. We have been invited to consider making an order for costs against the employee, the Appellant on that cross appeal. Having put in the cross appeal and indeed obtained leave from Mr Justice Wall at the Preliminary Hearing it is right to say that it appears from what we have seen that her solicitors thereafter did precious little to pursue the matter although at no stage actually withdrawing the cross appeal.[19]They failed to deal with the issue of bundles and indeed a direction was made by the Registrar of this Court requiring the parties to attend on 14 August to explain non compliance with the practice direction. That hearing did not proceed once letters had been received and explanations given but the fact remains that it appears from what we have seen little has been done by her solicitors to pursue the matter and of course they are not here today although again we notice that they did not formally withdraw the appeal within their letter.[20]Miss Monday concedes that obviously the majority of the work that her solicitors have done have been in relation to their own appeal which has been partly successful and partly unsuccessful. In a schedule her solicitors have attempted to separate the costs which are referable entirely to the cross appeal rather than the work done on the appeal and obviously we have that schedule in mind.[21]Our view is that we should mark the way in which this matter has been conducted on this cross appeal and particularly the failure to deal with the bundles and indeed the failure to attend today to pursue the matter having got leave from the Preliminary Hearing and looking at the figures that we are presenting and doing the best that we can we would propose to award a sum of £350 to be paid by Mrs Wallington in respect of the dismissal of her cross appeal.